Spurlino Materials, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2007

25-CA-030053 (N.L.R.B. Dec. 17, 2007)

JD–76–07
Indianapolis, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SPURLINO MATERIALS, LLC
and
Cases 25-CA-30053 Amended
25-CA-30054
COAL, ICE, BUILDING MATERIAL, SUPPLY 25-CA-30080
DRIVERS, RIGGERS, HEAVY HAULERS, 25-CA-30104
WAREHOUSEMEN AND HELPERS, AND 25-CA-30156
LOCAL UNION NO. 716, a/w INTERNATIONAL 25-CA-30179
BROTHERHOOD OF TEAMSTERS, 25-CA-30362 Amended
CHAUFFEURS, WAREHOUSEMEN, AND
HELPERS OF AMERICA
Joanne C. Mages & Rebekah Ramirez, Esqs.,
for the General Counsel.
Robert J. Brown, Esq. (Thompson Hine LLP)
& Mary Rita Weissman (The Weissman
Group), for the Respondent.
Geoffrey S. Lohman (Fillenwarth, Dennerline,
Groth & Towe), for the Charging Party.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. The amended consolidated complaint dated
March 21, 2007, and the complaint dated July 18, 2007, stem from unfair labor practice (ULP)
charges that Coal, Ice Building Material, Supply Drivers, Riggers, Heavy Haulers,
Warehousemen and Helpers, and Local Union No. 716, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the Union) filed against
Spurlino Materials, LLC (Respondent or the Company). The alleged violations of Section
8(a)(3), (5), and (1) of the National Labor Relations Act (the Act) relate to drivers that the Union
represents at Respondent’s three Indianapolis, Indiana, area facilities. Most pertain to work
performed at two major jobsites: the Lucas Oil Stadium (Stadium) in 2006, and the AirWest
Distribution warehouse (Warehouse Project) in 2007.
Pursuant to notice, I conducted a trial in Indianapolis, Indiana, on April 24 – 27, May 30 –
31, and October 18, 2007, at which the parties had full opportunity to be heard, to examine and
JD–76–07
5
10
15
20
25
30
35
40
45
50
2
cross-examine witnesses, and to introduce evidence.1 All parties filed helpful posthearing briefs
that I have duly considered.
At the General Counsel’s unopposed request, I take official notice that on November 8,
2007, Judge David F. Hamilton of the United States District Court for the Southern District of
Indiana, Indianapolis Division, issued an injunction against Respondent pursuant to the
Regional Director’s petition for such under Section 10(j) of the Act. As Judge Hamilton
articulately explained, the standard he applied in determining injunctive relief appropriate was
not that of passing on the merits of the underlying ULP charges, a role vested at the first
adjudicatory level with me.
I also grant the General Counsel’s unopposed Motion to Correct Transcript.
Issues
Did Respondent violate Section 8(a)(5) and (1) by the following conduct:
1. In May 2006, created the position of portable batch plant driver (portable plant driver)
at the Stadium, without first affording the Union notice and an opportunity to bargain over the
conduct and its effects?
2. In May 2006, implemented a new evaluation and testing procedure, upon which to
select employees to work as portable plant drivers, without first affording the Union notice and
an opportunity to bargain?
3. In about late July 2006, created the position of alternate/back-up portable plant driver
(alternate driver) at the Stadium, without first affording the Union notice and an opportunity to
bargain?
4. In about late July 2006, by Jeff Davidson, operations manager, bypassed the Union
and dealt directly with unit employees by offering them alternate driver positions?
5. Unreasonably delayed furnishing the Union with information it requested on August
24, 2006, concerning Respondent’s records of union dues deductions made from unit
employees’ paychecks and their remittance?
6. From June 11 – 28, 2007, assigned unit work to nonunit employees; more
specifically, utilized subcontracted trucks and drivers, employees from Spurlino’s Ohio
operations (Spurlino Ohio), and nondriver employees, for concrete slab pours at the Warehouse
Project, rather than using unit employees?
7. On about June 11, 2007, altered the manner in which it assigned unit employees to
perform unit work; more specifically, solicited unit employees to volunteer for slab pours at the
Warehouse Project, rather than simply using the regular call-in referral system?

1I left the record open on May 31 to afford the General Counsel the opportunity to
investigate pending charges that the Union had filed against Respondent on May 24, in Case
25-CA-30345. Subsequently, the General Counsel found merit to certain charges in Case 25-
CA-30362, filed on June 12, and issued a complaint on July 18. By order dated July 30, I
granted its unopposed motion to consolidate such complaint with the outstanding amended
consolidated complaint.
JD–76–07
5
10
15
20
25
30
35
40
45
50
3
Did Respondent violate Section 8(a)(3) and (1) by the following conduct against the named
employees because they engaged in union activity:
1. From about February 10, 2006 until about June 7, 2006, failed to assign employees
Matt Bales, Ron Eversole, and Gary Stevenson to the Stadium?
2. In about early June 2006, failed to select them as portable plant drivers?
3. In about late July 2006, failed to select them as alternate drivers?
4. On August 26, 2006, indefinitely suspended Stevenson, and on about
February 25, 2007, discharged him?
Finally, did Respondent commit an independent violation of Section 8(a)(1) on August
25, 2006, when Davidson continued to interview Stevenson after denying his request for union
representation at an interview at which Stevenson had reasonable cause to believe that
disciplinary action might result?
Witnesses and Credibility
The General Counsel’s witnesses included Bales, Eversole, and Stevenson; Union
Attorney Neil Gath, Union President Gary Green, Union Vice-President Steve Jones; Drivers
Kenneth Cox, Eric Kiefer, and Terry Mooney; and Matt Ahlquist, area lead for Lithko, the
contractor under which Respondent performed work at the Warehouse Project.
Respondent called its admitted agents Davidson, Majority Owner Jim Spurlino
(Spurlino), Consultant Mary Rita Weissman (Weissman) of The Weissman Group (TWG),
General Manager Gary Matney, and Dispatchers Wilma Leary and Donald Rollins.
On some matters, the testimony of various witnesses from both sides was completely
consistent; on others, testimony was contradictory, not only between witnesses from opposing
parties but also between a party’s witnesses themselves. I have taken into account the natural
diminution of recall when events occurred over a period of time rather than on one or two
specific occasions.
Ahlquist is employed by a neutral third party with no stake in the proceedings. He
appeared candid and answered questions posed by Respondent’s counsel on cross-
examination as readily as he did those asked by the General Counsel on direct. His testimony
was also consistent with the documentary evidence of record. Accordingly, I credit what he
stated.
Cox, Kiefer, and Mooney are not alleged discriminatees and were not active union
proponents. Thus, Cox served as an election observer for the Company, Kiefer was neutral
during the campaign, and Mooney’s sole union activity was signing an authorization card.
These drivers would have no apparent vested interest in slanting their testimony either for or
against Respondent, and they did not seem to do so during their testimony. They appeared
candid, and I credit them.
Eversole and Bales struck me as generally credible, and I credit their testimony for the
most part. Stevenson, who apparently has limited education and seemed somewhat intimidated
by the trial setting, did not always testify smoothly, and at different times related events
JD–76–07
5
10
15
20
25
30
35
40
45
50
4
differently, particularly as to what was said at his August 25, 2006 interview with Davidson. I do
not believe he was deliberately untruthful but nevertheless find portions of his testimony
unreliable.
Turning to Respondent’s witnesses, I find that Weissman and Rollins were the most
reliable, with an exception in each case. Although Weissman occasionally tried to slip in
statements in support of Respondent’s legal positions, she generally answered questions,
including those I posed, readily and without an apparent effort to formulate the “right” answers.
She was Respondent’s chief negotiator at bargaining sessions, and I believe she would have
had a more solid recall than Green or employees on the Union’s bargaining committee who
testified on what was said during negotiations. Only when it came to her testimony on
Spurlino’s role in decision-making did Weissman equivocate and lose her otherwise self-
assured demeanor.
Rollins seemed candid, and he has a great deal of experience both in driving and
dispatching. As opposed to Rollins, O’Leary has never personally been inside the trucks, and
her testimony struck me as more calculated to help Respondent’s case. Accordingly, I credit his
testimony over hers where they diverged. On one matter—whether the call-in list was strictly
followed in dispatches to the Stadium—Rollins’ testimony (and that of other management
witnesses) was contradicted not only by the testimony of General Counsel’s witnesses but,
more significantly, by Respondent’s own documents. Therefore, I do not credit his testimony
thereon.
Respondent’s remaining witnesses were often not credible. Spurlino claimed lack of
knowledge on a wide range of subjects and was frequently vague or nonresponsive, even
though the testimony of other management witnesses and Spurlino himself show his active role
in managing the Indiana facilities. His testimony regarding Stevenson’s suspension was notably
suspect. Thus, he more than once first testified that the final decision to suspend Stevenson
was a consensus between him, Weissman, Matney, and Davidson, but Matney and Davidson
directly contradicted this testimony, and Spurlino himself later retracted it.
Ironically, both Matney and Davidson seemed noticeably more at ease in testifying as
adverse witnesses under Section 611(c) than they did in testifying as witnesses in Respondent’s
case-in-chief. During the latter, both exhibited considerably greater defensiveness and more
stress. Matney, in fact, became argumentative at times. This causes me to believe that they
were not comfortable in testifying in support of Respondent on certain subjects and to have
doubts about the reliability of their testimony thereon.
Other factors undermine the reliability of their testimony in general. Matney, particularly
as Respondent’s witness, frequently hesitated in giving answers and often professed not to
recall specific details. The latter was most noticeable regarding conversations he had with
employees prior to the election on January 13, 2006. Further, certain aspects of his testimony
were not believable. For example, he testified that both Eversole and Stevenson told him more
than once prior to the election that they did not support the Union and never told him they
changed this position. Yet, he also testified that he was not surprised to learn they were later
appointed to the Union’s negotiating committee. Similarly, his testimony that he did not know on
the day of the election who the Union’s observers were flies in the face of his presence at
Kentucky Avenue that day, and the uncontroverted fact that Respondent engaged in a vigorous
preelection campaign to discourage employees from voting for the Union and evinced a strong
interest in the outcome.
JD–76–07
5
10
15
20
25
30
35
40
45
50
5
Matney’s credibility was further weakened when he professed not to have understood a
simple question that had been posed by Respondent’s counsel (concerning his preelection
statements to drivers about collective bargaining), after having first given an ambiguous and
evasive answer. I do not find this plausible from a high-level manager who had no problems
understanding questions from the General Counsel and the Union’s attorney when he testified
as a 611(c) witness. Finally, I do not believe that all of the five drivers who testified that Matney
made a variety of antiunion statements before or shortly after the election fabricated their
testimony, and I therefore do not credit Matney’s denials thereof.
Davidson’s testimony about the evaluation process used to select drivers to staff the
portable plant was frequently ambiguous, shifting, and even directly contradictory, particularly
on how employees were evaluated and how various factors were weighed. For example, on the
question of whether grades of “A” or “B” were required on certain criteria, he first testified that
there were two such criteria, then added several others, and finally stated that there were none.
He also failed to give any specific supporting information behind his purported reasons for not
selecting Bales, Eversole, and Stevenson, and some of his statements about them were
conflicting. I note that their personnel files, subpoenaed by the General Counsel, contain no
documentation of their alleged deficiencies. Moreover, several driver-witnesses contradicted
his testimony about the role driving tests played in selecting portable plant drivers.
Finally, as to credibility, I note the well-established precept that witnesses may be found
partially credible, because the mere fact that a witness is discredited on one point does not
automatically mean that he or she must be discredited in all respects. Golden Hours
Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, it is appropriate to weigh the
witness’ testimony with the evidence as a whole and to evaluate its plausibility. Id. at 798–799;
see also MEMC Electronic Materials, 342 NLRB 1172, 1200 fn. 13 (2004), quoting Americare
Pine Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (when examining testimony, a trier of fact is not
required “to accept the entirety of a witness’ testimony, but may believe some and not all of
what a witness says”); Excel Container, 325 NLRB 17 fn. 1 (1997) (it is quite common in all
kinds of judicial decisions to believe some, but not all, of a witness’ testimony).
Facts
Based on the entire record, including witness testimony, documents, and the parties’
stipulations, I find the following facts.
Spurlino, Respondent’s majority owner, owns and operates a number of plants in various
states, all engaged in supplying and delivering ready-mix concrete in the construction industry.
His business enterprises are headquartered in Ohio. In about November 2005, he purchased
the assets of American Concrete as a limited liability company and took over its three facilities in
the Indianapolis, Indiana, area: Kentucky Avenue (or South Plant) in Indianapolis, Linden, and
Noblesville (or North Plant). Jurisdiction has been admitted, and so I find.
Spurlino visits the facilities on an average of twice monthly for 2 days each, mostly going
to Kentucky Avenue, where management offices are located. Matney, as general manager,
oversees the entire operation on a day-to-day basis. Davidson, as operations manager, has
direct responsibility over quality control, plant and truck maintenance, and dispatchers, drivers,
and batch men. He reports to both Matney and Spurlino, with whom he typically talks several
times a week. George Gaskin, also classified as an operations manager, assists him. Angie
Johnson handles payroll, employee benefits, and recordkeeping functions. At all times relevant,
Respondent employed three dispatchers, all located at Kentucky Avenue.
JD–76–07
5
10
15
20
25
30
35
40
45
50
6
For the Indiana facilities, Respondent has at all times outsourced resources and labor
relations, including Union matters, to TWG. Respondent’s management in Indiana is in contact
with TWG on a regular basis, at least three or four times weekly. Weissman has been TWG’s
primary contact person.
At the time of trial, Respondent employed approximately 15 drivers and one batch man
(or plant operator) at Kentucky Avenue; about eight drivers and one batch man at Noblesville;
and about four or five drivers and one batch man at Linden.
I. Union Activity and Election
In late 2005, drivers, including Bales, Eversole, and Stevenson contacted the Union,
which, on December 6, 2005, filed a petition for an election. The Union considered the three,
along with Kentucky Avenue Batch Man Scotty Sullivan, to be members of its bargaining
committee during the preelection campaign period. They talked in favor of the Union and
solicited employees to sign authorization cards.
A number of employees testified about one-on-one meetings with Matney following the
filing of the petition, and it is undisputed that Respondent engaged in a preelection campaign to
dissuade employees from voting for the Union. Respondent’s preelection conduct was the
subject of a prior complaint and is not before me for adjudication. Nevertheless, I can
appropriately consider such conduct as background evidence in this proceeding.
Matney testified that “John” from TWG provided management with a series of about six
bullet-point letters on various topics to discuss with drivers.2 Matney and Gaskin divided up the
Kentucky Avenue drivers for such meetings, with Matney having six or seven on his list.
According to Matney, he met on a one-to-one basis with drivers he had been assigned,
usually in his office for 5–15 minutes. Initially, he testified that he followed the contents of the
letters “generally fairly closely.”3 However, on cross-examination, he testified that what he read
to them “varied, really,” depending on whether he or the driver was pressed for time.4 He also
testified that he did not go over all of the letters with all of his assigned drivers because some
drivers were easier to “get a hold of” than others.”5 In light of his status as Respondent’s
highest-level manager in Indiana, I find incredible his professed inability to secure the presence
of employees, especially when Respondent’s labor relations consultant had directed that he
speak to them.
Matney’s testified inconsistently concerning which drivers he spoke to. He first stated
that he spoke to four or five, including Bales, Eversole, Stevenson, Randy Poindexter, and there
“may have been a few more.”6 He also testified that he “believed” he also talked to Cox, who he
“believed” was on his list, but could not recall how many times. He did not raise Kiefer’s name
until the General Counsel’s redirect-examination—and then in response to the question of the

2 Respondent furnished three of them, all signed by Matney, dated December 29, 2005, and
January 3 & 5, 2006. R. Exh. 1.
3 Tr. 788.
4 Tr. 815.
5 Tr. 791; semble, Tr. 813.
6 Tr. 779–780.
JD–76–07
5
10
15
20
25
30
35
40
45
50
7
driver with whom he had the most conversations on the letters.7 This is another indication of
Matney’s lack of reliability as a witness.
Matney was vague about what he discussed with drivers. He could recall only “some
discussion about bargaining . . . how bargaining took place. There were discussions about the
length of time that first contracts generally take.”8 He gave no other description about what was
said. When Respondent’s counsel specifically asked whether he had any conversations about
collective bargaining outside the scope of the letters, Matney was ambiguous and evasive. He
first answered that several employees had questions for him about the Company but could
recall no specifics. He then said the questions were related to operations, such as the types of
trucks. Next, he stated, circularly, “[T]hese were just conversations that we were having during
the course when we were talking about the collective bargaining, questions that they asked.”9
Finally, he claimed that he “didn’t understand” the question and could recall no such
conversations.10
Matney’s testimony about his conversations with Eversole and Stevenson was as
follows. They approached him and volunteered that they were both on the Company’s side and
willing to work with him by circulating a petition against proceeding with the election. Eversole
asked if Matney could provide such a petition and was told “no.” In later conversations,
Eversole stated that his sister had prepared one, which would be circulated to drivers for their
signatures, and that he would help to get it signed. Stevenson also told Matney a couple of
times after the three of them met that he was behind the Company and would assist
management.
Oddly, although Matney testified that Eversole and Stevenson had evinced antiunion
sentiments to him, he also testified that he was not surprised when he learned after the election
that they had been elected to the Union’s bargaining committee. His explanation, that he “fully
anticipated that somebody from the group would be there and they were the ones who were
elected,”11 was a non-sequitur that further undermines Matney’s credibility, as does the
implausibility of his testimony that Eversole and Stevenson sua sponte offered to get drivers to
sign antiunion petitions, when they were among the employees who approached the Union and
sought drivers to sign authorization cards.
For the myriad of reasons above, Matney’s testimony about what he said to drivers
during the one-on-one meetings was unreliable.
The following employees, in the order they testified, recounted conversations with
Matney prior to, or shortly after, the election: Eversole, Stevenson, Bales, Kiefer, Mooney, and
Cox. Their testimony on these was generally credible, plausible, and not inconsistent, and I
credit it over Matney’s denials. The one exception is Stevenson, whom I credit only partially for
reasons to be stated.
Eversole’s first such conversation with Matney was in December 2005, when the latter
called him in to the mechanics’ shop. Matney laid a piece of paper on the desk (presumably,
the NLRB notice that the petition had been filed), and said, “I cannot believe you guys acted in

7 Tr. 814.
8 Tr. 788.
9 Tr. 797.
10 Tr. 797–798.
11 Tr. 824–825.
JD–76–07
5
10
15
20
25
30
35
40
45
50
8
such a fast manner to run to the Union to try to get the Union in this company instead of giving
Jim Spurlino a chance . . . [Y]ou guys are messing up a good thing that could happen here, and
now you’ve blown it for yourselves. . . . I cannot believe you’re doing this to us.”12 Eversole
replied that he and the other employees felt it was best for their families.
Matney initiated about 20 subsequent conversations with Eversole. Generally similar in
content, they took place in various locations, including the mechanics’ shop, drivers’ room, and
the management office. Matney stated it was their (the drivers’) decision but that he did not
want the Union, and the Company would not stand for a union. He further stated that Spurlino
had gone through union organizing several times, and “only once did it even get to a bargaining
session. And he [Spurlino] held it out for so long that the Union walked away from the table.”13
At one meeting, Matney asked Eversole to circulate an antiunion petition, and he replied
that he was not interested. Matney pressed him, and he then asked what he needed to do.
Matney replied it was a petition that needed to be signed by at least 51 percent of the
employees to stop the election. In later conversations, Matney asked him if he had gotten the
petition signed. During their last conversation, 2 days before the election, Eversole stated that
the drivers did not want to sign because they were fearful of repercussions. Matney replied
there would be no repercussions, and he accused Eversole of not being a man of his word.
Stevenson also had numerous conversations with Matney, either in the mechanics’ shop
or the break room. His testimony about them was often not easy to follow, some of it was
confusing, and some was implausible. Accordingly, I credit his testimony on this subject only in
part and where consistent with Eversole and the credited testimony of other drivers.
I find that on December 10 or 11, soon after the petition was filed, Stevenson had a
conversation with Matney in the mechanic’s shop.14 Matney asked why the drivers wanted a
union and to give management a chance. Stevenson, for whatever reason, led Matney to
believe he would assist in getting rid of the Union. The next morning, in the same location,
Matney asked Stevenson if he (Stevenson) thought he could get rid of the Union. Stevenson
asked how, and Matney replied, to take a petition around and have people sign.
I further find that Gaskin gave Stevenson such a petition either later that day or the next
morning. A day or so thereafter, Stevenson was in the break room when Matney asked how the
petition was coming and if Stevenson had encountered any problems getting signatures.
Stevenson replied that it was going slowly but that he was still trying. Matney asked if there
were any people to whom he needed to talk, to persuade them to sign the petition. Stevenson
replied “no.” A day or 2 later, Matney called him to the mechanics’ cage and again asked how
the petition was coming. Stevenson replied that he was still having problems.
On the other hand, I do not credit Stevenson’s testimony that in the last conversation
above, Matney then asked who had started “this union shit” and became irate when Stevenson
responded that he had. Such question would have been highly out of context and is one that I
would expect Matney would have asked much earlier. In that event, I doubt if Matney would
have continued to press Stevenson to spearhead an antiunion effort. I also do not credit

12 Tr. 409.
13 Tr. 411–412.
14 Stevenson testified that it was in the presence of Bales, Cox, and Eversole, but his
subsequent testimony suggests he was alone with Matney. None of the named drivers testified
about such a conversation.
JD–76–07
5
10
15
20
25
30
35
40
45
50
9
Stevenson’s incredible testimony that 2 or 3 days later—after Matney’s purported angry reaction
at Stevenson’s union activity—Matney again called him to his office and asked how the petition
was going, and was he (Stevenson) still trying to get rid of the Union.
Matney called Bales to the management office a week before Christmas 2005. He
stated that Spurlino had been through this (union organizing activity) six times and “had
prolonged it 16 to 18 months, long enough that the union walked away from the table.”15 In
subsequent conversations, Matney asked Bales if he understood “that stuff.” In at least one
conversation, Matney stated that he knew that Bales had already made up his mind how he was
going to vote. Bales replied that he and Eversole were best friends but did not always agree.
On at least two occasions, Matney asked Bales if he understood that the Company could not
retaliate.
Kiefer characterized himself as “neutral” during the preelection period, during which
Matney initiated about three “casual” meetings with him. Therein, Matney explained what the
Union could not do for him and stated that the Company wanted a “no” vote.
Mooney’s sole union activity consisted of signing a union authorization card. Matney
had three meetings with him prior to the election, all in the management office. The first was on
December 20, 2005. Matney advised Mooney that he did not have to talk to him if he did not
wish. He asked Mooney to give the Company a chance and said that Spurlino would take care
of the drivers if they did so; however, if they voted for the Union, it would probably take about 18
months to get to negotiations. In the second conversation, a week later, Matney started the
conversation in the same way. He then said he wanted Mooney to convince the other drivers
that if they dropped the Union, they would suffer no repercussions, and nobody would get fired.
He added that the drivers did not need a third party to intervene. In their third conversation, on
January 4, 2006, Matney stated that “[I]t would take 18 months if we did vote the union in, for
negotiations, to start negotiating and that Jim Spurlino would drag it out and that he would pay
any fines.”16 He also said that just because the drivers were union did not mean they would get
all the union jobs, and he repeated that the drivers did not need a third-party intervenor.
An election was held on January 13, 2006. The Union’s observers were Eversole at
Kentucky Avenue, Stevenson at Linden, and Bales at Noblesville. Cox was the Company’s
observer at Kentucky Avenue. For reasons stated, I discredit Matney’s testimony that he was
not aware of the identity of the Union’s observers that day and conclude that management had
such knowledge. I note that he was present at Kentucky Avenue on the day of the election and
find disingenuous his testimony on this point. After the election results were announced, John
Coit, one of the Company’s representatives at the preelection conference (and perhaps the
same individual with TWG who prepared the letters for Matney to read to drivers) stated, “They
all lied. All those mother-fuckers voted yes.”17
Following the announcement of the election results in favor of the Union, Cox and
Gaskin had a conversation outside the break room, in which the latter stated that he wished the
vote had gone differently, and “Stuff around the plant was going to be a whole lot different and
things were going to get uglier than what they were.”18

15 Tr. 667.
16 Tr. 600.
17 Eversole at Tr. 420; semble, Bales at Tr. 672. See GC Exh. 20, preelection conference
attendance sheet.
18 Tr. 513. Stevenson recalled similar statements that day but attributed them to Matney.
JD–76–07
5
10
15
20
25
30
35
40
45
50
10
A couple of days later, Matney, as he was going upstairs, told Stevenson that “It is just
going to get worse now, union [sic] makes me do mean things . . . .”19 In a similar vein, in a
conversation with Cox the following week in or around the break room area, Matney stated that
he wished things had gone better as far as the election and that drivers were going to “lose a lot
of stuff that we could have had that [Spurlino] was going to offer regarding not having a union,
that we were going to lose all of that as far as bonuses and more money and vacations and stuff
like that . . . Now it was all going to be gone . . . [T]hings at the plant were going to get a whole
more [sic] uglier.”20 Cox responded that drivers had not known that the Company was going to
give them those benefits. Matney stated that he felt Eversole was “the ringleader in all this that
got everybody involved” and called him a “nigger.”21
On January 23, 2006, the Union was certified as the representative of all full-time and
regular part-time drivers and plant operators/batch men at the three facilities.22
II. Dispatch System
When Respondent purchased the facilities from American Concrete in November 2005,
it kept in place the latter’s dispatch system, to which it claims to have adhered consistently
since.
Although the policy has never been reduced to writing, its basics are not at issue. At
each location, a separate call-in list is maintained daily, listing drivers in order of their seniority
or dates of hire, with the most senior at the top (GC Exh. 2, for January 2, 2006, is
representative). New hires are added to the bottom. In making assignments for the following
day, dispatchers start at the top of the list and go down, skipping drivers off on scheduled leave
or otherwise not available. Drivers call in after 7 p.m. for a recorded dispatch message telling
them, by facility, what time each should report the following day. Reporting times vary,
depending on customer orders and the intervals between deliveries.
Drivers who return to the facility after completing their initial assignments of the day are
ordinarily sent out again on further assignments in the order of their return. The first drivers in,
either in the morning or during the day, are the first to be loaded out. The only exceptions,
occurring less often than once a month, are when a special type of truck is required or because
a customer does not want a certain driver.23 All of the trucks have GPS, and dispatchers can
track their movements at all times and thereby know when they are back at the facility and
ready for another load. This does not hold true if the tracking mechanism in the truck’s box is
not working, an uncommon event.24
Respondent owns the trucks its drivers use. Each driver is assigned and normally
drives a particular truck, although, for a number of reasons, including vehicle repair, such is not
always the case. New drivers are normally sent out with more experienced drivers for about 2
weeks, as training, before driving on their own. They take no driving test as such.

19 Tr. 577.
20 Tr. 516.
21 Tr. 517–518.
22 Jt. Exh. 2.
23 Testimony of Rollins at 896–897. Semble, Matney’s testimony at Tr. 77 (exceptions are
“seldom.”)
24 See Rollins’ testimony at Tr. 893, 913.
JD–76–07
5
10
15
20
25
30
35
40
45
50
11

III. The Lucas Oil Stadium Project
When Respondent contracted with Baker Concrete (Baker) to provide ready-mix
concrete at the Stadium, it was required to sign a letter of assent to the Project Labor
Agreement for Work Stabilization for Stadium and Convention Center Expansion Construction
(PLA), entered into on August 9, 2005, between the Indiana Stadium and Convention Building
Authority, Hunt Construction Group, Inc., as the current construction manager for the project,
employers who are or may become signatory to the agreement; and the Central Indiana
Building and Construction Trades Council and its affiliated unions.25 The Union is among the
signatory unions. Following are relevant PLA provisions:
Art. 2.1 – The PLA applies to employers who perform construction work on the project at
the project site.
Art. 2.3 – “. . . . This Agreement (including the applicable collective bargaining
agreements listed in Attachment C . . . represents the complete understanding of the Parties
. . . . The provisions of this agreement shall control construction of this project and take
precedence over and supersede provisions of all the Unions’ collective bargaining agreements
. . . which conflict with the terms of this Agreement. . . .”
Art. 2.4 – “[E]ach Employer, before performing any Construction Work on the Project,
shall become signatory and bound by the terms and conditions of this Agreement. . . . ”
Art. 2.11 – The delivery of concrete, sand, gravel, asphalt, ready mix, and/or aggregate
is included within the scope of this agreement.
Art. 3.1 – “[E]ach Employer agrees to recognize the appropriate Union(s) signatory to
this Agreement, as the sole and exclusive bargaining agent of all craft employees performing
construction work on the Project within the scope of this Agreement.”
Attachment C referenced numerous labor agreements by trade, including the Uniform
Building Construction Agreement between the Associated General Contractors of Indiana, Inc.
and the Union, effective June 1, 2005 through May 31, 2008.26 Article 1 of this agreement
provides that the employer recognize the Union as the exclusive representative and bargaining
agency for several categories, including truck drivers, covered by the agreement. Article 32
sets out hourly wage rates by classification.27
IV. Dispatch of Drivers to the Project, February 10 – June 7, 2006
On about February 10, 2006, Respondent first sent out drivers to work on the Stadium.
Consistent with Respondent’s practice of normally using the plant nearest to a delivery site,
almost all of the loads sent to the Stadium were from Kentucky Avenue, the geographically
closest. On occasion, if the need were great enough, drivers from the other two facilities were
also used. New drivers, after about 2 weeks of training, were dispatched to the Stadium in the

25 Jt. Exh. 4.
26 Jt. Exh. 5.
27 As of June 1, 2005, drivers $20.95--$21.10; as of June 1, 2006, $21.83–$21.98.
Respondent’s wage rate was $17.50 an hour.
JD–76–07
5
10
15
20
25
30
35
40
45
50
12
normal order of dispatch. At all times, drivers used their regular time cards for non-Stadium
deliveries but separate time cards for Stadium deliveries, for which they were paid more
pursuant to the PLA.
The General Counsel contends that prior to the operation of the portable plant on June
8, 2006, Respondent bypassed union supporters Bales, Eversole, and Stevenson by loading
other drivers either before or after them, instead of following the normal dispatch procedure.
At the time, Eversole was first on the call-in list, followed by Mooney, Cox, Stevenson, Bales,
approximately two other drivers, and then Kiefer. Respondent’s witnesses uniformly testified
that the normal dispatch procedure was used as on any other job However, their testimony
was not borne out by records that Respondent furnished pursuant to subpoena.
Thus, General Counsel’s Exhibit 19, dispatch tickets from February 16 – March 24,
2006, shows that Mooney, Kiefer, and Cox were dispatched most often to the Stadium during
that period. According to the General Counsel’s calculations, Mooney received 50 trips, Kiefer
44, and Cox 41, or approximately 45 percent of all such dispatches.28 Bales was fourth with 31,
followed by Sam Southerland, a newer employee (he was not employed as of January 2006)
with 15, Stevenson 13, and Eversole 11. The remaining eight drivers had between two and
seven. Respondent’s analysis of General Counsel’s Exhibit 4, which shows hours worked at the
Stadium by driver from February 13, 2006 through April 10, 2007, reflects that for the period
from May 1 – June 9, 2006, Mooney worked 62 Stadium hours, Eversole – 61; Kiefer – 57;
Bales – 54; Stevenson – 48; Steve Miller – 48,Cox – 47; and Mark Sims – 43.29 Therefore,
Mooney was the only driver who received more Stadium hours than Eversole during that
timeframe, and Mooney and Kiefer the only ones who had more such hours than Bales and
Stevenson, out of normal dispatch order.
These records substantially corroborate the basically consistent testimony of Bales,
Cox, Eversole, Kiefer, and Mooney that for early dispatches to the Stadium, Cox, Kiefer, and
Mooney, and later Bales, were sent out of their normal call-in list dispatch order.
Respondent had given Cox, Kiefer, and Mooney new trucks in late January or early
February 2006. Gaskin told Cox that he and the other two drivers were selected to receive
them based on a 15-point system, including work performance, time on the job, and other
factors.30 Davidson later told Cox that the reason he, Kiefer, and Mooney had been given
loads to the Stadium was that Respondent “wanted the new trucks shown on the job.”31 Cox
heard him say this more than once. Those were the trucks that were initially sent to the
Stadium, with other trucks being dispatched there only if big pours required them.32
Based on the preceding, I find that the favored treatment Cox, Kiefer, and Mooney
received for Stadium assignments was due to their driving new trucks that Respondent
reasonably wished to display when it started performing work at the Stadium.

28 GC Br. at Attachment A.
29 R. Br. at 20 (hours are rounded off).
30 Unrebutted testimony of Cox at Tr. 524–525.
31 Unrebutted testimony of Cox at Tr. 523.
32 Testimony of Mooney at Tr. 617; Bales at Tr. 679.
JD–76–07
5
10
15
20
25
30
35
40
45
50
13
V. The Portable Plant
At Baker’s initiation, Respondent set up a portable batch plant at the Stadium in
approximately May 2006, with the anticipation that it would operate for about a year (Matney
and Davidson) or through the end of 2006 (Spurlino). It remained in operation until
approximately March 2007, when it was dismantled due to a decrease in the volume of work.
Davidson was in direct charge of its day-to-day operations, with Matney and Gaskin
occasionally also having a role. At Respondent’s three plants, the drivers used front-discharge
trucks. However, Baker suggested that Respondent use rear-discharge trucks at the portable
plant because they loaded faster and mixed more thoroughly. Respondent first assigned drivers
to the portable plant on June 8, 2006.
The General Counsel does not contend that the establishment of the portable plant or
the use of rear-discharge trucks there per se violated the Act

A. Portable Plant Drivers and the Call-In List
General Counsel’s Exhibit 14 is a memo dated June 7, 2006, signed by Davidson. It
stated that on days when the portable plant was not in operation, the portable plant drivers
would be at the bottom of the call-in list at their home plants. Further, once the project was
completed, those drivers would return to their home plant and be restored to their original places
on the call-in list. Davidson was uncertain whether this was shown to employees before or
after the selections were made for the portable plant, and he was very vague about whether it
was posted or not. When asked the simple question whether he instructed anyone to distribute
it, he replied, “It was—yes, I’m sure I did or—or maybe I did. It’s been over a—you know, a year
ago and I just don’t recall.”33 I credit the testimony of Cox, Eversole, Kiefer, and Stevenson,
that they never saw the memo, No driver testified that they did. Accordingly, I find that the
memo was not disseminated to employees. Eversole, in fact, did not learn until after July 2006
that portable plant drivers would revert to their former call-in list positions at their home plants
once the portable plant closed.
Davidson professed not to recall who decided that the portable plant drivers would be at
the bottom of their home plant call-in list on days that the portable plant was not operating. In
light of Davidson’s integral involvement in the portable plant’s preparations and operations, I find
this answer difficult to accept, especially when I credit Matney’s testimony that he had nothing
to do with the decision. In any event, Weissman conceded that nothing was said during
bargaining sessions about how portable plant drivers would be treated when they worked out of
Kentucky Avenue.
B. Selection of Drivers for the Portable Plant
As with most personnel matters concerning the drivers, the Company has no written
policies regarding transfers from one facility to another. Since Davidson has worked for
Respondent in Indiana (he previously worked at Spurlino Ohio), there has been only one
temporary transfer and no permanent transfers.

33 Tr. 302.
JD–76–07
5
10
15
20
25
30
35
40
45
50
14
Spurlino, as was so frequently the case during his testimony, was evasive when asked if
he was involved in creating the portable plant driver position. Instead of giving a responsive
answer, he replied, “[W]e did not think of it as creating a new position.” 34
According to Davidson, Respondent determined not to use the normal call-in list for the
portable plant because Respondent was a new concrete company in the area and wanted to put
its “best foot forward” by selecting reliable individuals who would not have attendance
problems.35 This resulted in the first and only time that drivers at the Respondent’s Indiana
operations have been subject to performance reviews or formal driving tests.
On about May 12, 2006, Respondent posted in the drivers’ break room at Kentucky
Avenue a notice with that date from Matney,36 stating:
In the near future we anticipate erecting a portable plant adjacent to the Stadium project.
Any employee interested in working out of the plant for the duration of the project should
notify the Company in writing of this interest by May 17, 2006. The notification of
interest should include your name and experience with rear-discharge trucks.
Wages and benefits for this project are set by the project agreement with the Teamsters.
Stevenson asked Davidson that day how seniority would work and how they would pick the
drivers. Davidson responded that selection would be based on the driving test and also that
portable plant drivers would lose seniority at Kentucky Avenue and go to the bottom of the call-
in list.
Subsequently, 13 drivers, including Bales, Eversole, and Stevenson signed the notice.
Wayne Thomerson added a comment, “None Will Learn.” One driver from another facility also
expressed an interest. Of the 13, only Bales and Eversole submitted to Davidson written
notifications of interest as per the announced requirement.37 Both stated that they had no rear-
discharge truck experience.
Davidson ultimately selected Kiefer, Mooney, Thomerson, and John Pinatello. His
testimony regarding the selection process was hazy, often internally inconsistent, and
contradicted by driver-applicants.
He testified that performance was the criteria—attendance, customer service, truck
cleanliness, plus experience, including driving rear-discharge trucks. He conducted no personal
interviews of applicants but rather, he testified, had knowledge of the experience of the four who
were selected through their job applications or casual conversations. However, he could not
recall the names of any of those to whom he talked casually. He was also uncertain whether he
discussed with the dispatchers any of those selected. He averred that the only documents he
reviewed were job applications and attendance records and conceded that he did not check
employees’ personnel files or look at any safety records.

34 Tr. 177.
35 Tr. 271.
36 GC Exh. 5.
37 GC Exhs. 11 & 12.
JD–76–07
5
10
15
20
25
30
35
40
45
50
15
I note that, although Davidson indicated at certain points in his testimony that experience,
including driving rear-discharge trucks was a consideration, Kiefer and Mooney testified they
had no rear-discharge truck driving experience. Thomerson (who had indicated the same in
writing) and Pinatello were both recent hires, their names not even appearing on the January 2,
2006, call-in list.38 Moreover, Davidson also testified that he did not take into consideration the
years employees had worked for Respondent or American Concrete.
The sole documents to reflect the evaluation process are contained in General
Counsel’s Exhibit 13, the “performance review cards” that Davidson and Gaskin prepared for
each driver-applicant on about May 25, 2006. Davidson graded drivers “A” to “F” in 13
categories relating to performance, and he wrote in the comments appearing at the bottoms of
some of the evaluations. Experience and experience with a rear-discharge truck were not
among the listed categories and were not otherwise mentioned in any of the evaluations.
A review of the evaluations makes somewhat puzzling Davidson’s testimony that the
Company chose drivers who would put its “best foot forward.” Thus, he commented about
Mooney: “Attitude sometimes below standards. Also with customers” and about Kiefer, “Eric
could be much better if he applied himself.”39
In later testimony, Davidson averred rather curiously that neither Bales’ nor Eversole’s
evaluations contained any “stalls” but that they were “not as qualified” as some of the others.40
He then went on to testify, for the first time, that he basically categorized drivers into three
groups—best qualified, qualified, and not qualified, and that Bales and Eversole were in the
second category. He also testified that Stevenson had a “horrible truck cleanliness” problem
and believed that Stevenson had attendance problems, and therefore was assigned to the third
category.41 Respondent submitted no records showing anything in Stevenson’s’ personnel files
regarding attendance or truck cleanliness. Davidson later conceded that there was no actual
policy in place on truck cleanliness and that in several conversations, he merely asked
Stevenson to improve on this. When asked about Stevenson’s attitude (for which he was rated
“F”42), Davidson could recall nothing specific.
Similarly, although Davidson testified that Bales had had accidents, which tied in with
safety, and an attitude problem, Respondent submitted nothing from Bales’ personnel files
regarding either alleged deficiency.
Finally, on the subject of the criteria Davidson used for selection, he testified at one point
that an “A” or “B” for attendance and safety were required; however, soon thereafter, he testified
that such grade was required for attendance, safety, on-time delivery, personal productivity, and
customer service. Shortly thereafter, Davidson directly contradicted this earlier testimony by
stating flat out that there were no areas in which an “A” or “B” were absolute requirements.43
Davidson testified that he made the decision that applicants for the portable plant driver
position would have to take driving tests in rear-discharge vehicles. Brett, DeLong, an
employee of Spurlino Ohio, administered them.

38 GC Exh. 2.
39 GC Exh. 13 at 1 & 4.
40 Tr. 726.
41 Tr. 729, 731.
42 GC Exh. 13 at 10.
43 Tr. 771–773.
JD–76–07
5
10
15
20
25
30
35
40
45
50
16
The role, if any, that these driving tests actually played in the selection process remains
an enigma. Davidson was vague on what the “test” consisted of and how DeLong rated the
applicants (no one failed). Davidson stated that DeLong made notes and showed them to him
but that no records of the driving tests were kept. He could not recall if the driving tests were
given before or after the performance reviews were done.
Davidson testified that he selected Kiefer, Mooney, Pinatello, and Thomerson in part as
a result of the driving tests, to the extent that they would not have been selected if they had
been unable to drive a rear-discharge truck. However, Mooney refused to take the test at all,
and Kiefer described it as “unpleasant,” because he encountered problems. Mooney was
present when Kiefer took the test and observed his having difficulties. On the other hand,
DeLong told Stevenson that he was “one of the better ones,”44 and neither Bales nor Eversole
were ever offered the test.
Interestingly, the next occasion when Kiefer drove a rear-discharge truck after his test
was on the first day he reported to the portable batch plant, June 8, 2006. An individual from
Respondent’s Ohio operations went through the truck controls with the four drivers, giving them
a “crash course” on site. That was the extent of their training in operating a rear-discharge
truck. By the end of the first day of work, they all were able to drive.
In sum, Davidson’s testimony on the evaluation, testing, and selection process for
portable plant drivers was a hopeless muddle, much of which driver-witnesses contradicted. I
therefore find it wholly unreliable.
During negotiations, Respondent never stated that drivers would be formally evaluated
or given driving tests, although Weissman said at a meeting in late April 2006 that work
performance and “driving skills” would be criteria for selecting portable plant drivers.
When Pinatello left the portable plant in approximately July, Davidson testified, he first
offered the vacant position to some of those who had already applied, in order of their
performance, with attendance and safety being the most heavily-weighted factors. He then
went on to ask newer employees.
Davidson did offer the position to Bales and Eversole, who both turned it down because
they did not want to be at the bottom of both call-in lists (Kentucky Avenue and portable plant).
He did not offer it to Stevenson. He ultimately selected Andrew Alexander. Since Respondent
did not employ Alexander at the time of the performance reviews, none exists for him.
Mooney and Kiefer, the two portable plant drivers who testified, both benefited financially
from being assigned to the portable plant, even though they were assigned from the bottom of
the list from Kentucky Avenue. During the time they were portable plant drivers, both also
performed non-Stadium work out of Kentucky Avenue. Mooney worked a total of 69 days at the
portable plant, and Kiefer during the period the portable plant was in operation spent about 60
percent of his time at the portable plant and the remainder on regular Kentucky Avenue
dispatches.

44 Tr. 588.
JD–76–07
5
10
15
20
25
30
35
40
45
50
17
C. Alternate Portable Plant Driver Position
Shortly after Alexander became a portable plant driver, Davidson, most likely in
conjunction with Spurlino, apparently made the decision to create the position of alternate or
back-up portable plant drivers (alternate drivers) when regular portable plant drivers were
unavailable or an additional driver was needed to deliver at the portable plant.45 Respondent
had purchased a total of six rear-discharge trucks, and about 10 percent of the time, more than
four trucks were needed at portable plant. Nothing about this position was posted, nor was the
Union ever notified that it would be created, either during negotiations or otherwise.
In about late July, Davidson approached certain employees and asked them verbally if
they were interested. He did not go through the applicants who had turned down the portable
plant position that became available when Pinatello left (including Bales and Eversole), because
he assumed they would not have changed their minds. However, he did not tell them that there
was a key difference in the treatment of the alternate driver’s position on his home plant’s call-
in-list vis-à-vis regular portable plant drivers. That is, Davidson considered the alternative driver
position to be a “temporary fill-in” position rather than a “reassignment,” and he therefore
determined that such drivers would keep their normal call-in list order at their home plant when
they were not dispatched to the portable plant, rather than go to the bottom. He did not offer the
position to Stevenson.
Carlos Quesada, a driver hired April 24, 2006, was given the position at Kentucky
Avenue. One driver from each of the other two facilities was also selected.
D. Statements Made During Negotiations
From February 12, 2006 to January 10, 2007, Respondent and the Union had about 13
bargaining sessions. Weissman was Respondent’s chief negotiator throughout. Green was the
Union’s chief negotiator at the first or so session, after which attorney Gath assumed the role.
Also on behalf of the Union, Jones was at all or most meetings, and employees Bales, Eversole,
and Stevenson (prior to his discharge) attended as members of the Union’s negotiating team
from the start of negotiations. Matney and Gaskin also attended for management.
It is undisputed that the Union raised the issue of Stadium work at the first meeting.
Green stated that employees sent there were entitled to a higher wage rate under the PLA, and
Weissman said she would check it out. This issue was later resolved when Respondent paid
those higher wage rates to unit employees dispatched to the Stadium.
At the April 25 or 26, 2006 session, Gath raised the matter of how employees were
being dispatched to the Stadium. Weissman responded that she understood they were being
sent the same way they were sent to any other customers. Gaskin confirmed this. Gath asked
if Respondent was going to put up a portable plant. Matney answered that it was likely and that
employees would be assigned there based on performance. Gath responded that they should
be assigned by seniority, as per the AGC. Weismann replied that the terms of the AGC did not
apply until employees were actually on site. After a caucus, Weissman told Gath that
management’s representatives had looked at both the AGC and PLA, and it was clear that they
applied when employees were at the Stadium site. However, she said, the PLA clearly stated

45 Matney testified that he had no role in the creation of this position and was “not sure” who
did. Tr. 137–138.
JD–76–07
5
10
15
20
25
30
35
40
45
50
18
that if a conflict existed between it and individual contracts between unions and companies at
the project, the PLA governed and, according to the PLA, no seniority was to be considered on
the project. She told Gath that she would let him know as soon as Respondent knew when the
portable plant would open.
By letter to Gath dated May 1, Weissman stated that a portable plant would be set up at
the Stadium in the “not too distant future” and that Respondent would post a solicitation for
drivers who wished to work there.46
At the May 11 meeting, Gath asked if the Company believed that the Union represented
employees at the portable plant. Weissman replied “yes,” because Respondent had signed the
PLA, which recognized that drivers belonged to the bargaining unit represented by the
Teamsters. She further said that the Union did not represent drivers at the portable plant with
regard to the contract proposals that were being discussed at negotiations and that the
Engineers represented batch men working at the portable plant (as opposed to those working at
Respondent’s three facilities). Gath asked how Respondent was going to send people to the
portable plant. She replied that Respondent was going to post a solicitation for employees to
express an interest in being assigned there but did not know when. Matney stated that it might
be in a couple of weeks, and Weissman said she would send a copy to the Union. Gath stated
that assignments should be in order of seniority, to which she responded that Respondent had
no an obligation to even assign any drivers from the bargaining unit to work there.
Respondent has refused to arbitrate a grievance the Union filed under the PLA regarding
how the Company assigned drivers to work at the Stadium, on the ground that the PLA does not
apply to the hiring of such drivers.

By letter dated May 12 to Gath, Weissman forwarded a copy of the notice put up that
morning, soliciting volunteers “who might wish to move from their existing plant to the batch
plant.”47
Gath responded by letter dated May 15,48 in which he posed several questions,
including: 1) identifying the criteria on which Respondent planned to rely in deciding who would
be sent to the Stadium; 2) whether an employee assigned to the portable plant would also be
making pickups and/or deliveries from other company locations; and 3) a description of how
Respondent intended to pay unit employees transferred to the portable plant. He stated that the
Union reserved the right to bargain over the transfers and work assignments of unit employees
to the Stadium, to the extent that such issues were not covered by the PLA.
By letter dated May 22, Weissman replied,49 saying that Respondent would make the
decision based on “skills, qualifications and past performance. Where all other factors are
equal, seniority shall govern.” Further, drivers transferred to the portable plant would be paid
the rate defined in the agreement covering the Stadium for all hours they worked at the portable
plant. Drivers dispatched from Kentucky Avenue to the Stadium would continue to be paid such
rates. Non-Stadium work would be paid at the regular $17.50 an hour.

46 GC Exh. 15.
47 GC Exh. 16.
48 GC Exh. 17.
49 GC Exh. 18.
JD–76–07
5
10
15
20
25
30
35
40
45
50
19
Other than the above, Respondent and the Union had no other communications
regarding how Respondent would staff the portable plant or the treatment of drivers selected to
work there.
The Union’s Information Request
The PLA contained a dues-checkoff clause, and the Union presented Respondent with
dues-checkoff cards from employees who were performing work at the Stadium. At a
bargaining session in March or April 2006, Gath told Weissman that such dues needed to be
taken out of employees’ paychecks once a month, for work they performed at the Stadium. The
Union received moneys for the first time at the end of July.
By letter to Weissman dated August 24,50 Gath expressed concern that Respondent was
not honoring the written dues checkoffs and the PLA. He requested, by September 6, monthly
payroll records for the period of May 2006 to present, reflecting an itemization of all deductions
from bargaining unit employees’ wages including, inter alia, union dues and when they were
remitted to the Union.
Weissman forwarded the request to Respondent’s administrative offices, since
Respondent uses a contracted payroll service. On September 5, she received the information,
and the following day left a voice mail for Gath, stating that as soon as she had an opportunity
to analyze the information she had collected, she would send it. On September 8, the Union
filed ULP charges on the matter. On or about September 22, she faxed to the Union documents
showing, by employee, amounts of union dues withheld and check numbers, along with a
recap.51 All the documents have the notation “Run Date: 9/05/2006” and a time.
The General Counsel does not contend that the response was defective in content; only
that it was untimely.
Stevenson’s Suspension and Termination
For bargaining unit employees, Respondent has no formal written disciplinary procedure
in place, no progressive discipline system, and no specific policies for written warnings or
suspensions. Respondent has terminated three other drivers: Berlin Everson for
misappropriating concrete and giving it to friends or relatives instead of to customers; Steve
Miller, for attendance problems; and Mark Sims, for making threats to drive his truck through the
Company’s building.
The sole basis for Stevenson’s suspension on August 26, 2006, and discharge on
February 22, 2007, was his conduct on August 25, 2006. He had no prior warnings
On about August 25, 2006, Respondent distributed with some employee paychecks,
including Stevenson’s, a packet of documents, with a cover letter from Matney, relating to how
Respondent was handling the deduction of union dues from their paychecks under the PLA.52
Included were copies of authorization cards employees had signed. Respondent erroneously

50 Jt. Exh. 7.
51 Jt. Exh. 8.
52 See GC Exh. 22, identical to what was distributed, with the exception that Social Security
Numbers (SSN’s) have been redacted.
JD–76–07
5
10
15
20
25
30
35
40
45
50
20
neglected to remove the SSN’s from them. When this was brought to Respondent’s attention, it
attempted to retrieve copies of such documents.
Stevenson admittedly became agitated when he saw the SSN’s, and he placed the
envelope in his truck. Shortly before he was to leave for another delivery, Batch Man Larry
Davis told him that he needed back the papers enclosed with the paycheck. Stevenson replied
that he had gotten rid of them in the dumpster (they were actually in his truck). Davis told him
not to lie and to return the papers. Stevenson repeated that he did not have them, and “I ain’t
[sic] giving nothing back.”53 He proceeded to his next job.
When Stevenson returned at about noon, Davis informed him by radio that Davidson
wanted to see him in the management office. Davis and Davidson were present when
Stevenson arrived, and Angie Johnson joined them.
In relating the subsequent conversation, Stevenson was not always chronological, his
statements about what was he said about union representation varied in specifics, and his
versions on direct-examination and cross-examination were not entirely consistent.
Nevertheless, on major points, his testimony did not differ significantly from Davidson’s account.
Where there were differences, I accept Davidson’s version, which substantially mirrored the
later written statements that Weissman had Davidson, Davis, and Johnson prepare.54
I find the following. Davidson asked for the papers and said that the Company really
needed them back because they contained SSN’s. Stevenson replied that that he had thrown
them in a customer’s dumpster because he was very upset. Davidson stated that if the
documents could not be located, “[W]e may have to take further action.”55 Stevenson then said
he needed to call his union representative, to find out if he had to give the papers back.56
Davidson continued to question him about their whereabouts. Stevenson finally took them from
his pocket and placed them on the table. At some point during the conversation, Davidson
asked if Stevenson was lying to him.
The following day, Gaskin left Stevenson the phone message that he was suspended
while the matter was under investigation.
Respondent’s witnesses gave marked conflicting accounts of the decision-making
process relating to Stevenson’s suspension.
Spurlino testified that on August 25, he had a number of conversations with
management representatives concerning the incident, although he could not recall with whom
he had the first. Throughout his testimony, he was quite vague about the specifics of the
conversations he had with other management on the subject. He initially testified that he was
not the sole decision-maker on Stevenson’s suspension and that it was collective decision
between him, Matney, Davidson, and Gaskin.57 Later, however, he averred that those involved

53 Tr. 630.
54 GC Exhs. 7–9.
55 Davidson at 741.
56 Ibid; Stevenson at Tr. 658.
57 Tr. 178–179.
JD–76–07
5
10
15
20
25
30
35
40
45
50
21
in the “consensus” decision were him, Weissman, Matney, and Davidson.58 Still later, after
once more testifying that the suspension was a collective decision, went on to say, “It is correct
as to the termination. I don’t recall the suspension.”59
Weissman testified that after Davidson reported to her on August 25 that Stevenson had
refused to return the documents, she had “a lot” of conversations with Spurlino, Matney, and
Davidson about what should be done and that she recommended he be suspended pending
further investigation. I note that Weissman, who generally testified quite smoothly and without
hesitation, equivocated to the point of evasiveness when I asked her who made the decision to
suspend Stevenson: “I do not know with certainty. My—my best understanding is that it was a
decision between Mr. Matney and Mr. Spurlino. Obviously, it was my recommendation, so I
would say, the three of us, I guess.”60
Matney and Davidson contradicted Spurlino’s and Weissman’s account that the
suspension resulted from a “joint” decision. Thus, Matney testified that he was not involved in
the decision to indefinitely suspend Stevenson and did not for certain who was. Davidson
testified that his only role in Stevenson’s suspension was conducting the interview with him, that
he furnished information on the interview but did not make a recommendation, and that Spurlino
made the final decision.
I credit Matney and Davidson and find that they did not play any part in the decision to
suspend Stevenson. I further credit Davidson’s testimony, and find that Spurlino made the final
decision, believing that to be the most logical conclusion in light of Spurlino’s ownership of the
Company, regular contact with Kentucky Avenue management, and active participation in
discussions on August 25. For whatever reasons, Spurlino and Weissman attempted to
minimize his role, and their lack of candor raises suspicions about the real reasons for the
suspension.
Weissman called Stevenson on September 5 and said that she wanted to interview him
about the incident, with a union representative present. He replied in the affirmative. Weissman
and Green subsequently arranged that she would have a telephonic interview with Stevenson at
Gath’s law offices on September 15, with attorney Lohman in attendance.
Weissman’s notes of the interview are contained in Respondent’s Exhibit 4. I have no
reason to doubt their accuracy and, crediting her testimony, find that they constitute a complete
record of what was said. She engaged in no further investigation. All of her subsequent
communications with the Union on the matter related to attempts to settle the grievance that the
Union filed over the suspension.
Stevenson was not terminated until February 22, 2007, over 5 months later. Weissman
testified that this long hiatus between indefinite suspension and termination resulted from efforts
she made to settle the above grievance. After Gath in early 2007 notified her that the Union
was not interested in Respondent’s (final) settlement offer, the decision was made to terminate
Stevenson. I note that Stevenson indirectly corroborated her by testifying that in about
December 2006 or January 2007, Gath related to him a settlement offer from Respondent. I
credit Weissman’s testimony that grievance settlement efforts were the reason for the delay.
Conversely, I do not accept Spurlino’s contrary explanation, that “We had difficulty completing

58 Tr. 188–189.
59 Tr. 205.
60 Tr. 954–955.
JD–76–07
5
10
15
20
25
30
35
40
45
50
22
the investigation and Ms. Weissman was . . . making attempts to complete that investigation and
had extraordinary difficulty in doing that.”61 This is yet another example of why I have found him
a generally unreliable witness.
Although Weissman testified that Spurlino made the decision to terminate Stevenson “in
consultation” with her and Matney, she conceded that she did not directly recommend that
Stevenson be discharged. In fact, she also testified that other management informed her that
Stevenson was going to be discharged—inconsistent with her having participated in making the
decision. It is clear, contrary to Spurlino’s claim of joint or consensus decision-making, that, as
with the suspension, he had the final word on the termination.
Weissman prepared Stevenson’s termination letter, dated February 22, 2007, and
signed by Matney.62 Consistent with the Company’s normal practice, it listed no reasons.
Weissman testified that this is done for the benefit of discharged employees.
According to Spurlino, Stevenson was terminated for the following reasons: dishonesty,
attempted theft of personal confidential information, and intentionally misleading other
employees and management. No nonbargaining unit employee has been disciplined for these
reasons.
Warehouse Project Slab Pours
Past Practices
Davidson testified that Respondent prior to June 11, 2007, used non-unit employees
based in Indianapolis, drivers from the Spurlino Ohio, and leased drivers, to perform unit work,
when needed.
In this regard, both the General Counsel and the Union specifically subpoenaed records
from Respondent that would document any use of leased trucks or truck drivers since
November 2005, when Respondent began its operations in Indiana.63 Respondent did provide
documentation showing the leases in which it entered in June 2007. However, Respondent
provided nothing showing that it ever before entered into contracts for the leasing of trucks and
drivers. Nor did Respondent make a motion to revoke any portion of either subpoena.
As the Board stated in The Smithfield Packing Co., 344 NLRB 1, 8 (2004), “It is well
established that a respondent that has refused to produce subpoenaed materials that are the
best evidence of a fact may not introduce secondary evidence of matters provable by those
materials,” citing Bannon Mills, 146 NLRB 611 (1964) and Avondale Industries, 329 NLRB 1064,
1244–1245 (1999).
Respondent’s counsel represented that Respondent contends that no such documents
are in existence. This averment cannot be automatically accepted at face value without further
evaluation. To do so would be to allow a party to avoid subpoena compliance by merely stating

61 Tr. 193.
62 GC Exh. 23.
63 See GC Exh. 29, Attachment at Para. 13; Charging Party Exh. 1, Attachment A at Para.
1.
JD–76–07
5
10
15
20
25
30
35
40
45
50
23
that it has no documents that are responsive to the request and thereby defeat the whole
purpose of the subpoena process.
I find totally incredible that, in this day and age of extensive record-keeping
requirements, particularly in the transportation industry, that had Respondent engaged in
leasing arrangements with other companies prior to June 2007, nothing in its files would contain
any kind of documentation thereof. What makes this more suspect is that Spurlino maintains
operations in a number of states and is not new to the business.
Distinguishable are situations in which the subpoenaed documents are not in the nature
of formal business records, and the representation that they have been inadvertently lost or
destroyed may be plausible. See, e.g., BP Amoco Chemical-Chocolate Bayou, 351 NLRB. No.
39 (2007) (employer claimed that it had shredded worksheets from various committee
meetings); CPS Chemical Co., 324 NLRB 1018, 1019 (1997) (union claimed that it could not
locate a list of employees who had attended a union meeting); Champ Corp., 291 NLRB 803,
803–804 (1988), enfd. 932 F.2d 688 (9th Cir. 1990) (union claimed it could not locate bargaining
notes taken during negotiations).
Respondent has either failed to maintain normal and customary business records, for
whatever reason, or has chosen not to provide them. Either way, I will not reward Respondent
for their non-production. I thus conclude that either Davidson’s testimony was inaccurate, and
no such subcontracting took place, or his testimony constituted secondary evidence that should
be excluded because the documents that were subpoenaed would have been the best evidence
of any such subcontracting. Therefore, I do not find as a fact that Respondent engaged in
leasing trucks or drivers prior to June 2007.
Davidson also testified that Spurlino Ohio employees have occasionally been sent to the
Indiana facilities and made concrete deliveries when needed. This was mostly shortly after
Respondent took over the operation in late 2005, and they primarily performed plant
maintenance. In any event, Respondent provided no documentation of such, and I would
expect Respondent to have maintained payroll or other internal records of some kind showing
that drivers from one state were assigned to do work in another. Indeed, Weissman testified
that she believed that Respondent was billed by Spurlino Ohio when the latter’s employees
were sent to perform work at the Indiana facilities. I therefore draw an adverse inference
against Respondent for failing to provide any documentation and do not find as a fact that
Spurlino Ohio drivers previously were assigned to drive out of the Indiana facilities, at least at
any time following the Union’s certification in January 2006.
On the contrary, I credit Gath’s unrebutted testimony, and find, that in one of his
conversations with Weissman between June 8 and 11, Gath asked whether Respondent had
any practice of using leased drivers, and she replied “no.”64 As an admission against interest,
her statement comes under the exception to the hearsay rule. See Federal Rule 804(b)(3), 28
U.S.C.A. 804(b)(3).
Finally, Davidson testified without controversion that, prior to June 2007, Respondent
occasionally used mechanics and maintenance employees at its Indiana facilities to deliver
concrete when unit employees were not readily available. Regardless of the scope of the
General Counsel’s and Union’s subpoenas, this is not the type of situation where I would

64 Tr. 1166.
JD–76–07
5
10
15
20
25
30
35
40
45
50
24
necessarily expect Respondent to have had documentation. Accordingly, I do not draw an
adverse inference from Respondent’s not providing such, and I credit Davidson’s unrebutted
testimony thereon.
The AirWest Distribution Warehouse Project
In September 2006, Lithko Contracting (Lithko) solicited from Respondent a bid to
provide all of the ready-mix cement for the approximately 725,000-square-foot Warehouse
Project, Plainfield, Indiana (the Warehouse Project), for Arco Construction. This bid entailed
supplying concrete for the entire building, including footers, foundations, interior slabs, and
exterior paving, as well as surrounding site work. Of the approximately 16,000 cubic yards of
concrete total, about 11,000 cubic yards were for the interior slabs, to be installed continuously
over a 3-week or so period. Respondent’s contact person was Scott Noel, then Respondent’s
sales manager. He was not called as a witness.
Respondent bid on the project on September 25, 2006, and was verbally awarded the
job on about October 9, 2006. At that time, the anticipated start date was around the end of
October. Primarily because of the condition of the soil on the site, Lithko repeatedly postponed
Respondent’s start date. The site owner eventually decided that it would be better to wait until
the spring and weather improved. In the concrete construction industry, winter is a slow time of
year, whereas the spring is busier.
After September 25, Respondent and Lithko negotiated modifications to their contract in
late October 2006 and in mid-January and early April 2007.65
In approximately February 2007, Respondent held a “job fair” at an Indianapolis hotel, at
which it took applications for drivers and other positions. Green testified without controversion,
and I find, that he went to the job fair, filled out a driver application, and was told, inter alia, by
Matney that Respondent was “going to be getting a lot of business and he was going to hire
drivers in town. . . .”66
Respondent first did work at the site on April 5, 2007.67 These were small pours.
However, it did not commence major work until June 11, when it started making deliveries for
the interior slabs. Respondent’s alleged ULP’s at the Warehouse Project relate solely to the
slab work it performed there, from June 11 – 28.
Sometime in March, Davidson and Noel participated in a meeting with representatives of
Lithko and Arco, concerning general plans.
On May 11, Ahlquist, along with other Lithko representatives, attended a meeting with
Davidson and Noel at Lithko’s offices. I credit Ahlquist’s account of what was said there, as
follows. Lithko and Respondent discussed slab pour logistics, including locations, production
rates, and anticipated pour dates. Lithko stated that it anticipated starting the slab pours within
2 weeks but did not have a date certain. Lithko requested 150 cubic yards per hour.
Respondent replied that they could do it. The parties agreed to a start time (time of delivery to
the Warehouse Project site) of 1 a.m., with 7 or 8 hours of continuous truck delivery.68

65 See GC Exh. 30.
66 Tr. 1201.
67 See GC Exh. 37, Lithko’s Concrete Log.
68 Such a start time is common. The general contractor may request it to avoid interference
Continued
JD–76–07
5
10
15
20
25
30
35
40
45
50
25
Davidson testified that he and Noel attended a meeting in approximately the third week
of May, in a restaurant a few blocks from Lithko’s offices. This was the final meeting prior to
June 11. According to Davidson, he told Lithko that unless Lithko agreed to certain revisions
that Respondent proposed in the pour schedule, including weekend deliveries, Respondent
could not do the slab work. Further, according to Davidson, Lithko wanted a start time of
between 2 and 4 a.m., and Respondent proposed starting earlier. Davidson also testified that
he and Noel left the meeting with the understanding that Lithko would get back to them, to let
them know if Lithko would agree to make the changes that Respondent requested. I do not
credit this testimony to the extent that it was contrary to Ahlquist’s testimony reflecting lack of
disagreement between the parties at the May 11 meeting.
On June 6, Lithko notified Respondent that the slab pouring would begin on June 11.69
Soliciting Unit Employees to Volunteer
I credit Davidson’s unrebutted testimony that prior to the Warehouse Project,
Respondent sometimes asked for volunteers for Saturday or early morning deliveries, including
most of the early morning pours at the Stadium Project (before, during, and after the operation
of the portable plant). It is only logical to assume that some employees would either be
unavailable or uninterested in working hours outside the normal schedule.
Davidson testified that dispatchers spoke directly to the drivers concerning volunteering
for the Warehouse Project. However, since no dispatchers or drivers testified on the subject,
there were no first-hand witnesses. Nonetheless, it is undisputed that Respondent did engage
in such conduct; indeed, the substance of the General Counsel’s allegation of unilateral change
in dispatch procedures is that Respondent did not follow the normal call-in system but rather
asked drivers to volunteer in advance for the work. In these circumstances, and in the absence
of objection from any counsel, I will accept secondary evidence on the subject.
I credit Davidson’s unrebutted testimony that the dispatchers asked unit drivers at all
three facilities to volunteer, both for the first day of the pour (June 11) and for the remainder of
that week. Some drivers said they were available to report at 11 p.m. on June 10 and for the
rest of the days that week; others were available only on some days; and still others did not
wish to be scheduled at all. General Counsel’s Exhibit 31, prepared by the dispatch office, is a
list of volunteers during the period from June 18 – July 7. Many of its notations are unclear,
since the preparer(s) did not testify, but the document does reflect Respondent’s use of a
volunteer system. Nothing documentary was furnished for the week of June 11, but I will
assume that a similar record of driver responses was used at the time.
Drivers who volunteered were called in order of the call-in sheet, with Kentucky Avenue
first, Noblesville second, and Linden third. After all of them were called, Respondent used the
subcontractors when needed.
Respondent’s Use of Nonunit Employees
After Davidson and Matney were notified on June 6 that the slab work was to start the
following Monday, the former called the dispatcher at Spurlino Ohio but was told they were to
_________________________
with other trade traffic on the jobsite or because it fits in with other scheduling needs.
69 See GC Exh. 35, pour schedule that Lithko provided to Respondent, dated June 5, 2007.
JD–76–07
5
10
15
20
25
30
35
40
45
50
26
busy and unable to assist. Respondent then made the decision to use subcontracted trucks
and drivers from McIntire and Buster’s Cement Products (Buster’s). Davidson called them on
June 7 and asked if they had trucks available on Monday. He mentioned the possibility that
Respondent might need trucks on and off for the next several weeks.
The following day, both companies notified Davidson that they could provide trucks on
Monday. Davidson made identical arrangements with them: they would be paid $100/hour for
their drivers to load Respondent’s cement and deliver it to the Warehouse Project.
Davidson decided how many trucks would be needed from the subs during the course of
the slab deliveries. McIntire furnished four trucks on June 10, two on June 12, and two on June
14; Buster’s furnished six on June 10, two on June 12, and two on June 20.70 They were
dispatched solely to the Warehouse Project.
The night pours took about 6 or 7 hours. Leased drivers and unit employees were re-
loaded to return to the Warehouse Project in the normal order of first-back, first-out again,
unless Respondent had orders from other customers, to which only unit employees were
dispatched. Leased drivers were sent home if no Warehouse Project work was available.
Davidson also intermittently utilized drivers from Spurlino Ohio, as well as two or three
nonunit employees at the Indiana facilities, to make such deliveries. They were used in lieu of
leased drivers, again, after unit drivers who had volunteered were first assigned.
Respondent’s Contacts with the Union
The first notice the Union had of Respondent’s intention to use subcontracted trucks was
on June 7, when Jones returned Weissman’s phone message from the previous day. The
following facts are based on Weissman’s unrebutted testimony, which I credit. She explained
that Respondent was getting ready to pour concrete at the Warehouse Project, starting on
Monday, June 11 at 12:01 a.m. She stated that this job was one that had been bid on and
awarded in October or November, but the scheduled start date had been repeatedly postponed.
Because of the time of year and number of (unit) drivers that Respondent had, Respondent
needed additional drivers but did not have adequate time to hire any. Therefore, Respondent
was going to contract with someone (Buster’s) from whom it had previously leased trucks and
drivers.
Jones asked a number of questions, including whether all unit drivers would work that
day and whether the call-in procedure would be changed. Weissman replied that the drivers
would have the option of going out on the job but would not be required to work so early. She
also stated that the work would start at 12:01 a.m. and go until 6 or 7 a.m, and then
Respondent’s drivers would have to service regular customers, normally starting at between 5
and 7 a.m. Thus, the drivers who volunteered for the slab pour would also work the day shift.
Moreover, the first drivers to stop working would be the leased drivers.
Jones asked about drivers at Respondent’s plants other than Kentucky Avenue. She
replied that Respondent would post for volunteers at all three facilities. He said that would be
good. He told her that the Union dealt with this type of situation all the time, and he would think
about it. She suggested that she document Respondent’s proposals, incorporating some of his

70See GC Exhs. 32 & 33, invoices. The drivers reported to Kentucky Avenue prior to
midnight, in order to make the delivery at the Warehouse Project at 1 a.m. the following day.
JD–76–07
5
10
15
20
25
30
35
40
45
50
27
suggestions, and he replied that would be helpful. She did so.71 During their conversation,
Jones did not agree to anything.
Gath responded to Weissman by a letter dated and faxed June 8.72 In sum, he stated
that Jones had not agreed to the proposed assignment of work to lease drivers or the
scheduling arrangements for unit employees, that the Union objected to the use of non-
bargaining unit employees, and that unit employees should be referred to the job in accordance
with Respondent’s normal dispatch procedures.
Weissman called Gath that afternoon. Their testimony about the conversation was
substantially similar. Gath again objected to Respondent’s proposed use of leased drivers and
system for “referral” of drivers to the job, as unilateral changes in the status quo. Weissman
replied that Respondent did not believe it had an obligation to bargain but was simply notifying
the Union and was willing to listen to their ideas. Further, Respondent would proceed with its
proposals on Monday, because otherwise all of the unit drivers would not be able to work. She
suggested a meeting, and the conversation ended with the an agreement to try to arrange a
time and place for such, over the weekend or on Monday morning, depending on when union
representatives could be present.
Over the weekend, Weissman and Gath had e-mail correspondence concerning the
logistics of the meeting.73 Through a telephone call on June 10 at about 4 p.m., they ultimately
agreed that such a meeting would be held at Kentucky Avenue on Monday, June 11 at 9 a.m.
Gath told Weissman that he would attend. Weissman at no time expressly stated that she
would be present, although certain statements she made by phone and e-mail implied that she
would personally attend. Regardless, I do not draw any negative inferences against
Respondent by virtue of the fact that she did not. Gath made it clear in his communications with
her that the scheduled meeting was only for the purpose of conferring, not bargaining per se.
Gath testified without controversion, and I find, that in one of his telephone
conversations with Weissman, he asked if Respondent was claiming some kind of “dire financial
emergency” for having to use leased drivers, and she replied, “No.”74 See also Paragraph 4 of
Gath’s e-mail to Weissman of June 9 at 2:34 p.m., in which he stated, “Spurlino has never
asserted that(sic) existence of such a financial emergency in any telephone conversation or
written communication with the Union.” Respondent has provided no evidence that it ever
raised such a justification.
Davidson was the only management representative to meet with Gath, Green, and
Jones on June 11 at 9 a.m., after McIntire and Buster’s drivers had already started delivering
Respondent’s cement to the Warehouse Project. Eversole later joined the meeting.
Davidson’s, Gath’s, and Green’s versions of what was said were similar, and I find the following.
Consistent with what he had told Weissman, Gath made it clear that the purpose of the
meeting was “informational” and that the Union was there only to hear Davidson out, not to

71 GC Exh. 25, memorandum from Weissman to Jones dated June 7.
72 GC Exh. 26.
73 See GC Exh. 27. In one of the e-mails, Gath made a request for certain information
regarding the slab pour job, which Weissman answered in e-mail form (GC Exh. 28). The
General Counsel has not alleged that the Company’s response violated the Act, and I need not
go into further details thereon.
74 Tr. 1180.
JD–76–07
5
10
15
20
25
30
35
40
45
50
28
engage in any bargaining. No proposals were exchanged. Davidson set out Respondent’s
contentions for why it needed to use leased drivers and stated that without them, Respondent
would have been unable to do the job. Gath voiced objections to the way the Union had been
notified of the subcontracting and contended it violated the law. Davidson was asked about
Respondent’s plans for slab deliveries and how dispatching was to be handled. Green asked
how the work was being assigned to unit employees, to which Davidson replied there was a
volunteers’ list. Davidson could not recall whether Gath asked for a copy of the list, and I credit
Gath’s and Green’s testimony that he did so but was not provided it. The meeting ended with
Green telling Davidson he would get back to him about whether the Union would agree to the
changes. Green later called Davidson and said no.
Analysis and Conclusions
Alleged violations of Section 8(a)(5)
Unilateral Changes
An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally makes
substantial changes on subjects of mandatory bargaining; to wit, employees’ wages, hours, or
other terms and conditions of employment, without first affording notice and a meaningful
opportunity to bargain to the union representing the employees. NLRB v. Katz, 369 U.S. 736
(1962); United Cerebral Palsy of New York City, 347 NLRB No. 60 slip op. 6 (2006).
The Stadium Project
Creation of Portable Plant Driver and Alternate Driver Positions
Prior to the Stadium Project, Respondent did not have the positions of portable plant
driver or alternate driver. It is undisputed that Respondent never gave the Union notice the
latter position would be created or the opportunity to bargain over either of them.
Respondent’s defense is that the portable plant drivers were governed exclusively by the
terms of the PLA, which gave Respondent the unfettered discretion to hire whomever it chose to
be such drivers, to decide how they should be selected, and to treat them however it saw fit.
Respondent, however, has refused to arbitrate a grievance the Union filed under the PLA
regarding the way it assigned drivers to the Stadium, thus foreclosing a neutral third party from
analyzing the validity of its interpretation of the PLA.
In any event, Respondent’s argument ignores the critical fact that unit employees who
performed work at the portable plant never lost their status as unit employees and were never
assigned exclusively to work at the Stadium. Indeed, there were days that the portable plant
was not in operation, and the portable plant drivers were assigned to other jobs from the regular
call-in list at Kentucky Avenue, albeit they were at the bottom of the list instead of in their normal
order. On other days, nonportable plant drivers were dispatched to the batch plant to fill in for
regular portable plant drivers or because of the volume of work. The alternate drivers were
dispatched to the batch plant only as needed and lost even less of their status as unit
employees working at one of three regular plants.
I note also that the portable plant and alternate drivers remained under the same
dispatchers and supervisors, and that their performance at the Stadium clearly had the potential
to impact on their overall employment. Further, the Stadium portable plant was never
contemplated as being permanent, and it was always management’s expectation that the four
JD–76–07
5
10
15
20
25
30
35
40
45
50
29
portable plant drivers and three alternate drivers would return to their regular assignments.
Finally, that unit employees were assigned to the Stadium on a regular basis also had an impact
on the remaining unit employees.
The portable plant assignments clearly were new positions rather than merely transfers
to another facility since they entailed different rates of pay and different benefits. Even
accepting Respondent’s characterization of the portable plant driver as a “transfer,” rather than
a new position, Respondent still had the obligation to notify the Union and afford it the
opportunity to bargain, because the transfer of a unit employee is a mandatory subject of
bargaining. United Cerebral Palsy of New York City, above (elimination of seniority as a
consideration when selecting employees for involuntary transfers); Industrial Lechera de Puerto
Rico, (Indulac, Inc.), 344 NLRB 1075 (2005) (transfer from one shift to another).
Based on the above, I conclude that the creations of the positions of portable plant and
alternate drivers, which overlapped the drivers’ functions at their home plants, did impact on the
drivers’ wages, hours, or other terms and conditions of employment as unit employees and
ergo constituted mandatory subjects of bargaining.
Therefore, I conclude that Respondent violated Section 8(a)(5) and (1) by creating the
positions of portable plant driver and alternate driver without affording the Union notice of the
latter or an opportunity to bargain over either.
Implementation of a New Evaluation System
It is undisputed that Respondent did not utilize any kind of formal evaluation system or
testing procedure prior to the Stadium Project.
Since management’s use of these rating devices obviously had the potential for affecting
unit employees at their permanent home plants and apart from the matter of temporary
assignment to the Stadium, I conclude that they were mandatory subjects of bargaining.75 I
note that the ratings were retained in the Company’s records after the portable plant was shut
down. Respondent thus had an obligation to provide the Union notice and an opportunity to
bargain before it implemented a new evaluation system, which included driving tests. See
Bridon Cordage, Inc., 329 NLRB 258 (1999); Safeway Stores, 270 NLRB 193 (1984).
Weissman’s statement at negotiations that “driving criteria” would be used in selection
did not amount to notice that driving tests would be given, and her stating that selection would
be based on performance did not equate to notice that formal evaluations would be prepared on
applicants.
Thus, I conclude that Respondent violated Section 8(a)(5) and (1) by implementing a
new evaluation system, including implementation of a driving test, without affording the Union
notice and an opportunity to bargain.

75 Inasmuch as the evaluations and tests were imposed on existing employees who had
applied for new positions, rather than applicants for hire, Respondent cannot rely on cases
holding that administering drug and alcohol tests for applicants is not a mandatory subject of
bargaining. See, e.g., Finch, Pruyr & Co., 349 NLRB No. 28 (2007); Star Tribune, 295 NLRB
543 (1989).
JD–76–07
5
10
15
20
25
30
35
40
45
50
30
Bypassing the Union
The General Counsel further alleges that Davidson bypassed the Union and engaged in
direct dealing with employees when he offered drivers alternative portable plant driver positions
in July 2007.
The obligation to bargain collectively requires than an employer deal exclusively with the
collective-bargaining representative and not directly with the employees it represents. Medo
Photo Supply Co. v. NLRB, 321 U.S 678, 683 (1944); Georgia Power Co., 342 NRB 192 at 192
(2004).
Here, Davidson did not solicit drivers’ input on the terms and conditions of employment
of alternative portable plant drivers, or otherwise engage in any kind of “bargaining” with them.
Instead, he conveyed to them as a fait accompli a predetermined Company decision that there
would be such a position and what it would entail. This did not amount to unlawful “bypassing”
of the Union and direct dealing with employees. See Friendly Ford, 343 NLRB 1058 (2004);
Huttig Sash and Door, 154 NLRB 811, 817 (1965); contrast, United Cerebral Palsy of New York
City, 347 NLRB No. 60 (2006), in which the employer required represented employees to
affirmatively agree to future unilateral changes. I therefore recommend that this allegation be
dismissed.
The Warehouse Project
Subcontracting Work
Subcontracting of bargaining unit work that does not constitute a change in the scope,
nature or direction of the enterprise but only substitution of one group of workers for another to
perform the same work is clearly a mandatory subject of bargaining. Hospital Espanol Auixilio
Mutuo de Puerto Rico, 342 NLRB 458, 459 (2004); Overnite Transportation Co., 330 NLRB
1275, 1276 (2000); Torrington Industries, 307 NLRB 809 (1997). Unless an employer can
demonstrate “compelling economic reasons,” it violates Section 8(a)(5) by subcontracting unit
work that constitutes a mandatory subject of bargaining. Hospital Espanol, supra at 458.
Since Respondent did not establish the existence of any kind of past practice of using
subcontractors or Spurlino Ohio employees to perform unit work, I conclude that its doing so for
the Warehouse Project slab pours constituted a change in its operations.
Respondent has never contended the existence of financial emergency or shown that
the use of subcontractors or Spurlino Ohio employees was based on compelling economic
reasons. In any event, Respondent would be hard pressed to make such an argument when it
knew for months (as far back as October 2006) that it would at some point perform major
concrete slab work at the Warehouse Project yet waited until only a few days before the work
started to even notify the Union.
It is undisputed that Respondent never offered to bargain over the use of subcontractors;
rather, Weissman and Davidson merely answered questions about the subcontracting and how
unit employees would be dispatched vis-à-vis leased drivers. The June 11 meeting between
Davidson and union representatives was seen as “informational” in nature by both parties and,
in any event, took place after the subcontracting had already started.
JD–76–07
5
10
15
20
25
30
35
40
45
50
31
Respondent has emphasized that the subcontracted drivers only supplemented unit
employees, that all unit employees who volunteered for the slab pour work received it with
priority over nonunit drivers, and that no unit employees suffered lost work as a result.
Respondent’s arguments ignore the fact that both existing and potential unit employees
might have been adversely affected by the subcontracting of unit work. First, unit employees
might otherwise have been given overtime pay to perform the work that was subcontracted.
Second, in the absence of subcontracting, Respondent might have hired additional unit
employees, resulting in jobs for them and benefits for the Union and current unit employees in
having an expanded unit. A Board majority in Overnite Transportation Co., supra at 1776,
clearly recognized the possible harm of subcontracting even when no unit employees have lost
regular work:
At issue here is the decision to deal with an increase in what was indisputably bargaining
unit work by contracting work to outside subcontractors rather than assigning it to unit
employees. We think it plain that the bargaining unit is adversely affected whenever
bargaining unit work is given away to non-unit employees, regardless of whether the
work would otherwise have been performed by employees already in the unit or by new
employees who would have been hired into the unit. In any event, it is not clear in this
case that respondent’s unit employees did not, themselves, lose work opportunities.
The Board went on to discuss Acme Die Casting, 315 NLRB 202, 207 (1994), Therein, the
Board rejected an employer’s argument that no violation should be found because unit
employees had not lost any hours, instead concluding that such employees might have lost the
opportunity to be paid overtime for performing the additional work.
Therefore, I conclude that Respondent violated Section 8(a)(5) and (1) by failing to
afford the Union notice and an opportunity to bargain over the use of subcontractors and
Spurlino Ohio employees for the Warehouse Project slab pours, bargaining unit work.
Requesting Volunteers
Respondent, prior to June 2007, did ask drivers to volunteer for Saturday and early
morning work; accordingly, its seeking of volunteers for the Warehouse Project slab pours that
were to be delivered at 1 a.m. each morning was not a departure from past practice. It follows
that such conduct did not constitute a change in working conditions that triggered an obligation
to provide the Union with notice and an opportunity to bargain.
As an aside, I cannot see how Respondent’s checking with drivers to see if they wanted
to work early morning hours—which some might have found onerous and undesirable—
amounted to any kind of failure to honor the usual call-in list procedures that were in place.
Drivers who volunteered were sent out in the normal call-in list order to the Warehouse Project,
and those who did not volunteer were sent out on other jobs as per regular dispatch order.
Additionally, drivers are not required to be available for dispatch at all times but have the option
to remove themselves from consideration for reasons such as taking sick leave or vacation.
Determining ahead of time which drivers wanted the assignments was both reasonable and
efficient from the standpoint of good business and common sense.
Accordingly, I recommend that this allegation be dismissed.
JD–76–07
5
10
15
20
25
30
35
40
45
50
32
Response to Information Request
An employer must supply information requested by a collective-bargaining
representative that is relevant and necessary to the latter’s performance of its responsibilities to
the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956).
The law is well settled that an employer’s remittance of union dues deducted from
employee paychecks is a mandatory subject of bargaining. See, e.g., Do Group systems, Inc.,
347 NLRB No. 44 (2007); Victor Specialty Packaging, Inc., 331 NLRB No. 139 (2000); Metro
Enterprises, 331 NLRB No. 112 (2000). I conclude, therefore, that the information requested by
the Union pertaining to such was presumptively relevant. Respondent has never claimed
otherwise. Indeed, after receiving the request, Weissman responded that she would supply it to
the Union as soon as she had the opportunity to review and compile the relevant records.
The General Counsel alleges that Respondent did not furnish the information in a timely
fashion and therefore violated Section 8(a)(5) and (1). See Beverly California Corp., 326 NLRB
153, 157 (1991). Interstate Food Processing, 283 NLRB 303, 306 (1987).
The fact that Respondent furnished the information in slightly under a month does not
rule out a conclusion that its conduct was untimely, since a union is entitled to relevant
information at the time of its request. Woodland Clinic, 331 NLRB 735, 737 (2000) (7-week
delay unlawful); Pennco, Inc., 212 NLRB 677, 679 (1974) (6-week delay a violation). The
standard is not the length of time alone. Rather, in evaluating whether a response was
untimely, the Board looks at the totality of circumstances, including the complexity and extent of
the information sought, its availability, and the difficulty in retrieving it. Alleghany Power, 339
NLRB 585, 587 (2003); Samaritan Medical Center, 319 NLRB 392, 398 (1995). The ultimate
determination is whether the employer made a good faith effort to respond to the request “as
promptly as circumstances allow.” Alleghany Power, ibid; Good Life Beverage Co., 312 NLRB
1060, 1062 fn. 9 (1993).
I conclude that Respondent here did not satisfy this obligation. The documents provided
to the Union on September 22, 2006, nearly 1 month after the Union’s request of August 24,
were on their face generated on September 5 and simply showed union dues that Respondent
had withheld per unit employee. Even assuming Respondent required almost 2 weeks to
compile the data, I fail to see why Weissman would have needed another 2-1/2 weeks for
“review” before transmitting the information. I deem noteworthy the fact that Respondent did not
furnish the information until after the Union had filed ULP charges on the matter. See Pennco,
Inc. supra at 678, in which the Board mentioned this as a consideration in finding information
was untimely furnished. I also note that during the period in question, the parties were still in
the process of negotiating an initial collective-bargaining agreement.
Accordingly, I conclude that Respondent violated Section 8(a)(5) and (1) by not timely
furnishing the Union with information that was relevant and necessary to the Union’s
performance of its collective-bargaining duties.
Discrimination against Bales, Eversole, and Stevenson
The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie showing sufficient to support an
inference that the employee’s protected conduct motivated an employer’s adverse action. The
JD–76–07
5
10
15
20
25
30
35
40
45
50
33
General Counsel must show, either by direct or circumstantial evidence, that the employee
engaged in protected conduct, the employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took action because of this animus.
Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. The burden
of persuasion then shifts to the employer to show that it would have taken the same adverse
action even in absence of such activity. NLRB v. Transportation Corp., 462 U.S. 393, 399−403
(1983) Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Serrano Painting, 332 NLRB
1363, 1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993). To meet this burden, “an
employer cannot simply present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have taken place even in the
absence of the protected conduct.” Serrano Painting, supra at 1366, citing Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984).
At the time the first alleged discrimination occurred (in February 2006), Respondent had
knowledge that Bales, Eversole, and Stevenson had engaged in union activity, because they
were the Union’s observers at the election on January 13 and present on the Union’s behalf at
the first negotiations session on about February 12. The first two elements of Wright Line are
therefore established.
Animus is demonstrated by Matney’s numerous statements to various employees
between the time the petition was filed and the time of the election, and what he stated to Cox
and Stevenson after the election.
I now turn to the element of action. First is the allegation that Respondent loaded
around Bales, Eversole, and Stevenson in Stadium assignments, in the months prior to the
operation of the portable batch plant. General Counsel’s Exhibit 19 reflects that for the period
from February 16 – March 24, 2006, Mooney, Kiefer, and Cox were given the most assignments
to the Stadium. Bales, one of the alleged discriminatees was number four in assignments.
General Counsel’s Exhibit 4 shows that from May 1 through June 9, Mooney worked the most
hours at the Stadium, followed by Eversole, Kiefer, Bales, and Stevenson. On the call-in list,
Eversole was first, with Stevenson and Bales fourth and fifth, respectively (and ahead of Kiefer).
Respondent did not select Bales, Eversole, and Stevenson to be portable batch plant
drivers or alternate drivers. Similarly, Respondent indefinitely suspended Stevenson on August
26, 2006, and terminated him on about February 22, 2007.
Accordingly, I conclude that the General Counsel has established a prima facie case of
unlawful discrimination with regard to bypassing Bales, Eversole, and Stevenson for
assignments to the Stadium prior to the portable batch plant, not selecting them for portable
batch plant, and also in suspending and terminating Stevenson.
Bypassing Bales, Eversole, and Stevenson
Respondent gave priority in Stadium dispatches to Mooney, Kiefer, and Cox because
they were driving new trucks and Respondent wanted to make a good impression at a high-
profile job. Both Bales and Eversole testified that only Mooney, Cox, and Kiefer were initially
dispatched to the Stadium around them. I note Eversole’s testimony that after the initial period
of Stadium dispatches, Bales was the fourth driver to be loaded around him. Since Bales was
also a known union adherent and is also an alleged discriminatee, any such bypassing of
JD–76–07
5
10
15
20
25
30
35
40
45
50
34
Eversole in Bales’ favor cannot be attributed to union animus. The documents of record do not
establish a clear pattern of using drivers other than Mooney, Kiefer, and Cox ahead of the
alleged discriminatees.
I therefore conclude that Respondent has rebutted the presumption that Bales, Eversole,
and Stevenson were bypassed for assignments to the Stadium in the period before the portable
plant began operations because of their union activities, and recommend dismissal of this
allegation.
Nonselection of Bales, Eversole, and Stevenson for
Portable Plant/Alternate Driver Positions
Respondent’s problem in rebutting the General Counsel’s prima facie case is that
Davidson’s testimony about why they were not selected was laced with inconsistencies,
contradicted by driver testimony, and unsupported by any underlying documents or even
specifics. Thus, Davidson did not offer a well-based, logical explanation of why Eversole
(number one on the call-in list), Stevenson (number four), and Bales (number five) were
bypassed in favor of new drivers Pinatello and Thomerson. Indeed, he did not present a
cohesive account of how he rated any drivers or the system he used to grade them. I will not
reiterate here all of the numerous defects in his testimony but will only highlight the most glaring.
First, Davidson recited no specific reasons for not selecting Eversole and furnished no
details or supporting documentation to back up his testimony that Stevenson had a “horrible”
record keeping up his truck and attendance problems and that Bales had had accidents that
allegedly impacted on how he was rated on safety. Interestingly enough, at one point, Davidson
at one point did concede that he considered Eversole and Bales “qualified” but not as the “best
qualified.”
Second, he never offered an explanation of how he determined that new drivers
Pinatello and Thomerson were the “best qualified” and had the experience he claimed was
important.
Third, he gave conflicting accounts of how he graded applicants and what criteria were
the most important.
Fourth, his testimony that the results of the driving test played a role in the selection of
the four successful applicants was contradicted by two of them. Mooney refused to take the
test, and Kiefer, by his own testimony, did poorly. Moreover, Bales and Eversole were not even
offered the test, and Stevenson performed well.
Finally, Davidson testified that the only documents he could recall reviewing were job
applications and attendance records (none of which were offered as evidence). He did not
interview the applicants themselves, claimed he spoke “casually” to the applicants who were
selected yet could not recall any by name, and could not recall if he talked to any dispatchers.
That Davidson’s whole system of ratings may have been subjective and unquantifiable
cannot serve to obviate the conclusion that Respondent has failed to rebut the General
Counsel’s prima facie case that Bales, Eversole, and Stevenson were discriminated against in
selection.
Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) by not selecting
Bales, Eversole, and Stevenson for the position of portable batch plant driver. When Davidson
JD–76–07
5
10
15
20
25
30
35
40
45
50
35
later offered Bales and Eversole the position, and they declined, Respondent’s liability to them
ceased.
I now turn to the alternate portable batch plant driver position that Davidson did not offer
to any of the three alleged discriminatees. His reason for not offering it to Bales and Eversole,
was that they had declined the portable plant driver position, and he assumed they would be
uninterested in the alternate position. This ignores a critical fact. Both Bales and Eversole had
turned down the portable batch plant driver position because they would have been placed at
the bottom of the seniority list at both Kentucky Avenue and the batch plant. However,
Davidson made the decision that the alternate drivers would keep their call-in list positions at
their home plants, thus eliminating a primary reason that Bales and Eversole had declined the
portable plant driver position. This important difference was not communicated to either of them
at the time that Davidson created the alternate driver position and offered it to other employees.
As to Stevenson, since Davidson failed to demonstrate valid grounds for not offering him the
portable plant position, it follows that Respondent has also failed to establish such for not
offering him the alternate position.
Therefore, I conclude that Respondent violated Section 8(a)(3) and (1) by not offering
Bales, Eversole, and Stevenson the alternate portable plant driver position.
Stevenson’s Suspension and Discharge
Stevenson’s suspension and discharge resulted solely from the incidents occurring on
September 25, 2006.
Stevenson’s conduct on that date was no doubt unwise and constituted a ground for
some kind of disciplinary action: he admittedly lied about having the documents with the SSN’s
in his possession. The real issue is whether, but for Stevenson’s union activities, Respondent
have indefinitely suspended him on May 26, 2006, and ultimately terminated him on February
22, 2007.
Respondent has no formal progressive disciplinary system, and there is no evidence that
it has ever issued oral or written warnings to bargaining-unit employees, or that any
bargaining-unit employees besides Stevenson have been suspended. Respondent has
discharged three others—for attendance, blatant theft of concrete, and threats to drive a truck
into the building.
Here, Stevenson first told the batch man that he did not have the documents. He
repeated this initially to Davidson but got caught in inconsistencies and then handed them over.
Respondent thus received the documents in question the same day that Stevenson was asked
to surrender them in exchange for redacted versions. In contrast to the detrimental impact that
attendance problems, theft, and driving a truck into the building could create for Respondent, I
fail to see how Respondent was prejudiced in any way by Stevenson’s conduct. Moreover,
although Stevenson behaved imprudently, perhaps childishly, as a result of being upset over the
inclusion of the SSN’s, his concern was certainly understandable. Indeed, Respondent
determined that it had committed a serious error in breaching drivers’ privacy rights when it
failed to redact the SSN’s.
In these circumstances, I must conclude that the discipline imposed on Stevenson was
out of proportion to the gravity of the offense, which was relatively minor—one act of lapse of
judgment that resulted in no harm to Respondent. The insubstantial nature of the misconduct is
appropriately considered in determining whether the discipline was legitimate or pretextual.
JD–76–07
5
10
15
20
25
30
35
40
45
50
36
Detroit Paneling Systems, Inc., 330 NLRB 1170 (2000); Neptune Water Meter Co. v. NLRB, 551
F.2d 568, 570 (4th Cir. 1977).
In concluding that Respondent would not have taken the same action against Stevenson
but for his union activity, I also take into account Spurlino’s (and Weissman’s) evasiveness in
answering the simple question of who decided to suspend and then terminate him. I again note
Spurlino’s shifting testimony on this point and that he was contradicted by both Matney and
Davidson. This further leads me to believe that the discipline was pretextual and not bona
fide.76
Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) by indefinitely
suspending and later terminating Stevenson.
Stevenson’s August 25, 2006 Interview with Davidson
An employer violates Section 8(a)(1) when it denies an employee’s request to have a
union representative present at an investigatory interview that the employee reasonably
believes might result in disciplinary action. NLRB v. J. Weingarten, 420 U.S. 251 (1971). What
is a “reasonable” ground for such belief is measured by objective standards under all of the
circumstances present. Quality Mfg. Co., 195 NLRB 197, 198 fn. 3(1972); see also
Consolidated Edison Co. of New York, Inc., 323 NLRB 910, at 910 (1997). Once such a
request is made, the employer must grant the request, discontinue the interview, or offer the
employee the option of continuing the interview without the representative of discontinuing it.
Montgomery Ward & Co., 254 NLRB 826, 831 (1981), enfd. in relevant part 664 F.2d 1095 (8th
Cir. 1981).
Stevenson’s interview was clearly investigatory—Davidson questioned him about what
he done with the documents containing the SSN’s. Since Davidson expressly threatened him
with “further action” if the documents were not produced, there is no question but that
Stevenson had an objectively reasonable belief that disciplinary action might result.
The only remaining issue is whether Stevenson made a request under Weingarten to
have a union representative “present” at the interview, since he stated that he wanted to contact
his representative to see if he should give the documents back. I conclude in the affirmative.
The employee should not bear the burden of articulating a Weingarten request with legal
precision, and Stevenson’s words were reasonably construed as a request to have a
representative present to assist him. This comports with Board decisions holding that an
employee need not recite the exact language that he or she wants a union representative
present to trigger the employee’s Weingarten rights; rather, the employee’s request may be
more general, so long as it places the employer on notice of the desire for such representation.
See Bodolay Packaging Equipment, 263 NLRB 320, 325 – 326 (1982) (employee asked
whether he needed “a witness”); Southwest Bell Telephone Co., 227 NLRB 1223, at 1223 &
1227 (1977) (employee stated he wanted “someone” present). In any event, Davidson did not
give Stevenson an opportunity to even call and consult with the Union but instead proceeded
with the interview.

76 On the other hand, Weissman offered a reasonable explanation for the delay between the
time of her telephone interview with Stevenson and his actual termination—settlement efforts
that proved unsuccessful by early 2007. I therefore do not draw any negative inferences
against Respondent on the basis of the delay.
JD–76–07
5
10
15
20
25
30
35
40
45
50
37
Therefore, I conclude that Respondent, through Davidson, violated Section 8(a)(1) by
violating Stevenson’s Weingarten rights.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(5) and
(1) of the Act:
(a) Created the position of portable dispatch plant driver without first affording the Union
an opportunity to bargain, and created the position of alternate dispatch plant driver without first
affording the Union notice and an opportunity to bargain.
(b) Implemented a formal evaluation system, including a driving test, to select
employees for the position of dispatch plant driver, without first affording the Union notice and
an opportunity to bargain.
(c) Subcontracted unit work and used employees from a related company to perform unit
work, without first affording the Union notice and an opportunity to bargain.
(d) Failed to timely furnish the Union information that was relevant and necessary to the
Union’s role as exclusive bargaining representative of unit employees.
4. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act:
(a) Failed to select Matthew Bales, Ron Eversole, and Gary Stevenson for the position
of portable batch plant driver.
(b) Failed to select these employees for the position of alternate batch plant driver.
(c) Indefinitely suspended and then terminated Gary Stevenson.
5. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act and violated (1) of the Act:
(a) Denied Gary Stevenson’s request to have a union representative present and
continued to question him at a meeting in which he had a reasonable fear that discipline could
result.
Remedy
Because I have found that Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The General Counsel seeks rescission of Respondent’s unilateral changes as part of the
remedy. However, the portable batch plant at the Stadium has ceased operations, and the slab
pours for the Warehouse Project have been completed, with no indication that either work will at
any point be resumed in the future. Respondent maintained no records of the driving “tests” it
implemented. Accordingly, rescission would serve no purpose with respect to these violations.
JD–76–07
5
10
15
20
25
30
35
40
45
50
38
In contrast, Respondent has retained the employee “evaluations.” Even though nothing
in the record indicates that they have ever been used for any reason other than selection for the
portable plant, they could potentially adversely affect unit employees in the future. In these
circumstances, I will order that they be rescinded.
Since Respondent unilaterally implemented a new evaluation system, including a driving
test, for selecting employees as portable batch plant drivers, and it then unilaterally created the
position of alternate batch plant driver, Respondent shall be ordered to make any employees,
including Matthew Bales, Ron Eversole, and Gary Stevenson, whole for any loss of pay they
may have suffered as a result of Respondent’s failure to comply with the preexisting procedure
that governed how drivers were dispatched. This shall be done in the manner prescribed in
Ogle Protective Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Since Respondent failed to select employees Matthew Bales, Ron Eversole, and Gary
Stevenson for the positions of portable batch plant driver and alternate driver, in violation of
Section 8(a)(3), it must make them whole on this basis as well, in the manner described above.
Since these positions no longer exist, reinstatement is not applicable.
Since Respondent suspended and then terminated Gary Stevenson, in violation of
Section 8(a)(3), it must offer him reinstatement and make him whole for any loss of earnings
and other benefits, in accordance with F. W. Woolworth Co., above, with interest computed as
provided in New Horizons for the Retarded, above.
In the absence of any evidence that Respondent had a practice of having unit
employees perform overtime work, I do not deem a make-whole remedy appropriate for
Respondent’s failure to provide the Union with notice and an opportunity to bargain over the use
of subcontractors and Sprurlino Ohio employees for Warehouse Project slab pours. Contrast,
Clear Channel Outdoor, Inc., 344 NLRB No. 66 (2006) (not reported in Board Volumes).
The General Counsel seeks a special remedy under Mar-Jac Poultry Co., 136 NLRB
785 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 329 U.S. 817 (1964), more
specifically that Respondent be ordered to bargain in good with the Union, on request, for an 8-
month period. Under the Mar-Jac doctrine, the Board may extend the 1-year certification period
to compensate for the failure of an employer to bargain in good faith during that year. The
union’s majority status cannot be questioned during the period of extension. In essence, the
employer is not permitted to benefit from its own unlawful conduct.
The record must support the need for an extension and its appropriate length. American
Medical Response, 346 NLRB No. 88 at slip op. at 2 (2006). In determining such, the Board
considers the nature of the violations; the number, extent, and dates of the collective-bargaining
sessions; the impact of the ULP’s on the bargaining process; and the conduct of the Union
during negotiations. Ibid; Northwest Graphics, Inc., 342 NLRB 1288, 1289 (2004).
I conclude that an 8-month Mar-Jac extension is indeed appropriate in all the
circumstances present. Most significantly, 1) Respondent committed a number of violations of
Section 8(a)(5) and (3) that extended from May 2006, 4 months after the Union was certified,
until June 2007, over 1 year later; 2) the entire bargaining unit was affected by Respondent’s
unilateral changes in May 2006 and again in June 2007; 3) the unilateral changes in June 2007
occurred after the hearing on the original charges contained in the amended consolidated
complaint. Such conduct must be considered to reflect Spurlino’s disregard for his obligations
JD–76–07
5
10
15
20
25
30
35
40
45
50
39
under the law to bargain with the Union, and it would have had the natural effect of diminishing
unit employees’ faith that the Union could protect their interests.
I also note Matney’s statements to three employees (Bales, Eversole, and Mooney) prior
to the election that Spurlino had gone through union organizing before and deliberately
prolonged bargaining in an effort to get the union to give up trying to negotiate a contract. This
suggests that Respondent went through the motions of engaging in good faith negotiations with
the Union but had no intention of reaching an agreement.
ORDER
The Respondent, Spurlino Materials, LLC, Indianapolis, Indiana, its officers, agents,
successors, and assigns, shall

1. Cease and desist from
(a) Creating new positions or implementing new employee evaluation or testing
procedures without first affording Coal, Ice Building Material, Supply Drivers, Riggers, Heavy
Haulers, Warehousemen and Helpers, and Local Union No. 716, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the Union) notice and an
opportunity to bargain.
(b) Subcontracting out unit work or using Spurlino Ohio employees from performing
such work, without first affording the Union notice and an opportunity to bargain.
(c) Failing to timely furnish the Union information that is relevant and necessary to its
role as the exclusive bargaining representative of unit employees.
(d) Failing to select employees for new positions, or suspending, terminating or
otherwise disciplining them because they have engaged in activities on behalf of the Union.
(e) Denying employees’ requests for the presence of a union representative and
continuing to question them during meetings in which they reasonably fear that discipline may
result.
(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request, bargain with the Union as the exclusive representative of the
employees in the following appropriate unit concerning wages, hours, and other terms and
conditions of employment and embody in a signed agreement any understanding that is
reached: all full-time and regular part-time drivers and plant operators/batch men employed at
Respondent’s Indianapolis, Linden, and Noblesville, Indiana, facilities.
The Union’s certification is extended 8 months from the date Respondent begins to
comply with this Order.
(b) Within 14 days from the date of this Order, offer Gary Stevenson full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make employees, including Matthew Bales, Ron Eversole, and Gary Stevenson,
whole for any loss of earnings and other benefits they suffered as a result of Respondent’s
unilaterally implementation of new evaluation and testing procedures for the selection of
portable batch plant drivers, and its unilateral creation of the position of alternate portable plant
driver. This shall be done in the manner set forth in the remedy section of the decision.
(d) Make Matthew Bales, Ron Eversole, and Gary Stevenson whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
JD–76–07
5
10
15
20
25
30
35
40
45
50
40
manner set forth in the remedy section of the decision.
(e) Within 14 days of the Board’s Order, remove from its files any references to the
August 26, 2006 indefinite suspension and the February 22, 2006 termination issued to Gary
Stevenson, and within 3 days thereafter, notify him in writing that this has been done and that
the suspension and termination will not be used in any way against him.
(f) Within 14 days of the Board’s Order, remove from its file the employee evaluations
that were implemented without affording the Union notice and an opportunity to bargain.
(g) Within 14 days after service by the Region, post at its facilities at Indianapolis,
Linden, and Noblesville, Indiana, copies of the attached notice marked “Appendix A.”77 Copies
of the notice, on forms provided by the Regional Director for Region 25 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since May 1, 2006.
(h) Within 21 days after service by the Region, file with the Regional Director for Region
25 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. December 17, 2007

_______________________
Ira Sandron
Administrative Law Judge

77 If this Order is enforced by a judgment of a United States court of appeals, the words
in the notice reading “Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
JD–76–07
Indianapolis, IN
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
Coal, Ice Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen
and Helpers, and Local Union No. 716, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America (the Union) is the certified bargaining representative of
drivers and plant operators/batch men at our plants located in Indianapolis, Linden, and
Noblesville, Indiana (the unit).
WE WILL NOT create new positions or implement use of new employee evaluation or
testing procedures without first affording the Union notice and an opportunity to bargain.
WE WILL NOT subcontract out unit work or use Spurlino employees from Ohio to
perform it without first affording the Union notice and an opportunity to bargain.
WE WILL NOT fail to timely furnish the Union information that is relevant and necessary
to its role as the exclusive bargaining representative of unit employees.
WE WILL NOT discriminate against you in filling new positions, or suspend, terminate or
otherwise discipline you because you have engaged in activities on behalf of the Union.
WE WILL NOT deny your requests for the presence of a union representative and
continuing to question you during meetings in which you reasonably fear that discipline may
result.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL, upon request, bargain with the Union as the exclusive representative of unit
employees, concerning wages, hours, and other terms and conditions of employment and
embody in a signed agreement any understanding that is reached.
WE WILL make employees whole for any loss of pay or other benefits they suffered as a
result of our unlawfully creating new positions or implementing new evaluation or testing
procedures.
WE WILL make Matthew Bales, Ron Eversole, and Gary Stevenson whole for any loss
of pay or other benefits suffered as a result of our discrimination against them.
WE WILL within 14 days from the date of this Order, offer full reinstatement to Gary
Stevenson to his former position of employment, or if such position is no longer available, to a
substantially equivalent positions, without prejudice to any seniority or other rights and privileges
he previously enjoyed.
WE WILL remove from our files any reference to the unlawful suspension and
termination of Gary Stevenson, and within 3 days thereafter notify him in writing that this has
JD–76–07
5
10
15
20
25
30
35
40
45
50
42
been done and that the suspension and discharge will not be used against him in any way.
WE WILL remove from our files the employee evaluations that we prepared without
first affording the Union notice and an opportunity to bargain.
SPURLINO MATERIALS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 317-226-7413.