Ready Mix USA, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 15, 2015

10-CA-140059 (N.L.R.B. Sep. 15, 2015)

JD–52–15
Huntsville, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
READY MIX USA, LLC,
and Cases 10–CA–140059
10–CA–143601
10–CA–145224
INTERNATIONAL BROTHERHOOD OF 10–CA–147703
TEAMSTERS, LOCAL 402. 10–CA–148185
Counsel:
Katherine Chahrouri, Esq. (NLRB Region 10)
of Birmingham, Alabama, for the General Counsel
Arthur F. Silbergeld Esq. of Los Angeles, California, and
Shafeeqa Giarratani, Esq. (Norton Rose Fulbright US LLP)
of Austin, Texas, for the Respondent
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. These cases involve a series of disputes
arising in the wake of a union’s October 2014 election and certification as the bargaining
representative of the employees at a Huntsville, Alabama cement manufacturing facility.
Specifically, the government alleges that the employer violated the National Labor
Relations Act (Act) in the following ways, by: (1) by maintaining overly broad rules restricting
solicitation and distribution of materials; (2) in two instances interrogating an employee about
union matters; (3) unilaterally implementing a “Drive-Cam” system in employee work vehicles
without providing the union prior notice and an opportunity to bargain over its effects; (4) failing
and refusing to provide the union with requested information regarding the Drive-Cam system; (5)
discharging an employee for disciplinary reasons without providing the union prior notice and an
opportunity to bargain over the discharge and its effects; and (6) refusing to meet and/or
collectively bargain with the union if Jerry Davis, an employee and member of the union’s
negotiating committee, was to be present at bargaining sessions.
As discussed in depth below, I find that the employer has violated the Act as alleged with
regard to items (1), (3), and (6). With regard to item (4) I find that the employer unlawfully failed
to provide one piece of requested information but unlawfully delayed providing three others and
that under Board precedent no amendment to the complaint allegations is required to reach these
conclusions of unlawful delay. I dismiss items (2) and (5).
JD–52–15
2
STATEMENT OF THE CASE
On October 30, 2014, the International Brotherhood of Teamsters, Local 402 (Union) filed
an unfair labor practice charge alleging violations of the Act by Ready Mix USA LLC (Ready Mix
or Employer or Respondent), docketed by Region 10 of the National Labor Relations Board 5
(Board) as Case 10–CA–140059. An amended charge was filed by the Union on March 16,
2015, and a second amended charge filed April 15, 2015. The Union filed a charge, docketed by
Region 10 of the Board as Case 10–CA–143601 on December 23, 2014. An amended charge in
that case was filed April 8, 2015. On January 28, 2015, the Union filed an unfair labor practice
charge docketed by Region 10 as Case 10–CA–145224. An amended charge in that case was 10
filed April 15, 2015. On March 6, 2015, the Union filed an unfair labor practice charge docketed
by Region 10 as Case 10–CA–147703. The case was the subject of an amended charge filed by
the Union on April 15, 2015. On March 16, 2015, the Union filed an unfair labor practice charge
docketed by the Region as Case 10–CA–148185.
15
Based on an investigation into these charges, on May 7, 2015, the Board’s General
Counsel, by the Regional Director for Region 10 of the Board, issued an order consolidating the
above-referenced cases and a consolidated complaint and notice of hearing alleging that Ready
Mix had violated the Act. An amended order consolidating cases and issuing a consolidated
complaint and notice of hearing was filed by the General Counsel on May 14, 2015. (Throughout 20
this decision I refer to the extant consolidated complaint as the complaint.) Ready Mix filed an
answer denying all alleged violations of the Act on May 27, 2015. Its answer included a motion
for a more definite statement regarding paragraph 8 of the complaint.
A trial was conducted in this matter on July 6 and 7, 2015, in Huntsville, Alabama. At the 25
commencement of the hearing I denied Ready Mix’s motion for a more definite statement, for the
reasons stated in the record (Tr. 11–12).1
Counsel for the General Counsel and Ready Mix filed post-trial briefs in support of their
positions by August 12, 2015. On the entire record, I make the following findings, conclusions of 30
law, and recommendations.
JURISDICTION
Ready Mix is a Delaware corporation with an office and place of business in Huntsville, 35
Alabama. Ready Mix is engaged in the manufacture and nonretail sale of cement at its
Huntsville, Alabama place of business (the Huntsville facility). During the twelve months
preceding May 14, 2015, which Ready Mix admits is a representative period, Ready Mix, in
conducting its operations at the Huntsville facility, purchased and received at the Huntsville facility
goods valued in excess of $50,000 directly from points outside the State of Alabama. At all 40
material times Ready Mix has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. At all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.

1At the commencement of the hearing, counsel for the General Counsel moved (without
objection) and I granted the motions, to delete ¶7(c) of the complaint, and to change the date set
forth in ¶11 from January 22 to January 20. Also, at the commencement of the hearing counsel
for the General Counsel represented that Case 10–CA–143609, which was pled in the complaint
(¶1(g)) and listed in the caption, was inadvertently included in the pleadings. I ordered the
caption amended to remove the case. I now amend the complaint to delete ¶1(g) and remove the
reference to the case in the amended order consolidating cases.
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3
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES5
Below, I make findings as to background matters and then turn to findings and analysis as
to each allegation of unlawful conduct advanced by the General Counsel.
Background10
Ready Mix produces, sells, and supplies concrete in various states in the southeastern
United States. Its “parent” company is CEMEX, a national construction materials supply
company that owns Ready Mix. Witnesses described Ready Mix as “a part of CEMEX” and “a
region of CEMEX.” 15
Ready Mix maintains a number of facilities in Alabama, including one in Huntsville. On
October 17, 2014, the Union won a representation election, with 19 employees voting. Based on
the results of this election, on October 30, 2014, the Union was certified by the Board as the
exclusive collective-bargaining representative of the following unit of employees:20
All regular part-time and full -time drivers, loaders, dispatchers, and mechanics,
employed by the Employer at its 2020 Vermont Road, Huntsville, Alabama 35806
facility; but excluding all office clerical employees, professional employees,
managers, guards and supervisors as defined in the Act.25
The Union requested bargaining on November 4, 2014. The parties met for their first
collective-bargaining session on January 13, 2015. They met again four times before the hearing
in this matter: February 24, April 14, June 8, and 25.
30
Attorney Arthur Silbergeld, Ready Mix Director of Human Resources Charles O’Reilly, and
Ready Mix District Operations Manager Ron Senyeri, represented Ready Mix at the negotiating
sessions.
The Union was represented by the Union’s Secretary/Treasurer and business agent, Joe 35
Gronek, Attorney Sam Morris, International Union Business Representative Stu Helfer, and,
during the first two negotiating sessions, by Ready Mix Huntsville employee Jerry Davis, who had
been the union’s election observer during the representation election.
As described below, after the February 24 meeting, Ready Mix conditioned bargaining on 40
the Union’s agreement that Davis would not be present. Huntsville employee Joe Carlisle joined
Gronek at the bargaining table for the Union at the June 25 meeting (Morris and Helfer do not
appear to have attended that meeting).
45
50
JD–52–15
4
A. 8(a)(1) issues
1. Unlawfully overbroad work rules
5
The government alleges and Ready Mix admits (GC Exh. 1(s), (x) at ¶¶7) that for at least
six months preceding March 16, 2015 (the date of the filing of the unfair labor practice charge in
Case 10–CA–148185) Ready Mix has maintained the following rules:
1. In Section B of its "CEMEX Work Rules":10
The following offenses can lead to dismissal at the discretion of the management,
on the first or any subsequent recurrence after the employee has been notified by
his supervisor that the offense has been made. A record of this notification will be
incorporated in the personnel records of the employee at the time it is given.15
* * * * 12. Solicitation or distribution of any non-work related materials without
supervisor's permission.
2. In its Ready Mix USA, LLC Manual (June 10, 2010):20
RULES OF CONDUCT
Prohibited conduct which may subject an employee to disciplinary action, including
immediate termination or demotion without notice or warning include, but are not 25
limited to, the following described conducts. The disciplinary action taken will
depend upon the nature and severity of the circumstances.
* * * * 31. Solicitation or distribution of unauthorized materials or products to
employees or customers on Company property (emphasis in original).30
Based on the testimony, the Ready Mix manual appears to have been included in (or be)
the handbook distributed to employees at all Ready-Mix locations. (Tr. 286–287, 288–289.) The
record does not state where the Section B CEMEX Work rules are distributed. As part of the
CEMEX policies, the evidence indicates that they are available to employees on the company’s 35
intranet site by request. (Tr. 289.) Given that this is a CEMEX “work rule,” and therefore part of
work rules that O’Reilly testified (with specific discussion of a different work rule) that apply to all
CEMEX-affiliated facilities, including all Ready-Mix facilities, I find that this work rule is available
on request, through the intranet to all Ready Mix employees at the Respondent’s various
facilities. 40
In addition, as set forth at trial, there is a CEMEX solicitation, distribution, and vending
policy, dated as “approved” on November 10, 2008, maintained for CEMEX, of which Ready Mix
is a part. It states, in pertinent part:
45
CEMEX recognizes that employees may have interest in events and organizations
outside the work place. Employees, however, may not engage in solicitation during
work time for any purpose. In addition, company employees may not engage in
distribution or vending during work time or in working areas for any purpose. Work
time is all time on the company premises other than before and after work, at meal 50
periods and at break times.
JD–52–15
5
Ready Mix’s director of HR, Charles O’Reilly, testified that this CEMEX policy applies to all
CEMEX-affiliated facilities, which includes all Ready Mix facilities. Unlike the June 10, 2010
Ready Mix solicitation rule (set forth above) which, as part of the rules of conduct is contained “in
the previous employee handbooks,” the CEMEX policies, such as the 2008 CEMEX solicitation
policy, are available on CEMEX’s intranet system “by request.” 5
During collective-bargaining negotiations with the Union, in the meeting, conducted June
8, 2015, Ready Mix proposed changes to the CEMEX policy and discussed the new proposal with
the Union.2 The Union did not agree to the new proposal in that meeting, or on June 25, the final
bargaining session before the hearing in this matter. 10
Analysis
The General Counsel alleges that the two rules enumerated above—rule B.12 from the
CEMEX work rules, and rule of conduct 31 from the Ready Mix manual (dated June 10, 2010)—15
are violative of Section 8(a)(1) of the Act. The Respondent admits that it does and has
maintained these rules.
Section 7 of the Act provides that:
Employees shall have the right to self-organization, to form, join, or assist labor 20
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all of such activities . . .
If a work rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage Village-25
Livonia, 343 NLRB 646, 646 (2004). These do not.
If the work rule does not explicitly restrict Section 7 rights "the violation is dependent upon
a showing of one of the following: (1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the 30
rule has been applied to restrict the exercise of Section 7 rights." Id. at 647.
In the instant case, there is no allegation that the challenged work rules were promulgated
in response to union activity. There is also no claim that the rules have been discriminatorily
applied. Rather, in this case the claim is that the challenged rules reasonably would be construed 35

2The new proposal stated:
Limits on Solicitation and Distribution
To protect you and our customers from unnecessary interruptions and
annoyances, it is our policy to prohibit the distribution of paper literature in work
areas and to prohibit solicitation and distribution of literature during employees'
working time. "Working Time" is the time an employee is engaged or should be
engaged in performing his /her work tasks for Ready Mix. These guidelines also
apply to solicitation by electronic means, and to distribution by electronic means
during employees' working time. Solicitation or distribution of any kind by non -
employees on Company premises is prohibited at all times. Nothing in this section
prohibits employees from discussing terms and conditions of employment.
JD–52–15
6
by employees to prohibit Section 7 activity. Thus, "the appropriate inquiry is whether the rule
would reasonably tend to chill employees in the exercise of their Section 7 rights." Hyundai
American Shipping Agency, 357 NLRB No. 80, slip op. at 2 (2011); Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enf’d. 203 F.3d 53 (D.C. Cir. 1999). Notably, in cases such as this one,
“[a]s the mere maintenance of the rule itself serves to inhibit the employees’ engaging in 5
otherwise protected organizational activity, the finding of a violation is not precluded by the
absence of specific evidence that the rule was invoked as any particular date against any
particular employee.” Farah Mfg. Co., 187 NLRB 601, 602 (1970), enf’d. 450 F.2d 942 (5th Cir.
1971). For “[i]t is It is well settled that an employer may violate Section 8(a)(1) through the mere
maintenance of work rules, even in the absence of enforcement or evidence that the rules were 10
implemented in violation of Section 7, as the appropriate inquiry is whether the rule would
reasonably tend to chill employees in the exercise of their Section 7 rights.” New Passages
Behavioral Health, 362 NLRB No. 55, slip op. at 1 (2015) (and cases cited therein).
Employees’ rights under Section 7 to distribute materials and solicit coworkers on the 15
employer’s property are well established in Board and Supreme Court precedent. There can be
no question but that the employer work rules cited above are presumptively unlawful under long-
settled Board precedent.
The Supreme Court has long recognized that “the right of employees to self-organize and 20
bargain collectively established by § 7 of the [Act] necessarily encompasses the right effectively
to communicate with one another regarding self-organization at the jobsite.” Beth Israel Hospital
v. NLRB, 437 U.S. 483, 491 (1978). As the Supreme Court has recognized, the workplace "is a
particularly appropriate place for the distribution of § 7 material, because it 'is the one place
where [employees] clearly share common interests and where they traditionally seek to persuade 25
fellow workers in matters affecting their union organizational life and other matters related to their
status as employees.'" Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978) (court’s parenthetical),
quoting Gale Products, 142 NLRB 1246 (1963).
Thus, rules that ban employee Section 7 solicitation at an employer’s facility that apply to 30
nonworking areas during nonworking time are presumptively unlawful:
time outside working hours, whether before or after work, or during luncheon or
rest periods, is an employee’s time to use as he wishes without unreasonable
restraint, although the employee is on company property. It is therefore not within 35
the province of an employer to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours, although on company
property. Such a rule must be presumed to be an unreasonable impediment to
self-organization and therefore discriminatory in the absence of evidence that
special circumstances make the rule necessary in order to maintain production or 40
discipline. [Internal quotations omitted.]
NLRB v. Republic Aviation Corp., 324 U.S. 793, 803–804 fn. 10 (1945) (quoting Peyton Packing
Co., 49 NLRB 828, 843–844 (1943)).
45
Similarly, a rule prohibiting distribution of literature on employees' own time and in
nonworking areas is presumptively invalid. See, e.g., Our Way, Inc., 268 NLRB 394 (1983);
Stoddard-Quirk Mfg., 138 NLRB 615 (1962). A no-distribution rule which is not restricted to
working time and to work areas is overly broad and presumptively unlawful. See, e.g., MTD
Products, Inc., 310 NLRB 733 (1993).50
JD–52–15
7
Moreover, a rule providing for management approval for distribution is antithetical to
Section 7 activity and a reasonable employee will be chilled from even asking. Teletech
Holdings, Inc., 333 NLRB 402, 403 (2001) (“any distribution rule that requires employees to
secure permission from their employer prior to engaging in protected concerted activities on an
employee's free time and in nonwork areas is unlawful”). 5
The Respondent’s rules, cited above, with their blanket prohibition on solicitation of
unauthorized materials and requirement that the distribution or solicitation of “non-work”-related
materials receive a supervisor’s permission, are, without question, presumptively overbroad and
unlawful. And the Respondent has offered nothing at all in the way of special circumstances that 10
would defeat that presumption by demonstrating that these overly broad rules are necessary to
maintain production or discipline. See Republic Aviation, supra.
The Respondent’s defense to these allegations is that it maintains a third rule, the 2008
CEMEX solicitation and distribution policy, more reasonable (in terms of longstanding Board 15
precedent), that is available to employees “upon request” and available through the Employer’s
intranet system. The Respondent argues that the two challenged policies are subject to the third,
and contends that when read in conjunction with this third policy, “any apparent defects in the
[other two policies] are cured when viewed in the full context, as required by law.” (R. Br. at 11).
According to the Respondent, “[r]eading the three policies together, it is clear that what is meant 20
[in the first two policies] by distribution or solicitation that is ‘unauthorized’ or ‘without [a]
supervisor’s permission’ does not include actions permitted under the NLRA, as the CEMEX
policy makes clear such conduct is authorized.” (Id. at 10, emphasis and bracketing in original).
The argument is a nonstarter. It is meritless in a couple of different ways.25
First, as a matter of fact—by which I mean by any reasonable reading—the addition of the
2008 CEMEX solicitation policy to the discussion renders the Respondent’s overall contextualized
solicitation/distribution more restrictive not less and, more to the point, does absolutely nothing to
cure the unlawfulness of the rules challenged by the General Counsel. 30
The CEMEX work rule unlawfully bars solicitation or distribution “without supervisor’s
permission.” The Ready Mix rule of conduct bars solicitation or distribution of “unauthorized
materials.” The 2008 CEMEX solicitation/distribution policy prohibits solicitation/distribution
during working time (as defined) and in working areas. Thus, the intrepid employee that thought 35
to request a copy of that policy from a member of the Employer’s human resources department
(Tr. 288–289) would learn for the first time from reading it that even with a supervisor’s
permission and even with regard to authorized materials he was prohibited from soliciting during
working time and in working areas. At the same time, nothing in the 2008 solicitation policy
affirmatively permits solicitation or distribution without supervisory permission and nothing in the 40
2008 solicitation policy provides a guide for what materials are authorized to be distributed. In
other words, as a matter of English, a synthesis of the three rules leaves the unlawful prohibitions
in the first two rules untouched. The incorporation of the third rule simply adds an additional
prohibition—without regard to authorization or permission--on solicitation and/or distribution
during working time and in working areas.345

3I note that O’Reilly’s testimony (Tr. 285–286), in which he suggests that he is of the opinion
that the 2008 CEMEX policy “defines” the more recently-enacted policies, is of no consequence,
even assuming it is true. The issue is an objective one, whether the challenged rules “would
reasonably tend to chill employees in the exercise of their Section 7 rights." Hyundai American
Shipping Agency, supra. As a matter of reading, the 2008 CEMEX policy does not touch on
much less contradict the unlawful portions of the rules of conduct and work rules.
JD–52–15
8
Second, the Respondent’s argument is wrong as a matter of law, and this would be so
even if the 2008 policy could be read to mitigate the unlawful portions of the handbook rules. The
Respondent is entirely correct that rules must be read in context.4 But the challenged handbook
rules make no reference to the 2008 policy, and there is no evidence that the Employer took any
steps to explain to employees that the challenged policies do not mean what they reasonably 5
would be read to mean, or that they are “defined” elsewhere. Even assuming, very wrongly, as I
have pointed at above, that the 2008 policy lawfully restated the unlawful portions of the
challenged policies, the result would be an ambiguity, which is construed against the employer as
promulgator of the rule. Lily Transportation Corp., 362 NLRB No. 54 fn. 3 (2015); Norris/
O’Bannon, 307 NLRB 1236, 1245 (1992); see, Lafayette Park Hotel, 326 NLRB at 828 (even if 10
rule not intended to reach protected conduct, its lawful intent “must be clearly communicated to
employees”); enf’d. mem. 203 F.3d 52 (D.C. Cir. 1999); Teletech Holdings, supra at 403 (“When
a rule of this kind is found presumptively unlawful on its face, the employer bears the burden to
show that it communicated or applied the rule in a way that conveyed a clear intent to permit
distribution of literature in nonworking areas during nonworking time. A clarification of an 15
ambiguous rule or a narrowed interpretation of an overly broad rule must be communicated
effectively to the employer's workers to eliminate the impact of a facially invalid rule”) (citations
omitted); see Hyundai America Shipping Agency, 357 NLRB No. 80, at slip op. 12.
Indeed, in a recent case the Board rejected a contention essentially identical to the 20
Respondent’s here. In Lily Transportation Corp., 362 NLRB No. 54, slip op. at 1 and 6–7 (2015),
the Board rejected the employer’s contention that a facially unlawful single-sentence rule in an
“inappropriate conduct” provision regarding disclosure of confidential information was lawful when
“read in the larger context of the employer’s confidentiality policy statement context, and when
read together, employees would not reasonably construe the rule to also prohibit discussing 25
wages and other terms and condition of employment.” Lily Transportation, supra at slip op. 6. In
reasoning adopted by the Board, and equally applicable to the argument advanced by the
Respondent in this case, the administrative law judge in Lily rejected the employer’s contention:
The problem with the Respondent's argument is that we are not dealing 30
with the lawfulness of the "Confidentiality of Information" policy in the handbook at
pages 8, 9 but rather with the facial challenge of the single sentence under the
"Inappropriate Conduct" provision in the handbook at pages 23, 24.
The [unlawful ‘inappropriate conduct’ statement of the handbook] does not 35
reference the [other] confidentiality of information policy located towards the front
of the handbook. Employees would not necessarily understand that the
inappropriate conduct statement refers to the confidential policy statement. The
inappropriate conduct statement does not refer to or reproduces the confidentiality
of information policy statement. Employees would reasonably assume that the 40
[unlawful inappropriate conduct statement] standing alone could result in
discipline. It is unlikely that employees reading this sentence would also search the
handbook and derive a narrower interpretation of the prohibited disclosure of
information by reading the two separate provisions together, especially in light of
the fact, that the confidentiality statement is located at the front of the handbook 45
___________________________
4“In determining whether a challenged rule is unlawful, the Board must . . . give the rule a
reasonable reading. It must refrain from reading particular phrases in isolation, and it must not
presume improper interference with employee rights.” Lutheran Heritage Village-Livonia, 343
NLRB at 646.
JD–52–15
9
while the violation for disclosing of employee information is one of numerous
conduct violations printed near the end of the handbook.
Accordingly, I find that the Respondent’s maintenance of [the confidentiality
portion of the inappropriate conduct provision] has a reasonable tendency to inhibit 5
employees’ protected activity and, as such, violates Section 8(a)(1).
354 NLRB No. 54, at slip op. 7 (citation omitted).
In the same way that the unlawful provision in the back of the handbook did not reference 10
the lawful confidentiality provisions in the front of the handbook in Lily Transportation, here the
challenged CEMEX work rules and Ready-Mix rules of conduct do not reference the more
reasonable 2008 CEMEX distribution/solicitation policy. Thus, as in Lily, “Employees would
reasonably assume that the [challenged rules] standing alone could result in discipline.” And this
is far more true here than it was Lily Transportation: in Lily Transportation the Board found it 15
“unlikely that employees reading the [offending] sentence would also search the handbook and
derive a narrower interpretation of the prohibited [rule] by reading the two separate provisions
together, especially in light of the fact, that the [lawful] statement is located at the front of the
handbook while the [unlawful rule] is . . . printed near the end of the handbook.” Here, while at
least one of the unlawful rules is in the employee handbook, the allegedly redeeming CEMEX20
distribution/solicitation policy is not—it is on the Employer’s intranet and available “upon request”
(Tr. 288–289). CEMEX’s maintenance of a third, assumedly lawful distribution/solicitation policy
does not vitiate the unlawfulness of the challenged policies.5
2. Alleged Interrogations25
Jeremy Franko worked for Ready Mix from September 2007 until March 2015. Franko
worked as a dispatcher in Ready Mix’s Trinity, Alabama facility. Near the end of his employment,
central dispatch was moved to Decatur, Alabama, and in March, Franko was asked to train some
new truck drivers and then report to Ready Mix’s Athens, Alabama facility. There, at the time he 30
ceased employment, he was training the manager who would be designated plant manager for
the Huntsville facility.
Franko testified that in two instances, in January 2015, he was asked by Ready Mix
District Operations Manager Ron Senyeri whether he had heard anything about “conversations” 35
or “talk” about the Union in Huntsville. Franko testified that these questions were put to him by
Senyeri while they were together in the office trailer at Ready Mix’s Trinity facility. Franko
testified that in both instances he answered truthfully. In the first instance he told Senyeri no, he
had not heard anything. In the second instance he told him yes, that he “heard a couple of
drivers talking about it at the time clock, . . . clocking out, just shooting the breeze, and they 40
clocked out and left. That was it.” Franko testified that Senyeri “asked me if I knew who they
were, and I told him I don’t remember who it was.” Franko also agreed that Senyeri asked if there
were any questions about the Union in Huntsville, and testified that the drivers he overheard
discussing the Union as they clocked out were discussing some unidentified “confusion”
regarding the Huntsville election. 45

5At trial, the Respondent elicited testimony (Tr. 291–292) and introduced a bargaining
proposal (R. Exh. 47) offered to the Union on June 8 that sought to revise the solicitation/
distribution policy. Although the argument is not pursued on brief, I note that even a union’s
affirmative agreement to maintenance of an unlawful solicitation/distribution rule—which did not
occur here—is not a defense to an employer’s liability. NLRB v. Magnavox, 415 U.S. 322 (1974).
JD–52–15
10
For his part, Senyeri testified and did not deny the pertinent parts of Franko’s testimony.6
He agreed that he spoke with Franko about “feedback” on costumer issues or “employee morale.”
He called this “typical” because “our dispatchers are with our drivers” at many locations.
“Sometimes they may hear complaints and issues that may pop up that maybe a plant manager
wouldn’t hear.” Senyeri testified that in the Fall of 2014, Franko had asked him “what’s going on 5
in Huntsville, some of the guys have been talking about a union there.” Senyeri testified that he
said “well, yeah, that’s what’s going on, and I asked him does anybody need to ask me any
questions; I could be available or would be available at some point in time.” Senyeri testified that
he asked Franko when he saw him at the Trinity plant if “any of the guys have any more
questions concerning the Union; I’m here . . .”10
Based on this testimony, I credit Franko’s testimonial account. It was credibly offered.
And, as discussed, Senyeri did not deny it, but rather gave an account that admitted that it was
“typical” to inquire with dispatchers such as Franko about “employee morale,” and that he asked
Franko whether he knew of any employees who had questions concerning the Union. Seneyri’s 15
nondenial adds credence, beyond demeanor, to Franko’s account.
Analysis
The complaint alleges that in two instances, mid-November 2014 and late November or 20
early December 2014, at the Trinity facility, Ron Senyeri “interrogated” an employee about the
employee’s union membership, activities, and sympathies, and the union membership, activities,
and sympathies of other employees.
Based on the testimony, there were no questions at any time by Senyeri regarding, or 25
likely to reveal, Franko’s membership, activities, or sympathies. Hence that portion of the
complaint can be quickly dismissed. In addition, while the dates alleged in the complaint do not
match the testimony that does not bar the General Counsel’s claim.7
The closer question is whether, as alleged, Senyeri’s interaction with Franko amounted to 30
an unlawful interrogation by asking about other employees.
It is well established that not every interrogation is unlawful under the Act. Whether the
questioning of an employee constitutes an unlawful coercive interrogation must be considered
under all the circumstances and there are no particular factors "to be mechanically applied in 35
each case." Rossmore House, 269 NLRB 1176, 1178, enf’d. 760 F.2d 1006 (9th Cir. 1985);
Westwood Health Care Center, 330 NLRB 935, 939 (2000). While the Board has identified a

6Senyeri denied (Tr. 257) asking Franko for the names of anyone “doing union organizing,”
asking him if “anyone supported the Union,” or asking him to “report to management any
employees who supported or sympathized with the Union.” These denials do not go to the
substance of Franko’s testimony.
7As the Board has explained, “Scrupulous adherence to dates alleged in a complaint is not
necessarily required, and to do so here would elevate form over substance.” Smurfit-Stone
Container Enterprises, 357 NLRB No. 144, slip op. at 5 fn. 36 (2011) (citation omitted) (citing
Salon/Spa at Boro, Inc., 356 NLRB No. 69, slip op. at 18–19 (2010)), enf’d. 594 Fed. Appx. 897
(9th Cir. 2014). I do not find the deviation in dates alleged in the complaint from the evidence an
impediment to a finding of a violation. Having said that, I do believe the date of the alleged
interrogations described by Franko—months after the representation election and the union’s
certification—to be a factor in assessing the coerciveness of the questions posed by Senyeri.
JD–52–15
11
number of factors that are “useful indicia” in determining whether the questioning of an employee
constitutes an unlawful interrogation,8 the Board has explained that "[i]n the final analysis, our
task is to determine whether under all the circumstances the questioning at issue would
reasonably tend to coerce the employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the Act." Westwood, supra at 940; 5
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).9
In this case, the allegation of unlawful conduct rests on two instances in January 2015,
when Senyeri asked Franko if there was any union “talk” in Huntsville. In one of the two
instances Franko told Senyeri that he had heard two employees “shooting the breeze” about the 10
Union as they clocked out. In that instance, Senyeri asked if Franko knew who they were.
Franko told him, truthfully, that he did not recall.
If this were part of a larger pattern of employer hostility and discrimination toward
employees engaged in union activity, I might consider this coercive. If Senyeri’s statements 15
appeared to be part of a determined or systematic effort to put Franko in the position of informing
on union activity, or finding out from Franko which employees supported the union or were
engaged in union activity, I would be likely to consider this coercive. But alone, in isolation, I do
not find that an employee in Franko’s position would reasonably tend to be threatened, coerced
or restrained by these interchanges. They contained no suggestion of threat or coercion or 20
indication that the information would be used against others.
Senyeri, no doubt, is an important official at Ready Mix, and this certainly weighs in favor
of finding a violation. But the remaining Bourne factors all weigh against finding a violation.
Senyeri worked closely with Franko, spoke to him on a daily basis, and both conversations 25

8Westwood Health Care Center, 330 NLRB 935, 939 (2000), quoting Perdue Farms Inc. v.
NLRB, 144 F3d. 830, 835 (D.C. Cir. 1998). These include the "Bourne factors," enunciated in
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), and set forth in Westwood Health Care Center,
supra at 939:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g., was employee called from work to the
boss's office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.
9Of course, whether or not the questioned employee was actually intimidated is irrelevant. “It
is well settled that the basic test for evaluating whether there has been a violation of Section
8(a)(1) is an objective test, i.e., whether the conduct in question would reasonably have a
tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights,
and not a subjective test having to do with whether the employee in question was actually
intimidated.” Multi-Aid Services, 331 NLRB 1226, 1227–1228 (2000), enf’d. 255 F.3d 363 (7th
Cir. 2001) (Board’s emphasis). Accord, Miller Electric Pump, 334 NLRB 824, 825 (2001); Joy
Recovery Technology Corp., 320 NLRB 356, 356 (1995), enf’d. 134 F.3d 1307 (7th Cir. 1998).
JD–52–15
12
occurred in the course of casual “regular daily conversations” largely about other work-related
matters. There may be things I do not know about, but the record is devoid of evidence of
employer hostility toward unionization, union activity, or discrimination toward employees. There
are several unfair labor practices alleged, and, as indicated, I will find merit to a number of them.
But none involve allegations of unlawfully motivated misconduct. Neither the 8(a)(5) nor the 5
8(a)(1) allegations found to be a violation of the Act are instances in which employer hostility or
antiunion animus forms an element of the violation as a matter of law or fact. None was
demonstrated.10 I do not think that Senyeri’s questions—even his asking which employees were
talking about the union at the time clock, evinced any intent that he was asking in order to take
action against them. While asking whether anyone was talking about the union does amount to a 10
question about “union activity,” it is far removed from a demand to know who is engaged in union
organizing or who supports the union. Finally, Franko answered Senyeri’s questions truthfully, a
Bourne factor that, under these circumstances at least, reinforces the noncoercive nature of these
inquiries.
15
A further factor influences my view. The alleged interrogations occurred approximately
three months after the October 17 representation election, at a time when collective-bargaining
negotiations were commencing. The Union was certified less than two weeks after the election,
indicating the absence of much if any post-election disputation. In other words, these isolated
interrogations occurred well after the conflict and campaigning that is attendant to representation 20
campaigns had subsided. Of course, I do not mean to suggest that an employer cannot
coercively intimidate an employee outside of the election period, but it is relevant to assessing the
coerciveness of this interrogation that it did not occur in an atmosphere or context where the fear,
suspicions and uncertainty that often animate a campaign were in play. Questioning whether
someone was talking about the union, or had questions about the union, does not carry the 25
implicit threat of retaliation that it might in the middle of a hard fought organizing campaign,
especially one involving employer actions against union supporters. See, Southern Pride Catfish,
331 NLRB 618, 622–623 (2000) (finding interrogation unlawful, relying in part on fact that “[t]he
inquiries took place shortly before a Board election while Respondent was systematically
attempting to ascertain its employees’ union sympathies and threatening them”). Most of the 30
case law regarding interrogation arises in the context of organizing campaigns. This is
undoubtedly when most interrogation occurs, but it is also a context that heightens the coercive
tendency of the inquiry. That is absent here.
Finally, I note that the only case the General Counsel cites in support of these specific 35
allegations is a default judgment case, which is necessarily without precedential value, in which
the Board summarily adopted an allegation that an employer’s representative unlawfully
interrogated employees about other employees’ union activities. (See, GC Br. at 44, citing
Casworth Enterprises, Inc., 362 NLRB No. 131 (2015)). While I agree that it may be unlawful to
interrogate employees about other employees’ union activity, I am unaware of any case that 40
would render the conduct engaged in here, in its full context, unlawful.

10As discussed below, the Respondent evinced a somewhat cavalier indifference to its
obligation to respond to the Union’s information request but that was not an issue of hostility or
discrimination. Similarly, while I find that the Respondent unlawfully refused to bargain with
employee Jerry Davis on the negotiating team, there was no general refusal to bargain or anti-
union hostility or discrimination involved in this dispute. The dispute over the duty to bargain over
the use of Drive-Cam is a dispute over the scope of the statutory duty to bargain, not an issue of
employer hostility to unionization. Finally, I have found that the Employer maintained unlawfully
broad rules on solicitation and application, but there is no evidence that these rules were applied
against employees or a product of antiunion hostility.
JD–52–15
13
Under all the circumstances, I do not find a violation of the Act.11
B. 8(a)(5) and (1) issues12
1. The duty to bargain over the effects of the implementation of Drive-Cam5
Drive-Cam is the name of an audio and visual recording device that Ready Mix purchased
and installed in its trucks in an effort to document and deter unsafe driving events and practices.
According to the device’s “overview” brochure (entered into evidence), the Drive-Cam device
entails multiple cameras installed in the driver’s cabin. Based on parameters set by the customer 10
(i.e., here, the employer), the device records “events” such as collisions or erratic driving.
According to the brochure, the device is useful for documenting seat belt infractions, cornering
too fast, following distance, braking issues, food or drink issues, and failure to scan the
intersection. The recording is downloaded and available to the employer to review. It can be
used as a basis of discipline, but can also be a basis for exonerating the employee if the 15
recording demonstrates, in an accident, for instance, that the fault lies with another vehicle.
According to the testimony of HR Manager O’Reilly, the decision to implement Drive-Cam
was made by the company nationally in 2012 or 2013. The program began to be unveiled
regionally in 2014. The schedule called for installation of the cameras in the trucks for the 20
northern Alabama facilities in August 2014, with installation at Huntsville scheduled for and
occurring at the end of August 2014. Managers and employees were also trained on the system
at this time. By the end of August, nearly all the Huntsville employees had signed releases
relating to Drive-Cam, which acknowledged that Drive-Cam would be in the truck they were
driving and “which may continuously monitor and capture my driving and behavior” and 25
acknowledged that “in the course of driving a CEMEX vehicle, I am being videotaped,
photographed, or otherwise recorded.” The releases stated that the signing employee released
all rights to the recordings and granted CEMEX authorization to use them for any purpose.
One of the purposes of implementing Drive-Cam was to use it as a coaching and 30
disciplinary tool against employees. When an “event” triggers Drive-Cam, the event becomes the
basis for “counseling” and “coaching” of the employee. These counseling sessions were
temporarily halted, however, while Ready Mix waits to “see how this [unfair labor practice
proceeding] is sorted out.”
35
Notwithstanding the introduction of the Drive-Cam device into trucks in late August, during
the balance of the year they were not used by Ready Mix to discipline, coach, or otherwise used
with employees. The camera and recording devices were functioning through the fall, recording

11Given my conclusion, I need not reach the Respondent’s contention that Franko was not a
statutory employee but rather, a statutory supervisor under the Act. I note only that, as argued by
the General Counsel, on this issue it is well settled that the party asserting an individual’s
supervisory status—in this case, the Respondent—bears the burden of proof. NLRB v. Kentucky
River Community Care, Inc., 532 U.S. 706, 711–712 (2001) (approving Board’s rule that burden
of proving supervisory status is borne by party claiming that an employee is a supervisor); Croft
Metals, Inc., 348 NLRB 717, 721 (2006).
12I note that each 8(a)(5) violation is also alleged as, and if found is also a derivative violation
of Sec. 8(a)(1) of the Act. Tennessee Coach Co., 115 NLRB 677, 679 (1956), enf’d. 237 F.2d
907 (6th Cir. 1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
JD–52–15
14
incidents that met the designated parameters, but the recordings were kept to management and
not shared or discussed with—or used against—employees.
The Union was not contacted by Ready Mix and alerted to or told about the Drive-Cam
system until the morning of January 20, 2015, when O’Reilly sent an email to the Union’s 5
Secretary-Treasurer Gronek, informing him:
I wanted you to be aware that we are implementing Drive-Cam at the Huntsville
plant. The cameras that have been in the trucks for several months will be going
“live” this Thursday January 22, 2015. Although the Company does not have an 10
obligation under the National Labor Relations Act to inform you of this preplanned
change—I wanted you to be aware as a courtesy. This has been an ongoing
Company wide effort, which started early in 2014, well before a petition was filed in
Huntsville I know you mentioned that you have worked with transportation
companies in the past, so you may already be aware of what Drive-Cam is. If not, 15
here is a brief overview: The Company uses Drive Cams to protect the Company
and the employees from liability claims and to maximize the safe delivery of its
products and services to customers and the general public through training,
coaching and counseling of its drivers. We will be giving an overview of the
process and I have asked for Jerry Davis [the Huntsville employee-union 20
representative] to be included so he understands the process.
Gronek testified that this was the first he had heard anything about Drive Cam in relation
to the Huntsville bargaining unit. Gronek responded later that same day January 20, 2015,
disputing the essentials of O’Reilly’s email. His letter included the following:25
I am in receipt of your correspondence today concerning Drive-Cam.
The Union does not agree that it is ok to implement the cameras and have them
go live, without first meeting to bargain on this subject. Accordingly, I hereby 30
demand to bargain concerning your implementation of the Drive-Cams and their
effects on the terms and conditions of employment of the drivers we rep[resent].
Please contact me immediately to set a meeting for this purpose. . . .
We remind you that any and all changes in . . . the terms and conditions of 35
employment, as well as discipline of bargaining unit employees, subject to your
duty to bargain with Local 402 as exclusive representative[.] We look forward to
hearing from you on all subjects encompassed in such duty, and will be available
and stand willing to meet with you for those purposes.
40
O’Reilly responded to Gronek’s letter in an in an email dated January 26, 2015. In
it, O’Reilly disputed Gronek’s claims about Ready Mix’s duty to bargain and invited
Gronek to sit in on upcoming “coaching/counseling” of drivers. O’Reilly wrote:
After voluntarily notifying Teamsters Local 402 that Ready Mix US was 45
implementing its long-intended plan to turn on the Drive Cams in its vehicles, you
replied and suggested that the Company is obligated to bargain about this issue.
The Company had plans to put Drive Cams in its vehicles long before it was
informed of the organizing drive by the Teamsters. Our drivers were well aware of 50
the plan and, in fact, have signed acknowledgements that the plan would be
JD–52–15
15
implemented. Our notice to the Teamsters was not required by law, but was
provided to the Local as a courtesy.
In light of the history planning to put the Drive Cams in place (which was done
some time ago), it would have been improper for the Company not to have turned 5
the system on. The Company is confident that it was not obligated to bargain
about this subject before acting on its plan. It was within its management rights to
activate this system.
If you have any further questions on this, we can discuss them when we meet on 10
February 25.[13]
Also, we plan to begin coaching/counseling drivers with Drive Cam issues this
week. Do you wish to start sitting in on this? If so, I will have the plant manager
start to coordinate with you when we have a coaching /counseling session.15
Sorry for the delayed response—I was traveling last week.
Gronek responded January 30, and asked O’Reilly for “the schedule of counseling/
coaching sessions so I could attend if my schedule permits.” O’Reilly did not respond on this 20
issue. At trial he testified that facility union representative Davis had been invited to the initial
counseling/coaching sessions “while we were rolling it out” but that at some point Ready Mix had
ceased the counseling sessions and was waiting to see the results of the unfair labor practice
litigation. There is no evidence as to whether or not Davis attended or was included in any
overview of the process or any initial disciplinary sessions. 25
With regard to bargaining over Drive-Cam, Gronek testified that
The Company initially said we don't have to talk to the Union about Drive-Cam.
Then in subsequent negotiating sessions, the Company agreed to negotiate in 30
regards to any impending discipline that arise from the information collected from
Drive-Cam. So there have been numerous discussions.
Analysis
The complaint alleges that on or about January 20, 2015, the Respondent announced the 35
implementation of its Drive-Cam system effective January 22, without prior notice to the Union
and without affording the Union an opportunity to bargain with the Respondent with respect to the
effects of this implementation on employees. The complaint alleges this is violation of Section
8(a)(5) of the Act.
40
Notably, consistent with the complaint, on brief, the General Counsel does not allege a
duty to bargain over the decision to implement the Drive-Cam system—only over the effects of its
implementation on employees, most notably, the effects of using the system for discipline against
employees.
45

13As discussed below, the parties originally agreed to meet February 24 and 25, but ultimately
cancelled the February 25 meeting to avoid bad weather.
JD–52–15
16
The General Counsel is on solid ground here. The statutory duty to bargain “includes a
duty to bargain about the effects on employees” even “of a . . . . decision that is not itself subject
to the bargaining obligation.” See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679–
682 (1981); NLRB v. Litton Financial Printing Division, 893 F.2d 1128, 1133–1134 (9th Cir. 1990),
revd. in part on other grounds 501 U.S. 190 (1991). As the Board explained in The Fresno Bee, 5
339 NLRB 1214, 1214 (2003):
Where changes in employee working conditions constitute such a bargainable
effect, an employer violates Section 8(a)(5) and (1) of the Act by implementing
those changes without bargaining with the union. See Litton, 893 F.2d at 1133–10
1134. Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th Cir. 1995), cert.
granted on other grounds 516 U.S. 963 (1995), affd. 517 U.S. 392 (1996) (some
citations omitted).
An employer violates Section 8(a)(5) when it makes a material and 15
substantial change in wages, hours, or any other term of employment that is a
mandatory subject of bargaining, at a time when the employees are represented
by a union, and in the absence of an impasse in bargaining. Even where a change
resulted directly from a permissible, preelection or managerial decision concerning
the scope of the business, the employer is required to bargain over the change as 20
an effect of that decision. First National Maintenance Corp. v. NLRB, 452 U.S. at
677 fn. 15; Bridon Cordage, 329 NLRB 258, 259 (1999); Litton Financial Printing,
286 NLRB 817, 819–821 (1987), enfd. in relevant part 893 F.2d 1128 (9th Cir.
1990), cert. denied in relevant part 498 U.S. 966 (1990). This is so because in
most such situations “[t]here are alternatives that an employer and a union can 25
explore to avoid or reduce the scope of the [change at issue] without calling into
question the employer’s underlying decision.” Bridon Cordage, supra.
339 NLRB at 1214 [Board’s bracketing].
30
Moreover, the duty to bargain over the effects of a decision that is nonbargainable is not
limited to after-the-fact discussion. See Berklee College of Music, 362 NLRB No. 178, slip op. at
2 fn. 2 (2015) (“The Board’s general rule is that effects bargaining must occur before
implementation for bargaining to be meaningful”); Kajima Engineering & Construction, 331 NLRB
1604, 1620 (2000) (as with decisional bargaining, effects bargaining requires an employer to 35
provide the union with prior notice of bargainable issues before they occur); Geiger Ready-Mix
Co. of Kansas City, 315 NLRB 1021, 1021 fn. 8 (1994). See Oklahoma Fixture, 314 NLRB 958,
961 fn. 7 (1994) (once employer has decided to implement a change in terms of employment,
time is ripe for effects bargaining), aff’d in relevant part, 79 F.3d 1030 (10th Cir. 1996).
40
Thus, the Respondent had a statutory obligation, which it ignored, to provide the Union
notice and an opportunity to bargain over the effects of its decision to implement Drive-Cam
before it went “live” with the cameras and began accumulating footage for use in disciplinary
events.
45
In this case, while the decision to implement Drive-Cam is not at issue, the
implementation of this new technology—at least once the Respondent went “live” with Drive-Cam
and began disciplining and/or counseling employees based on “events” recorded by Drive-Cam—
had a direct effect on the terms and working conditions of employees. The penalties for incidents
based on Drive-Cam events, the methods of challenging the Drive-Cam-based discipline, and its 50
very use as part of disciplinary counseling and discipline are all effects of the implementation of
Drive-Cam, and as such, are mandatory subjects of bargaining. Obviously, employee discipline
JD–52–15
17
is a core term and condition of employment, and Drive-Cam’s use as a disciplinary tool is a
bargainable subject. And, just as obviously, the use of Drive-Cam to abet the disciplining and
counseling employees could be carried out in an infinite number of ways—in other words, this is
not a case where the disciplinary use to which the Employer puts Drive-Cam is an “inevitable
consequence” of its implementation. Accordingly, the disciplinary issues are bargainable. The 5
Fresno Bee, supra at 1215.
In this regard, I reject the Respondent’s argument that, because the Employer already
disciplined employees for unsafe driving, the use of Drive-Cam to abet discipline “does not
constitute a change in working conditions.” It does. And it does, in precisely the same way and 10
for the same reasons that the Board and courts have repeatedly held that an employer’s adoption
of surveillance cameras to view employees at work is a change in working conditions.
Thus, in Colgate-Palmolive Co., 323 NLRB 515 (1997), the Board found that the
installation of hidden surveillance cameras in the work place was a mandatory subject of 15
bargaining based on the Supreme Court’s description in Ford Motor Co. v. NLRB, 441 U.S. 488,
489 (1979), of “mandatory subjects of bargaining as such matters that are ‘plainly germane to the
‘working environment’” and “not among those ‘managerial decisions, which lie at the core of
entrepreneurial control.’” (quoting Fibreboard Corp. v. NLRB, 379 U.S., 203, 222–223 (1964)
(Stewart J., concurring). The Board determined in Colgate-Palmolive that surveillance cameras 20
are “germane to the working environment” and “analogous to physical examinations, drug/alcohol
testing requirements, and polygraph testing, all of which the Board has found to be mandatory
subjects of bargaining. They are all investigatory tools or methods used by an employer to
ascertain whether any of its employees has engaged in misconduct.” 323 NLRB at 515. The
Board held that such changes in employer methods have “serious implications for its employees’ 25
job security.” Id. at 515–516. At the same time, the Board found that the use of such devices by
an employer “is not entrepreneurial in character, is not fundamental to the basic direction of the
enterprise, and impinges directly upon employment security . . . [but] in no way touches on the
discretionary ‘core of entrepreneurial control.’” Id. Accordingly, the Board held that the
installation of surveillance cameras constitute a change in working conditions and are a 30
mandatory subject of bargaining. Id.; Anheuser-Busch, 342 NLRB 560 (2004), enf’d. in relevant
part, 414 F.3d 36 (D.C. Cir. 2005); Genesee Family Restaurant, 322 NLRB 219, 225 (1996)
(finding 8(a)(5) violation: “There is no question about the significance to employee working
conditions of the mid-November installation of video cameras to monitor employee conduct in
their workplace; in fact, Respondent uses a tape from the videos to buttress its disciplinary action 35
against an employee who is discharged”), enf’d. mem. 129 F.3d 1264 (6th Cir. 1997); Nortech
Waste, 336 NLRB 554, 568 (2001) (“no doubt” that unilateral installation of cameras in work
areas violated 8(a)(5)). Accord, National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir. 2003)
(accepting as “conclusive” the Board’s view that surveillance cameras in the workplace are a
mandatory subject of bargaining).40
Here, the effects of the Respondent’s Drive-Cam implementation are equally “germane to
the working conditions”—in precisely the same way as continuous surveillance cameras: it affects
the disciplinary prospects of employees on the trucks, who now may find a series of incidents
recorded while they are at work in company vehicles that will be used in meting out discipline and 45
potentially affect their future employment.
Respondent’s protestations that continuous surveillance cameras are not the same as
Drive-Cam cameras—openly installed in trucks and set by the Respondent to record only
“triggering” incidents (accidents, sharp, turns, sudden accelerations, etc.)—argues a distinction50
without significance. At bottom, Drive-Cam is focused on employee behavior and conduct. It
views and records when triggered to do so based upon parameters set by the employer. Thus,
JD–52–15
18
the presence of the Drive-Cam cameras creates new circumstances, in the discretion of the
employer, under which employees’ actions may result in discipline, or, to the same point, avoid
discipline if an accident is revealed to have been someone else’s fault. Just like a surveillance
camera, it is used as an “investigatory tool[ ] or method[ ] . . . to ascertain whether any of its
employees have engaged in misconduct.” Colgate-Palmolive, supra at 515. At the same time, it 5
“is not entrepreneurial in character, is not fundamental to the basic direction of the enterprise.” Id.
The use of Drive-Cam causes a change in terms and condition of employment, and the effect of it
on the terms and conditions of employment—such as discipline—is a mandatory subject of
bargaining.
10
As noted above, the Government is not contending that Ready-Mix was required to
provide the Union an opportunity to bargain over the decision to implement Drive-Cam. But
Drive-Cam is a mandatory subject of bargaining, and the effects of its implementation on
employee discipline is a subject on which the Respondent was required to provide notice and an
opportunity to bargain.1415
Finally, I note that the Respondent argues (R. Br. at 25) that Gronek “admitted” that the
Respondent “has offered to negotiate regarding any such discipline.” It bases this contention on
Gronek’s testimony that, after contending that “we don’t have to talk to the Union about Drive-
Cam, [t]hen in subsequent negotiating sessions, the Company agreed to negotiate in regards to 20
any impending discipline that arise[s] from the information collected from Drive-Cam.” (Tr. 177).
This is inadequate. In the first place the duty to bargain is broader than a duty to bargain
only over “impending discipline.” The Union is entitled to a meaningful opportunity to bargain
over the disciplinary rules to be applied to Drive-Cam incidents as well as over Drive-Cam’s use 25
in the disciplinary system. As referenced above, the duty to bargain over the effects of Drive-
Cam’s implementation is not limited to after-the-fact discussion of already imposed discipline or
after-the fact discussion of how Drive-Cam should be used in the disciplinary system. See
Berklee College of Music, supra, at 2 fn. 2; Kajima Engineering & Construction, supra at 1620;
Geiger Ready-Mix Co. of Kansas City, 315 NLRB at 1021 fn. 8; Oklahoma Fixture Co., 314 NLRB 30
at 961 fn. 7 (1994).
But equally to the point, an employer cannot satisfy its statutory duty to bargain by
expressing a willingness to discuss a bargainable subject while maintaining that it has no duty to
bargain. This amounts to a pallid offer of ersatz bargaining in which the employer suffers the 35
union’s demand for discussion but reserves the right to stop talking whenever it chooses. If the
statutory duty to bargain is in effect, this approach is unlawful. San Diego Cabinets, 183 NLRB
1014, 1020 (1970) (rejecting employer’s contention that because it informed union of its
willingness to meet and discuss matters it had not refused to bargain, where employer
consistently maintained that it had no duty to bargain: “its professed willingness to discuss this 40
unlawful position does not excuse the violation”), enf’d. 453 F.2d 215 (9th Cir. 1971). See, Mi
Pueblo Foods, 360 NLRB No. 116, slip op. at 10, 17 (2014) (effects bargaining violation for
employer to state that while it had no duty to bargain it was willing to “discuss” a process for
implementing layoffs).

14And it is not, as the Respondent seems to think, sufficient or even ameliorating, for it to
provide the Union an opportunity to be present at disciplinary events arising out of Drive-Cam-
recorded events. See, R. Br.at 25 (“In addition, Respondent has always sought to include the
Union in any coaching or discipline arising out of any unsafe driving practices recorded by
Drive-Cam”).
JD–52–15
19
This is what the Respondent did here, after implementation of Drive-Cam. No matter what
discussions regarding Drive-Cam and discipline in which it ultimately engaged, the Employer
announced and began the use of Drive-Cam for disciplinary purposes without notice and without
accepting an obligation to bargain over the effects of the Drive-Cam decision, even in the face of 5
Union demands that it do so. This is a violation of Section 8(a)(5) of the Act, as alleged.
2. The Union’s information request concerning Drive Cam
As discussed above, on January 20, 2015, O’Reilly notified Gronek about the 10
implementation of Drive-Cam. Gronek’s same-day response included a request for information
regarding Drive-Cam. In reference to a requested meeting to bargain over Drive-Cam, Gronek’s
letter stated:
In connection with such meeting, please provide us with the following information:15
1 The identity of the manufacturer;
2 The cost of the implementation;
3 The method of documentation of the images retrieved by the cameras;
4 When how and if the videos will be reviewed;20
5 Whether the cameras will be used for disciplinary purposes; and
6 Any instruction or operation manuals for use with the cameras.
7 Is Huntsville the only location?
Thank you in advance for your prompt response.25
As discussed above, O’Reilly responded to Gronek in an email dated January 26, 2015.
The response did not contain any of the requested information. The letter did not mention the
information request contained in Gronek’s letter, but stated that if there were “further questions on
this, we can discuss them when we meet [for collective bargaining] on February 25.” 30
In his testimony, O’Reilly discussed, albeit in vague terms, often responding with non
sequiturs, three ways in which he claimed that Ready Mix provided the Union with the information
contained in the January 20 information request. These three ways were through email, through
phone conversations, and through discussions at the bargaining table.1535
The vagueness and non sequiturs did not, to my mind, reflect dissembling, and not so
much a lack of recollection, but the fact, as quickly became evident from O’Reilly’s testimony, that
there was never any purposeful, distinct, dedicated, much less comprehensive response made by
the Respondent to the Union’s information request. Rather, the information request was largely 40
ignored and to the extent information was supplied, it trickled out, provided incidental to
interactions between the parties that occurred over the course of many months.
Thus, with regard to a question (on direct examination) as to which items of the
information request he discussed with the Union Representative Gronek by phone, O’Reilly 45
stated that “to the best of my knowledge, we touched on each of them by phone in some way.”
Then, asked by his counsel how he “touched by phone” regarding the identity of the manufacturer

15O’Reilly’s testimony concerned items 1, and 3–7 of the Union’s information request, as do
my references to the information request throughout the remainder of this decision. This is
because the General Counsel alleges a violation with regard to the Employer’s response to those
requests, but not to the Employer’s response to item 2.
JD–52–15
20
(item #1), O’Reilly responded: “Again, I think part of the conversation was that this is a CEMEX-
wide system. I remember part of the conversation being about this is exactly the same thing
we’re using in California, where we have Teamster contracts.” Regarding the method of
documentation of the images retrieved by the Drive-Cam cameras (item #3), O’Reilly answered,
“A similar thing, what—how we would be reviewing the images record. Again, I think I referenced 5
back to we’re using this in California in the Teamsters contracts.” Asked what was discussed by
phone regarding how and if the videos reviewed, O’Reilly answered “Same lines, it was a
discussion about how they would be reviewed and that they’re being used in other parts of the
country, specifically that the Teamsters have [it] already in a contract with CEMEX.”
10
This went on in similar fashion—with heavy reliance by O’Reilly on the assertion that
CEMEX was using Drive-Cam with a group of Teamsters employees in California. In summary,
O’Reilly asserted that these issues have been “off-and-on conversations” with Gronek “since
approximately I sent that e-mail of that notice.”
15
O’Reilly then answered a series of questions about the Employer’s furnishing of the
requested information at negotiating sessions. Asked if he provided information regarding the
identity of the manufacturer during the February 24 bargaining session, O’Reilly stated “We talked
about, again, you know, to put context—the answer is yes, but to put context to it, at these
sessions we had the International rep, Mr. Helfer [who was from California], there, so yeah, we 20
talked about it. Again it’s the same system we’re using in California, so yes, we talked about it.”
Asked if he provided information on the method of documentation of the images retrieved by the
cameras during the February bargaining session, O’Reilly answered, “Again, yes . . . . we talked
about how the images are stored on the camera, what they’re used for, and again we referenced
back to we’re using this in California, and Stu [Helfer] was there, and we talked about it a little bit 25
more.” Asked if he provided information during the February bargaining session on when and
how and if the videos will be reviewed, O’Reilly stated “We discussed just that, how the videos
were going to be reviewed. At this sessions, what sticks out the most is that we talked about I,
and at that time Jerry Davis was still the representative of the Union, and Mr. Davis made the
statement to everyone in the room that what a great tool this is, that he has seen it in action, he 30
supports it, so I mean, I know that was talked about.” Asked if, during the February bargaining
session, the parties discussed whether the cameras would be used for disciplinary purposes,
O’Reilly answered “In some degree, yes. . . . Just how it could be applied, because the question
came up as far as what would happen. Again, there was some discussion about the fact we had
this in California. And I keep referencing California because their representative there was from 35
California, so he was familiar with the system there.” O’Reilly added that he told the Union “there
would be—it’s a coaching tool, it’s a counseling tool, but also there are—there can be disciplinary
discussions attendant to it.”
The Employer’s counsel asked O’Reilly if he provided information in the February 40
bargaining session as to whether Huntsville was the only location that had Drive-Cam. O’Reilly
responded, “Yeah. Again, I mean, we established that, you know, just because we were talking
about California, you know, they had a representative from the International there. He was
familiar with it.” O’Reilly stated that he told the Union “something” like that this was “a nationwide
initiative” by CEMEX.45
O’Reilly was asked about whether the parties discussed any instruction or operation
manuals during the February meeting. O’Reilly answered “Yes. We talked about that again. . . .
I guess I was probably confused by the question because we got it in California, it’s the same
thing, it’s the same system used the same way. But to be fair, they wanted more information, and 50
they asked me if I would get some more information on the system itself.”
JD–52–15
21
As to the request for the Drive-Cam manual, on March 10 the Union followed up with a
letter from union counsel Sam Morris to Ready Mix’s counsel Silbergeld:
During our last meeting, you pleaded with the Union to withdraw its charge on5
the Drive -Cam issue. You pointed out that Jerry Davis, who you have now
sought to bar from our meetings, wasn't opposed to the program. We said we
would consider it, but pointed out that you had implemented the program
postelection without notification or bargaining.
10
You said you would provide us with the manual for the product. We don't have it
yet. Have you forgotten?
Silbergeld responded that day, stating:
15
The Company is formally responding to your request for detailed information
regarding the Drive-Cam system which, as you know, has been adopted at other
facilities where Teamster locals represent bargaining units and the implementation
of which employees at the Huntsville, Alabama acknowledged before the
Company had knowledge of any union organizing activity and before the Union 20
filed it petition.
Accordingly, we again ask that the Drive-Cam charge be dismissed.
The email also provided, without further comment, a hyperlink to a “frequently-asked-25
questions” (FAQ) page maintained by the manufacturer of the Drive-Cam system. O’Reilly
testified that he sent the link to Silbergeld to provide to the Union, in response to the Union’s
request during the February 24 bargaining session. The printout of this FAQ was received into
evidence as Respondent’s Exh. 48. It is from the webpage of the manufacturer of Drive-Cam and
a variety of information on the system may be found on the FAQ page and the website generally. 30
Moreover, Gronek testified that he assumed that the website was maintained by the manufacturer
of Drive-Cam. It does not, however, contain information on how Ready Mix planned to (or was)
using the Drive-Cam to review video or discipline/counsel employees.
O’Reilly was asked about whether information responsive to the items requested by the 35
Union on January 20, was provided during the April 14 bargaining session. Again, O’Reilly
answered yes on some of the items, stating vaguely that “[i]t was brought up again,” and
repeatedly referencing that one of the union’s bargainers, Helfer, was familiar with CEMEX’s
California operations where Drive-Cam was already in use. O’Reilly said that he didn’t think he
provided any “actual information” on disciplinary uses of the cameras, adding “again, the same 40
context,” which was a shorthand reference to the fact that the system was being used in
California and at least one union bargainer knew how it worked there. As to information about the
instructional manual, O’Reilly said that “was probably when we brought up the [internet] link,
because that’s what we were hoping was going to be sufficient.” O’Reilly stated that he believed
it had been established at this point that this system was not unique to Huntsville. More 45
generally, according to O’Reilly, “the Union didn’t have an interest in talking about” Drive-Cam at
this meeting.”
On May 14, O’Reilly emailed Gronek, with Gronek’s January 20 information request email
attached, and stated: “Can you please let me know what information has not yet been provided? 50
I thought I had given you most of the information you requested below already, but if I missed
something will you let me know? I will then start gathering the information for our next session in
JD–52–15
22
June.” Gronek responded to this email the next day by asking O’Reilly to “give me a call in the
office when you have a minute.”
Gronek testified that as of May 14, with the exception of the link provided March 10,
Ready Mix had not provided any information responsive to the request.5
In the ensuing phone conversation between Gronek and O’Reilly, O’Reilly testified that
“one of the things that [Gronek] said they wanted to see more of was the way in which discipline
would be applied, if there was some sort of document or something we could produce, and
wanted more information relevant to Drive-Cam.”10
In response, in the June 8 bargaining session, Ready Mix provided the Union with a 22-
page power point “Overview of the Drive-Cam Program,” put together by the manufacturer, as
well as a disciplinary guideline for managers dated October 22, 2013, and created by CEMEX for
use in its Florida region. This sheet gave a list of driving violations and suggested discipline for 15
initial and multiple offenses.
At the June 8 meeting, O’Reilly estimated that the parties talked about Drive-Cam for
about an hour. At the meeting, the Union reiterated its request for a manual covering Drive-Cam.
This triggered an effort by O’Reilly to obtain a technical manual on Drive-Cam from the 20
manufacturer. On June 11, O’Reilly asked CEMEX’s safety department to attempt to obtain such
a manual from the manufacturer, but according to the email correspondence entered into
evidence (see R. Exh. 13) the manufacturer declared that it did not “have an actual manual that
we can share.” It did, however, offer to conduct a phone call with union representatives to help
answer questions. On June 15, O’Reilly wrote to Gronek. He stated: 25
I have spoken to our representatives from Drive Cam about getting the technical
manual we discussed during negotiations. They are willing to get on a conference
call to discuss and answer any questions related to the technical operation of the
system.30
Can you please let me know when you would like me to set up this phone call?
The next day, June 16, O’Reilly wrote again to Gronek stating:
35
Our account manager with Drive Cam indicated they did not have a manual they
would provide. I suspect this is because a lot of the information contained is
proprietary. They did indicate they would answer any specific questions about the
system and its operation.
40
That being said, is there a date/time that works best for you to schedule the call?
Gronek responded the next day, June 16:
Thank for your offer of a "Q and A" session with the purveyors of Drive-45
Cam.
We really feel that our request for a copy of the manual is appropriate and
important, especially since you implemented the device unilaterally and at first
refused to even talk about it. We would be glad to have a "Q and A" session with 50
the manual in hand.
JD–52–15
23
Please let us know.
For his part, Gronek admitted that he and O’Reilly had had numerous discussions on the
phone regarding Drive-Cam, but that these predominantly regarded O’Reilly’s contention to the
Union that Ready Mix had no obligation to bargain with the Union before “implementing its long-5
intended plant to turn on the Drive Cams in its vehicles” (GC 17; Tr. 175). Gronek stated that
most of the conversations involved Ready Mix asking him to “drop these [unfair labor practice]
charges.”
Gronek testified that “[w]e’ve had discussions across the table where in generalities the 10
Company has tried to explain how Drive-Cam works. For instance, Gronek testified that in
negotiations in June Ready Mix explained that
“there's a balancing mechanism in [the Drive-Cam device], that if it sways too far
one way or another, it triggers the camera, that there's a camera in the cab, that 15
there's a camera on the front, there's a camera on the back, that . . . I think Charlie
explained it at one of our sessions, that . . . [Ready Mix] . . . tells Drive-Cam what a
qualifying event is. . . . I think Ron or Charlie, one of the guys said in negotiations,
if we at every event got an e–mail, it would send an e–mail to the Company
notifying them of anything, maybe a strong braking or something like that, that 20
there's certain levels that trigger a qualifying event in which the Company is
notified by Drive-Cam. That came through discussions and negotiations across the
table [16]
Other than this, while agreeing that Drive-Cam was discussed in some manner at each 25
bargaining session, Gronek’s testimony emphasized the Employer’s repeated requests that the
unfair labor practice charges over Drive-Cam be dropped. Gronek agreed that there had been
discussion at the table “in general terms” about “what triggers the cameras on and off.” He
agreed that he “assumed” from the internet FAQ link sent by Silbergeld to union counsel that Lytx
was the manufacturer. He also agreed that he received the copy of the manufacturer’s 22-page 30
power point brochure on Drive-Cam, provided June 8, which contains information relevant to his
information requests. He admitted, after some prompting, that “[p]robably during negotiations,
discussions, it was said that you got Drive-Cam in other locations.” He admitted he was given the
Florida policy on use of the Drive-Cam for discipline on June 8, and he was invited at one point to
disciplinary meetings, although it is unclear whether he was invited to any particular meeting that 35
was ever held. Gronek maintained that he still did not know “if you’re going to discipline, how
you’re going to discipline. There’s all kind of questions, but the Company has refused to discuss
it until recent negotiation sessions.” Gronek maintained that no information had been provided
regarding “when and how the videos will be reviewed.” Gronek testified that with regard to the
method of documentation of images retrieved by the cameras, he did not know “How long the 40
images are catalogued, who has access to them, what triggers a qualifying event in the

16I note that I discredit and do not accept Gronek’s mistaken testimony that he thought that
Ready Mix told the Union in the April negotiating session that it could not obtain a manual from
the Drive-Cam manufacturer. As the record demonstrates, O’Reilly did not seek the manual until
June 11, after the Union’s reiteration of its request during the June 8 meeting. It is not plausible
that O’Reilly or Ready Mix would have or could have conveyed to the Union the inability to obtain
the manual until sometime after June 11. I note that Gronek, who testified about events at
various bargaining table without the aid of notes, stated that he could not “be totally positive”
about whether the April 14 session was, as he asserted, the session in which Ready Mix said that
it could not obtain the manual. I find that he was mistaken.
JD–52–15
24
Company’s eyes,” and “who makes the determination whether or not it is a triggering event in
regards to Drive-Cam.”
Analysis
5
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to furnish the Union with information about Drive-Cam requested in Gronek’s
January 20, 2015 email to O’Reilly.
"An employer's duty to bargain includes a general duty to provide information needed by 10
the bargaining representative in contract negotiations and administration." A-1 Door & Building
Solutions, 356 NLRB No. 76, slip op. at 2 (2011); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–
153 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Pulaski Construction
Co., 345 NLRB 931, 935 (2005). "Generally, information concerning wages, hours, and other
terms and conditions of employment for unit employees is presumptively relevant to the union's 15
role as exclusive collective-bargaining representative. By contrast, information concerning extra-
unit employees is not presumptively relevant; rather, relevance must be shown." A-1 Door &
Building Solutions, supra, slip op. at 2 (citations omitted).
Contrary to the position of the Respondent, I have found, as discussed above, that Drive-20
Cam constitutes a term and condition of employment for unit employees and a mandatory subject
of bargaining (notwithstanding that, due to the timing of the decision to implement, there was no
duty to bargain over that). As such, requests for information concerning it are presumptively
relevant. The Union need not show or prove its need for the information. National Steel Corp.,
335 NLRB 747, 747–748, 752 (2001) (union’s request for “all information” concerning surveillance 25
cameras was presumptively relevant: “It follows from the Board’s conclusion in Colgate-
Palmolive, that . . . information regarding these cameras is relevant to the Union’s discharge of its
statutory duties”), enf’d. 324 F.3d 928 (7th Cir. 2003); Tenneco Automotive Inc., 357 NLRB No.
84 (2011) (information about decision to install surveillance cameras presumptively relevant),
enf’d. in relevant part, 716 F.3d 640 (D.C. Cir. 2013). 30
“The duty to furnish information requires a reasonable good-faith effort to respond to the
request as soon circumstances allow.” Monmouth Care Center, 354 NLRB 11, 52 (2009),
reaffirmed, 356 NLRB No. 29 (2010); Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993)
("[I]t is well established that the duty to furnish requested information cannot be defined in terms 35
of a per se rule. What is required is a reasonable good faith effort to respond to the request as
promptly as circumstances allow"). "In evaluating the promptness of the employer's response,
'the Board will consider the complexity and extent of information sought, its availability, and the
difficulty in retrieving the information.'" West Penn Power Co., 339 NLRB 585, 587 (2003)
(quoting Samaritan Medical Center, 319 NLRB 392, 398 (1995)), enf’d. in relevant part 394 F.3d 40
233 (4th Cir. 2005). Like a flat refusal to bargain, "[t]he refusal of an employer to provide a
bargaining agent with information relevant to the Union's task of representing its constituency is a
per se violation of the Act." Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter &
Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enf’d. 603 F.2d 1310 (8th Cir. 1979).
45
”An unreasonable delay in furnishing such information is as much of a violation of Section
8(a)(5) of the Act as a refusal to furnish the information at all.“ Valley Inventory Service, 295
NLRB 1163, 1166 (1989). “Absent evidence justifying an employer's delay in furnishing a union
with relevant information, such a delay will constitute a violation of Section 8(a)(5) inasmuch
‘as the Union was entitled to the information at the time it made its initial request, [and] it was 50
Respondent's duty to furnish it as promptly as possible.’” Woodland Clinic, 331 NLRB 735, 737
(2000) (Board’s brackets), quoting, Pennco, Inc., 212 NLRB 677, 678 (1974).
JD–52–15
25
Here, on January 20, 2015, the Union requested information concerning Drive-Cam—who
makes it, how it works, where is it utilized by the Respondent, and how will it be used in
relationship to discipline. The requests were basic, and for the most part simple to answer in 5
some reasonable fashion. Moreover, with the exception of the manual, the information was
readily available to or obtainable by the Respondent.17
However, the Respondent made no effort at all to provide the information in advance of
the first negotiating session, which was over one month away. Indeed, O’Reilly’s response to 10
Gronek on January 26, did not even mention the information request. While over time, in some
cases many months, most of this basic information was eventually conveyed, at no time did the
Respondent ever provide a coherent response to the Union’s initial information request. As
reference above, to the extent information was supplied, it trickled out, provided incidental to
conversations between the parties that occurred over the course of many months. As was 15
evident from O’Reilly’s testimony, notwithstanding a dedicated effort to lead him into it, he could
not say with credible specificity if, when, or what he provided to the Union.18
Another tactic of the Respondent, involved reference to the assertion that Drive-Cam had
been adopted at other facilities where Teamsters represented employees. Silbergeld mentioned 20
this in his March 10 letter to union counsel. O’Reilly repeatedly referenced it in his testimony,
remarking over and over, in remarkably nonresponsive fashion, that one of the union negotiators,
Helfer, had experience with Drive-Cam from Teamsters he represented in California. O’Reilly
retreated to this response often when seeking to respond to questions about what information
was provided to the Union. The suggestion is that the Union could obtain whatever information it 25
wanted from Helfer or the Teamsters California affiliates. However, it is well-settled that “the
Union’s ability to obtain the requested information elsewhere does not excuse the Respondent’s
obligation to provide the information.” Piedmont Gardens, 362 NLRB No. 139, slip op. at 6
(2015); Finley Hospital, 362 NLRB No. 102, slip op. at 25–26 (2015); Kroger Co., 226 NLRB 512,
513 (1976) (“The union is entitled to an accurate and authoritative statement of facts which only 30
the employer is in a position to make”). In any event, several of the requests were specific to the
use that this Employer intended for Drive-Cam at Huntsville.

17For convenience, I repeat the requested items which are alleged as part of the unfair
labor practice case:
1. The identity of the manufacturer;
3. The method of documentation of the images retrieved by the cameras;
4. When how and if the videos will be reviewed;
5 Whether the cameras will be used for disciplinary purposes; and
6 Any instruction or operation manuals for use with the cameras.
7 Is Huntsville the only location?
18O’Reilly’s conclusory testimony about any information he claims he provided—except where
buttressed by documentary evidence—is not credited. It is not creditable because it is the
product of leading questioning and, independently, the conclusory tenor of the testimony
indicated to me that O’Reilly has no idea if or when he provided the requested information. It was
not reliable testimony on these issues. See, G4S Regulated Security Solutions, 362 NLRB No.
134, slip op. at 2 (2015) (refusing to rely on “testimony [that] consists chiefly of conclusory
responses to leading questions by counsel”); Hedison Manufacturing Co., 249 NLRB 791, 811
(1980) (discrediting testimony as vague, conclusory, and unsupported by fact), enf’d. 643 F.2d 32
(1st Cir. 1981). I credit Gronek’s testimony on these issues.
JD–52–15
26
All in all, the Respondent’s “response” to the Union’s information request was wholly
inadequate to satisfy the Respondent’s statutory duty to provide information. That duty requires
“a good-faith effort to respond to the request as circumstances allow.” Here, there appeared to
be no specific effort to respond. Rather, the information request was ignored, or met with 5
piecemeal responses over time, incidental to conversations that took place in bargaining and in
other exchanges. Written documentation arguably responsive to some of the information
requests was not provided until March and sometimes June, months after the request was made.
Given the basic nature of the requests, the Respondent has clearly violated its statutory duty to
“respond to the request as promptly as circumstances allow.” Good Life Beverage Co., 312 10
NLRB 1060, 1062 fn. 9 (1993).
More difficult is discerning, as a factual matter, when and what information the
Respondent did provide. In very large part, the difficulty is attributable to the Employer’s
indifferent attitude to the information request. Information that was provided was provided 15
incidentally, without record, and entirely piecemeal, and vaguely recalled. The Respondent is not
being held to a difficult standard here—a rudimentary but adequate response to the union’s
questions could have been made within days, and there would be no violation. At that point if the
Union sought further information it would have been incumbent upon it to follow up. But, as
discussed, the Respondent essentially ignored the information request for many months. 20
However, because some information was provided—in dribs and drabs over time—it makes it
difficult to determine if or when a particular request was satisfied. Nevertheless, union witness
Gronek agreed that information responsive to some of the information requests was, eventually,
furnished.
25
More specifically, with regard to item 1, (the identity of the manufacturer), this appears to
have been provided for the first time on March 10, when Silbergeld sent union counsel an internet
link to an FAQ page maintained by the manufacturer of the Drive-Cam system. Gronek gleaned
or “assumed” from this the identity of the manufacturer. Although I do not condone this method of
responding to information requests, I find that Gronek’s assumption was reasonable, and I find 30
that item 1 of the Union’s information request was satisfied March 10.
Item 3 requests information on the “method of documentation of the images retrieved by
cameras.” I confess to not understanding exactly what this means.19 Gronek testified that with
regard to this request, he had never received information regarding “[h]ow long the images are 35
catalogued, who has access to them” and other issues pertinent to a request that seems to go to
the security and maintenance of images captured by Drive-Cam. He did receive, on June 8, the
22-page power point “overview” of Drive-Cam, which the General Counsel admits on brief (GC
Br. at 24) constitutes a partial response to this inquiry. In addition, the FAQ provided March 10
contains some information indicating that the Drive-Cam company maintains the photos (and 40
other triggering event information) online for a specified period of time. Given the vagueness of
this request, I believe that the June 8 power point along with the March 10 FAQ qualifies, as
responsive, and I find that if it was unsatisfactory, the Union should have stated so. By all
evidence, it did not, therefore I find that that the Respondent satisfied its obligation as to this
request on June 8.45

19The Respondent did not evince any lack of understanding of this request. In any event, the
appropriate and required response to an ambiguous information request is not to ignore it but to
ask for clarification. Mission Foods, 345 NLRB 788, 789 (2005) (employer cannot simply refuse
to comply with an ambiguous or overbroad information request, but must request clarification and
comply with the relevant portions); Keauhou Beach Hotel, 298 NLRB 702 (1990).
JD–52–15
27
Item 4 requests information about “[w]hen how and if the videos will be reviewed.” Gronek
maintained that this was never provided. I see no evidence in the record that it was. The FAQ
and power point suggest some of the capabilities for review, but the Respondent’s plans for
review are its own. I credit Gronek’s statement that this was not provided. Again, I recognize that 5
there is a vagueness to this request. To my mind, any good faith effort on the Respondent’s part
to answer this question would have been satisfactory given the breadth of the question. But there
is none on the record.
Item 5 asks “Whether the cameras will be used for disciplinary purposes.” While Gronek 10
maintained that he still has many questions on the details of the Respondent’s discipline plans,
the basic question presented by the pleadings was answered. Indeed, the initial January 20
announcement regarding Drive-Cam states that the Respondent intends “to begin coaching/
counseling drivers with Drive Cam issues” (which, as demonstrated by an employee disciplinary
form put in evidence, is part of the disciplinary procedure at CEMEX facilities (R. Exh. 45)). In 15
addition, in an exception to his largely conclusory testimony, O’Reilly testified that at the February
24 bargaining session he told the Union, with regard to Drive-Cam, ““there would be—it’s a
coaching tool, it’s a counseling tool, but also there are—there can be disciplinary discussions
attendant to it.” It seems plausible that it would have been discussed February 24, as O’Reilly’s
initial announcement mentioned it. I find that the Employer told the Union that the cameras would 20
be used for disciplinary purposes beginning January 20 (even before the request).
Item #6 seeks “[a]ny instruction or operation manuals for use with the camera.” As to this
item, the record shows that after many months, and a follow-up inquiry by the Union, the
Respondent initiated a search for a manual but could not obtain a copy. It conveyed this to the 25
Union on June 16. There is no obligation to provide what you do not have. This information
request was satisfied on June 16.
Finally, item #7 asks, “Is Huntsville the only location?” Gronek admitted that “[p]robably
during negotiations, discussions, it was said that you got Drive-Cam in other locations.” O’Reilly’s 30
testimony constantly returned to his claim that he told the Union that this was the same system
that CEMEX was using in California with other Teamster locals, in (undated) phone calls and in
the February 24 meeting. This answer was deployed nonresponsively when he was asked if he
provided responses to the various items on the information request. However it is not
nonresponsive as to Item #7. Although it is not a thorough or particularly informative response, 35
the question itself is a limited one. I think it more likely than not that Respondent informed the
Union that Huntsville was not the only location at which Drive-Cam was used on February 24.
In summary I find that item 1 was provided March 10; item 3 was provided June 8; item 4
was not provided; item 5 was provided even before the information request, in the initial January 40
20 email to the Union and then again at the February 24 meeting; item 6 was not available to the
Union and this was conveyed June 16; and item 7 was satisfied by February 24.
As to item 4, the Respondent’s failure to provide the requested information about video
review is a straightforward failure to provide requested and relevant information as set forth in the 45
complaint.
As to item 5, I dismiss this allegation. Although it is a little unusual to find that the
Respondent provided information even before it was requested, a very basic answer to a very
basic information request had just been provided to the Union by the Respondent, only hours 50
before the request was made. I do not find a failure to provide requested information in these
circumstances.
JD–52–15
28
As to the remaining 4 items, they were (with the exception of item 6), in time, provided.
The issue is whether they were timely provided. If not then then the question is whether the delay
was reasonable, because, as discussed above, “[a]n unreasonable delay in furnishing such
information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the
information at all.“ Valley Inventory Service, 295 NLRB at 1166; Woodland Clinic, 331 NLRB at 5
737; Pennco, Inc., 212 NLRB at 678.20
As referenced above, the Respondent had a duty to provide the requested information as
promptly as reasonably possible. It certainly did not do that with any of this information. All of
this information was readily available and the requests—general as they were—were capable of 10
being answered in some form in days (if not hours). O’Reilly responded to Gronek’s January 20
email after six days, on January 26. He apologized for the delay, indicating that he had been
traveling.
Had he then promptly provided the requested information—or even referenced it and 15
explained why he could not provide it immediately—we might well have a different case. The
burdens of travel might well constitute a reasonable limitation on the Respondent’s ability to
provide the information sooner. But I need not decide that issue because O’Reilly did not
mention the information request in his January 26 response. Instead, he defended the
Employer’s “rights to activate” Drive-Cam and told Gronek, “If you have any further questions on 20
this, we can discuss them when we meet on February 25.”21

20At the close of the hearing (Tr. 360-361) the General Counsel requested—“to the extent you
would not consider unreasonable delay assumed within the [complaint] allegation as it’s
worded”—to move to amend the complaint to include allegations of unreasonable delay. The
Respondent objected to this motion. I asked the parties to brief the issue. However, my review
indicates that Board precedent does not require separate complaint allegations to cover these
closely related violations. Care Manor of Farmington, 318 NLRB 330 (1995) (where complaint
alleged that employer, since date of union's request, "has failed and refused to furnish . . . the
information requested," employer acted unlawfully "[b]y its delay in providing some of the
information and its refusal to provide the rest"); Shaw’s Supermarkets, 339 NLRB 871 (2003).
This only makes sense. The statutory duty requires a party to timely furnish requested relevant
information. The finding that an employer unlawfully delayed furnishing requested information
necessarily means that up until the time it was provided, the employer unlawfully failed or refused
to provide the requested information. There is no difference in proof or defense. The only
difference is one of remedy, and that only favors the Respondent: as part of the remedy it need
not provide information that it unlawfully delayed but ultimately provided. Given the Board
precedent, I deny the General Counsel’s motion to amend as moot and unnecessary. I would
add that the Respondent’s vigorous objection to this recasting of the violation is particularly
unwarranted given its indifferent response to the entire information request. Essentially its
peculiar position is that its unlawful delay is a defense to its unlawful failure to furnish and
demands that the matter be dropped on that basis.
21Contrary to the argument of the Respondent, I do not find it relevant that Gronek did not
reiterate his demand for information. Bundy Corp., 292 NLRB 671, 672 (1989) (no defense to
untimely furnishing of information that union did not repeat request). See, Wayne Memorial
Hospital Ass’n, 322 NLRB 100, 109 (1996) (“The fact remains that it was incumbent on the
Respondent to supply the Union with the information on request, and not for the Union to make
repeated requests for the same information until such time as the Respondent saw fit to comply.
Clearly, the Respondent should not be allowed avoid liability for refusing to provide relevant
information by shifting responsibility to the Union to renew its requests for information every so
often or risk having its request considered abandoned”).
JD–52–15
29
The net result is, as I have found: it took the Respondent 35 days to tell the Union the
identity of the Drive-Cam manufacturer and to tell the Union that Huntsville was not the only
location at which Drive-Cam was to be used; and 139 days to offer any information about the
images retrieved by the cameras. It took the Respondent 147 days to tell the Union that it did not
have an instruction or operating manual for Drive Cam or one it could obtain. Indeed, the record 5
shows it did not make an effort to obtain one until June 11.
Under the circumstances, these are entirely unreasonable delays. They reflect the lack of
interest in and attention to the matter by the Respondent. In particular, the identity of the
manufacturer and the fact that Huntsville was not the only location could have been provided 10
within a few days. There is no basis in the record for the delay. And waiting until June to provide
information about the retrieved images, and to learn that it did not have a manual, cannot
legitimately be explained.
Thus, I find that the Respondent unlawfully delayed responding to the Union’s information 15
request with regard to items 1, 3, and 7.
Were I writing on a clean slate, I would also find that the Respondent unlawfully delayed
telling the Union that it did not have access to an operating or instruction manual for the Drive-
Cam (item 6). There is, however, a problem in this regard. Somewhat remarkably, in my 20
estimation, in Raley’s Supermarkets & Drug Centers, 349 NLRB 26, 28 (2007), a Board majority
held that the failure to inform the union that requested information does not exist is not a violation
that can be found based on a complaint allegation that generally states that the respondent has
unlawfully failed to provide (or delayed in providing) requested information.
25
According to the Board in Raley’s, at least where the General Counsel is on notice before
trial that the respondent is claiming that the requested information does not exist, the General
Counsel must amend the complaint to reflect this, or face dismissal of the complaint.
In Raley’s, the complaint alleged that since a certain date, the employer had failed and 30
refused to provide the union with information allegedly in an investigator’s report. The Board
majority, in response to the arguments of their dissenting colleague, explained that
At no time, even after learning that such a report did not exist, did the General
Counsel amend the complaint to allege that the Respondent violated the Act by 35
failing to timely inform the Union that there were no such reports. Accordingly, we
do not find a violation on that basis.
Our colleague would construe the complaint to allege precisely the opposite of
what it does allege. As noted above, the complaint alleges that the Respondent 40
failed to furnish a document, viz., a copy of the investigator's report. The
complaint therefore implicitly alleges that the report exists and that the Respondent
refuses to furnish it. Further, we assume arguendo that the allegation can be
broadly construed to cover an untimely furnishing of the report or an incomplete
furnishing of the report. However, it is an unreasonable stretch to convert this 45
allegation into its opposite, i.e., that the report does not exist, and that the
Respondent failed to inform the Union of this fact. If the General Counsel wanted
to allege this as an alternative pleading, he could have done so. He did not. We
therefore decline to find a violation on this basis.
50
349 NLRB at 28.
JD–52–15
30
The unavoidable holding of Raley’s is that where the General Counsel learns prior to the
hearing that the Respondent is taking the position that it did not possess anything responsive to
an information request, the complaint must be amended to explicitly allege a refusal or delay in
conveying to the Union the fact of the lack of existence of responsive information.
5
The situation here is essentially indistinguishable from that in Raley’s. By June, 16, the
Respondent was on record stating to the Union that it could not obtain a manual. The hearing
opened a month later. Under the reasoning of Raley’s, at least where the facts are known to the
General Counsel before trial, the respondent’s unlawful failure to provide, or the delay in
providing the news that information does not exist must be based on a complaint allegation 10
specifically asserting a failure to inform (or delay in informing) the union that the requested
documents do not exist. See Albertson’s, Inc., 351 NLRB 254, 255 (2007) (reversing judge’s
finding of violation because “[u]nder the standard set forth in Raley’s Supermarkets, the General
Counsel must specifically allege that the failure to inform the union that the requested documents
do not exist (or the delayed communication of that fact) was unlawful. The instant complaint, 15
which does not even mention the nonexistence of the documents, plainly fails to satisfy this
pleading requirement”) (citation omitted)).
While I may agree that the dissent in Raley’s has the better of the argument,22 the
reasoning of the Board’s decision in Raley’s must be followed until overruled. Waco, Inc., 273 20
NLRB 746, 749 fn. 14 (1984) ("We emphasize that it is a judge's duty to apply established Board
precedent which the Supreme Court has not reversed. It is for the Board, not the judge, to
determine whether that precedent should be varied") (citation omitted). Here, the complaint
alleges only a failure to provide information—notwithstanding the Respondent’s position as of
June 16 that it had no information responsive to the Union’s request on item 6. Accordingly, I find 25
no violation as to the delay in providing that information.

3. Duty to provide advance notice and opportunity
to bargain over Sam Thomas discharge
30
Sam Thomas worked at Ready Mix since about January 2005. He was terminated
October 27, 2014. His termination stemmed from an incident on October 20, discovered on
October 23. Thomas’ plant manager pointed out a beam and electrical box knocked off in the
yard. Thomas denied having anything to do with that but admitted that when he was using a front
end loader he had hit a copper pipe connected to a propane bottle that ran to a heater. 35
Later that day, on October 23, Thomas was asked for a statement about the incident. On
October 24, Thomas was asked for a statement as to why he didn’t report the incident when it

22In Raley’s, the dissent explained:
[t]he notion that an employer's failure timely to indicate that it lacks requested
information is somehow distinguishable from a failure to provide available
information does a disservice to the Act. The purpose of the Act's requirement that
parties provide each other with relevant information is to maximize communication
between them and so minimize industrial strife. For this purpose, it is elementary
that parties must not only provide requested information, but also timely inform
each other when they have none to provide. The failure to do either is obviously a
violation of the duty to provide relevant information.
349 NLRB at 30 (original emphasis).
JD–52–15
31
occurred. He stated that he “got busy and forgot to report it.” On October 27, Thomas was
discharged for the stated reason of “your failure to timely report an accident in accordance with
company policies.” The Union was not provided advance notice of the discharge or an
opportunity to bargain over the discharge.
5
District Operations Manager Senyeri testified that he helped conduct the investigation of
the Thomas incident with the plant manager, Daniel Kirkpatrick. Senyeri reviewed (and
photographed) pictures of the damage and area of the accident attributed to Senyeri. He relied
upon Kirkpatrick’s representation to him that Thomas admitted he had the accident in question
and that he further admitted that he did not report it. There was also the handwritten statement in 10
which Thomas explained that he did not report the incident because he was busy and forget
about it. Senyeri recommended Thomas’s discharge.
In addition, Director of Human Resources O’Reilly testified that he reviewed the case and
that Thomas was terminated for not reporting the accident. O’Reilly pointed to a Ready Mix15
“Accident Investigation” that stated that it is an employee’s responsibility to “[i]mmediately report
all accidents & injuries to their supervisor.” O’Reilly identified a work rule—Rule 19 from the A
category of offenses—that make it an offense to “[f]ail to report a vehicular accident.” Thomas,
like the other employees, had years earlier signed an acknowledgement that he had had
received, agreed to read, and took responsibility for the personnel policies and procedures 20
manual distributed to employees.
Analysis
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) by 25
discharging employee Sam Thomas on October 27, 2014, without prior notice to the Union and
without affording the Union an opportunity to bargain with Respondent with respect to this
conduct and its effects.
The allegation is premised on the reasoning articulated by the Board in Alan Ritchey, Inc., 30
359 NLRB No. 40 (2012). In Alan Ritchey, the Board answered a question it had “never
adequately addressed in its broader doctrinal context under Section 8(a)(5)”:
Whether an employer whose employees are represented by a union must bargain
with the union before imposing discretionary discipline on a unit employee. 35
[Board’s emphasis.]
As the Board explained in Alan Ritchey, the issue typically arises only during the period
after a union has become the employees’ bargaining representative, but before the parties have
agreed upon a first contract (or instituted a grievance procedure). That is, indeed, the situation in 40
the instant case. Thomas was discharged October 27, 2014, just ten days after the
representation election in which the majority of the voting bargaining unit (a unit that included
Thomas) voted for union representation.
The Board in Alan Ritchey considered the issue of unilateral disciplinary action in the 45
context of the general rule that once employees choose to be represented an employer may not
continue to act unilaterally with respect to terms and conditions of employment. If the employer
has exercised and continues to exercise discretion in regard to the unilateral change at issue, it
must first bargain with the union over the discretionary aspect of the proposed change. Alan
Ritchey, supra at slip op. 2. In a decision containing a lengthy and comprehensive treatment of 50
the issue, the Board announced in Alan Ritchey:
JD–52–15
32
We hold today that, like other terms and conditions of employment, discretionary
discipline is a mandatory subject of bargaining and that employers may not impose
certain types of discipline [such as discharges] unilaterally.
In reaching this holding, the Board rejected further reliance on its decision in Fresno Bee, 5
337 NLRB 1161 (2001). In that case (argued amici submissions to the Board in Alan Ritchey),
“the Board held . . . that an employer has no preimposition duty to bargain over discretionary
discipline.” Alan Ritchey, supra, slip op. at 6. In Fresno Bee the Board affirmed the dismissal of
an 8(a)(5) allegation that was based on the imposition of discipline without bargaining.
10
The Board in Alan Ritchey explained that in Fresno Bee, the judge’s rationale (adopted by
the Board) for dismissing the allegation was that there was no evidence that the employer failed
to apply its preexisting disciplinary system. Therefore, the judge concluded that the employer
“made no unilateral change in terms and conditions of employment when it applied discipline.”
Alan Ritchey, supra, slip op. at 7. In Alan Ritchey, the Board stated that, 15
[u]nder our case law, the judge’s conclusion was a non sequitur. As we have
explained, the lesson of well-established Board precedent is that the employer has
both a duty to maintain an existing policy governing terms and conditions of
employment and a duty to bargain over discretionary applications of that policy. 20
[Id.]
The Board continued,
As observed, the Fresno Bee Board simply adopted the judge's rationale. But that 25
rationale—the only rationale articulated--was demonstrably incorrect. In such
circumstances, we decline to follow Fresno Bee. See Goya Foods of Florida, 356
NLRB No. 184, slip op. at 3 (2011) ("We are not prepared mechanically to follow a
precedent that itself ignored prior decisions, without explanation."). To the extent
Fresno Bee contradicts our conclusion here, it is overruled.30
Id. (footnote omitted).
Notably, the Board also held in Alan Ritchey that its holding would apply prospectively
only. Alan Ritchey, supra, slip op. at 11. The Board explained that prior to its decision in Fresno 35
Bee, “Board precedent did not speak clearly and directly to the issue—indeed it was essentially
silent. . . . . To that extent, it would not have been unreasonable for the Respondent to believe
that it could decline to bargain with the Union without committing an unfair labor practice.” And of
course, “the Board’s 2002 decision in Fresno Bee, supra, [ ] held (incorrectly, we have
concluded) that there is no pre-imposition [of discipline] duty to bargain over discretionary 40
discipline.” Id. These considerations, and the Board’s understanding that this type of
preimposition bargaining in the absence of a grievance-arbitration system has not been common
in the workplace,
persuade us that retroactive application of our holding could well catch many 45
employers by surprise and, moreover, expose them to significant financial liability
insofar as discharges and other disciplinary actions that could trigger a backpay
award are involved.
To be sure, we believe that today's change in the law is well-grounded in Board 50
doctrine and better serves the policies of the Act. Retroactivity, however, is not
JD–52–15
33
essential to achieving those benefits, and it may impose unexpected burdens on
employers. For these reasons, we will apply our holding only prospectively.
Alan Ritchey, supra, slip op. at 11.
5
The Board’s decision in Alan Ritchey forms the basis for the instant allegation that the
Respondent violated Section 8(a)(5) by failing to provide the Union notice and an opportunity to
bargain before terminating Thomas. It also poses an obstacle. The panel that decided Alan
Ritchey, it turns out, was not properly constituted. See, NLRB v. Noel Canning, __ U.S. __ 134
S.Ct. 2550 (2014). 10
The General Counsel concedes (GC Br. at 40) that in light of Noel Canning, supra, Alan
Ritchey “is no longer considered binding precedent.” He contends, nonetheless, that its rationale
should apply because Alan Ritchey was “an application of longstanding Board precedent
requiring employers to bargain over discretionary aspects of changes it intends to make after a 15
bargaining representative has been selected.” Id.
Of course, there is a problem with that. Even were I to proclaim agreement with the Alan
Ritchey panel that the rationale of Fresno Bee was “demonstrably incorrect,” it remains the case
that before Alan Ritchey there was Fresno Bee, and under Fresno Bee and its rationale—which 20
was adopted by the Board—the instant allegation of the complaint must be dismissed. Alan
Ritchey overruled Fresno Bee, but Alan Ritchey is not precedent. That leaves Fresno Bee, wrong
as it may be, in place. In any event, even were one to ignore Fresno Bee, as the Board made
clear in Alan Ritchey, the general application of its principles was not so clear that the Board was
willing to apply the decision in Alan Ritchey retroactively. That was also a part of Alan Ritchey’s 25
rationale, but not a part that General Counsel wants me to apply here.
Some believe that the Board will reaffirm Alan Ritchey’s principles. It may or it may not.
And if it does, it may or may not once more decline to apply the principles retroactively. I agree
with the Respondent’s position on this: “the Administrative Law Judge must apply Board 30
precedent as it finds it.” (R. Br. at 28). It is not my position to guess or anticipate what the Board
will do in the future, but rather to apply the Board’s precedents as best I can. While Alan Ritchey
is not precedent, Waco, Inc., Inc., 273 NLRB 746, 749 fn. 14 (1984), is: "We emphasize that it is
a judge's duty to apply established Board precedent which the Supreme Court has not reversed.
It is for the Board, not the judge, to determine whether that precedent should be varied" (citation 35
omitted). Accord, Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enf’d. 640 F.2d
1017 (9th Cir. 1981). I will dismiss this allegation.
4. The refusal to bargain with Jerry Davis
40
As referenced above, collective bargaining between the parties began January 13, 2015.
The parties met in a Huntsville-area hotel.
As referenced above, present for Ready Mix was Attorney Silbergeld, Director of Human
Resources O’Reilly, and District Operations Manager Senyeri. Present for the Union was 45
Attorney Morris, Business Agent and Secretary-Treasurer Gronek, and International
Representative Helfer. Also present for the Union was a Huntsville Ready-Mix employee from the
newly-certified bargaining unit, employee Jerry Davis who had been the union’s election observer
for the October election. Davis had never before been involved in collective-bargaining
negotiations. The January 13 meeting transpired without incident.50
JD–52–15
34
The same individuals were present at the parties’ second meeting, which began the
morning of February 24, around 9:30 a.m., at the same hotel. Reports of an approaching
snowstorm led both union and management representatives to decide to end the meeting earlier
than planned, and not to resume the next day, but, nevertheless, the parties met to bargain until
early to midafternoon.5
Near the end of the February 24 meeting, the union representatives arose from the table
and left the room to conduct a caucus meeting.
As they left, Senyeri noticed what he thought was a pistol on Jerry Davis’ right side,10
partially concealed by Davis’s shirt and jacket. After the Union had left the room, Senyeri asked
the others “anybody see that?” No one had. Senyeri said, “I’m pretty sure Jerry has a gun on his
side.” O’Reilly said, “I doubt it” and mentioned to Silbergeld that “it’s probably his cell phone”
because “there’s no way somebody would bring a gun like that into this type of setting.”
15
When the Union returned and sat down, Senyeri asked Davis “if he had a cell phone case
or a pistol on his side?”23 Davis replied “yeah, that’s my sidearm.” Davis then stated that he
"always," carries a firearm "because there are a lot of crazies out there." There was some
laughter in response and no further comments on the matter. The parties discussed getting in
touch soon to plan a future meeting, exchanged pleasantries, shook hands, and the meeting 20
ended approximately 5 minutes later, with the Ready Mix representatives leaving the room first.
Immediately after the employer representatives left, along with the other union
representatives, spoke to Davis and “explained to him that it’s not proper to have [a gun] in that
type setting and asked him not to bring it back to any subsequent negotiations.” Davis, agreed,
telling the other negotiators, “that’s fine, it doesn’t bother me none. If somebody is upset about it, 25
I don’t have to bring it.”
At the hearing evidence was introduced showing that Davis applied for and received from
the State of Alabama a license to carry a concealed pistol. He has renewed this 5 year license
twice, most recently in April 2014. Davis testified that his daily habit is to bring his gun
“everywhere I can carry it legally.” 30
The testimony establishes that the union representatives did not know that Davis had a
gun at the meeting until it was called to their attention, when Senyeri asked Davis about it at the
February 24 meeting upon the Union’s return from the caucus meeting.
The next day, Attorney Silbergeld wrote to the union’s attorney Morris, expressing
“outrage” that Davis had brought a weapon with him into negotiations and accusing the union’s 35
representatives of “condon[ing] and “appear[ing] complicit” in a “scheme to create an environment
obviously designed to put those representing the Company in fear for their lives.” Silbergeld
wrote that “[i]t is unthinkable that the Local, the International Representative or you as the Local's
attorney would In any way abide this outrageous, intimidating conduct. . . . Other members of the
Local's team, Joe Gronek, Stu Helfer, and you should be as incensed as members of our team 40
are about this intolerable harassment and intimidation.”
He continued:

23The testimony of witnesses was contradictory as to whether Senyeri used the term pistol,
firearm, handgun, sidearm, or gun. I have used the word “pistol” in the text. It may have been
one of the other terms. It’s not a material difference for purposes of this case.
JD–52–15
35
We understand that carrying a licensed firearm, under certain circumstances, is
permitted in the State of Alabama. It is not acceptable at the bargaining table. . . .
It is simply incomprehensible, outrageous and indeed frightening that the Local
allowed this to happen, then said nothing during this obvious attempt to intimidate,
harass and create a fear for the safety of all those present. 5
Silbergeld wrote, “It will not stand.” Silbergeld indicated that he had been charged by
Ready Mix “to immediately determine what our options are going forward so that we can proceed
free of the deep concerns and very serious risks that Mr. Davis has created. You can expect a
further response within the next day or two.” He concluded by stating that:10
The Company is reviewing all options regarding this most unprecedented and
highly dangerous situation. All rights and claims with respect to this conduct are
reserved and nothing herein, or omitted here from, shall be deemed a waiver of
any of these rights or claims of the Company or the individuals to whom this
conduct was directed. The Company cannot be bargaining under these 15
circumstance[s] and cannot resume any negotiations until it may do so safely.
Union representative Gronek responded the next day by letter dated February 26. His
letter began by “point[ing] out that the events you speak of in your letter did not occur until the
very end of the meeting . . . . [I]f there was ‘fear’ and ‘intimidation,’ its duration was the last five
minutes we were all in the room when the Company ‘discovered’ Davis’ holster.” Gronek’s letter 20
continued:
there were several of the usual closing salutations exchanged after the matter to
which you referred occurred, with no comment from the Company whatsoever
about the issue. As a matter of fact, immediately after the point where you now
assert becoming “fearful” and “intimidated,” you simply said you would provide us 25
some future dates the next day and were grateful for canceling the previously
scheduled second day due to your need to travel to California and avoid the
coming snowstorm.
Having said that, let me also inform you that neither myself, Mr. Helfer, or Mr.
Morris, were aware of Davis having a firearm on him prior to your committee 30
pointing it out . . . . [W]e agree with you that having a firearm in collective
bargaining is totally unacceptable.
Had you discussed this with us at the meeting or called me prior to issuing your
indignant letter, we would have told you that we had already instructed Mr. Davis 35
that having a gun with him at collective bargaining is not allowed and would not be
permitted at any subsequent meetings and the Union can assure you and your
committee that it has nothing to fear from Mr. Davis or any other committee
members carrying a firearm to negotiations again. We would like to receive the
same assurance from the Company. 40
Please provide us with promised dates of future negotiations.
Silbergeld responded that same day, February 26, proposing dates for bargaining in March and
April. Silbergeld’s letter then stated:
JD–52–15
36
The Company is prepared to meet with the Union on the above dates. We will not,
however, attend under any circumstances if Jerry Davis is on the Union's
negotiating team. Accordingly we would request your confirmation that he will not
be. Mr. Davis' conduct, however, has made it impossible for the Company's team
to continue negotiations in good faith. We recognize, of course, the Union's right 5
to select the negotiating team it wants. Accordingly, if another employee from the
Huntsville facility will be attending when we next meet, he should notify the
Company that he will not be able to perform scheduled work on the day(s)
designated.
The next day, February 27, Ready Mix filed an unfair labor practice charge with Region 10 10
of the Board, signed by Silbergeld, alleging that the Union engaged in bad-faith bargaining in
violation of the Act because
It allowed a representative on its bargaining team (the Shop Steward at the
Employer’s facility) to participate in the negotiations while wearing a firearm. That
representative admitted carrying a weapon “all the time” because “there are a lot of 15
crazies out there.” Teamsters Local No. 402 condoned the conduct of its
bargaining team member. By intimidating and harassing conduct, the Union
engendered such ill will among members of the Employer’s representatives as to
render good faith bargaining impossible as long as the gun-toting representative
remains on the Teamsters Local No. 402 bargaining team.2420
Before this series of letters, Gronek had talked to Davis, and told him that the Employer
was “having an issue of being in fear for their life.” Davis testified that Gronek said that he told
the Employer that Davis would not bring the gun to negotiations and “that they were fine.”
However, the next day—presumably after receiving the above correspondence—Gronek called
Davis back and told him that the Employer was refusing to meet with Davis at bargaining.25

24In dismissing the charge on May 21, the Regional Director wrote:
Decision to Dismiss: Your charge alleges the Union violated section 8(b)(3) of
the Act by allowing a representative on its bargaining team to participate in
contract negotiations while wearing a firearm. After careful review, I conclude that
the investigation revealed no evidence that any threats were made, nor any
threatening conduct engaged in, by any union official. Nor is there any allegation
or evidence that the possession of the firearm constituted a violation of any
law concerning the possession of a firearm. Furthermore, the investigation
established that the Union addressed the Employer's concern by instructing the
representative to refrain from bringing a firearm to future bargaining sessions, and
that the representative and the Union provided assurances to the Employer in this
regard. There is no evidence of any action or inaction by the Union which would
establish a refusal to bargain collectively.
In light of the foregoing, I have concluded that the mere fact that an employee
member of the Union's negotiating team had a firearm on his person during a
bargaining session is insufficient to establish a violation of Section 8(b)(3) of the
Act as alleged. I am, therefore, refusing to issue complaint in this matter.
JD–52–15
37
After the February 24 meeting, Davis was not permitted by the Employer to return to work
for approximately two weeks. Based on Davis’ statement in the negotiating meeting that he
“always” carries a firearm, the Employer suspended Davis from work while it conducted an
investigation into whether he had ever brought a weapon to work. Davis denied having ever
brought a weapon to the workplace and the investigation did not reveal anything different. Based 5
on notes of the investigation placed into evidence Davis reiterated that he was “fine” not bringing
a weapon to further negotiations. Davis also admitted in the investigation (and in testimony at
trial) that he had carried his weapon with him during the first negotiating session January 13,
although it went unobserved by anyone. Davis was reinstated with backpay after approximately
two weeks. No disciplinary offense was assessed against him. 10
Email correspondence between Silbergeld and Gronek during the first week of March led
to an agreement to meet April 14, without Davis. The Union’s agreement to meet was in the face
of the Employer’s maintenance of its position that it would not meet to bargain with the Union if
Davis was present. The Union agreed to meet in Davis’ absence, sending an email to Silbergeld
on March 7 stating that “While we do not agree that he Company has any cause to exclude Jerry 15
Davis from negotiations, we will agree to meet without him pending the Company’s investigation.”
Gronek testified that he thought—he wasn’t sure if O’Reilly said something to suggest this
or it was just an assumption on his part—that after the investigation concluded and Davis was
returned to work, the Employer’s position regarding Davis’ participation in future negotiations
would soften. However, in response to Gronek’s email, Silbergeld wrote to Gronek (copying 20
Morris and Helfer) on March 8 stating:
Joe: we are on for April 14. I want to make it clear that we are not prepared to
meet with Jerry Davis present under any circumstances. The investigation relates
to his suspension from work, not his highly destructive conduct at the bargaining
table. Put it another way, we are prepared to negotiate with any group the Union25
designated, but not Mr. Davis. This includes April 14 and any time thereafter. We
are not getting into the same room with the man at any time in the future. So
again [if] the Union is unwilling to proceed without him, that's its decision. Do
whatever you need to do. The Company is ready, willing and able to proceed, and
the investigation at work is not tethered to the outcome of the investigation. We 30
are all upset and deeply disturbed because we believed the initial meetings got off
on the right foot until it became evident that Jerry Davis had a gun. If the Union
doesn't understand that it's not okay, that it destroyed the good will we had tried to
establish, then say so to the NLRB and let's not meet until this is resolved. Not
what the Company prefers, but it's the Union's call. I don't think I can be more 35
clear.
The Employer continued to maintain its position that it would not meet in the presence of
Davis. After Davis was returned by the Employer to work, on March 18, union counsel wrote and
asked Silbergeld “is the Company retreating from its efforts to ban him from negotiations.” 40
Silbergeld responded the same day: “[T]he answer is ‘No.’ We are not meeting if Mr. Davis is
going to be present.” Silbergeld stated that “[t]he Company’s team has decided it will not expose
itself to this risk. . . . A responsible response from the Union would be: ‘You will never have to
confront this person again in negotiations.”
45
This has remained the Employer’s position through the date of the trial in this matter, and
in preparation for each negotiating meetings occurring after February 24. The Employer has
made clear that it had no objection if the Union communicated by telephone with Davis during the
JD–52–15
38
meetings, but repeatedly sought confirmation that Davis would not be on the premises during the
meeting, even in another room, and refused to meet without assurances that he would not be
there. The Employer has made clear that it does not object, and will not refuse to meet, if the
Union brings any other person—other than Davis—to negotiations, but remains adamant that it
will not meet with Davis present as a union representative, as set forth in the parties’ stipulation:5
for the sole reason that he admitted he carried a partially concealed gun to
bargaining negotiations on February 24th, 2015 and to the previous negotiation on
January 13th, 2015, and because he stated on February 24th, 2015[,] that he,
"always," carries a firearm, "because there are a lot of crazies out there.”
Analysis10
The complaint alleges that the Respondent violated Section 8(a)(5) of the Act by its
refusal to bargain with the union’s chosen representative employee, Jerry Davis, present at
negotiations. It is undisputed that the Respondent, in fact, since February 26, conditioned its
willingness to meet to bargain on receiving assurances that Jerry Davis will not be present. 15
Section 7 of the Act grants employees the right to organize and then to “bargain
collectively through representatives of their own choosing.” And it is an unfair labor practice and
violation of Section 8(a)(5) of the Act for an employer “to refuse to bargain collectively with the
representatives of his employees” (subject to the provisions of section 9 of the Act).20
Pursuant to this statutory footing, it is well-settled that "each party to a collective
bargaining relationship has both the right to select its representative for bargaining and
negotiations and the duty to deal with the chosen representative of the other party." Fitzsimons
Mfg. Co., 251 NLRB 375, 379 (1980), enf’d. 670 F.2d 663 (6th Cir. 1982); Long Island Jewish 25
Medical Center, 296 NLRB 51, 71 (1989) (“Both unions and employers can freely choose their
representatives to deal with the other in bargaining and grievance situations”).
“A narrow exception to this rule is triggered when there is ‘persuasive evidence that the
presence of a particular individual would create ill will and make good-faith bargaining 30
impossible.’” Whitesell Corp., 357 NLRB No. 97, slip op. at 25 (2011), quoting, KDEN
Broadcasting Co., 225 NLRB 25, 35 (1976); Fitzsimons, supra (notwithstanding established rule
in favor of parties having right to choose representatives, “where the presence of a particular
representative in negotiations makes collective bargaining impossible or futile, a party's right to
choose its representative is limited, and the other party is relieved of its duty to deal with that 35
particular representative. The test . . . is whether there is ‘persuasive evidence that the presence
of the particular individual would create ill will and make good-faith bargaining impossible’")
(citation to KDEN, supra, omitted, emphasis in original). See, GE v. NLRB, 412 F.2d 512, 517
(2d Cir. 1969) (“There have been exceptions to the general rule that either side can choose its
bargaining representatives freely but they have been rare and confined to situations so infected 40
with ill-will, usually personal, or conflict of interest as to make good-faith bargaining impractical”).
In assessing whether a party may refuse to deal with a chosen bargaining representative,
the Board must determine whether the offending individual’s “conduct was sufficiently egregious
to make bargaining impossible under the above standard.” Fitzsimons Mfg., supra at 379. In 45
other words, the standard is an objective one, based on an assessment of the individual’s whose
conduct is asserted to be the justification for the refusal to bargain. The standard is not based on
the subjective asserted reactions of individual bargainers to the misconduct. Rather, the Board
looks at the conduct of the representative with whom the Respondent is refusing to meet and
JD–52–15
39
makes an objective determination of whether the conduct is reasonably likely create ill will
sufficient to make good faith bargaining impossible. See, e.g., King Soopers, 338 NLRB 269, 269
(2002) (“in light of [union representative’s] egregious misconduct, individuals required to deal with
him in a potentially adversarial setting . . . might reasonably be preoccupied with the legitimate
concern that he would react violently if his position did not prevail”); Long Island Jewish Medical 5
Center, 296 NLRB at 71–71 (“an employer can refuse to deal with a union representative whose
conduct has crossed over a line of permissible conduct established by the Boards and the
Courts”).
Thus, the Respondent is correct that “whether Respondents’ witnesses feared Mr. Davis 10
at the hearing is irrelevant” (R. Br. 43), but similarly, the case does not turn on its witnesses’
testimony that its bargainers “would not feel comfortable” (Tr. 280), “would not be able to focus”
(Tr. 280) and “would prefer not to” return to negotiations (Tr. 348) if Davis participated in future
meetings.
15
In other words, evidence of the impossibility of bargaining with Davis is not demonstrated
by the subjective claims of the Respondent’s bargainers that bargaining with Davis is impossible.
The issue is whether there is persuasive evidence that Davis’ conduct and actions make it
reasonable likely that his presence at the bargaining table would create ill will that makes
collective-bargaining impossible.20
In considering this question, it is useful to mention what this case is not about. It is not
about a right to bring gun into collective bargaining, or the duty to bargain while your opponent
possesses a side arm—no party to this litigation proposes that this should be permitted or
required, nor does any party condone the possession of a weapon in negotiations. Even before 25
the Respondent objected, the union committee, immediately upon the close of the meeting,
instructed Davis that he could not bring a firearm to negotiations. He immediately agreed. The
issue of whether a party can refuse to bargain because the opposing party’s representative is
wearing a sidearm is not before me. I do agree that there is no legitimate use for a gun in
collective bargaining, an endeavor where it is not unusual for tempers to flare and heated 30
emotions to be felt and displayed.

However, the question at bar is whether an employer may refuse to bargain in future
meetings with a union representative because the union representative was seen by the
employer’s representative near the conclusion of a prior meeting with his personal handgun 35
“partially concealed” on his side, where the union and the union representative agree that he will
not bring his gun to future negotiations. Specifically, the issue is whether Davis, having brought a
sidearm to two negotiations—which at the time caused no discernible or observable ill will,
outburst, or impediment to bargaining—the Respondent is, on that basis, privileged to refuse to
negotiate at all future meetings in the presence of Davis, who has committed to not bringing a 40
gun to further negotiations.
In my view, under the circumstances here, we are a long way from a situation that would
justify the Respondent’s refusal to bargain with Davis going forward.
45
Davis has engaged in no violence. He engaged in no threats of violence, or any other
threats. There is no evidence that he has ever done so, much less in collective bargaining.
There is no evidence that he has a propensity for violence or for anger or for excitability. During
the two meetings that he brought a holstered pistol, no one knew about it until near the end of the
meeting when it was observed. There were zero incidents of his use of the gun to make a point, 50
to underline a verbal statement, or any other reliance on the weapon. Davis’ weapon was clearly
not intended to be visible—it went unnoticed through the entire January 13 bargaining session
JD–52–15
40
and was seen by one person (and not others) only in the final minutes of the February 24
session. Until the Respondent’s representative asked him what he was wearing on his side,
Davis did not mention that he had a weapon. He did not brandish it, reference it, or even make it
obvious he was wearing it. He did not take any action to use the gun to threaten anyone. He did
not make any effort to intimidate anyone. Even before the Respondent objected, the Union 5
raised the matter with Davis, and Davis agreed to not bring the gun back to negotiations. It is as
if the Respondent, having objected to Davis possessing a gun, will not take yes for an answer.
The Respondent also bases its refusal to bargain on the comments Davis made when
asked at bargaining about the gun, specifically, that Davis told the negotiators that he "always,"10
carries a firearm, "because there are a lot of crazies out there.” However, I find, contrary to the
suggestion of the Respondent, that Davis’ statements would tend to buttress the reasonable
observer’s understanding that his possession of the gun was not related to collective bargaining.
His statement adds to the objective evidence demonstrating that the gun was not there because
the parties were negotiating. It may show bad judgment to have worn the gun (I believe it does), 15
but Davis’ comments would add to the objective observer’s understanding that the gun was not to
demonstrate a point in bargaining.25
Moreover, I reject the Respondent’s argument—really an unstated suggestion—that
Davis’ pledge not to bring his sidearm to future negotiations is not believable because he stated 20
on February 24, when asked about his carrying of a gun, that he “always," carries a firearm. By
all evidence—and it was investigated by the Respondent—Davis (appropriately) does not carry
his gun into work. Davis’ choice to carry a weapon routinely on his person or in his car to protect
himself from “crazies” is a matter beyond the legitimate concern of this tribunal. Many people
make that choice, even if the Respondent’s representatives, and many others, do not, and do not 25
like that some do. There is no evidence at all that Davis is unwilling or not inclined to forego
possessing a weapon at negotiating meetings. Both Davis and the Union have told the
Respondent—from their first response on the issue—that Davis will not bring a pistol to any future
negotiations.
30
The Respondent’s position is, essentially two-fold, and neither position withstands
scrutiny. First, its argument amounts to the claim that Davis’ poor judgment in bringing a weapon
to the negotiations, coupled with the fact that he routinely carries a gun for protection, renders
him unfit, unsafe, and objectively dangerous to have in a room, and his promises to not bring the
gun to negotiations not worthy of belief because he is the type of person who did not understand 35
in advance that others would object to him bringing a gun into the room.
The Respondent’s position is not compelling. It would be the first case, ever, where an
employee who engaged in no violence, no threats, no hostile action, no intentional act of
wrongdoing, could be barred from bargaining on the Respondent’s insistence that his action 40
created a situation so extreme that further bargaining with him was impossible and that his

25Thus (even apart from the different legal standards governing the discharge of striking
employees and an employer’s refusal to negotiate with a union representative), Davis’ possession
of his gun in these meetings was unlike the situation of the discharged striking employee who
stationed himself, armed, outside a gate used by nonstriking employees (Keco Industries, Inc.,
301 NLRB 303 (1991)) or the striker who followed nonstrikers in his car, pulled up beside them,
and brandished his weapon to the nonstrikers, displaying it, pointing to it, and making gestures
suggesting that he was recording the nonstriker’s license plate. Newport News Shipbuilding, 265
NLRB 716, 725 (1982)
JD–52–15
41
unintentional error was so egregious that it precludes believing he will not repeat his mistake,
notwithstanding his pledge to do so.26
In assessing this claim of the Respondent, it is significant that the Respondent, its
employees and supervisors, have not reacted with the same intensity to the fact that Davis 5
continues to come to work each day and performs his work without incident. Production has
continued and employees and supervisors alike continue to come to work, notwithstanding that
the same Davis who brought the gun to negotiations is a full-time employee present at the
Huntsville plant.
10
The contention that bargaining is impossible with Davis present, because he is someone
whose judgment is so flawed that he would bring a sidearm into a collective-bargaining meeting,
is undercut significantly by the willingness and ability of the Respondent to work with Davis in the
plant. Thus, the Respondent—knowing what it knows—allows its supervisors and his coworkers
to come to work with Davis every day. This helps to demonstrate that there is no objective 15
reason that the Respondent cannot engage in negotiations with Davis present. In my view, the
evidence shows that making good-faith bargaining impossible is a unilateral choice that the
Respondent has made based on claims about its bargainers’ subjective reactions, not one
objectively reasonable under the circumstances.27

26A review of cases where the Board found an employer privileged to refuse to bargain with a
particular union negotiator demonstrates how far afield those cases are from the circumstances
here. See e.g. Fitzsimons Mfg. Co., 251 NLRB 375, 376, 379 (1980) (employer did not violate
the Act by refusing to bargain with employee who threatened to “punch [corporate personnel
director] in the mouth and knock him on his ass” and then committed an unprovoked physical
assault of employer’s corporate personnel director to keep him from speaking during a grievance
meeting), enf’d. 670 F.2d 663 (6th Cir. 1982); King Soopers, Inc., 338 NLRB 269, 269 (2002)
(employer did not violate the Act by refusing to bargain with employee found to have a “tendency
to react violently during a confrontation,” who was discharged for confrontation with supervisor in
which he “angrily threw his meat hook over his shoulder narrowly missing an employee[;]. . .
threw a 40 pound piece of meat into a saw (breaking its blade); threw his knife into a box;
threatened his supervisor; and refused to follow the store manager's order to leave the store”; an
arbitrator found that the employee “cannot control his temper” and was “capable of seriously
endangering the safety of the supervisor and the employee who had been present during the
confrontation” and a few months before the employee “had placed his hand over the store
manager’s mouth during a discussion with her”); Sahara Datsun, Inc., 278 NLRB 1044, 1053,
1045 (1986) (employer did not violate the Act by refusing to bargain with employee who circulated
a newsletter that, for the purpose of “retaliation,” made unsubstantiated “particularly personal”
allegations against named members of management asserting that they had engaged in “sex out
of wedlock with two known prostitutes,” “the use of cocaine with these two prostitutes,” and that
they had “partaken in the use and sale of cocaine,” and further, the employee (without any
evidence) told a loan officer at the bank that finances the employer’s customer’s credit
applications that the employer was “falsifying the applications that the customers fill in” and that a
manager was “altering the applications”), enf’d. 811 F.2d 1317 (9th Cir. 1987).
27The Respondent, arguing (R. Br. at 41) that the hotel meeting room in which negotiations
took place was “private property,” also contends that it was illegal under applicable State law for
Davis to bring his gun to the hotel meeting room. The Respondent maintains that Davis’ failure to
understand the law “legitimates” the Respondent’s refusal to meet with him thereafter. This is a
variant on the argument that Davis’ “bad judgment” justifies the Respondent’s refusal to bargain,
an argument I reject as failing to meet the standard for misconduct required by the Board to
privilege a refusal to bargain. In any event, assuming that, as Davis testified, and as the
JD–52–15
42
And this brings us to the gravamen of the Respondent’s argument, a second argument
expressed in the highest dudgeon, that works its way into nearly every aspect of the
Respondent’s claim—and it is an untenable argument.
5
The Respondent attempts to distinguish the revealing fact that it is able to work with
Davis, while claiming it cannot collectively bargain with Davis, on the grounds (R. Br. at 45) that,
[Davis’] co-workers at Respondent’s Huntsville facility never had to be confronted
with his firearm. The Respondent’s bargaining representatives did.10
In other words, unlike employees and supervisors at work, the Respondent’s bargainers
were confronted with [Davis] carrying a deadly weapon. Those representatives felt
harassed, intimidated, and that their safety was compromised. 15
Id. at 46.
This is the nub of the Respondent’s argument: that is, having seen Davis’ pistol on his
side, its bargainers are so “trauma[tized]” (R. Br. at 44) that they—unlike everyone else who deals 20
with him—cannot reasonably be expected to be in a room with him and bargain. And the
problem, of course—without even reaching the bona fides of Senyeri and O’Reilly’s testimony
about their feelings about the incident—is that in entertaining the Respondent’s defense we are
way down the road to giving Senyeri and O’Reilly, through their testimony of their individual,
subjective, purported emotional responses, to dictate whether Davis can be present at collective-25
bargaining negotiations.
I do not accept it. Most relevantly, objectively, there is no evidence, no basis, no studies,
no reason at all to believe that witnessing a holstered gun is likely to result in “nothing less than a
post-traumatic stress syndrome,” (Tr. 40) as the Respondent’s counsel argued in his opening 30
statement. See also, R. Br. at 40 (contending that the negotiators “current mental state can be
likened to post-traumatic stress syndrome” because of what they witnessed); see also R. Br. at
44 (bargaining with Davis will “force them to re-live the trauma”).
35
Stripped of the Respondent’ s witnesses and counsel’s assertions of the “trauma”
produced at having witnessed the gun strapped to Davis’ side, there is no objective evidence at
all that Davis’ conduct, behavior, or any propensity to misbehavior would impinge on future—
___________________________
evidence shows, he possessed a concealed weapons permit at the time of the negotiations, it
appears that Davis is right and the Respondent wrong about Alabama State law. That law states
that “no person shall carry a pistol about his person on private property not his own or under his
control unless the person possesses a valid concealed weapon permit.” Alabama Code Sec.
13A-11-52 (emphasis added). The evidence suggests that Davis has (and had) just such a
concealed weapons permit, pursuant to Ala. Code Sec. 13A-11-75. In any event, whether or not
Davis’ past actions were consistent with state law is not a basis for determining whether the
Respondent was thereafter obligated to bargain with him under the Act. Keco Industries, 301
NLRB 303, 304 (1991) (“state gun control laws are not controlling here. The legality of [the
employee’s] conduct under state laws is not dispositive of what are separate and distinct issues
raised under the . . . Act”); Catalytic, Inc., 275 NLRB 97, 98 fn. 13 (1998) (same, regarding
anonymous telephone call found to be criminally illegal under state law).

JD–52–15
43
unarmed—collective bargaining in any way. His conduct does not create objective circumstances
that undermine the ability of the parties’ to bargain.28
If Davis’ mere presence causes sufficient ill will to make collective bargaining impossible,
it is not because of Davis’ conduct but because the Respondent has chosen to make it so. In 5
other words, the Respondent has violated the Act by refusing to collectively bargain with the
Union with its chosen representative Davis present.
CONCLUSIONS OF LAW
10
1. The Respondent Ready-Mix USA, LLC, is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Charging Party International Brotherhood of Teamsters, Local 402 (Union) is a labor
organization within the meaning of Section 2(5) of the Act and the certified collective-15
bargaining representative of the following appropriate unit of the Respondent’s employees:
All regular part-time and full -time drivers, loaders, dispatchers, and mechanics,
employed by the Employer at its 2020 Vermont Road, Huntsville, Alabama 35806
facility; but excluding all office clerical employees, professional employees, 20
managers, guards and supervisors as defined in the Act.
3. The Respondent violated Section 8(a) (1) of the Act, since on or about September 16, 2014,
by maintaining the provision in Section B of its CEMEX Work Rule, No. 12, that contains the
following language: 25
The following offenses can lead to dismissal at the discretion of the management,
on the first or any subsequent recurrence after the employee has been notified by
his supervisor that the offense has been made. A record of this notification will be
incorporated in the personnel records of the employee at the time it is given.30
* * * * 12. Solicitation or distribution of any non-work related materials without
supervisor's permission.
4. The Respondent violated Section 8(a) (1) of the Act, since on or about September 16, 2014, 35
by maintaining the provision in its Ready Mix USA, LLC Manual (June 10, 2010), Rules of
Conduct No. 31, that contains the following language:
Prohibited conduct which may subject an employee to disciplinary action, including
immediate termination or demotion without notice or warning include, but are not 40

28The Respondent also contends that the Union has proven itself able to bargain without
Davis—a circumstance the Employer’s refusal to bargain with Davis forced upon the Union. The
Respondent argues that this should be considered in assessing whether the Respondent’s
refusal to bargain violates the Act. This is a meritless argument, which ignores the autonomy of
the Union to choose its representatives and the importance which the Act accords to that right.
Although it is a Noel Canning case, I agree with and adopt the reasoning expressed in Neilmed
Products, Inc., 358 NLRB No. 8, slip op. at 1 (2012), rejecting an employer’s claim that the union
did not have a “superseding need” to have as its representative an employee terminated for
picket line violence: “such evidence is irrelevant because the Board does not require a party to
demonstrate a particular need for its chosen bargaining representative.”
JD–52–15
44
limited to, the following described conducts. The disciplinary action taken will
depend upon the nature and severity of the circumstances.
* * * 31. Solicitation or distribution of unauthorized materials or products to
employees or customers on Company property (emphasis in original).5
5. The Respondent violated Section 8(a)(5) and (1) of the Act, since on or about January 20,
2015, by failing and refusing to provide the Union with notice and an opportunity to bargain
over the effects of the implementation of the Drive-Cam system on the terms and condition of
employment of the above-described unit of the Respondent’s employees. 10
6. The Respondent violated Section 8(a)(5) and (1) of the Act, since on or about January 20,
2015, by failing and refusing to provide, and unlawfully delaying the furnishing of, information
regarding Drive-Cam requested by the Union.
15
7. The Respondent violated Section 8(a)(5) and (1) of the Act, since on or about February 26,
2015, by failing and refusing to collectively bargain with the Union, as the certified collective-
bargaining representative of the above-described unit, by refusing to meet and bargain with
union representative Jerry Davis.
20
8. The unfair labor practices committed by Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
25
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist there from and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent maintains unlawful employee solicitation and 30
distribution work rules, the Respondent shall be ordered to revise or rescind the unlawful rules.
This is the standard remedy to assure that employees may engage in protected activity without
fear of being subjected to an unlawful rule. See Guardsmark, LLC, 344 NLRB 809, 812 (2005),
enfd. in relevant part 475 F.3d 369, 374 U.S. App. D.C. 360 (D.C. Cir. 2007). As stated there, the
Respondent may comply with the order of rescission by reprinting the work rules and rules of 35
conduct without the unlawful language or, in order to save the expense of reprinting the whole
manual it may supply its employees with inserts stating that the unlawful rules have been
rescinded or with lawfully worded rules on adhesive backing that will correct or cover the
unlawfully broad rules, until it republishes the manual without the unlawful provisions. Any copies
of the manuals that include the unlawful rules must include the inserts before being distributed to 40
employees. Id. at 812 fn. 8.
The allegations (each admitted by the Respondent) concern (1) the “CEMEX work rules”
maintained by the Respondent Ready Mix and (2) the Ready Mix USA, LLC Manual maintained
by the Respondent. Based on O’Reilly’s testimony, I have concluded that the Ready Mix manual, 45
with its offending language, was distributed to employees at all Ready-Mix locations. (Tr. 286–
287, 288–289.) As to the CEMEX work rules, there is no evidence of their distribution, but, as I
have found, they are maintained on the intranet site, and available by request (Tr. 289) at all
CEMEX facilities which include the Respondent’s facilities. Given this, it is appropriate that the
remedy and notice posting in this case extend to each of the Respondent’s facilities where the 50
unlawful rules have been or remain in effect. Long Drug Stores California, 347 NLRB 500, 501
(2006); Guardsmark, supra at 812; Guardsmark, LLC v. NLRB, supra at 381.
JD–52–15
45
Having found that the Respondent unlawfully failed and refused to bargain with the Union
over the effects of the implementation of the Drive-Cam system, the Respondent shall be ordered
to rescind any disciplinary actions or other effects of its implementation on the terms and
conditions of employment of the Union-represented bargaining unit employees at the
Respondent’s Huntsville, Alabama facility. The Respondent shall be further ordered, upon 5
request, to bargain with the Union over the effects of its implementation of the Drive-Cam system
on the terms and conditions of the Union-represented employees at its Huntsville, Alabama
facility.
Having found that the Respondent unlawfully failed and refused to furnish the Union with 10
information responsive to its request as to “When how and if the videos will be reviewed” (item 4
of the Union’s January 20, 2015 information request), the Respondent shall be ordered to provide
the Union with that information.
Having found that the Respondent unlawfully failed and refused to collectively bargain 15
with the Union as the certified collective-bargaining representative of the unit employees
described in the foregoing decision, by failing and refusing to bargain with Union Representative
Jerry Davis, the Respondent shall be ordered, upon request, to bargain with the Union as the
representative of the bargaining unit employees and meet with and bargain with its designated
representatives including Jerry Davis. 20
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational notice, as described in the 25
attached appendix. This notice shall be posted in each of the Employer’s facility wherever the
notices to employees are regularly posted for 60 days without anything covering it up or defacing
its contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the 30
event that, during the pendency of these proceedings, the Respondent has gone out of business
or closed any of the facilities 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 September 16, 2014. When the notice is issued
to the Employer, it shall sign it or otherwise notify Region 10 of the Board what action it will take 35
with respect to this decision.
Extension of the Certification Year
In her brief, counsel for the General Counsel seeks as part of the remedy an extension of 40
the certification year, citing Mar-Jac Poultry Co., 136 NLRB 785 (1962).
After the Board certifies a union as the employees’ representative, Section 9(c)(3) of the
Act provides that that the union’s presumption of majority status cannot be challenged by a new
election for a period of 12 months. 29 U.S.C. § 159(c)(3). “The Board has long held that where 45
there is a finding that an employer, after a union's certification, has failed or refused to bargain in
good faith with that union, the Board's remedy therefore ensures that the union has at least 1
year of good-faith bargaining during which its majority status cannot be questioned.” Mar-Jac
Poultry, supra.
50
This is not an extraordinary Board remedy. It “is a standard remedy where an employer’s
unlawful conduct precludes appropriate bargaining with the union.” Outboard Marine Corp., 307
JD–52–15
46
NLRB 1333, 1348 (1992); Accurate Auditors, 295 NLRB 1163 (1989) (“The law is settled that
when an employer's unfair labor practices intervene and prevents the employees' certified
bargaining agent from enjoying a free period of a year after certification to establish a bargaining
relationship, it is entitled to resume its free period after the termination of the litigation involving
the employer's unfair labor practices”). The Board’s remedy usually takes the form of an 5
extension of certification for one year, although it may be for a shorter period of time, or even for
a “reasonable” time.” G.J. Aigner Co., 257 NLRB 669 fn. 4 (1981); San Antonio Portland Cement
Co., 277 NLRB 309 (1985).
Notably, the Board’s concern with providing this insulated period of bargaining is not 10
limited to situations where the unfair labor practices caused bargaining to cease altogether.
Other unfair labor practices, such as the failure to provide information have provided a basis for
extending the bargaining obligation. See, e.g., Accurate Auditors, 295 NLRB 1163 (1989).
Indeed, even when the parties have, notwithstanding serious unfair labor practices, managed to
sign a collective-bargaining agreement, the Board is still willing to extend the certification as a15
remedy if the bargaining was marred by serious unfair labor practices. Outboard Marine, supra at
1348.
In considering the appropriateness and length of any extension of the certification period
the Board has explained:20
it is necessary to take into account the realities of collective-bargaining
negotiations by providing a reasonable period of time in which the Union and the
Respondent can resume negotiations and bargain for a collective-bargaining
agreement without unduly saddling the employees with a bargaining 25
representative that they may no longer wish to have represent them. Various
factors are considered in making such an evaluation, including the nature of the
violations found, the number, extent, and dates of the collective-bargaining
sessions held, the impact of the unfair labor practices on the bargaining process,
and the conduct of the Union during negotiations.30
Wells Fargo Armored Services Corp., 322 NLRB 616, 617 (1996) (footnotes and internal
quotations omitted).
In this case, I feel that the record simply does not provide adequate basis to conclude that 35
an extension of the certification year is warranted based on the Respondent’s unfair labor
practices. In reaching this conclusion, I do not intend to minimize the significance of the unfair
labor practices found. However, although there are a number of 8(a)(5) findings, their
significance to overall bargaining is unclear. Notably, no evidence was adduced to as to the
substance of the collective bargaining—we know that the parties continued to meet regularly (if 40
not particularly frequently) during the period from January 2015 to the date of the trial in early July
2015. There is no evidence at all that the failure of the parties to meet for the first time until mid-
January 2015—three and a half months after certification—was attributable to the Respondent,
much less to its unfair labor practices. The failure to bargain over the effects of Drive-Cam
implementation and the failure and/or delay in providing requested information about Drive-Cam, 45
while unlawful, is a cabined offense—it certainly does not represent a general failure to bargain
that could be said to have undermined bargaining overall. I am hesitant to make the same point
about the Respondent’s refusal as of February 26 to bargain with the Union with Jerry Davis
present—it is no more for the Board than it is for the Respondent to tell the Union whether or not
it needed Davis in order to effectively bargain. But the fact is, there is simply no evidence and no 50
obviousness that the Respondent’s unlawful conduct in this case actually undermined the
bargaining process. There is great offense to be taken in the Employer’s appropriation to itself of
JD–52–15
47
the determination of which union representatives it would bargain with—the autonomy of the
employees’ and union’s decisionmaking in this regard is legitimately understood as sacrosanct—
barring unusual circumstances. It is a fundamental principle of the Act, reflected in the statutory
language. However, I note that the General Counsel’s request for an extension of the certification
year, while briefly mentioned at trial (Tr. 28) and in the General Counsel’s posttrial brief (G.C. Br. 5
at 56), the argument is not developed. There is no explanation of why the unfair labor practices
at issue warrant extension of the certification year in this case. Without more, I am unwilling to
find that an extension of the certification year is warranted.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended29
ORDER
The Respondent Ready Mix USA, LLC, Huntsville, Alabama, its officers, agents, 15
successors, and assigns, shall
1. Cease and desist from:
(a) Maintaining the provision in Section B of its CEMEX Work Rule, No. 12, that 20
contains the following language:
The following offenses can lead to dismissal at the discretion of the
management, on the first or any subsequent recurrence after the
employee has been notified by his supervisor that the offense has 25
been made. A record of this notification will be incorporated in the
personnel records of the employee at the time it is given.
* * * * 12. Solicitation or distribution of any non-work related
materials without supervisor's permission.30
(b) Maintaining the provision in its Ready Mix USA, LLC Manual (June 10,
2010), Rules of Conduct No. 31, that contains the following language:
Prohibited conduct which may subject an employee to disciplinary 35
action, including immediate termination or demotion without notice
or warning include, but are not limited to, the following described
conducts. The disciplinary action taken will depend upon the nature
and severity of the circumstances.
40
* * * 31. Solicitation or distribution of unauthorized materials or
products to employees or customers on Company property
(emphasis in original).
(c) Failing and refusing to provide the Union with notice and an 45
opportunity to bargain over the effects on its Union-represented

29If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD–52–15
48
bargaining-unit employees at the Huntsville, Alabama facility, of the
decision to implement the Drive-Cam system.
(d) Using the Drive-Cam system as part of its disciplinary program or other
programs that affects the terms and conditions of the Union-5
represented employees at the Huntsville, Alabama facility without first
notifying the Union and offering an opportunity to bargain.
(e) Failing and refusing to furnish the Union with relevant and requested
information as to how and if videos taken with the Drive-Cam system 10
will be reviewed.
(f) Unreasonably delaying in furnishing the Union with relevant and
requested information as to the identity of Drive-Cam’s manufacturer,
the method and documentation of the images retrieved by the Drive-15
Cam cameras, and information regarding whether Huntsville is the only
location at which the Respondent utilizes Drive-Cam.
(g) Failing and refusing to collectively bargain with the Union as the
certified collective-bargaining representative of the Union-represented 20
bargaining unit employees at the Respondent’s Huntsville, Alabama
facility, by failing and refusing to meet or bargain with union
representative Jerry Davis.
(h) In any like or related manner interfering with, restraining, or coercing employees in 25
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) Rescind the provision in Section B of its CEMEX Work Rule, No. 12, that contains 30
the following language:
The following offenses can lead to dismissal at the discretion of the
management, on the first or any subsequent recurrence after the
employee has been notified by his supervisor that the offense has 35
been made. A record of this notification will be incorporated in the
personnel records of the employee at the time it is given.
* * * * 12. Solicitation or distribution of any non-work related
materials without supervisor's permission.40
(b) Rescind the provision in its Ready Mix USA, LLC Manual (June 10,
2010), Rules of Conduct No. 31, that contains the following language:
Prohibited conduct which may subject an employee to disciplinary 45
action, including immediate termination or demotion without notice
or warning include, but are not limited to, the following described
conducts. The disciplinary action taken will depend upon the nature
and severity of the circumstances.
50
JD–52–15
49
* * * 31. Solicitation or distribution of unauthorized materials or
products to employees or customers on Company property
(emphasis in original).
(c) Furnish all current employees employed at each facility for which the foregoing 5
rules were maintained with inserts for its CEMEX Work Rules and Ready Mix USA
LLC Manual that (1) advise that the unlawful provisions have been rescinded or (2)
provide lawfully worded provisions on adhesive backing that will cover the unlawful
provisions; or publish and distribute to employees at the applicable locations
revised copies of these documents that (1) do not contain the unlawful provisions, 10
or (2) provide lawfully worded provisions.
(d) Within 14 days from the date of this Order, rescind any discipline resulting from
implementation of Drive-Cam or other effects of its implementation on employee
terms and conditions of employment; and within 3 days thereafter, notify any 15
affected employee that this has been done and that the discipline will not be used
against them in any way.
(e) Notify and provide the Union an opportunity to bargain before implementing any
disciplinary measures or other effects on employee terms and conditions of 20
employment resulting from implementation of the Drive-Cam system at the
Huntsville, Alabama facility.
(f) Provide the Union with relevant and requested information as to how and if videos
taken with the Drive-Cam system will be reviewed.25

(g) Upon request, bargain with the Union as the designated collective-bargaining
representative of the Union-represented employees at the Respondent’s
Huntsville, Alabama facility, and meet with and bargain with the Union’s
designated representatives including union representative Jerry Davis. 30
(h) Within 14 days after service by the Region, post at each of its facilities copies of
the attached notice marked "Appendix." 30 Copies of the notice, on forms provided
by the Regional Director for Region 10, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and maintained for 35
60 consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps 40
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 any of
the facilities 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 45
employees employed by the Respondent at any time since September 16, 2014.

30If 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."
(i) Within 21 days after service by the Region, file with the Regional Director for
Region 10 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that
5
Dated, Washington, D.C. September
10
JD
50
the Respondent has taken to comply.
15, 2015

___________________
David I. Goldman
U.S. Administrative Law Judge
–52–15
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.
WE WILL NOT maintain work rules that contain the following language:
The following offenses can lead to dismissal at the discretion of the
management, on the first or any subsequent recurrence after the
employee has been notified by his supervisor that the offense has
been made. A record of this notification will be incorporated in the
personnel records of the employee at the time it is given.
* * * * 12. Solicitation or distribution of any non-work related
materials without supervisor's permission.
WE WILL NOT maintain rules of conduct that contain the following language:
Prohibited conduct which may subject an employee to disciplinary
action, including immediate termination or demotion without notice
or warning include, but are not limited to, the following described
conducts. The disciplinary action taken will depend upon the nature
and severity of the circumstances.
* * * 31. Solicitation or distribution of unauthorized materials or
products to employees or customers on Company property
(emphasis in original).
WE WILL NOT fail and refuse to provide the Union with notice and an opportunity to bargain over
the effects on our union-represented employees at our Huntsville, Alabama location of our
implementation of the Drive Cam system.
WE WILL NOT use the Drive-Cam system as part of our disciplinary program or other programs
that affect the terms and conditions of the Union-represented employees at the Huntsville,
Alabama facility without first notifying the Union and offering an opportunity to bargain.
WE WILL NOT fail and refuse to provide the Union with relevant and requested information about
the Drive-Cam system.
WE WILL NOT unreasonably delay furnishing the Union with relevant and requested information
regarding the Drive-Cam system.
WE WILL NOT fail and refuse to collectively bargain with the Union as the representative of
employees at our Huntsville, Alabama facility through its designated representatives including
union negotiator Jerry Davis.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL Rescind the provision in Section B of our CEMEX Work Rule, No. 12 that contains the
following language:
The following offenses can lead to dismissal at the discretion of the
management, on the first or any subsequent recurrence after the
employee has been notified by his supervisor that the offense has
been made. A record of this notification will be incorporated in the
personnel records of the employee at the time it is given.
* * * * 12. Solicitation or distribution of any non-work related
materials without supervisor's permission.
WE WILL Rescind the provision in our Ready Mix USA, LLC Manual (June 10, 2010),
Rules of Conduct No. 31 that contains the following language:
Prohibited conduct which may subject an employee to disciplinary
action, including immediate termination or demotion without notice
or warning include, but are not limited to, the following described
conducts. The disciplinary action taken will depend upon the nature
and severity of the circumstances.
WE WILL provide all current employees employed at any of our facilities for which the foregoing
rules were maintained with inserts for the CEMEX Work Rules and Ready Mix USA LLC Manual
that (1) advise that the unlawful provisions have been rescinded or (2) provide lawfully worded
provisions on adhesive backing that will cover the unlawful provisions; or publish and distribute to
employees at the applicable locations revised copies of these documents that (1) do not contain
the unlawful provisions, or (2) provide lawfully worded provisions.
WE WILL, within 14 days, remove from our files any reference to discipline of any employee that
was an effect of the implementation of the Drive-Cam system, and within 3 days thereafter, WE
WILL notify any affected employee that this has been done and that the discipline will not be used
against them in any way.
WE WILL, notify and provide the Union an opportunity to bargain before implementing any
disciplinary measures resulting from the implementation of the Drive-Cam system at our
Huntsville, Alabama facility.
WE WILL provide the Union with relevant and requested information as to how and if videos
taken with the Drive-Cam system will be reviewed.
WE WILL, upon request of the Union, bargain with the Union as the designated collective-
bargaining representative for the certified-bargaining unit of our employees at the Huntsville,
Alabama location and meet and bargain with the Union’s designated representatives including
union representative Jerry Davis.
READY MIX USA, LLC
(Employer)
Dated By
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.
233 Peachtree Street N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-140059 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (404) 331-2870.