Aggregate Industries v. National Labor Relations Board , 824 F.3d 1095 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2016 Decided June 10, 2016
No. 14-1252
AGGREGATE INDUSTRIES,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1276
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Richard N. Hill argued the cause for petitioner. On the
briefs was James T. Winkler. Matthew T. Cecil entered an
appearance.
Nicole Lancia, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Elizabeth A. Heaney, Supervisory
Attorney.
2
Before: WILKINS, Circuit Judge, and GINSBURG and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The evidentiary
background of this case is complicated. The law is not.
Aggregate Industries transferred work from one bargaining unit
to another over the objections of the union representing both
units. An administrative law judge found that because the
company had bargained over the issue to impasse, it was entitled
to make the change unilaterally. The National Labor Relations
Board disagreed. Aggregate Indus., 359 N.L.R.B. No. 156, at 4
(July 8, 2013) (Board opinion).1 The Board held that the
company had not merely transferred work; it had changed the
scope of a bargaining unit. Therefore, Aggregate Industries had
no right to insist that the union bargain over the issue. The
Board also held that even if the company had merely transferred
work, it had not given the union a fair chance to bargain. We
disagree with both of these conclusions. We therefore grant the
petition for review on that issue. We uphold the Board’s
decision on a collateral matter.
For the first several years of its existence, Aggregate
Industries was only a construction business, and its work was
1
The Board issued an order setting aside this decision after the
Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550(2014), that two of the Board’s members had not been validly
appointed. The Board then issued a new decision that – except for a
few minor matters – incorporated the earlier decision by reference.
See Aggregate Indus., 361 N.L.R.B. No. 80, at 1 & n.1 (Oct. 31,
2014). We cite the vacated opinion with the understanding that it has
force only to the extent the Board’s later opinion incorporated it.
3
governed by a contract with the Teamsters union – the
Construction Agreement. In 2008, Aggregate decided to “throw
some money” into the Ready-Mix concrete market. The
company started three cement plants in the Las Vegas area,
including one near Sloan Quarry, which Aggregate owned
through its construction divisions. Aggregate hired twenty or so
employees in the new division and began negotiating with the
Teamsters for a contract to govern the Ready-Mix work. The
resulting agreement, the Ready-Mix Agreement, mostly tracked
the terms of the contracts that the Teamsters had signed with
other Ready-Mix companies. But it was very different from the
Construction Agreement. Most importantly, the Ready-Mix
Agreement paid around $25 per hour and the Construction
Agreement paid around $30.
In the negotiations over the new contract, the union agreed
that Aggregate could move nine drivers from the construction
side of the business to the Ready-Mix division and drop their
pay to the Ready-Mix rate. In their new positions, these nine
employees drove oversized mining trucks in the vicinity of
Sloan Quarry. But only one of the three cement plants was at
the quarry, so the company still needed some way to do
“material hauling” – carrying its aggregate over public roads to
cement plants and construction sites. Under the union’s
contracts with other Ready-Mix companies, both kinds of work
were done under Ready-Mix agreements and paid around $25 an
hour. So the union suggested that Aggregate move more trucks,
in addition to the nine, from the construction side to the Ready-
Mix side. The union told the company that it could use
construction drivers to do the work, because at the time, the
dispatch procedure under the Ready-Mix Agreement allowed the
company to pick the drivers they preferred rather than use a
union-provided seniority list. The company would have to fire
the drivers from the construction side of the business, but it
could immediately rehire them – albeit at lower wages – to work
4
under the Ready-Mix Agreement. However, the union insisted
that if the company transferred the trucks, the move had to be
complete and permanent. After the change, the company had to
change the names on the trucks and could no longer use them for
construction work.
The company considered this possibility, but at the time,
construction work was booming. Aggregate did not want to
move trucks to the Ready-Mix division if that meant they could
not do construction work part-time. Instead, the company
decided to have drivers from the construction division do
material hauling when they were not busy with construction, and
to pay them Construction Agreement wages to do so. This was
not a dramatic change; the construction unit had occasionally
done material hauling work even before Aggregate started its
Ready-Mix operations.2 The company hoped to move those
trucks permanently, and pay the drivers Ready-Mix wages, after
the construction boom ended.
In July 2010, as two large construction projects were
winding down, Aggregate decided to follow through on its
earlier plan. The union’s leadership had recently changed, so
the company informed the new administration that it would
move trucks from the construction side of the business to the
Ready-Mix division to do material hauling work. Aggregate
knew that this would involve firing some of its construction
drivers, but it hoped to hire the same drivers again, as the
previous union administration had suggested. At a meeting on
July 9, the union seemed to concede that the company could
transfer the material hauling work, but said that maintaining the
2
Specifically, the construction drivers had sometimes hauled
aggregate to construction sites, but they had never hauled aggregate
to cement plants. The company had never needed to haul to cement
plants until it started its Ready-Mix division.
5
same drivers was not an option. The new administration had
changed the Ready-Mix dispatch procedures, and drivers could
no longer be called up by name, only by seniority. So the
company resigned itself to the fact that it would have to fire the
construction drivers and then use the new dispatch procedure to
rehire different drivers under the Ready-Mix Agreement.
A few weeks later, to the company’s surprise, the union
announced that it had a broader objection – it would not agree
to transfer material hauling work after all, even if the company
did not try to rehire the same drivers. At the earlier meeting, the
union had apparently assumed that the old administration had
signed off on the company’s plan, but after considering the
matter it concluded that this assumption was wrong.3
3
This description simplifies things a bit. Here are the details.
The old administration had suggested that the company move trucks
to the Ready-Mix division to do material hauling work, and the
company’s general counsel believed that this extended both to
hauling to cement plants and hauling to construction sites. In the
union’s view, the previous administration had agreed to transfer
trucks to haul aggregate to cement plants, but it had not agreed to
transfer trucks to haul aggregate to construction sites. The union
considered hauling to construction sites to be part of the work
traditionally governed by the Construction Agreement, and it did not
believe that the old administration would have allowed the company
to transfer such work without a fight. The dispute here is only about
hauling to construction sites. Although this is only a subset of
material hauling work, in the end that wrinkle does not matter, so we
will simply refer to hauling to construction sites as “material
hauling.”
Incidentally, the ALJ agreed with the union’s interpretation of the
old administration’s agreement. We need not decide whether the ALJ
was correct on this point. If the old administration had agreed to
transfer hauling to construction sites, this would mean that the
6
Several more weeks went by, and the parties still had not
reached an agreement. Finally, in late September the company
made the change unilaterally and put in a dispatch order for
material haul drivers under the Ready-Mix Agreement. When
the union refused to fill the order, the company announced that
it would exercise its contractual right to fill the jobs from other
sources. Aggregate advertised the positions in the local
newspaper and called a meeting of construction drivers on
October 1. The company’s general counsel told the drivers that
Aggregate wanted to keep giving them work, but if they did
material hauling, they would have to be covered by the Ready-
Mix Agreement rather than the Construction Agreement. The
company also offered a transition plan that gradually stepped
down from the construction rate to the Ready-Mix rate. Soon
afterward, the union filed the unfair labor practice charge that
turned into this case, and the parties agreed to switch fifty-nine
drivers from the Construction Agreement to the Ready-Mix
Agreement pending the outcome of the charge. After the switch,
the transferred drivers were paid Ready-Mix wages for most
work. But when those drivers did part-time construction work,
of which there was still a steady trickle, they were paid
Construction Agreement wages.
The key question here is whether Aggregate Industries
transferred work or changed the scope of the bargaining unit.
Transferring work between bargaining units is a mandatory
subject of bargaining, and the union would be obligated to
negotiate in good faith about such a proposal. Boise Cascade
Corp. v. NLRB, 860 F.2d 471, 474 (D.C. Cir. 1988); see also
NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342,
company could make the change without bargaining at all. But the
company did bargain, and it did reach impasse, so it could make the
change unilaterally regardless whether the agreement with the old
administration specifically allowed it to do so.
7
348-49 (1958). If the union refused to bargain, or if negotiations
reached an impasse, then the company could make the change
unilaterally. Boise Cascade, 860 F.2d at 474. On the other
hand, changing the scope of the bargaining unit is a permissive
subject of bargaining. Idaho Statesman v. NLRB, 836 F.2d
1396, 1400 (D.C. Cir. 1988). The parties may bargain about the
issue, but neither side is compelled to do so. Id.; see also Borg-
Warner, 356 U.S. at 349. If the union refuses to negotiate or if
negotiations stall, the company has no choice but to maintain the
status quo. A unilateral change to a permissive subject of
bargaining is illegal.4
The ALJ found that this was a transfer of work. He noted
that the complaint alleged only that Aggregate had “mov[ed] . . .
delivery of materials work from the Construction Unit to the
Ready-Mix Unit” and that the union had never argued that the
company had eliminated the construction driver positions. 359
N.L.R.B. No. 156, at 23 (ALJ opinion). The Board reversed this
4
We note that “permissive” or “nonmandatory” subjects of
bargaining are not always of this mold. Sometimes these terms appear
to imply quite the opposite. In some cases, the Board has used the
terms to mean that a party may decline to bargain about a proposal
precisely because that party has authority to decide the issue
unilaterally. For example, the Board has held that the appointment of
union stewards is a nonmandatory subject of bargaining in the respect
that unions may appoint stewards unilaterally or may bargain that right
away in exchange for other concessions. See Torrington Indus., Inc.,
307 N.L.R.B. 809, 818 (1992), abrogated on other grounds by
Furniture Rentors of Am., Inc. v. NLRB, 36 F.3d 1240, 1247 (3d Cir.
1994); see also, e.g., Cote Bros. Bakery, Inc., 259 N.L.R.B. 776, 784
(1981) (drawing a similar conclusion about internal union discipline).
The difficulty is that the terms “permissive” and “nonmandatory”
imply that the parties need not bargain, but they do not determine
whose position prevails in the absence of bargaining. In this case, we
use the terms to mean that if one party refuses to bargain about a
certain issue, both sides must maintain the status quo.
8
finding. It held that Aggregate Industries changed the scope of
the bargaining unit because it “diminish[ed] the Construction
[b]argaining unit and enlarg[ed] the Ready-Mix bargaining
unit.” Id. at 4 (Board opinion). We agree with the ALJ. We
defer to the Board’s conclusions if they are supported by
substantial evidence, see Boise Cascade, 860 F.2d at 474, but
when the Board reverses an ALJ on factual matters, we examine
the disagreement with a gimlet eye, see Universal Camera Corp.
v. NLRB, 340 U.S. 474, 496 (1951). The Board’s discretion
does not give it license to rely on an oversimplified view of the
facts or to “refus[e] to credit probative circumstantial evidence.”
Allentown Mack Sales and Serv., Inc. v. NLRB, 522 U.S. 359,
368 (1998).
The first step in characterizing Aggregate’s action is
deciding which action to characterize. The Board focused
almost entirely on the final result – the fact that “as a result of
the [company’s] action, about 60 drivers no longer bargain” in
the construction unit. 359 N.L.R.B. No. 156, at 4 (Board
opinion). In the Board’s view, moving that many drivers
“substantially reduced the size (and bargaining power) of [the
construction] unit.” Id. But the number of drivers who ended
up transferring is a red herring, and the Board was wrong to rely
so heavily on it.
The company did not transfer the drivers until after the
union filed its unfair labor practices charge and agreed to the
transfer pending the outcome of this case. The sequence is as
follows. When Aggregate made its proposal to the construction
drivers by letter on October 7, 2010, it gave them until Friday,
October 8, to accept the offer. Only about ten drivers did so.
The following Monday, October 11, the union notified the
company that the drivers were striking. Two days later the
union filed its unfair labor practice charge. The day after the
filing, union representative Wayne Dey talked to Sean Stewart,
9
Aggregate’s general counsel, and the two decided to transfer
fifty-nine drivers while the charge was pending. The upshot is
that Aggregate’s decision to transfer fifty-nine drivers was not
unilateral. Things shook out the way they did because the
parties reached an agreement pending resolution of this case.
The results of that agreement cannot be held against the
company.
If the parties had not reached an agreement, Aggregate
would likely have transferred whoever agreed to cross the picket
line, hired the rest of the drivers from other sources, and then
fired some of the surplus construction drivers to bring the unit
to the size necessary to do the remaining construction work. But
the record does not show how many drivers this would have left
in the unit.5 At one point, Aggregate indicated that it needed
twenty to thirty trucks to do material hauling work. Whether
that would have been enough to change the bargaining unit is
unclear, but it is also irrelevant – this case cannot be decided by
characterizing counterfactuals. The record is not developed on
this point. It was the Board’s job to support its evidentiary
conclusions. See Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d
227, 233 (D.C. Cir. 1996). It has not done so here. We cannot
see substantial evidence to support the Board’s finding that the
company seriously weakened the construction bargaining unit
by unilaterally transferring most of the drivers out of it.
5
As discussed above, the union objected only to part of the
material hauling transfer. See supra note 3. It agreed that the
company could transfer trucks to haul aggregate to cement plants, but
not that it could transfer trucks to haul aggregate to construction sites.
Even if we knew how many trucks the company would have
transferred, it is anyone’s guess how many of them would have been
devoted to construction hauling.
10
This brings us to the company’s proposal to the construction
drivers at the October 1 meeting and in the letter that followed.
The company went to its drivers only after the union refused to
fulfill the company’s dispatch order. If the company’s dispatch
order was proper, then the union’s refusal to fill it violated the
Ready-Mix Agreement and under the terms of that agreement,
Aggregate had the right to hire whomever it wanted, including
its construction drivers. On the other hand, if the dispatch order
was an unlawful unilateral change, then the union had a right to
refuse to fill it. Determining whether the company had the right
to issue the dispatch order requires deciding whether the union
was obligated to bargain about the issue in the first place.
Relying on the company’s proposal to its drivers, as the Board
did, thus begs the question. The propriety of that proposal
depends on how one characterizes the company’s original plan,
not the other way around. If the original plan was merely to
transfer work and the company bargained to impasse about it,
then everything that Aggregate did was proper. Conversely, if
the plan constituted a change in the bargaining unit, then the
dispatch order was an unlawful unilateral change and everything
the company did after that point was just doubling down on a
bad idea.
The crucial action here is the company’s initial proposal to
the union, and the key date is July 9, 2010. This is the date of
the meeting between company representative Sean Stewart and
union representative Wayne Dey. The Board claims that during
that meeting, Stewart told Dey that Aggregate “was ‘going to
move’ the drivers who hauled aggregate from Sloan Quarry to
construction sites from coverage under the Construction
Agreement to coverage under the Ready-Mix Agreement.” 359
N.L.R.B. No. 156, at 2 (Board opinion). But that description of
events conflates two distinct proposals. First, Stewart told Dey
that the company planned to move material hauling work from
the Construction Agreement to the Ready-Mix Agreement.
11
Second, Stewart asked Dey whether it would be possible to use
the same drivers, who at that time worked under the
Construction Agreement, to do the newly transferred work under
the Ready-Mix Agreement. Dey gave different answers to each
of these plans. The substance of those answers are significant,
as we will explain in a moment. For now, it is enough to note
that Dey recognized that he was dealing with two discrete
proposals.
At most one of those two proposals could be considered a
change in the bargaining unit. Even if the union were free to
refuse to bargain about transferring the drivers, it still had a duty
to bargain over any aspects of the proposal that were mandatory
subjects of bargaining. The company’s plan to move material
hauling work from the Construction Agreement to the Ready-
Mix Agreement was a straightforward work transfer. Indeed,
once it is distinguished from the separate plan to transfer drivers,
it is hard to see how it could be anything else.
In some cases, distinguishing between work transfers and
bargaining unit changes is difficult. This is not such a case.
Most of the thorny disputes about this issue arise when a
bargaining unit is defined in terms of the work it performs. If a
bargaining unit is so defined, a work transfer changes the scope
of the unit by definition, and “the same facts can be put in either
category with equal plausibility . . ..” Hill-Rom Co., Inc. v.
NLRB, 957 F.2d 454, 460 (7th Cir. 1992) (Easterbrook, J.,
dissenting).
But when the bargaining unit is not defined in terms of the
work the employees perform, the distinction is not so
evanescent. In that situation, transferring work out of the unit
does not necessarily change the unit’s scope, and characterizing
an employer’s action is more straightforward. That is what we
have here. The Board found that both the Construction
12
Agreement and the Ready-Mix Agreement defined their
bargaining units in terms of “job classifications,” not in terms of
the work the unit employees perform. 359 N.L.R.B. No. 156, at
3. And none of those job classifications unambiguously covers
material hauling work.6
The Board recognized that this case does not present the
“particularly” difficult situation in which a bargaining unit is
defined in terms of the work it does. Nevertheless, the Board
insisted that even when a bargaining unit is not initially so
defined, “once a specific job has been included within a
bargaining unit, the employer cannot remove it without the
consent of the union or action by the Board.” 359 N.L.R.B. No.
156, at 3 (Board opinion) (citing Wackenhut Corp., 345
N.L.R.B. 850, 852 (2005)); see also 361 N.L.R.B. No. 80, at 1
n.1 (Oct. 31, 2014). According to the Board, this means that
because Aggregate assigned material hauling work to the
construction drivers, the transfer necessarily changed the scope
6
Aggregate argues that industry practice makes clear that the
Ready-Mix classification “Transport Drivers (S[and] & G[ravel])”
includes material haul drivers. The testimony of an executive from a
competing Ready-Mix company supports this assertion. And in at
least one place the Construction Agreement seems to suggest that it
does not cover hauling to construction sites. Article 4 Section 8 of the
agreement states that “[l]egitimate vendors of materials” may deliver
materials to supply piles at construction sites, but drivers “covered
under this Agreement” must take those materials from the supply piles
to work sites. Joint Appendix 302. However, the Construction
Agreement also states that “employees covered by this Agreement
shall continue to be assigned all work which they have historically or
customarily been assigned by the Employer to perform.” Joint
Appendix 298-99. And it includes job classifications for “[d]rivers of
dump trucks” and “[t]ransport [d]rivers.” Joint Appendix 332-33. In
short, either agreement could plausibly cover material hauling work.
13
of the construction unit, and the company could not make the
change without the union’s consent.
That cannot be right. If an employer had to obtain the
union’s consent every time it removed a work assignment from
the unit where it “has been included,” then every work transfer
would require union consent, and the Board’s line of cases
distinguishing between work transfers and bargaining unit
changes would be meaningless. 359 N.L.R.B. No. 156, at 3
(Board opinion). Unsurprisingly, the precedents the Board cited
– Wackenhut Corp., 345 N.L.R.B. 850 (2005); Holy Cross
Hospital, 319 N.L.R.B. 1361 (1995); and Hampton House, 317
N.L.R.B. 1005 (1995) – do not support this conclusion. In both
Wackenhut and Holy Cross, the employers did not simply move
work between positions in different units; they effectively
eliminated the position that had initially done the work. In
Hampton House, the Board discussed the issue only as
background, and in the end it found that the change in question
was a work transfer. 317 N.L.R.B. at 1005, 1008-10. All three
Board decisions took this proposition nearly word-for-word
from the Seventh Circuit’s opinion in Hill-Rom, 957 F.2d at 457.
But Hill-Rom was clear that “modify[ing] th[e] position” means
making “unilateral changes in the unit description.” Id. (italics
added); see also Boise Cascade, 860 F.2d at 475 (“[U]nilateral
changes in the unit description are unlawful . . ..” (italics
added)). The next page of the Hill-Rom opinion reaffirmed that
“assigning work previously performed by unit employees to
other employees outside the unit is perfectly consistent with
transfer of work . . ..” 957 F.2d at 458. In the end, Hill-Rom
also held that the employer’s action at issue – unilaterally
eliminating two positions and placing the employees’ duties in
a new classification outside the unit – was a work transfer rather
than a change in the bargaining unit. Id. at 455-56, 459.
14
We therefore find that the company’s proposal is best
classified as a transfer of work. The Board reached the opposite
conclusion only by combining the work transfer proposal with
a separate proposal to use the same drivers. But the parties
treated the two proposals as distinct, and we do so as well.
Considered in isolation, moving material hauling from one
agreement to the other did not implicate the scope of either
bargaining unit, because the scope of those units did not depend
on doing any particular work.
A work transfer is a mandatory subject of bargaining, so the
union was obligated to bargain with the company about its
proposal. At the July 9 meeting and for several months
afterward, the company made overtures to the union, offering to
discuss the plan to transfer material hauling work. However,
after some initial hesitation, by mid-August the union had
decided that it could not agree to the plan. It doggedly
maintained that position until the end of September, when
Aggregate made the change unilaterally. By stonewalling the
company in this way, the union waived its opportunity to
bargain. At the very least, if the union’s feeble efforts counted
as bargaining at all, the two sides quickly reached an impasse.
Either way, the company tried to bargain and got nowhere. It
therefore had a right to implement its plan unilaterally.
The Board held that even if the company’s proposal was a
work transfer, the union was not obligated to bargain because
the company did not give it any opportunity to do so. See, e.g.,
Int’l Ladies’ Garment Workers Union, AFL-CIO v. NLRB, 463
F.2d 907, 919 (D.C. Cir. 1972). Instead, the Board found that at
the July 9 meeting, Aggregate merely presented the union with
a fait accompli rather than a good faith bargaining proposal.
See Pontiac Osteopathic Hosp. & Int’l Union, 336 N.L.R.B.
1021, 1023 (2001) (“[A] union cannot be held to have waived
bargaining over a change that is presented to it as a fait accompli
15
. . ..”). Of course, at that time the company was still months
away from putting in its dispatch order, so the fait was far from
accompli. But the Board believed that a fait accompli was still
possible because the company had a “fixed intent to transfer the
disputed drivers and their work.” 359 N.L.R.B. No. 156, at 5
(Board opinion).
In coming to this conclusion, the Board relied heavily on
Sean Stewart’s statement at the July 9 meeting that the company
was “going to move” the material hauling work, not that it was
“considering” doing so. 359 N.L.R.B. No. 156, at 5 (Board
opinion). According to the Board, this way of phrasing things
“presented the Union with no opportunity for meaningful
bargaining.” Id. We doubt that unions are so easily cowed.
The National Labor Relations Act requires employers to
bargain; it does not require them to be bad at it. When
Aggregate said it was “going to move” the work, it was
announcing a bargaining position. The fact that the company
did not hedge its proposal with “what-ifs” and “maybes” does
not mean that it was unwilling to negotiate.
The Board’s cases addressing this issue have consistently
recognized that “where a union receives timely notice that the
employer intends to change a condition of employment, it must
promptly request that the employer bargain over the matter.”
Ciba-Geigy Pharm. Div., 264 N.L.R.B. 1013, 1017 (1982)
(italics added); Dresser-Rand Co., 358 N.L.R.B. 854, 889
(2012), incorporated by reference in Dresser-Rand Co., 362
N.L.R.B. No. 136 (June 26, 2015). So even if Aggregate
expressed an “intention” rather than a “proposal,” the union was
not excused from requesting bargaining unless the company was
16
so obstinate that the request would have been futile.7 See Regal
Cinemas, Inc. v. NLRB, 317 F.3d 300, 314 (D.C. Cir. 2003).
Aggregate’s actions at the July 9 meeting did not amount to
the “pronouncement of a final and unqualified decision.”
Gratiot Cmty. Hosp. v. NLRB, 51 F.3d 1255, 1260 (6th Cir.
1995). The reason the parties did not bargain, or plan to
bargain, during that meeting was not that the company was
dead-set on its proposal. The reason was that at that time, both
the company and the union believed that the union’s previous
administration had already agreed to the plan. In their minds,
the bargaining about whether to transfer material hauling work
to the Ready-Mix Agreement was already over and done.
7
The Board’s original decision relied on a case stating that “if
the notice is too short a time before implementation, or [if] the
employer has no intention of changing its mind, then the notice is
nothing more than informing the union of a fait accompli.” 359
N.L.R.B. No. 156, at 4 (italics added) (citing Dresser-Rand, 358
N.L.R.B. at 889). However, when the Board vacated and then
reinstated the decision, it explicitly disclaimed reliance on Dresser-
Rand. 361 N.L.R.B. No. 80, at 1. It was right to do so. In every other
case invoking this passage, the focus has been on the timing and
method of the notice, not on the employer’s subjective intentions. In
Dresser-Rand itself, the ALJ relied on the fact that the employer gave
the union less than forty-eight hours notice over a weekend. 358
N.L.R.B. at 889-90. In NLRB v. Centra, Inc., 954 F.2d 366 (6th Cir.
1992), the Sixth Circuit found that the employer had “made its
decision . . ., implemented its plan secretly, and failed to consult [the
union] or to properly inform the union of its intention . . . until it was
too late to bargain.” Id. at 372. And in Ciba-Geigy, the Board found
a fait accompli because the employer never informed the union of its
plan; the union found out only when the company sent a letter to all
employees announcing the new policy. 264 N.L.R.B. at 1015.
17
The July 9 meeting was not the union’s only opportunity to
bargain. In August, after the union rethought its position and
announced that it was objecting to the plan, both sides
exchanged correspondence. The union offered to discuss
several aspects of Aggregate’s reorganization, but it would not
budge on the work transfer. Eventually, on September 24, the
company issued its dispatch request. The union did not fill the
request by the deadline, but still the company offered an olive
branch. In response to a suggestion from the union’s attorney,
Aggregate proposed transition rates for existing drivers so they
could gradually step down from the Construction Agreement
wages to the Ready-Mix Agreement wages. On September 30,
Aggregate offered to bargain over the proposal. The union
again refused, and eventually Aggregate made its offer directly
to the drivers.
Significantly, the ALJ found that “[Wayne] Dey
understood” that this September 30 offer to bargain “would have
opened the entire transfer of work issue for discussion.” 359
N.L.R.B. No. 156, at 20 (ALJ opinion). The Board gave no
reason for rejecting this finding of fact, and we see none.
Therefore, we accept that on September 30, the union had an
opportunity to bargain about the work transfer and declined to
do so.
In short, “in the light of all the circumstances,” the union
had the “reasonable opportunity” to bargain about the work
transfer at least on September 30, and probably as early as July
9. Rose Arbor Manor, 242 N.L.R.B. 795, 798 (1979). The
union either waived its right to bargain entirely or insisted on its
position until the parties reached an impasse. Either way, after
bargaining failed the company had the right to unilaterally
transfer the work.
18
Because the company had the right to unilaterally transfer
material hauling work, the union acted improperly when it
refused to fill the company’s dispatch order. Under Article 3 of
the Ready-Mix Agreement, Aggregate therefore had the right to
hire anyone it wanted, including its own drivers. This means
that Aggregate did not engage in unlawful direct dealing when
it made its proposal to the construction drivers. The union
bargained away its right to avoid such direct dealing when it
agreed to allow the company to “procure workers from any
source . . . [r]egardless of union affiliation” if the union did not
fill a dispatch order. Joint Appendix 360.
We therefore grant the petition for review and deny the
application for enforcement of all aspects of the Board’s order
addressing the company’s decision to transfer material hauling
work.
There is one collateral matter we need to address. The
union filed a second unfair labor practices charge alleging that
the company improperly changed the affiliation of two sweeper
truck drivers from the Teamsters union to the Laborers union.
Such an action is at least a work transfer, if not a change in the
bargaining unit, and thus Aggregate was obligated to bargain
about it. Aggregate admits that it made this change without
consulting or even notifying the Teamsters. The company
argues that this was proper because if two unions are engaged in
a jurisdictional dispute, an employer may make such a change
without consulting the union. See J.L. Allen Co., 199 N.L.R.B.
675, 675-76 (1972). But there was no jurisdictional dispute
here. The ALJ credited the testimony of Aggregate’s
transportation manager, who “denied that the Laborers [had]
ever demanded that its members perform [Aggregate’s] sweeper
driver job duties.” 359 N.L.R.B. No. 156, at 23 (ALJ opinion).
This credibility determination was reasonable, and it was
certainly not “hopelessly incredible.” Capital Cleaning
19
Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998).
The company also engaged in unlawful direct dealing by
negotiating with these employees in the absence of a
jurisdictional dispute. On these points, we deny the petition for
review and grant the application for enforcement.
So ordered.