Aggregate Industries v. National Labor Relations Board
824 F.3d 1095
D.C. Cir.2016Background
- Aggregate Industries opened Ready-Mix cement plants and negotiated a Ready-Mix Agreement (lower wages) with the Teamsters distinct from the Construction Agreement (higher wages).
- Company proposed moving material-hauling work from the Construction unit to the Ready-Mix unit; separately it asked whether the same construction drivers could be rehired under Ready-Mix terms.
- The union initially seemed to accept transfer of some hauling but later objected, particularly to transferring drivers and hauling to construction sites; talks stalled by mid-August 2010.
- Aggregate issued a dispatch order under the Ready-Mix Agreement in late September 2010; the union refused to fill it, filed an unfair labor practice charge, and parties agreed to a temporary transfer of 59 drivers pending resolution.
- The ALJ found Aggregate’s action was a transfer of work and that the employer reached impasse, allowing unilateral change; the NLRB reversed, treating the move as a change in bargaining-unit scope and finding inadequate opportunity to bargain.
- The D.C. Circuit reviewed the factual record, held the action was a mandatory work transfer (not a unit-scope change), found the union had a reasonable opportunity to bargain (or waived bargaining), and upheld a separate finding that changing affiliation of two sweeper drivers to another union was unlawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer’s action was a work transfer (mandatory) or a change in bargaining-unit scope (permissive) | Board: moving ~60 drivers reduced and altered the Construction unit’s scope, so it was a unit change requiring union consent | Aggregate: moving material-hauling work between units is a transfer of work; bargaining-unit scope was defined by job classifications, not specific tasks | Court: It was a transfer of work, not a unit-scope change; Board’s finding lacked substantial evidentiary support |
| Whether employer gave union a fair opportunity to bargain (or presented a fait accompli) | Board: July 9 statement that company “was ‘going to move’” showed fixed intent and denied meaningful bargaining opportunity | Aggregate: July 9 statement was a bargaining position; parties thought prior union admin had already agreed; later offers and Sept. 30 offer to bargain gave union a reasonable chance or reached impasse | Court: Union had a reasonable opportunity to bargain (by Sept. 30) and either waived bargaining or bargaining reached impasse; employer could unilaterally implement the transfer |
| Whether changing affiliation of two sweeper drivers to Laborers was lawful without bargaining | Union: unilateral change in affiliation required bargaining absent jurisdictional dispute | Aggregate: employer may reassign when a jurisdictional dispute exists | Court: ALJ credibility finding showed no jurisdictional dispute; employer acted unlawfully and engaged in improper direct dealing; Board’s order enforced on this point |
Key Cases Cited
- Boise Cascade Corp. v. NLRB, 860 F.2d 471 (D.C. Cir. 1988) (distinguishes mandatory work transfers from permissive unit-scope changes)
- NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958) (employer may implement unilateral changes after impasse)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence standard for Board factual findings)
- Hill-Rom Co., Inc. v. NLRB, 957 F.2d 454 (7th Cir. 1992) (distinguishes unit-description changes from transfers of work)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) (Board must credit probative circumstantial evidence)
- Regal Cinemas, Inc. v. NLRB, 317 F.3d 300 (D.C. Cir. 2003) (employer’s notice obligates union to promptly request bargaining)