Case Information
*1 In the
United States Court of Appeals For the Seventh Circuit
Nos. 99-3634, 99-3994
Naperville Ready Mix, Inc., et al., Petitioners/Cross-Respondents, v.
National Labor Relations Board, Respondent/Cross-Petitioner, and
Teamsters Local 673,
Intervening Respondent/Cross-Petitioner.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board Nos. 13-CA-31031, et al.
Argued September 28, 2000--Decided March 6, 2001 Before Manion, Rovner, and Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. Richard Wehrli owned several companies in Naperville, Illinois, which were involved in the concrete and trucking businesses. This case arose when one of the companies, Naperville Ready Mix, Inc. (NRM), decided to change the way that it would deliver concrete. The National Labor Relations Board (the Board) concluded that NRM and several other of Wehrli’s companies were a single employer for purposes of the labor laws, and it further found that the company had violated various sections of the National Labor Relations Act (the Act) through its efforts to transfer bargaining unit delivery work from employees to alleged independent owner-drivers. NRM and its affiliates, T&W Trucking, Inc. (T&W), and Wehrli Equipment Co. (WEC), have asked us to set aside the Board’s order requiring reinstatement of certain drivers and restoration of the bargaining unit work; the Board requests enforcement of its order. We conclude that the Board’s order is supported by substantial evidence and the law, and we thus conclude that it is entitled to enforcement.
I
Wehrli incorporated NRM in 1960, with himself and his wife Judith Wehrli as the only stockholders. Wehrli served as NRM’s president, and as of 1992 the company’s board consisted of Richard and Judith Wehrli, Richard’s brother-in- law Jerome Doll and the Wehrlis’ son Robert. In 1978, Wehrli incorporated WEC to provide repair services for NRM dump trucks and other trucks at NRM’s facility on High Grove Street in Naperville. Wehrli is the sole shareholder of WEC; he served on its board of directors through 1992, when he was replaced by his son Scott. In 1987, Wehrli and a supervisor at NRM, Robert Tilly, added T&W trucking to the family of companies. Through 1992, they were T&W’s sole directors and shareholders. At the time of the events relevant to this case, T&W was providing hauling services for only two companies: NRM and one other.
Ready-mix truck drivers at NRM were covered by a collective bargaining agreement that Wehrli had originally negotiated with Teamsters Local 673 (the Union) in 1986. On April 21, 1992, NRM and the Union began negotiating a successor agreement for the one that was due to expire nine days later, on April 30. The Union’s principal representative was its Secretary-Treasurer, Tom Custer, while Wehrli spoke for NRM. At the initial meeting, the Union presented a comprehensive written proposal seeking increased wages and pension benefits as well as improved job protection standards for the drivers. NRM rejected the proposal and countered with a one- year roll-over offer, with a few revisions to the health and pension plan provisions. Wehrli argued that concessions from the Union were necessary because of increased competition and declining profit margins in the ready-mix business. In the absence of concessions, he warned, he would either have to suspend trucking operations until the market improved or get out of the hauling business altogether.
When the parties met again on May 7, the Union tried to take the contract items one-by-one. NRM was not receptive to this tactic; Wehrli saw it as a ploy by the Union to win benefits comparable to those it had secured with the Northern Illinois Ready Mix Association (NIRMA), a local multi-employer bargaining group. Wehrli claimed that NRM was losing money on the delivery portion of its business, and he announced that he wanted to sell NRM’s trucks and operate with owner- operator subcontractors. Custer responded by saying that if NRM were to make such a move it would have to become a party to the NIRMA *3 agreement (as other similarly situated companies had done), which gave owner-operators the protections of union membership. Custer also commented that the Union was there to negotiate a contract, not to help NRM sell its trucks. On May 12, Wehrli sent Custer the following letter:
I have decided to go out of the trucking business and am offering to sell my trucks to my present drivers first, and then any leftover trucks will be offered to outsiders. I intend to use individual contractors for all my trucking needs. If you want any discussion with me in this regard feel free to call.
Custer saw this letter as a part of the overall bargaining give-and-take, as it reflected the position Wehrli had taken at the two previous bargaining sessions. He therefore saw no need to, and did not, specifically reply to the letter. The parties held another bargaining meeting on May 14, at which they made some progress. The Union agreed to remove certain demands, and NRM agreed to modify the language in several contract clauses. Wehrli continued to assert that he intended to sell the trucks. To this end, he introduced a proposal to delete Article 24 from the contract. Article 24 provided that certain owner-operator subcontractors would be treated like bargaining unit employees for purposes of wages, union security, and benefits. Wehrli wanted it deleted because it would have defeated much of the point of his plan to sell NRM’s ready-mix trucks and to rely on subcontract haulers. He made it clear that under his proposal, the new subcontract haulers would not be members of the NRM employee bargaining unit. On May 15, he reduced his proposal to writing. Without waiting for the Union’s response, Wehrli proceeded to hold meetings with NRM’s drivers on May 20 and May 27. The Union had no notice of these meetings and did not approve them. At the meetings, Wehrli discussed the financial difficulties he faced and informed the drivers of his intention to sell the trucks. He promised that he would make the trucks available for purchase by current drivers and that he would assist them with the logistics of becoming owner operators and with financing the purchase of the trucks. Wehrli also stated as a fait accompli that if the drivers became subcontractors they would no longer be covered under the Union’s contract with NRM. Finally, he informed the drivers that as trucks were sold to current NRM and outside drivers, current drivers who had not purchased trucks would be laid off in reverse *4 order of seniority.
After Wehrli’s May 20 meeting, Custer met with the drivers to discuss the status of the negotiations. The union members voted to reject NRM’s May 15 proposal, and they authorized the Union to call a strike. Custer explained that a strike was premature, because the parties were still negotiating.
In the meantime, Wehrli was proceeding unilaterally with his sales plans. By June 1, 1992, he had found two buyers for the trucks--his son Robert and a current driver, Richard Downs. He also placed advertisements in local trade papers, which yielded the names of ten prospective outside buyers. By the last week in June, Wehrli had handshake agreements with five individuals to sell nine trucks. Between June 28 and 30, he transferred title in those trucks to the new owners.
The financial terms that Wehrli set for the truck sales were favorable for the purchasers, but in return they gave up almost all control over the use of the trucks. No down payment was necessary, and Wehrli supplied the necessary financing. Each new owner-operator was to be paid $14 per cubic yard hauled, out of which $1 would go to pay principal on the debt. Wehrli retained a security interest in the trucks, under which he was entitled to find a buyer in default if NRM had a good faith belief that the driver was failing to perform the terms of the sales contract. Most importantly, there was a "first priority" provision that required the buyers to give first priority to the hauling needs of NRM so long as NRM provided reasonable notice of its intent to use the subcontractor; this requirement continued until the principal on the truck was paid off. The sales contract forbade the buyers from working for NRM’s competitors within a fifteen mile radius of NRM’s plant. The new owner-operators were also entitled to purchase subsidized fuel at the NRM facility and to call on NRM and WEC mechanics to perform all truck repairs. Finally, owner-operators were encouraged to store their vehicles at the NRM facility free of charge.
On July 1, five owner-operator subcontractors began hauling for NRM under these terms. Except for the nominal change in ownership of the trucks and the fact that the new drivers were not part of the bargaining unit, there were no meaningful changes in the day-to-day business of hauling at NRM. The owner-operators all hauled exclusively for NRM; they received their hauling assignments from the same individuals and according to essentially the same procedures as the unit *5 employee drivers had; they attended the same monthly safety meetings that NRM had always held; and they refueled, repaired, and stored their trucks at the High Grove Street facility. Meanwhile, throughout June and July, the collective bargaining negotiations with the Union continued. There was at least one meeting in early June, and on June 15 the parties met with a federal mediator. The Union modified its offer at that meeting, as did NRM. Wehrli continued to insist on a one-year roll-over and the deletion of Article 24, but he proposed wage and benefit adjustments modeled after the Union’s recently ratified contract with NIRMA. Union members rejected NRM’s offer and two days later they went on strike. NRM and the Union held brief meetings June 21 and 22. At the June 22 meeting, Custer asked Wehrli how the strike might be resolved, and Wehrli responded that it was too late to resolve the strike because the trucks had already been sold. Custer requested information documenting the sales, but he did not receive it. Wehrli followed up the June 22 meeting with a letter to Custer declaring that the parties had reached impasse on the proposal to sell the trucks and subcontract NRM’s hauling business. Custer rejected that claim, and the parties met again on June 25. The Union offered another modified contract proposal. NRM rejected it and instead responded on the same day with a faxed "Final Contract Proposal." On July 1, non-unit subcontractors began delivering NRM’s ready mix, and the parties held another negotiating meeting. The Union made additional concessions, and Custer told Wehrli that it would be willing to consider appropriate modifications of Article 24. At this meeting, Custer also repeated his request for information regarding NRM’s sale of its trucks. The next day, the Union’s counsel sent a letter formally requesting information regarding terms and conditions of the sale of the trucks. NRM responded with a letter stating that it did not believe that the information was relevant to the ongoing collective bargaining negotiations and that the Union had to demonstrate the relevance of each document it sought access to before NRM would disclose it. The Union did not respond. The parties met again in late July and in early August. At the August 7 meeting, the Union made a series of new proposals which NRM rejected. Finally, on August 18, NRM informed the Union by letter that it intended to sell all its remaining trucks and proposed the elimination of an additional term in the collective bargaining agreement. In the letter, NRM reminded the Union that it considered the parties to be "at an *6 impasse on the issue of [NRM’s] plan to subcontract all delivery work," but assured the Union that NRM continued to be willing to negotiate other aspects of the collective bargaining agreement.
The strike that began June 17 continued throughout this period of negotiation. Wehrli, who had already encouraged unit workers to take part in his plan to shift unit hauling work to subcontractors at the employee meetings in May, continued to talk to the striking workers about it on the picket line. Wehrli informed the strikers that he was selling his trucks and that if they wanted to continue hauling for NRM they would have to become owner-operators. He explained that once the trucks were sold there would be no more work for them. Wehrli also told striking workers that they could avoid Union sanctions for crossing the picket line by signing documents making them "financial core" members. NRM subsequently included instructions on how to become a financial core member and a form for doing so in paychecks distributed to the strikers.
Despite these efforts, most of the NRM drivers chose to remain loyal to the Union and continue the strike. In February of 1993, Custer sent NRM a letter stating that twenty-four named strikers wanted to return to work unconditionally. NRM refused to reinstate them.
The Union filed a number of charges with the National Labor Relations Board during the course of these events. Based on these charges, the General Counsel ultimately issued a consolidated complaint against NRM and its affiliated companies. The complaint began by asserting that NRM, T&W, and WEC comprised a single employer, as did NRM and six other corporate entities (representing the "new" independent trucking companies that took ownership of some of the vehicles). Substantively, it claimed that NRM (meaning for our purposes the whole group) violated sections 8(a)(5), (3), and (1) of the Act in several respects: by interfering with the employees’ union activities through interrogation and threats (section 8(a)(1)); by direct dealing with represented employees, unilaterally transferring bargaining unit work to non- bargaining unit employees, and refusing to provide information to the Union (sections 8(a)(5) and (1)); and by discharging unit employees whose work had been reassigned and refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work (sections 8(a)(3) and (1)).
The administrative law judge dismissed the
*7
charges in their entirety, but the Board
reversed.
II
In reviewing the Board’s decision, we give
substantial deference to both its findings of
fact and its interpretations of the Act. Factual
determinations must be upheld if they are
supported by substantial evidence on the record.
29 U.S.C. sec. 160(e). See NLRB v. Roll & Hold
Warehouse & Dist. Corp.,
A. Single Employer Status
NRM first challenges the Board’s conclusion that
NRM, WEC, and T&W are a single employer for
purposes of liability under the Act. We must
decide first whether the legal standard the Board
used to make this determination was a permissible
one. If it is, then the single employer finding
is a factual determination subject only to
substantial evidence review. NLRB v. Emsing’s
Supermarket, Inc.,
The Board acts within its discretion when it
treats as a single employer firms that operate as
an integrated enterprise and "exert[ ]
significant control over" the employees in
question. G. Heileman Brewing Co. v. NLRB, 879
F.2d 1526, 1530 (7th Cir. 1989). In this case,
the Board used its standard four factor test to
determine whether the companies were sufficiently
integrated to constitute a single employer: (1)
common management; (2) centralized control of
labor relations; (3) interrelation of operations;
and, (4) common ownership or financial control.
See Radio and Television Broadcast Technicians
Local Union 1264 v. Broadcast Service of Mobile,
*8
Inc.,
On the facts, we find that the Board’s single employer finding is adequately supported by substantial evidence. First, as the Board noted, there is evidence of common ownership. Wehrli and his wife owned NRM; Wehrli was the sole owner of WEC; and Wehrli owned 50% of T&W. There is also substantial evidence of shared management. Wehrli was an officer in each of the companies; he was president of NRM and WEC and he was secretary, and one of only two directors, of T&W. The other director of T&W, Bob Tilly, was a maintenance supervisor at NRM and assumed management responsibilities at WEC on or shortly before July 1, 1992. As the Board pointed out, the only other individuals involved in the management of these companies were Wehrli’s wife, his son Scott, and Jerry Doll. Wehrli also testified before the ALJ that in the first four months of 1992 it was his daily practice to "come in and spend time with each of the managers and officers and whatever titles they had of the various companies and we would go over major problems or issues that they had that they were working on." Finally, there was evidence of operational integration among the three companies, including a shared location, informal sharing of labor among the companies, and the fact that T&W and WEC served primarily, if not exclusively, the hauling and maintenance needs of NRM. Under these circumstances, the Board was entitled to conclude that the companies shared common ownership and management.
Indeed, the only factor where the record does not strongly support the Board’s conclusion is the one NRM has targeted: whether there was centralized control of labor relations. *9 Nonetheless, there is significant evidence that such centralized control existed, and even if it did not extend to all three companies, the absence of one factor is not fatal to the Board’s conclusion. There is no dispute that Wehrli controlled labor relations for NRM. He was president of the company and represented it during negotiations with the Union. With respect to T&W, Wehrli was one of only two directors and on at least one occasion it was Wehrli rather than Tilly who met with the T&W workers to inform them of the consequences of not continuing to work during the NRM drivers’ strike. As the Board concedes, there is little direct evidence that Wehrli controlled labor relations at WEC, but the record permits the inference that he did so. He was president of the company, regularly involved himself in the management of WEC, and exercised substantial control over major budgetary decisions. The record also suggests that it was Wehrli who directed the use of WEC and NRM employees in constructing a new ready-mix batch plant for NRM at the High Grove Street facility. Taken as a whole, substantial evidence indicates that NRM, WEC, and T&W were highly integrated and that Wehrli, assisted by a small group of primarily family members, exercised substantial control over all aspects of the companies’ affairs. We therefore find that the Board’s decision to treat them as a single employer is entitled to enforcement.
B. Failure to Bargain
The Board’s decision in this case rested on one
fundamental finding: that NRM’s sale of its
trucks was part of a plan to shift unit work to
non-bargaining unit subcontractors, and that this
plan was a mandatory subject of bargaining. NRM
has urged all along (successfully to the ALJ)
that it made an entrepreneurial decision to go
out of the trucking business and that it
therefore had no obligation to bargain with the
Union over this plan. The Board rejected this
contention, finding that NRM had not changed the
basic nature of its operations. Instead,
motivated by the desire to reduce labor costs,
"NRM merely replaced the employees driving trucks
with other employees under the ’owner-operator’
rubric (or in some cases the same employees under
the new title), maintaining essentially the same
control over them that it had always enjoyed."
Before addressing the Board’s decision on the
merits, it is important to explain how the truck
sales should, and should not, be assessed. NRM
has devoted considerable energy in its appellate
briefs to explaining why the sales were not "sham
transactions," as that term is used in alter ego
or single employer cases. See, e.g., NLRB v. Dane
County Dairy,
The Board’s conclusion that NRM’s plan to shift
its hauling business away from the bargaining
unit and to subcontractors was a mandatory
subject of bargaining is both based on a
reasonable interpretation of the Act and
supported by substantial evidence in the record.
Section 8(a)(5) of the Act requires an employer
to "bargain collectively with the representatives
of his employees." The Act defines collective
bargaining as "the performance of the mutual
obligation of the employer and the representative
of the employees to . . . confer in good faith
with respect to wages, hours and other terms and
conditions of employment." 29 U.S.C. sec.158(d).
The Board appropriately relied on Fibreboard
Paper Products Corp. v. NLRB,
In this case, the Board properly found that NRM’s sale of its trucks was simply an element of its plan to switch unit work to lower-cost subcontractors and that under Fibreboard this plan could not be implemented until impasse had been reached. The record amply supports this characterization. Before and after July 1, 1992, NRM’s business involved the delivery of ready-mix concrete to its customers. Neither the scope nor the manner of this aspect of its business changed in any way after July 1. To the contrary, Wehrli ensured that things would stay functionally the same by carefully structuring the sale of NRM’s trucks to give NRM nearly complete control over how the trucks were used. After July 1, the same trucks were still hauling exclusively NRM’s product; the drivers still received their orders from the same dispatcher and in accordance with essentially the same procedures previously used; and the trucks were still refueled, repaired, and stored at the High Grove Street site. The only identifiable difference in how NRM hauled ready- mix concrete after July 1 was that the drivers of the trucks were no longer covered by the Union’s collective bargaining agreement.
There is also substantial evidence in the
record that NRM’s motivation for switching to
subcontract haulers was to save on labor costs.
Wehrli himself admitted that this was what he was
doing, and his statements at the negotiating
meetings leave no doubt about the matter.
Wehrli’s own testimony is sufficient to support
the conclusion that the plan to move to an owner-
operator system was motivated by a desire to
reduce labor costs. This is precisely the kind of
concern that Fibreboard and First National
Maintenance instruct is particularly amenable to
resolution through collective bargaining. 379
U.S. at 214;
We agree with the Board that this case is governed by Fibreboard. At oral argument NRM argued strenuously that it was entitled to sell its trucks, but that is not the point. What NRM was not entitled to do under these circumstances was to shift unit work to non-union subcontractors without first bargaining to impasse with the Union. Of course, had NRM *12 negotiated to impasse before transferring the work, there would have been no violation of the Act. We turn now to the question of whether it did so, or, if not, whether the Union waived its right to bargain over the issue.
C. Negotiating to Impasse
An employer violates sections 8(a)(1) and (5)
of the Act when it unilaterally changes a
condition of employment that is a mandatory
subject of bargaining before bargaining has
reached an impasse. NLRB v. Katz,
NRM’s contention that the parties had reached impasse on the subcontracting issue is precisely the kind of partial impasse argument foreclosed by Duffy. Partial impasse does not justify unilateral implementation of the contested item, and it is clear both that nothing approaching total deadlock had occurred between the Union and NRM at the time NRM unilaterally sold the trucks, and that NRM’s decision to sell the trucks was not part of a larger plan to go out of business. As our earlier review of the course of events shows, collective bargaining negotiations were ongoing until at least August 7 or 18, long after NRM implemented its truck sale plan.
NRM contends in the alternative that it was not
required to negotiate to impasse because the
Union had waived its right to bargain over the
issue of subcontracting. Duffy recognized that
there could be exceptions to the overall impasse
rule in the event that the employer could
demonstrate that the union waived its right to
bargain over a particular proposal or that the
company would suffer severe economic consequences
from a delay in implementation.
D. Failure to Provide Relevant Information
*14
Section 8(a)(5) of the Act imposes on the
employer a duty to bargain in good faith. This
duty encompasses an obligation on the employer to
disclose information relevant to the bargaining
process. NLRB v. Truitt Mfg. Inc.,
The Board concluded that NRM violated sections 8(a)(5) and (1) of the Act by failing to give the Union the requested information about the sale of its trucks. At the July 1, 1992, negotiating session, Wehrli indicated to Custer that it was too late to negotiate a contract with NRM that covered the NRM drivers, because the trucks they had been driving had already been sold. Custer testified that he promptly asked Wehrli to provide him with documentation of the sales. On July 10, counsel for the Union sent a letter again requesting information regarding the nature and terms of the truck sales. Rather than providing the requested information, NRM’s counsel responded with a letter disputing the Union’s right to have access to the information and demanding that the Union explain how "each of the documents requested is reasonably calculated to elicit information which the Union may need to properly represent its members and a citation to case authority which supports the request." The Union chose not to respond and instead filed an unfair labor practices charge.
On these facts, there is again ample evidence
to support the Board’s conclusion that NRM
violated the Act. The Union’s request for
information arose directly out of a subject the
parties were discussing in connection with their
collective bargaining. Under the Court’s
reasoning in Truitt,
E. Direct Dealings, Negotiations, and Threats
Implicit in the obligation to bargain in good
faith "is the principle that the employer is not
to go behind the union’s back and negotiate with
individual workers, nor otherwise to undermine
the union’s status as exclusive bargaining
representative." Szabo v. U.S. Marine Corp., 819
F.2d 714, 718 (7th Cir. 1987); see also Medo
Photo Supply Corp. v. NLRB,
We see no need to lengthen this opinion with
yet another rehearsal of the facts. Wehrli’s
meetings with the drivers while negotiations were
still underway and his warnings that those who
did not buy a truck would be laid off support the
Board’s findings. NRM attempts to cast these
meetings as nothing more than occasions during
which Wehrli was providing accurate information
to employees about a "business opportunity." In
the context of the ongoing collective bargaining
negotiations over the very proposal at issue,
however, we find the Board’s characterization
more accurate: "[T]he meetings were efforts to
enlist the employees in the sham transactions by
which [NRM] would carry on the ready mix delivery
operations without the obligations or costs of a
union contract."
With respect to the section 8(a)(1) violation that the Board found in connection with Wehrli’s statements that the employees would lose their jobs if they did not accept the terms of NRM’s subcontracting plan and that subcontractors would not be members of the collective bargaining unit, the record again supports the Board. We find no merit in NRM’s procedural objection to the effect that the charges complaining of the alleged threats made at the meetings and to individual NRM employees were not timely filed. The threat *16 charges arose from the General Counsel’s investigation into precisely the situation about which the Union had complained in its charge filed June 9, 1992. The threat charges properly related back to the June 9, 1992 complaint, and the Board properly considered them.
NRM’s argument on the merits that the employees
could not have seen these statements as
"threats," because Wehrli was simply inviting the
employees to negotiate new agreements as owner-
operators, is meritless as well. To constitute a
prohibited threat under the Act, a statement must
only "reasonably tend[ ] to interfere with,
restrain, or coerce employees in the free
exercise of their protected rights." NLRB v. Q-1
Motor Express, Inc.,
F. Wrongful Discharge and Failure to Reinstate
The Board found that NRM violated sections
8(a)(5) and 8(a)(3) of the Act by transferring
unit work to non-unit personnel in order to
eliminate the Union as the unit bargaining
representative. The Board also found that NRM
violated section 8(a)(3) of the Act by failing to
reinstate employees who made an unconditional
offer to return. Again, we find the Board’s
conclusions to be supported by substantial
evidence in the record. The charges were
sufficiently related to the initial complaints to
be properly before the Board, and our approval of
the Board’s section 8(a)(5) analysis with respect
to the transfer of unit work to non-unit
subcontractors is equally applicable here.
Section 8(a)(3) of the Act prohibits
"discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any
labor organization." The Board reasoned that NRM
violated section 8(a)(3) when it forced union
employees to choose between abandoning their
union to become owner-operator subcontractors and
*17
having no job at all. In effect, the Board viewed
NRM’s statements as a promise that there would
only be work for those who renounced their union
membership. The Board properly concluded that
imposing this impermissible choice upon the unit
workers was a violation of the Act. See Canteen
Corp. v. NLRB,
Finally, the Board found that NRM violated
section 8(a)(3) of the Act by refusing to
reinstate striking workers who made an
unconditional offer to return to work. It is
settled that "unfair labor practice strikers are
entitled to reinstatement upon making an
unconditional offer to return to work."
Lapham-Hickey Steel Corp.,
III
Last, NRM argues that the Board’s order
requiring restoration of NRM’s trucking
operations and reinstatement of employee truck
drivers should not be enforced because it is
unreasonable and imposes an "undue or unfair
burden." NRM concedes, however, that it did not
make this argument before the Board. The Act very
clearly states that an objection "not urged
before the Board . . . shall [not] be considered
by the court, unless the failure or neglect to
urge such objections shall be excused because of
extraordinary circumstances." 29 U.S.C.
sec.160(e). NRM does not point to any
extraordinary circumstances justifying its
failure to urge this objection before the Board
and thus our hands are tied. Relying on our
opinion in NLRB v. Thill, Inc.,
In addition, we are not persuaded that compliance with the Board’s order will impose an unusual hardship on the employer. NRM contends that the order is unreasonable because it would be forced to buy back all its trucks from the owner-operators and revert to a system of hauling that it has not used in almost eight years. The order, however, says nothing about where NRM should procure its trucks, or whether it should buy or lease them. NRM merely needs to make trucks available so that the reinstated bargaining unit employees can return to hauling ready-mix. Furthermore, there is no evidence that NRM will have any particular difficulty returning its hauling business to unit employees; NRM apparently continues to deliver ready-mix to its customers just as it did eight years ago. NRM has given us no reason to think that the transition from subcontract hauling to in-house hauling would be any more difficult than the 1992 switch to using subcontractors. For all these reasons, we conclude that the Board’s order is entitled to be Enforced in its entirety.
FOOTNOTES
/1 Neither party has raised the question whether this decision is exclusively one to be made under federal law, or if state law bears on it as well. We therefore proceed, as the parties did, as if it is governed by federal law.
/2 NRM has not tried to justify its refusal to rehire on the ground that it had hired replacement workers for economic strikers, and *19 thus was entitled to turn away returning workers who wanted jobs that had been filled. This is understandable, as NRM’s entire point has been that the hauling subset of its business had been eliminated.