Aggregate Industries v. National Labor Relations Board

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.