The top federal appellate court recently granted an Aggregate Industries petition for review of a National Labor Relations Board decision involving the transfer of work between Construction and Ready-Mix bargaining unit drivers represented by Teamsters, Chauffeurs, Warehousemen and Helpers Local 631, Las Vegas.
Contrary to an administrative law judge’s initial finding, the board interpreted a National Labor Relations Act violation in Aggregate Industries’ 2010-2011 transfer of nearly 60 drivers from the Construction unit, serving the producer’s Las Vegas road-building and quarry business, to the Ready-Mix unit, formed in 2008 to serve a newly established, three-plant profit center. Drivers saw immediate or gradual wage adjustments from $30/hour to $25/hour, the latter figure consistent with other Las Vegas market agreements for mixer truck driver units.
“Aggregate Industries transferred work from one bargaining unit to another over the objections of the union representing both units,” Senior Circuit Judge A. Raymond Randolph observed in his order. “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 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 conclusions.”
“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,” Judge Randolph affirmed. “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.