Nat'l Labor Relations Bd. v. Irving Ready–mix Inc., Cause No. 1:10–CV–346 JD.

• Decision Date: 28 January 2011
• Docket Number: Cause No. 1:10–CV–346 JD.
• Citation: 190 L.R.R.M. (BNA) 2074,780 F.Supp.2d 747
• Parties: NATIONAL LABOR RELATIONS BOARD, Plaintiff,v.IRVING READY–MIX INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

780 F.Supp.2d 747

190 L.R.R.M. (BNA) 2074

NATIONAL LABOR RELATIONS BOARD, Plaintiff,

v.IRVING READY–MIX INC., et al., Defendants.

Cause No. 1:10–CV–346 JD.

United States District Court, N.D. Indiana, Fort Wayne Division.

Jan. 28, 2011.

Belinda J. Brown, Fredric D. Roberson, National Labor Relations Board, Indianapolis, IN, for Plaintiff.M. Scott Hall, Hall & Gooden LLP, Fort Wayne, IN, Geoffrey S. Lohman, Fillenwarth Dennerline Groth & Towe LLP, Indianapolis, IN, for Defendants.

ORDER

JON E. DeGUILIO, District Judge.

On October 5, 2010, Plaintiff, Rik Lineback (“Director”), Regional Director of the Twenty–Fifth Region of the National Labor Relations Board (“Board”), filed a motion for injunctive relief on behalf of the Board, pursuant to Section 10(j) of the National Labor Relations Act (“Act”) and a memorandum in support. [DE 1 and DE 2]. In the motion, the Director seeks temporary injunctive relief prior to the Board's ruling in a pending administrative action. Subsequently, both parties were granted leave to file briefs in excess of twenty-five pages. On October 22, 2010, the Director filed its supplemental memorandum in support of its motion for injunctive relief. [DE 16]. On November 3, 2010, the Defendant, Irving Ready Mix Inc. (“Irving”), filed a supplemental response in opposition. [DE 23]. The Director did not file a reply in support of its motion.

The Director asked the Court to decide the motion for injunctive relief on the administrative record alone and without a hearing. [DE 3]. On October 20, 2010, Irving filed a response indicating that it reserved the right to file a motion for a hearing on the motion for injunctive relief. On November 3, 2010, Irving filed a motion for hearing. [DE 23]. The Director did not file a response in opposition to Irving's motion for a hearing.

On November 9, 2010, the Court granted a motion, filed by the Chauffeurs, Teamsters and Helpers Local Union No. 414 (“Union”), to appear amicus curiae. On November 22, 2010, the Union filed an amicus brief in support of the Director's request for injunctive relief. [DE 26]. On November 29, 2010, Irving filed a response. [DE 29]. On December 7, 2010, the Union filed a reply. [DE 30].

On December 17, 2010, the ALJ issued an opinion agreeing with all but one of the Director's alleged violations of the Act. [DE 31–2]. The contents of this order are discussed in greater detail below. On December 29, 2010, the Director filed a notice with this Court, noting the conclusions in the ALJ's opinion and repeating the Director's request for Section 10(j) injunctive relief,¹ with the singular exception, consistent with the ALJ's opinion, that the Director was no longer seeking injunctive relief in relation to the Director's claim of bad faith bargaining. [DE 31]. On January 7, 2011, Irving filed a response, repeating many of the same arguments raised in Irving's previous briefs and asserting that Irving intends to challenge the ALJ's decision by filing objections before the Board. [DE 32].

I. Facts

A. Irving's Business

Irving Ready–Mix Inc. is a corporation engaged in the delivery of ready-mix concrete and has places of business in Fort Wayne and Kendallville, Indiana. Trans. 13–14. Irving delivers ready-mix concrete via trucks equipped with a large drum that can carry up to eleven cubic yards of concrete. Trans. 13–14, 135.

Irving prepares ready-mix concrete for delivery at Irving's five batch plants. Trans. 14, 241. This process involves combining concrete powder, aggregate, water, and other materials into the mixer's drum. Trans. 13–14. Once loaded, the driver operates the drum via foot pedal located inside the truck's cab. Trans. 14, 132. Pushing the pedal one way causes the drum to rotate in a direction that mixes the ingredients. Trans. 132. Pushing the pedal the other way causes the drum to rotate in the opposite direction, which causes the discharge of the ready-mix concrete by way of a chute. Trans. 132. The driver monitors a slump meter located inside the truck's cab, which indicates the consistency of the mixture in the drum as it turns. Trans. 135–136. If the slump meter indicates that the load is too stiff, additional water can be added from the truck's internal water tank. Trans. 135–136. Once mixed, ready-mix concrete must be placed in the desired location within one-and-a-half to three hours, to maintain consistency and to avoid setting. Trans. 155, 346. In addition, once mixed, ready-mix concrete cannot be stored for later use. Trans. 347.

The ensure proper delivery of the concrete, Irving's drivers must carefully coordinate with others working at each job site. Trans. 144, 227. Effective coordination requires training and experience. Trans. 173–74, 203–04, 228. Upon arrival at a work site, Irving's drivers check in with the customer to determine the requirements of each, specific project. Trans. 138. Further, before pouring the concrete, Irving's drivers communicate with others at the job site to determine the necessary quantity and the proper placement. Trans. 140, 144. Thereafter, Irving's drivers work in unison with the workers at the site to regulate the rate and direction of discharge from the drum. Trans. 140–41, 144. Specifically, when pouring concrete, Irving's drivers regularly move the truck and adjust the direction of the chute to regulate the flow of concrete. Trans. 141–43, 170, 196. Control over the speed and direction of the pour can be effectuated from inside the truck. Trans. 140–141. However, if a driver determines that it is easier to communicate with the workers or to see the location of the pour from the outside of the truck, the driver can also operate the chute from outside the truck. Trans. 164–65.

B. The Parties' Negotiations

On May 31, 2010, the date the parties' last collective bargaining agreement expired, Irving employed twenty-three Union drivers. Trans. 50. Irving does not dispute that the Union was the collective bargaining representative for Irving's drivers. See Director's Brief, DE 16 at 13. Indeed, since the late 1960s or early 1970s, Irving and the Union have been parties to successive collective bargaining agreements covering Irving's drivers. Trans. 63, 86. The parties most recent collective bargaining agreement was in effect from June 1, 2005 through May 31, 2010. Trans. 15–16, 63; Director's Ex. 2.

On March 4, 2010, in an effort to begin negotiations for a new collective bargaining agreement, the Union mailed a letter reminding Irving that the existing collective bargaining agreement was set to expire on May 31, 2010. Irving's Ex. 19. On April 27, 2010, Union President George Gerdes (“Gerdes”) contacted Irving to schedule a negotiation meeting. Trans. 66–67; Director's Ex. 12. On May 17, 2010, the parties met for the first time to begin negotiations. Trans. 16, 67. At the meeting, the Union presented Irving with its proposal for a new collective bargaining agreement. Trans. 68; Director's Ex. 3. The parties briefly discussed the Union's proposals, and Irving did not raise any issues or concerns regarding the Union's proposal at the meeting. Trans. 68.

Two days later, on May 19, 2010, the parties met a second time. Trans. 16–17, 68–69. This time, however, Irving submitted a counter-proposal to the Union, suggesting amendments to the parties' existing collective bargaining agreement. Trans. 69–70, Director's Ex. 4. For example, Irving's proposal reduced Irving's retirement contribution and required drivers to contribute to their health insurance premiums. Trans. 23–27; Director's Ex. 2 at 22; Director's Ex. 4; Director's Ex. 5. In addition, Irving's proposal increased the number of hours needed to qualify for vacation and retirement benefits and changed the calculation of overtime to include only those hours worked in excess of forty hours in a week. Trans. 20, 23–27; Director's Ex. 4. The Union responded by providing Irving with information regarding the Union's retirement plan and health insurance programs. Trans. 307–309; 380–383; Irving's Ex. 22; Director's Ex. 26. Failing to reach an agreement on the collective bargaining agreement, the parties agreed to meet again on May 24, 2010; one week before the expiration of the existing collective bargaining agreement. Trans. 70.

On May 24, 2010, a few hours prior to the scheduled meeting, attorney Scott Hall, counsel for Irving, contacted Gerdes by phone and advised Gerdes that Irving was not prepared to negotiate. Trans. 70–71. After noting the approaching deadline, Gerdes agreed to reschedule the meeting for May 28, 2010. Trans. 71–72. In the interim, on May 25, 2010, Irving's owners met to determine what financial package it would be willing to offer in the negotiations. Trans. 314–318. At the meeting, the owners decided that Irving could afford a financial package with a total cost of approximately $31.00 per hour per driver; a reduction of approximately $12.00 from the existing collective bargaining agreement. Trans. 254–255, 314–318; Director's Ex. 25; Irving's Ex. 12. Irving then drafted two proposals for presentation at the May 28, 2010 bargaining session, each designed to meet this cost point. Trans. 318–19; Director's Ex. 6; Director's Ex. 7.

On Friday, May 28, 2010, the parties met for a third and final bargaining session. Trans. 73. At the meeting, Irving presented the Union with its two proposals, labeled “Proposal A” and “Proposal B.” Trans. 74, 319, Director's Ex. 6; Director's Ex. 7. Proposal A retained the drivers' current rate of pay but substantially reduced the drivers' benefits. Director's Ex. 6. Proposal B reduced the drivers' hourly rate of pay to $18.00 an hour, from $20.82 an hour, but made fewer changes to the drivers' benefits. Director's Ex. 7. Both proposals eliminated Irving's obligation to make 401(k) plan contributions, and both proposals included a revised health insurance proposal. Director's Ex. 6; Director's Ex. 7. Further, both proposals required employees to pay for the cost...