NLRB Panel Backs Judge’s Ruling on Company’s Violation of Federal Labor Law Following Union Organization Activities

Apr 15, 2022

Branstetter, Stranch & Jennings (BS&J) attorneys Pamela Newport and David O’Brien Suetholz recently achieved another victory in the Smyrna Ready Mix Concrete LLC and General Drivers Warehousemen & Helpers Local 89 case. Suetholz served as first chair co-counsel in the case.

In March 2022, a National Labor Relations Board (NLRB) panel concurred with an administrative law judge’s September 2020 ruling that Smyrna Ready Mix Concrete (SRM) violated the National Labor Relations Act at its Winchester, Kentucky facility. The case was originally filed in late 2019 and tried during the summer of 2020. Following the judge’s ruling, SRM filed exceptions to the decision and the case was transferred to the NLRB Board. 

Administrative Law Judge Arthur Amchan’s 2020 ruling stated that SRM violated the National Labor Relations Act by partially shuttering and making the Winchester facility an “on-demand plant” despite having plenty of business, and terminating its drivers “due to employees’ known and suspected union sympathies.” Further violations included termination of additional employees, denying terminated employees future employment “solely on the basis of their known and suspected union sympathies without credible evidence of punishable misconduct or poor performance,” and requiring the drivers to sign a separation agreement in order to receive enhanced benefits.

The first SRM driver, Sunga Copher, was fired in November 2019, one day after meeting with Local 89 representatives. The plant manager, Aaron Highley, was then fired the following day after refusing to provide information to SRM about the Union organization plans. In addition, SRM’s general manager called the employees together and handed out cash bonuses to each worker. In early 2020, the company scaled back production and laid off additional workers. Judge Amchan labeled these and other actions as unfair labor practices that violated federal law.

In his 2020 decision, Judge Amchan ordered SRM to resume full operation of the Winchester plant, rehire the eight terminated employees and provide back pay with interest. SRM Concrete was also ordered to provide additional compensation for search-for-work and interim employment expenses, and for any adverse tax consequences resulting from lump-sum back pay awards.

In its 2022 ruling, the NLRB panel ordered SRM to offer the terminated Winchester employees their jobs back, provide back pay and resume full production.

“The conversion to on-demand status took place within two months of the Respondent’s discovery that drivers had attended a union meeting and within two months of the unlawful discharges of Copher and Highley,” the board stated in its decision.