Granite Construction Co., 205 (1999)

Granite Construction Company and International Union of Operating Engineers, Local 428, AFL- CIO and Laborers' District Council of the State of Arizona including Locals 383 and 479, a/w Laborers' International Union of North America, AFL-CIO and Transport Local Delivery and Sales Drivers, Warehousemen and Helpers, Construction, Mining, Motion Picture and Television Production, State of Arizona, Local Union No. 104, a/w International Brotherhood of Teamsters, AFL-CIO

Granite Construction Company and International Union of Operating Engineers, Local 428, AFL- CIO, Petitioner and Laborers' District Council of the State of Arizona including Locals 383 and 479, a/w Laborers' International Union of North America, AFL-CIO, Petitioner and Transport Local Delivery and Sales Drivers, Warehouse-men and Helpers, Construction, Mining, Motion Picture and Television Production, State of Arizona, Local Union No. 104, a/w International Brotherhood of Teamsters, AFL-CIO, Petitioner. Cases 28-CA-12629, 28-CA-12633, 28- CA-12660, 28-CA-12651, 28-RC-5256, 28-RC- 5257, and 28-RC-5258

November 29, 1999

DECISION, ORDER, AND DIRECTION

BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND BRAME

On April 12, 1996, Administrative Law Judge Clifford

H. Anderson issued the attached decision. The General Counsel filed exceptions, the Respondent filed an answering brief,1 the General Counsel filed a reply brief, and the Charging Party Operating Engineers filed a reply brief. The Respondent filed exceptions, the General Counsel filed an answering brief, the Charging Party Operating Engineers filed cross exceptions and an answering brief, the Charging Party Teamsters filed exceptions and a brief, and an answering brief, and the Respondent filed briefs in reply to the General Counsel, Operating Engineers, and Teamsters.2 The Association of General Contractors filed an amicus brief, and the AFL-CIO filed an amicus brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

1 The Respondent filed a motion to strike certain portions of the General Counsel's brief, and the Laborers and the General Counsel filed a brief opposing this motion. We deny the Respondent's motion to strike.

2 The Respondent filed a motion to correct the administrative law judge's decision, and the General Counsel filed an opposition to that motion. We deny the Respondent's motion. The Respondent also filed a motion to strike the judge's conclusions with respect to Sec. 8(a)(1). We deny the motion.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions only to the extent consistent with this Decision, Order,4

and Direction.

This case involves Respondent's relationships with three Unions-Operating Engineers, Teamsters, and Laborers. Each Union represented a construction unit pursuant to Section 8(f) and a nonconstruction unit (rock, sand, and gravel) pursuant to Section 9(a).5

The Operating Engineers and the Teamsters struck on July 14. The Laborers honored that strike (beginning July 15) and then struck on their own on July 18. As discussed below, we conclude that all such activity was in breach of no-strike clauses and was unprotected.

Thus, we reach the following conclusions:

1. For the reasons stated by the judge, we agree that the Respondent did not violate Section 8(a)(3) when it discharged Teamsters-represented employees for striking in violation of a no-strike clause;

2. For the reasons stated by the judge, we agree that the Respondent did not violate Section 8(a)(5) and (1) when it withdrew recognition from and refused to bargain with the Teamsters, Operating Engineers and Laborers as representatives of the employees in the construction units;6

   3 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

   4 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.

   5 The judge found, and we agree, that the three rock, sand and gravel units are not, and have never been, within the building and construction industry as that term is used in Sec. 8(f) of the Act. Therefore, he found that the provisions of Sec. 9(a) governed those bargaining relationships. In a case decided just before the Respondent commenced operations in Arizona, the Board found that, by its terms, the Arizona Rock Products agreement applied "only to bona fide commercial plant operations, and will not be considered as applying to job-site construction, sub-contract plant operations, or the establishment of an operation for the primary purpose of servicing a particular job or project." Based on this, the Board found that the agreement applied primarily to commercial manufacturing operations which do not involve "the provision of labor whereby materials and constituent parts may be combined on the building site to form, make or build the structure common to the construction industry." Therefore, the Board found that the bargaining relationships were governed by Sec. 9(a) of the Act. See Teamsters Local 83 (Various Employers), 243 NLRB 328, 332 (1979). Here, the agreements with each of the rock, sand, and gravel units contain identical language limiting the scope of the agreement to bona fide commercial plant operations. We find that the inclusion of this language, combined with the fact of the Board's decision prior to the Respondent commencing operations in Arizona, support the judge's finding that the bargaining relationship between the Respondent and the three rock, sand and gravel units were governed by the provisions of Sec. 9(a) of the Act.

   6 John Deklewa & Sons, 282 NLRB 1375 (1987).

3. Contrary to the judge, we find that the Respondent did not violate Section 8(a)(3) and (1) when it discharged Operating Engineers-represented employees who engaged in strike activity on July 14.

4. Contrary to the judge, we find that the Respondent did not violate Section 8(a)(5) and (1) when it withdrew recognition from the Operating Engineers, Teamsters and Laborers in the non-construction units.

5. In light of our findings regarding the status of the Operating Engineers' strike, we find that the Laborers represented employees were engaged in unprotected strike activity on July 15 and 18, 1994.7

   Thus, the discharge of the Laborers-represented employees was lawful.

   Factual Findings8

   The facts, as more fully set forth by the judge, are as follows. The contract between the Respondent and the Operating Engineers expired on May 31, 1994. Bargaining began in late May. The Operating Engineers and the Respondent met on July 5 and agreed to extend their contract until the next scheduled meeting on July 11. The Respondent met jointly with the Operating Engineers and the Carpenters on July 11.9 Sometime in the afternoon, the Carpenters announced that they would not attend further sessions until the differences between the Operating Engineers and the Respondent were worked out. Carpenters Representative Rick Mills agreed to Granite Labor Relations Director Rolleri's request to keep the old contract in place until the next bargaining session with Carpenters, even though another bargaining session had not been scheduled. As to the Operating Engineers, the testimony is at variance.

   The Respondent's witnesses testified that, while the Carpenters were leaving, and after their agreement was reached, Rolleri immediately asked Operating Engineers Representative Dennis Teel if he too would agree to keep the Operating Engineers' agreement with the Respondent in place until their next scheduled meeting on July 19. The Respondent's witnesses testified that Teel nodded affirmatively. Teel specifically denied that any such exchange occurred. Other Operating Engineers representatives corroborated his denials. The Carpenters' representative, while not denying that it occurred, testified that the activity associated with their departure might have caused them not to hear Rolleri's question to Teel.

   7 All dates are in 1994 unless noted otherwise.

   8 Elections in each of the construction units were conducted on December 9, 1994, pursuant to a Stipulated Election Agreement. In each unit challenged ballots were determinative of the results. The hearing on challenged ballots was consolidated with the hearing on the unfair labor practice complaints. Based on our findings in this decision, we have set forth, infra, in our Direction, the ballots to be counted to determine the results of the elections.

   9 Although the Carpenters Union was negotiating with Respondent during these events, it is not a party to this case.

   On the afternoon of July 13, the Operating Engineers representative, Dennis Teel, informed the Laborers representative, Emilio Torres, of Teel's decision to take the Operating Engineers out on strike. Operating Engineers Representative Teel contacted his counsel and obtained the language of a letter to send to the Respondent. At the end of the workday on July 13, the Operating Engineers sent a letter by facsimile to Granite "terminating the oral agreement to extend the contract effective July 14, 1994." Teel signed the letter on behalf of the Operating Engineers. (The Teamsters sent a similar letter by fax on the same day.)

   On July 14, the Operating Engineers and the Teamsters commenced an economic strike against the Respondent. On July 15, the Laborers sent the Respondent a letter by facsimile asserting that they were not engaging in an economic strike at that time. At the end of the...