Granite Construction Co.

National Labor Relations Board - Board Decisions

Nov 29, 1999

330 N.L.R.B. 205 (N.L.R.B. 1999)

GRANITE CONSTRUCTION CO. 205
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 Amer-
ica, AFL–CIO and Transport Local Delivery
and Sales Drivers, Warehousemen and Helpers,
Construction, Mining, Motion Picture and Tele-
vision 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 Ari-
zona, Local Union No. 104, a/w International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. 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 an-
swering 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 an-
swering brief, the Charging Party Teamsters filed excep-
tions and a brief, and an answering brief, and the Re-
spondent 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 La-
borers. Each Union represented a construction unit pur-
suant 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 employ-
ees 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 re-
fused to bargain with the Teamsters, Operating En-
gineers and Laborers as representatives of the em-
ployees 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 adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 de-
nied 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 manu-
facturing operations which do not involve “the provision of labor
whereby materials and constituent parts may be combined on the build-
ing site to form, make or build the structure common to the construc-
tion industry.” Therefore, the Board found that the bargaining relation-
ships were governed by Sec. 9(a) of the Act. See Teamsters Local 83
(Various Employers), 243 NLRB 328, 332 (1979). Here, the agree-
ments 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 commenc-
ing operations in Arizona, support the judge’s finding that the bargain-
ing 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).
330 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
3. Contrary to the judge, we find that the Re-
spondent 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 Re-
spondent 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 La-
borers represented employees were engaged in un-
protected strike activity on July 15 and 18, 1994.7
Thus, the discharge of the Laborers-represented em-
ployees 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. Bargain-
ing began in late May. The Operating Engineers and the
Respondent met on July 5 and agreed to extend their con-
tract 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 Operat-
ing 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 represen-
tatives corroborated his denials. The Carpenters’ repre-
sentative, 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 De-
cember 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 de-
termine 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 rep-
resentative, 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 working
day on July 15, the Respondent decided to fire all strik-
ing employees represented by the Operating Engineers
and the Teamsters. It fired 73 employees represented by
the Operating Engineers and 41 employees represented
by the Teamsters. The discharge letters stated that each
employee was being discharged for engaging in improper
strike activity prohibited by the contract. At the same
time, 14 members of the Laborers-represented units were
discharged for honoring the picket line. Over the week-
end, the wording on the Operating Engineers’ and Team-
sters’ picket signs was changed to protest the Respon-
dent’s “unfair labor practice.”
On the morning of July 18, the Laborers commenced a
strike against the Respondent, picketing its operations
with signs that proclaimed an unfair labor practice strike
against the Respondent. As Laborers-represented em-
ployees were identified by the Respondent as participat-
ing in the strike, or refusing to go to work because of the
picket line, they were terminated for participating in the
strike. Ten Laborers-represented employees were dis-
charged between July 18 and 25. In all, 24 Laborers-
represented employees were ultimately discharged.
The Laborers’ contract, which included a no-strike
clause barring economic or sympathy strikes, had been
extended until the next scheduled bargaining session on
July 26. The Respondent and the Laborers’ representa-
tive met at the scheduled bargaining session on July 26.
At that time the Respondent distributed a letter indicating
that the contracts had been in effect up to the scheduled
bargaining session and that strike activity before that
time was in violation of the agreements. The letters an-
nounced that the contracts were expired, were not to be
extended further, and that the Respondent repudiated the
expired agreement and the existing bargaining relation-
ship.10
10 The Respondent had distributed similar letters to the Teamsters
and the Operating Engineers on July 19 and 25, respectively.
GRANITE CONSTRUCTION CO. 207
Administrative Law Judge’s Decision
The judge found that the Operating Engineers’ strike
was lawful, that the discharge of the striking Operating
Engineers-represented employees who participated in the
strike on July 15 was unlawful, and that the Engineers’
strike was converted to an unfair labor practice strike at
that point. The judge found that each of the witnesses
testified honestly as to what he recalled regarding the
discussions at the bargaining table on July 11. However,
he found that the testimony did not clearly establish that
the Operating Engineers agreed at the July 11 meeting to
extend their agreement to the next scheduled bargaining
session. The judge further explained that “Teel’s down-
ward look and nod of his head occurring thereafter, as
again described by Haworth and Rolleri, were not in re-
sponse to the unheard extension question, but rather
some other circumstance not recalled by any witness nor
otherwise identified on this record.” The question was
asked, as the Respondent’s agents testified, but it was not
heard. In the confusion of the moment, a misunderstand-
ing occurred. In sum, the judge found that the Operating
Engineers bargainers did not believe that they had agreed
to extend the contract before they went on strike.
The judge also found that the Laborers’ contract in-
cluded a no-strike clause barring economic or sympathy
strikes, and that it had been extended until the next
scheduled bargaining session on July 26. He further
found that a substantial number of Laborers-represented
employees honored the Operating Engineers strike.
Since that strike did not become an unfair labor practice
strike until the discharge of the Operating Engineers-
represented employees, which discharge occurred simul-
taneously with the discharge of the Laborers, the judge
found that the discharge of the employees in the Operat-
ing Engineers units could not have influenced the deci-
sions of the Laborers-represented employees to honor the
picket line on July 15. The judge found that the 14 La-
borers-represented employees who withheld their ser-
vices on July 15 while their contract with its no-strike
clause was still in effect were lawfully discharged for
doing so.
The judge further noted that, on July 18, the Laborers
Union called a strike. Between July 18 and 25, Laborers-
represented employees participating in the strike were
discharged. Since the Laborers’ contract was still in ef-
fect with its prohibition of economic and sympathy
strikes, the judge sought to determine whether the strike
was caused in part by the unlawful discharge of the Op-
erating Engineers, thereby making it an unfair labor prac-
tice strike. Gaywood Mfg Co., 299 NLRB 697 (1990).
The judge found, based on a history of collaborative bar-
gaining, close working circumstances and mutual aid and
support, that the discharge of the 73 Operating Engi-
neers-represented employees was a factor in the Labor-
ers’ initiating their strike on July 18, and in the Laborers-
represented employees honoring the strike thereafter.
Therefore, the judge found that the Laborers strike be-
ginning on July 18 was an unfair labor practice strike
from its inception, that the Laborers-represented employ-
ees were unfair labor practice strikers, and that the con-
tract limits on economic and sympathy strikes did not
apply to those employees who struck in protest of the
Respondent’s unfair labor practices.
Exceptions
The Respondent excepts, inter alia, to the judge’s find-
ing that the Operating Engineers’ contract was not ex-
tended. It contends that the documentary and testimonial
evidence supports its contention that the Operating Engi-
neers’ agreement remained in effect through July 19,
1994, the date of the next scheduled meeting. Specifi-
cally, the Respondent contends that Teel agreed at the
July 11 meeting to extend the Operating Engineers’ con-
tract, and that the July 13 letter to the Respondent advis-
ing it that the Operating Engineers were going out on
strike contains an admission that lends support to that
contention. The Respondent argues that the language in
Teel’s July 13 letter “terminating the oral agreement to
extend the contract” indicates that there had been an
agreement. Moreover, by stating in the letter that it was
“effective 7/14/94” it implied that when the letter was
sent there was an agreement in place.
Analysis
We find merit in the Respondent’s exception and its
contention that the Operating Engineers’ contract with its
no-strike clause was in effect at the time of the strike. In
light of the variation in the parties’ testimony, it is criti-
cal that we examine the documentary evidence to shed
light on what the parties believed they had agreed to at
the July 11 bargaining session. We agree with the Re-
spondent that the judge erred in failing to recognize that
the Operating Engineers’ July 13 letter to the Respondent
contained an admission that there had been an oral
agreement to extend the Operators’ contract. The letter,
sent by facsimile on July 13, stated:

This is to inform you that, because we are not making
any progress on finalizing our collective bargaining
agreement, Local 428 [of the Operating Engineers] is
terminating the oral agreement to extend the contract,
effective July 14, 1994.

Although the judge acknowledged the existence of the
letter, he accorded it no weight in light of his findings
that the Operating Engineers’ witnesses had testified
honestly to what they recalled. We find that the judge
erred in failing to accord weight to the Operating Engi-
neers’ admission in the letter. We further find that that
admission clearly supports the testimony of the Respon-
dent’s witnesses—which the judge also credited in mak-
ing what he acknowledged were Solomonic credibility
resolutions—that, after obtaining the Carpenters’ agree-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
ment to extend their contract, Respondent’s representa-
tive, Rolleri, specifically asked Operating Engineers
Representative Teel if he too would agree to extend their
old contract and that they observed Teel nodding
affirmatively.11 We therefore reverse the judge and find
that there was an oral agreement to extend the Operating
Engineers’ contract until the next bargaining session on
July 19.12
As we have found that the Operating Engineers’ con-
tract with its no-strike provision was in effect, we find
that the strike activity was unprotected and the dis-
charges were not in violation of Section 8(a)(3) and (1)
of the Act. Accordingly, we reverse the judge’s finding
of a violation. We further find that the Operating Engi-
neers’ rock, sand, and gravel unit, which was governed
by Section 9(a) of the Act, was substantially depleted by
the discharges and that the Respondent was therefore
entitled to withdraw recognition and refuse to bargain.
Consequently, we also reverse the judge’s finding of an
8(a)(5) and (1) violation. Marathon Electric, 106 NLRB
1171 (1953).13
We have found that the Operating Engineers engaged
in unprotected strike activity, and that the Respondent
did not violate Section 8(a)(3) and (1) when it discharged
those striking employees. Consequently the Laborers’
strike, which the judge found was motivated in part by
the discharge of the Operating Engineers, is also unpro-
tected. That is, there was a no-strike clause in effect, and
the strike was not an unfair labor practice strike. Accord-
ingly, we reverse the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) when it discharged La-

11 We find that the letter, which was sent 2 days after the alleged oral
agreement was made, speaks for itself and cannot be minimized simply
by concluding, as the judge did here, that the Operating Engineers’
witnesses subsequently testified honestly as to what they believed oc-
curred. See Royal Motor Sales, 329 NLRB 760 3 fn. 10 (1999) (citing
Island Creek Coal Co., 292 NLRB 480, 488–489 (1989), enfd. mem.
899 F.2d 1222 (6th Cir. 1990) (judge’s conclusion that witness lied
about reasons for information request not determinative in light of
documentary and other undisputed evidence)).
12 Member Hurtgen notes that there is testimony that Teel’s affirma-
tive nod was in response to a different matter. In light of the July 13
letter, Member Hurtgen is skeptical about that testimony. However,
even crediting that testimony, Member Hurtgen would reach the same
result. That is, if Teel failed to respond to the suggestion of contract
extension, that silence would be especially troublesome in light of the
judge’s finding that there was a pattern in earlier bargaining sessions of
discussing extensions and new meeting dates at each bargaining ses-
sion. He notes that there is no dispute that the Carpenters reached an
extension agreement and that Teel heard them do so. Further, the judge
found that Rolleri attempted to reach an agreement with the Operating
Engineers. Teel testified that the subject of extensions and new meet-
ing dates came up at the end of meetings. If, at this point in the bar-
gaining, Teel did not wish to maintain the status quo, he should have
made his position clear to the Respondent. In circumstances such as
these, Member Hurtgen would place the burden on the party seeking to
change the status quo to put the other party on notice. He would find
that in this instance, the Operating Engineers did not meet their burden.
13 As noted above, the construction units were governed by Sec. 8(f),
and thus withdrawal of recognition in those units was clearly lawful,
even apart from Marathon, supra.
borer represented employees for engaging in strike activ-
ity. We further find that the Laborers’ rock, sand and
gravel unit, which was governed by Section 9(a) of the
Act, was substantially depleted by the discharges and
that the Respondent was entitled to withdraw recognition
and refuse to bargain. Accordingly, we reverse the
judge’s finding of an 8(a)(5) and (1) violation.
Similarly, as noted earlier, we adopt the judge’s find-
ings that the Respondent did not violate the Act by dis-
charging Teamsters-represented employees who struck in
violation of a no-strike clause. The Respondent also did
not violate the Act by withdrawing recognition of the
Teamsters in the rock, sand and gravel units since that
unit was substantially depleted by the discharges.
The complaint also alleged multiple violations of Sec-
tion 8(a)(1) of the Act. According to the judge, the alle-
gations involved essentially three classes of conduct—
threats of discharge if the employees did not abandon the
strike and return to work; statements that the unions were
out and would never get back in the workplace; and in-
ducements to return to work. The judge explained that
the conduct at issue is permissible or impermissible de-
pending on the protected character of the strikes involved
and the nature of the Respondent’s bargaining obliga-
tions. The judge found that the Respondent violated the
Act by making these statements. Consistent with our
findings that the striking employees represented by the
Operating Engineers, Laborers, and Teamsters engaged
in unprotected conduct, we conclude that the statements
were lawful.
As we have not found merit in any allegation of the
complaint, we order the complaint dismissed.
ORDER
The complaint is dismissed.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
28 shall, within 14 days from the date of this Decision,
Order and Direction, open and count the ballots of the
individuals listed below. The Regional Director shall
then serve on the parties a revised tally of ballots and
issue the appropriate certification.

Teamsters Unit Case 28–RC–5256:
Barton, Bryan Briggs, Jimmy
Burney, William Byron, Christopher
Corrales, Joe Figueroa, Henry
Freyenhagen, Lee Gauthier, Richard
Gilmore, Martin Lender, Dennis
Linegar, Larry Martinez, Ramon
McCan, Lawrence Montoya, Quirino
Moreno, Robert Mosier, Thomas
W. III
Nelson, Christen Ramon, William
Shumaker, Mark Sipe, James

GRANITE CONSTRUCTION CO. 209
Stalcup, Raymond Taylor, Charles
Wilson, James
Further, if necessary, the Regional Director shall inves-
tigate and determine the eligibility of Messrs. Ron
Dennee and James Michaels.
Operating Engineers Construction Unit Case 28–RC–
5257:

Abeyta, Ernesto Johnson, Walter
Anderson, Cleo Keith, Marion
Bejarano, Ray Kirkendall, David
Borquez, Francisco Mackey, Robert
Bray, Greg Minor, Steve
Broquez,Victor Moran, John
Canady, William Moss, Brian
Carroll, Charles Nelson, Steven
Castano, Ernest Ochoa, Manuel
Clark, Douglas Paugh, Daniel
Cole, Stewart Powell, Ray
Crowe, Scott Pursley, Debra
Daugherty, Charles Roe, Charles
Dodemont, Shayne Rose, Robert
Fenn, Jason Rossen, Frank
Finch, Michael Shew, Michael
Garcia, Richard Sibley, Richard
Henry, George III Simmons, Stanley
Glomski, Thomas Stock, Gary
Granillo, Ernie Storm, George
Guerro, Juan Jose Sturgis, Douglas
Herbert, David Turner, Kevin
Hernandez, Juan or
John S Urschel, Charles
Housler, Chad Wagner, Jim
Howard, William Watson, Earl
Hughes, James Weber, John
Jackson, Robert Werland, David
Jackson, Charles Wetterstorm, Mark
Jacobs, Rufus Wilharm, Clinton
Johnson, Chester Wofford, Bill
Bowman, Bernard
Bernal, Frederico

Investigate and determine the eligibility of the follow-
ing voters in the event the opening of the ballots found
eligible is not determinative of the election:
Garrett, Donald
Hiltunen, Louis
Lincoln, Richard
Sarrah, Kevin
Weller, Fred
White, Larry

Laborers’ Construction Unit Case 28–RC–5258:

Broughton, John Dekens, Bryan
Gonzales, Enrique Gradillas, Endurado
Green, Ronald Hawkins, Logan
Hernandez, Tony Huff, Chad
Lee, Jacob Major, Rex
Newman, Paul Nikitas, Angelo
Olivas, Miguel Rau, Mardy
Sharp, Leroy Turgis, Chad
Tellez, Alredo Urbina, Jesus
Zilko, Mike

Buckner, Roy Diggins, Daniel
Escamillas, Jess Esquivel, Hector M.
Jr.
Gonzales, Joe Esquivel, Hector M.
Sr.
Granillo, Guillermo Pachero,Richard
Gresham, Jimmy Dojaque, Zeferino B.
Jarvis, Justin Padilla, Adalberto
Van Alstine, Ron

As necessary, investigate and determine the eligibility
of Daniel S. Diaz and Ronnie Diaz.

Lewis S. Harris, Esq. and Richard H. Smith and Peter N. My-
danis, Esqs., for the General Counsel.
Richard K. Walker and Thomas D. Arn, Esqs. (Streich Lang), of
Phoenix, Arizona, for the Respondent/Employer.
Michael J. Keenan, Esq. (Ward, Keenan & Barett), of Phoenix,
Arizona, for the Charging Party/Petitioner, Operating Engi-
neers.
Barry E. Hinkle, Esq. (Van Bourg, Weinburg, Roger & Rosen-
feld), of Oakland, California, for the Charging Party/
Petitioner, Laborers.
Stanley Lubin, Esq., of Phoenix, Arizona, for Charging the
Party/Petitioner, Teamsters.
DECISION AND REPORT ON CHALLENGED BALLOTS
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned cases in Phoenix, Arizona, in 25 days of
trial extending from May through September 1995. The matter
arose as follows
I. THE UNFAIR LABOR PRACTICE CASES
On July 15, 1994, the International Union of Operating En-
gineers Local 428, AFL–CIO (the Charging Party Operating
Engineers, the Petitioner Operating Engineers, the Operating
Engineers or the Operators) filed a charge with Region 28 of
the National Labor Relations Board (the Region) docketed as
Case 28–CA–12629 against Granite Construction Company
(the Respondent or the Employer). The charge was amended
on October 31, 1994.
On July 15, 1994 the Laborers’ District Council for the State
of Arizona including Locals 383 and 479, affiliated with the
Laborers’ International Union of North America, AFL–CIO
(the Charging Party Laborers, the Petitioner Laborers or the
Laborers) filed a charge with the Region, docketed as Case 28–
CA–12633, against the Respondent and, on July 27, 1994, filed
a second charge with the Region, docketed as Case 28–CA–
12660, against the Respondent. The charge in Case 28–CA–
12660 was amended on October 31, 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210
On July 22, 1994, the Transport, Local Delivery and Sales
Drivers, Warehousemen and Helpers, Construction, Mining,
Motion Picture and Television Production, State of Arizona,
Local No. 104, an affiliate of the International Brotherhood of
Teamsters, AFL–CIO (the Charging Party Teamsters, the Peti-
tioner Teamsters, or the Teamsters and, collectively with the
Operators and the Laborers, the Charging Parties or the Unions)
filed a charge with the Region docketed as Case 28–CA–12651
against the Respondent. The charge was amended on October
31, 1994.
On August 31, 1994 the Regional Director for Region 28
(the Regional Director) issued an order consolidating cases,
consolidated complaint and notice of hearing respecting the
above-captioned unfair labor practice cases. The consolidated
complaint was amended on December 2, 1994, and at various
times during the hearing. The Respondent filed timely answers
to the complaint and amended complaints.
Briefly, the consolidated complaint as amended alleges four
categories of conduct. First, the complaint alleges that the Re-
spondent had long recognized the Unions as individual exclu-
sive representatives of six bargaining units—a rock, sand and
gravel employees unit and a construction employees unit for
each Charging Party—pursuant to Section 9(a) of the National
Labor Relations Act (the Act), the Respondent withdrew recog-
nition of each Union respecting its represented units and there-
after failed and refused to recognize and bargain with each
Union respecting those units; thereafter unilaterally changing
terms and conditions employment of unit employees without
resuming recognition and bargaining. The complaint alleges
that the Respondent’s actions in so doing violated Section
8(a)(5) and (1) of the Act.
Second, the complaint alleges that the Operators and the
Teamsters commenced an economic strike against the Respon-
dent on or about July 14, 1994. The complaint alleges that on
July 18, 1994, the Laborers commenced an unfair labor practice
strike against the Respondent and the economic strikes of the
Operators and the Teamsters were converted to unfair labor
practice strikes in consequence of the unfair labor practices of
the Respondent.
Third, the complaint alleges that on and after July 15, 1994,
the Respondent terminated striking employees and other em-
ployees who honored the picket lines in violation of Section
8(a)(3) and (1) of the Act. Fourth and finally, the complaint
alleges a host of incidents in which various agents of the Re-
spondent made statements to employees violative of Section
8(a)(1) and in some cases 8(a)(5) of the Act.
The Respondent admits that it had long recognized and bar-
gained with the Unions with respect to certain bargaining units,
that it withdrew that recognition and thereafter refused to bar-
gain with the Unions respecting its employees. It argues, how-
ever, that it was legally privileged to withdraw recognition and
had no obligation to continue or resume bargaining, so that its
conduct was at no time in violation of Section 8(a)(5) of the
Act.
The Respondent admits that it discharged certain of its em-
ployees for going on strike and/or supporting the strikes of the
Teamsters, the Operating Engineers and the Laborers. It al-
leges further, however, that the strikes were at all times illegal
strikes undertaken in contravention of valid no-strike provisions
of current collective-bargaining agreements. The Respondent
avers that employees’ conduct in joining these illegal strikes
was not protected under the Act and therefore the employees’
discharges in consequence thereof were not in violation of Sec-
tion 8(a)(3) and (1) of the Act. Finally Respondent denies that
the various allegations of conversations in violation of Section
8(a)(1) and Section 8(a)(5) of the Act occurred as alleged in the
complaint or, in all events, violated the Act.
II. THE REPRESENTATION CASES
On July 22, 1994, the Teamsters filed a petition with the Re-
gion, docketed as Case 28–RC–5256, seeking an election in a
unit of all drivers and truck mechanics and their apprentices in
the Respondent’s construction operations in the State of Ari-
zona. On July 26, 1994, the Operators filed a petition with the
Region, docketed as Case 28–RC–5257, seeking an election in
a unit of all equipment operators, servicemen, grade checkers,
heavy equipment mechanics and their apprentices employed in
the Respondent’s construction operations in the State of Ari-
zona. On August 15, 1994, the Laborers filed a petition with
the Region, docketed as Case 28–RC–5258, seeking an election
in a unit of all laborers in the Respondent’s construction opera-
tions in the State of Arizona.
The parties entered into Stipulated Election Agreements ap-
proved by the Regional Director on November 9, 1994. Elec-
tions in each unit were conducted on December 9, 1994. In
each unit a very substantial number of challenged ballots were
determinative of the results of the election.
On January 9, 1995, the Regional Director issued an order
directing hearing on challenged ballots, consolidated cases and
notice of hearing. The Order held that the challenged ballots
raised substantial issues of fact and credibility best resolved by
a hearing. The designated hearing officer was directed to hold
a hearing for purposes of resolving the challenges and thereaf-
ter to “prepare and cause to be served upon the parties a report
containing resolutions of credibility of witnesses, findings of
fact and recommendations to the National Labor Relations
Board as to the disposition of the challenges.” Finally, the
Order directed that the hearing on challenged ballots be con-
solidated with the hearing on the consolidated unfair labor prac-
tice complaints described above.
FINDINGS OF FACT
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence,1 to call, examine, and

1 Two separate disputes arose during the trial respecting Federal
Mediation and Conciliation Service Mediator Peter Cinquemani. The
Respondent subpoenaed Mr. Cinquemani, the Federal Mediation and
Conciliation Service moved to quash the subpoena and I granted the
motion based on current Board doctrine that mediators may not be
required to appear and give testimony in Board unfair labor practice
trials respecting their actions as mediators. Thereafter, the Respondent
adduced evidence respecting what was said by Mr. Cinquemani in
conversations with the Respondent’s agents in the course of bargaining.
The General Counsel and the Charging Parties objected to any evidence
of what Mr. Cinquemani said on the same grounds offered in support
of the ruling quashing the subpoena of the FMCS agent. They argued
in effect that. if it was proper to quash a subpoena directed to a media-
tor, it should also be proper to sustain a timely objection to receipt of
evidence respecting what he said or did in negotiation.
I ruled and reaffirm here my belief that the Board and court cases
addressing the subpoena or other compelled trial attendance testimony
of a FMCS Mediators are explicitly limited in their reach and rationale
to the question of whether or not the physical presence and testimony of
a Mediator may be compelled. The cases do not address whether or not
other evidence of a Mediator’s words and actions may be received into
evidence if otherwise relevant. In the instant case Mr. Haworth testi-
GRANITE CONSTRUCTION CO. 211
cross-examine witnesses, to argue orally, and to file posthear-
ing briefs.
Upon the entire record2 herein, including helpful briefs from
the General Counsel, the Charging Party Teamsters,3 the
Charging Party Operating Engineers and the Respondent, and
from my observation of the witnesses and their demeanor, I
make the following findings of fact.4
I. JURISDICTION
The Respondent is a California State corporation with an of-
fice and place of business in Tucson and other places in the
State of Arizona where it is engaged in general heavy and
highway construction and in the production and sale of rock,
sand and gravel, and other aggregate products. The Respondent
in the course and conduct of its business operations annually

fied to a conversation with Mr. Cinquemani. Absent clear Board au-
thority on the issue, I ruled it was inappropriate to create or apply a
new privilege which, as all privileges must, acts to deprive the parties
of the right to introduce otherwise relevant evidence at trial. No con-
trary authority having been advanced on brief, I reaffirm my ruling
here. If a party seeks to create a new evidentiary privilege in Board
proceedings, the party must first convince the Board. The role of a
judge is to follow the law not make it.
The testimony of Haworth respecting what Cinquemani said, while
not rejected on the basis of the argued privilege discussed supra, re-
mains subject to the normal limitations on hearsay set forth in the Fed-
eral Rules of Evidence. Hearsay objections were also advanced and
argued by the Charging Parties regarding Haworth’s attributions. I
have reviewed the testimony and find no exception under the rules of
evidence to receive what Haworth claimed Cinquemani said to the
Respondent’s agent at a meeting on July 19 for the truth of the events
on July 11. Thus, although the statements attributed to Cinquemani
occurring on July 19 include the statement that he had been surprised
by the events occurring on July 11, such an assertion does not qualify
the statement as a present sense impression or excited utterance excep-
tion to the hearsay rule under Federal Rules of Evidence 803(1) or (2).
Further I do not find Federal Rules of Evidence catchall sections
803(24) or 804(b)(5) applicable to Cinquemani’s remarks. Accord-
ingly, I have limited the use of Haworth’s testimony respecting Cin-
quemani’s statements.
2 The record was corrected in part by an earlier order in response to
various parties’ motions. Thereafter the parties requested that the court
reporters certifiy certain additional changes to the record which correc-
tions the parties by joint motion moved thereafter that I adopt. That
latter motion is granted.
The record, particularly respecting the spelling of the names of nu-
merous employees and challenged voters, was sadly variant. Differ-
ences in the spelling of individuals’ names between the Regional Direc-
tor’s Order Directing Hearing on Challenges, the parties’ stipulations
and the Respondent’s payroll records have generally been reconciled in
favor of the payroll records to the extent those records provide full
names and, where necessary, in favor of the spellings used in the stipu-
lations of the parties.
3 The General Counsel moved that a portion of the Charging Party
Teamsters’ brief be struck as an improvident and immaterial attack on
counsel in the litigation. The Charging Party Teamsters’ opposed the
motion on the grounds that its argument in its brief was relevant to and
offered in support of its motion for an award of litigation expenses.
Based on the limited theory of relevance proffered by the Charging
Party Teamsters the motion to strike is denied.
4 As a result of the pleadings and the stipulations of counsel at the
trial, the parties substantially reduced the disputes of fact regarding
collateral matters. Where not otherwise noted, the findings herein are
based on the pleadings, the stipulations of counsel, or unchallenged
credible testimonial or documentary evidence. Based on the record as a
whole and the results on the merits set forth below, the motions for
costs and fees made during the litigation are denied.
enjoys revenues in excess of $500,000 and during the same
period purchases and receives in interstate commerce at its
Arizona places of business, goods and materials valued in ex-
cess of $ 50,000 from points outside the State.
The complaint alleges, the answer admits, and I find that the
Respondent is now and has been at all times material an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
At all times material, the International Union of Operating
Engineers Local 428, AFL–CIO, has been a labor organization
within the meaning of Section 2(5) of the Act.
At all times material, the Laborers’ District Council for the
State of Arizona including Locals 383 and 479, affiliated with
the Laborers’ International Union of North America, AFL–
CIO, has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
At all times material, the Transport, Local Delivery and
Sales Drivers, Warehousemen and Helpers, Construction, Min-
ing, Motion Picture and Television Production, State of Ari-
zona, Local No. 104, an affiliate of the International Brother-
hood of Teamsters, AFL–CIO has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. Events
1. Background
The Respondent is a California corporation engaged in gen-
eral heavy and highway construction in various States with its
headquarters in Watsonville, California. In 1980 the Respon-
dent established its Arizona branch in Tucson, Arizona, and has
since that time operated within Arizona as a construction con-
tractor and as a producer of rock, sand, gravel, and other mate-
rials used in the construction industry. The events in contro-
versy herein deal exclusively with the Respondent’s Arizona
operations.
Dwight (Ted) Haworth Jr. has been the Respondent’s Ari-
zona branch manager since 1987. At relevant times, collective-
bargaining negotiations for the Arizona operation were con-
ducted by the branch manager and the Respondent’s Watson-
ville, California headquarters based labor relations manager.
During the 1994 negotiations, the Labor Relations Manager
was Thomas Rolleri.
The Respondent commenced its Arizona operations in May
1980 by acquiring the assets of an existing entity, New Pueblo
Constructors, including its real property, gravel pits, permits,
heavy construction equipment, plant equipment and rolling
stock. The Respondent since that time has continuously been
engaged in the business of heavy and highway construction
contracting and the production of rock, sand, and gravel within
the State of Arizona.
At the time of its start up in Arizona, the Respondent recog-
nized the Unions herein as representatives of the relevant craft
employees in separate bargaining units for its rock, sand, and
gravel (sometimes referred to as plant) operations and its con-
struction operations. As part of this process in 1980 the Re-
spondent joined and assigned its negotiating rights to the Ari-
zona Building Chapter of the Associated General Contractors,
an association representing employers in the construction in-
dustry, and adopted the then current Master Labor Agreement
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212
of the Arizona Building Chapter of the Associated General
Contractors which applied to its construction units. The Re-
spondent also joined the Arizona Rock Products Association
and adopted its labor agreements applicable to the Unions’
crafts in the plant operations. In 1982 the Respondent with-
drew from the multiemployer associations and at all times
thereafter bargained on its own behalf with each of the Unions
respecting their craft employees in separate construction and
plant units.
From its 1980 inception in Arizona, to the events in contro-
versy herein, the Respondent and the Unions maintained con-
tinuous relations respecting the three pairs of bargaining units
represented by each Union with each Union negotiating a series
of contract pairs covering plant and construction work with
Respondent. Thus six bargaining units, a separate rock, sand
and gravel unit and a separate construction unit for each craft
represented by the three Charging Parties, were covered by a
series of individual unit collective-bargaining agreements from
1980 until the final contracts’ expiration in 1994.
2. 1994 collective bargaining5
a. Overview
The six collective-bargaining agreements between the
Charging Parties and the Respondent by their terms expired on
May 31, 1994. Each of the agreements provided that there
would be no strikes, picketing, work stoppages, slowdowns, or
other disruptive activity for any reason by the Unions. They
also provided that employees involved in such activities would
be subject to discharge.
Also expiring at that time was a collective-bargaining agree-
ment between the Respondent and the Arizona Carpenters
District Council (the Carpenters) covering a single unit of the
Respondent’s carpenter construction employees. A series of
collective-bargaining negotiations between the Respondent and
the signatory unions involving both individual sessions with
particular labor organizations and group sessions involving two
or more unions were conducted in the months of May through
July 1994 respecting these seven bargaining units.
Haworth and Rolleri represented the Respondent and the in-
dividual unions were represented by their own personnel. The
Charging Party Operators were represented by Dennis Teel,
business manager, and Representatives Don Ferguson and
Henry Montaño. The Charging Party Teamsters were repre-
sented by Business Representative Robert (Bob) Jones and
Steward Robert Wilson. The Charging Party Laborers were
represented by Representatives Rene Torres and Ermilio Tor-
res. The Carpenters were represented by Secretary/Treasurer
Rick Mills, Local 408 President and Business Representative
Bill Martin, and Don Fornear. A Federal Mediation and Con-
ciliation Service Mediator, Peter Cinquemani Jr., attended final
sessions.
Not all individuals were present at every bargaining meeting.
Notes of the sessions were taken by various individuals with
varying degrees of completeness. Substantial testimony as well
as various bargainers’ notes and affidavits describing the ses-
sions was received into evidence. The sessions generally, with
special focus on the discussions and agreements respecting
contract extensions, were closely litigated.

5 All dates hereinafter refer to 1994 unless otherwise indicated.
b. Initial sessions
Approximately six bargaining sessions were held in May be-
fore the contracts expired by their terms. Ted Haworth testified
that in the initial sessions, discussions were held respecting
procedural rules for the negotiations, but that that status of the
contracts beyond their May 31 facial expiration date was not
discussed until that date approached. At that time, Haworth
recalled, there “was an agreement to extend, a general agree-
ment, that if we schedule a new negotiating session the prede-
cessor agreement would stay in effect until that negotiating
session.” Haworth’s bargaining notes do not make mention of
this agreement, but he testified that his notes were sketchy and
he did not write down all that occurred.
Tom Rolleri testified that in the last bargaining session in
May, attended by the Operating Engineers and the Carpenters,
there was an:

agreement by the parties to continue the agreements in effect
beyond their scheduled expiration date from one negotiation
session to the next scheduled negotiation session automati-
cally. Or actually through the next negotiation session.

He testified that he asked for the same agreement from each of
the other crafts at their last bargaining session in May because
“we wanted to have continuation of the agreement during the
pendency of negotiations.” Rolleri specifically testified that
each Union agreed to such a procedure.6
Don Feguson denied that a blanket automatic extension pro-
cedure was either discussed or agreed to, but that in later ses-
sions specific agreements to extend the contract to the next
session were made. Dennis Teel testified that discussion of
contract extension occurred on May 24 or 25. He testified:

We basically came out of the discussions with the—the un-
derstanding that at the end, if it did go past expiration date that
we would, you know—we had the understanding that we
would acknowledge orally to one another if we wanted to ex-
tend the agreement.

Teel recalled that a proposal was made to automatically extend
the agreement, but that he preferred to keep his options open
and therefore did not agree to do so automatically. He testified
that “my position was that if at the end of a meeting we agreed
with the other side and acknowledged to one another which was
the case, then we would extend it to the next meeting.
Rene Torres testified that the Laborers reached agreement
with the Respondent at the bargaining session on May 24 to
extend the collective bargaining agreement. He initially an-
swered a question of counsel for the Charging Party Laborers:

Q. Did the Laborers agree with Granite Construction
that as long as the next negotiation session was set at the
end of any negotiating session, that the agreement would
remain in full force and effect?
A. Yes.

Torres subsequently testified that the old agreement was ex-
tended until a new agreement was reached. At that point in his
testimony he specifically recalled that this broader extension
6 Rolleri identified Bob Jones as the agent who agreed to this proce-
dure on behalf of the Teamsters, Dennis Teel on behalf of the Operat-
ing Engineers, Rick Mills for the Carpenters, and Ermilo Torres for the
Laborers.
GRANITE CONSTRUCTION CO. 213
agreement was reached as opposed to one limited to a meeting
to meeting extension.
Bob Jones recalled that before the contract expired:

we discussed what was going to happen after the 31st [of
May], and I told them that we would agree to continue work-
ing on a day-to-day basis, and that I would not personally take
any action on behalf of the Teamsters for work stoppage
without notifying them.

Jones identified this as an agreement to a “day-to-day exten-
sion.” He specifically denied that the Teamsters’ extension
agreement was on a bargaining meeting to bargaining meeting
basis. Indeed he testified he did not have the authority to enter
into such an agreement respecting the Respondent and that he
would never make such an agreement without the requisite
authority. He testified that it was a practice with the Teamsters
to enter into a longer extension agreement than day to day only
with employers who agree to apply the new agreement retroac-
tively and that such an agreement had never been forthcoming
from the Respondent. He testified further that he had a discus-
sion with his superior at the time, Terry Moser, respecting con-
tract extensions in the negotiations with the Respondent and
after discussing the fact that the Respondent would not commit
to a retroactive application of any new agreement, Moser gave
him only the limited authority to extend the contract on a day
by day basis, as described above.
Martin testified that the Carpenter’s essentially automatically
agree in most negotiations to extend the expiring contract until
a new agreement is reached and did so in the instant negotia-
tions. He corroborated Jones’ denials that any agreement was
entered into by the Teamsters to extend the contract from one
bargaining to the date of the next scheduled session.
The various bargaining notes of the sessions contain no ref-
erence to extension discussion until the June 9 bargaining ses-
sion.7 Rolleri’s notes for that session refer to extending the
agreements from “meeting to meeting.” Bill Martin’s notes
describe an exchange between Teel and Rolleri during the June
9 session:

D.T. Can we go meeting to meeting
T.R. Until notice is given?
D.T. We need to understand
T.R. The current agreement that has expired
we’ll work under the agreement from meeting to meet-
ing

Martin testified that these entries in his notes reflected an ex-
change respecting extension of the contract on a meeting to
meeting basis. He further testified Teel agreed to such an ex-
tension.
c. Later sessions
Bargaining continued through June and into the first part of
July. Respondent’s agents Rolleri and Haworth testified that as
bargaining progressed during this period, there were rumors of
a possible strike which caused them to seek specific confirma-
tion from the Unions at each bargaining session that the rele-
vant contract would be extended to the next bargaining session.
Union Agents Teel, Ferguson, Martin, and Jones testified that

7 The June 9 session was apparently a session with the Carpenters
and Operating Engineers, but Jones for the Teamsters was also in atten-
dance. Jones testified that he attempted to attend as many Operating
Engineers bargaining sessions as he could during the negotiations.
while some extensions were discussed and agreed to at some
meetings, this was sporadically rather than consistently done.
A bargaining session was held on July 5 attended by the Re-
spondent, the Carpenters and the Operating Engineers. Rolleri
testified that at the session the bargainers agreed to hold the
next bargaining session on July 11 and he asked: “Do we still
have agreement to keep the agreement in effect from one nego-
tiation session through the next scheduled negotiation ses-
sion[?]” and that Teel and Mills on behalf of their organizations
each responded with an affirmative “yes.” Haworth corrobo-
rated Rolleri’s testimony of such an exchange at the end of the
meeting.
Bill Martin’s notes and testimony indicate that on July 5, af-
ter Rolleri proposed a new bargaining session on July 11 and
after the date and time were confirmed by the bargainers, the
following exchange took place:

Tom Rolleri says, “Okay, status quo until then.” Dennis Teel
says, “Yes.” Tom Rolleri says, “We’ll keep the agreement
we’ve got in place.” And, Dennis Teel says, “Yes.” Rick
Mills says, “Yes.”

A bargaining session was held on July 6 attended by the Re-
spondent represented by Haworth and Rolleri and the Team-
sters represented by Jones and Wilson. Rolleri testified that due
to Jones’ vacation commitments, the parties agreed to hold their
next bargaining session on July 25. Rolleri testified he “asked
Bob Jones if he continued to agree to keep the agreement in
effect through our next regularly—through our next agreed
upon negotiation date” and that Jones so agreed. Haworth re-
called Rolleri “taking the lead” by asking Jones: “And the old
agreement is extended until the next meeting; is that correct,”
and further recalled that Jones answered: “yes.” Haworth testi-
fied that an additional reason for raising the issue of contract
extension with the Teamsters on July 6 was the relatively sub-
stantial period of time which was to pass until the next sched-
uled bargaining session on July 25.
Jones testified that no discussion was held at the July 6 meet-
ing respecting a contract extension beyond the day to day ex-
tension that had been agreed upon earlier. Bob Wilson testi-
fied: “Well, I think Bob Jones, you know, as we brought up,
Bob Jones asked for an extension, you know, what we were
working on a day-to-day contract. And it was agreed.”
A bargaining session was held between Respondents and the
Laborers on July 8. There is no dispute that an agreement was
reached at that session keeping the agreement in place until the
next negotiation session to be held on July 11.
The earlier scheduled bargaining session was held on July 11
starting at 10 a.m. attended by the Respondent represented by
Haworth, and Rolleri, the Carpenters represented by Mills,
Martin, and Fornear and, the Operating Engineers represented
by Teel, Montaño, and Ferguson. Also present was Federal
Mediator Peter Cinquemani. The negotiators at his session
were aware that there was to be a second session that day be-
tween the Laborers and the Respondent scheduled for 4 p.m.
Martin, one of whose duties for the Carpenter’s was to take
careful notes of the sessions, took notes of the July 11 session.
The notes indicate that in the afternoon Mills told the others
that the Carpenters’ negotiators had been given “marching or-
ders” by their governing body because there were only two
Carpenters’ represented employees involved in the negotia-
tions, that insufficient progress was being made and that the
Carpenter’s-representatives were “wasting our time here.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
Mills suggested the Carpenters should “abstain” from attending
further bargaining sessions until the differences between the
Respondent and the Operating Engineers were resolved. Mar-
tin’s notes suggest that Rolleri answered Mill’s suggestion
with the assertion that it was the Carpentersí decision.
After additional colloquy, Mills told Rolleri that the Carpen-
ters and the Respondent would keep the old agreement in
place until a new agreement was consummated and Rolleri
agreed. Teel asserted that he wanted “it to be known that the
crafts are still together.” Mills agreed and said the Carpenters
would leave. Teel asked for a caucus before their departure and
the parties broke for a caucus which by the notes extended from
2:10 to 2:24 p.m.
Martin’s notes indicate that the parties returned from the
caucus and with the Carpenters still present dealt with bargain-
ing proposals until another caucus was held which extended
from 2:51 to 4:06 p.m. Negotiations again resumed with Teel
distributing a final offer. Rolleri on receiving the proposal as-
serted: “Obviously we’ll need some time to go through this and
we would like to set up another meeting.” Teel asked: “how
long are we going to drag this out,” and Rolleri responded:
“We’re trying to get an agreement.” Teel then complained of
the Respondent’s proposed reductions in benefits and Haworth
asserted the Respondent was not so proposing. The Martin
notes’ final entry asserts: “Carpenters out at 4:12 p.m.”
The Operating Engineers’ representative Montaño’s notes of
the session confirm that after the luncheon break the Carpen-
ter’s representative Mills wanted “to move out” because the
sessions were wasting their time. At the end of the session,
Montaño’s notes reflect that Rolleri stated that the Respondents
had a bargaining session with the Laborers at 4 p.m. and as-
serted: “We need to set another meeting date.” The notes sug-
gest that Teel complained: “How long are we going to drag
this out?” and argued that the Respondent was proposing to cut
benefits, which assertion was denied. The notes then contain a
final entry: “Next meeting set July 19 [for] 10:00 a.m.”
Rolleri testified respecting his memory of what occurred at
the end of the meeting regarding the issue of contract extension.

It occurred differently than in the previous meetings in that
before I had a chance to raise the issue, Rick Mills of the car-
penters’ union came around the table and said to Ted Haworth
and myself that they were going to continue the agreement
into effect until we met again. And that everything would
stay as is until that time. As soon as that was said by Mills, I
swung around and looked across the table where Dennis Teel,
representing the Operating Engineers, was sitting, and asked
him if he also agreed to keep the agreement in effect through
our next negotiation session. And we had agreed upon a date
when that session would be, and he looked down at the floor.
His face appeared to turn red, and then he nodded his assent,
his head went up and down.

Haworth testified:

Mills, at the end of the meeting, at approximately 4:00
o’clock stood up and said, “I’m not getting anywhere with
these negotiations”. He felt like the—he said that he felt the
Carpenters were close to an agreement with the company and
that he wanted to step back for a period of time and let Gran-
ite and the Operating Engineers work out their differences and
then he would come back to the table at a later date. And he
stood up and made a point that he would call us to schedule
another meeting but we wouldn’t schedule another meeting at
that time and made a specific point that the—to Tom Rolleri
that the agreement was extended to the next meeting even
though the date wasn’t set . . . his point was that he would call
and schedule another negotiating session but he wanted to
take some time off and make the point that even though a date
had not been set for another negotiating session that the old
agreement was extended to that next meeting. He said that to
Tom Rolleri. . . . Okay. Mr. Rolleri looked at Mr. Teel and
said, “And our agreement is extended till the next meeting”,
and Mr. Teel nodded affirmatively . . . and the meeting ad-
journed because we had the Laborers waiting for us and that
was after 4:00 o’clock and the meeting was—the negotiating
session with the Laborers was scheduled to start at 4:00
o’clock.

Dennis Teel testified that at the end of the meeting on July
11 the Carpenters presented a last offer. He recalled:

After that the Carpenters explained to the company that they
were going to be bowing out and they–you know, I believe
the company was somewhat shocked, too, like we were that
they were going to leave the table until we got our business
done. They folded their books up and packed their bags and
as they were filing out I believe it was Mr. Mills that asked
Mr. Rolleri if he wanted to extend their agreement and Mr.
Rolleri said yes. There was not a meeting set that I can re-
member, and then Carpenters left the hall.

Teel specifically denied that there was any discussion after
those events or at any other time in the session about extending
the agreements between the Operating Engineers and the Re-
spondent to the next scheduled meeting on July 19. Messen-
gers Ferguson and Montaño corroborated Teel’s denials.
Mills testified that at the end of the meeting he told the Re-
spondent that he had to leave and that the negotiations between
the Respondent and the Operating Engineers were not benefit-
ing the Carpenters and that they did not intend to continue par-
ticipating in the negotiations in their current state. As he was
leaving, he told the negotiators:

[T]he Carpenters would work under the agreement that ex-
pired, the previous agreement of May 31, ‘94 until both the
Operators and the company got something closer to where we
could get back together all of us and finish up in our agree-
ment.

At that point Mills gathered his papers and left with his negoti-
ating team. He specifically testified that he did not hear any
exchange between Rolleri or Haworth and Teel regarding an
extension of the Operating Engineers agreements.
A second bargaining session was held on July 11 attended by
agents of the Respondent and the Laborers. Rene Torres testi-
fied that it remained understood between the parties that the
contract would remain in effect as long as a new bargaining
session was scheduled. At the July 11 session a new session
was scheduled for July 26.
3. The strike and related events
a. Prestrike events
Dennis Teel testified that on the afternoon of July 13 after
discussing the matter with Ferguson and Montanõ he decided to
take the Operating Engineers out on strike. Following the
strike decision he testified he placed a courtesy telephone call
to Teamsters Representative Mosher who brought Laborers’
representative Emilio Torres into the call. Informed of the
GRANITE CONSTRUCTION CO. 215
Operating Engineers decision, he Teamsters determined to join
the strike, the Laborers did not. Teel contacted his counsel and
obtained the language of a letter to send to the Respondent.
The letter was prepared and sent by facsimile telephonic trans-
mission and mail to the Respondent at its Tucson office just
before the close of business on July 13. It asserted:

This is to inform you that, because we are not making any
progress on finalizing our collective bargaining agreement,
[the Charging Party Operating Engineers] is terminating the
oral agreement to extend the contract effective July 14, 1994.
At that time, we will pursue all legal options to secure a col-
lective bargaining agreement for our members. We stand
ready to meet with you at any time to conclude the negotia-
tions.

A similar letter was sent by the Charging Party Teamsters in a
similar manner. When the Respondent’s office personnel re-
ceived the two letters, Haworth, who was en route to San
Diego at the time, was contacted and notified of the letters’
content. Haworth the made preparations to return to Tucson
and initiated various actions in anticipation of an immediate
strike.
b. The strikes
(1) Thursday, July 14, and Friday, July 15
The morning of Thursday, July 14, the Charging Party Oper-
ating Engineers and the Charging Party Teamsters commenced
a strike against the Respondent picketing its operations with
picket signs that asserted, inter alia, “On strike against Granite
Construction–no contract.” Virtually all Operating Engineer
and Teamsters-represented unit employees joined the strike or
honored the picket lines. A substantial number of Laborers’-
represented employees also honored the strikes.
On July 15 the Operating Engineers filed the charge in Case
28–CA–12629 against the Respondent alleging in part in the
body of the charge form:

Also, on or about July 14, 1994, the employer threatened em-
ployees with termination, and did in fact terminate certain
employees because they engaged in or supported a strike
commenced by [the Operating Engineers] on or about July 14,
1994.

The [C]harging [P]arty seeks, as part of the remedy in this
case, that the Board make a determination that the strike is an
unfair labor practice strike.

On the same day, the Laborers filed the charge in Case 28–CA–
12633 against the Respondent alleging in the body of the
charge:

Since on or about July 14, and continuing to date, [the Re-
spondent] has threatened employees with termination and, on
or about July 14, 1994, it terminated employees Francisco
Zengia, Kenneth Przyblski, and others, because said employ-
ees supported a strike initiated by the Operating Engineers.

The charges on their reverse side each bear the inked impres-
sion of a Regional date stamp entry: “Received 9:30 p.m. 15
July 1994”8

8 I administratively notice that Region 28’s Phoenix office hours do
not encompass 9:30 in the evening and conclude that the a.m.–p.m.
setting on the date stamp was incorrect.
On July 15, by facsimile transmission and regular mail coun-
sel for the Laborers sent the Respondent a letter asserting that
the Laborers’ “are not engaging in economic picketing at this
time.” The letter continued:

[The Laborers] believe that Granite Construction Company
has committed and is continuing to commit unfair labor prac-
tices in violations of the National Labor Relations Act. In that
regard, the [Laborers] are filing such a charge with the Board
on this date.

Haworth testified to a midday telephone conversation with
Torres in which he was assured that the Laborers were not on
strike. Torres denied that the conversation occurred.
Guillermo Lopez, a Laborers-represented employee at the
time, testified he attempted to enter the Respondent’s main
facility on the 15th and found the gate locked. He spoke to the
guard about obtaining his pay check and was told checks would
be distributed later that day at about 3:30 p.m. outside the gate.
He testified that when he returned and picked up his check at a
desk set up outside the facility along with other employees, he
learned from those employees that the Teamsters’ and Operat-
ing Engineers’-represented employees as well as many of the
Laborers’-represented employees had been terminated by Re-
spondent.
Various witnesses called by the Respondent testified that the
gates of the main Tucson facility of Respondent, while guarded
by security staff in the early days of the strike, were not locked
nor were any employees who wished to enter to work for the
Respondent denied access. Rather, the Respondent solicited its
Laborers’-represented employees to come to work and initially
expected them to do so.
On July 14 and 15, Haworth, in consultation with Rolleri and
counsel, determined to fire all striking Operating Engineers’
and Teamsters’-represented unit employees.9 At the end of the
working day on Friday the 15th of July, 73 employees10 repre-
9 Haworth placed the date of the decision as Friday, July 15. Rolleri
placed it on July 14 or 15.
10 The Operator Engineers’-represented employees discharged on
July 15 were stipulated to be:
Arriaga, Juan Avila, Jose
Bingham, Frederick Bowman, Bernard
Butler, Glen Canady, William
Casillas, Esgardo Click, Scott
Cooper, Jon Corrales, Richard
Crosby, Mathew Cvitkovich, Dick
DeLaOssa, Abel Donald, Terry
Drake, John Dunham, Walter H.
Dunham, Walter R. English, Timothy
Figueroa, Richard Galloway Eddie
George, David Green, Lewis
Gustafson, Tom Hancock, Kent
Hernandes, Julius Hindman, Raymond
Horne, Rock Hosterman, Stanley
Hulsey, Donald Hunziker, Eugene
Iverson, Lester Jacobs, Clinton
Jordan, Charlie F. Jr. Jordan, Charlie F. Sr.
Marsteen, Stephen Martinez, Florentino
McCormick, Kenneth McCune, Larry
McDaniel, Bobby Joe McDaniel, William
McNeeley, Brian Mercer, John
Mercer, Timothy Moody, Jeff
Mozingo, Dannie Musselman, Richard
Olivares, Jose Price, David
Radloff, Kenneth Ramirez, Mike
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
sented by the Operating Engineers and 41 employees11 repre-
sented by the Teamsters were discharged by letters dated July
15 which asserted that each employee was being discharged for
engaging in improper strike activity prohibited by the contract.
At the same time 14 of the Laborers’ represented unit were
discharged.12
Haworth testified respecting the Laborers’ represented em-
ployees:

Q. BY MR. HARRIS: Okay. And some of the Laborer
employees, Laborer represented employees, came to work
on the fourteenth of July, isn’t that correct?
A. Yes. Some of them continued to come to work for
quite some time.
Q. Right. Some came to work and left the same day,
is that true?
A. Yeah, we had every derivation.
Q. And some didn’t come to work at all?

Renteria, Alfredo Roberts, Diane
Romero, Ernesto Romero, Juan
Sainz, Jerry Scott, Kyle
Scott, Ron Sierra, Pablo
Sipe, Dennis Spelbring, Suzzane
Stockbridge, Jeri Stubbins, George
Sturgis, Douglas Sullivan, Carol
Tolley, Thomas Trivitt, James
Tynes, Gregory Tynes, Teddy
Van Prooyen, Brent Wallen, Jeff
Watson, Earl Weller, Fred

11 The Teamsters’-represented employees discharged on July 15
were stipulated to be:
Abeyta, Ernesto Archer, Edward
Arter, Wayne Ashby, Homer
Ballentine, Robert Bates, Paul
Carrasco, Mario Clark, Ricky
Clarke, Connie Farruggia, Salvatore
Fitzgerald, Maureen Gauthier, Richard
Gillock, David Green, George
Gustafson, Susan Hartig, Torry
Hayes, Mina Hewes, Daniel
Hjightower, John Hull, Dwain
Knipp, Kenneth R. Sr. Montoya, Quirino
Olm, John Padilla, Henry
Peck, John Sandifer, Larry
Sipe, James Turney, Charles
Walker, Carlton Willis, Roy

12 The parties stipulated to a total of 24 discharged Laborers’-
represented employees. The termination slips put into evidence indi-
cate that 12 individuals were issued slips dated July 15, 10 were issued
slips bearing dates in the period July 18 to 25. Two individuals, messrs.
Ruben Gallardo and Florencio Trahin, did not have termination slips in
evidence nor were their dates of termination otherwise established. The
complaint alleges, the answer admits and the parties further stipulated
that all the Laborers’ represented employees were discharged on or
about July 15. Gallardo testified, but did not address this issue. Given
the burden of proof on the General Counsel as to the allegations of the
complaint, I find it is appropriate to conclude that these two individuals
were terminated on July 15. Given that conclusion the 14 Laborers’
represented employees discharged on July 15 are:
Chanez, Jose Duarte, Jesus
Gallardo, Ruben Gonzales, Joel
Lopez, Guillermo Lugo, Rodolfo
Meza, aureano Przybylski, Kenneth
Ruiz, Roberto Sanchez, Victor
Sturgis, Chad Trahin, Ruben
Valdez, Carlos Zengia, Francisco

A. That’s correct.
Q So those who left and those who didn’t come to
work, they were discharged on July 15?
A. Well, that was nebulant, it was hard to tell with re-
gard to the Laborers who was on strike. Their counsel
said they weren’t on strike. So I don’t believe very many,
if any of them, were terminated on July 15. There may
have been a few.
(2) On and after July 16
While there is little doubt the parties were active in various
ways over the weekend of July 16 and 17, no discharges oc-
curred and the record is not clear respecting whether the Re-
spondent engaged in commercial activity or the Operating En-
gineers and Teamsters engaged in significant picketing. Jones
credibly testified however that over the weekend of July 16 and
17, the placard wording on the Operators’ and Teamsters’
picket signs was changed to “unfair labor practice.”
On the morning of Monday, July 18, 1994, the Laborers
commenced a strike against the Respondent picketing its opera-
tions with picket signs that proclaimed an unfair labor practice
strike against the Respondent. As Laborers were identified by
Respondent as participating in the strike or refusing to go to
work because of the picket line, they were terminated for par-
ticipating in an illegal strike.13 Over the period July 18 through
25 an additional 10 for a total of 24 Laborers’-represented em-
ployees14 were discharged. Their termination slips bore the
uniform explanation: “participation in illegal strike in violation
of collective bargaining agreement.”
On July 19, 25, and 26, the Respondent and the respective
Unions attended their earlier scheduled bargaining sessions. At
each session the Respondent distributed a letter to the particular
Union indicating that the contracts had been in effect up to the
scheduled bargaining session and, that strike activity before that
time was in violation of the agreements. The letters added that
the Unions’ conduct respecting the strike was improper and
illegal and caused the Respondent to reevaluate its voluntary
recognition of the Unions. The letters announced that the con-
tracts were not to be extended further, were expired, and that
the Respondent repudiated both the expired agreements and the
existing bargaining relationships. The Respondent thereafter
implemented certain changes in each unit’s terms and condi-
tions of employment and hired both new and previously dis-
charged employees into unit positions.
The Respondent early on determined that discharged em-
ployees were eligible to return to work and solicited them to do
so. Over time commencing after the withdrawal of recognition
in each unit at the meetings noted above, some discharged em-
ployees applied for and were rehired by the Respondent in the
13 Some Laborers’-represented employees never returned after July
13 and the Respondent concluded on and after July 18 that they were
honoring the strike and fired them in consequence. Other employees
worked for a period and thereafter went on strike. Thus, for example,
James Pete worked on July 18, but refused to do so on July 22 when he
returned for his check and was fired in consequence.
14 The remaining 10 Laborers’-represented employees discharged
during the period July 18 through 25 are:
Arvayo, Ignacio Bailon, Mercedes
Crater, Daniel Enriquez, Jesus
Escalante, Jorge Miranda, Richard
Pedrosa, Richard Pete, James
Ripalda, Octavio Spean, Rexson

GRANITE CONSTRUCTION CO. 217
bargaining units. The Respondent has not again granted recog-
nition nor resumed bargaining with any of the Charging Parties.
The three strikes apparently continue.
4. Conduct alleged to violate Section 8(a)(1) of the Act
The General Counsel alleged a variety of statements by
agents of the Respondent to employees during the strike as
independent violations of Section 8(a)(1) of the Act and, in
some cases, also alleges the conduct to be violative of Section
8(a)(5) of the Act. The testimony respecting these events is in
some conflict. Importantly, however, the Respondent makes a
variety of legal arguments that the allegations, even if sup-
ported by the facts, may not in the context of the strikes herein
be found to violate the Act. The applicability of these defend-
ing legal arguments depend in important part on my findings,
infra, respecting whether or not and, if so during what periods,
the strikes of the Charging Parties were prohibited, economic or
unfair labor practices strikes.
Given this rather unusual necessity of making legal determi-
nations respecting certain allegations of Section 8(a)(3) of the
Act in conjunction with determining the nature of the strikes
over time, it is appropriate to defer both a fuller recitation of the
evidence offered respecting the allegations and the analysis and
conclusions respecting them until the other allegations of the
complaint are addressed. Accordingly, a complete treatment of
the Section 8(a)(1) issues is presented infra.
B. Analysis and Conclusions
1. The discharge of the Operating Engineer and Teamsters-
represented employees
There is no dispute and, indeed, the parties stipulated the
specific individuals terminated by the Respondent on July 15 in
consequence of the strikes. The Respondent argues that the
discharges were proper because the initial strikes of the Charg-
ing Party Teamsters and Charging Party Operating Engineers
were illegal strikes in breech of the no-strike provisions of the
old contracts which had been specifically extended beyond
their expiration dates and were in effect at the time of the
strike’s initiation. The Charging Parties and the General Coun-
sel strongly contest this assertion.
The analysis of the allegations that the discharges violated
the Act thus depend at their threshold on a resolution of just
what occurred at the bargaining table and the legal conse-
quences thereof. Accordingly, it is appropriate to turn initially
to a resolution of the factual conflicts and legal implications of
the bargaining table conduct.
a. Resolution of conflicting testimony respecting extension of
the old agreements
(1) Overview of issues and arguments
The Respondent argues that in the 1994 bargaining, a general
ongoing commitment by the negotiators was made to extend the
old contracts on a meeting to meeting basis, which agreement
continued through early July negotiations and therefore ex-
tended the agreements to negotiation sessions scheduled to
occur well after the strikes’ inception by the Unions. Further,
the Respondent argues that additional, if redundant, specific
agreements were entered into between the Respondent and the
Charging Party Teamsters on July 6 and the Respondent and
the Charging Party Operating Engineers on July 11, to extend
the agreements to the next scheduled session.
The General Counsel and the Charging Parties argue that
there was neither a general on going agreement to extend any
Operating Engineer or Teamsters contract on a meeting to
meeting basis, nor was their a specific agreement on July 6 or
July 11 to extend any Operating Engineer or Teamsters agree-
ment to the next scheduled bargaining session.
In advancing their arguments, the parties rely on the testi-
mony of their own witnesses and attack the credibility of the
testimony of opposing witnesses. These arguments were under-
taken at trial and on posthearing brief by marshaling a careful,
critical analysis of the various witnesses’ testimony and their
supporting notes with emphasis on inconsistency, bias and the
traditional impeaching techniques of trial practitioners. Fur-
ther, each side argued a general bad faith and controlling hostil-
ity and willingness to testify falsely on the part of the opposing
witnesses which would merit disbelief in their testimony.
(2) Gambit declined—no liars found
In resolving the conflicting versions of events during the
bargaining sessions described in part infra, it is appropriate to
note at the onset some of the broader arguments made by the
parties which I have found unpersuasive. In general, these
arguments sounded in asserted reasons to discredit the testi-
mony of various witnesses as willfully false.
First, I have considered and reject the arguments of the Gen-
eral Counsel and the Charging Parties that the Respondent,
through its agents Haworth and Rolleri, was engaged in a calcu-
lated plan or course of conduct to create or provoke a situation
in which the Unions would engage in a strike and Respondent
could discharge its represented employees and repudiate its
bargaining relationships with the Unions. Thus, I decline to
find that Respondent entered into the series of events in contro-
versy herein willfully and with knowledge aforethought, in
effect relying on trick, deceit, and subterfuge to cause a strike
which thereafter could consciously be used as pretext to justify
the otherwise illegal course of terminating represented employ-
ees and withdrawing recognition and bargaining from the Un-
ions.
I reach this conclusion for several reasons. First, although
the Charging Parties assert that Respondent engaged generally
in bad faith bargaining, the General Counsel has not alleged
such conduct as a violation of the Act and, without such allega-
tions in the General Counsel’s complaint, findings of bad-faith
bargaining are precluded. Second, and more importantly,
based on a close observation of Respondent’s agents Rolleri
and, particularly, Haworth, during their testimony and in con-
sideration of the entire record herein, I found Rolleri and Ha-
worth to be straight forward witnesses with a convincing de-
meanor. Thus, I believed them, again principally the repeated
demurrers of Haworth, when they testified that it was not their
intention, plan or even expectation that a strike occur or that the
Unions were being consciously baited or provoked by the Re-
spondent’s agents. Further, and on the same basis, I found their
testimony respecting what was said and done during bargaining
to be a truthful attempt to recount events as they transpired.
I also reject Respondent’s attacks on the credibility of the
Union’s agents on similar grounds. Thus, Respondent would
have me view the testimony of the Unions’ agents in light of
their institutional interests, perceived inadequacies of de-
meanor, argued inconsistencies and, particularly as to Teel,
purported desire in portions of the negotiations to avoid inclu-
sion of certain matters in any final written collective-bargaining
agreement and conclude the Union witnesses were trying to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
conceal their agreements to extend the contracts so that they
might avoid the legal consequences of their strikes.
The Respondent argues ably and at length that the testimony
and behavior of the Union’s agents, the wording of their July
13 communications to the Respondent, quoted in part supra,
their conduct at the first strike meetings—all indicate that at
the time they called their strike they well knew that the con-
tracts had been extended by specific agreement of the Respon-
dent, the Teamsters and the Operating Engineers, and that their
position and testimony during the trial that such agreement was
never entered into is simply an after the fact fabrication de-
signed to conceal the truth and produce an unjust application of
the Act. Thus, the Respondent argues that these men lied in
their testimony and that their version of events should be re-
jected.
Respondent’s arguments like the General Counsel and the
Charging Parties’, supra, fail not for want of skill in argument
but rather because, rather singularly for a situation presenting
fundamental testimonial conflicts, I formed the firm belief in
observing the testimony of the bargaining agents and in consid-
ering their demeanor in the context of the record as a whole—
including the impeaching arguments and imprecations of coun-
sel—that each Union bargaining agent witness was honestly
endeavoring to describe the events as he recalled them. Thus, I
do not believe, and on this record explicitly reject the proposi-
tion, that the Union bargainers well knew they had agreed to
extend the contract before the strike, knew they were bound to
the no-strike terms of the contract at the time they initiated the
strike and came to their present position only after the events,
consummating their concealment and falsification by perjuring
themselves at the trial.
In sum, to a degree sufficiently unusual in my experience as
a fact finder to be worthy of comment, I conclude the witnesses
to bargaining events—the General Counsel’s, the Respondent’s
and the Charging Party’s all—were honestly testifying to what
they recalled.
3. Findings respecting extension discussions during bargaining
A simple finding that the witnesses were truthful does not re-
solve the credibility issues herein. Simple honesty is not incon-
sistent with mistake, misperception or forgetfulness. While
some of the testimonial variance at issue herein is susceptible to
easy harmonization with differences explained by consideration
of the different perspectives of the witnesses, important por-
tions of the testimony are at fundamental variance. Without
resolving every difference in testimony, the critical credibility
resolutions respecting the extensions agreements during bar-
gaining appear as follows.
I credit the testimony of the Respondent’s agents Rolleri and
Haworth that the extension agreements discussed in bargaining
were consistently phrased as “meeting to meeting” rather than
“day to day” or “until agreement is reached” extensions. The
specific language appearing in the bargainers’ notes is consis-
tent with this assertion. The Respondent persuasively argues
that the other versions of extension agreement wording de-
scribed by witnesses were implausible because extensions in
those terms would not be likely bases for agreement. Thus a
“day to day” extension would not have been of value to the
employer who was seeking extensions as assurance that a sur-
prise strike would not disrupt his operations. The Laborers’
recollection that they and the Respondent regularly agreed upon
an extension of the old contract “until agreement is reached” is
similarly unlikely. In all events, such an agreement was far
beyond what was admittedly discussed in sessions dealing with
the Teamsters and Operating Engineers’ contracts.
I realize in making this finding that I am discrediting the
contrary assertions of Jones, a witness acknowledged by the
Respondent’s agent Haworth to be an honest man and one who
testified credibly that he had no authority to enter into such an
extension arrangement, and of Wilson, Jones’ colleague in
negotiations. I do so, in part, because of the persuasiveness of
the Respondent’s argument noted above that a day-to-day ex-
tension agreement would not have served the interests of and
hence not have been proposed or accepted by the Respondent.
Further, Wilson recalled that the extensions were agreed to by
the Unions through either Teel or Jones depending on the par-
ticular meeting. Thus, Wilson drew no distinction between the
extension agreements entered into by the Teamsters and the
Operating Engineers, and the notes and others testimony of the
Operating Engineers’ extension agreements make it clear that
they were not “day to day” but rather “meeting to meeting.”
The notes of the June 9 bargaining session make it clear that
such extension language was used on that day when Teamsters
representatives were present. I conclude that Messengers.
Jones and Wilson were simply mistaken and that the words
used by the Respondent and the Operating Engineers and the
Teamsters describing their extension agreements were “meeting
to meeting” and not “day to day.”
I also credit Rolleri and Haworth over Jones and Wilson re-
specting the specifics of the agreement discussed on July 6.
Thus, I find that Jones at the July 6 session agreed to a meeting
to meeting extension of the old contracts until the next bargain-
ing session which session was scheduled for July 25. Mr. Jones
denied any such extension discussion occurred. Wilson testi-
fied that only a “day to day” extension was discussed and
agreed to at the July 6 meeting. I have found above that the
extensions discussed were rather “meeting to meeting” agree-
ments. Thus at least three of the four individuals who testified
about the events that day recalled that an extension of some
type was discussed and agreed to.
In light of the specific memories of Rolleri and Haworth on
the July 6 events and the strong probability that the unusually
long period of time until the next scheduled session would have
prompted an inquiry by them respecting the contracts’ exten-
sion as well as Wilson’s memory that an extension agreement
was discussed and agreed to, I find Rolleri and Haworth’s
recollections the more credible supported to the extent de-
scribed above by Wilson. I do not find that either Jones or
Wilson was other than fully forthcoming in his testimony.
Each held the view—albeit mistaken—throughout the entire
prestrike bargaining that the extensions agreed to were day to
day and thus susceptible to cancellation on brief notice to the
other party. Such an extension agreement would not have been
a significant fetter to the Unions’ tactical choices respecting a
strike and would therefore not have been of great consequence
to the Teamsters.15 Jones in my view has simply forgotten the
agreement which occurred on the 6th and Wilson simply con-

15 These findings are consistent with the role of the Teamsters’
agents as they participated in the strike decision process and in the
preparation of the Teamsters’ July 13 communication to the Respon-
dent. On this record I find that no Teamsters representative believed
that the Teamsters had committed to an extension of the contract that
could not be validly and timely terminated by the notice ultimately
given.
GRANITE CONSTRUCTION CO. 219
tinued to misrecall the nature of the contract extension agreed
to.
Respecting the testimony concerning negotiations between
the Operating Engineers and the Respondent, there is some
degree of variation in recollections concerning the frequency of
agreements proposed and agreed on as the bargaining pro-
ceeded. The differences are not significant nor will they be
resolved herein. It is clear that an agreement to extend was
entered into at the July 5 meeting. The critical factual dispute
centers on the July 11 session.
The testimony respecting the July 11 session is largely con-
sistent16 until the events occurring as the Carpenters departed.
Unlike the pattern of earlier sessions, the date of the next bar-
gaining session between the Operating Engineers and the Re-
spondent had not been determined earlier in the session. Fur-
ther, when the Carpenters were preparing to exit the bargaining
session a certain degree of confusion inevitably occurred as the
men gathered their things and the other parties—cognizant of
the upcoming Laborers bargaining session realized the meeting
was at an end. There is no doubt and I find that in these con-
cluding moments in the session, with Mills on his feet in prepa-
ration to depart, Mills told the Respondent’s agents that even
though no new session has been agreed on for the Carpenters,
the old contract would remain in place and Rolleri agreed.
Messengers. Rolleri and Haworth, at set forth in greater de-
tail above, testified that immediately after still sitting across the
table and asked him if he also agreed to extend the Operating
Engineers’ agreement to the next bargaining session. Rolleri
testified that Teel’s answer was nonverbal: “[H]e looked down
at the floor. His face appeared to turn red, and then he nodded
his assent, his head went up and down.” Haworth also testified
Teel “nodded affirmatively” in response to Rolleri’s question
respecting extension. Thus, the Respondent relies on Haworth
and Rolleri’s descriptions of Teel’s physical movements rather
than spoken words as binding expressions of adoption and
agreement.
Teel recalled the parting assertions of Mills but, corroborated
by Ferguson and Montaño, denied that he had been asked by
Rolleri to agree, let alone agreed, to an extension of the con-
tract at that point in the meeting or at any other time that day.
Mills and Martin described the final events of the session simi-
larly to the others up to the point where the Carpenters agreed
with the Respondent to continue the contract, but specifically
denied hearing any subsequent discussion by Rolleri and Teel
dealing with an extension of the Operating Engineers’ agree-
ment. Their testimony was not so much that such an exchange
did not or could not have occurred, but rather as a result of their
own activities in departing and the numerous people at the ta-
ble, they simply did not hear or otherwise notice what these
individuals said or may have said to one another.
While the parties argued a broad range of points, in effect
marshaling the entire record to buttress their respective views
on how this factual conflict should be resolved, the dispute is a
narrow one. As noted, supra, I have carefully considered the
arguments of the parties suggesting that one side or the other to
a greater or lessor degree conspired to falsify their testimony

16 Although Martin’s notes indicate that the Carpenters’ protests
about progress in negotiations and announcement of an intention to
discontinue negotiations occurred far earlier in the negotiations that
others recalled, it seems there was a repetition of the remarks at the end
of the meeting which were not recorded by Martin inasmuch as he was
preparing to leave.
respecting these and other events. I have rejected those argu-
ments in general and I do so here as to the specifics in dispute.
I accept the arguments of the parties however that this critical
exchange: (1) would not have been easily recalled by an honest
witness, if it had not occurred and (2) would not have been
easily forgotten by a knowing participant or observer given the
events that followed in the coming days, had it in fact occurred.
My acceptance of these logical arguments produces the seem-
ingly absurd situation: I have found that an important matter
that would not likely have been misrecalled is described in
essentially diametrical opposition by witnesses whose testi-
mony has explicitly been found to be honest.
The resolution I make based on this record and the credibil-
ity resolutions noted is that all the witnesses to the critical
events were honest in testifying to what they believed occurred.
Thus, I credit Rolleri and Haworth’s testimony respecting the
question posed Teel and their observation of Teel’s apparent
response thereafter to the extent consistent with my further
findings below. I also credit the testimony of Teel, Ferguson
and Montaño that they did not see or hear Teel being asked to
extend the contract and that he did not in fact agree to a con-
tract extension at the meeting of July 11. I find that in the con-
fusion that was apparent at that point in the July 11 meeting as
the parties were moving around the table and the Carpenters
were preparing to make their exit, the extension question was
posed to Teel—as testified to by Respondent’s agents, but that
the question was not heard or comprehended as such by Teel
or his colleagues—as the Charging Party Operating Engineers’
agents testified—and Teel’s downward look and nod of his
head occurring thereafter as again described by Rolleri and
Haworth were not in response to the unheard extension ques-
tion, but rather some other circumstance not recalled by any
witness nor otherwise identified on this record.
This credibility resolution smacks suspiciously of Solomon’s
compromise remedy rather than a finding of fact based on a
resolution of conflicting evidence. I do not however, simply
split the difference respecting this conflict out of inability to
resolve the differing versions of events. Nor do I find this reso-
lution describes conduct inconsistent with subsequent events.
Rather, the occurrence of a critical mistake respecting what
took place at the meeting of July 11 helps to explain the subse-
quent views of each party in the negotiations, apparent on this
record, that the opposing side had a malign plan to take im-
proper advantage and thereafter testified falsely to conceal
unpleasant and revealing conduct. Thus, for example, the Re-
spondent sought to demonstrate that in the Union’s strike deci-
sion process the fact that an extension agreement had been
entered into by the Operating Engineers was known to the deci-
sion makers.17 I credit the denials of the participants that this
was so. The General Counsel and the Charging Parties sought
to establish that the Respondent’s agents, especially Haworth,
created the fiction of a July 11 extension agreement as a pretext
to discharge employees for other improper reasons. I have
found, supra, that this was not so. The fact that each side
viewed the events of the July 11 as described and took the ac-
tions that each did thereafter lends support to my credibility
resolution herein.
17 Similarly, as found supra, I have found that the Teamsters repre-
sentatives involved in the decision to go out on strike did not believe
that a meeting-to-meeting extension agreement was in effect respecting
their contracts and would not have had such a belief during the strike
decision events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
Nor do I view this resolution as inconsistent with probabili-
ties generally. It is not uncommon for witnesses to differ on
whether an oral agreement was reached. Such disagreements
which, as here, may include strong testimonial assertions and
denials that an oral offer was made and an oral acceptance ex-
pressed. It would normally be palpably absurd to conclude in
such a context that an offer was made, but not heard, or an ap-
parent acceptance of the offer was spoken, but was not in fact a
response to or acceptance of the offer. Conduct in the give and
take of negotiations is rarely so ambiguous that a mistake of
this type is reasonably comprehended. Yet in the instant case
the context of events includes the confusion at the meeting’s
end as described above and, critically, deals with the most am-
biguous of exchanges: a spoken offer made as a meeting ended
and a nonverbal acceptance apparently manifested exclusively
in a downward look and a nod of the head. Such a setting vir-
tually invites mistake and misunderstanding. I find that such a
misunderstanding in fact occurred.
b. Legal implications of bargaining conduct
The Respondent argues that during 1994 bargaining both
general and later specific agreements had been reached with the
Unions to keep all the old agreements in place until the next
bargaining sessions and that the Teamsters and the Operating
Engineers struck on July 15 before their next scheduled bar-
gaining sessions in breech of their agreements. Since the ex-
tended agreements contained no-strike language, argues the
Respondent, the employees who struck were in clear violation
of the agreements and could therefore properly be discharged
for their conduct citing Mastro Plastics Corp. v. NLRB, 350
U.S. 270, 280 (1956), and Fort Smith Chair Co., 143 NLRB
514 (1963) affd. sub nom. Furniture Workers v. NLRB, 336
F.2d 738 (D.C. Cir. 1964), cert. denied 379 U.S. 838 (1964).
The General Counsel and the Charging Parties make a series
of arguments challenging the Respondent’s assertion. They
contend that no agreement was reached to extend the contracts,
if their argued view of the facts be credited or, in all events, that
no agreements were reached as a result of mutual mistake of the
parties. They argue further that, if an agreement was reached, it
was ineffective as a matter of law to waive employees’ protec-
tions against discharge under the Act and was, in all events,
timely ended through the Unions’ July 13 communications to
the Respondent. These arguments are worthy of individual
consideration and will be discussed below in the context of the
specific agreements reached.
(1) Was an earlier general ongoing agreement to extend the
contracts in effect at the time of the strike?
Rolleri and Haworth contended that a general agreement was
entered into between the Unions and the Respondent as the
contracts’ May 31 expiration approached to extend the con-
tracts automatically from meeting to meeting. The Union’s
bargaining representatives, as noted above, disputed this testi-
mony. I did not resolve this apparent testimonial conflict above
and do not do so here. That is so because there is no doubt that
the later bargaining sessions dealt regularly, if not without ex-
ception, with the issue of extension of the agreement from a
given bargaining session to the next. Any general agreement
that may have been in place in late May or early June was
ended by or dissolved into the practice of meeting by meeting
arrangements which evolved as the bargaining progressed.
There can be no doubt, and I find, that by the critical meetings
on July 6 and 11, no ongoing automatic extension process was
operative on this record to extend the contracts without specific
meeting by meeting agreements to do so. Thus, on this record I
find that the Unions could only be held to have extended the
agreements as a result of a specific agreement to extend the
contracts made at those critical final pre-strike meetings.
(2) Were agreements reached to extend the contracts on July 6
and/or July 11?
As set forth in detail above, I have found that the Respondent
proposed an extension of the old agreement18 to the Teamsters
at the July 6 meeting and further found that Jones, an admitted
agent of the Charging Party Teamsters,19 agreed unequivo-
cally—even if mistakenly—to extend the old agreement until
the next bargaining session then set for July 25. I have also
found that the Charging Party Operating Engineers did not
agree at the July 11 session to extend the agreement beyond
that session to the next scheduled session, even if Respondent’s
agents believed that such agreement has been reached.
(3) Was any extension agreement reached insufficient to re-
strict the right of employees to strike?
The General Counsel citing current authority notes that a Un-
ion’s relinquishment of a statutory right, such as the right to
strike, must be clear and unequivocal. The counsel for the
General Counsel argues on brief at 45–46:

There were simply no discussions between Respondent and
the Unions about what effect the contract extension would
have on the no-strike clause that was a part of the expired con-
tract. Since there were no discussions between the parties re-
garding the no-strike clause and the effect of any extension
would have on such a statutory right, no mutual assent ever
manifested itself between the parties which would be neces-
sary to form the basis for an agreement. The record is clear
that the Unions did not relinquish their right to strike in a clear
and unmistakable manner.

The General Counsel cites the Board’s decision in Kroger Co.,
177 NLRB 769 (1969), for the proposition that consideration of
a quid pro quo of retroactivitiy must be agreed on by an em-
ployer with a union in order to find a waiver of the right to
strike in a contract extension context.
I agree with the General Counsel that a contractual waiver of
the right to strike is not lightly to be inferred. I find further
however that the General Counsel has misread the holding of
Kroger Co. and incorrectly drawn from it an improper general-
ized statement of law where its holding was limited to the facts
on which it relied. Thus, Kroger Co. did not hold that the no-

18 Each of the Charging Party Union’s had two agreements with the
Respondent in the period preceding the 1994 negotiations. There
seems to have been no specific discussion nor notice given to that fact
when the parties were discussing contract extensions. While some
argument was made that only an extension of the construction agree-
ments was ever discussed, I find that all parties will be held to the fair
meaning of their agreements in light of their conduct. The Respondent
carried forward the terms of all contracts and the Union’s knew this
during the prestrike negotiations. Wherever agreement herein is found
to have been reached between a Union and the Respondent to extend
the contract, I find the agreement applied to both the construction and
rock, sand and gravel contracts without distinction.
19 While it is clear that Jones did not have actual as opposed to ap-
parent authority to enter into this agreement with the Respondent on
behalf of the Teamsters, his apparent authority to bargain is sufficient
in such a context to bind his principal. Anaconda Co. 224 NLRB 1041,
1052 (1976), enfd. mem. 578 F.2d 1385 (9th Cir. 1978).
GRANITE CONSTRUCTION CO. 221
strike provisions of an extended contract were ineffective to
restrict Union or employee conduct without a specific employer
quid pro quo agreement to retroactive application of an even-
tual new agreement. The Board in Kroger Co. simply analyzed
the collective-bargaining agreement agreed on by the employer
and the union to determine its meaning and applicability. In-
deed, the majority specifically rejected the dissenter’s view that
the right to strike should not be held waived by a labor union’s
agreement to extend the terms of a facially expired contract
which includes a no-strike clause.20
Turning to the agreement between the Teamsters and the Re-
spondent on July 6, the descriptive terms used, as found supra,
created an agreement to extend the terms of the old agreement
to the next bargaining meeting. No discussion, under any view
of the events, occurred respecting what elements of the old
agreement would be carried forward. Given this fact I find that
the entire agreement was extended including those elements
favorable to the Union and the employees and those favorable
to the Respondent with each being the quid pro quo for the
other.21 Thus I find the contractual restrictions on Union and
employee strike activity also extended with the other terms of
the agreements as found, supra.
(4) Was any extension agreement reached invalid as a result of
mistake?
The General Counsel and the Charging Parties argue at
length with copious case citation for the proposition that any
apparent agreement reached should be declared void or ineffec-
tive because of mistake or failure of mutual assent. Thus, the
General Counsel argues that the Unions did not understand that
an agreement to extend the contract would relinquish their right
to strike for the period of extension and therefore there was no
“meeting of the minds” and no “firm agreement” among the
parties.
Counsel for the Charging Party Teamsters provides a schol-
arly survey of the law of “meeting of the minds.” He argues
correctly that, if the disputed events defining the contested
agreement reached between the Respondent and the Teamsters
cannot be resolved, no agreement at all may be held to have

20 In earlier times it was generally the case that a new contract con-
tained terms more favorable to the employees and the Union and retro-
activity was generally a valuable concession from their point of view.
For better or ill this is no longer consistently the case and retroactivity
is no longer consistently a matter of value or importance to the Union.
More importantly, the extension of the expiring or expired agreement
provides continuity of operations for the employer, continued employ-
ment for the employees represented by the union and infuses the on
going bargaining with a spirit of co-operation which is often of benefit
to both sides. This continuity of operations and employment is in my
mind easily sufficient consideration for both the union and the em-
ployer to bind themselves to keep the contract in place for some agreed-
on period.
21 The Charging Party Operating Engineers on brief at 48 asserts:
It is black letter law that, where a contract does not have a
specific expiration date, a union is free to take strike action
after timely Section 8(d) notice has been given. NLRB v.
Lion Oil Co., 352 U.S. 282 (1957), Difco Laboratories, 216
NLRB 76 (1975).
Counsel for the Charging Party Teamsters makes a similar argument
at p. 43 of his brief citing McLean County Roofing, 290 NLRB 685
(1988). The arguments of counsel do not address the situation here
where the contended agreement was to a date certain—the date of the
next scheduled bargaining session of the particular contracting parties
involved.
occurred. I have however discredited Jones’ version of events
on July 6 as mistaken and credited the version of the Respon-
dent’s agents, Haworth and Rolleri. Thus, I found there is no
doubt as to what was said in the meeting, only that Jones and
Wilson were mistaken in believing that the extension agree-
ments entered into were to extend the contract from day to day
rather than from meeting to meeting.
While the June 6 agreement was from Jones’ and Wilson’s
perspective based on their mistaken belief as to what was
agreed to, there is neither doubt as to what was in fact said in
the meetings nor ambiguity respecting the fair meaning and
consequences of the terms actually spoken or the type of exten-
sion agreement reached.22 Thus, the mistake involved here is
not the mutual mistake traditionally preventing an agreement
from being consummated. Rather the instant case presents the
situation wherein one party makes a mistake not attributable to
the conduct of the other. Jones, albeit mistakenly, expressly
agreed to an unambiguous extension of the contract to July 25,
1994. Such a unilateral mistake does not make a transaction
voidable in contract law. See, e.g., Reinstatement, Contracts,
§503, (Comment a). Accordingly, I find no defense of mistake
is available to the Charging Party Teamsters on this record.
c. Conclusions regarding the validity of the discharges
(1) The employees represented by the Operating En-
gineers
The parties stipulated to the names of 73 employees repre-
sented by the Operating Engineers who were discharged by the
Respondent on July 15. The employees were discharged by the
Respondent because they engaged in a strike commencing on
July 14 in violation of the no-strike provisions of the contract
the Respondent believed had been extended to July 19 by spe-
cific agreement of the Operating Engineers and the Respondent
at their July 11 bargaining session.
I have found above that no such agreement to extend the old
contract beyond the July 11 session occurred. While the Re-
spondent had a good faith belief that an agreement to extend the
contract had been assented to by Teel, it had not. The agree-
ments between the Respondent and the Operating Engineers
therefore expired on July 11 and there was no collective-
bargaining agreement in place on July 14 and thereafter and,
therefore, there was no contractual restriction of the Operating
Engineers or their represented employees’ right to strike. Since
Respondent fired the employees for striking and because there
is no dispute that the employees’ concerted withholding of their
labor in support of the Operating Engineers’ contract demands
is protected in the absence of contractual restriction, the Re-
spondent in so doing violated Section 8(a)(3) and (1) of the Act
as alleged in the complaint. I so find.
The Respondent had a good faith, but mistaken belief that
the employees strike was unprotected by virtue of the extension
of the old contracts and the no-strike provisions in those con-
tracts. The Supreme Court has specifically held that a good
faith, but mistaken, belief by an employer that employees are
engaging in misconduct during the course of otherwise pro-
22 Jones testified that he well understood what an extension of an
old contract from bargaining session to bargaining session meant.
Further, I find that the various types of contract extensions referred to
in the testimony of the bargaining professionals in this case were uni-
formly understood by all parties to have differing and specific contract
extension consequences.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
tected concerted activities does not constitute a defense to the
discharge of such employees. Burnup & Sims, Inc., 379 U.S.
21 (1964). The Respondent’s mistake therefore does not con-
stitute a defense to the violations found.
(2) The employees represented by the Teamsters
The parties stipulated to the names of 40 employees repre-
sented by the Teamsters who were discharged by the Respon-
dent on July 15. The employees were discharged by the Re-
spondent because they engaged in a strike in violation of the
no-strike provisions of the contract The Respondent and the
Teamsters had extended the terms of their existing agreements
to July 25 at their July 6 bargaining session. The provisions of
those contracts therefore limited employees rights to strike.
The employees did in fact strike. Because their strike was pro-
hibited by the terms of the extended agreements, the employ-
ees actions in support of the strike were unprotected and the
Respondent could discharge them for that reason. Mastro Plas-
tics Corp. v. NLRB, 350 U.S. 270, 280 (1956).23
The General Counsel and the Charging Parties contend that
the Respondent did not in fact fire the employees for this rea-
son, but rather did so because of a desire to rid itself of union
representation of its employees. The Respondent denies this
factual contention, but further argues the issue is immaterial
because the employees through their misconduct lost the pro-
tection of the Act and could be discharged by the Respondent
with impunity citing Fort Smith Chair Co., 143 NLRB 514
(1963), affd. sub nom. United Furniture Workers v. NLRB, 336
F.2d 738 (D.C. Cir. 1964), cert. denied 379 U.S. 838 (1964).
The Respondent confuses those situations in which employ-
ees are held to have violated the strictures of Section 8(d) of the
Act which by its terms24 defines such persons as losing em-
ployee status, a situation presented in Fort Smith Chair, and
those situations where the employees’ strike conduct is unpro-
tected but, because the conduct is not in contravention of Sec-
tion 8(d) of the Act, does not by operation of law eliminate
their employee status. The distinction is explained by Board
Member Jenkins in his dissent in Arundel Corp., 210 NLRB
525 (1974) at 527. The Respondent could not as a matter of
law terminate these strikers for impermissible reasons and the
argument of the General Counsel and the Charging Parties that
the asserted reasons for discharge were mere pretext must
therefore be addressed.
I reject the General Counsel and the Charging Parties’ pre-
text argument based on my determination described at length
earlier that the Respondent’s agent Haworth was an honest
witness and that the Respondent was not during these events
embarked on a plan or conspiracy to defeat the Unions through
pretext and subterfuge. I specifically extend that analysis and
conclusion to the General Counsel’s claims respecting the rea-
son for the discharge of the striking employees. Thus, I find
that the Teamsters’-represented employees were in fact termi-
nated by the Respondent because they were striking and not for
other reasons prohibited under the Act.

23 A more detailed discussion and analysis of the wording of the con-
tracts and the case law governing contractual restriction of the right of
employees and unions to strike is set forth, infra, in the discussion of
the contracts’ application to the Laborers’ represented employees at
Legal Rights of Strikers under Relevant Agreements, p. 30.
24 Sec. 8(d) of the Act asserts in part: “Any employee who engages
in a strike [in violations of this Sec.] shall lose his status as an em-
ployee . . . .”
I have found, supra, that the Teamsters’ agreement to the
June 6 contract extension resulted from the unilateral mistake
of the Teamsters’ agents during bargaining regarding the exis-
tence and type of contract extensions being proposed by the
Respondent and agreed to by the Teamsters. I have also found
the Teamsters’ agents who determined to strike on July 13 were
unaware of the fact that an agreement to extend the contract had
occurred which extended the contracts’ terms beyond July 15
and which could not be terminated by their communication to
the Respondent of July 13. Such a good-faith mistake, like that
of the Respondent as found above respecting the disputed ex-
tension agreement with the Operating Engineers, does not en-
hance the rights of the Teamsters’ Union nor its represented
employees to strike nor diminish the rights of the Respondent
to take the action that it did in response to the strike.
Given all the above, the Respondent had the right to dis-
charge the Teamsters’-represented employees for engaging in a
strike on July 14 and 15 in violation of the extended contracts’
no-strike provisions. I have found that the Respondent fired
the Teamsters’-represented employees on July 15 for that rea-
son. The Respondent’s actions therefore did not violate the Act
and I shall dismiss the portions of the complaint alleging a vio-
lation of the Act with respect thereto.
2. The discharge of Laborers’-represented employees
The Respondent, both in argument at the trial and on brief
argues the following logical sequence. First, the Laborers’-
represented employees terminated on July 15, before the com-
mencement of the Laborers’ July 18 strike, were terminated at a
time when the Laborers’ were prohibited from conducting an
economic strike and no unfair labor practices had been commit-
ted by the Respondent. Second, because no Laborers’-
represented employees were improperly discharged by the time
of the early morning July 18 commencement of the Laborers’
strike, the Laborers’ strike could not have been an unfair labor
practice strike. Third, the Respondent argues, if the Laborers’
strike was not an unfair labor practice strike, it was prohibited
by the terms of the extended 1991 Laborer agreements and was
an illegal strike. Fourth, and finally, the Respondent argues
that since the Laborers’ strike was illegal and unprotected, the
Laborers’-represented employees who honored the Laborers’
improper strike were themselves engaged in unprotected activ-
ity for which they could be, and were, properly discharged.
Thus, concludes the Respondent’s argument, its discharges of
Laborers’-represented employees were not in violation of the
Act. The General Counsel and the Charging Parties dispute
each step in the Respondent’s argument.
The findings, supra, that the Operating Engineers’ strike was
economic until July 15, at which time the termination of the
Operating Engineers’-represented employees honoring the
strike converted the strike to an unfair labor practice strike, add
an element of complexity to the evaluation of the merits of the
allegations respecting the discharged Laborers’-represented
employees not fully anticipated or argued by the parties in all
its possibilities. It seems best given these circumstances to
consider the Laborers’-represented employees’ situation on a
step by step basis.
a. Basic statement of events
There is no dispute that the contracts between the Respon-
dent and the Laborers were extended at least until July 26.
There is no dispute that the Laborers did not engage in a strike
against the Respondent until Monday, July 18, at which time
GRANITE CONSTRUCTION CO. 223
the Laborers picketed the Respondent with placards proclaim-
ing an unfair labor practice strike. While there was some ar-
guably conflicting testimony respecting whether or not the
Laborers’-represented employees could have physically have
entered the Respondent’s worksites on July 14 and 15 and
thereafter, i.e., whether the employees were locked-out rather
than on strike, I find that the employees were in fact able to go
to work25 and that during the period of the strike—commencing
at various days during the period July 14 through the end of the
following week—various Laborers’ represented employees
withheld their labor from the Respondent. Finally, there is no
dispute that on various dates from July 15 through July 25 La-
borers’-represented employees who were not coming to work
were discharged by the Respondent for that reason.
b. Analysis
(1) Legal rights of strikers under relevant agreements
The analysis of the situations respecting the Operating Engi-
neers’ and Teamsters’-represented employees will not be re-
peated here. Employees who engage in economic strikes
against their employer are engaged in protected conduct for
which they may not be discharged. Employees who have lost
their right to engage in an economic strike through the terms of
a collective bargaining agreement lose the protection of the Act
if they engage in such activities and may be terminated by their
employer for such conduct.
At the onset of the analysis of the situation pertaining to the
Laborers’-represented employees, it is appropriate to note that
employees who withhold their labor in support of others, i.e.,
sympathy strikers, are engaged in protected concerted conduct.
Teamsters Local 79 v. NLRB (Redwing Carriers), 325 F.2d
1011 (D.C. Cir. 1963). Employees who support a strike by
another unit of employees at their own workplace are akin to
economic strikers. Newberry Energy Corp., 227 NLRB 436
(1976). Thus, an employer may not terminate such strikers
because they engage in such activity.
The right to engage in a sympathy strike may also be waived
by contract however. NLRB v. Rockaway News Supply Co.,
345 U.S. 71 (1953). The Board in Indianapolis Power Co., 291
NLRB 1039 (1988), established the current standard for deter-
mining if the right to engage in sympathetic strikes has been
waived by contract language. Broad no-strike language in a
contract is held to include sympathy strikes absent contrary
evidence and circumstances not relevant to the instant case.
The applicable 1991 Arizona rock, sand, and gravel agree-
ment between the Laborers and the Respondent specifically
includes language waiving covered employees’ rights to engage
in “sympathy, or any other kind of strike” or the refusal to cross
a picket line. The applicable 1991 construction agreement
between the Laborers and the Respondent includes language
binding the Union and represented employees not to “sanction,
aid or abet, encourage or continue any work stoppage, strike,
picketing or other disruptive activity.” There is no evidence in
the record to suggest that the parties did not intend to include
sympathy strikes within the prohibition strike activity of the
1991 construction agreement. Sympathy striking or the honor-

25 There were some occasions when laborer-represented employees
attempted to go to work and were told that no work was available that
day due to the strike. There is no suggestion however that any em-
ployee in such a circumstance was discharged by the Respondent for
failing to work on such a day.
ing of strikes and or picket lines of other employees of Respon-
dent was therefore not permissible for Laborers’-represented
employees during the currency of the 1991 collective-
bargaining agreement.
An exception to the contractual waiver and striker’s rights
cases noted above deals with the special circumstance of an
unfair labor practice strike. General no-strike clauses in collec-
tive-bargaining agreements have been held not to waive the
right of employees to engage in strikes in protest of serious
unfair labor practices. Mastro Plastics Corp. v. NLRB, 350
U.S. 270 (1956). There is no question and I find that the rele-
vant Laborers’ contracts with the Respondent did not act to
restrict represented employees’ right to engage in unfair labor
practice strikes.
The Board holds that a sympathy striker who acts in support
of unfair labor practice strikers assumes their status. Hoffman
Beverage Co., 163 NLRB 981 (1967). The Board further holds
that a contractual waiver of sympathy striker rights does not
limit the right to support strikes protesting serious unfair labor
practices. Pilot Freight Carriers, 224 NLRB 341 (1976).
Thus, if the Laborers’-represented employees sympathetically
protested the serious unfair labor practices of the Respondent
respecting other units by engaging in an unfair labor practice
strike or honoring the unfair labor practice strike of other bar-
gaining units, that action would not be prohibited under the
1991 agreements and, consistent with the analysis, supra,
would be concerted protected activity.
Given the differing rights that employees striking or honor-
ing the strikes of others have depending on the nature of the
strike involved and other relevant circumstances, it is appropri-
ate to turn to the events of July 14 and following.
(2) The status of the strikes and strikers at relevant times26
(a) The Operating Engineers’ strike
On July 14 the Operating Engineers struck the Respondent. I
have found the Operating Engineers’ strike at its inception to be
an economic strike. I further found the Respondent’s July 15
discharge of all its striking Operating Engineers’-represented
employees to be an unfair labor practice. While not relevant to
the determination of the propriety of the discharge of the Oper-
ating Engineers’-represented employees undertaken above,27
the status of the Operating Engineers’ strike after the termina-
tions became known to the fired employees and the Union on
July 15 is relevant to the situation of the Laborers’-represented
employees.
The record is clear that on July 15 the Respondent improp-
erly terminated some 70 plus Operating Engineers’-represented
employees, i.e., every Operating Engineers-represented em-
ployee who struck which also was virtually every individual in
26 On July 14 the Teamsters struck the Respondent. I found the
Teamsters’ strike to be in breech of no-strike language in the extended
contracts and unprotected. I found therefore that the Respondent’s July
15 discharge of Teamsters’-represented employees who engaged in the
prohibited strike was not an unfair labor practice. The Teamsters’
strike is therefore not in issue respecting or material to the Laborers’-
represented employees. See further discussion, infra.
27 Inasmuch as the remedy provided the discharged economic strik-
ers represented by the Operating Engineers, as set forth in the remedy
section of this decision, infra, is not based on or affected by the status
of their strike after their discharges, it was unnecessary to establish the
strikes’ status in resolving the Operating Engineers’-represented em-
ployees discharge allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
the Operating Engineers’ bargaining units. These terminations
were a serious unfair labor practice. The Operating Engineers
continued the strike after the discharges changing their picket
signs to include references to an unfair labor practice strike.
Strikes are converted from economic to unfair labor practice
strikes, if it is shown that the unfair labor practices are a factor
in causing or prolonging the strike. Frank Invald v. NLRB, 48
F.3d 444 (9th Cir. 1995). The unlawful conduct need not nec-
essarily be the sole or predominant cause and both subjective
and objective factors may establish such facts. Gaywood Mfg.
Co., 299 NLRB 697 (1990). Further the Board holds that cer-
tain types of unfair labor practices by their very nature will
have a reasonable tendency to prolong the strike and therefore
provide an independent, per se, basis for finding a conversion
from economic to unfair labor practice strike. F. L. Thorpe &
Co., 315 NLRB 147, 149 (1994); C-Line Express, 292 NLRB
638 (1989).
The Board has long held that the termination of strikers is
such an independent factor. In Vulcan-Hart Corp., 262 NLRB
167 (1982), the Board addressed an employer’s October 30
wrongful discharge of 19 strikers—approximately one half of
the unit involved:

Such conduct, a blow to the very heart of the collective bar-
gaining process, leads inexorably to the prolongation of the
dispute. In these circumstances we find that the employees
involved in the walkout became unfair labor practice strikers
on and after October 30. . . . [262 NLRB at 167.]

The Board has held to that view. Nobit Bros., 305 NLRB 329
(1992); Fun Connection & Juice Time, 302 NLRB 740, 740 fn.
1 (1991); GSM, Inc., 284 NLRB 174 (1987).
Further there is no need for the employees or the Unions to
first realize that the discharges were illegal as a precondition
that the strike be converted from an economic to an unfair labor
practice strike. The Board in Pittsburgh & New England
Trucking, 238 NLRB 1706 (1978), specifically reversed an
administrative law judge who held that, since neither the union
nor the employees realized the unlawful nature of the em-
ployer’s actions, the unfair labor practices involved could not
convert the economic strike to an unfair labor practice strike.
The Board held that the conduct at issue therein was inherently
destructive of employees Section 7 rights and specifically re-
jected the proposition that “the failure of the employees to per-
ceive fully the unlawfulness of the [unfair labor practice in-
volved] can relieve Respondent of the responsibility for its
actions.” (238 NLRB at 1707.)
It follows, therefore, and I find the strike of the Operating
Engineers was converted from an economic to an unfair labor
practice strike on July 15 when the fact of the terminations of
the striking employees represented by the Operating Engineers
became known. At that time those employees of the Respon-
dent supporting the strike28 including the sympathy strikers
became unfair labor practice strikers.

28 Support in this sense extends to even uninformed passive honoring
of the picket line. Thus, in White Oak Coal Co., 295 NLRB 567
(1989), the Board found that an employee who had been hired, but had
not yet had occasion to start work and who honored the strike only to
“avoid trouble” and did not join in the picketing had made common
cause with the strikers and took on their unfair labor practice striker
status.
(b) The status of the Laborers’-represented employees who
honored the Operating Engineers’ strike before the Laborers’
strike on July 18
Because of the close proximity of the change in the status of
the Operating Engineers’ strike and the termination of the first
group of the Laborers’-represented employees who honored the
strike, it is important to examine carefully the sequence of
events respecting these individuals and their status at particular
times. The Operating Engineers were terminated on July 15.
The fact of their terminations was conveyed to at least a signifi-
cant number of them when they picked up their paychecks at
about 3:30 p.m. outside the Respondent’s main facility in Tuc-
son.
It was relatively easy for the Respondent to identify and dis-
charge the Teamsters and Operating Engineers’-represented
employees who were honoring their Union’s picket line. The
situation respecting the Laborers’ units was ambiguous how-
ever. The Laborers had not declared a strike nor set up a picket
line and their represented employees did not respond to the
strike in a uniform or consistent manner. Thus, Haworth testi-
fied that even into the early afternoon of July 15, he had been
informed that the Laborers’ Union was not on strike. Further,
some Laborers’-represented employees had reported to work
and were working, others had reported to jobsites and been
sent home for lack of work due to the strike of others. Yet
others were clear in their support for the strike and picket lines.
Haworth initially testified that few Laborers’-represented em-
ployees were terminated on July 15 because it was simply diffi-
cult to be sure that given individuals were on strike. None the
less, by the close of that business day, Haworth testified the
Respondent came to believe that some Laborers’ employees
had joined the strike and, as noted above, 14 Laborers’-
represented employees were terminated for participating in an
illegal strike that day.
Before the discharge of the Operating Engineers’-
represented employees on July 15, their strike against the Re-
spondent was economic. Since the Laborers’-represented em-
ployees who were discharged on July 15 received their termina-
tions simultaneously with the Operating Engineers who were
also terminated that day, the wrongful discharge of those Op-
erating Engineer employees did not precede and therefore could
not shape or effect the nature of the strike activities of the La-
borers’-represented employees who were also fired that day.
Thus, the unfair labor practice of discharging the Operating
Engineers’ represented employees and the fact that the Operat-
ing Engineers strike was by the Respondent’s announcement of
those wrongful terminations converted to an unfair labor prac-
tice strike came too late in the day to give the Laborers’-
represented employees fired on July 15 sympathy unfair labor
practice striker status at the time of their discharge.
As found above, the Laborers’ contract was admittedly in ef-
fect on July 14 and 15 and contained no-strike language validly
prohibiting sympathy strikes. The Laborers’-represented em-
ployees who honored the Operating Engineers’ strike before it
was converted into an unfair labor practice strike were therefore
engaged in prohibited sympathetic activities. The Respondent
could terminate the employees for that reason under the con-
tract. I find it did so and therefore the Respondent’s discharge
of the Laborers’-represented employees on July 15 did not vio-
late the Act. I shall therefore dismiss the complaint allegations
with respect to these 14 individuals.
GRANITE CONSTRUCTION CO. 225
(c) The status of the Laborers’ July 18 strike
Consistent with the analysis of the Teamsters’ and Operating
Engineers’ July 14 strikes, the Laborers’ strike, which admit-
tedly took place during the life of the Laborers’ contracts with
their effective prohibition of economic and sympathy strikes,
was either a protected unfair labor practice strike or a strike in
violation of the contracts and hence unprotected. If the Labor-
ers’ strike was an unfair labor practice strike, both the occur-
rence of unfair labor practices and a legally sufficient nexus
between the unfair labor practices and the strike must be dem-
onstrated.
As found above, the Teamsters’ strike and picket line were
unprotected activities and the discharge of the Teamsters’-
represented employees by the Respondent was not an unfair
labor practice. Further, the discharges of Laborers-represented
employees occurring before the initiation of the Laborers’
strike, i.e., the discharges of Laborers’-represented employees
by the Respondent on July 15, have been found above not to
have been in violation of the Act. Therefore the fact that the
Laborers may have initiated their strike to some degree in pro-
test of any or all of these actions may not be a basis for finding
that the Laborers’ strike was an unfair labor practice strike.
These events and actions eliminate as potential unfair labor
practices all allegations in the complaint29 except the circum-
stances respecting the Operating Engineers and their repre-
sented employees.
As found, supra, the Respondent’s discharge of the Operat-
ing Engineers’-represented employees on July 15 constituted
serious unfair labor practices and converted the Operating En-
gineers strike to an unfair labor practice strike at the end of the
working day on July 15. The General Counsel and the Charging
Parties argue the Laborers’ strike, which commenced on the
morning of Monday, July 18, was initiated as and remained at
all relevant times an unfair labor practice strike. It is therefore
appropriate to consider whether or not the Laborers’ strike may
on this record be held to be an unfair labor practice strike be-
cause of the wrongful discharge of the Operating Engineers’-
represented employees. To a degree resolution of this issue
repeats portions of my earlier analysis.
For a strike to be an unfair labor practice strike, there needs
be a relationship between the unfair labor practices of the Re-
spondent and the strike. Those unfair labor practices need not
necessarily be the sole or predominant cause of the strike and
both subjective and objective factors may establish such facts.
Gaywood Mfg. Co., 299 NLRB 697 (1990). The Board with
court approval holds that in evaluating whether or not a strike
occurred because of unfair labor practices the dispositive ques-
tion is whether or not they it was motivated in part by the em-
ployer’s improper conduct, not whether or not the strike would
have taken place without the occurrence of the unfair labor

29 Complaint subpars. 17(a) and (b) allege conduct occurring on July
14. Each subparagraph alleges that the Respondent threatened employ-
ees with discharge unless they crossed the picket lines of the Teamsters
and/ Operating Engineers. Assuming the facts support the allegations,
it would not have been a violation of the Act to so threaten Laborers’ or
Teamsters’-represented employees at that time given the applicability
of the contracts to those employees and the absence of any prior unfair
labor practices. While such conduct would violate the rights of Operat-
ing Engineers’-represented employees who were engaged in an eco-
nomic strike on July 14, on this record such conduct would not have
been sufficient to give the Laborers’ strike unfair labor practice strike
status.
practices. Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th
Cir. 1989).
The Laborers’ strike commenced early in the morning on
Monday, July 18 and was characterized by the Laborers’ picket
signs as an unfair labor practice strike and against conduct “in
violation of federal law.” Rene Torres testified that he and
Ermilo Torres and Anthony Martinez determined to commence
the strike. Neither Ermilo Torres nor Anthony Martinez testi-
fied about their or other Laborers’ agents motivation for calling
the strike. Rene Torres testified initially that the strike was
called because the Respondent had “fired all the employees on
the 15th.” He later made it clear however that his reference to
“all employees” was to those employees represented by Labor-
ers who were fired on July 15 by the Respondent.
Guillermo Lopez, a longtime member of the Laborers’ Union
and Laborers-represented employee, testified that he had not
gone on strike on July 14 or 15. On the first day of the Labor-
ers’ strike, July 18, he arrived very early at work, waited out-
side and, when fellow Laborers arrived to establish a Laborers’
Union picket line, he inquired of them what was happening. He
was told by the picketers, apparent agents of the Laborers,’
“we’re going to have to join the other guys with the strike”
whereupon he joined the strike and picketing.
Were the record evidence respecting the Laborers’ subjective
motivations for calling the strike and their characterization of
their strike as an “unfair labor practice strike,” the sole evi-
dence connecting the unfair labor practices of July 15 and the
Laborers’ strike of July 18, it would be a close question re-
specting the sufficiency of the evidence to establish the requi-
site nexus. What must also be considered in the evaluation,
however, is the relationship between the Laborers and Operat-
ing Engineers’ Unions and their represented employees both in
bargaining and in the workplace.
Based both on the record evidence of the heavy highway
construction and rock, sand, and gravel aspects of the Respon-
dent’s operations and by noticing administratively the relation-
ship between and among the craft unions within the construc-
tion industry, I find that the represented employees of the craft
unions employed by the Respondent from 1980 until the strikes
of July 1994 worked at common job sites and on common
work. The record suggests that respecting the Respondent’s
operations during that period, the crafts took a common ap-
proach in labor relations reflected in similar contract language
and apparently parallel history of contract intervals and bar-
gaining.
In 1994 until the strikes in controversy, the Unions, includ-
ing the Laborers and the Operating Engineers, frequently bar-
gained with the Respondent at common sessions with the Oper-
ating Engineers’ agent Dennis Teel as lead negotiator for all the
crafts, bargained at sessions that followed hard on one an-
other’s sessions or involved representatives of one or another
craft attending the bargaining sessions of the others. Even
where there were evident differences in the perceptions of bar-
gaining progress between the Unions, they endeavored to keep
a common front. Thus, as the Carpenters prepared to leave the
negotiations on July 11, having deferred their bargaining to
await further progress with respect to the Operating Engineers
bargaining, Teel told the Respondent’s agents Haworth and
Rolleri: “I want to let it be known that all the crafts are still
together” and the Carpenters’ representative agreed.
Given this evident collaborative bargaining, the lead role of
the Operating Engineers’ agent Teel during bargaining and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
craft history of close working circumstances and general mu-
tual aid and support,30 I find there is substantial objective evi-
dence that the Laborers’ in calling the strike of July 18 and the
Laborers’-represented employees who honored that strike did
so in part because Respondent fired all striking Operating En-
gineers on July 15.31 As noted in Vulcan-Hart Corp., 262
NLRB 167 (1982), the discharge of strikers is “a blow to the
very heart of the collective bargaining process” and “leads in-
exorably to the prolongation of the dispute.” As found supra,
these were serious unfair labor practices.
In light of the noted interrelationship of the bargaining of the
Operating Engineers and the Laborers, and in consideration of
the other evidence noted and the record as a whole, I have no
doubt and specifically find that the discharge of the 73 Operat-
ing Engineers’-represented employees at the same time the
Laborers’-represented employees who had honored their line
were discharged, was a factor within the meaning of the Board
and court cases cited in the Laborers initiating their strike on
July 18 and the Laborers’-represented employees in honoring
that strike thereafter.
Based on the above, I further find that the Laborers’ strike
against the Respondent commencing on July 18, 1994, was an
unfair labor practice strike from its inception and those Labor-
ers’ represented employees who honored the strike and picket
line were unfair labor practice strikers. The contract limits on
economic and sympathy strikes or honoring of picket lines
contained in the Laborers’ extended agreements with the Re-
spondent had no legal application to the Laborers’ strike or the
Laborers’ represented employees’ honoring of such an strike in
protest of Respondent’s serious unfair labor practices.
(d) The terminations of the Laborer represented employees
who were discharged on and after July 18, 199432
The Respondent admittedly fired on July 15 all Laborers’-
represented employees it had confidence were honoring the
strikes then occurring. On and after July 18, an additional 10
Laborers’-represented employees were discharged for partici-
pating in an illegal strike. I find that this sequence is convincing
evidence to support a finding, which I make here, that the La-
borers’ represented employees fired on and after July 18 were
terminated because of their actions in honoring the strikes and
picket lines in place on and after July 16 and were not termi-
nated solely for any actions they took or did not take on July 14
or 15.
I have found, supra, that the Laborers strike from its incep-
tion was an unfair labor practice strike and that once the Labor-
ers’ unfair labor practice strike and picket line commenced on
the morning of July 18, all Laborers’-represented employees
who honored the strike were unfair labor practice strikers and
protected from discharge for that reason.

30 As the Respondent notes in discussing the likelihood that the La-
borers’-represented employees would support the strikes of the Team-
sters and Operating Engineers on brief at 64 refers to “the foreseeable
sympathy that some [Laborers’] members might feel with their operator
and teamster co-workers.”
31 While the same assertion to a slightly lesser degree in light of the
Operating Engineers’ leading role in negotiations could be made re-
specting the Laborers’ strike and the discharge of the striking Team-
sters’ represented employees, that fact neither adds to nor detracts from
the analysis set forth above.
32 No employees were discharged on Saturday, July 16, or Sunday,
July 17.
Having found that the Respondent fired 10 Laborers’-
represented employees on and after July 18 for engaging in an
unfair labor practice strike, as more fully explained in my
analysis of the discharge of the employees represented by the
Operating Engineers on July 15, above, the Respondent’s ter-
mination of these Laborers’-represented employees was im-
proper and a violation of Section 8(a)(3) and (1) of the Act. I
therefore sustain the General Counsel’s allegations in this re-
gard.
A second issue arises respecting the Laborers’-represented
employees terminated on and after July 18 for striking. Were
these employees also honoring the strike of the Operating En-
gineers during this period? By early the following Monday
morning, July 18, two major changes in the strikes against the
Respondent had occurred. First, that morning the Laborers
initiated what they characterized as an unfair labor practice
strike and picketed the Respondent’s premises with signs bear-
ing their union name and the legend “unfair labor practice
strike.” Second, as noted, supra, the Operating Engineers’ strike
was converted to an unfair labor practice strike and the Operat-
ing Engineers had changed their picket placards to assert that
the strike was an unfair labor practice strike. This picketing by
each union continued during relevant times.
It is clear and I have found that many Laborers’-represented
employees honored the Operating Engineers’ picket line on
July 14 and 15. As noted above, the Respondent contends and I
found that this was the case as to the Laborers’-represented
employees discharged by the Respondent on July 15. Other
Laborers’-represented employees33 also ceased work on July
13, the day before the strikes began, and did not work thereaf-
ter, but were not discharged by the Respondent until the fol-
lowing the week of July 18–25.
Based on the fact that this latter category of Laborers’-
represented employees clearly honored the Operating Engineer
strike on Thursday and Friday, July 14 and 15, I find it is fair
to assume that their withholding of their labor in the following
week until their discharge was also motivated in part by the
same Operating Engineers’ strike and picket line that had moti-
vated them just days before. I find therefore that these employ-
ees were striking during the week of July 18 in support of the
unfair labor practice strike of the Operating Engineers. These
individuals were therefore sympathy unfair labor practice strik-
ers supporting the striking Operating Engineers Their right to
engage in support of other employees’ unfair labor practice
strike was not limited by the Laborers’ contracts. Accordingly
they were engaged in protected conduct on and after the Oper-
ating Engineers strike converted to an unfair labor practice
strike on the evening of July 15. This is so irrespective of the
status of the Laborers’ strike and picket line. Thus, their dis-
charge for striking is also a violation of the Act based on their
protected conduct in supporting the Operating Engineers’ unfair
labor practice strike.
Other Laborers’-represented employees worked up until the
commencement of the strikes, did not work on the initial day or
two of the strike and worked on Monday, July 18, not working
thereafter.34 All were terminated in the period of July 19–25 by
the Respondent for participating in an illegal strike. Thus,
33 The dates of employment and the dates of the termination slips of
Laborers’ represented employees is established by uncontested business
records. These employees include Arvayo, Bailon, Miranda, Ripalda,
and Spean.
34 These employees include Crater, Enriquez, Escalante, and Pete.
GRANITE CONSTRUCTION CO. 227
these individuals did not work on at least 1 day of the Operat-
ing Engineers’ initial 2 day economic strike, but worked on the
first day of the Operating Engineers’ converted unfair labor
practice strike before again ceasing work and being discharged
in consequence thereof. I find that the fact that these employ-
ees did not work for at least 1 day of the Operating Engineers’
initial July 14 and 15 economic strike is sufficient objective
evidence of these employees’ motivation to support and make
common cause with the Operating Engineers and the Operating
Engineers-represented striking employees to find that these
Laborers’-represented employees were similarly motivated
when they again ceased work after July 18. Thus I find that
these employees were also sympathy unfair labor practice strik-
ers acting in support of the Operating Engineers after July 18.
Accordingly they, too, were engaged in protected conduct and
their discharge for striking is also a violation of the Act based
on their conduct in supporting the Operating Engineers’ unfair
labor practice strike.
Laborers’-represented employee, Richard Pedrosa, worked
up to the day the Operating Engineers strike commenced,
missed the first day of the strike, worked the second day,
July 15, and did not work again. He was terminated on July 20
for engaging in an illegal strike. There is no direct evidence of
his motivations for not working on either July 14 or on and
after July 18. Since he worked on July 15 during the Operating
Engineers’ strike and stopped work the following working day
when the Laborers’ strike ensued, it may not be fairly con-
cluded that his conduct on and after July 18 in striking was in
support of the Operating Engineers’ strike. As to Mr. Pedrosa I
find that he was only honoring the Laborers’ unfair labor prac-
tice strike and that his conduct was not independently protected
as a result of his personal sympathetic honoring of the Operat-
ing Engineers’ strike on and after July 18.
c. Summary and conclusions regarding validity of the
Laborers’ discharges
(1) The Laborer-represented employees terminated on
July 15
I have found above that the Laborers’-represented employees
terminated on July 15 were honoring the Teamsters’ and Oper-
ating Engineers’ strikes and picket lines and were terminated in
consequence thereof. I found that no unfair labor practice
strike was underway at the time of their discharge. I further
found the terms of the Laborers’ 1991 contracts with the Re-
spondent remained in effect at relevant times and that the no-
strike language of the agreements validly prohibited employees
from engaging in economic or sympathy strikes or related
withholding of their labor. Given these findings I concluded
the Laborers-represented employees terminated on July 15 were
engaged in unprotected activity at the time of their discharges
and that the Respondent’s terminations of them for that reason
did not violate the Act. I therefore dismissed the relevant alle-
gations of the complaint.
(2) The labor represented employees terminated on and after
July 18
I have found that the Laborers’ strike of July 18 was initiated
in part in protest of the serious unfair labor practices of the
Respondent in terminating some 73 Operating Engineers’-
represented employees on July 15 because they honored the
Operating Engineers strike. I found, therefore, the Laborers’
strike was an unfair labor practice strike from its inception. I
further found that the 1991 extended contract provisions of the
Laborers’ agreements did not limit or restrict the Laborers call-
ing an unfair labor strike or the Laborers’ represented employ-
ees from honoring or joining such a Laborers’ strike. I found
therefore that the Laborers’-represented employees who hon-
ored the Laborers’ strike were unfair labor practice strikers
engaged in protected activity. I also found that all Laborers’-
represented employees who were discharged on and after July
18, including Richard Pedrosa, were honoring and/or joining
the Laborers’ unfair labor practice strike at the time of their
discharge. I further found that in discharging the Laborers’
represented employees on and after July 18 because of their
protected conduct as found above, the Respondent violated
Section 8(a)(3) and (1) of the Act.
I also found that all the Laborers’-represented employees
discharged on and after July 18 excepting Richard Pedrosa
were also honoring the Operating Engineers’ unfair labor prac-
tice strike and picket line at the time of their discharge by the
Respondent. I found that this was also protected activity inde-
pendent of and apart from the protected activity of honoring or
joining the laborer’s strike and picket line. Finally, I found that
all the Laborers’-represented employees discharged on and
after July 18, by the Respondent for engaging in an illegal
strike, except Richard Pedrosa, were discharged because of
their honoring the Operating Engineers’ unfair practice strike
and therefore the Respondent’s discharge of them also violated
the Act for that reason. I therefore sustained the relevant por-
tions of the General Counsel’s complaint in these regards.
3. The issue of condonation
There is no dispute that early on Haworth on behalf of the
Respondent made a determination that the discharged employ-
ees at issue herein would be eligible for “rehire.” Further, both
through specific one-on-one contact and solicitation and
through more general word of mouth solicitation, the Respon-
dent solicited the return to work of discharged employees from
each of the crafts throughout the period following the inception
of the strike. Finally, over time various discharged employees
returned to the Respondent’s employ.
The General Counsel and the Charging Party’s argue from
these facts that the Respondent had condoned any strike mis-
conduct that occurred and that, in consequence, even if the
employees’ conduct was initially improper and unprotected, the
Respondent may not properly assert that conduct as a basis for
discharge. The Respondent argues the condonation arguments
asserted against it are fatally flawed. Counsel for the Respon-
dent asserts at 46–47 of brief:

the General Counsel and Charging Parties misapply the doc-
trine of condonation, which operates to preclude employers
from relying on unprotected activity that has been forgiven as
a basis for future [emphasis in original] discharge or discipli-
nary action. The doctrine does not, however, transform, activ-
ity that was unprotected and illegal at the time it occurred into
legal activity nunc pro tunc.

The Respondent is correct that the doctrine of condonation
looks forward to estop the assertion by an employer of previ-
ously forgiven conduct as a basis of punishment and not back-
ward to render discipline previously administered improper. In
the instant case there is no suggestion that the Respondent ever
decided to abandon its apparently uniformly applied policy
during the events in question of discharging employees who
were striking. The actions of the Respondent that the General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
Counsel and the Charging Parties identify as constituting con-
donation of employee misconduct on this record, are limited to
the occasions when the Respondent dealt only with the Re-
spondent’s decision that discharged individuals would be eligi-
ble for “rehire.” Rehire, a term in contrast to “hire,” by defini-
tion presupposes that an employee’s employment has been
previously severed and in the future is to be rejoined. Further,
the Respondent correctly notes that there is no claim that any
employee initially fired for striking and thereafter rehired has
been discharged a second time or disciplined as a result of the
originally asserted strike misconduct. Nor, in so far as the re-
cord reflects, has any previously discharged employment ap-
plicant been denied reemployment based on his or her strike
activities.
Given all the above, as well as at the cases cited by the par-
ties, I find that the doctrine of condonation does not apply to
the instant case.35 I further find no action of the Respondent
herein at issue was rendered improper as a result of the Re-
spondent’s prior forgiveness or condonation of employee strike
misconduct.
4. The allegations of violations of Section 8(a)(5) of the Act
There is no dispute that the Respondent met with each of the
Charging Parties at the scheduled bargaining sessions after the
strikes, announced that the period of extension of the contract
which had previously been agreed to had now passed and that
the contracts had expired, withdrew recognition from each
Union and thereafter at least to the time of the close of the hear-
ing failed and refused to recognize or bargain with any Charg-
ing Party respecting any of its employees. Following each final
meeting, the Respondent implemented certain changes in terms
and working conditions of employees heretofore in the units
covered by the contracts without notification to or bargaining
with the Charging Parties.
The General Counsel has alleged a variety of violations of
Section 8(a)(5) and (1) of the Act respecting this admitted con-
duct. Those allegations and the Respondent’s asserted defenses
are discussed below.
a. Withdrawal of recognition—repudiation of the bargaining
relationships
There is no doubt that for many years the Unions had been
recognized by the Respondent as exclusive representatives of
employees in the units noted. Such relationships in the usual
setting create a presumption of majority employee support for

35 One related line of cases is arguably relevant to the situation pre-
sented herein. Thus, for example, in Colonial Press, Inc., 207 NLRB
673 (1973), enf. denied 509 F.2d 850 (8th Cir. 1975), cert. denied 423
U.S. 833 (1975), the Board held an employer’s postdischarge offers of
reemployment made to strikers discharged for misconduct which offers
were made during a continuing unfair labor practice strike acted to
convert through condonation the terminated employees into unfair labor
practice strikers. The Respondent notes the contrary views of the court
of appeals in denying enforcement in the case as well as the possible
subsequent acquiescence of the Board in similar rejections of its doc-
trine. See White Oak Coal Co., 295 NLRB 567 (1989). Since there is
no contention in the complaint and no contention made at trial that
properly discharged strikers, for example the Teamsters’-represented
employees herein, sought from or were denied by the Respondent any
of the rights of accruing to unfair labor strikers seeking to return to
work, this narrow condonation issue is not raised by the unfair labor
practice pleadings and is therefore not ripe for me to decide. See,
infra, in the representation case portion of this decision for revisitation
of the issue in the context of voting eligibility.
the representing union in each bargaining unit and an employer
is normally obligated to continue to recognize the union as the
representative of unit employees and on request meet and bar-
gain with the union respecting the terms and conditions of em-
ployment of unit employees. There are a variety of situations
in which this is not the case however. The Respondent ad-
vances a series of arguments asserting that no obligation to
recognize the Unions continued beyond the dates on which
repudiation occurred. They are appropriately dealt with sepa-
rately as below.
(1) Was the Respondent’s withdrawal of recognition privileged
by Section 8(f) of the Act?
The Respondent contends its withdrawal of recognition in
each case occurred in bargaining relationships governed by
Section 8(f) and not Section 9 of the Act and was for that rea-
son proper under the Act. The General Counsel and the Charg-
ing Parties argue the reverse, that the relationships at issue
were Section 9 relationships at relevant times and not con-
trolled by the provisions of Section 8(f) of the Act.
(a) The distinction in an Employer’s bargaining obligations
under Section 9 and 8(f) of the Act
Section 9 of the Act defines a union’s exclusive representa-
tion of employees in a unit as being premised on majority em-
ployee support for the union. The obligations the Act imposes
on employers to bargain with unions respecting their employees
in Section 8(a)(5) is subject to the provisions of Section 9 of the
Act and only certain of those obligations fall on the parties to
an 8(f) relationship.
Section 8(f) of the Act contains special provisions respecting
bargaining relationships in the building and construction indus-
try which do not meet the normal requirements of employee
majority support or other provisions of Section 9 of the Act. A
construction labor organization may therefore represent con-
struction employees of an employer in the building and con-
struction industry under the terms of the Act in one of two
ways: (1) in a regular or “Section 9” relationship meeting the
majoritarian tests of the Act under Section 9 as applied to all
nonconstruction industry employers or (2) in an exceptional,
building and construction industry specific 8(f) relationship
wherein only the requirements of Section 8(f) as opposed to
Section 9 are met.
The rights, duties, and obligations of the parties in an 8(f)
relationship differ from those in a Section 9 relationship. The
Board in John Dekelwa & Sons, 282 NLRB 1375 (1987), and in
later cases, see, e.g., James Luterbach Construction Co., 315
NLRB 976 (1994), holds that an employer in an 8(f) relation-
ship with a union may, in the absence of a current collective-
bargaining agreement, simply withdraw recognition of the
union and avoid any further obligation to bargain under the Act.
(b) Arguments of the parties respecting the bargaining rela-
tionships at issue herein
The General Counsel and the Charging Parties argue that
there are six appropriate bargaining units: One construction and
one rock, sand, and gravel unit for each of the three Charging
Parties. The General Counsel and the Charging Parties argue
that the Unions were recognized by the Respondent as repre-
sentative of the employees in the three construction units pur-
suant to Section 8(f) of the Act in 1980, but that in 1980 or in
1982 these relationships converted to Section 9 relationships on
the demonstration to the Respondent that a majority of the em-
GRANITE CONSTRUCTION CO. 229
ployees in each unit desired to be represented by the then rec-
ognized Charging Party. The General Counsel and the Charg-
ing Parties further argue that the three rock, sand, and gravel
units are not and have never been within the building and con-
struction industry as that term is used in Section 8(f) of the Act
and therefore the bargaining relationships in place could never
have been governed by the provisions of that section of the Act
and therefore must be analyzed and considered as always hav-
ing been Section 9 relationships.
The Respondent argues that the putatively separate rock,
sand, and gravel and construction units for each of the Charging
Parties are not in fact separate units. Rather the Respondent
argues that there have been a total of three units: a single build-
ing and construction industry unit for each Charging Party
comprising all the employees formerly represented by each
craft under the paired contracts until 1994. The Respondent
argues that the recognitions accorded the Unions and continued
bargaining relationships respecting these three, or in the alter-
native six, units fell under Section 8(f) rather than Section 9 of
the Act from the time initial recognition was granted in 1980
and that the bargaining relationships remained governed by the
provisions of Section 8(f) as opposed to Section 9 throughout
their lives.
(c) How many bargaining units are there?
There is no doubt that the Unions and the Respondent since
the onset of their relationship in 1980 treated the rock, sand,
and gravel, and construction units separately. Thus, they with-
out exception negotiated separate and independent contracts
with separate and independent terms and conditions of em-
ployment between rock, sand and gravel, and construction.
Further, they followed the terms of the contracts providing
employees different terms depending on the type of work done.
There is no evidence on this record that at any time during the
bargaining relationships between the parties any proposal was
ever made, let alone agreed to, to merge the rock, sand, and
gravel unit with the construction unit for any or all the Charg-
ing Parties. Indeed, as part of the parties’ undertakings in the
representations cases in this proceeding during the period after
recognition had been withdrawn by the Respondent from the
Unions, consent election agreements entered into by all the
parties herein and approved by the Regional Director provided
that separate construction units were appropriate for purposes
of collective bargaining under Section 9 of the Act.
The Respondent argues that despite these circumstances, the
rock, sand, and gravel and construction employees in each craft
are so interrelated and commingled in their work that no true
separate identity or community of interest exists sufficient to
sustain separate units. The General Counsel and the Charging
Parties challenge that assertion arguing that separation and
independent communities of interest do in fact exist. Further,
they argue that, to the extent some employees may work within
both units, the work has consistently been tracked and as-
signed to one or the other of the two units represented by each
craft because such work was at all times paid under two differ-
ent contracts at differing contract rates terms.
The Board has differing standards for judging bargaining
units depending on whether they are historic or prospective and
also depending on the expressed desires of the parties concern-
ing the breadth of the unit. On this record, the history of sepa-
rate recognition, and bargaining as well as the separate contrac-
tual coverage throughout the period in question convinces me
that the rock, sand, and gravel employees and the construction
employees in each craft should be held to be in separate units,
unless under Board representational law standards such units
would be inappropriate even if all the parties desired such units.
Applying that standard, there is no question—indeed, I do not
believe the Respondent argues otherwise—that the separate
units of rock, sand, and gravel employees and construction
employees were appropriate during the time the Respondent
continued to recognize the Unions as representatives of its em-
ployees.36
I find therefore that at all times material there were six bar-
gaining units: a rock, sand and gravel unit of employees and a
construction unit of employees for each of the three crafts in-
volved herein. I further find that those bargaining units at all
times material herein were appropriate for collective bargaining
as defined by Section 9 of the Act.
(d) Were any of the recognition and bargaining relationships
between the Respondent and the Charging Parties governed by
Section 8(f) of the Act at relevant times?
I. THE ROCK, SAND, AND GRAVEL UNITS
Section 8(f) of the Act applies by its terms to: (1) employers
primarily in the building and construction industry, (2) dealing
with labor organizations in which building and construction
employees are members, (3) concerning employees engaged in
the building and construction industry. The Respondent is such
an employer. The Charging Parties are such labor organiza-
tions. The issue here is whether or not the rock, sand and
gravel employees involved herein are engaged in the building
and construction industry.
As counsel for the Operating Engineers points out on brief,
the Board has repeatedly held that the rock, sand and gravel
business is not a part of the building and construction industry
as that term is used in Section 8(f) of the Act citing Forest
City/Dillon-Tecon Pacific, 209 NLRB 867, 870 (1974); Hoo-
ver, Inc., 240 NLRB 593 (1979); Teamsters Local 83 (Cahill
Trucking), 277 NLRB 1286 (1985); J. P. Sturrus Corp., 288
NLRB 668 (1988).
Indeed a Board case arising in another context reached such
a conclusion regarding the Arizona rock, sand, and gravel in-
dustry in the period just before the Respondent commenced
operations. As noted supra, in 1980 the Respondent became a
part of an association representing rock, sand, and gravel indus-
try employers in the State of Arizona in bargaining with unions
representing their employees, recognized the Unions as repre-
sentatives of its rock, sand, and gravel employees and signed
the Arizona Rock Products agreement then in place. The rock,
sand, and gravel employees working under the Arizona Rock
Products multiemployer 1973–1976 and 1976–1979 agreements
were held not to cover construction work and to therefore be
outside the coverage of Section 8(f) of the Act. Teamsters
Local 83 (Various Employers), 243 NLRB 328 (1979).
Based on all the above, I find that at all relevant times the
employees in the three rock, sand, and gravel units of the Re-
spondent at issue herein were not doing work within the build-

36 My finding deals with the period before the Regional Director act-
ing as agent of the Board approved the consent agreements noted supra
which definitively established the appropriateness of the separate rock,
sand and gravel and construction units as of the time of the elections in
those representation cases. I regard the representation case unit deter-
minations as binding upon me for that later period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
ing and construction industry as that term is used in Section 8(f)
of the Act. It follows that the relationship between the Unions
and the Respondent respecting those units could not be gov-
erned by Section 8(f) of the Act but must meet the tests of Sec-
tion 9 of the Act.
Given the finding that Section 9 is the controlling statutory
prism through which to view and evaluate the parties’ relation-
ships respecting the rock, sand, and gravel units, I find that
those relationships during the 1991–1994 contracts must be
treated as valid 9(a) relationships. This is so because under the
Supreme Court’s decision in NLRB v. Bryan Mfg. Co., 362 U.S.
411 (1960), a contract between an employer and a union gov-
erned by Section 9(a) as opposed to Section 8(f) of the Act will
be irrefutably presumed to be valid and the union to have prop-
erly represented a majority of employees at the time the con-
tract was entered into if, as herein, the contract was more than 6
months old at the time it was under challenge as a minority
contract.37
Having found as a matter of law that the contracts were
valid, applying traditional Board law applicable to nonbuilding
and construction units, I further find that the Unions enjoyed a
presumption of continuing majority status following the expira-
tions of the contracts. This being so, the Respondent could not,
as a matter of right and without overcoming the presumption of
continuing majority representation in each Charging Party unit,
simply withdraw its longstanding recognition of each Charging
Party as the exclusive representative for purposes of collective
bargaining of the employees in the relevant rock, sand and
gravel unit.
II. THE CONSTRUCTION UNITS
There is no dispute that the three units described herein as
construction units meet all the tests described, above, for quali-
fication under Section 8(f) of the Act. The Board presumes that
the recognition and subsequent bargaining relationship between
unions and employers in such construction units is established
under Section 8(f) of the Act rather than Section 9(a) of the Act
unless and until proved otherwise. Casale Industries, 311
NLRB 951 (1993).
The General Counsel and the Charging Parties contend,
however, that the instant three construction unit relationships
were clearly changed into 9(a) relationships beginning in 1980
or, in the alternative, on and after 1982 and that nothing
thereafter occurred to derogate from that status. The
Respondent challenges the arguments of the General Counsel
and the Charging Parties with respect to the legal significance
of the 1980 and 1982 events.

The General Counsel and the Charging Parties argue that the
Respondent both as they hired given employees starting in 1980
and in June 1982 as part of a process in which all of its em-
ployees were required to reapply for employment, had its em-
ployees, including the employees in the three units in question
herein, fill out the Respondent’s “Employee Record” Form

37 The Court reasoned that since Sec. 10(b) of the Act precludes the
finding of an unfair labor practice more than 6 months preceding the
filing of a charge, a contract more than 6 months old may not be at-
tacked as invalid by means of a claim that the union committed an
unfair labor practice by entering into contract at a time it did not repre-
sent a majority of employees.
107.38 These forms had a section designated with the caption
“Union” in which one of three boxes could be checked:
“Northern California Union,” “Southern California Union,” or
“Other Area.” Following those choices the form provides a
series of checkoff boxes containing different craft union titles,
e.g., Engineers, Laborers, Teamsters, Carpenters, and Other.
Finally the word Local followed by an underlined space: “Lo-
cal _____,” was provided on the form to enter the appropriate
trade union local number. The parties stipulated that in 1980
and in 1982, the majority of employees in each of the units
involved herein designated the relevant Charging Party39 in the
spaces noted above on the forms.
The General Counsel and the Charging Parties argue these
forms were (1) a poll of employee sentiments respecting union
representation and (2) the filled out forms were designations of
support for the Unions which in their totality were notice to the
Respondent of the Unions’ majority support in each unit and
established or converted the bargaining relationships as or to
Section 9(a) relationships. The Respondent challenges the
assertion that the entries were ever intended by the employees
or the Unions to be designations of majority support. The Re-
spondent also challenges that the forms were ever recognized
by the Respondent as a designation by employees of their
wishes respecting union representation for purposes of collec-
tive bargaining. Rather the Respondent contends the forms
were intended to solicit and record information from employees
to be used in the Respondent’s payroll accounting functions.
The Respondent further argues the information on the forms
and the forms themselves were used exclusively for that pur-
pose at all times. Finally, the Respondent argues that at no
time did any Charging Party ever claim that it represented a
majority of employees in a unit at issue herein and at no time
was any reference made to the Form 107 entries or any other
evidence as supporting such a claim of majority.
The Board in dealing with construction industry relationships
held in Precision Striping, 284 NLRB 1110 , 1112 fn. 6 (1987):

6 An employer-conducted poll prior [emphasis in original] to
initial recognition may, in proper circumstances, establish a full
Section 9 bargaining relationship. San Clemente Publishing
Corp., 167 NLRB 6 (1967); see [John] Deklewa [& Sons, 282
NLRB 1375 (1987)] at 1387 fn. 53.

Applying the requirements of Precision Striping, it is clear
there was never a poll conducted prior to initial recognition.
The 1980 Form 107’s at issue herein were filled out as employ-
ees were in the process of being hired. The record is clear that
in 1980 the Unions had been recognized before any employees
were hired. This being so, the Respondent’s initial recognition
of each Union in the construction units in 1980 was clearly
under Section 8(f). Thus the 1980 or the 1982 events may not
be judged in a prerecognition setting where a union’s demand
for initial recognition or the employer’s consideration of grant-
ing of initial recognition was at issue.
What is involved herein are events that took place in the con-
text of an existing 8(f) recognition by the Respondent of the
Charging Parties. Judging the events of 1980 and 1982 in this
context, I find that neither the 1980 forms nor the 1982 forms
38 The form was the Respondent’s data form used to initially record
its employees’ names, addresses, social security, and tax information as
well a certain other information.
39 Designations included predecessor or constituent locals of the
Charging Parties herein.
GRANITE CONSTRUCTION CO. 231
may properly be held to be a showing of majority support for
the Charging Parties in the relevant units. I make this finding
for several reasons. First, in the absence of an initial recogni-
tion context, it is not clear that such a poll would be sufficient
under Board cases. There are sound reasons why such a non-
initial recognition setting should make it more difficult to find
particular events will charge an employer with knowledge of
employee sentiments in favor of union representation. A non-
initial recognition context makes it more likely that the em-
ployer, in the absence of clear and unambiguous circumstances,
will not be looking to employee sentiments inasmuch as the
recognition having been previously granted is not in issue.
This is particularly true in the instant case where the designa-
tions are ambiguous on their face as expressions of employee
union support and the Respondent offered evidence to show
that it had not viewed the information entered on the forms as
designations of employee support for the already recognized
bargaining representatives. The likelihood that there was nei-
ther conscious employee expressions of support for the Union
or an employer appreciation of the nature of the argued asser-
tions is substantially enhanced where, as the Respondent notes,
there was no specific demand by any Charging Party for a new
and different, majority-based 9(a) recognition.
Given all the above, I find that the proof required under Ca-
sale Industries, 311 NLRB 951 (1993), to establish a 9(a)
relationship respecting the construction units herein has not
been established. I find therefore that at all times material
herein the recognition afforded each of the Charging Parties
respecting the three craft construction units was pursuant to
Section 8(f) of the Act. I find that such a relationship does not
extend a presumption of employee majority support beyond the
life of the contract. Accordingly, the Respondent was not obli-
gated to continue to recognize nor meet and bargain with the
Charging Parties respecting the three construction units after
the expiration of the 1991–1994 contracts as extended.
(e) Conclusions respecting Respondent’s right to withdraw
recognition pursuant to Section 8(f) of the Act
I have found that the rock, sand, and gravel units repre-
sented by each Charging Party are not within the building and
construction industry and therefore are not and have not been
governed by the provisions of Section 8(f) of the Act. Accord-
ingly I find that the Respondent may not rely on the provisions
of Section 8(f) of the Act to justify its conduct in withdrawing
recognition of the Charging Parties as the exclusive representa-
tives of the employees in these units.
I have also found that the recognition afforded each Charg-
ing Party by the Respondent as exclusive representative of the
employees in the relevant construction unit was established and
maintained at all times thereafter pursuant to the provisions of
Section 8(f) of the Act and did not change to a recognition gov-
erned by Section 9(a) of the Act. Accordingly, the Respondent
could withdraw recognition or any or all the Charging Parties
as representative of the construction units at any time following
the expiration of the extended 1991–1994 construction agree-
ments. I shall therefore dismiss the complaint allegations as to
these latter units.
(2) Was Respondent’s withdrawal of recognition privileged
based on a good-faith doubt of the Unions’ continuing majority
support among unit employees?40
The Board with court guidance and approval holds that an
employer may rescind and withdraw recognition of a union as
representative of its employees, if the withdrawal of recognition
was based on a reasonably grounded doubt as to the union’s
continued majority support among unit employees, if that
doubt is asserted in good faith, based on objective considera-
tions and raised in a context free of employer unfair labor prac-
tices.
The predicate finding to consideration of the particular fac-
tors advanced as justifying and supporting the employer’s
doubts as to the union’s majority is that the employer’s doubt
were in fact related to the withdrawal of recognition. It is at
this threshold level that the Respondent’s arguments founder.
The Respondent, as noted supra, repudiated its recognition of
the Charging Parties on the days it believed each contract ex-
pired.41 It did so at meetings with the Charging Parties in
which, in effect, its hand-delivered letters spoke for it. The
letters unambiguously asserted the Unions’ earlier bargaining
and the strikes were the entire cause of the Respondent’s with-
drawals of recognition. No expressions of doubt respecting the
Union’s continuing majority as to any unit was included in the
letters or discussed at the meetings. Further the entire record is
consistent with this single motive.
Given all the above and in consideration of the record as a
whole, I find that Respondent’s argued doubts respecting any
Charging Party’s continuing support among any unit’s employ-
ees were simply not a factor whatsoever in the Respondent’s
decision to withdraw recognition for the Charging Parties in the
six units at issue herein. Accordingly, the entire defense of
good faith doubt to the withdrawal of recognition allegations in
the complaint is rejected.
(3) Was the Respondent’s withdrawal of recognition privileged
based on union misconduct?
The Respondent on brief has marshaled a series of cases
which stand for the proposition that, when a union has engaged
in misconduct such as engaging in an unprotected or illegal
strike, an employer may in certain circumstances withhold

40 The Respondent alleged a good–faith doubt as to the Unions’ ma-
jority of support in the rock, sand, and gravel units in its amended an-
swer. It adduced certain evidence at trial respecting expressions of
employees sentiments regarding the Unions to Respondent’s agents.
The defense of a good-faith doubt in a union’s majority status was
discussed and was the basis for evidentiary arguments and rulings at
trial. The Respondent’s posthearing brief, although very comprehen-
sive, does not argue a good faith belief as a defense to the 8(a)(5) viola-
tions alleged in the amended complaint. The brief does recite, without
indicating a withdrawal of the defense, its amended answer’s assertion
of a good-faith doubt as to the Union’s majority in the rock, sand, and
gravel units. That being so, although I have some doubt that the Re-
spondent is actively pursuing the defense, I shall address it here.
41 The letters made it clear that the Respondent’s view was that the
contracts extended to the conclusion of the individual meetings under
discussion herein. The Respondent made it clear that no new employ-
ees had been hired as of the time of these meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
bargaining and properly engage in certain actions which in
other circumstances would violate the Act including Dow
Chemical Co., 212 NLRB 333, 341 (1974); California Cotton
Cooperative Assns., Ltd., 110 NLRB 1494 (1954); Marathon
Electric Mfg. Corp., 106 NLRB 1171 (1953), enfd. sub nom.
Electrical Radio & Machine Workers of America v. NLRB, 223
F.2d 338 (D.C. Cir. (1955), cert. denied 350 U.S. 915 (1956);
United Elastic Corp., 84 NLRB 768 (1949). These cases also
apply to certain 8(a)(1) allegations of the complaint discussed,
infra.
The Respondent seems to argue that these cases also permit
an employer in some circumstances not only to withhold bar-
gaining with a union which has initiated or supported an illegal
strike but, further, to withdraw recognition of the union as
representative of the employer’s unit employees in sole conse-
quence of the union’s misconduct. This is an overreading of
the Respondent’s cited cases42 and without support in Board
doctrine. Accordingly, I find that no Charging Party miscon-
duct in striking or in supporting the strikes of the others herein
could or did in fact justify the Respondent’s withdrawing rec-
ognition or act under any equitable doctrine to estop the Charg-
ing Parties from complaining respecting such withdrawals of
recognition. Thus, this theory of the Respondent asserted in its
defense is rejected.
(4) Was the Respondent’s withdrawal of recognition privileged
based on the Charging Party’s actual loss of majority support in
any unit at issue herein
While I have rejected, supra, the concept seemingly asserted
by the Respondent that its withdrawal of recognition of the
Charging Parties was justified because of their misconduct in
striking and supporting the strikes of the others, there is an
analysis in the Board’s decision in Marathon Electric Mfg.
Corp., 106 NLRB 1171 (1953), a case advanced by the Re-
spondent, which must be addressed.
The General Counsel alleges that the Respondent violated
Section 8(a)(5) of the Act with respect to the units at issue
herein and alleges that the Charging Parties represented a ma-
jority of employees in each unit at all times there was a bar-
gaining obligation violation of Section 8(a)(5). The existence
of such majority support is a requirement for finding a violation
of Section 8(a)(5) of the Act in this setting. The Respondent
denied these majority allegations in its amended answer.
In Marathon, a union called a strike in breech of the con-
tract. The employer thereafter discharged 546 out of 550 unit
employees for engaging in an improper strike and canceled its
recognition of the union. The Board found the discharges were
not in violation of the Act. Further, the Board held that, in
the circumstances of the case, where the number of employees
had been reduced to a level of less than one percent of the regu-
lar staff, the unit no longer contained a substantial and repre-
sentative compliment of employees and therefore the em-
ployer’s cancellation of its recognition of the union was not
improper. 106 NLRB at 1181–1182.
Applying that analysis to the units in the instant case in light
of the findings, supra, concerning the validity of the strikes and
discharges preceding the Respondent’s withdrawal of recogni-
tion, I make the following findings.

42 See however the further discussion and application of Marathon to
the issue of actual union majority support, in the immediately following
section of this decision.
The Operating Engineers did not engage in an illegal strike
and the discharged employees were discharged in violation of
the Act. These events therefore could not, as a matter of law,
derogate from the Operating Engineers’ majority support in the
unit. The discharged employees remained part of the unit for
all purposes relevant here. Thus, this defense is not sustained as
to the two Operating Engineers’ units.
The Laborers’ unit experienced depletion through discharge
in the period July 1525, but only 14 of the discharges were
permissible.43 The improper discharges, as noted above, do not
fatally reduce the unit compliment. The depletion of the unit
occurring as a result of the discharges sustained, above, were
not of a magnitude and proportion sufficient to hold that the
Laborers no longer represented a majority of employees in
either unit for that reason
The Teamsters’ units, as in Marathon, suffered very substan-
tial depletion in both the rock, sand, and gravel, and construc-
tion units as a result of the terminations of July 15. As to each
unit, I reach the same conclusion reached in Marathon, that as a
result of the discharges the units did not have a substantial and
representative compliment of employees during the period ex-
tending from the date of the discharges on July 15 to the date
the Respondent withdrew recognition on July 25.44 Thus, at the
time the Respondent withdrew recognition from the Teamsters
as representatives of the two Teamsters’ units, neither unit
possessed actual majority support for the Teamsters’ sufficient
to support a bargaining obligation.
(5) Summary and conclusions respecting withdrawal
of recognition
Summarizing the holdings above, I have found that at all
relevant times there have been six appropriate bargaining units
at issue herein: three construction units and three rock, sand,
and gravel units.
I found the Respondent was privileged as a matter of right to
withdraw recognition from each Charging Party respecting its
construction unit. This was so because I determined that at all
relevant times these three units were represented by the Charg-
ing Parties pursuant to the provisions of Section 8(f) and not
Section 9(a) of the Act and that no contract was in force at the
time of withdrawal. The Board holds employers may withdraw
recognition of unions in such circumstances at will.
I found the Respondent was not privileged as a matter of
right to withdraw recognition from each Charging Party re-
specting its rock, sand, and gravel unit. This was so because I
determined that at all relevant times those three units were rep-
resented by the Charging Parities pursuant to the provisions of
Section 9(a) and not Section 8(f) of the Act. I rejected the Re-
spondent’s asserted defense that it had a good-faith doubt that
the Unions’ represented a majority of employees in the units
governed by Section 9(a) of the Act at the time it withdrew
recognition. I also rejected its asserted defense that the mis-
conduct of each Charging Party in improperly striking or sup-
porting the strikes of the others justified its withdrawal of rec-
ognition.
43 Perhaps three Laborers were rock, sand, and gravel unit employees
44 The Respondent offered unchallenged testimony that no new em-
ployees were hired in any unit until the Respondent canceled the con-
tract at the first bargaining sessions following the strikes. Those ses-
sions were also the occasions for the Respondent withdrawing recogni-
tion from each Charging Party.
GRANITE CONSTRUCTION CO. 233
I found under the Board’s Marathon majority analysis that
the Teamsters’ units did not have a substantial and representa-
tive complement of employees at the time the Respondent
withdrew recognition and that, accordingly, the Respondent had
no bargaining obligation at the time it withdrew recognition in
either unit. I found that sufficient employee complements were
extant at all relevant times in each of the Operating Engineers’
and Laborers’ units.
Given all of the above, I find that the Respondent did not
violate Section 8(a)(5) and (1) of the Act when it withdrew
recognition from the Teamsters respecting the construction unit
and the rock, sand and gravel units heretofore represented by it.
These allegations of the complaint will be dismissed.
I find that the Respondent did not violate Section 8(a)(5)
and (1) of the Act when it withdrew recognition from the Oper-
ating Engineers respecting its construction unit, but that it did
violate Section 8(a)(5) and (1) of the Act when it withdrew
recognition of the Operating Engineers as representative of the
rock, sand and gravel unit. Therefore, the former allegation of
the complaint shall be dismissed and the latter sustained.
Similarly, I find that the Respondent did not violate Section
8(a)(5) and (1) of the Act when it withdrew recognition from
the Laborers respecting its construction unit, but that it did
violate Section 8(a)(5) and (1) of the Act when it withdrew
recognition of the Laborers as representative of its rock, sand
and gravel unit. Therefore, the former allegation of the com-
plaint shall be dismissed and the latter sustained.
b. Failure to meet and bargain and implementation of uni-
lateral changes
Following withdrawal of recognition of the Charging Parties
in each of the units involved herein, the Respondent admittedly
refused to recognize or meet and bargain with any Charging
Party despite their requests that bargaining continue. There is
no dispute that the Respondent thereafter unilaterally imple-
mented changes in terms and conditions of employment of
employees in each unit. The General Counsel’s complaint
alleges these actions were violations of Section 8(a)(5) and (1)
of the Act. Because of the findings earlier made, it is appropri-
ate to address the allegations as follows.
(1) The construction units
I found, supra, that the construction units were governed by
Section 8(f) of the Act and that no presumption of majority
support for the representing union existed with respect to these
units after the expiration of the contracts which were coincident
with the Respondent’s withdrawals of recognition. I therefore
found that the Respondent was entitled to withdraw recognition
from each Charging Party with respect to the construction unit
previously represented by it.
Consistent with that analysis, after the withdrawal of recog-
nition the Respondent had no obligation to further bargain with
the Charging Parties respecting the construction units and could
unilaterally implement whatever changes it desired in construc-
tion unit employees’ terms and conditions of employment. The
Respondent has therefore not violated Section 8(a)(5) of the
Act as alleged. I shall therefore dismiss these allegations of the
amended complaint.
(2) The rock, sand, and gravel units
(a) The Teamsters’ unit
I found, above, that at the time the Respondent withdrew
recognition from the Teamsters respecting its units,45 the units
did not possess substantial and representative compliments of
employees and therefore the Respondent had no obligation to
recognize and bargain with the Teamsters. Consistent with that
analysis, after the withdrawal of recognition of the Teamsters
as representative of employees in the Teamsters rock, sand, and
gravel unit, the Respondent had no obligation to further bargain
with the Teamsters respecting its rock, sand, and gravel unit
and could unilaterally implement whatever changes it desired in
that unit’s employees’ terms and conditions of employment.
The Respondent has therefore not violated Section 8(a)(5) of
the Act as alleged. I shall therefore dismiss these allegations of
the amended complaint.
There is a second basis for dismissing the failure to meet and
bargain and unilateral change allegations respecting the Team-
sters units. The Respondent on brief cites a panoply of cases
for the proposition that a union’s illegal strike justifies em-
ployer responding conduct including an employer’s suspension
of bargaining during the period of the illegal strike as well as an
employer’s making of unilateral changes in working conditions
of employees working during the strike. Dow Chemical Co.,
212 NLRB 333, 341 (1974); California Cotton Cooperative
Assns., 110 NLRB 1494 (1954); Marathon Electric Mfg. Corp.,
106 NLRB 1171 (1953), enfd. sub nom. Electrical Workers UE
v. NLRB, 223 F.2d 338 (D.C. Cir. 1955), cert. denied 350 U.S.
915 (1956); United Elastic Corp., 84 NLRB 768 (1949).
The Teamsters’ strike was found, supra, to be in violation of
the terms of the extended contracts and the strike was never
called off insofar as this record indicates.46 Accordingly, the
Respondent during the entire period covered by the complaint
allegation was never obligated to resume bargaining with the
Teamsters. Thus, its continuing failure to meet and bargain and
its implementation of unilateral changes in Teamsters’ units for
this reason as well did not violate Section 8(a)(5) and (1) of the
Act. I shall therefore dismiss these allegations of the complaint
on this basis as well.
(b) The Operating Engineers’ unit
I have found, supra, that the Operating Engineers represented
the Operating Engineers rock, sand, and gravel unit pursuant to
Section 9(a) of the Act.47 Thus, after the contract expired the
Operating Engineers’ enjoyed a normal presumption that a
majority of unit employees desired representation and, absent a
valid defense, the Respondent remained obligated to recognize
and bargain with the Operating Engineers respecting that unit. I
rejected all the Respondent’s asserted defenses to this obliga-

45 This analysis therefore also applies to the Teamsters’ construction
unit. It is not necessary to emphasize that point in light of my earlier
findings that under Sec. 8(f) of the Act, the Teamsters’ no longer rep-
resented the construction unit at the time the Respondent withdrew its
recognition.
46 The Board held in Arundel Corp., 210 NLRB 525 (1974), that a
strike in violation of the no-strike provisions of a contract could not
change in character, i.e., convert to an economic or unfair labor practice
strike, until the strike was terminated and the status quo ante restored
citing Electrical Workers UE v. NLRB, 223 F.2d 338, supra.
47 This analysis would also apply to the Operating Engineers’ con-
struction unit, but for my earlier finding that the construction unit was
governed by Sec. 8(f) rather than Sec. 9(a) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
tion, supra, finding the Respondent’s withdrawal of recogni-
tion of the Operating Engineers as representative of the Operat-
ing Engineers rock, sand, and gravel unit was a violation of
Section 8(a)(5) of the Act.
That analysis applies to the allegations herein. The Respon-
dent’s obligations included, as all obligations established under
Section 9(a) and governed by Section 8(a)(5) of the Act, the
obligation to meet and bargain with the representing union
concerning terms and conditions of represented employees.
The Act also requires an opportunity be provided to the union
by the employer to bargain before changes in those terms and
conditions are implemented.48 I find therefore that the Respon-
dent in failing to meet and bargain with the Operating Engi-
neers on and after its withdrawal of recognition of the Operat-
ing Engineers as the representative of the rock, sand, and gravel
unit and its unilateral implementation of changes in working
conditions in that unit violated Section 8(a)(5) and (1) of the
Act. The complaint in these regards shall be sustained.
(c) The Laborers’ unit
The Respondent argues that the Laborers’ Union did not take
the affirmative actions required under its contracts to stop the
Laborers’ represented employees from honoring the strikes
conducted by the Teamsters and the Operating Engineers on
July 14 and 15, 1994. Thus, the Respondent notes the no-strike
provision of the rock, sand, and gravel agreement asserts that
the Laborers Union will not,

cause, permit or authorize in any fashion, nor will any mem-
ber of the Union take part in any strike . . . sympathy, or any
other kind of strike .

The record suggests that when the Laborers’ agents were asked
by Laborers’-represented employees what to do during the
Operating Engineers and Teamsters July 14 and 15 picket lines
and strike, they responded, in effect, that while the Laborers’
were not on strike, the employees had to decide on their own
what they wanted to do.
Assuming, without deciding, that the Laborers were obli-
gated to affirmatively discourage represented employees to
disregard the July 14 and 15 picket lines and strike and failed to
do so, I do not find this misconduct may be held akin to the
affirmative solicitation of employee support of and participa-
tion in illegal strikes, or the actual calling of a strike and estab-
lishment of picket lines by the unions in the cases cited, supra.
Thus I do not find that the sanctions against the unions allowed
in those cases or the allowance of certain types of normally
prohibited employer conduct rendered permissible as a result of
union misconduct in those cases properly apply to the Laborers’
Union or to the Respondent’s dealings with the Laborers’ Un-
ion herein. Thus, the fact that the Laborers’ may have not
taken sufficient affirmative action to discourage employee sup-
port for the July 14 and 15 Operating Engineers’ and Team-
sters’ strikes, may not on this record privilege any of the Re-
spondent’s actions on and after it withdrew recognition of the
Laborers’ as representative of the appropriate rock, sand, and
gravel unit almost 2 weeks later and many days into the Labor-
ers’ unfair labor practice strike, as found, supra.

48 While circumstances exist in some cases where implementation of
changes in a context free of employer unfair labor practice following a
bona fide impasse in bargaining are not impermissible, no realistic
argument may be made on this record that such was the case respecting
the Operating Engineers’ rock, sand, and gravel negotiations.
Given this finding, my analysis proceeds as did that respect-
ing the Operating Engineers which is set forth immediately
above and will not be repeated here. I find therefore that the
Respondent in failing to meet and bargain with the Laborers on
and after its withdrawal of recognition of the Laborers as the
representative of the relevant rock, sand, and gravel unit and its
unilateral implementation of changes in working conditions
during that period respecting that unit violated Section 8(a)(5)
and (1) of the Act. The complaint in these regards shall be
sustained.
(d) Summary
I have found above that the Respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act respecting its post contract with-
drawal of recognition of the Unions, failures to meet and bar-
gain with the Unions and its unilateral changes in terms and
conditions of employment of employees in the following units:
The Charging Party Teamsters’ construction and rock, sand,
and gravel units, the Laborers’ construction unit and the Oper-
ating Engineers’ construction unit. The applicable complaint
allegations shall be dismissed.
I have found above that the Respondent violated Section
8(a)(5) and (1) of the Act respecting its post contract with-
drawal of recognition of the Unions, failure to meet and bargain
with the Unions and its unilateral changes in terms and condi-
tions of employment of employees in the following units: The
Charging Party Operating Engineers rock, sand, and gravel unit
and the Charging Party Laborers rock, sand, and gravel unit.
The applicable complaint allegations are sustained.
5. Independent allegations of violations of Section 8(a)(1) and
(5) of the Act
The General Counsel’s complaint at paragraph 17 alleges
various conduct during the strike by the Respondent’s agents in
16 subparagraphs: 17(a) through (p). The allegations address
several general classes of conduct. First, the complaint alleges
various threats to strikers and picketers that they would be dis-
charged, receive reduced wages or lose seniority if they did not
cross the picket lines, abandon the strike and return to work.49
Second, the complaint alleges various statements by the Re-
spondent’s agents that the Unions were out, out for good, done
or would never get back in or return to the workplace.50 Third,
49 Complaint subpar. 17(a) asserts that on or about July 14, 1994, the
Respondent, by Wayne Embry at the Respondent’s Ehrenberg, Arizona
plant, threatened to discharge its employees if they refused to cross the
picket lines of the Operating Engineers and the Teamsters. Subpar.
17(b) asserts that on or about July 14, 1994, the Respondent, by Dave
Richards on the telephone, advised an employee that if said employee
would not cross the picket line in the cab of Richard’s truck concealed
with a blanket, he would be terminated. Complaint subpar. 17(f) asserts
that on or about July 25, 1994, the Respondent, by Paul Polito at one of
the Teamsters’ or Operating Engineers’ picket lines told employees that
if the employees did not return to work by July 30, 1994, the employ-
ees would be treated as new hires making a dollar less than scale. This
conduct is also alleged in the complaint at par. 19(a) to violate Sec.
8(a)(5) of the Act.
50 Complaint subpar. 17(c) asserts that on or about July 18, 1994, the
Respondent, by Wayne Embry at the Respondent’s Ehrenberg, Arizona
plant, informed its employees that it was going nonunion. Complaint
subpar. 17(d) asserts that on or about July 21, 1994, the Respondent,
by Wayne Wells at one of the Teamsters or Operating Engineers picket
lines told employees that the Union was out and was never going to
return. Complaint subpar. 17(e) asserts that on or about July 24, 1994,
the Respondent, by Steve House at one of the Teamsters or Operating
GRANITE CONSTRUCTION CO. 235
the complaint alleges a series of things offered to strikers to
cause them to return to work including better wages, improved
benefits, profit sharing, superior equipment and employment,
for a relative.51 Fourth, and finally, subparagraph 17(j) asserts
that on or about August 9, 1994, the Respondent, by Andy
Wash and Doug Sturgess at the picket line near the Pima Cy-
prus Copper Mine, erected a construction zone in an attempt to
weaken the effect of the picketing and attempted to remove
pickets from the entrance to the site.
While the parties contested the allegations vigorously on
their facts and adduced various and sometimes contradictory
versions of events, the parties also contended, correctly, that
the conduct at issue had to be placed in the context of events
and that certain actions were either permissible or impermissi-
ble depending on, for example, the legality of the strikes in-
volved and the bargaining obligations of the Respondent at
relevant times respecting particular units of employees. These
basic four groups of allegations noted above will be addressed
separately.
a. The inducement to return allegations of 8(a)(1) and (5) vio-
lations of the Act
The General Counsel and the Charging Parties argue that an
employer’s offers of inducements to striking employees to re-
turn to work during a strike violates Section 8(a)(1) of the Act
and further violates Section 8(a)(5) and (1) of the Act as a form
of direct dealing with employees bypassing their exclusive

Engineers picket lines informed employees that the Union was done
and the strike was over with. Complaint subpar. 17(h) asserts that on or
about August 22, 1994, the Respondent, by Doug Sturgis at one of the
Teamsters’ or Operating Engineers’ picket lines told employees that the
Union was out for good. Complaint subpar. 17(i) asserts that on or
about September 8, 1994, the Respondent, by Andy Wash at one of the
Teamsters or Operating Engineers picket lines told employees that the
Union was definitely out; that the Respondent needed to do away with
the Union; that the Union would never get back in; and that Ted Ha-
worth had a vendetta against one of the business agents of the Operat-
ing Engineers.
51 Complaint subpar. 17(g) asserts that in or about mid-August 1994
the Respondent, by Rene Redondo at one of the Teamsters or Operating
Engineers picket lines attempted to induce employees to cross the
picket line by offering them their jobs back and promising that they
would receive the same profit sharing that he enjoyed. Complaint sub-
par. 17(k) asserts that on or about the end of August 1994, the Respon-
dent, by Andy Wash at the home of a striker, solicited the striker to
return to work and described benefits that the Respondent was offering
to returning strikers. Complaint subpar. 17(l) asserts that a few days
after July 14, 1994, the Respondent, by Terry Wright, solicited a striker
to return to work; and on or about mid-September 1994 solicited the
same striker to return to work with an offer of higher pay than the
striker was earning before the strike began. Complaint subpar. 17(m)
asserts that on or about July 16, 1994, the Respondent, by Wayne
Embry, solicited a striker to return to work and promised a job to the
striker’s son. Complaint subpar. 17(n) asserts that on or about Septem-
ber 8, the Respondent, by Danny Hoback, solicited a striking employee
to cross the picket line to return to work with a promise of better wages
and the use of an air-conditioned piece of equipment. Complaint sub-
par. 17(o) asserts that on or about July 17, 1994, the Respondent, by
Steve House, solicited a striking employee to cross the picket line to
return to work with the promise of increased wages and company bene-
fits. Complaint subpar. 17(p) asserts that near the end of August or
beginning September 1994, the Respondent, by Andy Wash, solicited a
striking employee to return to work by the use of the incentive of the
Respondent’s profit-sharing plan. This conduct is alleged in the com-
plaint at par. 19(a) to violate Sec. 8(a)(5) of the Act.
representative for purposes of collective bargaining. The Re-
spondent, relying on the improper union strike cases cited
supra, argues that in the face of an illegal strike not only is an
employer permitted to induce illegal strikers to return to work,
but there is no obligation of the part of the employer to bargain
with the union during such times and, therefore, no violation of
Section 8(a)(1) or Section 8(a)(5) and (1) of the Act may be
found irrespective of any possible resolution of the disputed
events underlying the allegations of illegal inducement. Each
position correctly asserts current Board doctrine, but the appli-
cation of those holdings to the facts of this case is somewhat
complex.
I have found that the Teamsters’ strike at its inception was in
breech of the no-strike provisions of the extended collective-
bargaining agreements. I further found that the Teamsters’
strike remained at all times an illegal strike. In these circum-
stances, I find, in agreement with the Respondent’s arguments
and cases cited on brief, the Respondent at no relevant time had
an obligation to bargain with the Teamsters and could offer
whatever terms and conditions of employment to the striking as
well as job applicant driver construction unit and rock, sand,
and gravel unit members it wished. Further, the Respondent
could with essential impunity induce these specific individuals
to abandon their improper strike and return to work. As to the
Teamsters’-represented employees, the Respondent’s defense is
essentially complete.
I have found that the Operating Engineers’ strike was eco-
nomic on July 14 and 15 and an unfair labor practice strike
thereafter. I found that the Respondent had no obligation to
recognize the Operating Engineers as the representative of its
operators’ construction unit after it withdrew recognition on
July 25. I further found, however, that it remained at all times
obligated to recognize and bargain with the Operating Engi-
neers as the exclusive representative of its employees in the
operators’ rock, sand, and gravel unit under Section 9(a) of the
Act. Given these findings, the Respondent could not properly
induce any of these rock, sand, and gravel unit employees to
return to work through the offer of terms and conditions of
employment different that those properly applicable to workers
who did not go on strike, but who rather continued to work.
The situation respecting the Laborers’ employees is more
complex. The Laborers’-represented employees who honored
the Teamsters’ and Operating Engineers’ strike of July 14 and
15 were not engaged in protected activity and the Respondent
could, consistent with the analysis of the Teamsters situation
above, offer inducements to those employees. After July 15,
the Laborers’ strike was an unfair labor practice strike and such
employer conduct was not permitted. So, too, the Respon-
dent’s bargaining obligations respecting the Laborers’ construc-
tion contract ended with its withdrawal of recognition at the
expiration of the contract, but did not end and continues to date
with respect to the Laborers’ rock, sand, and gravel unit.
It is possible with the Respondent’s payroll records in evi-
dence for the relevant period, to resolve the credibility con-
flicts respecting these complaint allegations, determine based
on the dates of the occurrences the nature of the strike and the
Respondent’s bargaining obligations at any given time concern-
ing the employees involved in the particular incident as well as
the unit placement of those employees. If the General Counsel
meets his burden of proof respecting the factual allegations of
any particular complaint subparagraph and, if the Respondent’s
asserted “context” defenses do not apply to that situation, a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
violation of Section 8(a)(1) and/or 8(a)(5) and (1) of the Act
may be found and, consistent with Board decisional law, a
proper cease-and-desist and notice remedy be included in the
final remedy directed. Given the complex and numerous viola-
tions earlier found and rejected, I find however that any such
additional violations found in this portion of the complaint
would not add to the scope of the violations found nor enhance
or augment the remedy directed herein.
As I have found supra, the Respondent has violated Section
8(a)(5) and (1) of the Act with respect to the Laborers’ and the
Operating Engineers’ rock, sand, and gravel units by withdraw-
ing recognition of the Unions, thereafter failing and refusing to
meet and bargain with them and unilaterally implementing
different terms and conditions of employment for unit employ-
ees. These new terms and conditions of employment were
admittedly on offer to all striking individuals and were accepted
by returning strikers and others. The remedy, including notice
language provided for these more general 8(a)(5) violations
found, will already include all that would properly be included
in a notice remedying the individual allegations in complaint
paragraph 17 respecting improper inducement.
Given all the above, I find that further analysis and consid-
eration of the illegal inducement portions of complaint para-
graph 17, whatever a final resolution of the factual52 and legal
issues might be, would not effect the violations found or the
remedy53 directed herein. Further consideration of the allega-
tions would without however burden the instant decision and
delay its issuance. Accordingly, I shall not further consider the
inducement allegations of paragraph 17 of the complaint.
b. The allegations of threats of discharge and statements the
Union’s did not represent employees
My analysis of the discharge threat elements of paragraph 17
of the complaint parallel those set forth above respecting the
inducement to strike complaint allegations. It is not improper
for an employer to threaten to discharge an employee if he does
not abandon an unprotected strike if, in fact, that employee is
engaged in an illegal strike. Conversely, such conduct clearly
violates the Act, if the employee is on an unfair labor practice
strike. In the same vein, if recognition of a union had been
properly withdrawn, as was true respecting the construction
units and as to the Teamsters’ rock, sand, and gravel unit, as
Respondent argues, it is not impermissible for an employer’s
agents to tell the discharged employees the union was out. A
violation occurs in the same circumstance if the union contin-
ues to represent employees, i.e., is not out.

52 As noted, supra, the General Counsel advanced the entire record as
supporting his argument that the Respondent engaged in a course of
conduct to rid itself of the Unions and the evidence in support of par.
17 of the complaint must be viewed in conjunction with that contention.
I have considered this evidence in a light most favorable to the General
Counsel for purposes of evaluating this argument. As noted above, I do
not believe the Respondent was engaged in such a planned course or
was deliberately managing bargaining events to create a pretext for
eliminating union representation. I would hold to that view even were I
do discredit each and every witness of the Respondent and credit each
and every witness of the General Counsel and the Charging Parties as
to the allegations of Sec. 17 of the amended complaint.
53 See discussion in the remedy section, infra, of the need to present
the notice language herein in a fashion that makes it clear to employees
and the parties just what is particular conduct by particular employees
was protected and not protected and what conduct violated and did not
violate the Act.
As found, above, all the terminated Operating Engineers’-
represented employees and approximately half the terminated
Laborers’-represented employees were in fact wrongfully dis-
charged and were told, in writing, that they were discharged
because they participated in the strike. The Respondent made
no secret of the fact and directly or indirectly informed the
Charging Parties, the strikers, job applicants, and new hires that
it was no longer recognizing the Unions or bargaining with
them. As to some of the employees and Unions, as set forth
with particularity, supra, these actions are part of the violations
found and will be remedied in the notice, infra. Thus, the com-
plaint paragraph 17 discharge threat allegations are but addi-
tional contested allegations of things found improper earlier as
noted above.
Again, the events in contest in complaint paragraph 17’s dis-
charge threats and assertion that the unions were out allega-
tions, in what ever way they are resolved, will not materially
add to the broad categories of violations found nor will they
add to the remedy directed. Accordingly, and also for the rea-
sons noted supra, I shall not further consider these additional
allegations of paragraph 17 of the complaint.
c. Complaint subparagraph 17(j)
The final subparagraph of paragraph 17, not discussed
above, is subparagraph 17(j) which alleges that on or about
August 9, 1994, the Respondent, by Andy Wash and Doug
Sturgess at the picket line near the Pima Cyprus Copper Mine,
erected a construction zone in an attempt to weaken the effect
of the picketing and attempted to remove pickets from the en-
trance to the site.
The testimony indicates that on or about August 9, Superin-
tendent Andy Wash and Foreman Doug Sturgis placed tempo-
rary highway warning signs on Pima Mine Road, a paved pub-
lic road, before and after the intersection of a dirt and gravel
access road which runs to a location at which the Respondent
was maintaining operations, from which the Respondent was
hauling materials and at which the Unions were picketing.
There is no dispute that large multiaxle “belly dump” mate-
rial haulers were regularly using the access and paved roads
and that pickets were seeking to impede the Respondent’s op-
erations. Sturgis testified that he received complaint from
truckers of possible safety problems caused by the pickets and
became concerned that motorists on Pima Mine Road could be
at risk in dealing with the trucks entering and leaving the access
road. Sturgis expressed his worries to Wash who erected tem-
porary “Truck Crossing” signs on Pima Mine Road some dis-
tance in each direction from the access road intersection.
Thereafter Wash spoke to the Operating Engineers’ picket
captain Thomas Tynes and asked that the pickets be moved
behind the signs, i.e., at some distance from the Respondent’s
operations and away from the trucks turning off and onto Pima
Mine Road. Tynes declined to move the picketing. Wash made
a similar request to Charging Party Operating Engineers’ repre-
sentative Henry Montaño who also declined. Respondent’s
agents thereafter abandoned efforts to move the pickets.
The General Counsel argues that the Respondent’s erection
of the road construction sign was an improper attempt to inter-
fere with the employees’ picketing and therefore violates Sec-
tion 8(a)(1) of the Act. The Respondent contests the allegation
arguing that its agents acted properly, even laudably, with
safety considerations in mind. There is insufficient evidence on
this record to conclude that Wash or Sturgis or the two together
GRANITE CONSTRUCTION CO. 237
determined to erect the signs simply as a pretext or vehicle for
distancing the pickets from the workplace. Further, there is
nothing in the erection of the signs which is inherently destruc-
tive of employee rights to picket. Indeed the pickets seem to
have been singularly unpersuaded by the circumstances or the
request that followed to move their picketing efforts. Under all
the circumstances, I find that the General Counsel has failed to
meet his burden of proof as to this allegation. Accordingly, I
shall dismiss this subparagraph of the complaint.
IV. THE REPRESENTATION CASES—RESOLUTION OF CHALLENGES
TO VOTERS54
Elections pursuant to Stipulated Election Agreements ap-
proved by the Regional Director were held in separate construc-
tion bargaining units on December 9, 1994 in Cases 28–RC–
5256 involving the Teamsters, Case 28–RC–5257 involving
the Operating Engineers, and Case 28–RC–5258 involving the
Laborers. Over 200 ballots were challenged in these elections
and the outcome of each election was dependent on the resolu-
tion of the challenged ballots in that election.
On January 9, 1995, the Regional Director issued an order of
directing hearing on challenged ballots consolidating cases and
notice ofhHearing in these three representation cases. That
order did not resolve any of the challenged ballots, but rather
referred all challenges to an administrative law judge for reso-
lution in conjunction with the consolidated unfair labor practice
allegations and directed that a report issue respecting the chal-
lenges to the elections in the three representation cases. There-
after during the trial of the consolidated proceeding the parties
submitted evidence, argument and various stipulations which
have substantially reduced the challenged ballot matters in
controversy. Certain findings on voter eligibility and the reso-
lution of some of the challenged ballots, infra, refer to and in-
corporate my earlier findings respecting certain unfair labor
practice matters, supra. The parties’ stipulations respecting the
representation cases also, in part, frame challenged ballot reso-
lution agreements and voter eligibility questions on the basis of
contentions in the unfair labor practice aspect of these consoli-
dated proceedings.55
A. Preliminary Ruling Respecting Voting Eligibility of Certain
Classes of Voters
In the cases of both the Laborers’ construction unit election
and the Teamsters’ construction unit election, the voting eligi-
bility of fired employees and their replacements are in contest.
Generally the stipulations of the parties frame eligibility ques-
tions in terms of the legality of the firing of the original em-

54As noted, above, I relied on the Respondent’s payroll records and
the parties’ stipulations in resolving variant voter name spellings.
Harmonization of the challenges as contained in the order directing
hearing on challenged ballots and the parties’ representation case stipu-
lations made the recited numbers of the types of challenges made by
each party in each representation case approximate.
55 The parties’ stipulations, entered into after substantial negotiation
and preparation by counsel, implicitly acknowledge Board representa-
tion case law regarding voter eligibility. To the extent the stipulations
frame issues of eligibility in terms of whether or not certain voters were
proper replacement employees or were themselves employees, the
parties clearly reached agreement on Board voter eligibility formulae
and recommend those formulae to me for my adoption and application
to the challenges. I find the standards implicitly adopted by the parties
comport with Board law and therefore accept the voter eligibility ques-
tions as framed by the stipulations save where specifically noted.
ployee. Thus, the implicit assertions that appear, infra, if an
employee was fired in violation of the Act he or she is eligible
to vote herein and any replacement employee is not so eligible
as well as the implicit corollary: if an employee was not fired
in violation of the Act, he or she is not eligible to vote herein
and any replacement is eligible to vote.56
As noted, supra, some employees who were fired for striking
have been found improperly discharged and other employees
who were fired for striking have been determined not to have
been improperly discharged in this proceeding. All discharged
strikers, including those not improperly or illegally fired, who
returned to work during the strike have been held eligible to
vote assuming other criteria of eligibility have been met. As
discussed, supra, the Respondent made it clear it would rehire
any or all the employees it discharged for striking. Some re-
turned to the Respondent’s employ; others continued to honor
the strike. The only difference between the former employees
who were fired, but who returned to work, and the former em-
ployees who were fired, but who declined to return to work
and, rather, honored the legal unfair labor practice strike of the
Laborers, is that the latter group chose to honor an unfair labor
practice strike picket line or join in an unfair labor practice
strike. Unfair labor practice strikers are eligible to vote. Are
properly discharged employees who are offered reinstatement,
but decline to return to work and rather honor the continuing
Laborers and Operating Engineers unfair labor practice strikes,
now actual or constructive unfair practice strikers or so akin to
unfair labor practice strikers as to be eligible to vote?
Further, if the discharged employees who were offered rein-
statement, but declined to cross the unfair labor practice strike
picket lines, are to be treated as unfair labor practice strikers,
should the new employees who replaced them be treated like
new hires replacing unfair labor practice strikers, i.e., should
the replacements be held to be ineligible to vote. The signifi-
cance of these questions is very substantial for the Teamsters’
unit challenges inasmuch as essentially all the employees were
terminated on July 15 and their discharges have not been held
to violate the Act. The discharged voters’ ballots as well as
their replacement voters’ challenged ballots are at stake. The
number of Laborers’ unit challenges are also significant.
As noted, supra, in Colonial Press, Inc., 207 NLRB 673
(1973), enf. denied 509 F.2d 850 (8th Cir. 1975), cert. denied
423 U.S. 833 (1975), the Board held an employer’s postdis-
charge offers of reemployment during a continuing strike made
to strikers discharged for misconduct during an unfair labor
practice, acted to convert through condemnation the terminated
employees into unfair labor practice strikers. As noted, unfair
labor practice strikers are eligible to vote in elections. Thus, if
this doctrine is current representation case law, the challenged
votes of former Petitioner-represented employees who were
properly discharged, but thereafter were offered reemployment,
but honored the unfair labor practice strike rather than return to
work, should be eligible to vote in the election and the chal-
lenges to their ballots should be overturned. I further find that
if the doctrine is good representation law, the replacements of
56 Employees hired to replace illegally discharged employees are not
eligible to vote. Roman Iron Works Corp., 285 NLRB 1178 (1987); Air
Cargo International Corp., 245 NLRB 478, 501 (1979). The Board has
long held that replacements hired for unfair labor practice strikers are
not eligible to vote in a representation case election. Larand Leisure-
lies, 222 NLRB 838 (1976); Tampa Sand & Materials Co., 137 NLRB
1549 (1962); Lock Joint Tube Co., 127 NLRB 1146 (1960).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
these discharged employees would not be eligible to vote in
these elections and the challenges to their ballots should be
sustained.
The Respondent, on brief, points out the contrary views of
the Court panel majority denying enforcement in Colonial
Press. This is not persuasive before me however, for adminis-
trative law judges are bound to follow Board precedent unless
and until that precedent has been overturned by the Supreme
Court or reconsidered by the Board. The Respondent further
notes however that the Board may have changed its views as to
this form of employer condemnation of discharged employees.
See White Oak Coal Co., 295 NLRB 567 (1989). That case
however is not a clear reversal or modification of the Colonial
Press, Inc. holding as it applies herein. Further, neither the
case nor the broader doctrine is set forth in a representation
case voter eligibility context.
Under all the circumstances, and despite the fact that the
Board has recently noted the desirability of harmonizing unfair
labor practice and representation case doctrines, see O.E.
Butterfield, supra, I do not view the Board’s Colonial Press
decision as controlling of the voter eligibility questions at issue
herein. The case is simply not so clear as to command substan-
tial departure from traditional representation case law on its
own without clearer authority for the propositions under con-
sideration. Accordingly, I shall not apply the Colonial Press
doctrine to the eligibility questions presented below. The eligi-
bility of challenged voters who were either employees dis-
missed without violating the Act or replacements of those em-
ployees will be determined consistent with the apparent inten-
tions of the stipulations of the parties.
B. Report on Challenged Ballots
1. Case 28–RC–5256—the Teamsters construction unit
Thirty-nine voters were challenged in the December 9 elec-
tion respecting the drivers and truck mechanics and apprentices
unit. Seventeen were challenged by the Employer on the
ground that they were not employees. Twenty were challenged
by the Petitioner Teamsters on the ground that they were not
replacement employees. Two were challenged by the Board
agent on the ground that their names were not listed on the
election eligibility list.
a. The Teamsters’ challenges
The parties stipulated that the eligibility of the ballots of the
below listed individuals turned on whether or not they were
lawful replacements. As I have found, above, the Teamsters’
represented employees were not improperly discharged on July
15 for striking. Therefore the following individuals are not
ineligible to vote because they replaced illegally discharged
employees. Accordingly, I find them eligible to vote.

Barton, Bryan Briggs, Jimmy
Burney, William Byron, Christopher
Corrales, Joe Figueroa, Henry
Freyenhagen, Lee Gauthier, Richard
Gilmore, Martin Lender, Dennis
Linegar, Larry Martinez, Ramon
McCan, Lawrence Montoya, Quirino
Moreno, Robert Mosier Thomas W. III
Nelson, Christen Ramon, William
Shumaker, Mark Sipe, James
Stalcup, Raymond Taylor, Charles
Wilson, James

The Teamsters withdrew their objection to the ballot of Mr.
Lawrence McCan and the parties stipulated he was eligible to
vote.
The parties stipulated that a determination of the eligibility
of voters Ron Dennee and James Michaels was not likely to be
determinative of the election. They further stipulated that, if a
determination of their eligibility should prove necessary after
termination of the hearings, the parties requested that the
Board refer these ballots back to the Regional Director for ex-
peditious resolution.
b. The Employer’s challenges
The parties stipulated that the eligibility of the below listed
individuals to vote turned on whether or not they had been law-
fully discharged for unprotected strike activities. As I have
found, supra, that the Teamsters’-represented employees were
not improperly discharged on July 15 for striking, I find these
individuals were not eligible to vote.

Arter, Wayne Bates, Paul
Carrasco, Mario Fitzgerald, Maureen
Gillock, David Green, George
Hightower, John Hull, Dwain
Knipp, Kenneth R. Sr. Medrano, Louis
Preston, Lloyd Scott, Richard
Walker, Carlton Wilson, Robert J.

The Employer withdrew its objection to the ballots of Wil-
liam Burney, Raymond Stalcup, and James Wilson and the
parties stipulated these three individuals were eligible to vote.
c. The Board’s challenges
The parties stipulated that challenged voters. Ramon Marti-
nez and William Walton were in the same circumstances and
would be controlled by the same analysis as that set forth above
respecting replacements. Consistent with that analysis, I find
Ramon Martinez and William Walton eligible to vote.
d. Summary of Teamsters unit challenged ballots
(1) Eligible voters—challenges overruled
The following 23 Teamsters unit voters were found eligible
to vote. I recommend the challenges to their votes be overruled
and their ballots be opened and counted:

Barton, Bryan Briggs, Jimmy
Burney, William Byron, Christopher
Corrales, Joe Figueroa, Henry
Freyenhagen, Lee Gauthier, Richard
Gilmore, Martin Lender, Dennis
Linegar, Larry Martinez, Ramon
McCan, Lawrence Montoya, Quirino
Moreno, Robert Mosier, Thomas W.
III
Nelson, Christen Ramon, William
Shumaker, Mark Sipe, James
Stalcup, Raymond Taylor, Charles
Wilson, James

(2) Ineligible voters—challenges sustained
The following 14 Teamsters unit voters were found not eli-
gible to vote. I recommend the challenges to their ballots be
sustained.

Arter, Wayne Bates, Paul
GRANITE CONSTRUCTION CO. 239
Carrasco, Mario Fitzgerald, Maureen
Gillock, David Green, George
Hightower, John Hull, Dwain
Knipp, Kenneth R. Sr. Medrano, Louis
Preston, Lloyd Scott, Richard
Walker, Carlton Wilson, Robert J.

(3) Challenges not resolved by agreement of the parties
The following two Teamsters’ challenged ballots eligibility
has not been determined but, in light of the parties stipulation,
the issues as to these individuals should be deferred until, if
necessary, following the counting of the ballots found eligible
supra: Ron Dennee and James Michaels.

2. Case 28–RC–5257—the Operating Engineers construction
unit
One hundred fifteen voters were challenged in the December
9 election respecting the equipment operators, servicemen,
grade checkers, heavy equipment mechanics, and their appren-
tices unit. Thirty-three were challenged by the Employer on the
ground that they were not employees. Sixty-seven were chal-
lenged by the Petitioner Operating Engineers on the ground that
they were not replacement employees. Fifteen were chal-
lenged by the Board agent on the ground that their names were
not listed on the election eligibility list.
a. The Operating Engineers’ challenges
The parties stipulated that the eligibility of the below listed
individuals to vote turned on whether or not they were lawful
replacements. As I have found, above, that the Operating En-
gineers’ represented employees were improperly discharged on
July 15 for striking, these individuals are not replacements.
Accordingly, I find them ineligible to vote.

Abeyta, Ernesto Anderson, Cleo
Bejarano, Ray Borquez, Francisco
Borquez, Victor Bray, Greg
Canady, William Carroll, Charles
Castano, Ernest Clark, Douglas
Cole, Stewart Crowe, Scott
Daugherty, Charles Dodemont, Shayne
Fenn, Jason Finch, Michael
Garcia, Richard Henry, George III57
Glomski, Thomas Granillo, Ernie
Guerro, Juan Jose Herbert, David
S. Hernandez, Juan or
John
Housler, Chad
Howard, William Hughes, James
Jackson, Robert Jackson, Charles
Jacobs, Rufus Johnson, Chester
Johnson, Walter Keith, Marion
Kirkendall, David Mackey, Robert
Minor, Steve58 Moran, John

57 Henry George III was listed as challenged by the Petitioner Oper-
ating Engineers because he was not a proper replacement employee.
George was not listed on the parties’ stipulation addressing such chal-
lenges however. Inasmuch as I have found no Operating Engineers-
represented employee properly terminated, no replacement employee
in that unit has been found eligible to vote. Accordingly, George is
also not eligible to vote.
58 The order directing hearing on challenged ballots refers to Steve
Munoz, the parties’ representation stipulation and the Respondent’s
payroll records address Steve Minor.
Moss, Brian Nelson, Steven
Ochoa, Manuel Paugh, Daniel
Powell, Ray Pursley, Debra
Roe, Charles Rose, Robert
Rossen, Frank Shew, Michael
Sibley, Richard Simmons, Stanley
Stock, Gary Storm, George
Sturgis, Douglas Turner, Kevin
Urschel, Charles Wagner, Jim
Watson, Earl Weber, John
Werland, David Wetterstorm, Mark
Wilharm, Clinton Wofford, Bill

Four of the individuals challenged by the Operating Engi-
neers as unlawful replacements are in fact illegally discharged
Operating Engineers’ represented employees who returned to
work. They are eligible to vote.

Dunham, Walter H.
Figueroa, Brent
Hernandez, Julius
Wells, Eddie

The parties stipulated that Brian Addington was an eligible
voter. The parties further stipulated Ronald Dennee and James
Sipe were not eligible voters in the equipment operators unit.
b. The Employer’s challenges
The parties stipulated that the eligibility of the below listed
individuals to vote turned on whether or not they had been law-
fully discharged for unprotected strike activities. As I have
found, above, that the Operating Engineers’ represented em-
ployees were improperly discharged on July 15 for striking, I
find these individuals are eligible to vote.

Arriaga, Juan Bingham, Frederick
Casillas, Esgardo Click, Scott
Cooper, Jon Corrales, Richard
Cvitkovich, Dick Dunham, Walter R.
Galloway, Eddie Gustafson, Tom
Hunziker, Eugene Jordan, Charlie
Marsteen, Stephen Martinez, Florentino
McCormick, Kenneth McCune, Larry
McNeely, Brian59 Mercer, Timothy
Mozinga, Danny Musselman, Richard
Oliveres, Jose Price, David
Romero, Juan Sainz, Jerry
Scott, Kyle Sierra, Pablo
Spelbring, Suzanne Stubbins, George
Trivitt, James Tynes, Gregory
Tynes, Teddy

The parties stipulated that Bernard Bowman, was an eligible
voter.
The following voters eligibility has not been determined but,
in light of the parties stipulation, the issues as to these individu-
als should be deferred until, if necessary, following the count-
ing of the ballots found eligible supra: Louis Hiltunen
59 The order directing hearing on challenged ballots names Brian
McNeely as a challenged voter, the parties’ representation cases stipu-
lation does not address his ballot. McNeely has been found to be an
improperly discharged Operating Engineers-represented employee. He
is therefore eligible to vote.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
c. The Board’s challenges
The Board agent challenged 15 voters because their names
did not appear on the Employer’s prepared eligibility list.
The parties stipulated that Frederico Bernal was an eligible
voter. They also stipulated that individuals: Merrill Bowman,
William Burkett, Peter Knagge, Paul B. Price III, Jeffrey Sem-
rad, and Gerald Wilson were ineligible voters.
Jeff Wallen has apparently been at all times material engaged
in work in the rock, sand, and gravel unit and is therefore not
eligible to vote in the operator’s construction unit. Daniel
Quiroga and Beverly Kelley were each employed in the unit,
but apparently with too few qualifying hours. In all events no
party argues any of these individuals were eligible to vote. I
shall therefore sustain the challenges to them.
Fred Weller was an improperly discharged striker and as
such would be eligible to vote, if otherwise qualified. Indeed,
the Employer’s brief at 87 argues Weller should be held eligi-
ble to vote as a returned striker, yet the fact that his vote was
challenged by the Board agent indicates Weller’s name was not
on the Employer’s voter eligibility list as were the other dis-
charged strikers found eligible to vote, supra. Under these
circumstances, I find it appropriate to defer resolution of
Weller’s eligibility to vote, if necessary, following the counting
of the ballots found eligible herein.
The following voters’ eligibility have not been determined
but, in light of the parties stipulation, the issues as to these in-
dividuals should be deferred until, if necessary, following the
counting of the ballots found eligible above: Donald Garrett,
Richard Lincoln, Kevin Sarrah, and Larry White.
d. Summary of Operating Engineers’ unit challenged ballots
(1) Eligible voters—Challenges overruled
The following 38 Operating Engineers’ unit voters were
found eligible to vote and I recommend the challenges to their
ballots be overruled and the ballots be opened and counted
consistent with Board procedure.

Addington, Brian Arriaga, Juan
Bernal, Frederico Bingham, Frederick
Bowman, Bernard Casillas, Esgardo
Click, Scott Cooper, Jon
Corrales, Richard Cvitkovich, Dick
Dunham, Walter H. Dunham, Walter R.
Figueroa, Brent Galloway, Eddie
Gustafson, Tom Hernandez, Julius
Hunziker, Eugene Jordan, Charlie
Marsteen, Stephen Martinez, Florentino
McCormick, Kenneth McCune, Larry
McNeely, Brian Mercer, Timothy
Mozinga, Danny Musselman, Richard
Oliveres, Jose Price, David
Romero, Juan Sainz, Jerry
Scott, Kyle Sierra, Pablo
Spelbring, Suzanne Stubbins, George
Trivitt, James Tynes, Gregory
Tynes, Teddy Wells, Eddie
(2) Ineligible voters—Challenges sustained
The following 71 Operating Engineers’ unit voters were
found ineligible to vote. I recommend the challenges to the
ballots be sustained.

Anderson, Cleo
Abeyta, Ernesto
Bejarano, Ray Borquez, Francisco
Borquez, Victor Bowman, Merrill
Bray, Greg Burkett, William
Canady, William Carroll, Charles
Castano, Ernest Clark, Douglas
Cole, Stewart Crowe, Scott
Daugherty, Charles Dennee, Ronald
Dodemont, Shayne Fenn, Jason
Finch, Michael Garcia, Richard
George, Henry III Glomski, Thomas
Granillo, Ernie Guerro, Juan Jose
Herbert, David Hernandez, Juan or
John S.
Housler, Chad Howard, William
Hughes, James Jackson, Robert
Jackson, Charles Jacobs, Rufus
Johnson, Chester Johnson, Walter
Keith, Marion Kelley, Beverly
Kirkendall, David Knagge, Peter
Mackey, Robert Minor, Steve
Moran, John Moss, Brian
Nelson, Steven Ochoa, Manuel
Paugh, Daniel Powell, Ray
Price, Paul Pursley, Debra
Quiroga, Daniel Roe, Charles
Rose, Robert Rossen, Frank
Shew, Michael Sibley, Richard
Simmons, Stanley Simrad, Jeffrey
Sipe, James Stock, Gary
Storm, George Sturgis, Douglas
Turner, Kevin Urschel, Charles
Wagner, Jim, Wallen, Jeff
Watson, Earl Weber, John
Werland, David Wetterstorm, Mark
Wilharm, Clinton Wilson, Gerald
Wofford, Bill
(3) Challenges not resolved
The following six voters’ eligibility has not been determined.
I recommend that their ballots be remanded to the Regional
Director for further investigation in the event the opening of the
ballots found eligible herein is not determinative of the elec-
tion.

Garrett, Donald
Hiltunen, Louis
Lincoln, Richard
Sarrah, Kevin
Weller, Fred
White, Larry

3. Case 28–RC–5258—The Laborers’ construction unit
Fifty-two voters were challenged in the December 9 election
respecting the laborers unit. Ten were challenged by the Em-
ployer on the ground that they were not employees. Twenty -
nine were challenged by the Petitioner Laborers on the ground
that they were not replacement employees. Thirteen voters
were challenged by the Board agent on the ground that their
names were not listed on the election eligibility list.

GRANITE CONSTRUCTION CO. 241
a. The Laborers’ challenges
The following individuals were challenged by the Petitioner
Laborers on the ground that they were not replacement employ-
ees:

Broughton, John Dekens, Bryan
Gonzales, Enrique Gradillas, Endurado
Green, Ronald Hawkins, Logan
Hernandez, Tony Huff, Chad
Lee, Jacob Major, Rex
Newman, Paul Nikitas, Angelo
Olivas, Miguel Rau, Mardy
Sharp, Leroy Sturgis, Chad
Tellez, Alfredo Urbina, Jesus
Zilko, Mike

The parties stipulated that the eligibility of the individuals
challenged by the Laborers to vote turned on whether or not
they were “lawful replacements.” It is clear that the term used
implicitly defines the replacements of not improperly fired
employees as “lawful” and the replacement of illegally termi-
nated employees as not “lawful.” As noted, supra, this stipu-
lation was easily applied to the employees represented by the
Operating Engineers and the Teamsters. In light of the fact that
I have found some Laborers’ represented employees to have
been properly discharged and others improperly discharged, the
standard requires some elaboration. Given my findings respect-
ing the discharges as set forth, supra, the replacements of the
fourteen not improperly discharged Laborers’-represented em-
ployees otherwise meeting the eligibility formula are eligible
voters and the replacements of the 10 improperly discharged
Laborers’-represented employees and any other Laborers’-
represented unfair labor practice strikers are not eligible to
vote.
The Board in representation case voter eligibility questions
turning on the status of replacement employees assigns the
burden of proof to the employer “[b]ecause an employer is the
party with superior access to the relevant information.” O. E.
Butterfield, Inc., 319 NLRB 1004, 1006 (1995). Inasmuch as
the same superiority of access to the relevant information ap-
plies here, I find that the Respondent bears the burden of proof
in demonstrating that particular voters were replacements for
legally terminated rather than illegally terminated or unfair
labor practice striking Laborers’ employees.
The record contains no evidence on the issue save employee
payroll records. From these records it may be determined what
units the properly discharged employees were terminated from
and when and in what order “replacements” were hired in the
laborer’s construction unit at issue herein.
The records indicate that 10 of the 14 Laborers’-represented
employees found not improperly discharged on July 15 may be
fairly regarded as employed in the construction unit.60 One of
the remaining ten individuals, Chad Sturgis, returned to work
on August 1 and is eligible to vote. Thus nine terminated la-
borer construction unit employees were properly fired and re-
placed by the Respondent and the new hired individuals who
constituted their replacements and Sturgis are eligible to vote.

60 Florencio Trahin, Rubin Gallardo, Joel Gonzales, and Rodolfo
Lugo for purposes of this analysis were rock, sand and gravel employ-
ees who would not have been replaced by newly hired members of the
laborers construction unit.
It seems logical to assume that the Respondent would replace
employees in the order terminated.61 Thus, the first replace-
ment hired to work in the construction unit will be held to have
replaced the first employee in the construction unit not improp-
erly terminated. An examination of the Respondent’s records
regarding the hire of new laborers construction unit employees
or the transfer of laborer’s rock, sand, and gravel unit employ-
ees to construction unit work on and after July 28 allows the
identification of the first nine laborers construction unit em-
ployees hired or transferred to do the work of the nine not im-
properly terminated laborer construction unit employees.62
Including Sturgis, the eligible laborer’s construction unit re-
placement employees are:

Broughton, John
Gonzales, Enrique
Hernandez, Tony
Huff, Chad
Lee, Jacob
Major, Rex
Newman, Paul
Rau, Mardy
Sturgis, Chad
Zilko, Mike

The remaining replacement employees challenged by the
Laborers may fairly be construed to be replacements for the
subsequently discharged Laborers’-represented employees.
Since these individuals were found to be improperly dis-
charged, above, their replacements are not eligible to vote. I
therefore sustain the challenges to the following employees.

Dekens, Bryan
Green, Ronald
Gradillas, Eduardo
Hawkins, Logan
Nikitas, Angelo
Olivas, Miguel
Sharp, Leroy
Tellez, Alfredo
Urbina, Jesus

The Laborers originally challenged the following individu-
als, but thereafter stipulated that they were eligible voters:

Buckner, Roy
Escamillas, Jess
Gonzales, Joe
Granillo, Guillermo
Gresham, Jimmy
Jarvis, Justin
Padilla, Adalberto
Van Alstine, Ron

The following voters’ eligibility has not been determined
but, at the request of the parties, resolution of issues as to these
individuals will be deferred until, if necessary, following the
counting of the ballots found eligible, supra: Daniel S. Diaz
and Ronnie Diaz.
61 Cf. Larand Leisurelies, Inc., 222 NLRB 838 (1976), for an order
of hire analysis in a replacement context.
62 Thus, for example, although Eduardo Gradillas was hired before
Rex Major, Gradillas did rock, sand, and gravel unit work until a time
after Major was hired for and commenced construction unit work.
Therefore Major is held to have an earlier date of unit employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
b. The Respondent’s challenges
The following individuals were challenged by the Respon-
dent on the ground that they were not employees:

Bailon, Mercedes
Chavez, Jose
Lopez, Guillermo
Lugo, Rudolfo
Mesa, Loreno63
Pedroza, Richard
Przyblski, Ken
Ruiz, Robert
Sanchez, Victor
Valdez, Carlos
Zengia, Francisco

The parties stipulated: “The question of whether the [chal-
lenged] individuals were not employees will be decided by the
Board [in the instant consolidated proceeding].” Of the 11
individuals, 9: Messengers. Jose Chanez, Guillermo Lopez,
Rodolfo Lugo, Laureano Meza, Kenneth Przybylski, and
Roberto Ruiz,64 Victor Sanchez, Carlos Valdez, and Francisco
Zengia, were among the 14 Laborers’-represented employees
found, above, to have been not improperly discharged on July
15. These nine individuals are therefore not eligible to vote and
I shall sustain the challenges to their ballots.
The two remaining challenged individuals: Mercedes Bailon
discharged on July 18 and Richard Pedrosa discharged on July
20, were found improperly discharged above. They are there-
fore eligible to vote in the election in all events and I shall over-
rule the challenges to their votes.
c. The Board’s challenges
In addition to Loreno Mesa discussed above, the Board agent
challenged the following individuals.

Dojaque, Zeferino
Camarena, Antonia
Diggins, Daniel
Esquivel, Hector Jr.
Esquivel, Hector Sr.
Jaramillo, Robert
Leal, Adalberto
Monge, Casimiro
Moreno, Frank
Pacheco, Richard
Valencia, Manual
Yebra, Juan

The parties stipulated the following individuals on this list
were not eligible to vote: Antonio Camarena, Robert Jaramillo,
Adelberto Leal, Casimiro Monge, Frank Moreno, Manual Va-
lencia, and Juan Yebra.
The parties stipulated the following individuals on this list
were eligible to vote: Daniel Diggins, Hector M. Esquivel Jr.,
Hector M. Esquivel Sr., Richard Pacheco, and Zeferino B. Do-
jaque.

63 Laureano Meza was challenged by the Board agent because his
name was not on the eligibility list. Because he is one of the employees
found properly discharged by the Respondent on July 15 and did not
thereafter return to work, he is best considered as part of this group of
challenged voters.
64 Roberto Ruiz returned to work in 1995 after the December 9, 1994
election.
d. Summary of Laborers unit challenged ballots
(1) Eligible voters—Challenges overruled
The following 25 Laborers’ unit voters were found eligible
to vote and I recommend the challenges to their ballots be over-
ruled and the ballots be opened and counted consistent with
Board procedure.

Bailon, Mercedes Broughton, John
Buckner, Roy Diggins, Daniel
Dojaque. Zeferino Escamillas, Jess
Esquivel, Hector M.
Jr.
Esquivel, Hector M.
Sr.
Gonzales, Enrique Gonzales, Joe
Granillo, Guillermo Gresham, Jimmy
Hernandez, Tony Huff, Chad
Jarvis, Justin Lee, Jacob
Major, Rex Newman, Paul
Pacheco, Richard Padilla, Adalberto
Pedrosa, Richard Rau, Mardy
Sturgis, Chad Van Alstine, Ron
Zilko, Mike
(2) Ineligible voters—Challenges sustained
The following 25 Laborers unit voters were found ineligible
to vote. I recommend the challenge of the ballots are be sus-
tained.

Camarena, Antonio Chanez, Jose
Dekens, Bryan Green, Ronald
Gradillas, Eduardo Hawkins, Logan
Jaramillo, Robert Leal, Adelberto
Lopez, Guillermo Lugo, Rodolfo
Meza, Laureano Monge, Casimiro
Moreno, Frank Nikitas, Angelo
Olivas, Miguel Przybylski, Kenneth
Ruiz, Roberto Sanchez, Victor
Sharp, Leroy Tellez, Alfredo
Urbina, Jesus Valdez, Carlos
Valencia, Manual Yebra, Juan
Zengia, Francisco
(3) Challenges not resolved
The following two voters’ eligibility has not been deter-
mined. I recommend that their ballots be remanded to the Re-
gional Director for further investigation in the event the open-
ing of the ballots found eligible herein is not determinative of
the election.

Diaz, Daniel S.
Diaz, Ronnie

REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from and take certain affirmative action designed to effectuate
the purposes and policies of the Act including the posting of
remedial notices.
The language of a notice is intended to inform employees
and other interested individuals of the results of the litigation
and to notify them of the actions to be taken by the respondent
and the assurances given by the respondent respecting its future
conduct. The notice should in no circumstances be ambiguous
or misleading respecting the rights and obligations of employ-
ees and others under the Act and great care should be taken to
GRANITE CONSTRUCTION CO. 243
insure that the notice does not mislead or misrepresent the law
or the litigation from which it resulted.
As set forth supra, the Respondent’s conduct has been found
to have violated the Act with respect to certain bargaining units
and the employees employed therein. Similar, if not identical,
conduct by Respondent has been found not to have violated the
Act as to other bargaining units and the employees employed
therein. In order to insure that readers of the notice do not mis-
apprehend the somewhat elusive distinctions which produced
the differences in results herein, the notice is somewhat longer
and differently organized that the standard Board remedial
notice for the types of violations found. Further inasmuch as
the discharge of a substantial proportion of striking unit em-
ployees is of such a serious nature and strikes at the very heart
of rights intended to be protected by the Act, it is appropriate to
include a broad cease and desist order requiring the Respondent
to cease and desist “in any manner” from infringing upon em-
ployee rights. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536–
537 (4th Cir. 1941). See also Hickmont Foods, 242 NLRB 1357
(1979).
In remedying the violations of Section 8(a)(3) and (1) found
herein, I shall apply the teachings of the Board’s decision in
Abilities & Goodwill, Inc., 241 NLRB 27 (1979). Thus, the
Respondent will be directed to offer its wrongfully terminated
striking employees immediate reinstatement to their former
positions discharging, if necessary, any replacements hired after
the date of their unlawful discharges or, in the event those posi-
tions no longer exist, to substantially equivalent positions.
Further the Respondent shall make each wrongfully discharged
striker whole for any and all loss of earnings and benefits he or
she may have suffered commencing at the time of his or her
discharge, with interest. The make whole and interest provi-
sions shall be calculated in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977); with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987); see also Isis Plumbing Co.,
138 NLRB 716 (1962) , and will include the applicable reme-
dies directed respecting the violations of Section 8(a)(5) and (1)
of the Act, infra.
The Respondent shall be required to recognize the Operating
Engineers and the Laborers with respect to the operators and
laborers rock, sand and gravel units retroactively to the time
recognition was improperly withdrawn. On request, the Re-
spondent will meet and bargain with the Operating Engineers’
and the Laborers’ Unions respecting the two applicable rock
sand and gravel units and, in the event an agreement is reached
with respect to either or both units, shall sign the agreement or
agreements.
Further the Respondent will be ordered to restore the status
quo ante prevailing at the time of the wrongful withdrawal of
recognition in the two rock, sand and gravel units and to re-
scind the unilateral changes it undertook in July 1994 and
thereafter when it failed to continue the contracts’ terms and
conditions of employment respecting unit employees’ wages,
hours, and terms and conditions of employment; and to make
all affected unit employees—including the employees in these
two units found wrongfully discharged herein—whole for
losses they incurred by virtue of the Respondent’s unilateral
changes in their wages, fringe benefits, and other terms and
conditions of employment in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall fulfill its obligations to employee contractual
benefit funds in the manner set forth in Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1970), and shall reimburse its
employees in the manner set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), for any expenses resulting from the Respondent’s fail-
ure to make contractual payments.
CONCLUSIONS OF LAW
1. Respondent Granite Construction, Inc. is and has been at
all relevant times an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party Teamsters’ Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Charging Party Operating Engineers’ Union is a labor
organization within the meaning of Section 2(5) of the Act.
4. The Charging Party Laborers’ Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
5. (a) At all relevant times, the Charging Party Operating
Engineers’ Union has been the exclusive representative for
purposes of collective bargaining of the Respondent’s employ-
ees in the following unit:

All employees of the Respondent in the classifications re-
ferred to in Section 20 of the 1991–1994 Rock, Sand and
Gravel Agreement between the Operating Engineers’ Union
and the Respondent, but excluding office clerical employees,
and all guards and supervisors as defined in the Act.

(b) The unit described above in subparagraph (a) has at all
times material been appropriate for purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
6. (a) At all relevant times, the Charging Party Laborers’
Union has been the exclusive representative for purposes of
collective bargaining of the Respondent’s employees in the
following unit:

All employees of the Respondent in the classifications re-
ferred to in Section 20 of the 1991–1994 Rock, Sand and
Gravel Agreement between the Laborers’ Union and the Re-
spondent, but excluding office clerical employees, and all
guards and supervisors as defined in the Act.

(b) The unit described above in subparagraph (a) has at all
times material been appropriate for purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
7. The Respondent violated Section 8(a)(1) of the Act by:
(a) Informing economic and unfair labor strikers who were
not prohibited from striking by the terms of a current collective
bargaining agreement that they had been or would be dis-
charged for engaging in an illegal strike or would be if they did
not return to work.
(b) Informing economic and unfair labor strikers who were
not prohibited from striking by the terms of a current collec-
tive-bargaining agreement and who were at the time repre-
sented for purposes of collective bargaining by the Operating
Engineers or the Laborers in the rock, sand, and gravel units
described above, that the Respondent no longer recognized nor
would continue bargaining with their union on their behalf.
(c) Informing economic and unfair labor strikers who were
not prohibited from striking by the terms of a current collective
bargaining agreement and who were at the time represented for
purposes of collective bargaining by the Operating Engineers or
the Laborers in the rock, sand, and gravel units described
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
above, that they would work under new terms and conditions of
employment if they returned to work.
8. The Respondent violated Section 8(a)(3) and (1) of the
Act by discharging the following 73 Operating Engineers rep-
resented unit employees on July 15, 1994, because the employ-
ees were engaged in an economic strike against the Respon-
dent:
Arriaga, Juan Avila, Jose
Bingham, Frederick Bowman, Bernard
Butler, Glen Canady, William
Casillas, Esgardo Click, Scott
Cooper, Jon Corrales, Richard
Crosby, Mathew Cvitkovich, Dick
DeLaOssa, Abel Donald, Terry
Drake, John Dunham, Walter H.
Dunham, Walter R. English, Timothy
Figueroa, Richard Galloway Eddie
George, David Green, Lewis
Gustafson, Tom Hancock, Kent
Hernandes, Julius Hindman, Raymond
Horne, Rock Hosterman, Stanley
Hulsey, Donald Hunziker, Eugene
Iverson, Lester Jacobs, Clinton
Jordan, Charlie F. Jr. Jordan, Charlie F. Sr.
Marsteen, Stephen Martinez, Florentino
McCormick, Kenneth McCune, Larry
McDaniel, Bobby Joe McDaniel, William
McNeeley, Brian Mercer, John
Mercer, Timothy Moody, Jeff
Mozingo, Dannie Musselman, Richard
Olivares, Jose Price, David
Radloff, Kenneth Ramirez, Mike
Renteria, Alfredo Roberts, Diane
Romero, Ernesto Romero, Juan
Sainz, Jerry Scott, Kyle
Scott, Ron Sierra, Pablo
Sipe, Dennis Spelbring, Suzzane
Stockbridge, Jeri Stubbins, George
Sturgis, Douglas Sullivan, Carol
Tolley, Thomas Trivitt, James
Tynes, Gregory Tynes, Teddy
Van Prooyen, Brent Wallen, Jeff
Watson, Earl Weller, Fred

9. The Respondent violated Section 8(a)(3) and (1) of the
Act by discharging the following 10 Laborers’-represented unit
employees in the period July 18 through 25, 1994, because the
employees were engaged in an unfair labor practice strike
against the Respondent and because the employees, with the
exception of Richard Pedrosa, honored the unfair labor practice
strike of the Operating Engineers against the Respondent:

Arvayo, Ignacio Bailon, Mercedes
Crater, Daniel Enriquez, Jesus
Escalante, Jorge Miranda, Richard
Pedrosa, Richard Pete, James
Ripalda, Octavio Spean, Rexson

10. The Respondent violated Section 8(a)(5) and (1) of the
Act by engaging in the following acts and conduct.
(a) Respecting the Operating Engineers’ representation of
the employees in the Operators’ rock sand and gravel unit set
forth above.
(i) On July 19, 1994, withdrawing recognition of and at all
time thereafter failing and refusing to recognize the Union as
the exclusive representative of employees in the unit described
above for purposes of collective bargaining.
(ii) At all times on and after July 19, 1994, failing and refus-
ing to meet and bargain with the Union respecting unit employ-
ees.
(iii) At all times on and after July 19, 1994, unilaterally set-
ting terms and conditions of employment for unit employees
without notifying the Operating Engineers’ Union or affording
it an opportunity to bargain respecting such changes.
(b) Respecting the Laborers’ representation of the Respon-
dent’s employees in the Laborers’ rock, sand, and gravel unit
set forth above.
(i) On July 26, 1994, withdrawing recognition of and at all
time thereafter failing and refusing to recognize the Union as
the exclusive representative of employees in the unit described
above for purposes of collective bargaining.
(ii) At all times on and after July 26, 1994, failing and refus-
ing to meet and bargain with the Union respecting unit employ-
ees.
(iii) At all times on and after July 26, 1994, unilaterally set-
ting terms and conditions of employment for unit employees
without notifying the Laborers’ Union or affording it an oppor-
tunity to bargain respecting such changes.
11. The Respondent did not violate the Act as alleged in the
complaint by engaging in the following conduct respecting its
employees engaged in a strike prohibited by a current collec-
tive-bargaining agreement.
(a) Threatening the illegally striking employees with dis-
charge or other adverse consequences if they did not abandon
their illegal strike and return to work or establishing a construc-
tion zone to limit or move picketing employees from nearby the
Respondents operations.
(b) Discharging the illegally striking employees
(c) Offering the illegally striking employees inducements to
return to work.
12. The Respondent did not violate Section 8(a)(3) and (1)
the Act by terminating Teamsters’ and Laborers’ represented
employees striking in violation of the no-strike provisions of
the contracts
13. The Respondent did not violate Section 8(a)(5) and (1)
of the Act as alleged in the complaint by engaging in the fol-
lowing conduct.
14. (a) Withdrawing recognition from the Unions as exclu-
sive representatives of the Respondent’s three construction
units and refusing to meet and bargain with the Unions regard-
ing the construction units thereafter at a time when no collec-
tive-bargaining agreement covering the construction units was
in effect.
(b) Withdrawing recognition of the Teamsters’ Union as rep-
resentative of its drivers rock, sand, and gravel unit and thereaf-
ter refusing to meet and bargaining with the Union respecting
the unit because the union was engaged in an illegal strike and
because the unit no longer had a substantial and representative
compliment of employees after the discharge of striking em-
ployees on July 15.
GRANITE CONSTRUCTION CO. 245
(c) Unilaterally changing the terms and conditions of em-
ployment of its driver construction and rock, sand, and gravel
bargaining units on and after July 26, 1994, without negotiating
with the Teamsters’ Union.
14. The above unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]