[00:00:04] Speaker 01:
Case number 14-1252 at L, Aggregate Industries Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 01:
Mr. Hill for the petitioner, Ms.

[00:00:12] Speaker 01:
Lancha for the respondent.

[00:00:16] Speaker 06:
Good morning, Mr. Hill.

[00:00:16] Speaker 06:
We'll hear from you.

[00:00:21] Speaker 03:
May it please the court, Richard Hill, for appellant.

[00:00:24] Speaker 03:
I should perhaps explain at the outset that the only reason Mr. Winkler is not here to argue the case is that he retired at the end of last year.

[00:00:33] Speaker 03:
The linchpin of the board's decision in this case is the finding that aggregate industries made the unilateral decision to move drivers from the construction agreement to the rock, sand, and gravel agreement and presented that plan to the union as a fait accompli, thereby excusing the union from any obligation to bargain over the issue.

[00:01:01] Speaker 03:
If the linchpin is removed, the board's case begins to unravel.

[00:01:10] Speaker 03:
We submit that that finding is contrary to the record evidence as a whole, and it is specifically contrary to the finding of the administrative law judge who heard all three days and 553 pages of the testimony in this case.

[00:01:27] Speaker 03:
The key witness in the case, as acknowledged by the administrative law judge, was Sean Stewart, who the administrative law judge specifically credited with regard to his testimony concerning the events of 2010.

[00:01:42] Speaker 03:
Mr. Stewart consistently testified that aggregate industries made the decision to move trucks, or some trucks, and the work of material hauling, but not the drivers from the construction agreement to the rock, sand, and gravel agreement.

[00:02:00] Speaker 06:
But how are we to construe, you know,

[00:02:05] Speaker 06:
Basically the letters that were that were presented to the union employees on was it the October 1st meeting?

[00:02:16] Speaker 06:
How are we to construe all of that is that's not moving drivers?

[00:02:22] Speaker 03:
Well, remember that this all that occurred after the company sent the request for dispatch to the union under the Roxanne and gravel room.

[00:02:32] Speaker 03:
Mr. Stewart, he conceded that he couldn't unilaterally transfer drivers from the construction agreement to the rock, sand, and gravel agreement.

[00:02:41] Speaker 03:
And that's why he said, let's talk about it at the July 9 meeting.

[00:02:46] Speaker 03:
And that's why on September 24, the company sent dispatch requests

[00:02:52] Speaker 03:
to the union under the rock, sand, and gravel agreement.

[00:02:55] Speaker 03:
Had the union sent people on the rock, sand, and gravel out of work list, we would have had a completely different set of drivers and all of the construction people, all of the construction drivers would have been laid off.

[00:03:10] Speaker 04:
So did the union say we're not going to send, or did they say if you like we'll send people by seniority?

[00:03:18] Speaker 03:
No, the union said, the union's consistent position was you can't do any material hauling under the rock sand and gravel agreement, therefore we're not going to provide you with anybody.

[00:03:30] Speaker 03:
And then under the rock sand and gravel agreement, if the union doesn't provide anybody within 48 hours, then the employer has the right to solicit employees from other sources.

[00:03:44] Speaker 03:
And among the other sources was the company said to its existing drivers, if you want to come work for us under the rock sand and gravel agreement,

[00:03:55] Speaker 03:
we are certainly willing to take you.

[00:03:57] Speaker 03:
And it's up to you.

[00:03:59] Speaker 03:
It's a voluntary decision on your part whether you wish to work under the rock sand and gravel agreement or not.

[00:04:06] Speaker 03:
And furthermore, if you wish to work under the transition rates that we've offered to the Union, that is available.

[00:04:17] Speaker 03:
But the point about this- So you didn't have to do that, right?

[00:04:21] Speaker 04:
What's that?

[00:04:22] Speaker 04:
The company didn't have to do that.

[00:04:23] Speaker 03:
No, they could have hired non-union drivers.

[00:04:30] Speaker 03:
They didn't have to get union members at all to do the work.

[00:04:33] Speaker 03:
Once the union says, we're not going to dispatch you anybody, you can go hire off the street.

[00:04:41] Speaker 03:
But the company deliberately did not take that course of action.

[00:04:46] Speaker 03:
Because I think, as Mr. Stewart testified all along, they really liked their construction drivers.

[00:04:52] Speaker 03:
They wanted to keep those drivers, if at all possible.

[00:04:55] Speaker 03:
But this is why Mr. Stewart testified that there were really two parts to this July 9 meeting.

[00:05:03] Speaker 03:
The first part was he said, we're going to move the material deliveries from the construction agreement to the rock, sand, and gravel agreement.

[00:05:11] Speaker 03:
And he said the second part was he then asked the union

[00:05:16] Speaker 03:
if there's any way that we can move our construction drivers to the rock, sand, and gravel agreement.

[00:05:22] Speaker 05:
And the reason for that was?

[00:05:24] Speaker 03:
I think they liked the construction drivers.

[00:05:26] Speaker 03:
No, no, no.

[00:05:27] Speaker 03:
Why move them?

[00:05:29] Speaker 03:
Why move them?

[00:05:31] Speaker 03:
The, well, I think the biggest reason was that their competitors, CEMEX and one other company, were doing material deliveries under the rock, sand, and gravel agreement at lower rates than aggregate industries.

[00:05:46] Speaker 03:
Why do you want to work at a competitive disadvantage to your two big competitors?

[00:05:53] Speaker 03:
I mean, this was simply, and that was part of it.

[00:05:55] Speaker 03:
The other part of it.

[00:05:56] Speaker 05:
You get the advantage of the lower wage rate.

[00:05:58] Speaker 03:
Yeah, the rock, sand, and gravel had non-construction rates.

[00:06:03] Speaker 03:
And the other part of it that's kind of the background was that this is 2010.

[00:06:10] Speaker 03:
This is the Great Recession.

[00:06:12] Speaker 03:
This is when work is contracting throughout the construction industry.

[00:06:17] Speaker 03:
And that was really the backdrop for all of this.

[00:06:24] Speaker 05:
You know, the nub of our position here is... How many drivers were involved in the transfer from construction to ready mix?

[00:06:34] Speaker 03:
I believe at some point there were 60 total drivers doing construction, but I don't think all of them transferred.

[00:06:42] Speaker 03:
That was my next question.

[00:06:43] Speaker 03:
Did any of them refuse the offer?

[00:06:46] Speaker 03:
I think most, remember the company did keep some people, they did have some construction work remaining so they didn't want to transfer all the drivers.

[00:06:56] Speaker 05:
If a driver refused to accept the offer of the graduated pay under the ready mix agreement,

[00:07:06] Speaker 05:
Would they be fired?

[00:07:07] Speaker 03:
No.

[00:07:08] Speaker 03:
They simply wouldn't work under the rock, sand, and gravel agreement.

[00:07:11] Speaker 03:
And they'd have to wait until work was available under the construction agreement.

[00:07:16] Speaker 03:
It was just like any hiring hall in the construction industry.

[00:07:20] Speaker 03:
The job is over.

[00:07:22] Speaker 03:
You go back to the hall.

[00:07:24] Speaker 03:
And under the construction agreement, the company could call people by name so those people would get

[00:07:31] Speaker 03:
recalled under the construction agreement when work picks up, if work picks up.

[00:07:38] Speaker 03:
But there was never any intimation that people were going to be fired if they didn't accept this offer.

[00:07:47] Speaker 04:
There really wasn't much work to go around at that time, right?

[00:07:52] Speaker 04:
I'm sorry, Your Honor.

[00:07:52] Speaker 04:
There wasn't much work to go around at that time.

[00:07:54] Speaker 03:
Well, the work was shifting.

[00:07:56] Speaker 03:
The construction work was contracting, but the Roxanne Gravel work was actually expanding because CEMEX was now giving some of their material deliveries to aggregate industries.

[00:08:10] Speaker 03:
So one was contracting and one was expanding.

[00:08:15] Speaker 03:
But the real, I guess, crux of our case is that the board has taken one line of testimony out of 535 pages to base its decision on.

[00:08:28] Speaker 03:
At page 83 and 84 of the transcript, Mr. Stewart in response to a leading question says, we were going to move them, referring to the drivers.

[00:08:39] Speaker 03:
And if you take that one statement out of context, yes, there is

[00:08:45] Speaker 03:
some evidence to support the board's decision.

[00:08:49] Speaker 03:
But that one line of testimony is contrary to Mr. Stewart's prior testimony.

[00:08:56] Speaker 03:
It's contrary to his subsequent testimony.

[00:08:59] Speaker 03:
It's contrary to what the administrative law judge found.

[00:09:02] Speaker 03:
And if the substantial evidence test means anything, it means that the board can't take one line of testimony out of three days of a hearing and ignore everything else.

[00:09:13] Speaker 03:
And that is really the crux of our testimony.

[00:09:17] Speaker 06:
But is that the basis for the board finding?

[00:09:23] Speaker 06:
that this was an improper altering of the scope of bargaining units?

[00:09:32] Speaker 03:
If you read the board's decision, I can quote it for you.

[00:09:35] Speaker 03:
The board specifically quotes those four lines of testimony and says, that was why the company made the unilateral decision to transfer drivers as opposed to transferring work.

[00:09:52] Speaker 03:
and therefore it was a permissive subject of bargaining.

[00:09:56] Speaker 06:
Let me just make sure I understand your argument.

[00:09:59] Speaker 06:
You're not contesting that transferring employees or altering the scope of bargaining units is a permissive

[00:10:11] Speaker 03:
you know, if you transfer employees without bargaining with the union, that is technically, you know, a permissive subject of bargaining.

[00:10:23] Speaker 03:
You can't do it without the union's permission.

[00:10:27] Speaker 03:
But in this case, the company did not transfer drivers.

[00:10:30] Speaker 03:
They transferred some, not all of the trucks from construction to rock, sand, and gravel.

[00:10:36] Speaker 03:
They said they were going to do the work under the rock, sand, and gravel agreement.

[00:10:40] Speaker 03:
And then they wanted to bargain about moving the drivers because they knew they couldn't do it on their own.

[00:10:48] Speaker 03:
And the other thing that really undercuts the boards

[00:10:52] Speaker 03:
position that this was a permissive subject of bargaining is the fact that under the construction agreement, they had a right to bargain for a supplemental agreement because they were doing rock, sand and gravel work.

[00:11:06] Speaker 06:
But they didn't do that, right?

[00:11:08] Speaker 06:
The ALJ found that they didn't do that.

[00:11:11] Speaker 03:
Well, the ALJ found that the company told the union of their plans and then the union never requested bargaining.

[00:11:22] Speaker 03:
And had the union ever requested bargaining, the company would have bargained, just as when the union's attorney suggested coming up with some sort of a

[00:11:33] Speaker 03:
a transition rate.

[00:11:34] Speaker 03:
The company within 24 hours comes up with a transition rate, presents it to the union and says to the union, let's talk about it.

[00:11:43] Speaker 03:
And the union's response is, we've got nothing.

[00:11:45] Speaker 03:
We're not willing to talk to you about it.

[00:11:48] Speaker 03:
These were things that the company would have discussed with the union had the union ever said we want to talk.

[00:11:59] Speaker 05:
So the union was, in your view, the union was on notice that the company was going to offer its construction drivers the opportunity to, and what was the evidence that the union was on notice before the company acted?

[00:12:15] Speaker 03:
At the July 9 meeting, Mr. Stewart and other company representatives said, number one, we're going to move the material deliveries from the construction agreement to the rock, sand, and gravel agreement.

[00:12:27] Speaker 03:
Number two, we want to talk to you about moving the drivers because we know we can't do it on our own because of the dispatch procedure under the rock, sand, and gravel agreement that does not allow us to dispatch

[00:12:42] Speaker 03:
or request people by name.

[00:12:45] Speaker 03:
There was a meeting August 13th, the union said you can't do it.

[00:12:50] Speaker 03:
And so Mr. Stewart writes a letter on August 13th and he says we are going to move the deliveries.

[00:12:58] Speaker 03:
He doesn't say we're going to move the people, he's going to say we're going to move the

[00:13:01] Speaker 03:
the deliveries and then they request people under the rock sand and gravel dispatch agreement on September 24th.

[00:13:11] Speaker 03:
They would have taken them but the union said no we're not going to dispatch anyone to you.

[00:13:16] Speaker 03:
There's another meeting on September 28th.

[00:13:18] Speaker 03:
Again, the positions are locked.

[00:13:21] Speaker 03:
And the union's attorney said, well, has anybody thought about a transition rate?

[00:13:26] Speaker 03:
So the company goes back to their offices that night or the next day, comes up with a transition rate to pay people a higher rate than the rock, sand, and gravel agreement.

[00:13:36] Speaker 03:
As they transition, they send it to the union.

[00:13:40] Speaker 03:
And they say to the union, well, do you want to talk about this?

[00:13:44] Speaker 03:
And the union says, no.

[00:13:45] Speaker 03:
We've got nothing for you.

[00:13:47] Speaker 03:
We're not talking.

[00:13:48] Speaker 03:
And it was only at that point that the company then said to their drivers, well first to the union, then to the drivers, if you want to come work under the rock sand and gravel, you are welcome to do so.

[00:14:02] Speaker 03:
You can either work the rock sand and gravel rate or you can work at the transition rate.

[00:14:07] Speaker 03:
It's your decision saying to the drivers, it's a voluntary decision on your part.

[00:14:13] Speaker 03:
But once you get to the point that the board has reached the improper conclusion about transferring drivers as opposed to transferring work, it's a mandatory subject of bargaining.

[00:14:28] Speaker 03:
We don't think it was presented as a fait accompli.

[00:14:32] Speaker 03:
And there was an impasse, as found by the administrative law judge, who said it was a transfer.

[00:14:39] Speaker 03:
It was not enough fait accompli.

[00:14:41] Speaker 03:
and the parties did breach impasse.

[00:14:44] Speaker 03:
And I realize I've gone over my time, but I can address those also.

[00:14:48] Speaker 06:
I want to make sure I understand.

[00:14:50] Speaker 06:
You talk in your brief, I think it's, and it's also referred to throughout the opinions, the ALJ and the board's opinions, about transferring trucks or registering trucks that were, I guess, the SMP trucks to the

[00:15:10] Speaker 06:
SNRM, the Southern Nevada REDIMEX, I guess.

[00:15:15] Speaker 06:
What does it mean, and how practically speaking is that done?

[00:15:19] Speaker 06:
I just don't understand.

[00:15:21] Speaker 03:
I didn't see that discussed in the record.

[00:15:23] Speaker 03:
Remember, this goes back to the 2008 negotiations for the Roxanne and gravel agreement, and it was the union, not the company, that insisted.

[00:15:32] Speaker 03:
The union's position is that if you're going to move

[00:15:35] Speaker 03:
a truck from construction to the rock and sand and gravel operation, the readiness operation, you have to put a different name on the truck.

[00:15:46] Speaker 03:
You can't be moving things back and forth.

[00:15:48] Speaker 03:
And the company said, okay, we'll do that.

[00:15:52] Speaker 03:
And that's why

[00:15:54] Speaker 03:
But that's part of the reason why they delayed in moving the trucks.

[00:15:57] Speaker 06:
But the union said that because different companies had different agreements with the union, right?

[00:16:02] Speaker 06:
And the company that had the rock, sand, and gravel agreement with the union was the Southern Nevada Ready Mix, right?

[00:16:10] Speaker 06:
Or SNRM.

[00:16:12] Speaker 06:
Whatever that stands for, I can't remember.

[00:16:13] Speaker 06:
Southern Nevada Ready Mix.

[00:16:15] Speaker 06:
OK.

[00:16:16] Speaker 06:
So what does it mean to take a Southern Nevada paving truck

[00:16:23] Speaker 06:
and register it as a Southern Nevada Ready Mix truck.

[00:16:28] Speaker 03:
I don't mean to be flip about this, but it simply means taking the name off the side of the truck and putting a different name on the side of the truck.

[00:16:36] Speaker 06:
So you don't have to go

[00:16:39] Speaker 06:
to some government office, you don't have to re-register the truck with any official... I'm not aware of any such requirement.

[00:16:48] Speaker 03:
My understanding, it was sort of a cosmetic... The union wanted trucks to be dedicated to either construction or the ready mix operation, and the company said, fine, we'll comply with that request.

[00:17:07] Speaker 03:
I don't know whether you want me to address the fait accompli argument or not.

[00:17:12] Speaker 04:
Well, I do have a question about that.

[00:17:15] Speaker 04:
and also the board this as well.

[00:17:18] Speaker 04:
In the other cases, I have not looked at all of them, the other cases where the board has said that this was a fait accompli, were they simply saying, did they simply involve the employer, presumably the employer, having taken a decision by that point, or is it that the employer actually did something?

[00:17:42] Speaker 03:
In other cases where there was a movement of, where there was a change in the scope of the unit?

[00:17:49] Speaker 04:
Well, not necessarily, but whenever the board has used this fait accompli doctrine, if you will, it seems to me they may be perfectly consistent, but it doesn't jibe with what the term means.

[00:18:03] Speaker 04:
Having taken a firm position is not the same as having implemented it.

[00:18:06] Speaker 03:
Well, yeah.

[00:18:06] Speaker 03:
I think these are fact-driven decisions, because fait accompli means that you go into these negotiations and you have

[00:18:17] Speaker 03:
you're not even willing to discuss it.

[00:18:19] Speaker 04:
It's not that you've implemented or done it, you're just not willing to discuss it.

[00:18:23] Speaker 03:
That's right, and there's all this evidence that in this case the company was willing to discuss it.

[00:18:29] Speaker 04:
So it's for bulwurism, basically.

[00:18:31] Speaker 03:
Bulwurism is the term used when you just say, you walk in the first day of negotiations, this is my offer and I'm not changing it.

[00:18:42] Speaker 03:
But we've got all this evidence in this case that the company was willing to talk about it.

[00:18:47] Speaker 03:
You know, at the July 9 meeting, they were willing to talk about the transfer of drivers.

[00:18:53] Speaker 03:
There was discussion about how many trucks were going to be transferred.

[00:18:56] Speaker 03:
The union said, well, why don't you do it like CEMEX?

[00:18:59] Speaker 03:
Why don't you put all your drivers under the rock, sand, and gravel agreement?

[00:19:03] Speaker 03:
And then when they work on construction projects, you just pay them at the higher rate.

[00:19:08] Speaker 03:
And the company said, well, you know, we hadn't thought about that.

[00:19:10] Speaker 03:
Let's think about it.

[00:19:11] Speaker 03:
And then at the...

[00:19:17] Speaker 03:
I guess the other key thing that shows the company's flexibility is that when the union's attorney talks about a transition rate, they put one together.

[00:19:28] Speaker 03:
Had the union responded, they might have come up with a different proposal.

[00:19:34] Speaker 04:
The suggestion to which the employer responded with a transition proposal was that

[00:19:44] Speaker 04:
they would operate under any one work employee would operate under one contract or the other depending upon what work they were doing at the time?

[00:19:54] Speaker 03:
I think I understand the question.

[00:19:55] Speaker 03:
The union's position was that you can only do these material deliveries under the construction agreement.

[00:20:03] Speaker 03:
You can't do them under the rock, sand, and gravel agreement.

[00:20:06] Speaker 03:
Therefore, we're not going to talk to you at all about it.

[00:20:10] Speaker 04:
I thought you said the idea was suggested that an individual could work under two different contracts depending upon the work that they're doing.

[00:20:23] Speaker 03:
Yeah, the union's suggestion at the July 9 meeting was, why don't you put everybody under the rock, sand, and gravel agreement, which is the lower rate, and then when they work on construction projects, just pay them the higher rate, and you don't have to be requesting that these people be redispatched.

[00:20:43] Speaker 04:
Okay, so it was not that they would get, when they're doing construction work, it's not that they would be under the construction contract with all of its terms, just that they would get that wage rate.

[00:20:54] Speaker 03:
That's the way the company understood the proposal, and they said, well, we hadn't really thought about that.

[00:20:59] Speaker 03:
Right, okay.

[00:21:00] Speaker 03:
But, you know, on the Fait-O-Compli,

[00:21:03] Speaker 03:
The ALJ is the one who heard all of the testimony and the evidence.

[00:21:09] Speaker 03:
He sits through this and he says, well, this is not a fait accompli.

[00:21:14] Speaker 03:
The company was willing to discuss all of these issues.

[00:21:17] Speaker 03:
It was really the union that was intransigent.

[00:21:21] Speaker 06:
Was the company willing to discuss whether it was going to move trucks?

[00:21:27] Speaker 03:
As evidenced by the July 9 meeting, yes, because there was actually discussion about how many trucks would be moved from construction to rock, sand, and gravel.

[00:21:41] Speaker 03:
And it was the company's position that they were going to keep about 20 in construction and move the rest over to rocks and gravel.

[00:21:50] Speaker 06:
But there was the company said they were definitely going to move trucks, right?

[00:21:57] Speaker 03:
That's right.

[00:21:57] Speaker 03:
They said they were going to move trucks and they were going to move the work.

[00:22:01] Speaker 03:
And our position is that once you tell that to the union on July 9th, the union has an obligation to raise their hand and say, we want to bargain about this.

[00:22:13] Speaker 03:
And what the ALJ found is that the union never requested bargaining about any time.

[00:22:18] Speaker 03:
The union's only response was, you can't do it.

[00:22:22] Speaker 06:
But what if we think that the evidence in the record supports

[00:22:28] Speaker 06:
conclusion that the company had made up its mind that it was going to move the trucks.

[00:22:37] Speaker 06:
Even let's put put aside the finding about moving employees.

[00:22:43] Speaker 06:
That's not a fait accompli under this law?

[00:22:48] Speaker 03:
Number one, the evidence is that any time the union requested to bargain about something the company did, but furthermore, the company's position that this was a contractual right.

[00:23:02] Speaker 03:
The company believed it had a contractual right under the rock, sand, and gravel agreement.

[00:23:08] Speaker 03:
It believed, alternatively, that it had a right

[00:23:12] Speaker 03:
construction agreement to at least negotiate for a supplemental agreement.

[00:23:17] Speaker 03:
And it believed that it had the right under the most favored nation's provision of the rock, sand, and gravel agreement to haul materials at the same rates as its competitors.

[00:23:29] Speaker 03:
And the record is that its competitors were hauling materials under the identical rates as the rock, sand, and gravel agreement.

[00:23:38] Speaker 03:
And the board has never addressed any of those contractual issues.

[00:23:43] Speaker 03:
And part of the reason we're here is that the union, for whatever reason, we'll never know, chose not to file a grievance.

[00:23:50] Speaker 03:
And the preferred, you know,

[00:23:54] Speaker 03:
The arbiter of what a collective bargaining agreement means is an arbitrator, and it was really the union's decision to present this case to the board as a contractual violation masquerading as an unfair labor practice charge.

[00:24:12] Speaker 05:
Do these two agreements, the construction agreement and the ready mix agreement, contain a definition of the bargaining unit?

[00:24:25] Speaker 03:
Well, I think the bargaining unit is really defined by job classifications.

[00:24:32] Speaker 03:
And part of the company's position is that there is a classification in the rock, sand, and gravel agreement for people who do the material deliveries.

[00:24:42] Speaker 05:
And there's such a classification in the construction agreement too?

[00:24:47] Speaker 03:
Yeah, there's also a classification in the construction agreement.

[00:24:51] Speaker 05:
Is there any difference between the definition of the bargaining unit between the two agreements?

[00:24:57] Speaker 03:
No, I think most construction agreements are actually defined by the scope of work covered.

[00:25:05] Speaker 03:
So the construction agreement is going to have your typical definition of construction industry work.

[00:25:13] Speaker 03:
you know, done at the site of, you know, construction alteration maintenance repair at the site of construction and the rock sand and gravel agreement not being a construction agreement.

[00:25:23] Speaker 05:
If a driver were moving gravel

[00:25:28] Speaker 05:
in the, on the work site, the construction work site, would that be covered by the ready mix agreement or would it be covered?

[00:25:36] Speaker 03:
Well, now that's clearly construction work and, you know, the record is that aggregate industries continues to use the construction agreement for that type of onsite work and pays construction rates.

[00:25:49] Speaker 05:
But that would be the only thing left of the construction agreement, right?

[00:25:53] Speaker 03:
Well, that's a lot of work, because any time they're working at a construction site, it would be water trucks at the construction site.

[00:26:03] Speaker 05:
Yeah, but delivering to the construction site.

[00:26:07] Speaker 05:
formerly part of the construction agreement became part of the ready mix agreement?

[00:26:13] Speaker 03:
Yes, just as aggregate industries competitors used their rock, sand, and gravel agreements to make deliveries to the construction site.

[00:26:24] Speaker 03:
And the whole problem was that aggregate industries was at a competitive disadvantage as long as its competitors

[00:26:34] Speaker 03:
used the rock sand and gravel agreement for material deliveries and the union was trying to force it to pay the higher construction rates for the identical work.

[00:26:45] Speaker 03:
And I think the record is undisputed that aggregates competitors were doing the identical work under the rock sand and gravel agreement.

[00:26:55] Speaker 05:
And this is a multi-employer agreement?

[00:26:59] Speaker 03:
The construction agreement definitely is a multi-employer agreement.

[00:27:03] Speaker 03:
The rock, sand, and gravel agreements are, I believe, individual agreements, although the economic terms were identical.

[00:27:13] Speaker 04:
Does the record reveal how it is that the other two firms managed to move this work?

[00:27:23] Speaker 03:
I think the only thing the record reflects is that the other two competitors did do the material deliveries to the construction sites under the rock sand and gravel agreement at the wage rates that aggregate industries wish to utilize.

[00:27:43] Speaker 04:
So as far as we know, they may always have done it that way.

[00:27:48] Speaker 03:
I think they probably did because the competitors were not also in the construction field, so they didn't have the issue of having a construction agreement and a rock-sand-gravel agreement.

[00:28:04] Speaker 03:
And this is the age-old problem of people going back and forth between construction and non-construction.

[00:28:12] Speaker 03:
It's always cleaner if you do one but not the other.

[00:28:15] Speaker 03:
It's always messy when you move back and forth.

[00:28:19] Speaker 03:
Is road building construction?

[00:28:21] Speaker 03:
Yeah, that would be considered construction.

[00:28:23] Speaker 05:
What is sand and gravel used for other than construction?

[00:28:31] Speaker 03:
Sand and gravel is used for construction, but those would be considered supply items.

[00:28:37] Speaker 03:
Under the NLRB's definition of what is construction work, the delivery of supply items to the job site is not construction work.

[00:28:46] Speaker 03:
On the other hand, if you deliver something to the construction site and then remain at the construction site,

[00:28:53] Speaker 03:
to help lay it down, that becomes construction work.

[00:28:56] Speaker 03:
But if you drive rock sand and gravel to the construction site, you drop it and leave, that's considered a supply function, not part of the construction process.

[00:29:09] Speaker 04:
I think you said a few minutes ago that the bargain unit is defined by the list of job classifications in the collective bargaining agreement.

[00:29:17] Speaker 04:
Is that correct?

[00:29:18] Speaker 03:
Yeah, particularly the rock, sand, and gravel agreement, which is a non-construction agreement.

[00:29:24] Speaker 04:
So were these units ever certified by the board, or were they just bargained?

[00:29:30] Speaker 03:
Well, I think there's kind of a long, tortuous history of how the certification of the rock, sand, and gravel agreement occurred.

[00:29:39] Speaker 03:
It occurred before aggregate industries took over and before they decided to expand their rock, sand, and gravel operation.

[00:29:50] Speaker 04:
But I think just to sum up.

[00:29:52] Speaker 04:
I'm not sure that maybe you don't know, but I'm asking whether this was allocation of job classifications was purely the result of bargaining or whether there had been an election and a unit determination by the board at some time in the past.

[00:30:07] Speaker 03:
It's a combination.

[00:30:08] Speaker 03:
Initially, there was a certification of just a small ready mix unit before aggregate industries took over.

[00:30:16] Speaker 03:
That operation was shut down.

[00:30:18] Speaker 03:
the operation was essentially dormant, but then the rock sand and gravel agreement was eventually negotiated at a time where no work was being performed, but aggregate industries was planning to, the testimony and the record is, become a player in the aggregate industry, and after the agreement was negotiated in 2008, that's when

[00:30:44] Speaker 03:
aggregate industries opens up the various rock, sand, and gravel quarries.

[00:30:52] Speaker 03:
But to sum up our position, this was not a permissive subject of bargaining because it was a transfer of work and not a transfer of drivers.

[00:31:03] Speaker 03:
But once you get to the issue of it being a mandatory subject of bargaining, the company did bargain in good faith.

[00:31:09] Speaker 03:
The company did exhibit flexibility

[00:31:12] Speaker 03:
And as found by the administrative law judge, there was an impasse and certainly an excellent indication that the parties were impasse is that the union was totally unwilling to negotiate about a transition rate and the union went on strike.

[00:31:29] Speaker 03:
All of those are indications that the parties were at impasse.

[00:31:33] Speaker 03:
as found by the administrative law judge and there was no good reason for the board to overturn the findings and indeed the credibility findings of the administrative law judge in this case.

[00:31:47] Speaker 04:
The unions having gone on strike doesn't reflect the issue of whether it was an impasse or they're protesting the unilateral activity.

[00:31:57] Speaker 03:
Well, I think it is an indication that the parties have reached the position where their negotiating positions are not moving.

[00:32:06] Speaker 03:
The company had tried various things.

[00:32:10] Speaker 03:
It had tried to talk to the union about moving the drivers.

[00:32:13] Speaker 04:
It had requested... I'm not saying that, but the picketing of the strike could reflect the refusal to bargain as opposed to an impasse.

[00:32:22] Speaker 03:
I think the case law is that a strike is an indication of an impasse.

[00:32:29] Speaker 03:
It's not a conclusive indication, but I think coupled with the other evidence in this case, it is evidence that the parties were at impasse as of October 11th or whatever the day is, as found by the ALJ.

[00:32:59] Speaker 00:
Good morning.

[00:32:59] Speaker 00:
May I please the court?

[00:33:00] Speaker 00:
Nicole Lancha for the National Labor Relations Board.

[00:33:03] Speaker 00:
We're seeking enforcement of the board's order finding that the company violated section 85 in one of the act by refusing to bargain with the union as the collective bargaining representative of two different sets of drivers, the offset material haul drivers and the mechanical super truck drivers.

[00:33:17] Speaker 00:
Now, focusing on the offset material haul drivers, I just want to address a few statements made by my opposing counsel.

[00:33:26] Speaker 00:
First of all,

[00:33:28] Speaker 00:
He stated that the board's fait accompli finding, or unlawful transfer of unit work, was the linchpin finding of the board's decision and order, and that is simply not correct.

[00:33:38] Speaker 00:
The board found that the company's movement of about 60 material haul drivers, about the whole unit, from the construction agreement and the construction unit to coverage under the ready mix agreement and ready mix unit,

[00:33:51] Speaker 00:
was an unlawful change in the unit's scope, a permissive subject of bargaining over which the union was not required to bargain and which the company could not unilaterally implement without the union's consent.

[00:34:03] Speaker 00:
Again, and also in that realm, counsel makes frequent reference to the administrative law judge's finding and the alleged deference that he gets.

[00:34:15] Speaker 00:
The board gives deference to the administrative law judge as to credibility resolutions because the judge is the one who has heard and saw the witnesses testify.

[00:34:24] Speaker 00:
However, the board considers the evidence, the briefs, the exceptions, the administrative law judge's recommended decision and order anew.

[00:34:33] Speaker 00:
It is not required to give deference to the factual findings of the administrative law judge.

[00:34:37] Speaker 00:
And here, based on the board's review of the record evidence,

[00:34:41] Speaker 00:
substantial evidence supports its finding that it was an unlawful change in unit scope.

[00:34:45] Speaker 00:
The company did move drivers.

[00:34:47] Speaker 00:
It's not just about the trucks.

[00:34:48] Speaker 00:
They moved the drivers, the material haul drivers, from the construction unit and covered under the construction agreement to the ready mix unit.

[00:34:56] Speaker 00:
As to the borrower's alternate finding that the company's actions could have constituted an unlawful transfer of unit work, yes, that is a mandatory subject of bargaining over which the company is required to notify

[00:35:10] Speaker 00:
the union of and give them an opportunity to bargain.

[00:35:14] Speaker 00:
But as the board found here, the company presented since day one on July 9th the union with the Fed accompli.

[00:35:19] Speaker 00:
And notice of a Fed accompli is simply not the sort of timely notice on which waiver or impasse defenses are predicated.

[00:35:28] Speaker 00:
Here, since July 9th, and company counsel acknowledges this, Sean Stewart

[00:35:34] Speaker 00:
conceded and told the judge at the hearing that they were going to move the drivers.

[00:35:40] Speaker 00:
They were not considering moving the material haulers, but they were going to move them.

[00:35:44] Speaker 00:
And this is on footnote nine of the board's decision where the transcript is recounted.

[00:35:49] Speaker 06:
You're going to move drivers?

[00:35:50] Speaker 06:
You're going to move trucks?

[00:35:51] Speaker 00:
It says, based on the testimony, which is available for 9 of the board's decision, that we were going to move them, referring to material haulers in the question.

[00:36:03] Speaker 00:
And the main purpose of our meeting was to discuss whether we could keep our own drivers.

[00:36:08] Speaker 05:
But they hadn't.

[00:36:09] Speaker 05:
They hadn't done it at that time, right?

[00:36:11] Speaker 00:
No, not at that point, Your Honor.

[00:36:13] Speaker 05:
So that's a bargaining position.

[00:36:15] Speaker 00:
Well, Your Honor, if that was the only meeting that might be a possibility, but considering the record evidence, which the board did consider in deciding that a federal company had been presented, on August 13th, Stewart sent a letter to the union representative day at that time saying, quote unquote, material deliveries will be performed by the construction unit employees under the ready mix agreement.

[00:36:39] Speaker 00:
And as late as September 27th, Stewart all sent another letter to the union saying now that the ReadyMix agreement gave the company the quote unquote right to use off-site material haul drivers under the ReadyMix agreement.

[00:36:52] Speaker 00:
And that same day or the next day, excuse me?

[00:36:55] Speaker 05:
Why aren't all those representations just simply bargaining positions?

[00:36:59] Speaker 05:
That happens all the time.

[00:37:01] Speaker 00:
Well, Your Honor, it's important to remember that a federal company is not about what is being implemented per se.

[00:37:08] Speaker 00:
demonstration of a fixed intent to implement a proposal.

[00:37:13] Speaker 00:
That the decision, or the proposal in this case, a movement of drivers in the work to coverage under a different agreement, was final and non-negotiable.

[00:37:21] Speaker 00:
And the language of not only Stewart's testimony, but the letters that were sent to the union demonstrate that fixed intent, that they were going to move the drivers.

[00:37:29] Speaker 00:
The material deliveries will be performed by construction employees under the Ready Mix Agreement.

[00:37:33] Speaker 00:
We have a right, management's right,

[00:37:35] Speaker 05:
And the union was just as firm saying that you don't.

[00:37:43] Speaker 05:
And we're not going to, you know, agree with you at all.

[00:37:47] Speaker 05:
Why isn't that an impetus?

[00:37:48] Speaker 00:
Well, once undersettled board and court law of the circuit, once the union is presented with the fait accompli, no impasse is possible because the union never had meaningful notice or an opportunity to bargain.

[00:38:02] Speaker 00:
Since July 9th and continuing up until the end of September, the company demonstrated a fixed intent to transfer the drivers and network.

[00:38:09] Speaker 00:
And therefore, the union could not have bargained to impasse.

[00:38:12] Speaker 05:
July 9th to the end of September is not sufficient notice?

[00:38:16] Speaker 00:
Again, notice of a Fed accompli isn't the type of notice on which an impasse or waiver defense is predicated.

[00:38:23] Speaker 00:
Also, at the end of September, September 30th, when Stewart and Day were discussing potential transition wage rates, they weren't discussing whether or not they can move the drivers at any point.

[00:38:34] Speaker 00:
The company wasn't attempting to bargain over whether drivers could be moved.

[00:38:38] Speaker 00:
It had already been decided, and now they were just trying to discuss

[00:38:41] Speaker 00:
what transition rates we would use or the company would use to move the drivers from the $30 an hour about construction agreement wages to about $23 an hour wages under the ready mix agreement.

[00:38:52] Speaker 00:
So that wasn't even bargaining over the movement of drivers at that point.

[00:38:55] Speaker 06:
It had been decided.

[00:38:58] Speaker 06:
You're collapsing all of this because they initially the other testimony, not just the one line that the board sites in the footnote shows that Mr Stewart was talking about moving trucks.

[00:39:12] Speaker 06:
And then he asked for the union to provide drivers with his with its dispatch request.

[00:39:19] Speaker 06:
And it's only after the union doesn't provide any drivers and says that they're not going to that he presents this transition rate proposal, et cetera.

[00:39:35] Speaker 06:
So he says that this happened kind of in two stages, and you're presenting it as one stage.

[00:39:42] Speaker 06:
At least, I think that's what they're recommending.

[00:39:44] Speaker 00:
Well, if I understand your honor's question correctly,

[00:39:47] Speaker 00:
I think it's the testimony that council keeps referring to about going to move the drivers.

[00:39:53] Speaker 00:
That goes to the board's finding of and the alternate finding of the transfer of unit work in a federal company.

[00:40:00] Speaker 00:
That is not any basis for the board's finding of an unlawful change in unit scope.

[00:40:06] Speaker 00:
So in terms of the July 9th meeting, the August 13th letters, the September 20th, 27th letters, the transition wage rates, that I think would fall under the board's finding as to the unlawful transfer of unit work.

[00:40:21] Speaker 00:
But again, because

[00:40:23] Speaker 00:
Either, let's say we view it as an unlawful change in unit scope.

[00:40:27] Speaker 00:
As a permissive subject of bargaining, the union was not required to bargain over it, and the company could not implement it without the union's consent.

[00:40:34] Speaker 00:
As a transfer of unit work, however, the board found, and substantial evidence supports this finding, not just based on one line of testimony, but on all of the testimony, and on the exhibits, the letters,

[00:40:45] Speaker 00:
with the language demonstrating a fixed intent, that the company unlawfully presented its proposal to transfer the drivers and the work to the readiness agreement as a fait accompli.

[00:40:56] Speaker 00:
So the union, there's no indication that the union was required to fill the dispatch requests under either characterization.

[00:41:04] Speaker 00:
Either both characterizations

[00:41:06] Speaker 00:
would represent an unlawful unilateral change in terms and conditions of employment.

[00:41:10] Speaker 06:
So you're saying that even if we find that it's a transfer of unit work,

[00:41:16] Speaker 06:
which is a mandatory subject of bargaining.

[00:41:22] Speaker 06:
If we also agree with the finding that it was presented as a fait accompli, then the employer loses because waiver and impasse aren't defenses.

[00:41:35] Speaker 00:
Yes, you are.

[00:41:37] Speaker 00:
That would be correct because

[00:41:40] Speaker 00:
If a party is presented with a fait accompli under this court's law of regal cinemas,

[00:41:47] Speaker 00:
There is no notice or meaningful opportunity to bargain.

[00:41:51] Speaker 00:
And waiver and impasse are impossible.

[00:41:53] Speaker 00:
But I think it's also important just to understand the difference.

[00:41:58] Speaker 00:
So a change in unit scope would be the performance by the same employees of the same work, same equipment, same locations, but now they're members of a different bargaining unit, which is what the board found happened here.

[00:42:12] Speaker 00:
About 59 drivers.

[00:42:14] Speaker 00:
performs the same material hall work using the same trucks at the same locations, phone, car, and construction sites.

[00:42:20] Speaker 00:
But now they were covered under the ReadyMix agreement, and that diluted the strength and the size of the construction unit, which only had about 60 employees to begin with, and now enlarged the ReadyMix unit.

[00:42:34] Speaker 04:
What is the strength of the remaining unit?

[00:42:39] Speaker 04:
Why is that relevant to the question of what happened?

[00:42:42] Speaker 00:
Well, it's relevant to understanding that the company's movement here, and I guess the significance of the unlawfulness of its actions, severed the link between a recognizable group of employees, the construction unit employees, whom the construction agreement defines with respect to specific job classifications, severed the link between them and the union that represents them.

[00:43:04] Speaker 00:
And now they no longer bargain with other employees in the unit to which they belonged.

[00:43:08] Speaker 00:
And now they're part of a completely different unit with different terms and conditions of employment.

[00:43:12] Speaker 04:
Well then, in addition to all that, the board said, and you reiterated, that that left the local that lost the workers in a less strong position vis-a-vis the employer.

[00:43:25] Speaker 00:
Well, the board found that it did dilute the bargaining strength of the construction unit and enlarged the ready mix unit.

[00:43:32] Speaker 00:
But what I think is important to remember here is that the units are defined, and the construction unit was defined with references to specific jobs that were performed, the specific positions, the offsite material haul driver positions.

[00:43:46] Speaker 00:
By removing those positions from the unit,

[00:43:48] Speaker 00:
And those drivers performing the same work with the same equipment for the ready mix unit, that constitutes an unlawful change in unit scope.

[00:43:56] Speaker 00:
An unlawful transfer of unit work would be the performance or transfer of work from unit employees, your construction employees, to non-unit employees.

[00:44:07] Speaker 00:
And as members of a ready-mix unit, they would not be unit employees.

[00:44:11] Speaker 00:
So I think that distinction is important to understanding the basis for the board's primary and alternate finding.

[00:44:17] Speaker 05:
If a truck delivered gravel to a construction site under the ready-mix agreement, is that within the scope of the bargaining unit?

[00:44:27] Speaker 00:
Well, it depends, I think, on what bargaining unit you would be referring to.

[00:44:31] Speaker 00:
I'm not sure I understand your Honor's question.

[00:44:34] Speaker 00:
The employees who are covered by the writing mix agreement can certainly perform work under the writing mix agreement.

[00:44:39] Speaker 05:
Is there a definition of what the agreement includes in terms of the work?

[00:44:47] Speaker 05:
involved?

[00:44:48] Speaker 05:
The Redimix agreement?

[00:44:50] Speaker 00:
Yeah, well, both agreements.

[00:44:51] Speaker 00:
But the Redimix agreement also contains driver classifications, like S&G bulk or sand and gravel powder, or these different classifications.

[00:45:01] Speaker 00:
And within the agreement, they define what types of trucks are used and at what locations.

[00:45:05] Speaker 05:
So we have two agreements, and the definition of the bargaining units in each one overlap.

[00:45:12] Speaker 00:
No, they do not, Your Honor.

[00:45:14] Speaker 00:
I believe that that was a misstatement on counsel's part here.

[00:45:18] Speaker 00:
The construction agreement has driver classifications, including off-site material haul drivers, mechanical super-truck driver.

[00:45:25] Speaker 00:
The classifications are completely different.

[00:45:28] Speaker 00:
The classifications such as transport driver bulk or transport driver S&G only appear in the ready-mix agreement.

[00:45:34] Speaker 00:
They do not appear in the construction agreement.

[00:45:36] Speaker 05:
So again, the... I thought there were other companies that were doing essentially the same thing as this particular employer was doing under the construction agreement, yet they were doing it under a ready-mix agreement.

[00:45:52] Speaker 05:
Isn't that the evidence?

[00:45:54] Speaker 05:
I don't know.

[00:45:54] Speaker 00:
No, there are other ready-mix companies that had ready-mix agreements, but I think it would be, I don't think we can conflate the construction agreement and the ready-mix agreement.

[00:46:06] Speaker 00:
Here, the construction agreement was something that Southern Nevada Paving S&P and Freiner Construction, as members of a multi-employer association, were signatories to.

[00:46:20] Speaker 00:
SNRM, Southern robotic ready mix, was not a signatory to that agreement.

[00:46:25] Speaker 00:
It had a separate agreement, which is what we refer to as the ready mix agreement.

[00:46:29] Speaker 00:
And those other companies, frankly, in those agreements have no bearing on what the construction agreement or the construction agreement and its classifications of employees.

[00:46:40] Speaker 00:
In that regard,

[00:46:42] Speaker 00:
The company claims that contractual provisions in, excuse me, I apologize, I know I'm over my time.

[00:46:50] Speaker 06:
You can finish your point.

[00:46:51] Speaker 00:
Thank you.

[00:46:53] Speaker 00:
That certain contractual provisions in both the construction agreement and the writing mix agreement support its actions here, but that's simply not the case.

[00:47:01] Speaker 00:
This is not a matter of contract interpretation.

[00:47:04] Speaker 00:
It references Article 43, which is in the construction agreement, allowing the company to negotiate for supplemental agreements.

[00:47:13] Speaker 00:
However, as I just alluded to, neither Southern Nevada ReadyMix nor Aggregate were signatories to that agreement.

[00:47:20] Speaker 00:
So it could not use that agreement as a basis for its actions here.

[00:47:26] Speaker 00:
Furthermore,

[00:47:27] Speaker 00:
They reference the most favored nations clause allowing, you know, if the union enters the collective bargaining agreement with another ReadyMix employer and there's more favorable terms in that agreement, then the company can adopt the more favorable terms of the other ReadyMix agreement.

[00:47:41] Speaker 00:
But here, again, what's relevant and what's telling are the facts.

[00:47:46] Speaker 00:
the record evidence.

[00:47:47] Speaker 00:
The company didn't even do what it claims that that clause would allow it to do.

[00:47:51] Speaker 00:
It didn't keep the construction unit intact and then apply the more favorable terms of only the more favorable terms of the ReadyMix agreement to the material haul drivers.

[00:48:00] Speaker 00:
It actually moved those drivers out of the construction unit and into a ReadyMix unit with an entirely different set of terms and conditions of employment.

[00:48:09] Speaker 00:
And lastly, before I conclude, I just wanted to

[00:48:13] Speaker 00:
say with respect to the denial of employment opportunities finding that the company waived that issue before the court by failing to raise it in its opening brief.

[00:48:23] Speaker 00:
Page 17 of its brief actually admits the underlying facts of that violation.

[00:48:27] Speaker 00:
And it references pages 26 to 36 in its reply brief as evidence that it did not waive the issue.

[00:48:33] Speaker 00:
But those pages do not demonstrate any arguments specific or general with respect to that violation.

[00:48:39] Speaker 04:
This is the two employees.

[00:48:43] Speaker 00:
This is when the company distributed the forms to the drivers and actually required them to accept them as a condition of continued employment.

[00:48:54] Speaker 00:
Either you accept these terms and you work under the ready mix agreement,

[00:48:57] Speaker 00:
Or you're not working.

[00:48:58] Speaker 00:
That can hardly be considered voluntary.

[00:49:00] Speaker 04:
Is it accurate to say that the employer here could have simply discharged the workers, the 60 or so, the drivers, and asked the union to send new people for the laborers' contract?

[00:49:19] Speaker 00:
I'm not entirely sure.

[00:49:21] Speaker 00:
It seems to me, based on the record evidence, that they would have had to have been redispatched to the company under SNRM.

[00:49:29] Speaker 00:
Because again, I mean, though it's aggregate industries, and there was a merger, the companies still operated under their fictitious trade names.

[00:49:35] Speaker 00:
So you had S&P and Fraynor doing the construction agreement work, and SNRM doing the ready mix work.

[00:49:43] Speaker 00:
So either as that was discussed during the 2008 negotiations, transfer,

[00:49:49] Speaker 00:
Change the names on your trucks, which is not just an aesthetic change.

[00:49:53] Speaker 00:
It would be an agreement that this work is now going to be performed by SNRM and using SNRM trucks.

[00:50:01] Speaker 00:
We're not transferring trucks to you, which is what was discussed at the time.

[00:50:05] Speaker 04:
We're not transferring the trucks to you?

[00:50:07] Speaker 00:
No, at that time, the union said that they would have had to replace the SNRM on the door with, excuse me, they would have had to replace SMP with SNRM on the door, and Stewart credibly testified that that was something that discussed, and quote unquote, it wasn't something that the company was willing to do at that point.

[00:50:26] Speaker 04:
Just change the paint.

[00:50:28] Speaker 00:
transferring trucks or assets.

[00:50:30] Speaker 04:
Ultimately, that was never... The ownership would still remain with the first corporation.

[00:50:33] Speaker 00:
Right.

[00:50:34] Speaker 00:
And what was decided, though, there was a memorandum of understanding where the company and the union agreed to transfer nine offsite material haul drivers to coverage under the ready mix unit.

[00:50:44] Speaker 00:
And that was agreed upon and consented to by the union in 2008.

[00:50:49] Speaker 00:
And that was not ever presented here.

[00:50:51] Speaker 00:
There was no memorandum of understanding or anything in writing.

[00:50:54] Speaker 00:
And as Vice President Stewart conceded, the only thing in writing was, in his opinion, the contracts, which gave it the alleged right to do what it did, which the board maintains that did not give it that right.

[00:51:06] Speaker 00:
I know my time is up, so I just wanted to briefly ask the court to find that substantial evidence supports the eight violations of Section 8.8.5 and one found by the board in this case that the company unlawfully failed to refuse to bargain with the union as the collective bargaining representative of the offsite material hall drivers and the mechanical sweeper truck drivers and to enforce the board's order in full.

[00:51:30] Speaker 06:
Thank you.

[00:51:34] Speaker 06:
All right, Mr. Hill, you're out of time, but we'll give you two minutes for rebuttal.

[00:51:39] Speaker 03:
I want to make just a couple of quick points.

[00:51:42] Speaker 03:
In the joint appendix at page 385, these are the job classifications in the rock, sand, and gravel agreement.

[00:51:50] Speaker 03:
There is a classification for a transport driver S&G.

[00:51:54] Speaker 03:
That's a transport driver for sand and gravel.

[00:51:57] Speaker 03:
That is the job classification that aggregate industries identified in the rock sand and gravel agreement and why they believe they had a contractual right to do material haul deliveries under the rock sand and gravel agreement.

[00:52:13] Speaker 03:
That is the identical rate that CEMEX and its other competitor was using to perform the identical work

[00:52:20] Speaker 03:
It is incorrect to say that there is no job classification in the Roxanne Gravel Agreement that covers the work.

[00:52:29] Speaker 03:
The other thing I would specifically like to direct the court's attention to is footnote 34 of the administrative law judge's decision.

[00:52:39] Speaker 03:
This is what the administrative law judge wrote.

[00:52:42] Speaker 03:
Stuart denied ever stating today the respondent would just transfer the material haul drivers

[00:52:50] Speaker 03:
from one bargaining unit to the other, thereby bypassing the hiring all procedure of the collective bargaining agreements.

[00:52:58] Speaker 03:
This was a credibility determination by the administrative law judge that Mr. Stewart never said he was going to unilaterally transfer the drivers.

[00:53:08] Speaker 03:
And by writing its decision the way it did, the board has rejected the credibility determination of the administrative law judge

[00:53:17] Speaker 03:
And we believe that it's not committed by the court president.

[00:53:23] Speaker 06:
But that's in a footnote.

[00:53:28] Speaker 06:
The court didn't, the board didn't, I'm sorry, the ALJ didn't say one way or the other whether it was crediting that particular statement, what's in the text.

[00:53:42] Speaker 06:
refers to the letter that Stuart drafted around that time, which said that material hauls for the company will be performed by teams and employees under the rules and regulation of the ready mix agreement.

[00:53:59] Speaker 03:
Well, but Teamster employees includes everybody.

[00:54:03] Speaker 03:
That includes construction drivers as well as rock, sand, and gravel drivers because these are all members of the same unit.

[00:54:10] Speaker 03:
So that statement doesn't indicate that he's going to take the construction drivers to the rock, sand, and gravel agreement.

[00:54:23] Speaker 03:
But I think more generally, what the administrative law judge said is that with regard to the events of 2010, I think that Sean Stewart was credible, and I believe the way that he described the events of 2010.

[00:54:37] Speaker 03:
And he specifically says, this is really how I am basing my decision.

[00:54:43] Speaker 03:
And that includes note 34, in my view.

[00:54:48] Speaker 06:
All right, thank you.

[00:54:49] Speaker 06:
We'll take the matter under advisement.

[00:54:50] Speaker 03:
Thank you.