Hunt Brothers Construction, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1975

219 N.L.R.B. 177 (N.L.R.B. 1975)

HUNT BROTHERS CONSTRUCTION, INC. 177
Hunt Brothers Construction, Inc. and International
Union of Operating Engineers , Local No. 370,
AFL-CIO. Case 19-CA-6411
July 17, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On July 16, 1974, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
substitute our Order for the one recommended by the
Administrative Law Judge.'
Contrary to the conclusions of our dissenting col-
league , the so-called "residual" employees are not
some separate and distinct grouping of employees
which the Unions must establish they have the right
to represent. These employees are included in and a
part of the unit certified by us on August 24, 1972,
following a consent election voluntarily agreed to by
the parties. By virtue of this certification, the Unions
were and are entitled to represent all employees cov-
ered by the certification and it is undisputed that the
residual employees were a part of the certified unit.
Our dissenting colleague argues that the Unions'
action in voluntarily agreeing to a collective-bargain-
ing agreement covering only a portion of the certified
unit is tantamount to a waiver of interest in the re-
mainder. While we do not dispute the fact that a
union can waive rights it has acquired under a certifi-
cation, such waivers will be found only where they
are expressed in clear and unmistakable terms. In our
i The Administrative Law Judge 's recommended Order fails to attach
proper significance to the fact that the parties have entered into a valid and
existing collective -bargaining agreement covering some but not all of the
employees in the certified appropriate unit. By recommending that Respon-
dent now be affirmatively required to bargain with the certified bargaining
representative for all the employees in the appropriate unit, the Administra-
tive Law Judge has indirectly and no doubt unintentionally abrogated the
existing agreement between the parties , since his recommended Order, by its
terms, requires that bargaining begin anew for both contractually covered
employees and those unit employees who are not so covered . While we have
found that the certified unit is the appropriate unit for purposes of collective
bargaining , we recognize that while the existing collective -bargaining agree-
ment remains in effect Respondent can only properly be required to bargain
with the Unions over that portion of the certified unit which is not covered
by the existing agreement . Our Order will so provide.
opinion, the record is totally devoid of any evidence
which supports a conclusion that the Unions intend-
ed to or did waive their interest in the residual em-
ployees.
The certified unit covered all of Respondent's em-
ployees at its Coeur d'Alene, Idaho, operations, ex-
cluding all office clerical employees, carpenters,
guards, and supervisors. When bargaining com-
menced, the Unions sought to represent and bargain
for all of the employees covered by the certification.
However, Respondent indicated that there would be
some difficulty ascertaining which employees were
presently employed at its Coeur d'Alene location in
view of its practice of transferring employees from
one jobsite to another. When no agreement was
forthcoming on the identity of those employees pres-
ently working out of the Coeur d'Alene location, the
Unions proposed that, since Respondent admitted
that the batch plant employees were covered by the
certification, a collective-bargaining agreement could
be negotiated covering these employees. It is at this
juncture that a factual issue may be said to arise as to
whether the Unions indicated that they were willing
to forego bargaining as to any employees other than
those working at the batch plant or merely post-
poned bargaining as to these other employees until a
later date. The issue is resolved, as far as we can see,
by the Administrative Law Judge's crediting of
Union Representative Hanson's testimony that he
never agreed to limit representation rights to the
batch plant employees and that he continued to dis-
cuss with Respondent the Unions' representation
claims as to the residual employees. In connection
with this credibility resolution, we think it significant
to note, as did the Administrative Law Judge, that
there is absolutely no testimony upon which to estab-
lish an intent on the part of the Unions to waive their
representation rights as to the residual employees.
Nor do we see any inherent vice in agreement to
separate contracts for separate groups of employees,
so as to prohibit per se other contracts for different
groups in the unit. Such separate provisions are often
made, though less often as wholly separate contracts.
Our certifications are a conclusive determination
of the bargaining unit and may be varied only by us
or by mutual agreement of the parties? In the ab-
sence here of any mutual agreement by the parties to
vary the certified unit or indication by the Unions
that they were waiving their interest in certain of the
unit employees, the certification remains intact and
Respondent's admitted refusal to bargain with re-
spect to certain employees covered by the certifica-
tion constitutes a violation of Section 8(a)(5) of the
Act.
2Jay Kay Metal Specialties Corp., 173 NLRB 342 (1968).
219 NLRB No. 34
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hunt Brothers Construction, Inc., Coeur d'Alene,
Idaho, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with International Union of
Operating Engineers, Local No. 370, AFL-CIO; La-
borers International Union of North America, Local
No. 238, AFL-CIO; and Teamsters Local Union No.
690, affiliated with Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, as the exclusive (joint) bargaining rep-
resentative of its employees in the following appro-
priate unit:
All Employees employed by Hunt Brothers
Construction, Inc., at its Coeur d'Alene, Idaho,
operations, excluding all office clerical employ-
ees, carpenters, guards, and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
Unions as the exclusive (joint) representative of all
employees not covered by the collective-bargaining
agreement entered into with the joint exclusive bar-
gaining representative on March 16, 1973, in the bar-
gaining unit described below, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
The bargaining unit is:
All employees employed by Hunt Brothers
Construction, Inc., at its Coeur d'Alene, Idaho,
operations, excluding all office clerical employ-
ees, carpenters, guards, and supervisors as de-
fined in the Act.
(b) Post at its principal place of business in Coeur
d'Alene, Idaho, copies of the attached notice marked
"Appendix"' Copies of said notice on forms provid-
ed by the Regional Director for Region 19, after
l In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER KENNEDY, dissenting:
My colleagues find in this case that Respondent
has refused to bargain with the joint representative of
its employees in violation of Section 8(a)(5) of the
Act. I disagree . Having yielded to the bargaining
agent's demand that a contract be signed covering a
unit smaller than the certified unit, Respondent is
not under a duty to bargain for the excluded employ-
ees absent a showing that (1) the excluded employees
constitute an appropriate unit and (2) the Unions
have majority support therein. There being no such
showing on this record, the complaint should be dis-
missed.
Respondent is engaged in the construction busi-
ness principally in Coeur d'Alene, Idaho, and does
business in other places in and around Coeur d'Al-
ene. Respondent's most important business is operat-
ing a batch plant for the production of ready-mix
concrete, but it is also engaged in residential and
commercial construction, highway construction, land
clearing and development, and related business. Re-
spondent has a total of about 29 employees, of which
about 16 are employed at the batch plant.
On August 24, 1972, the Board certified the joint
representative 4 as the exclusive bargaining represen-
tative of a unit comprised of all employees employed
by Respondent at its Idaho operations, excluding all
office clerical employees, carpenters, guards, and su-
pervisors. Thereafter, Respondent and the joint rep-
resentative entered into negotiations for a collective-
bargaining agreement. During those negotiations, the
bargaining agent insisted that Respondent negotiate
a contract to cover only the cement batch plant em-
ployees. Respondent's secretary-treasurer and office
manager, Dodge, testified that at a bargaining ses-
sion in January 1973 one of the union representatives
stated, "We are not interested in your housing. We
don't want anything to do with these other things.
That will have to wait for some other time."
Respondent's vice president, James W. Hunt, stated
4 The joint representative consisted of the Teamsters Local No. 690, Op-
erating Engineers Local No 370, and Laborers Local No. 328.
HUNT BROTHERS CONSTRUCTION, INC. 179
that at the same bargaining session he remembered
that his brother Paul had mentioned the
Respondent's concern about all the employees being
included in one contract, and that the Unions' re-
sponse was that they were interested in all of the
employees, but, because they were receiving pressure
from the other concrete premix outfits, they were
mainly interested in the concrete outfit.
On the other side of the table for these negotia-
tions sat Robert E. Kivett, the president and business
agent of one of the three Unions comprising the joint
representative. Mr. Kivett acted as chief negotiator
for the joint bargaining representative. Mr. Kivett
testified that during the negotiations one of the
Unions' concerns was the intermingling and transfer
of employees from one segment of that operation to
another. On March 16, 1973, Respondent and the
Unions entered into a collective-bargaining agree-
ment covering the batch plant operations only. The
contract states in article I:
UNION RECOGNITION: The employer agrees to rec-
ognize the Unions as the sole collective-bargain-
ing agent for all of its employees at a Coeur
d'Alene, Idaho, operations engaged in the man-
ufacture and transportation of concrete, sand
and gravel products including plant mainte-
nance and plant cleanup work except and ex-
cluding all office and office clerical employees,
carpenters, other employees and guards and su-
pervisors as defined in the Act.
On the other hand, the outstanding Board certifica-
tion covered the following unit:
All employees employed by Hunt Brothers
Construction, Inc., at its Coeur d'Alene, Idaho,
operations , excluding all office clerical employ-
ees, carpenters , guards , and supervisors as de-
fined in the Act.
The contract is silent as to the Unions' representa-
tion of the 13 employees covered by the Board certi-
fication but who were not covered by the March 16
contract.
After the contract was executed, Arthur Hansen,
field representative of International Union of Oper-
ating Engineers, Local 370, AFL-CIO, the Charging
Party herein and one of the three Unions which com-
prise the joint representative, demanded "recogni-
tion" from Respondent for those people who were
working on its construction projects. Hansen caused
two of Respondent's projects to be picketed. The
picket sign read, "Employees of Hunt Brothers do
not receive union wages and benefits. Operating En-
gineers." At another project, the picket sign read,
"Hunt Bros. has no agreement with the Laborers Lo-
cal No. 238, Operating Engineers, Local 370." Han-
sen told Respondent that he was picketing for just
exactly what was on the picket sign . As Hansen testi-
fied , Hansen was very unhappy about the fact that
the collective-bargaining agreement covered only the
cement batch plant employees , and of these 16 em-
ployees all had joined the Teamsters Union except 2
who joined his Union , the Operating Engineers.
Hansen admitted that he had become very disturbed
with the Teamsters Union when he realized , belated-
ly, how the negotiations had been conducted with
respect to the scope of the unit.
Respondent refused to bargain with the Operating
Engineers or the Laborers concerning what is euphe-
mistically referred to by the Administrative Law
Judge as the "residual" employees . The Administra-
tive Law Judge found that neither the contract nor
the negotiations established a "specific waiver" of
the Unions' "right" to represent all the employees of
the certified unit . He also found that the Unions did
demand from Respondent bargaining on behalf of
the remaining "residual" 13 employees, and that the
demand was not made on behalf of just 1 of the 3
Unions comprising the joint representative . The Ad-
ministrative Law Judge concluded that such request
by the joint representative "together with
Respondent's acknowledged refusal to negotiate for
the `residual ' employees, clearly establishes an ade-
quate request to bargain ." The Administrative Law
Judge , therefore, found , and my colleagues agree,
that Respondent violated Section 8(a)(5) by refusing
on request to bargain collectively with the joint rep-
resentative "of all employees in the appropriate
unit ." According to the Administrative Law Judge,
the appropriate unit is that which was certified by the
Board . This last finding is not explained.
While my colleagues find Respondent has refused
to bargain with the joint representative in the certi-
fied unit , they nevertheless order Respondent only to
bargain with respect to the "residual " employees not
covered by the current collective-bargaining agree-
ment, and to sign a separate contract covering the
"residual" employees . Instead of the one certified
unit, now there stands two . Why not three? Or four?
For it is abundantly clear that Respondent has
bargained in good faith with respect to the 16 batch
plant employees, just as the Unions demanded. Re-
spondent has only refused to recognize the Unions or
bargain with respect to the 13 "residual" employees,
but of course it is axiomatic that Respondent need
not do so unless the demand has been made in an
appropriate unit in which the Unions have demon-
strated majority support.
Contrary to my colleagues , I find that Respondent
has not refused to bargain in violation of the Act,
because there has been no demand for recognition
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and bargaining in an appropriate unit. See, e.g.,
Graneto-Datsun, a Graneto Company, 203 NLRB 550
(1973). The evidence is clear that the Unions' request
for bargaining and recognition was for only 13 em-
ployees out of the certified unit of 29. There is no
evidence in this record to establish the appropriate-
ness or inappropriateness of such a unit, nor is there
any evidence as to the Unions' majority support or
lack of it in such a unit. Section 8(a)(5) of the Act
provides that an employer commits an unfair labor
practice when it refuses "to bargain collectively with
the representatives of his employees, subject to the
provisions of Section 9(a)." (Emphasis supplied.) Sec-
tion 9(a) of the Act provides in pertinent part:
Representatives designated or selected for the
purposes of collective bargaining by the majority
of the employees in a unit appropriate for such pur-
poses, shall be the exclusive representatives of all
the employees in such unit. . . . [Emphasis sup-
plied.]
In this case, Respondent has bargained fully and in
good faith with the joint representative and has exe-
cuted a contract covering 16 of the 29 employees in
the certified unit. In reaching that contract, Respon-
dent did no more than capitulate to the Unions' de-
mand that the scope of the unit be confined to the 16
cement batch plant employees. It was clearly lawful
for the parties to so agree. Charles T. Douds, Regional
Director v. International Longshoremen's Association,
Independent [New York Shipping Association], 241
F.2d 278 (C.A. 2, 1957); G. B. Curry, President; In-
ternational Union of Operating Engineers, Local No.
428, et al. (Phelps Dodge Corporation), 184 NLRB 976
(1970).5
In my view, and my colleagues do not disagree, the
parties were legally entitled to voluntarily bargain for
an agreement covering only part of the unit previous-
ly certified by the Board .6
However, once the parties have seen fit to disre-
gard this Board's certification, and negotiate a collec-
tive-bargaining contract recognizing the Unions as
representing only a part of the employees in the certi-
fied unit, then that certification can no longer sup-
port the demand for bargaining by one party as to
5 At 977, the Board stated:
We do not and need not evaluate the Respondents ' bargaining efforts
in terms of the merits of the goal sought to be achieved . For it is well
established that the integrity of a bargaining unit , whether established
by certification or by voluntary agreement of the parties , cannot as
here be unilaterally attacked . [See the cases cited therein.]
6 Of course , while such is not the case here, neither party in collective-
bargaining negotiations may insist to impasse on either contraction or en.
largement of the existing appropriate bargaining unit. Salt River Valley Wa-
ter Users' Association, 204 NLRB 83 (1973); International Union of Operating
Engineers, Local 525, AFL-CIO (Clark Oil & Refining Corporation), 185
NLRB 609 (1970).
the remaining segment or segments of employees in
what the Board viewed as the appropriate unit. As
the court stated in Douds, supra:
... The parties cannot bargain meaningfully
about wages or hours or conditions of employ-
ment unless they know the unit of bargaining.
That question is for the Board to decide on a
petition under Section 9(c) of the Act, and this
decision is conclusive on the parties [citations
omitted] , although the decision may subsequent-
ly be changed.
* * * *
... This decision may be altered at a later time
on a new petition to the Board. Past experience
has demonstrated that the Board on occasion
has done this. It may be altered by the Board if,
in a proceeding to enforce or set aside an Order
issued by the Board, a Court of Appeals finds
the Board's determination not supported by sub-
stantial evidence on the record as a whole and
declines to enforce or sets aside the Order based
on that determination. Finally, it may be altered
by agreement of the parties, if the process of altera-
tion involves no disruption of the bargaining pro-
cess or obstruction on commerce and if the Board
does not disturb the agreement in a subsequent rep-
resentation proceeding. Lever Bros. Co., 96 NLRB
448; Owens-Illinois Glass Co., 108 NLRB 947. In
these situations, the process of change is con-
templated by the Act and is obviously consistent
with its policy of avoiding obstructions of the
flow of commerce by encouraging collective
bargaining. And the Board, which is directed on
a petition to decide in each case the appropriate
bargaining unit, retains control of the changes
made. [Emphasis supplied.]
The process of change not permitted by the
Act is one that denies the Board this ultimate
control of the bargaining unit and disrupts the
bargaining process itself. This is precisely what
occurs when, after the Board has decided what
the appropriate bargaining unit is, one party
over the objection of the other demands a
change in that unit. Such a demand interferes
with the required bargaining "with respect to
rates of pay, wages, hours and conditions of em-
ployment" in a manner excluded by the Act. It
is thus a refusal to bargain in good faith within
the meaning of Section 8(b)(3).
It is apparent that in this case, while the parties
have voluntarily agreed to reduce the certified unit in
this case , Respondent did not voluntarily agree to
7 The Board has long since specifically approved and relied on the court's
opinion in Douds. See, e .g., Phelps Dodge, supra, 977.
HUNT BROTHERS CONSTRUCTION, INC.
recognize the Unions and negotiate for a unit of the
"residual" 13 employees contained- in the original
certified unit .8 This Board cannot find a violation of
Section 8(a)(5) of the Act without first adducing evi-
dence and deciding on that evidence that : ( 1) these
13 "residual" employees constituted an appropriate
unit in and of themselves , and (2) the Unions repre-
sent a majority of the employees in such a unit. Sec-
tion 9(b) of the statute requires the Board to de-
termine the appropriate unit for the purposes of
collective bargaining , and this task belongs exclusive-
ly to the Board .9 "While it has been held that the
parties may agree to consolidate units for purposes of
collective bargaining, respect for the stability of in-
dustrial relations imparted by the Board's determina-
tion has led to the rule that a party may not be forced
to bargain on other than a unit basis ." Oil, Chemical
and Atomic Workers, International Union, AFL-CIO
[Shell Oil Company and its Division] v. N.L.R. B., 486
F.2d 1266 (C.A.D.C., 1973).
Accordingly, for want of a demand for bargaining
in an appropriate unit , and for lack of a showing of
majority support in an appropriate unit , I find that
Respondent has not violated Section 8(a)(5) of the
Act. I would dismiss the complaint in its entirety.10
8 The discussion of the Administrative Law Judge with respect to whether
"the Union waived its right to demand representation of the residual em-
ployees" is erroneous . That discussion is erroneous because it is predicated
on the erroneous premise that a bargaining agent can require an employer
to sign a contract for only a part of a certified unit and preserve rights under
the Board 's certification . It was the bargaining agent 's own conduct in de-
manding a contract for only the batch plant employees which foreclosed
negotiations in the certified unit. The action of the bargaining agent here
was in derogation of the Board's certification and extinguished any obliga-
tion of the Respondent to bargain in a residual unit of employees not cov-
ered by the contract . A union cannot demonstrate its majority in a Board
election in an appropriate unit, obtain a Board certification in that unit, and
thereafter insist on bargaining in a unit different from the certified unit.
Young and Hay Transportation Company, 214 NLRB No. 39 (1974).
9 My colleagues err when they state that my position is that the Unions
have "waived their interest" in representing these employees , or that I find
that the "residual employees are "some separate and distinct grouping of
employees."
The latter is in fact their position , as their remedy demonstrates. In my
view, the statute requires that this Board find the appropriate unit , and, if
necessary , order Respondent to bargain in that unit . Painful it may be to
acknowledge that the parties have bargained in derogation of our certifica-
tion, but that is not unlawful . And unless my colleagues do find these so-
called "residual" employees constitute an appropriate unit , their bargaining
order for the "residual" unit offends the statute
I do not contend that the Unions have "waived their interest." But it is
clear that the parties have bifurcated the certified unit . In such a case nei-
ther party can be required by the Board to bargain in separate units without
first complying with the statutory command that the Board determine the
appropriateness of such units.
0 Furthermore , if a labor organization were to file a representation peti-
tion seeking a unit of these 13 employees , and if such a unit were found
appropriate, I would revoke the certification herein and direct an election.
United Foods, Inc., Dulaney Foods Division, 188 NLRB 117 (1971)
APPENDIX
181
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union of Operating Engineers, Local
No. 370, AFL-CIO; Laborers International
Union of North America, Local No. 238, AFL-
CIO; and Teamsters Local Union No. 690, affi-
liated with Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Independent, as the exclusive (joint) representa-
tive of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Unions, as the exclusive (joint)
representative of all employees not covered by
the collective-bargaining agreement entered into
with the joint exclusive bargaining representa-
tive on March 16, 1973, in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All employees employed by Hunt Brothers
Construction, Inc., at its Coeur d'Alene, Ida-
ho, operations, excluding all office clerical
employees, carpenters, guards, and supervi-
sors as defined in the Act.
HUNT BROTHERS CONSTRUCTION, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Spokane, Washington, on May 2 and
3, 1974. The complaint, issued February 15, 1974, is based
on a charge filed May 14, 1973, by International Union of
Operating Engineers , Local No. 370, AFL-CIO (hereinaf-
ter referred to as the Union). The complaint alleges that
Hunt Bros . Construction, Inc.' (hereinafter referred to as
Respondent), violated Section 8(a)(1) and (5) of the Na-
i As amended by Respondent at hearing. Name erroneously is on the
pleadings as Hunt Brothers Construction, Inc.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Act (hereinafter referred to as the
Act).
Issues
The principal issues herein are:
1. Whether this matter should be deferred for submis-
sion to an arbitrator.
2. Whether the Union, having executed a bargaining
agreement with Respondent covering a portion of the em-
ployees within the appropriate unit, thereby and through
its actions and words relative thereto, waived its right to
demand that Respondent bargain for an agreement or
agreements to cover employees not encompassed within
the executed agreement (hereinafter referred to as residual
employees).
3. Whether the Union requested that Respondent bar-
gain with it concerning the residual employees, and, if so,
whether Respondent refused to bargain.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has been, and
now is, an Idaho corporation engaged in the manufacture,
preparation, and delivery of ready-mix concrete; land
clearing; residential construction; land development; and
related enterprises. During the past 12 months, a represen-
tative period, Respondent purchased goods and materials
valued in excess of $50,000 directly from outside the State
of Idaho, and purchased goods and materials valued in
excess of $50,000 from firms which, in turn, purchased said
goods from outside the State of Idaho.
If. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local No.
370, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
Respondent is an Idaho corporation, principally owned
and controlled by James W. Hunt and Paul E. Hunt, who
are brothers. Respondent's principal place of business is in
Coeur d'Alene, Idaho, but it does some business at other
places in and near Coeur d'Alene. Respondent's most im-
portant business is operation of a batch plant for the pro-
duction of ready-mix concrete, but it also engages in resi-
dential and commercial construction, highway
construction, land clearing and development, and related
business. Respondent has a total of about 29 employees, of
which about 15 are employed at the batch plant.
On August 24, 1972, the National Labor Relations
Board certified that the Union and two other labor organi-
zations 2 (said three organizations sometimes hereinafter
collectively referred to as the joint representative) as the
joint exclusive bargaining representative of the unit com-
prised of all employees employed by Respondent at its
Coeur d'Alene, Idaho, operations, excluding all office cleri-
cal employees, carpenters, guards, and supervisors?
On March 16, 1973, Respondent and the joint represen-
tative of said unit entered into a memorandum of agree-
ment covering Respondent's batch plant operations only.
No collective-bargaining agreement has been negotiated
for, or executed to cover, the remaining 13 residual em-
ployees.
James W. and Paul E. Hunt also conduct a business in
Coeur d'Alene as a partnership, known as Inland Framing
and Builders. The business is a legal entity, separate and
apart from Respondent and separately registered with ap-
propriate governmental offices. The partnership, organized
for construction work, has been in existence about 4 years
longer than Respondent, although it has been inactive,
with no employees or business activities, for about the past
18 months. The partnership has, in the past, entered into
compliance agreements with the three unions representing
the unit involved herein.4
Respondent also does some business under the firm
name of Empire Concrete, but that fact results in no legal
or practical consequences, so far as this case is concerned.
Only bookkeeping functions are involved.
The controversy herein arose because of the Union's
contention that Respondent refused to bargain for an
agreement to cover the residual employees. Respondent
does not deny that it refused to bargain and continues to
do so, but contends there is no duty to bargain.
The record establishes a series of bargaining sessions
that resulted in the agreement of March 16, 1973, and it
also shows the concurrence of the parties that the agree-
ment covered only batch plant employees.
The principal question is the intent of the parties con-
cerning the residual employees-whether the agreement
negotiated by the joint representative foreclosed further
bargaining, or whether it merely set aside the residual em-
ployees for later bargaining in their behalf.
B. Basic Evidence and Testimony
The parties are in agreement that the contract of March
16, 1973, resulted from a series of six bargaining sessions,
and that the contract is limited by its terms and by intent
of the parties to employees of the batch plant.
The bargaining unit is described in the Board's certifica-
tion as:
2 Laborers International Union of North America, Local No. 238, AFL-
CIO; and Teamsters Local Union No. 690, affiliated with Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Indepen-
dent.
3 Agreement for Consent Election , signed by Respondent and the joint
representative, so describes the unit (G. C Exh 2B.)
4 G. C. Exhs. 13, 14, and 15
HUNT BROTHERS CONSTRUCTION, INC. 183
All employees employed by Hunt Brothers Construc-
tion, Inc. at its Coeur d'Alene, Idaho operations, ex-
cluding all office clerical employees , carpenters,
guards , and supervisors as defined in the Act.
The contract of March 16 states, in article I thereof:
UNION RECOGNITION: The Employer agrees to recognize
the Unions as the sole collective bargaining agent for
all of its employees at its Coeur d'Alene, Idaho opera-
tions engaged in the manufacture and transportation
of concrete , sand and gravel products including plant
maintenance and plant clean-up work except and ex-
cluding all office and office clerical employees, car-
penters, other employees and guards and supervisors
as defined in the Act.
The contract does not have a specific waiver of union
representation of, or bargaining for, the residual employ-
ees. If a waiver exists, it can be shown only by testimony.
Testimony adduced at hearing on this subject was not ex-
plicit. Waiver, or absence thereof, thus can be found only
by implication, if at all.
As shown above, the union-recognition clause of the
contract is more restrictive than the Board's certification of
the unit. It is clear that the Board did not limit the unit to
the batch plant, and there has been no unit clarification or
other action to formally establish a unit covering fewer
than all of Respondent's employees at its Coeur d'Alene
operations.
It is also clear that the contract specifically excludes "of-
fice" and "other employees" in addition to the Board's de-
scription of those excluded from the unit as office clerical
employees, carpenters, guards and supervisors. The record
shows that those differences between the Board's unit des-
scription and article I of the contract were the result of
negotiations-they were not inadvertent. The reason for
the differences, however, was not specifically established at
hearing.
The record shows that the unit certified by the Board
consists of 29 employees. Of that total, 16 were covered by
the contract of March 16.
It is necessary , therefore , to examine the testimony rela-
tive to the subject of possible waiver. A refusal to bargain
having been acknowledged by Respondent, and the con-
tract being silent on the subject, only testimony can estab-
lish whether or not there was a waiver of representation.
Robert E. Kivett, hereinafter referred to as Kivett, testi-
fied for the General Counsel on direct examination that he
is the president and business agent of Local 690, and that
he was spokesman for the joint bargaining representative
at negotiations with Respondent. He said he acted as
spokesman by informal oral agreement of the three indi-
vidual union representatives involved, and it was agreed
that he would be spokesman "until this contract was suc-
cessfully negotiated."
Kivett testified at some length to negotiation sessions
attended by representatives of the three unions and of Re-
spondent . He said he attended sessions on December 1 and
15, 1972, and on January 22 and February 1 and 20, 1973.
He testified that, during the meeting December 1, he "may
have specifically asked the question `Well, do you people
intermingle your crews from one segment of your opera-
tion to the other', and the answer was yes, they do at differ-
ent times ." He also stated "It was agreed that at certain
times employees may be driving mixer trucks who are em-
ployees for or for a portion of the company known as Em-
pire Concrete who are, in fact, actually employees of Hunt
Brothers Construction Company and are paid by the
same."
Kivett testified that, although he did not recall specific
statements, he did remember "cross-table" discussions dur-
ing the bargaining sessions relating to employees other
than those at the batch plant. He said he also remembered
some discussion about possible instances that later may
arise involving exchanges of employees on a temporary ba-
sis between Inland Framing and Respondent. He stated
that he indicated during "cross-table" discussions "Well, if
something different happens later, why then we'll be talk-
ing about that then." Kivett testified at some length to dis-
cussions, at bargaining sessions, concerning Respondent's
activities, work, and employees involved in projects other
than the batch plant.
Jacob B. Dodge, hereinafter referred to as Dodge, testi-
fied as secretary-treasurer and office manager of Respon-
dent. He outlined the legal status of Inland Framing and
Builders as a separate entity, registered under Idaho law,
and the status of Empire Concrete as a trade name some-
times used by Respondent. He stated that Inland Framing
and Builders presently is inactive, it having last engaged in
a project about 1-1/2 years ago. That was a highway pro-
ject in the Craigmont area of Idaho. He testified that, dur-
ing the period of time Inland Framing and Builders was
active, there was some interchange of employees and
equipment between that partnership and Respondent. He
stated that, on the partnership's last job (Craigmont), In-
land Framing and Builders used about 30 of its own em-
ployees, of which 2 to 4 formerly had been employees of
Respondent. When the Craigmont job was completed, the
two to four former employees of Respondent returned to
their former jobs with Respondent and the others were laid
off by the partnership.
Dodge testified that, at the bargaining session of January
22, 1973, a representative of Local 238 stated (in the words
of General Counsel) "We are not interested in your hous-
ing. We won't have anything to do with these other things.
That will have to wait for some other time," or that there
was "conversation along that line."
Arthur I. Hansen, hereinafter referred to as Hansen,
field representative of Operating Engineers Local 370, tes-
tified that, prior to the filing of the petition for election, he
and others "contacted employees of Hunt Brothers on vari-
ous projects and obtained bargaining cards for the purpose
of NLRB elections for its employees."
Hansen testified that, at the first bargaining session on
October 19, 1972, a principal subject was the name of the
company involved in the negotiations. He said the negotia-
tors were talking about "The same number of employees
were on the Excelsior list," totaling 29. He also testified, on
direct examination, that he talked with James Hunt in ear-
ly April 1973 (after the agreement was signed), when he
visited Respondent's place of business to sign up the new
members of his Local. He said he only obtained two mem-
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers, and asked Hunt about it:
A. Well, I asked Jim Hunt specifically where the
rest of the people were. And he asked me if I had read
the contract signed on March 16. And I informed that
I had read that contract. I asked him about the em-
ployees who were at that time out digging ditches,
building roads, other heavy and highway construction
work, and he said that they didn't fit into this thing.
We weren't talking about them.
I informed him then that I certainly felt that I repre-
sented those people, and that I certainly wanted to
discuss them.
Q. Did Mr. Hunt make any reply to that?
A. I don't recall, I don't believe at that time. I don't
believe he made any comment.
Hansen testified that he talked with James Hunt in the
latter part of April 1973, and asked about a project at Air-
way Heights , Washington , that Respondent was engaged
in. Hansen stated that Hunt told him "This was not some-
thing that I had a contract over or that I had any right to
discuss with them at all." Hansen said he then caused pick-
ets S to be set up at Airway Heights for recognition, and
visited the jobsite, where he obtained three membership
application cards and bargaining cards. After 2 days,
Hansen's members were sent to Respondent 's jobsite at
Pritchard, Idaho, and the picketing at Airway Heights was
discontinued. Picketing was conducted at Pritchard 3 days.
Hansen testified that he talked with the Hunt brothers
and Dodge May 8, 1973:
Jim Hunt asked me specifically what I was picket-
ing for and I told him for just exactly what was on the
picket sign. That sign, I was trying to recall what, Paul
then asked me hadn 't I read the agreement that had
been signed. And, again, I informed him that I had
indeed read the agreement. I think I asked him what
the relationship was to this project with regard to
Northland General and I was again informed that
Northland General or the other employees on the pro-
ject at Pritchard had nothing to do with the contract
we had consummated with Hunt Bros. I believe that
was about the size of the conversation.
Hansen said he also talked during that conversation about
his desire to bargain for a contract to cover "the people in
the Unit," and that he mentioned a type of contract he had
in mind, but that he was unable then to discuss contract
terms.
On cross-examination , Hansen denied that nothing was
said in his conversation with James Hunt the early part of
April 1973 relating to Hansen's claim to represent employ-
ees other than those in the batch plant . Hansen also testi-
fied that he then expressed to James Hunt his annoyance
with only getting two new members as a result of the con-
tract. Hansen said he told James Hunt that the matter
3 It was stipulated at hearing that the picket sign used at Airway Heights
read "Employees of Hunt Bros. do not receive union wages and benefits.
OPER. ENG."
Harold Avery testified that he printed the signs used at the Pritchard
project , and that they read : "Hunt Bros. has no agreement with the Labor-
ers Local No . 238, Operating Engineers , Local 370."
would be discussed with the Teamsters, who got most of
the new members, and he said he possibly asked Hunt's
assistance in talking with the Teamsters.
Hansen testified on cross-examination that he told the
Hunt brothers during a conversation in May 1973 that "I
was picketing (Note: at Airway Heights) for recognition of
those people who were working on the project." That state-
ment later was reiterated on cross-examination. He also
testified about that conversation "I wanted to settle the
issue of the additional employees of Hunt Brothers prior to
going into a logging agreement ." He denied that he asked
to include employees on the Airway Heights job in the
existing contract covering the batch plant.
Relative to the early April conversation with James
Hunt, when new members were being signed up by Han-
sen, the latter testified that he was upset, and said why:
THE WITNESS : Well, it was pretty apparent that I had
gotten three people out of the possible 18. So some-
body had got the rest of them which was the teamsters
union and I was certainly a little unhappy about it
when I discovered that there were only, after being
told that we apparently by the company's determina-
tion had negotiated only for a portion of those people
on the Excelsior list. And it had been my assumption
that we were negotiating for all of them so 28 persons
had now all of a sudden become something like 13 or
18. I'm not sure of the exact number. This was my, I
think this was my remarks relative to why I was dis-
turbed with the teamsters union.
Dodge stated that he was present at the early April con-
versation between James Hunt and Hansen, and that noth-
ing was said about bargaining for residual employees, nor
did Hunt tell Hansen to read the existing contract. Dodge
also testified that nothing was said at the May 8 conversa-
tion between Hansen and the Hunt brothers about further
negotiations.
James W. Hunt, vice president of Respondent and here-
inafter referred to as Hunt, testified relative to the bargain-
ing session of January 22, 1973:
Q. Was there a discussion about the bargaining
unit, who was to be in the bargaining unit and who
was not to be in the bargaining unit?
A. Well, I remember at the first part of the meeting,
that Paul had mentioned a concern about all of our
people being included in this and that it would be
quite hard under some of our jobs to, and being the
competition the way it was, to have them all included
in this, and one of the gentlemen said that , "Well, we
weren't interested in all of them , we were having pres-
sure from one of the other concrete premix outfits,
we're just interested in your concrete outfit."
Q. Do you recall who that was that made that re-
mark?
A. Well, I believe it was already stated here as Mr.
Hawkins.
Q. Do you recall any discussion-well, excuse me.
Do you recall any other discussion with respect to this
matter of employees and employees being moved from
one job to another and things of this sort?
HUNT BROTHERS CONSTRUCTION, INC. 185
A. Yes, all the way through from the December
19th, I believe, up until we had settled this matter,
there was quite a bit of discussion on this, in fact, it
was one of our biggest concerns.
Hunt denied that the Union requested further bar-
gaining, after the contract was signed. He also denied
stating that Hansen should read the contract. Relative
to the May 8 conversation, Hunt testified:
Q. Describe for us what happened at this meeting
at Templin's in your own words as you best recall it.
A. Well, Jake had gotten a call from-I should say
one of our employees had told us that Mr. Hansen
would be down at Templin's and that we should talk
to him, and we wanted to talk to him anyway, we
wanted to find out-the purpose of our meeting was
finding out why he had pickets on our job, and we
went down there and we chatted for quite awhile and
we asked him why he had pickets on our job, and his
concern was that he hadn't gotten enough people out
of this deal and that he thought that by something like
this that maybe that he could get more people or
something, that we would, he thought maybe we could
take care of making sure that he got more people from
Mr. Purtle or something. This is the gist of what I
gathered.
Analysis and Conclusions
1. The Collyer issue
Respondent argues that this controversy should be de-
ferred for referral to arbitration under the principle of Col-
lyer Insulated Wire, 192 NLRB 837 (1971). The argument is
something less than vigorous, however. It was very briefly
covered at hearing and in the brief, the latter stating almost
parenthetically that Collyer "is not without possible merit
here." Respondent felt "-no need to amplify-" its argu-
ment.
It is clear that Collyer is not applicable. Article XII of
the contract is for "adjustment of disputes," and provides,
in part, that the parties "-agree to give serious consider-
ation-" to arbitration of disputes. That is hardly an en-
forceable provision ; arbitration is left to an agreement out-
side the contract. In such circumstances, Collyer is not
available as a defense . Further, this controversy involves a
question of representation rather than one of contract in-
terpretation. Collyer is not applicable in such a dispute.
Germantown Development Co., Inc., 207 NLRB 586 (1973);
Combustion Engineering, Inc., 195 NLRB 909 (1972); West-
inghouse Electric Corporation, 162 NLRB 768 (1967).
2. The waiver issue
As outlined above, the Board on August 24, 1972, certi-
fied the three unions involved herein as the joint exclusive
bargaining representative of the unit comprised of all em-
ployees employed by Respondent at its Coeur d'Alene,
Idaho, operations , excluding all office clerical employees,
carpenters , guards, and supervisors . Estimated total num-
ber of covered employees was 29. The contract executed
March 16, 1973, by its terms is limited to employees of the
batch plant, totaling 16 at that time, and it contains no
language indicating an intention to alter the unit or to af-
fect in any manner the 13 employees not covered by the
contract. Further, both parties repeatedly insisted through-
out the hearing that the contract coverage specifically and
intentionally was limited to batch plant employees.
General Counsel placed some reliance during the hear-
ing on the alleged status of Inland Framing and Builders as
an alter ego of Respondent. The proof does not support
that contention. The evidence shows that Inland Framing
and Builders is a legal partnership, registered with the State
of Idaho, entirely separate and apart from Respondent.
The partnership is several years older than Respondent. Its
last job was completed about 18 months ago, after which
all but 2 to 4 of its approximately 30 employees were per-
manently laid off. Although the partnership and Respon-
dent sometimes exchanged employees and equipment on a
temporary basis, that activity appears to have been the ex-
ception rather than the rule. There is no basis on which to
conclude that the partnership and Respondent are one and
the same, nor is there any basis on which to conclude that
the controversy herein concerns the partnership in any
manner, and it is so found. All discussion hereinafter refers
solely to Respondent corporation, acting under its own
name but sometimes doing business under the firm name
of Empire Concrete.
A principal question is whether, as a matter of fact, the
Union waived its right to demand representation of the
residual employees. (The question of a demand to bargain
is discussed later.) The contract certainly does not, by its
terms, specifically state that the Union thereby waives its
right to represent residual employees. It does not even
mention them. Each side had its own reasons for wanting
to limit application of the contract, but regardless of those
reasons, the contract left without an agreement almost half
the employees of Respondent, all of whom are within the
unit established by the Board. Respondent contends that
the negotiated contract includes all subjects normally bar-
gained, such as union recognition, union security, manage-
ment rights, vacations, pay, and hours, and that such bar-
gaining shows that residuals intentionally were omitted;
that such subjects surely would not be bargained a second
time, for the residuals; that such conduct constitutes a
waiver of the right to represent all employees not covered
by the contract. In support of its contention, Respondent
elicited testimony from its witnesses that at no time has the
Union requested that Respondent bargain for the residual
employees.
The Union contends that the contract means what it
says; that it covers only batch plant employees and that all
subjects covered by the contract were negotiated for those
employees alone. The Union contends that it has, on sever-
al occasions, discussed residual employees with Respon-
dent and requested that it bargain for those employees.
The witness, Hansen, testified that residual employees have
expressed concern to him about their status, and have
asked him if the Union is going to represent them.
General Counsel's witness, Kivett, testified to discussion,
during negotiations, about the possibility of future con-
tracts for operations other than the batch plant, although
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he said no future bargaining sessions were planned, other
than those for the batch plant . General Counsel's witness,
Hansen, testified that, at the bargaining session of October
19, 1972, all 29 employees of Respondent were discussed;
that he privately asked Kivett during the bargaining ses-
sion of February 1, 1972, "this doesn 't mean that we are
not going to go on and talk about the rest of the employ-
ees," to which Kivett replied "absolutely not"; that he told
James Hunt in April 1973 that he felt he represented resid-
ual employees and wanted to discuss them ; that he dis-
cussed employees on the Airway Heights job with James
Hunt, and later caused picketing at the job "for recogni-
tion" of his union on behalf of residual employees; and
that he caused picketing of Respondent 's Pritchard , Idaho,
job for the same purpose , and discussed that picketing with
James Hunt.
Respondent 's witness , Dodge , called by the General
Counsel , testified that , during the bargaining session of
January 22, 1973, there was a statement by James Hawkins
of the Union "along that line ," when he asked if the state-
ment was "We are not interested in your housing . . . we
won't have anything to do with these other things. That
will all have to wait for some other time ." Respondent's
witness, James Hunt , testified to the same effect on cross-
examination. These two witnesses , together with General
Counsel's witnesses, Avery and Kivett, provide solid sup-
port for the testimony of Hansen.
Hansen testified that he discussed with Respondent all
employees in the unit , both before and after the election;
that in no instance was there talk of limiting the Union's
representation to employees of the batch plant. Hansen
testified that he talked with James Hunt on several occa-
sions about representing residual employees . Hunt denied
those statements . Hansen's version has support in the rec-
ord, and his version is credited . Hansen testified that he
caused picketing at two of Respondent 's jobsites where re-
siduals were employed , for the purpose of obtaining recog-
nition of his union as a representative of those employees.
That testimony was not challenged or contradicted by Re-
spondent.
The record thus is devoid of any testimony or evidence
showing a specific waiver . The only portion of the contract
applicable to this part of the controversy is the article I,
recognition clause , quoted above . That clause , by its terms
and by acknowledgment of both the Union and the Re-
spondent , limits its coverage to batch plant employees. The
contract is silent, so far as residual employees are con-
cerned . Silence cannot constitute a waiver; if the Union is
to be charged with a waiver, it can only be on the basis of
specific contractual expression of a clear and unmistakable
nature . Wisconsin Aluminum Foundry Co., Inc., 173 NLRB
1160 (1968), enfd . 440 F .2d 393 (C.A. 7, 1971); Federal
Compress & Warehouse Company, 166 NLRB 664 (1967),
enfd . in relevant part 398 F .2d 631 (C.A. 6, 1968 ); Timken
Roller Bearing Company, 138 NLRB 15 ( 1962), enfd. 325
F.2d 746 (C.A. 6, 1963); Perkins Machine Company, 141
NLRB 98 (1963); The Jacobs Manufacturing Company, 94
NLRB 1214 ( 1951).
The record contains extensive testimony concerning bar-
gaining sessions prior to execution of the March 16 con-
tract . That testimony is as silent as the contract , so far as a
waiver is concerned . No witness testified to an intent on
the part of the Union to waive representation of the resid-
ual employees.
Respondent urges finding of a waiver by inference. That
argument is not accepted . First, a waiver must be clear and
unmistakable , which is almost tantamount to saying "ex-
pressly stated." As pointed out above, such a waiver can-
not be found in the contract or the testimony. Second, even
if a waiver legally and in the abstract can be implied (an
arguable proposition), an inference cannot be drawn in this
case to support Respondent 's argument . So far as the con-
tract is concerned, limitation of its coverage to approxi-
mately half the employees of the unit, without any state-
ment about the other half, precludes an inference of waiver
of interest in such other half. Execution of more than one
contract in a unit of employees is a common occurrence.
There are many reasons for multiple contracts, but no case
was cited by Respondent, and none was found, wherein
execution of a contract for fewer than all employees of a
unit was found to constitute a waiver of representation of
remaining employees.
So far as the testimony is concerned , no witness support-
ed the theory of implied waiver. Respondent's witnesses
(particularly Dodge and Hunt) made it clear that Respon-
dent recognized, and talked about, the possibility of future
consideration of residual employees. General Counsel's
witnesses (particularly Kivett and Hansen) clearly estab-
lished that the contract of March 16 was intended to cover
only batch plant employees, and that residual employees
would be discussed later . In such circumstances , even an
implied waiver is precluded.
It is found that the Union did not waive its right and
duty to represent the residual employees.
3. The request to bargain issue
Respondent argues in its brief that there is "-absolutely
no proof of a demand for bargaining ." It is argued that this
proposition is established by: (a) No written request for
bargaining was made by Hansen , (b) the employees Han-
sen claimed to represent did not constitute an appropriate
collective-bargaining unit, nor did his union represent a
majority of them , (c) Hansen did not establish his authority
to speak for the joint representative (the three unions here
involved).
It may well be , as alleged by Respondent , that Hansen
was not as diligent or as alert as he should have been, in his
relationship with Respondent . It also may be that Hansen's
requests to bargain were less than perfect in the making.
However, perfection is not required in this situation. The
record as a whole shows that Hansen did speak for the
joint representative , he requested that Respondent bargain
for the residual employees , and Respondent refused to bar-
gain . It is so found.
(a) It is not necessary that a request to bargain be re-
duced to writing . Respondent argues "all we have is his
(note : Hansen's) testimony and that does not develop any
clean or clear representation request."
As noted above , Hansen's testimony has record support
in the testimony of others , and it is credited . He testified
that he talked with James Hunt , and asked where the resid-
HUNT BROTHERS CONSTRUCTION, INC. 187
ual employees were; he testified that James Hunt asked if
Hansen had read the March 16 contract, and told Hansen
that he (Hunt) would not talk about the other employees;
he testified that he told James Hunt "I represented those
people, and that I certainly wanted to discuss them"; he
testified that he caused picketing at two of Respondent's
jobsites for "recognition," and that he told James Hunt he
wanted to represent the rest of Respondent's employees
not covered by the March 16 contract. It is found that such
testimony, together with Respondent's acknowledged re-
fusal to negotiate for the residual employees, clearly estab-
lishes an adequate request to bargain. De Luca Brothers,
Inc., 201 NLRB 49 (1973). Respondent's refusal to bargain
continues to the present. Essex Wire Corporation, 188
NLRB 397 (1971).
(b) So far as the bargaining unit is concerned, the record
shows that Respondent's challenge is without merit. The
Certification of Representative defines the unit, and states
that it includes approximately 29 members. The vote was
in favor of the three unions here involved. That vote has
not been found improper. There has been no request for
clarification or change of the unit. Respondent argues that
the background of the March 16 contract "-leaves no
doubt that the negotiated labor agreement contemplated
the same bargaining unit as that intended by the unions in
their agreement for Consent Election." That is patently in
error, because of the different wording in the two docu-
ments. The contract specifically excludes "other employ-
ees." Respondent asks in its brief "Then, what is there that
would bar the parties from mutually increasing the size of
the unit, or reducing the size of the agreed upon unit?" The
answer is obvious-the parties did not "mutually" change
the size of the unit. They merely executed a contract to
cover a portion of the unit, with the remainder to be cov-
ered at a later date. It is Respondent who seeks, unilateral-
ly, to change the size of the unit. That cannot legally be
accomplished, since the Board's certification is conclusive
unless and until changed by the Board or through proper
mutual action. T. 0. Metcalf Co. v. N. L. R. B., 405 F.2d 1022
(C.A. 1, 1969), enfg. 171 NLRB 1225 (1968); Jay Kay Metal
Specialists Corp., 173 NLRB 342 (1968). It is found that the
residual employees here involved are included within the
appropriate unit.
(c) The record as a whole clearly shows that Hansen
spoke for the joint representative when he stated to Re-
spondent that the residual employees were considered to
be within the unit described in the Board's certification,
and when he requested bargaining for those employees.
Hansen's position with the Operating Engineers is authori-
tative and unchallenged-he spoke for Local 370. Kivett's
authority to speak for the Teamsters, Local 690, also is
clear and unchallenged. Harold Avery's authority to speak
as field representative for Laborer's Local 238 was not
questioned.
Kivett's testimony concerning the informality of his se-
lection as spokesman for the limited purpose of negotiating
the March 16 contract is unchallenged and credited. The
record shows that Hansen , Kivett, and Avery were present
at nearly all the negotiation sessions . Hansen testified that
he was the person primarily active in handling the petitions
for the Board election; that he visited Respondent, accom-
panied by Avery, the first part of April 1973 to sign up new
members , and that he told James Hunt that he felt he rep-
resented the residual employees ; that Avery was with him
during the conversation with Respondent 's representatives
at Templin's Restaurant on May 8 , when picketing and
possible future negotiations were discussed . Kivett testified
at length , and there was no indication that he objected in
any manner to Hansen 's filing of the charge herein, or to
Hansen's requesting that Respondent bargain for the resid-
ual employees . Avery testified to an active part in the pick-
eting activity at Respondent's jobsites , including the print-
ing of picket signs . The foregoing testimony is credited,
and largely supported by other testimony or unchallenged
by Respondent . Finally , there is no indication in the record
that Respondent ever based its refusal to bargain on any
alleged lack of authority held by Hansen ; the only basis of
refusal to recognize the Union was the alleged waiver.
In view of the foregoing, it is clear that Hansen acted for
the joint representative when he requested that Respondent
bargain, and it is so found.
4. Minor issue raised by Respondent
Respondent raised a minor issue, and alleged that the
complaint should be dismissed." It was alleged that the
complaint was not timely filed, because it is dated more
than 6 months after a charge from which the complaint
varies materially. Respondent quotes no authority for its
position, and none appears.
It is found that there is no material variance between the
charge and the complaint. Further, if Respondent felt that
clarification of the complaint was necessary, or that a mo-
tion was in order prior to answer, there was ample time for
such action during the pleading stage of this controversy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondent's activities set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate , and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall order that it cease
and desist therefrom, and upon request, bargain collec-
tively with the Union and the other joint representatives,
Laborers International Union of North America, Local
No. 238, AFL-CIO, and Teamsters Local Union No. 690,
affiliated with Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent, as
the exclusive bargaining representative of all employees in
6 Respondent's motion to dismiss, made at the hearing , hereby is denied
as having no legal basis
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
No. 370, AFL-CIO, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Hunt Brothers Construc-
tion , Inc., at its Coeur d 'Alene, Idaho, operations, exclud-
ing all office clerical employees , carpenters, guards, and
supervisors as defined in the Act , constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The captioned labor organization , together with La-
borers International Union of North America , Local No.
238, AFL-CIO, and Teamsters Local Union No . 690, affi-
liated with Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Independent , is the ex-
clusive (joint) representative of all employees in the afore-
said appropriate unit for the purpose of collective bargain-
ing.
5. By refusing, on or about April 1, 1973, and at all
times thereafter , to bargain collectively with the Union and
the two other above-described labor organizations as the
exclusive (joint) bargaining representative of all employees
of Respondent in the appropriate unit , Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain , Respondent has
interfered with , restrained , and coerced, and is interfering
with, restraining, and coercing, employees in the exercise
of the rights guaranteed to them in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]