Hunt Brothers Construction, Inc.

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.]