Granite-Ball-Grove

National Labor Relations Board - Board Decisions

Mar 5, 1979

240 N.L.R.B. 1173 (N.L.R.B. 1979)

GRANITE-BALL-GROVES 1173
Granite-Ball-Groves, a Joint Venture (comprised of
Granite Construction Company, Gordon H. Ball,
Inc., and S. J. Groves & Sons Company) and Oper-
ating Engineers Local Union No. 3, International
Union of Operating Engineers, AFL-CIO
Associated General Contractors of California, Inc.,
and Operating Engineers Local Union No. 3, Inter-
national Union of Operating Engineers, AFL-CIO.
Cases 32-CA-751 and 32-CA-999
March 5, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.LO
AND TRL ESDALE
On December 19, 1978, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below,
and hereby orders that Respondent Granite-Ball-
Groves, a Joint Venture (comprised of Granite Con-
struction Company, Gordon H. Ball, Inc., and S. J.
Groves & Sons Company), Fresno, California, and
Respondent Associated General Contractors of Cali-
fornia, Inc., Sacramento and Oakland, California,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
240 NLRB No. 165
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally and without prior
notice to and discussion with Operating Engi-
neers Local Union No. 3, International Union
of Operating Engineers, AFL-CIO, institute or
alter the rentals charged for its members' occu-
pancy of trailer spaces at the trailer park operat-
ed by Granite-Ball-Groves at the Helms project.
WE WILt. NOT refuse to discuss with the Union
its proposals concerning the rentals referred to
above.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed under the
Act.
WE WIL L, upon request, bargain with that
Union concerning its proposals for changes in
the rentals charged its members for their occu-
pancy of those trailer spaces, retroactive to the
date such occupancy and initial charge com-
menced.
WE WI.L reduce to writing and sign any agree-
ment or agreements we reach as a result of such
bargaining.
ASSOCIATED GENERAL CONTRACTORS OF
CALIFORNIA. INC
GRAN ITE-BALL-G ROVEs
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN. Administrative Law Judge: On Au-
gust 15, 1978, I conducted a hearing at Fresno, California,
to hear issues raised by complaints issued in Case 32-CA-
751 on May 26, 1978, and Case 32-CA-999 on July 20,
1978, on the basis of charges filed by Operating Engineers
Local Union No. 3, International Union of Operating En-
gineers, AFL-CIO.' on February 27, 1978, and June 12,
1978, respectively. In view of the commonality of the issues
and in the interests of economy and expedition, the cases
were consolidated for hearing and decisional purposes on
July 20, 1978.
The complaints allege that Granite-Ball-Groves, a joint
venture (comprised of Granite Construction Co., Gordon
H. Ball, Inc., and S.J. Groves & Sons Co.) 2 and Associated
General Contractors of California, Inc. 3 violated Section
i Hereafter called the Union.
: Hereafter called GBG
Hereafter called AGC.
GRANITE-BALL-GROVES 73
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)( ) and (5) of the National Labor Relations Act, as
amended (hereafter called the Act), by refusing to bargain
with the Union concerning rentals charged to GBG em-
ployees represented by the Union for spaces within a trail-
er park built and managed by GBG to house employees of
GBG and Pacific Gas & Electric Co. (hereafter called
PGE) at a mountain worksite known as the Helms project.
GBG and AGC deny they refused to bargain with the
Union concerning the rentals in question and contend that
in any event such refusal should not be held to have vio-
lated the Act because:
1. The rentals were not mandatory subjects of collective
bargaining under the Act;
2. Even if they were, it has been the past practice of the
parties to refrain from bargaining collectively during the
term of their successive agreements over subjects not cov-
ered thereby, the subject of trailer park rentals was not
covered by the agreement in effect at times pertinent, and
AGC and GBG should not be required to depart from that
practice:
3. A multiemployer bargaining agent should not be held
to the bargaining requirements of a single or individual
employer.
The issues before me for determination are:
1. Whether AGC and GBG refused to bargain with the
Union concerning the rentals;
2. If so, whether the rentals were mandatory subjects for
collective bargaining;
3. If so, whether the parties followed the practice of re-
fraining from bargaining over subjects not covered by
agreements between them during the term of such agree-
ments;
4. If so, whether that practice relieved GBG and AGC
of any duty to bargain with the Union concerning the trail-
er park rentals;
5. Whether AGC. as bargaining agent for a multiem-
ployer association should be subject to the same bargaining
obligations as a single employer.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been filed by counsel for the General Counsel, the
Union, and the Respondents.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FA('T
1. JURISDI('ION AND LABOR ORGANIZA1iON
The complaints alleged, the answers admitted, and I find
that at all pertinent times AGC and GBG were employers
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
40 jen at all times pertinent waits Vice President of Granite (onstructiin
Co., one of the three joint venturers comprising (;B(. Granite was assigned
management responsibilities for the project hb the joint enturers, and
Ojien was charged with lhbor relations responsibility b (iBi. he corm-
II THE ALLFGFI) NFAIR LABOR PRA(IICE
A. The Unit and the Unionis Representative Status
On June 16, 1977, the AGC and the Union executed an
agreement in which, inter alia, AGC on behalf of its mem-
ber-employers recognized the Union as the exclusive col-
lective-bargaining representative of numerous classifica-
tions of employees of those member-employers assigned to
perform work described in the agreement. That agreement
was the latest in a succession of agreements containing
similar provisions. It is scheduled to terminate on June 15.
1980. All three employer-joint venturers known as GBG at
all pertinent times were members of AGC and bound by
the agreements.
The complaints alleged, the answers admitted. and I find
that at all pertinent times a unit consisting of the employ-
ees of the employer-members of AGC in classifications
performing work set out in the agreement just noted, in-
cluding employees of GBG, constituted and constitutes an
appropriate unit for collective-bargaining purposes within
the meaning of Section 9 of the Act, and the Union repre-
sented a majority of the employees therein.
B. The Project
On March 15, 1977, GBG entered into a contract with
PGE to construct tunnels, a powerhouse, dormitories, a
mess hall, a trailer park, and related facilities between two
lakes on public lands in a mountain range approximately
80 miles east of Fresno, California. Work on the project
commenced in April 1977, and is scheduled for completion
in about September 1981. A maximum or peak work force
of 450-500 employees and year-round work are planned.
C. The Alleged Refusal To Bargain
GBC conducted a prejob conference with the Union and
unions representing other craftsmen it expected to employ
on the project on April 18, 1977. A.V. Otjen acted as
GBG's spokesman.4 Claude Odom and Jerry Bennett rep-
resented the Union at the conference. Otjen discussed the
job location, the construction planned, the manning re-
quirements, and (in view of the remote location of the proj-
ect, its inaccessibility during portions of the year, and scar-
city of housing in the area), 6 GBG's plans for erecting two
plaint in Case 32 -CA 751 alleged, the answer admitted. and I find that at
all pertinent times Otjen as an officer supervisor, and agent of GBG.
acting otn its behalf within the meaning of the Act.
Odom was the [Union's district representative and Bennett was the
Il ion's district business representative for the district or area wherein the
project was located
T lhe site was located in a mountainous area reached by a 2-lane road
often impassable during periods of heavs snowfall, over 4 hours' drive from
the nearest cits of an) consequence. Fresno. 80 miles away a nearer town
Shavrer (38 mliles avas) had very hlimited housing accolrmodations; the two
lakes (Wishon and Courtwrightl had a few cabins and summer homes avail-
able for rental: and a few small motels were close by Camping in the public
areas s.als oult olf the qtiesion due to( Forest Service rules limiting occupancy
GRANITE-BALL-GROVES 1175
dormitories for occupancy by single employees and a trail-
er park for occupancy by families while the project was
under construction. It was announced (both orally and in a
document distributed at the conference) that dormitory oc-
cupants would be charged the amount they received as
subsistence pay under the AGC areements with the vari-
ous unions for room and board, while the trailer park
rental charge had not been established.
Odom and Bennett testified that Odom told Otjen the
Union wanted to discuss the trailer park rentals (and rules
governing occupancy) before they were placed in effect;
Otjen did not deny Odom made such request, stating he
did not recall it. In view of the corroborative testimony of
Odom and Bennett and the lack of a denial, I credit the
testimony of Odom and Bennett and find that Odom asked
Otjen on April 18, 1977, to discuss the trailer park rules
and rentals prior to their institution.
Between April and June of 1977, Otjen and Odom par-
ticipated in negotiation of the 1977-80 AGC-Union agree-
ment referred to above; Otjen participated as a representa-
tive of AGC. The subject of trailer park rentals was neither
brought up nor discussed during the negotiations.
In October 1977, the trailer park was completed and
opened. Two hundred twenty-five spaces were available,
with power and water hookup. Sanitary, garbage disposal.
and laundry facilities were provid, plus a school. First pri-
ority was given to PGE and GBG management personnel
for occupancy, with the balance of the spaces assigned to
craftsmen employed at the. site.8 GBG employed a full-
time manager for the trailer park, with responsibility for
assigning spaces, collecting rentals, enforcing the rules and
running the park. PGE personnel were charged $75 per
month for the trailer spaces they occupied (per GBG-PGE
agreement), and the craftsmen were charged $90 per
month. The record does not reflect what, if anything, GBG
supervisory or management personnel were charged. The
craftsmen were required by GBG to sign rental agreements
requiring their payment of $90 per month for the spaces
they occupied and further requiring their compliance with
trailer park regulations issued by GBG.9
The following month Bennett learned of GBG's unilater-
al institution of the trailer park rules and regulations and
its requirement that the Union's members agree to pay a
rental of $90 per month and comply with the rules and
regulations as a condition for occupancy of the trailer park.
He passed on that information to Odom.
Odom telephoned Otjen. Otjen stated he was unaware of
the existence of the rental agreements and the rules and
regulations for the trailer park. Odom suggested he secure
copies and requested a date to meet and bargain over their
Ito a short period 114-dav maximum)
The subsistence allowance established b, A(' agreements wtllh IniIos I
other than the lnion-specified subsistence pasments was $14 per da. a.ind
Otjen announced that the room and board charges would he the ame fig.-
ure. Otjen and Odom agreed that the same figure would he paid to and
charged the Union's members. since the A(i-t.nilon agreement did not
specify that figure.
Approxilmatel 50 spaces were occupied bh PGi£ and (iGBH(G mamge-
ment personnel, the balance hb craftsmen.
PGE and OB(G management personnel ,were not required to sign agree-
ments
terms. Otjen agreed to meet with Odom and discuss the
matter in early December. Prior to the meeting. Odom
learned that the PGE personnel occupying spaces at the
trailer park were paying less rent than the craftsmen.
When Otjen met with Odom in early December, Odom's
first and major objection was to the higher rental charge
for craftsmen than that paid by PGE personnel; he also
went over the entire agreement and the rules and regula-
tions, stating objections as he went, with particular objec-
tion to a provision requiring the craftsmen to remove snow
from their trailers, vehicles, and spaces on the ground of
physical impossibility and GBG's commitment to Fresno
County to remove snow as required (a commitment under-
taken in order to secure the necessary county permit to
operate the trailer park) and a provision empowering GBG
to eject any occupant engaging in "immoral conduct."
Otjen registered Odom's objections and informed Odom be
would consult with his people and get back to Odom. A
few days later Otjen telephoned Odom and told him GBG
would not make any changes in either the rentals, the
rental agreement, or the rules and regulations. Odom re-
plied that, in view of Otjen's position, he would have to
review his options-a rent strike, pulling his members off
the job, filing an unfair labor practice, requesting the coun-
ty to revoke the trailer park operational permit, requesting
the county to force GBG to undertake snow removal, etc.
In response to members' complaints of unsafe conditions
at the trailer park due to snow conditions, Odom and Ben-
nett went to the site in early January of 1978. They found
a snow cover of approximately 15 feet at the site, the roads
within the park blocked, the trailer park occupants' autos
completely covered and the windows and roofs of the trail-
ers completely covered with snow. Odom contacted Joe
Luco, GBG's project manager at the site." Odom advised
Luco that the employees were incapable of digging out the
roads, cars, and trailers and demanded that GBG remove
the snow, stating it was unsafe to allow the situation to
continue. Luco replied that GBG would not clear the trail-
ers and cars because it was the obligation of the employees
to do that: GBG would only remove the snow from the
trailers and cars of GBG's supervisory personnel and PGE
personnel. Odom renewed his requests and arguments.
Luco finally agreed to use GBG snow removal equipment
to clear the roads and cars but insisted that the employees
would have to clear their trailers.
Odom returned to the park the next day and learned that
Luco had not carried out his promises. Odom toured the
jobsite, found several alleged safety violations, and threat-
ened Luco with closing down the job until they were
remedied. Odom also renewed his demand for snow re-
moval at the trailer park. Luco promised to start snow re-
moval on the roads and autos within the park immediately
but claimed he did not have authority to direct removal of
snow from employee trailers. Questioned concerning who
did have that authority, Luco named Leo Westwater of
0Odorm's objection was based on the vagueness of the language: he took
the position that the language either should be removed or what constituted
"immoral conduct" should be defined.
I find that at all material times Luco. as GBG's project manager in
overall charge of the (B(G's operatilns at the project. was a supervisor and
agent of GB(; oacting on its behalf
G R A NIT E-B A LL- G R O V E S 1175~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Granite Construction Co. Odom immediately telephoned
Westwater on Luco's telephone; Westwater advised Odom
that Otjen was in charge of the project and had such au-
thority. Otjen later telephoned Odom at Luco's office, with
Chuck Ayers, AGC's labor relations director, on an exten-
sion.' 2 Luco was on an extension telephone. Odom told
Otjen that GBG had to remove the snow from employee
trailers, they were unsafe to live in with the heavy weight
on their roofs, and the men were incapable of removing the
snow individually. Ayers replied that the rental agreement
required employees to remove the snow from their trailers.
Odom stated that the rental agreement was invalid, since
the rental charge and conditions therein were not discussed
with the Union prior to institution, despite his request for
such discussion. Ayers replied that management had no
duty to bargain about those matters, since they were not
subjects covered by the AGCUnion agreement. Odom
hung up the telephone.
Work came to a standstill at the site.
Otjen telephoned Dale Marr, the Union's business man-
ager, and arranged for a conference in San Francisco, at
Marr's office. Otjen, Ayers, Bennett, Odom, and Marr met
at Marr's office on January 17, 1978. Odom stated that
while he knew the purpose of the gathering was to discuss
the snow removal problem at the trailer park, he wanted to
relate the entire course of the dispute, from the time he
requested negotiations over the trailer park rents, rules,
and regulations, through their institution, his objections,
and GBG and AGC's refusal to negotiate. He then related
the sequence of events and gave Marr correspondence be-
tween the county and GBG containing language setting
out GBG's snow removal responsibility. Marr read the cor-
respondence and said that the correspondence clearly indi-
cated GBG was responsible for snow removal from em-
ployee trailers and that if GBG did not remove it, the
Union would shut down the job. Otjen agreed to assign
GBG men and equipment to such removal if the Union
would assure the employees' shifting of their autos and
material adjacent to the trailers so GBG's equipment could
be brought up to the trailers. The Union agreed to secure
employee cooperation and the meeting adjourned. Otjen
and Odom telephoned Luco, advised him of the agreement,
and Otjen instructed Luco to assign the necessary equip-
ment to the job. Luco asked Odom to send Bennett to the
jobsite to secure employee cooperation. Odom agreed. In a
later conversation, Odom renewed his request that Otjen
meet and discuss with him the trailer park rentals, that the
snow removal agreement did not settle everything.' 3 Otjen
was noncommittal.
Otjen telephoned Odom the following week and told
Odom the trailer park rentals, rules, and regulations were
outside the AGC-Union agreement and not a proper sub-
ject for negotiations. Odom replied that, in view of Otjen's
refusal to bargain, he would have to consider his options
12 The complaint versus AGC alleged. AGC's answer admitted. and I find
that at all times material Ayers was an agent of AGC, acting on its behalf.
13 One of the provisions of the rental agreement provided that the lessee-
employee would remove any snow on his trailer.
(repeating the same options he enumerated on Otjen's De-
cember 1977 refusal to negotiate).
Odom subsequently wrote to Otjen, asking Otjen to meet
and bargain with him over the Union's request for a reduc-
tion in trailer park rentals charged his members to the $75
charged the PGE personnel. Otjen replied by letter, reject-
ing the request on the ground that the rentals were not a
proper subject for collective bargaining.
Odom then filed charges with the Regional Office alleg-
ing that GBG and AGC had violated Section 8(a)(l) and
(5) of the Act by failing and refusing to bargain with the
Union concerning both the trailer park space rentals and
the trailer park rules and regulations. Counsel for the Gen-
eral Counsel subsequently ruled that the parties had bar-
gained over the trailer park rules and regulations and dis-
missed those portions of the charges so alleging, but issued
the complaints before me for determination on the ground
that GBG and AGC had failed and refused to bargain with
the Union concerning the trailer park space rentals.
D. Analysis and Conclusions
1. The alleged refusal to bargain
While both AGC and GBG denied in their answers to
the respective complaints issued against them that they had
failed or refused to bargain with the Union concerning the
rentals charged to GBG employees represented by the
Union employed at the project for their occupancy of
spaces with the trailer park, the record establishes the con-
trary.
Findings have been entered above that GBG began in
October 1977 to require union members occupying spaces
in the trailer park to sign lease agreements requiring them
to pay $90 per month or vacate their spaces, despite
Odom's request at the April 1977 prejob conference for
notice and the opportunity to discuss such charges prior to
their institution. Findings also have been entered that rep-
resentatives of both AGC (Ayers) and GBG (Otjen) un-
equivocally refused to bargain with Odom when he learned
of GBG's unilateral institution of a rental charge for his
members which exceeded GBG's charge to PGE personnel
and requested bargaining over his request for a reduction
of the rental charged his members to the amount charged
PGE personnel, on the ground that the issue was not a
proper subject of collective bargaining.
In view of those findings, I find and conclude that both
AGC and GBG failed and refused to bargain with the
Union concerning rentals charged its members by GBG
for its trailer park spaces occupied by and leased to those
members.
2. Were GBG and AGC required under the Act to
bargain over the rentals?
AGC and GBG assert that even though they may have
failed or refused to bargain with the Union concerning the
trailer spaces occupied by its members, such failure or re-
fusal was not violative of the Act because they were not
obligated under the Act to bargain with the Union over
that subject, asserting that it did not involve "rates of pay,
GRAN ITE-BALL-GROVES 1177
wages, hours of employment or other conditions of em-
ployment." 4
It is obvious that GBG built dormitories and a trailer
park at the worksiteto enable it to recruit a work force
living in accommodations which assured their continuous
availability for work and timely completion of the project.
Its planning was wise, for despite extremely adverse weath-
er conditions, during which Luco estimated that it would
take 4 hours of travel each way to reach the job from the
nearest city of any consequence (Fresno, 80 miles away
over a two-lane mountain road), GBG only lost I day's
work at the job. 5 The reason is readily apparent; at the
time weather conditions were adverse, there were approxi-
mately 145 workmen living in the dormitories and 200
more living in the trailer park. Were GBG to have relied on
a work force drawn from the few housing facilities in the
area (see fn. 6 above), it is doubtful so little interruption in
the work flow would have occurred.
The convenience and economic benefit to the employees
from the arrangement is also evident; other housing ac-
commodations so cheap and conveniently located were no-
nexistent, so the trailers became a highly valuable and de-
sirable job incentive.
In such circumstances, both the Board and reviewing
courts have held that the rental of employer-furnished
housing constitutes an integral part of the employer-em-
ployee relationship and is thus necessarily included among
the "conditions of employment" the employer is obligated
to bargain over with the Union representing the employees
who occupy such housing.'6
On the basis of the foregoing, I find and conclude that
the amount of rent charged by GBG to members of the
Union employed at the project for their occupancy of
spaces within the trailer park was an integral part of the
GBGemployee relationship and thus a condition of em-
ployment that GBG and its agent, AGC, were obliged to
bargain about with the Union.
3. Did the Union waive its right to require AGC & GBG
to bargain over the rentals?
AGC and GBG contend that the parties have developed
the practice of refraining from requiring one another to
bargain over subjects not covered by their successive col-
lective-bargaining agreements during the term thereof, re-
sulting in an implied waiver of their right to such bargain-
ing. Counsel for the General Counsel contend there neither
has been such practice nor, even assuming arguendo there
was, can such waiver be implied.
At the outset it is noted that the collective-bargaining
agreement between the parties does not contain the provi-
'4 See Secs. 8(a)5) and
9
(a) of the Act.
5 Testimony of Luco.
Elgin Standard Brick Manufacturing Co. 90 NLRB 1467 (1950); Hart
Cotton Mills. Inc., 91 NLRB 728 (1950): enforcement denied on other
grounds. 190 F.2d 964 (4th Cir. 1951). Lehigh Portland Cement Co., 101
NLRB 529 (1952), enfd.. 205 F.2d 821 (4th Cir. 1953): American Smelting &
Refining Co., 167 NLRB 204 (1967), enfd. 406 F.2d 562 (9th Cir. 1969). cert
denied, 89 S.Ct. 1998 (1969): American Smelting & Refining Co. 174 NLRB
764 (1969).
sion, common to many such agreements, waiving the rights
of the parties to require one another to bargain over sub-
jects not covered by the agreement during its term. With
the apparent sophistication of the parties, it is reasonable
to conclude that such a provision is absent from their
agreement by design, not by accident.
It has generally been the position of the Board that the
waiver of such an important statutory right will be accord-
ed weight only if it is express, clear, and unequivocal.'7
It is undisputed that the current agreement between the
parties does not cover the subject of employer-supplied
housing, that the subject of employer-supplied housing was
not discussed in the bargaining which led to the execution
of that agreement, and that the agreement does not contain
a "zipper" (waiver) provision.
Under these circumstances, it is clear that the Union at
no time made a clear, express, and unequivocal waiver of
its statutory right to bargain over the rentals charged by
GBG for the trailer space rentals, and I so find and con-
clude.
Nor is the company argument that the parties never have
bargained over subjects not covered by an agreement dur-
ing its term supported by the evidence. To the contrary,
GBG bargained with the Union over the charges it was
going to levy on those union members who chose to live in
the dormitories and the subsistence payments it would
make to those members for their room and board: in addi-
tion, GBG has bargained with the Union and reached
agreement with it over inclusion of the Union's members at
a rock, sand, and gravel plant under the AGC-Union con-
struction agreement (they had been covered by an AGC-
Union sand and gravel agreement) and bargained with and
reached agreement with the Union, settling a jurisdictional
dispute between the Union and one of its sister locals (Lo-
cal 12). Odom testified without contradiction (his testi-
mony is credited) concerning other agreements with indi-
vidual employers covered by the AGC-Union agreement
from time to time concerning rates of pay, wages, hours,
and working conditions of its members.
I therefore find and conclude that the AGC and GBG
argument that the parties covered by the current AGC-
Union agreement have followed the practice of refraining
from requiring one another to bargain over subjects not
covered by that agreement and its predecessor agreements
during the term thereof is not supported by the evidence.
I thus conclude that the Union neither expressly nor im-
pliedly waived its statutory right to bargain with GBG and
its agent AGC over the wages, rates of pay, hours, and
conditions of employment of its members employed by
GBG, including the rentals charged by GBG to the
Union's members for occupancy of trailer spaces provided
by GBG at the project.
|' Tidewater Associated Oil Co.. 85 NLRB 1096 (1949); Jacobs Mjg. Co.,
94 NLRB 1214 (1951), enfd.. 196 F.2d 680 (2d Cir. 1952); California Port-
land Cement Coa, 101 NLRB 1436 (1952): Item Co. 108 NLRB 1634 (1954)
enfd.. 220 F.2d 956 (5th Cir. 1955) cert denied 350 UIS. 836 rehearing
denied 350 U.S. 905 (1956); Timken Roller Bearing Co.. 138 NLRB 15
(1962). enfd 325 F.2d 746 (6th (ir 1963).
G R A N IT E -B A L L -G R O V E S 1 7~ ~ ~ ~ ~ ~ ~ ~ ~
_ _ _ _ _
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Should AGC as representative of a multiemployer
association be relieved of any obligation to bargain with
the Union over subjects not covered by the AGC-Union
agreement during its term?
AGC and GBG contend that AGC. as the authorized
bargaining agent of GBG and many other employers cov-
ered by the AGC-Union agreement, should not be required
under the statute to bargain with the Union during the
term of that agreement over subjects not covered by the
agreement on the ground that it places too great a burden
on the association and "would create havoc in the con-
struction industry."
In essence, AGC and GBG urge Board adoption of a
policy relieving association representatives from duties re-
quired of individual employers.
I find the contention without merit. It is impossible for
the parties to any collective-bargaining agreement, whether
it covers a single employer or a multitude of employers, to
visualize (much less resolve) all the disputes which may
arise between them and their employee representatives
concerning the rates of pay, wages, hours, and conditions
of employment of their employees within one week of their
execution of an agreement, and the current (and preceding)
agreement between the parties covers 3 years! Problems
within the subject areas of wages, etc., arise constantly and
are much better resolved when they arise by mutual discus-
sion and agreement, rather than exacerbated by a 2- or
3-year delay in their resolution.
I thus see no reason for imposing a lesser duty on repre-
sentatives of multiemployer associations than that imposed
on their individual employer-members, and believe no such
distinction should apply.
On the basis of the foregoing, I find and conclude that
AGC and GBG violated Section 8(aX)() and (5) by failing
to notify and bargain with the Union over the rentals
charged its members for trailer spaces at the project prior
to their unilateral institution and by refusing to bargain
with the Union concerning its requested modification or
change of the rental charge levied.
CONCI.USIONS OF LAW
I. At all times material AGC and GBG were employers
engaged in commerce in a business affecting commerce,
and the Union was a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
2. At all pertinent times Otjen and Ayers were officers,
agents, and supervisors of GBG and AGC within the
meaning of Section 2(1 1) of the Act.
3. At all pertinent times the Union has represented a
majority of the employees of employers covered by a cur-
rent agreement between AGC and the Union within an
appropriate unit under the Act, including employees of
GBG.
4. AGC and GBG violated Section 8(a)(1) and (5) of the
Act by failing to notify and bargain with the Union over
the rentals charged the Union's members employed at the
project for CiBG-provided trailer spaces prior to the unila-
teral levy of such charges and by refusing to bargain with
the Union concerning its requested modification of such
charges.
5. The aforesaid unfair labor practices affected and af-
fect commerce as defined in the Act.
Tilm RFMEI)Y
Having found that AGC and GBG engaged in unfair
labor practices, I shall recommend that they cease and de-
sist therefrom and take affirmative action designed to ef-
fectuate the pruposes of the Act. Having found that AGC
and GBG violated the Act by unilaterally instituting and
failing and refusing to bargain with the Union over rentals
charged the Union's members for their occupancy of trail-
er spaces at the project despite a Union request for notice
and an opportunity to bargain over such charges prior to
their institution and later request for modification thereof,
I shall recommend that AGC and GBG be directed to bar-
gain with the Union at its request concerning the charges
in question, retroactive to the date the charges were insti-
tuted, and reduce to writing and execute any agreement
reached as a result of such bargaining, as well as post the
attached notice.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I recommend the issuance of the following:
ORDER
The Respondents, Granite-Ball-Groves, a Joint Venture
(comprised of Granite Construction Company, Gordon H.
Ball, Inc., and S.J. Groves & Sons Company), Fresno, Cali-
fornia, and Respondent Associated General Contractors of
California, Inc., Sacramento and Oakland, California, their
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unilaterally and without prior discussion with the
Union instituting or altering charges levied on the Union's
members for their occupancy of trailer spaces provided by
GBG at the project.
(b) Refusing to discuss the Union's proposals concern-
ing the charges to be levied on its members for their occu-
pancy of such spaces.
2. Take the following action designed to effectuate the
purposes of the Act:
(a) Bargain with the Union at its request concerning the
rentals charged the Union's members for occupancy of
trailer spaces furnished by GBG at the project, retroactive
to the date such occupancy and charges began.
(b) Reduce to writing and execute any agreements
reached as a result of that bargaining.
(c) Post at the project copies of the attached notice
marked "Appendix." Copies of the notice, on forms pro-
Is In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National L.abor Relations Board, the findings.
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
9 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National l.abor Relations Board" shall read "Posted Pursuant to a
GRANITE-BALL-GROVES 1179
vided by the Regional Director for Region 32. shall be
signed by authorized representatives of AGC and GBG
and posted immediately upon receipt thereof and main-
Judgment of he United States Court of Appeals inforcing an Order of the
National I.abor Relations Board''
tained for 60 consecutive days thereafter. in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
AGC and GBG to insure that the notices are not altered.
defaced, or covered by other material.
(d) Notify the Regional Director for Region 32, in writ-
ing. within 20 days from the date of this Order, what steps
AGC(' and GBG have taken to comply herewith.