Lamont Pipe Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 12, AFL-CIO; Plumbers Union Local 460, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (AFL-CIO) and Lamont Pipe Company, Inc. Case 31 CP 245 November 28, 1978 DECISION AND ORDER BY CHAIRMAN FANNIN(; AND MEMBERS JENKINS AND) PENELLO Upon charges' duly filed by John W. Prager, Jr. Esq., in behalf of Lamont Pipe Company, Inc., on February 21, 1978, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 31, issued a complaint and notice of hearing on April 11, 1978, against International Union of Operating Engineers, Local 12, AFL CIO, herein called Engineers, and Plumbers Union Local 460, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada (AFL-CIO), herein called Plumbers. The complaint alleges that Respon- dents have engaged in, and are engaging in, certain unfair labor practices within the meaning of Section 8(b)(7)(B) of the National Labor Relations Act, as amended. Copies of the charge and of the complaint and notice of hearing were duly served on the parties. On April 20 and 18, 1978, Respondents Engineers and Plumbers, respectively, filed answers denying the commission of any unfair labor practices. Thereafter, the parties entered into a stipulation of facts and jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and an order. The parties waived a hearing before, and the making of findings of fact and con- clusions of law and issuance of a decision by an Ad- ministrative Law Judge. The parties also stipulated that no oral testimony is necessary or desired by any of the parties, and agreed that the charge, the com- plaint, and the stipulation of facts, including the ex- hibits attached thereto, constitute the entire record in this proceeding. On August 8, 1978, the Board issued its order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the General Counsel and Engineers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I The charge, but not the complaint, included i eamsters nion. L ocal 87, as a respondent. tional Labor Relations Board has delegated its authori- ty in this proceeding to a three-member panel. Upon the basis of the stipulations, including the exhibits attached thereto, the briefs, and the entire record in this proceeding, the Board makes the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, Lamont Pipe Company, Inc., is a California corporation with an office and principal place of business located at 23800 Weedpatch High- way, Bakersfield, California, where it is engaged in the manufacturer and installation of concrete pipe and in the manufacturer and delivery of ready-mix concrete. In the course and conduct of its business, the Employer annually sells goods and services val- ued in excess of $50,000 to customers or business enterprises within the State of California which meet one of the Board's jurisdictional standards other than the indirect inflow or indirect outflow standard. The complaint alleges, the parties stipulated, and we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effecutate the purposes of the Act to assert jurisdiction herein. 1. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the parties stipulated, and we find that Engineers and Plumbers are labor orga- nizations within the meaning of Section 2(5) of the Act. 111 tHE UNFAIR L ABOR PRACTICES Prior to 1973, a business entity called Arvin-La- mont Redi-Mix, herein called Arvin-Lamont, was en- gaged in the manufacture of ready-mix concrete in the Bakersfield, California, area. From February 1967 through January 1973, Arvin-Lamont and Engi- neers had been parties to collective-bargaining agree- ments. In 1973 Arvin-Lamont, which has no business relationship with the Employer, went out of business. In 1976, the Employer began selling concrete from its Bakersfield, California, premises. The sign at the en- trance to its premises and on its trucks bore the leg- end "Iamont Pipe Company, Inc.-Arvin-Lamont Redi-Mix." In October 1976, the Regional Director for Region 31 issued a Decision and Direction of Election in Case 31-RC-3603 wherein he directed an election in a unit of production and maintenance employees em- 500 OPERATING ENGINEERS, LOCAL 12, AFL-CIO ployed by the Employer. A valid election was con- ducted on November 19, 1976, in which the Peti- tioner therein, United Cement, Lime and Gypsum Workers International Union, AFL-CIO, herein called Cement Workers, did not receive a majority of the votes cast. On March 9, 1977, the Regional Di- rector issued a supplemental Decision and Certifica- tion of Results of Election. Subsequently, the Board denied Cement Workers request for review of the Re- gional Director's supplemental decision. On or about February 20, 1978, 2 and continuing until February 27, Engineers picketed the Employer at its place of business with signs declaring that "Ar- vin-Lamont Redi-Mix Refuses to Recognize--Engi- neers." From approximately February 8, 1978, and continuing until February 18, during which time the Employer's employees were engaged in installing pipe and manufacturing concrete at a jobsite, Plumb- ers picketed the site with signs bearing the legend "Employees of Lamont Pipe-Non-Union." Plumb- ers admits that a purpose of the picketing was to gain recognition as exclusive bargaining representative of the Employer's employees engaged in the installation of concrete pipe, and Engineers admits a like purpose with regard to the Employer's employees engaged in the manufacture of ready-mix concrete. Both Unions further admit that the classifications of employees sought were included in the bargaining unit involved in the election conducted in Case 3 1-RC-3603. The record also shows that neither Union contact- ed Regional Offices 21 or 31 (formerly Region 2 1) to ascertain whether an election in which the Employer or Arvin-Lamont had been a party had been con- ducted within the proscribed 12-month period, and that, while neither Regional Office has any record of having conducted an election in which Arvin-La- mont was a party, Region 31 has on file a record of the election in Case 31-RC-3603, in which the Em- ployer was a party. IV. DISCUSSION AND CONCLUSIONS Engineers argues that the evidence is insufficient to establish an 8(b)(7)(B) violation but that, if a vio- lation is found, the "unusual circumstances" herein warrant a remedy other than the traditional remedy prohibiting picketing of the Employer for a 12-month period commencing with the cessation of picketing. The substance of Engineers position is that the pro- tection afforded by Section 8(b)(7)(B) extends to an 2 The decisive date for determining when a valid election has been con- ducted is the date on which the Certification of Results of Election issues San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers. AFL CIO (APB Enterprises. Inc., d/b/a Perr'"s), 207 NLRB 199 (1973). employer who has participated in an election within the preceding 12 months if the proscribed picketing is directed to that employer. From this premise it argues that its picketing was not directed against the Em- ployer because it had no knowledge of (I) Arvin- LFamont's cessation of business, (2) the absence of a business relationship between Arvin-Lamont and the Employer, and (3) the election in Case 31 RC 3603. Further, it argues, its lack of such knowledge was compounded by the Employer's use of the Arvin-La- mont name on the Employer's plant sign and trucks, thereby causing it reasonably to believe that it was picketing Arvin-Lamont. Therefore, Engineers con- tinues, because its recognitional picketing was direct- ed to Arvin-lamont, which had not participated in an election within the preceding 12 months, an 8(b)(7)(B) violation is not sustainable. We find no merit in this position. It is well established that the purpose of Section 8(b)(7)(B) is to provide stability for the 12-month pe- riod during which Section 9(c)(3) of the Act bars a second election for the same unit by protecting an employer and its employees against the pressures of recognitional and organizational picketing by a union for the duration of that period.' A lack of knowledge of the election in Case 3 1 RC 3603 is not a defense; however, we do note that both Unions could have ascertained this information with reason- able diligence. An exercise of similar diligence by both Unions also could have cured their misconcep- tion of the Employer's true identity. We cannot find, therefore, that the framework within which the un- lawful picketing occurred constitutes circumstances which warrant a remedy other than the traditional one, which we shall order. Accordingly, we find that Respondent Engineers and Respondent Plumbers violated Section 8(b)(7)(B) of the Act by picketing the Employer with an object of forcing or requiring the Employer to recognize or bargain with each Respondent as a col- lective-bargaining representative of certain of its em- ployees, notwithstanding that neither Respondent was a certified representative of said employees and a valid election under Section 9(c) of the Act had been conducted within the preceding 12 months. V. TIHE FFFECT OF T1. I UNFAIR IABOR PRACTICES UPON COMMERCE The activities of Respondent Engineers and Plumbers set forth in section III, above, occurring in connection with the Employer's operations described lwren lr TspograXphla.' Union Vo 5, 'i afjiliared sith Mhe International 7Tpographical Union. A4FL CIO (Kansars Color Press, Inc ), 158 NLRB 1332 11966}. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in section I, above, have a close, intimate, and sub- stantial 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. VI. THE REMEDY Having found that Respondent Engineers and Re- spondent Plumbers have engaged in and are engag- ing in certain unfair labor practices, we shall order them to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the pol- icies of the Act. More specifically, and as indicated, supra, where Section 8(b)(7)(B) of the Act has been violated, the Board's usual practice is to ban picket- ing for I year from the date on which the unlawful picketing ceased. In accordance with such practice, the ban on picketing as to Engineers shall run I year from February 27, 1978, and, as to Plumbers, shall run I year from February 18, 1978, the respective dates on which Respondents ceased their picketing. CONCLUSIONS OF LAW 1. The Employer, Lamont Pipe Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent International Union of Operating Engineers, Local 12, AFL-CIO, and Respondent Plumbers Union Local 460, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Can- ada (AFL-CIO), are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the premises of Lamont Pipe Com- pany, Inc., on and after February 20, 1978, and by picketing a jobsite on and after February 8, 1978, when employees of Lamont Pipe Company, Inc., were engaged in installing pipe and manufacturing concrete, Respondent Engineers and Respondent Plumbers, respectively, have engaged in unfair labor practices in violation of Section 8(b)(7)(B) of the Act in that an object of such picketing was to force or require the Employer to recognize or bargain collec- tively with each Respondent as a representative of certain of the Employer's employees, notwithstand- ing that neither Respondent was a certified represen- tative of said employees and a valid election under Section 9(c) of the Act had been conducted within the preceding 12 months. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Inter- national Union of Operating Engineers, Local 12, AFL-CIO, and Respondent Plumbers Union Local 460, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada (AFL-CIO), Bakers- field, California, their officers, agents, and represen- tatives, shall: 1. Cease and desist from picketing or causing to be picketed Lamont Pipe Company, Inc., where an object thereof is forcing or requiring it to recognize or bargain with each said Union as the collective- bargaining representative of certain of its employees, where, within the 12 months preceding the picketing, a valid election under Section 9(c) of the Act has been conducted, in accordance with the provisions of the section herein entitled "The Remedy." 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at their respective business offices and meeting halls copies of the attached notices marked "Appendix A" and "Appendix B." 4 Copies of said notices, on forms provided by the Regional Director for Region 31, after being duly signed by an author- ized representative, shall be posted by each Respon- dent immediately upon receipt thereof, and be main- tained by them for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by said Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 31 signed copies of said notices for posting by La- mont Pipe Company, Inc., the Company willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply here- with. 4In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notices reading "Posted by Order of the National Labor Relations Board" shall cead "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 502 OPERATING ENGINEERS, LOCAL 12, AFL-CIO APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ~WE WILL NOT picket or cause to be picketed Lamont Pipe Company, Inc., for a period of 1 year from February 27, 1978, where an object thereof is to force or require said Company to recognize or bargain with us as the collective- bargaining representative of certain of its em- ployees in violation of Section 8(b)7)(B) of the National Labor Relations Act. INTERNATIONAL UNION OF OPERATING ENGI- NEERS, LOCAL 12, AFL-CIO APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed Lamont Pipe Company, Inc., for a period of I year from February 18, 1978, where an object thereof is to force or require said Company to recognize or bargain with us as the collective- bargaining representative of certain of its em- ployees in violation of Section 8(b)(7)(B) of the National Labor Relations Act. PLUMBERS UNION LOCAL 460, UNITED AssocI- ATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL-CIO) 503