Johnson Ready Mix Co.

JOHNSON READY MIX CO. 437 operations would not appear to meet the Siemons standard for the assertion of jurisdiction over nonretail enterprises. 4. In cases involving secondary activity by a union which may be violative of Section 8(b) (4) of the Act, where, as here, the primary employer's operations do not appear to meet the Board's jurisdic- tional standard, the Board will take into consideration for juris- dictional purposes not only the operations of the primary employer but also the entire operations of the secondary employers at the loca- tion affected by the alleged conduct involved.' As the Petitioner's picketing resulted in the stoppage of deliveries to the construction site by secondary employers, Fullerton, Block, and Willson, and in the prevention of other unnamed companies from entering the job- site, the operations of these secondary employers at the site affected by the picketing may be combined with those of the primary employer and the combined total may be considered in resolving the jurisdic- tional question. However, there is no indication as to the extent to which the Petitioner's picketing affected the secondary employers' constructon site operations. Under these circumstances, the Board is unable to make a meaningful jurisdictional determination herein. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations here present, the Board is unable to conclude whether or not it would assert jurisdiction herein. I Weibel Excavating Company, 137 NLRB 1788, and cases cited in footnote 1. Johnson Ready Mix Co. and General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 17-CA-1998. May 2, 1963 DECISION AND ORDER Upon charges duly filed by General Drivers and Helpers Union Local No. 554, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventeenth Region, issued a complaint dated July 31, 1962, against Johnson Ready Mix Co., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act as amended. Copies of the charges, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Union. 142 NLRB No. 50. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint alleges, in substance, that the Union was and is the exclusive collective-bargaining representative of certain employees of the Respondent in an appro- priate unit, and that on or about June 11, 1962, and at all times there- after, Respondent unlawfully refused to bargain with the Union. The Respondent's answer, filed August 4, 1962, admits certain juris- dictional and factual allegations of the complaint, but denies the commission of any unfair labor practices. On September 24, 1962, all parties to this proceeding entered into a stipulation of facts, and on October 3, 1962, jointly moved to trans- fer this proceeding directly to the Board for findings of fact, con- clusions of law, and Decision and Order. The motion stated that the parties waived their rights to a hearing before a Trial Examiner and to the issuance of an Intermediate Report and Recommended Order. The motion also provided that the charges, complaint, answer and stipulation of facts shall constitute the entire record in the case. On October 4,1962, the Board granted the parties' motion to transfer the case to the Board. Briefs were thereafter filed by the General Counsel and the Respondent. Upon the basis of the parties' stipula- tion of facts, the briefs, and the entire record in the case, the Board i makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Nebraska corporation, is and has been since on or about June 4, 1962, engaged in the preparation and wholesale delivery of ready-mixed concrete at and from its place of business located in Omaha, Nebraska. It is stipulated that Respondent in the course and conduct of its business will annually sell and ship products valued in excess of $50,000 to customers outside the State of Nebraska, and that Respondent will annually purchase materials and supplies valued in excess of $50,000 directly from supplies outside the State of Nebraska. The Respondent admits, and we find, that it is engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization as defined in Section 2 (5) of the Act. 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Rodgers , Fanning, and Brown]. JOHNSON READY MIX CO. III. TILE APPROPRIATE UNIT 439 The complaint alleged, and Respondent admits, that all truck- drivers, yardmen, mechanics, helpers, and laborers employed by Respondent at its plant at 4343 South 67th Street, Omaha, Nebraska, excluding all clerical employees, dispatchers, selectron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors as defined in the Act, constitute and, at all times material herein, constituted a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. We so find. IV. THE UNFAIR LABOR PRACTICES The stipulated facts show that after an electron was conducted on May 16, 1962, in Case No. 17-RC-3826, pursuant to a stipulation for certification upon consent election between Missouri Valley Ready Mix Concrete Co., Inc. (hereinafter referred to as Missouri ) and the Union, the Union was certified by the Board, on May 24, 1962, as the exclusive bargaining agent of Missouri's employees in the unit stipulated therein, which Ave find to be an appropriate unit.' Prior to June 1, 1962, Missouri, a Nebraska corporation, was en- gaged in the preparation and wholesale sale and delivery of ready- mixed concrete, its sole business, at and from its place of business located at 4343 South 67th Street, Omaha, Nebraska. Missouri had been losing money in its business, was insolvent on June 1, 1962, and subsequently was adjudged a bankrupt corporation by a United States district court. On or about June 1, 1962, Respondent purchased from Missouri the fixtures, equipment and machinery, including cement, truck and ma- chinery parts, and various supplies, used by Missouri in the conduct of its business. At the salve time, Respondent also purchased, from the lessor thereof, the land and building occupied by Missouri. Like- wise, it purchased from the lessor thereof, the trucks leased to and used by Missouri in the conduct of its business. Respondent, however, did not purchase any of Missouri's accounts receivable, nor did it assume any of Missouri's liabilities, obligations, or accounts payable. Further, it was agreed that Respondent had no obligation to hire any of Missouri employees. The parties stipulated that Respondent is not, and never has been associated with, or in any way connected with Missouri and that none of Respondent's officers or stockholders had, or has, any interest in or connection with Missouri. 'The certified Missouri unit was : all truckdrivers, yardmen, mechanics , helpers, and laborers located at Missouri's plant , 4343 South 67th Street, Omaha , Nebraska, excluding all clerical employees , dispatchers , selectron operators , laboratory technicians, professional engineers , salesmen , watchmen , guards, and supervisors as defined in the Act 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about June 1, 1962, Missouri ceased to operate its above- described business and went out of business. Concurrently, Missouri notified its employees of the sale of its business to Respondent, termi- nated its employees, and told the employees that, if they desired to work for Respondent, to contact Respondent for interviews. Since about June 4, 1962, Respondent has been engaged in its busi- ness set forth above, at the premises formerly occupied by Missouri. In the course and conduct of this business, Respondent has utilized the fixtures, equipment, machinery, and trucks used by Missouri and the land and building formerly occupied by Missouri. Respondent has continued to handle the same products handled by Missouri and has continued to serve as many of Missouri's customers as it has been able to keep on a profitable basis. On May 16, the date of the election mentioned above, Missouri em- ployed 83 employees who were eligible to vote in the election. On June 28, 1962, Respondent employed 56 employees in the unit we have found appropriate, of whom 36 had been employed by Missouri. The following table shows a comparison of Missouri's and Respondent's units : Missouri Missouri Respondent employees in Valley unit unit Respondent unit Truckdnvers ------------------------------------------------- 50 42 24 Yardmen- ---------------------------------------------------- 3 2 2 Mechanics---------------------------------------------------- 21 7 7 Helpers- -------------------------------------------------- 5 3 3 Laborers----------------------------------------------------- 4 2 0 Total --- ------------------------------------ 83 56 36 It was stipulated that the reduction iii the number of mechanics in the Respondent's unit is due to the fact that Respondent, in contrast to Missouri, is contracting out to an independent contractor most of the equipment repair work formerly performed by Missouri.3 Respond- ent's truckdrivers, yardmen, mechanics, helpers, and laborers perform substantially the same duties and serve the same purpose as those formerly employed by Missouri. In addition to categories of employees within the Missouri unit, Respondent has also employed the supervisor of Missouri's drivers, as well as Missouri's material supervisor to perform work in like ca- pacities. Additionally, 20 of the 40 individuals who worked for Mis- souri as clerical employees, dispatchers, selectron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors have been hired by Respondent to work in like capacities. 3 The legality of Respondent's cent, acting out such work is not an issue in thin case. JOHNSON READY MIX CO. 441 It was further stipulated that on June 11, 1962, the Union by certi- fied letter requested Respondent to recognize it and bargain with it as the certified bargaining representative of Respondent's employees. Its request was based on the asserted fact that Respondent was the suc- cessor to Missouri, and that its certification was binding on Respond- ent. Respondent did not reply to the Union's request. On June 15, 1962, the Union filed a charge against Respondent alleging violations of Section 8 (a) (3) and (5) of the Act. Thereafter, on July 10, 1962, the Union again wrote to Respondent stating that it was undertaking an organizational campaign among Respondent's employees and that after it obtained sufficient representa- tion cards, it would file a petition for certification. Respondent re- plied by letter on July 13, 1962, stating, inter alia, that if the petition was filed and -a proper unit was sought, there would be no difficulty in reaching a consent-election agreement. On July 16, 1962, the Union filed an amended charge alleging violations of Section 8 (a) (1) and (5) of the Act. The General Counsel and the Union contend that Respondent, as successor to Missouri, has violated the Act by refusing to recognize the certification of the Union and bargain with it. Respondent contends (1) it is not the successor of Missouri, and (2) the Union has "impli- citly" admitted that it does not represent a majority of Respondent's employees. Respondent urges that it is not the successor to Missouri because the terms of the sales agreement did not provide that Respond- ent assume any of Missouri's liabilities, accounts payable or obliga- tions, because it did not purchase any of Missouri's accounts receiv- able, because it did not purchase any Missouri good will, and because it never represented to anyone-that'it was-the successor in interest to Missouri. In sum, Respondent contends that all it purchased from Missouri were certain physical assets. We find, however, that the advent of Respondent effected no sub- stantial changes in the. operating entity. Thus, Missouri discontinued its operations on June 1, but Respondent on June 4 commenced sub- stantially identical operations, the most noteworthy change being that Respondent contracted out the bulk of the equipment repair work formerly done by Missouri. It is conceded that Respondent continued Missouri's business from the same location, handled the same products, used the same equipment, and continued to serve the same customers. Moreover, 'and most significantly, a majority of the employees in the unit we have found appropriate were formerly Missouri employees, are now performing the same functions they had performed for Missouri, and are directly supervised by former Missouri supervisors. In addi- tion, 50 percent of the other former employees of Missouri (clericals, dispatchers, etc.) are employed by Respondent in their same classifications. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that a Board certification must be honored for a reasonable period of time, normally at least 1 year, in the absence of unusual circumstances 4 A mere change in ownership in an "em- ploying industry" is not such an unusual circumstance as to affect the force of the certification for it is equally well settled that where the "employing industry" remains essentially the same after a trans- fer of legal ownership, the certification continues effective for the normal operative period and the obligation to bargain devolves upon the successor employer.' We therefore find that on June 11, 1962, when the Union requested recognition and bargaining as the certified representative of Re- spondent's employees, Respondent was required to recognize and bargain with it. It is conceded that Respondent did not do so. We therefore find that on June 11, 1962, Respondent violated Section 8 (a) (5) of the Act. There remains for consideration the contention of Respondent that, "implicit" in the Union's letter of July 10, 1962, was an admission by the Union that it did not represent a majority of Respondent's em- ployees. We have found above that the failure, to bargain occurred on June 11. Consequently, it is immaterial and irrelevant to the issue herein that a month after the refusal the Union stated it was undertaking to organize the employees. We therefore find no merit in this contention. Therefore, on the basis of the entire record herein, we find that Respondent violated Section 8 (a) (5) of the Act on June 11, 1962, and thereafter, by refusing to recognize and bargain with the Union as the certified collective representative of its employees. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with its operations as described in section I above, have a close, intimate, and substantial relation 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 the Respondent has engaged in certain unfair labor practices, we shall order that it cease,and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. ' Ray Brooks v. N.L.R.B., 348 U.S. 96. 6 N.L.R.B. v. Auto Ventshade, Inc., 276 F. 2d 303 (C.A. 5) ; N.L.R.B. v. Albert Armato and Wire & Sheet Metal Specialty Co., 199 F. 2d 800 ('C.A. 7) ; Witham Buick, Inc, 139 NLRB 1209; Colony Matertals, Inc, 130 NLRB 105; Firchaa Logging Company, Inc., 126 NLRB 1215; Ugite Gas Incorporated, 126 NLRB 494; Cruse Motors, Inc.,, 105 NLRB 242. JOHNSON READY MIX CO. 443 Having found that the Respondent refused to recognize the Union and bargain collectively with it as the exclusive representative of em- ployees in the appropriate unit, we shall order that the Respondent bargain collectively with the Union, upon request, as the statutory representative of the employees in that unit, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. General Drivers and Helpers Union Local No. 554, affiliated With the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization as defined in Section 2 (5) of the Act. 2. All truckdrivers, yardmen, helpers, mechanics, and laborers em- ployed by Respondent at its plant at 4343 South 67th Street, Omaha, Nebraska, excluding all clerical employees, dispatchers, selectron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. The above-named labor organization was on June 11, 1962, and has been at all times thereafter, the exclusive representative of all the employees in the above-described unit for the purpose of collective bargaining within the meaning-of Section 9(a) of the Act. 4. By refusing to recognize and bargain collectively with the above- named labor organization, as the exclusive representative of all the employees in the unit described above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By the aforesaid conduct, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Johnson Ready Mix Co., Omaha, Nebraska, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to recognize and bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the em- ployees in the following appropriate unit : All truckdrivers, yardmen, mechanics, helpers, and laborers em- ployed by Respondent at its plant at 4343 South 67th Street, Omaha, Nebraska, excluding all clerical employees, dispatchers, selectron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors as defined in the Act. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request,. bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the appropriate unit, as found above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Omaha, Nebraska, plant, copies of the attached notice marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being -duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily 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 the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 6In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: ALMEIDA BUS LINES, INC. 445 WE WILL NOT refuse to bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of the employees in the following appropriate unit : All truckdrivers, yardmen, mechanics, helpers, and laborers employed by us at our plant at 4343 South 67th Street, Omaha, Nebraska, excluding all clerical employees, dispatchers, selec- tron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining repre- sentative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed them by Section 7 of the Act. JOHNSON READY Mix CO., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis- souri, 64106, Telephone No. Baltimore 1-7000, Extension 731, if they have any questions concerning this notice or compliance with its provisions. Almeida Bus Lines, Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO. Case No. 1-CA-3861. May 3, 1963 DECISION AND ORDER On February 15, 1963, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding, finding that 142 NLRB No. 52.