American Concrete Pipe of Hawaii, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1960

128 N.L.R.B. 720 (N.L.R.B. 1960)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Concrete Pipe of Hawaii , Inc.' and ILWU Local 142,
Petitioner. Case No. 37-RC-610. August 18, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before David E. Davis,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The question concerning representation :
The Petitioner seeks to represent all employees of the Employer
engaged in the manufacture of concrete pipe and concrete pipefittings.
Prior to April 1, 1960, the employees in question were employed by
Honolulu Construction and Draying Company (H.C.D.), in its con-
crete products department. On April 1, 1960, a new corporation, the
Employer herein, was organized to perform the concrete products
operations previously performed by H.C.D. H.C.D. discontinued its
concrete products department, as described hereinafter. The Em-
ployer and Intervenor Local 1 contend that the present proceeding is
barred by (1) a Board certification issued on December 16, 1959, to
Local 1, covering production and maintenance employees of H.C.D.; s
and (2) a 2-year contract between H.C.D. and Local 1, executed Jan-
uary 7, 1960, and effective January 1, 1960, covering employees in the
aforesaid certified unit. Both the certification and the contract cover
employees in seven H.C.D. departments, including the former H.C.D.
concrete products department.' The petition herein was filed April
12,1960.
As previously noted, the Employer corporation was formed on
April 1, 1960, to succeed to H.C.D.'s concrete products operations.
There is no dispute that the Employer is a new corporate entity, sep-
arate and apart from H.C.D. Half of the stock of the new corpora-
tion was purchased by H.C.D., and half by the American Pipe and
1 The Employer' s name appears as amended at the hearing
a Drivers , Helpers, Warehousemen and Construction Division , Local 1, of the State of
Hawaii ( herein called Local 1), and Hawaii Teamsters and Allied Workers Local 996,
IBTCW & HA ( herein called Local 996 ), intervened on the basis of separate showings of
interest.
s The certification followed a consent election in Case No. 37-RC-468.
Of a total of approximately 300 H C.D. employees, 28 to 30 were employed in H.C.D.'s
concrete products department . There are approximately 31 employees presently employed
by the Employer, and sought by the Petitioner.
128 NLRB No. 83.
AMERICAN CONCRETE PIPE OF HAWAII, INC. 721
Construction Company of Los Angeles, not affiliated with H.C.D.
Management and supervisory personnel were furnished by H.C.D.,
while officers of both H.C.D. and American Pipe were designated as
officers of the new corporation. At present, the Employer pays rent
to H.C.D. for the use of the premises of the former H.C.D. concrete
products department, and reimburses H.C.D. for the use of its main-
tenance, clerical, and billing staff. However, a new building, 18 miles
away, is being built for the Employer's occupancy in September 1960.
This new plant will be located in the Campbell Estate Industrial Park
at Barber's Point, elsewhere on the island of Oahu. For the time
being, the Employer has agreed to sell the inventory on hand as an
agent for H.C.D. However, the aforementioned rental, billing, and
sales arrangements with H.C.D. will cease with the Employer's move
to Barber's Point in September. In other respects, it appears that the
Employer's concrete products operations are the same as they were
under H.C.D.
Immediately prior to the formation of the new corporation, the
Employer's manager, at that time an employee of H.C.D., informed
Local 1 that employees of the new corporation, "as far as he was con-
cerned," would be covered "under the same terms of the agreement"
signed with Local 1 for production and maintenance employees of
H.C.D. Employees of H.C.D.'s concrete products department were
given the option of remaining with H.C.D. or transferring to the new
Employer, at its Barber's Point location.5 These employees were told
that the terms of H.C.D.'s contract with Local 1 would be applied to
them if they chose to be transferred to the new Employer, and that
their seniority would not be interrupted. No formal adoption of
H.C.D.'s contract with Local 1 was executed by the Employer.
It is clear from the foregoing that Local 1's contract with H.C.D.
does not bar the present petition. In the General Extnision case,'
the Board reaffirmed its long-standing rule that "the assumption of
the operations by a purchaser in good faith who had not bound him-
self to assume the bargaining agreement of the prior owner of the
establishment removes the contract as a bar." Such an assumption of
a prior contract by a new employer must be express and in writing.'
As no such express written adoption was made in the present case, we
find that Local 1's contract with H.C.D. does not constitute a bar.
We also find that the petition herein is not barred by Local 1's cer-
tification, covering employees of H.C.D. in a production and main-
tenance unit. That certification is, under Board law, a bar for 1 year
5 Only one employee chose to remain with H C.D
General Extrusion Company Inc ., et at., 121 NLRB 1165, 1168.
7 See Jolly Giant Lumber Co ., 114 NLRB 413, 414 See also Appalachian Shale Products
Co., 121 NLRB 1160 , 1161, requiring that a contract be written and signed by both parties
to serve as a bar.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a petition for employees in that unit.' It is also well established
that a Board certification is, absent unusual circumstances, binding on
a "successor" employer, without the requirement of express adoption.'
However, in the present case, following the Board certification in
December 1959, a small portion of the unit described in the certifica-
tion was splintered from the larger part of the unit and put in inde-
pendent operation under a different company, the Employer herein.
Local 1's certified unit consisting of six of the seven original depart-
ments of H.C.D. remains substantially intact.10 We are of the opinion
that the relatively small segment of the original employees now work-
ing for the Employer have effectively been separated for unit pur-
poses from the other employees covered by the certification. In these
circumstances, we cannot find that the presumption of Local 1's
majority stemming from the certification reasonably continues as to
the concrete products employees now in the employ of the new cor-
poration, and soon to move to a different location. We believe the
policies of the Act will best be effectuated by giving these employees
the opportunity to determine for themselves whether they desire
collective-bargaining representation on the basis of the instant peti-
tion. Accordingly, we conclude that the employees of the Employer,
sought herein by Petitioner, are no longer a part of the unit covered
by Local 1's certification at II.C.D., and therefore that the certification
is not a bar to the present petition."
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within Section
9(b) of the Act:12
All employees engaged in the manufacture of concrete pipe and
concrete pipefittings at the Employer's plant on the island of Oahu,
Hawaii, excluding office clerical employees, professional employees,
guards and watchmen, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication].
CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera-
tion of the above Decision and Direction of Election.
8 Kimberly-Clark Corporation, 61 NLRB 90.
6 See , e g, Ray Brooks v. N L R B., 348 U.S. 97, 98.
10 Cf. Royal Brand Cutlery Company, etc, 122 NLRB 901, and other unfair labor
practice cases, where the great majority of the employees in the certified unit were
transferred to a new employer.
u See General Electric Company, 123 NLRB 1193 Although we have decided supra that
Local 1's contract with H C.D. is not a bar on other grounds , it is clear that the splinter-
ing of the concrete products employees into the new unit found herein would , for this
reason also , remove Local 1' s contract as a bar to the present petition . See, e.g.,
General Extrusion Company Inc , et el., supra.
'Aside from the contentions of the Employer and Local 1 alleging the inclusion of the
disputed employees in their contract and certification , the appropriate unit is as stipu-
lated by the parties