Johnson Ready Mix Co.

National Labor Relations Board - Board Decisions

May 2, 1963

142 N.L.R.B. 437 (N.L.R.B. 1963)

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.