Mid-County Transit Mix, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 465 (N.L.R.B. 1980)

LO()CAL 282. INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Mid-County Transit Mix, Inc.
Case 29-CC-688
July 7, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 14, 1980, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 282, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
a charge filed on September 24, 1979, by Mid-County
Transit Mix, Inc., herein called Mid-County, against
Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Local 282, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director
for Region 29, issued a complaint dated October 15,
1979, alleging violations by Respondent Local 282 of
Section 8(b)(4)(i) and (ii)(C) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent, by its answer, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Brooklyn, New York, on November 15 and 16, 1979, at
which all parties were represented by counsel and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence.
Thereafter, the General Counsel and Respondent filed
briefs which have been duly considered.
250 NLRB No. 76
Upon the entire record in this case,.' and from my ob-
servations of the witnesses. I make the following:
FINDINGS OF FACTI
I. JURISDICTION
Mid-County Transit Mix. Inc., is a New York corpora-
tion and maintains its principal office and place of busi-
ness in Smithtown, New York. It is engaged in the man-
ufacture, sale, and distribution of ready-mix concrete.
Since commencing its business operations in 1979 Mid-
County has purchased goods and materials valued, at an
annual rate, in excess of $50,000. Said goods and materi-
als were shipped, directly to Mid-County plants in New
York by suppliers located outside that State. I find that
Mid-County Transit Mix, Inc., is a person and an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(1), (2), (6), and (7) and Section 8(b)(4) of the Act.
II. LABOR ORGANIZATIONS
United Brotherhood of Industrial Workers, Local 424,
herein called Local 424, and Respondent Local 282, are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Mid-County was incorporated in January 1979, and
began its operations as a manufacturer and distributor of
ready-mix concrete in May of that year. The stock of
that corporation is owned by its president, Rocco Mura-
tore, and its secretary, Anthony Muratore, Rocco's
uncle. Prior to the formation of Mid-County, Rocco
Muratore served as general manager of Twin County
Transit Mix, Inc., herein Twin County, a New York cor-
poration whose stock is owned by Rocco's father, Joseph
Muratore, and his uncles, Jack and Anthony Muratore.
Twin County was also in the ready-miA concrete busi-
ness and, at all times material herein, met the Board's ju-
risdictional standards. It was the August 1978 decision of
Joseph and Jack Muratore to leave the business which
gave rise to the formation of Mid-County and a cessation
of operations by Twin County.
For many years, the production, maintenance, and
truckdriver employees of Twin County were represented
by Local 424 and the wages, hours, and working condi-
tions of these employees were controlled by successive
collective-bargaining contracts between Twin County
and Local 424. That union was certified by the Board as
collective-bargaining representative in the above-de-
scribed unit in 1963. Twin County's yard employees
were represented by another labor organization while its
office employees were, apparently, not represented by a
union.
Prior to 1970, the owners of Twin County formed
Acme Concrete and Supply Corp., herein called Acme,
I Respondent's pot-hearing "request." that I take official notlie of cer-
lain testimony laken in the case of US v Sanr ;Vloho, and Fren lIransil
Mix. Inc, superceding indictment 79- RC 204( S. I astern District of Ne,
York. Pratt. N JI is herehy denied
465
DECISIONS O()F NATIONAI. I.ABtOR RELATIONS BOARD
and operated it as an affiliated business of Twin County.
Thus, Acme was located at Twin County's principle
plant, in Smithtown, New York, and was engaged, exclu-
sively, in the transportation of sand and gravel to Twin
County locations.2 In the early 1970's Acme employed
seven or eight drivers and owned its own trucks. How-
ever, in 1976, the Acme trucks were sold at public auc-
tion and, thereafter, Acme drivers utilized Twin County
trucks. At all times material herein, Respondent Local
282 was the certified collective-bargaining representative
of the Acme drivers and, as such, entered into successive
contracts with Acme with respect to that unit. The last
such contract expired in July 1978 at which time Acme
employed only three drivers. Thereafter, by January
1979, that unit had decreased to two individuals and by
the spring of that year Acme employed only one truck-
driver.
Joseph, Jack, and Anthony Muratore also owned and
operated, in the 1970s, a ready-mix concrete business
under the name of Tri-County Transit Mix, Inc., herein
called Tri-County, with locations in Smithtown and
Westbury, Connecticut. The drivers employed by Tri-
County were represented by Respondent-Union. Howev-
er, by January 1978, Tri-County employed only one
driver and prior to the July 1978 expiration of the collec-
tive-bargaining agreement between that employer and
Local 282, Tri-County had ceased, entirely, its business
operations.
B. Facts3 and Conclusions
1. The transfer of operations
Twin County ceased normal business activities in April
1979 and began the process of dissolution. It sold its
three plants I month later, and other assets and equip-
ment to the new Mid-County enterprise. Certain other
equipment was leased by the old entity to the new one.
On or about May 15, 1979, Mid-County commenced
business operations and engaged in the same enterprise at
the same plants with use of the same equipment as previ-
ously engaged in by Twin County. All of the former
Twin County production and maintenance employees
and all of the former Twin County drivers and yardmen
as well as most of that employer's office employees
became Mid-County employees. Mid-County hired one
other employee, a driver, as discussed infra. Following
talks with Local 424, Mid-County and that Union ex-
ecuted an agreement, dated July 1, 1979, by which Mid-
County agreed to hire all unit employees on the Twin
County payroll, to recognize Local 424 as their bargain-
ing representative, and to assume the then current con-
tract, scheduled to expire on August 31, 1980, between
Twin County and Local 424. The new business contin-
ued to service substantially the same customers previous-
ly serviced by the old business. In light of the foregoing,
I find and conclude that Mid-County was and is the suc-
2 Twin County also operated plants located in Yaphank, New York.
and in t.indenhursl. New York
a The fact-findings contained hereil are based upon a composite Oif the
testimonial and documentary cidence inlroducted al the hea;rinlg VWhere
necessary to do so in order lo rcol e testlimllnial conflict, credibilitl de-
terminalion,s are set forlh inji
cessor employer to Twin County and, as such, has
successorship rights to the bargaining relationship for-
merly enjoyed by Twin County with Local 424, the cer-
tified employee representative.
As noted, by the spring of 1979 the Acme drivers' unit
formerly represented by Respondent-Union had ceased
to exist for, as of that time, Acme employed only one
driver, Joseph Pauciullo. In late June, or early July, Pau-
ciullo. Acme's sole remaining employee, was transferred
to the Mid-County payroll and Acme, which had existed
solely for the purpose of transporting sand and gravel to
Twin County plants, ceased to function as a business. As
a Mid-County employee, Pauciullo continued to perform
truck driving work and he was placed in the unit repre-
sented by Local 424, which included drivers who per-
formed indentical work. In these circumstances, I find
and conclude that when Acme ceased its operations and,
then, Pauciullo was transferred to the Mid-County pay-
roll, he was properly treated as an accretion to the pro-
duction, maintenance, and drivers unit represented by
Local 424. As Twin County and Acme had functioned as
affiliated businesses, and the operations of both were
thereafter merged into Mid-County, the situation created
was similar to that treated by the Board in Motor City
Dodge. Inc.,4 that is, a successorship with concurrent ac-
cretion to the bargaining unit.
2. The strike and picketing
About the time of his transfer to Mid-County, Pau-
ciullo asked its president, Rocco Muratore, to sign a con-
tract with Local 282.5 Muratore declined, explaining that
the drivers were covered by an agreement between Mid-
County and Local 424. Thereafter, Pauciullo repeated
that request, on several occasions, to no avail.
On Friday, September 21, 1979, Pauciullo did not
report to work but, rather, engaged in picketing at Mid-
County's Smithtown, location, accompanied by Respond-
ent-Union Business Agent Edward Silvera. The employ-
ee wore a sign, stating: "Acme Concrete and Supply . . .
Strike . . . Local 282."6 Picketing continued at that site
until October 14, 1979, when it was restrained by the
United States District Court for the Eastern District of
New York. During the course of Respondent's picketing
activities at the Mid-County location, the number of
pickets varied from as few as I to as many as 10. While
Mid-County employees did not honor the picket line,
Pauciullo and Silvera successfully appealed to the drivers
of delivery trucks to refrain from crossing the picket line
and completing the delivery of supplies to Mid-County.
At the hearing, Pauciullo and Silvera conceded in their
testimony that they knew that those deliveries were in-
I185 NLRB 629 (1970) See, also. Boston Gua Comnpany. 235 NLRB
1354 (1978)
* As indicated. Acme's precious colntract with L ocal 282 expired in
July 1978 Followilg induslry negotiations. in which Acme did not par-
tieipate as it had not in prior years, Local 282 prepared new contracts for
sigilature In July 1979, that UitoIi left copies of the new agrecmenl at
the Smithtoan office for signature h,, Roicco Muratore, as representatise
of Acme Murtore did inot sign the contracl
I Beginlning Septembenhr 22, 'auciullo uscd a 'igln which stated "Acme
Conlcrete and Supply Corp ailnd Tlri-Countilly TIranlsmix I c Strike
I ocal 282 "
466
.()OCAL 2X2, INl'ERNA'(IONAL BROTHER)()IOO) ()F TEAMST'ERS
tended for Mid-County. 7 Silvera further testified that he
knew before picketing began that Pauciullo had been
Acme's sole remaining employee. On the first day of
picketing he learned that Pauciullo had become a Mid-
County employee.
The next day, Saturday, September 22, Joseph Mura-
tore, the president of Twin County, asked Pauciullo
what the problem was about. Pauciullo replied that he
wanted Muratore to sign a contract. The latter stated
that he could not do so as he was no longer in business.
Pauciullo then asked Muratore to talk to his son, Rocco,
and have Rocco sign the contract. That same day,
Joseph Muratore approached Silvera and was told that
the picketing was in response to the failure of Acme and
Tri-County to sign contracts with Local 282. When Mur-
atore stated that the Union knew that those companies
were out of business, Silvera replied that Respondent-
Union had not been notified of that fact. Silvera further
informed Muratore that, if the contract were signed,
there would be no further problem. At the hearing, Sil-
vera testified that, after learning that Acme was no
longer in business he, nonetheless, persisted with his
demand that a contract be signed because "I considered
him (Pauciullo) an Acme employee and he wanted the
contract signed."
Local 282's secretary-treasurer, Robert Sasso, and that
Union's vice president, William Argento, testified that
Rocco Muratore, as a representative of Tri-County along
with representatives of certain other employers, engaged
in early 1979 negotiations with Local 282 which were
aimed at producing a contract for readi-mix suppliers lo-
cated in Suffolk County, New York, less costly than the
New York City and Nassau County, New York, con-
tracts. While, as noted, Tri-County was no longer en-
gaged in business activities, Muratore was invited to par-
ticipate in negotiations, by Sasso, in light of the possibil-
ity that Tri-County might later resume operations. At the
bargaining table, the Union was informed that Tri-
County no longer had any employees. According to Ar-
gento and Sasso, at the conclusion of those negotiations,
they met with Muratore and informed him that the less
costly contract, just concluded, would not apply to
Acme since the latter was in the trucking business and
was not a readi-mix supplier. Thus, they told Muratore,
Acme would be required to sign the general area con-
tract. Muratore, they testified, responded that that was
not a problem. While Muratore, in his testimony, con-
firmed the fact of his participation in negotiations, as Tri-
County representative, he denied that the foregoing con-
versation occurred. As Muratore testified in vague fash-
ion about the above-referenced negotiations, I do not
credit his denial and, instead, I find that a conversation
took place substantially as described by Argento and
Sasso. However, that factor does not affect my conclu-
sions with respect to the nature of Respondent-Union's
strike and picketing activities at Mid-County's Smith-
town location.
7 Silvera testified that he informed the drivers attempting to make de-
liveries that Ihe strike concerned a refuial to signl a conatract and that
"We got this problhem with this company that ran a"ia)y from us," W.hen
informed hby a dri'er that the deliv'eries ecre intended fior Mid-Counlt.
Silvera staled. " e aere picketing the yard"
Respondent engaged in a strike and picketing activities
at Mid-County's principal place of business and stopped
delivery of supplies to Mid-County by employees of
other employers in support of its demand that Rocco
Muratore sign a contract with Local 282 covering Pau-
ciullo. The Union did so at a time when it knew that that
individual was a Mid-County driver-employee and that
both Acme and Tri-County were no longer in business
and no longer retained any employees. An object of Re-
spondent's picketing was, thus, to force Mid-County to
recognize Respondent as the collective-bargaining repre-
sentative of some or all of Mid-County's drivers despite
the fact that Local 424 was and is the certified repre-
sentative of those employees. I find and conclude that
Respondent-Union acted in violation of Section 8(b)(4)(i)
and (ii)(C) of the Act.
IV. THE EFFECTS OF THE UNFAIR l ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Mid-County, described in section 1, 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 commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(b)(4) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Mid-County Transit Mix, Inc., is a person and an
employer engaged in commerce within the meaning of
Section 2(1), (2), (6), and (7) and Section 8(b)(4) of the
Act.
2. United Brotherhood of Industrial Workers, Local
424, and the Respondent, Local 282, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By its strike against Mid-County, and its picketing
activities at Mid-County's Smithtown, New York, loca-
tion, as described hereinabove, Respondent has engaged
in unfair labor practice conduct within the meaning of
Section 8(b)(4)(i) and (ii)(C) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
46h7
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
ORDER8
The Respondent, Local 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, New York, New York, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Engaging in, inducing, or encouraging any individ-
ual employed by Mid-County Transit Mix, Inc., or any
other person engaged in commerce or in an industry ag-
gecting commerce, to engage in a strike or a refusal in
the course of his employment to use, manufacture, proc-
ess, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform
any services; or threatening, coercing, or restraining
Mid-County, or any other person engaged in commerce
or in an industry affecting commerce; where in either
case an object thereof is to force or require Mid-County
to recognize and bargain with Respondent-Union as the
representative of its driver employees even though an-
other labor organization, United Brotherhood of Indus-
trial Workers, Local 424, has been certified as the repre-
sentative of those employees under the provisions of Sec-
tion 9 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Post at its offices and meeting halls copies of the at-
tached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings. 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.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(b) Mail or deliver to the Regional Director for
Region 29, signed copies of the said notice for posting by
Mid-County Transit Mix, Inc., if willing, at all locations
where that Employer normally posts notices to its em-
ployees.
Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, induce, or encourage
any individual employed by Mid-County Transit
Mix, Inc., or any other person engaged in com-
merce or in an industry affecting commerce, to
engage in a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any serv-
ices; or threaten, coerce, or restrain Mid-County, or
any other person engaged in commerce or in an in-
dustry affecting commerce; where in either case an
object thereof is to force or require Mid-County to
recognize and bargain with us as the representative
of the Mid-County driver employees even though
another labor organization, United Brotherhood of
Industrial Workers, Local 424, has been certified as
the representative of those employees under the
Act.
LOCAL 282, INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA
468