Lamont Pipe Co., Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1978

239 N.L.R.B. 500 (N.L.R.B. 1978)

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