O'Daniel Trucking Co.

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 851 (N.L.R.B. 1992)

851
309 NLRB No. 131
O’DANIEL TRUCKING CO.
1 Although the Respondent indicates that the date was June 23,
1992, this was apparently an error which was prompted by the Gen-
eral Counsel’s own error in the complaint. In accordance with the
General Counsel’s request, we have corrected the date in the com-
plaint to July 23, 1992, and we therefore also presume that this was
the date the Respondent intended.
2 Respondent’s motion for leave to amend it answer to include its
additional affirmative defenses is granted.
3 See Nassau Insurance Co., 280 NLRB 878 (1986).
O’Daniel Trucking Co. and Southern Illinois Labor-
ers’ District Council, affiliated with Laborers’
International Union of North America, AFL–
CIO. Case 14–CA–22035
December 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 12, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 14–RC–11134. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed its an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On October 21, 1992, the General Counsel filed a
Motion for Summary Judgment and brief in support.
On October 23, 1992, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
On November 9, 1992, the Respondent filed a re-
sponse, and on November 20, 1992, the General Coun-
sel filed a reply thereto.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause, the Respondent admits its refusal to bargain but
attacks the validity of the certification on the basis of
its objections to the election and the Board’s unit de-
termination in the representation proceeding. In addi-
tion, the Respondent in its response seeks to amend its
answer to allege as an affirmative defense that, since
on or about July 23, 1992,1 the Charging Party Union
has itself refused to bargain by advising that it would
not sign any agreement with the Respondent other than
the agreement it has negotiated with other employers,
and has also engaged in various secondary conduct to
force other employers to cease doing business with the
Respondent. The Respondent contends that these new
allegations raise factual issues as to whether some
form of remedy under Laura Modes Co., 144 NLRB
1592 (1963), is warranted.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
As for the Respondent’s newly alleged affirmative
defenses that the Union has itself refused to bargain in
good faith and has engaged in secondary conduct,2 we
find that even accepting as true that such alleged mis-
conduct occurred, it would not warrant recission of the
Union’s certification under Laura Modes. See Holiday
Inn Palo Alto-Stanford, 298 NLRB 521 fn. 2 (1990),
and cases cited there. Nor do we find that it would
warrant withholding a bargaining order. While a cer-
tified union’s refusal to bargain in good faith, if prov-
en, might in certain circumstances excuse a respondent
employer’s failure to bargain,3 this is a somewhat dif-
ferent situation since the Respondent has essentially
conceded in its answer that it would have refused to
bargain with the Union anyway in order to test the
Union’s certification, and thus the Respondent would
presumably have refused to bargain irrespective of the
Union’s allegedly unlawful conduct at the July 23,
1992 meeting. In these circumstances, and taking into
account the Respondent’s expressed desire to challenge
the Union’s certification before the court of appeals,
we find that no purpose would be served by withhold-
ing a bargaining order at this point, and leave to com-
pliance whether the Respondent may be excused from
complying with the bargaining order because of the
Union’s alleged refusal to bargain in good faith.
Accordingly, we find that the Respondent has not
raised any material issue of fact requiring a hearing,
and we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Carmi, Illinois, a yard operation
in East Carmi, and a sand and gravel dredge operation
in Maunie, Illinois, has been engaged in the truck
transportation of mine refuse and construction mate-
rials and the commercial and residential construction
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and repair of concrete and asphalt roads, parking lots,
and driveways.
During the 12-month period ending July 31, 1992,
the Respondent, in conducting its business operations,
provided services valued in excess of $50,000 for en-
terprises within the State of Illinois, which enterprises
meet an appropriate standard for the assertion of juris-
diction on other than solely an indirect basis.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 8, 1992, the Union
was certified on May 6, 1992, as the collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All construction laborers employed by the Em-
ployer at its heavy and highway construction
jobsites, EXCLUDING all drivers, operators, of-
fice clerical and professional employees, guards,
and supervisors as defined in the Act, and all
other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since June 2, 1992, the Union has requested the Re-
spondent to bargain and, since July 23, 1992, the Re-
spondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after July 23, 1992, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, O’Daniel Trucking Co., Carmi, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Southern Illinois Labor-
ers’ District Council, affiliated with Laborers’ Inter-
national Union of North America, AFL–CIO as the ex-
clusive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All construction laborers employed by the Em-
ployer at its heavy and highway construction
jobsites, EXCLUDING all drivers, operators, of-
fice clerical and professional employees, guards,
and supervisors as defined in the Act, and all
other employees.
(b) Post at its facility in Carmi, Illinois, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 14 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
853O’DANIEL TRUCKING CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Southern Illi-
nois Laborers’ District Council, affiliated with Labor-
ers’ International Union of North America, AFL–CIO
as the exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All construction laborers employed by the Em-
ployer at its heavy and highway construction
jobsites, EXCLUDING all drivers, operators, of-
fice clerical and professional employees, guards,
and supervisors as defined in the Act, and all
other employees.
O’DANIEL TRUCKING CO.