Overnite Transportation Co.

646 319 NLRB No. 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 See pars. 8 and 9 of the complaint and the corresponding para- graphs in the Respondent’s answer. On October 26, 1995, the Re- spondent filed a motion to amend par. 9 of its answer in order to clarify that its refusal to bargain with the Union was technical, for the sole purpose of testing the Union’s certification, and that the Re- spondent does not admit, and denies to the extent the complaint may allege, that it refused to bargain with the Union over any interim changes in employment terms, the subject of a prior letter from the Union dated October 18, 1995. See also the Respondent’s opposition to the Motion for Summary Judgment at 4, fn. 2. We grant the Re- spondent’s motion to amend its answer. As noted by the Respondent, the complaint does not specifically allege that the Respondent has refused to bargain over any interim changes in employment terms, and the General Counsel has not requested any such remedy in the Motion for Summary Judgment. Thus, we find that the amendment does not raise any issue warranting denial of the Motion for Sum- mary Judgment. 2 See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1977). Overnite Transportation Company and Teamsters ‘‘General’’ Local Union No. 200, affiliated with the International Brotherhood of Teamsters, AFL–CIO. Case 30–CA–13034 November 8, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Upon a charge filed on September 1, 1995, the Gen- eral Counsel of the National Labor Relations Board issued a complaint on September 19, 1995, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain and to furnish relevant and necessary information following the Union’s certifi- cation in Case 30–RC–5660. (Official notice is taken of the ‘‘record’’ in the representation proceeding as de- fined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint and asserting affirmative defenses. On October 10, 1995, the General Counsel filed a Motion for Summary Judgment. On October 12, 1995, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On October 26, 1995, the Respondent filed a response. 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 the Respondent admits that it has re- fused to bargain with the Union, but attacks the valid- ity of the Union’s certification on the basis of its ob- jections to conduct affecting the results of the election in the representation proceeding. 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). We also find that there are no issues requiring a hearing with respect to the Union’s request for infor- mation. By letter dated August 21, 1995, the Union re- quested the following information from the Respondent in order to prepare for negotiations: a list of the names and addresses of all unit employees, including each employee’s current wage rate and date of hire and classification, and a copy of all company policies and work rules, available insurance plans, and any pension or retirement benefit plans offered. The Respondent’s answer admits that the Union sent the letter requesting the foregoing information, and that it subsequently re- fused to bargain with the Union.1 Although the Re- spondent’s answer effectively denies that the informa- tion requested by the Union is relevant and necessary, it is well established that such information is presump- tively relevant for purposes of collective bargaining and must be furnished on request.2 Finally, the General Counsel’s Motion for Summary Judgment specifically requests that we order the Respondent to furnish the relevant and necessary information requested by the Union, and the Respondent has not contested the pro- priety of such an order in its response to the Notice to Show Cause. Accordingly, we grant the General Counsel’s Motion for Summary Judgment and will order the Respondent to bargain and to furnish the requested information to the Union. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Milwaukee, Wisconsin (the Respondent’s facility), has been an interstate freight carrier. During the past calendar year ending December 31, 1994, the Respondent, in conducting its business oper- ations, derived gross revenues in excess of $50,000 for the transportation of freight from the State of Wiscon- sin directly to locations outside the State of Wisconsin. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), 647 OVERNITE TRANSPORTATION CO. 3 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 (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 March 6, 1995, the Union was certified on August 14, 1995, as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time dock workers, city drivers, road drivers, yard jockeys and me- chanics employed by the Employer; but excluding office clerical employees, managers, guards and supervisors as defined an the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated August 21, 1995, the Union re- quested the Respondent to provide it with relevant and necessary information to prepare for negotiations. By letter dated August 28, 1995, the Respondent acknowleged receipt of the Union’s August 21, 1995 letter requesting information, and advised the Union that the Respondent was refusing to bargain with the Union. We find that the Respondent’s 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 August 28, 1995, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit and to furnish the Union requested relevant and necessary information, the Respondent has engaged in unfair labor practices affecting 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. We also shall order the Respondent to furnish the Union the information requested. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent 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); and 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, Overnite Transportation Company, Mil- waukee, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters ‘‘General’’ Local Union No. 200, affiliated with the International Brotherhood of Teamsters, AFL–CIO, as the exclusive bargaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union infor- mation that is relevant and necessary to its role as the exclusive bargaining representative of the unit employ- ees. (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 full-time and regular part-time dock workers, city drivers, road drivers, yard jockeys and me- chanics employed by the Employer; but excluding office clerical employees, managers, guards and supervisors as defined in the Act. (b) On request, furnish the Union with the informa- tion it requested on August 21, 1995. (c) Post at its facility in Milwaukee, Wisconsin, cop- ies of the attached notice marked ‘‘Appendix.’’3 Cop- ies of the notice, on forms provided by the Regional Director for Region 30 after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Teamsters ‘‘General’’ Local Union No. 200, affiliated with the International Brotherhood of Teamsters, AFL–CIO, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT refuse to furnish the Union informa- tion that is relevant and necessary to its role as the ex- clusive bargaining representative of the unit employ- ees. 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 full-time and regular part-time dock workers, city drivers, road drivers, yard jockeys and me- chanics employed by us; but excluding office clerical employees, managers, guards and super- visors as defined in the Act. WE WILL, on request, furnish the Union with the in- formation that it requested on August 21, 1995. OVERNITE TRANSPORTATION COMPANY