O'Daniel Trucking Co.

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. 853 O’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.