EDCO Waste & Recycling Services

National Labor Relations Board - Board Decisions

Nov 27, 2000

332 N.L.R.B. 130 (N.L.R.B. 2000)

332 NLRB No. 130
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
EDCO Waste and Recycling Services, Inc. and Build-
ing Material, Construction, Industrial, Profes-
sional and Technical Teamsters, Local 36, In-
ternational Brotherhood of Teamsters, AFL–
CIO. Case 21–CA–34108
November 27, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESALE AND MEMBERS FOX AND
HURTGEN
Pursuant to a charge filed on July 31, 2000,1 the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on August 22, 2000, 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 information following
the Union’s certification in Case 21–RC–20074. (Offi-
cial notice is taken of the “record” in the representation
proceeding as defined in the Board’s Rules and Regula-
tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265
NLRB 343 (1982).) The Respondent filed an answer,
with affirmative defenses, admitting in part and denying
in part the allegations in the complaint.
On October 17, 2000, the General Counsel filed a Mo-
tion for Summary Judgment. On October 18, 2000, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. 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 its refusal to bar-
gain and to furnish information that is alleged as relevant
and necessary to the Union’s role as bargaining represen-
tative, but attacks the validity of the certification on the
basis of the Board’s disposition of certain challenged
ballots in the representation proceeding.2
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-

1 Although the Respondent states that it is without knowledge re-
garding the truth of the allegation with respect to the filing of the
charge on July 31, 2000, and service on August 2, 2000, a copy of the
charge and affidavit of service thereof is attached as an exhibit to the
General Counsel’s motion and the Respondent has not challenged the
authenticity of those documents in its response to the Notice to Show
Cause.
2 Although the Respondent took exception to the hearing officer’s
decision to overrule its objections in the underlying representation case,
it has not relied on those objections in its response to the Notice to
Show Cause. In these circumstances, the Respondent has waived reli-
ance on these objections in this proceeding. See The Detroit Free
Press, Inc., 332 NLRB No. 43 (2000).
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding.3 See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to the Union's request to bargain
and for information. The Respondent admits that by let-
ters dated July 12 and 31, 2000, the Union requested that
the Respondent bargain collectively and furnish the Un-
ion with the following information: (1) a list of current
employees employed by the Respondent, with their clas-
sification, wage rate, and date of hire; (2) copies of any
health and welfare, life insurance, pension and profit-
sharing plans provided to employees by the Respondent;
(3) the Respondent’s policies regarding payment of holi-
days, vacations and sick leave; and (4) a list of any other
employee benefits provided to the employees by the Re-
spondent. The Respondent’s answer admits that it re-
fused to provide this information, but denies that the in-
formation requested is relevant and necessary for the
Union’s role as the exclusive bargaining representative
of the unit employees. It is well established, however,
that information of the kind requested concerning unit
employees is presumptively relevant and must be fur-
nished on request. See, e.g., Masonic Hall, 261 NLRB
436, 437 (1982); and Mobay Chemical Corp ., 233 NLRB
109, 110 (1977). The Respondent has not attempted to
rebut the relevance of the information re-quested by the
Union.

Accordingly, we grant the Motion for Summary Judg-
ment4 and will order the Respondent to recognize and
bargain with the Union and to furnish it the information
requested.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation with its principal offices located at 224 South
Las Posas Road, in San Marcos, California, has been
engaged in waste collection, disposal, and recycling.

3 The Respondent’s answer asserts as an affirmative defense that the
Board has no jurisdiction over alleged unfair labor practices set forth in
the complaint which are barred by the 6-month statute of limitations set
forth in Sec. 10(b) of the Act. The critical allegations of the unfair
labor practice complaint occurred less than 1 month before the charge
was filed. Neither the Respondent’s answer nor its response to the
notice presents any factual or legal basis for this asserted defense.
Accordingly, we reject the Respondent’s 10(b) defense.
4 The Respondent’s requests that the complaint be dismissed and that
it recover costs and attorneys’ fees are denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2
During the 12-month period ending July 31, 2000, the
Respondent, in conducting its business operations de-
scribed above, performed services valued in exc ess of
$50,000 for customers located within the State of Cali-
fornia, each of which customers, during that same period
of time, purchased and received goods valued in excess
of $50,000 directly from suppliers located outside the
State of California.
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 organization
within the meaning of Section 2(5) of the Act.5
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 25, 1999, the Union
was certified on June 28, 2000, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

All drivers, helpers, fleet and container maintenance
employees, recycling sorters and equipment operators
employed by the Employer at its facility located at 224
South Las Posas Road, San Marcos, California; exclud-
ing all other employees, office clerical employees,
salesmen, professional employees, guards and supervi-
sors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On or about July 12, 2000, and again on or about July
31, 2000, the Union, by letter, requested the Respondent
to bargain and to furnish information, and, since July 31,
2000, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after July 31, 2000, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit and to fur-
nish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.

5 The Respondent’s answer denies that it has purchased and received
goods valued in excess of $5000 directly from suppliers located outside
the State of California. It also avers that it is without knowledge as to
the truth of the allegation that the Union is a labor organization. We
note that the Respondent stipulat ed to these commerce allegations in
the Stipulated Election Agreement in the underlying representation case
and that that agreement identified the Union as a labor organization.
We further note that the Respondent has not asserted these positions in
its response to the Notice to Show Cause. Accordingly, those denials
do not present any issue warranting a hearing. The Detroit Free Press,
Inc., supra.
REMEDY
Having found that the Respondent has violated Section
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 understanding
in a signed agreement. We also shall order the Respon-
dent to furnish the Union the information requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, EDCO Waste and Recycling Services, Inc.,
San Marcos, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Building Material, Con-
struction, Industrial, Professional and Technical Team-
sters, Local 36, International Brotherhood of Teamsters,
AFL–CIO as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to
furnish the Union information that is relevant and neces-
sary to its role as the exclusive bargaining representative
of the unit employees.
(b) In any like or related manner interfering with, re-
straining, 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:

All drivers, helpers, fleet and container maintenance
employees, recycling sorters and equipment operators
employed by the Employer at its facility located at 224
South Las Posas Road, San Marcos, California; exclud-
ing all other employees, office clerical employees,
salesmen, professional employees, guards and supervi-
sors as defined in the Act.

(b) Furnish the Union the information that it requested
on July 12 and 31, 2000.
(c) Within 14 days after service by the Region, post at
its facility in San Marcos, California, copies of the at-
EDCO WASTE & RECYCLING SERVICES

3
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
21 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 31,
2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply. Dated, Washington, D.C. November 27, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

Peter J. Hurtgen, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Building Material,
Construction, Industrial, Professional and Technical
Teamsters, Local 36, International Brotherhood of Team-
sters, AFL–CIO as the exclusive representative of the
employees in the bargaining unit, and WE WILL NOT re-
fuse to furnish the Union information that is relevant and
necessary to its role as the exclusive bargaining
representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise 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 bar-
gaining unit:

All drivers, helpers, fleet and container maintenance
employees, recycling sorters and equipment operators
employed by us at our facility located at 224 South Las
Posas Road, San Marcos, California; excluding all
other employees, office clerical employees, salesmen,
professional employees, guards and supervisors as de-
fined in the Act.

WE WILL furnish the Union the information it requested
on July 12 and 31, 2000.
EDCO WASTE AND RECYCLING SERVICES, INC.