LaGloria Oil & Gas Co.

National Labor Relations Board - Board Decisions

Mar 21, 2003

338 N.L.R.B. 858 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
La Gloria Oil and Gas Company and Paper, Allied-
Industrial, Chemical & Energy Workers,
International Union, Local 4-202. Cases 16–CA–
22313 and 16–CA–22316
March 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to charges and an amended charge filed on
October 28 and 29, 2002, the General Counsel issued the
consolidated complaint on November 5, 2002, alleging
that the Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing the Union’s request to bargain and
to furnish information following the Union’s certification
in Case 16–RC–10269. (Official notice is taken of the
“record” in the representation proceeding as defined 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 deny-
ing in part the allegations in the consolidated complaint,
and requesting that the proceeding be stayed.
On November 22, 2002, the General Counsel filed a
Motion for Summary Judgment. On December 17, 2002,
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 an opposi-
tion to the motion for summary judgment, and also filed
a motion to stay. The General Counsel thereafter filed a
reply to the Respondent’s opposition and motion to stay.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
furnish information, but contests the validity of the certi-
fication in the underlying representation proceeding on
the ground that the Board improperly overruled its de-
terminative challenges to the ballots of two employees
(Floyd Saylor and William Lampe) whom Respondent
had discharged prior to the election. The Respondent
also contends that the Board should stay further proceed-
ings in this case because the Board’s decision in the prior
consolidated unfair labor practice case,1 which found that
the discharges of Saylor and Lampe were unlawful, is
currently pending before the United States Court of Ap-
peals for the Fifth Circuit on the Respondent’s petition

1 337 NLRB 1120 (2002).
for review and the Board’s cross-petition for enforce-
ment.
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-
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. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no genuine issues of mate-
rial fact warranting a hearing with respect to the Union’s
request for information. The complaint alleges, and the
Respondent’s answer admits, that the Union requested
the names, addresses, and telephone numbers of the unit
employees, and that the Respondent refused to furnish
this information to the Union. Although the Respon-
dent’s answer denies that this information is necessary
and relevant to the Union’s duties as the exclusive bar-
gaining representative of the unit employees, it is well
established that such information is presumptively rele-
vant and must be furnished on request. Baker Concrete
Construction, 338 NLRB No. 48 (2002) (not reported in
Board volumes); Maple View Manor, Inc., 320 NLRB
1149 (1996), enfd. mem. 107 F.3d 923 (D.C. Cir. 1997);
Masonic Hall, 261 NLRB 436 (1982); Mobay Chemical
Corp., 233 NLRB 109 (1977). The Respondent has not
asserted any basis for rebutting the presumption, apart
from its argument, rejected above, that the Union’s certi-
fication is invalid.
Finally, we deny the Respondent’s request that our de-
cision and order in this proceeding be stayed given the
pending petitions for review and enforcement of the
Board’s decision in the prior consolidated unfair labor
practice case that the discharges of Saylor and Lampe
violated Section 8(a)(3) of the Act. The Respondent
made a similar request for a stay after issuance of the
Board’s decision in the prior consolidated proceeding
directing that the ballots of Saylor and Lampe be opened
and counted, and the Board denied that request by sup-
plemental order dated September 26, 2002.2 As indi-
cated in the supplemental order, Section 10(g) of the Act
provides that the commencement of proceedings in a
United States court of appeals pursuant to a petition for
enforcement or review “shall not, unless specifically or-
dered by the court, operate as a stay of the Board’s or-
der.” The Respondent does not assert that a stay of the
2 The supplemental order is unpublished.
338 NLRB No. 122
LA GLORIA OIL & GAS CO. 859
Board’s order has been issued by the court. The Re-
spondent must therefore honor the certification, and its
duty to bargain is not postponed by the pending petition
for court review. See More Truck Lines, 338 NLRB 809
(2003); M. J. Metal Products, 330 NLRB 502 fn. 2
(2000), enfd. 267 F.3d 1059 (10th Cir. 2001); and Mid-
land-Ross, Inc., 243 NLRB 1165, 1166 (1979), enfd. 653
F.2d 239 (6th Cir. 1981).
Accordingly, we grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with a facil-
ity in Tyler, Texas, has been engaged in the business of
refining petroleum products. During the 12-month pe-
riod preceding the issuance of the consolidated com-
plaint, the Respondent sold and shipped from its Tyler,
Texas facility goods valued in excess of $50,000 directly
to customers located outside the State of Texas. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 15, 2000, the
Union was certified on October 10, 2002, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
INCLUDED: All truck drivers employed by the
Employer on the payroll of PSI at its Tyler, Texas
facility.
EXCLUDED: All other employees, including
drivers of any common carriers, 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
By letters dated October 8 and 16, 2002, the Union re-
quested the Respondent to bargain and to furnish infor-
mation, respectively. Since October 14, 2002, the Re-
spondent has refused the Union’s request to bargain, and,
since October 22, 2002, the Respondent has refused to

3 Members Schaumber and Walsh did not participate in the underly-
ing representation proceeding. However, they agree that the Respon-
dent has not cited any new evidence or special circumstances warrant-
ing a hearing in this proceeding and that summary judgment is appro-
priate.
provide the requested information. We find that these
refusals constitute an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after October 14, 2002, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and to
furnish 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.
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, La Gloria Oil and Gas Company, Tyler,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Paper, Allied-Industrial,
Chemical & Energy Workers, International Union, Local
4-202 as the exclusive bargaining representative of the
employees in the bargaining unit, and refusing to furnish
the Union information that is relevant and necessary 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:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
INCLUDED: All truck drivers employed by the
Employer on the payroll of PSI at its Tyler, Texas
facility.
EXCLUDED: All other employees, including
drivers of any common carriers, guards and supervi-
sors as defined in the Act.

(b) Furnish the Union the information it requested on
October 16, 2002.
(c) Within 14 days after service by the Region, post at
its facility in Tyler, Texas, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 16 after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices are not altered, 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 facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since October 14, 2002.
(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.

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 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 States Government

The National Labor Relations Board had found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT refuse to bargain with Paper, Allied-
Industrial, Chemical & Energy Workers, International
Union, Local 4-202 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 represen-
tative of the unit employees.
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 bar-
gaining unit:

INCLUDED: All truck drivers employed by us
on the payroll of PSI at our Tyler, Texas facility.
EXCLUDED: All other employees, including
drivers of any common carriers, guards and supervi-
sors as defined in the Act.

WE WILL furnish the Union the information it re-
quested on October 16, 2002.

LA GLORIA OIL AND GAS COMPANY