Lamar Advertising of Janesville

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 96 (N.L.R.B. 2004)

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.
The Lamar Company, LLC d/b/a Lamar Advertising
of Janesville and International Union of Painters
and Allied Trades, District Council No. 7, AFL–
CIO. Case 30–CA–16706–1
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
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 a charge filed on January 27, 2004, the
General Counsel issued the complaint on February 25,
2004, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case 30-
RC-6254. (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 denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On March 16, 2004, the General Counsel filed a Mo-
tion for Summary Judgment. On March 19, 2004, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On April 2, 2004, the Respondent
filed a response. On April 20, 2004, the General Counsel
filed a reply to the Respondent’s response.
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, but con-
tests the validity of the certification based on its objec-
tions to the election in the representation proceeding.
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.1 We

1 Our decision in the underlying representation proceeding is re-
ported at 340 NLRB No. 114 (2003). In its answer and response to the
notice to show cause, the Respondent contends that we should recon-
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). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, has been
engaged in the business of outdoor advertising at its
Janesville, Wisconsin facility. During the calendar year
preceding issuance of the complaint, the Respondent, in
conducting its operations above, sold and shipped goods
and materials valued in excess of $50,000 directly to
customers located outside the State of Wisconsin. We
find that the Respondent is an employer engaged in

sider that decision in light of the new standard subsequently advocated
by two of the four Board Members who participated in Accubilt, Inc.,
340 NLRB No. 161 (2003). In that case, Chairman Battista and Mem-
ber Schaumber noted that they

would set aside an election in circumstances where the “critical pe-
riod” misconduct of the third party affected a determinative number
of voters, even if that conduct did not “create a general atmosphere
of fear and reprisal” [the prevailing third-party standard under
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984)].

Slip op. at 3, fn. 6. Here, the only third-party conduct involved al-
leged threats made by prounion employees against employee Jason
Dygart (Respondent’s Objections 3 and 4). We addressed that alleged
conduct in detail in our decision in the representation proceeding. We
noted that the Respondent did not contend that the threat to Dygart
created a “general atmosphere of fear and reprisal,” but relied instead
on its argument, which we rejected, that one of the prounion employees
was a union agent. We stated that “arguably, our inquiry could end
here.” Nevertheless, we further found that “even assuming, however,
that the proper focus of inquiry is on the threat in relation to Dygart
alone—given that a one-vote switch could have changed the outcome
of the election—we do not find the conduct objectionable.” Specifi-
cally, we found that the record did not show that “under all the circum-
stances, a reasonable employee in Dygart’s position would have been
put in fear by the threat.” 340 NLRB No. 114, slip op. at 3. In short,
we fully considered and addressed in our prior decision whether the
third party conduct here warranted a new election because of its impact
on a determinative number of voters, even though it did not “create a
general atmosphere of fear and reprisal.” Further, the Respondent has
not offered any newly discovered and previously unavailable evidence
with respect to that issue. Accordingly, we deny the Respondent’s
request for reconsideration.
Member Schaumber notes that while he and the Chairman, in the
underlying representation proceeding here, did cite to Westwood Hori-
zons Hotel and its standard (that elections based on third-party threats
will be set aside only if the conduct was so aggravated as to create a
general atmosphere of fear and reprisal), they nonetheless conducted an
analysis, summarized above, in the underlying representation proceed-
ing (See 340 NLRB No. 114, slip op. 3–4) which presaged their later
position in Accubilt and which fully took into account the considera-
tions they articulated in Accubilt. Accordingly, Respondent’s request
for reconsideration is appropriately denied.
341 NLRB No. 96
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held January 5, 2001, the Union
was certified on October 31, 2003, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time construction em-
ployees, electricians, billposters, sign painter-artists,
sign erectors and brushcutters employed by the Em-
ployer at or out of its 5101 Highway 51 South, Janes-
ville, Wisconsin facility; excluding all office employ-
ees, clerical employees, sales employees, charting
manager, managerial employees, temporary employ-
ees, guards and supervisors as defined in the Act, and
all other employees.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On December 22, 2003, the Union requested the Re-
spondent to bargain. The Respondent, however, refused
to do so. We find that the Respondent has thereby
unlawfully failed and refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing 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 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 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.
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, The Lamar Company, LLC d/b/a Lamar
Advertising of Janesville, Janesville, Wisconsin, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union of
Painters and Allied Trades, District Council No. 7, AFL-
CIO, as the exclusive bargaining representative of the
employees in the bargaining unit.
(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 full-time and regular part-time construction em-
ployees, electricians, billposters, sign painter-artists,
sign erectors and brushcutters employed by the Em-
ployer at or out of its 5101 Highway 51 South, Janes-
ville, Wisconsin facility; excluding all office employ-
ees, clerical employees, sales employees, charting
manager, managerial employees, temporary employ-
ees, guards and supervisors as defined in the Act, and
all other employees.

(b) Within 14 days after service by the Region, post at
its facility in Janesville, Wisconsin, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
30, 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

2 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.”
LAMAR ADVERTISING OF JANESVILLE 3
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 December
22, 2003.
(c) 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. April 30, 2004

Robert J. Battista, Chairman

Wilma B. Liebman, Member

Peter C. Schaumber, Member

(SEAL) 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 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 International Un-
ion of Painters and Allied Trades, District Council No. 7,
AFL-CIO, as the exclusive representative of the employ-
ees 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 fol-
lowing bargaining unit:

All full-time and regular part-time construction em-
ployees, electricians, billposters, sign painter-artists,
sign erectors and brushcutters employed by the Em-
ployer at or out of its 5101 Highway 51 South, Janes-
ville, Wisconsin facility; excluding all office employ-
ees, clerical employees, sales employees, charting
manager, managerial employees, temporary employ-
ees, guards and supervisors as defined in the Act, and
all other employees.
THE LAMAR COMPANY, LLC D/B/A LAMAR
ADVERTISING OF JANESVILLE