Topside Construction, Inc.

National Labor Relations Board - Board Decisions

May 17, 2000

331 N.L.R.B. 16 (N.L.R.B. 2000)

331 NLRB No. 16
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.
Topside Construction, Inc. and Operating Engineers,
Local Union No. 3, International Union of Oper-
ating Engineers, AFL–CIO. Case 20–CA–
29481–1
May 17, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
LIEBMAN
Pursuant to a charge and an amended charge filed on
February 4 and March 7, 2000, respectively, the General
Counsel of the National Labor Relations Board issued a
complaint on March 8, 2000, alleging that the Respon-
dent has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing the Union’s request to
bargain following the Union’s certification in Case 20–
RC–17245. (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.
On April 14, 2000, the Ge neral Counsel filed a Motion
for Summary Judgment. On April 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 Union filed a joinder in the General
Counsel’s motion on April 24, 2000.
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 to be rele-
vant and necessary to the Union’s role as bargaining rep-
resentative, but attacks the validity of the certification on
the basis of its objections to the election in the represen-
tation 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. 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 factual issues warranting
a hearing regarding the Union’s request for information.
The complaint alleges, and the Respondent admits, that
by letter of January 25, 2000, the Union requested that
the Respondent furnish it with the names, addresses, job
classifications, and wage rates of all current unit employ-
ees.
The Respondent’s answer denies this allegation on the
basis that it “lacks sufficient knowledge to admit or
deny” that the information requested by the Union is
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit. Contrary to the Respondent’s de-
nial, however, it is well established that the foregoing
type of compensation and employment information is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request unless its rele-
vance is rebutted.1 The Respondent has not attempted to
rebut the relevance of the information requested by the
Union. Instead, the Respondent apparently is relying
solely on its challenge to the Union’s certification as the
grounds for its denial that it has a duty to provide the
Union with the requested information. We therefore find
that no material issues of fact exist with regard to the
Respondent’s refusal to furnish the information sought
by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
has requested.
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 Carmichael, Cali-
fornia, has been engaged in the construction industry as a
provider of construction site preparation services. Dur-
ing the calendar year ending December 31, 1999, the
Respondent, in conducting its business operations de-
scribed above, provided services valued in excess of
$50,000 to other business entities, each of which meets
the Board’s standards for the assertion of jurisdiction on
a direct basis. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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 April 25, 1997,2 the Union
was certified on February 8, 2000, as the exclusive col-

1 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp., 233 NLRB 109 (1977).
2The complaint erroneously alleges that the election was held on
January 18, 2000. The record in the representation proceeding estab-
lishes that the election was held on April 25, 1997. On January 18,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
lective-bargaining representative of the employees in the
following appropriate unit:

All full time and regular part time heavy equipment op-
erators employed by the Employer within Sacramento,
Placer, El Dorado, and Yolo counties; excluding all
other employees, office clerical employees, salesmen,
professional employees, guards and supervisors as de-
fined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since January 25, 2000, the Union has requested the
Respondent to bargain and to furnish information, and
since February 2, 2000, the Respondent has refused. We
find that this refusal constitutes 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 February 2, 2000, 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 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, Topside Construction, Inc., Carmichael,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

2000, the Region issued and served on the parties the revised tally of
ballots showing that the Union had received a majority of the valid ion.
inadvertent error regarding the date of the election is immaterial and
does not affect the result reached here.
(a) Refusing to bargain with Operating Engineers, Lo-
cal Union No. 3, International Union of Operating Engi-
neers, AFL–CIO, as the exclusive bargaining representa-
tive of the employees in the bargaining unit, and refusing
to furnish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining representa-
tive 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 full time and regular part time heavy equipment op-
erators employed by the Employer within Sacramento,
Placer, El Dorado, and Yolo counties; excluding all
other employees, office clerical employees, salesmen,
professional employees, guards and supervisors as de-
fined in the Act.

(b) Furnish the Union the information that it requested
on about January 25, 2000.
(c) Within 14 days after service by the Region, post at
its facility in Carmichael, California, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
20 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 February 2,
2000.

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 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.”
TOPSIDE CONSTRUCTION, INC. 3
(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. May 17, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

Wilma B. Liebman, 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 the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT refuse to bargain with Operating Engi-
neers, Local Union No. 3, International Union of Operat-
ing Engineers, AFL-CIO as the exclusive representative
of the employees in the bargaining unit, and WE WILL
NOT refuse to furnish the Union information that is rele-
vant 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 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:

All full time and regular part time heavy equipment op-
erators employed by us within Sacramento, Placer, El
Dorado, and Yolo counties; excluding all other em-
ployees, office clerical employees, salesmen, profes-
sional employees, guards and supervisors as defined in
the Act.

WE WILL provide the Union with the information it re-
quested on about January 25, 2000.
TOPSIDE CONSTRUCTION, INC.