Palestine Telephone Co.

PALESTINE TELEPHONE COMPANY NoTE.-We will notify Ronald Thorpe and each of the other above-named employees if presently serving in the Armed Forces of the United States of his rights to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5586. Palestine Telephone Company and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702. Case 14- CA-3840. June 21,1966 DECISION AND ORDER On April 18, 1966, Trial Examiner Paul Bisgyer issued his Deci- sion in the above-entitled proceeding, granting the motion of the Gen- eral Counsel for "Judgment on the Pleadings," and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended. The Trial Examiner recommended that the Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing the finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order]. l Respondent excepts to the Trial Examiner 's statement that the Acting Regional Di- rector properly relied on the Board's Decision and Order in Case 14-CA-3495 ( 154 NLRB 1325 ) in counting Maddox 's challenged ballot and in sustaining the challenged ballot of Kent. We do not agree with the Trial Examiner to the extent that his reference to such reliance may possibly imply that the Acting Director deferred to the 'Board's view in the unfair labor practice case in making his representation proceeding, determinations For the Acting Director stated merely that he agreed with the Board and there is nothing to indicate that the rulings on challenged ballots were not independently made by him 159 NLRB No. 79. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding , with all parties represented , was heard before Trial Exam- iner Paul Bisgyer on February 14, 1966 , in St. Louis, Missouri , on the com- plaint of the General Counsel' and the second answer of Palestine Telephone Company, herein called the Respondent . The only question presented for determination is whether the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended , when it concededly refused to recognize and, on request, bargain with, International Brotherhood of Electri- cal Workers, AFL-CIO, Local Union No. 702, herein called the Union, as the duly certified bargaining representative of the Respondent 's employees in an appropriate unit. In its second answer, the Respondent also moved to strike various allegations of the complaint essential to the General Counsel 's case. The General Counsel , in turn, filed a motion at the hearing to strike the Respondent's affirmative defenses and for "Judgment on the Pleadings." Con- sistent with his motion, the General Counsel offered no testimony or other' evi- dence but rested on the admissions in the second answer and the Regional Director's certification of the Union. In the course of the hearing, the Respondent made various offers of proof considered below, which were rejected. In view of my findings below, I deny the Respondent 's motion to strike and grant the General Counsel 's motion for "Judgment on the Pleadings." How- ever, I find it unnecessary to strike the various paragraphs of the second answer, as the General Counsel requests , because these allegations basically relate to the Respondent's contentions, although for reasons later discussed , I find these contentions without merit. After hearing, briefs were received from the Respondent and the Union. Upon the entire record in the case , including the record in Case 14-RC-4930,2 the certification issued therein, and the Board 's Decision and Order in Pales- tine Telephone Company, Case 14-CA-3495 (154 NLRB 1325), and having given due consideration to the motions of the General Counsel and the Respondent and the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is engaged in providing and perform- ing telephone services at its facility in Palestine, Illinois. During the past year, its gross revenues derived from such operations exceeded $100,000, which included approximately $20,000 from toll calls to points outside the State. It is undisputed, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effec- tuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events The facts concerning the relevant events are undisputed and are as follows: On September 11, 1964, in a representation proceeding instituted by the Union (Case 14-RC-4930), the Respondent and the Union executed an Agree- ment for Consent Election in a unit of the Respondent's employees consisting I The complaint Is based on a charge filed by the Union on December 13, 1965, a copy of which was duly served on the Respondent by registered mail on or about the same day. i I take official notice of the proceedings in Case 14-RC-4930, In which the certification here in question was issued. Under Section 9 ( d) of the Act , the record in the representa- tion proceeding will be part of the record before the appropriate United States Circuit Court of Appeals in the event the Board sustains the finding of unlawful refusal to bargain hereinafter made and there is a petition for enforcement or review of the'Board's 'bargain- ing order. PALESTINE TELEPHONE COMPANY 829 of "[a] 11 construction , installation and maintenance employees . excluding office clerical and professional employees, guards,- all other employees and supervisors as defined in the Act." This Agreement, which was approved by the Regional Director on September 14, 1964, also provides that the election shall be held in accordance with the National Labor Rela- tions Act, the Board's Rules and Regulations, and the applicable pro- cedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including .questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election . . . . -Pursuant to this Agreement, the Regional Director on the following Septem- ber 23d conducted a secret election which resulted in two ballots being cast in favor of the Union, two ballots against the Union, and two ballots, one cast by Richard Maddox, and the other by Thomas Kent, being challenged. On December 7, 1964, the Union filed unfair labor practice -charges. against the Respondent in Case 14-CA-3495 and a complaint subsequently issued thereon, alleging, in substance, that the Respondent changed the employment status of Maddox and Kent for the purpose of affecting their eligibility to vote in the election, in violation of Section 8(a)(1) and (3) of the Act. Since reso- lution of the issues in that case would also determine the voting eligibility of these two individuals, the Regional Director on December 14, 1964, issued an interim report on challenges to the effect that ruling on the challenges would' be deferred pending disposition of the above unfair labor practice charges. In so doing, the Regional Director acted in accordance with the 'authority vested in him by the parties in the Agreement for Consent Election which in relevant part states: - If the challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. The method of investigation of . challenges, including the question whether a hearing should be held in connection therewith, shall be -deter- mined by the Regional Director, whose decision shall be final and binding. On September 20, 1965, the Board issued its Decision and Order in Case 14-CA-3496 (154 NLRB 1325) holding that the Respondent had "discrimina- torily transferred Maddox from a dual function position to a permanent clerical status for the purpose of eliminating his vote in the pending election thereby interfering with his and other employees' statutory rights, and that by so doing the Respondent violated Section 8(a)(1) and (3) of the Act." To remedy this unfair labor practice, the Board ordered the Respondent to restore Maddox to his former dual function status, without prejudice to the rights and privileges previously enjoyed by him. With respect to Kent, the Board found that he was hired as a temporary employee and "remained in that status through the eligi- bility period" but that the evidence did not establish that the Respondent had changed his classification to that of a permanent employee in order to make him eligible to cast an antiunion vote in the election. On September 23, 1965, the Acting Regional Director issued a Decision and Order under Agreement for Consent Election in which he found, in agreement with the Board, that Maddox would have occupied a position in the unit dur- ing the eligibility period were it not for the Respondent's discrimination against him and therefore found him eligible to vote and overruled the challenge to his ballot. As for Kent, the Acting Regional Director also found, in agree- ment with the Board, that he was a temporary employee during the eligibility period and, therefore, was ineligible to vote and substained the challenge to his ballot. On October 27, 1965, Maddox's ballot was opened and counted, resulting in a final tally of three votes for the Union and two votes against it. In accord- ance with the results of the election, the Regional Director on November 1, 1965, issued a Certification of Representative that the Union was the exclusive representative of all the employees in the above-described unit for the pur- poses of collective bargaining with respect to rates of pay , hours of employment, and other conditions of employment. On or about November 29, 1965, the Union sent the Respondent a letter, requesting a date to begin contract negotiations. By letter dated November 30, 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent rejected the Union's request because "[W] e do not feel that you are the lawful representative of our employees This refusal to recognize the Union continued to the time of the hearing herein. B. Concluding findings It is perfectly clear from the foregoing statement of undisputed facts that the Respondent failed to fulfill its statutory obligation to recogmze and bargain with the Union, as the duly certified bargaining representative of the Respondent's employees in an appropriate unit concerning rates of pay , hours, and other con- ditions of employment, unless the Respondent had a legitimate reason for not honoring the certification. The Respondent contends , in effect, that the Union's certification is invalid because the Regional Director relied upon the Board 's Decision in Case 14-CA-3495 to open up and count Maddox 's challenged ballot which gave the Union its victory by that one vote, and to sustain the challenge to the vote cast by Kent. Essentially, it is the Respondent's position that the Board's Decision lacked finality since the Board had not petitioned a circuit court of appeals for enforcement of its order. I find this contention wholly untenable. As noted above, the parties in their Agreement for Consent Election mutually recognized the Regional Director's unqualified authority to resolve the challenges to ballots which were determinative of the results of the election . In unequiv- ocal terms, the agreement provides that the "method of investigation of .. . challenges, including the question of whether a hearing should be held in con- nection therewith, shall be determined by the Regional Director whose decision shall be final and binding." It has been long settled that a Regional Direc- tor's eligibility determination made pursuant to such an agreement is unim- peachable, unless shown to be arbitrary or capricious by the complaining party.3 It cannot be seriously urged that the Regional Director acted in arbitrary or capricious manner here when, in overruling the Respondent's challenge to Mad- dox's ballot and sustaining the challenge to Kent's vote , he relied upon the Board's holding in Case 14-CA-3495, an adversary proceeding in which the Respondent vigorously contested the charges leveled against it. It thus follows that, even though the Board's Decision and Order in that case has not been tested on appeal, the Regional Director's certification is unassailable. In any event, there is an even more fundamental weakness in the Respond- ent's position that the Board's Decision and Order in Case 14-CA-3495 was not a final determination upon which the Regional Director could rely. It needs no citation of authority that a Board order issued in a Section 10 unfair labor prac- tice proceeding, as is the case in question , is a final determination appealable to an appropriate court of appeals . Specifically, Section 10 (e) of the Act empowers the Board to petition for enforcement of such an order, while Sec- tion 10(f) permits any person aggrieved by the order to obtain review. Sig- nificantly, there is nothing in these provisions which in anywise diminishes the finality of the order simply because enforcement or review is not sought. Indeed, Section 10 (g) of the Act expressly provides that "[t]he commencement of proceedings under subsection ( e) or (f) [of section 10] shall not, unless specifically ordered by the court, operate as a stay of the Board's order." In the final analysis, if the Respondent honestly believes that it is being preju- diced and denied due process of law by the Board's failure to petition for enforcement, no plausible reason has been shown why it could not itself seek judicial review of the Board's Order under Section 10(f) as an aggrieved per- son and petition the court for a stay of the Board's Order. As the Second Cir- cuit Court of Appeals so aptly stated,4 the "Constitution protects procedural regularity, not as an end in itself, but as a means of defending substantive interests." Here, not only is there no evidence of procedural irregularity on the part of the'Board or the Regional Director, but actually it is the Respond- ent's own deliberate choice not to defend its "substantive interests " by exercis- ing its statutory right to have judicial review of the Board's Order. In these cir- cumstances , it rests poorly with the Respondent to charge the Board and the Regional Director with deprivation of due process of law. In sum, I find that 3 See, for example, The Diversey Corporation, 139 NLRB 572, 575-577, enfd. 325 F 2d 489 (C.A. 7). 4 Pay v. Douds, 172 F 2d 720, 725 (C.A. 2). PALESTINE TELEPHONE COMPANY 831 the Regional Director's reliance on the Board's Decision and Order in Case 14-CA-3495 in counting Maddox's challenged ballot and in sustaining the chal- lenge to the ballot cast by Kent, whom he found to be a temporary employee, was not improper, much less arbitrary or capricious. In a related argument, the Respondent contends that the Trial Examiner's refusal to receive in evidence the transcript of testimony in Case 14-CA-3495 leaves the record in the present case barren of any evident to substantiate the 8(a)(5) allegations of the complaint or to meet the standards of judicial review. I find this' argument also seriously wanting. It is quite' clear that the transcript of testimony was offered by the Respond- ent in support of its position that the Board's findings were erroneous. The Trial Examiner excluded such testimony because it was an obvious attempt to relitigate issues already adjudicated by the Board and adopted by the Regional Director pursuant to his authority under the Agreement for Consent Election. Plainly, the determinations thus made were binding on the Trial Examiner and, as in any case involving an asserted invalidity of a certification, it is not for a Trial Examiner to go behind the certification and permit a retrial of the under- lying facts unless the proffered evidence was newly discovered and unavailable at the, time of the representation proceeding.5 Certainly, the transcript here is not of that type of newly discovered evidence that I was required to receive. The Respondent also attempts to justify its refusal to honor the certification on the ground that in August 1965, at a time when the Trial Examiner's Deci- sion in Case 14-CA-3495 was before the Board on exceptions filed by the Respondent and the General Counsel, it "learned on an issue of credibility, that Charging Party herein and in [the cited case] . . . had by design planned to place one of the alleged discriminatees in said case in the bargaining unit, since if he were excluded, Charging Party would have no majority status among Respondent's employees." In support of this contention, the Respondent offered to prove at the hearing that, if permitted, the Respondent's manager, Frank Kent, would testify that at the indicated time, a named employee informed him that "it was his understanding and that he had been told directly by fellow employees that the reason that . . . Richard Maddox was being pushed so hard as far as being in the bargaining unit was concerned was that everyone knew that if Maddox didn't get in they wouldn't win the election." The proffered evidence was rejected by the Trial Examiner. Apart from the apparent worth- less character of the hearsay testimony in question, the Respondent furnished no explanation why it did not call the Board's attention to the so-called newly dis- covered evidence while -the Board was still considering Case 14-CA-3495, or why it did not present this evidence to the Regional Director when he subse- quently ruled on the challenged ballots. At any rate, I have great difficulty in understanding how Maddox's credibility could be impugned because the Union was exerting its efforts to secure his inclusion in a unit of employees with whom Maddox shared a "community of interest," as the Board found in Case 14- CA-3495. In brief, I am not persuaded that the Respondent's possession of the indicated information exculpated it from performing its statutory bargaining obligation. Finally, the Respondent argues, in substance, that the certification is ineffec- tual because about June 1965, subsequent to the election and before the Regional Director ruled on Maddox's challenged ballot, the Respondent abol- ished Maddox's position and terminated his employment, thereby causing a change in the composition of the unit and the Union's loss of majority. The Respondent further urges that the Trial Examiner erred in excluding testimony to this effect. However, assuming its materiality, the Respondent offered no explanation for not submitting such evidence to the Regional Director at the, time he ruled on the Maddox challenged ballot and issued the certification. But, in any event, I find that if Maddox's job were actually abolished, this did not alter the unit so substantially as to nullify the results of the election. Fur- thermore, I find that, whatever loss ' of majority the Union suffered as an inci- dent of Maddox's termination, the Respondent was not relieved of its duty to bargain with 'the certified representative. It is firmly established law that a certification must be honored for a reasonable period, ordinarily 1 year, in the 5N.L.R.B. v. Worcester Woolen Mills Corporation, 170 F2d 13, 16 (CA. S), enfg 74 NLRB 1071, cert. denied 336 U .S. 903, where the court observed that "a single trial of the issue is enough, and it is within the Board 's discretionary power to refuse to reconsider the issue." 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of unusual circumstances, despite any interim loss of majority.6 Such unusual circumstances have not been shown here. Accordingly, I conclude that, by refusing to recognize and bargain with the Union, as the duly certified representative of the Respondent's employees in an appropriate unit, the Respondent has violated Section 8(a)(5) and (1) of the Act., IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section. III, above, occurring in connection with its operations set forth in section I, above, have a close, inti- mate, and a substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing com- merce and its free flow. , V. THE -REMEDY Pursuant to Section 10(c) of the Act, I recommend that" tlie Respondent cease and desist from engaging in the unfair labor practices found in like and related. conduct, and 'take certain affirmative action designed to effectuate the policies of the' Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation, I recommend that it be directed to bargain on request with the Union, as 'the exclusive representative of its employees in the, appropriate unit d'e'scribed' above, and, if an 'understanding is reached, embody such understand- ing in -a 'signed agreement. I also recommend that the `Respondent post at its place of business the notice attached to this Decision marked "Appendix." - Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW - . 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All construction, installation, and maintenance employees of the Respond- ent at its Palestine, Illinois, operation, excluding office clerical and professional employees, guards, all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing since about November 30, 1965, to recognize and bargain col- lectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Palestine Tele- phone Company, Palestine, Illinois, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with International Brother- hood of Electrical Workers, AFL-CIO, Local Union No. 702, as the exclusive representative of the Company's employees in the unit described below, con- cerning rates of pay, wages , hours of employment, and other conditions of employment: all construction , installation, and maintenance employees of the Respondent at its Palestine , Illinois, operation , excluding office clerical and pro- fessional employees , guards, all other employees , and supervisors as defined in the Act. s Ray Brooks v. N L R B., 348 U.S. 96; N L.R B. v. Worcester Woolen Mills Corporatiov, supra, 17. PALESTINE TELEPHONE COMPANY 833 (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their bargaining rights guaranteed in Section .7 of the Act. 2. Take the following affirmative action which is necessary to effectuate' the policies of the Act: (a) Upon request, bargain collectively with the above-named Union, as the exclusive representative of its employees in the above-described unit, concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its operations in Palestine, Illinois, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by the Respondent's represen- tative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .8 71n the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 8In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to recognize and bargain collectively with International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702, as the exclusive representative of the Company's employees in the unit described below, concerning rates of pay, wages, hours of employment, and other condi- tions of employment: All construction, installation and maintenance employees of the Respond- ent at its Palestine, Illinois, operation, excluding office clerical and pro- fessional employees, guards, all other employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their bargaining rights guaranteed in Sec- tion 7 of the Act. WE WILL bargain collectively, upon request, with the above-named Union, as the exclusive representative of our employees in the above-described unit, concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, WE WILL embody such understanding in a signed agreement. PALESTINE TELEPHONE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Tele- phone 622-4156. 243-084-07-vol. 159-54