Answer, Inc., of San Antonio

ANSWER, INC. Answer, Inc., of San Antonio and Communications Workers of America, AFL-CIO. Case 23-CA- 4458 November 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on August 8, 1972, by Communications Workers of America, AFL-CIO, herein called the Union, and duly served on Answer, Inc., of San Antonio, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on August 16, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge' were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on April 7, 1972, following a Board election in Case 23-RC-3629 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commenc- ing on or about July 14, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 23, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 30, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 7, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, entitled Respondent's Answer in Opposition to General Counsel's Motion for Summary Judg- ment. Pursuant to the provisions of Section 3(b) of the 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Official notice is taken of the record in the representation proceeding, Case 23-RC-3629, as the term "record" is defined in Sees. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See 415 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer and, in its Opposition to the General Counsel's Motion for Summary Judgment, Respon- dent denies the validity of the election and the resultant certification of the Union in Case 23-RC-3629 in which the Regional Director certified the Union as exclusive bargaining representative of employees in a unit conceded by Respondent to be appropriate. We do not agree. Pursuant to the Regional Director's Decision and Direction of Election an election was conducted in which, among a group of 45 eligible voters, 20 cast ballots for, and 19 against, the Union, and one ballot was void. Respondent filed timely objections to the conduct of the election and to conduct affecting the results of the election. The Regional Director thereupon ordered a hearing for the purpose of taking evidence on the issues raised by the Respon- dent's objections. The objections alleged, in sub- stance, that the Union engaged in a campaign of misrepresentation prior to the election; that the Union employed threats, coercion, and intimidation against employees who opposed or refused to support the Union; and that the Union's showing of interest was tainted by supervisory participation in the circulation of union authorization cards. In his Report on Objections, the Hearing Officer concluded that no substantial or material issues affecting the conduct of the election or conduct affecting the results of the election had been raised and recommended that Respondent's objections be overruled in their entirety. Respondent filed timely exceptions to the Hearing Officer's report and a supporting brief in which it reiterated the matters urged in its objections to the election. The Regional Director thereafter issued a Supplemental Decision, Order and Certification of Representative in which he adopted the findings and conclusions of the Hearing Officer and certified the Union as, exclusive bargaining representative in the appropriate unit. Respondent thereupon filed Exceptions to the Regional Director's Supplemental Decision, Order and Certification of Representative in which it reiterates its exceptions to the Hearing Officer's report and directed the Board's attention to the brief LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C.A 4, 1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co v Penello, 269 F Supp. 573 (D C Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 200 NLRB No. 62 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it had previously filed with the Regional Director in support of these exceptions. In a telegraphic commu- nication of May 10, 1972, the Board denied Respon- dent's request for review as not raising any substan- tial issues warranting review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its princi- pal office and place of business in San Antonio, Texas, where it is engaged in the provision of commercial and noncommercial telephone answering services, wake-up services, car telephone services, and radio paging services. During the past year Respondent's gross income was in excess of $430,000. During the same period Respondent performed services in excess of $50,000 for customers within the State of Texas, each of which met the Board's jurisdictional standards other than indirect inflow and outflow standards. Further, during the same period, Respondent purchased mobile tele- phone and paging equipment valued at approximate- ly $30,000, which equipment was shipped to Respon- dent's facility from points located outside the State of Texas. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and part-time operators and plant clerical employees employed by Respondent at its San Antonio, Texas, facility, excluding all office clerical employees, guards, watchmen and super- visors as defined in the Act. 2. The certification On September 15, 1971, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 23, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 7, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 7, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 14, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 14, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor 3 See Pittsburgh Plate Glass Co v N.L.RB., 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Sees 102.67(f) and 102 69(c). ANSWER, INC. practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 , enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Answer, Inc., of San Antonio is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and part-time operators and plant clerical employees employed by Respondent at its San Antonio, Texas, facility, excluding all office clerical employees, guards, watchmen and supervi- sors as defined in the Act, constitute a unit 417 appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 7, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 14, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Answer, Inc., of San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and part-time operators and plant clerical employees employed by Respondent at its San Antonio, Texas, facility, excluding all office clerical employees, guards, watchmen and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facility at San Antonio, Texas, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 23 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that 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 National Labor Relations Board" shall read "Posted pursuant to a Judgment 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Com- munications Workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and part-time operators and plant clerical employees employed by Respondent at its San Antonio, Texas, facility, excluding all office clerical employees, guards, watchmen and super- visors as defined in the Act. ANSWER, INC., OF SAN ANTONIO (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, Fourth Floor, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.