Garrison Telephone Co.

GARRISON TELEPHONE CO. 839 Garrison Telephone Company and Communications Workers of America, AFL-CIO. Case 23-CA-5033 June 21, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on March 28, 1974, by Communications Workers of America, AFL-CIO, herein called the Union, and duly served on Garrison Telephone Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on April 2, 1974, 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 March 15, 1974, following a Board election in Case 23-RC-4024, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent'semployees in the unit found appropriate; I and that, commencing on or about March 25, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 5, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 12, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 18, 1974, 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. Respondent thereafter filed a response to Notice To Show Cause, entitled "Re- sponse in Opposition to Motion To Transfer and Continue Case Before the Board and Motion for Summary Judgment." Pursuant to the provisions of Section 3(b) of the 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 to the complaint and response to the Notice To Show Cause, the Respondent contends that the certification of the Union in the underlying representation case was improper for the reasons set forth in its objections and exceptions in that proceeding, and that the Board erred in not directing a hearing on the issues raised therein. Our review of the record herein, including the record in Case 23-RC-4024, indicates that the parties entered a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director on November 27, 1973. Thereaft- er, on December 10, 1973, the Respondent filed a Motion to Dismiss Petition and requested that it be allowed to withdraw from the stipulation on the grounds that a supervisor had been actively cam- paigning on behalf of the Union and had obtained authorization cards supporting the Union's petition. Following an administrative investigation during which all the parties were given the opportunity to submit evidence, the Regional Director on December 12, 1973, issued an order denying the Respondent's motion and request, as the investigation failed to reveal that the conduct of the alleged supervisor was sufficient to taint the Union's adequate showing of interest. The election pursuant to the stipulation was conducted on December 20, 1973, and resulted in a 16-to-2 vote in favor of the Union, with 1 challenged ballot. The Respondent filed timely objections to conduct affecting the results of the election, with an attached affidavit of the supervisor, alleging in substance that without its knowledge and consent the supervisor had signed a list indicating interest in and approval of the Union, had attended and participat- ed in union meetings at which she indicated approval of the Union in the presence of other employees, had executed an instrument authorizing the Union to represent her, and had stated to the employees her support of the Union and the benefits to be had by union representation. Respondent also protested the Regional Director's ruling on its Motion to Dismiss Petition and request to withdraw from the stipula- tion, and sought to have the election set aside or, in the alternative, to have a hearing on its objections. ' Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); Case 23-RC-4024 as the term "record" is defined in Secs. 102.68 and Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended . See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); 211 NLRB No. 130 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director, following an investigation, issued his Report and Recommendations on Objec- tions on January 16, 1974, in which he found that the Respondent's objections did not raise substantial or material issues requiring a hearing, and that four of the objections dealt with conduct occurring prior to the filing of the petition on October 26, 1973, and thus did not constitute a basis upon which to set aside the election. With regard to the remaining objections concerning the supervisor's active support of the Union, the Regional Director concluded, especially on the basis of the Respondent's preelec- tion letter to the employees, that employees could not have been misled by any implication arising from the supervisor's conduct that the Respondent favored the Union and that they did not have anything to fear from the supervisor if they rejected the Union. Finally, he noted that the investigation did not reveal any additional evidence to support the motion to dismiss. Accordingly the Regional Director recom- mended that the objections be overruled in their ,entirety and the Union be certified. The Respondent filed timely exceptions, with supporting brief, attacking the Regional Director's findings and recommendations , and requesting that either the election be set aside on its objections or, in the alternative, a hearing be held thereon. After consideration of the entire record, the Board issued a Decision and Certification of Representative on March 15, 1974, in which it found the Respondent's exceptions raised no material or substantial issues of fact or law warranting reversal of the Regional Director or requiring a hearing, and adopted the Regional Director's findings, conclusions, and rec- ommendations, and certified the Union. It thus appears that the Respondent in this unfair labor practice proceeding is attempting to relitigate issues, including the necessity of a hearing, previous- ly litigated and adversely determined to it in the underlying representation case. 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.2 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 1. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation, is engaged in providing telephone service to the public, and has its principal office in Killeen, Texas, with the facilities involved herein being located in West Columbia, Texas. During the past 12 months, a representative period, Respondent in the course and conduct of its business operations derived a gross revenue from its operations in excess of $100,000. During the same period of time, it purchased goods and materials valued in excess of $50,000 from suppliers located outside the State of Texas, which goods were shipped directly to Respondent. 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 hourly employees, including traffic operators, commercial representatives, installer repairmen, test clerks, linemen, janitors, and working crew chiefs employed by the Employer at its West Columbia, Texas, facilities; excluding all other employees, guards, watchmen, and supervisors as defined in the Act. 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). GARRISON TELEPHONE CO. 841 2. The certification On December 20, 1973, 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 March 15, 1974, 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 March 20, 1974, 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 March 25, 1974, 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 March 25, 1974, 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 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. Garrison Telephone Company 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 meaning of Section 2(5) of the Act. 3. All hourly employees, including traffic opera- tors, commercial representatives, installer repairmen, test clerks, linemen, janitors, and working crew chiefs employed by the Employer at its West Columbia, Texas, facilities; excluding all other employees, guards, watchmen, 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. Since March 15, 1974, 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 March 25, 1974, 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 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Garrison Telephone Company, West Columbia, 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 hourly employees, including traffic operators, commercial representatives, installer repairmen, test clerks, linemen, janitors, and working crew chiefs employed by the Employer at its West Columbia, Texas, fa. ilities ; excluding all other employees, guards, watchmen, and supervisors 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 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 West Columbia, Texas, facilities copies of the attached notice marked "Appendix ."3 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, 3 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." 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. 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 hourly employees, including traffic operators, commercial representatives, in- staller repairmen, test clerks, linemen, jani- tors, and working crew chiefs employed by the Employer at its West Columbia, Texas, facilities; excluding all other employees, guards, watchmen, and supervisors, as de- fined in the Act. GARRISON TELEPHONE COMPANY (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, 1125 Brazos Street, Houston, Texas 77002, Telephone 713- 226-4296..