Time Warner Cable

1 324 NLRB No. 25 1 Formerly Paragon Communications d/b/a Paragon Cable of New- burgh, New York. 2 Member Higgins did not participate in the underlying representa- tion proceeding. However, he agrees with his colleagues that the Re- spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro- ceeding and that summary judgment is, therefore, appropriate. 3 The Respondent’s answer states that the Respondent is without knowledge or information sufficient to form a belief as to whether the Union is a 2(5) labor organization. However, by entering into a Stipulated Election Agreement in the underlying representation pro- ceeding, the Respondent effectively agreed that the Union is a labor organization. At no time during the underlying representation pro- ceeding did the Respondent raise a question concerning the Union’s status as a 2(5) labor organization. Accordingly, we find that the Re- spondent is precluded from litigating the matter in this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992). NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Time Warner Cable1 and Communications Workers of America, Local 1120. Case 2–CA–30252 August 5, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on March 28, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 20, 1997, alleging that the Respondent 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 cer- tification in Case 2–RC–21521. (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 com- plaint. On July 3, 1997, the General Counsel filed a Motion for Summary Judgment. On July 7, 1997, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 21, 1997, the Respondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain but attacks the validity of the certifi- cation on the basis of the Board’s disposition of a de- terminative challenged ballot in the representation pro- ceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.2 On the entire record, the Board makes the following Findings of Fact I. JURISDICTION At all material times, the Respondent, a New York corporation, with an office and place of business in Newburgh, New York, has been engaged in the busi- ness of providing cable television services to the pub- lic. Annually, the Respondent, in the course and conduct of its business operations, purchases and receives goods and supplies valued in excess of $50,000 di- rectly from suppliers located outside the State of New York. We find that the Respondent is an employer en- gaged in 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.3 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the rerun election held October 6, 1995, the Union was certified on January 15, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time service techni- cians, installer technicians, warehouse coordina- tors, customer service representatives, production staff, and dispatchers employed by Respondent at its 400 Auto Park Place, Newburgh, New York facility, but EXCLUDING all sales and advertis- ing employees, including advertisement sales co- ordinators, contracting inspectors, administrative assistants, confidential employees, including the customer service representative/administrative service, and guards, professional employees, and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On March 3, 1997, the Union requested the Re- spondent to bargain, and, since about March 6, 1997, 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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 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.’’ the Respondent has failed and 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 failing and refusing on and after March 6, 1997, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appro- priate 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 Sec- tion 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 un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent 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, Time Warner Cable, Newburgh, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Communications Work- ers of America, Local 1120 as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, 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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time service techni- cians, installer technicians, warehouse coordina- tors, customer service representatives, production staff, and dispatchers employed by Respondent at its 400 Auto Park Place, Newburgh, New York facility, but EXCLUDING all sales and advertis- ing employees, including advertisement sales co- ordinators, contracting inspectors, administrative assistants, confidential employees, including the customer service representative/administrative service, and guards, professional employees, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Newburgh, New York, copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, 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 facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since March 28, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 5, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 TIME WARNER CABLE 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Communica- tions Workers of America, Local 1120 as the exclusive representative of the employees 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 bargaining unit: All full-time and regular part-time service techni- cians, installer technicians, warehouse coordina- tors, customer service representatives, production staff, and dispatchers employed by us at our 400 Auto Park Place, Newburgh, New York facility, but EXCLUDING all sales and advertising em- ployees, including advertisement sales coordina- tors, contracting inspectors, administrative assist- ants, confidential employees, including the cus- tomer service representative/administrative serv- ice, and guards, professional employees, and su- pervisors as defined in the Act. TIME WARNER CABLE