Answer, Inc., of San Antonio

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 415 (N.L.R.B. 1972)

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.