Garrison Telephone Co.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 839 (N.L.R.B. 1974)

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.L R.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..