General Time Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1985

274 N.L.R.B. 223 (N.L.R.B. 1985)

GENERAL TIME CORP
Seth Thomas Division , General Time Corporation
and Communications Workers of America,
AFL-CIO. Case 1-CA-20072
22 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 21 July 1982,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 5 August 1982
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act.
The complaint alleges that on 6 July 1982, fol-
lowing a Board election in Cases 1-RC-17425 and
1-RM-1125, the Union was certified as the exclu-
sive collective-bargaining representative of the
Company's employees in the unit found appropri-
ate.' (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),
amended Sept. 9, 1981, 46 Fed. Reg. 45922 (1981);
Frontier Hotel, 265 NLRB 343 (1982).) The com-
plaint further alleges that since 19 July 1982 the
Respondent has refused to bargain with the Union.
On 16 August 1982 the Respondent filed its answer
admitting in part and denying in part the allega-
tions in the complaint.
On 17 September 1982 the General Counsel filed
a Motion for Summary Judgment. On 23 Septem-
ber 1982 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
Ruling on Motion for Summary Judgment
Our review of the record herein, including the
record in Cases 1-RC-17425 and 1-RM-1125,
shows the following. On 19 and 20 August 1981
petitions were filed by the Union and the Respond-
ent, respectively. On 4 September 1981 the Region-
al Director for Region 1 approved a Stipulated
Election Agreement in Cases 1-RC-17425 and 1-
RM-1125, providing for an election to be held in
the following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its Boscawen, New Hampshire,
location, but excluding part-time employees
who work less than 20 hours per week, super-
intendents, managerial employees, foremen, en-
1 The Board's Decision and Certification of Representative is reported
at 262 NLRB 715 (1982)
223
gineers, office clericals, confidential employ-
ees, guards and supervisors as defined in the
Act.
On 2 October 1981 an election by secret ballot
was conducted under the direction and supervision
of the Regional Director for Region 1 among the
employees of the Respondent in the unit found ap-
propriate. The tally of ballots shows that of ap-
proximately 85 eligible voters, 45 cast ballots for,
and 36 against, the Union. There were three chal-
lenged ballots, a number insufficient to affect the
results. On 9 October 1981 the Respondent timely
filed objections to the election. On 19 November
1981 the Regional Director issued a Report on Ob-
jections recommending that the Respondent's ob-
jections be overruled in their entirety and that a
certification of representative be issued. On 23 De-
cember 1981 the Respondent filed "Exceptions to
Report on Objections and Request for Hearing"
and a "Brief in Support of Exceptions and Request
for Hearing." To its exceptions the Respondent ap-
pended documentary evidence, including six affida-
vits from employees of the Respondent and a sev-
enth affidavit from the Respondent's plant manag-
er. By letter dated 18 February 1982 the Board ex-
cluded the appended affidavits from the record in
the representation proceedings because they had
not been served on the other party to the proceed-
ing. On 25 February 1982 the Respondent filed a
"Motion for Inclusion of Witness Statements in the
Record" in which it stated that it did not supply
copies of these statements to the Union in order to
keep the contents of the statements confidential.
On 6 July 1982 the Board issued a Decision and
Certification of Representative (262 NLRB 715),
adopting the Regional Director's findings and rec-
ommendations and certifying the Union as the ex-
clusive bargaining representative of the employees
in the appropriate unit. In its decision, the Board
denied the Respondent's motion to include the
statements in the record because they had not been
served on the Union as required by Section
102.69(c) of the Board's Rules and Regulations.
The Board also found there were no substantial or
material issues warranting a hearing.
In its answer to the complaint, the Respondent
admits its refusal to bargain but denies that it there-
by violated Section 8(a)(5) and (1) of the Act. Spe-
cifically, it contends, contrary to the allegations of
the complaint, that the Union is not the bargaining
representative and that its certification to that
effect is invalid. Underlying its position is the fur-
ther contention that its objections to the 2 October
1981 election were improperly overruled, especial-
ly without a hearing. In its "Response to Notice to
274 NLRB No. 39
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Show Cause and Cross-Motion for Summary Judg-
ment and/or Hearing," the Respondent contends
that, because of previously unconsidered evidence,
a dramatic change in circumstances has occurred
which warrants reconsideration of the Board's de-
cision in the underlying representation proceeding.
In this regard, the Respondent states that it submit-
ted affidavits to the Board in the underlying repre-
sentation proceeding that were material to substan-
tiating its prima facie case that the election should
be set aside or a hearing granted on various issues.
The Respondent points out that because it did not
serve the affidavits on the Union in order to pre-
serve the confidentiality of these documents, the
Board refused to consider these affidavits. Howev-
er, since the General Counsel has appended the af-
fidavits to its Motion for Summary Judgment and
thereby provided them to the Union, 2 the Re-
spondent contends that the confidentiality of these
affiants has been destroyed and the Board should
now consider this evidence which, taken as true,
raises material and substantial issues of fact which
warrant setting aside the election or require a hear-
ing. The General Counsel argues that all material
issues have been previously presented to, and de-
cided by, the Board and that there are no litigable
issues of fact requiring a hearing.
On further consideration, we agree with the Re-
spondent that its exceptions to the Regional Direc-
tor's report raised substantial and material issues of
2 The same affidavits which were rejected by the Board in the repre-
sentation proceeding were attached as exhibits to the General Counsel's
motion
fact and law as to Objections l(a)-(c), 2(a)-(h), 3,
and 5 which warrant a hearing. Specifically, we
find that the Respondent established a prima facie
showing that union threats, and other conduct,
both on the part of the Union and third parties,
created a general atmosphere of fear and coer-
cion. 3
Accordingly, we deny the General Counsel's
Motion for Summary Judgment and we shall
remand this proceeding to the Regional Director
for Region 1 for the purpose of arranging and issu-
ing notice of a hearing before an administrative law
judge.4
ORDER
It is ordered that this proceeding be remanded to
the Regional Director for Region 1 for the purpose
of arranging and issuing notice of a hearing before
an administrative law judge.
MEMBER DENNIS, dissenting.
Unlike my colleagues, I would grant the General
Counsel's Motion for Summary Judgment. Even
considering the affidavits the Respondent submitted
to the Regional Director, I cannot agree that Ob-
jections l(a)-(c), 2(a)-(h), 3, and 5 raise substantial
and material issues of fact and law warranting a
hearing.
8 In making this finding we do not rely on the affidavits attached to
the Employer's exceptions in the representation proceeding and rejected
by the Board We find it unnecessary therefore to decide whether an ex-
amination of the affidavits is required in this proceeding because they are
attached to the General Counsel's Motion for Summary Judgment
4 We also deny the Employer 's Cross-Motion for Summary Judgment