Micronesian Telecommunications Corp.

National Labor Relations Board - Board Decisions

May 23, 1986

279 N.L.R.B. 1114 (N.L.R.B. 1986)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Micronesian Telecommunications Corporation and
International Brotherhood of Electrical Work-
ers, Local 1357 . Case 37-CA-2370
23 May 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon a charge filed by the Union on 16 October
1985, the General Counsel of the National Labor
Relations Board issued a complaint on 22 October
19851 and an amended complaint on 1 November
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 25 September, fol-
lowing a Board election in Case 37-RC-2712, the
Union was certified as the exclusive collective-bar-
gaining representative of the Respondent's employ-
ees in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations , Secs. 102.68 and 102.69(g), amended 9,
Sept. 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 11 October the Respondent
has refused to bargain with the Union. On 1 No-
vember the Respondent filed its answer admitting
in part and denying in part the allegations in the
complaint, and on 8 November the Respondent an-
swered the amended complaint.
On 13 November the General Counsel filed a
Motion for Summary Judgment. On 19 November
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's answer admits the complaint's
allegation that, during the past 12 months, the Re-
spondent's gross revenues exceeded $1 million and
that it received over $50,000 in revenues directly
from the United States, the Territory of Guam, and
foreign countries. It admits , in addition, that the
Union was certified as the exclusive representative
of the unit. The Respondent's answer denies that
the unit is appropriate, that the Respondent is an
employer engaged in commerce under the Act,
that it has declined to recognize and bargain with
I All dates, unless otherwise noted, are in 1985
the Union since 11 October 1985, and that a major-
ity of the employees selected the Union as their
collective-bargaining representative. The Respond-
ent also contends in its answer that the complaint
fails to state an actionable claim , that the Board
lacks subject matter and personal jurisdiction2 over
the Respondent , and that the Board 's related Deci-
sion and Direction of Election and Decision and
Certification of Representative in Case 37-RC-
2712 are erroneous. In addition , the Respondent
contends in its answer that a statute of limitations
defense is applicable. It also contends in its answer
and response to the Notice to Show Cause that the
Board, before issuing the complaint, did not give it
sufficient time to respond to the charge and that
significant changes concerning the Northern Mari-
ana Islands' political status necessitate a result
which is different from that of the Board's previous
decisions.
The record establishes that an election was con-
ducted on 10 January pursuant to a Decision and
Direction of Election.3 The tally of ballots shows
24 for and 20 against the Union. The Respondent
filed timely objections to the election. After an in-
vestigation concerning these objections, the Re-
gional Director issued his report recommending
that the objections be overruled. The Respondent
filed exceptions to the Regional Director's recom-
mendations. It contended, inter alia, that the Union
misused the Board's electoral processes, that the
Union offered improper inducements to employees
in exchange for their votes, and that the Board
lacked subject matter jurisdiction over it. On 25
September the Board adopted the Regional Direc-
tor's recommendations and certified the Union as
the exclusive representative of the unit.
By letters dated 30 September and 4 October,
the Union requested the Respondent to meet and
negotiate a contract. Thereafter, by letter dated 11
October, the Respondent notified the Union that it
was unwilling to recognize and bargain with the
Union because all underlying Board decisions "are
clearly erroneous, and are not enforceable."4
Regarding the Respondent's assertion that the
complaint fails to state an actionable claim and its
denial that the Union has been selected by a major-
2 Regarding the amended complaint's allegation that the Respondent
was served with a copy of the charge on 16 October, the Respondent
asserts that it lacks sufficient knowledge to form a belief In its letter of
23 October to the General Counsel, however, the Respondent acknowl-
edges that it received the charge The Respondent's receipt of the charge
also is corroborated by the return receipt of the charge's affidavit of serv-
Ice
a Micronesian Telecommunications, 273 NLRB 354 (1984)
4 The Respondent denies that it declined to bargain with the Union
The General Counsel, however, cited the Respondent's I I October letter
to the Union in the complaint and also submitted a copy of the letter
with its motion The Respondent has not controverted this evidence
279 NLRB No. 151
MICRONESIAN TELECOMMUNICATIONS 1115
ity of the employees, that the unit is appropriate,
and that the Respondent is not an employer under
the Act, the General Counsel contends, in its
Motion for Summary Judgment, that the Respond-
ent has raised issues which the Board has previous-
ly resolved in its Decision and Direction of Elec-
tion and Certification of Representative. Regarding
the Respondent's assertion that the Board lacks
subject matter jurisdiction over it and that the
Board's underlying representation decisions are er-
roneous, the General Counsel argues that the Re-
spondent has raised evidentiary and jurisdictional
issues which have been resolved previously in Mi-
cronesian Telecommunications, supra, and the
Board's subsequent Certification of Representative.
The General Counsel also contends, regarding the
Respondent's assertion of a statute of limitations
defense, that the Respondent has not specified any
basis for such a defense.
Regarding the Respondent's assertion that the
Board, before issuing the complaint, did not give it
sufficient time to respond to the charge, the Gener-
al Counsel argues that after the charge was served
on the Respondent, the Respondent notified the
General Counsel that it had declined to bargain
with the Union because the Board lacked jurisdic-
tion and because its underlying representation deci-
sions were erroneous. Finally, regarding the Re-
spondent's assertion that significant changes con-
cerning the Northern Mariana Islands' political
status require a different result here from that of
the Board's previous decisions, the General Coun-
sel argues that the Respondent has not cited any
evidentiary issues or legislative requirements which
would necessitate a reevaluation of the Board's
previous decision to assert jurisdiction over the Re-
spondent.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All jurisdictional and evidentiary issues raised by
the Respondent were or could have been litigated
in the prior representation proceeding. The Re-
spondent does not offer to adduce at a hearing any
newly discovered, previously unavailable, and rele-
vant evidence,-5 nor does it allege any special cir-
5 In its response to the Notice to Show Cause, the Respondent refers
to evidence which was attached to its 23 October letter to the General
Counsel This evidence consists of approximately 76 pages of testimony
and debate from the 2 October Congressional Record It pertains to the
cumstances that would require the Board to reex-
amine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has
not raised any issue that is properly litigable in this
unfair labor practice proceeding. Accordingly we
grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a corporation of the Common-
wealth of the Northern Mariana Islands, provides
interisland telephone and worldwide telecommuni-
cations and telex services at its facility in Gualo
Rai, Saipan. During the past 12 months, a repre-
sentative period, the Respondent, in the course of
its business operations, earned gross revenues of
over $1 million and received over $50,000 in reve-
nues directly from the United States, the Territory
of Guam, and foreign countries. We find that the
Company is an employer engaged in commerce
within the meaning of Section 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on 10 January the
Union was certified on 25 September as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time employees
of the Employer on the islands of Saipan,
Rota, and Tinian, excluding managerial em-
ployees , professional employees , confidential
employees , supervisors, guards and/or watch-
men as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 30 September the Union has requested the
Respondent to bargain, and since 11 October the
Respondent has refused. We find that this refusal
Compact of Free Association Act of 1985, an enactment of Congress
which was passed on 14 January 1986 Because the Compact 's change of
the Trusteeship Agreement for the Trust Territory of the Pacific Islands
applies only to the Marshall Islands and the Federated States of Microne-
sia, it does not affect the Board 's previous assertion of junsdiction in the
Northern Mariana Islands See Joint Resolution Approving the "Compact
of Free Association Act," 14 January 1986, Pub L 99-239, 99 Stat 1770,
Micronesian Telecommunications, supra
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 11 October to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
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
Section 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 understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent 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 Cit. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Micronesian Telecommunications
Corporation, Gualo Rai, Saipan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Broth-
erhood of Electrical Workers, Local 1357, as the
exclusive bargaining representative of the employ-
ees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time employees
of the Employer on the islands of Saipan,
Rota, and Tinian, excluding managerial em-
ployees, professional employees, confidential
employees, supervisors, guards and/or watch-
men as defined in the Act.
(b) Post at its facility in Gualo Rai, Saipan,
copies of the attached notice marked "Appendix."e
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 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 Nation-
al 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Internation-
al Brotherhood of Electrical Workers, Local 1357,
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 exer-
cise 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 employees
of the Employer on the islands of Saipan,
Rota, and Tinian, excluding managerial em-
ployees, professional employees, confidential
employees, supervisors, guards and/or watch-
men as defined in the Act.
MICRONESIAN TELECOMMUNICATIONS
CORPORATION