Urban Telephone Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1972

199 N.L.R.B. 1035 (N.L.R.B. 1972)

URBAN TELEPHONE CORPORATION
Urban Telephone Corporation and International
Brotherhood of Electrical Workers , AFL-CIO. Case
30-CA-1943
October 26, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on February 16, 1971, by
International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union, and duly served
on Urban Telephone Corporation, herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 30, issued a complaint on June 1, 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 a Trial,Exam-
iner were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 3, 1972,
following a Board election in Case 30-RC-1432, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about May 2, 1972, and at all times thereafter,
Respondenthas refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the Un-
ion has requested and is requesting it to do so. On
June 12, 1972, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On June 23, 1972, counsel for the General Coun-
sel filed directly with the Board a Motion for Summa-
ry Judgment. Subsequently, on July 10, 1972, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed an answer
or response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' Official notice is taken of the record in the representation proceeding,
Case 30-RC-1432, as the term "record" is defined in Secs. 102.68, and
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended See
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.
1035
tional Labor Relations Board has delegated its au-
thority 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 in its response
to Notice To Show Cause, Respondent alleges, in sub-
stance, that the failure of the Board to grant Respon-
dent a hearing with respect to two of its objections to
the conduct of the election and its decision with re-
spect to a third was erroneous, invalid, unsupported
by substantial evidence, and in denial of due process
of law and that, therefore, certification was invalid.
It is the General Counsel's contention that
Respondent's objections were accorded a full and
complete investigation and/or a full and complete
hearing and Board determination. Therefore, as the
pleadings fail to raise any material issues of fact not
admitted or previously determined, he is entitled to
summary judgment as a matter of law. We agree.
The record in Case 30-RC-1432 establishes that,
pursuant to a Stipulation for Certification Upon Con-
sent Election, a secret ballot election among the em-
ployees in the stipulated unit was conducted on April
16, 1971. The tally of ballots shows that, of 33 eligible
voters, 32 ballots were cast, of which 17 were for, and
15 were against, the Union. Thereafter, the Respon-
dent filed timely objections to conduct affecting the
results of the election. The three objections alleged, in
substance, that: (1) the Union intimidated, threat-
ened, and/or coerced an eligible voter, (2) a union
representative electioneered in the vicinity of the polls
shortly before they opened, and (3) during the 24-hour
period before the election, a union representative met
on company time with eligible voters in violation of
Peerless Plywood Company, 107 NLRB 427.
After investigation of the objections, the Region-
al Director, on June 2, 1971, issued and served on the
parties his Report and Recommendations on Objec-
tions and Notice of Hearing, recommending that
Respondent's Objections 2 and 3 be overruled and
directing a hearing on Respondent's Objection 1. By
letter dated June 7, 1971, the Union moved to dismiss
the objections for the alleged failure of the Respon-
dent to serve a copy of the objections on the Union
as required by Section 102.69 of the Board' s Rules
and Regulations.
On June 10, 1971, the Regional Director issued
his Supplemental Report and Recommendations on
Objections in which he ordered that the hearing be
expanded to include evidence on the question of com-
pliance with the service -provisions of the Board's
Rules. Thereafter, Respondent filed timely exceptions
to the Regional Director's report on objections and
199 NLRB No. 119
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supplemental report on service of objections. On Sep-
tember 10, 1971, the Board issued a Decision and
Order adopting the recommendations of the Regional
Director in his reports, including the remand for a
hearing.
After a hearing was held, the Hearing Officer
issued his Report on Objections with Findings and
Recommendations on December 20, 1971. Finding
that the Union was not prejudiced by the
Respondent's failure to serve on it a copy of the objec-
tions, the Hearing Officer considered Objection 1 on
its merits and found it to be without merit. According-
ly, he recommended that it be overruled and that a
certification of representative be issued to the Union.
Thereafter, the Respondent filed with the Board
timely exceptions to the Hearing Officer's report, re-
questing that the election be set aside and a new elec-
tion directed. After considering the Respondent's
objections, the Hearing Officer's report, the excep-
tions , and the entire record, the Board issued its Sup-
plemental - Decision • and Certification of
Representative (196 NLRB No. 6) on April 3, 1972,
adopting the Hearing Officer's findings and rec-
ommendations, overruling Respondent's objections
in their entirety, and certifying the Union as the exclu-
sive bargaining representative for the employees in
the stipulated appropriate unit.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding 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:
2 See Pittsburgh Plate Glass Co. v. N LR.B., 313 U.S. 146, 162 ( 1941), Rules
and Regulations of the Board , Secs. 102 67(f) and 102 .69(c).
3 In its response to the Notice To Show Cause , Respondent reiterates
contentions previously raised and determined herein and further asserts, in
substance , that, subsequent to the Board 's certification , the Union ( 1) intrud-
ed in a state election and (2) made new threats indicating a continuation of
the Union's earlier allegedly improper conduct . We find no merit in
Respondent's argument as the additional assertions relate to conduct subse-
quent to the Board 's certification and are irrelevant and immaterial to this
proceeding which involves only the Respondent 's refusal to honor the
Board's certification of the Union.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, is en-
gaged in the business of providing telephone service
in and around Clintonville, Wisconsin, where it main-
tains its principal offices. During the past calendar
year, a representative period, the Respondent had
gross revenues in excess of $500,000 and during the
same representative period purchased and received
goods valued in excess of $50,000 from suppliers lo-
cated directly outside the State of Wisconsin.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Work-
ers, 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 -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All cable splice , installer-repairmen, line
crew , and central office repairmen employees of
the Respondent headquartered in Clintonville
and its Marion and Shawano, Wisconsin fa-
cilities; excluding office clerical employees, pro-
fessional employees , guards, and supervisors as
defined in the Act, and all other employees.
2. The certification
On April 16, 1971, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 30, 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 3, 1972, and the Union continues
to be such exclusive representative within the
meaning of Section 9(a) of the Act.
URBAN TELEPHONE CORPORATION
B. The Request to Bargain and
Respondent 's Refusal
Commencing on or about April 25, 1972, and at
all times thereafter , the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above -described unit . Commencing
on or about May 2, 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 representative for collective
bargaining of all employees in said unit.
Accordingly , we find that the Respondent has,
since May 2, 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 , Respondent has en-
gaged 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade , traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
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 appro-
priate unit, and, if an understanding is reached, em-
body such understanding in a signed agreement:
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 299, enfd. 328 F.2d 600 (C.A. 5), cert.
denied 379 U.S. 817; Burnett Construction Company,
1037
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. Urban Telephone Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All cable splice, installer-repairmen, line crew,
and central office repairmen employees of the respon-
dent headquartered in Clintonville and its Marion
and Shawano, Wisconsin facilities; excluding office
clerical employees, professional employees, guards,
and supervisors as defined in the Act, and all other
employees constitute a unit appropri;te for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since April 3, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about May 2, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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
meaning 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 Rela-
tions Board hereby orders that Respondent, Urban
Telephone Corporation, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay, wages, hours, and other terms and condi-
tions of employment, with International Brotherhood
of Electrical Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All cable splice, installer-repairmen, line
crew, and central office repairmen employees of
the Respondent headquartered in Clintonville
and its Marion and Shawano, Wisconsin fa-
cilities; excluding office clerical employees, pro-
fessional employees, guards, and supervisors as
defined in the Act, and all other employees.
(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 Clintonville, Marion, and Shawano,
Wisconsin, facilities copies of the attached notice
marked "Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 30,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consec-
utive 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 30,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER , dissenting:
For the reasons stated in my dissent in Case 30-
RC-1432, reported at 196 NLRB No. 6, I would not
have certified the Union on the present state of the
record, and, accordingly, I do not agree that an 8(a)(5)
Order is supported in this case.
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 Inter-
national Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All cable splice, installer-repairmen, line
crew, and central office repairmen employees
of the Respondent headquartered in Clinton-
ville and its Marion and Shawano, Wisconsin
facilities; excluding office clerical employees,
professional employees, guards, and supervi-
sors as defined in the Act, and all other em-
ployees.
Dated By
URBAN TELEPHONE CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive 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, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.