240 N.L.R.B. 21 (N.L.R.B. 1979)

U.S. Cablevision Corp.

National Labor Relations Board - Board DecisionsJan 23, 1979

240 N.L.R.B. 21 (N.L.R.B. 1979)

U.S. CABLEVISION CORP. 21 U.S. Cablevision Corp. and Local 320, International Brotherhood of Electrical Workers AFL-CIO, CLC. Case 2-CA-15793 January 23, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY. AND TRt;ESDALE Upon a charge filed on August 8. 1978. by Local 320, International Brotherhood of Electrical Workers AFL-CIO, CLC, herein called the Union, and duly served on U.S. Cablevision Corp., herein called Re- spondent, the General Counsel of the National La- bor Relations Board, by the Acting Regional Direc- tor for Region 2, issued a complaint and notice of hearing on August 30, 1978, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on June 30, 1978, fol- lowing a Board election in Case 2-RC-17833, 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 July 28, 1978, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 13, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 2, 1978, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on October 12, 1978, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Official notice is taken of the record in the representation proceeding, Case 2 RC 17833, as the term "record" is defined in secs. 102.68 and 10 2.69 (g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Elecrtro.sstemn, Inc. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968): Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd, 415 F.2d 26 (5th Cir. 1969)1 Intertpe (o. v. Penello. 269 F.Supp. 573 (D.C. Va., 1967): Follerr Corp., 164 NI.RB 378 1967). enfd. 397 F2d 91 (7th ('ir 1968): Sec. 9(d) of the NLRA, as amended. 240 NLRB No. 23 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- 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 the Notice To Show Cause, Respondent admits its refusal to bargain, but denies that it thereby violated Section 8(a)(5) and () of the Act. Specifically, it con- tends. contrary to the allegation of the complaint, that the Union has not been at times material the unit employees' bargaining representative and that its certification to that effect is invalid. Underlying its position is the further contention that its objec- tions to the February 9, 1978, election were, espe- cially without a hearing, improperly overruled and that due to certain alleged "special circumstances," relitigation of matters raised and litigated in the un- derlying representation hearing cannot properly be precluded in this proceeding. The General Counsel contends that Respondent's contentions are without merit in that they seek to raise issues which were presented to and decided by the Regional Director and by the Board in the underlying representation case. A review of the record herein, including the record in Case 2-RC-17833, shows the following: On De- cember 1, 1977, a petition was filed by the Union. On December 28, 1977, the Regional Director approved a Stipulation for Certification Upon Consent Elec- tion, executed by the Union and Respondent on that same date, in which the appropriate unit for collec- tive bargaining was found to consist of all full-time and regular part-time construction and maintenance employees employed by U.S. Cablevision Corp. at its facilities located at 360 Fishkill Avenue, Beacon, New York, and Route 17M, Monroe, New York, in- cluding system technicians, customer technicians, and installers, but excluding all other employees, of- fice clerical and professional employees, guards, and supervisors as defined in the Act. On February 9, 1978, an election by secret ballot was conducted under the supervision of the Regional Director, pursuant to the Stipulation for Certification Upon Consent Election. A majority of the unit em- ployees selected the Union as their representative for the purposes of collective bargaining. Respondent filed timely objections to the conduct of the election which were overruled in their entirety by the Region- al Director in her Report on Objections and Recom- mendations issued on March 24, 1978, in which she U.S. CABLEVISION C RP. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended instead that the Union be certified as the exclusive collective-bargaining representative of the employees in the unit described above. On April 17, 1978, Respondent filed exceptions to the Region- al Director's report and a supporting brief. However. in its decision dated June 30, 1978, the Board found Respondent's exceptions to be without merit and adopted the Regional Director's findings and recom- mendations and certified the Union as the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit. In its decision the Board held specifically that the issues raised by Re- spondent in its exceptions to the Regional Director's report raised nothing requiring either reversal of the Regional Director or the holding of a hearing. Commencing on or about July 7, 1978, and August 16, 1978, the Union by its president, Frank Maher, telephoned Respondent's general manager, Howard Erichsen, and requested that Respondent meet and bargain collectively with it as the exclusive collective- bargaining representative of said employees with re- spect to their rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment. On July 20, 1978, Respondent by letter advised the Union that it was taking its request to meet and bargain under advisement and by letter dated July 28, 1978, refused and, as it concedes, has continued at all times to refuse to recognize the Union and to bargain with it as the bargaining representative of the unit employees. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.3 The issues which Respondent seeks to raise in de- fense of its refusal to recognize and bargain with the Union were, as the General Counsel alleges and as Respondent concedes, raised and litigated in the un- derlying representation proceeding, and Respondent does not offer to adduce at a hearing any newly dis- covered or previously unavailable evidence. It does contend that special circumstances exist which re- quire the Board to reexamine the decision made in the representation proceeding. In this regard it relies solely on the fact that its objections to the election involved in part a form used by Region 2 in an elec- tion proceeding. However, that matter could have 2 The letters were signed by George P. Sisson, president of Colony Com- munications. Inc. In its answer to the complaint Respondent admitted that it is a wholly owned subsidiary of Colony. and there is no contention that Sisson in his letters of July 20 and 28 was not properly acting on behalf of Respondent. See Piusburgh Plate Glass (o v. N.I..RB.. 313 U.S. 146. 162 (1941): Rules and Regulations of the Board. Sec. 102.67(f) and 102.69(c). been and in substance was raised by Respondent and in substance was litigated in the representation pro- ceeding and in any case does not constitute a "spe- cial circumstance" warranting relitigation of, or a hearing on, the decision reached in the representa- tion case. Therefore, we find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS F FACI I. THE BUSINESS OF RESPONDENT Respondent is a Rhode Island corporation en- gaged in the operation of providing community an- tenna television (CATV) services to customers in the Beacon-Monroe area and bas maintained its princi- ple office and place of business in Providence, Rhode Island, and field offices located in Beacon and Mon- roe, New York. During the past year Respondent, in the course and conduct of its operations, derived gross revenue in excess of $100,000 and purchased and received at its various facilities goods and mate- rials valued in excess of $50,000 directly from States of the United States other than the State in which Respondent's facilities are located. 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. tIE LABOR ORGANIZAIION INVOLVED Local 320, International Brotherhood of Electrical Workers AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 11l. ItIE UNFAIR LABOR PRA(TICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time construc- tion and maintenance employees employed by U.S. Cablevision Corp. at its facilities located at 360 Fishkill Avenue, Beacon. New York, and U.S. CABLEVISION CORP. 23 Route 17M, Monroe, New York, including sys- tem technicians, customer technicians, and in- stallers, but excluding all other employees, office clerical and professional employees, guards, and supervisors as defined in the Act. 2. The certification On February 9, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector fore Region 2, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 30, 1978, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent Refusal Commencing on or about July 7, 1978, and at all times thereafter, including August 16, 1978, the Union has requested Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of all the employees in the above-de- scribed unit. Commencing on or about July 28, 1978, and continuing at all times thereafter to date, Re- spondent has refused, and continues to refuse, to rec- ognize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since July 28, 1978, 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 EFFECI OF THlE UNFAIR LABOR PRACTI(CES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, 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 commerce. V THE REMEI)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON(CI. SIONS OF LAW 1. U.S. Cablevision Corp. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 320, International Brotherhood of Elec- trical Workers AFL CIO. CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time construction and maintenance employees employed by U.S. Ca- blevision Corp. at its facilities located at 360 Fishkill Avenue, Beacon, New York, and Route 17M, Mon- roe, New York, including system technicians, cus- tomer technicians, and installers but excluding all other employees, office clerical and professional em- ployees, guards, 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 June 30, 1978, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 28, 1978, 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 Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. U.S. CABLEVISION C RP. _ . . . 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 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 Re- lations Board hereby orders that Respondent, U.S. Cablevision Corp, Beacon and Monroe, New York, 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 con- ditions of employment with Local 320, International Brotherhood of Electrical Workers AFL-CIO, CLC, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time construc- tion and maintenance employees employed by U.S. Cablevision Corp. at its facilities located at 360 Fishkill Avenue, Beacon, New York, and Route 17M, Monroe, New York, including sys- tem technicians, customer technicians, and in- stallers, but excluding all other employees, office clerical and professional employees, guards, 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 both its Beacon and its Monroe, New York, facilities copies of the attached notice marked- "Appendix." 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4In the event that this Order is enforced by ajudgment 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 Judg- ment 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 Local 320, International Brotherhood of Electrical Workers AFL-CIO, CLC, as the exclusive rep- resentative 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time con- struction and maintenance employees em- ployed by U.S. Cablevision Corp. at its facil- ities located at 360 Fishkill Avenue, Beacon, New York, and Route 17 M, Monroe, New York, including system technicians, customer technicians, and installers, but excluding all other employees, office clerical and profes- sional employees, guards, and supervisors as defined in the Act. U.S. CABLEVISION CORP.