General Communications Service, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1973

201 N.L.R.B. 1002 (N.L.R.B. 1973)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Communications Service, Inc. and Communi-
cations Workers of America, AFL-CIO. Case
28-CA-2696
February 23, 1973
DECISION AND ORDER
Upon a charge filed on August 15, 1972, by
Communications Workers of America, AFL-CIO,
herein called the Union, and duly served on General
Communications Service, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 28, issued a complaint on
September 11, 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 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 July 27, 1972,
following a Board election in Case 28-RC-2272 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 3, 1972, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, 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 25, 1972, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint submitting
affirmative defenses and requesting that the com-
plaint be dismissed with prejudice or, in the alterna-
tive, that the certification previously issued in Case
28-RC-2272 be set aside and a new election be
ordered.
On November 2, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 9,
1972, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
i Official notice is taken of the record in the representation proceeding,
Case 28-RC-2272, 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 Electrosvstems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
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, in opposing
the grant of the General Counsel's Motion for
Summary Judgment, attacks the appropriateness of
the unit, the designation and selection of the Union
as exclusive bargaining representative, and the
validity of the Union's certification and argues that it
has thereby raised material and substantial issues of
fact requiring a hearing. On the other hand, the
General Counsel contends that no issues of fact have
been raised by the Respondent and that it is
attempting to relitigate issues raised and determined
in the underlying representation proceeding. We
agree with the General Counsel.
Our review of the record in Case 28-RC-2272
reflects that, after a hearing, the Regional Director,
on March 1, 1972, issued his Decision and Direction
of Election in which he directed an election in a
single unit of all communications service operators
excluding all other employees, office clericals and
supervisors as defined in the Act employed by the
Respondent at its Tucson, Arizona, locations. The
Regional Director had found no merit in the
Respondent's contentions (1) that the representation
petition was invalid and should be dismissed because
it contained a false statement as to the Union's
request for recognition in violation of the Board's
Rules and Regulations and the Act; and (2) that two
separate units were appropriate rather than the single
unit sought by the Union. The Respondent's timely
Request for Review which raised these issues was
denied by the Board on March 20, 1972, as raising no
substantial issues warranting review.
The tally of ballots cast in the election conducted
on March 30, 1972, reflected that of the approxi-
mately 30 eligible voters, 27 cast ballots, of which 11
were cast for, and 12 against, the Union, with 4
ballots challenged. The Respondent filed timely
objections and supplemental objections to the con-
duct of the election and to conduct affecting the
results of the election. The Union also filed objec-
tions. In addition to reiterating the issue as to the
purported invalidity of the representation petition,
the Respondent alleged in substance that (1) because
of the Board's failure properly to advise the employ-
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Peneio, 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
201 NLRB No. 135
GENERAL COMMUNICATIONS SERVICE 1003
ees of the times and places of the election, two
employees at the main office were permitted to vote
at the east office, while other employees were denied
this opportunity; (2) an employee was denied an
absentee ballot and another prematurely challenged;
(3) the Board agent failed to conduct a preelection
conference, depriving the parties of the opportunity
to examine the eligibility list and the ballots used in
the election; (4) unauthorized personnel were not
excluded from the voting premises during the
election; (5) a supervisor actively assisted the Union;
(6) the Union violated the Board's 24-hour election-
eering ban; (7) the Union sent the employees a
letter containing false and misleading statements
allegedly destroying the laboratory conditions for the
election; and (8) the Union deliberately defaced the
Board's notice of election.
After investigation of the objections as well as the 4
challenged ballots which were determinative of the
election, the Regional Director, on May 19, 1972,
issued his supplemental decision on challenged
ballots, objections to conduct affecting the results of
the election, objections to conduct of the election
and order, in which he overruled the Respondent's
objections in their entirety, considered the Union's
objections as a statement of its position on chal-
lenges, sustained the challenges to two ballots,
overruled the two remaining challenges, and directed
that the latter two challenged ballots be opened and
counted.
On June 19, 1972, the Board denied the Respon-
dent's Request for Review of the Regional Director's
supplemental decision and order on the grounds that
the request raised no issue warranting review.
Thereafter, on June 30, 1972, the two challenged
ballots were opened and counted. The revised tally of
ballots served on the parties showed that of the 25
ballots cast and counted, 13 were for and 12 against
the Union.
On July 7, 1972, the Respondent filed with the
2 See Pittsburgh Plate Glass Co v N.L.R.B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c).
In its answer to the complaint and response to the Notice to Show Cause,
the Respondent argues that the certification is null and void because it
failed properly to designate the unit as described in the Regional Director's
Decision and Direction of Election . We find no merit in this argument The
Respondent failed to file a request for review of the Acting Regional
Director's Second Supplemental Decision and therefore is precluded from
raising herein the issue of the proper unit description . (See M.P.C. Cash-
Way Lumber Company, 189 NLRB No. 102, and Sec. 102.67(f) of the
Board 's Rules and Regulations .) Further, the reference in the certification
to "the unit described" is sufficient since the certification must be read in
the light of the entire representation case . This is especially true where, as
here , the certification is an integral part of the Acting Regional Director's
Second Supplemental Decision which , in In. 2, describes the unit. haec
verbs, as in the Regional Director's Decision and Direction of Election
3 Because of the alleged lack of knowledge or information, the
Respondent denies the allegations pertaining to the Union 's status as a
labor organization . Since the Union 's status as a labor organization has
been determined in the underlying representation case , it is not subject to
Regional Director objections to events leading up to
and surrounding the revised count. These objections,
which the Respondent made more specific on July
17, 1972, alleged that the one-vote differential
expressed in the revised tally cast the Respondent's
original objections (which it reiterated again) in an
entirely different light and that, therefore, it was
entitled to a hearing thereon.
After investigation, the Acting Regional Director
issued, on July 27, 1972, his second supplemental
decision on objections to conduct leading up to and
surrounding the revised tally of ballots and certifica-
tion of representative in which he considered that the
objections constituted a request of reconsideration of
the Respondent's original objections as they did not
deal with circumstances leading up to and surround-
ing the revised tally. Since the objections did not
present evidence of any objectionable conduct
warranting a new election, he overruled them in their
entirety and certified the Union. The Respondent
never filed with the Board a Request for Review of
the second supplemental decision and certification.
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.3 We shall, accordingly,
grant the Motion for Summary Judgment.
relitigation in this unfair labor practice proceeding.
Attached to the General Counsel's Motion for Summary Judgment are
two letters which the Respondent does not controvert and therefore they are
deemed admitted to be true and are so found . In the August I , 1972, letter
to the Respondent , the Union stated that , pursuant to its certification as
representative of "the employees of your company in Tucson ." it was
requesting information and a meeting to discuss conditions of employment.
In the August 3, 1972, letter to the Union, the Respondent denied the
Union's requests because the certification was allegedly null and void and
because the Respondent doubted that the Union represented a majority of
the Respondent's employees who were ambiguously described in the August
I letter. The General Counsel contends that the letters support the
allegations of the complaint , denied by the Respondent, that the Union
requested , and the Respondent refused , to bargain. We agree with the
General Counsel and strike the Respondent's denials . A fair reading of the
August 1, 1972, letter clearly indicates that the Union was requesting
bargaining for the employees in the certified unit when it referred to "the
employees of your company in Tucson ." That letter , therefore, constituted a
proper and unambiguous request to bargain and the alleged ambiguity of
the request affords no defense for the Respondent . Nor does the alleged
(Continued)
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Arizona corporation with its
principal office and place of business at Tucson,
Arizona, is, and has been at all times material herein,
continuously engaged in the business of providing
telephone service, radio paging and radio telephone
services and wrecker dispatching services.
During the past year, Respondent, in the course
and conduct of its operations, performed services
valued in excess of $50,000 of which services valued
in excess of $50,000 were performed in states other
than the State of Arizona. During the aforesaid
period, Respondent, in the course and conduct of its
operations, received gross revenues in excess of
$500,000.
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 communications services operators, exclud-
ing all other employees, office clericals and
supervisors as defined by the Act employed by
the Respondent at 425 East Seventh and 4400
East Broadway, Tucson, Arizona.
2. The certification
On March 30, 1972, a majority of the employees of
invalidity of the certification support the Respondent 's refusal to bargain
since the Respondent had previously litigated the certification issues in the
representation proceeding and they may not be relitigated herein.
The Respondent also contends that, in any event , the Respondent's
request to bargain was premature because it was made poor to the
expiration of 10 days from the date of the Second Supplemental Decision
and Certification and therefore violated Sec 102.69(c) and 102 .67 of the
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 28 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 27, 1972, 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 August 1, 1972, 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 August 3 , 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since August 3, 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, 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
Board 's Rules and Regulations which provide for requests for review to be
filed within 10 days . We find no ment in this contention We note that Sec
102 67 provides that a request for review does not operate as a stay of any
action taken or directed by the Regional Director . Further, we agree with
the General Counsel that , as clearly indicated in its letter of August 3, 1972,
the Respondent has been , and is, refusing to bargain with the Union
GENERAL COMMUNICATIONS SERVICE 1005
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. General Communications Service, Inc., 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 mean-
ing of Section 2(5) of the Act.
3. All communications services operators, exclud-
ing all other employees, office clericals and supervi-
sors as defined by the Act employed by the
Respondent at 425 East Seventh and 4400 East
Broadway, Tucson, Arizona, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 27, 1972, 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 August 3, 1972, 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
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,
General Communications Service , Inc., 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 communications services operators , exclud-
ing all other employees , office clericals and
supervisors as defined by the Act employed by
the Respondent at 425 East Seventh and 4400
East Broadway , Tucson , Arizona.
(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 offices and places of business at
Tucson , Arizona , copies of the attached notice
marked "Appendix ." 4 Copies of said notice, on
forms provided by the Regional Director for Region
28 after being duly signed by Respondent 's repre-
sentative , shall be posted by Respondent immediate-
ly upon receipt thereof , and be maintained by it for
60 consecutive days thereafter , in conspicuous
places, including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered , defaced , or covered by any other
material.
(c) Notify the Regional Director for Region 28 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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."
1006 DECISIONS OF 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 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 communications services operators,
excluding all other employees , office cleri-
cals and supervisors as defined by the Act
employed by the Respondent at 425 East
Seventh and 4400 East Broadway , Tucson,
Arizona.
GENERAL
COMMUNICATIONS
SERVICE, INC.
(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, 7011 Federal Building, U.S. Court-
house , P. O. Box 2146, 500 Gold Avenue SW.,
Albuquerque, New Mexico 87101, Telephone
505-843-2508.