GTE Lenkurt, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 929 (N.L.R.B. 1975)

GTE LENKURT, INC. 929
GTE Lenkurt, Incorporated and International Broth-
erhood of Electrical Workers, AFL-CIO-CLC.
Case 28-CA-3422
June 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on January 30, 1975, by
International Brotherhood of Electrical Workers,
AFL,-CIO-CLC, herein called the Union, and duly
served on GTE Lenkurt, Incorporated, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 28, issued a complaint on February 19, 1975,
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),6f 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 December 5,
1974, following a Board election in Case 28-RC-
2492 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about December 10; 1974, and
particularly on or about January 14, 22, and 29, 1975,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the 'Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 3, 1975,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint and asserting affirmative defenses.
Oft April 2, ' 1975, counsel for the General Counsel
filed directly, with the Board a Motion for Summary
Judgment. On April 18, 1975, counsel for the
General Counsel filed a Motion to Amend its Motion
for Summary Judgment for the purpose of including
additional exhibits and alleging pleadings filed in the
representation case . Subsequently, on April 21, 1975,
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
i Official notice is taken of the record in the representation proceeding,
Case 28-RC-2492, ' as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Bbazd's' Rules and Regulations , Series 8, as amended. See
LTV Electrosystem r', Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
218 NLRB No. 139
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
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 reply tp the
Notice To Show Cause, Respondent, in effect, alleges
its doubt that the Union represents an uncoerced
majority of the employees in the appropriate unit and
contests the validity of the Union's certification on
the basis that some of its objections to the election
were overruled without a hearing in violation ofdue
process and that its objections show that the results
of the election are invalid, illegal, and unenforceable.
Counsel for - the ' General Counsel asserts in its
Motion for Summary Judgment that Respondent is
attempting to relitigate the issues in the representa-
tion case and raises no new issues, nor new or
previously unavailable evidence, which would justify
relitigation.
Our review of the record reveals that an election
was held on June 29, 1973, pursuant to.a Stipulation
for Certification Upon Consent Election. A majority
of the votes cast were for the Union. Thereafter,
Respondent filed timely objections to the election.
After investigation, the Regional Director for Region
28 on September 19, 1973, issued a Report and
Recommendations on Objections and Order Direct-
ing Hearing and Notice of Hearing: Because investi-
gation, of Respondent's timely objections disclosed
evidence pertaining to its untimely Supplement toI -
Objections, , the Regional Director also considered
the untimely allegations as "unalleged conduct." The
Regional Director recommended that certain of the
objections be overruled and ordered a hearing on the
remaining objections concerning the alleged misre-
presentations in a union handbill relating to job
comparisons; threats and coercion, and threatening
and other prohibited electioneering; promises of
benefits and/or threats of detriment made by the
Union; and the so-called unalleged conduct concern-
ing supervisory involvement. Respondent filed ex-
ceptions and brief to the Regional Director's report
and recommendations urging that the election be set
aside or, in the alternative; that a hearing be-held on
all the objections.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(CA. 5, 1969); Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 7, 1974, the Board issued a Decision and
Order (209 NLRB 473) in which it adopted the
Regional Director's findings and recommendations
and also ordered that the hearing should include the
issues raised concerning the Union's alleged waiver
of initiation fees, upon which the Hearing Officer
was to issue a report on the facts without any
recommendations or conclusions of law.2
After the hearing, the Hearing Officer issued his
Report on Objections to Election with Findings and
Conclusions in which he recommended that all the
objections' before him be overruled except the
objection with respect to the issue on the waiver of
initiation fees as to which he had been directed to
make only a factual report. Respondent then filed
exceptions and a brief in support disputing the
findings and recommendations' of the Hearing
Officer and again raising its objections which had
been overruled without a hearing. On December 5,
1974, the Board issued a Supplemental Decision and
Certification of Representative (215 NLRB No. 53)
in which, after considering the Hearing Officer's
report, exceptions thereto, and the entire record in
the case, it adopted the findings, conclusions, and
recommendations of the Hearing Officer and found
no merit to the waiver of initiation fees objections.
The Board then certified the Union.3 Thereafter,
Respondent filed a' Motion for Reconsideration
asking that the certification be set aside and a second
election be conducted because of errors in the
findings and conclusions concerning the objections
which were heard, or alternatively a hearing be held
on the objections which were overruled without a
hearing allegedly in violation of due process. On
January 7, 1975, the Board denied Respondent's
Motion for Reconsideration because it contained
nothing not previously considered by the Board; and
upon de novo review herein, the Board panel has
reaffirmed this denial.
It thus appears from the foregoing review that
Respondent's contentions raised in this proceeding,
including those pertaining to the denial of due
process because of the absence of a hearing, have
been fully considered and decided in the underlying
representation case . Further, it is well established
2 In fn. I of the Decision and Order former Chairman Miller would have
broadened the scope of the hearing for a fuller development of the facts on
several of the objections raised by Respondent, while Member Penello
would have narrowed the scope of the hearing with respect to alleged wage
misrepresentations.
3 Although he adopted the Hearing officer's report and recommenda-
tions, former Chairman Miller would not have certified the Union without a
hearing to resolve the issues he noted in fn. I of the Decision and Order.
(See fn. 2, supra.)
4 Heavenly Valley Ski Area, a California Corporation, and Heavenly
Valley, a Partnership, 215 NLRB No. 129 (1974), and cases cited in fn. 6
therein.
5 Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc.] v. N.LRB., 424 F.2d 818, 828 (C.A.D.C.,1970).
that parties do not have an absolute right to a
hearing on objections to an election. It is only when
the moving party presents a prima facie showing of
"substantial and material issues" which would
warrant setting aside the election that he is entitled to
an evidentiary hearing.4 It is clear that, absent
arbitrary action, this qualified right to a hearing
satisfies all statutory and constitutional require-
ments.5
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.6
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.? We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
GTE Lenkurt, Incorporated, a Delaware corpora-
tion, at all times material herein has maintained its
principal office and place of business in the city of
San Carlos, California, and an office and manufac-
turing plant at I ' Camino de Lenkurt, Albuquerque,
New Mexico. At the Albuquerque plant, the only
facility involved in this proceeding, Respondent has
been at all times material herein engaged in the
design, development, engineering, manufacturing,
and distributing of telecommunications equipment.
During the past calendar year in the course and
conduct of its business operations at its Albuquerque
6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c).
4 The Respondent's answer denies the refusal to bargain . Attached to the
General Counsel's Motion for Summary Judgment as Exhs. 6 and 7 are a
telegram dated January 29, 1975, from the vice president and general
manager of Respondent to the Union notifying it that the Respondent
refused the requests for recognition, negotiations , and bargaining, and a
letter of identical import of the same date from the same person to the
employees. In its Reply to the Notice to Show Cause , Respondent neither
alludes to nor controverts these communications . Thus the allegation in the
complaint concerning Respondent's refusal to bargain on January 29, 1975,
and times thereafter stands admitted by the uncontroverted factual
averments in the General Counsel's motion and is found to be true.
GTE LENKURT, INC. 931
plant, Respondent manufactured , sold, and shipped
goods and materials valued in excess of $50,000
directly to customers in States other than New
Mexico and purchased , transferred , and caused to be
delivered goods and materials valued in excess of
$50,000 which were transported directly to its
Albuquerque plant from points outside New Mexico.
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.
U. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO-CLC, 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 production and maintenance employees
consisting of grade one through seven employees
employed at the Albuquerque plant of the
Respondent , excluding office clerical employees,
plant clerical employees , professional employees,
technologists , expediters , timekeepers , guards,
watchmen, first line supervisors and all other
supervisors as defined in the Act.
2. The certification
On June 29, 1973, a majority of the employees of
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 Recember 5, 1974, 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 December 10, 1974, and
more particularly on or about January 10, 14, and 22,
1975, and at all times thereafter, the Union has
requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above -described
unit . Commencing on or about January 29, 1975, 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 January 29 , 1975 , 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
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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 (C.A. 5, 1964), cert . denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 ( 1964), enfd. 350 F .2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF' LAW
1. GTE Lenkurt, Incorporated, 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-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
consisting of grade one through seven employees
employed at the Albuquerque plant of the Respon-
dent, excluding office clerical employees, plant
clerical employees, professional employees, technolo-
gists, expediters, timekeepers, guards, watchmen, first
line supervisors and all other 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 December 5, 1974, 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 January 29, 1975, 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,
GTE Lenkurt, Incorporated, Albuquerque, New
Mexico , 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 International Broth-
erhood of Electrical Workers, AFL-CIO-CLC, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees
consisting of grade one through seven employees
employed at the Albuquerque plant of the
Respondent, excluding office clerical employees,
plant clerical employees, professional employees,
technologists, expediters, timekeepers, guards,
watchmen, first line supervisors and all other
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 fmds 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 Albuquerque, New Mexico, office
and manufacturing plant copies of the attached
notice marked "Appendix." 8 Copies of said notice,
on forms provided by the, Regional Director for
Region 28, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees 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.
8 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-CLC, as the exclusive representative
of the employees in the bargaining unit described
below.
GTE LENKURT, INC.
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:
933
All production and maintenance employ-
ees consisting of grade one through seven
employees employed at the Albuquerque
plant of the Respondent , excluding office
clerical employees , plant clerical employees,
professional employees , technologists, ex-
pediters , timekeepers, guards , watchmen,
first line supervisors and all other supervi-
sors as defined in the Act.
GTE LENKURT,
INCORPORATED