Middlesex Cablevision, Inc.

National Labor Relations Board - Board Decisions

May 31, 1977

229 N.L.R.B. 1038 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Middlesex Cablevision, Inc. and Local 827, Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO. Case 22-CA-7381
May 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon charges filed on September 10 and Decem-
ber 23, 1976, by Local 827, International Brother-
hood of Electrical Workers, AFL-CIO, herein called
the Union, and duly served on Middlesex Cablevi-
sion, Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 22, issued an order
consolidating cases, complaint and notice of hearing
on December 30, 1976, against Respondent, alleging
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(l), (3), and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charges, order, complaint,
and notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding. On January 17, 1977, Respondent
executed a settlement agreement which resolved all
portions of the complaint relating to the 8(a)(1) and
(3) violations alleged in Case 22-CA-7174. An order
severing Case 22-CA-7174 from Case 22-CA-7381
issued on January 18, 1977.
With respect to the unresolved unfair labor
practices, the complaint alleges in substance that on
November 15, 1976, following a Board election in
Case 22-RC-6854 the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
6, 1976, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On January 6, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On January 31, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 9,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
i Official notice is taken of the record in the representation proceeding.
Case 22-RC-6854, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See
LTV Electrosstems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4.
229 NLRB No. 157
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
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 and response to the Notice To Show
Cause, Respondent, in substance, attacks the validity
of the certification based on its objections to the
election, contends that the Board did not sufficiently
articulate its rationale for adopting the Regional
Director's report, and requests a hearing. In his
Motion for Summary Judgment and memorandum
in support, counsel for the General Counsel contends
that Respondent raises no issues which were not
considered in the underlying representation proceed-
ing, that there exists no factual issue litigable before
the Board and, therefore, no matter requiring a
hearing. We agree.
Review of the record, including that in the
underlying representation proceeding, Case 22-RC-
6854, discloses that an election was held on Septem-
ber 17, 1976, pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally of ballots
showed three votes for the Union, one against, and
two challenged ballots. Respondent filed timely
objections to the election alleging, in substance, (1)
that a nonemployee union executive board member
was present on Respondent's premises in full view of
the voters during the election and (2) that Respon-
dent's manager, who had resided with employees at
various times, encouraged employees to vote for the
Union and deliberately timed his resignation prior to
the election to further influence employees to vote
for the Union. On October 15, 1976, the Acting
Regional Director issued his Report on Objections
and Challenged Ballots, recommending (I) that
Respondent's objections be overruled in their entire-
ty because (a) the mere presence of a union
representative, absent proof of electioneering or
other improper conduct, does not constitute suffi-
cient grounds to set aside an election and (b) there
was no evidence of any conduct of Respondent's
former manager which would have encouraged
employees to vote for the Union, including his
residence with employees and his resignation 25 days
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA, as amended.
1038
MIDDLESEX CABLEVISION
prior to the election; and (2) that one challenge be
sustained and that the remaining undeterminative
ballot remain unopened and uncounted. According-
ly, he recommended that the Union be certified.
Respondent filed exceptions to the Acting Region-
al Director's report and a brief in support with
exhibits attached, basically reiterating its objections
to the election. Thereafter, on November 15, 1976,
the Board issued its Decision and Certification of
Representative in which, after reviewing the record
in light of the exceptions and briefs, the Board
adopted the findings and recommendations of the
Acting Regional Director's report and certified the
Union.
Respondent now contends, in effect, that the Board
should articulate its rationale in the case. However,
the Acting Regional Director's articulation of his
rationale, which the Board adopted as its own, was
adequate, and the Board has held that no greater
articulation of its rationale is required of it.2 Further,
in adopting the Acting Regional Director's recom-
mendation that Respondent's objections be over-
ruled in their entirety, the Board necessarily found
that there were no substantial or material issues
warranting a hearing.3 Respondent now raises those
same issues raised in the representation case in an
attempt to obtain a hearing herein, but it is well
settled that there is no requirement that an evidenti-
ary hearing be held where there are no substantial or
material issues. 4 It accordingly appears that the
Respondent has raised no issue that it did not, or
could not, have raised in the representation proceed-
ing.
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.5
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.
2 Lake Odessa Machine Products, Inc.. 210 NLRB 90(1974).
a Prestolite Wire Division, Eltra Corporation, 225 NLRB I (1976).
Madisomille Concrete (Co., .4 Division of Corum & EdaMardT, Inc., 220 NLRB
668 ( 1975).
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a New Jersey corporation with a principal
office and place of business at Route 18 Shopping
Center, East Brunswick, New Jersey, herein called
the East Brunswick place of business, where it is
engaged in the business of providing and performing
cablevision services and related services. Respon-
dent's East Brunswick place of business is its only
facility involved in this proceeding. In the course and
conduct of Respondent's business operations during
the preceding 12 months, said operations being
representative of its operations at all times material
herein, Respondent received gross revenue valued in
excess of $100,000. During the same period of time,
Respondent received goods valued in excess of
$50,000 which were transported to its East Brunswick
place of business in interstate commerce directly
from States other than New Jersey.
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
Local 827, International Brotherhood of Electrical
Workers, 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 Respondent constitute
a unit appropriate for collective-bargaining purpose
within the meaning of Section 9(b) of the Act:
All installers, repairmen, and maintenance
employees employed at Respondent's Route 18
Shopping Center, East Brunswick, New Jersey
location, but excluding all office clerical employ-
ees, salesmen, professional employees, guards and
all supervisors as defined in the Act.
4 Janler Plastic Mold Corporation. 191 NLRB 162 (1971).
s See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(fi and 102 69(c).
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On September 17, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 22, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on November 15,
1976, 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 November 29, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit.6 Com-
mencing on or about December 6, 1976, and
continuing at all times thereafter to date, 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 Respondent has, since
December 6, 1976, 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
(I) 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
6 Although the complaint does not specifically allege a request to
bargain, there is attached to the Motion for Summary Judgment a letter
dated November 29, 1976, from the Union to Respondent requesting that
Respondent communicate with the Union to arrange for the commence-
ment of negotiation and this establishes the request. By letter dated
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 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
(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:
CONCLUSIONS OF LAW
1. Middlesex Cablevision, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 827, International Brotherhood of Elec-
trical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All installers, repairmen, and maintenance
employees employed at Respondent's Route 18
Shopping Center, East Brunswick, New Jersey
location, but excluding all office clerical employees,
salesmen, professional employees, guards and all
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 November 15, 1976, 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 December 6, 1976, 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.
December 6. 1976. also attached to the Motion for Summary Judgment,
Respondent acknowledged the Union's letter, and stated that it had no duty
to bargain because the election was invalid. Respondent's answer admits its
refusal to bargain on December 6, 1976.
1040
MIDDLESEX CABLEVISION
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)(l) 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 the Respondent,
Middlesex Cablevision, Inc., East Brunswick, New
Jersey, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 827, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All installers, repairmen, and maintenance
employees employed at Respondent's Route 18
Shopping Center, East Brunswick, New Jersey
location, but excluding all office clerical employ-
ees, salesmen, professional employees, guards and
all 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 the East Brunswick, New Jersey, place
of business copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 22,
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
consecutive days thereafter, in conspicuous 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 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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 Local
827, International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representa-
tive 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 installers, repairmen, and mainte-
nance employees employed at Respondent's
Route 18 Shopping Center, East Brunswick,
New Jersey location, but excluding all office
clerical employees, salesmen, professional
employees, guards and all supervisors as
defined in the Act.
MIDDLESEX CABLEVISION,
INC.
1041