GTE Automatic Electric, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1973

207 N.L.R.B. 1026 (N.L.R.B. 1973)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GTE Automatic Electric, Incorporated and Communi-
cations ' Workers of America, AFL-CIO. 'Case
10-CA-10298
December 19, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on July 25, 1973, by Commu-
nications Workers of America, AFL-CIO, herein
called the Union, and duly served on GTE Automat-
ic Electric, Incorporated, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 10, issued a complaint and notice of hearing
on August 29, .1973,1 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; order consolidating cases and
amended notice of hearing; and order, severing cases
and amended notice of hearing before an Adminis-
trative 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 May 16, 1973,
following a Board election in Case 10--RC--7745,
conducted pursuant to the Order of the Board,2 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 3 and that, commenc-
ing on or about May 22, 1973, 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 17, 1973, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
i An order consolidating cases and amended notice of hearing issued on
September 24, 1973, consolidating the instant case with Cases 10-CA-9957
and 10-CA-9958. On October 2,1973, an order severing cases and amended
notice of hearing was issued severing the instant case from cases
10-CA-9957 and 10-CA-9958.
2 GTE Automatic Electric, Inc., 196 NLRB 902.
3 Official notice is taken of the record in the representation proceeding,
Case 10-RC-7745, 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, enfd. 415 F.2d 26 (C.A. 5, 1969);
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.
4 By its answer, the Respondent also denies pars. 10 and 11 of the
complaint which allege that the Union has requested and the Respondent
has refused to bargain . Attached to the General Counsel's Motion for
Summary Judgment are three letters dated May 17, June 7, and July 17,
On October 5, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with attachments, submitting,
in effect, that Respondent, in its answer, is attempt-
ing to relitigate issues which were, or could have
been, raised in the prior representation proceeding,
Case 10-RC-7745, and that the Board grant the
Motion for Summary Judgment. Subsequently, on
October 16, 1973, 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. Respondent failed to file 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
The Respondent's answer to the complaint denies
that a free and uncoerced majority of the employees
designated the Union as their representative for the
purposes of collective bargaining, and denies the
validity of that certification.4 Thus, by these denials
the Respondent is, in effect , attacking the Board's
Decision and Certification of Representative,, issued
on May 16, 1973. The record of the prior representa-
tion proceeding, which is before us, shows that the
Board in its Decision and Certification of Represent-
ative issued on May 16, 1973, had considered the
Respondent's objections to election, the Regional
Director's report, the Respondent's exceptions, and
the entire record, and adopted the Regional Direc-
tor's findings, conclusions , and recommendations.
Accordingly, the Board certified the Union as the
exclusive representative of all the employees in the
unit found appropriate herein-5 Thus, the Respon-
dent, by attacking the legal effect or validity of the
Decision and Certification of Representative issued
1973, respectively, which contain requests made by the Union to the
Respondent for bargaining, and three letters dated May 2Z June 8, and July
30, 1973, respectively , sent by the Respondent to the Union, the first of
which sets forth Respondent's intention to seek review of the Board's
Decision and Certification of Representative issued on May I6, 1973. In its
answer to the complaint , the Respondent does not seek to controvert the
contents of the letters . Accordingly , we sball deem the allegations in pars. 10
and 11 of the complaint to be admitted. Schwartz Brothers, Inc„ and District
Records, Inc., 194 NLRB 150; The May Department Stores Company, 186
NLRB 86 ; Carl Simpson Buick, Inc., 161 NLRB 1389.
5 On July 12, 1973, the Respondent filed an application for reconsidera-
tion of the Board 's Decision and Certification of Representative issued on
May 16, 1973 . By letter dated July 16, 1973, the Respondent was advised
that as the application was not received until nearly 2 months after the
Board's Decision issued, it could not be entertained because of its
untimeliness pursuant to Sec. 102.48(d) of the Board's Rules and
Regulations.
207 NLRB No. 152
GTE AUTOMATIC ELECTRIC
by the Board on May 16, 1973, is attempting to
relitigate the same, issues which it raised and litigated
in the prior 'representation, proceeding, Case
10-RC-7745., , - -
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 re-litigate 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
Respondent is, and has been at all times material
herein, a Delaware corporation, with an office and
place of business located at Huntsville, Alabama,
where it is engaged in the manufacture and sale of
telephone and related equipment. Respondent, dur-
ing the past calendar year, which period is represent-
ative of all times material herein, sold and shipped
finished products valued in excess of $50,000 directly
to customers located outside the State of Alabama.
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 -
1027
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 at
the Employer's Huntsville, Alabama, plant, ex-
cluding general office and office clerical employ-
ees, professional and technical employees, engi-
neers, designers and draftsmen, guards and
supervisors as defined in the Act.
2. The certification
On October 4,19 ' 72, a majority of the employees of
Respondent in the stipulated appropriate unit, in a
secret ballot election conducted pursuant to the
Order of the Board under the supervision' of the
Regional Director for Region 10, 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 May
16, 1973, 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 May, 17, 1973, 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 May 22, 1973, 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 May 22, 1973, 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.
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(f) and 102.69(c).
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the 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 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. GTE Automatic Electric, Incorporated, 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 production and maintenance employees at
the Employer's Huntsville, Alabama, plant, exclud-
ing general office and office clerical employees,
professional and technical employees, engineers,
designers and draftsmen, 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 May 16, 1973, 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 May 22, 1973, 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 Automatic Electric, Incorporated, Huntsville,
Alabama, 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 production and maintenance employees at
the Employer's Huntsville, Alabama, plant, ex-
cluding general office and clerical employees,
professional and technical employees, engineers,
designers and draftsmen, 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
GTE AUTOMATIC ELECTRIC 1029
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 -Huntsville, Alabama, plant copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional
Director for Region 10, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 10, in
writing, within 20 days from the date of this Order,
what steps have, been taken to comply herewith.
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 production and maintenance employ-
ees at the Employer's Huntsville, Alabama,
plant, excluding general office and office
clerical employees, professional and techni-
cal employees, engineers, designers and
draftsmen, guards and supervisors as de-
fined in the Act.
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 Com-
munications Workers of America, AFL-CIO, as
the exclusive representative of the employees in
the bargaining unit described below.
GTE AUTOMATIC -
ELECTRIC, INCORPORATED
(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, Peachtree Building, Room 701, 730
Peachtree Street NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.