The Mountain States Telephone and Telegraph Co.

National Labor Relations Board - Board Decisions

Apr 27, 1962

136 N.L.R.B. 1612 (N.L.R.B. 1962)

1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although not armed, uniformed, or deputized, and not authorized to
use force, they are instructed to protect the Employer's premises from
trespassers and they do so by checking identifications and reporting
trespassers to supervisory personnel. We find that they are guards
within the meaning of the Act, and we therefore exclude them." We
make no unit determination as to truckdrivers, as none appear to be
currently in the Employer's employ.
We find that all laboratory technicians, laboratory assistants, cooks
and glasswashers, animal caretakers, janitors, and maintenance em-
ployees employed at the Employer's laboratories in Falls Church, on
Leesburg Pike near Andrews Chapel, and at Tyson's Corner, in Vir-
ginia, including regular parttime employees, but excluding office
clerical employees, watchmen, and unit leaders and all other super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
8 St Regis Paper Company , 123 NLRB 550.
The Mountain States Telephone and Telegraph Company and
Local Union No. 532, International Brotherhood of Electrical
Workers. Case No. 19-CA-2334. April 27,190
DECISION AND ORDER
This proceeding is brought under Section 10(b) of the National
Labor Relations Act. Upon a charge filed by Local Union No. 532,
International Brotherhood of Electrical Workers, sometimes herein
called the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Nineteenth Region, issued a
complaint dated November 30, 1961, against The Mountain States
Telephone and Telegraph Company, sometimes herein called Respond-
ent, alleging that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act, as
amended. Copies of the charge, complaint, and notice of hearing were
duly served upon Respondent.
With respect to the unfair labor practices, the complaint alleges, in
substance, that the Regional Director for the Nineteenth Region,
issued a Decision and Direction of Election on September 13, 1961,
and therein found appropriate a unit composed of all janitors, build-
ing mechanics, and garage attendants employed by Respondent in
its Billings, Montana, operations, excluding all other employees and
136 NLRB No. 96.
MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. 1613
supervisors as defined in the Act. It also alleges that on October 20,
1961, in a secret ballot election, a majority of the employees in this
unit voted for the Union as their collective-bargaining agent; and that
on or about October 30, 1961, the Regional Director certified the Union
as the exclusive collective-bargaining representative of the employees
in the above-mentioned unit. The complaint further alleges that on
or about October 30, 1961, and at all times thereafter, Respondent re-
fused to bargain with the Union, on the ground that the unit found
by the Regional Director was inappropriate.
On December 27, 1961, all parties to this proceeding entered into a
stipulation of fact in lieu of hearing and stipulated that the proceeding
be transferred directly to the Board for findings of fact, conclusions
of law, and issuance of a Decision and Order based thereon. In the
stipulation the parties agreed that the stipulation, the charge, affi-
davit and proof of service thereof, complaint and notice of hearing,
affidavit of service thereof, answer of Respondent to complaint and
notice of hearing, the exhibits introduced in Case No. 19-RC-2841,
transcript of testimony adduced therein, Employer's motion to cor-
rect transcript, tally of ballots, certification of representative, request
for review by the Board dated September 22, 19,61, and Board's denial
of request dated October 5, 1961, should constitute the entire record in
this case. The parties further stipulated that they waived a hearing
and the taking of testimony or the submission of further evidence
before a Trial Examiner, the making of findings of fact and conclu-
sions of law by a Trial Examiner, the issuance of an Intermediate
Report and Recommended Order, and that no testimony was necessary
or desired by any of the parties. The parties reserved the right to file
briefs with the Board upon the Board transferring this proceeding
to itself.
On January 11, 1962, the Board approved the stipulation of fact in
lieu of hearing, accepted the transfer of the case, and set February 12,
1962, as the due date for briefs. Briefs were timely filed by the Gen-
eral Counsel and by the Respondent.
Upon the basis of the stipulation and the entire record in the case
including the briefs, the Board' makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a subsidiary of the American Telephone and Tele-
graph Company, operates telephone facilities in the States of Colorado,
Wyoming, Montana , Idaho, Utah , Arizona, New Mexico, and Texas.
Its annual gross revenue is in excess of $1,000.000, of which in excess
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Leedom and Brown].
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of $100,000 is derived from telephone and communications services
which it provides between the States named above, or in interconnec-
tions with other States.
We find, in accordance with the stipulation, that Respondent is
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 in this case.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 532, International Brotherhood of Electrical
Workers is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On September 13, 1961, after a hearing on a petition filed by the
Union and naming the Respondent as the Employer, the Regional
Director for the Nineteenth Region, pursuant to his delegated author-
ity under Section 3 (b) of the Act, issued a Decision and Direction of
Election,' in which he found the following unit to be appropriate for
collective bargaining : "All janitors, building mechanics, and garage
attendants employed by the Employer in its Billings, Montana, opera-
tions, excluding all other employees and supervisors as defined in the
Act." Subsequent to this decision the Respondent filed a timely re-
quest for review of the Regional Director 's unit determination, con-
tending, inter alia, that the Regional Director 's decision was not sup-
ported by Board precedent, that it was clearly erroneous, and that it
prejudicially affected the rights of the Respondent. On October 5,
1961, the Board issued an order denying Respondent 's request for
review.
An election was conducted among the employees in the unit on
October 20, 1961, at which a majority of the employees cast valid
ballots for the Union. October 30, 1961, the Regional Director cer-
tified the Union as the exclusive representative of all employees in
the unit. On the same day, the Respondent sent a letter notifying
the Union that it refused to bargain with respect to the certified unit
because it still deemed such unit to be inappropriate . It stated that
its "sole reason" for taking this action was to obtain a review of the
unit determination in the Federal courts. At all times subsequent to
October 30,1961, Respondent has adhered to this position and refused
to bargain.
The Respondent seeks to relitigate in this proceeding those issues
raised in its request for review which the Board denied in its order of
2 Case No. 19-RC-2841 ( not published in NLRB volumes)
MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. 1615
October 5, 1961, and, in addition, now contends that the Regional
Director's unit determination was "arbitrary and capricious." The
Respondent does not, however, offer in this case any evidence unavail-
able at the time of the representation proceeding or any newly dis-
covered evidence. In the past the Board has refused, in the absence
of such evidence, to reconsider in a subsequent unfair labor practices
proceeding alleging a refusal to bargain matters which have been dis-
posed of in a prior related representation proceeding.' The General
Counsel now contends that this policy should also govern where the
representation proceeding has been processed under Section 3 (b) of the
Act and where, as in the present case, the Board has denied a request
for review of the Regional Director's Decision and Direction of Elec-
tion. We agree.' Consequently, we find no merit in the Respondent's
position insofar as it seeks to raise the matters specifically set forth in
its request for review. Similarly, we find no merit in the "arbitrary
and capricious" argument now before us, as this argument does not, in
fact, present any new matters for our consideration. Thus, in con-
sidering the Respondent's request for review the Board has already
examined the Regional Director's unit determination and his reasons
therefor and, by the denial of such request, has concluded that they
were not clearly improper as a matter of law or policy. Accordingly,
in view of the foregoing and as the Respondent has on, and after,
October 30, 1961, refused to bargain with the Union, the certified
bargaining representative of the above-described appropriate unit, we
find that it has violated Section 8(a) (5) and (1) of the Act'
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 the operations of the Respondent de-
scribed in section I, above, have a close, intimate, and substantial
relation 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 REMEDY
It has been found that the Respondent has engaged in the unfair
labor practices or refusing to bargain collectively with the chosen
3B H. Hadley Inc., 135 NLRB 1231; Producers , Inc., 133 NLRB 701; O.K . Van and
Storage, Inc , 127 NLRB 1537 ; National Carbon Company, 110 NLRB 2184.
' See Section 102 67 of the Board's Rules and Regulations , Series 8 , as amended, which
states in part : "Denial of a request for review shll constitute an affirmance of the re-
gional director 's action which shall also preclude relitigating any such issues in any re-
lated subsequent unfair labor practice proceeding "
6 The Texas Pipe Line Company, 129 NLRB 705.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of its employees in an appropriate unit. It will there-
fore be ordered that it cease and desist therefrom and from like and
related conduct. It will further be ordered that the Respondent,
upon request, bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit.
CONCLUSIONS OF LAW
1. The Mountain States Telephone and Telegraph Company is an
employer within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 532, International Brotherhood of Electrical
Workers, is a labor organization within the meaning of Section 2(5)
of the Act.
3. All janitors, building mechanics, and garage attendants em-
ployed by the Respondent at its Billings, Montana, operations, exclud-
ing all other employees and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. At all times since October 30, 1961, the Union has been and
continues to be exclusive bargaining representative of all the em-
ployees in the aforementioned unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing, on and after October 30,1961, to bargain collectively
with the Union as the exclusive representative of its employees in
the aforesaid unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
6. By refusing to bargain with the Union, the Respondent has
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act, thereby engaging in an
unfair labor practice within the meaning of Section 8(a) (1) of the
Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Laboi
Relations Board hereby orders that the Respondent, The Mountain
States Telephone and Telegraph Company, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Local Union No. 532, International
Brotherhood of Electrical Workers, as the representative of its em-
ployees in the above-described appropriate unit.
MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. 1617
(b) In any other manner interfering with the efforts of said Union
to bargain collectively with the Respondent on behalf of the em-
ployees in the appropriate unit.
2. Take the following affirmative action which is necessary to ef-
fectuate the policies of the Act :
(a) Upon request, bargain collectively with Local Union No. 532,
International Brotherhood of Electrical Workers, as the representa-
tive of its employees in the above-described appropriate unit and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at all of its buildings in Billings, Montana, copies of the
notice attached hereto marked "Appendix." 6 Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained for a
period of 60 consecutive days thereafter in conspicuous places, includ-
ing 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 aforesaid Regional Director, in writing, within 10
days from the date of this Decision and Order, what steps it has taken
to comply herewith.
B In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, We hereby notify our employees that :
WE WILL, upon request, bargain collectively with Local Union
No. 532, International Brotherhood of Electrical Workers, con-
cerning rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is reached,
we will embody said understanding in a signed agreement. The
bargaining unit is :
All janitors, building mechanics, and garage attendants em-
ployed by the Employer in its Billings, Montana, operations,
excluding all other employees and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere with the efforts of
said Union to bargain collectively with us, or refuse to bargain
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with said Union as the representative of our employees in the
appropriate unit.
THE MOUNTAIN STATES TELEPHONE
AND TELEGRAPH COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 500 Union Street, 327 Logan Building, Seattle 4, Washington,
Telephone Number Mutual 2-3300, if they have any question concern-
ing this notice or compliance with its provisions.
Local 215, International Brotherhood of Electrical Workers,
AFL-CIO [Eastern New York State Chapter of the National
Electrical Contractors Association ] and William DePaolo.
Case No. 3-CB-520. April 27, 1962
DECISION AND ORDER
On January 15, 1962, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report, and a brief supporting such exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified below 2
The record facts clearly establish, as found by the Trial Examiner,
that the Respondent precluded DePaolo from obtaining employment
with the electrical firms under contract to it in the Poughkeepsie, New
York, area,' by denying DePaolo access to its referral procedures.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Leedom, Fanning,
and Brown].
2 Respondent's request for oral argument is hereby denied, as in our opinion, the record
in this case, together with the brief and exceptions, adequately present the issues and
positions of the parties.
8 Frank H. McEnaney , Inc., Heady Electric Co ., Inc., Spoor and Haines , Inc., W. J. Snell,
Inc., and John P. O'Shea, d/b/a O'Shea Electrical Contractor.
136 NLRB No. X137.