Navigator Communications Systems, 1056 (2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

August 22, 2000

DECISION AND ORDER

BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND BRAME

On November 17, 1999, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondents filed exceptions and supporting briefs.1 The General Counsel and the Charging Party each filed an answering brief. The Respondents filed reply briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Navigator Communications Systems, LLC, Aviator Voice/Data, LLC, and KM Communications, LLC, Stamford, Connecticut, their officers, agents, successors, and assigns, shall jointly and severally take the action set forth in the Order.

Darryl Hale, Esq., for the General Counsel.

Raymond G. McGuire, Esq. and Lyle S. Zuckerman, Esq., for

Respondents Navigator and KM.

David M. Fish, Esq., for Respondent Aviator. Martin J. Crane, Esq., for the Charging Party.

DECISION

STATEMENT OF THE CASE

MICHAEL A. MARCIONESE, Administrative Law Judge. This case was tried in Hartford, Connecticut, on July 20 and August 12-13, 1999. The Union, International Brotherhood of Electri-

cal Workers, AFL-CIO filed the initial charge in Case 34-CA- 8215 on January 30, 1998. This charge was subsequently amended on February 13, 1998, May 22, 1998, and September 2, 1998. The Union filed the initial charge in Case 34-CA-8328 on April 15, 1998, and amended it on October 15, 1998. Based on these charges, as amended, the consolidated complaint issued on October 19, 1998, alleging that Navigator Communications Systems, LLC (Navigator), Aviator Voice/Data, LLC (Aviator), and KM Communications, LLC (KM), the Respondents, as a single employer, violated Section 8(a)(1) and (5) and Section 8(d) of the Act. The complaint allegations relate to Respondent Navigator's cessation of operations and layoff of employees represented by the Union on August 15, 1997.1 Each of the Respondents filed an answer to the complaint denying that they were a single-integrated business enterprise and a single employer within the meaning of the Act and denying the commission of any unfair labor practices.

1 We deny the Charging Party's motion to strike exceptions, the General Counsel's motion to strike exceptions, and the General Counsel's two motions to strike belated exceptions. We grant the Respondents' cross-motions to file exceptions. We find that the delay in the filing of certain exceptions was excusable. We further find that, although the Respondents' initial briefs did not specifically include separate exceptions, the answering briefs filed by the General Counsel and the Charging Party demonstrated that they were fully apprised of the issues raised and therefore were not prejudiced by the technical failure. Magic Chef, Inc., 181 NLRB 1136 fn. 1 (1970); Brazos Electric Power Cooperative, Inc., 241 NLRB 1016 fn. 1 (1979).

2 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

On the entire record,2 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, Respondents Navigator and KM,3 and Respondent Aviator, I make the following

FINDINGS OF FACT

1. JURISDICTION

   Each of the Respondents is a limited liability corporation organized under the laws of the State of Connecticut. At all relevant times, Respondent Navigator had its principal office at 470 West Avenue, Stamford, Connecticut, where it was engaged in the business of selling, installing, and servicing PBX telephone systems to customers in the hotel industry. Respondent Aviator, also with offices at 470 West Avenue in Stamford, Connecticut, was engaged in the business of selling, installing, and servicing telephone systems to commercial customers outside the hotel industry. Respondent KM, located at One Dock Street in Stamford,

   1 All dates hereinafter are in 1997 unless otherwise indicated.

   2 Prior to resting his case on August 12, 1999, the General Counsel sought to call Thomas Kelly Jr., one of the managing members of Respondents Navigator and KM, as a witness. Kelly was not present in the hearing room at the time and had not been present throughout the hearing. The General Counsel's subpoena ad testificandum, requiring Kelly's appearance at the hearing, had been sent by certified mail and overnight delivery on August 10, 1999. At the time the General Counsel called Kelly to the stand, there was no proof that he had yet been served. On inquiry by counsel for Respondents Navigator and KM, it was learned that Kelly was not even in the State of Connecticut when the General Counsel served the subpoena and called him to the stand. I denied the General Counsel's request to adjourn the proceedings until Kelly, or some other representative of Respondent KM who had not yet been subpoenaed, could be produced to testify as a witness for the General Counsel. The hearing had already been adjourned for 3 weeks to permit the General Counsel to review subpoenaed documents. I determined that any further delay could have been avoided by the General Counsel having served a subpoena upon Kelly in sufficient time to ensure his attendance when the hearing resumed. By order dated September 14, 1999, the Board denied the General Counsel's request for special permission to appeal my ruling.

   3 The General Counsel moved to strike two exhibits attached to the brief filed by Respondents Navigator and KM and any references to those exhibits in the brief. The attached documents were not newly discovered nor unavailable at the time of the hearing. The Respondent has advanced no reason for allowing the posthearing receipt of these unauthenticated documents. Accordingly, I shall grant the General Counsel's motion to strike and will disregard exhibits A and B and any references thereto contained in the Respondent's brief. See Southern Florida Hotel & Motel Assn., 245 NLRB 561 fn. 6 (1979).

   The individual Respondents have admitted, by their respective answers which were amended at the hearing, that each is an employer engaged in commerce within the meaning of Section 2(2),

   (6), and (7) of the Act and I so find. The Respondents have further admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act.

2. ALLEGED UNFAIR LABOR PRACTICES

   1. The Evidence

      The record establishes, and it is essentially undisputed, that Respondent Navigator recognized the Union on January 23, 1996, as the exclusive collective-bargaining representative of a unit of its technicians engaged in the installation and service of telecommunications systems within the geographic United States. Robert Howard, the president of Respondent Navigator, signed an agreement that date adopting, with some modifications, a collective-bargaining agreement in effect between the Union and another employer, Mitel Telecommunications Systems, Inc. (Mitel).4 The collective-bargaining agreement, as modified by the January 1996 agreement, was to be effective through October 30, 1997.5

      Pursuant to section 7 of the collective-bargaining agreement, an employee who was laid off after October 7, 1996, would receive a gratuity payment equal to 100 percent of his vacation entitlement. In addition, section 12.A of the agreement provided that employees who were terminated for any reason would receive payment for any unused vacation time which had accrued in the preceding vacation year (defined by the contract as January 1 through December 31). Unit employees were also entitled, under section 10 of the contract, to reimbursement for all reasonable living expenses incurred as a result of work assignments away from the employee's base of operations. Section 26 of the collective-bargaining agreement also required Respondent Navigator to provide unit employees with group life insurance, temporary disability insurance, and comprehensive medical insurance. In the January 1996 recognition agreement, Respondent Navigator agreed to provide a qualified 401(k) savings and retirement plan for unit employees and to "make matching contributions equal to 50 percent of the employee contributions of the first 6 percent of base pay (up to a maximum of $3000) contributed through salary deferral."

      It is undisputed that Respondent Navigator ceased operations and laid off all its unit employees on August 15. Employees were informed that day, by a letter which was signed by Joseph F.

      4 Respondent Navigator had purchased a part of Mitel's business and had hired the employees working in that part of the business.

      5 The Charging Party argued at the hearing that the agreement automatically renewed for another year because of Respondent Navigator's alleged failure to notify the Union of its intention to terminate the agreement within the time specified in the agreement. I find it unnecessary to resolve this issue. There is no dispute that the agreement was in effect at the time of the alleged unfair labor practices. The General Counsel specifically disavowed any claim that any of the other entities had continued the business of Respondent Navigator or that any employees who would be covered by the agreement were still employed after October 30, 1997.

      Grosso, that Respondent Navigator was...