Golden West Broadcasters-KTLA

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 937 (N.L.R.B. 1975)

GOLDEN WEST BROADCASTERS -KTLA 937
Golden West Broadcasters-KTLA and Directors
Guild of America . Case 31-CA-5234
September 30, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge and amended charges filed on
April 23, May 2, and June 2, 1975, by Directors
Guild of America, herein called the Union, and duly
served on Golden West Broadcasters-KTLA, herein
called the Respondent, the General Counsel of the
National Labor Relations Board , by the Acting Re-
gional Director for Region 31, issued a complaint on
June 3 , 1975, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the
charges, 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 com-
plaint alleges in substance that on January 23, 1975,
following a Board election in Case 31-RC-2724, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate ;' and that, commenc-
ing on or about January 23, 1975, 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 June 12, 1975, Respondent filed its answer to the
complaint admitting in part , and denying in part, the
allegations in the complaint. Respondent admits the
factual allegations 2 of the complaint regarding the
designation of the Union by a majority of the unit
employees , the Union's certification, and its request
and the Respondent's refusal to bargain, but denies
the appropriateness of the unit and the commission
of any unfair labor practices. Affirmatively, Respon-
dent alleges , in substance , that the employees in the
Official notice is taken of the record in the representation proceeding,
Case 31-RG-2724, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board 's Rules and Regulations , Serves 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967 ), enfd. 388 F .2d 683 (C.A. 4,
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);
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968), Sec
9(d) of the NLRA. Respondent concurs in the Board 's taking official notice
of this record.
2 Respondent admits the service of the charge and amended charges, but
denies for lack of information and belief the filing thereof . The dates of
filing set forth above are based on the record of this proceeding.
unit found appropriate by the Board are supervisory
and/or managerial and not employees within the
meaning of the Act, and thus the Board erred in di-
recting an election therein and the certification of the
Union.
On June 30, 1975, counsel for the General Counsel
filed directly with the Board for a Motion for Sum-
mary Judgment. He contends, in effect, that the unit
issues raised by Respondent's answer were raised
and litigated in the underlying representation case,
and under well-settled rules may not be relitigated
herein. Subsequently, on July 8, 1975, the Board is-
sued 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 thereafter filed a response to
Notice To Show Cause in which it incorporates by
reference its brief in the representation case . Respon-
dent basically reasserts its argument advanced in its
affirmative defenses that the Board erred in its repre-
sentation case determinations because the unit con-
tains supervisory and/or managerial employees.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
As noted above, Respondent's answer to the com-
plaint admits the essential factual allegations of the
complaint, including its refusal to bargain upon re-
quest with the certified Union, but denies the appro-
priateness of the unit and affirmatively asserts that
the Board erred in directing an election in the unit
and certifying the results thereof because the unit
contains supervisory and/or managerial individuals
who are not employees within the meaning of the
Act. These affirmative contentions also form the ba-
sis of its Response to the Notice To Show Cause.
It appears from our review of the representation
case record, which we have before us, that
Respondent's contentions concerning the supervisory
and/or managerial status of the unit employees were
raised and litigated at length in that proceeding.
There, after 11 days of hearing, the matter was trans-
ferred to the Board for decision. Following extensive
briefing by the parties on the issues Respondent ad-
vances herein, the Board issued a Decision and Di-
rection of Election 3 on December 16, 1974, finding,
inter alia, that the unit did not contain supervisory
and/or managerial individuals, but rather employees
'215 NLRB No. 141 (1974), Member Kennedy dissenting.
220 NLRB No. 134
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the Act, and directed an elec-
tion therein .4
Accordingly, on the basis of the foregoing, we find
merit in the argument of the General Counsel, as it is
well settled that in the absence of newly discovered
or previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) is not entitled to relitigate is-
sues which were or could have been litigated in a
prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision 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
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All staff directors employed by Golden West
Broadcasters at its television station KTLA in
Hollywood, California; but excluding all other
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On January 15, 1975, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 31, 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 January 23, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
Respondent is a California corporation with an of-
fice and principal place of business located in Los
Angeles, California, where it is engaged in television
broadcasting and related activities. In the course and
conduct of its business operations, Respondent an-
nually purchases and receives goods valued in excess
of $50,000 directly from customers located outside
the State of California. Further, in the course and
conduct of its business operations, Respondent an-
nually derives gross revenues in excess of $100,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Directors Guild of America is a labor organization
within the meaning of Section 2(5) of the Act.
4 The election was conducted on January 15, 1975, and resulted in a
9-to-2 vote in favor of the Union . Absent objections to the election, the
Regional Director certified the Union on January 23, 1975.
See Pittsburgh Plate Glass Co. v. NL. R.B., 313 U.S. 146 , 162 (1941),
B. The Request To Bargain and Respondent's Refusal
Commencing on or about January 23, 1975, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 23, 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 23, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 111, above, occurring in connection with its opera-
GOLDEN WEST BROADCASTERS -KTLA 939
tions described in section 1, above, have a close, inti-
mate , 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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); Bur-
nett 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. Golden West Broadcasters-KTLA is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Directors Guild of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All staff directors employed by Golden West
Broadcasters at its television station KTLA in Holly-
wood, California; but excluding all other employees,
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since January 15, 1975, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 23, 1975, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing 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 Re-
lations Board hereby orders that the Respondent,
Golden West Broadcasters-KTLA, Hollywood, Cali-
fornia , 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 con-
ditions of employment with Directors Guild of
America as the exclusive bargaining representative of
its employees in the following appropriate unit:
All staff directors employed by Golden West
Broadcasters at its television station KTLA in
Hollywood, California ; but excluding all other
employees , professional employees , 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
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 Hollywood, California , television
station copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice , on forms provided
by the Regional Director for Region 31, after being
6 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"
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 conspicuous places , including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced , or covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing , within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Di-
rectors Guild of America as the exclusive repre-
sentative 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 represen-
tative of all employees in the bargaining unit de-
scribed below , with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit is:
All staff directors employed by Golden
West Broadcasters at its television station
KTLA in Hollywood , California ; but exclud-
ing all other employees , professional employ-
ees, guards and supervisors as defined in the
Act.
GOLDEN WEST BROADCASTERS-KTLA