KHSC-TV

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 641 (N.L.R.B. 1993)

641
310 NLRB No. 108
KHSC-TV
1 In its opposition to the Motion for Summary Judgment the Re-
spondent claims to have new evidence regarding the eligibility of
one of the voters in the underlying representation case. The Re-
spondent claims that this new evidence reveals that Bonder, one of
the two challenged voters in the underlying election proceeding, was
not employed on the date of the election. Therefore, the vote of
seven to six for the Union would be altered and a new election
should be conducted. Upon examination of the Respondent’s ‘‘new’’
evidence, a dismissal letter in Case 31–CA–19417 dated July 30,
1992, we find that it was previously available and not newly discov-
ered. The Respondent’s assertion that it had already filed its excep-
tions to the report on challenges and objections at the time the dis-
missal letter issued begs the question. The Respondent was free to
submit this evidence to the Board in supplementation of its July 13,
1992 exceptions and its July 27, 1992 reply brief. The Board’s deci-
sion did not issue until September 25, 1992. Moreover, the existence
of the dismissal letter does not constitute a special circumstance war-
ranting reexamination of the underlying case. We note, in fact, that
the dismissal letter states that Bonder was a part-time employee at
the time of the representation election. Accordingly, even were it ap-
propriately before the Board, it would not support the Respondent’s
claim.
HSN Broadcasting of Southern California, Inc. and
HSN Telemations, Inc., Joint Employers d/b/a
KHSC-TV and National Association of Broad-
cast Employees and Technicians, Local No. 53,
AFL–CIO and National Association of Broad-
cast Employees and Technicians, AFL–CIO,
Party in Interest. Case 31–CA–19641
March 12, 1993
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
DECISION AND ORDER
On December 31, 1992, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 31–RC–
6907. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On February 8, 1993, the General Counsel filed a
Motion for Summary Judgment. On February 10, 1993,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain and to furnish information that is relevant and
necessary to the Union’s role as bargaining representa-
tive, but attacks the validity of the certification on the
basis of its objections to the election and the Board’s
disposition of certain challenged ballots in the rep-
resentation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). There are no factual issues regarding the
Union’s request for information because the Respond-
ent admitted that it refused to furnish the information.
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
HSN Broadcasting of Southern California, Inc., and
HSN Telemations, Inc. are now, and have been at all
times material, corporations duly organized under and
existing by virtue of the laws of the State of Delaware,
with offices and principal places of business located in
Ontario, California, where they are engaged in the op-
eration of a television broadcasting station. Collec-
tively, in the course and conduct of their business op-
erations, the Respondents annually purchase and re-
ceive goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of Cali-
fornia and derived gross revenues in excess of
$100,000.
At all material times HSN Broadcasting and HSN
Telemations have processed and exercised control over
the labor relations policy of KHSC-TV and adminis-
tered a common labor policy for the employees of
KHSC-TV.
At all material times HSN Broadcasting and HSN
Telemations have been joint employers of the employ-
ees of KHSC-TV.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If 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.’’
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 1, 1992, the Union
was certified on October 15, 1992, as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
INCLUDED: All Technical Operators/Switch-
ers/Production Assistants, Editors, Producers
and Maintenance Engineers employed by the
Employer at their Ontario, California facility.
EXCLUDED: All other employees, Office Cler-
ical Employees, Chief Engineer, Assistant Chief
Engineer, Guards and Supervisors as defined in
the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since October 22, 1992, the Union has requested the
Respondent to bargain and to furnish information, and
since October 22, 1992, the Respondent has refused.
We find that this refusal constitutes an unlawful refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after October 22, 1992, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union requested information,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, HSN Broadcasting of Southern California,
Inc. and HSN Telemations, Inc., Joint Employers d/b/a
KHSC-TV, Ontario, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with National Association of
Broadcast Employees and Technicians, Local No. 53,
AFL–CIO as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to
furnish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
INCLUDED: All Technical Operators/Switch-
ers/Production Assistants, Editors, Producers
and Maintenance Engineers employed by the
Employer at their Ontario, California facility.
EXCLUDED: All other employees, Office Cler-
ical Employees, Chief Engineer, Assistant Chief
Engineer, Guards and Supervisors as defined in
the Act.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep-
resentative of the unit employees.
(c) Post at its facility in Ontario, California, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
643KHSC-TV
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with National Asso-
ciation of Broadcast Employees and Technicians, Local
No. 53, AFL–CIO as the exclusive representative of
the employees in the bargaining unit, and WE WILL
NOT refuse to furnish the Union information that is rel-
evant and necessary to its role as the exclusive bar-
gaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
INCLUDED: All Technical Operators/Switch-
ers/Production Assistants, Editors, Producers
and Maintenance Engineers employed by us at
our Ontario, California facility.
EXCLUDED: All other employees, Office Cler-
ical Employees, Chief Engineer, Assistant Chief
Engineer, Guards and Supervisors as defined in
the Act.
WE WILL, on request, furnish the Union information
that is relevant and necessary to its role as the exclu-
sive representative of the unit employees.
HSN BROADCASTING OF SOUTHERN
CALIFORNIA, INC. AND HSN TELE-
MATIONS, INC., JOINT EMPLOYERS D/B/A
KHSC-TV