KXEN, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1972

198 N.L.R.B. 628 (N.L.R.B. 1972)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KXEN, Inc. and International Brotherhood of Electri-
cal Workers , Local 4, AFL-CIO. , Case 14-
CA-6745
August 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on March 15, 1972, by
International Brotherhood of Electrical Workers,
Local 4, AFL-CIO, herein called the Union, and
duly served on KXEN, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 14, issued a complaint on March 30, 1972,
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
before a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 25,
1972, following a Board election in Case
14-RC-6856 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about February 9, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On April 25, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On May 15, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 17, 1972, 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 thereafter filed a response to
Notice To Show Cause and a motion for reconsidera-
tion in the "R" case.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
' Official notice is taken of the record in the representation proceeding,
Case 14-RC-6856, 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, Intertype Co v Penello, 269 F
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
In its response to the Notice To Show Cause, as in
its answer to the complaint, Respondent contends
that the certification of the Union, issued after an
election conducted pursuant to a Stipulation for
Certification Upon Consent Election, is invalid in
that its objections to conduct affecting the results of
the election should have been sustained and that it
was denied due process by not having been accorded
a hearing on its objections. The Respondent had
alleged in its objections acts of threats, coercion, and
interference, and misrepresentations which Respon-
dent asserted warranted the direction of a new
election. In his report on the objections, the Acting
Regional Director recommended that they be over-
ruled and that a certification issue . Respondent
renewed its contentions in its exceptions filed with
the Board to the Acting Regional Director's report
and requested a hearing on its contentions. After full
consideration, the Board, on January 25, 1972, issued
its Decision and Certification of Representative
denying the request for a hearing as the Respondent
"presented insufficient evidence of a material issue of
fact," adopting the Regional Director's recommen-
dations, and certifying the Union. In addition, a
motion for reconsideration was filed on June 13,
1972, requesting that the Board reconsider its
Decision and Certification of Representative in Case
14-RC-6856 and that a hearing on Respondent's
objections be directed. On June 23, 1972, the Board
denied this motion because "it contains nothing not
previously considered by the Board and presents
insufficient evidence of a material issue of fact to
cause the Board to reconsider its prior decision that a
hearing in this matter is unwarranted."
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 relitigate issues which were or could have been
litigated in a prior representation proceeding.2
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
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
2 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Secs 102.67(f) and 102 69(c)
198 NLRB No. 92
KXEN, INC. 629
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.3 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Missouri corporation, at all material
times herein has maintained its principal office and
place of business in Mitchell, Illinois. Respondent
also maintains a business office in St. Louis,
Missouri. Respondent is, and has been at all times
material herein, engaged in the operation of a radio
broadcasting station at its Mitchell, Illinois, facility.
During the past calendar year, a period which is
representative of its operations during all times
material herein, Respondent, in the course and
conduct of its business operations, derived gross
revenues in excess of $100,000 from sales of
advertising, including in excess of $10,000 from firms
located outside the State of Illinois.
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
International Brotherhood of Electrical Workers,
Local 4, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
professional employees, guards, and supervisors
as defined in the Act.
2. The certification
On November 8, 1971, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 14 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 25, 1972, 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 February 1, 1972, 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 February 9, 1972, and continu-
ing 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 February 9, 1972, 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.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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 engineers and announcer-operators, exclud-
ing office clerical employees, salesmen, janitors,
3 Paragraph 9 of the complaint alleges that since on or about February 9,
1972, Respondent has refused to recognize and bargain with the Union
Respondent 's answer "[d ]enies the allegations of paragraph 9 except that
Respondent admits that it does not accept" the Board's certification as
"valid or binding upon it " Inasmuch as Respondent 's answer admits that
The activities of 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
the Union requested bargaining and as the Respondent is contesting the
validity of the Union's certification , we treat Respondent 's answer as not
denying, and therefore admitting, that it has refused to honor the Union's
request . Further, we note that the Respondent concedes that "it has now
refused to bargain."
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. KXEN, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Electrical Work-
ers, Local 4, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All engineers and announcer-operators, ex-
cluding office clerical employees, salesmen, janitors,
professional employees, 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 January 25, 1972, 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 February 9, 1972, 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,
KXEN, Inc., 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 International Broth-
erhood of Electrical Workers, Local 4, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All engineers and announcer-operators, exclud-
ing office clerical employees, salesmen, janitors,
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 Mitchell, Illinois, place of business
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 14, 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 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,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by 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 "
KXEN, INC.
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 Inter-
national Brotherhood of Electrical Workers,
Local 4, AFL-CIO, as the exclusive representa-
tive 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 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,
631
embody such understanding in a signed agree-
ment. The bargaining unit is:
All engineers and announcer-operators, ex-
cluding office clerical employees , salesmen,
janitors, professional employees, guards, and
supervisors as defined in the Act.
KXEN, INC.
(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 , 210 North 12th Boulevard, Room
448, St . Louis, Missouri 63101 , Telephone
314-622-4167.