Lorimar Productions

National Labor Relations Board - Board Decisions

Apr 21, 1984

270 N.L.R.B. 18 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lorimar Productions, Inc. and Production Office
Coordinators and Accountants Guild Local 717,
International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators
of the United States and Canada. Case 31-CA-
12685
21 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 8 December
1982, the General Counsel of the National Labor
Relations Board issued a complaint 20 January
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 12 November
1981, following a Board election in Case 31-RC-
4957, the Union was certified as the exclusive col-
lective-bargaining representative of the Company's
employees in the unit found appropriate. (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), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 2 September 1982 the Com-
pany has refused to bargain with the Union. On 14
February 1983 the Company filed its answer admit-
ting in part and denying in part the allegations in
the complaint.
On 28 March 1983 the General Counsel filed a
Motion for Summary Judgment. On 30 March 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint, the Respondent
denies that the unit of employees certified in Case
31-RC-4957 is appropriate for purposes of collec-
tive bargaining; that a majority of the Respondent's
employees selected the Union as their exclusive
collective-bargaining representative; that the Union
has been, since 12 November 1981, the exclusive
representative of certain of the Respondent's em-
ployees; that the Union has requested and is re-
questing the Respondent to bargain collectively
with it; that the Respondent has, since 2 September
1982, refused to bargain collectively with the
270 NLRB No. 5
Union; and that the Respondent has violated the
Act by its refusal to bargain. The Respondent's
answer also contains the following affirmative de-
fenses: the Union did not make a clear and proper
demand to bargain on behalf of the Respondent's
estimators;' the Respondent had a good-faith doubt
that the Union represented a majority of the Re-
spondent's estimators; the Union's certification
should be invalidated because (a) estimators are
confidential employees, (b) estimators are manage-
rial employees, (c) estimators are technical employ-
ees or otherwise constitute an inappropriate unit,
(d) the election took place before the Board ruled
on the Respondent's request for review, (e) the
election was unfair because it was not secret, and
because of material misrepresentations or "incor-
rect impressions" created by the Union among em-
ployees, (f) the election was held before the unit
was determined, (g) the official NLRB notice mis-
represented the bargaining unit, (h) the manner in
which the election was conducted violated the em-
ployees' rights under the 1, 5, and 14 amendments
of the United States Constitution, and (i) the objec-
tions were improperly overruled without a hearing.
In its response to the Notice to Show Cause, the
Respondent requests the Board to reconsider the
application of Section 102.67(b) of the Board's
Rules and Regulations, which permits an election
to be conducted while a party's request for review
of a Regional Director's order is pending with the
Board. 2 The Respondent also challenges the Re-
L The Respondent contends that the Union never made a clear and
proper demand for bargaining with respect to the estimators. However,
by its letter dated 2 September 1982 the Union requested the Respondent
to bargain collectively with the Union as the exclusive collective-bargain-
ing representative of "the estimators (accountants)." In its 14 October
letter the Union reiterated its 2 September "request to commence negoti-
ations on behalf of the Accountants (Estimators)" and in its 2 November
letter the Union repeated its request "to commence negotiations on behalf
of the estimators." (Although the Respondent asserts that it did not re-
ceive the Union's 2 September letter until a second copy of it was at-
tached to the Union's 2 November bargaining demand, it is clear that the
Respondent timely received the Union's 14 October and 2 November de-
mands.) The Respondent replied to the bargaining demands in a letter
dated 11 November in which it asserted that "the identity of the classifi-
cations of employees on whose behalf [the Union is] seeking to bargain is
confusing and inconsistent." Thus, the Respondent stated that it "denied"
the Union's bargaining request. We find that not only was the Union
clear in making its request to bargain on behalf of the estimators, but also
that its demand was consistent with the Board's certification of the Union
as the exclusive bargaining representative of "all estimators of the [Re-
spondentl employed at its facilities located at 10202 Washington Boule-
vard, Culver City, California, and at 4000 Warner Boulevard, Burbank,
California." Accordingly, we find that the Union has made a clear and
proper demand for bargaining.
2 The relevant portion of Sec. 102.67(b) provides: ". .. if a pending
request for review has not been ruled upon or has been granted ballots
whose validity might be affected by the final Board decision shall be seg-
regated in an appropriate manner, and all ballots shall be impounded and
remain unopened pending such decision."
18
LORIMAR PRODUCTIONS
gional Director's decision to overrule its objections
and to certify the Union without conducting a
hearing. The General Counsel asserts that the Re-
spondent seeks to relitigate issues that were raised
and decided in the representation case. We agree
with the General Counsel.
Our review of the record, including the record
in Case 31-RC-4957, reveals that, on a petition
duly filed under Section 9(c) of the Act, a repre-
sentation hearing was held before a hearing officer
of the National Labor Relations Board. Thereafter,
the Regional Director issued his Decision and Di-
rection of Election on 27 January 1981. The Re-
spondent filed with the Board a request for review
of the Regional Director's Decision and Direction
of Election in which it challenged, inter alia, the
Regional Director's finding that the unit of produc-
tion coordinators and estimators constituted an ap-
propriate unit. By telegraphic order of 25 February
1981 the Board granted the Respondent's request
for review on the limited issue of whether the pro-
duction coordinators should be included in the ap-
propriate unit; the request was denied in all other
respects.
On 26 February 1981 a secret-ballot election was
conducted and, pursuant to Section 102.67 of the
Board's Rules and Regulations, the ballots were
impounded and segregated pending the Board's de-
cision on the request for review. On 1 September
1981 the Board issued a Decision on Review in
which the production coordinators were excluded
from the appropriate bargaining unit.s Thereafter,
the remaining ballots were opened and counted and
a tally of ballots issued showing that the Union
won the election. The Respondent filed timely ob-
jections to conduct affecting the results of the elec-
tion alleging, inter alia, that the unit was inappro-
priate, that the election was invalid because of the
Board's application of Section 102.67 of the
Board's Rules and Regulations, and that the em-
ployees were not able to cast secret ballots.
On 12 November 1981, following an investiga-
tion of the Respondent's objections, the Regional
Director issued a Supplemental Decision and Certi-
fication of Representative in which he overruled
the Respondent's objections and certified the
Union.4 The Respondent filed a request for review
of the Regional Director's Supplemental Decision
and Certification of Representative, which request
the Union opposed. By telegraphic order 19 Febru-
ary 1982, the Board denied the Respondent's re-
quest for review. It thus appears that the Respond-
" Lorimar Productions, 257 NLRB 1138 (1981).
4 On 17 November 1981 the Regional Director issued an erratum cor-
recting inadvertent errors in portions of the supplemental decision.
ent is attempting to raise issues that were raised in
the underlying representation case.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment. 5
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Company is a California corporation en-
gaged in the production of motion pictures and tel-
evision programs in the Los Angeles, California
area. The Respondent annually sells goods or pro-
vides services valued in excess of $50,000 to firms
located within the State of California, which firms,
in turn, meet one of the Board's direct standards
for assertion of jurisdiction. We find that the Re-
spondent 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 organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 26 February 1981
the Union was certified 12 November 1981 as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All estimators of the Employer employed at
its facilities located at 10202 Washington Bou-
levard, Culver City, California, and at 4000
Warner Boulevard, Burbank, California; ex-
cluding all other employees, production coor-
s Chairman Dotson and Member Hunter did not participate in the un-
derlying representation proceeding. They adopt this finding for institu-
tional reasons.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dinators, professional employees, office clerical
employees, confidential employees, managerial
employees, guards, and supervisors as defined
in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 2 September 1982 and at all times thereaf-
ter, including 14 October 1982 and 2 November
1982, the Union has requested the Company to bar-
gain, and since 11 November 19826 the Company
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.
CONCLUSIONS OF LAW
By refusing on and after 11 November 1982 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Company 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
Section 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 understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial 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, Lorimar Productions, Inc., Culver
City and Burbank, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
The complaint alleges that the Respondent has refused to bargain
with the Union since 2 September 1982. It was not until 11 November
1982, however, that the Respondent informed the Union that it would
not bargain. Accordingly, we find that the Respondent refused to bargain
with the Union as of that date.
(a) Refusing to bargain with Production Office
Coordinators and Accountants Guild Local 717,
International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All estimators of the Employer employed at
its facilities located at 10202 Washington Bou-
levard, Culver City, California, and at 4000
Warner Boulevard, Burbank, California; ex-
cluding all other employees, production coor-
dinators, professional employees, office clerical
employees, confidential employees, managerial
employees, guards, and supervisors as defined
in the Act.
(b) Post at its facility at 10202 Washington Bou-
levard, Culver City, California, and 4000 Warner
Boulevard, Burbank, California, copies of the at-
tached notice marked "Appendix. " 7 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 31, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
20
LORIMAR PRODUCTIONS
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Production
Office Coordinators and Accountants Guild Local
717, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of
the United States and Canada as the exclusive rep-
resentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise 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:
All estimators of the Employer employed at
its facilities located at 10202 Washington Bou-
levard, Culver City, California, and at 4000
Warner Boulevard, Burbank, California; ex-
cluding all other employees, production coor-
dinators, professional employees, office clerical
employees, confidential employees, managerial
employees, guards, and supervisors as defined
in the Act.
LORIMAR PRODUCTIONS, INC.
21