Meredith Corp.

National Labor Relations Board - Board Decisions

Jul 9, 1979

243 N.L.R.B. 323 (N.L.R.B. 1979)

MEREDITH CORPORATION
Meredith Corporation and American Federation of
Television & Radio Artists, Kansas City/Omaha
Local. Case 17 CA-8748
July 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on January 29, 1979, by
American Federation of Television & Radio Artists,
Kansas City/Omaha Local, herein called the Union,
and duly served on Meredith Corporation, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 17, issued a complaint on February 15,
1979, 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
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 December 13,
1978, following a Board election in Case 17-RC
8622, the Union was duly certified as the exclusive
collective-bargaining representative of certain of Re-
spondent's employees as a result of which they were
made part of a preexisting appropriate unit;' and
that, commencing on or about January 8, 1979, and
at all times thereafter, including January 23, 1979,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative of those employ-
ees, although the Union has requested and is request-
ing it to do so. On March 9, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint. On
March 21, 1979, counsel for the General Counsel filed
directly with the Board a Motion To Transfer Pro-
ceeding to Board and Motion for Summary Judg-
ment. Subsequently, on April 6, 1979, the Board is-
sued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
I Official notice is taken of the record in the representation proceeding,
Case 17 RC-8622, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
the Notice To Show Cause.
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
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent admits its
refusal to bargain but denies that it thereby violated
Section 8(a)(5) and (1) of the Act. Respondent's an-
swer to the complaint contends, inter alia. that the
certification of the Union as the exclusive bargaining
representative of Respondent's directors and produc-
tion assistants employed at its Fairway, Kansas, facil-
ity is null and void because they are supervisors
within the meaning of the Act. Respondent's response
to the Notice To Show Cause contends that the Re-
gional Director and the Board committed a legal and
factual error in the underlying representation case b,
finding that the aforesaid directors and production
assistants are not supervisors as defined in Section
2(11) of the Act. Respondent further argues that the
Board has, in earlier cases, recognized that directors
and production assistants are supervisors as defined
in the Act, and that later Board decisions holding to
the contrary are distinguishable from this case and in
contravention of the legislative purpose of Section
2(11) of the Act.
Counsel for the General Counsel argues that Re-
spondent's contentions are without merit as they raise
issues which were presented to and decided by the
Board in the underlying representation case.
A review of the record herein, including the record
in Case 17-RC-8622, shows the following: On Sep-
tember 21, 1978, the Union filed a petition for an
election seeking to determine if a group of employees
consisting of all directors and production assistants
employed by Respondent at its Fairway, Kansas, fa-
cility desired to be included in the existing unit (es-
sentially composed of announcers and newsmen) cur-
rently represented by the Union. After a hearing, on
November 9, 1978, the Acting Regional Director is-
sued a Decision and Direction of Election in which he
found that these directors and production assistants
constituted an appropriate unit, and that such unit
would become a part of the existing unit represented
by the Union if a majority of the employees involved
voted for representation. On November 21, 1978, Re-
spondent filed a request for review of the Acting Re-
gional Director's Decision and Direction of Election
243 NLRB No. 56
323
I)DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
contesting the inclusion of directors and production
assistants in the existing unit. The request for review
was denied on December 1, 1978.
On December 5, 1978, an election by secret ballot
was conducted under the direction and supervision of
the Regional Director among the employees in the
voting group of directors and production assistants. A
majority of these employees designated and selected
the Union as their representative for the purpose of
collective bargaining with Respondent. On December
13, 1978, the Union was certified to bargain for such
employees as part of the group of employees which it
currently represented.
Commencing on or about January 8, 1979, the
Union requested. and continues to request. Respon-
dent to bargain collectively with it with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment concerning the
directors and production assistants. Since on or about
January 8, 1979, and at all times thereafter. Respon-
dent has refused, and is continuing to refuse, to recog-
nize the Union and to meet and bargain collectively
with the Union as the exclusive bargaining represent-
ative of those employees on the ground that they are
supervisors under the Act.
The issues which Respondent seeks to raise at this
time were raised and decided by the Acting Regional
Director in the underlying representation proceeding.
In denying Respondent's request for review of the
Acting Regional Director's Decision and Direction of
Election, the Board found that Respondent had
raised no substantial issues warranting review. It thus
appears that Respondent is attempting to raise again
issues which were specifically considered and resolved
by the Acting Regional Director and the Board in the
underlying representation case.
It is well settled that in the absence of newly dis-
covered 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 Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
2See Pitsburgh Plaie Glass Co, v. N.L.R B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
erly litigable in this unfair labor practice proceeding.3
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FININ(;S ()I FA(I
I. I1i BUSINEiSS ()1 RSPONDENI'
Respondent is an Iowa corporation engaged in the
communications industry, including the operation of
radio and television stations and the printing and
publishing of magazines and books. Respondent op-
erates a facility in Fairway, Kansas. In the course and
conduct of its business operations within the State of
Iowa. Respondent annually purchases goods and ser-
vices valued in excess of $50,000 directly from sources
located outside the State of Iowa.
We find, on the basis of the foregoing, that Respon-
dent 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. IE I.ABOR O)R(;ANIZATION INVOI.VED
American Federation of Television & Radio Art-
ists, Kansas City/Omaha Local, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111. TIlE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
The units and the certification
(a) The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees employed by Respondent as
newsmen and announcers, including its free-
lance newsmen and announcers who perform as
talent on radio or television programs produced
by Respondent at its Fairway, Kansas, facility,
but excluding office clerical employees, guards,
and supervisors as defined in the Act.
At all times material herein, the Union has been the
exclusive bargaining representative of the employees
Respondent denies the appropriateness of the overall unit. which, as al-
leged in the complaint, includes the directors and production assistants em-
ployed at its Fairway, Kansas, facility, for the same reason it denies the
propriety of the certification herein. We find that this denial is without merit
in light of the Board's finding in the underlying representation case that the
directors and production assistants are employees.
324
MEREDITH CORPORATION
in said unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
within the meaning of Section 9(a) of the Act, and has
maintained with Respondent a collective-bargaining
agreement covering the employees therein, effective
further from December 1, 1976, through November
30, 1979.
(b) On December 5, 1978, a majority of the em-
ployees of Respondent in the following unit or group
of employees, in a secret-ballot election conducted
under the supervision of the Regional Director for
Region 17. designated the Union as their representa-
tive for the purpose of collective bargaining with Re-
spondent, and by so doing indicated a desire to be in,
and were included in and became a part of, the ap-
propriate unit designated in subparagraph (a) above:
All directors and production assistants employed
by Respondent at its Fairway, Kansas. facility,
but excluding all office clerical employees,
guards, and supervisors as defined in the Act.
(c) On December 13, 1978, the Union was certified
to bargain for the group of employees described in
subparagraph (b) as part of the unit currently repre-
sented by the Union described above in subpara-
graph (a).
(d) As a result of the election in Case 17-RC-8622,
since December 5, 1978, the following employees con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent as
newsman and announcers, including its free-
lance newsmen and announcers, who perform as
talent on radio or television programs produced
by Respondent at its Fairway, Kansas, facility,
including all directors and production assistants
employed at said facility, but excluding office
clerical employees, guards and supervisors as de-
fined in the Act.
(e) At all times since December 5, 1978, the Union
has been, and is now, the exclusive bargaining repre-
sentative of the employees in the overall unit de-
scribed above in subparagraph (d) within the mean-
ing of Section 9(a) of the Act, and since December 13,
1978, has been the certified exclusive representative of
the directors and production assistants included
within that unit.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about January 8, 1979, and at
all times thereafter, the Union has requested, and
continues to request, Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of the group of employees consisting of
directors and production assistants. Commencing on
or about January 8, 1979, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the certified exclusive representative for col-
lective bargaining of those employees.
Accordingly, we find that Respondent has, since
January 8, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the certified
exclusive representative of the group of employees
consisting of directors and production assistants, and
as a result the employees in the overall appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and () of the
Act.
IV. 11E EFFIi('I ()F 11 tU:NI:AIR I.ABOR PRA('CTICES
UPON ('()MMER('I
The activities of Respondent set forth in section
Ill, above, occuring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. rIlE 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 (I1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
certified exclusive representative of the group of em-
ployees consisting of directors and production assis-
tants, and, if an understanding is reached, embody
such understanding in a signed agreement.
To insure that these employees will be accorded the
services of their selected bargaining agent for the pe-
riod provided by law, we shall construe the initial
period of certification as beginning on the date Re-
spondent commences to bargain in good faith with
the Union as their recognized bargaining representa-
tive in the overall appropriate unit. See Mar-Jac Poul-
try Company, Inc., 136 NLRB 785 (1962); Commerce
Company d/h/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817: Burnett Construction Company, 149
NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
325
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
CONCI.USIONS ()F LAW
1. Meredith Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. American Federation of Television & Radio
Artists, Kansas City/Omaha Local, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent as free-
lance artists to perform as talent on radio or television
programs produced by Respondent at its Fairway,
Kansas, facility, but excluding all office clerical em-
ployees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material herein, the Union has been
the representative of the employees in the unit de-
scribed above in paragraph 3 within the meaning of
Section 9(a) of the Act, and the employees therein are
currently covered by a collective-bargaining agree-
ment between Respondent and the Union, which
agreement is effective from December , 1976,
through November 30, 1979.
5. On December 5, 1978, a majority of the direc-
tors and production assistants employed at Respon-
dent's Fairway, Kansas, facility, by secret-ballot elec-
tion, designated the Union as their exclusive
representative for purposes of collective bargaining,
and thereby evinced a desire to become, and became,
a part of the appropriate unit described above. On
December 13, 1978, the Union was certified to repre-
sent the directors and production assistants as part of
the currently represented unit of employees described
above in paragraph 3.
6. As a result of the election in Case 17-RC-8622,
since December 5, 1978, all employees employed by
Respondent as freelance artists to perform as talent
on radio or television programs produced by Respon-
dent at its Fairway, Kansas, facility, including all di-
rectors and production assistants employed at said fa-
cility, but excluding all office clerical employees,
guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
7. Since December 5, 1978, the Union has been
and now is the exclusive representative of the employ-
ees in the overall unit described above in paragraph 6
for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act, and since Decem-
ber 13, 1978, has been and now is the certified exclu-
sive representative of the directors and production as-
sistants included within that unit.
8. By refusing on or about January 8, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of the directors and production
assistants employed by Respondent in the aforesaid
appropriate unit, and as a result the employees
therein, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
9. 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 them in Sec-
tion 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.
10. 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 Rela-
tions Board hereby orders that the Respondent, Mer-
edith Corporation, Fairway, Kansas, 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 American Federation of
Television & Radio Artists, Kansas City/Omaha Lo-
cal, as the exclusive bargaining representative of its
employees employed as directors and production as-
sistants at its Fairway, Kansas, facility in the follow-
ing appropriate unit:
All employees employed by Respondent as
newsmen and announcers, including its free-
lance newsmen and announcers, who perform as
talent on radio or television programs produced
by Respondent at its Fairway, Kansas, facility,
including all directors and production assistants
employed at said facility, but excluding office
clerical 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
the employees employed as directors and production
assistants in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
326
MEREDITH CORPORATION
(b) Post at its Fairway, Kansas, facility copies of
the attached notice marked "Appendix" 4 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 17, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
4 In the event that this Order is enforced hy a Judgment ofa United States
Court of Appeals, the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to .I Judgment
of the United States Court of Appeals Eniorcing an Order o the National
Labor Relations Board."
APPENDIX
NorI(E To ENPI.PLoYUS
PosII)D BY ORDER ()F l1IL
NAIIONAI. LABOR RI.AlIO()NS BOARD
An Agency of the United States Government
Wi WIl. N refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with
American Federation of Television & Radio Art-
ists, Kansas City/Omaha Local, as the exclusive
representative of the employees employed by us
as directors and production assistants in the bar-
gaining unit described below.
WE WIl.,. NO' 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 WILt., upon request. bargain with the
above-named Union. as the exclusive representa-
tive of all employees employed as directors and
production assistants in the bargaining unit de-
scribed below, with respect to rates of pa.
wages. 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 employees employed by us as newsmen
and announcers, including our free-lance
newsmen and announcers. who perform as tal-
ent on radio or television programs produced
by us at our Fairway., Kansas. facility. includ-
ing all directors and production assistants enm-
ployed at said facility, but excluding office
clerical employees. guards. and supervisors as
defined in the Act.
MNRII)III ()RI'P()RAIlit)N
327