Southwest Texas Public Broadcasting Council

National Labor Relations Board - Board Decisions

Apr 17, 1979

241 N.L.R.B. 923 (N.L.R.B. 1979)

SOULTIHWEST TEXAS PUBLIC BROAI)CAS'ING COUNCIL.
Southwest Texas Public Broadcasting Council and
KLRN Production Employees Guild. Case 23-CA-
7258
April 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS PENEI..()
ANI) MURPtHY
Upon a charge filed on September 28, 1978, by
KLRN Production Employees Guild, herein called
the Union, and duly served on Southwest Texas Pub-
lic Broadcasting Council, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 23, issued
a complaint on November 2, 1978, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (I)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, 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 September 8,
1977,1 following a Board election in Case 23 RC-
4328 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about July 17, 1978, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On November 17, 1978, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On January 15, 1979, the counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 18,
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
I Par. 8 of the complaint inadvertently alleges "September 8. 1978." rather
than the correct date of "September 8, 1977." as the date the Union com-
menced its status as collective-bargaining representative of certain of Re-
spondent's production department employees.
2 Official notice is taken ef the record in the representation proceeding.
Case 23 RC 4328. as the term "record" is defined in Secs. 10268 and
102.6
9
(g) of the Board's Rules and Regulations, Series F., as amended. See
LT' Eleclrosvstems. Inc, 166 NLRB 938 (1967). enfd 388 F.2d 683 (4th.
Cir. 1968): Golden Age Beverage (Co., 167 NlRB 151 (1967), enld. 415 F.2d
26 (5th Cir. 1969): Inierlpe (o. v. Penclli. 269 F. Supp. 573 (D C.Va 1967):
Folle Corp., 164 Nl.RB 378 (1967). enfd 397 F 2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA. as amended.
Judgment should not be granted. Respondent there-
after filed a response to 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 t'or Summary Judgment
In its answer to the complaint and response to No-
tice To Show Cause Respondent acknowledges that it
has refused to bargain, but attacks the validity of the
Union's certification on the grounds that the Board
ruled improperly when, in the underlying representa-
tion proceeding, it asserted jurisdiction over Respon-
dent;' found the Union to be a labor organization
within the meaning of Section 2(5) of' the Act:4 over-
ruled Respondent's challenges to certain ballots and
its objections: and denied Respondent's motion to re-
open the record to proffer certain additional evidence
which the Board found to he irrelevant to the opera-
tive facts at the time of the election. The General
Counsel, on the other hand, argues that all material
issues have been decided and there are no litigable
issues warranting a hearing. We agree with the Gen-
eral Counsel.
Review of the record herein, including that in the
representation proceeding, Case 23 RC 4328, estab-
lishes that pursuant to the Board's above-cited Deci-
sion and Direction of Election of January 27, 1977,'
an election was conducted on March 16, 1977, and all
three of the ballots cast were challenged by Respon-
dent. Respondent thereafter also filed timely objec-
tions to the election. As to the challenges, Respondent
contended that all three employees were students and
casual, irregular part-time employees and therefore
ineligible to vote. In its objections Respondent con-
tended, inter alia. that the Union had engaged in
pressure tactics and improper communication with
employees prior to the election and improper elec-
tioneering with voters preparing to cast their ballots.
Respondent also reiterated as an objection its conten-
tion, decided in the Board's Decision and Direction
of Election, that Southwest Texas Public Broadcast-
ing Council is not an "employer" within the meaning
of Section 2(2) of the Act because of its relationship
'Snoulhwes Teal Public Broadcasting (oun-il. 227 NlRB 1560 (1977).
Id at fn 2s
On February 4, 1977, Respondent filed with the Regional Director for
Region 23 a motion to dismiss petition for election in Case 23 RC 4328 on
the grounds that. inter /lia. inasmuch as it no longer employed any full-time
and/or regular part-time employees. there were no employees in the unit
found appropriate h3 the Board On FehruarD 24. 1977, the Regional Direc-
tor denied Respondent's motion finding that such matters could best be
resolved, if necessary in a postelection proceeding.
241 NLRB No. 153
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the University of Texas which is exempt from
the Act's coverage. Respondent also filed a motion to
reopen the record to admit certain evidence which it
contended further supported a finding that all of the
eligible voters were students and casual, irregular
part-time employees. Thereafter, the Regional Direc-
tor for Region 23 directed a hearing for the purpose
of taking evidence on issues raised by the Challenged
ballots and Respondent's objections. On May 9, 1977,
Hearing Officer Richard J. Linton issued a report rec-
ommending that the Board overrule the challenges
and Respondent's objections. Thereafter the Board,
having reviewed the record in light of Respondent's
exceptions to the Hearing Officer's report and brieft
issued an unpublished Supplemental Decision and
Direction in which it denied Respondent's motion to
reopen the record, adopted the Hearing Officer's find-
ings and recommendations, and directed the Regional
Director to open and count the challenged ballots
and to issue the appropriate certification. The revised
tally of ballots established that three votes were cast
for, and none against, the Union. Consequently, on
September 8, 1977, the Union was certified by the
Regional Director for Region 23 as the collective-bar-
gaining representative of the employees in the appro-
priate unit.
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.6
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-
erly litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
Respondent is, and has been at all times material
herein, a private, nonprofit, tax-exempt corporation
duly organized under and existing by virtue of the
6See Pittsburgh Plate 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).
laws of the State of Texas, having its principal office
and place of business in Austin, Texas, where it main-
tains and operates a noncommercial educational tele-
vision broadcasting station for the Austin and San
Antonio, Texas, area.
During the preceding 12 months, a representative
period, Respondent, in the course and conduct of its
business, received gross revenues in excess of
$100,000, and operated under a license and permit of
the Federal Communications Commission.
We find, on the basis of the foregoing, the 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. THE I.ABOR ORGANIZATION INVOLVED
KLRN Production Employees Guild is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
III. HE UNFAIR LABOR PRACI(CES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time camera op-
erators, crew chiefs, lighting technicians, techni-
cal directors, directors' assistants, assistant direc-
tors, boom operators, audio assistants, floor
managers, floor assistants, production assistants,
and on-the-job trainees within the production
department employed by Respondent at its Aus-
tin, Texas facility, but excluding all other em-
ployees, including but not limited to, lighting de-
signers, engineers, writers, directors, producers,
college work study personnel, actors, musicians,
singers, dancers, clerical employees, employees
in the costume, prop, make-up, and scene de-
partment, graphic artists, all managerial employ-
ees, professional employees, guards, watchmen,
and supervisors, as defined in the Act.
2. The certification
On March 16, 1977, 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 23, designated the Union as their
924
SOUTHWEST TEXAS PUBLIC BROADCASTING COUNCIL
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 8, 1977, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondents Refusal
Commencing on or about July 5, 1978, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
July 17, 1978, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
July 17, 1978, 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, Respondent has en-
gaged 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
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, 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. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(aX5) 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultr, Compane, Inc., 136 NLRB
785 (1962); Commerce Company dbl/a Lamnar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964): 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:
CONCI;.SIONS OF LAIW
I. Southwest Texas Public Broadcasting Council is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. KLRN Production Employees Guild is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time camera op-
erators, crew chiefs, lighting technicians, technical di-
rectors, directors' assistants, assistant directors, boom
operators, audio assistants, floor managers, floor as-
sistants, production assistants, and on-the-job trainees
within the production department employed by Re-
spondent at its Austin, Texas facility, but excluding
all other employees, including but not limited to,
lighting designers, engineers, writers, directors, pro-
ducers, college work study personnel, actors, musi-
cians, singers, dancers, clerical employees, employees
in the costume, prop, make-up, and scene depart-
ment, graphic artists, all managerial employees, pro-
fessional employees, guards, watchmen, and supervi-
sors, 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 September 8, 1977, the above-named la-
bor 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 July 17, 1978, 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
925
I)ECISIONS OF NAIIONAI LABOR RELATIONS BOARD
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,
Southwest Texas Public Broadcasting Council, Aus-
tin, Texas, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with KLRN Production Em-
ployees Guild as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time camera op-
erators, crew chiefs, lighting technicians, techni-
cal directors, directors' assistants, assistant direc-
tors, boom operators, audio assistants, floor
managers, floor assistants, production assistants,
and on-the-job trainees within the production
department employed by Respondent at its Aus-
tin, Texas facility, but excluding all other em-
ployees, including but not limited to, lighting de-
signers, engineers, writers, directors, producers,
college work study personnel, actors, musicians,
singers, dancers, clerical employees, employees
in the costume, prop, make-up, and scene de-
partment, graphic artists, all managerial employ-
ees, professional employees, guards, watchmen,
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Austin, Texas, facility copies of the
attached notice marked "Appendix."7 Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
7 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."
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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOlICE( 1o EMPI.OYEES
POSTED BY ORDER OF IHE.
NATIONAL. LABOR REl.ATIONS BOARD
An Agency of the United States Government
Wt WILl. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
KLRN Production Employees Guild as the ex-
clusive representative of the employees in the
bargaining unit described below.
Wt 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 wll., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of' all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
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 full-time and regular part-time camera
operators, crew chiefs, lighting technicians,
technical directors, directors' assistants, assist-
ant directors, boom operators, audio assis-
tants, floor managers, floor assistants, produc-
tion assistants, and on-the-job trainees within
the production department employed by Re-
spondent at its Austin, Texas facility, but ex-
cluding all other employees, including but not
limited to, lighting designers, engineers, writ-
ers, directors, producers, college work study
personnel, actors, musicians, singers, dancers,
clerical employees, employees in the costume,
prop, make-up, and scene department, graphic
artists, all managerial employees, professional
employees, guards, watchmen, and supervi-
sors, as defined in the Act.
SOUTIWEST TEXAS PBI.I(t BROADCASTING
COUNC I.
926