Westinghouse Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1974

209 N.L.R.B. 788 (N.L.R.B. 1974)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Broadcasting Company, Incorporated/
KYW-TV and Directors Guild of America, Incor-
porated . Case 4-CA-6581
March 19, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on September 25, 1973, by
Directors Guild of America, Incorporated, herein
called the Union, and duly served on Westinghouse
Broadcasting Company, Incorporated/KYW-TV,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 4, issued a complaint
on October 16, 1973, 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
complaint alleges in substance that on August 30,
1973, following a Board election in Case
4-RC-10351, 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 September 7,
1973, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On October 31, 1973,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 3, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, and memorandum in support
thereof. Subsequently, on December 7, 1973, 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. Thereafter, on January 7,
1974, Respondent filed a response, entitled "Opposi-
tion to Motion for Summary Judgment." The Union
i Official notice is taken of the record in the representation proceeding.
Case 4-RC-10351, as the term "record" is defined in Sees. 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. enfd . 415 F.2d 26 (C.A. 5, 1969);
Inlertype Co. v Penello, 269 F .Supp. 573 (D.C.Va, 1967), Follett Corp., 164
subsequently filed a statement in support of the
Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 answer to the complaint and response to the
Motion for Summary Judgment, Respondent attacks
determinations made in the underlying representa-
tion case. Our review of the record indicates that on
April 30, 1973, the Union filed a petition for a unit of
producer-directors at the Respondent's Philadelphia,
Pennsylvania, television station. On July 23, 1973,
the Regional Director issued his Decision and
Direction of Election, in which he found, contrary to
Respondent, that the Union was a labor organization
within the meaning of the Act, that the producer-
directors were neither supervisors nor managerial
employees, and that a unit of producer-directors was
appropriate for the purposes of collective bargaining.
Respondent then filed a request for review of the
Regional Director's Decision. On August 21, 1973,
the Board denied the request for review on the
grounds that it raised no substantial issues warrant-
ing review.2 On the next day, an election was
conducted, in which all of the four eligible voters cast
ballots for the Union. On August 30, 1973, the Union
was certified.
Respondent now urges that special circumstances
compel reconsideration of the representation case
and that the Board should revoke the certification
and dismiss the complaint. However, as Respondent
has set forth no special circumstances which would
require us to reconsider our decision, we find
Respondent's contentions lacking in merit. It is well
settled that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances 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.3
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
discovered or previously unavailable evidence, nor
NLRB 378, enfd. 397 F.2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA
2 The Board 's Order denying the request for review permitted one
individual to vote subject to challenge.
3 See Pittsburgh Plate Glass Co v N.LKB., 313 US. 146, 162 (1941),
Rules and Regulations of the Board, Sees 102.67(f) and 102 69(c).
209 NLRB No. 121
WESTINGHOUSE BROADCASTING CO.
does it set forth 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. We shall, accordingly,
grant the Motion for Summary Judgment.4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACr
I. THE BUSINESS OF IHE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Indiana,
and is engaged in the operation of broadcasting
stations throughout the United States including
television station KYW-TV, located in Philadelphia,
Pennsylvania.
During the past year, Respondent, in the course
and conduct of its business operations, sold and
provided services valued in excess of $500,000.
During the same period Respondent's sales of
services to customers outside the Commonwealth of
Pennsylvania exceeded $50,000.
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.
H. THE LABOR ORGANIZATION INVOLVED
Directors Guild of America, Incorporated, is a
labor organization within the meaning of Section
2(5) of the Act.
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:
4 In its answer to the complaint , Respondent also denied that the Union
requested Respondent to bargain with it, and that Respondent refused to do
so However , attached to the General Counsel's Motion for Summary
Judgment are a letter dated August 28, 1973, from the Union to
Respondent 's general manager, an affidavit by the Union's executive
secretary, and a letter dated September 25, 1973, from Respondent's
business manager to the Union. The August 28 letter requests bargaining.
The affidavit states that on September 7, 1973, and on various later dates,
the executive secretary requested Respondent 's labor relations lawyer to
789
All staff producer-directors employed by West-
inghouse Broadcasting Company, Inc., at its
television station KYW in Philadelphia, Pennsyl-
vania; but excluding all other employees, guards,
and supervisors as defined in the Act.
2. The certification
On August 22, 1973, 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 4, 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 August 30, 1973, 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 September 7, 1973, 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 September 7, 1973, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since September 7, 1973, 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
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
bargain, and that the latter consistently answered that Respondent had not
yet decided whether to bargain or to test the Board's action in the courts.
The September 25 letter indicates a management decision not to bargain.
Nor does Respondent 's response advert to the request and refusal.
As the contents of the affidavit and letters have thus not been
controverted, they stand admitted . Therefore, Respondent's denials of the
allegations of the complaint are stricken as sham and the allegations are
deemed to have been admitted and found to be true.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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. Westinghouse Broadcasting Company, Incor-
porated/KYW-TV, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Directors Guild of America, Incorporated, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All staff producer-directors employed by West-
inghouse Broadcasting Company, Inc., at its televi-
sion station KYW in Philadelphia, Pennsylvania; but
excluding all other employees, guards, 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 August 30, 1973, 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 September 7, 1973,
and at all times thereafter, to bargain collectively
5 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
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit , Respon-
dent 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,
Westinghouse Broadcasting Company, Incorpora-
ted/KYW-TV, Philadelphia, Pennsylvania, its offi-
cers, 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 Directors Guild of
America, Incorporated, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All staff producer-directors employed by West-
inghouse Broadcasting Company, Inc., at its
television station KYW in Philadelphia, Pennsyl-
vania; but excluding all other 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 television station KYW in Philadel-
phia, Pennsylvania, copies of the attached notice
marked "Appendix."5 Copies of said notice, on
forms provided by the Regional Director for Region
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
WESTINGHOUSE BROADCASTING CO. 791
4, after being duly signed by Respondent's represent-
ative, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4. in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
described 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 agree-
ment . The bargaining unit is:
All staff producer-directors employed by
Westinghouse Broadcasting Company, Inc.,
at its television station KYW in Philadel-
phia, Pennsylvania; but excluding all other
employees, guards, and supervisors as de-
fined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL No•I, refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Direc-
tors Guild of America, Incorporated, as the
exclusive representative 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
WESTINGHOUSE
BROADCASTING
COMPANY,
INCORPORATED/KYW-TV
(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. William J. Green, Jr., Federal
Building , 600 Arch Street, Suite 4400, Philadelphia,
Pennsylvania 19106, Telephone 215-597-7601.