WGAL TV, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1980

250 N.L.R.B. 223 (N.L.R.B. 1980)

NEG(;AI V, INCt
WGAL-TV, Inc. land Chauffeurs, Teamsters and
Helpers, Local 771, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 4-CA 10667
June 27. 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND) MEMBERS
JlINKINS AND) TRUISI)AI.E
Upon a charge filed on November 29, 1979, by
Chauffuers, Teamsters and Helpers, Local 771, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on
WGAL Television, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
4, issued a complaint on December 27, 1979,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 and 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 October 12,
1979, following a Board election in Case 4-RC-
13421, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;2 and that, commencing on or about October
27, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On January
4 and 30, 1980, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
I In its amended answer to the complaint herein filed on January 30,
1980, Respondent afirmatively states, infter alia. that as of August 15.
1979, WGAL-Television. Inc. was no longer used by Respondent as its
corporate name Respondent further stated that as a result of a sale of
Respondent's assets to Pulitzer Publishing Co., Respondent is now: knovn
as WGAL-TV, Inc. , a Delaware corporation. and is a wholly ownled
subsidiary of Pulitzer Publishing Co In its memorandum in support of
the Motion for Summary Judgment herein. General Counsel stipulated to
the aforementioned facts concerning the changes The caption herein has
accordingly been amended to reflect the correct name of Respondent
I Official notice is taken of the record in the representation proceed-
ing. Case 4 RC-13421. as the term "record" is derfined in Sees 1)2 68
and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended
See LTV Elecirosystemi. Inc.. 166 NLRB 931 (1967), enfd 388 F 2d 683
(4th Cir. 19681) Golden 4Age Beverage Co., 167 NLRB 151 (1967). enfd 415
F 2d 26 (5th Cir 1969); Intertype Co. s Penlrll. 269 F Supp 573
(DC.Va. 1967). Folleli Corp.. 164 NLRB 378 (1967), enfd 347 F2d 91
(7th Cir 1968): Sec 9(d) of the NLRA, as amended.
250 NLRB No. 37
On February 28, 19X(), counsel fot the Genelral
Counsel filed directly with the Board a Motion bfr
Summary Judgment. Subsequently. on March 7,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not hbe granted. Respondent
thereafter filed a response to the Notice 1To Shoal
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 response and
opposition to the Motion for Summary Judgment
and Notice To Show Cause, Respondent admits
the substantive allegations of the complaint. includ-
ing the jurisdiction of the Board,:' the approprialte-
ness of the unit,' and the request and refusal to
bargain, but attacks both the validity of the second
election and the Union's certification on grounds
previously raised in its objections in the underlying
representation proceeding, Case 4-RC 13421. The
General Counsel contends that Respondent does
not offer any new evidence or plead any special
circumstances herein, that it is attempting to reliti-
gate issues decided in a representation proceeding,
and that those issues may not be relitigated here.
We agree.
Review of the record herein, including the
record in the underlying representation proceeding,
Case 4-RC-13421, reveals that, pursuant to a Stip-
ulation for Certification Upon Consent Election, an
election was conducted on December 21, 1978.
Following the election, the Union filed objections
to conduct affecting the results of the election, a
hearing was held, and the Hearing Officer's Report
on Objections recommended that the election be
: Resporndent in its amended answer to the colmplainl as.rled the
name change and sale of assets adverted to in fit I. upra. .and .ilso adnrmll
that it annually purchased goodls and services valued in excess of $It.(lXX
directly from points outside the Commornssnca:th of Pennslsani;l Since
Respondent in its answer and a;mended answer did not respond It, ior
deny the remaitling jurisdictional aspects of the complaint (which s.erc
agreed to in the Slipulation fIor Certificationll !pon Cronlsent Elctoll III
Case 4 RC-1421). we shall deem those a;spects of the complaint toa he
admitted by Respondcn. Sec Sec 102 21) of the Board', Rules atndr Reg
latins
4 The unit as alleged in the complaint iand admitted aIppropritc ill Re-
spondent's answer accords f ith the killt1 as agreed upon in Ihe StpuIlation
for Certification UIpon Cons, n l Elctcionl While it appears tihail e unll
described in the Board's Dec. mnII and Certification of R preentalllc Inl
advertently referred to Ihe un it inltiill pet ittoned for, the aipproprllatt
unit described ifilru is that agreed upon hb thC parlie, in the SliptilitHiln
for Certlfication Upon Cotlsent Eltction. a.s .alleged in thc comnlplalilt .Ind
admitted In RHptlndenl', salluer
D)t';CISIO)NS OF NATIO)NAL I.AFOR RELATIONS HOARD
set aside and that a new election be held. Respond-
ent filed exceptions to the Hearing Officer's report.
O(n July 2, 1979, the Board issued a Decision and
Direction of Second Election,5 adopting the rec-
ommendations of the Hearing Officer. Pursuant to
the Board's Decision and Direction of Second
Election, a second election was conducted on July
31, 1979, in which the Union received a majority
of the votes cast. Respondent timely filed objec-
tions alleging that the Union had made misrepre-
sentations to employees and that the Union,
through agents, representatives, and/or adherents,
made threats to employee voters. On August 21,
1979, the Regional Director issued a Report on Ob-
jections to Rerun Election recommending, inter
alia, that the objections be dismissed and that a cer-
tification of representative be issued. 6
On October 12, 1979, the Board issued a Deci-
sion and Certification of Representative 7 in Case
4-RC-13421 in which it adopted the Regional Di-
rector's findings, conclusions, and recommenda-
tions. In its response and opposition to the General
Counsel's Motion for Summary Judgment and the
Notice To Show Cause, Respondent again chal-
lenges the validity of the Union's certification, con-
tends that the direction of second election was im-
proper, and asserts that it was entitled to a hearing
on its objections to conduct affecting the results of
the second election.
It is thus clear that Respondent is attempting to
relitigate herein issues which were raised and de-
termined adversely to it in the underlying represen-
tation case. Moreover, it is well settled that the
parties do not have an absolute right to a hearing.
Only when the objecting party presents a prima
facie showing of "substantial and material" issues
which would warrant setting aside an election does
the right to an evidentiary hearing obtain. s Absent
arbitrary action, this qualified right to a hearing
satisfies all statutory and constitutional require-
ments." In this case, the Board fully considered Re-
spondent's objections and exceptions and conclud-
ed that they did not raise material or substantial
issues of fact or law which would warrant reversal
of the Regional Director's recommendations, or
warrant a hearing. l 0
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
: Not reported il voluumes of Board l)ccisions
i An erratlum to the Report on O()bjctins l as issued hby the Regional
DIirector on August 23. 1979
See fir 5, vupra.
N 1R. I. A Mohdin' MianIJuiacluring (Co., 5(X) F 2d 914 (8th Cirt 1974)
' ,Italgumatucd (Clothig Workers nlf .It,,r criU [( Winfild a lnufi tull ring
(o,. I , 1 R. L . 424 F.2d 813. 828 (I)C Cir 1970)
" I)Decision itlld Certificalion of Rcprcsenall; c. ()cltober 12. 1979, fn
leging 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. 11
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly 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
1. 1THE BUSINESS OF RESPONDENT
Respondent WGAL-TV, Inc., is a Deleware
corporation, a wholly owned subsidiary of Pulitzer
Publishing Company, engaged in the operation of a
commercial television broadcasting station in Lan-
caster, Pennsylvania. Annually Respondent, in the
course and conduct of its operations described
above, derived gross revenues in excess of $100,000
and, in the course and conduct of its operations de-
scribed above, it annually purchases goods and
services valued in excess of $10,000 directly from
points outside the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent 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 ILABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers, Local 771,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR L ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
'' See Pittsburgh tPluat Glosr Co. ' L R... 313 U S. 146. I62 (1941);
Rules land Regulati(ns of the Hltlard. Sets 102 67(0 land 102 6 9(c).
224
WGAL-TV, INC.
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employ-
ees of WGAL-TV, Lancaster, Pennsylvania,
in the engineering, production, news, and
maintenance departments, including studio en-
gineers, transmitter engineers, news-coordina-
tor, news persons, anchor persons, news pho-
tographers, producers, artists, photographers,
directors, production assistants, switcher per-
sons, sound persons, audio/video/camera oper-
ators, prop persons, chief maintenance person,
mail person/maintenance person, multilith op-
erator/maintenance person, and maintenance
persons, but excluding all other employees,
sales employees, promotion employees, front
office employees, guards and supervisors as
defined by the Act.
2. The certification
On July 31, 1979, 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
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on October 12, 1979,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about October 18, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 27, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 27, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 ]HE UNFAIR l.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company. Inc.,
136 NLRB 785 (1962); Commerce Company d/b/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:
CONCLUSIONS OF LAW
I. WGAL-TV, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local 771,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees
of WGAL-TV, Lancaster, Pennsylvania, in the en-
gineering, production, news, and maintenance de-
partments, including studio engineers, transmitter
engineers, news-coordinator, news persons, anchor
persons, news photographers, producers, artists,
photographers, directors, production assistants,
switcher persons, sound persons, audio/video/
camera operators, prop persons, chief maintenance
225
DECISIONS ()1: NATIONAL LABOR RELATIONS BOARD
person, mail person/maintenance person, multilith
operator/maintenance person, and maintenance
persons, but excluding all other employees, sales
employees, promotion employees, front office em-
ployees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since October 12, 1979, 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 October 27, 1979, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
WGAL-TV, Inc., Lancaster, 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 Chauffuers, Team-
sters and Helpers, Local 771, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All full-time and regular part-time employ-
ees of WGAL-TV, Lancaster, Pennsylvania,
in the engineering, production, news, and
maintenance departments, including studio en-
gineers, transmitter engineers, news-coordina-
tor, news persons, anchor persons, news pho-
tographers, producers, artists, photographers,
directors, production assistants, switcher per-
sons, sound persons, audio/video/camera oper-
ators, prop persons, chief maintenance persons,
mail person/maintenance person, multilith op-
erator/maintenance person, and maintenance
persons, but excluding all other employees,
sales employees, promotion employees, front
office employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Lancaster, Pennsylvania, facility
copies of the attached notice marked "Appen-
dix." 1 2 Copies of said notice, on forms provided by
the Regional Director for Region 4, 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 Re-
spondent 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.
12 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 Chauffeurs, Teamsters and Helpers,
Local 771, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
226
WGAL-TV. INC
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE witl., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 em-
ployees in the engineering, production,
news, and maintenance departments, includ-
ing studio engineers, transmitter engineers,
news-coordinator, news persons, anchor per-
sons, news photographers, producers, artists,
photographers, directors, production assis-
tants, switcher persons, sound persons,
audio/video/camera operators, prop per-
sons, chief maintenance person, mail person/
maintenance person, multilith operator/
maintenance person, and maintenance per-
sons, but excluding all other employees,
sales employees, promotion employees, front
office employees, guards and supervisors as
defined in the Act.
WGAL-TV, INC.
227