WTMJ, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1976

225 N.L.R.B. 1268 (N.L.R.B. 1976)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WTMJ, Inc. and Directors Guild of America, Inc.
Case 30-CA-3612
September 10, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on April 22, 1976, by Direc-
tors Guild of America, Inc., herein called the Union,
and duly served on WTMJ, Inc., herein called Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 30, issued a complaint and notice of hearing
on May 4, 1976, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice 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 April 5, 1976, fol-
lowing a Board election in Case 30-RC-2609, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; ' and that, commenc-
ing on or about April 19, 1976, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 12, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 28, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 11, 1976, 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. Respondent thereafter 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-
' Official notice is taken of the record in the representation proceeding,
Case 30-RC-2609, 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 Electrosystenis, Inc, 166 NLRB 938 (1967 ), enfd 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
(C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA, as amended
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, its response to the
Motion for Summary Judgment, its Motion for Re-
consideration and for Stay of the Direction of Elec-
tion, and in its response to the Order to Show Cause
Respondent denies the validity of the election and
certification on the basis of the Board's disposition of
its objections to the election in which it disputed the
appropriateness of the unit found to be appropriate
by the Board. Counsel for the General Counsel con-
tends that Respondent, in its several pleadings, raises
no issues which were not determined by the Board in
the underlying representation proceeding. We agree
with the General Counsel.
Review of the record, including that in representa-
tion Case 30-RC-2609, indicates that, after hearing,
the Regional Director, on August 27, 1975, issued an
order transferring the case to the National Labor Re-
lations Board in Washington, D.C. On February 26,
1976, the Board issued a Decision, Order, and Direc-
tion of Election.2 Respondent, on March 10, 1976,
filed a Motion for Reconsideration and for a Stay of
the Direction of Election in which it contended, in
substance, as it had before the Board, that the unit
found by the Board to be appropriate was, in fact,
inappropriate. The Board, in an order of April 14,
1976, denied Respondent's motion as containing
nothing not previously considered by the Board
On March 26, 1976, the Regional Director con-
ducted an election in Case 30-RC-2609 in the unit
found appropriate by the Board. At the conclusion of
the election the parties were furnished with a tally of
ballots for the Union, none was cast against the
Union and 1 ballot was challenged. On April 5, 1976,
the Regional Director certified the Union as exclu-
sive collective-bargaining representative of the unit
found appropriate. The Board, on April 14, 1976, is-
sued an Order Denying Motion for Reconsideration
and for Stay of the Direction of Election.
By letter of April 7, 1976, the Union requested Re-
spondent to meet and bargain with it and in a letter
of April 19, Respondent declined to meet and bar-
gain with the Union, citing its intent to seek judicial
review. In its answer to the complaint and in its other
pleadings noted above, Respondent substantially
reiterates its denial of the appropriateness of the unit.
We thus find that Respondent has raised no new is-
sues properly litigable in this proceeding.
'222 NLRB I I I I
225 NLRB No. 189
WTMJ, INC 1269
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any newly discovered 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 pro-
ceeding. We shall, accordingly, grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, is engaged
in radio and television broadcasting at its Milwau-
kee, Wisconsin, location. During the past calendar
year Respondent received gross revenue in excess of
$100,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 assertiuris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Inc., television station in Milwaukee, Wiscon-
sin,4 but excluding all other employees, guards,
and supersivors as defined in the Act.
2. The certification
On March 26, 1976, 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 30, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on April 5, 1976, and the Union contin-
ues 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 April 7, 1976, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about April 19, 1976, 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 exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
April 19, 1976, 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.
Directors Guild of America, Inc., is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
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 producer/directors and all others doing
the work of directors employed by the WTMJ,
3 See 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)
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, inti-
mate, and substantial relationship to trade, traffic,
and commerce 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-
' Senior floor managers were excluded but the trainee was included in the
unit 222 NLRB I III, fn 5
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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 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 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
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
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 Re-
lations Board hereby orders that Respondent,
WTMJ, Inc., its officers, agents, successors, and as-
signs, 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 Directors Guild of
America, Inc., as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
CONCLUSIONS OF LAW
1. WTMJ, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Directors Guild of America, Inc., is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All producer/directors and all others doing the
work of directors employed by the WTMJ Inc., tele-
vision station in Milwaukee, Wisconsin, but exclud-
ing all other employees, guards, and supervisors 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 April 5, 1976, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about April 19, 1976, 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
All producer/directors and all others doing
the work of directors employed by the WTMJ,
Inc., television station in Milwaukee, Wisconsin,
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 facility in Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Re-
gional Director for Region 30, after being duly
signed by Respondent's representative, shall be post-
ed 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
5In 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 "
WTMJ, INC
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Di-
rectors Guild of America, Inc., as the exclusive
representative of the employees in the bargain-
ing unit described below.
1271
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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 producer/directors and all others doing
the work of directors, employed by the
WTMJ, Inc., television station in Milwaukee,
Wisconsin, but excluding all other employees,
guards, and supervisors as defined in the Act.
WTMJ, INC.