WTVO-TV

National Labor Relations Board - Board Decisions

Sep 23, 1994

314 N.L.R.B. 1255 (N.L.R.B. 1994)

1255
314 NLRB No. 205
WTVO-TV
1 In its response to the Board’s Notice to Show Cause, the Re-
spondent contends, inter alia, that in light of the Supreme Court’s
recent decision in NLRB v. Health Care & Retirement Corp., 114
S.Ct. 1778 (1994), the Board should reconsider its previous denial
of the Respondent’s request for review of the Acting Regional Di-
rector’s finding in his Decision and Direction of Election in the rep-
resentation proceeding that ‘‘weeknight director/supervisor’’
Hilgendorf was not a statutory supervisor. We reject the Respond-
ent’s contention. In that case, the Supreme Court held that the Board
had improperly applied an ‘‘in the interest of the employer’’ analysis
in finding that the charge nurses at issue were statutory supervisors.
That analysis was not applied by the Acting Regional Director here
with respect to Hilgendorf. Rather, the Acting Regional Director
found that the evidence had failed to show that Hilgendorf’s direc-
tion of production employees was exercised in other than a routine
manner or required independent judgment, or that he made effective
recommendations regarding hiring, etc. Accordingly, we deny the
Respondent’s request for reconsideration.
2 See Biewer Wisconsin Sawmill, 306 NLRB 732 (1992).
Winnebago Television Corporation d/b/a WTVO-
TV and Radio and Television Broadcast Engi-
neers Local Union Number 1220 of the Inter-
national Brotherhood of Electrical Workers,
AFL–CIO–CLC. Case 33–CA–10611
September 23, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On June 1, 1994, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 33–RC–
3801. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On August 11, 1994, the General Counsel filed a
Motion for Summary Judgment. On August 17, 1994,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed an
opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent denies that the unit is
appropriate, that the Union was certified as the exclu-
sive bargaining representative of the unit, and that the
Respondent has refused to recognize and bargain with
the Union as such representative.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941).
Although the Respondent’s answer also denies the
complaint’s allegations that the Union was certified
and that the Respondent has since refused to bargain,
we find that these denials also do not warrant a hear-
ing in this proceeding. The Respondent in its response
to the Notice to Show Cause specifically acknowledges
that the Union was certifed for the unit. Further, in
previous correspondence to the Region, which is at-
tached as an exhibit to the General Counsel’s motion,
the Respondent specifically stated that it is engaged in
a ‘‘technical refusal to bargain’’ with the Union in
order to obtain court review of the certification. The
Respondent has not disputed the authenticity of that
correspondence in its response to the Notice to Show
Cause. We therefore find that the Respondent is refus-
ing to bargain with the Union as alleged in the com-
plaint.2
Accordingly, we grant the Motion for Summary
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois
corporation with an office and place of business in
Rockford, Illinois, has been engaged in the business of
television broadcasting. During the calendar year pre-
ceding issuance of the complaint, the Respondent, in
conducting its business operations, performed services
valued in excess of $50,000 directly to customers lo-
cated outside the State of Illinois, and purchased and
received at its Rockford, Illinois facility goods valued
in excess of $50,000 directly from points outside the
State of Illinois. We find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union is
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held August 23, 1993, the
Union was certified on September 22, 1993, as the col-
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If 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.’’
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time production em-
ployees, including creative service assistants, pro-
duction assistants, directors, technical directors,
videographer/editor, and film/satellite coordinator
employed at the Rockford, Illinois facility, but ex-
cluding production/commercial traffic employees,
administrative department employees, news de-
partment employees, programming employees,
sales department employees, engineers, office
clerical employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since September 14, 1993, the Union has requested
the Respondent to bargain and, since September 14,
1993, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after September 14, 1993, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Winnebago Television Corporation d/b/a
WTVO-TV, Rockford, Illinois, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Radio and Television
Broadcast Engineers Local Union Number 1220, of the
International Brotherhood of Electrical Workers, AFL–
CIO–CLC as the exclusive bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time production em-
ployees, including creative service assistants, pro-
duction assistants, directors, technical directors,
videographer/editor, and film/satellite coordinator
employed at the Rockford, Illinois facility, but ex-
cluding production/commercial traffic employees,
administrative department employees, news de-
partment employees, programming employees,
sales department employees, engineers, office
clerical employees, guards and supervisors as de-
fined in the Act.
(b) Post at its facility in Rockford, Illinois, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 33, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
1257WTVO-TV
WE WILL NOT refuse to bargain with Radio and Tel-
evision Broadcast Engineers Local Union Number
1220 of the International Brotherhood of Electrical
Workers, AFL–CIO–CLC as the exclusive representa-
tive of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time production em-
ployees, including creative service assistants, pro-
duction assistants, directors, technical directors,
videographer/editor, and film/satellite coordinator
employed at the Rockford, Illinois facility, but ex-
cluding production/commercial traffic employees,
administrative department employees, news de-
partment employees, programming employees,
sales department employees, engineers, office
clerical employees, guards and supervisors as de-
fined in the Act.
WINNEBAGO TELEVISION CORPORATION
D/B/A WTVO-TV