WUSS Radio

National Labor Relations Board - Board Decisions

Jul 14, 1978

236 N.L.R.B. 1529 (N.L.R.B. 1978)

WUSS RADIO
Atlantic Business and Community Development Cor-
poration, d/b/a WUSS Radio and American Feder-
ation of Television and Radio Artists, Philadelphia
Local. Case 4-CA-8416
July 14, 1978
DECISION AND ORDER
By CHAIRMAN FANNING AND Mt MBI RS JI NKINS
AND MtURPHY
Upon a charge filed on January 7, 1977, by Ameri-
can Federation of Television and Radio Artists, Phil-
adelphia Local, herein called the Union, and duly
served on Atlantic Business and Community Devel-
opment Corporation, d/b/a WUSS Radio, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 4, issued a complaint and notice of
hearing on February 25, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)( 1) and
(3) 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding. Subsequently, Respondent filed an
answer to the complaint, admitting in part, but deny-
ing in part, the allegations of the complaint, or the
commission of any unfair labor practices. Thereafter,
on April 14, 1977, the Regional Director for Region 4
issued an amended complaint and notice of hearing,
following an amended charge filed on March 24, al-
leging that Respondent was engaging in certain un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) and Section
2(6) and (7) of the Act. Respondent, by its counsel,
subsequently filed an answer to the amended com-
plaint, admitting certain allegations, denying others.
and denying the commission of any unfair labor
practices.
On June 15, 1977, the Regional Director approved
an informal settlement agreement which the parties
had executed on June 3. By letter dated January 24,
1978, Respondent was informed that the Regional
Director was withdrawing his approval of the infor-
mal settlement agreement due to Respondent's "fail-
ure to comply with the terms of the settlement agree-
ment." The Regional Director's letter concluded by
stating, "Accordingly, I am this date issuing a new
amended complaint and notice of hearing in this
matter." Also on January 24, the Regional Director
issued an amended complaint.'
Thereafter, on March 7, 1978. counsel for the Gen-
eral Counsel filed directlN with the Board a Motion
for Summary Judgment and for issuance of Board
order, with attached exhibits, and on the same date
filed a memorandum in support of the motion.
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-
thoritv 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 the Motion for Summary Judgment herein.
counsel for the General Counsel avers that Respon-
dent has failed to file an 5 answer to the amended
coimplaint in this matter and that under Section 102
.20 of the Board's Rules and Regulations, Series 8, as
amended, the Board should find the allegations of
the complaint to be true and should issue an Order
based on such findings. However, as the Motion for
Summary Judgment correctly sets forth, Respondent
did in fact file an answer to the original complaint
and notice of hearing issued February 25, 1977, and
it also filed an answer to the amended complaint and
notice of hearing issued on April 14, 1977. In both
answers. Respondent denied the commission of any
unfair labor practices. As noted above, the substan-
tive allegations of the amended complaint issued
January 24, 1978, are the same as those contained in
the amended complaint and notice of hearing issued
on April 14. 1977. Thus. Respondent has in fact an-
swered those allegations, and, in doing so has denied
the commission of any unfair labor practices. and
raised litigable issues. In our view, granting a motion
for Summary Judgment based on application of Sec-
tion 102.20 of the Board's Rules is not appropriate in
such circumstances.2 We shall therefore deny the mo-
tion.3
I [hat amended complaint did not include a notice of hearing Apart
from language relating to a nolice of hearing. the 16 numbered paragraphs
are substantiel[ identical to the amended complaint and notice of hearing
ssued on April 14, 1977
In the memorandum In support of the motion herein, counsel for the
(General ( Counsel also asers that Sec 102.
54
c iof the Board's Rules is dispo-
sitle, and that the Board should therefore grant the motion Counsel is in
error Sec 102 54(c, is appllcable onil t-i backpas proceedings after entry of
a Board or court order ( ontrar; to counsel's apparent contention. this is
not a backpas proceeding Moreover. as noted abose. the record shows no
notice of hearing contained in or accompanying the Januarv 1978 complaint
as mandated hb Sec 1112 52 thus. even if this were a backpay proceeding.
no answer hs Respondent would have been required
i Par 6b tf the amnended complaint asserts that Respondent, on December
29. 1976, dlicrlminatoril discharged employee Ansel Bartles and. at all
times since that date. has failed and refused, and continues to fail and refuse
to reinstate Bartles lio4eser, the notice attached to and made a part of the
infornmal settlement agreement approaied bh the Regional I)lreclor on June
('on tin ued
236 NLRB No. 192
1529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that General Counsel's Mo-
tion for Summary Judgment in the above-captioned
15. 1977. clearly stales that Bartle) "declines reinstatement to his former o)r
equivalent position." Although neither the Motion for Summary Judgment
nor the supporting memorandum explains this apparent inconsistency. we
need not reach it at this time. in xiew of our disposition of this matter on
other grounds.
proceeding be, and it hereby is, denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the Re-
gional Director for Region 4 for further appropriate
action.
1530