Meredith Corp.

MEREDITH CORPORATION Meredith Corporation and American Federation of Television & Radio Artists, Kansas City/Omaha Local. Case 17 CA-8748 July 9, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on January 29, 1979, by American Federation of Television & Radio Artists, Kansas City/Omaha Local, herein called the Union, and duly served on Meredith Corporation, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Direc- tor for Region 17, issued a complaint on February 15, 1979, 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 com- plaint alleges in substance that on December 13, 1978, following a Board election in Case 17-RC 8622, the Union was duly certified as the exclusive collective-bargaining representative of certain of Re- spondent's employees as a result of which they were made part of a preexisting appropriate unit;' and that, commencing on or about January 8, 1979, and at all times thereafter, including January 23, 1979, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative of those employ- ees, although the Union has requested and is request- ing it to do so. On March 9, 1979, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On March 21, 1979, counsel for the General Counsel filed directly with the Board a Motion To Transfer Pro- ceeding to Board and Motion for Summary Judg- ment. Subsequently, on April 6, 1979, the Board is- sued an order transferring the proceeding to the Board and a Notice To Show Cause why the General I Official notice is taken of the record in the representation proceeding, Case 17 RC-8622, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show 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 its response to the Notice To Show Cause, Respondent admits its refusal to bargain but denies that it thereby violated Section 8(a)(5) and (1) of the Act. Respondent's an- swer to the complaint contends, inter alia. that the certification of the Union as the exclusive bargaining representative of Respondent's directors and produc- tion assistants employed at its Fairway, Kansas, facil- ity is null and void because they are supervisors within the meaning of the Act. Respondent's response to the Notice To Show Cause contends that the Re- gional Director and the Board committed a legal and factual error in the underlying representation case b, finding that the aforesaid directors and production assistants are not supervisors as defined in Section 2(11) of the Act. Respondent further argues that the Board has, in earlier cases, recognized that directors and production assistants are supervisors as defined in the Act, and that later Board decisions holding to the contrary are distinguishable from this case and in contravention of the legislative purpose of Section 2(11) of the Act. Counsel for the General Counsel argues that Re- spondent's contentions are without merit as they raise issues which were presented to and decided by the Board in the underlying representation case. A review of the record herein, including the record in Case 17-RC-8622, shows the following: On Sep- tember 21, 1978, the Union filed a petition for an election seeking to determine if a group of employees consisting of all directors and production assistants employed by Respondent at its Fairway, Kansas, fa- cility desired to be included in the existing unit (es- sentially composed of announcers and newsmen) cur- rently represented by the Union. After a hearing, on November 9, 1978, the Acting Regional Director is- sued a Decision and Direction of Election in which he found that these directors and production assistants constituted an appropriate unit, and that such unit would become a part of the existing unit represented by the Union if a majority of the employees involved voted for representation. On November 21, 1978, Re- spondent filed a request for review of the Acting Re- gional Director's Decision and Direction of Election 243 NLRB No. 56 323 I)DECISIONS OF NATIONAL. LABOR RELATIONS BOARD contesting the inclusion of directors and production assistants in the existing unit. The request for review was denied on December 1, 1978. On December 5, 1978, an election by secret ballot was conducted under the direction and supervision of the Regional Director among the employees in the voting group of directors and production assistants. A majority of these employees designated and selected the Union as their representative for the purpose of collective bargaining with Respondent. On December 13, 1978, the Union was certified to bargain for such employees as part of the group of employees which it currently represented. Commencing on or about January 8, 1979, the Union requested. and continues to request. Respon- dent to bargain collectively with it with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment concerning the directors and production assistants. Since on or about January 8, 1979, and at all times thereafter. Respon- dent has refused, and is continuing to refuse, to recog- nize the Union and to meet and bargain collectively with the Union as the exclusive bargaining represent- ative of those employees on the ground that they are supervisors under the Act. The issues which Respondent seeks to raise at this time were raised and decided by the Acting Regional Director in the underlying representation proceeding. In denying Respondent's request for review of the Acting Regional Director's Decision and Direction of Election, the Board found that Respondent had raised no substantial issues warranting review. It thus appears that Respondent is attempting to raise again issues which were specifically considered and resolved by the Acting Regional Director and the Board in the underlying representation case. 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 relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- 2See Pitsburgh Plaie 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). erly litigable in this unfair labor practice proceeding.3 Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FININ(;S ()I FA(I I. I1i BUSINEiSS ()1 RSPONDENI' Respondent is an Iowa corporation engaged in the communications industry, including the operation of radio and television stations and the printing and publishing of magazines and books. Respondent op- erates a facility in Fairway, Kansas. In the course and conduct of its business operations within the State of Iowa. Respondent annually purchases goods and ser- vices valued in excess of $50,000 directly from sources located outside the State of Iowa. We find, on the basis of the foregoing, that Respon- dent 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. IE I.ABOR O)R(;ANIZATION INVOI.VED American Federation of Television & Radio Art- ists, Kansas City/Omaha Local, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 111. TIlE UNFAIR I.ABOR PRACTICES A. The Representation Proceeding The units and the certification (a) The following employees of Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees employed by Respondent as newsmen and announcers, including its free- lance newsmen and announcers who perform as talent on radio or television programs produced by Respondent at its Fairway, Kansas, facility, but excluding office clerical employees, guards, and supervisors as defined in the Act. At all times material herein, the Union has been the exclusive bargaining representative of the employees Respondent denies the appropriateness of the overall unit. which, as al- leged in the complaint, includes the directors and production assistants em- ployed at its Fairway, Kansas, facility, for the same reason it denies the propriety of the certification herein. We find that this denial is without merit in light of the Board's finding in the underlying representation case that the directors and production assistants are employees. 324 MEREDITH CORPORATION in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act, and has maintained with Respondent a collective-bargaining agreement covering the employees therein, effective further from December 1, 1976, through November 30, 1979. (b) On December 5, 1978, a majority of the em- ployees of Respondent in the following unit or group of employees, in a secret-ballot election conducted under the supervision of the Regional Director for Region 17. designated the Union as their representa- tive for the purpose of collective bargaining with Re- spondent, and by so doing indicated a desire to be in, and were included in and became a part of, the ap- propriate unit designated in subparagraph (a) above: All directors and production assistants employed by Respondent at its Fairway, Kansas. facility, but excluding all office clerical employees, guards, and supervisors as defined in the Act. (c) On December 13, 1978, the Union was certified to bargain for the group of employees described in subparagraph (b) as part of the unit currently repre- sented by the Union described above in subpara- graph (a). (d) As a result of the election in Case 17-RC-8622, since December 5, 1978, the following employees con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by Respondent as newsman and announcers, including its free- lance newsmen and announcers, who perform as talent on radio or television programs produced by Respondent at its Fairway, Kansas, facility, including all directors and production assistants employed at said facility, but excluding office clerical employees, guards and supervisors as de- fined in the Act. (e) At all times since December 5, 1978, the Union has been, and is now, the exclusive bargaining repre- sentative of the employees in the overall unit de- scribed above in subparagraph (d) within the mean- ing of Section 9(a) of the Act, and since December 13, 1978, has been the certified exclusive representative of the directors and production assistants included within that unit. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 8, 1979, and at all times thereafter, the Union has requested, and continues to request, Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of the group of employees consisting of directors and production assistants. Commencing on or about January 8, 1979, 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 certified exclusive representative for col- lective bargaining of those employees. Accordingly, we find that Respondent has, since January 8, 1979, and at all times thereafter, refused to bargain collectively with the Union as the certified exclusive representative of the group of employees consisting of directors and production assistants, and as a result the employees in the overall 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 () of the Act. IV. 11E EFFIi('I ()F 11 tU:NI:AIR I.ABOR PRA('CTICES UPON ('()MMER('I The activities of Respondent set forth in section Ill, above, occuring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. rIlE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the certified exclusive representative of the group of em- ployees consisting of directors and production assis- tants, and, if an understanding is reached, embody such understanding in a signed agreement. To insure that these employees will be accorded the services of their selected bargaining agent for the pe- riod provided by law, we shall construe the initial period of certification as beginning on the date Re- spondent commences to bargain in good faith with the Union as their recognized bargaining representa- tive in the overall appropriate unit. See Mar-Jac Poul- try Company, Inc., 136 NLRB 785 (1962); Commerce Company d/h/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: 325 DECISIONS OF NATIONAl. LABOR RELATIONS BOARD CONCI.USIONS ()F LAW 1. Meredith Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Television & Radio Artists, Kansas City/Omaha Local, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent as free- lance artists to perform as talent on radio or television programs produced by Respondent at its Fairway, Kansas, facility, but excluding all office clerical em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the representative of the employees in the unit de- scribed above in paragraph 3 within the meaning of Section 9(a) of the Act, and the employees therein are currently covered by a collective-bargaining agree- ment between Respondent and the Union, which agreement is effective from December , 1976, through November 30, 1979. 5. On December 5, 1978, a majority of the direc- tors and production assistants employed at Respon- dent's Fairway, Kansas, facility, by secret-ballot elec- tion, designated the Union as their exclusive representative for purposes of collective bargaining, and thereby evinced a desire to become, and became, a part of the appropriate unit described above. On December 13, 1978, the Union was certified to repre- sent the directors and production assistants as part of the currently represented unit of employees described above in paragraph 3. 6. As a result of the election in Case 17-RC-8622, since December 5, 1978, all employees employed by Respondent as freelance artists to perform as talent on radio or television programs produced by Respon- dent at its Fairway, Kansas, facility, including all di- rectors and production assistants employed at said fa- cility, but excluding all office clerical employees, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 7. Since December 5, 1978, the Union has been and now is the exclusive representative of the employ- ees in the overall unit described above in paragraph 6 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, and since Decem- ber 13, 1978, has been and now is the certified exclu- sive representative of the directors and production as- sistants included within that unit. 8. By refusing on or about January 8, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of the directors and production assistants employed by Respondent in the aforesaid appropriate unit, and as a result the employees therein, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 9. 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 them in Sec- tion 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. 10. 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 Rela- tions Board hereby orders that the Respondent, Mer- edith Corporation, Fairway, Kansas, its officers, 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 con- ditions of employment with American Federation of Television & Radio Artists, Kansas City/Omaha Lo- cal, as the exclusive bargaining representative of its employees employed as directors and production as- sistants at its Fairway, Kansas, facility in the follow- ing appropriate unit: All employees employed by Respondent as newsmen and announcers, including its free- lance newsmen and announcers, who perform as talent on radio or television programs produced by Respondent at its Fairway, Kansas, facility, including all directors and production assistants employed at said facility, but excluding office clerical 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 the employees employed as directors and production assistants in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. 326 MEREDITH CORPORATION (b) Post at its Fairway, Kansas, facility copies of the attached notice marked "Appendix" 4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 17, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that this Order is enforced hy a Judgment ofa United States Court of Appeals, the words in the notice reading "Posted b Order of the National Labor Relations Board" shall read "Posted Pursuant to .I Judgment of the United States Court of Appeals Eniorcing an Order o the National Labor Relations Board." APPENDIX NorI(E To ENPI.PLoYUS PosII)D BY ORDER ()F l1IL NAIIONAI. LABOR RI.AlIO()NS BOARD An Agency of the United States Government Wi WIl. N refuse to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with American Federation of Television & Radio Art- ists, Kansas City/Omaha Local, as the exclusive representative of the employees employed by us as directors and production assistants in the bar- gaining unit described below. WE WIl.,. NO' 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 WILt., upon request. bargain with the above-named Union. as the exclusive representa- tive of all employees employed as directors and production assistants in the bargaining unit de- scribed below, with respect to rates of pa. wages. 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 employees employed by us as newsmen and announcers, including our free-lance newsmen and announcers. who perform as tal- ent on radio or television programs produced by us at our Fairway., Kansas. facility. includ- ing all directors and production assistants enm- ployed at said facility, but excluding office clerical employees. guards. and supervisors as defined in the Act. MNRII)III ()RI'P()RAIlit)N 327