Midwest Television, Inc.

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Tenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith 33 It is further recommended that the complaint be dismissed in all other respects. In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees concerning their union membership or threaten them with loss of employment because they join a union or seek to be represented by a union. WE WILL NOT refuse to hire job applicants, discharge employees, or otherwise discriminate against employees because they join or seek to be represented by the Meat Cutters, Packinghouse and Allied Food Workers District Union 433, AFL-CIO, or any other labor organization. WE WILL OFFER Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne reinstatement to their former positions at the beginning of the 1963-64 season and will make them whole for any loss they may have suffered by reason of the discrimination against them. All our employees have the right to form, join, or assist any labor organization, or not to do so. SOUTHERN COTTON OIL CRUDE MILL, DIVISION OF HUNT FOODS AND IN- DUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 528 Peach- tree-Seventh Building, 50 Seventh Street NE., Atlanta 23, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Midwest Television, Inc. Station WMBD-AM-FM-TV and Ameri- can Federation of Television and Radio Artists, AFL-CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, Jointly. Case No. 13-CA-5418. October 8, 1963 DECISION AND ORDER On July 18, 1963, Trial Examiner John F. Funke issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- 144 NLRB No. 94. MIDWEST TELEVISION, INC. STATION WMBD-AM-FM-TV 973 mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as indicated below.2 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 1 Respondent's request for oral argument is denied, as in our opinion , the entire record, including the exceptions and briefs , adequately present the issues and the positions of the parties. 2 We do not agree with the Trial Examiner's observation that Respondent was deprived of an opportunity to present evidence in the representation case to establish that em- ployees Moylan, Peterson, Phillips, Richards, and Budd were included in the unit descrip- tion because they "regularly" appeared before microphone or camera, and therefore their challenged ballots should be opened and counted. During the course of the Regional Director's investigation of the challenges, Respondent was afforded ample opportunity to present evidence to sustain its contention but declined to do so. On the basis of his investigation, including the statement of employees concerning their duties with Respond- ent and the time they spent on the air during the relevant period, and all other relevant evidence available to him, the Regional Director concluded that the above- named in- dividuals were not eligible to vote and sustained the challenges to their ballots There was no substantial issue of fact presented to the Regional Director which required a hear- ing W@ are hard pressed to perceive the basis for the Trial Examiner's conclusion that the issue of eligibility was not fully litigated simply because the Respondent chose not to participate in the resolution of that issue. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed February 13, 1963, an amended charge filed March 22, 1963, and a second amended charge filed June 24, 1963, against Midwest Television, Inc., Station WMBD-AM-FM-TV, herein called the Respondent or Midwest, by Ameri- can Federation of Television and Radio Artists, AFL-CIO, herein called AFTRA, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO herein called IBEW, Local 1292,1 the General Counsel issued a complaint dated March 29, 1963, alleging Respondent refused to bargain in good faith with AFTRA and IBEW, Local 1292, in violation of Section 8 (a) (1) and (5) of the Act. 'The name of the International Brotherhood of Electrical Workers appears as amended. Upon stipulation of the parties the hearing was reopened on June 24. 1963, and by Order of the Trial Examiner of that date a corrected certification of representatives was received in evidence as General Counsel's Exhibit No . 2, it second amended charge as General Counsel's Exhibit No. 1(m), and the complaint, notice of hearing and answer were amended by adding the words "Local 1292" after the words "International Brotherhood of Electrical Workers" and all references to "International Brotherhood of Electrical Workers" in these proceedings were amended accordingly 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The answer of the Respondent denies the Respondent refused to bargain in good faith and asserts in substance that the votes of five employees, sufficient to have affected the results of the election, should have been counted or that a hearing should have been held to determine the eligibility of said employees. This proceeding, with all parties represented, was heard before Trial Examiner John F. Funke at Peoria, Illinois, on June 3, 1963, reopened on June 24, 1963, and closed by Order of the Trial Examiner on that date .2 A brief was received from the Respondent on July 15. Upon the entire record in this case and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation, affiliated with the Columbia Broadcasting System, having its office and principal place of ,business at Peoria, Illinois. It owns, and operates television and radio stations at Champaign and Peoria, Illinois. During the calendar year 1962 it had a gross income in excess of $100,000 and during said year it sold services to customers outside the State of Illinois valued in excess of $50,000. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS INVOLVED AFTRA and IBEW, Local 1292, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The certification proceedings On November 17, 1961, AFTRA and IBEW, Local 1292, filed a joint amended petition with the National Labor Relations Board asking for an election among the Respondent's employees in a unit described therein. (Case No. 13-RC-8194.3) On November 20, 1961, the parties entered into a Stipulation for Certification Upon Consent Election to be conducted on December 4, 1961, under the supervision of the Regional Director for the Thirteenth Region, in a unit described as follows: All persons employed by the Company at its broadcasting facilities known as Station WMBD-AM-FM-TV located in and around Peoria, Illinois, who appear in any manner on a regular basis in services before the microphone or camera including but not limited to those who speak, act, sing or in any other manner perform as talent as such terms is [sic] used and understood in the broadcasting- industry. This also applies to all persons rendering services in the field of news, who, appear before a microphone or camera on a regular basis, but excluding office clerical employees, instrumental musicians performing as such, technicians, guards, professional employees and supervisors as defined in the Act, and all other employees. The results of the election as shown by the tally of ballots were as follows: Approximate number of eligible voters--------------------------- 29' Void ballots-------------------------------------------------- 0, Votes cast for Union------------------------------------------ 11 Votes cast against participating labor organization---------------- 2 Valid votes counted------------------------------------------ 13 Challenged ballots-------------------------------------------- 16 Valid votes counted plus challenged ballots----------------------- Challenges are sufficient in number to affect the results of the election. 29 Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, the Regional Director conducted an investigation of the challenged ballots. Of the 16 challenges, 11 were challenged by the Petitioner on the ground that they were not in the unit, 4 were challenged by the Petitioner on the ground that they were 2 All rulings on which decision was reserved at the hearing , including the General Counsel's motion to strike certain defenses asserted In the answer as Insufficient in law, are disposed of In accordance with the recommendations herein 81n the proceedings in Case No. 13-RC-8194 (not published in NLRB volumes), AFTRA and IBEWW, Local 1292 , are referred to as the Petitioner. MIDWEST TELEVISION, INC. STATION WMBD-AM-FM-TV 975 supervisors within the meaning of Section 2(11) and I was challenged by the Board agent conducting the election on the ground his name did not appear on the eligibility list. In his report on challenges,4 dated January 19, 1962, the Regional Director Tecommended that eight of the challenges be sustained and that, since the eight remain- ing challenges 5 were not sufficient to affect the results of the election, that a certifica- tion of representation issue on behalf of the Petitioner. Respondent filed timely exceptions to the report and on June 20, 1962, the Board issued a Decision and Direction in which it overruled the Regional Director as to two of the challenges which he had found should be sustained and sustained his ruling as to three challenges which he recommended overruling. The Decision and Direction directed the Regional Director to open and count these five ballots and issue a supple- mental tally of ballots and further directed that if the Petitioner did not receive a majority of the votes cast, including the five unresolved challenges, the Regional Director investigate those challenges. On June 27, 1962, the Regional Director issued a revised tally of ballots as a final tally: Votes cast for Union---------------------------------------------- 11 Votes cast against participating labor organization(s) ----------------- - 177 Valid votes counted_______________________________________________ Unopened challenged ballots________________________________________ 5 Following the issuance of the revised tally the Respondent moved to reopen certain findings and for a heanng.6 Respondent's motion was directed to the five challenges which had been sustained by the Regional Director and the Board. On July 27, the Board issued its order denying Respondent's motion, stating that the matters alleged in the motion were insufficient to warrant a finding "that prior to the commencement of the economic strike, Moylan, Peterson, Phillips, Richards, and Budd 7 appeared in any manner on a regular basis in services before the microphone or camera as would be required for inclusion in the unit under the parties' stipulated unit description." On October 17, 1962, the parties entered into a stipulation requesting that the challenges to the five ballots as to which no determination had been made (Cole- man, McMullen, Mason, Rex, and Harris) be opened and counted. On October 22, 1962, the Regional Director adopted the stipulation as his report and recommended to the Board that "these five remaining challenges be opened and counted forthwith and that an amended tally of ballots issue." On October 24 the Board issued an Order directing Regional Director to open and count challenged ballots and on -October 31 the Regional Director issued a second revised tally of ballots as follows: Votes cast for Petitioner___________________________________________ 12 Votes cast against participating labor organization(s) ------------------- 11 Valid votes counted_______________________________________________ 23 Unopened challenged ballots________________________________________ 0 A majority of the valid votes as shown in the final tally has been cast for PETITIONER. On November 7, 1962, the Board certified that American Federation of Television -and Radio Artists, AFL-CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, jointly, had been designated and selected by a majority of the employees in the unit described above as their representative for the purposes of collective bargaining. 2. The refusal to bargain Respondent admits that the unit stipulated by the parties in Case No. 13-RC-8194 is an appropriate unit and admits the allegations of paragraphs VII(a) and (b) and VIII(a) and (b) of the complaint alleging in substance that the Unions have requested 4 The Regional Director's report on challenges states reasonable notice was given to the :parties to present relevant evidence and that the Regional Director reviewed all statements made by witnesses and carefully considered all other evidence submitted by the parties. 5 No investigation was made as to five challenges and as to three challenges which the Regional Director found should be overruled, no recommendation was made that these be opened and counted. 0 Paragraph 5 of Respondents' motion states, in its concluding sentence: "The Board and all persons involved are entitled to the full inquiry provided by a hearing, including cross-examination, to avoid such an error." 'These were the five employees whose challenges had been sustained by the Regional ;Director and, on appeal, by the Board. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent to bargain commencing on or about January 18 and on February 5, 1963, and have requested the Respondent to meet and negotiate a contract on those dates and that the Respondent has refused to bargain with the Unions and has refused to meet and negotiate a contract with the Unions. The Respondent's refusal is based on its contention that the challenged ballots of five employees, sufficient to affect the results in the election in Case No. 13-RC-8194, should have been counted or that a hearing should have been held to determine the eligibility of these employees to vote in said election." B. Conclusions The election in this case was held by consent of the parties 9 pursuant to Section 102.62(b) of the Board's Rules and Regulations, Series 8, providing: (b) Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of the employees in- volved may, with the approval of the regional director, enter into an agree- ment providing for a waiver of hearing and a consent election leading to a determination by the Board of the facts ascertained after such consent election, if such determination is necessary ... . Section 102.69(e) of said Rules and Regulations, provides, so far as pertinent herein: (e) In a case involving a consent election held pursuant to Section 102.67(b), if exceptions are filed, either to the report on challenged ballots or the objec- tions, or both if it is a consolidated report, and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record, or may make other disposition of the case. If it appears to the Board that such exceptions raise material and factual issues, the Board may direct the regional director or other agent of the Board to issue and cause to be served upon the parties a notice of hearing on said exceptions before a hearing officer. The postelection procedures were conducted in accordance with the foregoing Rules and Regulations. The crux of Respondent's objections lies in that part of paragraph 5 of the Board's Decision and Direction, dated June 20, 1962, where the Board, adopting in part the Regional Director's report based on an ex parte investigation, found: 5. . . . We adopt the Regional Director's recommendation to sustain the challenges to the ballots of Moylan, Peterson, Phillips, Richards and Budd. The Regional Director's finding is uncontroverted that these 5 employees were al- ready regularly employed in other capacities for the Employer outside the unit prior to the strike and during the strike performed some of the struck work in addition to performing their regular duties. - The Respondent, in a persuasive brief, asks the Trial Examiner to find that the Board's finding was in error. The Board's Rules and Regulations pursuant to which the above finding was made provide that it shall decide whether the exceptions to a Regional Director's report raise substantial and material factual issues sufficient to warrant a hearing. No Trial Examiner is authorized to find the Board in error in the exercise of its discretion nor will he, with impunity, find it in error otherwise, however palpable that error may be.1e It may require a certain juridical savoir faire blandly to pronounce that the factual issues involved herein have been fully 8 At the hearing the Respondent offered to prove by the testimony of witnesses that the five employees as to whom challenges were sustained, Milton Budd, Dee Richards, William Moylan, Lloyd Peterson, and David Phillips, were employed within the appropriate unit in a nonsupervisory capacity during the elegibility period and were eligible to vote in the election. This offer of proof was rejected by the Trial Examiner. See Trancoa Chemical Corporation, 133 NLRB 791, 795. 9 The Board's stipulation for Certification upon Consent Election provides, paragraph 6: POST-ELECTION AND RUN-OFF PROCEpnRE.-All procedure subsequent to the conclu- sion of the counting of the ballots shall be In conformity with the Board's Rules and Regulations. 10 In Insurance Agents' International Union (Prudential Insurance Company), 119 NLRB 768, the Board reprimanded Trial Examiner Whittemore for following court rather than Board precedent. The Board's Order reversing the Trial Examiner was set aside in Insurance Agents'. International Union v. N.L.R.B., 260 F.,2d 736, affd. 361 U.S. 477. MIDWEST TELEVISION, INC. STATION WMBD-AM-FM-TV 977 litigated in the representation proceeding when no hearing was held, no transcript was made and no right of confrontation and cross-examination was granted. In- evitably there are instances where due process suffers some loss from administrative legerdemain . Respondent's remedy, if one exists, lies with the courts 11 for a Trial Examiner, however sympathetic to the requirements of due process, is under the foreclosure.12 IV. THE REMEDY Having found that the Respondent engaged in and is engaging in certain unfair labor practices, I shall recommend that they be ordered to cease and desist from the same and take certain affirmative action in order to effectuate the purposes of the Act. Upon the basis of the foregoing findings and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. AFTRA and IBEW, Local 1292, are labor organizations within the meaning of Section 2(5) of the Act. 3. By refusing to bargain collectively with AFTRA and IBEW, Local 1292, as the exclusive bargaining representative of the employees in the unit found appropri- ate herein concerning rates of pay, wages, hours of employment, and others terms and conditions of employment, Respondent has violated Section 8(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in this case it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain in good faith with American Federa- tion of Television and Radio Artists, AFL-CIO and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, jointly, as the exclusive representative of its employees in the unit found appropriate herein concerning rates of pay, wages, hours of employment and other terms and conditions of employment. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with American Federation of Television and Radio Artists, AFL-CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, jointly, as the exclusive bargaining representative of its employees in the unit found appropriate herein and, if an understanding is reached, embody such understanding in a written agreement. (b) Post at its offices at Peoria, Illinois, copies of the attached notice marked "Appendix." 13 Copies of said notice to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof in con- spicuous places, including all places where notices to employees are customarily posted, and maintained for 60 consecutive days. Reasonable steps shall be taken to • see that said notices are not altered, defaced, or covered by other material. 11 See N L R B v. Joclin Manufacturing Company, 314 F 2d 627 (C A 2) ; N L R B. v Joseph Sidran d/b/a Sidran Sportswear, 181 F. 2d 671 (CA. 5) ; N.L.R.B. v. West Texas Utilities Company, 214 F. 2d 732 (C.A. 5). Cf. N L R B. v. Saxe-Glassman Shoe Corpora'- tion, 201 F. 2d 238 (C.A. 1) ; N.L.R.B. v. The Standard Transformer Company, 202 F. 2d 846 (C.A 6) ; N L R.B. v Carlton Wood Products, 201 F. 2d 863 (C A 9) ; N L.R.B. v. Huntsville Manufacturing Company, 203 F. 2d 430 (C.A 5) 12 0 K. Van and Storage, Inc., 127 NLRB 1537; Anchor Manufacturing Company, 131 NLRB 140; Traneoa Chemical Corporation, 133 NLRB 791; Ideal Laundry and Dry Cleaning Co., 140 NLRB 1412; International Ladies' Garment Workers' Union, AFI CIO, 142 NLRB 353; J R Simplot Company, 138 NLRB 172 is In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." -978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify said Regional Director in writing within 20 days from the receipt of this Intermediate Report what steps Respondent has taken to comply herewith-14 14 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with American Federation of Television and Radio Artists, AFL-CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, jointly as the exclusive bargaining representative of our employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if understanding is reached, we will enter into a signed agreement of such understanding for a reasonable time. The appropriate unit is: All persons employed by the Company at its broadcasting facilities known as Station WMBD-AM-FM-TV located in and around Peoria, Illinois, who appear in any manner on a regular basis in services before the microphone or camera including but not limited to those who speak, act, sing, or in any other manner perform as talent as such terms is [sic] used and understood in the broadcasting industry. This also applies to all persons rendering services in the field of news, who appear before a microphone or camera on a regular basis, but ex- cluding clerical employees, instrumental musicians performing as such, technicians, guards, professional employees, and supervisors as defined in the Act, and all other employees. MIDWEST TELEVISION, INC. STATION WMBD-AM-FM-TV, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Southern California District Council of Hod Carriers and Labor- ers and Gunite Workers Local No. 345 and Its Representative, Mr. Frank Saver, Sec.-Treas. [Swimming Pool Gunite Con- tractors Group and all of its Members] and Golding and Jones, Inc., for the Association and All Its Members . Cases Nos. 21- CB-1938 and 21-CC-541. October 8, 1963 DECISION AND ORDER On February 25, 1963, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached 144 NLRB No. 93.