KXEN, Inc.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD KXEN, Inc. and International Brotherhood of Electri- cal Workers, Local 4, AFL-CIO. , Case 14- CA-6745 August 1, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on March 15, 1972, by International Brotherhood of Electrical Workers, Local 4, AFL-CIO, herein called the Union, and duly served on KXEN, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a complaint on March 30, 1972, 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 a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 25, 1972, following a Board election in Case 14-RC-6856 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about February 9, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 25, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 15, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 17, 1972, 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 and a motion for reconsidera- tion in the "R" case. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the ' Official notice is taken of the record in the representation proceeding, Case 14-RC-6856, as the term "record" is defined in Secs 102 68 and 102.69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 F National Labor Relations Board has delegated its authority 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 response to the Notice To Show Cause, as in its answer to the complaint, Respondent contends that the certification of the Union, issued after an election conducted pursuant to a Stipulation for Certification Upon Consent Election, is invalid in that its objections to conduct affecting the results of the election should have been sustained and that it was denied due process by not having been accorded a hearing on its objections. The Respondent had alleged in its objections acts of threats, coercion, and interference, and misrepresentations which Respon- dent asserted warranted the direction of a new election. In his report on the objections, the Acting Regional Director recommended that they be over- ruled and that a certification issue. Respondent renewed its contentions in its exceptions filed with the Board to the Acting Regional Director's report and requested a hearing on its contentions. After full consideration, the Board, on January 25, 1972, issued its Decision and Certification of Representative denying the request for a hearing as the Respondent "presented insufficient evidence of a material issue of fact," adopting the Regional Director's recommen- dations, and certifying the Union. In addition, a motion for reconsideration was filed on June 13, 1972, requesting that the Board reconsider its Decision and Certification of Representative in Case 14-RC-6856 and that a hearing on Respondent's objections be directed. On June 23, 1972, the Board denied this motion because "it contains nothing not previously considered by the Board and presents insufficient evidence of a material issue of fact to cause the Board to reconsider its prior decision that a hearing in this matter is unwarranted." It is well settled that in the absence of newly discovered 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 the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 C A 7, 1968), Sec. 9(d) of the NLRA 2 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102.67(f) and 102 69(c) 198 NLRB No. 92 KXEN, INC. 629 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.3 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Missouri corporation, at all material times herein has maintained its principal office and place of business in Mitchell, Illinois. Respondent also maintains a business office in St. Louis, Missouri. Respondent is, and has been at all times material herein, engaged in the operation of a radio broadcasting station at its Mitchell, Illinois, facility. During the past calendar year, a period which is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $100,000 from sales of advertising, including in excess of $10,000 from firms located outside the State of Illinois. We find, on the basis of the foregoing, that Respondent 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. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 4, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. professional employees, guards, and supervisors as defined in the Act. 2. The certification On November 8, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 14 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on January 25, 1972, and the Union continues 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 February 1, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about February 9, 1972, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 9, 1972, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All engineers and announcer-operators, exclud- ing office clerical employees, salesmen, janitors, 3 Paragraph 9 of the complaint alleges that since on or about February 9, 1972, Respondent has refused to recognize and bargain with the Union Respondent's answer "[d ]enies the allegations of paragraph 9 except that Respondent admits that it does not accept" the Board's certification as "valid or binding upon it " Inasmuch as Respondent 's answer admits that 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, intimate, 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and the Union requested bargaining and as the Respondent is contesting the validity of the Union's certification , we treat Respondent's answer as not denying, and therefore admitting, that it has refused to honor the Union's request. Further, we note that the Respondent concedes that "it has now refused to bargain." 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is engaging in unfair labor practices within the meaning 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected 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; Commerce ^ Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. KXEN, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local 4, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All engineers and announcer-operators, ex- cluding office clerical employees, salesmen, janitors, professional 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 January 25, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 9, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 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. 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 Relations Board hereby orders that Respondent, KXEN, Inc., 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 conditions of employment with International Broth- erhood of Electrical Workers, Local 4, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All engineers and announcer-operators, exclud- ing office clerical employees, salesmen, janitors, professional 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 Mitchell, Illinois, place of business copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by 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 " KXEN, INC. 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 Inter- national Brotherhood of Electrical Workers, Local 4, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. 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 representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, 631 embody such understanding in a signed agree- ment. The bargaining unit is: All engineers and announcer-operators, ex- cluding office clerical employees , salesmen, janitors, professional employees, guards, and supervisors as defined in the Act. KXEN, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St . Louis, Missouri 63101 , Telephone 314-622-4167.