Charles River Broadcasting Co.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles River Broadcasting Company and Local 1228, International Brotherhood of Electrical Workers, AFL-CIO-CLC. Case 1-CA-8577 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on September 15, 1972, by Local 1228, International Brotherhood of Electrical Workers, AFL-CIO-CLC, herein called the Union, and duly served on Charles River Broadcasting Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 4, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 3, 1972, following a Board election in Case 1-RC-11915, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 1 and that, commencing on or about August 30, 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 October 12, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 3, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 10, 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. On November 29, 1972, Respondent filed a reply to Notice To Show Cause.2 Pursuant to the provisions of Section 3(b) of the i Official notice is taken of the record in the representation proceeding, Case I-RC-11915, 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 Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d National Labor Relations Act, as amended, the 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 answer to the complaint and in its Reply to Motion for Summary Judgment Respondent denies that it unlawfully refused to bargain and contends that the Regional Director and the Board erred in overruling Respondent's objections to the election in the underlying representation case . Respondent further contends that it is entitled to a hearing on such matters and seeks to adduce additional evidence. We do not agree. The record in the underlying representation pro- ceeding, 1-RC-11915, indicates that a formal hear- ing was held in Boston, Massachusetts, on February 2, 1972, to determine the appropriate unit and such other representation issues that might be raised. Thereafter, on March 7, 1972, the Regional Director issued his Decision and Direction of Election and defined the appropriate unit and determined, inter alia, that Kevin Mostyn was an employee and not a supervisor. On March 31, 1972, the Board denied Respondent's Request for Review of Decision but permitted Mostyn to vote a challenged ballot. An election was conducted on April 5, 1972, at which a majority of employees selected Local 1228, IBEW as their representative. On April 12, 1972, Respondent filed timely objections to conduct affecting the election, alleging, inter alia, that the Board agent's ruling that a ballot was void was improper and that the Regional Director's decision holding that Mostyn was not a supervisor was in error. On May 17, 1972, the Regional Director issued a Supplemental Deci- sion on Objections and Challenged Ballots overrul- ing Respondent's objections in their entirety. On July 7, 1972, the Board denied Respondent's request for review of the Regional Director's Supplemental Decision on Objections and Challenged Ballots and concluded that it raised no substantial issues war- ranting review. On July 17, 1972, Respondent filed a Motion To Reopen the Record for Receipt of New Evidence and To Reconsider the Status of the Chief Engineer. In such motion, Respondent contended that amended rules and regulations of the Federal Communications Commission effective July 14, 1972, affected the position of chief engineer and 91 (C A 7, 1968), Sec 9(d) of the NLRA 2 On November 13, 1972, Respondent requested oral argument in opposition to the Motion for Summary Judgment. Such request is denied as the motion and Respondent's reply adequately present the positions of the parties 1 202 NLRB No. 75 CHARLES RIVER BROADCASTING CO. requested reconsideration of the status of Mostyn, the chief engineer. By telegram dated August 20, 1972, the Board denied the motion for reconsidera- tion as lacking in merit. In its reply to the General Counsel's Motion for Summary Judgment, Respondent again raises the issue of the void ballot and the supervisory status of Mostyn and requests a hearing. Both the ballot issue and Mostyn's supervisory status were previously decided adversely to the Respondent by the Board on two occasions. 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.3 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 discovered or previously unavailable evidence, nor do we find 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. 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 The Respondent is a Massachusetts corporation with its principal office and place of business at 750 South Street, Waltham, Massachusetts, and is en- gaged in the operation of a radio broadcasting station. During the past year, Respondent derived a gross income in excess of $100,000, held membership in and subscribed to Interstate News Services, and in the course and conduct of its business purchased large quantities of radio equipment, supplies, and other items which were transported in interstate commerce. 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 535 Local 1228, International Brotherhood of Electri- cal Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 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, announcers, salesmen-announc- ers, combo personnel and the music director of the Employer at its Waltham, Massachusetts area studios and transmitters, but excluding all other employees, salesmen, office clerical employees, professional employees, guards and supervisors, as defined in the Act. 2. The certification On April 5, 1972, 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 1 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 August 3, 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 August 4, 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 August 30, 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 August 30, 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- 3 See Pittsburgh Plate G l a s s Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 The activities of the Respondent, set forth in section III, above, occurring in connection with its operations 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 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 commences 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. Charles River Broadcasting Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1228, International Brotherhood of Electrical Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All engineers, announcers, salesmen-announc- ers, combo personnel and the music director of Respondent employed at its Waltham, Massachu- setts area studios and transmitters, but excluding all other employees, salesmen, office clerical employees, 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 August 3, 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 August 30, 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, Charles River Broadcasting Company, Waltham, Massachusetts, 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 Local 1228, Interna- tional Brotherhood of Electrical Workers, AFL-CIO-CLC, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All engineers, announcers, salesmen-announc- ers, combo personnel and the music director of the Employer at its Waltham, Massachusetts area studios and transmitters, but excluding all other employees, salesmen, office clerical employees, 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' CHARLES RIVER BROADCASTING CO. 537 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 principal office at 750 South Street, Waltham, Massachusetts, and at appropriate places at its area studios and transmitters copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1 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 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 " APPENDIX sentative 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, embody such understanding in a signed agree- ment. The bargaining unit is: All -engineers, announcers, salesmen-an- nouncers, combo personnel and the music director of the Employer at its Waltham, Massachusetts area studios and transmitters, but excluding all other employees, salesmen, office clerical employees, professional em- ployees, guards and supervisors, as defined in the Act. CHARLES RIVER BROADCASTING COMPANY (Employer) Dated By (Representative) (Title) 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 Local 1228, International Brotherhood of Electrical Workers, AFL-CIO-CLC, as the exclusive repre- 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, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300.