Westinghouse Broadcasting Co., Inc.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westinghouse Broadcasting Company, Inc. (WBZ- TV) and Directors Guild of America, Inc. Case 1-CA-10486 September 15, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 6, 1975, by Direc- tors Guild of America, Inc., herein called the Union, and duly served on Westinghouse Broadcasting Company, Inc. (WBZ-TV), herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Acting Regional Direc- tor for Region 1, issued a complaint and notice of hearing on April 4, 1975, against Respondent, alleg- ing that Respondent had engaged in and was engag- ing 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on January 13; 1975, following a Board election in Case 1-RC-13147, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about March 3, 1975, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 17, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed in its entirety. On May 12, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, submitting, in ef- fect, that the Respondent, in its answer, is attempting to relitigate issues considered and decided by the Board in the prior representation proceeding, Case I-RC-13147, and praying the Board to grant the 'Official notice is taken of the record in the representation proceeding, Case 1 -RC-13147, 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 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D C Va , 1967), Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A. 7, 1968); Sec 9(d) of the NLRA Motion for Summary Judgment. Subsequently, on May 19, 1975, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to 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, the Respondent, in substance, attacks the appropriateness and scope of the unit and, consequently, the validity of the certifi- cation of the Union as the exclusive bargaining rep- resentative of the employees in the appropriate unit. By this assertion, and more specifically by its denials, in whole or in part, of the allegations in the com- plaint,' the Respondent is attempting to relitigate the same issues which it raised and litigated in the prior representation proceeding. The record of the prior representation proceeding, Case 1-RC-13147, which is before us, shows that, following 6 days of hear- ings I before a Hearing Officer of the Board in the above-mentioned representation proceeding, the Board, on November 26, 1974, issued its Decision and Direction of Elections,4 in which the Board con- cluded that producer/directors were not supervisors or managerial employees and directed an election in a bargaining unit consisting of all staff and freelance producer/directors, all associate directors, and all as- sistant directors at television station WBZ-TV. The Board rejected the Respondent's contention that the proposed unit was inappropriate for collective-bar- gaining purposes because all employees to be includ- ed therein were supervisors and/or managerial em- ployees. Subsequently, the Respondent filed a motion for reconsideration submitting that the unit found by the Board was inappropriate and request- 2 By its answer. Respondent denies paragraph I I of the complaint which alleges that the Union has requested the Respondent to bargain, and denies paragraph 12 of the complaint which alleges that Respondent refused to bargain . Attached to the General Counsel's Motion for Summary Judgment are letters dated February 11, 1975, and March 3, 1975, respectively, the former a request made by the Union to the Respondent for bargaining, and the latter Respondent's refusal. In its response to the Notice to Show Cause, the Respondent neither alludes to nor seeks to controvert the contents or the receipt of the letters attached to the General Counsel 's motion Accordingly, we shall deem the allegations in pars II and 12 of the complaint to be admitted . Schwartz Brothers, Inc., 194 NLRB 150 (1971); The May Depart- ment Stores Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc., 161 NLRB 1389 (1966). 7 The hearing was conducted on March 6 through 8 and 26 through 28, 1974. 4215 NLRB No. 26, consolidated Cases I-RC-13147 and 5-RC-8865. 220 NLRB No. 55 WESTINGHOUSE BROADCASTING COMPANY ing the Board to reconsider its Decision and Direc- tion of Elections. On December 27, 1974, the Board issued an Order Denying Motion for Reconsidera- tion, as lacking in merit. In the election held on De- cember 31, 1974, a majority of the valid ballots were cast for the Union. Thereafter, the Respondent filed an objection to the election,' alleging that the elec- tion was conducted in a unit comprising both profes- sional and nonprofessional employees without af- fording the professionals an opportunity to vote for inclusion or exclusion from such a unit. On January 13, 1975, the Regional Director issued a Supplemen- tal Decision on Objections and Certification of Rep- resentative in which he overruled the Respondent's objection on the ground that the objection raised no issue as to the conduct of the election, but rather reiterated the Respondent's prior Motion for Recon- sideration, which had been denied by the Board. Ac- cordingly, the Union was certified as the collective- bargaining representative of the employees in the ap- propriate unit. Subsequently, the Respondent filed exceptions to the Regional Director's supplemental decision and a brief. On February 11, 1975, the Board denied the Respondent's Request for Review of the Regional Director's Supplemental Decision on Objections and Certification of Representative on the ground that it raised no substantial issues war- ranting review. In its response to the Notice to Show Cause 6 the Respondent argues that the Board in its Decision and Direction of Elections, 215 NLRB No. 26, Case 1-RC-13147, only "briefly consider[ed]" the mana- gerial position of producer/directors and that it should have paid particular attention to the guiding principles set forth by the United States Supreme Court in Bell Aerospace Company.' This argument is without merit. After having concluded that produc- er/directors were not supervisory, the Board stated that it must "briefly consider" the Respondent's al- ternative contention that they are managerial em- ployees and as such must be excluded from a Board- representation election.' After setting forth the Respondent's allegations concerning the activities of producer/directors, which the Board did not dispute, the Board noted that none of the activities, however, indicated managerial status within the meaning of the Act, unless they involved the exercise of discre- tion independent of a superior's approval or the Respondent's established policy? The Board found ' The Respondent's objection pertained only to the election at the WBZ- TV facility, Case I-RC-13147. 6 Respondent has requested oral argument . This request is hereby denied as the record adequately presents the issues and positions of the parties 7 N L.R. B. v. Bell Aerospace Company, Division of Textron, Inc, 416 U.S. 267 (1974). 8 Citing in In. 10, Bell Aerospace Company, supra. 321 that, although producer/directors may exercise con- siderable discretion in executing their assignments, such discretion could not exceed the bounds of poli- cy determined by others. Accordingly, the Board concluded that producer/directors were not manage- rial. 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 reliti- gate issues which were or could have been litigated in a prior representation proceeding.1° All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, ' nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and ex- isting by virtue of the laws of the State of Indiana. At all times material herein, Respondent has maintained its principal office and place of business in the city of New York, and State of New York, and is now and continuously has been engaged in the operation of a television station (WBZ-TV) at its 1170 Soldier's Field Road, Boston, Massachusetts, location. Re- spondent in the course and conduct of its business causes, and continuously has caused at all times ma- terial herein, broadcast programming consisting of a mixture of network, syndicated, and locally pro- duced programs, to be aired to the public approxi- mately 18 to 21 hours daily, such programming being aired outside of the Commonwealth of Massachu- setts as well as within the Commonwealth of Massa- chusetts. Respondent has annual gross sales in excess of $100,000 and annually receives, in interstate com- 9 Citing in In. 12, General Dynamics Corporation, Convair Aerospace Divi- sion, San Diego Operations, 213 NLRB 851 (1974), in which the Board in In 20, thereof, cited Bell Aerospace Company, supra, for current judicial approv- al of the definition of managerial employees 10 See Pittsburgh Plate Glass Co v NLRB, 313 U.S 146, 162 (1941), Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c) 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merce, income in excess of $50,000 derived from the advertising of national brand products and/or re- gional brand products. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Directors Guild of America, Inc., is a labor organi- zation 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All staff and freelance producer/directors, all associate directors, and all assistant directors of Respondent employed at its Boston, Massachu- setts, television station, but exclusive of all other employees, guards and supervisors as defined in the Act. 2. The certification On December 31, 1974, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion 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 January 13, 1975, 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 11, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 3, 1975, and continuing at all times thereafter to date , the Respondent has refused, and continues to refuse , to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. • Accordingly, we find that the Respondent has, since March 3, 1975, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, 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 commerce. V. THE 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 (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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 ( 1964), enfd . 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Westinghouse Broadcasting Company, Inc. (WBZ-TV), is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Directors Guild of America, Inc., is a labor or- ganization within the meaning of Section 2(5) of the Act. WESTINGHOUSE BROADCASTING COMPANY 3. All staff and freelance producer/directors, all associate directors, and all assistant directors of Re- spondent employed at its Boston, Massachusetts, television station, but exclusive of all other employ- ees, 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. Since January 13, 1975, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 3, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing 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 Re- lations Board hereby orders that Respondent West- inghouse Broadcasting Company (WBZ-TV), Bos- ton, 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 con- ditions of employment with Directors Guild of America, Inc., as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All staff and freelance producer/directors, all associate directors, and all assistant directors of Respondent employed at its Boston, Massachu- setts, television station, but exclusive of all other employees, guards, and supervisors as defined in the Act. 323 (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 Boston, Massachusetts, television station, copies of the attached notice marked "Ap- pendix." 11 Copies of said notice, on forms provided by the Regional Director for Region 1, 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, de- faced, 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. ii 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 Baord" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 Di- rectors Guild of America, Inc., as the exclusive representative of the employees in the bargain- ing 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, and, if an understanding is tors of Respondent employed at its Boston, reached, embody such understanding in a signed Massachusetts, television station, but exclu- agreement. The bargaining unit is : sive of all other employees, guards, and super- visors as defined in the Act. All staff and freelance producer/directors, all associate directors, and all assistant direc- WESTINGHOUSE BROADCASTING COMPANY, INC. (WBZ-TV)