WDAF FOX 4

328 NLRB No. 133 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. New World Communications of Kansas City d/b/a WDAF FOX 4 and American Federation of Television and Radio Artists, Kansas City Local, affiliated with American Federation of Televi- sion and Radio Artists (AFTRA), AFL–CIO. Case 17–CA–20145 JULY 8, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND BRAME Pursuant to a charge filed on May 10, 1999, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on May 11, 1999, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain following the Union’s certification in Case 17–RC–11675. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer and an amended answer, admitting in part and denying in part the allegations in the complaint. On June 11, 1999, the General Counsel filed a Motion for Summary Judgment. On June 16, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain but attacks the validity of the certification on the basis of the Board’s disposition of a determinative chal- lenged ballot in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, New World Communications of Kansas City d/b/a WDAF Fox 4, a corporation, with a facility in Kansas City, Missouri, is engaged in the op- eration of a television studio. During the 12 months pre- ceding the issuance of the complaint, the Respondent, in conducting its business operations, derived gross reve- nues in excess of $100,000, and purchased and received at its facility goods valued in excess of $50,000 directly from points outside the State of Missouri. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 7, 1999, the Union was certified on April 9, 1999, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time on-air personnel in- cluding anchors, anchor/reporters, and reporters em- ployed by the Employer (Respondent) at its facility lo- cated at 3030 Summit Street, Kansas City, Missouri, but EXCLUDING photographers/photographer-editors, office-clerical employees, guards and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since April 12, 1999, the Union has requested the Re- spondent to bargain and, since April 20, 1999, the Re- spondent has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 20, 1999, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, New World Communications of Kansas City d/b/a WDAF Fox 4, Kansas City, Missouri, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with American Federation of Television and Radio Artists, Kansas City Local, affili- ated with American Federation of Television and Radio Artists (AFTRA), AFL–CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time on-air personnel in- cluding anchors, anchor/reporters, and reporters em- ployed by the Employer (Respondent) at its facility lo- cated at 3030 Summit Street, Kansas City, Missouri, but EXCLUDING photographers/photographer-editors, office-clerical employees, guards and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Kansas City, Missouri, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 17 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- 1 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since April 20, 1999. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 8, 1999 John C. Truesdale, Chairman Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ adoption of the hearing offi- cer’s report recommending that the challenge to the de- terminative ballot of Amanda Jahn be overruled and that her ballot be opened and counted. Accordingly, I dissent here from my colleagues’ granting of the General Coun- sel’s Motion for Summary Judgment and their finding that the Respondent violated Section 8(a)(5) and (1) of the Act. Dated, Washington, D.C. July 8, 1999 J. Robert Brame III, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with American Federa- tion of Television and Radio Artists, Kansas City Local, affiliated with American Federation of Television and Radio Artists (AFTRA), AFL–CIO, as the exclusive rep- resentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WDAF FOX 4 3 WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time on-air personnel in- cluding anchors, anchor/reporters, and reporters em- ployed by us at our facility located at 3030 Summit Street, Kansas City, Missouri, but EXCLUDING photog- raphers/photographer-editors, office-clerical employ- ees, guards and supervisors as defined in the Act, and all other employees. NEW WORLD COMMUNICATIONS OF KANSAS CITY D/B/A WDAF FOX 4