Lorimar Productions, Inc.

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lorimar Productions, Inc. and Production Office Coordinators and Accountants Guild Local 717, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada. Cases 31- CA-12685 and 31-RC-4957 15 April 1986 ORDER REMANDING AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 21 April 1984 the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,' in which it found that by re- fusing to bargain with the Union, certified in Case 31-RC-4957, on 12 November 1981, the Respond- ent has engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act. The Board ordered the Respondent to cease and desist from its unlawful conduct and to recog- nize and bargain with the Union. Subsequently, the General Counsel filed with the United States Court of Appeals for the Ninth Circuit an application for enforcement of the Board's Order. The Respondent filed a cross-petition for review. In an opinion dated 17 September 1985,2 the court denied enforcement of the Board's order and remanded the case to the Board for the purpose of conducting a new representation election. Thereaf- ter, the Respondent filed a statement of position with the Board. In the underlying representation proceeding, the Regional Director had directed an election in a unit of estimators and production coordinators. The Respondent contended that both groups of employees were confidential employees and hence ineligible to be included in a bargaining unit. The Respondent filed a request for review of the Re- gional Director's decision. On 26 February 1981 a secret-ballot election was conducted and, pursuant to Section 102.67 of the Board's Rules and Regula- tions, the ballots were impounded and segregated pending the Board's decision on the request for review. On 1 September 1981 the Board issued a Decision on Review in which the production coor- dinators were excluded from the appropriate bar- gaining unit.3 Thereafter, the remaining ballots were opened and counted and a tally of ballots issued showing the Union won the election six to four, with one challenged ballot. The Respondent 270 NLRB 18 (1984) s 771 F 2d 1294 257 NLRB 1138 (1981) filed timely objections to conduct affecting the re- sults of the election, alleging that the employees should not have been required to vote while the Board's Decision on Review was pending on the issue of whether the production coordinators should be included in the unit, because they voted under the impression, ultimately proved false, that the unit would include both production coordina- tors and estimators. The Respondent also reiterated its contention that the estimators were confidential employees. On 12 November 1981, following an investiga- tion of the Respondent's objections, the Regional Director issued a Supplemental Decision and Certi- fication of Representative in which he overruled the Respondent's objections and certified the Union as the exclusive collective-bargaining representative for employees in the following unit: All estimators of the Employer employed at its facilities located at 10202 Washington Boule- vard, Culver City, California, and at 4000 Warner Boulevard, Burbank, California; ex- cluding all other employees, production coor- dinators, professional employees, office clerical employees, confidential employees, managerial employees, guards and supervisors as defined in the Act. On 19 February 1982 the Board denied the Re- spondent's request for review of the Regional Di- rector's Supplemental Decision and Certification of Representative. The Respondent refused to bargain with the Union on the basis of the arguments it had made in its objections to the conduct of the elec- tion in the representation case. As mentioned above, the Board thereafter found that the Re- spondent's refusal to bargain with the Union violat- ed Section 8(a)(5) and (1) of the Act. In refusing to enforce the Board's bargaining order, the court of appeals found that the proce- dure followed by the Board significantly impaired the conduct of the election by misleading the voters as to the scope of the unit, an issue which the court found essential to the voter's ability to cast an intelligent, voluntary vote.4 It remanded this case to the Board for the purpose of conduct- ing a new representation election. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board, having accepted the remand, respect- fully recognizes the court's opinion as the law of this case. Accordingly, pursuant to the court's di- 4 The court, however, affirmed the Board's decision that the ester are not confidential employees 279 NLRB No. 36 LORIMAR PRODUCTIONS rection, we shall remand the proceeding to the Re- gional Director for the purpose of conducting a second election.5 IT IS ORDERED that the Board 's previous Deci- sion and Order reported at 270 NLRB 18 ( 1984) is rescinded. IT IS FURTHER ORDERED that Case 31 -RC-4957 be reopened and that the certification issued in that 5 In its statement of position, the Respondent requests the Board to dis- miss the case without conducting a representation election We deny this request in light of accepting the court's remand The Respondent also re- quests a hearing on whether the Union should be disqualified as a collec- tive-bargaining representative because of a possible conflict of interest This issue was not raised in the underlying representation proceeding and is not within the scope of the court's remand Accordingly, we find a hearing is not warranted 301 case on 12 November 1981, to Production Office Coordinators and Accountants Guild Local 717, International Alliance of Theatrical Stage Employ- ees and Moving Picture Operators of the United States and Canada, as exclusive collective -bargain- ing representative of the Respondent's employees in the unit found appropriate is vacated. IT IS FURTHER ORDERED that Case 31-RC-4957 is remanded to the Regional Director for Region 31 for the purpose of conducting a second election at such time as the Regional Director deems appro- priate [Direction of Second Election omitted for publi- cation.]