Gaylord Broadcasting Co.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1357 (N.L.R.B. 1980)

GAYLORD BROADCASTING CO.
Gaylord Broadcasting Company, Owners and Opera-
tors of WVUE-TV and General Truck Drivers,
Chauffeurs, Warehousemen & Helpers Local
270, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, Ind. Case 15-CA-7670
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on April 25, 1980, by Gen-
eral Truck Drivers, Chauffeurs, Warehousemen &
Helpers Local 270, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Ind., herein called the Union, and
duly served on Gaylord Broadcasting Company,
Owners and Operators of WVUE-TV, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 15, issued a complaint on May 6,
1980, 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 and complaint and notice of
hearing before an administrative 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 April 7,
1980, following a Board election in Case 15-RC-
6593, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 17, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On May 15, 1980, Respond-
ent 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 30, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 6, 1980, the
Board issued an order transferring the proceeding
I Official notice is taken of the record in the representation proceed-
ing, Case 15-RC-6593 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 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.CVa. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 167
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent did not
file a response to Notice To Show Cause, and
therefore the allegations in the Motion for Sum-
mary Judgment stand uncontroverted.
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, Respondent, in
substance, denies the validity of the Union's certifi-
cation based on its contention that the Union was
at no time the duly designated exclusive bargaining
representative of an appropriate unit of employees.
The General Counsel argues that all material issues
have been previously decided. We agree with the
General Counsel.
A review of the record herein, including the
record in Case 15-RC-6593, indicates that the Re-
gional Director's Decision and Direction of Elec-
tion issued on February 29, 1980, finds appropriate
a unit consisting of all office clerical employees, in-
cluding part-time receptionists and artist employed
by the Employer at WVUE-TV, excluding all
other employees, professional employees, salesmen,
confidential secretary, guards and supervisors as
defined in the Act. Thereafter, on March 10, 1980,
Respondent filed a timely request for review of the
Regional Director's decision on the ground that
the unit was inappropriate because it excluded
salesmen, which request was subsequently denied
by the Board. The election was conducted on
March 28, 1980. The tally of ballots showed 12
votes were cast for, and 7 against, the Union; there
was I challenged ballot, which was insufficient to
affect the results. Accordingly, on April 7, 1980,
the Regional Director certified the Union as the
exclusive representative of the employees in the
unit found appropriate.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
2 See Pittsburgh Plate Glass Co. v. NL.R.B., 313 US. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
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1DECISIONS OF NATIONAl LA3OR RELATIONS BO()ARD
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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent, a Delaware corporation, is engaged
in the business of operating a television station,
WVUE-TV, in New Orleans, Louisiana. During
the 12 months preceding issuance of the complaint,
a representative period, Respondent had sales and
performed services valued in excess of $50,000 for
customers located outside the State of Louisiana. In
this same representative period, Respondent pur-
chased goods valued in excess of $50,000 directly
from points located outside the state of Louisiana,
and received gross revenues in excess of $500,000
from sales and the performance of services for cus-
tomers located within and outside the State of Lou-
isiana.
We find, on the basis of the foregoing, that Re-
spondent 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
General Truck Drivers, Chauffeurs, Warehouse-
men & Helpers Local 270, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Ind., 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All office clerical employees, including part-
time receptionists and artist employed by the
Employer at WVUE-TV, excluding all other
employees, professional employees, salesmen,
confidential secretary, guards and supervisors
as defined in the Act.
2. The certification
On March 28, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 15, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 7, 1980, 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
RefusaJ
Commencing on or about April 7, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 17, 1980, and continu-
ing at all times thereafter to date, 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 Respondent has, since
April 17, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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. 'IHE EFFF CI OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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
1358
GAYLORD BROADCASTING CO.
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Gaylord Broadcasting Company, Owners and
Operators of WVUE-TV, is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. General Truck Drivers, Chauffeurs, Warehou-
semen & Helpers Local 270, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Ind., is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All office clerical employees, including part-
time receptionists and artist employed by the Em-
ployer at WVUE-TV, excluding all other employ-
ees, professional employees, salesmen, confidential
secretary, guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since April 7, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 April 17, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 the Respondent.
Gaylord Broadcasting Company, Owners and Op-
erators of WVUE-TV, New Orleans, Louisiana, 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 General Truck
Drivers, Chauffeurs, Warehousemen & Helpers
Local 270, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Ind., as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All office clerical employees, including part-
time receptionists and artist employed by the
Employer at WVUE-TV, excluding all other
employees, professional employees, salesmen,
confidential secretary, guards and supervisors
as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its New Orleans, Louisiana, facility
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be
3 In the event Ihat 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 "Pofted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board "
1359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 General Truck Drivers, Chauffeurs, War-
ehousemen & Helpers Local 270, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Ind., as
the exclusive representative of the employees
in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All office clerical employees, including part-
time receptionists and artist employed by the
Employer at WVUE-TV, excluding all
other employees, professional employees,
salesmen, confidential secretary, guards and
supervisors as defined in the Act.
GAYLORD BROADCASTING COMPANY,
OWNERS AND OPERATORS OF
WVUE-TV
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