Westinghouse Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 693 (N.L.R.B. 1975)

WESTINGHOUSE BROADCASTING CO., INC. 693
Westinghouse Broadcasting Company, Inc. (WJZ-
TV, Channel -13) and Directors Guild of America,
Inc. Case 5-CA-7122
June 19, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on February 5, 1975, by
Directors Guild of America, Inc., herein called the
Union, and duly served on Westinghouse Broadcast-
ing Company, Inc. (WJZ-TV, Channel 13), herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint on
February 26, 1975, 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, 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 January 16,
1975, following a Board election in Case 5-RC-8865
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about February 3, 1975, and at all
times thereafter, Respondent has refused, and con-
tinues 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 March 10, 1975, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint, and
asserting affirmative defenses thereto. Respondent
argues that the unit found appropriate by the Board
includes managerial and/or supervisory positions,
thus the election and resulting certification of the
Union are invalid.
On March 14, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, asserting that the Respondent,
by its answer, is attempting to relitigate issues raised
and resolved in the underlying representation pro-
ceeding. Subsequently, on, April 2, 1975, the Board
1 Official notice is taken of the record in the representation proceeding,
Case 5-RC-8865 , 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 (CA. 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., 1957);
issued an order transferring the proceeding before it
and a notice to show cause why the General
Counsel's motion should not be granted. Respondent
filed a memorandum in opposition to the notice to
show cause, asserting that the Board should allow
litigation of the complaint or reopen the record in
Case 5-RC-8865 for the submission of further briefs
and the presentation of oral argument, and, because
of the impact of its decision on the television
broadcasting industry, for the introduction of evi-
dence of industry practice. Respondent also argues
that the Board failed to fully evaluate credible
evidence and to truly consider the managerial status
of the producer/directors in light of the Supreme
Court's decision in N.L.R.B. v. Bell Aerospace
Company, et al., 416 U.S. 267 (1974).
Pursuant to the provisions of Section 3(b) of the
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,2 the
Board makes the following:
Ruling on the Motion for Summary Judgment
As noted above, Respondent basically asserts that
the Board erred in several respects in its unit
determination in the representation proceeding, and
argues that the Board should receive evidence
concerning industry practice and the effect the
Board's decision may have thereon, either by
reopening the representation case record or by
litigation of the instant complaint.
The record in Case 5-RC-8865 indicates that,
following the hearing before a Hearing Officer, the
proceeding was transferred to and continued before
the Board. At the hearing and before the Board,
Respondent argued, inter alia, that the produc-
er/directors were managerial and/or supervisory
positions, and that the Supreme Court's decision in
N.L.R.B. v. Bell Aerospace Company, et al., supra,
required a fording that these individuals were
managerial employees, thus their inclusion in the unit
would be inappropriate. On November 26, 1974, the
Board issued a Decision and Direction of Elections3
finding that the producers/directors were not super-
visors and not managerial and that the unit sought
by the Union which included producer/directors was
appropriate and directing an election therein. On
January 8, 1975, an election was conducted which
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (CA. 7, 1968); Sec.
9(d) of the NLRA.
2 Respondent's request that oral argument be held is denied as the
General Counsel's motion and the Respondent's memorandum in opposi-
tion to the notice to show cause adequately , present the positions of the
parties.
3 215 NLRB No. 26.
218 NLRB No. 102
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulted in a 5 to 0 vote in favor of the Union. On
January 16, 1975, the Regional Director in the
absence of objections certified the Union.
From the foregoing it appears that the issues
surrounding the managerial and/or supervisory
status of producer/directors were fully litigated in
the underlying, representation proceeding, including
the application of the Supreme Court's decision in
Bell Aerospace Company thereto. Respondent was
provided a full opportunity to present evidence
before the Hearing, Officer and brief its position to
the Board. Respondent makes no showing that it
could not have presented evidence on the aspects of
the case it now argues require a hearing., It does not
assert that such evidence is newly discovered or was
unavailable for introduction in that proceeding. In
these circumstances, we are not disposed now,
approximately a year after the representation case
hearing, to consider such evidence, either by reopen-
ing the representation case record or as introduced at
a hearing before an Administrative Law Judge on the
instant complaint.
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.4
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
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 fmd that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.5 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 an Indiana corporation with its
principal offices in New York, New York, and is
engaged in the operation of a television station at its
4 See Pittsburgh Plate Glass Co. v. N.LKB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
s In its answer to the complaint , Respondent denies the allegations that
the Union requested bargaining and it refused to bargain. However,
attached to the General Counsel's motion as exhibits are copies of
correspondence between the Union and Respondent. By letter dated
January 20, 1975, the Union suggested arranging a mutually convenient
time to meet and discuss signing a collective-bargaining agreement. By letter
Television Hill, Baltimore, Maryland, location. Dur-
ing the preceding 12 months,.a representative period,
Respondent had gross sales in excess of $100,000.
During the same period, Respondent received in
interstate commerce income from the advertising of
national brand products.
We fmd, 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
Directors Guild of America, Inc., 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 staff producer/directors and all others
doing the work of directors; excluding all others."
2. The certification
On January 8, 1975, 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 5 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 16, 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 January 20, 1975, 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-
dated February 3, 1975, Respondent advised the Union that, until the status
of the producer/directors was established, it was respectfully declining to
enter into collective-bargaining negotiations with the Union . Respondent
has not controverted these documents , or their content . Accordingly, we
deem these allegations of the complaint to be true , and so find . Teledyne,
Landis Machine 212 NLRB 73 (1974); The May Department Stores
Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc., 161 NLRB 1389
(1966).
WESTINGHOUSE BROADCASTING CO., INC. 695
menning on or about February 3, 1975, 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 ford that the Respondent has,
since February 3, 1975, and alt 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-
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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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); Burnett 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.
(WJZ-TV, Channel 13), 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
organization within the meaning of Section 2(5) of
the Act.
3. All staff producer/directors and all others
doing the work of directors, excluding all others,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since January 16, 1975, 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 February 3, 1975, 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,
Westinghouse Broadcasting Company, Inc. (WJZ-
TV, Channel 13), Television Hill, Baltimore, Mary-
land, 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 Directors Guild of
America, Inc., as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit: "All staff producer/directors and all others
doing the work of directors, excluding all others."
(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 fords will effectuate the policies of the Act:
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 employmept, and, if an under-
standing is reached, embody such understanding in a
signed agreement.' '
(b) Post at its Television Hill, Baltimore, Maryland,
facility copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director'for Region 5, after
being duly signed by Resppnctent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in co}Ispicuous places,
including all places where notices to employees are
customarily posted. Reasonable sups 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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
NoTIcE To EMPLOYEES,
POSTED BY ORDER OF THE
NATIONAL LABOR RBI.ATIONS 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 Direc-
tors Guild of America, Inc., 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 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' ll 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 staff produc-
er/directors and all others doing the work of
directors, excluding all others."
WESTINGHOUSE
BROADCASTING
COMPANY, INC. (WJZ-
TV, CHANNEL 13)