NBC UNIVERSAL, INC.

National Labor Relations Board - Board Decisions

Apr 7, 2014

360 N.L.R.B. 633 (N.L.R.B. 2014)

NBC UNIVERSAL, INC. 633
360 NLRB No. 69
NBC Universal, Inc. and National Association of
Broadcast Employees & Technicians. Case 02–
CA–115732
April 7, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Board’s unit determination in
the underlying representation proceeding. The Board in
that proceeding granted the Union’s unit clarification
petition, finding that the Respondent’s New York, Chi-
cago, and Los Angeles content producers were properly
included in the unit.
Pursuant to a charge and an amended charge filed on
October 28 and 30, 2013, respectively, by the National
Association of Broadcast Employees & Technicians (the
Union), the General Counsel issued the complaint in this
proceeding on December 4, 2013. The complaint alleges
that the Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing the Union’s requests to bargain
and to provide information following the Union’s filing
of the unit clarification petition in Case 02–UC–000619.1
(Official notice is taken of the “record” in the representa-
tion proceeding as defined in the Board’s Rules and
Regulations, Secs. 102.68 and 102.69(g). Frontier Ho-
tel, 265 NLRB 343 (1982).) The Respondent filed an
answer, admitting in part and denying in part the allega-
tions in the complaint, and asserting affirmative defens-
es.
On January 17, 2014, the General Counsel filed a Peti-
tion for Summary Judgment and Issuance of Decision
and Order and a Memorandum in Support. On January
23, 2014, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response, and the General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Petition for Summary Judgment
The Respondent admits its refusal to bargain and to
provide information, but contends that this refusal is not

1 The underlying unit clarification proceeding encompassed several
petitions for clarification in Cases 02–UC–000619, 02–UC–000625,
05–UC–000403, 05–UC–000407, 13–UC–000417, and 31–UC–
000323. The General Counsel refers to Case 02–UC–000625 presuma-
bly because that petition was filed by the Charging Party in this pro-
ceeding. However, as all of the cases were consolidated and ruled upon
in one proceeding, we shall follow Board procedure and refer to the
unit-clarification proceeding by the lowest case number in the consoli-
dated matters.
unlawful on the ground that the Board erred in granting
the Union’s unit-clarification petition and clarifying the
unit to include the position of content producer at the
Respondent’s New York, Chicago, and Los Angeles sta-
tions.
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.2 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 Petition for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration, with an office and place of business at 30
Rockefeller Plaza, Room 75/635N, New York, New
York 10112 (the Respondent’s facility), has been en-
gaged in the creation and distribution of network and
local news at owned and operated stations throughout the
country, including in New York, Chicago, and Los An-
geles.
During the 2013 calendar year, the Respondent, in
conducting its operations described above, derived gross
revenues in excess of $100,000, and sold media space to
advertisers that advertise national products, and its busi-
ness is national in scope.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union, National Association
of Broadcast Employees & Technicians, is a labor organ-
ization within the meaning of Section 2(5) of the Act.

2 The Respondent contends that several documents that postdate the
unit-clarification hearing, including grievances filed in 2011 and a
collective-bargaining agreement executed in January 2012, constitute
new evidence that the Union’s Local 11 continued to rely on the Con-
tent Producer Agreement after the hearing. Contrary to the Respond-
ent’s argument, we find that these documents do not constitute newly
discovered and previously unavailable evidence. Rather, the docu-
ments are similar to those introduced at the hearing, with the exception
of the dates, and they are offered in support of the same arguments that
the Respondent raised at the hearing, which have been rejected. There-
fore, we find that the submission of these documents does not compel a
different result in this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD634
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The employees described in the scope of unit clauses
of the individual articles of the most recent master
agreement between the Respondent and the Union, de-
scribed below, constitute a unit appropriate for the pur-
poses of collective bargaining (the unit) within the mean-
ing of Section 9(b) of the Act.
Since about 2006 and at all material times, the Re-
spondent has recognized the Union as the exclusive col-
lective-bargaining representative of the unit. This recog-
nition has been embodied in successive collective-
bargaining agreements, the most recent of which was
effective from April 1, 2006, to March 31, 2009.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
On October 26, 2011, the Acting Regional Director is-
sued a decision in a unit-clarification case, Case 02–UC–
000619, finding that the Respondent’s newly created
position of content producer at the Respondent’s New
York, Chicago, and Los Angeles owned and operated
local stations was properly included in the unit.
On December 15, 2011, the Respondent filed a request
for review of the Acting Regional Director’s decision.
On September 25, 2013, the Board issued an Order
denying the Respondent’s request for review of the Act-
ing Regional Director’s decision.
B. Refusal to Bargain
At all material times, Angel Ortiz held the position of
the Respondent’s vice president of labor relations and
has been an agent of the Respondent within the meaning
of Section 2(13) of the Act.
By letter dated October 10, 2013, the Union requested
that the Respondent bargain collectively about the terms
and conditions of employment of the content producers
employed in New York, Chicago, and Los Angeles.
Since about October 22, 2013, the Respondent has
failed and refused to bargain collectively with the Union
as the exclusive bargaining representative of the content
producers.
In the October 10, 2013 letter described above, the Un-
ion requested that the Respondent furnish it with the fol-
lowing information:
(i) A report listing all of the employees who were hired
as content producers as of, or subsequent to, the date
the Content Centers went on-line in each of the three
cities, whether or not any individual is still employed in
such a position;
(ii) A report of all wages earned from the date any such
individual began employment as a content producer,
through the present date;
(iii) A report of any additional payments, other than
wages, made since any such individual began employ-
ment as a content producer, through the present date;
(iv) A report of the total number of hours worked since
any such individual began employment as a content
producer, through the present date;
(v) Copies of any and all job or performance evalua-
tions;
(vi) Copies or records of any discipline issued since any
such individual began employment as a content pro-
ducer, through the present date;
(vii) A list of any content producers who have received
any Voluntary Separation offers from the Company
since any such individual began employment as a con-
tent producer, through the present date;
(viii) A list of all content producers that have appeared
on-camera in performance of their assignment as a con-
tent producer.
The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about October 22, 2013, the Respondent, by An-
gel Ortiz, in writing, has failed and refused to furnish the
Union with the information requested by it as described
above.
CONCLUSION OF LAW
By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the content producers, and by failing and
refusing to furnish the Union with the requested infor-
mation described above, the Respondent has been failing
and refusing to bargain collectively and in good faith
with the exclusive collective-bargaining representative of
its unit employees and has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.3

3 In its answer to the complaint, the Respondent denied several of
the complaint’s allegations, including the allegation that it refused to
bargain with the Union as the exclusive bargaining representative of the
content producers, and the allegation that the requested information is
necessary for, and relevant to, the Union’s performance of its duties as
the exclusive collective-bargaining representative of the unit. Nonethe-
less, in its response to the Board’s Notice to Show Cause, the Respond-
ent states that it “does not deny that it has refused to bargain over the
terms and conditions of employment of the content producers, nor has it
provided the requested information.” We find that the Respondent’s
denials do not raise an issue warranting a hearing in this proceeding.
NBC UNIVERSAL, INC. 635
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to rec-
ognize and bargain with the Union and to provide the
Union with requested information, we shall order the
Respondent to cease and desist, to recognize and bargain
on request with the Union and, if an understanding is
reached, to embody the understanding in a signed agree-
ment. We shall also order the Respondent to provide the
Union with the information it requested on October 10,
2013.
ORDER
The National Labor Relations Board orders that the
Respondent, NBC Universal, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the National Association of Broadcast Employees &
Technicians, the Union, as the exclusive collective-
bargaining representative of the content producers in the
bargaining unit.
(b) Failing and refusing to provide the Union with the
information it requested on October 10, 2013, which is
necessary for and relevant to the performance of the Un-
ion’s duties as the exclusive collective-bargaining repre-
sentative of the unit.
(c) 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 exclusive
collective-bargaining representative of the content pro-
ducers on terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
(b) Provide to the Union in a timely manner the infor-
mation the Union requested on October 10, 2013.
(c) Within 14 days after service by the Region, post at
its facilities in New York, New York, Chicago, Illinois,
and Los Angeles, California, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms

Further, it is clear from the Respondent’s submissions that it is in fact
refusing to bargain with the Union in order to obtain Board reconsid-
eration or court review of the Board’s determination that the content
producers are properly included in the unit. Moreover, the requested
information relates to the wages, hours, and terms and conditions of
employment of the content producers; accordingly, as these employees
are part of the bargaining unit, the requested information is presump-
tively relevant.
4 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-
provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representa-
tive, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since October 10, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with the National Association of Broadcast Employees &
Technicians (the Union) as the exclusive collective-
bargaining representative of the content producers in the
bargaining unit.
WE WILL NOT fail and refuse to provide the Union with
the information it requested on October 10, 2013, which

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD636
is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the con-
tent producers and put in writing and sign any agreement
reached on terms and conditions of employment.
WE WILL provide to the Union in a timely manner the
information it requested on October 10, 2013.
NBC UNIVERSAL, INC.