Net Television, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 640 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Net Television, Inc., a wholly owned subsidiary of
Educational Broadcasting Corporation and Na-
tional Association of Broadcast Employees and
Technicians, AFL-CIO. Case 7-CA-17233
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBIERS
JENKINS AND PENELI.O
Upon a charge filed on December 31, 1979, by
National Association of Broadcast Employees and
Technicians, AFL-CIO, herein called the Union,
and duly served on NET Television, Inc., a wholly
owned subsidiary of Educational Broadcasting Cor-
poration, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a com-
plaint and notice of hearing on January 3, 1980,
against Respondent, alleging that Respondent has
engaged in and was engaging 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 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 November
16, 1979, following a Board election in Case 7-RC-
15530, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
21, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On January
17, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On February 4, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
15, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 7-RC-15530, as the term "record" is defined in Secs 102.68
and 10 2.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electroystem., Inc., 166 NLRB 98 (1967). enfd. 388 F2d 683
(41h Cir. 1968): Golden .4ge Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969). Interlype Co. v. Penello, 269 F Supp 573 (D.C Va
1967); Follei Corp., 164 NLRB 278 (1967). enfd. 397 F2d 91 7th Cir.
1968); Sec. 9(d) of the NLRA, as amended.
thereafter filed a response to the Notice To Show
Cause.
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 and response to
the Notice To Show Cause, Respondent admits
certain factual allegations of the complaint, includ-
ing the request and refusal to bargain, but in sub-
stance attacks the validity of the Union's certifica-
tion. Respondent contends that the unit certified is
inappropriate because it does not include Respond-
ent's sales and administrative personnel working at
the same facility, that certain factual findings con-
tained in the Acting Regional Director's Decision
and Direction of Election were erroneous and con-
trary to the record, and that Production Supervi-
sors Stephen Krebs and Stephen Chojnowski were
erroneously found to be eligible voters. Respondent
further urges that if Krebs and Chojnowski were
deemed eligible, distribution "supervisor" Sylvia
Measle should also have been permitted to vote.
Counsel for the General Counsel, on the other
hand, argues that there are no issues of fact in this
proceeding which would necessitate or justify a
hearing, that Respondent is not averring any newly
discovered or previously unavailable evidence or
circumstances not previously considered by the
Board, and that, because all issues concerning the
Union's certification were litigated and determined
in the underlying representation case, summary
judgment is appropriate herein.
A review of the record herein, including the
record in Case 7-RC-15530, reveals that the
Acting Regional Director for Region 7 issued a
Decision and Direction of Election on August 30,
1979. Thereafter, the Employer (Respondent
herein) filed a request for review of that decision
asserting that Krebs and Chojnowski were improp-
erly held not to be supervisors, and requested that
the stipulation "to confer supervisory status upon
Sylvia Measle be withdrawn," contending that
Measle occupied a position essentially analagous to
Krebs' and to Chojnowski's; thus, if it were deter-
mined that the latter two were not supervisors,
Measle should be similarly treated. On September
25, 1979, the Employer's request for review of the
Acting Regional Director's Decision and Direction
of Election was denied. The request to withdraw
the stipulation was also denied. In an election held
on September 27, 1979, the tally of ballots showed
252 NLRB No. 88
640
NET TELEVISION, INC.
18 votes for, and 19 votes against, the Union, with
2 challenged ballots. On October 11, 1979, the Re-
gional Director issued a Supplemental Decision on
Determinative Challenges and Order, in which he
overruled the challenges to the ballots of Krebs
and Chojnowski. Following a revised tally of bal-
lots, showing a vote of 20 for, and 19 against, the
Union, the Regional Director, on November 16,
1979, issued a Certification of Representative. The
Union requested bargaining by letter dated Decem-
ber 11, 1979. By letter dated December 21, 1979,
Respondent declined to bargain on the ground that
it questioned the validity of the Union's certifica-
tion based on its contentions that the Board erred
in finding Krebs and Chojnowski not to be supervi-
sors and, alternatively, if they were permitted to
vote, Sylvia Measle, whose vote could have been
determinative, "should have been permitted to vote
in the election." In a memorandum to its staff also
dated December 21, Respondent informed its em-
ployees of the aforementioned position.
In the context of its position at the representation
hearing that "production supervisors" Krebs and
Chojnowski were statutory supervisors, the Em-
ployer was then willing to stipulate that Measle
was also a supervisor. Thereafter, the Acting Re-
gional Director in his Decision and Direction of
Election found Krebs and Chojnowski not to be
supervisors; and the Employer, arguing that Krebs,
Measle, and Chojnowski occupied analogous posi-
tions, attempted-prior to the election-to withdraw
its stipulation as to Measle. That request was
denied, however, and Measle was thus not allowed
to vote. Upon due consideration of the matter, we
conclude that the refusal to permit withdrawal of
the stipulation before the election was in error.
If the record disclosed evidence to sustain a find-
ing of supervisory status as to Measle, the denial of
permission to withdraw the stipulation, though er-
roneous, might still be viewed as resulting in no
prejudice. 2 But that is not the case here. The par-
2 In our recent Decision in Judd Valve Co., Inc., 248 NLRB I (1980),
the Board affirmed the Regional Director's finding that Board cases
"hold that the final issue of eligibility is to be decided upon the facts sur-
rounding that voter's status rather than upon the finality of the agreement
between the parties." Thus. even if there had been an agreement between
the parties as of the time of the election herein, it would not be disposi-
tive on the statutory question of Measle's status as an employee See Judd
Valve, upra,. at fn 3. and Appendix, par 6 Plgrm Foods, Inc., 234
ties' initial agreement as to Measle did not factually
address her actual job duties and authority3 nor
was her status litigated in that regard. Indeed, to
the extent that the record sheds light on the super-
visory issue, it reinforces the conclusion of error.
Production Supervisors Krebs and Chojnowski,
who worked the afternoon and night shift, respec-
tively, were concededly the highest ranking per-
sons in production during their shifts.4 By contrast,
distribution "supervisor" Measle and shipping de-
partment "supervisor" Tindall worked solely on
the day shift, directly subject to the direction of
Operations Manager Masten. While these four, so
far as the record in the representation case dis-
closes, appear to have occupied essentially the
same position, Tindall, Krebs, and Chojnowski
were all found not to be statutory supervisors. 5
Measle, however, was precluded from voting by
the preelection refusal to allow the Employer to
withdraw the stipulation that she was a supervisor.
That stipulation simply finds Measle ineligible to
vote and the record in the representation case is in-
sufficient to confirm supervisory authority. As it
now appears that a vote by her could have been
determinative, we conclude that summary judg-
ment is inappropriate, and shall deny the General
Counsel's motion to that effect.6
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment in the above-cap-
tioned proceeding be, and it hereby is, denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 7 for further appro-
priate action.
NLRB 136 at fn 5 (1978); Laymon Candy Company, 199 NLRB 547 at fn
2 (1972)
a Chairman Fanning does not regard the Board as bound by parties'
stipulations on issues of supervisory status. Judd alve, supra. Member
Jenkins has emphasized his view of the necessity of "a factual stipulation
as to the duties and authority" of disputed individuals in such circum-
stances. See his concurring opinion in Judd Valve. supra.
4 They assigned work. a function performed on the day shift by an ad-
mitted supervisor. the department head.
I Tape inspection "supervisor" Tighe, who apparently occupied a simi-
lar position, was authorized to vote subject to challenge by the Acting
Regional Director's Decision.
a In denying the General Counsel's Motion for Summary Judgment,
Member Penello relies solely on the fact that the attempted withdrawal
from the stipulation occurred prior to the election.
641