Telemundo of Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1996

321 N.L.R.B. 916 (N.L.R.B. 1996)

916
321 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its response to the Notice to Show Cause, the Respondent con-
tends that there is significant new information that was not consid-
ered in the representation case that could materially affect the out-
come of this case, and requests that this information, consisting of
a May 15, 1995 letter from the Respondent’s vice president of
human resources and a May 9, 1996 affidavit (with cover letter) by
the Respondent’s production services department director, be admit-
ted into evidence. We reject the Respondent’s contention and deny
its request. The May 15, 1995 letter, which indicates that the posi-
tion of technical supervisor was being eliminated, was previously
submitted to the Board with the Respondent’s request for review of
the Regional Director’s January 30, 1996 Decision and Direction of
Election in the representation proceeding, and was fully considered
by the Board in that proceeding. Thus, the May 15, 1995 letter is
clearly not ‘‘new information’’ as asserted by the Respondent, nor
is it newly discovered and previously unavailable evidence. As for
the May 9, 1996 affidavit by the Respondent’s production services
department director (Elizabeth Rivera), we find that it also does not
contain any newly discovered and previously unavailable informa-
tion. We note in this regard that Rivera testified in the representation
proceeding, and there is nothing in the Respondent’s opposition or
the affidavit itself explaining why she could not have presented the
information contained in her affidavit, most of which merely restates
the information in the May 15, 1995 letter and describes in general
terms her own duties and the former duties of the technical super-
visor, at that time. The only information in the affidavit which on
its face could be characterized as ‘‘new’’ in the sense that it involves
events allegedly occurring after the February 28, 1996 election, is
the alleged fact that the Respondent created an evaluation committee
in March 1996, which included the technical directors, for the pur-
pose of evaluating the work of the technical crew. Even if true that
such a committee were created, however, and that this constituted a
change in the technical directors’ duties, such information would not
constitute newly discovered and previously unavailable evidence. See
Indeck Energy Services, 318 NLRB 321 fn. 5 (1995); and East
Michigan Care Corp., 246 NLRB 458, 459 (1979).
Telemundo of Puerto Rico, Inc. and Union de
Periodistas, Artes Graficas Ramas Anexas, af-
filiated to the Newspaper Guild, AFL–CIO,
CLC. Case 24–CA–7414
August 16, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Pursuant to a charge and amended charge filed on
April 18 and May 28, 1996, respectively, the General
Counsel of the National Labor Relations Board issued
a complaint and notice of hearing on May 30, 1996,
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing the Union’s request to bargain following the
Union’s certification in Case 24–RC–7694. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On July 9, 1996, the General Counsel filed a Motion
for Summary Judgment. On July 11, 1996, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits that the Union
has requested and that it has refused to recognize and
bargain with the Union, but attacks the validity of the
certification on the basis of the Board’s determination
in the representation proceeding that the Respondent’s
technical directors are not supervisors.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Common-
wealth of a Puerto Rico corporation with an office and
place of business in Hato Rey, Puerto Rico, has been
engaged in the operation of a television broadcasting
station. During the 12-month period preceding issuance
of the complaint, the Respondent, in conducting its
business operations, derived gross revenues in excess
of $100,000 and purchased and received at its Hato
Rey, Puerto Rico facility goods valued in excess of
$50,000 directly from points outside the Common-
wealth of Puerto Rico. We find that the Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held February 28, 1996, the
Union was certified on March 11, 1996, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
917TELEMUNDO OF PUERTO RICO, INC.
2 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
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.’’
Included: All technical directors (TD) employed
by the Employer at its TV station located at
Hato Rey, Puerto Rico.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about March 20, 1996, the Union has re-
quested the Respondent to bargain, and, since about
March 21, 1996, the Respondent has refused. We find
that this refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after March 21, 1996, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Telemundo of Puerto Rico, Inc., Hato
Rey, Puerto Rico, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Union de Periodistas,
Artes Graficas Ramas Anexas, Affiliated to the News-
paper Guild, AFL-CIO, CLC as the exclusive bargain-
ing representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering with,
restraining, 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
Included: All technical directors (TD) employed
by the Employer at its TV station located at
Hato Rey, Puerto Rico.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post
at its facility in Hato Rey, Puerto Rico, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 24 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, 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 Re-
spondent at any time since April 18, 1996.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Union de
Periodistas, Artes Graficas Ramas Anexas, affiliated to
the Newspaper Guild, AFL–CIO, CLC as the exclusive
representative of the employees in the bargaining unit.
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
Included: All technical directors (TD) employed
by us at our TV station located at Hato Rey,
Puerto Rico.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
TELEMUNDO OF PUERTO RICO, INC.