Charles River Broadcasting Co.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 534 (N.L.R.B. 1973)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles River Broadcasting Company and Local 1228,
International Brotherhood of Electrical Workers,
AFL-CIO-CLC. Case 1-CA-8577
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on September 15, 1972, by
Local 1228, International Brotherhood of Electrical
Workers, AFL-CIO-CLC, herein called the Union,
and duly served on Charles River Broadcasting
Company, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued a
complaint on October 4, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 August 3,
1972, following a Board election in Case
1-RC-11915, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; 1
and that, commencing on or about August 30, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On October 12, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On November 3, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 10,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. On
November 29, 1972, Respondent filed a reply to
Notice To Show Cause.2
Pursuant to the provisions of Section 3(b) of the
i Official notice is taken of the record in the representation proceeding,
Case I-RC-11915, as the term "record" is defined in Secs 102 68 and
102 69(f) of the Board 's Rules and Regulations, Series 8 , as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269
F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d
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, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its Reply to
Motion for Summary Judgment Respondent denies
that it unlawfully refused to bargain and contends
that the Regional Director and the Board erred in
overruling Respondent's objections to the election in
the underlying representation case . Respondent
further contends that it is entitled to a hearing on
such matters and seeks to adduce additional evidence.
We do not agree.
The record in the underlying representation pro-
ceeding, 1-RC-11915, indicates that a formal hear-
ing was held in Boston, Massachusetts, on February
2, 1972, to determine the appropriate unit and such
other representation issues that might be raised.
Thereafter, on March 7, 1972, the Regional Director
issued his Decision and Direction of Election and
defined the appropriate unit and determined, inter
alia, that Kevin Mostyn was an employee and not a
supervisor. On March 31, 1972, the Board denied
Respondent's Request for Review of Decision but
permitted Mostyn to vote a challenged ballot. An
election was conducted on April 5, 1972, at which a
majority of employees selected Local 1228, IBEW as
their representative. On April 12, 1972, Respondent
filed timely objections to conduct affecting the
election, alleging, inter alia, that the Board agent's
ruling that a ballot was void was improper and that
the Regional Director's decision holding that Mostyn
was not a supervisor was in error. On May 17, 1972,
the Regional Director issued a Supplemental Deci-
sion on Objections and Challenged Ballots overrul-
ing Respondent's objections in their entirety. On July
7, 1972, the Board denied Respondent's request for
review of the Regional Director's Supplemental
Decision on Objections and Challenged Ballots and
concluded that it raised no substantial issues war-
ranting review. On July 17, 1972, Respondent filed a
Motion To Reopen the Record for Receipt of New
Evidence and To Reconsider the Status of the Chief
Engineer. In such motion, Respondent contended
that amended rules and regulations of the Federal
Communications Commission effective July 14,
1972, affected the position of chief engineer and
91 (C A 7, 1968), Sec 9(d) of the NLRA
2 On November 13, 1972, Respondent requested oral argument in
opposition to the Motion for Summary Judgment. Such request is denied as
the motion and Respondent 's reply adequately present the positions of the
parties
1
202 NLRB No. 75
CHARLES RIVER BROADCASTING CO.
requested reconsideration of the status of Mostyn,
the chief engineer. By telegram dated August 20,
1972, the Board denied the motion for reconsidera-
tion as lacking in merit.
In its reply to the General Counsel's Motion for
Summary Judgment, Respondent again raises the
issue of the void ballot and the supervisory status of
Mostyn and requests a hearing. Both the ballot issue
and Mostyn's supervisory status were previously
decided adversely to the Respondent by the Board
on two occasions.
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.3
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
do we find that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation
with its principal office and place of business at 750
South Street, Waltham, Massachusetts, and is en-
gaged in the operation of a radio broadcasting
station. During the past year, Respondent derived a
gross income in excess of $100,000, held membership
in and subscribed to Interstate News Services, and in
the course and conduct of its business purchased
large quantities of radio equipment, supplies, and
other items which were transported in interstate
commerce.
We find, 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
535
Local 1228, International Brotherhood of Electri-
cal Workers, AFL-CIO-CLC, 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 engineers, announcers, salesmen-announc-
ers, combo personnel and the music director of
the Employer at its Waltham, Massachusetts area
studios and transmitters, but excluding all other
employees, salesmen, office clerical employees,
professional employees, guards and supervisors,
as defined in the Act.
2. The certification
On April 5, 1972, 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 1 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 August 3, 1972, 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 August 4, 1972, 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-
mencing on or about August 30, 1972, 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 find that the Respondent has,
since August 30, 1972, and at 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-
3 See Pittsburgh Plate G l a s s Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent, set forth in
section III, above, occurring in connection with its
operations 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 commences
to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
Conclusions of Law
1. Charles River Broadcasting Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 1228, International Brotherhood of
Electrical Workers, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All engineers, announcers, salesmen-announc-
ers, combo personnel and the music director of
Respondent employed at its Waltham, Massachu-
setts area studios and transmitters, but excluding all
other employees, salesmen, office clerical employees,
professional employees, guards and supervisors, as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since August 3, 1972, 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 August 30, 1972, 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,
Charles River Broadcasting Company, Waltham,
Massachusetts, 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 Local 1228, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO-CLC, as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
All engineers, announcers, salesmen-announc-
ers, combo personnel and the music director of
the Employer at its Waltham, Massachusetts area
studios and transmitters, but excluding all other
employees, salesmen, office clerical employees,
professional employees, guards and supervisors,
as defined in the Act.
(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 finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named'
CHARLES RIVER BROADCASTING CO. 537
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its principal office at 750 South Street,
Waltham, Massachusetts, and at appropriate places
at its area studios and transmitters copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
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 1 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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
sentative 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 all 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 -engineers, announcers, salesmen-an-
nouncers, combo personnel and the music
director of the Employer at its Waltham,
Massachusetts area studios and transmitters,
but excluding all other employees, salesmen,
office clerical employees, professional em-
ployees, guards and supervisors, as defined
in the Act.
CHARLES RIVER
BROADCASTING COMPANY
(Employer)
Dated By
(Representative) (Title)
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 Local
1228, International Brotherhood of Electrical
Workers, AFL-CIO-CLC, as the exclusive repre-
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.