Mid-America Media, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1253 (N.L.R.B. 1980)

MID-AMERICA MEDIA, INC. 1253
Mid-America Media, Inc. and National Association
of Broadcast Employees and Technicians, AFL-
CIO. Case 7-CA-17254
April 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on January 4, 1980, by Na-
tional Association of Broadcast Employees and
Technicians, AFL-CIO, herein called the Union,
and duly served on Mid-America Media, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint on
January 11, 1980, against Respondent, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
28, 1979, following a Board election in Case 7-RC-
15437 the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about December 26,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On January
21, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On February 6, 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
thereafter filed a response to Notice To Show
Cause.
I Official notice is taken of the record in the representation proceed-
ing, Case 7 RC-15437, 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
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp 573
(D.C.Va 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir 1968); Sec 9(d) of the NLRA, as amended.
248 NLRB No. 165
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 denies the
validity of the Union's certification and asserts that
the election herein should be set aside because of
union misconduct. In its answer Respondent also
denies that a majority of its employees selected the
Union as their representative for the purpose of
collective bargaining with Respondent. In addition,
in its response to the Notice To Show Cause, Re-
spondent requests a hearing.
A review of the record reveals that, pursuant to
a Decision and Direction of Election issued on
July 3, 1979, an election was conducted on July 31,
1979. Of 15 ballots cast, 9 were for and 6 against
the Union, with no challenged ballots. Respondent
filed timely objections in which it alleged that the
Union coerced and made material misrepresenta-
tions to employees in order to obtain their support.
On September 28, 1979, the Regional Director
issued his supplemental decision in which he over-
ruled the objections in their entirety and certified
the Union. On October 17, 1979, Respondent filed
a request for review of the supplemental decision
on the ground the Regional Director had departed
from Board precedent. The Board denied the re-
quest for review on November 16, 1979.2
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 find that Respondent has not raised any
2 Member Penello notes that in joining his colleagues in denying the
request for review he did so, insofar as the objections involved alleged
misrepresentations, for the reasons set forth in Shopping Kartr Food
Markert Inc.. 228 NLRB 1311 (1977), the principles of which he still ad-
heres to. See his dissenting opinion in General Knit of California, Inc.. 239
NLRB No. 101 (1978).
3 See Pittsburgh Plate Glass Co. v NL.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c).
MIDAMERICA MEDIA, NC.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue which is properly litigable in this unfair labor
practice proceeding.
In its answer Respondent denies the complaint
allegation that the unfair labor practices alleged
have a substantial relationship to commerce within
the meaning of Section 2(6) and (7) of the Act. Re-
spondent does not repeat this denial in its response
to the Notice To Show Cause. Since no argument
to support the denial has been advanced, we find it
to be without merit. Accordingly, we shall deny
Respondent's request for a hearing and grant the
Motion for Summary Judgment.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged
in the operation of an AM radio station with the
call letters WTRX at its facility located at G 3076
Bristol Road, Flint, Michigan. The Flint facility is
the only facility of Respondent involved in this
proceeding.
During the past calendar year, Respondent re-
ceived gross revenues in excess of $100,000, adver-
tised national brand products from which the gross
revenue exceeded $50,000, and subscribed to na-
tional news wire services.
We find, on the basis of the foregoing, that Re-
spondent 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
National Association of Broadcast Employees
and Technicians, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time radio pro-
duction employees employed by the Employer
at its facility located in Flint, Michigan, in-
cluding engineers, announcers, continuity em-
ployees, traffic employees, news employees,
assistant bookkeepers and part-time producers;
but excluding sales employees, head bookkeep-
er, temporary employees, guards and supervi-
sors as defined in the Act.
2. The certification
On July 31, 1979, 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 7, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on September 28, 1979,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 10, 1979,
and at all times thereafter, the Union has requested
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 December 26, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 26, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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.
MID-AMERICA MEDIA, INC. 1255
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Mid-America Media, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. National Association of Broadcast Employees
and Technicians, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time radio pro-
duction employees employed by the Employer at
its facility located in Flint, Michigan, including en-
gineers, announcers, continuity employees, traffic
employees, news employees, assistant bookkeepers
and part-time producers; but excluding sales em-
ployees, head bookkeeper, temporary employees,
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since September 28, 1979, 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 December 26, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Mid-America Media, Inc., Flint, Michigan, its offi-
cers, 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 National Associ-
ation of Broadcast Employees and Technicians,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time radio pro-
duction employees employed by the Employer
at its facility located in Flint, Michigan, in-
cluding engineers, announcers, continuity em-
ployees, traffic employees, news employees,
assistant bookkeepers and part-time producers;
but excluding sales employees, head bookkeep-
er, temporary employees, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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
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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its G 3076 Bristol Road, Flint, Michi-
gan, facility copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board "
MID-AMERICA MEDIA, INC I
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
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 National Association of Broadcast Em-
ployees and Technicians, AFL-CIO, as the ex-
clusive 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 employ-
ees 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 represen-
tative 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 agreement. The bargaining unit is:
All full-time and regular part-time radio pro-
duction employees employed by the Em-
ployer at its facility located in Flint, Michi-
gan, including engineers, announcers, con-
tinuity employees, traffic employees, news
employees, assistant bookkeepers and part-
time producers; but excluding sales employ-
ees, head bookkeeper, temporary employees,
guards and supervisors as defined in the Act.
MID-AMERICA MEDIA, INC.