American Broadcasting-Paramount Theaters, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1953

107 N.L.R.B. 74 (N.L.R.B. 1953)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining under Section 9 (b) of the Act,
at the Employer's River Works with plants in Lynn, Everett,
and Boston, Massachusetts, excluding from each group all
other employees, professional employees, guards, and super-
visors as defined by the Act:
1. All office clerical employees.
2. All production and maintenance employees, including
plant clerical employees, laboratory, and engineering assist-
ants.
[Text of Direction of Elections omitted from publication.]
AMERICAN BROADCASTING COMPANY, A DIVISION OF
AMERICAN BROADCASTING-PARAMOUNT THEATERS,
INC. and NATIONAL ASSOCIATION OF BROADCAST EM-
PLOYEES AND TECHNICIANS, CIO, Petitioner. Case No.
21-RC-3107. November 16, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Norman H.
Greer, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all office
clerical employees.' at the Employer's Los Angeles and
Hollywood, California, offices. The Employer seeks dismissal
of this petition on the ground that a single unit of these em-
ployees is inappropriate because there are as many as eight
separate and distinct "units" in the proposed unit, each of
which has a different community of interest. The Employer
refers to the following of its employees in its Los Angeles and
Hollywood offices: (1) secretaries; (2) telephone operators;
(3) continuity acceptance and literary rights department em-
ployees; (3) accounting department employees; (5) "production
employees";' (6) personnel department employees; (7) TV
'The Petitioner referred to these employees as office and clerical. These employees are
all plainly office, rather than plant, employees Pursuant to our recent policy of discon-
tinuing this term of "office and clericals," we will designate these employees as office
clericals. See D. M. Stewart Mfg. Co. 102 NLRB 461
2TV production analyst, assistant to the TV engineering director and the TV music librarian.
107 NLRB No. 20.
AMERICAN BROADCASTING COMPANY 75
music librarian ; ( 8) and those whom the Employer designates
as "office " but not "clerical" employees . 3 With certain
stipulated exceptions , the unit sought by the Petitioner includes
all office clerical employees of the Employer in the Los
Angeles area . There is no bargaining history for these em-
ployees. These offices comprise the headquarters of the Em-
ployer ' s western division and the radio station KECA and
television station KECA - TV, which are under the westerndivi-
sion . Each of the groups itemized above performs its respective
tasks in furtherance of these operations , as do all the other
employees whom the Petitioner seeks to represent . All these
employees are served by the accounting and personnel depart-
ments . The record indicates some interchange of employees.
All have the same benefits and working conditions . In view of
such similar working conditions and community of interest
among these employees , we find that the proposed office clerical
unit is appropriate. 4
There remains for consideration the Employer ' s contention,
opposed by the Petitioner , that certain employees should be
excluded.
Assistant and secretary to the director of TV engineering
(Elaine Rogers and Shirlee Rentz): The primary duty of the
assistant is to schedule the work assignments of the TV engi-
neers at the Employer ' s Hollywood operations , including their
overtime work . The quality of performance and the personality
of the engineers , as well as the size of the crew required for a
given show , their vacation schedules, and budget limitations,
are all considered in making up the work schedule. The
engineer ' s individual capabilities are appraised by the as sistant
through her own observation and reports from the technical
directors . She also makes arrangements to rent equipment;
apparently in these latter duties she is aided by the secretary.
In the event of the assistant ' s illness or vacation the scheduling
of the engineering crew is performed by the secretary, who
otherwise performs mostly the normal secretarial duties. We
are satisfied that the independent judgment required of the
assistant in assigning work to the engineers places her within
the definition of supervisor in Section 2 (11) of the Act, and we
will exclude her from the unit . As the secretary performs
these tasks only sporadically , upon the occasion of the as-
sistant's illness or vacation , we find in accordance with our
established policy , that she does not have supervisory status,
and we will include her in the unit.5
3 Examples of those whom the Employer would so designate are continuity acceptance and
literary rights department employees , the assistant to the TV engineering director, and the
TV music librarian
4The Crowell Collier Publishing Company, 102 NLRB 1236 ; Chrysler Corporation. 76
NLRB 55.
5 Coastal Plywood & Timber Company , 102 NLRB 300 In view of our determination we
deem it unnecessary to consider the Employer 's contention that the assistant should be
excluded for other reasons.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secretary to the director of engineering and special serv-
ices (Alice Box): When her supervisor is out of town, Miss
Box, besides her normal secretarial duties , is consulted upon
personnel matters by the heads of the general service depart-
ments, which consist of about 250 employees. For the first 6
months of the past year, while the present head of the steno-
graphic department was becoming acquainted with that position,
Miss Box handled the hiring in that department. During the
last 6 months , although that supervisor has taken over the
interviewing because Miss Box has been too busy with other
matters, she still consults with Miss Box in hiring decisions.
Similarly, the secretary is consulted by the heads of the
general service departments in cases involving discharges. We
find that Miss Box's functions in the hiring and discharge of
employees classifies her as a supervisor . Therefore , we will
exclude her from the proposed unit.
Accounting supervisor (Mabel Rappaport): Miss Rappaport
assists the auditor by doing accounting work herself and also
by helping to manage the accounting department employees.
She also checks up on the performance of the employees to
whom she has assigned work. Although she has little to do with
the hiring , she has the authority to recommend discharge and
has done so on occasion . According to her testimony , as well
as that of her superior, the controller, such recommendations
for discharge are given considerable weight. She recommends
with regard to transfers and promotions of employees in the
accounting department . Upon these facts we find that the ac-
counting supervisor is a supervisor within the meaning of the
Act, and we will exclude her from the unit.
Accounts receivable supervisor (Sylvia Palo): Accounts
receivable is a subdivision of the accounting department, in
which are 5 employees whose immediate superior is Miss
Palo. She disciplines these employees, and she has the power
to recommend their discharge . It is her responsibility to see
that the other employees in the department do the work
necessary . According to the controller, her superior, Miss
Palo's recommendations with respect to discharge , as well
as promotions and increases, are given great weight in the
making of the decision. We find that the accounts receivable
supervisor is a supervisor within the meaning of the Act, and
we will exclude her from the unit.
Cashier (Ula Lee Lloyd): Miss Lloyd is responsible for the
accounting department ' s disbursement . She assigns work to
her assistant and has made recommendations which have re-
sulted in a transfer or discharge of several assistant cashiers.
Both the general manager and controller of the western divi-
sion testified to the effectiveness of Miss Lloyd ' s recom-
mendation in the selection of an assistant . We find that she is
a supervisor , and we will exclude her from the unit.6
6On the last day of the hearing, June 9; 1953, there was no cashier's assistant. However,
it was anticipated that one would be selected soon.
AMERICAN BROADCASTING COMPANY 77
Alleged Confidential Employees
Telephone operators: The Employer argues that these seven
employees should be excluded from the unit as confidential
employees in view of the extensive use made by the Employer
of such communication because much of the Employer's labor
relations matter are handled, or at least controlled, from its
head office in New York by telephone. Their duties, however,
do not include the monitoring of the conversations. As the
Board has repeatedly held, the mere opportunity to overhear
conversations involving labor relations does not make tele-
phone operators confidential employees. Accordingly, we will
include them in the unit.7
Secretaries : By agreement of the parties , the secretaries
to the Labor Relations manager, the vice president, and the
general manager of the Employer's western division were
excluded from the unit as confidential employees. The Em-
ployer would also exclude as confidential employees the
secretaries to 16 other officials of the Employer ' s Western
Division. 8
Helen Gault, secretary to the Network and KECA program
director, testified that she has taken dictation from the
labor relations manager , western division . She couldnotrecall,
however, the last time she had done so, except that she knew
that she had not taken dictation on labor relations matters
from him during this current year. We find this evidence
insufficient to warrant a finding that Gault is a confidential
employee.
Ede Devins , secretary to director of news and special events,
shares with her superior the exclusive duty of receiving
messages termed as "confidential" by the Employer over a
private teletype machine. These messages in some cases
concern labor relations matters and originate in the Employer's
headquarters in New York City. As there is no evidence that
these "confidential" messages deal with the Employer ' s general
labor relations policies, and are not merely instructions to
its western division , we do not find that access to this informa-
tion warrants the exclusion of Miss Devins from the unit.'
The record further reveals that bargaining negotiations in
this Los Angeles area occur only for initial agreements,
between the Employer and the bargaining representative,
covering employees in the western division . These agreements
7 Titeflex , Inc., 103 NLRB 223; Pittsburgh Metallurgical Company, Incorporated, 100
NLRB 1450.
8Director of TV, western division ; director of radio , western division ; KECA- TV manager;
KECA manager; network TV program director , western division ; assistant network TV
program director , western division ; KECA-TV program manager ; network and KECA
program director ; controller , western division ; director of TV engineering; director of
radio engineering; director of TV promotion and publicity. director or radio promotion
and publicity ; director of promotion and publicity services ; film director; news and special
events director.
9Cases cited in footnote 10, especially Republic Steel Corp., infra.
337593 0-55-7
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are then incorporated into the Employer's nationwide master
agreements . All contract negotiations thereafter are held
on a nationwide level and do not directly involve these Holly-
wood officials . The local area negotiations are conducted
by the labor relations manager , under the direction of the
vice president and general manager of the western division,
who determine the acceptibility of the contracts negotiated.
The labor relations manager testified that he confers with
these 16 heads of departments , whose secretaries the Em-
ployer seeks to exclude , in order to "get all the particulars
and details pertaining to the working conditions" of the
employees under them . Some of the department heads have
accompanied the labor relations manager at times in these
local area negotiations , and, under a recent company rule,
they are now required to be present.
The department heads also handle grievances among em-
ployees within their own departments . The files of these
officials , to which their secretaries have access , contain
material relating to these activities of the western division
including the contracts themselves, grievances, company
interpretations of the contracts , and intracompany com-
munications . As the evidence fails to establish the per-
formance by these 16 western division officials of managerial
functions regarding the Employer ' s general labor relations
policies , we are not persuaded that their secretaries' role
is a confidential one which warrants depriving these employees
of their rights under the Act. 11 We will therefore include
them in the unit.
Personnel department employees : There are two personnel
assistants to the personnel director . They handle payroll
changes and the clerical work connected with employees
insurance policies , which tasks require the use of employee
personnel files , including records of wage increases. They
conduct the initial interviews for job applicants . This interview-
ing consists essentially of making sure that the application
form is correctly and sufficiently filled out . The assistants
note the appearance of the applicants and also classify them
according to their skills . " The personnel director herself
interviews the eligible applicants and sends those qualified for
the vacant position to the department head concerned.
Although these employees have access to records and report
which the Employer considers confidential, the record does not
to Standard Brands Incorporated , 101 NLRB 1349 ; Gulf States Telephone Company, 101
NLRB 270; Republic Steel Corporation , 91 NLRB 904, and the cases cited therein; Ball
Brother's Company Incorporated, 87 NLRB 34 ; Inter -Mountain Telephone Company, 79
NLRB 715
"One of the personnel assistants , when asked if anyone is ever hired by her without
consultation with anyone else, stated that "we might be told to select" and employee for
the mail room if that supervisor were not there. It is not clear from this evidence, or
from the record as a whole , how the actual hiring decision would be made in this situation
There is no contention that these employees are supervisors , nor do we find from this
record that they are.
AMERICAN BROADCASTING COMPANY 79
show that they act in a confidential capacity to per sons exercis-
ing managerical functions in the field of labor relations. We find
that they are not confidential employees. We shall, therefore,
include them in the unit. 12
Alleged Managerial Employees
Continuity acceptance and literary rights department em-
ployee s: There are 8 employees in this department. They review
broadcast material to determine if its adheres to the Em-
ployer's programing policies. For this function they are guided
by the Employer's "policy books," an exhaustive body of
doctrine. An experienced employee in this department may
reject material which doe s not conform to the Company's policy.
All of these employees receive salaries of from $200 to $300 a
month. In view of the extensive restriction placed upon these
employees' discretion in the application of the company policy
by its "policy book," we find that these employees do not
formulate , determine , and effectuate management policies within
the meaning of the Board's definition of managerial employee s.,13
TV production analyst (James J. Mandulay): As his title sug-
ge sts, Mr. Mandulay ascertains the actual cost of the "back lot"
television operations . He audits time cards and makes a labor
cost report , among others , to the controller . His regular duties
include the suggestion of procedures for improving the efficiency
of the organization and production. The suggestions often involve
the scheduling of hours worked by employees. He is responsible
to see that the collective -bargaining agreements in his area are
not violated, and he has helped formulate the Employer's inter-
pretation of the contract clauses. Mr. Mandulay's opinion as to
the desirability from management's standpoint as to certain pro-
posed contract clauses has been solicited by the western divi-
sion' s labor relations manager during contract negotiations. He
holds a B.S. in business administration. The Employer contends
that Mr. Mandulay should be excluded because he is a managerial
employee, as well as on the grounds that he is a confidential
employee, a professional employee, and "a production clerical"
employee. We are of the opinion that Mr. Mandulay'sduties,
involving to some extent the formulation and effectuationof the
Employer's policies, ally him more closely with management
than with the other employees whom the Petitioner seeks to
represent. 14 Therefore, we will exclude the TV production
analyst from the unit.
TV music librarian(Edith Jenkins): Miss Jenkins spends most
of her time choosing recorded music to suit particular produc-
tions. She also buys records to maintain the music library. In
12 Minneapolis-Moline Company, 85 NLRB 597; Bonwit Teller, Inc., 84 NLRB 414; see
Copperweld Steel Company, 102 NLRB 1229; cf Western Electric Company, Incorporated,
100 NLRB 420.
13 Wilson & Co , Inc., 97 NLRB 1388; A. S. Abell Company, 81 NLRB 82; Greensboro
News Company, Inc., 85 NLRB 54.
14Dortch Stove Works, Inc., 79 NLRB 1258.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selecting music for programs she sometimes works with pro-
gram directors and sponsor representatives. Although her
musical background is quite extensive, she testified that not a
great deal of musical knowledge is necessary for her duties.
She is paid $285 amonthandhasno assistant. About 25 percent
of her time is spent indirect clerical work. The Employer con-
tends that Miss Jenkins is a professional employee, and also that
her duties are more closely allied with production activities than
office or clerical work. Upon these facts we reject both of the
Employer's contentions and find that the TV music librarian is
properly included in the unit.
Accordingly, we find that the following employees constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All office clerical em-
ployees at the Employer's Hollywood and Los Angeles, Califor-
nia, offices, including employees in the continuity acceptance and
literary rights department, TV music librarian, secretaries to
department heads, 15 all mail room and message service em-
ployees, telephone operators, personnel department employees;
but excluding watchmen, guards, professional employees, the TV
production analyst, and all other employees and supervisors Was
defined in the Act. 17
[Text of Direction of Election omitted from publication.]
1s Except , as stipulated , the secretaries to the western division ' s labor relations manager,
general manager, and vice president.
16Including the accounting supervisor and the accounts receivable supervisor , assistant
to the director of TV engineering , secretary to the director of engineering and special
services , and the cashier.
17 It was stipulated by the parties that the following should be excluded from the unit:
page staff; tour people; guest relations personnel ; salesmen ; head of continuity acceptance
department ; music clearance supervisor ; guest relations supervisor ; mail room and mes-
senger supervisor ; production control manager; sales service manager of network radio;
sales service manager for KECA-TV; payroll supervisor ; supervisor of TV stenographic
department ; PBX supervisor; supervisor of announcers ; radio supervisor of announcers; radio
program operations manager; director of TV program operations; and the auditor.
SPECIALTY MANUFACTURING COMPANY, INC. and DIS-
TRICT 37, INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, AFL, Petitioner. Case No. 39-RC-659. November 16,
1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Wilton
Waldrop, hearing officer.' The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
1 At the hearing, the petition and other formal papers herein were amended to reflect the
correct name of the Employer.
107 NLRB No. 28.