Bi-States Co.

National Labor Relations Board - Board Decisions

Jan 22, 1957

117 N.L.R.B. 86 (N.L.R.B. 1957)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other cases, we have in this record nothing more than indications of
community of interest between "machine shop" and all other employees
in the existing bargaining unit. For the record also shows that em-
ployees from this department have occasion to work in other areas of
the plant; that, conversely, other employees sometimes work inside
this shop ; that the laborers are really a pool furnishing services where-
ever needed; and that seniority extends substantially across depart-
mental lines. On these facts, I can only conclude that the evidence
points to a pure production department, rather than to the functional
distinctiveness of which the Board spoke in its American Potash de-
cision. The Board does not sever one production department from
another.' I see no reason for departing from that time-tested rule
now.1'0 Accordingly, I would dismiss the petition in this case.
9 Deadale Hosiery Mills, 115 NLRB 228.
10 Bossert New Castle Division, Rockwell Spring & Amle Co., 111 NLRB 381.
Bi-States Company and International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO, Petitioner. Case No.
17-RC-225. January 22,1957
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 Harold L. Hudson,
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 meaning of the
Act.
2. The Petitioner contends (a) that the Intervenor is not a labor
organization, and (b) that it is not authorized to represent rank-and-
file employees because of illegal domination of its organization and
activities by supervisors. As to (a), it appears from the record that
the Intervenor exists for the purpose of dealing with the Employer
concerning grievances, labor disputes, wages, rates of pay, hours,
and conditions of employment, and is therefore a labor organization
as defined in the Act. As to (b), it is well established that a con-
tention alleging domination or assistance of a labor organization by
an employer is in effect an unfair labor practice charge, and therefore
not properly litigable in a representation proceeding.2 Any party
a The hearing officer permitted the intervention of KHOL-TV and KHPL-TV Employees
Union in this proceeding . It therefore becomes unnecessary to consider its written motion
to intervene, copies of which were filed with the Board.
9 Moreover, unlike the usual situation in which dismissal of the petition is sought be-
cause of the disqualification of the petitioning union, we have here a contention directed
117 NLRB No. 22.
BI-STATES COMPANY 87
asserting such allegations may, of course, litigate them in an unfair
labor practice proceeding designed to adjudicate such matters, and
if the allegations are found warranted by the evidence, obtain an
appropriate remedy in such a proceeding. Accordingly, we reject
both contentions.
We find that the Petitioner and the Intervenor are labor organi-
zations within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act, claiming to represent employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer operates KHOL-TV, its main television station,
near Holdredge, Nebraska, which combines its administration head-
quarters, office, studio, and transmitter tower; near Hayes Center,
Nebraska, approximately 50 miles away, the Employer operates
KHPL-TV, a satellite television transmitter consisting entirely of
transmission facilities and a transmitter tower.
The Petitioner and the Intervenor, KHOL-TV and KHPL-TV
Employees Union, agree that a single unit of the Employer's em-
ployees is appropriate, but disagree with respect to the size of the
unit. The Petitioner contends that the appropriate unit should con-
sist of the studio and engineering employees alone, and the Intervenor
contends that the appropriate unit should include all of the Em-
ployer's employees.' The Employer, other than stating that it does
not favor a "small unit," takes no unit position.
The Categories in Issue
The Petitioner would specifically exclude office clerical employees,
announcers, salesmen, the artist, and janitors, all of whom the Inter-
venor would include. The Petitioner takes no specific position re-
specting the placement of the traffic assistant and the promotion as-
sistant, whom the Intervenor would include. Also in issue is the
supervisory status of one engineer, whom the Employer would exclude.
These categories and individuals will be considered in their appro-
priate order.
0 fjice clerical employees : Office clerical employees include a recep-
tionist, who on occasion assists in sales promotion and traffic work; the
not toward impugning the validity of the petition but toward disqualifying an intervening
union from participating in any election to be directed . In other words , the petitioner is,
via the representation route, seeking to gain an election and at the same time to litigate its
allegations of unfair labor practices. To permit our representation procedure to be so uti-
lized is to contravene the Board 's established policy of not permitting the litigation of
unfair labor practices in a representation proceeding . We deem it salutary to adhere to
that policy. See Mengel Company, 114 NLRB 321 ; Stokely Foods, Inc., 81 NLRB 1103.
9 The Petitioner 's unit comprises 10 persons ; the Intervenor 's unit comprises 15
employees.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary to the station manager , who handles correspondence and
mail , occasionally fills in at the reception desk , and less frequently as-
sists in promotion and traffic work; and a bookkeeping assistant, who
prepares sales reports and does bookwork . As these employees are
primarily engaged in office work , we shall exclude them from the unit
hereinafter found appropriate , in view of their dissimilar functions
and work interests.4
The traffic assistant and the promotion assistant : The traffic assist-
ant types "on the air" copy and the station log and prepares traffic
reports for the traffic director , who is in charge of program schedul-
ing; in addition , she frequently assists in program work and occasion-
ally at the reception desk . The promotion assistant types and ad-
dresses promotion pieces, writes copy, assists in traffic and continuity
work, and works at the reception desk on Saturdays ; she is a part-time
employee who works 30 hours a week . As the traffic assistant and the
promotion assistant contribute directly to the production of television
programs and are of necessity in close contact with the other produc-
tion employees , we shall include them in the unit.'
Announcers : The four station announcers include a news director,
a farm director , a sports director , and a part-time announcer who
works weekends . On occasion , announcers assist in arranging studio
properties and, when not "on camera ," manipulate sound controls. In
view of their contacts with the other employees in the unit, and as no
labor organization separately seeks to represent them, we shall in-
clude the announcers in the unit.'
The artist : The Petitioner, although admitting that normally it
includes artists in units such as it now seeks, would exclude the artist
from the instant unit on the ground that he is an independent contrac-
tor. The artist draws slides and does lettering work as required by
the studio . He performs some of his work at his own shop outside
the Employer 's premises . He works part time for the Employer and
is paid on a piecework basis agreed upon between the Employer and
himself . The Employer furnishes his art material , carries him on its
payroll as an employee, and deducts social -security payments from his
pay. It is clear that the artist performs his work as an integral part
of the Employer 's television business . The mere fact that he has a
separate place of work, other means of livelihood , or a different
amount or method of compensation does not in our opinion render him
any less an employee of the Employer.' Accordingly, we find that
the artist is not an independent contractor, and we shall therefore in-
clude him in the unit.
4 See American Broadcasting Company, 107 NLRB 74; Neptune Broadcasting Company,
94 NLRB 1052.
s Southern Radio and Television Equipment Company, Television Station WTVJ, 107
NLRB 216.
6 The Scranton Times, 111 NLRB 780.
7 Neptune Broadcasting Company, supra.
BI-STATES COMPANY 89
Salesmen: The four salesmen, paid on the basis of a salary and com-
mission, have assigned territories within which they spend most of
their working time. In the event a salesman happens to be at the
studio, he may elect to interview a client on the air, in the course of
which he may assist the studio employees, but without extra compen-
sation. One of the salesmen, referred to by the Petitioner as the pho-
tographer-salesman, does photography work as an aid to his sales
work; he handles the photography work entirely on his own account.
We shall exclude the four salesmen, in view of their dissimilar work
interests.8
The alleged supervisor: The Employer adduced evidence purport-
ing to show that K. Cooper, one of its engineers, is considered by man-
agement as a supervisor and that Cooper, on 1 or 2 occasions, recom-
mended the discharge of employees who were in fact later discharged.
We have examined the evidence relative to the recommendations and
the discharges and find causal connection, if any, between them too re-
mote to warrant any conclusion respecting the character of the recom-
mendations. Cooper himself denied having the power of effective
recommendation or any other supervisory authority. In our opinion,
the Employer has failed to sustain its position that Cooper is a super-
visor. Accordingly, we find that K. Cooper is not a supervisor as de-
fined in the Act, and we shall therefore include him in the unit.
We find that all studio and engineering employees at the Employer's
KHOL-TV and KHPL-TV television stations, near Holdredge and
Hayes Center, Nebraska, respectively, including film department em-
ployees, photographers, the traffic assistant and the promotion assist-
ant, announcers, and the artist, but excluding office clerical employees,
salesmen, janitors,' the station manager, the traffic director, the pro-
motion director, the head bookkeeper, the chief engineers for KHOL-
TV and KHPL-TV, the production director, and all other 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.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK, dissenting in part :
I dissent from the majority decision in this case insofar as it accords
KHOL-TV and KHPI<-TV Employees Union, herein referred to as
the Independent, a place on the ballot in the election herein directed.
I submit that the majority's decision in this respect is contrary to the
long-established principle of the Board that "an organization domi-
Neptune Broadcasting Company, supra.
9 The Petitioner would exclude and the Intervenor include the janitors . The Employer
takes no position . The record shows that the janitors are husband and wife who set their
own work schedule as they are custodians for a nearby public school, working about 22
hours a week. In view of their diverse interests , we shall exclude them.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-hated by an employer [is] incapable of consideration as a bargaining
representative because of its inherent inability to bargain at arms
length," and therefore must be denied a place on the ballot in a Board
election.lo
On the basis of the evidence relating to the organizational structure
of the Independent adduced at the hearing, the conclusion is inescap-
able that the Independent is employer-dominated. Thus, the presi-
dent of the Independent testified that the Independent was formally
organized on March 31, 1956, 5 days after the Petitioner filed its
petition in this proceeding. He listed the officers of the Independent
as follows : President, Paul Freygang; vice president, Art Eckdahl;
board of trustees, Jack Lewis, Violet Aspergren, Lucille Erickson,
Art Eckdahl, and Edward Ronnberg; bargaining committee, Maurine
Eckloff, Marlyn (Moe) Milliken, and Jack Lewis. The parties stipu-
lated and the majority decision finds that the following named
individuals are supervisors: Maurine Eckloff, traffic director; Jack
Gilbert, station manager; Violet Aspergren, promotion director;
Lucille Erickson, head bookkeeper; Jack Lewis, chief engineer station
KHOL; John Seidie, chief engineer station KHPL; and Marlyn
(Moe) Milliken, production director. The record therefore shows that
of the 8 persons whom the president named as officers of the Inde-
pendent, 5 are supervisors. Control of the administration and policies
of the Independent, therefore, rests in the hands of representatives of
the Employer and clearly constitutes the Independent an employer-
dominated labor organization." Moreover, all three members of the
bargaining committee are supervisors, which means that if the Inde-
pendent wins the election and is certified, the Employer will be sitting
on both sides of the bargaining table in collective bargaining for rank-
and-file employees.
The majority decision holds, in effect, that the Board must close its
eyes to the employer-dominated character of the Independent which
is evident from its roster of officers, because it evidences an unfair labor
practice and may therefore not be considered by the Board in a repre-
sentation proceeding. This holding flies in the face of a long line of
Board precedent dating as far back as volume 6 (1938) of the De-
cisions and Orders of the National Labor Relations Board. Numerous
instances in which the Board has denied a union a place on the ballot
in the representation proceeding because of evidence of employer
domination may be found among the published representation case
decisions of the Board. For example, where the evidence in a repre-
sentation proceeding fortuitously disclosed that a labor organization
was conceived and organized by a supervisor,ia or its showing of in-
10 Columbia Pictures Corporation, et al ., 94 NLRB 466 , and cases cited in footnote 7
therein.
n See 0. Ray Randall Mfg. Co., 88 NLRB 140; Duro Test Corp ., 81 NLRB 976;
Kresge Department Store, 77 NLRB 212 ; McHale Manufacturing Co ., 67 NLRB 1266.
12 Douglas Aircraft Company, Inc., 53 NLRB 486.
BI-STATES COMPANY 91
terest was obtained through the assistance of a supervisor," or the
supervisory members of the organization outnumbered the rank-and-
file members and controlled its policies and practices,14 or its articles
and constitution showed on their face its subservience to the em-
ployer,15 the Board has found that the organization lacked the attri-
butes of a bona fide labor organization capable of serving as a repre-
sentative of employees and has refused to accord it a place on the
ballot in the election directed.
The principle dispositive of this case is well stated in the cited
Rochester and Pittsburgh Coal Company case where the Board said :
Thus, alth,,ugh in proceedings under Section 9 (c) of the Act
we do not ordinarily consider issues as to the character and
activities of the labor organizations seeking certification as the col-
lective bargaining representative of employees affected by the
proceedings, we will not, where the facts are admitted and their
import is unmistakable, knowingly accord a place on the ballot
in any election conducted by the Board to a labor organization
which is not capable of dealing on behalf of ordinary employees
at arm's length with their employer. [Emphasis supplied.]
Contrary to the assertion of the majority that this doctrine is not
applicable to intervenors as well as to petitioning labor organizations,
this principle has been applied by the Board to deny a place on the
ballot to both petitioning 16 and intervening unions.17 No logical basis
exists for distinguishing between the situation involving an inter-
vening organization and that involving a petitioner. The purpose
of the doctrine is to prevent Board certification of a labor organization
"which is not capable of dealing on behalf of ordinary employees
at arm's length with their employer." It is obviously immaterial
whether the certification of such an organization stems from an elec-
tion where it was on the ballot as a petitioner or as an intervenor.
The basic purposes of the Act are frustrated to the identical extent
in both situations.
The Board has even held that evidence may be adduced in a repre-
sentation case related to the allegation that one of the petitioning
unions was a successor or a continuation of a union previously dis-
established by the Board." In rejecting the contention that the Board
was precluded from taking this evidence as showing an unfair labor
practice in a representation proceeding, the Board said,
... in administering the Act, the Board has found it to be con-
venient and practicable, for the most part, rigidly to exclude
11 Toledo Stamping t6 Manufacturing Company, 55 NLRB 865 ; Desilu Productions, Inc.,
106 NLRB 179.
14 Rochester and Pittsburgh Coal Co ., 56 NLRB 1760 ; New York City Omnibus Corpo-
ration, 104 NLRB 579.
13 Phelps Dodge Corporation , 6 NLRB 624.
16 See, for example , Columbia Pictures Corporation , et al., supra.
11 See, for example , Douglas Aircraft Company, Inc., supra.
28 Baltimore Transit Company, 59 NLRB 159.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any proffered evidence of unfair labor practices in a representa-
tion proceeding, thereby leaving to the aggrieved parties the
right to file charges under Section 10. .. .
This recognition of the dual functions bestowed upon the Board
by the Act does not mean, however, that the respective subject
matter of proceedings under Section 10 and proceedings under
Section 9 must be segregated into mutually exclusive compart-
ments for administering the Act. .. .
The full freedom to choose bargaining representatives which
the procedure set forth in Section 9 of the Act is intended to
insure would be limited drastically were the Board powerless to
determine which unions shall appear on the ballot in elections
directed thereunder and thus be available for choice by employees.
The absence of such power might well result in the defeat of one
of the prime objectives of the Act, the promotion of peaceful rela-
tions between employees and employers to the end that inter-
ferences with the free flow of commerce may be lessened thereby.
Accordingly, the Board has found, on many occasions, that the
purposes of the Act would best be effectuated by enlarging the
usual scope of its inquiry in a representation proceeding, and
considering matters pertaining to unfair labor practices.
[Emphasis supplied.]
It is therefore clearly apparent that the general rule applied by
the majority in this case was not intended, as the case cited above
makes clear, to preclude the Board from recognizing the obvious
fact that a labor organization controlled by supervisors, as is the
Independent, which is seeking certification by the Board, is incapable
of dealing with an employer at arm's length and must, therefore,
be denied a place on the ballot. Accordingly, for the reasons set forth
above and because the evidence contained in the record clearly shows
that the Independent is dominated and controlled by the Employer's
supervisors, I would, in accord with well established Board policy,
refuse to accord the Independent a place on the ballot in the election
directed in this proceeding.
The Employers ' Liability Assurance Corporation, Ltd.' and Office
Employees International Union , Local 6 , AFL-CIO, Petitioner.
Case No. 1-RC-1p698. January V,1957
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 Thomas E. McDonald, hear-
3 The Employer 's name appears as amended at the hearing.
117 NLRB No. 24.