Evans Broadcasting Corp.

National Labor Relations Board - Board Decisions

Dec 1, 1969

179 N.L.R.B. 781 (N.L.R.B. 1969)

EVANS BROADCASTING CORP. 781
Evans Broadcasting Corporation and International Station became operational, it was engaged in
Brotherhood of Electrical Workers, Local 4 , installing technical facilities, hiring personnel,
AFL-CIO Petitioner' and St. Louis Theatrical negotiating programming, and working in the fields
Brotherhood , Local 6, International Alliance of of promotion and engineering. At about the time the
Theatrical , Stage Employees and Moving Picture Station became operational, the Employer had
Machine Operators of the United States and revenues in excess of $100,000 on its books, which
Canada , AFL-CIO= Petitioner . Cases 14-RC-6191 consisted of both cash sales (about $50,000) and
and 14-RC-6213 trade arrangements or "trade-offs"; i.e., goods and
December 1, 1969
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Upon separate petitions duly filed under Section
9(c) of the National Labor Relations Act, as
amended, a hearing was held in these consolidated
cases on June 11, 12, and 25, 1969, before Hearing
Officer Michael J. Bobroff of the National Labor
Relations Board. Following the hearing, and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, by
direction of the Regional Director for Region 14,
these cases were transferred to the Board for
decision. Briefs have been filed by the Employer,
IBEW, and IATSE.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
these cases to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board finds:
1. The Employer contends that the instant
petitions are premature , in that its revenues to date
are not of such volume as to bring it within the
Board' s normal jurisdictional standards.
The Employer, Evans Broadcasting Corporation,
is a Delaware corporation engaged in the operation
of Station KDNL, a UHF television broadcasting
station in St. Louis, Missouri . The signal of the
Station covers a diameter of 120 miles, reaching 60
miles into Illinois and 60 miles west of the Station
in Missouri. There are 850,000 television sets within
the range of the signal, and it is anticipated that 60
percent of the sets have conversion dials to pick up
UHF signals. The Station is operating under a
temporary authorization from the Federal
Communications Commission. It hired its first
employees in November 1968, and during the period
between November 1968 and June 8, 1969, when the
' Hereinafter referred to as IBEW.
'Hereinafter referred to as IATSE.
services received by the Station instead of cash
(about $50,000). The record further shows that in
applying for a license from the Federal
Communications Commission, the Employer stated
that its anticipated revenues were in excess of
$200,000 per year.
Under the foregoing circumstances, we find that
the Employer's volume of business, whether actual
or projected,' satisfies the $100,000 communications
system standard we find to be applicable here.4 We
hold, accordingly, that the Employer is engaged in
commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction over its operations.
2. The Petitioners are labor organizations,
claiming to represent certain employees of the
Employer.
3. Questions affecting commerce exist concerning
the representation of employees of the Employer
within the meaning of Sections 9(c)(l) and 2(6) and
(7) of the Act.
4. The Petitioner in Case 14-RC-6191, IBEW,
seeks a unit of all employees at Station KDNL who
contribute to the presentation of, but do not appear
on, television programs, including engineers,
cameramen-floormen, and film editors, excluding,
inter alia , announcers, talent, and traffic employees
and salesmen in the sales department. The Petitioner
in Case 14-RC-6213, IATSE, on the other hand,
seeks a unit of cameramen-floormen and film
editors, excluding engineers and all other employees,
and argues that the engineers should comprise a
separate unit. The Employer agrees, generally, with
the position of IATSE, maintaining that only
separate units of engineers on the one hand, and the
cameramen-floormen and film editors, on the other
hand, are appropriate. There is no history of
collective bargaining with respect to any of the
Employer's employees.
As previously indicated, Station KDNL is an
ultrahigh frequency television station in St. Louis,
Missouri. The Station operations are divided into
six departments: engineering, production, film, sales,
business, and promotion. All departments are under
the overall supervision of Jack Petrik, the station
manager.
The engineers, eight in number, comprise all the
employees in the engineering department. They are
skilled technicians who operate the electronic
equipment and work- mainly in the master control
'See Northwest Smorgasbord, Inc, 163 NLRB 425
'Raritan Valley Broadcasting Company Inc, 122 NLRB 90.
179 NLRB No. 130
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area or at the transmitter. They are under the
immediate supervision of the chief engineer, work 37
1/2 hours per week, and receive a salary of $250
weekly. They bear the responsibility for handling the
technical operations of the station, and hold first
class FCC licenses. The engineers do not
interchange with cameramen-floormen. However,
the engineers set up the cameras in the morning;
and an engineer is assigned to direct the
cameraman-floorman in selecting shots, slides, and
film, and passing cue cards, during the daily stock
market show.
The Employer's four cameramen-floormen, who
are essentially stagehands, work in the production
department. They are responsible for operating the
camera heads during live commercials or during live
programs; setting up the props needed for
commercials or programs; lighting the props or
stages; building the sets; painting the flats and
assembling the furniture needed in the production of
live programs or commercials; and for making up
either tele-prompter copy or "idiot" cards for
cueing. They also give signs for timing during the
commercial or program; assist visitors to the
Station; and do some film work. The
cameramen-floormen are under the immediate
supervision of Jack Fansher, the production
manager. They spend their working time either in
the studio, a separate room, or in the filmroom, also
a separate room. The cameramen-floormen work 40
hours a week, and receive a salary of $150 weekly.
One of the four cameramen-floormen, John Miller,
generally spends about 50 percent of his time in the
film department assisting Dave Sullivan, the film
manager. The function of film editors is to edit,
splice, and cut the film. The film department is
essentially a segment of the production department.
In the light of the foregoing, we find, in
agreement with IBEW, that the integrated functions
of the cameramen-floormen, film editors, and
engineers who together comprise all the employees
who contribute to the presentation of, but do not
appear on, television programs; the fact that none of
the parties contends that a broader unit is
appropriate; and the absence of a bargaining history
indicate that these employees may appropriately
constitute a single-appropriate unit. On the other
hand, the separate location of their work, and their
separate duties, rates of pay, hours of work, and
immediate supervision, indicate that a unit of
cameramen-floormen and film editors, separate
from the engineers, as requested by IATSE and
contended by the Employer, may also be
appropriate. Under these circumstances, we shall
accord the cameramen-floormen and film editors an
opportunity to express their desires as to whether
they wish to be represented separately or as part of
the same unit with the engineers.'
The alleged supervisory status of Dave Sullivan:
The Employer contends that Dave Sullivan, the film
'The Pulitzer Publishing Company. 101 NLRB 1005
manager, is a supervisory employee. The Petitioner
IATSE, on the other hand, claims that Sullivan
possesses none of the supervisory indicia required by
the statute, and therefore, should be included in the
unit. The Petitioner IBEW takes no position, and
suggests that he be permitted to vote a challenged
ballot.',
Sullivan is currently the only full-time employee
in the film department. There is no evidence that
Sullivan has hired, discharged, or disciplined, any
employee, although he may be given such authority
if the staff is expanded in the future. As previously
indicated, John Miller, a cameraman-floorman,
spends about 50 percent of his time assisting
Sullivan. Although there is testimony that Sullivan
"has authority over Miller" during this time, there
is no evidence as to the nature of such authority.
Moreover, Sullivan does not appear to have
authority to assign overtime to Miller in the film
department. We find that no determination can be
made on this record as to whether or not Sullivan is
a supervisor. We shall therefore permit Sullivan to
vote subject to challenge.
The student trainee: Bill Rebbe, a student trainee,
voluntarily comes into the Station whenever he has
time in order to learn film work. He receives no
pay, and works no set schedule of hours. We do not
consider Rebbe to be an "employee" within the
meaning of the Act, and shall exclude him.
Accordingly, we shall direct elections in the
following voting groups at the Employer's television
station KDNL, St. Louis, Missouri, excluding from
each group office clerical and traffic employees,
professionals, announcers, talent, salesmen, guards,
and supervisors as defined in the Act.
Voting Group A: All cameramen-floormen and
film editors.
Voting Group B: All engineers.
If a majority of the employees in voting group A
select IATSE, they will be deemed to have indicated
their desire to constitute a separate bargaining unit,
and a certification of representative will issue to
such organization for such group, which, under these
circumstances, is found to be an appropriate unit for
purposes of collective bargaining. If, in those
circumstances, a majority of the employees in voting
group B elect to be represented by the IBEW, then
a certification of representative will issue for that
Group as a separate unit, which is found to be a
unit appropriate for the purposes of collective
bargaining. However, if a majority of the employees
in voting group A do not vote for IATSE, the votes
of the employees in voting group A will be pooled
with those of voting group B which in those
circumstances, we find, is an appropriate unit for
bargaining.7 If a majority of the pooled ballots are
'The parties stipulated that the chief engineer , production manager, and,
producer -director are supervisors
'Pooled votes shall be tallied as lollows Votes for IATSE shall be
EVANS BROADCASTING CORP. 783
cast for the IBEW, a certification of representative
will issue to that organization in a unit of engineers, parties to the election should have access to lists of voters and theiraddresses which may be used to communicate with them Excelsiorcameramen-floormen, and film editors. Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
[Direction of Electionss omitted from publication.] 394 U S 759 Accordingly, it is hereby directed that election eligibility
lists, containing the names and addresses of all the eligible voters must be
filed by the Employer with the Regional Director for Region 14 within 7
days of the date of this Decision and Direction of Elections. The Regional
counted as valid votes, but neither for nor against IBEW All other votes Director shall make these lists available to all parties to the elections No
are to be accorded their face value , whether for representation by IBEW or extension of time to file these lists shall be granted by the Regional
no union . Director except in extraordinary circumstances Failure to comply with this
'in order to assure that all eligible voters may have the opportunity to requirement shall be grounds for setting aside the elections whenever
be informed of the issues in the exercise of their statutory right to vote, all proper objections are filed