Golden West Broadcasters-KTLA

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 760 (N.L.R.B. 1974)

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden West Broadcasters-KTLA and Directors
Guild of America , Inc., Petitioner. Case
31-RC-2724
December 16, 1974
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
Upon a petition duly filed under Section 9 (c) of the
National Labor Relations Act, as amended , a hearing
was held before Hearing Officer Trudi C. Ferguson of
the National Labor Relations Board on various dates
between April 24 and June 7 , 1974. Following the hear-
ing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations , Series
8, as amended , and by direction of the Regional Direc-
tor for Region 31, this proceeding was transferred to
the Board for decision.
The Employer and Petitioner filed briefs in support
of their positions.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearings and finds that they are free
from prejudicial error . They are hereby affirmed.'
Upon the entire record in this proceeding , the Board
finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The Petitioner seeks to represent a unit of all staff
directors employed at television station KTLA in Hol-
lywood, California.
The Employer contends that the proposed unit is
inappropriate for collective-bargaining purposes be-
cause the staff directors are either supervisors or
managerial employees and hence excluded from the
coverage of the Act.
The Employer , a California corporation with its
principal office in Los Angeles , California , is engaged
in the business of television and radio broadcasting and
related activities . KTLA, one of the three departments
I The Employer's request for oral argument is hereby denied inasmuch as
the record and briefs adequately set forth the contentions of the parties.
within the television division of the corporation, is an
independent television broadcasting station not associ-
ated with one of the major television networks. The
other two departments are Golden West Videotape and
Golden West Video Productions.
KTLA employes approximately 235 individuals, and
all three above-mentioned departments in the television
division utilize the services of the KTLA directors and
staff.
Functionally, KTLA is organized so that overall re-
sponsibility for station operation is vested in the general
manager and chief administrative officer, John Reyn-
olds. Reporting to the general manager are the seven
departmental heads, each of whom is designated as a
"manager" or "director." The departments are: (1)
sales department; (2) administration department; (3)
programming department; (4) production department;
(5) engineering department; (6) news department; and
(7) sports department.
The production department, which is headed by
Hector Highton, the production manager, includes
nine staff directors.
The staff directors' functions fall into three catego-
ries: (1) "A" board directing; (2) studio directing, that
is, directing live and videotaped programs and com-
mercials; and (3) directing of remote telecasts,
primarily sports and special events which occur away
from the studio premises.
"A" Board Directing
The daily broadcast schedule of KTLA is composed
of numerous elements such as films, videotapes, slides,
graphics, live material, and sound. Each of the elements
is created or stored at various locations. At the proper
time these elements are coordinated into a "program"
which is then broadcast. This coordination is accom-
plished through the use of an electronic and mechanical
console or controlboard known as the "A" board. The
operation of the "A" board is one of the major func-
tions of the directors, who follow a log or program
"routine" which sets forth in detail the sequence and
direction of each element for each specific program.
As mentioned above most of the elements which the
director coordinates are stored in different locations on
the studio premises. Thus, if particular material to be
broadcast has been prerecorded, the material will have
been placed on playback equipment. At the appropriate
time designated on the log the director "cues" the ma-
chine operator' to start the machine. Thereafter, the
material is "fed" from that location to the control
room. When the director sees the correct image, he
2 The operators include: (1) the videotape operator, (2) the film projec-
tionist, (3) the audio engineer, (4) the engineer in master control, and (5)
the engineer at the transmitter.
215 NLRB No. 141
GOLDEN WEST BROADCASTERS-KTLA 761
physically pushes a button on the "A" board, thereby
sending the image through master control to the trans-
mitter.
Studio Directing
The directors also direct programs which are pro-
duced in the studios of KTLA, which are either broad-
cast immediately or videotaped for broadcast at a later
time. There are also occasions when the studios are
used for the production of commercials or live special
events.
The director is assigned to the program at an early
stage of planning; his advice is sought with respect to
production techniques, equipment to be utilized, neces-
sary personnel, and execution on the air. Record tes-
timony indicates that after the studio facilities, equip-
ment, and engineering crews are scheduled or assigned
by the engineering and production departments, the
director initiates meetings with the crew to insure ade-
quate preparation and performance.
At the time of the actual production of the program
the director utilizes an electric voice communication
system through which he instructs each member of the
crew as to what he wants done and the manner in which
to do it.
In addition to KTLA-originated programming, the
station's studios are utilized for the production of com-
mercials. Jerry Birdwell, the director of program ad-
ministration, testified that the director meets with the
client for purposes of planning the commercial, and
recommends to the client the appropriate techniques
for preparing the commercial, as well as what equip-
ment to use and how to use it. The director then pro-
ceeds with the actual production of the commercial.
Remote Directing
Much of the programming originated by KTLA oc-
curs outside of its studios . These programs , called
remotes , include sports events, news, special events,
and other significant occurrences that take place out-
side of its studios.
According to the Employer a KTLA crew of approx-
imately 10 is used for remotes which are within 500
miles of Los Angeles . When a remote is used for a
sports event , the director normally functions as, a
producer/director , since a KTLA producer accompa-
nies the crew only 20 percent of the time on remotes.
The director at a remote telecast, especially when a
producer is not present , initially determines the pro-
gram content to be presented . Thus the director selects
camera positions and places the talent (the announc-
ers). The director insures that the telephone lines,
which are rented to carry the program image to the
studios, are operational . Prior to air time the director
ascertains that all technical, mechanical, and human
elements needed for the telecast are present. Record
testimony indicates that during the telecast the director
instructs the crew which shots to take and when to take
them, instructs the talent, and coordinates the insertion
of commercials and other elements.
It is clear from the record that normally the staff
directors at KTLA do not have the authority "to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign , reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances,
or effectively to recommend such action" within the
meaning of Section 2(11) of the Act.
KTLA directors, under normal circumstances, do
not have the authority to hire personnel. The Employer
presented evidence of emergency situations when staff
directors exercised a power to hire. However, this au-
thority was only of a sporadic and irregular nature. The
record also indicates that the directors' schedule is pre-
pared by the production department, without consulta-
tion with the directors. Moreover, engineering person-
nel, who work on the production crew with the
director, are assigned by the chief engineer, not the
director assigned to the program.
Evidence was proffered that the directors make writ-
ten discrepancy reports. These reports, which, accord-
ing to the Employer, must be prepared by the directors
at the end of each shift wherein problems occur, must
include not only the directors' description of the prob-
lem, but their evaluation of personnel involved, as well
as their suggestions for rectifying the problem. Never-
theless, the evidence fails to show that the discrepancy
reports have had any significant influence on KTLA's
personnel policies. Accordingly, we find that any evi-
dence of supervisory authority vested in the staff direc-
tors at KTLA is isolated and sporadic.'
As we mentioned in Westinghouse Broadcasting
Company, Inc. (WBZ- TV), 215 NLRB No. 26 (1974),
a very recent case, the "confusion regarding the alleged
supervisory authority of . . . directors stems from the
natural implications of their job title." However, we
have never considered titles as determinative of super-
visory status. The directors at KTLA do give instruc-
tions to crew members, but these instructions are rou-
tine or artistic in nature. They do not, in our opinion,
responsibly direct the other crew members. The direc-
tor is limited by station policies and the detailed log or
routine. Moreover, the record indicates that directors
do not consider themselves to be supervisors.
In WBZ- TV, supra, we also stated:
The mere absence of close supervision by recog-
nized station supervisors over individual produc-
tion crew operations does not per se clothe a
3 Meyer Supermarkets, Inc, 142 NLRB 513 (1963)
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
producer/director with the supervisory mantle.
The same is true of the fact that during slack local
production hours in late evening or on weekends
all program department supervisors may be absent
from the station while producer/directors remain.
The Board finds greater significance in the routine
or artistic nature of the jobs performed by the
producer/director,and their coworkers than in the
absence of detailed supervision.
Thus, we conclude from the entire record that the
directors at KTLA are not supervisors.' The directors
at KTLA function only as a part of an integrated pro-
duction team, similar to the producer-directors in
Westinghouse Broadcasting Company, Incorpor-
ated/KYW-TV, 209 NLRB 783 (1974), enfd. 503
F.2d 1055 (C.A. 2, 1974),5 and not as supervisors
of the team.
The Employer argues, in the alternative, that the
directors are managerial personnel. However, the
record testimony indicates that any decision made
by a director which touches on the prerogatives of
management is subject to the approval of undisputed
managerial personnel. Moreover, the directors must
adhere to established station policies, FCC regulations,
and predetermined program practices.
We find that while directors may exercise some dis-
cretion in executing their assignments, such discretion
is based upon artistic judgment and must not exceed
the bounds of detailed KTLA policies, determined by
others. Accordingly, we conclude that the subject di-
rectors are not managerial personnel.
4 Contrary to our dissenting colleague's implication, the question of
whether certain persons are supervisors within the meaning of the Act turns
not only on whether they had the authority, in the interest of the employer,
inter alia, responsibly to direct other employees, but also on the nature and
extent of that authority . Thus, the Board has held that one who possesses
and exercises only limited or sporadic authority to direct others is not a
supervisor. See, e.g., Highland Telephone Cooperative, Inc., 192 NLRB 1057
(1971). Similarly , an employee with special expertise or training who directs
or instructs another in the proper performance of his work for which the
former is professionally responsible is not thereby rendered a supervisor. See
United Electric Company, 194 NLRB 665, 670 (1971) (Member Kennedy
dissenting). This is so even when the more senior or more expert employee
exercises some independent discretion where, as here , such discretion is
based upon special competence or upon specific articulated employer poli-
cies. Madeira Nursing Center, Inc., 203 NLRB 323 (1973).
The March 27, 1972, memorandum from the Employer's general manager
to all staff directors , which the dissent cites as a "graphic example" of the
directors' supervisory authority, is unpersuasive in light of the record evi-
dence establishing that directors must follow precisely delineated employer
policies in virtually all matters . Moreover, the fact that an employer desig-
nates a person as being "in charge " of a crew or a shift does not per se vest
that person with supervisor authority. See Highland Telephone and United
Electric, supra.
Finally , we note that , contrary to our colleague 's assertion , the Board is
not departing from established precedent. Thus, in each of the cases cited
by our colleague in support of his assertion , the record established that the
directors and producer/ directors possessed sufficient authority to affect the
employment conditions and tenure of employees being directed. This is not
the case here.
5 See also Post-Newsweek Stations, Capitol Area, Inc., 203 NLRB 522
(1973).
Thus, we find that the following employees of the
Employer at its facilities in Los Angeles, California,
constitute an appropriate unit for purposes of collec-
tive-bargaining within the meaning of Section 9(c) of
the Act:
All staff directors6 employed by Golden West
Broadcasters at its television station KTLA in
Hollywood, California.
[Direction of Election omitted from publication.]'
MEMBER KENNEDY, dissenting:
My colleagues have found that the staff directors
employed by KTLA are not supervisors. I do not agree.
In a very recent case, Westinghouse Broadcasting
Company, Inc. (WBZ- TV),' the Board was faced with
essentially this same question. There, as here, my col-
leagues, relying heavily on the artistic nature of the
directors' functions and the "team concept"9 ap-
proach to employee management, refused to find
producer/directors at two television stations supervi-
sors. I find this rationale and approach to be anoma-
lous, whether applied to producer/directors or staff
directors, as in the subject case.
The term "supervisor" as defined in the Act10 has
always been read disjunctively. t l Thus, an individual
need exercise only one of the indicia listed in the section
to qualify as a supervisor.
Section 2(11) of the Act states that "[t]he term
`supervisor' means any individual having authority, in
the interest of the Employer, to . . . responsibly . . .
direct . . . if . . . such authority is not of a merely
routine or clerical nature.. . . ." (Emphasis supplied.)
My colleagues state that the staff directors at KTLA
do not "responsibly direct" employees. According to
the majority, any instruction given by the staff director
is "either routine or artistic in nature." Assuming,
arguendo, that the staff directors' instructions or direc-
tions are "only" artistic in nature, on what basis does
this automatically remove such directions or instruc-
tions from the realm of "responsible direction" as used
in Section 2(11) of the Act?
The record indicates that the staff directors' very
raison d'etre is to make the final determination as to the
form and nature of the image seen on the home televi-
sion screen. Thus, the staff director accomplishes this
task by "responsibly directing" the other members of
the telecast crew. This "responsible direction" is ac-
6 This title also includes directors who function solely as news directors.
7 [Excelsior footnote omitted from publication.]
$ 215 NLRB No . 26 (1974).
9 Post-Newsweek Stations, Capital Area, Inc., 203 NLRB 522 (1973);
Westinghouse Broadcasting Company, Incorporated/KYW-TV, 209 NLRB
788, enfd. 503 F.2d 1055 (C.A. 3, 1974).
10 Sec . 2(11).
I I National Welders Supply Company, Inc., 129 NLRB 514 (1960); Ohio
Power Company v. N.L.R . B., 176 F . 2d 385 (C.A. 6, 1949).
GOLDEN WEST BROADCASTERS-KTLA 763
complished by the use of preproduction briefing ses-
sions with the crew prior to the actual telecast. More-
over, during the actual "shooting" of the program, the
director, who is in communication with each of the
crew members, instructs (directs) them as to how and
when they are to discharge their duties. The director
instructs the audio engineer, where necessary, to raise,
lower, or otherwise adjust the sound level of the pro-
gram under way; he directs the cameraman where to
move, when to move, and what kind of shots to take;
he directs the stage crew as to what functions to per-
form and when to perform them; he instructs members
of the lighting crew to raise, lower, or otherwise correct
lighting; he instructs the technical director which but-
tons to push and when to push them; he instructs the
videotape film operators as to which material is to be
played and when to play it. The director determines
whether to use the slow motion ("instant replay") ma-
chine during sports telecasts, and instructs the machine
operator which scenes or events to replay and when to
replay them.
Thus, the staff directors are responsible for KTLA's
"on-the-air" operations, and its end product: a techni-
cally and artistically acceptable broadcast. A graphic
example of this responsibility is Employer's Exhibit 14
which is a March 27, 1972, memorandum from the
general manager to all staff directors. It states:
Effective immediately, the Director assigned to
on-the-air operations will be designated as Air Op-
erations Supervisor and will be responsible for all
questions and decisions relating to on-the-air opera-
tions during his shift.
Any problem that may develop or decisions that
require immediate answers should be directed to
him as the final authority." [Emphasis sup-
plied.]
In my opinion, the above mentioned responsibilities
are neither routine nor clerical. In part, they may be of
an artistic nature; however, Section 2(11) does not, as
I read the section, state that "responsible direction"
cannot be of an artistic nature. It only states that it
should not be routine or clerical, and that the in-
dividual should use "independent judgment."
Further, when KTLA is engaged in remote broad-
casting of one of the many sports programs in Los
Angeles," a staff director normally functions'as the
producer/director. In that capacity he uses "independ-
ent judgment" to insure that the rented telephone lines
are operational, determines when the lines should be
iz KTLA broadcasts approximately 150 sports events each year, including
the University of California at Los Angeles (UCLA) and the University of
Southern California (USC) football and basketball games, California Angels
baseball, Los Angeles Lakers basketball , Los Angeles Kings hockey, Pacific
Eight conference basketball, and UCLA and USC tennis and track events
opened, and ascertains that all technical, mechanical,
and human elements necessary for the telecast are pres-
ent. Moreover, if additional equipment is necessary,
the staff director arranges for such equipment. Thus,
directors have arranged for the rental of forklift trucks
to allow aerial coverage of baseball games, and for the
installation of additional television cables.
But for the Board's most recent decisions" in this
area, directors and producer/directors have repeatedly
been held to be supervisors. Great Western Broadcast-
ing Corp. d/b/a KXTV 192 NLRB 1203 (1971);
WTAR Radio-TV Corporation, 168 NLRB 976 (1967);
Great Western Broadcasting Corporation, d/b/a
KXTV, 139 NLRB 93 (1962); WTOP, Inc., 114 NLRB
1236 (1955); WTAR Radio Corporation, 100 NLRB
250 (1952); American Broadcasting Company
(KGO-TV), 94 NLRB 100 (1951); American Broad-
casting Company, Inc. (KECA-TV), 93 NLRB 1410
(1951); WCAU, Inc., 93 NLRB 1003 (1951).
It appears that my colleagues have based this change
in substantive law on a "team concept" approach.14
Thus, the majority states that the staff directors at
KTLA function only as part of an integrated produc-
tion team, and not as supervisors.
The approach of my colleagues denies the reality of
the situation. Here we are not dealing with an athletic
team. The outcome or results of this team's endeavors
is not a place in the top 10. What is at stake, when
KTLA televises a program, is the very economic well
being of the station. To say that some 375 hours of
sports programming per year is handled by a "team,"
with no management supervisor (no leader), is unrealis-
tic. KTLA exists to service the inhabitants of the Los
Angeles area as clearly set out in the Federal Com-
munications Act and the station's license , and to show
an economic profit. To insure such results, manage-
ment must insure adequate supervision of its em-
ployees. Yet, my colleagues would have us believe that
for something close to 50 percent of KTLA's on-the-air
time, there are no supervisors present at the
station. 's Moreover, this same no-supervision situa-
tion would also exist at 80 percent of the remote tele-
cast sites, which would include almost all sports and
special events telecast by KTLA.
Contrary to this concept that the staff directors are
only part of a team, and not the supervisors as defined
13 Westinghouse Broadcasting Company, Incorporated/KYW-TV, supra,
Westinghouse Broadcasting Company, Inc (WBZ- TV), supra
13 KYW- TV, supra, Post-Newsweek, supra.
i5 That the directors do, in fact, supervise all of KTLA's air operations is
unmistakably revealed by viewing the director's role during KTLA's eve-
ning and weekend hours of broadcasting The station 's normal.business
hours are Monday through Friday, 9 a in to 5 30 p in , it is only during this
8-1/2-hour workday that the general manager and department heads are
regularly present on the KTLA lot The station is on the air, however,
approximately 7 additional hours each weekday and even longer on week-
ends Thus, for more than 50 percent of KTLA's on-the-air time, a director
is the only person in charge of the on-the -air programming at the station
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Act, is the use of discrepancy reports by staff
directors . Thus discrepancy reports, which must be
prepared by the directors at the end of each shift
wherein any problems or difficulties occur , must in-
clude not only the director 's description of the prob-
lem, but their evaluation and/or critiques of personnel
involved as well as their suggestions for rectifying these
problems.
My colleagues have also suggested , in footnote 4,
that "the question of whether certain persons are super-
visors within the meaning of the Act turns not only on
whether they had the authority . . . responsibly to
direct other employees , but also on the nature and
extent of that authority ." Furthermore , they contend
that the March 27, 1972, memorandum , which sets
forth the supervisory authority of the staff directors, is
unpersuasive " in light of the record evidence establish-
ing that directors must follow . . . employer policies .
I find both of these arguments to be without merit.
In Arizona Public Service Company v. N. L. R. B., 453
F.2d 228, 230 (C.A. 8, 1971), the court stated:
Section 2(11) is to be read in the disjunctive, and
the presence of any one of the enumerated powers
is sufficient to render an employee a "supervisor."
N.L.R.B. v. Fullerton Publishing Co., 283 F.2d
545, 548 (9th Cir. 1960). The statute turns upon
the existence of a power and not the frequency of
its utilization . For example, an employee who has
the power to fire and hire other employees is
nonetheless a supervisor though he has never exer-
cised that power . See Ohio Power Co. v.
N.L.R.B., 176 F.2d 385 (6th Cir. 1949).
It is clear on the face of the record that staff directors
have the authority to "responsibly direct" employees
and that this authority is neither routine nor clerical.
Thus, this authority in and of itself is sufficient to
establish supervisory status since Section 2 ( 11) is read
disjunctively and the mere existence of power deter-
mines whether an individual is an employee or a
supervisor.' 6
My colleagues also contend that , since directors
"must follow precisely delineated employer policies,"
they are not supervisors . If this proposition were at all
accurate , the Act's clearly worded definition of a
"supervisor" would be destroyed . For only policy-mak-
ing individuals , at management 's highest levels, would
technically be supervisors . Understandably , this argu-
ment must be and is incorrect . In the subject case, the
staff directors do follow KTLA policies and FCC regu-
lations while fulfilling their supervisory functions, but
the fact that the staff directors carry out higher man-
agement corporate policies and observe Governmental
regulations is hardly a basis for a finding that they are
not supervisors.
Thus, for the foregoing reasons, I dissent from my
colleagues ' findings that the staff directors are em-
ployees and not supervisors within the meaning of the
Act. I would find them to be supervisors and accord-
ingly dismiss the petition.
16 Jas. H. Matthews & Co. v.,N.L.R.B., 354 F.2d 432, 434 (C.A. 8, 1965);
Ohio Power Company v. N.L.R . B., supra.