Kmbz/Kmbr Radio

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 459 (N.L.R.B. 1988)

KMBZ/KMBR RADIO
Booneville International Corporation d/b/a
KMBZ/KMBR Radio and Broadcast Engineers
Local 1259, affiliated with International Broth-
erhood of Electrical Workers, Petitioner. Case
17-UC-143
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On May 30, 1986, the Regional Director for
Region 17 issued a Decision and Clarification of
Bargaining Unit in the above -captioned proceeding.
In his decision , the Regional Director concluded
that the existing unit of all full -time and regular
part-time news editors employed by the Employer'
should be clarified to include the position of sports
producer/news writer.
Thereafter, in accordance with Section 102.67 of
the Board 's Rules and Regulations , the Employer
filed a timely request for review alleging that, con-
trary to the conclusion of the Regional Director,
the sports producers/news writers should be ex-
cluded from the unit . The Petitioner filed a state-
ment in opposition , contending that the Regional
Director's decision accreting these employees to
the unit was correct . By unpublished order dated
October 14, 1986, the Board (Member Stephens
dissenting) granted the Employer's request for
review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Employer operates two radio stations:
KMBZ, an AM station with a news, information,
and sports format; and KMBR , an FM easy -listen-
ing music station which also broadcasts some news.
In November 1985 the Employer acquired the
right to broadcast Kansas City Royals baseball
games and KMBZ , which had always broadcast
some sports , made plans to increase its sports cov-
erage with the beginning of the baseball season in
the spring of 1986. In March the Employer an-
nounced the posting of job openings for two sports
producers/news writers . Two news editors, Cook
and Poor , were awarded the positions in April
1986.
The news editors , who comprise the existing
unit, report to Managing Editor Holderby , who re-
ports to News Program Director Ludlum. They
work in the newsroom which they do not leave
except in an emergency. Their primary responsibil-
ities are to monitor the broadcasts of the stations
' The Petitioner was certified to represent this unit on March 21, 1986.
459
on the air, monitor the police "scanners," and "rip"
the wire services , that is , tear copy as it comes
from the wire service machines and place it in bas-
kets according to topics . News editors must also
record certain "audio feeds" or transmissions from
the wire services and other sources . They make
"beat calls" to police and fire agencies several
times each shift looking for news, contact various
newsmakers , and conduct telephone interviews.
Coordinating this material , the news editors deter-
mine what will be heard on the air.2 Generally the
news editors work only 40 hours per week with
their schedules being set by Holderby.
Like the news editors , sports producers/news
writers Poor and Cook do interviews , but are not
heard on the air. Unlike the news editors, they
work throughout the studio and are not confined
to the - newsroom . When the Royals are playing
home games , one works at the station and one at
the stadium . The sports producer/news writer
working at the stadium goes to the locker room
and sets up equipment, discusses with the announc-
er who will be interviewed , and makes arrange-
ments for the interview . Meanwhile , at the station,
the other will be putting highlights of the game on
tape , monitoring the game to make sure there are
no breakdowns , and answering the telephone for
the postgame call-in show.
The Employer presented testimony that the
sports producers/news writers are supervised by
Sports Director Davis who , along with his assist-
ant, Burley , does the sports announcing . Davis is
said to have the authority to make recommenda-
tions with respect to hiring and firing, but it does
not appear whether he is a statutory supervisor.
Poor and Cook work with Davis and Burley dis-
cussing with them what guests should be inter-
viewed on the shows , making arrangements for the
interview , selecting topics for specific programs,
and supplying Davis and Burley with interesting
facts and background material for the shows.
The sports producers/news writers, conferring
with Davis, prepare their own schedules based on
the team's schedule and turn them into Ludlum
once a week. On occasion , when the team is in
town, they work more than 40 hours per week.
Like the news editors , they are hourly paid and re-
ceive the same benefits. When Cook and Poor
became sports producers/news writers they re-
ceived the same pay rate they had received as
news editors with a promise of a review in 90 days.
2 News editors themselves are never on the air. The Employer 's on-air
performers are represented by the American Federation of Television and
Radio Artists (AFTRA)
290 NLRB No. 59
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the time of the hearing , the sports
producers/news writers had not as yet performed
any news writer functions . According to the Em-
ployer , as news writers they will be "reporters"
except that they will not be heard on the air. They
will be assigned to cover nonsports news such as
news conferences , hearings , and special events in
the community . In addition to their news writer as-
signments , in the off-season they will continue to
be involved in sports programming.
The Petitioner filed the instant petition seeking
to clarify the existing unit of news editors to in-
clude the two sports producers/news writers.
The Regional Director granted the requested ac-
cretion , noting that when new employees are found
to have common interests with members of the ex-
isting bargaining unit and would , if in existence,
have been included in the certified unit , accretion
is proper. Though noting that sports producers/-
news writers spend significant time away from the
station, the Regional Director found that both the
news editors and the sports producers/news writers
are housed in the same facility . Both classifications
provide support for on -air performers . The Region-
al Director relied on evidence that the Employer
considered rotating the sports producer function
among the news editors and eventually selected
news editors to fill the positions . He also relied on
Ludlum 's having the actual supervisory authority
over both groups and pointed out that both classifi-
cations enjoy the same wages and benefits and fre-
quently share the same working areas . Finally he
found that both classifications are instrumental in
determining what will be aired and how it will be
presented . Thus he concluded that there was a sub-
stantial community of interest among these employ-
ees that warranted the inclusion of both classifica-
tions in the same unit.
In requesting review , the Employer contends
that the sports producers/news writers do not do
news editors' work and have entirely different job
functions . Further, the Employer points out that
another producer, Morrison , whose duties are simi-
lar to those of the sports producers/news writers,
has never been considered to have functions or in-
terests similar to those of the news editors, and is
not included in the existing unit. Morrison pro-
duces the midday program which airs each day.
The record discloses that Morrison 's job is "quite
similar" or "about the same" as that of sports
producer/news writer in that she lines up guests
for interviews and arranges for them to appear on
the midday show . She provides the two midday
hosts with books , press releases , notes , and other
material necessary for the broadcasts and some-
times suggests questions for the hosts to use in
interviews.
We agree with the Regional Director 's conclu-
sion . In determining whether to grant a petition for
unit clarification grounded on accretion , the Board
examines whether the employees sought to be ac-
creted not only possess a community of interest
with the unit employees , but also lack a distinct
identity that would warrant placing them in a sepa-
rate units Here the petitioner seeks the inclusion of
a new classification-sports producer/news writ-
er-into the existing unit of news editors . Essential-
ly for the reasons stated by the Regional Director,
we find that the sports producers , who produce
material for the employees who broadcast the
sports shows , have a community of interest with
the news editors , who produce material for the em-
ployees who broadcast the news shows . In fact, as
noted above, the two employees who comprise the
new job classification were historically included in
the unit as two of the five news editors . On obtain-
ing broadcasting rights to the Kansas City Royals
baseball games , the station management found that
it must have personnel who could devote substan-
tial time and energy to servicing the new sports
shows . Because the skills and experience required
to broadcast these events were similar to those re-
quired for the broadcast of the news shows, it was
quite natural for the Employer to give the new as-
signment to the two news editors who had ex-
pressed an interest in it . But the reassignment did
not significantly change or erode the community of
interest which existed between the newly dubbed
sports producers and their news editor colleagues.
With respect to the Employer's suggestion that
the two sports producers have a separate identity
in a theoretical unit composed of them and an em-
ployee known as the midday producer-apparently
a preexisting , previously excluded job classifica-
tion-we find the record evidence too sketchy and
insufficient to conclude , as our dissenting colleague
does, that the sports producers share a "greater
community of interest" with the unrepresented
midday producer. Moreover , we believe that the
principal authorities relied on by our colleague are
distinguishable . In Armstrong Rubber Co., 180
NLRB 410 (1969), the record evidence clearly
demonstrated that the two units which the union
sought to accrete into a third unit had a long-estab-
lished and "close" community of interest with a
Could, Inc., 263 NLRB 442, 445 ( 1982); accord , Universal Security In-
struments Y. NLRB, 649 F.2d 247, 253 (4th Cir. 1981); NLRB Y. Stevens
Ford Inc., 773 F.2d 468 (2d Cir . 1985). See also Machinists Local 190 v.
NLRB, 759 F.2d 1477, 1481 (9th Cir. 1985) (the fact that the employees
proposed to be accreted do lack a distinct identity does not necessarily
require the accretion be granted , other factors may preclude accretion).
KMBZ/KMBR RADIO
number of the administrative employees who were
unrepresented . United Hospitals, 249 NLRB 562
(1980), is likewise distinguishable on its facts. There
the union sought to accrete into a multiemployer
service and maintenance unit (covering 21 employ-
ers) a group of admitting clerks and interviewers
employed by 2 employers who were consolidating
operations . The record showed that while some of
the admitting clerks employed at one division of
one of the consolidating employers were part of
the multiemployer unit , the remaining clerks and
interviewers working for the second division of the
first employer and those working for the second
employer were unrepresented . Moreover, an "over-
whelming majority" of the admitting clerks and
interviewers among all the 21 employing entities
comprising the multiemployer association had been
historically excluded from the unit . On this basis,
the Board declined to accrete those previously un-
represented admitting clerks and interviewers who
worked for the two consolidating employers.4 In
contrast , the Union here is not attempting to boot-
strap previously unrepresented employees into the
unit . Indeed, in a sense , all that is involved is an
effort by the Union to maintain continuity of repre-
sentation in the existing bargaining relationship.
We affirm the Regional Director and clarify the
unit to include the two employees now engaged in
sports producing/news writing activity.
MEMBER BABSON , dissenting.
Unlike my colleagues , I would not clarify the ex-
isting unit of news editors to include the two sports
producers/news writers . The Board has traditional-
ly required in accretion cases that the petitioned-
for employees share a very strong community of
4 It appears that those admitting clerks and interviewers who worked
for one of the divisions of one of the consolidating employers and were
represented by the Union still remained in the unit , despite the fact that
after the consolidation they would be working together in a single de-
partment and in the same offices with many of the unrepresented clerks
and interviewers . See 249 NLRB at 562-563. In other words , the close
community of interests which the represented clerks and interviewers
might be expected to develop with nonunion fellow clerks and interview-
ers would not result in exclusion from the multiemployer unit.
461
interest with the unit employees .' Such is not the
case here, where the record makes quite clear that
the sports producers/news writers have a greater
community of interest with the midday producer, a
nonunit employee. 2
The record shows that the sports producers/-
news writers and the midday producer work with
hosts to produce shows centered around an inter-
view format , while the unit employees primarily
coordinate breaking news for use on newscasts.
Employees in both positions deal with background
material and interview aids , while the unit employ-
ees deal with news . While all three classifications
work to support on-air performers , the duties of
the sports producers/news writers are more similar
to those of the excluded midday producer than to
those of the unit employees.
On prior occasions , the Board has not permitted
an accretion where the employees sought to be ac-
creted shared a close community of interest with
other employees whom the petitioner did not seek
to represent . For example, in Armstrong Rubber
Co., 180 NLRB 410 , 411 (1969), the Board dis-
missed the clarification petition because the tire
laboratory technicians and the scheduling depart-
ment employees sought to be accreted shared a
close community of interest with other nonunit em-
ployees who performed similar functions. More re-
cently, in United Hospital, 249 NLRB 562, 563
(1980), the Board rejected a similar attempt at
piecemeal expansion of the unit.
Based on the foregoing , I would not add the
sports producers/news writers to the existing unit
without a self-determination elections and , there-
fore, I respectfully dissent.
i Safeway Stores , 256 NLRB 918 (1981). See also Towne Ford Sales, 270
NLRB 311 (1984), enfd . sub nom Machinists District Lodge 190 v. NLRB,
759 F.2d 1477 (9th Cir. 1985) (the Board "has followed a restrictive
policy in finding accretion").
2 The midday producer position predated the Union 's certification, but
the record does not disclose why this position was excluded from the
unit. The Petitioner does not seek to clarify the unit to include the
midday producer.
a I find it unnecessary to decide whether a unit consisting of the
midday producers and the sports producers/news editors is appropriate
because this issue was neither raised nor litigated