National Public Radio

National Labor Relations Board - Board Decisions

Apr 21, 1999

328 N.L.R.B. 75 (N.L.R.B. 1999)

NATIONAL PUBLIC RADIO, INC. 75
National Public Radio, Inc. and National Association
of Broadcast Employees and Technicians, CWA,
AFL–CIO, Petitioner and EIT/DIST Technical
Representatives, Intervenor and Public Radio
Technical Employees Association, Intervenor.
Case 5–RC–14591
April 21, 1999
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered challenges in an election
held May 27, 1998, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Decision, Order and Direction of
Second Election. The revised tally of ballots shows 37
for the Petitioner, 1 for Intervenor EIT/DIST Technical
Representatives, 31 for Intervenor Public Radio Techni-
cal Employees Association, 3 against any participating
labor organization, with 5 challenged ballots, a sufficient
number to affect the election results.1
The Board has reviewed the record in light of the ex-
ceptions and brief and has decided to adopt the hearing
officer’s findings and recommendations only to the ex-
tent consistent with this decision.
The parties in this case stipulated to a unit description
including, inter alia, “all full-time and regular part-time
broadcast/recording technicians.” The Board agent chal-
lenged the ballots of three temporary broadcast/recording
technicians, at issue in this proceeding, because their
names were not on the Excelsior list. The hearing officer
found that the parties’ unit stipulation was not instructive
as to whether temporary broadcast/recording technicians
were included in the unit. The Employer has excepted to
this finding. We find merit to the exception.
Contrary to the hearing officer’s finding, we believe
the parties’ stipulated unit description is controlling and
would therefore sustain the challenges to the ballots of
the three temporary broadcast/recording technicians. The
stipulation expressly includes all full-time and regular
part-time employees in several specific classifications,
including broadcast/recording technicians. It further
excludes several other specific employee classifications
and “all other employees.” The dissent contends that the
stipulation is ambiguous with respect to the unit place-
ment of temporary employees because “the record con-
tains no employer definition of ‘regular part-time.’” We
disagree.

1 At the hearing, the parties stipulated that challenged voter Thom J.
Woodward was an eligible voter and that Stuart Rushfield was not an
eligible voter. Given our sustaining of the challenges to the remaining
three ballots (the three temporary broadcast/recording technicians),
Woodward’s ballot is not determinative.
There is clear, undisputed record evidence that tempo-
rary employees do not meet the the Employer’s defini-
tion for regular part-time employees.2 In this regard, the
Employer’s employee action forms expressly distinguish
between a full-time or part-time “temporary employee”
and a full-time or part-time “regular hire” (also denomi-
nated as “permanent hire” in some documents). It is
likewise undisputed that the Employer employed each of
the three challenged voters as a temporary employee,
using hiring procedures different from those required for
regular part-time employees.
Under the circumstances, we perceive no ambiguity in
the parties’ stipulation. The Employer has distinct sepa-
rate categories of regular and temporary employees. By
specifically agreeing to include only full-time and regular
part-time employees in certain classifications and to ex-
clude all other employees, the parties must have intended
the exclusion of temporary broadcast/recording techni-
cians. As the stipulation does not contravene any statu-
tory provision or established Board policy, we shall en-
force it by sustaining the challenges cast by temporary
employees Ellena, Hayden, and Tevault. Hotel Inter-
Continental Maui, 237 NLRB 906, 907 (1978).
Accordingly, the Petitioner having received a majority
of the valid votes cast, we shall issue the appropriate
certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for National Association of Broadcast Employ-
ees and Technicians, CWA, AFL–CIO and that it is the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time Engineers, Techni-
cians, Technical Directors, Electronic Engineers,
Broadcast/Recording Technicians, Bureau Engineers
and Bureau Broadcast/Recording Technicians, Satellite
Depot Technicians and Satellite Transmission Center
Technicians, and Tape Center Operators and Tape Cen-
ter Coordinators employed by the Employer in the En-
gineering and Operations Department and the Distribu-
tion Division at is Washington, D. C. office and its bu-
reaus in Los Angeles, Chicago, and New York; but ex-
cluding Quarter Masters, Satellite Depot Shipping
Clerks, Satellite Transmission Center Support Coordi-
nators, Engineering Services Assistants, Information
Technology Department employees, New Media De-
partment employees, all other employees, clerical em-
ployees, guards, and supervisors as defined in the Act.

2 We note that the express intent of the parties concerning the defini-
tion of job classifications sought to be included in the stipulated unit
may be determined by reference to the employer’s regular use of the
classifications in a manner known to its employees, industry practice,
and the Board’s established definitions of the classifications.
328 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
MEMBER LIEBMAN, dissenting.
Contrary to my colleagues, I agree with the hearing of-
ficer’s finding that the parties’ unit stipulation was not
instructive as to whether temporary broadcast/recording
technicians were included in the unit. I find Hotel Inter-
Continental Maui, 237 NLRB 906, 907 (1978), on which
my colleagues and the Employer rely, distinguishable.
It is well-settled that in stipulated unit cases, “the
Board’s function is to ascertain the parties’ intent with
regard to the disputed employee[s]. . . .” Tribune Co.,
190 NLRB 398 (1971). Applying this principle in Hotel
Inter-Continental Maui, the Board held that the parties’
unit stipulation covering “regular part-time” employees
did not include “oncall” employees. The facts of that
case showed that the employer had two categories of
part-time employees: (1) “regular part-time” employees,
who were guaranteed 20 to 30 hours of work per week;
and (2) “oncall” employees, who were only offered em-
ployment when there was a particular need for their ser-
vices. Because the descriptive language of the stipula-
tion (“regular part-time employees”) matched one of the
employer’s two categories of part-time employees, the
Board concluded that, by implication, the parties in-
tended to exclude the additional classification of “oncall”
employees. Thus, the Board reasoned that when the par-
ties stipulated that “regular part-time employees” were
included in the unit, they intended to adopt the em-
ployer’s definition of who was and was not a “regular
part-time employee.”
Here, the stipulation covers “regular part-time broad-
cast/recording technicians,” but, in contrast to Hotel In-
ter-Continental Maui, the record contains no employer
definition of “regular part-time.” Therefore, it is not
possible to ascertain the parties’ clear intent with regard
to whether the classification of temporary broad-
cast/recording technicians is to be included or excluded
from the unit.1 Accordingly, the stipulated unit is am-
biguous and it is necessary to apply a community of in-
terest test to determine whether employees in the dis-
puted classification belong in the unit. See R. H. Peters
Chevrolet, 303 NLRB 791, 792 (1991). For the reasons
stated by the hearing officer, I would find that the chal-
lenged voters share a community of interest with unit
employees and would include them in the unit.

1 Reference to the Employer’s employee action forms does not clar-
ify the parties’ intent with respect to the unit stipulation because the
terms used in the forms do not match the terms used in the stipulation.