Neptune Broadcasting Co.

National Labor Relations Board - Board Decisions

Jun 4, 1951

94 N.L.R.B. 1052 (N.L.R.B. 1951)

1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS of LAW
1. Confederacion General de Trabajadores de Puerto Rico (Autentica), is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Pablo
Marrero Santos, Manuel Colon Francia, and Tomas Figueroa, thereby discour-
aging membership in a labor organization, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in the unfair labor practices alleged in
paragraph V, subparagraphs (a), (b), and (d) of the complaint.
[Recommended Order omitted from publication in this volume.]
NEPTUNE BROADCASTING COMPANY and AMERICAN FEDERATION OF
RADIO ARTISTS, AFFILIATED WITH THE ASSOCIATED ACTORS AND
ARTISTES OF AMERICA, A. F. L., PETITIONER. Case No.4-RC-1020.
June 4, 1951
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harold Kowal, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock and Styles].
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 labor organization involved claims to represent certain em-
ployees 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 appropriate unit :
The Petitioner seeks a unit of full- and part-time staff announcers,
specialists, salesmen, and office clerical employees, excluding the man-
ager, janitors, technicians, guards, supervisors, and professional em-
ployees, or in the alternative, if an over-all unit is found inappropriate,
94 NLRB No. 136.
NEPTUNE BROADCASTING COMPANY 1053
seeks to represent each category in a separate unit or any combination
found by the Board to comprise an appropriate unit or units. The
parties have agreed to a unit of staff announcer-control board opera-
tors, excluding janitors, technicians, managers, and the continuity
director, but the Employer objects to the inclusion of salesmen, office
clericals, and specialists in the same unit with announcers. It argues
that salesmen, office clericals, and specialists have duties unrelated to
those of announcers. The Petitioner alleges that because of the small
size of the studio all employees do diversified and integrated work
closely related to broadcasting and should therefore be included in
one unit.
The Employer is a New Jersey corporation with its only place of
business at Atlantic City, New Jersey, where it operates small radio
stations WFPG and WFPG-FM. It presently has a collective bar-
gaining agreement covering its technicians but there is no history of
collective bargaining with respect to employees in the unit sought.
The desire of the Petitioner to include salesmen and office clericals
in a unit with announcer-control board operators clearly does not
conform to the well-established bargaining pattern in the radio broad-
casting industry.
There are three announcer-control board operators who work from
36 to 40 hours per week. They perform their duties while seated at
the control board where they manipulate the dials and switches on the
board while speaking into the microphone. In addition to the control
board operation, the announcers operate turntables and make tape
and wire transcriptions. Traditionally, announcers have considered
themselves as belonging to separate units from those of salesmen and
office clericals, and the Board has recognized their separability in pre-
vious decisions.' Accordingly, we are of the opinion that a separate
unit of announcer-control board operators is appropriate for the
purposes of collective bargaining.2
Customarily there have been three salesmen employed on a com-
mission basis with a guaranteed monthly income. They spend ap-
proxinmately 2 hours each day at their desks in the studio and the
remainder cf their time outside selling. There is evidence that at the
time of the hearing two of the salesmen had resigned, but the Emn-
ployer stated that lie contemplated the complete reorganization of the
staff and the ultimate hiring of replacements. The office clericals
perform the usual clerical duties involved in the operation of a radio
station. They work at the studio and are salaried employees. There
appears to be no close community of interest existing between office
1 Badger Broadcasting Company, 64 NLRB 1456; Delaware Broadcasting Company,
82 NLRB 727
International Broadcasting Corporation ( Radio Station KWKH), 67 NLRB 1227
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clericals and the salesmen which would warrant their inclusion in the
same unit. We therefore find that separate units of office clericals
and salesmen 3 are appropriate for the purposes of collective bargain-
ing under Section 9 (b) of the Act.
There are approximately eight individuals referred to in the record
variously as special program announcers, special agents, or specialists.
The specialists initiate and put on their own personal programs which
consist primarily of news broadcasts, interviewing, and, in several
instances, musical entertainment. They receive no salary from the
Employer. Their compensation is dependent upon the sale of their
programs to a sponsor either through their own efforts or through the
Employer's sales department. When a sponsor is secured the specialist
receives a talent fee generally billed to the sponsor by the Employer.
If he has sold his own program independently, the specialist also
receives a regular selling commission. The Employer does not deduct
social security, withholding or other employee benefits from the
amounts paid to the specialists.
The Employer contends that the specialists are not employees within
the meaning of the Act on the ground that they are "independent
workers" over whom the Employer exercises no control. We find no
merit in this contention. It is clear that these employees conduct
their special programs as an integral part of the Employer's broad-
casting business. Necessarily, they are subject to the Employer's power
of selection and retention as desirable additions to its regular broad-
casting schedule. Their services are utilized by the Employer for the
avowed purposes of building audiences and selling advertising, com-
mon objectives in the broadcasting industry. As are the other broad-
casting employees, the specialists are required to conform their pro-
grams to the rules and regulations of the Federal Communications
Commission. The Board has previously held that staff and special
program announcers 4 and or employees who announce, deliver news,
speak, read, recite, or perform sound effects, including those who play
transcriptions or records 5 may constitute a separate appropriate unit
for the purposes of collective bargaining. We do not believe that the
specialists in the instant case are any the less employees of the Em-
ployer because of the amount or method of their compensation.' We
3 In the event the Regional Director' s investigation in connection with the election in
the salesmen ' s unit discloses that, in fact, there is only one employee in this category, he
is directed to report this fact to the Board and not to conduct any election in this unit.
TVCAU, Inc, 93 NLRB 1003
5 The Valley Broadcasting Company , 87 NLRB 1144.
c Some of the specialists do not rely on this work as their principal means of livelihood,
e. g , a newspaper publisher presents a newscast, a hotel director of social activities
presents a women ' s program , a professional singer and dancer present primarily a record
show, and a group of "teen ageis " present an amateur show. This factor, however, does
not derogate from their right to representation. Silverwood'a, 92 NLRB 1114 , Southern
Desk Company, 92 NLRB No. 137.
NEPTUNE BROADCASTING COMPANY 1055
conclude that the interests and duties of the specialists are sufficiently
similar to those of the announcer-control board operators to be in-
cluded in the same unit.
The Petitioner would exclude from this unit three high school
students who, it contends, are not engaged in their specialist duties
for a livelihood. However, the Board has never denied representation
to employees because of their status as students? Although the stu-
dent specialists in the instant case have not secured sponsors for their
programs, the record indicates that efforts are being made to sell their
programs to suitable sponsors. Under these circumstances, we find
that the student specialists have a substantial interest in the compensa-
tion and working conditions of the employees in this unit and shall
include them.
There remains for consideration the inclusion or exclusion of the
following dispiited employees :
Program director. The Petitioner desires the inclusion of this em-
ployee in the announcer-control board operators' unit, whereas the
Employer contends he is a supervisor and urges his exclusion. The
program director arranges the program schedule from week to week,
assigns the announcers to their time of broadcast, handles all news-
paper advertising, interviews prospective employees, and recommends
their hiring. In addition to his duties as program director, he per-
forms the duties of an announcer-control board operator. He receives
it higher pay than the other announcer-control board operators, con-
sults with the general manager concerning the work of other an-
nouncers, and discusses problems concerning the operation of the
Company with the station manager. We find that he is a supervisor
and shall exclude him from the unit."
Secretary. The Employer opposes the inclusion of the secretary in
any unit contending that she is employed in a confidential capacity.
Her duties comprise acting as a receptionist and switchboard operator,
typing the station manager's letters and correspondence with the
stockholders, and typing all correspondence, contracts, and proposals
dealing with labor relations between the Employer and the represen-
tatives of the employees. As she acts in a confidential capacity to
the Employer's official handling labor relations, we find that she is
a confidential employee and shall exclude her from the unit of clerical
employees .9
Continuity traffic supervisor. Both parties have agreed to exclude
this employee as a supervisor. The record shows that she hired and
now supervises the traffic clerk. We find that she is a supervisor and
shall exclude her from the unit.
' South Georgia Pecan Shelling Co , et al ,, 85 NLRB 591.
W WEZ Radio, Inc, 91 NLRB 1518.
'Phillips Chemical Company, 90 NLRB No. 76, and 91 NLRB 568.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auditor.-This employee who the Employer contends is a confi-
dential employee handles all billings to advertisers, prepares the
financial statements of the network, calculates daily income at the
station, and prepares the monthly statement of income and expenses
which she turns over to a certified public accountant. The Board has
held that the preparation of such data as done by this employee does
not render such employee a confidential employee within the Board's
definition of that term. Therefore, we shall include her in the
clerical unit io
We find that the following employees of the Employer at its radio
stations WFPG-FM at Atlantic City, New Jersey, excluding all con-
fidential and professional employees, guards, watchmen, and super-
visors, constitute separate units appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
(1) All announcer-control board operators and specialists, ex-
cluding the program director.
(2) All office clerical employees including the auditor, but excluding
the secretary and continuity traffic supervisor.
(3) All salesmen.
[Text of Direction of Elections omitted from publication in this
volume.]
10 Federal Telecommunication Laboratories , Inc., 92 NLRB 1395.
ROCKAWAY NEWS SUPPLY COMPANY, INC. and NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK AND VICINITY and ROBERT LEON
BROWN, JOHN BRUCATO, ARTHUR CROMEYN, FRANK LEHMAN AND
MILWARD QUINEY. Cases Nos. 2-CA.-617 and 2-CB-190. June
5,1951
Decision and Order
On October 27, 1950, Trial Examiner James J. Fitzpatrick issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the copy of
the Intermediate Report attached hereto. Thereafter both Respond-
ents filed exceptions and the Respondent Company filed a supporting
brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
94 NLRB No. 156.