Perry Broadcasting

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1140 (N.L.R.B. 1990)

1140
300 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 An election was held December 8, 1989, in the unit found appropriate by
the Regional Director. The ballots were impounded.
2 The unit found appropriate comprises all the employees of both stations.
The Regional Director excluded several people because they were independent
contractors, casual employees, or seasonal employees. No request for review
was filed as to the exclusions.
3 Bernard and Jane Perry, the president and the treasurer, are not engaged
in day-to-day supervision.
4 The Employer also has a national sales manager who works by herself.
5 The one exception is on-air employee Robert Angel who works 30 to 40
percent of his time on sales. Like other announcers he is paid a salary for
his announcing work, and like other sales employees he is paid a commission
for his sales work. Because he spends a substantial part of his time on an-
nouncing work, he is a dual-function employee whom we will include in the
unit we are finding appropriate.
Perry Broadcasting, Inc. and Newport Broadcast-
ing, Inc. and Local 1228, International Brother-
hood of Electrical Workers, AFL–CIO, Peti-
tioner. Case 1–RC–19325
December 31, 1990
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On November 9, 1989, the Regional Director for
Region 1 issued a Decision and Direction of Election
finding that the petitioned-for unit limited to on-air
personnel was inappropriate and directing an election
in an overall unit including on-air programming em-
ployees, sales employees, the receptionist, and the traf-
fic manager. The Petitioner filed a timely request for
review of the Regional Director’s decision, contending
that the petitioned-for unit limited to on-air personnel
is appropriate. The Employer filed a brief in opposi-
tion. On December 8, 1989, the Board granted the Pe-
titioner’s request for review.1
The Board has considered the entire record in this
case, including the brief on review, and has decided to
reverse the Regional Director’s conclusions and to find
that the petitioned-for unit of on-air personnel is appro-
priate.
The Employer operates two radio stations out of a
studio on the second floor of a commercial building in
Newport, Rhode Island. WADK is an AM station with
a news, talk, and music format. It operates during day-
light hours. WOTB is an FM station with a jazz and
new age music format. It operates 24 hours a day, but
during off hours the station broadcasts a satellite pro-
gram produced in Minneapolis, Minnesota. No on-air
personnel are present when the satellite program is
broadcast. The parties stipulated that the unit includes
employees of both stations.
The unit found appropriate by the Regional Director
includes nine full-time and two part-time on-air an-
nouncers, six sales employees, the traffic manager, and
the receptionist.2 The unit sought by the Petitioner is
limited to the 11 on-air announcers.
General Manager Wayne Wunsch is in charge of the
day-to-day operations of both stations and supervises
both the on-air and the sales employees.3 Business
Manager Joan Dreger reports to Wunsch and super-
vises the traffic manager and the receptionist. Although
on-air and sales employees are commonly supervised
by Wunsch, program directors and sales managers play
an intermediate role in coordinating the Employer’s
operations. For example, Robert Angel as program di-
rector for WADK, Tom Kogut as news director for
WADK, and Steve Bianchi as program director for
WOTB oversee the operations of the radio programs.
The sales managers, one for each station, tell employ-
ees what accounts to call on, give advice about sales
methods, and critique sales employees’ work. The par-
ties agree that neither the program directors nor the
sales managers are supervisors.4
On-air personnel are engaged in programming and
producing broadcasts from several studios at the Em-
ployer’s facility. The amount of time spent on the air
varies with the format presented, including talk shows,
news programs, interviews, and music. On-air per-
sonnel engineer their own broadcasts. Engineering in-
volves adjusting controls to regulate the broadcast
sound, playing recorded music, and airing taped com-
mercials. Music is played according to a music log
prepared by an on-air employee. For commercials, an-
nouncers follow a log prepared by the traffic director.
On-air employees engage in various promotions and
contests. Some gather and edit news stories. Announc-
ers present some live commercials, which they read
from a script. Most commercials are taped. On-air em-
ployees produce those commercials based on produc-
tion orders from sales employees. All full-time an-
nouncers are salaried, and the two part-time announc-
ers are hourly paid. On-air personnel work a variety of
hours to meet programming needs. They do not inter-
change with sales employees or perform sales work.5
The Employer hires only experienced on-air personnel.
Sales employees sell commercial air time for both
stations. Their regular hours are from 8:30 a.m. to 5:30
p.m., although they sometimes work at other times to
call on clients. Sales employees are paid draws against
their commissions. The sales managers are additionally
paid a salary. The sales personnel receive the same
fringe benefits as on-air personnel. Because sales em-
ployees’ principal duty is to sell commercials, they
spend a substantial though unspecified amount of time
away from the Employer’s broadcast facilities. The
Employer does not require prospective sales employees
to have experience.
After securing sales contracts with clients, sales em-
ployees will sometimes write the advertising copy. It
appears from the record as a whole, however, that
more commonly they fill out a production order in
which they write down what they want in a commer-
1141PERRY BROADCASTING
6 The only other example of an employee other than an on-air employee
broadcasting live was a prank played on the receptionist by one of the an-
nouncers.
7 100 NLRB at 239, quoting from the dissent in Hampton Roads, 98 NLRB
1090 (1952), which the Board adopted in the later Hampton Roads decision.
cial, how many voices should be used, and what kind
of sound effects or music they want. Production orders
are given to on-air personnel to write the scripts. Once
scripts are written, the commercials are actually pro-
duced by on-air personnel. In producing commercials,
the on-air employees do not regularly use other em-
ployees’ voices, although they have done so on occa-
sion because they liked the sound of the other employ-
ee’s voice or because they wanted a nonprofessional
voice. Sales and on-air employees also work together
on station promotions and contests. It appears that their
interaction is similar to that in the production of com-
mercials. Sales employees do not substitute for or
interchange with on-air employees. They are not regu-
larly heard on the air live. They have only infrequently
broadcast live. For example, during a remote broadcast
at a client’s place of business, a sales employee may
interview the client.6
The traffic manager works from 9 a.m. to 5 p.m.
She enters information from advertisers’ contracts into
a computer which generates the daily commercial log.
On-air announcers use the log to determine when to
broadcast commercials. The traffic manager prepares
bills for the clients based on the log. She also sched-
ules the times for on-air promotions and contests. She
receives the same fringe benefits as other full-time em-
ployees.
The receptionist works different hours on different
days and is considered a part-time employee. She an-
swers the telephones, opens mail, greets visitors, and
does typing. As a part-time employee, she does not re-
ceive fringe benefits.
The Regional Director found that, in the cir-
cumstances of the instant case, the usual distinction be-
tween on-air and off-air employees had ‘‘broken
down’’ and was outweighed by the commonality of in-
terests among all the stations’ employees. Citing KJAZ
Broadcasting Co., 272 NLRB 196 (1984), the Regional
Director found that only an overall unit was appro-
priate. We disagree, and for the following reasons find
that the stations’ on-air personnel retain their distinct
community of interest and may therefore constitute a
separate appropriate unit.
In Hampton Roads Broadcasting Corp., 100 NLRB
238, 239 (1952), the Board found ‘‘that when an em-
ployee regularly appears before the microphone, it is
that factor, alone, and not his other duties, which gives
rise to the community of interest which warrants his
inclusion in the announcers’ unit.’’ That decision was
based on the finding that on-air employees possessed
a special talent: ‘‘Voice, diction, personality, the abil-
ity to persuade through the spoken word—these are the
tests by which announcers are judged, and these are
qualifications wholly unrelated to the jobs performed
by . . . others.’’7 The Board has followed Hampton
Roads in subsequent cases. For example, in Pulitzer
Publishing Co., 203 NLRB 639, 641 (1973), the Board
respected ‘‘[the] recognized distinction for bargaining
purposes in the radio and television industry between
[off-air employees] and announcers or broadcasters
who are generally considered ‘talent.’’’
Although the panel majority in KJAZ, supra, found
that a unit limited to on-air announcers was inappro-
priate, they expressly disclaimed any intent to overrule
Hampton Roads. (272 NLRB at 197 fn. 10.) Rather,
the Board concluded that the usual distinction between
on-air and off-air employees had ‘‘broken down’’ be-
cause off-air employees regularly worked with on-air
employees in producing commercials, editing copy, re-
working sample tapes, completing the play list, record-
ing telephone announcements, issuing press releases,
and other activities. More specifically, sales employees
spent 50 percent of their time at the studio, wrote al-
most 75 percent of the advertising copy, and had fre-
quent and daily contact with the programmers in pro-
ducing commercials. One sales employee spent 20 per-
cent of his time taping commercials for on-air use.
Other employees also regularly worked with on-air em-
ployees; for example, two traffic employees worked
with on-air employees in producing commercials. The
receptionist also spent at least 2 hours a day working
with the programmers. Thus, the Board concluded that
there was a close functional relationship among all the
employees, and that there was no clearly evident delin-
eation of job duties or functions.
We find that KJAZ is distinguishable. KJAZ is a nar-
row exception to the long-recognized distinction for
bargaining purposes between on-air and off-air em-
ployees. Although the distinction in this case may be
somewhat blurred, we find, contrary to the Regional
Director, that it has not ‘‘broken down’’ as found by
the Board in KJAZ.
The principal factor that distinguishes this case from
KJAZ is the much more limited role that sales employ-
ees have in producing commercials. In KJAZ the sales
employees wrote nearly 75 percent of the advertise-
ment scripts. Here, although the sales employees some-
times write scripts, the record fails to show that they
do so with any regularity or frequency. Rather, the reg-
ular method is that sales employees submit production
orders, based on the sales contracts and their discus-
sions with clients, from which the on-air personnel
write scripts and produce the commercials. In KJAZ
one sales employee regularly taped commercials for
on-air use. Although on-air employees in this case oc-
casionally use off-air employees for special non-
professional voices in taping commercials, the record
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 General Manager Wunsch testified that ‘‘certainly [on-air announcers]
would be the ones to produce the commercial once the script is written.’’
9 Contrary to the suggestion in KJAZ, 272 NLRB at 197 fn. 6, we find the
different methods of compensation material.
10 Although the on-air announcers and sales employees have the same super-
visor, Wayne Wunsch, the impact of this factor is diminished by the coordi-
nating roles played by the nonsupervisory program and sales managers.
fails to show that this is done with any degree of regu-
larity or frequency. Here, the on-air employees are re-
sponsible for the actual production of commercials.8
By contrast, in KJAZ on-air and off-air employees
were jointly responsible.
Other factors support the application of the Hampton
Roads distinction in this case. On-air employees are
hired for their talents. The Employer requires on-air
employees, but not sales employees, to have experi-
ence. Sales employees and announcers do not inter-
change work. Indeed, it is unusual for on-air employ-
ees of one station to fill in even for on-air employees
at the other station because of their ‘‘different talents,’’
as General Manager Wunsch testified.
On-air announcers work irregular hours geared to
the programs they air. Other employees generally work
regular hours. Full-time announcers are paid salaries.
Sales employees are paid commissions. This difference
is illustrated by the way in which the one dual-function
employee is paid. He receives a salary for on-air work
and commissions for sales work. There is no evidence
that sales employees receive additional compensation
when they sometimes write advertisement scripts or
when they are infrequently heard on the air, either in
taped commercials or live.9 Other community-of-inter-
est factors present here, such as common supervision10
and uniform benefits are not sufficient to find that the
Hampton Roads distinction between on-air and off-air
employees has been eviscerated.
For the reasons stated above, we find that the on-
air personnel have retained their distinct community of
interest recognized in Hampton Roads, supra. Accord-
ingly, we reverse the Regional Director’s decision and
shall remand the case to her for further appropriate ac-
tion.
ORDER
This case is remanded to the Regional Director for
Region 1 for further appropriate action consistent with
this Decision on Review and Order.