Southwest Texas Public Broadcasting Council

National Labor Relations Board - Board Decisions

Jan 27, 1977

227 N.L.R.B. 1560 (N.L.R.B. 1977)

1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Texas Public Broadcasting Council and
KLRN Production Employees Guild , Petitioner.
Case 23-RC-4328
January 27, 1977
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Robert G. Levy II of
the National Labor Relations Board on January 15
and 16, 1976. Following the hearing 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 Director for Region
23, this proceeding was transferred to the Board for
decision. Thereafter, the Employer and Petitioner
filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding the Board
finds:
1. Southwest Texas Public Broadcasting Council
(herein also called KLRN-TV or the Employer) is a
private, nonprofit, tax-exempt Texas corporation; it
maintains and operates a noncommercial educational
television broadcasting station in the San Anto-
nio/Austin, Texas, area. The Employer contends it is
not an "employer" within the meaning of Section 2(2)
of the Act.
The Employer was established in 1961 through the
efforts of the University of Texas (herein called the
University), a political subdivision of the State of
Texas, and Robert F. Schenkkan, a university profes-
sor and director of the university radio station, in
conjunction with an existing educational television
corporation in San Antonio and various private
backers. KLRN-TV operates under a Federal Com-
munications Commission license held in its name and
currently owns approximately $1 million worth of
equipment, including a transmitter, a microwave
tower, and buildings and property at vanous broad-
casting studios. In fulfillment of its stated educational
purpose, KLRN-TV broadcasts a full spectrum of
i Programs broadcast in January 1976 included , inter a(ia, "Sesame
Street," "The Electric Company," "Six Wives of Henry Viii," "The Adams
Chronicles," "Washington Week in Review ," and the "Dance in America"
series
2 While the record is somewhat unclear on this point, it appears that the
superintendent of schools of the San Antonio school district selects a trustee
Another trustee , representing San Antonio College, also a public institution,
is apparently selected by that institution 's president
J These private institutions include vanous institutions of higher learning,
private colleges, and a private research institute Their respective trustee
representatives are selected by their respective presidents
4 The management contract requires that operating policies established
227 NLRB No. 217
educational programs from 7 a.m. to 12 midnight
daily.'
The Employer's articles of incorporation and
bylaws provide for a 50-member board of trustees
composed of 16 "institutional" and 34 at-large
trustees. The at-large trustees are appointed by the
board as a whole and serve staggered terms. Of the 16
"institutional" trustees, 8 are appointed by the board
of regents of the University, who are in turn appoint-
ed by the Governor of Texas; 2 are appointed by
public institutions in San Antonio; 2 and 6 are
appointed by various private institutions in San
Antonio.3 The University does not possess the
authority unilaterally to appoint at-large members.
Nor can it remove trustees in any category from the
board.
The board of trustees directs the Employer's
programming policies and establishes all personnel
and operational policies for KLRN-TV. Soon after
KLRN-TV was established, the board of trustees
entered into a management contract with the Univer-
sity, which has remained in effect at all material times
herein, by virtue of which the University manages the
station. Pursuant to this agreement, the Employer
pays the University a flat fee of $5,000 annually for
the University's "indirect costs" related to managing
and supervising KLRN-TV, and an additional, and
apparently negotiable, sum to defray "direct costs"
arising from the directing, programming, operating,4
and maintenance services provided by the Universi-
ty5 and its personnel. In return the University is
required to provide the Employer with studios and
production equipment. The use of these facilities is
restricted, however, to "such times and in such
manners as not to interfere with or reduce the normal
responsibilities of the Radio/Television activities of
the University." Thus, the Employer is allowed to use
part of the University's "Communications Building
B" which houses other non-KLRN communications
programs. In addition, the University is required to
make available the managerial services of the director
and the associate director of the University's commu-
nications center, Robert Schenkkan, and Harvey
Herbst, respectively, as well as the technical expertise
of the communications center's radio/TV engineer-
by the board of trustees are "mutually agreeable to the University "
However, there is no indication in the record that the University possesses or
exercises any veto power or otherwise controls the formulation of such
policies , including those related to labor relations matters, other than
through whatever influence the eight trustees appointed by the University's
board of regents may be willing or able to exert on its behalf
5 In fiscal 1961 the Employer budgeted $12 ,792 to the University to cover
these costs and in 1976 it budgeted approximately $15,000 However, a
recent reassessment of costs for physical plant maintenance and utilities for
KLRN studios led the Employer to increase this amount to $33,401 to cover,
in full, the University 's costs in operating and maintaining these facilities
SOUTHWEST TEXAS PUBLIC BROADCASTING COUNCIL 1561
ing director, Noyes Willett, and radio/TV/film
specialist, Billy Arhos.6 The University is reimbursed
by the Employer for a portion of the salaries of the
above individuals commensurate with the amount of
time which they devote to the Employer's opera-
tions.7
In its capacity as general managerial and executive
agent for the Employer, the University, pursuant to
the management contract, is further required to
prepare and submit for the Employer's approval a
detailed operating proposal and various comprehen-
sive budgets for each fiscal year. After the budgetary
proposals have been approved by the Employer's
board of trustees the University may incur obliga-
tions against the Employer and make purchases for
the Employer within the confines of the approved
budget. The Employer has custody of its funds and
maintains its own accounting records, thereby retain-
ing ultimate control over its finances. Further, the
University is contractually prohibited from spending
funds appropriated to it by the legislature of the State
of Texas to fulfill its contractual obligations with the
Employer and the Employer assumes the legal and
financial responsibility for any injury incurred by
individuals providing services under the contract or
for damage to any property used for the Employer's
operation.
In fiscal 1976, the Employer's total revenues from
programming were $3,028,981, of which $410,750
derived from grants from the Corporation for Public
Broadcasting, a private nonprofit corporation estab-
lished to promote the growth and development of
public broadcasting, and an organization called Pi
Beta Phi; $1,478,640 from a contract with the
Department of Health, Education and Welfare
(HEW)8 and $607,991 from contracts with the State
of Texas.9 Additional revenues of $530,000 are
derived from membership contributions, donations,
underwritings, advertising in a program schedule
published by the Employer, fundraising events, and
videotape rentals.10
6 There is no evidence that Herbst, Willett , and Arhos were trained by
Schenkkan or that these individuals are "concerned with the University's
curriculum" as the dissent would find.
7 In fiscal 1976 , this sum was budgeted at $51,347
8 The HEW contract provides funds for the production of "Carrascolin-
das," a bilingual multicultural television series for children from 8 to 10 years
of age. Under this contract, the Employer selects a project manager and TV
director subject to HEW 's approval which has apparently always been given
9 From 8 a.m. to 3 30 p.m. on weekdays during the school year, the
Employer broadcasts instructional TV programs for utilization by contract-
ing public and private elementary and secondary schools Payment is based
on a fee of 75 cents per student paid by the schools with matching funds from
the State An advisory committee composed of school district superinten-
dents works with the Employer 's personnel to establish programming
policies The dissent apparently refers to these funds in concluding that "A
not insubstantial part of the Employer's total budget" derives from the State
of Texas
10 The Employer has exclusive responsibility for producing all videotape
The Employer's board of trustees has designated
Schenkkan as president and general manager" and
delegated to him the authority to hire and fire
employees, establish working conditions, and set
wage rates. Schenkkan is directly responsible to the
board of trustees in establishing and implementing
such policies. The board of trustees has also appoint-
ed Herbst, the associate director of the communica-
tions center, vice president, and station manager of
KLRN-TV.12 Schenkkan has delegated to Herbst
responsibility for the day-to-day operations of
KLRN-TV. Herbst's responsibilities include produc-
tion of programs,13 the daily operation of the
transmitter and control room, and oversight of other
administrative and clerical details, as well as manage-
ment of the Employer's budget. Like Schenkkan,
Herbst, according to his testimony, is directly respon-
sible to the board of trustees, rather than to the
University, for the daily operations of the station.14
As the general manager of KLRN-TV, Schenkkan
has decided, on his own initiative, to adhere to the
University's hiring and employment policies where
practicable. Following this practice, the Employer
has occasionally utilized the University's personnel
office to secure applicants for some positions.15 All
applicants, regardless of how they are recruited, must
complete a KLRN-TV application, are interviewed
and hired solely by the Employer's personnel, and,
thereafter, receive a letter printed on the Employer's
stationery, confirming their employment, if hired.
Further, while KLRN-TV employees enjoy some of
the same benefits as university employees (sick leave,
reduced tuition, and university ID cards), the Em-
ployer's benefits package differs substantially from
that of the University. For example, the Employer
maintains a separate retirement fund for its employ-
ees who are not eligible to participate in the Universi-
ty's plan, offers different health and life insurance
benefits, and different holidays and vacations, and
sets its own scale of wages, which are paid out of the
Employer's central office by its own payroll officer.
The independence of the Employer's employment
broadcasts used as classroom and extracurricular aids for university
students.
11 Schenkkan spends 25 percent of his time working for the Employer and
thus a cor responding portion of the armual salary of $40,000 he receives from
the University is paid by the Employer.
12 While Herbst is paid through the Umversity and, like Schenkkan,
receives employment benefits from the University based on his total salary,
one-half of that amount , or $14,780, is paid by the Employer
13 Decisions as to program content or whether a particular program
should be broadcast are made by the Employer's professional staff, including
Schenkkan, Herbst, and various program directors Neither the University
nor its board of regents has veto power over the Employer's programming
policies
14 When the Union began its organizational campaign at the Employer,
for example, Herbst consulted with the board of trustees rather than the
University.
15 The actual number of employees hired by the University 's personnel
office comprises only one sixth of the Employer's total complement.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy is further exhibited by the fact that its policy is
set forth in various "policy memoranda" printed by
the Employer, as contrasted with the University's
separate and self-contained employee handbook. In
addition to the Employer's regular employees, indivi-
duals engaged in institutional internship programs,
two graduate students at the University and part-
time, work-study program students 16 were also
working for the Employer at the time of the hearing
herein.
The Employer contends that it is a political
subdivision of the State of Texas, on grounds that it
was created and developed by the University and
that, by virtue of its management contract with the
University and the University's representation on the
board of trustees, the University administers the
Employer's day-to-day operations, including its labor
relations policies. Alternately, the Employer contends
that it is a joint employer with the University because
the University's agents, Schenkkan and Herbst,
manage the Employer's operation and control its
labor relations policies. Finally, the Employer con-
tends that, although it meets the Board's discretion-
ary monetary jurisdictional standards, its primary
purpose is so intimately related to the exempt
educational purposes of the University that the Board
should decline to assert jurisdiction, citing, inter alia,
Overbrook School for the Blind, 213 NLRB 511 (1974).
As to the Employer's first contention, we find,
under the standards set forth by the Supreme Court
in N. L. R. B. v. The Natural Gas Utility District of
Hawkins County, Tennessee, 402 U.S. 600 (1971), that
the Employer is not a political subdivision. Thus, the
Employer was neither created directly by the State, so
as to constitute a department or administrative arm
of the government, nor is it administered by individu-
als who are responsible to public officials or to the
general electorate.17 Although the University, which
is clearly a political subdivision of the State of Texas,
was instrumental in establishing the Employer, owns
the facilities from which the Employer operates, and,
pursuant to the management contract, manages the
Employer's operation, it is clear that the Employer
was established as a private corporation under a
corporate charter bearing its own name, operates
under an FCC license also bearing its own name,
fully compensates the University for the use of its
facilities and personnel pursuant to the operating
agreement, and, as discussed below, controls its own
operations, including employment and labor rela-
tions policies, through its board of trustees. This
16 The record does not specify the number of individuals involved in such
programs , whether they are paid and, if so, by whom, or the duration of their
association with Employer In addition , it is not clear from the record
whether or not these individuals are employed in unit classifications. It is
clear, however, that college work-study personnel are specifically excluded
from the unit
board is composed of 50 members, a majority (34) of
whom are private citizens not appointed by or subject
to removal by the University. Of the remaining 16
institutional members, only 8 are appointed by the
University and 2 are appointed by public institutions
in San Antonio. Thus, only 10 of the 50 trustees are
selected by, but are not themselves, public officials
and no trustee is responsible directly to the public.
Significantly, both the representation of public insti-
tutions on the Employer's board of trustees and the
number of trustees appointed by such institutions are
determined solely by the Employer's own articles of
incorporation. is Based on the foregoing, and in the
absence of any evidence that the 10 institutional
trustees wield influence over the decisions and
policies of the board of trustees out of proportion to
their numbers, we find the Employer is not a political
subdivision of the State of Texas.
With respect to the Employer's contention that it is
a joint employer with, or controlled by, the Universi-
ty, we find that the Employer controls its own
operations, including those related to labor relations.
It is clear that the board of trustees controls the
financial aspects of the Employer's operation. Thus,
the University's expenditure of funds on behalf of the
Employer is restricted to the confines of a budget
which has received prior approval of the board of
trustees. Further, the Employer maintains its own
financial records which are not subject to review by
the University, pays for the use of the University's
equipment, facilities, and personnel pursuant to its
management contract with the University and as-
sumes financial responsibility for any damage to
persons or property. In addition, the University
makes no cash contributions to the Employer and is
contractually prohibited from committing any state-
appropriated funds to fulfill its contractual obliga-
tions with the Employer. Furthermore, the board of
trustees establishes all programming, personnel, and
operational policies of the Employer and there is no
indication that the University controls the formula-
tion of such policies other than through whatever
influence its eight trustees are willing or able to exert
on its behalf.
As to Schenkkan and Herbst, who admittedly are
university employees holding top managerial posi-
tions with the Employer, both were hired by and are
responsible to the Employer's board of trustees when
performing management function for KLRN-TV.
They are fully compensated by the Employer for their
services and are restricted in the implementation of
17 N.LR B v The Natural Gas Utility District of Hawkins County,
Tennessee, supra at 604-605
18 Minneapolis Society of Fine Arts, 194 NLRB 371 (1971)
SOUTHWEST TEXAS PUBLIC BROADCASTING COUNCIL 1563
policies and day-to-day management of the Employ-
er's operations by the parameters of general policy
established by the Employer's board of trustees.
Additionally, the management contract between the
University and the Employer protects the operations
of each party from interference by the other.
Similarly, there is nothing in the management
contract between the University and the Employer
which requires the Employer to follow the Universi-
ty's hiring and employment practices; rather, Schenk-
kan has, on his own initiative, followed such practices
and only to a limited extent. The Employer uses the
University's placement office infrequently and even
then the Employer's employees interview and hire job
applicants. Further, the Employer's benefit package,
including holidays and vacations, retirement benefits,
and life insurance benefits, differs substantially from
that of the University, which enumerates its employ-
ment practices in a separate handbook not utilized by
the Employer. Finally, the Employer sets its own
wage scale and disburses paychecks to its employees.
Based on the foregoing facts we find that the
Employer is neither controlled by, nor a joint
employer with, the University and that it maintains
sufficient control over its operation, including its
labor relations policies, to engage in effective collec-
tive bargaining. 19
Regarding the Employer's final contention that the
Board should decline to assert jurisdiction because
the Employer is an adjunct to or has a special
relationship with the University, we find that the
Employer's purpose is not intimately related to the
exempt functions of the University. The Employer's
relationship with the University is not legislatively
mandated, but is purely contractual.20 The Employ-
er's operational funds concededly exceed the jurisdic-
tional standard normally applied to the ra-
dio/television industry,21 and derive from diverse
sources, including several outside the State of Texas.
Further, while the Employer is involved in the
operation of an educational television station, its
programming is for the most part designed to serve
the general public. In addition, the KLRN-TV
employees in the unit sought are involved primarily in
production of television programs rather than in
aiding the University in performing its educational
function.22 In these respects the Employer is not
19 Bishop Randall Hospital, 217 NLRB 1129 (1975)
20 Compare, Transit Systems, Inc, 221 NLRB 299 (1975)
21 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958).
22 Compare , Current Construction Corp., and Samuel M Wagner, 209
NLRB 718 (1974).
23 Viewer Sponsored Television Foundation, Inc d/b/a KVST-TV, 217
NLRB 316 (1975), Pacifica Foundation -KPFA, 186 NLRB 825 (1970),
South Bend Broadcasting Corp and Michiana Telecasting Corp., 116 NLRB
1166(1956)
24 Rural Fire Protection Company, 216 NLRB 584 (1975); Overbrook
School for the Blind, supra
unlike other public radio and television stations over
which the Board has asserted jurisdiction.23 Under
these circumstances, we find that the Employer has
insufficient identity with or relationship to the
exempt purposes of the University to support the
conclusion that we should decline to assert jurisdic-
tion.24
In sum, we find that the Employer is not a political
subdivision of the State of Texas, nor subject to any
substantial degree of state control in its operations,
and is accordingly an employer within the meaning of
the Act. In addition, we find no support in the record
for the contention that the Employer is a joint
employer with the University. Finally, we find no
special relationship or intimate connection between
the services provided by the Employer and the
exempt functions of the University. Accordingly, as
the Employer is engaged in commerce within the
meaning of the Act, we find it would effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved herein claims
to represent certain employees of the Employer.25
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties at the hearing, the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time camera opera-
tors, crew chiefs, lighting technicians, technical
directors, directors' assistants , assistant directors,
boom operators, audio assistants, floor managers,
floor assistants, production assistants, and on-the-
job trainees within the production department
employed by Employer at its Austin, Texas,
facility, excluding all other employees, including
but not limited to, lighting designers, engineers,
writers, directors, producers, college work study
personnel, actors, musicians, singers, dancers,
clerical employees, employees in the costume,
prop, make-up, and scene department, graphic
artists, all managerial employees, professional
25 The Employer contends that Petitioner is not a labor organization and
additionally that Petitioner is unwilling to represent all employee classifica-
tions in the agreed-upon unit The record establishes that Petitioner has
employees participating in its organization which was formed for the purpose
of bargaining collectively with the Employer regarding wages, hours, and
working conditions . We therefore find Petitioner to be a labor organization
within the meaning of the Act. Additionally, we find that Petitioner's entry
into a stipulation expanding the unit beyond that originally sought indicates
Petitioner's willingness to represent alljob classification in the stipulated unit
found appropriate herein, and therefore find the Employer's contention in
this regard without ment
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , guards , watchmen , and supervisors, as
defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
MEMBER JENKINS, dissenting:
I would decline to assert jurisdiction over the
Employer. Contrary to my colleagues, I would find
that the University of Texas, admittedly a political
subdivision of the State of Texas and not subject to
the jurisdiction of the Board, has direct control and
supervision over the Employer's operations.
The factual situation here differs from the usual
noncommercial educational television station over
which the Board has consistently taken jurisdiction,
precedent upon which my colleagues rely, and in my
opinion not applicable in the instant case.
The record shows that the Employer is the brain-
child of the University and it would not have been
established, nor would it continue to exist, except for
its close functional relationship with the University.
Before commencing service before 1961, the Employ-
er entered into a written management contract with
the University which provides that the University
would manage and control the day-to-day operations
of the television station. The president and station
manager, Professor Schenkkan, is director for the
communications center of the University and is
chairman of the communications department, a
department closely involved with the work of the
station. Four of the station's top personnel were
selected and trained by Professor Schenkkan and are
concerned with the University's curriculum. The
University provides a substantial amount toward the
salaries of these personnel.
The Employer is housed in the communications
center located on the campus. A high portion of the
Employer's broadcast day is set aside for instruction-
al programs for school districts, the cost of which is
reimbursed by the State of Texas. The University and
the Employer jointly maintain a graduate program
for credit which in many cases is part of a doctorate
program. All of the closed circuit television used for
classroom purposes and special video instructional
programs used by the University are produced by the
Employer in accordance with the specifications of the
University.
A not insubstantial part of the Employer's total
budget comes from the State of Texas, and without
such funds it is doubtful if the station could exist.
Other operating funds are from public and govern-
mental sources, a type of funding not too different
from some departments within the University. Signif-
icantly, the Employer's charter provides that upon
dissolution or after a fixed period of time the assets of
the Employer become the property of the University.
From the above, I am convinced that meaningful
collective bargaining could not take place without
directly involving in major degree the University, a
political division of the State of Texas. Accordingly, I
would dismiss the petition.