Starr KabL, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1979

239 N.L.R.B. 1251 (N.L.R.B. 1979)

STARR KABL, INCORPORATED
Starr Kabl, Incorporated and National Association of
Broadcast Employees and Technicians, AFLCIO,
Petitioner. Case 20-RC-14559
January 8, 1979
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.LO
On April 26, 1978, the Regional Director for Re-
gion 20 issued a Decision and Order in the above-
entitled proceeding in which she dismissed the peti-
tion because it is contrary to Board policy to certify a
representative for bargaining in a unit consisting of
only one employee. In arriving at this decision the
Regional Director excluded from the unit three em-
ployees that Petitioner claimed were members of the
petitioned-for unit of four persons. Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Petitioner filed a timely request for re-
view of the Regional Director's decision on the
grounds, inter alia, that she made erroneous findings
of fact and departed from officially reported Board
precedent.
By telegraphic order dated July 25, 1978. the re-
quest for review was granted with respect to the su-
pervisory status of Robert Beamish and David Obe-
nauf but was denied in all other respects.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the briefs of the parties, and makes the following
findings:
The Employer operates a radio station in San
Francisco, California, with production studios at 632
Commonwealth Street and a transmitter and broad-
cast studio on KROW Island. The Petitioner seeks to
represent a unit composed of four persons. As indi-
cated in footnote I, supra, the exclusion of Harry
Webster is not now before us. The remaining three
persons are: Robert Beamish, director of engineer-
ing; David Obenauf, chief engineer; and David Bab-
cock, engineer. Having found Beamish and Obenauf
to be supervisors within the meaning of the Act, the
IPetitioner also contended in its request for review that the Regional
Director improperly concluded that Harry Webster did not share a con.mu-
nity of interest with, and hence should not be included In. the petltioned-for
unit. As review of this matter was previously denied, it is not before us now
Regional Director dismissed the petition because
only one employee (Babcock) remained in the peti-
tioned-for unit.
The Regional Director found, and the record
shows, that Beamish, Obenauf, and Babcock have
primary responsibility for the maintenance and re-
pair of the Employer's electronic equipment. They
are also responsible for forecasting problem areas
and recommending the purchase of new equipment.
All three men are on call 24 hours a day and carry
voice beepers so that they may be contacted at any
time. They are directly responsible to William Clark,
the Employer's general manager.
In concluding that Beamish and Obenauf are stat-
utory supervisors, the Regional Director found that
they responsibly direct Babcock, that they have au-
thority to effectively recommend hiring of employees
and have done so, and that they attend management
meetings. Petitioner asserts that the Regional
Director's supervisory conclusion is unsupported by
the record evidence. We agree with the Petitioner.
In the first place, we are persuaded that any as-
signments or directions to Babcock by Beamish and
Obenauf were reflected of their greater seniority and
experience rather than indicative of supervisory re-
sponsibility. Thus, General Manager Clark described
Babcock as a "newly hired apprentice." Beamish,
however, has not only been a long-term employee of
the Employer but also a former corporate officer.
Beamish characterized his initial instructions to Bab-
cock as similar to those given Obenauf when the lat-
ter first came to work for the Employer: he famil-
iarized both men with the equipment, the repair
processes, and the job responsibilities. The working
relationship among the three men is also shown by
the similarities of their duties and responsibilities.
Thus, the Regional Director found, and the record
shows, that the three men perform similar duties:
they are responsible for keeping equipment in good
repair, forecasting problems, and recommending new
purchases. Obenauf testified that their duties were
virtually the same 99 percent of the time. In addition,
all three men are directly responsible to General
Manager Clark and they are all on call 24 hours a
day. In these circumstances, we find that any direc-
tions to Babcock by Beamish and Obenauf are based
on their greater seniority and experience rather than
responsible direction contemplated by Section 2(11)
of the Act.2
With respect to Beamish's and Obenauf's authority
to effectively recommend the hiring of employees,
the record shows that during their joint tenure the
Employer has hired two engineers. Marty Walker in
October 1976 and David Babcock in June 1977. Gen-
C'omau Tehom C(rporation, 219 Nl RB 688. 689 (1975)
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Manager Clark testified that he decided to hire a
third engineer to assist Beamish and Obenauf and
that he directed Beamish and Obenauf to obtain the
best qualified man in each instance. Clark, who lacks
engineering skills, did not participate in the inter-
views. Although Clark testified that Walker was on
the payroll before he met him, Clark acknowledged
that his signature is necessary before a new employee
is placed on the payroll. Instead, Babcock was pre-
sented to Clark as the best candidate for the job.
Thus it is clear from the record that the ultimate au-
thority to hire remained with General Manager Clark
and that it was pursuant to the directions of Clark
that Beamish and Obenauf interviewed Walker, Bab-
cock, and other applicants for the radio engineer
jobs. We further find that the recommendations re-
garding hire were predicated on the technical exper-
tise of Beamish and Obenauf (technical expertise that
Clark lacked) rather than on any real supervisory au-
thority which would affect the employment status of
Babcock.3
The final factor relied on by the Regional Director
to find Beamish and Obenauf to be statutory super-
visors is their attendance at management meetings.
However, the record evidence concerning these meet-
ings is vague and inconclusive. Thus, Clark testified
3Id The fact that both men-the Employer's only two radio engineers at
the time-were asked to interview applicants is consistent with the view that
Clark was seeking their technical expertise.
that meetings involving all management personnel
are held infrequently. It appears, instead, that he was
using the term "management meetings" loosely to
cover his meetings with Beamish and Obenauf. In
any event, the Board finds attendance at manage-
ment or supervisory meetings is no substitute for the
exercise of supervisory functions.4
In sum, we find that the record as a whole fails to
establish that Beamish and Obenauf possess suffi-
cient indicia of supervisory authority to warrant their
exclusion from the coverage of the Act. Therefore,
we find that a question exists concerning the repre-
sentation of the radio engineers of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act. Accordingly, we shall direct
an election by seci-et ballot in the following unit:
All radio engineers employed by the Employer
at its transmitter and studio locations in the Bay
Area, excluding all other employees including
announcers-operators, salesmen, office clerical
employees, guards and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
4 See Fred Rogers (Companv. 226 NLRB 1160. 1161 (1976).
Nor do we find that the record here establishes that Beamish or Obenauf
is a managerial employee. We note that Beamish was demoted from his
pOsition as a corporate vice president in November 1977, before the filing of
the petition herein Furthermore, there is no record evidence that either
Beamish or Obenauf has real or substantial discretion to pledge the
Employer's credit, absent established controls and the approval of others.
Nor do the) exercise discretion in policy matters as would a managerial
employee.
1252