Sunshine Broadcasting Co.

National Labor Relations Board - Board Decisions

Jun 7, 1949

83 N.L.R.B. 1244 (N.L.R.B. 1949)

In the Matter of SUNSHINE BROADCASTING COMPANY; HOWARD W.
DAVIS D/B/A THE WALMAC COMPANY, KCOR, INC.; AND ExPREss
PUBLISHING COMPANY, EMPLOYERS and .INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, LOCAL 60, AFL, PETITIONER
Case Nos. 39-RC-34,39-RC--37,39-RC-38, and 39-RC-39.-Decided
June 7,1949
DECISION
AND
DIRECTION OF ELECTION
Upon separate petitions duly filed, a hearing in the above-consoli-
dated cases 1 was held before James P. Wolf, hearing officer. The
hearing officer's rulings at the hearing are free from prejudicial error
and are hereby affirmed. At the hearing the Employer in Case No.
39-RC-34 moved to sever its case, and for a continuance, because it
had executed a contract of sale and filed an application with the Fed-
eral Communications Commission for transfer of ownership of Sta-
tion KTSA. This motion was referred to the Board. For reasons
hereinafter stated in paragraph V, below, the motion is hereby denied.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
Upon the entire record in this case, the Board makes the following :
FINDINGS OF FACT2
. I. THE BUSINESS OF THE EMPLOYERS
The Sunshine Broadcasting Company, a Texas corporation, owns
and operates a radio station in San Antonio, Texas, under the call
letters KTSA, on a power output of 5,000 watts during the day and
1,000 watts during the night. Approximately 50 percent of the sta-
a A petition in Case No. 39-RC-35 , involving Charles W . Balthrope d/b/a Radio Station
KITE , originally included in the consolidation , was withdrawn before the hearing with
the approval of the Regional Director. The Petitioner and Express Publishing Com-
pany , the Employer in Case No. 39-RC-39, have executed a consent election agreement.
Accordingly , the petition in Case No . 39-RC-39 is hereby severed and remanded to the
Regional Director for the Sixteenth Region for further action in accordance with the
aforesaid agreement.
2 The findings herein made are based on facts stipulated between the parties at the
hearing.
83 N. L. R. B., No. 172.
1244
SUNSHINE BROADCASTING COMPANY 1245
:tion's broadcast time is devoted to national network programs, 15
percent to local live programs, and 35 percent to recorded and tran-
scribed programs. It is affiliated with the Columbia Broadcasting
System and the Lone Star Broadcasting System. The station utilizes
the leased wire services of the Associated Press and the United Press
and facilities of the Southern Bell Telephone Company on local hook-
ups, remote broadcasts, and chain programs. During the preceding
year the gross revenue of this station was in excess of $250,000, of
which 47 percent was derived from sales to advertising agencies and
customers located outside the State of Texas. Purchases of recordings
and transcriptions from sources outside the State of Texas approxi-
mate $308 per month."
Howard W. Davis trading as The Walmac Company is an individual
enterprise operating two radio broadcasting stations in San Antonio,
Texas, Station KMAC, a standard AM station operating on a power
of 250 watts, and Station KISS, an FM station operating on a power
of 3,000 watts. The same personnel operate the equipment of both
stations which utilize the same office, studios, and building. There are
separate transmitters for each station and separate telephone lines
from the studios to each transmitter. Both stations are affiliated with
the Mutual Broadcasting System and approximately 40 percent of
their broadcast time, which is unlimited, is devoted to network or
national hook-tip programs. The Employer utilizes the Associated
Press wire service and the facilities of the Southwestern Bell Tele-
phone Company in its local and network broadcasting circuits. Dur-
ing the year 1948 the Employer's gross revenue was approximately
$200,000, of which 171/2 percent accrued from sales of advertising
and/or services to advertising agencies and other customers located
outside the State of Texas. During the same period the Employer
purchased recordings and transcriptions in the amount of approxi-
mately $3,600 from outside the State.
KCOR, Inc., a Texas corporation, operates a commercial broadcast-
ing station in San Antonio, Texas, under the call letters KCOR on a
power output of 5,000 watts during the day and 1,000 watts at night.
This station is independent and not affiliated with any national net-
'work or hook-up. However, it utilizes the leased wire services of the
Associated Press and the United Press and the facilities of the South-
western Bell Telephone Company in transmitting programs from its
, The Employer admits that its activities affect commerce but contends that the Board
I. without jurisdiction in the matter because there are only six employees involved and
they do not constitute a "substantial number of employees" as required by Section 9 (c)
(1) (A) of the amended Act. We find this contention to be without merit . We do not con-
strue the language of the section of the Act referred to as imposing any limitation on the
certification of a union as the collective bargaining representative of employees in an
appropriate unit merely because of the small number of employees in the unit . See Matter
,of Tennessee Valley Broadcasting Company, 73 N. L. R. B. 1509 ; Matter of Royal Tallow
'd Soap Co ., Inc., 78 N . L. R. B. 834.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
studio to its transmitter station. During the year 1948, the Employer's
-gross revenue was approximately $205,991 of which $20,000 accrued
from sales of advertising or radio time to firms located outside the
State of Texas.
Each of the above stations operates under licenses issued by the
Federal Communications Commission.
We find that each of the Employers herein is engaged in commerce
within the meaning of the Act-'
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employers.
III. THE QUESTION CONCERNING REPRESENTATION
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of their employees until the Petitioner has
been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the-Employers within the meaning of
Section 9 (c) (1) and Section 2 (6) -and (7) of the Act.
IV. THE APPROPRIATE UNITS
A. Cases Nos. 39-RC-34 and 39-RC-37
In Case No. 39-RC-34 (KTSA) and in Case No. 39-RC-37
(KMAC-KISS) the Petitioner seeks units of all radio technicians 5
employed at each of the Employers' transmitters and studios located
in San Antonio, Texas, with certain exclusions as to which the parties
-are in agreement. Both Employers agree with the general composition
of the units as requested by the Petitioner. The Employer in Case
-No. 39-RC-34, however, objects to the designation of these employees
as "technicians," contending that they should be termed "operators"
As there is no dispute as to the employees involved, and as the Em-
ployer in question designates these employees as "operators" in its
job classifications, we shall use the term "operators" in the unit herein-
after found appropriate in the case of this particular Employer. -
A Matter of Mike Benton , d/b/a General Broadcasting Co., 81 N . L. R. B. 422 ; Matter
of West Central Broadcasting Company, 77 N. L . R. B. 366; Matter of Western Gateway
Broadcasting Corporation , 77 N. L . R. B. 49 ; Matter of Station WBRE, 57 N . L. R. B. 1611.
Matter of Booth Radio Stations, Inc., 79 N . L. R. B. 964 . The last cited case is partic-
ularly relevant in connection with our finding as it relates to KCOR , Inc., which , as noted
above, operates an independent station.
" The Petitioner stated at the hearing that it seeks to represent only those technicians
who have been licensed by the FCC or who are preparing themselves to become licensed.
However , for the reasons which appear below in connection with Case No. 39-RC-38, we
shall include in the unit hereinafter found appropriate all radio technicians ( or operators)
without regard to whether they have , or are in the process of obtaining, licenses.
SUNSHINE BROADCASTING COMPANY 1247
The Employer in Cdse No. 39-RC-34 further contends that three
employees, who since June 1948 have been engaged in the construction
and installation of a new transmitter and technical equipment at a
new site, should be excluded from the unit. Two of these employees
have first-class radio telephone operator licenses, and the record indi-
cates that there has been an interchange between the two licensed em-
ployees and employees on regular operations. The Employer
contends that the new construction is a temporary operation and that
upon completion of the work the three employees will not be retained
unless there is a need for them at that time. However, the Employer
is unable to determine when the construction job will be completed.
In view of the fact that these employees perform similar duties and
have been interchanged with the other operators, we shall include
the Employer's radio operators working on new construction in the
unit hereinafter found appropriate.
B. Case No. 39-RC-38
In this case the Petitioner seeks a unit composed only of radio
technicians (with certain agreed exclusions) employed at the Em-
ployer's transmitters. The Employer contends that the appropriate
unit should also include the radio technicians in the Employer's studio
control room. The transmitter technicians are responsible for the
proper operation and maintenance of the transmitter equipment and
oversee, in general, the programs transmitted to them from the studios.
They are experienced radio engineers licensed by the Federal Com-
munications Commission as radio telephone operators. On the other
hand, in this case, unlike the situation that prevails in Cases Nos.
39-RC-34 and 39-RC-37, the control room technicians are not
licensed and are not as skilled as the transmitter technicians. They
are responsible, however, for the proper operation of technical equip-
ment in the control room which transmits programs from the studios
to telephone lines connecting technical equipment in the control room
with the transmitter. They perform no other type of work, and to=
gether with the transmitter technicians they constitute the technical
staff of the station, in a single separate department, under the common
supervision of the chief engineer. Under certain circumstances, as,
for example, where the control room technicians spend a significant
portion of their time in such activities as broadcasting, we have found
appropriate a unit confined to transmitter technicians a However,
under circumstances such as are present in the instant cases, we have
e Matter of Colorado Radvo Corporation, 55 N. L R. B. 423; Matter of Inter-City Adver-
tising Co. Inc., 55 N. L . R. B. 1415; Matter of Augusta Broadcasting Company, 58
N. L. R. B. 1493.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held T that despite the differences in the degree of skills that exist,
control room and transmitter technicians together constitute a homo-
geneous departmental group of technical employees appropriate for
the purposes of collective bargaining. Accordingly, we shall include
the control room technicians in the unit hereinafter found appropriate.
We find that the following groups of employees at each of the Em-
ployer's radio stations in San Antonio, Texas, excluding all actors,
singers, announcers, combination announcer-control room employees,
newscasters, sports commentators, office and clerical employees,
watchmen, guards, chief engineer, and all other supervisors as defined
by the Act, constitute separate units appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
1. All radio operators employed at the transmitter and studios of
Station KTSA, including operators engaged on new construction.
2. All radio technicians employed at the transmitters and studios
of Station KMAC-KISS.
3. All radio technicians employed at the transmitters and studios
of Station KCOR 8
V. THE DETERMINATION OF REPRESENTATIVES
The Employer in Case No. 39-RC-34 (KTSA) contends that no
election involving its employees should be held at this time, because
prior to the filing of its petition herein it executed a contract for
the sale of its stock, in which it agreed not to execute any contracts
which would extend beyond the date on which the stock is actually
transferred. This contract is now pending before the Federal Com-
,!Ilunications Commission. The Employer argues that should the
Petitioner be designated as the bargaining representative of its em-
ployees, it might be called upon to execute a collective bargaining
agreement with the Petitioner which would be a breach of its contract
of sale. It therefore urges that the Board withhold any further action
until a final determination has been made with respect to the impend-
ing sale. We do not agree. Pending final action by the Commission
the Employer continues to operate the station in question, and we
perceive nothing in the Employer's contract with the potential pur-
chaser which is inconsistent with the Employer's obligation to bargain
collectively with a duly designated representative of its employees,
or makes it impossible for the Employer to comply ^ with that obliga-
tion. In these circumstances the denial to the employees in question
4 Matter of Wodaam Corporation (Radio Station WOV), 83 N. L. R. B. 335; Matter
of General Broadcasting Co., 81 N. L. R. B. 422; Matter of Associated Electronic Enter-
prl8e8, Inc., 80 N. L. R. B. 295; Matter of Radio Station WSB, 70 N. L. R. B. 1168.
This station employs a part-time transmitter technician. His duties and conditions
of employment are similar to those of the other technicians and he works a regularly
assigned tour of duty each Saturday and Sunday. In these circumstances, we shall permit
this employee to vote in this election.
SUNSHINE BROADCASTING COMPANY 1249
of the opportunity to select a, bargaining representative until some
indefinite future date at which a sale might be consummated is clearly
unwarranted.
DIRECTION OF ELECTIONS 9
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Sunshine Broadcasting Com-
pany (KTSA) ; Howard W. Davs d/b/a The Walmac Company
(KMAC-KISS) ; and Radio Station KCOR, Inc., San Antonio,
Texas, elections by secret ballot shall be conducted as early as possible,
but not later than 30 days from the date of this Direction, under the
direction and supervision of the Regional Director for the Region
in which this case was heard,'and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, as amended, among the employees in the units found appro-
priate in paragraph numbered IV, above, who were employed during
the pay-roll period immediately preceding the date of this Direction'
of Elections, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid
off, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the elections, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by
International Brotherhood of Electrical Workers, Local 60, AFL.
If the Petitioner does not wish to participate in any of the elections herein directed,
it may withdraw any of its petitions filed in this proceeding upon notice to that effect
given to the Regional Director in writing within ten (10 ) days from the date of the
Direction of Elections herein . See Matter of Eisner Grocery Company, 72 N. L . R. B. 721.