The Taft Broadcasting Co.

National Labor Relations Board - Board Decisions

Oct 20, 1976

226 N.L.R.B. 540 (N.L.R.B. 1976)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Taft Broadcasting Company' and Local 71, Inter-
national Brotherhood of Electrical Workers, Peti-
tioner. Case 9-RC-11423
October 20, 1976
DECISION AND DIRECTION OF ELECTIONS
By MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Raymond
D. Neusch. After the hearing and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations, this proceeding was transfer-
red to the Board for decision. Both the Employer and
the Petitioner have filed briefs.
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 reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free of prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer, a Delaware corporation with
principal offices and place of business in Cincinnati,
Ohio, is engaged in the operation of a broadcasting
facility, WTVN-TV, at a Columbus, Ohio, location.
During the 12 months preceding the hearing, a repre-
sentative period, the Employer had a gross volume of
business in excess of $100,000, and purchased goods
and materials valued in excess of $50,000 directly
from suppliers located outside the State of Ohio for
shipment to its Columbus, Ohio, location. The Em-
ployer admitted that it is engaged in commerce with-
in the meaning of the Act and we find that it will
effectuate the purposes of the Act to assert jurisdic-
tion in this proceeding.
2. The labor organization involved is a labor orga-
nization within the meaning of the Act.
3. A question affecting commere exists concerning
the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Petitioner, Local 71 of the International
Brotherhood of Electrical Workers, seeks a unit, as
further defined by the stipulations, comprising all
employees employed by the Employer at WTVN-TV
in Columbus, Ohio, including employees in the news,
traffic, production, accounting, film editing, and con-
1 The name of the Employer appears as amended at the hearing
tinuity departments, including floor directors, but ex-
cluding guards, salesmen, technicians in the existing
bargaining unit, professional employees, and supervi-
sors as defined in the Act.
The Employer asserts that a unit combining office
clerical employees with employees directly involved
in producing, presenting, and transmitting broad-
casts is not appropriate, and that only two separate
units are appropriate. The production unit would
consist of all employees who are directly involved in
or contribute to the production, presentation, or
transmission of programs, including reporters, pho-
tographers, the lab technician, artists, the production
assistants, the floor managers, the news anchor per-
sons, staff announcers, weather person, sports direc-
tor, and the film editors, but excluding all profession-
al employees, technical employees, confidential
employees, clerical employees, salesmen , guards, and
supervisors as defined in the Act. The other unit
would be composed of the clerical employees, includ-
ing the national sales coordinators, program coordi-
nator, operation clerks, billing clerks, the driver, the
receptionist, the programming assistant, the continui-
ty director, and the bowling show secretary, but ex-
cluding all professional employees, technical employ-
ees, production employees, confidential employees,
salesmen, guards, and supervisors as defined in the
Act.
Although the Petitioner seeks an overall unit, it is
willing to represent any unit found appropriate by
the Board. It does not contest the Employer's identi-
fication of clerical and production employees and
their unit placement, save, of course, that it would
include them in one unit.
Technicians employed in the engineering depart-
ment are currently represented by the Petitioner as
successor to Radio Broadcast Technicians Local
1300 with which it has merged. Employees who ap-
pear on the air were represented at one time by the
Columbus-Dayton Local American Federation of
Television and Radio Artists which has relinquished
any claim to representation. The record does not in-
dicate any other history of collective bargaining.
The Employer is organized into six overall depart-
ments, one of which, engineering, is currently, repre-
sented and neither party would include it in any unit
here. The remaining departments are sales, promo-
tion, business, news, and programming. Of these five
departments, only two-programming and promo-
tion-include both clerical and production employ-
ees. Sales includes employees who sell, maintain rec-
ords, perform secretarial duties, and work with a
computer. The daily log, which records when pro-
grams, commercials, announcements, etc., are to be
aired, is kept by employees in the sales department
226 NLRB No. 87
TAFT BROADCASTING COMPANY
under the supervision of the traffic manager. Busi-
ness department employees are concerned only with
the Employer's financial transactions and do billing
and accounting work. All employees in the news de-
partment are concerned with production and work as
reporters, photographers, anchor persons, sports di-
rector, or weather person, or write scripts and oper-
ate devices used for production. The promotion de-
partment promotes the station and the individual
shows which appear on the station and includes an
art department with two artists, as well as an assis-
tant to the promotion manager. The assistant sched-
ules promotions on the air, entering them into the
bias computer system, and writes some promotions,
as well as drafting some correspondence for the pro-
motion manager and typing his correspondence.
The art department is under the promotion direc-
tor in a separate office. The artists are responsible for
all commercial art which appears on the air and, ap-
parently, have little or no contact with the promotion
assistant. The remaining department is "program-
ming" which consists of various clericals, guard, driv-
er, and a maintenance employee who work directly
under the program manager, as well as employees
who work under the production manager or the film
director preparing programs to be shown on the air.
The program department is responsible for seeing
that programs, commercials, etc., are aired appropri-
ately and the program manager is also responsible
for "talent" and live programming outside the news
department.
The clerical employees are not directly involved in
the production process and have separate immediate
supervision and different work interests. There is no
evidence of temporary interchange between the two
groups, and their functions are dissimilar. Thus while
the duties of the clerical employees are similar to
those which might be found in any clerical unit, typ-
ing, filing, billing, etc., those of the production em-
ployees are specialized for the industry. The latter are
functionally integrated with the common goal of pre-
sentation of the product on the air, while the former,
the clerical employees, are primarily concerned with
the business aspects of the'Employer's work. We find
that the clerical employees lack a sufficient commu-
nity of interest with the production employees to be
included in the same unit for the purposes of collec-
tive bargaining, and shall direct elections in separate
units .2
Although the Employer and the Petitioner have
stipulated the exclusion of certain supervisors and
confidential employees, the supervisory, confidential,
or professional status, or community of interest, of
2 The Outlet Compai y, 218 NLRB 21 (1975).
541
certain other individuals is contested. Thus, the Em-
ployer would include the host of its bowling shows,
Dick Schorr. The Petitioner would exclude him.
Schorr is "free-lance talent" under contract to per-
form six bowling shows each week; two live and four
taped. He works at the station 15 to 20 hours each
week but is paid a flat fee under contract for the
shows regardless of the amount of work involved.
The contract is not exclusive and Schorr also hosts
bowling programs for other employers in St. Louis
and Philadelphia. Although the Employer contends
that Schorr is eligible for certain fringe benefits, the
portion of the record it relies on does not support
that claim. Schorr is the Employer's only free lance
employee, his salary is determined by his individual
contract, and the record does not establish that he
enjoys the fringe benefits available to other employ-
ees. He does not'share a community of interest with
other employees. Accordingly, we do not include him
in either bargaining unit.
Although the parties stipulated the exclusion of the
production manager as a supervisor, Production
Manager John McGlone was replaced by Robert
Weesner during the hearing. There was no testimony
about Weesner's duties and the parties could not
agree whether he was the production manager or
merely acting production manager. The position is
excluded. Whether Weesner is "production manag-
er" cannot be resolved on this record. Therefore, he
may vote subject to challenge.
Robert Aaron, the assignment editor, assigns pho-
tographers and reporters to news stories. The Em-
ployer believes that he exercises discretionary au-
thority as a supervisor and would exclude him from
any unit, while the Petitioner argues that he does not
and would include him. A witness called by the Peti-
tioner, Jim Kenyon, testified that assignments are
based on practice rather than discretion and that as-
signments made by the assignment editor may be dis-
cussed and modified. However, the burden of his tes-
timony was that ^ the assignment editor makes the
final decision. Aaron determines which stories will be
covered, how extensively, and by' whom. He is re-
sponsible for moving people" around to get maximum
coverage, is authorized to recommend discharge,
evaluates employees,; and may keep' employees over-
time or call in additional employees. We find that
Aaron is a supervisor.
The Employer asserts that Mike Crews, hired as a
producer during the hearing, is a supervisor. Howev-
er, although agreeing that in the past the executive
producer has been a supervisor, the Petitioner be-
lieves that changes in the Employer's management
structure may have affected, the duties involved and,
therefore, requests that Crews vote subject to chal-
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lenge. We find merit in the Petitioner's argument. Al-
though the record is sufficient to establish that the
position of executive producer had been supervisory,
Crews was hired as a producer, not executive produc-
er. The acting news director testified only that Crews
possibly could be promoted to executive producer af-
ter he had been- on the job a number of months.
Crews may vote subject to challenge.
The Employer has two full-time directors, Don
Watkins and Paul Ogle, who it contends are supervi-
sors. Watkins and Ogle work from a prepared script
and do not determine the content of a program, but
rather the manner in which it is presented. On the air,
the director is in charge, cueing and coordinating the
employees involved. However, the director's authori-
ty, and direction of other employees, is more artistic
than supervisory. Directors coordinate the jobs of the
other employees during a show, but do not hire, fire,
or effectively recommend those personnel actions. A
director may warn another employee, but only that
the employee may be reported to an individual with
disciplinary authority. Directors do not determine
the identity of the crew with which they work; and,
although they may request a change, the decision is
made, by others. Any recommendations a director
may make concerning other employees are informal.
The record does not demonstrate that they responsi-
bly "direct" employees as that term is used in Section
2(11) of the Act; there is no evidence that they tell
other employees how to perform the details of their
jobs, or that they would be competent to do so. We
find that they are not supervisors within the meaning
of the Act.'
James Bell is also thought by the Employer to be a
supervisor, or a professional employee, who should
be excluded from any unit found appropriate. Bell
had no accounting experience before working for the
Employer and has no college degree, but he had at-
tended Columbus Technical Institute for 4 or 5 years
and, at the time of the hearing, was about to be grad-
uated. According to David Laughlin, business man-
ager , Bell, one of five accounting clerks and his assis-
tant, performs some functions which extend beyond
bookkeeping and require accounting judgment.
However, the record falls short of establishing that
Bell's work is other than predominantly routine and
that it requires the consistent exercise of discretion. It
is not sufficient that Bell, on occasion, may exercise
such judgment. We find that he is not a professional
employee.
3 Westinghouse Broadcasting Company, Inc, (KDKA-TV, Channel 2), 216
NLRB 327 (1975), and cases cited therein Great Western Broadcasting Corp
d/b/a KXTV, 192 NLRB 1203 (1971), on which the Employer relies, in-
volved producer-directors who "responsibly direct[ed]" employees in shows
for which they had full responsibility from planning through presentation
The Employer also argues that Bell is a supervisor.
While Bell does not assign work, and, apparently,
,spends the major part of his time performing rank-
and-file work, 35 percent of his work is composed of
reviewing and correcting the work of others. Bell, ac-
cording to his superior, Laughlin, evaluates employ-
ees and one employee was discharged directly as a
result of Bell's recommendation. No further investi-
gation was made because, according to Laughlin,
that was Bell's responsibility. We need go no further.
Since Bell can effectively recommend discharge, he is
a supervisor.
Certain employees are identified by the Employer
as confidential in addition to those whose exclusion
on that basis was stipulated by the parties. Confiden-
tial employees are those who assist and act in a confi-
dential capacity, to persons who formulate, de-
termine, and effectuate labor policies.4 In the case of
Ada Scott, the engineering secretary, the Petitioner
agrees that she should be excluded. Scott is secretary
to the chief engineer, who participates in labor nego-
tiations, and among other duties has typed notes
from strategy sessions held to determine the Employ-
er's bargaining position during negotiations with the
representative of the engineering unit. She is exclud-
ed as a confidential employee.
Monica Smith, executive sales secretary, would
also be excluded by the Employer as confidential
secretary to General Sales Manager George Coles.
Smith is also secretary to five salesmen and her prin-
cipal duty is taking messages for the salesmen, for
whom she also types, in addition to typing Coles'
,correspondence. Unlike the Employer, we see no
similarity to Pullman Standard Division of Pullman,
Incorporated, 214 NLRB 762 (1974), which excluded
employees who estimated future labor costs and thus
were privy to the amount their employer would con-
cede in wages and benefits during negotiations. The
Employer bases its comparison to Pullman on
Smith's typing of "confidential reports . . . dealing
with restructuring the sales and traffic department."
That seems to be a reference to Coles' testimony that
2 years earlier he had "influenced the restructuring,"
apparently by recommending that he not be required
to travel. No evidence is advanced which suggests
that Smith has access to confidential budget esti-
mates relating to labor relations as did the excluded
Pullman employees. Smith's typing confidential per-
sonnel evaluations for Coles does not require her ex-
clusion, and, as the record does not otherwise sup-
port the claim that she is a confidential employee,
she is included in the clerical unit.'
4 The B F Goodrich Company, 115 NLRB 722 (1956)
5 Curtiss-Wright Corporation, 63 NLRB 207 (1945), which the Employer
also relies upon , bears no meaningful relation to the facts advanced by the
Employer in support of its position here, and was decided before the
TAFT BROADCASTING COMPANY
Similarly, the Employer's argument that Joyce
Redd, payroll clerk, must be excluded as confidential
is not adequately supported by the record. Redd
maintains personnel files containing employment ap-
plications, raises, and insurance; computes gross
compensation upon which a profit-sharing bonus is
based; and prepares the payroll. Access to personnel
files does not require an employee's exclusion from a
bargaining unit as a confidential employee .6 The con-
tention that Redd has access to budgetary and cost
allocation estimates is not established by the portion
of the record the Employer relies upon and, in any
event, would not require her exclusion without more.
The Employer has not established that she is a confi-
dential employee and she is included in the office
clerical unit.
The Employer would also exclude Barbara Thom-
as, secretary to the program manager, because she
types discipline reports on employees and performs
"confidential labor relations secretarial duties for
Vice President and General Manager von Stade."
Neither Thomas' familiarity with disciplinary action
against other employees nor her sporadic work for
von Stade for less than once a month requires her
exclusion as a confidential employee. There is noth-
ing to indicate that she has ever assisted von Stade in
a confidential capacity or in any manner bearing on
labor relations. She is included in the office clerical
unit. Victor Industries, Corp., supra.
Steve Torgenson is a high school cooperative stu-
dent employed part time in connection with a school
program for which he receives credit. The record
does not indicate any likelihood that his employment
would continue and the Employer asserts that coop-
erative students are terminated upon completion of
the program. We find that Torgenson has no reason-
able expectation of continuing employment and
lacks sufficient community of interest to be included
in a bargaining unit with other employees. Accord-
ingly, we exclude him as urged by the Employer.
The Petitioner indicates that it is willing to repre-
sent the maintenance superintendent and "the part
time employee" working under him. "Part time em-
ployee" apparently refers to Donald Anderson,
whom the Employer would exclude as a casual em-
ployee. Anderson works 4 hours a week at the trans-
mitter site at his convenience and on an irregular on
call basis at the station primarily performing yard-
work during the summer. Anderson receives no
Board's reexamination of its policy on confidential employees in Ford Motor
Company (Chicago Branch), 66 NLRB 1317 (1946)
6 Victor Industries Corporation of California, 215 NLRB 48 (1974).
543
fringe benefits and there is no indication that he reg-
ularly comes into contact with unit employees; those
at the transmitter site are technicians in the engineer-
ing unit. In view of the intermittent and casual na-
ture of Anderson's employment, the absence of regu-
lar contact with unit employees, and the fact that he
does not receive the fringe benefits accorded unit
employees, we find that he lacks a sufficient commu-
nity of interest and exclude him from both units.
However, the remaining maintenance employee, or
"superintendent," would be included by both the Pe-
titioner and the Employer. Accordingly, he is includ-
ed in the clerical unit.
Both the Employer and the Petitioner would ex-
clude Community Relations Director Liz Evans from
any unit. Evans spends the majority of her time at
the radio station, with which most of her work is
concerned, and reports to its general manager. She
has little contact with the television employees in the
units here and, accordingly, we exclude her from
both units because she lacks a sufficient community
of interest.
We find that the following units,'as further defined
by the stipulations of the parties, are appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed by the Employer at
WTVN-TV in Columbus, Ohio, who are direct-
ly involved in or contribute to the production,
presentation, or transmission of programs, in-
cluding reporters, photographers, the lab techni-
cian, artists, the production assistants, the floor
managers, the news anchor persons, staff an-
nouncers, weather person, sports director, and
the film editors, but excluding all professional
employees, technical employees, confidential
employees, clerical employees, salesmen, guards,
and supervisors as defined in the Act.
All clerical employees employed by the Employ-
er at WTVN-TV in Columbus, Ohio, including
the national sales coordinators, program coordi-
nator, operation clerks, billing clerks, the driver,
the receptionist, the programming assistant, the
continuity director, the bowling show secretary,
and the maintenance superintendent, but ex-
cluding all professional employees, technical
employees, production employees, confidential
employees, salesmen, guards, and supervisors as
defined in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]