V.I.P. Radio, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1960

128 N.L.R.B. 113 (N.L.R.B. 1960)

V.I.P. RADIO, INC. 113
Plant Service Department
The Employer's plant service department is composed of janitors,
maintenance men, P.B.X operators, a T.W.X operator, and a messen-
ger. The parties agree that janitors and maintenance men should
be included in the unit but the Petitioner would exclude the P.B.X
and T.W.X operators and the messenger on the ground that they have
only casual contact with production and maintenance employees. The
Employer would include each of these classifications in the unit.
P.B.X operators are located in the switchboard room which is in the
administration building which houses the office clerical force. The
T.W.X operator is similarly situated but she sends teletype messages
instead of operating a telephone switchboard. Since these operators
are essentially office clerical employees we shall exclude them from the
unit.3 The messenger receives incoming mail, sorts it by departments,
and delivers it throughout the plant. He also picks up and delivers
interdepartmental mail. In accordance with the Board policy we
shall exclude him from the production and maintenance unit 4
We find that the following employees of the Employer constitute
a unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All production and maintenance
employees of the Employer's plant at Sarasota, Florida, including
plant clerical employees, technicians, test equipment testers, and mate-
rial expeditors, but excluding office clerical employees, professional
employees, technical employees,5 guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
8 Haleyville Tecotile Mills , Inc., 117 NLRB 973.
4 Heintz Manufacturing Company, 100 NLRB 1521, 1524.
5 In accordance with Board policy we exclude technical employees where a party objects,
as the Petitioner does here , to their inclusion . See Litton Industries of Maryland,
Incorporated, supra; Freeman Loader Corporation, 127 NLRB 514.
V.I.P. Radio , Inc. and Radio & Television Broadcast Engineers
Union, Local 1212, IBEW, AFL-CIO, Petitioner . Case No.
f-RC-10612. July 19, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before William G. McCreery, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers herein to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
128 NLRB No. 28.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks a single unit of staff announcers, engineers,
and engineer-announcers, otherwise called combination men, employed
at radio stations WVIP, WFYI, WGHQ, and WVOX-AM and -FM,
located, respectively, at Mount Kisco, Mineola, Saugerties, and New
Rochelle, all in New York State, and owned and operated, respectively,
by Suburban Broadcasting Company, V.I.P. Broadcasting Company,
Skylark Corporation, and Radio Westchester, Inc.' V.I.P. Radio,
though generally agreeing to the composition of the unit, contends
that only separate units of the employees at each station are appro-
priate. The parties also disagree as to the unit placement of certain
individuals, who are discussed below.
The stations are all engaged in radio broadcasting and comprise the
"Herald Tribune Radio Network." They are located at considerable
distances from each other, and are under the immediate direction and
supervision of separate station managers. There is little or no em-
ployee interchange between the stations. However, V.I.P. Radio,
which apparently does no independent broadcasting, owns 90 percent
of the capital stock of Suburban and all such stock of V.I.P. Broad-
casting, Skylark, and Radio Westchester. The officers and directors
of the Employer are also the officers and directors of the subsidiary
corporations, with the single exception that Suburban has one addi-
tional director. There is a general manager over all the subsidiaries,
a network news director, and network director. General working con-
ditions for all the stations are set forth in a document entitled "Herald
Tribune Radio Network-Personnel Policies & Practices," adopted in
1959, and covering such matters as job classifications, overtime, the
workweek, holidays, vacations, and so forth. Copies of the document
have been posted at all stations, and although the managers of the
individual stations are permitted to approve variations from its pro-
visions, such variations do not appear to be frequent or substantial.
Employees at all stations are covered by the same group life insurance
and health and medical policies. There is no history of collective
bargaining covering employees at any of the stations. Under these
circumstances, esepcially the common ownership, the common officers
and directors, and the centralized control of general labor policy and
'Herein called respectively Suburban, VIP. Broadcasting, Skylark, and Radio
Westchester.
V.I.P. RADIO, INC. 115
operations, we find that V.I.P. Radio and its subsidiaries named above
area single employer' We further find, in view of the foregoing and
the fact that the requested unit is in effect an employerwide unit, that,
the four-station unit sought by the Petitioner is appropriate.3
There remains for consideration the unit placement of the disputed
individuals. The Petitioner would include, and the Employer would
exclude, all these persons.
Alleged Supervisors
Robert Barton works at station WGHQ as staff announcer, engi-
neer, and program director. He operates equipment, makes announce-
ments, keeps the log required by the Federal Communications
Commission, spins records, and is responsible for the coordination of
all programing at the station. There is some evidence to the effect
that, as program director, Barton has the authority to set work sched-
ules "with the approval of management." Barton is also in charge
of the station during the absences of the station manager, but there
is no evidence as to the frequency of these absences.
Garfield Ricketts is chief engineer at station WVOX-AM and -FM.
At the hearing, the Employers representative stated, in effect, that at
present Ricketts supervised only a single occasional employee, but
that in the near future the volume of work at station WVOX would
be such as to require additional personnel who would be supervised
by Ricketts.
There is no evidence in the record that either Barton or Ricketts
regularly has, or exercises, any of the specific powers of a supervisor
as set forth in Section 2(11) of the Act4 That they may, or, in fact,
do, exercise supervisory authority irregularly and sporadically is not
alone sufficient to constitute them supervisors.5 With respect to
Ricketts and the possibility that he may supervise employees to be
hired in the future, the Board has held that a unit determination must
depend on the present status of the employees involved and not on
speculation as to the future.' Accordingly, we find that neither-
Barton nor Ricketts is a supervisor as defined in the Act. They are,
therefore, included in the unit.
a Family Laundry, Inc., et al, 121 NLRB 1619 ; Duval Jewelry Company , etc, 122
NLRB 1425.
3 Hasgrave Manufacturing Company, et al , 124 NLRB 258
4 In support of its contention that Barton is a supervisor, the Employer relies on
certain Board cases in which it has found that "program directors" ale supervisors See,
for example, Hirsch Broadcasting Company, 116 NLRB 1780, 1783. However, in those
cases the individuals involved possessed certain of the supervisory powers specified in
Section 2(11) of the Act Moreover, it appears from the record here that Barton has
not necessarily the full responsibilities and authority of those program directors previ-
ously considered by the Board to be supervisors In fact, lie testified without contra-
diction that his duties as program director had never been clearly explained to him
a Planhsnton Packing Company (Division of Swift d Co ), 116 NLRB 1225, at 1231,
Diamond Bros Company, 96 NLRB 1420.
6 Albert Lea Cooperal ire Creamery Association, 119 NLRB 817, at 820
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alleged Casual Employees
Ralph Vincent regularly works primarily as an engineer at station
WGHQ on Sundays from an undisclosed hour in the morning until
about 1:30 p.m. Vincent, who has a full-time job with another con-
-cern, has also been called in on weekdays to do maintenance work at
the station.
Sylus Hopper regularly works as an engineer at station WGHQ
Saturday afternoons and at such other times as he is called in by the
Employer.
James Deaderick regularly works as an announcer at station
WVOX for about 71/2 hours on Saturdays and for about 6 hours on
Sundays. Deaderick spends the greater part of his time at school.
Accordingly, we find, contrary to the position taken by the Em-
ployer, that Vincent, Hopper, and Deaderick are not casual but regu-
lar part-time employees' who do work similar to that done by full-time
employees in the unit.8 Therefore, in accordance with the Board's
usual policy, we include these three employees in the unit.
On-Trial Employees
The Employer contends that Dilson and Toymill, announcers at
station WVOX-AM and -FM, and Freeman, an announcer or engi-
neer at station WFYI, are probationary employees on trial and, thus,
should not be eligible to vote. At the time of the hearing these em-
ployees had not completed their 90-day trial period. Their retention
as regular employees beyond this period appears to depend on their
qualifications and suitability and on the volume of the Employer's
business. The record indicates that these employees work under the
same working conditions as other employees in the unit. Under these
circumstances, the employment status of Dilson, Toymill, and Free-
man appears to be substantially that of the usual probationary em-
ployee whom the Board customarily finds eligible to vote.9 Accord-
ingly, the probationary employees are included in the unit and are
eligible to vote.
Upon the entire record in this case, we find that the following em-
ployees of the Employer at radio stations WVIP, WFYI, WGHQ,
and WVOX-AM and -FM, located respectively at Mount Kisco,
7 Gulf States Telephone Company , 118 NLRB 1039, 1042, Cornhnsker Television Corpo-
ration, 117 NLRB 1065, 1066-1067.
8 The fact that Deaderick is it student does not alone require he be excluded Corn,-
husker Television Corporation , supra, 1066-1067; Dixie Wax Paper Company, 117 NLRB
548, 550-551.
On February 29, 1960, the Employer advised Deaderick, in effect, that his employment
would be terminated on March 31, 1960, but on the latter date further advised him that
his employment was continued indefinitely "without the company waiving its right to
terminate such employment " This factor does not in itself differentiate Deaderick's
status from that of other employees included in the unit
9 The Sheffield Corporation , 123 NLRB 1454, 1457-1458.
UNITED STATES AIR CONDITIONING CORPORATION 117
Mineola, Saugerties, and New Rochelle, New York, constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All staff announcers, engineers, and
engineer-announcers, otherwise called combination men, including all
regular part-time and probationary employees, but excluding all other
employees and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
United States Air Conditioning Corporation and International
Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO.' Cases Nos. 8-CA-1789
and 8-RC-3274. July 19, 1960
DECISION AND ORDER
On January 28, 1960, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and had not engaged in others, and recommending that
it cease and desist from the unfair labor practices found and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. In his report the Trial Examiner also made
recommendations as to the disposition of objections to the conduct of
the election in the representation case. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in the
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.2
1. The Trial Examiner found that the Respondent laid off employees
Maggard and Bauder in violation of Section 8(a) (3) and (1).
Although we agree that Maggard's layoff was unlawful, we do not
rely upon the Trial Examiner's assumption that the Respondent's
1 Referred to hereinafter as the Union.
a The Trial Examiner found that the Respondent did not violate Section 8(a) (3) and
(1) of the Act by reducing Roar's working hours. As no exceptions were filed to this
finding, we adopt it pro forma.
128 NLRB No. 23.
577684-61-vol. 128-9