WAPI-TV-AM-FM

National Labor Relations Board - Board Decisions

Jul 20, 1972

198 N.L.R.B. 342 (N.L.R.B. 1972)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newhouse Broadcasting Corporation d/b/a WAPI-
TV-AM-FM and Algie V. Surratt, et al., Petition-
ers and International Brotherhood of Electrical
Workers, Local Union #253, AFL-CIO, Union.
Case 10-RD-414
July 20, 1972
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9 (c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Stephen D.
Hise on November 2 and 3 , 1971. Following the
hearing , pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended , this case was transferred to the
National Labor Relations Board for decision . There-
after , the Petitioners , Employer , and Union filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . The rulings are hereby
affirmed.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act , and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioners , employees of the Employer,
assert that the Union , which has been certified as the
exclusive bargaining representative of the employees
designated in the petition , is no longer a representa-
tive as defined in Section 9 (a) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. Petitioners seek a decertification election in the
same unit for which the Union was previously
certified , that is, all employees in the engineering
department at WAPI-TV-AM-FM, excluding super-
visors. Petitioners would include in this unit assistant
staff engineers and projectionists on the ground that
they were by stipulation included in the unit and
voted in the election which resulted in the Union's
certification . The Union contends that the assistant
staff engineers are supervisors and should be exclud-
ed. The Employer agrees with the Petitioners'
position, but contends further that if the eligibility of
the assistant staff engineers is to be redetermined,
then that of the projectionists should also be
reexamined and it would exclude them.
Petitioners and the Employer argue that, since the
unit in a decertification election should coincide with
the unit for which the union was certified, and the
assistant chief engineers were included in the unit
and voted in the election which resulted in the
Union's certification, they should also be included in
the present unit and permitted to vote. We find no
merit in this argument. Supervisors by statute are
excluded from the coverage of the Act. The Board is
therefore without jurisdiction to include them in a
bargaining unit. If the position of the Petitioners and
the Employer was adopted, and the Union won the
decertification election, the Board would have to
certify that the supervisors were included in the
bargaining unit for which the Employer was required
to bargain. But the Board is prohibited from doing
this. Accordingly, even if supervisors were included
in the bargaining unit for which a union was certified
by stipulation of the parties, the Board must exclude
them in a subsequent decertification election involv-
ing the certified unit.' We shall therefore examine the
status of assistant chief engineers to determine
whether they are supervisors.
There are 20 employees in the engineering depart-
ment: 5 plus an assistant chief engineer in the radio
section, and 13 plus an assistant chief engineer in the
television section. The engineering department is
under the overall supervision of a chief engineer
whose supervisory status is conceded. The employees
in the radio engineering section keep AM and FM
transmitters on the air, take necessary readings from
them, load tapes and cartridges containing music and
commercial messages, watch controls for proper
audio signal level, and perform maintenance work
both at the main station and two remote locations.
Television engineering section employees perform
video switching (moving from one source or program
to another), projection (loading in proper sequence
films and slides), and monitoring the video level of
cameras and maintenance work as necessary.
The Employer and Petitioners assert that the
assistant chief engineers in the radio and television
sections direct other employees in a routine way,
exercising no independent judgment. They contend
that, at most, the assistant chief engineers are highly
skilled technicians who act as leadmen and are
conduits of orders from the chief engineer to other
unit technicians with skills closely comparable to
1 The Illinois Canning Company, 125 NLRB 699
198 NLRB No. 60
WAPI-TV-AM-FM 343
their own. The Employer, however, did not have the
assistant chief engineers testify regarding their duties
so that their authority has to be determined from the
testimony of technicians working in the radio and
television sections and that of management officials.
From such testimony we find that both assistant
chief engineers, Heerten and Pierce, are supervisors
within the meaning of Section 2(11) of the Act. While
the record shows that the assistant chief engineers
lack authority to hire, discharge, lay off, promote, or
adjust the grievances of other technicians (who like
themselves hold first-class engineer licenses) it also
shows that assistant chief engineers have full authori-
ty responsibly to direct the work of other technicians
in the respective radio and television sections of the
engineering department.
Thus, radio technician Smith testified that when he
was hired by the general manager (Grisham) in the
presence of Assistant Chief Engineer Heerten and
the then Chief Engineer Sanderson, he was told by
Grisham that his "immediate boss" would be
Heerten and "if I had any problems concerning my
job, the description of my duties, my scheduling, or
anything of that nature, that first to go to Mr. Louis
Heerten who was my immediate supervisor." Smith
further testified that Heerten regularly prepared his
work schedule, and has posted memoranda changing
his shift from his regular work schedule when there is
need for him to cover remote broadcasts away from
the station and special events. Smith also testified
that to switch work assignments with other employ-
ees requires his assistant chief engineer's approval,
and that his requests for time off are also directed to
Heerten for approval.
Kyle, a television technician hired by present Chief
Engineer Gross, testified that he was introduced to
Assistant Chief Engineer Pierce by Gross and was
told, "this is your supervisor. If you have any
problems to come to him, if you're sick, call him, if
you have any problems or questions he'll be glad to
help you with it." Kyle testified that his normal work
schedule is posted by his assistant chief engineer and
that in trouble or emergency situations his responsi-
bility is to communicate promptly with Pierce and
obtain necessary assistance.
In addition to the above, it is clear from the record
that both radio and TV technicians normally file
discrepancy reports when a broadcast operation is
not properly carried out and that assistant chief
engineers in such sections have the responsibility of
questioning the technician originating the report to
determine the reason for the faulty operation and to
correct the unsatisfactory condition. Assistant chief
engineers check for accuracy all timesheets submit-
ted by technicians and have authority to schedule
work for them on ordinary off days, when station
operations require. Assistant chief engineers post
written schedules for all necessary technical mainte-
nance work by radio and television technicians, and
check such work to see that it is properly performed.
Further, they assign particular technicians as the
workload or nature of developing events may require
in day-to-day station operations.
Chief Engineer Gross, when questioned concerning
the authority of assistant chief engineers, testified on
cross-examination that their normal function is to
assist and supervise the technical operations of the
engineering department and to "take over" his job
during his periodic trips to remote relay stations of
the Employer, acting as chief engineer in his absence.
His testimony also corroborates that of radio and
television technicians that they have, upon being
hired, been informed by him that they are to function
subject to the direction of the assistant chief
engineers in their respective sections of the depart-
ment, and that they are required to follow the
directions they receive from the assistant chief
engineers. In view of the foregoing, we conclude that
assistant chief engineers in both the radio and
television sections of the engineering department unit
are supervisors within the meaning of Section 2(11)
of the Act. We therefore exclude them from the unit.2
The further question to be decided is whether two
projectionists in the television section are to be
excluded from the unit at the request of the
Employer, which contends that they are not as highly
skilled as the other technicians and therefore should
be excluded. In this regard the Employer calls our
attention to the fact that the projectionists have only
third-class licenses whereas technicians included in
the unit have first-class licenses. While the record
shows that the projectionists cannot make certain
technical adjustments to the television transmitter in
the television section where they work, or sign the
station's transmitter log, it also shows that they
perform virtually all other functions of television
technicians who hold first-class engineering licenses.
Thus, the projectionists perform such duties as
loading film, slides, and video tapes in proper
sequence, handling shading shifts to maintain proper
projection quality in transmission, and a full range of
station maintenance work. We find on the basis of
the above evidence that the two television projection-
ists have a sufficient community of work interests
with other technicians in the engineering department
to warrant their inclusion in such unit.
In any event, since, by agreement of the parties, the
projectionists were included in the unit for which the
2 Duveroy & Sons, Inc, 177 NLRB 538, Central Machine & Tool Workers,
171 NLRB 1080
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union was certified, and since no statutory provision
or policy requires their exclusion therefrom, as in the
case of the assistant chief engineers dealt with
previously herein, we find that the projectionists
should not be excluded from the present unit. For it
is well established that the scope of the unit in a
decertification election should be coextensive with
the certified or recognized bargaining unit.3
On the basis of the foregoing evidence, we find that
all employees employed by the Employer in the
engineering department of its radio and television
facility , WAPI-TV-AM-FM, Birmingham , Alabama,
including television projectionists , but excluding
assistant chief engineers, office clerical employees,
production employees , guards , and other supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
3 Booth Broadcasting Company, 134 NLRB 817, 822, The Illinois Canning
Co, 125NLRB699