WCAU, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1951

93 N.L.R.B. 1003 (N.L.R.B. 1951)

WCAU, INC. 1003
ing supervisors as defined in the Act. If a majority of the employees
voting cast ballots for the Petitioner, they will be taken to have in-
dicated their desire to be a part of the production and maintenance
unit, and the Petitioner may bargain for such employees as part of
the existing unit .5
[Text of Direction of Election omitted from publication in this
volume.]
5 Great Lakes Pipe Line Company , 92 NLRB 583.
WCAU, INC. and AMERICAN FEDERATION OF RADIO ARTISTS, AFFILIAT-
ED WITH THE ASSOCIATED ACTORS AND ARTISTS OF AMERICA, AFL,
PETITIONER. Cases Nos. 4-RC-828 and 4-RC-829. March °27,1951
Decision and Direction of Election
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Fred G. Krivonos, hearing
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 Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act. 1
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 has filed two separate petitions for representation
of the television employees of WCAU, Inc., at Philadelphia, Penn-
sylvania. 2 One petition (4-RC-828) requests a unit of all directors,
assistant directors, and employees in the art, scenic, photographic,
script, film, and production facilities departments of WCAU-TV ;
the second (4-RC-829) requests a -unit of all announcers (including
staff and special program) ; all special artists (including actors,
singers, specialty-acts, walk-ons) and all other employees of WCAU-
TV who appear before the television camera or microphone. The
1 WBSR, Inc, 91 NLRB 630.
2 Not included in these petitions are the television technicians who have been represented
since February 1950 by the International Brotherhood of Electrical Workers, AFL ; see
WCAU, Incorporated, 88 NLRB 68
93 NLRB No. 162.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer has agreed substantially to the appropriateness of the units
requested but would exclude certain categories of employees from
both units, either on the ground that they have supervisory duties or
that their duties are primarily in radio rather than in television.
A. Case No. 4-RC-828
The unit requested in 4-RC-828 comprises all employees, other
than technicians, of WCAU-TV.who contribute to the presentation of,
but do not appear on television programs. These categories of em-
ployees form an identifiable, cohesive unit and may, in accord with
Board precedent 3 constitute an appropriate bargaining unit. The
only issues with respect to exclusion from this unit concern direc-
tors and heads of departments whom the Employer contends are
supervisors within the meaning of the Act. These will be discussed
in order.
Directors
There are eight directors presently employed by WCAU-TV. The
Petitioner contends that five of these men should be included in the
unit, but that three, for various reasons, 4 should be excluded there-
from. As previously indicated, the Employer maintains that all di-
rectors are supervisors within the meaning of the Act.
Because the management of WCAU-TV did not, prior to the hear-
ing, make clear to the directors the exact nature of their duties and
responsibilities, 5 a conflict exists in the testimony of the three direc-
tors who testified at the hearing. However, on the basis of the en-
tire testimony, it appears that the director is the only man who super-
vises the actual presentation of each television broadcast and that it
is the director's duty not only to plan and arrange the technical effects
of the show, but also to rehearse, cast, and assign work to the produc-
tion men. Furthermore, although it appears that occasion for mak-
ing recommendations has never arisen, it is understood by the direc-
tors generally that they have authority to make effective recommenda-
tions to the producer that employees working under their direction
be transferred or discharged. In the light of the foregoing and in
accordance with the Board's rulings and findings in similar circum-
5 KMTR Radio Corporation (KLAC-TV), 85 NLRB 99.
The Petitioner's reasons for excluding these three directors , namely, Allan Bergman,
Joseph Tinney, Jr, and Ruth Weir Miller, need not be discussed in view of our finding
below that all directors presently employed are supervisors within the meaning of the Act.
We find without substantial evidentiary value the statements in the Employer 's Exhibits
Nos. 1 and 2, designed to show that certain individuals have supervisory functions,
because these statements were never shown to the employees themselves prior to the
date of the hearing It is necessary to analyze the actual duties of the employees to
determine their supervisory status, as we may not rely on the Employer 's "understanding"
of what those duties are . William C . Meredith Company, Inc, 74 NLRB 1064.
WCAU, INC. 1005
stances, 6 we believe thatthidirectors at WCAU-TV possess substan-
tial supervisory authority within the meaning of Section 2 (11) of
the Act. Accordingly, we shall exclude, them frpm the unit.
Heads of Departments
The Employer contends that John Ferlaine, Jan Ozog, and Charles
'Gimborn, heads of the art,^k2nic, and photographic departments, re-
spectively, at WCAU-TV are supervisors, who should be excluded
from the unit requested. , The ,record discloses „that all three depart-
ment heads have recently been, given to understand that they have
the power to effectively recommend hiring and discharging employees,
and that Ferlaine and Gimborn, each of whom supervises one employee,
have exercised supervisory authority within the past few months.
On the other hand, it is undisputed that Ozog, the head of the scenic
department, has no one to supervise. Nor does it appear that there is
any prospect of his having any employees to supervise within the
foreseeable future. Because the head of the scenic department has no
one to supervise and there is no indication that this department will
be enlarged in the near future, we find that he is not a supervisor and
shall include him in the unit." However, as the heads of the art and
photographic departments have each at least one employee over whom
they have exercised supervisory authority within the past few months,
we find that they are supervisors and shall exclude them from the
unit.a
The Employer further contends that the head of the production
facilities department and his assistant are supervisors. The head of
the production facilities department apparently has the power to
recommend the transfer, promotion, or discharge of the assistant
directors. We find therefore that he is a supervisor and shall ex-
clude him from the unit. However, insofar as his assistant, Charles
Carey, is concerned, it appears that Carey has never been informed
by management that he is expected to perform any supervisory func-
tions. 10 Moreover he has never exercised supervisory authority. We
find that Carey has no substantial supervisory functions and is there-
fore not a supervisor within the meaning of the Act; accordingly,
we shall include him in the unit.
'Delaware Broadcasting Company, 82 NLRB 727; see also National Broadcasting
Company, Inc., 89 NLRB 1289
1 No issue is presented as to the head of the film department who is admittedly a
supervisor.
8 Arizona Times , Inc , 85 NLRB ' 230 Since the record shows Ozog has the same
authority as other department heads, lie shall be deemed excluded from the unit when
and if other employees are added to the scenic department.
9 Keystone Printing Service-117aukegan News-Sun, 85 NLRB 157.
10 This individual was given ^ the- title of night supervisor of the production facilities
department 6 weeks prior to'tile date of the hearing . However, it does not appear that
during the night shift Carey directs employees other than to call upon available
production men to assist him in' clearing the studios. ,
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Case No. 4-RC-829
In this case the parties are in substantial agreement that the ap-
propriate unit should, in general, include staff and special program
announcers, special artists, and all other employees, who appear
before a television camera or television microphone 12 The only issue
with respect to the question of the appropriate unit 13 concerns the
status of certain program announcers whom the Employer contends
are supervisors to be excluded from the unit.14 The employees in
dispute will be considered in the order named.
Johan Ulrich and Warren Wright are employed as directors but each
also serves as a special program announcer on a daily half-hour
program on television. In their capacity as directors, they regularly
exercise supervisory authority for substantial periods during their
weekly employment. We find, therefore, that they are supervisors
and shall exclude them from the unit of announcers and special
artists 15
Norris West, a radio program director and special program an-
nouncer was excluded as a supervisor from the unit of radio an-
nouncers established by the Board in 1947.1e As his duties have
not substantially changed since that time, we find that he is presently
a supervisor and shall exclude him from the unit of announcers and
special artists.
We find that the following groups of employees at the Employer's
television station, WCAU-TV, at Philadelphia, Pennsylvania, ex-
cluding guards, office clericals, and supervisors as defined in the Act,
constitute separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act :
(1) Assistant directors and all employees in the art, scenic, film,
photographic, script, and production facilities departments at
11 Special program announcers are radio or television performers who, as a general
rule, are in charge of preparing and putting on one or more special shows The Petitioner
contends that this classification covers 11 employees, namely : Scott , Sears, McMahon,
Shaw, Corbett , Whitaker , Leiss, Wright, Ulrich, West and Olander It appears that.
John DaGrossa , whose term of employment was the 1950 football season and Frank
Goodman are not presently employed by WCAU-TV.
12 It is stipulated that, aside from staff and special program announcers , the only other
persons presently employed and who may fall into the unit description in Case No.
4-RC-829 are singers and newsroom employees Of the former , it is agreed that Natalie
Nevins and Richard Caulk are employed on WCAU-TV and should be included within
the unit
13 The eligibility of the staff announcers presently employed by the Employer together
with the eligibility of a part-time television singer ( Virginia Diehl ) and a part-time
special program announcer ( Robert Olander ) will be considered in paragraph numbered
5, infra. _
14 The employees In dispute are John Ulrich, Warren Wright, and Norris West. The
Employer agrees to the inclusion of Scott, Sears , McMahon, Shaw , Corbett , Whitaker,
and Leiss.
15 The Texas Company, Salem Gasoline Plant, 85 NLRB 1211.
le TVCAU Broadcasting Company, 72 NLRB 537.
WCAU, INC. 1007
WCAU-TV, including tl>,e head of the scenic department and- Charles.
Carey, but excluding producers, directors, and the heads of the art,
film, photographic, and production facilities departments.
'(2) All staff and special program announcers, 17 special artists,18
and other employees of WCAU-TV who appear before a television
camera or television microphone, excluding John Ulrich, 'Warren
Wright, and Norris West.
5. The determination of representatives :
The primary issue in Case 4-RC-829 is whether or not certain
employees within the unit of television announcers and special artists
are eligible to vote in the election to be held for the selection of a
bargaining representative. Of these, the principal dispute concerns
staff announcers 19 The Petitioner contends that all staff announcers
who do some work for WCAU-T V are eligible to vote within the unit
requested. The Employer asserts, on the other hand, that the staff
announcers presently employed are not eligible to vote in the tele-
vision unit because they are radio announcers under contract to
WCAU-AM-FM and their television work is slight and incidental
to their main functions as radio announcers.20
Staff announcers for the Employer's radio operations have been
represented by the Petitioner since 1947.21 The most recent contract
'between the parties was executed in July 1950. This contract does
not specifically cover staff announcers while they are employed on
television. The contract provides that when a staff announcer appears
on television for a certain period of time during his "staff stretch," 22
WCAU will deduct from the regular salary he receives for his radio
work an amount equivalent to triple the duration of time during which
he appears on television. The rate of payment for the time worked
on television is not set forth in the contract.
Although it is stipulated that the staff announcers make over 80
percent of the station breaks and spot announcements on TV, it appears
that television duties of this type constitute only a minor part of the
daily duties of staff announcers. Six staff announcers 23 also serve
as special program announcers, each of whom is in charge of one
30-minute special television program per day. The record does not
"Within this category are included Scott, Sears, McMahon, Corbett, Shaw, Whitaker,
and Leiss.
11 Included within this category are singers Natalie Nevins and Richard Caulk. Not
included, however is singer Art Sidrow as it appears that he is not presently employed
on television
19 These announcers are Bradley, Crane, Hart, Maness, Taylor, Thomas, Walton, Reid,
and Burnett
20 In addition to the disputed category of staff announcers, the parties are in disagree-
ment regarding the eligibility of a part-time special program announcer (Robert Olander)
and a part-time special artist (Virginia Diehl).
21 See WCAU Broadcasting Company, supra
^ The "staff stretch" is the period of time during the day that an announcer is
regularly employed on the radio.
"These announcers are Bradley, Crane, Hart, Maness, Taylor, and Thomas.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclose whether or not the time spent in making television spot
announcements and station breaks constitutes a'major proportion of
the duties of these six staff announcers.
The Board has often held that only those employees who are pri-
marily employed in work which qualifies them to be within the unit
may vote within that unit.24 We so hold here. Therefore, only those
employees who in the last 12 months, or for so much of the period as
they have been- in the employ of the Employer, have spent 50 percent
or more of their time in work for the television operations of WCAU,
shall be eligible to vote. By this standard we find that the staff
announcers presently under contract to WCAU-AM-FM, whose sole
television duties are spot announcements and station breaks '25 are
not eligible to vote in the election directed for the appropriate unit
in Case No. 4-RC-829. All or any of the remaining staff announcers
with special program duties who do not spend at least half of their
time in the performance of TV duties for WCAU shall likewise be
deemed ineligible to vote within the television unit.
One staff announcer, Howard Burnett, makes only two spot an-
nouncements on television per day. It appears that he spends a major
portion of his time in work for the script department of WCAU-TV
and consequently is included within the unit found appropriate in Case
No..4-RC-828. Accordingly, we find that he is not eligible to vote in
the election herein directed for the unit in Case No. 4-RC-829.
Robert Olander spends approximately 75 percent of his time as a
special program announcer on television and the balance of his time
as an assistant director. Accordingly, we find that he is eligible to
vote in the election directed in Case No. 4-RC-829.
The Employer contends that Virginia Diehl, a special artist em-
ployed as a singer, is not eligible to vote within the television unit
because she is under contract of WCAU-AM-FM. As it appears that
Diehl spends more of her time at present singing on television pro-
grams than she does on radio programs, we find that she is eligible to
vote in the election directed for the television unit.
Although employees performing television duties less than 50 per-
cent of their time are ineligible to vote in the announcers unit, they
nevertheless are included within such unit for the time they are en-
gaged in television work, and are to be represented insofar as such
work is concerned by the bargaining representative for that unit.26
[Text of Direction of Elections omitted from publication in this
volume.]
24 Delaware Broadcasting Company, 82 NLRB 727; Maui Pineapple Company, Limited,
60 NLRB 401.
25 It appears that the only employees presently within this category are Ralph Reid
and Hugh Walton.
28 Delaware Broadcasting Company, supra.