Westignhouse Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1975

216 N.L.R.B. 327 (N.L.R.B. 1975)

WESTINGHOUSE BROADCASTING COMPANY, INC.
Westinghouse Broadcasting Company, Inc. (KDKA-
TV, Channel 2)1 and Directors Guild of America,
Petitioner. Case 6-RC-6897
January 28, 1975
DECISION AND DIRECTION OF
ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a petition duly filed on July 11, 1974, under
Section 9(c) of the National Labor Relations Act, as
amended , a hearing was held before Hearing Officer
Barry F . Bevacqua of the National Labor Relations
Board on August 20-23 , 1974. Following the hearing
and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended , and by direction of the Regional
Director for Region 6, this proceeding was trans-
ferred to the Board for decision . Thereafter, the
Employer and the Petitioner 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. They are hereby affirmed.
Upon the entire record in this proceeding 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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.2
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. As to the appropriate unit, there is no history
of collective bargaining for the employees sought to
be represented here.
The Petitioner seeks to represent a unit of all staff
and freelance producer/-directors , and all associate
producer/directors employed by the Employer at its
television station , KDKA-TV, in Pittsburgh, Penn-
sylvania . The Employer contends that the proposed
unit is inappropriate for collective -bargaining pur-
poses because all employees to be included therein
I Employer's name appears as amended at the hearing without objection.
2 The Employer declined to stipulate that Petitioner is a labor
organization . In light of the Board's decision in Directors Guild of America.
Inc. (Association of Motion Picture & Television Producers, Inc.), 198 NLRB
707 (1972), enfd. 494 F.2d 692 (C.A. 9, 1974), and the record evidence that
216 NLRB No. 64
327
are supervisors and/or managerial employees within
the meaning of the Act.
The Employer , an Indiana corporation with its
principal offices in New York City, is engaged in the
operation of radio and television stations . Solely
involved in this proceeding is the Employer's Group-
W television facility known as KDKA-TV, Channel
2. KDKA is affiliated with the Columbia Broadcast-
ing System and broadcasts a daily program schedule
which includes network , syndicated, and locally
produced programs.
KDKA's general manager is charged by the
Employer with ultimate responsibility for the station,
which is functionally divided into five departments:
programming , engineering , sales , promotion, and
business . A department manager oversees each
division and reports directly to the general manager.
The proposed unit employees here-seven produc-
er/ directors and two associate producer/directors-
work in the production department , a subdivision of
programming, which is the department responsible
for the actual conception , production, and broadcast
of all programs of local origin . A program manager,
assisted by the executive producer , is in charge of the
program department, and in that position he directs
the assignment of producer/directors and associate
producer/directors to tasks on specific programs.
The production department operations manager,
inferior in authority to the executive producer,
schedules the weekly studio time for each producer/
director and associate producer/director.
Producer/Directors
Producer/directors at KDKA are almost exclusive-
ly involved in local programming, which comprises
approximately one-quarter of the station's weekly
broadcast schedule. Newscasts, public affairs broad-
casts, and talk shows predominate in the local
program lineup. No local program has a set,
individual budget. Expenditures by produc-
er/directors for their assigned shows are subject to
prior approval and/or subsequent ratification via the
submission of written requests and expense records
to the programming manager or general manager. In
addition, the programming manager controls ex-
penditures through his reserved right of final approv-
al for program format and content.
Depending upon the particular program assign-
ment, a producer/director, as the title suggests, may
function as producer, director, or both. The producer
is concerned with the development of program
this organization exists for the purpose of representing employees in the
television industry in collective bargaining covering wages, rates of pay,
hours of employment, or conditions of work, we find and conclude that the
Petitioner is a labor organization within the meaning of the Act.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
content before the show is brought before the
cameras for taping or live broadcasting. A producer
is therefore a central figure in the selection of guests,
the determination of staff and set requirements, the
drafting of a program format or the more detailed
program script, and the circulation of program policy
memoranda. In performing these tasks, a producer
generally collaborates with on-screen talent, the
executive producer, and the program manager. The
director's role, in contrast to that of the producer,
focuses on the technical and aesthetic aspects of a
production; i.e., camera movement, sound level,
lighting, graphics, and artwork. Immediately before
and during an on-camera program session, the
director coordinates a team of studio technicians,
talent, and a floor manager in executing a telecast
which conforms to the timing and substance of a
format, script, or established production pattern.
While the cameras are operating, the director issues
instructions to production crew members3 via a
headphone system from his control position which is
surrounded by television screens, one of which
depicts action as will be seen by the viewing public,
and others which picture the studio set as seen from
the perspective of variously situated cameras. By
directing the "switching" of camera input, the
director determines which among alternative views
becomes the final program picture. Should any
technical problems occur during a studio session, the
director customarily prepares a discrepancy report
about the situation for the information of the
executive producer and program manager.
In addition to their particular program assign-
ments , producer/directors collectively participate in
several programming department or stationwide
activities. They attend weekly production meetings,
conducted by the executive producer and occasional-
ly attended by the program manager , at which all
aspects of programming department functions are
discussed. They also prepare for the program
manager their own annual "goals and objectives"
memoranda, which are evaluation forms critically
assessing the individual producer/director's past,
present, and projected involvement with KDKA and
including whatever recommendations the author
may wish to make. Finally, producer/directors
participate in the station's community ascertainment
program, which is required by the Federal Commu-
nications Commission as a prerequisite to license
renewal.
3 The floor manager uses hand signals to relay the director's instructions
to on-screen talent.
a Westinghouse Broadcasting Company, Incorporated/KYW-TV, 209
NLRB 788 (1974), enfd. 503 F2d 1055 (C.A. 2, 1974); Westinghouse
Broadcasting Company, Inc. (WBZ-TV)(WJZ-TV), 215 NLRB No. 26
The initial question presented herein is whether
KDKA producer/directors are supervisors within the
meaning of Section 2(11) of the Act. We note that the
facts and issues in this case are similar to those in
three other representation cases involving petitions
by Petitioner herein for units of producer/directors
at television stations owned and operated by West-
inghouse.4 In each of these cases, we found that the
activities of the producer/directors did not indicate
actual authority to independently make or effectively
recommend any of the personnel changes delineated
in Section 2(11); nor did we find that the act of stage
direction common to all directorial personnel in local
television productions at these stations constituted
"responsible direction" within the meaning of the
Act. Therefore, we concluded that the employees
involved were not supervisors. A close examination
of the record in this case necessitates the same
conclusion.
The authority to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline station employees, or to adjust their grievances,
clearly belongs to KDKA's general manager. Techni-
cians who man studio crew positions are members of
the engineering department, subject to the supervi-
sion of authorities therein, and insulated by unit
contract from any programming department supervi-
sion involving personnel changes such as are enumer-
ated in Section 2(11).5 Personnel action affecting
employees in the programming department is often
made upon the effective recommendation of the
program manager and executive producer. The
Employer cites testimony by its program manager
which suggests that in a very few specific instances
producer/directors have successfully recommended
the hiring, assignment , reward, or discharge of other
employees. The evidence is not conclusive as to
whether the actions referred to were taken in reliance
on a producer/director's recommendation or wheth-
er independent sources of information and recom-
mendations by recognized supervisors dictated the
result; nor does it appear that the sum of all
personnel changes allegedly imputable to producer/
directors' authority indicates anything more than
sporadic or irregular exercise of supervisory authori-
ty for which the Board will not exclude employees
from representation in a unit.6
Record testimony did reveal that produc-
er/directors, acting in the capacity of producer for a
particular program, book guests for single-show
appearances. Travel and accommodation expenses
(1974).
S The evidence indicated that discrepancy reports filed by produc-
er/directors had no material effect on personnel within the engineering
department.
6 Meyer Supermarkets, Inc, 142 NLRB 513 (1963).
WESTINGHOUSE BROADCASTING COMPANY, INC.
have been paid for some guests, while others have
contracted to perform at the lowest acceptable rate
of compensation, which varies between minimum
standards set by AFTRA contract and a $400
maximum imposed by the station's general manager.
Although every individual booking made by these
producers does not require prior authorization by
supervisors if made within strictly defined limits,
guest performances and compensation do, in fact,
require and receive independent scrutiny and final
approval by the program manager and/or general
manager before they can be initiated as a practice in
any program. Furthermore, the record showed that a
producer exceeding his booking authority by proffer-
ing unauthorized compensation was liable to repri-
mand by the program manager. Under the circum-
stances as described, we do not believe the limited
booking of program guests on a paid or expense-
allowance basis equals the supervisory authority to
hire within the meaning of the Act.7
As noted above, we have recently stated in other
cases involving the parties and issues herein that the
act of direction and issuance of stage instructions
does not per se reflect the supervisory authority to
"responsibly direct" other employees. The directions
given by KDKA directors are routine technical or
aesthetically motivated commands made pursuant to
preconceived production guidelines which have been
approved by higher authorities; the instructions are
independently executed by technical personnel al-
ready acquainted with the production plan who are
endowed with skills not generally native to the
director. In addition, it is apparent that a director is
not the sole employee capable of directing pro-
duction crew members . The technician crew chiefs,
members of the technicians' unit, have more authori-
ty over many aspects of a technician's studio
operations than do producer/directors, and directors
with technical staff problems seek their assistance .8
We conclude from the facts in this case that
producer/directors do not "responsibly direct" tech-
nicians, talent , associate producers, or fellow produc-
er/directors. We also reject the Employer's conten-
tion that they are fully answerable or responsible for
the performance of these individuals. The evidence
clearly shows that the chief engineer for television
bears the ultimate responsibility for technicians'
performance, while the programming manager and
7 The subsequent decision not to broadcast the taped performance of a
paid guest is a program policy matter determined by consultation between
the producer and the executive producer , and the resultant exclusion of the
performance does not indicate any supervisory authority to discharge
others . One producer/director testified that he had the paper authority to
remove a guest whose performance was unsatisfactory during an actual
taping session , but he has never done so.
8 Crew chiefs and technicians with seniority outearn producer/directors,
whose annual salaries range from $ 12,800 to $15,756. A crew chief with 4
329
executive producer bear the ultimate responsibility
for programming department employee perfor-
mance.9 Producer/directors function as employees in
an integrated production. process, exercising consid-
erable judgment only in respect to their own
responsibilities and not with respect to the direction
of others who are independently capable of fulfilling
their own assigned tasks.'°
Having found that KDKA producer/directors lack
any supervisory authority, we must decide whether
they are managerial employees, as the Employer
contends. KDKA producer/directors have been told
they are members of management by their superiors,
although no producer/director testifying believed
this to be so. Furthermore they have limited
influence on the Employer's budget. Produc-
er/directors, in conducting business pursuant to
specific program assignments, may incur limited
restaurant or guest travel expenses on behalf of the
Employer, and they must thereafter submit expense
records to the programming manager for approval.
One producer/director even drafted and utilized an
employment contract in booking paid guests which
he signed as the Employer's agent. He did so without
prior knowledge or approval from any superior at
KDKA. The booking procedure and rate limitations
embodied by the contract, however, were established
in advance of its creation and were determined by
recognized managerial authorities, the general man-
ager, and programming manager. Under the circum-
stances, we find no evidence that any produc-
er/director has any real or substantial discretion to
pledge the Employer's credit, absent established
controls and the approval of others. We also find
that, although KDKA producer/directors participate
fully in the planning and production of local
programs, as described above, they do so within the
parameters set by the Employer's established pro-
gram policy, which is determined and effectuated by
the station's general manager, programming manag
er, and executive producer, all undisputed manageri-
al personnel. Those individuals have the authority
and independent discretion to approve or reject any
policy recommendation by a producer/director.
Therefore, we conclude that producer/directors do
not exercise discretion in policy matters as would a
years' experience earns $17,966 under the unit agreement.
9 It is reflective of the ultimate responsibility of the executive producer
that she has insisted that her name appear in the program credits for each
local production for the express purpose of identifying herself as the
supervisor in charge, even though she may not have closely overseen the
instant production project.
19 Accord, Post-Newsweek Stations, Capital Area, Inc., 203 NLRB 522
(1973).
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truly managerial employee.ll We conclude that
KDKA producer/directors are not managerial em-
ployees within the meaning of the Act.
Associate Producer/Directors
The Employer contends that the station's two
associate producers are producer/director trainees,
perform many of the same tasks as produc-
er/directors, and should be excluded from the
proposed unit for the same reasons given for
exclusion of producer/-directors. Since we have
rejected the Employer's contention that produc-
er/directors at KDKA are supervisors or managerial
personnel, we do so also for associate produc-
11 See Eastern Camera and Photo Corp., 140 NLRB 569 (1963 ); General
Dynamics Corporation, Convair Aerospace Division , San Diego Operations,
er/directors and shall include them in the unit found
appropriate.
Accordingly , we find that the following employees
of the Employer at its television station , KDKA-TV,
in Pittsburgh, Pennsylvania, constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(c) of the Act:
All staff and freelance producer/directors, and
all associate producer/directors , excluding all
other employees , guards, and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
213 NLRB No. 124 ( 1974).