Westinghouse Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1974

215 N.L.R.B. 123 (N.L.R.B. 1974)

WESTINGHOUSE BROADCASTING CO 123
Westinghouse Broadcasting Company, Inc.
(WBZ-TV) and Directors Guild of America, Inc.,
Petitioner.
Westinghouse Broadcasting Company, Inc.
(WJZr-TV) and Directors Guild of America, Inc.,
Petitioner . Cases 1-RC-13147 and 5-RC-8865
November 26, 1974
DECISION AND DIRECTION OF ELECTIONS
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a petition duly filed on February 13, 1974,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held in Case
1-RC-13147 before Hearing Officer Francis X. McDo-
nough of the National Labor Relations Board on
March 6-8 and 26-28, 1974. Following the hearing and
pursuant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, and by direction of the Regional Director of
Region 1, this proceeding was transferred to the Board
for decision.
Upon a petition duly filed on February 14, 1974,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held in Case
5-RC-8865 before Hearing Officer Jacquelyn J. Gard-
ner of the National Labor Relations Board on March
20 and 21 and May 1 and 2, 1974. Following the hear-
ing 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 Direc-
tor for Region 5, this proceeding was transferred to the
Board for decision.
The Employer and the Petitioner filed consolidated
briefs for both cases.'
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 Hearing Officers' rul-
ings made at the hearings and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in these proceedings 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.'
i The Petitioner requests and the Employer opposes formal Board consoli-
dation of these cases We find and conclude that the similarity of issues in
fact and at law justifies joint consideration and determination The cases are
hereby consolidated.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer 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. In Case 1-RC-13147, the Petitioner
seeks to represent a unit of all staff and freelance pro-
ducer/directors, associate directors,' and assistant
directors employed by the Employer at its television
station, WBZ-TV, in Boston , Massachusetts. In Case
5-RC-8865, the Petitioner seeks to represent a similar
unit of all staff producer/directors and all others doing
the work of directors employed by the Employer at its
television station, WJZ-TV, in Baltimore, Maryland.
The Employer contents that the proposed units are
inappropriate for collective-bargaining purposes be-
cause all employees to be included therein are supervi-
sors and/or managerial employees.
The Employer, an Indiana corporation with its prin-
cipal office in New York City, owns and operates
television stations WBZ and WJZ as members of its
nationwide Group W broadcasting system. The sole
product of each station is broadcast programming,
aired to the public approximately 18-21 hours daily.
Each station's broadcast schedule includes a mix of
network (NBZ is an NBC affiliate; WJZ is an ABC
affiliate), syndicated, and locally produced programs.
The chain of command and functional organization
at WBZ and WJZ are essentially the same. The ulti-
mate daily responsibility for running each broadcast
facility belongs to the general manager, to whom the
five departmental managers report. A program depart-
ment, under the supervision and control of the program
manager and his subordinate, the executive producer,
is responsible for the presentation of all programs of
local origin. The program department is subdivided
into four departments at WBZ and five departments at
WJZ. One subdivision, the production department, in-
cludes the unit employees at issue here: 8 producer/di-
rectors and 5 assistant directors among approximately
23 department employees at WBZ; 6 producer/direc-
tors among approximately 24 department employees at
WJZ. A production supervisor is in charge of produc-
tion department operations.
Producer/Directors
2 The Employer declined to stipulate the Petitioner is a labor organization
In light of the Board's decision in Directors Guild of America, Inc., 198
NLRB 707 (1972), enfd 494 F 2d 692 (C A 9, 1974), and the record
evidence that this organization is created 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
3 There are currently no freelance producer/ directors or associate direc-
tors at WBZ, although there have been employees so designated in the past
215 NLRB No. 26
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Producer/directors are primarily involved in the
presentation of local programming, which consists of
news, sports, and regular features or "specials" in the
areas of public affairs, community interest, and chil-
dren's entertainment. Responsibilities in network or
snydicated programming are limited to routine moni-
toring, or "control producing" functions, and WBZ,
occasional editing of motion picture films. The pro-
gram manager assigns producer/directors to specific
programs and the production supervisor schedules
their workweek. For certain shows the producer/direc-
tor, as the title implies, serves as both producer and
director. For other projects, most notable newscasts,
there is an independent producer and the producer/di-
rector is limited to directorial duties. Most producer/
directors are involved in more than one program.
As a producer engaged'in the planning stage of a
production, a producer/director exercises the greatest
influence on program content when assigned to the
development of proposals for entirely new productions
or remote location broadcast variations of established
shows. Anyone, station employee or outsider, can pro-
pose a telecast to which a producer/director may
subsequently be assigned as producer. The develop-
ment of a program proposal typically involves: prelimi-
nary consultation with the idea's progenitor and pro-
gram department supervisors; outlining the anticipated
format of the show and indicating staff, set, and budget
requirements; subject to the prior approval of superi-
ors, production of a "pilot" program; and, subject to
final approval, inclusion of the production in the broad-
cast schedule.
If the producer/director is assigned to produce a
show which is already a regular station feature, an
established production pattern sets the parameters
within which that person must work. Under these cir-
cumstances, producer has routinely collaborated with
the program 's on-screen "talent" in planning sessions,
booked paid and unpaid guests for appearances on a
show, and successfully recommended or independently
initiated variations in set, script, style, and location.
Very few programs have a fixed supplemental budget,
and any expenditures against such budgets by pro-
ducer/directors are subject to prior authorization.
When the producer/director is acting as director, he
or she is concerned with the technical demands and
audio-visual aesthetics of a production. Several written
or implicitly understood guidelines affect the director's
role. A production manual (all Westinghouse news-
cast) or customary production pattern (many sports
telecasts, talk shows) standardizes the presentation of
several programs and limits technical variations in set
construction, camera angle and movement, selection
and sequence of camera shots, lighting, sound, color,
and artwork. A producer/director may have had origi-
nal input in devising the standard production mode. A
commercial log, prepared by another department at the
station, lists the number and length of local commer-
cials to be inserted in each program of the entire broad-
cast day. A format, generally elaborated into a com-
plete script, details the substance, timing , and sequence
in which all program material, including commercials,
is to be presented.
The director works in concert with talent, any sepa-
rate producer, assistant directors (either a person of
that title or a fellow producer/director), and whatever
number and kind of studio production personnel are
required for a particular program. Prior to the actual
taping of a live broadcasting session, the director re-
views the script or format and informs the producer of
any difficult or unfeasible aspects to the show. Or-
dinarily, the director may not overrule the producer
regarding a matter of program content. The director
then instructs the studio technical crew, either in-
dividually or collectively, regarding light and camera
positions, set construction, audio requirements, and the
timing and procedure to be followed while in produc-
tion. If film or sound cartridges and visual print over-
lays are to be used, the director must be sure such items
are in the specified sequential order in the appropriate
technical hands.
During on-camera production of a show, the director
is stationed in a control room before a bank of switches
and television monitors, each screen representing the
view from a different camera. The director is in charge
of "switching," electronically shifting the recording or
broadcast signal between monitoring screens and thus
deciding which among alternative camera views actu-
ally becomes the program picture. The director also
communicates with all members of the technical studio
crew, a floor manager, and the producer, all of whom
have a.script. While the cameras are activated, a direc-
tor speaks to talent through the floor manager, who
cues the talent on stage by hand or voice signals. Typi-
cal instructions for the director to the production crew
include telling the appropriate technician to: activate or
shut off light and sound stage equipment; start or stop
tape machinery and audiovisual projection devices;
take certain camera shots; and, adjust the audiovisual
quality of the broadcast picture as monitored in the
control position.
It is clear from the record that in normal circum-
stances producer/directors at WBZ and WJZ do not
have supervisory authority "to hire, transfer, suspend,
lay off, recall, promote, discharge, assign , reward, or.
discipline other employees . . . or to adjust their griev-
ances, or effectively to recommend such action" within
the meaning of Section 2(11) of the Act. The authority
to effect personnel changes, including change involving
producer/directors, is vested in the station's general
WESTINGHOUSE BROADCASTING CO. 125
manager who often acts after consultation with the
departmental manager in charge of the employees to be
affected. The assignment of production crew members
to particular programs on which a producer/director is
working is the responsibility of the technical supervisor
in the engineering department or the production super-
visor, who is under no obligation to honor a produc-
er/director's requests for the assignment of specific
individuals to a crew. Although it is common practice
for producer/ directors to make written or verbal re-
ports to the production supervisor and program
manager critically assessing individual job perform-
ances in their production crews , the evidence fails to
show that these reports have had any significant in-
fluence on the station 's personnel policy.
There is evidence of a few isolated instances in which
producer/directors at WBZ or WJZ have recom-
mended the hiring, transfer, promotion, or discharge of
an employee, and such action was ultimately taken. In
all but one of those instances, the record is not conclu-
sive as to whether action was taken by supervisors only
after independent investigation of a producer/direc-
tor's recommendation. In addition, producer/directors
may occasionally work their production crews over-
time, consistent with established policy to complete a
program already in progress necessitates exceeding
scheduled working hours. As to adjusting grievances,
there is no evidence that WBZ producer/directors deal
with the grievances of other employees. WJZ Produc-
tion Manager Dooley testified generally that produc-
er/directors at his station unofficially adjusted griev-
ances , but cited only one specific example . We find that
any participation by producer/directors in making or
effectively recommending personnel decisions have oc-
curred on a sporadic or irregular basis; the Board has
held that it will not exclude persons as supervisors if
they exercise supervisory authority only on such a
basis.'
Much confusion regarding the alleged supervisory
authority of producer/directors stems from the natural
implications of their job title. The presumption that a
producer/director directs others is unavoidable. Such
direction as is given, however, may not amount to re-
sponsible direction within the meaning of Section
2(11). The Board has never considered titles as deter-
minative of supervisory status. "The important thing is
the possession and exercise of actual duties and au-
thority and not the formal title."' In our opinion,
producer/directors at WBZ and WJZ do not "responsi-
bly direct" others in the performance of their duties.
Prior Board decisions which have found that Produc-
er/directors or directors do responsibly direct other
4 Meijer Supermarkets, Inc., 142 NLRB 513 (1963)
5 NLR B v Southern Bleachery & Print Works, Inc, 257 F 2d 235, 239
(C A 4, 1958)
employees are factually distinguishable. The produc-
tion roles of individuals considered therein typically
involved authority tantamount to "full responsibility
from the planning stage through the presentation on
the air."' The responsibilities of producer/directors at
WBZ and WJZ are far more circumscribed. Their ac-
tivities are similar to those of producer/directors at
another Westinghouse television station, KYW-TV, in
Philadelphia. The Board has previously determined
that producer/directors at KYW do not responsibly
direct and are not supervisors.'
Producer/directors in the present cases do instruct
members of a production crew in preparation for and
during actual filming of a television show. The instruc-
tion given, however, is either routine in nature or moti-
vated by artistic effect. It is clear that the producer/di-
rector is limited by preexisting production policies or
the detailed guidelines of a script. Under such condi-
tions producer/directors use no independent judgment
and serve merely as conduits in issuing orders which
crew members, each supplied with a script, already
anticipate and are independently capable of achieving.
Other directions which describe a desired artistic effect
may not contain the precise information necessary for
their technical fulfillment. In fact, the producer/direc-
tors are not themselves endowed with the technical
expertise necessary to execute many of their own direc-
tions. In this respect they are distinguishable from the
typical plant supervisor who has risen from the ranks
and possesses the same skills of those whom he may
train and direct.
The mere absence of close supervision by recognized
station supervisors over individual production crew op-
erations does not per se clothe a producer/director with
the supervisory mantle. The same is true of the fact that
during slack local production hours in late evening or
on weekends all program department supervisors may
be absent from the station while producer/directors
remain. The Board finds greater significance in the
routine or the artistic nature of the jobs performed by
the producer/directors and their coworkers than in the
absence of designated supervision.'
Remuneration by the Employer is often an impor-
tant factor in distinguishing between supervisory per-
sonnel and employees. In this respect, we note the un-
disputed testimony by producer/directors that senior
technicans and crew chiefs, represented in their own
bargaining unit, earn more per annum than themselves.
6 Great Western Broadcasting Corp. d/b/a KXTV, 192 NLRB 1203, 1204
(1971)
7 Westinghouse Broadcasting Company, Incorporated/KYW-TV, 209
NLRB 788 (1974), enfd F 2d (C A 2, 1974) (Case 4-CA-6581)
B See Morris Weiss d/b/a Mook Weiss Meat Packing Company, 160
NLRB 546 (1966), where an alleged supervisor was merely a conduit for
relaying instructions to experienced employees in the absence of an admit-
ted supervisor
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, all producer/directors who testified did
not consider themselves to be supervisors, in spite of
what they may have been told by the station's manage-
ment , and the evidence failed to indicate that any other
employee considered producer/directors to be supervi-
sors.
We conclude from the entire record in these cases
that producer/directors function not as supervisors,
but as part of an integrated production team, each
member of which is independently capable of executing
his assignment. The role of the producer/director is
therefore analogous to that of radio newsroom editors
in relation to local reporters and to newscasters. In
another Board case it was decided:
. . . the excellence and great responsibility re-
quired of the editors involves only their obliga-
tions with respect to the development of their own
work product and how it fits into the formulation
of the broadcast schedule and the station's scheme
of operation, and not with respect to the direction
or control of the activities of other employees.
Consequently, it does not reflect supervisory
status.9
Having concluded that producer/directors are not
supervisory, we must briefly consider the Employer's
alternative contention that they are managerial em-
ployees and as such must be excluded from a Board
representation election.10 The Employer alleges, and
we do not dispute, that: producer/directors have been
told they are managerial ; they participate in the sta-
tion's community ascertainment program, which is re-
quired by the Federal Communications Commission;
they discuss program policies with supervisors in
weekly production meetings; they occasionally distrib-
ute policy statements of their own composition; they
have limited censorship responsibilities in film editing
or during tape-delay broadcasts; and they are responsi-
ble for the "look of the show."" None of the above
activities, however, indicates managerial status within
the meaning of the Act, unless they involve the exercise
of discretion independent of a superior's approval of
the Employer's established policy.12
The record indicates that any involvement by pro-
ducer/directors at WBZ and WJZ in the formulation
or effectuation of station management policies is sub-
ject to the approval of undisputedly managerial per-
sonnel , such as the general manager , program man-
ager, and executive producer. These same individuals
control the station's purse strings, as is clearly illus-
trated by the fact that deletion of commercial time in
baseball telecasts or any pledge of the Employer's
credit requires their approval. In addition, producer/
directors must adhere to established station policies
expressed by the Westinghouse policy manual, FCC
regulations, program production manual, depart-
mental directives, and preconceived production prac-
tices. We find that while producer/directors may
exercise considerable discretion in executing their
assignments, such discretion cannot exceed the
bounds of policy determined by others. Therefore, we
conclude producer/directors are not managerial.
Assistant Directors
There are five assistant directors at WBZ whom the
Petitioner seeks to represent. These employees are paid
weekly on an hourly wage scale. Russell Grant, an
assistant director at the station for 15 years, makes
$4.30, by far the top rate among assistant directors. The
production supervisor supervises assistant directors
and schedules their programming responsibilities.
Assistant directors function in several capacities: (1)
as control producers; (2) as floor managers; (3) as
"grips," employed in studio set construction, mainte-
nance, and removal; and (4) as assistants to the pro-
ducer/director on a program, assuming the more per-
functory production responsibilities. In addition, as-
sistant directors occasionally perform duties identical
to those of a producer/director.
The record clearly does not support the Employer's
contention that these employees are supervisors or
managerial employees within the meaning of the Act.
The discussion of the issues above applies as well to
assistant directors when they operate as producer/di-
rectors. All other assistant director functions are rou-
tine and have no station policy effect whatsoever.
Accordingly, we find that the following employees of
the Employer at its television stations in Boston, Mas-
sachusetts, and Baltimore, Maryland, constitute units
appropriate for purposes of collective bargaining
within the meaning of Section 9(c) of the Act:
WBZ- TV
All staff and free lance producer/directors, all as-
sociate directors, and all assistant directors.
9 Post-Newseek Stations,, Capital Area, Inc., 203 NLRB 522 (1973)
10 NLR.B. v BellAerospace Company, Division of Textron, Inc, 416 U S
267 (1974).
11 As to collective bargaining , the only evidence of producer/ director
involvement is that in the summer of 1973, WJZ Producer/ Director Keys
attended a contract negotiation session as a back-row observer
12 See Eastern Camera and Photo Corp, 140 NLRB 569 (1963), General
Dynamics Corporation, Convair Aerospace Division, San Diego Operations,
213 NLRB No 124
WJZ- TV
All staff producer/directors and all others doing the
work of directors, excluding all others.
[Direction of Elections and Excelsior footnote omit-
ted from publication.]