Westinghouse Radio Stations, Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1946

69 N.L.R.B. 269 (N.L.R.B. 1946)

In the Matter of WE,,'1IaoI3uuSE RADIO STATIONS, INC. and NATIONAL
ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS
Case No. 4.-R-1964.-Decided July 'L, 1946
Mr. John W. Steen, of Baltimore , Md., and Mr. Lester R. Rawlins,
of Philadelphia , Pa., for the Company.
O'Donoghue , Dunn & Mills , by Mr. Lawrence J. Mills , of Washing-
ton, D . C., for Nabet.
Mr. Leonard B. Boudin, of New York City , for the A. C. A.
Me. Lewis H. Ulman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
ST ATENIENT OF THE CASE
Upon a petition duly filed by National Association of Broadcast
Engineers and Technicians, herein called Nabet, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Westinghouse Radio Stations, Inc., Philadelphia, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Helen F. Humphrey, Trial Examiner. The hearing was held at
Philadelphia , Pennsylvania , on April 30 . 1946. At the hearing the
Trial Examiner granted a motion of American Communications Asso-
ciation, C. I. 0., herein called the A. C. A., to intervene. The Com-
pany, Nabet, and the A. C. A. appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues.
The Trial Examiner 's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. Subsequent to the hear-
ing the A. C. A. filed an unfair labor practice charge alleging that
the Company had violated Section 8 (1) and (5) of the National
Labor Relations Act (Case No. 4-C-1616). The A. C. A. moved
that the petition herein be dismissed because of the pendency of
that charge. The Company moved (1) that the charge of the A. C. A.
be dismissed , or (2) that proceedings thereunder be stayed pending
the outcome of this representation proceeding , or (3) that both pro-
69 N L. R B., No 31 269
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceedings be consolidated for the purpose of hearing . However, the
Regional Director for the Fourth Region has administratively dis-
missed the A. C. A.'s charge by refusing to issue a complaint. The
motions made by the Company and the A. C. A. are accordingly de-
nied. Also after the hearing the A. C. A. moved to dismiss the petition
on various other grounds. For reasons set forth in Section III, int, a,
the motion is denied.
Upon the entire record in the case , the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Westinghouse Radio Stations, Inc., is an Indiana corporation en-
gaged in radio broadcasting and the operation of radio broadcasting
stations, including Radio Station KYW located in Philadelphia,
Pennsylvania.
Radio Station KYW is operated under a license from the Federal
Communications Commission and is affiliated with the National
Broadcasting Company's network, which is a Nation-wide broad-
casting organization. Programs of the National's network, which are
broadcast through the Company and transmitted locally by Radio Sta-
tion KYW, constitute 58 percent of the station's business. Approxi-
mately 60 percent of the Company's total broadcasts is received by
wire from sources outside the Commonwealth of Pennsylvania. The
Company receives a substantial part of its revenue from advertisers
who are engaged in interstate commerce.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. TIIE ORGANIZATIONS INVOLVED
National Association of Broadcast Engineers and Technicians, un-
affiliated, is a labor organization admitting to membership employees
of the Company.
American Communications Association, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has declined to grant recognition to Nabet as the
exclusive bargaining representative of certain of its employees until
Nabet has been certified by the Board in an appropriate unit.
On August 7, 1941, the Board certified the A. C. A. as the bargaining
representative of the employees here involved after a stipulation for
WESTINGHOUSE RADIO STATIONS, INC. 271
Certification on Consent Comparison of Records.' After prolonged
negotiations the Company and the A. C. A. signed a contract for 1
year on April 25, 1942. On August 21, 1943, the parties entered into a
new contract for 1 year with a 60-day automatic renewal clause. The
automatic renewal provision was stayed in 1944 in accordance with
its terms by seasonable notice from the A. C. A. that it wished to
negotiate a new contract.
Thereafter, the contract of August 21, 1943, was continued in effect
with certain modifications by an oral understanding, later con-
firmed by a letter to the A. C. A. from the Company, dated November
7, 1945. The Company's letter stated that the 1943 contract, as modi-
fied, was to be deemed operative from "November 7, 1945, and will
govern the relationships between the parties, pending the outcome of
the points still in dispute. On these items in dispute, the terms of the
existing agreement will continue to govern pending final agreement
on the disputed issues." Previously in 1945 these disputed items had
been submitted to the Third Regional War Labor Board, which had
issued a Directive Order dated October 18, 1945. It later issued a
second Directive Order, dated November 14, 1945.2 Both parties then
appealed to the National War Labor Board, which subsequently issued
two Directive Orders, each dated December 21. 1945, denying both
appeals and affirming the October 18, 1946, Directive Order of the
Third Regional War Labor Board.
Nabet made its demand for recognition upon the Company and
filed its petition herein on January 28, 1946. Because of the conflict-
ing demands of Nabet and the A. C. A. the Company has refused
to enter a new contract with A. C. A. embodying the provisions of the
War Labor Board's Directive Orders.
The A. C. A. argues that the Allis-Chalmers doctrine 3 is applicable
to the facts in this case, and that its contract of August 21, 1943, as
extended, also constitutes a bar to the present proceeding.
As we have frequently pointed out, however, the principle enun-
ciated in the Allis-Chalmers case is limited to situations where a newly
certified union has been denied a fair opportunity to demonstrate its
ability to obtain for its members the benefits of collective bargaining
because of delays occasioned by its resort to the orderly processes of
other governmental agencies' In the instant proceeding the A. C. A.
has been the statutory representative of employees of the Company
since 1941 and had enjoyed 2 full years of contractual relationship
with the Company before War Labor Board proceedings were insti-
tuted. Accordingly, the Allis-Chalmers doctrine is not applicable•
' Matter of Westinghouse Radio Stations, Inc Operating KYTV, 33 N L R B 1240
2 The second Directive 01 der was supplement to the one of October 18, 1945
3 Matter of Aldus Chalmers Manufaetni ing Company, 50 N I, R B 306
4 Matter of _Northwest Packing (o , 64 N L R R 54
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here, as the A. C. A. was not a newly certified bargaining agent when
the War Labor Board proceedings were initiated.5
As noted above, in 1944 automatic renewal for another year of the
agreement of August 21, 1943, was forestalled by timely notice from
the A. C. A. Thereafter, this contract was continued in effect by an
oral understanding which was confirmed by the Company's letter to
the A. C. A. Thus, no new written agreement executed by both par-
ties, ever came into existence.6 Assuming, however, that the Com-
pany's confirmatory letter constitutes a written contract between the
parties, extending the 1943 agreement, we nevertheless find that there
is no bar to a current determination of representatives. For it is clear
from the facts that the 1943 contract was extended by the Company
and the A. C. A. for an indefinite period of time.7
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
The Company's letter of confirmation setting forth the period dur-
ing which the 1943 contract was to be extended indicates that this
agreement was continued in operation for an indefinite length of
time. As the Company's Manager for Industrial Relations testified,
the 1943 contract was extended until a new contract could be signed.
IV. THE, APPROPRIATE UNIT
In accordance with the agreement of the parties, we find that all
broadcast technicians of the Company in the broadcast engineering
department of Station KYW, Philadelphia, Pennsylvania, excluding
technical supervisors, the chief engineer, the station manager, and
all other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.'
5 See Matter of Armour and Company, 66 N. L. R B 324, and cases cited therein.
See Matter of Eacor, Inc, 46 N L R B 1035
We Matter of The Union Fork h Hoe Company , 63 N L. R. B 194.
8 At the hearing the Company and Nabet requested that the Board describe the unit as .
All employees in the Technical Department of the Company' s Philadelphia Radio Sta-
tion KYw and KYw-FM engaged in the operation and maintenance of those facilities
of the Technical Department used in transmitting , converting, and/or conducting audio,
FM, Facsimile , Video, and/or radio frequencies for use in broadcast , re-broadcast,
audition, rehearsal, recording or nav of the technical equipment used in connection
with any of the above, excluding all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of employees
or effectively recommend such action.
However, all parties agree that this defines the appiopi late unit in no different manner
than we have described it above The description we have utilized is virtually identical
to that contained in the previous proceeding affecting the Company's employees (see footnote
2, supra)
WESTINGHOUSE RADIO STATIONS, INC. 273
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Westinghouse
Radio Stations, Inc., Philadelphia, Pennsylvania, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Fourth Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during such pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether they desire to
be represented by National Association of Broadcast Engineers and
Technicians, or by American Communications Association, C. I. 0.,
for the purposes of collective bargaining, or by neither.
701.542-47- -vol 6!)- -19