Westinghouse Radio Stations, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1954

107 N.L.R.B. 1407 (N.L.R.B. 1954)

WESTINGHOUSE RADIO STATIONS, INC. 1407
Members of an executive committee acting on behalf of
the employees have negotiated with the Employer concerning
grievances. The Employer is holding in escrow dues deduc-
ted under the contract. The UE has appointed an administrator
to service the contract, but at the time of the hearing he had
not taken any steps to do so. It does not appear from the
record that Local 110 has any members at the Employer's
plant.
In view of the foregoing, we conclude that for all practical
purposes Local 110 is defunct. Under all these circumstances
we find that the existing contract is not a bar to the petition. 8
We further find that a question affecting commerce exists
concerning 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. The following employees constitute a unit appropriate
for collective bargaining within the meaning of Section 9 (b)
of the Act: All production and maintenance employees of the
Employer, excluding salaried employees, office and clerical
employees, laboratory workers, watchmen, timekeepers, in-
spectors, laboratory workers, executives, and supervisors as
defined in the Act.9
[Text of Direction of Election omitted from publication.]
Member Rodgers took no part in the considerationof the above
Decision and Direction of Election.
8Benjamm Air Rifle Company, supra; Franklin Throwing Company, 101 NLRB 153.
9 The unit conforms to the stipulation of the parties as well as the contract unit.
WESTINGHOUSE RADIO STATIONS, INC. covering RADIO
STATIONS KEX and KEX FM and AMERICAN FEDERATION
OF TELEVISION AND RADIO ARTISTS, PORTLANDLOCAL,
AFL, Petitioner. Case No. 36-RC-932. February 26, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing and a reopened hearing were
held before E. G. Strumpf, hearing officer. The hearing offi-
cer's rulings made at the hearings are free from prejudicial
error and are hereby affirmed.
On January 14, 1954, at Washington, D. C., the Board heard
oral argument in which all parties participated.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to representcer-
tain employees of the Employer.
107 NLRB No 282.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning 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. In 1946, after a stipulation for certification upon consent
election, he Board conducted an election and certified the
predecessor of the Petitioner , herein called AFTRA, as bar-
gaining agent for a unit of staff announcers , actors, singers,
commentators, and newsmen at KEX.1 In this proceeding,
AFTRA seeks an election in an overall unit of all employees
appearing regularly or frequently before the microphone,
thereby seeking to add to the certified unit the farm director,
sports director , children program performers , home eco-
nomics personnel , and also the two musicians but only to the
extent that they perform nonmusical services . The Intervenors,
American Federation of Musicians of the United States and
Canada, and its Local No. 99, AFL, herein called AFM,Z oppose
the inclusion of the musicians for any part of their services.
The Employer seeks a dismissal of the proceeding , contending
that the appropriate unit is the certified one.
Since the 1946 certification, the contractual bargaining unit
has consisted of staff performers only,3 with the exception of
the home economics director, who was covered by the 1953
contract4 and whom the Employer and AFTRA have stipulated
should be included in the unit. In view of the history of collec-
tive bargaining in this unit , and the outstanding certification,
the appropriateness of a unit of the staff performers is not in
issue. It is necessary , however , to determine the status and
functions of employees sought to be added to the unit.
Sports director: Bob Blackburn is the Employer's sports
director. The terms of his employment, confirmed by memo-
randa, require him to prepare and present a 10-minute daily
sports broadcast and to provide advice and services concerning
sports broadcasting . He has agreed to refer to himself as the
KEX sports director, and to appear on its behalf in a public
relations manner as a sports man at various functions and be-
fore various groups and civic organizations. His employment
is terminable at will , and he is free to , and does, broadcast
on other stations . He has been a free-lance sports announcer
at KEX for 2 years, and in the summer of 1952 also substituted
for staff news announcers on vacation.
Children program performers: Robert Amsberry, George
Cole, and Merrie Fenton are special program performers or
'The Employer and AFTRA have stipulated that any unit found appropriate should be
worded to cover KEX-FM as well as KEX.
2 After the original hearing, the Board granted AFM's motion to intervene and to reopen
the record.
3There are now 7 staff announcers and newsmen and 2 regular part-time staff announcers.
4 This contract, which was executed by the Employer and AFTRA on January 23, 1953, and
which expired October 20, 1953, extended contractual coverage also to women activity di-
rectors and to all specialists after 10 consecutive weeks of employment. However there is no
record of such persons presently being employed.
WESTINGHOUSE RADIO STATIONS, INC. 1409
feature artists , who are hired by individual contracts for
periods of 1 or 2 years. The contracts provide that the artists
grant the Employer "executive control of [their] radio services
in the Portland area, "that the Employer shall have full ic-
sponsibility for and control over the general program format,"
and that it " shall, at all times , control [their] actions on the
program ," and "may change the form or nature , the time .
frequency . . . length of such program , or discontinue its broad-
cast completely ." Like the sports director , they do not have
the seniority rights of the staff announcers, nor the fringe
benefits . There is no claim that any of them is a supervisor.
The Employer contends , first, that these performers, in-
cluding the sports director , are independent contractors and
secondly , " assuming their employee status , they have no such
community of interest with the employees in the unit as to war-
rant their inclusion ." As to their status, it seems apparent
that the Employer exercises sufficient control over their work
to preclude their being independent contractors , even though
the children program performers ' contracts provide that they
are engaged as artists , not employees . As to the second con-
tention, the Board first decided this issue to the contrary in
KMOX Broadcasting Station , 10 NLRB 479 , and since then has
consistently included such employees in performers units.
Therefore , we find that these employees may properly be
added to the existing unit.
Continuity writer : Janet Lyon is a continuity writer who also
conducts her own home demonstration show for the station
once a week , and appears on another home economics program
daily with the home economics director . She is paid a weekly
salary, presumably in compensation for both her continuity
writing and the performances on the air . The Employer makes
no specific contention as to her. As her di r ties and interests
are closely allied to those of the other announcers and per-
formers, we find that she may also be added to the existing
unit.
Farm director : Ivan Jones is employed in the capacity of
farm director . He conducts a 60-minute farm program from
6 to 7 a. m. daily. He 'signs on the station, at 5:30 a. m. and
performs staff announcing functions until he goes off the air
at 7, handling the spot announcements , giving station breaks,
and reading the 5-minute newscast and weather report, as well
as reading his farm copy and playing his tape recordings.
During the day he performs the usual duties of a farm editor,
answering his mail, making tape recordings of interviews,
appearing at various meetings on behalf of the Employer,
maintaining contact with farm leaders and organizations, and
keeping abreast of the latest in agricultural developments. He
was hired as a staff announcer in 1950, and made farm director
in 1951 without any college or special training in the subject.
He is the only person in the "farm department ," and he takes
general instruction from the program director about the type
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of material to prepare for his farm broadcasts . While on va-
cation, his place is taken by a substitute announcer who works
during the whole summer , relieving announcers on vacation.
The Employer contends that Jones is both a supervisor and
a managerial employee, contending that he is in charge of the
station from 5:30 to 8:30 a. m.; that it "would be inclined to
accept any recommendations that he would make . . . with re-
spect to other personnel " (although no such recommendations
have ever been made); that he is in charge of station personnel
who might appear on "farm originations"; that, when he is avail-
able, he attends the supervisory staff meetings where company
policy is discussed ; that he is not paid for overtime ; that he
has a "supervisory" expense account ; andthatheis considered
a part of management . As to his being in charge of the station
early in the morning , we find that his authority is no different
from that of the staff announcer in charge on evenings and
other times when no supervisor is present . Neither do we find
that he responsibly directs or supervises any of the station
personnel on any studio programs or on remote broadcasts.
Although he may attend supervisory staff meetings5 and has a
supervisory expense account,' these factors are more than
outweighed by his announcing and specialist activities which
are comparable to those of concededly nonsupervisory person-
nel who are included in the bargaining unit. While we make no
finding as to the status of farm directors at other stations, we
find that this farm director is neither a supervisor nor a
managerial employee, and accordingly find that he may be
added to the existing unit.
Musicians : John Emmel and Fred McKinney are employed
as instrumental musicians , for specified weekly salaries, under
the terms of a collective- bargaining agreement between the
Employer and AFM. Emmel plays the organ on two daily
musical programs , on which he also engages in ad-lib conver-
sations; and , as the station ' s musical director , leads a weekly
panel discussion program on which no music is played. McKin-
ney plays a piano on one of the daily musical programs, on
which he likewise engages in the ad-lib conversations . AFTRA,
contrary to AFM and the Employer, would include these musi-
cians in the performers unit because of their speaking role
before the microphone. However , as their ad-lib comments on
the daily programs and Emmel's participation on the weekly
panel show are merely incidental to their duties as musicians,
we find that they should be excluded.
As the above-mentioned special program andfree - lance per-
formers have been previously excluded from the contractual
and certified bargaining unit, whichwe find also to be appropri-
ate, and as we believe that these fringe employees should be
5 There is no showing how often he attends such meetings.
6Under the last AFTRA contract, all staff artists were reimbursed for travel and "actual
legitimate expenses incurred."
DETROIT ALUMINUM & BRASS CORPORATION 1411
given the opportunity of expressing an independent choice of
whether or not they desire to be included in the existing unit,
we shall order an election only among these nonstaff employees.
Accordingly, we shall direct an election among employees
in the following voting group : All free-lance and special
program performers at the Employer ' s Portland , Oregon,
radio stations KEX and KEX -FM, including the sports director,
children program performers , the continuity writer , and the
farm director , but excluding the musicians.
If a majority of the employees in the voting group cast their
ballots for AFTRA, they will be taken to have indicated their
desire to be included in an overall performers unit which, in
such event we find to be appropriate . ? If a majority of them
vote against AFTRA, they will be taken to have indicated their
desire to remain outside the existing unit , and the Regional
Director will issue a certification of results of election to
that effect.
[Text of Direction of Election 8 omitted from publication.]
7 As the Board has considered AFTRA's offers of proof with respect to the musicians'
duties, and has assumed for purposes of this decision that the facts asserted therein are
true, we find without merit AFTRA's contention that it was denied a proper hearing on
remand. As the Board has considered AFM's original brief and as AFM's reply brief and
motion dated November 18, 1953, were not filed in accordance with the Board's Rules and
Regulations, we grant AFTRA's motions to strike the reply brief and motion. However, we
deny AFTRA's motion to strike the amici brief filed by Mount Hood Radio and Television
Broadcasting Corporation (KOIN); KPOJ, Incorporated; KXL Broadcasters; and Pioneer
Broadcasters, Inc., radio stations in Portland, Oregon, despite the procedural defect in
filing the brief.
8This direction of election is made contingent upon AFTRA's adequate showing of interest
among the employees in the voting group. Absent such a showing within 10 days hereof, the
Board will dismiss the petition, without prejudice.
DETROIT ALUMINUM & BRASS CORPORATION and INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
UAW-CIO, Petitioner. Case No. 8-RC-1967. February 26,
1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by
the Board on June 22 , 1953, an election was conducted under
the supervision of the Regional Director for the Eighth Region,
among the production and maintenance employees at the Em-
ployer's Bellefontaine, Ohio , plant, to determine whether or
not they wished to be represented by the Petitioner for the
purpose of collective bargaining . Approximately 94 employees
were eligible to vote; of these 32 voted for the Petitioner and
54 against. There were also 6 challenged and 1 void ballot.
107 NLRB No. 285.