WFMF

National Labor Relations Board - Board Decisions

Aug 16, 1972

198 N.L.R.B. 923 (N.L.R.B. 1972)

CENTURY BROADCASTING CORP. d/b/a/ WFMF 923
Century Broadcasting Corporation d/b/a WFMF and
American Federation of Television and Radio
Artists , AFL-CIO, Chicago Local , Petitioner. Case
13-RC-12609
August 16, 1972
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 2, 1972, the Regional Director for
Region 13 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found the freelance announcers sought to be repre-
sented by the Petitioner to be employees and not
independent contractors. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, the Employer filed a
timely request for review, contending, inter alia, that
the Regional Director, in finding the freelance
announcers to be employees, made findings of fact
which were erroneous and departed from officially
reported precedent.
On June 19, 1972, by telegraphic order, the request
for review was granted.
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.
Tire Board has considered t it eritu'erecoidii i s
case with respect to the issues under review and
makes the following findings: i _
The Employer operates four radio stations. The
only station involved in this proceeding is station
,WFMF in Chicago. Apart from four supervisors
(general manager, engineering director, program
director, and sales director) the station employs a
regular staff of two office clerical employees and
seven engineers.2 It also utilizes the services of the 11
freelance announcers sought herein. The station's
operating format consists of 54 minutes each hour of
taped ";adult" music, together with four breaks
(totaling ' 6 minutes) which are scheduled for the
purpose of broadcasting commercials, station identi-
fication, and news, weather, and sports headline
I We are 'of the opinion that the Employer' s allegations in its request for
review as t8 prejudicial error in the Hearing Officer's rulings are without
merit
2 The engineers have been represented separately for approximately 25
years by Local 1220, International Brotherhood of Electrical Workers.
AFL-'AO, which intervened in this matter to protect its unit in the event
the Board reached the Employer's alternate contention that only an overall
unit was appropriate The Intervenor does not seek to represent the
announcers sought by the Petitioner
3 Back announcing refers to the announcement of the title and other
information about a musical selection before it is played
4 A recording session for each announcer may involve anywhere from
announcements. Like the music, substantially all of
the announcements are taped-the general manager
estimated that less than one announcement per hour
in each 24-hour period is live. The station's musical
selections which, with the exception of a 1-hour daily
segment, are not back announced3 are made princi-
pally by the general manager and the program
manager so that the announcer's functions are
related entirely to the commercials and other
announcements.
The generaT manager, in auditioning for announc-
ers, looks for individuals who have substantial
broadcasting experience and are skilled in projecting
a slow, deliberate, adult sounding voice in keeping
with the image the station seeks to maintain. If the
auditioned announcer is acceptable, a per session
fee4 is negotiated with him and he is placed on the
station's announcer list. There is no evidence that a
written agreement is ever entered into between the
station and the announcer.
At the beginning of each week, the Employer's
traffic clerical employee calls the announcers on the
list to arrange taping sessions for Thursday or Friday
of the week when the station has engineers available
to operate the recording equipment. The station
attempts to rotate the announcers used in order to
have a variety of voices. When called for a taping
session, the announcers are completely free to accept
or reject the work or to schedule a session on those
days to suit their convenience. The announcers reject
assignments offered them because of previous com-
mitments or for several other reasons, all of which
reasons are accepted by the Employer. For instance,
because some announcers are identified with a
particular product or sponsor, they usually refuse to
tape commercials for competing products or spon-
sors. Also, some of these announcers have cultivated
large advertising accounts in their freelance work
and refuse to make announcements for smaller
accounts. Furthermore, even when an announcer
does agree to tape for the station, should he
subsequently find more lucrative work, he is free to
obtain a substitute from the station's list . In this
event, he pays the substitute. Substitutes are used on
30 to 40 percent of the announcements each week.
The announcer is provided a copybook and a list of
the announcements which are to be taped.5 In
approximately 4 to 12 commercials or "spots" The per session fee
arrangement herein means the announcers are paid for the individual
sessions regardless of the number of commercials or "spots" recorded
during the session or the number of times they are broadcast
5 Most of the commercial copy is prepared and supplied by the
advertising agencies or sponsors purchasing time In some instances, the
station is supplied only with facts to be utilized in the commercials and the
announcer either prepares his own copy or records without copy The copy
for the I-hour back-announced program is prepared by the announcer who
records that program The station does not review copy prepared by its
announcers
198 NLRB No. 132
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preparing the tapes, the announcer and the engineer
use the station's recording facilities and equipment.
No supervision or direction is provided by the
Employer during the taping sessions. The inflections,
pauses, idiom, and mood projected on a particular
announcement are left entirely to the discretion of
the announcer. Upon completion of a tape, only the
engineer and the announcer review the tape-the
former listening for technical quality and the latter
for substantive quality of the tape.
Following the taping session, each separate an-
nouncement is assigned a number and placed in the
station's library. Thereafter, the engineer responsible
for a given segment of broadcast time is furnished a
log prepared by the Employer's regular staff which
contains the tape numbers of the music and
announcements in the sequence in which they are to
be broadcast. The engineer pulls the appropriate
tapes from the library and plays them over the air in
the proper sequence.
The breaks for news, weather, and sports headline
announcements require the presence of an announc-
er on a frequent basis. However, announcers per-
forming the news broadcasting functions are free to
tape such announcements although the taping must
be relatively current. These, like other announce-
ments , are prepared without direction or supervision.
The announcer selects the news headlines which are
to be broadcast.
While the announcers are compensated bimonthly,
as are regular staff employees of the station, they are
not carried on the station's payroll. They receive
checks drawn on the station's general expense
account rather than its payroll account. As previous-
ly noted, they are compensated on a per session basis
but they receive no compensation if they perform no
work during the pay period. The fees for the different
announcers vary and they appear to result from
negotiation between the announcer and the general
manager. The announcers receive none of the fringe
benefits available to regular employees and no
deductions are made from their compensation checks
for income or social security taxes. The check for the
work done by one announcer is made payable to a
company bearing his name.
6 Some of the announcers involved herein 'announce or perform at
several other stations. One of the announcers performs such a substantial
amount of commercial announcing outside this station that the Employer
utilizes him only to record station breaks . Other announcers perform
freelance work in Detroit and New York.
r See Strand Art Theatre, Inc., 184 NLRB No. 72; American Guild of
The announcers on the Employer's list all have
substantial broadcast announcing or public speaking
experience. All either hold staff positions or do
extensive freelance work at other Chicago radio and
television stations, advertising agencies, and public
relations operations.6 Several of the announcers
maintain business phones or answering services and
advertise their talent in a local trade publication.
There is no evidence the announcers are required to
or do identify themselves with the station, nor is
there any evidence that the station attempts to
impose any limitations on their other activities.
Although the general manager testified that he could
terminate the announcers at will and that he could
require them to retape an announcement, there is no
evidence that this has ever occurred.
Having considered the entire record, especially the
lack of supervision or review of the announcers' work
by the Employer, their complete freedom to accept
or reject assignments offered them or to select
substitutes from the Employer's list , their broad
latitude in scheduling taping sessions, and the
absence of any restriction as to their outside work,
we are persuaded the Employer exercises little, if
any, control over the manner or means used by the
announcers in performing their work. Although the
Employer auditions the announcers before retaining
them and retains the right to terminate them, such
facts are not inconsistent with the conclusion we
have reached but indicate merely that the Employer
retains control over the ultimate result to be
accomplished; i.e., to broadcast its commercial and
other announcements. Accordingly, we conclude that
announcers utilized by the Employer are independ-
ent contractors and not its employees.? We shall,
therefore, dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
Musical Artists, AFL-CIO, 157 NLRB 735; Radio City Music Hall Corp. v.
United States, 135 F.2d 715 (C.A. 2). In our view, those cases relied on by
the Regional Director and other cases where the Board has previously
found freelance announcers to be employees involve substantially more
control over the manner and means of accomplishing the work than is
present here.