Emil Denemark, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1951

96 N.L.R.B. 1087 (N.L.R.B. 1951)

EMIL DENEMARK, INC. 1087
Group 7: All sheet metal workers.
Group 8: All wood and metal patternmakers and casting engineers.
Group 9: All metal polishers, buffers, and platers.
Group 10: All foundry employees.
Group 11: All production and maintenance employees, including
refrigeration maintenance and installation employees, hammer re-
pairmen, wheel builders, and the tool and die hardener at the forge
plant, but excluding employees in the voting groups set forth above.
As' indicated above, we shall make no final unit determinations at
this time, but shall first ascertain the desires of the employees as
expressed in the elections hereinafter directed. If a majority in any
of voting groups 1 to 10, inclusive, vote for the labor organization
seeking that group as a separate unit, they will be taken to have indi-
cated their desire to constitute a separate appropriate unit.
[Text of Direction of Elections omitted from publication in this
volume.]
EMIL DENEMARK, INC. aM AMERICAN FEDERATION OF RADIO ARTISTS,
CHICAGO LOCAL, AFFILIATED WITfi THE AMERICAN FEDERATION OF
LABOR, PETITIONER. Case No. 13-RC-072. October 26, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Herbert M. Mintz,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Styles].
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 organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer, an Illinois corporation with its office and place
of business at Chicago, Illinois, operates radio station WEDC, an
unaffiliated station broadcasting 77 hours per week,, The station
•
1 The Employer is also an authorized Buick and Cadillac automobile dealer.
96 NLRB No. 159.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broadcasts programs in both the English language and in various
foreign languages. The Petitioner seeks a unit of all artists employed
by the Employer as actors, singers, and announcers to perform on
English language programs broadcast over Station WEDC. The
Petitioner asserts that the unit sought is appropriate because of the
bargaining pattern established in the Chicago area. It further asserts
that one of the announcers is a supervisor, and that all of the an-
nouncers who perform on foreign language programs, as well as
certain of the announcers who perform on English language programs,
are independent contractors. The Employer asserts, however, that
the unit sought is inappropriate, and that only a unit which included
all of its announcer-employees would be appropriate. It contends
that, with certain exceptions, all the announcers who perform over
Station WEDC are its employees within the meaning of the Act.
It further asserts that actors and singers should be excluded from
` any unit found appropriate herein.2
There are 17 individuals who announce on programs broadcast over
Station WEDC. Of these, 6 announce on English language pro-
,grams 3 and the remaining 11 on foreign language programs.4 Both
the English and foreign language announcers perform substantially
the same functions and duties. All of them broadcast from the same
studio, where they play recordings and transcriptions, gather, edit,
and broadcast news items, and write and broadcast commercial and
public service announcements. Moreover, all of them who are em-
ployees of the Employer are under the same immediate supervision.
In addition, certain of the English language announcers,6 but none
`of the foreign language announcers, make entries in the official pro-
gram log, maintained pursuant to the requirements of the Federal
Communications Commission, and make the necessary station an-
nouncements. Some of the announcers are paid a salary by the
Employer, some are compensated on the basis of commercial announce.
ments sold for broadcast on their programs, some are paid a com-
mission for procuring commercial announcements, and some are paid
on the basis of a combination of the foregoing methods. The Em-
ployer deducts social security and withholding taxes from the salaries
which it pays, with one exception, but does not make such deductions
from the other forms of compensation.
2 The record discloses that although actors and singers perform on programs broadcast
over Station WEDC, none of them are employees of the Employer . Some are employed
,by certain announcers while such announcers , as we find below , are acting as independent
contractors ; the others perform without compensation on public service programs. The
'Employer does not contemplate employing any actors or singers. Accordingly , we shall
;make no findings as to the unit placement of actors and singers . Cities Service Refining
Corporation, 94 NLRB 1634.
8 Becker , Brady, Cooper , Harley, Irving, and Mack.
4 Abramchik , Czuwara, Falta , Kanellos, Notari , Pedicini , B. Potuznik, V. Potuznik,
Voronko, Vrdsky , and Vrzal.
5 An English language announcer is on duty during all of the foreign language programs.
EMIL DENEMARK, INC. 1089
The record thus discloses that, although there are certain minor
variations in the announcers' duties and methods of compensation,
the announcers who are employees of the Employer are essentially
a homogeneous group with a substantial community of interest in em-
ployment conditions at the stations The fact that the Petitioner has
executed contracts with other stations in the area, limited to artists
who perform on English language programs, does not in itself con-
stitute a basis for reaching a contrary conclusion? There is, accord-
ingly, no basis in the record, other than extent of organization, for
finding appropriate a unit limited to English language announcers.
The Board is, however, precluded by Section 9 (c) (5) of the amended
Act from basing its unit findings on extent of organization alone.,,
We find, therefore, that a unit limited to English langauge announcers
is inappropriate, and that a unit which embraces all announcers who
are employees of the Employer is appropriate.
As noted above, the Petitioner contends that certain of the announ-
cers are not employees of the Employer within the meaning of the Act.
The parties agree that Brady, Harley, and Irving are employees of the
Employer, and that Cooper, Falta, B. Potuznik, and V. Potuznik are
not employees of the Employer. They disagree as to the status of the
remaining 10 announcers, the Petitioner contending, and the Em-
ployer denying, that Mack is a supervisor and that the others are
independent contractors.
We do not agree with the Petitioner's contention that Mack is a
supervisor. Mack's duties are essentially the same as the duties of
the other English language announcers, as enumerated above. Al-
though his salary is greater than that received by Harley and Irving,
it is less than that received by Brady who, the Petitioner agrees, is
not a supervisor. Mack has no authority to take action affecting the
status of the Employer's employees; nor does he responsibly direct
their work. All such authority is vested initially in Kotnour, the Em-
ployer's general manager. However, Mack initially interviews and
auditions all applicants for employment as announcers, and recom-
mends to Kotnour those applicants who in his opinion would qualify
for employment. Such applicants are then interviewed and audi-
tioned again by Kotnour, who makes his decisions on the basis of his
own observations. Mack's recommendations are therefore not effec-
tive recommendations within the meaning of the Act .9 As Mack
possesses none of the indicia of supervisory authority, we find that he
is an employee within the meaning of the Act, and he is therefore
included within the unit.
See Radio Station KHMO , 94 NLRB 1416; Port Arthur College, 92 NLRB 152.
, Bloomingdale Brothers , Inc., 81 NLRB 1252, 1254.
9 Dey Brothers & Co., 85 NLRB 689.
9 See Westinghouse Electric Corporation, 91 NLRB 955.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreign language announcers Abramchik, Kanellos, Notari, Pedi-
cini, Voronko, and Vrzal are known as "time brokers ." They pur-
chase time from the Employer and resell time to various sponsors.
They retain the profit, if any, which results from such transactions.
They are also paid by the Employer for any commercial announce-
ments procured by the Employer for broadcast on time purchased by
them. There was no evidence, however, as to the frequency or regu-
larity of such commercial announcements; of the above-named time
brokers, only Pedicini was engaged in making such announcements
at the time of the hearing in this proceeding. Programs broadcast on
time purchased by the time brokers are prepared by them and sub-
mitted to the Employer in advance of broadcast for the purpose of
enabling the Employer to determine whether such programs conflict
with the station's policies. The time brokers also on occasion hire
actors and singers to perform on such programs, but not in connection
with the commercial announcements mentioned above. Such actors
and singers receive no compensation from the Employer, but are paid
by the time broker or the sponsor; the Employer exercises no control
over their employment.
On the basis of the foregoing and the entire record, we find that
the time brokers are not employees, but are independent contractors,'°
except insofar as they are compensated by the Employer for making
commercial announcements. With respect to the latter activities they
are employees within the meaning of the Act, and as such are neces-
sarily within the unit for the purposes of bargaining with respect to
such employment 11 However, as the record does not establish that
such employment is either frequent or regular, we find that they do not
have a sufficient interest in employment conditions in the unit to be
eligible to vote in the election herein directed 12
Foreign language announcers Czuwara and Vrdsky, on the other
hand, do not purchase time from the Employer. They are compen-
sated by the Employer for commercial announcements on time sold
by the Employer, either through them or others, to sponsors. Vrdsky
also receives a salary from the Employer. On these facts, we find that
the status of Czuwara and VrdsVy is substantially the same as that
of Brady, Harley, Irving, and Mack. We find, accordingly, that they
are employees of Employer, and that * they are therefore included
within the unit.
English language announcer Becker works 2 hours per week as an
assistant to or substitute for one of the other announcers . He receives
no compensation from the Employer, but is paid by the announcer
whom he assists or for whom he substitutes. The record does not,
ao The Tames Herald Printing Company , 94 NLRB 1785.
n Port Arthur College, supra.
D. W. Bliss Company, 77 NLRB 1080.
PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1091
however, reflect whether such announcer is an employee or an inde-
pendent contractor, or contain any other evidence sufficient to enable
us to determine that Becker is presently an employee of the Employer.
We shall, therefore, make no findings as to Becker's status at this
time, but shall permit him to vote subject to challenge in the election
herein directed. If his ballot is determinative of the results of the
election, we shall direct that a further investigation be conducted to
determine his status as an employee of the Employer.
We find, accordingly, on the basis of the foregoing and the entire
record, that all announcers employed by the Employer at Radio Sta-
tion WEDC, Chicago, Illinois, but excluding supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
PHILLIPS & BUTPORFF MANUFACTURING COMPANY and UNITED STEEL
WORKERS OF AMERICA, CIO. Case No. 10-CA-1023. October 29,
1951
Decision and Order
On June 22, 1951, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain dther unfair labor prac-
tices alleged in the complaint and recommended dismissal of those
allegations. Thereafter the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications :
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby violating
'Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member
panel [Members Houston, Reynolds , and Styles].
96 NLRB No. 173.