KXTV

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1203 (N.L.R.B. 1971)

KXTV
Great Western Broadcasting Corp. d/b/a KXTV1 and
American Federation of Television & Radio Artists,
AFL-CIO,2 Petitioner
Great Western Broadcasting Corp. d/b/a KXTV and
Local 659, International Photographers, Interna-
tional Alliance , of Theatrical ' Stage Employees and
Moving Picture Operators of the United States
and Canada, AFL-CIO, Petitioner .3 Cases
20-RC-9709 and -20-RC-9752
August 27, 1971
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor. Relations Act, as amended, a
hearing was held before Hearing Officer Donald E.
Twohey of the National Labor Relations Board.
Following the hearing, and pursuant to Section
102.67 of the Board's -Rules and Regulations and
Statements of Procedures, Series 8, as amended, by
direction of, the -Regional Director for Region 20,
these cases. were - transferred to the Board for
decisions.. Briefs filed by the Employer and by both
Petitioners have been duly considered by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the -Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in these cases, 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 Petitioners are labor organizations and
claim to represent certain employees of the Employ-
er.
3. A -question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of-the Act.
1 Hereinafter referred to as KXTV or Employer.
2 Hereinafter referred to as AFTRA.
Hereinafter referred to as IATSE.
The employees in the units sought by both petitioners are employed in
the Employer's program department . The general function of this
department is the preparation and presentation of programs which originate
locally, including news programs which the Employer presents daily. The
Board has held that either an overall program department or separate units
of employees regularly and frequently appearing before the microphone and
192 NLRB No. 176
1203
4. The Petitioner AFTRA in Case -20-RC-9709
seeks a unit of all of the employees-in the Employer's
news and production departments (program depart-
ment), including the announcer-director, producer-
directors, news and special reporters, anchormen,
continuity writers, commercial continuity employees,
staff artists, art director, floor crew chief, floormen,
studio operators, news assignment editor, and all
part-time employees, excluding `Connie Opp, who
though administratively in the, production depart-
ment performs functions normally performed 'in the
traffic and engineering department, excludingguards'
and supervisors.
The Petitioner IATSE requests a unit of all
employees in the film and commercial departments,
including photographers and film processors, and
excluding guards and supervisors.4
The Employer operates station KXTV, a commer-
cial television station with studios in Sacranfento,
California.
5. a. AFTRA petition: Case 20-RC-9709:
The employees in the unit - sought by Petitioner
AFTRA are largely those who are directly involved
in the staging of local 'studio programming and
include the following; news department employees
(anchormen, reporters, sports, and weather) who are
primarily, engaged in gathering, editing, writing, and
presenting news; art department employees engaged
in designing sets , and preparing graphic materials
used in local programming; floor crew employees
who are responsible for preparation of sets prior to
going on the air, and, when the show is on the air,
who operate the- television cameras and studio lights
and give cues, and instructions to station personnel
who appear before the cameras; and employees in
the commercial continuity section who are engaged
in the creation and development of commercial
advertisements shown on the air.
While the parties agree generally as to the inclusion
of the above-described employees in the unit sought
by AFTRA, the unit placement of certain of these
employees is in dispute.5 In addition, the parties are
in dispute as to the supervisory status of several
employees.
Commercial Continuity Employees: The Employer
would- exclude these employees from the AFTRA
unit on the basis that these employees in performing
their duties of- producing commercials are more
employees who do work preliminary to the telecasts may be appropriate.
Further, the'record establishes that history of bargaining-between Unions
and the Employer in the instant can has been within small groupings of
employees.
5 The Employer contends that the commercial continuity employees
should be excluded from 'the AFFRA unit. In addition , the Employer
contends that employees in the film department (part of the unit sought-by
IATSE), because of their community of interests , are more properly a part
of the unit sought by AFTRA.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly 'related to the functions of the sales depart-
ment.:These employees are primarily engaged in the
creation of commercials for advertising clients
secured by the Employer's sales department employ-
ees. After the sales account personnel secure an
advertising client- the ,commercial-continuity employ-
ees are contacted to work with the client and sales
personnel in, developing,the script and format for the
product the client- has to sell. After the,, format for a
commercial has been fully developed, -including the
art work requested for the commercial from the art
department and approved by the,parties, continuity
employees arrange, after the graphic and film
portions are completed, with the production manager
the necessary time to' tape the commercial. Then the
outline or "blueprint" for the ;commercial is given to
a director who is responsible for seeing that the entire
commercial is videotaped. The director, during the
videotaping is often accompanied by a commercial
continuity` employee who gives the director his views.
In addition, this department's employees receive
agency, regional, `and national videotape commer-
cials and instruct the traffic department on when to
run commercials in . conjunction with ' ' the daily
television broadcasts. The employees in this depart-
ment are ' assigned to and'are a part of the Employer's
program department. In our opinion, considering the
large part that advertising commercials play in the
overall programs televised for public viewing, we
conclude that the work of these employees contribute
directly •to' the Employer's local programming func-
tions. We shall include the commercial continuity
employees within- the unit sought:, by AFTRA.
Film Department Employees: IATSE has included
in its petition these employees in the Employer's
program department. AFTRA, while not including
these employees in its petition would include
employees requested in the IATSE petition if the
Board determined that a broader; unit than that
requested by AFTRA was appropriate. The Employ-
er contends that the, functions of the employees in
the film department are wholly unconnected with
news cameramen, . commercial photographers; and
film processing employees, who are either presently
represented by IATSE or included in IATSE's
proposed unit in its petition herein.
Film department employees, are engaged solely in
preparing films for, local telecasts which are clearly
and directly part of the Employer's programming
effort; thus, their interests lie directly with those
employe'es'-in the, proposed 'AFTRA `unit concerned
with local programming. We shall therefore include
these employees in the AFTRA unit and exclude
them from the unit proposed by IATSE.
6 WTAR Radio-,TV Corp.; 168, NLRB 976, 968; El Mundo, .Inc. (W1,cAQ-
TV Telemundo), etc., 127 NLRB 538, 540-541; Radio & Television Station
The, Employer would exclude, .from c ,•AFTRA's
proposed unit, the producer=directors, J,announcer-
director, assignment editor, chiefTfloorman; and the
heads of the art, film, and commercial continuity
departments as supervisors within' ^ the meaning of
Section 2(11)of-theAct. '< , `
Producer-Directors: The, Employer" has two'employ-
ees, Raney and Kelly,- who,, are regularly assigned
duty as television producer-directors,.-The evidence
in the record clearly establishes that-'the producer-
directors are responsible, for the coordination and
presentation of live news shows, videotaped and
special programs, -commercials, promotional spots,
and public service announcements. They responsibly
direct the employees involved in presenting the
shows whether acting as , the ^ director,, or as a
producer-director of shows for which they have full
responsibility from the planning stage through the
presentation over the air. We shall, therefore, exclude
them from the unit as supervisors within the meaning
of the Act 6
Announcer-Director: The Employer would exclude
one individual, Norman Bales, who acts in the
capacity of an announcer-director.- The Petitioner
would include this employee in the unit,, ,The
question is not presented as to ."thet , status of- this
individual, when performing his duties ^ as an an-
nouncer since such duties do- not, encompass any of
the indicia of a, supervisor under the Act. There is,
however, conflicting evidence, concerning, ^ Bales'
supervisory status when he, performs his duties as a
director. There- is the,, testimony that Bales- has in
pertinent part similar authority to that ; of the
producer-directors whom we have excluded from the
unit., However, there is other testimony ibidicating
that he does not ,possess, any of 'the indicia -of a
supervisor while; acting as a_ director, particularly
with regard to effectively recommending disciplinary
actions or the discharge or hiring of employees. We
shall therefore permit , Bales to vote., -,subject to
challenge.7
Chief Floorman: The Employer would exclude
employee Moadelli whom it has classified. as chief
floorman from the unit ,,as a 'supervisor, . .,within, the
meaning of the Act. The Petitioner would include
him on the basis that in,his_work,he functions as a
boss and not as a supervisor. The floor crew of ,which
Moadelli is a member is responsible'for,the operation
of the television cameras, for the; lighting, for the
giving of instructions or cues to the talent during,the
course of a program, for building, 'sets, -aid for
cleaning the studios (removal of props,-lights, and
sets), and,in general carrying out the directions df the
producer-director. Moadelli at the i start of his ^shifft
WWFLA, 120 NLRB 903, 904-905.
7 Cf. Radio & Television Station WFLA, supra at 905 .
KXTV - ' 1205
receives a schedule of the programming for the time
of his shift: The schedule is 'shown or posted for the
floor crew and;'as Moadelli testified, the experienced
floor crewmen, then go about their various -assigned
tasks. Moadelli works,along with,and performs the
same tasks as the other floormen in the crew. He can
grant time off to other crewmen for the purpose of
errands or something of that nature, but extended
leaves of absence must be approved by the pro-
duction manager. He is paid $5 per week more than
the other floormen. However, the chief fioorman
who takes over after Moadelli completes his shift
performs in the,same manner as does Moadelli and
receives no additional compensation. Moadelli can-
not hire employees, and, though he may be consulted
as to hiring or as `to the retention of a probationary
employee, the ultimate 'authority for, hiring an
employee is vested - in the production manager.
Moadelli is paid, as are other floormen, time and
one-half for overtime work. In our opinion, on the
basis of ` the evidence in the record, Moadelli
performs the' duties` generally performed by a
leadman or strawboss without having any of the
prerogatives generally attributed to a supervisor.
Accordingly, we shall include him in the unit.
Commercial Continuity: We'have previously deter-
mined that the employees in this section are properly
to- be included within AFTRA's requested unit. The
Employer would exclude employee Guy Weybright
as -a supervisor within the meaning of the Act. There
are 'three employees working in this department,
including Weybright.
There was testimony-offered by the Employer that
Weybright responsibly directs and evaluates the
work performances of the other employees and
exercises the authority effectively to recommend
hiring or discipline of other employees. However,
there was conflicting testimony to the effect that
Weybright does no more- than work .along with -the
other employee continuity writer and that they are all
engaged in developing ideas for commercials and
writing scripts for commercial spots. The work of
another employee in, this section, Ruth Madden, is
performed entirely independent of any supervision
by Weybright. In addition, there was testimony by
Weybright that he and his other coworker, McGov-
ern, work independently and, that after an assign-
ment each is unaware of what the'other is doing. In
view of this conflicting evidence which we are unable
to resolve on the basis of the present record, we shall
permit Weybright to vote subject to challenge.
Director Art Department: The Employer would
exclude employee Lentine, whom it has designated as
art director over the art department, as a supervisor
within the meaning of the Act. There are three artists
employed-by the Employer; Lentine, another full-
time artist, and one part-time artist. The work, of
these employees consists of, doing original art work
as requested by the program director and by the
sales , commercial continuity, promotion; and other
departments of the Employer. While the Employer
has conferred on Lentine the title of; art director, it is
well settled that title designations, by an employer do
not in and of themselves confer supervisory status on
an employee. The evidence in the record clearly
indicates that this designation was .given to Lentine
for housekeeping purposes in order to control the
workflow rather than to confer supervisory authority
on him. The evidence further shows thatthe artists at
all times work more or less independently of each
other and receive their assignments directly from
individuals employed in other , departments of the
Employer. In the hiring of anew artist, consideration
is given to Lentine's evaluation of the new artist's
ability, but he has no authority to hire of fire nor fix
the salaries of the other artists in the art department.
On the basis of the record herein we conclude that
Lentine is not a supervisor within the meaning of the
Act and shall include him in the unit.
Film Editor: The Employer's film department
employees were requested in IIATSE's petition, but
we have previously determined herein that such
employees' functions are more properly and directly
related to the unit requested by AFTRA. The
Employer would exclude employee Glenn White as a
supervisor. In 'addition to White, there is one, other
full-tilde , employee, Miller, in this departments The
work performed by these two employees is basically
the same and consists of working from order sheets
furnished by the continuity department, in inserting
commercials and public service announcements to be
combined in any show to be run over the air at any
given time. They both dissemble film after a,showing
and remove, and store the commercials and the film.
Both employees work 'a 40'hour week and are paid
for overtime. However, the two employees work
different 'shifts, White from 7 a.m. to 4:30 p.m. and
Miller from 9:30 a.m. to 5:30 p.m. No convincing
evidence was offered by the Employer to °establish
that White was in fact a supervisor' within the
meaning of the Act. It would appear that as a senior
employee he is vested with the- authority to see that
the department functions properly. Both White and
Miller are under the supervision` of the Empl`oyer's
production manager. It appears that White receives a
higher salary , than Miller. This, -however, can be
attributed to the fact that White has been in the
employ of the Employer for over 10 years and Miller
8 Simms, a regular employee in the commercial film department, works 1 Sitnms' worktime is spent in the film department which we have included in
day a week in the film department. In view of the fact that the majority of the unit requested by AF FRA,` we shall include him in such unit.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 years. The record discloses that under the Employ-
er's wage and salary practices employees receive pay
increases on the basis of length of service. There was
testimony that White could hire or fire employees,
but it was equally clear that he could do so only
when he had been directed to do so by the program
department manager . On the basis of the record, we
conclude that White is not a supervisor within the
meaning of the Act. Therefore, we shall include him
in the unit.
News Assignment Editor: The Employer would
exclude the news assignment editor, Kernan, as a
supervisor within the meaning of the Act. There is
conflicting testimony concerning Kernan's supervi-
sory status. The Employer's testimony as to Kernan's
duties would, if uncontradicted, have fully estab-
lished Kernan's status as a supervisor. On the other
hand, Kernan's own testimony would lead to the
conclusion that he is but a coordinator of news and
news services possessing none of the indicia required
by the Act to establish his status as that of a
supervisor rather than a crew leader. We shall
therefore permit Kernan to vote subject to challenge.
We shall exclude employee Connie Opp from the
unit. Although she is assigned to the Employer's
program department for administrative purposes, it
appears that her duties are more closely related to
those performed by the Employer's traffic and
engineering departments.
Part-Time Employees: AFTRA has included in its
petition certain part-time employees, including three
part-time floormen and a part-time artist employee
in the art department. The Employer would exclude
these part-time employees. The three part-time
floormen work regularly on an average of 2 days
each week for a total of approximately 16 hours per
week. The part-time artist is regularly employed for 2
or 3 days a week. Three part-time announcers are
employed by the Employer to record the audiotaped
voice announcements from the daybook. They have
a daily workload of approximately 2 hours which one
or more of them performs. They average between 5
and 6 hours of work a week. In view of the fact that
all of these employees are employed regularly on a
part-time basis, we shall include them in the unit .9
In view of the foregoing, we find in Case
20-RC-9709 the following employees of the Employ-
er constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.10
All employees in the Employer's News and
e Indiana Broadcasting Co., 121 NLRB I11; Cornhusker Television Corp.,
117 NLRB 1065, 1067.
10 Although the unit found appropriate herein is larger than that
requested by the Petitioner, we shall nevertheless direct an election to be
held, in view of the Petitioner's showing of interest, in a larger unit.
Production Section of its Program Department at
the Employer's Television Station, Great Western
Broadcasting Corporation, d/b/a KXTV, at
Sacramento, California, including employees in
the news department, commercial continuity
department, art department, film department,
floormen, announcers and regular part-time
announcers, floormen and artists, excluding
producer-directors, employee Connie Opp, pho-
tographers and film processors in the Commercial
Photography Department, guards and supervisors
as defined in the Act.
b. IATSE-Petition: Case 20-RC-9752: Petitioner
IATSE in its petition requests a unit comprised of all
employees in the Employer's program department
employed in the film production and commercial
photography sections of the program department.
We have previously determined that employees in
the film production department should be included
in the unit requested by AFTRA. Accordingly, our
consideration hereinafter is limited solely to the
employees in the Employer's commercial photogra-
phy department" of its program department.
The function of the employees in the commercial
photography department is to shoot film, other than
news film,12 using a motion picture camera. The
films consist primarily of commercial films required
by the continuity department and include documen-
tary films used in local programs. In performing the
latter function, they operate their cameras under the
supervision of a producer-director. In addition, these
photographers accompany continuity writers when
they are in the process of producing commercials at a
client's place of business or at whatever location is
designated. They also shoot slides of art work, slides
for commercials, promotional announcements, pub-
lic service announcements, and special holiday
identification slides. It appears clear from the record
that the employees are commercial cameramen and
perform work similar to the work of newsreel
cameramen who are presently represented by
IATSE. We shall therefore include them in the unit
requested by IATSE as hereinafter described and
modified.
The Employer would exclude Larry Roberts from
this unit as a supervisor within the meaning of the
Act. Roberts, commercial cameraman, devotes ap-
proximately 90 percent of his time to his duties as a
commercial photographer subject to the direction of
a producer-director or a continuity writer. There is
However, the Regional Director is authorized to permit the withdrawal of
the petition without prejudice upon the timely request of the Petitioner.
11 The Employer' designation.
12 News photographers employed by the Employer are presently
represented by IATSE.
KXTV
one other commercial photographer, Simms, in this
department 13 Both! of-' these' photographers perform
the same type of work under the direction of a
producer-director or ,a continuity writer. The evidence
indicates that because of Simms' part-time work in
another department a problem arose as ` to assign-
ments to be made- to the commercial photographers.
To alleviate this situation, the Employer decided, that
in the, first, instance all assignments be - originally
made to Roberts who in turn would split up the work
between himself and Simms. Once the,assignment is
made, both employees work independently of each
other. In addition, Roberts oversees the houseclean-
ing problems , resulting from the accumulation of
film, big reels, small reels, and pieces of film.
Roberts, with the help of Simms, performs these
housekeeping chores. Up to the time of the hearing,
Roberts had no authority to, recommend any change
in. Simms' salary which was based on the Employer's
scale for film editors. Roberts, on the other hand, is
paid a salary comparable to that of news cameramen.
The other employees in this department are a regular
full-time film processor and, a part-time film proc-
essor . There is no evidence that Roberts supervises
their work within the, meaning of the Act. Upon the
basis of the evidence,. we conclude that Roberts'
position is similar to that of a "straw boss."
Accordingly, we -shall include him in the unit.
In view of the foregoing, we find in Case
20=RC-9752 the following employees of the Employ-
er constitute an appropriate unit for the purposes of
collective bargaining within the, meaning of Section
9(b)'of. the Act.
A11' employees in the Commercial Photography
xs As previously noted, Simms works 1 day a week in the film
department.
14 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election' should have access to a list of voters in their
respective units and their addresses which may be used to commumcaate
with them . Excelsior Underwear Inc., 156 NLRB 1236; NLRB. v. Wyman-
Gordon Co., 394' U.S. 759. Accordingly, it is hereby directed that each
election eligibility list, containing the names and addresses of all the eligible
1207
Department of Great Western -Broadcasting
Corporation, d/b/a KXTV, Sacramento,.Califor-
nia, including the photographer's', , film .processor
and part-time film processors, i.' but-, excluding
guards and supervisors as defined in the Act.
[Direction of Elections 14' omitted :- from
publication.]
CHAIRMAN MILLER, dissenting in part:
I concur with the above ;findings,, except that I
would exclude' as supervisors, Announcer-Director
Bales , Commercial Continuity Supervisor Weybright,
Director of the Art Department Lentine, Supervisory
Film Editor White, and Supervisor of Commercial
Photography Roberts. All of these individuals direct
other employees- in activities which'.have ' peculiar
technical aspects and are not routine. Bales conced-
edly has the same authority - as other producer-
directors found to be, supervisors when directing
shows. He directs five shows each week which I
would find to be a regular exercise of supervisory'
authority. Weybright has made recommendations as
to wage increases and discipline. These recommenda-
tions have been followed; In' disagreement with my
colleagues I would find `Lentine to-have authority to
make effective recommendations as, to the hire of
employees, and that he does more than merely pass,
upon their technical competence. In" ;part this
conclusion is ' based upon his ' apparent ability to
influence the starting rate as in , the case of Dolder
who received more than the budgeted rate, upon his
recommendation., There is evidence that Roberts and
White have authority to grant time off and authorize
overtime. I would find them to be supervisorsalso'
voters, must be filed by the Employer with the Regional, Director for Regioii
20 within 7 days of the date of this Decision and Direction of Elections. The
Regional Director shall make the lists available to all parties to the
elections. ' No extension of time to file"this lists shall be 'granted ' by"the
Regional Director except in extraordinary circumstances .,Failure to comply
with this requirement shall be grounds for setting aside the elections
whenever propel objections 'are filed.
15 Harvill Corporation, 116 NLRB 1549.