Southwest Texas Public Broadcasting CouncilDownload PDFNational Labor Relations Board - Board DecisionsJan 27, 1977227 N.L.R.B. 1560 (N.L.R.B. 1977) Copy Citation 1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwest Texas Public Broadcasting Council and KLRN Production Employees Guild , Petitioner. Case 23-RC-4328 January 27, 1977 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert G. Levy II of the National Labor Relations Board on January 15 and 16, 1976. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 23, this proceeding was transferred to the Board for decision. Thereafter, the Employer and Petitioner filed briefs. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding the Board finds: 1. Southwest Texas Public Broadcasting Council (herein also called KLRN-TV or the Employer) is a private, nonprofit, tax-exempt Texas corporation; it maintains and operates a noncommercial educational television broadcasting station in the San Anto- nio/Austin, Texas, area. The Employer contends it is not an "employer" within the meaning of Section 2(2) of the Act. The Employer was established in 1961 through the efforts of the University of Texas (herein called the University), a political subdivision of the State of Texas, and Robert F. Schenkkan, a university profes- sor and director of the university radio station, in conjunction with an existing educational television corporation in San Antonio and various private backers. KLRN-TV operates under a Federal Com- munications Commission license held in its name and currently owns approximately $1 million worth of equipment, including a transmitter, a microwave tower, and buildings and property at vanous broad- casting studios. In fulfillment of its stated educational purpose, KLRN-TV broadcasts a full spectrum of i Programs broadcast in January 1976 included , inter a(ia, "Sesame Street," "The Electric Company," "Six Wives of Henry Viii," "The Adams Chronicles," "Washington Week in Review ," and the "Dance in America" series 2 While the record is somewhat unclear on this point, it appears that the superintendent of schools of the San Antonio school district selects a trustee Another trustee , representing San Antonio College, also a public institution, is apparently selected by that institution 's president J These private institutions include vanous institutions of higher learning, private colleges, and a private research institute Their respective trustee representatives are selected by their respective presidents 4 The management contract requires that operating policies established 227 NLRB No. 217 educational programs from 7 a.m. to 12 midnight daily.' The Employer's articles of incorporation and bylaws provide for a 50-member board of trustees composed of 16 "institutional" and 34 at-large trustees. The at-large trustees are appointed by the board as a whole and serve staggered terms. Of the 16 "institutional" trustees, 8 are appointed by the board of regents of the University, who are in turn appoint- ed by the Governor of Texas; 2 are appointed by public institutions in San Antonio; 2 and 6 are appointed by various private institutions in San Antonio.3 The University does not possess the authority unilaterally to appoint at-large members. Nor can it remove trustees in any category from the board. The board of trustees directs the Employer's programming policies and establishes all personnel and operational policies for KLRN-TV. Soon after KLRN-TV was established, the board of trustees entered into a management contract with the Univer- sity, which has remained in effect at all material times herein, by virtue of which the University manages the station. Pursuant to this agreement, the Employer pays the University a flat fee of $5,000 annually for the University's "indirect costs" related to managing and supervising KLRN-TV, and an additional, and apparently negotiable, sum to defray "direct costs" arising from the directing, programming, operating,4 and maintenance services provided by the Universi- ty5 and its personnel. In return the University is required to provide the Employer with studios and production equipment. The use of these facilities is restricted, however, to "such times and in such manners as not to interfere with or reduce the normal responsibilities of the Radio/Television activities of the University." Thus, the Employer is allowed to use part of the University's "Communications Building B" which houses other non-KLRN communications programs. In addition, the University is required to make available the managerial services of the director and the associate director of the University's commu- nications center, Robert Schenkkan, and Harvey Herbst, respectively, as well as the technical expertise of the communications center's radio/TV engineer- by the board of trustees are "mutually agreeable to the University " However, there is no indication in the record that the University possesses or exercises any veto power or otherwise controls the formulation of such policies , including those related to labor relations matters, other than through whatever influence the eight trustees appointed by the University's board of regents may be willing or able to exert on its behalf 5 In fiscal 1961 the Employer budgeted $12 ,792 to the University to cover these costs and in 1976 it budgeted approximately $15,000 However, a recent reassessment of costs for physical plant maintenance and utilities for KLRN studios led the Employer to increase this amount to $33,401 to cover, in full, the University 's costs in operating and maintaining these facilities SOUTHWEST TEXAS PUBLIC BROADCASTING COUNCIL 1561 ing director, Noyes Willett, and radio/TV/film specialist, Billy Arhos.6 The University is reimbursed by the Employer for a portion of the salaries of the above individuals commensurate with the amount of time which they devote to the Employer's opera- tions.7 In its capacity as general managerial and executive agent for the Employer, the University, pursuant to the management contract, is further required to prepare and submit for the Employer's approval a detailed operating proposal and various comprehen- sive budgets for each fiscal year. After the budgetary proposals have been approved by the Employer's board of trustees the University may incur obliga- tions against the Employer and make purchases for the Employer within the confines of the approved budget. The Employer has custody of its funds and maintains its own accounting records, thereby retain- ing ultimate control over its finances. Further, the University is contractually prohibited from spending funds appropriated to it by the legislature of the State of Texas to fulfill its contractual obligations with the Employer and the Employer assumes the legal and financial responsibility for any injury incurred by individuals providing services under the contract or for damage to any property used for the Employer's operation. In fiscal 1976, the Employer's total revenues from programming were $3,028,981, of which $410,750 derived from grants from the Corporation for Public Broadcasting, a private nonprofit corporation estab- lished to promote the growth and development of public broadcasting, and an organization called Pi Beta Phi; $1,478,640 from a contract with the Department of Health, Education and Welfare (HEW)8 and $607,991 from contracts with the State of Texas.9 Additional revenues of $530,000 are derived from membership contributions, donations, underwritings, advertising in a program schedule published by the Employer, fundraising events, and videotape rentals.10 6 There is no evidence that Herbst, Willett , and Arhos were trained by Schenkkan or that these individuals are "concerned with the University's curriculum" as the dissent would find. 7 In fiscal 1976 , this sum was budgeted at $51,347 8 The HEW contract provides funds for the production of "Carrascolin- das," a bilingual multicultural television series for children from 8 to 10 years of age. Under this contract, the Employer selects a project manager and TV director subject to HEW 's approval which has apparently always been given 9 From 8 a.m. to 3 30 p.m. on weekdays during the school year, the Employer broadcasts instructional TV programs for utilization by contract- ing public and private elementary and secondary schools Payment is based on a fee of 75 cents per student paid by the schools with matching funds from the State An advisory committee composed of school district superinten- dents works with the Employer 's personnel to establish programming policies The dissent apparently refers to these funds in concluding that "A not insubstantial part of the Employer's total budget" derives from the State of Texas 10 The Employer has exclusive responsibility for producing all videotape The Employer's board of trustees has designated Schenkkan as president and general manager" and delegated to him the authority to hire and fire employees, establish working conditions, and set wage rates. Schenkkan is directly responsible to the board of trustees in establishing and implementing such policies. The board of trustees has also appoint- ed Herbst, the associate director of the communica- tions center, vice president, and station manager of KLRN-TV.12 Schenkkan has delegated to Herbst responsibility for the day-to-day operations of KLRN-TV. Herbst's responsibilities include produc- tion of programs,13 the daily operation of the transmitter and control room, and oversight of other administrative and clerical details, as well as manage- ment of the Employer's budget. Like Schenkkan, Herbst, according to his testimony, is directly respon- sible to the board of trustees, rather than to the University, for the daily operations of the station.14 As the general manager of KLRN-TV, Schenkkan has decided, on his own initiative, to adhere to the University's hiring and employment policies where practicable. Following this practice, the Employer has occasionally utilized the University's personnel office to secure applicants for some positions.15 All applicants, regardless of how they are recruited, must complete a KLRN-TV application, are interviewed and hired solely by the Employer's personnel, and, thereafter, receive a letter printed on the Employer's stationery, confirming their employment, if hired. Further, while KLRN-TV employees enjoy some of the same benefits as university employees (sick leave, reduced tuition, and university ID cards), the Em- ployer's benefits package differs substantially from that of the University. For example, the Employer maintains a separate retirement fund for its employ- ees who are not eligible to participate in the Universi- ty's plan, offers different health and life insurance benefits, and different holidays and vacations, and sets its own scale of wages, which are paid out of the Employer's central office by its own payroll officer. The independence of the Employer's employment broadcasts used as classroom and extracurricular aids for university students. 11 Schenkkan spends 25 percent of his time working for the Employer and thus a cor responding portion of the armual salary of $40,000 he receives from the University is paid by the Employer. 12 While Herbst is paid through the Umversity and, like Schenkkan, receives employment benefits from the University based on his total salary, one-half of that amount , or $14,780, is paid by the Employer 13 Decisions as to program content or whether a particular program should be broadcast are made by the Employer's professional staff, including Schenkkan, Herbst, and various program directors Neither the University nor its board of regents has veto power over the Employer's programming policies 14 When the Union began its organizational campaign at the Employer, for example, Herbst consulted with the board of trustees rather than the University. 15 The actual number of employees hired by the University 's personnel office comprises only one sixth of the Employer's total complement. 1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy is further exhibited by the fact that its policy is set forth in various "policy memoranda" printed by the Employer, as contrasted with the University's separate and self-contained employee handbook. In addition to the Employer's regular employees, indivi- duals engaged in institutional internship programs, two graduate students at the University and part- time, work-study program students 16 were also working for the Employer at the time of the hearing herein. The Employer contends that it is a political subdivision of the State of Texas, on grounds that it was created and developed by the University and that, by virtue of its management contract with the University and the University's representation on the board of trustees, the University administers the Employer's day-to-day operations, including its labor relations policies. Alternately, the Employer contends that it is a joint employer with the University because the University's agents, Schenkkan and Herbst, manage the Employer's operation and control its labor relations policies. Finally, the Employer con- tends that, although it meets the Board's discretion- ary monetary jurisdictional standards, its primary purpose is so intimately related to the exempt educational purposes of the University that the Board should decline to assert jurisdiction, citing, inter alia, Overbrook School for the Blind, 213 NLRB 511 (1974). As to the Employer's first contention, we find, under the standards set forth by the Supreme Court in N. L. R. B. v. The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600 (1971), that the Employer is not a political subdivision. Thus, the Employer was neither created directly by the State, so as to constitute a department or administrative arm of the government, nor is it administered by individu- als who are responsible to public officials or to the general electorate.17 Although the University, which is clearly a political subdivision of the State of Texas, was instrumental in establishing the Employer, owns the facilities from which the Employer operates, and, pursuant to the management contract, manages the Employer's operation, it is clear that the Employer was established as a private corporation under a corporate charter bearing its own name, operates under an FCC license also bearing its own name, fully compensates the University for the use of its facilities and personnel pursuant to the operating agreement, and, as discussed below, controls its own operations, including employment and labor rela- tions policies, through its board of trustees. This 16 The record does not specify the number of individuals involved in such programs , whether they are paid and, if so, by whom, or the duration of their association with Employer In addition , it is not clear from the record whether or not these individuals are employed in unit classifications. It is clear, however, that college work-study personnel are specifically excluded from the unit board is composed of 50 members, a majority (34) of whom are private citizens not appointed by or subject to removal by the University. Of the remaining 16 institutional members, only 8 are appointed by the University and 2 are appointed by public institutions in San Antonio. Thus, only 10 of the 50 trustees are selected by, but are not themselves, public officials and no trustee is responsible directly to the public. Significantly, both the representation of public insti- tutions on the Employer's board of trustees and the number of trustees appointed by such institutions are determined solely by the Employer's own articles of incorporation. is Based on the foregoing, and in the absence of any evidence that the 10 institutional trustees wield influence over the decisions and policies of the board of trustees out of proportion to their numbers, we find the Employer is not a political subdivision of the State of Texas. With respect to the Employer's contention that it is a joint employer with, or controlled by, the Universi- ty, we find that the Employer controls its own operations, including those related to labor relations. It is clear that the board of trustees controls the financial aspects of the Employer's operation. Thus, the University's expenditure of funds on behalf of the Employer is restricted to the confines of a budget which has received prior approval of the board of trustees. Further, the Employer maintains its own financial records which are not subject to review by the University, pays for the use of the University's equipment, facilities, and personnel pursuant to its management contract with the University and as- sumes financial responsibility for any damage to persons or property. In addition, the University makes no cash contributions to the Employer and is contractually prohibited from committing any state- appropriated funds to fulfill its contractual obliga- tions with the Employer. Furthermore, the board of trustees establishes all programming, personnel, and operational policies of the Employer and there is no indication that the University controls the formula- tion of such policies other than through whatever influence its eight trustees are willing or able to exert on its behalf. As to Schenkkan and Herbst, who admittedly are university employees holding top managerial posi- tions with the Employer, both were hired by and are responsible to the Employer's board of trustees when performing management function for KLRN-TV. They are fully compensated by the Employer for their services and are restricted in the implementation of 17 N.LR B v The Natural Gas Utility District of Hawkins County, Tennessee, supra at 604-605 18 Minneapolis Society of Fine Arts, 194 NLRB 371 (1971) SOUTHWEST TEXAS PUBLIC BROADCASTING COUNCIL 1563 policies and day-to-day management of the Employ- er's operations by the parameters of general policy established by the Employer's board of trustees. Additionally, the management contract between the University and the Employer protects the operations of each party from interference by the other. Similarly, there is nothing in the management contract between the University and the Employer which requires the Employer to follow the Universi- ty's hiring and employment practices; rather, Schenk- kan has, on his own initiative, followed such practices and only to a limited extent. The Employer uses the University's placement office infrequently and even then the Employer's employees interview and hire job applicants. Further, the Employer's benefit package, including holidays and vacations, retirement benefits, and life insurance benefits, differs substantially from that of the University, which enumerates its employ- ment practices in a separate handbook not utilized by the Employer. Finally, the Employer sets its own wage scale and disburses paychecks to its employees. Based on the foregoing facts we find that the Employer is neither controlled by, nor a joint employer with, the University and that it maintains sufficient control over its operation, including its labor relations policies, to engage in effective collec- tive bargaining. 19 Regarding the Employer's final contention that the Board should decline to assert jurisdiction because the Employer is an adjunct to or has a special relationship with the University, we find that the Employer's purpose is not intimately related to the exempt functions of the University. The Employer's relationship with the University is not legislatively mandated, but is purely contractual.20 The Employ- er's operational funds concededly exceed the jurisdic- tional standard normally applied to the ra- dio/television industry,21 and derive from diverse sources, including several outside the State of Texas. Further, while the Employer is involved in the operation of an educational television station, its programming is for the most part designed to serve the general public. In addition, the KLRN-TV employees in the unit sought are involved primarily in production of television programs rather than in aiding the University in performing its educational function.22 In these respects the Employer is not 19 Bishop Randall Hospital, 217 NLRB 1129 (1975) 20 Compare, Transit Systems, Inc, 221 NLRB 299 (1975) 21 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958). 22 Compare , Current Construction Corp., and Samuel M Wagner, 209 NLRB 718 (1974). 23 Viewer Sponsored Television Foundation, Inc d/b/a KVST-TV, 217 NLRB 316 (1975), Pacifica Foundation -KPFA, 186 NLRB 825 (1970), South Bend Broadcasting Corp and Michiana Telecasting Corp., 116 NLRB 1166(1956) 24 Rural Fire Protection Company, 216 NLRB 584 (1975); Overbrook School for the Blind, supra unlike other public radio and television stations over which the Board has asserted jurisdiction.23 Under these circumstances, we find that the Employer has insufficient identity with or relationship to the exempt purposes of the University to support the conclusion that we should decline to assert jurisdic- tion.24 In sum, we find that the Employer is not a political subdivision of the State of Texas, nor subject to any substantial degree of state control in its operations, and is accordingly an employer within the meaning of the Act. In addition, we find no support in the record for the contention that the Employer is a joint employer with the University. Finally, we find no special relationship or intimate connection between the services provided by the Employer and the exempt functions of the University. Accordingly, as the Employer is engaged in commerce within the meaning of the Act, we find it would effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved herein claims to represent certain employees of the Employer.25 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties at the hearing, the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time camera opera- tors, crew chiefs, lighting technicians, technical directors, directors' assistants , assistant directors, boom operators, audio assistants, floor managers, floor assistants, production assistants, and on-the- job trainees within the production department employed by Employer at its Austin, Texas, facility, excluding all other employees, including but not limited to, lighting designers, engineers, writers, directors, producers, college work study personnel, actors, musicians, singers, dancers, clerical employees, employees in the costume, prop, make-up, and scene department, graphic artists, all managerial employees, professional 25 The Employer contends that Petitioner is not a labor organization and additionally that Petitioner is unwilling to represent all employee classifica- tions in the agreed-upon unit The record establishes that Petitioner has employees participating in its organization which was formed for the purpose of bargaining collectively with the Employer regarding wages, hours, and working conditions . We therefore find Petitioner to be a labor organization within the meaning of the Act. Additionally, we find that Petitioner's entry into a stipulation expanding the unit beyond that originally sought indicates Petitioner's willingness to represent alljob classification in the stipulated unit found appropriate herein, and therefore find the Employer's contention in this regard without ment 1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees , guards , watchmen , and supervisors, as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER JENKINS, dissenting: I would decline to assert jurisdiction over the Employer. Contrary to my colleagues, I would find that the University of Texas, admittedly a political subdivision of the State of Texas and not subject to the jurisdiction of the Board, has direct control and supervision over the Employer's operations. The factual situation here differs from the usual noncommercial educational television station over which the Board has consistently taken jurisdiction, precedent upon which my colleagues rely, and in my opinion not applicable in the instant case. The record shows that the Employer is the brain- child of the University and it would not have been established, nor would it continue to exist, except for its close functional relationship with the University. Before commencing service before 1961, the Employ- er entered into a written management contract with the University which provides that the University would manage and control the day-to-day operations of the television station. The president and station manager, Professor Schenkkan, is director for the communications center of the University and is chairman of the communications department, a department closely involved with the work of the station. Four of the station's top personnel were selected and trained by Professor Schenkkan and are concerned with the University's curriculum. The University provides a substantial amount toward the salaries of these personnel. The Employer is housed in the communications center located on the campus. A high portion of the Employer's broadcast day is set aside for instruction- al programs for school districts, the cost of which is reimbursed by the State of Texas. The University and the Employer jointly maintain a graduate program for credit which in many cases is part of a doctorate program. All of the closed circuit television used for classroom purposes and special video instructional programs used by the University are produced by the Employer in accordance with the specifications of the University. A not insubstantial part of the Employer's total budget comes from the State of Texas, and without such funds it is doubtful if the station could exist. Other operating funds are from public and govern- mental sources, a type of funding not too different from some departments within the University. Signif- icantly, the Employer's charter provides that upon dissolution or after a fixed period of time the assets of the Employer become the property of the University. From the above, I am convinced that meaningful collective bargaining could not take place without directly involving in major degree the University, a political division of the State of Texas. Accordingly, I would dismiss the petition. Copy with citationCopy as parenthetical citation