Sunshine Broadcasting Co.Download PDFNational Labor Relations Board - Board DecisionsJun 7, 194983 N.L.R.B. 1244 (N.L.R.B. 1949) Copy Citation In the Matter of SUNSHINE BROADCASTING COMPANY; HOWARD W. DAVIS D/B/A THE WALMAC COMPANY, KCOR, INC.; AND ExPREss PUBLISHING COMPANY, EMPLOYERS and .INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL 60, AFL, PETITIONER Case Nos. 39-RC-34,39-RC--37,39-RC-38, and 39-RC-39.-Decided June 7,1949 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed, a hearing in the above-consoli- dated cases 1 was held before James P. Wolf, hearing officer. The hearing officer's rulings at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Employer in Case No. 39-RC-34 moved to sever its case, and for a continuance, because it had executed a contract of sale and filed an application with the Fed- eral Communications Commission for transfer of ownership of Sta- tion KTSA. This motion was referred to the Board. For reasons hereinafter stated in paragraph V, below, the motion is hereby denied. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board makes the following : FINDINGS OF FACT2 . I. THE BUSINESS OF THE EMPLOYERS The Sunshine Broadcasting Company, a Texas corporation, owns and operates a radio station in San Antonio, Texas, under the call letters KTSA, on a power output of 5,000 watts during the day and 1,000 watts during the night. Approximately 50 percent of the sta- a A petition in Case No. 39-RC-35 , involving Charles W . Balthrope d/b/a Radio Station KITE , originally included in the consolidation , was withdrawn before the hearing with the approval of the Regional Director. The Petitioner and Express Publishing Com- pany , the Employer in Case No. 39-RC-39, have executed a consent election agreement. Accordingly , the petition in Case No . 39-RC-39 is hereby severed and remanded to the Regional Director for the Sixteenth Region for further action in accordance with the aforesaid agreement. 2 The findings herein made are based on facts stipulated between the parties at the hearing. 83 N. L. R. B., No. 172. 1244 SUNSHINE BROADCASTING COMPANY 1245 :tion's broadcast time is devoted to national network programs, 15 percent to local live programs, and 35 percent to recorded and tran- scribed programs. It is affiliated with the Columbia Broadcasting System and the Lone Star Broadcasting System. The station utilizes the leased wire services of the Associated Press and the United Press and facilities of the Southern Bell Telephone Company on local hook- ups, remote broadcasts, and chain programs. During the preceding year the gross revenue of this station was in excess of $250,000, of which 47 percent was derived from sales to advertising agencies and customers located outside the State of Texas. Purchases of recordings and transcriptions from sources outside the State of Texas approxi- mate $308 per month." Howard W. Davis trading as The Walmac Company is an individual enterprise operating two radio broadcasting stations in San Antonio, Texas, Station KMAC, a standard AM station operating on a power of 250 watts, and Station KISS, an FM station operating on a power of 3,000 watts. The same personnel operate the equipment of both stations which utilize the same office, studios, and building. There are separate transmitters for each station and separate telephone lines from the studios to each transmitter. Both stations are affiliated with the Mutual Broadcasting System and approximately 40 percent of their broadcast time, which is unlimited, is devoted to network or national hook-tip programs. The Employer utilizes the Associated Press wire service and the facilities of the Southwestern Bell Tele- phone Company in its local and network broadcasting circuits. Dur- ing the year 1948 the Employer's gross revenue was approximately $200,000, of which 171/2 percent accrued from sales of advertising and/or services to advertising agencies and other customers located outside the State of Texas. During the same period the Employer purchased recordings and transcriptions in the amount of approxi- mately $3,600 from outside the State. KCOR, Inc., a Texas corporation, operates a commercial broadcast- ing station in San Antonio, Texas, under the call letters KCOR on a power output of 5,000 watts during the day and 1,000 watts at night. This station is independent and not affiliated with any national net- 'work or hook-up. However, it utilizes the leased wire services of the Associated Press and the United Press and the facilities of the South- western Bell Telephone Company in transmitting programs from its , The Employer admits that its activities affect commerce but contends that the Board I. without jurisdiction in the matter because there are only six employees involved and they do not constitute a "substantial number of employees" as required by Section 9 (c) (1) (A) of the amended Act. We find this contention to be without merit . We do not con- strue the language of the section of the Act referred to as imposing any limitation on the certification of a union as the collective bargaining representative of employees in an appropriate unit merely because of the small number of employees in the unit . See Matter ,of Tennessee Valley Broadcasting Company, 73 N. L. R. B. 1509 ; Matter of Royal Tallow 'd Soap Co ., Inc., 78 N . L. R. B. 834. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD studio to its transmitter station. During the year 1948, the Employer's -gross revenue was approximately $205,991 of which $20,000 accrued from sales of advertising or radio time to firms located outside the State of Texas. Each of the above stations operates under licenses issued by the Federal Communications Commission. We find that each of the Employers herein is engaged in commerce within the meaning of the Act-' II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employers. III. THE QUESTION CONCERNING REPRESENTATION The Employers refuse to recognize the Petitioner as the exclusive bargaining representative of their employees until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce exists concerning the representation of employees of the-Employers within the meaning of Section 9 (c) (1) and Section 2 (6) -and (7) of the Act. IV. THE APPROPRIATE UNITS A. Cases Nos. 39-RC-34 and 39-RC-37 In Case No. 39-RC-34 (KTSA) and in Case No. 39-RC-37 (KMAC-KISS) the Petitioner seeks units of all radio technicians 5 employed at each of the Employers' transmitters and studios located in San Antonio, Texas, with certain exclusions as to which the parties -are in agreement. Both Employers agree with the general composition of the units as requested by the Petitioner. The Employer in Case -No. 39-RC-34, however, objects to the designation of these employees as "technicians," contending that they should be termed "operators" As there is no dispute as to the employees involved, and as the Em- ployer in question designates these employees as "operators" in its job classifications, we shall use the term "operators" in the unit herein- after found appropriate in the case of this particular Employer. - A Matter of Mike Benton , d/b/a General Broadcasting Co., 81 N . L. R. B. 422 ; Matter of West Central Broadcasting Company, 77 N. L . R. B. 366; Matter of Western Gateway Broadcasting Corporation , 77 N. L . R. B. 49 ; Matter of Station WBRE, 57 N . L. R. B. 1611. Matter of Booth Radio Stations, Inc., 79 N . L. R. B. 964 . The last cited case is partic- ularly relevant in connection with our finding as it relates to KCOR , Inc., which , as noted above, operates an independent station. " The Petitioner stated at the hearing that it seeks to represent only those technicians who have been licensed by the FCC or who are preparing themselves to become licensed. However , for the reasons which appear below in connection with Case No. 39-RC-38, we shall include in the unit hereinafter found appropriate all radio technicians ( or operators) without regard to whether they have , or are in the process of obtaining, licenses. SUNSHINE BROADCASTING COMPANY 1247 The Employer in Cdse No. 39-RC-34 further contends that three employees, who since June 1948 have been engaged in the construction and installation of a new transmitter and technical equipment at a new site, should be excluded from the unit. Two of these employees have first-class radio telephone operator licenses, and the record indi- cates that there has been an interchange between the two licensed em- ployees and employees on regular operations. The Employer contends that the new construction is a temporary operation and that upon completion of the work the three employees will not be retained unless there is a need for them at that time. However, the Employer is unable to determine when the construction job will be completed. In view of the fact that these employees perform similar duties and have been interchanged with the other operators, we shall include the Employer's radio operators working on new construction in the unit hereinafter found appropriate. B. Case No. 39-RC-38 In this case the Petitioner seeks a unit composed only of radio technicians (with certain agreed exclusions) employed at the Em- ployer's transmitters. The Employer contends that the appropriate unit should also include the radio technicians in the Employer's studio control room. The transmitter technicians are responsible for the proper operation and maintenance of the transmitter equipment and oversee, in general, the programs transmitted to them from the studios. They are experienced radio engineers licensed by the Federal Com- munications Commission as radio telephone operators. On the other hand, in this case, unlike the situation that prevails in Cases Nos. 39-RC-34 and 39-RC-37, the control room technicians are not licensed and are not as skilled as the transmitter technicians. They are responsible, however, for the proper operation of technical equip- ment in the control room which transmits programs from the studios to telephone lines connecting technical equipment in the control room with the transmitter. They perform no other type of work, and to= gether with the transmitter technicians they constitute the technical staff of the station, in a single separate department, under the common supervision of the chief engineer. Under certain circumstances, as, for example, where the control room technicians spend a significant portion of their time in such activities as broadcasting, we have found appropriate a unit confined to transmitter technicians a However, under circumstances such as are present in the instant cases, we have e Matter of Colorado Radvo Corporation, 55 N. L R. B. 423; Matter of Inter-City Adver- tising Co. Inc., 55 N. L . R. B. 1415; Matter of Augusta Broadcasting Company, 58 N. L. R. B. 1493. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held T that despite the differences in the degree of skills that exist, control room and transmitter technicians together constitute a homo- geneous departmental group of technical employees appropriate for the purposes of collective bargaining. Accordingly, we shall include the control room technicians in the unit hereinafter found appropriate. We find that the following groups of employees at each of the Em- ployer's radio stations in San Antonio, Texas, excluding all actors, singers, announcers, combination announcer-control room employees, newscasters, sports commentators, office and clerical employees, watchmen, guards, chief engineer, and all other supervisors as defined by the Act, constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: 1. All radio operators employed at the transmitter and studios of Station KTSA, including operators engaged on new construction. 2. All radio technicians employed at the transmitters and studios of Station KMAC-KISS. 3. All radio technicians employed at the transmitters and studios of Station KCOR 8 V. THE DETERMINATION OF REPRESENTATIVES The Employer in Case No. 39-RC-34 (KTSA) contends that no election involving its employees should be held at this time, because prior to the filing of its petition herein it executed a contract for the sale of its stock, in which it agreed not to execute any contracts which would extend beyond the date on which the stock is actually transferred. This contract is now pending before the Federal Com- ,!Ilunications Commission. The Employer argues that should the Petitioner be designated as the bargaining representative of its em- ployees, it might be called upon to execute a collective bargaining agreement with the Petitioner which would be a breach of its contract of sale. It therefore urges that the Board withhold any further action until a final determination has been made with respect to the impend- ing sale. We do not agree. Pending final action by the Commission the Employer continues to operate the station in question, and we perceive nothing in the Employer's contract with the potential pur- chaser which is inconsistent with the Employer's obligation to bargain collectively with a duly designated representative of its employees, or makes it impossible for the Employer to comply ^ with that obliga- tion. In these circumstances the denial to the employees in question 4 Matter of Wodaam Corporation (Radio Station WOV), 83 N. L. R. B. 335; Matter of General Broadcasting Co., 81 N. L. R. B. 422; Matter of Associated Electronic Enter- prl8e8, Inc., 80 N. L. R. B. 295; Matter of Radio Station WSB, 70 N. L. R. B. 1168. This station employs a part-time transmitter technician. His duties and conditions of employment are similar to those of the other technicians and he works a regularly assigned tour of duty each Saturday and Sunday. In these circumstances, we shall permit this employee to vote in this election. SUNSHINE BROADCASTING COMPANY 1249 of the opportunity to select a, bargaining representative until some indefinite future date at which a sale might be consummated is clearly unwarranted. DIRECTION OF ELECTIONS 9 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Sunshine Broadcasting Com- pany (KTSA) ; Howard W. Davs d/b/a The Walmac Company (KMAC-KISS) ; and Radio Station KCOR, Inc., San Antonio, Texas, elections by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard,'and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, as amended, among the employees in the units found appro- priate in paragraph numbered IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction' of Elections, including employees who did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the elections, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by International Brotherhood of Electrical Workers, Local 60, AFL. If the Petitioner does not wish to participate in any of the elections herein directed, it may withdraw any of its petitions filed in this proceeding upon notice to that effect given to the Regional Director in writing within ten (10 ) days from the date of the Direction of Elections herein . See Matter of Eisner Grocery Company, 72 N. L . R. B. 721. Copy with citationCopy as parenthetical citation