Booth Broadcasting Co.

National Labor Relations Board - Board Decisions

Nov 28, 1961

134 N.L.R.B. 817 (N.L.R.B. 1961)

BOOTH BROADCASTING COMPANY 817
5. International Brotherhood of Electrical Workers, Local 712,
AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
6. United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 115, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
7. The Respondents have not engaged in unfair labor practices in
violation of Section 8(b) (4) (ii) (B) of the Act.
[The Board dismissed the complaint.]
MEMBER Ro1x EI s dissenting :
As I noted in my opinion in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Milk
Drivers and Dairy Employees Local 537 (Lohman Sales Company),
132 NLRB 901, and Electrical Workers Local Union No. 73 (North-'
western Construction of Washington, Inc.), 134 NLRB 498, the so-
called publicity proviso to Section 8(b) (4) is applicable only if the
primary employer, with whom the union has a dispute, produces a
product or products which are distributed by another employer. One
primary employer here, Industrial, is an electrical contractor. The
other, Gallo, is a refrigeration installation and maintenance contractor.
Neither produces anything. Each merely provides services, and cer-
tainly by no stretch of anyone's imagination can it be said that there
is distribution by another employer of the results of their labors. Ac-
cordingly, I would find the proviso inapplicable here, and would hold
that by handbilling Loccisano, the Respondent violated Section
8(b) (4) (ii) (B) of the Act.
Booth Broadcasting Company and Oral F . Osman a/k/a Bob
Fields, ' Petitioner
Booth Broadcasting Company and National Association of
Broadcast Employees and Technicians , AFL-CIO, Petitioner.
Cases Nos. 7-RD-363 and 7-RC-4875. November 28, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon petitions filed under Section 9 (c) of the National Labor Rela-
tions Act, a hearing was held before Thomas R. Wilks, hearing officer.
The.hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby .affirmed.
1 The Petitioner's name appears as amended at the hearing.
134 NLRB No. 80.
630849-62-vol. 134-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Members Rodgers, Leedom, and Fanning].
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 organizations involved claim to represent certain,
employees of - the Employer.'
3. Questions affecting commerce exist concerning the representation
of employees of the Employer within the meaning of Section 9(c) (1)
and Section 2(6) and (7) of the Act.
4. The Booth Broadcasting Company, a Michigan corporation, is
engaged in-the operation of radio stations located at Detroit, Flint,
$agillaw, .and Jackson, Michigan; at South Bend and Kokomo, In-
dia ia; and at Toledo, Ohio. Only Radio Stations WJLB-AM and
WIVIZK-FM at Detroit, Michigan, are involved herein.
In Case No. 7-RC-4875, the Petitioner, National Association of
Broadcast Employees and Technicians, AFL-CIO (hereinafter re-
ferred to as NABET), seeks an election in a unit described in the
petition as "all technical employees excluding sales, clerical, guards
and supervisors as defined in the Act." Although NABET had re-
quested in its petition a unit including all technical employees but
excluding on-the-air personnel, it stated at the hearing that it would
also accept a unit including on-the-air personnel if the Board so
determined.
The Employer contends that technicians and on-the-air personnel
should not be combined in the same unit. The American Federation
of Television and Radio Artists (hereinafter referred to as AFTRA),
Intervenor, which presently represents the Employer's announcers,
took the position that it would like to appear on the ballot jointly with
NABET if such a unit was determined to be appropriate by the Board.
Case No. 7-RD-363 involves a decertification petition filed by Bob
Fields (legal name : Oral Osman), presently a staff announcer at Radio
Station WJLB, to decertify AFTRA as the collective-bargaining
agent for a unit described as "staff announcers, excluding office cleri-
cal employees, guards, supervisors as defined in the Act and all
other employees." AFTRA has been the bargaining representative
for announcers since 1942, and the last contract between the Employer
and AFTRA expired on October 31, 1960. The Petitioner contends
that the recognized collective-bargaining unit represented by AFTRA,
and described in the last collective-bargaining agreement as "all an-
2 National Association of Broadcast Employees and Technicians , AFL-CIO, Intervened
in Case No 7-RD-363 on the basis of a showing of interest . American Federation of
Television and Radio Artists, AFL-CIO, intervened in both Cases Nos. 7-RD-3.63 and
7-RC-4875 on the basis of a contractual interest in the employees involved in Case No.
7-RD-363.
BOOTH BROADCASTING COMPANY 819
nouncers including staff and free lance," includes English-speaking
personalities but excludes foreign language special personalities. The
Employer contends that the duties and special relationship to the
station enjoyed' by both the English-speaking and foreign language
personalities make them independent contractors and, therefore, ex-
cluded from the unit as a matter of law 3 and Board policy. However,
the Employer states that it would not object to permitting the English-
speaking personalities to vote. AFTRA takes the position that origi-
nally the unit consisted of staff announcers and English-speaking per-
sonalities but excluded foreign language personalities; but that
subsequent negotiations 4 between the Union and the Employer resulted
in their inclusion in the unit. AFTRA maintains that it has repre-
sented all performers appearing before the microphone whether they
be classified as staff announcers, special personalities, or free-lance
announcers. AFTRA further maintains that certain individuals are
economic strikers and, therefore, eligible to vote in a decertification
election.
Case No. 7-RC-4875
Radio engineers and technicians: On October 31, 1960, the station
introduced an automated broadcast system. The system is such that
an entire day's broadcasting is almost entirely automatic and pre-
recorded. At present there are six full-time radio engineer-technicians
employed by the Employer, including the chief engineer, Elwood
Ryan. The parties are in agreement that Ryan is a supervisor as
defined in Section 2(11) of the Act, and therefore, we shall exclude
him from the unit. NABET contends that one of the five remaining
engineers, Paul Wolfcale, should be excluded as a supervisor within
the meaning of the Act., The record reveals that Wolfcale's function
was that of a technician engaged primarily in the installation and
maintenance of the automation machinery, that he now does work sub-
stantially like that of other engineers. He does not hire or fire em-
ployees, does not discipline other employees, and has no one working
under him. Furthermore, he is directly under the supervision of Ed-
ward Clark, the Employer's vice president, and director of the auto-
mation installation. There is no probative evidence in the record to
show that any responsible official of the Company has ever, at any time,
held Wolfcale out to be employed in a supervisory capacity .5 There-
3 A bargaining unit may include only individuals who are "employees " within the
meaning of Section 2 (3) of the Act.
4 In 1948 the language of the collective -bargaining agreement was altered by the dele-
tion of the term "but not including foreign language announcers " The same language
was carried forward for 12 years up to and including the contract which terminated
October 31, 1960. AFTRA contends that this indicates that they are now included in
the unit - -
s NABET relied primarily on testimony of a telephone conversation in which Wolfcale
allegedly stated that he was an automation engineering supervisor There was'no indica-
tion that this came from anyone representing the Company , however, and Wolfcale's own
assertion cannot serve to establish Wolfcale 's status as a supervisor.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, we find that Paul Wolfcale is not a supervisor within the mean-
ing of the Act and we shall include him in the unit.
On those occasions when the station is broadcasting from a remote
location, it may be necessary to engage additional technicians for these
special situations. As a source for such emergency help, the Em-
ployer maintains a list of technicians who are called in at irregular
intervals, sometimes not for 6 months at a time, to work at a single
remote broadcast. Only one such employee, Don Oswald, reports with
any regularity. He works 8 hours a day every Saturday for the
station as a technician, and has been so employed for over 3 months.
The record reveals that he performs the same type of work, at least on
Saturdays, as do the full-time engineers and technicians. All of these
part-time employees, including Oswald, maintain full-time positions
elsewhere. The Employer takes the position that Oswald is a regular
part-time employee and, therefore, an eligible voter; but that the re-
mainder of these employees are irregular part-time or casual em-
ployees. NABET contents that the Board should exclude all of these
employees from the unit in that they do not have a substantial interest
with the other technical employees at Station WJLB. The record is
clear that Oswald is regularly employed part-time on a 1-day per week
schedule, and has a reasonable expectancy of continued employment on
this basis. Therefore, in accordance with the Board's usual policy,6
we shall include Don Oswald in the unit. We find that the remaining
part-time technicians are casual employees, and exclude them from the
unit 7
Announcers: Prior to October 31, 1960, the staff announcers were
called upon to perform the tasks of operating tape recording machines
and turntables, cueing records, switching microphones for special
personality performances, and telemetering. The telemetering duties
involved recording the reading of meters and gauges. After the initia-
tion of the automation system, the functions of operating turntables
and recording machines and switching microphones were transferred
to the technicians. The telemetering function remained with the an-
nouncers until recently, when that was also transferred to the tech-
nicians. However, because of the incomplete application of the auto-
mation machinery, announcers may be still called upon in the future to
perform certain switching operations involved in remote broadcasts.
Normally, announcers are excluded from bargaining units of radio
technicians, even though they operate certain equipment as incidental
to their announcing functions.' In the instant case, the staff an-
nouncers are hired on the basis of their voice quality, previous radio
experience, educational background, and general adaptability to the
Cornhusker Televi8ion Corporation, 117 NLRB 1065 , 1066-1067.
Rollo Transit Corporation, et at., 110 NLRB 1623, footnote 8
8 Radio Station KHQ and KHQ-TV, 111 NLRB 874; Florida Broadcasting Co.
( WBMR-AM, WBMR-FM and WBMR-TV), 93 NLRB 1568.
BOOTH BROADCASTING COMPANY 821
requirements of the position . They are separately supervised by the
program director . The technical work performed by the announcers
does not require technical knowledge or training , as does that of the
engineer-technicians, and the technical duties they perform are only
incidental to their principal function of announcing , for which they
are specially qualified . None of the staff announcers holds a tech-
nician 's license from the Federal Communications Commission nor
are they at any time subject to the supervision of the chief engineer
who is responsible for the maintenance of the radio equipment. The
record clearly establishes that the principal job of the staff announcers
is announcing. Under these circumstances , and in accordance with
the previous Board decisions ; we shall not include the announcers,
or any other "on -the-air" personnel , in the same unit with the engineer-
technicians.
Therefore , we find appropriate a unit of all regular technical em-
ployees, excluding sales, clerical , and on-the-air personnel , guards,
and supervisors as defined in the Act.
Case No. 7-RD-363
The parties disagree as to which of the four classes of persons who
appear on the air at WJLB-AM and WMZK-FM are in the existing
unit, or should vote in a decertification election.
(1) Staff announcers: There appears to be no disagreement between
the parties as to the inclusion of these employees in the recognized
bargaining unit. Their employment conditions have been covered by
agreements with AFTRA since 1942. At present there are three full-
-time staff announcers at the stations. Two of them are considered by
the Employer as full-time permanent replacements for two economic
strikers.10 The third was at first employed part time, and later became
a full-time announcer, when another part-time staff announcer re-
signed. At present there are no part-time staff announcers employed
at the stations. We include the staff announcers in the unit.
(2) Free-lance announcers: Free-lance announcers differ from staff
announcers in that they are not regularly employed, are free to work
for other stations, and are paid on a per-job or per-program basis
rather than a weekly or hourly basis. At present it does not appear
that there are any free-lance announcers actually employed at the
stations. However, as they have been part of the historically recog-
nized unit, we shall include this employee classification in the unit
description for the purpose of the decertification election.
(3) Foreign language personalities: There are presently 16 of these
individuals employed by the Employer at the stations, and the Em-
a KPOJ, Inc., et al, 129 NLRB 727; Pennsylvania Broadcasting Company, 100 NLRB
254; Radio Station KHMO, 94 NLRB 1416.
10 Stambaugh and Carnett.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer has a separate contract with each of them. Their programs are
all broadcast in a foreign language. They are paid on the basis of a
percentage of the advertising time sold by them on their programs.
All of the foreign language personalities have the right to employ
others for their individual programs; and they also are responsible for
their own expenses, i.e., the production of these programs, the employ-
ment of guests, or the sale of advertising. They are prohibited by their
contracts from having programs on competitor stations.
The record indicates that AFTRA has never made a claim to repre-
sent these individuals in past negotiations with the Employer," and
they have historically been excluded from the existing bargaining
unit. The Board has held that in a decertification election the existing
or recognized bargaining unit alone is the appropriate unit.12 There-
fore, we shall exclude the foreign language personalities from the unit.
(4) English-speaking personalities: The Petitioner contends these
persons are staff announcers, and within the unit, because they have
regular programs, and their on-the-air duties are somewhat similar to
that of the regular staff announcers. They have separate contracts
with the Employer similar to those of the foreign language person-
alities. These contracts were not negotiated by AFTRA, and, in fact,
AFTRA contracts have never covered the terms under which these
individuals appear on the air. They sell advertising on their pro-
grams, and are paid on a percentage of the advertising sold rather
than on a weekly or hourly basis. Although the two classifications
may possess some common interests, it appears from the record that the
English-speaking personalities are not staff announcers, and we shall
not include them in the unit as such.
As the English-speaking personalities have not historically been in-
cluded in the bargaining unit, to include them now in the unit in a
decertification election would not be consistent with the Board's
established policy of not enlarging the recognized or certified unit.13
Therefore, we shall exclude them from the unit.i4
Alleged economic strikers: The change of Employer's operation to
an automatic system necessitated a reduction in the number of staff
announcers. AFTRA was notified in advance of the Employer's plans
to reduce its staff to either three full-time or six part-time announcers.
On October 18, 1960, the Union was given a last of those full-time an-
nouncers whom the Employer intended to terminate. On the same
It No claim to represent foreign language personalities was made during the last negotia-
tion between AFTRA and Employer in October 1960, prior to the Union going on strike
12 The Root Dry Goods Co , Inc., 126 NLRB 953, footnote 6 ; Seaporcel Metals Inc., 115
NLRB 960, 961; see also Great Falls Employers Council, Inc ., 114 NLRB 370; and
Standard Oil Company of California ( Richmond Refinery, Richmond, California), 113
NLRB 475
is See footnote 12, supra.
in Since we are excluding the foreign-language personalities and English -speaking per-
sonalities from the unit, we need not pass upon the Employer' s contention that they are
independent contractors.
BOOTH BROADCASTING COMPANY 823
date, three full-time announcers 15 were given letters of termination,
effective October 31, 1960. Approximately a week later, three part-
time announcers 18 received letters of termination, which also were
effective as of October 31, 1960. The number of staff announcers to
be retained by the Employer after October 31, 1960, became the prin-
cipal issue between the parties during negotiations. As a result of the
failure of the parties to reach an agreement, the Union instituted a
strike on November 1, 1960, which was still in progress as of the
date of the hearing.
The Petitioner contends that the six announcers who received ter-
mination letters are economic strikers and, therefore, eligible to vote.
Employer contends that they have been permanently laid off and are,
therefore, ineligible.to vote. It appears from the record that these
six staff announcers in question were permanently discharged prior to
the commencement of the AFTRA strike; that their jobs have been
eliminated for economic reasons because of the new automation sys-
tem; and that there is no chance of their reemployment. In addition,
the three full-time staff announcers demanded and received termina-
tion pay under the provisions of the expired contract. As the six per-
sons in question were discharged prior to the commencement of the
strike, we find that are discharged employees, and are not entitled to
vote in the decertification-election. 4
The record also reveals that there are two striking staff announcers 18
who have not been discharged by the Employer. All parties are in
agreement that they are economic strikers. Therefore, we find that
these individuals are eligible to vote as economic strikers, subject to
challenge in accordance with the rules established by the Board.l0
We find that the following units are appropriate for purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act :
In Case No. 7-RC-4875: All regular technical employees excluding
sales, clerical, and on-the-air personnel, guards, and supervisors as
defined in the Act.
In Case No. 7-RD-363: All announcers, including staff and free-
lance announcers, but excluding foreign language and English-
speaking personalities, office clerical employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Elections 20 omitted from publication.]
15 Mike Smigulek, Richard Hobbs , and Anthony Caminita ; a fourth announcer, Pavey,
was transferred out of the unit and is not involved with this case.
le Boyles , Yates, and Rengers.
14 Spartan Broadcasting Company (WWTV), 122 NLRB 1191.
is Stambaugh and Carnett
ie See W. Wilton Wood, Inc ., 127 NLRB 1675; and Bright Foods, Inc ., 126 NLRB 553.
2O As it appears that AFTRA and NABET intervened in Cases Nos. 7-RC-4875 and
7-RD-363, respectively , solely for the purpose of appearing on the ballot if the Board
found only an overall unit appropriate , and as we are directing separate elections, we
shall not place AFTRA on the ballot in Case No. 7-RC-4875 or NABET on the ballot in
Case No. 7-RD-363.