Hampton Roads Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jul 15, 1952

100 N.L.R.B. 238 (N.L.R.B. 1952)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be further recommended that the allegations of the complaint that
the Respondent Company refused sickness pay to Adrian Hampton for the month
of February 1951, in violation of Section 8 (a) (3) of the Act, be dismissed.
Since it has been found that the Respondent Trustees have not engaged in
unfair labor practices , the undersigned will recommend that the allegations of
the complaint with respect to them, be dismissed.
On the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CoNcLusIoNs OF LAW
1. Beet Sugar Refinery Employees Federal Labor Union No. 24792 , affiliated
with American Federation of Labor, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interrogating an employee regarding his union sympathies , by threaten-
ing an employee with reprisal if he persisted in his unionization efforts, and by
otherwise interfering with , restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in, and is engaged in, unfair labor practices , within the meaning of Section 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and ( 7) of the Act.
4. By laying off Charles A. Ransom, Harold W . Gayman , Merlin Durrant, S. R.
Jensen , J. B. Dursteler, Daniel Johnson , and Frank Van Fleet , the Respondent
Company did not violate the Act.
5. By not giving Adrian Hampton sickness pay for the month of February
1951 , the Respondent Company did not violate the Act.
6. Respondent Trustees did not violate the Act as alleged in the complaint.
[Recommendations omitted from publication in this volume.]
HAMPTON ROADS BROADCASTING CORPORATION (WGH) and AMERICAN
FEDERATION OF RADIO ARTISTS, AFL, PETITIONER . Case No. 5-RC-
969. July 15,1952
Supplemental Decision and Second Direction of Election
On April 4, 1952, the Board issued a Decision and Direction of
Election 1 in the above-entitled case in which a majority of the Board
rejected the Petitioner's request for a unit confined to all employees
appearing before the microphone and found that the sole appropriate
unit was one encompassing all employees engaged in announcing and
programing duties. Member Styles dissented in a separate opinion
on the ground that the unit confined to the employees appearing before
the microphone was also appropriate. Member Peterson did not
participate in that decision.
1 98 NLRB,1090.
100 NLRB No. 1.
HAMPTON ROADS BROADCASTING CORPORATION (WGH) 239
Thereafter, the Petitioner filed a motion for reconsideration of the
Board's Decision insofar as it held that the exclusion of the four traffic
and continuity employees, none of whom regularly or frequently ap-
peared before the microphone, would render inappropriate a unit of
announcing employees. It also requested an opportunity to argue
orally before the Board. On May 22, 1952, oral argument was had
before the full Board at Washington, D. C., and all parties participated
in the argument.
Upon reconsideration, the Board now finds that a unit confined to
all the employees who regularly or frequently appear before the micro-
phone is appropriate for collective bargaining purposes. As pointed
out in Member Styles' original dissenting opinion, in appearing before
the microphone these employees
... perform a kind of work, requiring a kind of talent, ex-
perience, and background which is distinguishable from that of
the other program employees, and which gives rise to interests in
the terms and conditions of employment which are sufficiently
different from those of other employees to warrant separate rep-
resentation for collective bargaining. Voice, diction, personality,
the ability to persuade through the spoken word-these are the
tests by which announcers are judged, and these are qualifications "
wholly unrelated to the jobs performed by . . . others. These
special and highly individualistic qualifications necessarily serve
to distinguish [those who appear before the microphone] from
other employees .. .
These are- the considerations which underlie the Board' s findings
that when an employee regularly appears before the microphone, it is
that factor, alone, and not his other duties, which gives rise to the
community of interest which warrants his inclusion in the announcers'
unit 2 And, as conceded in the original majority opinion, such units
have been found appropriate by the Board "in numerous cases in the
past." We believe that the ,same considerations are present and call
for the same finding in the case of employees who frequently appear
before the microphone. For all the foregoing reasons, we are per-
suaded that employees who regularly or frequently appear before the
microphone constitute a homogeneous, readily identifiable cohesive
group appropriate as a unit for collective bargaining.
2 See, e. g., Radio Station KHMO , 97 NLRB 1026 ( John Golden, included , despite the
contrary agreement of the parties , because he "announces a 15-minute program five days
weekly") ; WWEZ Radio Inc., 91 NLRB 1518, 1519 ("Although this employee spends the
greater part of his time in other special duties for the Employer , as he does regularly
spend a portion of his working time as announcer , we shall include him in the unit") ;
Miami Valley Broadcasting Corp ., 70 NLRB 1015, 1019 (with respect to a typist and
commercial continuity writer who appeared on a 15 -minute program 5 days a week, the
Board held : "We find that she too performs the functions of a professional announcer and
shall include her in the unit."
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Our establishment of such a unit does not run counter to those which
the Board has found appropriate in the Delaware and Westchester
cases,s. cited in the original opinion. We do not hold that a unit of all
programing department employees would in all circumstances be
inappropriate. Either may be appropriate depending on the specific,
facts of each case. While the technical description of the units in the
foregoing cases differs substantially from the formulation adopted
here, it should be observed that in each of those cases all employees
included in the unit did in fact regularly appear before the micro-
phone and none therefore would be excluded from the unit under our.
present decision.'
We shall therefore amend the original unit to exclude the continuity'
and traffic employees Ryan, Brown, Hilbert, Tolbert, and Greve,
as none of them regularly or frequently appears before the micro-
phone. In all other respects, we reaffirm the original decision.
Accordingly, we find that all employees who regularly or frequently
appear before the microphone at the Employer's Radio Station WGH,
Newport News and N orfolk, Virginia, including commentators, staff
and special program announcers, sports and news reporters or an-
alysts, but excluding the continuity and traffic employees (Ryan,
Brown, Hilbert, Tolbert, and Greve), engineers, salesmen, janitors, the
bookkeeper, the choir director, the commercial manager, the chief an-
nouncer, the program director, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Second Direction of Election omitted from publication in
this volume.]
CHAIRMAN HERZOG and MEMBER MIIRDOCH, dissenting :
The reversal of the original published decision in this case neces-
sarily, we believe, gives controlling weight to the desires of the pe-
titioning union in determining the issue of the appropriate collective
bargaining unit. It does this without due regard to the mandate in
the amended Act against giving controlling effect to the union's ex-
tent of organization; or to the Board's established standards for de-
lineating appropriate units; or even to the need for providing a rea-
sonable and workable basis for bargaining in the broadcasting indus-
tries. -
The present majority now holds that "a unit confined to 'all the-
employees who regularly or frequently appear before the microphone
8 Delaware Broadcasting Company, 82 NLRB 727 ; Westchester Broadcasting Corpora-
tion, 93 NLRB 1346.
4 We do of course reject , as indeed the original opinion has in effect done , the broad
dictum in the Westchester case that we would always find appropriate only a unit includ-
ing all programing department employees.
HAMPTON ROADS BROADCASTING CORPORATION (WGH) 241
is appropriate for collective bargaining purposes." (Emphasis
added:) But in the original decision herein, neither the dissent nor
the majority considered or even discussed the element of "regularity
or frequency" in performing the broadcasting function as a test of
the appropriateness of the unit. Such a basis for establishing a bar-
gaining unit was suggested for the first time in this case in the oral
argument heard by the Board after the Petitioner requested recon-
sideration of the original decision. There the Petitioner asserted a
unit, now found appropriate by the Board majority, as representing
its present national jurisdictional policy .5 Perhaps, indeed, if all the
parties herein had been prepared to litigate at the hearing the question
of the unit as defined in the present majority opinion, the Employer
could and would have established the element of "regularity or fre-
quency" in the broadcasting functions of some or all of the disputed
individuals 6.
Considering the issue on its merits, we make these observations :
1. It appears that our colleagues have found a unique collective
bargaining unit. In it are included all employees regardless of
whether they might primarily function as announcers , typists, sales-
men, engineers, or continuity writers, upon satisfying the sole requi-
site that they "regularly or frequently appear before the microphone."
And what do our colleagues deem sufficient to satisfy the requirement
of "regularity or frequency ?" Ten minutes a week ! 7 Yet the con-
tinuity and traffic employees here in dispute, whose duties and inter-
ests are inextricably bound with those of the other programming
employees in the unit, but who only appear sporadically before
the microphone, are to be excluded from the unit and to remain
unrepresented.
2. Turning to all the employees who would be embraced in the unit
by reason of their "regular or frequent" appearances before the micro-
phone, the Petitioner informs the Board that its policy is to represent
such employees for 100 percent of their working time. If this is
5 No such issue, of course, was involved in Emil Denemark, Inc., 98 NLRB 1089, cited
by the Petitioner in the oral argument as support for its asserted jurisdictional policy.
There, the test of "frequency or regularity " was used , as it customarily is by the Board,
merely in finding that certain employees were ineligible to vote. We submit that only
in respect to eligibility questions should such a test be used here.
9 We are not aware that the Petitioner , or any other union, has in the past ever re-
quested such a unit in decided cases. Indeed, as was shown in the original majority de-
cision ,' the Petitioner has in other Board cases requested that units include nonper-
formers. Nor is there any assurance that the Petitioner will not in the future depart
from its asserted jurisdictional policy and seek a still differently composed unit, after
realizing the full effect of the present determination , or the exigencies of other cases.
7In Westchester Broadcasting Corporation, 93 NLRB 1346 , the record shows that
Catherine H. Ocskasy "performs before the microphone approximately ten minutes per
week for which she spends no time in preparation ." It is clear that in that case Ocskasy
was included in the unit because of her interests as a programing employee ("in filing
musical library index cards and typing out musical programs ",) and not because of-the
insignificant amount of time she spent on the air.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sanctioned, it would create serious confusion in employee representa-
tion in the broadcasting industries. Thus, once other unions in the
field seek to represent the same employees with regard to the major por-
tion of their working time, in functions such as engineering, writing,
selling, playing a musical instrument, or performing clerical duties, the
employer would be faced with a multitude of conflicting claims. More-
over, if employees' inclusion in the bargaining unit is made to turn
upon such a test of "regularity or frequency" of the broadcasting func-
tion, the,composition of the unit in small stations, such as this one,
would be subject to frequent fluctuation and could, indeed, be consider-
ably controlled by the employer.
In other cases; the Board's rule is, of course, that employees who per-
form duties within the coverage of the bargaining unit for only a frac-
tion of their working time are included in the unit only for that
portion of their time.8 If the customary rule were applied here, the
employees in the unit who do appear before the microphone 10 minutes
a week would be represented by the certified union for only 10 minutes
a week; and for the remaining 39 hours and 50 minutes of a 40-hour
week, they would either remain unrepresented, or would be represented
for part or all of that time by one or more other unions. Under either
alternative, the practical problems which would confront the employer
and other unions in the field, would be well-nigh insoluble.
3. The original dissenting opinion in this case, now reversed, which
is adopted and relied upon by the present majority, would have held
appropriate the unit then sought by the Petitioner, consisting of an-
nouncers and excluding certain other programing employees in dispute.
The original Board majority there found that the distinct interests of
the announcers, as revealed in the record in this case, had not been
demonstrated to be sufficient to permit the representation of the an-
nouncers apart from the other programing employees. They held that
no justification for such restricted representation had been established
on the basis of the customary Board criteria, such as craft or depart-
mental factors. Particularly in view of the clear evidence of the inter-
changeability of functions and the multiplicity of duties among each
of the employees in this small, compact, and highly integrated radio
station, the original decision concluded that the sole feasible and ap-
propriate grouping for collective bargaining was in a unit which in-
cluded all programing employees. To have granted the Petitioner's
requested unit, excluding the programing employees in dispute, the
Board originally held, would have accorded controlling effect to the
extent to which the Petitioner had organized the employer's employees,
contrary to the express provisions of Section 9 (c) (5) of the amended
Act.
I See The Ocala Star Banner, 97 NLRB 384.
HAMPTON ROADS BROADCASTING CORPORATION (WGH) 243
The altered unit held appropriate by the present majority seems
to us to provide an even more flagrant .example of predicating a unit
finding upon "extent of organization." For with the newly injected
element of "regularity or frequency" of the broadcasting function,
there is much less basis than before for a finding of distinct common
interests to support the majority's unit grouping, which contains
less than all of the programing employees. Thus, in future broad-
casting cases such a unit could contain, in addition to announcers,
typists, receptionists, salesmen, engineers , and continuity and traffic
employees who appear before the microphone "regularly or fre-
quently," within the broad and flexible meaning of that term. And all
of these employees would be represented for all their time.
Our colleagues suggest that a showing of distinct interests on the
part of these employees encompassed in their unit finding is provided
by : "voice, diction, personality and ability to persuade through the
spoken word." But such attributes have never before been held to
identify a profession, or a craft, or to support a Board policy for
separate representation. Indeed, as has been shown, many broadcast-
ing employees whose primary functions do not require these attributes
at all can now qualify for inclusion in the unit, if they merely "appear
before the microphone" for as little as 10 minutes a week. Further-
more, as the record clearly reveals in this case, true classifications and
departments do not exist; employees are hired expressly to perform,
and they do perform, a multitude of functions; and most, but not all,
employees do make occasional appearances before the microphone.
We believe, therefore, that there is little substance to the assertion
that the employees who "appear before the microphone regularly or
frequently" have distinct interests apart from the other employees
who do not so qualify.
4. Even assuming, however, the existence of distinct interests, or
even a craft,9 with respect to those employees who "appear before the
microphone," we would in the circumstances of this case still find
appropriate only a unit of all programing employees. For we are
impressed by the very small proportion of time spent before the micro-
phone by the station employees, and by the division of functions and
9 Of course , our colleagues have not found a "craft" here . In its letter requesting
reconsideration of the original decision herein, the Petitioner argued that the decision,
if upheld , would alter the entire nature of its organization and that "the Board will be
dictating that an established craft union must become an industrial union." Me note that
no such request or argument was made by the Petitioner in the Westchester case, in which
even broader language was used than the Board was willing to adopt in the original
Hampton Roads decision.
In the Westchester case the unit found appropriate , which included certain programing
employees together with the announcers , was substantially as requested by the Petitioner
itself We note further that the Petitioner concedes that it has a substantial number of
members who are not performers , and that it will even admit clericals to membership.
(See transcripts of WTAR Radio Corporation, 5-RC-972, and of the oral argument on
May 22, 1952.)
227260-53-vol 100-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the high degree of integration demonstrated here-among all the em-
ployees engaged in programing operations.-
5. The present unit finding in the case is wholly inconsistent with
the existing precedents, which were relied upon in the original de-
cisions 11 Our colleagues now attempt to reconcile these cases with the
observation that the disputed employees included in the units there
did in fact appear "regularly or frequently" before the microphones.
But such a unit as is now found here was not in issue in those cases.
The disputed employees there were included with the other employees
in the unit because of their community of interests as programing
employees, and not because they, like many of the miscellaneous station
employees, spent some small portion of their time on the air. The
Westchester case is entirely clear on the point :
Developing and scheduling programs, writing continuity, and
soliciting appearances on station programs are all activities which
are closely related to the actual broadcast, and are as necessary
to it as the station announcements and other activities actually
performed before the microphone 2 As even the staff announcers
spend substantial portions of their time in activities preparatory
to broadcasting, we are satisfied that a unit consisting of an-
nouncers and others engaged in program preparation constitutes
a homogeneous and cohesive group, without regard to the portion
of their time spent in actual announcing, or whether some may in
fact do no announcing at all. (Emphasis added.)
2 Miami Valley Broadcasting Corporation, 70 NLRB 1015; West Central Broadcast-
ing Company, 77 NLRB 866; Delaware Broadcasting Company, 82 NLRB 727; and
Ridson, Inc., 91 NLRB No. 59 . WWDZ Radio, Inc., 91 NLRB 1518, and Badger
Broadcasting Co., 92 NLRB No. 161 , to the extent that they are inconsistent herewith,
are hereby overruled.
We would not alter the unit originally found appropriate in this
case. Sympathy with the Petitioner's objectives as set forth at oral
argument is not enough to induce us to join in a departure from
precedent which 'is so sharp and so fraught with serious practical
consequences for the broadcasting industries.
to Cf. National Tube Company, 96 NLRB 1199.
n E. g., Westchester Broadcasting Company, 93 NLRB 1346, supra; Delaware Broad-
casting Company, 82 NLRB 727, and cases cited therein.
NORFOLK BROADCASTING CORPORATION (WNOR) and AMERICAN FED-
ERATION OF RADIO ARTISTS, AFL, PETITIONER. Case No. 5-RC-970.
July 15,1952
Supplemental Decision and Second Direction of Election
On April 4, 1952, the Board issued a Decision and Direction of
Election in the above-entitled case in which a majority of the Board
100 NLRB No. 2.