National Broadcasting Co., Inc.

In the Matter of NATIONAL BROADCASTING COMPANY , INC. and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS In the Matter of BLUE NETWORK COMPANY , INC. and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS Cases Nos. 9-R--4733 and 3-R-4733 respectively.Decided November 94,1944 Mr. Joseph A. McDonald, of New York City, for NBC. Mr. Walter L. Emerson, of New York City, for Blue. Messrs. Martin F. O'Donoghue and Thomas X. Dunn, of Washing- ton, D. C., for the N. A. B. E. T. Messrs. Joseph A. Padway and Henry A. Friedman, of Washington, D. C., for the A. F. M. Mr. David Katz, of Chicago, Ill., for Local 10. Mr. Ben Grodsky, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE Upon separate petitions duly filed by National Association of Broad- cast Engineers and Technicians, herein called the N. A. B. E. T., alleging that questions affecting commerce had arisen concerning the representation of employees of National Broadcasting Company, Inc., New York City, herein called NBC, and Blue Network Company, Inc., New York City, herein called Blue, both herein collectively called the Companies, the National Labor Relations Board consolidated the cases and provided for an appropriate hearing upon due notice before James C. Paradise, Trial Examiner. Said hearing was held at New York city, on September 29, 1944. NBC, Blue, the N. A. B. E. T., the American Federation of Musicians, AFL, herein called the A. F. M. and Local 10 of the American Federation of Musicians, herein called Local 10, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's 59 N. L. R . B., No. 97. 478 NATIONAL BROADCASTING COMPANY, INC. 479 rulings made at the hearing are free from prejudicial error and are hereby affirmed. , Pursuant to notice, a hearing was held before the Board at Washington, D. C., on November 9, 1944, for the purpose of oral argument. All parties appeared and the N. A. B. E. T., the A. F. M., and Local 10 participated in the oral argument. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES National Broadcasting Company, Inc., is a Delaware corporation having its principal place of business in New York City. It is engaged principally in the business of network and local broadcasting, involv- ing the sale of broadcast time, the production of radio programs, the transmission of such programs over certain stations managed and owned by it and to various broadcasting stations throughout the United States and Canada affiliated with it for broadcasting by them. The Company owns and operates studios and radio facilities constitut- ing the following broadcasting stations: WEAF, New York City; WMAQ, Chicago, Illinois; WRC, Washington, D. C.; WTAM, Cleve- land, Ohio; KOA, Denver, Colorado; and KGO, San Francisco, California. It also maintains studios and offices in Los Angeles, Cali- fornia, and has various short wave, television, and experimental broad- casting stations located throughout the United States. It transmits its programs in interstate commerce by broadcasting them from the stations it owns and operates and by feeding its network programs over wire lines to the broadcasting stations affiliated with it, which number approximately 140 and are located in various States, Canada, Hawaii, and Cuba. Blue Network Company, Inc., is a Delaware corporation having its principal place of business in New York City. It is engaged in the business of network and local broadcasting, the sale of time facilities and radio programs, and the production of radio programs. It owns and operates the studios and facilities constituting the following broadcasting stations : WJZ, New York City ; WENR, Chicago, Illi- nois; KGO, San Francisco, California; and KECA, Los Angeles, Cal- ifornia. It transmits programs over the Blue Network, which con- sists of the 4 above-mentioned stations, and 191 independently owned stations, 2 of which are located in Canada. The programs broadcast include both sustaining and commercial programs of news, entertain- ment and educational character, and advertising. NBC and Blue admit, and we find, that they are engaged in com- merce within the meaning of the National Labor Relations Act. 618683-45-vol 59-32 480 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED National Association of Broadcast Engineers and Technicians is a labor organization admitting to membership employees of the 'Companies. - American Federation of Musicians, affiliated with the American Federation of Labor, and its Local 10 are labor organizations admit- 'ting to membership employees of the,Companies. III. THE QUESTIONS CONCERNING REPRESENTATION On July 26, 1944, the N. A. B. E. T. sent the Companies 30-day notices of termination of its contracts with them and requested imme- .diate negotiations with a view to reaching new agreements. On August 7, 1944, representatives of the Companies met with representa- tives of the N. A. B. E. T. but could not agree upon the composition of the appropriate unit, the Companies taking the position that they would not recognize the N. A. B. E. T. as the representative of the employees in the units it alleges to be appropriate in the instant pro- ceeding until it was certified by the Board. - A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the N. A. B. E. T. represents a substantial number .of employees in each unit hereinafter found appropriate.' We find that questions affecting commerce have arisen concerning the representation of employees of the Companies within the meaning .of Section 9 (c) and-Section 2 (6) and (7) of•the-Act. IV. THE APPROPRIATE UNITS The N. A. B. E. T. seeks two units, one for NBC and one for Blue, ,consisting of all technical employees, wherever located, of the Engi- neering Department of each Company engaged in the operation of technical facilities used in transmitting, converting and/or conducting audio, video, and/or radio frequencies for use in,broadcast, rebroad- '.cast, audition, rehearsal, recording and/or "on the air" playback, excluding chief engineer, operating engineer and assistant, engineer- ing managers, engineers in charge, operations supervisors, television operations supervisors, station engineers at transmitters of more than 5 kw., television station engineers, engineers in charge and their first i The Field Examiner reported that the N . A B. E T submitted 276 authorization cards, .of which 265 bore the names of persons listed on NBC's pay roll of May 22 , 1944, which contained the names of 358 employees in the alleged appropriate unit of NBC 's employees; and that the cards were dated, 2 in April 1944 , 259 in May 1944 ; and 4 in June 1944. He further reported that the N A B E T. submitted 84 authorization cards, of which 82 bore the names of persons listed , on Blue's pay roll of 'May 15, 1944 , which contained the names of 96 employees in the alleged appropriate unit of Blue 's employees ; and that -all the cards were dated May 1944 . The A F. M . and Local 10 claim an interest in this proceeding by virtue of the latter's closed-shop contracts with the Companies. The Field Examiner reported that NBC and Blue each employed 6 pattern turners in Chicago. NATIONAL BROADCASTING COMPANY, INC. 481 assistants in the following engineering groups : radio facilities, audio facilities, development, and technical services; construction superin- tendents; engineer in charge of television and any other similar or administrative positions. The A. F. M. and Local 10 agree that these units are appropriate, except insofar as they encompass the functions of "on the air" play- back, more commonly known as platter turning or operating a turn- table. They contend that, contrary to the practice in certain studios, this work should be done by employees delegated to perform this op- eration solely, and that such employees should be included in units of musicians. They further contend that the units including such turntable operators should be limited to each broadcasting station of each Company and should not be system-wide. The Companies take a neutral position with respect to the composition and scope of the appropriate units. , Operating a turntable consists of placing a phonograph record on one of the two turntables used in "on the air" playback, adjusting it for either vertical or lateral cut records and fixing its speed at 331/3 or 78 revolutions -per minute'-by means of the instructions appearing on the face of the record, opening the fader control, and, after the record has been played, removing the record from the turntable. There are a few minor refinements which do not add materially to a description of the task. All necessary volume control is provided by the studio engineer at the mixing panel. The work of a turntable operator is performed at the Chicago stations of the Companies 2 by members of Local 10 3 and at all other stations of the Companies by members of the N. A. B. E. T. In Chicago the employees performing this operation are musicians located in the studio proper who perform no other work. Ili all other stations of the Companies the two turn- tables are placed in the studio engineer's booth at the right and left of the mixing panel and he operates them as well as the mixing panel itself. Thus, outside Chicago, this work is not performed by separate employees, but by the studio engineer as an integral part of his job. Turntable operators have always;been included in units of musicians in the Chicago stations of the Companies 4, since 1927 or 1928. The earliest written agreement introduced in evidence embracing Station WMAQ was between the Chicago Broadcasters' Association, Inc., of 2 NBC operates station WMAQ and Blue operates station WENR in Chicago. ' While Local 10 claims that only its members operate turntables when musical phono- graph records are played in broadcasting stations in Chicago, the evidence discloses that some musical phonograph records are played weekly from the transmitter stations in con- formity with Federal Communication Commission regulations ; and that the turntables' are there handled by members of the N. A. B. E. T., who are the only employees licensed and permitted by Federal Communication Commission regulations to work in transmitter stations. 4 The 'studios were independently owned in 1927 and 1928 and were acquired by NBC in 1932 . Blue has owned Station WENR since Blue 's creation as a separate entity in 1942. C 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which.Station WMAQ was a member, and Local 10, and was dated December 31, 1931. While NBC owned no broadcasting station in Chicago at that time, it signed a contract with Local 10 on March 17, 1931, covering whatever musicians it might employ in Chicago. Both the December 31,1931, agreement and the latest agreements with NBC and Blue,' entered into on March 6, 1944, and running until January 31, 1947, specifically include turntable operators under the phrase "mechanical musical device operators." Outside Chicago, the work of turntable operators was performed by various employees of the broadcasting stations now owned by the Companies until 1939 or 1940. The earliest contract submitted in evi- dence covering technical employees on a system-wide basis in which the term "on the air" playback was mentioned was the agreement dated November 27, 1940, between NBC and Association of Technical Em- ployees of the National Broadcasting Company, Inc., herein called the A. T. E., the N. A. B. E. T.'s predecessor. While this contract covered a system-wide unit, in a letter dated December 10, 1940, sent to NBC, the A. T. E. specifically exempted "on the air" playback work in Chicago. Technical employees have operated the turntables in ques- tion outside Chicago since that date. On August 22,1942, the N. A. B. E. T. wrote to NBC stating that it wished to withdraw its grant of the exception in the case of Chicago. NBC replied to this request on August 27, 1942, stating that it could not then accede to this request because there existed a contract between it and Local 10, including, inter alia, turntable operators in Chicago, which ran until January 31, 1944. Although Blue was in existence at this time and it appears that the N. A. B. ,E. T. had the same agreement with it as with NBC, the evidence fails to disclose that. a similar demand was made upon it by the N. A. B. E. T. until January 23, 1944. Notwithstanding these demands by the N. A. B. E. T., the Companies, as noted above, on March, 6, 1944, entered into new contracts with Local 10, covering, among others, turntable operators in Chicago, to continue in effect until January 31, 1947. On July 26, 1944, the N. A. B. E. T. sent the Companies 30-day notices of termination of its contracts and since August 26, 1944, its members have continued to work on a day-to-day basis under the provisions of the terminated contracts. As above in- dicated, the present status of turntable work in the Companies' studios is unchanged from what it has been for a number of years: In Chicago the work is performed by members of Local 10 who are included in musicians' units, a situation which has obtained since 1927 or 1928; and in all stations outside Chicago it is performed by employees who are members of the N. A. B. E. T. and who are part of units of technical employees, a situation which has existed since at least 1940. " NBC and Blue entered into identical agreements with Local 10 on March 6, 1944. J NATIONAL BROADCASTING COMPANY, INC. 483 The N. A. B. E. T. contends that the two system-wide units of technical employees should include "on the air" playback work in Chicago as well as elsewhere because the turntable is technical equip- ment and should be operated by a technical employee. The A. F. M. contends that this work pertains to the musical craft because the records played contain music and a musical background is helpful, and consequently the work should be performed by employees in musicians' units everywhere, as it is in Chicago. There was consid- erable testimony offered to establish, on the one hand, that the opera- tion of turntables requires a knowledge of music and, on the other hand, that it requires technical skill and training. The evidence reveals that the quality of turntable work is equally good in Chicago, where it is performed by musicians, as it is in the other stations of the Companies, where it is performed by studio engineers. It also appears from the record that, in radio stations operated by other broadcasting companies, this work is performed by other employees such as announcers, without any noticeable de- terioration of quality. Upon the entire record, we are satisfied and find that neither a technical nor a musical skill is essential for this operation. In the.absence of other compelling circumstances, we , are of the opinion that the collective bargaining history is determinative of the issue in this proceeding. The status of turntable operating work has been crystallized by long-standing custom in the Companies. On the one hand, Local 10 has had agreements in Chicago from the very infancy of the radio broadcasting industry which have covered turn- table operators and, in the development of broadcasting techniques, the Companies have adjusted their operations in Chicago by placing their turntables in the broadcasting studios where they can be op- erated most conveniently by employees in musicians' units. On the other hand, studio engineers, employees in technical units, members of the N. A. B. E. T. and its predecessor, have performed turntable work outside Chicago for at least 4 years. The location of the turn- tables in the engineer's booth was the inevitable result of this situa- tion. We conclude that the turntable operators outside Chicago should be included in units of technical employees, while those in Chicago should be included in units of musicians. We find that all technical employees, wherever located, of the Engi- neering Department of NBC engaged in the operation of technical facilities used in transmitting, converting and/or conducting audio, video, and/or radio frequencies for use in broadcast, rebroadcast, audi- tion, rehearsal, recording and/or "on the air" playback, excepting "on the air" playback in Chicago, Illinois, excluding chief engineer, operating engineer and assistant, engineering managers, engineers in charge, operations supervisors, television operations supervisors, sta- 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion engineers at transmitters of more than 5 kw., television station engineers, engineers in charge and their first assistants in the follow- ing engineering groups : radio facilities, audio facilities, development, and technical services; construction superintendents; engineer in charge of television; and all other supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We further find that all technical employees, wherever located, of the Engineering Department of Blue engaged in the operation of technical facilities used in transmitting, converting and/or conduct- ing audio, video, and/or radio frequencies for use in broadcast, re- broadcast, audition, rehearsal, recording and/or "on the air" playback, excepting "on the air", playback in Chicago, Illinois, but excluding chief engineer, operating engineer aind assistant, engineering mana- gers, engineers in charge, operations supervisors, television operations supervisors, station engineers at transmitters of more than. 5 kw., television station engineers, engineers in charge and their first as- sistants in the following 'engineering groups : radio facilities, audio facilities, development, and technical services; construction superin- tendents; engineer in charge of television; and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recom- mend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES As noted above, the N. A. B. E. T. represents a clear majority of the employees within each of the units found appropriate in Section IV, snpra.6 At the hearing, the Companies, the A. F. M., and Local 10 conceded the N. A. B. 'E. T.'s majority status in each unit we have found to be appropriate' and consented to the certification of the N. A. B. E. T. in such units without further proceedings. In the cir- cumstances, we shall not direct elections in accordance with our usual procedure, but shall certify the N. A. B. E. T. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to i he power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended. 0 See footnote 1, supra. NATIONAL BROADCASTING COMPANY, INC. 485, IT IS HEREBY CERTIFIED that National Association of Broadcast En- gineers and Technicians has been designated and selected by a majority of all technical employees, wherever located, of the Engineering De- partment of National Broadcasting Company, Inc., New York City, engaged in the operation of technical facilities used in transmitting, converting and/or conducting audio, video, and/or radio frequencies for use in broadcast, rebroadcast, audition, rehearsal and/or "on the air" playback, excepting "on the air" playback in Chicago, Illinois, but excluding chief engineer, operating engineer and assistant, en- gineering managers, engineers in charge, operations supervisors, tele- vision operations supervisors, station engineers at transmitters of more than 5 kw., television station engineers, station engineers in charge and their first assistants in the following engineering groups : radio facilities, audio facilities, development, and technical services; construction superintendents; engineer in charge of television; and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, as their representatives for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other conditions of employment; and IT IS HEREBY FURTHER CERTIFIED that National Association of Broad- cast Engineers and Technicians has been designated and selected by a majority of all technical employees, wherever located, of the Engineer- ing Department of Blue Network Company, Inc., New York City, en- gaged in the operation of technical facilities used in transmitting, con- verting and/or conducting audio, video, and/or radio frequencies for use in broadcast, rebroadcast, audition, rehearsal and/or "on the air" playback, excepting "on the air" playback in Chicago, Illinois, but excluding chief engineer, operating engineer and assistant, engineer- ing managers, engineers in charge, operations supervisors, television operations supervisors, station engineers at transmitters of over 5 kw., television station engineers, engineers in charge and their first as- sistants in the following engineering groups : radio facilities, audio facilities, development, and technical services; construction super- intendents; engineer in charge of television; and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action, as their representatives for the purposes of col- lective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.