Delaware Broadcasting Co.

In the Matter of DELAWARE BROADCASTING COMPANY, EMPLOYER and AMERICAN FEDERATION OF RADIO ARTISTS, PHILADELPHIA LOCAL, A. F. OF L., PETITIONER Case No.4-RC-282.Decided April 4, 194.9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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-niember panel.* Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the repre- sentation of certain employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a unit consisting only of the our staff an- nouncers at Radio Station WILM. The Employer agrees to a unit of announcers but would include the employees discussed below : Francis X. Gallagher The Petitioner contends that this individual is a supervisor of the four staff announcers. The Employer maintains that he is not a supervisor. Gallagher is program director of the station. He makes •Houston, Reynolds , and Murdock The Employer requests oral argument . We believe the record and the briefs amply present the issues and positions of the parties , and we therefore deny the request. 82 N. L. R. B., No. 83. 727 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out the broadcast program for the station, subject to the approval of the station manager. He frequently confers with the station man- ager and the news editor on the operation of the station. He arranges the hours of work of the announcers. He auditions applicants for announcing positions and recommends whether or not they should be hired. For the most part his recommendations in this regard are followed. He holds meetings of the four staff announcers at which he comments and makes suggestions in regard to their announcing. He himself does about 3 hours of actual broadcasting a week. We think that he is a supervisor in that he responsibly directs the activi- ties of the announcing staff.2 We will therefore exclude him from the unit hereinafter found appropriate .3 William P. Frank The Petitioner makes the contention, which the Employer disputes, that this individual is a supervisor because of his relationship with the assistant news editor. Frank is news editor. He works in con- junction with the assistant news editor, whose work he directs. He does not have the power to hire or discharge the latter, and apparently does not have power to effectively recommend such action. He does not have authority to discipline him. He does give him routine direc- tions. We find that Frank is not a supervisor' within the meaning of the Act. The Petitioner also maintains in regard to Frank that he should be excluded from the unit because his work is essentially different from that of the announcers. His duties are to edit news, occasionally read news on the air, and to develop and edit special events programs. He also writes continuity and script. He broadcasts about 3 hours reg- ularly each week and spends some additional time in preparation for his air work. While his activities are not primarily announcing, he is in the program department with the announcers, his work is closely integrated with theirs and he has similar hours and working condi- tions. We will include him in the unit.4 Preston Butter This individual is the assistant news editor. We will include him in the unit for the same reasons that we included Frank. 2 Matter of Ohio Power Company, 80 N. L. R. B. 1334. 8 Matter of West Central Broadcasting Co., 77 N L. R. B 366 ; Matter of Roderick Broadcasting Co, 78 N. L R B 406 4 Matter of Roderick Broadcasting Co., supra; Matter of Star -Times Publishing Com- pany, 25 N. L. R. B. 492. DELAWARE BROADCASTING COMPANY 729 Majorie Price This individual is women's program director. Most of her time, however, is taken up with the writing of continuity for the station. She spends about 2 hours a week regularly on the air and in addition occasionally patricipates in commercial announcements. She is in the program department of the station. Her work is a necessary pre- liminary to the actual broadcasting done by the announcers, she works under similar conditions and has a community of interest with them. We will include Price in the unit.5 James King, Chauncey Eanes, Jr., and Jackson Lee These individuals are characterized by the Employer as salesmen- announcers and, it is contended, should be included in the unit. The Petitioner would exclude them, asserting that their announcing is slight and incidental to their main function as salesmen. At the time of the hearing, King was broadcasting 15 minutes a day on a tem- porary program, a special Christmas program. Previous to this he had not had any regular time on the air in nearly 2 years' employ at the station. Eanes has two 15-minute programs daily. One of these is transcribed and his part consists of 30 seconds opening the program and 30 seconds closing. Lee has less than 3 hours regularly on the air weekly. However, he is the sports announcer for the station and does play-by-play broadcasts of baseball and football. All the salesmen occasionally work on special events programs. The salesmen earn nearly twice as much as the full-time announcers. From 75 to 85 per- cent of their earnings is derived from their sales work. The major- ity of their time is spent outside the station selling and servicing their accounts. It is apparent from the above that King, Eanes, and Lee are essentially salesmen, not announcers. However they do have reg- ular announcing time assigned to them. We are reluctant to deprive them of representation during those periods. Therefore, we will deem them to be in the unit for the time they are announcing, standing by to announce, or preparing for announcing, and then only for the purpose of bargaining in relation to their announcing work .6 We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All staff announcers at Radio Station WILM, including the news editor, assistant news editor, women's program director, and salesmen- 5 Matter of Miami Valley Broadcasting Corp., operating Radio Station WHIO, 70 N. L. R. B. 1015 6 Matter of Carlisle & Jacquelin, 55 N. L. R. B. 678; Matter of Sterling Sugars, Inc., 65 N. L. R. B. 1118 ; Matter of Hunt Foods, 68 N. L. R. B. 800. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announcers,' but excluding clericals , technicians, the program director, and other supervisors as defined in the Act. 5. The determination of representatives : In situations where employees are within a unit part of the time and excluded part of the time, the question arises as to their eligibility to vote in selecting the bargaining representative. We have often resolved this question by holding that only those employees who spend 50 percent or more of their time doing work which qualifies them to be in the unit, may vote.8 We so hold here. Therefore, only those em- ployees who in the last 12 months , or for so much of that period as they have been in the employ of the Employer, have spent 50 percent or more of their time in announcing , preparing to announce , standing by to announce, or in doing related work in the program department such as editing news, writing continuity or preparing special pro- grams, shall be eligible to vote. By this standard , we find that King, Eanes, and Lee are not eligible to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election 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 em- ployees in the unit found appropriate in paragraph numbered 4, above, as limited by paragraph numbered 5, above, who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion of Election, 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 discharged for cause and have not been rehired or reinstated prior to the date of the election, 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 the American Federation of Radio Artists, Philadelphia Local, A. F. of L. 'Member Reynolds is of the opinion that it is a departure from Board practice to specifically include the salesmen-announcers in the unit since their primary employment is not that of an announcer . See Kohrs Packing Company, 54 N L. R. B. 642, 644; The Wallace Press, 56 N. L. R. B. 469, 470 , Courier-Post Company, 71 N L R. B 1188, 1190; Sterling Sugars, Inc., 65 N. L. R. B 1118, 1121 . He agrees , however, that insofar as their announcing work is concerned , they are subject to representation by the bargaining repre- sentative of the announcers 8 Matter of Hunt Foods, Inc., supra ; Matter of Maui Pineapple Company, 60 N. L. R. B. 401; Matter of Pepeekeo Sugar Company, 59 N. L R. B. 1532 ; Matter of Wadham's Divi- sion of Sooony-Vacuum Oil Company, 54 N. L . R. B. 1164.