The Fort Industry Co.

In the Matter of THE FORT INDUSTRY COMPANY, EMPLOYER and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 1218, AFL, PETITIONER In the Matter of THE FORT INDUSTRY COMPANY, EMPLOYER and NA- TIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, PETITIONER Cases Nos. 7-RC-489 and 7-RC-491.Decided February 7,1950 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed, a hearing in these consolidated cases' was held in Detroit, Michigan, on May 20, 24, and 25, 1949, be- fore Cecil Pearl, hearing examiner. The hearing examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On September 20, 1949, pursuant to proper notice, the Board heard oral argument in this matter. 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 [Members Houston, Reynolds, and Murdock]. Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioners, herein called the IBEW and NABET, respec- tively, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL, herein called the Intervenor,2 are labor organizations claiming to represent employees of the Employer. ' Cases Nos. 7-RC-482 and 7-RC-491 were consolidated by order of the Regional Director on April 12, 1949. 2 Detroit Motion Picture Projectionists, Local 199, an affiliate of the Intervenor, was not permitted to intervene at the hearing as it had not complied with the filing requirements of the Act. 88 NLRB No. 110. 527 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: In its original petition, the IBEW requested a unit of all television, technicians employed in the operation, maintenance, and repair of the Employer's television station, WJBK-TV, in Detroit, Michigan. At the hearing, the IBEW filed an amended petition in which it requested, as an alternative unit contention, a unit consisting of all employees of the Employer in Detroit, Michigan, engaged in the operation and maintenance of all technical equipment, including transmitters, con- trol boards, cameras, the playing and/or cutting and/or recording of all types of transcriptions.3 NABET seeks a unit of all radio engineers and technicians who operate these facilities of the engineer- ing department of the Employer's radio and television station in Detroit, Michigan, used in transmitting, converting, and/or conduct- ing audio, FM, video, and./or radio frequencies for use in broadcast, rebroadcast, audition, rehearsal, recording, and/or "on the air" play- back. The Intervenor seeks to represent all full-time and part-time projectionists employed by the Employer in its Detroit, Michigan, television operation. The IBEW and N ABET stipulated at the hear- ing to exclude projectionists from the units they claimed to be appro- priate. The Employer substantially agrees with the unit contention of the NABET, except that it would include the projectionists. The parties further disagreed as to whether one employee was a supervisor within the meaning of the Act. The Employer is an Ohio corporation with its principal office in Detroit, Michigan. It owns and operates 7 AM, 6 FM, and 3 TV stations, located in Michigan, Ohio, West Virginia, Georgia, and Florida. Only the 3 Detroit stations, WJBK AM, WJBK-FM, and WJBK-TV, are involved in this proceeding. The Employer acquired WJBK-AM and WJBK-FM by purchase in 1947, and shortly there- after received a license to operate WJBK-TV. The Employer ex- tensively reorganized the operation of WJBK-AM and WJBK-FM, and, with the institution of its television programs on October 24, 1945, it consolidated all its studio operations at a new location in Detroit shortly after January 1, 1949. The A0\1 and FM programs are identical and there is no separate FM staff. All operations of the Employer are now thoroughly integrated in separate departments; the AM, FM, and TV technical and engineering staffsare under the super- 3 The Employer filed a motion at the hearing to dismiss or limit the IBEW' s amended petition . In view of our consideration in this decision of the alternative unit contention of the IBEW, we find it unnecessary to rule upon the Employer 's motion. THE FORT INDUSTRY COMPANY 529 vision of the chief engineer, and the staff announcers and disc jockey announcers are under the supervision of the program manager. The Employer employs a total of 50 persons in the operation of the Detroit stations. There are 18 technical employees, 12 in TV and 6 in AM, and 12 announcers. Executive, administrative, and clerical personnel make up the balance. The alternative unit contended for by the IBEW at the hearing would include all announcers in an over-all unit of engineering and technical personnel. The Employer and NABET strongly urge the inappropriateness of including the announcing staff in such a unit. WJBK-AM is a 250-watt station, and WJBK-FM has an interim power allowance of 1,000 watts. These relatively small stations are not affiliated with any of the national networks, and their chief source of income is from so-called "disc jockey programs." The disc jockeys play transcribed recordings, and make commercial announcements with a running, extemporaneous commentary between the musical presentations. They have broad discretion in the conduct of their programs, and their pay is commensurate with their talents. All announcers receive a base salary,' have relatively the same working conditions, and receive "talent fees." 5 It is perfectly clear from the record that the announcers do no engineering or technical work. As we have decided before,", the task of changing records and regulating volume is purely incidental to an- nouncing and requires no special skill. The announcers are employed as "voices," and their value lies entirely in their ability to make their programs popular. They are separately supervised, and, as indicated above, their basis of compensation is completely different from the engineers. The announcers have practically no interests in common with the engineering and technical employees of the Employer. We find, therefore, that the announcers should not be included in the same unit with the engineering and technical employees engaged in the operation and maintenance of the Employer's three Detroit stations.' 4 The announcers' base salary range is somewhat higher than that for engineers. a These consist of a portion of the advertising revenue. The more popular announcers are naturally in greater demand, and receive more income from this source. Actually, the only difference between staff announcers and disc jockeys is that the latter have more programs involving the payment of "talent fees." 6 See National Broadcasting Corporation, Inc., et al., 59 NLRB 478; Treadle-Campbell Broadcasting Corporation, 86 NLRB 1240. R There was no request in this proceeding for a separate unit finding for announcers, nor did any of the labor organizations present any evidence of representation among this group of employees. We shall not, therefore, direct a separate election for announcers. As we are excluding the announcers from the unit found appropriate herein, we do not consider the Employer's further contention that the announcers are professional employees and should be excluded from the unit for that reason. .530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The basic issue in this case is whether, as the IBEW contends, a separate unit for the technical employees of WJBK-TV is appropriate, or whether, as the Employer and the NABET contend, the technical personnel of all three stations constitute an appropriate unit. The first thing we note from the record herein is that television has not developed as a separate and distinct commercial entrprise, but has been considered an expansion of the radio broadcasting industry. This fact is especially emphasized in small operations, such as the one in this case, because television in its present stage is not finan- cially profitable. The general policy of broadcasters has been, there- fore, to consolidate and integrate their television operations as much as possible with existing AM-FM operations. As far as engineers and technicians are concerned, the record demonstrates that it requires relatively little training to adapt an AM radio engineer into a televi- sion engineer. The sound equipment in both television and ordinary broadcasting is practically identical, and it takes but little training for an AM engineer to learn how to operate and maintain the cameras .and other equipment necessary for visual reproduction in television s When WJBK-TV began operations, the Employer was forced to hire new television engineering personnel. This was contrary to the prac- tice it adopted at its other two television stations in Atlanta and 'Toledo where its AM engineers formed the nucleus of the TV staffs. The Employer 'was unable to do this in Detroit because the AM operation was so small. Although there has as yet been no interchange of AM and TV engineers in Detroit, the Employer contemplates making such changes as occasion requires. This policy is in line with -the Employer's desire for economical operation, for then all engineers would become familiar with all the technical aspects of AM and TV production. As indicated above, the TV engineers are presently qualified to do any of the AM engineering jobs, and the AM engineers will be able, with little training, to take the place of the TV engineers. There is complete integration of all the engineering and technical ,employees in one department under the supervision of the chief engineer. There is no history of collective bargaining at the Detroit stations here involved. However, NABET bargains for a single unit of all technical and engineering employees at the Employer's AM, FM, and TV stations in Atlanta, and the IBEWV represents an identical multi- :station unit at the Employer's Toledo stations. There are 2 other television stations in Detroit, and they have collective bargaining 'We note that an engineering license from the Federal Communications Commission is required by any engineer operating a transmitter , and that the license is the same for AD1, FM, or TV, THE FORT INDUSTRY COMPANY 531 contracts, one with each of the Petitioners herein, covering their AM, FM, and TV engineers in a single unit. The national policy and practice of both the IBEW and NABET has been to include TV engineers in the same unit with radio engineers. The IBEW repre- sentative at the hearing testified that there are separate units for television engineers at only 2 out of approximately 15 television stations represented by the IBEW.9 All of the contracts negotiated by NABET, some 20 or more, including contracts with the National Broadcasting Company and the American Broadcasting Company, include AM, FM, and TV engineers and technicians in single bar- gaining units. Under these circumstances, especially in view of the bargaining history, nationally, locally, and at other stations of the Employer, and in view of the similarity of skills and working conditions and the departmental integration of the employees here involved, and on the entire record, we find that the all-inclusive engineering unit consist- ing of the AM, FM, and TV engineers and technicians at the Em- ployer's Detroit station is the . appropriate unit for collective bargaining purposes.'° There remains for consideration, in connection with the composi- tion of the appropriate unit, the question of whether the full-time and part-time projectionists should be included in the unit. Although the projector in television has a different function than the projector in the motion picture theatre, the parties agree that the duties of the projectionist are almost identical in both cases. There is. direct viewing in the movies where the film merely has to be projected onto a screen. The projector in television is but a part of the "camera chain." The film is first projected into a tube of the television camera, and from there on the operations necessary for televising are the same as if "live talent" had been used. While the Employer does not dispute the alleged fact that the projectionist in the motion pic- ture theatre is a skilled craftsman," and may there be entitled to separate representation it contends that the technical qualifications of, and the type of work done by, the projectionist in television are about the same as that of the other technical employees. The Em- ployer also argues that all television engineers and technicians are 9 One of these stations had no AM or FM operation , and at the other station a separate TV unit was set up to avoid the higher AM and FM wage scale. 11 See Columbia Broadcasting System, Inc ., 68 NLRB 274 ; Atlanta Journal Company, etc., 70 NLRB 1168. 11 In this connection we note, contrary to the assumption in the dissenting opinion, that we have never had occasion to determine whether or not motion picture theatre projectionists are craftsmen . It does not follow from their separate representation in the theatre industry that projectionists are necessarily craftsmen. Such representation is entirely consistent with the view that they are a technical group of employees among such unskilled employees as ushers and cashiers. SS2191--51-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD capable of operating the projector, and that in fact job assignments at WJBK-TV were rotated until January 1949, when the Intervenor persuaded 12 the Employer to hire two of its members as full-time and part-time projectionists. The Employer insists, therefore, that the projectionists not be excluded from the unit. The practice thus far in the television broadcasting industry generally has been to in- clude projectionists in the same unit with the other technical person- nel.13 In Detroit, however, the projectionists at the two other television stations are excluded from the over-all technical units, and are being bargained for separately by the Intervenor. The projectionists in this case exercise relatively the same skills as the other technical employees in the unit, are under the same super- vision, and have essentially the same working conditions. The work done by the projectionists can be performed by the other TV engineers, and as indicated above, the Employer has practiced rotation of job assignments in TV operation. In television, unlike the motion pic- ture theatre, the projectionist is but one of a group of technically trained employees working as a cohesive team toward a common goal. In view of these facts, and the fact that thus far projectionists have generally been included in an over-all engineering unit in the tele- vision broadcasting industry, we shall, despite the agreement of the Petitioners to the contrary, include the projectionists in the unit 14 The IBEW would exclude Donald Hein from the unit as a super- visor; the Employer and the' NABET would include him. Hein has the title of AM supervisor and is classified as a studio engineer and maintenance man. Although he spends 95 percent of his time doing ordinary engineering work, the chief engineer testified that Hein was his assistant and that he devoted about 5 percent of his time to super- vising the work of the AM transmitter engineers. Hein is regularly stationed at the studio, while the five engineers he allegedly super- vises work at the AM transmitter which is at a different location. The duties of the AM engineers are well defined, and there is little occasion for Hein to direct them. Hein has no authority to hire or discharge. Although there is some doubt in the record whether he can effectively recommend such action, his recommendation to discharge an employee was once followed. The chief engineer, an admitted supervisor, testi- fied that Hein would take his place if he were ill or on vacation, and 12 The Employer alleges it was influenced In hiring the two members of the Intervenor because at that time none of its employees were organized and objections to the use of nonunion employees had been raised by union personnel working at the location of certain athletic events which the Employer was televising. is This practice has been followed at the Employer 's television stations in Atlanta and Toledo. 14 Cf. KMTR Radio Corporation (KLAC-TV), 85 NLRB 99. THE FORT INDUSTRY COMPANY 533 would have all his authority on such occasions. Hein receives $100 a month more than the other AM engineers. As almost all of Hein's time is spent on engineering work not different in type from that of the other AM engineers, as the supervisory authority he normally exercises is of a routine character under the immediate direction of the chief engineer, and as his occasional replacement of the chief engineer is of too sporadic a nature to justify his exclusion from the unit as a supervisor,15 we find that Hein is not a supervisor within the meaning of the Act. We find that all engineers and technicians in the engineering de- partment of the Employer's radio and television stations WJBK-AM, WJBK-FM, and WJBK-TV at Detroit, Michigan, including full- time and part-time projectionists and regular part-time employees, but excluding office and clerical employees, announcers, and super- visors 16 as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 17 As part of the investigation to ascertain representatives for the purposes 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 super- vision 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, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll 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 rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Brotherhood of Electrical Workers, Local Union 1218, AFL, or by National Association of Broadcast Engineers and Tech- nicians, or by International Alliance of Theatrical Stage Employees 15 Celanese Corporation of America, 81 NLRB 1041. 10 Although some question was raised at the hearing concerning the supervisory status of Raymond Mallon and Kenneth Johnson , all parties stipulated , and we agree, that these two employees are not supervisors within the meaning of the Act and should be included in the unit. 17 Any participant in the election directed herein may , upon its prompt request to, and approval thereof by , the Regional Director , have its name removed from the ballot. '534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Moving Picture Machine Operators of the United States and Canada, AFL, or by none. MEMBER HOUSTON, dissenting in part : Unlike my colleagues, I would not include the projectionists in the same unit with the engineers and technicians. I am persuaded that the projectionists in this case, who appear to be typical of those in the television broadcasting industry generally, have demonstrated their distinct craft status and should therefore constitute a separate unit. Television broadcasting uses as entertainment media either live talent, such as announcers, actors, and the like, or films, which are supplied by motion picture or slide-type, projectors. In the case of "live" broadcasts, the performer appears before a mobile television camera, which picks up and electronically converts his image. This image is then conducted through various electronic devices to the transmitter for broadcast to the television audience. In film broad- casts, the projector focuses on a fixed television camera and the pro- jected image is similarly picked up, and electronically converted, con- ducted, and transmitted to the viewers.18 The projectionists in question work exclusively on these motion pic- ture and slide-type projectors which thus furnish the initial image when film, rather than live talent, is to be telecast. They are primarily responsible for the focusing and other detailed operations of the projectors, for inspecting the condition of the projectors, and for per-. forming certain 'necessary repair and maintenance work thereon. They also inspect, clean, repair, and prepare all film for projection and complete the processing of all film for reshipment. The equipment handled by the projectionists in the television proc- ess is admittedly not unlike that used in motion picture theaters,19 where the craft status of projectionists has long been recognized.20 Also like their counterparts in motion picture theaters, the Employer's present projectionists are journeymen who were required by the Inter- vener, through which they were hired by the Employer, to serve a 11 In film broadcasts , the sound may be supplied either by the sound track on the film itself, or, if the film is silent , by such personnel as the announcers. The sound accompaniments in both live and film broadcasts are coordinated and adjusted at central panels and are thereafter transmitted in generally the same manner as ordinary FM broadcasts. 19 At the hearing, counsel for the Employer candidly stated : "Now admittedly the projec- tion equipment [ in television ] is not unlike or dissimilar with that used in the motion picture house." 10 While the Board has not had occasion to pass upon the status of projectionists in motion picture theaters , this fact obviously does not derogate from the craft character of those employees . The general recognition of their craft status was epitomized by the Employer's counsel who conceded , during oral argument, that : ". . there could be no question that [the motion picture theater projectionist ] is a craftsman , separate and apart from any other function in the motion picture theatre." THE FORT INDUSTRY COMPANY 535 3-year apprenticeship and successfully to complete a comprehensive examination before attaining their journeyman standings.21 In contrast to the projectionists, the Employer's television engineers and technicians are concerned not with the projectors and films, but mainly with the electronic equipment which receives, converts; and transmits either the live or film images. They are expected, in general, to have extensive training in electronics and other aspects of broad- casting. Their duties, which involve the maintenance and operation of such elements as the television cameras, master control, panel, and transmitters, call for the exercise of highly specialized- skills in the radio and television fields. These skills, however, are clearly diverse from those employed by the projectionists. In this connection, Rich- ard E. Jones, vice president of the Employer and general manager of the stations in issue, admitted at the hearing that the work of the projectionists and that of the engineers and technicians are basically, "two different fields," and indicated that the projectionist "is as skilled in his field as the man operating the studio control console [is] in his." 22 And, contrary to the implication of the majority, there has been no rotation of jobs between the projectionists and the engineers and technicians since shortly after the Employer commenced its full- scale television activities.23 The majority nevertheless disregards the diversity of skills and the distinct craft characteristics and status of the projectionists and finds that these employees can be represented only with the engineers and technicians principally because : (1) In the productipn of film broad- casts, the projectionists operate as an integral part of the engineering "team"; and (2) projectionists have been bargained for as part of more comprehensive technical units in the television industry gen- erally. These grounds are clearly not persuasive. As to the alleged integration of the projectionists, it need only to be observed that the Employer's announcers perform at least as essen- tial a functional role in radio and television broadcasts as do, the pro- 21 Many localities require that television projectionists , like these in motion picture theaters, be separately licensed. Although such requirement does not prevail in Detroit, it appears from the record that the local authorities deferred the licensing of projectionists only after investigating the Intervenor 's journeyman examinations and finding them adequate. 22 It should also be noted that the projectionists receive wages of approximately $50 per month more than the engineering personnel. 23 Although the record indicates that certain of the Employer's engineers have, in the past, served in the capacity of projectionists, this circumstance is clearly without con- trolling significance, inasmuch as they are not now either functioning as, or exercising the skills of, projectionists, in the course of their employment. General Electric Company, 86 NLRB 327; cf. Ewing Printing Company, 85 NLRB 237. Nor does the identity of supervision of the projectionists and the engineers and tech- nicians, adverted to by the majority, militate against the separate craft status of the projectionists . Reynolds Metals Company, 85 NLRB 110. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jectionists in supplying the initial film images, and that both appear to coordinate their activities with the engineering personnel to ap- proximately the same degree. Yet, the majority implicitly finds, and I fully agree, that the announcers are not so integrated with the engineers and technicians as to compel their inclusion in the technical unit. Consistency alone would therefore require a rejection of this ground .24 With respect to the pattern of bargaining, this factor is obviously of slight significance in view of the limited period that commercial television has been in operation in the United States.26 In any event, while it may be true that projectionists have been bargained for as part of engineering units in certain localities, this practice clearly has not become established for the entire industry. Thus, for example, in the other television stations in Detroit, which is the immediate competitive area of the stations involved herein, projectionists are uniformly excluded from more comprehensive units. And a similar policy of excluding projectionists prevails elsewhere in such stations as WPIX (New York) and KSD (St. Louis). . Accordingly, as the projectionists fully satisfy the Board's criteria for separate craft representation, I would find, in accord with the request of the Intervener and the stipulation of the Petitioners, that the projectionists should be excluded from the unit of engineers and technicians and established as a separate craft unit. 24 Cf. The WPTF Radio Company, 82 NLRB 254 , where the Board excluded turntable operators from a technical unit, although they exercised "limited coordination of duties and functions" with the station engineers. The instant case obviously differs from those decisions , such as Ford Motor Company, 78 NLRB 887, in which the Board has ruled that craftsmen who work alongside production employees, -performing assembly -line operations , are; not entitled to separate representation. It, is also patently distinguishable from KMTR Radio Corporation (KLAC-TV), 85 NLRB 99, cited by the majority , where no labor organization was seeking to represent the projectionists in a separate unit. 25 See West Tacoma Newsprint Co., and Cellulose Engineers, Inc., 81 NLRB 961, and Columbus Bolt Works Company, 76 NLRB 305, where the Board , in consonance with its usual practice , refused to accord material weight to bargaining histories of short duration. See also Aluminum Company of America, 83 NLRB 398, and Hunter Packing Company, 79 NLRB 197, in which the Board permitted separate craft units notwithstanding the absence of craft representation in the industries concerned.