Miami Valley Broadcasting Corp.

C, In the Matter Of MIAMI VALLEY BROADCASTING COR.P., OPERATING RADIO STATION WHIO, EMPLOYER and CINCINNATI LOCAL AMERI- CAN FEDERATION OF RADIO ARTISTS, A. F. L., PETITIONER Case No. 9-R-9159.-Decided August 30,1946 Messrs. Irving G. Beiser and Robert Moody; of Dayton, Ohio, for the Employer. Messrs. Daniel Rjss and Andre Carlon, of Cincinnati, Ohio, for the Petitioner. Mr. Pearl Culbertson, of Dayton, Ohio, for the Intervenor. Mr. Conrad A. Wickham, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Dayton, Ohio, on June 11 and 24, 1946 1 before Hyman H. Ostrin, Trial Exam- iner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Miami Valley Broadcasting Corp., incorporated under the laws of the State of Ohio, operates radio station WHIO at Dayton, Ohio. The station is licensed by the Federal Communications Commission and operates day and night over a designated frequency of 1290 kilo- cycles. Approximately 50 percent of the station's operating time is devoted to broadcasting programs originating with the Columbia Broadcasting Company, with which it is affiliated. The station's sig- nal can be heard within a radius of 50 miles, which would include a portion of the State of Indiana. Electric power to operate the station is derived from the Dayton Power and Light Company. Dur- i The hearing was adjourned between June 11th and 24th in order to notify and permit American Federation of Musicians , Local 101, A. F. L., to intervene. 70 N. L. R. B., No. 77. 1015 n 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the past year the Employer sold radio advertising valued in excess of $100,000, 67 percent of which represents receipts from the sale` of national advertising. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with American Fed- eration of Labor, claiming to represent employees of the Employer. American Federation of Musicians, Local 101, herein called Inter- venor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit of all employees of the Employer who appear before the microphone in a professional capacity, including all staff announcers and special program announcers, the latter group em= bracing the musical director, news announcers, specialty artists and the sports announcer, but excluding the program director, the copy- writer,2 the Hillbillies,' the assistant musical director, the Sportsman's Forum announcer,. and those persons referred to as public service an- nouncers 4 Although the Employer agrees to the exclusion of the program director, copywriter, Hillbillies and public service announcers, it would also exclude all the special program announcers, and include only the seven staff announcers in the unit. It contends that the special program announcers write and edit their own programs, work under different rates of pay, and have no community of interest with the staff announcers. It argues, however, that if any special program an- nouncers are included, then the assistant musical director and the Sportsman's'Forum announcers should also be included. In the alter- 2 This employee makes no appearances before the microphone. S These employees are musicians primarily , and are already represented by the American - Federation of Musicians, Local 101, which has intervened in this proceeding. * This group includes three ministers and announcers appearing exclusively on the Con- servation, Better Business Bureau, Youth Show, American Airlines, 4-H, Market Report and Home Demonstration programs . None of these are paid by the Employer. Of. Matter of L. B. Wslson, Inc., 54 N. L. R. B. 125 (family consultation service announcer). MIAMI VALLEY BROADCASTING CORP. 1017 native, the Employer suggests that these employees be given an oppor- tunity to decide for themselves in separate elections whether or not they wish to be included in the unit. The Employer's program organization is headed by the program director. He is directly responsible for the proper presentation of all programs on the air and has the authority to hire and discharge. Under his supervision are all of the employees who appear before the microphone. The status of these employees as appropriate members of the prospective bargaining unit is discussed and ruled upon below. Staff Announcers The Company employs seven staff announcers whose duties are essentially the same. These employees introduce various types of radio programs by reading previously prepared lines or by making extemporaneous remarks. They read, and to some extent edit, news flashes, and act as masters-of-ceremony for certain programs originat- ing at the station. In connection with some programs they actually compile the necessary continuity. Froni time to time they may be called upon to do some acting and also to substitute for the special program announcers. In such cases, the announcer reads the script which has been prepared by the special program announcer. All staff announcers attended staff meetings called by the program director for the purpose of discussing policy, program presentation, and occasion- ally employment conditions and working policies. All of these em- ployees are subject to the same working conditions, pay ratings, and vacation privileges. We find, in accordance with the agreement of the parties, that they should be included, in the unit. Special Program Announcers These employees, of whom there are eight, are all carried on the Employer's pay roll. Four are paid weekly salaries and enjoy vaca- tion privileges identical to those of the staff announcers. The others are paid on a program basis and must arrange vacations to fit their schedules or arrange for substitutes in their absence, the substitutes being paid by the employer in such cases. Although staff announcers occasionally substitute for them, the converse is not true. When mat- ters of over-all policy are discussed, the special program announcers also attend the joint staff meetings called by the program director. Five of them mention commercials on their programs. As will appear from our treatment of the individual categories, we are of the opinion that, with the one exception noted below, these em- ployees perform essentially similar functions to those of the staff announcers and have a community of interest with them , despite the 1018' DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that some of them may take a greater part in the preparation and editing of their programs and that some are paid on a performance basis.5 (a) News Announcers: There are two such employees on the Em- ployer's pay roll, one of whom is also employed by the Dayton Daily News. The latter is a -news commentator who presents one 15-minute program per week, while the other presents news reports about 70 minutes per day, 6 days a week. The Daily News announcer is paid on a program basis and the station news announcer on a weekly basis. There appears to be little difference in the type of broadcast which these employees render as compared to the newscasts presented by staff announcers. In all cases the news is obtained from the teletype ma- chine, edited and announced. The Daily News announcer, however, does inject some editorial comment into his program, whereas the, others do not. We are of the opinion that the duties of the news an- nouncers are sufficiently similar to those of the staff announcers to establish a community of interest between them. We shall, therefore, include them in the unit. (b) Sports Announcer: This employee is also employed by the Dayton Daily News. He is on the Employer's pay roll, however, on a program basis, and appears on the air 5 times per week in 15-minute. presentations. He prepares and edits his own script and, in the course of announcing, mentions commercials. His duties appear to be funda- mentally similar to those of the staff and news announcers. We shall include him in the unit. (c) Musical Director: This employee is responsible for the proper presentation of the Employer's musical broadcasts and plays the piano and organ for both auditions and programs. He, himself, prepares and conducts seven 15-minute programs per week, on-each of which he ap- pears not only as a musician, but as an announcer and actor, reading prepared script, including commercials, talking informally, and an- nouncing his music. He is paid by the Employer on a weekly basis and, in addition, apparently receives additional pay from the sponsors of his programs for his part in rendering their commercials. Presently, in his capacity of musician, he is a member of, and is represented by, the Intervenor for bargaining purposes. The Intervenor, however, ap- pearing in this proceeding specifically for the purpose, disclaims juris- diction over him insofar as his announcing and acting functions are concerned. We are of the opinion that the amount and character of the duties that this employee performs as an announcer and actor, sepa- rate and apart from those performed as a musician, are sufficient to- 5 Matter of Columbia Broadcasting System , Inc., 47 N. L. R. B. 1225 . Cf. Matter of Badger Broadcasting Co. (WIBA Radio Station ), 64 N. L. R. B. 1450 ; Matter of KMOS Broadcasting Station, 10 N. L. R. B. 479. MIAMI VALLEY BROADCASTING CORP. 1019 warrant the conclusion that he appears before the microphone in the professional capacity of an announcer. We shall, therefore, include him in the unit." (d) Assistant Musical Director: This employee is responsible for the filing and indexing of recordings, sheet music and original arrange- ments, suggesting selections to the program director, and issuing mu- sic to the musicians. He also appears on the air on 15-minute programs 5 days per week. Although it appears that he has infrequently men- tioned commercials on the air, he is not authorized to do so. He does not write his own script, and apparently, aside from announcing his own musical selections, he does practically no talking on the air. He is on the Employer's pay roll and receives a weekly salary, and, like the musical director, is presently represented by the American Federation of Musicians, which has disclaimed jurisdiction over him insofar as he may act in the capacity of an announcer. It is our opinion that he appears before the microphone primarily as musician and not as an announcer. We shall, therefore, exclude him from the unit.? (e) Free Lance Specialty Artist: This employee appears on the air 6 times a week on programs of 15 minutes' duration. She prepares and edits her own script and talks about subjects of general interest to women. In the course of her announcing she mentions commercials. She is paid by the Employer on a program basis. We find that her duties are essentially similar to those of the staff and news announcers, and shall include her in the unit. (f) Typist and Commercial Continuity Writer: In addition to the duties implied by her title, this employee appears on a 15-minute program 5 days a week. She announces the program and mentions commercials. She is paid a weekly salary by the Employer. We find that she too performs the functions of a professional announcer and shall include her in the unit." (g) Sportsman's Forum Announcer: This employee broadcasts one 15-minute show per week on which he discusses subjects related to sports. The program is quite similar to that conducted by the State Conservation announcer, and the Employer states that it is in the nature of a public service program. However, the announcer is paid by the Employer on a program basis, and the latter would sell the show to a suitable sponsor were one to become available. We are not persuaded by the Petitioner's argument that this employee is in the same category as the group we have excluded as public service announcers. His du- 9 Cf. Matter of L. B. Wilson, Inc., 54 N L. R. B. 125. 4 Ibid. 8Matter of L. B. Wilson, Inc., 54 N. L. R. B . 125; Matter of Star-Times Publishing Com- pany, 25 N. L. R. B. 492. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties appear to be no different from those of the news announcers insofar as service to the public is concerned. We shall, therefore, include him in the unit. o We find that all employees of the Employer who appear before the microphone in a professional capacity, including the staff announcers, news announcers, sports announcers, musical director, free lance speciality artist, typist and commerical continuity writer, and Sports- man's - Forum announcer, but excluding the program director, Hillbillies, copywriter, assistant musical director, and public service announcers, and all or any supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Miami Valley Broadcasting Corp., operating Radio Station WHIO, Dayton, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Relations Board Rules and Regulations-Series 3, as amended, among the em- ployees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, 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, to de- termine whether or not they desire to be represented by Cincinnati Local American Federation of Radio Artists, A. F. of L., for the purposes of collective bargaining. 'MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Direction of Election.