Kennedy Broadcasting Co.

354 DECISIONS ' OF NATIONAL -LABOR - RELATIONS BOARD '2. The Union is a labor-organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the employees listed above in "The remedy" section, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. - 6. Respondent has not engaged in the unfair labor practice, as alleged in the complaint, of discriminatorily demoting and reducing the earnings of A. L. Smith. . [Recommended Order omitted from publication in this volume.] KENNEDY BROADCASTING CO. ; 1 CHARLES E. SALIK ; DON LEE BROAD- CASTING SYSTEM SAN DIEGO BROADCASTING CO.; STUDEBAKER BROAD- CASTING Co. and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, CIO, PETITIONER. Cases Nos. 01-RC-1927, 21-RC-1928, 21-RC-1933, 21-RC-1934, and 21-RC-1935. Sep- tember 24,1951 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Arthur Hailey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel ,[Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act.3 - I The name of the Employer, formerly Jack Gross Broadcasting Co , Inc., appears as amended at the hearing. 2 The hearing officer referred to the Board the Petitioner's motion made at the end of the hearing to set aside the order of consolidation on the ground that it would delay the selection of a bargaining representative in those cases having no issues. Setting aside the order of consolidation at the end of the hearing would have resulted in no material expedition in the handling of these cases. Accordingly, the motion is hereby denied. 2 Each of the Employers herein operates a radio station at San Diego, California. The Kennedy Broadcasting Co., the Employer in Case No. 21-RC-1927, also operates a tele- vision station located at San Diego., 96 NLRB No. 51. KENNEDY BROADCASTING CO. 355 .2. The labor organizations involved claim to represent certain em- ployees of the Employers.4 3. The only dispute over the existence of a question affecting com- merce concerning the representation of employees arises in Case No. 21-RC-1933, involving Don Lee Broadcasting System, herein called Lee. In that case, the Intervenor urges as a bar to an election a con- tract between itself and Lee executed on July 1, 1948, covering em- ployees at four of Lee's stations including those at its San Diego station, the only Lee station involved herein. The contract was exe- cuted by the Intervenor "for and in behalf of" Locals 45, 202, 413, and 569; each of these locals represented the employees at one of the four stations, with Local 569 representing those at the San Diego station. The contract was effective for 1 year, and from year to year there- after in absence of written notice of a desire to change or terminate given by either party at least 60 days before June 30 of any year. By letter dated April 26, 1951-before the contract automatic renewal date, the Intervenor, in accordance with the provisions of the con- tract, notified Lee of its desire to change the contract with respect to the wages of the San Diego station employees. On or about the same day, the Petitioner notified Lee of its claim to represent these employees. On May 1, 1951-after the automatic renewal date, but less than 10 days after the claim of representation-the petitioner filed its petition herein. The Intervenor contends that the petition was untimely because it was filed after the contract's automatic renewal date. This conten- tion lacks merit. It is well established that where, as here, a claim of representation is made before the automatic renewal date and is fol- lowed within 10 days thereafter by the filing of a valid petition,,' the contract is removed as a bar to an election.6 This contract bar principle is applicable in this instance even though the contract in question covers employees other than those at the San Diego station inasmuch as it is undisputed that the San Diego station employees constitute an appropriate unit. Moreover, the record discloses that subsequent. to the execution of the contract, the parties utilized the contract's reopening provision to 4 At the hearing, International Brotherhood of Electrical Workers, AFL, herein called the Intervenor, intervened on behalf of its Local 569 in all cases except Case No. 21-RC- 1935, involving Studebaker Broadcasting Co. Intervention was permitted on the basis of a showing of interest in each instance. 6 Here, although the Petitioner later amended Its petition , the purpose of the amendment was merely to reflect a change in the Petitioner 's affiliation. The 10-day period is therefore properly computed from the filing date of the original petition . Pacific Coast Association of Pulp and Paper Manufacturers , 94 NLRB 1516; The Medart Company, 95 NLRB No. 153. 6 United States Time Corporation, b6 NLRB 724 ; cf Brink's Inc., 89 NLRB 1241. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propose and carry out negotiations on an individual station basis. Hence, in view of this practice; the Intervenor's notice of April 26, 1951, to reopen the contract would itself suffice to remove the contract as a bar to a present determination of representatives in Case No. 21-RC-1933.7 Questions affecting commerce exist concerning the representation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units : Case No. 21-RC-1927 ' In accordance with the stipulation of the parties, we find that all engineering, technical, and production employees employed in the op- eration of the Kennedy Broadcasting.Co. Radio Station, KFMB, and Television Station, KFMB-TV, San Diego, California, excluding di- rectors, producers, writers, announcers, talent, watchmen, guards, pro- fessional employees, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Case No. 21-RC-1928 Although the parties agree as to the description of the unit, they disagree with regard to the status of the following individuals whom the Employer, over the objections of the Petitioner, would "exclude as supervisors. The chief engineer is a member of the Employer's executive staff. In this respect, the Employer testified that his engineering department is different from those of other San Diego stations. The chief engi- neer directs the hiring and firing of all engineering personnel. Ac- cordingly, we find that the chief engineer is a supervisor within the meaning of the Act, and we shall, therefore, exclude him from the unit. The transmitter supervisor is in charge of five employees at the transmitter. Although he is included in the current contract unit, the uncontradicted testimony of the Employer shows that the trans- mitter supervisor effectively'recommends the hiring, discharge, pro- motion, and discipline of these five employees. On the basis of the °J. P. O'Neil Lumber Company, 94 NLRB 1299; Castle Dome Copper Company, 80 NLRB 1 ; International Harvester Company, 88 NLRB 83; Worthy Paper Company Asso- ciation, 80 NLRB 19. KENNEDY BROADCASTING CO. 357 foregoing, we find that the transmitter supervisor is a supervisor with in the meaning of the Act, and we shall, therefore, exclude him from the unit. We find, in accordance with the agreement of the parties, that all engineers and technicians at the Charles E. Salik Radio Station, KCBQ, San Diego, California, excluding watchmen, guards, profes- sional employees, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Case No. 21-RC-1933 In accordance with the stipulation of the parties, we find that all engineers and technicians, including the vacation relief men at the Don Lee Broadcasting System Radio Station, KBG, San Diego, Cali- fornia, excluding watchmen, guards, professional employees, and su- pervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Case No. 21-RC-1934 In accordance with the stipulation of the parties, we find that all engineers and technicians, including the chief engineer at the San Diego Broadcasting Co. Radio Station, KSDO, San Diego, California, excluding watchmen, guards, professional employees, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Case No. 21-RC-1935 In accordance with the stipulation of the parties, we find that all engineers and technicians at the Studebaker Broadcasting Co. Radio Station, KSON, San Diego, California, excluding watchmen, guards, professional employees, and supervisors as defined in the Act, consti- tute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Elections omitted from publication in this volume.] 974176-52-vol 96-24