American Broadcasting-Paramount Theaters, Inc.

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poses of collective bargaining under Section 9 (b) of the Act, at the Employer's River Works with plants in Lynn, Everett, and Boston, Massachusetts, excluding from each group all other employees, professional employees, guards, and super- visors as defined by the Act: 1. All office clerical employees. 2. All production and maintenance employees, including plant clerical employees, laboratory, and engineering assist- ants. [Text of Direction of Elections omitted from publication.] AMERICAN BROADCASTING COMPANY, A DIVISION OF AMERICAN BROADCASTING-PARAMOUNT THEATERS, INC. and NATIONAL ASSOCIATION OF BROADCAST EM- PLOYEES AND TECHNICIANS, CIO, Petitioner. Case No. 21-RC-3107. November 16, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman H. Greer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all office clerical employees.' at the Employer's Los Angeles and Hollywood, California, offices. The Employer seeks dismissal of this petition on the ground that a single unit of these em- ployees is inappropriate because there are as many as eight separate and distinct "units" in the proposed unit, each of which has a different community of interest. The Employer refers to the following of its employees in its Los Angeles and Hollywood offices: (1) secretaries; (2) telephone operators; (3) continuity acceptance and literary rights department em- ployees; (3) accounting department employees; (5) "production employees";' (6) personnel department employees; (7) TV 'The Petitioner referred to these employees as office and clerical. These employees are all plainly office, rather than plant, employees Pursuant to our recent policy of discon- tinuing this term of "office and clericals," we will designate these employees as office clericals. See D. M. Stewart Mfg. Co. 102 NLRB 461 2TV production analyst, assistant to the TV engineering director and the TV music librarian. 107 NLRB No. 20. AMERICAN BROADCASTING COMPANY 75 music librarian ; ( 8) and those whom the Employer designates as "office " but not "clerical" employees . 3 With certain stipulated exceptions , the unit sought by the Petitioner includes all office clerical employees of the Employer in the Los Angeles area . There is no bargaining history for these em- ployees. These offices comprise the headquarters of the Em- ployer ' s western division and the radio station KECA and television station KECA- TV, which are under the westerndivi- sion. Each of the groups itemized above performs its respective tasks in furtherance of these operations , as do all the other employees whom the Petitioner seeks to represent . All these employees are served by the accounting and personnel depart- ments . The record indicates some interchange of employees. All have the same benefits and working conditions . In view of such similar working conditions and community of interest among these employees , we find that the proposed office clerical unit is appropriate. 4 There remains for consideration the Employer ' s contention, opposed by the Petitioner , that certain employees should be excluded. Assistant and secretary to the director of TV engineering (Elaine Rogers and Shirlee Rentz): The primary duty of the assistant is to schedule the work assignments of the TV engi- neers at the Employer ' s Hollywood operations , including their overtime work. The quality of performance and the personality of the engineers , as well as the size of the crew required for a given show , their vacation schedules, and budget limitations, are all considered in making up the work schedule. The engineer ' s individual capabilities are appraised by the as sistant through her own observation and reports from the technical directors . She also makes arrangements to rent equipment; apparently in these latter duties she is aided by the secretary. In the event of the assistant' s illness or vacation the scheduling of the engineering crew is performed by the secretary, who otherwise performs mostly the normal secretarial duties. We are satisfied that the independent judgment required of the assistant in assigning work to the engineers places her within the definition of supervisor in Section 2 (11) of the Act, and we will exclude her from the unit. As the secretary performs these tasks only sporadically , upon the occasion of the as- sistant's illness or vacation , we find in accordance with our established policy , that she does not have supervisory status, and we will include her in the unit.5 3 Examples of those whom the Employer would so designate are continuity acceptance and literary rights department employees , the assistant to the TV engineering director, and the TV music librarian 4The Crowell Collier Publishing Company, 102 NLRB 1236 ; Chrysler Corporation. 76 NLRB 55. 5 Coastal Plywood & Timber Company, 102 NLRB 300 In view of our determination we deem it unnecessary to consider the Employer 's contention that the assistant should be excluded for other reasons. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Secretary to the director of engineering and special serv- ices (Alice Box): When her supervisor is out of town, Miss Box, besides her normal secretarial duties , is consulted upon personnel matters by the heads of the general service depart- ments, which consist of about 250 employees. For the first 6 months of the past year, while the present head of the steno- graphic department was becoming acquainted with that position, Miss Box handled the hiring in that department. During the last 6 months , although that supervisor has taken over the interviewing because Miss Box has been too busy with other matters, she still consults with Miss Box in hiring decisions. Similarly, the secretary is consulted by the heads of the general service departments in cases involving discharges. We find that Miss Box's functions in the hiring and discharge of employees classifies her as a supervisor . Therefore , we will exclude her from the proposed unit. Accounting supervisor (Mabel Rappaport): Miss Rappaport assists the auditor by doing accounting work herself and also by helping to manage the accounting department employees. She also checks up on the performance of the employees to whom she has assigned work. Although she has little to do with the hiring , she has the authority to recommend discharge and has done so on occasion . According to her testimony , as well as that of her superior, the controller, such recommendations for discharge are given considerable weight. She recommends with regard to transfers and promotions of employees in the accounting department . Upon these facts we find that the ac- counting supervisor is a supervisor within the meaning of the Act, and we will exclude her from the unit. Accounts receivable supervisor (Sylvia Palo): Accounts receivable is a subdivision of the accounting department, in which are 5 employees whose immediate superior is Miss Palo. She disciplines these employees, and she has the power to recommend their discharge . It is her responsibility to see that the other employees in the department do the work necessary. According to the controller, her superior, Miss Palo's recommendations with respect to discharge , as well as promotions and increases, are given great weight in the making of the decision. We find that the accounts receivable supervisor is a supervisor within the meaning of the Act, and we will exclude her from the unit. Cashier (Ula Lee Lloyd): Miss Lloyd is responsible for the accounting department ' s disbursement . She assigns work to her assistant and has made recommendations which have re- sulted in a transfer or discharge of several assistant cashiers. Both the general manager and controller of the western divi- sion testified to the effectiveness of Miss Lloyd ' s recom- mendation in the selection of an assistant . We find that she is a supervisor , and we will exclude her from the unit.6 6On the last day of the hearing, June 9; 1953, there was no cashier's assistant. However, it was anticipated that one would be selected soon. AMERICAN BROADCASTING COMPANY 77 Alleged Confidential Employees Telephone operators: The Employer argues that these seven employees should be excluded from the unit as confidential employees in view of the extensive use made by the Employer of such communication because much of the Employer's labor relations matter are handled, or at least controlled, from its head office in New York by telephone. Their duties, however, do not include the monitoring of the conversations. As the Board has repeatedly held, the mere opportunity to overhear conversations involving labor relations does not make tele- phone operators confidential employees. Accordingly, we will include them in the unit.7 Secretaries : By agreement of the parties , the secretaries to the Labor Relations manager, the vice president, and the general manager of the Employer's western division were excluded from the unit as confidential employees. The Em- ployer would also exclude as confidential employees the secretaries to 16 other officials of the Employer ' s Western Division. 8 Helen Gault, secretary to the Network and KECA program director, testified that she has taken dictation from the labor relations manager , western division . She couldnotrecall, however, the last time she had done so, except that she knew that she had not taken dictation on labor relations matters from him during this current year. We find this evidence insufficient to warrant a finding that Gault is a confidential employee. Ede Devins , secretary to director of news and special events, shares with her superior the exclusive duty of receiving messages termed as "confidential" by the Employer over a private teletype machine. These messages in some cases concern labor relations matters and originate in the Employer's headquarters in New York City. As there is no evidence that these "confidential" messages deal with the Employer ' s general labor relations policies, and are not merely instructions to its western division , we do not find that access to this informa- tion warrants the exclusion of Miss Devins from the unit.' The record further reveals that bargaining negotiations in this Los Angeles area occur only for initial agreements, between the Employer and the bargaining representative, covering employees in the western division . These agreements 7 Titeflex, Inc., 103 NLRB 223; Pittsburgh Metallurgical Company, Incorporated, 100 NLRB 1450. 8Director of TV, western division ; director of radio, western division ; KECA- TV manager; KECA manager; network TV program director, western division; assistant network TV program director , western division ; KECA-TV program manager ; network and KECA program director ; controller , western division ; director of TV engineering; director of radio engineering; director of TV promotion and publicity. director or radio promotion and publicity; director of promotion and publicity services ; film director; news and special events director. 9Cases cited in footnote 10, especially Republic Steel Corp., infra. 337593 0-55-7 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are then incorporated into the Employer's nationwide master agreements . All contract negotiations thereafter are held on a nationwide level and do not directly involve these Holly- wood officials . The local area negotiations are conducted by the labor relations manager , under the direction of the vice president and general manager of the western division, who determine the acceptibility of the contracts negotiated. The labor relations manager testified that he confers with these 16 heads of departments , whose secretaries the Em- ployer seeks to exclude , in order to "get all the particulars and details pertaining to the working conditions" of the employees under them . Some of the department heads have accompanied the labor relations manager at times in these local area negotiations , and, under a recent company rule, they are now required to be present. The department heads also handle grievances among em- ployees within their own departments . The files of these officials , to which their secretaries have access , contain material relating to these activities of the western division including the contracts themselves, grievances, company interpretations of the contracts , and intracompany com- munications . As the evidence fails to establish the per- formance by these 16 western division officials of managerial functions regarding the Employer ' s general labor relations policies , we are not persuaded that their secretaries' role is a confidential one which warrants depriving these employees of their rights under the Act. 11 We will therefore include them in the unit. Personnel department employees : There are two personnel assistants to the personnel director . They handle payroll changes and the clerical work connected with employees insurance policies , which tasks require the use of employee personnel files , including records of wage increases. They conduct the initial interviews for job applicants . This interview- ing consists essentially of making sure that the application form is correctly and sufficiently filled out . The assistants note the appearance of the applicants and also classify them according to their skills . " The personnel director herself interviews the eligible applicants and sends those qualified for the vacant position to the department head concerned. Although these employees have access to records and report which the Employer considers confidential, the record does not to Standard Brands Incorporated , 101 NLRB 1349; Gulf States Telephone Company, 101 NLRB 270; Republic Steel Corporation , 91 NLRB 904, and the cases cited therein; Ball Brother's Company Incorporated, 87 NLRB 34 ; Inter-Mountain Telephone Company, 79 NLRB 715 "One of the personnel assistants, when asked if anyone is ever hired by her without consultation with anyone else, stated that "we might be told to select" and employee for the mail room if that supervisor were not there. It is not clear from this evidence, or from the record as a whole , how the actual hiring decision would be made in this situation There is no contention that these employees are supervisors , nor do we find from this record that they are. AMERICAN BROADCASTING COMPANY 79 show that they act in a confidential capacity to per sons exercis- ing managerical functions in the field of labor relations. We find that they are not confidential employees. We shall, therefore, include them in the unit. 12 Alleged Managerial Employees Continuity acceptance and literary rights department em- ployee s: There are 8 employees in this department. They review broadcast material to determine if its adheres to the Em- ployer's programing policies. For this function they are guided by the Employer's "policy books," an exhaustive body of doctrine. An experienced employee in this department may reject material which doe s not conform to the Company's policy. All of these employees receive salaries of from $200 to $300 a month. In view of the extensive restriction placed upon these employees' discretion in the application of the company policy by its "policy book," we find that these employees do not formulate , determine , and effectuate management policies within the meaning of the Board's definition of managerial employee s.,13 TV production analyst (James J. Mandulay): As his title sug- ge sts, Mr. Mandulay ascertains the actual cost of the "back lot" television operations . He audits time cards and makes a labor cost report , among others , to the controller . His regular duties include the suggestion of procedures for improving the efficiency of the organization and production. The suggestions often involve the scheduling of hours worked by employees. He is responsible to see that the collective -bargaining agreements in his area are not violated, and he has helped formulate the Employer's inter- pretation of the contract clauses. Mr. Mandulay's opinion as to the desirability from management's standpoint as to certain pro- posed contract clauses has been solicited by the western divi- sion' s labor relations manager during contract negotiations. He holds a B.S. in business administration. The Employer contends that Mr. Mandulay should be excluded because he is a managerial employee, as well as on the grounds that he is a confidential employee, a professional employee, and "a production clerical" employee. We are of the opinion that Mr. Mandulay'sduties, involving to some extent the formulation and effectuationof the Employer's policies, ally him more closely with management than with the other employees whom the Petitioner seeks to represent. 14 Therefore, we will exclude the TV production analyst from the unit. TV music librarian(Edith Jenkins): Miss Jenkins spends most of her time choosing recorded music to suit particular produc- tions. She also buys records to maintain the music library. In 12 Minneapolis-Moline Company, 85 NLRB 597; Bonwit Teller, Inc., 84 NLRB 414; see Copperweld Steel Company, 102 NLRB 1229; cf Western Electric Company, Incorporated, 100 NLRB 420. 13 Wilson & Co , Inc., 97 NLRB 1388; A. S. Abell Company, 81 NLRB 82; Greensboro News Company, Inc., 85 NLRB 54. 14Dortch Stove Works, Inc., 79 NLRB 1258. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selecting music for programs she sometimes works with pro- gram directors and sponsor representatives. Although her musical background is quite extensive, she testified that not a great deal of musical knowledge is necessary for her duties. She is paid $285 amonthandhasno assistant. About 25 percent of her time is spent indirect clerical work. The Employer con- tends that Miss Jenkins is a professional employee, and also that her duties are more closely allied with production activities than office or clerical work. Upon these facts we reject both of the Employer's contentions and find that the TV music librarian is properly included in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All office clerical em- ployees at the Employer's Hollywood and Los Angeles, Califor- nia, offices, including employees in the continuity acceptance and literary rights department, TV music librarian, secretaries to department heads, 15 all mail room and message service em- ployees, telephone operators, personnel department employees; but excluding watchmen, guards, professional employees, the TV production analyst, and all other employees and supervisors Was defined in the Act. 17 [Text of Direction of Election omitted from publication.] 1s Except, as stipulated, the secretaries to the western division 's labor relations manager, general manager, and vice president. 16Including the accounting supervisor and the accounts receivable supervisor , assistant to the director of TV engineering , secretary to the director of engineering and special services , and the cashier. 17 It was stipulated by the parties that the following should be excluded from the unit: page staff; tour people; guest relations personnel ; salesmen; head of continuity acceptance department ; music clearance supervisor ; guest relations supervisor ; mail room and mes- senger supervisor ; production control manager; sales service manager of network radio; sales service manager for KECA-TV; payroll supervisor ; supervisor of TV stenographic department ; PBX supervisor; supervisor of announcers ; radio supervisor of announcers; radio program operations manager; director of TV program operations; and the auditor. SPECIALTY MANUFACTURING COMPANY, INC. and DIS- TRICT 37, INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, AFL, Petitioner. Case No. 39-RC-659. November 16, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Wilton Waldrop, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 1 At the hearing, the petition and other formal papers herein were amended to reflect the correct name of the Employer. 107 NLRB No. 28.