Scripps-Howard Radio, Inc.

SCRIPPS-HOWARD RADIO, INC. 293 Appendix NOTICE To ALL EYIPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate, the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NoT discourage membership in UNITED STEELWORKERS OF AMERICA, CIO, or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor prganizations, to join or assist UNITED ' STEELW ORI£k:RS OF AMERICA, CIO, or any other labor organization, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Raymond M. Tancrell immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act, WHITIN MACHINE WORKS, Employer. Dated------------------------------ By----------------------------------- (Representative ) ( Title) This notice must remain posted 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SCRIPPS-HOWARD RADIO, INC. and TELEVISION AUTHORITY, PETITIONER.' Case No. 8-RC-1510. July 21, 19,52 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Carroll Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. i The American Federation of Radio Artists intervened in this case and joined with the Petitioner in seeking an election . The intervention is based on their proposed merger into one organization, to be called American Federation of Television and Radio Artists, which was to become effective on or about July 1, 1952. 100 1VLRB No. 53. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. . 2. The labor organization- involved claims to represent employees of the Employer. 3. No 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, for the following reasons: The Petitioner, herein called TvA, seeks to represent "all persons employed as talent on all live television programs broadcast over WEWS," the Employer's Cleveland, Ohio, television station. The Employer would limit the unit to its own employees, and opposes inclusion of free lancers, who, although performing on live television programs broadcast over WEWS, are employed by sponsors or adver- tising agencies and not by WEWS. WEWS is one of three television stations now broadcasting in Cleveland.2 Like most other broadcasters-both television and radio- it operates on a commercial basis. It carries some network broadcasts; it produces some sustaining, or unsponsored, programs; it produces other programs which it sells time for short, or "spot," announcements ; and finally, it "leases" broadcasting time and studio facilities to adver- tising agencies and sponsors which produce their own commercial programs 3 WEWS maintains a permanent staff of announcers, who, because they appear on the air, are classified as "talent." These em- ployees, for the most part, appear only on programs produced by WEWS. They are regular employees of the station and accountable only to WEWS. The talent which appears on agency and sponsor produced programs consists of free lance performers, drawn from a pool of talent whose members work for about 50 advertising agencies engaged in producing commercial programs in the Cleveland area. The performers in this pool, whose size is not revealed by this record, have no continuity of employment. Their work for a given agency or sponsor may be limited to one 15-minute performance, or it may be for a 13- or 26-week series of programs. The record shows that free-lance talent employed on agency pro- grams, is selected by the agencies, not by WEWS. The agencies set and pay wages, fix hours and duration of employment, assign roles, provide scripts, and have the conventional "employer" relationship 2 There will be two more commercial and one educational television licenses granted in the Cleveland area soon. 3 For purposes of this case, it is immaterial whether commercial programs not originated and staged by WEWS are produced by advertising agencies or by sponsors All such pro- grams are hereafter called "agency programs ," the term used by the parties in the record SCRIPPS-HOWARD RADIO, INC. 295 with 'all free-lance talent appearing on their programs. Through su- pervisory personnel called producers, the agencies set standards of performance required of these actors. If a performer fails to satisfy the producer in charge of the program, the latter has undenied power on behalf of the agency to take disciplinary action. WEWS also exercises some control over free-lance talent. It assigns one of its staff directors to each program, whether agency produced or sustaining. The station's director is authorized to give detailed in- struction to all performers. His powers over free lancers, however, are limited to matters concerning the technical aspects of each pro- gram. He advises them as to makeup, clothing, and manner of deliv- ery, cues the cameras, and gives like directions concerned with the mechanics of producing a satisfactory program. Like all other broadcasters in the United States, WEWS operates under a Federal Communications Commission license, and is subject to FCC rules and regulations. It bears responsibility for all action- able material broadcast over its frequency, and is a voluntary adherent to industry codes of conduct which establish standards of program morality and taste. As licensee, WEWS requires all material broad- cast from its facilities to conform to the criteria created by these regu- latory mechanisms. On the basis of these facts and on the record as a whole, we are not convinced, as TvA urges, that WEWS stands in the role of "employer" to the free lance performers. Except for the directions given free lancers by its staff directors, WEWS is merely the lessor of the time and technical facilities to the advertising agencies. The Petitioner does not deny, nor could it on the facts of this record, that performers on agency produced shows are direct employees of the agencies in the conventional sense. It argues, nevertheless, that WEWS exercises sufficient control over them to be deemed their "employer" for collec- tive bargaining purposes. The sole control exercised by WEWS over free-lance performers is that vested in its directors, who control only the mechanical details of their performance. There is no suggestion in the record that WEWS, through its staff directors, exercises any control at all over such matters as wages, hours, or other employment conditions of free lancers. Yet those are the normal, indeed the essential, subjects of collective bargaining. We regard the function of the staff directors as an integral part of the Employer's leased facilities. In this respect, directors do not differ from the cameramen or engineers, who are also staff employees of WEWS. Their power to give direction is not sup- plemented by the power to discharge, or in any other way to discipline, the free lancers. True, staff directors have absolute power to cut any program from the air. But this power, which is unrelated to labor 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters, may be exercised only when the program violates the Em-, ployer's standards governing program content. And we emphasize that. such matters concern-WEWS and the agencies, not free.fancers on the program. We must therefore reject the Petitioner's contention that this inherent responsibility vests WEWS with substantial control over all performers appearing on its frequency. The record is clear that WEWS punishes infractions of its broadcasting rules with sanc- tions against the agencies, not against the talent. To be sure, the analogy between this situation and conditions en- countered in certain other industries, urged by our dissenting col- leagues, is not entirely inapposite. The difference in degree, however, is so great as to make the alleged precedent meaningless. For ex- ample, the Board includes leased department employees in broad, store-wide units only when it appears that, although they are hired and paid by another company, their working conditions in°s> th,mat- ters as hours, rates of pay, indirect benefits, and even tenure are de- termined and varied by the store itself.' Indeed, when those aspects of their working conditions are controlled by the store to a lesser degree, the Board has refused to include them in the same unit with the store's direct employees.5 Similarly, in the other cases' cited in the dissenting opinion, the indirect employer in effect controls those terms and conditions of employment which primarily inspire self- organization among the disputed employees. Here, instead, the sta- tion's interest in agency programs is entirely unrelated to the work- ing conditions of the free lance performers. In terms of interests in employment, therefore, its control over these employees is practically nil. That, and the provisions of the statute we administer, is what compels our conclusion, rather-`'than the appealing policy,:ciaii ider- ations which induce our colleagues to urge a special rule for the tele- vision industry. Nor is the Board's recent divided opinion-in American Broadcast- ing Company 6 determinative of the issue here. Indeed, that case does not establish Board precedent, for the unit, to the extent that it joined all talent appearing on network television shows, was created by agreement among the parties. In any event, there the pertinent facts were significantly different from those in this case. For example, substantially all talent in those broadcasting areas was included in the unit; the major advertising agencies participated in the contract negotiations; and all the major television networks were joined in multiemployer bargaining. -And most- important, the netwo k broad- Franklin Simon & Company, Inc., 94 NLRB 576. Charles of the Ritz Operating Corporation, 96 NLRB 809; Pariseau's Incorporated, et al., 90 NLRB 1458; Maas Brothers, Inc., 88 NLRB 129. 96 NLRB 815. (Member Murdock dissented ; Chairman Herzog and Member Peterson did not participate.) SCRIPPS-HOWARD RADIO, INC. 297 casters had, in radio, already established a substantial and successful bargaining history with radio talent unions, which was carried over into the network television field-a bargaining history upon which the network unit was based.7 Accordingly, as, station WEWS does not exercise substantial con- trol over the conditions of employment of free-lance talent, we find that such employees are not employees of the Employer, and we there- fore exclude them from the bargaining unit in this case.8 It has been administratively determined that the Petitioner made a sufficient showing of interest only in the broad, all inclusive unit it requested which we find inappropriate, and that its showing among the staff announcers employed by the Employer is insufficient to war- rant holding a representation election at this time. We must there- fore dismiss the petition. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. MEMBERS HOUSTON and STYLES, dissenting : This case presents a difficult and basic problem arising in one of America's newest, most important industries. Television's mushroom growth, in the fields of manufacture, installation, maintenance, and programing, has altered the social, cultural, and scenic horizons of America. To the labor relations of one of the most important groups of employees in this new industry, its actors and performers, a major- ity of the Board has applied old tests and standards, and has failed to fit a living law to the manifest needs of the case. Through the union of their choice, the performers who present the programs televised over WEWS, a Cleveland television station, turn to the administrative process established by the Act for assistance in their desire to engage in collective bargaining. As accurately ex- plained in the majority opinion, the extraordinary conditions existing in this industry have brought about unusual, shifting, and confusing employer-employee relationships between the talent group and the nu- merous advertising agencies which, through WEWS, furnish many T Past bargaining for radio and television talent in the Cleveland area does not support TvA's position in this case , because it reveals no consistent pattern . The Petitioner rep- resents talent at the five principal radio stations . At two the unit is limited to talent on the station 's payroll ; at two others the unit includes all persons appearing before the microphones "whether [employed ] directly or indirectly through agencies or sponsors"; and at the last, TvA represents all talent "performing at" the radio station . At station WNBK, the only organized television station in Cleveland , the unit is composed of an- nouncers "employed by the Company . . . without prejudice to a claim that the unit be broader in scope." El Murdo Broadcasting Corp., 97 NLRB 1255 ; see, also, Colgate Palmolive Peet Co., 96 NLRB 311. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commercial programs to the public. Because these special conditions, peculiar to the television industry, do not conform with the familiar type of employer-employee relationship ordinarily found in other in- dustries, the majority denies the performers any opportunity to enjoy the collective bargaining procedures which the Act was designed to en- courage. We disagree with this approach to the problem. All performers, whether direct employees of WEWS or not, work in its studio, and all are subject in equal measure to most of the rules and regulations enforced by the station owner. Unquestionably, those who are hired and paid directly by advertising agencies are less subject to station control than those who work only for the station. But differences in the degree of control exercised by the named em- ployer, here the station operator, have not heretofore prevented in- clusion, in a unit certified to such an employer, of employees whose initial employee relationship is with other companies and individuals. The Board has long recognized that in certain situations a limited- de- gree of control suffices to establish a basis for collective bargaining. In a number of industries the Board has minimized such normal in- dicia of the employer-employee relationship as the power to hire and discharge, to regulate pay and hours, to give detailed and direct su- pervision, and to fix other working conditions. For these accepted criteria, it has substituted less tangible factors-the ultimate and in- direct control inherent in ownership of premises, equipment, and business.', In a broader sense, although no less relevant, our frequent rejection of independent contractor assertions shows a realistic disregard of su- perficial and technical employer-employee relationship, and recogni- tion of the fact that control over any group of employees is sufficient ground upon which to predicate collective bargaining 10 In view of these precedents, the fact that for certain televised programs adver- tising agencies instead of the station operator hire and pay the talent, is no impediment to joining all the performers in a single unit certified to the station. Considering the unusual characteristics of the television industry in this light, we believe that the record here shows sufficient control by the station operator to justify collective bargaining between WENS and all the actors who work in its studios. The station's power to exclude particular performers," its duty to supervise their artistic per- formance through the station director, its direct payment, on behalf of the agencies, to some free lancers for studio work, and the occa, + Stack tt Company, 97 NLRB 1492 (leased department employees in department store) Central Packing Company, 95 NLRB 19 ( Schoctim working in packinghouse) ; Van Schaack,& Co., 95 NLRB 1028 (building employees hired by management company). "J. G. Howard Lumber Co., 93 NLRB 1230 ; Shelf Oil Company, 90 NLRB 371. "The record shows that WEWS follows a policy under which it forbids the use of its facilities to any "known Communist." SCRIPPS-HOWARD RADIO, INC. 299 sional use, by advertising agencies of the Employer's own staff an- nouncers, directly support our view. Our conclusion does not rest on these facts alone, however. We deem it highly significant that while there may exist a more direct and substantial employer-employee rela- tionship between some of the actors and other employers, this other relationship is so short-lived and ever shifting as to be of no value whatever for collective bargaining purposes. There are about 50 ad- vertising agencies in the Cleveland area alone. The number of spon- sors is, of course, completely unknown; every manufacturer, mer- chandiser, or even propaganda group is a potential, if not an actual, sponsor of the moment. Actors are hired for single appearances on several programs. Their tenure with a single agency or sponsor will vary from as long as 13 to 26 weeks to as little as 15 minutes or less. It is impossible to see how any bargaining unit could be established on the basis of such ever-changing and illusive relationships. More- over, advertising agencies are themselves agents of sponsors which, either directly or through the agencies, bear the final burden of pay- ment for talent services. Are free lance performers to look to mer- chandising companies, manufacturers, or perhaps political groups which utilize their talents, for collective bargaining? 12 Viewed in this light, this case requires us to decide which one of the various "employers" most regularly deals with the performers collectively as a talent pool of individuals, and therefore offers the most acceptable basis for their bargaining unit. It is the absence of any other more fixed employer relationship which makes the measure of control found here more persuasive than it might be in other industries. In the end, it is the similarity and interests in working conditions which always underlie the Board's unit findings. Although the actors who perform before the television cameras of WEWS may not all receive their pay checks from the same hands, or sell their services to the same casting office, all of them do the same work under the same roof, all possess and exercise the same skills and talents, all must meet the same technical and social standards before the public, and, because of the peculiarities of the television business, all necessarily work the same odd hours. - That all actors who perform at the same television station or stations may appropriately be joined in a single bargaining unit despite the lack of conventional employer-employee relationships, was recognized by the Board in its recent American Broadcasting Company decisionl$ No claim could be made that the roving talent in the Cleveland area is in a different position from that in large cities like New York, Chi- "The record before the Board in American Broadcasting Company, et al., 96 NLRB 815, showed that of all performers appearing on network television programs, 80 percent falls into the disputed category with which we are here concerned. 13 Supra. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cago, or Los Angeles. If Cleveland free lancers may not be deemed employees of the television stations, no more so could those who are brought by advertising agencies to act before the cameras of the major networks. The Board's direction of election there is not rendered meaningless because all parties were in agreement; the Board has no power to certify a union on behalf of workers who are not "employees" as defined in the Act. We cannot agree with the majority that the two cases are in any substantial sense distinguishable. It is poor solace to the free lance performers in the Cleveland area to suggest, as the majority appears to do in distinguishing the stipulated network-wide unit from a single station unit, that if all the television stations in Cleveland agree to bargain jointly, and if all advertising agencies and sponsors are will- ing, in some manner, to collaborate with all the stations in contract negotiations, the entire Cleveland talent pool may enjoy the benefits of collective bargaining. Considering the ease with which any single station operator could withdraw from the group, if only out of pique, such a bargaining right would indeed be illusory at best. Collective bargaining which exists by the grace of one of the parties is no bar- gaining at all. Rather, the Board was justified in reaching its American Broadcast- ing Company decision because the record in that case, like that before us now, showed convincingly that collective bargaining on behalf of the talent pool could and did work successfully on the basis here urged by the same union. Codes of fair practice, applicable to the largest segments of the industry, have been negotiated and are now in effect. There is no suggestion that this method of bargaining, evolved by those most intimately familiar with the special problems of the industry, have produced anything but stability and peace in the field. American Broadcasting Company merely recognized that the distinctive employment conditions which characterize the tele- vision field-transitory employment relationships on a program-to- program basis, and the existence of a large free-lance pool of talent- preclude establishment of any unit governed by conventional factors. It is clear that if conventional employer-employee relationships are made the determinant in this industry, no unit will survive one pro- gram or, at best, a series of programs lasting throughout a broadcast season. We see no reason why the factors recognized by the Board in that case should here be ignored. We are convinced that if television actors and performers-few of whom are celebrated, high-salaried -stars-are, like other employees, to be protected in their right to organize and to enjoy the fruits of collective bargaining, the Board must recognize that an acceptable basis for their association must be the one place where their common interests converge-the broadcasting station itself. It is there that LONGVIEW FURNI1tTRE COMPANY 301 their efforts and work are centered. It is there that the various em- ployers--station, agencies, and sponsors-cooperate to produce the programs which are the sole objective of their various contributions. Of all these "employers," the only one who is permanent, indispensable, and ultimately responsible for the end-product, is the station operator. We-would, therefore, join the free lance performers with the, other employees of station WEWS and direct an election in the Petitioner's requested unit. In reaching this conclusion, we are particularly mindful that the stated policy of the Act is to encourage "the prac- tice and procedure of collective bargaining," and to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives ... , for the purpose of negotiat- ing the terms and conditions of their employment 16 . . . " A sterile adherence to form and precedent here frustrates these objectives. 14 Section 1 of the Labor Management Relations Act, 1947. IANOvIEW FURNITURE COMPANY and UNITED FURNITURE WORKERS OF. AMERIOA, CIO. Case No. 14-CA-246. July 22,1952 Decision and Order On March 8, 1951, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel also filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. We unanimously find, in agreement with the Trial Examiner, that the Respondent has violated Section 8 (a) (1) of the Act. In so find- ing, we rely on the following conduct of the Respondent found to be unlawful by the Trial Examiner : (a) The interrogations by Superintendent Council and Foremen Frye, Teague, Robinson, and Martin of employees concerning their union views, membership, and activities, and concerning the demands they would make when organized. 100 NLRB No. 43.