Hampton Roads Broadcasting Corp.

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will be further recommended that the allegations of the complaint that the Respondent Company refused sickness pay to Adrian Hampton for the month of February 1951, in violation of Section 8 (a) (3) of the Act, be dismissed. Since it has been found that the Respondent Trustees have not engaged in unfair labor practices , the undersigned will recommend that the allegations of the complaint with respect to them, be dismissed. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CoNcLusIoNs OF LAW 1. Beet Sugar Refinery Employees Federal Labor Union No. 24792 , affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interrogating an employee regarding his union sympathies , by threaten- ing an employee with reprisal if he persisted in his unionization efforts, and by otherwise interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaged in, unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and ( 7) of the Act. 4. By laying off Charles A. Ransom, Harold W . Gayman, Merlin Durrant, S. R. Jensen, J. B. Dursteler, Daniel Johnson, and Frank Van Fleet, the Respondent Company did not violate the Act. 5. By not giving Adrian Hampton sickness pay for the month of February 1951, the Respondent Company did not violate the Act. 6. Respondent Trustees did not violate the Act as alleged in the complaint. [Recommendations omitted from publication in this volume.] HAMPTON ROADS BROADCASTING CORPORATION (WGH) and AMERICAN FEDERATION OF RADIO ARTISTS, AFL, PETITIONER. Case No. 5-RC- 969. July 15,1952 Supplemental Decision and Second Direction of Election On April 4, 1952, the Board issued a Decision and Direction of Election 1 in the above-entitled case in which a majority of the Board rejected the Petitioner's request for a unit confined to all employees appearing before the microphone and found that the sole appropriate unit was one encompassing all employees engaged in announcing and programing duties. Member Styles dissented in a separate opinion on the ground that the unit confined to the employees appearing before the microphone was also appropriate. Member Peterson did not participate in that decision. 1 98 NLRB,1090. 100 NLRB No. 1. HAMPTON ROADS BROADCASTING CORPORATION (WGH) 239 Thereafter, the Petitioner filed a motion for reconsideration of the Board's Decision insofar as it held that the exclusion of the four traffic and continuity employees, none of whom regularly or frequently ap- peared before the microphone, would render inappropriate a unit of announcing employees. It also requested an opportunity to argue orally before the Board. On May 22, 1952, oral argument was had before the full Board at Washington, D. C., and all parties participated in the argument. Upon reconsideration, the Board now finds that a unit confined to all the employees who regularly or frequently appear before the micro- phone is appropriate for collective bargaining purposes. As pointed out in Member Styles' original dissenting opinion, in appearing before the microphone these employees ... perform a kind of work, requiring a kind of talent, ex- perience, and background which is distinguishable from that of the other program employees, and which gives rise to interests in the terms and conditions of employment which are sufficiently different from those of other employees to warrant separate rep- resentation for collective bargaining. Voice, diction, personality, the ability to persuade through the spoken word-these are the tests by which announcers are judged, and these are qualifications " wholly unrelated to the jobs performed by . . . others. These special and highly individualistic qualifications necessarily serve to distinguish [those who appear before the microphone] from other employees .. . These are- the considerations which underlie the Board' s findings that when an employee regularly appears before the microphone, it is that factor, alone, and not his other duties, which gives rise to the community of interest which warrants his inclusion in the announcers' unit 2 And, as conceded in the original majority opinion, such units have been found appropriate by the Board "in numerous cases in the past." We believe that the ,same considerations are present and call for the same finding in the case of employees who frequently appear before the microphone. For all the foregoing reasons, we are per- suaded that employees who regularly or frequently appear before the microphone constitute a homogeneous, readily identifiable cohesive group appropriate as a unit for collective bargaining. 2 See, e. g., Radio Station KHMO, 97 NLRB 1026 ( John Golden, included, despite the contrary agreement of the parties , because he "announces a 15-minute program five days weekly") ; WWEZ Radio Inc., 91 NLRB 1518, 1519 ("Although this employee spends the greater part of his time in other special duties for the Employer , as he does regularly spend a portion of his working time as announcer , we shall include him in the unit") ; Miami Valley Broadcasting Corp ., 70 NLRB 1015, 1019 (with respect to a typist and commercial continuity writer who appeared on a 15 -minute program 5 days a week, the Board held : "We find that she too performs the functions of a professional announcer and shall include her in the unit." 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Our establishment of such a unit does not run counter to those which the Board has found appropriate in the Delaware and Westchester cases,s. cited in the original opinion. We do not hold that a unit of all programing department employees would in all circumstances be inappropriate. Either may be appropriate depending on the specific, facts of each case. While the technical description of the units in the foregoing cases differs substantially from the formulation adopted here, it should be observed that in each of those cases all employees included in the unit did in fact regularly appear before the micro- phone and none therefore would be excluded from the unit under our. present decision.' We shall therefore amend the original unit to exclude the continuity' and traffic employees Ryan, Brown, Hilbert, Tolbert, and Greve, as none of them regularly or frequently appears before the micro- phone. In all other respects, we reaffirm the original decision. Accordingly, we find that all employees who regularly or frequently appear before the microphone at the Employer's Radio Station WGH, Newport News and N orfolk, Virginia, including commentators, staff and special program announcers, sports and news reporters or an- alysts, but excluding the continuity and traffic employees (Ryan, Brown, Hilbert, Tolbert, and Greve), engineers, salesmen, janitors, the bookkeeper, the choir director, the commercial manager, the chief an- nouncer, the program director, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Second Direction of Election omitted from publication in this volume.] CHAIRMAN HERZOG and MEMBER MIIRDOCH, dissenting : The reversal of the original published decision in this case neces- sarily, we believe, gives controlling weight to the desires of the pe- titioning union in determining the issue of the appropriate collective bargaining unit. It does this without due regard to the mandate in the amended Act against giving controlling effect to the union's ex- tent of organization; or to the Board's established standards for de- lineating appropriate units; or even to the need for providing a rea- sonable and workable basis for bargaining in the broadcasting indus- tries. - The present majority now holds that "a unit confined to 'all the- employees who regularly or frequently appear before the microphone 8 Delaware Broadcasting Company, 82 NLRB 727 ; Westchester Broadcasting Corpora- tion, 93 NLRB 1346. 4 We do of course reject , as indeed the original opinion has in effect done , the broad dictum in the Westchester case that we would always find appropriate only a unit includ- ing all programing department employees. HAMPTON ROADS BROADCASTING CORPORATION (WGH) 241 is appropriate for collective bargaining purposes." (Emphasis added:) But in the original decision herein, neither the dissent nor the majority considered or even discussed the element of "regularity or frequency" in performing the broadcasting function as a test of the appropriateness of the unit. Such a basis for establishing a bar- gaining unit was suggested for the first time in this case in the oral argument heard by the Board after the Petitioner requested recon- sideration of the original decision. There the Petitioner asserted a unit, now found appropriate by the Board majority, as representing its present national jurisdictional policy .5 Perhaps, indeed, if all the parties herein had been prepared to litigate at the hearing the question of the unit as defined in the present majority opinion, the Employer could and would have established the element of "regularity or fre- quency" in the broadcasting functions of some or all of the disputed individuals 6. Considering the issue on its merits, we make these observations : 1. It appears that our colleagues have found a unique collective bargaining unit. In it are included all employees regardless of whether they might primarily function as announcers, typists, sales- men, engineers, or continuity writers, upon satisfying the sole requi- site that they "regularly or frequently appear before the microphone." And what do our colleagues deem sufficient to satisfy the requirement of "regularity or frequency ?" Ten minutes a week ! 7 Yet the con- tinuity and traffic employees here in dispute, whose duties and inter- ests are inextricably bound with those of the other programming employees in the unit, but who only appear sporadically before the microphone, are to be excluded from the unit and to remain unrepresented. 2. Turning to all the employees who would be embraced in the unit by reason of their "regular or frequent" appearances before the micro- phone, the Petitioner informs the Board that its policy is to represent such employees for 100 percent of their working time. If this is 5 No such issue, of course, was involved in Emil Denemark, Inc., 98 NLRB 1089, cited by the Petitioner in the oral argument as support for its asserted jurisdictional policy. There, the test of "frequency or regularity " was used , as it customarily is by the Board, merely in finding that certain employees were ineligible to vote. We submit that only in respect to eligibility questions should such a test be used here. 9 We are not aware that the Petitioner , or any other union, has in the past ever re- quested such a unit in decided cases. Indeed, as was shown in the original majority de- cision ,' the Petitioner has in other Board cases requested that units include nonper- formers. Nor is there any assurance that the Petitioner will not in the future depart from its asserted jurisdictional policy and seek a still differently composed unit, after realizing the full effect of the present determination , or the exigencies of other cases. 7In Westchester Broadcasting Corporation, 93 NLRB 1346 , the record shows that Catherine H. Ocskasy "performs before the microphone approximately ten minutes per week for which she spends no time in preparation ." It is clear that in that case Ocskasy was included in the unit because of her interests as a programing employee ("in filing musical library index cards and typing out musical programs ",) and not because of-the insignificant amount of time she spent on the air. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sanctioned, it would create serious confusion in employee representa- tion in the broadcasting industries. Thus, once other unions in the field seek to represent the same employees with regard to the major por- tion of their working time, in functions such as engineering, writing, selling, playing a musical instrument, or performing clerical duties, the employer would be faced with a multitude of conflicting claims. More- over, if employees' inclusion in the bargaining unit is made to turn upon such a test of "regularity or frequency" of the broadcasting func- tion, the,composition of the unit in small stations, such as this one, would be subject to frequent fluctuation and could, indeed, be consider- ably controlled by the employer. In other cases; the Board's rule is, of course, that employees who per- form duties within the coverage of the bargaining unit for only a frac- tion of their working time are included in the unit only for that portion of their time.8 If the customary rule were applied here, the employees in the unit who do appear before the microphone 10 minutes a week would be represented by the certified union for only 10 minutes a week; and for the remaining 39 hours and 50 minutes of a 40-hour week, they would either remain unrepresented, or would be represented for part or all of that time by one or more other unions. Under either alternative, the practical problems which would confront the employer and other unions in the field, would be well-nigh insoluble. 3. The original dissenting opinion in this case, now reversed, which is adopted and relied upon by the present majority, would have held appropriate the unit then sought by the Petitioner, consisting of an- nouncers and excluding certain other programing employees in dispute. The original Board majority there found that the distinct interests of the announcers, as revealed in the record in this case, had not been demonstrated to be sufficient to permit the representation of the an- nouncers apart from the other programing employees. They held that no justification for such restricted representation had been established on the basis of the customary Board criteria, such as craft or depart- mental factors. Particularly in view of the clear evidence of the inter- changeability of functions and the multiplicity of duties among each of the employees in this small, compact, and highly integrated radio station, the original decision concluded that the sole feasible and ap- propriate grouping for collective bargaining was in a unit which in- cluded all programing employees. To have granted the Petitioner's requested unit, excluding the programing employees in dispute, the Board originally held, would have accorded controlling effect to the extent to which the Petitioner had organized the employer's employees, contrary to the express provisions of Section 9 (c) (5) of the amended Act. I See The Ocala Star Banner, 97 NLRB 384. HAMPTON ROADS BROADCASTING CORPORATION (WGH) 243 The altered unit held appropriate by the present majority seems to us to provide an even more flagrant .example of predicating a unit finding upon "extent of organization." For with the newly injected element of "regularity or frequency" of the broadcasting function, there is much less basis than before for a finding of distinct common interests to support the majority's unit grouping, which contains less than all of the programing employees. Thus, in future broad- casting cases such a unit could contain, in addition to announcers, typists, receptionists, salesmen, engineers, and continuity and traffic employees who appear before the microphone "regularly or fre- quently," within the broad and flexible meaning of that term. And all of these employees would be represented for all their time. Our colleagues suggest that a showing of distinct interests on the part of these employees encompassed in their unit finding is provided by : "voice, diction, personality and ability to persuade through the spoken word." But such attributes have never before been held to identify a profession, or a craft, or to support a Board policy for separate representation. Indeed, as has been shown, many broadcast- ing employees whose primary functions do not require these attributes at all can now qualify for inclusion in the unit, if they merely "appear before the microphone" for as little as 10 minutes a week. Further- more, as the record clearly reveals in this case, true classifications and departments do not exist; employees are hired expressly to perform, and they do perform, a multitude of functions; and most, but not all, employees do make occasional appearances before the microphone. We believe, therefore, that there is little substance to the assertion that the employees who "appear before the microphone regularly or frequently" have distinct interests apart from the other employees who do not so qualify. 4. Even assuming, however, the existence of distinct interests, or even a craft,9 with respect to those employees who "appear before the microphone," we would in the circumstances of this case still find appropriate only a unit of all programing employees. For we are impressed by the very small proportion of time spent before the micro- phone by the station employees, and by the division of functions and 9 Of course, our colleagues have not found a "craft" here. In its letter requesting reconsideration of the original decision herein, the Petitioner argued that the decision, if upheld, would alter the entire nature of its organization and that "the Board will be dictating that an established craft union must become an industrial union." Me note that no such request or argument was made by the Petitioner in the Westchester case, in which even broader language was used than the Board was willing to adopt in the original Hampton Roads decision. In the Westchester case the unit found appropriate , which included certain programing employees together with the announcers, was substantially as requested by the Petitioner itself We note further that the Petitioner concedes that it has a substantial number of members who are not performers , and that it will even admit clericals to membership. (See transcripts of WTAR Radio Corporation, 5-RC-972, and of the oral argument on May 22, 1952.) 227260-53-vol 100-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the high degree of integration demonstrated here-among all the em- ployees engaged in programing operations.- 5. The present unit finding in the case is wholly inconsistent with the existing precedents, which were relied upon in the original de- cisions 11 Our colleagues now attempt to reconcile these cases with the observation that the disputed employees included in the units there did in fact appear "regularly or frequently" before the microphones. But such a unit as is now found here was not in issue in those cases. The disputed employees there were included with the other employees in the unit because of their community of interests as programing employees, and not because they, like many of the miscellaneous station employees, spent some small portion of their time on the air. The Westchester case is entirely clear on the point : Developing and scheduling programs, writing continuity, and soliciting appearances on station programs are all activities which are closely related to the actual broadcast, and are as necessary to it as the station announcements and other activities actually performed before the microphone 2 As even the staff announcers spend substantial portions of their time in activities preparatory to broadcasting, we are satisfied that a unit consisting of an- nouncers and others engaged in program preparation constitutes a homogeneous and cohesive group, without regard to the portion of their time spent in actual announcing, or whether some may in fact do no announcing at all. (Emphasis added.) 2 Miami Valley Broadcasting Corporation, 70 NLRB 1015; West Central Broadcast- ing Company, 77 NLRB 866; Delaware Broadcasting Company, 82 NLRB 727; and Ridson, Inc., 91 NLRB No. 59. WWDZ Radio, Inc., 91 NLRB 1518, and Badger Broadcasting Co., 92 NLRB No. 161 , to the extent that they are inconsistent herewith, are hereby overruled. We would not alter the unit originally found appropriate in this case. Sympathy with the Petitioner's objectives as set forth at oral argument is not enough to induce us to join in a departure from precedent which 'is so sharp and so fraught with serious practical consequences for the broadcasting industries. to Cf. National Tube Company, 96 NLRB 1199. n E. g., Westchester Broadcasting Company, 93 NLRB 1346, supra; Delaware Broad- casting Company, 82 NLRB 727, and cases cited therein. NORFOLK BROADCASTING CORPORATION (WNOR) and AMERICAN FED- ERATION OF RADIO ARTISTS, AFL, PETITIONER. Case No. 5-RC-970. July 15,1952 Supplemental Decision and Second Direction of Election On April 4, 1952, the Board issued a Decision and Direction of Election in the above-entitled case in which a majority of the Board 100 NLRB No. 2.