National Broadcasting Co., Inc.

NATIONAL BROADCASTING COMPANY, INC. 587 NATIONAL BROADCASTING COMPANY, INC., COLUMBIA BROADCASTING SYSTEM, INC., AMERICAN BROADCAST- ING COMPANY, INC.,1 and TELEVISION WRITERS OF AMERICA, L Petitioner NATIONAL BROADCASTING COMPANY, INC., COLUMBIA BROADCASTING SYSTEM, INC., AMERICAN BROADCAST- ING COMPANY, INC. and TELEVISION WRITERS OF AMERICA, Petitioner AMERICAN BROADCASTING COMPANY, INC., COLUMBIA BROADCASTING SYSTEM, INC., NATIONAL BROADCAST- ING COMPANY, INC. and AUTHOR'S LEAGUE OF AMER- ICA, 9 Petitioner McCADDEN CORPORATION' and TELEVISION WRITERS OF AMERICA, Petitioner . Cases Nos . 21-RC-2782, 21-RC-2791, 21-RC-2872, and 21-RC-2849. April 30, 1953 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearings 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 these cases, the Board finds:` 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employers. ALA intervened on behalf of itself and the Screen Writers Guild in each of the cases brought by TWA, and TWA intervened in the case brought by ALA. 3. A question affecting commerce exists 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. ALA, as Intervenor in Cases Nos. 21-RC-2782 and 21-RC- 2791, and the Employers named therein contend that there is a validly executed contract between ALA and the Employers of September 24, 1952, which constitutes a bar to any election at this time in the unit covered by the contract.' However, 1 Herein referred to as NBC, CBS, and ABC, respectively, and as the Networks , collec- tively. The name of each appears as amended at the hearing. 2 Herein referred to as TWA. 3 Herein referred to as ALA. ALA filed its petition on behalf of itself and the Screen Writers Guild. 4 Herein called McCadden. The name appears as amended at the hearing. `Case No. 21-RC-2847, which was heard together with the above cases, was severed from them by the Board and was remanded for further hearing. 6 The request for oral argument by ALA, NBC, CBS, and ABC is hereby denied, as the record and briefs of the parties adequately present the issues and positions of the parties. 7 ALA took the further position that if the contract were found to be a bar , it would not desire that an election be held pursuant to this petition in Case No. 21-RC-2872. 104 NLRB No. 72. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find that this contract is not a bar because its purported effective date, • October 16 , 1952 , occurred after October 10, 1952, the date of filing of the petition in Case No . 21-RC-2782 and the date of the claim to representation in Case No. 21.- RC-2791, which was followed within 10 days thereafter by the filing of the petition in that case.9 4. The appropriate units: a. The Networks unit (Cases Nos . 21-RC-2782, 2791, and 2872) The Networks own and operate a number of television broad- casting stations throughout the country , including three in the Los Angeles area. All these stations broadcastprograms which either " originate " locally," or originate elsewhere (princi- pally in New York City, Chicago, or Los Angeles ) and are transmitted to the local station from the point of origin, Other independent stations also broadcast some of the programs originating on a Networks station. Some of the programs originated by the Networks are produced by them, others are produced by independent producers , sponsors, or advertising agencies . The place of production of a program does not always correspond to the place of its origin, Programs which are carried simultaneously by the originating station and one or more additional stations are called "net- work programs." " Syndicated programs," which are usually on film, although designed to be broadcast over more than one station, are not carried simultaneously by such stations but are broadcast by one station at a time. In Cases Nos. 21-RC-2782 and 21-RC-2791 , TWA seeks a unit of free -lance television writers employed by the Networks for television programs, live or film, produced in Los Angeles County, California , regardless of the place of origin of such programs. ALA and the Networks contend that this unit is inappropriate and the Networks agree with ALA that the unit sought by ALA in Case No. 21-RC-2872 is appropriate. This unit would include free-lance writers and composers who are employed by the Networks or by advertising agencies princi- pally in the writing of literary material or the composition of original musical material for network television programs broadcast by the Networks originating in New York , Chicago, or Los Angeles , and for all syndicated programs regardless of the point of origin which are broadcast by the Networks stations. The Networks also contend , contrary to TWA, that if a local unit is found appropriate , it should include free-lance • Upon receipt of TWA's petition in Case No . 21-RC- 2782, the Networks advised ALA that, in view of the filing of the petition, they would not give effect to the contract, and no effect has been given thereto by the parties. •See Desoto Creamery and Produce Company, 94 NLRB 1627, and Mississippi Lime Company of Missouri, 71 NLRB 472, and cases cited therein. We find it unnecessary to con- sider other arguments advanced by TWA in support of its position that the contract is not a bar. 10 I.e., are initially put on the air by the local Networks station. NATIONAL BROADCASTING COMPANY, INC. 589 writers for all seven television stations in Los Angeles. Both Petitioners and the Networks would exclude from the unit staff writers and composers and any other writers and composers who do not fall within the agreed definition of free- lance writers and composers.", The following are the principal issues raised by the unit positions of the parties: (1) Whether a local Los Angeles unit or a nationwide unit is appropriate in this case. (2) Whether free-lance writers who write for all telecasts or only those writing for network and syndicated shows should be included in the appropriate unit. (3) Whether the unit should be confined to employees of the Networks or should include employees of advertising agencies as well. (4) Whether the unit should include writers only or writers and composers. All parties are agreed that in whatever way these issues are resolved, no distinction should be made between writers employed for live, film, or kinescope shows. (1) ALA and the Networks contend that a nationwide, rather than a local, unit is appropriate because the Networks' operations are integrated, with centralized control over nation- wide operations, including labor relations, in New York; collective bargaining in the industry has been nationwide; the skills, techniques, and working conditions of the employees sought are unaffected by their geographical location; there is considerable movement of these employees from one area to another. On the other hand, TWA contends that a unit of the Networks' free-lance writers who write for programs pro- duced in Los Angeles County is appropriate because writers must live and work in the areas where their shows are pro- duced; there are very few temporary transfers of writers from one geographical area to another; markets and writer- agent relationships vary regionally; there is wide geographical separation between New York, Chicago, and Los Angeles, the principal locations from which the Networks' broadcasts orig- inate;' collective-bargaining history for writers has been regional ; the local stations of the Networks in Los Angeles have local autonomy. - There is substantial integration in the operations of the system of each network. The record reveals that the principal offices of each network, which are located in New York City, exercise close control over all operations , including those "The free-lance writers are defined by the parties as follows: "A free-lance writer is one who is employed by the company under an express oral or written contract to render writing services in the creation and/or preparation of material for a specific program or program series, and as to whom the company has a contractual right to direct the performance of personal services by said writer in making revisions , modifications or changes in such material. As distinguished from a staff writer, the free-lance writer cannot be assigned to any writing services not covered by his individual contract of employment ; the staff writer may be assigned to any writing services or any program or programs , in the sole discretion of the company." Free-lance composers, sought by ALA, are composers who render their services in a similar fashion. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Los Angeles. Program budgets and other financial matters require approval from New York. All music for broadcast must be cleared with New York. Program continuity policies, which establish standards of good taste for television pro- grams, are determined in New York, and local stations must conform therewith. Local labor matters may be negotiated at the local level, but field attorneys and negotiators are bound by policies and instructions established in New York, and all agreements must be approved by New York. All agreements covering free-lance employees on network programs, including the October 1952 writers' contract, have been negotiated and executed in New York. Moreover, that contract, which is the only contract ever negotiated for the employees sought in the present cases, embraced a nationwide, multiemployer unit. A number of other collective-bargaining agreements were introduced at the hear- ing covering other types of free-lance employees in the radio and television industry on a national, multiemployer basis. Thus, free-lance television "talent" employees (which includes actors, disc jockeys, an'iouncers , sports announcers, and other television performers of all kinds, except musicians, employed on all live network television programs originating in New York, Chicago, and Los Angeles) have been covered by national, multiemployer contracts with the Networks and others since November 1950. Such a unit was found appropriate by the Board." Free-lance television directors employed by the Networks on network programs originating in New York and Los Angeles are covered by a contract extending until March 31, 1954. Free-lance writers in radio are covered by two multi- employer collective-bargaining agreements , one of which embraces in a nationwide unit such writers employed, by the Networks and the Mutual Broadcasting System. Other national, multiemployer contracts cover free-lance radio artists em- ployed by the Networks on network shows and free-lance radio directors employed on live AM radio network broad- casts. 11 The only evidence adduced of local bargaining in the industry related to a multiemployer agreement covering free-lance performers employed on local live shows by the 7 Los Angeles television stations ,, including the 3 owned by the Networks,u and an agreement covering free-lance writers of a group of independent television film producers operating in the Hollywood area, which was in process of negotiation at the time of the hearing.15 However, there was no evidence 12 American Broadcasting Company, Inc. et al ., 96 NLRB 815. 13 There are other national bargaining agreements in radio and television covering em- ployees other than free-lance employees. 14 There was no evidence that any of the other four stations employ free - lance'writers. 15 No one seeks in these cases to represent free -lance writers employed by any independent television film producers. NATIONAL BROADCASTING COMPANY, INC. 591 of any local bargaining history for the specific unit of em- ployees sought by TWA. 16 A number of writers were called by both Petitioners to testify with respect to their working conditions . There was practically unanimous agreement among them that their techniques and skills were the same regardless of the place where they were writing or the place of production or origin of the program . While the presence of the writer is usually desired at the place of production for the purpose of making script changes and revisions found necessary by the producer or director , the place of production may be changed temporarily, in which case the writers may be required to accompany the show to the new place of production. Most writers testified that working conditions were generally the same, regardless of where they wrote or the place of production of what they wrote . The only substantial differences cited were in market conditions between New York, Chicago, and Los Angeles and in the relationship between writers and agents . i' The record shows that there has been considerable movement around the country by the writers , which is attributable, at least in part, to the transitory nature of the employment relationships between free -lance writers and their employers . Typically, many writers work for employers on an individual show basis,"' and they may work for a number of employers in a number of locations over a period of years. , L In view of the integration and centralized control of the Networks' operations , the similarity of the skills , techniques, and duties of the writers sought , the degree of mobility of the writers, and the extensive collective -bargaining history on a systemwide , multiemployer basis, for other free-lance em- ployees in the industry and for similar employees in radio, we find that the Los Angeles unit sought by TWA is inappro- priate because too limited in scope and that a systemwide, multierriployer unit is appropriate.'9 (2)'AL)V' and the Networks would include in the unit only free-lance writers employed on network and syndicated pro- grams, while TWA would include free -lance writers employed on local programs as well. m As already stated , network and syndicated programs are broadcast by more than one station, the broadcasts being simultaneous in the case of network is TWA contends that the existence of two regional administrative councils, one covering writers east, and the other west , of the Mississippi River, established by ALA'indicatesna history of regional bargaining and an admission of the inappropriateness of a national Unit. it It was suggested that the difference might be a result of local laws governing such relationship. i8 However, not all free-lance writers are employed on this basis . Some work under contracts, typically of 13 weeks' duration or a multiple thereof, with options for renewal. Contracts of this type are found generally among writers working on comedy and variety shows involving a particular star performer or set of star performers and serial programs involving a constant set of characters and a continuing story line. is in view of our decision below to exclude composers from the unit, it is unnecessary to consider them in this discussion. m TWA'took this position with respect to the unit confined to Los Angeles which it sought. It did not state its position with respect to this issue in the event that a systemwide unit is found appropriate. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD programs. Local programs are broadcast only by the originating station, and' are not relayed to or repeated by other stations. Systemwide collective-bargaining agreements in the industry for free-lance employees and the October 1952 "agreement" covering free-lance writers have been limited in their coverage to employment on network and syndicated broadcasts only. In any event, there is no evidence in the record that any of the Networks at the present time employ any free-lance writers on local programs. Accordingly, we will not at this time pass on the question of the inclusion of such writers in the unit, but shall limit the unit to writers for network and syndicated programs. (3) ALA and the Networks take the position that the appro- priate unit should include free-lance writers employed by unnamed advertising agencies as well as those employed by the Networks, themselves. TWA contended that the unit should be limited to employees of the Networks but stated in its brief, "However TWA does not hold strongly to this position and should the Board find it appropriate to include advertising agencies in the unit, TWA will accept that position." ALA and the Employers contend that the circumstances in the present proceeding are similar to those in American Broad- casting Company, Inc., et al.,n in which the Networks, among others, were named as parties. In that case a majority of the Board found appropriate a unit of "all persons employed as talent on all live network television programs originating in New York, Chicago, and Los Angeles, and broadcast over the network facilities of the Employers." As the dissent in that case pointed out, the unit included the entire pool of free-lance talent employed by the broadcasting networks, advertising agencies , sponsors, and independent package producers. In the instant case , although the unit description in the petition of ALA would have similar broad coverage, ALA stated at the hearing that it seeks employees only of the Networks and of advertising agencies. The record indicates that there is a pool of free-lance writers who are employed by all the television networks, advertising agencies , and independent producers for assign- ments of varying duration. There is no collective-bargaining history for free-lance writers in television other than the abortive contract between ALA and the Networks urged by them herein as a bar. tt While representatives of advertising agencies attended the negotiating sessions culminating in this contract, the agencies were not made parties to the contract, but provision was made in the contract for letters of adherence to be signed by individual agencies desiring to abide by its terms." It would appear therefore that free-lance writers employed by advertising agencies for television shows have not n 96 NLRB 815. At the time of the hearing. an agreement was being concluded covering free-lance writers employed by a group of independent television film producers in the Los Angeles area, not involved in these cases. :s There is no evidence that any agencies have as yet signed letters of adherence. NATIONAL BROADCASTING COMPANY, INC. 593 been bargained for as part of a unit including other free-lance television writers. The absence of such bargaining history distinguishes this case from the American Broadcasting case." Accordingly, we will not include free-lance writers employed by advertising agencies in the unit. As it appears that no party seeks the inclusion of free-lance writers employed by sponsors and other independent package producers, we will also exclude such writers from the unit. (4) ALA and the Employers, contrary to TWA, would include free-lance composers who compose original music for use on network television broadcasts. They contend that constant collaboration 'is required between such composers and the pro- gram writers to insure proper integration of music and script, which makes it imperative that the conditions of their em- ployment be similar, and that each should have identical residual rights in the material they compose and write. TWA contends that there is no greater community of interest between composers and writers than between writers and actors, who are separately represented, and that the skills and techniques of composers differ to a large degree from those of writers. Examination of prior bargaining history reveals that the two agreements covering free-lance writers in the radio field do not provide for inclusion of free-lance composers in the contract units and, apart from the recent abortive agreement between ALA and the three Networks, which includes such composers in the same contract unit with free-lance writers, there was no evidence of any bargaining history for composers, either in radio or television. In view of the dissimilarity in the training and skills of composers and writers, and in view of the bargaining history described above, we find that the composers lack sufficient community of interest with the writers to warrant their inclusion in the same unit with the writers, and we will exclude them. As no one seeks to represent them separately, we will not set up a separate unit of composers at this time. Accordingly, we find that the following unit of employees of the three Networks is appropriate for purposes of collective bargaining within Section 9 (b) of the Act: All free-lance writers who are employed by NBC, CBS, and ABC for the principal purpose of rendering services in the writing of literary material for network television programs originating in New York, Chicago, or Los Angeles or for pro- grams broadcast on a syndicated basis, excluding such writers employed by advertising agencies , by independent television producers, and by sponsors, writers who sell or license rights of use or ownership of literary material without contracting to u See Scripps-Howard Radio, Inc., 100 NLRB 293, where the Board refused to include, in a unit of talent employed on television programs broadcast by the employer's station, em- ployees of sponsors or advertising agencies. In distinguishing the American Broadcasting case, the Board majority indicated that in that case the Board had relied on a history of bargaining in the radio and television industry for a unit comprising free-lance talent employed by advertising agencies as well as by the Networks. There is no evidence of a comparable bargain- ing history for free-lance writers in television or radio. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform personal services in making revisions , modifications, or changes in such material under the direction of the Em- ployers, staff writers, and supervisors within the meaning of the Act. P^- b. McCadden unit (Case No . 21-RC-2849) In Case No. 21 - RC-2849, TWA seeks a unit of writers2s em- ployed by McCadden in the preparation and presentation of television shows and programs produced by McCadden. ALA contends that this unit is inappropriate and that a multi- employer unit of writers employed by television film pro- ducers is alone appropriate . MeCadden contends that any unit found appropriate for these employees should be limited to the Los Angeles region. McCadden produces the Burns and Allen show and employs writers for this purpose. It has never bargained collectively concerning writers and has never bargained collectively with its employees as part of any multiemployer group. Accordingly; we find a single-employer unit appropriate. One writer , William Burns, is Ta brother of George Burns, star of the Burns and Allen show. He receives separate treat- ment from the other writers by the Employer and the parties would exclude him from the unit . Accordingly , we will exclude him from thg unit. We find that the following unit is appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act: All writers employed by the Employer in the preparation and presentation of television shows and programs produced by the Employer , excluding William Burns and supervisors as defined in the Act. 5. Eligibility questions a. The Networks Eases All of the pdrties were agreed that , in view of the transitory nature of the employment relations between the Networks and the writers, the usual eligibility period for employees voting in a Board election should not be adopted in the instant case. However, they did not agree as to what the appropriate eligi- bility period should be: AL-A, NBC, CBS, and ABC contend that all employees employed at any time from January 1, 1951, through the date of the direction of election should be eligible to vote. TWA contends that any writer employed during the 6- month period preceding the direction of election should be found eligible to vote. The available evidence as to frequency of employment of writers in the industry indicates that adoption of the usual eligibility period would probably render ineligible the vast majority of the employees in the unit which we have found 25 Not limited to free-lance writers. NATIONAL BROADCASTING COMPANY. INC. 595 appropriate. The length of the employment relationship between writers and employers varies widely within the industry. Some writers have been employed on a single program on a continuous basis, particularly on comedy shows featuring a fixed star or group of stars . Others are employed to work on a script used only in a single broadcast. This seems to be common in dramatic programs . Writers also may frequently write for other media besides television, such as radio, movies, stage , or they may write short stories and novels for publi- cation, so that they do not rely entirely on any one medium for their livelihood. Such writers, while falling within the unit description in this case, may not write for television over fairly long intervals of time while engaged in other work. While no accurate statistics were furnished at the hearing, ALA presented some figures from its own files in support of the adoption of a longer eligibility period proposed by it, which indicate that a total of 910 individual writers were given 1 or more credits m in 1951 and 1952. Of these, 28 per- cent received credits in 1951 only, the remaining 72 percent receiving at least 1 credit in 1952. There was evidence that 40 to 60 percent of all writers receiving credits during the 2-year period wrote only 1 script during 1951 and 1952. Adoption of the period urged by ALA and the Networks would render eligible a number of writers (28 percent of the total) who, so far as appears from the record, had not been employed in the unit for periods varying from 12 to 24 months before the date of the hearing on the instant petitions. We do not believe that such writers have a sufficient interest in the selection of a representative to warrant their participation in the elections directed herein. On the other hand, there is insufficient basis in the record for appraising the reasonableness of the 6-month period proposed by TWA. The available data would indicate, however, that the adoption of a 1-year eligibility period will insure participation in the elections by a representative num- ber of writers having a substantial interest in the selection of a bargaining representative. Accordingly, all persons in the Networks unit who were employed during the 12-month period immediately preceding the date of this Decision and Direction of Elections will be permitted to vote in the elections directed herein.n b. McCadden case ALA urges a 2-year eligibility period in the McCadden case. TWA contends for a 4- to 6-month period. It appears from the t$ Each "credit" represents a script of the writer used on a network broadcast during the stated period. While the fact that a writer receives credit for a script in a given year does not necessarily mean that he worked on the script during that year, we take these figures as fairly indicative of employment during the years cited. zr At the hearing. TWA proposed that if a period longer than 6 months be found appro- priate, eligibility should be conditioned upon the writing of 2 or more scripts during such period. As the record indicates that adoption of this proposal might well result in rendering ineligible a majority of those in the unit, we find the writing of 1 script during the eligibility period sufficient. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record that the writers of the Burns and Allen show of McCadden are employed steadily for a series of shows. There is no evidence that McCadden draws from a general writers' pool. Accordingly, we will adopt the normal eligibility period for the employees of McCadden, and all persons will be eligible to vote who were employed during the payroll period immediately preceding the date of the direction of elections herein, including employees who did not work because they were ill or on vacation or temporarily laid off. [Text of Direction of Elections omitted from publication.] CARBOLOY DEPARTMENT OF GENERAL ELECTRIC COM- PANY and INTERNATIONAL UNION, UNITED AUTO- MOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), Petitioner and LOCAL UNION 107, INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, AFL, Petitioner. Cases Nos . 7-RC-2009 and 7 -RC-2016. April 30, 1953 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held before Herbert C. Kane and Emil C. Farkas, hearing officers. The hearing officers' rulings made at the hearings are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 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 organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Emplo er within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. Carboloy is a department of General Electric, a New York corporation,, and is engaged in the manufacture of cemented ' After the hearing in Case No.7-RC- 2009, the IBEW filed its petition in Case No. 7-RC- 2016 and moved to reopen Case No. 7-RC-2009. The Board then ordered the two cases consolidated and the proceeding remanded to the Seventh Region for further hearing. The UAW and the Employer moved to dismiss the IBEW's petition on the grounds that they were not served with notice of the IBEW 's request to reopen Case No. 7-RC-2009. The record discloses that none of the parties was in any way prejudiced by the procedure or lacked opportunity to introduce evidence bearing on all the issues raised herein . Further, it has been determined by the Board that the IBEW had a representative showing of interest at the time of the hearing in Case No . 7-RC-2009. Accordingly, we find without merit the conten- tion that due process was denied , and shall deny the motion to dismiss . See Pacific Metals Company. Ltd., 91 NLRB 696; Orkin Termite Company, Inc., et al., 79 NLRB 935. 104 NLRB No. 75.