American Broadcasting Co., Inc.

AMERICAN BROADCASTING COMPANY, INC. 605 therefore, order that the election be set aside and direct that a new election be held. [The Board set aside the election held on May 20,1954.] [Text of Direction of Second Election omitted from publication.] American Broadcasting Company, Inc.; Columbia Broadcasting System, Inc.; DuMont Television Network Division ; Allen B. DuMont Laboratories, Inc.; National Broadcasting Company, Inc. ; General Tele-Radio , Inc.' and Television Authority, affil- iated with the Associated Actors and Artistes of America, AFL, 2 Petitioner. Case No. 2-RC-2334. May 5, 1955 ORDER DENYING MOTION On February 18, 1952, pursuant to a Decision and Direction of Elec- tions,3 and an election conducted pursuant thereto, the Board issued an amended certification in the above-entitled proceeding, certifying American Federation of Television and Radio Artists as the exclusive representative of the following unit: All persons employed as talent on all live network television pro- grams originating in New York, Chicago, and Los Angeles, and broadcast over the network facilities of the Employers, including actors, masters of ceremony, quizmasters, disc jockeys, singers, dancers, announcers, sportcasters-play-by-play, assistant play- by-play, and colormen-specialty acts, walk-ons, television extras, and all other television performers, but excluding services ren- dered by such performers in the capacity of musician, and talent employed by Columbia Broadcasting System, Inc., in its west coast motion picture productions. On March 30, 1954, ABC filed a "motion to clarify decision and direction of election and certification of representatives," and, on May 26, 1954, the Board directed a hearing on this motion. On vari- ous dates between June 29 and October 14, 1954, the hearing was held before I. L. Broadwin, hearing officer. ABC, AFTRA, and the American Federation of Musicians, herein "called AFM, appeared and 1 American Broadcasting Company, Inc, was merged on February 9, 1953 , with United Paramount Theatres, Inc., and is now American Broadcasting-Paramount Theatres, Inc. ABC will be used herein to designate this Employer without regard to the time period involved 2 On September 20, 1952, Television Authority was merged with the American Federation of Radio Artists, and the name of the combined union was changed to American Federation of Television and Radio Artists AFTRA will be used herein to designate the Petitioner in all instances. 3 96 NLRB 815. 112 NLRB No. 83. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participated at the hearing 4 The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.' ABC, AFTRA, and AFM filed briefs to the Board thereafter. It is sought in this supplementary proceeding to resolve a dispute which centers about the meaning of the following phrase appearing in the February 18, 1952, certification in favor of AFTRA : "exclud- ing services rendered by such performers in the capacity of musician." The employees represented by AFTRA and generally covered by its certification are essentially actors, as distinguished from other station employees falling in the various categories of engineers, technicians, and musicians. By its motion, the Employer, the American Broadcast- ing Company, asks the Board to decide whether because of the certi- fication outstanding in favor of AFTRA, the employees placed in that unit description are entitled to perform all the duties mentioned in the job descriptions of those categories of employees. Restated, and perhaps more clearly, the Employer wants to know whether others of its employees-those whose job classifications are not expressly included in the AFTRA certification unit-are precluded because of the certification from performing any of the type of work generally embraced by the certification. AFTRA urges that the motion be denied in its entirety on the ground that the certification in question clearly gives all such work duties to the employees in the certification unit. The AFM would have the Board determine in this particular proceeding only the unit place- ment of the nonmusical duties of a few particular individuals; it urges that in these special few instances the nonmusical duties of the specified musicians be ruled as falling outside the AFTRA certification and therefore to be performed by musicians represented by the AFM. The Employer opposes any limited ruling by the Board at this time and instead requests a broad determination of the rights of each of the contending labor organizations. At the outset, we note that the unit set out in detail in the certifi- cation, and pro forma, with an exception not here relevant, found appropriate by the Board in its Decision and Direction of Elections 3 years ago, first appeared in the amended petition filed by AFTRA. The particular phrase (excluding services rendered by such perform- ers in the capacity of musician) now disputed by the two unions was added by the petitioning AFTRA in its amended petition. Through the regular election proceeding no issue was raised by any of the * None of the other Employers has appeared in connection with the instant proceeding, National Association of Radio and Television Broadcasters filed a brief amicus curiae in support of ABC's motion, but did not participate at the hearing, and has not filed any brief to the Board after the hearing 6After the hearing had been closed, AFTRA filed a motion to correct the transcript in various respects. AFDT has objected to one of the 30 corrections proposed by AFTRA. We shall, therefore, grant the notion to correct the transcript in all respects but that objected to by AFM As to this latter proposed change, the record as presently constituted sufficiently enables us to consider the relevant issues and facts of the case. AMERICAN BROADCASTING COMPANY, INC. 607 parties either at the hearing or in their briefs on this point. Indeed, the AFM, whose representative status could be materially affected in this proceeding, was not even a party to the election proceeding. In accordance with long-established practice and because none of the parties at that time indicated that there existed any confusion as to the meaning of the now disputed language, the Board found the agreed-upon unit appropriate and directed the requested election. The further facts now appearing in consequence of the Employer's motion to clarify show that at the time of the election there were con- tracts in existence between the Company and AFTRA. Moreover, after the certification of AFTRA a further agreement was made utilizing as a basis for recognition substantially the unit description as set out in the certification. It thus appears that we are asked, on motion, to explicate a certification more than 3 years old and which has served, apparently successfully, as the basis for 2 subsequent col- lective-bargaining agreelnents. It is clear that any decision by this Board as to the precise meaning or effect to be given the language of AFTRA's certification would affect not only the extent of the majority representative status of AFTRA but also that of AFM. Indeed, it would be impossible either to expand or curtail the coverage of AFTRA's representative author- ity without automatically thereby either infringing upon or adding to the corresponding authority of the AFM to represent the Employ- er's musicians. We believe it neither appropriate nor possible to re- solve a problem of such magnitude and impact in the context of a simple motion to clarify a 3-year-old certification. Board unit find- ings should only be based upon a full consideration of the entire unit or units affected, including both overall appraisal of the unifying com- mon denominator which reveals the basic community of interest, and the relationship among appropriate bargaining units of a single em- ployer. It is, in the circumstances of this case, only in a regular rep- resentation election proceeding that the Board can intelligently and properly make the unit determination called for by the statutory scheme. We conclude that the Employer's motion to clarify is not a proper method for resolving the 3-cornered disagreement now existing between it and the 2 contending unions. We also note that in substance the Board is here being asked to make an award concerning work task claims to one or another of two com- peting -unions. In this real sense, the purpose and effect of the Board's certification under the statute has been misconceived. As was stated in the Plumbing Contractors Association cases ". . . the Board's unit a 93 NLRIR 1081, 1087 See also General Aniline S Film Corporation, Ansco Divtiswon, 89 NLRB 407, where the Board said " the Poard's only function in a representation proceeding `is to ascertain and ceitifv to the parties the name of the bargaining representa- tive, if an-v. that has been designated by the employees in the appropriate unit, it is not our function to duect, instinct, or limit that representative as to the manner in which it is to exercise its bargaining agency.' 11 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding does not per se preclude the employer from adding to, or sub- tracting from, the employees' work assignments. While that finding may be determined by, it does not determine, job content; nor does it signify approval, in any respect, of any work task claims which the certified union may have made before this Board or elsewhere." On total consideration of the entire problem, we do not think it would be appropriate to resolve here the unit placement of services of musicians in particular dispute. The issue as to these employees is so inextricably woven with the broader problem that its resolution could not be accomplished without what would amount to a recon- sideration of the unit itself, which, as we have stated above, we shall not attempt in this kind of proceeding. Accordingly, in all the circumstances of this case we shall dismiss ABC's motion to clarify. This dismissal is not to be deemed as a de- cision on the merits of the dispute in any manner, either in its broad aspects or as bearing on the question of the unit placement of the non- musical services of any employee or the question of union membership requirements of any employee. [The Board denied the motion.] MEMBER LEEDOM took no part in the consideration of the above Order Denying Motion. United Association of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local 449, AFL and J. B. Ruthrauff, d/b/a Refrigeration Equip- ment Co. and Weston Sales & Service Co., Inc. and The Great Atlantic & Pacific Tea Company. Cases Nos. 6-CD-33,6-CD-34, and 6-CD-35. May 6, 1955 DECISION AND DETERMINATION OF DISPUTES This proceeding arises under Section 10 (k) of the Act, which pro- vides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (D) of the Act, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen...." On July 12,13, and 14,1954, respectively, charges were filed with the Regional Director for the Sixth Region by the various employers named as Charging Parties below, alleging that the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, Local 449, AFL, hereinafter called the Plumbers, had engaged in and was engaging in certain activ- 112 NLRB No 85