Wyoming Radio, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD views the forms when observations are being made and bases her judgment of the operators' competency, at least in part, on them. In addition to the above duties, the "supervisors" are responsible for the operation of the traffic department between 7 a.m. and midnight on weekends and between 7 and 8 a.ln. and 9 p.m. and midnight on week- days, hours during which no chief operator is present, and at such times exercise discretion in assigning overtime. They receive a "relief differential" for tours or shifts between 8 a.m. and midnight on weekends. The Board has recently found that employees classified as "super- visors" at the other Montana offices of the Employer are supervisors within the meaning of the Act.3 The duties of the "supervisors" herein, though different in some respects from those of the similarly classified employees at the other Montana offices, are not so materially distinguishable as to warrant a different determination of supervisory status. Accordingly, we find that the "supervisors" at the Employer's Missoula, Montana, office are supervisors within the meaning of the Act and should be excluded from the previously certified unit. We, therefore, grant the instant motion to remove them from the bargain- ing unit because they are supervisors. [The Board excluded the classification of "supervisor."] 3 See The Mountain States Telephone and Telegraph Company (not published in NLRB volumes ) ; The Mountain States Telephone & Telegraph Company, 126 NLRB 676, Wyoming Radio , Inc. and National Association of Broadcast Employees and Technicians, AFL-CIO. Cate No. A041. February 16, 1961 ADVISORY OPINION This is a petition filed by Edward M. Lynch, regional director for region 2 of the National Association of Broadcast Employees and Technicians, AFL-CIO, herein called Petitioner, pursuant to Section 102.98 of the Board's Rules and Regulations, Series 8, praying for an advisory opinion as to whether the Board would assert jurisdiction over the operations of Wyoming Radio, Inc., herein called the Em- ployer. Thereafter, on December 22, 1960, the Employer filed an answer to the petition. A. In substance, the petition and its attachments allege as follows: 1. The Employer is engaged in the business of commercial radio programing and transmission at Nanticoke, Pennsylvania. In a rep- resentation proceeding held before the Pennsylvania Labor Relations Board, herein called the Pennsylvania Board, the Employer admitted 130 NLRB No. 41. WYOMING RADIO, INC. 391 that its gross annual business for the fiscal year ending August 29, 1959, was $75,000. 2. On August 8, 1960, after the Petitioner won the election in the representation proceeding, the Pennsylvania Board issued a nisi order of certification setting forth that the Petitioner had been selected as the exclusive representative of Employer's employees. 3. Thereafter, on August 16, the Employer filed exceptions to the nisi order on the grounds, inter alia, that the Pennsylvania Board erred in asserting jurisdiction over the Employer without considering a 4-week financial statement, the figures of which, if projected for a full year, would have indicated a gross annual income in excess of $100,000 for the fiscal year ending May 31, 1961. Such a projection, according to the Employer, would result in "restoring jurisdiction to the National Labor Relations Board and a priori removing jurisdic- tion from the Pennsylvania Labor Relations Board." 4. On September 8, 1960, the Pennsylvania Board issued its final order dismissing the Employer's exceptions and making the nisi order final and absolute. In so doing, the Pennsylvania Board refused to project the 4-week figures because commerce data for a recent annual period was available to it-to wit the fiscal year ending August 29, 1959.1 5. Based upon refusal-to-bargain charges, the Pennsylvania Board, on September 19, issued a complaint in Case No. 87 for the year ending 1960, naming the Employer as respondent. The complaint has been noticed for hearing. 6. There is no petition or charge now pending before the National Labor Relations Board with respect to this matter. B. In its answer to the petition herein, the Employer alleges as follows : 1. The substance of the allegations in the petition is admitted by the Employer. Its gross annual business for the fiscal year ending August 29, 1959, was $75,517.07; while its gross annual business for the fiscal year ending August 27, 1960, was $85,387.94. During the 15-week period between August 27 and December 10, 1960, the Em- ployer's gross business was $26,698.25. 2. In addition, the Employer alleged that, at the hearing before the Pennsylvania Board in the aforementioned unfair labor practice Case No. 87 of 1960, it objected to the jurisdiction of the Pennsylvania Board and submitted a commerce questionnaire in support of its ob- jection, This questionnaire, a copy of which was attached to the Employer's answer herein, substantiates the commerce data herein- above set forth. IIn support of this position , the Pennsylvania Board cited the Board 's decision in Aroostook Federation of Farmers, Inc., 114 NLRB 538, and the General Counsel's speech of August 31, 1960, delivered at Hershey, Pennsylvania. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Employer has no objections to the assertion of jurisdiction by the National Labor Relations Board. C. On the basis above, the Board is of the opinion that : 1. The Employer, operating a radio station; is engaged in the busi- ness of commercial radio programing and transmission. 2. The Employer's gross volume of business was $75,517.07 for the fiscal year ending August 29, 1959, and was $85,387.94 for the fiscal year ending August 27, 1960. If the Board were to project for a year the figure of $26,698.25 for the 15-week period between August 27 to December 10, 1960, the gross volume of business would be $92,553.93. 3. The Board's standard for exercising jurisdiction over enterprises engaged in the operation of radio stations is a minimum gross volume of business of $100,000 per annum. Raritan Valley Broadcasting Company, Inc., 122 NLRB 90. Accordingly, the parties are advised, pursuant to Section 102.103 of the Board Rules and Regulations, Series 8, that: The Board would not assert jurisdiction herein because the facts submitted do not establish that the Employer's operations meet the Board's standard for asserting jurisdiction over radio stations. Fred L. Roberts and Plumbers and Pipefitters Local Union No. 350 and Sheet Metal Workers Local Union No. 26. Case No. A0-f20. February 16, 1961 ADVISORY OPINION This is a petition filed by Plumbers and Pipefitters Local Union No. 350 and Sheet Metal Workers Local Union No. 26, herein jointly called Petitioners, under the Board's applicable Rules and Regula- tions, requesting an advisory opinion as to whether it would assert jurisdiction over the operations of Fred L. Roberts. Said petition alleges in substance that : 1. Petitioners are defendants in a suit brought against them by said Roberts in the First Judicial District Court of the State of Nevada. Said case is docketed as Case. No. 22720 in said court. (The nature of said suit is not given.) 2. Said Roberts, since April 1960, has been engaged in Carson City, Nevada, as a subcontractor in the plumbing, heating, and air- conditioning business. Prior to that time he was engaged at Fresno, California, in a similar business. 3. During the first quarter of 1960, while he was operating in Cali- fornia, Roberts purchased materials valued at $38,875, approximately half of which came to him "directly or indirectly from outside that State." When he removed his business to Nevada, Roberts took with .him and transferred approximately "$7,000 worth of these materials" 130 NLRB No. 40.