WNYS-TV (WIXT)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD WNYS-TV (WIXT) and National Association of Broadcast Employees & Technicians, AFL-CIO, Petitioner. Case 3-UC-134 November 1, 1978 DECISION ON REVIEW AND ORDER REMANDING TO REGIONAL DIRECTOR BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 19, 1978, the Acting Regional Director for Region 3 issued his Decision, Order, and Clarifi- cation of Bargaining Unit in which he clarified the certified bargaining unit to include the producer of community and public affairs programs, but dis- missed that part of the petition seeking to add by way of clarification the floor managers, newswriters, photo managers, news producer, and commercial producer.' Thereafter, the Petitioner filed a request for review of the Acting Regional Director's refusal to include the commercial producer on the grounds that in denying that part of its clarification request he made erroneous findings of fact and conclusions of law, particularly his conclusion that the Union's failure to insist upon inclusion of the disputed classi- fication in the unit during the most recent contract negotiations precludes the addition of the disputed employee to the unit by way of clarification. On Au- gust 9, 1978, the Board by telegraphic order granted the request for review. Thereafter, the Petitioner filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record, including the Petitioner's brief on review, the Board makes the following find- ings: On October 30, 1969, the Petitioner was certified as the collective-bargaining representative of a unit described as: All full and part-time production and mainte- nance employees, including all engineers and technicians, film editors and processors, news reporters and editors, photographers, artists, di- rectors, camera persons, crew persons, announc- ers and persons who regularly and frequently All of these classifications with respect to which the petition was dis- missed, except for commercial producer, were included by agreement of the parte. appear on camera, excluding all part-time stu- dents, independent contractors, office clerical employees, janitors, salespersons, guards and supervisors as defined in the Act. The Employer contends that the commercial pro- ducers should not be included because, historically, the position has been a nonunit position. The position of commercial producer was created during the term of the previous collective-bargaining agreement but was never included in the unit. During negotiations for the current contract, the Petitioner proposed that the classification be included in the unit but the parties did not reach agreement on this issue. The Petitioner explains that this issue was the only one unresolved in negotiation and that it did not wish to risk economic warfare and/or possible unfair labor practice charges over this question and with- drew the proposal. The Petitioner did, however, ex- press its intent to pursue the matter through other channels in the future. The agreement was signed on March 17, 1978. The Union filed a grievance on this matter on March 27, 1978, and on May 1, 1978, it filed the instant petition. The Acting Regional Director, citing Northwest Publications 2 and Wallace-Murray Corporation, Schwitzer Division,3 reasoned that the requested clari- fication of the bargaining unit in these circumstances would be permitting one of the contracting parties to effect a change in the definition of the bargaining unit during the contract term. Therefore, he refused to clarify the unit to include the commercial pro- ducer. In our view, the facts in this case are virtually iden- tical to those in Massey-Ferguson, Inc.4 In that case, the union was reluctant to make inclusion in the unit of a disputed classification of employees, a serious issue that would hold up contract negotiations, and informed the employer that it would pursue the mat- ter "through legal channels" after the negotiations. The Union in that case filed a clarification petition shortly after the contract was executed. The Board found that clarification to include the disputed class- ification was proper, absent an indication that the petitioner there abandoned its request in exchange for some concession in the negotiations. Inasmuch as there is no indication in the instant case that the Petitioner withdrew its proposal to in- clude the commercial producer in exchange for a concession in negotiations, we find that its postpone- ment of the filing of a clarification petition until 2 200 NLRB 105 (1972). 3 192 NLRB 1090 (1971). 4202 NLRB 193 (1973). 170 WNYS shortly after execution of the contract does not con- stitute its acquiescence in exclusion of the classifica- tion from the unit. We shall therefore remand the case to the Regional Director for the purpose of fur- ther appropriate action with respect to making a de- termination as to the community of interest that the commercial producer shares with employees includ- ed in the bargaining unit. 171 ORDER It is hereby ordered that this case be, and it hereby is, remanded to the Regional Director for Region 3 for the purpose of taking further appropriate action with respect to making a determination as to the community of interest that the commercial producer shares with employees included in the bargaining unit.