Midwest Television, Inc.

MIDWEST TELEVISION, INC., STATION WMBD-AM-FM-TV 413 nance units unless they are specifically excluded therefrom or unless they are expressly included in other units." Here, as plant clerical employees are not specifically excluded from the production and maintenance unit, and as the OEIU was not certified to represent plant clerical employees and the record otherwise fails to establish that it represents plant clerical employees,7 we find that the two employees should be included in the production and maintenance unit represented by the IAM. [The Board clarified the production and maintenance unit hereto- fore established in Cases Nos. 3-RC-423 and 3-RC-429 to include therein, as plant clerical employees, the two employees involved herein classified as perpetual inventory clerks.] 8 8 Equipment Sales Co., Inc , 146 NLRB 865 ; American Beryllium Company, supra. 7 While the record establishes that the OEIU represents the typist clerk , employed in the receiving department in the plant area and working under the supervision of the stock- room foreman , this fact, standing alone, is insufficient to show that the OEIU represents plant clerical employees 8 This Decision and Order Clarifying Bargaining Unit is not to be construed as a new certification. Midwest Television, Inc., Station WMBD-AM-FM-TV and American Federation of Television and Radio Artists, AFL- CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, Jointly. Case No. 13-CA-5418. Decem- ber 16, 1964 SUPPLEMENTAL DECISION AND ORDER 1 On October 29, 1964, Trial Examiner Fannie M. Boyls issued her Report on Evidence Regarding Challenged Ballots," on remand,2 in the above-entitled proceeding, which report is attached hereto. Neither party has filed exceptions to the report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner-made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board, has considered the report and the entire record in the case, and hereby adopts the fac- tual findings of the Trial Examiner. 1 The Board's original Decision and Order is reported at 144 NLRB 972. 2 This proceeding was remanded to the Regional Director for Region 13, by Board Order dated January 27, 1964, and the record reopened for the purpose of holding a further hearing before a Tiial Examiner to receive evidence with respect to the challenges to the ballots of William Dioylan, Lloyd Peterson, David Phillips, Dee Richards, and Milton II Budd cast in the election conducted on December 4, 1961 , in Case No . 13-RC-8194 150 NLRB No. 41. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A review of the record herein reflects that a strike occurred at sta- tion WMBD-AM-FM-TV in Peoria, Illinois, on November 16, 1961. It was still in progress on December 4, 1961, when the election was held, and did not end until February 1962. The five employees here in issue did not join the strike and their duties were admittedly broadened during the strike. The sole issue to be determined is whether their duties prior to November 17, 1961, were such as to bring them within the stipulated unit which. includes, in essence, all persons employed by the Company who appear in any manner on a regular basis in services before the microphone or camera. The Trial Examiner's findings of fact establish that Moylan did not appear on the air prior to November 17, 1961; that appearances on the air by Phillips and Peterson prior to that date were confined to irregular appearances in taped spot commercials; and that Rich- ards and Budd, in addition to appearing in spot commercials on an irregular basis, each appeared on a weekly radio or television show. In this latter connection the record demonstrates that Richards' total air time amounted to approximately 2 hours a month, and Budd's total air time amounted to approximately one-half hour a month. No exceptions were filed to these findings. On the basis of the above findings as more fully set forth in the Trial Examiner's Report, we find that Moylan was not included in the unit because he made no appearances on the air prior to critical date of November 17, 1961; that Phillips and Peterson were not included in the unit because their appearance on the air were on an infrequent and irregular basis; 3 and that Richards and Budd were not included in the unit because their appearances on weekly shows constituted an insignificant part of their normal duties, and amounted to so little air time as to be insufficient to create a real community of interest with employees whose regular duties required frequent appearances before the microphone or camera 4 Accordingly, we find that the challenges to the ballots 'cast by Moylan, Phillips, Peterson, Richards, and Budd in the election con- ducted in Case No. 13-RC-8194 were properly sustained. We, there- fore, find no merit in Respondent's contention that the certification' of representatives issued in Case No. 13-RC-8194 was invalid because the ballots of these employees were not counted. In view of the foregoing, we affirm our Decision and Order in this proceeding which issued on October 8, 1963. 3 The record demonstrates that "secretaries and other employees walking down the hall" were also called in to perform such commercials. Such employees are not in the unit 4 11ichards and Budd were so little impressed with their on-the -air duties that they gave statements to the Board's Regional Director during the investigation of, the chal- lenges that they spent little or no time on the air prior to the strike. MIDWEST TELEVISION , INC., STATION WMBD-AM-FM-TV 415 ORDER IT Is aEREBY ORDERED that the Board's Order of October 8, 1963, in this case be, and it hereby is, affirmed with the following modification : Paragraph 2(c) is amended by substituting the date of this Order for the date of the Board's October 8, 1963, Order.5 5 The address for the 13th Regional Office, given in the Appendix to the Trial Examiner's Intermediate Report, is amended to read: 881 U.S. Courthouse and Federal Office Build- ing, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572. REPORT ON EVIDENCE REGARDING CHALLENGED BALLOTS STATEMENT OF THE CASE On October 8, 1963, the Board issued its Decision and Order finding that Respondent had unlawfully refused to bargain with the Unions which had been jointly certified on November 7, 1962, as bargaining representative of Respondent 's employees in an appropriate bargaining unit. Thereafter, on October 16, 1963 , Respondent filed a motion for reconsideration, contending that substantial and material factual issues existed concerning five named employees whose ballots had been challenged in the underlying representation proceeding , that those factual issues had not 'been fully litigated, and that Respondent had been denied due process of law. The Board, on January 27, 1964, ordered that the hearing in this case be reopened to receive evidence with respect to the challenges to the ballots of those five individuals . Pursuant to that order, a hearing was held before Trial Examiner Fannie M . Boyls, at Peoria, Illinois, on April 17 and May 11, 1964. The order reopening the record does not direct the Trial Examiner to make recom- mendations concerning the disposition of the challenged ballots and no attempt will be made to do so. Credibility issues are presented , however, and in this report an attempt will be made to resolve those issues. In evaluating the credibility of the witnesses, I have relied at least in part on their demeanor at the hearing. The Evidence Relating to the Five Employees Whose Challenged Ballots Are in Issue The issue presented at this reopened hearing was whether the five employees, the challenge of whose ballots in the representation proceeding had been sustained, were during the payroll period ending November 17, 1961, a part of the unit found by the Board to be appropriate . This unit consists of: All persons employed by the Company at its broadcasting facilities known as Station WMBD-AM-FM-TV located in and around Peoria, Illinois, who appear in any manner on a regular basis in services before the microphone or camera including but not limited to those who speak , act, sing or in any manner perform as talent as such terms is [sic] used and understood in the broadcasting industry. This also applies to all persons rendering services in the field of news, who appear before a microphone or camera on a regular basis. [who were employed during the payroll period ending November 17, 1961,] but excluding office clerical employees, instrumental musicians performing as such, technicians , guards, professional employees and supervisors as defined 'n the Act, and all other employees. A strike had occurred on November 16, 1961 , and was still in progress on Decem- ber 4, 1961 , when the election was held . The strike did not end until sometime in February 1962. The five employees here in issue did not join the strike and it is undisputed that their duties, during the strike , were broadened to include some of the work of strikers. The evidence adduced at this hearing, although relating chiefly to the prestrike period, refers also to duties of these employees during the strike and after its termination . Since the voting eligibility date was November 17, 1961 , it would appear that any changes in the employees' duties subsequent to that date would be immaterial to the issues here presented and they will , therefore, not be considered in this report. William R . Moylan was employed by Respondent on October 15, 1960, as an account executive or salesman for Respondent 's television station . It is undisputed that he had never appeared on the air until November 17, 1961, the day after the 775-692-65-vol. 150-28 416 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD strike commenced. According to his credited testimony, on that day, because the station was shorthanded, he did one station break when called upon to help out in the emergency.1 Lloyd Peterson was employed by Respondent on May 23, 1960, as its director of continuity and on May 16, 1961, became its national sales coordinator. It is undis- puted that his basic duties prior to the strike consisted of the writing and preparation of materials for television commercials, promotions, and public service. According to his credited testimony, he did little on-the-air work before the strike, but there were some occasions when he was called upon to do some spot announcements. Upon these occasions-from three to five times a month-his voice would be taped for use on radio commercial spots. It would take 2 or 3 minutes for him to prepare a 1-minute commercial. Sometimes the same tape on which the spot commercial appeared would be run and rerun a number of times. After the strike started, Peterson spent from 40 to 50 percent of his time on the air or preparing for on-the-air work. Upon the termination of the strike he returned to his normal duties.2 The record shows that secretaries or other employees walking down the hall were occasionally called upon to use their voices in the recording of a spot announcement in much the same way as Peterson's voice was used in the prestrike period. General Manager Brown testified, and I accept his testimony in this respect, that when interviewing almost all employees for hire, he took into consideration their previous experience or abilities which might qualify them for such on-the-air duties. David Phillips was hired at Respondent's television station in May 1961 as director of continuity and client service. He testified that his duties as such director included writing commercials and public service copy, scheduling public service announce- ments, assisting in any preparation necessary to put the spots on tape, and at various times helping in the announcement of those spots. Although he testified in conclu- sionary terms that prior to the strike his duties had included the "making of television and radio spot announcements on a regular basis, as needed," he explained that by this he meant that about four or five times a month he had made tapes for spot announcements which were later broadcast. Tapes, according to Phillips, are made in order "to eliminate errors ... to make it more convenient to add production values that are perhaps chancy on live air," and "to make announcements available when the talent involved might not be available on a live basis"; and once made, the tapes are usually run many times. Phillips conceded that at times a secretary or almost any employee would likewise occasionally be called upon to furnish his or her voice in taping a spot. In a sworn statement given to a Board agent on January 3, 1962, which Phillips acknowledged at the hearing to be true and which I am convinced is true, he stated that prior to the strike he did little or no on-the-air work. It is undisputed that after the strike started, Phillips did a substantial amount of on-the-air work, spending about 25 of the approximately 90 or 100 hours a week which he then worked in recording material for broadcast and making announcements on the air. The testi- mony of General Manager Brown and Engineer Don Math regarding Phillips' duties is, in general , not inconsistent with Phillips' testimony. Lomertt D. (Dee) Richards was hired by Respondent in October 1959 as a con- tinuity writer and to help make commercials. For some time prior to the strike, his voice was taped on a commercial between two and five times a month, and was there- after run on the air. In addition, however, he appeared regularly on the air each Saturday on a half-hour "Bids for the Kids" program which was broadcast over the radio, and he received a talent fee of $4 a week for such appearances. His job on that program was to act as an aisle man-with a microphone in hand, interviewing over the air the children who participated in the program-and also, as stage manager, to 1 The testimony of William L. Brown, Respondent's general manager, appears some- what confused on this issue He at first testified that prior to the strike Moylan appeared on a regular basis on sports programs , primarily sports remote programs , but he later conceded that these appearances were during and subsequent to the strike, and that Moylan had not appeared on the air before the strike g Don Math, employed by Respondent as an engineer prior to the strike, with the duty among other things of running audio and camera, testified that he had never heard Peter- son on the air prior to the strike. Respondent's General Manager Brown, on the other hand, testified that both before, during, and after the strike Peterson appeared on a regular basis on primarily promotional announcements on radio and television and on some commercial announcements . I regard the testimony of Math and Brown as less reliable than that of Peterson and do not credit it insofar as it is inconsistent with the testimony of Peterson set forth in the text above and as corroborated by his statement given' a Board agent on January 3, 1962, which Peterson vouched for as true at the hearing. MIDWEST TELEVISION , INC., STATION WMBD-AM-FM-TV 417 chat over the air with the auctioneer on the program. There is no substantial dispute regarding the above facts. Richards' testimony regarding his regular Saturday on-the- air work is not only corroborated by that of other witnesses, but by Respondent's records which show that he was regularly paid a talent fee for that work.3 Milton H. Budd has been employed'by Respondent since 1932. Prior to October 1959 he had been an announcer at the radio station. During that year he became TV film librarian. As film librarian he kept records of commercial films which were referred to as spot announcements. After receiving them he would record them in his books as available for use on television. He also frequently screened movies to ascer- tain that they were of sufficient mechanical quality and that the moral content was acceptable. After the movies were used, Budd would see that they were then sent back to the distributor or to another television station. In addition to this work, Budd did some on-the-air work prior to the strike but there are conflicts in the testimony regarding the scope of his on-the-air duties. In an affidavit given to a Board agent on January 3, 1962, Budd states: "Prior to the strike I did little or no on-the-air work with the exception that on occasion I would do spot announcements." His testimony is somewhat confusing and inconsistent with this affidavit. Thus, he testified that in the weeks immediately preceding the strike, it frequently became necessary for him to make or participate in commercial or promotional announcements which required microphone or camera work, and that he also was on camera weekly as host of a regular Friday or Saturday night show, called "Nightmare." With respect to the commercial or promotional announcements, he explained that he made recorded announcements or filmed spots which appeared later on radio or television and that he did this work only when asked to do it and not according to any particular schedule. I am convinced on the basis of his testimony and that of General Manager Brown, Operations Manager Robinson, and former employees Math and -Dodson that he performed this type of work before the strike at least as often if not more often than Peterson, Phillips, and Richards. It is undisputed that these announcements, like those recorded by the other employees treated above, were sometimes run on radio or television• a number of times. , It is also undisputed that when the strike started on November 16, Budd took over some announcing duties and thereafter spent a sub- stantial amount of his time on live broadcasts over Respondent's radio. At the time of the hearing, he was still regularly doing a 6:30 to 10 morning show. There is a sharp dispute among the witnesses as to whether during the period of several weeks or several months prior to the strike Budd appeared as a voice or image leading in and out of the weekly late television movie "Nightmare." It is undisputed, however, that no one except Budd had ever hosted this show. Respondent has been showing "Nightmare" on its television program for many years, but during one period of at least several months' duration that show was off the air. One witness, Don Math, testified that the movie was not shown for several months immediately prior to the strike, and another witness, William L. Dodson, testified that for some time prior to the strike, Budd had not been-filmed for the lead-ins and lead-outs and that slides were used instead. This testimony is consistent with the affidavit of Budd given to a Board agent on January 3, 1962, which does not mention the show "Nightmare" and which recites that prior to the strike Budd did little-or no on-the-air work except for occa- sional spot announcements.4 Nevertheless, I am convinced from the testimony of Budd,-General Manager Brown, Operations Manager Robinson, Cashier Mary Tobin, and Chief Photographer Whitmore, and from the program logs and filming schedules produced and explained at the hearing, that Budd did, in fact, during the period of several months prior to the strike, as well as thereafter, appear on the film which opened and closed the "Nightmare" movie. The period during which "Nightmare" was off the air, according to 'the credited testimony of Robinson, was immediately prior to June 1-961. I was, moreover, particularly impressed with the testimony of Chief Photographer Whitmore who identified and explained the records of film processed during the prestrike period. These records for at least each week between September 8 and November 16, 1964', show that from 100 to 150 feet of film for the opening and closing of the "Nightmare" show was processed and that sound on film was used in the processing. According to Whitmore's credited testimony, the voice of Budd was inserted on' the film which included Budd's distorted image and which sin a statement to a Board 'representative on January 3, 1962, Richards apparently forgot to mention his regular Saturday assignment and signed the statement which de- scribes him as having done little or no on-the-air work prior to the strike. The statement, as Richards testified, is therefore incorrect. Budd's only explanation for having failed to mention "Nightmare" in his affidavit was that when asked about his on-the-air work, he was thinking in terms of his voice being heard over radio. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD introduced each "Nightmare" movie during this period. The voice inserts were not mere general comments which could have been made once and used repeatedly there- after, but were related to each individual movie. Each 100 feet of the film takes about 13/a minutes to run. Gould-National Batteries, Inc. and Gordon Kenley, Petitioner and International Brotherhood of Electrical Workers, Local Union 217, AFL-CIO. Case No. 27-RD-195. December 16, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Alli- son E. Nutt. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner, an employee of the Employer, asserts that the Union, a labor organization, is no longer the representative of the employees designated in the petition as defined in Section 9 (a) of the Act. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: The Petitioner seeks a decertification election limited to employees at the Employer's Ogden, Utah, plant. The Employer agrees with the Petitioner that the employees at the Ogden plant constitute a separate appropriate unit. The Union 1 and Gould Battery Workers Council, EM-2, IBEW, AFL-CIO,2 which, as discussed below, has bargained with the Employer on behalf of various local unions of the International Brotherhood of Electrical Workers, AFL-CIO,3 contend that because of a bargaining history on a broader basis the requested unit is inappropriate and the only appropriate unit is a multiplant unit, including the Ogden plant. The Employer is primarily engaged in the manufacture, distribu- tion, and sale of industrial batteries, automotive batteries, and other automotive parts at 32 manufacturing plants and 150 sales and ware- Hereinafter called Local 217. a Hereinafter called the Council. a Hereinafter called the IBEW. 150 NLRB No. 26.