KCRL-AM

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capital C. Inc., d/b/a KCRL-AM and Circle L. Inc., d/b/a KCRL-TV and International Brotherhood of Electrical Workers, Local 401, Petitioner. Case 20- RC-9923 February 7, 1972 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 20 on April 12, 1971, an election by secret ballot was conducted in the above-entitled proceeding on April 30, 1971, under the direction and supervision of the Regional Director, among the employees in the stipulated appropriate unit. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended. The tally of ballots showed that of approximately 41 eligible voters, 17 cast ballots for, and 16 cast ballots against, the Petitioner and 4 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. The Regional Director investigated the challenged ballots and, thereafter, on June 8, 1971, issued and served upon the parties his report on challenged ballots. In his report, the Regional Director recommended that the Board overrule the challenges to the ballots of Ro- nald Blais, Mara Scott, and John Firpo, and that their ballots be opened and counted; and that the Board sustain the challenge to the ballot of Charlene Gates. The Employer filed timely exceptions to the Re- gional Director's report, and a brief in support of its exceptions, limited to the challenge to the ballot of Ronald Blais. The Petitioner filed timely exceptions to the report, and a brief in support of its exceptions, limited to the challenge to the ballot of John Firpo. The Board, after having duly considered the matter and being of the opinion that issues had been raised with respect to the challenges to the ballots of Ronald Blais and John Firpo which could best be resolved by a hearing, on July 13, 1971, issued an Order Directing Hearing for the purpose of receiving evidence to resolve the issues raised with respect to the challenges to the ballots of Ronald Blais and John Firpo.1 On August 13, 1971, a hearing was duly held. On October 26, 1971, the Hearing Officer duly served upon the parties his Report and Recommendations on Chal- ' In the absence of exceptions thereto, the Board adopted, pro forma, the Regional Director's recommendations that the challenge to the ballot of Charlene Gates be sustained and that the challenge to the ballot of Mara Scott be overruled, but deferred the opening and counting of Scott's ballot pending disposition of the two remaining challenged ballots lenged Ballots. In his report, the Hearing Officer recommended to the Board that the challenge to the ballot of Ronald Blais be overruled, that the challenge to the ballot of John Firpo be sustained, and that the ballots of Mara Scott and Ronald B. Blais be opened and counted. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report, those exceptions being directed solely to the Hearing Officer's findings and recommendation relating to Blais' ballot. An answering brief was thereafter filed by the Petitioner. 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 in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid employees of Capital C. Inc., d/b/a KCRL-AM, and Circle L. Inc., d/b/a KCRL-TV, including engineers, announcers, news department employees, traffic managers and assistant traffic managers, news photographers, film lab technicians, artists, production camera- men-studio propmen, messengers and janitors, ex- cluding all office clerical employees, guards and supervisors as defined in the Act. 5. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's Report and Recommendations on Challenged Ballots, the Em- ployer's exceptions, and the briefs, and is of the opinion that the Employer's exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Hearing Officer's recommendation that the challenge to the ballot of Ronald Blais be over- ruled.' Accordingly, we shall direct that the ballots of Mara Scott and Ronald B. Blais be opened and counted and that the Regional Director take such further action as may be appropriate in the circumstances. ' In the absence of exceptions thereto, the Board adopts, pro forma, the Hearing Officer's recommendation that the challenge to the ballot of John F Firpo be sustained 195 NLRB No. 49 CAPITAL C. INC. 333 DIRECTION It is hereby directed that, as part of the investigation to ascertain representatives for the purposes of collec- tive bargaining among certain employees of Capital C. Inc., d/b/a KCRL-AM, and Circle L. Inc., d/b/a KCRL-TV, Reno, Nevada, in the unit herein found appropriate, the Regional Director for Region 20 shall, at a time and place to be determined by him, open and count the ballots of Mara Scott and Ronald B. Blais, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots, upon the basis of which he shall issue the appropriate certification. CHAIRMAN MILLER, dissenting in part: On the basis of the credited evidence,' I would find Ronald B. Blais a supervisor, and sustain the challenge to his ballot. Blais holds the title of transmitter super- visor. He was hired by the Employer on July 14, 1970, before the station began broadcasting, to assist in the construction and installation of equipment. Since then, Blais has taken a regular shift as transmitter operator, along with four other operators. He is paid more than the others and, in turn, has been given certain authority over them, sufficient in my view to constitute him a supervisor under the Act. The record establishes that Blais assigns work to the operators. One of his duties is to formulate and post work schedules. The Hearing Officer found this did not require an exercise of discretion or independent judg- ment, since Blais consulted with the operators before preparing the schedules. However, this is to be ex- pected from any individual whose responsibility it is to make work schedules, and does not in my view detract from his authority to make decisions relating thereto. The Hearing Officer did not discredit Bond's testimony that he had instructed Blais to prepare the schedules himself, and to decide on his own what was equitable. Blais' practice of showing the schedules to Bond, men- tioned by the Hearing Officer, appears to have been his own choice, and not because he lacked authority to do ' Though I accept the Hearing Officer's credibility resolutions, I do so reluctantly The Hearing Officer discredited many portions of Chief Engi- neer Bond's testimony on grounds of certain "internal inconsistencies" otherwise. In each instance, Bond approved the schedule perfunctorily, without change. Moreover, the Hearing Officer failed to mention Blais' testimony that he assigned work in other ways. According to Blais, "I tell one person to watch the `compressure' pump, or to check the oil in the diesel or things like this." Blais testified that at the end of his shift, he put these instruc- tions in the daily log . Blais also testified he took it upon himself to "pass on information that I thought perti- nent to the operation other than what's normally re- quired." He added "But these things I'm used to be- cause I've been maintenance supervisor for a long time" (apparently referring to his many years as a transmitter "supervisor" in the Armed Forces). The record also established that Blais had the au- thority to effectively recommend discharge. Considera- ble evidence was received regarding the discipline and possible discharge of one unnamed, "obnoxious" oper- ator. Chief Engineer Bond testified that he told Blais he had authority to get rid of this operator, whereas Blais was more equivocal in his testimony. However, at one point, Blais himself testified that Bond told him "I had the authority to get rid of him." Blais' further tes- timony that Bond told him "by my understanding if this arose again I was to contact him (Bond) and by my recommendations he might fire him," while equivocal on its face, when considered in the total context appears to relate more to Blais' cautious subjective judgment or "understanding," and is not inconsistent with the clear testimony that he was given broader authority than this statement of his "understanding" might otherwise indi- cate. On the basis of the foregoing, I would find that, on the relevant dates, Blais possessed the authority of a supervisor. There is a suggestion in the record that, in view of the newness of the Employer's station and the short time Blais had been a supervisor for the Em- ployer, Blais was only gradually beginning to exercise his authority. If this is true, he should be found to be a supervisor, since it is our regular practice to exclude from the unit supervisor "designates."4 Accordingly, I dissent from my colleagues' conclu- sion to count Blais' ballot. Most of the alleged inconsistencies are not apparent to me from a reading 4 The Yale and Towne Mfg. Co., 135 NLRB 926, 928 (Kirby), American of the record Cable Systems. Inc, 161 NLRB 332, 338 (Goldbar)