WAPI-TV-AM-FM

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newhouse Broadcasting Corporation d/b/a WAPI- TV-AM-FM and Algie V. Surratt, et al., Petition- ers and International Brotherhood of Electrical Workers, Local Union #253, AFL-CIO, Union. Case 10-RD-414 July 20, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Stephen D. Hise on November 2 and 3 , 1971. Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision . There- after, the Petitioners, Employer, and Union filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error . The rulings are hereby affirmed. 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 Petitioners, employees of the Employer, assert that the Union, which has been certified as the exclusive bargaining representative of the employees designated in the petition, is no longer a representa- tive as defined in Section 9(a) of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioners seek a decertification election in the same unit for which the Union was previously certified, that is, all employees in the engineering department at WAPI-TV-AM-FM, excluding super- visors. Petitioners would include in this unit assistant staff engineers and projectionists on the ground that they were by stipulation included in the unit and voted in the election which resulted in the Union's certification . The Union contends that the assistant staff engineers are supervisors and should be exclud- ed. The Employer agrees with the Petitioners' position, but contends further that if the eligibility of the assistant staff engineers is to be redetermined, then that of the projectionists should also be reexamined and it would exclude them. Petitioners and the Employer argue that, since the unit in a decertification election should coincide with the unit for which the union was certified, and the assistant chief engineers were included in the unit and voted in the election which resulted in the Union's certification, they should also be included in the present unit and permitted to vote. We find no merit in this argument. Supervisors by statute are excluded from the coverage of the Act. The Board is therefore without jurisdiction to include them in a bargaining unit. If the position of the Petitioners and the Employer was adopted, and the Union won the decertification election, the Board would have to certify that the supervisors were included in the bargaining unit for which the Employer was required to bargain. But the Board is prohibited from doing this. Accordingly, even if supervisors were included in the bargaining unit for which a union was certified by stipulation of the parties, the Board must exclude them in a subsequent decertification election involv- ing the certified unit.' We shall therefore examine the status of assistant chief engineers to determine whether they are supervisors. There are 20 employees in the engineering depart- ment: 5 plus an assistant chief engineer in the radio section, and 13 plus an assistant chief engineer in the television section. The engineering department is under the overall supervision of a chief engineer whose supervisory status is conceded. The employees in the radio engineering section keep AM and FM transmitters on the air, take necessary readings from them, load tapes and cartridges containing music and commercial messages, watch controls for proper audio signal level, and perform maintenance work both at the main station and two remote locations. Television engineering section employees perform video switching (moving from one source or program to another), projection (loading in proper sequence films and slides), and monitoring the video level of cameras and maintenance work as necessary. The Employer and Petitioners assert that the assistant chief engineers in the radio and television sections direct other employees in a routine way, exercising no independent judgment. They contend that, at most, the assistant chief engineers are highly skilled technicians who act as leadmen and are conduits of orders from the chief engineer to other unit technicians with skills closely comparable to 1 The Illinois Canning Company, 125 NLRB 699 198 NLRB No. 60 WAPI-TV-AM-FM 343 their own. The Employer, however, did not have the assistant chief engineers testify regarding their duties so that their authority has to be determined from the testimony of technicians working in the radio and television sections and that of management officials. From such testimony we find that both assistant chief engineers, Heerten and Pierce, are supervisors within the meaning of Section 2(11) of the Act. While the record shows that the assistant chief engineers lack authority to hire, discharge, lay off, promote, or adjust the grievances of other technicians (who like themselves hold first-class engineer licenses) it also shows that assistant chief engineers have full authori- ty responsibly to direct the work of other technicians in the respective radio and television sections of the engineering department. Thus, radio technician Smith testified that when he was hired by the general manager (Grisham) in the presence of Assistant Chief Engineer Heerten and the then Chief Engineer Sanderson, he was told by Grisham that his "immediate boss" would be Heerten and "if I had any problems concerning my job, the description of my duties, my scheduling, or anything of that nature, that first to go to Mr. Louis Heerten who was my immediate supervisor." Smith further testified that Heerten regularly prepared his work schedule, and has posted memoranda changing his shift from his regular work schedule when there is need for him to cover remote broadcasts away from the station and special events. Smith also testified that to switch work assignments with other employ- ees requires his assistant chief engineer's approval, and that his requests for time off are also directed to Heerten for approval. Kyle, a television technician hired by present Chief Engineer Gross, testified that he was introduced to Assistant Chief Engineer Pierce by Gross and was told, "this is your supervisor. If you have any problems to come to him, if you're sick, call him, if you have any problems or questions he'll be glad to help you with it." Kyle testified that his normal work schedule is posted by his assistant chief engineer and that in trouble or emergency situations his responsi- bility is to communicate promptly with Pierce and obtain necessary assistance. In addition to the above, it is clear from the record that both radio and TV technicians normally file discrepancy reports when a broadcast operation is not properly carried out and that assistant chief engineers in such sections have the responsibility of questioning the technician originating the report to determine the reason for the faulty operation and to correct the unsatisfactory condition. Assistant chief engineers check for accuracy all timesheets submit- ted by technicians and have authority to schedule work for them on ordinary off days, when station operations require. Assistant chief engineers post written schedules for all necessary technical mainte- nance work by radio and television technicians, and check such work to see that it is properly performed. Further, they assign particular technicians as the workload or nature of developing events may require in day-to-day station operations. Chief Engineer Gross, when questioned concerning the authority of assistant chief engineers, testified on cross-examination that their normal function is to assist and supervise the technical operations of the engineering department and to "take over" his job during his periodic trips to remote relay stations of the Employer, acting as chief engineer in his absence. His testimony also corroborates that of radio and television technicians that they have, upon being hired, been informed by him that they are to function subject to the direction of the assistant chief engineers in their respective sections of the depart- ment, and that they are required to follow the directions they receive from the assistant chief engineers. In view of the foregoing, we conclude that assistant chief engineers in both the radio and television sections of the engineering department unit are supervisors within the meaning of Section 2(11) of the Act. We therefore exclude them from the unit.2 The further question to be decided is whether two projectionists in the television section are to be excluded from the unit at the request of the Employer, which contends that they are not as highly skilled as the other technicians and therefore should be excluded. In this regard the Employer calls our attention to the fact that the projectionists have only third-class licenses whereas technicians included in the unit have first-class licenses. While the record shows that the projectionists cannot make certain technical adjustments to the television transmitter in the television section where they work, or sign the station's transmitter log, it also shows that they perform virtually all other functions of television technicians who hold first-class engineering licenses. Thus, the projectionists perform such duties as loading film, slides, and video tapes in proper sequence, handling shading shifts to maintain proper projection quality in transmission, and a full range of station maintenance work. We find on the basis of the above evidence that the two television projection- ists have a sufficient community of work interests with other technicians in the engineering department to warrant their inclusion in such unit. In any event, since, by agreement of the parties, the projectionists were included in the unit for which the 2 Duveroy & Sons, Inc, 177 NLRB 538, Central Machine & Tool Workers, 171 NLRB 1080 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was certified, and since no statutory provision or policy requires their exclusion therefrom, as in the case of the assistant chief engineers dealt with previously herein, we find that the projectionists should not be excluded from the present unit. For it is well established that the scope of the unit in a decertification election should be coextensive with the certified or recognized bargaining unit.3 On the basis of the foregoing evidence, we find that all employees employed by the Employer in the engineering department of its radio and television facility, WAPI-TV-AM-FM, Birmingham, Alabama, including television projectionists, but excluding assistant chief engineers, office clerical employees, production employees, guards, and other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. [Direction of Election and Excelsior footnote omitted from publication.] 3 Booth Broadcasting Company, 134 NLRB 817, 822, The Illinois Canning Co, 125NLRB699