The Taft Broadcasting Co.

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Taft Broadcasting Company' and Local 71, Inter- national Brotherhood of Electrical Workers, Peti- tioner. Case 9-RC-11423 October 20, 1976 DECISION AND DIRECTION OF ELECTIONS By MEMBERS FANNING, PENELLO, AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Raymond D. Neusch. After the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, this proceeding was transfer- red to the Board for decision. Both the Employer and the Petitioner have filed briefs. 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. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free of prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer, a Delaware corporation with principal offices and place of business in Cincinnati, Ohio, is engaged in the operation of a broadcasting facility, WTVN-TV, at a Columbus, Ohio, location. During the 12 months preceding the hearing, a repre- sentative period, the Employer had a gross volume of business in excess of $100,000, and purchased goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Ohio for shipment to its Columbus, Ohio, location. The Em- ployer admitted that it is engaged in commerce with- in the meaning of the Act and we find that it will effectuate the purposes of the Act to assert jurisdic- tion in this proceeding. 2. The labor organization involved is a labor orga- nization within the meaning of the Act. 3. A question affecting commere exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner, Local 71 of the International Brotherhood of Electrical Workers, seeks a unit, as further defined by the stipulations, comprising all employees employed by the Employer at WTVN-TV in Columbus, Ohio, including employees in the news, traffic, production, accounting, film editing, and con- 1 The name of the Employer appears as amended at the hearing tinuity departments, including floor directors, but ex- cluding guards, salesmen, technicians in the existing bargaining unit, professional employees, and supervi- sors as defined in the Act. The Employer asserts that a unit combining office clerical employees with employees directly involved in producing, presenting, and transmitting broad- casts is not appropriate, and that only two separate units are appropriate. The production unit would consist of all employees who are directly involved in or contribute to the production, presentation, or transmission of programs, including reporters, pho- tographers, the lab technician, artists, the production assistants, the floor managers, the news anchor per- sons, staff announcers, weather person, sports direc- tor, and the film editors, but excluding all profession- al employees, technical employees, confidential employees, clerical employees, salesmen, guards, and supervisors as defined in the Act. The other unit would be composed of the clerical employees, includ- ing the national sales coordinators, program coordi- nator, operation clerks, billing clerks, the driver, the receptionist, the programming assistant, the continui- ty director, and the bowling show secretary, but ex- cluding all professional employees, technical employ- ees, production employees, confidential employees, salesmen, guards, and supervisors as defined in the Act. Although the Petitioner seeks an overall unit, it is willing to represent any unit found appropriate by the Board. It does not contest the Employer's identi- fication of clerical and production employees and their unit placement, save, of course, that it would include them in one unit. Technicians employed in the engineering depart- ment are currently represented by the Petitioner as successor to Radio Broadcast Technicians Local 1300 with which it has merged. Employees who ap- pear on the air were represented at one time by the Columbus-Dayton Local American Federation of Television and Radio Artists which has relinquished any claim to representation. The record does not in- dicate any other history of collective bargaining. The Employer is organized into six overall depart- ments, one of which, engineering, is currently, repre- sented and neither party would include it in any unit here. The remaining departments are sales, promo- tion, business, news, and programming. Of these five departments, only two-programming and promo- tion-include both clerical and production employ- ees. Sales includes employees who sell, maintain rec- ords, perform secretarial duties, and work with a computer. The daily log, which records when pro- grams, commercials, announcements, etc., are to be aired, is kept by employees in the sales department 226 NLRB No. 87 TAFT BROADCASTING COMPANY under the supervision of the traffic manager. Busi- ness department employees are concerned only with the Employer's financial transactions and do billing and accounting work. All employees in the news de- partment are concerned with production and work as reporters, photographers, anchor persons, sports di- rector, or weather person, or write scripts and oper- ate devices used for production. The promotion de- partment promotes the station and the individual shows which appear on the station and includes an art department with two artists, as well as an assis- tant to the promotion manager. The assistant sched- ules promotions on the air, entering them into the bias computer system, and writes some promotions, as well as drafting some correspondence for the pro- motion manager and typing his correspondence. The art department is under the promotion direc- tor in a separate office. The artists are responsible for all commercial art which appears on the air and, ap- parently, have little or no contact with the promotion assistant. The remaining department is "program- ming" which consists of various clericals, guard, driv- er, and a maintenance employee who work directly under the program manager, as well as employees who work under the production manager or the film director preparing programs to be shown on the air. The program department is responsible for seeing that programs, commercials, etc., are aired appropri- ately and the program manager is also responsible for "talent" and live programming outside the news department. The clerical employees are not directly involved in the production process and have separate immediate supervision and different work interests. There is no evidence of temporary interchange between the two groups, and their functions are dissimilar. Thus while the duties of the clerical employees are similar to those which might be found in any clerical unit, typ- ing, filing, billing, etc., those of the production em- ployees are specialized for the industry. The latter are functionally integrated with the common goal of pre- sentation of the product on the air, while the former, the clerical employees, are primarily concerned with the business aspects of the'Employer's work. We find that the clerical employees lack a sufficient commu- nity of interest with the production employees to be included in the same unit for the purposes of collec- tive bargaining, and shall direct elections in separate units .2 Although the Employer and the Petitioner have stipulated the exclusion of certain supervisors and confidential employees, the supervisory, confidential, or professional status, or community of interest, of 2 The Outlet Compai y, 218 NLRB 21 (1975). 541 certain other individuals is contested. Thus, the Em- ployer would include the host of its bowling shows, Dick Schorr. The Petitioner would exclude him. Schorr is "free-lance talent" under contract to per- form six bowling shows each week; two live and four taped. He works at the station 15 to 20 hours each week but is paid a flat fee under contract for the shows regardless of the amount of work involved. The contract is not exclusive and Schorr also hosts bowling programs for other employers in St. Louis and Philadelphia. Although the Employer contends that Schorr is eligible for certain fringe benefits, the portion of the record it relies on does not support that claim. Schorr is the Employer's only free lance employee, his salary is determined by his individual contract, and the record does not establish that he enjoys the fringe benefits available to other employ- ees. He does not'share a community of interest with other employees. Accordingly, we do not include him in either bargaining unit. Although the parties stipulated the exclusion of the production manager as a supervisor, Production Manager John McGlone was replaced by Robert Weesner during the hearing. There was no testimony about Weesner's duties and the parties could not agree whether he was the production manager or merely acting production manager. The position is excluded. Whether Weesner is "production manag- er" cannot be resolved on this record. Therefore, he may vote subject to challenge. Robert Aaron, the assignment editor, assigns pho- tographers and reporters to news stories. The Em- ployer believes that he exercises discretionary au- thority as a supervisor and would exclude him from any unit, while the Petitioner argues that he does not and would include him. A witness called by the Peti- tioner, Jim Kenyon, testified that assignments are based on practice rather than discretion and that as- signments made by the assignment editor may be dis- cussed and modified. However, the burden of his tes- timony was that ^ the assignment editor makes the final decision. Aaron determines which stories will be covered, how extensively, and by' whom. He is re- sponsible for moving people" around to get maximum coverage, is authorized to recommend discharge, evaluates employees,; and may keep' employees over- time or call in additional employees. We find that Aaron is a supervisor. The Employer asserts that Mike Crews, hired as a producer during the hearing, is a supervisor. Howev- er, although agreeing that in the past the executive producer has been a supervisor, the Petitioner be- lieves that changes in the Employer's management structure may have affected, the duties involved and, therefore, requests that Crews vote subject to chal- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lenge. We find merit in the Petitioner's argument. Al- though the record is sufficient to establish that the position of executive producer had been supervisory, Crews was hired as a producer, not executive produc- er. The acting news director testified only that Crews possibly could be promoted to executive producer af- ter he had been- on the job a number of months. Crews may vote subject to challenge. The Employer has two full-time directors, Don Watkins and Paul Ogle, who it contends are supervi- sors. Watkins and Ogle work from a prepared script and do not determine the content of a program, but rather the manner in which it is presented. On the air, the director is in charge, cueing and coordinating the employees involved. However, the director's authori- ty, and direction of other employees, is more artistic than supervisory. Directors coordinate the jobs of the other employees during a show, but do not hire, fire, or effectively recommend those personnel actions. A director may warn another employee, but only that the employee may be reported to an individual with disciplinary authority. Directors do not determine the identity of the crew with which they work; and, although they may request a change, the decision is made, by others. Any recommendations a director may make concerning other employees are informal. The record does not demonstrate that they responsi- bly "direct" employees as that term is used in Section 2(11) of the Act; there is no evidence that they tell other employees how to perform the details of their jobs, or that they would be competent to do so. We find that they are not supervisors within the meaning of the Act.' James Bell is also thought by the Employer to be a supervisor, or a professional employee, who should be excluded from any unit found appropriate. Bell had no accounting experience before working for the Employer and has no college degree, but he had at- tended Columbus Technical Institute for 4 or 5 years and, at the time of the hearing, was about to be grad- uated. According to David Laughlin, business man- ager, Bell, one of five accounting clerks and his assis- tant, performs some functions which extend beyond bookkeeping and require accounting judgment. However, the record falls short of establishing that Bell's work is other than predominantly routine and that it requires the consistent exercise of discretion. It is not sufficient that Bell, on occasion, may exercise such judgment. We find that he is not a professional employee. 3 Westinghouse Broadcasting Company, Inc, (KDKA-TV, Channel 2), 216 NLRB 327 (1975), and cases cited therein Great Western Broadcasting Corp d/b/a KXTV, 192 NLRB 1203 (1971), on which the Employer relies, in- volved producer-directors who "responsibly direct[ed]" employees in shows for which they had full responsibility from planning through presentation The Employer also argues that Bell is a supervisor. While Bell does not assign work, and, apparently, ,spends the major part of his time performing rank- and-file work, 35 percent of his work is composed of reviewing and correcting the work of others. Bell, ac- cording to his superior, Laughlin, evaluates employ- ees and one employee was discharged directly as a result of Bell's recommendation. No further investi- gation was made because, according to Laughlin, that was Bell's responsibility. We need go no further. Since Bell can effectively recommend discharge, he is a supervisor. Certain employees are identified by the Employer as confidential in addition to those whose exclusion on that basis was stipulated by the parties. Confiden- tial employees are those who assist and act in a confi- dential capacity, to persons who formulate, de- termine, and effectuate labor policies.4 In the case of Ada Scott, the engineering secretary, the Petitioner agrees that she should be excluded. Scott is secretary to the chief engineer, who participates in labor nego- tiations, and among other duties has typed notes from strategy sessions held to determine the Employ- er's bargaining position during negotiations with the representative of the engineering unit. She is exclud- ed as a confidential employee. Monica Smith, executive sales secretary, would also be excluded by the Employer as confidential secretary to General Sales Manager George Coles. Smith is also secretary to five salesmen and her prin- cipal duty is taking messages for the salesmen, for whom she also types, in addition to typing Coles' ,correspondence. Unlike the Employer, we see no similarity to Pullman Standard Division of Pullman, Incorporated, 214 NLRB 762 (1974), which excluded employees who estimated future labor costs and thus were privy to the amount their employer would con- cede in wages and benefits during negotiations. The Employer bases its comparison to Pullman on Smith's typing of "confidential reports . . . dealing with restructuring the sales and traffic department." That seems to be a reference to Coles' testimony that 2 years earlier he had "influenced the restructuring," apparently by recommending that he not be required to travel. No evidence is advanced which suggests that Smith has access to confidential budget esti- mates relating to labor relations as did the excluded Pullman employees. Smith's typing confidential per- sonnel evaluations for Coles does not require her ex- clusion, and, as the record does not otherwise sup- port the claim that she is a confidential employee, she is included in the clerical unit.' 4 The B F Goodrich Company, 115 NLRB 722 (1956) 5 Curtiss-Wright Corporation, 63 NLRB 207 (1945), which the Employer also relies upon , bears no meaningful relation to the facts advanced by the Employer in support of its position here, and was decided before the TAFT BROADCASTING COMPANY Similarly, the Employer's argument that Joyce Redd, payroll clerk, must be excluded as confidential is not adequately supported by the record. Redd maintains personnel files containing employment ap- plications, raises, and insurance; computes gross compensation upon which a profit-sharing bonus is based; and prepares the payroll. Access to personnel files does not require an employee's exclusion from a bargaining unit as a confidential employee .6 The con- tention that Redd has access to budgetary and cost allocation estimates is not established by the portion of the record the Employer relies upon and, in any event, would not require her exclusion without more. The Employer has not established that she is a confi- dential employee and she is included in the office clerical unit. The Employer would also exclude Barbara Thom- as, secretary to the program manager, because she types discipline reports on employees and performs "confidential labor relations secretarial duties for Vice President and General Manager von Stade." Neither Thomas' familiarity with disciplinary action against other employees nor her sporadic work for von Stade for less than once a month requires her exclusion as a confidential employee. There is noth- ing to indicate that she has ever assisted von Stade in a confidential capacity or in any manner bearing on labor relations. She is included in the office clerical unit. Victor Industries, Corp., supra. Steve Torgenson is a high school cooperative stu- dent employed part time in connection with a school program for which he receives credit. The record does not indicate any likelihood that his employment would continue and the Employer asserts that coop- erative students are terminated upon completion of the program. We find that Torgenson has no reason- able expectation of continuing employment and lacks sufficient community of interest to be included in a bargaining unit with other employees. Accord- ingly, we exclude him as urged by the Employer. The Petitioner indicates that it is willing to repre- sent the maintenance superintendent and "the part time employee" working under him. "Part time em- ployee" apparently refers to Donald Anderson, whom the Employer would exclude as a casual em- ployee. Anderson works 4 hours a week at the trans- mitter site at his convenience and on an irregular on call basis at the station primarily performing yard- work during the summer. Anderson receives no Board's reexamination of its policy on confidential employees in Ford Motor Company (Chicago Branch), 66 NLRB 1317 (1946) 6 Victor Industries Corporation of California, 215 NLRB 48 (1974). 543 fringe benefits and there is no indication that he reg- ularly comes into contact with unit employees; those at the transmitter site are technicians in the engineer- ing unit. In view of the intermittent and casual na- ture of Anderson's employment, the absence of regu- lar contact with unit employees, and the fact that he does not receive the fringe benefits accorded unit employees, we find that he lacks a sufficient commu- nity of interest and exclude him from both units. However, the remaining maintenance employee, or "superintendent," would be included by both the Pe- titioner and the Employer. Accordingly, he is includ- ed in the clerical unit. Both the Employer and the Petitioner would ex- clude Community Relations Director Liz Evans from any unit. Evans spends the majority of her time at the radio station, with which most of her work is concerned, and reports to its general manager. She has little contact with the television employees in the units here and, accordingly, we exclude her from both units because she lacks a sufficient community of interest. We find that the following units,'as further defined by the stipulations of the parties, are appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer at WTVN-TV in Columbus, Ohio, who are direct- ly involved in or contribute to the production, presentation, or transmission of programs, in- cluding reporters, photographers, the lab techni- cian, artists, the production assistants, the floor managers, the news anchor persons, staff an- nouncers, weather person, sports director, and the film editors, but excluding all professional employees, technical employees, confidential employees, clerical employees, salesmen, guards, and supervisors as defined in the Act. All clerical employees employed by the Employ- er at WTVN-TV in Columbus, Ohio, including the national sales coordinators, program coordi- nator, operation clerks, billing clerks, the driver, the receptionist, the programming assistant, the continuity director, the bowling show secretary, and the maintenance superintendent, but ex- cluding all professional employees, technical employees, production employees, confidential employees, salesmen, guards, and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote omitted from publication.]