Westinghouse Broadcasting Co., Inc.

WESTINGHOUSE BROADCASTING CO 123 Westinghouse Broadcasting Company, Inc. (WBZ-TV) and Directors Guild of America, Inc., Petitioner. Westinghouse Broadcasting Company, Inc. (WJZr-TV) and Directors Guild of America, Inc., Petitioner. Cases 1-RC-13147 and 5-RC-8865 November 26, 1974 DECISION AND DIRECTION OF ELECTIONS By MEMBERS FANNING, JENKINS, AND PENELLO Upon a petition duly filed on February 13, 1974, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in Case 1-RC-13147 before Hearing Officer Francis X. McDo- nough of the National Labor Relations Board on March 6-8 and 26-28, 1974. Following the hearing and pursuant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director of Region 1, this proceeding was transferred to the Board for decision. Upon a petition duly filed on February 14, 1974, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in Case 5-RC-8865 before Hearing Officer Jacquelyn J. Gard- ner of the National Labor Relations Board on March 20 and 21 and May 1 and 2, 1974. Following the hear- ing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Direc- tor for Region 5, this proceeding was transferred to the Board for decision. The Employer and the Petitioner filed consolidated briefs for both cases.' 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 Hearing Officers' rul- ings made at the hearings and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in these proceedings 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.' i The Petitioner requests and the Employer opposes formal Board consoli- dation of these cases We find and conclude that the similarity of issues in fact and at law justifies joint consideration and determination The cases are hereby consolidated. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. As to the appropriate unit, there is no history of collective bargaining for the employees sought to be represented here. In Case 1-RC-13147, the Petitioner seeks to represent a unit of all staff and freelance pro- ducer/directors, associate directors,' and assistant directors employed by the Employer at its television station, WBZ-TV, in Boston, Massachusetts. In Case 5-RC-8865, the Petitioner seeks to represent a similar unit of all staff producer/directors and all others doing the work of directors employed by the Employer at its television station, WJZ-TV, in Baltimore, Maryland. The Employer contents that the proposed units are inappropriate for collective-bargaining purposes be- cause all employees to be included therein are supervi- sors and/or managerial employees. The Employer, an Indiana corporation with its prin- cipal office in New York City, owns and operates television stations WBZ and WJZ as members of its nationwide Group W broadcasting system. The sole product of each station is broadcast programming, aired to the public approximately 18-21 hours daily. Each station's broadcast schedule includes a mix of network (NBZ is an NBC affiliate; WJZ is an ABC affiliate), syndicated, and locally produced programs. The chain of command and functional organization at WBZ and WJZ are essentially the same. The ulti- mate daily responsibility for running each broadcast facility belongs to the general manager, to whom the five departmental managers report. A program depart- ment, under the supervision and control of the program manager and his subordinate, the executive producer, is responsible for the presentation of all programs of local origin. The program department is subdivided into four departments at WBZ and five departments at WJZ. One subdivision, the production department, in- cludes the unit employees at issue here: 8 producer/di- rectors and 5 assistant directors among approximately 23 department employees at WBZ; 6 producer/direc- tors among approximately 24 department employees at WJZ. A production supervisor is in charge of produc- tion department operations. Producer/Directors 2 The Employer declined to stipulate the Petitioner is a labor organization In light of the Board's decision in Directors Guild of America, Inc., 198 NLRB 707 (1972), enfd 494 F 2d 692 (C A 9, 1974), and the record evidence that this organization is created for the purpose of representing employees in the television industry in collective bargaining covering wages, rates of pay, hours of employment, or conditions of work, we find and conclude that the Petitioner is a labor organization within the meaning of the Act 3 There are currently no freelance producer/ directors or associate direc- tors at WBZ, although there have been employees so designated in the past 215 NLRB No. 26 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Producer/directors are primarily involved in the presentation of local programming, which consists of news, sports, and regular features or "specials" in the areas of public affairs, community interest, and chil- dren's entertainment. Responsibilities in network or snydicated programming are limited to routine moni- toring, or "control producing" functions, and WBZ, occasional editing of motion picture films. The pro- gram manager assigns producer/directors to specific programs and the production supervisor schedules their workweek. For certain shows the producer/direc- tor, as the title implies, serves as both producer and director. For other projects, most notable newscasts, there is an independent producer and the producer/di- rector is limited to directorial duties. Most producer/ directors are involved in more than one program. As a producer engaged'in the planning stage of a production, a producer/director exercises the greatest influence on program content when assigned to the development of proposals for entirely new productions or remote location broadcast variations of established shows. Anyone, station employee or outsider, can pro- pose a telecast to which a producer/director may subsequently be assigned as producer. The develop- ment of a program proposal typically involves: prelimi- nary consultation with the idea's progenitor and pro- gram department supervisors; outlining the anticipated format of the show and indicating staff, set, and budget requirements; subject to the prior approval of superi- ors, production of a "pilot" program; and, subject to final approval, inclusion of the production in the broad- cast schedule. If the producer/director is assigned to produce a show which is already a regular station feature, an established production pattern sets the parameters within which that person must work. Under these cir- cumstances, producer has routinely collaborated with the program's on-screen "talent" in planning sessions, booked paid and unpaid guests for appearances on a show, and successfully recommended or independently initiated variations in set, script, style, and location. Very few programs have a fixed supplemental budget, and any expenditures against such budgets by pro- ducer/directors are subject to prior authorization. When the producer/director is acting as director, he or she is concerned with the technical demands and audio-visual aesthetics of a production. Several written or implicitly understood guidelines affect the director's role. A production manual (all Westinghouse news- cast) or customary production pattern (many sports telecasts, talk shows) standardizes the presentation of several programs and limits technical variations in set construction, camera angle and movement, selection and sequence of camera shots, lighting, sound, color, and artwork. A producer/director may have had origi- nal input in devising the standard production mode. A commercial log, prepared by another department at the station, lists the number and length of local commer- cials to be inserted in each program of the entire broad- cast day. A format, generally elaborated into a com- plete script, details the substance, timing, and sequence in which all program material, including commercials, is to be presented. The director works in concert with talent, any sepa- rate producer, assistant directors (either a person of that title or a fellow producer/director), and whatever number and kind of studio production personnel are required for a particular program. Prior to the actual taping of a live broadcasting session, the director re- views the script or format and informs the producer of any difficult or unfeasible aspects to the show. Or- dinarily, the director may not overrule the producer regarding a matter of program content. The director then instructs the studio technical crew, either in- dividually or collectively, regarding light and camera positions, set construction, audio requirements, and the timing and procedure to be followed while in produc- tion. If film or sound cartridges and visual print over- lays are to be used, the director must be sure such items are in the specified sequential order in the appropriate technical hands. During on-camera production of a show, the director is stationed in a control room before a bank of switches and television monitors, each screen representing the view from a different camera. The director is in charge of "switching," electronically shifting the recording or broadcast signal between monitoring screens and thus deciding which among alternative camera views actu- ally becomes the program picture. The director also communicates with all members of the technical studio crew, a floor manager, and the producer, all of whom have a.script. While the cameras are activated, a direc- tor speaks to talent through the floor manager, who cues the talent on stage by hand or voice signals. Typi- cal instructions for the director to the production crew include telling the appropriate technician to: activate or shut off light and sound stage equipment; start or stop tape machinery and audiovisual projection devices; take certain camera shots; and, adjust the audiovisual quality of the broadcast picture as monitored in the control position. It is clear from the record that in normal circum- stances producer/directors at WBZ and WJZ do not have supervisory authority "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or. discipline other employees . . . or to adjust their griev- ances, or effectively to recommend such action" within the meaning of Section 2(11) of the Act. The authority to effect personnel changes, including change involving producer/directors, is vested in the station's general WESTINGHOUSE BROADCASTING CO. 125 manager who often acts after consultation with the departmental manager in charge of the employees to be affected. The assignment of production crew members to particular programs on which a producer/director is working is the responsibility of the technical supervisor in the engineering department or the production super- visor, who is under no obligation to honor a produc- er/director's requests for the assignment of specific individuals to a crew. Although it is common practice for producer/ directors to make written or verbal re- ports to the production supervisor and program manager critically assessing individual job perform- ances in their production crews, the evidence fails to show that these reports have had any significant in- fluence on the station's personnel policy. There is evidence of a few isolated instances in which producer/directors at WBZ or WJZ have recom- mended the hiring, transfer, promotion, or discharge of an employee, and such action was ultimately taken. In all but one of those instances, the record is not conclu- sive as to whether action was taken by supervisors only after independent investigation of a producer/direc- tor's recommendation. In addition, producer/directors may occasionally work their production crews over- time, consistent with established policy to complete a program already in progress necessitates exceeding scheduled working hours. As to adjusting grievances, there is no evidence that WBZ producer/directors deal with the grievances of other employees. WJZ Produc- tion Manager Dooley testified generally that produc- er/directors at his station unofficially adjusted griev- ances, but cited only one specific example. We find that any participation by producer/directors in making or effectively recommending personnel decisions have oc- curred on a sporadic or irregular basis; the Board has held that it will not exclude persons as supervisors if they exercise supervisory authority only on such a basis.' Much confusion regarding the alleged supervisory authority of producer/directors stems from the natural implications of their job title. The presumption that a producer/director directs others is unavoidable. Such direction as is given, however, may not amount to re- sponsible direction within the meaning of Section 2(11). The Board has never considered titles as deter- minative of supervisory status. "The important thing is the possession and exercise of actual duties and au- thority and not the formal title."' In our opinion, producer/directors at WBZ and WJZ do not "responsi- bly direct" others in the performance of their duties. Prior Board decisions which have found that Produc- er/directors or directors do responsibly direct other 4 Meijer Supermarkets, Inc., 142 NLRB 513 (1963) 5 NLR B v Southern Bleachery & Print Works, Inc, 257 F 2d 235, 239 (C A 4, 1958) employees are factually distinguishable. The produc- tion roles of individuals considered therein typically involved authority tantamount to "full responsibility from the planning stage through the presentation on the air."' The responsibilities of producer/directors at WBZ and WJZ are far more circumscribed. Their ac- tivities are similar to those of producer/directors at another Westinghouse television station, KYW-TV, in Philadelphia. The Board has previously determined that producer/directors at KYW do not responsibly direct and are not supervisors.' Producer/directors in the present cases do instruct members of a production crew in preparation for and during actual filming of a television show. The instruc- tion given, however, is either routine in nature or moti- vated by artistic effect. It is clear that the producer/di- rector is limited by preexisting production policies or the detailed guidelines of a script. Under such condi- tions producer/directors use no independent judgment and serve merely as conduits in issuing orders which crew members, each supplied with a script, already anticipate and are independently capable of achieving. Other directions which describe a desired artistic effect may not contain the precise information necessary for their technical fulfillment. In fact, the producer/direc- tors are not themselves endowed with the technical expertise necessary to execute many of their own direc- tions. In this respect they are distinguishable from the typical plant supervisor who has risen from the ranks and possesses the same skills of those whom he may train and direct. The mere absence of close supervision by recognized station supervisors over individual production crew op- erations does not per se clothe a producer/director with the supervisory mantle. The same is true of the fact that during slack local production hours in late evening or on weekends all program department supervisors may be absent from the station while producer/directors remain. The Board finds greater significance in the routine or the artistic nature of the jobs performed by the producer/directors and their coworkers than in the absence of designated supervision.' Remuneration by the Employer is often an impor- tant factor in distinguishing between supervisory per- sonnel and employees. In this respect, we note the un- disputed testimony by producer/directors that senior technicans and crew chiefs, represented in their own bargaining unit, earn more per annum than themselves. 6 Great Western Broadcasting Corp. d/b/a KXTV, 192 NLRB 1203, 1204 (1971) 7 Westinghouse Broadcasting Company, Incorporated/KYW-TV, 209 NLRB 788 (1974), enfd F 2d (C A 2, 1974) (Case 4-CA-6581) B See Morris Weiss d/b/a Mook Weiss Meat Packing Company, 160 NLRB 546 (1966), where an alleged supervisor was merely a conduit for relaying instructions to experienced employees in the absence of an admit- ted supervisor 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, all producer/directors who testified did not consider themselves to be supervisors, in spite of what they may have been told by the station's manage- ment, and the evidence failed to indicate that any other employee considered producer/directors to be supervi- sors. We conclude from the entire record in these cases that producer/directors function not as supervisors, but as part of an integrated production team, each member of which is independently capable of executing his assignment. The role of the producer/director is therefore analogous to that of radio newsroom editors in relation to local reporters and to newscasters. In another Board case it was decided: . . . the excellence and great responsibility re- quired of the editors involves only their obliga- tions with respect to the development of their own work product and how it fits into the formulation of the broadcast schedule and the station's scheme of operation, and not with respect to the direction or control of the activities of other employees. Consequently, it does not reflect supervisory status.9 Having concluded that producer/directors are not supervisory, we must briefly consider the Employer's alternative contention that they are managerial em- ployees and as such must be excluded from a Board representation election.10 The Employer alleges, and we do not dispute, that: producer/directors have been told they are managerial; they participate in the sta- tion's community ascertainment program, which is re- quired by the Federal Communications Commission; they discuss program policies with supervisors in weekly production meetings; they occasionally distrib- ute policy statements of their own composition; they have limited censorship responsibilities in film editing or during tape-delay broadcasts; and they are responsi- ble for the "look of the show."" None of the above activities, however, indicates managerial status within the meaning of the Act, unless they involve the exercise of discretion independent of a superior's approval of the Employer's established policy.12 The record indicates that any involvement by pro- ducer/directors at WBZ and WJZ in the formulation or effectuation of station management policies is sub- ject to the approval of undisputedly managerial per- sonnel, such as the general manager, program man- ager, and executive producer. These same individuals control the station's purse strings, as is clearly illus- trated by the fact that deletion of commercial time in baseball telecasts or any pledge of the Employer's credit requires their approval. In addition, producer/ directors must adhere to established station policies expressed by the Westinghouse policy manual, FCC regulations, program production manual, depart- mental directives, and preconceived production prac- tices. We find that while producer/directors may exercise considerable discretion in executing their assignments, such discretion cannot exceed the bounds of policy determined by others. Therefore, we conclude producer/directors are not managerial. Assistant Directors There are five assistant directors at WBZ whom the Petitioner seeks to represent. These employees are paid weekly on an hourly wage scale. Russell Grant, an assistant director at the station for 15 years, makes $4.30, by far the top rate among assistant directors. The production supervisor supervises assistant directors and schedules their programming responsibilities. Assistant directors function in several capacities: (1) as control producers; (2) as floor managers; (3) as "grips," employed in studio set construction, mainte- nance, and removal; and (4) as assistants to the pro- ducer/director on a program, assuming the more per- functory production responsibilities. In addition, as- sistant directors occasionally perform duties identical to those of a producer/director. The record clearly does not support the Employer's contention that these employees are supervisors or managerial employees within the meaning of the Act. The discussion of the issues above applies as well to assistant directors when they operate as producer/di- rectors. All other assistant director functions are rou- tine and have no station policy effect whatsoever. Accordingly, we find that the following employees of the Employer at its television stations in Boston, Mas- sachusetts, and Baltimore, Maryland, constitute units appropriate for purposes of collective bargaining within the meaning of Section 9(c) of the Act: WBZ- TV All staff and free lance producer/directors, all as- sociate directors, and all assistant directors. 9 Post-Newseek Stations,, Capital Area, Inc., 203 NLRB 522 (1973) 10 NLR.B. v BellAerospace Company, Division of Textron, Inc, 416 U S 267 (1974). 11 As to collective bargaining , the only evidence of producer/ director involvement is that in the summer of 1973, WJZ Producer/ Director Keys attended a contract negotiation session as a back-row observer 12 See Eastern Camera and Photo Corp, 140 NLRB 569 (1963), General Dynamics Corporation, Convair Aerospace Division, San Diego Operations, 213 NLRB No 124 WJZ- TV All staff producer/directors and all others doing the work of directors, excluding all others. [Direction of Elections and Excelsior footnote omit- ted from publication.]