National Broadcasting Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Broadcasting Company, Inc. and National Association of Broadcast Employees and Techni- cians, AFL-CIO, Petitioner. Case 5-RC-9960 August 31, 1977 DECISION ON REVIEW AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On April 22, 1977, the Regional Director for Region 5 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit consisting of all staff and freelance mobile messengers employed by the Employer at its Washington, D.C., locations.' Thereafter, in accor- dance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's Decision, claiming that the Regional Director erred in finding appropriate a unit confined to the mobile messengers inasmuch as they constitute but a fragment of the Employer's unrepre- sented office clerical work complement. Petitioner filed a statement in opposition to the Employer's request for review. By telegraphic order dated May 19, 1977, the National Labor Relations Board granted the Em- ployer's request for review and stayed the election pending decision on review. 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 considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer is engaged in radio and television broadcasting and maintains three facilities in Wash- ington, D.C., for these purposes. At its main facility, the Employer operates one television and two radio stations and maintains offices and personnel for four operating divisions (television network, owned televi- sion stations, radio, and news) and one staff division (employee relations). A second office located in the downtown area of the city serves as headquarters for the Employer's government liaison function. The third location contains facilities for the local radio operation as well as administrative offices for certain other personnel. There are approximately 600 employees located in the Washington area, of which 375 are represented by various labor organizations. Of the remaining unrepresented employees, 131 are nonsupervisory ' Petitioner's original unit request also included the position of dispatcher/film coordinator. However, the parties stipulated at the heanng that this position is a supervisory position. 231 NLRB No. 155 office clerical employees. Petitioner seeks to repre- sent three staff and six freelance mobile messengers employed within the news division. News division personnel are responsible for the coverage of news events for broadcast on the Employer's local and national network television and radio stations. In addition to the personnel who actually go on location to cover a news story, the news division employs various categories of clerical personnel, including researchers, production assis- tants, desk assistants, and secretaries. The mobile messengers work in an operating subdivision of the news division known as news administration. In addition to the mobile messengers, the following employees also work in news administration: a cost coordinator who prepares the news film payroll; a cost administrator who prepares payrolls other than for the news division; a supervisory film coordinator (Maurice Benjoar) who supervises the mobile mes- sengers in addition to his responsibility for news film equipment; a nonsupervisory film coordinator who performs various clerical functions for Benjoar; and a secretary who performs a wide variety of clerical duties. The mobile messengers are under the immediate supervision of Maurice Benjoar, who directs their work in accordance with the requirements of film assignment editors. The primary function of the mobile messengers is to transport news film and videotape to and from film and engineering crews on location in the area. They also pick up and deliver equipment in need of repair; obtain and return leased and rented vehicles as needed by the Compa- ny; deliver equipment, food, and cash advances to the news crews; and transport both local news personnel and out-of-town company personnel to news locations, government agencies, airports, and hotels. In addition to their duties for the news division, they also perform services for all of the Company's operations at all three locations, thus transporting various types of materials as well as personnel among the three facilities. In the perfor- mance of their duties, the mobile messengers have frequent daily contact with various clerical personnel at all locations and in all divisions. The mobile messengers are also responsible for making a daily "airport run" which involves obtain- ing the film assignment sheet, which is the record of the daily news stories, and checking the tape and film to be delivered to New York against that sheet to insure that all tape or film is ready for shipment. The messenger is responsible for preparing a waybill and shipping label; transports the material to the airport for shipment; and is finally responsible for contact- 942 NATIONAL BROADCASTING CO. ing the New York office to inform them of the pending arrival of film and tape. Additionally, one of the mobile messengers makes a daily "mail run" from the main facility to the local radio station operation downtown. The mobile messengers spend approximately half of their time either driving a vehicle in the performance of their duties or waiting for an assignment which requires them to drive. In addition to their messenger work, the mobile messengers assist Benjoar and the other film coordi- nator in taking inventory of film and equipment; unload shipments of film and stock the supply room; and take phone calls for Benjoar, the other messen- gers, and film crews or reporters. Employees in other areas of the Company's operations perform duties similar to those of the mobile messengers. Desk assistants who regularly perform clerical tasks are called upon to perform delivery services whenever there are insufficient mobile messengers on duty. The record reveals that the desk assistant job description includes the performance of messenger duties, and that they are required to have a driver's license. Members of the page staff, who primarily perform internal delivery services and clerical duties, also deliver packages, reports, and other types of correspondence among the three locations. They also transport film, drive company personnel to and from airports and hotels, shuttle rental cars back and forth, and deliver food, cash advances and vouchers to personnel on loca- tion. Other employees who become involved in messenger work are sales service coordinators, production assistants, and traffic coordinators. In the radio station operation the driver of a promotional vehicle also delivers tape, packages, and other materials. The messenger/clerk in radio spends 75 percent of his time in driving, including making deliveries and transporting personnel. The messen- ger/clerk at the government liaison office acts as a chauffeur, delivers mail and packages, and drives approximately one-third of his time. All unrepresented staff clerical personnel share in the same fringe benefits to varying degrees. All are hired through the employee relations department and participate in an orientation program. All are salaried, work basically the same hours, are paid overtime on the same basis, and are paid biweekly. They are all subject to the same personnel policies and standards of conduct. All are entitled to utilize a central job-posting system to obtain positions that are vacant. The Employer employs freelance employ- ees throughout the company, including six of the mobile messengers requested by Petitioner. They share in the majority of the nonmonetary fringe 2 See R. B. P. Inc., d ba Royal Blue Print Conmpan. 166 NLRB 205 (1967). benefits, but do not, for the most part, share in such items as insurance, vacation and sick leave, and other compensatory-type benefits, although exceptions to this policy have been made where a freelance employee has been employed for a long period of time. Freelance employees are salaried, but are paid on a weekly basis at a lower wage rate than are staff employees. The position of mobile messenger does not require any special education, training, or experience. The only requirement is the possession of a valid driver's license. They are entitled to, and have utilized, the central job-posting system. The record shows that mobile messengers have transferred into other positions mainly in the news film area, where they have become laboratory assistants, assistant film editors, and members of film crews. One mobile messenger has become an engineer, and another progressed through various positions and eventually became an associate producer in the news division. On the basis of the above facts, the Regional Director found that mobile messengers have working conditions sufficiently distinct from the other unre- presented employees to warrant a finding that they could constitute a separate appropriate unit. The Regional Director, while noting the integration among employees in the various operating divisions and some functional integration among the work performed in these divisions, nonetheless considered the following factors to be controlling in his decision: the mobile messengers spend a substantial amount of time away from the office; they perform no secretari- al duties; they have more contact with film crews than with unrepresented clericals; and they receive their assignments from Benjoar, who supervises only the messengers. We are of the opinion that the Regional Director erred in finding appropriate a unit confined to the mobile messengers. We note particularly the high degree of integration among all functions and employees in the news division, which contains many clerical employees with whom the messengers have frequent contact. Additionally, there is a high degree of functional integration among all of the Employer's operating divisions and the messengers have frequent contact with employees in those divisions.2 More- over, all unrepresented clerical employees, including the mobile messengers, share a community of interest based on the similarity in working hours, benefits, and other terms and conditions of employment. Furthermore, the messengers do in fact perform various clerical duties in addition to their driving work, and Maurice Benjoar supervises employees other than the messengers. We also find it significant 943 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there are other unrepresented employees in various divisions who perform essentially the same duties as do the messengers. The only aspect of their work which is somewhat unique and which sets the mobile messengers apart from the majority of unrepresented employees is the fact that they spend a substantial amount of their time in driving a vehicle. However, aside from the fact that there are other employees who also spend a portion of their time driving, we do not think that this characteristic is sufficient to set them apart in the face of evidence as to the community of interest they share with other unrepresented employees. 3 Considering all the factors noted above, we are unable to conclude that a unit limited to the nine mobile messengers is appropriate for the purposes of collective bargaining. Accordingly, as the unit sought is too narrow in scope, and as Petitioner has expressed its desire not to participate in an election in a broader unit, we shall dismiss the petition herein. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: I do not agree with my colleagues' conclusion that the requested unit of mobile messengers is an inappropriate unit for the purposes of collective bargaining. Instead, I find that the mobile messen- gers have a community of interest that is sufficiently separate from the Employer's unrepresented clerical employees; hence, I would direct an election in the requested unit, as found appropriate by the Regional Director. The mobile messengers are engaged primarily in a driving function. They transport news film and videotapes between crews on location and the Employer's film processing section or the airport. They transport various types of equipment and materials as well as company personnel to news locations, government agencies, and other locations including the Employer's three facilities in Washing- ton, D.C. They spend approximately 50 percent of :' In this regard, see General Electric Company, 148 NLRB 811 (1964). 4 See Pacemaker Mobile Homes, a Division of Lonergan Corporation, 194 NLRB 742 (1971). I find that the cases cited by my colleagues are not controlling here. Thus, R. B. P. Inc., d/b/a Royal Blue Print Company, 166 NLRB 205 (1967), is factually distinguishable. There, the messengers spent in excess of half of their time in the plant moving production materials from one work station their time actually driving vehicles. Considerable additional time is spent waiting for the materials to be readied and for personnel that are to be transported. The mobile messengers are separately supervised by film coordinator Maurice Benjoar. When not driving or waiting for an assignment, the mobile messengers assist Benjoar in taking inventory of film and equipment and unload shipments of, and stock, film. The performance of their duties require the mobile messengers to spend a substantial part of their time away from the Employer's office; hence they have considerable contact with film crews and other personnel but little work contact with unrepre- sented clerical employees. They perform no secretari- al duties such as typing or filing. Although unrepresented clerical employees such as desk assistants and pages perform some duties similar to the mobile messengers, it appears that these duties are incidental to other clerical duties and that they are performed on a limited basis. Thus, the driving function of the mobile messengers, which can scarcely be characterized as clerical duties as that term is commonly used, sets apart the requested unit from the Employer's unrepresented clerical employ- ees. As the Board has frequently noted in situations where no labor organization is seeking a unit larger or smaller than the requested unit, the sole issue is whether or not the requested unit is an appropriate unit.4 In concluding that a unit of mobile messengers is an appropriate unit, I rely in particular on the functionally distinct driving duties of the mobile messengers coupled with the fact that they spend a substantial amount of time away from the office. As a consequence, they have more contact with employ- ees of the Employer other than the unrepresented clerical employees and they perform only on a limited basis duties associated with certain clerical employees. Under these circumstances, I conclude that the mobile messengers have a community of interest sufficiently separate so as to warrant a finding that they constitute an appropriate unit for the purposes of collective bargaining. to another. This and other adjunct production duties made it clear that the messengers performed an integral role in the employer's production process. Similarly, General Electric Company, 148 NLRB 811 (1964), is materially different because there only 5 of the 37 employees in the requested unit spent a majority of their time in driving and the others spent a majority of their time in clerical duties similar to other office clerical employees that the petitioner sought to exclude. 944