Kjaz Broadcasting Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ronald H. Cowan, d/b/a KJAZ Broadcasting Com- pany and American Federation of Television and Radio Artists, AFL-CIO, Petitioner. Case 32-RC-1795 21 September 1984 DECISION ON REVIEW, ORDER, AND DIRECTION OF NEW ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 27 April 1983 1 the Regional Director for Region 32 issued his Decision and Directibn of Election finding appropriate the requested unit lim- ited to all on-air programmers On 9 May the Em- ployer requested review of the Regional Director's decision, contending that his unit determination was erroneous The election which had been scheduled for 31 May was held in the unit found appropriate by the Regional Director, and the bal- lots were impounded On 29 July, the Board (Member Zimmerman dissenting) granted the Em- ployer's request for review Both parties filed briefs on review The Board has considered the decision and the entire record in light of the request for review and briefs and has decided to affirm the Regional Di- rector's findings, 2 but to reverse his conclusions, for the reasons which follow The issue is the composition of the unit appropri- ate for bargaining The Petitioner sought an elec- tion in a unit of "all on-air broadcasting employees including announcers, newspersons and reporters employed by the Employer" The Employer con- tended that given the size of its operation and its integrated nature the only appropriate unit consist- ed of all 26 employees, excluding a "casual" substi- tute programmer and a janitor The Employer, KJAZ, operates a 24-hour-a-day jazz radio station on which it sells commercial radio air time in a jazz format The sound of jazz is broken by commercials for sponsors, announce- ments of current jazz events, press releases, and special live broadcasts KJAZ occupies the entire second floor of a small building, a converted two- bedroom apartment, and employs 26 regular em- ployees 5 full-time and 10 part-time programmers, 5 salespersons, 2 traffic employees, a sales coordi- nator, a receptionist, a bookkeeper, and an engi- neer All employees are supervised by the general manager The programmers are almost exclusively responsible for the broadcast of "on-air" material and spend almost 50 percent of their time "on air" A majority of their air time, however, is spent per- 1 All dates refer to 1983 2 Attached, in pertinent part, as Appendix forming routine functions, such as operating turnta- bles and tape recorders, cueing records, reading and regulating certain equipment, and making log entries in compliance with FCC regulations The Regional Director found the requested unit limited to all 15 programmers to be appropriate be- cause it is "based on the recognized distinction for bargaining purposes in the radio industry between employees who do not appear on the air and those who do" In support of this finding, he noted that, in Hampton Roads Broadcasting Corp (WGH), 100 NLRB 238, 239 (1952),3 the Board found a separate unit confined to employees appearing before the microphone was appropriate because these "employees who regularly or frequently appear before the microphone constitute a homogeneous, readily identifiable cohesive group appropriate as a unit for collective bargaining" This decision was based on the finding that the on-air em- ployees possessed a talent—voice, diction and personality—which separated them from the other employees [Appendix, p ] In requesting review, the Employer contends that the Regional Director departed from officially reported Board precedent in adopting a per se rule that a unit of on-air programmers is entitled to sep- arate representation The Employer also contends that any presumed distinction between on- and off- air employees is rebutted by the factual record in this case which conclusively shows the absence of divergent or readily identifiable separate communi- ties of interest among its 26 employees After con- sidering the record, we agree with this contention 4 While it is true that programmers are almost ex- clusively responsible for the broadcast of "on-air" material, they spend 50 percent of their time off-air performing non-air tasks in conjunction with the salespersons, the traffic employees, and the sales coordinator While the sales staff is primarily re- sponsible for selling commercial air time, they also 3 Supplemental Decision and Second Direction of Election, amending 98 NLRB 1090 (1952) (Member Styles dissenting), after oral argument on motion for reconsideration before the full Board (Chairman Herzog and Member Murdock dissented from the reversal of the original decision ) Contrary to the Petitioner's contention, we do not regard the Employer's position in this case as requiring the Board to resuscitate the Board s earlier overruled decision in the first Hampton Roads case As quoted above, the Regional Director regarded Hampton Roads as based on a talent distinction between on air and all other employees, which we find outweighed by other considerations in this case 4 The Employer does not seek, and we do not intend, a broad ruling that all on-air announcers or disc Jockeys may not comprise an appro priate unit under proper circumstances" Such a determination depends on the specific facts Involved Compare the similar caveat in the second Hampton Roads case, 100 NLRB at 240, noting that that case did not hold that a unit of all programming department employees would in all circumstances be inappropriate" 272 NLRB No 21 KJAZ BROADCASTING CO 197 spend 50 percent of their time at the studio, write almost 75 percent of the advertising copy used by the programmers, and have frequent and daily con- tact with the programmers in producing the re- corded commercials to be aired 5 Although the sales coordinator performs sales and clerical-related functions, she also spends 50 percent of her time in various promotional activities involving the pro- grammers and acting as a liaison between the sales staff and the programmers Likewise, the two traf- fic employees spend 50 percent of their time with the programmers working on and editing "air copy," scheduling commercials, assigning program- mers to make commercials, and producing com- mercials Even the receptionist spends at least 2 hours a day with the programmers in writing, edit- ing, and placing the numerous public service an- nouncements that are broadcast on KJAZ The en- gineer and a full-time programmer are jointly re- sponsible for the purchase of all technical supplies used in the production of commercials Thus, the evidence clearly demonstrates that there is a close functional relationship among all employees, and that there is no clearly evident delineation of job duties or functions Thus, all non-programming employees, with the exception of the bookkeeper, are regularly in con- tact with programmers for the purpose of produc- ing commercials, editing copy, reworking sample tapes to be submitted to potential customers, com- piling the play list, recording the Employer's tele- phone announcements on current jazz events, issu- ing press releases, coordinating special appearances, booking the KJAZ Allstars, and printing the news- letter Regardless of job title, all employees are com- monly supervised by KJAZ' general manager, gen- erally compensated in the same amounts, 6 receive the same fringe benefits, and perform whatever tasks are necessary for the production of radio pro- grams and the selling of commercial air time 7 In its commitment to the jazz idiom, the Employer has historically hired only employees with an in- depth knowledge of jazz, 8 a "talent" shared by all its employees In sum, the record establishes that these on-air programmers do not share a substantial community of interest separate and apart from other employees of the Employer In the circumstances, the recog- 5 One sales representative spends 20 percent of his time taping his own commercials for on air use 6 In view of this fact, the differences in method of computing remu neration is immatenal 7 The small size of the Employer s operation both necessitates and makes possible some aspects of the commonality among all the employees here 9 The record establishes that the fundamental skill relied on by KJAZ in selecting a programmer is ' knowledge of the music" nized distinction for bargaining purposes between on-air and not-on-air employees has broken down 9 Accordingly, contrary to the Regional Director, we find that the only appropriate unit includes all of the Employer's employees 10 As the unit found appropriate is broader than the unit in which the election was conducted, we shall order that the election conducted on 31 May 1983 be vacated and shall direct an election' l in the unit found appropriate herein, as described below 12 All full-time and regular part-time employees employed by the Employer at its Alameda, California location, excluding casual employ- ees, the janitor, guards and supervisors as de- fined in the Act ORDER The election conducted on 31 May 1983 is hereby vacated [Direction of New Election omitted from publi- cation ] MEMBER ZIMMERMAN, dissenting I dissented from the grant of review of the Re- gional Director's Decision and Direction of Elec- tion, and now dissent from my colleagues' finding that a unit limited to the Employer's 15 on-air pro- grammers—disc jockeys and announcers—is inap- propriate for bargaining In concluding that the only appropriate unit consists of all of the Employ- er's employees, the majority has departed from well-established Board policy finding appropriate a separate unit of employees who regularly perform before a microphone in the radio and television in- dustries 1 I agree with the Regional Director that 9 Cf WTMJ AM FM-TV, 205 NLRB 36, 37 (1973), where the Board denied the appropnateness of separate representation for either dual func lion newsmen or the announcers who performed similar functions and dismissed AFTRA s petition for a unit limited to on-air newsmen, as It had not indicated a desire to proceed to an election in a broader unit 1 ° Contrary to our dissenting colleague's contention, our decision is not a departure from longstanding precedent As noted in Hampton Roads supra at 240, the question of the appropriateness of the unit is de pendent on the specific facts of each case" Our factual analysis of the instant case results in our conclusion that a separate unit of on air" em ployees is mappropnate In view of the Petitioner's sufficient showing of interest in the broader unit found appropriate, we have directed an election despite the fact that the Petitioner expressly reserved a decision on proceeding to an election in an alternative unit Should the Petitioner not desire to pro ceed, It may withdraw its petition by request to the Regional Director, with notification to the Employer, within 5 days from the date of this Decision on Review i2 The Regional Director found the substitute programmer is a casual employee The Regional Director also excluded the Janitor, and neither party has questioned this exclusion I See, e g, Hampton Roads Broadcasting Corp (WGH), 100 NLRB 238 (1952), WTAR Radio Corp, 100 NLRB 250 (1952), KPOJ Inc , 129 NLRB 727 (1960), Pulitzer Publishing Co, 203 NLRB 639 (1973) 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances presented here do not warrant a deviation from the rational and long-recognized distinction for bargaining purposes between em- ployees who appear on the air and those who do not My colleagues find that the presumptive appro- priateness of an all on-air employees' unit has been rebutted in this case by the facts that the program- mers spend 50 percent of their time off-air working closely with sales and administrative personnel, and that on-air and off-air employees have common su- pervision and roughly equal compensation It is neither surprising nor significant that a small radio station—such as the Employer—would have a par- tially integrated operation and that on-air perform- ers would spend a substantial amount of their time assisting other employees in off-air duties That has been the situation more often than not in the cases where the Board has found a separate unit of on-air employees While that integration may indicate the appropri- ateness of an all-inclusive unit, it does not follow that such a unit is the only appropriate unit That the programmers perform on the air sets them apart functionally and gives them a peculiar com- munity of interest not shared by the nonperforming employees Contrary to the majority's assertion, there is a clear delineation between the employees who work on the air, and those who do not For example, prospective programmers must provide the Employer with a sample tape, no other posi- tions at the station require an air check tape before hiring There have been no transfers from off-air to on-air jobs Because this is a 24-hour station, the programmers' work schedules are different from all other employees And, the fact that the program- mers spend about half their time in off-air tasks does not override the fact that they are the only ones who exercise on-air talent As the Board stated in Hampton Roads, 100 NLRB at 239 "when an employee regularly appears before the micro- phone, it is that factor, alone, and not his other duties, which gives rise to the community of inter- est which warrants his inclusion in the announcers' unit My colleagues place much weight on the fre- quent contact that the Employer's sales and traffic personnel have with programmers in the producing and scheduling of commercials and public service announcements Such contact, however, is simply a function of the sales and traffic employees' jobs, and does not alter the fact that those employees never perform on-air duties It is the performance of those on-air duties that establishes a substantial community of interest for the programmers sepa- rate from the other employees of the Employer My colleagues' decision here unsettles an area of the Board's unit policy which for many years has been stable and clear in its application They have done so despite the absence of any evidence that separate units of on-air employees have caused any undue problems in collective bargaining in the broadcasting industry or that the unique interests of on-air performers are not best served by such sepa- rate units The circumstances presented in this case do not justify such an action Accordingly, review having been granted, improvidently in my opinion, I would affirm the Regional Director's Decision and Direction of Election APPENDIX Footnote 1 from Regional Director's Decision and Di- rection of Election By its petition, Petitioner seeks to represent a unit of all on-the-air broadcasting employees including announc- ers, newspersons and reporters employed by the Em- ployer at its Alameda, California facility The Employer contends that only a unit consisting of all the employees at its Alameda, California facility excluding the Janitor and the substitute programer is appropriate The Employer, a sole proprietorship with a facility in Alameda, California, is engaged in the business of radio broadcasting and selling commercial advertising through radio broadcasting There is no history of collective bar- gaining at the Employer The Employer occupies the entire second floor of a small building that was converted from a two bedroom apartment The facility contains about 1,700 square feet and is divided into an on-air studio, a production studio, and two separate offices for the general manager and bookkeeper The remainder of the space, on "L" shaped area separated by partitions and partial walls is shared by all of the employees except the bookkeeper All of the employees share the same restroom facilities and parking lot The Employer has 26 full and part-time employees There are five fulltime programers, 10 part-time pro- gramers, five sales people, and six administrative-includ- ing the engineer In addition to the full and part-time programers there is a substitute programer She works on an "as needed" basis and has refused work in the past The fulltime programers are salaried employees and the part-time and substitute programers are paid on an hourly basis The fulltime programers earn between $15,000 to $20,000 per year The programers are the only on-air employees The station is on the air 24 hours a day which results in the programers working consecutive shifts Thus, the morning programer's hours are from 5 a m to 2 p m, the midday shift is from 11 a m to 7 p m to midnight, and the graveyard shift is from midnight to 6 a m The fulltime programers spend about 40 to 60 per- cent of their time on the air, or about 4 to 6 hours a day They also produce and record the commercials One programer helps produce the jazz notebook which is a tape of jazz events in the area This tape is played for KJAZ BROADCASTING CO 199 people who phone the station Another programer orga- nizes on-the-air interviews with jazz stars who are ap- pearing at local clubs The programers choose their own music and must fit it into a daily log The daily log is prepared by two employees who share the traffic posi- tion and is a listing of public service announcements and commercials which must be read The programer then has the discretion to play whatever music he desires within that framework Four of the programers are mem- bers of the KJAZ Allstars band with the two traffic em- ployees The KJAZ Allstars band is the station band It is a goodwill emissory of the station The station charges a relatively low fee, but only a regular advertiser would be able to obtain the band's services The band members split the fee, and in addition they earn compensatory time off if the band plays outside their normal hours of work The programers are the major contributors to the station newsletter, which is a monthly publication They also compile the playlist which is a list of the most fre- quently played albums This list is distributed to advertis- ers and commercial outlets in the area The part-time programers spend three to seven hours per week on the air and work on a regular basis When programers are interviewed for a job at the station they must provide the general manager with a resume and an air check tape They are expected to have an indepth knowledge of jazz, although the Employer is not interested in having programers with particular personalties as it feels that jazz music is its product, not the programer No other positions at the station require an air check before hiring, although almost all of the employees are jazz en- thusiasts All of the employees who work more than 20 hours per week receive full benefits, including medical and dental benefits, vacation and sick leave The Em- ployer has announced a profit sharing plan for all em- ployees, participation to be based on seniority, but to date there has been no profit to share In addition to the programers there are five sales people, and the administrative positions, which include a bookkeeper, receptionist-secretary, two people job shar- ing the traffic position, the engineer and the sales coordi- nator The sales people are salaried based on $500 per month draw plus commissions, and their earning are in the $15,000 to $20,000 per year range They spend ap- proximately 50 percent of their time away from the sta- tion visiting clients and the remainder at the station help- ing to produce commercials Their hours of work are from 8 30 a m to 5 30 p m There is one sales person who records his own commercials but he never appears on-the-air live The engineer is a fulltime salaried posi- tion His working hours are from 10 a m to 7 p m, al- though he is on call for 24 hours a day He is in charge of the maintenance and repair of the equipment and is re- quired to have a first class FCC license The engineer earns $24,000 per year The bookkeeper, who has her own office, is a salaried employee whose salary is also in the $15,000 to $20,000 range Her hours are from 10 a m to 7 p m, and her duties include billing clients and keeping the payroll records She is also the benefit specialist The bookkeep- er is the only employee, in addition to the general man- ager, who has access to the personnel files These files contain each employee's application, resume, log of sick and vacation time and medical benefits received They do not contain any formal evaluation forms The recep- tionist-secretary is also the Public Affairs Director In addition to greeting visitors and answering the phone she is in charge of all public service announcements She helps the programers select the public service announce- ments, and also helps produce, record, rewrite and edit them She also tabulates the statistical data for the play list The sales coordinator is a salaried employee in the $15,000 to $20,000 range Her hours are from 10 a m to 7 p m and her duties include editing the monthly news- letter, getting out press releases, typing, serving clients and promotional activities The traffic position is held by two employees in a job sharing arrangement They each work 20 hours a week and are paid on an hourly basis They produce the daily production log, process sales orders, determine which programer should record a particular commercial, edit the commercials, and compile the information to be read on the jazz notebook They also insure that all advertis- ing copy that will be read live is correct and are mem- bers of the KJA- All-stars band The general manager is the only supervisor at the Em- ployer's Alameda facility He holds a weekly staff meet- ing for sales personnel and a bimonthly meeting for all employees He has the authority to execute a collective- bargaining agreement and to hire and fire There is a presumption that a plant wide unit is appro- priate, but this may be rebutted and a separate unit of employees found appropriate where the separate unit is found to have a community of interest apart from the Employer's other employees Thus, in Hampton Roads Broadcasting Corporation (WGH), 100 NLRB 238 (1952), the Board found a separate unit confined to employees appearing before the microphone was appropriate be- cause these "employees who regularly or frequently appear before the microphone constitute a homogeneous, readily identifiable cohesive group appropriate as a unit for collective bargaining" This decision was based on the finding that the on-air employees possessed a talent— voice, diction and personality—which separated them from the other employees See also WTAR Radio Corpo- ration, 100 NLRB 250 (1952), KPOJ, Inc (KPOJ), 129 NLRB 727 (1960), Pulitzer Publishing Co, 203 NLRB 639 (1973) Based on the foregoing, it is concluded that a unit of all full and part-time progamers, excluding the substitute programer, is appropriate This is based on the recog- nized distinction for bargaining purposes in the radio in- dustry between employees who do not appear on the air and those who do Thus, the programers spend the ma- jority of their time on-the-air, work different schedules than the other employees employed by the Employer, and are the only employees required to have an air check tape at their initial interviews This emphasis on their voice quality and on-the-air manner clearly demon- strates the special talents that the programers are re- quired to possess, setting them apart from the other em- ployees The on-air programers constitute a homogene- ous, identifiable, cohesive group appropriate as a unit for 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining Hampton Roads Broadcasting Cor- poration (WGH), supra