Interstate Broadcasting Co., Inc.

In the Matter Of INTERSTATE BROADCASTING COMPANY, INC.'' and LOCAL No. 913, RADIO BROADCAST TECHNICIANS & ENGINEERS UNION, INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L.2 Case No. R-1617.-Decided December 11, 1939 Radio Broadcasting Industry-Investigation of Representatives: controversy concerning representation of employees: controversy concerning appropriate unit; rival organizations-Contract: for members only, terminating within a month, no bar to investigation or certification of representatives-Unit Appropriate for Collective Bargaining: all radio broadcasting operators, engineers, and techni- cians, including a certain employee and his successors, excluding supervisory employees-Election Ordered Mr. R. J. Hickey and Mr. D. R. Dimick, for the Board. Rosenberg, Goldmark c Colin, by Mr. Sydney M. Kaye, of New York City, for the Company. Ornstein & Silverman, by Mr. Henry Silverman and Mr. Bernard Fuld, of New York City, for Local 913. Mr. Harold Katan, of New York City, for the A. C. A: Mr. John K. Odisho, of counsel to the Board. DECISION AND DIRECTION OF ELECTION. STATEMENT OF THE CASE On August 9, 1939, Local No. 913, Radio Broadcast Technicians & Engineers Union, International Brotherhood of Electrical Workers, A. F. L., herein called Local 913, filed with the Regional Director for the Second Region (New York City) a petition, and on November 4, 1939, an amended petition, alleging that a question affecting com- merce had arisen concerning the representation of employees of Inter- state Broadcasting Company, Inc., New York City, herein called the Company; and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations IIncorrectl•y designated in the pleadings as Interstate Broadcasting Co., Inc. The pleadings were amended at the hearing to show the correct name of the Company. 2Incorrectly designated in the pleadings as Local Union No. 913, Int'l Brotherhood of Electrical Workers, AFL. The pleadings were amended at the hearing to show the correct name of the Union. 18 N. L. R. B., No. 36. 235 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat. 449, herein called the Act. On October 6, 1939, the National Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 20, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon Local 913, and upon American Communications Association, herein called the A. C. A., a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on November 13,1939, at New York City, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the Company, Local 913, and the A. C. A. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Interstate Broadcasting Company, Inc., is a New York corporation engaged in the business of radio broadcasting and in the manufacture and sale of radio receivers. It owns Radio Station WQXR in New York City, and operates it under license from the Federal Communi- cations Commission. Technicians employed by the Company are like- wise licensed by the Federal Communications Commission. The sta- tion operates with 1,000 watts power over a designated band of 1,550 kilocycles. Although it is not a part of any national network, its broadcasts are heard in practically all the States of the United States. The gross income derived by the Company in 1938 from its operation of Station WQXR amounted to approximately $63,000, about 40 per cent of which was received from sponsors located outside New York. The Company stipulated that it was engaged in interstate commerce within the meaning of Section 2 of the Act, and that it would not contest the jurisdiction of the Board in this proceeding or in any court. INTERSTATE BROADCASTING COMPANY, INC. 237 H. THE LABOR ORGANIZATIONS INVOLVED Local No. 913, Radio Broadcast Technicians & Engineers Union, International Brotherhood of Electrical Workers, is a labor organiza- tion affiliated with the American Federation of Labor, admitting to its membership radio technicians and engineers employed by the Company. American Communications Association is a labor organization affili- ated with the Congress of Industrial Organizations, admitting to its membership radio technicians and engineers employed by the Company. III. THE QUESTION CONCERNING REPRESENTATION In the latter part of July 1939, Local 913 requested the Company to bargain with it in behalf of the Company's operators, technicians, and engineers. The Company replied that it was unable to bargain with Local 913 because of the existence of a contract with the A. C. A. The contract referred to was entered into by the Company and the A. C. A. on April 24, 1939, and terminates on December 31, 1939. It covers only those licensed technicians of the Company who are or who may become members of A. C. A. during the life of the contract.' We do not consider the contract a bar to our determination of repre- sentatives herein. At the hearing counsel for the Company stated, "We have refused to bargain until we know whether we are bargaining with the A. C. A. or your union (Local 913) or both. That is the extent of our refusal at the present time." We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with-the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 8 The contract provides for a closed shop in the event the A. C. A. should become the representative of a majority of the licensed technicians at any time during its term. It was not claimed , however, that the A. C. A. had become such representative. IF 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT Local 913 contends that the Company's radio broadcast operators, technicians, and engineers, consisting of five employees, constitute an appropriate unit. The A. C. A. contends that only the Company's licensed engineers and technicians constitute an appropriate unit. The Company agrees with the contention of the A. C. A. All parties are agreed that the four engineers and technicians 4 employed at the Com- pany's transmitter in Long Island City, New York, are properly within an appropriate unit. The parties disagree over the inclusion of the fifth employee, Robert A. Elliott. Local 913 desires his inclusion in the unit, while the A. C. A. wishes to exclude him. Elliott expressed a desire to be included in a unit with the above-named four employees, and stated that there is no other unit of which he can become a part for the purposes of collective bargaining. Elliott is the night operator of the Company's control room in New York City. His duties in the control room consist of operating the turntables for the reproduction of recordings and transcriptions and regulating the volume of sound going through the transmitter. In his operation of the control-room equipment Elliott is under the super- vision of the Company's chief engineer. On Elliott's weekly night off his duties in the control room are performed by Cabaugh, one of the technicians, who, all the parties agree, should be within the unit. When the Company's president, vice president, and production man- ager are absent, Elliott, in addition to his duties in the control room, is charged with the duty of, seeing that the various activities of the station are properly coordinated. Both Local 913 and the A. C. A. admit to membership radio broad- cast operators performing duties similar to Elliott's. The A. C. A. admitted at the hearing that Elliott's work qualified him for inclusion in the unit but contended that he should be excluded from the unit because of his supervisory duties. With respect to this contention, the record reveals that Elliott does not have the authority to hire or discharge any employee. Nor does he exercise disciplinary author- ity over any of the four engineers and technicians who are concededly within the appropriate unit. We are of the opinion that Elliott. exercises no substantial supervisory function and that he should be included within the unit. At the close of the hearing the A. C. A. took the position that if Elliott is to be included in the unit then Markell, a radio receiver service employee, should likewise- be included. Both the Company and Local 913 objected to his inclusion. Markell's duties consist of installing, servicing, and repairing radio receiving sets. His work 4 E. J. Rhoad, E . M. Randier, E. Palmner, and R. Cabaugh. INTETSTATE BROADCASTING COMPANY, INC. 239 has no connection with the work of any of the five other employees within the proposed unit. We shall, therefore, exclude him. We find that the company's radio broadcasting operators, engineers, and technicians, including Robert A. Elliott or any successor to the position held by him at the time of the hearing, but excluding super- visory employees,, constitute an appropriate unit for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing both Local 913 and the A. C. A. claimed to repre- sent a substantial number of employees within the unit we have found to be appropriate. We find that the question concerning representa- tion can best be resolved by holding an election by secret ballot. Local 913 urges that the Company's pay roll of August 9, 1939, be used as the basis for determining eligibility to vote in an election. The A. C. A. and the Company expressed no preference for any particular pay-roll date. We are of the opinion that the policies of the Act will best be effectuated by the selection of a date for deter- mining eligibility which will more closely reflect the employment situ- ation at the time of the election. We shall accordingly direct that all employees in the appropriate unit who were on the Company's pay roll for the period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Interstate Broadcasting Company, Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The radio broadcasting operators, engineers, and technicians of the Company, including Robert A. Elliott or any successor to the position held by him at the time of the hearing, but excluding super- 5 The parties agreed that the chief engineer , the only supervisory emlpoyee here involved, should be excluded from the unit. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory employees, constitute an appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is, hereby Di cTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Interstate Broadcasting Company, Inc., New York City, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the radio broadcasting operators, engi- neers, and technicians of the Company who were on the Company's pay roll for the period next preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, including Robert A. Elliott or any successor to the position held by him at the time of the hear- ing, but excluding supervisory employees and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local No. 913, Radio Broadcast Techni- cians & Engineers Union, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, or by American Communications Association, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither.