Scripps-Howard Radio, Inc.

In the Matter of SCRIPPS-HOWARD RADIO, INC., S'r.vrior WCPO and AMERICAN, FEDEP,A'rlox OF RADTO AR'I'TS'IES, CINCINNATI LOCAL, AF- r LLIATED wi,rir AFL In the Matter of SCRIPT'S How' vRD RADIO, INC.. STATION WVCPO and ASSOCIATED BROADCAST TECITNICTANS, U NIT OF I. B. E. W., AFFIL- IATFD -\vim A. F. O. L. Cases Nos. R-1710 and R-1711, respectively-Decided MMarch 8, 1940 Radio Broadcasting Tndasti y-Investigalion of Repiesenntatives. controversy concerning representation of employees. company refuses to recognize unions as sole collective bargaining agents until unions are certified by the Board- Unnts Appropriate for Collective Bargaining: all employees appearing before the microphone in a professional capacity, excluding "hillbillies" ; all broad- cast technicians, employees with some supervisory duties included in-Rep- reseatatives: proof of choice: documentary proof not objected to by com- pany-Cei tafication of Repi eseintotnves • upon proof of majority representa- tion-Election Oidcied: to determine bargaining representative of employees appearing before the microphone Mrs. Mary Telker Iliff, for the Board. Baker, Hostetler cC Patterson, by M'r. Thomas J. Edwards, of Cleveland, Ohio, for the Company. Mrs. Egrzily Holt, of New York City, for the A. F. R. A. Mr. Ray Johnson, of counsel to the Board. DECISION DIRECTION OF ELECTION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On January 11 and 15, 1940, respectively, American Federation ,of Radio Artistes, Cincinnati Local, affiliated with AFL, herein called the A. F. R. A., and Associated Broadcast Technicians Unit of I. B. E. W., affiliated with A. F. O. L., herein called the A. B. T. U., each filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting coln- inerce had arisen concerning the representation of employees of Scripps-Howard Radio, Inc., Station WCPO, Cincinnati, Ohio, here- in called the Company, and requesting an investigation and certifi- 21 N. L. R. B., No. 31. 295 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On Janu- ary 18, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 2, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appro- priate -hearing upon due notice. On the same day, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, the Board further ordered that the cases be consolidated. On January 22, 1940, the Regional Director issued a notice of hearing, copies of which were served upon the Company, upon the A. F. R. A., and upon the A. B. T. U. On January 26, 1940, the Company filed a motion to continue the hearing until January 31, 1940, and agreed, in the event the motion was granted, to waive 5 days' notice of such hearing. On the same day the Regional Direc- tor granted the motion. Pursuant to the notice and notice of postponement, a hearing was held on January 31, 1940. at Cincinnati, Ohio, before John T. Lind- say, the Trial Examiner duly designated by the Board. The Board, the Company, and the A. F. R. A. were represented by counsel, and the A. B. T. U. by its international representative; all participated in the hearing. Full oportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing 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 1. THE BUSINESS OF THE COMPANY Scripps-Howard Radio, Inc., an Ohio corporation , owns and op- erates radio-broadcasting stations in Cincinnati , Ohio, and Knoxille, Tennessee, known as WCPO and WNOX, respectively. Station WCPO , the only station involved in this proceeding , is not a part of any national network, but it occasionally broadcasts network programs. It is licensed by the Federal Communications Commis- sion and operates with a power of 250 watts. Its programs are ordinarily received at points in the States of Ohio, Kentucky, and Indiana, within a radius of 20 miles from the City of Cincinnati. The station purchases and broadcasts United Press bulletins orig- inating in all parts of the world. During the summer, it r'ceives SCRIPPS-HOWARD RADIO, INC. 297 by direct wire play-by-play descriptions of baseball games played outside the State of Ohio and broadcasts these reports. Approxi- mately 20 per cent of its total sales of advertising originate outside the State of Ohio. II. THE ORGANIZATIONS INVOLVED American Federation of Radio Artistes, Cincinnati Local, is a la- bor organization affiliated with the American Federation of Labor. It admits to its membership all employees of the Company who appear before the microphone in a professional capacity. Associated Broadcast Technician Unit is a labor organization af- filiated with the International Brotherhood of Electrical Workers and with the American Federation of Labor. It admits to mein- bership all broadcast technicians employed by the Company. III. THE QUESTIONS CONCERNING REPRESENTATION On January 8, 1940, the A. F. R. A. requested the Company to bargain with it as the exclusive representative of all the Company's employees appearing before the microphone in a professional ca- pacity. The Company, however, refused to bargain with the A. F. R. A. until it was certified by the Board. The A. B. T. U. made a written request that the Company bargain with it as the exclusive representative of the broadcast technicians employed by the Company. The Company, however, refused to bargain with the A. B. T. U. until it was certified by the Board. We find that questions have arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Company described in Section I above, have 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNITS The A. F. R. A. contends that all the Company's employees who appear before the microphone in a professional capacity constitute an appropriate unit. The Company seeks to exclude Andre Carlon from such a unit, contending that he exercises supervisory functions. As program director and chief announcer, Carlon directs the ap- 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portionment of time of other program employees and generally super- vises their work. In addition to such functions, he performs the duties of an announcer about 27 hours a week. Announcers exer- cising supervisory functions are included in all contracts negotiated. by the A. F. R. A., and it is now bargaining for such announcers in about 75 per cent of all broadcasting stations in the United States. Carlon is a member of the A. F. R. A. and the president of the Cincinnati Chapter. In view of the time devoted to non-supervisory functions, his duties would appear to resemble those of a working foreman whom we have included in the unit in previous cases at the instance of the only union involved.1 We shall accordingly include him, in the unit. The A. F. R. A. requests the exclusion from the unit of a group known as the "hillbillies," who are occasionally permitted to broad- cast over the station but are not paid for their services. The musi- cian's union, with which the Company has a contract, claims juris- diction over the "hillbillies." We shall exclude them from the unit. The A. B. T. U. contends that all broadcast technicians employed by the Company constitute an appropriate unit. The Company seeks to exclude Glen A. Davis, chief engineer, from such a unit, contending that he is a supervisory employee. Davis supervises the work of three other engineers and also makes some purchases of ma- terials for the Company. In addition to his supervisory duties, Davis devotes a substantial portion of his time to the performance of duties identical to those of his subordinates. Like Carlon, Davis' duties resemble those of a working foreman.2 We shall include him in the unit. We find that all employees of the Company who appear before the microphone in a professional capacity, excluding "hillbillies," constitute an appropriate unit.' We find that all broadcast technicians employed by the Company constitute in appropriate unit. We find that these units 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 DET'.ERDMINATION OF REPRESENTATIVES At the hearing the A. F. R. A. introduced evidence to show that it represented a substantial number of the Company's employees but 13fatter of Lidv Bhothers, Incorporated and United Wholesale Employees, (Local No. 65), 5 N L R B 757, Hatter of Kansas Milling Company and Flour, Feed, Seed, Cereal d Elebator Workers Union, No 20991, A F. of L, 15 N L R B 71; Hatter of Brooklyn Daily Eagle and Newspaper Guild of New Port, l; N. L R B 974 2 See cases cited in footnote 1, supra 3 The A F. R. A requests the exclusion of Albert Stephan listed on the pay roll as a writer in the program department Stephan does not appear before the microphone We shall accordingly exclude him from the unit SCRIPPS-HOWARD RADIO, INC conceded that an election is necessary to settle the question concern- ing representation. The A. F. R. A. requests that a current pay roll be used to, de- termine eligibility to participate in the election. The Company did not oppose the use of such pay roll and there is no showing that such a pay roll is inappropriate. We shall accordingly direct that those persons eligible to vote shall be the employees in the appropriate unit who were employed by the Company during the pay-roll 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, but excluding those who have since quit or been discharged for cause. The A. B. T. U. introduced documentary evidence to prove that it represented all broadcast technicians employed by the Company and requested certification on the basis of such proof. The Com- pany admitted that its four broadcast technicians were members of the A. B. T. U. and made no objection to certification on the record. Accordingly no election is necessary among the broadcast techni- cians.4 We shall certify the A. B. T. U. as the exclusive represents- tive of all broadcast technicians employed by the Company. 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. Questions affecting commerce have arisen concerning the reps e- sentation of employees of Scripps-Howard Radio, Inc., Station WCPO, Cincinnati, Ohio, within the meaning of Section 9 (c), and Section 2 (6) and (7), of the National Labor Relations Act. 2. All employees of the Company who appear before the micro- phone in a professional capacity , excluding "hillbillies," constitute- a unit appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the National Labor Relations Act. 3. All broadcast technicians employed by the Company constitute a unit appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the National Labor Relations Act. 4. Associated Broadcast Technicians Unit of I. B. E. W., affiliated' with A. F. O. L. is the exclusive representative of all broadcast tech- nicians employed by the Company at Station WCPO for the pur- poses of collective bargaining, within the meaning of Section 9 (a), of the National Labor Relations Act. 4 Matter of Capstol Automatic Music Company, Inc and Uniterl Conti Machine Employees Union, Local 2.4, U R& IV E of America, C I 0 , 18 N L R B. 23. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Re- lations Act, and pursuant to Article III; Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part; of the investigation authorized by the Board to ascertain representatives for the purpose of collective bargaining with Scripps-Howard Radio, Inc., Station WCPO , Cincinnati, Ohio, 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 Di- rector for the Ninth 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 all the employees of the Company appearing before the microphone in a professional capacity who were employed by the Company during the pay-roll period next preceding the date of this Direction of Election 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 "hillbillies" and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Radio Artistes , Cincinnati, Local , affiliated with AFL, for the purposes of collective bargaining. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449 , and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations- Series 2, as amended, IT IS HEREBY CERTIFIED that Associated Broadcast Technicians Unit of I. B. E. W. affiliated with A. F. O. L., has been designated and selected by a majority of the broadcast technicians employed by the Scripps-Howard Radio, Inc., Station WCPO, Cincinnati , Ohio, as their representative for the purposes of collective bargaining and that pursuant to Section 9 (a) of the National Labor Relations Act, Associated Broadcast Technicians Unit of I. B. E. W., affiliated with A. F. O. L., is the exclusive representative of all such employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment , and other conditions of employment.