Star-Times Publishing Co.

In the Matter Of STAR-TIMES PUBLISHING COMPANY and AMERICAN FEDERATION OF RADIO ARTISTS , ST. Louis LOCAL Case No. R-1891.-Decided July 16, 1910 Jurisdiction : radio broadcasting industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union and requests that cer- tification be obtained ; eligibility of intermittent employees to vote ; election necessary. Unit Appropriate for Collective Bargaining : staff and free-lance actors, singers, and announcers, including news editor and clerical employees who do part- time work before the microphone in the employ of the Company as actors, singers, or announcers, but excluding "hillbillies" and program director. Supervisor identified with executive management of company excluded from unit though the only union involved requests his inclusion. Mrs. 'Nellie Booth, of St. Louis, Mo., and Mr. James Porter, of New York City, for the Union. Messrs. Cobb, Logan, Roos ct Armstrong, by George Logan, Esq., and Mr. Ray V. Hamilton, of St. Louis, Mo., for the Company. Elizabeth W. Weston, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 13, 1940, American Federation of Radio Artists, St. Louis Local, herein called the Union, filed with the Regional Director for the Fourteenth Region (St. Louis, Missouri) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Star-Times Publishing Company, herein called the Company, at its radio station KXOK in St. Louis, Mis- souri, herein called Station KXOK, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 8, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article 25 N. L. R. B , No. 60. •492 STAR-TIMES PUBLISHING COMPANY 493 III, Section 3, of National, Labor Relations Board Rules and Regu- lations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and, to provide for an ap- propriate hearing upon due notice. On June 12, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Union and the Company. Pursuant to the notice, a hearing was held on June 14, 1940, in St. Louis, Missouri, before King Derr, the Trial Examiner duly designated by the Board. The Company was represented by the manager of Station KXOK and by counsel, and the Union was represented by its duly authorized representatives. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Upon the entire record in the case, the Board. makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Star-Times Publishing Company is 'a Missouri corporation hav- ing its offices and principal place of business in St. Louis, Missouri. The Company is engaged in the publication of the St. Louis Star- Times, a daily newspaper, and in the operation of radio station KXOK. These proceedings are concerned only with employees of the Company at Station KXOK. Station KXOK, which is operated under a license from the Fed- eral Communications Commission and is affiliated with the Mutual Broadcasting System, is engaged in broadcasting radio programs consisting of news, educational material, music, and advertising. Its broadcasting studios and microphones are located in St. Louis, Missouri; its broadcasting transmitter and tower are located in St. Clair County, Illinois; and all or a large part of the electric power used by it in broadcasting is generated outside the State of Missouri. Station KXOK operates with 1000-watt power over a designated wave length of 1,250 kilocycles. Its programs are regularly heard by listeners in the States of Missouri and Illinois. In the regular course of its business, Station KXOK rebroadcasts programs origi- nating in States other than the State of Missouri. A substantial percentage of its income is derived from the rebroadcast of programs transmitted to it from other radio stations, affiliated with the Mutual Broadcasting System, located outside the State of Missouri.' 1 According to a stipulation between the Board, the Company, and the Union, introduced in evidence at the hearing, Station KXOK "does a business " in excess of $50 ,000 annually. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. -THE ORGANIZATION INVOLVED American Federation of Radio Artists, St. Louis Local, is a labor organization chartered by American Federation of Radio Artists, affiliated with Associated Actors and Artistes of America, which, in turn, is affiliated with the American Federation of Labor. The Union admits to its membership "any person who has performed or intends to perform as an actor, singer, solo instrumentalist, dancer, announcer, or speaker in any radio broadcast, or who otherwise sings, speaks, acts, plays or produces sound effects before the microphone", within the city of St. Louis, Missouri. III. THE QUESTION CONCERNING REPRESENTATION At the hearing there was introduced into evidence an analysis made by the Acting Regional Director showing that the Union holds applications for membership signed by a substantial number of the employees of the Company at Station KXOK in the unit alleged in the petition to be appropriate for the purposes of collective bargain- ing. At the hearing also the parties stipulated that the Company has declined to recognize the Union as the exclusive representative of its employees in said unit until such time as the Union is certified as such representative by the Board. We find that a question has arisen concerning the 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. V. THE APPROPRIATE UNIT At the hearing it was agreed by the Union and the Company that a unit consisting of actors, singers, and announcers employed by the Company at Station KXOK, excluding microphone entertainers known as "hillbillies," is appropriate for the purposes of collective bargaining. The Company and the Union also agreed that the unit thus defined includes the regular staff employees of Station KXOK in the program department, and, in addition, free-lance actors, singers,,and announcers employed by Station KXOK for particular STAR -TIMES PUBLISHING COMPANY 495 performances -' The Union claims that two regular clerical employ- ees who do part-time work before the microphone in the employ of Station KXOK as actors , singers, or announcers , are also within the unit agreed upon by the parties . The Company makes no contention with respect to such clerical employees . We find that the staff and free-lance actors , singers, and announcers employed by the Compaii at Station KXOK , including clerical employees who do part-time work before the microphone in the employ of Station KXOK, as actors, singers, or announcers, should be included in the unit. The Union claims that two supervisory employees of Station KXOK , Blaine Cornwell and Audrey B. Reid 3 who do part-time work before the microphone as actors , singers, or announcers, should also be included within the appropriate unit. The Company opposes this contention. Blame Cornwell is employed by the Company as program direc- tor, having complete supervision over all programs produced by Station KXOK . He directs the work of all persons employed by Station KXOK who appear -before the microphone, and thus has supervisory authority over 16 or more staff employees as well as over the free-lance artists employed by Station KXOK. Cornwell hires and discharges radio performers working under his supervision. While his discretion in this respect is subject to the approval of his executive superiors , his recommendations are final in nearly all in- stances. Cornwell regularly appears befoi e the microphone 3 hours each week as an actor on one of the Company's commercial pro- grams, and it is for this reason that the Union seeks to have him included in the appropriate unit. He is eligible to provisional mem- bership in the Union ,' but is not a member thereof . As compared with all the other employees within the appropriate unit, Cornwell, who directly supervises their work, is clearly identified with the executive management of Station KXOK rather than with its em- ployees. We find that he should be excluded from the unit.5 Audrey B. Reid is employed by the Company under Cornwell's supervision , as a news editor in charge of the preparation of news for broadcasting purposes . He has two regular subordinates, one of whom regularly appears before the microphone, and is included within the appropriate unit. Reid recommends the hiring and dis- charging of employees under his supervision and his recommenda- tions are usually adopted . He regularly appears before the' micro- 8 The Company claims, however , that those flee-lance artists w ho are employed by it "only occasionally at rare intervals " are?not properly considered its employees See the discussion of eligibility to vote in the election in Section VI, infra. 8 Also referred to at the hearing by his radio pseudonym, Bruce Barrington. 4 Provisional membership , which does not carry vofing privileges, is open to persons occupying supervisory positions G Cf our holding with respect to one Meredith in Matter of Kansas Milling Company and Flour, Feed, Seed, Cereal & Elevator Workers Union, N o 26991, A F of L , 15 N. L R. B 71. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone on a commercial program. Like Cornwell , Reid is eligible to provisional membership in the Union , but is not a member thereof. His position , however, as compared with that of Cornwell , is dis- tinctly subordinate , although he has some supervisory authority. For the purposes of collective bargaining, his interests appear to be more closely identified with those of the other employees within the appro- priate unit than with those of the Company. We shall include Reid in the unit. We find that the staff and free-lance actors, singers, and announcers employed by the Company at Station KXOK, including Audrey B. Reid and clerical employees who do part -time work before the microphone in the employ of the Company as, actors , singers, or announcers, but excluding "hillbillies" and Blaine Cornwell, con- stitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company at Station KXOK the full benefit of their right to self-organization and collective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Union claims that the eligibility of free-lance employees to vote in the election should be determined by the Company 's employ- ment of such persons at any time within the 3-month period immedi- ately preceding May 13, 1940, the date when the Union filed its petition herein . The Company expressed no opposition to this. We see no reason why the 3-month period should not be that immedi- ately preceding the date of our Direction of Election herein, and shall direct that that period be used. We shall direct that the employees in the appropriate unit who were employed by the Company during the pay-roll period immedi- ately preceding the date of our Direction of Election herein, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation and those who were then or have since been temporarily laid off, and including free-lance actors , singers, and announcer's who were employed by the Company at any time dur- ing the 3-month period immediately preceding the date of the Direction of Election , but excluding those who have since quit or been discharged for cause , shall be eligible to vote in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS Ol` LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Star-Times Publishing Company at radio STAR-TIMES PUBLISHING COMPANY 497 station KXOK, St. Louis, Missouri, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The staff and free-lance actors, singers, and announcers em- ployed by Star-Times Publishing Company at radio station KXOK, including Audrey B. Reid and clerical employees who do part-time work before the microphone in the employ of said Company as actors, singers, or announcers, but excluding "hillbillies" and Blaine Cornwell, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Relations 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 ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Star-Times Publishing Company, St. Louis, Missouri, 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 Fourteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9, of said Rules and Regulations, among the staff and free-lance actors, singers, and announcers, employed by Star-Times Publishing Company at radio station KXOK who were employed by said Com- pany during the pay-roll period immediately preceding the date of this Direction of Election, including Audrey B. Reid, clerical em- ployees who do part-time work before the microphone in the employ of said Company as actors, singers, or announcers, employees who did not work during such pay-roll period because they were ill or on vacation, and those who were then or have since been temporarily laid off, and including free-lance actors, singers, and announcers em- ployed by said Company at radio station KXOK at any time during the 3-month period immediately preceding the date of this Direction of Election, but excluding "hillbillies," Blaine Cornwell, and those who have since the date of this Direction of Election quit or been discharged for cause, to determine whether or not they desire to be representated by American Federation of Radio Artists, St. Louis Local, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.