American Broadcasting-Paramount Theatres, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 259 (N.L.R.B. 1965)

AMERICAN BROADCASTING COMPANY, ETC. 259
4. In view of the foregoing, we find that the following employees of
-the Employer constitute a homogeneous and cohesive unit appropriate
for purposes of collective bargaining within the meaning of Section
-9 (b) of the Act :
All appointed business agents and organizers employed by the
Retail Store Employees Union, Local 880, with headquarters in
Cleveland, Ohio, excluding all other employees and supervisors
as defined in the Act .9
[Text of Direction of Election omitted from publication.]
B As the record shows that Dunlap, President of Local 880, and McDonald , secretary-
treasurer, have authority to effectively recommend the hiring and discharge of business
agents and organizers , we shall exclude them from the unit because of their supervisory
status. As Krzys, an organizer , is also first vice president and a member of the Local
Executive Council which passes upon hiring and discharges of business agents and orga-
nizers , and formulates labor relations policies , we shall also exclude him from the unit.
See Laundry, Dry Cleaning and Dye House Workers' International Union, Local 26, 129
NLRB 1446, 1447, footnote 4. Moreover, as Walter Davis , a part-time employee education
director and editor of the Local 880 newspaper , Sam Hope, in charge of maintenance of
the Employer's building , and Gizella Nekich, part- time cleaning employee , have different
duties , interests , and working conditions from organizers and business agents, we shall
exclude them from the unit.
Neither the Employer nor Petitioner has taken a position with respect to the exclusion
or inclusion of stewards or inside organizers, since the parties have stipulated that the
record in Retail Store Employees Union, Local 444, Retail Clerks International Associa-
tion, AFL-CIO, supra, issued this day, be a part of the record in the instant case, we
shall exclude stewards and inside organizers if herein employed for the same reasons
we have excluded them in that case.
As the record shows that there are no part - time organizers presently employed and the
record contains little information as to the duties and duration of employment of such
employees , we find it unnecessary to, and do not, pass upon their status.
American Broadcasting Company, a Division of American Broad-
casting-Paramount Theatres , Inc.' and American Federation of
Television & Radio Artists , AFL-CIO, New York Local, Peti-
tioner. Case No. 3-RC-13475. June 21, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
William G. Haemmel. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed .2 Briefs
have been filed by the Employer and Petitioner.
1 The name of the Employer appears, as amended, at the hearing.
2 After the hearing and pursuant to Section 102.67 of the National Labor Relations Board
Rules and Regulations Series 8, as amended, the Regional Director issued an order trans-
ferring the case to the Board for decision.
153 NLRB No. 20.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the National Labor Relations
Board finds :
1. The Employer is engaged in commerce within the meaning of the,
Act and it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The labor organization 3 involved claims to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of the Act
for the following reasons :
The Petitioner seeks to represent employees in the following unit :
All persons employed by the New York office of the company,
whether on a regular staff basis or under a term freelance agree-
ment, to render services, on assignment by the company as news
correspondents,4 including without limitation the services of news
gathering, news preparation and news writing related and inci-
dental to such services as news correspondents, whether assigned
or intended for broadcast (and whether or not broadcast) on a
network basis over facilities of the ABC television or radio net-
work or on a local basis by the company's radio and television sta-
tions WABC-AM, FM and TV in New York City.
In effect, the Petitioner desires to represent newsmen assigned to the
New York office only to the extent that they do certain designated work.
The Employer contends that the requested unit is inappropriate
because, inter alia, it includes only some of the services performed by
newsmen.', We find merit in this contention of the Employer.
American Broadcasting Company, herein called ABC, a division
of American Broadcasting-Paramount Theatres, Inc., operates a tele-
vision and radio network together with five local TV and radio sta-
tions (known as owned-and-operated stations) in various cities of the
United States. In connection with its network broadcasting, ABC
maintains a complement of network newsmen, stationed in six cities in
the United States (including the approximately nine requested news-
men located in New York City) and seven cities in foreign countries,,
who are assigned to cover stories to be used on ABC-TV and radio net-
work news and news documentary shows."
8 The Petitioner Is the New York Local of American Federation of Television & Radio
Artists, AFL-CIO (AFTRA). Hereinafter , AFTRA will be used to designate both the
international union and /or its locals.
+Hereinafter referred to as newsmen In the record and briefs , such persons are re-
ferred to as newsmen , correspondents, commentators , and news announcers
',The Employer also contended that: ( 1) there is a contract bar to the requested unit;
(2) the only appropriate unit of newsmen is a multistation , multiemployer unit because
of bargaining history on such basis; and (3 ) the requested newsmen are supervisors. In.
view of our disposition of this case , we do not reach the merits of these contentions
6 Some of these stories are also used in ABC's local TV and radio news programs.
AMERICAN BROADCASTING COMPANY, ETC. 261
Newsmen are employed to cover any news stories assigned to them
and to present such stories as news inserts on radio or TV, or both,
either live, on film, or on tape. The network assignment desk assigns
a camera crew (usually consisting of a cameraman , a sound man, and
a lighting technician) to work with the newsman. The newsman, how-
ever, appears to be generally responsible for what is filmed, taped, and
recorded. He may suggest or direct placement of the camera, sound,
and lighting equipment. He is also responsible for obtaining any nec-
essary clearances for himself and the camera crew so that a news story
,can be covered adequately. He is responsible for preparing his own
narration on camera, arranging for interviews, and deciding in what
manner the story will be covered. At times, a newsman has the respon-
sibility for insuring that the film is delivered to the studio. At this
point the duties of the newsman end; he is not responsible for cutting
or editing the film, nor does he have any authority over whether the
news insert, or any portion of it, gets on the air or on the TV screen.
The newsman is also assigned to present 5-minute news broadcasts
(usually on radio).? He gathers together his own stories, stories from
the wire services and from other newsmen, and decides what is impor-
tant enough to broadcast. In determining the content of these broad-
casts, it appears that the newsman has a great deal of discretion and
.authority. Usually such programs do not have a director or producer,
and the newsman himself decides what will be broadcast.
A newsman may also be assigned to be the anchorman for a news
program; such programs usually include news inserts by other news-
men. Like the newsman who does a 5-minute broadcast, an anchorman
is only responsible for presenting the news. The Petitioner does not
seek to include in its unit any newsmen who are presently assigned as
anchormen .8
The newsmen involved are employed under individual term con-
tracts. The contracts are usually negotiated by an ABC vice president
and the individual newsman or his agent or attorney. In 1959, an ABC
newsman assigned to the Washington, D.C. bureau, took his proposed
•contract to AFTRA A for assistance, and AFTRA and ABC agreed on
a contract which became the standard for all individual contracts with
ABC newsmen throughout the country. Although there are some dif-
ferences in each contract, such as the guaranteed weekly salary, most
provisions, which deal with the general duties of newsmen, term of the
7 One newsman stated that he had recently been assigned to present news on Sundays
after the nationally televised football game if the game ended at an appropriate time.
s Note ?_o that the Petitioner does not desire to represent newsmen who analyze and
comment upon the news The Petitioner , however, would include such newsmen if they
also present news inserts.
O Apparently all newsmen who appear on the air or TV screen are required to be mem-
bers of AFTRA as a result of certain contracts between AP PRA and the various networks.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract, notice of termination, weekly guaranteed salary, crediting of-
AFTRA fees, vacations, sick leave, indemnity, union security, assign-
ment, and damages for breach of contract, are substantially similar.
The individual contracts specify the weekly minimum salary for-
newsmen. However, various collective-bargaining contracts between
the networks and AFTRA provide that newsmen shall be paid certain
fees for actual appearances on the air or TV screen. For example, the
National Code of Fair Practice for Network Television Broadcast-
ing 10 provides that newsmen shall be paid $50 per insert for any news
insert that appears on network TV.11 Such "on-air" or "on-screen"
services performed by newsmen are referred to as "AFTRA covered
services." The individual term contracts provide that the amounts
paid for such services shall be credited against the guaranteed weekly
salary.12 Any fees in excess of the guaranteed weekly salary are paid
to the newsman. A newsman's weekly earnings thus depend not only
upon his guaranteed weekly salary, but also upon the number of inserts-
in which he appears each week. In 1962 the newsmen involved in this
proceeding earned between $16,000 and $43,000.
At the present time, the actual appearance of a newsman in a news
insert, the services involved in presenting a 5-minute broadcast, and
performance as an anchorman on a news show, are completely covered
by various existing collective-bargaining contracts.13 Consequently,
although the Petitioner's request is far from clear, it appears from the,
record that the Petitioner's proposed unit is limited to the services of
newsmen incidental and related to presenting news inserts but exclud-
ing the actual presentation of such news inserts.
Bargaining History
From 1939 to 1952, American Federation of Radio Artists (AFRA)
'(predecessor of AFTRA) and the national radio networks negotiated
collective-bargaining agreements covering certain employees of the
networks, i.e., actors, singers, announcers, and persons performing as
talent, on a multistation, multiemployer basis.
In 1950, Associated Actors and Artists of America (made up of
Actors Equity Association, AFRA, American Guild of Variety Artists,
American Guild of Musical Artists, and Chorus Equity Association)
formed Television Authority (TVA which entered into a collective-
10 This contract is national multistation , multiemployer contract between AFTRA and
ABC, CBS, and NBC covering generally the services performed by talent for the networks.
11 Contracts covering network and local radio and local TV also provide that a newsman
shall be paid a certain amount for an on - air or on-camera appearance in presenting a
news insert.
12 A certain amount ( usually $50 ) of the guaranteed weekly salary is not subject to being
credited against by fees paid for AFTRA covered services.
13 The services of analyzing and commenting upon the news are specifically excluded
from coverage by these contracts.
AMERICAN BROADCASTING COMPANY, ETC. 263
bargaining agreement with the television networks covering actors,
singers, announcers , dancers , and other performers in television. As
the result of a representation petition filed by TVA in 1951, the Board
found the following unit to be appropriate :
All persons employed as talent on all live television programs
originating in New York, Chicago, and Los Angeles, and broad=
cast over the network facilities of the Employers [ABC; CBS;
NBC; Dumont Television Network Division, Allen B. Dumont
Laboratories; and General Tele-Radio, Inc.], including actors,
masters of ceremonies , quizmasters, disc jockeys, singers, dancers,
announcers , sportcasters-play by play, assistant play by play,
and colormen-specialty acts, walk-ons, television extras, and all
other television performers,,but excluding services rendered by
such performers in the capacity as musician ..14
In 1952, TVA and AFRA merged into AFTRA which became., the
collective-bargaining representative for employees previously sepa,
rately represented by TVA and AFRA. ' AFTRA negotiated various
collective-bargaining agreements with the three television networks
and the four radio networks in .1952, 1954, 1956, 1958, 1960, and 1963.
Thus, talent ( also referred to as "performers" and "artists'.' in the
record) in network radio since 1939 and talent in network TV since at
least 1950 have been represented in multistation, multiemployer. bar-
gaining units.
Although AFTRA's certification is limited to talent, it appears that
AFTRA has attempted each negotiating year to cover the.services of
newsmen. In the 1952-54 contract covering talent, there was no men-
tion of newsmen . In the 1954-56 contract, although the record is not
clear and the contract indicates that newsmen were not covered, a wit-
ness for the Employer stated that, to the best of his recollection,,
newsmen were generally covered, but that Washington and foreign
newsmen were excluded. (The extent to which newsmen were treated.
as covered by the contract is not stated.) In the 1956-58 contract,
newsmen were specifically covered for live news cut-ins originating
from New York, Chicago, and Los Angeles. In the 1958-60 contract,.
Washington, D.C., was added.as an originating station for which live,
news inserts by newsmen were . covered.15 Under the terms of the
1960-63 contract, "news cut-ins including film news inserts originating
from New York, Chicago, Los Angeles, or Washington, D.C." were
covered. In the current 1963-66 contract, "live, film or recorded news,
inserts" originating from the foregoing cities are covered.
14 American Broadoaeting Company, Inc., at al., 96 NLRB 815 ; certification issued Feb-
ruary 18, 1952.
-AFTRA contended that film inserts as well as live inserts were covered by the con-
tract but that it lost this point at arbitration.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National bargaining between the networks and AFTRA takes place
in New York. At such sessions , the parties bargain about several
national TV and radio contracts and even discuss some of the prob-
lems involved in local contracts and staff announcers' agreements.16
At these bargaining sessions , the parties are represented by their
national officers. Most of the bargaining for the local contracts and
staff announcers' agreements is conducted at the local level with the
parties being represented by their local officials.
As previously stated, the 1960-63 national contract covered newsmen
to the extent that they appeared on camera. Prior to the expiration of
this contract, AFTRA presented several proposals to the networks
which would require payment for pooled broadcasts and filmed inserts
regardless of origination. This request was clearly a request for mul-
tistation, multiemployer bargaining.
Shortly before October 18, 1963, AFTRA submitted to the three
networks a document entitled "Proposals for Contract Covering News-
men on Staffs of Networks and Network-Owned-and-Operated Sta-
tions." This proposal contained conditions of employment for news-
men not previously covered by the national contracts (such as minimum
weekly writing fee, travel compensation, duties of newsmen, no credit-
ing of commercial fees against base salary) and demanded that news-
men subject to assignment by the networks and their stations be subject
to coverage by the staff announcers ' agreements except as would be
modified by local negotiations. Again, this proposal by AFTRA was
a request for multistation, multiemployer bargaining which could be
modified to some degree by local negotiations.
On October 18, 1963, however, AFTRA requested separate negotia-
tions with each network and station with respect to newsmen. The
networks (speaking through NBC's director of labor relations) ques-
tioned AFTRA's legal authority on the ground that the national con-
tracts already covered newsmen. AFTRA agreed that these contracts
applied to newsmen, but stated that it wanted terms beyond those in
the national contracts. AFTRA requested several separate contracts,
viz, a contract covering ABC New York network and local TV and
radio newsmen, one covering CBS owned-and-operated station WCBS
radio newsmen only, and one covering all MBS newsmen. AFTRA
reserved with respect to NBC's newsmen.
ABC refused to negotiate a staff contract for its newsmen but stated
that it and the other networks would negotiate jointly for provisions
covering newsmen as part of the national contracts and that any spe-
1s Staff announcers are employees employed by the networks and local stations to make
station identifications, music credit , local spots, time signals and similar announcements,
add switch cues ; such employees are not newsmen.
AMERICAN BROADCASTING COMPANY, ETC. 265
cial newsmen problems could be handled by amendments to the national
contracts. CBS and NBC took the same position with respect to the
acceptable manner of negotiations.
From October 1963 to January 1964, the networks and AFTRA
negotiated with respect to newsmen but failed to reach agreement.'''
During such negotiations the networks at one time agreed to include
many of the provisions requested by AFTRA in a supplement to the
national contracts. However, AFTRA apparently was unable to get
the newsmen to agree to such inclusion since the networks were unwill-
ing to pay overtime or allow compensatory time off when the newsmen
worked more than 8 hours a day or more than 5 days a week. At one
point the networks and AFTRA did negotiate and discuss the problems
of New York newsmen as a specific subject, and it appears that at one
point ABC and AFTRA negotiated with respect to ABC's New York
newsmen.18 During this period, AFTRA warned that if a satisfactory
solution was not reached, it would file representation petitions and
claim to represent newsmen. A representation petition for ABC's
newsmen was filed in the spring of 1964, but was withdrawn; the
instant ABC petition was filed on June 4, 1964.
From the foregoing, it seems clear that many of the services pro-
vided by newsmen are currently covered by collective-bargaining con-
tracts between the parties and that the services requested to be included
within the unit here have been bargained for previously and recently
by the Employer and AFTRA on what appears to be both a multista-
tion, multiemployer and a single-station, single-employer basis. In
fact, at the hearing in this case, AFTRA stated twice that it would
withdraw this petition if the Employer would stipulate that the
requested newsmen were completely covered by all terms and condi-
tions of the multistation, multiemployer contracts.'9
In effect, the Petitioner has requested us to find an appropriate unit
limited to only a portion of the integrated services performed by news-
men. This, under all the circumstances, we consider inappropriate.
Such requested procedure could result in employees being certified in
several different units even though they are really only performing one
job for their employer. For example, at the present time, the requested
17 Although the parties never reached agreement with respect to all the services of news-
men, they did reach agreement on all other provisions of the contracts , including the pro-
visions relating to on-camera and on-air services performed by newsmen , and entered into
the 1963-66 contracts embodying such provisions
1, From June to August 1964, there was bargaining between CBS and AFTRA for serv-
ices performed by CBS newsmen in New York for both network and local radio and TV.
Such negotiations did not result in any agreement
18 ABC consistently and successfully maintained that only the provisions of the national
contracts relating to payment for news inserts were applicable to newsmen. AFTRA
wanted newsmen to be covered by other provisions of the national contracts, such as those
relating to compensation for traveling , hazard pay , flight insurance , extra rehearsal pay,
and overtime.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
newsmen are included in one contract unit for news inserts that they
present on national TV, in another for news inserts they present on
local TV, in another for news inserts they present on national radio,
and in still another for a news insert they present on local radio. This
is true even though it may be the very same news insert that is being
presented. If we were to find the requested unit appropriate, it would
establish still another unit in which these newsmen, who are really per-
forming only one integrated function, would be included. Such frag-
mentation of a single, integrated job can only lead to confusion and
certainly will not promote stability of labor relations. Therefore, in
our opinion, finding a unit to be appropriate which is limited to only a
portion of a single, integrated function performed by certain employ-
ees would not in this case effectuate the purposes of the Act and would,
not "assure to employees the fullest freedom in exercising the rights
guaranteed by the Act." Accordingly, we find the proposed unit inap-
propriate. We shall, therefore, dismiss the petition herein.
[The Board dismissed the petition.]
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
National Broadcasting Company, Inc.' and American Federation
of Television and Radio Artists , Washington Local , AFL-CIO.
Case No. 5-RC-4946. June 21, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Joseph Amann. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. Briefs have been
filed by the Employer and the Petitioner.
Upon the entire record in this case, the National Labor Relations
Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent employees of
the Employer.
3. No question affecting commerce exists concerning the represen-
tation of-Certain employees of the Employer for the following reasons :
i The Employer 's name appears as amended at the hearing.
153 NLRB No. 21.