Columbia Broadcasting Stystem, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1946

70 N.L.R.B. 1368 (N.L.R.B. 1946)

In the Matter of COLUMBIA BROADCASTING SYSTEM, INC. and MOTION
PICTURE HOME OFFICE EMPLOYEES UNION, LOCAL H 6311. A. T. S. E.,
AFL
In the Matter of COLUMBIA BROADCASTING SYSTEM, INC. and RADIO
GUILD UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA,
CIO
Cases Nos. 2-R-5878 and 2-R-5884, respectively
SECOND SUPPLEMENTAL DECISION
AND
DIRECTION
September. 90, 1946
On June 14,1946, pursuant to the Decision and Direction of Election 1
and the Supplemental Decision and Direction of Elections,2 issued by
the Board herein, elections by secret ballot were conducted under the
direction and supervision of the Regional Director for the Second
Region (New York City). Upon the conclusion of the elections, Tallies
of Ballots were furnished the parties in accordance with the Rules
and Regulations of the Board.
The Tallies show : (a) In the City-wide white collar group, there
were 796 eligible voters, of whom 327 voted from the UOPWA, 9 voted
for the IATSE,103 voted for the IBEW, 208 voted against all partici-
pating labor organizations, and 23 voted under challenge; (b) in the
miscellaneous studio employees group, there were 10 eligible voters, of
whom 9 voted, all under challenge; (c) in the television directors'
unit, there were 13 eligible voters, of whom 5 voted for the IATSE, 6
voted for the RDG, and 2 voted under challenge. In each of the voting
groups, the challenged ballots are sufficient in number to affect the
results of the election.
On June 21, 1946, the IATSE and the IBEW filed separate Ob-
jections to the conduct of the elections on various grounds discussed
below. Thereafter, the Acting Regional Director investigated the
issues raised by the Objections and the challenges. On August 14,
1946, pursuant to Article III, Section 10, of the Board's Rules and
Regulations-Series 3, as amended, then in effect, he issued and duly
served upon the parties his Report on Challenges and Objections,
1 68 N L. R. B. 274.
2 68 N. L. R. B. 499.
70 N. L. R: B., No. 142.
1368
COLUMBIA BROADCASTING SYSTEM, INC. 1369
recommending that the Objections be overruled and that various
challenged ballots be opened and counted. Subsequently, the IBEW,
the IATSE, and the Company filed Exceptions to the Acting Regional
Director's Report.
We have considered the Objections of the IBEW and the IATSE,
the Acting Regional Director's Report on- Challenges and Objections,
the Exceptions filed thereto by the IBEW, the IATSE, and the Com-
pany, and the entire record in the case. Upon the basis of the fore-
going, we find as follows :
As to the IATSE's Objections
(1) The Board refused to permit Russell Moss, executive vice
president of the IATSE, to act as an observer at the elections.
Under the Board's well -established election procedure , Moss, as
a non-employee , was properly disqualified as an observer for the
IATSE at the elections . Accordingly , this objection is without merit.
(2) All voters in the miscellaneous studio employees group also
voted in the city-wide unit, and the Board's agent challenged some
of these voters.
These nine voters were challenged in both elections and their ballots
were impounded . None of the parties were adversely affected thereby.
The fact that some of these nine voters were challenged by a Board
agent was not improper.
(3) The Regional Office of the Board refused to permit the IATSE
to appear on the ballot as "International Alliance of Theatrical Stage
Employees, AFL."
Since the name of the unions on the ballots followed the wording
in our Decision , we find that this objection has no merit.
(4) T &e Company circulated among its employees on and immedi-
ately before the date of the election a reprint from a trade paper which
contained misrepresentations of fact thereby interfering with the free
conduct of the elections , and in addition circulated an inter-office
memorandum to influence its employees as to how they should vote.
It appears that the news article in question was reprinted and dis-
tributed by the UOPWA and not by the Company . Moreover, the
contents of the article are not such as would justify setting aside the
election . As to the inter-office memorandum issued by the Company
the day before the election , it contained no threats or coercive state-
ments and urged the employees to vote against all the unions. The
memorandum was clearly privileged free speech under the doctrine
laid down in the American Tube Bending case.3
3N. L. R . B. v. American Tube Bending Co., 134 F . ( 2d) 993 (C. C. A. 2), cert. denied 320
U. 8. 768.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) The Regional Office refused to conduct hearings on the chal-
lenges prior to the issuance of the Report on Challenges and
Objections.
The Regional Office in making its investigation followed the pro-
cedure prescribed in Article III, Section 10, of the Board's Rules and
Regulations-Series 3, as amended, then in effect. We find no merit in
this objection.
(6) The free conduct of the election was interfered with by reason
of the electioneering of Leo Hurwitz, a company supervisor, confiden-
tial employee and representative.
Hurwitz is a television director. In the fall of 1945, as a ,member
of a committee of television studio employees investigating the possi-
bility of union organization, he expressed a preference for the
UOPWA. In-January 1946, a local of the RDG was formed among
the television directors. At a meeting of directors Hurwitz took a
position favoring the RDG over the IATSE. Shortly before the elec-
tion, the wardrobe mistress sought out Hurwitz of her own volition to
discuss the coming election. During their conversation, Hurwitz made
a favorable reference to the UOPWA. The wardrobe mistress was
not a subordinate of Hurwitz's. As a member of the director's unit,
Hurwitz was entitled to express his views with respect to the election.'
It appears that the opinions he expressed were his own and may not
be attributed to the Company which neither authof•ized nor ratified
them. In fact, Hurwitz's expressions of opinion were contrary to
the policy of.the Company which, in stating its own views of the elec-
tion, indicated that it desired the employees to vote for no union.,
Accordingly, we find no merit in this objection.
(7) It was improper for the Regional Office of the Board to have
opened and counted the impounded ballots in the directors' unit in
view of the jurisdictional dispute between the IATSE and the RDG.
At the request of the Regional Director for the AFL, the Board
impounded the, ballots in the directors' unit for 1 week to enable the
AFL to settle the jurisdictional dispute between its affiliates, the RDG,
and the IATSE. Subsequently, the AFL's Regional Director with-
drew his request for impounding of the ballots. It is apparent that
the AFL has been unable to settle the jurisdictional dispute. Under
these circumstances, it was proper for the Board's Regional Director
to open and count the ballots in the directors' unit.
* See Matter of R. R. Donnelley and Sons Company , 60 N. L R . B 635; Matter of The
Hartford-Courant Company , 64 N. L . R. B. 213; Matter of Maywood Hosiery Mills, Inc.,
64 N. L . R. B. 146.
COLUMBIA BROADCASTING SYSTEM, INC. 1371
As to the IBEW's Objections
(1) The IBEW's box on the ballot was shifted front third to fourth
position despite the fact that it had publicized the Number 3 box.
Through an inadvertent error the IBEW was placed in Number 4
position on the ballot instead of the Number 3 position to which it
was entitled. However, the IBEW became aware of the error 4 days
before the election and had ample opportunity, of which it availed
itself, to notify the voters of the mistake. Moreover, the Number 3
position on the ballot secured only nine votes, a number insufficient,
when added to the IBEW's total, to affect the results of the election.
Accordingly, we find that the IBEW was not prejudiced by the shift
in position on the ballot.
(2) The voting hours were inadequate to permit the night shift to
vote.
The polls closed at 5 p. in. Only three eligible voters had working
schedules on election day which did not coincide with the voting hours
set for the election. One of these employees started work at 5 p. m.;
and the other two, at 6 p. in. Both could easily have voted during
the voting hours. Moreover, the IBEW made no objection to the
voting hours when arrangements were made for the election. Accord-
ingly, we find no merit in this objection.
(3) The phrase, "Radio Division" was eliminated from the IBE1V's
-name on the ballot.
Since the name of the unions on the ballots followed the wording
in our Decision, we find that this objection is without merit.
(4) There was open electioneering by the UOPWA at the polls.
The IBEW alleges that two paid organizers for the UOPWA elec-
tioneered among the employees waiting to vote. The only evidence in
support of this allegation was an inconclusive affidavit by an IBEW
observer. The Board's agent in charge of the polling places stated that
he saw no interference with the election. The UOPWA distributed
leaflets on election day but not at the polls. We find that the evidence
offered by the IBEW is insufficient to support this objection.
(5) The Board iniproperly directed the "globing" of the miscel-
Zaneous studio employees.
The IBEW in its Objections and the Company in its Exceptions
contend that the miscellaneous studio employees should not be "globed"
but should be included in the city-wide white-collar unit. In our
Supplemental Decision and Direction of Elections, we stated that the
miscellaneous studio employees might either be included in the city-
wide unit of white-collar workers or be set apart as a separate unit,
depending on their desires as expressed in an election. Upon fuller
See footnote 2, supra.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration of the entire record in the case, we have reached the con-
clusion that the miscellaneous studio employees do not constitute a
cohesive, identifiable group of employees who may effectively bargain
in a separate unit. We are also convinced that these employees have
a community of interest with the employees in the city-wide white-
collar unit and should be included in that unit. Accordingly, we here-
with eliminate the voting group of miscellaneous studio employees and
include such employees in the city-wide unit. Inasmuch as the em-
ployees in the miscellaneous group `also voted in the election held
for city-wide white-collar employees and their ballots may be counted
in determining the results of that election, we find that the modification
of the unit will not result in prejudice either to the employees or the
parties involved.
In accordance with the recommendations of the Acting Regional
Director, we find that the Objections of the IATSE and the IBEW
do not raise substantial and material issues with respect to the elec-
tions. Accordingly, the said Objections are hereby overruled. -
Challenges in the Television Directors' Unit
Lela 'Swi f t was challenged by IATSE on the ground that she is a
writer and therefore ineligible to vote in a unit of directors and as-
sistant directors. This employee is classified as an assistant director-
writer and spends about two-thirds of her time directing and about
one-third writing. Inasmuch as she is predominately an assistant di-
rector, we'deem her to be included in the directors' unit and, therefore,
eligible to vote. In accordance with the recommendation of the Act-
ing Regional Director, we hereby overrule the challenge to her ballot.
Leo Hurwitz was challenged by the IATSE on the ground that he is
a supervisory employee. Hurwitz is a television director and is in
charge of the news department which consists of two other directors,
the news assistant, picture assistant and visual news assistant, with re-
spect to whom he has supervisory authority., However, all television
directors have supervisory authority insofar as they hire and discharge
artists who appear on their programs. Thus it is apparent that the
present unit is a supervisory unit. Consequently, Hurwitz may prop-
erly be included in that unit.' In accordance with the recommendation
of the Acting Regional Director, we hereby overrule the challenge to
Hurwitz's ballot.
Challenges in City-wide White-Collar Unit
Duplicate challenges in miscellaneous group: Inasmuch as we have
eliminated the miscellaneous voting group , and the - employees voting
, See Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66
N. L. R. B . 386; Matter of American Locomotive Company , 67 N. L. R. B. 1123.
COLUMBIA BROADCASTING SYSTEM, INC. 1373
in that election also voted in the city-wide white-collar unit election,
we hereby sustain, in order to avoid duplication, the challenge to the
ballots cast in the miscellaneous group election. There remains for
consideration only the ballots challenged in the city-wide white-collar
unit election, including the ballots of the employees who voted under
challenge in both elections.
Lou Ashworth, Charlotte Brown, Millicent Holloway, James Kane,
Anita Lamont, Barbara Lehr, Mae MacNair, Corinne Martin, Milton
Meltzer, Howard F. Miller, Elizabeth Reid, Madeline Sinos, DeLacey
Thorne, Joseph Tole.
The ballots of these employees were challenged for various reasons.
The Company, the UOPWA, and the IBEW now agree that these
individuals are eligible to vote in the election, in effect withdrawing
their challenges. The IATSE takes no position with respect to them.
In accordance with the recommendation of the Regional Director, we
hereby overrule the challenges to the ballots of these employees.
John Sewall: The Company, the UOPWA, and the IBEW contend
that he is ineligible to vote. The IATSE asserts that he is eligible.
Sewall's duties are comparable to those of producers who are excluded
from all voting groups. We find that Sewall is an excluded employee
and is not eligible to vote in the election. In accordance with the rec-
ommendation of the Acting Regional Director, we herewith sustain
the challenge to his ballot.
Don Hallman, Rudolph Bretz, Blanche Hunter: These employees
are classified as floor manager, film cutter, and wardrobe mistress,
respectively. All three were included within the miscellaneous voting
group. Inasmuch as they are now included in the city-wide white-
collar unit, we hereby overrule the challenges to their ballots.
Freelow Fowler: This employee spends 90 percent of his time per-
forming the functions of a mail, supply and maintenance clerk and the
balance as a television logger. Both clerks and loggers are included
in the city-wide unit. In accordance with the recommendation of the
Acting Regional Director, we hereby overrule the challenge to Fow-
ler's ballot.
Dorothya Claras: At the time of the election, Claras was classified
as a news assistant. Most of her time is spent in interviewing celeb-
rities and in making arrangements for them to appear on television
news shows. We deem her to be included within the city-wide white-
collar unit. Accordingly, we hereby overrule the challenge to her
ballot.
Henry S. Ross: Ross is classified as a picture assistant. Between
one-third and one-half of his time is spent as an assistant director on
news programs. The balance of his time is spent principally in pur-
chasing, filing, and caring for pictures in the photo-library of which
he is in charge. He also does a small amount of writing for news
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows. We deem Ross to be included in the city-wide unit. Accord-
ingly, we hereby overrule the challenge to his ballot.
Chester F. X. Burger: This employee is classified as a visual news
assistant. He spends about half his time in conferences with the
,directors of the news shows, the assistant director, the artist and the
commentator, helping to determine how items of news may be most
effectively represented in visual form. The balance of his time is
spent in the investigation and development of documentary films.
In view-of his duties, we regard Burger as being included within the
city-wide unit. Accordingly, we hereby overrule the challenge to his
ballot.
Mortina Wilbur is a clerk who functions as record and film librarian.
We deem her to be included in the white-collar unit. In accordance
with the recommendation of the Acting Regional Director, we hereby
overrule the challenge to her ballot.
We shall direct that all challenged ballots except that of John
Sewall be opened and counted.
Amended City-wide White-Collar Unit
We find, that all clercial, office, professional and service employees
of the Company, employed in New York City, including clerical
and service employees in the television department, assistant cast-
ing director, floor manager, film cutter, visualizer, animator (photo-
librarian), wardrobe mistress, news assistants, picture assistants, vis-
ual news assistants, record and film librarians, and all employees in
the job classifications listed in Appendix A attached to the Decision
and Direction of Election 7 but excluding salesmen, guards, machin-
ists, draftsmen, engineers, ushers, television directors and assistant
directors, supervisor of operations, all employees in the job classifica-
tions listed in Appendix B attached to the Decision and Direction of
Election," all employees currently covered by collective bargaining
agreements, and all supervisors with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status -of em-
ployees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
DIRECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
I See footnote 1, supra.
8 See footnote 1, supra.
COLUMBIA BROADCASTING SYSTEM, INC. 1375
Act, and pursuant to Sections 203.55 and 203.56 of National Labor
Relations Board Rules and Regulations-Series 4, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Columbia
Broadcasting System, Inc., New York City, the Regional Director
for the Second Region,ishall, pursuant to the said Rules and Regula-
tions within ten (10) days from the date of this Direction, open and
count the 'challenged ballots of the following employees:
(a) In, the television directors' unit-Lela Swift and Leo Hur-
witz; (b) In the city-wide white-collar unit-Lou Ashworth, Char-
lotte Brown, Millicent Holloway, James Kane, Anita Lamm, Bar-
bara Lehr, Mae McNair, Corinne Martin, Milton Meltzer, Howard
F. Miller, Elizabeth Reid, Madeline Sinos, DeLacey Thorne, Joseph
Tole, Don Hallman, Rudolph Bretz, Blanche Hunter, Dorothya
Claras, Henry S. Ross, Chester F. X. Burger, Freelow Fowler, and
Mortina Wilbur. Upon the conclusion of the counting of such bal-
lots, he shall thereafter prepare and cause to be served upon the
parties Supplemental Tallies of Ballots.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Second Supplemental Decision and Direction.
IVA