L. B. Wilson, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1943

54 N.L.R.B. 125 (N.L.R.B. 1943)

In the Matter of L. B. WILSON, INC. and AMERICAN FEDERATION OF
RADIO ARTISTS (A. F. OF L.)
Case No. 9-R-1060.-Decided December 28, 1943
Mr. Sawyer A. Smith, of Covington, Ky., and Mr. Fred A. Palmer,
of Cincinnati, Ohio, for the Company.
Mr. Leonard R. Lyons, of New York City, and Mr. Andre Carlon, of
Cincinnati, Ohio, for the Union.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
dpon a petition duly filed by American Federation of Radio Artists
(A. F. of L.), herein called the Union, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of L. B. Wilson, Inc., Cincinnati, Ohio, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due,notice before Benjamin E. Cook, Trial Examiner.
Said hearing was held at Cincinnati, Ohio, on November 16 and 17,
1943. The Company and the Union appeared, participated, were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
L. B. Wilson, Inc., is a Kentucky corporation, engaged in the
business of radio broadcasting. It operates through radio station
WCKY, located in Cincinnati, Ohio. The station broadcasts approxi-
mately 18 hours per day under authority of the Federal Communi-
cations Commission, over a designated wave length of 1,530 kilocycles.
54 N. L R B., No 23.
125
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The station has 50,000 watts power, the maximum permitted to long-
wave broadcasting stations. Approximately 90 percent of the Com-
pany's revenues comes from advertisers who are engaged in inter-
state commerce.
The Company admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
American Federation of Radio Artists, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about October 22, 1943, the Union requested recognition as
the exclusive bargaining representative of the radio artists in the
Company's employ. The Company has refused to grant such recog-
nition until the Union has been certified by the Board in an appropriate
unit.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Union represents a substan-
tial number of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within 'the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TRIE APPROPRIATE UNIT
The Union in its petition requested a unit consisting of all persons
in the employ of the Company who appear before the microphone as
radio artists. During the hearing the Union indicated that by the
term "radio artists" it means persons whose principal income is derived
from earnings as radio performers. The Company agreed generally
with the position of the Union,- differing, however, as to the inclusion
or exclusion of certain specific employees, discussed below.
Robert Fleming: Fleming is the program manager and production
manager of the station. He is in complete charge of all the staff
artists and has authority to hire and discharge. He apportions the
duties of the various artists, and plans ideas for programs. On occa-
sion, Fleming appears before the microphone. Because Fleming is
a supervisory employee, the Union would exclude him from the unit.
1 The Field Examiner reported that the Union submitted a sheet entitled "Bargaining
Authorizations," bearing 8 appar ntly genuine original signatures of persons listed on the
Company's pay roll of Novembg; 1, 1943. Said pay roll contained the names of 14, em-
ployees in the appropriate unit.
L. B. WILSON, INC. 127
Because he appears before the microphone, the Company contends that
he should be included in the appropriate unit. Since he is a super-
visory employee we shall, in accordance with our usual policy, exclude
Fleming from the unit.
Dorothea Ehbauer: Ehbauer, a graduate of a school-of dramatics
and radio training, plans a career as a radio artist. When she applied
for work at the station, no work was available as a radio artist so she
accepted employment in a clerical position. Since August of this
year she has been given extra parts on the air and shortly before the
hearing she was given a daily program of }per own, for which she is
paid. Since Ehbauer appears before the microphone the Company
seeks to include her in the unit. Because she still spends the major
portion of her time at clerical duties and cannot be said to earn her
living as a radio artist, the Union would exclude Ehbauer from the
unit. The Union however, requested her to join its ranks and admits
that if it becomes the certified bargaining representative, it may insist
that she join the Union or cease entirely her appearances before the
microphone. It is also relevant that the Union, in a similar case
which was before us in 1940, requested that regular clerical employees,
who did part-time work before the microphone, be included in the
unit 2 , Ehbauer's work before the microphone will undoubtedly in-
crease in the near future. We shall include her in the appropriate
unit.
Theodore Hahn: Hahn is classified as the music librarian. His
primary function is to catalog and file all recordings and transcriptions
and to pull them from the files as they are needed. In addition it is
his duty to see that the Company violates no copyrights in broad-
casting musical compositions. Hahn is a former symphony con-
ductor and instrumental musician and, by reason of this background,
writes and presents on the air program notes for the broadcasts of
the Cincinnati Symphony Orchestra. He also conducts a short pro-
gram of his own once a week. The Company contends that because
Hahn appears before the microphone he should be included in the
unit. The Union contends that his radio appearances are merely in-
cidential to his primary occupation as music librarian and also that
his inclusion in the unit would be likely to result in a conflict of juris-
diction with the American Federation of Musicians. The Union
indicated that it customarily excepts such individuals from its con
tracts and would do so if certified in the instant proceeding. We
shall exclude Hahn from the appropriate unit.
Nancy Prentice: Prentice is a child psychologist who has broad-
cast a regular program on child psychology from the Company's
station for several years. Whenever possible the Company has ob-
2 Matter of Star-Times Publishing Company, 25 N. L. R. B. 492.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tamed a sponsor for her program. When Prentice has a sponsor, she
is carried on the pay roll of the sponsor, "reverting automatically" to
the Company 's pay roll when her sponsorship expires, according to
the testimony of the station manager. She is presently on the pay
roll of a local • department store. The Company contends that Pren-
tice, even though not on its pay roll, is -really an employee of the station
and, since she appears before the microphone , should be included in
the unit. The Union does not object to her inclusion in the unit, but
contends that, if Prentice is included in the unit , then Pollay West
O'Brien, discussed below, should also be included . Although there is
testimony indicating that when the Company enters into a contract
with a sponsor for Prentice 's program , the contract price is reduced
by the amount of her salary , the evidence is unclear as to the extent to
which, if at all, the Company retains control over her activities. The
contract with Prentice 's present sponsor is not in evidence nor is there
adequate evidence as to the Company 's relationship to Prentice during
periods when her program is unsponsored . The record also fails to
reveal when her current sponsorship expires. We shall permit Pren-
tice to vote , subject to challenge. If her ballot can affect' the outcome
of the election , additional evidence pertaining to Prentice 's employee
status will be obtained and a decision made thereon as to her inclusion
in or exclusion from the unit.
Pollay Vest O'Brien: O'Brien is not and never has been in the em-
ploy of the Company. She is an employee of an advertising agency
which buys radio broadcasting time from the Company and she con-
ducts a regular program over the Company's facilities . She prepares
her program at the office of her employer and appears at the radio
station only when she conducts her program . The Union seeks to in-
clude her in the unit because she is a radio artist who appears before
the Company 's microphones . The Company would exclude her since
she is not in its employ . The Union presented no evidence to indicate
how it would bargain with the Company on behalf of an employee of
another firm. We shall exclude O'Brien from the unit.
Sylvia Brown : Brown is an employee of the Family Consultation
Service, a unit of the local Community Chest. She appears regularly
on the radio , but receives no additional compensation for her work on
the air, it being merely incidental to her regular work . Both parties
agreed that she should be excluded from the unit , the Company, how-
ever, contending that she should be treated exactly as O'Brien. Since
we have excluded O'Brien, no dispute arises as to Brown. She will
be excluded from the unit. ,
In substantial conformance with the stipulation of the parties and
the above conclusions we find that all persons in the employ of the
Company, who appear before the microphone as radio artists, in-
cluding Dorothea Ehbauer, but excluding Robert Fleming, Theodore
L. B. WILSON, INC. 129
Hahn , Pollay West O'Brien, Sylvia Brown, and any supervisory em-
ployees with authority to hire, promote, discharge , discipline, or
otherwise effect changes in the status of employees , or effectively to
recommend such action, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sect-ion 9 (b) of
the Act.
We make no finding at this time with reference to the status of
Nancy Prentice.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein , subject to the limitations and additions set forth in the
Direction.
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 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with L. B. Wilson,
Inc., 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 , under the direction and supervision of the
Regional Director for the Ninth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11 of said Rules and Regulations , among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction , including employees who did not work during
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off , and including employees in the armed forces of the
United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the election,
to determine whether or not they desire to be represented by American
Federation of Radio Artists, affiliated with the American Federation
of Labor, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.
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