Midwest Television, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 413 (N.L.R.B. 1964)

MIDWEST TELEVISION, INC., STATION WMBD-AM-FM-TV 413
nance units unless they are specifically excluded therefrom or unless
they are expressly included in other units." Here, as plant clerical
employees are not specifically excluded from the production and
maintenance unit, and as the OEIU was not certified to represent
plant clerical employees and the record otherwise fails to establish
that it represents plant clerical employees,7 we find that the two
employees should be included in the production and maintenance unit
represented by the IAM.
[The Board clarified the production and maintenance unit hereto-
fore established in Cases Nos. 3-RC-423 and 3-RC-429 to include
therein, as plant clerical employees, the two employees involved
herein classified as perpetual inventory clerks.] 8
8 Equipment Sales Co., Inc , 146 NLRB 865 ; American Beryllium Company, supra.
7 While the record establishes that the OEIU represents the typist clerk , employed in
the receiving department in the plant area and working under the supervision of the stock-
room foreman , this fact, standing alone, is insufficient to show that the OEIU represents
plant clerical employees
8 This Decision and Order Clarifying Bargaining Unit is not to be construed as a new
certification.
Midwest Television , Inc., Station WMBD-AM-FM-TV and
American Federation of Television and Radio Artists, AFL-
CIO, and International Brotherhood of Electrical Workers,
Local 1292, AFL-CIO, Jointly. Case No. 13-CA-5418. Decem-
ber 16, 1964
SUPPLEMENTAL DECISION AND ORDER 1
On October 29, 1964, Trial Examiner Fannie M. Boyls issued her
Report on Evidence Regarding Challenged Ballots," on remand,2 in
the above-entitled proceeding, which report is attached hereto.
Neither party has filed exceptions to the report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner-made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board, has considered the
report and the entire record in the case, and hereby adopts the fac-
tual findings of the Trial Examiner.
1 The Board 's original Decision and Order is reported at 144 NLRB 972.
2 This proceeding was remanded to the Regional Director for Region 13, by Board Order
dated January 27, 1964, and the record reopened for the purpose of holding a further
hearing before a Tiial Examiner to receive evidence with respect to the challenges to the
ballots of William Dioylan, Lloyd Peterson, David Phillips, Dee Richards, and Milton
II Budd cast in the election conducted on December 4, 1961 , in Case No . 13-RC-8194
150 NLRB No. 41.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A review of the record herein reflects that a strike occurred at sta-
tion WMBD-AM-FM-TV in Peoria, Illinois, on November 16, 1961.
It was still in progress on December 4, 1961, when the election was
held, and did not end until February 1962. The five employees here
in issue did not join the strike and their duties were admittedly
broadened during the strike. The sole issue to be determined is
whether their duties prior to November 17, 1961, were such as to
bring them within the stipulated unit which. includes, in essence, all
persons employed by the Company who appear in any manner on a
regular basis in services before the microphone or camera.
The Trial Examiner's findings of fact establish that Moylan did
not appear on the air prior to November 17, 1961; that appearances
on the air by Phillips and Peterson prior to that date were confined
to irregular appearances in taped spot commercials; and that Rich-
ards and Budd, in addition to appearing in spot commercials on an
irregular basis, each appeared on a weekly radio or television show.
In this latter connection the record demonstrates that Richards' total
air time amounted to approximately 2 hours a month, and Budd's
total air time amounted to approximately one-half hour a month.
No exceptions were filed to these findings.
On the basis of the above findings as more fully set forth in the
Trial Examiner's Report, we find that Moylan was not included in
the unit because he made no appearances on the air prior to critical
date of November 17, 1961; that Phillips and Peterson were not
included in the unit because their appearance on the air were on an
infrequent and irregular basis; 3 and that Richards and Budd were
not included in the unit because their appearances on weekly shows
constituted an insignificant part of their normal duties, and amounted
to so little air time as to be insufficient to create a real community
of interest with employees whose regular duties required frequent
appearances before the microphone or camera 4
Accordingly, we find that the challenges to the ballots 'cast by
Moylan, Phillips, Peterson, Richards, and Budd in the election con-
ducted in Case No. 13-RC-8194 were properly sustained. We, there-
fore, find no merit in Respondent's contention that the certification'
of representatives issued in Case No. 13-RC-8194 was invalid because
the ballots of these employees were not counted.
In view of the foregoing, we affirm our Decision and Order in this
proceeding which issued on October 8, 1963.
3 The record demonstrates that "secretaries and other employees walking down the hall"
were also called in to perform such commercials . Such employees are not in the unit
4 11ichards and Budd were so little impressed with their on-the -air duties that they
gave statements to the Board's Regional Director during the investigation of, the chal-
lenges that they spent little or no time on the air prior to the strike.
MIDWEST TELEVISION , INC., STATION WMBD-AM-FM-TV 415
ORDER
IT Is aEREBY ORDERED that the Board's Order of October 8, 1963, in
this case be, and it hereby is, affirmed with the following modification :
Paragraph 2(c) is amended by substituting the date of this Order
for the date of the Board's October 8, 1963, Order.5
5 The address for the 13th Regional Office, given in the Appendix to the Trial Examiner's
Intermediate Report, is amended to read: 881 U.S. Courthouse and Federal Office Build-
ing, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572.
REPORT ON EVIDENCE REGARDING CHALLENGED BALLOTS
STATEMENT OF THE CASE
On October 8, 1963, the Board issued its Decision and Order finding that Respondent
had unlawfully refused to bargain with the Unions which had been jointly certified on
November 7, 1962, as bargaining representative of Respondent 's employees in an
appropriate bargaining unit. Thereafter , on October 16, 1963 , Respondent filed a
motion for reconsideration , contending that substantial and material factual issues
existed concerning five named employees whose ballots had been challenged in the
underlying representation proceeding , that those factual issues had not 'been fully
litigated, and that Respondent had been denied due process of law. The Board, on
January 27, 1964, ordered that the hearing in this case be reopened to receive evidence
with respect to the challenges to the ballots of those five individuals . Pursuant to
that order, a hearing was held before Trial Examiner Fannie M . Boyls, at Peoria,
Illinois, on April 17 and May 11, 1964.
The order reopening the record does not direct the Trial Examiner to make recom-
mendations concerning the disposition of the challenged ballots and no attempt will
be made to do so. Credibility issues are presented , however, and in this report an
attempt will be made to resolve those issues. In evaluating the credibility of the
witnesses , I have relied at least in part on their demeanor at the hearing.
The Evidence Relating to the Five Employees Whose Challenged Ballots Are in Issue
The issue presented at this reopened hearing was whether the five employees, the
challenge of whose ballots in the representation proceeding had been sustained, were
during the payroll period ending November 17, 1961, a part of the unit found by the
Board to be appropriate . This unit consists of:
All persons employed by the Company at its broadcasting facilities known as
Station WMBD-AM-FM-TV located in and around Peoria, Illinois, who appear
in any manner on a regular basis in services before the microphone or camera
including but not limited to those who speak , act, sing or in any manner perform
as talent as such terms is [sic] used and understood in the broadcasting industry.
This also applies to all persons rendering services in the field of news, who
appear before a microphone or camera on a regular basis. [who were employed
during the payroll period ending November 17, 1961,] but excluding office clerical
employees , instrumental musicians performing as such, technicians , guards,
professional employees and supervisors as defined 'n the Act , and all other
employees.
A strike had occurred on November 16, 1961 , and was still in progress on Decem-
ber 4 , 1961 , when the election was held . The strike did not end until sometime in
February 1962. The five employees here in issue did not join the strike and it is
undisputed that their duties, during the strike , were broadened to include some of the
work of strikers. The evidence adduced at this hearing, although relating chiefly to
the prestrike period, refers also to duties of these employees during the strike and after
its termination . Since the voting eligibility date was November 17, 1961 , it would
appear that any changes in the employees' duties subsequent to that date would be
immaterial to the issues here presented and they will , therefore , not be considered in
this report.
William R . Moylan was employed by Respondent on October 15, 1960, as an
account executive or salesman for Respondent 's television station . It is undisputed
that he had never appeared on the air until November 17, 1961, the day after the
775-692-65-vol. 150-28
416 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
strike commenced. According to his credited testimony, on that day, because the
station was shorthanded, he did one station break when called upon to help out in
the emergency.1
Lloyd Peterson was employed by Respondent on May 23, 1960, as its director of
continuity and on May 16, 1961, became its national sales coordinator. It is undis-
puted that his basic duties prior to the strike consisted of the writing and preparation
of materials for television commercials, promotions, and public service. According
to his credited testimony, he did little on-the-air work before the strike, but there were
some occasions when he was called upon to do some spot announcements. Upon these
occasions-from three to five times a month-his voice would be taped for use on
radio commercial spots. It would take 2 or 3 minutes for him to prepare a 1-minute
commercial. Sometimes the same tape on which the spot commercial appeared would
be run and rerun a number of times. After the strike started, Peterson spent from 40
to 50 percent of his time on the air or preparing for on-the-air work. Upon the
termination of the strike he returned to his normal duties.2 The record shows that
secretaries or other employees walking down the hall were occasionally called upon
to use their voices in the recording of a spot announcement in much the same way as
Peterson's voice was used in the prestrike period. General Manager Brown testified,
and I accept his testimony in this respect, that when interviewing almost all employees
for hire, he took into consideration their previous experience or abilities which might
qualify them for such on-the-air duties.
David Phillips was hired at Respondent's television station in May 1961 as director
of continuity and client service. He testified that his duties as such director included
writing commercials and public service copy, scheduling public service announce-
ments, assisting in any preparation necessary to put the spots on tape, and at various
times helping in the announcement of those spots. Although he testified in conclu-
sionary terms that prior to the strike his duties had included the "making of television
and radio spot announcements on a regular basis, as needed," he explained that by
this he meant that about four or five times a month he had made tapes for spot
announcements which were later broadcast. Tapes, according to Phillips, are made
in order "to eliminate errors ... to make it more convenient to add production values
that are perhaps chancy on live air," and "to make announcements available when the
talent involved might not be available on a live basis"; and once made, the tapes are
usually run many times. Phillips conceded that at times a secretary or almost any
employee would likewise occasionally be called upon to furnish his or her voice in
taping a spot. In a sworn statement given to a Board agent on January 3, 1962, which
Phillips acknowledged at the hearing to be true and which I am convinced is true, he
stated that prior to the strike he did little or no on-the-air work. It is undisputed that
after the strike started, Phillips did a substantial amount of on-the-air work, spending
about 25 of the approximately 90 or 100 hours a week which he then worked in
recording material for broadcast and making announcements on the air. The testi-
mony of General Manager Brown and Engineer Don Math regarding Phillips' duties
is, in general , not inconsistent with Phillips' testimony.
Lomertt D. (Dee) Richards was hired by Respondent in October 1959 as a con-
tinuity writer and to help make commercials. For some time prior to the strike, his
voice was taped on a commercial between two and five times a month, and was there-
after run on the air. In addition, however, he appeared regularly on the air each
Saturday on a half-hour "Bids for the Kids" program which was broadcast over the
radio, and he received a talent fee of $4 a week for such appearances. His job on that
program was to act as an aisle man-with a microphone in hand, interviewing over
the air the children who participated in the program-and also, as stage manager, to
1 The testimony of William L. Brown, Respondent's general manager, appears some-
what confused on this issue He at first testified that prior to the strike Moylan appeared
on a regular basis on sports programs , primarily sports remote programs , but he later
conceded that these appearances were during and subsequent to the strike, and that Moylan
had not appeared on the air before the strike
g Don Math, employed by Respondent as an engineer prior to the strike, with the duty
among other things of running audio and camera, testified that he had never heard Peter-
son on the air prior to the strike. Respondent's General Manager Brown, on the other
hand, testified that both before, during, and after the strike Peterson appeared on a
regular basis on primarily promotional announcements on radio and television and on
some commercial announcements . I regard the testimony of Math and Brown as less
reliable than that of Peterson and do not credit it insofar as it is inconsistent with the
testimony of Peterson set forth in the text above and as corroborated by his statement
given' a Board agent on January 3, 1962, which Peterson vouched for as true at the
hearing.
MIDWEST TELEVISION , INC., STATION WMBD-AM-FM-TV 417
chat over the air with the auctioneer on the program. There is no substantial dispute
regarding the above facts. Richards' testimony regarding his regular Saturday on-the-
air work is not only corroborated by that of other witnesses, but by Respondent's
records which show that he was regularly paid a talent fee for that work.3
Milton H. Budd has been employed'by Respondent since 1932. Prior to October
1959 he had been an announcer at the radio station. During that year he became
TV film librarian. As film librarian he kept records of commercial films which were
referred to as spot announcements. After receiving them he would record them in his
books as available for use on television. He also frequently screened movies to ascer-
tain that they were of sufficient mechanical quality and that the moral content was
acceptable. After the movies were used, Budd would see that they were then sent
back to the distributor or to another television station. In addition to this work, Budd
did some on-the-air work prior to the strike but there are conflicts in the testimony
regarding the scope of his on-the-air duties. In an affidavit given to a Board agent on
January 3, 1962, Budd states: "Prior to the strike I did little or no on-the-air work with
the exception that on occasion I would do spot announcements." His testimony is
somewhat confusing and inconsistent with this affidavit. Thus, he testified that in the
weeks immediately preceding the strike, it frequently became necessary for him to
make or participate in commercial or promotional announcements which required
microphone or camera work, and that he also was on camera weekly as host of a
regular Friday or Saturday night show, called "Nightmare." With respect to the
commercial or promotional announcements, he explained that he made recorded
announcements or filmed spots which appeared later on radio or television and that
he did this work only when asked to do it and not according to any particular
schedule. I am convinced on the basis of his testimony and that of General Manager
Brown, Operations Manager Robinson, and former employees Math and -Dodson
that he performed this type of work before the strike at least as often if not more often
than Peterson, Phillips, and Richards. It is undisputed that these announcements, like
those recorded by the other employees treated above, were sometimes run on radio or
television• a number of times. , It is also undisputed that when the strike started on
November 16, Budd took over some announcing duties and thereafter spent a sub-
stantial amount of his time on live broadcasts over Respondent's radio. At the time
of the hearing, he was still regularly doing a 6:30 to 10 morning show.
There is a sharp dispute among the witnesses as to whether during the period of
several weeks or several months prior to the strike Budd appeared as a voice or image
leading in and out of the weekly late television movie "Nightmare." It is undisputed,
however, that no one except Budd had ever hosted this show. Respondent has been
showing "Nightmare" on its television program for many years, but during one period
of at least several months' duration that show was off the air. One witness, Don Math,
testified that the movie was not shown for several months immediately prior to the
strike, and another witness, William L. Dodson, testified that for some time prior to
the strike, Budd had not been-filmed for the lead-ins and lead-outs and that slides were
used instead. This testimony is consistent with the affidavit of Budd given to a Board
agent on January 3, 1962, which does not mention the show "Nightmare" and which
recites that prior to the strike Budd did little-or no on-the-air work except for occa-
sional spot announcements.4 Nevertheless, I am convinced from the testimony of
Budd,-General Manager Brown, Operations Manager Robinson, Cashier Mary Tobin,
and Chief Photographer Whitmore, and from the program logs and filming schedules
produced and explained at the hearing, that Budd did, in fact, during the period of
several months prior to the strike, as well as thereafter, appear on the film which
opened and closed the "Nightmare" movie. The period during which "Nightmare"
was off the air, according to 'the credited testimony of Robinson, was immediately
prior to June 1-961. I was, moreover, particularly impressed with the testimony of
Chief Photographer Whitmore who identified and explained the records of film
processed during the prestrike period. These records for at least each week between
September 8 and November 16, 1964', show that from 100 to 150 feet of film for the
opening and closing of the "Nightmare" show was processed and that sound on film
was used in the processing. According to Whitmore's credited testimony, the voice of
Budd was inserted on' the film which included Budd's distorted image and which
sin a statement to a Board 'representative on January 3, 1962, Richards apparently
forgot to mention his regular Saturday assignment and signed the statement which de-
scribes him as having done little or no on-the-air work prior to the strike. The statement,
as Richards testified, is therefore incorrect.
Budd 's only explanation for having failed to mention "Nightmare" in his affidavit was
that when asked about his on-the-air work, he was thinking in terms of his voice being
heard over radio.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduced each "Nightmare" movie during this period. The voice inserts were not
mere general comments which could have been made once and used repeatedly there-
after, but were related to each individual movie. Each 100 feet of the film takes
about 13/a minutes to run.
Gould-National Batteries, Inc. and Gordon Kenley , Petitioner
and International Brotherhood of Electrical Workers, Local
Union 217, AFL-CIO . Case No. 27-RD-195. December 16, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer Alli-
son E. Nutt. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Leedom and Brown].
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner, an employee of the Employer, asserts that the
Union, a labor organization, is no longer the representative of the
employees designated in the petition as defined in Section 9 (a) of
the Act.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a decertification election limited to employees
at the Employer's Ogden, Utah, plant. The Employer agrees with
the Petitioner that the employees at the Ogden plant constitute a
separate appropriate unit. The Union 1 and Gould Battery Workers
Council, EM-2, IBEW, AFL-CIO,2 which, as discussed below, has
bargained with the Employer on behalf of various local unions of
the International Brotherhood of Electrical Workers, AFL-CIO,3
contend that because of a bargaining history on a broader basis the
requested unit is inappropriate and the only appropriate unit is a
multiplant unit, including the Ogden plant.
The Employer is primarily engaged in the manufacture, distribu-
tion, and sale of industrial batteries, automotive batteries, and other
automotive parts at 32 manufacturing plants and 150 sales and ware-
Hereinafter called Local 217.
a Hereinafter called the Council.
a Hereinafter called the IBEW.
150 NLRB No. 26.