Pacifica Foundation-KPFA

National Labor Relations Board - Board Decisions

Nov 25, 1970

186 N.L.R.B. 825 (N.L.R.B. 1970)

PACIFIC FOUNDATION-KPFA 825
Pacifica Foundation-KPFA,1 Employer -Petitioner and
National Association of Broadcast Employees and
Technicians , AFL-CIO,2
Pacifica Foundation-KPFA, and Bobbie Harms, Peti-
tioner and National Association of Broadcast
Employees and Technicians , AFL-CIO. Cases
20-RM-1196 and 20-RD-607
November 25, 1970
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon separate petitions duly filed under Section
9(c) of the National Labor Relations Act, as amend-
ed, a consolidated hearing was held before Hearing
Officer Helen A. Phillips. Following the close of the
hearing, and pursuant to Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Regional Director
transferred these cases to the Board for decision. The
parties have waived the filing of briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in these cases, the Board
finds:
1. The Union, contrary to the Employer-Petitioner
in Case 20-RM-1 196 and the Petitioner in Case
20-RD-607, argues that the Employer is a nonprofit,
noncommercial, educational institution over which
the Board should not assert jurisdiction. The record
reveals that the Employer is engaged in commerce
within the meaning of the Act, and for the reasons
explicated below the Board finds that it will effectuate
the policies of the Act to assertj urisdiction herein.
Pacifica Foundation, a California corporation
which maintains its principal offices at Berkeley, is a
nonendowed educational organization, having as its
main purpose the ownership and operation of
educational radio stations which operate on the FM
band under certificates from the Federal Communi-
cations Commission. At the time of the hearing in
these matters3 Pacifica Foundation owned and
operated three FM stations in California: KPFA in
Berkeley, which is involved in these proceedings;
KPFB, a sister station to KPFA and also located in
Berkeley; and station KPFK in Los Angeles. In
addition, through a wholly owned subsidiary,
WBAI-FM, Inc., Pacifica Foundation owns and
operates station WBAI-FM in New York City, as
well as a news bureau in Washington, D.C., which
provides news and programing for all of the stations
operated by the Foundation. All of the stations
operated by Pacifica Foundation are licensed by the
Federal Communications Commission, and the licen-
ses for stations KPFB and KPFK restrict their
operations to the band reserved for noncommercial,
educational channels. The licenses issued to stations
KPFA and WBAI-FM allow them to operate
commercially, although in practice they have not
done so.
Stations KPFA and KPFB are operated as a single
entity, on the same premises, and with the same staff
of employees.4 KPFA has a broadcast range which
extends outside of California into Nevada, and
occasionally, depending on atmospheric conditions,
into Arizona. The types of programs broadcast by
KPFA, and the other stations operated by Pacifica
Foundation, are (a) music, (b) news and public
affairs, and (c) drama and literature, which consume,
respectively, 50, 30, and 20 percent of their broadcast
time. Station KPFA, like its parent Pacifica Founda-
tion and the other stations in the system, does not
operate for a profit, sells no broadcast time for
advertising purposes, and except for a small stipend
received from the University of California for a
weekly broadcast of a medical conference, receives no
compensation for the programs it broadcasts.
During the calendar year 1968, a representative
period of its operations, Pacifica Foundation had a
total gross income of nearly $1 million, which was
derived principally from subscriptions from listeners
and contributions. During the same period the
combined gross income of stations KPFA and KPFB
was approximately $225,000, and of this total approx-
imately $215,000 was derived from the subscriptions
of listeners and the contributions of patrons. The
remaining $10,000 of gross income was derived from
miscellaneous sources such as the rental of a transmis-
sion tower, sales of tapes and recordings, and paid
advertising used to support the publication of a
monthly program folio. The income derived by
Pacifica Foundation and its member stations is tax
exempt under Federal and state revenue provisions.
As for expenditures, KPFA subscribes to a national
I The name of the Employer-Petitioner appears as amended at the operate additional educational stations at Houston, Texas, and
hearing Washington. D C
2 The name of the Union appears as amended at the hearing 4 Station KPFB has certain technical equipment which permits it to
3 At the time of the hearing Pacifica Foundation had applied for beam broadcast waves into the Berkeley hills, and, accordingly, it is
additional licenses from the Federal Communications Commission to separately licensed by the FCC
186 NLRB No. 120
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wire service at a cost of approximately $200 per
month, obtains news and programming assistance
from the Foundation's news bureau in Washington,
D.C., and on a part-time basis employs reporters in
other States and in foreign countries. Station KPFA,
and the other stations operated by Pacifica Founda-
tion, do not conduct educational classes or grant
degrees, but do make their broadcast facilities
available to students of institutions of higher learning
for training purposes.
The Union contends that inasmuch as the Employer
is a noncommercial and nonprofit institution engaged
exclusively in the dissemination of knowledge as an
integral part of the educational system, the Board
should adhere to its longstanding policy and exercise
its discretion to deny the assertion of its jurisdiction in
these cases.5 However, the Board has recently
announced that it will now assert jurisdiction over
private colleges and universities, though they are
nonprofit, if their operations are such as to have a
substantial impact on commerce .6 As we have
extended our jurisdiction over such private colleges
and universities, there remains no substantial justifi-
cation for withholding the exercise of the Board's
powers over employers whose operations are adjunc-
tive to the educational system. The evidence set forth
above reveals that legal jurisdiction exists and the
Employer's operations do have a substantial impact
on commerce, and inasmuch as its gross volume of
business meets the Board's discretionary standards
for jurisdiction over like commercial ventures,7 we
find that it will effectuate the policies of the Act to
assert jurisdiction in these cases.
s Cf. United States Book Exchange, Inc., 167 NLRB 1028, and cases
cited therein , which , to the extent they are inconsistent with the decision
reached herein , are hereby overruled.
6 Cornell University, et a!., 183 NLRB No. 41.
r Raritan Valley Broadcasting Company, Inc., 122 NLRB 90.
8 Although the bargaining agreement on its face is limited to the
employees of station KPFA, its terms have nevertheless been extended to
like classification of employees technically employed by station KPFB.
9 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
2. The Union is a labor organization within the
meaning of the Act.
3. The record reflects that the Union was recogniz-
ed by the Employer in 1962 as the bargaining
representative for certain of its employees in the unit
hereinafter described, and the Employer and the
Union have been parties to a series of collective-
bargaining agreements, the most recent of which
expired by its terms on October 31, 1969.8 By its
petition in Case 20-RM-1196 the Employer asserts
that the Union is no longer the majority representa-
tive of its employees, and the Petitioner in Case
20-RD-607 similarly asserts that the currently recog-
nized Union is no longer the representative within the
meaning of Section 9(a) of the Act. As the Union
claims to represent the employees in the bargaining
unit, we find that a question affecting commerce
exists concerning the representation of certain em-
ployees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. We find that the following described unit, which
accords with the unit previously recognized and
described in the most recent contract between the
parties, is a unit appropriate for the purposes of
collective bargaining:
All regular employees of the Employer performing
operations, programming, and office and clerical
work, excluding volunteers, bookkeepers, confidential
secretaries, guards and supervisors as defined in the
Act.
[Direction of Election 9 Omitted from Publication.]
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 20 within 7 days of
the date of this Decision and Direction of Election . The Regional Director
shall make the list available to all parties to the election . No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed.