United Broadcasting Co., Inc.

National Labor Relations Board - Board DecisionsApr 14, 1976

223 N.L.R.B. 908 (N.L.R.B. 1976)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Broadcasting Co., Inc . and American Federa- tion of Television and Radio Artists , Washington- Baltimore Local , Petitioner. Case 5-RC-9448 April 14, 1976 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On August 22, 1975, the Petitioner, American Fed- eration of Television and Radio Artists, Washington- Baltimore Local, filed a petition seeking to represent certain employees at the Employer's WFAN-FM ra- dio station. On September 16, 1975, the Regional Di- rector dismissed the petition. Upon appropriate request for review, the Board concluded that the appeal raised issues which could best be resolved after hearing and accordingly, on November 11, 1975, reinstated the petition and re- manded the case to the Regional Director for the purpose of conducting a hearing. A hearing was held on December 9, 1975. On December 12, 1975, the case was transferred to the Board. Thereafter, the parties filed briefs in support of their respective posi- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding 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. The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER United Broadcasting Co., Inc., is a Maryland cor- poration engaged in the operation of several radio and television stations throughout the United States, including stations WFAN-FM and WOOK-AM, lo- cated in Washington, D.C. During the past 12 months, a representative period, the Employer's gross volume of business exceeded $100,000. During this same period it purchased and received materials valued in excess of $1,000 directly from points locat- ed outside the District of Columbia. The parties have stipulated, and we find, that the Employer is, and at all material times has been, an employer within the meaning of Section 2(6) and (7) of the Act. We find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties have stipulated, and we find, that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. III. QUESTION CONCERNING REPRESENTATION A. Facts The Employer operates two radio stations on the same premises in Washington, D.C. Those stations are WOOK, an AM station, whose programming is directed at Washington's Black community, and WFAN, a Spanish-language FM station whose pro- gramming is directed at Washington's Spanish- speaking residents. WOOK's employees are repre- sented by the Petitioner. WFAN's employees are not. On August 18, 1975, the WFAN employees, through two informally designated representatives, asked the Petitioner to represent them. At issue in this case is whether Petitioner is precluded from rep- resenting the WFAN employees by a provision made part of its 1974 collective-bargaining agreement with the Employer covering the WOOK employees. That provision states: In accordance with your request, AFTRA [the Petitioner] agrees that during the term of the 1974-77 AFTRA-WOOK Collective-Bargain- ing Agreement AFTRA will neither undertake to organize the Announcers/Newsmen em- ployed at Station WFAN, nor encourage the employees covered by the Agreement to engage in such organizational efforts. The present collective-bargaining relationship be- tween Petitioner and the Employer commenced in 1972. As part of the 1972 negotiations, Evelyn Frey- man, Petitioner's executive secretary and principal negotiator, agreed to a provision which closely re- sembles the one agreed to in 1974. The 1972 provi- sion states: In accordance with your request, during the life of the WOOK Agreement, which we are now negotiating, AFTRA will not undertake to orga- nize the Announcers/Newsmen of WFAN-FM. Evelyn Freyman testified that, since her appoint- ment as the Petitioner's executive secretary, the Peti- tioner has had a policy of never actively organizing. The Petitioner's policy is to let employees who want to be represented come to the Union on their own initiative. Therefore, in agreeing to the 1972 provi- sion she felt she was simply promising to do what had always been her policy. E. Carlton Myers, Jr., the Employer's general man- 223 NLRB No. 124 UNITED BROADCASTING CO., INC. ager , believed that the 1972 agreement obligated the Petitioner to refrain from organizing or representing the WFAN employees.' He testified that such an agreement was important to him because unioniza- tion of WFAN would make it economically impossi- ble to continue operating WFAN as a Spanish-lan- guage station. In 1974, Petitioner and the Employer negotiated a new 3-year collective-bargaining contract. Negotia- tions were conducted by E. Carlton Myers, Jr., for the Employer and by Evelyn Freyman for Petitioner. The topic of Petitioner's representation of WFAN employees was broached during these negotiations. Both sides submitted proposed versions of an agree- ment which was to replace the 1972 agreement.' Peti- tioner sent the Employer a proposed agreement which duplicated the language of the 1972 agree- ment . This proposal was rejected by the Employer. The Employer submitted to the Union the follow- ing proposal: In accordance with your request, AFTRA agrees that during the term of the 1974-77 AFTRA-WOOK Collective-Bargaining Agree- ment AFTRA will not solicit or accept into membership the Announcer/Newsmen em- ployed at Station WFAN. Evelyn Freyman, in consultation with her attorney, rejected this proposal. The final version of the 1974 agreement was even- tually decided upon at a meeting between the Petitioner's attorney and the Employer's attorney, a meeting at which Myers was present. Evelyn Freyman told her attorney during the ne- gotiations that she was willing to agree not to orga- nize the WFAN employees. This she felt was what the 1974 agreement achieved. Myers stated that he felt the 1974 agreement, like the 1972 agreement, forbade the Petitioner to repre- sent WFAN employees. He testified that he made two substantial concessions at the bargaining table in order to get an agreement restricting the Petitioner from representing the WFAN employees.' On Saturday, August 16, 1975, the WFAN em- ployees, acting on their own initiative, drafted a let- 1 Pierre Eaton , the Employer 's vice president , actually conducted the 1972 bargaining negotiations . Myers was not present at the bargaining sessions but was consulted by Eaton as to the terms of the negotiations and was told immediately thereafter what had transpired. 2 There is a conflict in the testimony concerning the order in which the proposed versions were submitted . It is not necessary to resolve this conflict. The order in which respective proposals were submitted does not, in this case, shed any light on the parties ' contractual intentions. 3 According to Myers, these concessions concerned overtime pay for Sat- urday work and the wage issue . He claimed that an agreement restricting Petitioner from representing WFAN employees was important to him, as it had been in 1972, because he could not continue operating WFAN as a Spanish-language station if he were governed by union wages. 909 ter requesting Petitioner to represent them. Two of the WFAN employees, Luis Quinonez and Santiago Mena, delivered this letter to Petitioner's offices on Monday, August 18. Evelyn Freyman and Donald Gaynor, Petitioner's assistant executive secretary, discussed the implications of the 1974 agreement with Quinonez and Mena. Freyman and Gaynor de- cided that the 1974 agreement did not prevent Peti- tioner from representing the WFAN employees and thus agreed to represent them. Quinonez and Mena were given application blanks which were to be filled out by all those employees who signed the August 16 letter. Quinonez and Mena promptly got these cards filled out and returned them to Petitioner. The in- stant petition was subsequently filed by Petitioner on the WFAN employees' behalf. B. Contentions of the Parties The Employer contends the 1974 agreement pre- cludes Petitioner from representing the WFAN em- ployees and as such falls within the holding of Briggs Indiana Corporation .4 The Employer argues that it made substantial concessions during the 1974 negoti- ations to get such an agreement from Petitioner. Al- ternatively , the Employer argues that Petitioner's conduct constitutes "organizing" in violation of the 1974 agreement. The Union contends that the 1974 agreement did not preclude it from representing the WFAN em- ployees. It argues that it has not organized the WFAN employees and has therefore not violated the 1974 agreement. C. Discussion In Briggs Indiana, the Board held that where a union promises not to represent certain employees during the term of its collective-bargaining agree- ment , the Board will not during the term of that agreement entertain a petition by the union seeking to represent such employees. The Briggs Indiana doc- trine was restated in The Cessna Aircraft Company 5 and recently reaffirmed by the Board in Allis-Chal- mers Manufacturing Company.6 In Cessna Aircraft, the Board held that the Briggs Indiana rule "will be applied only where the contract itself contains an ex- press promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership; such a promise will not be implied from a mere unit exclusion, nor will the rule be applied on the basis of 4 Briggs Indiana Corporation, 63 NLRB 1270 (1945). s 123 NLRB 855 (1959). 6 170 NLRB 1 (1969). 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an alleged understanding of the parties during con- tract negotiations."' We need not decide whether an agreement by a union not to "organize" certain employees, standing alone , would constitute the requisite express promise not to represent those employees. For, in the instant case , there is other evidence of the parties ' intent in the record. Thus, it is undisputed that, in the course of negotiations for the 1974 agreement , the Petitioner rejected the Employer's proposed clause which was identical to the one in issue in Allis-Chalmers and thus fell squarely within the Briggs Indiana doctrine. In view of this evidence, we can only conclude that the provision eventually agreed upon does not repre- sent an intention by the parties to contract within the Briggs Indiana rule. Therefore, the 1974 agreement does not preclude the Petitioner from representing the employees at WFAN s Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. IV. UNIT QUESTION Petitioner seeks to represent a unit consisting of all persons who appear over the air at station WFAN excluding guards and supervisors as defined in the Act. A dispute exists as to whether Estuardo Rodri- quez y Valdemar, an individual employed at WFAN, is a supervisor within the meaning of the Act and should be excluded from the stipulated unit. Petitioner relies on the fact that Rodriquez, in ad- dition to his job as announcer/newsman , compiles the list of music that is played on the air. Petitioner also relies on sketchy testimony by Luis Quinonez, a WFAN employee, that Rodriquez gives orders around the station , that Rodriquez once effectively recommended that a person not be fired, and that he once effectively recommended that a person be hired. In addition , Petitioner relies on a notice posted at WFAN which states, "The only persons author- Supra at 857. ' Having found that the 1974 agreement does not bar the instant petition we find it unnecessary to pass on the Employer's contention that the Peti- tioner "organized" the WFAN employees in violation of that agreement. ized to make changes in the programming, schedul- ing of personnel or other aspects relating to the suc- cessful operation of the station are: Ivan Quinonez, Director and Estuardo Valdemar, Director of Pro- gramming." 9 The notice was signed by Ivan Quino- nez, the acknowleged director of WFAN. In partial corroboration of the statements contained in the no- tice, Luis Quinonez testified that Ivan Quinonez told him that Rodriquez was a supervisor. The Employer's general manager, E. Carlton Myers, Jr., testified that Rodriquez' preparation of the music list is no more than a clerical function and must be done in accordance with a strict methodolo- gy. He further testified that Rodriquez does not have the power to hire, fire, or discipline, nor does he have the power to exercise any of the other indicia of su- pervisory authority. Myers stated that Rodriquez, like the other announcer/newsmen, is paid by the hour, unlike the stipulated supervisors, who are sala- ried. When asked about the above notice, Myers tes- tified he had no knowledge of it. On the basis of the foregoing and the record as a whole, we conclude that there is insufficient evidence to show that Rodriquez is a supervisor within the meaning of the Act. A single incident does not estab- lish that an employee has the continuing authority to effectively recommend the hiring and firing of em- ployees. The posted notice is ambiguous and does not in and of itself establish Rodriquez' supervisory authority. Accordingly, we find that Rodriquez is not a supervisor within the meaning of the Act. We shall include him in the unit. Upon the entire record, we find that the following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act: All persons who appear over the air, including all announcers and newsmen employed by the Employer at its radio station WFAN-FM, locat- ed in Washington, D.C., but excluding guards, supervisors as defined in the Act, and all other employees. [Direction of Election and Excelsior footnote omit- ted from publication.] 9 There is some question as to whether this notice was properly identified before being introduced in evidence, but because of our judgment that Ro- driquez is not a supervisor , it is not necessary to decide this question.