WTOP, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1955

114 N.L.R.B. 1236 (N.L.R.B. 1955)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I will also recommend that Whelan, upon reasonable request, make available to
the Board and its agents all payroll and other records pertinent to an analysis of
the amounts due as back pay.
Since I found that Whelan by various acts interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in the Act and particularly be-
cause the discriminatory discharges heretofore found strike at the roots of em-
ployee rights safeguarded by the Act, and the totality of this conduct discloses
a propensity on Whelan's part to continue, although not necessarily by the same
means, to defeat self-organization, it will also be recommended that Whelan cease
and desist from infringing in any manner upon the employee rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS of LAw
1. Whelan is, and at all times relevant herein, was, engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Transport Workers of America, Ind., is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Grant
Williams, Freddie Lee Jordan, Adrienne Sandefur, Edward Kahn, and Madeline T.
Vose, thereby discouraging membership in the Union, Whelan has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Whelan has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent United did not violate the Act as alleged in the complaint nor
did Respondent Whelan discriminatorily terminate the employment of Georgia
Ann Formy Duval as alleged in the complaint.
[Recommendations omitted from publication.]
WTOP, Inc. and Radio & Television Broadcast Engineers & Tech-
nicians, Local No. 1215, International Brotherhood of Electri-
cal Workers, AFL, Petitioner. Case No. 5-RC-1754. November
80,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Henry L. Segal, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
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 rea-
sons :
114 NLRB No. 194.
WTOP, INC. 1237
The Petitioner seeks a unit of floor directors and assistant direc-
tors. It is the Employer's position that the petition is untimely be-
cause of a prior certification, and that the unit requested is inappropri-
ate in view of the fact that floor directors and assistant directors are
managerial trainees and that the assistant directors exercise super-
visory authority.
Concerning the timeliness of the petition, it appears that on August
26, 1954, following a consent election conducted on August 18, 1954,
the American Federation of Television and Radio Artists, AFL, was
certified as the exclusive bargaining representative of floormen (di-
rectors) and assistant directors, the identical unit sought by the in-
stant petition. The petition herein was filed on June 16, 1955, within
1 year from the date of the certification.
It is a well-established Board rule that, in the absence of unusual
or special circumstances, a Board certification will be treated as iden-
tifying the statutory bargaining representative with certainty and
finality for a period of 1 year, and that, in order to protect the bargain-
ing relationship from disturbance during that period, the Board will
dismiss petitions filed before the 12th month of the year.' However,
we find the facts before us now present an unusual circumstance war-
ranting departure from the general rule. Shortly, after the Board
issued its certification, on September 1, 1955, the employees concerned
therein, with the consent of the certified bargaining agent, sent to the
Employer a memorandum "withdrawing from all existing relations
with the American Federation of Television and Radio Artists, here-
tofore in effect for the purposes of collective bargaining. . . ." Since
the certification, the certified union has not bargained for the employ-
ees involved and, following the filing of the instant petition, has dis-
claimed interest in the unit covered. In view of the fact that the bar-
gaining representative heretofore certified as the exclusive representa-
tive of these employees has to all intents and purposes become defunct
as to representing these employees, it would not effectuate the policies
of the Act to apply the 1-year certification rule in this case. We, ac-
cordingly, find that the petition was timely filed.2
The Employer's remaining contention concerns the appropriateness
of a unit of floor directors and assistant directors. The Employer op-
erates television station WTOP-TV. Under its program director it
employs six full-time directors who take charge of producing each
television show which originates at WTOP-TV. The director as-
signed to a particular show has overall responsibility for that program.
His preshow responsibilities include the creation and placement of
sets; the rehearsal of performers for the show and the commercials;
I Ray Brooks et al. v. N. L. R. B., 348 U. S. 96; Centr-O-Cast & Engineering Company,.
100 NLRB 1507; cf. Ludlow Typograph Company, 108 NLRB 1463.
2 See Remington Rand, Inc., 112 NLRB 1381.
1238 DECISIONS OF NATIQNAL, ,LABOR RELATIONS BOARD
the arrangement of lights, cameras, and microphones; the selection
and editing of film; and the timing of the show. During the-presenta-
tion of the show the director gives instructions on the studio intercom-
munication circuit and in the control room, issuing cues for the per-
formers and directing audio men as to the intensity of sound, camera-
men as to where to direct the cameras, and switchers as to which image
to broadcast.
In 1951, the Employer initiated a training program to train men
for the position of director. Recruitment is largely of young men
from colleges and universities, drama schools, and little theater
groups-those who have had some experience in visual presentation.
The training period covers 21/2 years time. The starting weekly wage
is $35, and the remuneration increases at specified intervals. During
the last 9 months of the period the trainee receives $60 a week.
For the first 12 months of training, the trainee bears the title of
floor director. During this 12 months, trainees are taught to prepare
the physical setup of the show, working with artists and designers of
scenery and sets, and moving and arranging sets, scenery, and flats,
under the immediate direction of assistant directors. During the
actual broadcast, the floor directors wear headsets connected to the
studio intercommunication circuit and receive instructions from the
director relative to cueing the performers on the stage. The floor
directors are able to hear all instructions the director gives to the tech-
nicians and people on the floor as well as to the technicians and
assistants in the control, room. During the course of the first year,
floor directors are also taught to preview films. The Employer stated
that at the end of the 12-month period, the trainee had learned, through
observation, everything that goes into the construction of scenery and
what can be requested for the physical setup when they become direc-
tors. Being in constant communication with the director and hear-
ing his instructions to all personnel during a show, the trainee learns
the functions of a director and how he handles each problem. So
when the trainee has completed the first stage of the training program
he has acquired a thorough knowledge of the basic ground work of a
show and the relation of the control room to the activities on the floor.
Prior to the inception of this training program, porters arranged the
physical set of the stage and the directors rotated among themselves
the cueing of performers from the floor.
At the end of 12 months, if the trainee has proven his adaptability
in the performance of his duties, he is then given the title of assistant
director and "promoted" upstairs-into the control room which over-
looks the studio. As assistant director, the trainee becomes the direc-
tor's "right hand man." His functions and responsibilities are as'
WTOP,, INC. 1239
varied as the whims of the director to whom he is assigned. Most
directors will place the assistant directors in charge of set prepara-
tion. This responsibility includes development of the set and direc-
tion of the work of the floor directors (whose duties the assistant
directors have "graduated" from) and technicians. Prior to the show
going on the air, the director usually devotes his time to content prepa-
ration of the show and leaves preparation of the physical setup to his
assistant-coming into the studio only a few seconds before air time.
The assistant director may be made responsible for making sure that
the lighting engineer has the area lit properly, that the audio man has
placed a live microphone where the director wants it-and many other
details that the director does not have the time to check. Addition-
ally, there may be assignments from the director for rehearsing and
timing musical numbers, and editing film. During the show the
assistant director is in the control room, assisting the director and
learning control-room technique. After several months of assisting
the director, the assistant director is permitted to take over the con-
trols and actually direct shows, so that by the time the 18 months is
ended, he has directed every show the Employer produces. In the
latter stages of the training program, he directs shows in the absence
of the director. During the last 12 months of the training period an
assistant director will probably spend an average of 3 to 5 hours each
week in actual directing in contrast to a director's 10 to 15 hours
per week.
At the end of the 18-month period,as an assistant director, the trainee
either is hired by the Employer as a director if such a position is avail-
able, or the Employer helps him find a like position elsewhere. After
completion of the training period, the trainee does not continue with
the Employer with less than a director's position.
Since the inception of the training program, 35 persons have par-
ticipated in the program : 14 are at present employed at WTOP-TV-
5 are directors and 1 is the program director; the other 8 are in the
present group of trainees (5 assistant directors and 3 floor directors).
Of the remaining 21 participants in this program, 8 have left the
Employer at some stage of the program and gone to other related jobs:
assistant program director, program director, director of an adver-
tising agency, radio announcer, independent film producer, and posi-
tions with an advertising agency, with the Radio and Television Divi-
sion of the Department of Agriculture, and with the film production
department of a station. Eight other participants left the program
to go into the Army or jobs unrelated to the television industry. Five
were discharged at some stage in the program, largely because of in-
compatability with the medium of television.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, the unit requested is confined to the floor di-
rectors and assistant directors, the participants in the training pro-
gram. Although the Petitioner does not seek directors as part of the
unit, it refused to stipulate as to the supervisory authority of the di-
rectors. As the record reveals that a director has the overall responsi-
bility for a particular program to which he is assigned, involving
supervision over the engineering unit, the art department, the film
department, the music team, the floor director, and the assistant di-
rectors, we find the directors are supervisors within the meaning of the
Act.3
As the record further discloses that the assistant directors are
granted certain supervisory authority, e. g., to responsibly direct
floor directors and technicians and later in this stage of the training
program to act in the place of the director, we find that they are
supervisors within the meaning of the Act 4
As the Petitioner seeks a unit comprised substantially of these as-
sistant directors who are supervisors we find that the unit sought is
inappropriate. Accordingly, we shall dismiss the petition herein.
[The Board dismissed the petition.]
MEMBER PETERSON , dissenting :
I do not agree with the dismissal of the petition in this case. My
colleagues base their action upon the ground that the unit of assistant
directors and floor directors sought by the Petitioner is inappropriate
because it is comprised substantially of assistant directors who are
found to be supervisors. The specific reasons given by the majority
for their finding are that the assistant director is granted authority
(1) to responsibly direct floor directors and technicians, and (2) in
the later stages of the training program, to act in place of the di-
rector. I believe that the record amply supports my contrary view.
- It should be noted at the outset that according to Section 2 (11)
the authority responsibly to direct must not be "of a merely routine or
clerical nature," but must require "the use of independent judgment."
In my opinion, the testimony of the Employer's program director-
who was the principal witness at the hearing with respect to the duties
of the assistant directors-clearly establishes that the assistant di-
rectors do not responsibly direct employees within the meaning of that
section of the Act. Thus, it is the director who "will supervise in the
broad area of setting up the program from the point of view of its
8 See American Broadcasting Company, Inc ., 100 NLRB 620; American Broadcasting
Company ( KGO-TV), 94 NLRB 100 ; American Broadcasting Company, Inc., 93 NLRB
1410. -
4 The fact that assistant directors were included together with doormen in the unit for
which American Federation of Television and Radio Artists, AFL , was certified on August
26, 1954 , is not controlling here, as such inclusion was the result of a consent-election
agreement and not by reason of the Board 's determination of their status as employees.
WTOP, INC. 1241
physical setup" and this refers "to such things as the actual set," and
it is the director who is "totally responsible" for "staging." With re-
gard to set preparation, the director either tells the floor director what
to do or has his instructions relayed to the floor director and tech-
nicians through the assistant director. In the latter event, the assistant
director is merely transmitting intelligence imparted to him by the
director.
It should be kept in mind that the assistant director is a trainee.
As such, he is given specific instructions by the director when he is
assigned to a particular show so that he will know what to do on future
shows. Thus, when he has reached the stage in his development where
he is told that he is "in charge" of set preparation and responsible for
such details as making sure that the lighting engineer has the area lit
properly, that the audio man has placed a live microphone where the
director wants it, etc., his actions are based not upon his independent
judgment, but upon the specific instructions he has theretofore re-
ceived from the director. This is likewise the situation when he is told
to rehearse and time musical numbers which only involves determin-
ing how long a particular number runs, looking for places where
closeups of musicians might produce a good visual effect, and report-
ing the information to the director. As the program director stated,
the director "is not going to tell him this, if he is worth his weight
as a director, until the assistant director has had some exposure on
that show. The way our scheduling works is that an assistant director
usually works a series of shows for a long period of time [and] by a
period of constant exposure, he knows the place for everything and
where everything should be. It is a hand-in-glove thing."
Occasionally, the assistant director may be asked by the director to
conceive a set. However, the only type of direction of personnel
which is involved thereby occurs when the assistant director requests
the floor director to move the property on the studio floor. Equally
as infrequent are the few occasions on which the assistant director may
be assigned to do film previewing. This work consists of looking for
scratchy surfaces on` the film, determining the length of time it runs,
and listening for the tone quality of the sound. Again, no control
over employees is involved.
I think it is apparent from the foregoing that at best the assistant
director's duties make him a human conduit for the transmittal of
the director's instructions ' to floor directors and technicians. Al-
though in this sense he may be said to be giving orders to other em-
ployees, actually he merely passes along instructions given to him by
the director 5 and sees that the work is performed in a proper manner.6
5 Barnhardt Manufacturing Company, 103 NLRB 261.
e Cherokee Brick and Tile Company, 100 NLRB 612.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed, there does not appear to be room for the exercise of any inde-
pendent judgment by the assistant director, when one considers that,
according to the program director's testimony, the director "is the
man who has the overall responsibility for the program to which he
is assigned," that he exercises control over each detail, that the director
"is the nearest thing to a dictatorship outside of the captain of a ship,"
that what the assistant director does " is as varied during [the training
period] as the whims of the director he works for," and, that it is the
director who is held responsible for any mistakes made by the assistant
director.
With respect to the second point relied on by my colleagues, it is
important to note how circumscribed is the extent to which the assist-
ant director acts in place of the director in the later stages of his train-
ing program. Thus, the assistant director does not take over a show
until, in the opinion of the director, he has completely familiarized
himself with the routine which has been established by the director.
By this time, the director has already thoroughly organized the show,
"spelling out for [the performers] precisely what they are to do, when
they are to do it, and, in fact, preparing a minute-by-minute format
of the show which outlines exactly what they are to do during the
course of the program." All the assistant director has to do is follow
the established pattern.
The only exercise of discretion by an assistant director when he
"directs" a show involves artistic judgment and not personnel super-
vision. During the performance of the show on the studio floor, the
assistant director communicates from the control room with the cam-
eramen so as to maneuver the cameras and thereby obtain the maximum
artistic effect from the performers. There is no direction of the
cameramen apart from securing this effect through the manipulation
of the cameras. Therefore, such control and direction as is exercised
by the assistant director is concerned primarily with equipment rather
than personnel and any direction or control of personnel is incidental
thereto. It is well established that this is not a supervisory function?
In view of the foregoing, it is my opinion that the assistant directors
are not supervisors.8 Accordingly, I would not dismiss the petition,
but would proceed to a determination of representatives.
MEMBER MuRDocs took no part in the consideration of the above De-
cision and Order.
9 See for example Capital Transit Company , 98 NLRB 141 , 145, and cases cited therein ;
N. L. R. B . v. Capital Transit Company, 221 F . 2d 804 ( C. A., D. C.).
e In WCA1, Inc., 93 NLRB 1003, 1006, and K 1TR Radio Corporation , 85 NLRB 99, 101,
the Board directed an election in a unit including assistant directors and In a unit in-
cluding employees doing the work of the floor directors herein.