WGBH Educational Foundation

National Labor Relations Board - Board Decisions

Mar 6, 1979

240 N.L.R.B. 1210 (N.L.R.B. 1979)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W(GBH Educational Foundation and National Associ-
ation of Broadcast Employees & lTechnicians. AFI,-
CIO. Petitioner. (ase I UC1 246
March 6, 1979
DECISION AND ORDER
BY (CIIAIRMAN F\NNIN( \I) MI MB RS Pt Nll I t
AN) Rt I S l)l II
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act. as amended. in
Case I RC 15559. a hearing was held before a hear-
ing officer of the National I ahbor Relations Board.
Thereafter, on May 3, 1978., the Regional [)irector
for Region I issued a D)ecision and [)irection of ILlc-
tion in which he concluded, ilntr alia., that ind ivid-
uals employed as engineers in charge (herein l(Cs)
were not supervisors within the meaning of Section
2(11 ) of the Act andl therefore included them in the
unit found appropriate.'
Thereafter, the Eimployer filed a timely request for
review of the Regional [)irector's findings concern-
ing, inter alia, the status of the ElCs. B order dated
May 24, 1978. the Board ruled that "As [the supervi-
sory status of El('s] can best be resolved through the
challenge procedure. the [)ecision is amended to per-
mit them to vote subject to challenge." Thereafter. an
election was held on May 24, 1978. The talkl of bal-
lots served on the parties indicated that a majorit of
the employees in the unit described hy the Regional
Director had voted for representation b PIletitioner,
and that the challenged ballots were not sufficient in
number to affect the election's results. Ihecreafter. on
June 2, 1978. the Regional Director for Region I is-
sued a Certification of Representative certifying Peti-
tioner as the exclusive representative in the bargain-
ing unit defined by the Decision and I)irection of
Election, except that the EI(s were not specifically
included or excluded from the certified unit.
On June 8, 1978. Petitioner filed the instant peti-
tion with the Regional Director, in which it seeks
clarification of its unit bhy the inclusion of the EICs.
Thereafter, the parties stipulated that the status of
the EICs had been fully litigated in ('ase I R('
15559. and that the record in that case was sufficient
to allow a determination as to the status of EICs.
Ihe Iappropriaite tii v11I I:
All regular ull-tinle and regular part-llnee rnph t\ee, iof hlie I liipl.cr
emplkoed at the ltiplole r's A\lston. \.a1si hulsell. lica.ltil. LI.tsilfled
as engineers and studio technician.ls ilmglged in Ilhe [ri l.ltloll of.
W(iBII ]X. \(i(ill I. W(iBX IV. Itldtli tie e iTg cers i
charge. the stage managCts and lt lightring dl r tclos., hill C\tludl g ial
eothiler cllpIOlecs . prOf[esslllo C,111pONCt e gtll s d lia stperl ' or ,
defined in the Act
240 NLRB No. 167
I hereafter, on Jul 7 1978, the Acting Regional
I)irector. pursuant to Section 102.63(b) and 102.67(h)
of the Board's Rules and Regulations, transferred the
instant proceedings, including the entire record in
(Case I R 15559, to the Board for resolution. Both
lPetitioner and the tLmployer subsequently filed briefs
Ii support of their positions.
Pursuant to the provisions of Section 3(b) of the
National l.abor Relations Act, as amended, the Na-
tional I.abor Relations Board has delegated its au-
thorit\ in this proceeding to a three-member panel.
I he Board has reviewed the Ilearing Officer's rul-
ings made at the hearing in (ase I RC 15559 and
finds that thes are free from prejudicial error. They
are herebN affirmed.
U!pon the entire record in this case the Board
finds:
1. Ihe lmlplo\er is engaged in commerce within
the meaniling of the Act.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. he Employer is a nonprofit Massachusetts cor-
poration engaged in operating two public education-
al television stations (WGBHI TV and WGBX 'V)
and a radio station (G(iGH M1 in Allston. Massa-
chusetts. he Emplo er utilizes programs from out-
side sources such as the Public Broadcast System
(PBS) and the Eastern E ducational Network (EN),
as well as its own productions. either taped or live.
The studio technicians and engineers in Case I
R( 15559 sought work in the Emploer's operations
di;ision, which is under the overall direction of Joe
Anderson, manager for operations. Within that divi-
sion, there are six L l( positions (one :IC' position
was vacant at the time of the hearing). Dave C(rane.
the studio and post production F.l( (another studio
and post production EI'C position was vacant), and
Karl Lorencic. the remote production FI('. report to
lans Scharl, chief operations supervisor. Scharl. in
turn, reports to Phillip CollIer, director of television
operations. Bill Busiek. the radio El'. reports to
both Scharl and \William Beck, the manager of the
radio station. Waltcr Cummings, the transmitter
lC1(, and John l aBountv. the maintenance EIC(', re-
port to Tom Keller, director of engineering. Keller.
in turn, reports to Anderson. Other than ECs, there
are 23 engineers in studio and post production (5 in
radio, 3 at the transmitter, and 8 in maintenance):
engineers for remote are assigned as needed, largely
from the studio and post production group.
The work schedules for all engineers except those
at the transmitter are developed by admitted super-
visors, lMaggie Bordett and Jan Durgin. in a separate
scheduling office. Because of the separate location of
the transmitter, a tentative work schedule for engi-
WGBH EDUCATIONAL FOUNDATION 1211
neers assigned there is submitted to the scheduling
office by EIC Cummings. This schedule is checked
against the scheduled signoff times for the stations
and approved by both Bordett and Scharl. Schedul-
ing also prepares detailed assignments for engineers
in studio and post production. indicating which
studio or program they are to cover. EICs schedule
their own hours to be present during the heaviest an-
ticipated workload, work the same 4-day week as
other engineers., and receive overtime pay for work
performed beyond 40 hours per week. EICs receive
15 percent above scale, as do other engineers when
acting as EICs. Certain other engineers normally re-
ceive either a flat amount or a percentage increment
over scale, based on merit. EICs and other engineers
have the same vacations holidays. sick leave, and
insurance benefits. Unlike admitted supervisors, they
fill out timesheets. are hourly paid, and do not attend
management meetings.
The record shows that on various occasions El('s
have attempted to recommend certain personnel ac-
tions e.g.. merit raises or promotions and that
those recommendations have not been acted upon.
On other occasions, EICs have been asked for their
opinions concerning the qualifications of employees
or job applicants. On some of those occasions. it is
unclear whether thered withW'hen EICs are not pres-
ent, other engineers must decide which tasks can be
set aside for more urgent tasks. who will perform EIC
task, and whether to work unscheduled overtime.
Whether an EC is present, overtime is entirely vol-
untary. Most of the assertion. the record does not
establish that EICs effectively recommend the hiring.
promotion, demotion, or transfer of unitith emplo\y-
ees.enced engineers until they become familiar with
the
The Employer does not contend that EICs sus-
pend, lay off. recall, discharge, discipline. or adjust
grievances. However. the Emplover does contend
that EIC's responsibly assign and direct engineers.
EICs are responsible for insuring that the
Employer's operations function smoothly within
their various areas of expertise. In so doing. theN are
sometimes called upon to decide which previously
assigned tasks may be put aside so that other more
pressing matters may be attended to. In so doing.
they may have to etermine which engineers are
available. their relative expertise. and the impact on
other work assigned to each engineer. EICs regularly
perform unit work alongside other engineers because
they have been assigned to that work by scheduling.
I he tti ins p,,erat 7 d a,,\ per beck I stinsl rcnlot roduth,[ tons n..
ones ,scsignated to .;1 s .[C when in iI( is not il i ork I r th. rason,.
Ihere ire Infllicalnt period. f linme hen no I l( is prc nclit i.Itd clgtlllcrC
functin .iltholul Ioversighl
because insufficient personnel have been assigned to
the work that must be done, or because the assigned
engineer is absent.
W;hen EICs are not present, other engineers must
decide which tasks can be set aside for more urgent
tasks, who will perform each task, and whether to
work unscheduled overtime. Whether or not an EIC
is present, overtime is entirely voluntary. Most of the
engineers employed by the Emplo\er have a great
deal of experience, and inexperienced engineers are
scheduled to work with more experienced engineers
until they become familiar with the Employer's pro-
cedures.
The Employer asserts that the EICs' decisions con-
cernling the priority of tasks to be performed and the
capabilities of the individual engineers "necessarily
involve the exercise of independent judgment" and
therefore indicate that EICs function as supervisors.
citing. inter alia. Richardson Brolhrv (Cormparv.' We
note that there is nothing in that case to indicate that
emnplo\ees in the "finishing department" possessed
the high degree of skill and experience typical of the
engineers here. Furthermore, there was evidence in
that case that employees were led to believe that they
would be disciplined for failure to follow the orders
of the disputed individual, unlike the circumstances
of the instant case. Finallyv. there was no evidence in
that case that persons other than the disputed indi-
vidual and admitted supervisors made decisions con-
cerning the assignment of employees: whereas, the
engineers involved here ma' be called upon to make
such judgments several days each week when EICs
are not present. It is clear that such judgments,
whether made by El(s or made by other engineers.
are based on the technical expertise of the engineers
and their knowledge of the Employer's operational
needs and do not involve "independent judgment" of
the type referred to in Section 2(11) of the Act. We
therefore conclude that El('s do not assign or re-
sponsibly direct other engineers, and, hence, are not
supervisors within the meaning of the Act and are
properly included in the unit found appropriate.
ORDER
It is hereby ordered that the certified collective-
bargaining unit of all regular full-time employees and
regular part-time employees employed at the Allston,
Massachusetts. location. classified as engineers and
studio technicians engaged in the operation of
WGBII TV. WGGH-FM, WGBX TV, including
the stage managers and the lighting directors, but ex-
cluding all other employees. professional employees.
guards. and supervisors as defined in the Act, and
228 Nl RH 314 1977?
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by National Association of Broadcast hereby is, clarified to include the classification of en-
Employees and Technicians, AFL-CIO, be, and it gineers in charge.