REGION 2

WBAI PACIFICA FOUNDATION

------------------------EMPLOYER

and------------------------------------------------------------------------------2-UC-496

----------------------------------------------------------------------------------2-UC-517

UNITED ELECTRICAL, RADIO &

MACHINE WORKERS OF AMERICA (UE)

AND ITS LOCAL 404

------------------------UNION

DECISION AND ORDER CLARIFYING UNIT

Upon a petition duly filed under Section 9(b) of the National Labor Relations Act, as amended, a hearing was held on several days before Nancy Reibstein, a Hearing Officer of the National Labor Relations Board, hereinafter referred to as the Board.

Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the Regional Director, Region 2.

Upon the entire record⁽¹⁾ in this proceeding, it is found that:

1. The Hearing Officer's rulings are free from prejudicial error and hereby are affirmed.

2. Pacifica Foundation WBAI, herein the Employer, a not for profit corporation, incorporated in the State of California, with offices located at 505 8th Avenue, New York, N.Y. is engaged in the operation and broadcast of a noncommercial FM radio station in New York, New Jersey and Connecticut. Annually, the Employer, in conducting its business operations, derives gross revenues in excess of $2 million and uses Associated Press wire services to produce its newscast. I find that the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein.

3. United Electrical, Radio & Machine Workers of America and its Local 404, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act.⁽²⁾

4. Clarification of the bargaining unit is appropriate for the reasons set forth below.

5. The Employer originally filed its clarification petition, Case No. 2-UC-496, on November 1, 1995 seeking clarification of the unit represented by the Union. Thereafter, on May 3,1996, the Employer filed another clarification petition. in Case No. 2-UC-517. On June 14, 1996, the Board issued an Order Consolidating Cases and Notice of Hearing. Subsequently, a hearing took place and testimony was received in connection with these petitions.

Historically. the Union has represented the employees employed in the following classifications: all paid and unpaid, full-time or part-time programming, technical, bookkeeping and clerical workers. The most recent collective-bargaining agreement had been extended until April 30, 1996.

In Case No. 2-UC-496, the Employer's position is that the classification of Business Director should be excluded from the bargaining unit because it is a confidential and managerial position.⁽³⁾ With regard to Case No. 2-UC-517₁ the Employer's position is that the unpaid staff classification should be excluded from the unit since that classification fails to meet the Board's and statutory definition of "employee".³ The Union contends that the Business Director position is not confidential or managerial and should therefore remain within the bargaining unit. It further maintains that the unpaid staff are "employees" within the meaning of the Act, and thus, they are properly included in the bargaining unit.

The Employer seeks to exclude the Business Director because she is a managerial and/or confidential employee. Sybil Wong has been employed in this position since 1994. She is the only employee employed in this

classification. The record in my opinion, supports a finding that the Business Director is not a confidential or managerial employee and therefore should remain in the existing unit.

At the hearing, Wong testified that as the Business Director she helps prepare the payroll records by entering the payroll information into the computer. The operations department provides the payroll data. Wong also maintains a ledger on payments made to the various vendors. Although she does not have the authority to sign checks, she prepares the purchase request order forms which are approved by the Employer's General Manager. The Business Director also maintains a record of all income received by the radio station. In this regard, she enters the check into the cash income revenue ledger and deposits the check.

Wong also prepares a monthly financial report for the Employer. This report includes a summary of the checks written in the disbursement journal, moneys owed to vendors as recorded in the purchase journal and moneys owed for more than three months to vendors, as recorded in the 30 day aging purchase journal. She also balances the bank books on a monthly basis.

The record further shows that Wong processes the credit cards for individuals seeking membership. She also distributes insurance forms, makes sure they are fill out correctly and forwards the forms to the insurance company.

The Business Director does not prepare a budget or cash flow analysis.⁽⁴⁾ The General Manager on occasion, may request that the Business Director submit some financial figures so that the General Manager can prepare the budget. Moreover, Wong is not a member of the Employer's National Board. Nor is she permitted to attend the National Board finance committee meetings. Wong reports to the Employer General Manager and to the Comptroller.

With regard to the confidential issue, the Employer offered no testimony to establish that the Business Director assists and acts in a confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations.

The Board has long held that the party asserting confidential status has the burden of providing evidence to support its assertion. Inter-Mountain Electric Assn. 277 NLRB 1 (1985). As the Employer offered no evidence about the duties of the Business Director regarding the formulation, determination and effectuation of labor relations policy, I find that the Employer has failed to meet its burden of providing evidence to support its assertion that the Business Director is a confidential employee. While Wong may have access to payroll information, there is no evidence that she assists in a confidential capacity with respect to labor relations. S.S. Joachim & Anne Residence. 314 NLRB

1191, 1195 (1994) citing B.F. Goodrich Co. 115 NLRB 722 (1956); PMI Communications, 308 NLRB 918 (1992), NLRB v. Hendricks County Electric Corp., 454 U.S. 170 (1981). Rather, Wong appears to be responsible for compiling and retrieving payroll information and for performing clerical personnel matters. Accordingly, I find that the Business Director is not a confidential employee.

Similarly, I find the Employer's claim that the Business Director is a managerial position witoout merit. The above-evidence fails to show that Wong was in a position to formulate and effectuate management policies by expressing and making operative the decisions of the Employer . Her duties described above establish that the primary function of this position deals with record keeping. Ms. Wong assists in preparing payroll records, in preparing financial reports and handles other records. There is no evidence that Ms. Wong possess or exercises the authority to formulate, determine or effectuate employer policies with respect to employee relations matters. NLRB v. Yeshiva University 444 U.S. 672 (1980). Accordingly, I find that the Business Director position is not a managerial position and should remain in the unit.

UNPAID STAFF

The Employer contends that the unpaid staff are not employees within the meaning of Section 2(3) of the Act since they perform services without receiving compensation. The Employer, contrary to the Union, arges that the statutory definition of an employee requires one to work for wages or a salary.

The record evidence shows that the Employer hires unpaid and paid staff to produce the programs it broadcasts on its radio station. The Employer operates a 24 hour a day radio station, 365 days a year. The record further shows that the unpaid staff produce a majority of the Employer's programs. Each program is approximately 3 hours long.

To produce a program the unpaid staff engages in a variety of tasks. First, the unpaid staff discusses the content and time of a program with the Employer Program Director. The Program Director has the authority to preempt a show and to shape the format of the program. The unpaid staff must also prepare for the program. This may involve doing research, reading books and other materials and interviewing people. In addition, the unpaid staff operates equipment, cuts tapes, maintains records including the transmittal logs.

The unpaid staff also interacts with the paid staff. The unpaid staff may assist a paid staff in the production of a program. The unpaid staff may also substitute for a paid staff and receive wages for doing this work. Both the unpaid and paid staff must also participate in the Employer's fundraising campaigns. To do this, the paid and unpaid staff discuss with the Program Director various ideas on how to generate more revenue from their programs. The paid and unpaid staff also attend the same meetings. They are required to attend the General Manager meetings, Program Director general meetings, department meetings and meetings to organize special events.

In addition, the unpaid and paid staff receive the same supervision. As mentioned above, the Program Director approves the content and broadcast time for all unpaid and paid staff programs. The unpaid staff and the paid staff are also subject to similar disciplinary procedures. The Employer can issue written warnings, suspend and discharge the unpaid and paid staff.

Furthermore, some of the provisions in the Union's collective-bargaining agreement applies to both the unpaid and paid staff. Section IX of the contract permits the unpaid and paid staff to file and process grievances to arbitration. The unpaid staff also receives contract wages when it substitutes for a paid staff. The contract also requires that the paid staff and the unpaid staff to attend General Manager meetings, department meetings and meetings to organize events. Under the contract, the unpaid staff receive travel reimbursement, and child care allowance. The unpaid staff does not receive wages for producing their programs.

The relevant statutory language concerning Section 2(3) is:

"The term 'employee' shall include any employee and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise...but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or any individual having the status of an independent contractor, or any individual employed as a supervisor or any individual employed by an employer subject to the Railway labor Act..."

29 U.S.C. 152(3)

In determining whether or not the above language includes a particular worker, the Board has consistently applied an expansive interpretation of the language and has defined employee in the "broad generic sense" to "include members of the working class" in general. Sunland Construction 309 NLRB 1224, 1227 (1992). See also, Town & Countrv Electric 309 NLRB 1250(1992)

Most recently, the Supreme Court in Town & Countrv Electric. 116 S.Ct. 450 (1995), 150 LRRM 2897 (1995) upheld the Board's broad reading of Section 2(3). In that case, the Court focused upon the definition of Section 2(3) of the Act and whether paid union organizers were employees within the meaning of the Act. Consistent with the Board's expansive view of the definition, the Supreme Court applied a broad interpretation and held that the paid organizers were statutory employees.

In reaching this decision, the Court cited various statements from Congressional reports and other sources concerning the definition of "employee." One such definition was that an "employee" simply "means someone who works for another for hire." Id. at 150 LRRM 2897,2899. Another definition was that an employee was a "worker." Finally, the Court concluded that a broad literal reading of the statute was consistent with other Supreme Court cases where the Court wrote that the "breath of Section 2(3)'s definition is striking: the Act squarely applies to 'any employee'". Id. citing Sure-Tan. Inc. V. NLRB, 467 U.S. 883, 891.⁽⁵⁾ Based on its broad interpre~tion of the statute, the

Supreme Court found that the Board's construction of the word "employee" was Iawful and that paid union organizers were employees within the meaning of the Act.

Upon examination of the above-cited cases, I have concluded that the definition of "employee" includes the unpaid staff employed by the Employer. Therefore, the unpaid staff should remain in the bargaining unit. First, the Board's and Court's interpretation of the word "employee" is broad and thus, in my opinion, unpaid staff falls within the literal meaning of that word. Common sense suggests that as the unpaid staff goes about their tasks and is subject to the control of the Employer, they are employees within the meaning of the Act. Town & Countrv Electric. supra.

The record evidence clearly shows that the unpaid staff are individuals who work for the Employer. They provide an essential service for the Employer by producing the majority of programs aired on the radio station. In fact, the Employer could not exist without the services and work performed by the unpaid staff.

In addition, the unpaid staff goes about a variety of ordinary tasks in order to produce a program. Town & Countrv Electric. supra. at 2901. They interview people, operate equipment, cut tapes, and discuss programming ideas with the Program Director. The unpaid staff are also subject to the control of the Employer. Id. Their programs are approved by the Program Director with regard to content and broadcast time. The Program Director can preempt an unpaid

staff show at any time. The unpaid staff is also subject to disciplinary procedures The Employer can issue written warnings, suspend and discharge the unpaid employees.

Moreover, the language of Section 2(3) of the Act does not expressly exclude these individuals. Nor is there case law that suggests that the unpaid staff are not "employees." Thus, based on the work the unpaid staff provides the Employer and the employment control the Employer has over the work and individuals, I find that the unpaid staff are employees within the meaning of the Act.

I further find no merit to the Employer's assertion that the unpaid staff are not employees because they do not receive compensation for their services. Monetary compensation does not appear to be an indicium of an "employee." While it is true that most employees receive some type of monetary compensation for their work, it does not mean that the definition of "employee" applies only to individuals who receive wages. On the contrary, as mentioned above, the Board and Court apply an expansive view of the definition. Therefore, the Board would engage in a narrow and restrictive view of the term if it were to require the receipt of wages as a criteria to being an "employee." In fact, the Board and Court have already concluded that "applicants" are statutory employees. Phelps Dodge Corn. v. NLRB 313 U.S. at 185-186. Since applicants do not receive wages from an employer, it is reasonable to conclude that

individuals who provide work for an employer, but who do not receive wages, are employees within the meaning of the Act.

Moreover, the unpaid staff do receive some form of compensation for their work. They receive travel reimbursement and child care allowance. In addition, they receive finances to produce their programs and are paid for the time they act as substitutes for paid producers. Therefore, the unpaid staff do receive some form of monetary compensation. However, regardless of whether or not they receive monetary compensation, the law supports a finding that the unpaid staff are statutory employees.

The record evidence further shows that the unpaid staff and the paid staff share a community of interest. First, the evidence shows that the paid and unpaid staff perform the same work, they produce shows for the radio station. As mentioned above, the unpaid staff engages in a variety of tasks in order to produce these programs. The paid staff also perform these tasks. In addition, the paid staff and the unpaid staff receive the same supervision from the Employer. All programs, whether produced by an unpaid staff or paid staff, are approved by the Program Director. The Program Director meets with the unpaid staff and the paid staff to discuss programming ideas, grants and program issues. The Program Director also issues written warnings to both paid and unpaid staff and can suspend or discharge both groups of employees.

Furthermore, the evidence shows that there is some interchangeability and contact among the paid and unpaid staff. On occasion, the unpaid staff have

substituted for the paid staff during the broadcast of a program. The record evidence also shows that the paid and unpaid staff assist one another in the produclion of their shows. Paid and unpaid staff must also maintain records such as transmittal logs and readings of the transmitter.

Both group of individuals are also required to participate in the Employer's fundraising campaigns. In fact the Program Director, in preparation for the fundraising campaign, discusses with the paid and unpaid staff various ideas on how to generate more money from the shows. Furthermore, some of the provisions of the Union's contract apply to both unpaid and paid employees. Section IX of the contact allows the unpaid staff as well as the paid staff to file and to process grievances to arbitration. In addition, when the unpaid staff substitute for the paid staff, wages set forth in the Union's collective bargaining agreement are given to the unpaid staff. The contract also requires unpaid and paid staff to attend General Manager meetings, Program Director general meetings, department meetings and meetings to organize an event. Paid and unpaid staff also ratify the contracts.

Based on evidence of common supervision, integration of work and the contact among the employees, I have concluded that the unpaid staff and paid staff share a strong community of interest. Brand Precision Services 313 NLRB 657 (1994). Accordingly, the unpaid staff should remain in the existing unit.

During the hearing the Employer referred to the unpaid staff as "volunteers." I find this classification misplaced. First, the Employer does retain

the services of volunteers on an interim basis. These individuals, however, are different from the unpaid staff. The volunteers help the Employer two or three times a year during the fund raising campaign by answering telephones. The unpaid staff produce programs for the Employer on a regular basis.⁽⁶⁾ In fact, as mentioned above, the Employer could not exist but for the production of the unpaid staff programs. The Employer employs approximately 228 producers who are currently in the unit. Approximately 200 of these producers are unpaid staff. Therefore, it is quite obvious that the entire station relies on the unpaid staff productions. The sporadic assistance from volunteers is quite different from the significant contribution the unpaid staff provides the Employer.

Based on the totality of the evidence, the Employer has failed to show that the above existing classifications have undergone recent, substantial changes in the duties and responsibilities of the employees in it so as to create real doubt as to whether they should continue to be included in the unit. Therefore, the classifications should remain in the unit. Union Electric Company, 217 NLRB 666,667 (1975).

Accordingly,

IT HEREBY IS ORDERED that the classifications of Business Director and unpaid staff be included in the existing unit in the collective bargaining

agreement between the Employer and the Union.⁽⁷⁾

Dated at New York, New York, February 12,1997

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