Telemundo de Puerto Rico, Inc. v. N.L.R.B.

• Decision Date: 11 April 1997
• Docket Number: No. 96-1945,96-1945
• Citation: 113 F.3d 270
• Parties: 155 L.R.R.M. (BNA) 2338, 65 USLW 2816, 133 Lab.Cas. P 11,821 TELEMUNDO de PUERTO RICO, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 270

113 F.3d 270

155 L.R.R.M. (BNA) 2338, 65 USLW 2816,

133 Lab.Cas. P 11,821

TELEMUNDO de PUERTO RICO, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 96-1945.

United States Court of Appeals, First Circuit.

Heard April 11, 1997.

Decided May 15, 1997.

Jay A. Garca-Gregory with whom Tristan Reyes-Gilestra and Fiddler, Gonzalez & Rodriguez, San Juan, PR, were on brief, for petitioner.

Ginoris Vizcarra de Lpez-Lay, with whom Lpez-Lay Vizcarra & Porro, Santurce, PR, was on brief, for intervenor.

John D. Burgoyne, Assistant General Counsel, Washington, DC, with whom Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, South Euclid, OH, and Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, National Labor Relations Board, were on brief, for respondent.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

We live in the age of television, and the judicial system is not immune. This case, however, varies the usual setting in which courts and cameras coalesce, for our interest lies behind the television screen. In pursuing that interest, we entertain today a question familiar to a generation of television viewers: "Who's the Boss?"

The script for this episode features Telemundo of Puerto Rico, Inc. (the Company), which petitions to set aside a final order of the National Labor Relations Board (the Board) determining that it unlawfully refused to recognize and bargain with the Unin de Periodistas, Artes Graficas Y Ramas Anexas (the Union). The Board cross-petitions for enforcement of its order pursuant to the National Labor Relations Act (the Act), and specifically, 29 U.S.C. § 160(e), (f) (1994). We enforce the order.

I. SETTING THE LIGHTS

Telemundo operates a television station in Hato Rey, Puerto Rico. In December of 1994, the Union (which appears in this venue as an intervenor) sought to be certified as the exclusive collective bargaining representative of a tiny group of Company employees known as technical directors (TDs). Telemundo opposed the effort, casting the three TDs as supervisors (and, thus, part of management). Agents of the Board conducted a representation proceeding at which evidence was taken. The record was closed in April 1995. On January 30, 1996, the regional director issued a decision finding the TDs to be run-of-the-mill employees, not supervisors, and mandating an election (to take place on February 28, 1996) for a bargaining unit composed solely of the three TDs.

On February 12, the Company sought reconsideration; it filed a request for review and annexed to the papers a letter dated May 15, 1995, in which it had informed the TDs' immediate superior, Rafael Corps, that his position--technical supervisor (TS)--was to be eliminated effective June 16, 1995. On February 28, the three TDs voted unanimously to join the Union. The Board denied the Company's request for review two days later and thereafter certified the Union as the bargaining unit's representative.

It is common ground that employers cannot obtain direct review of unfavorable certification decisions. See American Fed'n of Labor v. NLRB, 308 U.S. 401, 409-11, 60 S.Ct. 300, 304-05, 84 L.Ed. 347 (1940). Consequently, if an employer is dissatisfied with the outcome of a representation proceeding, the option of choice is to refuse to bargain and to raise any infirmity in the certification decision as a defense to the unfair labor practice charge that almost inevitably will ensue. See, e.g., Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964); S.D. Warren Co. v. NLRB, 342 F.2d 814, 815 (1st Cir.1965). So here: the Company stonewalled, the Union pressed an unfair labor practice charge, and the Company defended on the ground that the bargaining unit was inappropriate because the TDs were supervisors. As part of this defense, the Company asked the Board to pay special heed to (1) the letter eliminating the technical supervisor's position, and (2) an affidavit executed well after the election by Elizabeth Rivera, a member of management, purporting to describe changes in the TDs' duties.

The General Counsel moved for summary judgment. The Board obliged, rejecting the proffered affidavit, upholding the underlying certification, and ruling that the Company's refusal to bargain violated the Act. See Telemundo of P.R., Inc., 321 NLRB No. 133, slip op., 1996 WL 473376 (NLRB Aug. 16, 1996). These proceedings followed apace.

II. ASSEMBLING THE CAST

The employees in the bargaining unit are members of the Company's production services department, which has the responsibility for producing live and taped telecasts. During the pendency of the representation proceeding, the department comprised, inter alia, the director (Rivera), the technical supervisor (Corps), three program directors, three TDs, audio and lighting persons, and eighteen studio technicians. Typically, the TS prepared a daily schedule delineating which employees would work on which programs and establishing a specific set of responsibilities for three crews, each headed by a TD and including technicians (e.g., cameramen, a floor manager or coordinator, audio and lighting persons, a character generator operator) assigned to the crew by the TS.

In the pre-production stage, the crew's activities are dictated for the most part by the script for the upcoming program. The TD is given the script, sometimes called a run-down, and it is incumbent upon him to ensure that the studio is prepared for production according to the script and that all hands are present and in their places. When the performance begins, a program director takes over and the TD retires to operate the camera control panels in the control room. Some crew members work in the control room alongside the TD; others work on the floor.

After the performance ends, the TD again comes to the fore; in the course of an approximately 30-minute process known as the wrap, the TD and his crew store the equipment and other programming paraphernalia in the control room. All three TDs, but no studio technicians, possess keys to the control room, and, after the equipage is stored, the TD assumes responsibility for locking the room. The TD also prepares and files a daily report which memorializes the crew's membership, catalogues the equipment used during production, and relates any problems that occurred with regard to either personnel or equipment. The program director and the floor coordinator likewise file daily reports.

To achieve a balanced picture, it is important to note what TDs do not do. They ordinarily do not make disciplinary recommendations in their daily reports; rather, the technical supervisor reads the reports and takes whatever disciplinary action he thinks is appropriate. The TDs neither participate in the disciplining of errant employees nor perform employee evaluations. They do not interview, hire, promote, demote, or terminate other workers. They do not address employee grievances.

As in any workplace, absenteeism occurs. In a TD's absence, another TD or the TS will replace him. Technicians who find themselves unable to work must inform the TS, who will secure a replacement. If neither the department director nor the TS is at the station (as frequently occurs on weekends, holidays, and during some night shifts), a TD may be the highest-ranking employee on the premises. As such, he will recruit needed substitutes from another crew or from a list composed by the technical supervisor and posted in the production office. The TS often will "pop in" on such occasions, and, in any event, the TDs have the home telephone numbers of both the director and the TS, and they are under instructions to call either or both of these individuals in case of an emergency.

The TDs have some trappings of a higher echelon. They receive more munificent salaries, larger bonuses, and better benefits than the studio technicians. They rate reserved parking spaces and separate desks (albeit in a common office). They occasionally have been invited to attend supervisors' meetings (including a few meetings at which collective bargaining negotiations were discussed). Sporadically, TDs have initiated meetings among technical personnel--but they do not have the power to follow through on such initiatives unassisted. For instance, when a TD notified Rivera of his wish to discuss tardiness, work habits, and care of equipment with the technicians in his crew, Rivera called such a meeting and the TD ran it. On another occasion, a TD drafted (but did not send) a memorandum requesting that technical personnel report to the studios at the entry time set by management even if they had no assigned work then and there. Rivera rewrote the memo for signature by the TS and the TD, adding a reminder about the possible consequences of noncompliance.

III. THE RATINGS

In rating the Board's performance, we first review its determination that the TDs are not supervisors.

A. Receiving Our Cues.

To put this case into perspective, it bears remembering that the Act strives to limn a clear distinction between management and labor. To that end, supervisory employees are excluded from the bargaining process because they must represent the interests of their employer rather than the interests of their coworkers. See Stop & Shop Cos. v. NLRB, 548 F.2d 17, 19 (1st Cir.1977). The Act defines a "supervisor" as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11). B...