NBC, Freeman has responsibility for keeping the executive producer inf ormed of various news developments and his (Freeman's) judgments concerning such developments. Tr. 863 (Wheatley); 1714-15 (Chesnutt). Wheatley testified that he relies on the writers for information that is critical in making his decisions as to what goes on the air. Tr. 871, 913-14, 943 (Wheatley). Since no individual "can have a corner on the information and judgment market," it is crucial that there be an active exchange of ideas and information. Tr. 873-74, 877-78 (Wheatley). Writers' are therefore expected to provide information, make suggestions and share their judgments and insights throughout the day. Tr. 887-88, 939-40 (Wheatley); 1443-44 (Gould); 1883, 2022-23 (Deitch). Freeman's recommendations are taken very seriously and not just considered "idle talk in the news room." Tr. 1715-16 (Chesnutt). Deitch testified that his "evaluation" of a story carries considerable weight. Tr. 1875-76, 2008-09 (Deitch). "I will say to Mr. Wheatley that I think the story is not worth telling. And he will then invariably say, 'Let's drop it.'" Tr. 2010 (Deitch).
Writers regularly attend and participate in the morning meetings. Tr. 873, 876 (Wheatley); 1441 (Gould); 1876-77 (Deitch). Gould testified that the meeting is "like a family dinner table discussion amongst all the producers [and] writers in the room, where we really do hash out what we think ought to be getting covered that day and how the pieces should look." Tr. 1440 (Gould). All the participants in the meeting, including Freeman, discuss potential stories and offer their opinions regarding "what angles to focus on." Tr. 1877 (Deitch); see also Tr. 1441 (Gould). Both Freeman and Deitch make recommendations regarding the length of a story, participate in the selection of graphics, direct the work of the tape producers, and give assignments to researchers and production assistants. Tr. 830, 874-75, 909, 974-75 (Wheatley); 1445, 1470-71, 1565 (Gould); 1884-87, 2023-25 (Deitch). Wheatley acknowledged, however, that he makes the final decisions on what graphics will be used on the program and "the critical decisions as to what stories are in the program." Tr. 909, 912 (Wheatley).
During the afternoon rundown meeting, the writers often suggest stories, since they are the ones who are most "familiar" with the wires. Tr. 1444-45 (Gould). The run-down meeting is "a collegial effort" in which "everybody volunteers ideas," and in which the writers freely express their disagreement with the judgment of the executive producer.
Tr. 1445 (Gould); see also Tr. 2008 (Deitch). In sum, writers are "full-fledged citizens of [the] editorial process."
Tr. 975 (Wheatley).
Both Wheatley and Gould testified that the "national outlook" prepared by Freeman is an essential part of the process by which Nightly News is produced.
Tr. 878 (Wheatley); 1442-43, 1468 (Gould). In addition, according to Wheatley, the lists of suggested stories that are compiled daily constitute "opinions as to what is newsworthy and what we might want to include in the program" and therefore play a significant role in the exchange of ideas.
Tr. 877-79 (Wheatley). Several of these lists are compiled each day to prevent reliance on any one person's judgment. Tr. 877-78 (Wheatley). Wheatley testified that, in fact, the stories suggested by writers are frequently put on the air.
Tr. 878-79 (Wheatley). Often it is the writers, since they are the ones "responsible for keeping up,"
who are the first to notice late breaking developments or an important story that has been overlooked. Tr. 886 (Wheatley). The writers are expected to flag new developments throughout the day, including during the newscast and make necessary changes or create new copy and get it to the anchor. Tr. 885-86 (Wheatley); l461-63 1465 (Gould).
NBC's witnesses disputed Freeman's testimony that preparing the digests, or "News at This Hour" is "routine editorial work." See Tr. 56 (Freeman). According to NBC, the digests are "self-contained news programs," in which "prominent NBC news on-air personalities present brief reports about significant news stories"; they are a "showcase for NBC News talent." Def. Br. at 23. Producing the digest requires the writer to become familiar with all of the available stories, choose and select the stories that will be included, write the stories, decide what tape, pictures or graphics to use, work with the anchor and serve a control room producer
in supervising the director and other technicians who participate in the broadcast. Tr. 1866 (Deitch). Deitch testified that he rarely shows his scripts to the news editor or anyone else, that the writer has virtually complete discretion to select the tape or graphics that are used and, for all practical purposes, is fully responsible for both the content and appearance of the broadcast. Tr. 1866-67, 2039-42 (Deitch). According to Deitch, "if I don't like the reading * * * of the script, I'll tell the director to tell the talent to do it again." Tr. 2039 (Deitch). Producing these programs, according to Deitch, is a "one-man show."
Tr. 1867 (Deitch).
III. Testimony Pertaining to Brown
As noted above, Brown served as the domestic producer on Weekend Nightly News from September 1983 through January 1990. For most of that period, Brown was supervised by Chesleigh and Sullivan. NBC contends that as domestic producer of Weekend Nightly News, Brown held "one of the most responsible producer positions in the NBC network news organization." Def. Br. at 35. Brown's position was virtually identical to the position of the domestic producer on Nightly News, which, for most of the period relevant to this litigation, was held by Chesnutt.
Tr. 1611-12 (Sullivan); 1666, 1669-70 (Chesnutt). As domestic producer, Brown was responsible for the generation, creation and conceptualization of domestic story ideas, the development, oversight and approval of domestic stories produced in the field by correspondents and field or segment producers, and the coordination and editing of these stories. Def. Br. at 36; see also Tr. 840-41 (Wheatley); 1446-49 (Gould).
Although the domestic producers on both Nightly News and Weekend Nightly News are expected to suggest and develop story ideas,
this function is particularly important on the weekend program because most of the bureaus virtually shut down on Saturday and Sunday. Tr. 1621-22 (Sullivan). Accordingly, the weekend domestic producer must initiate contact with correspondents to make specific plans for the coverage of weekend stories. Tr. 1616-18, 1621-22 (Sullivan). Unless the domestic producer aggressively pressures the bureaus for stories, and keeps in close contact with the correspondents involved, weekend stories may be forgotten and never reach the air. Tr. 1621-22 (Sullivan). Sullivan testified that he had frequently urged Brown to take greater initiative in "bugging the bureaus for stories," and suggesting story ideas to correspondents. Tr. 1622-23, 1643 (Sullivan).
According to Sullivan, once the decision has been made to cover a particular news item, the domestic producer becomes the "shepherd" of the story.
Tr. 1619 (Sullivan). NBC's witnesses strongly disagreed with Brown's characterization of his function as "relaying" to correspondents the assignments and instructions of the executive producer.
Several NBC witnesses testified that the domestic producer also explains to correspondents what the show is looking for in terms of the "shape" and "meaning" of the story, or how it ought to be "played." Tr. 840-41 (Wheatley); 1620-21 (Sullivan); 2183, 2187 (Chesleigh). Sullivan described the domestic producer as "the point man for the domestic story," who must maintain an ongoing dialogue with correspondents in the field. Tr. 1619-20, 1632 (Sullivan); see Tr. 1671-74 (Chesnutt). Sullivan testified that contrary to Brown's testimony that he merely relayed the executive producer's assignment and waited for the correspondent's script, he (Sullivan) had personally observed Brown monitoring the development of the story by talking to the field during the entire process. Tr. 1623-24 (Sullivan); see also note 46 (Brown's participation in story on Avianca crash).
The domestic producer has the additional responsibility and authority to grant "script approval" on stories prepared by correspondents. Tr. 1449-50 (Gould); 1629-30 (Sullivan). Traditionally at NBC, no mechanical editing of videotape is permitted to take place in the field without prior script approval from New York. Tr. 1629-30 (Sullivan). Although the executive producer has final authority over all scripts, this authority is frequently "ceded" to the domestic producer because of time constraints. Tr. 1629-31 (Sullivan). Sullivan testified that correspondents' scripts were edited for "style," "structure" and "pungency of language," as well as grammar, accuracy and understanding. Tr. 1625 (Sullivan); see Tr. 408-09, 416-17 (Brown). Sullivan disagreed with Brown's testimony that the editorial function of the domestic producer is similar to that of a newspaper copy editor. Tr. 1627 (Sullivan). Sullivan testified that a newspaper copy editor "would die under the pressures of being a domestic producer of Weekend Nightly News," which involves "screening pieces, talking to the tape room and dealing with the content of the stories that you are in charge of in * * * 30 seconds." Tr. 1644-45 (Sullivan).
Once the script is approved by the domestic producer, and the piece is completed by a correspondent, the domestic producer must make certain that the finished piece is fed into the studio in New York, timed, reviewed, and ready to be aired at the designated time. Tr. 1631-32 (Sullivan); 1450-52 (Gould); 1677-79 (Chesnutt). The domestic producer is expected to look at every frame of every domestic piece. Tr. 1632 (Sullivan). Although the executive producer tries to review all completed domestic stories, the "latest entries on the domestic side may very well be screened only by the domestic producer." Tr. 1632 (Sullivan); see also Tr. 1451-52 (Gould); 1713 (Chesnutt).
Sullivan questioned whether Brown was "totally serious" when he testified that he doesn't "pay too much attention to the picture" (see Tr. 494-96, 506-09). Tr. 1628 (Sullivan) Sullivan explained:
When you are reading the script, you don't ask, "Did you pan left or right?" * * *
If you read and can tell that the script is fudging, that they didn't get the key pictures 50 they are kind of writing around the lack thereof, you say, "Do you have a picture of the guy doing this or not doing that?" And I am absolutely sure Bernie Brown asks that question every time.
Tr. 1628-29 (Sullivan).
Wheatley described the senior producer as the "strong right hand of the executive producer," and "the person [who] works most closely in coordinating the news from Washington and how it's presented on the program." Tr. 821 (Wheatley); 1446, 1466 (Gould). The senior producer also edits anchor scripts written by the newswriters, and serves as control room producer. Tr. 1454-55, 1467 (Gould); 1632-34 (Sullivan). The control room was vividly described by Gould, as "frantic," even on relatively calm days.
Tr. 1454-60, 1560-61 (Gould). Although there is a second-by-second show script, changes are made during the broadcast from the control room almost every night. Tr. 1457 (Gould). For example, if a story does not arrive in time for its scheduled place in the broadcast, the senior producer must decide instantly what to do and communicate the change to the anchor, prompter and broadcast director. Tr. 1456-57, 1563 (Gould). On some nights, "you can throw the routine out the window." Tr. 1563 (Gould). The executive producer frequently provides instructions to the control room producer prior to the broadcast regarding how changes are to be made, such as a "kill list," and also has a direct line to the control room. Tr. 1637, 1639 (Sullivan).
The senior producer, however, must often make decisions without direction from the executive producer because things are happening too quickly to permit consultation.
Tr. 1459-60 (Gould); 1637-38 (Sullivan). Sullivan testified that the control room producer must exercise "independent judgment," including "news judgment, as well as "technical," "practical" and "editorial" judgment. Tr. 1638-39 (Sullivan).
IV. Testimony Pertaining to Garner
The testimony pertaining specifically to Garner came primarily from WNBC witnesses Walker, Friedland, Moll and Yoakum (called by NBC) and Miller and Ryttenberg (called by plaintiffs).
NBC's witnesses generally confirmed Garner's description of the elements of his work. NBC acknowledged that Garner does not pick his daily assignments or make the final decisions regarding which stories will be covered and broadcast. See, e.g., Tr. 1417, 1420 (Friedland); 2552-53, 2721-22 (Walker). However, Garner does suggest stories that may ultimately be put on the air. Tr. 2712-13 (Walker). According to Walker, a field producer gathers, develops, shoots, writes and edits a news story in the field but does not appear in the broadcast. Tr. 2560 (Walker). Or, as WNBC executive producer Clare Friedland put it, "it is the field producer's responsibility to gather all the elements that would be necessary for having a story that's ready to be put on the air." Tr. 1380 (Friedland); see also Tr. 853 (Wheatley); 2560-65 (Walker); 1047 (Frank). Friedland described the field producer as "the boss of the story when he's out in the field." Tr. 1381 (Friedland). Yoakam explained that "the reason the field producer position was developed was to keep more editorial control closer to the story, in the field. * * * The field producer is absolutely essential to get that control on the scene, to be the point person on the story * * *; [he] is a very important part of the editorial function." Tr. 2488-89 (Yoakam). This responsibility is shared when a correspondent is also assigned to the story. Tr. 2562-64 (Walker).
Walker acknowledged that field producers receive instructions in the field from the assignment desk, and that at times there can be contact every five or ten minutes for periods of an hour or more. Tr. 2694 (Walker). Friedland testified, however, that management does not give the field producer directions as to what types of shots to get in the field. Tr. 1381 (Friedland). The field producer shares this role with the cameraman,
but the cameraman must follow the field producer's directions. Tr. 1381 (Friedland); 2564-65 (Walker)."
Friedland emphasized that daily deadlines do not permit management to review all the information the field producer has obtained in the field in order to determine whether the most interesting facts have been used. Tr. 1390 (Friedland). Management must "rely on the field producer's judgment to a great extent." Tr. 1391 (Friedland); see also Tr. 2489-90 (Yoakam). Accordingly, the show producers regularly solicit the field producer's opinion regarding the value of a story. Tr. 1385 (Friedland). Although the field producer does not make final decisions, he is expected to evaluatethe news event and make recommendations to management regarding appropriate coverage. Tr. 1385-86 (Friedland); 2559 (Walker).
Friedland acknowledged that field producers are required to call in when they believe that they have finished their story. Tr. 1383-84 (Friedland). Friedland explained that the show producers need to
know how important or good a story is, whether it is important because of just its inherent news story or it's got great visuals or people got into an argument and it is very exciting. Show producers need to know that so that they know how to routine their shows, where to put the story in the program.
Tr. 1384 (Friedland).
After the field work is completed, the field producer is frequently responsible for writing the story, cutting the videotape, and doing whatever is necessary "to make sure that * * * story gets on the air." Tr. 1385 (Friedland). Before the field producer beings writing and editing the videotape, he consults with the show producers about "what kind of story he has" and "how much time he thinks he needs for the story versus how much time the show producer has just assigned to the story. So there's a bit of a bargaining process that goes on, sort of * * haggling."
Tr. 1385-86 (Friedland). Although the field producer is told the length and format of the story, he is generally not given any specific guidance regarding the content of the story or the sound and pictures to be used.
Tr. 1388 (Friedland).
Walker stressed the importance of presenting memorable and interesting newscasts that use effective storytelling and "honestly go for emotion." Tr. 2554-56 (Walker). According to Walker, "it's our role as agenda setters to * * * weed through the huge amounts of information and * * * select which information goes before our viewing audience," a role which requires constant analysis and evaluation of complex facts and issues. Tr. 2554-55 (Walker). Garner may not, however, offer his personal opinions or conclusions.
See Tr. 2700-O2 (Walker).
Walker acknowledged, that WNBC does not report the news differently than local news stations in Houston or Tulsa, and that WNBC reporters do not analyze, evaluate, or interpret the news more than those stations. Tr. 2693 (Walker). She also acknowledged that newspapers, radio, magazines and wire services, as well as television news, try to convey emotion and use effective story telling. Tr. 2720 (Walker). Walker testified, however, that WNBC has more "polish," and that the "quality" of journalism is higher in New York. Tr. 2693, 2704-05 (Walker).
When supervising editing, the field producer may give specific instructions or general "guidelines" to a videotape editor as to how the tape should be cut. Tr. 1391, 1415-17 (Friedland). The choice of tape should be "interesting" and "dramatic," and the field producer is expected to make sure that the end product contains the best possible footage and sound bites. Tr. 1392, 1415 (Friedland). Although the field producer may ask a tape editor to choose a piece of videotape, and although the tape editor does the "actual button pushing," the field producer retains final editorial responsibility for the piece. Tr. 1391-92, 1415-17 (Friedland); Tr. 2568 (Walker). Frank described editing as "the process of picking the pictures that are relevant to the story and arranging the flow, the juxtaposition." Tr. 1050 (Frank). It is not, as Garner testified, "cut and dried."
Tr. 2501 (Yoakam). The field producer's work in the editing room is virtually unsupervised. Tr. 1390-91 (Friedland).
NBC disputed Garner's testimony that the content of his work is dictated to a large extent by time constraints and predetermined show "formats."
See Tr. 1587 (Moll) ("format doesn't dictate how something is written"); 2558 (Walker) (format does not determine editorial content). Friedland described a "loose structure," common to the programs produced each day, that requires every news story to begin and end with an anchor person on camera. Tr. 1421 (Friedland). The story starts with an anchor person on camera, who reads a lead-in to either a reporter's package, a piece that the anchor has previously recorded or a tape prepared by a field producer. Tr. 1398 (Friedland). Every story is followed by an on-camera tag read by the anchor that "kind*fn116"
When the field producer has completed the script for a news story, it is reviewed and possibly edited by the associate producer or producer, and usually the assistant news director. Tr. 1389-90, 1412-13 (Friedland). The script (and occasionally the completed tape) may be reviewed by the executive producer prior to broadcast if it is a "sensitive story" or raises "legal concerns." Tr. 1389-90, 1394-95 (Friedland). Generally, however, daily deadlines require WNBC to rely heavily on the "judgment" and creativity of individual field producers. Tr. 1390-91, 1396-97 (Friedland).
NBC introduced into evidence and played at trial a number of examples of Garner's work, including part of the award-winning sweeps series, "Surviving a Stay in the Hospital," produced with correspondent Mike Taibbi. Tr. 1329-30; Def. Ex. BL.
To illustrate NBC's contention that the job of field producer requires talent and imagination, Walker compared police funeral stories prepared by Garner and by WNBC correspondent Perri Pelts. NBC Ex. DF; Tr. 2571, 2575-81, 2705-12 (Walker). Walker was "disappointed" with Pelts's story, Tr. 2575, but thought Garner's "showed an example of how you take a routine story and make it beautiful." Tr. 2580 (Walker). Walker observed, for example, that Pelts "talked over virtually every part of [the] story," whereas Garner let natural sound--"the bells, the drum beat, the sobbing of the widow"--tell the story. Tr. 2577-79 (Walker). According to Walker, knowing how to match the words with the pictures and when to use natural sound is "a talent that some people have, and Bob has it * * * and Perri doesn't."
Tr. 2579 (Walker). At the same time, however, Walker conceded that certain elements are expected in every police funeral story, such as the playing of taps, the line of police officers, the widow, and officials expressing outrage. Tr. 2576, 2579 (Walker). She also acknowledged that WNBC broadcast the Pelts story despite its deficiencies, that Pelts has remained a correspondent, and that she is receiving additional training to improve her work. Tr. 2725-26 (Walker).
Narrowly construed, the FLSA exemptions exclude from overtime coverage only those employees who fall "plainly and unmistakably" within their terms. Based on the evidence presented at trial, I find that NBC has failed to prove by a preponderance of the evidence that plaintiffs are exempt as administrative or professional employees. As a result, I conclude that plaintiffs are entitled to have their fees included in their wage base for purposes of calculating overtime.
In reaching this conclusion, I have been both aided and ultimately persuaded by the analysis of the district and circuit courts in Dalheim. Of course, as those decisions repeatedly remind us, the determination of whether an employee is exempt is "principally one of fact," 706 F. Supp. at 495, that the inquiry into exempt status is "intensely factbound and case specific," 918 F.2d at 1226, and that "each case must be judged on its own peculiar facts." 918 F.2d at 1227. I find, however, that the tasks performed by reporters, producers, editors and directors at KDFW, and their role in the production of a newscast, are virtually indistinguishable from those performed by the plaintiffs in this case.
Significantly, NBC does not contend that the functions performed by the Dalheim plaintiffs differ in kind from those performed by the plaintiffs in this case. Rather, NBC distinguishes this case from Dalheim primarily on the ground that "KDFW, unlike NBC, imposed substantial creative restraints on its reporters and producers." Def. Reply at 33.
With these general observations in mind, I turn to the application of the FLSA to the specific facts of this case.
I. Administrative Exemption
The first prong of the short test requires that an administrative employee's primary duty consist of "work directly related to management policies or general business operations." 29 C.F.R. §§ 541.2(e)(2), 541.214(a). The interpretations instruct that such work includes "those types of activities relating to the administrative operations of a business as distinguished from 'production.'" 29 C.F.R. § 541.205(a) (emphasis added). As the Fifth Circuit held in Dalheim, "the distinction § 541.205(a) draws is between those employees whose primary duty is administering the business affairs of the enterprise from those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market." Dalheim, 918 F.2d at 1230 (footnote omitted). "The regulations contemplate that administrative work includes advising management, planning, negotiating, representing and promoting the company." Dalheim, 706 F. Supp. at 507 (citing § 514.205(b)).
The interpretations further provide that
the phrase "directly related to management policies or general business operations" is not limited to persons who participate in the formulation of management policies or in the operation of the business as a whole. Fmployees whose work is "directly related" to management policies or to general business operations include those [whose] work affects policy or whose responsibility it is to execute or carry it out. The phrase also includes a wide variety of persons who either carry out major assignments in conducting the operations of the business, or whose work affects business operations to a substantial degree, even though their assignments are tasks related to the operation of a particular segment of the business.