Detroit Stage Employees' Union No. 38

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such discussion and subsequent agreement on a contract silent on the subject, the Company may rely on a waiver by the Union of any right to raise the question as to contracting out during the pendency of the agreement. In this area of contention the General Counsel and the Charging Party place prin- cipal reliance on the Board's decision in Proctor Manufacturing Corporation, 131 NLRB 1166. Respondent asserts that decision is inapposite . I read Proctor Manu- facturing as distinguishable in the significant respect that in Proctor the employer made no contention in the precontract bargaining that establishment and revision of piece rates (the analogue of contracting out here) was a management preroga- tive. In the instant case, however, as appears from the testimony of the union officials, the Company here did bluntly assert in the bargaining the position that contracting out was a management prerogative . No charge of unfair labor prac- tice appears to have been filed at the time nor in any of the many previous cases of contracting out work of locating circulating pumps or other jobs performed and/or performable by unit employees. Notwithstanding the inapplicability of the Proctor decision, general principles of interpretation would seem to require the conclusion that in view of the breadth of the scope of the obligation to bargain prior to unilateral action on so vital a matter as the employment opportunities of unit employees I would regard the Act as im- posing on the employer here the duty to advise the Union of an intent to contract out work performed and/or performable by unit employees and to hear the Union's position in reasonable patience and attention appropriate to business exigencies prior to taking action. Were it not for the history of past action recounted above, I would find a refusal to bargain here. In view of my finding that Respondent has not, as alleged in the complaint , changed existing working conditions of employees in the unit, I conclude that the General Counsel has failed to make out an unfair labor practice within Section 8 (a) (5) and (1 ) of the Act, on the part of the Company. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. The Company is not shown to have engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing Findings of Fact and Conclusions of Law, it is recommended that the complaint herein be dismissed. Detroit Stage Employees' Union, Local No. 38, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO and Radio and Television Broadcast Engineers Local Union 1218, International Brotherhood of Electrical Workers, AFL-CIO and Kaiser Broadcasting Corporation. Case No. 7-CD-123. April 22,1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10 (k) of the National Labor Relations Act, as amended, following a charge filed by Kaiser Broad- casting Corporation, herein called the Employer, alleging that Detroit Stage Employees' Union, Local No. 38, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators 152 NLRB No. 11. DETROIT STAGE EMPLOYEES' UNION NO. 38 65 of the United States and 'Canada, AFL-CIO, herein called IATSE, had violated Section 8(b) (4) (D) of the Act by conduct intended to force or require the Employer to assign certain work to IATSE mem- bers rather than to the Employer's own employees who are represented by Radio and Television Broadcast Engineers Local Union 1218, Inter- national Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW. A hearing was held before Hearing Officer George Rallis on February 9 and 10, 1965. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer and by IBEW which have been duly considered. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the entire record in this proceeding the Board makes the fol- lowing findings: A. The business of the Employer Kaiser Broadcasting Corporation is a wholly owned subsidiary of Kaiser Industries, Inc., a Nevada corporation . The Employer is en- gaged at Detroit and Southfield, Michigan, in the transmission of tele- vision broadcasts and at San Francisco, California, in the transmission of radio broadcasts. In the operation of its business, the Employer annually receives gross revenues in excess of $100,000 from its broad- cast operations. The parties agree, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. B. The labor organizations involved The parties stipulated, and we find, that IATSE and IBEW are labor organizations within the meaning of Section 2(5) of the Act. C. The work in dispute The dispute at the Employer's Southfield, Michigan, broadcasting operation involved the following work : The building, maintenance, repair, placement, and any operation in connection with television performances of backgrounds, platforms, and other structures forming a part of the scenery or the set picked up by the cameras, and also parallels or platforms used to raise or set 789-730-66-vol 152-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cameras upon ; all spotlights and other lighting devices used to light the television sets; properties used on set picked up by the camera, including the handling of all cards and displays used in the studio and on remote pickups during rehearsal and show; handling lighting on field pickups ; and procuring properties and construction work, and marking scenery, properties, or other things so constructed with the union label. D. The basic facts In the fall of 1964, the Employer began work on establishing an ultrahigh frequency ( UHF) television station, WICBD, in Southfield, Michigan, which commenced broadcasting over channel 50 in the Detroit metropolitan area on January 10, 1965. The Employer's television operation is unique , in that it is entirely sports oriented, with some 85 percent of its programs originating from a "remote" site, e.g., a high school or college stadium, fieldhouse, or other sports arena. The remaining 15 percent of its programs originate from the Employer's single studio and consists of "Sports Central"- covering all sports , news, interviews with sports personalities, and pre- and post-"remote" show continuity. It also includes several "capsule" newscasts each evening . The "Sports Central" set and its attendant lighting, although movable, have remained in a fixed position since prior to the date WKBD began telecasting from the studio . Further, the Employer has made arrangements to have permanent and fixed lighting installed throughout its studio which will be operated by a master switching panel , involving only "off-on" switching without significant light adjustment . As for the "remote" programing, the Employer sends a crew of technicians equipped with cameras, cables, and other equipment, in specially designed mobile vans , to set up and handle the telecast from the "remote ." The lighting for these tele- casts is provided and handled by the arena where the sports event is taking place and is usually adequate . When necessary, however, a spotlight is clipped onto the television camera. The Employer also has shown a "remote" wrestling match which required the transport- ing, setting up, and adjusting of lights at the site. Similarly, the Em- ployer produces a rock-and -roll. show which requires the transporting, setting up, and adjusting of lights at the "remote " site. The handling of the lights, which is within the disputed work sought by IATSE, re- quires a total of about 10 to 20 minutes' work per day. Since the fall of 1964, IATSE representatives have attempted to have the Employer hire its members to perform the work in dispute, although no work in that category was available until actual broad- casting began on January 10, 1965. On January 7, 1965,' IBEW was certified by the Board as the exclusive bargaining representative of all 1 Unless otherwise indicated , all dates are in 1965 DETROIT STAGE EMPLOYEES ' UNION NO. 38 67 regular full-time television engineers employed by the Employer at its Southfield, Michigan, installation . On or about January 6 , agents of IATSE met with the Employer again and attempted to persuade the Employer to assign the work in question to members of IATSE. The Employer refused, stating that to the extent that there was work in the contested area, it had been assigned and would continue to be performed by its employees who are members of IBEW. IATSE business representative Warren R. Wilson thereupon stated "that I may have to picket," and on January 12, IATSE commenced picketing at the Southfield transmitter with signs stating "Channel 50, WKBD- TV, Unfair to Members of Stage Employees Union, IATSE, Local 38, AFL-CIO," and "Channel 50, WKBD-TV, Refuses to Hire Stage Hands and Gives that Job to Others. Stage Employees Union, IATSE, Local 38, AFL-CIO." E. Contentions of the parties IBEW claims the disputed work on the basis of its certification; the Employer's assignment ; the Employer's past practice ; and the skill, efficiency , and economy with which employees represented by it per- form the work. The Employer agrees with this contention , and fur- ther contends that the disputed work is so minimal that it is incidental to other work performed by its employees . IATSE, on the other hand, relies on industry and area practice to support its claim of jurisdiction over the work. F. Applicability of the statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b) (4) (D ) of the Act. The uncon- troverted evidence shows that IATSE picketed the Employer's South- field premises in order to force and require the Employer to assign the disputed work to IATSE members rather than to the Employer's own employees who are members of IBEW. Accordingly, on the basis of the entire record, we find that there is reasonable cause to believe that ,a violation has occurred and that the dispute is properly before the Board for determination. G. Merits of the dispute Section 10 (k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors. The following factors are asserted in support of the claims of the parties herein : 1. Certification; contract As indicated above, IBEW was certified by the Board on January 7 as the exclusive bargaining representative of all full-time television 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineers employed by the Employer at its installation in Southfield, Michigan, but excluding office clerical employees, guards, and super- visors, as defined in the Act, and all other employees. The certifica- tion was not an assignment of the disputed work. At the time of the hearing, IBEW and the Employer were still negotiating a collective- bargaining agreement. Athough representatives of IBEW testified that its contract proposal submitted to the Employer purported to cover the work in dispute, no contract had been signed and the pro- posal, therefore, cannot constitute an assignment of the work. IATSE does not represent any employees of the Employer and has no con- tract with the Employer. 2. Company, area, and industry practice IATSE contends that in the Detroit area the disputed work is traditionally performed by its members. In support of this conten- tion, it introduced into evidence its collective-bargaining agreements with each of Detroit's three very high frequency (VHF) network tele- vision stations. However, unlike those stations, the Employer, as more fully set forth above, is engaged in UHF broadcasting with most of its programs originating from a "remote" site where little or no work in the disputed category is required. Thus, an analogy between the Employer's practice and the general industry practice in the area is inconclusive. The only other UHF television station in the Detroit area is engaged in broadcasting educational programs over channel 56, and has two employees performing the type of work here in dispute. IATSE waived its jurisdictional claim at that station in favor of IBEW. This waiver, of course, is not binding upon IATSE in the instant dispute, but, it appears from all the facts that there is no clear practice such as IATSE asserts. 3. Efficiency of operation Both disputants have the necessary skill to perform whatever work the Employer has in the disputed category. As pointed out above, however, because of the nature of its programing, the amount of such work available here is sporadic and minimal. It is clear, therefore, that this work is done more efficiently and economically by the Em- ployer's own employees as an incident to, and in conjunction with, their regular work of operating the cameras. 4. Arbitration or other awards The parties agree that there has never been any award covering the work in dispute. Nor was there evidence that the two labor organiza- DETROIT STAGE EMPLOYEES' UNION NO. 38 69 tions involved are parties to any agreement regarding possible assign- ment of the disputed work. CONCLUSION Upon consideration of all pertinent factors in the entire record, we shall assign the work in dispute to the Employer's television engineers. They have performed it to the satisfaction of the Employer, who de- sires to retain them for the work. This assignment is consistent with the Employer's past practice, and as the work consumes but a very small portion of each workday it can be performed more efficiently and economically as an incident to work normally done by the television engineers. Under these circumstances, we conclude that the Em- ployer's assignment of the work to the television engineers should not be disturbed. We shall, accordingly, determine the existing jurisdic- tional dispute by deciding that television engineers rather than stage employees are entitled to the work in dispute. In making this deter- mination, we are assigning the disputed work to the employees of the Employer who are represented by IBEW but not to that Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in the proceeding, the Board makes the following Determination of Dispute pursuant to Section 10(k) of the Act: 1. Engineers employed by Kaiser Broadcasting Corporation, who are represented by Radio and Television Broadcast Engineers Local Union 1218, International Brotherhood of Electrical Workers, AFL- CIO, are entitled to perform the disputed work at the Employer's Southfield, Michigan, television operation. 2. Detroit Stage Employees' Union, Local No. 38, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, is not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or re- quire the Employer to assign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, the Respondent, Detroit Stage Employees' Union, Local No. 38, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 7, in writ- ing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to its members rather than to television engineers.