Directors Guild of America, Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Directors Guild of America, Inc. and Golden West Broadcasters and its wholly owned subsidiary Golden West Films, Inc.' and International Alli- ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Case 31-CD-102 April 12, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Golden West Broadcasters and its wholly owned subsidiary Golden West Films, Inc., herein called the Employer, alleging that Directors Guild of America, Inc., herein called the Guild, had violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Guild, by threats and economic action, violated the Act in that one of the purposes of such conduct was to force the Employer to assign certain work to its members rather than to members of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, herein called I.A.T.S.E. Pursuant to notice, a hearing was held in Los Angeles, California, before Hearing Officer Noel Shipman on November 26, 1973, and December 3, 1973. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Thereafter, the Employer and I.A.T.S.E. filed briefs. These briefs have been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, a California corporation with its principal office and place of business in Los Angeles, California, is engaged in television and radio broadcasting. The parties stipulated, and we find, I As amended at the hearing. 2 "Below-the-line" personnel, including stage manager, generally in- cludes the technical personnel, laborers, and craftsmen necessary for a that during the past year the Employer received goods and materials valued in excess of $50,000 directly from sources outside the State of California and that its gross revenue during that period was in excess of $500,000. We find that the Employer is engaged in commerce 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. II. 1HE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Guild and I.A.T.S.E. are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in the operation of television station KTLA and radio station KMPC in Los Angeles as well as in providing stage and video facilities to independent tape producers. Through its Videotape Division the Employer rents stage or studio facilities, including equipment and "below-the-line" personnel2 to advertising agencies and independent producers for their use in the making of commercials and programs recorded on videotape. During such productions it is the principal duty of a stage manager to assist directors and producers in the performance of their duties. The stage managers perform routine functions, such as the relaying of information from the director to the floor, cueing talent at the request of the booth director, and making sure that props , sets, and talent are in the proper place and available as prescribed by the director or producer during rehearsal and during shooting. These directions are given through a communication system utilizing head sets, that ties together the director, who is isolated in a glass booth, with the lighting director, audio engineer, videotape engineer, cameramen, and stage managers. The director's only means of visual contact with the stage is through a closed circuit monitor, and his only means of verbal communication with the talent and crew is through the headsets. As all of the Employer's technical personnel are represented by the I.A.T.S.E., the stage manager is normally a member of the I.A.T.S.E. However, many of the independent producers who use the Employ- er's facilities and several major film companies whom the Employer seeks to acquire as customers "shoot" as opposed to "above-the-line" talent, directors, etc., provided by the producer. 210 NLRB No. 6 DIRECTORS GUILD OF AMERICA, INC. 47 are bound to agreements with the Guild which require that a second stage manager be represented by the Guild. But since at least 1961, when producers signatory to the guild tape supplement, requiring use of a guild stage manager, have used the Employer's Videotape Division facilities, there has been in effect a waiver of the guild tape contract's requirement in that the guild stage managers were not required to wear headsets and, therefore, did not actually function as stage managers. However, the Guild notified the Employer by letters in December 1972 and February 1973 that if the Employer's subsidiary, Golden West Films, Inc., herein called Films, did not recognize the Guild as the collective-bargaining representative for the stage managers, the Guild would instruct its members not to render services to the Employer, either as an employee of Films or as an employee of an independent producer using the Videotape Division. The Guild further notified the Employer that the Guild would strictly enforce all provisions of the guild tape supplement against all independent producers, thereby rescinding the waiver which had been in effect since 1961. The Guild implemented its threats to the Employer by a letter on May 30, 1973, to its members, many of whom are "above-the-line" supervisors, stating that they may not work for producers signatory to the Guild Tape Supplement on productions at the Employer's Videotape Division facilities unless the duties of stage manager, including wearing the headset, are assigned to and performed by guild members. The I.A.T.S.E. has continued to demand that, pursuant to its contract with the Employer, the work tasks of stage manager, including wearing the headset, continue to be assigned to members of the I.A.T.S.E. Thus, the Guild created the jurisdictional dispute herein over the stage manager's work tasks being performed at the Employer's Videotape Divi- sion facilities because of the conflicting jurisdiction provisions of the Employer-I.A.T.S.E. contract and the guild tape supplement. B. The Work in Dispute The work in dispute involves the functions of the stage manager on certain productions taped at the facilities of the Employer's Videotape Division. C. Contentions of the Parties The I.A.T.S.E. contends that the disputed work tasks should be awarded exclusively to employees of the Employer who are members of or are represented by the I.A.T.S.E. for all videotape productions on the Employer's lot. The Guild's position is that the disputed work should be awarded to employees of production companies who are members of or are represented by the Guild for all videotape productions, at the Employer's facilities, produced by production com- panies signatory to a Guild collective-bargaining agreement. The Employer contends that the disputed work should be awarded to employees of the Employer represented by the I.A.T.S.E. for all productions on the Employer's lot. However, for productions on the lot by producers who are signatory to the basic guild film industry contract where two stage managers are required and where the producer insists on assigning a portion of the disputed work, including wearing a headset, to one of its employees represented by the Guild, it is the Employer's position that such assignment should be permitted. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The facts show that the Employer assigned the work to its employees who are members of or are represented by the I.A.T.S.E. The Guild demanded that the Employer take the work away from members of the I.A.T.S.E. and assign it to its members. In support of its demand, the Guild threatened a work stoppage. Based on the foregoing, and the record as a whole, we find that reasonable cause exists to believe that the Guild violated Section 8(b)(4)(D) of the Act. The parties have not agreed upon a voluntary method of settling this jurisdictional dispute. Accord- ingly, the matter is properly before the Board for determination. E. 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 all relevant factors involved. The following factors are relevant in making a determination of the dispute before us. 1. Certifications and collective-bargaining agreements The I.A.T.S.E. was certified by the Board in 1956 as the exclusive bargaining representative of certain employees, including stage managers, of KTLA, which was then owned by Paramount Television Productions, Inc., herein called Paramount . In 1957, 4a DECISIONS OF NATIONAL LABOR RELATIONS BOARD KTLA and the IAT.S.E. entered into their first collective-bargaining amt and have since entered into successive agreements. The Employer, in 1964, acquired the assets and license of Paramount, assumed the KTLA-I.A.T.S.E. collective-bargaining agreement, retained all of the Paramount employees, and continued to operate KTLA without interrup- tion. Presently, all stage managers work interchange- ably between KTLA and the Employer's Videotape Division and are represented by the I.A.T.S.E. under the cur ent KTLA-I.A.T.S.E. contract. Guild has not been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. In 1970, however, the Employer's subsidiary corporation, Films, entered an agreement with the Guild which later became the tape supplement, containing a requirement that a guild stage manager be used. In April 1973, Films signed the Guild's tape supplement, which the Guild terminated as to Films on May 23, 1973. While the Employer has no agreement with the Guild requiring that guild members be assigned stage manager work, some producers who come onto the Employer's lot for "facilities rental" are signatory to the guild tape supplement apparently requiring them to use a guild stage manager. However, since at least 1961, when those signatory producers have used the Employer's facilities, the Employer has had a verbal waiver of the Guild contract's requirement in that guild stage managers in such situations were not required to wear headsets,3 the Guild furnishing a stage manager, but only the I.A.T.S.E. stage manager wearing the headset and actually functioning as stage manager. This waiver was rescinded by the Guild in May 1973, with the cancellation of its tape supple- ment agreement with Films, thereby contributing to the jurisdictional dispute herein. 2. Employer's assignment and past practice Pursuant to its contract with the I.A.T.S.E., in productions by independent producers who are not signatories to either the guild tape supplement or guild film contract, the Employer has assigned the disputed work to an employee represented by the I.A.T.S.E. Such employee wears a headset and functions as a stage manager, and no employee represented by the Guild is involved in the videotape production. In cases where the independent producer is a signatory to the guild tape supplement, the Employer has assigned the functions of stage manager, includ- ing the wearing of the headset, to its employee represented by the I.A.T.S.E., pursuant to the Employer's collective-bargaining agreement with the I.A.TS.E. In such situations there has also been present a "guild stage manager" who does not wear a headset nor perform the duties of a stage manager. The Employer has thus far had occasion to assign the disputed work in situations involving signatories to the guild film contract only twice. During the first such production, pursuant to an agreement by the Employer, the I.A.T.S.E., the Guild, and the film company, both an I.A.T.S.E. stage manager and a guild stage manager wore headsets and functioned as stage managers. The I.A.T.S.E. stage manager was senior stage manager and exercised primary control on the stage at all times. All parties agreed, however, that this arrangement was not to be construed as precedential. In the second production by a film company signatory to the guild film agreement, the Employer utilized two I.A.T.S.E. stage managers and no guild stage managers . However, the Employer was subse- quently notified that under no circumstances would that film company use the Employer's Videotape Division facilities again unless there was at least one guild stage manager wearing a headset for the production. Clearly, as to productions involving independent producers who are not signatory to any guild agreement and producers signatory to the guild tape agreement, precedent dictates that, pursuant to the Employer's contract with the I.A.T.S.E. and pur- suant to the Guild's waiver of its requirement that an employee of the producer represented by the Guild wear a headset and function as stage manager, the disputed work continue to be assigned to employees of the Employer represented by the I.A.T.S.E. As to production involving signatories to the guild film agreement, the Employer's assignment of the disput- ed work does not provide substantial precedent. 3. Relative skills, efficiency, and economy of operations The Employer strongly favors an award to its employees represented by the I.A.T.S.E. for all productions on the Employer's lot because of their experience in performing the disputed work and the resulting efficiency and economy of operations. On the Employer's lot the I.A.T.S.E. stage manag- ers work interchangeably at the Videotape Division and KTLA. Each I.A.T.S.E. stage manager currently employed by the Employer was originally a member of the stage crew and is, therefore, thoroughly familiar with the Employer's 10-1/2-acre lot, the 3 Due to the electronic communication system utilized by the dwector in aping, it is impossible to function as a stage manager without wearing DIRECTORS GUILD OF AMERICA, INC. physical facilities, equipment, and other employees of the Employer used in videotape productions. Further, the I.A.T.S.E. stage manager assists in physically moving props, arranging lighting, and painting sets . As the work tasks and skills required in the performance of the stage managers' functions are similar to and often identical with that performed by other members of the technical crew, stagehands who are also represented by the I.A.T.S.E. may perform work normally performed by stage managers, and on occasions stagehands are upgraded to stage manag- ers and perform the same functions as permanent stage managers. The guild stage manager, on the other hand, is not a permanent employee of the Employer and is often unfamiliar with the Employer's lot facilities, equip- ment, and personnel. Additionally, the guild stage manager does not physically assist other members of the technical crew in setting up the stage or performing constructionlike functions. Nor does the guild stage manager possess the interchangeability among other members of the stage crew as does the I.A.T.S.E. stage manager. While it is, therefore, preferable to have an I.A.T.S.E. stage manager on all productions at the Employer's Videotape Division, on productions by producers signatory to the guild film contract the guild stage manager possesses certain skills and knowledge acquired in the motion picture industry and not possessed by the I.A.T.S.E. stage manager. This enables the guild manager to perform a useful and essential communications function necessary only on productions by signatories to the guild film agreement.4 Hence, greater efficiency of operations results with only a I.A.T.S.E. stage manager on all productions at the Employer's facilities except on productions by the film oriented producers signatory to the guild film contract. On such productions the addition of a guild stage manager, also wearing a headset, greatly enhances the efficiency of operations. We are, therefore, persuaded that the factors of skill, experi- ence, and efficiency and economy of operations dictate the award of the work to the Employer's own employees who are represented by the I.A.T.S.E. on all productions at the Employer's facilities except on productions by signatories to the guild film contract. 4. Loss of jobs Currently the Employer employs three permanent stage managers, all represented by the I.A.T.S.E., who work interchangeably between the KTLA 4 Film companies have only recently begun to use videotape for some of their roductiona, and, therefore, the terminology, technical equips lent, and technique of production are significantly different for production in film 49 broadcast operations and the Videotape Division. As approximately 75 percent of the productions at the Videotape Division are for producers signatory to the guild tape supplement, if the disputed work is assigned to stage managers represented by the Guild on productions by those signatory producers, the Employer would be forced to terminate two I.A.T.S.E. stage managers because their function could not be absorbed by the KTLA broadcast operation. However, the work of the I.A.T.S.E. bargaining' unit would be preserved and, in fact, increased if a portion of the disputed work is assigned, on productions by producers signatory to the guild film contract, to one stage manager represented by the Guild when the production requires two stage managers. Such an assignment permitting a guild stage manager selected and employed by a film company to wear a headset and assist the I.A.T.S.E. stage manager will result in the Employer's receiving film companies' business which is necessary to the Employer's continued operation of the Videotape Division and which has been conditioned by the film companies upon having a guild stage manager on headset. Conclusion Upon the entire record in this proceeding and after full consideration of all of the relevant factors, in particular the contractual relationship between the Employer and the I.A.T.S.E., the Employer's assign- ment of the work and past practice, the skills and experience required, the efficiency and economy of operations, and the effect upon the Employer's potential business, we conclude that the employees of the Employer who are represented by the I.A.T.S.E. are entitled to perform the work in question on all productions at the Employer's facilities, and that in addition to this award to the employees represented by the I.A.T.S.E., on productions at the Employer's facilities by signatories to the Guild Film Contract, the work is also awarded to employees represented by the Guild, and we shall determine the dispute accordingly. In making this determination, we award the work to the employees of the Employer who are represented by the I.A.T.S.E., and where specified to employees who are represented by the Guild, but not to those labor organizations or their members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the from production by vi&otape. Hence, the guild stage manager can act as a bridge between the director, primarily used to film production, and the technical crew and stage crew, geared and trained for videotape production 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees employed by Golden West Broad- casters and its wholly owned subsidiary Golden West Films, Inc., who are represented by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, are entitled to perform the functions of stage manager including wearing the headset on all videotape productions at the Golden West Videotape Division. 2. Producers signatory to the Directors Guild of America, Inc., Basic Agreement of 1968 and succes- sor agreements whose employees are currently represented by Directors Guild of America, Inc., are entitled to have one employee perform the functions of stage manager, including wearing a headset, on their productions at the Golden West Videotape Division, which productions normally require two stage managers. 3. Directors Guild of America, Inc., is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Golden West Broadcasters and its wholly owned subsidiary Gold- en West Films, Inc., Los Angeles, California, or independent producers on their productions at the rGolden West Videotape Division, to assign the above work to employees represented by Directors Guild of America, Inc. 4. Within 10 days from the date of this Decision and Determination of Dispute, Directors Guild of America, Inc., shall notify the Regional Director for Region 31, in writing, whether or not it will refrain from forcing or requiring Golden West Broadcasters and its wholly owned subsidiary Golden West Films, Inc., or independent producers on their production at the Golden West Videotape Division, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.