Columbia Broadcasting System, Inc.

COLUMBIA BROADCASTING SYSTEM, INC. Columbia Broadcasting System, Inc.' and Motion Pic- ture Film Editors Local 771, International Alliance of Theatrical Stage Employees and Movie Picture Machine Operators of the United States and Cana- da, AFL-CIO. Case 2-CA-12968 November 4, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On April 30, 1974, Administrative Law Judge Abraham H. Mailer issued the attached Decision in this proceeding.2 Thereafter, Respondent filed excep- tions and a supporting brief; the Charging Party filed an exception and a supporting brief; the General Counsel filed with the Board a copy of his brief to the Administrative Law Judge; and International Brotherhood of Electrical Workers, AFL-CIO-CLC, and its Local 1212, Parties in Interest, filed point ex- ceptions and brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Columbia Broadcasting Sys- tem, Inc., New York, New York, its officers, agents, successors and assigns, shall take the action set forth in the said recommended Order. i The name of Respondent appears as stated at the hearing We note that in their exceptions and briefs the parties refer to Respondent as CBS, Inc , formerly known as Columbia Broadcasting System, Inc However, no party has filed a motion to amend the caption of this case 2lnternational Brotherhood of Electrical Workers, AFL-CIO-CLC, and its Local 1212, and DuArt Color Corporation appeared at the hearing as Parties in Interest 7 The requests for oral argument by Respondent and International Broth- erhood of Electrical Workers, AFL-CIO-CLC, and its Local 1212 are here- by denied as the record and briefs adequately present the issues and posi- tions of the parties. DECISION 637 ABRAHAM H. MALLER, Administrative Law Judge: On June 27, 1973, the Regional Director for Region 2 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel a complaint against Columbia Broadcasting System, Inc., herein called CBS. The complaint was issued upon a charge filed on May 3, 1973, by Motion Picture Film Editors Local 771, International Alliance of Theatrical Stage Employees and Movie Picture Machine Operators of the United States and Canada, AFL-CIO, herein variously called Local 771 or IATSE. Briefly, the complaint alleged that in or about 1952, the International Brotherhood of Electrical Workers, herein called IBEW, was certified by the Board as the rep- resentative of all technicians employed by CBS, including, inter aha, film editors and cutters in New York City; that since 1952, IBEW has had a succession of collective-bar- gaining agreements with CBS covering said employees; that since about 1952, Local 1212 of IBEW, herein referred to as Local 1212, has administered the collective-bargain- ing agreements referred to above in regard to technicians employed by CBS in New York City; that since about 1958, the collective-bargaining agreements between IBEW and CBS have permitted CBS to subcontract the work per- formed in New York City by film editors on documenta- nes; that as a result of said agreements, CBS has since on or about 1958 entered into contracts with various firms whereby editing of certain documentaries has been per- formed by such subcontractors, the most recent of which was entered into between CBS and DuArt Color Corpora- tion, herein called DuArt; that in accordance with such subcontracting agreements, CBS has paid the subcontrac- tor a flat fee and has reimbursed the subcontractor for all actual and out-of-pocket expenses including, inter alia, all costs directly related to the persons placed on the subcontractor's payroll for CBS as documentary film edi- tors; that said documentary film editors work at the prem- ises of CBS, using CBS' equipment, work under the direc- tion and control of CBS, and perform their work in accor- dance with instructions they receive from supervisors of CBS, and their hire and tenure of employment is subject to the control of CBS; that since on or about 1958 and con- tinuing to date, documentary film editors and cutters on the payroll of the various subcontractors in New York City, but under the direction and control of CBS, are and have been members of, or represented by, Local 771; that the most recent agreement between CBS and IBEW con- tains a provision to the effect that the work of editing and cutting motion picture film in New York City and docu- mentaries may be subcontracted by CBS where it is neces- sary to do so in the judgment of CBS, but is limited to a period until September 30, 1974; that at all times material, CBS has participated in collective-bargaining negotiations concerning the wages, hours and other working conditions of the documentary film editors and cutters in New York City; that CBS and DuArt are co-employers of the docu- mentary film editors; that said documentary film editors constitute an appropriate unit for collective bargaining; that on or about April 30, 1973, Local 771 requested CBS 214 NLRB No. 123 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain with it, but CBS has refused to do so; that the most recent collective-bargaining agreement between CBS and IBEW contains a provision requiring membership in IBEW as a condition of employment and that in April 1973, CBS informed the documentary film editors that ef- fective October 1, 1974, said documentary film editors and cutters would be employed under terms of said contract with IBEW which requires membership in IBEW as a con- dition of employment. The foregoing acts and conduct of CBS are alleged to be in violation of Section 8(a)(1), (2), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, CBS denied any violations of the Act. Pursuant to notice, a hearing was held before me at New York, New York, on September 4, 5, 12, 13, and October 15 through 19, 1973. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument and to file briefs with me. Briefs were filed on or before Janu- ary 14, 1974, by the General Counsel, CBS, Local 771, and by IBEW. Upon consideration of the entire record and the briefs, and upon my observation of each of the witnesses I make the following: 111. ISSUES BEFORE THE BOARD 1. Did the Certification of IBEW in 1952 intend to in- clude documentary film editors. 2. If the Board's Certification of 1952 intended to in- clude documentary film editors , did the subsequent course of collective bargaining between the various parties consti- tute an agreement by the parties to amend the Certifica- tion. 3. Is CBS the employer of the documentary film editors who are members of and are represented by Local 771. 4. Do the documentary film editors , assistant editors, li- brarians and expediters constitute a separate unit for bar- gaining purposes. 5. Has CBS recognized Local 771 as the collective bar- gaining representative of the documentary film editors, as- sistant editors, librarians and expediters. 6. If CBS has recognized Local 771 as the collective bar- gaining representative of the documentary film editors,' may CBS now refuse to recognize and bargain with Local 771. 7. If the documentary film editors constitute a unit sepa- rate from the unit represented by IBEW, is the attempt by CBS to accrete these employees to the IBEW unit a viola- tion of Section 8(a)(2) of the Act. FINDINGS OF FACT I. THE BUSINESS OF CBS CBS is, and has been at all times material herein, a cor- poration duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, CBS has been engaged in radio and television net- work transmission in various states of the United States, and at all times material herein, owned and operated radio and television stations, under license issued by the Federal Communications Commission in various states of the Unit- ed States, including Station WCBS-TV located in the City and State of New York. During the year preceding the filing of the complaint, which period is representative of its operations generally, CBS, in the course and conduct of its operations, derived gross revenues therefrom in excess of $1,000,000. Accordingly, I find and conclude that CBS is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. It. THE LABOR ORGANIZATIONS INVOLVED Local 771 is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Local 1212 is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IBEW is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Introduction The problem presented in the instant case is the result of the growth and development of the television broadcasting industry. Programs which were not envisaged when the in- dustry was in its infancy were created, enlarged, and ex- panded. The emergence of new types of programs required the application of innovative, sophisticated techniques and procedures. Thus, in the early days of television broadcasting, the networks did not produce their own news shows. Instead, CBS purchased newsreels produced by Telenews, a subsid- iary of Hearst Metrotone News of the Day. According to Palmer Williams, Senior Producer of CBS, "[t]he hard news department became fully founded . . . in about 1953 or possibly at the latter part of 1952, and they [CBS] stopped buying their material from Telenews." 2. The documentaries The first documentary produced by CBS was the "See It Now" show created and developed by Edward R. Murrow and Fred W. Friendly in 1951. To produce the show, Palm- er Williams, its producer, contracted with Hearst News for camera crews, sound men, film editors, and even space to work in. The film editors were represented by Local 771. In 1954, the contract with Hearst News was cancelled and CBS bought its own equipment and made arrangements 1 The term "documentary film editors" as used herein embraces assistant editors, librarians, and expediters represented by Local 771 COLUMBIA BROADCASTING SYSTEM, INC. with a company called Information Productions (later known as U.S. Productions). The employees of Hearst News who had been working on the "See It Now" show were placed by CBS on the payroll of Information Produc- tions and continued to work on the show. Sometime later, the cameramen and sound men were transferred to the CBS payroll directly, but the film editors and assistant film editors remained on the payroll of Information Produc- tions. The "See It Now" program ran for approximately 7 years, during which time some 200 shows were exhibited. The public acceptance of the "See It Now" show led to the production of other documentary films. A great number of documentary films have been produced by CBS and are still being produced today. Documentaries were originally one-half hour in length. Later, they were increased to one hour shows, and on some occasions ran one hour and a half. Commenting on the effect of the documentary pro- grams developed by CBS, Senior Director Williams agreed that the documentary was something that "evolved," was _"unique" and "that CBS developed a staff including IATSE film editors whose unique skills contributed greatly to the development of their prestige." The various witnesses did not agree as to a precise defin- ition of a documentary. Perhaps the important thing in the context of the issues is to distinguish between a documen- tary and what the parties referred to as "hard news." Thus, Charles Van Bergen, Manager of Film Production for CBS, agreed that a reasonable distinction between a documenta- ry and hard news is as follows: a documentary is a compilation in depth of a story which is condensed from a large footage of film to make a program. . .. a hard news story is one which has significant impact value as of the time it is shown because of the recency of this particular development and therefore is of interest, especially for the moment. Marshall Davidson, Vice President of Operations, CBS News, testified that it is almost impossible to describe what is news and what is a documentary, because no two people have the same opinion or definition or agreement on what news and documentary is. However, he distinguished be- tween documentaries and hard news as follows: Defining news and documentary, basically documen- taries are programs of a half hour or an hour in length devoted to single subjects. . . . It is something that is worked on for a week, and a month at a time . Getting the entire subject together, it could be Justice Black, which is one that was discussed, TV journalism, which was edited for I guess three or four months. Against this, we have our specials that we put on nightly on the Watergate hearings These to me are not documentaries, because they are done within 24 hours. 60 Minutes is defined as news by the News Division, because it is of a basic format, a magazine format, 639 rather than a single subject format. All these-what we call strip shows, which are shows that are on ev- eryday, Cronkite News, Morning News, Saturday News, Sunday News are called news and not docu- mentaries, if we ever have to get into that definition. As indicated by Vice President Davidson's definitions, there are in addition to hard news and documentaries, a class of shows called news specials with which we are not concerned in the instant proceeding.2 It should also be not- ed that, and the witnesses appear to agree upon this fact, there is a gray area consisting of some shows which fall between documentaries and hard news. Also, documenta- ries are of various types, including religious documentaries, travel documentaries, etc. This much is clear: Documentaries often take months to produce. In preparing them, film shot long before the con- ception of the documentary is used, as on occasion are old still pictures, as well as film shot in contemplation of the documentary. Old as well as newly prepared audio tapes are used. In planning the documentary, these are woven together to prepare a show dealing with a particular sub- ject, whether it be a historical or a currently controversial or informative subject. In contrast, news programs deal with current events of immediate interest to viewers. Speed in the preparation of the news show is of paramount im- portance, as in the case of newspapers trying to score a "beat" in the publication of a news story. These differences, in turn, lead to the employment of different techniques by documentary film editors vis-a-vis those employed by news film editors. Documentary film editors use what is known as "the double system." Thus, unlike news film editors, documentary film editors do not work directly with the film itself. Rather, to avoid damag- ing the film, the film is copied on magnetic tape which, in turn, is edited and synchronized with the audio. Back- ground audio, audio mix,' narration, and optical effects are added, using sophisticated equipment designed for that purpose. On the other hand, the speed with which a news story must be aired does not allow time for converting the film shot by the news photographer into magnetic tape. There- fore, the news editors use "the single system," i.e., they work directly on the film, editing and splicing the film in accordance with the directions of the news editor. Of ne- cessity, this requires greater care in handling the film as compared to handling magnetic tape which is, in effect, a duplicate of the film. The documentary film editors and assistant editors are members of Local 771. The news film editors are members of Local 1212 IBEW. Richard Kraut, Film Operations Manager, is in general charge of the Local 771 editors;4 Charles Van Bergen, Manager of Film Production, is in charge of the Local 1212 editors. 2 Senior Producer Williams agreed that a definition of a news special is a news story telecast within a fairly contemporaneous period from the time that it occurs except that it is longer than an ordinary news story telecast say on the Cronkite news " 3 Audio mix is the blending of two or more sound tapes Including assistant editors, librarian and expediter 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Vice President Davidson, prior to 1966, documentaries were not handled by the News Division, but by another department known as public affairs. Since 1966, they have been handled by the News Division. Each docu- mentary produced by CBS is treated as a separate entity in the charge of its producer. Each documentary is assigned a separate budget by CBS. As previously noted, from the inception and for many years thereafter, documentaries were worked on only by members of Local 771, while film editors who were members of Local 1212 IBEW work on hard news stories. Although, in recent years, CBS has as- signed members of Local 1212 to work on certain docu- mentaries , Local 771 editors have not been used on hard news programs. 3. The certification and the bargaining history On January 31, 1952, pursuant to a Decision and Direc- tion of Election issued by the Board on December 17, 1951, in Case 13-RC-1888,5 an election was conducted among certain employees of CBS. On February 14, 1952, the Board issued a certification pursuant to which IBEW was certified as the exclusive representative of a unit of the following employees: All technicians employed in the Employer 's Technical Operations Departments and the Engineering Re- search and Development Department , in New York City and throughout the United States, including tech- nicians employed in the laboratory in the General En- gineering Department, draftsmen and machinists in the Engineering Research and Development Depart- ment, and motion picture cameramen and film editors and cutters in New York City, but excluding film edi- tors and cutters at the Employer's Los Angeles, Cali- fornia, establishments, sound effects employees em- ployed at Chicago, Illinois, turntable operators em- ployed at Chicago, Illinois, and St. Louis, Missouri, lighting directors and special visual effects employees in New York City and the lighting director in Los Angeles, California, engineers in the General Engi- neering and Engineering Research and Development Departments , stage hands, manual or mechanical cueing and titling employees, guards, watchmen, and all supervisors as defined in the Act. At no time since that certification was issued has it been amended or revoked, nor has IBEW been decertified as the representative of the employees listed above. Although documentary film editors fall within the gener- ic class of film editors encompassed in the certified unit, IBEW has never bargained for the documentary film edi- tors.' In the 1958 negotiations for an agreement between CBS and IBEW, CBS proposed the inclusion of a clause giving it the right to subcontract the editing of documenta- ries. As a result, the following provision was included in 5 Reported at 97 NLRB 566 6 As previously noted, the term "documentary film editors" as used herein embraces assistant editors, librarians, and expediters represented by Local 771 the agreement then negotiated and was inserted in every agreement between IBEW and CBS until the 1972 con- tract: The work of editing and cutting motion picture film in New York City may be sub-contracted where, in the judgment of CBS, it is necessary to do so. This sub- contracting privilege does not include editing and cut- ting of news films, as distinguished from documenta- ries, and is limited to editing and cutting on programs entirely on motion picture film and those programs predominantly on motion picture film but containing some live and/or video tape elements. In any such case, the sub-contracting privilege extends only to the film portions and not to video tape. Conversely, Local 771 entered into successive written collective-bargaining agreements with subcontractors Ken- co and Douglas-Lester on behalf of the documentary film editors.7 Although these contracts were between the sub- contractors and Local 771, the subcontractors signed such agreements only after securing the acquiescence of CBS. As Senior Director Palmer Williams, who participated in these conferences, and in discussions with Local 771's rep- resentative, put it "we won a couple and lost a couple." The record also discloses that CBS notified Local 771 of the hiring of, and wage increases given to, documentary editors, as well as of the change from one subcontractor to another In 1972, CBS and IBEW entered into a contract which, although it contained the provision giving CBS the right to subcontract the editing of documentary films, limited that right to the period beginning October 1, 1972 and ending September 30, 1974 The agreement contains a union se- curity provision, under which the documentary film editors would have to become members of IBEW in order to retain their employment with CBS. It is the provision limiting the right of CBS to subcontract the editing of documentary films, together with the union security provision, which has precipitated the instant proceeding. On April 30, 1973, Local 771 sent CBS a telegram re- questing negotiations for a collective-bargaining agree- ment. Thomas G. Holland, Jr., Assistant Director, Indus- trial Relations, of CBS, orally rejected the request. 4. The relationship of the documentary film editors to CBS As previously noted, at the outset CBS produced its do- cumentaries by the use of camera crews, sound men and film editors employed by Telenews, a subsidiary of Hearst News In 1954, the contract with Hearst News was can- celled, and the film editors were placed by CBS on the DuArt refused to sign such an agreement because it did not wish to become involved in any labor problems of CBS, as, for example, a strike by Local 771 against CBS However, DuArt followed the terms of the contract between Local 771 and Douglas-Lester with regard to rates , holidays, vaca- tions, etc When Maurice Murad, shop steward for Local 771, complained to CBS Vice President Davidson that DuArt had not signed a contract, Davidson expressed surprise and said "We have always signed the basic agreement I don't understand that" He added that he would call the Busi- ness Affairs Department and instruct them to have the contract signed COLUMBIA BROADCASTING SYSTEM, INC. payroll of Information Productions and continued to work on the CBS documentaries. The documentary film editors remained on the payroll of Information Productions from 1954 to 1959.8 Between 1959 and 1967, documentary film editors were placed on the payroll of Kenco Films, Inc. Between 1967 and 1970, the documentary film editors ap- peared on the payroll of Douglas-Lester Productions, Inc., and since 1970 and continuing to the present time, the do- cumentary film editors were on the payroll of DuArt Color Corporation. Although documentary film editors appeared on the payrolls of these purported subcontractors, it is clear from the record that they were not employees of these subcontractors. All that these subcontractors did vis-a-vis the documentary film editors was to pay their salaries, make the various payroll deductions, and arrange and pay for various insurance coverages such as workmen's com- pensation, unemployment, liability, and disability, for all of which they were reimbursed by CBS together with a service charge which, in the case of DuArt, at one time amounted to a $110 per week, later increased to $120. As a matter of fact, although the subcontractors issued the checks, they did not even hand them to the documentary film editors; rather, they were picked up by a messenger from CBS and distributed by CBS to the documentary film editors who were working at the premises of CBS. Indeed, Stewart Deitch, Financial Vice President of DuArt Film Laboratories, the parent of DuArt Color Corporation, tes- tified: We're doing this strictly as an aid to CBS; we're not really their employer, these people. According to Deitch, there was no monetary profit for DuArt in this arrangement, and it was entered into as an accommodation to CBS who is one of DuArt's major cus- tomers for the developing and printing of motion picture film. He testified further that when a representative of Lo- cal 771 came to him asking for increased pension and wel- fare payments, "I indicated that we would not pay it unless we got approval from CBS since they were reimbursing us for all out of pocket expenses." He then communicated with Robert Burstein, Manager of Business Affairs of CBS, who approved the increases. Similarly, Stanley D. Plotnick, Deitch's predecessor, testified that DuArt does not do film editing, nor does it employ any editors; and that CBS fixed the rates of pay and he cleared all wage increases given to the documentary film editors with Burstein. Nor have the documentary film editors worked at the premises of any of the subcontractors.9 Conversely, CBS hired the documentary film editors, promoted assistant editors to editors, fixed their salaries, granted or rejected requests for pay increases over the union scale, and kept and okayed their timecards which were sent to the subcontractors for computation of the paychecks. As previously noted, the documentary film edi- tors worked at the premises of CBS, under the direction, supervision, and control of producers and directors of 8 In 1958, the Company changed its name to U S Productions 9 The record shows that only one documentary film editor worked for a short period at DuArt's premises 641 CBS. In addition, grievances of the documentary film edi- tors weie handled directly with officials of CBS and not with the subcontractors. Thus, Shop Steward Maurice Mu- rad handled grievances directly with Manager of Film Pro- duction Kraut, Assistant Director of Industrial Relations McCarthy, Producer Gene Deports, and Vice President Davidson. Manifestly, there must be a close intellectual and work- ing relationship between the producer of a documentary and its film editor who participates in the planning of the documentary and who must understand and put into effect the aims and views of the producer and the nuances which the latter desires. The greater demands upon the documen- tary film editors' professional and artistic skills are reflect- ed in the fact that documentary film editors receive higher salaries than do news editors. In 1970, CBS changed its method of employing and pay- ing documentary film editors. All, except Maurice Murad who chose to remain as a staff documentary editor, were placed on free-lance basis, i.e., they were hired for each particular documentary and were paid only when actually working on that documentary. The purpose of the change, according to Vice President Davidson, was to render inop- erative the seniority provision of the union contract of Lo- cal 771 editors. At that time, they received severance pay from CBS. Thus, Mtli Bonsignori received $9,000, based on her 17 years of work for CBS, plus 4 weeks' vacation pay. 10 Also, they were granted a higher scale than was Murad. As free-lance editors, they were free, when not actually work- ing on a CBS documentary, to work for other networks, and on one occasion Bonsignort worked on a documentary for ABC. Free-lance editors receive holiday benefits, but not vacations. Pension and welfare contributions are made for them to the union fund. B. Conclusions 1. The effect of the certification The threshold issue in this case is whether the certifica- tion of IBEW was intended to include documentary film editors. It is difficult to conclude that such was the intent of the certification, as television broadcasting was then an infant industry and there were no documentary film editors employed by CBS. Indeed, while the record is somewhat vague on the subject, there is some doubt whether the certi- fication was intended to include news film editors, as CBS did not then employ news film editors as that craft is con- stituted today. To the extent that CBS then may have em- ployed "film editors and cutters," the record does not re- veal precisely the duties of such employees. It is clear, how- ever, that the employment of the documentary film editors with whom we are concerned in this case was not even contemplated when the certification was issued. The issue then becomes whether such documentary film editors when later hired by CBS, accreted to the unit. Perti- nent in this regard is the bargaining history between the parties. While IBEW actively represented the news film 10 Severance pay as provided in Local 77I's collective- bargaining agree- ment was computed on the basis of one week's pay for each year of employ- ment 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD editors, it has never represented the documentary film edi- tors, although, as IBEW's counsel conceded, "1212 un- doubtedly knew there were some film editors working at CBS at the time [1954]." Rather, CBS and IBEW from and after 1958 entered into collective-bargaining agreements which gave CBS the privilege of engaging in subcontract- ing for the services of documentary film editors. This was not subcontracting in the true sense of that term. It was a fiction, as the record convincingly demonstrates. And CBS continued to go through the form of subcontracting, and IBEW closed its eyes to the fictional character of the sub- contracting by continuing to grant CBS the privilege of subcontracting in every collective-bargaining agreement thereafter until 1973. Fifteen years later, IBEW first sought to claim that the documentary film editors accreted to the unit by demanding a provision which would end the sub- contracting privilege on September 30, 1974. Conversely, the documentary film editors have at all times been members of, and actively represented by, Local 771, with the full knowledge of CBS, who participated in the negotiations for collective-bargaining agreements be- tween Local 771 and the alleged subcontractors, and noti- fied Local 771 of changes in status and salaries of the do- cumentary film editors. In these circumstances, I conclude that IBEW has been guilty of laches in seeking at this late date to accrete the documentary film editors to the unit. Cf. Ware Laborato- ries, Inc., 98 NLRB 1141, 1142 (1952); American Radiator and Standard Sanitary Corporation, 119 NLRB 204, 206 (1958); General Electric Company, 160 NLRB 504, 506 (1966); General Electric Company, 144 NLRB 88, 91 (1962). I further find that by their conduct both CBS and IBEW have waived the inclusion of the documentary film editors in the unit. Cf. National Association of Broadcast Engineers, 105 NLRB 355, 363 (1953); General Electric Co., 180 NLRB 1094, 1095 (1969). 2. The documentary film editors as employees of CBS It is clear from the record that, as previously noted, the documentary film editors are employees of CBS. All of the indicia of an employer-employee relationship are present: The documentary film editors are hired and promoted by CBS at salaries specified by Local 771's collective-bargain- ing contracts, grants or rejects requests for pay increases in excess of the contract, keeps their timecards and handles their grievances. They work at the premises of CBS under the direction, supervision and control of producers and other officials of CBS. The employer-employee relation- ship was acknowledged by CBS when Bonsignori was transferred from staff to free-lance status. At that time (in 1970) she was given 17 years' severance pay. Had she been considered an employee of Douglas-Lester (on whose pay- roll she then appeared) she would have been entitled to no more than 2 years' severance pay. Conversely, they were not employees of DuArt or of the other subcontractors, as freely acknowledged by DuArt's financial vice president, except possibly to the extent that, as defined by Section 2(2) of the Act, "[t]he term 'employ- er' includes any person acting as an agent of an employer, directly or indirectly . . " The bargaining history regarding the documentary film editors confirms the conclusion that they were and are em- ployees of CBS. Thus, although the various subcontractors (except DuArt) executed collective-bargaining agreements with Local 771, they did so only with the acquiescence, and upon the direction, of CBS who was, in fact, paying the salaries and abiding by the terms and working conditions prescribed by the collective-bargaining agreement. Respondent contends that the free-lance status of the documentary film editors raises a question whether they were independent contractors, rather than employees with- in the meaning of the Act. Respondent relies upon Radio City Music Hall Corp v. United States, 135 F.2d 715 (C.A. 2, 1943), and Strand Art Theatre, Inc., 184 NLRB 667 (1970). I find these cases inapposite . They involved enter- tainers who created their own acts and had the right to control the manner and means of performing the work. In Strand, the only direction they received from the theater operator related to the length and number of scenes and scantiness of costumes as measured by local regulations. Apart from supplying the theater stage, music and lights, the operator played no part in their performance. In Radio City, the theater operator did somewhat more : He some- times put a song of his own choosing into the act, at times amplified or reduced the volume of a singer's voice, direct- ed the staging according to his requirements, fixed the times for rehearsals, the number of performances, required promptness in attendance, and prescribed the order of dances and songs. Sometimes he insisted on leaving out parts of the dialogue or other features when he thought them unsuitable for his audience. In the instant case, the documentary film editors cannot be considered to be independent contractors. CBS main- tains a daily record of their working time, which is sent to the "subcontractor" for the computation of their pay. They work under the general direction of Film Operations Man- ager Kraut and under the specific directions of the individ- ual producer who is in charge of the particular documenta- ry. While the documentary film editors call upon their ar- tistic and technical skills in making the documentary, they do so only to meet the demands of the producer who has envisaged the documentary and the message he seeks to put across. It is he who has the complete responsibility of creating, developing and putting the documentary into its final form for showing. In this context, the documentary film editor is merely an artisan, albeit an artistic one. Un- der no circumstances can the documentary film editor sub- stitute his judgment as to content, detail or effect for that of the director, or act contrary to his direction. In sum, in all respects the documentary film editor must satisfy the demands of the producer. I therefore find and conclude that the documentary film editors, though free-lance, are employees of CBS and not independent contractors. N.L.R.B. v. United Insurance Co., 390 U.S. 254 ( 1968). 3. The appropriate unit The question of what constitutes an appropriate unit may not be divorced from the history of collective bargain- ing in this case. Thus, if we were to consider what would be an appropriate unit absent the bargaining history, it might COLUMBIA BROADCASTING SYSTEM, INC. be concluded that a unit encompassing all film editors would be appropriate, despite the differences of functions and skills. However, the Board is not called upon to make an initial unit determination. Much water has passed under the bridge since the initial unit determination was made more than 20 years ago. Relationships have evolved and been established since that time. These relationships can- not now be ignored. "Thus, the Board has long held that it will not disturb an established bargaining relationship un- less required to do so by the dictates of the Act or other compelling circumstances." (The Great Atlantic & Pacific Tea Co, Inc., 153 NLRB 1549, 1550 (1965) ). See, also, West Virginia Pulp and Paper Co., 120 NLRB 1281, 1284 (1958); West Virginia Pulp and Paper Company, 122 NLRB 738, 746, fn. 12 (1958); The Murray Company of Texas, Inc., 107 NLRB 1571, 1573 (1954). The bargaining history indicates beyond doubt that CBS has recognized Local 771 as the exclusive bargaining repre- sentative of a unit consisting of documentary film editors, assistant editors, librarians, and expediters for over 20 years. As the Board said in General Electric Co., 180 NLRB 1094, 1095, "the record establishes a controlling history of ... bargaining . . . in which the Union has been recog- nized as the exclusive bargaining agent." To hold that these employees did not constitute an appropriate unit repre- sented by Local 771 would be to ignore "the realities of the relationship between the parties." (Ibid.) The evidence concerning the librarian of documentary films is rather sparse. All that appears is that CBS does employ such a librarian," who works in Fort Lee, New Jersey, and services the documentary film editors and as- sistant editors. Presumably, his being stationed in New Jer- sey, rather than in New York City, is dictated by storage considerations. At any rate, such librarians have been treated in exactly the same manner as the editors, and for historical reasons should be included in the unit. The same is true with regard to expediters. At present, there is only one expediter, Ray Manookian. He works on documenta- nes under the Local 771 contract, and appears regularly on the DuArt payroll. Vice President Davidson testified that he considered the expediter to be part of management, but no evidence was offered to substantiate that bare assertion. In addition to the fact that Manookian has been treated by CBS as a member of the documentary unit, it appears from the record that he receives substantially less pay than the documentary film editors, a circumstance which militates against the conclusion that he is part of management. I therefore find and conclude that a unit consisting of documentary film editors, assistant editors, librarians and expediters constitutes an appropriate unit for collective bargaining within the meaning of the Act. This conclusion is not affected by the fact that in recent years CBS has assigned some news film editors to work on certain documentaries. CBS did not thereby effectuate any real integration of the units; documentary film editors were not assigned to do hard news editing. More importantly, despite such assignments from time to time, CBS continued to recognize the dichotomy between Local 771 editors and 11 Listed on the payroll records as "Archives " 643 IBEW editors. Each continued to be separately supervised; the pay differential continued to be observed; each unit was governed by a different collective-bargaining contract; and the documentary film editors, assistant editors, librari- an and expediter continued on the payrolls of the various "subcontractors." 4. The violation of Section 8(a)(2) of the Act The foregoing discussion compels the conclusion that when CBS entered into its most recent contract with IBEW, in which it agreed to cease its practice of subcon- tracting for the work of documentary film editors, it ren- dered unlawful assistance to IBEW, in violation of Section 8(a)(2) of the Act. The effect of the foregoing, when cou- pled with the union security clause, was to compel the Lo- cal 771 editors, assistant editors, librarian and expediter to become members of IBEW after September 30, 1974, if they wanted to retain theirjobs,12 despite the fact that they had never been represented by IBEW, were separately rep- resented by Local 771, and had been recognized and dealt with by CBS as a separate unit. Dancker & Sellew, Inc., 140 NLRB 824, 826 (1963); Food Employers Council, Inc., 163 NLRB 426, 428-429 (1967). I therefore find and conclude that CBS violated Section 8(a)(2) and (1) of the Act when it entered into a collective- bargaining agreement with IBEW, containing a union se- curity clause, in which it agreed to cease subcontracting for the services of documentary film editors. 5. The violation of Section 8(a)(5) The effect of the most recent collective-bargaining agree- ment with IBEW was to withdraw arbitrarily recognition of Local 771 as the exclusive bargaining representative of the documentary unit. In so doing, CBS disregarded the fact that through the agency of its various "subcontrac- tors" it had for many years entered into collective-bargain- ing contracts with Local 771. Such conduct is patently vio- lative of Section 8(a)(5) and (1) of the Act. In addition, CBS further violated Section 8(a)(5) and (1) of the Act when, on April 30, 1973, Local 771, faced with the consequences of the foregoing action by CBS, request- ed negotiations for a contract, and CBS rejected the re- quest. Despite the fact that Local 771 has admittedly repre- sented the documentary unit for many years, Respondent and IBEW contend that the allegation that CBS failed and refused to bargain with Local 771 must be dismissed be- cause the General Counsel failed to prove that Local 771 represented a majority in the documentary unit. Both rely upon Ramada Inns, Inc., 171 NLRB 1060 (1968). The facts of that case are entirely dissimilar from those of the instant case. However, the Board in Ramada set forth the applica- ble rule which supports the conclusion that proof of Local 12 That the natural and obvious effect of the collective-bargaining con- tract with 1BEW was to force the Local 771 editors to join IBEW is further supported by the testimony of Murad of his conversation with Vice Presi- dent Davidson in April 1973, when the latter told Murad of the new subcon- tracting provision and "that he would like to make me an offer contingent on one thing, and that is that I affiliate with Local 1212 of the IBEW." 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 771's majority was properly dispensed with. In Ramada, the Board said: The Board's presumption principles relied upon by the General Counsel, which dispense with the normal re- quirement of independent affirmative proof of majon- ty as of the time of a bargaining demand, are not properly applicable to a case of this sort. They have been limited to situations where the refusal to bargain is with a Board certified union or with an incumbent union which has theretofore achieved a bargaining status evidenced by a collective-bargaining agreement, or, at least, by prior recognition. (171 NLRB at 1062, footnotes omitted) In all the years of its dealing with Local 771, CBS never raised the issue of the Union's majority or expressed any doubt thereof. To the contrary, by its course of conduct, CBS recognized Local 771 as the exclusive bargaining rep- resentative of the documentary unit and entered into col- lective-bargaining agreements with that Union through the instrumentality of its "subcontractors" who were, in fact, its agents for that purpose. And it abided by the terms of those contracts. To hold now after its conduct during all these years, that CBS had not recognized and entered into collective-bargaining contracts with Local 771 would be to look only at the form and disregard substance. I therefore conclude that the presumption of Local 771's majority was properly relied upon by the General Counsel and that proof of Local 771's majority was unnecessary in the ab- sence of evidence that Local 771 had lost its majority. I therefore find and conclude that CBS violated Section 8(a)(5) and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section IV, above, occurring in connection with the operations of the Respondent set forth in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2), (5) and (I) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully withdrew recognition from Local 771 and refused to bargain with that Union in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to recognize Lo- cal 771 as the exclusive representative of all its employees in the appropriate unit described above and, upon request, to bargain in good faith with Local 771 as the exclusive representative of said employees with regard to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment. By requiring CBS to recognize and bargain, upon request, with Local 771, the Board will once and for all destroy the fiction of subcontracting and render nugatory the efforts of CBS and IBEW to force the documentary film editors into IBEW, thereby remedying the unlawful assistance which CBS gave to IBEW, in violation of Sec- tion 8(a)(2) and (1) of the Act. CONCLUSIONS OF LAW 1. CBS is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 771, Local 1212 of IBEW, and IBEW are labor organizations within the meaning of Section 2(5) of the Act. 3. The unit set forth in section IV above of this Deci- sion constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 771 is, and at all times material herein has been, the exclusive representative of the employees of the afore- said appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. The members of said appropriate unit have been at all times material herein and are employees of CBS. 6. By entering into a collective-bargaining agreement with IBEW in which it agreed to terminate its practice of subcontracting for the services of documentary film edi- tors, CBS has unlawfully granted assistance to Local 1212, and thereby engaged in an unfair labor practice in viola- tion of Section 8(a)(2) and (1) of the Act. 7. By withdrawing recognition from Local 771 as the exclusive bargaining representative of the employees in the said appropriate unit and by refusing to bargain with Local 771 as such exclusive representative, CBS has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Columbia Broadcasting System, Inc., its officers, agents, successors and assigns , shall: 1. Cease and desist from: (a) Failing and refusing to recognize and, upon request, bargain collectively with Motion Picture Film Editors Lo- cal 771, International Alliance of Theatrical Stage Employ- 13 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes COLUMBIA BROADCASTING SYSTEM, INC ees and Movie Picture Machine Operators of the United States and Canada, AFL-CIO, as the exclusive representa- tive of its employees in the appropriate unit described be- low with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All documentary film editors, assistant editors, librari- ans and expediters, excluding office clerical employ- ees, guards, and supervisors as defined in the Act. (b) Assisting Local 1212 International Brotherhood of Electrical Workers, AFL-CIO-CLC, and/or International Brotherhood of Electrical Workers, AFL-CIO-CLC, by forcing or compelling members of the appropriate unit de- scribed above to become members of said unions, and thereby discouraging membership in Local 771. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights to self-organization, to form, loin, or assist any labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the provi- so to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Recognize and, upon request, bargain collectively with Motion Picture Film Editors Local 771, International Alliance of Theatrical Stage Employees and Movie Picture Machine Operators of the United States and Canada, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its offices in New York, New York, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized repre- sentative of the Respondent, shall be posted by the Re- spondent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days of the receipt of this Decision, what steps Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 645 WE WILL NOT fail or refuse to recognize and, upon request, bargain collectively with Motion Picture Film Editors Local 771, International Alliance of Theatrical Stage Employees and Movie Picture Machine Opera- tors of the United States and Canada, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All documentary film editors, assistant editors, librari- ans and expediters, excluding office clerical employ- ees, guards, and supervisors as defined in the Act. WE WILL NOT assist Local 1212, International of Electrical Workers, AFL-CIO-CLC, and/or Interna- tional Brotherhood of Electrical Workers, AFL-CIO- CLC, by forcing or compelling members of the appro- priate unit described above to become members of said Unions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization , to form, loin, or as- sist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. WE WILL recognize and, upon request , bargain col- lectively with Motion Picture Film Editors Local 771, International Alliance of Theatrical Stage Employees and Movie Picture Machine Operators of the United States and Canada , AFL-CIO, as the exclusive repre- sentative of our employees in the appropriate unit de- scribed above with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. COLUMBIA BROADCASTING SYS- TEM, INC. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"