Metromedia, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metromedia, Inc.-KMBC-TV and International Photographers of the Motion Picture Industry, Local 666, IATSE (AFL-CIO). Case 17-CA-6831 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On October 18, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, General Counsel and Charg- ing Party filed exceptions and supporting briefs, the Party in Interestl filed a limited cross-exception and a brief in support thereof and in all other respects in support of the Administrative Law Judge's Decision, and Respondent 2 filed a brief in support of the Administrative Law Judge's Decision. 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 considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The relevant facts are, briefly, as follows: Respondent is engaged in commercial television broadcasting and operates, among others, Station KMBC-TV in Kansas City, Missouri. On April 16, 1974, the Charging Party, hereinafter called IATSE, was certified as the exclusive bargaining representa- tive of Respondent's news department motion picture cameramen.3 Thereafter, on August 5, 1974, Respondent and IATSE held their first bargaining session, but no specific proposals were made by either party. On November 14, 1974, the parties held another bargain- ing session at which Respondent proposed a contract including, inter alia, the following clauses, which read in pertinent part: 4 Local Union 1259, International Brotherhood of Electrical Workers (AFLCIO), appeared at the hearing as Party in Interest. 2 Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 3 Typically, news department cameramen spend approximately 60 percent of their time away from the television station gathering news, usually accompanied by a reporter. For this purpose, the cameramen are supplied with company cars so they can look for newsworthy items and monitor police and fire department communications. Although generally accompanied by a reporter, cameramen also work independently and determine for themselves the composition, angles, and length of a particular scene. Furthermore, in certain "spot news" items, such as fires or wrecks, which require immediate coverage, the cameraman's job becomes somewhat like that of a photojournalist since he alone determines the content and composition of a particular scene. 232 NLRB No. 76 Section 5.01 Duties of Cameramen News Cameramen may be assigned by the Station to operate portable video cameras and associated equipment. Section 5.02 Performance of Cameramen's Work by Others Nothing herein shall be deemed to prohibit the performance of any of the work of Cameramen, as set forth in Section 5.01, by persons who are not Cameramen and therefore, not covered by the terms of this Agreement. Also at that meeting Respondent and IATSE first discussed the latter's jurisdiction over the minicam, a new portable video camera being introduced for widespread use throughout the television industry. 5 Arthur Beeman, principal negotiator for IATSE at the first bargaining sessions, testified that he agreed to section 5.01, but not to section 5.02. He also stated that in his opinion Respondent, by proposing section 5.01, gave exclusive jurisdiction over minicams to IATSE. On December 10, 1974, another bargaining session was held but there was no discussion of the minicam issue. Between December 1974 and June 1975,6 a hiatus in bargaining occurred, in part because Beeman was ill for a substantial period of time. Thereafter, on June 4, the parties resumed negotia- tions with Bernard Mamet as chief negotiator for IATSE. At the June 4 meeting, Robert Pantell, Respon- dent's chief labor negotiator, told Mamet that Respondent had negotiated a new contract with the Party in Interest, hereinafter called the IBEW, which represented all Respondent's engineers.7 Pantell went on to state that the new IBEW contract provided for the engineers to have exclusive jurisdiction over the operation of minicams and that, as a consequence, the issue of minicams was outside the realm of bargaining between Respondent and IATSE. Mamet responded that Respondent's action violated I Contrary to the Administrative Law Judge's finding, the record indicates clauses 5.01 and 5.02 were proposed at the November 14, 1974, bargaining session rather than the first meeting in August. I Although the minicam utilizes tape instead of film, it is the functional equivalent of the film camera which has been operated almost exclusively by cameramen in the IATSE bargaining unit. Like the television camera, however, the minicam can also be used for direct broadcast from local points. 6 All dates hereinafter are 1975 unless otherwise indicated. I The engineers' duties include operation of in-studio television cameras and videotape recording apparatus, maintaining equipment, and operating transmitters both directly and by remote control. These employees are stationed at two sites, one in the west section of Respondent's studio facility and the other at the Metromedia transmitter apparently some distance from the station. Engineers perform no newsgathering work and they have never covered news events. 486 METROMEDIA, INC.-KMBC-TV IATSE's certification and constituted an unfair labor practice. Mamet also requested a copy of the new IBEW contract. By a letter dated June 6, Pantell detailed Respon- dent's negotiations with IBEW and stated that "the new Engineering agreement does not alter the exclusive jurisdiction historically held by the Engi- neers ... ." The letter further stated that "the new agreement creates a new category of Engineer; one who is assigned to the coverage of news and special events." After receiving this letter, Mamet reiterated his request for a copy of the IBEW contract at a negotiating session on June 17, and Pantell stated that he could not give Mamet a copy until the contract had been "approved." 8 At the next meeting, held on July I, Pantell proposed certain severance benefits for IATSE unit employees in the event they were laid off as a result of reduction in the work force caused by use of the minicam. However, Respondent's proposals also gave it the right to discharge employees at will and contained no provision for arbitration. Mamet objected to these proposals and informed Pantell that IATSE would file an unfair labor practice charge based upon Respondent's action with regard to the minicam. Mamet also conditionally accepted the layoff provisions, in the event IATSE lost the instant unfair labor practice case. By October 10, Respondent and IATSE reached agreement on all issues except operation of the minicam. At a meeting on that date, Pantell gave Mamet a copy of the IBEW contract and Mamet stated that the "news engineer" category created by that agreement established "a unit within a unit."9 Pantell then proposed a "security jurisdiction" plan whereby Respondent would guarantee that there would be no layoff of the present five cameramen in the IATSE unit but only for the duration of the contract or for some other period of time to which the parties agreed. This same proposal also provided for cameramen within the unit to work as camera- men under the IBEW contract' 0 and retained Respondent's right to discharge without just cause. Mamet then restated his intent to file an unfair labor practice charge with respect to the operation of the minicam and on November 3 filed the charge initiating the instant proceeding. R The collective-bargaining agreement was subject to approval of the International president of the International Brotherhood of Electrical Workers. Pantell subsequently received a copy of the approved contract on September 2 and he gave a copy of this contract to Mamet on October 10. 9 At the time of the instant hearing, Respondent had not yet commenced using the minicams, simply because most of the cameras were still on order; although part of one camera had arrived at Respondent's studio, it was not operable. The record establishes that Respondent and IBEW intended to implement their agreement as to the operation of the minicams as soon as practicable. Indeed, it is undisputed that a training program had been set up for June 20 to familiarize at least two IATSE cameramen and an undetermined number of engineers with the minicams. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by granting exclusive jurisdiction to IBEW over the operation of minicams without sufficient prior notice to or good- faith bargaining with IATSE. The complaint further alleges that the granting of such exclusive jurisdiction to IBEW will cause the work of IATSE unit employees to be totally absorbed under the IBEW contract and will further result in the complete dissolution of the certified IATSE unit. The Administrative Law Judge, relying primarily on J. L Allen Co., 1 recommended dismissal of the complaint on grounds that the factual situation and the relief sought indicated that this controversy could not be litigated in the context of a charge of unlawful refusal to bargain but, rather, that a proceeding under Section 10(k) of the Act was appropriate. The Administrative Law Judge further found that in fact Respondent had bargained in good faith with IATSE over the minicam issue. We disagree. In Carey v. Westinghouse Electric Corp., 12 the Supreme Court stated that: . ·.. [al "jurisdictional dispute" could be one of two different, though related, species: either-(I) a controversy as to whether certain work should be performed by workers in one bargaining unit or those in another; or (2) a controversy as to which union should represent the employees doing particular work. The Court noted, that, in the former situation, . . . [the] remedies for "jurisdictional" contro- versies of that nature come into play only by a strike or a threat of a strike.' 3 If, however, the controversy be a representational one, involving the duty of an employer to bargain collectively with the representative of the employ- ees as provided in §8(aX5), further considerations are necessary. Such a charge, made by a union against the employer, would, if proved, be an unfair labor practice, as §8(a)(5) expressly states.' 4 '0 Edward L. Wuillming, a member of IATSE's cameraman unit, testified that, as one of the two cameramen approached about becoming members of the IBEW unit, he was told by Claude Dorsey, news director, that on news events the cameramen currently covering such items would use the minicam, but on nonnews events the engineers would operate the minicams. " 199 NLRB 675( 1972). t2 375 U.S. 261,263(1964). '3 375 U.S. at 263-264. t4 Id at 266-267. 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In our view, the instant case falls squarely within the second category. Here, while ostensibly bargain- ing with IATSE, inter alia, about the use of minicams, Respondent, without notice to that Union, awarded exclusive jurisdiction over the minicam work to employees represented by IBEW, thereby effectively foreclosing further meaningful negotia- tions on that matter. Such precipitate and summary action in the middle of negotiations is hardly consistent with or conducive to good-faith bargain- ing. Furthermore, in order to implement that "award," Respondent was required to create a separate category of "news engineers" within the IBEW unit,15 and indicated to cameramen in the IATSE unit that it wanted them to transfer into that category so that they could operate the minicams. In this regard, Respondent made clear to the camera- men that, as a prerequisite to their working in the new "news engineer" category and operating the minicams, they (or any other IATSE unit employees who desired to operate such cameras) would have to become members of the IBEW unit.' 6 This conduct was obviously undertaken in complete disregard of the status of IATSE as the collective-bargaining representative of the news cameramen. Clearly, the above circumstances distinguish this case from J. L. Allen Co., supra, and instead place the instant proceeding squarely within the context of an 8(a)(5) and (1) refusal to bargain.'7 In J. L. Allen, the Board found that the alleged violation of Section 8(a)(5) of the Act was . . . merely part and parcel of the bona fide jurisdictional work dispute which existed in this case and was so inseparably intertwined with the other conduct in the course of the jurisdictional dispute that to find and remedy any such violation would also stand in conflict with the remedial scheme contemplated by Congress as the exclusive means for resolution of work-assign- s1 Under Respondent's collective-bargaining agreement with IBEW, "news engineers," unlike other employees in that unit would, among other things, be governed by a separate seniority system, be exempt from Federal Communications Commission licensing requirements, and be required to accept all overtime work requested by Respondent. 16 Pantell testified that "Before [cameramen in the IATSE unit] would operate a minicam they would have to be under the IBEW contract." l" In view of his dissenting opinion in J. L Allen, Member Penello would find the 8(a)(5) violation regardless of whether Allen and the instant case are distinguishable. Member Murphy has not previously considered the holding of J. L Alien and does not by the discussion herein necessarily indicate that she would adhere to that decision in circumstances different from those now before us. is 199 NLRB at 676. 19 We note, however, that Pantell testified that cameramen might also be used to operate the minicam in the studio. We find it unnecessary to resolve, insofar as it exists, any inconsistency between this testimony and that of Wuillming, discussed supra at fn. 10. 20 We find no merit to the contention of Respondent and IBEW that the instant charge is barred by Sec. 10(b) of the Act because they orally agreed ment claims between competing labor organiza- tions.'8 Here, however, unlike J. L Allen, we are not faced with a traditional jurisdictional dispute to be deter- mined under Section 10(k) of the Act because, as noted, Respondent in the midst of bargaining with IATSE concerning the operation of minicams has not only unilaterally assigned such work to employ- ees in the IBEW unit, but has also announced that in order to implement its assignment IATSE unit employees will be transferred as well. Although it is undisputed that employees from both the IATSE and IBEW units will be trained to use the new equip- ment, and it appears that IBEW unit employees will operate minicams in the studio,' 9 it is also clear that only employees from the IATSE unit (albeit under IBEW jurisdiction), will operate the minicams to cover news events inasmuch as they alone have the requisite skills to do so. Thus, there is no question but that, in order for Respondent to utilize the minicams as it intends, it will have to transfer at least some cameramen from the IATSE unit to that represented by the IBEW. Accordingly, on the basis of the foregoing, we find that Respondent violated Section 8(a)(5) and (1) of the Act2 0 by: (1) failing to bargain in good faith with IATSE over the operation of minicams; (2) unilater- ally assigning newly created jobs to the IBEW, an action which will alter the terms and conditions of employment of IATSE unit members, without notice to or bargaining with that labor organization;21 (3) commencing to implement its decision that employ- ees in the IATSE unit would be required to become members of the unit represented by the IBEW; 22 and (4) all of the foregoing conduct, undermining the status of IATSE as the certified bargaining represen- tative of the employees in the appropriate unit herein. We shall, therefore, order that Respondent cease and desist from such unlawful conduct, and that the IBEW would have jurisdiction over minicams on May 6 and the charge was not filed until November 7, more than 6 months later. The record shows that IATSE was not advised of this agreement until June 4. It is well established that "the 6-month limitations period prescribed by Section 10(b) does not begin to run on an alleged unfair labor practice until the person adversely affected is put on notice, actually or constructively, of the act constituting it." Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB 222, 226 (1974). 21 See Wisconsin Contractors, Inc., 183 NLRB 872 (1970), where the Board found that the employer violated Sec. 8(aX5) and (I) of the Act by unilaterally assigning bargaining unit work to nonunit employees without providing prior notice to the union to afford it an opportunity to bargain. 22 As noted above, it is undisputed that Respondent's decision to transfer at least two IATSE unit employees to the IBEW unit was final and that it was merely awaiting delivery of the minicams in order to carry out its plans. Under these circumstances, although the transfers had not been fully effectuated, it is undisputed that Respondent had made all possible preparations to implement the decision and we therefore conclude that by taking such action Respondent violated Sec. 8(aX5) of the Act. 488 METROMEDIA, INC.-KMBC-TV affirmatively order that Respondent bargain in good faith with IATSE upon request.23 CONCLUSIONS OF LAW 1. Metromedia, Inc.-KMBC-TV is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Photographers of the Motion Picture Industry, Local 666, IATSE (AFL-CIO), herein called IATSE, and Local 1259, International Brotherhood of Electrical Workers (AFL-CIO), herein called IBEW, are labor organizations within the meaning of Section 2(5) of the Act. 3. IATSE is the certified collective-bargaining representative of employees in the following appro- priate unit: All full-time and regular part-time news depart- ment motion picture cameramen of Metromedia, Inc., at its KMBC-TV station located in Kansas City, Missouri, but excluding guards, supervisors, as defined in the Act, and all other employees. 4. By failing to bargain in good faith with IATSE over the operation of minicams; by unilaterally assigning newly created jobs to the IBEW unit, an action which will alter the terms and conditions of employment of IATSE unit members, without notice to or bargaining with that labor organization; by taking action to implement its unilateral decision that employees in the above-described unit would be required to become members of the unit represented by IBEW; and by undermining the status of IATSE as the collective-bargaining representative of employ- ees in said unit, Respondent has violated Section 8(a)(5) of the Act. 5. By the foregoing conduct, Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 6. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, we issue the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Metromedia, Inc. - KMBC-TV, Kansas City, 23 IATSE has requested that as part of the remedy the Board order Respondent to assign the minicam work to employees in the IATSE unit. Missouri, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively over the operation of minicams with International Photogra- phers of the Motion Picture Industry, Local 666, IATSE (AFL-CIO), herein called IATSE, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time news depart- ment motion picture cameramen of Metromedia, Inc., at its KMBC-TV station located in Kansas City, Missouri, but excluding guards, supervisors, as defined in the Act, and all other employees. (b) Unilaterally assigning the operation of mini- cams to the employees in the unit represented by Local 1259, International Brotherhood of Electrical Workers (AFL-CIO), herein called IBEW, an action which will alter the terms and conditions of employ- ment of IATSE unit members, without prior notifica- tion to or bargaining with IATSE. (c) Taking action to implement its decision that employees in the above-described unit represented by IATSE would be required to become members of the unit represented by IBEW. (d) Implementing that portion of the collective- bargaining agreement granting minicam work exclu- sively to employees represented by the IBEW. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designat- ed to effectuate the policies of the Act: (a) Upon request, bargain in good faith with IATSE over the operation of minicams at Respon- dent's Kansas City, Missouri, facility. (b) Notify and, upon request, bargain in good faith with IATSE about any unilateral changes in the terms and conditions of employment of employees in the bargaining unit represented by such labor organization. (c) Rescind that portion of its collective-bargaining agreement with IBEW granting minicam work exclusively to employees represented by IBEW. (d) Rescind its decision assigning operation of the minicams to the employees in the unit represented by IBEW and the requirement that employees in the above-described unit represented by IATSE become members of the unit represented by IBEW in order to operate such cameras. We consider such an award of work inappropriate in this proceeding and, therefore, we deny IATSE's request. 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its Kansas City, Missouri, place of business copies of the attached notice marked "Appendix." 2 4 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 24 In the event that this 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain over the operation of "minicams" with IATSE as the certified collective-bargaining representative of employees in the following unit: All full-time and regular part-time news department motion picture cameramen of Metromedia, Inc., at its KMBC-TV station located in Kansas City, Missouri, but ex- cluding guards, supervisors, as defined in the Act, and all other employees. WE WILL NOT assign newly created jobs to employees represented by the IBEW, an action which will alter the terms and conditions of employment of IATSE unit members, without prior notification to IATSE and affording IATSE an opportunity to bargain with respect to such jobs. WE WILL NOT take any action to implement our unilateral decision that employees in the IATSE unit would be required to become members of the IBEW unit in order to operate the "minicams." WE WILL NOT recognize that portion of the contract with Local 1259, International Brother- hood of Electrical Workers, assigning exclusive jurisdiction over "minicams" to employees repre- sented by IBEW. WE WILL NOT make any unilateral changes in the terms and conditions of employment of employees in the bargaining unit represented by IATSE without first notifying and, upon request, bargaining in good faith with that labor organiza- tion about such changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain with IATSE about "minicam" work. WE WILL rescind that portion of the contract granting minicam work exclusively to the IBEW. WE WILL rescind our decision assigning opera- tion of the minicams to the employees in the unit represented by IBEW and the requirement that employers in the above-described unit represent- ed by IATSE become members of the unit represented by IBEW in order to operate such cameras. METROMEDIA, INC.- KMBC-TV DECISION STATEMENT OF THE CASE JAMEs L. ROSE, Administrative Law Judge: This matter is before me upon the General Counsel's complaint alleging that Respondent breached its bargaining obliga- tions to International Photographers of the Motion Picture Industry, Local Union 666, IATSE (AFL-CIO), (IATSE or Cameramen) in violation of Section 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. In general terms, this matter involves the question of which employees will be entitled to operate the portable video tape cameras (minicam) which the Company planned to introduce to its operations in or about August 1976. At the time of the hearing, the Company had prospectively assigned that work to employees represented by Local Union 1259, International Brotherhood of Electrical Workers (AFL-CIO), (IBEW or Engineers), by which assignment the General Counsel alleges that Re- spondent breached its bargaining obligations to the Cameramen. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: FINDINos OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in commercial television broadcasting operating, among others, television station KMBC-TV located in Kansas City, Missouri. In the course of its operations, Respondent annually does a gross volume of business in excess of $100,000 and 490 METROMEDIA, INC.-KMBC-TV annually receives $50,000 from advertising customers located outside the State of Missouri. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Photographers of the Motion Picture Industry, Local 666, IATSE (AFL-CIO), is admitted by Respondent to be, and I find that it is, a labor organization within the meaning of Section 2(5) of the Act. Local Union 1259, International Brotherhood of Electri- cal Workers (AFL-CIO), is admitted by Respondent to be, and I find that it is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background The essential facts involved in this matter are not in serious dispute. IATSE petitioned to represent Respon- dent's news department motion picture cameramen, appar- ently in late 1973. An election was directed on January 8, 1974, and held on February 19. Following the Company's objections to the election, on April 3, 1974, IATSE was certified as the exclusive bargaining representative in the following unit: All full-time and regular part-time news department motion picture cameramen of Metromedia, Inc., at its KMBC-TV station located in Kansas City, Missouri, but excluding guards, supervisors as defined in the Act, and all other employees. For reasons not explained in the record, the Cameramen and Respondent did not commence bargaining until August 5, 1974. The parties met a second time on November 14 and again December 10, 1974; and then did not meet until June 4, 1975. Material to the allegations here, at the August meeting the Company proposed a contract which included two clauses both set forth in article V (Jurisdiction). The sixth paragraph of section 5.01, Duties of Cameramen, read: News Cameramen may be assigned by the Station to operate portable video cameras and associated equip- ment. And section 5.02: Performance of Cameramen's Work by Others. Noth- ing herein shall be deemed to prohibit the performance of any of the work of Cameramen, as set forth in Section 5.01, by persons who are not Cameramen and therefore, not covered by the terms of this Agreement. Arthur W. Beeman, who was the Cameramen's principal negotiator in 1974, testified that he agreed to the first quoted clause but disagreed to the second. He also testified that it was his opinion, at least, that by proposing the first clause, namely, that cameramen may be assigned by the station to operate portable video cameras, the Company thereby gave exclusive jurisdiction over portable television cameras to IATSE. Commencing in January 1975, the Company began negotiating a renewal contract with IBEW, the representa- tive of all of the engineers, whose duties included operating and maintaining the television cameras. During these negotiations, the Company suggested a contract clause whereby it would be able to assign the operation of minicams to employees not covered by the Engineers contract. This was rejected, with IBEW taking the position that it had exclusive jurisdiction over opera- tion of all types of video equipment, including minicams. Since 1942, IBEW has represented Respondent engineers in a unit whose work jurisdiction includes all operation "of television broadcast, facsimile, and studio equipment and apparatus used for broadcasting, rehearsal or audition of material by means of which electricity is applied in the transmission or transference, production, or reproduction of voice, sound or vision, with or without ethereal aid, including all types of audio and video recordings." The minicams, which the Company intended to intro- duce into its operation and presumptively by this date has, are lightweight portable television cameras which first became a technological reality a few years ago. They were first used extensively by the national networks to cover the presidential conventions of 1972. Respondent contemplates using the minicams, at first at least, principally as a news gathering device although the minicams will ultimately be used for taping advertisements at locations and direct broadcasts away from the studio. In any event, in contemplation of its introducing minicams, Respondent sought to have as much flexibility in assigning people to do this work as possible. According- ly, during negotiations with IATSE it suggested the clause that news cameramen "may be assigned by the station to operate portable video cameras." It also attempted to negotiate a similar clause in the contract with the Union representing the other news personnel; and, in negotiations with IBEW, it sought to have the Engineers relinquish exclusive jurisdiction over that work. This, however, the Engineers refused to do. Thus, the parties interpret the 1975-78 IBEW contract as recognizing exclusive jurisdic- tion over operation of the minicams in the Engineers, although there was no change in the work jurisdiction language. There was, however, created a new classification of news engineer, presumptively designating the individu- als specifically assigned to operate the minicams. In late 1975 an agreement between IATSE and Respon- dent was reached, although IATSE specifically reserved its claim to the minicam work. IATSE filed the charge herein in pursuit of this claim. B. Issue The principal issue in this matter is whether Respondent somehow breached its bargaining obligations vis-a-vis the respresentative of its news Cameramen by agreeing with IBEW that exclusive jurisdiction over operation of the minicams belongs to the Engineers. 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis In substance, the General Counsel and Charging Party contend that the minicam is covered by IATSE unit description, or at least jurisdiction of the minicam was conceded during bargaining. In either case to assign the work to another craft, even prospectively, amounts to a refusal to bargain. In its brief, the Charging Party argues for a remedy: ... that Respondent and the IBEW, a Party-In- Interest in this case who participated fully in this matter, would be ordered to rescind their agreement on work which properly belongs to the bargaining unit of Local 666. Further, such remedy would order Me- tromedia to once and for all recognize the Charging Party's certification over all cameras which cover news and order Respondent not to insist upon the inclusion of any provision which would require Local 666 to accede to an unlawful grant of its work jurisdiction or members of its bargaining unit to any other bargaining unit. Similarly, the General Counsel argues for "an order setting aside Respondent's grant of mini-cam jurisdiction to the IBEW, and a further order directing Respondent to bargain in good faith with the Union (IATSE) on that issue." The Charging Party contends that the appropriate remedy is the assignment of the minicam work to the employees that it represents. The General Counsel does not quite go that far, but at least takes the position that the minicam work assignment to the Engineers should be rescinded, and that the assignment should be the subject of collective bargaining between Respondent and the Cameramen. Though couched as a refusal to bargain, the relief sought is that of a jurisdictional dispute. The work assignment to one craft is contested with the prayed for result that the work be reassigned to another craft. The statutory scheme to resolve such matters is an 8(b)(4XD) and 10(k) proceeding. To decide a work assignment dispute in an 8(a)(5) context is not appropriate. J. L Allen Co., 199 NLRB 675 (1972), where the company was alleged to have violated Section 8(a)(5) by "unilaterally withdrawing work from unit employees and assigning it to nonunit employees." In dismissing this allegation the Board said, at 676: . . we rest our dismissal of that allegation on our determination that the conduct alleged to constitute a refusal to bargain was, in fact, merely part and parcel of the bona fide jurisdictional work dispute which existed in this case and was so inseparably intertwined with the other conduct in the course of the jurisdiction- al dispute that to find and remedy any such violation would also stand in conflict with the remedial scheme contemplated by Congress as the exclusive means for resolution of work-assignment claims between compet- ing labor organizations. It might be noted that Members Kennedy and Penello dissented from this rationale. In any event, J. L Allen represents the rule of decision in this case-the complaint ought to be dismissed because the 8(aX5) allegation and the remedy sought amounts to a jurisdictional dispute between the two unions here. The ultimate question concerns whose members ought to perform the work of operating the minicam. Whether the dispute is, or was, ripe for determination under Section 10(k) makes no difference. It is the factual situation and the relief sought which is critical-assignment of work by the Company to one craft which the Union representing another craft claims. It is argued that this is not a work assignment dispute, or at least not one under Section 8(bX4)(D), because the work is covered in the unit description for which IATSE was certified. In this respect, the Charging Party and the General Counsel state as a fact a matter which is both subject to argument and is at the very core of this controversy, namely, whether the minicam is a "motion picture camera." The only evidence offered in support of this assertion is a statement by counsel for the Charging Party, when a witness, and one of its cameramen to the effect that a motion picture camera is one which "shoots pictures with motion, otherwise it is a still picture." Such statement is broad and conclusionary and does not really reach the question of whether "motion picture camera" includes both film and television. Although stating that to him "motion picture camera" means "the photographing of pictures that moves," counsel for the Charging Party conceded that to "them [Respon- dent] it means film." At best there is no universal agreement in the industry that the phrase "motion picture camera" contemplates television as well as film. Absent any persuasive evidence to the contrary, I will accept as the appropriate, and common parlance, meaning of the phrase to include only cameras in which the image is captured on film. I conclude that the phrase was not meant to include television cameras, which also, of course, project pictures which "move." That "motion picture camera" is not a phrase which includes minicam is consistent with the Board's decision in International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (Metromedia, Inc.), 225 NLRB 785 (1976). In that matter of a sister local of IATSE here had been certified in a unit described as including "motion picture cameramen and news reel cameramen." The Board found the certifica- tion of little value in deciding the jurisdictional dispute, and specifically found that the certification did not cover minicams. As discussed infra, for other reasons jurisdiction of the minicams was awarded to the cameramen's unit. Functionally, the minicam does essentially the same job and it is contemplated to the same job as the CP-16 film camera now in use. It is to be used outside the studio to film and tape news events, which would then subsequently be put on the air. On the other hand, the minicam is in fact a television camera and has the capability of direct broadcast from location points. Thus, its operation, to the extent it is a TV camera, would be worked traditionally for the Engineers, while its operation as a news camera would 492 METROMEDIA, INC.-KMBC-TV be worked traditionally for the news department Camera- men. On facts essentially identical to those presented here concerning who ought to do this work, the Board held that the Engineers was entitled and that the other crafts, including soundmen, electricians, film cameramen, and TV editors, were not. This decision was consistent with the employer's assignment. Stage Employees Local One, IATSE, AFL-CIO, Theatrical Protective Union (RKO General, WOR-TV Division), 219 NLRB 1165 (1975). But in International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada supra, the Board concluded that the news Cameramen and not the Engineers was entitled to the work. This again was consistent with the employer's assignment. Thus in two relatively recent cases involving this work, the Board concluded, in accordance with the employer's assignment, to award the work to engineers in one and to news cameramen in the other. The only apparent differ- ence of substance in these cases was the employer's assignment. In any event, from these cases it is clear that a minicam is not considered ipsofacto a motion picture camera or work within a cameraman's unit.' What the Board might do in a 10(k) proceeding involving these unions and employer is not as important as the fact that who is entitled to this work assignment is not without question. In addition to its claim that the unit certification includes the minicam, the Charging Party and General Counsel take the position that during negotiations Respondent awarded jurisdiction over the minicam to the Cameramen. To arrive at this conclusion it is argued that Respondent gave pro forma recognition of minicam jurisdiction to IATSE by proposing: "News cameramen may be assigned by the station to operate portable video cameras and associated equipment." This proposal was part of the "Duties of Cameramen" clause, other sections of which use the word "shall." The fact that "may" is used indicates a precatory rather than a mandatory assignment, even if this proposed language can be construed as a work assignment. Furthermore, by the next clause, the Company proposed that it could assign Cameramen work to employees outside the bargaining unit. This proposal was rejected by the IATSE. Beeman, however, testified that it was his understanding of the bargaining situation that each of the proposed sentences or subclauses would be taken separately and that IATSE could agree to the Company's proposal of one sentence and disagree to another. I find this wholly incredulous and specifically do not credit Beeman's testimony in this regard. I cannot believe that, in proposing a total and rather complex contract, the Company would take the position that IATSE could accept such of it that it wanted while rejecting the rest. On the contrary, I credit the testimony of Robert Parnell and find that the negotiations were basically such that no particular I Wisconsin Contractors, Inc., 183 NLRB 872 (1970). relied on by the General Counsel is inapposite. A finding there was made that the new work item would be considered settled until the total contract was agreed to. This is traditional and logical. The construction asked for by the Charging Party simply does not make sense. Of course both parties could tentatively agree to a given clause while leaving other issues open, and such a procedure is standard. But there is no persuasive evidence that such was the case with a minicam subclause. In short, I conclude that at no time did the Company advise the Union that it was granting it exclusive jurisdiction over operations of the minicam, even if the clause can be interpreted as meaning what the Charging Party says it means. On the other hand, during negotiations, beginning as early as August 1974 and at least a year prior to the introduction of the minicams, the Company did negotiate with IATSE concerning the minicam work. Further, after negotiating a contract with the Engineers concerning operation of the minicams, the Company bargained with IATSE concerning the effects, if any, of the minicam assignment on the employees. Even totally crediting the Charging Party's witnesses, I cannot conclude that there was bad-faith bargaining on the part of the Company with regard to the minicam issue either with regard to the assignment of the work or the effects that the introduction of such work might have on the bargaining unit represented by the Cameramen. Quite the contrary, from the totality of the record it appears that the Company in fact bargained on request with the IATSE and that, for reasons not fully explained, IATSE prolonged negotiations with substantial periods of nonactivity from the time of the certification through the summer of 1975. IATSE was certified on April 16 but did not have its first bargaining session with the Company until nearly 4 months later. The first session was held on August 5, the second on November 14, 3 months later, and the third in December. Then nothing happened until June 4, 1975, a period of some 7 months. While it appears that Beeman was in fact ill, had an operation in March 1975 and a 2- or 3-week recovery, why the Union did not pursue its negotiations with Respondent is still unclear on the record, leading to the conclusion that it was something less than rigorous in its pursuit of a contract. The record does not demonstrate bad-faith bargaining on the part of Respondent. Nor does the record support the conclusion that Respondent reneged on an agreed-to contract clause in violation of its bargaining obligations, even if such an act is proscribed by Section 8(aX5). The Charging Party and General Counsel raise addition- al arguments, e.g., that assignment of minicam work to the Engineers will ultimately cause the Cameramen unit to disappear; that current Cameramen will be assigned to the minicam but then will be part of the Engineer unit; and that Engineers assigned to the minicam will not have to be licensed under the FCC. These may be material consider- ations when determining the work assignment. They are not relevant to the issue of whether Respondent bargained in bad faith. belonged in the production and maintenance unit, and there was no competition for the work. 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, Metromedia, Inc. - KMBC-TV, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Photographers of the Motion Picture Industry, Local 666, IATSE (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. Local Union 1259, International Brotherhood of Electrical Workers (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 4. Local 666, IATSE, is the certified collective-bargain- ing representative of employees in the following appropri- ate unit: All full-time and regular part-time news department motion picture cameramen of the Respondent at its KMBC-TV station located in Kansas City, Missouri, but excluding guards, supervisors as defined in the Act and all other employees. 5. Respondent did not bargain in bad faith in violation of Section 8(a)(5) in connection with negotiations with Local 666, IATSE, as the exclusive collective-bargaining representative of employees in the above-described bar- gaining unit. 6. Respondent did not violate Section 8(aXI) or Section 8(aX)(5) of the Act by prospectively assigning the work of operating the minicam to employees represented by Local 1259, IBEW. 7. The work of operating the minicam is not work which is per se covered under the certification set forth in paragraph 4 above. 8. Respondent did not violate its bargaining obligations under Section 8(aX)(5) or (1) of the Act by refusing to bargain with Local 666, IATSE, concerning the effects on bargaining unit employees of such work assignment. 9. Respondent did not in any other manner violate its bargaining obligations under Section 8(aX5) or commit violations of Section 8(a)(l) of the Act, in connection with the negotiations with Local 666, IATSE and/or Local 1259, IBEW. [Recommended Order for dismissal omitted from publi- cation.] 494