National Association of Broadcast Employees

NATIONAL ASSN. OF BROADCAST EMPLOYEES National Association of Broadcast Employees and Technicians, AFL-CIO and Osprey Productions, Inc. National Association of Broadcast Employees and Technicians, AFL-CIO; and National Association of Broadcast Employees and Technicians, AFL- CIO, Local 31 and CBS, Inc. Cases 5-CC-828 and 5-CC-829-1, 2 October 29, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On June 17, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs, and the Respondents filed an answering 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,2 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- 1 In Case 5-CC-828 (Osprey Productions, Inc.) the original complaint was issued only against the National Association of Broadcast Employees and Technicians, AFL-CIO, NABET After the General Counsel had com- pleted his case in the consolidated hearing it was clear from the testimony of officials of NABET's Local 31, information not previously known, that the picketing conduct of NABET and its Local 31 was closely intertwined and they were in effect acting as a single entity with the same objectives Signifi- cantly, both NABET and its Local 31 were represented by the same attor- ney and the issues were fully litigated Accordingly, the General Counsel made a motion to amend the complaint to allege conduct which had been alleged against NABET to be also attributed to Local 31 and and that the appropriate remedy be provided The Respondents opposed the motion, but made no showing how they would thereby be prejudiced In the circum- stances the Administrative Law Judge's ruling granting the motion was clearly authorized under Sec. 102 17 of the Board's Rules and Regulations 2 In sec. III of his Decision, the Administrative Law Judge erroneously referred to the picketing at the Hilton Hotel as arising in Case 5-CC-829, rather than in Case 5-CC-828. Further, with respect to Case 5-CC-828, the Administrative Law Judge specifically found,'and we agree, that Local 31 violated the Act. While it is implicit in his discussion of NABET's involve- ment in Local 31's conduct and in his recommended Order against both Respondents that he also concluded that NABET violated the Act in that case, the Administrative Law Judge failed to make an express finding in that regard. In view of the clear evidence of NABET's involvement in Local 31's conduct, as set forth by the Administrative Law Judge, we specifically find that NABET violated the Act as alleged 641 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents , National Association of Broadcast Employees and Technicians, AFL-CIO, and its Local 31, Washington, D.C., their officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held at Washington, D.C., on April 29 and May 3, 1976, on separate complaints of the General Counsel, one (Case 5-CC-828) against National Associa- tion of Broadcast Employees and Technicians, AFL-CIO, here called NABET International, or Respondent, and the other (Case 5-CC-829) against both NABET Interna- tional and its Local 31. Both complaints issued on April 12, 1976, the first on a charge filed April 7, 1976, by Osprey Productions, Inc., and the second on a charge filed on April 1, 1976, by CBS, Inc. The issues raised in each com- plaint are whether the Respondents violated Section 8(b)(4)(i) and (ii)(B) of the statute, unlawful coercion of neutral employers and unlawful inducement of employees of neutral employers to engage in a strike. The two com- plaints were consolidated for single hearing. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTIES CBS, a New York corporation, is engaged in the opera- tion of a network of television and radio broadcast stations and related activities, at various locations throughout the United States, including Washington, D.C. During the pre- ceding 12 months, a representative period, CBS received gross revenues in excess of $1 million from commercial and other programs it purchased, recorded, transcribed, and broadcast throughout the United States. Osprey, a New York corporation with its headquarters in New York City, is engaged in the production of television and film programs under contract with various commercial and industrial companies. During the 12-month period pre- ceding issuance of the complaint, a representative period, Osprey received goods and services valued in excess of $50,000 from points located outside the District of Colum- bia. I find that CBS and Osprey are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find that both National Association of Broadcast Em- ployees and Technicians, AFL-CIO, and its Local 31, are 226 NLRB No. 110 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations within the meaning- of Section-2(5) of the Act. - III. THE UNFAIR LABOR PRACTICES A. Inducement and Coercion at M Street (Case 5-CC-829) For upwards of 15 years the three major television broadcasting companies-CBS, NBC, and ABC-have im- plemented a tricornered pool arrangement to take film pic- tures of presidential travel. It is referred to as the travel pool, and began early in the 1960's, in consequence of in- creasing concern over the safety of the President. Since that time, as ordered by White House rules and United States Secret Service regulations, only one of the three TV companies is permitted a crew of broadcast technicians to accompany the President -while he_ travels from place to place. The system applies when he goes by car-in which case only one TV crew may ride in another vehicle close behind him, or by plane, when again only,one crew may be inside the airplane. The pool arrangement ceases when the President arrives at his destination; there, whether it be an outdoor or indoor function, as the location is usually ex- tended and the crowds great, all networks are free, as they chose, to record happenings. This is called unilateral cover- age of the event by the news media-each company work- ing for itself only. In the pool arrangement, as soon as the travel is finished, the one company which has recorded it quickly makes copies of its original film-called tapes, dubs, or what-not in the trade-and these are available by quick transport to the other two major networks. Selection of which of the three shall cover each travel is made by alphabetical rotation-ABC, CBS, and then NBC. On April 6, 1976, it was the regular turn of CBS to cover a trip by the President from Washington by auto into Vir- ginia, where a public function took place. In the afternoon, immediately after the travel, CBS technicians were work- ing, or about to start working, in the CBS office and plant on M Street in Washington to develop the film and make three copies, one for CBS use in its broadcasting stations and the others to be made available to NBC and ABC if they cared to have them. CBS employees at this location are represented by union, but none of them by NABET or any of its locals. About 60 employees, all technicians-including the men who work on the development of these films or dubs-are repre- sented by International Brotherhood of Electrical Workers (IBEW). On the afternoon of April 6, the Respondents here, both NABET International and its Local 31, picketed the M Street building. Their purpose was to induce the CBS technicians not to process the film which CBS em- ployees had that day made of the presidential travel. NABET represents the counterpart technicians who work for NBC in Washington, one of the other two networks which, under the travel pool practice, was entitled to re- ceive the travel films that day. On April 1, 6 days earlier, NABET had started a strike against NBC, its contract there, after fruitless negotiations, having expired. The strike, of course, was at another location in the city, where NBC has its plant. The essential elements proving the commission of unfair labor, practices, under Section 8(b)(4)(i), and (ii)(B) of the Act are clear on this record. NABET had no labor dispute with CBS; its quarrel was with NBC. NABET does not represent any of the CBS' employees: The work that the CBS technicians were doing that day is work-that:they have been 'doing for well over 10 years as a regular course of business. Restated: It is not work that, but for the NABET strike at NBC, the NBC technicians would that day have done. It was not "struck work." District 65, Distributive Workers of America (S.N.S. Distributing Service), 211 NLRB 469 (1974). It is admitted the M Street pickets were placed there by NABET and Local 31, with knowledge and authority of its international; this was usual inducement of employees of a neutral employer to cease work. The picket signs read NABET, Local 31, and "WRC-NBC-Unfair." The travel pool system was a business arrangement between the two companies, in a real sense sometimes one doing work for the other and sometimes the business reversed. Therefore, the object proscribed by the statute-"forcing, or requiring any person ... to cease doing business with any other person"- is also clear. And finally, it is no less clear that NABET put the pressure on the neutral employer itself-CBS-no less than on its employees, to cease doing business with NBC. In fact, the testimony, uncontradicted, proves CBS knuckled under-in view of the essential time element that particularly marks this industry-and yielded to the demand that it stop doing its regular work before the pickets would be removed.I Donley, the regional vice president of NABET, also spoke to John Clucas, CBS manager of radio and television administration, while the pickets were in place, and asked was CBS making a tape for NBC. When Clucas said yes, Donley, as he testified, said "stop doing it or . . . we would i From the testimony of Charles Chester, CBS general manager, about a phone call he received that day from John Donley, a vice president of NABET A I told Mr Donley that we were doing our normal pool activities at 2020 M Street We were doing nothing special for NBC Q. What did Mr Donley say to you9 A Mr. Donley said, you are doing work for NBC and we are going to throw up a picket line Q Do you recall if Mr Donley gave you any options as to what you could do later that day? A Mr Donley gave us the option of not doing our normal pool activities. In which case, he would take the picket line down Chester went on to say he later called Donley back on the telephone A Basically, I said, Jeff, we are going to have to concede and go along with your request We do it under protest. We don't like what we are having to do Q. Mr Chester, calling your attention to April 6, your telephone conversation, the second one, to Mr Donley I believe you testified that you told him that you were reluctantly agreeing and would not do the work he was speaking of. Is that correct9 A That is absolutely correct, definitely Jeff knows that I was very upset at that point in time Q If you did it reluctantly, why do you do it at all? A We did it because we had to get the Cronkite show on the air because our technicians, in effect, were being kept on the street by the fact that the NABET picket line was surrounding our building NATIONAL ASSN. OF BROADCAST EMPLOYEES have to picket...." Donley also testified about his talk with Chester, CBS general manager, and said he, Donley, ordered the pickets removed only after Chester told him "that the work that we complained of was finished, or stopped." Claucaa' testimony is that Donley told him "if [1] assured him that the tape would not be made that there would be no pickets." I find that by picketing the premises of CBS, and by threatening CBS with continued picketing unless it ceased doing the work in question, all for the purpose of forcing CBS to cease doing business with NBC, both Respondents-NABET International and its Local 31- violated Section 8(b)(4)(i) and (ii)(B) of the Act. - As a witness, Donley did most of the talking at the hear- ing for the defense. His testimony was deliberately ambigu- ous, vague, mostly argumentative, and, more important, inconsistent. Where his testimony can be called factual at all, and where it might be read as conflicting with the testi- mony of the CBS managers, I do not credit Donley. At one or two points he seemed to be saying there was no such thing as a presidential travel pool; then again that the Union only learned about it in January 1975. Again, later, arguing the pool had no legal standing except by virtue of the NABET-NBC collective-bargaining agreement, he said the pool language in his contract-that of 1964 to 1967- resulted from events between 1961 and 1964 during the President Kennedy years, "brought about a necessity for some sort of pooling arrangement." 2 But this is exactly what Chester and Clucas, of CBS, had explained. It is a fact that this arrangement-the three companies taking turns photographing the travel and sending copies of their film, whatever the physical thing be called, to the other two-has been their way of doing business for a long time. And it is a fact both Unions always knew about it. As such the making of these films was the regular work of the em- ployees of each company whenever the predictable and ex- pected occasion arose for them to do it. Doubletalk of the kind Donley was uttering at the hear- ing always carries its own wounds. He produced a griev- ance filed by NABET against NBC dated January 1975. 11 Rather than proving there was no pool arrangement then, it shows instead it did exist-exactly as the CBS officials said. The grievance reads: "On the above date NBC sent a PCT-90 crew to the White House for a Pool job to video- tape. The 90 taped from five (5) locations. The tapes were then sent by courier to CBS who made dubs and then to other locations. The Union grieves this action of the com- pany as a violation...." As I read it, the grievance com- 2 From Donley's testimony JUDGE Ricci You told me a contract expired on March 31, of this year9 THE WITNESS : Yes, sir JUDGE Ricci - Before that date, is it not a fact that all three of the networks engaged in this rotation system of the pool alphabetically when the President left the White House9 With only one of the three networks sending its crew to follow him9 THE WITNESS That is quite true, yes JUDGE Ricci. They were doing that? THE WITNESS ' Yes, sir THE WITNESS For almost 12 years 643 plaint was that because NBC in that instance had been the pool member to send its crew for coverage, it was also NBC technicians who were to make the films, not CBS. Again, this is precisely the testimony of the CBS officials as to what was going on on April 6. Another defense came from Donley at the hearing, artic- ulated in confused conclusionary language that is not clearly intelligible. He was asked by Respondent 's counsel to give his opinion of the legal effect of very extended pro- visions in the NABET contract with .NBC which had ex- pired a week earlier. It is a 200-page book of fine print. Donley spoke of primary as distinguished from secondary work, legally interrelated contractual provisions, statutory proscriptions-like an expert.3 The true burden of his argu- ment was that the work of preparing the travel pool film was the work of CBS employees, and not of NBC's staff, only because the NABET-NBC contract so permitted, and only so long as that contract remained in effect, and that the moment that contract no longer was binding upon NABET, the work reverted to NBC, became primary by operation of law, and could be picketed with impunity by the Respondents. It was poor logic, bad law, and a worthless defense. The idea is an irrational distortion of the principle of Fibre- board Paper Products Corporation, 138 NLRB 550 (1962). Work which is normally performed within the bargaining unit, and has long been so performed, may not be contract- ed away to another employer without consultation with the union. From this it does not follow that work which has for about 15 years been performed by another and separate employer becomes unit work-and therefore primary- when that unit's union contract expires, and the work is of a kind that years ago used to be performed by unit employ- ees. Before the days of the presidential travel pool, each of the three networks had its own crew follow the President in his travels. Actually, when an employer has for so many years done business a certain way-whether it be occasion- ally receiving film made by a competitor, or whether it be installing doors supplied by a stranger nonunion manufac- turer-it is meaningless to say that the neutral is a neutral J The following, from the recorded transcript, is an example of the de- fense testimony by Donley Q [By Respondent's counsel] First of all, what is the meaning be- hind those words' THE WITNESSES- The Union has exclusive jurisdiction in accordance with this article within a 200-mile radius of television owned stations covered by the provisions of this agreement except programs originat- ing from the regular studio and affiliate Then you move to page 77. subparagraph 8, section A 23 (b)(1) and (2) which applies outside the 200-mile radius, do not apply to news and news special events pro- grams originated on a pool basis with any other network or networks Q Stop right there What does that mean9 A It means that we have a very broad granted jurisdiction and that there are some very specific exceptions. Q Is the pool an exception9 A The pool is an exception to that JUDGE Ricci What do you mean you have jurisdiction by virtue of whose authority' THE WITNESS By virtue of a negotiated contract JUDGE Ricci You mean NBC gives you jurisdiction When you say we have jurisdiction. you don't mean the law You mean NBC THE WITNESS Right 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only by the good graces of the primary employer's union. As a matter of fact, the last NABET contract expressly recognized the pool arrangement when it was signed in 1973, for it provides that the employer would continue its established practice of using work "performed outside the bargaining unit." 4 This total defense amounts to no more than a contention that regardless of how business has al- ways been conducted, when an employer's contract with his own union ceases to be binding on his union, that union may declare the work regularly performed by other compa- nies to be primary-and therefore the work of the first company-by fiat, in total disregard of the fact it is sec- ondary. B. Picketing Inducement at the Hilton Hotel (Case 5-CC-828) On the first day after the NABET-NBC contract ex- pired, on April 1, Local 31 placed pickets at the main en- trances of the Hilton Hotel, also in Washington. Osprey Productions, Inc., a company called an independent, and which produces shows for eventual TV exposure, was that day engaged in that location producing and recording such a program. It was doing this under contract with Mutual of Omaha, an insurance company. Mutual had simply ar- ranged for Osprey to do this at a price. Local 31 repre- sented neither the employees of Osprey nor those of Mutu- al. Osprey, in need of technical work for this job, contracted with CBS to furnish a number of electronic'and film technicians, the same kind of employees who work at the CBS M Street location. A number of CBS employees-close to 15 of them- refused to cross the NABET picket line when they arrived at the hotel shortly after I- p.m. Within a matter of min- utes-because there was much preparing to do inside the hotel and the schedule was tight-a man named Schneider, the Osprey program director, came out and told the pickets NBC had nothing to do with this work at all. The picket sign read:"Unfair-NBC-NABET." Edgar Johnston, an NBC engineer apparently in charge of the pickets although he avoided the admission, asked for something in writing to prove this was not an NBC show. Schneider wrote it and gave it to him. Now Johnston said Schneider might be right, but the picketing union would still have to investigate and make sure about that. He made several calls to his superiors and went to the NABET union hall. There he reported, with Schneider's written explanation in his hands, to Lawrence Reynolds and Harold Tomason, both officers of Local 31. The phones kept ringing. Schneider called Reynolds, repeating NBC had no connection with any- thing that was going on at the Hilton, and adding "time 4 The NABET contract contains the following clause The company agrees that it will not transfer or subcontract any work or functions covered by this agreement and presently being performed by employees in the bargaining unit, or to which employees are entitled under the terms of this Agreement, to persons outside the bargaining unit, provided that with respect to work or functions which in the past have been performed for the Company both by persons within and without the Unit the Company may continue to have such work per- formed outside the bargaining unit to a degree no greater than hereto- fore . was important."'Reynolds told him to hold still while he checked. The picketing continued. Reynolds' testimony is that he then called Roy Davis, of NABET International, and Sanders, president of Local 31, who was in San Diego. Davis; the NABET International representative of New York, said he received a call from a lawyer representing Mutual of Omaha, protesting the picketing. Davis' testimo- ny is that this caused him to call Reynolds; the Mutual of Omaha lawyer called again_a half hour later-and still the pickets remained in place while Davis could not make up his mind. Finally, somebody decided the pickets should be removed and, sometime between 1- 1/2 or 2 hours after the picketing had started, it was stopped. In this case the evidence does not permit discussion for a finding that there was no struck work being performed at the Hilton to justify the picketing. I find that by picketing the Hilton Hotel on April 1, Local 31 induced the employ- ees of CBS to cease work, with an object of forcing the employers there-Osprey and CBS-to cease doing busi- ness with one another or with NBC, and thereby violated Section 8(b)(4)(i)(B) of the Act, as alleged in the complaint. I also find that the Respondent Local 31 violated Section 8(b)(4)(ii)(B) by its pickets telling Schneider, and Davis telling the Mutual of Omaha lawyer, Local 31 would keep on picketing to stop whatever work was going on in the hotel. The real defense here, not openly conceded at the hear- ing, is that the picketing was a mistake and should there- fore be excused. Had NABET not unlawfully picketed CBS only 5 days later, had Local 31 removed its pickets immediately upon hearing from Schneider that there were no NBC employees at the Hilton and that no NBC work was being done there, had Davis the first,time the Mutual of Omaha lawyer called in protest confessed error, the de- fense might appear in a different light., In the circum- stances of this case, I find no merit in this defense. NABET misconceives the purport of the statutory proscription un- derlying this case. The Act does not say you may, picket whenever you wish, and against any employer you wish, and continue picketing while you inquire and determine- in your own judgment-whether you have a right to do such picketing.5 It says you may not picket a neutral em- ployer at all. Particularly is this plain statement of the law warranted in an industry, such as TV broadcasting, where time is of the essence. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER6 The Respondents, National Association of Broadcast Employees and Technicians , AFL-CIO, and its Local No. 5 Reynolds, an elected member of the Local 31 executive board , testified that when first advised of his union's picketing at the Hilton Hotel, his response was "Wonderful " 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 NATIONAL ASSN. OF BROADCAST EMPLOYEES 31, Washington D.C., their officers, agents, and representa- tives, shall: 1. Cease and desist from inducing or encouraging any individual employed by CBS, Osprey Productions , Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, arti- cles, materials, or commodities or to perform any services; or threatening, coercing, or restraining the said persons, or any other persons engaged in commerce or in an industry affecting commerce , where in either case an object thereof is forcing or requiring any of the above or any other per- sons to cease doing business with NBC. 2. Take the following action necessary to effectuate the policies of the Act: (a) Post at their offices and meeting halls copies of the attached notice marked "Appendix." Copies of said no- tice, to be duly furnished by the Regional Director for Re- gion 5, after being signed by authorized representatives of the two Respondents, shall be posted immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to their members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies to the Regional Di- rector for Region 5, for posting by CBS and Osprey Pro- ductions, Inc., in their Washington locations , such employ- ers being willing, at all places where notices to their employees are customarily posted. 7 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order 645 (c) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individual employed by CBS Osprey Productions Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form any services ; or threaten, coerce, or restrain said persons, or any other persons engaged in commerce or in an industry affecting commerce , where in either case an object thereof is forcing or requiring any of the above or any other persons to cease doing business with NBC. NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO NATIONAL ASSOCIATION OF BROADCASTING EMPLOYEES AND TECHNICIANS, AFL-CIO, LOCAL 31