Locals 27 and 48, Moving Picture Machine Operators

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Locals 27 and 48, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL- CIO and CBS, Inc. and Local 1212, International Brotherhood of Electrical Workers (IBEW) AFL- CIO. Case 8-CD-327 December 9, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following the filing of a charge on April 2, 1976, by CBS, Inc., the Employer (hereafter the Employer or CBS), alleging that Locals 27 and 48, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO (hereafter Locals 27 and 48), have violated Section 8(b)(4)(D) of the Act, by engaging in certain proscribed activities with the object of forcing or requiring CBS to assign disputed work to members of Locals 27 and 48 rather than to employees of CBS who are represented by Local 1212, International Brotherhood of Electrical Work- ers (IBEW) AFL-CIO (hereafter Local 1212). Pursuant to a notice of hearing, a hearing was conducted before Hearing Officer Charles Z. Adam- son on May 5, 1976. All parties appeared at the hearing and were afforded a full opportunity to be heard and to present evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the basis of the entire record in this case, including the briefs of CBS and Locals 27 and 48, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER CBS is a New York corporation with its principal office in New York, New York. It is engaged in interstate communication by radio and television, as well as other enterprises, and derives an annual gross revenue income therefrom in excess of $1 million. Annually, in the course and conduct of its business operations, CBS receives, in New York State, materi- als valued in excess of $50,000 directly from points 227 NLRB No. 8 located outside the State of New York. The parties stipulated to these facts and, on the basis thereof, we find that CBS is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED All parties stipulated, and we find, that Locals 27 and 48 and Local 1212 are labor organizations within the meaning of Section 2(5) of the Act. III. EVIDENCE A. The Work in Dispute The disputed work involves the unloading of CBS equipment from CBS mobile units or trucks, the carrying of equipment into the Coliseum in Richfield Township, ' Ohio, and the installing of "running" of temporary cable to such equipment. B. Background The Coliseum, the site of the instant dispute, is located in Richfield Township, Ohio, near the city of Cleveland. A subsidiary of ITT Inc. has been in charge of the Coliseum's operations since its opening in October 1974 and has, since on or about that time, been signatory to a contract with Locals 27 and 48 for a unit of maintenance employees at the -Coliseum. This contract provides that employees represented by Locals 27 and 48 will carry television cables, camera heads, and related equipment to and from the Coliseum. CBS is a party to a collective-bargaining agreement with Local 1212 which provides that technicians represented by the IBEW are entitled to perform this type of work for CBS. Although the most recent contract had expired prior to the hearing herein, the parties operated under an extension of that agree- ment through May 1976. According to the contract, work such as that in dispute must be performed by IBEW technicians within a 200-mile radius of a CBS owned and operated station. CBS has the option of using IBEW technicians at locations outside the 200- mile radius. CBS has, as a practice, assigned the work to its IBEW technicians outside the 200-mile radius. CBS was scheduled to telecast two National Bas- ketball Association (NBA) games from the Coliseum on April 10 and 17, 1976. CBS employees and equipment arrived at the Coliseum about 2 days prior to each telecast for the purpose of unloading and installing equipment. Several weeks prior to the April 10, 1976, telecast, CBS in accordance with its past practice assigned the disputed work to its own employees who are members LOCALS 27 AND 48, MOVING PICTURE MACHINE OPERATORS 143 of Local 1212. On or about March 31, 1976, the assistant CBS director of labor relations, Thomas G. Holland, became aware, by virtue of a conversation with Martin J. Murphy, CBS's field operations engineer, that Locals 27 and 48 claimed jurisdiction over the unloading, carrying, and installing of certain CBS equipment and cables. Holland telephoned Adrian Short, Jr., business manager for Local 27, and advised Short that CBS had assigned the disputed work to its own employees who are represented by Local 1212. Short claimed the work for Locals 27 and 48 and pointed to their contract with the Coliseum. Short told Holland he would contact IATSE Interna- tional president, Walter Diehl, regarding this dispute. Later that day, Short telephoned Holland and in- formed him that he was speaking on behalf of Locals 27 and 48 as well as the International Union and threatened that, if the work in dispute were not assigned to employees represented by Locals 27 and 48, CBS would not be permitted to enter the Coliseum and, if CBS did gain access, it would not receive the electrical power requisite for the telecast. Electric power hookups are made at the Coliseum by an electrician who is represented by Locals 27 and 48. On April 7, 1976, the Board obtained a temporary restraining order prohibiting Locals 27 and 48 from interfering with CBS's telecast. The game was tele- vised as scheduled. On or about April 15, 1976, CBS employees and equipment arrived at the Coliseum to prepare for a telecast of an NBA game on April 17. On April 16, another temporary restraining order was obtained and the game was televised as scheduled. C. The Contentions of the Parties The Employer contends, with Local 1212 in agree- ment,) that Locals 27 and 48 violated Section 8(b)(4)(D) of the Act by threatening to refuse CBS access to the Coliseum and to withhold necessary services unless members of Locals 27 and 48 were assigned the disputed work. CBS contends that the disputed work should be awarded to its employees who are represented by Local 1212 because the equipment used in telecasting from a remote location is delicate and expensive and employees of CBS are highly trained and familiar with the equipment. CBS further urges that industry practice and its contract with Local 1212 support its position and notes that in a recent case involving a similar situation the work in dispute was awarded to Local 1212.2 I Local 1212 did not file a brief However, Vincent Bartilucci, business manager of Local 1212, testified at the hearing that the members of Local 1212 want to perform the work and have done so in the past 2 Local 84, International Alliance of Theatrical Stage Employees (CBS, Inc ), 218 NLRB 1312 (1975) Locals 27 and 48 base their claim to the disputed work on their contract with the Coliseum and the past practice of their members performing the work at the Coliseum and other such facilities in the area. They assert that efficiency considerations warrant the awarding of the work to employees represented by them and contend that the prior Board case relied on by the Employer and Local 1212 is inapplicable largely because in this case, unlike the prior case, CBS is not contractually bound to award the work to Local 1212. All parties stipulated that there was no agreed-upon method for resolving this dispute. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The uncontradicted and undisputed testimony discloses that on or about March 31, 1976, Locals 27 and 48 threatened to deny CBS employees access to the Coliseum and/or withhold power necessary for running their equipment unless CBS agreed to use members of Locals 27 and 48 for the disputed work. Accordingly, since Locals 27 and 48 claimed the work for their members and threatened CBS with a denial of services to force an assignment of the disputed work to members of Locals 27 and 48, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors. We find the following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreements Local 1212 has been the certified representative of the CBS employees involved herein3 since February 14, 1952. CBS has a collective-bargaining agreement with Local 1212 in effect4 which specifically gives jurisdiction of the disputed work to Local 1212 technicians. The provisions of the contract are 3 The record evidence does not substantiate the contention made by Locals 27 and 48 that the disputed work, in fact, was performed by employees other than those represented by Local 1212 4 At all times material to this case , Local 1212 and CBS were operating under an extension of the collective-bargaining contract 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicable within a 200-mile radius of a CBS owned and operated station. Outside of that radius, CBS has the option, which it,-. has -regularly exercised, of assigning the work to members of Local 1212. If the work is, in fact,- assigned to members of Local 1212; the remainder -of the contract is applicable to those.. employees. Locals 27 -and 48 do not have a contract with CBS, or any - other - arrangement, but they ' do - -have a contract with the-management of the Coliseum. This contract, in- relevant part„provides=that-the work in dispute shall be performed by Locals 27 'and 48. Work of the type in dispute has been performed at the Coliseum in the pastt'by Locals 27 and 48 for both NBC and ABC. Moreover, members of Locals 27 and 48 performed work of this nature at other arenas in the Cleveland area both before and after the opening of the Coliseum. From, the record evidence it is clear that CBS was the employer in control over the manner and means by which the telecastwas to be made. It is also clear that once CBS follows its practice of awarding work outside the 200-mile' radius to members of Local 1212, CBS's collective-bargaining agreement with Local 1212 ' becomes effective and establishes the latter's jurisdiction over the work by virtue of the explicit language therein. Thus, to the extent that the collective-bargaining agreement becomes operative in situations' outside the 200-mile radius, as here, we find it to be ?a factor favoring- an award of the disputed work' to the employees of the Employer represented by Local 1212. 2. Employer and industry practice As noted supra, the record discloses that the Employer has an established practice of awarding the disputed work to members of Local 1212 both inside and outside the 200-mile radius. Industry practice also indicates that other television networks use their own technical employees to perform the work in dispute, except where the collective-bargaining agree- ment specifically states that the work may be assigned to other than in-house employees. We therefore find that employer past practice as well as industry practice favors an award of work to the employees of CBS represented by Local 1212. 3. Skills and efficiency of operations Locals 27 and 48 contend that considerations of efficiency warrant awarding the disputed work to their members, in this regard, they highlight testimo- ny that fewer - employees would be necessary to perform the work were the disputed tasks awarded to their members. However, the record also discloses that, if the work were awarded to members of Locals 27 and 48, the employees of the Employer would be idle for the period of time necessary to complete the work although the Employer would be required to pay them. Furthermore, the record establishes that a major concern of CBS is the proper care and use of its highly specialized' and expensive broadcast equip- ment. Thus, it utilizes crews composed of technicians to perform this work. Undisputed testimony indicates that the Local 1212 technicians are highly skilled in both maintaining and repairing the equipment in- volved. We find therefore that the technical employ- ees of CBS possess the necessary skills to perform the work. Although there is no contention that members of Locals 27 and 48 are not sufficiently skilled to do the work, in view of the specialized nature of the - equipment involved and the demonstrated skills and training of CBS employees to do the work, this factor favors an award of the disputed work to the employ- ees of the Employer. 4. Employer preference The record clearly establishes that CBS would prefer to assign the disputed work to employees represented by Local 1212. This factor, while not determinative, tends to favor an award of the work to employees represented by that labor organization. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the employees-of the Employer, CBS, represent- ed by Local 1212, are entitled to perform the disputed work. In reaching this conclusion, we have relied on the Employer's assignment of the disputed work to its own employees, the fact that this assignment is consistent with the Employer's past practice and industry practice, the collective-bargaining agree- ment between CBS and Local 1212, and the skill, experience, and efficiency of the Employer's crew- members in the handling, maintenance, and repair of the pertinent equipment. This assignment is to the employees of CBS represented by Local 1212 but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of CBS, Inc., represented by Local 1212, International Brotherhood of Electrical Work- ers (IBEW) AFL-CIO, are entitled to perform the LOCALS 27 AND 48, MOVING PICTURE MACHINE OPERATORS 145 following work at the Coliseum in Richfield Town- ship, Ohio: the unloading of CBS equipment from CBS mobile units or trucks, the carrying of such equipment into the Coliseum, and the installing or running of temporary cable to such equipment. 2. Locals - 27 and 48, International Alliance of Theatrical Stage Employees, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work, or any part thereof, to its members or to employees it represents. 3. Within- 10 days from the date of this Decision and Determination of Dispute, Locals 27 and 48, International Alliance of Theatrical Stager Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether or not they will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the disputed work in a manner inconsistent with this determination.