International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (Metromedia, Inc.)

DECISIONS OF NATIONAL I.ABOR RELATIONS HOARD International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada and Metromedia, Inc. and National Association of Broadcast Employ- ees and Technicians, AFL-CIO. Case 31-CD- 222 February 23, 1982 DECISION AND DETERMINATION OF DISPUTE BY MI-MBERS JENKINS, ZIMMERMAN, AND HUN I IR This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Metromedia, Inc., herein called the Employer, alleging that International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, herein called IATSE, violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by IATSE rather than to employees represented by National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, herein called NABET. Pursuant to notice a hearing was held before Hearing Officer Robert H. Lachmund, Jr., on June 30 and July 13, 1981. All parties appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereaf- ter, the Employer, IATSE, and NABET filed briefs. 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 reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPIOYIER The parties stipulated, and we find, that the Em- ployer is a Delaware corporation engaged in the operation of 6 television stations and 12 radio sta- tions in the States of New York, California, Penn- sylvania, Maryland, Michigan, Illinois, Minnesota, Kansas, and Ohio, and in the District of Columbia. The Employer's principal place of business is locat- ed in New York, New York. The Employer's annual gross revenues derived from operating said 260 NLRB No. 52 radio and television stations is in excess of $500,000. Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act; it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; and it will effec- tuate the policies of the Act to assert jurisdiction herein. 11. THEI. LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, and National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer owns and operates television sta- tion KTTV in Los Angeles, California. Its oper- ations are divided into several departments, includ- ing the news department and the engineering de- partment. The employees in the former department are represented by IATSE. The employees in the latter department are represented by NABET. The history of this dispute began in 1975 when the Employer purchased and began utilizing for news-gathering work a portable hand-held elec- tronic videotape camera, commonly referred to as the minicam. It assigned all news-gathering work involving the minicam to cameramen represented by IATSE. Prior to the introduction of the mini- cam, these same employees had performed essen- tially all news-gathering work for the Employer with film cameras. After the Employer announced its intention to assign the work of operating the minicam for news- gathering purposes to the IATSE-represented em- ployees, NABET claimed that employees it repre- sented should be assigned the work in question. The NABET employees have traditionally operat- ed the large, studio-type electronic cameras that KTTV used in programming. They usually work in the studio, although occasionally they have been dispatched to various remote locations to cover live such prescheduled events as sporting events or election returns, or to cover live ongoing news sto- ries such as disasters. NABET contended that em- ployees it represented were entitled to the work because of their experience in operating electronic cameras. IATSE, however, asserted that the work should be assigned to employees it represented be- cause of their expertise in news gathering. 424 IATSE As a result of IATSE's threat to take economic action against the Employer should the work in question be assigned to NABET, a 10(k) proceed- ing was initiated by the Employer and a hearing was held in March, April, and May 1976. Because of their special skill as photojournalists, as well as considerations of economy, efficiency, and employ- er preference, the Board concluded that the work was properly assigned to the IATSE-represented cameramen. ' On June 6 and again on November 6, 1978, the Employer assigned certain of its IATSE camera- men to cover election eve news at the headquarters of various political candidates. The cameramen used minicams, which are capable of both video- taping and transmitting live audio and visual sig- nals. On the nights in question, the cameramen per- formed both live broadcasting and videotaping. The actual live air time amounted to no more than a total of a few minutes. NABET subsequently filed grievances, claiming the work involving the live coverage. A similar grievance was filed by NABET following the election coverage on June 3 and on November 4, 1980. The Employer contend- ed that the work in question was covered by the Board's earlier 10(k) award and filed an unfair labor practice charge against NABET because of its attempt to compel arbitration of the grievances. The Board dismissed the resulting 8(b)(4)(A) complaint, holding that its previous 10(k) award did not clearly address the allocation of live broad- casting work and therefore the parties were not prohibited from negotiating on the subject. 2 Fol- lowing the Board's decision, IATSE, by letter dated April 24, 1981, threatened economic action against the Employer should it reassign the live election coverage work to employees represented by NABET. That letter gave rise to the present proceeding. B. The Work in Dispute The work in dispute concerns the operation of portable hand-held electronic cameras for live transmission of election eve coverage. C. The Contentions of the Parties The Employer assigned the disputed work to cameramen represented by IATSE, claiming that the assignment falls within the Board's prior 10(k) award. The Employer states that in the prior case the Board had before it evidence that the minicam was capable of being used for live as well as taped i International Alliance of theatrical Stage Employees and Moving Pic- ture Machine Operators of the United States and Canada (Mielronmedia, Inc.) 225 NLRB 785 (1976) (hereinafter referred to as Metromedia I) 2 National Association of Broadcast Fmplovees and technicians. AFlL CIO. CLC (Metromedia. Inc ). 255 Nl.RH 372 (1981) coverage, and was aware that NABET-represented employees had been used in the past for live elec- tion coverage. It therefore contends that the Board's award was made without limitations or dis- tinctions between the use of the minicam for live or taped news-gathering work. In the alternative, the Employer argues that, even assuming the dis- puted work was not encompassed within the Board's original award, a review of the relevant factors establishes that live election night coverage was properly assigned to employees represented by IATSE based on considerations of economy, effi- ciency, and skills involved. Specifically, the Employer contends that, if the work assignment is changed, it will have to utilize two separate camera crews for election eve cover- age: One represented by IATSE for minicam vi- deotaping and the other represented by NABET for minicam live transmission. It argues that, under the existing assignment, IATSE-represented em- ployees can and do perform both functions utilizing the same minicams. As for skills, the Employer points out that the photojournalistic skills of the IATSE cameramen were a critical factor in the Board's previous 10(k) award in favor of those em- ployees. It thus contends that, since the use of the minicam for live broadcasting does not in any way require a different skill than is required of the pho- tojournalist in using the minicam for taping a news story, such skills support its assignment in the in- stant dispute. IATSE agrees with the assignment for the same reasons espoused by the Employer. NABET claims that the assignment to operate the minicam for live election coverage is not the same as an assignment to gather news on video- tape, and that the current work dispute was not re- solved by the first 10(k) case. It contends that its engineers are entitled to the disputed work, citing its certification, its collective-bargaining agreement with the Employer, and the fact that prior to June 6, 1978, live election eve coverage was performed exclusively by NABET engineers. NABET has moved to quash the notice of hearing in the present case, claiming that there is no evidence of 8(b)(4)(D) activity, and further claiming that the parties have agreed upon a method for the volun- tary adjustment of the dispute. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a method for the voluntary adjustment of the dis- pute. At the hearing, counsel for NABET moved to quash the notice of hearing, claiming that no juris- dictional dispute exists for the following reasons: (1) there is no evidence of 8(b)(4)(D) activity, as the letter sent to the Employer by IATSE is insuf- ficient to establish that the Employer was threat- ened or coerced by IATSE; and (2) there is an agreed-upon method for settling the dispute. As noted above, after the Employer utilized cer- tain of its IATSE cameramen for live election cov- erage, NABET filed grievances protesting the as- signment. Thereafter, NABET filed a complaint in a United States district court for an order to re- quire the Employer to arbitrate the work assign- ment dispute, and subsequently moved for sum- mary judgment in said court. In response, counsel for IATSE sent a letter to the Employer threaten- ing economic action against the Employer should it reassign the disputed work. The letter stated: In the event that the assignment is changed on the work involved, specifically the operation of the Minicam on election night from the I.A.T.S.E., then the I.A.T.S.E. will take action including strike and other economic action against Metromedia. Thereupon, the Employer filed an unfair labor practice charge under Section 8(b)(4)(D) of the Act. NABET claims that IATSE made no real threat to engage in economic action if the Employer changed its original assignment of the work, as IATSE-represented employees had already been assigned to perform the work. However, the Board has found that an 8(b)(4)(D) charge was supported under similar circumstances, where a union in- formed an employer that it would take economic action if the employer reassigned the work pursu- ant to a rival union's claim. 3 Based on IATSE's letter and the record as a whole, we find that an object of IATSE's action was to force the Employ- er to continue to assign the disputed work to indi- viduals represented by IATSE. We are satisfied that there is reasonable cause to believe that IATSE has violated Section 8(b)(4)(D). NABET further contends that a tripartite arbi- tration proceeding, which it anticipates the United States district court will order, constitutes a volun- tary method of adjustment binding on all the par- ties. The proceeding to compel arbitration is cur- rently pending in the United States district court. 3 International Photographers Local 659, affiliated with International /li- ance of Theatrical Stage Employees and Moving Picture M 1 achine Operators of the United States & Canada, AFL-CIO (King Broadcaiting (ompunvL 216 NLRB 860 (1975). All three parties are litigants in said proceedng. NABET's contention is based upon its assumption that the court will issue an order for tripartite arbi- tration. Even if the court had already ordered a tri- partite arbitration proceeding, we are of the opin- ion, as the Board stated in its earlier decision, 4 that court-ordered arbitration is less than a voluntary method of settling the dispute in light of IATSE's opposition to that forum. Therefore, we find no merit in this contention. 5 It is clear from the foregoing, and we find, that at the time of the instant dispute there did not exist any agreed-upon or approved method for the vol- untary adjustment of the dispute to which all the parties of the dispute were bound. After considering the contentions of the parties and the evidence with respect thereto, we find that the Board is not precluded from making a determi- nation in this proceeding, tha: there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute as de- scribed above is properly before the Board for de- termination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors.6 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case. 7 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining contracts and certifications In the prior 10(k) case, the Board held that the certifications of both Unions were of little value in determining the merits of the dispute since both certifications predated the use of the minicam. 8 This holding is equally applicable to the instant work dispute. Both Unions presently have collective-bargaining agreements with the Employer. Section 1.07 of IATSE's contract provides: "The jurisdiction of 4 M1etromnedia I. vupra at 788 5 Furthermore, neither (of the collective-hargaining agreements which the Employer has with IATSE and with NABET provides for tripartite arbitration And neither Union is bound hy the other's arbitration provi- sion in Iheir respcctive contracts See Providence Stereotyperi Union AVo. 53 (7he Providence Journal Company), 216 NLRB 535 (1975) NRI..B. v Radio & lilehwoion Broadcast Engineerr Union, Local 1212. International Brotherhood oj' Electrical Workers. AFL-CIO IColurn- bia Broodcasting System]. 364 U.S 573 (1961) 7 International issociation fi Machinists. Lodge No. 1 743. AIL-C'IO (J A. Jone(s Contruction (Company), 135 NI RB 14)2 (1962). .lMitromedlia 1, apra at 788 426 IATSE the employees covered hereunder shall be all news and news documentary work produced by and for KTTV News Department...." The agreement is in effect from 1979 to 1982, and is entitled "KTTV News Department Agreement." Section 6.02 of NABET's contract states that its trade jurisdiction includes the "operation . . . of (i) technical and engineering operational equipment for broadcasting...." NABET contends that the minicam when used for live broadcasting is equip- ment within that language. However, even assum- ing that this contention is correct, any such agree- ment between NABET and the Employer would be inconsistent with the agreement with IATSE, which provides that IATSE's jurisdiction "shall be all news and news documentary work...." We are of the opinion that the respective con- tracts for both IATSE and NABET are, at best, conflicting, and we find that they are of little value in determining this dispute. 2. Area, craft, and industry practice In its prior 10(k) decision the Board stated that area, craft, and industry practice was of little help in assigning the disputed work, since there was a mixed practice in the industry. The Board found that the major networks assign the operation of the minicam to NABET engineers, but that this prac- tice is offset by the practice of nine independent stations on the west coast, where IATSE camera- men operate the minicam.9 In the instant proceed- ing there was no new testimony offered on this factor, and therefore we find it of little help in as- signing the disputed work. 3. Employer practice Prior to June 6, 1978, live election eve coverage was performed by NABET-represented employees utilizing large fix mount cameras and, in some in- stances, large hand-held cameras which were the precursor of the electronic minicam. Prior to June 6, 1978, IATSE-represented employees were only involved in videotaping of election eve events and did not perform live transmission functions. Thus, while the Employer's past practice was to assign live election eve coverage to NABET-repre- sented employees, such practice did not include op- eration of the minicam, which is the equipment in- volved in this dispute. Accordingly, we find that the Employer's past practice is of little help in de- termining this dispute. 9 Metromedia I. tupra at 789 4. Job impact The current assignment of the disputed work to IATSE employees results in the loss of some work to employees represented by NABET. However, this loss is de minimis as it represents no more than a few hours on one to two evenings every other year. t 0 If NABET engineers were assigned the disputed work, there would be no loss of work for the IATSE cameramen. This is because said camera- men are entitled to perform the minicam videotap- ing on election eve. Thus, we find that this factor does not favor an award of the disputed work to either group of em- ployees. 5. Economy and efficiency Under the current work assignment, IATSE-rep- resented employees operate the minicam for both videotaping and live transmission of election eve coverage. The Board's prior 10(k) award estab- lished that IATSE-represented employees are enti- tled to perform the former. ' In light of this, it is clear that if the work asignment is changed the Employer will have to utilize two separate camera crews for election eve coverage: An IATSE crew for minicam videotaping, and a NABET crew for minicam live transmission. In that the actual live air time amounts to no more than a total of a few minutes, the inefficiency of having a separate crew for live coverage is self-evident. We therefore con- clude that the factors of economy and efficiency favor an award of the disputed work to employees represented by IATSE. 6. Skills The special photojournalistic skills of the IATSE news cameramen was a critical factor in the Board's original determination. 12 The Board stressed that the fast-breaking news events for which the Employer planned to utilize the minicam required that the cameraman operating the mini- cam possess such skills. In the instant case, the record establishes that photojournalistic skills are "' On the four nights that the Employer utilized the minicam for live election eve coverage. the cameramen worked at most a 7-hour shift On said nights, the Employer assigned two IATSE employees to operate the minicam and one NABET engineer Ito monitor the hve transmissions rhe latter assignment was made because IATSE personnel do not have the skills to insure a proper signal acceptable for broadcast Thus, NABET contends. under Ihe present assignment. three persons are neces- sars for Ihsr election coierage, whereas only two would he needed if the) werc both NAHET engineers Accepting this argument as correct. II becomes apparent that the current work assignment results in NABET employees loling only a 7-hour shift on tIuo evenings every other year, or a toital of 7 hiours a sear M e ,%tromrinedu I tuprua at 791 m2 ,Ife tro tedlu 1. upra at 7qi 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of equal importance regardless of whether the min- icam is being used for taping or live broadcasting. As such, we conclude that the skills possessed by employees represented by IATSE favor an award of the work in dispute to them. 7. Employer preference After consideration of all the relevant factors, the Employer assigned the work of operating the minicam for live transmission of election coverage to employees represented by IATSE. The record indicates that the Employer is satisfied with the re- sults of the assignment and maintains a preference for an assignment of the work to IATSE person- nel. Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors involved, we conclude that employees represented by IATSE are entitled to the disputed work, and we shall de- termine the dispute in their favor. Where skills, economy, and efficiency favor an assignment of the work to IATSE-represented employees, and where the Employer is satisfied with and continues to prefer the assignment, we must conclude that an assignment of the work to employees represented by IATSE is warranted. 3 In making this determination, we are assigning the disputed work to employees employed by the Employer and represented by International Alli- ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, but not to that Union or its members. The present determination is limited to the particu- lar controversy which gave rise to this proceeding. 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 hereby makes the following Determination of Dis- pute: Employees of Metromedia, Inc., Los Angeles, California, who are currently represented by Inter- national Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada are entitled to perform the work of operating portable hand-held electron- ic cameras for live transmission of election eve coverage. ':' In view of Ihis conclusion. we find it unnecessary to decide whether or not the instant work in dispute falls within the Board's prior 1(Xk) award in ML;ctro medu I. 428