Nabet, AFL-CIO, CLC

NABET, AFL-CIO, CLC National Association of Broadcast Employees and Technicians, AFL-CIO, CLC (NABET) and Metromedia, Inc. and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (IATSE). Case 31-CD-173 June 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge duly filed on September 8, 1976, and amended on September 10, 1976, by Metrome- dia, Inc., hereinafter called Metromedia or the Employer, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint and notice of hearing on September 23, 1976, against National Association of Broadcast Employees and Technicians, AFL- CIO, CLC, hereinafter called NABET or Respon- dent. The complaint alleges that Respondent had engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the National Labor Relations Act, as amended. In substance, Respondent is alleged to have violated the Act by threatening a strike and refusal to handle and process videotape produced by Metromedia's minia- ture electronic videotape camera (herein called the minicam) when such camera and related equipment are operated by employees represented by Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, hereinafter called IATSE. The complaint alleges that Respondent has failed and refused to honor or abide by the Board's Decision and Determination of Dispute,l in which the Board awarded the work of newsgathering by use of the minicam to Metromedia's employees represented by IATSE. The complaint further alleges that an object of Respondent's conduct has been, and is, to force or require Metromedia to assign the operation of the minicam to employees who are members of, or represented by, Respondent, rather than to Met- romedia's employees who are members of, or represented by, IATSE. On September 29, 1976, Respondent filed an answer denying the commission of any unfair labor practices. On January 13 and 14, 1977, Metromedia, Respon- dent, IATSE, and the General Counsel entered into a motion to transfer proceedings to the Board and stipulation of facts. The parties agreed to waive a I International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (Metromedia, Inc.), 225 230 NLRB No. 7 hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's decision, agreeing to submit this proceeding directly to the Board for findings of fact, conclusions of law, and order. The parties stipulated that the entire record before the Board in this matter, in addition to their formal stipulation and the exhibits thereto, should consist of the following: (a) the charge and amended charge; (b) the complaint and notice of hearing; (c) answer to the complaint; (d) the official transcript and exhibits of the 10(k) proceeding in Case 31-CD- 161; and (e) the Board's Decision and Determination of Dispute in Case 31-CD-161. On March 2, 1977, the Board approved the stipulation of the parties and ordered the proceeding transferred to the Board, granting permission for the filing of briefs. Thereafter, all the parties filed briefs in support of their respective positions.2 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. Upon the basis of the stipulation and exhibits thereto, the briefs, and the entire record in this case, the Board makes the following: Findings of Fact 1. THE BUSINESS OF THE EMPLOYER Metromedia, Inc., is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. Metromedia maintains its office and principal place of business in New York, New York, where it is engaged in the operation of 12 radio and 6 television broadcasting stations in 10 States, includ- ing television station KTTV in Los Angeles, Califor- nia. Metromedia's annual gross revenues derived from the operation of said radio and television stations is in excess of $500,000. The parties stipulated, and we find, that Metrome- dia, Inc., is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Respon- dent National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and NLRB 785 (1976). This decision will hereinafter be referred to as Case 31- CD-161. 2 In lieu of filing a brief, IATSE requested that the Board refer to the brief it filed in the 10(k) proceeding in Case 31 CD-161. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Canada, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On January 6, 1976,3 Metromedia filed a charge against IATSE in Case 31-CD-161 alleging that IATSE had violated Section 8(bX4)(D) of the Act by engaging in certain conduct with an object of forcing or requiring Metromedia to assign the operation of the minicam to employees represented by IATSE rather than to employees represented by NABET. 4 Pursuant to Section 10(k) of the Act, a hearing was duly held in which all parties, including NABET, fully participated. On July 30, the Board issued its Decision and Determination of Dispute.5 The Board concluded, after assessing all relevant factors, that Metromedia's employees represented by IATSE "were entitled to perform the work of newsgathering by use of the Akai electronic camera [minicam]." 6 As more fully described in that decision, the Board rejected certain contentions made by NABET that the notice of the 10(k) hearing should be quashed. Chief among those contentions, which has continued relevance in the present proceedings, was NABET's assertion that there existed a voluntary method of adjustment of the dispute which was binding on all the parties. In this regard, NABET cited an order of the United States District Court for the Central District of California directing that a tripartite arbitration proceeding be conducted. 7 However, we determined that the court-ordered arbitration was not a voluntary method of adjusting the dispute, noting that IATSE's appeal of the court order indicated its lack of consent to be bound by the arbitration award, and further noting that neither of the collective-bargaining contracts between Met- romedia and IATSE and NABET, respectively, provides for tripartite arbitration. On August 3, the Regional Director for Region 31 dismissed the charge against IATSE in Case 31-CD- 161.8 On August 23, Metromedia filed with the district court a motion for rehearing to determine whether the court would, in view of the Board's Decision and Determination of Dispute, dissolve or 3 All dates are in 1976 unless otherwise indicated. 4 Metromedia initially assigned the operation of the minicam to employees represented by IATSE. NABET filed a grievance protesting the assignment. IATSE responded with a letter threatening to take economic action if the assignment to its members were changed. I Metromedia, Inc., supra, fn. I. 6 The Employer had assigned the work of editing the videotape produced by the minicam to employees represented by NABET. This work was not then, and is not now, in dispute. I NABET originally requested that the court issue an order compelling arbitration between it and Metromedia to resolve NABETs grievance. vacate its order compelling tripartite arbitration. A copy of said motion was sent to NABET. On August 24, NABET's attorney sent a letter to Metromedia, pertinent portions of which are as follows: I have received copies of documents filed . . . on behalf of Metromedia, Inc., seeking orders of the United States District Court either vacating or staying its order compelling arbitration.... You are hereby placed upon notice that in the event any order is made by the District Court, or any other court, which adversely affects the commencement of this arbitration hearing on October 13, 1976, or if for any reason Metrome- dia seeks to further delay this arbitration, or fails to appear at said arbitration, NABET will immediately strike and refuse to handle and process any and all videotape produced by the mini-camera when such camera and videotape equipment is operated by an employee or employ- ees represented by a union other than NABET. . . . [Y]our conduct in seeking to vacate or stay the order compelling arbitration. . . is a step NABET cannot tolerate without taking the steps indicated above. The charge giving rise to the present proceeding, based upon the letter quoted above, was filed against NABET by Metromedia on September 8. On October 12, the district court vacated its order compelling tripartite arbitration and continued in effect its previous order which stayed the arbitration between NABET and Metromedia over NABET's grievance. B. Contentions of the Parties NABET asserts that the complaint in this case should be dismissed, citing several reasons in support of this contention. Initially, NABET contends that, pursuant to the Board's Rules and Regulations, Series 8, as amended, a 10(k) hearing must be held on the present charge against it. NABET asserts that the Board has no authority to proceed with an unfair labor practice proceeding in the absence of such a Bipartite arbitration was so ordered. Metromedia subsequently requested that the court compel a consolidated arbitration of the work assignment dispute under its respective contracts with NABET and IATSE. The court ordered tripartite arbitration and stayed the bipartite proceeding previously ordered. s The dismissal of the charge was pursuant to Sec. 102.91 of the Board's Rules and Regulations, Series 8., as amended. This section provides that the charge will be dismissed where the Board determines that employees represented by the charged union (in this case, IATSE) are entitled to perform the work in dispute. 76 NABET, AFL-CIO, CLC hearing. NABET claims that the Board is not entitled to rely on its decision in Case 31-CD-161 as a basis for issuing the present complaint alleging the commission of an unfair labor practice by NABET, as it was not the union against whom charges had been filed in that case. It is contended that such reliance would be proper in further unfair labor practice proceedings only if NABET were the charged union and then only if it refused to comply with the Board's award. NABET further argues that its letter of August 24 was not a threat within the meaning of Section 8(bX4)(D), as it was not an attempt to force a reassignment of the disputed work. Rather, NABET urges that its letter was a lawful request for arbitration pursuant to its contract with Metromedia and pursuant to the court's arbitration order. NABET claims that it was lawful to threaten a strike if the Employer failed to fulfill its contractual obligation to arbitrate NABET's grievance. The General Counsel argues, contrary to NABET, that there is no requirement in the Board's Rules and Regulations that a second 10(k) hearing be conduct- ed to resolve the same dispute. The General Counsel analogizes this case to cases in which the Board has held that, where an unfair labor practice is based upon a union's noncompliance with the Board's award after a 10(k) hearing, such award and the merits of the dispute are not open to review in the related unfair labor practice proceeding. Thus, the General Counsel contends that NABET is bound by the Board's award in Case 31-CD-161, noting that NABET was a party to those proceedings and participated fully therein. Furthermore, according to the General Counsel, a new hearing would be futile, not only because the Board would be bound by its prior award, but also because NABET and the other parties stipulated that there was no new evidence to present other than the August 24 letter, which is in evidence before the Board as part of the parties' stipulation. Additionally, the General Counsel asserts that NABET's August 24 letter is indeed a threat to strike contingent upon the Employer's continued assign- ment of the operation of the minicam to employees represented by IATSE. Assuming arguendo that the letter was designed to force the Employer to submit to arbitration, the General Counsel claims that a threat within the meaning of Section 8(b)(4)(D) is present, as the Board had already issued its award of the work, and by attempting to pressure the Employer to assign the work to its members until the 9 Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Vibroflotation Foundation Company), 203 NLRB 381 (1973). '° Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, A FL- CIO (L & K Contracting Company), 190 NLRB 346 (1971). arbitration process was completed, as well as by attempting to force the Employer to submit to arbitration in the face of the Board's award, NABET was seeking to undermine the Board's superior authority to resolve jurisdictional disputes, thus evidencing an intention not to be bound by the Board's award. The Employer agrees with the arguments of the General Counsel and reiterates the position that a second 10(k) hearing would be pointless. The Employer claims that NABET is continuing to demand arbitration of a dispute that has already been settled. C. Analysis and Conclusions We are of the opinion that to conduct a second 10(k) hearing in this case would be an exercise in futility. At the outset, there is no requirement in the Board's Rules and Regulations that a second hearing be held to determine the merits of a dispute that has already been decided by the Board. Additionally, the parties, including NABET, have stipulated that, if a new hearing were held, they would have no new evidence to introduce, save for NABET's letter of August 24. The parties have stipulated to the existence of that letter and to the fact that it is the only activity which has occurred since the Board's issuance of its decision in Case 31-CD-161 which would have any effect on that decision. We have consistently held that, in the absence of newly discovered evidence, the Board's award of work in a 10(k) proceeding is not open to review by an Administrative Law Judge in a related unfair labor practice proceeding.9 More importantly, we have held that, where parties waive a hearing before an Administrative Law Judge and call upon the Board to render a decision in an unfair labor practice proceeding related to a 10(k) award, the Board itself will adhere to its determination in the underlying 10(k) determination, where no new evidence is presented in the related unfair labor practice pro- ceeding. ' 0 We do not think that the August 24 letter is the kind of new evidence which would warrant the relitigation of the merits of the underlying work dispute. To invoke the 10(k) process where all material issues regarding the merits of the dispute have previously been decided by the Board would be pointless, as there are no matters requiring a new hearing.' 11 Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. I of Tennessee and Bricklayers, Masons and Plasterers International Union of America (Shelby Marble & Tile Co.), 195 NLRB 123(1972). 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If we were to conduct a second 10(k) hearing based upon the alleged threats contained in the August 24 letter, we would be forced to expend valuable time and effort only to arrive at the same conclusion we have already reached. A new 10(k) decision would not differ from that already issued in our determina- tion as to whether the August 24 letter constituted reasonable grounds to believe that a violation of Section 8(b)(4)(D) had occurred. As the letter contains a threat to take economic action based upon the Employer's assignment of the work, we would, no doubt, find that such reasonable cause existed. Proceeding to the merits of the dispute and consider- ing ourselves bound by our prior award, we would again award the disputed work to employees repre- sented by IATSE, rather than to employees repre- sented by NABET. Since NABET would be the union against whom the charges had been filed and since the award of work would not be to its members, NABET would be ordered to submit evidence of compliance with the Board's award. Failing such compliance, NABET would be charged with an unfair labor practice. There is no question but that the Board, in the unfair labor practice proceeding, would find that NABET violated Section 8(b)(4)(D), both by its initial threats to take economic action and by its failure to comply with the 10(k) award. NABET itself, while insisting that a second 10(k) hearing should be held, inconsistently admits that such a hearing may indeed be futile. It recognizes that, if the Board were to reach the merits of the dispute in a second hearing, it would be bound by its prior determination and that the results would not be changed. We see no reason to go through the involved procedure of a second 10(k) hearing merely to arrive at the same conclusion we have already reached in Case 31-CD-161. To permit such a procedure would be to allow NABET to have a second opportunity to litigate issues already decided. NABET fully partici- pated in the prior 10(k) hearing and the issues therein were fully litigated and carefully considered by the Board. We now have before us a charge that NABET has violated the Act by not complying with the Board's award, much in the same manner as we would have a charge if NABET failed to comply with a new 10(k) determination, for the results of both determinations are, and would be, the same, and there is no reason to believe that NABET would comply with one if, as we find infra, it, has failed to comply with the other. Such a charge calls not for a new 10(k) hearing, but for an unfair labor practice proceeding. We turn now to an examination of the August 24 letter to determine if an unfair labor practice has been committed. We reject NABETs contention that its letter was not a threat to force a reassignment of the work. The letter clearly indicates NABETs intention to strike as long as the Employer continued to assign the operation of the minicam to employees represented by IATSE. Considering the fact that the Board had issued its award of the work to employees represented by IATSE, we are of the opinion that the threat to strike clearly shows that NABET did not intend to be bound by the Board's award. We further reject NABET's claim that its letter was a lawful request that the Employer fulfill its contrac- tual obligation to arbitrate its grievance over the work assignment. Having been vindicated in its work assignment by the Board, the Employer was within its rights to petition the district court to vacate its order compelling tripartite arbitration, realizing that such arbitration would serve no purpose in the face of the Board's award. NABET claims that the arbitration should have taken place in any event, arguing that, in the event the arbitrator determined that NABET should perform the work, the Employ- er, obviously faced with conflicting decisions of the Board and the arbitrator, could easily obtain preference for the Board's decision by taking its case to court. We see no reason to force the Employer to go to court to obtain a ruling that the Board's decision would prevail over that of an arbitrator.'s We arrive at the same conclusion as did the district court in vacating the tripartite arbitration order, namely, that further proceedings by an arbitrator would be in vain, as the Board's decision would take precedence regardless of whether the arbitrator agreed with that decision. We are of the opinion that, by continuing to demand arbitration of a dispute already settled by the Board in a decision taking precedence over that of an arbitrator, NABET was attempting to undermine the Board's authority to resolve jurisdictional disputes, thus further evidenc- ing its intention not to be bound by the Board's award. Considering all the circumstances herein, particu- larly NABETs threat to strike if employees repre- sented by IATSE continued to operate the minicam and its continuing demand for arbitration of a dispute already concluded by the Board, we are of the opinion that NABET has demonstrated an intention not to abide by our award. Accordingly, we find that Respondent, by its entire course of conduct, has violated Section 8(b)(4)(ii)(D) of the Act. 12 Carey v. Westinghouse Electric Corporation, 375 U.S. 261 (1964). 78 NABET, AFL-CIO, CLC IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent, as set forth above, occurring in connection with Metromedia's opera- tions, has a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the Act, we shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada are labor organizations within the meaning of Section 2(5) of the Act. 2. Metromedia, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to comply with the Board's Decision and Determination of Dispute in Case 31- CD-161; by inducing and encouraging individuals employed by Metromedia to engage in a strike or refusal in the course of their employment to perform services; and by threatening, restraining, and coerc- ing Metromedia, an object in each case being to force or require Metromedia to assign to employees represented by or members of Respondent, rather than to employees represented by or members of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, the work of operating the miniature electronic videotape camera, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, National Association of Broadcast Employees and Technicians, AFL-CIO, CLC (NABET), Los An- geles, California, its officers, agents, and representa- tives, shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute in Case 31-CD- 161; inducing or encouraging indivi- duals employed by Metromedia, Inc., to engage in a strike or refusal in the course of their employment to perform any services; threatening, restraining, or coercing Metromedia, Inc., where an object in each case is to force or require Metromedia, Inc., to assign the work of operating the miniature electronic videotape camera to employees represented by or members of Respondent, rather than to employees represented by or members of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, except insofar as such conduct is permitted under Section 8(b)(4)(D) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 31 for posting by Metromedia, Inc., if it is willing, at all locations upon the premises where notices to its employees are customarily posted. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to comply with the Board's Decision and Determination of Dispute in Case 31-CD-161 set forth in 225 NLRB 785, awarding the operation of the miniature electronic video- tape camera to employees who are members of or represented by International Alliance of Theatri- cal Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada; and WE WILL NOT induce or encourage individuals employed by Metromedia, Inc., to engage in a strike or refusal in the course of their employment to perform any services. WE WILL NOT threaten, restrain, or coerce Metromedia, Inc., where an object is to force or require Metromedia, Inc., to assign the work of operating the miniature electronic videotape camera to members of or employees represented by us, rather than to members of or employees represented by International Alliance of Theatri- cal Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, except insofar as such conduct is permitted under Section 8(bX4Xd) of the National Labor Rela- tions Act, as amended. NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO, CLC (NABET) 80