Local 659, International Alliance of Theatrical Stage Employees and Moving Pictures Machine Operators of the United States and Canada, AFL-CIO (King Broadcasting Company, d/b/a KGW-TV)

LOCAL 659. ISATE Local 659, International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada, AFL- CIO and Local 49, International Brotherhood of Electrical Workers and King Broadcasting Company, d/b/a KGW-TV. Case 36-CD-168 September 30, 1982 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Local 49, International Broth- erhood of Electrical Workers, herein called Local 49, alleging that Local 659, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, herein called Local 659, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring King Broadcasting Company, d/b/a KGW-TV, herein called the Employer, to assign certain work to the employees represented by it rather than to employees represented by Local 49. Pursuant to notice, a hearing was held before Hearing Officer Richard V. Stratton on June 21, 1982. All parties appeared and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, an Oregon corporation with its principal place of business in Portland, Oregon, is engaged in the operation of a television station. During the past year, the Employer has received revenues in excess of $100,000 from customers of the station. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it 264 NLRB No. 106 will effectuate the purposes of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 659 and Local 49 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The work in dispute involves the operation of mini-cameras in the newsroom which are mounted on tripods with wheels and connected by cable to the control booth. The mini-cameras are intended to provide live inserts of reporters and the weather person at their work stations in the newsroom during the regularly scheduled news program be- tween 5 and 6 p.m. This dispute arose during April 1982, when the Employer introduced the mobile mini-cameras to the newsroom. Previously, the employees repre- sented by Local 659 used the portable hand-held mini-cameras to gather news in the field, whereas Local 49 members, who have operated the portable mini-cameras to cover parades and other special events, were primarily responsible for operating the stationary studio cameras. In February 1982, when the Employer first de- cided to introduce the mobile newsroom mini-cam- eras, the employees represented by Local 49 were assigned the disputed work. However, shortly before the mini-cameras were scheduled to be initi- ated on April 19, 1982, Local 659 threatened eco- nomic harm if the employees represented by them were not assigned the work. In an effort to avoid the adverse action, the Employer reassigned the work to the employees represented by Local 659, who have continued to perform the disputed work, despite the subsequent threat of economic action made by Local 49. B. The Work in Dispute The work in dispute involves the operation of a mini-camera in the newsroom during a live news broadcast at the KGW-TV Station in Portland, Oregon. C. The Contentions of the Parties The Employer contends that the only factor tra- ditionally considered by the Board which is dispos- itive in this dispute is the consideration for econo- my and efficiency which strongly favors granting the Employer the right to assign the work to the employees represented by either or both Unions. 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 659 asserts that the employees represented by it should be awarded the work because they have been performing the work since April 19, 1982, to the Employer's satisfaction, and that the work is similar to photographing an interview in the field, requiring such skills as lighting and fram- ing which the employees represented by Local 49 lack. Local 49 takes the position that the mini-camera, when placed on a tripod and hooked by a cable to the control room, becomes an extension of the studio cameras which are operated by the employ- ees represented by Local 49. Since lighting and framing are controlled by the program director, Local 49 argues that the same basic skills necessary for the operation of the stationary mini-cameras are applicable to the mobile mini-cameras when used in the studio. 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. Since it was stipulated that both Unions threat- ened to take economic action, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary ad- justment of the dispute within the meaning of Sec- tion 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for deter- mination. 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 of various factors.' 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.2 The following factors are relevant in making the determination of the dispute before us: 1. Certifications and collective-bargaining agreements On December 1, 1972, and May 8, 1980, Local 49 and Local 659, respectively, were certified by N.LR.B. v. Radio & Television Broadcasting Engineers Union. Local 1212. International Brotherhood of Electrical Workers, AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961). 2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). the Board. Since both certifications predate the use of the mobile newsroom mini-cameras, the defini- tional language of the certification has no value in determining who should be assigned the disputed work. Both Locals also have collective-bargaining agreements with the Employer which were entered into before the introduction of the mobile mini- cameras and are, therefore, of no value in deter- mining which employees should be assigned the disputed work. 2. Company and industry practice The record does not show that there is any clearly defined industry practice regarding the dis- puted work. The evidence presented by Local 49 and Local 659 was too sparse to establish an indus- try practice. Therefore, industry practice is not a factor in determining this dispute. Since the Employer introduced the use of mobile mini-cameras on April 19, 1982, and it immediately became the source of this dispute, we must con- clude that the Company has not established a past practice for performing the disputed work. We would note, however, the Employer initially as- signed the disputed work to the employees repre- sented by Local 49. To this extent we would find that this factor favors the award of the disputed work to Local 49. 3. Relative skills The employees represented by both contending Unions have the requisite skill and experience to operate the mobile mini-cameras. The employees represented by Local 49 have used mini-cameras to cover special events such as parades and sporting events, and the newsroom use of the mini-cameras requires the same basic skills as the operation of the stationary studio camera. The employees repre- sented by Local 659 also have the requisite skill based on their wide experience on operating the portable mini-cameras for gathering news in the field. Since the employees represented by both Unions have similar skill and experience in operating the mini-cameras, we find this factor to be of no value in determining this dispute. 4. Economy and efficiency of operation Arguing that there are occasions during a fast- breaking news situation where the immediacy of the assignment is a critical factor, the Employer in- sists that its needs for economy and efficiency re- quire complete discretion to assign the disputed work to the employees represented by either or both of these Locals. The Employer argues that an exclusive assignment to the employees represented 780 LOCAL 659, IATSE by Local 659 would lead to scheduling problems since the employees are not always available due to emergencies requiring news gathering in the field, and that an assignment to the employees represent- ed by Local 49 would involve excess costs because the employees represented by Local 659 would have to stay after the show to check out the mini- camera for the following day's assignment at over- time rates. After carefully evaluating the Employer's con- cerns for efficiency, we conclude that this factor favors the award of the disputed work to the em- ployees represented by Local 49, since these em- ployees are generally available throughout the day in case of emergencies, and based on the evidence provided during the hearing which establishes that there are other mini-cameras at the station that are not assigned to any particular personnel, and could be permanently allocated to the newsroom for use by employees in charge of the disputed work. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by Local 49 are entitled to perform the work in dis- pute. We reach this conclusion relying on the Em- ployer's initial preference and the economy and ef- ficiency of operation. We would further note that, while we are con- vinced that the employees represented by either of these Locals could perform the disputed work, we are mindful of the debilitating effect of potential disputes which could arise if we fail to make an af- firmative award of the work. To the extent that this is a close jurisdictional dispute we also rely on the nature of the disputed work. In King Broadcast- ing Company,3 the Board awarded jurisdiction over the then recently introduced portable hand-held mini-cameras to the employees represented by 3 International Photographers Local 659, affiliated with International Alli- ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States d Canada, AFL-CIO (King Broadcasting Company), 216 NLRB 860 (1975) Local 659 because it was closely related to their primary function as news gatherers. The operations of the mobile mini-cameras which are placed on tripods and connected to the control booth by cables are dissimilar. Rather, these mobile mini- cameras are more properly viewed as extensions of the stationary studio cameras which film the news after it has been gathered. In making this determination, we are awarding the work in question to employees who are repre- sented by Local 49, but not that Union or its mem- bers. The present determination is limited to the particular controversy which gave rise to this pro- ceeding. 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 King Broadcasting Company, d/b/a KGW-TV, who are represented by Local 49, International Brotherhood of Electrical Work- ers, are entitled to perform the disputed work at the Portland, Oregon, TV station. 2. Local 659, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL- CIO, is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require King Broadcasting Company, d/b/a KGW-TV to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 659 shall notify the Regional Director for Region 36, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disput- ed work in a manner inconsistent with the above determination. 781