International Brotherhood Of Electrical Workers, Local 202, Afl-Cio

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 202, AFL-CIO and San Francisco Oak land Television Station KTVU and International Photographers Guild of the Motion Picture and Television Industries, Local 659, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO Case 32- CD-71 ., 28 September 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS The charge in this Section 10(k) proceeding was filed 6 February 1984 by the Employer, alleging that the Respondent, IBEW Local 202, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em ployees represented by IATSE Local 659 The hearing was held 2 5 and 29 March 1984 before Hearing Officer Jeffrey C Ewing The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board affirms the hearing officer s rulings, finding them free from prejudicial error On the entire record,' the Board makes the following find ings I JURISDICTION The Company a California corporation is en gaged in television broadcasting at its facility in Oakland California where it annually derives a gross revenue in excess of $100 000 The parties stipulate, and we find that the Employer is en gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that IBEW Local 202 and IATSE Local 659 are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer went on the air in 1958 Soon after, the Employer recognized IBEW Local 202, and they executed the first of a continuous series of 1 IATSE Local 659 moved to submit pursuant to the parties stipula non late filed exhibits The exhibits are accepted IATSE Local 659 also moved to reopen the record to take testimony or to receive evidence regarding its new collective bargaining agreement with the Employer and a pending AFL-CIO art XX determination We shall enter into the record the documents submitted but shall not other wise reopen the record contracts covering the Employer s 1 engineers, the latest contract running from 23 December 1983 to 22 December 1986 On 27 May 1966 IATSE Local 659 was certified to represent [41 [the Employ er s] newsreel motion picture cameramen sound men Since 1966 the Employer and IATSE Local 659 have executed a continuous series of contracts covering the cameramen soundmen unit, the most recent contract running from 16 March 1984 , to 15 March 1987 IATSE Local 659 camerapersons traditionally worked with film cameras while IBEW Local 202 engineers traditionally operated and maintained electronic equipment With the advent of electronic news gathering (ENG) IATSE Local 659 camera persons can perform their task (news gathering) with the engineers tool (electronic equipment) On 7 February 1977 the Employer and IBEW Local 202 signed a side letter to their contract providing that although the operation of ENG equipment fell within IBEW Local 202 s work jurisdiction, IATSE Local 659 camerapersons could operate ENG equipment for so long as or at such times as the Employer shall utilize film camera equip ment other than on a sporadic or emergency basis for news gathering The Employer no longer uses film camera equipment on a regular basis At present an IATSE Local 659 represented ca meraperson uses ENG equipment to obtain an elec tronic picture and sound recording Then, either the videotape is taken to the station for editing or the video images are relayed instantly by micro wave transmission to the station from an ENG van located near the cameraperson There is no dispute that an IBEW Local 202 represented employee is to perform the microwave transmission Technolo gy exists that would enable the cameraperson to transmit the mircowaves thus if the cameraperson were an IBEW Local 202 represented employee only one person would be needed to tape an event and transmit it back to the station—this is called in the industry a one man band The Employer does not presently possess the technology to insti tute a one man band On 12 January 1984 IATSE Local 659 filed a pe tition for certification of representative 2 in a unit including [41 full time and regular part time news department camerapersons including photojourna lists, mini cam camerapersons film camerapersons, operators of electronic news gathering (ENG) equipment and camerapersons employed in elec tronic news gathering On 3 February 1984 IBEW 2 When reminded at the heanng that IATSE Local 659 was certified in 1966 the Union s attorney said he would move to amend the petition According to the postheanng brief IATSE Local 659 has filed an amendment of certification petition 272 NLRB No 103 ELECTRICAL WORKERS IBEW LOCAL 202 (SAN FRANCISCO TELEVISION) 649 Local 202 sent the Employer a telegram noting that IATSE Local 659 was claiming ENG work within IBEW 202's jurisdiction and advising that "[i]f the Station awards this work to any collective bargaining agency other than [IBEW Local 202], the Union will engage in a work stoppage directed at the Station." B. Work in Dispute The disputed work involves the operation of electronic cameras for news gathering purposes for the Employer's Oakland, California television sta- tion's news department. C. Contentions of the Parties The Employer and IBEW Local 202 contend that the work in dispute should be assigned to em- ployees IBEW Local 202 represents, arguing that the Employer's preference, economy and efficien- cy, and IBEW Local 202's contract with the Em- ployer favor such an award. IBEW Local 202 claims additionally that area and industry practice favors an award in its favor. IATSE Local 659 argues that the notice of hear- ing should be quashed, asserting that there was no threat that justifies invoking 10(k) proceedings. IATSE Local 659 also contends the Board should defer to a prior AFL-CIO article XX proceeding or await the results of a pending article XX pro- ceeding. In the alternative, IATSE Local 659 claims that its certification as the camerapersons' representative, its collective-bargaining history with the Employer, the Employer's past practice, and relative job skills favor awarding the disputed work to the camerapersons it represents. D. Applicability of the Statute As mentioned above, on learning of IATSE Local 659's representation petition, IBEW Local 202 sent the Employer a telegram advising that it would engage in a work stoppage if the Employer awarded the disputed work to employees repre- sented by any other union. We find that an object of IBEW Local 202's telegram was to force the Employer to assign the disputed work to the engi- neers IBEW Local 202 represents.3 3 We find no merit to IATSE Local 659's argument that because the representation petition triggered IBEW Local 202's telegram, it does not constitute a basis for invoking a 10(k) proceeding IATSE Local 659-rep- resented employees currently are performing the work, and the Union has not disclaimed Interest in the disputed work IBEW Local 202 claims the work should be assigned to engineers it represents Thus, two unions representing different groups of employees claim the disputed work Con- sequently, there is a dispute over the assignment of work to one group of employees rather than another within the meaning of Sec 8(b)(4)(D) Ac- cordingly, IATSE Local 659's contention that the notice of hearing should be quashed is denied. No party contends that there is an agreed-upon method for voluntary adjustment of the dispute to which all parties are bound.4 We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for deter- mination. E.Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1 743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreements IATSE Local 659 contends that its certification as representative of the camerapersons and its col- lective-bargaining agreement with the Employer cover the disputed work. We find that both IATSE Local 659's certification and its contract refer to newsreel film camera work rather than the electronic news gathering in dispute. IBEW Local 202 contends that its collective-bar- gaining agreement covers the disputed work. IBEW Local 202's contract specifies that it has ju- risdiction over the operation and maintenance of all electronic cameras, and a 1977 side agreement specifies that all ENG work comes under the ex- clusive jurisdiction of the engineers IBEW Local 202 represents. Accordingly, we find that the certification factor favors awarding the work in dispute to neither group of employees, and the collective-bargaining agreements favor an award to employee IBEW Local 202 represents. 4 IATSE Local 659 urges that we defer to an art XX proceeding and to a prior art XX award IATSE Local 659 cannot contend that art XX constitutes a voluntary adjustment mechanism within the meaning of Sec 10(k), since the Employer is not bound by an art XX determination IBEW Local 202 and the Employer have a grievance-arbitration proc- ess to resolve a dispute concerning this work, but IATSE Local 659 is not bound by that process. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Past practice Although IBEW Local 202 always has asserted jurisdiction over the disputed work, the Employer exclusively has used IATSE Local 659 represented camerapersons rather than IBEW Local 202 repre sented engineers to perform ENG work since the Employer obtained ENG equipment in 1975 Ac cordingly, we find the history of the Employer's past practice favors an award to employees IATSE Local 659 represents 3 Area practice The Employer s area competitors have employ ees represented by IBEW Local 202, IATSE Local 659, and a third union performing ENG work Therefore, area practice favors awarding the work to neither group of employees 4 Economy and efficiency of operations The Employer maintains that it is more economi cal and efficient to have IBEW Local 202 repre sent the employees that perform ENG work be cause it would make possible the use of a one man band to cover the news But the Employer does not possess an ENG camera with independent microwave transmission capability The Employer s current technology requires that an IBEW Local 202 represented engineer be stationed in an ENG van in the immediate vicinity of the cameraperson to perform the microwave transmission Therefore at the present time the Employer must utilize two employees to tape and transmit news regardless of the camerapersons s union affiliation A 10(k) award is based on the current status not on situa lions that may exist in the future Accordingly, we conclude that efficiency of operation favors neither group of employees 5 Relative skills Although operating electronic cameras may not be especially difficult producing a quality product requires photojournalistic skills and judgments that can be acquired only through experience IATSE Local 659 represented camerapersons possess the requisite photojournalistic skills, IBEW Local 202 represented engineers do not We therefore find this factor favors awarding the disputed work to employees IATSE Local 659 represents 6 Employer preference The Employer claims to prefer assigning the work to employees IBEW Local 202 represents The record, however reveals that the Employer wishes to retain the services of its present camera persons but for IBEW Local 202 to represent them The Employer prefers IBEW Local 202 to represent the, camerapersons because reaffiliation would make a one man band feasible in the event the Employer purchases new technology discussed above 5 The issue in a 10(k) proceeding however, is which employees will perform the work, not what, if any, union will represent them That deter mination is one for the employees, not the employ er or the Board, to make As the Employer prefers the camerapersons to continue to perform the disputed work we find that this factor favors an award to employees IATSE Local 659 represents 7 Joint board determinations IATSE Local 659 submitted an AFL-CIO arti cle XX determination involving IATSE Local 659 and IBEW Local 202 The determination finds that IATSE Local 659 did not violate article XX in ob taming the assignment of the operation of the Em ployer s mini cameras for the purpose of news gathering The determination addresses the manner in which the assignment was made to IATSE Local 659 rather than the rights of the two Unions to perform the work We therefore find the article XX determination of no help in resolving this dis pute Conclusions After considering all the relevant factors we conclude that employees represented by IATSE Local 659 are entitled to perform the work in dis pute We reach this conclusion relying on past practice relative skills and the Employer s prefer ence that camerapersons continue to perform the work These factors outweigh the contract factor favoring IBEW Local 202 represented employees In making this determination, we are awarding the work to employees represented by IATSE Local 659, not to that Union or its members The deter mination is limited to the controversy that gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of San Francisco Oakland Televi sion Station KTVU, represented by International Photographers Guild of the Motion Picture and Television Industries, Local 659 International Alli ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada AFL-CIO are entitled to perform the operation of electronic cameras for news gathering 5 As stated above such a situation is not before the Bpard ELECTRICAL WORKERS IBEW LOCAL 202 (SAN FRANCISCO TELEVISION) 651 purposes for the Employer s Oakland California television station s news department 2 International Brotherhood of Electrical Work ers Local 202 AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force San Francisco Oakland Television Station KTVU to assign the disputed work to employees represented by it 3 Within 10 days from this date International Brotherhood of Electrical Workers Local 202 AFL-CIO shall notify the Regional Director for Region 32 in writing whether it will refrain from forcing the Employer by means proscribed by Sec tion 8(b)(4)(D) to assign the disputed work in a manner inconsistent with this determination , A