53, International Alliance Of Theatrical Stage Employees & Moving Picture Machine Operators Of The U S And Canada, Afl-Cio

National Labor Relations Board - Board Decisions

Oct 17, 1984

272 N.L.R.B. 836 (N.L.R.B. 1984)

836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 53, International Alliance of Theatrical Stage
, Employees & Moving Picture Machine Opera
tors of the U S and Canada, AFL-CIO and
CBS Inc and Local 1212, International Broth
erhood of Electrical Workers, AFL-CIO Case
1-CD-718
17 October 1984
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The charge in this Section 10(k) proceeding was
filed 23 April 1984 by the Employer, CBS Inc , al
leging that the Respondent Local 53, IATSE
(Local 53), violated Section 8(b)(4)(D) of the Na
tional Labor Relations Act by engaging in pro
scribed activity with an object of forcing the Em
ployer to assign certain work to employees it rep
resents rather than to employees of the Employer
represented by Local 1212 IBEW (Local 1212)
The heanng was held 29 May 1984 before Hearing
Officer Thomas J Morrison
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 New York corporation, is en
gaged in interstate communications by radio and
television, as well as other enterprises, from its
principal office in New York City, where it annual
ly receives from points outside of New York State
goods valued in excess of $50 000 It has annual
revenues in excess of $1 million The parties stipu
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that Local 53 and Local 1212
are labor organizations within the meaning of Sec
tion 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
Approximately 2 weeks prior to the Employer s
25 February 1984 telecast of a National Collegiate
Athletic Association (NCAA) basketball game at
the Springfield Civic Center in Massachusetts,
Douglas Fleetham, the Employer s field technical
manager, spoke with Ken Shean, Local 53's busi
ness manager Shean told Fleetham that he expect
ed CBS to hire several Local 53 members to serve
as the pre broadcast, broadcast, and post broadcast
technical crew Specifically, Shean wanted CBS to
hire one man on Thursday (23 February), four men
on Friday and four men on Saturday the date of
the telecast CBS had intended to assign the field
technical work to employees represented by Local
1212 pursuant to a collective bargaining agreement
with IBEW and its locals Fleetham told Shean
that he would refer the matter to his. superiors and
get back to him
Between approximately 13 and 17 February,
Fleetham had several conversations with Shean in
an attempt to convince him to agree to the hiring
of fewer employees represented by Local 53 On or
about 22 February, Fleetham asked Shean what the
consequences would be if CBS attempted to broad
cast the game without hiring members of Local 53
Shean told Fleetham that if this situation arose
Local 53 would pull the sound man and the score
board operator from the building Shean also told
Fleetham at some point that very possibly you'll
have some people outside the building that will be
picketing or something like that Fleetham dis
cussed the situation with his superiors who decided
that, in order not to jeopardize the telecast, CBS
would hire the men Shean demanded be hired
Fleetham informed Shean that he was hiring the
men under protest The game was played and tele
vised as scheduled
B Work in Dispute
The disputed work involves the unloading of
equipment from CBS trucks, the positioning of
equipment at the site of the television transmission
and the installing of temporary cable to such equip
ment at the Civic Center in Springfield Massachu
setts
C Contentions of the Parties
The Employer contends with Local 1212 and
the IBEW 1- in agreement that Local 53 violated
Section 8(b)(4)(D) of the Act because it threatened
to pull the sound man and the scoreboard operator
from the Springfield Civic Center and to picket
outside the Civic Center unless CBS hired employ
ees from Local 53 to assist in the disputed work In
view of its collective bargaining agreement with
Local 1212 employer and industry past practice
the specialized nature of the equipment, and the
functional interchangeability of the CBS crew, the
Employer asserts that the disputed work should be
awarded to the members of Local 1212
' Reginald Gilliam an International representative of the IBEW ap
peared at the hearing on behalf of the IBEW and testified in support of
Local 1212 s claim The IBEW did not file a brief
272 NLRB No 120
STAGE EMPLOYEES IATSE LOCAL 53 (CBS INC ) 837
Local 53 contends that the disputed work should
be awarded to its members on the basis of its con
tract with the Springfield Civic Center, past prac
tice at the Civic Center the nonspecialized nature
of the work, and because the work should be given
to local Springfield technicians rather than to CBS
employees without prior experience in the Spring
field Civic Center
D Applicability of the Statute
The uncontradicted and undisputed testimony
discloses that on or about 22 February Local 53
threatened to pull the sound man and the score
board operator from the Springfield Civic Center
and to picket outside the Civic Center unless CBS
agreed to assign the work in dispute to employees
represented by Local 53
We find reasonable cause to believe that a viola
ton of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust
ment of the dispute within the meaning of Section
10(k) of the Act Accordingly, we find that the dis
pute is properly before the Board for determina
tion
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
ancmg the factors involved in a particular case
Machinists Lodge 1743 (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
Local 1212 is the certified representative of the
CBS employees involved here CBS has a collec
tive bargaining agreement with Local 1212 in
effect which specifically gives jurisdiction of the
disputed work to Local 1212 technicians, both in
terms of the type of work to be performed and
Local 1212 s territorial jurisdiction, which is a 525
mile radius from a main studio The parties stipulat
ed at the hearing that Springfield, Massachusetts, is
within 525 miles of New York City
On the other hand Local 53 claims that its con
tract with the Civic Center controls the assignment
of work The jurisdictional article in Local 53 s
contract states that [t]he parties hereto recognize
that the Union claims jurisdiction over all [work]
recognized [as] traditionally falling within the juns
diction of the Union in connection with all shows
and attractions In addition, the parties recog
mze that the Union claims jurisdiction hereunder to
cover all sound and lighting equipment in or out of
The Center and moving same from one area to an
other Also agrees the Union claims junsdic
tion hereunder to cover all sound, lighting,
props and rigging in connection with all shows and
attractions
From the record evidence it is clear that CBS,
not the Civic Center, was the employer in control
over the manner and means by which the telecast
was to be made CBS collective bargaining agree
ment with Local 1212 clearly establishes the latter s
jurisdiction over the work, whereas Local 53 has
no suCh contract and arrangement with CBS In
view of the explicit language in the collective bar
gaining agreement between CBS and Local 1212
we find this factor favors an' award of work to the
employees of the Employer who are represented
by Local 1212
2 Company preference and past practice
The record discloses that CBS prefers to have its
own employees perform the work in dispute, be
cause the equipment is complex and expensive, and
because CBS employees have the expertise and ex
penence in handling it The record also reveals
that the award by CBS of the disputed work to
Local 1212 represented employees has a long tradi
tion 2 Since 1969, the present section 1 03(m) of the
IBEW contract with CBS, which awards this work
to employees represented by Local 1212, has been
included in the parties' contracts We also note in
this context our decisions in Stage Employees
IATSE Locals 27 and 48 (CBS Inc ) 227 NLRB
142 (1976), and Stage Employees IATSE Local 84
(CBS Inc ) 218 NLRB 1312 (1975) which award
ed the same work as is in dispute here to employ
ees of the Employer represented by Local 1212
We find that company preference and past practice
favor an award of work to the employees of the
Employer who are represented by Local 1212
3 Industry practice
Besides CBS, the other two major networks,
ABC and NBC, generally assign the work in dis
pute to their own employees The collective bar
2 Business Manager Shean testified that Local 53 members had per
formed the work in dispute for CBS Boston affiliate in covering the state
Democratic conventions at the Springfield Civic Center in 1982 and
1983 There is however no evidence that CBS had any control over its
contractual affiliate s broadcast CBS Vice President Stephen Koppekin
stated that the Boston affiliate station is not covered by the IBEW con
tract
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement between NBC and the National
Association of Broadcast Employees and Techni
clans, which represents the relevant NBC employ
ees, permits NBC to utilize the services of employ
ees of stadiums and arenas, if the particular stadium
or arena has a contract with a local union Insofar
as the relevant collective bargaining agreements en
tered into by CBS and ABC with their own em
ployees contain no such provision, we find that in
dustry practice favors an award of work to the em
ployees of the Employer who are represented by
Local 1212
4 Skills and efficiency of operations
A major concern of CBS is the proper care and
use of its complex and expensive broadcast equip
ment Its crews are customarily composed of ap
proximately 20-23 technicians who are Local 1212
members and who perform interchangeable func
tions, including the work in dispute Undisputed
testimony indicates that the Local 1212 technicians
are highly skilled in both maintaining and repairing
the equipment involved We find therefore that
such employees of the Employer possess the neces
sary skills Although there is no contention that
Local 53 members are any less skilled to do the
work in view of the specialized equipment in
volved and the demonstrated skills and training of
CBS employees to do the work, this factor favors
an award of the disputed work to the employees of
the Employer who are represented by Local 1212
Conclusions
After considering all the relevant factors we
conclude that employees represented by Local
1212 are entitled to perform the work in dispute
We reach this conclusion relying on the Employ
er s preference, the collective bargaining agreement
between the Employer and Local 1212, the Em
ployer s past practice and industry practice, and
the skill, experience, and efficiency of the Employ
er's crew members represented by Local 1212 in
the handling, maintenance and repair of the perti
nent equipment In making this determination, we
are awarding the work to employees represented
by Local 1212, not to that Union or its members
The determination is limited to the controversy
that gave rise to this proceeding
t DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of CBS Inc represented by Local
1212, International Brotherhood of Electrical
Workers, AFL-CIO, are entitled to perform the
work of unloading equipment from CBS trucks the
positioning of equipment at the site of the televi
sion transmission, and the installing of temporary
cable to such equipment at the Civic Center in
Springfield, Massachusetts
2 Local 53, International Alliance of Theatrical
Stage Employees, is not entitled by means pro
scribed by Section 8(b)(4)(D) of the Act to force
CBS Inc to assign the disputed work to employees
represented by it
3 Within 10 days from this date, Local 53, Inter
national Alliance of Theatrical Stage Employees,
shall notify the Regional Director for Region 1 in
writing whether it will refrain from forcing the
Employer by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner
inconsistent with this determination ,