Columbia Broadcasting System, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 637 (N.L.R.B. 1974)

COLUMBIA BROADCASTING SYSTEM, INC.
Columbia Broadcasting System , Inc.' and Motion Pic-
ture Film Editors Local 771, International Alliance
of Theatrical Stage Employees and Movie Picture
Machine Operators of the United States and Cana-
da, AFL-CIO. Case 2-CA-12968
November 4, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS AND
PENELLO
On April 30, 1974, Administrative Law Judge
Abraham H. Mailer issued the attached Decision in
this proceeding.2 Thereafter, Respondent filed excep-
tions and a supporting brief; the Charging Party filed
an exception and a supporting brief; the General
Counsel filed with the Board a copy of his brief to
the Administrative Law Judge; and International
Brotherhood of Electrical Workers, AFL-CIO-CLC,
and its Local 1212, Parties in Interest, filed point ex-
ceptions and brief.'
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 considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Columbia Broadcasting Sys-
tem, Inc., New York, New York, its officers, agents,
successors and assigns, shall take the action set forth
in the said recommended Order.
i The name of Respondent appears as stated at the hearing We note that
in their exceptions and briefs the parties refer to Respondent as CBS, Inc ,
formerly known as Columbia Broadcasting System, Inc However, no party
has filed a motion to amend the caption of this case
2lnternational Brotherhood of Electrical Workers, AFL-CIO-CLC, and
its Local 1212, and DuArt Color Corporation appeared at the hearing as
Parties in Interest
7 The requests for oral argument by Respondent and International Broth-
erhood of Electrical Workers, AFL-CIO-CLC, and its Local 1212 are here-
by denied as the record and briefs adequately present the issues and posi-
tions of the parties.
DECISION
637
ABRAHAM H. MALLER, Administrative Law Judge: On
June 27, 1973, the Regional Director for Region 2 of the
National Labor Relations Board, herein called the Board,
issued on behalf of the General Counsel a complaint
against Columbia Broadcasting System, Inc., herein called
CBS. The complaint was issued upon a charge filed on
May 3, 1973, by Motion Picture Film Editors Local 771,
International Alliance of Theatrical Stage Employees and
Movie Picture Machine Operators of the United States and
Canada, AFL-CIO, herein variously called Local 771 or
IATSE. Briefly, the complaint alleged that in or about
1952, the International Brotherhood of Electrical Workers,
herein called IBEW, was certified by the Board as the rep-
resentative of all technicians employed by CBS, including,
inter aha, film editors and cutters in New York City; that
since 1952, IBEW has had a succession of collective-bar-
gaining agreements with CBS covering said employees;
that since about 1952, Local 1212 of IBEW, herein referred
to as Local 1212, has administered the collective-bargain-
ing agreements referred to above in regard to technicians
employed by CBS in New York City; that since about
1958, the collective-bargaining agreements between IBEW
and CBS have permitted CBS to subcontract the work per-
formed in New York City by film editors on documenta-
nes; that as a result of said agreements, CBS has since on
or about 1958 entered into contracts with various firms
whereby editing of certain documentaries has been per-
formed by such subcontractors, the most recent of which
was entered into between CBS and DuArt Color Corpora-
tion, herein called DuArt; that in accordance with such
subcontracting agreements, CBS has paid the subcontrac-
tor a flat fee and has reimbursed the subcontractor for all
actual and out-of-pocket expenses including, inter alia, all
costs directly related to the persons placed on the
subcontractor's payroll for CBS as documentary film edi-
tors; that said documentary film editors work at the prem-
ises of CBS, using CBS' equipment, work under the direc-
tion and control of CBS, and perform their work in accor-
dance with instructions they receive from supervisors of
CBS, and their hire and tenure of employment is subject to
the control of CBS; that since on or about 1958 and con-
tinuing to date, documentary film editors and cutters on
the payroll of the various subcontractors in New York
City, but under the direction and control of CBS, are and
have been members of, or represented by, Local 771; that
the most recent agreement between CBS and IBEW con-
tains a provision to the effect that the work of editing and
cutting motion picture film in New York City and docu-
mentaries may be subcontracted by CBS where it is neces-
sary to do so in the judgment of CBS, but is limited to a
period until September 30, 1974; that at all times material,
CBS has participated in collective-bargaining negotiations
concerning the wages, hours and other working conditions
of the documentary film editors and cutters in New York
City; that CBS and DuArt are co-employers of the docu-
mentary film editors; that said documentary film editors
constitute an appropriate unit for collective bargaining;
that on or about April 30, 1973, Local 771 requested CBS
214 NLRB No. 123
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain with it, but CBS has refused to do so; that the
most recent collective-bargaining agreement between CBS
and IBEW contains a provision requiring membership in
IBEW as a condition of employment and that in April
1973, CBS informed the documentary film editors that ef-
fective October 1, 1974, said documentary film editors and
cutters would be employed under terms of said contract
with IBEW which requires membership in IBEW as a con-
dition of employment. The foregoing acts and conduct of
CBS are alleged to be in violation of Section 8(a)(1), (2),
and (5) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act. In its
duly filed answer, CBS denied any violations of the Act.
Pursuant to notice, a hearing was held before me at New
York, New York, on September 4, 5, 12, 13, and October
15 through 19, 1973. All parties were represented at the
hearing and were afforded full opportunity to be heard, to
introduce relevant evidence, to present oral argument and
to file briefs with me. Briefs were filed on or before Janu-
ary 14, 1974, by the General Counsel, CBS, Local 771, and
by IBEW. Upon consideration of the entire record and the
briefs, and upon my observation of each of the witnesses I
make the following:
111. ISSUES BEFORE THE BOARD
1. Did the Certification of IBEW in 1952 intend to in-
clude documentary film editors.
2. If the Board 's Certification of 1952 intended to in-
clude documentary film editors , did the subsequent course
of collective bargaining between the various parties consti-
tute an agreement by the parties to amend the Certifica-
tion.
3. Is CBS the employer of the documentary film editors
who are members of and are represented by Local 771.
4. Do the documentary film editors , assistant editors, li-
brarians and expediters constitute a separate unit for bar-
gaining purposes.
5. Has CBS recognized Local 771 as the collective bar-
gaining representative of the documentary film editors, as-
sistant editors , librarians and expediters.
6. If CBS has recognized Local 771 as the collective bar-
gaining representative of the documentary film editors,'
may CBS now refuse to recognize and bargain with Local
771.
7. If the documentary film editors constitute a unit sepa-
rate from the unit represented by IBEW, is the attempt by
CBS to accrete these employees to the IBEW unit a viola-
tion of Section 8(a)(2) of the Act.
FINDINGS OF FACT
I. THE BUSINESS OF CBS
CBS is, and has been at all times material herein, a cor-
poration duly organized under, and existing by virtue of,
the laws of the State of New York. At all times material
herein, CBS has been engaged in radio and television net-
work transmission in various states of the United States,
and at all times material herein, owned and operated radio
and television stations, under license issued by the Federal
Communications Commission in various states of the Unit-
ed States, including Station WCBS-TV located in the City
and State of New York. During the year preceding the
filing of the complaint, which period is representative of its
operations generally, CBS, in the course and conduct of its
operations, derived gross revenues therefrom in excess of
$1,000,000. Accordingly, I find and conclude that CBS is,
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that it will effectuate the policies of
the Board to assert jurisdiction here.
It. THE LABOR ORGANIZATIONS INVOLVED
Local 771 is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
Local 1212 is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
IBEW is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction
The problem presented in the instant case is the result of
the growth and development of the television broadcasting
industry. Programs which were not envisaged when the in-
dustry was in its infancy were created, enlarged, and ex-
panded. The emergence of new types of programs required
the application of innovative, sophisticated techniques and
procedures.
Thus, in the early days of television broadcasting, the
networks did not produce their own news shows. Instead,
CBS purchased newsreels produced by Telenews, a subsid-
iary of Hearst Metrotone News of the Day. According to
Palmer Williams, Senior Producer of CBS, "[t]he hard
news department became fully founded . . . in about 1953
or possibly at the latter part of 1952, and they [CBS]
stopped buying their material from Telenews."
2. The documentaries
The first documentary produced by CBS was the "See It
Now" show created and developed by Edward R. Murrow
and Fred W. Friendly in 1951. To produce the show, Palm-
er Williams, its producer, contracted with Hearst News for
camera crews, sound men, film editors, and even space to
work in. The film editors were represented by Local 771. In
1954, the contract with Hearst News was cancelled and
CBS bought its own equipment and made arrangements
1 The term "documentary film editors" as used herein embraces assistant
editors , librarians , and expediters represented by Local 771
COLUMBIA BROADCASTING SYSTEM, INC.
with a company called Information Productions (later
known as U.S. Productions). The employees of Hearst
News who had been working on the "See It Now" show
were placed by CBS on the payroll of Information Produc-
tions and continued to work on the show. Sometime later,
the cameramen and sound men were transferred to the
CBS payroll directly, but the film editors and assistant film
editors remained on the payroll of Information Produc-
tions.
The "See It Now" program ran for approximately 7
years, during which time some 200 shows were exhibited.
The public acceptance of the "See It Now" show led to the
production of other documentary films. A great number of
documentary films have been produced by CBS and are
still being produced today. Documentaries were originally
one-half hour in length. Later, they were increased to one
hour shows, and on some occasions ran one hour and a
half. Commenting on the effect of the documentary pro-
grams developed by CBS, Senior Director Williams agreed
that the documentary was something that "evolved," was
_"unique" and "that CBS developed a staff including
IATSE film editors whose unique skills contributed greatly
to the development of their prestige."
The various witnesses did not agree as to a precise defin-
ition of a documentary. Perhaps the important thing in the
context of the issues is to distinguish between a documen-
tary and what the parties referred to as "hard news." Thus,
Charles Van Bergen, Manager of Film Production for CBS,
agreed that a reasonable distinction between a documenta-
ry and hard news is as follows:
a documentary is a compilation in depth of a
story which is condensed from a large footage of film
to make a program.
. .. a hard news story is one which has significant
impact value as of the time it is shown because of the
recency of this particular development and therefore is
of interest, especially for the moment.
Marshall Davidson, Vice President of Operations, CBS
News, testified that it is almost impossible to describe what
is news and what is a documentary, because no two people
have the same opinion or definition or agreement on what
news and documentary is. However, he distinguished be-
tween documentaries and hard news as follows:
Defining news and documentary, basically documen-
taries are programs of a half hour or an hour in length
devoted to single subjects. . . . It is something that is
worked on for a week, and a month at a time . Getting
the entire subject together, it could be Justice Black,
which is one that was discussed, TV journalism, which
was edited for I guess three or four months.
Against this, we have our specials that we put on
nightly on the Watergate hearings These to me are
not documentaries, because they are done within 24
hours.
60 Minutes is defined as news by the News Division,
because it is of a basic format, a magazine format,
639
rather than a single subject format. All these-what
we call strip shows, which are shows that are on ev-
eryday, Cronkite News, Morning News, Saturday
News, Sunday News are called news and not docu-
mentaries, if we ever have to get into that definition.
As indicated by Vice President Davidson's definitions,
there are in addition to hard news and documentaries, a
class of shows called news specials with which we are not
concerned in the instant proceeding.2 It should also be not-
ed that, and the witnesses appear to agree upon this fact,
there is a gray area consisting of some shows which fall
between documentaries and hard news. Also, documenta-
ries are of various types, including religious documentaries,
travel documentaries, etc.
This much is clear: Documentaries often take months to
produce. In preparing them, film shot long before the con-
ception of the documentary is used, as on occasion are old
still pictures, as well as film shot in contemplation of the
documentary. Old as well as newly prepared audio tapes
are used. In planning the documentary, these are woven
together to prepare a show dealing with a particular sub-
ject, whether it be a historical or a currently controversial
or informative subject. In contrast, news programs deal
with current events of immediate interest to viewers. Speed
in the preparation of the news show is of paramount im-
portance, as in the case of newspapers trying to score a
"beat" in the publication of a news story.
These differences, in turn, lead to the employment of
different techniques by documentary film editors vis-a-vis
those employed by news film editors. Documentary film
editors use what is known as "the double system." Thus,
unlike news film editors, documentary film editors do not
work directly with the film itself. Rather, to avoid damag-
ing the film, the film is copied on magnetic tape which, in
turn, is edited and synchronized with the audio. Back-
ground audio, audio mix,' narration, and optical effects are
added, using sophisticated equipment designed for that
purpose.
On the other hand, the speed with which a news story
must be aired does not allow time for converting the film
shot by the news photographer into magnetic tape. There-
fore, the news editors use "the single system," i.e., they
work directly on the film, editing and splicing the film in
accordance with the directions of the news editor. Of ne-
cessity, this requires greater care in handling the film as
compared to handling magnetic tape which is, in effect, a
duplicate of the film.
The documentary film editors and assistant editors are
members of Local 771. The news film editors are members
of Local 1212 IBEW. Richard Kraut, Film Operations
Manager, is in general charge of the Local 771 editors;4
Charles Van Bergen, Manager of Film Production, is in
charge of the Local 1212 editors.
2 Senior Producer Williams agreed that a definition of a news special is
a news story telecast within a fairly contemporaneous period from the
time that it occurs except that it is longer than an ordinary news story
telecast say on the Cronkite news "
3
Audio mix is the blending of two or more sound tapes
Including assistant editors, librarian and expediter
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Vice President Davidson, prior to 1966,
documentaries were not handled by the News Division, but
by another department known as public affairs. Since 1966,
they have been handled by the News Division. Each docu-
mentary produced by CBS is treated as a separate entity in
the charge of its producer. Each documentary is assigned a
separate budget by CBS. As previously noted, from the
inception and for many years thereafter, documentaries
were worked on only by members of Local 771, while film
editors who were members of Local 1212 IBEW work on
hard news stories. Although, in recent years, CBS has as-
signed members of Local 1212 to work on certain docu-
mentaries , Local 771 editors have not been used on hard
news programs.
3. The certification and the bargaining history
On January 31, 1952, pursuant to a Decision and Direc-
tion of Election issued by the Board on December 17,
1951, in Case 13-RC-1888,5 an election was conducted
among certain employees of CBS. On February 14, 1952,
the Board issued a certification pursuant to which IBEW
was certified as the exclusive representative of a unit of the
following employees:
All technicians employed in the Employer 's Technical
Operations Departments and the Engineering Re-
search and Development Department , in New York
City and throughout the United States, including tech-
nicians employed in the laboratory in the General En-
gineering Department , draftsmen and machinists in
the Engineering Research and Development Depart-
ment , and motion picture cameramen and film editors
and cutters in New York City, but excluding film edi-
tors and cutters at the Employer 's Los Angeles, Cali-
fornia , establishments , sound effects employees em-
ployed at Chicago, Illinois, turntable operators em-
ployed at Chicago, Illinois, and St. Louis, Missouri,
lighting directors and special visual effects employees
in New York City and the lighting director in Los
Angeles, California , engineers in the General Engi-
neering and Engineering Research and Development
Departments , stage hands , manual or mechanical
cueing and titling employees , guards , watchmen, and
all supervisors as defined in the Act.
At no time since that certification was issued has it been
amended or revoked, nor has IBEW been decertified as the
representative of the employees listed above.
Although documentary film editors fall within the gener-
ic class of film editors encompassed in the certified unit,
IBEW has never bargained for the documentary film edi-
tors.' In the 1958 negotiations for an agreement between
CBS and IBEW, CBS proposed the inclusion of a clause
giving it the right to subcontract the editing of documenta-
ries. As a result, the following provision was included in
5 Reported at 97 NLRB 566
6 As previously noted, the term "documentary film editors" as used herein
embraces assistant editors, librarians, and expediters represented by Local
771
the agreement then negotiated and was inserted in every
agreement between IBEW and CBS until the 1972 con-
tract:
The work of editing and cutting motion picture film in
New York City may be sub-contracted where, in the
judgment of CBS, it is necessary to do so. This sub-
contracting privilege does not include editing and cut-
ting of news films, as distinguished from documenta-
ries , and is limited to editing and cutting on programs
entirely on motion picture film and those programs
predominantly on motion picture film but containing
some live and/or video tape elements. In any such
case , the sub-contracting privilege extends only to the
film portions and not to video tape.
Conversely, Local 771 entered into successive written
collective-bargaining agreements with subcontractors Ken-
co and Douglas-Lester on behalf of the documentary film
editors.7 Although these contracts were between the sub-
contractors and Local 771, the subcontractors signed such
agreements only after securing the acquiescence of CBS.
As Senior Director Palmer Williams, who participated in
these conferences, and in discussions with Local 771's rep-
resentative, put it "we won a couple and lost a couple."
The record also discloses that CBS notified Local 771 of
the hiring of, and wage increases given to, documentary
editors, as well as of the change from one subcontractor to
another
In 1972, CBS and IBEW entered into a contract which,
although it contained the provision giving CBS the right to
subcontract the editing of documentary films, limited that
right to the period beginning October 1, 1972 and ending
September 30, 1974 The agreement contains a union se-
curity provision, under which the documentary film editors
would have to become members of IBEW in order to retain
their employment with CBS. It is the provision limiting the
right of CBS to subcontract the editing of documentary
films, together with the union security provision, which has
precipitated the instant proceeding.
On April 30, 1973, Local 771 sent CBS a telegram re-
questing negotiations for a collective-bargaining agree-
ment . Thomas G. Holland, Jr., Assistant Director, Indus-
trial Relations, of CBS, orally rejected the request.
4. The relationship of the documentary film editors to
CBS
As previously noted, at the outset CBS produced its do-
cumentaries by the use of camera crews, sound men and
film editors employed by Telenews, a subsidiary of Hearst
News In 1954, the contract with Hearst News was can-
celled, and the film editors were placed by CBS on the
DuArt refused to sign such an agreement because it did not wish to
become involved in any labor problems of CBS, as, for example, a strike by
Local 771 against CBS However, DuArt followed the terms of the contract
between Local 771 and Douglas-Lester with regard to rates , holidays, vaca-
tions, etc When Maurice Murad, shop steward for Local 771, complained
to CBS Vice President Davidson that DuArt had not signed a contract,
Davidson expressed surprise and said "We have always signed the basic
agreement I don't understand that" He added that he would call the Busi-
ness Affairs Department and instruct them to have the contract signed
COLUMBIA BROADCASTING SYSTEM, INC.
payroll of Information Productions and continued to work
on the CBS documentaries. The documentary film editors
remained on the payroll of Information Productions from
1954 to 1959.8 Between 1959 and 1967, documentary film
editors were placed on the payroll of Kenco Films, Inc.
Between 1967 and 1970, the documentary film editors ap-
peared on the payroll of Douglas-Lester Productions, Inc.,
and since 1970 and continuing to the present time , the do-
cumentary film editors were on the payroll of DuArt Color
Corporation. Although documentary film editors appeared
on the payrolls of these purported subcontractors, it is
clear from the record that they were not employees of these
subcontractors. All that these subcontractors did vis-a-vis
the documentary film editors was to pay their salaries,
make the various payroll deductions, and arrange and pay
for various insurance coverages such as workmen's com-
pensation, unemployment, liability, and disability, for all
of which they were reimbursed by CBS together with a
service charge which, in the case of DuArt, at one time
amounted to a $110 per week, later increased to $120. As
a matter of fact, although the subcontractors issued the
checks, they did not even hand them to the documentary
film editors; rather, they were picked up by a messenger
from CBS and distributed by CBS to the documentary film
editors who were working at the premises of CBS. Indeed,
Stewart Deitch, Financial Vice President of DuArt Film
Laboratories, the parent of DuArt Color Corporation, tes-
tified:
We're doing this strictly as an aid to CBS; we're not
really their employer, these people.
According to Deitch, there was no monetary profit for
DuArt in this arrangement, and it was entered into as an
accommodation to CBS who is one of DuArt's major cus-
tomers for the developing and printing of motion picture
film. He testified further that when a representative of Lo-
cal 771 came to him asking for increased pension and wel-
fare payments, "I indicated that we would not pay it unless
we got approval from CBS since they were reimbursing us
for all out of pocket expenses." He then communicated
with Robert Burstein, Manager of Business Affairs of CBS,
who approved the increases. Similarly, Stanley D. Plotnick,
Deitch's predecessor, testified that DuArt does not do film
editing, nor does it employ any editors; and that CBS fixed
the rates of pay and he cleared all wage increases given to
the documentary film editors with Burstein. Nor have the
documentary film editors worked at the premises of any of
the subcontractors.9
Conversely, CBS hired the documentary film editors,
promoted assistant editors to editors, fixed their salaries,
granted or rejected requests for pay increases over the
union scale, and kept and okayed their timecards which
were sent to the subcontractors for computation of the
paychecks. As previously noted, the documentary film edi-
tors worked at the premises of CBS, under the direction,
supervision, and control of producers and directors of
8 In 1958, the Company changed its name to U S Productions
9 The record shows that only one documentary film editor worked for a
short period at DuArt's premises
641
CBS. In addition, grievances of the documentary film edi-
tors weie handled directly with officials of CBS and not
with the subcontractors. Thus, Shop Steward Maurice Mu-
rad handled grievances directly with Manager of Film Pro-
duction Kraut, Assistant Director of Industrial Relations
McCarthy, Producer Gene Deports, and Vice President
Davidson.
Manifestly, there must be a close intellectual and work-
ing relationship between the producer of a documentary
and its film editor who participates in the planning of the
documentary and who must understand and put into effect
the aims and views of the producer and the nuances which
the latter desires. The greater demands upon the documen-
tary film editors' professional and artistic skills are reflect-
ed in the fact that documentary film editors receive higher
salaries than do news editors.
In 1970, CBS changed its method of employing and pay-
ing documentary film editors. All, except Maurice Murad
who chose to remain as a staff documentary editor, were
placed on free-lance basis, i.e., they were hired for each
particular documentary and were paid only when actually
working on that documentary. The purpose of the change,
according to Vice President Davidson, was to render inop-
erative the seniority provision of the union contract of Lo-
cal 771 editors. At that time, they received severance pay
from CBS. Thus, Mtli Bonsignori received $9,000, based on
her 17 years of work for CBS, plus 4 weeks' vacation pay. 10
Also, they were granted a higher scale than was Murad. As
free-lance editors, they were free, when not actually work-
ing on a CBS documentary, to work for other networks,
and on one occasion Bonsignort worked on a documentary
for ABC. Free-lance editors receive holiday benefits, but
not vacations. Pension and welfare contributions are made
for them to the union fund.
B. Conclusions
1. The effect of the certification
The threshold issue in this case is whether the certifica-
tion of IBEW was intended to include documentary film
editors. It is difficult to conclude that such was the intent
of the certification, as television broadcasting was then an
infant industry and there were no documentary film editors
employed by CBS. Indeed, while the record is somewhat
vague on the subject, there is some doubt whether the certi-
fication was intended to include news film editors, as CBS
did not then employ news film editors as that craft is con-
stituted today. To the extent that CBS then may have em-
ployed "film editors and cutters," the record does not re-
veal precisely the duties of such employees. It is clear, how-
ever, that the employment of the documentary film editors
with whom we are concerned in this case was not even
contemplated when the certification was issued.
The issue then becomes whether such documentary film
editors when later hired by CBS, accreted to the unit. Perti-
nent in this regard is the bargaining history between the
parties. While IBEW actively represented the news film
10 Severance pay as provided in Local 77I's collective- bargaining agree-
ment was computed on the basis of one week's pay for each year of employ-
ment
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
editors, it has never represented the documentary film edi-
tors, although, as IBEW's counsel conceded, "1212 un-
doubtedly knew there were some film editors working at
CBS at the time [1954]." Rather, CBS and IBEW from and
after 1958 entered into collective-bargaining agreements
which gave CBS the privilege of engaging in subcontract-
ing for the services of documentary film editors. This was
not subcontracting in the true sense of that term. It was a
fiction, as the record convincingly demonstrates. And CBS
continued to go through the form of subcontracting, and
IBEW closed its eyes to the fictional character of the sub-
contracting by continuing to grant CBS the privilege of
subcontracting in every collective -bargaining agreement
thereafter until 1973. Fifteen years later, IBEW first sought
to claim that the documentary film editors accreted to the
unit by demanding a provision which would end the sub-
contracting privilege on September 30, 1974.
Conversely, the documentary film editors have at all
times been members of, and actively represented by, Local
771, with the full knowledge of CBS, who participated in
the negotiations for collective-bargaining agreements be-
tween Local 771 and the alleged subcontractors, and noti-
fied Local 771 of changes in status and salaries of the do-
cumentary film editors.
In these circumstances, I conclude that IBEW has been
guilty of laches in seeking at this late date to accrete the
documentary film editors to the unit. Cf. Ware Laborato-
ries, Inc., 98 NLRB 1141, 1142 (1952); American Radiator
and Standard Sanitary Corporation, 119 NLRB 204, 206
(1958); General Electric Company, 160 NLRB 504, 506
(1966); General Electric Company, 144 NLRB 88, 91 (1962).
I further find that by their conduct both CBS and IBEW
have waived the inclusion of the documentary film editors
in the unit. Cf. National Association of Broadcast Engineers,
105 NLRB 355, 363 (1953); General Electric Co., 180
NLRB 1094, 1095 (1969).
2. The documentary film editors as employees of CBS
It is clear from the record that, as previously noted, the
documentary film editors are employees of CBS. All of the
indicia of an employer-employee relationship are present:
The documentary film editors are hired and promoted by
CBS at salaries specified by Local 771's collective-bargain-
ing contracts, grants or rejects requests for pay increases in
excess of the contract, keeps their timecards and handles
their grievances. They work at the premises of CBS under
the direction, supervision and control of producers and
other officials of CBS. The employer-employee relation-
ship was acknowledged by CBS when Bonsignori was
transferred from staff to free-lance status. At that time (in
1970) she was given 17 years' severance pay. Had she been
considered an employee of Douglas-Lester (on whose pay-
roll she then appeared) she would have been entitled to no
more than 2 years' severance pay.
Conversely, they were not employees of DuArt or of the
other subcontractors, as freely acknowledged by DuArt's
financial vice president, except possibly to the extent that,
as defined by Section 2(2) of the Act, "[t]he term 'employ-
er' includes any person acting as an agent of an employer,
directly or indirectly . . "
The bargaining history regarding the documentary film
editors confirms the conclusion that they were and are em-
ployees of CBS. Thus, although the various subcontractors
(except DuArt) executed collective-bargaining agreements
with Local 771, they did so only with the acquiescence, and
upon the direction, of CBS who was, in fact, paying the
salaries and abiding by the terms and working conditions
prescribed by the collective -bargaining agreement.
Respondent contends that the free-lance status of the
documentary film editors raises a question whether they
were independent contractors, rather than employees with-
in the meaning of the Act. Respondent relies upon Radio
City Music Hall Corp v. United States, 135 F.2d 715 (C.A.
2, 1943), and Strand Art Theatre, Inc., 184 NLRB 667
(1970). I find these cases inapposite . They involved enter-
tainers who created their own acts and had the right to
control the manner and means of performing the work. In
Strand, the only direction they received from the theater
operator related to the length and number of scenes and
scantiness of costumes as measured by local regulations.
Apart from supplying the theater stage, music and lights,
the operator played no part in their performance. In Radio
City, the theater operator did somewhat more : He some-
times put a song of his own choosing into the act, at times
amplified or reduced the volume of a singer's voice, direct-
ed the staging according to his requirements, fixed the
times for rehearsals, the number of performances, required
promptness in attendance, and prescribed the order of
dances and songs. Sometimes he insisted on leaving out
parts of the dialogue or other features when he thought
them unsuitable for his audience.
In the instant case, the documentary film editors cannot
be considered to be independent contractors. CBS main-
tains a daily record of their working time, which is sent to
the "subcontractor" for the computation of their pay. They
work under the general direction of Film Operations Man-
ager Kraut and under the specific directions of the individ-
ual producer who is in charge of the particular documenta-
ry. While the documentary film editors call upon their ar-
tistic and technical skills in making the documentary, they
do so only to meet the demands of the producer who has
envisaged the documentary and the message he seeks to
put across. It is he who has the complete responsibility of
creating, developing and putting the documentary into its
final form for showing. In this context, the documentary
film editor is merely an artisan, albeit an artistic one. Un-
der no circumstances can the documentary film editor sub-
stitute his judgment as to content, detail or effect for that
of the director, or act contrary to his direction. In sum, in
all respects the documentary film editor must satisfy the
demands of the producer. I therefore find and conclude
that the documentary film editors, though free-lance, are
employees of CBS and not independent contractors.
N.L.R.B. v. United Insurance Co., 390 U.S. 254 ( 1968).
3. The appropriate unit
The question of what constitutes an appropriate unit
may not be divorced from the history of collective bargain-
ing in this case. Thus, if we were to consider what would be
an appropriate unit absent the bargaining history, it might
COLUMBIA BROADCASTING SYSTEM, INC.
be concluded that a unit encompassing all film editors
would be appropriate, despite the differences of functions
and skills. However, the Board is not called upon to make
an initial unit determination. Much water has passed under
the bridge since the initial unit determination was made
more than 20 years ago. Relationships have evolved and
been established since that time . These relationships can-
not now be ignored. "Thus, the Board has long held that it
will not disturb an established bargaining relationship un-
less required to do so by the dictates of the Act or other
compelling circumstances." (The Great Atlantic & Pacific
Tea Co, Inc., 153 NLRB 1549, 1550 (1965) ). See, also,
West Virginia Pulp and Paper Co., 120 NLRB 1281, 1284
(1958); West Virginia Pulp and Paper Company, 122 NLRB
738, 746, fn. 12 (1958); The Murray Company of Texas, Inc.,
107 NLRB 1571, 1573 (1954).
The bargaining history indicates beyond doubt that CBS
has recognized Local 771 as the exclusive bargaining repre-
sentative of a unit consisting of documentary film editors,
assistant editors, librarians, and expediters for over 20
years. As the Board said in General Electric Co., 180 NLRB
1094, 1095, "the record establishes a controlling history of
... bargaining . . . in which the Union has been recog-
nized as the exclusive bargaining agent." To hold that these
employees did not constitute an appropriate unit repre-
sented by Local 771 would be to ignore "the realities of the
relationship between the parties." (Ibid.)
The evidence concerning the librarian of documentary
films is rather sparse. All that appears is that CBS does
employ such a librarian," who works in Fort Lee, New
Jersey, and services the documentary film editors and as-
sistant editors. Presumably, his being stationed in New Jer-
sey, rather than in New York City, is dictated by storage
considerations. At any rate, such librarians have been
treated in exactly the same manner as the editors, and for
historical reasons should be included in the unit. The same
is true with regard to expediters. At present, there is only
one expediter, Ray Manookian. He works on documenta-
nes under the Local 771 contract, and appears regularly on
the DuArt payroll. Vice President Davidson testified that
he considered the expediter to be part of management, but
no evidence was offered to substantiate that bare assertion.
In addition to the fact that Manookian has been treated by
CBS as a member of the documentary unit, it appears from
the record that he receives substantially less pay than the
documentary film editors, a circumstance which militates
against the conclusion that he is part of management.
I therefore find and conclude that a unit consisting of
documentary film editors, assistant editors, librarians and
expediters constitutes an appropriate unit for collective
bargaining within the meaning of the Act.
This conclusion is not affected by the fact that in recent
years CBS has assigned some news film editors to work on
certain documentaries. CBS did not thereby effectuate any
real integration of the units; documentary film editors were
not assigned to do hard news editing. More importantly,
despite such assignments from time to time, CBS continued
to recognize the dichotomy between Local 771 editors and
11
Listed on the payroll records as "Archives "
643
IBEW editors. Each continued to be separately supervised;
the pay differential continued to be observed; each unit
was governed by a different collective-bargaining contract;
and the documentary film editors, assistant editors, librari-
an and expediter continued on the payrolls of the various
"subcontractors."
4. The violation of Section 8(a)(2) of the Act
The foregoing discussion compels the conclusion that
when CBS entered into its most recent contract with
IBEW, in which it agreed to cease its practice of subcon-
tracting for the work of documentary film editors, it ren-
dered unlawful assistance to IBEW, in violation of Section
8(a)(2) of the Act. The effect of the foregoing, when cou-
pled with the union security clause, was to compel the Lo-
cal 771 editors, assistant editors, librarian and expediter to
become members of IBEW after September 30, 1974, if
they wanted to retain theirjobs,12 despite the fact that they
had never been represented by IBEW, were separately rep-
resented by Local 771, and had been recognized and dealt
with by CBS as a separate unit. Dancker & Sellew, Inc., 140
NLRB 824, 826 (1963); Food Employers Council, Inc., 163
NLRB 426, 428-429 (1967).
I therefore find and conclude that CBS violated Section
8(a)(2) and (1) of the Act when it entered into a collective-
bargaining agreement with IBEW, containing a union se-
curity clause , in which it agreed to cease subcontracting for
the services of documentary film editors.
5. The violation of Section 8(a)(5)
The effect of the most recent collective-bargaining agree-
ment with IBEW was to withdraw arbitrarily recognition
of Local 771 as the exclusive bargaining representative of
the documentary unit. In so doing, CBS disregarded the
fact that through the agency of its various "subcontrac-
tors" it had for many years entered into collective-bargain-
ing contracts with Local 771. Such conduct is patently vio-
lative of Section 8(a)(5) and (1) of the Act.
In addition, CBS further violated Section 8(a)(5) and (1)
of the Act when, on April 30, 1973, Local 771, faced with
the consequences of the foregoing action by CBS, request-
ed negotiations for a contract, and CBS rejected the re-
quest.
Despite the fact that Local 771 has admittedly repre-
sented the documentary unit for many years, Respondent
and IBEW contend that the allegation that CBS failed and
refused to bargain with Local 771 must be dismissed be-
cause the General Counsel failed to prove that Local 771
represented a majority in the documentary unit. Both rely
upon Ramada Inns, Inc., 171 NLRB 1060 (1968). The facts
of that case are entirely dissimilar from those of the instant
case. However, the Board in Ramada set forth the applica-
ble rule which supports the conclusion that proof of Local
12 That the natural and obvious effect of the collective-bargaining con-
tract with 1BEW was to force the Local 771 editors to join IBEW is further
supported by the testimony of Murad of his conversation with Vice Presi-
dent Davidson in April 1973, when the latter told Murad of the new subcon-
tracting provision and "that he would like to make me an offer contingent
on one thing, and that is that I affiliate with Local 1212 of the IBEW."
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
771's majority was properly dispensed with. In Ramada,
the Board said:
The Board's presumption principles relied upon by the
General Counsel, which dispense with the normal re-
quirement of independent affirmative proof of majon-
ty as of the time of a bargaining demand, are not
properly applicable to a case of this sort. They have
been limited to situations where the refusal to bargain
is with a Board certified union or with an incumbent
union which has theretofore achieved a bargaining
status evidenced by a collective-bargaining agreement,
or, at least, by prior recognition. (171 NLRB at
1062, footnotes omitted)
In all the years of its dealing with Local 771, CBS never
raised the issue of the Union's majority or expressed any
doubt thereof. To the contrary, by its course of conduct,
CBS recognized Local 771 as the exclusive bargaining rep-
resentative of the documentary unit and entered into col-
lective-bargaining agreements with that Union through the
instrumentality of its "subcontractors" who were, in fact,
its agents for that purpose. And it abided by the terms of
those contracts. To hold now after its conduct during all
these years, that CBS had not recognized and entered into
collective-bargaining contracts with Local 771 would be to
look only at the form and disregard substance. I therefore
conclude that the presumption of Local 771's majority was
properly relied upon by the General Counsel and that
proof of Local 771's majority was unnecessary in the ab-
sence of evidence that Local 771 had lost its majority.
I therefore find and conclude that CBS violated Section
8(a)(5) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in Section IV,
above, occurring in connection with the operations of the
Respondent set forth in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(2), (5)
and (I) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully withdrew
recognition from Local 771 and refused to bargain with
that Union in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that it be ordered to recognize Lo-
cal 771 as the exclusive representative of all its employees
in the appropriate unit described above and, upon request,
to bargain in good faith with Local 771 as the exclusive
representative of said employees with regard to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment. By requiring CBS to recognize and bargain, upon
request, with Local 771, the Board will once and for all
destroy the fiction of subcontracting and render nugatory
the efforts of CBS and IBEW to force the documentary
film editors into IBEW, thereby remedying the unlawful
assistance which CBS gave to IBEW, in violation of Sec-
tion 8(a)(2) and (1) of the Act.
CONCLUSIONS OF LAW
1. CBS is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 771, Local 1212 of IBEW, and IBEW are labor
organizations within the meaning of Section 2(5) of the
Act.
3. The unit set forth in section IV above of this Deci-
sion constitutes an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Local 771 is, and at all times material herein has been,
the exclusive representative of the employees of the afore-
said appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. The members of said appropriate unit have been at all
times material herein and are employees of CBS.
6. By entering into a collective-bargaining agreement
with IBEW in which it agreed to terminate its practice of
subcontracting for the services of documentary film edi-
tors, CBS has unlawfully granted assistance to Local 1212,
and thereby engaged in an unfair labor practice in viola-
tion of Section 8(a)(2) and (1) of the Act.
7. By withdrawing recognition from Local 771 as the
exclusive bargaining representative of the employees in the
said appropriate unit and by refusing to bargain with Local
771 as such exclusive representative, CBS has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
Columbia Broadcasting System , Inc., its officers , agents,
successors and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and, upon request,
bargain collectively with Motion Picture Film Editors Lo-
cal 771, International Alliance of Theatrical Stage Employ-
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
COLUMBIA BROADCASTING SYSTEM, INC
ees and Movie Picture Machine Operators of the United
States and Canada, AFL-CIO, as the exclusive representa-
tive of its employees in the appropriate unit described be-
low with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and
if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All documentary film editors, assistant editors, librari-
ans and expediters, excluding office clerical employ-
ees, guards, and supervisors as defined in the Act.
(b) Assisting Local 1212 International Brotherhood of
Electrical Workers, AFL-CIO-CLC, and/or International
Brotherhood of Electrical Workers, AFL-CIO-CLC, by
forcing or compelling members of the appropriate unit de-
scribed above to become members of said unions, and
thereby discouraging membership in Local 771.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights to self-organization, to form, loin, or assist any labor
organization, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the provi-
so to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act.
(a) Recognize and, upon request, bargain collectively
with Motion Picture Film Editors Local 771, International
Alliance of Theatrical Stage Employees and Movie Picture
Machine Operators of the United States and Canada,
AFL-CIO, as the exclusive representative of the employees
in the aforesaid appropriate unit with respect to rates of
pay, wages, hours of work, and other terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its offices in New York, New York, copies of
the attached notice marked "Appendix." 14 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by an authorized repre-
sentative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days of the receipt of this Decision, what
steps Respondent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
645
WE WILL NOT fail or refuse to recognize and, upon
request, bargain collectively with Motion Picture Film
Editors Local 771, International Alliance of Theatrical
Stage Employees and Movie Picture Machine Opera-
tors of the United States and Canada, AFL-CIO, as
the exclusive representative of our employees in the
appropriate unit described below with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment, and if an under-
standing is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All documentary film editors, assistant editors, librari-
ans and expediters, excluding office clerical employ-
ees, guards, and supervisors as defined in the Act.
WE WILL NOT assist Local 1212, International of
Electrical Workers, AFL-CIO-CLC, and/or Interna-
tional Brotherhood of Electrical Workers, AFL-CIO-
CLC, by forcing or compelling members of the appro-
priate unit described above to become members of
said Unions.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the rights to self-organization , to form , loin, or as-
sist any labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion , or to refrain from any and all such activities,
except to the extent that such right is affected by the
proviso to Section 8 (a)(3) of the Act.
WE WILL recognize and, upon request , bargain col-
lectively with Motion Picture Film Editors Local 771,
International Alliance of Theatrical Stage Employees
and Movie Picture Machine Operators of the United
States and Canada , AFL-CIO, as the exclusive repre-
sentative of our employees in the appropriate unit de-
scribed above with respect to rates of pay, wages,
hours of employment , and other terms and conditions
of employment , and if an understanding is reached,
embody such understanding in a signed agreement.
COLUMBIA BROADCASTING SYS-
TEM, INC.
14 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"