Directors Guild Of America, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 626 (N.L.R.B. 1985)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Directors Guild of America , Inc. and Universal Tele-
vision , A Division of Universal City Studios,
Inc. and Freight Drivers, Warehousemen and
Helpers Local Union No. 390 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 12-
CD-308
26 September 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN- DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The charge in this Section 10(k) proceeding was
filed 5 February 1985 by the Employer, alleging
that the Respondent, Directors Guild of America,
Inc. (the Guild), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployer to assign certain work to employees if rep-
resents rather than to employees represented by
Freight Drivers, Warehousemen and Helpers Local
Union No. 390, International Brotherhood 'of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America' (Teamsters • Local 390). The -hearing
was held, 12 and 13 March 1985 in Miami, Florida,
before Hearing Officer-Eduardo Soto.
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.
1. JURISDICTION
The Company, a Delaware corporation having
its administrative offices in Los Angeles, California,
has been engaged in the production of theatrical
and television films throughout-the United States,
including Miami, Florida, where it is currently en-
gaged in the production of the television series
"Miami Vice." During the past 12 months' in the
course and conduct of its business, operations the
Company has purchased and received at its Miami,
Florida facility products, goods, and materials
valued in excess of $50,000 directly from points lo-
cated outside the State of Florida. The parties stip-
ulate, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that ' the Guild and Teamsters
Local 390 are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In late 1983 or early 1984 the Employer filmed a
pilot television program which soon thereafter de-
veloped into the series entitled "Miami Vice." On
21 December 1984 the Employer recognized
Teamsters Local 390 as the exclusive collective-
bargaining representative of employees performing
location work for the "Miami Vice" production.
Teamsters Local 390 classifies these individuals as
location managers . On 21 January 1985 the Em-
ployer entered into a collective-bargaining agree-
ment with Teamsters Local 390 which covered the
location managers . The agreement's effective .date
is 1 January 1985. On 24 January 1985 an unnamed
agent of the Guild telephoned the Employer's vice
president of industrial relations 'Gary Hughes to in-
quire whether the location work' had been assigned
to the Teamsters-represented ' lo cation managers.
Upon receiving verification from Hughes of this as-
signment , the Guild agent told Hughes that the lo-
cation work properly belonged to the Guild's as-
sistant directors and that if the Employer did not
reassign ,the work to •the assistant directors the
Guild "would pull their people." The Employer
thereafter filed the charge in this case.
B. Work in Dispute
The work' in dispute is described generally as
"location work" performed for the Employer's
"Miami Vice" : series in South Florida. Employees
performing "location work" locate and survey pos-
sible filming sites and arrange with the appropriate
parties for use ,of these sites . These employees are
present at the 'site during the filming and' are re-
sponsible for any followup claims for damage to
the property incurred during the Employer's use of
it.
C. Contentions of the , Parties
The Guild contends that the disputed- work
properly belongs, to employees classified within its
organization as second assistant directors. i It, points
to training programs and seminars which it offers
as. indicative of assistant directors' skills and knowl-
edge of their craft. The Guild, asserts that because
of their superior abilities, assistant directors can
and do perform a broader range of duties than lo-
cation . managers, leading to enhanced efficiency
and -economy of operation. The Guild further as-
serts that assistant directors have historically per-
formed location work in the film industry-first in
' For brevity these individuals will be referred to in this decision
simply as assistant directors. -
276 NLRB No. 59
DIRECTORS GUILD (UNIVERSAL STUDIOS), 627
1954 under the representation of the. International
Alliance of Threatrical Stage Employees and later
in 1963 with the' Guild: The Guild states that its
Basic Agreement. with over 200 employers in the
film industry .(including the. Employer's parent
company) provides that -assistant directors will per-
form location work. Finally,-.the Guild, contends
that,assistant directors have actually performed lo-
cation work for the Employer on its "Miami Vice"
project. -
Teamsters Local 390 contends, that location man-
agers which it represents should be awarded the
disputed work because: (1) the, Employer's past
practice has been to use location managers on the
"Miami Vice" project;-(2) it has an effective collec-
tive-bargaining agreement with the Employer cov-
ering these employees; and (3) the. Employer has
currently assigned location managers to perform lo-
cation work. Teamsters Local 390 asserts that using
location managers for the disputed work contrib-
utes to the efficient and economic operation of the
Employer's project because location managers are
able to drive their own vehicles to perform loca-
tion work whereas Guild-represented assistant di-
rectors`would have to rely on' other Teamsters-rep-
resented' employees to transport them to the loca-
tions. Finally, Teamsters Local 390 states that' in-
dustry practice is that location managers perform
location work.
The Employer contends that it employs both lo-
cation managers and assistant directors on "Miami
Vice." The Employer states that it has assigned the
disputed work to location managers represented by
Teamsters Local 390. The Employer states that the
duties of assistant directors are more comprehen-
sive than those of the location ' managers and that
the two groups are not interchangeable. The Em-
ployer has declined to state its preference as to
which group should be awarded the disputed work
in this proceeding.
D. Applicability of the Statute
Before the Board may proceed with a" determina-
tion of a 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) of the Act
has ' ,been violated and that the parties have not
agreed on a method for voluntary adjustment of
the dispute.
The parties stipulated that following the ' Em-
ployer's recognition -of Teamsters Local 390 as the
representative of location managers performing lo-
cation work, an agent of the Guild advised the
Employer that unless the Employer reassigned the
disputed work to the Guild, the Guild would "pull
its people" off the "Miami Vice" production.
During the course of the hearing and on its con-
clusion, Teamsters Local 390 moved to quash the
notice of hearing on the grounds that the dispute
was not a true jurisdictional dispute but_rather was
representational in -nature. Teamsters Local `390
argued that the Guild's assertions that it was not
concerned about the identities of the individuals
performing the location work but only that they be
classified as assistant directors under the Guild's
system is evidence of a representational intent and
inconsistent with objectives properly cognizable in
a 10(k) proceeding, The Guild asserts that the issue
is solely a work jurisdiction dispute and that the
position of Teamsters Local 390 is not supported
by record evidence. The motion to quash' was
therefore referred to the Board for ruling.2
Two factors may contribute to the appearance
that the. Guild's interest is representational. First,
there is evidence that some former or current em-
ployees performing location work for the Employ-
er's "Miami Vice" production hold membership in
both the Guild as assistant directors and in Team-
sters Local 390 as location -managers. Second, the
Guild has stated that it is willing to represent
anyone who meets" the requisites of its assistant di-
rector classification, including individuals who
might currently be performing location work for
the Employer. However these factors do no over-
ride the fact that both the Guild and Teamsters
Local 390 claim that employees within their re-
spective representational -authority are the single
proper group to -perform, the location work. This is
the essence of a jurisdictonal dispute under Section
8(b)(4)(D) of the Act-the requirement of a choice
between two groups claiming the same work.3
There is ample evidence in the record that the clas-
sifications of local manager and assistant director
are distinct and different from one another4 and
that the Guild has threatened coercive measures (to
"pull its people") against the Employer to win the
assignment of the work for its group.` As these cir-
cumstances depict not' a representational 'interest
but a classic work 'jurisdiction claim , we deny
Teamsters Local 390's motion to quash.
2 In its posthearing brief Teamsters Local 390 presented no facts or
argument relative to its motion to quash but proceeded on the stated as-
sumption that a ,lunsdictional dispute exists . -
8 See generally Communications Workers (Mountain States Telephone),
118 NLRB 1104 (1957), Teamsters Local 222 (Jelco, Inc), 206 NLRB 809
(1973).-Cf. Food & Commercial Workers Local 1222 (Fed Mart Stores), 262
NLRB 817 ( 1982) -
* The Guild presented evidence that assistant directors'perform more
comprehensive 'duties than location managers The description of the
functions of these two classifications differ in several respects In particu-
lar, assistant directors perform a wider range of duties associated with the
prelocation breakdown of the script and the on -set'direction of back-
ground and crowd control -
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that there. is no agreed-
upon method.to which all parties are bound for the
voluntary settlement of this dispute. -
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method of 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.
(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 1743' (J. A. Jones Construction),
135' NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute. -
1. Certifications and collective-bargaining
agreements
The parties stipulated- -that there is no outstand-
ing Board certification of representative of employ-
ees performing location work.
In 'support of its claim, the Guild entered' into
evidence an unsigned copy of its Basic Agreement
of - 1984 with over 200 members of a multiemployer
bargaining unit . The multiemployer group includes
the parent company of the Employer. The scope of
the . Basic Agreement extends throughout the
United States, its dominions, islands, and Canada.
The Guild contends that because -of the Basic
Agreement's coverage of location work, the disput-
ed work in this case properly belongs to assistant,
directors. The Guild- also -disputes the validity of
any alleged agreement between the Employer and
Teamsters Local 390, arguing that the purported
agreement embodying recognition was the coerced
product of a Teamsters strike on the `-`Miami Vice"
project.
Teamsters Local 390 argues that it has a signed
agreement with the Employer, effective January
1985, covering employees performing the location
work on the "Miami Vice" project. This docu-
ment, referred to as an Addendum to the Feature
Film Agreement, was made part of the, record.
Teamsters Local 390 also submitted an unsigned
copy of its agreement with the Employer covering
all drivers, warehousemen, and helpers used on the
"Miami Vice" production. That document is
headed "Feature Film Agreement."5 The, Adden-
dum applies specifically to the "Miami Vice" work
and'its terms are directed solely to this particular
project rather than to a geographic area ., Teamsters
Local 390 contends- that this agreement overrides
any general or basic agreement that the Guild may
have with film industry employers covering loca-
tion-type work. -
Based ' on the applicability of the collective-bar-
gaining agreement between the. Employer 'and
Teamsters Local 390, we find that this factor
favors an award of the' disputed work to-the Team-
sters-represented employees.
2. Company preference and past practice
The Employer declined to state a preference
either at the hearing or in its posthearing brief as to
which' group should be awarded the disputed
work. -
The record discloses' that when filming on
"Miami Vice" began, the Employer used unrepre-
sented employees to perform location work. The
record shows that some of these individuals held
membership in either the Guild as assistant direc-
tors or in Teamsters Local '390 as location manag-
ers or both. However, these employees worked on
"Miami Vice" outside of their union status. Until
21 December 1984, the Employer did not pay em-
ployees performing location work according to any
contractual pay rate. On that date, the Employer
recognized Teamsters Local 390 as the representa-
tive of the employees performing location work.
While past practice is mixed, the current assign-
ment of the Employer is to location managers rep-
resented by Teamsters Local 390. Accordingly, this
factor favors Teamsters-represented employees
being awarded the disputed work.
3. Area and industry practice
The Guild asserts that its Basic Agreement (re-
ferred to in section 1, above) supports its claim for
the instant location work. The Guild points to bar-
gaining history in the industry dating back to the
1950s when assistant directors regularly performed
location-type duties for the "giants" in the industry
as well as, for lesser known film production compa-
nies . The Guild states that there are approximately
800 assistant directors performing location work
throughout the country, including approximately
30 in the State of Florida. -The Guild also intro-
duced testimony regarding credits from various
6 Testimony establishes that following a diligent search, the Employer
was unable to produce a signed copy of the Feature Film Agreement
However, both parties to this contract assert that its terms have been ob-
served , and-they consider it to be in effect
. DIRECTORS GUILD (UNIVERSAL STUDIOS) 629
films which listed assistant directors among those
who contributed to the production of the film.
Teamsters Local 390 introduced an agreement
between a sister Teamsters local, Local 399 from
Los Angeles, and the Alliance of Motion Picture
and Television Producers in which the multiem-
ployer group ' agrees to use location managers to
perform location work within a 13-state area in
western United States. The Alliance of Motion Pic-
ture and Television Producers names the Employ-
er's parent company as a member. Teamsters Local
390 also contends that there is an agreement be-
tween Teamsters Local 79 in northern Florida and
another employer in the film industry in which that
employer recognizes that location work will be
performed by location managers.
Based on the above, it appears that area and in-
dustry practice is 'mixed. Both the Guild and the
Teamsters have entered into various agreements
with film industry employers which purport to
cover location work similar to that at issue in this
proceeding. Accordingly, we find that this factor
does not favor either party.
4. Skills and training
The Guild points to its 2-year training course
and its sponsorship of numerous seminars held
every year as evidence that its assistant directors
possess greater skills and knowledge of their jobs
than Teamsters-represented employees. The de-
scription of the training course states that it was
begun in 1969 pursuant to a collective-bargaining
agreement between the Guild and the Film Pro-
ducers Association of New York, Inc. and that it is
"designed to emphasize the administrative and
managerial functions characteristic of Assistant Di-
rectors and to familiarize the Trainees with the
paper work and proper maintenance of records, in-
cluding the preparation of call sheets, production
reports, and requisitions ; to acquaint them with the
working conditions of . the collective-bargaining
agreements of industry guilds and unions; and to
give them a basic knowledge of the administrative
procedures in motion picture production, including
production and some post-production operations."
The program is open to a limited number of appli-
cants, involves on-the-job training, and it is intend-
ed to enhance the progression of assistant directors
in their film production careers, leading ultimately
to the level of the producer. In addition to this
training course the Guild offers seminars in sub-
jects ranging from financial matters and insurance
to use of equipment needed on the set. The Guild
contends that these projects are indicative of the
greater skills and professionalism associated with its
employees' approach to film production and that
this better qualifies assistant directors to perform
location work.
Teamsters Local 390 contends that location man-
agers who have worked on "Miami Vice" have
demonstrated their competence on the job for the
Employer. It points to one location manager
having been given the responsibility by the Em-
ployer to hire others to perform location work for
"Miami Vice" as indicative of the Employer's con-
fidence in the abilities of location managers. Team-
sters Local 390 also points to testimony from a
Guild witness that Teamsters-represented location
managers are qualified to perform the disputed
work. It also states that in order to be,represented
by Local 390 as a location manager, an individual
must have worked in the industry as a location
manager, further evidence of the level of skill and
experience which is the standard for Teamsters
representation. Teamsters Local 390 points, in con-
trast, to the fact that the Guild requires only that
an individual be working as an assistant director in
order to qualify for membership within that classi-
fication.
The evidence regarding- formal training weighs
in favor of the Guild-represented assistant direc-
tors. While these training seminars and courses are
not required for working as an assistant director
under the Guild's system, they are nevertheless in-
dicative of the emphasis on encouraging profession-
alism and broadening the understanding of the
entire production process. Teamsters Local 390
emphasizes the quality of job performance as evi-
dence of the proven capabilities of location manag-
ers to perform the disputed work. Because the lo-
cation work on "Miami Vice" specifically involves
those duties within the location managers' expertise
it would appear that the ability successfully to per-
form those functions is the critical factor. It is ap-
parent from the record, however, that employees
represented by either union possess the skills neces-
sary to perform the disputed work. Accordingly,
we find that the factors for skills and training are
not weighted persuasively toward either the em-
ployees represented by the Guild or those repre-
sented by Teamsters Local 390.
5. Economy and efficiency of operation
The Guild contends that its assistant directors
are generally. more capable of performing a wider
range of duties than location managers . The Guild
contends that assistant directors are involved in the
creative aspects of film production , i.e., breaking
down the script , movement of the cast members on
the set, directing background action , and regulating
crowd control , which will contribute to the more
efficient operation of the production . Teamsters
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 390 asserts that because the terms of its
agreement with the Employer provide that location
managers will be able to drive their own vehicles
in performing their location work, the costs of pro-
duction will be lessened for the Employer, i.e., the
Employer will not have to pay a Teamsters Local
390 driver (the other, Teamsters-represented group
on the "Miami Vice" production) to transport as-
sistant directors during the course of their on-the-
job travel. Teamsters Local 390 argues that not
only would this be less costly for the Employer,
but it would also streamline the production proc-
ess.
While the assistant directors' familiarity with the
entire production process could benefit the Em-
ployer's overall production methods and thereby
enhance efficiency, it has not been demonstrated
that this expertise actually results in a superior op-
eration. The fact that the Teamsters-represented
employees are permitted to use their own vehicles
in peforming location work would more tangibly
reduce the number of employees involved in a par-
ticular job. Accordingly, we find that the aspect of
economy and efficiency of operation slightly favors
an award of the disputed work to the location man-
agers represented by Teamsters Local 390.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Teamsters
Local 390 are entitled to perform the work in dis-
pute. We reach this conclusion relying on the col-
lective-bargaining agreement, employer assignment,
and economy and efficiency of operation. In
making this determination, we are awarding the
work to employees represented by Teamsters
Local 390, not to that Union or its members. The
determination 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 Universal Television, a Division
of Universal City Studios, Inc., represented by
Freight Drivers, Warehousemen and Helpers Local
Union No. 390, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America are entitled to perform location work
on the Employer's "Miami Vice" television series
in South Florida.
2. Directors Guild of America, Inc. is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force the Employer to assign the disput-
ed work to employees represented by it.
3. Within 10 days from this date, Directors Guild
of America, Inc. shall notify the Regional Director
for Region 12 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.