Int'l. Photographers Local 659

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 860 (N.L.R.B. 1975)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Photographers Local 659, affiliated with
International Alliance of Theatrical Stage Employ.
ees and Moving Picture Machine Operators of the
United States & Canada, AFL-CIO and King
Broadcasting Company and Local Union No. 46 of
the International Brotherhood of Electrical Work-
ers, AFL-CIO.' Case 19-CD-242
March 4, 1975
DECISION AND DETERMINATION OF
DISPUTE
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a Washington corporation engaged in
commercial radio and television broadcasting
through stations in Washington and Oregon, includ-
ing station KING-TV in Seattle, Washington, the
location of the present controversy, from which the
latter station annually derives revenues in excess of
$100,000. Accordingly, we find that the Employer is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed by King Broadcasting Company,
herein called Employer, alleging that International
Photographers Local 659, affiliated with Internation-
al Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States & Canada, AFL-CIO, herein called IATSE,
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign certain work to
employees represented by IATSE rather than to
employees represented by Local Union No. 46 of the
International Brotherhood of Electrical Workers,
AFL-CIO, herein called IBEW.
Pursuant to notice, a hearing was held before
Hearing Officer Timothy D. Nelson on December
11, 12, and 13, 1974. All parties, including the
Employer, IATSE, and IBEW, appeared at the
hearing and were afforded full opportunity to be
heard , to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer, IATSE, and IBEW filed briefs.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I The names of the parties appear as amended at the hearing.
s Pursuant to Sec. 102.90 of the Board's Rules and Regulations , Series 8,
as amended , the Employer requested special leave to file a brief in reply to
the brief filed by IBEW. IATSE also filed a brief entitled "Objections to
Brief Submitted By I.B.E.W." which is in the nature of a reply brief. IBEW
filed a statement opposing the Employer's request . The Employer's request
is based on IBEW's assertion in its brief that this case does not fall within
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IATSE
and IBEW are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The Employer operates an NBC-affiliated televi-
sion station (KING-TV) in Seattle, Washington,
which is the only station involved in the present
dispute. In order to obtain fast coverage of the
November 5, 1974, general election, the Employer
leased a portable, hand-held electronic video tape
camera from a local distributor. This camera is a
product of recent technological advances and, with
appropriate support systems, is capable of recording
a video image on video tape for storage and later
broadcast through conventional station equipment or
televising "live." About a week prior to the election,
the Employer notified Phil Sturholm, the Employer's
chief cameraman in the news department and a
member of IATSE, that he would be operating the
camera on election day and directed him to familiar-
ize himself with its operation. On November 5,
Sturholm used the camera and its component video
tape recorder and battery pack to cover various
election races. The recorded material was then
dispatched to the station and was "replayed" on the
air shortly thereafter. The camera was not used to
broadcast live.
Prior to election day, IBEW protested the assign-
ment, claimed that it was a violation of the IBEW
collective-bargaining agreement, and subsequently
initiated steps to secure arbitration. However, as of
the ambit of Sec . 8(bX4XD) and the notice of hearing should be quashed
because the work in dispute was performed by a supervisor . Inasmuch as we
find infra, contrary to IBEW's contention, that there is reasonable cause to
believe that Sec. 8(bx4XD) has been violated , whether or not that individual
was a supervisor , we hereby deny the Employer's request to file a reply brief,
and we have disregarded the substantive material contained in that request
and in IATSE's brief entitled "Objections to Brief Submitted by I.B.E.W."
216 NLRB No. 164
INT'L PHOTOGRAPHERS LOCAL 659 861
the time of the hearing, no arbitration date had been
scheduled. '
On November 14, 1974, IATSE Representative
Gerald Smith sent a telegram to the Employer's
station manager which took note of IBEW's claim to
the work and its request for arbitration, and further
stated:
... unless appropriate jurisdiction is awarded
to our personnel we are prepared to take such
economic action as we deem necessary to protect
the employees under our contract including the
establishment of picket lines and/or other activi-
ties that may be necessitated.
On November 15, 1974, the Employer filed the
instant charge.
The Employer does not presently own a video tape
camera and has not used one at any time other than
on November 5, 1974. However, the Employer's
station manager testified that there is a "high
probability" that the Company would purchase one
after an analysis of the costa and possible further
experimentation on a rental basis with the various
available models.4
B. The Work in Dispute
The work in dispute concerns the use and opera-
tion of a portable, hand-held electronic video tape
camera for news-gathering purposes.
C. Contentions of the Parties
IBEW contends that the 10(k) notice of hearing
should be quashed for two reasons. First, IBEW
asserts that no dispute exists between competing
groups of employees and that therefore Section
8(b)(4)(D) is inapplicable because the work in
dispute was performed by Phil Sturholm who it
alleges is a supervisor. Second, IBEW argues that, in
view of the fact that the Employer has bilateral
arbitration agreements with both Unions, the parties
have provided a means for the private settlement of
this dispute. Therefore, it contends that the Board
should, pursuant to its general policy favoring
arbitration of disputes, defer to IBEW's demand for
tripartite arbitration. Finally, IBEW takes the posi-
tion that, if the Board proceeds to determine the
merits of the dispute, consideration of the relevant
factors favors an award to the employees it repre-
sents.
3 The current cost of available units with auxiliary systems including a
van, microwave recording equipment , and video tape editing equipment is
approximately $150,000. Such additional equipment is necessary for live
broadcasting, should the Employer so utilize the camera.
4 The camera used on November 5, 1974, was manufactured by Akai.
Other models being considered by the Employer for purchase are the
The Employer and IATSE contend that a jurisdic-
tional dispute exists and that there is no agreed-upon
method for its resolution. As to the merits of the
dispute, they assert that the Employer's assignment
of the work to employees represented by IATSE is
consistent with their collective-bargaining agreement,
and is further supported by considerations of skills,
efficiency, and economy of operations.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for the
voluntary settlement of the dispute.
As stated above, IATSE Representative Gerald
Smith advised the Employer by telegram that if it
were to reassign the work to IBEW pursuant to
IBEW's claim then IATSE was prepared to take such
economic action as it deemed necessary, including
the establishment of picket lines. Based on the
foregoing and the record as a whole, we find that an
object of IATSE's action was to force the Employer
to continue to assign the disputed work to individu-
als represented by IATSE.
Relying on Local 236, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Maxon Construction
Company), 194 NLRB 594 (1971), IBEW contends
that no jurisdictional dispute exists because the work
in dispute was assigned to a supervisor. In that case,
the Board held that "no dispute exists within the
meaning of Section 10(k) of the Act" where "the
work sought by Respondent is being performed by a
supervisor and an independent contractor and not by
employees." (Emphasis supplied.) In contrast to that
situation, in the instant case, Phil Sturholm, who is
arguably a supervisor, was directed by the Employer
to operate the video tape camera for 1 day only,
election day, and has not operated such a camera at
any subsequent time. Sturholm's operation of the
camera on November 5, 1974, was on an experimen-
tal basis and not in the nature of a permanent
assignment .5 Rather, from the record it appears that
there is a "high probability" that the Employer will
acquire such a camera in the near future, and that the
Employer intends to assign such work to employees
in the news department. Thus, most significantly, the
Employer's counsel stated on the record that the
Ikegami and the Fernseh.
5 Norman Hefron , the Employer's news director, testified that the station
had two reasons for leasing the equipment - "One was to obtain fast
coverage of news events , election night , November 5 and the second was to
gain experience in the using of the equipment , looking ahead to the day
when we would own similar equipment.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
video tape camera "will be assigned to the
cameramen who are members of IATSE . . . so that
the Employer will not be dependent on a single
individual's skill to operate the camera." (Emphasis
supplied.) Therefore, under these circumstances,
even if we assume that Sturholm is a supervisor, we
find that Maxon Construction Company is distinguish-
able and that the facts of this case fall within the rule
that, where the employer has made a formal
assignment of the work, the fact that the work has
not commenced does not constitute a bar to a finding
of a jurisdictional dispute .6
Having found that an object of IATSE's action was
to force the Employer to continue to assign the
disputed work to individuals represented by IATSE
and that the existence of a jurisdictional dispute is
not barred by Sturholm's alleged supervisory status,
we are satisfied that there is reasonable cause to
believe that IATSE violated Section 8(b)(4)(D).
We find no merit in IBEW's contention that the
parties have provided a means for the voluntary
settlement of this dispute. In Local 1184, Southern
California District Council of Laborers (H. M. Robert-
son Pipeline Constructors), 192 NLRB 1078, 1079
(1971), the Board reiterated the well-established
principle that "[t]he voluntary adjustment must bind
all disputing unions as well as the Employer in order
to come within the meaning of voluntary settlement
as set out in Section 10(k)." In that case , as in the
instant case , each union's contract provided for
arbitration of disputes arising between the contract-
ing parties. The Board held there that that fact did
not "support the conclusion that all parties have
agreed to be bound by a single tripartite arbitration
proceeding, or to a means by which a final and
binding adjustment could be reached."
It is clear from the foregoing, and we find, that at
the time of the instant dispute there did not exist any
agreed-upon or approved method for the voluntary
adjustment of the dispute to which all parties to the
dispute were bound.? Accordingly, the matter is
properly before the Board for determination.
E. Merits of the Dispute
1. Certification and collective-bargaining
agreements
IBEW has not been certified as the collective-
bargaining representative for a unit of the Employ-
er's employees. IATSE was certified on April 13,
1970, as the collective-bargaining representative for
"all newsreel motion picture cameramen , excluding
s Local 2, International Union of Operating Engineers, AFL-CIO (PVO
International, Inc), 209 NLRB 673 (1974).
s For this same reason , we also find no merit in IBEW s claim that under
Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837
supervisors, clerical employees and guards as defined
in the Act." In view of the narrowness of the term
"newsreel" cameramen and the fact that portable
electronic video tape cameras have been available in
the industry only within the past 2 years, the 1970
certification is not helpful to a determination.
However, the recognition provision in the 1974
collective-bargaining agreement between IATSE and
the Employer refers to "News Motion Picture
Cameramen," whereas the recognition provision in
the 1972 contract contained language identical to
that of the 1970 certification; i.e., "Newsreel Motion
Picture Cameramen." Similarly, in the wage classifi-
cation article, the term "Newsreel Cameramen" in
the 1972 contract was changed to "News Camera-
men" in the 1974 contract. IATSE Representative
Gerald Smith testified that this change in terminolo-
gy was made by the parties in recognition of the
technological advances that were taking place in the
industry.
The recognition provision of the current contract
between IBEW and the Employer reads in pertinent
part as follows:
... all employees . . . who are engaged in the
... operation . . . of . . . electronic and/or
mechanical equipment . . . used for or involved
in the transmission or transference, production or
reproduction of video and/or audio intelligence
... excluding employees engaged primarily to
perform as . . . news cameramen . . . . [Emphasis
supplied.]
Although the work in dispute concerns the operation
of an electronic camera, the description of the work
in dispute set forth above (and in the notice of
hearing) relates to a function, i.e., news gathering, of
the Employer's outside news cameramen. In view of
the specific exclusion of news cameramen from the
recognition provision of the IBEW contract and the
recent modification in the IATSE contract which was
undertaken with electronic technical innovations in
mind, we find that the evidence relating to the
parties' collective-bargaining agreements favors the
Employer's assignment of the work to its employees
represented by IATSE.
2. Employer's assignment
The Employer's assignment of the disputed work to
employees represented by IATSE is a factor which
favors awarding the work to such employees.
(1971), this Board should defer to tripartite arbitration proceedings sought
by IBEW. United Steelworkers ofAmenca, AFL-CIO and its Local No. 4454
(Continental Can Company, Inc.), 202 NLRB 652,654 (1973).
INT'L PHOTOGRAPHERS LOCAL 659 863
3. Employer, area, and industry practice
Since the equipment involved in this dispute has
only been used on one occasion, there is no employer
practice as such.
In regard to area and industry practice, the record
reveals that news cameramen represented by IATSE
have operated portable video tape equipment at
station KPIX in San Francisco, while IBEW-repre-
sented employees have operated similar cameras
used for news gathering by the CBS network and by
several CBS-owned stations. Inasmuch as this equip-
ment has been available only for the past 2 years, we
find that the evidence relating to area and industry
practice is inconclusive.
4. Relative skills
IBEW contends that the employees it represents
possess superior ability to operate electronic camer-
as. However, the record shows that the operation of
the portable electronic video tape camera in issue is
not significantly different from that of the conven-
tional film news camera traditionally used by
IATSE-represented employees. In regard to the
factor of relative skills, the record supports IATSE's
contention that the determinative consideration is
not simply the ability to operate the electronic
camera (which both groups of employees possess),
but the ability to do so in a news-gathering context.
In this connection, the record reveals that news
camera work requires special skills which in this case
only these IATSE-represented employees possess.
After conferring with the reporter at the scene as to
how the story should be shot, a news cameraman
must make a number of independent judgments as to
lighting, picture quality, picture composition, and
screen direction. A news cameraman must also be
able to "edit in the camera," which means that
editorial judgment is used at the time the pictures are
shot so that the story can be put on the air promptly
without additional editing at the studio. Particularly
when covering fast breaking "spot news" stories for
which the Employer plans to use the video tape
camera, a news cameraman must be highly mobile so
that he can carry the equipment with him in order to
pursue a story agressively and "move with the
events." Finally, he must be able to continue
shooting a story on his own in the event he is
separated from the reporter. In short, because of this
ability to operate independently, a news cameraman
is called a "one man band."
In contrast, employees represented by IBEW do
not possess these journalistic skills and do not have
a In this connection , IBEW contends that only employees represented by
it possess the necessary FCC license to operate the camera for live
broadcasting via microwave . However, for the reasons stated infra, we
the experience of functioning independently. Rather,
they work largely in the studio under the supervision
of a director and assisted by a technical crew. While
they do occasionally leave the studio to cover special
events, such as boat races, they remain part of a large
production team which includes a director, camera
control personnel, mechanical crewmen, and produc-
ers, and only a minimal amount of such "remote"
coverage appears on a news program. We conclude,
therefore, that the factor of relative skills favors the
Employer's assignment.
5. Efficiency and economy of operations
The Employer stresses that factors of efficiency
and economy of operations support its assignment to
employees represented by IATSE. The Employer
presented testimony that, when the video tape
camera is acquired, it will be used selectively rather
than continuously throughout the day as film camera
equipment is presently utilized. Therefore, assigning
the video tape camera to an IATSE-represented
employee would result in greater efficiency, since the
IATSE cameraman could and would be expected to
operate film cameras or the video tape camera
interchangeably. Similarly, in the event the video
tape equipment failed to function (which apparently
is quite likely at this stage of development), the
IATSE cameraman would be able to use a film
camera as a backup system. Since the record does
not establish that it would be at least as economical
to utilize employees represented by IBEW,8 we find
that the factors of efficiency and economy of
operations favor the Employer's assignment.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees represented
by IATSE are entitled to perform the work in
dispute. We reach this conclusion upon the facts that
the assignment is consistent with the Employer's
preference and its current collective-bargaining
agreement with IATSE; it is not clearly inconsistent
with such limited evidence of area and industry
practice as is presently available; the employees
represented by IATSE possess the requisite skills and
greater editorial and journalistic ability needed to
perform the work; and such assignment will result in
greater efficiency and economy of operations. Ac-
cordingly, we shall determine the dispute before us
by awarding the work in dispute to the Employer's
specifically limit the scope of the award to exclude transmission by
microwave and therefore IBEW's assertion is not relevant to our
determination.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees represented by IATSE , but not to that
Union or its members.
Scope of the Award
All parties agree that the Board should enter a
broad award which covers future disputes and is not
limited to any particular model of the video tape
camera. As it appears from the record that there is a
considerable likelihood that similar disputes may
occur in the future, we hold that the determination in
this case applies to all work disputes arising between
the parties to this proceeding involving the use and
operation of a portable, hand-held electronic video
tape camera, including, but not limited to, equipment
manufactured by Akai, Ikegami, and Fernseh, when
such equipment is utilized by King Broadcasting
Company, Seattle, Washington, for video tape
coverage of news events.9
IBEW asserts that the Employer intends to use the
camera for live broadcasting via microwave trans-
mission in addition to video taping and that therefore
the award should encompass both anticipated uses.
The Employer contends that the usage of this
equipment involving microwave transmission is not
before the Board.
We find merit in the Employer's position. The
incident which gave rise to the instant dispute
involved the use of a portable electronic camera by a
news cameraman covering a news event by recording
onto a video tape recorder with the aid of a battery
pack. This is the framework within which this case
was litigated and presented to us for decision. Live
broadcasting via microwave transmission requires
the utilization of equipment additional to that
employed on November 5, 1974. See footnote 3,
supra. Therefore, we deem it inappropriate to
speculate on the basis of this record as to what the
Employer's intent may be regarding the other
possible uses of the portable electronic camera when
combined with additional equipment, since that
equipment, if or when acquired, may not be utilized
in a news-gathering context. Accordingly, we hold
that the determination in this case is restricted to the
video tape use of the portable electronic camera for
news-gathering purposes only.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of King Broadcasting Company, Seat-
tle, Washington, who are currently represented by
International Photographers Local 659, affiliated
with International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators
of the United States & Canada, AFL-CIO, are
entitled to perform the work of using and operating a
portable, hand-held electronic video tape camera,
including, but not limited to, equipment manufac-
tured by Akai, Ikegami, and Fernseh, when such
equipment is utilized to cover news events by
recording on video tape.
9 Local 167, International Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO (Rebel Erectors, Inc.), 171 NLRB 520, 522
(1968).