Local 127, IATSE

National Labor Relations Board - Board Decisions

Jul 30, 1981

257 N.L.R.B. 409 (N.L.R.B. 1981)

LOCAL 127, IATSE
Local 127, International Alliance of Theatrical Stage
Employees and Moving Picture Operators of
the U.S. & Canada, AFL-CIO-CLC and F.P.S.
& Associates, Inc., d/b/a F.P.S., Inc. and Time
Life Productions, Inc. and International Alli-
ance of Theatrical Stage Employees and Moving
Picture Operators of the U.S. & Canada, AFL-
CIO-CLC
International Alliance of Theatrical Stage Employees
and Moving Picture Operators of the U.S. &
Canada, AFL-CIO-CLC and F.P.S. & Asso-
ciates, Inc., d/b/a F.P.S., Inc. and Time Life
Productions, Inc. and Local 127, International
Alliance of Theatrical Stage Employees and
Moving Picture Operators of the U.S. &
Canada, AFL-CIO-CLC. Cases 16-CD-131
and 16-CD-132
July 30, 1981
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed in Case 16-CD-131 by F.P.S. &
Associates, d/b/a F.P.S., Inc. (F.P.S.), alleging that
Local 127, International Alliance of Theatrical
Stage Employees and Moving Picture Operators of
the U.S. & Canada, AFL-CIO-CLC (Local 127),
violated Section 8(b)(4)(D) of the Act by engaging
in certain proscribed activity with an object of
forcing or requiring F.P.S. to assign certain work
to employees represented by Local 127 rather than
to employees represented by Locals 80, 44, 695,
705, 528, 767, and other unspecified locals of Inter-
national Alliance of Theatrical Stage Employees
and Moving Picture Operators of the U.S. &
Canada, AFL-CIO-CLC (IATSE), and following
a charge filed in Case 16-CD-132 by F.P.S., alleg-
ing that IATSE violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring Time Life Pro-
ductions, Inc. (Time Life), to assign certain work
to employees represented by IATSE locals other
than Local 127 rather than to employees represent-
ed by Local 127.
The cases were consolidated for hearing and a
hearing was held before Hearing Officer Ruth
Small on July 15 and August 11, 12, and 13, 1980,
at Fort Worth, Texas. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on issues. Thereafter,
F.P.S., Local 127, and IATSE filed briefs.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated, and we find, that F.P.S. is
a Texas corporation having its principal place of
business in Dallas, Texas, where it provides prepro-
duction and production services to producers en-
gaged in motion picture and television work.
During the 12 months preceding the hearing, a rep-
resentative period, F.P.S. performed services
valued in excess of $50,000 for customers located
outside the State of Texas and/or purchased or re-
ceived goods valued in excess of $50,000 from
sources located outside the State of Texas.
The parties stipulated, and we find, that Time
Life has an office in Los Angeles, California,
where it is engaged in the production of motion
pictures and television programs. During the 12
months preceding the hearing, a representative
period, it performed services valued in excess of
$50,000 for customers located outside the State of
California and/or purchased or received goods
valued in excess $50,000 from sources located out-
side the State of California. Accordingly, we find
that F.P.S. and Time Life are engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
127 and IATSE are labor organizations within the
meaning of Section 2(5) of the Act.
II111. THE DISPUTE
A. Background and Facts of the Dispute
In early 1980, Time Life hired Robert Papazian
to produce a movie for television entitled "Crisis at
Little Rock" ("Crisis"). After considering various
locations, as well as the possibility of using a pro-
duction crew composed entirely of local employ-
ees, Papazian decided to schedule 18 days of film-
ing in Dallas, Texas, and 10 days in Little Rock,
Arkansas, using a mixed crew of Los Angeles-
based employees represented by IATSE and local
employees. He also scheduled preproduction work,
consisting, inter alia, of the preparation of costumes
and sets for the actual filming, in Los Angeles and
Dallas.
Time Life had not previously filmed in Dallas.
Accordingly, a location scout contacted Joe Pope,
F.P.S.'s executive vice president, and asked if
F.P.S. would be interested in providing electrical
and grip equipment for the shooting and in provid-
257 NLRB No. 41
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the local technical and production employees.
Subsequently, Pope met with Time Life's unit pro-
duction manager, Billy Ray Smith, and reached an
agreement to provide equipment and labor for the
production. They agreed that F.P.S. would be paid
a flat rate for equipment rental and that it would be
paid for providing labor and handling the payroll
for these employees on a cost-plus basis, i.e., the
cost of each employee's salary and benefits plus a
specified percentage. They also executed a memo-
randum summarizing the procedure by which
F.P.S. would provide its payroll services and ac-
knowledging that F.P.S. would be given screen
credit.
Time Life and F.P.S apparently did not enter
into any written agreement delineating precisely
the job classifications and filming locations for
which F.P.S would provide employees and for
how long these employees would work. Papazian
testified that he at all times intended to replace the
Dallas employees with Little Rock employees fol-
lowing the Dallas phase of filming and that he so
told Smith. He also testified that when he called
Josef Bernay, an international representative of
IATSE, to arrange clearances for him to go into
Dallas and Little Rock with a mixed crew of Los
Angeles and local employees, he told Bernay he
wanted to hire 10 employees in Dallas and replace
them with 10 new employees when the production
moved to Little Rock. Bernay corroborated Papa-
zian's testimony. Bernay further testified that he
then called Bill Bradford, business representative of
Local 127 in Dallas, and told him Time Life in-
tended to hire 10 people in Dallas, then "drop"
them and hire 10 people in Little Rock, that he
called Papazian back to tell him that the hiring of
10 people in each area had been cleared, and that
he subsequently confirmed the arrangement with
Smith. However, Smith testified that he intended
to hire 10-12 employees in Dallas to work along-
side various Los Angeles employees for the Dallas
segment of production, then take these employees
along with the Los Angeles employees to Little
Rock, where an additional 10 employees would be
hired. Furthermore, Pope testified that Smith told
him this was Time Life's intent. Finally, Bradford
testified that, although it was unclear initially
whether the Dallas employees were hired for the
run of the production or only for the Dallas seg-
ment, he subsequently was assured by both Papa-
zian and Smith during production that the Dallas
employees would be taken to Little Rock. Thus it
appears that the various individuals involved had
different understandings as to the locations for
which the Dallas employees were to be hired.
F.P.S. has collective-bargaining agreements with
both Local 127 and IATSE. Accordingly, follow-
ing the above conversations Pope interviewed var-
ious members of Local 127 for work on "Crisis"
and negotiated "deals" with those he selected. He
then executed "start cards" and "deal memos,"'
copies of which were forwarded to Smith for ap-
proval. Neither the start cards nor the deal memos
indicated whether those hired would work in Little
Rock in addition to Dallas, or how long they could
expect to work.
Preproduction work in Dallas began sometime in
early May 1980. Actual production began May 27
with a mixed crew of Los Angeles and Dallas em-
ployees working as an integrated unit under the
same supervision. Dallas production work contin-
ued 18 days. Although F.P.S. exercised no day-to-
day control over the Dallas employees, it did proc-
ess their payroll.
According to Smith, on June 5, he received a
call from Bernay in reference to a possible contract
violation in the use of Dallas employees as grips.
During this conversation Bernay asked him what
he was going to do with the Dallas employees in
regard to Little Rock, and Smith told him they
were to be taken to Little Rock. According to
Smith, Bernay then told him that if that occurred
there would be grievances and he would pull the
Los Angeles crew back to Los Angeles. Smith
then contacted Papazian, who called Bernay and
settled the problem regarding grips. Smith did not
testify whether the issue of taking Dallas employ-
ees to Little Rock arose in the latter conversation.
According to Bernay, however, during his con-
versation with Smith the question of taking Dallas
employees to Little Rock was not mentioned.
During his conversation with Papazian, however,
Papazian asked if he could take the Dallas employ-
ees to Little Rock if he could not find a sufficient
number of qualified employees in Little Rock.
Bernay told him he could not do so, and Papazian
then affirmed he would live up to the commitment
he had with Bernay. Papazian testified that Bernay
told him Smith was planning on taking the Dallas
employees to Little Rock, at which point he put
Smith on the phone and had Bernay explain to him
that Time Life could not do that. Papazian further
testified that there was no threat to pull the crew
over this issue.
Following these conversations, Smith contacted
Pope and Bradford and told them that because of
' The start cards and the deal memos stated the employee's name, the
position for which he was hired, the starting date. and his rate of pay.
The start cards rwere agreements between the individual employees and
F. 'S. on behalf of Time Life. The deal memos were memoranda be-
t\ een t:.S. and Time Life.
410
LOCAL 127, IATSE
pressure from Los Angeles he would not be able to
take the Dallas employees to Little Rock. It is un-
disputed that on June 10, Bradford notified Pope
that if the Dallas employees were not allowed to
go to Little Rock, Local 127 would picket the set
in Dallas at noon, June 12. Pope notified Smith of
this threat, and later told Papazian that there was a
real possibility of a strike. The next day F.P.S. filed
the charges in this proceeding. On June 12, Pope
went to the set to attempt to avert the strike, but it
was not until the Dallas employees were notified
by the Board that a notice of hearing would be
issued that they agreed to continue working. On
June 13, Time Life completed the Dallas phase of
production. On June 15, it began production in
Little Rock, replacing the Dallas employees pri-
marily with Little Rock employees, but also utiliz-
ing Los Angeles employees in certain classifica-
tions.
B. The Work in Dispute
The work in dispute involves film production
work for the movie "Crisis" performed by employ-
ees of Time Life at Little Rock, Arkansas, which
was performed by employees represented by
IATSE and was claimed by employees represented
by Local 127.
C. Contentions of the Parties
IATSE contends that the dispute is not properly
before the Board and that the notice of hearing
should be quashed. It contends that there is no rea-
sonable cause to believe that it has violated Section
8(b)(4)(D), arguing that it never threatened to
strike or picket Time Life in support of its claim to
the disputed work. It further contends that an
agreed-upon method for the voluntary adjustment
of the dispute exists to which the parties are bound.
In this regard, it argues that Time Life, not F.P.S.,
is the employer of the Dallas employees, that Time
Life agreed in a telegram to IATSE on June 17,
1980, to be bound by the results of the internal dis-
pute resolution procedure of IATSE, which is also
binding on Local 127 and IATSE, and therefore
that all the parties in a position to make an effec-
tive assignment of the work in dispute have agreed
to be bound by the results of the IATSE internal
procedure. In the event the Board should find the
dispute is properly before it, IATSE contends that
the disputed work should be assigned to employees
represented by it based on its collective-bargaining
agreement with Time Life, industry practice, and
economy and efficiency of operations.
F.P.S. and Local 127 contend that the dispute is
properly before the Board. They contend that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, arguing that IATSE
threatened to pull the Los Angeles employees back
to Los Angeles if the Dallas employees went to
Little Rock and that Local 127 threatened to
picket the set in Dallas if the Dallas employees
were not allowed to go to Little Rock. They fur-
ther contend that no agreed-upon method for the
voluntary adjustment of the dispute exists to which
the parties are bound. In this regard, they argue
that F.P.S. is the employer of the Dallas employees
represented by Local 127 and that F.P.S. has not
agreed in its collective-bargaining agreements with
Local 127 and IATSE, or otherwise, to be bound
by the internal dispute resolution procedure of
IATSE. They further contend that the Board
should award the work in dispute to the Dallas em-
ployees represented by Local 127 based on F.P.S.'s
collective-bargaining agreements with IATSE and
Local 127, relative skills, economy and efficiency
of operations, area and past practices, job impact,
and F.P.S.'s preference.
At the hearing, Time Life took no position as to
whether the dispute is properly before the Board,
as to whether it or F.P.S. was the employer of the
Dallas employees, or as to which employees the
disputed work should be assigned. However, in a
telegram to IATSE on June 17, Time Life stated it
did not desire to assign the work to employees rep-
resented by Local 127, but that it would respect
any decision by IATSE assigning the work to
either group of employees. 2
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) has been
violated, and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
As noted above, it is undisputed that on June 10,
1980, Local 127, through Business Agent Bradford,
notified Pope that it would picket the set in Dallas
if the Dallas employees were not taken to Little
Rock. Pope relayed this threat to Smith at Time
Life, and subsequently told Papazian that there was
a real possibility of a strike. Local 127 did not
agree to continue working until assured that the
Board was issuing the notice of hearing in this pro-
2 Pursuant to IATSE's internal dispute resolution procedure, a meeting
to review and resolve the dispute as held on Jiul 8. 1980. Although
F.P.S. and Local 127 chose not to appear, representatives of Time Life.
IATSE. and individual West Coast Studio locals did attend and partici-
pate. The next da, the president of IATSF issued a ruling that Local 127
did not has.e jurisdiction over the wNrk to he perfirmed il Little Rock
The hearing n this proceeding hbeganl suhsequenil It the issuance of his
ruling.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding. In these circumstances, we find reasonable
cause exists to believe that Section 8(b)(4)(D) has
been violated by Local 127.3
With respect to whether there exists an agreed-
upon method for the voluntary adjustment of the
dispute to which all parties are bound, we note that
IATSE and Local 127 are bound by IATSE's in-
ternal dispute resolution procedure, and Time Life
in its June 17 telegram to IATSE agreed to be
bound by its results. However, F.P.S. has not
agreed in its collective-bargaining agreements with
Local 127 and IATSE, or otherwise, to be so
bound. As noted above, IATSE argues that Time
Life, not F.P.S., is the employer of the Dallas em-
ployees and therefore that all parties in a position
to make an effective assignment of the work in dis-
pute have agreed to be bound by the results of the
IATSE internal procedure. On the other hand,
F.P.S. and Local 127 argue that F.P.S. is the em-
ployer of the Dallas employees represented by
Local 127 and therefore that no agreed-upon
method for the voluntary adjustment of the dispute
exists to which all parties are bound. We find it un-
necessary to resolve these conflicting contentions
and to determine whether IATSE's internal dispute
resolution procedure constitutes an agreed-upon
method for the voluntary adjustment of the dispute
to which all parties are bound, since we are quash-
ing the notice of hearing for the reasons set forth
below.
We conclude, based on the unusual circum-
stances involved, that the dispute is moot. As noted
above, the work in dispute has been completed.
The Board frequently has held that the completion
of the work involved does not render a jurisdic-
tional dispute moot, where there is evidence of
similar disputes between the parties in the past and
nothing to indicate that such disputes will not
occur in the future.4 However, in the present case
there is no evidence of a similar dispute having oc-
curred between the parties in the past, and we find
that it is unlikely that such a dispute will arise in
the future.
Thus, we note that there is no evidence that sim-
ilar disputes have arisen previously between F.P.S.
3 It is not clear that Bernay's alleged June 5, 1980, threat to pull the
Los Angeles crew was in reference to the problem regarding the grips,
which was later settled, or the possibility that the Dallas employees
might be taken to Little Rock. Since we find reasonable cause to believe
that Local 127 violated Sec. 8(b)(4)(D), and in view of our quashing of
the notice of hearing herein on other grounds, we find it unnecessary to
reach the question of whether there is reasonable cause to believe that
IATSE violated Sec. 8(b)(4)(D).
' See, e.g., Sheet Metal Workers International Association (AFL-CIO),
Local No. 541 (Kingery Construction Company), 172 NLRB 1046. 1049
(1968), and cases cited therein at fn. 9.
or Local 127 and Los Angeles-based producers
filming in Dallas and another location with a mixed
crew of Los Angeles and local employees. Further-
more, prior to the production of "Crisis," Time
Life had not filmed in Dallas, utilized the services
of F.P.S., or employed employees represented by
Local 127. Additionally, there is no evidence that
Time Life has any plans to engage in these activi-
ties in the future. Rather, it is clear that Time Life
contracted with F.P.S. for the provision of equip-
ment and personnel for the production of "Crisis"
only, and did not establish a continuing relationship
with either F.P.S. or Local 127.
Furthermore, it is apparant that the instant dis-
pute arose because of the failure of F.P.S. and
Time Life to enter into a written agreement delin-
eating precisely for which job classifications and
filming locations F.P.S. would provide employees
and for how long these employees would work.
Thus, it is clear that Local 127's claim for work
and its threat to picket was based on its belief that
Time Life had agreed to use Dallas employees rep-
resented by Local 127 in Little Rock for the film-
ing of "Crisis" when it contracted with F.P.S. for
the provision of equipment and personnel. Howev-
er, as noted above, the various individuals in-
volved, including Time Life's own representatives,
Papazian and Smith, had different understandings
as to the locations for which the Dallas employees
were to be hired. These differences could, and
probably would, have been avoided had F.P.S. and
Time Life specifically addressed the matter in their
written agreement. There is no reason to believe
that similar misunderstandings would occur in the
event Time Life in the future should utilize the
services of F.P.S. for a production in which it films
in Dallas and another location with a mixed crew
of Los Angeles and local employees. Finally, it is
clear that Local 127 made no claim for, nor threats
concerning, any future work on any Time Life pro-
duction. Therefore, we find that it is unlikely that
similar disputes between the parties will recur in
the future.
Based on all the foregoing, and emphasizing the
particular and unusual facts of this case, we con-
clude that the dispute herein is moot. Accordingly,
we shall quash the notice of hearing in this pro-
ceeding.
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is,
quashed.
412