Metromedia, Inc.-KMBC-TV,

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 392 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metromedia, Inc.-KMBC-TV and International
Photographers of the Motion Picture Industry,
Local 666, IATSE (AFL-CIO). Case 17-CA-6831
January 17, 1980
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 21, 1979, Administrative Law Judge
James L. Rose issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed a brief in support of the
Administrative Law Judge's Supplemental Decision.
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 considered the record and the
attached Supplemental Decision in light of the excep-
tions 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, and on basis of the
Administrative Law Judge's Supplemental Decision
and the entire record in this case, the National Labor
Relations Board hereby reaffirms its Decision and
Order previously issued on September 28, 1977, as
modified below, and hereby orders that the Respon-
dent, Metromedia, Inc.-KMBC-TV, Kansas City,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Board's original
Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Refusing to bargain collectively over the
operation of minicams with International Photogra-
phers of the Motion Picture Industry, Local 666,
IATSE (AFL-CIO), herein called IATSE, as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
"All full-time and regular part-time news depart-
ment motion picture cameramen (electronic or
film) of Metromedia, Inc., at its KMBC-TV
station located in Kansas City, Missouri, but
excluding guards and supervisors, as defined in
the Act, and all other employees."
2. Substitute the attached notice for that of the
Board.
247 NLRB No. 57
IT IS FURTHER ORDERED that the unit represented
by the International Photographers of the Motion
Picture Industry, Local 666, IATSE (AFL-CIO), be
clarified as follows:
All full-time and regular part-time news depart-
ment motion picture cameramen (electronic or
film) of Metromedia, Inc., as its KMBC-TV
station located in Kansas City, Missouri, but
excluding guards and supervisors, as defined in
the Act, and all other employees.
The Board's original Decision and Order in this proceeding is reported at
232 NLRB 486 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain over the
operation of "minicams" with IATSE as the
certified collective-bargaining representative of
employees in the following unit:
All full-time and regular part-time news de-
partment motion picture cameramen (electron-
ic or film) of Metromedia, Inc., at its KMBC-
TV station located in Kansas City, Missouri,
but excluding guards and supervisors, as de-
fined in the Act, and all other employees.
WE WILL NOT assign newly created jobs to
employees represented by the IBEW, an action
which will alter the terms and conditions of
employment of IATSE unit members, without
prior notification to IATSE and affording IATSE
an opportunity to bargain with respect to such
jobs.
WE WILL NOT take any action to implement
our unilateral decision that employees in the
IATSE unit would be required to become mem-
ber of the IBEW in order to operate the "mini-
cams."
WE WILL NOT recognize that portion of the
contract with Local 1259, International Brother-
hood of Electrical Workers, assigning exclusive
jurisdiction over the "minicams" to employees
represented by IBEW.
WE WILL NOT make any unilateral changes in
the terms and conditions of employment of
employees in the bargaining unit represented by
IATSE without first notifying and, upon request,
bargaining in good faith with that labor organiza-
tion about such changes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
392
METROMEDIA, INC.
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
WE WILL, upon request, bargain with IATSE
about "minicam" work.
WE WILL rescind that portion of the contract
granting "minicam" work exclusively to the
IBEW.
WE WILL rescind our decision assigning opera-
tion of the "minicams" to employees in the unit
represented by the IBEW and the requirement
that employees in the above-described unit repre-
sented by IATSE become members of the unit
represented by the IBEW in order to operate such
cameras.
METROMEDIA, INC.-KMBC-TV
SUPPLEMENTAL DECISION
JAMES L. ROSE, Administrative Law Judge: This matter
is before me upon the Board's Order of remand dated May
10, 1979, pursuant to which a supplemental hearing was
held in Kansas City, Kansas, on July 16 and 17, 1979.
On September 28, 1977, the Board issued its Decision and
Order in this matter,' finding that Metromedia, Inc.-
KMBC-TV (Respondent), violated Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended, 29 U.S.C.
§ 151, et seq., in certain respects with regard to its bargaining
duty to International Photographers of the Motion Picture
Industry, Local 666, IATSE, AFL-CIO, herein IASTE, in
connection with assignment of operating portable TV
cameras (minicams) to employees in the unit represented by
Local Union 1259, International Brotherhood of Electrical
Workers, AFL-CIO, herein IBEW.
In its Decision the Board specifically declined the remedy
requested by IASTE that Respondent be ordered to assign
minicam work to employees in the IASTE unit.
The Eighth Circuit enforced the Board's Order2 but
remanded the proceeding to the Board for purposes of
determining whether the existing bargaining units remain
appropriate in view of Respondent's introduction of mini-
cams to its operation. Specifically, the court stated:
Resolution of this dispute requires, then, that the Board
determine whether station employees who operate
minicams for news-gathering purposes are appropriate-
ly included in the bargaining unit defined by "news
department motion picture cameramen," or in some
other existing unit. Alternatively, the Board may
conclude that the minicams so changed the operations
of the station that the prior bargaining units are no
longer appropriate and that new bargaining units must
be defined.
The Board in turn remanded the proceeding to me in
order to receive evidence concerning whether the existing
bargaining units represented by IASTE and IBEW, respec-
tively, remain appropriate.
1. CONTENTIONS OF THE PARTIES
In essence, the parties at this stage of proceeding take the
following positions:
A. The General Counsel
The General Counsel, while participating in the supple-
mental proceeding, calling, examining, and cross-examining
witnesses, declined to take a "adversarial" position with
regard to the issues on remand.
B. The Charging Party
IASTE contends essentially that the bargaining unit for
which it is certified should be clarified to include employees
who use the minicams when such use is for news gathering
purposes.
C. Respondent
Respondent contends that the operation of minicams is
appropriately assigned to employees in the unit of engineers
represented by IBEW. In the alternative, Respondent
suggests that, if such were to leave a residual unit of news
cameramen who continue to operate film cameras, those
employees should be included in the IBEW unit and to that
extent the IBEW unit so clarified.
D. The Party in Interest
IBEW contends that employees who operate minicams,
for whatever purpose, should be in the unit represented by
it-that employees in the unit it represents are entitled to
exclusive jurisdiction of operation of the minicams. IBEW
does not, apparently, join Respondent's assertion that
employees who continue to operate film cameras should be
included in its unit.
II. ANALYSIS AND CONCI.UDING FINDINGS
The facts set forth in the decisions of the Board and
circuit court were not, and are not now, in serious dispute,
nor have they been significantly altered in the 3 years since
this matter first came on for hearing. At the time of the first
hearing, Respondent was contemplating the acquisition and
use of minicams but had not yet put them in operation.
Indeed, at that time Respondent had only a portion of a
minicam for use in training. Since then, Respondent has
acquired and now uses four minicams and intends to get
another.
Initially, it was Respondent's intention to use the mini-
cams solely for news gathering purposes. However, the
capability of this equipment is such that it can be used for
commercial production on location, taping of promotional
and entertainment events, as well as remote broadcasting
sports and news. While the minicams are mostly used for
gathering news on videotape, location production on video-
tape and live broadcasting are occasional uses.
: 586 F.2d 1182, 1191(1978).
393
'232 NLRB 486.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the first hearing Respondent employed five
news cameramen, whose principal function was to capture
and edit the video portion of news using a CP 16 film movie
camera.
Now Respondent has three employees who do this work
using film cameras and three who principally perform the
same function using minicams. Two of these individuals had
worked for Respondent as news cameramen and when given
the opportunity accepted assignment as minicam operators.
The third is a relatively new employee who had previously
been employed by another television station as an engineer
and who does have an FCC first class engineer license, but
this is not required.
Giving rise to the unfair labor practice found by the Board
was Respondent's agreement during negotiations in 1978
with IBEW to give exclusive jurisdiction to operating
minicams to employees in the IBEW unit. As a consequence
of this, which one may reasonably infer from the evidence of
record and which the Board found, Respondent and IBEW
then agreed to the creation of a new classification of
employees to do this work-the news engineers. Among
other things, it was necessary to create this new category
distinguished from engineers generally so that Respondent
could have flexibility in assigning overtime. That is, the
regular engineers can decline overtime, a situation not
conductive to competitive news gathering. There are some
additional differences in working conditions between the
news engineers and the regular engineers and in require-
ments for employment, e.g., regular engineers must have an
FCC first class license, news engineers need not.'
The overwhelming and essentially agreed-to evidence is
that the job functions performed by the news engineers and
those performed by the news cameramen are substantially
the same. As testified to by Ed Willming, his job as a news
engineer "Basically, is shooting and editing news." He put
this at 90 to 95 percent of his time. This is the same work he
did as a film cameraman.
Both the news engineers and the news cameramen are
assigned automobiles (with the exception of Thomas Shalz,
the new news engineer who is generally assigned to the
microwave relay van which he uses principally as a news
cruiser but which can be, and is, used for remote broad-
casts). They are allowed to take the cars home in the evening
(except Shalz) and sometimes receive assignments to cover a
particular news story after hours.
While Respondent appears to have set up organizational
responsibility whereby the news engineers are responsible to
the chief engineer, it is clear that by and large the news
engineers, as the news cameramen, are supervised by the
news director. And they receive their daily assignments from
the assignment editor. While the chief engineer may have
some responsibility for the news engineers and their over-
time budget, it is clear from the record that a substantial
majority of the supervision of the news engineers is the same
as that of the news cameramen. In fact, the news engineers
' It should be noted that the act of creating the classification of news
engineer and negotiating such into the collective-bargaining agreement with
IBEW was found by the Board to be a violation of Sec. 8(a)(), and
Respondent was ordered to cease giving effect to that portion of the collective-
bargaining agreement.
' Stage Employees Local One. IATSE. AFL-CIO, e al., (RKO General
work out of the news department rather than the engineering
department.
The news department is on the second floor of the
building occupied by Respondent, whereas the engineering
department is on the first floor. Thus, even when the news
engineers are physically on Respondent's premises they have
little, if any, contact with the other engineers.
There are some fundamental differences between the
minicam and CP 16 film camera. First, the film camera is
much lighter than the minicam and thus is more appropri-
ately used when mobility is essential. Since the film camera
puts the images on film, the editing of this is done manually
by cutting and splicing the film. The editing of videotape
taken by a minicam is electronic. However, aside from this
technological difference the operation of the two cameras is
essentially the same. As testified to by Respondent's station
manager, the principal job qualification for both operation of
both the minicam and the news camera when gathering news
is photojournalism, and editing judgment is the same.
Further, operation of the minicam and the editing device
requires little training. The mechanical skill involved in
operating the two cameras is similar, and neither requires
much training, special schooling, or a license. Indeed,
Willming testified that without any electronic training he
learned to operate the minicam in about a week.
While there are some mechanical differences between the
cameras, the job functions performed by the individuals
operating them are essentially identical. And it is this
work-the video gathering of news--which is crucial to this
case and not the per se operation of the minicam. The advent
of the minicam really has not changed the job functions of
employees who are responsible for the video portion of news.
It is true that with the minicams Respondent now has the
technological capability for remote broadcasts. However,
even when this capability is exercised more people than the
operator of the minicam are needed. There must also be
someone who sits in the microwave relay van which sends
the signal from the minicam to the station.
In the jurisdictional dispute context the Board has had
occasion to consider the assignment of operating minicams.
In every case the critical element noted by the Board was the
job function of photojournalism. Thus, in the one case where
the Board affirmed assignment of the minicam operation to
the engineers unit it was noted that the engineers equally as
well as the cameramen had substantial experience in news
gathering.' Here there was no showing that any of the
regular engineers had ever had any experience in photojour-
nalism. The two news engineers with such experience had
been news cameramen.
In a recent decision involving the assignment of minicam
work the Board said, "However, we do not consider the
dispute here to be the actual technical operation of the
camera. Rather, in our opinion, the dispute herein concerns
the function of newsgathering and not the operation of a
particular type of equipment."'
WOR-TV Division), 219 NLRB 165 (1975). Accord: Photo-News Guild, 227
NLRB 1796 (1977), wherein the employer's assignment to the news
cameramen was affirmed, the Board noting that the news gathering function
had been performed exclusively by news cameramen for 20 years.
' International Photographers of the Motion Picture Industries. Local 666.
and Motion Picture Laboratory Technicians. Local 780. affiliated with
394
METROMEDIA. INC.
Here the function of news gathering has been exclusively
performed by the news cameramen and never by any
engineer until advent of the news engineer classification, and
no very good reason has been advanced why news camera-
men should not continue to perform this work exclusively.
Respondent argues that to allow news cameramen to use
the minicams in news gathering but members of some other
unit to use them otherwise would "split the baby" and cause
substantial economic inconvenience. But Respondent does
not explain how or why, nor is the alleged inconvenience
self-apparent. Respondent seems to have enough minicams
to do both news gathering and location shooting at the same
time. Perhaps it would sometimes be more efficient to have
an employee who is basically a news gatherer to do the
location shooting. If so, this is the sort of thing which could
easily be worked out in negotiations with both IBEW and
IATSE. In any event, on the record here Respondent's
requirement to have minicam operators do nonnews gather-
ing is moderate to minimal and should not be considered
decisive vis-a-vis the news gathering function performed by
them.
Finally, it is clear that skill and training involved in news
gathering and editing is substantially greater than that
required to learn to operate a minicam. Thus, photojournal-
ism skill must be considered more determinative than
whatever mechanical skill is involved in operating a mini-
cam.
Accordingly I conclude that the nature of Respondent's
operation has not significantly changed subsequent to the
arrival of the minicams, and that employees continue to
perform the function of video news gathering using both the
minicams and the CP 16 film cameras. The employees who
are involved in video news gathering share a substantial
community of interest, and their job functions are not
International Alliance of Thearnical Stage Employees (Postr-Newsweek Srations,
Florida Inc.. WPLG-TVI. 227 NLRB 810, 814 (1977). Accord: International
Alliance of Theatrical Stage Employees and Moving Picture Machine Operators
of the United States and Canada (Metromedia. Inc.). 225 NLRB 785 ( 1976).
1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
distinguished simply because they may use different tools to
accomplish that job. I therefore believe that the unit of these
employees, having been found to be appropriate in this
industry, should be clarified as follows:
All full-time and regular part-time news department
motion picture cameramen (electronic or film) of
Metromedia, Inc., at its KMBC-TV station located in
Kansas City, Missouri, but excluding guards, and
supervisors, as defined in the Act, and all other
employees.
To the extent that Respondent will have occasion to use
the minicams for purposes other than news gathering, the
operation of the minicam can be performed by whomever
Respondent chooses, consistent, of course, with any collec-
tive-bargaining agreements. Such work would be covered
under the IBEW contract and would appropriately be
performed by members of the IBEW unit.
Based upon the foregoing findings of fact and conclusions
of law, and pursuant to the Order of remand of the Board, I
hereby issue the following recommended:
ORDER'
That the Board's Order dated September 28, 1977, be
amended in paragraph I(a) and in the first paragraph of the
notice to read:
All full-time and regular part-time news department
motion picture cameramen (electronic or film) of
Metromedia, Inc., at its KMBC-TV station located in
Kansas City, Missouri, but excluding guards, and
supervisors, as defined in the Act, and all other
employees.
and Regulations of the National abor 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.
395