Nabet, AFL-CIO, CLC

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 75 (N.L.R.B. 1977)

NABET, AFL-CIO, CLC
National Association of Broadcast Employees and
Technicians, AFL-CIO, CLC (NABET) and
Metromedia, Inc. and International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada (IATSE). Case 31-CD-173
June 10, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge duly filed on September 8, 1976,
and amended on September 10, 1976, by Metrome-
dia, Inc., hereinafter called Metromedia or the
Employer, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 31, issued a complaint and notice of hearing
on September 23, 1976, against National Association
of Broadcast Employees and Technicians, AFL-
CIO, CLC, hereinafter called NABET or Respon-
dent. The complaint alleges that Respondent had
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(4)(ii)(D) of the
National Labor Relations Act, as amended. In
substance, Respondent is alleged to have violated the
Act by threatening a strike and refusal to handle and
process videotape produced by Metromedia's minia-
ture electronic videotape camera (herein called the
minicam) when such camera and related equipment
are operated by employees represented by Interna-
tional Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States and Canada, hereinafter called IATSE. The
complaint alleges that Respondent has failed and
refused to honor or abide by the Board's Decision
and Determination of Dispute,l in which the Board
awarded the work of newsgathering by use of the
minicam to Metromedia's employees represented by
IATSE. The complaint further alleges that an object
of Respondent's conduct has been, and is, to force or
require Metromedia to assign the operation of the
minicam to employees who are members of, or
represented by, Respondent, rather than to Met-
romedia's employees who are members of, or
represented by, IATSE. On September 29, 1976,
Respondent filed an answer denying the commission
of any unfair labor practices.
On January 13 and 14, 1977, Metromedia, Respon-
dent, IATSE, and the General Counsel entered into a
motion to transfer proceedings to the Board and
stipulation of facts. The parties agreed to waive a
I International Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada (Metromedia, Inc.), 225
230 NLRB No. 7
hearing before an Administrative Law Judge and the
issuance of an Administrative Law Judge's decision,
agreeing to submit this proceeding directly to the
Board for findings of fact, conclusions of law, and
order. The parties stipulated that the entire record
before the Board in this matter, in addition to their
formal stipulation and the exhibits thereto, should
consist of the following: (a) the charge and amended
charge; (b) the complaint and notice of hearing; (c)
answer to the complaint; (d) the official transcript
and exhibits of the 10(k) proceeding in Case 31-CD-
161; and (e) the Board's Decision and Determination
of Dispute in Case 31-CD-161.
On March 2, 1977, the Board approved the
stipulation of the parties and ordered the proceeding
transferred to the Board, granting permission for the
filing of briefs. Thereafter, all the parties filed briefs
in support of their respective positions.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.
Upon the basis of the stipulation and exhibits
thereto, the briefs, and the entire record in this case,
the Board makes the following:
Findings of Fact
1. THE BUSINESS OF THE EMPLOYER
Metromedia, Inc., is, and at all times material
herein has been, a corporation duly organized under,
and existing by virtue of, the laws of the State of
Delaware. Metromedia maintains its office and
principal place of business in New York, New York,
where it is engaged in the operation of 12 radio and 6
television broadcasting stations in 10 States, includ-
ing television station KTTV in Los Angeles, Califor-
nia. Metromedia's annual gross revenues derived
from the operation of said radio and television
stations is in excess of $500,000.
The parties stipulated, and we find, that Metrome-
dia, Inc., is, and at all times material herein has been,
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Respon-
dent National Association of Broadcast Employees
and Technicians, AFL-CIO, CLC, and International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
NLRB 785 (1976). This decision will hereinafter be referred to as Case 31-
CD-161.
2 In lieu of filing a brief, IATSE requested that the Board refer to the
brief it filed in the 10(k) proceeding in Case 31 CD-161.
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canada, are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On January 6, 1976,3 Metromedia filed a charge
against IATSE in Case 31-CD-161 alleging that
IATSE had violated Section 8(bX4)(D) of the Act by
engaging in certain conduct with an object of forcing
or requiring Metromedia to assign the operation of
the minicam to employees represented by IATSE
rather than to employees represented by NABET. 4
Pursuant to Section 10(k) of the Act, a hearing was
duly held in which all parties, including NABET,
fully participated. On July 30, the Board issued its
Decision and Determination of Dispute.5 The Board
concluded, after assessing all relevant factors, that
Metromedia's employees represented by IATSE
"were entitled to perform the work of newsgathering
by use of the Akai electronic camera [minicam]." 6
As more fully described in that decision, the Board
rejected certain contentions made by NABET that
the notice of the 10(k) hearing should be quashed.
Chief among those contentions, which has continued
relevance in the present proceedings, was NABET's
assertion that there existed a voluntary method of
adjustment of the dispute which was binding on all
the parties. In this regard, NABET cited an order of
the United States District Court for the Central
District of California directing that a tripartite
arbitration proceeding be conducted. 7 However, we
determined that the court-ordered arbitration was
not a voluntary method of adjusting the dispute,
noting that IATSE's appeal of the court order
indicated its lack of consent to be bound by the
arbitration award, and further noting that neither of
the collective-bargaining contracts between Met-
romedia and IATSE and NABET, respectively,
provides for tripartite arbitration.
On August 3, the Regional Director for Region 31
dismissed the charge against IATSE in Case 31-CD-
161.8 On August 23, Metromedia filed with the
district court a motion for rehearing to determine
whether the court would, in view of the Board's
Decision and Determination of Dispute, dissolve or
3 All dates are in 1976 unless otherwise indicated.
4 Metromedia initially assigned the operation of the minicam to
employees represented by IATSE. NABET filed a grievance protesting the
assignment. IATSE responded with a letter threatening to take economic
action if the assignment to its members were changed.
I Metromedia, Inc., supra, fn. I.
6 The Employer had assigned the work of editing the videotape produced
by the minicam to employees represented by NABET. This work was not
then, and is not now, in dispute.
I NABET originally requested that the court issue an order compelling
arbitration between it and Metromedia to resolve NABETs grievance.
vacate its order compelling tripartite arbitration. A
copy of said motion was sent to NABET.
On August 24, NABET's attorney sent a letter to
Metromedia, pertinent portions of which are as
follows:
I have received copies of documents filed . . .
on behalf of Metromedia, Inc., seeking orders of
the United States District Court either vacating or
staying its order compelling arbitration....
You are hereby placed upon notice that in the
event any order is made by the District Court, or
any other court, which adversely affects the
commencement of this arbitration hearing on
October 13, 1976, or if for any reason Metrome-
dia seeks to further delay this arbitration, or fails
to appear at said arbitration, NABET will
immediately strike and refuse to handle and
process any and all videotape produced by the
mini-camera when such camera and videotape
equipment is operated by an employee or employ-
ees represented by a union other than NABET.
. . . [Y]our conduct in seeking to vacate or
stay the order compelling arbitration. . . is a step
NABET cannot tolerate without taking the steps
indicated above.
The charge giving rise to the present proceeding,
based upon the letter quoted above, was filed against
NABET by Metromedia on September 8. On
October 12, the district court vacated its order
compelling tripartite arbitration and continued in
effect its previous order which stayed the arbitration
between NABET and Metromedia over NABET's
grievance.
B. Contentions of the Parties
NABET asserts that the complaint in this case
should be dismissed, citing several reasons in support
of this contention. Initially, NABET contends that,
pursuant to the Board's Rules and Regulations,
Series 8, as amended, a 10(k) hearing must be held on
the present charge against it. NABET asserts that the
Board has no authority to proceed with an unfair
labor practice proceeding in the absence of such a
Bipartite arbitration was so ordered. Metromedia subsequently requested
that the court compel a consolidated arbitration of the work assignment
dispute under its respective contracts with NABET and IATSE. The court
ordered tripartite arbitration and stayed the bipartite proceeding previously
ordered.
s The dismissal of the charge was pursuant to Sec. 102.91 of the Board's
Rules and Regulations, Series 8., as amended. This section provides that the
charge will be dismissed where the Board determines that employees
represented by the charged union (in this case, IATSE) are entitled to
perform the work in dispute.
76
NABET, AFL-CIO, CLC
hearing. NABET claims that the Board is not entitled
to rely on its decision in Case 31-CD-161 as a basis
for issuing the present complaint alleging the
commission of an unfair labor practice by NABET,
as it was not the union against whom charges had
been filed in that case. It is contended that such
reliance would be proper in further unfair labor
practice proceedings only if NABET were the
charged union and then only if it refused to comply
with the Board's award. NABET further argues that
its letter of August 24 was not a threat within the
meaning of Section 8(bX4)(D), as it was not an
attempt to force a reassignment of the disputed work.
Rather, NABET urges that its letter was a lawful
request for arbitration pursuant to its contract with
Metromedia and pursuant to the court's arbitration
order. NABET claims that it was lawful to threaten a
strike if the Employer failed to fulfill its contractual
obligation to arbitrate NABET's grievance.
The General Counsel argues, contrary to NABET,
that there is no requirement in the Board's Rules and
Regulations that a second 10(k) hearing be conduct-
ed to resolve the same dispute. The General Counsel
analogizes this case to cases in which the Board has
held that, where an unfair labor practice is based
upon a union's noncompliance with the Board's
award after a 10(k) hearing, such award and the
merits of the dispute are not open to review in the
related unfair labor practice proceeding. Thus, the
General Counsel contends that NABET is bound by
the Board's award in Case 31-CD-161, noting that
NABET was a party to those proceedings and
participated fully therein. Furthermore, according to
the General Counsel, a new hearing would be futile,
not only because the Board would be bound by its
prior award, but also because NABET and the other
parties stipulated that there was no new evidence to
present other than the August 24 letter, which is in
evidence before the Board as part of the parties'
stipulation.
Additionally, the General Counsel asserts that
NABET's August 24 letter is indeed a threat to strike
contingent upon the Employer's continued assign-
ment of the operation of the minicam to employees
represented by IATSE. Assuming arguendo that the
letter was designed to force the Employer to submit
to arbitration, the General Counsel claims that a
threat within the meaning of Section 8(b)(4)(D) is
present, as the Board had already issued its award of
the work, and by attempting to pressure the
Employer to assign the work to its members until the
9 Dock Builders, Shorers, House Movers, Pile Drivers and Foundation
Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Vibroflotation Foundation Company), 203 NLRB 381
(1973).
'° Local 157, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, A FL-
CIO (L & K Contracting Company), 190 NLRB 346 (1971).
arbitration process was completed, as well as by
attempting to force the Employer to submit to
arbitration in the face of the Board's award, NABET
was seeking to undermine the Board's superior
authority to resolve jurisdictional disputes, thus
evidencing an intention not to be bound by the
Board's award.
The Employer agrees with the arguments of the
General Counsel and reiterates the position that a
second 10(k) hearing would be pointless. The
Employer claims that NABET is continuing to
demand arbitration of a dispute that has already
been settled.
C. Analysis and Conclusions
We are of the opinion that to conduct a second
10(k) hearing in this case would be an exercise in
futility. At the outset, there is no requirement in the
Board's Rules and Regulations that a second hearing
be held to determine the merits of a dispute that has
already been decided by the Board. Additionally, the
parties, including NABET, have stipulated that, if a
new hearing were held, they would have no new
evidence to introduce, save for NABET's letter of
August 24. The parties have stipulated to the
existence of that letter and to the fact that it is the
only activity which has occurred since the Board's
issuance of its decision in Case 31-CD-161 which
would have any effect on that decision. We have
consistently held that, in the absence of newly
discovered evidence, the Board's award of work in a
10(k) proceeding is not open to review by an
Administrative Law Judge in a related unfair labor
practice proceeding.9 More importantly, we have
held that, where parties waive a hearing before an
Administrative Law Judge and call upon the Board
to render a decision in an unfair labor practice
proceeding related to a 10(k) award, the Board itself
will adhere to its determination in the underlying
10(k) determination, where no new evidence is
presented in the related unfair labor practice pro-
ceeding. ' 0 We do not think that the August 24 letter
is the kind of new evidence which would warrant the
relitigation of the merits of the underlying work
dispute. To invoke the 10(k) process where all
material issues regarding the merits of the dispute
have previously been decided by the Board would be
pointless, as there are no matters requiring a new
hearing.'
11 Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo
Workers Local Union No. I of Tennessee and Bricklayers, Masons and
Plasterers International Union of America (Shelby Marble & Tile Co.), 195
NLRB 123(1972).
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If we were to conduct a second 10(k) hearing based
upon the alleged threats contained in the August 24
letter, we would be forced to expend valuable time
and effort only to arrive at the same conclusion we
have already reached. A new 10(k) decision would
not differ from that already issued in our determina-
tion as to whether the August 24 letter constituted
reasonable grounds to believe that a violation of
Section 8(b)(4)(D) had occurred. As the letter
contains a threat to take economic action based upon
the Employer's assignment of the work, we would, no
doubt, find that such reasonable cause existed.
Proceeding to the merits of the dispute and consider-
ing ourselves bound by our prior award, we would
again award the disputed work to employees repre-
sented by IATSE, rather than to employees repre-
sented by NABET. Since NABET would be the
union against whom the charges had been filed and
since the award of work would not be to its members,
NABET would be ordered to submit evidence of
compliance with the Board's award. Failing such
compliance, NABET would be charged with an
unfair labor practice. There is no question but that
the Board, in the unfair labor practice proceeding,
would find that NABET violated Section 8(b)(4)(D),
both by its initial threats to take economic action and
by its failure to comply with the 10(k) award.
NABET itself, while insisting that a second 10(k)
hearing should be held, inconsistently admits that
such a hearing may indeed be futile. It recognizes
that, if the Board were to reach the merits of the
dispute in a second hearing, it would be bound by its
prior determination and that the results would not be
changed.
We see no reason to go through the involved
procedure of a second 10(k) hearing merely to arrive
at the same conclusion we have already reached in
Case 31-CD-161. To permit such a procedure would
be to allow NABET to have a second opportunity to
litigate issues already decided. NABET fully partici-
pated in the prior 10(k) hearing and the issues therein
were fully litigated and carefully considered by the
Board. We now have before us a charge that NABET
has violated the Act by not complying with the
Board's award, much in the same manner as we
would have a charge if NABET failed to comply with
a new 10(k) determination, for the results of both
determinations are, and would be, the same, and
there is no reason to believe that NABET would
comply with one if, as we find infra, it, has failed to
comply with the other. Such a charge calls not for a
new 10(k) hearing, but for an unfair labor practice
proceeding.
We turn now to an examination of the August 24
letter to determine if an unfair labor practice has
been committed. We reject NABETs contention that
its letter was not a threat to force a reassignment of
the work. The letter clearly indicates NABETs
intention to strike as long as the Employer continued
to assign the operation of the minicam to employees
represented by IATSE. Considering the fact that the
Board had issued its award of the work to employees
represented by IATSE, we are of the opinion that the
threat to strike clearly shows that NABET did not
intend to be bound by the Board's award.
We further reject NABET's claim that its letter was
a lawful request that the Employer fulfill its contrac-
tual obligation to arbitrate its grievance over the
work assignment. Having been vindicated in its work
assignment by the Board, the Employer was within
its rights to petition the district court to vacate its
order compelling tripartite arbitration, realizing that
such arbitration would serve no purpose in the face
of the Board's award. NABET claims that the
arbitration should have taken place in any event,
arguing that, in the event the arbitrator determined
that NABET should perform the work, the Employ-
er, obviously faced with conflicting decisions of the
Board and the arbitrator, could easily obtain
preference for the Board's decision by taking its case
to court. We see no reason to force the Employer to
go to court to obtain a ruling that the Board's
decision would prevail over that of an arbitrator.'s
We arrive at the same conclusion as did the district
court in vacating the tripartite arbitration order,
namely, that further proceedings by an arbitrator
would be in vain, as the Board's decision would take
precedence regardless of whether the arbitrator
agreed with that decision. We are of the opinion that,
by continuing to demand arbitration of a dispute
already settled by the Board in a decision taking
precedence over that of an arbitrator, NABET was
attempting to undermine the Board's authority to
resolve jurisdictional disputes, thus further evidenc-
ing its intention not to be bound by the Board's
award.
Considering all the circumstances herein, particu-
larly NABETs threat to strike if employees repre-
sented by IATSE continued to operate the minicam
and its continuing demand for arbitration of a
dispute already concluded by the Board, we are of
the opinion that NABET has demonstrated an
intention not to abide by our award. Accordingly, we
find that Respondent, by its entire course of conduct,
has violated Section 8(b)(4)(ii)(D) of the Act.
12 Carey v. Westinghouse Electric Corporation, 375 U.S. 261 (1964).
78
NABET, AFL-CIO, CLC
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The conduct of Respondent, as set forth above,
occurring in connection with Metromedia's opera-
tions, has a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the
several States and tends to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(b)(4)(ii)(D) of the Act, we shall
order that Respondent cease and desist therefrom
and take certain affirmative action designed to
effectuate the policies of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent National Association of Broadcast
Employees and Technicians, AFL-CIO, CLC, and
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada are labor organizations
within the meaning of Section 2(5) of the Act.
2. Metromedia, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
3. By refusing to comply with the Board's
Decision and Determination of Dispute in Case 31-
CD-161; by inducing and encouraging individuals
employed by Metromedia to engage in a strike or
refusal in the course of their employment to perform
services; and by threatening, restraining, and coerc-
ing Metromedia, an object in each case being to force
or require Metromedia to assign to employees
represented by or members of Respondent, rather
than to employees represented by or members of
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, the work of operating the
miniature electronic videotape camera, Respondent
has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(4)(ii)(D)
of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
National Association of Broadcast Employees and
Technicians, AFL-CIO, CLC (NABET), Los An-
geles, California, its officers, agents, and representa-
tives, shall:
1. Cease and desist from refusing to comply with
the Board's Decision and Determination of Dispute
in Case 31-CD- 161; inducing or encouraging indivi-
duals employed by Metromedia, Inc., to engage in a
strike or refusal in the course of their employment to
perform any services; threatening, restraining, or
coercing Metromedia, Inc., where an object in each
case is to force or require Metromedia, Inc., to assign
the work of operating the miniature electronic
videotape camera to employees represented by or
members of Respondent, rather than to employees
represented by or members of International Alliance
of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada,
except insofar as such conduct is permitted under
Section 8(b)(4)(D) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 31 for posting by
Metromedia, Inc., if it is willing, at all locations upon
the premises where notices to its employees are
customarily posted.
13 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."
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to comply with the Board's
Decision and Determination of Dispute in Case
31-CD-161 set forth in 225 NLRB 785, awarding
the operation of the miniature electronic video-
tape camera to employees who are members of or
represented by International Alliance of Theatri-
cal Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada;
and WE WILL NOT induce or encourage individuals
employed by Metromedia, Inc., to engage in a
strike or refusal in the course of their employment
to perform any services.
WE WILL NOT threaten, restrain, or coerce
Metromedia, Inc., where an object is to force or
require Metromedia, Inc., to assign the work of
operating the miniature electronic videotape
camera to members of or employees represented
by us, rather than to members of or employees
represented by International Alliance of Theatri-
cal Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada,
except insofar as such conduct is permitted under
Section 8(bX4Xd) of the National Labor Rela-
tions Act, as amended.
NATIONAL ASSOCIATION
OF BROADCAST
EMPLOYEES AND
TECHNICIANS, AFL-CIO,
CLC (NABET)
80