National Association of Broadcast Employees and Technicians, AFC Local 15, AFL-CIO (Lee Rothberg Productions, Inc.)

National Labor Relations Board - Board Decisions

Feb 19, 1982

260 N.L.R.B. 288 (N.L.R.B. 1982)

I)ECISI()NS ()F NATIONAL I.ABOR RELATIONS BOARD
National Association of Broadcast Employees and
Technicians, AFC local 15, AFL-CIO and Lee
Rothberg Productions, Inc. and Directors Guild
of America, Inc. Case 2-CD-635
February 19, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY Mi. MBI RS FANNIN(G, JEFNKINS, AND
ZIMNI RMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed on March 25, 1981, by Lee Roth-
berg Productions, Inc. (herein the Employer), al-
leging that National Association of Broadcast Em-
ployees and Technicians, AFC Local 15, AFL-
CIO (herein NABET), had violated Section
8(b)(4)(D) of the Act.
Pursuant to notice, hearing was held in New
York, New York, on April 23, 29, and 30 and May
7, 1981, before Hearing Officer Pearl Zuchlewski.
The Employer, NABET, and Directors Guild of
America, Inc. (herein the Guild), 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. Thereaf-
ter, briefs were filed by the Employer, NABET,
and the Guild.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made 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:
I. I HI BUSINESS OF 1 Hi IFMPI OYI.R
The Employer, a New York corporation with its
principal office and place of business in New York,
New York, is engaged in the business of producing
television commercials. During the past year, in the
course and conduct of its business operations, the
Employer derived gross revenues in excess of $1
million and purchased and received goods and sup-
plies valued in excess of $50,000 directly from
sources located outside the State of New York. Ac-
cordingly, we find that the Employer is engaged in
I The Guild has filed a motion to reopen the hearing to allow It to
adduce testimony that it clainms Ihe Hearing Officer improperly pre-
cluded, Thus, it clains thai it as prejudiced hy rulings related to the
issues ofr pretext. efficiency industry practice, aind credibilit) ANs we haI; e
found that the Hearing Oflicer's rulings are free Frorm preiudiclal error,
we deny Respondent's motion to reopen the hearing
260 NLRB No. 43
a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdic-
tion herein.
II. III I ABOR OR(;ANIZ I IIONS INVOI VIDI)
The parties stipulated, and we find, that NABET
and the Guild are labor organizations within the
meaning of Section 2(5) of the Act.
III. '1I 1 I)ISIPU I'i
A. Background and Facts of the Dispute
The Employer is engaged in the business of pro-
ducing television commercials, some on film but
most on video tape. The work in dispute involves
the timing function performed in connection with
the production of video tape television commer-
cials. This timing function consists of using a stop-
watch to time segments and the overall length of a
television commercial and of verifying that the seg-
ments total the allotted overall time. The individual
who performs this work also takes notes which are
used in editing the commercial and confers with
the producer and director when production is com-
pleted.
Since 1975, the Employer has used both script
supervisors represented by NABET and associate
directors represented by the Guild to perform the
disputed timing function. In late 1980, the Guild
fined Lee Rothberg, the Employer's president and
a Guild member, for using non-Guild members
(i.e., NABET script supervisors) to perform the
disputed timing function. Rothberg testified that
the Guild also threatened that it would strike the
Employer and that it would refuse to enter into
any future contracts with the Employer unless it
assigned the timing function to associate directors
whom it represents. Thereafter, the Employer as-
signed the disputed work to associate directors rep-
resented by the Guild and they continued to per-
form the work at the time of the hearing in this
proceeding.
By letters dated December 30, 1980, and March
6, 1981, NABET notified the Employer that it was
being fined certain specified amounts for failing to
abide by the terms of its contract and employ
NABET script supervisors to perform the disputed
work. Furthermore, on March 24, 1981, James
Wilson, NABET's associate business manager, con-
tacted the Employer and threatened to strike unless
the Employer met NABET's demand.
On March 25, 1981, the Employer filed the in-
stant charge.
288
ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS
B. The Work in Dispute
The work in dispute is the timing function per-
formed in connection with the production of video
tape television commercials by the Employer.
C. Contentions of the Parties
The Guild claims that no violation of Section
8(b)(4)(D) has occurred and that the case should be
dismissed. It urges that the proceeding is represen-
tational in nature, that NABET's threat was a
"sham" because other remedies were available to
NABET, and that the Employer is engaged in con-
tract avoidance. On the merits, the Guild contends
that its contract with the Employer requires assign-
ment of the disputed work to associate directors
whom it represents. It urges that an award to asso-
ciate directors represented by the Guild wvould be
more efficient and would conform to industry prac-
tice. Finally, the Guild claims that employees it
represents do not have an available job market of
sufficient scope to make up the work which would
be lost.
The Employer contends that the case is properly
before the Board for a determination of the dispute.
On the merits, the Employer urges that the disput-
ed work be awarded to the script supervisors rep-
resented by NABET. In support of its preference,
the Employer relies on its past practice as well as
industry practice, and claims that skills, economy,
and efficiency all favor an award to script supervi-
sors represented by NABET.
NABET also contends that the case is properly
before the Board for a determination of the dispute,
and, generally, relies on the same factors as the
Employer to support an award to script supervisors
represented by NABET.
D. Applicahility of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dis-
pute.
As to (1) above, the record establishes that, on
March 24, 1981, James Wilson, NABET's associate
business manager, contacted the Employer and
threatened to strike unless the Employer met
NABET's demand that it employ script supervisors
represented by NABET to perform the disputed
work. As to (2) above, there is no contention that a
voluntary method for adjusting the dispute exists
which would be binding on all parties.
Accordingly, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that the dispute is properly before the Board
for determination under Section 10(k) of the Act.2
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after taking into account the evidence supporting
the claims of the parties and balancing all relevant
factors. 3
We shall set forth below those factors which we
find relevant in determining the dispute herein.
1. Collective-bargaining agreements
The Guild and NABET each contends that its
respective contract with the Employer supports its
claim to the disputed work. We find support for
the contentions of each party in its respective con-
tract.
We note, in particular, that the Guild's contract
refers specifically, in the functions section, to asso-
ciate directors' performing "timing functions."
However, the Guild's contract, in the general con-
ditions section, also states that the Employer shall
not be required to assign an associate director
where the associate director's duties are required to
be performed by employees under a previously ex-
isting contract. The parties disagree as to the appli-
cation of that section here. Although there is a
conflict and some confusion in the record, it ap-
pears that the NABET contract covering script su-
pervisors, dated March 5, 1974, preceded the
Guild's tape contract with the Employer signed in
1975. In this connection, Rothberg's uncontrovert-
ed testimony is that he discussed the assignment of
timing functions with the Guild's representative,
Glenn Gumpel, during the negotiations in 1975, ex-
plaining that the script supervisors should do the
work. According to Rothberg, Gumpel replied that
the Employer either sign the contract as it was or
not at all.
2he (iGuild conitendS that no valid legitimate threat was made by
NAB'l Iv which vas, intended to coerce the Employer in the assignment
of the dispuled work, and thait a jurisdictional dispute does not exist here
In support ,of its contention, the Guild relies on then Chairman Fanning's
discnting opinion i n.\' e arA Ifvpraphcial Union .o 103 a i Interna.
tional Ijrographical UInon. 41I.-C10I (Ehizubeth Dailt Journal, a Diviioun
gJ ,fi,d-.4lnanti, ,n'VtnpaptI,tO. 220() NLRB 4. 7 (1975). That case differs ma-
terially frrm Ithe instant case, perhaps most significantly because the
members of the union making the alleged threat were already performing
Ihe disputed work Hlere. employees represented by the Guild were per-
fiorning the disputed work when NAHET threatened to strike unless the
disputed work was assigned to script supervisors represented hb
NA H! I A