National Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1985

276 N.L.R.B. 118 (N.L.R.B. 1985)

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Broadcasting Company , Inc and Directors
Guild of America, Inc Case 2-CA-18751
12 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 22 September 1983 Administrative Law
Judge Howard Edelman issued the attached deci
sion The Respondent filed exceptions and a sup
porting brief,' and the General Counsel and the
Charging Party filed briefs in answer to the Re
spondent's exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judges rulings, findings, 2 and
conclusions3 and to adopt the recommended Order
as modified 4
The judge balancing the competrig interests in
volved, found that the Respondent violated Section
8(a)(1) and (5) of the Act by denying the Union
access to the Respondent's remote facilities at the
Bay Hill golf tournament in March 1982 While we
agree with the finding of this violation, we do so
for the following reasons
i The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces its that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
9 The judge in concluding that the Respondent violated Sec 8(aXl)
and (5 ) by denying the Union access to the remote facilities at the Bay
Hill golf tournament in March 1982 found that the denial of access also
constituted a unilateral change in working conditions However although
we agree with the judge s findings that the Respondent had a longstand
mg practice of permitting union representatives unlimited access to studio
facilities we do not agree with his finding that the Respondent had such
a practice with regard to its remote facilities let alone that such a prat
tice ripened into a contractual right To the contrary we find that the
record does not substantiate the finding of an established right of access
to remote facilities The few occasions prior to Bay Hill when a union
representative visited a remote facility merely after obtaining credentials
to enter the property on which the particular sports event was located
are insufficient in our view to establish any longstanding practice of un
limited access particularly since it further appears that the same union
representative was limited by the Respondent to 10 minutes in a remote
facility during a live broadcast at the La Costa golf tournament in April
1981 Thus although we agree with the finding of an 8(aX5) violation on
other grounds (see our discussion infra) we do not adopt the judge s
finding that the Respondent s dental of access at the Bay Hill golf tourna
ment constituted an unlawful unilateral change
4 We shall modify the recommended Order to more appropriately
remedy the violation found in this decision and to conform the narrow
cease and desist language to that customarily used by the Board
The Board held in Holyoke Water Power Co 273
NLRB 1369 (1985), that in cases involving a
unions request for access to an employers prem
ises for informational purposes, it will apply a bal
ancing test derived from NLRB v Babcock &
Wilcox C6,5 which seeks to accommodate both the
employer's common law right to control its proper
ty and the employees statutory right to proper
representation by their union In Holyoke the
Board stated that this balancing test applies as fol
lows
Where it is found that responsible represents
tion of employees can be achieved only by the
union's having access to the employer's prem
ises, the employers property rights must yield
to the extent necessary to achieve this end
However, the access ordered must be limited
to reasonable periods so that the union can ful
fill its representation duties without unwarrnt
ed interruption of the employers operations
On the other hand, where it is found that a
union can effectively represent employees
through some alternative means other than by
entering on the employer's premises, the em
ployer s property rights will predominate, and
the union may properly be denied access 6
Finally as the Board stated in that case, In sum,
the circumstances presented in each case involving
a request for access must be carefully weighed and
each of the conflicting rights must be carefully bal
anted and accommodated in reaching a decision
In applying such a balancing test in the instant
case the following circumstances must be consid
ered As found by the judge, the Union sought
access to the Respondents remote facility at Bay
Hill in order to observe whether nonunit personnel
were performing the work of unit personnel, spe
cifically whether the producer was performing
certain `cueing functions of the director and also
crate director 8 We agree with the judge that the
information sought by the Union clearly was rele
vant to a pending arbitration on that very subject
as well as to the Union s general purpose of polic
mg its collective bargaining agreements including
the work jurisdiction provisions
Regarding the manner in which such information
could be obtained, it cannot be gainsaid that the
most direct way would be to have a union repre
sentative inside the remote facility in order to ob
serve the unit and nonumt personnel in action, e g ,
b 351 U S 105 (1956)
Holyoke supra, 1370
r Id at 1370
9 Cueing is the giving of commands orally or by hand signals to
technical personnel and announcers
276 NLRB No 17
NATIONAL BROADCASTING CO.
during live broadcast or during taping for later
broadcast.. We agree with the judge's observation
that the use of a headset outside the remote facility
would not enable the union representative to detect
visual cueing at all and that even verbal cueing
would be difficult to detect unless the union repre-
sentative was familiar with the voices and could
identify them under often hectic conditions.
Furthermore, with regard to the limited access
proposed by the Respondent, the judge found, and
we agree, that allowing the Union access only
when the remote facilities were not in operation is
equivalent to not allowing access at all. There is no
showing here that the mere presence of a union
representative inside a remote facility during live
broadcast or, taping would cause any interference
with production. Moreover, as the judge found, it
has not been shown that the remote facilities and
equipment used at Bay Hill in March 1982 -were
materially different in size or internal configuration
from the facilities and equipment used before or
after that tournament.
Based on all of the foregoing, we find that the
Union needed access to the Respondent's remote
facilities in order to observe operations for the pur-
pose of policing and enforcing its collective-bar-
gaining agreements. It has not been established that
providing such access would result in any interfer-
ence with . the Respondent's -broadcasting oper-
ations. In these circumstances, we find, on balance,
that the representational interests of the Respond-
ent's unit employees outweigh the Respondent's
property rights. Therefore, the Respondent's prop-
erty rights must yield to the extent necessary to ac-
commodate such interests.
Accordingly, we find that the Respondent's ef-
fective _denial of access to the Union in the circum-
stances of this case was violative of Section 8(a)(5)
and (1). However, unlike the judge, we do not find
that the access to,which the Union is entitled is un-
limited. As indicated above, the Board stated in
Holyoke ^ that an access order must be limited, to
reasonable periods so as to avoid an unwarranted'
interruption of an employer's operations. We there-
fore shall modify the judge's recommended Order'
to limit the access granted to reasonable times and
places sufficient to allow the Union to fulfill its.
representational duties.
ORDER
The National Labor ,Relations Board adopts the
recommended . Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, National Broadcasting
Company, Inc., New York, New York, its officers,
agents, successors, and assigns, shall
119
1. Cease and desist from
(a) Refusing to bargain collectively with, the
Union, Directors Guild of America, Inc., by refus-
ing to grant union representatives access to its
remote facilities, at reasonable times and places, to
observe operations for the purpose of policing' and
enforcing the collective-bargaining. agreements.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the.ex-
ercise of the rights guaranteed them by Section 7
of the Act.,
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On the Union's request, grant access to, its'
remote facilities, at reasonable times and 'places, to
observe operations for the purpose of policing and
enforcing the collective-bargaining agreements.
(b) Post at its New York, New York TV studio
facilities copies of the attached notice marked "Ap-
pendix."9 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being,
signed by the Respondent's authorized representa-
tive, shall be posted by 'the Respondent immediate-,
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken, by then Respondent
to ensure that the notices are not. altered, defaced,
or covered by any other material. ,
(c) Notify the Regional Director in writing'
within 20 days from the date of this Order what
steps the Respondent has taken' to comply.
9 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " •
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National ' Labor Relations Board -has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
the Union, Directors Guild of America, Inc., by re-
fusing to grant union representatives, access to our
remote facilities, at reasonable times and places,. to
observe operations'for the purpose of policing' en-
forcing the collective-bargaining agreements.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on the Union s request grant access to
our remote facilities, at reasonable times and
places, to observe operations for the purpose of po
licing and enforcing the collective bargaining
agreements
Respondent admits and I find that it is an employer en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II LABOR ORGANIZATION
Respondent admits and I find that the Union is and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
NATIONAL BROADCASTING COMPANY
INC
Michael J DiMattia Esq for the General Counsel
Donald W Savelson Esq (Proskauer Rose Goetz & Men
delsohn) for the Respondent
Linda Gail Bartlett Esq for the Charging Party
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN Administrative Law Judge This
case was tried before me on April 11-13 and May 15 and
16 1983 in New York New York
On April 22 1982 i the Directors Guild of America
Inc (the Union) filed a charge against the National
Broadcasting Company Inc (Respondent) alleging a vio
lation of Section 8(a)(1) and (5 ) of the Act On January
3 1983 following an investigation of this charge the Re
gional Director for Region 2 issued a complaint alleging
that Respondent had violated Section 8(a)(1) and (5) of
the Act by denying the Union s request to permit a union
representative in Respondents sports remote facility in
connection witl- the 1982 Arnold Palmer (Bay Hill) golf
tournament being televised by Respondent for the pur
pose of policing the collective bargaining agreement be
tween the Union and Respondent
Briefs were filed by the General Counsel counsel for
the Charging Party and counsel for Respondent On
consideration of the entire record the briefs and my ob
servation of the demeanor of the witnesses I make the
following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation and a subsidiary
of the RCA corporation with corporate offices located
at 30 Rockefeller Center New York New York and
various other offices and facilities located throughout the
United States At all times material herein Respondent
has been engaged in the production broadcast and mar
keting of radio and television programs In the course
and conduct of such business operations Respondent an
nually derives gross revenues in excess of $1 million and
purchases and receives at its New York facilities goods
and materials valued in excess of $50 000 directly from
firms located outside the State of New York
i All dates are 1982 unless otherwise indicated
For many years and at all times material herein the
Union has been the exclusive collective bargaining repre
sentative in a unit which includes TV staff and freelance
directors and associate directors 2
There is no written provision contained in the various
documents which comprise the collective bargaining
agreement between the Union and Respondent covering
access of union representatives to Respondents facilities
However there is no dispute that pursuant to a long
standing practice union representatives have been ac
coided without specific request free and unlimited 24
hour access to any and all of Respondents studio facili
ties where unit employees may be working including
during such times that live broadcasts are taking place
In connection with remote facilities which are Re
spondent s mobile facilities and are located at the event
being televised 3 union representatives pursuant to a
similar longstanding practice have been accorded on re
quest complete and unlimited access to Respondent s
remote facilities including the master control truck and
tape truck A specific request by the Union seeking
access to a remote facility is necessary because such fa
cilities are located on the property of a third person and
it is thus necessary for Respondent to provide credentials
m order to insure admission to such private property
Except for the instant dispute there has been no instance
where the Union has requested access to a remote facili
ty and such request has been denied or limited
The usual staff of employees present in the master con
trol truck of a remote facility consists of the producer
who is in overall charge of the remote facility and who
is a nonunit employee a director and associate director
who are unit employees a technical director sports
expert (in a sports remote facility) statistician chyron
operator and one or two technicians all of whom are
nonumt employees In addition to this technical staff Re
spondent usually employs runners who are often teen
alters and volunteer their services to convey messages
and deliver refreshments to the technical personnel Also
present in the command truck during live broadcasts
from time to time are visitors such as sponsors or rela
tives of Respondent executives etc
For at least since 1980 all remote facilities sports or
otherwise in all physical aspects have been identical
The master control truck consists of a trailer approxi
2 The parties collective bargaining agreement consists of numerous
documents and covers a complex unit encompassing a multitude of other
classifications not relevant to this case Accordingly the actual bargain
mg unit is not described in full
0 Examples of remote facilities include golf tournaments baseball
basketball and football games operas political conventions etc
-NATIONAL BROADCASTING CO
mately.8 feet wide by 40 feet long. Access to this trailer
consists of a side and' rear door. The equipment is gener-
ally located in the front end of the trailer which includes
numerous TV monitoring screens and other related
equipment housed in the front panel. Although equip-
ment is constantly being - modified and improved, the
space within the trailer and the locations of the various
equipment have been-the same since at least 1980.
The director and associate directors- assigned by Re-
spondent to remote facility, broadcasts are generally free-
lance personnel, rather than staff personnel. A freelance
director or associate director is not a full-time employee
of Respondent. • He is hired on a job or on a contract
basis at the sole discretion of Respondent. Freelance di-
rectors and associate directors are' not covered by the
provisions of the parties' collective-bargaining agreement
except that they are required to become members of the
Union. Associate directors, although covered by the
"just cause" for discharge provision of the contract, are
not protected' in connection with job assignments, and
thus are assigned to work remote facilities at the sole dis-
cretion of Respondent. Staff personnel are not generally
assigned to work remote facilities. However, when they
do receive such assignments, their status is the same as
freelance personnel.. In other words, their assignment to
the lucrative remote facilities is at the sole discretion of
Respondent and they are not protected by the terms of
the collective-bargaining agreement.
The directors and associate directors assigned to work
remote facilities are extremely highly paid individuals'
earning up to $200,000 per year for'directors and up to
$140,000•for'associate directors. Staff directors'and asso-
ciate directors working' in Respondent's studio facilities
earn far less. -
For a number of years the Union has been concerned
with nonunit personnel, especially the producer perform-
ing unit- work in connection with Respondent's remote
facility broadcasts. One of the unit functions which is of
major concern to the union is "cueing." Cueing may be'
defined as an auto or 'visual command by a director or
associate director to, technical `personnel to perform a
particular function. Often "cueing" consists of the direc-
tor or associate director pointing a finger at the technical
personnel- designated to peform certain particular func-
tions. At other times, "cueing" is accomplished by verbal
commands. -
Sometime during the early-part of 1981 the Union re-
ceived reports that Larry Cirillo; Respondent's producer
of its golf tournament broadcasts was peforming the unit
work. In April 1982, in order to determine the validity
of this information, and to otherwise generally police
their collective-bargaining agreement, the Union assigned
Donald Gold, its West Coast representative, to visit Re-
spondent's sports remote facility at the 1981 LaCosta
Golf Tournament and observe during a live -broadcast
whether its collective-bargaining agreement was being
violated. Pursuant to the longstanding practice; 'described
above, the Union requested that Gold be granted access
to Respondent's remote' facility at LaCosta and such re-
quest was granted. Gold obtained credentials, and on
April 18 reported to the LaCosta Country Club 'in La-
Costa, California. When Gold arrived at the master con-
121
trol truck, he was notified for the first time by the unit
manager that access to'the control truck during the live
broadcast. would be limited to 10 minutes. Gold went
into the control truck and, during the 10-minute period
allowed him, observed what he considered to be several -
instances where Producer Larry Cirillo was performing
the work of the director or associate director. Following
Gold's visit to LaCosta he reported these violations to
his superiors. As a result of this report, the Union filed a
grievance in connection with, the 1981 LaCosta Golf
Tournament alleging that Producer Larry Cirillo was
performing unit work. At present, 'arbitration on this
grievance is pending.
Sometime in mid -February 1982, Alan Gordon, the
Union's eastern executive secretary, called Rita Siegel,
Respondent's director- of labor relations, and requested
credentials for its representative, Bill Grief, so that he
could have access` to the Arnold Palmer (Bay Hill, Flori-
da) Golf Tournament scheduled to be broadcast by Re-
spondent during March. Gordon informed Siegel at this
time that the purpose of the visit was-to observe the
broadcast and collect possible evidence of nonunit em-
ployees performing unit work in connection with the
Union's pending arbitration concerning the 1981 LaCosta
Golf Tournament. Siegel, told Gordon that she would get
back to him later concerning his request. Following her
conversation with Gordon, she contacted -Don Baer, Re-
spondent's vice president of sports operations, and noti-
fied him of Gordon's request. Following a conference
with Baer, Siegel contacted Gordon and informed' him
that the union representative would have limited access
to Respondent's sports remote facility at the Bay' Hill
Golf Tournament. She stated that the union representa-
tive would be denied access to the control truck "while
it was in operation," during this broadcast, or during
taping, to be used during the live broadcast. Gordon
questioned Siegel as to the reason for such limited
access. Siegel told him that access was limited because of
the cramped quarters in the control truck and' because •
Respondent would be fusing certain ^ new equipment'
Siegel'then pointed out that the Union had its members
present. during the broadcast and taping and thus they
had adequate means of policing their contract. This is an
obvious reference to the director and associate director,
who are required to be members of the Union. Gordon
then requested that Respondent provide the Union with
an outside line from the control truck so that the union
representative could stand outside the. truck and monitor
the activity inside the truck with a. headset. Siegel re-
plied that Respondent would not'set up such a line as it
was too expensive. .
The so-called .new equipment referred to. by' Siegel
was in reality a modification of an established device
called a Quantel, which permits 'various "split screen ef-
fects during live broadcasts." The location of this modi-
fied equipment in the control truck did' not affect the 'in-
ternal arrangement or makeup of the trailer which has
been' the same in all remote facilities since at least 1980.
No evidence was submitted by Respondent which indi-
cated -any special -propensity for breakdowns of 'this
modified Quantel. '
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days later, Union Field Representative Bill
Grief contacted Rita Siegel to obtain credentials to vist
the Bay Hill Golf Tournament remote facility. During
this conversation Siegel informed Grief that because the
control truck was crowded and because Producer Larry
Cirillo was a nervous, individual he would not be al-
lowed in the control truck during the live broadcast or
when taping. She informed him that ^ he could have
access to the control truck when it was not in operation.
Grief arrived at,the Bay Hill Tournament on March 6.
He obtained-his credentials and was admitted to the'golf
course grounds at 12:30 p.m. He approached the control
,truck which was in operation, taping tournament activity
for a later broadcast. Seeing no one present outside the
truck he opened the rear door, walked in unannounced,
and stationed himself in the rear of the control truck and
observed the taping operations. The control truck was
the standard truck used at all remote facilities, • sports or
otherwise, since at least 1980 with the same internal
layout and the usual complement of personnel. Larry
Cirillo as usual was the producer.
Grief credibly testified without contradiction -that at
one point while he was observing the taping activity in
the control truck one of the runners assigned to 'the con-
trol truck asked the director, Andy Rosenberg, whether
several other runners assigned to the golf course could
come into the trailer and watch it in operation. Rosen-
berg asked Cirillo who said it would be all right. Shortly
thereafter, two' or three additional runners entered the
control- truck while in operation- and stayed for 15 min-
utes or so. Grief remained in the rear of the control
truck while it was in operation for a period of over an
hour. During this period of time Grief testified that he
observed' Cirillo 'repeatedly performing what he consid-
ered to be unit- work. After he had been in the truck
over an hour, a - technician entered the truck and paged
him. At this point Grief identified himself. Several min-
utes later, Mike Sherlock, Respondent's vice president of
technical operations, entered the trailer and asked Grief
to leave. ' Grief left without argument. During 'the entire
time that Grief was . present in the control truck there
were no complaints concerning his presence.
After Grief left- the control truck, he waited outside. A
short time later Mary Buta, the associate director as-
signed to this sports remote, came out of the control
truck. Grief attempted to speak with her but she refused
to talk with him. Shortly thereafter, Andy Rosenberg,
the director,- left the control truck. Grief attempted to
speak with, him, but he too refused. Both Buta and
Rosenberg are staff personnel.
The following day, March 7, Grief was again given
credentials. However, he was again denied access to
both the, master control truck and the tape truck 'while
either facility; was in operation.
Alan .Gordon credibly testified that, the, Union tradi-
tionally has found it virtually impossible to get any coop-
eration from directors and associate directors assigned to
work remote facilities, concerning violations of their col-
lective-bargaining agreement . He testified that in connec-
tion with arbitrations over the years employees in these
classifications have been extremely reluctant to testify..
The reason for such lack of cooperation is that directors
and associate directors assigned to work remote facilities
are essentially not covered or. protected by the provi-
sions of the Union's collective-bargaining agreement
except that they are required to become members of the
Union. These employees therefore are entirely dependent
on Respondent for assignment to the lucrative remote fa-
cility jobs. As set forth above, these employees earn up
to $200,000 per year. Gordon testified that, in view of
such' total dependence-on Respondent ,for their income,
and, in view of the Union's inability to offer them protec-
tion in connection with such job assignments, they are
unwilling to cooperate in connection with grievances
filed' by the Union against Respondent especially where
such grievances involve nonunit employees performing
unit work. Indeed, the lack of cooperation is so intense
and, widespread that the Union has been unable to find
'individuals assigned.-to Respondent's remote facilities
who are willing to act in the capacity of shop stewards
in remote facilities. Accordingly, there are no union shop
stewards present in, remote facilities. Gordon testified
that, in view of these circumstances, the only personnel
available to the Union to police the collective-bargaining
agreement is their own field representatives.
Analysis and Conclusions
It is well settled that Section 8(a)(5) of the Act im-
poses an obligation on an employer to furnish on request
all information relevant to the bargaining representatives'
intelligent performance of its function. NLRB v. Yawman.
& Erbe Mfg. Co., ,187 F.2d 947. (2d Cir. 1951); Timken
Roller Bearing, Co. v. NLRB, 325 ' F.2d 746 (6th Cir.
1963). This obligation extends to information in which
the union may require in order "to police and administer
existing agreements." J. I. Case Co. v. NLRB, 253 F.2d
149 (7th Cir 1958); Timken' Roller Bearing, supra. Of
course, the information sought by a union must be rele-
vant and reasonably necessary to its role as bargaining
agent . Curtiss-Wright Corp. v., NLRB, 347 F.2d 61 (3d
Cir. 1965). , ' - ,
In the instant, case, the reason the Union sought to
obtain access to Respondent's remote facility at the Bay
Hill Golf Tournament was to observe whether Producer
Larry Cirillo was performing unit work. Such informa-
tion is obviously relevant. In this case such information
was relevant to a pending arbitration concerning the
1981 LaCosta Golf Tournament, where it was alleged
that the same producer was. performing the unit work of
directors and associate directors. Such information was
also relevant for the general purpose of enabling the
Union to police its collective-bargaining agreement. I
conclude that the' information sought by the Union in
connection with the 1982 Bay Hill Golf Tournament was,
clearly relevant and necessary to enable it to fulfill its
function as collective -bargaining representative. As the
court stated in NLRB v. -Rockwell-Standard Corp.;' 410
F.2d 953, 957 (6th Cir. 1969):,
Where the requested information, concerns wages
and related information for, employees in the bar-
gaining unit , the information is presumably relevant
to bargainable issues. `
NATIONAL BROADCASTING CO.
See also-in this connection NLRB Y. Acme Industrial Co.,
385 U.S. 432 (1967).
A major issue presented in this case is whether a non-
employee union, representative is entitled, on appropriate
request, to access to Respondent's facilities for the pur-
poseof obtaining the information described.
At the outset, it must be noted that the collective-bar-
gaining agreement between the parties is silent as to the
issue of access to Respondent's facilities. If the collec-
tive-bargaining agreement contained a provision provid-
ing for unlimited access to its facilities, then a denial of
such access would constitute a unilateral change, viola-
tive of Section 8(a)(5) of the Act. However, Respondent
has admitted that for many years it has permitted union
representatives-unlimited access to all its facilities, both
studio and remote. Respondent was unable to recall any
instance where a union request to visit one of its remote
facilities was denied. The only limitation placed on gain-
ing access to Respondent's remote facilities was that the
union representative first obtained proper credentials.
The sole reason for this procedure was because remote
facilities are located on the property of some third
person. The credentials are therefore necessary to enable
the union representative to gain access to such private
property.
Respondent contends that notwithstanding this long-
established procedure, such procedure was regarded by
Respondent as'a privilege which could be withdrawn,
and not a right to which the' Union was entitled. The
Board considered this very issue in Granite City Steel
Co., 167 NLRB 310 (1967), a case very similar to the in-
stant case. In Granite City, the collective-bargaining
agreement was silent on the issue of plant access to union
business representatives However, for many years, busi-
ness representatiaves were, routinely and automatically
accorded unlimited- access to all areas of the plant. Fol-
lowing, an incident of misconduct by a particular business
agent, the employer unilaterally imposed certain access
restrictions. The trial examiner in this decision, adopted
without comment by the Board, rejected the employers'
position that such access to the plant was a privilege, and
not a right set forth in the collective-bargaining agree-
ment . The trial examiner concluded that the employer's
action "was tantamount. to a unilateral modification of
the established contractual grievance procedure as histori-
cally administered and followed by the parties ... ."
The trial examiner further concluded that such, estab-
lished procedure became part of the parties' collective-
bargaining agreement , although it was never actually re-
duced to writing.
I conclude, in accordance with the rationale set forth
in Granite City that Respondent 's longstanding practice
of permitting union • agents unlimited access to its studio
and remote facilities ripened into a contractual right. I
further conclude the denial by Respondent to Union
Agent Bill Grief of such unlimited access at its Bay Hill
remote facility constituted a unilateral change in working
conditions in violation of Section 8(a)(1) and (5).
Notwithstanding this' conclusion, I would still never-
theless conclude that the Union was entitled to such 'un-
limited access based on a balance of competing interests.
123
In the, absence of a contractual right to access, the
Board and the courts have generally applied a balance of
competing interests test to determine whether a union
has a right of access. Once ,the union establishes rel-
evance of the information sought, and the need for
access, as opposed to other means to obtain such infor-
mation, the union is entitled to such access, unless the
employer can establish that such access is' unreasonable.
NLRB w Babcock & Wilcox Co:, 351 U.S. 105 (1956); Re-
public Aviation Corp. v. NLRB, 324 U.S. 793; Fafnir Bear-
ing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966), enfg. 146
NLRB 1582 (1964); Wilson Athletic Goods Mfg. Co., 169
NLRB 621 (1968). As set forth succinctly by the Board
in Wilson Athletic Goods:
It is well settled that Section 8(a)(5) of the Act im-
poses an obligation upon an employer to furnish,
upon request, all information relevant to the bar-
gaining representative 's intelligent performance of
its functions . . . . [c]ompliance with the good-faith
bargaining prescribed by the Act required Respond-
ent •to cooperate with the Union by making plant fa-
cilities available [for investigation], unless the
Union's request was improper for some other reason
or imposed an unreasonable burden on Respondent.
In applying a balancing test of competing interests, I
will first consider the Union's necessity for access to Re-
spondent's remote facility.
The, evidence established that the Union was legiti-
mately concerned with the issue of whether nonunit per-
sonnel in the master control truck, especially Producer
Larry Cirillo, was performing unit work of the director
and associate director. This unit work involved the func-
tion of "cueing" as well as other work-related functions
which are accomplished both orally and by hand signals.
It is perfectly obvious under these circumstances that the
only way to determine whether such unit work is being
performed by nonunit personnel is to observe such per-
sonnel in action,during a live broadcast or when taping
for subsequent live broadcasts. •
Respondent contends that the Union could have ob-
tained such information by the use of a headset connect-
ed to the master control truck which would enable the
union representative to hear all conversations occurring
within the master control truck during live broadcasts
and during taping procedures. However, the use of such
headset would not enable the union representative to
detect,visual violations, i.e., "cueing" by means of hand
signals . Moreover, the use of the headset would require
the union representative to be able to identify the par-
ticular voices of all individuals in the control truck and
to determine which individual at any particular instant
was issuing an oral instruction or "cue." This is a virtual
impossibility given the hectic conditions that exist in all
remote facility broadcasts. Even if the union representa-
tive were familiar with the voices of various individuals
so as to be able to identify them, which does not appear
to be the case, it is ,unrealistic to believe that such repre-
sentative could identify such voices in connection with
the hectic activity constantly taking place in the master
control truck during live broadcasts. However, Respond-
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent s contention is reduced to an absurdity since the evi
dence established that when Union Representative Alan
Gordon requested Linda Siegel Respondents representa
tive to provide its field representative with a headset
after Respondent had denied the Union access to the
master control truck when it was in operation Siegel
told Gordon that Respondent would not provide one be
cause it was too expensive
Respondent also contends that unit personnel in the
master control truck could have provided such mforma
tion to union representatives and access was unneces
sary However the evidence established that the direc
tors and associate directors assigned to their remote fa
cilities who are highly paid individuals are selected and
retained solely at the discretion of Respondent They are
not effectively protected by the collective bargaining
agreement Under these circumstances it is natural and
understandable that such individuals would be reluctant
to report to the Union alleged contract violations That
this is so is established convincingly by Gordon s credi
ble testimony that such directors and associate directors
invariably refuse to cooperate in obtaining such informa
tion nor do they testify in connection with related arbi
trations In fact their reluctance to cooperate with the
Union is so intense that the Union is unable to appoint
shop stewards from such unit personnel Such lack of co
operation is further established during Bill Griefs visit at
the 1982 Bay Hill remote facility In this connection
when Grief attempted to speak with Director Rosenberg
and Associate Director Buta as they left the master con
trol truck they refused to speak with him
Considering all these circumstances described above I
conclude that the only way available to the Union to
police its collective bargaining agreement in connection
with Respondents remote facilities is through the use of
union field representatives present in such facilities
during operation Fafnir Bearing Co supra
Respondent contends that the limited access it granted
the Union at the Bay Hill remote facility was adequate
for its purpose Such access was limited to times when
the master control truck and the tape truck were not in
operation Under such limitation it would therefore be
impossible for the Union to observe nonunit employees
performing the union work since no work was being per
formed Indeed such limited access as proposed by Re
spondent is an analogous to the reclusive Major Major in
Joseph Heller s novel Catch 22 who could only be seen
in his office when he was not there In short I conclude
that the limited access proposed by Respondent was no
access
In connection with the issue of whether such access
was unreasonable Respondent contends it denied unhm
ited access to the Union because the master control truck
was too crowded and Respondent was using newly
modified equipment However the evidence established
that the same exact master control truck with the same
internal design and internal space setup was used on all
its remote facilities sports and otherwise since at least
1980 Moreover the Union had always been granted
such unlimited access to Respondents remote facilities in
the past Further Respondent admits it would have
granted such unlimited access to future golf remotes
using the same trailer and equipment as being used at the
Bay Hill tournament Griefs testimony further estab
lished that during the Bay Hill Golf Tournament the
master control truck was the same truck with the same
internal design and space as used by Respondent at all
prior remote broadcasts and was staffed by the usual
complement of personnel including runners Indeed
Producer Cinllo permitted additional runners not as
signed to the master control truck to visit the truck for a
15 minute period during taping operations Moreover
Grief who managed to enter the master control truck
went unnoticed until he was paged and as a result identi
feed Had he not been paged he might still be there
In connection with the new equipment being used in
the trader the evidence established that the Quantel had
been in use before that it was not new or revolun
tary equipment but rather a modification of older
equipment and that it fit into the usual internal spacing
arrangement of the trailer without taking up any addi
tional space Moreover there was no evidence that es
tablished that Respondent had any expectations that the
Quantel would require any special maintenance Accord
ingly I conclude Respondents contention is totally with
out merit
Respondent additionally contends that unlimited access
was demed at Bay Hill because of a clash of personalities
between Arnold Palmer and Producer Larry Cinllo It is
contended that Palmer had strong views as to how his
golf tournament should be televised and that Cinllo a
volatile man with strong views of his own clashed with
Palmer Respondent contends that under these circum
stances it was not advisable to allow union representa
tives in the trailer The only evidence of such personality
clash between Palmer and Cinllo offered by Respondent
during the trial was a Golf Digest article written by Don
Wade the Associate editor for the March 1979 issue
The article was rejected as an exhibit over Respondent
counsels motion that it be received for the truth of the
content herein 4 Notwithstanding that the article was
dated March 1979 3 years prior to the instant tourna
ment the article itself failed to establish the clash of per
sonalities alleged Rather the article established that
Palmer had certain ideas as to how the 1979 Bay Hill
Golf Tournament should be televised and communicated
such ideas to Cirillo Cinllo was not only impressed with
Palmer s knowledge of television broadcasting and his
ideas but decided to adopt many of them Contrary to
Respondents contention the article established a spirit of
mutual admiration and joint cooperation between Palmer
and Cinllo in connection with the 1979 broadcast of the
Bay Hill tournament There is no evidence whatever in
the record to support any personality clash between
Palmer and Cinllo that may have existed in connection
with the 1982 Bay Hill tournament Nor is there any evi
dence to establish that Cinllo s temperament in the 1982
Bay Hill tournament was any different from other golf
* Counsel for Respondent moved that I take judicial notice of the
March 19 1979 Golf Digest article for the truth of the contents therein
Such motion was demed Neither Wade Palmer nor Cirdlo was called as
a witness
NATIONAL BROADCASTING CO 125
tournaments produced by him Accordingly I conclude
Respondents contention is without merit
I therefore conclude that after balancing the compet
ing interests between the Union and Respondent the
Union has established that the information sought was
relevant and has further established that its only means
to obtain such information was through unlimited access
of Respondents remote facilities Respondent on the
other hand has failed to establish that such unlimited
access was either improper or unreasonable I therefore
conclude that Respondent by denying the union and its
agents unlimited access to its Bay Hill remote facility on
March 6 and 7 1982 violated Section 8(a)(1) and (5) of
the Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 At all times material herein the Union and Re
spondent have been parties to a collective bargaining
agreement and at all times material herein the Union has
been the exclusive representative for purposes of collec
tive bargaining of a unit of employees which includes all
Respondents TV staff and freelance directors and associ
ate directors
4 By refusing to permit to union representatives un
limited access to its remote facilities during the 1982
Arnold Palmer golf tournament at times when unit per
sonnel were performing unit work in such facilities and
in accordance with its longstanding practice Respondent
refused to bargain with the Union and thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and Section 2(6) and (7) of
the Act
5 By the foregoing conduct described in paragraph 4
Respondent has interfered with restrained and coerced
its employees in the exercise of Lne rights guaranteed in
Section 7 of the Act and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act
THE REMEDY
Having found that the Respondent has committed
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes
and policies of the Act
[Recommended Order omitted from publication ]