Photo-News Guild

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1796 (N.L.R.B. 1977)

1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Photo-News Guild and Midwest Radio-Television,
Inc., d /b/a WCCO-TV and International Brother-
hood of Electrical Workers, Local No. 292, AFL_
CIO. Case 18-CD-207
January 31, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by Midwest Radio-Television, Inc.,
d/b/a WCCO-TV, herein called the Employer,
alleging that the Photo-News Guild , herein some-
times called Respondent or the Guild , had violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign certain work to its
members rather than to employees represented by the
International Brotherhood of Electrical Workers,
Local No. 292, AFL-CIO, herein called IBEW Local
292.
Pursuant to notice , a hearing was held before
Hearing Officer Craig D. Leffler on August 11, 12, 17,
18, and 19, 1976 . All parties appeared and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following fmdings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated , and we find , that the
Employer , a Minnesota corporation with its principal
place of business in Minneapolis , Minnesota, is
engaged in commercial television broadcasting
through station WCCO in Minneapolis . During the
past year, the Employer purchased goods and servic-
es valued in excess of $50,000 from outside the State
of Minnesota . The parties also stipulated, and we
find , that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
I Hereinafter sometimes referred to as a rmmcam
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
The parties refused to stipulate that Respondent
and IBEW Local 292 were labor organizations within
the meaning of the Act. The record reflects, however,
that both Respondent and IBEW Local 292 exist for
the purpose of representing employees in negotiations
with employers concerning wages, hours, and work-
ing conditions, and that employees participate in its
affairs. Accordingly, we find that Respondent and
IBEW Local 292 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer's technicians are represented by
IBEW Local 292, its news cameramen by Photo-
News Guild. The news cameramen were originally
represented by International Alliance of Theatrical
Stage Employees and Moving Picture Machine
Operators, AFL-CIO (IATSE), but terminated this
allegiance in 1958, thereafter negotiating as an
independent union.
In January 1975, the Employer purchased an
Ikegami miniature electronic camerae and related
electronic news-gathering (ENG) system components
for use in a news-gathering capacity. At the time of
this purchase, both Unions asserted jurisdiction over
operation of this equipment. The Employer, after
evaluating the relevant factors, concluded that the
news cameramen represented by the Guild were
entitled to the work; maintenance of the ENG
equipment was given to the technicians represented
by IBEW Local 292.
In early February 1975, two technicians represent-
ed by IBEW Local 292 filed grievances under their
Union's contract with the Employer over the assign-
ment of the operation of the ENG system; the
grievances proceeded through arbitration and, on
May 12, 1976, the arbitrators awarded the disputed
work to the technicians. Photo-News Guild, appar-
ently not then formally organized, was not a party to
the arbitration proceedings, though Employer raised
the issue of the interest of those employees to whom
the January 1975 work assignment had been made.
Photo-News Guild responded to the arbitration
award in early June 1976, threatening to take such
economic action as was deemed necessary to protect
the assignment of the operation of the ENG system to
227 NLRB No. 261
PHOTO-NEWS GUILD 1797
the news cameramen. This prompted the Employer to
file the instant charge against the Guild in early July.2
B. The Work in Dispute
The work in dispute involves the use and operation
of the ENG system for news-gathering purposes,
including the editing of videotape, by employees of
WCCO-TV. The equipment involved is the Ikegami
miniature electronic camera, accompanying video-
tape recorder, backpack, and 13 gigihertz microwave
transmitter, as well as the electronic editing equip-
ment.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should continue to be assigned to employees repre-
sented by Photo-News Guild, as does the Guild. Both
contend that the arbitration award does not consti-
tute a voluntary method of adjustment, as the Guild
was not a party to the proceedings, and therefore is
not entitled to any weight. Both stress the great
experience of the news cameramen in the gathering of
news with film cameras, and view this dispute as
primarily involving the replacement of film cameras
with ENG systems. IBEW Local 292 contends that
the dispute is essentially over the use of an electronic
camera, that this work is covered by the jurisdiction
clause of its agreement with the Employer, and that
the arbitration award confirms this.
D. Applicability 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 there is reasonable cause
to believe that Section 8(b)(4)(D ) has been violated
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
William Hechter , counsel for Photo-News Guild,
wrote the Employer on June 3 , 1976, informing the
Employer that the Guild would take such economic
action as necessary to defend its claim to the work
should the Employer decide to reassign the work in
light of the arbitration award.
IBEW Local 292 contends that the grievance-
arbitration procedure provided for by its agreement
with the Employer constitutes a voluntary method for
adjustment of the dispute . It is a necessary prerequi-
site to any such finding by the Board that there exists
a voluntary method of adjustment to which all parties
agree to be bound .3 Since Photo-News Guild was not
a party to the arbitration proceedings , the arbitration
2 In a state court action brought at that time by Local 292 to confirm the
arbitration award , Employer's motion to defer ruling until the Board has
acted was granted, and the state courtjudge ordered that Photo-News Guild
be joined as a party
award cannot be considered as an adjustment of this
dispute.
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k) of
the Act. Accordingly, we find this dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors.
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
IBEW Local 292, unlike the Guild, has a written
collective-bargaining agreement with the Employer.
The agreement's jurisdiction clause covers all work in
connection with the transmission or transference of
voice, sound, and/or video image by electronic
means. IBEW Local 292 contends that this broad
clause gives its member technicians jurisdiction over
the disputed work. However, this agreement also
contains the following exception in article XXIII,
section 1:
Article III of this Agreement shall not apply to:
1. The activities necessary and incidental to
the producing, filming and processing of
silent and sound movies, and still pictures,
including the right to preview, edit and
assemble films for projection into the televi-
sion camera.
Both the IBEW Local 292 jurisdiction clause and the
exception have undergone only minor changes since
the news cameramen's original organization 20 years
ago as an IATSE affiliate. The jurisdiction as
contained in the 1957 IATSE agreement was "[em-
ployees] engaged primarily in the production of still
and motion picture film for television news purpos-
es." The Guild argues that since IBEW Local 292
never altered its agreement nor challenged the
jurisdiction of the news cameramen in the coverage of
news events, this constitutes an implicit recognition
on the part of IBEW Local 292 that news gathering
was not within the scope of its agreement, and that
the parties have both orally and by their actions
3 N.L.R.B. v. Plasterers Local Union No. 79, Operative Plasterers' and
Cement Masons' International Association, AFL-CIO [Texas State Tile &
Terrazzo Co.], 404 U.S. 116 (1971).
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed that news gathering and editing belongs to
news cameramen.
While the contract between the Employer and
IBEW Local 292 literally encompasses the operation
of all electronic equipment, it cannot be given a strict
interpretation since IBEW Local 292 technicians
have not operated nor claimed jurisdiction over every
piece of electronic equipment, and have never
claimed jurisdiction over the news-gathering func-
tion. We conclude that this factor, if relevant at all,
favors the news cameramen represented by the Guild,
since the parties have considered the news-gathering
function to be outside of IBEW Local 292's jurisdic-
tion.
2. Industry and area practice
The three national networks (ABC, CBS, NBC)
have all utilized the minicam for news-gathering
purposes ; at the national network stations the mini-
cam has been assigned to employees of an engineer-
ing unit . On the other hand, several independent and
affiliated stations throughout the country, including
the Employer 's major competitor in the Minneapolis-
St. Paul metropolitan area, have assigned this work to
news cameramen . As yet, no clear pattern can be
discerned , and we find this factor to be of little help in
this proceeding.
3. Relative skills
The Employer and Photo-News Guild contend that
the skills of a photojournalist are required to use the
minicam in the news-gathering function, and that
only employees represented by the Guild possess
these requisite skills. IBEW Local 292 disagrees,
minimizing the importance of the creative and artistic
aspects of the disputed work, especially since a
reporter is often assigned to cover the event with the
news cameramen , and arguing that the news camera-
man normally relies on the reporter's direction and
expertise in deciding how to film the story. IBEW
Local 292 stresses the fact that its technicians have
long used electronic cameras.
The news-gathering function involved in this dis-
pute requires special artistic skills. The news camera-
man is required to make independent judgments
about lighting, picture quality and composition, and
screening direction, in conjunction with editing in the
camera to reduce the amount of time required to put
the story on the air. Although often working with a
reporter, the cameraman spends considerable time
4 IBEW Local 292 relies on Stage Employees Local One, IA TSE, AFL_
CIO, Theatrical Protective Union (RKO General, WOR-TV Division), 219
NLRB 1165, 1172 (1975), to support the technicians claim to the work In
WOR-TV the station 's news department was only 4 years old when the
minicam was introduced ; during this period, both engineers and news
shooting stories on his own or becomes separated
from the reporter and must make the aforementioned
decisions. He is also required to independently
evaluate whether an event is newsworthy and to
continuously use his artistic talents in deciding how a
news event can best be recorded for later viewing.
The photojournalistic skills obviously take prece-
dence over the mechanical skills necessary to operate
the camera; mechanical operation can be learned in a
very short period of time, whereas it could take an
employee a considerable length of time, perhaps even
years, to acquire the necessary photojournalistic
skills.
We conclude that this factor favors assignment of
the disputed work to employees represented by
Photo-News Guild. The technicians represented by
IBEW Local 292 have, whether in the studio or out
on a remote location, traditionally functioned under
the guidance and direction of an entire production
crew, whereas the news cameramen represented by
Photo-News Guild have demonstrated that they can
work independently and possess the necessary photo-
journalistic skills required to gather news with film;
these skills were easily transferred to working with the
minicam.4
4. Economy and efficiency of operation
The Employer argues that there is a greater
efficiency of operation with the current assignment of
the disputed work to news cameramen than would
exist if IBEW Local 292 technicians were to receive
the assignment. The record reveals that news camera-
men presently have the skills to operate either a film
camera or the minicam in the news-gathering func-
tion, and may use both during the course of a day.
IBEW Local 292 technicians have not used film
cameras. When the minicam malfunctions, a news
cameraman can revert to the use of a film camera; a
technician cannot. We conclude that this factor
favors assignment of the work in dispute to the
employees represented by Photo-News Guild.
5. Employer's assignment
The Employer assigned the work in dispute to, and
prefers that it be performed by, news cameramen
represented by Photo-News Guild; this factor favors
an award to those employees.
cameramen had gathered news. As both groups possessed relatively equal
photojournalistic skill, the engineers' experience with electronic cameras was
decisive in judging the employees ' relative skills. In the present dispute, the
news-gathering function has been performed exclusively by the news
cameramen for over 20 years.
PHOTO-NEWS GUILD 1799
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors, as noted above, we
conclude that employees who are represented by
Photo-News Guild are entitled to perform the work in
dispute. Accordingly, we shall award the work in
dispute to news cameramen represented by Photo-
News Guild, but not to that Union or its members.
The present determination is limited to the particular
controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
foregoing fmdings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
News cameramen employed by the Employer,
Midwest Radio-Television, Inc., d/b/a WCCO-TV,
Minneapolis , Minnesota, and represented by Photo-
News Guild, are entitled to the use and operation of
the electronic news-gathering system , including the
miniature electronic camera , videotape recorders and
editing devices , and 13 gigihertz microwave transmit-
ter, for news-gathering purposes.
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the