Radio & Television Broadcast Engineers Union

National Labor Relations Board - Board Decisions

Dec 14, 1955

114 N.L.R.B. 1354 (N.L.R.B. 1955)

1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All boilerroom employees at the Employer's Morris Plains, New
Jersey, plant, including full-time firemen and boilerroom helper, but
excluding relief fireman, all other employees, and supervisors as defined
in the Act.
5. If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and the
Regional Director conducting the election directed herein is instructed
to issue a certification of representatives to the Petitioner for the unit
described in paragraph numbered 4, which the Board, under such
circumstances, finds to be appropriate for purposes of collective bar-
gaining. In the event a majority vote for the Intervenor, the Board
finds the existing unit to be appropriate and the Regional Director
will issue a certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Direction of Election.
Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO 1
and Columbia Broadcasting System , Inc. Case No.. -CD12.
December 14, 1955
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph 4 (D) of Sec-
tion 8 (b), the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen. . . ."
On April 18, 1955, Columbia Broadcasting System, Inc., herein
called CBS or Employer, filed with the Regional Director for the Sec-
ond Region a charge against Radio & Television Broadcast Engineers
Union, Local 1212, International Brotherhood of Electrical Workers,
AFL-CIO, herein called IBEW or Respondent, alleging that the lat-
ter had engaged in and was engaging in certain activities proscribed
by Section 8 (b) (4) (D) of the amended Act. It was charged, in sub-
stance, that IBEW hadinduced and encouraged employees of CBS to
engage in a strike or a concerted refusal to work in the course of their
employment with an object of forcing or requiring CBS to assign par-
1 The AFL and CIO having merged, we are amending the identification of the Unions
affiliations.
114 NLRB No. 209.
RADIO & TELEVISION BROADCAST ENGINEERS UNION 1355
titular work to employees who are members of IBEW rather than to
employees who are members of Local 644, International Photogra-
phers of the Motion Picture Industries and its parent organization,
International Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of United States and Canada, AFL-CIO,
herein called IATSE.
Pursuant to Sections 102.71 and 102.72 of the Board's Rules and
Regulations, the Regional Director investigated the charge and pro-
vided for an appropriate hearing upon due notice to all parties. The
hearing was held before I. L. Broadwin, hearing officer, on June 24,
1955. The hearing officer permitted IATSE to intervene on the basis
of its claim to jurisdiction over the work tasks involved herein and its
contract with CBS. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The rulings
of the hearing officer made at the hearing are free from prejudicial er-
ror and are hereby affirmed. All parties were afforded opportunity to
argue orally before the hearing officer. IBEW and CBS filed briefs
with the Board.
Upon the entire record in the case, the Board finds :
1. CBS is engaged in commerce within the meaning of the Act.
2. IBEW and IATSE are labor organizations within the meaning
of the Act.
3. The dispute :
The Facts
1. Background
CBS is engaged in television broadcasting. In 1946 it recognized
IBEW as the bargaining representative of all CBS technicians in, and
outside of, New York City, including motion picture film cameramen
employed by CBS in New York City only. On February 14, 1952, fol-
lowing a Board-directed election, IBEW was certified as representa-
tive of CBS technicians in New York City, including motion picture
cameramen, film editors, and cutters. On May 1, 1952, CBS and
IBEW executed a 2-year collective-bargaining agreement containing
the following provision :
Section 1.04. Jurisdiction. The work covered by this Agree-
ment shall include all the following work :
(a) . . . installation . . . operation, maintenance and repair
of radio broadcast, television, facsimile and audio equipment and
apparatus . . . including all types of recording on disc, wire,
tape, kinescope, or television recording and/or any other means
or recording which may supplant, substitute for or augment the
foregoing . . . provided, however, that nothing contained in this
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section shall be construed as either an affirmative grant of, or
denial of jurisdiction over the work of operating motion picture
cameras outside of New York City, since jurisdiction over that
work has not been clarified by the NLRB.
During the term of this contract, CBS changed its practice with
respect to newsfilm used on its television programs. Before 1953,
CBS had purchased most of its newsfilm from another company. It
also used some of its own employees to do a small amount of news-
film and special camera work. The CBS cameramen for this limited
photography work were administratively assigned to the film serv-
ice section of the CBS operations department and were represented
by IBEW. In 1953, CBS discontinued its purchases of newsfilm and
commenced shooting its own news pictures. It set up a newsfilm sec-
tion of its news and public affairs department, and transferred tech-
nicians with camera experience from the film service section to the
newsfilm section.
On April 28, 1954, IATSE filed a representation petition seeking
severance of the Employer's employees principally employed as motion
picture film photographers from the existing technicians unit repre-
sented by IBEW. During the pendency of the petition, CBS and
IBEW entered into their current bargaining agreement which runs
from May 1954 to April 1956 and contains the following provisions :
Section 1.04. Jurisdiction. The work covered by this Agree-
ment shall include all of the following work :
(a) . . . installation . . . operation, maintenance and repair
of radio broadcast, television, sound effects, facsimile and audio
equipment and apparatus . . . and all types of recording on disc,
wire, video tape, audio tape, kinescope or television recording
and/or any other means of recording which may supplant, sub-
stitute for or augment the foregoing (subject to the special pro-
visions relating to motion picture film hereinafter set forth).
(e) With respect to the work of editing, cutting and/or splic-
ing of motion picture film :
(i) Where such work is performed by technicians em-
ployed on the New York staff, said work is included in the
jurisdiction herein. For the purposes of this Agreement,
such jurisdiction also includes those other duties performed
by technicians employed in the "Film Service Operations
Department," insofar as said duties are included in the work
jurisdiction described in this Section 1.04.
'(f) With respect to the work of shooting motion picture film
... jurisdiction with respect to the work of those employees on
RADIO & TELEVISION BROADCAST ENGINEERS UNION 1357
the New York'staff who are principally employed as motion
picture cameramen . . . is neither granted or denied herein, pend-
ing final determination of the current representation proceeding
involving such employees.
(g) Nothing in this Agreement is to be construed as either
granting or denying jurisdiction over the work of shooting mo-
tion picture film, . .. where such work is performed outside of
New York City.
The Board issued its decision on the IATSE petition for camera-
men on December 22,1954.1 The Board found that the unit requested,
and appropriate for severance, was one limited to six cameramen in
the newsfilm section who were "responsible for providing the Em-
ployer with motion picture and sound coverage of important news
events occurring within a 200-mile radius of New York City." The
Board excluded from the unit certain technicians who performed
camera work in the film service section which was "not of the news-
reel type and . . . sporadic." The appropriate unit was described as:
All motion picture film cameramen who shoot motion pictures
and perform any lighting and/or recording of sound incidental
thereto, excluding all other employees, guards, and supervisors
within the meaning of the Act.
On February 1, 1955, the Board, on its own motion, amended the unit
to read :
All employees of the Employer in-the newsfilm section of the
News and Public Affairs Department of the Employer's Televi-
sion Division in New York City engaged principally as motion
picture film cameramen who shoot motion pictures and perform
any lighting and/or recording of sound incidental thereto, ex_'
eluding all other employees, guards, and supervisors within the
meaning of the Act.
IATSE thereafter won the election and was certified as bargaining
representative for the CBS employees in the unit found appropriate.
CBS signed a collective-bargaining agreement with IATSE on April
11, 1955, covering all its motion picture cameramen in the United
States and Canada, and containing this provision :
2. Trade Jurisdiction: This agreement applies to motion pic-
ture film cameramen, soundmen and electricians employed by the
Company in the shooting of motion picture film . . . whether
such motion picture films be newsreels, documentaries, commer-
cials, productions, titles, animations, inserts, or any variations
thereof.
S Columbia Broadcasting System, Inc., 110 NLRB 2108.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the time of the Board 's decision on the IATSE petition in
December 1954 to the time of the hearing herein in June 1955, CBS
employees in the newsfilm section represented by IATSE have done
all the Employer's motion picture photographic work.
2. The events on which the charge is based
In March 1955 the film service section received a request for a short
film sequence to be used as an introduction to one of the Employer's
"Mama" programs. The scene was then filmed by a member of IATSE
who worked out of the newsfilm section. The film was developed and
printed and returned to the production supervisor in the film service
section. In line with customary practice, the production supervisor
took the film to an IBEW projectionist for runoff and checking. The
projectionist refused. to run the film. The parties stipulated at the
hearing that "Charles A. Calame, business manager of Local 1212,
IBEW, directed the technicians who were members of said Local 1212
not to handle the `Mama' clip, which is the subject of this proceeding,
because he believed the IBEW is legally entitled to jurisdiction over
the work."
Contentions of the Parties
CBS asserts that an employer's assignment of work can be limited
only by a Board certification or by a. contract provision, and that in
this case neither type of limitation exists in favor of IBEW.' CBS
contends that the IBEW work stoppage was intended to cause assign-
ment of film work to IBEW members rather than to members of
IATSE and that IBEW thereby violated Section 8 (b) (4) (D).
IATSE contends that it is entitled to the disputed work under the
terms of its April 1955 collective-bargaining contract with CBS which
was reached after a Board certification of representatives and that the
Board may not, under Sections 8 (b) (4) (D) or 10 (k), or otherwise,
set aside or diminish the scope of its contractual work jurisdiction.
IBEW asserts that it was certified as bargaining representative of
all New York City CBS technicians in 1952 and obtained jurisdiction
over all their work in the 1952 contract; that its 1954 contract with-
held jurisdiction only over the camera work of CBS employees who
spend a majority of their time shooting newsfilm, not over that of
technicians who spend only a small proportion of their time doing
camera work; that the Board 1955 certification of IATSE, as
3 CBS also argues that it was entitled to assign the disputed camera work to IATSE
because CBS follows a general practice of giving camera work to IATSE in all areas out-
side of New York City and because assignment of the New York City film shooting to
IBEW would be uneconomical and impractical . As such contentions are relevant only in
cases where the contractual rights of rival unions do not cover disputed work and as the
following resolution of the dispute in this case is based upon a determination of con-
tractual rights, these CBS contentions are not material to the issue.
RADIO & TELEVISION BROADCAST ENGINEERS UNION 1359
amended, specifically excluded the latter technicians; that, as the
work of shooting film inserts (like the "Mama" clip) belongs to tech-
nicians other than "full-time" cameramen, it remained within the
IBEW's jurisdiction; and that, as it was thus entitled to the disputed
"Mama" assignment, its "strike" did not violate Section 8 (b) (4) (D).
Applicability of the Statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act and the Re-
gional Director was satisfied upon the basis of such investigation that
there was reasonable cause to believe that a violation of Section 8 (b)
(4) (D) of the Act had been committed.
The record before us establishes that there is reasonable cause to
believe that IBEW induced and encouraged employees of CBS to
engage in a concerted refusal to perform services in order to force or
require CBS to assign certain camera film shooting work to members
of IBEW although CBS had assigned this work to employees who
are members of IATSE. The Board has held that such circumstances
are sufficient to invoke the Board's jurisdiction to hear and determine
a dispute within the meaning of Sections 8 (b) (4) (D) and 10 (k) of
the Act .4 We find, therefore, that the dispute in question is properly
before us for determination under Section 10 (k) of the Act.
The Merits of the Dispute
The Board has held that a labor organization does not violate
Section 8 (b) (4) (D) of the Act by engaging in activity otherwise
proscribed, if an employer's assignment of work is in derogation of
a Board order or certification 5 or of a collective-bargaining contract
which assigns particular work to the striking labor organization.6 In
this case IBEW asserts that it retained jurisdiction over the disputed
camera work under the terms of its collective-bargaining agreement
with CBS. If IBEW was contractually entitled to perform the dis-
puted work, it has not committed a violation of Section 8 (b) (4)
(D) by striking to compel CBS to live up to its agreement.
It is undisputed that the contract executed by IBEW and CBS in
1952 placed all the employees' camera work within the exclusive juris-
diction of IBEW. The clause granting such exclusive jurisdiction
was 1.04 (a) set forth above. The 1954 contract between IBEW and
CBS contained a practically identical section 1.04 (a), except that
the 1954 agreement made this grant of work jurisdiction "subject to
4 Local 26 , International Fur and Leather Workers Union of the United States and
Canada ( Winslow Bros . & Smith Co ), 90 NLRB 1379.
B The proviso contained in Section 8 (b) (4) (D) expressly permits activities otherwise
proscribed if the "employer is failing to conform to an order or certification of the Board
determining the bargaining representative for employees performing such work."
oNattional Association of Broadcast Engineers and Technicians, C. I. 0., Hollywood
Chapter ( Nationa l Broadcasting Company, Inc .), 105 NLRB 355.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the special provisions relating to motion picture films hereinafter,
set forth."
One such special provision is contained in section 1.04 (e) (i).
That provision expressly continued in IBEW's favor "the work of edit-
ing, cutting and/or splicing of motion picture film . . . where .. .
performed by technicians on the New York Staff . . . [and] .. .
.those other duties performed by technicians employed in the `Film
Service Operations Department' insofar as said duties are included in
the work jurisdiction described in this section 1.04." It is undisputed
that at the time IBEW and CBS initially agreed upon the work juris-
diction coverage of section 1.04 "technicians employed in the `Film
Service Operations Department"' included among their duties a cer-
tain amount of motion picture film shooting work.
A second special provision appears in section 1.04 (f) of the 1954
agreement. That clause provides that "With respect to the work of
shooting motion picture film . . . jurisdiction with respect to the
work of those employees on the New York staff who are principally
employed as motion picture cameramen . . . is neither granted nor
denied herein, pending final determination of the current representa-
tion proceeding involving such employees." The representation pro-
ceeding mentioned was the one upon the IATSE petition, filed in
April 1954. The Board decision' therein noted that "None of the
parties contended that these technicians should be included in the
unit." The technicians referred to were 9 individuals in the film
service section of the CBS New York staff who "spent an average of
5.3 percent of their time performing" sporadic camera work "not of
the newsreel type." Thus, section 1.04 (f) of the 1954 contract with-
drew certain work from IBEW's exclusive work jurisdiction. The
withdrawn work involved the photographing of "important news
events occurring within a 200-mile radius of New York City" by the
6 individuals "principally employed as motion picture cameramen"
'who were the subject of the "representation proceeding" instituted by
IATSE. However, it is manifest that the 1954 representation pro-
ceeding had no effect on the work of any other CBS employee and
that section 1.04 (f) did not withdraw from IBEW's jurisdiction the
sporadic nonnewsreel photography performed by the technicians who
remained in the Employer's film service section. The disputed work
involved in this case was the film shooting of the "Mama" clip. Such
film shooting fits into the classification of sporadic nonnewsreel camera
work performed by the, technicians in the film service section.
Thus, reference to the 1954 agreement between IBEW and CBS
establishes that it provided, in unambiguous terms, for coverage of
the work which is the subject of the dispute in this case. Indeed, the
7 Columbia Broadcasting System, Inc., supra.
RADIO & TELEVISION i BROADCAST ENGINEERS UNION 1361
Employer 's argument that it was under no contractual obligation to
assign the disputed work to IBEW is based upon a bare , unsupported
assertion that no provision in the 1954 contract reserved to IBEW
jurisdiction over camera shooting work."
We also find no merit in the argument IATSE advances with re-
spect to the disputed work, namely , that its April 1955 agreement
with CBS gave IATSE jurisdiction over the work . Such a con-
tractual arrangement is immaterial to the issue of this case because
it was entered into by CBS after it executed the 1954 agreement with
IBEW and at a time when the IBEW agreement was valid and effec-
tive . To the extent material herein, the IATSE contract infringed
upon the IBEW 1954 agreement with CBS.
As IBEW's 1954 contract with CBS established a valid prior claim
to the work here in dispute, we find that the CBS assignment of the
film shooting of the "Mama" clip to IATSE members was in deroga-
tion of the IBEW 's contractual work jurisdiction . Accordingly, we
further find that the IBEW's strike for the disputed work was not un-
lawful.
Determination of Dispute
On the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following determination of
dispute pursuant to Section 10 (k) of the amended Act:
The film shooting of the "Mama" clip and other such motion picture
film shooting work is covered by the agreement in existence between
Columbia Broadcasting System, Inc., and Radio & Television Broad-
cast Engineers Union, Local 1212, International Brotherhood of Elec-
trical Workers, AFL-CIO; and the agreement between Columbia
Broadcasting System, Inc., and Local 644, International Photogra-
phers of the Motion Picture Industries and its parent organization, In-
ternational Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of United States and Canada, AFL-CIO,
has not divested Radio & Television Broadcast Engineers Union,
Local 1212, International Brotherhood of Electrical Workers, AFL-
CIO, of the right to such work.
CHAIRMAN LEEDOM, dissenting :
I would find that the work here in dispute is not covered by the
existing agreement between the Employer and the Respondent, and
that the Respondent is therefore not entitled to such work, assuming
without deciding that a clear contractual assignment of the work to
8 CBS did offer more particularized argument in support of its contention , but that
argument was based upon oral testimony pertaining to the negotiations which culminated
in execution of the 1954 contract As the contract upon its face is clear and unambiguous,
such oral testimony is not properly before the Board for consideration.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, would constitute a defense, in this proceeding, a question
not reached in my view of the case.
I do not find that the contract here involved unambiguously assigns-
the disputed work. That work is the operation of motion picture
cameras in connection with the production of films other than news-
reels. Until December 1954, this work was performed by techni-
cians included in a unit certified to the Respondent. After the Board
in December 1954 severed from that unit 6 newsfilm cameramen and
certified them to IATSE (the Intervenor herein), the disputed work
was assigned to those 6 cameramen rather than to the Respondent's
technicians who had formerly performed it. It was this change in as-
signment that gave rise to the instant dispute.
In my opinion nothing in the Respondent's contract clearly pre-
cluded this change in assignment. Section 1.04 (a) of that contract
granted to the Respondent jurisdiction over various categories of work,
which maybe construed to include the disputed work, but it is provided
therein that such grant is "subject to the special provisions relating
to motion picture film hereinafter set forth." The only relevant
"special provisions" would seem to be section 1.04 (e) (i) and 1.04 (f).
The former provision gives the Respondent jurisdiction over any
"duties performed by technicians employed in the `Film Service Opera-
tions Department' insofar as said duties are included in the work juris-
diction described in this section 1.04." But for this italicized language,
I would agree that the contract is sufficiently clear that the parties
intended that the Respondent retain jurisdiction over the disputed
work, as such work was included in the duties being performed by the
technicians in the film service operations department when the con-
tract was executed. However, as the italicized language excepts in
effect, from this grant of jurisdiction any duties not included in "the
work jurisdiction described in section 1.04," one has to look elsewhere
in the contract to see if there is any exclusion of the disputed work from
such work jurisdiction. Section 1.04 (f) provides that "jurisdiction
with respect to the work of those employees on the New York staff
who are primarily employed as motion picture cameramen" (i. e., the
newsfilm men) is withheld pending Board action on the then current
IATSE petition.
Had the foregoing provision expressly stated that jurisdiction over
only the work then being performed by the newsfilm employees was
withheld, it would seem proper to infer that it was intended that all
other camera work, including the disputed work, be retained by the
Respondent. The language, however, is not so clear but may reason-
ably be construed to refer either to work then being performed by
the newsfilm men or to any work which might at any time be assigned
to them. If the latter was intended, that would leave the Employer
free to assign the disputed work to the newsfilm men.
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 1363
In view of this ambiguity, it seems to me permissible to resort to
parol evidence as to the meaning of the foregoing contract provisions.
Such evidence seems to support a finding either that the parties failed
to agree that the disputed work should be assigned to the Respondent,
or that they did not intend such assignment. In either case , I would
find that there was no contractual assignment to the Respondent and
that the Respondent was, therefore, not entitled to the disputed work.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Determination of Dispute.
Pinkerton's National Detective Agency, Inc. and Yonkers Uni-
formed Guards and Protective Association, Local 1 . Case No.
2-RC-7360. December 14, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, an original hearing was held in the present case
on April 14 and May 9, 1955, before I. L. Broadwnl, hearing officer.
At this hearing,' Building Service Employees International Union
Local 32, herein called the Intervenor, was permitted to intervene
in order to contest the Petitioner's claim that the Board should assert
jurisdiction over the operations involved herein. The Intervenors
offer of proof with respect to jurisdiction was rejected by the hearing
officer upon the ground that the prior decision was res ad,judicata,on
the issue of jurisdiction. Upon consideration of this platter, the
Board remanded the case for further evidence, inter alia,' upon the
Intervenor's offer of proof concerning jurisdiction. Thereafter, a
reopened hearing was held before the hearing officer on September
12 and 13, 1955. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Both the
Intervenor and the Petitioner filed original and supplemental briefs,
all of which have been fully considered by the Board. Upon the
entire record in the case, the Board has decided, for reasons herein-
after set forth, that it will not assert jurisdiction over the particular
operations involved herein.
I The present case arose upon the Board's dismissal of a prior proceeding brought by a
predecessor in interest of the Petitioner and dismissed by the Board because the unit
sought therein was mappiopriite see Pin/c)ton's National Detectise igenry, 111
NLRC 504
2The remand also sought further evidence upon the functions and duties of an usher,
one of the employee classifications mi olved hen ern In i iew of our pi esent decision on
the issue of jurisdiction , we find it unnecessary to consider any issue relating to the
appropriateness of the unit sought.
114 NLRB No 215.
387644-56-vol 114-87