Stage Employees, Local No. 659

National Labor Relations Board - Board Decisions

Feb 20, 1976

222 N.L.R.B. 1004 (N.L.R.B. 1976)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Alliance of Theatrical, Stage Employees
and Moving Picture Machine Operators , Local No.
659 and Westinghouse Broadcasting Company, Inc.
and International Brotherhood of Electrical Work-
ers, Local No. 202. Case 20-CD-466
February 20, 1976
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the labor
organizations involved are labor organizations within
the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS FANNING, PENELLO, AND WALTHER
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by the Employer, Westinghouse
Broadcasting Company, Inc., alleging that Interna-
tional Alliance of Theatrical, Stage Employees and
Moving Picture Machine Operators, Local No. 659,
herein IATSE Local 659, had violated Section
8(b)(4)(D) of the Act. A hearing was held on various
dates from September 23 to November 13, 1975, be-
fore Hearing Officer Johnathan J. Seagle. All parties
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the is-
sues. Thereafter, the parties filed briefs in support of
their respective positions.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error. They are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Westinghouse Broadcasting Company, Inc., is an
Indiana corporation with headquarters in New York
City and a television broadcasting station,
KPIX-TV, in San Francisco, California. During
1974 the Employer received gross revenues in excess
of $500,000 from the operation of KPIX, which re-
ceived goods valued in excess of $10,000 from out-
side California.
We find that the Employer is engaged in com-
merce or in an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act and
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer's engineering technicians are repre-
sented by International Brotherhood of Electrical
Workers, Local No. 202, herein IBEW Local 202, its
news cameramen by IATSE Local 659. On January
8, 1974, IBEW Local 202 entered into a supplemental
agreement with the Employer for the term of their
current contract permitting the Employer "to experi-
ment without restrictions the use of the Video Tape
Back Pack Recording Cameras as a replacement for
film cameras." Following that agreement, portable
electronic miniature cameras were rented and used
on various occasions by both engineering technicians
represented by the IBEW and news cameramen rep-
resented by IATSE. A second supplemental agree-
ment providing that use of these miniature cameras
for recorded field programming would not be within
IBEW jurisdiction was signed by the same parties on
December 23, 1974.
The Employer purchased a miniature camera, in-
cluding a backpack and recorder, in June 1975 and
assigned it to news cameramen represented by
IATSE for use in news gathering. IBEW Local 202
filed a grievance with the Employer over that assign-
ment, and IATSE Local 659 responded to protect its
claim, leading the Employer to file charges alleging
that Local 659 had violated Section 8(b)(4)(D) of the
Act.
B. The Work in Dispute
The work in dispute is the use and operations of
miniature or portable electronic cameras and video-
tape recorders for news-gathering purposes by em-
ployees of Westinghouse Broadcasting Co., Inc., at
KPIX-TV.
All parties agree that the operation of the equip-
ment for "remote" coverage is not in dispute. A "re-
mote" is generally defined as the preplanned televis-
ing or recording of a particular event for which the
studio is, in effect, moved to the location of the
event. A "remote," as we understand it, does not in-
clude coverage of an event by a news cameraman
working independently or with a reporter.
222 NLRB No. 161
STAGE EMPLOYEES, LOCAL NO. 659 1005
C. Contentions-of the Parties
The Employer contends that the work in dispute
should be assigned to employees represented by
IATSE Local 659,. as does that Local. The Employer
also urges that the Board determine an alleged dis-
pute involving the operation of the same type of
equipment by its cinematographers. IBEW Local 202
argues that the work in dispute should be assigned to
engineering technicians whom it represents.
Each party asserts that the criteria traditionally
used by the Board in determining work disputes re-
quire that the determination be made in accordance
with its position. However, the Employer and IATSE
on one side, and the IBEW on the other, stress differ-
ent aspects of the work. The IBEW considers the dis-
pute essentially to be over the use of electronic cam-
eras. The Employer and IATSE view it primarily as a
dispute over news gathering employing a replace-
ment for film cameras.
D. Applicability of the Statute
The charge alleges IATSE Local 659 violated Sec-
tion 8(b)(4)(D) of the Act by threatening economic
action against the Employer to force a work assign-
ment to employees it represents rather than to those
represented by the IBEW.
Gerald Smith, Local 659 business representative,
wrote the Employer on July 3, 1975, in response to a
grievance filed by the IBEW over the work in dis-
pute, that the Local was "prepared to take such ac-
tion as we deem necessary to protect the working
opportunities of our crews working at KPIX." In a
subsequent phone conversation, on July 9, 1975,
Smith defined "necessary action" to include econom-
ic action.
The Board's jurisdiction under Section 10(k) of the
Act attaches when there is reasonable cause to be-
lieve Section 8(b)(4)(D) has been violated. Based on
the entire record, we conclude that there is reason-
able cause to believe that that section has been vio-
lated and that the dispute is properly before the
Board for determination.'
E. Merits of the Dispute
1. Board certification
IATSE Local 659 was certified on March 25, 1964,
as the exclusive representative of "all newsroom per-
sonnel employed by the Company at KPIX as news-
reel photographers cameramen; but excluding all
other employees, guards and supervisors as defined
in the Act" in Case 20-RC-5780. That unit was sti-
pulated by the parties and did not involve an inde-
pendent determination by the Board. Moreover, the
certification is for a unit of "newsreel photographers
cameramen" and long predates the introduction of
practical portable electronic cameras in common use.
IBEW Local 202 has not been certified by the
Board as a representative of - any unit of the
Employer's employees.
We conclude that this factor has little value in de-
termining the merits of the dispute.
2. Collective-bargaining agreements
Before 1973 the Employer in its collective-bargain-
ing agreement with IATSE Local 659 recognized it in
the language of the ' certification as the representative
of "newsreel photographers cameramen." However,
in the current agreement, 1973 to 1976, Local 659 is
recognized as the representative of "the news cam-
eramen." Local 659's business representative, Smith,
testified that the change was intended to recognize
changes in technology, including the use of the
"mini-cam." Article VII of both the current agree-
ment and its predecessor defines "trade jurisdiction"
as "handling the optical and audio in connection
with making motion picture news film, or substitutes
therefore [sic], both silent and sound."
In its current agreement with IBEW Local 202, the
Employer recognizes it as the representative of "all
floormen and technicians." The contract, section 6
A, provides that only technicians shall operate the
Employer's technical equipment described in Section
5 B, which defines "technician" in terms of the oper-
ation of certain electronic equipment that reasonably
can be said to include portable electronic cameras.
However, there is some doubt, at the least, about the
applicability of section 6 A in this proceeding. Sec-
tion 6 defines the agreement's jurisdiction as "the
studios (including audience areas), transmitter site
and remote locations originating television programs
produced and controlled by KPIX ...." The work
in dispute 2 is not performed in any of the defined
areas. But we need not pursue that further because
we conclude that the IBEW agreed to relinquish any
i Contrary to the Employer , we find there is no issue properly before the
Board in this proceeding relating to any dispute between the Employer's
cinematographers and IBEW Local 202. There is no charge outstanding
against any party to that alleged dispute; and in the absence of an appropri-
ate charge the Board lacks jurisdiction to determine work disputes under
Sec. 10(k) of the Act.
2 Work performed at "remotes" is not in dispute in this proceeding.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract claim it may have had.
On December 23, 1974, IBEW Local 202 and the
Employer signed an agreement, effective from that
date, that "at such time as the Station puts into ser-
vice, equipment which includes: Mini-Cam camera,
Back Pack and accessories, the operations of Mini-
Cam components will not come under the jurisdic-
tion of IBEW for recorded field programming."
IBEW -Local 202 contends that this agreement was
intended to apply only to experimental use of the
equipment. However, the agreement is clear and un-
ambiguous on its face; under no reasonable interpre-
tation can putting "into service" be equated with ex-
perimental use, particularly as the January 8, 1974,
agreement between the Employer and IBEW Local
202 already permitted the Employer to assign the op-
eration of miniature cameras to employees outside
IBEW Local 202's unit for experimental purposes.
We conclude that this factor favors an award of
the work in dispute to news cameramen represented
by IATSE Local 659. The contract between the
Union and the Employer clearly comprehends the
assignment to news cameramen of work in connec-
tion with making news film or its substitutes. The
work in dispute here, however narrowly defined and
whatever else it may also be, is, undeniably, a substi-
tute for news film. Conversely, even if the work in
dispute is comprehended by the jurisdictional clause
of IBEW Local 202's agreement, that Local entered
into an agreement waiving that claim.
3. Employer's assignment
The Employer assigned the work in dispute to, and
prefers that it be performed by, news cameramen
represented by IATSE, which favors an award to
those same employees.
4. Employer, area, and industry practice
This proceeding arises from the Employer' s initial
assignment of the work in dispute. Strictly construed,
there is no Employer practice.'
3 The IBEW argues that a determination by Impartial Umpire David L.
Cole pursuant to sec. 3, art. XX, of the AFL-CIO Constitution that it has an
"established work relationship" with the Employer involving the work in
dispute favors an assignment to the engineering technicians it represents.
There is no contention that Umpire Cole's determination, in which the Em-
ployer did not participate and which was not decided on the criteria the
Board relies upon in 10(k) proceedings , is binding upon the Board. That
determination was decided on the ground that IBEW members had operat-
ed electronic cameras outside the studio in the past and that IATSE mem-
bers had not. We do not quarrel with that conclusion , but in our judgment
it does not establish any past practice by the Employer in the assignment of
miniature electronic cameras for news-gathering purposes and does not take
into account the full scope of the work.
In view of our conclusion that the determination has little significance in
this proceeding , we deny the Employer's motion to reopen - the record to
Although the IBEW relies on testimony concern-
ing the assignment of electronic camera equipment at
various area television stations, the record does not
reveal any actual assignment of the work-in dispute
here-operation of miniature cameras for news gath-
ering-to engineering technicians other than by the
major networks. The one - possible exception,
KRON-TV, has not made a final assignment of the
work in dispute in this proceeding.
IBEW Local 202 represents both the engineering
technicians and the film cameramen employed at
KRON and advised the station that the operation of
these miniature cameras is within the jurisdiction of
the technicians. However, the film cameramen pro-
tested that position to the Local and it is now a topic
of internal union "discussion"; no final decision has
been reached.
Other area stations which have used miniature
cameras for news gathering appear to have assigned
the work to film cameramen. However, that is offset
by the practice of the networks and, the record sug-
gests, their policy with respect to -their owned and
operated stations. These cameras appear to have
been introduced too recently for any clear pattern to
have emerged, at least we detect none. We find this
factor is little help in this proceeding.
5. Skills
The IBEW does not argue that the skills of the
engineering technicians are necessary, or even partic-
ularly advantageous, to the operation of the minia-
ture cameras involved in this dispute. It contends
that although a production team normally assists
studio cameramen-the engineering technicians-
generally the production team exercises only loose
control. The IBEW asserts that the technicians have
"the capacity and experience to function rather inde-
pendently" and can make independent judgments. It
also notes that a reporter is usually present with the
news cameraman with whom the news cameraman
would normally consult, and that the reporter has the
final word if they disagree. Although conceding that
news cameramen working for the Employer have the
ability to respond to news events without production
crews, the IBEW suggests that is because the Em-
ployer provides them with the equipment to do so
rather than because of "any particularly greater ex-
pertise in the use of electronic camera equipment for
news gathering . . . compared to the engineering
technicians... ."
The Employer and IATSE argue that the skills of a
photojournalist are required to perform the work in
dispute and that the miniature camera is merely an-
introduce evidence that Umpire Cole later reversed that determination.
STAGE EMPLOYEES; LOCAL NO. 659 1007
other tool. IATSE requires an 18-month apprentice-
ship for news camermen. If the individual-has the
aptitude to successfully-complete the apprenticeship,
another year or more of experience is necessary" be-
fore the individual would be considered a-completely
qualified cameraman.
The news cameramen represented by IATSE are
experienced and professionally skilled in covering
the news, and are able to record events to tell a com-
plete and accurate story. Although typically working
with a reporter, they also work independently and
determine for themselves the subject and length of a
particular scene . News cameramen are aesthetically
skilled and make their own judgments about lighting,
picture quality and composition, and screening direc-
tion, as well as editing in the camera to reduce the
amount of time required in putting the story on the
air. Similarly, news cameramen have the experience
and skill to make news judgments and may assign
themselves to what they consider a newsworthy sto-
ry, or interrupt their coverage of one event to pro-
ceed to another on their own initiative. News camer-
amen are willing to, and do, work in dangerous
situations, whether it be hanging from a cliff or re-
cording a gun battle.
We conclude that this factor favors assignment of
the work in dispute to news cameramen represented
by IATSE Local 659. The work involves two skills,
mechanically operating the camera and photojour-
nalism, but the latter is paramount. The operation of
the camera may be satisfactorily mastered in a few
hours by individuals who already are skilled news
cameramen , but it might take years for the engineer-
ing technicians, assuming the aptitude, to master the
skills of a photojournalist. Although the engineering
technicians may have the aptitude to eventually mas-
ter the skills of a news cameraman and may be will-
ing to face danger on the job, the issue must be de-
cided in light of present circumstances.
6. Economy and efficiency of operation
News cameramen have the skills to operate either
a film camera or the portable electronic camera and
may use both during the day. The engineering techni-
cians do not have the skills to operate a film camera.
When the miniature camera malfunctions, a news
cameraman can revert to use of the film camera; a
technician cannot. Moreover, even assuming that
events would await the repair of the miniature cam-
era in the field, in at least some instances malfunc-
tions have occurred which could not be repaired in
the field.
The Employer argues that the news cameramen in-
dividually perform a multitude of additional work
which requires the services of 8 or 10 individuals in
the studio, some or all of whom might also be re-
quired in the field were the work assigned to engi-
neering technicians. That may be true, but to attach
great significance to it in relation to economy would
give it undue weight, since -the ability of news cam-
eramen to work independently, in contrast with the
engineering technicians, has already been considered
as a matter of skill.
We conclude that this factor favors assignment of
the work in dispute to the news cameramen. Were
the work assigned to the technicians, the Employer
would be required to choose between also assigning a
news cameraman with a film camera to each event
covered by a portable electronic camera or risk being
unable to record the event.
7. Loss of jobs
The work in dispute involves the use of portable
electronic cameras in news-gathering work of a type
previously performed by news cameramen using film
cameras. The record does not indicate that it replaces
work previously performed by engineering techni-
cians. It follows that assignment of the work to news
cameramen would not affect the jobs of the techni-
cians, but that the converse would result in a loss of
work, and presumably jobs, for the news cameramen.
Accordingly, we find that this factor favors an as-
signment of the work in dispute to the news camera-
men represented by IATSE Local 659.
Conclusion
We conclude, having considered the arguments of
all the parties, the record, and the relevant factors
detailed above, that the Employer's news cameramen
represented by IATSE Local 659 are entitled to per-
form the work in dispute at KPIX. We reach this
conclusion in view of the parties' collective-bargain-
ing agreements, including IBEW Local 202's agree-
ment that the work in dispute would not be per-
formed under its jurisdiction, but most particularly
relying on the news cameramen's greater skills; the
fact the work involved is essentially a substitute for,
or another method of performing, work previously
performed by the news cameramen; greater efficien-
cy and economy; and the Employer's preference.
We are assigning the work in dispute to news cam-
eramen represented by IATSE Local 659, but not to
that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, and based on the fore-
going findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby
makes the following Determination of Dispute:
News cameramen employed by the Employer,
Westinghouse Broadcasting Company, Inc., at
KPIX-TV, San Francisco, California, and repre-
sented by International Alliance of Theatrical, Stage
Employees and Moving Picture Machine Operators,
Local No. 659, are entitled to the use and operation
of miniature or portable electronic cameras and vi-
deotape recorders for news-gathering purposes.