WLVI Inc.

National Labor Relations Board - Board Decisions

Mar 30, 2007

349 N.L.R.B. 683 (N.L.R.B. 2007)

WLVI INC.
349 NLRB No. 63
683
WLVI Inc. and International Brotherhood of Electri-
cal Workers, Local 1228, AFL–CIO, Petitioner.
Case 1–UC–837
March 30, 2007
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On June 16, 2006, the Regional Director for Region 1
issued a Decision and Clarification of Bargaining Unit in
which she found that the newly created position of video
journalist working in the Employer’s news department
should be included in the bargaining unit of technicians
represented by the Petitioner. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s De-
cision and Clarification of Bargaining Unit. The Peti-
tioner filed an opposition to the request for review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer’s request for review of the Regional Di-
rector’s decision is granted solely with respect to the
issue of whether the video journalist should be added to
the unit pursuant to the Board’s decision in The Sun, 329
NLRB 854 (1999).1
Having carefully considered the entire record with re-
spect to the issue under review, we find that the video
journalist should not be added to the bargaining unit be-
cause the position is more similar to that of a reporter,
whose work is not included in the unit. Under the stan-
dard set forth in The Sun,2 the photography and editing
performed by the video journalist is merely incidental to
the video journalist’s primary role as a reporter.
Facts
The Employer operates a television station located in
Boston, Massachusetts. It produces a 10 p.m. news pro-
gram that it broadcasts each night. The Petitioner repre-
sents a unit of all 50 technicians and engineers employed
at the station. That unit includes 13 news photographers
and editors. The collective-bargaining agreement func-
tionally defines the bargaining unit by the type of work
performed.3 The collective-bargaining agreement also

1 We deny the request for review with respect to the Regional Direc-
tor’s finding that the collective-bargaining agreement’s nonexclusive
jurisdiction clause does not preclude the unit clarification petition.
2 Chairman Battista and Member Schaumber were not on the Board
when The Sun was decided, and do not necessarily agree with the stan-
dard enunciated in that case. However, they agree that under The Sun
the video journalist should not be included in the unit.
3 The relevant provision of the collective-bargaining agreement is as
follows:
Section 1. ASSIGNMENT OF WORK
contains a “non-exclusive jurisdiction” clause that allows
the Employer to assign unit work to nonunit employees.
The Employer employs reporters, writers, producers,
production assistants and anchors to create and broadcast
the 10 p.m. news. There are five reporters, four anchors,
two weather anchors, two sports personnel, one sports
anchor, and one part-time sports anchor who work on the
10 p.m. news. These employees are not included in the
unit.
The Employer created the position of video journalist
in 2005, and hired a new employee, Adam Chodak, to fill
the position in November of that year. The video jour-
nalist is a reporter who shoots and edits his own news
stories.
Reporters and the video journalist begin their day by
attending a required morning meeting at 9:30 a.m., where
possible stories to be covered that day are discussed.
Reporters and the video journalist are expected to “enter-
prise” or pitch news story ideas during this meeting.
These ideas are discussed along with other potential
news items. Photographers are permitted to come to the
morning meeting, but they rarely attend. The morning
meeting lasts about a half hour, and at the end of it, the
reporters get their assignments for the day.
Photographers receive their daily assignments from an
assignment editor. The assignments can include teaming

(a) The work covered shall be work commonly performed by
Technicians such as work in connection with the installation, op-
eration, maintenance and repair of broadcast, television, and audio
equipment and apparatus by means of which electricity is applied
in the transmission or transference, production or reproduction of
voice, sound, or vision with or without ethereal aid, including all
types of recordings.
(b) This also includes all lighting work and studio and field
operations work incidental to and necessary to television and au-
dio, video and optical recording work and all still and motion pic-
ture photography, film processing, development, editing, splicing
and projection work performed for the Employer.
(c) Work commonly performed by Technicians shall also in-
clude the work of building, maintenance, repair, placement, and
any operation in connection with television performances of
backgrounds, platforms, and other structures forming a part of the
scenery or the set picked up by the cameras, and also parallels or
platforms used to raise or set cameras upon; lighting devices used
to light the television sets and/or performers; properties used on
set picked up by the camera, including the handling of all cards
and displays used in the studio and on remote pickups; handling
lighting on field pickups; procuring properties and performing
construction work.
(d) The foregoing describes covered work, which are those
functions that are commonly performed by Technicians, and
whatever other work is assigned to the Technicians. All assign-
ments shall be made at the sole discretion of the Employer, and
the provisions of this Article V shall not be so construed as to re-
strict the Employer in making assignments of responsibilities,
work and/or functions to Technicians or others out of the Bargain-
ing Unit, as the Employer determines to be in its best interests.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD684
up with a reporter, or going out alone to shoot a voice-
over (VO) or voiceover sound on tape (VOSOT). A VO
on the news is when video is shown with the anchor’s
voice heard speaking about the video, which was taken
by the photographer. A VOSOT is the same as a VO,
except the anchor pauses during the narration to let an
audio portion of the video clip play, usually a statement
from an interviewee. If a photographer is sent out alone
to obtain a VOSOT, the photographer asks questions of
the interviewee to elicit the filmed statements. When a
photographer is assigned to get a VO or VOSOT, the
assignment editor usually provides guidance or instruc-
tions to the photographer regarding what to shoot, and, in
the case of a VOSOT, who to interview and what ques-
tions to ask. The Employer prefers to send an intern or
producer with the photographer for these types of as-
signments, but sometimes photographers are sent out
alone.
Reporters are usually teamed with photographers when
they are assigned to work on a story. The photographer
shoots images for the story, as well as the reporter’s
stand up in which the reporter talks “to” the camera
about the story. After the footage is shot, the reporter
returns to the studio, reviews the video, and writes the
script for the story. The reporter then handwrites out the
time codes to indicate the footage or sound bite clips to
be used from the video, and enters this information into
the computer. When the script is finished, it is given to
the news director, assistant news director, or a producer
to review and approve. After the script is approved, the
reporter records the voiceover for the story. The com-
pleted voiceover and video is then given to an editor.
The editor puts the final version of the story together,
following the reporter’s script, voiceover and footage
marks. The completed story, after it is edited into broad-
cast format, is called a “package.” A traditional package
is about 90 seconds long.
The video journalist also gets his assignments from the
assignment editor. While reporters are sent out with a
photographer to get a story, the video journalist goes out
alone. The video journalist uses a different type of cam-
era from the one used by the photographers. The video
journalist’s camera is lighter and less expensive, and
shoots digital video. The photographers use a larger,
heavier camera that uses beta tape. The special camera
technology allows the video journalist to upload his foot-
age into the computer and edit the stories himself. The
footage uploads in real time, so while it is uploading, the
video journalist watches it and marks footage he would
like to use. He then writes the script and, like the report-
ers, submits the script to the news director, assistant
news director, or producer for approval.
Once the script is approved, the video journalist re-
cords his voiceovers and uses the computer to edit the
footage and voice track into a finished story package.
Reporters, on the other hand, write out specific editing
instructions for the editor to follow. Some reporters sit
with the editor while the piece is being edited, while
other reporters simply drop off their script and tapes with
an editor. One reporter chooses to edit his stories him-
self, although he is not required to do so.
The video journalist is expected to develop a package
for the news each night, 5 nights a week. Some reporters
are expected to do two or three packages a day, but the
video journalist is only responsible for one. The video
journalist is also sometimes asked to shoot VOs and
VOSOTs.
Analysis
In The Sun, 329 NLRB 854 (1999), the Board set forth
a method for analyzing whether new job classifications
should be part of an existing bargaining unit where the
unit is defined by the work performed. The Board held:
If the new employees perform job functions similar to
those performed by unit employees, as defined in the
unit description, we will presume that the new employ-
ees should be added to the unit, unless the unit func-
tions they perform are merely incidental to their pri-
mary work functions or are otherwise an insignificant
part of their work. Once the above standard has been
met, the party seeking to exclude the employees has the
burden to show that the new group is sufficiently dis-
similar from the unit employees so that the existing
unit, including the new group, is no longer appropriate.
Id. at 859 (footnote omitted). In determining whether the
new group, including the new job classification, is suffi-
ciently dissimilar such that the new group is not an appro-
priate unit, the Board examines the community of interest
between the employees to be added and the existing bar-
gaining unit. Id.
In this case, the bargaining unit is defined by the work
performed, and as such, questions of unit clarification are
determined under the standard articulated by the Board in
The Sun. Applying that standard here, we find that the
newly created position in this case does not meet the first
part of The Sun analysis. As set out above, The Sun re-
quires that new employees be included in the unit if they
perform functions similar to those performed by unit
employees, unless the unit functions such employees
perform are merely incidental to their primary work
functions or are otherwise an insignificant part of their
work. We find here that the unit work performed by the
video journalist is incidental to his primary work func-
WLVI INC. 685
tion, and thus that he should not be added to the bargain-
ing unit of technicians.
As the foregoing facts demonstrate, the video journal-
ist is, first and foremost, a reporter. The video journalist
has a journalism degree and a background as a reporter.
His primary job responsibility is to research, investigate
and write stories for the news. He gathers background
information on his stories, identifies people to talk to,
arranges to meet with them, and conducts the interviews.
In addition, the video journalist is expected to come up
with story ideas. Once assigned a story, he “owns” it,
and is expected to follow up on any additional develop-
ments pertaining to the story that may be newsworthy.
Along with the other on-air reporters at the station, the
video journalist is required to sign a personal services
contract, which includes a provision required by the FCC
forbidding the reporter from receiving payment in ex-
change for on-air promotions.
In contrast, the photographers and editors who are in
the unit do not have any of these responsibilities or re-
quirements. Photographers can attend the morning meet-
ing where potential stories are discussed, but they rarely
do. Photographers and editors are welcome to come up
with story ideas, but so are any of the employees in the
news department. Even if a photographer or editor were
to come up with a story idea, they would not “own” the
story—it would be assigned to a reporter or the video
journalist.
While the video journalist does shoot video to accom-
pany his stories, and edits the sound and images into the
final story package, this is incidental to his main respon-
sibility of finding, investigating, and writing the news
stories. The station created the video journalist position
because of new technology that permits a journalist to
shoot video without a photographer.4 The video journal-
ist uses a digital video camera and a computer-based
editing program to prepare his story packages for the
evening news. When the traditional reporters go out to
cover a story, they are accompanied by photographers
who bring a camera, set it up, and record footage. When
the video journalist goes out on a story assignment, he
brings a video camera with him rather than bringing a
photographer. He sets up the camera on location, and
records footage and the interviews that he conducts.
That the video journalist uses a camera to augment his
reporting duties does not mean that he performs signifi-
cant unit duties. The Board anticipated such a circum-
stance in The Sun. Identifying a situation in which an

4 Pamela Johnson, the news director for WLVI, testified that she and
the general manager for the station created the video journalist position
because they learned about new technology which allows on-air report-
ers to shoot and edit their own stories.
employee’s new job function was not consequential, and
therefore would not warrant adding the employee to the
unit, the Board noted that, “[f]or example, news report-
ers’ use of computers to prepare nearly press-ready copy
would be an incidental consequence of the introduction
of new technology to the pressroom and would not
change their basic work.” 329 NLRB at 859 fn. 15. That
situation is analogous to the one here. The technology
advance discussed in The Sun for print reporters allowed
the reporters to use a computer to format their stories for
publication. Similarly, here a television journalist can
use a digital camera to record video to prepare broadcast-
ready stories; the use of the camera would appear to be
incidental, and not a change in the reporter’s basic work.
That this is so is evident by the video journalist’s re-
maining duties. Back at the studio, the video journalist’s
process is very similar to that of other reporters. He re-
views the footage that was shot, marks the clips that he
wants to use, and writes the story. Using the computer
editing software, he edits the images, sound bites, and his
voiceover into a complete, ready-to-air package. Al-
though the video journalist edits his own stories, so do
other reporters. The reporters can edit as much and as
many of their stories as they want—in fact, one of the
reporters chooses to edit his own stories every day. Re-
porters who chose not to edit their stories make notes
regarding what specific footage they want used, and ei-
ther give the editors detailed instructions regarding how
to put the voiceover, sound bites and video together, or
they sit in the editing booth with the editor while it was
being edited. When the story is given to the editors, the
reporters have essentially already edited their pieces by
deciding how the images, script and sound bites should
go together. The computer software allows the video
journalist to bring these pieces together himself rather
than telling the editors how to put together what he has
envisioned for the story. Similar to the print media ex-
ample cited to in The Sun, the new technology here al-
lows the video journalist to finalize his own story.
When considering the video journalist’s job functions
as a whole, we find that the video journalist is primarily a
reporter, and the photography and editing functions that
he performs are only incidental to this primary function.
The Petitioner contends that an alternative, dual-function
analysis demonstrates that the video journalist must be
included in the bargaining unit because of the amount of
time that the video journalist spends shooting video or
editing his story packages.5 In this context, however,

5 Employees who perform more than one function for the same em-
ployer are considered by the Board to be dual-function employees.
Berea Publishing, 140 NLRB 516 (1963). In determining whether
dual-function employees should be included in a bargaining unit, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD686
parsing the video journalist’s day to determine when he
may or may not be doing unit work under a dual-function
analysis misses the broader picture, which is that the
video journalist is fundamentally a reporter. He shoots

Board looks to whether such employees regularly perform work for
sufficient periods of time to demonstrate that they have a substantial
interest in the unit’s wages, hours, and conditions of employment.
Avco Corp., 308 NLRB 1045 (1992). Although no bright line rule has
been established, the Board generally finds that dual-function employ-
ees should be included in a bargaining unit if they spend 25 percent or
more of their time performing unit work. Id. at 1047.
The Petitioner contends that the video journalist spends approxi-
mately 4 hours, or about half of his regular workday, shooting video
and editing his story packages. The Employer contends that these
functions take up less than 1-1/2 hours of the video journalist’s typical
9-to-10-hour workday. The Regional Director found that the video
journalist’s job is a combination of reporter and unit work and that
those functions are equally important to the broadcast, but they are
difficult to separate in terms of time. Under our view of the case, we
find it unnecessary to resolve this conflict in testimony.
video while he is gathering information for a story. He
reviews the footage of images and interviews, writes a
script and edits the pieces together into a narrative that
conveys the news story to the audience in a thoughtful
and compelling manner. He functions primarily as a
reporter who gathers information and puts together sto-
ries for the nightly news broadcast. Photography and
editing are incidental to this primary function. As such,
the video journalist should not be added to the bargaining
unit of technicians. Accordingly, we reverse the Re-
gional Director’s Decision and Clarification of Bargain-
ing Unit and clarify the unit to exclude the video journal-
ist.
ORDER CLARIFYING UNIT
The collective-bargaining unit is clarified to exclude
the video journalist.