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National Labor Relations Board - Board Decisions

Jul 29, 2020

369 N.L.R.B. 134 (N.L.R.B. 2020)

369 NLRB No. 134
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
NBC Universal Media LLC and National Association
of Broadcast Employees & Technicians-Commu-
nication Workers of America, AFL–CIO, Peti-
tioner. Case 02–UC–000625
July 29, 2020
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The principal issue presented in this case, on remand
from the United States Court of Appeals for the District of
Columbia Circuit, is whether separately certified or recog-
nized bargaining units have merged to form a single unit
such that the Petitioner (herein also referred to as the na-
tional Union or NABET) represents a single nationwide
unit. On remand from the Board, the Regional Director
issued a Supplemental Decision on December 13, 2018
(pertinent portions of which are attached), answering that
question in the affirmative and clarifying that single unit
to include the newly created content producer job classifi-
cation. Thereafter, in accordance with Section
102.69(c)(2) of the National Labor Relations Board’s
Rules and Regulations, the Employer filed a timely re-
quest for review. The Petitioner filed an opposition.
In concluding that the Petitioner represents a single,
merged unit, the Regional Director—consistent with the
Board’s instructions—applied a “wholistic” analysis.
Upon further consideration, and as discussed more fully
below, we have concluded that this approach affords in-
sufficient weight to Section 7 rights and has proved overly
cumbersome in its application and inconsistent in its re-
sults. The Employer’s request for review is therefore
granted as it raises a substantial issue warranting review.
Upon review, we reaffirm and reinstate the standard set
forth in Board decisions such as American Can Co., 109
NLRB 1284 (1954), and Hygrade Food Products Corp.,
85 NLRB 841 (1949), and hold that, in order to demon-
strate that a merger of units has occurred, the alleging
party must show an “unequivocal manifestation of an in-
tent” to merge the units. American Can, supra at 1288.
Applying that standard here, we find that the evidence
fails to establish that the parties unequivocally intended to
1 Immediately preceding implementation of the new model in New
York, the Employer and NABET’s New York local (Local 11) signed a
contract (herein the Local 11 Agreement) providing, in relevant part, that
the New York content producers would not (absent an election) be rep-
resented by the Union, but that unit members hired into the content pro-
ducer position could choose to keep their existing representation.
merge the separately certified and recognized units into a
single nationwide unit. Accordingly, we reverse the Re-
gional Director’s finding on this matter.
I. BACKGROUND
The Employer produces television-news programming
for both network and local stations. For about seven dec-
ades, NABET and its locals have represented various clas-
sifications of the Employer’s employees (including, as
most relevant here, news writers, editors, and photogra-
phers employed at local stations) under a series of Master
Agreements. The most recent Master Agreement expired
on March 31, 2009. The Master Agreement consists of 26
General Articles, 15 Individual Articles, and multiple
Sideletters. The Individual Articles apply to different
groups of employees according to their job classifications
and, in some instances, their work locations. For example,
all technical employees, including editors and photogra-
phers, are covered by a subagreement referred to as the
“A” agreement, which is national in scope, while news
writers are covered by the “H,” “M,” or “N” agreements
according to their location (Chicago, Los Angeles, and
New York, respectively).
In response to a substantial decline in its broadcast-
news viewership due to increased use of other news plat-
forms, the Employer created a new business model in
2008 and 2009 whereby the news would be produced as
“content” that could be readily adapted to the entire range
of platforms. The Employer created the content producer
position as a critical part of this model, with content pro-
ducers filming, editing, news writing, and exercising edi-
torial control over their content. This was in contrast to
the traditional model, where different classifications were
responsible for each of these news-production aspects.
The Employer first implemented its new model at its local
station in New York, and then extended it to local stations
in Chicago, Los Angeles, and Washington, D.C. In doing
so, the Employer shifted work that previously had been
assigned to employees working in positions covered by
the Master Agreement to the content producer position.
The Employer did not conceive of the content producer
position as a bargaining-unit position.1
NABET filed the instant UC petition (Case 02–UC–
000625) on December 20, 2010, seeking to clarify that the
employees at these four local news stations were part of a
single, nationwide unit and that the content producers
were part of that purported unit.2 On October 26, 2011,
2 The local unions representing NABET employees in New York (Lo-
cal 11), Chicago (Local 41), Los Angeles (Local 53), and Washington,
D.C. (Local 31) had previously filed unit-clarification petitions (in Cases
02–UC–000619, 13–UC–000417, 31–UC–000323, and 05–UC–000403,
respectively) seeking to add content producers to their local units. The
American Federation of Television and Radio Artists (AFTRA)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the Acting Regional Director issued a Decision on Unit
Clarification Petitions (Clarification Decision) finding
that the Petitioner represents a single nationwide unit3
and—applying Premcor, 333 NLRB 1365 (2001)—clari-
fying that unit to include all content producers in the Em-
ployer’s New York, Los Angeles, and Chicago stations.4
The Employer filed a request for review, which the Board
denied on September 25, 2013.
The Employer subsequently refused to bargain and
NABET filed unfair labor practice charges. On April 7,
2014, the Board granted the General Counsel’s Motion for
Summary Judgment, finding that the Employer failed to
recognize and bargain with the NABET as the exclusive
representative of the content producers in the bargaining
unit. NBC Universal, Inc., 360 NLRB 633 (2014). The
Employer filed a petition for review with the United States
Court of Appeals for the D.C. Circuit, and the Board filed
a cross-petition for enforcement.
On February 23, 2016, the court denied the Employer’s
petition for review and the Board’s cross-application for
enforcement and remanded this proceeding to the Board,
instructing it to explain the principles embodied in its rel-
evant precedent and how those principles apply to the par-
ties’ dispute over whether the Master Agreement covered
a single nationwide unit or multiple units.5 NBCUniversal
Media, LLC v. NLRB, 815 F.3d 821, 834 (D.C. Cir. 2016).
subsequently filed a petition (Case 05–UC–000407) covering the Wash-
ington, D.C. content producers.
3 Accordingly, the Acting Regional Director dismissed the unit-clar-
ification petitions filed by the relevant local unions. With respect to the
Washington, D.C. content producers, the Acting Regional Director found
that the unit-clarification petitions raised a question concerning represen-
tation and therefore dismissed the petitions filed by NABET Local 31
and AFTRA.
4 The Acting Regional Director also found that (1) the content pro-
ducers are not historically excluded from the nationwide unit, and (2) the
Local 11 Agreement is not binding on the national NABET and therefore
did not preclude the instant UC petition.
5 More specifically, the court asked the Board to address: (1) whether
the “wholistic” approach followed in cases involving “master agree-
ments” such as Columbia Broadcasting Systems, 208 NLRB 825 (1974)
(CBS), National Broadcasting Co., 114 NLRB 1 (1955), and American
Broadcasting Co., 114 NLRB 7 (1955), is appropriate to address the is-
sue, instead of the Acting Regional Director’s “two-step bifurcated” ap-
proach (815 F.3d. at 830–832); (2) the Board’s view of the effect of an
earlier certification decision reported at National Broadcasting Co., 59
NLRB 478 (1944), the apparently indeterminate state of the record with
respect to the parties’ history of bargaining agreements, and the applica-
bility of CBS (in view of the fact that CBS involved a relationship based
on voluntary recognition rather than certification) (815 F.3d at 829–830);
and (3) whether NBC, 114 NLRB 1, may be distinguished from the in-
stant case (815 F.3d at 833). The court specifically asked the Board to
address the factors set forth in CBS, supra at 826, noted below, and their
relevance to the instant case. 815 F.3d 832–833. Finally, as noted further
below, the court instructed the Board to address the parties’ dispute over
the whether the Local 11 Agreement is binding on the national Union but
On May 24, 2016, the Board advised the parties that it
had accepted the court’s remand and invited them to file
statements of position with respect to the issues raised by
the remand. The Employer, the General Counsel, and the
Union filed statements of position, the Employer filed a
reply brief and limited response to the General Counsel’s
statement of position,6 and the General Counsel and the
Union each filed a supplemental statement in response.
On March 7, 2017, the Board issued an order finding
that the “wholistic” approach identified by the court was
the appropriate standard to use in determining whether the
separately recognized and certified units have merged to
form a single nationwide unit in this case. The Board re-
manded the proceeding to the Regional Director for fur-
ther analysis in light of the court’s opinion, and the Re-
gional Director issued an order reopening the hearing to
afford the parties the opportunity to supplement the record
on the unit-scope issue.
II. THE REGIONAL DIRECTOR’S SUPPLEMENTAL DECISION
ON REMAND
In his Supplemental Decision, the Regional Director af-
firmed all of the findings of fact in the underlying Clarifi-
cation Decision, and concluded that, based on a “wholis-
tic” analysis, the Union represents one nationwide unit. In
reaching this conclusion, the Regional Director found that
the structure of the Master Agreement,7 the parties’ bar-
gaining history,8 and the process for handling grievances9
acknowledged that the resolution of that issue may depend in part on how
we resolve the unit-clarification issue. 815 F.3d at 834.
6 Per the Employer’s request, its answering brief was limited to re-
sponding to the General Counsel’s argument that the Board should ac-
crete content producers into the “A” unit of the Master Agreement.
7 More specifically, the Regional Director found that (1) although the
Individual Articles partially set the terms and conditions of employment
for certain classifications of employees, they do not and cannot stand
alone as descriptors of working conditions for classifications listed
within them, and must be interpreted in conjunction with the General
Articles and multiple Sideletters; (2) while there is significant language
in the Master Agreement indicating the existence of multiple units, that
agreement also references all represented employees as part of a single
unit, and “a deeper reading shows a significant blurring of the lines” be-
tween the employees working under different Individual Articles; and (3)
there are almost no employees currently working under any Individual
Article other than nationwide bargaining unit “A” (covering technical
and engineering employees).
8 The Regional Director particularly found significant that (1) for dec-
ades, the parties have bargained the Master Agreements at the national
level; (2) neither side has designated different teams to bargain the Indi-
vidual Articles; and (3) the supplemental local agreements arise on an ad
hoc basis and do not necessarily align with the classifications in the In-
dividual Articles. He concluded that where local bargaining has occurred
along the lines of the distinct Individual Articles, this has happened as a
matter of convenience and did not evidence that bargaining was separate
for each Individual Article.
9 The Regional Director noted that although the parties process griev-
ances in the locations where the grievances arise, this is based on
NBC UNIVERSAL MEDIA LLC 3
all favor finding a single nationwide unit. At the same
time, the Regional Director acknowledged that the Master
Agreement contains statements suggesting the existence
of multiple units (though, as noted above, he concluded
that a “deeper reading” of the Agreement ultimately favors
a single unit), that the Master Agreement’s ratification
process somewhat favors finding multiple units10 (but did
not accord this process much weight, commenting that the
practical effect of the process is “unclear and untested”),11
and that union letters and documents that reference multi-
ple units tend to indicate the existence of multiple units
(but that these communications also appear to be short-
hand references to certain terms and conditions and not
necessarily indicative of a limitation on unit scope). The
Regional Director also considered the unit certifications
and the arbitration awards in evidence but concluded that
they were neutral considerations of little value to his anal-
ysis.12
As directed by the court and the Board, the Regional
Director also applied the four factors set forth in CBS, 208
NLRB at 826, which the Board has applied in determining
whether the nature of local bargaining was sufficient to
defeat a claim that the parties intended to merge separate
units into a single unit,13 and determined that on balance,
these factors similarly favor finding a single, merged unit.
Here too, he acknowledged that under the first factor, the
Master Agreement includes numerous references to
geographic convenience, not on the jurisdiction set forth in each Individ-
ual Article.
10 The Union conducts contract-ratification votes among groups of
employees working under Individual Articles, and the Master Agreement
is not considered ratified until each such group has accepted it by major-
ity vote. In instances where Individual Articles have not been ratified,
the parties have negotiated further about the terms pertaining to the rele-
vant group(s) of employees.
11 The Employer neither asserted nor provided evidence that it could
not implement the Master Agreement until each article was ratified.
12 Regarding the certifications, he determined that, while the certifi-
cations show that some job classifications were separately certified (thus
suggesting multiple units)—see, e.g., 59 NLRB 478 (technical employ-
ees) and 114 NLRB 1 (film editors)—the original mode of recognition is
less significant than bargaining history in determining unit scope and he
could not generalize from this evidence; he also found that there are a
wide range of classifications covered under the Master Agreement for
which there are no individual certifications in the record and no other
evidence about how the Union came to represent employees in those
classifications. As for the arbitration awards, the Regional Director
found that they were difficult to analyze as they are “limited to the gran-
ular issue[s]” presented in the individual grievances at issue in each case,
and do not consider factors that the Board applies in determining unit
scope.
13 These factors are: (1) references in a master agreement to “units,”
with a description of each unit, (2) an absence of a significant history of
joint bargaining, (3) bargaining through the years for various numbers of
locations where the union demonstrated majority status, and (4) the ex-
istence of separate agreements with no master agreement or recognition
“units” (and that unit descriptions appear in most Individ-
ual Articles, which the contract provides hold primacy
over the General Articles), but concluded that the other
factors all favor finding a merged unit.14
Having concluded that NABET represents a single,
merged unit, the Regional Director went on to affirm the
Clarification Decision’s finding that the content producers
perform the same basic functions historically performed
by unit employees and they “remain” in the unit under
Premcor. Finally, the Regional Director determined that
the Local 11 Agreement does not waive the national Un-
ion’s right to claim jurisdiction over the content produc-
ers.
III. DISCUSSION
The Employer argues that a party claiming that separate
and distinct units of employees have been consolidated
into a single unit must present evidence of “unequivocal
manifestation of an intent” to merge the units, citing
American Can, 109 NLRB at 1288. It urges that “‘[t]he
Board does not find a merger in the absence of unmistak-
able evidence that the parties mutually agreed to extin-
guish the separateness of the previously recognized or cer-
tified units.’” Duval Corp., 234 NLRB 160, 161 (1978)
(emphasis in original). For the following reasons, we
agree with the Employer that these are the appropriate
standards to apply.15
clause expressing intent to merge separately certified units into a single
unit. Ibid.
14 With respect to the second factor, he found that the parties have a
consistent practice of nationwide bargaining for new contracts, bargain-
ing teams share a desire to reach one contract covering the Employer’s
operations from coast to coast, and severing a segment of this group at
this point would destroy stability. Regarding the third factor, he empha-
sized that although some groups were separately certified, they were later
“folded in” with other classifications of employees (as a result of which
nearly all employees are now covered by Art. A) and that any remaining
geographic demarcations appear to be for administrative convenience.
And for the fourth factor, the Regional Director found that while there is
no language explicitly announcing an “intent to merge,” the record con-
tains numerous examples of arrangements that have “blended some of
the distinctions between separate ‘units,’” and the Sideletters and other
arrangements between the parties over the years show “a course of con-
duct in which the parties intended that the NABET-represented employ-
ees” in the various units were to merge into and “function as a single
unit.”
15 We acknowledge that this standard differs from the “wholistic”
standard found appropriate in the Board’s 2017 order remanding and
which the Regional Director was instructed to apply here. This change
in course is deliberate and, as explained further below, is based on the
need to clarify this area of precedent and our finding that requiring an
unequivocal manifestation of intent to merge will better accommodate
employees’ Sec. 7 rights, and it will better serve the Agency and our
stakeholders by providing clear guidance. This change in course is ac-
cordingly within the Board’s discretion. See, e.g., Encino Motorcars,
LLC v. Navarro, 136 S.Ct. 2117, 2125–2126 (2016) (stating that “[a]gen-
cies are free to change their existing policies as long as they provide a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The Board’s approach to determining whether sepa-
rately certified or recognized bargaining units have
merged to form a single unit has shifted over the years,
resulting in an inconsistent body of precedent. In one line
of cases, as the Employer indicates, the Board has required
“unmistakable” or “unequivocal” evidence of mutual in-
tent between the parties to find that such a merger has oc-
curred, considering both contractual language and bar-
gaining history in making this determination.
For example, in Hygrade Food Products, 85 NLRB
841, the Board found that a single-plant unit had not ef-
fectively merged with units at other plants to form a sin-
gle, multiplant unit. Although the master agreements con-
tained features present in cases where the Board had found
multiplant units, the Board concluded that there was “no
unmistakable indication that these parties mutually in-
tended to extinguish the right of the employees in each of
the original plant units to select and change their bargain-
ing representatives, at appropriate intervals, by the vote of
their separate majority,” and that the practice of negotiat-
ing master agreements apparently had occurred because of
convenience. Id. at 844–845. Similarly, in American Can,
109 NLRB 1284, the Board found that a single-plant unit
had not effectively merged with other units to form a mul-
tiplant unit. Citing Hygrade Food Products, the Board re-
viewed the features of the master agreement and the bar-
gaining history and found “no clear indication as to
whether or not the parties . . . actually intended to effect a
consolidation of the local plant units,” and “no unequivo-
cal manifestation of an intent” to merge those units. 109
NLRB at 1288. And, in other cases, the Board has re-
quired “clear,” “unmistakable” or “unequivocal” evidence
of an intent to merge separately certified or recognized
units.16
reasoned explanation for the change,” and that an agency must “‘display
awareness that it is changing its position’ and ‘show that there are good
reasons for the new policy’”) (quoting FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009)); National Federation of Federal Employ-
ees, FD-1 v. FLRA, 412 F.3d 119, 121 (D.C. Cir. 2005) (“‘[A]n agency
changing its course must supply a reasoned analysis indicating that prior
policies and standards are being deliberately changed, not casually ig-
nored.’”) (quoting B B & L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir.
1995) (per curiam)). This change of course is also consistent with the
court’s remand, which directed the Board to “explain both the principles
embodied in the relevant precedent and how application of those princi-
ples to the facts here supports the resolution of the parties’ dispute,” 815
F.3d 834, but did not require the Board to apply the “wholistic” standard.
16 See, e.g., Metropolitan Life Insurance Co., 172 NLRB 1257, 1258
(1968) (finding “no clear mutual intent to effect the consolidation of the
certified units into a single overall unit”); Remington Office Machines,
158 NLRB 994, 996–997 (1966) (finding no “clear” or “unmistakable
indication” that the parties “mutually intended to extinguish the right of
the employees in each branch office to select, change, or decertify their
bargaining representatives by the vote of their separate majorities[]”);
In another line of cases, however, the Board seemingly
deviated from this approach in favor of a “wholistic” anal-
ysis of parties’ contract language, bargaining history, and
course of conduct. In General Motors Corp., 120 NLRB
1215 (1958), for example, the Board found that numerous
separately certified plant units had been merged into a na-
tionwide multiplant unit without citing or applying the
“unequivocal intent” standard discussed above. Instead,
after considering the “total picture of bargaining,” the
Board found that there was “no doubt that General Motors
and UAW intended to, and in fact did, carry on their col-
lective-bargaining on the basis of a single companywide
multiplant unit” notwithstanding “some minor facts that
might point to a contrary intent.” Id. at 1220.
Later, in General Electric Co., 180 NLRB 1094 (1970),
the Board went even further, finding a merger of units
based on the parties’ conduct. The Board found that sev-
eral factors supported a finding that the units had not been
merged, such as reference in the national agreements to
“units,” in the plural, negotiation of supplemental agree-
ments on the local level, the absence of any explicit ad-
mission on the record that the parties intended to merge
the separate units into a single multiplant unit, and the
grouping of various employees of different occupations
into a single unit. The Board nevertheless found a multi-
plant unit on the basis that these factors were “outweighed
by the long continuous bargaining history, and the manner
of negotiation, execution, coverage, and application of the
agreements between the parties,” and that a single multi-
plant unit was “more in step with the realities of the rela-
tionship between the parties than would be a contrary find-
ing.” Id.
Likewise, in White-Westinghouse, 229 NLRB 667, 672
(1977), enfd. sub nom. Electrical Workers v. NLRB, 604
F.2d 689 (D.C. Cir. 1979),17 the Board adopted an
Radio Corp. of America, 121 NLRB 633, 634–635 (1958) (finding “no
clear intent by the parties to establish a definable multiplant unit”); U.S.
Rubber Co., 115 NLRB 240, 244–245 (1956) (finding no “clear intent”
to consolidate separate units); Continental Can, 110 NLRB 1042, 1045
(1954) (reviewing master agreements and local supplements and finding
“no clear indication” that the parties “intended to effect such a consoli-
dation of preexisting separate plant units as to destroy the separate iden-
tity of separate units[]”); Armour & Co., 101 NLRB 1072, 1078 (1952)
(finding “no clear indication that the contracting parties intended to de-
stroy the separate identity of the original plant units and to establish a
single, broader unit”).
17 While the court’s decision concerned the successorship issue in that
case, the court also noted that the Board’s ruling that the parties’ pattern
of conduct had merged the individually certified units into a single multi-
plant unit was “consistent with substantial Board precedent holding that
parties to collective-bargaining relationships may by contract, bargaining
history, and course of conduct, merge existing certified units into multi-
plant appropriate units.” 604 F.2d. 689, 693 fn. 11 (citations omitted).
The court did not otherwise comment on the Board’s standard or in any
way suggest that the Board could not apply a different standard.
NBC UNIVERSAL MEDIA LLC 5
administrative law judge’s finding that the parties “by
their own conduct effected a merger of local plant units
into a multiplant unit.” Unlike General Motors and Gen-
eral Electric, the judge in White-Westinghouse acknowl-
edged the competing line of precedent embodied in Amer-
ican Can and Continental Can, but concluded that Gen-
eral Electric had “clearly eschewed” any requirement of
“an explicitly stated contractual intent to effect a merger
of local plant units . . . in favor of a course of conduct
approach.” Id. at 672 & fn. 10.
As the court and the Regional Director in the instant
case discussed at length, the Board also applied a “wholis-
tic” or “course of conduct” approach in CBS, 208 NLRB
825. In that case, the Board appears to have construed this
approach in terms of the four-factor test, noted above, for
assessing whether parties have demonstrated an intent to
merge separate units into one bargaining unit. Based on
these considerations, the Board determined that a merger
of separate units had occurred in light of the contract lan-
guage and bargaining history, finding that “the scope and
nature of the local bargaining and the resulting local sup-
plements to the national agreement [were] not so substan-
tial as to defeat” the finding of a national bargaining unit.
Id. at 826.
Since CBS and White-Westinghouse, the Board has con-
tinued to apply a “wholistic” or “course of conduct” ap-
proach in analyzing merger cases. See, e.g., Anheuser-
Busch, Inc., 246 NLRB 29, 31–32 (1979); Gibbs & Cox,
Inc., 280 NLRB 953, 954, fn. 5 (1986).18 Even so, the
Board has never overruled the “unequivocal” approach,
and at times, language regarding unmistakable or unequiv-
ocal evidence of intent to merge multiple units into a sin-
gle unit has resurfaced in Board decisions. See, e.g., Scott
Paper Co., 257 NLRB 699, 670 (1981) (finding “unmis-
takable evidence that the parties mutually agreed to merge
the instrument technicians into the broader bargaining
unit”); Duval Corp., 234 NLRB at 161 (requiring “unmis-
takable evidence that the parties mutually agreed to extin-
guish the separateness of the previously recognized or cer-
tified units” (emphasis in original)); see also Delta Mills,
Inc., 287 NLRB 367, 368–369, fn. 10 (1987) (finding no
merger where “the parties have not agreed to extinguish
the separate units”).19
Having fully considered the relevant precedent, it is ev-
ident that the Board has at best been unclear in its ap-
proach to the merger issue presented in this case. Despite
myriad decisions stating that a clear, explicit,
18 Outside of CBS itself, however, the Board does not appear to have
construed this approach as a four-factor test. Thus, Anheuser-Busch, su-
pra at 31, states that units can be merged “by contract, bargaining history,
and course of conduct.”
unmistakable, or unequivocal manifestation of an intent to
merge is a requirement, later cases have overlooked or ig-
nored this requirement. Although, as noted, the judge in
White-Westinghouse suggested that General Electric and
other cases had “clearly eschewed” the requirement, it has
never been expressly overruled, and cases more recent
than White-Westinghouse have seemingly rearticulated it.
Indeed, the D.C. Circuit’s comprehensive decision men-
tioned the various standards the Board has applied in the
past, including American Can, supra, faulted the Board’s
prior decision in this case for “misreading” and failing to
take into account Board precedent, and directed the Board
on remand to “explain both the principles embodied in the
relevant precedent and how application of those principles
to the facts here supports its resolution of the parties’ dis-
pute.” 815 F.3d at 832, 834. Our conclusion that the
Board’s previous endorsement of the “wholistic” ap-
proach in this case did not fully reckon with the full sweep
of precedent in this area is consistent with the court’s ob-
servations.
Given the need to clarify the Board’s inconsistent ap-
proach, we deem it appropriate to revisit whether the
“wholistic” approach should be applied in merger cases.
We conclude that it should not and instead reaffirm (or, to
the extent it was ever overruled, reinstitute) the require-
ment of an unequivocal manifestation of intent to merge
separate units. In so doing, we do not intend to narrow the
types of evidence that we will consider: the parties’ intent
need not be evidenced in a master agreement or written
contract. Nevertheless, where, as here, there is equivocal
language in such documents and no other evidence (such
as bargaining history or the parties’ course of conduct)
supplies the requisite unequivocal manifestation of intent,
no merger will be found.
To begin, this standard balances better the Section 7
rights of employees with labor stability. It is well estab-
lished that, when those two statutory goals conflict, the
Board’s job is to strike a sensible balance between them.
See, e.g., Spencer v. NLRB, 712 F.2d 539, 566 (D.C. Cir.
1983), cert. denied 466 U.S. 936 (1984). As the D.C. Cir-
cuit has stated, in a merger situation, “[o]nce the Board
deems a multiplant unit appropriate, it becomes a [s]ingle
bargaining entity. The component parts merge indistin-
guishably and lose their individual identity.” Electrical
Workers v. NLRB, 604 F.2d at 695, fn. 14. As a result, a
merger of multiple units operates to “extinguish the right
of employees in each of the individual plant units to select
19 As discussed in the court’s decision and noted in the Board’s 2017
order remanding, precedent in this area has been further confused by the
Board’s decision in Louisiana Dock Co., 293 NLRB 233 (1989), enf.
denied 909 F.3d 281 (1990), which appeared to articulate a “bifurcated”
approach.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
and change their bargaining representatives, at appropriate
intervals, in plantwide elections.” American Can, 109
NLRB at 1288; see also Hygrade Food Products, 85
NLRB at 845. Finding a merger without an unequivocal
manifestation of such intent too readily permits the rights
of employees to be affected, even extinguished, by the
conduct of the parties; requiring unequivocal intent to
merge better protects employee freedom of choice in such
situations. At the same time, in those situations where un-
equivocal evidence of an intent to merge has been shown,
labor stability will be preserved by honoring the parties’
clear intent, rather than allowing ambiguous evidence to
disrupt established, often (as here) longstanding, relation-
ships.20
The wholistic standard, in contrast, fails to give the
proper weight to these considerations. That standard is an-
alytically flawed as well. It is well settled that, when the
same union is certified or recognized as the representative
of a series of separate units of employees of the same em-
ployer, the parties need not merge the units into a national
unit in order to negotiate on a nationwide basis or to ne-
gotiate a master agreement covering all of the employees
in the separate units. See, e.g., Sperry Rand Corp., 158
NLRB 997 (1966) (multiplant negotiations did not estab-
lish unit merger); Remington Office Machines, 158 NLRB
994 (1966) (multiplant negotiations did not establish unit
merger); Dow Jones & Co., 142 NLRB 421 (1963) (multi-
plant contracts did not establish merger of units). The
wholistic standard nevertheless relies on those same fac-
tors to find unit merger. As exemplified in CBS, supra,
208 NLRB at 826, the wholistic standard also weighs the
evidence based on a sliding scale under which the result
turns on fine distinctions that defy easy classification.
There, the Board analyzed the scope of the unit as follows
(emphasis added):
Moreover, the scope and nature of the local bargaining
and the resulting local supplements to the national agree-
ment are not so substantial as to defeat the claim of a
"national" or multistation unit. In those cases in which
the Board found such circumstances to exist there were
certain factors present -reference in the master agree-
ments to "units" with inclusion of a description of each
"plant unit," absence of significant history of joint
20 Requiring unequivocal intent also promotes labor stability by mak-
ing it less likely that a party to an agreement will, without realizing it has
done so, effectuate a merger through less-than-unequivocal conduct. In
addition, the unequivocal intent standard comports with the principle that
the scope of a unit established by certification or voluntary recognition
may be changed thereafter only with the consent of the parties or the
Board. See, e.g., Hampton House, 317 NLRB 1005 (1995) (once a spe-
cific job has been included within the scope of the bargaining unit by
either Board action or the consent of the parties, the employer cannot
bargaining, bargaining through the years for various
numbers of locations where the union was able from
time to time to demonstrate majority status, and/or exist-
ence of separate agreements with no master agreement
or recognition clause expressing the intention to merge
separately certified units into a single bargaining unit-
which are absent in the instant case. Hence, in those sit-
uations the Board relied on the absence of any intention
to merge into one bargaining unit in determining that the
nature of the local bargaining defeated a claim that there
was an existing multiplant unit.
Taken at face value, this analysis indicates that local bargain-
ing and supplements will “defeat” a merger claim if they are
“substantial” enough; a history of joint bargaining will sup-
port a unit merger finding if that history is “significant”
enough, unless the “nature” of the local bargaining neverthe-
less defeats a claim of a multiplant unit; and the existence of
a “master agreement” may or may not support a merger find-
ing depending on whether it refers to a unit or to “units” or
otherwise expresses an intent to merge the units. But see
General Motors, supra (contract referred to “units” but mer-
ger found); General Electric, supra (same). In these circum-
stances, it is easy to see why the D.C. Circuit found that the
CBS factors “seem to point toward inconsistent outcomes.”
815 F.3d at 833.
The unequivocal manifestation of intent standard ad-
dresses these analytical flaws by focusing the inquiry and
the litigation of these cases to address whether the parties
unequivocally intended to merge the units. As this case
forcefully illustrates, the “wholistic” approach has re-
quired sprawling hearings involving voluminous testi-
mony and exhibits and multiple lengthy decisions address-
ing the full panoply of possible considerations.21 Requir-
ing an unequivocal manifestation of intent to merge much
more clearly delineates the relevant standard and will pro-
vide greater clarity and predictability in this important
area of Board law by avoiding the need for the Board and
the parties to balance and weigh the many factors inform-
ing the “wholistic” approach.22
In sum, requiring an unequivocal manifestation of intent
to merge brings clarity to this area of law, better balances
employee rights and labor stability, and will afford far
greater clarity and predictability with respect to the
remove or modify the position without first securing the consent of the
union or the Board.). It is difficult to see why equivocal evidence should
suffice in a unit clarification case when actual consent is required in an
unfair labor practice case.
21 As indicated above, even a brief summary of the Regional Direc-
tor’s analysis requires substantial explication.
22 We note that, even as the court described the “wholistic” approach,
the court also appears to have approved of American Can, supra. See
815 F.3d at 832.
NBC UNIVERSAL MEDIA LLC 7
litigation of this issue. We overrule any prior cases to the
extent that they are in conflict with this standard.23
We will apply this standard retroactively. “The Board’s
usual practice is to apply new policies and standards ret-
roactively to all pending cases in whatever stage.” Cristal
USA, Inc., 368 NLRB No. 141, slip op. at 2 (2019) (cita-
tions and internal quotation marks omitted). Indeed, in
representation cases such as this one, the Board’s estab-
lished presumption is to apply a new rule retroactively un-
less doing so would work a manifest injustice. Ibid. In
determining whether retroactive application will work a
manifest injustice, the Board considers the parties’ reli-
ance on preexisting law, the effect of retroactivity on the
purposes of the Act, and any particular injustice arising
from retroactive application. Ibid.
Here, as discussed above, the Board’s precedent in this
area has been inconsistent, with some cases still requiring
unequivocal evidence, others not. Further, the parties
have litigated this case based on the “wholistic” approach,
and, in the course of doing so, had ample opportunity and
incentive to present any relevant evidence pertaining to
unequivocal intent, which is a narrower standard.24 Fi-
nally, retroactive application will also serve the purposes
of the Act by bringing immediate clarity and uniformity to
this area of the law.25
Applying the unequivocal-intent standard to the uncon-
tested facts set forth in the Regional Director’s Supple-
mental Decision, we emphasize his undisputed finding
that “there is no language explicitly announcing an ‘intent
to merge.’” There is no explicit language to this effect in
the Master Agreement, nor in any other documentary
23 Specifically, we overrule prior cases to the extent they have found
a merger of separately certified or recognized units without applying the
unequivocal manifestation of intent standard to which we have returned.
However, nothing in our decision today should be read to call into ques-
tion the current scope of any unit addressed in those cases. Any dispute
in that regard would, of course, be resolved on the basis of current cir-
cumstances, not those prevailing decades ago at the time those cases
were decided.
24 For this same reason, the parties could not be prejudiced by their
reliance on “wholistic” cases, because any evidence of unequivocal in-
tent clearly would be relevant to (and, indeed, dispositive of) the “wholis-
tic” analysis.
25 See Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 180–181 (3d
Cir. 2002) (Court concluded that new standard in unsettled area, which
Board articulated in response to earlier court remand, was properly ap-
plied retroactively, noting that it “must defer to agency retroactivity rul-
ings unless the ruling creates ‘manifest injustice.’” (citations omitted)).
26 For instance, the Regional Director found that General Article VI
refers to all represented employees as part of a single unit for purposes
of transferring or “subcontracting out” work, stating that “[i]n respect to
work or functions which in the past have been performed for the Com-
pany both by persons within and without the unit the Company may con-
tinue to have such work performed outside the bargaining unit to a degree
no greater than heretofore” (emphasis added).
evidence. While the Master Agreement contains some
language that refers to all represented employees as part
of a single unit,26 the Regional Director also found “sig-
nificant language” that indicates “the existence of multiple
units.”27 Further, the numerous Sideletters that are also
integral to the Master Agreement do not contain explicit
language indicating that the parties have agreed to merge
the separate units into a single unit.28
The bargaining history similarly offers no unequivocal
evidence that the parties intended to merge the separate
units into a single unit. There is simply no evidence that,
at any point during bargaining for the Master Agreement,
the parties agreed that the separate individual units would
be merged into one single nationwide unit. There also is
no bargaining history concerning the miscellaneous agree-
ments (national supplements and local agreements) cited
by the Regional Director that would establish any une-
quivocal intent—and, in fact, some of the evidence sup-
ports a finding of multiple units.29
Moreover, other factors that the Regional Director cited
weigh against a finding that the parties unequivocally in-
tended to merge the units. The Regional Director found
that the ratification process conducted on a multiunit basis
weighs somewhat in favor of finding a multiunit structure,
to the extent that the evidence establishes that employees
working under each Article hold veto power over the par-
ties reaching an overall Master Agreement. Moreover, the
Regional Director found that the Employer had introduced
a number of letters and other documents in which the Un-
ion referenced “multiple units” that it represents at NBC.30
27 The Master Agreement includes numerous references to “units” and
defines the “Individual Articles” as “contain[ing] the description of each
bargaining unit . . . .” The Preamble refers to “the basic collective bar-
gaining agreements between the parties,” and the Recognition Clause
states that “[t]he Union represents . . . for collective bargaining purposes
all of the employees of the Company as defined in the applicable SCOPE
OF UNIT clause.” Most of the Individual Articles contain separate
“SCOPE OF UNIT” provisions indicating the grouping of employees to
which the terms stated in each article apply, and the contract provides for
the primacy of Individual Articles over the General Articles.
28 Some Sideletters set terms of employment that are broadly applica-
ble to all covered employees, while others address issues relevant only
to employees in a particular classification. Further, some set terms for
employees when they are temporarily performing work covered by a dif-
ferent Individual Article, and several address the performance of “non-
exclusive” work by unit employees.
29 For example, some of the local agreements were clearly signed only
by the Local Union involved.
30 These include: (1) Sec. 8(d) notices from the 1980s and 1990s,
where the Union provided notice to the Employer of its intent to termi-
nate “contracts” covering employees of NBC and expressing the wish for
the parties to meet and confer “for the purpose of negotiating new Agree-
ments to cover your employees in Bargaining Units” represented by
NABET; (2) a 2009 notice referencing a single new “Agreement” to be
negotiated, but repeating the prior references to “Bargaining Units”; and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
In finding that the multiple units have merged into a sin-
gle nationwide unit, the Regional Director placed great
emphasis on the fact that the vast majority of employees,
including editors and photographers, are now covered un-
der Article A (the nationwide technical and engineering
unit), which the parties refer to as the primary “unit” while
considering the other Individual Articles to be “periph-
eral.” Even so, it is undisputed that not all of the sepa-
rately certified or recognized units now work under the
terms of Article A.31
For the foregoing reasons, we find, based on the undis-
puted facts cited by the Regional Director, that the evi-
dence fails to establish an unequivocal manifestation of an
intent to merge the separately recognized and certified
units.32 Accordingly, we find that the Regional Director
erred by finding that the Master Agreement covers a single
nationwide unit.
IV. CONCLUSION
In sum, the evidence fails to establish that the parties
unequivocally intended to merge the separately certified
and recognized units into a single, nationwide bargaining
unit. Therefore, the Regional Director improperly granted
NABET’s request to clarify the unit to include content
producers, and we reverse the Regional Director’s Supple-
mental Decision.33
ORDER
The Regional Director’s Supplemental Decision is re-
versed and the petition in Case 02–UC–000625 is dis-
missed. The petitions in Cases 13–UC–000417, 31–UC–
000323, and 02–UC–000619, dismissed by the Acting Re-
gional Director, are reinstated and the cases are remanded
to the Regional Director for further appropriate action.
Dated, Washington, D.C. July 29, 2020
John F. Ring, Chairman
(3) documents regarding ratification that the Union sent to NABET-
represented employees of NBC, consistently referencing multiple “units”
that will vote “unit-by-unit” on provisions that apply to them.
31 The Regional Director found, and no party disputes, that the air-
conditioning employees covered by art. P (certified as a separate unit in
1956 to be represented by Local 11 in New York) and the staging em-
ployees covered by art. C are not covered by art. A.
32 We note that, in remanding this case, the court directed the Board
to “address the parties’ dispute over the Local 11 [A]greement,” but also
noted that the resolution of that issue “may depend in part on how the
Board resolves the unit clarification issue.” 815 F.3d at 834. Our finding
that there is not a single unit here renders irrelevant the question of
whether the Local 11 Agreement is binding on the national Union. Ac-
cordingly, we need not resolve that issue here.
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
. . . .
SUPPLEMENTAL DECISION
I. SUMMARY OF CASE
On December 20, 2010, National Association of Broadcast
Employees & Technicians—Communication Workers of Amer-
ica, AFL–CIO (NABET or the Union) filed the above-captioned
petition seeking a clarification that the newly designated Content
Producer classification remains in the unit or units represented
by the Union because they performed the same basic work pre-
viously performed by bargaining unit employees whose posi-
tions have been eliminated. To the contrary, NBCUniversal Me-
dia, LLC (NBC or the Employer) argued that the content produc-
ers should not be accreted to the unit(s) because they have been
historically excluded as “Producers” and do not share a commu-
nity of interest with any classifications represented by NABET.
On October 26, 2011, an Acting Regional Director issued a
Decision on Unit Clarification Petitions (Clarification Decision)1
finding that NABET represented a single nationwide bargaining
unit of employees at the Employer. In reaching this conclusion,
the Acting Regional Director first considered the contract lan-
guage regarding unit scope. Due to the complexity of the con-
tract, he found the language ambiguous and therefore, inconclu-
sive. The Acting Regional Director then considered the bargain-
ing history and found that a single unit had been established by
the parties conduct over the years. Next, the Acting Director ex-
amined the work performed by the newly created Content Pro-
ducer classification and found that the Content Producer position
remained a unit position.
After subsequent appeals and review, on February 23, 2016,
the United States Court of Appeals for the District of Columbia
Circuit, remanded the case to the Board for further explanation
and analysis regarding whether NABET represented a single unit
33 As the Master Agreement consists of multiple units and not a single
nationwide unit, we need not address whether the Regional Director
properly found that the purported single nationwide unit should be clar-
ified to include the content producers. But in the absence of a single
nationwide unit, the unit-clarification petitions filed by the New York,
Chicago, and Los Angeles locals seeking to include content producers in
their individual units should not have been dismissed. We shall therefore
reinstate those petitions and remand them for further appropriate action.
1 All other unit clarification petitions in this matter were dismissed:
Case Nos. 02–UC–000619; 05–UC–000403; 05–UC–000407; 13–UC–
000417; and, 31–UC–000323. In the subsequent “test of certification
charge, Case No. 02–CA–115732, the Board’s reference to the instant
petition as 02–UC–000619, should have read 02–CA–000625.
NBC UNIVERSAL MEDIA LLC 9
or multiple units. Specifically, the Court questioned the Acting
Regional Director’s use of what it described as a “two-step bi-
furcated” approach, as distinguished from what the Court termed
the “wholistic” approach used by the Board in examining master
contracts, citing Columbia Broadcasting Systems, 208 NLRB
825 (1974), National Broadcasting Co., 114 NLRB 1 (1955),
and American Broadcasting Co., 114 NLRB 7 (1955). The Court
further asked the Board to address: (1) what significance volun-
tary recognition, as opposed to recognition pursuant to certifica-
tion, may have on the unit determination; (2) the application of
factors referenced in CBS, 208 NLRB 825 (1974); (3) the appli-
cation of NBC, 114 NLRB 1 (1955) (in which the Board found a
group of Los Angeles film employees to be a separate appropri-
ate unit), and (4) whether the agreement regarding content pro-
ducers reached by NABET's Local 11 and NBC bound NABET's
National Union (known as the “Sector”).
On March 7, 2017, the Board found that the “wholistic” ap-
proach should be followed in cases involving master agreements
ana remanded the case to the Region for further appropriate ac-
tion. At the Employer’s request, the record was re-opened to al-
low the parties to present additional evidence.
On remand, NABET contends that it represents a single unit
of employees at NBC and that all content producers are properly
included in that unit. To the contrary, the Employer argues that
the Union represents multiple units corresponding to the Individ-
ual Articles contained in the parties Master Agreement. Further,
the Employer contends that “[galling to prove that it represents a
single, unified bargaining unit means, of course, that there is ab-
solutely no basis for adding content producers to the (nonexist-
ent) unit that NABET seeks to clarify.” The Employer argues
that because the content producers perform work that may have
elements of work covered by several Individual Articles, no ev-
idence has been adduced to justify their accretion into any one of
the specific units that NABET represents. The parties have con-
sistently disagreed on whether the agreement reached between
Local 11 and the Employer binds the Sector.
Based on the record and the parties’ additional briefs, I affirm
all of the findings of fact in the underlying Clarification Deci-
sion. In conducting a “wholistic” analysis and using all of the
factors that the Board considered relevant in CBS, I conclude that
the Union represents one nationwide unit. Further, I conclude
that the content producers remain in the unit because they are
performing the same basic functions historically performed by
the unit and therefore, should remain represented as members of
the unit, covered by the terms and conditions the parties negoti-
ate on a nationwide basis. I further conclude that the Local 11
Agreement is not a waiver of the Sector’s right •to claim juris-
diction over the content producers.
Briefly, the record demonstrates that the parties have circum-
stantially bargained accommodations for work that may be cov-
ered under the terms of more than one of the Master Agreement’s
“Individual Articles.” Through the years, the parties have also
2 The citation to the court's decision is: NBCUniversal Media, LLC v.
NLRB, 815 F.3d 821 (D.C. Cir. 2016).
3 Based on the entire record in this proceeding, I find:
a. The hearing officer's rulings and conduct at the hearing are
free from prejudicial error and are hereby affirmed.
bargained over mutations in the work performed by NABET-
represented employees, which have come about as a result of
technological advances and/or organizational changes. The cu-
mulative effect of this bargaining has been a blurring of distinc-
tions between classifications covered by the different Individual
Articles, as well as, an accelerating consolidation of classifica-
tions under Individual Article “A,” such that vanishingly few
NABET-represented employees are covered by the terms of any
other Individual Article.
The Employer introduced into this framework the newly
styled classification of Content Producer. The work of any single
Content Producer includes tasks previously performed by em-
ployees in several NABET-represented classifications. Thus, the
work of the content producers straddles that of several former
job classifications historically covered by the Master Agreement.
The parties may nationally bargain the terms and conditions that
apply to this unit position.
II. PROCEDURAL HISTORY
On October 11, 2011, an Acting Regional Director issued the
Clarification Decision finding that the newly created content
producer position at the Employer’s New York, Chicago, and
Los Angeles local news stations was a bargaining unit position
properly included in a single, nationwide bargaining unit. On
September 25, 2013, the Board denied the Employer’s request
for review of the Clarification Decision.
On October 28 and 30, 2013, the Union filed a charge and
amended charge in Case 02–CA–115732, alleging that the Em-
ployer refused to bargain and refused to provide requested infor-
mation concerning the content producers based in New York,
Chicago, and Los Angeles. On December 4, 2013, complaint
issued alleging that the Employer failed to bargain in good faith.
On April 7, 2014, the Board granted General Counsel's Motion
for Summary Judgment.
On April 15, 2014, the Employer filed its petition for review
with the Court of Appeals for the District of Columbia Circuit,
specifically with respect to the finding of a single, nationwide
unit. The Board filed a cross-application for enforcement of its
April 7 Order. On February 23, 2016, the Court denied both the
petition for review and the application for enforcement, and re-
manded the instant proceeding to the Board.2 The Court specif-
ically instructed the Board to explain the application of its prec-
edent in reaching the conclusion that the NABET—represented
employees covered by a Master Agreement between the Em-
ployer and the Union constituted a single nationwide bargaining
unit, as opposed to multiple units, as urged by the Employer.
On March 7, 2017, the Board remanded the matter to the Re-
gional Director for further analysis in light of the court’s deci-
sion. By Order dated March 28, 2017, at the Employer’s request,
the Regional Director reopened the hearing for receipt of supple-
mental evidence. The hearing was conducted on May 22 through
26, 2017, and briefs were subsequently filed on September 8,
2017.3
b. I find that the Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of the Act to
assert jurisdiction herein.
c. I find that NABET is a labor organization within the mean-
ing of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
III. RELEVANT CASE LAW
In its remand, the Court asked the Board to explain its prece-
dent and how it was applied to the instant facts. Merging separate
groups of employees into a single unit arises in a number of dif-
ferent situations. In the representation case context, the fact pat-
terns usually involve rival unions seeking to represent the same
group of employees. Another common scenario concerning mer-
ger arises where the appropriate unit is called into question fol-
lowing an employer’s purchase or acquisition of another com-
pany. In these situations, the Board is attempting to balance the
statutory goal of stability in labor relations by maintaining the
historical unit represented by the incumbent union, with the right
of employees to choose whether to be represented by a compet-
ing union.
In newly formed units, the Board generally leans in favor of
conducting an election. As an example, in NBC, 114 NLRB 1
(1955), IATSE filed a petition seeking to represent a unit of film
editors and associated employees in Los Angeles. NABET in-
tervened in that proceeding and claimed that their contract (a pre-
decessor to that in the instant case) covered the petitioned-for
employees as part of a single nationwide unit. The Board con-
sidered NABET's contract at the time which included general
sections and individual sections, with separate scope of unit pro-
visions and multiple references to separate bargaining units and
“agreements.” The Board acknowledged that many provisions of
the agreement applied to all employees but found that the terms
of the contract clearly preserved separately identifiable groups.
Of particular importance, the Board considered the brief bargain-
ing history to find that the petitioned-for unit had not been
merged with the larger unit. The Board ordered an election so
that the employees could choose which union, if any, would rep-
resent them.4
Similarly, in ABC, 114 NRLB 7 (1955), the Board was faced
with an IATSE petition seeking to represent film services em-
ployees who were already represented by NABET in New York.
NABET had been certified as bargaining representative of the
employees five years earlier and reached an agreement with
ABC over their terms and conditions of employment. Shortly
thereafter, in 1953, the parties prepared a “Master Contract” di-
vided into general sections and individual sections. This master
contract referred to separate “collective bargaining agreements”
and units, with individual sections prevailing over general in the
event of any conflict. Again, the brief five-year bargaining his-
tory supported the conclusion that the parties had been bargain-
ing for the employees on the basis of separate units, “as was cer-
tified in 1950.” Id. at 9.
In contrast, in CBS, 208 NLRB 825 (1974), the Board dis-
missed NABET's petition, which sought to represent a unit of
writers at one television station in Los Angeles, in an attempted
raid of the Writers Guild nationwide unit. The Board found that
the facts favored maintaining the historical unit and in doing so,
promoted industrial stability. There, the Guild's national staff
4 l find that the Board’s conclusion regarding multiple units repre-
sented by NABET in 1955 is not controlling with respect to the unit issue
presented here, due to the subsequent decades of bargaining and changes
in the parties' treatment of employees under the Master Agreement since
that time.
agreement was supplemented by local agreements covering sev-
eral cities, including Los Angeles. The Board noted that the mas-
ter agreement provided for a “unit” which was not modified by
the local agreements. While local negotiations were extensive
and covered significant provisions, such as wages and hours, the
parties had signed a single agreement, extending the national and
supplemental agreements which provided for across-the-board
wage increases. Further, the parties conducted local bargaining
centrally and the employer’'s negotiating team was the same for
all locations. Id. at 826, fn. 10. The Board noted its reluctance to
disturb a multi-station bargaining unit which had existed for
about 20 years.
. . . .
The instant case is factually closer to GM, Cadillac Motor Car
Division, 120 NLRB 1215 (1958). Unlike NBC and ABC, the
UAW had represented all of GM's workers for 20 years. Based
on this long course of bargaining, the Board found that the UAW
represented a single, multi-plant unit which was national in
scope. Starting in 1938, the UAW won successive single plant
elections and was certified by the Board as the exclusive repre-
sentative in each plant as a separate bargaining unit. However,
UAW and GM engaged in common centralized bargaining "for
all the plants, from which there emerged a single contract—na-
tionwide and companywide in scope. The UAW-represented
employees were divided into 11 groups. The groupings followed
in some cases job classifications, in some cases type of plant in-
volved, and in some cases kind of car assembled. Some groups
included a few entire plants, plus certain parts of other plants. In
the case of the “tool and die maintenance” group, some employ-
ees worked in the vast majority of the 120 plants. Thus, the old
unit lines based on Board certifications were totally disregarded.
Although the national contract provided for separate supple-
mental negotiations and signed supplemental agreements that
dealt with special problems affecting that location, the Board
held that the total picture left no doubt that the parties carried on
their collective-bargaining on the basis of a single, company-
wide, multiplant unit.
. . . .
Here, for the reasons more fully discussed below, I reach the
same conclusion. The content producers are NABET-
represented employees covered by the national contract.
IV. FACTORS RELATED TO UNIT SCOPE
As noted above, the Board remanded this matter to the me to
conduct a “wholistic” analysis to determine the scope of the
unit(s). I have considered and weighed the following relevant
factors and based thereon, conclude that the unit is one nation-
wide bargaining unit.6
A. The Structure of the Master Agreement
The Master Agreement in effect at the time of the creation of
6 The Employer contends that the Premcor doctrine applies only in a
single overall unit situation. I disagree. Neither Premcor not its progeny
limit its application based upon the scope of the unit.
NBC UNIVERSAL MEDIA LLC 11
the content producer position was effective from 2006 to 2009.
The Preamble, which has been a part of the parties contract over
decades of successor agreements, explains that the parties intend,
“to set forth herein the basic collective bargaining agreements
between the parties . . .” The Recognition Clause states that
“[t]he Union represents . . . for collective bargaining purposes all
of the employees of the Company as defined in the applicable
SCOPE OF UNIT clause, and the Company recognizes the Un-
ion as the exclusive bargaining agent for all such employees of
the Company.” The Master Agreement is signed only by national
representatives of the parties.
1. The General Articles
The first 26 “General Articles” apply to all employees covered
by the Master Agreement, including, for example, the .same
grievance and arbitration provision, the same dues-checkoff pro-
vision, the same benefits provisions, and the same severance pay
provisions.
As detailed in the underlying Clarification Decision, general
article VI refers to all represented employees as part of a single
unit for purposes of transferring or subcontracting out work: “In
respect to work or functions which in the past have been per-
formed for the Company both by persons within and without the
unit the Company may continue to have such work performed
outside the bargaining unit to a degree no greater than hereto-
fore.” (Emphasis added.)
With respect to transferring work within the ranks of all
NABET-represented employees, general article XII provides
that employees transferred to higher-paid classifications retain
Employer and “unit” seniority [with consent of involved locals]
when transferred between offices. The use of the word “unit”
here refers to work covered under a single individual article.7
General article VI, states that “in respect to work or functions
which in the past have been performed for the Company both by
persons within and without the unit the Company may continue
to have such work performed outside the bargaining unit to a
degree no greater than heretofore (emphasis added).”
The Master Agreement does not have a single clear provision
setting out the way seniority functions. All covered employees
have both Company seniority and seniority within subgroups, as
defined in the Individual Articles. Seniority for employees work-
ing under article A is according to geographic location, even
though article A is national in scope.
2. The Individual Articles
The Master Agreement defines the “Individual Articles” as
“contain[ing] the description of each bargaining unit . . . the rates
of pay and any unusual working conditions which have no gen-
eral application.” (Emphasis added.) Most of the Individual Ar-
ticles, including articles A, H, M, and N, contain separate
“SCOPE OF UNIT” provisions indicating the grouping of em-
ployees to which the terms stated in each article apply. Each of
7 Transfers between jobs covered by different Individual Articles are
addressed in other sections of the Master Agreement, including, for in-
stance, Sideletters 50, 51 and 53, as discussed below.
8 The wage rates in arts. H and N for comparable job classifications
appear to be identical, while the wage rates in article M are somewhat
lower. Notably, arts. H, M and N include wage rates for some “producer”
the 15 Individual Articles have their own seniority lists, wage
rates, 8 meal periods, work hours, and other distinct terms and
conditions of employment that are markedly different.
Article A (‘The Engineering Agreement’) covers a national
unit of technical employees. It includes provisions specifying the
kinds of technical equipment that fall within the Union’s juris-
diction and identifying circumstances in which other individuals
may operate specified equipment. The operation of specified
equipment during on-air performance is reserved to covered em-
ployees, except where noncovered employees may be operating
such equipment in regard to their own performance. Likewise,
noncovered employees may operate specified equipment in or-
der to finish material that they are creating, composing, produc-
ing or modifying. Article A contains numerous unique work-
specific provisions, for example, a provision concerning “Equip-
ment Excessive in Weight,” not found in the other Agreements.
Transfers between jobs covered by different Individual Arti-
cles are addressed in other sections of the Master Agreement,
including, for instance, Sideletters 50, 51 and 53, as discussed
below. Articles H, M, and N, describe units of newswriters in
Chicago, Los Angeles, and New York, respectively. As is true of
article A, the newswriter articles include provisions elaborating
“"exclusive duties of the covered employees, the circumstances
in which such duties may also be performed by noncovered em-
ployees, and additional duties that the covered employees may
perform.
The H, M, and N articles also contain nearly identical provi-
sions allowing any person employed at any other office of the
Employer primarily for the purpose of preparing news material
to temporarily perform that work at the location covered by the
relevant sub-agreement, as long as, such interchange is not for
the purpose of replacing newswriters at the location covered by
the relevant sub-agreement.
Articles A, H, M and N permit covered employees to do some
amount of “nonexclusive” work and also permit noncovered em-
ployees to do unit work under limited circumstances. For exam-
ple, the “Scope of Unit” provisions of the H, M and N agree-
ments allow field producers to perform news writing but only in
connection with their producing work. (There does not appear to
be any limitation on the amount of non-exclusive “field produc-
ing” work that may be performed by covered employees.)
Although the Individual Articles usually include a ‘scope of
unit” section, listing classifications to which the article applies,
these classifications are not always unique to a single article. For
example, the “Video journalist” classification is listed as a cov-
ered position under article A, which generally applies to engi-
neering and technical employees, as well as, in articles H, M, and
N, which apply to newswriters in Chicago, Los Angeles, and
New York, respectively. There is no evidence regarding the cir-
cumstances in which a video journalist would work under one
positions. For example, all of these sub-agreements provide wage rates
for “Producers” of 1/2 hour’ and 1-hour long shows or segments, while
the “M” Agreement also includes wage rates for “Sky News Producers”
and the “N” Agreement includes wage rates for “Field Producers” and
“Associate Producers” of 1/2 hour and 1-hour long shows or segments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
article or another.9
Notwithstanding the continued existence of the Individual Ar-
ticles, the vast majority of employees represented by NABET
have been, for some time, working under the terms of article A.
There is no evidence of employees currently working under any
other articles, except for article C (two employees) and article P
(10 employees). In some cases, the parties have agreed that job
classifications previously covered under the terms of now
“empty” Individual Articles, are now covered under the terms
of article A (this is apparently true of former article B traffic co-
ordinators and former article O building maintenance employ-
ees).
The Individual Articles do not have their own expiration dates
and are not separately signed. Although the Master Agreement
provides that Individual Articles prevail in the event of a conflict
between any of them and the general articles, none of the Indi-
vidual Articles stand on its own as a complete contract.
3. The Sideletters
The Master Agreement also contains numerous Sideletters,
which are an integral part of the Agreement. Some Sideletters set
terms of employment that are broadly applicable to all covered
employees (like the General Articles). Other Sideletters address
issues only relevant to employees in a particular classification,
while still others set terms for employees when they are tempo-
rarily performing work covered by a different individual article.
Several Sideletters address the performance of “nonexclusive”
work by unit employees. Thus, over time, the Sideletters bend
the demarcations of work between the Individual Articles, in
some cases, to address how technological change can create a
need for adjustments in work jurisdiction.
As an example of general application, Sideletter 6 provides for
sleeping accommodations for all employees on remote assign-
ments, regardless of job classification or “Individual Article” ju-
risdiction. Likewise, Sideletter 10 sets forth additional benefits
to all represented employees assigned to work outside the conti-
nental United States. Sideletter 32 modifies General Articles
pertaining to “Daily Hires,” or freelance employees, regardless
of the individual article under which they may work.
The following are examples of blended job functions. Side-
letter 11 allows the Employer to take advantage of “technologi-
cal advances” and assign nonunit employees to gather material
for broadcast using hand-held digital cameras, even though this
is work in the jurisdiction of NABET engineers. Sideletter 11
makes clear that assignments of nonunit employees to use
handheld digital cameras, must be made only when the use is in
connection with the employee’s habitual functions. It also ech-
oes the provision of the “Hyphenate Sideletter” (54, reviewed
below) that broadens unit work, in that employees covered by
article A may perform “producer” duties “in combination with
their normal work functions.”
Sideletter 14, the “Computer Sideletter,” provides for use of
computers in the course of work functions by employees, regard-
less of whether or not they are represented by NABET. Comput-
ers are not included in the “technical equipment" covered by
9 At least one content producer had formerly worked as a
NABET-represented video journalist.
individual article A. The issues covered in this sideletter are elab-
orated in sideletter 70, the “Nonlinear Editing Sideletter,” which
specifically concerns the use of computer editing technology by
both unit and non-unit employees.
Sideletter 70, the “Nonlinear Editing Sideletter,” broadens the
Computer Sideletter to allow the Employer “full discretion” in
assigning work with nonlinear editing computer editing systems,
including to employees not represented by NABET and/or work-
ing under article A. Sideletter 70 recognizes the desirability of
having unit employees perform nonlinear editing work and em-
ploys the concept of “editorial responsibility” to delineate the
circumstances in which such work will be covered by the Master
Agreement.
Sideletter 50, the “Crossover Sideletter,” provides that news-
writers working under articles H, M, and N may, in combination
with their normal work functions, be assigned to operate tech-
nical equipment of the sort typically operated by employees
working under article A, and vice versa. Specifically, it provides:
Newswriters (hereafter referred to as "employees") under the
H, M and N Contracts may, in combination with their normal
work functions, be assigned to operate any technical equipment
in connection with the shooting, recording and/or technical ed-
iting; . . . Employees under the A Contract (hereafter referred
to as “employees”) may, in combination with their normal
work functions, be assigned to perform any News writer func-
tions . . . .
Nothing in this Sideletter shall enable an employee to “cross-
over,” i.e., to perform any work which would otherwise fall
within the exclusive duties of a NABET CWA-represented unit
other than his or her own . . ., unless the work is combined with
. . . other work or functions which (a) such person normally per-
forms, and (b) are in connection with the same program or the
same material. Such person need not perform all of the work in
connection with such program or material.
It appears that the “video journalist” classification was in-
cluded in the unit via this sdeletter because video journalists per-
formed both newswriter functions under article M and technical
functions under article A.
Sideletter 51, the “Hyphenate Sideletter,” addresses circum-
stances in which covered employees may be assigned “non-ex-
clusive” work in addition to their regularly assigned work. The
Employer or a Union-represented employee may initiate discus-
sions which could lead to assignment of functions other than
those usually performed, which functions may or may not be
covered by another collective-bargaining agreement. “[S]uch
assignments shall not constitute precedent nor an expansion or
diminution of the jurisdiction in the Master Agreement.”
As noted in the underlying Clarification Decision, the record
demonstrates that unit employees had been assigned producing
work under the hyphenate sideletter and received a “producer’s
upgrade” in pay whenever this occurred. Unlike the crossover
Sideletter (50), this hyphenate Sideletter, in allowing unit em-
ployees to perform non-exclusive work, does not appear to re-
quire that assignments of nonexclusive work be limited to
NBC UNIVERSAL MEDIA LLC 13
situations in which the work is being performed in conjunction
with the employees habitual functions.
Sideletter 55, as related in the Clarification Decision, concerns
revisions to the Master Agreement during the 1987 negotiations,
limiting coverage of the agreement to certain television and radio
stations, as well as, other entities and operations covered by the
previous agreement. It is unclear to what extent, if at all, the “op-
erations” excluded from coverage of the Master Agreement by
this Sideletter might relate to “content” produced by the Em-
ployer for various platforms other than television broadcast. Em-
ployer Senior Vice President of Labor Relations Krolik testified
gener’ jurisdiction to the Employer's broadcast operations. How-
ever, there is little specific evidence about how this provision has
been applied and how it might operate to limit NABET's juris-
diction.
Regarding temporary transfers, Sideletter 51 allows for tem-
porary transfers of union-represented newswriters between Chi-
cago, Los Angeles, and New York, provided they are paid by
check from the transferring office and “remain a member of the
bargaining unit” of the transferring office.
Sideletter 53 provides that when Staging Service employees,
who worked in Washington, DC under article C, are unavailable,
employees working under article A may be assigned to perform
their duties. It further provides that such engineering employees
will perform those duties “when there are no longer any Staging
Services employees on staff or with rehire rights.” Sideletter 53
also allows for staging services employees to perform article A
work and be paid the applicable article A rate while working on
such an assignment.
In conclusion, the terms of employment of NABET-
represented employees at NBC are set by the Master Agreement
as a whole—the General and Individual Articles, along with the
Sideletters. While the contract refers in several places to cover-
age of multiple units, it also in some instances references all rep-
resented employees as a part of a single unit. As will be described
further below, this is in accord with the parties’ treatment of cov-
ered employees as a unified group for some purposes, some of
the time, and as segregated subgroups for other purposes and at
other times.
Based on the record evidence, the Individual Articles do not
and cannot stand alone as descriptors of working conditions for
classifications listed within them. Rather, contract terms relevant
to employees in these classifications may be found not only in
the general articles, but also in multiple sideletters, some of
which are specifically designed to address instances in which an
employee in a single classification may be performing work un-
der more than one individual article, and sometimes performing
work not clearly covered by any articles.
Thus, while superficially there is significant language in the
Master Agreement indicating the existence of multiple units, a
deeper reading shows significant blurring of the lines which
would separate the employees working under different Individ-
ual Articles. As noted, in practice there are also almost no em-
ployees currently working under any individual article other than
A. Accordingly, I find that since the terms of the Master Agree-
ment, as currently applied to the represented work force, create
a single unit of employees, this factor weighs in favor of finding
a single unit.
B. The Bargaining History
1. The Master Agreement
Contract negotiations occur between national representatives
with input from local representatives and subject-matter experts.
Party representatives during contract bargaining were largely
consistent over multiple negotiation sessions for a given pon-
tract. The Union’s brief exhaustively relates the party represent-
atives present for bargaining sessions during 47 sessions of 1987
contract negotiations. Testimonial and documentary evidence
demonstrate that the parties were consistent with this approach
throughout the 1970s, 80s, and 90s and into the 2000s.
The Union's contract bargaining team includes representatives
from each network local Union, as well as, national representa-
tives. Not only have essentially the same bargaining teams nego-
tiated the Master Agreement, the same teams also negotiated
specific proposals that covered all aspects of the Master Agree-
ment — the General Articles, the Individual Articles, and the
Sideletters. To be sure, there are multiple examples in evidence
of peripheral negotiations which are related exhaustively in the
Employer's brief. These include:
• “peripheral” unit bargaining in Chicago in 1967,
while the bulk of the Master Agreement was being
negotiated in New York.
• "peripheral" unit negotiations with different negotia-
tors in 1987.
• different lead negotiators on each side for different
Articles or groups of Articles in 1990 and 1994.
• In 1994, separate meetings about Air Conditioning
and building maintenance employees in New York,
Newswriter Articles in San Diego, and other “periph-
eral” Articles, as well as “sidebars” and subcominit-
tee negotiations in connection with various articles in
the course of the main negotiations.
• Separate discussions of non-engineering Articles dur-
ing 1998-99 negotiations.
• In 2001, Chicago-based negotiations about E and K
Articles, while main Master Agreement negotiations
took place in New York.
Krolik testified to the extensive role played by a particular local
Employer representative with respect to local newswriter nego-
tiations, noting that she had authority as a labor-relations repre-
sentative to offer wage increases pertaining to newswriters dur-
ing those negotiations. He did not, however, recall her ever mak-
ing a proposal without seeking his prior approval. He further ad-
mitted that he did not know whether small break-out groups bar-
gaining for the Union had the authority to bind the national un-
ion. Employer representatives testified that nothing had changed
about the general structure of bargaining during their many years
with the• Employer.
2. Miscellaneous agreements
In addition to bargaining successor Master Agreements, the
parties bargained to agreement on various issues over the years
on the national and local levels.
a. National supplemental agreements
The national-level agreements were signed by the Union's
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
President at the national level and his counterpart at NBC. The
supplemental agreements deal with work performed on specified
networks and/or for particular events. In most cases, the applica-
tion of these agreements is not limited to employees working un-
der particular Individual Articles.
• An August 31, 2007, “MSNBC Agreement” provides
that the Union will make no claims to work performed
in connection with material produced by or for
MSNBC, unless employees of that entity elect the Un-
ion as their bargaining agent in an NLRB election or
MSNBC produces full, regularly-schedule programs
that originally air on the NBC Television Network.
The agreement further provides that certain Union—
represented engineers will cover certain stories for
MSNBC. The agreement provides additionally that
any Union—represented employees hired under Side-
letter 32 for MSNBC work will not count toward the
Employer's allotment under Sideletter 32. A May 9,
2008, “Telemundo Agreement” provides that work for
Telemundo includes payments to be made to Union-
represented employees of amounts no less than the ap-
plicable “A” Agreement Group 5 scale.
• An August 8, 2011, “Olympics Agreement” covering-
the 2012 and 2014 Olympics provides that assigned
Union-represented employees will be paid their usual
base rate; non-staff employees will be paid at a rate no
less than the minimum rate per function as included in
Sideletter 32; work days specified; per diem payments
provided; eligible employees will continue to be cov-
ered by insurance programs in Master Agreement; and
arbitration in accordance with Master Agreement.
• A March 7, 2012, “NBC Sports Agreement” provides
that the Union will not make claims to work performed
in connection with NBC Sports, except that NBC
Sports shall assign Union-represented engineers to
cover events “consistent with the jurisdictional provi-
sions of the NABET-NBCU Master Agreement
(“Master Agreement”) as if such work was under that
Agreement.” The parties will meet “promptly in New
York” to review implementation at request of either
party.
• A May 2012 “Steve Harvey Show Agreement” pro-
vides that Union-represented employees will be as-
signed to work on that show per the terms of the Mas-
ter Agreement with a few modifications specified.
• A July 21, 2014, “NBC Sports Cable Network Agree-
ment” provides that Daily Hires will work under the
terms of Article A or Article D, as determined by NBC
Sports Group; specified employees will work, “with-
out ever having to become a member of NABET-
CWA or being covered by the Master Agreement.”
• A November 2015 “Olympics Agreement” covering
the 2016 and 2018 Olympics provides for assignments
10 While the record indicates that this agreement could have
allowed an engineer in any part of the country to work for the
show, the only assignments being made were in New York.
to be offered to a specified minimum number of Un-
ion-represented employees and for arbitration of con-
flicts according to the terms of the Master Agreement.
b. Local 11 agreements
• A May 15, 1989, letter confirms an agreement al-
lowing Newswriters working under Article M
(Los Angeles) to substitute for a New York
Newswriter during his vacation weeks. The
agreement is signed for the Union solely by the
Local 11 President.
• A 1991 “pot settlement” resolved about forty
grievances which included amendments to Arti-
cle N covering New York Newswriters. The
agreement is signed by representatives of the Em-
ployer and Local 11 only.
• A January 2000 settlement agreement concerning
the assignment of Article A employees to work
for the Discovery Channel is signed only by local
representatives of the parties.
• A January 2006 agreement stated that work as-
signments to Article A engineers for a CNBC
show featuring Michael Eisner would be on a no-
precedent, non-citable basis and not create juris-
dictional claims. Such assignments would be
made under the terms of the Master Agreement,
with further such assignments in the Employer’s
sole discretion. Representatives signed on behalf
of the Employer and Local 11.10
• A March 30, 2006 Agreement provided that any
maintenance work done by union-represented
employees on equipment utilized by non-broad-
cast entities would be non-precedential and create
no jurisdictional claims. This applied only to New
York Article A engineers and did not create any
new job classifications.
• An August 2, 2006, ̀ `NY Giants Agreement con-
cerned payment of Article A rates for employees
assigned to work on coverage of a NY Giants pre-
season game.
• An August 14, 2008, agreement which settled
two Article A grievances involving employees in
New York. In part, the agreement provides that a
particular employee who had been working with-
out union representation would be given the op-
tion of becoming a NABET-represented em-
ployee covered under the “A” contract when an-
other “A” contract employee severs employment
in the applicable department. No new job classi-
fications were created as a result of this agree-
ment
c. Other Local agreements
• In 2007, 2008, and 2009, the Employer entered
Further, this agreement did not alter the compensation paid to
employees assigned to work on this show, nor did it remove any
employees from coverage of article A.
NBC UNIVERSAL MEDIA LLC 15
into three agreements concerning Article A em-
ployees' work on a computer system known as
"ROS." These agreements were signed only by
representatives of the Union locals in Chicago
(Local 41), Los Angeles (Local 53) and Washing-
ton D.C. (Local 31). The agreements provided
that employees would make no less than the
group 8 wage scale in Article A. No national
NABET representatives signed these agreements.
Importantly, no unit employees were removed
from coverage of Article A as a result of the in-
stallation of the ROS system equipment.
• In December, 2012, NBC and Local 53 entered
into a settlement concerning severance, reassign-
ment, and various other issues which arose from
the scheduled layoff of Article L employees (air
conditioning workers at KNBC) when the Em-
ployer shut down its Burbank facility.
• In 2014, the Employer entered into an agreement
regarding accretion of a large number of listed
employees working on "E! Programs" into posi-
tions under Article A. The agreement was nego-
tiated in New York and Los Angeles, with some
discussions conducted by phone. It was signed by
representatives of both Local 53 and the Sector.
In conclusion, the bargaining history shows that the parties
bargained the Master Agreements at the national level with the
help of small groups negotiating over issues of specific interest
to subsets of represented employees. While subgroups engaged
in discussions of local matters and matters pertaining to particu-
lar job classifications, there is no consistent division of bargain-
ing by individual article. In some instances, the parties bargained
over all non-article A issues together. Further, the parties do not
designate bargaining teams or individuals who are responsible
for bargaining Individual Articles.
The supplemental agreements negotiated between NBC and
various locals of the Union are not consistently applicable along
the lines of Individual Articles but rather, along geographic lines.
Where work has been undertaken in New York, for instance, per-
taining to article A employees, NBC has sometimes bargained
with Local 11 over terms, despite article A being national in
scope. Likewise, article A employees have been the subject of an
agreement between an NBC West coast representative and the
Union's (Los Angeles) Local 53, where the involved employees
were located in California. There is no contention that Article A
employees are themselves parts of different units. Thus, I con-
clude that where local bargaining has aligned with distinct Indi-
vidual Articles, this is a matter of convenience rather than evi-
dence that bargaining was separate for each Individual Article.
Based on the record, the bargaining history shows that when
dealing with unique local issues, the parties exhibited an inten-
tion to minimize the identity of separate units and to maintain a
single, comprehensive multilocation nationwide unit. Accord-
ingly, I find that this factor weighs in favor of finding a single
11 I note that the Employer did not concede it could not implement
notwithstanding the failure of each Article to ratify. Thus, this factor has
not been fully tested.
unit.
C. Contract Ratification
The Union conducts contract ratification votes among groups
of employees working under Individual Articles. It appears that
the contract is not considered ratified until each such group has
accepted it by majority vote. In instances where Individual Arti-
cles have not been ratified, the parties have negotiated further
about the terms pertaining to the relevant group(s) of employees.
Krolik testified that in 1990 the Employer chose not to put
ratified articles into effect while others were still pending ratifi-
cation. However, in the mid-1990s, the Employer apparently put
into effect the terms of some ratified provisions of the Master
Agreement while others had not yet been ratified. This led to un-
fair labor practice charges being filed with the Board by both the
Union, alleging the Employer had unlawfully implemented
terms in this piecemeal manner, and the Employer, alleging that
the Union was unlawfully refusing to execute the “contracts”
which had been ratified. Both charges were dismissed by a Re-
gional Director for noneffectuation because the parties subse-
quently reached agreement “on all contracts,” including ratifica-
tion and implementation. In his March 18, 1997, dismissal letter,
the Regional Director noted that the Union represented “12 sep-
arate units.” Contrary to the Employer’s argument on brief, I do
not find the former Director’s musings based on an administra-
tive investigation to be valuable in my analysis of the current unit
question after extensive hearings and briefings. I do note that the
Union’s position that individually ratified articles. does not war-
rant separate implementation of those articles to be consistent
with their position that the Master Agreement covers a single
unit of employees.
No other evidence was proffered regarding implementation in
the instances where some Articles have been ratified later than
others, and no evidence was proffered showing that there is any
general agreement or practice related to that situation. To the de-
gree that the evidence establishes that employees working under
each Article hold veto power over the parties reaching an overall
Master Agreement, I find that the ratification process conducted
on a multiunit basis weighs somewhat in favor of finding a multi-
unit structure.”11
D. Administration of the Contract Through
Grievance Processing
General Article XX of the Master Agreement provides that
impartial umpires for arbitration are designated by office loca-
tion and each office has its own “local grievance committee.”
The contract identifies a specific arbitrator for cases involving
more than one office. The Master Agreement, however, does not
provide different mechanisms for processing grievances on a lo-
cal or national level.
In certain circumstances, a local affiliate can file a grievance
over an issue that involves employees at multiple locations, who
are covered by different Individual Articles. The record does not
reveal that specific individuals or teams were designated by the
parties to handle grievances with respect to particular Individual
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Articles.
According to Senior Vice President of Labor Relations Oper-
ations Angel Ortiz, the practice is that the Union “designates”
grievances as local or national; generally, the Employer accepts
the Union's designation. Similarly, Krolik testified that griev-
ances were mostly handled by local personnel, with local repre-
sentatives of the parties signing settlement agreements. With re-
spect to article A, which covers employees nationwide, Krolik
testified that generally article A grievances were handled locally
by representatives of the parties who were in the city where the
dispute arose. While a rarity, when national grievances arose, the
National Union president submitted the matter and notified that
National Employer representative.
Thus, the parties process grievances according to geographic
convenience, which is not consistent with the national reach of
employees working under article A. Accordingly, the admin-
istration of the contract through the grievance procedure indi-
cates that the jurisdiction set forth in each article is mostly trun-
cated by the particular city in which the grievance arose. This
evidence militates against finding separate units based on the In-
dividual Articles.
E. Arbitration Awards Construing Contract
The arbitration awards in evidence show that neutrals have
struggled with jurisdictional issues. As• discussed in the under-
lying Clarification Decision, a 1971 arbitration concerned a for-
mer KNBC newswriter in Burbank, who was promoted to the 17
nonbargaining unit position of Senior Producer, but continued to
perform “line producer” work that he had performed as a
NABET-represented newswriter. The arbitrator determined that
“producer work” was regularly performed by both unit and non-
unit employees at KNBC and that the “transfer of work” provi-
sion expressly permitted this. The arbitrator observed that,
The nature of this industry makes it particularly difficult to
draw “hard and fast” jurisdictional lines. The record . . . reveals
that some work assignments, both within and outside the unit;
[sic] merge into one another in almost imperceptible ways. This
blurring of jurisdictional lines becomes especially apparent as
one ponders the pertinent Contract provisions dealing with
work assignment. There are several provisions . . . which con-
tain language giving NABET exclusive jurisdiction over cer-
tain kinds of work. Many other areas, particularly those involv-
ing basic decisions as to program content, are clearly within the
province of Management. In between this clear demarcation
between Company and Union jurisdiction is a twilight zone
where work might properly be assigned to NABET employees,
to non-represented employees or to both . . .
In some “transfer of work” grievances, also reviewed in the Clar-
ification Decision, the arbitrator’s findings suggest that the Con-
tent Producer position should have remained a unit position. Spe-
cifically, a 1973 arbitration considered the question of whether a
WNBC managerial employee could be permitted to perform
"field producer' work, which was often assigned to NABET-
represented newswriters. The Arbitrator found that the parties'
practice and the express terms of their contract made clear that
such work could be performed by both represented and non-rep-
resented employees, so long as, the distribution of that work was
consistent with the Employer's past practice.
Similarly, in 1988, NABET Local 41 and the Employer arbi-
trated a grievance concerning the Employer's layoff of a
NABET-represented Assignment Desk Assistant and the Em-
ployer's subsequent assignment of all work previously per-
formed by her to a non-unit position called, Researcher. The ar-
bitrator concluded that, although various tasks performed by the
Desk Assistant have on occasion been assigned to non-unit em-
ployees, the Union had "exclusive jurisdiction" over the position
of Desk Assistant. Thus, the arbitrator concluded that the Em-
ployer's transfer of the Desk Assistant functions to a non-repre-
sented Researcher position - while laying off the unit employee
who previously performed that work - violated the "Transfer of
Work" provision of the Master Agreement.
Regarding the issue of single v. multiple units, the record con-
tains a smattering of arbitral decisions. The earliest example is a
1958 Award, wherein the arbitrator considered issues arising out
of joint bargaining that NBC and ABC had conducted with
NABET. The companies took the position that the negotiations
encompassed one agreement covering all units represented by
the Union, while the Union argued that the negotiations encom-
passed separate and distinct contracts between each of the com-
panies and each of the groups of employees represented by the
Union. The issue in the decision was not precisely the existence
of multiple units under the NBC contract, but the Arbitrator con-
cluded that: “[t]he 1958 negotiations were consummated by one
contract referable to all of the separate units covered by the Mas-
ter Agreement at each Company. The signing encompassed one
contract for all groups without disturbing the separateness of the
several units and agreements.”
In a 1979 award, the arbitrator found that “desk men” (news-
writers) working under article M have the authority to reschedule
meals of camera crews working under Article A because the car-
nera crews work in “a different bargaining unit,” than the news-
writers, “even though all such employees are represented by
NABET and all are subject to the terms and conditions of the
Master Agreement.” In three decisions issued in 1980 and 1981,
an arbitrator repeatedly referenced NABET's representation of
employees at NBC in separate bargaining units delineated in the
Individual Articles of the Master Agreement.
The arbitration awards in evidence are difficult to parse and
the arbitrators have acknowledged the inherent difficulty in de-
termining whether work is, or is not, covered by the Master
Agreement. On the issue of merged units, the 1958 award is of
little value to a present determination of unit scope. But more
generally, the arbitrators’ decisions are limited to the granular
issue presented in that grievance and therefore, do not establish
an overarching rubric from which to draw guidance. Thus, I find
this factor to be neutral.
F. History of Recognition and NLRB Certifications
The Board first certified NABET as the representative of the
Employer’s employees in 1944, with a Decision and
NBC UNIVERSAL MEDIA LLC 17
Certification for a unit of technical employees and engineers.12
These employees are now covered by individual article A in the
Master Agreement.
In 1953, NABET was certified to represent publicists working
in Los Angeles. However, the Union was decertified from repre-
senting those employees after a 1964 election.
In 1955, the Board directed an election in a segment of the
NABET-represented employees, for a unit of film editors located
in Los Angeles, as sought by the International Alliance of The-
atrical Stage Employees (IATSE). As discussed previously, the
Board rejected NABET's argument that the employees at issue
had been merged with a larger unit. NBC, 114 NLRB 1 (1955).
In 1956, Local 11 was certified to represent air conditioning
employees in New York. This group is covered under article P
in the current Master Agreement.
In 1964, the Union argued in response to a decertification pe-
tition that a unit of film editors in Chicago was inappropriate,
because those employees had been merged into a nationwide
unit. The Regional Director did not agree and ordered an elec-
tion. 13 The Union won and was then certified as the representa-
tive of the Chicago film editors. Presently, all NABET-
represented editors are covered under Individual Article A, irre-
spective of location.
In 1971, NABET won an election against the incumbent un-
ion, Writers Guild of America, as the certified representative of
newswriters in New York. The certification is to NABET with-
out any mention of a local affiliate. These newswriters were ul-
timately covered in article N of the parties contract.
In 1979, Local 41 was certified to represent messengers in
Chicago; the messengers are covered in Article J of the parties’
agreement.
In 2015, NABET won an election to represent a unit of credit
technicians in Los Angeles.
The certifications in evidence show that through secret-ballot
elections, the Union won representative status of some classifi-
cations on an individual basis. On the other hand, there are a wide
range of classifications covered under the Master Agreement for
which there are no individual certifications in the record and no
other evidence about how the Union came to represent these em-
ployees.14Accordingly, although separate certifications suggest
multiple units, I cannot generalize from this evidence regarding
the overall relationship. Thus, I find that this factor is neutral.
12 In National Broadcasting Co., 59 NLRB 478 (1944), the Board cer-
tified a nationwide unit of technical and engineering employees, exclud-
ing turntable operators located at its Chicago local station. In finding the
unit appropriate, the Board acknowledged that the earliest collective bar-
gaining agreement in evidence between Respondent and NABET's pre-
decessor, dated November 27, 1940, covered technical employees, in-
cluding turntable operators, on a “system-wide basis,” but that histori-
cally the parties had excluded the turntable operators in Chicago. Id. at
482. After considering, inter alia, the nature of the work and the skills
needed to perform it, the Board concluded that “in the absence of other
compelling circumstances . . . the collective bargaining history is deter-
minative” and that a nationwide engineering unit excluding the Chicago
turntable operators but including turntable operators at all other locations
was appropriate. In short, the Board considered not only the language of
the parties’ collective-bargaining agreement, but the collective
G. Union Documents Referencing Multiple Units
The Employer introduced a number of letters and other docu-
ments in which the Union referenced “multiple units” that it rep-
resents at NBC. These include 8(d) notices from the 1980s and
1990s, where the Union provided notice to the Employer of its
intent to terminate “contracts” covering employees of NBC and
expressing the wish for the parties to meet and confer, “for the
purpose of negotiating new Agreements to cover your employees
in Bargaining Units,” of employees represented by NABET.
Further, a 2009 notice, which the Employer notes was sent less
than a month before the Union filed the instant unit clarification
petition, references a single new “Agreement” to be negotiated,
but repeats the prior references to “Bargaining Units.” Finally,
documents regarding ratification that the Union sent to NABET-
represented employees of NBC, consistently reference multiple
“units” which will vote separately, “unit-by-unit” on provisions
which apply to them.
The Employer also notes that union officials on many occa-
sions during bargaining sessions through the 1980s insisted
forcefully that it represented separate units of employees. As re-
lated in the Employer’s brief, one Union negotiator in the 1970s
and 80s seemed to taunt the Employer with the possibility of the
Employer going to the NLRB to seek a single unit. The same
negotiator insisted in 1984 that he was trying to, “preserve the
integrity of each unit. I won't talk about this [Sideletter concern-
ing computers] if it applies to more than one unit.”
This evidence tends to indicate the existence of multiple sep-
arate units.
V. THE CONTENT PRODUCERS
A. Application of the Wholistic Analysis and the “CBS Fac-
tors” to Determine Unit Scope
Based on the record evidence and the wholistic analysis
above, in summary, although the Individual Articles partially set
the terms for certain classifications of employees, the articles
must be interpreted in conjunction with the General Articles and
Sideletters. In addition, by 2010, almost all of the represented
employees were working under Article A. Thus, the structure of
the Master Contract weighs in favor of finding a single unit.
For decades, the parties have bargained the Master Agree-
ments at the national level and neither side designates different
teams to bargain the Individual Articles. The supplemental local
agreements arise on an ad hoc basis and do not necessarily align
bargaining history and the nature of the work at issue in determining the
appropriate unit.
13 The Regional Director stated in his direction of election that the film
editor unit had originally been certified in 1951 pursuant to a consent
agreement, after which the unit was included in the parties' master agree-
ment under its own “separate and distinct ‘contract.’”
14 The Court asked whether the mode of recognition was relevant.
While certifications and voluntary recognition are relevant to processing
decertification petitions, the mode of recognition is not determinative in
unit clarifications. CBS, 208 NLRB 825 (1974)(collective-bargaining re-
lationship established by voluntary recognition; Board considers prece-
dent involving many permutations of modes of recognition and found
that multiple individually certified units can merge into a single unit as a
result of years of central negotiations).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
with the classifications in the Individual Articles. Thus, the bar-
gaining history also weighs in favor of finding a single unit.
With respect to the other record evidence adduced on this is-
sue, the ratification process conducted on a multi-unit basis
weighs somewhat in favor of finding a multi-unit structure, how-
ever, I do not accord it much weight because the practical effect
of the ratification process is unclear and untested. Regarding the
administration of the contract, the grievance process is generally
conducted in the location in which the grievance arose, or in New
York. A geographic grouping does not comport with the Em-
ployer's contention that Article A, which is national in scope, is
itself a separate unit. Therefore, grievance processing weighs
somewhat in favor of finding a single unit. The arbitration
awards do not consider factors used by the Board in determining
unit scope and therefore, I accord them little weight. Similarly,
the Union's communications referencing "units" appears to be a
shorthand reference to certain terms and conditions, and not nec-
essarily a limitation on scope. The certifications in evidence
show that some classifications were separately certified; how-
ever, the original mode of recognition is less significant than the
bargaining history in determining scope. Thus, I find that these
factors are of little value in my analysis.
Finally, as noted above, the Board in CBS, 208 NLRB 825
(1974), identified four factors distinguishing cases in which un-
ions were found to represent multiple units at a single employer:
(1) references in a master agreement to “units,” with a descrip-
tion of each unit, (2) an absence of a significant history of joint
bargaining, (3) bargaining through years for various numbers of
locations where the union demonstrated majority status, and (4)
the existence of separate agreements with no master agreement
or recognition clause expressing intent to merge separately cer-
tified units into a single unit.
Of the four distinguishing factors listed in CBS, the first is
present in the instant case—as we have seen above, the Master
Agreement includes numerous references to “units” and unit de-
scriptions appear in most Individual Articles. And, the contract
provides for the primacy of Individual Articles over the General.
However, the Master Agreement has been treated by the parties
as a tripartite agreement, wherein the Sideletters modify the Gen-
eral and the Individual Articles.
With respect to factor two, the parties have a consistent prac-
tice of nationwide bargaining for new contracts, albeit with the
use of break-out groups and occasional local negotiations over
particular groups of employees. Although the ratification vote is
conducted “article-by-article,” again, the practical effect of this
process is unclear. The reams of documentary evidence showing
the same bargaining teams, along with the parties' proposals,
show a desire to reach one contract covering the Employer's op-
erations from coast to coast. Severing a segment of this group -
at this point in the parties relationship - would destroy the stabil-
ity this industry has enjoyed for decades.
Regarding the origins of inclusion of various classifications
under the Individual Articles (analogous to distinguishing factor
three), the record demonstrates that in at least some instances,
groups of employees were separately certified prior to being cov-
ered in the Master Agreement. Some of those separately certified
groups have later been folded in with other classifications of em-
ployees under article A. I note that in 1944, the Board certified
NABET as representative of a nationwide unit of engineers.
NBC, 59 NLRB 478 (1944). In 1955, the Board found that edi-
tors and associated employees in Los Angeles were a separate
appropriate unit. NBC, 114 NLRB 1 (1955). For some time now,
the Employer’s editors and photographers have been covered by
the terms of article A, the successor to the original engineering
unit, regardless of their work location. While the parties have re-
tained some geographic demarcations, these groupings appear to
be more a matter of administrative convenience. In the over half
a century of intervening bargaining history and a corresponding
evolution in the Employer's workflow, the originally certified
separate units are all but meaningless since they have been ab-
sorbed under the Master Agreement. As the parties agreed at the
hearing, the employees covered under article A have been the
heart of the unit for years, with the other articles viewed as “pe-
ripheral.” The fact that the vast majority of employees are now
covered under article A weighs in favor of finding that the
NABET-represented employees are a single unit.
Finally, as for factor four, while there is no language explicitly
announcing an “intent to merge,” the record contains numerous
examples of arrangements that have blended some of the distinc-
tions between separate “units.” Again, Article A has absorbed
classifications previously working under other Articles, such that
some are now empty. Other Individual Articles are now defunct
as a result of technological or administrative changes in the in-
dustry and at NBC. Above all, the parties have reached numerous
side-agreements allowing for employees covered under one in-
dividual article to perform work covered under another, both via
transfer of the employee from one location to another and by mu-
tual consent that certain types of work may be performed by em-
ployees working under different Individual Articles.
Thus, I find that the Sideletters and other arrangements be-
tween the parties over the years show a course of conduct in
which the parties intended that the NABET-represented employ-
ees merged and function as a single unit.
In conclusion, neither in CBS nor in other decisions concern-
ing this issue has the Board adopted a formulaic approach to its
analysis—there is no suggestion that an evaluation of factors
weighing toward one conclusion or the other could be performed
by a mathematical calculation of “one unit” versus “multiple
unit” indicia. Rather, the Board has looked at the unique circum-
stances of the bargaining relationship before it in each case. Ac-
cordingly, I find that the parties have generally treated the repre-
sented employees as a single unit. I recognize the countervailing
indicia; however, in the over half a century of intervening bar-
gaining history and a corresponding evolution in Employer’s
workflow, I find that the originally certified or recognized sepa-
rate units have been merged.
It is undisputed that the vast majority of NABET-represented
employees work under Article A. The parties refer to Article A
as the primary “unit” while other Individual Articles are consid-
ered “peripheral.” Article A wage scales are a frequent point of
reference inside agreements concerning work that is not clearly
covered in the Master Agreement. Today, many of the Individual
Articles function less as a means of defining distinct units and
more as placeholders for classifications which were grouped sep-
arately for historical rather than current, practical reasons. The
Employer's editors were ultimately consolidated into the
NBC UNIVERSAL MEDIA LLC 19
nationwide group of technical and engineering employees cov-
ered under article A. Photographers are likewise covered under
article A. In -1990, years before the creation of the Content Pro-
ducer position, the parties agreed on the terms of Sideletter 50,
permitting employees covered by newswriter Articles H, M, and
N to use equipment used by employees covered under Individual
Article A, and permitting Article A employees to perform news-
writer work. Apparently, until the instant conflict over the treat-
ment of the content producers, the parties have operated accord-
ing to convenience with respect to the issue of separate units.
Where classifications could be logically grouped for the pur-
poses of working conditions, they have been grouped under the
Individual Articles. When because of technological advances or
other circumstances, the Employer wished to assign work to rep-
resented employees beyond the description in a particular article,
the parties bargained and resolved unique situations. In my view,
as amplified below, the same should occur here.
. . . .