Directors Guild of America, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1978

239 N.L.R.B. 863 (N.L.R.B. 1978)

DIRECTORS GUILD OF AMERICA. INC.
Directors Guild of America, Inc. and KHJ-TV, Divi-
sion of RKO General, Inc.' and Local Union, 45,
International Brotherhood of Electrical Workers
Local Union 45, International Brotherhood of Electri-
cal Workers and KHJ-TV, Division of RKO Gen-
eral, Inc. and Directors Guild of America, Inc.
Cases 31-CD-192 and 31--CD-193
December 18, 1978
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN FANNING AND MEMBERS JENKINS \[I)
MURPHIt
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by KHJ-TV, Division of RKO
General, herein called the Employer, alleging that
Directors Guild of America, Inc., herein called
DGA, and Local Union 45, International Brother-
hood of Electrical Workers, herein called IBEW, had
violated Section 8(b)(4)(D) of the Act.
Pursuant to notice, a hearing was held before
Hearing Officer Trudi C. Ferguson on July 18 and
August 4, 1978.2 All parties appeared and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that RKO
General, Inc., maintains 16 radio and television sta-
tions throughout the United States, including KHJ-
TV, which has its principal place of business in Los
Angeles, California. During the past year, the Em-
ployer had a gross annual volume of business in ex-
cess of $500,000. The parties also stipulated, and we
find, that the Employer is engaged in commerce or
an industry affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and it will effectu-
The name o' the Charging Party appears as amended at the heanng
2 All dates herein 1978.
ate the purposes of the Act to assert jurisdiction
herein.
II THE I ABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Directors
Guild of America and Local Union 45, International
Brotherhood of Electrical Workers, are labor organi-
zations within the meaning of Section 2(5) of the Act.
III TIHF DISPL TE
A. Background and Facls of the Dispute
In May the Employer installed an electronic char-
acter generator, known in the trade as a Compositor
I and assigned its operation to graphic artists repre-
sented by the Guild. The Compositor I is a compu-
terized machine with a keyboard similar to that of a
typewriter. The operator types the graphic on the
keyboard, and the graphic appears on a screen beside
the keyboard. The operator also uses the keyboard to
adjust the graphic. When the operator is satisfied
with the graphic, he uses the Compositor I to pro-
duce an electronic recording of the graphic on a disk.
This disc is taken to the control room where a techni-
cian, represented by the IBEW, places it in a Com-
positor I and at the proper time pushes the recall-to-
air button on the Compositor I and it appears on the
television screen.
Graphics are used for various announcements and
advertisments; e.g., news announcements may be
written that "crawl" across the screen, credits at the
end of a show can be made to "roll" up and off the
screen, and athletic scores and election returns can
be placed on the screen. Graphics are used not only
to advertise client products but also are used by the
station to advertise programs that will be shown
throughout the day or week. Graphics are still pre-
pared by graphic artists, who are represented by the
DGA. When not using the Compositor I, graphics
are created by using one of three methods. The art-
ists prepare letters and numbers on cards or slides.
When cards are used, the artist places the card on an
easel. A cameraman, represented by IBEW, focuses a
camera on the card and this picture appears on a
monitor in the control booth. A technician, also rep-
resented by the IBEW, puts the picture on the air.
For a slide, the artist photographs the card. The slide
is projected into a camera and the picture appears in
the control booth to be placed on the air by the
IBEW-represented technician. If a graphic is desired
to "crawl" across the screen, a graphic artist creates a
tape on a special typewriter. The tape is put into an
automatic camera and the "crawl" mechanism is
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned on. The picture appears in the control booth
and an IBEW-represented technician places it on the
air.
Shortly before the installation of the Compositor I
system, the employer requested a meeting with both
Unions. At the meeting the Employer suggested that
the Unions submit a proposal regarding the assign-
ment of the work. The Unions were unable to reach
agreement, and on May 3 the Employer assigned the
work to employees represented by the DGA. On
May I the IBEW sent a letter to the Employer threat-
ening to "take all legal action necessary . . . includ-
ing but not limited to a strike" should its members
not be awarded the work?. On May 2 the DGA in-
formed the Employer that it would strike if the work
were not assigned to its members. The Employer, on
May 3, filed 8(b)(4)(D) charges alleging that the
DGA and the IBEW had threatened to strike in or-
der that the disputed work be assigned to their mem-
bers.
B. The Work in Dispute
The work in dispute involves the operation of key-
boards of electronic character generators for the pur-
pose of creating, composing, and modifying graphics
used for television broadcasts at the Employer's Los
Angeles, California, television station.
C. The Contentions of the Parties
The Employer contends that the disputed work
should be left as assigned to employees represented
by the DGA; that the dispute is properly before the
Board; and that the assignment is consistent with ef-
ficiency and economy, training and skills required,
job impact, collective-bargaining agreements, indus-
try and area practice, and the Employer's preference.
The DGA basically puts forth the same contentions
and the fact that it has been certified by the Board.
The IBEW contends the dispute is not properly be-
fore the Board and that the work should be assigned
to employees it represents consistent with the collec-
tive-bargaining agreement and industry practice.
D. Applicability of the Statute
The IBEW contends that there is no reasonable
cause to believe that a violation of Section 8(a)(4)(D)
has occurred. The IBEW alleges that had the Em-
ployer bargained in good faith over the operation of
the Compositor I the disagreement could have been
ISubsequently. the IBEW filed an unfair labor practice charge alleging
violation of Sec. 8(a(lI) and (5) of the Act. The Regional Director for Re-
gion 31 refused to issue a complaint based on this charge.
resolved among the parties. However such a conten-
tion does nothing to change the fact that both
Unions have threatened to strike the Employer if the
work in dispute is not assigned to employees they
represent. We therefore conclude that there is rea-
sonable cause to believe that a violation of Section
8(b)(4)(D) has occurred. The record contains no evi-
dence that there exists an agreed-upon method for
the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly, we
find that this dispute is properly before the Board for
determination.
E. Merits of the Dispute
The following 'actors are relevant in making the
determination of the dispute before us:
I. Collective-bargaining agreements and Board
certification
The DGA was certified on September 19, 1967.
The evidence does not show that the IBEW has been
certified by the Board. However, in view of the fact
that the electronic character generators have only re-
cently been installed in the Employer's station, the
1967 certification is not helpful to this determination.
Both Unions have collective-bargaining agree-
ments with the Employer. The DGA jurisdictional
clause allows its members to operate any equipment
which is a substitute for any equipment or process
which is presently being used. The IBEW agreement
gives it jurisdiction over the operation of all electrical
equipment, including the making of disc recordings.
The IBEW also argues that the negotiating history
is in its favor. During the 1976 negotiations the Em-
ployer proposed, and later withdrew, a modification
to the IBEW jurisdictional clause which would spe-
cifically except electronic character generators from
the jurisdiction of the IBEW. The Employer re-
sponds that this proposal was only intended to clari-
fy existing language. The IBEW further contends
that in a meeting between it and the Employer, prior
to the installation of the Compositor 1, the Employer
offered a $75 payment to all IBEW technicians in
return for certain flexibility the Employer felt neces-
sary in the operation of the Compositor I. The IBEW
claims that this proves that the Employer acknowl-
edged its jurisdiction over the operation of the Com-
positor I. We disagree.
The IBEW is seeking the best of all possible
worlds. On the one hand, it argues that there is not
reasonable cause to believe that Section 8(b)(4)(D)
has been violated because the Employer did not bar-
gain at length over the operation of the Compositor
864
DIRECTORS GUILD OF AMERICA. INC.
1. On the other hand, it claims that by bargaining the
Employer has acknowledged IBEW jurisdiction. We
do not believe, based on the facts of this case, that
the Employer, in attempting to avoid a potential
problem, was thereby acknowledging I BEW jurisdic-
tion of the work in dispute.
However, we find that both jurisdictional clauses
are sufficiently conflicting and that this factor, there-
fore, favors neither party.
2. Industry and area practice
The IBEW introduced portions of collective-bar-
gaining agreements covering three networks, ABC,
CBS, and NBC. Under these agreements the opera-
tion of the character generators by nontechnicians is
limited to "sophisticated. complicated or advanced
graphic or scenic displays or effects."
The Employer introduced portions of 23 collec-
tive-bargaining agreements of television stations out-
side the Los Angeles area where nontechnicians op-
erate keyboards of character generators in whole or
in part. The Employer also introduced evidence of
three local television stations where nontechnicians
operate the character generators in a manner similar
to the assignment made by the Employer. The IBEW
argues that nontechnicians are allowed to operate the
keyboards only as exceptions to the overall jurisdic-
tion of technicians and that a quid quo pro, not here
present, must have been negotiated. The reason for
that work assignment is not, however, material in this
context.
We find, based on the record before us, that the
practice is mixed and that this factor favors neither
party.
3. Relative skills
Although the Employer sent graphic artists to a
training school, it does not appear that the actual
operation of the Compositor I is difficult. However,
it is evident that a great many artistic judgments
must be made before the graphic is recorded. These
judgments include type selection, format, color, and
the overall formulation of the presentation that will
appear on the screen. The technicians, based on the
record before us, have not demonstrated any of the
creative skills necessary to make these judgments.
We therefore find that the artistic skill required in the
operation of the Compositor I places this factor in
favor of the graphic artists.
4. Economy and efficiency of operation
Certain television programs may require the use of
cards, slides, and Compositor I graphics. As indi-
cated earlier, cards and slides have always been pre-
pared by graphic artists. Additionally, should the
Compositor I system malfunction, it would be neces-
sary to produce the graphics by cards, slides, or elec-
tronic tape. Graphic artists can presently prepare all
types of graphics and thereby coordinate all the
graphics for on-the-air viewing. We find that dividing
this integrated operation would not be efficient.
Currently, under the IBEW contract, freelance
technicians can only be hired for a 40-hour work-
week. Freelance DGA members can be hired on a
daily basis. Consequently, it would not be economi-
cally feasible to hire a technician to cover for an ill
employee or to assist in the preparation of graphics
during peak periods.
Based on the foregoing we find that the factor of
economy and efficiency of operations favors those
employees represented by the DGA.
5. Job impact
The Employer's witnesses testified that awarding
the disputed work to IBEW-represented employees
would result in the layoffs of two graphic artists. The
IBEW claims that this is only a scare tactic used to
encourage the DGA to maintain its claim for the
work in question. We disagree. It follows that should
work which was performed by employees in the
graphic arts department be reassigned to other em-
ployees there would be a reduction of work in the
graphic arts department, and, consequently, with less
work to perform, fewer employees would be needed.
However. with the assignment of the disputed
work to employees represented by the DGA there
would he no loss of jobs for the technicians. They are
still responsible for placing the graphics on the air
and for the installation and maintenance of the Com-
positor I system. We therefore find that this factor
favors awarding the work to graphic artists.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors, we conclude that em-
ployees who are represented by the DGA are entitled
to perform the work in dispute. We reach this conclu-
sion relying on the Employer's preference and assign-
ment, skills required, job impact, and the fact that
economy and efficiency are furthered by such assign-
ment of the work. In making this determination, we
are awarding the work in question to employees who
are represented by the Directors Guild of America,
Inc., but not to that Union or its members. The pres-
ent determination is limited ro the particular contro-
versy which gave rise to this proceeding.
865
DECISIONS OF NAFIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
I. Employees of KHJ-TV, Division of RKO Gen-
eral, Inc., who are represented by Directors Guild of
America, are entitled to perform the work of operat-
ing the keyboards of electronic character generators
for the purpose of creating, composing, and modify-
ing graphics used for television broadcasts at the
Employer's Los Angeles, California, television sta-
tion.
2. Local Union 45, International Brotherhood of
Electrical Workers, is not entitled, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to force or
require KHJ-TV, Division of RKO General, Inc., to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union 45, In-
ternational Brotherhood of Electrical Workers, shall
notify the Regional Director for Region 31, in writ-
ing. whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above deter-
mination.
866