Local 16, Broadcast Employees

National Labor Relations Board - Board Decisions

Dec 13, 1973

207 N.L.R.B. 880 (N.L.R.B. 1973)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 16, National Association of Broadcast Employ-
ees and Technicians, AFL-CIO-CLC and Ameri-
can Broadcasting Company, a Division of Ameri-
can Broadcasting Companies, Inc. and Local Union
No. 3, International Brotherhood of Electrical
Workers, AFL-CIO and Madison Square Garden
Center. Case 2-CD-457
December 13, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by American Broadcasting Compa-
ny (hereafter ABC), on May 14, 1973, alleging that
Local 16, National Association of Broadcast Em-
ployees and Technicians, AFL-CIO-CLC (hereafter
NABET), has violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring the assignment of
certain work described below to employees repre-
sented by NABET rather than to members of Local
Union No. 3, International Brotherhood of Electrical
Workers, AFL-CIO (hereafter Local 3), who are
employed by Madison Square Garden Center (here-
after MSG or the Garden). A hearing was held
before Hearing Officer Mary W. Taylor on June 11,
12, 25, and 26, 1973.
All parties appeared at the hearing, with Local 3
appearing only to state it would not participate.
MSG participated on the first day, sent a representa-
tive on the second day of the hearing for the purpose
of "taking notes," and then joined Local 3 and
refused to participate further. All parties were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. ABC, NABET, Local 3, and
MSG filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that ABC is a
Delaware corporation with its principal office and
place of business located at 1330 Avenue of the
Americas, New York, New York, and is engaged in
the operation of television and radio stations. Its
gross revenues from said operations exceed $10
million per annum, and during the past year it has
purchased goods and materials valued in excess of
$50,000 directly from firms located outside the State
of New York. Accordingly, we find that ABC is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
At the hearing it was stipulated, and we find, that
NABET and Local 3 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The parties stipulated, and we find, that the dispute
concerns the assignment or performance of the work
of manipulating and/or clearing video and micro-
phone cable during rehearsal, broadcast, or video
taping by ABC of events originating in the Madison
Square Garden Center.
B. Background
In telecasting events, ABC frequently employs
moving cameras. In order to adequately utilize the
moving camera it is necessary to employ the service
of a cableman or utilityman whose function is to
insure the free mobility of the camera by moving,
manipulating, or clearing the cable attached to the
camera. According to ABC, this work has always
been performed by its employees who are members
of NABET. The cable itself runs from a central
power source, usually in the form of a mobile truck
which is, for all practical purposes, a mobile
television studio. Thus, when ABC broadcasts an
event away from its television studio (a remote), the
truck will be located at a predetermined location and
cable will be strung from the mobile unit to a
predetermined camera location and, there, connected
to the camera. ABC utilizes this procedure at most
remote broadcasts including those emanating from
MSG.
When ABC utilizes the mobile unit at MSG, in
deference to the fact that MSG is a Local 3 house,
207 NLRB No. 137
LOCAL 16, BROADCAST EMPLOYEES 881
the cable is run from the mobile unit to the camera
location by Local 3 members.' The actual adjoining
of the cables both to the unit and camera is
performed by members of NABET and any cable
move incident to the movement of a camera is,
according to ABC, performed by NABET employ-
ees.
On those occasions when ABC, because of other
broadcast commitments, is unable to utilize a mobile
unit for a Garden telecast, it has leased the necessary
equipment from Hughes Sports Network which
maintains a semipermanent broadcast facility in the
Garden.2
On March 23, 1973, ABC rented Hughes equip-
ment in order to video tape a Russian-American
gymnastics competition at the Garden. While the
show was on the air, Local 3 employees grabbed the
cable attached to the moving cameras and asserted
the work in dispute was properly theirs. ABC
Program Administrator John Martin, stationed in the
control room at the time, was informed that Local 3
personnel had grabbed the cables and that NABET
personnel had balked. At this time, Alan Fields, a
Garden executive came into the control room and
Martin asked him what was going on. Fields
shrugged his shoulders and said he didn't know.
Because the show was already on the air, Martin
could not leave the control room. The dispute
resulted in the competition being broadcast without
moving cameras. One of the NABET officials
informed James Nolan, NABET president, of the
incident. Nolan was in San Diego, California,
negotiating a renewal of the ABC/NABET collec-
tive-bargaining agreement. He informed ABC execu-
tives that if he had known Local 3 members would
move the cable he would have gone to New York
and pulled his men out of the Garden and that if it
happened again there would be trouble.
The next telecast involving moving cameras was
1 Although ABC and MSG are not parties to a written contract for most
of those cases where ABC telecasts a Garden event , there are occasions
where they will sign a contract prior to telecast. One of those contracts,
which, according to ABC, is a standard form, is in evidence and indicates
that the role of stringing the cable between the central power source and the
cameras is properly NABET's. There is no clear testimony on why the
distribution of the work arose, but the characterization of the distribution as
"deferential" was made by numerous ABC employees.
2 Whenever Hughes equipment is leased there is a different distribution
of work occasioned by previous disputes between ABC and NABET which
have gone to arbitration The net effect of those awards is that NABET
members retain jurisdiction over equipment which ABC leases if the lessor
of the equipment performs some purposeful activity it would not otherwise
perform in conjunction with ABC's takeover of the equipment. Thus, ABC
has an arrangement with Hughes whereby the latter's employees , members
of Local 1212, IBEW, dismantle and disassemble all Hughes equipment and
relocate the equipment in a central storage location in order to substantially
duplicate those conditions under which ABC would enter the Garden had it
been utilizing a mobile unit . NABET members then reassemble and relocate
the equipment at those locations mapped out in the prepickup survey. Any
rearranging of table is, again, deferred to Local 3 All cable moves incident
to the move of a camera are, according to ABC, accomplished by NABET
the ABC video taping of a Chinese-American
gymnastics event emanating from the Garden on
May 21, 1973. Again ABC leased the Hughes
equipment . At the customary survey before the
pickup, where Garden and ABC officials meet to
discuss, inter alia, camera locations , MSG informed
ABC that Local 3 members would be handling the
cable for the Chinese-American competition. Prior to
the survey, MSG Executive Fields had told ABC
Executive Martin that MSG would have to support
its own union and that all future cable moves would
be handled by Local 3 personnel. Aware of the
dispute surrounding the March 23 telecast, ABC
wanted to determine NABET President's Nolan's
views on the matter . ABC Official Phillip Leven
called Nolan at the behest of William Gennerich,
ABC labor relations counsel . Nolan told Levens that
if anyone from Local 3 touched the cable he would
pull his men out of the Garden and picket the jobsite.
On May 14, 1973, ABC charged NABET with a
violation of Section 8(b)(4)(D). On May 21, 1973,
ABC and NABET entered into a stipulation for
entry of temporary injunction enjoining NABET
from picketing the Garden for the purpose of forcing
ABC to assign NABET, rather than Local 3, the
work in dispute.
C. Contentions of the Parties
Both Local 3 and MSG have refused to participate
in the 10(k) hearing on the grounds that the dispute
in question is not one of which we should take
cognizance because it is a dispute between two
employers concerning the contractual power of either
to assign the work in dispute. MSG would, then, have
us read Section 8(b)(4)(D) as limited to those
disputes involving a single employer, empowered to
assign work to two competing employee groups. It is
MSG's contention that it and it alone controls those
conditions under which ABC enters the Garden. As
personnel. Upon completion of the telecast, NABET disassembles and
dismantles the equipment , returns it to the central location , and Hughes
employees reassemble and relocate the equipment at its original position.
The cable is left behind by NABET employees and is apparently relocated
by Local 3 members . There is evidence that the presence of Hughes , in some
respects, alters the relationship between ABC and MSG because of Hughes'
contract to pickup certain events produced by Madison Square Garden
Productions. However, for our purposes, we conclude that whether ABC is
utilizing the Hughes facility or its own mobile equipment , the question of
jurisdiction over the disputed work is not , thereby, materially affected. ABC
has used Hughes equipment at the Garden before the events which gave rise
to the dispute occurred. On those occasions MSG took no interest in the
assignment of the work and the disputed work was performed by
technicians of NABET. Because of contractual commitments between
Hughes and MSG, when ABC leased the Hughes equipment for the
Chinese-American telecast of May 21, MSG became ABC's lessor
However, this relationship did not obtain during the broadcast of the
Russian-American competition of March 23. Thus even had MSG argued
that the disputed work is properly Local 3's when MSG is lessor of the
Hughes equipment, Local 3's'claim to the work during ' the March 23
broadcast would be inconsistent.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MSG asserts, in this posture, ABC is attempting to
utilize Section 8(b)(4)(D) for the purpose of influenc-
ing its contractual arrangements with the Garden.
Similarly, Local 3 argues on the brief that the
Board lacks jurisdiction in this type of dispute. It
joins MSG in the contention that ABC has allied
itself with NABET and, in effect, created the
jurisdictional dispute in order to influence the
contractual standing of ABC and MSG. In this
regard, it is significant to note that ABC and MSG
rarely enter into written contracts delineating the
rights and obligations of each party. ABC, more
often than not, enters the Garden either by verbal
authorization received from the Garden or by
contract with a third party promoter who holds the
broadcast rights to the event emanating from the
Garden.
Both Local 3 and MSG further argue that the
application of Section 8(b)(4)(D) to the current
controversy would constitute an unprecedented
extension of the statute encompassing activity which
Congress did not intend to proscribe in enacting
Sections 8(b)(4)(D) and 10(k) of the Act.3
ABC and NABET, on the other hand, view the
controversy as a classic jurisdictional dispute insofar
as there exists a definable work task to which two
employee groups simultaneously lay claim and, in
furtherance of one groups claim to the work, certain
activity proscribed by the Act has been threatened.
Both ABC and NABET argue that the role of MSG
in the instant dispute is in the nature of an
"afterthought," resulting from pressure either direct-
ly or indirectly brought to bear upon MSG by Local
3.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
We find that there is no effective method for the
voluntary adjustment of this dispute.
Since both Local 3 and MSG, for the most part,
refused to participate in the 10(k) hearing, we are
confronted by a record which is substantially devoid
3 Inasmuch as the issues presented are adequately delineated in the
briefs and in the record , the request of Local 3 and MSG for oral argument
before the Board is, hereby, denied.
4 On June 8, 1973, we denied Local 3's request for special permission to
appeal to the Board from the order of the Regional Director denying Local
3's motion to quash the notice of hearing. Because the hearing had
commenced on the morning of June 11, 1973, counsel for the parties were
not notified of our denial of Local 3's request until later that afternoon, at
which time Local 3 had withdrawn from the hearing . We do not consider
receipt of our denial until after Local 3 had withdrawn to be a denial of due
process, as Local 3 contends. Local 3 had received the Regional Director's
of the considerations which normally form the basis
for the judgment we exercise in settling jurisdictional
disputes. Any claim to the work that Local 3 may
justifiably hold is not evidenced of record. For this
reason, we have given careful consideration to the
jurisdictional arguments advanced in the briefs by
Local 3 and MSG.4 But we conclude they are
insufficient to take the present dispute out of the
operation of the statute. We base this conclusion on
several factors, among them the position of MSG in
regard to the dispute at its outbreak. The record
reveals that ABC has conducted hundreds of remote
broadcasts out of the Garden, at least 50 of which
involved moving cameras. At no time in this period
did MSG ever assert its position that the disputed
work should either be performed by or assigned to
Local 3. When Local 3, through its conduct, asserted
claims to the work at the beginning of the March 23
broadcast of the Russian-American competition,
Garden Official Fields' response to ABC Executive
Martin's inquiry was to "shrug his shoulders."
Subsequently that evening, in conversation with
Martin, Fields indicated he had no idea that Local 3
would claim the work. It was only some time later,
before the pickup on May 21 of the Chinese-
American competition, that Fields indicated to
Martin that Garden management was "going to have
to support the Union." Prior to all telecasts from the
Garden, ABC provides copies of its survey of the
event to Garden officials which indicates, inter alia,
ABC's assignment of NABET personnel as cablemen
or utilitymen. The Garden was in receipt of ABC's
survey for the Russian-American competition well in
advance of the actual pickup of that event and,
nevertheless, gave no indication, until the survey for
the Chinese-American competition, that it had an
interest in the assignment of the disputed work, and,
even then, the extent of its interest was its desire to
"support the Union." Similarly, the record discloses
that MSG took no interest in the assignment of the
work in dispute when Local 3 made the same claim
at the outset of a Columbia Broadcasting System
telecast of an event emanating from the Garden on
March 17, 1973, the week previous to the Russian-
American gymnastics competition. In that event,
according to the testimony of a CBS engineer, a
Local 3 member grabbed hold of the cable attached
denial of its motion to quash the notice of hearing . Any objections to the
conduct of the hearing would not be waived by further participation in the
hearing. See Board Rules and Regulations 102.41. Additionally, Local 3 did
receive notice of our denial of the request for special permission to appeal
during the hearings and did not choose to rejoin . We further point out that
the 10(k) hearings are nonadversary in character and are designed solely to
assist the Board in making the proper award . Any anterior jurisdictional
arguments may, of course, be argued at any time, but failure to participate
in the 10(k) hearing on jurisdictional grounds will not operate to stay those
proceedings, and is accomplished at the peril of the party so choosing.
LOCAL 16, BROADCAST EMPLOYEES
to a moving camera and asserted that "in Madison
Square Garden [our] people handled all cables." The
CBS official testified that since 1947 members of its
union, Local 1212, IBEW, had uniformly handled all
cable moves incident to the movement of a camera.
That dispute was eventually resolved by virtue of the
fact that Local 3 and Local 1212 were sister locals.
More importantly, MSG took no position, at that
time, on its right to assign the same work task. We
are asked then to countenance the proposition that
an employer, merely by demonstrating, for whatever
motivation, support for an affiliated union, can,
thereby, effectively circumvent our statutory man-
date to resolve what otherwise would constitute a
classic jurisdictional dispute.
Furthermore, the view we express here is consistent
with our recent decision in Local 1228, International
Brotherhood of Electrical Workers, AFL-CIO.S In
that case, we recognized a clear jurisdictional dispute
between Local 1228 and the unorganized employees
of an Employer who held radio broadcast rights to
basketball games emanating from the Providence
Civic Center, even though the latter's manager had
indicated a substantial interest in seeing the work
assigned to the house union, Local 1228.
For these reasons, we conclude that by the conduct
of its president, James Nolan, NABET did threaten
ABC with a work stoppage on or about May 10,
1973, with an object of forcing or requiring ABC to
assign the disputed work to members of NABET
rather than to members of Local 3, that reasonable
cause exists to believe Section 8(b)(4)(D) has thereby
been violated and that the dispute is properly before
the Board for determination pursuant to Section
10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to and balancing all relevant
factors.6
1. Contract
There is in evidence a collective-bargaining agree-
ment between NABET and ABC's which indicates
that employees of NABET maintain jurisdiction over
all technical equipment utilized by ABC during
broadcast. Previous disputes between NABET and
ABC concerning the former's retention of jurisdic-
tion over the operation of equipment rented by ABC
from other suppliers are also in evidence. Those
5 205 NLRB No 167.
6 N L R.B. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
883
awards indicate that, when ABC rents broadcast
equipment from an outside source, NABET person-
nel retain jurisdiction over the operation of the
equipment if the lessor of the equipment performs
some purposeful activity on behalf of ABC in
connection with the latter's takeover of that equip-
ment . In terms of the instant dispute, it is clear that
the method by which ABC received the equipment
rented from Hughes mandates that ABC assign the
disputed work to members of NABET. The collec-
tive-bargaining agreement between MSG and Local
3, received by the Board subsequent to the close of
hearing and dated June 1 , 1969, limits Local 3's
jurisdiction to those work tasks "presently being
performed" by Local 3 members. Inasmuch as there
is no record evidence indicating the performance of
the presently disputed work by Local 3 members as
of June 1 , 1969, it is clear the jurisdictional
requirements of the Local 3/MSG collective-bargain-
ing agreement do not encompass the disputed work.
2. Past practice
Numerous ABC employees and officials testified
that, with one irrelevant exception , the work in
dispute has always been performed by NABET
members. Although MSG alluded to the fact that
affidavits to be furnished the Board would indicate
that the disputed work has, for the past 6 months,
been assigned by the Garden to Local 3 and that
Local 3 has , in that time , performed the work, no
such affidavits have been received . With regard to
past practice in the industry , a representative of
Columbia Broadcasting Systems testified that since
1947, the union affiliated with CBS has consistently
performed the disputed work. Thus, ABC's past
practice and the practice in the industry as a whole
support the claim to the work of members of
NABET.
3. Skills and efficiency
Because cablemen are oftentimes cameramen also,
they can relieve or fill in for the cameraman at any
given moment. Because the movements of the
cameras are often hurried, a degree of teamwork is
necessary in permitting fluid camera mobility. In
certain circumstances, the broadcasts will employ a
portable, i.e., hand-held, camera. In such cases it is
an additional function of the cablemen to guide the
cameraman whose vision is limited to the area
covered by the viewfinder of the camera. In these
situations, the cableman must also be able to perform
7 The collective-bargaining agreement expired March 31, 1973 The
record discloses the parties have been operating under the expired
agreement. The outcome of negotiations toward a new agreement is not of
record
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjustments and repairs on the hand-held camera
since the cameraman cannot reach the cause of any
malfunctions. There is testimony that to realize the
maximum potential of the hand-held cameras the
cameraman must have confidence in the ability of his
cableman. Additionally, NABET members, whether
utilizing moving cameras or hand-held cameras, have
developed certain techniques including hand signals
which facilitate operation of the camera.
From the standpoint of efficiency, there is testimo-
ny that the teamwork involved between cameraman
and cableman is related to the manpower needs of
any given telecast. Additionally, ABC contends that
control over an operation so integrally related to
actual telecast would be diminished if Local 3
members performed the disputed work.
In our view, the factors of skill and efficiency
clearly favor members of NABET over members of
Local 3.
CONCLUSION
Having considered all pertinent factors, we con-
clude that, in view of ABC's collective-bargaining
agreement with NABET, the past practice of ABC in
assigning the disputed work, the overall industry
practice, the skills required for performance of the
disputed work, and the added efficiency that per-
formance by members of NABET would permit,
employees represented by NABET are entitled to
perform the disputed work. Accordingly, on the basis
of the entire record, we shall determine the existing
jurisdictional controversy by awarding to the em-
ployees represented by NABET, rather than to
individuals represented by Local 3, the assignment or
performance of the work of manipulations and/or
clearing video and microphone cable during rehears-
al, broadcast, or video taping by ABC of events
originating in the Madison Square Garden Center.
The present determination is limited to the particular
controversy which gave rise to this proceeding.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees known as cablemen or utility men
employed by the Employer, American Broadcasting
Company, and represented by Local 16, National
Association of Broadcast Employees and Techni-
cians , AFL-CIO-CLC, are entitled to perform the
work of manipulating and/or clearing video and
microphone cable during rehearsal, broadcast, or
video taping by ABC of events originating in the
Madison Square Garden Center.