Metromedia, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 486 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metromedia, Inc.-KMBC-TV and International
Photographers of the Motion Picture Industry,
Local 666, IATSE (AFL-CIO). Case 17-CA-6831
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 18, 1976, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party filed exceptions and supporting briefs, the
Party in Interestl filed a limited cross-exception and
a brief in support thereof and in all other respects in
support of the Administrative Law Judge's Decision,
and Respondent 2 filed a brief in support of the
Administrative Law Judge's Decision.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The relevant facts are, briefly, as follows:
Respondent is engaged in commercial television
broadcasting and operates, among others, Station
KMBC-TV in Kansas City, Missouri. On April 16,
1974, the Charging Party, hereinafter called IATSE,
was certified as the exclusive bargaining representa-
tive of Respondent's news department motion
picture cameramen.3
Thereafter, on August 5, 1974, Respondent and
IATSE held their first bargaining session, but no
specific proposals were made by either party. On
November 14, 1974, the parties held another bargain-
ing session at which Respondent proposed a contract
including, inter alia, the following clauses, which read
in pertinent part: 4
Local Union 1259, International Brotherhood of Electrical Workers
(AFLCIO), appeared at the hearing as Party in Interest.
2 Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
3 Typically, news department cameramen spend approximately 60
percent of their time away from the television station gathering news,
usually accompanied by a reporter. For this purpose, the cameramen are
supplied with company cars so they can look for newsworthy items and
monitor police and fire department communications. Although generally
accompanied by a reporter, cameramen also work independently and
determine for themselves the composition, angles, and length of a particular
scene. Furthermore, in certain "spot news" items, such as fires or wrecks,
which require immediate coverage, the cameraman's job becomes somewhat
like that of a photojournalist since he alone determines the content and
composition of a particular scene.
232 NLRB No. 76
Section 5.01 Duties of Cameramen
News Cameramen may be assigned by the Station
to operate portable video cameras and associated
equipment.
Section 5.02 Performance of Cameramen's
Work by Others
Nothing herein shall be deemed to prohibit the
performance of any of the work of Cameramen,
as set forth in Section 5.01, by persons who are
not Cameramen and therefore, not covered by the
terms of this Agreement.
Also at that meeting Respondent and IATSE first
discussed the latter's jurisdiction over the minicam, a
new portable video camera being introduced for
widespread use throughout the television industry. 5
Arthur Beeman, principal negotiator for IATSE at
the first bargaining sessions, testified that he agreed
to section 5.01, but not to section 5.02. He also stated
that in his opinion Respondent, by proposing section
5.01, gave exclusive jurisdiction over minicams to
IATSE.
On December 10, 1974, another bargaining session
was held but there was no discussion of the minicam
issue. Between December 1974 and June 1975,6 a
hiatus in bargaining occurred, in part because
Beeman was ill for a substantial period of time.
Thereafter, on June 4, the parties resumed negotia-
tions with Bernard Mamet as chief negotiator for
IATSE.
At the June 4 meeting, Robert Pantell, Respon-
dent's chief labor negotiator, told Mamet that
Respondent had negotiated a new contract with the
Party in Interest, hereinafter called the IBEW, which
represented all Respondent's engineers. 7 Pantell went
on to state that the new IBEW contract provided for
the engineers to have exclusive jurisdiction over the
operation of minicams and that, as a consequence,
the issue of minicams was outside the realm of
bargaining between Respondent and IATSE. Mamet
responded that Respondent's action violated
I Contrary to the Administrative Law Judge's finding, the record
indicates clauses 5.01 and 5.02 were proposed at the November 14, 1974,
bargaining session rather than the first meeting in August.
I Although the minicam utilizes tape instead of film, it is the functional
equivalent of the film camera which has been operated almost exclusively by
cameramen in the IATSE bargaining unit. Like the television camera,
however, the minicam can also be used for direct broadcast from local
points.
6 All dates hereinafter are 1975 unless otherwise indicated.
I The engineers' duties include operation of in-studio television cameras
and videotape recording apparatus, maintaining equipment, and operating
transmitters both directly and by remote control. These employees are
stationed at two sites, one in the west section of Respondent's studio facility
and the other at the Metromedia transmitter apparently some distance from
the station. Engineers perform no newsgathering work and they have never
covered news events.
486
METROMEDIA, INC.-KMBC-TV
IATSE's certification and constituted an unfair labor
practice. Mamet also requested a copy of the new
IBEW contract.
By a letter dated June 6, Pantell detailed Respon-
dent's negotiations with IBEW and stated that "the
new Engineering agreement does not alter the
exclusive jurisdiction historically held by the Engi-
neers ... ." The letter further stated that "the new
agreement creates a new category of Engineer; one
who is assigned to the coverage of news and special
events." After receiving this letter, Mamet reiterated
his request for a copy of the IBEW contract at a
negotiating session on June 17, and Pantell stated
that he could not give Mamet a copy until the
contract had been "approved." 8
At the next meeting, held on July I, Pantell
proposed certain severance benefits for IATSE unit
employees in the event they were laid off as a result
of reduction in the work force caused by use of the
minicam. However, Respondent's proposals also
gave it the right to discharge employees at will and
contained no provision for arbitration. Mamet
objected to these proposals and informed Pantell that
IATSE would file an unfair labor practice charge
based upon Respondent's action with regard to the
minicam. Mamet also conditionally accepted the
layoff provisions, in the event IATSE lost the instant
unfair labor practice case.
By October 10, Respondent and IATSE reached
agreement on all issues except operation of the
minicam. At a meeting on that date, Pantell gave
Mamet a copy of the IBEW contract and Mamet
stated that the "news engineer" category created by
that agreement established "a unit within a unit."9
Pantell then proposed a "security jurisdiction" plan
whereby Respondent would guarantee that there
would be no layoff of the present five cameramen in
the IATSE unit but only for the duration of the
contract or for some other period of time to which
the parties agreed. This same proposal also provided
for cameramen within the unit to work as camera-
men under the IBEW contract' 0 and retained
Respondent's right to discharge without just cause.
Mamet then restated his intent to file an unfair labor
practice charge with respect to the operation of the
minicam and on November 3 filed the charge
initiating the instant proceeding.
R The collective-bargaining agreement was subject to approval of the
International president of the International Brotherhood of Electrical
Workers. Pantell subsequently received a copy of the approved contract on
September 2 and he gave a copy of this contract to Mamet on October 10.
9 At the time of the instant hearing, Respondent had not yet commenced
using the minicams, simply because most of the cameras were still on order;
although part of one camera had arrived at Respondent's studio, it was not
operable. The record establishes that Respondent and IBEW intended to
implement their agreement as to the operation of the minicams as soon as
practicable. Indeed, it is undisputed that a training program had been set up
for June 20 to familiarize at least two IATSE cameramen and an
undetermined number of engineers with the minicams.
The complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by granting
exclusive jurisdiction to IBEW over the operation of
minicams without sufficient prior notice to or good-
faith bargaining with IATSE. The complaint further
alleges that the granting of such exclusive jurisdiction
to IBEW will cause the work of IATSE unit
employees to be totally absorbed under the IBEW
contract and will further result in the complete
dissolution of the certified IATSE unit.
The Administrative Law Judge, relying primarily
on J. L Allen Co., 1 recommended dismissal of the
complaint on grounds that the factual situation and
the relief sought indicated that this controversy could
not be litigated in the context of a charge of unlawful
refusal to bargain but, rather, that a proceeding
under Section 10(k) of the Act was appropriate. The
Administrative Law Judge further found that in fact
Respondent had bargained in good faith with IATSE
over the minicam issue. We disagree.
In Carey v. Westinghouse Electric Corp., 12 the
Supreme Court stated that:
. ·.. [al "jurisdictional dispute" could be one of
two different, though related, species: either-(I)
a controversy as to whether certain work should
be performed by workers in one bargaining unit
or those in another; or (2) a controversy as to
which union should represent the employees
doing particular work.
The Court noted, that, in the former situation,
. . . [the] remedies for "jurisdictional" contro-
versies of that nature come into play only by a
strike or a threat of a strike.' 3
If, however, the controversy be a representational
one, involving the duty of an employer to bargain
collectively with the representative of the employ-
ees as provided in §8 (aX5), further considerations
are necessary. Such a charge, made by a union
against the employer, would, if proved, be an
unfair labor practice, as §8(a)(5) expressly
states.' 4
'0 Edward L. Wuillming, a member of IATSE's cameraman unit,
testified that, as one of the two cameramen approached about becoming
members of the IBEW unit, he was told by Claude Dorsey, news director,
that on news events the cameramen currently covering such items would use
the minicam, but on nonnews events the engineers would operate the
minicams.
" 199 NLRB 675( 1972).
t2 375 U.S. 261,263(1964).
'3 375 U.S. at 263-264.
t4 Id at 266-267.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our view, the instant case falls squarely within
the second category. Here, while ostensibly bargain-
ing with IATSE, inter alia, about the use of
minicams, Respondent, without notice to that Union,
awarded exclusive jurisdiction over the minicam
work to employees represented by IBEW, thereby
effectively foreclosing further meaningful negotia-
tions on that matter. Such precipitate and summary
action in the middle of negotiations is hardly
consistent with or conducive to good-faith bargain-
ing. Furthermore, in order to implement that
"award," Respondent was required to create a
separate category of "news engineers" within the
IBEW unit,15 and indicated to cameramen in the
IATSE unit that it wanted them to transfer into that
category so that they could operate the minicams. In
this regard, Respondent made clear to the camera-
men that, as a prerequisite to their working in the
new "news engineer" category and operating the
minicams, they (or any other IATSE unit employees
who desired to operate such cameras) would have to
become members of the IBEW unit.' 6 This conduct
was obviously undertaken in complete disregard of
the status of IATSE as the collective-bargaining
representative of the news cameramen.
Clearly, the above circumstances distinguish this
case from J. L. Allen Co., supra, and instead place the
instant proceeding squarely within the context of an
8(a)(5) and (1) refusal to bargain.'7 In J. L. Allen, the
Board found that the alleged violation of Section
8(a)(5) of the Act was
. . . merely part and parcel of the bona fide
jurisdictional work dispute which existed in this
case and was so inseparably intertwined with the
other conduct in the course of the jurisdictional
dispute that to find and remedy any such
violation would also stand in conflict with the
remedial scheme contemplated by Congress as
the exclusive means for resolution of work-assign-
s1 Under Respondent's collective-bargaining agreement with IBEW,
"news engineers," unlike other employees in that unit would, among other
things, be governed by a separate seniority system, be exempt from Federal
Communications Commission licensing requirements, and be required to
accept all overtime work requested by Respondent.
16 Pantell testified that "Before [cameramen in the IATSE unit] would
operate a minicam they would have to be under the IBEW contract."
l" In view of his dissenting opinion in J. L Allen, Member Penello would
find the 8(a)(5) violation regardless of whether Allen and the instant case are
distinguishable. Member Murphy has not previously considered the holding
of J. L Alien and does not by the discussion herein necessarily indicate that
she would adhere to that decision in circumstances different from those now
before us.
is 199 NLRB at 676.
19 We note, however, that Pantell testified that cameramen might also be
used to operate the minicam in the studio. We find it unnecessary to resolve,
insofar as it exists, any inconsistency between this testimony and that of
Wuillming, discussed supra at fn. 10.
20 We find no merit to the contention of Respondent and IBEW that the
instant charge is barred by Sec. 10(b) of the Act because they orally agreed
ment claims between competing labor organiza-
tions.' 8
Here, however, unlike J. L Allen, we are not faced
with a traditional jurisdictional dispute to be deter-
mined under Section 10(k) of the Act because, as
noted, Respondent in the midst of bargaining with
IATSE concerning the operation of minicams has
not only unilaterally assigned such work to employ-
ees in the IBEW unit, but has also announced that in
order to implement its assignment IATSE unit
employees will be transferred as well. Although it is
undisputed that employees from both the IATSE and
IBEW units will be trained to use the new equip-
ment, and it appears that IBEW unit employees will
operate minicams in the studio,' 9 it is also clear that
only employees from the IATSE unit (albeit under
IBEW jurisdiction), will operate the minicams to
cover news events inasmuch as they alone have the
requisite skills to do so. Thus, there is no question
but that, in order for Respondent to utilize the
minicams as it intends, it will have to transfer at least
some cameramen from the IATSE unit to that
represented by the IBEW.
Accordingly, on the basis of the foregoing, we find
that Respondent violated Section 8(a)(5) and (1) of
the Act2 0 by: (1) failing to bargain in good faith with
IATSE over the operation of minicams; (2) unilater-
ally assigning newly created jobs to the IBEW, an
action which will alter the terms and conditions of
employment of IATSE unit members, without notice
to or bargaining with that labor organization;21 (3)
commencing to implement its decision that employ-
ees in the IATSE unit would be required to become
members of the unit represented by the IBEW; 22 and
(4) all of the foregoing conduct, undermining the
status of IATSE as the certified bargaining represen-
tative of the employees in the appropriate unit
herein. We shall, therefore, order that Respondent
cease and desist from such unlawful conduct, and
that the IBEW would have jurisdiction over minicams on May 6 and the
charge was not filed until November 7, more than 6 months later. The
record shows that IATSE was not advised of this agreement until June 4. It
is well established that "the 6-month limitations period prescribed by
Section 10(b) does not begin to run on an alleged unfair labor practice until
the person adversely affected is put on notice, actually or constructively, of
the act constituting it." Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy
Enterprises, Inc.), 211 NLRB 222, 226 (1974).
21 See Wisconsin Contractors, Inc., 183 NLRB 872 (1970), where the
Board found that the employer violated Sec. 8(aX5) and (I) of the Act by
unilaterally assigning bargaining unit work to nonunit employees without
providing prior notice to the union to afford it an opportunity to bargain.
22 As noted above, it is undisputed that Respondent's decision to transfer
at least two IATSE unit employees to the IBEW unit was final and that it
was merely awaiting delivery of the minicams in order to carry out its plans.
Under these circumstances, although the transfers had not been fully
effectuated, it is undisputed that Respondent had made all possible
preparations to implement the decision and we therefore conclude that by
taking such action Respondent violated Sec. 8(aX5) of the Act.
488
METROMEDIA, INC.-KMBC-TV
affirmatively order that Respondent bargain in good
faith with IATSE upon request.23
CONCLUSIONS OF LAW
1. Metromedia, Inc.-KMBC-TV is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Photographers of the Motion
Picture Industry, Local 666, IATSE (AFL-CIO),
herein called IATSE, and Local 1259, International
Brotherhood of Electrical Workers (AFL-CIO),
herein called IBEW, are labor organizations within
the meaning of Section 2(5) of the Act.
3. IATSE is the certified collective-bargaining
representative of employees in the following appro-
priate unit:
All full-time and regular part-time news depart-
ment motion picture cameramen of Metromedia,
Inc., at its KMBC-TV station located in Kansas
City, Missouri, but excluding guards, supervisors,
as defined in the Act, and all other employees.
4. By failing to bargain in good faith with IATSE
over the operation of minicams; by unilaterally
assigning newly created jobs to the IBEW unit, an
action which will alter the terms and conditions of
employment of IATSE unit members, without notice
to or bargaining with that labor organization; by
taking action to implement its unilateral decision
that employees in the above-described unit would be
required to become members of the unit represented
by IBEW; and by undermining the status of IATSE
as the collective-bargaining representative of employ-
ees in said unit, Respondent has violated Section
8(a)(5) of the Act.
5. By the foregoing conduct, Respondent has
interfered with, restrained, and coerced and is
interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
6. The unfair labor practices found above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, we issue the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Metromedia, Inc. - KMBC-TV, Kansas City,
23 IATSE has requested that as part of the remedy the Board order
Respondent to assign the minicam work to employees in the IATSE unit.
Missouri, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively over the
operation of minicams with International Photogra-
phers of the Motion Picture Industry, Local 666,
IATSE (AFL-CIO), herein called IATSE, as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time news depart-
ment motion picture cameramen of Metromedia,
Inc., at its KMBC-TV station located in Kansas
City, Missouri, but excluding guards, supervisors,
as defined in the Act, and all other employees.
(b) Unilaterally assigning the operation of mini-
cams to the employees in the unit represented by
Local 1259, International Brotherhood of Electrical
Workers (AFL-CIO), herein called IBEW, an action
which will alter the terms and conditions of employ-
ment of IATSE unit members, without prior notifica-
tion to or bargaining with IATSE.
(c) Taking action to implement its decision that
employees in the above-described unit represented
by IATSE would be required to become members of
the unit represented by IBEW.
(d) Implementing that portion of the collective-
bargaining agreement granting minicam work exclu-
sively to employees represented by the IBEW.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designat-
ed to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with
IATSE over the operation of minicams at Respon-
dent's Kansas City, Missouri, facility.
(b) Notify and, upon request, bargain in good faith
with IATSE about any unilateral changes in the
terms and conditions of employment of employees in
the bargaining unit represented by such labor
organization.
(c) Rescind that portion of its collective-bargaining
agreement with IBEW granting minicam work
exclusively to employees represented by IBEW.
(d) Rescind its decision assigning operation of the
minicams to the employees in the unit represented by
IBEW and the requirement that employees in the
above-described unit represented by IATSE become
members of the unit represented by IBEW in order
to operate such cameras.
We consider such an award of work inappropriate in this proceeding and,
therefore, we deny IATSE's request.
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its Kansas City, Missouri, place of
business copies of the attached notice marked
"Appendix." 2 4 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain over the
operation of "minicams" with IATSE as the
certified collective-bargaining representative of
employees in the following unit:
All full-time and regular part-time news
department motion picture cameramen of
Metromedia, Inc., at its KMBC-TV station
located in Kansas City, Missouri, but ex-
cluding guards, supervisors, as defined in the
Act, and all other employees.
WE WILL NOT assign newly created jobs to
employees represented by the IBEW, an action
which will alter the terms and conditions of
employment of IATSE unit members, without
prior notification to IATSE and affording IATSE
an opportunity to bargain with respect to such
jobs.
WE WILL NOT take any action to implement our
unilateral decision that employees in the IATSE
unit would be required to become members of the
IBEW unit in order to operate the "minicams."
WE WILL NOT recognize that portion of the
contract with Local 1259, International Brother-
hood of Electrical Workers, assigning exclusive
jurisdiction over "minicams" to employees repre-
sented by IBEW.
WE WILL NOT make any unilateral changes in
the terms and conditions of employment of
employees in the bargaining unit represented by
IATSE without first notifying and, upon request,
bargaining in good faith with that labor organiza-
tion about such changes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed by Section 7
of the National Labor Relations Act.
WE WILL, upon request, bargain with IATSE
about "minicam" work.
WE WILL rescind that portion of the contract
granting minicam work exclusively to the IBEW.
WE WILL rescind our decision assigning opera-
tion of the minicams to the employees in the unit
represented by IBEW and the requirement that
employers in the above-described unit represent-
ed by IATSE become members of the unit
represented by IBEW in order to operate such
cameras.
METROMEDIA, INC.-
KMBC-TV
DECISION
STATEMENT OF THE CASE
JAMEs L. ROSE, Administrative Law Judge: This matter
is before me upon the General Counsel's complaint
alleging that Respondent breached its bargaining obliga-
tions to International Photographers of the Motion Picture
Industry, Local Union 666, IATSE (AFL-CIO), (IATSE or
Cameramen) in violation of Section 8(a)(5) of the National
Labor Relations Act, as amended, 29 U.S.C. § 151, et seq.
In general terms, this matter involves the question of
which employees will be entitled to operate the portable
video tape cameras (minicam) which the Company
planned to introduce to its operations in or about August
1976. At the time of the hearing, the Company had
prospectively assigned that work to employees represented
by Local Union 1259, International Brotherhood of
Electrical Workers (AFL-CIO), (IBEW or Engineers), by
which assignment the General Counsel alleges that Re-
spondent breached its bargaining obligations to the
Cameramen.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINos OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in commercial
television broadcasting operating, among others, television
station KMBC-TV located in Kansas City, Missouri. In
the course of its operations, Respondent annually does a
gross volume of business in excess of $100,000 and
490
METROMEDIA, INC.-KMBC-TV
annually receives $50,000 from advertising customers
located outside the State of Missouri. Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Photographers of the Motion Picture
Industry, Local 666, IATSE (AFL-CIO), is admitted by
Respondent to be, and I find that it is, a labor organization
within the meaning of Section 2(5) of the Act.
Local Union 1259, International Brotherhood of Electri-
cal Workers (AFL-CIO), is admitted by Respondent to be,
and I find that it is, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
The essential facts involved in this matter are not in
serious dispute. IATSE petitioned to represent Respon-
dent's news department motion picture cameramen, appar-
ently in late 1973. An election was directed on January 8,
1974, and held on February 19. Following the Company's
objections to the election, on April 3, 1974, IATSE was
certified as the exclusive bargaining representative in the
following unit:
All full-time and regular part-time news department
motion picture cameramen of Metromedia, Inc., at its
KMBC-TV station located in Kansas City, Missouri,
but excluding guards, supervisors as defined in the Act,
and all other employees.
For reasons not explained in the record, the Cameramen
and Respondent did not commence bargaining until
August 5, 1974. The parties met a second time on
November 14 and again December 10, 1974; and then did
not meet until June 4, 1975.
Material to the allegations here, at the August meeting
the Company proposed a contract which included two
clauses both set forth in article V (Jurisdiction). The sixth
paragraph of section 5.01, Duties of Cameramen, read:
News Cameramen may be assigned by the Station to
operate portable video cameras and associated equip-
ment.
And section 5.02:
Performance of Cameramen's Work by Others. Noth-
ing herein shall be deemed to prohibit the performance
of any of the work of Cameramen, as set forth in
Section 5.01, by persons who are not Cameramen and
therefore, not covered by the terms of this Agreement.
Arthur W. Beeman, who was the Cameramen's principal
negotiator in 1974, testified that he agreed to the first
quoted clause but disagreed to the second.
He also testified that it was his opinion, at least, that by
proposing the first clause, namely, that cameramen may be
assigned by the station to operate portable video cameras,
the Company thereby gave exclusive jurisdiction over
portable television cameras to IATSE.
Commencing in January 1975, the Company began
negotiating a renewal contract with IBEW, the representa-
tive of all of the engineers, whose duties included operating
and maintaining the television cameras.
During these negotiations, the Company suggested a
contract clause whereby it would be able to assign the
operation of minicams to employees not covered by the
Engineers contract. This was rejected, with IBEW taking
the position that it had exclusive jurisdiction over opera-
tion of all types of video equipment, including minicams.
Since 1942, IBEW has represented Respondent engineers
in a unit whose work jurisdiction includes all operation "of
television broadcast, facsimile, and studio equipment and
apparatus used for broadcasting, rehearsal or audition of
material by means of which electricity is applied in the
transmission or transference, production, or reproduction
of voice, sound or vision, with or without ethereal aid,
including all types of audio and video recordings."
The minicams, which the Company intended to intro-
duce into its operation and presumptively by this date has,
are lightweight portable television cameras which first
became a technological reality a few years ago. They were
first used extensively by the national networks to cover the
presidential conventions of 1972.
Respondent contemplates using the minicams, at first at
least, principally as a news gathering device although the
minicams will ultimately be used for taping advertisements
at locations and direct broadcasts away from the studio.
In any event, in contemplation of its introducing
minicams, Respondent sought to have as much flexibility
in assigning people to do this work as possible. According-
ly, during negotiations with IATSE it suggested the clause
that news cameramen "may be assigned by the station to
operate portable video cameras." It also attempted to
negotiate a similar clause in the contract with the Union
representing the other news personnel; and, in negotiations
with IBEW, it sought to have the Engineers relinquish
exclusive jurisdiction over that work. This, however, the
Engineers refused to do. Thus, the parties interpret the
1975-78 IBEW contract as recognizing exclusive jurisdic-
tion over operation of the minicams in the Engineers,
although there was no change in the work jurisdiction
language. There was, however, created a new classification
of news engineer, presumptively designating the individu-
als specifically assigned to operate the minicams.
In late 1975 an agreement between IATSE and Respon-
dent was reached, although IATSE specifically reserved its
claim to the minicam work. IATSE filed the charge herein
in pursuit of this claim.
B. Issue
The principal issue in this matter is whether Respondent
somehow breached its bargaining obligations vis-a-vis the
respresentative of its news Cameramen by agreeing with
IBEW that exclusive jurisdiction over operation of the
minicams belongs to the Engineers.
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis
In substance, the General Counsel and Charging Party
contend that the minicam is covered by IATSE unit
description, or at least jurisdiction of the minicam was
conceded during bargaining. In either case to assign the
work to another craft, even prospectively, amounts to a
refusal to bargain.
In its brief, the Charging Party argues for a remedy:
... that Respondent and the IBEW, a Party-In-
Interest in this case who participated fully in this
matter, would be ordered to rescind their agreement on
work which properly belongs to the bargaining unit of
Local 666. Further, such remedy would order Me-
tromedia to once and for all recognize the Charging
Party's certification over all cameras which cover news
and order Respondent not to insist upon the inclusion
of any provision which would require Local 666 to
accede to an unlawful grant of its work jurisdiction or
members of its bargaining unit to any other bargaining
unit.
Similarly, the General Counsel argues for "an order
setting aside Respondent's grant of mini-cam jurisdiction
to the IBEW, and a further order directing Respondent to
bargain in good faith with the Union (IATSE) on that
issue."
The Charging Party contends that the appropriate
remedy is the assignment of the minicam work to the
employees that it represents. The General Counsel does not
quite go that far, but at least takes the position that the
minicam work assignment to the Engineers should be
rescinded, and that the assignment should be the subject of
collective bargaining between Respondent and the
Cameramen. Though couched as a refusal to bargain, the
relief sought is that of a jurisdictional dispute. The work
assignment to one craft is contested with the prayed for
result that the work be reassigned to another craft.
The statutory scheme to resolve such matters is an
8(b)(4XD) and 10(k) proceeding. To decide a work
assignment dispute in an 8(a)(5) context is not appropriate.
J. L Allen Co., 199 NLRB 675 (1972), where the company
was alleged to have violated Section 8(a)(5) by "unilaterally
withdrawing work from unit employees and assigning it to
nonunit employees." In dismissing this allegation the
Board said, at 676:
. . we rest our dismissal of that allegation on our
determination that the conduct alleged to constitute a
refusal to bargain was, in fact, merely part and parcel
of the bona fide jurisdictional work dispute which
existed in this case and was so inseparably intertwined
with the other conduct in the course of the jurisdiction-
al dispute that to find and remedy any such violation
would also stand in conflict with the remedial scheme
contemplated by Congress as the exclusive means for
resolution of work-assignment claims between compet-
ing labor organizations.
It might be noted that Members Kennedy and Penello
dissented from this rationale. In any event, J. L Allen
represents the rule of decision in this case-the complaint
ought to be dismissed because the 8(aX5) allegation and
the remedy sought amounts to a jurisdictional dispute
between the two unions here. The ultimate question
concerns whose members ought to perform the work of
operating the minicam. Whether the dispute is, or was, ripe
for determination under Section 10(k) makes no difference.
It is the factual situation and the relief sought which is
critical-assignment of work by the Company to one craft
which the Union representing another craft claims.
It is argued that this is not a work assignment dispute, or
at least not one under Section 8(bX4)(D), because the work
is covered in the unit description for which IATSE was
certified. In this respect, the Charging Party and the
General Counsel state as a fact a matter which is both
subject to argument and is at the very core of this
controversy, namely, whether the minicam is a "motion
picture camera."
The only evidence offered in support of this assertion is a
statement by counsel for the Charging Party, when a
witness, and one of its cameramen to the effect that a
motion picture camera is one which "shoots pictures with
motion, otherwise it is a still picture." Such statement is
broad and conclusionary and does not really reach the
question of whether "motion picture camera" includes
both film and television.
Although stating that to him "motion picture camera"
means "the photographing of pictures that moves," counsel
for the Charging Party conceded that to "them [Respon-
dent] it means film."
At best there is no universal agreement in the industry
that the phrase "motion picture camera" contemplates
television as well as film.
Absent any persuasive evidence to the contrary, I will
accept as the appropriate, and common parlance, meaning
of the phrase to include only cameras in which the image is
captured on film. I conclude that the phrase was not meant
to include television cameras, which also, of course, project
pictures which "move."
That "motion picture camera" is not a phrase which
includes minicam is consistent with the Board's decision in
International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and
Canada (Metromedia, Inc.), 225 NLRB 785 (1976). In that
matter of a sister local of IATSE here had been certified in
a unit described as including "motion picture cameramen
and news reel cameramen." The Board found the certifica-
tion of little value in deciding the jurisdictional dispute,
and specifically found that the certification did not cover
minicams. As discussed infra, for other reasons jurisdiction
of the minicams was awarded to the cameramen's unit.
Functionally, the minicam does essentially the same job
and it is contemplated to the same job as the CP-16 film
camera now in use. It is to be used outside the studio to
film and tape news events, which would then subsequently
be put on the air. On the other hand, the minicam is in fact
a television camera and has the capability of direct
broadcast from location points. Thus, its operation, to the
extent it is a TV camera, would be worked traditionally for
the Engineers, while its operation as a news camera would
492
METROMEDIA, INC.-KMBC-TV
be worked traditionally for the news department Camera-
men.
On facts essentially identical to those presented here
concerning who ought to do this work, the Board held that
the Engineers was entitled and that the other crafts,
including soundmen, electricians, film cameramen, and TV
editors, were not. This decision was consistent with the
employer's assignment. Stage Employees Local One,
IATSE, AFL-CIO, Theatrical Protective Union (RKO
General, WOR-TV Division), 219 NLRB 1165 (1975).
But in International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the United
States and Canada supra, the Board concluded that the
news Cameramen and not the Engineers was entitled to the
work. This again was consistent with the employer's
assignment.
Thus in two relatively recent cases involving this work,
the Board concluded, in accordance with the employer's
assignment, to award the work to engineers in one and to
news cameramen in the other. The only apparent differ-
ence of substance in these cases was the employer's
assignment.
In any event, from these cases it is clear that a minicam is
not considered ipsofacto a motion picture camera or work
within a cameraman's unit.'
What the Board might do in a 10(k) proceeding involving
these unions and employer is not as important as the fact
that who is entitled to this work assignment is not without
question.
In addition to its claim that the unit certification includes
the minicam, the Charging Party and General Counsel take
the position that during negotiations Respondent awarded
jurisdiction over the minicam to the Cameramen. To arrive
at this conclusion it is argued that Respondent gave pro
forma recognition of minicam jurisdiction to IATSE by
proposing: "News cameramen may be assigned by the
station to operate portable video cameras and associated
equipment."
This proposal was part of the "Duties of Cameramen"
clause, other sections of which use the word "shall." The
fact that "may" is used indicates a precatory rather than a
mandatory assignment, even if this proposed language can
be construed as a work assignment. Furthermore, by the
next clause, the Company proposed that it could assign
Cameramen work to employees outside the bargaining
unit.
This proposal was rejected by the IATSE. Beeman,
however, testified that it was his understanding of the
bargaining situation that each of the proposed sentences or
subclauses would be taken separately and that IATSE
could agree to the Company's proposal of one sentence
and disagree to another.
I find this wholly incredulous and specifically do not
credit Beeman's testimony in this regard. I cannot believe
that, in proposing a total and rather complex contract, the
Company would take the position that IATSE could accept
such of it that it wanted while rejecting the rest. On the
contrary, I credit the testimony of Robert Parnell and find
that the negotiations were basically such that no particular
I Wisconsin Contractors, Inc., 183 NLRB 872 (1970). relied on by the
General Counsel is inapposite. A finding there was made that the new work
item would be considered settled until the total contract
was agreed to. This is traditional and logical. The
construction asked for by the Charging Party simply does
not make sense. Of course both parties could tentatively
agree to a given clause while leaving other issues open, and
such a procedure is standard. But there is no persuasive
evidence that such was the case with a minicam subclause.
In short, I conclude that at no time did the Company
advise the Union that it was granting it exclusive
jurisdiction over operations of the minicam, even if the
clause can be interpreted as meaning what the Charging
Party says it means.
On the other hand, during negotiations, beginning as
early as August 1974 and at least a year prior to the
introduction of the minicams, the Company did negotiate
with IATSE concerning the minicam work.
Further, after negotiating a contract with the Engineers
concerning operation of the minicams, the Company
bargained with IATSE concerning the effects, if any, of the
minicam assignment on the employees.
Even totally crediting the Charging Party's witnesses, I
cannot conclude that there was bad-faith bargaining on the
part of the Company with regard to the minicam issue
either with regard to the assignment of the work or the
effects that the introduction of such work might have on
the bargaining unit represented by the Cameramen.
Quite the contrary, from the totality of the record it
appears that the Company in fact bargained on request
with the IATSE and that, for reasons not fully explained,
IATSE prolonged negotiations with substantial periods of
nonactivity from the time of the certification through the
summer of 1975.
IATSE was certified on April 16 but did not have its first
bargaining session with the Company until nearly 4 months
later. The first session was held on August 5, the second on
November 14, 3 months later, and the third in December.
Then nothing happened until June 4, 1975, a period of
some 7 months.
While it appears that Beeman was in fact ill, had an
operation in March 1975 and a 2- or 3-week recovery, why
the Union did not pursue its negotiations with Respondent
is still unclear on the record, leading to the conclusion that
it was something less than rigorous in its pursuit of a
contract.
The record does not demonstrate bad-faith bargaining
on the part of Respondent. Nor does the record support the
conclusion that Respondent reneged on an agreed-to
contract clause in violation of its bargaining obligations,
even if such an act is proscribed by Section 8(aX5).
The Charging Party and General Counsel raise addition-
al arguments, e.g., that assignment of minicam work to the
Engineers will ultimately cause the Cameramen unit to
disappear; that current Cameramen will be assigned to the
minicam but then will be part of the Engineer unit; and
that Engineers assigned to the minicam will not have to be
licensed under the FCC. These may be material consider-
ations when determining the work assignment. They are
not relevant to the issue of whether Respondent bargained
in bad faith.
belonged in the production and maintenance unit, and there was no
competition for the work.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Metromedia, Inc. - KMBC-TV, is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Photographers of the Motion Picture
Industry, Local 666, IATSE (AFL-CIO), is a labor
organization within the meaning of Section 2(5) of the Act.
3. Local Union 1259, International Brotherhood of
Electrical Workers (AFL-CIO), is a labor organization
within the meaning of Section 2(5) of the Act.
4. Local 666, IATSE, is the certified collective-bargain-
ing representative of employees in the following appropri-
ate unit:
All full-time and regular part-time news department
motion picture cameramen of the Respondent at its
KMBC-TV station located in Kansas City, Missouri,
but excluding guards, supervisors as defined in the Act
and all other employees.
5. Respondent did not bargain in bad faith in violation
of Section 8(a)(5) in connection with negotiations with
Local 666, IATSE, as the exclusive collective-bargaining
representative of employees in the above-described bar-
gaining unit.
6. Respondent did not violate Section 8(aXI) or Section
8(aX)(5) of the Act by prospectively assigning the work of
operating the minicam to employees represented by Local
1259, IBEW.
7. The work of operating the minicam is not work
which is per se covered under the certification set forth in
paragraph 4 above.
8. Respondent did not violate its bargaining obligations
under Section 8(aX)(5) or (1) of the Act by refusing to
bargain with Local 666, IATSE, concerning the effects on
bargaining unit employees of such work assignment.
9. Respondent did not in any other manner violate its
bargaining obligations under Section 8(aX5) or commit
violations of Section 8(a)(l) of the Act, in connection with
the negotiations with Local 666, IATSE and/or Local
1259, IBEW.
[Recommended Order for dismissal omitted from publi-
cation.]
494