220 Television, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1968

172 N.L.R.B. 1304 (N.L.R.B. 1968)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
220 Television , Inc. and Local Union No. 4, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, and Local Union No. 6, International
Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United
States and Canada , AFL-CIO, Jointly.
220 Television , Inc. and Local Union No. 4, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO. Cases 14-RC-3624, 14-RC-3633,
and 14-RC-5689
July 25, 1968
DECISION AMENDING CERTIFICATION
By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On April 13, 1967, Local Union No. 4, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, herein called IBEW, filed with Region
14 of the National Labor Relations Board a Petition
for Certification of Representatives in Case
14-RC-5689.' IBEW filed the petition for the pur-
pose of attaining the right for separate representa-
tion of engineers and technicians included in the
bargaining unit certified by the Regional Director
for Region 14 on November 2, 1959, in Cases
14-RC-3624 and 14-RC-3633 in which the IBEW
and Local Union No. 6, International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO, herein called IATSE, were cer-
tified as joint bargaining representatives. The joint
certification covered employees in the production
and engineering departments of the Employer's St.
Louis, Missouri, television station, including film
editors, newsroom assistant , assistant director or
stage manager, and technicians.
On August 23, 1967, the Regional Director is-
sued a Decision and Order in Case 14-RC-56892 in
which he found that no question concerning
representation existed, and, accordingly, he
dismissed the petition filed by IBEW on April 13,
1967. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board
Rules and Regulations , Series 8 , as amended, IBEW
filed a timely request for review of the Regional
Director 's Decision and Order on the grounds, inter
alia, that he erred in applying Board precedent and
that the separate unit sought by the petition was ap-
propriate. IBEW filed a brief in support of its
request for review. On March 5, 1968, the Board is-
sued and duly served upon the parties a Notice To
Show Cause why the Certification of Representa-
tive issued in Cases 14-RC-3624 and 14-RC-3633
should not be amended to provide for two separate
bargaining units-a unit of engineers and techni-
cians to be represented by IBEW; and a unit of all
other employees in the unit found appropriate in
Cases 14-RC-3624 and 14-RC-3633 to be
represented by IATSE. IBEW filed a brief in sup-
port of the proposal to amend the certification, and
IATSE filed a brief in opposition thereto.
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
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in
this case including the briefs of the parties and the
replies to the Notice To Show Cause and makes the
following findings:
The Regional Director dismissed IBEW's petition
because he found that "Petitioner has been jointly
bargaining for the overall unit and in so bargaining
it has taken a position wholly inconsistent with its
attempt to establish that a question concerning
representation exists with respect to the employees
it seeks to sever."3 We disagree. As authority for
his decision, the Regional Director cited Holling-
sworth & Whitney Division of Scott Paper Company,
115 NLRB 15, and International Paper Company,
115 NLRB 17. In those cases, the petitioning union
seeking separate representational rights engaged in
joint collective-bargaining negotiations with the
other parties at times following the filing of their
representation petitions, thus estopping themselves
from prosecuting their claim to bargain severally
with the employers. Unlike those petitioning
unions , IBEW did not indulge in any additional
joint bargaining with IATSE and the Employer sub-
sequent to the time it filed its RC petition with the
Region on April 13, 1967. In fact, IBEW notified
these parties in writing on or about March 20,
1967, that if they continued to delay the execution
of the agreement proposed by the Employer and al-
ready ratified overwhelmingly by IBEW's mem-
I On August 29, 1967, IBEW filed a second petition in Case
14-RC-5773 seeking certification for the same bargaining unit as that
sought herein (Case 14-RC-5689) Since the Region has held the second
petition in abeyance pending the Board's determination in the instant case,
our decision herein is dispositive of both cases
P On August 3, 1967, a hearing was held before Hearing Officer Harold
D Kessler
3 We do not regard this case as raising orthodox severance issues because
the Petitioner already jointly represents the engineers and technicians and
seeks to continue to do so, albeit separately Further, all of the engineers
and technicians are members of the IBEW
172 NLRB No. 142
220 TELEVISION, INC.
bers, 4 it intended to ask the NLRB that "the Unit
be separated into two units -one for the Engineer-
ing Employees and one for the Film Department and
Stagehands." Also, on May 2, 1967, after IBEW
filed its petition, it informed the Employer and
IATSE that it had withdrawn its previous
willingness to enter into any joint collective-bar-
gaining agreement with them and it never did so.
Accordingly, in view of the foregoing circum-
stances, we reject the Regional Director 's finding
that IBEW's conduct was equivocal thereby disen-
titling it to prosecute its RC petition for certifica-
tion as the sole representative of the engineers and
technicians herein.
While we have rejected the Regional Director's
disposition of the case , it is manifest that IBEW's
petition should not be processed in the normal
manner so that IBEW's certification as separate
bargaining agent for the employees involved is
made contingent upon the outcome of a Board
election pursuant to Section 9(c)(1) of the Act. As
already indicated, there exists no bona fide question
concerning representation because the engineers
and technicians are currently represented by IBEW
and the question presented is one concerning the
scope or structure of the collective-bargaining unit.
Moreover, both IBEW and IATSE have disclaimed
any interest in separately representing each other's
member-employees albeit IATSE desires to con-
tinue its status as joint representative with IBEW.
In the past, the Board has in suitable circum-
stances treated representation petitions as motions
to clarify or amend existing certifications. Funda-
mentally, this administrative procedure derives
from the Board's position that its certifications of
bargaining representatives are properly subject to
its reconsideration and that, when appropriate, it
may police or maintain the logical coherence and
utility of its prior unit determinations by amend-
ment , clarification, or even revocation.5 It is true
that the Board more often encounters occasions
calling for the clarification or amendment of certifi-
cations in cases presenting unit placement issues
where only one union is involved.' However, in
Pacific Coast Shipbuilders Association, 157 NLRB
4 On March 10, 1967, IBEW sponsored a meeting to which all employees
in the certified unit had been invited for the purpose of considering the Em-
ployer's last contract offer Although no employee-members of IATSE at-
tended , IBEW's engineers and technicians voted overwhelmingly to accept
the proffered contract Execution of the contract by IATSE and the Em-
ployer had been long delayed due to a disagreement over the method of
paying wage increases to IATSE members under the proposed agreement
After IBEW filed its petition herein , IATSE and the Employer eventually
signed the contract
' The Bell Telephone Company of Pennsylvania, 118 NLRB 371, Indepen-
dent Metal Workers Union, Local No 1, 147 NLRB 1573 See also Brother-
hood of Locomotive Firemen and Enginemen , 145 NLRB 1521, where the
Board reversed Bell Telephone and exercised its inherent power to clarify
an uncertified unit
1305
384, the Board dismissed the RC petition and
amended the certification' where it found, as we
have here, that the Petitioner's request for separate
bargaining was timely and unequivocal. Con-
sequently, the Board held that despite a recent his-
tory of multiunion or joint bargaining, the Peti-
tioner was entitled to demand separate bargaining
in the amended certified unit."
Separate units are appropriate: Our consideration
of the record herein convinces us that it is feasible
in the circumstances of this case to amend the cer-
tification by providing for two separate collective-
bargaining units. Essentially, the IATSE film editors
in the film department perform their work indepen-
dently of and apart from the IBEW engineers in the
engineering department. The IATSE stagehands are
in the operations and production department. Em-
ployees in these three departments are separately
supervised by a department head. IATSE's shop
steward, who is a stagehand, testified that the func-
tions of the engineering department and the func-
tions of the film editors and stagehands are, for the
most part, completely independent of one another.'-
As for the nature of the work itself, the film editors
prepare the film for televising by inspecting, clean-
ing, and inserting or splicing in commercial
messages and other announcements. The engineers
and technicians take the prepared film from the
editors and perform the actual telecasting. The en-
gineering department is responsible for operating
and maintaining all of the television equipment and
electronic gear including the transmitters , cameras,
projectors, tape machines, and audio equipment. It
also provides and maintains all studio lighting. The
stagehand prepares cue cards, runs the
teleprompter, and constructs and emplaces produc-
tion or program sets.
There is no transfer between these groups as the
jobs are not readily interchangeable. In fact, if the
Employer requires extra engineering personnel he
notifies the IBEW unit representative. In like
fashion, the Employer requests needed film editors
and stagehands by notifying IATSE. Although the
bargaining agreements have not expressly provided
for separate seniority lists applying to the three
" Tide Water Accoc,ated Oil Company, l01 NLRB 570, Coca-Cola Bottling
Company of Nekw York, Inc, 133 NLRB 762
' In response to the Board's Notice To Show Cause, .supra, IBEW
requested that the certified unit be amended by providing for two separate
bargaining units in lieu of processing its petition for a Board election
" In Shipbuilders, .supra, as herein, the employers' association and one of
the unions in the multiunion group contended for the dismissal of the peti-
tion on the grounds that no issue had been raised as to petitioner 's majority
status and the previous history of multiunion bargaining precluded the Peti-
tioner from insisting upon separate bargaining
9 On occasion the IATSE stagehand works with IBEW engineers when he
operates the teleprompter affixed to a video camera and when on remote
telecasts a stagehand handles required lighting duties
354-126 O-LT - 73 - pt. 2 - 11
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating departments, the established practice
under the bargaining relationship shows that there
is separate departmental seniority governing
promotions, layoffs, shift selection, vacation choice,
and overtime. The bargaining history or practice
also demonstrates that the grievance and arbitra-
tion procedure is discretely oriented and imple-
mented, i.e., IBEW and IATSE each has its own
shop stewards, and grievances are processed
separately without any joint participation or
representation by the nonaggrieved union.1° Finally,
the labor agreements have included separate wage
scales and progression systems for IBEW and
IATSE member-employees, and members of each
Union participate in their own Union's health and
welfare plan.
In view of the foregoing recital of the bargaining
history and practices thereunder, we find that the
substantial degree of autonomy and separateness
displayed by these Unions in their relationships
with each other and the Employer justifies our
determination that the purposes of the Act will be
best effectuated by amending the certification to
provide for two separate bargaining units: a unit of
engineers and technicians to be represented by
IBEW, and a unit of film editors and stage hands to
be represented by IATSE. Our decision will not be
unduly disruptive of industrial stability in these cir-
cumstances because in large measure it is reflective
of an already existing situation which is fully un-
derstood and accepted by the parties." Ac-
cordingly, we find that the IBEW is entitled to de-
mand separate bargaining in the certified unit as
amended in our Order below.
ORDER
It is hereby ordered that the petitions in Cases
14-RC-5689 and 14-RC-5773 be, and they hereby
are, dismissed.
IT IS FURTHER ORDERED that the certification is-
sued in 14-RC-3624 and 14-RC-3633 be amended
so as to separate the existing joint bargaining unit
into separate units as follows:
1. All engineers and technicians in the engineer-
ing department of the Employer 's St. Louis, Mis-
souri , television station , excluding office clerical
and professional employees , guards and supervisors
as defined in the Act, stagehands , film editors, an-
nouncers , and performers to be represented by
Local Union No. 4, International Brotherhood of
Electrical Workers , AFL-CIO.
2. All stagehands , film editors and all other em-
ployees presently represented by Local Union No.
6, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of
the United States and Canada, AFL-CIO, excluding
office clerical and professional employees , guards
and supervisors as defined in the Act to be
represented by Local Union No. 6, International
Alliance of Threatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States
and Canada , AFL-CIO.
10 In this context and also as an example of the autonomy exercised by
IBEW and IATSE in June 1966, IBEW filed a grievance against IATSE
charging the latter with conduct in violation of the labor agreement and
even sought to have the complaint arbitrated
" Cf Pacific Couit Sliipbudders As%ocmtion, supra, where the retention of
the petitioner 's separate identity in the joint bargaining relationship was
held to be a substantial factor justifying its right to demand separate bar-
gaining status