Intl Bro. of Electrical Wkrs., Loc. 4

National Labor Relations Board - Board DecisionsSep 24, 1974

213 N.L.R.B. 482 (N.L.R.B. 1974)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- I THE BUSINESS OF THE EMPLOYERS cal No. 4, AFL-CIO and Ed Joiner Productions, Inc. and National Association of Broadcast Employees and Technicians, AFL-CIO, CLC International Brotherhood of Electrical Workers, Lo- cal No. 4, AFL-CIO and James P. Wright , an Indi- vidual d/b/a Century Custom Recording Service and National Association of Broadcast Employees and Technicians , AFL-CIO, CLC. Cases 14-CD-484 and 14-CD-485 September 24, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amend- ed, following the filing of charges by Ed Joiner Pro- ductions , Inc., and James P. Wright , an Individual d/b/a Century Custom Recording Service.' The charge alleges that International Brotherhood of Elec- trical Workers , Local No. 4, AFL-CIO, herein called IBEW , violated Section 8 (b)(4)(D) of the Act by en- gaging in certain proscribed activity with an object of forcing or requiring the Employers to assign certain work to employees represented by IBEW rather than to employees represented by National Association of Broadcast Employees and Technicians , AFL-CIO, CLC, herein called NABET. A duly scheduled hearing was held before Hearing Officer J. Ronald Petrikin in St. Louis , Missouri, on May 28 , 1974. All parties appeared at the hearing and were afforded full opportunity to be heard , to exam- ine and cross -examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter , briefs were filed on behalf of IBEW and NABET, with Ed Joiner Productions , Inc., joining in the position taken by NABET. 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 they are free from prejudicial error . They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: (a) The parties stipulated and the record shows that Joiner is a corporation with its principal office and place of business located in Atlanta, Georgia. It is engaged in the production and transmission of televi- sion broadcasts of professional sports events includ- ing the transmission of such events occurring in St. Louis, Missouri, to Ohio, Georgia, Pennsylvania, and other States. Joiner annually derives in excess of $100,000 in gross revenues from sale of its television production services, and a substantial portion of said revenue is from the sale of its services to customers located outside the State of Georgia. Accordingly, we find in accordance with the stipulation of the parties that Joiner is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.' (b) The IBEW contends that Wright does not meet the Board's standards for assertion of jurisdiction. The record shows that Wright's principal office and place of business is located in Kirkwood, Missouri. He testified he is an independent television broadcast- ing producer of commercial programs, industrial pre- sentations, closed circuit programs, and "anything having to do with the communications industry." Wright is a representative of Joiner in St. Louis, hap- dling crew arrangements and equipment needs; for hockey transmission, he performs as a director, assis- tant director, or liaison. He provides services to Mis- souri advertising agencies which represent clients outside the State.' Wright annually derives in excess of $200,000 from the sale of his services, and it ap- pears that a substantial amount thereof is for services to firms, such as Joiner, which are located outside the State of Missouri. Accordingly, we find that Wright meets the Board's discretionary standard for assertion of jurisdiction in the communications industry 4 and is engaged in commerce within the meaning of Sec- tion 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 INVOLVED The parties stipulated, and we find, that IBEW and NABET are labor organizations within the meaning of Section 2(5) of the Act. 2 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958). 7 Clients serviced by these advertising agencies include Greenwood Sau- sage Co . of South Carolina, Shakey's, Black Hawk Federal, IGA, Bunny Bread , and others Herein called Joiner and Wright and referred to jointly as Employers . Â° Raritan Valley Broadcasting Company, Inc, supra 213 NLRB No. 97 INTL BRO. OF ELECTRICAL WKRS., LOC. 4 483 III THE DISPUTE A. The Work In Dispute The disputed work involves the operation of televi- sion cameras and other equipment used by Joiner and/or Wright in the televising of professional base- ball and soccer games from Busch Memorial Stadium, St. Louis, Missouri. B. Background and Facts Joiner has a contract with the Atlanta Braves base- ball team and Atlanta television station WTGG to produce road games for the Braves. As the St. Louis, Missouri, Busch Memorial Stadium was within geo- graphic limits making it economically feasible to take Joiner's electronic equipment truck to St. Louis, it was driven there by two employees. All of Joiner's em- ployees are members of NABET. Joiner also has an agreement with the arena in St. Louis to produce games originating there. Joiner sent about five of its employees to perform the critical functions in televis- ing the games and asked Ray Moore, business repre- sentative of IBEW in St. Louis, to provide the supplemental personnel to staff the operation. The total complement of employees is about 10 for base- ball. The record shows that on various dates Business Agent Ray Moore refused to refer employees unless Joiner and certain of its representatives assigned to employees represented by his Local the work of oper- ating television cameras and other equipment used by Joiner in televising professional baseball and soccer games from Busch Stadium. Thus, on April 25, 1974, Joiner requested IBEW to supply five men to supple- ment the four-man crew and was informed that only two Joiner employees could be used in the telecast. On April 26, 1974, Moore told Joiner representatives that it would permit no more than two Joiner employees to work on telecasting the game that day and threat- ened to picket Busch Stadium. Joiner therefore se- cured employees from other cities, and when they arrived at the stadium the keys to the cable area could not be located. After finding the keys, the Joiner crew started to run the cables, and IBEW began picketing in front of the office of the St. Louis Cardinals base- ball team, the ticket windows, and the Joiner truck. The electrician at the stadium, who was represented by an IBEW local, refused to supply electricity; the picketing and refusal to supply electricity continued through April 27, 28, and 30, and May 1 and 4.5 5 There was no game on April 29 The picket line was removed on May I but was resumed on May 4 when Wright undertook transmission of a soccer game , as detailed below. Wright was under contract to Tinsley Sports Net- work to produce a soccer game on May 4, 1974. Wright arranged for Joiner to supply two of its techni- cians with cameras and other equipment. Wright called Moore, Respondent's business agent, to com- plete the crew. Moore told Wright he could use the Joiner people only as maintenance supervisors, not as operating technicians. This would require Wright to hire two more employees, to which Wright agreed. Moore then demanded a contract to cover "any time you need crews in the future" and refused to refer employees without such a commitment, but Wright refused to enter into such an agreement. On May 4, when the Joiner employees who were working for Wright arrived, Moore demanded to see their union cards. Two produced their cards and the rest refused. A picket line was put up and the electrici- ty was not furnished, allegedly because Wright's em- ployees were nonunion. Wright thereupon assigned the contract to Joiner and so informed Moore, who nevertheless maintained the picket line; and the elec- trician refused to furnish electric power to the mobile unit for transmission of the program. A short while before air time, Tinsley Sports Network signed a bar- gaining contract with IBEW. Thereafter, the picket line was removed, the electric power was restored, and IBEW supplied a crew of five men who worked with three of the six Joiner employees. C. Contentions of the Parties NABET contends and the Employers agree that there is a jurisdictional dispute because IBEW threat- ened to and did picket and refuse to refer per diem employees because more than two Joiner employees were doing the work. They take the position that the work should be left as assigned to the Joiner employ- ees, and that such assignment is consistent with the certification and Joiner's contract with NABET; and ,that skills, efficiency of operation, economy, the prac- tice of the Employers and in the area, and the Employer's preference favor NABET. IBEW argues that the Board should not proceed to a determination of dispute in this case. It claims there is not reasonable cause to believe that it engaged in coercive conduct within the meaning of Section 8(b)(4)(D) of the Act, and it argues that the picketing was lawful as its purpose was to maintain the wage rate effective in St. Louis, Missouri. IBEW further contends that this is not a jurisidictional dispute, inas- much as it agrees that NABET has a contract with Joiner covering the latter's permanent employees; but asserts that IBEW has an oral agreement with Joiner under which Joiner may bring in only two employees 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and IBEW will supply per diem employees to com- plete a crew. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for the voluntary adjustment of the dispute. Contrary to IBEW's argument noted above, we do not find the threats and picketing had as their purpose the protection of local wage standards but find they were to cause assignment of work to persons repre- sented by IBEW rather than to those represented by NABET. It is also clear that the work herein is claimed by both IBEW and NABET for employees each represents. Accordingly, we find that a jurisdic- tional dispute exists. As noted, the record discloses that Respondent's Business Agent Moore made various demands of the Employers to assign the work in dispute to electri- cians, he threatened that IBEW would picket if that assignment was not made, and IBEW did so on 5 days. Accordingly, we are satisfied that there is rea- sonable cause to believe a violation of Section 8(b)(4)(D) did occur. Furthermore, the record does not disclose any agreed-upon method for the volun- tary adjustment of this dispute. Therefore, we find that this dispute is properly before the Board for de- termination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Certification and collective-bargaining agreements The record discloses that NABET was certified for a unit of all employees of Joiner on June 5, 1973, and has a contract (dated October 1, 1973) with Joiner which states: SECTION IV-JURISDICTION: (A) Except as otherwise provided in this Agreement, only Em- ployees covered by this Agreement shall be as- signed to production, and/or technical duties. Employees under this contract shall be responsi- ble for and have exclusive jurisdiction covering the positions of technical supervisor, technical director, vision mixer, lighting director, video technician, audio technician, audio assistant, sound effect technician, television computer technician, electronic graphics technician, video tape technician, video tape editor and splicer, disc technician, special effect technician, trans- mitter technician, cameraman, projectionist, crane tongue operator, dolly operator, cableman, cueing devise operator and also including, elec- trician, stage hand, gaffer, grip, set builder, set decorator, and technician vehicle driver. Section (b) defines the jurisdiction as including sup- port equipment operators. Section V-CONDITION OF WORK, in brief, provides that the contract shall be in effect across the Nation and that Joiner employ- ees shall be employed wherever work is being per- formed by Joiner. An addendum to the contract provides that "the Company may supplement the full- time Employees represented by NABET in order to assist them in carrying out their assigned duties with the herein named Employees." Thus, Joiner by con- tract is obligated to employ all members of the basic crew prior to employing supplemental help. IBEW has no written contract but contends it has an oral agreement that Joiner will use no more than two of its permanent employees. Employer denies this and there is insufficient evidence on which to find that such an agreement exists . We therefore find that both the cer- tification and Joiner's contract with NABET favor Joiner's assignment. 2. Employer and area practice The facts disclose that both Employers have as- signed the work in dispute to Joiner's employees who are represented by NABET. Joiner, after sending its employees to St. Louis, attempts to supplement the crew with persons referred by IBEW. In Atlanta as well as in Washington, D.C.; Pittsburgh, Pennsylva- nia; and Houston, Texas, Joiner takes the available members of its crew and supplements the rest with local people, and the record shows that Joiner and the other nonnetwork producers operate in the same manner throughout the United States . The evidence of Joiner's and national practice would tend to favor Joiner's assignment . Wright has no permanent em- ployees and this dispute, insofar as it concerns him, arises solely from his arrangement to use Joiner's em- ployees on I day. 3. Skills, efficiency, and economy of operation Joiner testified that its employees possess the re- quired knowledge and skill which is necessary to per- INTL. BRO. OF ELECTRICAL WKRS ., LOC. 4 form the work in dispute. In fact, because of the new- ness of its equipment and the training required which members of IBEW do not possess, if its employees were not used, transmission would fail and the $1 million equipment might be damaged. There is further testimony that if Joiner were not permitted to use its employees in the telecasts, it would be required, under its NABET contract, to pay its employees because of the guaranteed wage. We find that skills, efficiency, and economy of operation favor Employers' assign- ment. Conclusions Having considered all pertinent factors, we con- clude that the employees represented by NABET are entitled to perform the work in dispute and that IBEW is not entitled to seek the assignment by means proscribed by Section 8(b)(4)(D).6 This award is con- sistent with the certification and contract; Employer's assignment; employer, area, and national practice; the skills, efficiency, and economy of operation; and Employers' preferences. In making this determina- tion, we award the work to the employees of the Em- ployers who are represented by NABET, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. 6 As IBEW had no contract with Joiner or Wright which establishes an exclusive hiring arrangement , our order herein is not to be construed as requiring IBEW to refer employees to Joiner or Wright on request DETERMINATION OF DISPUTE 485 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 hereby makes the following Determination of Dispute: 1. Employees of Ed Joiner Productions, Inc., and James P. Wright, an Individual d/b/a Century Cus- tom Recording Service, who are currently represented by National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, are entitled to the work of operation of television cameras and other equip- ment used in televising professional baseball and soc- cer games from Busch Memorial Stadium, St. Louis, Missouri. 2. International Brotherhood of Electrical Work- ers, Local No. 4, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Ed Joiner Productions, Inc., and/or James P. Wright, an Individual d/b/a Century Custom Re- cording Service , to assign the disputed work to its members or employees whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brother- hood of Electrical Workers, Local No. 4, AFL-CIO, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing or requiring the Employers, by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to assign the disputed work to employees represented by it rather than to employ- ees currently represented by National Association of Broadcast Employees and Technicians, AFL-CIO, CLC.