Video Tape Enterprises, Inc.

National Labor Relations Board - Board DecisionsNov 19, 1974

214 N.L.R.B. 1037 (N.L.R.B. 1974)

VIDEO TAPE ENTERPRISES, INC. Video Tape Enterprises, Inc. and International Alli- ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Petitioner . Case 31- RC-2688 November 19, 1974 DECISION ON REVIEW BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 28, 1974, the Regional Director for Re- gion 31 issued a Supplemental Decision and Order in the above-entitled case in which he overruled the challenges to the ballots of three employees and di- rected that these ballots be opened and counted.' Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, as amended, the Employer and Intervenor filed timely requests for review of the Regional Director's Supplemental Decision on the grounds, inter aha, that he made findings of fact which are clearly erro- neous. On July 30, 1974, the National Labor Relations Board by telegraphic order denied the Intervenor's request for review, but granted the Employer's re- quest for review as it raised substantial issues war- ranting review. 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 entire record in this proceeding with respect to the issues under review,' and makes the following findings: The Employer is engaged in the business of video tape film production at various locations throughout California. The Employer has approximately nine regular full-time unit employees who perform the fol- lowing functions: equipment maintenance, combina- tion equipment maintenance-camera operation, vid- eo control, combination video control and slow mo- tion operation, and combination technical direction-video control. These employees are paid a fixed weekly salary ranging from $250 to $400, re- 1 Pursuant to a Decision and Direction of Election issued by him on April 9, 1974, an election was conducted on April 25, 1974 The tally of ballots showed that although there were approximately 9 eligible voters , I I cast ballots , of which 4 were for the Petitioner , I was for the Intervenor , Nation- al Association of Broadcast Employees & Technicians , AFL-CIO-CLC, 3 were against the participating labor organizations , and 3 were challenged The challenged ballots were sufficient in number to affect the results of the election 2 The Employer' s motion for rehearing and to reopen the record, filed October 25 , 1974, is hereby denied as lacking in merit 1037 gardless of the number of hours worked in any given week. The Employer contends in its request for review that, as the unit found appropriate by the Regional Director in his Decision and Direction of Election was limited to the Employer's full-time staff employ- ees, he erred in including the three challenged voters in the unit as regular part-time employees. We find merit in this contention. At the hearing, the Intervenor moved to include in the unit 17 additional employees known as "free lancers," contending that they were employed on a frequent or regular basis by the Employer and could be classified as regular part-time employees. The Em- ployer contended that at most the "free lancers" were casual employees who should not be included in the unit agreed upon by the Employer and the Petitioner. The Hearing Officer denied the Intervenor's motion because no evidence was presented to show that the freelance employees performed unit work on a regu- lar basis or that they had a continuing interest in the wages, hours, and working conditions of unit em- ployees. The Regional Director sustained the Hear- ing Officer's denial of the Intervenor's motion, and stated that "There are approximately ten employees in the unit found appropriate." In his Supplemental Decision, the Regional Direc- tor included the three challenged voters in the unit, concluding, on the basis of evidence as to their em- ployment history with the Employer, that they are regular part-time employees. He sought to reconcile his inclusion of them in the unit with his earlier deni- al of the Intervenor's motion to include "free lanc- ers" in the unit by asserting that the record contained no description of the duties performed by "free lanc- ers" and that the Intervenor made no offer of proof concerning the nature of their work. Contrary to the Regional Director, we conclude that the unit found appropriate by him in his Deci- sion and Direction of Election was limited to the Employer's full-time staff employees. In our opinion, in making his unit determination therein, including his disposition of the Intervenor's motion to include in the unit 17 free lancers,' the Regional Director clearly confined the unit to full-time staff employees, in accord with the positions of the Petitioner and the Employer. Review was not requested of the Regional Director's unit determination. In the circumstances, there is no basis for including in the unit the three part-time employees who were permitted to cast challenged ballots in the election herein. Accordingly, we hereby sustain the challenges and, 3 The Employer, in its request for review, states that the term "free lanc- er" is commonly used in the motion picture industry to refer to part-time employees However , we find it unnecessary to determine herein the status of any of the "free lancers" utilized by the Employer in its operations 214 NLRB No. 77 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the tally of ballots indicates that none of the three at Director in order that he may conduct a runoff choices has received a majority of the ballots cast in election in accordance with the Board's Rules and the election , we shall remand the case to the Region- Regulations.