Metromedia, Inc., KMBC TV v. N.L.R.B.
| Decision Date | 12 October 1978 |
| Docket Number | AFL-CIO,AFL-CI,Nos. 77-1974,78-1145,KMBC-T,I,P,s. 77-1974 |
| Parties | 99 L.R.R.M. (BNA) 2743, 84 Lab.Cas. P 10,868 METROMEDIA, INC.,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local Union 1259, International Brotherhood of Electrical Workers,ntervenor-Petitioner. INTERNATIONAL PHOTOGRAPHERS OF the MOTION PICTURE INDUSTRY, LOCAL 666, IATSE(), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Willard of Spencer, Fane, Britt & Browne, Kansas City, Mo., argued, for petitioner, Metromedia, Inc.; Willard and Michael F. Delaney, Kansas City, Mo., and Paul Kuelthau of Moller, Talent, Kuelthau, Dowell & Fisher, St. Louis, Mo., filed brief.
William A. Jolley of Jolley, Moran, Walsh, Hager & Gordon, Kansas City, Mo., argued and filed brief for petitioner-intervenor, IBEW.
Bernard M. Mamet (argued), and Paul T. Berkowitz, Chicago, Ill., filed brief for petitioner, IATSE.
Howard E. Perlstein (argued), Atty., N. L. R. B., Washington, D. C., John S. Irving, John E. Higgins, Jr., Carl L. Taylor and Elliott Moore, Washington, D. C., filed brief for respondent, N. L. R. B.
Before LAY, HEANEY and ROSS, Circuit Judges.
This case is before the Court on the petition of Metromedia, Inc., for review of a decision of the National Labor Relations Board finding that Metromedia violated § 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 Et seq. (1976), by failing to bargain in good faith with the International Photographers of the Motion Picture Industry, Local 666 (IATSE). The Board cross applied for enforcement of its order. The International Brotherhood of Electrical Workers, Local 1259 (IBEW) intervened in support of Metromedia's petition. Subsequent to the filing of Metromedia's petition in this Court, IATSE petitioned the United States Court of Appeals for the District of Columbia for modification of the Board's remedial order. Pursuant to 28 U.S.C. § 2112(a) (1976), IATSE's petition was transferred to this Court and the cases were consolidated for briefing and argument. Jurisdiction is predicated on § 10(e) and (f) of the Act. We affirm the Board's finding that Metromedia committed unfair labor practices, but remand for modification of the Board's remedial order.
Metromedia owns a number of television stations, among them KMBC-TV. Employees of KMBC-TV are represented by several different unions including IATSE and IBEW. The present controversy derives from the recent development of the "minicam", a miniature television camera now widely used in the television industry.
In April, 1974, IATSE was certified to represent an appropriate bargaining unit consisting of all "news department motion picture cameramen" at KMBC-TV. At that time, KMBC-TV employed five such cameramen. They used portable film cameras and worked in the news department under the supervision of the news director. Their job was to film news events and to edit the film for broadcast. Frequently, cameramen worked with reporters in teams. The reporter would indicate generally what he wanted filmed and the cameraman would determine the appropriate composition, camera angle and focal length to capture the scene. The cameraman then edited the film to conform to the reporter's script. At other times, cameramen worked alone, covering fast-breaking news events such as fires or wrecks, or small stories not warranting the presence of a reporter. In such cases, the cameraman had full responsibility for the content of the coverage.
By 1974, the station had decided to acquire two minicams to cover news events and for commercial purposes. Minicams are lightweight portable television cameras which operate on the same electronic principles as the larger studio television equipment. They produce electric signals or volts, which may be sent directly to television transmitters permitting live broadcast from remote locations, or recorded on videotape and preserved for later broadcast. Videotape is edited electronically and may be erased and reused. In contrast, the motion picture camera records the image on film which must be developed and does not permit live broadcast. Film is edited by cutting and splicing, precluding reuse.
Despite the technological differences, operation of the minicam is, in many respects, similar to the operation of the motion picture camera. The lenses, framing, composition, focus and focal length are basically the same. The station intended to use the minicam equipment for news-gathering purposes previously performed by motion picture cameras. It stipulated that it had no present intention of using the minicams for live broadcast. Thus, for this use of minicams, the same skills and judgment in gathering news and in editing material to conform to a script are required.
Metromedia determined that it could make optimal use of the minicams if it were free to assign employees from all departments and all bargaining units to use them. Pursuant to this belief, it submitted a contract proposal to IATSE in October or November of 1974, which included a provision that cameramen could be assigned to operate "portable video cameras and associated equipment," and that all cameramen's work was nonexclusive, I. e., could be performed by persons not members of the unit. The union agreed with the first provision, but objected to the nonexclusivity provision. Contract negotiations with IATSE continued through December without agreement. Following the December meeting, there were no further negotiations until June 4, 1975.
In the interim, Metromedia began renegotiating the IBEW contract which was to expire in April, 1975. IBEW represented all engineering employees at the station. These employees had traditionally operated and maintained the large studio television equipment. They were in a separate engineering department and had never performed news-gathering functions.
Pursuant to its plan, the company submitted a contract proposal to the IBEW which, with respect to the use of minicams, was similar to that earlier proposed to IATSE, I. e., nonexclusive use of minicams by all employees. The IBEW adamantly refused to agree to any such provision. It took the position that the minicam work belonged exclusively to its members under the jurisdictional clause in the existing collective bargaining agreement. 1 Similar jurisdictional language had been in IBEW contracts since 1942, when it began representing engineering employees at the station.
Faced with IBEW's insistence upon exclusive use of minicams by its members, the company finally proposed a new classification within the IBEW unit of "news engineers" to cover news events with portable video cameras and recording equipment and with motion picture cameras. The IBEW accepted the proposal and contract agreement was reached on May 6, 1975. Under this contract, news engineers were subject to special employment conditions not applicable to other engineers, including special overtime, seniority and licensing provisions. The jurisdictional language remained unchanged from the prior contract.
Negotiations with IATSE resumed on June 4, 1975. The company submitted to the union a revised proposal omitting all reference to the operation of minicams. It explained that under the new IBEW contract, IBEW had exclusive jurisdiction over minicams and the company was, therefore, not free to negotiate with IATSE over any minicam work. IATSE responded that the assignment to the IBEW constituted an unfair labor practice.
Negotiations with IATSE continued throughout the summer and fall, with the parties reaching agreement on most issues but not on the minicam. The company offered both a special severance pay plan, effective in the event of layoffs, and employment guarantees for present cameramen and their replacements for some agreed upon duration. Both proposals however, were ultimately rejected by the union. In December, the parties signed a final agreement that left open the minicam issue.
On November 7, 1975, IATSE filed unfair labor practice charges against Metromedia. The General Counsel issued a complaint on March 18, 1976. Prior to the hearing on the complaint, Metromedia advised two cameramen, members of the IATSE unit, that they would be assigned to operate the minicams for news-gathering purposes, but that they would have to join the IBEW before they could use the equipment. As before, they would continue to be under the supervision of the news department. It was not revealed whether the station intended to replace the transferred cameramen with new cameramen.
The administrative law judge held that the matter was a work assignment dispute and that it was not appropriate to decide such disputes in the context of a § 8(a)(5) unfair labor practice proceeding. He recommended that the complaint be dismissed.
The Board held, however, that Metromedia had violated § 8(a)(5) and (1) of the Act by:
(1) failing to bargain in good faith with the IATSE over the operation of minicams; (2) unilaterally 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; (3) commencing to implement its decision that employees in the IATSE unit would be required to become members of the unit represented by the IBEW; and (4) all of the foregoing conduct, undermining the status of IATSE as the certified bargaining representative of the employees in the appropriate unit herein. 2 (Footnotes omitted.)
The Board ordered the company to cease and desist from the described unfair labor practices, and affirmatively ordered it to bargain with IATSE over the operation of minicams at KMBC-TV, to rescind that portion of its collective bargaining agreement with IBEW granting minicam work exclusively to...
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