N.L.R.B. v. National Broadcasting Co., Inc., 1287

• Decision Date: 14 August 1986
• Docket Number: D,No. 1287,1287
• Citation: 798 F.2d 75
• Parties: 123 L.R.R.M. (BNA) 2182, 55 USLW 2180, 105 Lab.Cas. P 12,055 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL BROADCASTING COMPANY, INC., Respondent, Directors Guild of America, Inc., Intervenor. ocket 86-4012.
• Court: U.S. Court of Appeals — Second Circuit

Page 75

798 F.2d 75

123 L.R.R.M. (BNA) 2182, 55 USLW 2180,

105 Lab.Cas. P 12,055

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL BROADCASTING COMPANY, INC., Respondent Directors Guild of America, Inc., Intervenor.

No. 1287, Docket 86-4012.

United States Court of Appeals Second Circuit.

Argued May 8, 1986.

Decided Aug. 14, 1986.

Donald W. Savelson, Washington, D.C. (Proskauer Rose Goetz & Mendelsohn, Washington, D.C. and Irving Brand, New York City, of counsel), for respondent.

Allen Ferguson, Washington, D.C. (W. Christian Schumann, Rosemary M. Collyer, John E. Higgins, Jr., Robert E. Allen and Elliott Moore, Washington, D.C., of counsel), for petitioner.

Linda G. Bartlett, New York City (John A. Connor, New York City, of counsel), for intervenor.

Before VAN GRAAFEILAND, KEARSE and MINER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an unfair labor practice order directing the National Broadcasting Company (NBC) to cease and desist from denying representatives of the Directors Guild of America (the Union) access to remote broadcasting facilities at reasonable times and places in order to police NBC's compliance with the terms of a collective bargaining agreement between the Union and NBC. We grant the petition.

NBC televises most sporting events from remote, as opposed to studio, broadcasting sites. The remote broadcasts usually are supervised from a trailer, approximately eight by forty feet, which contains television monitors and other necessary equipment. The broadcast personnel in the trailer generally consist of a producer, who is in overall charge of the facility, a director and an assistant director, who are Union members, and various technical and subordinate employees. The dispute between the Union and NBC originated in the Union's contention that producers, non-unit employees, were doing union work properly assigned to the directors and assistant directors, by "cueing" technical personnel in the performance of certain broadcast functions. Alleged violations of this nature during a 1981 golf tournament in California formed the basis for a grievance against NBC, which was to be arbitrated shortly after the instant proceedings.

In preparation for the California arbitration, the Union decided to have a representative visit an NBC broadcast from a golf tournament at Bay Hill, Florida, to observe whether contract violations were taking place there. However, upon inquiry of NBC, the representative was told that he would not be admitted to the "cramped quarters" of the truck while play was being broadcast or taped for broadcast. NBC's position was that there were Union members present during the broadcast who could report violations to the Union. The Union's position, on the other hand, was that, since the directors were assigned remote control work on a freelance or non-contract basis, they would be reluctant to antagonize their employer by complaining to the Union. Accordingly, the Union instructed its representative to proceed to Bay Hill.

When the representative arrived at the golf course, the occupants of the NBC trailer were taping tournament play for later broadcast. Seeing no one outside the trailer, the representative entered it. His intrusion apparently went unnoticed until he was paged approximately one hour later. At that point, NBC's Vice President of Technical Operations asked him to leave the trailer. When the representative sought admission on the next broadcast day, he was denied access to the NBC facilities while they were in operation.

The Union filed an unfair labor practice charge, alleging that NBC's denial of access violated section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (5). The Administrative Law Judge ruled that NBC's conduct constituted an unfair labor practice. He stated that NBC's past practice of permitting Union representatives unrestricted access to their unit members' workplaces had ripened into a contractual right of access which NBC could not change unilaterally. Alternatively, applying the balancing test of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), he held that the Union's need for the information outweighed NBC's right to control access to its private property. The ALJ found that the information sought by the Union was relevant to the Union's function as bargaining agent for its employees, and that firsthand observation of the broadcast crew at work was the only way the Union could gather that information. He rejected as insufficient the alternatives to access offered by NBC. He said that unidentified vocal commands and hand-cueing signals could not be monitored adequately from outside the trailer. He agreed with the Union that it could not rely on whistle-blowing by its "freelancing" director members. Finally, he concluded that Union access limited to the times when no employees were working was no useful access at all. The ALJ ordered NBC to give Union representatives unlimited access to its remote facilities for the purpose of policing and enforcing its collective bargaining agreement.

Upon appeal by NBC, the Board disagreed with the ALJ's finding that NBC had a longstanding practice of permitting Union representatives...