NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Writers Guild of America, West, Inc. and Universal Network Television, LLC. and NBC Studios, Inc. Cases
31–CB–12062 and 31–CB–12063
July 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Walsh
On February 13, 2007, Administrative Law Judge Gregory Z. Meyerson issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law judge is adopted and the complaint is dismissed.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Anne J. White, Esq., for the General Counsel.
Anthony R. Segall, Esq., of
Peter J. Hurtgen, Esq., of
DECISION
Statement of the Case
Gregory Z.
Meyerson, Administrative Law Judge. Pursuant to notice, I heard this case in
All parties appeared at the hearing, and I provided them with the full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based upon the record, my consideration of the briefs filed by counsels for the General Counsel, the Charging Parties, and the Respondent, and my observation of the demeanor of the witnesses, I now make the following findings of fact and conclusions of law.4
Findings of Fact
i. jurisdiction
The complaint alleges, the answer admits, and I find that
Universal, with an office and primary place of business located in
Accordingly, I conclude that Universal is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Further, the complaint alleges, the answer admits, and I
find that NBC, with an office and primary place of business located in
Accordingly, I conclude that NBC is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. labor
organization
The complaint alleges, the answer admits, and I find that
at all times material herein, the
iii. the
alleged unfair labor practices
A. The Dispute
For the most part, the facts in this case are not in
dispute. The Employers are parties to
collective-bargaining agreements with the
The Employers produce network television programs, a number of which were scheduled for the 2006–2007 fall television season. Among those shows were two mentioned in the complaint, “The Office” and “Crossing Jordan.” On each of the network shows there is typically an individual employed as a “show runner.” The show runner is in many instances the creator of the show, and generally is an executive producer who functions as the show’s chief writer with principal responsibility for the creative direction of the series. While each program may have more than one executive producer, there is usually only one show runner. All parties seem to agree that the show runner is a television program’s head creative executive, with the ultimate responsibility for the overall look and content of the show. As the name implies, the show runner “runs” the show.
In the television industry, there is a custom of employing certain individuals on a show to perform not only writing services, but also other nonwriting functions, such as producer functions. The MBA defines the term “writer,” and sets forth a number of other duties that are not covered by the contract, and that when performed by a nonwriter does not convert the individual to writer status. (GC Exh. 2, art. I. C.1.a. at 17.) An individual performing covered and noncovered services is referred to in the MBA as a “writer employed in additional capacities,” and, as a result of carrying multiple titles, has customarily been referred to in the industry as a “hyphenate.” Examples of such hyphenates would be writer-producer, writer-director, writer-executive producer, writer-show runner, or writer-executive producer-show runner. It is significant to note that under the hyphenate status, while the writing portion of the hyphenate’s duties are covered by the MBA, the other functions that he/she performs are not covered.
The dispute before the undersigned is principally a legal issue, that being whether the show runners are representatives of the Employers for the purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act; and whether the Union threatened the show runners with discipline for acting in their capacity as representatives of the Employers.
B. The Facts
During the negotiations in 2001 for a new contract, the parties
to the MBA added a provision known as the “side letter of literary material written
for programs made for the internet” (internet side letter). (GC Exhs. 3–4.) The internet side letter was carried forward
without change in the current agreement, the effective dates of which are
November 1, 2004 through October 31, 2007.
(GC Exh. 2.) The Employers and
the
Webisodes can take a number of different forms, but are essentially short vignette style original programs created for and exhibited on the internet for the purpose of advertising an existing television series. Each webisode typically lasts between 2 and 5 minutes and is intended for distribution exclusively over the internet. Users access the webisodes through their computers.
The internet side letter authorizes an employer that is
party to the MBA, at the employer’s option, to execute a “letter of adherence”
to cover writing work on internet material, in this case webisodes. (GC Exhs. 3–4.) According to the internet side letter, the letter
of adherence is binding on the employer executing the document and the
There is a fundamental difference in the way the Employers
and the
The
In the spring of 2006, the Employers’ show runner hyphenate
for the program “The Office,” Greg Daniels, with the assistance of several
senior level writer-producers, created and prepared a series of webisodes. Initially, the Employers took the position
that these webisodes were “promotional” vehicles, which the MBA did not cover,
and, therefore, this work was performed outside of any agreement with the
In preparation for its 2006–2007 fall television season,
most of NBC’s prime time scripted programs were to have some type of internet
material associated with them. For “The
Office,” Daniels decided that the writing demands of the webisodes required the
hiring of a new writer devoted to this work.
After consultation with a number of the Employers’ managers, Daniels
chose Jason Kessler to write the webisodes, under his direction. Kessler was a former writer’s assistant on
Daniels’ staff, and was not a member of the
It was apparently through Daniels’ subsequent contact with
the Union that the Employers learned that the
On May 25, 2006, Keith Gorham, senior vice president of
labor relations, Sheldon Kasdan, senior labor relations counsel, and Steven
Berkowitz, vice president of labor relations, all on behalf of the Employers,
met for lunch with David Young, the newly appointed executive director of the
According to Gorham, Young indicated that the
Young’s testimony regarding this May luncheon meeting was
similar to that of Gorham. He testified
there was a brief discussion about webisodes with Gorham taking the position
that the webisodes were promotional, and, therefore, not covered by the
collective-bargaining agreement. Gorham
allegedly stated that since the MBA did not apply, the Employers were not
required to use union members for the writing work. Young responded by saying that if the
Employers did intend to use union members to do the work, the
There is a significant variance in the testimony of
Berkowitz when compared to that of Gorham and Young. Berkowitz testified that the May meeting was
requested so that management could introduce itself to Young and discuss the
concept of webisodes. He indicated, in
conformity with the other two witnesses, that the Employers’ position was that
the webisodes were promotional, and yet the Employers still had the option of
using the internet side letter. However,
Berkowitz adds an important element not mentioned by either Young or
Gorham. According to Berkowitz, Young responded
by saying that “[he] had the ability to order [his] members not to work on
webisodes and this would include [the] producers . . . absent an agreement by
the [
All three witnesses were reasonably credible. However, there is no way to reconcile the testimony of Berkowitz with that of Gorham and Young. Gorham was the Employers’ chief spokesperson, and surely had Young made any such statement at the May meeting regarding ordered the “producers” not to work on the webisodes, Gorham, clearly an intelligent, articulate witness, would have so testified. He did not, and Young specifically denied making any such comment. Accordingly, I must conclude that Berkowitz, also an intelligent, articulate witness, was simply mistaken in his recollection of what he alleges Young said at the May meeting.10
Having been unable to obtain an agreement with the
On July 17, Young sent a letter to Keith Gorham stating
the Union’s position that writing services performed on webisodes were coved by
the MBA, but would require negotiating with the
The Union hosted a dinner for the Employers’ show runners
on July 26 at a local
Daniels was asked on direct examination at the hearing
whether Young said anything to the show runners at the dinner about whether
they should work on the webisodes. He responded
that his “impression” was that they “were not supposed to work on the webisodes,”
and that the
Counsel for the General Counsel was persistent in questioning
Daniels as to whether Young had mentioned anything about the show runners not
assigning other writers to perform work on the webisodes. While Daniels initially indicated that Young
was saying as much, when directly asked by the undersigned whether Young had
used such words, he testified, “No, [Young] never. [Young] never had a prescriptive comment, I
don’t think.” Daniels went on to state
that it was his “understanding of the way unions work” that if he did not follow
the Union’s direction that there could be “fines” levied or he could be “kicked
out of the Union.” However, he clearly
testified that repercussions for not supporting the
Kring’s recollection of the dinner meeting at Pinot Bistro
was similar to that of Daniels. He
recalled Young stating the
In my opinion, both Kring and Daniels testified in a
rather vague, imprecise way when reciting the alleged statements of Young at
the July 26 dinner meeting. In part this
may have been the result of the passage of time. However, in large measure I believe it to
have been caused by their feelings of divided loyalty. Clearly, both men were dedicated to the success
of their respective programs, which were dependent largely upon the efforts of
the Employers to promote them by various means, including the use of
webisodes. Conflicting with those
feelings were the loyalty they owed the
Young testified only briefly on direct examination by counsel
for the
Following the Pinot Bistro meeting, Kring sent an e-mail
to various management representatives dated July 28 in which he indicated that
he was “in full support” of the Union’s position on writing services for the
webisodes. While he said that he was “thrilled”
to be a part of NBC’s efforts at digital extensions, that as a “loyal member[ ]
of the [
One of the “signers” of the July 31 e-mail was Robert Rovner. Rovner was the executive producer-show
runner-writer of “Crossing Jordan.”
While Rovner did not attend the Pinot Bistro dinner meeting, he did
attend a different dinner in July at the Beverly Hilton, also hosted by the
As the time passed, the Employers’ management executives
became increasingly concerned with their inability to get webisodes for the network’s
various programs written and produced.
Specifically for “The Office,” a decision was made to hire a writer
separate from the show’s writing staff and have Daniels supervise this writer’s
work without having to personally perform any MBA covered writing functions. Vernon Sanders, the vice president of comedy
programming for the Employers, testified that Daniels refused to supervise the
work of this writer because of pressure from the
In an effort to make some progress on the webisode issue,
another meeting between the parties was held on July 31. In attendance on behalf of the Union were
Young, Patrick Verrone, president of the
Once again, Berkowitz’ version of the meeting was at variance
with that of Gorham and Young. Berkowitz
testified that the Employers’ representatives articulated the position that the
I am of the view that Berkowitz is mistaken in his
recitation of Young’s alleged threat during the July 31 meeting. My conclusion is based on the same rationale
as given earlier in connection with the May 25 meeting. It is simply illogical that had such a threat
been made that Gorham, the Employers’ chief spokesman, would not have so
testified. As he did not, and as Young categorically denies the statement attributed
to him, I must conclude that where all three witnesses appear reasonably
credible, that the greatest probability rests with Berkowitz being mistaken as
to his recollection.14
The July 31 meeting ended with no agreement. Thereafter, by cover letter dated August 2,
and sent to the Employers’ show runners, Young asked the show runners to read
and distribute an attached letter about the webisode issue to their writing
staffs, and indicated that the show runners’ support was important in ensuring
that their staffs understood “both the spirit and letter” of the attached
document. (GC Exh. 19.) The attached letter from Young was also dated
August 2, and in that document Young set forth the
In light of the show runner hyphenates and the writers’ continued
refusal to work on webisodes for any of the Employers’ programs, the Employers
requested another meeting with the
Further, Gorham complained that the Employers’ show runners
were refusing to perform not only writing functions, but any services in
connection with the “digital extensions,” including the supervision of nonunion
writers.15 Gorham testified that he informed the Union
that while the Employers felt that the Union was pressuring the show runners to
withhold these services and that this conduct was unlawful, the Employers would
refrain from taking legal action if the Union would send a letter specifying
that the show runners would not be disciplined for “producing the work of nonunion
writers.” According to Gorham, the
Once again, the parties had failed to resolve their
dispute over writing and producing the webisodes. Subsequently, both the
On August 11, the
At least one show runner interpreted the August 2 and 11
correspondence from the
By this time virtually all work on writing and producing webisodes for any of the programs on the Employers’ network had ceased. There then followed a series of correspondence between Rick Olshansky, executive vice president of business affairs for the Employers, and the personal attorneys representing Daniels and Kring. Olshansky sent a letter dated August 17 to Sam Fischer, attorney for show runner Daniels. In the opening paragraph of the letter, Olshansky claimed that Daniels had advised the Employers’ managers that he was “unwilling or unable to cooperate in the production of [webisodes] despite the [Employers’] right to assign him such work” under the terms of his personal services agreement, due to the Union’s “threat to discipline him should he perform such services before the [Union] has negotiated . . . additional terms and conditions” regarding webisode work. (GC Exh. 10.)17 On the same date, Olshansky sent Kring’s attorney, Jeanne Newman, a virtually identical letter. (GC Exh. 20.)
The attorneys for Daniels and Kring responded to Olshansky
by separate letters dated August 17. In
his letter, Daniels’ attorney acknowledged that Daniels was “not prepared to
render services in connection with the [webisodes]” for the reasons “eloquently
stated in the first paragraph of [Olshansky’s] letter.” Further, he said that Daniels had been advised
by the
C. Legal Analysis and Conclusions
1. The duties of show runners
Section 8(b)(1)(B) of the Act prohibits unions from
restraining or coercing employers in the selection of their representatives for
the purposes of collective bargaining or the adjustment of grievances. The unlawful conduct may be applied directly against
the employer to force it to select or replace an 8(b)(1)(B) representative or
indirectly against the employer’s 8(b)(1)(B) representative in order to
adversely affect how the representative performs the enumerated functions of
collective bargaining or grievance adjustment.
The Board has determined that contract interpretation is so closely
interrelated with collective bargaining that it is considered an 8(b)(1)(B)
activity. Elevator Constructors Local 10 (Thyssen General Elevator Co.), 333
NLRB 701 (2002); Elevator Constructors
Local 1 (National Elevator Industry), 339 NLRB 977, 983 (2003); Teamsters Local 507 (Klein News), 306
NLRB 118, 120, 121 (1992). The Supreme
Court has also indicated that contract interpretation comes within the limits
of 8(b)(1)(B) activities, as it is a “closely related activity.” NLRB v.
Electrical Workers Local 340 (Royal Electric), 481
From the evidence adduced at the hearing, there is no
serious doubt that show runners are supervisors as defined in Section 2(11) of
the Act. For the three show runners who
testified, Daniels, Kring, and Rovner, the record is replete with examples of
their exercise of supervisory authority.
Even counsel for the
The show runners “run” their respective shows, hence the name. There is usually only one show runner in charge of a particular program. In many instances, the show runner is the creator of the show, and generally is an executive producer who functions as the show’s chief writer with principal responsibility for the creative direction of the series. As the television program’s head creative executive, he/she has the ultimate responsibility for the overall look and content of the show.
From the testimony of Daniels, Kring, Rovner, and other witnesses, it appears that all show runners share many of the same duties and responsibilities. Typically, they hire all the writers and directors for the show, and they determine whether to retain those writers and directors by picking up an employee’s “option” when an employment contract expires, which is the functional equivalent of having the authority to fire. The show runners are also instrumental in deciding which actors to hire for the cast. One of the principal duties of the show runner is to assign the writing work to the individual staff writers. This assignment of writing duties is made by the show runner utilizing his/her own discretion and independent judgment in evaluating the needs of a particular program episode and the artistic skills of the individual members of the writing staff.
The exercise of any of the above duties by the show runners is adequate alone to constitute indicia of supervisory authority. It is well established that the possession of even one of the powers enumerated in Section 2(11) of the Act is sufficient to establish supervisory status. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. denied 355 U.S. 908 (1949). As I have said, there is no serious dispute on this issue, and, accordingly, I conclude that Daniels, Kring, Rovner, and other show runners similarly situated are supervisors as defined in the Act.
However, the question still remains as to whether Daniels, Kring, Rovner, and other show runners were the Employers’ 8(b)(1)(B) representatives. Simply exercising some supervisory authority is not sufficient to find that an individual is a collective-bargaining representative or grievance adjuster. The Supreme Court has held that in order to establish a violation of Section 8(b)(1)(B), it must be shown that the individual involved had the actual authority to engage in grievance adjustment or collective bargaining activities on behalf of the employer. NLRB v. Electrical Workers Local 340 (Royal Electric), supra. Prior to the Electrical Workers Local 340 case, the Board had taken the position that Section 8(b)(1)(B) should be broadly construed to cover any Section 2(11) supervisor, because in the future such a supervisor could become engaged in collective bargaining or grievance adjustment. This theory was referred to as the “reservoir doctrine,” as it created a pool or reservoir of potential authority to cover any Section 2(11) supervisor. In the Electrical Workers Local 340 case, the Court made it clear that Section 8(b)(1)(B) prohibits union discipline of only supervisors who actually perform 8(b)(1)(B) duties.
I believe that it is clear that Daniels, Kring, Rovner, and other show runners do, in fact, actually perform 8(b)(1)(B) duties. The three show runners who testified each indicated responsibilities for adjusting grievances/complaints that arose during the course of production. Daniels testified that he has had to resolve staff complaints such as a writer consistently coming to work late, a writer-director taking too long in the editing room, and writer-producers giving members of the cast too many notes. According to Daniels, he is the “ultimate arbiter of what goes in the show.” Kring testified that he acts as a “parent, mediator, and arbitrator of various conflicts that go on.” He indicated that as problems develop he talks with the involved staff and tries to reach some accommodation on the issue. According to Kring, problem solving is an important part of his show runner duties. Rovner also testified that one of his responsibilities is to mediate problems on the set. He gave the example of having to resolve the problem of an actor who felt he was working too much, and of a director concerned about the ethnicity of one of the actors cast for a particular role.
While the grievances/complaints resolved by the show runners
were oral and “informal” in the sense that they were not steps in a grievance
and arbitration procedure, they certainly had the capacity to become “formal”
if they were not resolved at an early stage.
The television broadcast industry is heavily unionized, with not only
the writers, but the work of the directors, actors, and technical crews covered
by collective-bargaining agreements.
Certainly a failure by the show runner to resolve disputes with the
members of any of these bargaining units might lead to the filing of a formal
grievance under the terms of the applicable contract. In Sheet
Metal Workers Local 68 (DeMoss Co.), 298 NLRB 1000, 1003 (1990), the Board
concluded that adjusting grievances at a low level, before they become
formalized in the grievance arbitration procedure, conforms to the grievance
adjustment requirements in Section 8(b)(1)(B).
According to the Board, one of the purposes of that Section of the Act
is to protect the employer’s interest in having an individual of its own
choosing to represent it in dealings with the union that represents its employees.
In conjunction with their responsibility to resolve grievances, the show runners were required to interpret the various collective-bargaining agreements on behalf of the Employers. In fact, in many instances the adjustment of grievances involves an understanding of the contractual rights of other employees. For example, Daniels’ resolution of the dispute over excessive time spent in the editing room by a writer-director could have had potential ramifications under the Directors Guild of America collective-bargaining agreement.
It is significant to note that a dispute over the exercise
of contract interpretation is at the very heart of this proceeding. The Employers and the
The duties and responsibilities of the Employers’ show runners far exceed those which the Board has often found sufficient to establish that an individual is an 8(b)(1)(B) representative. In Local One, Elevator Constructors of New York & New Jersey (National Elevator Industry, Inc.), 339 NLRB 977 (2003), a foreman, referred to in the elevator industry as a “mechanic in charge,” had no authority to hire or fire employees of the sort possessed by the show runners. He did have the authority to resolve employee disputes and problems including job assignments, like the show runners, and also to resolve pay disputes and assign overtime. The Board concluded that the fines issued to this individual violated Section 8(b)(1)(B) as they would likely have an inhibiting effect on his future conduct as a supervisor, company representative, and grievance adjuster. Similarly, in Local 36, Elevator Constructors (Montgomery Elevator Co.), 305 NLRB 53 (1991), the Board held that a “mechanic in charge” was fined by his union because of the way he interpreted the contract regarding the use of a crane. According to the Board, the imposition of the fine would potentially have an adverse effect upon his future performance as a management representative and grievance adjuster. In finding a violation of Section 8(b)(1)(B), the Board was not dissuaded by the individual’s lack of participation in the collective-bargaining process or the formal contract grievance procedure.
The duties and responsibilities of the Employers’ show runners
are significant as they impact on the Employers’ contractual relationship with
the
2. The alleged threat to discipline
This case is complicated by the fact that the show runner
hyphenates all have other duties and responsibilities, beyond their duties as
bargaining representatives, grievance adjusters, and supervisors. As is clear from the testimony of Daniels,
Kring, and Rovner, the show runners write program episodes themselves, and
rewrite and polish the episodes written by others. Those writing duties performed by the show
runners are covered by the MBA and, as noted, Daniels, Kring, Rovner, and
apparently most of the other show runners are members of the
It is axiomatic that unions have a First Amendment right
to communicate with their members.
However, when a union disciplines a member for a disagreement over the method by which that member performs his/her duties as a collective-bargaining representative or grievance adjuster, that union has violated Section 8(b)(1)(B) of the Act. Typically, where an individual has a dual role, one of which is collective-bargaining representative or grievance adjuster, the Board will determine in which capacity the union sought to discipline the individual. The Board has set forth this distinction as follows: “We recognize that a union’s discipline of a supervisor-member falls outside the proscription of Section 8(b)(1)(B) where the offense occasioning the discipline involves a matter purely of internal union administration, unrelated, either directly or indirectly, to any dispute between the union and the employer. This rule results in the finding of no violation where, for instance, a supervisor-member is disciplined for failing to pay his union dues or disturbing a union meeting. Carpenters Local 14 (Max M. Kaplan Properties), 217 NLRB 202, 202 (1975).
The Board’s approach is in conformity with the Supreme
Court. In fact, in a case dealing with
the same Union as in the matter at hand, also involving hyphenates, the Supreme
Court held that the Union violated the Act when it took disciplinary action
against the hyphenates for crossing a picket line during an economic strike to
perform duties only as supervisors, bargaining representatives, and grievance
adjusters. American Broadcasting Co. v. Writers Guild of
It is now necessary to consider the
The complaint specifically alleges that the
Specifically, paragraph 10(a) of the complaint sets forth
the conduct that allegedly occurred at the Pinot Bistro. As is discussed in detail earlier in this
decision, the
It is clear that Young was asking the show runners to
support the Union’s position and not perform writing services until an
agreement was reached with management, at which time the
Kring testified similarly to Daniels. He indicated that he could not recall specifics about Young’s presentation, but that in general Young wanted the show runners to put forth a “united front” and not perform witting services without an agreement. Kring testified that Young did not want the show runners “to write the content” for the webisodes. According to Kring, it was his “sense” that he should not be assigning others to write the webisodes either, and it was his “interpretation” that the show runners were being asked to stop doing any work on the webisodes.
It appears that there were a significant number of the Employers’
show runners present for the Pinot Bistro dinner meeting. Presumably, the General Counsel called to
testify as witnesses Daniels and Kring, because they were best able to support
the allegations in the complaint.
However, in terms of presenting “probative” evidence of unlawful
conduct, those two witnesses left a lot to be desired. In fact, the testimony of Daniels and Kring
is most notable for what they agree that Young did not say. Daniels testified that Young never mentioned
anything about fines or discipline for not supporting the
As is reflected by the language of the Act, for there to
be a violation of Section 8(b)(1)(B), there must be conduct that is “restraining
or coercing.” Clearly, Young wanted the
show runners not to perform writing services on webisodes until an agreement had
been reached. According to Daniels and
Kring, he did not define writing services for the assembled show runners,
likely assuming they knew what the term meant.
Apparently counsel for the General Counsel and counsels for the
Employers would contend that Young’s failure to do so would constitute a
suggestion to the show runners that performing writing services also included their collective bargaining and grievance
adjustment duties, such as producing the webisodes. However, I am unaware of any case law that
would require the
Not only did Young not indicate that writing services included the show runners’ production duties, or for that matter the assignment of writing duties to the writing staff and the review of that work, but he never mentioned anything about discipline for those members who did not follow the union line. Once again, counsel for the General Counsel and counsels for the Employers apparently contend that such a threat to discipline was implicit in Young’s request that the show runners put forth a united front and not perform writing services on the webisodes until an agreement was reached with the Employers. Such an inference is a leap of faith that I am not willing to make.
Counsel for the General Counsel and counsels for the Employers correctly argue in their posthearing briefs that actual harm to a representative’s performance of 8(b)(1)(B) duties is not necessary for a violation of the Act. The Board has held that actual union discipline is not a prerequisite to finding a violation, and that the mere threat of disciplinary action is sufficient under certain circumstances. Typographical Union Local 403 (Pennwell Printing), 274 NLRB 1492 (1985). Also, the threat need not be expressed, as an implied threat may be adequate to establish a violation. International Organization of Masters, Mates & Pilots (Marine Transport), 301 NLRB 526, 563–564 (1991), enfd. in part and remanded, 955 F.2d 212 (4th Cir. 1992).
However, in the case before me there is absolutely no evidence
that Young made any mention whatsoever of discipline at the Pinot Bistro
meeting. In fact, from the testimony of
Daniels and Kring, it appears that the meeting was very congenial with the
Union merely requesting of its members, who happened to be show runners, that
they support the
The only evidence offered by the General Counsel to prove the allegation regarding Young’s statements at the Pinot Bistro meeting on July 26 was the testimony of Kring and Daniels.20 From that testimony, I find no probative evidence to support the complaint allegation that Young threatened the show runners, either expressly or impliedly, with discipline for performing their 8(b)(1)(B) duties.21 Accordingly, the General Counsel having failed to meet her burden of proof, I shall recommend that complaint paragraph 10(a) be dismissed.
Paragraph 10(b) of the complaint alleges that on August 2
and 11, the
Contrary to the contention of the General Counsel and Employers, I see nothing in the August 2 correspondence from the Union as could reasonably be construed as a demand that show runner hyphenates cease the performance of their nonwriting work. The attached second letter makes it clear that those individuals with personal service contracts who should not be performing services for webisodes without a negotiated collective-bargaining agreement are “writer-producers, story editors and other writers in similar positions.” (Emphasis added by the undersigned.) I see no evidence, expressed or implied, that the letter is written in an attempt to “restrain or coerce” show runners in their capacity as collective-bargaining representatives and/or grievance adjusters. Further, there is certainly nothing in these documents as mentions or even alludes to fines or other discipline for failure to follow the union line.
Similarly, I see nothing unlawful about the
All three of these documents are in evidence and “speak for themselves.” (GC Exh. 17–19.) Of course, the General Counsel and the Employers argue that the documents should not be viewed in a vacuum, and that when coupled with the Union’s other actions establish that the Union’s intention was to “restrain or coerce” the show runner hyphenates in violation of the Act. As I have already concluded, Young’s statements at the Pinot Bistro restaurant did not constitute a violation of the Act. However, counsel for the General Counsel and counsel for the Employers offered other evidence, not alleged in the complaint, as support for their theory of the case. This evidence consisted of testimony from Vivi Zigler, the Employer’s vice president of digital entertainment and new media, and correspondence from several lawyers representing show runner hyphenates. (GC Exhs. 10, 21.) In both instances, I have concluded that the evidence, if offered to prove the truth of the matter asserted, that being that the Union’s action was designed to threaten or coerce the show runner hyphenates into not performing their nonwriter duties, was inadmissible as hearsay.
Zigler testified as to a number of conversations that she had with show runner hyphenates about their alleged reluctance to work on the Employers’ planned webisodes, as long as the Union objected to such work being performed outside the parameters of a negotiated collective-bargaining agreement. This testimony was permitted so as to establish the Employers’ subsequent course of action.22 However, so far as the truth of any statements made by show runner hyphenates about their feelings, why they declined to work on webisodes, or any contact they may have had with representatives of the Union, that testimony is plainly hearsay and inadmissible. Further, so far as the written statements made by attorneys representing Daniels and Kring about the alleged reasons for their clients’ reluctance to work on webisodes, or the contact they may have had with representatives of the Union, such evidence constitutes hearsay and is inadmissible, except as it establishes the Employer’s subsequent course of action.
I find no credible, probative, or admissible evidence to
support the General Counsel’s contention that the
As mentioned above, unions have a First Amendment right to
communicate with their members. United States v. CIO, supra; Thornhill v.
In summary, as I reflect on the evidence offered by counsel for the General Counsel and counsels for the Employers in support of the alleged violations of the Act, I am really at a loss to see where there is any significant credible, probative, or admissible evidence of any violation of the Act as alleged in the complaint.24 Accordingly, based on the above, I shall recommend that the complaint be dismissed in its entirety.
Conclusions of Law
1. Universal Network Television, LLC. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. NBC Studios, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
3. The Respondent, Writers Guild of America, West, Inc., is a labor organization within the meaning of Section 2(5) of the Act.
4. The Respondent did not violate the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended25
ORDER
The complaint is dismissed.
Dated,
1 The General Counsel has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
1 NBC Universal is the parent company of both Universal and NBC.
2 The Respondent’s answer denies knowledge of the filing and service of the charges. However, the formal papers received in evidence establish that the charges were properly filed and served on the Respondent on the dates alleged in the complaint. (GC Exhs. 1(a)–(d).)
3 All dates are in 2006, unless otherwise indicated.
4 The credibility
resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and
the demeanor of the witnesses. See NLRB v. Walton Mfg. Co., 369
5 MBA is an acronym for minimum basic agreement.
6 The actual dispute
between the Employers and the
7 The Employers have continued to “reserve” the alternate position that since the webisodes are “promotional” in nature, writing such material does not come within the jurisdiction of the MBA.
8 Young had previously
been the acting executive director of the
9 I assume that in this discussion the references to “union members” were really intended to be references to “members of the bargaining unit.”
10 It should be noted that the complaint does not specifically allege any statements made by Young at the May meeting to constitute a violation of the Act.
11 Daniels
previously informed Berkowitz that Kessler had indicated a willingness to join
the
12 In the television broadcast industry, “residuals” may be very significant financially, as the reuse/rebroadcast of programs can potentially reward a program’s writers for many years after the original work was produced.
13 This e-mail was sent by Kring in his capacity as the show runner for “Heroes,” another NBC program.
14 It should be noted that the complaint does not specifically allege any statements by Young at the July meeting with management to constitute a violation of the Act.
15 The term “digital extensions” refers in general to all “platforms” over which internet programming can be broadcast, such as hand-held devices (like cell phones) and computers.
16 The
parties stipulated at the hearing that the
17 The term “personal service agreement” as used in the industry for show runner hyphenates refers to an agreement for the show runner’s compensation and credits above and beyond the minimum provided for writing services in the MBA, as well as compensation and credits for duties not considered writing services under the MBA. Apparently virtually all show runners have such agreements with the respective studies for which they are employed.
18 While
these letters from attorneys representing Daniels and Kring were admitted into
evidence, their probative value is quite limited. In my opinion, they constitute hearsay so far
as any statements purportedly made by agents of the