In The Matter Of Arbitration Between
NABET - CWA, LOCAL 31 AFLCIO
NATIONAL PUBLIC RADIO
AM Case Number: 303000067403
.) .) .) .) .) .) .) .) .)
Joshua M. Javits, ARBITRATOR
For the Employer: Susan Dunnings Marian F. Hale
For the Union: Paula M. Olsen
Date of Hearing
May 24, June 23, and August 8, 2004
Date of Briefs: August 27, 2004
Date of Award
September 12, 2004
Did the Employer violate Article 5B.1a of the Collective Bargaining
Agreement with the National Association of Broadcast Employees and
Technicians (NABET) by failing to send a Broadcast Reporting Technician (BRT)
with NPR's Scott Simon to Iraq in April 2003 when he was accompanied by
additional staff support?
If so, what shall be the remedy?
In April 2003, the Employer sent two of its employees, Scott Simon, Host
of Weekend Edition, and Peter Breslow, Weekend Edition Executive Editor, to
Iraq in order to provide war coverage reports to the network and its affiliates.
Both Simon and Breslow spent 4 weeks in Iraq filing material from the remote
location to the network.
Throughout that period of time, no broadcast reporting
technician (BRT) was present to assist the two employees with technical support.
On April 15, 2003, the Union filed a grievance contending that the
Company was in violation of the NABET/NPR collective bargaining agreement by
allowing a show host, Scott Simon, to travel to Iraq with additional support staff
but without providing a unit member for technical support. Specifically, the Union
contends that the Employer violated Article 5B.1 a of the CBA by its actions.
Article 58.1 a of the Agreement provides:
"The aRT shall be responsible for maintaining the technical quality of NPR audio material. The aRT shall have responsibility for operating technical equipment in technical facilities. The aRT shall also have responsibility for multi-microphone and multi-track recording, mixing and processing (altering) of audio signals, live program transmissions, as well as tape syncs within a fifty mile radius of NPR headquarters or any bureau. Additionally, when NPR DrOgram hosts or those temDorarilv assianed as hosts travel with additional staff SUDDort. a unit member will be assigned to accomDanv the host for the DUflJOSe of Droviding technical and other needed SUDDort. The support may also be expected to provide technical support services for noncommercial or commercial entities that enter into a contractual afTangement with the Company. aRT's may be assigned to perfom1 edits and lay ups. "
Position of the Parties:
The Union contends that under Article 58.1 a of the Agreement, when
NPR program hosts or those temporarily assigned as hosts travel with additional
support staff, a unit member must be assigned to the host for the purpose of
providing technical support.
The Union asserts that as Scott Simon was a recognized program host
within NPR, and as he traveled to Iraq with a production assistant, the provision
of Article 58.1 a at issue here is applicable to the present case. That being the
case, the Employer was contractually bound to permit a broadcast reporting
technician to travel also.
By failing to do so, the Employer violated the parties'
The Union rejects the notion that, at the time he was filing reports from
Iraq, Scott Simon was not acting as a program host, and was temporarily
reclassified as a reporter.
The Union acknowledges that, under the Agreement, a remote reporter is
not required to have a broadcast reporting technician present when working in
the field. In those circumstances, a reporter is permitted to perform the technical
fieldwork himself without triggering the obligation under Article 58.1a. However,
the Union maintains that Scott Simon was, and remained, a program host during
his time in Iraq. To support this contention, the Union notes that Simon was paid
at the rate of a program host during his time in Iraq, as opposed to that amount
paid to reporters.
Furthermore, the Union asserts that during his time in Iraq,
Simon continued to be held out to the public as a program host and to file reports
for his Weekend Edition show.
This being the case, the Union maintains that
Article 58.1 is triggered in these circumstances.
The Union also contends that program "hosts" need technical assistance
over and beyond that normally required by reporters, as they are not used to the
technical chores associated with in the field reporting. This, the Union suggests,
was the rational behind the relevant contractual provision.
The Employer contends that while on assignment in Iraq, Simon was
working as a reporter for NPR, rather than a host. The Employer also notes that
the language in Article 58.1 a of the Agreement does not apply to reporters or
correspondents traveling with additional support staff. Therefore, as Simon was
acting as a reporter during his time in Iraq, NPR was not bound to provide a
broadcast reporting technician,
The Employer contends that the essential duties of a "host" are outlined in
the AFTRA/NPR Agreement.
The relevant provision therein provides that a host
"provides continuity between items on a program; participates in production of
the program; and anchors programs and conducts interviews for those
programs." As Simon was not performing any of these functions during the four
week period he was in Iraq, the Employer maintains this supports its assertion
that he was not in fact a host for that period of time.
The Employer also refers the Arbitrator to the relevant Article in the
AFTRA/NPR Agreement which outlines the primary duties of a reporter. That
provision provides that a reporter "develops ideas/proposals for reports and
programs; gathers information and materials for reports and programs; and
prepares and presents reports and program segments.
Given that Simon filed
reports for most of NPR's news magazine shows and news slots, and not
exclusively for Weekend Edition Saturday, this indicates that he was working as
a reporter for the benefit of the entire network, just like other NPR reporters.
The Employer contends that the parties' bargaining history provides
support for the contractual interpretation it has presented. The Employer asserts
that during negotiations with the Union, the issue of whether a host who was
conducting remote reporting would be required to use a broadcast reporting
technician was addressed. Specifically, the Company contends that this issue
arose following a dispute with the Union as to whether a BRT should have
accompanied Simon when he had previously conducted work as a reporter from
Therefore, the Employer contends that the Union understood and
accepted that it was permissible for a program host to act as a reporter in certain
instances without triggering the obligations of Article 58.1 a.
Decision and Award:
It is clear that Scott Simon, NPR program host for Weekend Edition
Saturday, went to Iraq for a one month period (April 15 to May 14, 2003) to do
remote reporting work with producer Peter Breslow, for NPR. However, as a
broadcast reporting technician was not dispatched along with Simon to provide
technical support, the Union alleges this to be a violation of Article 58.1 a of the
The Employer accepts that Simon is ordinarily a program host for NPR,
and that he traveled with a support staff to Iraq. However, it contends that he
was not obligated to bring a BRT along to provide technical support.
given by the Employer is that at the time he traveled to Iraq, Simon was not in
fact acting as an NPR program host, but rather as an NPR reporter. In essence,
the Employer asserts that Simon's job functions in Iraq were different and distinct
from that performed by a program host.
The Employer notes that a program host prepares and conducts
interviews, presents feature pieces, news spots, and several other segments
which he helps create and write for the show in question. During this process,
the host is provided with considerable support staff to successfully perform the
This is contrasted with the role of a reporter, who is working on only one
news story at a time, with a singular focus. While on remote location, a reporter
will obtain the necessary information for his piece and will thereafter file his report
at the end of the day.
During the one month period in Iraq, Simon filed many news stories, which
were aired on a variety of NPR programs, including the Weekend Edition
Saturday program which he ordinarily hosted. The Employer's argument is that,
given the nature of the duties he performed in Iraq, it is clear that Simon was not
working as a host.
Thus, the Company maintains that it was not subject to the
requirements of Article 58.1 a - the requirement that a host travel with a 8RT.
That being said, the Employer does accept that there would be certain
occasions when Article 5B.1a would be applicable when a host is out in the field
putting together a report. However I this would only be relevant where the report
being prepared is to be aired on the show that the host would be hosting. An
example of this, the Employer contends, is the piece prepared by Simon on Peter
Pan learning to fly on stage. Although Simon was out in the field "reporting" in
this piece, this reporting was done solely in the context of hosting the Weekend
Edition Saturday Program and the report was aired only on that program.
Based on the foregoing, it appears that the central issue of the present
dispute relates to whether Simon was in fact still a host while working in Iraq, as
the Union contends, or whether, as the Employer contends. Simon was
temporarily reclassified as a reporter for that one month period.
As noted above, Article 5B.1a provides "when NPR program hosts or
those temporarily assigned as hosts travel with additional staff support, a unit
member will be assigned to accompany the host for the pulpose of providing
technical and other needed supporl. "
Close examination of the contractual language above appears to suggest
that the wording of Article 58.1 a applies not specifically to an individual who is
ordinarily considered to be the program host. Rather, by incorporating the words
"or those temporarily assigned as hosts" the provision of Article 58.1 a designates
not the person, but the position as that triggering the BRT obligation. For
instance, if, while Simon was away in Iraq, the acting host of Weekend Edition
Saturday did a field report as part of his or her program hosting duties, Article5
B.1a would presumably apply to them. Moreover, the use of the disjunctive "or"
rather than "and" ("NPR program hosts or those temporarily assigned as hosts")
further supports that the notion that Simon is not, for the purposes of the
provision, a "host" while another individual acts as the host of Weekend Edition
Therefore, the Arbitrator rejects the contention of the Union that as Simon
was ordinarily a program host, he should always be considered such, regardless
of the duties he is performing at that time. Once Simon was replaced by another
individual who assumed the role of acting host, the obligation of Article 58.1 a
attached to that individual's position
Consequently I the Arbitrator concludes that
the Employer was permitted to reclassify Simon as a remote reporter, even
though it was generally assumed that Simon would return to his host position
once he returned from Iraq.
Moreover, the duties performed by Simon in Iraq appear to closely
correlate those ordinarily performed by other reporters. While in Iraq, Simon
gathered information and materials before generating reports for a variety of NPR
programs and news slots. Although some of his reports were aired by the
Weekend Edition Saturday show, they were not executed solely for the benefit of
that show alone. On the contrary, the reports were created for the benefit of the
entire NPR network and were actually used on several other shows.
persuades the Arbitrator that Simon's function was more akin to reporter than
that of a host,
Furthermore, considering the collective bargaining negotiations between
the parties, it also seems that the Union is misinterpreting the contract language
of Article 58.18.
During these negotiations, management for NPR sought to
restrict the work jurisdiction of the bargaining unit employees, including BRT's,
and the circumstances under which the Employer would be required to use
BRT's. Essentially, the Employer sought to maximize flexibility and management
discretion with respect to the use of BRT's. On the other side, the Union sought
to preserve NPR's prior policies and practices using BRrs.
Moreover, the Union suggests that Article 5B.1a was a quid pro quo for all
of the "exceptions" to its exclusive jurisdiction as set out in the parties'
Yet, the present dispute relates to the extent of the language used in
Article 58.1 a of the Agreement - even if there was a quid pro quo as the Union
Similarly, the union asserted that the rationale for the provision was that
hosts have special deficiencies requiring technical assistance. While an
argument for the provision, it was not accepted by management. In essence,
each side had its own rationale for dividing jurisdiction
That being said, what is perhaps most compelling with respect to the
present dispute was the testimony given by NPR's Executive Vice President Ken
Stem and NPR negotiator Susan Dunnings 1
Both testified that the Employer
had specifically addressed in the negotiations an earlier incident where Scott
Simon had gone to Afghanistan to conduct work as a remote reporter.
testimony suggests that the Employer was determined to address the specific
situation of when a host would perform reporting duties, and whether they would
be required to use a BRT in those circumstances. Stern noted that he informed
others at the negotiating table that NPR was not interested in changing the status
quo that allowed the assignment of Scott Simon to report from places like
Afghanistan without an engineer. Dunnings corroborated this version of events
when she testified that the case of Simon's reporting from Afghanistan was
specifically mentioned during negotiations in February 2002. She also recalled
Stern remarking that NPR was not prepared to permit a model which would
require three individuals on a remote location
In contrast to the detailed history of the negotiations recorded by
management, and the fact that notes taken by Dunnings clearly illustrate the
Simon issue had been explicitly addressed during the relevant bargaining
session, the Union failed to rebut this evidence
In fact, the Union's witness
failed to recall that the Simon issue had ever been addressed during the
I Although Ms. Dunnings acted as lead counsel for NPR during the arbitration hearing, the Union
acquiesced in her request to act as a witness.
negotiations. As a result, the Arbitrator is compelled to accept the detailed
account of the bargaining history forwarded by the Employer.
The fact that
detailed notes documented the precise issue at hand here corroborates the
evidence given by two witnesses who represented management at the
bargaining table at the time of the discussion. Confronted with management's
articulated interpretation of the provision during negotiations, it was incumbent
upon the Union to oppose that interpretation; otherwise acquiescence is
During the hearing, the Union presented extensive documentation
showing that Simon was identified and perceived by himself, NPR and the public
as the "host" of Weekend Edition Saturday. Thus. the Union argued that the
position and the person were essentially the same. Moreover, the Union noted
that Simon was paid under the AFTRA contract at the host rate, and his pay
status was not altered when he was working in Iraq
However, while working in
Iraq, Simon was in fact acting in the role of a reporter as described in the AFTRA
job description. Furthermore, he was provided a temporary job change status to
reporter (NPR Exhibit 6).
Therefore, based on the reasons set forth, and considering all of the
evidence and testimony presented during the hearing, the Arbitrator concludes
that the Employer was not in violation of Article 58.1 a of the parties' Agreement,
as Scott Simon was not acting as a host during his period of time in Iraq.
Rather, Simon was acting as a remote reporter, and consequently, was not
required to make use of a broadcast reporting technician as the Union alleged in
The grievance is denied.