In The Matter Of Arbitration Between

NABET - CWA, LOCAL 31 AFLCIO

"Union"

and

NATIONAL PUBLIC RADIO

"Employer"

AM Case Number: 303000067403

.) .) .) .) .) .) .) .) .)

BEFORE:

AWARD

Joshua M. Javits, ARBITRATOR

APEARANCES:

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

Issue:

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?

Backaround:

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.

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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. "

[Emphasis Added]

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.

Agreement.

By failing to do so, the Employer violated the parties'

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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

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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.

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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

Afghanistan.

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

Agreement.

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.

The reason

given by the Employer is that at the time he traveled to Iraq, Simon was not in

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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

program

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.

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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

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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

Saturday.

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

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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.

This

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'

agreement.

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

maintains,

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

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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.

Their

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.

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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

assumed,

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.

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,

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

their grievance.

The grievance is denied.

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