International Alliance of Theatrical Stage Employees

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX D Computation of Back - Pay due Joseph S. Aguiar Period Net Back Pay June 25 to 29, 1954-------------------- Gross back pay--------------- ____________ $25.29 ----___--- Interim earnings -------------- ------------ ------------ ---------- Net back pay----------- ------------ ------------ $25 29 Quarter ending Sept . 28,1954_________ Gross back pay_______________ ____________ 1,302. 13 ---------- Interim earnings -------------- $910 70 ------------ Less. Expenses---------------- 18 90 ------------ ---------- Not interim earnings---- ------------ 591.80 _ 410 33 Quarter ending Dec. 31 , 1954_ ________ Gross back pay_______________ ____________ 1 , 428.12 _ Interim earnings -------------- 946 30 ____________ ---------- Less. Expenses---------------- 21.52 ____________ ---------- Net interim earnings---- ------------ 924.78 _ 34 503 Jan. 1-Feb. 1 , 1955 ------------------- Gross back pay--------------- ------------ 481 04 . _ Interim earnings -------------- 441.60 _______ _____ ---------- Less- Expenses--------------- 13 20 ____________ ---------- Net interim earnings__ __ ____________ 428.40 ---------- b2 64 . May 28-June 28,1955 _________________ Gross back pay--------------- ------------ 387 72 _ Interim earnings- ------------- 285.60 ------------ Less: Expenses________________ 10.56 - ----------- Net interim ea rnings____ ____________ 275.04 _ 68 112. Quarter ending Sept. 27,1955--------- Gross back pay--------------- ------------ 1,341.35 _ earnings-------------- 724 20 _ Less: Expenses---------------- 23 76 ------------ Net interim earnings---- ------------ 700.44 _ 640.91 Quarter ending Dec. 31,1955 _________ Gross back pay_______________ ____________ 1,442. 04 ---------- Interim earnings______________ 1,478 84 ------------ ---------- Less . Expenses---------------- 34.32 _ Net interim earnings ____ ____________ 1,445 52 __________ Jan.I to 26,1956_____________________ Gross back pay____ ___________ ____________ 335.52 _ Interim earnings-- ------------ 446 40 _ _---------- ---------- Less: Expenses ---------------- 10.56 _ Net interimearnings ____ ____________ Total back pay due_____ ____________ 1,745.19 International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Can- ada, Local No. 409, AFL-CIO [Columbia Broadcasting System, Inc.] and Amos R. Kanaga. Case No. 20-CB-48.86. December 13, .7957 DECISION AND ORDER On April 4, 1957, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the 119 NLRB No. 117 INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 811 Respondent had not engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, as alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the complaint herein against the Re- spondent, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 409, AFL-CIO, be, and it hereby is, dismissed in its entirety. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and Order. I Like the Trial Examiner, we are unable to find on the evidence that an exclusive hiring- hall agreement or arrangement , express or tacit, existed between CBS and Respondent Union. Consequently , it is unnecessary that we pass upon the question of whether such an agreement or arrangement is legal under the Act. We therefore do not adopt the dictum in the Intermediate Report which implies that an exclusive hiring-hall agreement is illegal. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On October 11, 1956, Amos R. Kanaga, an individual , filed with the National Labor Relations Board, herein called the Board, a charge against International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 409, AFL-CIO, herein called the Union, charging the Union with unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act . Upon this charge, the Acting Regional Director for the Twentieth Region, on behalf of the General Counsel of the Board , on December 27, 1956, issued a complaint alleging, in substance , that the Union, having an exclusive authorization to supply CBS with stagehands to be used in preparing television performances, on about August 8, 1956, refused to clear, dispatch , refer, or assign Kanaga to work as a stagehand for CBS although jobs were then available because said Kanaga had failed and refused to pay certain fines and costs which had pre- viously been assessed against him by the Union and did thereby cause CBS to refuse to employ said Kanaga. On January 8, 1957, the Respondent filed an answer admitting that CBS had granted exclusive authorization to the Union to supply it with stagehands to be used in preparing television performances as alleged in the complaint, but denying that the Union refused to clear, dispatch , refer, or assign Kanaga to work as a stagehand, although such jobs were then available, because Kanaga had refused to pay certain fines and costs which had previously been 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assessed against him by the Union, and denying that the Union did thereby cause CBS to refuse to employ said Kanaga. Pursuant to notice a hearing was held at San Francisco, California, on January 28, 1957, before me as the duly designated Trial Examiner. At the close of the General Counsel's case, the General Counsel moved to amend the complaint with respect to matters of names and dates to conform to the evidence. The motion was granted. At the close of the hearing, General Counsel argued orally on the record. The Respondent chose not to argue orally, but requested time to file a brief. Such time was given and a brief was received from the Respondent and has been considered. On March 19, 1957, the hearing was ordered reopened to permit the parties to offer further evidence either by way of stipulation or testimony of witnesses and on March 29, 1957, such stipulation was filed and the hearing was closed. By the same stipulation the Respondent amended its answer to deny that it had been granted exclusive authority to supply stagehands for CBS as alleged in the complaint. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE FACTS OF COMMERCE The complaint alleged and the answer admitted that CBS Television, a division of CBS Broadcasting System, Inc., herein called CBS, is a Delaware corporation and maintains its principal office and place of business in New York City, New York; that CBS owns and operates radio and television transmission facilities in New York City and in various other cities of the United States; and that the annual gross revenue of CBS exceeds $10,000,000. The issue here involved concerns an attempt by an employee to get employment with CBS during the Republican National Convention in San Francisco in August 1956, and I take official notice of the fact that the broadcast of that convention was on a national hookup. No issue is raised with respect to jurisdiction of the Board. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization representing employees known as projectionists and stagehands in dealing with employers concerning terms and conditions of em- ployment. It is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Fadtual events On May 16, 1956, the Union assessed a fine and costs against its member, Amos Kanaga, which Kanaga refused to pay. He appealed the fine to the international organization, but his appeal was ultimately denied. On July 31, 1956, although his dues had been paid to the end of the year 1956, Kanaga was suspended from the Union for nonpayment of the aforesaid fine and costs. On July 17, 1956, following an oral agreement made in June between John Turturisi, the business agent for the Union, and Albert Raymond, assistant manager of television production for CBS Television, the latter wrote to Turturisi confirming the previous oral agreement authorizing the Union to supply CBS Television with 10 stagehands for setup at the Cow Palace (in preparation for the Republican National Convention) beginning on August 6, 1956. According to the agreement between Turturisi and Raymond, CBS would revert to 2 crews of 3 men each after the setup was completed for the balance of the period of the convention. It was expected that the setup would take about 10 days, and that there would be about 4 days of convention broadcasting. Before the conclusion of the convention, however, CBS authorized the Union to supply eight additional stagehands, and the Union supplied all hands authorized by CBS. The 18 stagehands so supplied by the Union were the only stagehands employed by CBS at the convention. The actual hiring of the men referred by the Union was done by Raymond, who supervised and paid the stagehands. Raymond did not seek to, and did not, hire any employees in the classification of stagehands except those referred by the Union. The Union had never had any prior dealings or understandings with CBS. In the latter part of July 1956, Kanaga spoke to Barclay Smith, the assistant busi- ness agent of the Union, whose job it was to place stagehands, and asked for em- ployment on the CBS job. At that time Smith did not give Kanaga a definite answer. Again about August 6, 1956, Kanaga spoke to Smith about being placed on the CBS job at the Cow Palace, and Smith replied that he was sorry, that he could INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 813 not put Kanaga to work because , according to a ruling of the executive board of the Union, he was not obligated to put him to work unless he paid his fine.' One of the provisions of the Union's constitution and bylaws is that after a mem- ber is suspended for failure to pay dues or fines "he shall be replaced on his job by the business manager without further notice." The Union's bylaws also provided a fine of $100 for members who procured their own employment without consent of the Respondent or its business manager. It was stipulated that this provision applied to suspended members as well as to members in good standing . Among stagehands referred to the CBS convention job by Smith were nonmembers of the Union, who were issued permits by the Union after it ran short of enough of its own members and members of sister locals to assign to the job. B. Arguments and conclusions It is the General Counsel's position that the Union caused CBS to deny Kanaga employment by virtue of the fact that hiring by CBS was done exclusively through the Union, pursuant to an agreement which should be inferred to be an exclusive hiring-hall contract. The Union contends that there is nothing to show that re- ferral by the Union was a prerequisite to employment of Kanaga or other personnel by CBS, and that there was no evidence of any agreement or understanding between CBS and the Union whereby the Union was to be the sole source of supply of labor. (1) Conclusions respecting violation of Section 8 (b) (2) of the Act Aside from cases in which a union engages in discriminatory practices under a lawful union-security contract, which is not present here , violation of Section 8 (.b) (2) of the Act is usually evidenced by the effect given to an unlawful voluntary ex- clusive hiring-hall agreement, express or tacit , or by discrimination by an employer against an employee or applicant for employment where the employer's act is coerced by a union through threats of economic reprisals . If a violation of Section 8 (b) (2) is to be found here, it must be on evidence of an exclusive hiring-hall agreement or arrangement tacitly agreed to by union and employer, since there is no evidence that the Union otherwise took any step to influence CBS not to hire Kanaga. The essential factor to a finding of a violation of Section 8 (b) (2) of the Act in such a case is the employer's agreement to employ only members of the particular union or only those who have been given prior approval by that union .2 In such cases the employer accepts , as final, the union's determination as to who shall be permitted to work for him. Because Kanaga made no effort to procure employment at the Cow Palace except through the Union, it is impossible to determine whether or not, if he had applied direct to CBS, CBS would have refused to hire him without clearance by the Union, unless it can be inferred that CBS had bound itself by agreement to employ only men referred by the Union. The agreement between CBS and the Union does not on its face give the Union an exclusive hiring-hall contract . It does not on its face require that only men referred by the Union be employed. Agreements for hiring only men referred or cleared by a union have sometimes been inferred (in the absence of proof of an express agreement) from all the circumstances of the case, including the hiring practices of the employer and union.3 It must be decided here, then, whether or not the evidence suffices to establish the existence of any under- standing that only members of the Union or those referred by the Union would be hired although the expressed agreement does not so provide. Evidence of the Union's practices in this case is sufficient to show that it was accustomed to refer- ring its own members first ; then if it could not supply enough members, it would refer x Kanaga testified that Smith said that he had "orders" from the executive board that he could not be put to work unless he paid his fine . Again , he quoted Smith as saying that "that was his orders and I couldn't go to work until I .paid the fine." Smith gave appearance of being a mild-mannered man. He did not appear to be one to speak in a dictatorial manner as the phrase quoted from Kanaga's testimony might suggest. Smith's testimony appeared to be completely candid. I base the finding in the body of the text above on Smith's testimony as more accurate. 2N. L. R. B. V. Construction Specialties Co., 208 F. 2d 170 (C. A. 10) ; N. L. R. B. v. International Longshoremen's and Warehousemen's Union, et al. (Pacific Maritime Assn.), 210 F. 2d 581 (C. A. 9) ; Consolidated Western Steel Corporation, 108 NLRB 1041 ; Phila- delphia Iron Works, Inc., 103 NLRB 596; American Pipe and Steel Corporation, 93 NLRB 54; New York State Employers Association, Inc., 93 NLRB 127. 3 Seabright Construction Company, 108 NLRB 8; General Electric Company, 94 NLRB 1260. 814 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD available members of affiliated locals; and only if it could not procure a sufficient number of either one would it refer nonmembers or "permit" men. The Union's by- laws disclose a purpose to exercise a control over members' employment by restrain- ing them from making application for jobs except through the Union, and the bylaws provide that a suspended member "shall be replaced on his job by the business manager" of the Union. No evidence was offered, however, to show that CBS by express agreement or tacit understanding assented to the Union's assertion of the right to remove any CBS employees from their jobs, and no agreement to such effect can be inferred from the evidence presented. It does not even appear that CBS had knowledge of this provision of the Union's bylaws. No one but the Union actually referred employees to CBS on the job mentioned and CBS actually did not, on the convention job, hire or attempt to hire stagehands independently. But although it is a fact that CBS used men supplied by the Union, there is no evidence that it was ap- prised of the Union's practices or assented to a discriminatory hiring arrangement. No intent can be inferred from past practices since this is the only time CBS had had any dealings with the Union. It is conceivable that CBS had dealings with local unions, affiliated with the same parent organization, whose practices are the same as those of the Union and assumed that the Union would give preference to its own members and discriminate against others; and it is possible that CBS intended its contract with the Union to operate that way. People in repeated contact with craft labor organizations perhaps tend to expect such practices. But a finding here that CBS expected its contract to be an exclusive hiring-hall arrangement, with preference given to members of the Union in good standing, would be based on assumption and not on inference drawn from evidence. Furthermore, there is no evidence from which it can be inferred that CBS relinquished its right to hire employees independ- ently of the Union. The making of a discriminatory hiring agreement, by itself, has been held to violate Section 8 (a) (1) and (3) as well as Section 8 (b) (1). (A) and (2). But I could not, on the evidence contained in the record here, find that CBS had violated the Act by its authorization to the Union to supply a given number of men; so I cannot conclude that a mutual understanding existed. Since no agreement can exist unless both parties thereto assent, and since I am unable to find that CBS assented to hire only members of the Union or men referred by it, I find that the evi- dence fails to disclose that an agreement to that effect was made. It may be true that, independently of any agreement, the Union itself discrimi- nated against Kanaga in refusing to assign him to the CBS job, but such conduct does not, by itself, constitute a violation of Section 8 (b) (2) of the Act.4 Absent evidence of an illegal hiring-hall arrangement between the Union and CBS or other evidence that the Union caused or attempted to cause CBS to discriminate against Kanaga, no violation by the Union of Section 8 (b) (2) of the Act is shown .5 (2) Conclusions respecting violation of Section 8 (b) (1) (A) of the Act The complaint does not allege a violation of Section 8 (b) (1) (A) by any acts or conduct other than those alleged to be a violation of Section 8 (b) (2) of the Act. Thus, the alleged violation of Section 8 (b) (1) (A) is derivative from that conduct alleged to be a violation of Section 8 (b) (2) of the Act. As I have found that the Union did not violate Section 8 (b) (2) of the Act, no violation of Section 8 (b) (1) (A) derives therefrom. The complaint does not allege that the Union's refusal to refer Kanaga to the CBS job was, apart from the alleged exclusive hiring contract, a violation of Section 8 (b) (1) (A). But if the complaint might be interpreted so to allege, I should not be disposed to find a violation of the Act merely from the Union's refusal to refer Kanaga to the CBS job. The Union was under no legal obligation to find Kanaga a job. Unless it is shown that the Union has an exclusive hiring-hall contract, the law does not impose on the Union an obliga- tion to make references to employers or give clearances on a nondiscriminatory basis.6 4 Pacific American Ship Owners Association, 98 NLRB 582, 587-8. 6 N. L. R. B. v. Thomas Rigging Co ., 211 F. 2d 153 ( C. A. 9) ; Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L. (Bechtel Corporation), 108 NLRB 1070 ; Local No. 63 , United Brotherhood of Carpenters and Joiners of America, A. F. L. (J. L. Wroan & Son), 106 NLRB 231 ; County Electric Co., Inc., 116 NLRB 1080 ( case of Buell Winslow ) ; Motor Truck Association of Southern California, 110 NLRB 2151. ON. L. R. B. v. Thomas Rigging Co ., 211 F. 2d 153 ( C. A. 9) ; Local 595, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL (Bechtel Corpora- tion) , 108 NLRB 1070; Local No. 63, United Brotherhood of Carpenters and Joiners of America, AFL (J. L. Wroan & Son ), 106 NLRB 231. BROWN & ROOT CARIBE, INC. 815 The Union's bylaws no doubt impose a measure of restraint on its members, as such, but they do not restrain or coerce employees in the right to refrain from union membership or activity. The proviso to Section 8 (b) (1) (A) permits the Union to prescribe rules with respect to acquisition or retention of membership. If the Union's rules affect membership of those who choose to procure their own jobs rather than get them through the Union or as permitted by the Union, the Union's rules are protected under the aforesaid proviso so long as the Union does not cause or attempt to cause an employer to discriminate against such member except as authorized in Section 8 (a) (3) of the Act. Because it has been found that the Union did not cause or attempt to cause CBS to discriminate against Kanaga, I find that the Union did not restrain or coerce him or other employees in the exercise of rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. CBS is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Union did not cause or attempt to cause CBS to discriminate against Kanaga in violation of Section 8 (a) (3) of the Act and, hence, did not violate Section 8 (b) (2) of the Act. 4. The Union did not restrain or coerce Kanaga or other employees in the exercise of the rights guaranteed in Section 7 of the Act by refusing to clear, dispatch, refer, or assign Kanaga to work as a stagehand for CBS in violation of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] Brown & Root Caribe , Inc. and Sindicato de Empleados de Equipo Pesado, Construccion y Ramas Anexas de P. R., Sindi- cato de Trabajadores (Packinghouse ) de P. R., UPWA-AFL- CIO, Petitioner. Case No. 24-RC-1039. December 13,1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Frank H. Parlier, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer contests the Board's jurisdiction. The Employer was incorporated in 1957 to engage in the construction business in Puerto Rico. It is presently engaged in building a chemical plant for Union Carbide Caribe, Inc. The Employer is a subsidiary of Brown & Root, Inc., herein called Brown, a Texas corporation, which also does construction work and is admittedly engaged in commerce. According to a letter submitted by the Employer after the hearing and incorporated into the record by agreement as an exhibit, the Employer's manager is in charge of all aspects of the operation, in- cluding the hire and discharge of employees, wages, vacations and 1 The Petitioner's name appears herein as amended at the hearing. 119 NLRB No. 110.