Technicolor Motion Picture Corp.

TECHNICOLOR MOTION PICTURE CORPORATION 73 Technicolor Motion Picture Corporation and Hayden A. Bal- thrope Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO and Hayden A. Bal- thrope. Cases Nos. 21-CA-2172 and 21-CB-698. November 14, 1958 SUPPLEMENTAL DECISION ON REMAND On June 21, 1956, the Board issued a Decision and Order in this case' in which it found that Technicolor Motion Picture Corporation, herein called Technicolor, violated Section 8(a) (3) and (1) of the Act, by discharging employee Balthrope, and that Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL- CIO, herein called IATSE, violated Section 8(b) (2) and (1) (A) by causing such discharge, after Balthrope had paid his initiation fee to IATSE. In reaching this conclusion, a majority of the Board applied the principle of the Aluminum Workers International Union, Local No. 135, AFL, case 2 in which it held that a full and unqualified tender of dues at any time before actual discharge was a proper tender and a subsequent discharge was unlawful. Thereafter, the case was considered by the United States Court of Appeals for the Ninth Circuit upon the Board's petition for enforce- ment of its order. On September 24, 1957, the court issued its decision 3 in which it denied enforcement of the Board's order and remanded the case to the. Board for the reasons discussed below. In its opinion, the court expressed its disagreement with the Board's application of the Aluminum Workers principle. It held that, under the union-shop proviso to Section 8(a) (3) of the Act, a union may properly insist on a timely tender of initiation fees as required by a valid union-security agreement and that a belated tender, one made after the lapse of the 30-day period afforded by the agreement but prior to actual discharge, will not prevent a valid discharge.4 The court, however, indicated that circumstances may exist in the present case which may preclude the Respondents from relying on the belated tender to justify the discharge. Thus, the court stated (p. 355) : 1115 NLRB 1607. 2112 NLRB 619, enfd. 230 F. 2d 515 (C.A. 7). 3N.L.R.B. v. Technicolor Motion Picture Corporation, et at ., 248 F. 2d 348 (C.A. 9). 4 With all due respect to the court , Members Rodgers and Jenkins adhere to the views and interpretation of the Act set forth in the Board 's original decision in this case. In view of the fact that Member Fanning did not participate in the original decision in this case, and in view of the court's rejection of the Aluminum Workers principle as applied to this case , Member Fanning finds it unnecessary to express any opinion on that principle at this time. .. 122 NLRB No. 10. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . It was urged that there is here present conduct on the part of both the Union and the Company which precludes them from asserting their respective rights under the collective bargaining agreement . It is pointed out that the Respondents are (1) a Com- pany which was apparently in continual breach for over five months of its contractual duty to discharge errant employees who failed to join the Union and that the discharge was effected after the Company was made aware of Balthrope's payment of the initiation. fee and possibly after it learned that the Union had accepted the tendered check, and (2) a Union which demanded the employee's discharge after he had paid his fees and which took no action apparently to forestall Balthrope's discharge after it had accepted his tender... . ... Surely an employee must not remain perpetually vul- nerable to discharge because of tardiness in submitting initiation fees, irrespective of the conduct engaged in by the union or the employer. Either the employer or the union may by its actions be estoppel from asserting its particular rights under the col- lective bargaining agreement. The court also noted that, apart from the preclusion theory, Bal- thrope's discharge may have been caused by a reason other than a late tender of the initiation fee, and that Technicolor may have known that some other reason motivated the Union's demand for the discharge. As the Board made no findings with respect to the foregoing issues, the court remanded the case to the Board for "such proceedings as it deems justified in light of the views expressed" by the court. Thereafter, the Board ordered the record reopened and remanded the case for further hearing. Pursuant to such order, a hearing on due notice was held before Trial Examiner Wallace E. Royster. On April 28, 1958, the Trial Examiner issued his Intermediate Report, a copy of which is attached hereto, wherein he recommended that the consolidated complaint be dismissed in its entirety. Thereafter, the General Counsel, IATSE and Technicolor filed exceptions to the Intermediate Report and supporting briefs. 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 Intermediate Report, the exceptions and briefs, and the entire record 5 The Respondents except to the Trial Examiner's ruling which permitted the General Counsel to amend the complaint at the remand hearing. As our findings herein are en- compassed by the original allegations of the complaint, and are made without reference to the amended allegations , we find no prejudicial error was committed . Contrary to the Respondent's contention , we also find that the Trial Examiner properly received evidence in lieu of the stipulation previously entered into by the Respondents and the General Counsel. This evidence was received pursuant to the remand order issued by the Board in conformity with the Ninth Circuit's decision. TECHNICOLOR MOTION PICTURE CORPORATION 75 in this case, and hereby adopts only the factual findings of the Trial Examiner, but not his legal conclusions or recommendations.' The Trial Examiner found, and we agree, that the General Counsel did not prove by a preponderance of the evidence that the Respondent IATSE caused, and the Respondent Technicolor effected, Balthrope's discharge for any reason other than his failure to make a timely tender of his initiation fee. He therefore recommended dismissal of the complaint. The Trial Examiner, however, did not consider, as suggested in the court decision, whether the Respondents were pre- cluded from asserting their contractual rights to justify Balthrope's discharge by reason of IATSE's acceptance of his belated tender of his initiation fees. We now have before us a more complete record than that made at the first hearing in this case. As discussed in the Intermediate Report and shown in the record, Balthrope did not apply for mem- bership in IATSE and tender his initiation fee within the 30-day period provided in Respondents' union-security agreement. As a result, IATSE demanded that Technicolor discharge him. Upon learning this and in order to avert his discharge, Balthrope, who several years before had been expelled from the Union, spoke to IATSE's secretary-treasurer, David Arbuckle, in the latter part of November 1954 about rejoining the Union. It is clear that Balthrope, at this meeting, was seeking from IATSE a way to avert his dis- charge. Thus, according to Arbuckle, Balthrope wanted to find out what he could do to "save his job at Technicolor." Arbuckle advised Balthrope to put any offer he might make in writing so that it might be presented to the executive board of the organization for their con- sideration. Subsequently, on December 1, 1954, Arbuckle again advised Balthrope that the executive board could not consider the matter until he had submitted an application for membership, accom- panied by the $250 initiation fee. Thereupon, Balthrope mailed to IATSE his membership application, together with a check for $250, the full amount of the initiation fee. IATSE cashed the check, kept the money, but nevertheless persisted in its demand that Technicolor discharge Balthrope from his employment. In January 1955 Balthrope exhibited to Technicolor's personnel manager, Pottle, the canceled check showing payment to IATSE of his $250 initiation fee. Despite its knowledge of IATSE's acceptance of Balthrope's initiation fee, Technicolor's treasurer, Shattuck, discharged Balthrope on February 10, in the presence of Pottle. In view of the foregoing, and upon the entire record in the case, we find that the Respondent IATSE waived its contractual right to 6 The Respondents also requested oral argument . The request is hereby denied as the record, including the exceptions and briefs, adequately present the issues and positions of the parties. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demand Balthrope's discharge. It is clear that Balthrope tendered his initiation fee and applied for membership solely because of the compulsion of the union-security provisions of the Respondents' con- tract, and in order to protect his job. That IATSE was aware of this is equally clear. Therefore, when IATSE accepted Balthrope's initia- tion fee, though belated, and retained it with no apparent intention of returning it,' IATSE must be deemed to have accepted the initiation fee with the implicit condition that it would not demand Balthrope's discharge. The law is not so unconscionable as to sanction the for- feiture of a right where the party to whom the obligation was owing accepted performance of the obligation, simply because the perform- ance was late.8 The fact that IATSE made available its employment facilities and secured another job for Balthrope after his discharge does not justify, as the Respondents argue, IATSE's retention of the initiation fee, or establish that IATSE complied with the real purpose of the tender, which was to "save his job." In these circumstances, we find that the Respondent IATSE waived its right to demand Balthrope's discharge for not timely complying with the terms of its union-security agreement. We further find that, as the Respondent Technicolor had knowledge of these facts, it, too, was precluded from relying upon the contract to justify its discharge. Accordingly, we conclude that the Respondent IATSE violated Section 8(b) (2) and (1) (A) of the Act by causing the Respondent Technicolor to discharge Balthrope, and that the Respondent Techni- color violated Section 8 (a) (3) and (1) of the Act by acceding to the Respondent IATSE's demand. To remedy these unfair labor prac- tices, we reaffirm the Board's original order previously issued in this case. CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera- tion of the above Supplemental Decision on Remand. 7 This is indicated by the fact that as of the time of the remand hearing, which was held more than 3 years after Balthrope paid his initiation fee, IATSE had not returned his money. 8 "Where a contract expressly provides that 'time shall be of the essence' . . . per- formance on time is thereby made a condition of the obligor 's reciprocal rights under the contract. But the courts do not favor forfeiture . . . of money payments already made for which no equivalent will be received in case the 'condition' is insisted on and a 'forfeiture' enforced. 11. . . The acceptance of a delayed payment, whether of part or all of the amount then due, without any notice of intention to claim a forfeiture or discharge , is operative as a waiver with respect to the default which then exists." 3 Corbin on Contracts, Section 354. See also Williston on Contracts, Sections 680, 684, 1819 ; Restatement of the Law of Contracts, Section 296. SUPPLEMENTAL INTERMEDIATE REPORT On June 21, 1956,1 the National Labor Relations Board, herein called the Board, issued its Decision and Order in this proceeding, finding that Technicolor Motion Picture Corporation, herein called Technicolor, had violated Section 8 (a),(3) and (1) 1115 NLRB 1607. TECHNICOLOR MOTION PICTURE CORPORATION 77 of the Act and that Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, herein called the Local, had violated Section 8(b) (1) (A ) and (2) of the Act. The violations found concerned solely the discharge of Hayden A. Balthrope. Thereafter on September 24, 1957, the United States Court of Appeals for the Ninth Circuit denied the Board's petition for enforcement of its Order .2 In denying enforcement, the court remanded the cause to the Board "for such further proceedings as it deems justified in light of the views expressed in this opinion." On November 8, 1957, the Board , by appropriate order, reopened the record and remanded the proceeding to the Regional Director for the Twenty-first Region, Los Angeles, California, for the purpose of arranging a further hearing. Pursuant to due notice , a further hearing was held in Los Angeles, California, on March 17, 18, and 20 , 1958, before the duly designated Trial Examiner . All parties were represented by counsel and were afforded opportunity to examine and cross- examine witnesses and to introduce evidence pertinent to the issue. At the outset of the hearing, over the opposition of counsel for Technicolor and counsel for the Local , the General Counsel was permitted to amend the complaint upon which the Order of the Board was issued. The complaint , as amended at the initial hearing, alleged in respect to Technicolor the commission of unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act, by reason of the discharge of Balthrope at the request of the Local . In respect to the Local, that complaint alleged a commission of unfair labor practices within the meaning of Section 8 (b)(1)(A) and (2) of the Act by reason of a request and demand of Technicolor for the discharge of Balthrope for his failure to tender the periodic dues and initiation fees uniformly required as a condition for retaining membership in the Union and a causation of discharge because of Balthrope 's nonmembership in the Local, notwithstanding that the Local had at the time of causation in its possession initiation fees tendered by Balthrope. By amendment at the instant hearing, the complaint now alleges as to Technicolor that it discharged Balthrope at the request of the Local notwithstanding that it had reasonable grounds for believing that Balthrope's membership in the Local was terminated for reasons other than his failure to tender dues and initiation fees and notwithstanding that it knew that the stated reasons given by the Local for requesting discharge were not the true ones . In respect to the Local the complaint now alleges that it requested and demanded of Technicolor the discharge of Bal- thrope for reasons other than his failure to tender periodic dues and initiation fees and that it caused Balthrope's discharge because of his nonmembership in the Local notwithstanding that the membership of Balthrope was terminated for reasons other than a failure to tender periodic dues and initiation fees uniformly required as a condition of attaining or retaining membership in the Local. Upon consideration of the entire record in the case, including the original Decision and Order of the Board, the opinion of the United District Court of Appeals, the brief filed by Technicolor and the Local , and from my observation of the witnesses, I make the following: FINDINGS OF FACT The original record, consisting almost entirely of a stipulation , set forth these facts: 1. That on or about July 31 , 1954, Technicolor and the Local entered into a collective-bargaining agreement containing a valid union -security clause. 2. That Balthrope learned of the execution of this agreement shortly after July 31 and no later than September 7, 1954. 3. That Balthrope failed to apply for membership in the Local as required by the union-security provision of the agreement. 4. That the Local on August 31, 1954, and on October 1, 1954, demanded the discharge of Balthrope , pursuant to the terms of the collective-bargaining agreement. 5. That upon Technicolor's continued failure to discharge Balthrope , numerous oral demands were made upon Technicolor by the Local that it do so. 6. That on or about December 7, 1954, Balthrope made application for member- ship in the Local and delivered -a check to the Local in the amount uniformly required of all prospective members. 7. On February 7, 1955, the Local approved Balthrope 's application for membership. 8. On February 10, 1955, Balthrope was discharged by Technicolor. 9. On the same date the Local informed Balthrope that he was accepted as a member and that another position in the industry had been found for him. 248 F. 2d 348. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quoting from its decision in the Aluminum Workers case,3 the Board said, "A full and unqualified tender made at any time prior to actual discharge, and without regard as to when the request for discharge was made, is a proper tender and a subsequent discharge based upon the request is unlawful." Finding that Balthrope had paid the initiation fee before his discharge, the Board decided that the discharge in such circumstances could not be defended under the union-shop agreement. The Board ordered Technicolor to reinstate Balthrope and both Technicolor and the Local to make him whole for lost earnings. In denying enforcement to the Board's Order, the Circuit Court of Appeals held, in substance, that the union-shop proviso in Section 8(a)(3) of the Act authorized ,the execution of collective-bargaining agreements making time of the essence in regard to the tender of initiation fees, and held that the application of the Aluminum Workers doctrine was precluded. Noting the "skeleton character" of the stipulation and the lack of support in the record for the contention advanced in oral argument before the court that an alternative ground for enforcement existed, the court re- manded the case to the Board to take such further proceeding as it deemed justified to decide whether in fact Balthrope's discharge was caused by some reason other than failure to tender his initiation fee within the period allowed by the contract and to decide whether Technicolor had reason to be on notice of such motivation for the Local's reiterated demands for discharge. The court observed, "of course if any other reason or motive did play any part in causing Balthrope's discharge, the Union was guilty of an unfair labor practice and if the Company had reason to know the Union's true motive then it too committed an unfair labor practice. However the Board made no finding on this issue. A finding that the discharge was caused for a reason or reasons other than the failure to tender initiation fees or periodic dues is essential if the Order is to be enforced." Mindful of the Board's Order reopening the record "for the purpose of receiving evidence relevant to the questions and issues described in the opinion of the United States Court of Appeals for the Ninth Circuit," I have received and considered all evidence, testimonial and otherwise, offered by the parties within my concept of relevancy. The incidents and events about to be related are set forth in chronological order and except where noted are based upon uncontradicted evidence. In June 1949 the president of International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, herein the International, upon the basis of proceedings which are not here under attack, assessed a fine of $500 against Balthrope which if not paid within a stated period matured into expulsion from the International and from the Local. The fine was not paid. In November of that year, having recently obtained re- employment with Technicolor, Balthrope attempted to pay dues to the Local. His proffer was rejected with the comment that he had been expelled from the Local by the International. Balthrope remained in his employment at Technicolor. In 1952 another employee not shown to have been acting as an agent of the Local or the International in any respect, caused Balthrope some embarrassment by upbraiding him for his nonmembership, but this small flame of dispute was quickly doused by Technicolor. In July 31, 1954, Technicolor and the Local signed a collective- bargaining agreement containing a valid union-shop provision. All but Balthrope in Technicolor's employ and in the bargaining unit were members of the Local. Balthrope testified that he heard rumors to the effect that such an agreement had been signed but denied having then received any formal notification to that effect from his employer or the Local. At the expiration of 30 days, by letter from the Local, Technicolor was advised that Balthrope had made no application for member- ship and because of this circumstance his discharge was demanded. Technicolor protested that the International, a contemplated party to the collective-bargaining agreement, had not signed and refused to honor the demand. Immediately the same contract was reexecuted by Technicolor, by the Local, and by the International. Allen Jackson, business agent of the Local, rejected Technicolor's suggestion that a copy of the contract be posted at the employer's premises. However, a Mr. Pottle, Technicolor's personnel manager, telephoned Balthrope no later than Septem- ber 7, 1954, advising Balthrope of the union-shop clause in the executed contract. Balthrope consulted an attorney to determine a course of action, but did not approach the Local. On October 1. 1954, more than 30 days after the execution of the last contract, the Local again wrote Technicolor stating that Balthrope had made no application 'Aluminum Workers International Union, Local No. 135, AFL, 111 NLRB 411, 112 NLRB 619. TECHNICOLOR MOTION PICTURE CORPORATION 79, for membership and demanding his discharge. Balthrope quickly became aware of this demand and his attorney engaged in correspondence and other communica- tions with representatives of Technicolor in an effort, apparently, to persuade that the demand for discharge not be honored. About November 18 Balthrope visited the offices of the Local and asked the secretary-treasurer, David Arbuckle, what he might do to settle the matter. Arbuckle told him that he did not know, and expressed the opinion that it was a bad thing for a nonmember to be working in the industry. Balthrope agreed. According to Balthrope he suggested to Arbuckle that he pay the initiation fee of $250 and $150 more to reimburse the Local for any expense to which it may have been put by reason of a trial afforded Balthrope prior to his expulsion. Arbuckle denied that any mention of $150 was made. In early December Balthrope completed an application for membership and sent it with a check for $250 to the Local. On December 20 Balthrope again visited the offices of the Local and spoke with Arbuckle and Allen Jackson. According to Balthrope, Jackson suggested that the former should pay the $500 fine assessed against him in 1949. Jackson denied that any such proposal was made. On the same date Bal- thrope wrote the Local offering to pay the $500 fine in addition to the $250 initiation fee which he had already submitted. At both of these conferences in November and December, the representatives of the Local told Balthrope that the question of his readmission to the Local was one for the executive board of that organization and that none of the individual officers could promise him anything in that respect. On a date which I find followed the meeting of December 20 by a day or so, Balthrope met a member of the executive board, Rich MacColloch, at Technicolor. According to Balthrope's credited and uncontradicted testimony, MacColloch said that he had recently attended a meeting of the executive board during which Bal- thrope's application for membership was considered. MacColloch said that the board had voted against admitting him to membership and approved action to have him removed from the job. A further motion to find another job for Balthrope was tabled. MacColloch said that he had proposed that Balthrope be given an opportunity to appear before it, but that this suggestion was not acted upon. Still in the version attributed to MacColloch, Arbuckle told the executive board that Bal- thrope had hired an attorney unfriendly to the Union. MacColloch told Balthrope, "I think you are getting a bad deal in this matter. I wish you luck." On January 12, 1955, Allen Jackson wrote to Balthrope saying that the former was mistaken in his apparent belief that Jackson had suggested the payment of the $500 fine. The letter went on to say, "The only requirements which have been imposed before submission of your request for membership could take place were those stated in Secretary-Treasurer Arbuckle's letter of December 1, 1954." That letter in effect told Balthrope that his inquiries concerning membership could not be answered until accompanied by a membership application and initiation fee. Sometime in January 1955 Balthrope exhibited to Pottle the check which he had drawn to the Local, and which had been cleared through his bank, indicating the payment of $250 initiation fee. On February 10 Balthrope was called to the office of David S. Shattuck, Technicolor's treasurer, and in the presence of Pottle told that he was discharged. According to Balthrope, Shattuck said that the Local was bringing pressure on Technicolor and had threatened a strike vote if Balthrope was not discharged. Shattuck said that he could not afford to have production halted on that account. According to Balthrope, Shattuck said that in July, Allen Jackson had brought in a copy of the contract for signature and seemed much in a hurry about it. Thirty days after the signing a demand for Balthrope's discharge was received. Noting that the contract did not have the signatures of International's officers ap- pended, Shattuck notified Jackson of this fact and shortly a new contract was brought in for signatures. Jackson on this latter occasion asked Shattuck not to mention the signing of the contract to Balthrope. Shattuck said he thought it only fair that Balthrope have this information and he would see to it that it was conveyed to him. Shattuck then said on the February 10 occasion that he was writing a letter to the Union saying that "The whole affair stinks and I am thoroughly ashamed to have any part in it. I am surprised at Mr. Arbuckle's uncharitable attitude and am surprised at Mr. Jackson's misuse of power." Shattuck testified that he thought it unlikely he had written such a letter to the Local, but readily conceded that he had expressed himself in that fashion to one of the Local's representatives. On February 10 the Local wrote Balthrope stating that the executive board had voted to accept his application for membership subject to the approval of the International and that as soon as the approval was forthcoming he would be notified of the time and place of induction into membership. The Local then offered its facilities for Balthrope's use and noting the fact of his discharge by Technicolor told him of other employment in the industry for which he was eligible and qualified. By reason of 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this opportunity Balthrope was hired by Consolidated Film Laboratories on February 15 and remains employed there. He has never been notified to appear for induction into the Local and his $250 initiation fee has never been returned. Conclusions The circuit court has held in this case that Balthrope was compelled by the terms of the collective-bargaining agreement to pay his initiation fee before October 1, 1954, or risk discharge . Thus, the burden now is upon the General Counsel to establish by a preponderance of the evidence , if he can, that a proffer of initiation fee within the 30-day period would have been futile; that the Local was determined in any event that he not be permitted to continue in his employment with Technicolor. I recognize in this record the following circumstances which may be said to support the General Counsel in his view of the case . Balthrope was expelled from the Local in 1949. His later offer to pay dues in that year was refused . Although he has paid his initiation fee he has never been admitted to membership in the Local. It seems also to be true that Business Agent Allen Jackson desired that Balthrope not learn of the union -security agreement. Thus it may be inferred that Jackson hoped the time within which Balthrope could apply for membership and avoid risk of discharge would pass while he remained in ignorance of any such requirement. But all this comes up against the hard fact that the Local's bona fides were never tried. Balthrope did not make timely application for membership. He "had the choice of testing the union's sincerity by a tender or of taking the major risk of discharge ; a reasonable man could hardly fail to try the former before blithely accepting the latter alternative ." 4 It may be argued , of course, that conduct of the Local, subsequent to the demand for discharge , is such as to indicate a purpose to demand more of Balthrope before granting him membership than of other employees similarly situated . There is Balthrope's testimony that Arbuckle suggested the inadequacy of $150 to reimburse the Local for the expense of the trial which resulted in his expulsion . There is also his testimony that Jackson suggested in December the desirability of an offer to pay the $500 fine assessed against him in 1949. It is clear enough that Balthrope said he was willing to do either. Both Arbuckle and Jackson denied that any such conditions were sug- gested or imposed. Even if they had done so, even if Balthrope was denied membership after October 1, 1954, unless he would agree to make payments in addition to the established initiation fee, it is still essential that the General Counsel establish that such additional payments were sought by the Local as a price to be charged Balthrope to remain an employee of Technicolor . When the 30-day period ended without an application for membership from Balthrope , the Local's right to demand his discharge matured. The record does not establish that it thereafter offered to bargain that right away. The fact that the Local immediately upon causing Balthrope's discharge obtained other and comparable employment for him, may indicate that its sole concern here was to vindicate its contractual rights and to advertise to employees in the industry generally that it proposed to secure strict adherence to union-shop provisions wherever they existed. It is also, of course, possible to conclude that the Local felt somewhat unsure of the legality of the action it had taken and arranged to find other employment so as to avoid any possible back-pay liability. I find nothing in the conduct of the Local reflected in this record , which would adequately support a finding that an offer of initiation fee by Balthrope within the 30-day period would have been refused . I find then that the General Counsel has not established by a preponderance of the evidence that the demand for Balthrope's discharge by the Local was postulated upon any consideration other than his failure to make a timely offer to pay an initiation fee. It follows , and I find, that by demanding and causing Balthrope's discharge, the Local did not violate the Act. By acceding to the demand and by discharging Balthrope , Technicolor did not violate the Act. It may be appropriate here to comment that Balthrope has done all that can be required of him to obtain membership in the Local so as to satisfy a condition of employment . Assuming that his employer is one within the jurisdictional reach of the Board, he may not be disturbed there because of nonmembership in the Local. If he can arrange employment with Technicolor , the Local may not lawfully prevent his hire .5 * N.L.R.B . v. Local 3, Bloomingdale, etc., Department Store Union, C.I.O., 216 F. 2d 285 (C.A. 2). r, Radio Officers Union, etc. v. N.L.R.B., 347 U.S. 17, 41. SIEMONS MAILING SERVICE 81 CONCLUSIONS OF LAw 1. Technicolor Motion Picture Corporation is an employer within the meaning of Section 2(2) of the Act. 2. Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Technicolor Motion Picture Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. Technicolor Motion Picture Corporation has not engaged in unfair labor practices, within the meaning of Section 8(a) (1) and (3) of the Act. 5. Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada , AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] Siemons Mailing Service, Petitioner and San Francisco-Oakland Mailers Union No. 18, ITU, AFL-CIO; Independent Mailers' and Addressers' Union, and Bookbinders & Bindery Women, Local 32-125, I.B. of B. Cabe No. 20 RM--60. November 14, 1958 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 James S. Jenson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a California corporation engaged in the opera- tion of a mailing service in Oakland, California. In the course of its operations it processes, addresses and mails written materials sub- mitted to it by its customers for that purpose. During the year 1957 its total revenues were approximately $240,000, of which $77,000 was received in connection with services performed on materials which were mailed outside the State of California by the Employer. The Employer urges the Board to assert jurisdiction on the theory that it performed more than $50,000 worth of services on materials which were mailed outside the State of California, and therefore its direct outflow satisfies the minimum jurisdictional requirements established in the Jonesboro case.' On October 2, 1958, the, Board publicly announced 2 the adoption of new jurisdictional standards, which would be set forth in decisions rendered in cases issuing thereafter. In this case, the Board sets forth the $50,000 outflow-inflow standard for nonretail enterprises , and the 1 Jonesboro Grain Drying Cooperative, 110 NLRB 481. $ Press Release (R-576y; 122 NLRB No. 13. 505395-59-vol. 122-7