Local 776, IATSE (Film Editors)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer executed a contract,' which also covered only the waterfront guards, with Security Police and Guard Association, Independent Council No. 1, but subsequently this organization was voluntarily dis- solved by its membership. None of the employees sought by the Peti- tioner is presently represented. In view of the centralization of personnel handling, the similarity of duties, the extent of interchange, and the fact that no union seeks to represent a smaller unit, we find that the bargaining history is not controlling and that the overall unit sought by the Petitioner is appropriate .4 Accordingly, we find that all of the Employer's guard employees, including regular part-time guards, in the Puget Sound, Washington, area, including all plant protection employees and all employees per- forming ship, dock, and cargo policing on docks and ships, but exclud- ing office clerical employees, professional employees, and supervisors as defined in the Act I constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. [Text of Direction of Election omitted from publication.] 8 The Employer has moved to reopen the record to introduce further evidence to contra- dict the testimony of certain employee witnesses These witnesses had testified to the effect that this contract was forced upon the employees and that the Employer dominated Security Police and Guard Association, Independent Council No. 1. We find that the evidence sought to be introduced, as well as the testimony already adduced, is im- material to the issues in this case, as it relates only to alleged unfair labor practices. It is established Board policy not to permit the litigation of alleged unfair labor practices in a representation proceeding. Cyclone Sales, Inc., 115 NLRB 431. The Employer's motion to reopen the record is hereby denied. 4 See Paul M. O'Neill International Detective Agency, Inc., 115 NLRB 760. 5 The Employer employs one sergeant, who is assigned to the day shift at the Todd Shipyards Corporation Repair Yard. In addition to performing routine guard duties and acting as liaison between Todd and the Employer, the sergeant examines the log sheets to determine whether they have been properly filled out He also makes sure that the discs in the clocks have been changed every 24 hours, as required He reports to the Employer's office any errors of rounds or omissions of work, and calls rules to the atten- tion of any guard employee who violates them. He does not assign work to the guards under him and he has no authority to hire, discharge, or effectively recommend such action. Any recommendations he may make are independently investigated and acted upon by the Employer. Under these circumstances, we find that the sergeant is not a supervisor ; accordingly, we include him in the unit. Local 776, IATSE (Film Editors ) and Henry A. Carlson and Cascade Pictures of California , Inc., Party to the Contract. Case No. 21-CB-1199. September 4, 1959 DECISION AND ORDER On May 12, 1959, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and 124 NLRB No. 105. LOCAL 77 6, IATSE ( FILM EDITORS) 843 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' Ex- cept as noted herein, the rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts, as modified herein, the findings,' conclusions and recommendations of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10(c) .of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 776, IATSE (Film Editors), its officers, representatives, agents, succes- sors, and assigns, shall: 1. 'Cease and desist from : (a) Causing or attempting to cause Cascade Pictures of California, Inc., or any other employer, to discharge, terminate, or in any other 1 The Respondent's request for oral argument is hereby denied as the record , exceptions, and brief adequately present the positions of the parties. 2 The Respondent has excepted to the Trial Examiner's failure to strike the testimony of Carlson relating to conversations during 1956 with an office employee of the Respondent. We agree with the Trial Examiner, and for the reasons given in his Intermediate Report, that this testimony was properly admitted as background evidence . The Respondent has also excepted to the Trial Examiner's failure to strike testimony relating to conversations between Carlson and two company representatives , Loftus and Selson. The testimony was objected to on the ground that it was hearsay and thus inadmissible . We find no merit in this objection . The testimony was admitted , and relied upon by the Trial Examiner, not as evidence of the Respondent 's efforts to cause Carlson's discharge, but for the limited purpose of establishing the Company 's motive and reason for discharging Carlson. For that purpose , the testimony was clearly competent and material. Local 1418, General Longshore Workers, International Longshoremen's Association, AFL (Lykes Brothers Steamship Co., Inc. ), 102 NLRB 720, 731, enfd. 212 F. 2d 846 ( C.A. 5). Over the Respondent's objection, the Trial Examiner admitted into evidence an excerpt from Loftus' prehearing statement, which excerpt conflicted with Loftus' oral testimony. The Respondent has excepted to the Trial Examiner's failure to strike that excerpt . Although .this excerpt was properly admissible for impeachment purposes , the record clearly shows that it was offered and admitted as substantive evidence. While the Intermediate Report is not clear as to what extent the Trial Examiner relied upon that excerpt, we agree with the Respondent's basic contention that this prior inconsistent statement may not be -used as substantive evidence. Accordingly, we do not rely upon it in passing upon the Issue of whether the Respondent caused the Company to discharge Carlson , which, in agreement with the Trial Examiner , we find to have been the case. N.L.R.B. v. Quest- •Shon Mark Brassiere Co., Inc., 185 F. 2d 285 (-C.A. 2), cert denied , 342 U.S. 812. 81n view of the fact that the Respondent does not plead the contract with the Com- pany as a defense to its conduct , we find it unnecessary to pass upon or adopt the Trial Examiner's construction of the provisions of that contract relating to the giving of notice thereunder, and his findings that the Respondent had not complied therewith . Also, we correct a minor inaccuracy which does not affect the validity of the Trial Examiner's findings, conclusions , and recommendations : In detailing the events leading up to Carlson's discharge, the Trial Examiner found that Loftus called Carlson to his office, whereas the record shows that Loftus in fact called Carlson on the telephone. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner discriminate against employees in regard to hire or tenure of employment, or any term or condition thereof, except as authorized by Section 8 (a) (3) of the Act. (b) Restraining or coercing employees or prospective employees. of Cascade Pictures of California, Inc., its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any and all of the concerted activities listed in Section 7 of the Act,. except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Company in writing, and furnish a copy to Henry A. Carlson, that the Union has no objection to the employment of Carlson as an apprentice film editor at the laboratory of the Company without regard to his membership or nonmembership in the Union,, or any other labor organization , and with prejudice to his seniority,. or other rights and privileges ; said notification shall contain a request that the Company offer Henry A. Carlson employment as an appren- tice film editor, as set forth in the section of the Intermediate Report entitled "The Remedy." . (b) Make whole Henry A. Carlson for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post in conspicuous places at the business office of the Union copies of the notice attached marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that the notices are not altered , defaced, or covered by any other material. (d) Furnish to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto marked "Appendix A" for posting by Cascade Pictures of California , Inc., it being willing, at places where it customarily posts notices to its employees. (e) Notify the Regional Director for the Twenty-first Region in writing, within 10 days from the date of this Order, what steps the Union has taken to comply herewith. * In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." LOCAL 7 7 6, IATSE ( FILM EDITORS) 845 APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 776, IATSE (FILM EDITORS), AND TO ALL EMPLOYEES OF CASCADE PICTURES OF CALIFORNIA, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and the employees of Cascade Pictures of California, Inc., that : WE WILL NOT cause or attempt to cause Cascade Pictures of California, Inc., or any other employer, to discriminate against employees in regard to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a) (3) of the Act, as amended. WE WILL NOT in any manner restrain or coerce employees of any employer in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL notify Cascade Pictures of California, Inc. and Henry A. Carlson that we withdraw our objections to the employment of Henry A. Carlson by that Company. WE WILL make Henry A. Carlson whole for any loss of pay suffered because of our discrimination against him. LOCAL 776, IATSE (FILM EDITORS), Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding , with all parties represented, was heard before a duly designated Trial Examiner in Los Angeles , California, on March 16, 17, 1959, on complaint of the General Counsel and answer of Local 776, IATSE (Film Editors), herein called Local 776 or the Union. The issues litigated were whether the Union violated Sec- tion 8 (b) (1) (A) and (2) of the Act. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Cascade Pictures of California , Inc., herein called Cascade or the Company, is a California corporation with its principal office and place of business located in Los Angeles, California . The Company is engaged in the production and distribution of commercial television films. In the course and conduct of its business the Company annually ships films valued in excess of $50,000 directly to points in States other than 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California, from its place of business. I find that the Company is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the assertion. of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1. The issue The primary issue to be resolved is whether the Union "attempted to cause and. caused the Company to discharge" Henry A. Carlson, one of its employees, for: reasons other than his failure to tender dues and initiation fees uniformly required, as a condition of acquiring or retaining membership in the Union, and because he. was not a member of the Union. As will appear from the testimony hereafter re- lated, the evidence establishes beyond any doubt that Carlson was discharged by the: Company because of his nonmembership in the Union, in violation of Section 8(a) (1) and (3) of the Act. However, the Union, as a defense, dissociates itself from this conduct of the Company, and claims that it neither directly nor indirectly "at- tempted to cause or caused the Company" to discharge Carlson. The ultimate con- tention of the Union is that the General Counsel has failed to prove by a preponder- ance of the evidence this essential allegation of the complaint. 2. The contractual arrangements between the Union and the Company As part of its defense, the Union introduced into evidence two contracts. The first contract is entitled "Agreement of October 26, 1955 between Independent Producer and IATSE and MPMO and Local No. 776 Thereof." The Union claims that this. contract is basic to a second contract entitled, "Standard Basic Agreement, Inde- pendent Motion Picture Industry Employer and IATSE and MPMO." This second. contract was executed on May 17, 1956, by representatives of the Company and the, Union.' Each of these contracts contains provisions for union security, in almost identical terms. The union-security provisions of the Standard Basic Agreement are entitled- "Shop Agreement." The article reads as follows: (a) Employer agrees that each and every employee, hired by the Employer- to perform services in the County of Los Angeles or hired by the Employer in. the County of Los Angeles to perform services outside said county in the crafts and classifications of work referred to or described in articles III and IV hereof, shall be and remain a member in good standing of the International Alliance and its appropriate West Coast Studio Local on and after the thirtieth day following, the beginning of his first employment as hereinafter defined or the effective date of such respective agreements between the Employer and affected unions, which- ever is the later. The foregoing requirements of union membership as a condi-. tion of employment shall be subject to the obligations of the parties under the law. (b) Within a reasonable time but not to exceed three (3) days after receipt. of written notice from the International Alliance and/or its appropriate local union that any such then employed employee is not a member, as above re- quired, and that such employee has been so notified in writing prior to such notice to Employer, the Employer shall discharge any such employee who fails to remedy such default within said three days after Employer receives such notice. The Employer shall not be in default unless he fails to act, if necessary, within said time after receipt of such notice. (c) Employer agrees to inform the respective West Coast Studio Locals, in writing, within seven (7) days (Sundays and holidays excluded) from the date of employment hereafter of any employee subject to this agreement, of such employee's name, residence address, social security number and his date of - employment. (e) "First employment" as referred to in subdivision (a) of this article shall. (until determined otherwise by the General Counsel of the National Labor Rela- - 1 These documents are Respondent's Exhibits Nos. 2 and 1 , respectively. LOCAL 776, IATSE (FILM EDITORS) 847 tions Board, the Board or a court of competent jurisdiction) mean the first such employment in the respective crafts or classifications of work over which the above referred to International Alliance and respective locals have jurisdiction in the motion picture industry on or after the execution of this agreement. [Emphasis supplied. I As will be noted hereafter, the above provisions of the contract are important to,an understanding of the case as submitted, but the Union makes no claim that the procedure for terminating a nonmember employee was in any way invoked by it in this case. 3. The verbal testimony The testimony is relatively brief, but it contains conflicts between witnesses, and, to a minor extent, some conflicts between differing versions of testimony of the same witness. For that reason, the examination of some witnesses is given more extended treatment than is accorded to others. The witnesses are four in number, and to some extent each of the four is interested in the outcome of this proceeding because each of the four was a principal in the events which gave birth to the controversy. These witnesses are Henry A. Carlson, the Charging Party and the employee discharged by the Company; Bernard Loftus, film editor, and supervisor of the Company's editorial department, who ordered Carlson's discharge; Lester Selson, foreman under Loftus in the editorial department, who was Carlson' s imme- diate supervisor; and William V. Todd, assistant business representative of the Union, who participated in some events prior to the discharge of Carlson. a. First employment of Carlson; his contact with the Union Henry A. Carlson testified that early in May 1956 he went to the office of the Union and spoke to Mildred Kennedy, who according to a stipulation of counsel, was employed by the Union as a utility office worker and assistant to the book- keeper. Carlson asked Mrs. Kennedy how he could become a member of the Union. She gave him some forms to fill out and told him that if he filled them out and filed them, that anytime thereafter that he obtained employment, the Union would process him into membership. Carlson filled out these forms and mailed them to the Union. In the month of September 1957 Carlson obtained employment from the Company. He was hired by Stewart Frye, acting head of the editorial department in the absence of Loftus, for a job breaking down TV commercials into separate units and shipping them. Approximately 3 weeks -after he started work for the Company, Carlson returned to the union office and again saw Mrs. Kennedy. He told her that he was working and, since she had told him on the prior occasion that when he was working he could be processed into the Union as a member, that he would like to take the Union up on that offer, become a member, and pay his initiation fee. Mrs. Kennedy replied that the motion picture business was insecure at its best; that the Union did not strictly enforce the 30-day limit, and therefore Carlson should just "sit tight," and wait until the Union called him, when it had decided it was time to process him into membership. Carlson's employment with the Company on this occasion was uneventful but lasted only 5 to 6 weeks. During his employment he worked under Selson, and was terminated for lack of work. b. Carlson's employment in 1958; his discharge 2 Around the first of April, Selson phoned Carlson and asked him if he was available to do some film work. He replied that he was, so Selson instructed him to report for work. Carlson's employment was without incident from approximately April 1 until a date in mid-May. On an unspecified date in the middle of May, Bernard Loftus, the film editor of Cascade, who had charge of all supervisors and employees engaged in film work, called Carlson to his office. Loftus told Carlson that he was very sorry, that he had the Union on his back, and he was forced to let Carlson go by the end of the week. Carlson immediately reported this conversation to Selson, his immediate super- visor. Selson said that he was sorry, that he considered Carlson a valuable man. Then Selson said that he was going to try to do something about it, by seeing whether the Union wouldn't agree to some sort of an understanding and allow Carlson to 2 All dates in this section of the report are in the year 1958. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stay on at the Company. Selson then telephoned the Union. Carlson could hear only that part of the conversation spoken by Selson. Carlson heard Selson say that he had been informed that Carlson was going to be laid off, and since Selson felt that he was a valuable man, he was wondering whether the Union couldn't make some agreement so that Carlson could stay on. Carlson could not hear what was said at the other end of the line, but when Selson finished he told Carlson that he had spoken to Mr. Todd at the union office, and that Mr. Todd said he would come to the film department to investigate the matter. Two or three days later, Todd came to the laboratory where Carlson and Selson were working. When Carlson noticed Todd in Selson's office he joined them. Also present at that time was another employee named Dec Sonner. When Carlson entered Selson's office the conversation between Selson and Todd was in progress. When Carlson entered, Selson asked Todd if he knew Carlson. Todd answered that he did. At that point Carlson testified as follows: Mr. Selson was making a statement that there was some question as to the jurisdiction of Local 776 over my job because of Local - because Local 776 is concerned with film editing, which is assembling of film, while the work I was doing was breaking down. * I do not recall what Mr. Todd answered to that point, but Mr. Selson's next point was that, since I speak several foreign languages and since Cascade occasionally does business with customers in Europe, he felt that I would be especially useful, which other Local 776 members might not be in that respect. Mr. Todd replied that the knowledge of foreign languages is not a require- ment for a film editor and that the only thing his local was interested in was whether I handle film or not, and as long as I do handle film, he feels that Local 776 has jurisdiction on that point. And then Mr. Selson also brought up that if I was to be laid off Cascade would have to hire somebody else and have to train him from scratch all over again, so Mr. Todd replied that when I was first hired I had to be trained from scratch, anyway, so if anybody was to blame for the inconvenience, it was Cascade because they should never have hired me in the first place because at the time I was hired the Union had members out of work. [Emphasis supplied.] Todd then explained that in this matter he did not have final authority, but would have to check with his superiors, that he would do so, and let Carlson know their decision in a few days. A few days later, Todd called Carlson at the Company's office and said that he had arranged an appointment for Carlson with Lehners, the business representative of the Union, at the union office. At the appointed time Carlson went to the union office. As to what transpired there, Carlson testified as follows: A. Well, when I arrived there, it appeared that Mr. Lehners was not in and I instead was to talk to Mr. Todd again, which I did. I was taken to Mr. Todd's office. Mr. Todd told me that he had checked with his superiors and they had come to the conclusion that there was indeed a violation of the contracts which Local 776 has with Cascade and that, in view of those circumstances, the Union would be entitled to fine Cascade for an amount I believe, equal to the money I made while I worked at Cascade, but that the cause of, I think, the usual conditions, as he called it, but they would not do that. He said for those reasons it would be necessary or better to discontinue my employment at Cascade. After that, he brought up that while the Union had no legal obligation to do anything for me, he felt it was sort of a moral obligation to do something to make up for the job I had lost. And he was going to see to it that I would get a summer job at ABC, and for that reason he was going to pull my application out of the file and keep it right on his desk so that at all hours he would be reminded of it. Q. Was that the extent of the conversation? A. Yes, sir. Q. What did you do after the conversation? A. Well, I told Mr. Todd too that I was sorry it had to be this way but I was in no position to argue about it. When Carlson returned to work, he told Selson of the decision. Shortly thereafter another man, Peter de Turczynowicz, was hired by the Company and for a few LOCAL 776 , IATSE ( FILM EDITORS) 849 days Carlson and De Turczynowicz worked side by side. On May 23, 1958, Selson told Carlson that he was discharged as of May 30, 1958. In the course of his recross-examination, Carlson said that the union forms which he filled out and filed with the Union were entitled "Qualification Questionnaire" and the questions concerned his past experience in the industry . As far as he knew, he had never filed an application for membership; nor had he ever tendered the payment of any initiation fees or dues. In this connection, it should be noted that there is no evidence herein that the Union ever asked Carlson for either dues or initiation fee. Testimony of Selson The General Counsel also called Lester Selson as a witness. He testified that he had been employed by the Company for approximately 3 years and had been a mem- ber of the Union for the same length of time . Carlson had worked in his depart- ment on two occasions , in 1957 and in 1958. Selson testified that sometime in May Carlson came to him and told him that since he was not in good standing with the Union , he was going to be replaced; that he had received that information from Mr. Loftus . Selson discussed the subject with Carlson , who was of the opinion that his application was on file with the Union, and that he had worked long enough to be eligible for membership . Selson and Carlson then decided that they would inquire if Carlson would be taken into mem- bership by the Union. Selson telephoned the union office and spoke with the girl who answered his call. Upon his inquiry the girl said that Mr. Todd would investi- gate the matter . A day or two later Todd phoned him and made an appointment, and came to the laboratory. In the conversation that followed , Selson said that he was concerned about Carlson because the latter was an excellent employee, while Todd seemed concerned with the duties and requirements of Carlson 's job and its proper classification. After conferring for about 15 minutes, Todd said that the decision as to whether the job came under the classification of the Union or not would have to be made by his superiors, and that he would notify Selson later as to their decision. Testimony of Loftus Bernard Loftus, the film editor mentioned previously, was also called by the General Counsel as a witness. While Loftus is of the hierarchy of management, he is also a member of the Union. Loftus said that he called Carlson to work for Cascade Pictures during the month of April 1958 for a job as apprentice film editor. Later, "it was found that his job came under the jurisdiction of Editor's Union, and I let him go." A little later in his testimony, Loftus described Carlson's termination as follows: The WITNESS: Let's see, how do the mechanics work out? I will have to put this in. I failed to call the Union to find out whether Carlson was a member of the Union or whether he wasn't. I assumed he was a Union member. So it later came out that his work did come under the jurisdiction of the Film Editors. So Todd came over and informed me that that was the case, and that is about the essence of what was said. By Mr. HOGG: Q. Did you do anything as a result of this conversation? A. I let Carlson go. In further testimony, Loftus said that he found out that Carlson was not a mem- ber of the Union in a conversation with one of the employees, Stewart Frye. After Loftus learned that fact, he called Todd and his question to Todd was, "In your opinion, does this come under the jurisdiction of our local , or something similar to that?" Subsequently, Todd investigated and informed Loftus that the job did come under the jurisdiction of the Union. In reply to a question of the Trial Examiner , Loftus said that in hiring people for the editorial department the Company hired exclusively members of the Union. In further explanation of this procedure, Loftus said that the Company was a signa- tory of the basic agreement with the Unions , and all of the Company's employees were union members, the camera crews, the grips, and carpenters , et cetera. A little further on in his examination, Loftus said that when he learned that Carl- son was not a member of the Union , he checked with the controller of the Company 525543-60--vol. 124-55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to what the Company's procedure should be, and it was the advice of the controller that he should let the man go. On cross-examination, Loftus was asked if Todd at any time, either in a personal conversation or in any telephone conversation, had requested him to discharge Carl- son. Loftus answered, "I don't believe so, no." He further testified that nothing was said by Todd about what should be done to Carlson, and that no one else con- nected with the Union had requested that Loftus discharge Carlson. Loftus also testified that his usual procedure in labor matters is to consult with the controller of the Company before taking action, since the controller seemed to be more familiar with those matters. Loftus also said that his memory was hazy on the point but he was quite sure he did not tell Carlson that he had the "Union on his back" and was therefore discharging him, but that he could very well have told Carlson that "because he was not a member of the Union, that I would have to let him go." When examined further, Loftus said, "We are a small company. We do nothing but produce television commercials. Those commercials we work through various advertising agencies. They are the persons that give us this kind of work. Those agencies are all tied up with various contracts, S.A.G. contracts, and we have to be careful in our hiring of people. All of our people, as I told you once before, are Union people or members of some guild, Screen Directors Guild, whatever it may be. And that is the only reason I let Henry Carlson go." Loftus was then taken over by the General Counsel for redirect examination. He was asked if Mr. Todd :had not, in a personal conversation between Todd and Loftus, said, "that, because of contractual commitments, you would have to let Carlson go, or words to that effect?" Loftus answered that he did not think Todd said anything about that; that Loftus asked Todd a. question, and Todd answered it. Thereupon, the General Counsel claimed surprise and produced a signed statement of the witness given to Carl Abrams, field examiner of the Board, on October 2, 1958,3 and asked the witness to examine it. The witness read the statement, identified it, and acknowledged his signature on the document. He was then asked if the statement refreshed his recollection as to what Mr. Todd told him in regard to Carlson during the personal conversation in the month of May. The witness answered in the negative. When the witness was asked if he had sworn to the statement, he replied that he had not sworn to it, that he had merely signed his name to it. The General Counsel then offered in evidence the statement of the witness, and the witness was taken on voir dire by counsel for the Union. This examination disclosed that the statement was in the handwriting of the Board agent; that the statement was written in the presence of the witness and signed by him, at a conference in the office of the controller of the Company. The witness also said that he read the document in its entirety before he signed it. The General Counsel then directed the attention of the witness to a passage in the statement which reads as follows, "I was contacted by Mr. Todd of Local 776 and advised that because of contractual commitments between the Employer and the various unions I was required to let Carlson go." The witness was then asked by the Trial Examiner if at the time the statement was taken he had told the Board agent who took the statement that in substance. The witness then replied, "Un- doubtedly I did. It's here and there is no question about it." The witness finally testified that his present recollection was that Todd did not say what the witness attributed to Todd in the statement, and then later he testified that he was not sure whether Todd said what was attributed to Todd in the statement. The General Counsel then offered the document in evidence and it was received over objection of counsel for the Union. Counsel for the Union then examined the witness. Loftus was asked if the phrase used in the statement "contractual commitments" was his phrase or Mr. Abrams' phrase. The witness replied that it was his. Testimony of Todd The only witness called by the Union was William B. Todd, the assistant business manager of the Union. Todd testified that he first spoke to Carlson about 8 or 9 months prior to the hearing, when Carlson came to the office of the Union to inquire about employment. Todd said that the fact that Carlson was employed at the Company first came to his attention when the Union was served with the charge in this case, about September 30, 1958. The witness then corrected himself and stated that he had heard earlier in 1958 that Carlson had been employed at one time at Cascade. The witness stated that he was unaware of Carlson's employment by the Company in the year 1957. a General Counsel's Exhibit No. 3 in evidence. LOCAL 7 7 6, IATSE (FILM EDITORS) 851 Later Todd said that be first learned that Carlson had been terminated by the Company when the charge in this case was received by the Union in September 1958. Todd testified that he had two discussions with Loftus and one with Selson about the job which Carlson held at the Company. The first conversation that Todd had with Loftus was by telephone, about the middle of May 1958. Loftus called to inquire as to whether or not a specific job as helper in the distribution room at Pathe Laboratories of the Company was within the jurisdiction of the Union. Todd told him that he could not make a determination immediately, but he would investi- gate the matter and let Loftus know his decision. Todd testified that in this con- versation Carlson's name was not mentioned. A day or two after that, pursuant to instruction by his superior, Mr. Lehners, Todd went to Selson's office at the labora- tory to investigate the facts of the job for the purposes of analysis, Todd denied that he ever talked to Selson over the phone about the job. When Todd arrived at Selson's office, another employee, Dec Sonner, was also present. Carlson was not present until Todd was about ready to leave. On this occasion Todd told Selson that he was there for the purpose of inquiring as to the actual details of the job. He asked what the man did in regard to handling film. At the end of this conversa- tion Selson asked Todd what his opinion of the job was, and Todd told him that he did not make such decisions, that he would take the information back to his superiors, and the decision would be made by them. Todd did not recall any discussion with Carlson on this occasion. In the course of his examination, Todd denied that the question of foreign languages came up in this conversation, and he also denied that any discussion occurred about the Company having to train a new man if Carlson was discharged, and denied that he said that the Company shouldn't have hired Carlson in the first place, when union members were out of work. Todd said that the second telephone conversation with Loftus occupied about 1 minute. Todd told Loftus that the job which had been in question was deemed to be within the jurisdiction of the Union, and Loftus said that he would talk to Todd later about going over the list of union members available and finding some- one to fill the job. Loftus said that he would call Todd when he was ready. Todd said that during this conversation Carlson's name was not mentioned. Todd also denied that he made any appointment for Carlson with Mr. Lehners of the Union. On that point he testified that he saw Carlson at the union office about the middle of June when Carlson dropped into the office on the subject of possible employment. They did not discuss the termination of Carlson at the Company and at that time he was not aware of the fact that Carlson had been terminated. Todd testified that to the best of his recollection the only thing discussed on this visit of Carlson to the union office was the employment situation in the industry. Todd also denied that there was any mention of Carlson's obtaining a job at the ABC, or any discussion of a union application for membership for Carlson. Todd said that to the best of his knowledge Carlson had never executed an application for membership with Local 776, although Carlson had filled out a "qualification questionnaire." Todd stated that he never told Carlson that he would keep his qualification questionnaire on his desk, and he testified that he had never discussed with Carlson the subject about how Carlson would be processed into membership in the Union. Todd said that his office sent Peter de Turczynowicz, a member of the Union, to the job at the Company. Motions To Strike Testimony In the course of the hearing counsel for the parties were zealous and vigorous in pressing for the admission or rejection of certain items of testimony. On some points, where he deemed it proper, the Trial Examiner stated that he would entertain a motion to strike certain testimony in the event that the development of the case demonstrated the admission of the testimony to be improper. At the close of the evidence, counsel for the Union made three motions to strike certain testimony, which await disposition in this report. The first motion to strike is directed to the testimony of Carlson in which he relates his conversations with Mrs. Kennedy, an office employee of the Union, in May 1956. Counsel attacks this testimony on the grounds of remoteness, and for lack of competency, materiality, or relevancy. The testimony was admitted on the basis of the General Counsel's contention that the evidence was proper as back- ground evidence, which would shed light on the more proximate conduct of the parties. In the light of all the evidence, and after a consideration of counsel for the Union's arguments, I can discern no proper grounds for striking the testimony. This motion is denied. The second motion is directed to alleged hearsay testimony relating to conver- sations between Carlson and Selson and Carlson and Loftus, taking place outside 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's presence and without the Union's knowledge. I can find no merit in the contention. One of the essential elements of this cause of action is that Carlson was discharged by the Company in violation of Section 8(a)(3) of the Act. The alleged hearsay is all direct evidence addressed to establishing that point. The violation of Section 8(a)(3) by the Company is basic to the further allegation, so vigorously opposed by counsel, that the Union attempted to cause and caused this discharge. Of course, the Union is not, and cannot be held responsible for the con- duct of the Company's officers, if they acted independently of the Union. However, the evidence relating to the conduct of company officers is competent, relevant, and essential Ito the General Counsel's cause of action. This motion is denied. The third motion of counsel is directed to the receipt in evidence of the excerpt of the prehearing statement of Bernard Loftus, on the grounds it is incompetent and inadmissible. The admission of this piece of evidence was very fully argued by counsel, and very carefully considered by the Trial Examiner at the time the question arose in the hearing. The question arose just prior to a luncheon recess. When the hearing reconvened, counsel for the General Counsel presented certain authorities to the Trial Examiner and the ruling was based on those authorities .4 The Trial Examiner has also examined the authorities submitted by both counsel in their briefs, and is of the opinion that his ruling at the hearing is correct. There- fore, this motion is denied .5 Concluding Findings Upon a consideration of all the testimony, I am satisfied that Carlson furnished a truthful and accurate account of the events constituting this controversy. The Trial Examiner was favorably impressed with Carlson's demeanor, bearing, and candor as a witness, and a review of all the testimony has confirmed that impression. I credit his testimony fully. On the other hand, much of Todd's testimony was implausible and incredible. He testified that he knew Carlson only as a man who had come into the union office asking about employment on a couple of occasions. The tenor of his testimony was that he was investigating the content of the particular job at Cascade, without refer- ence to the individual who occupied that job, Carlson. Todd would have us believe that his investigation of the job at Cascade was an academic question, unrelated to the employment of Carlson, personally. In fact, Todd testified that he did not know that Carlson was discharged from the Company until the Union received the charge in this case on approximately September 30, 1958. Yet, according to his own testi- mony, Todd saw Carlson on the job when he went to the laboratory to talk to Selson, and Todd supplied De Turczynowicz to Cascade for the job Todd investi- gated. That testimony of Todd I find extremely implausible. I find it hard to believe that Todd, an experienced assistant business agent of the Union, made no inquiry, and knew nothing about the identity of the man who occupied the position which he ostensibly was investigating. On some points Todd corroborated Carlson. He said he had seen Carlson at the union office on an occasion prior to the time this incident arose, and that be had a conversation with Carlson after Carlson's discharge, although neither man mentioned Carlson's discharge on this occasion. Under all the circum- stances portrayed in this testimony, I am satisfied that Todd knew Carlson as a nonunion worker in the industry before the incident at Cascade arose, and knew that Carlson was the occupant of the position he was investigating. Selson's testimony was marked by an indefinable vagueness, consisting of im- pressions and conclusions that seemed characteristic of his manner of speech. This vagueness limited the purport of his testimony. Loftus was a much more articulate witness, but he appeared to be troubled by conflicting purposes, to fulfill his duty as a witness, and to protect the Union of which he was a member. As a result, he furnished contrary testimony as to the same event, and on occasion pleaded lack of recollection. As to much of his testimony, I deem Loftus to be far less than candid. However, despite some differences in their testimony as to what was said and done on certain occasions, all the witnesses are in agreement as to the sequence of events, the succession of conferences, which led up to the discharge of Carlson. 4 Ebasco Services, 107 NLRB 617: County Electric Co., Inc., et at., 116 NLRB 1080; Multi-Color Company, 122 NLRB 429. s On this point see U.S. v. Hickory, 151 U.S. 303, 14 S. Ct. 334: Di Carlo v. U.S., 6 F. 2d 364; Stewart v. B. d 0. RR. Co., 137 F. 2d 527; Zivtberg v. U.S. 142 F. 2d 132 ; Grove Shepherd Wilson 4 Kruge, Inc., 109 NLRB 209, at page 213. LOCAL 776, IATSE (FILM EDITORS) 853 It is undisputed in the present proceeding that the Company discharged Carlson because he was not a member of the Union. Carlson testified that in firing him, Loftus said that he had the Union on his back, and had to let Carlson go. Even accepting Loftus' version of the discharge, the discriminatory nature of the termi- nation is patent. Loftus said that Carlson was hired without prior ascertainment that Carlson was a member of the Union. When it came to his attention that he had a nonunion employee in his department, he called the Union and asked if the job was within the jurisdiction of the Union. When he received word that, it was, he ordered the discharge of Carlson, and arranged for the Union to send De Turczynowicz, a union member, to the job. Therefore, it is clear, and I find, that the Company discharged Carlson because he was not a member of the Union, in violation of Section 8(a)(3) of the Act. With this background, we may approach the main question here involved. It is the contention of the General Counsel that the Union attempted to cause and caused the discharge of Carlson. It is the position of the Union that the Union did not request, or in any other way attempt to cause the discharge of Carlson. And, as pointed out by counsel for the Union in his brief, this is the essential element of the complaint which is at issue, and which must be proven by the General Counsel by a preponderance of the evidence. According to Carlson's testimony, he attempted to become a member of the Union in 1956, and filled out a certain document which is termed a "Qualification Ques- tionnaire." The girl in charge of the office at that time told him that when he ob- tained employment he would be processed into the Union. When he obtained a job he went back and informed the same young lady of that fact. She advised him to sit tight, that the Union did not enforce the 30-day limitation on employment, and that the Union would process him into membership when it considered it proper. Carlson's employment at the Company was interrupted but he came back to work in 1958. At that point his nonmembership in the Union became known to Loftus who immediately showed concern over that omission. Loftus immediately notified the Union. At this point, we must pause for a broader view of the proceeding. It is the con- tention of the Union that it had no part, or hand, in what followed; that in effect it was a stranger to the Company's later action, but became involved through accident in something which was no concern of the Union. That contention is not factually accurate. The Union was the collective-bargaining representative of the employees in the Company's film room, and a contract between the Company and the Union spelled out the contractual duties of the parties, in specific detail. By virtue of the contract between the Company and the Union, which on its face complies with the Act, the Company could hire whom it pleased, but it was required to notify the Union within 7 days of hiring, of the name of the new employee. As required by the Act, the contract afforded the employee 30 days in which to join the Union. In the event the employee did not join, after the thirtieth day, upon request of the Union, he had to be discharged. But the contract between this Company and this Union spelled out the manner in which the discharge was to be effected. It provided for: (1) notification to the Company, and the employee, that the employee had not com- plied with the contract and joined the Union; and (2) further notification that if the employee did not join within 3 days thereafter, the Union would then request his discharge. With the contract in mind, we may return to the testimony. As I view the evi- dence, when Loftus notified the Union that the Company had a nonunion employee on its payroll, he was not gratuitously turning to a stranger for advice on a company problem, he was turning to the collective-bargaining representative of the Company's film room employees, for the purpose of giving them a belated or tardy notice that a nonunion employee had been hired. At that point, the Company had complied with the first step of the contract's provision for an orderly and lawful termination of Carlson, and the ,initiative in the situation passed into the hands of the Union. At that point the Union had a choice of alternatives, (1) to proceed according to its contract in the termination of Carlson, a procedure which would afford Carlson a 3- day period to become a member of the Union, or (2) to proceed outside the terms of the contract, in such a way that Carlson would be discharged, and his job taken by a member of the Union. Carlson's testimony provides the answer as to which course the Union took. It sent Todd to investigate, and when Selson said that the Company would suffer inconvenience if Carlson was discharged, Todd bluntly told Selson that the Company had brought the inconvenience on itself, by hiring Carlson when union men were out of work. When Todd completed his investigation, he told Loftus that it had been determined that the job was under the jurisdiction of the Union, and supplied De Turczynowicz to take Carlson's place. When the latter was. 854 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD familiar with Carlson's duties, Carlson was discharged. From the moment the Union first learned of Carlson's employment, until he was discharged, the prime mover in all events was the Union. From the conduct of the parties, it is clear that implicit in the Union's announced decision that Carlson's job was within its jurisdiction was a demand for the discharge of Carlson; and it is equally clear that the Company sur- rendered the decision as to Carlson's continued employment to the Union, and that when it received the Union's decision, it complied with the Union's implicit demand and discharged Carlson, in a manner unauthorized by the contract, and in violation of the Act. On the basis of the credible evidence, I find that the General Counsel has proven by a preponderance of the evidence that the Union caused the discharge of Carlson, in violation of Section 8(b)(1)(A) and (2) of the Act, as alleged in the complaint.6 Consequently, the motion of the Union for the dismissal of the complaint on the grounds of insufficient evidence is denied. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and Section 8(b) (2) of the Act, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that in violating Section 8(b)(1)(A) and (2) of the Act, the Union has deprived Henry A. Carlson of employment by Cascade Pictures of California, Inc., it will be recommended that (1) the Union notify the above-named Company in writing, and furnish a copy of said notification to Carlson, that it has withdrawn its objections to the employment of Carlson as an apprentice film editor by the Com- pany at its laboratory in Los Angeles, California, and request the Company to rein- state Carlson to the position he formerly held at that laboratory. This notification will also state that if the job, formerly held by Carlson, is now held by De Turczyno- wicz, or other member of the Union, the Union will have no objection to the layoff of De Turczynowicz or such union member, if such action is necessary in order to effect the reinstatement of Carlson in his former position. It will be further recommended that the Union make Carlson whole for any loss of pay he may have suffered by reason of the Union causing the termination of his employment by the Company on May 29, 1958, to the date of the Union's notifica- tion to the Company and to Carlson, as set forth above. Such loss of pay shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. Upon the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Cascade Pictures of California, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, Local 776, IATSE (Film Editors), is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By causing Cascade Pictures of California, Inc., an employer, to discriminate against an employee in violation of Section 8(a)(3) of the amended Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] O The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17.