Local 771, Int'l Alliance of Theatrical, Etc.

Local 771, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of, the United States and Canada and Alfred Kelly and Kenco Films, Inc. Case No. 2-CB-2985. April 5, 1961 DECISION AND ORDER On January 9, 1961, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the .Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report ,attached hereto. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter the General Counsel filed exceptions to the Intermediate Report and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of .the Trial Examiner, with the following additions: We find no merit in the General Counsel's exceptions to the Trial Examiner's failure to find that the Respondent Union violated Sec- tion 8(b) (2) and (1) (A) by allegedly causing the Company to dis- charge employee Kelly. The record shows that on or about September 2, 1960, the Com- pany's president, Cofod, called the Respondent Union's office in connection with the employment of Kelly. In the absence of the busi- ness agent, he talked to the latter's secretary, Lois Hilton. Miss Hil- ton told him that Kelly was not a member in good standing with the Union and that "there may be problems having him reinstated if the Company should employ him." Miss Hilton did not tell him not to hire Kelly, or to discharge him, nor did she threaten a strike or any i In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find- ings that the Respondent violated Section 8 (b) (2) and 8(b) (1) (A) of the Act by main- taining a discriminatory provision in its contract with the Company respecting severance pay or notice on the basis of union membership during the first 30 days of an employee's employment. 131 NLRB No. 1. 1 599198-62-vol. 131-2 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other trouble or difficulties in connection with Kelly's employment. Cofod, however, got "the impression that the name Kelly was a prob- lem in the Local" and "the reaction from whatever she said that I shouldn't hire him." Soon after this telephone conversation, Cofod told Kelly that he couldn't hire him for the job of assistant editor, and instead offered him a supervisory job in another department, out- side of the Respondent's jurisdiction. On these facts, we agree with the Trial Examiner that there is no preponderance of evidence in the record for finding that the Respond- ent caused the Company to discharge Kelly from the assistant editor position. There was no threat, no compulsion, and no request for Kelly's discharge. All that can be established is the expression of misgivings on the part of a union employee as to the lack of good standing and the possibility of reinstatement of Kelly in the Union, and the resulting impression or reaction of the Company's president that Kelly's employment was problematic. We agree with the court that the "relationship of cause and effect, the essential feature of Sec- tion 8(b) (2), can exist as well where an inducing communication is, in terms, courteous or even precatory as where it is rude and demand- ing."' Such communication, however, must ordinarily be a request or demand for action by the Company, and not merely the expression of misgivings on the part of the Union. Here, it is not shown that the Company, because of past pressures or because of its exclusive reliance on the Union's membership as its labor pool, was conditioned to obey in its employment policies or actions any intimation on the part of the Union.3 Cofod's "reaction" to Miss Hilton's remarks was exaggerated; it'could not have been reasonably anticipated on the part of the Respondent. To find "causation" within its legal meaning under such circumstances would be an undue application of the goat hoc, propter hoc approach. Accordingly, we shall dismiss the com- plaint insofar as it alleges a violation in connection with Kelly's loss of the assistant editor's job. ORDER Upon the basis of 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 771, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining so much of its contract with Kenco Films, Inc., as discriminates respecting severance pay or notice on the basis of 2 N.L R.B. v. Jarka Corporation of Philadelphia, 198 F. 2d 618, 621 (C.A. 3), enfg. In part 94 NLRB 320. Cf. Bub Grade Engineering Company, 93 NLRB 406. LOCAL 771, INT'L ALLIANCE OF THEATRICAL, ETC. 3 union membership -during the first 30 days of an employee's employment. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in its business office, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of 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, including all places where notices to its members are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to said Regional Director signed copies of the afore- said notice for posting, by Kenco Films, Inc., the Company willing, where notices to its employees are customarily posted. (c) Make whole Alfred F. Kelly for loss of severance pay in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (d) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated Section 8(b) (2) and (1) (A) by causing employee Kelly's discharge. A 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." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 771, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OP- ERATORS OF THE UNITED STATES AND CANADA AND TO ALL EMPLOYEES OF KENCO FILMS, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our members and the employees of Kenco Films, Inc., that: 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT maintain so much of our contract with Kenco Films, Inc., as discriminates respecting severance pay or notice on the basis of union membership during the first 30 days of an employee's employment. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL make whole Alfred Kelly for loss of severance pay suffered because of the discrimination caused against him. LOCAL 771, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, Labor Organization. Dated---------------- B}'------------------------------------- (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 STATEMENT OF THE CASE Upon charges filed by Alfred F. Kelly, an individual, the General Counsel of the National Labor Relations Board issued a complaint dated October 18, 1960, against Local 771, International Alliance of Theatrical State Employees and Moving Picture Machine Operators of the United States and Canada , herein called Respondent Union, alleging that Respondent has engaged in unfair labor practices affecting commerce within Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Acf,-as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act. Respondent filed an answer denying the unfair labor practices alleged. Pursuant to notice, a hearing was held on November 21, 1960, in New York City, before the duly designated Trial Examiner . The'General Counsel and Respondent were represented by counsel and participated in the hearing. Respondent's mo- tions to dismiss the complaint ai•e resolved in accordance with findings and conclu- sions hereinafter set forth. . Upon the entire record, and from my observation of the demeanor of all witnesses, I make the following: .. - FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE COMPANY Kenco Films, Inc., herein called the Company or Kenco, is a New York corpora- tion with its principal place of business in New York City; it supplies services to the television film industry, including a print service and distribution and revision of spot commercial services. Kenco, in 1959, performed. the described services at a value exceeding $400,000, more than $50,000 of which was for out-of-State enter- prises. I find that Kenco is engaged in commerce within Section 2(6) of the Act. H. RESPONDENT LABOR ORGANIZATION Respondent Union is a labor organization within Section 2(5) of the Act. LOCAL 771, INT'L ALLIANCE OF THEATRICAL, ETC. III. THE UNFAIR LABOR PRACTICES 5 The principal issues involved are (1) whether the Union caused Kenco to dis- criminate against Alfred Kelly because of Kelly's nonmembership in the Union, and (2) whether certain provisions in a labor relations contract between Kenco and the Union unlawfully discriminate between union and nonunion employees. Kenco is named in the complaint as party to the contract but not as a party Respondent. Unless otherwise stated, all events recounted here occurred in 1960. Kenco and the Union have had contract relations for about 11 years; the current agreement contains, among other items, a 30-day union-shop provision and it also requires Kenco to advise the Union of job vacancies and new hirings. The General Counsel does not contend that the contract confers exclusive or preferential hiring powers upon the Union; nor does he contend that such practice exists. The office of Union Business Agent John Oxton administers the Union's contracts with Kenco and other employers. Lois Hilton is Oxton's secretary, and she has been similarly engaged by prior agents for 14 years. Oxton is out of the office much of the time, and Kenco President Kenneth Cofod testified that he has frequently dealt with Miss Hilton in "conducting the obligations of the contract, employment of people." Desiring to hire an assistant film editor in August, Cofod requested the Union to send some applicants to be interviewed for that position. The individuals referred by the Union did not satisfy Cofod; whereupon Cofod arranged an interview with Alfred Kelly through other channels, Kelly being interested in such employment at the time. Cofod told Kelly, during their meeting on or about August 26, that Kelly had the necessary job qualifications and Cofod inquired concerning Kelly's membership in the Union; Kelly had been suspended some time before and Kelly replied that he was not a union member. Cofod told Kelly that he (Cofod) would notify the Union that he was considering hiring Kelly On September 1, Cofod notified Kelly to report for work the next day. Kelly reported as instructed on September 2; he filled out employment papers and began an orientation period Cofod's assistant meanwhile escorted Kelly throughout the plant and introduced Kelly to the bookkeeper and other personnel as a newly hired employee. Kelly, I find, was hired on September 2, and was to begin full-time work on September 5. Kelly's employment was short-lived. For later, on September 2, Cofod told Kelly that the Union had notified Cofod that Cofod could not hire Kelly because of Kelly's nonunion status. Cofod thereupon removed Kelly from the editor job and he offered Kelly another position with Kenco, but which was out- side the Union's jurisdiction. Testifying on direct examination as a witness for the General Counsel, Cofod stated that he called the union office and spoke to Miss Hilton concerning Kelly and that Hilton told him in effect that Kelly was not in good union standing, that the Union would not reinstate Kelly, and that the Union "may have some problems" should Kenco employ Kelly; Cofod went on to testify that Hilton's further remarks were to the effect that Cofod should not retain Kelly and Cofod thereupon testified that Hilton's comments influenced his action as to Kelly The thrust of Cofod's direct testimony was substantially blunted when he testified on cross-examination that he alone made the decision respecting Kelly and that Hilton did not tell him not to hire Kelly or threaten a strike or any other trouble if he did so, and Cofod further stated that Hilton did not otherwise cause Cofod either to discharge or to refuse to hire Kelly. Hilton testified that she was without authority to tell Cofod not to hire Kelly or to threaten him in such connection; she denied doing so and she further testified that she assumed Kelly had continued in Kenco's employ Further Findings Respecting Kelly's Case Charges were filed only against the Union; hence, no issue is tendered concerning Kenco's liability for Kelly's discharge. In order to sustain the complaint against the Union, it must be established that Hilton was a union agent and that, as such agent, Hilton caused the Company to discriminate against Kelly. The causation issue turns almost entirely upon Cofod's testimony concerning his conversations with Hilton It should be noted here, as the parties were advised at the hearing, that Kelly's testimony was hearsay so far as those conversations are concerned and that, while such testimony was adduced, it was not received for pur- poses of proving the contents of Cofod-Hilton conversations Suspicion aside, the record does not disclose why Cofod changed his testimony on cross-examination The fact is that he did so Under all the circumstances. therefore, and assuming, but without deciding, Hilton's status as a union agent, I am unable to find that the record preponderantly establishes that the Union caused the Company to discharge s DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelly from the editor position. I shall accordingly recommend dismissal of the complaint in such regard. The Contract Issue Paragraph VIII of the present contract between Kenco and Respondent Union provides in part that before being discharged for cause all union members "shall receive two weeks' notice thereof or two weeks' pay in lieu thereof. Mindful that all employees can be lawfully discharged under the union-shop contract clause unless they join the Union within 30 days, the General Counsel alleges that paragraph VIII is unlawful in failing to grant nonunion employees the severance benefits granted union members during the 30-day free period. Respondent claims in de- fense, that the contract provides a probationary status for the first 30 days of employment and that Kenco is entitled to discharge without recourse during such 30-day period. However, the contract does not so provide, and there is no evidence that the parties established such practice in administering the contract. The con- tract accordingly discriminates on the basis of union membership during the men- tioned 30-day period, and I conclude that the Union has thereby violated Section 8(b) (1) (A) and (2) of the Act by being party to and maintaining such contract. See Carty Heating Corporation and Mechanical Contractors Association of New York, Inc., 117 NLRB 1417, 1418; K.M. & M. Construction Co., 120 NLRB 1062, 1063, 1076-1077, and cases cited therein; American Advertising Distributors, 129 NLRB 640. Kelly's discharge illustrates the unlawful aspect of paragraph VIII. The Act guarantees his right to abstain from union membership as a condition of employ- ment until the 30th day of his employment, and he accordingly had a right to be free from discrimination on the basis of union membership during such statutory grace period. Had Kelly been a union member, he would have been entitled to the mentioned notice or severance pay upon removal from the editor job on Septem- ber 2; his nonmembership was the only reason for depriving him of such benefit. Even though I have not found the Union to have caused Kenco to discharge Kelly, I do find that by being party to and maintaining paragraph VIII of the contract, the Union has caused Kenco to discriminate against Kelly respecting severance pay or notice, thereby violating Section 8(b) (2) and (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth in section III, above, occurring in connection with the operations of Kenco set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. I shall recommend that the Union cease maintaining its contract with Kenco to the extent that such contract grants or denies benefits to employees on the basis of union membership during the original 30-day period of employment. As Respond- ent Union caused Kelly to be deprived of 2 weeks' pay or notice under the afore- mentioned discriminatory provision of the contract, I shall also recommend that Respondent Union make whole Kelly by paying him a sum of money equal to 2 weeks' severance pay; such amount, because it is in the nature of severance pay, shall be unaffected by interim earnings outside the contract unit. CONCLUSIONS OF LAW 1. Kenco is engaged in commerce within Section 2(6) and (7) of the Act 2. Respondent Union is a labor organization within Section 2(5) of the Act. 3. Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act by maintaining a discriminatory contract provision with, and thereby causing, Kenco to discriminate against employees and by specifically causing Kenco to discriminate against Alfred Kelly in violation of Section 8(a) (3) of the Act. 4. The unfair labor practices found herein affect commerce within Section 2(6) and (7) of the Act. 5. The record does not preponderantly establish that Respondent Union caused Kenco to discharge Kelly. [Recommendations omitted from publication.]