Program Publishing Co.

PROGRAM PUBLISHING CO. 95 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT interrogate our employees concerning their testifying in Board proceedings in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with discharge or other reprisals because of their union or concerted activities. WE WILL NOT threaten our employees with discharge for displaying union contract books in their pockets. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 243, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by the National Labor Relations Act. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated------------------- By-------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. 963-9330, if they have any questions concerning this notice or compliance with its provisions. Arthur Klar, d/b/a Program Publishing Co.;. National Pub- lishers, Inc. and Anthony Fasanaro Local H-63, Motion Picture Home Office Employees , Stage Em- ployees and Moving Picture Machine Operators , AFL-CIO and Anthony - Fasanaro. Cases Nos. 2-CA-9427 and 2-.CB-3779. February 25, 1964 DECISION AND ORDER On November 4, 1963, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease 'and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Decision and a supporting- brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the- Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]-. 146 NLRB No. 12. ' 744-670-65--vol. 146-8 . - 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Trial Examiner's Decision, the Respondent Union's exceptions and brief, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner? The Respondent Union excepts to, inter alia, the Trial Examiner's finding that book- man Fasanaro , the complainant , was an employee of Respondent Employer Klar , and not an independent contractor. Klar acquired by agreement with Twentieth Century-Fox Film Corporation the exclusive right to publish and sell souvenir programs for the motion picture "Cleopatra ." Klar engages bookmen to sell these souvenir programs at various theaters throughout the country. The record does not support the Trial Examiner's find- ings that bookmen are not to sell anything other than the "Cleopatra " books, and that Klar maintains "very tight control" over bookmen's activities . The record shows, on the 'contrary , that any control over the day-to-day performance of bookmen would be exercised by theater managers, who are at the location , rather than by Klar, who is not present. Under all the circumstances, nevertheless , particularly in view of Klar's agreement with Twentieth Century-Fox indicating that bookmen are employees , and the facts that the bookmen make no investment, take no risks, pay no costs , have little or no opportunity to increase their profits by the exercise of their own judgment , and can be removed or re- assigned at will by Klar, we find, in agreement with the Trial Examiner , that bookman Fasanaro was an employee of Kiar and not an independent contractor. a The Recommended Order is hereby amended by inserting the following before para- graph A: Upon the entire record in these cases , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on June 28 , 1963, by Anthony Fasanaro, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued a consolidated complaint, dated July 31, 1963, against Arthur Kiar, d/b/a Program Publishing Co., and National Publishers, Inc., (herein called Program and National, respectively), in Case No. 2-CA-9427, and against Local H-63, Motion Picture Home Office Em- ployees, Stage Employees and Moving Picture Machine Operators, AFL-CIO (herein called Local H-63, or Union), in Case No. 2-CB-3779. With respect to the unfair labor practices, the complaint sets forth the specific respects in which it is alleged that the Respondents engaged in unfair labor practices within the meaning of the National Labor Relations Act, as amended, herein called the Act. Thus, it is alleged therein that the Respondent Employers violated Section 8(a)(3) and (1) of the Act and that the Respondent Union violated Section 8 (b)(1) (A) and 8(b)(2). In their oral response to the complaint, given at the outset of the hearing, the Respond- ent Employers conceded certain facts with respect to their business operations, but denied all alleged unfair labor practices . The Respondent Union in its answer, duly filed, similarly denied the commission of any unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin at New York City on August 27 and 28, 1963 . All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after presenting their evidence, and to file briefs. Motions to dismiss , made by the various respondents at the close of the hearing, were taken under advisement . They are disposed of as appears hereinafter in this Decision. The parties waived oral argument. Subsequent to the hearing, the General Counsel, the Employers, and the Union filed briefs which have been fully considered. - PROGRAM PUBLISHING CO. 97 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Program is an individual proprietorship operated by Arthur Klar and engaged in the publishing, sale, and distribution at retail of souvenir programs and related products for stage shows and films. National, a New York corporation, is engaged in the, same business. Klar is also president of National, a corporation which he formed in 1957. For several years the latter was inactive. Early in 1963 Klar signed a contract with Twentieth Century-Fox Film Corporation, pursuant to which he secured the exclusive rights to publish and sell souvenir programs for the motion picture "Cleopatra," then about to be released for showing at theatres throughout the Nation. Klar thereupon reactivated National for the sole purpose of handling the distribution and sale of these programs. Klar and his wife own all the stock in National. Mar testified that, as president, he actively controls and manages the latter corporation. Both Program and National occupy the same office space in New York City and fora time after its reactivation, National and Program shared the same telephone number. Barry Casares, the office or business manager for Program, performs the same functions for National. Separate payrolls are- maintained for the employees of each business but some indi- viduals, such as Casares, are on both payrolls. In addition, the bookkeeping staff and other personnel in the office render service for both Program and National. On these facts, it is clear, and the Trial Examiner finds, that under the Act here involved Program and National constitute a single employer. N.L.R.B. v. Stowe Spinning Company, et al., 336 U.S. 226, 227 ("Interlocking directorates and family ties made the four [respondent mills] equal one for our purposes"); Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 14-16; N.L.R.B. v. Concrete Haulers, Inc., et al., 212 F.2d 477, 479 (C.A. 5). ("The interdependence and integrated nature of the operations of the respondents, the common ownership of stock, and the fact that the same officer administers a common labor policy, clearly indicate that there is only one employer for the purposes of this Act.") Klar testified that Program's.gross sales for 1962 exceeded $500,000 and that over $50,000 of this volume was derived from sales outside the State of New York. The Respondent National conceded that during the year 1963 it will publish, sell, and distribute souvenir programs valued in excess of $500,000, of which amount products valued in excess of $50,000 will be shipped from its place of business in interstate commerce directly to States of the United States other than the State of New York. During the period in question, the Stanley Theatre'in Philadelphia was one of the numerous locations at which National's Cleopatra program was being sold. The Respondents stipulated that this theatre, which is owned and operated by the Stanley Company of America, had gross receipts for the fiscal year 1962 in excess of $500,000 and had license agreements valued in excess of $50,000 with various motion picture producers for films produced outside the State of Pennsylvania. Upon the foregoing facts, the Trial Examiner concludes and finds that Program and National are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent Union and Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and. Helpers of America (herein called Local 138, or Teamsters) are labor organizations within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and. sequence of events Anthony Fasanaro, the Charging Party' herein,, was a "bookman" in which capacity. he sold souvenir. ^ programs, or "books," in connection with New York stage shows. Over a period of years he worked for Program at various New York theatres. Occasionally, while in the employ of Program, when a stage show went on the road he accompanied it 'to other cities. Early in 1963, as an employee of Klar, and in -the performance of his duties as a bookman, he accompanied a Maurice Chevalier production to Toronto and remained with that show when it returned to New York City. `Later, Fasanaro was employed by Klar to sell souvenir programs for the Sid Caesar production known as "Little Me." While so engaged, in April 1963, Fasanaro joined the Teamsters. Neither then, nor at any time material herein, did Program or National have a collective-bargaining agreement with Local H-63 or any other labor organization. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 25, 1963 , Klar gave Fasanaro a letter assigning him to sell Cleopatra programs at the Stanley Theatre in Philadelphia . The following day when Fasanaro was ready to begin work at this location , representatives of H-63 appeared on the scene and told Klar and the manager of the theatre that unless a member of H-63 was assigned the sale of these programs, the Respondent Union would picket the theatre. As a result, the theatre management refused to permit the vending of any programs. Sale of the souvenir booklets was not resumed until several weeks: later when Klar assigned one Nathan Pomerantz , a member of H-63, to that location. The General Counsel contends that the Union unlawfully caused Klar to terminate the arrangement with Fasanaro because the latter was a member of the Teamsters, rather than H-63, and that the Respondent Companies violated the Act in acceding, to this demand . The Respondents deny all allegations that they. committed any unfair labor practices . Principal among the union defenses is the contention that its action was taken only to compel Klar to honor a prior agreement with Pomerantz that the latter would be employed in selling the Cleopatra programs at the Stanley Theatre. The Respondent Companies deny liability primarily on the ground that Fasanaro was not an employee but an independent contractor. B. The facts In February 1963 , Klar signed the agreement with the Twentieth Century-Fox Film Corporation (herein called Fox) wherein he secured for National the exclu- sive right to publish and sell ;the souvenir program for Cleopatra . One term (para- graph 2(c)) in this contract read as follows: Licensee [National] shall assume and bear the sole and full responsibility for, and cost of, the preparation, writing, translating, engraving printing, mechanics and marketing of all souvenirs prepared , published or sold hereunder by Licensee, including, without limitation, preparation of copy paste-ups and other material, printing, payments and concession fees to theatres, and shall supply at Licensee's expense such staff and employees as Licensee shall deem necessary to market the souvenir. Such employees will be members in good standing of Local H-63 of the I.A.T.S.E.,' A.F.L.-C.I.O., having jurisdiction over-such,, work, in all such areas where such Union has such jurisdiction. Russell M. Moss, executive vice president of H-63 , testified that shortly thereafter he heard about the above clause in Klar's agreement with Fox and that he immedi- ately contacted Kiar in that connection. According to Moss, when he told Klar that he wanted as many members as possible to get jobs in selling Cleopatra programs, the latter suggested "send them over to see me . . . as many as you want." Klar testified that for some time he assumed that this clause was legal and that he was bound to give the bookmen assignments only to members of H-63 . He further testified: "Subsequently I found out that they [Fox] merely intended a preference for H-63 and .1 was morally bound to go along with that preference." As noted earlier, the dispute out of which the present proceeding arose involved Klar's assignment of a bookman to the Stanley Theatre in Philadelphia. Fasanaro' testified that he first asked Klar for this assignment in April or May 1963, and on several occasions thereafter he renewed this request . Finally, on June 25, Klar told Fasanaro that he was sending him to the Stanley Theatre and, during the course of their conversation , gave him two letters, both of which bore Klar's signature. One of these was a letter of introduction, addressed to the manager of the Stanley Theatre, which stated that Anthony Fasanaro was to handle the sale of the Cleopatra souvenir programs in Philadelphia. The other, addressed to Fasanaro, read as, follows: This letter confirms that you will handle the sale of the "CLEOPATRA"' Souvenir Programs at the Stanley ' Warner . Theatre in Philadelphia. You have agreed to immediately make application to join H-63 , I.A.T.S.E. Union as a member. . Sincerely, NATIONAL PUBLISHERS, INC., ARTHUR KLAR. Fasanaro testified, and his . testimony in this regard was uncontroverted , that Klar told him at the time that although he was giving him the above letter "I want you to, go up to H-63 and see if they would take you into the Union." 1I.e., International Alliance of Theatrical Stage Employees and Moving Picture Opera- tors of the United States and Canada , AFL-CIO, parent organization of H-63, hereinafter referred to as IATSE. PROGRAM PUBLISHING CO. 99 Immediately after leaving Klar's office, Fasanaro went to the headquarters of Local H-63. There he met Russell Moss and asked him if he could join H-63. Moss left him for a few minutes and upon his return told Fasanaro that the Union could not accept him. Moss testified at the hearing that on this occasion he checked on Fasanaro's record and found that the latter was the same individual who had declined to join the Union some 10 months earlier when working for an employer who had a union-shop contract with Local H-63. According to Moss, "I reviewed the fact that when he had an opportunity to join he refused to join . . . I said to him, `Tony, you had an opportunity ... you refused . I am in no position now to give you an application."' Upon leaving Moss' office, Fasanaro went back to Klar and informed him of the Union's answer. Klar told Fasanaro to proceed to Philadelphia, notwithstanding the rejection by H-63, and then gave him a $75 advance. The picture "Cleopatra" was scheduled to open at the Stanley Theatre on the evening of June 26, 1963. Fasanaro arrived at the theater about 6:30 p.m. and found Klar, Moss, Pomerantz, and one Herbie Weitzner 2 standing in the lobby. According to Fasanaro, Klar greeted him with the statement that it appeared that there would be "trouble." Shortly thereafter Ellis Shipman, an official of the Stanley management who was in charge of its labor relations, arrived on the scene. Fasanaro thereupon presented Klar's letter of introduction to Shipman and the latter then suggested that Klar, Moss, Weitzner, and Fasanaro meet with him im- mediately in his office. The participants did so. Shipman testified at the hearing as to this conference. His testimony was credible and, in large measure, corrobo- rated by all the other witnesses. It was as follows: When Shipman asked the assembled participants the cause of their difficulty, Moss told him that he had an agreement with Klar that Local H-63 men were to sell the Cleopatra books. At that point Klar stated that whereas a clause in his agreement with Fox provided that representatives of IATSE were to handle the sale of the books, he felt that this provision was illegal. Moss disclaimed any knowledge as to the illegality of such a term in the agreement and stated that, in any event, Klar had promised to have a member of Local H-63 sell the books in Philadelphia, that he had a longstanding agreement with Klar "that his [Moss'] men would sell the books" and that he would insist that Klar adhere to this commitment .3 Shipman then asked Moss whether he would picket the theater if Fasanaro was permitted to sell the books and Moss answered in the affirmative. The meeting ended when Shipman told all present that under the circumstances he would permit no one to sell any books until the parties ,resolved their differences and the theater management could be relieved of all threats of picketing. The following day Klar telephoned Fasanaro to propose that he and Pomerantz alternate in selling books at the Stanley Theatre. Klar suggested that Fasanaro sell the books one week and Pomerantz the next week. Fasanaro testified that he re- jected this offer on the ground that, he had the letter assigning him to the Stanley job and that he did not feel obliged to share it with Pomerantz? On July 11, 1963, Klar sent Fasanaro the following letter: DEAR MR. FASANARO: Please proceed to Cleveland immediately to assume the sale of the "CLEOPATRA" Souvenir Programs in that city at the Ohio Theatre. Mr. Romalo Mustari will turn the program over to you upon your arrival in that city. Sincerely, NATIONAL PUBLISHERS, INC., (Sgd.) Arthur Klar. Fasanaro did not accept the offer of the Cleveland assignment and Klar never gave him an opportunity to return to Philadelphia. Shipman testified that about July 12, he received -a letter from Klar authorizing Pomerantz to sell the Cleopatra books at the Stanley Theatre. He further testified that, on about July 17, Pomerantz began selling the books and that from then until the date of the hearing this individual had been so engaged. There was evidence that on May 15, 1963, Local 628 of the Teamsters, a local of that Union in Philadelphia, notified Local H-63 that thenceforward it proposed to claim jurisdiction over the sale of theater programs and souvenirs in the Philadel- a Weitzner was president of H-63. 3 The quotation is from Shipman's credited testimony. 4 The foregoing findings are based on the credited testimony of Fasanaro. Klar cor- roborated Fasanaro in this connection and also testified that his compromise proposal was rejected not only by Fasanaro but by Moss as well. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phia area. Even earlier, however, Local H-63 plainly set forth a jurisdictional claim over the sale of souvenir books in Philadelphia theaters. On April 17, 1963, Moss wrote a letter to Shipman in which he asserted that Local H-63 was the bargaining agent for the employees of "various souvenir book publishers....' He further stated: There are in existence, also, contracts between various motion picture producers and their souvenir book publishers and distributors which provide that the distributor will employ I.A.T.S.E. members for the sale of such souvenir books. This clause is contained in the agreement between 20th Century-Fox Film .Corporation and Program Publishing Company covering the .souvenir book on Cleopatra and The Longest Day. As found earlier herein, Klar did not have a contract with any union covering the bookmen who worked for him. Nevertheless, Moss treated the Fox-Klar contract as having conferred exclusive dominion on members of Local H-63 for the sale of the Cleopatra programs. Thus, his letter to Shipman concluded with the declaration: This Local Union will take all legal actions including informational picketing to prevent any infringement on our jurisdiction in this activity. Apart from the pressures from H-63 to secure work for its members, Klar felt obligated to accede to these demands because of the terms of his contract with Fox. Thus, he testified: Right from the outset-of course, I wanted to go along with 20th Century Fox's suggestion. They wanted-they preferred, I will put it that way, that H-63 sell the book at all times, and I wanted to go along because naturally I was doing business with them. I favored [H-63] only because of that clause. Otherwise I didn't care who sold the book. I had no contract with any union. I wanted the books sold. That was my only interest. It is significant that shortly after June 26,"1963, Fox and Klardeleted this clause from their agreement. At the hearing the Respondents endeavored to establish that for many months prior to June 26, 1963, Klar was committed to having Pomerantz handle the book sale in Philadelphia and that only because of threats and pressure from the Teamsters had he yielded at the last minute and given the assignment to Fasanaro. Thus, at one point during his testimony, Klar stated that he had promised Pomerantz the Philadelphia assignment in February, shortly after having executed the contract with Fox. He further testified that frequently thereafter he spoke to Pomerantz- about the matter. On the other hand, on June 10, 1963, he averred, in an affidavit of that date, that he had not yet assigned any bookman to Philadelphia and that he was still consider= ing Fasanaro. The affidavit made no mention of Pomerantz' in any way. On July 11, 1963, Klar gave the General Counsel another affidavit in which he related the circumstances surrounding the occasion when he gave Fasanarb the letter assign- ing him to Philadelphia and the aftermath of that event when Fasanaro arrived at the Stanley Theatre on June 26. Nowhere in this latter affidavit did Klar assert that pressure from the Teamsters had been the sole motivation for giving the Philadelphia assignment to Fasanaro. From his cross-examination, however, it is apparent that Klar was subjected to continuing pressure from Local H-63 to. assign one of its mem,- hers to the Philadelphia location. Thus, Klar testified that about a month before "Cleopatra" opened at the Stanley Theatre, Local H-63 informed. him that unless it had. assurances to this effect he might have "trouble" 8 in Philadelphia. Although Klar also testified about having heard that the Teamsters would cause him "trouble" he conceded that it was not until after June 26 that the Teamsters first contacted him. He further testified that this contact was in connection with securing other em- ployment for Fasanaro. Quite naturally Klar's primary interest lay in accomplishing the greatest possible sale of his souvenir books. What was probably the clearest expression of Klar's real feelings in the matter appeared in his 'testimony on cross-examination, when after de- tailing the threats which Local H-63 had made prior. to his assigning Fasanaro:to Philadelphia, he testified: There were many reasons together why I gave Fasanaro the.job. I didn't care [who sold the books] as I testified many times.... I gave Fasanaro this job on my own free will. I gave him•this letter. I went down there to see that he sold the book. I fought his battle for him up-in the office there. Mr. Shipman would not permit the book to be sold. 5 The quotation is from Mar's testimony. PROGRAM PUBLISHING CO. 101 Klar, however, was not convincing insofar as- he testified to the effect that he had assigned the Philadelphia location to Pomerantz months before the show opened in that city. Moss' testimony in this connection was equally unpersuasive . Pomerantz was present at the hearing. Rather significantly, the Respondent Union did not call him as a witness to support its contention that Klar had given him a definite assign- ment to Philadelphia long before Fasanaro. Consequently, the Trial Examiner finds that prior to the date when Klar gave Fasanaro the letter assigning him to the Stanley Theatre, Klar had never given Pomerantz a firm commitment that Pomerantz would go to that location. From Moss' testimony, as well as that of Shipman, it is clear that Local H-63 considered the Fox-National agreement as having con- ferred a hiring preference on the members of Respondent Union. It is equally manifest, and the Trial Examiner.finds, that on June 26, 1963, when Moss threatened to picket the Stanley Theatre if Fasanaro, a member of the Teamsters, was permitted to sell the souvenir books, the. object of this threat was to force Klar to adhere to the preferential hiring clause in the Fox contract and assign ,the work in Philadelphia to a member of Local H-63. This threat, accomplished its purpose for it caused the Stanley management to ban the sale of any books until the threat of pickets was re- moved, thus forcing Klar to terminate his arrangement with Fasanaro and reassign the work to Pomerantz, a member of the Respondent Union. There remains, however, the issue as to whether Fasanaro was an employee of National, or, as alleged by the Respondent Companies, an independent contractor. To that issue we will now turn. The Respondent Companies apparently concede that Fasanaro was an employee when engaged by Klar as a bookman for the Maurice Chevalier and Sid Caesar stage shows. When Fasanaro secured the assignment to the Stanley Theatre in Phila- delphia there, is no evidence that he received any notice that his relationship with Klar would be any different ,from what it had been. He even received a $75 advance from the office manager before leaving for Philadelphia. At the hearing, Klar de- scribed this as a "loan" rather than an "advance." . On the other hand, Klar testi- fied that during this same meeting there was no discussion with Fasanaro as to what the terms of their arrangements would be since, from his experience in the bookselling business, Fasanaro could assume that the commission would be 20 percent. National has over 40 bookmen engaged in the sale of Cleopatra programs. One of 'these, Harry Silverman, is located at the Rivoli Theatre in New York City. The others are assigned to theaters throughout the United States. The Respondent Com- panies concede that Silverman is, indeed, an employee of National. They contend, however, that all the others, generally described as "out-of-town bookmen," are inde- pendent contractors. .The Board has stated that an employer-employee relationship exists "where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end." Deaton• Truck Lines, Inc., 143 NLRB 1372; Albert Lea Cooperative Creamery Association, 119 NLRB 817, 821-822. With this test in mind the relationship of National to the out-of-town bookmen must be examined. The Respondent Companies seek to distinguish the relationship of Silverman, an admitted employee, from that of the other bookmen, on the ground that National makes payroll deductions from his commissions for social security and withholding taxes. In addition, Klar testified that he personally visits the Rivoli Theatre, on occasion, and thus is able to.observe whether Silverman is on duty and sometimes offers suggestions on how. to improve his sales techniques. Obviously, Klar is un- able to maintain the same degree of supervision over the activities of the out-of-town bookmen. On the other hand, apart from this aspect of Silverman's employment and the fact that National withholds taxes from his commissions, his' relationship with National is not substantially different from that of the out-of-town bookmen. Thus, as to all of the bookmen, it is Klar, and not the salesman, who determines the quantity of programs that is sent.to the theater for sale. The price of the program is set at $1 by the contract between Fox and National and this price cannot be varied by the salesmen. National arranges for the sale at each theater and the theater's commission is set-at 10,percent: Kiar stated that the bookman acts as his agent in paying this percentage to the theater and thereafter submitting to Klar a receipt for such pay- ments. National has fixed the salesman's commission at 20 percent and there is no way for the salesman to increase his return per program. Each salesman is supplied with programs on a consignment basis, title being retained by National, and the unsold programs are returned to the Respondent Companies. Klar testified that no bills are rendered to the bookmen for these programs, since they are on consign- ment, and, further, that the Company pays all shipoing charges as well as the State sales tax in those States where such a tax is applicable. The salesman is completely 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dependent on the sale of the souvenir books, for, according to Klar, bookmen are not supposed to sell anything other than the Cleopatra programs. From. Kiar's testimony it is clear that bookmen may be removed by National at will and.that replacements in any city must be approved by the Company. Klar testified that he had.invested over $500,000 in advances to Fox and for printing costs of the Cleopatra program. With an investment of these proportions it is clear that he has a very keen interest in the sales performance of his bookmen throughout the country and that a very tight control is maintained over their activities. Finally, although the Respondent Com- panies contend that the Fox agreement provides for sublicensing or subcontracting to the individual bookmen, it is significant that the Fox-National contract has no such terms.. This contract does provide, however, in the paragraph quoted earlier, that National as the licensee "shall supply at Licensee's expense such staff and employees as Licensee shall deem necessary to market the Souvenir." [Emphasis supplied.] C. Concluding findings In the light of the foregoing facts the Trial Examiner concludes and finds that National exercised such control over its out-of-town bookmen that the relationship was that of employer-employee, within the meaning of the Act. N.L.R.B. v. Nu- Car Carriers, Inc., 189 F. 2d 756, 757 (C.A. 3), cert. denied 342 U.S. 919; Local 24, International Brotherhood of Teamsters (A.C.E. Transportation) v. N.L.R.B., 266 F. 2d 675, 678-680 (C.A.D.C.). See also U.S. v. Silk, 331 U.S. 704, 719; N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 130-13.1; and Radio City Music Hall Corp. v. U.S., 135 F. 2d 715, 717 (C.A. 2). As found earlier herein, the conduct of the Respondent Union caused the Re- spondent National to terminate Fasanaro on June 26, 1963, and prevented National from offering any further employment at the Stanley Theatre to Fasanaro because he was not a member of Local H-63. At the time, since there was not even a collective-bargaining agreement in effect between Local H-63 and the Respondent Companies, there could not be, of course, any valid union-security arrangement. Accordingly, the Trial Examiner concludes and finds that, as alleged by the General Counsel, the Respondent Union by this action engaged in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. Local 138, International Union of Operating Engineers, AFL-CIO (Nassau and Suffolk Con- tractors' Association, Inc.), 128 NLRB 1393, 1405-1407, enforced as to this point, 293 F. 2d 187, 195-196; Northern California Chapter, The Associated General Contractors of America, Inc., et al., 119 NLRB 1026, 1030, affirmed sub nom. Operating Engineers Local Union No. 3, etc. (St. Maurice, Helkamp & Musser) (N. Calif. Chap. of AGC) v. N.L.R.B., 266 F. 2d 905 (C.A.D.C.), cert. denied 361 U.S. 834; Local 610, United Brotherhood of Carpenters and Joiners of America {V. G. Cameron, d/b/a Cameron Store Fixtures), 122 NLRB 476, 477. The Trial Examiner further concludes that by acceding to the demand of Local H-63 that Fasanaro be terminated and that he be replaced by a member of Local H-63, th'e Respondent Companies engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1). N.L.R.B. v. Local 138, International Union of Operat- ing Engineers, et al. (Nassau & Suffolk Contractors' Assn.), 293 F. 2d 187, 197 {C.A. 2); N.L.R.B. v. United States Steel Corp. (American Bridge Division), et al., 278 F. 2d 896, 898 (C.A. 3) .6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Companies and the Respondent Union set forth in section III, above, in connection with the operations of the Respondent Com- panies described in section I, above, have a close, intimate 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 c6t rn rce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, it will be recommended that each cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 6 As a circuit court stated in a somewhat similar case, even though the employer "was a reluctant violator [of the Act] . . . compliance with the statute was possible and union coercion which induced the employer to violate it is not relevant." N.L.R.B. v. Bell Aircraft Corp., 206 F. 2d 235, 237 (C.A. 2). PROGRAM PUBLISHING CO. 103 As to .the Respondent Companies, it will be recommended that they offer Fasanaro immediate reinstatement to his former or substantially equivalent position. As to the Respondent Union, it will be recommended that Local H-63 cease and desist from causing, or attempting to cause, the Respondent Companies to discharge Fasanaro, or any other employee similarly situated,'for failure to. become a member of Local H-63. It will also be recommended that the Respondent Companies and the Respondent Union jointly and severally make Fasanaro whole for any loss of pay suffered by reason of his termination by payment to him of all sums he would have earned had he remained in the employment of National, less his net earnings, if any, since June 26, 1963. Backpay shall be computed in the manner established by the Board in F. W: Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly. CONCLUSIONS OF LAW 1. The Respondents Program and National constitute a single employer and are engaged in commerce within the meaning of the Act. 2. Local H-63 and Local 138 are labor organizations within the meaning of the Act. 3. By causing the Respondent Companies to discriminate against Fasanaro in violation of Section 8(a)(3) of the Act, Local H-63 has engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. By causing such discrimination, Local H-63 has restrained and coerced Fasanaro in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair, labor practices within the meaning of Section 8(b) (1) (A) of the Act. 5. By terminating Fasanaro on June 26, 1963, upon the demand of Local H-63, the Respondent Companies have discriminated against him in violation of Section 8(a)(3) of the Act. 6. By such discrimination the Respondent Companies have interfered with, re- strained, and coerced Fasanaro in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: RECOMMENDED ORDER A. Arthur Klar, d/b/a Program Publishing Co., and National Publishers, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local H-63, or in any other labor organization of their employees, by discharging, or in any other manner discriminating in regard to tenure of employment. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the'extent that such right may be affected by an agreement requiring membership in a labor organization- as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: . (a) Offer to Anthony Fasanaro immediate and full reinstatement to- his former or substantially equivalent position without prejudice to seniority or other rights, and privileges. . (b) Jointly and severally with Local H-63, make Fasanaro whole for any loss of pay he may have suffered by reason of the discrimination against him on June 26, 1963, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to an analysis- of the amount of backpay due. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post. at their offices in New York, New York, copies.of the attached, notice marked "Appendix A." 7 Copies of this notice, to be, furnished- by the Regional Di- rector for the Second Region, after being signed by a representative of the aforesaid Companies, shall. be posted immediately on receipt thereof and be maintained by them for a period of 60 consecutive . days thereafter in conspicuous . places including all places where notices to employees are customarily posted. Reasonable steps: shall be taken by the Respondent Companies to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same place and under the same conditions as set forth in d ,. above,' as soon as forwarded by the Regional Director, copies' of the attached notice marked "Appendix B." (f) -Mail to the Regional Director for the Second Region signed copies of the at- tached notice marked "Appendix A" for posting by Local H-63 at.its business office in New York, New York, where notices to members are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall,, after being duly signed by a representative of the aforesaid Companies, be returned forthwith to the Regional Director for such posting. (g) Notify the Regional Director for the Second Region, in 'writing, within 20 days from the receipt of this Decision and Recommended Order , what steps have been taken to comply herewith .8 B. Local H-63, Motion Picture Home Office Employees, Stage Employees and Moving Picture Machine Operators , AFL-CIO, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Program or National. to discriminate against ,Anthony Fasanaro or any other employee in violation of Section 8(a) (3) of the Act. (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 requiring membership 'in a'.labor 'organization;as a condition of employment as authorized by Section 8 ('a) (3) of the Act. . 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Program and National, in writing, with a copy to Anthony Fasanaro, 'that it requests the reinstatement of Fasanaro to the .job. from which he ' was ter- minated on June 26, 1963 , without prejudice to seniority and other, rights and privileges. (b) Jointly and severally with Program and National make Fasanaro whole for 'any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its business office copies of the attached notice marked "Appendix B." 9 `Copies of this notice will be furnished by the Regional Director :for the Second,Region 'and after being duly signed by a representative of Local 'H-63' shall- .be, posted =im- mediately upon receipt thereof and be maintained by it for 60 consecutive days 'thereafter, in conspicuous places, including all places where notices to its mem-. bers are 'customarily posted. Reasonable steps shall be taken by Local H-63 to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions asset forth in c, above, as soon as they are forwarded by the Regional Director, copies of the attached notice marked "Appendix A." (e) Mail to the Regional Director for the Second Region signed copies of the attached notice marked "Appendix B" for posting by Program and National in all places where notices to employees are customarily posted . Copies of said notice, to be furnished by the Regional Director, shall, after being signed by representatives of Local H-63, be returned forthwith to the Regional Director for such posting. 7 In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall he substituted for the words "A Decision and Order." 81[n the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 9 See footnote 7, siepra. . PROGRAM PUBLISHING CO. 105 ;(f) Notify-the 'Regional Director-for the Second Region , within 20 days from the date of receipt of this Decision and'Recornmen'ded Order, as to what steps have been taken to comply herewith.io 10 See footnote 8, supra., ; ,APPENDIX A . r . . ;NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT encourage membership in Local H-63, Motion Picture Home Office Employees, Stage Employees and Moving Picture Machine Operators, AFL-CIO, or in any other labor organization , by discharging employees or in any other - manner discriminating against any , employee in regard to tenure of employment. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to_bargain collectively through representatives of their own choosing, to ,engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor , organization as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Anthony Fasanaro immediate and full reinstatement to his former or substantially equivalent position and will , with Local H-63, Motion Picture Home Office Employees, Stage Employees and Moving Picture Machine Operators, AFL-CIO, jointly 'and severally make him whole for any loss of earnings suffered as a, result of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that this right maybe affected by an agreement in conformity with Section 8(a) (3) of the Act, as amended. ARTHUR KLAR D/B/A PROGRAM PUBLISHING Co.; NATIONAL PUBLISHERS, INC., Employer. Dated------------------- By- --- ----- - - - --- --Ti-------- • (Representative) ( tle) NOTE.-We will notify the, above-named employee, if. presently serving in the Armed Forces of. the United -States, of his rights to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. . Employees may. communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with its provisions. . APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL H-63• AND To ALL EMPLOYEES, OF ARTHUR KLAR D/B/A PROGRAM PUBLISHING CO.; AND NATIONAL PUBLISHERS, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Arthur Klar d/b/a Program Publish- ing Co., and National Publishers, Inc., to discriminate against Anthony Fasanaro or any other employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by 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. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL request Arthur Klar d/b/a Program Publishing Co., and National Publishers, Inc., to offer immediate and full reinstatement to Anthony Fasanaro to his former or substantially equivalent position. WE WILL jointly and severally with Arthur Klar d/b/a Program Publishing Co. and National Publishers , Inc., make Anthony Fasanaro whole for any loss of pay he may have suffered as a result of our unlawful request that he be discharged. LOCAL H-63, MOTION PICTURE HOME OFFICE EMPLOYEES, STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS, AFL-CIO, Labor Organisation. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. Emple Knitting Mills and International Ladies' Garment Work- ers' Union, AFL-CIO. Cases Nos. 1-CA-4154 and 1-CA-4233. February 26, 1964 DECISION AND ORDER On November 8, 1963, Trial Examiner Fannie M. Boyls issued her Decision 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 take certain af- firmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged. in certain other unfair labor practices, and recommended that the al- legations of the complaint pertaining thereto be dismissed. There- after, the General Counsel and the Charging Party each filed excep- tions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at t'hehearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in these cases,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1 The Respondent filed no exceptions to the Trial Examiner's unfair labor practice findings. 146 NLRB No. 13.