New York Local 11, NABET

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York Local 11, National Association of Broadcast Employees and Technicians, AFL-CIO and American Broadcasting Company, a Division of American Broadcasting Companies , Inc. and National Broadcasting Company, Inc. Cases 2-C B-4371-1 and 2-C B-4371-2. May 2, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 29, 1966, Trial Examiner William Seagle issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and the Respondent filed a supporting brief. The Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 exceptions, the briefs,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below. 2 ORDER Pursuant to Section 10(c) of, the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, New York Local 11, National Association of Broadcast Employees and Technicians, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 1 and substitute therefor the following: "1. Cease and desist from requiring from employees of the employers named in the complaint working in classifications covered by a bargaining agreement between the Respondent and the employers requiring membership in the Respondent as a condition of employment the payment of initiation fees under the schedule of initiation fees found unlawful, or requiring for initiation any other sum which is excessive or discriminatory under all the circumstances." 2. Delete paragraph 2(a) and substitute therefor the following: "(a) Pay to all the aforesaid employees covered by a bargaining agreement between the Respondent and the employers requiring membership in the Respondent as a condition of employment all sums in excess of $150 paid to Respondent under the unlawful schedule of fees on or since December 15, 1965, together with interest as set forth in the section of the Trial Examiner's Decision entitled `The Remedy."' 3. Delete the first paragraph of the notice and substitute therefor the following: "WE WILL NOT require from employees of the employers named in the complaint working in classifications covered by a bargaining agreement between the Respondent and the employers requiring membership in the Respondent as a condition of employment the payment of initiation fees under the schedule of initiation fees found unlawful." ' The Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 2In adopting the Trial Examiner's conclusion that Respondent's initiation fees were excessive, we need not rely on his findings with respect to the fees charged by NA BET locals in Chicago and Los Angeles TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE , Trial Examiner : Upon charges filed on April 28, 1966, by the American Broadcasting Company, a Division of American Broadcasting Companies , Inc. (hereinafter referred to as ABC), and by National Broadcasting Company, Inc. (hereinafter referred to as NBC), the Regional Director for Region 2 issued a complaint dated July 26, 1966 , alleging that New York Local 11, National Association of Broadcast Employees and Technicians , AFL-CIO (hereinafter referred to as NABET), had violated Section 8(b)(5) of the Act. An answer having been filed by the Respondent Union in which it denied that it was violating the Act in this respect, I held a hearing on this issue at New York, New York, on October 19 and 20, 1966. At the close of the taking of the testimony at the hearing, counsel for the General Counsel presented oral argument, and, subsequent to the hearing, counsel for the Respondent and for the employers involved filed briefs. Upon the record so made, and, in view of my observation of the demeanor of the witnesses , I hereby make the following findings of fact: 1. THE RESPONDENT New York Local 11 of NABET is a labor organization within the meaning of Section 2(5) of the Act. 164 NLRB No. 44 NEW YORK LOCAL 11, NABET 243 II. THE EMPLOYERS INVOLVED ABC is a New York corporation which maintains an office and place of business at 1330 Avenue of the Americas in the city and State of New York, and at other places in various States of the United States, where it has been engaged in providing and performing radio and television broadcasting services, and other services related thereto. NBC is a Delaware corporation which maintains an office and place of business at 30 Rockefeller Plaza in the city and State of New York, and at other places in various States of the United States, where it has been engaged in providing and performing radio and television and broadcasting services, and other services related thereto. During the past year, which is a representative period, ABC and NBC, in the course and conduct of their business operations, each derived gross revenues therefrom in excess of $100,000, and each purchased and caused to be transported to its places of business goods and materials valued in excess of $50,000, of which goods and materials valuued in excess of $50,000 were transported and delivered to its places of business in interstate commerce directly from States of the United States other than the States in which they were located. The Respondent admits, and I find, that ABC and NBC, at all material times, have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. THE UNFAIR LABOR PRACTICE NBC and ABC have long had contractual relations with NABET. The last collective-bargaining agreement between each of the Companies and the Union' runs for a term beginning on February 1, 1964, and ending on March 31, 1967, and each of these contracts covers the broadcast technicians employed by each of these Companies.2 Under the provisions of each of the contracts any technician who is employed is temporary for a period of 3 months during which he may be laid off in the absolute discretion of the Company. But employees hired as so- called vacation-relief employees (hereinafter referred to as v.r. employees)3 remain temporary employees even though employed for more than 3 months, unless they are retained after October 31 in the year in which they have been hired. It is further provided in the contracts that temporary employees may become regular employees upon completion of separate periods of service totalling 1 year and that v.r. employees shall become regular employees upon completion of 14 months of service, which, although not continuous, are separated by intervals of less than 1 year. In layoffs, temporary employees have no rights at all but regular employees may be laid off only in the reverse order of seniority. Each of the contracts between the Companies and the Union also contains a union-security clause which requires newly hired employees to become members of the Union 30 days after they have been hired. Provision is also made ' The contracts are with the International rather than with Local 11 but section 3 1 of the constitution of the International requires the local unions to enforce collective-bargaining agreements between employers and the International In Pittsburgh, the technicians are represented by IATSE (International Association of Theatrical and Stage Employees) 2 This bargaining unit is defined in each of the contracts as consisting of "all the technical employees of the Company wherever located, employed in the engineering department of the in each of the contracts for the checkoff of union dues and initiation fees, which are required to be deducted from the first paycheck of an employee. The provisions of the union-security clause and the checkoff requirements are applicable to all classes of employees, including v.r. employees, who, thus, must pay dues and initiation fees as soon as they have become union members. In the fall of 1965, NBC had unusual manpower requirements because of the onset of the football season. The network was carrying both NFL games and collegiate games, and needed a greater number of broadcast technicians than was usually the case, and needed them for a longer period. In all, 83 v.r. employees were hired in 1965. Of these 24 achieved regular status but NBC did not wish to see the others obtain such status. Consequently, NBC approached representatives of Local 11 in October 1965 and requested that the Union agree to allow these v.r. employees to work beyond October 31 without achieving the status of regular employees. Richard Goldstein, the NBC labor relations director, discussed the matter with representatives of both Local 11 and the International but was unable to persuade them to waive the contract requirements. As of October 29, 1965, NBC, therefore, laid off some of the v.r. employees in order to prevent them from acquiring regular status 2 days later, and then rehired some of them, as well as other temporary employees. Local 11 then filed a grievance under the arbitration provisions of its contract with NBC, claiming that the Company was evading the requirements of the contract relating to the status of employees, and that 23 employees who had been hired as temporary employees had become regular employees.4 The grievance filed was dated November 18, 1965. Since 1957, Local 11 had been charging $150 as an initiation fee, which had to be paid by all employees, irrespective of the amounts of their earnings. After its dispute with NBC concerning the status of the v.r. employees arose, Local 11 also began consideration of an increase in the Union's initiation fee. Under date of October 18, 1965, Robert C. Higgins, the president of Local 11, issued the following explanatory bulletin to all of its members: At a special Executive Board Meeting on October 15, 1965, held for the purpose of discussing the seniority problem created at both networks by the tactics of the companies re the method of laying off and hiring new employees, the Executive Board made some recommendations. One of the positive steps taken was to increase the initiation fee to $1,000.00 The Board made this decision after carefully reviewing all aspects of the law and the possible disadvantages. It was emphasized that our present policy of reduction of initiation fee in cases where it could be done uniformly for those new employees in lower classifications would continue and, further that reducing the fee could be done without a referendum vote if the Union felt it would be in our best interests. company" with certain exclusions not relevant in the present case 3 This term derives from the fact that under the terms of the contracts regular employees must take their vacations between April 1 and October 31 of each year, and relief employees must be hired during this period ' These employees were among the 59 v r employees who had been terminated as of October 29, 1965 298-668 0-69-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also pointed out was the fact that many other unions in the industry have much higher fees and this brings NABET more in line with others in the industry. We now have many unemployed qualified people in the Union and any jobs becoming available should be made available to these people without giving up seniority. Many now have worked at the networks just short of the 14 months required in the Network contract. This action would discourage the creation of a pool of employees without any seniority rights and lead to a hiring technique foreign to the broadcasting industry. The statement in the bulletin that one of the positive steps taken by the Union's executive board was "to increase the initiation fee to $1,000" implies that the action taken by it was final and that a flat fee of $1,000 had been adopted as an initiation fee. Actually, a schedule of initiation fees on a sliding scale was adopted, and Higgins testified that a referendum of the membership on the new initiation fees was contemplated. The record is very obscure-indeed there is no direct testimony-as to whether the contemplated referendum was held. In any event, by December 15, 1965, the new schedule of initiation fees had been put into effect. It was as follows: Weekly Wages Initiation Fees Under $119 $150 $119 to $167.99 $500 $168 to $211.99 $750 $212 and over $1,000 It was not until January 27, 1966, however, that Higgins addressed identical letters to Goldstein, the labor relations director of NBC, and to Richard L. Freund, the vice president of ABC in charge of labor relations, informing them that the Union had increased its initiation fees. As Higgins failed to state in these letters what the new schedule of initiation fees was, both Goldstein and Freund wrote to the union president to request this information,5 and the latter supplied it in a letter dated February 7, 1966. Shortly after he received Higgins' letter of February 7, Goldstein had a conversation with the union president in which he asked the latter whether the new initiation fee schedule would apply to temporary and v.r. employees. When Higgins answered this question in the affirmative, Goldstein charged him with attempting to compel NBC to hire the v.r. employees who were let go in October 1965, and Higgins did not deny this. Indeed, he remarked that the Company ought to employ these people. Goldstein offered to employ some of them provided that they did not become regular employees. Goldstein also formalized NBC's position in a letter dated February 21 to Higgins as follows: This is in reply to your letter of February 7, 1956 announcing a new schedule of initiation fees for all new members of NABET Local No. 11. We cannot advise new employees to honor the new schedule of initiation fees. The fees set forth are clearly excessive. Further, we believe they manifest a discriminatory intent to discourage the practice of hiring temporary or vacation relief employees. S Goldstein's letter was dated February 2, 1966, and Freund's letter was dated February 4, 1966 I hope that Local 11 will reconsider its position and cancel this new schedule. In any event, however, our position is that we have no contractual obligation to require new employees, whether hired in a temporary, vacation relief or regular status, to pay these fees. Freund, too, discussed with Higgins, as well as with other union representatives, the situation created by the Union's increase of its initiation fees. This occurred at a meeting held on or about February 24, 1966. Freund told the union representatives that he regarded the increase in initiation fees as both discriminatory and excessive, and that if they were not reduced ABC would file charges with the Board. Higgins then asked Freund not to do anything until April 1, indicating that there might be a reconsideration of the initiation fee schedule, and Freund agreed to defer action until the suggested date. On March 10, 1966, Freund received a letter from Higgins informing him that the Union's executive board had reconsidered the initiation fee schedule, and had come to the conclusion that they did not wish to change it. On March 22, Freund encountered Higgins at an arbitration proceeding in another matter, and the latter asked Freund to wait another week before going to the Board, since it was expected that the arbitrator's decision in the NBC arbitration might be handed down within a week and that the Union might reconsider the question of the initiation fees, depending on the verdict of the arbitrator. Freund agreed to the additional delay and on March 25, 1966, the arbitrator rendered his decision in the matter, upholding the position of NBC that it had not violated its contract with the Union in terminating some of the v.r. employees, and then rehiring them. Section 8(b)(5) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents: to require of employees covered by an agreement authorized under subsection (a)(3)6 the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected. It is evident that the Respondent had a discriminatory motive in increasing the initiation fees. There can be no other conclusion when the background of the Union's action is considered in relation to the scale of the increases and "the wages currently paid to the employees affected." In the case of NBC, it is established that, while the pay range of broadcast technicians is from $123 to $246, approximately 90 percent of the v.r. employees were employed at $130 a week. In the case of ABC, which maintained the same pay range for broadcast technicians, it is also established that most of the v.r. employees hired received from $130 to $140 a week. Since their employment is temporary, moreover, the v.r. employees cannot normally expect work of more than several months' duration. The impact upon them of an increase in initiation fees of more than threefold at the minimum and more than sixfold at the maximum hardly needs demonstration. The necessary result would be to confine vacation relief employment to broadcast technicians who were already members of the Union and who would not, therefore, be 6 This is the provision in the subsection of Section 8 which sanctions union -security agreements NEW YORK LOCAL 11, NABET required to pay the increased initiation fees. That this was the objective of the Union is established, moreover, not only by the background evidence, showing the existence of the controversy between the Companies and the Union concerning the vacation relief employees but also by direct evidence of the Union's discriminatory motive. This direct evidence consists of the bulletin of October 18, 1965, in which Higgins explained the basis for the increase in the initiation fees to the union members, and also of the uncontradicted evidence of Goldstein and Freund that Higgins himself connected the possibility of a reconsideration of the increase in initiation fees with the outcome of the arbitration. The attempt of Higgins to make light of the explanation in the bulletin as mere sales talk to his members can hardly be accepted, since the members acted on his explanation, and only his explanation is consistent with all his actions. The fact that the Union increased the initiation fees before the arbitrator had even rendered his decision is not a point in its favor. On the contrary, it shows that the Union was fashioning a method of dealing with the situation which would not be dependent on the decision of the arbitrator. In the light of the convincing evidence that this was the Union's intent, it is not possible to take seriously the further contentions of Higgins that an increase in the Union's initiation fees had been under consideration since 1959 because the Union could make ends meet and that the increases that were finally adopted in 1965 were intended to improve its services to its members and to provide some additional insurance benefits. The services at least had been provided for many years before 1965, and an enormous increase in initiation fees would hardly be necessary to improve them. That no increase in initiation fees had been adopted, although under consideration for 6 years, hardly bespeaks the urgency of improving either the services or the benefits. It is significant that Higgins failed to produce the Union's books to prove that it needed a large amount of additional money. In any event, as the Board observed in Television and Radio Broadcasting Studio Employees, Local 804, (Radio & Television Div. of Triangle Publications), 135 NLRB 632 at 637, "the union's financial problems may not be solved by imposition of a fee which is either discriminatory or excessive under Section 8(b)(5)." The increase in the Union's initiation fees was, moreover, not only discriminatory but excessive. In New York City, Chicago, and Los Angeles, the broadcast technicians, who are represented by locals of the International Brotherhood of Electrical Workers in these cities, and whose pay is approximately the same as that of the broadcast technicians employed by ABC and NBC, are charged initiation fees of $100 or $125. The NABET local that represents the broadcast technicians employed by NBC in Chicago charges an initiation fee of $25 when the weekly base salary of the applicant ranges from $119 to $239. The NABET local that represents the broadcast r I find it wholly unnecessary to determine whether I may consider the schedule of initiation fees contained in G.C Exhs 17 and 18 G C Exh 17 is a letter dated September 19, 1966, from the secretary of NABET Local 41 to a labor relations representative of NBC setting forth increases in initiation fees as of the date of the letter G C Exh 18 is a bulletin of NABET Local 53, dated April 18, 1966, setting forth an increase in initiation fees as of the date of the bulletin 8 As the Board said in Television and Radio Broadcasting Studio Employees, Local 804, supra at 636 "An increase in initiation fees from $50 to $500 is not insubstantial, and, to one seeking employment in the industry, may well be so staggering as 245 technicians employed by NBC in Los Angeles, and whose pay range is the same as in Chicago, charges an initiation fee of 10 percent of the monthly base salary, which would amount to approximately $50. These comparisons more than suffice to show how excessive the present initiation fees of Local 11 really are.7 Indeed, it is fair to say that any initiation fees adopted from discriminatory motives must in the nature of things be excessive. The discriminatory object can hardly be otherwise accomplished. It is also apparent that an increase in initiation fees of more than threefold at the mimimum and more than sixfold at the maximum must be excessive, at least presumptively. However, the Union produced no evidence to show that the increase in initiation fees was justified under all the circumstances.8 It also seems quite immaterial that there is no evidence that particular applicants for employment actually refused to accept employment because of the increase in the initiation fees, or that the Union attempted to get anyone discharged for failure to pay the increased initiation fee,9 or that the Union may have been willing to accept payment of initiation fees in installments, or that employees of NBC and ABC may work overtime, and thus earn pay in excess of their base salaries. The reasonableness of the initiation fees must be judged in terms of their possible rather than their actual effects, and in terms of the power which they gave the Union rather than in terms of the actual exercise of that power. Perhaps the most frivolous of all the contentions of counsel for the Respondent is their contention that it has not been shown that Local 11 has had a union-security agreement with the employers. While the master agreements in the present case were made with NABET rather than with Local 11, section 3.1(a) of the NABET constitution plainly provides that local unions shall insure "the enforcement of all agreements entered into between the International union and employers," and the record as a whole even more plainly indicates that all the provisions of the agreements were in fact enforced by the Respondent. IV. THE REMEDY Having found that the Respondent on December 15, 1965, adopted initiation fees which are discriminatory and excessive under all the circumstances, I shall recommend that the Respondent be required to cease and desist from requiring for initiation the payment of any fees that are discriminatory or excessive under all the circumstances. By way of affirmative relief, I shall also recommend that the Respondent be required to rescind its action of December 15, 1965, increasing its initiation fees, and to refund to all employees of the Employers involved in the present proceeding who are working in the classifications in which membership in the Respondent is required as a condition precedent to employment all sums paid by them to preclude acceptance of employment. Such an increase demands explanation to bar a presumption that it is not at least excessive " 9 This, in any event, would hardly have been possible, since both ABC and NBC refused to enforce the increased schedule of initiation fees It was held in Motion Picture Screen Cartoonists, Local 839 (Animated Film Producers Assn), 121 NLRB 1196, 1203, that the fact that a union "may not have attempted to require the payment of such a fee (i e. a discriminatory or excessive fee) on penalty of demand for discharge does not constitute a defense " 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as initiation fees in excess of $150. Such refunds shall be made within 20 days from the date of this Decision, and interest at the rate of 6 percent per annum from the date of payment of the initiation fee to the date of its refund shall be added to the amount refunded. CONCLUSIONS OF LAW 1. American Broadcasting Company, a division of American Broadcasting Companies, Inc., and National Broadcasting Company, Inc., are employers within the meaning of Section 2(2) of the Act, and each is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. New York Local 11, National Association of Broadcasting Employees and Technicians, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discountinuing its initiation fee of $150 on December 15, 1965, and by putting into effect on the same date a schedule of initiation fees as follows: Weekly Wages of Employees Initiation Fees Under $119 $150 $119 to $167.99 $500 $168 to $211.99 $750 $212 and over $1,000 the Respondent required the payment, as a condition precedent to becoming a member of its organization of a fee in an amount which was discriminatory and excessive. under all the circumstances, and thereby committed an unfair labor practice affecting commerce within the meaning of Section 8(b)(5) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from requiring the payment of initiation fees under the following schedule of initiation fees: Weekly Wages of Employees Initiation Fees Under $119 $150 $119 to $167.99 $500 $168 to $211.99 $750 $212 and over $1,000 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Rescind its action of December 15, 1965, increasing its initiation fees, and make the refunds described in the section of this Decision entitled "The Remedy" in the manner and to the extent set forth therein. (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all records pertinent to or convenient for a determination of the amounts so paid. (c) Post at its office and meeting places, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 2, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of the said notice to the Regional Director of Region 2, for posting, the Employers willing, at all locations within the territorial jurisdiction of the Respondent where notices to individuals employed by the Employers are customarily posted. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Decision, what steps the Respondent have been taken to comply herewith.'' 10 [In the event that this Recommended Order is 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 is 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 be substituted for the words "a Decision and Order "] " [In the event that this Recommended Order is 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 Respondent has taken to comply herewith APPENDIX NOTICE TO ALL MEMBERS OF NEW YORK LOCAL 11, NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO 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 require of employees working for the American Broadcasting Company, a Division of the American Broadcasting Companies, Inc., or for National Broadcasting Company, Inc., in the units covered by our collective-bargaining agreements with these Companies, under which membership in our organization is required as a condition of employment, the payment of an initiation fee in excess of $150. WE WILL NOT require of any such employees the payment of any initiation fee which is excessive or discriminatory under all circumstances. WE WILL refund to all such employees any amounts in excess of $150 paid to us as initiation fees or toward initiation fees on or since December 15, 1965, together with interest at the rate of 6 percent per annum from the date of payment to the date of the refund. NEW YORK LOCAL 11, NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO (Labor Organization) 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone PI 1-5500, Ext. 852.