Intl Alliance of Theatrical Stage Employees

552 INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, Local 640 (Associated Independent Theatre Company, Inc.) and Alfred Layne. Case 29-CB-391 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On June 30, 1969, Trial Examiner Arthur M. Gold- berg issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that certain affirmative action be taken. He also found that Respondent had not engaged in other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Trial Examin- er's Decision and a supporting brief; the General Counsel filed exceptions to the Trial Examiner's Deci- sion, a supporting brief, and a brief opposing excep- tions filed by the Respondent. 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The Board has con- sidered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner only to the extent consistent herewith. Based upon a charge filed on August 17, 1967, the original complaint in this case issued on October 17, 1967. The complaint alleged that pursuant to various collective-bargaining agreements between the Respondent Union and several employers, including Associated Independent Theatre Company, Inc., the Union, which is the bargaining representative of the motion picture projectionists employed by said employers, has the exclusive right to refer projection- ists for employment through its hiring hall procedures, and the employers are required to obtain all of their projectionists from said hiring hall. It was alleged that since on or about February 14, 1967, the Respond- ' The Respondent has requested oral argument The request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties ent discriminated against Alfred Layne by failing and refusing to place him on Respondent's permanent and temporary job referral lists, by refusing to accord Layne the seniority to which he is entitled, and by refusing to refer him for employment in accord with Respondent's exclusive referral arrangement, all because of his nonmembership in the Respondent Union and because of his membership in Local 306, IATSE, in violation of Section 8(b)(1)(A) and (2) of the Act. Respondent denied the allegations of the complaint and raised several affirmative defenses. On June 14, 1968, an amended complaint was issued, which, in addition to the allegations in the original complaint, added the allegation that since on or about February 14, 1967, the Union has required from Layne and other employees, as a prerequisite for referral for and retention of employment, the payment of "monies, including but not limited to, service fees, referral fees, and permit fees." This was also alleged to be violative of Section 8(b)(1)(A) and (2). Respondent, in answer to the amended complaint, again denied the material accusations of the complaint. Regarding the initiation fees, Respondent answered that members were required to pay initiation fees and dues, and that both members and nonmembers who obtained work through the hiring hall are assessed a percentage of gross earnings which is allocated to maintenance of the hiring hall and functions of the Union as a collective-bargaining agent. Thus, the complaint as amended alleged discnmina- tory application of the Respondent's seniority roster only with regard to Layne (and not simply on a negative basis-his nonmembership in Respondent- but also on an affirmative basis-his membership in a sister local). However, the case was litigated on the basis of whether the entire operation of Respondent's hiring hall discriminated against non- members of Respondent. As discussed in detail below, the Trial Examiner found that operation of the entire hiring hall was discriminatory, and also found that the hiring hall fees levied against all nonmembers were excessive and should be reimbursed in some part. 1. FACTS AS TO LAYNE Alfred Layne is a member of Local 306, IATSE, which has jurisdiction over motion picture projection- ists in New York City. He has been a member of that local since 1933 and has been a projectionist at the Victoria Theatre in New York City since at least 1948, a job which he continued to hold during all of the proceedings in the present case. Although a member of Local 306, Layne has neverthe- less also sought to become a member of Local 640, 185 NLRB No. 27 INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES IATSE, the Respondent in this case, which has juris- diction over projectionists in Nassau and Suffolk coun- ties (the counties composing Long Island and which adjoin New York City). The Respondent Union oper- ates a hiring hall through which it is the exclusive referral agent for most of the motion picture theatres within its jurisdiction. The date on which Layne first sought to become a member of Respondent is in dispute. Layne moved to Levittown (a town in Nassau County) in 1948, and he testifies that he had told Nagengast, now deceased but formerly Respondent's business agent, as early as 1949 that he was interested in steady work and membership in Respondent. However, the Trial Examiner does not credit Layne except where his testimony is corroborated by documentary evi- dence or admissions of adverse witnesses, and he finds that Layne did not seek membership in Respond- ent until April 6, 1963.1 On that date, Layne wrote to Respondent Union requesting permission to appear before its executive board. Following his appearance, on May 19, 1963, Layne received a letter from Respondent, stating that the executive board was denying his request for membership because it was of the opinion that "dual membership in adjoining projection locals could possibly be detrimental to the welfare of the members and/or Locals involved." Layne sporadically continued to request membership in Respondent and, as late as October 21, 1966, he wrote to Respondent asking to be considered. Despite Layne's failure to obtain membership in Respondent, he was given part-time work by that local within its jurisdiction as early as 1948. In May 1960, Layne was assigned by Respondent to a steady job at the Amity Theatre in South Farmingdale. Layne hired Feinberg, a Local 306 member, to split this job with him, and this arrangement lasted until Feinberg quit in 1963. In 1964, the owners of the Amity Theatre insisted that the projectionist at their theatre be a full-time projectionist, with a relief man present only on the regular projectionist's 1 day off each week Layne accepted these conditions and con- tinued to hold a full-time job both at the Amity Theatre and the Victoria. He was able to do this because the two schedules were generally different, and he arranged to have someone cover his job at the Victoria when he could not be there In January 1968, a fire at the Amity Theatre caused that theater to be closed for a period of time. As a result, Layne contacted Washburn, business agent for Local 640, seeking temporary employment. Wash- ' The General Counsel has excepted to the Trial Examiner's discrediting of Layne in this regard Careful consideration of the General Counsel's arguments leads us to conclude that the Trial Examiner 's determination should be adopted Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 553 burn gave Layne temporary jobs until the Amity Theatre was reopened on June 26, 1968, at which time Layne was able to resume working there. Throughout his residence in Long Island, Layne has retained his full-time position at the Victoria Theatre in New York City II. OPERATION OF THE HIRING HALL Before discussing the specifically alleged discrimina- tion against Layne, an examination of the operation of the hiring hall in its entirety, and of the Trial Examiner's finding of discrimination in such opera- tion, is necessary. This requires considration of the various lists which were maintained by Local 640 in the operation of the hiring hall. There is a dispute as to the maintenance and the use of these lists. A. Preferred Work Roster According to Washburn, he established a "Preferred Work Roster" when he became business agent in 1961. The preferred work roster lists projectionists working in the jurisdiction of Local 640 in order of seniority positions assigned to them by the Union. Except as later discussed, the roster has two purposes: it contains the listing of projectionists within the jurisdiction according to seniority assigned to them by the Union, and it constitutes the mailing list of persons to whom announcements of available full- time positions are sent In other words, by virtue of being on the roster, individuals will receive announcements of full-time vacancies; and if they bid on the vacancy, the individual with the greatest seniority, by virtue of his position on the roster, will be awarded the job. Washburn's testimony is somewhat uncertain as to how the list was initially complied, at one time stating that when he took over as business agent there was already in existence a list of approximately 105 persons, and another time stating that he may have complied the list from a collection of cards maintained by the Union, which cards only gave the names and initiation dates of members who are working fulltime in the jurisdiction. Thus, the manner in which the original seniority list of 1961 was compiled is unclear, and although an examination of the list suggests that those named were all union members and that they were listed in order of their dates of induction into the Union, there is no evidence that other than union members sought inclusion in the list, or that the individual's induction date into the Union did not also coincide with his beginning work date in the area. As to the group of persons who, between 1961 and 1966, were next added to the list, being given 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD numbers 106 to 159, Washburn stated at one point in his testimony that they were all members of Respondent when he placed them on the roster. This single piece of testimony is in direct conflict with all of Washburn's other testimony as to the basis for their positions on the list. Throughout his long appearance on the stand , Washburn testified repeated- ly that , after he took over in 1961 as business agent, persons were added to the roster as they requested to go on it, or as they requested to go to work. As the one point referred to above, however, the following exchange took place between Washburn and the General Counsel: Q. With the exception of Dan Lee Hinely, who is No. 135, all of the names from 106 through 159 are members of Local 640 and were members of Local 640 when their names were put on the preferred work roster by you, is that true? A. Yes, I believe they were. Apparently on the basis of this exchange and other evidence hereafter discussed , the Trial Examiner con- cluded that the names which Washburn added to the list between 1961 and 1966, and to which he assigned number 106 through 159, were, with the one exception of an admitted nonmember , Daniel Hinely , those of members in order of their initiation dates into Local 640. We are of the opinion that this selective choice of testimony is, on the whole record , insupportable. This single answer is contrary to the persistent thrust of Washburn's other testimony that an individual's placement on the list was governed by his requesting to be on the list or requesting to go to work. It does not seem likely that Washburn would have con- sciously given this incriminating answer, so much in contrast to his other testimony , at a point in the examination when he was under no particular stress. It would appear, rather , that Washburn may not have understood the question and was giving his opinion of how the original 1961 list was formulat- ed. For these reasons, we cannot agree with the Trial Examiner that this particular piece of testimony can be deemed an adverse admission by Washburn. As additional support for his conclusion that initia- tion into Respondent's ranks was the sole basis for positioning on the rosters, the Trial Examiner refers to one of three preferred work rosters in evidence (all of which are dated September 1, 1966, but none of which are completely identical), on which, next to all but one (Hinely) of the first 159 names, are dates which are typed , followed by dates which are penned . Respondent's counsel agreed that the penned dates signify initiation dates. According to Washburn, the typed dates refer to the date the employees asked to be put on the roster or go to work. Based upon the stipulation that the penned dates are initiation dates, and the single bit of Washburn's testimony, discussed above, as to when he placed persons on the list after 1961, the Trial Examiner concludes that through at least number 159 , which bears an initiation date of January 11, 1966, initiation dates determined placement on the preferred work roster. The fact is, however, that while it was stipulated that the penned dates were initiation dates, it was not stipulated that the names were listed as of those dates, rather than according to the typed dates, which are purportedly the dates on which individuals asked to go on the list or to go to work . The problem in determining which of the dates was the trigger for placing names on the list is that both the typed and the penned dates are, respectively , in chronological order, and it is therefore difficult to determine which date qualified a person to go on the list. The dubious support in the record for the Trial Examiner's interpretation of Washburn's testimony, and for the inference he chose to draw from the stipulation regarding the penned dates on the preferred work roster, casts doubt upon his finding that place- ment on the list was based only on membership in the Union , and that the list's use in the operation of the hiring hall was therefore discriminatory. As previously noted , position 135 on the roster is held by Hinely, concededly not a member of the Union at the time he was placed on the list in December 1961.' The General Counsel's representative offers no satisfactory reconciliation of this placement of a nonmember on the list with her theory that one had to be a member to be put on the roster. The Trial Examiner argues that the fact one nonmember was placed on the list does not change the pattern of 158 other listings. We do not agree with this assessment . In'addition, even prior to 1966 , the Union began mingling union and nonunion employees freely on the roster, as evidenced by the many names on the roster which, as of the hearing, had no penned dates indicating initiations and were not proved to be members of the Respondent. The Gene'.,al Counsel 's theory-that one had to be a member of `.ocal 640 in order to be placed on the preferred roster - is not supported by any oral testimony of members or nonmembers , except for whatever support may be derived from Layne's testimony, to 1-c discussed infra The General Counsel ' s representat.""e tries to make her case almost entirely from documents and examination of Washburn under Rule 43(b), Federal Rules of Civil Procedure No nonmember other than Layne was ' While Hmely was not a member in 1961, he was initiated into membership in 1968 INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 555 called by the General Counsel to testify that he was not given a position on the roster until he became a member, or that he had applied to go on the roster and was denied a position. The only other nonmember who testified was one Ringfield. On General Counsel Exhibit 43, the version of the preferred work roster which contains only typed dates next to the names, Ringfield's name appears as number 230 with a typed date of "I 1/ 13/67 " Ringfield testified that he is not a union member." From other evidence, it also appears that other nonmembers are on the roster in positions preceding Ringfield's. Thus, other than Layne, we have no firm evidence of any projectionists in the area who may have been the object of discrimination by Respondent. This is not to say that the rosters do not give rise to some palpable doubts about their legitimacy. The General Counsel raises question about the veracity of the typed dates on Respondent's rosters, which, as discussed above, allegedly refer to the date a person asked to be on the roster or asked to go to work. Paul Bader appears on the preferred work roster as number 183 with a typed date of "3/65." But Bader's employment application form is dated June 20, 1965, and his application for a regular job is dated August 2, 1965. He was initiated into the Union on October 4, 1966. George Quarituis, Jr., number 151, has a typed date of "3/63," yet he was in the Navy until November 14, 1963. His employ- ee application form is dated January 12, 1964, and he was initiated into the Union on January 11, 1966. C Orlando appears on one of the three lists as number 236, with the typed date of January 19, 1968, yet he does not appear on another of the lists even though the latter bears names with dates which are later than January 19, 1968. The General Counsel argues that Orlando, who was initiated into the Union on June 12, 1968, was slotted into the first roster referred to above other persons who were not union members. The record provides no complete answers to the questions raised by the General Counsel. Nowhere in the record is there a full explication of the clerical procedures involved in drawing up these lists or an explanation of the differences between them. Wash- burn's testimony indicates that his bookkeeping proce- dures were lax. The explanations for the discrepancies described could lie in mere clerical inadvertency or negligent recordkeeping. On the whole, we are not persuaded that these few instances are sufficient to prove that the lists were maintained on a members Rmgfield originally applied to the Union for a position in 1966, but did not become available for full-time work until 1967 At that time, he was placed on the roster only basis or were manipulated in order to favor members over nonmembers. B. Job Lists "A" and "C" Aside from the preferred work rosters, there are two other listings maintained by the Union which are allegedly used for the assigning of jobs. The first, Job List "A," was described by Washburn as being composed of persons who were either completely unemployed or were only employed part-time and who were desirous of full-time employment. Washburn testified that persons were placed upon this list upon their request and that the majority of persons on this list were not members of the Union or were not members when first on the list. According to Washburn, to appear on the "A" list, a person must have a preferred work roster number. Job list "C" is made up of persons seeking only part-time work at certain times, and contains names of union and nonunion persons. There apparently also was a job list "B" at one time, but the record is unclear as to its composition or use. There was a great deal of confusing testimony concerning the operation of these lists. As far as can be divined, Washburn testified that, as a matter of practice, temporary jobs were often assigned by him without going to the lists. Jobs were placed out for bid only when he decided that the bid proce- dure should be used. Washburn stated that when temporary oneshot jobs were assigned by him, he would first contact those on job list "A," which listed individuals looking for full-time or any part- time work. When he had a group of 1-day jobs which he could put together as a block, making a week's work, he would then send them out to be bid upon. Bids were sent to persons on all three lists. According to Washburn, persons on the preferred work roster had first choice of any such jobs that were bid upon. The General Counsel contends that job list "A" is spurious, having been made up only for purposes of this hearing in order to show the mingling and commingling of members and nonmembers. The Trial Examiner found it unnecessary to determine the validi- ty of job list "A," because he felt that the preferred work roster is the key to the operation of the hiring hall, since listing on job list "A" is conditioned on first securing a position on the preferred work roster. As to job list "C," the Trial Examiner notes that, for whatever value this list may have, Layne's name appears first on that list. We agree with the Trial Examiner that the nature of the evidence adduced as to job lists "A" and "C" is too ambiguous to lend support to the General Counsel's case. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. New Tentative Seniority Roster There is still another list. In September 1968, the Union issued a "New Tentative Seniority Roster," apparently in an effort to comply with a stipulation for settlement arrived at in an earlier proceeding before the Board. Position on the list was based on earnings and the number of calendar quarters an individual had worked in the jurisdiction since 1925. This roster was introduced by Respondent as part of its defense in an effort to show that it was currently operating under a valid seniority system. In making his finding that the previous seniority rosters were discriminatory, the Trial Examiner con- sidered the effect of this new roster. The Trial Examin- er found that by determining roster position for the "New Tentative Seniority Roster" on the basis of earnings from, and time worked on, jobs obtained through the hiring hall, including a period when the "discriminatory" preferred work roster controlled job assignments, the new roster perpetuates the bias against nonunion projectionists who could not, in the past, have bid for or attained steady work. The Trial Examiner thus holds that the new roster, based on such work history, does not purge the past discrimi- nation. Instead of the new roster, he orders, as a remedy for the overall discrimination he finds that the Union, in conjunction with the Regional Director for Region 29 and subject to his approval, should be required to revise the seniority roster used for job referral purposes to integrate Alfred Layne and others similarly circumstanced into a place on such list which will reflect their time of entry into employ- ment within the jurisdiction of the Union, taking into account their availability for employment since that time Since we do not adopt the Trial Examiner', conclu- sion that the General Counsel has established by a preponderance of the evidence that Respondent's operation of its hinng hall seniority list has discrimi- nated against nonmembers, we need not reach the issues raised by Respondent with regard to the remedy ordered by the Trial Examiner of his conclusions as to the validity of the "New Tentative Seniority Roster." D. Summary as to Overall Discrimination in the Hiring Hall The Trial Examiner found that the preferred work roster was operated in a discriminatory manner, based on his findings that positions on the list were based solely on initiation into the Union. As noted in the earlier discussion, we believe that this finding is based on two insupportable inferences drawn from the evi- dence. We find, accordingly, that it has not been satisfactorily established that initiation into Respond- ent Union was the key to obtaining a position on the preferred work roster, and we therefore reverse the finding of overall discrimination in operation of the hiring hall. III. DISCRIMINATION AS TO ALFRED LAYNE A. Significance of Requesting Membership in Local 640 We turn now to the specific question of the alleged discrimination against Alfred Layne. As noted previ- ously, starting in 1963 and as late as October 21, 1966, Alfred Layne wrote to Local 640 requesting "membership" in the local. In all of his inquiries, Layne requested "membership"; he never made partic- ular reference to a desire to be on any seniority lists, such as the preferred work roster There is no indication, however, that Layne had ever heard of such a roster until just before filing the charge in this case. Washburn testified that he did not put Layne on the preferred roster because Layne had never asked to be on the list. In spite of this testimony and the fact that Layne's letters had only sought "member- ship," the Trial Examiner found that Layne "sought listing" on the preferred work roster as early as 1963. The basis for the Trial Examiner's finding is twofold. One ground given by him is the theory that since only initiation into the Union would secure placement of an individual's name on the preferred work roster, until at least January 1966, application for membership must be considered the equivalent of application for a position on the preferred work roster. Since Layne had sought such membership since as early as April 6, 1963, when he first wrote to the Union's executive board, the Trial Examiner would consider that Layne made application for the preferred work roster as of that time. From this finding, the Trial Examiner concludes that Layne should have been placed on the roster as of 1963, and should have accumulated seniority starting from that date. This conclusion becomes important to a decision about whether Layne was discriminatorily denied a job within the Section 10(b) period, to be discussed infra. It may be questioned whether the Trial Examiner is correct in finding that the letters seeking "member- ship" were necessarily the equivalent of seeking a place on the preferred work roster. At the time Layne wrote the letters, he was working full time in the Union's jurisdiction (as well as in New York City). It may reasonably be argued that his requests for INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES "membership" in Local 640 did not convey the impres- sion that he wanted also to be placed on a seniority roster so that he might be considered for future jobs which might open up. Thus, it may be that Layne's proper seniority, against which to measure possible discrimination within the 10(b) period, should only be calculated from a time at which Layne had made it clear that he wanted to be on the Union's work roster. While placement on the roster may well have been Layne's purpose for seeking member- ship, he never expressly communicated this desire to the Union, at least until 1967 However, even accepting the Trial Examiner's conclusion, it would appear that no remediable showing of discrimination against Layne has been made out, as discussed below. B. Significance of Oral Requests The second ground relied on by the Trial Examiner for rejecting Washburn's explanation of why Layne was not put on the list is evidence relating to an occasion within the 10(b) period which shows that Layne did seek listing at the time on the preferred work roster. Washburn testified that men were placed on the preferred work roster during that period, and prior thereto, on the basis of nothing more formal than oral requests. The following evidence indicates that Layne did give a specific indication during the 10(b) period of his desire to be offered new jobs as they became available. On June 13, 1967, Layne wrote to Washburn stating that he had heard rumors that he was on the seniority list of Local 640. Washburn replied, in a letter dated June 28, 1967, that since there was presently pending before the National Labor Relations Board a case dealing with the nature and day-to-day operation of the seniority and job referral system, he could not answer that question. He also stated that "I assume that you are satisfied with working conditions at the Amity Theatre and that you do not seek any other part-time employment." On July 7, 1967, within the 10(b) period, Layne wrote to Washburn saying that he had always been interested in securing a better paying job than his current full-time job at the Amity Theatre and that during the past 7 years Washburn never notified him of a steady full- time job opening for which he could apply. Although Washburn thereafter, on September 27, began sending bid lists to Layne, he still did not put Layne on the Roster. The Trial Examiner reasons that if, as Washburn testified, oral requests by others were sufficient to place them on the preferred work roster, then the July 7, 1967, letter from Layne should have been sufficient to earn him a listing on the roster. He 557 concluded that the refusal to place Layne on the roster at that time and thereafter was a continuing effectuation of the Union's 1963 concern that placing him on the preferred work roster "could possibly be detrimental to the good and welfare of the members [640 and 306] involved." We agree that the July 7 letter was certainly equiva- lent to an oral request for placement, sufficient to warrant Layne's being placed on the preferred work roster. By stating a desire to be told about other jobs for which he could apply, Layne was requesting a place on that list. The failure of the Union to place Layne on the list was a departure from its normal practice testified to by Washburn. Since, how- ever, the Respondent was, at the time, unquestionably placing other nonmember applicants on the seniority list, we infer, as did the Trial Examiner, that Respond- ent's reason for discriminating against Layne was not the fact that he was not a member of Respondent, but rather the fact that he was a member of another local. Refusal to accord Layne a place on the seniority list for such a reason is violative of Section 8(b)(1)(A) and (2), and we so find. C. Remedy While finding that the Union thus acted discrimina- torily against Layne, we also conclude, as did the Trial Examiner, that Layne suffered no harm for which monetary remedial action should be ordered. The evidence does not show that there were any bids sent out to which Layne could lay claim, under any test of seniority, between February 14, 1967, the beginning of the 10(b) period, and September 27, 1967, when Layne received his first bid list from the Union. Thereafter, Layne received the bids that were mailed out, but the first one on which he submit- ted a bid was the Massapequa Drive-In job on July 29, 1968. This job was, however, awarded to Raymond Escorcia, who was on the preferred work roster, compiled by Washburn in 1961, on the basis of his initiation date of October 14, 1958. The Trial Examin- er found, as noted, that Layne should have been on the list with seniority dating from 1963; from this finding, he proceeded to find that, even if Layne had been put on the list at the "proper" time, he still would have postdated Escorcia's seniority by "almost 10 years" and his bid would have been rejected in favor of Escorcia's.s We agree with the Examiner's ultimate conclusion that Layne should not have prevailed over Escorcia ' It is not clear why the Trial Examiner stated that, given Layne's starting seniority date of 1963 and Escorcia's date of 1958, the former's seniority postdated the latter's by "almost 10 years " 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Massapequa job. The Union could have legiti- mately used, and apparently did use, a system in which it placed individuals on a referral list according to the date they went to work (after 1961) or requested to go on the list. Even if we equate a request for "membership" with a request for placement on the list (a conclusion we have found questionable, supra), Layne's first such request was in 1963, and he should have been placed on the list then, but, due to his membership in the other local, he was not so placed. There was, therefore, particularized discrimination against Layne, and he should be credited with seniority since 1963, for purposes of comparison with Escorcia. Since Layne's placement on the list on a legitimate basis-application for placement on the roster-would postdate Escorcia's seniority by 5 years, we agree with the Trial Examiner's conclusion that the discrimi- nation against Layne did not prejudice his chances for the Massapequa job. It should be noted that our finding of discrimination against Layne by Respondent does not necessarily mean that other nonunion individuals, who did not share Layne's spe- cial status as a member of Local 306, were discriminat- ed against generally, as the Trial Examiner found. It thus appears, as discussed above, that Layne was discriminated against because of his membership in Local 306 We shall therefore order that Respondent cease and desist from such unlawful discrimination. IV. LOCAL 640 ASSESSMENTS The amended complaint alleges that the Union violated Section 8(b)(1)(a) and (2) by charging moneys, including service fees, referral fees, and permit fees, to employees as a "condition of referral to employment and for continued employment." Local 640 requires that all projectionists, members and nonmembers , who obtain employment through its exclusive hiring hall must pay an assessment of 2 percent of their gross earnings from such employ- ment as a fee for use of the referral system. In addition , members pay an initiation fee of $300 and annual dues of $30. The Trial Examiner found that Layne and other nonmembers in fact were given work through the hiring hall during the Section 10(b) period, and he rejected the General Counsel 's primary request for reimbursement of all assessments collected from non- members. The Trial Examiner concluded , however, that existing law makes it a violation of Section 8(b)(1)(a) to require nonmembers to pay assessments in excess of costs attributable to the hiring hall and related collective bargaining , citing Local 138, Operat- ing Engineers v. N.L.R.B., 321 F.2d 130 (C.A. 2).6 ' This case involved two Board and two court decisions 139 NLRB 633, enfd 321 F 2d 130, 153 NLRB 1374, and 385 F 2d 874 He therefore recommended that, in accordance with Local 138, supra, the Union "reimburse each nonmem- ber who paid assessments during the 10(b) period a sum of money representing his pro rata share of the excess of assessments paid against total cost attrib- utable to hiring hall and collective bargaining expen- ses." He also would order that the Union make such a reimbursement to nonmembers each year in the future. At the hearing, the Respondent's accountant testi- fied concerning the Union's income from assessments and the expenses allocable to the maintenance of the hiring hall. Respondent asserts that it merely introduced such evidence, without being too precise in allocating expenses, for the purpose of showing a "reasonable" relationship between moneys collected from assessments and moneys expended on the hiring hall. These figures, discussed by the Trial Examiner and reproduced in Appendixes A and B of his Deci- sion, show that in 1967 the Union collected about $35,000 in assessments ($6,500 of it from nonmembers) and spent about $29,500 on maintenance of the hiring hall and related collective bargaining. In the first 9 months of 1968, the figures show that the Union collected approximately $29,000 in assessments ($5,500 from nonmembers) and spent about $26,000 allocated to the hiring hall. As noted, Respondent submits that the financial analysis which it introduced was merely supportive of its defense and was not intended to be a firm representation of the cost break- down. The Trial Examiner recognizes this latter asser- tion in his Decision, saying, "In dividing total expenses between the two areas of activity, [the Union accoun- tant] was more rigorous in allocating expenses to the Union as an institution than was the General Counsel in Local 138, supra." In Local 138, the Board had found blanket discrimi- nation in the operation of a hiring hall, for the use of which union men and nonmembers were required to pay $10 a month each. Of the $10 paid by each individual, $2 was remitted to the Union's International. The Board ordered reimbursement of all fees paid by nonunion men, as a remedy for the discriminatorily operated hiring hall. On review, the Second Circuit found some discrimination in run- ning the hall, but not to the extent found by the Board. The court agreed that the permit fees were excessive and were set at a rate which was an obvious effort to exact from nonmembers the amounts paid by members, which the Union "could not do in the guise of charging for its services as an employment agency." The court remanded the case to the Board for consideration of the question of "what proportion of the fees which were paid were reasonably related to the services provided by the Union, having in INTL. ALLIANCE OF THEATRICAL STAGE EMPLOYEES mind the cost to the union of providing such services. Any excess over that amount could properly be ordered returned to the men who paid it." The court also cautioned the Board to keep in mind its "rejection of the Board's finding of blanket discrimination in determining whether such an order is warranted." It may be noted that, in the case presently before the Board, we are not finding blanket or even substan- tial discrimination. On remand, the Board adopted the Trial Examiner's conclusion, reached after a supplemental hearing, that nonmembers should be refunded $3.50 of every $10 paid over a 5-year period (the Union had stopped collecting such fees at the end of that period). 153 NLRB 1376. In its review of the supplemental pro- ceeding, the court enforced the Board's order, 385 F.2d 874. In answer to the Union 's argument that the reim- bursement order was in the nature of a penalty, the court made the following statement: Since the union was committing an unfair labor practice to the extent it charged the permit men a fee not reasonably related to the cost of provid- ing the job referral service, the Board was amply justified in ordering the union to reimburse the permit men in the amount of fees in excess of the value of the hiring hall services. Such an order clearly meets the requirement that a reimbursement order be remedial. After careful consideration of the issue, we are disposed to dismiss the allegation relating to assess- ment of referral fees. In our view, the breakdown of income and expenses in the record does not demon- strate that the assessments were not, in terms of the test laid down by the Second Circuit, "reasonably related to the services provided by the union," or that the assessments were "in excess of the value of the hiring hall services ." In 1967, using the Union accountant's concededly less-than -rigorous figures, the Union spent at least $29,500 for hiring hall and related collective bargaining (and $12,000 for "institu- tional expenses"). In that year, the Union collected $35,000 from hiring hall assessments of members and nonmembers , $28,500 of which was from members and $6,500 from nonmembers. The Union, in other words, on the less-than-precise figures before us, spent at least five-sixths of its hiring hall assessments for the costs of the hall. Furthermore , if it had to return the other one-sixth of the assessments ($5,500), it would have to reimburse nonmembers for only some- what more than one-fifth of that amount ($1,100), since assessments were collected from nonmembers and members at a ratio of $6,500/$28,500. The only other figures available related to just the first 9 months 559 of 1968 , showing total costs allocable to the hiring hall of $26,000 and total assessments received of about $29,000. In Local 138, supra, there was a finding of a substantial amount of discrimination and a clear showing that, over a 5-year period, the Union consistently collected $3.50 per month more (out of $10) than it needed for running the hiring hall. In the present case , we make no finding of substantial discrimination, and it may well be that, over a more representative period of years, the assessments and their proper allocations would be equalized. In the circumstances of this case , we are of the opinion that the evidence does not support a finding that the assessment system was violative of the Act, and we shall dismiss the relevant complaint allegations. IV. THE REMEDY Having found that the Respondent has engaged in unlawful conduct in violation of Section 8(b)(1)(A) and (2) of the Act, we shall order that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. The record and briefs indicate that, contrary to its apparently nondiscriminatory past practice of accord- ing employees seniority from the date of their applica- tion to be on the referral roster, or the date after 1961 on which they began working in the Union's jurisdiction , the Union has turned to another nondis- crimatory method of measuring seniority-accumulat- ed employment experience within the Union's jurisdic- tion. In complying with our order as to Layne, the Union , of course, will have to afford Layne nondiscri- minatory treatment under any such newly adopted seniority system. CONCLUSIONS OF LAW 1. Associated Independent Theatre Company, Inc., is an employer engaged in commerce within the mean- ing of the Act. 2. International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, Local 640, and International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada , AFL-CIO, Local 306, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating against Alfred Layne by failing to place him on the preferred work roster, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not engaged in other unfair labor practices as alleged in the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board hereby orders that the Respondent , Inter- national Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, Local 640, its officers, agents, and representatives , shall: 1. Cease and desist from- (a) Refusing or failing to refer Alfred Layne, or any other employee, for employment to Associated Independent Theatre Company, Inc., or affiliate there- of, or any other employer subject to the Board's jurisdiction , because Layne or such other employee is a member of some other union or local union. (b) Placing or maintaining Alfred Layne, or any other employee, with regard to employment with Associated Independent Theatre Company, Inc., or affiliate thereof, or any other employer subject to the Board's jurisdiction , at the bottom or at any other place other than a proper and nondiscriminatory place upon said Respondent 's permanent, temporary, or other job referral, job priority, or job seniority lists or rosters, because said Layne, or such other employee, is a member of some other union or local union; or otherwise in any manner failing to accord Layne or other employees job referral rights fully equal or equivalent to those of members of Respond- ent, in accordance with the requirements of the Act, including Section 8(b)(2) thereof. (c) Causing or attempting to cause Associated Inde- pendent Theatre Company, Inc., or affiliate thereof, or any other employer subject to the Board 's jurisdic- tion, to discriminate against Alfred Layne, or any other employee, in regard to his hire or tenure of employment, or any other terms or conditions of employment, in violation of Section 8(a)(3) of the Act. (d) In any other manner restraining or coercing Alfred Layne or any other employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that the rights of employees 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, as amend- ed. 2. Take the following affirmative action found neces- sary to effectuate the policies of the Act: (a) Integrate Alfred Layne into his proper place on the seniority rosters used for job referral purposes by the Respondent Union according to the appropriate nondiscriminatory policies used by Respondent for compiling such rosters. (b) Post in conspicuous places at its offices at 22 Pine Street, Freeport, Long Island, New York, and at all other places where notices to members and applicants for employment through use of its facilities are customarily posted, copies of the attached notice marked "Appendix C." Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by a representative of Respondent Union, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members and applicants for employment are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of the aforesaid notice to the Regional Director for Region 29 for posting by Associated Independent Theatre Company, Inc., if it is willing, in the places where notices to employees are customarily posted Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after having been signed by Respondent's representative, be forthwith returned to the Regional Director for such posting by Associat- ed Independent Theatre Company, Inc. (d) Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found herein. MEMBER JENKINS, dissenting: My colleagues reject the Trial Examiner's well- reasoned, factually supported conclusion that Respondent violated the Act in its operation of a job referral system based on membership in the Union. I disagree.' The Trial Examiner found that job referrals were made from Respondent's "Preferred Work Roster" and that, with one exception, the first 159 names thereon appeared in the order of the applicant's accept- ance into membership by Respondent. In addition to the apparently union-oriented structure of the ros- ter, the Trial Examiner bottomed his finding of dis- ' While I concur in my colleagues ' dismissal of the complaint with respect to the collection of allegedly unlawful assessments for the use of Respondent's hiring hall , I do not rely on their rejection of the Trial Examiner's finding of overall discrimination in the operation of the hiring hall INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES criminatlon on a testimonial admission by Washburn that, except for nonmember Hinely, all names placed on the roster from 1961 to 1966 were members of Respondent when added to the list.' In rejecting these findings, my colleagues make the surprising assertion that Washburn's admission is "contrary to the persistent thrust of [his] other testimony" and claim further that there is "dubious support in the record for the Trial Examiner's interpre- tation of Washburn's testimony" as constituting an admission. Neither position is tenable. An admission, by its very nature, requires no further support.' Indeed, it may stand as the only credible evidence in an otherwise contrived recitation of deeds or events. It is obvious that the Trial Examiner so viewed Washburn's testimony for he discredited the latter's testimony except where corroborated by "doc- umentary evidence or admissions of adverse witness- es."" In these circumstances, it is even more remarka- ble how my colleagues can overcome Washburn's testimonial admission by the use of "other" but clearly discredited testimony from the same source, one the Trial Examiner deemed to be untrustworthy. More- over, such a ruling is patently prejudicial to the General Counsel, for, contrary to the intimations of my colleagues, the General Counsel may well have adduced other evidence with respect to the discriminatory structuring of the preferred work roster but for Washburn's admission. I also disagree with my colleagues to the extent they question the Trial Examiner's equating Layne's request for membership to a request to be placed on the preferred work list. I seriously doubt that their position is based on a correct appraisal of the law dealing with the Respondent's duty of fair repre- sentation. To charge nonmembers with knowledge of obscure or technical internal rules and procedures for gaining positions on Respondent's referral list and thereby relieve the Union of its legal obligations is not only an unrealistic appraisal of the facts, but makes that duty an empty shell. As I agree with and adopt the Trial Examiner's findings with respect to the discriminatory nature of Respondent's preferred work roster and the remedi- al inadequacy of the new tentative seniority roster, which is based on work history achieved in operation of the former, I also agree with and would adopt his recommended remedy in this regard." Washburn not only established the Roster but has been in charge of its operation since its creation in 1961 ' Admissions by an untruthful witness are entitled to considerable weight, perhaps at least as much as those of a truthful witness ° See TXD, fn 14 and accompanying text See im dissent in Houttrnt Maritime 4csouation Inc 168 NLRB No 83 561 APPENDIX C NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL MEMBERS OF, and APPLICANTS FOR EMPLOYMENT THROUGH. LOCAL 640, I.A.T.S.E , AFL-CIO, WE WILL NOT refuse to place Alfred Layne or any other employee on the job referral list because of his membership in another local of this Union and will not otherwise discriminate against any employee because of his nonmember- ship in this Union. WE WILL place Alfred Layne on the job referral list in his appropriate position according to cur- rent nondiscriminatory practices. LOCAL 640, I.A.T.S.E., AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. TRIAL EXAMINER'S DECISION ARTHUR M GOLDBERG, Trial Examiner Based upon a charge filed on August 14, 1967, by Alfred Layne, an individual, the amended complaint herein issued on June 14, 1968,' alleging that International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada , AFL-CIO, Local 640 (herein called Local 640, the Respondent , or the Union) had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (herein called the Act). The complaint alleged that pursuant to various collective- bargaining agreements between the Union and employers, including Associated Independent Theatre Company, Inc., the Union as the collective-bargaining representative of motion picture projectionists has the exclusive right to refer projectionists for employment through its hiring hall ' The original complaint was issued on October 17, 1967 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedures and the employers are required to obtain all of their projectionists from said hiring hall It was alleged that since on or about February 14, 1967, 6 months prior to the filing and service of the charge herein, the Union has failed and refused to place Layne's name on its perma- nent and temporary job referral lists and has failed and refused to accord to Layne the seniority to which he is entitled. Further, since the aforementioned date, the Union has failed and refused to permit Layne to bid for permanent jobs and to refer him to employment whether permanent, temporary, or part time in accordance with the procedures of its exclusive hiring hall arrangements. The Union is alleged to have engaged in this conduct because Layne is not a member of Local 640 but is, instead, a member of Local 306, IATSE. The complaint further alleged that since February 14, 1967, the Union "has required as a prerequisite for referral to employment and for continued employment of the Charging Party and other employees the payment to Respondent of moneys including but not limited to, service fees, referral fees and permit fees " And that since that date Layne and other employees have been required to pay these moneys to the Union as a condition of referral to employment and for continued employment. The Respondent Union filed its answer to the amended complaint on June 19, 1968 As to the material allegations of the complaint, the answer denied all allegations pertaining to the placement of Layne on its referral lists or to its alleged failure to refer him to employment In reference to the collection of moneys in connection with referral to employment or continued employment of projectionists, the answer denied "the implication" that the charge in this case in any manner referred to these practices; denied that the money required to be paid was anything but a uniform assessment on gross wages required of all members and nonmembers who obtained work through the hiring hall; and, denied that any moneys other than this uniformly required assessment was required as a prerequisite for refer- ral to employment or continued employment. Further, the answer set forth seven affirmative defenses 1. Application for placement on the permanent job roster is a condition precedent to being referred by the Union through the hiring hall procedures for permanent employ- ment by Associated Independent Theatre and other employ- ers with whom the Union has a collective-bargaining agree- ment Layne never applied for a listing of the Union's permanent job seniority roster. 2 Before April 3, 1964, Layne refused to accept full- time employment with any employer under contract with the Union In March 1964 Associated Independent Theatre demanded that Layne either work a full-time schedule or leave his job with them. This demand was communicated to Layne who agreed in writing to accept full-time employ- ment effective in April 1964. By accepting full-time employ- ment Layne became eligible for a listing on the permanent job seniority roster but at no time has he applied for such a listing. As these events took place more than 6 months before the filing of the charge herein this proceeding is barred by the time limitations of Section 10(b) of the Act. 3 In a prior proceeding, Case 29-CB-240, the Union entered into a stipulation of settlement with the Regional Director and Charging Party therein, Frank Magnetta, providing a remedy for the procedures and policies relating to the Union's hiring hall and referral rosters alleged in the instant amended complaint to be violative of the Act Accordingly, to minimize litigation cost, the instant matter should be treated as an aspect of compliance with the settlement in Case 29-CB-240 4. The allegations of the amended complaint pertaining to the Union's hiring hall and referral lists are, to all intents and purposes, the same as those in the original complaint In its answer to the original complawt the Union asked that those issues be treated as part of the compliance with the settlement in the earlier case. Thereafter a stipulation providing for referral of these issues to compli- ance in Case 29-CB-240 was drafted. Although there was agreement in principle upon the proposed stipulation, the Regional Director failed to submit the stipulation to the Union's counsel for execution. So as to minimize litigation cost, the issues relating to the hiring hall, job referral lists, and job referrals should be treated in the manner set forth in the proposed stipulation. 5. The allegations of the amended complaint pertaining to the levying of service fees, referral fees, and permit fees for use of the hiring hall and as a condition for referral to employment and for continued employment bear no relation to the alleged unfair labor practices set forth in the underlying charge herein. No amended charge or other charge has been filed relative to its allegation of the amended complaint. Accordingly, inclusion of these allegations in the amended complaint violates Section 10(b) of the Act. 6. The Union requires members to pay dues and initiation fees All who obtain work through the hiring hall pay an assessment computed as a percentage of gross earnings. The Union's income from dues and initiation fees has been equal to or greater than its expenses related to its status as an organization. The income from assessments on gross earnings had been allocated to the cost of maintain- ing the hiring hall and to other functions of the Union as a collective-bargaining agent. Accordingly, there was no violation of the Act when the Union required Layne to pay assessments levied on gross earnings derived from employment obtained through the Union's hiring hall. 7. The complaint fails to state facts sufficient to constitute a violation of the Act by the Union During the hearing Respondent amended its answer to state two additional affirmative defenses 8. That for at least 6 weeks prior to filing the charge herein, the Charging Party and the Regional Office were engaged in collaboration to entrap the Union into the possible commission of an unfair labor practice and to conduct an investigation of the Union's activities without any charge having been filed against it. These acts go beyond authorized prefiling assistance, violate the Board's Rules and Regulations and Section 10 of the Act, constitute a denial of due processes and improper solicitation of the charge by a Board agent. INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 9 The General Counsel's acts of improper solicitation were committed not only prior to the filing of the charge but continued during the hearing and constitute a calculated endeavor to frustrate the Respondent's good-faith efforts to comply with a Board Order and consent decree entered in earlier litigation. By virtue of this conduct and of the manner of the conduct of the earlier NLRB litigation and of the present case, it is manifest that the General Counsel is employing the processes of the Act in an improper manner in that it is seeking to coerce a settlement "in the nature of collapse by the maintenance of litigation in such a manner as calculatedly to ruin a small union such as the respondent here." Respondent asked that the complaint be dismissed as to those allegations of the amended complaint pertaining to assessments and that the aspects of the complaint relating to the hiring hall and referral lists be added to the compliance proceedings in Case 29-CB-240 The hearing in the instant proceeding commenced in Brooklyn, New York, on November 20, 1968, and concluded on February 3, 1969, after 12 days of hearing. All parties participated at the hearing and were afforded full opportuni- ty to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. The record was closed by order on March 5, 1969, after extensions granted to permit the parties to submit compilations and stipulations of facts. Briefs were filed by the Respondent Union and General Counsel. Upon the entire record,' my observation of the witnesses and their demeanor, and my reading of the briefs, I make the following FINDINGS OF FACT I. JURISDICTION Associated Independent Theatre Company, Inc., is a buying, booking, bookkeeping, and management supervision company affiliated with 14 other theatre corporations. It ' On or about March 6, 1969, counsel for the Respondent Union filed a motion to correct transcript of the hearing , and, on May 15, 1969, I issued an Order to Show Cause why the transcript should not be corrected in specified respects, some part but not all of which corrections were contemplated by the Respondent 's motion Responses were received from General Counsel and the Respondent. In addition Respondent filed a Rejoinder to General Counsel's Response After due consideration of said Responses and the Rejoinder, an Order Correcting Transcript and granting Respondent's Motion of March 6, 1969, issued on June 3, 1969 Said Order was received into evidence as Trial Examiner's Exhibit 1 Pursuant to leave granted , stipulations of fact were submitted by the parties after the close of the hearing Their Stipulation dated February 7, 1969, covering submission of a 6-page document marked "CG Exhibit 38" is hereby marked Trial Examiner's Exhibit 2 Their Stipulation dated February 7, 1969, covering submission of a 2-page document listing checks drawn on the Reserve Checking Account of Local 640 is hereby marked Trial Examiner's Exhibit 3 Their Stipulation dated February 27, 1969, listing the :lames of members of Local 640 initiated during the years 1967 and 1968 is hereby marked "Trial Examiner's Exhibit 4 " As marked, Trial Examiner's Exhibits 2, 3, and 4 are received in evidence and made part of the record herein 563 was stipulated that Associated Independent Theatre Compa- ny, Inc , and the affiliated theatres including the Amity Theatre in South Farmingdale, New York (herein called AIT), are a single employer. The office of AIT and of the affiliated theatres is maintained at Oceanside, New York. During the year ending September 30, 1968, the 14 theatres affiliated with AIT had a combined gross income of approximately $3 million During that same year film rental of approximately $ 1 million was paid by AIT on behalf of its affiliated theatres for motion pictures made, in whole or in part, in States other than the State of New York In part these films were leased directly from distributors located outside the State of New York and the films involved were shipped directly from points outside the State of New York to theatres within the State of New York where they were exhibited and then returned to States outside the State of New York The rental for such films during the year ending September 30, 1968, exceeded $50,000. AIT meets the inflow requirements of the Board's jurisdictional standards and it will effectuate the policies of the Act to assert jurisdiction herein . Combined Century Theatres, Inc., 120 NLRB 1379 All but one of the 14 theatres affiliated with AIT are located in Nassau and Suffolk Counties , New York. The answer, as amended during the hearing, herein admits that Local 640 represents all projectionists employed by AIT except those employed outside Nassau and Suffolk Counties, which counties constitute the geographic jurisdiction of Local 640. AIT has maintained a collective-bargaining rela- tionship with Local 640 since 1958 or 1959. The collective- bargaining agreement provides that the Union shall have the exclusive right to refer projectionists through its hiring hall procedures and that AIT is required to abtam all of its projectionists from Local 640's hiring hall. Further, counsel for the Respondent Union was "perfectly willing to stipulate in behalf of the union that as a matter of practice AIT and its affiliated theatres will, when they need a projectionist, call upon the union because that is the only source of such individuals that is known in the area." AIT last utilized Respondent's hiring hall proce- dures to obtain the services of a projectionist some 2 months before commencement of the instant hearing AIT is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and meets the Board's standards for asserting jurisdiction II. THE LABOR ORGANIZATIONS INVOLVED International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, Local 640 and International Alli- ance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, AFL-CIO, Local 306 (herein called Local 306), are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICES A. Alfred Layne 1. Layne's work history Layne, a motion picture projectionist since 1926 and a member of Local 306 since 1933, moved with his family in 1948 to Levittown in Nassau County. Layne was then employed as a full-time projectionist at the Gaity Theatre in New York City, a position he retains to this day.' As his New York City job required attendance on only 4 days out of each 10 day cycle, Layne contacted William Nagengast, business agent of Local 640, seeking employment in Nassau and Suffolk Counties, the jurisdiction of that Union . Nagengast arranged for Layne to work with him at the Valley Stream Theatre and thereafter referred Layne to part-time jobs . At times these referrals gave Layne work for all of his 6 free days, at other times not Layne testified that other than a 3-month stint to fill in for a man off sick, the job referrals were mostly from day to day . These assignments were made by telephone calls from Nagengast. Layne testified that in 1948 he earned approximately $1,350 working in Local 640's jurisdiction This figure was corroborated by tax withholding statements introduced by General Counsel. For the years which followed Layne testified that he earned from work in Nassau and Suffolk approximately $2,500 in 1949; over $3,000 in 1950; between $3,500 and $4,000 in 1951 , and, that from 1952 until 1960 his earnings from Nagengast 's referrals stabilized at about $5,000 During this entire period Layne was obligated to pay an assessment to the Union amounting to 2 percent of his gross earnings on jobs obtained through the hiring hall Union records examined during the hearing disclosed that for the period January 1949 through February 1950, 14 months, Layne paid assessments totaling $10 76, repre- senting gross earnings of $538 for that period For the 14 months from December 1956 through January 1958, encompassing the entire year 1957, the Union received from Layne a total of $56 22 in assessments , which would represent gross earnings of $2,811. I conclude that Layne either overstated his earnings in his testimony herein or underpaid assessments due to the Union . No tax withholding statements were offered to corroborate Layne's asserted earnings from 1949 through 1959. 2. Layne and Local 640 Layne testified that beginning in 1949 he sought steady work in Nassau and Suffolk Counties and membership in Local 640. At that time, Layne stated, he told Nagengast that he wanted to become a member of Local 640 and work only part time in New York City to protect his pension rights there. Layne claims that Nagengast replied that he would see what he could do about the request but always avoided the issue of a steady job for Layne. It was Layne's testimony that 2 or 3 times a year thereafter ' The theatre has since been renamed the Victoria he raised with Nagengast his request for membership in Local 640 but that the Union 's business agent would put him off. Nagengast died in January 1961. Layne's testimony stands uncontradicted and uncorroborated on the record. Charles Washburn , Nagengast's stepson, succeeded to the position of business agent. On April 6, 1963, Layne wrote to the Respondent Union. requesting permission to appear before its executive board. Following his appearance at such a meeting on May 7, 1963, Layne received a letter dated May 19, 1963, from Walter Lord, the Union's then recording secretary , stating that his request for membership had been denied as, The Board is of the opinion that dual membership in adjoining projection Locals could possibly be detri- mental to the good and welfare of the members and/ or the Locals involved. Layne wrote to Local 640 on October 23, 1963, stating that he had been advised by the assistant International president of IATSE to contact the Union on the question of membership. Layne pointed out that he had been a full-time projectionist at the Amity Theatre since May 1960, and again asked that he be considered for membership. A month later Lord replied stating that no action on Layne's request was contemplated at that time. In August 1964, Layne wrote to the Union pointing out that over a year had passed since his appearance before the executive board and asked for reconsideration of his application for membership . No reply was made to this letter. Again, in August 1965, Layne wrote to the Respondent Union, noting that he had not received a reply to his last letter and asked to be informed concerning his "standing in regard to acquiring membership." Lord replied for the Union in September, enclosing an application for member- ship and asked that Layne return the application together with $150, half of the Union's initiation fee, by October 8. Thereafter, on October 14, 1965, Lord advised Layne that his application had been rejected at a membership meeting of the Union. At the same time Lord returned Layne's check for $150. Finally as to membership, on October 21, 1966, Layne again wrote to Local 640 asking to be considered for membership, citing the fact that he had worked as a projec- tionist in the Union 's jurisdiction for the past 18 years. 3. The Amity Theatre Layne testified that in May 1960 Nagengast called and asked Layne to take the Amity Theatre as a steady assign- ment . The Amity Theatre is located in South Farmingdale, close by to Massapequa where Layne had moved in 1954. From the time that Layne started this steady job in May 1960 until the Amity Theatre was shut down by a fire in January 1968, Layne did not request any temporary assignments from Local 640. Layne's arrangement with Nagengast was for him to secure the help needed to keep the job going 7 days a week. For this purpose Layne hired Milton Feinberg, a member of Local 306 who lived not too far from the theatre Feinberg covered the projection booth the days INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES that Layne was not there and they split the salary from the Amity Theatre Feinberg left the job in 1963. On March 20, 1964, Business Agent Washburn received a letter from an official of AIT complaining about the failure to assign a full-time projectionist to the Amity Theatre with provision for a relief man only on the regular projectionist's 1 day off each week. AIT insisted that the regular arrangement be installed at the Amity Theatre. Washburn first called Layne and then wrote to him transmit- ting AIT's complaint and insisting that Layne either accept a regular 6-day per week assignment at the Amity Theatre or leave the job Layne accepted the new conditions and stayed at the Amity Theatre where he works to this day. As evidenced by tax withholding statements introduced as exhibits, Layne's earnings at the Amity Theatre rose steadily from 1960, making a sharp rise in 1964 when he accepted the job on a full-time basis ° Except on weekends and in the summer the Amity Theatre has only one shift per day, from 7 p.m. to midnight On Saturday and Sunday and during the summer months the theatre is open from 1 p in. until 11 p.m or midnight This constitutes two shifts At all times that he was employed at the Amity Theatre, Layne was working at the Victoria Theatre in New York City. Since February 1967, Layne has been scheduled to work 4 days out of every 8 at the Victoria Theatre, working 2 day shifts and 2 nights in each 4 day turn When working the day shift Layne is able to work at both theatres on the same day. However, when scheduled to work the night shift at the Victoria Theatre (except on Thursday which is his day off on Long Island), Layne must arrange for a substitute to work that shift. This he does without notifying the theatre manage- ment. Layne testified that at all times he worked his regular turn at the Amity Theatre. In January 1968 a fire at the Amity Theatre resulted in Layne being temporarily out of work The theatre reopened on June 26 and Layne returned to his regular full-time schedule there. During this layoff Layne wrote to Local 640 Business Agent Washburn asking for the procedure in securing temporary work until the Amity Theatre reopened. Washburn replied, advising Layne to fill out an "Application For Placement on Temporary Job List A," enclosing a copy of the application. Thereafter, although he did not place Layne's name on Job List A, Washburn referred Layne to temporary jobs during the period the Amity Theatre was closed for repairs. As noted, except for this period in 1968 when the theatre was closed because of fire, Layne did not ask for any temporary assignments from Local 640.5 B. The Union's Hiring Hall and Job Referral Lists 1. Operation of the hiring hall In the operation of its exclusive hiring hall and job referral procedures Local 640 not only exercises complete • Layne's wages from the Amity Theatre by year were 1960, $3,603, 1961, $4,365; 1962, $4,373, 1963, $5,440; 1964, $8,089, 1965, $10,073, 1966, $10,790, and 1967, $10,700 ' The foregoing account of Layne's employment at the Amity Theatre is based on his and Washburn's testimony which do not conflict 565 control over job assignments, but as well, it unilaterally determines when and if a job shall be put out for bid. Layne's job at the Amity Theatre was assigned to him by Nagengast without any bid and it has never been offered for bid under the hiring hall procedures Similarly, the Thursday relief stint at the Amity Theatre was assigned by Washburn without going through the bidding process. Washburn testified that relief jobs are combined to provide a week's work and put out for bid together with full- time openings. On the matter of job referrals, the Union's constitution and bylaws, as adopted in October 1964, provides: Article II Seniority Rules SECTION 5. 1. Members whose names appear on the Charter in the order of their sequence. 2 Members from date of obligation, or when more than one man has been obligated at the same time, the date of application shall previal, or as the member's name appears in the Recording Secretary's membership book. 3. All steady work shall be given out by Seniority. 4. Emergency and extra work shall be distributed equitably by the Business Representative Any differ- ences arising shall be settled by the Executive Board. 5 If for any reason, depletion of manpower is neces- sary in any theatre, member having the longest period of employment in the projection room shall be retained 6. If two (2) or more members started their employ- ment the same day Seniority of membership shall pre- vail. 7 Bids for jobs shall be accepted only from those members who have served a minimum of six months as full time gainfully employed motion picture projec- tionists in our jurisdictional area-immediately preced- ing the availability of said jobs Charles Washburn, the Union's busines agent, administers tht. hiring hall. His duties as specified in the Constitution and Bylaws provide, in pertinent part: Article VI Duties of Officers Business Representative Section 7 It shall be the duty of the Business Representative . [to] use all legal means to secure employment for men of this Union where their services are necessary. The Business Representative shall put men to work in order of their seniority in this Union, excepting Road Men. . . He shall strive to distribute all extra work among the members equitably... A miasma of testimony and exhibits was developed at the hearing concerning the Union's operation of the hiring hall and more particularly concerning the various list of 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD projectionists purportedly compiled and utilized by the Union for the assignment of jobs through the hiring hall. There are three lists in current use for job referrals through the hiring hall, the Preferred Work Roster, Job List "A," and Temporary Job List "C " The Preferred Work Roster6 lists projectionists working in the jurisdiction of Local 640 in the order of seniority positions assigned to them by the Union. Washburn testified and exhibits confirmed that when jobs are put out to bid, the seniority number assigned on the Preferred Work Roster determines who shall receive the job. "Job List `A,"' as described by Washburn, is a roster of men who do not have full-time jobs and are either partially or fully unemployed. Next to each name on Job List "A" appears that individual's seniority number taken from the Preferred Work Roster. Only men listed on the Preferred Work Roster can be placed on Job List "A " Additional information appears on this roster stating each individual's availability to work, in some cases listing the days of the week on which the man can work, in others that the listee is in military service, and as to others that their availability is unknown. Washburn testified that men listed on Job List "A" have first preference for any work. Temporary Job List "C"was described by Washburn as a roster of part-time workers Two such lists are in evidence, one dated October 1, 1966, the other November 1, 1966, Layne's name heads both lists. Washburn testified that before calling persons on Job List "C" to assign jobs he first calls the Preferred Work Roster and the "A" list. In his words, the "C" list comes "the last of anything " Only if a man on the "C" list lived close to a job which had to be covered would he receive any type of priority for the job assignment. The record contains four Preferred Work Rosters, three bearing the date September 1, 1966, and none alike. In addition there are two different Job List "A" and two of Temporary Job List "C." Potential listees on the various referral rosters achieved their positions during his term as business agent, Washburn testified, by applying either in writing or by word of mouth. The record contains five different application forms used by Local 640. One form is a printed "Employees Application Form" prepared and sold by a law form printer. The others are mimeographed forms variously headed, "Applica- tion for A Regular Job," "Application for Placement on Local 640 Seniority Roster," "Application for Placement on Temporary Job List A,` and "Application For Place- ment on Temporary Job List B (For Employment in Nassau and Suffolk County)." (Emphasis supplied.)' Also referred to in the record as the "Permanent Roster" and the "Permanent Seniority Roster " This form carries the note, "You do not qualify for placement on the temporary job list A unless you are on the seniority roster and are totally unemployed " This is the form Layne completed at Washburn's direction on January 30, 1968 This application form carries the notation, "Only applicants who are listed on the seniority roster and are currently employed may file for placement on this list " The copy of this form in evidence was completed by an applicant in January 1964 General Counsel contends that Job List "A" is spurious, manufactured for the purpose of this proceeding to prove by the commingling of members and nonmembers thereon that the referral system is nondiscriminatory. I do not deem it necessary for the purpose of decision herein to reach that issue Determination of the discriminatory or nondiscriminatory nature of the Preferred Work Roster is the touchstone of those aspects of the complaint dealing with the Union's exclusive hiring hall As to Temporary Job List "C," for whatever value to a projectionist position thereon may yield, Layne's name appears first Listing on Job List "A" is conditioned on first securing a position on the Preferred Work Roster Washburn so testified and the fact that Layne could not achieve a spot on the "A" list in 1968 after the Amity Theatre fire, although he filled out an "A" list application sent to him by Washburn, is explained by his failure to possess a Preferred Work Roster seniority number. Accordingly, since jobs put out for bid are assigned on the basis of the relative Preferred Work Roster seniority standing of those who bid, findings on the complaint allegation relating to Layne's opportunity to bid for jobs through the hiring hall as well as that concerning his actual placement on the referral lists, will be controlled, in whole or in part, by the evidence adduced about the Preferred Work Roster. 2. The Preferred Work Roster The evidence relating to the Preferred Work Roster con- sists almost entirely of Washburn's testimony and documents in the record, including the four rosters.' Washburn testified that when he took over as business agent in 1961 the listings on whatever work roster existed was based solely upon initiation dates into Local 640 Washburn testified at one point that at the time he became business agent there was an established list which he continued, adding names to the end as men applied for work or to go on the list. At a different point Washburn testified that when he took over there was a wooden box containing cards listing names and addresses of all union and nonunion men, whether they were working or ready to work or part-time workers, and, using these cards, Washburn worked with the Union's then president and financial secretary to establish a roster based on union seniority records. In any event at no point did Washburn state other than that the first approximately 100 names on the Preferred Work Roster are ranked solely on the basis of their initiation date into the Union In one form or another those names constituted the Union's preferred work roster when Wash- burn became business agent. As to how he added new names to the Preferred Work Roster, Washburn again related varying procedures He first testified that new names were added to the bottom of the list as men applied to him for work or to go ' In addition Arthur Ringfield, a nonmember of Local 640, who is listed on the current Preferred Work Roster, testified about his work history as a projectionist in Local 640's jurisdiction However, his testimony does not go to the issue of how the Preferred Work Roster (and the method and history of its compilation), affect Layne and his right to bid on jobs INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES on the list. At another point Washburn stated that the list he took over in February or March 1961 ran through number 105, Francis Bader, Jr, who had an initiation date of September 10, 1960 (The Preferred Work Roster of April 1, 1961, in evidence as an exhibit, lists 111 names, the earliest with a date of September 29, 1926, and the last, that of William Conway, with a date of November 12, 1958. Francis Bader, Jr., does not appear on the April 1, 1961, roster) Washburn testified that the names which he added to the list and assigned numbers 106 through 159, were, with one exception, those of members in order of their initiation into Local 640 On one of the Preferred Work Rosters in evidence, penned in next to all names running through number 159 and next to a considerable number of other names thereafter, are dates which Respond- ent's counsel agreed were union initiation dates Position number 159 on this Preferred Work Roster carries the initiation date of January 11, 1966 Based upon this stipula- tion and upon the particular version in Washburn's testimo- ny which it corroborates, I find that at least until January 11, 1966, all names on the Preferred Work Roster were placed there as a result of initiation into Local 640 and that only by achieving membership could a projectionist be listed on that roster.10 Beginning with number 106 on the several Preferred Work Rosters dated September 1, 1966, typed figures repre- senting a month and a year follow the name of the listed projectionist. In his testimony Washburn first stated that this date represented the time the man started to work. Subsequently, Washburn testified that he could not remem- ber whether that date represented when the man started to work or when he went on the Preferred Work Roster. Finally, Washburn begged the issue by declaring that it could be the work starting date for one man and the date of placement on the Preferred Work Roster for another However, based on Respondent's records placed in evidence it is clear that through at least number 159 (and of the next 7 names, 6 carry an initiation date of October 4, 1966) the initiation date determined placement on the Pre- ferred Work Roster. As the initiation date in all cases vary from the typed month and year which follows the name, the latter dates, as Washburn first testified, must be the dates on which the individual first went to work." 3. The Massapequa Drive-In job On July 29, 1968, Layne received from the Union a bid form which included an opening at the Massapequa 10 That one nonmember managed to achieve a listing on the Preferred Work Roster does not change the pattern of 158 other listings " Even this conclusion cannot be invariably true Paul Bader is number 183 on the Preferred Work Roster He was initiated into the Union on October 4, 1966 Bader's "Employees Application Form" is dated June 20, 1965 He filled out an "Application for Regular Job" on August 2, 1965 Yet the month and date following Bader's name on the Preferred Work Roster is "3/65 " George Quarituis, Jr , is number 151 on the Preferred Work Roster He was initiated into Local 640 on January 11, 1966 Quantuis ' "Employee Application Form" is dated January 12, 1964 His "Application For Placement on Temporary Job List 'B,"' which carries the notation "Mem- bers Son," is undated The month and year following Quarituis' name on the Preferred Work Roster is "3/63 " Yet, Quarituis was in the Navy from October 12, 1960, until November 14, 1963 567 Drive-In Theatre, located about half a mile from his home and close to the Long Island Rail Road Prior to this Layne had received other invitations to bid, but this was the first bid he submitted because of the location of the theatre, the fact that projectionists at drive-in theatres work only at night which dovetailed with his job at the Victoria Theatre in New York, and because drive-in theatres general- ly pay a higher rate than ordinary theatres. Layne was interested only in this job and would not have taken another position paying the same salary scale 5 or 10 miles from his home Some 30 or 40 days later the job was awarded to Raymond Escorcia who was listed number 72 on the Preferred Work Roster and who had been initiated into Local 640 on October 14, 1958 Escorcia had been on the initial Preferred Work Roster compiled by Washburn in 1961 solely on the basis of union initiation date. The positions on the roster first made by Washburn at that time continued on all Preferred Work Rosters used for bid purposes until the New Tentative Seniority Roster was first utilized in October 1968.12 Thus, as Washburn admitted, Escorcia received this job by virtue of the Preferred Work Roster position he had been given solely because of his initiation into Local 640. In any event, Layne could not have been awarded this job or any job for which he might submit a bid because he had no seniority number on the Preferred Work Roster. Washburn asserted that Layne had never requested a number on the Preferred Work Roster I find this claim to be specious on two counts First, until at least January 1966, date of initiation determined place on the Preferred Work Roster and in 158 out of 159 listings membership in Local 640 was a condition precedent to a position on the roster. Application for membership thus was the only road to a place on the Preferred Work Roster On May 7, 1963, Layne appeared before the Union's executive board requesting membership in Local 640. Thus application was denied because it "could possibly be detrimental to the good and welfare of the members and/or the Locals involved." Again on October 23, 1963, in August 1964, and August 1965, and finally on October 21, 1966, Layne asked to be considered for membership in the Union and his requests were denied As application for membership was equal to application for listing on the Preferred Work Roster, it cannot be said that during the years 1963 through 1966 Layne was not consistently seeking a number of the Preferred Work Roster However, I reject Layne's claim of having applied for membership in the years of Nagengast's incumbency as union business agent The sole support for this assertion is Layne's own testimony of conversations with a deceased person." Based on my observation of Layne while testifying I do not credit him unless he is corroborated by documentary evidence or admissions of adverse witnesses 14 My reserva- " See sec III, B, 4, "The New Tentative Seniority Roster," infra " Cf Calandra Photo, Inc, 151 NLRB 660, 669 , fn 23, Chun King Sales, Inc, 126 NLRB 851, 864-865 , Sam Wallick, d/b/a Wallick and Schwalm Corp, 95 NLRB 1262 , 1263, enfd 198 F 2d 477, 483 (CA 3) " I view Washburn 's testimony in the same way 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions about Layne's credibility are buttressed by the inconsis- tency between his claimed earnings and the assessments he paid to the Union . Moreover, Layne demonstrated an ability to preserve evidence favorable to him (his tax with- holding statements of 1948 and those for the years following his employment at the Amity Theatre and the correspond- ence pertaining to his efforts to secure membership in the Union in 1963 and the years which followed). The contrast between the record of union rejection Layne built in 1963 and in the years which followed with his unsupported work concerning his alleged overtures to Nagengast between 1948 and 1960 raises further questions about his unsupported testimony." The second basis upon which I reject Washburn 's claim that Layne never sought listing on the Preferred Work Roster arises from events occurring within the 10(b) period.16 Washburn testified that men were placed on the Preferred Work Roster within the 10(b) period on the basis of oral requests only Five men listed on Temporary Job List "C" were transferred to the Preferred Work Roster within that period and Washburn testified that their requests could have been oral. Charles Orlando went on the Preferred Work Roster in January 1968 and again Washburn acknowl- edged that the request for listing may have been oral. In any event Washburn did not insist that one of the many application forms be utilized. On July 7, 1967, well within the 10(b) period, Layne unequivocally stated in writing to Washburn I have always been interested in securing a better paying job with better working conditions . . . you never notified me of a steady full timejob opening for which I could apply. On September 27, 1967, the Union sent Layne a bid list, the first he ever received . Although this was an empty gesture because without a seniority number on the Preferred Work Roster his bids would not be honored, it in no way militates against a finding that Washburn recognized Layne's interest in permanent job openings . If oral requests by others were enough to place them on the Preferred Work Roster, certainly this written notice by Layne should have been sufficient to earn him a listing on the roster. I conclude that Layne was denied a place on the Preferred Work Roster in continuing effectuation of the Union's concern that his membership and/or listing on the roster "could possibly be detrimental to the good and welfare of the members [of Local 640] and/or the Locals [640 and 306] involved "" However, although I find that the Union had unlawfully refused to place Layne's name on its job referral lists " These efforts by Layne to secure membership and a place on the Preferred Work Roster antedated the 6-month period preceding the filing of the charge herein " ° Sec 10(b) of the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 US C, Sei. 160(h)) provides in pertinent part no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made Letter dated May 19, 1963, from the Union's recording secretary to Layne and to accord to him his proper seniority, I do not find that this discrimination tainted the award of the Massapequa Drive-In job to Escorcia rather than to Layne. Based upon my findings above, I conclude that Layne first sought membership in the Union and a listing on the Preferred Work Roster in 1963. Although the Union's refusal to grant him membership with concomitant listing on the Preferred Work Roster was discriminatory, under the rules uniformly applied his seniority on the roster could only run from that time. Thus, even absent this discrimination in 1963 Layne's listing on the Preferred Work Roster would have postdated Escorcia's seniority by almost 10 years and his bid would have been rejected in the normal course of events. Accordingly, since Layne testified that his interest in bidding was limited to the Massapequa Drive-In job and to no other open position, I shall recom- mend dismissal of the complaint allegation that the Union failed and refused to permit Layne to bid for jobs under the hiring hall procedures. 4 The New Tentative Seniority Roster For purposes of assignment of jobs put out for bid in October 1968, the Union utilized the seniority positions on its New Tentative Seniority Roster. This roster, compiled during the latter part of 1967 and 1968, was presented to Nassau and Suffolk projectionist under cover of a letter and memorandum from the Union's attorney on September 27, 1968 Pursuant to what it deemed to be its obligations to comply with the Board's Decision and Order in Case 29-CB-240,18 the Union embarked on an ambitious program to compile a completely new referral roster, free of any favoritism toward union members If only because of Respondent's Third and Fourth Affirmative Defenses which urge referral of the instant matter, insofar as the allegations pertain to the hiring hall and referral list, to the compliance aspects of Case 29-CB-240, some examination must be given here to that new Tentative Roster.1° Robert Kranzler, the Union's accountant, credibly testi- fied that after ascertaining the name of every projectionist employed in Nassau and Suffolk Counties as of a certain date in 1967, questionnaires were prepared and mailed asking for earnings from work in Local 640's jurisdiction from 1925 to date. Where the projectionist was unable to recall the desired information he was asked to grant permission for the Union to secure the necessary data from the Social Security Administration. Follow-up ques- tionnaires were mailed to those who did not respond Where no reply was received, information as to an individual's work history and earnings was solicited from the officers of Local 640 and members of long standing. In the early part of 1968 Kranzler met with Lord, the Union's financial secretary, Pierre Jelis, a past president and longtime member of the Union, and the Union's attorney in an attempt to fill in incomplete questionnaires. The questionnaire requested earnings information of the basis of calendar " Unpublished " There is no indication in the record that Regional Office personnel responsible for compliance with Board orders in any way participated in the asserted compliance with Case 29-CB-240 INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 569 quarters and position on the new seniority roster was deter- mined by the number of calendar quarters awarded to each man, with starting date in the industry utilized only to break ties should they arise The task was not an easy one because earnings had to be checked against the pay scale in effect at each theatre at any particular time to determine whether the prerequisite number of weeks to secure credit for the quarter had been worked by the projectionist involved Kranzler testified that credit was to be awarded for each quarter in which a man had worked 3 or 4 weeks as determined from his earnings. After the returned questionnaires had been placed in a first, tentative order, Kranzler turned the entire study over to the Union's attorney and his connection with the project ended Walter Lord, the Union's financial secretary, testified that where questionnaires were not complete he attempted to fill in the missing data rom information he obtained from union records, both those that he maintained and those turned over to him by his predecessor. Layne did not return a questionnaire to the Union. In Laynes's case Lord completed a questionnaire giving Layne credit for 14 calendar quarters Lord testified that the criteria for awarding quarters which he applied, claiming to follow instructions from Kranzler, was employment for a minimum of 6 or 7 weeks in the 13 and earnings of $1,000. Working from assessments paid on gross earnings, Lord attempted to compute the gross earnings. Without attempting an exhaustive analysis of the New Tentative Seniority Roster, it is readily apparent that in Layne's case the award of 14 quarters was incorrect From 1961 on, Layne earned over $4,000 per annum,20 working steadily at the Amity Theatre Putting aside 1968 when the theatre was closed because of fire, Layne's earnings for the years 1961 through 1967 should have yielded to him a credit of 28 quarters.21 But aside from errors in compiling data for individuals, the New Tentative Seniority Roster carries its own fatal infirmity which precludes it from furnishing satisfactory compliance with the remedial order I shall recommend to cure the discriminatory nature of the Union's referral rosters. By determining roster position on the basis of earnings from or time worked on jobs obtained through the hiring hall in which the discriminatory Preferred Work Roster controlled job assignments, the new roster perpetu- ates the bias against nonunion projectionists who could not bid for or attain steady work Thus, a member initiated into the Union in 1955 and on the Preferred Work Roster from that time had an absolute preference for work and earnings over a nonunion projectionist working in Nassau or Suffolk since 1950 but on Temporary Job List "C" and standing last in line when jobs were handed out. It stands to reason that the member could more easily have attained the $1,000 of earnings or 6-7 weeks of work that Lord looked for in crediting calendar quarters for position on the new roster See in 4, supra " There is no suggestion that an understatement by Layne of assessments due to the Union dunng that period would have prevented such a computation by Lord Thus, its basic assumptions preclude the New Tentative Seniority Roster from serving as compliance with a directive to establish a nondiscriminatory referral roster. Accordingly, determinations by the Union's unilaterally selected umpire as to proper placing of individuals on the new list on the basis of those unacceptable criteria are irrelevant to the instant proceeding." C. Local 640 Assessments At all times material herein the Union has required that all projectionists (members and nonmembers) obtaining employment through its exclusive hiring hall pay an assess- ment equal to 2 percent of gross earnings from such employ- ment as a fee for use of the referral system In evidence is a notice from the Union to nonmembers, entitled. NOTICE TO ALL NON-MEMBERS SUBJECT. HIRING HALL AND REGISTRATION FEE Terms and Conditions of Registration Fees for Non- Members This notice stated that effective April 1, 1963, a nonmem- ber wishing "to register or maintain his registration for employment at the Local 640, ITASE Union Hiring Hall" was required to pay to the Union 2 percent of gross wages received from jobs which was referred to as "a registration fee." The notice explains that "[t]his fee is solely intended to cover the non-member's pro rata share of the Union's cost in operating and maintaining its Hiring Hall for the benefit and convenience of all persons who seek jobs with Local 640 contracted employers " The notice goes on to detail the time and method of payment, that such registration fees are not refundable, and that the Union makes no guarantees as to "either the length of employment or future employment to non-members paying the registration fee any more than they can make similar guarantees to members paying dues, a substantial portion of which (at least equal to the registration fee) is necessarily allocated to the ( )st of operating and maintaining the Hiring Hall's faci ',ities and services for the benefit of all persons who seek employment with Local 640 contracted employers." In fact, members not only pay the same 2 percent assess- ment as do nonmembers, but also pay annual dues of $30 and an initiation fee of $300. General Counsel seeks a remedy requiring the Union to refund all assessments paid by Layne and others similarly situated during the 10(b) period because they were denied the use of the hiring hall In any event, General Counsel urges the Union should be required to refund to nonmembers any excess in assessment collected beyond their pro rata " Under these circumstances it is unnecessary to consider the fairness or regularity of the hearings before the Union's umpire or whether the Union's creation of the umpire position to resolve protests against individual roster placement established an arbitration procedure to which the Board may properly defer Jos Schhtz Brewing Company, 175 NLRB No 23, and cases cited in in 3 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD share of the costs of operating the hiring hall Respondent contends that the hiring hall was nondiscriminatory and that the assessments were properly levied I reject General Counsel's plea for reimbursement of all assessments collected from nonmembers during the 10(b) period. While I have found that the procedures of the hiring hall discriminated against Layne and nonmembers by barring them from bidding for steady jobs put out to bid, the evidence established that Layne and other mem- bers obtained work through the hall. Indeed, Layne was referred by the Union to steady, full-time work at the Amity Theatre and when the theatre was closed by fire was referred to other part-time jobs by Washburn. The very nature of the assessment, a percentage of wages earned from hiring hall job referrals, precludes a finding of blanket discrimination against nonmembers in the operation of the hiring hall Only to the extent that a nonmember earns wages from employment derived from the hiring hall is he required to pay the assessment levied to finance its operations Accordingly, in these circumstances, I deem an order requiring reimbursement of all assessments levied on nonmembers to be unwarranted. "However, requiring nonmembers to pay an unreasonably high amount for the use of the facilities operated by a union . infringes the right of employees, guaranteed by Section 7, to refrain from assisting labor organizations " Local 138, International Union of Operating Engineers [Nassau and Suffold Contractors Assn ] v N L R B, 321 F.2d 130, 139 (C A. 2) Kranzler, the Union's independ- ent accountant, prepared schedules for 1967 and the first 9 months of 1968 summarizing total union expenditures for those periods and allocating those expenses between the cost of collective bargaining and hiring hall and charges incurred by the Union as an institution.21 Under the rule of Local 138, supra, nonmembers utilizing the hiring hall can be required to help defray only those expenses attributa- ble to the hiring hall and collective bargaining In dividing total expenses between the two areas of activity, Kranzler was more rigorous in allocating expenses to the Union as an institution than was the General Counsel in Local 138, supra.2a Accordingly, I accept Kranzler's figures for the purpose of determining whether assessments collected from nonmembers "were reasonably related to the value of the services provided by the union " Local 138, supra, p. 136. Kranzler's figures disclose total union expenses in 1967 of $41,369 Of that total, $29,549 was allocated to Collective Bargaining and the Hiring Hall and the balance, $11,820, is attributed to maintaining the Union as an institution.25 In that same period, the Union callected from members and nonmembers, assessments totaling $35,052 Members paid $28,543 in assessments and nonmembers contributed $6,509 The figures for the first 9 months of 1968 again show a surplus after subtracting costs allocable to the ' See schedules set forth in Appendixes A and B attached " See Trial Examiner Reel's analysis and the supporting schedules in J J Hagerty, Inc, 153 NLRB 1375, 1379-87 " The fact that Kranzler omitted certain institutional costs from the computation does not affect the ultimate result, as the controlling figures are those for operating the hiring hall and collective bargaining and the assessment collected Hiring Hall and Collective Bargaining ($26,077) from the total assessments received ($28,989, $23,425 from members and $5,564 from nonmembers). Under the rule of J. J. Hagerty, Inc, supra, enfd. sub nom N L R. B. v. Local 138, International Union of Operating Engineers, 385 F 2d 874 (C.A. 2), I shall recommend that the Union reimburse each nonmember who paid assessments during the 10(b) period a sum of money representing his pro rata share of the excess of assessments paid against total cost attributa- ble to hiring hall and collective-bargaining expenses 26 With his analysis of union expenses Kranzler prepared three alternative bases for justifying the collection from nonmembers of assessments in excess of the costs of operat- ing the hiring hall and conducting collective bargaining. The first two such alternative justifications are computed on the basis of allocating those costs equally to each individ- ual, member or nonmember, who in anyway utilized the hiring hall during the period in question This approach ignores benefits derived and, as Kranzler conceded, the assumptions on which such allocations are based are dam- aged if some of the projectionists using the hall were denied equal service. In view of the discrimination practiced against nonmembers in bidding for steady work through the hall any attempted justification for assessments in excess of properly allocated expenses based on equality of burden must fail The third alternative sought to demonstrate that the income from dues and initiations were approximately suffi- cient to cover the Union's institutional expenses. Therefore, the argument goes, the excess in assessments collected over hiring hall expenses was not used to subsidize the Union itself and did not impinge on the right of nonmembers to refrain from assisting a labor organization Whether true or not,27 the fact remains that the excess assessments paid by nonmembers remain in the Union's control, the money is not required for operation of the hiring hall 16 Pursuant to my ruling made during the hearing certain offers of proof by General Counsel were submitted in writing after the close of hearing All such offers are rejected for the reasons stated below Offer 1-The proof offered related to excerpts from Washburn's testimo- ny in Case 29-CB-240 That testimony was used in this proceeding only to test Washburn's credibility The Offer of Proof is rejected as such evidence is cumulative since Washburn's testimony carried its own death wound Offer 2-General Counsel offered evidence to prove that Job List A was compiled in a manner different from that claimed by Washburn I have found that Job List A (and how it was compiled) does not control determination of violation in this case Accordingly, Offer 2 is rejected as irrelevant Offers 3 and 4-The evidence in these Offers of Proof pertains to dealings of Local 640 with members of the so-called "Empire" group Evidence as to Empire men is beyond the scope of the pleadings in this case, and, as with Offers 7 and 8-relating to Frank Magnetta, the offers are rejected as immaterial and irrelevant and beyond the scope of the pleadings Offer 5-This offer of proof sought to show Local 640's control over jobs put out to bid Because this control was admitted by Washburn, Offer 5 is rejected as the evidence here offered is cumulative Offer 6-Here General Counsel offered to prove the existence of certain of Local 640's assets This offer is rejected because in determining the legality of its assessments, evidence as to Local 640's assets is immaterial " At this point the omission of certain union institutional costs from the study makes the computations unreliable and leaves the argument without support INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES and may be used by the Union for whatever other purposes it sees fit, a decision in which the nonmembers may not participate Finally, Respondent seeks dismissal of the complaint allegations relating to the hiring hall assessments on the claim that these allegations "bear no relation to the alleged unfair labor practices described in the . charge." The charge, which alleged violations of Section 8(b)(1)(A) and (2) of the Act, stated as the basis of the charge that Since on or about March 19, 1967, the above named labor organization by its officers, agents and representa- tives, has discriminated against Alfred Layne, an employee of A.I T. Theatres, with regard to placement on the Union's permanent seniority list and with regard to his vacation pay and schedule because of his non- membership in the above mentioned labor organization By these and other acts the above mentioned labor organization has restrained and coerced, and continues to restrain and coerce members and other employees in the exercise of their rights guaranteed by Section 7 of the Act. Without belaboring the point it is clear that a charge of discrimination "with regard to placement on the Union's permanent seniority list" is sufficiently related to assessments levied for job referrals to support complaint allegations pertaining to those assessments Lubank Co, 175 NLRB No 36 28 TV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with AIT's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and " During the hearing Respondent added affirmative defenses alleging that counsel for General Counsel and Layne had collaborated to entrap the Union and that there had been improper prefiling assistance and improper solicitation of a charge by a Board agent Additionally, the litigation was asserted to have been conducted in an improper manner in an effort to force the Union to agree to settle the case by way of "collapse" so as to avoid financial ruin Layne testified to a meeting with counsel for General Counsel some time before he filed the charge when he visited the Regional Office seeking information Layne's visit was unsolicited and unannounced At her request Layne informed General Counsel of the events to that point in time and she explained the 6-month limitation in Sec 10(b) of the Act Although Layne may have stated his intention to write to the Union about pension benefits, he was not advised to write any letters to the Union In addition to his visit to the Board's Regional Office, Layne had approached the New York Civil Liberties Union and the New York State Commission on Human Rights After his visit Layne wrote one letter to counsel for General Counsel advising her of certain correspondence he had had with the Union and expressing his opinion about the Union's actions and motives Thereafter, Layne filed the charge, wrote a detailed letter to the Regional Office explaining the basis of the charge, and gave an affidavit in support of his allegations Based on these facts, I find that counsel for the General Counsel acted well within the limits of prefiling assistance spelled out in Sec 10012 of the National Labor Relations Board Field Manual, July 1967 As to the conduct of the litigation , the very nature of the evidence adduced extended the time of hearing and the difficulty of obtaining racords under Respondent's sole control did not ease the situation 571 commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union operated its exclusive hiring hall so as to favor union members in bids for steady work and required nonmembers to pay excessive assessments on wages earned from jobs obtained through the hiring hall, I shall recommend that the Union be ordered to cease and desist therefrom and that it be required to take certain affirmative action designed to effec- tuate the purposes of the Act The offending aspect of the hiring hall operation is that of the seniority roster So long as job assignments are made on the basis of a seniority roster which directly or indirectly favors union members over nonmembers, the vice continues Any system of placement which gives credit for service based upon earnings from jobs within the jurisdic- tion of the Union or any other measure of time worked, would merely perpetuate the discrimination practiced Accordingly, I shall recommend that the Union, in conjunc- tion with the Regional Director for Region 29 and subject to his approval, be required to revise the seniority roster used for job referral purposes to integrate Alfred Layne and others similarly circumstanced into a place on such list which will reflect their time of entry into employment within the jurisdiction of the Union, taking into account their availability for employment since that time. To remedy the Union's collection from nonmembers of excessive assessments on salaries earned from jobs obtained through the hiring hall, I shall recommend that the Union be ordered to refund to nonmembers their pro rata share of the excess of assessments paid against the total costs attributable to operation of the hiring hall and the conduct of collective bargaining underlying the hall and the contract conditions of the jobs covered. To avoid unnecessary cost to the Union 29 I shall recommend that such reimbursement be made annually, 60 days after the books have been audited and allocations made between expenses of the Union as an entity and those of the hiring hall and collective bargaining.30 On the basis of the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Associated Independent Theatre Company, Inc, is an employer engaged in commerce within the meaning of the Act. 2. International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, Local 640, and International Alli- " Accountant Kranzler testified that the Union's books are audited once each year 10 In the event such an annual audit and allocation of expenses should disclose that the costs of the hiring hall and collective bargaining exceeded the total of assessments received, this Recommended Order should not preclude the Union from assessing a supplementary pro rata levy on the wages of nonmembers earned during that period 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance of Theatrical Stage Employees and Motion Picture 4. The aforesaid unfair labor practices affect commerce Machine Operators of the United States and Canada, AFL- within the meaning of Section 2(6) and (7) of the Act CIO, Local 306, are labor organizations within the meaning 5. Respondent has not engaged in other unfair labor of Section 2(5) of the Act. practices as alleged in the complaint. 3. By engaging in the conduct described in section III, above Respondent Union has engaged in and is engaging [Recommended Order omitted from publication.] in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. APPENDIX A LOCAL 640, IATSE GENERAL AND ADMINISTRATIVE EXPENSES-1967 ALLOCATED TO Gen. and Adm. Total Collective Bargaining Union and Hiring Hall Salanes Bus. Rep. 12375 12375 Walter Lord 4200 3150 1050 Andrew Marghn 900 675 225 Henry Keiper 825 825 Office 1228 1228 Amts pd to or for 1270 1270 officers-lost time Officers expenses 2780 2502 278 Payroll taxes 803 722 81 Welfare Fund & Ret. Fund 1186 928 258 Tel & Ans & tracing service 3210 3210 Auditing 1200 600 600 Office rent 1296 1296 Hall rental & meet- ing expenses 854 854 Sta., prtg., postage 994 895 99 & office supplies Office equipment 122 110 12 Typing & clerical 1106 1106 service Cleaning, mainten- 583 525 58 ance & electric Insurance 341 227 114 Floral Wreaths & sick 369 369 com. Other committees 95 95 Life ins. prem. 356 356 Convention expenses 379 379 Contributions 224 224 Annual party 919 919 Bank chgs 16 16 Souvenir journals & 78 78 misc. TOTAL G. & A. 37709 29549 8160 PER CAPITA EXP. 4610 Less cost of 200 stamps purchased 12/67 for 1/68 950 3660 3660 TOTAL G. & A. 41369 29549 11820 AND PER CAP. INTL ALLIANCE OF THEATRICAL STAGE EMPLOYEES APPENDIX B LOCAL 640, IATSE GENERAL AND ADMINISTRATIVE EXPENSES AND PER CAPITA TAXES (January 1-September 30, 1968) 573 ALLOCATED TO Total Collective Bargaining Union and Hiring Hall Salaries: Bus. Rep 10500 10500 Walter Lord 3150 2363 787 (Tres.) Andrew Marglin (Pres.) 875 657 218 Henry Keiper 675 675 Office secretary 2962 2962 Amounts paid to or 788 788 for officers Officers expenses 2177 1938 239 Payroll taxes 789 710 79 Welfare & Retire- 1 161 787 374 ment Fund Payments Telephone & service 2711 2711 Auditing 900 450 450 Office rent 1722 1722 Hall rental & 513 513 meeting expense Stationery, print- 754 679 75 ing, postage & office exp. Office equipment 299 269 30 Cleaning & main- 170 153 17 tenance Insurance 264 176 88 Floral wreaths & 220 220 sick committee Life insurance 253 253 premiums Convention expense 600 600 Contributions 50 50 Testimonial dinners 65 65 Souvenir Journals & misc 23 23 Annual party 1 103 1103 TOTAL G & A EXPENSES 32724 26077 6647 Per capita taxes 2640 2640 35364 26077 9287