American Guild of Variety Artists

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Guild of Variety Artists, AFL-CIO (Har- rah's Club, et al.) and Charles Peterson . Case 20- CC-782 February 16, 1972 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 11, 1969, the National Labor Relations Board issued its Decision and Order in the above-enti- tled proceeding, concluding, inter alia, that Respond- ent engaged in permissible primary activity when it sent telegrams to certain performers requesting that they honor AFM picket lines or suffer union disciplinary action, and therefore dismissing the complaint.` On March 15, 1971, the United States Court of Ap- peals for the Ninth Circuit found that the Board erred in finding that Respondent had engaged in primary activity in sending the telegrams. The court further found there was overwhelming evidence that the enter- tainers to whom the telegrams were sent were inde- pendent contractors, that the telegrams threatened, co- erced, and restrained the independent contractors who received them, and that the telegrams were sent for the unlawful object of forcing or requiring the recipients to cease doing business with Harrah's Club or Sparks Nugget. The court concluded that by these actions Re- spondent violated Section 8(b)(4) (ii)(B) of the Act and remanded the case to the Board for the purpose of entering an order in accordance with the tenor of its decision.2 On October 26, 1971, the Supreme Court of the United States denied a petition for writ of certi- orari.' On November 22, 1971, the Board invited statements of position from the parties in light of the remand order. Such statements were received from the General Counsel, the Charging Party, the Respondent, and the Intervenor, Harrah's Club. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The court of appeals has disposed of all of the sub- stantive issues in this case,' leaving only the question of remedy for our consideration.' Intervenor, Harrah's 176 NLRB No 77 446 F.2d 471 This case was consolidated before the court with the Board's decision in Harrah's, 178 NLRB 707 ' 404 US 912 ' Inasmuch as the record and briefs adequately reflect the positions of the parties, the motion by Charging Party for oral argument is hereby denied ' The Charging Party and Intervenor, Harrah's Club, contend that the Board should now consider whether Dinah Shore and Tennessee Ernie Ford would have been or were allies of Harrah's Club In view of its disposition of the other issues the Board, in its original decision , found it unnecessary to decide this issue However, the court of appeals made it clear that it was adopting the Trial Examiner's findings that Shore and Ford would have been Club, urges that in addition to the usual cease-and- desist, and posting requirements that Respondent be required to publish the full notice in its national publi- cations. The Charging Party supports this position. In view of the wide dispersion of Respondent's member- ship we feel that this is an appropriate additional remedy and shall order Respondent to so publish the notice. Charging Party also urges the Board to order Respondent to amend its bylaws so that employer- members would not be subject to the bylaws invoked by Respondent in threatening to discipline employer- members if they performed at the club involved. Al- though the court found the provisions were used on this occasion by Respondent to engage in unlawful conduct, there is nothing, in the court's opinion, to suggest that the provisions are themselves unlawful. Under these circumstances it would be inappropriate to order their amendment or deletion from Respondent's bylaws. In our opinion, it is sufficient to order Respondent to cease and desist from engaging in the unlawful conduct. Charging Party also urges that Respondent be required to send a copy of the notice to all of its members. In our opinion, it is sufficient to require publication in Respondent's national publication. Finally, Charging Party urges that we issue a broad order and, in support of this contention, cites various other Board cases in- volving Respondent, all but one of which were resolved by settlement.' The Board has held that settlement agreements have no probative value in establishing that violations of the Act have occurred and, hence, they may not be relied upon to establish a "proclivity" to violate the Act.' The record does not otherwise demon- strate that Respondent has demonstrated a proclivity to disregard the secondary boycott provisions of the Act. Accordingly, a broad remedial order is not jus- tified in this case. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, American Guild of Variety Artists, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from threatening, coercing, or restraining Gaylord and Holiday, Sid Ceasar, or any other person engaged in commerce or in an industry affecting commerce, for an object of forcing or requir- or were allies of Harrah's Club, even though it expressed some reservations about the finding Therefore, we are precluded from further consideration of the matter in this proceeding ' The case not resolved by settlement involved violations of Sec 8(b)(2) and (1)(A) of the Act ' Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (H A Carney and David Thompson, Partners, d/b/a C & T Truck- ing Co), 191 NLRB No 2 195 NLRB No. 73 AMERICAN GUILD OF VARIETY ARTISTS 417 ing said person to cease doing business with Harrah's Club or Sparks Nugget. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its headquarters and in each of its offices, including all places where notices to members are cus- tomarily posted, and reprint in an issue of an American Guild of Variety Artists national publication , copies of the attached notice marked "Appendix."'Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative , shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by Re- spondent for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Reprinting of the notice in an issue of an American Guild of Variety Artists national publication shall be within 60 days of receipt of the notice from the Regional Director. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 20, for the informa- tion of Harrah's Club, Sparks Nugget, Sid Ceasar, and Gaylord and Holiday, and for the posting by said em- ployees or persons, if willing , at locations on their premises where notices to employees are posted. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Gaylord and Holiday, Sid Ceasar, or any other person engaged in commerce or in an industry affecting commerce, for an object of forcing or requiring said person to cease doing business with Harrah's Club and/or Sparks Nugget. AMERICAN GUILD OF VARIETY ARTISTS, 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, 13018 Federal Building , Box 36047, 450 Golden Gate Ave., San Francisco, California 94102, Telephone 415-556-3197.