Stage Employees IATSE Local 659 (Paramount Pictures Corp.)

INTERNATIONAL PHOTOGRAPHERS, LOCAL 659 International Photographers of the Motion Picture Industries, Local 659, I.A.T.S.E., AFL-CIO (Para- mount Pictures Corporation) and Louis Goldman. Case 31-CB-2172 (formerly Case 2-CB-6140) January 11, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 19, 1977, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel filed a motion to strike those parts of the Respondent's answenng brief which proposed to support certain factual findings by the Administrative Law Judge but failed to specify those pages in the record that support such findings. (See Sec. 102.46(dX2) of the Board's Rules and Regulations.) The Respondent filed a response to said motion. Inasmuch as we have considered the entire record and have not relied on either Party's assertions which were unsupported by the record, we hereby deny the General Counsel's motion to strike. 2 The Administrative Law Judge, apparently by inadvertence, found that (I) sec. 85(dXl) of the Parties' collective-bargaining agreement referred to bargaining unit work, and (2) the Respondent, in effect, had an established practice to deny waivers to nonroster still photographers seeking to become employees of an employer. The General Counsel excepted to these findings. The record supports these exceptions, and we hereby find that (I) sec. 85(dXI) refers to nonunit work, and (2) the Respondent had an established policy (as opposed to a practice) not to grant this type of waiver for nonroster still photographers. These findings do not, however, affect our adoption of the Administrative Law Judge's Conclusions of Law. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pur- suant to notice a hearing with respect to this matter was held before me in Los Angeles, California, on April 26-29, 1977. The original charge, Case 2-CB-6140, was filed on January 22, 1976, by Louis Goldman, an individual. On February 25, 1976, by appropriate order, the said charge was transferred to and continued in Region 31 of the National Labor Relations Board (herein called the Board) as Case 31-CB-2172. The complaint, issued on December 29, 1976, alleges violations of Section 8(bX1) (A) and (2) of the National Labor Relations Act, as amended (herein called the Act), by International Photographers of the Motion Picture Industries, Local 659, I.A.T.S.E., AFL- CIO (herein called the Respondent). The Respondent's answer to the complaint, duly filed, denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, comprehensive briefs have been received from the General Counsel and from the Respondent's counsel.1 Upon the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following: FINDINGS OF FACT I. JURISDICTION Paramount Pictures Corporation (herein called Para- mount) is a motion picture production company with principal offices located in Los Angeles, California. Para- mount produces, distributes, and promotes motion pictures on a nationwide basis. In the course and conduct of its business operations, Paramount annually derives gross revenues in excess of $500,000, of which over $50,000 is received from the sale of goods or services to customers located outside the State of California. The Respondent admits, and I find, that Paramount is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. ' The postheanng motion to correct the transcript, jointly filed by the parties, is hereby granted. 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Respondent, in violation of the provisions of Section 8(b)(2) and (I)(A) of the Act, did cause Paramount to refuse to hire still photographer Louis Goldman for the motion picture, "King Kong," by refusing to grant a contract waiver for Goldman because of Goldman's mem- bership in I.A.T.S.E. Local 644, a sister local of the Respondent. B. The Facts In late December 1975, or early January 1976, Gerald Smith, the Respondent's business representative, received a phone call from Dick Schonland, director of labor relations for Paramount Pictures Corporation. Schonland, prefacing his inquiry with the remark that he knew the answer before he asked the question, inquired what the position of the Respondent would be if Paramount wished to hire Louis Goldman as the still photographer 2 on the motion picture, "King Kong." 3 Smith asked who Goldman was, and Schonland informed him that Goldman was a member of I.A.T.S.E. Photographer's Local 644, the east coast sister local of the Respondent. Smith replied that regardless of Goldman's union affiliation, it would not be possible for Paramount to hire Goldman as his name did not appear on the industry experience roster.4 Schonland thanked Smith and again acknowledged that, having assisted in negotiat- ing the Association contract, he had correctly anticipated Smith's response to the question. Thereafter, Smith received a phone call from Walter Diehl, I.A.T.S.E. International president, who phoned him after receiving a complaint as a result of the Respondent's denial of Paramount's request for Goldman's services. William Horgan, business representative for Local 644, was apparently among those in Diehl's office during the conversation and also participated in the conversation. Using the office speaker phone, Diehl asked Smith what he 2 Still photographers (also called unit photographers) are essential to the production and advertising of motion pictures, and their photographs are utilized for the purpose of insuring makeup, set, or wardrobe continuity throughout the sometimes lengthy production schedule, as well as for advertising and other promotional purposes. 3 Paramount was the distributor of the motion picture, "King Kong," and the actual producing company was a separate entity called King Kong Productions, Ltd., headed by Dino DeLaurentis. Both Paramount and King Kong Productions were signatories to the coll:ctive-bargaining agreement herein, and thereby subject to the same roster requirements discussed herein. 4 The industry experience roster is, in effect, a seniority list. The operative February 1, 1973, to January 31, 1976, collective-bargaining agreement between the Respondent and the Association of Motion Picture and Television Producers, Inc. (herein called the Association), of which Paramount is a member, requires member or signatory employers to hire was trying to do to Goldman, a good union man. Smith replied that to allow Goldman to be an employee of Paramount for the making of "King Kong" would be contrary to the provisions of the contract which gives employment preference to roster photographers. Diehl acknowledged that Smith was, in fact, correct. 5 Horgan then asked whether the Respondent would permit Gold- man to perform the work if Paramount agreed to hire a standby or collaborators from the industry experience roster to work with Goldman. Smith replied that he did not believe this was permissible under the contract. Smith also had a subsequent conversation regarding the Goldman matter with Ronald Berenbeim, assistant to Business Representative William Horgan and, still later, another conversation with Schonland. As a result of these conversations, Smith was apprised of the fact that Para- mount would probably be willing to use a roster collabora- tor along with Goldman if the Respondent permitted Goldman to perform the work, and that Local 644 would have no objections to Paramount bringing a member of the Respondent to New York as a collaborator with Goldman for the filming of the New York sequences of "King Kong." 7 Smith stated to Berenbeim and Schonland, respectively, that these proposed arrangements were not feasible under the existing contract. The aforementioned phone calls from Schonland to Smith were occasioned pursuant to instructions to Schon- land from William O'Hare, then New York executive director of publicity for Paramount who was customarily involved in the hiring of unit or still photographers for Paramount pictures. It was deemed necessary to invoke Schonland's assistance in this particular matter because, as O'Hare testified, Paramount anticipated a problem, "[s]omething like that had not been done before to the best of our knowledge . . . [w]e were breaking new ground." Therefore, Paramount felt that the request should be made through Schonland, a Paramount labor relations executive who would be more conversant with the difficulties involved. O'Hare testified that in mid-December 1975 he spoke to Goldman, who was interested in working on the project, explained to him that the filming was being done in Los Angeles, California, and indicated that his not being a member of the west coast local would create major problems. Nevertheless, Paramount decided that it was prepared to utilize a standby 8 and also would, if necessary, pay the additional cost of having a Local 659 still still photographers in compliance with the established seniority or roster provisions. Goldman's name does not appear on the roster. Both Para- mount, as an Association member, and King Kong Productions, Ltd., as a signatory employer, were subject to the identical roster provisions. I It appeared to Smith that Diehl was making the call merely as a formality to satisfy those assembled in Diehl's office at the time. 6 While at one time collaborators apparently performed no work and were thereby subject to accusations of featherbedding, under the operative contract herein, collaborators were to perform the same work as the principal still photographer and were to submit their work to the producer. 7 Local 644 had no contractual basis for objecting to this latter arrangement in any regard. 8 Because of the size of the production, a second still photographer would have been utilized anyway, according to O'Hare, and therefore it is questionable whether Paramount would have incurred any significant additional expense by using a standby along with Goldman. 202 INTERNATIONAL PHOTOGRAPHERS, LOCAL 659 photographer travel from Los Angeles to New York to cover the New York sequences with Goldman. As mentioned above, O'Hare, utilizing Schonland as Paramount's conduit to Smith, instructed Schonland to convey these requests to Smith. At one point thereafter, according to O'Hare, Schonland reported that it appeared the Respondent was willing to agree to the arrangement, although O'Hare testified that he understood a firm "yes" had not been given. At another point in his testimony, O'Hare modified his initial testimony somewhat by testify- ing that "Schonland indicated to me that this might be a go project. That this might be worked out." Regardless of Schonland's precise words, it is clear that O'Hare was apprehensive enough about the matter to refrain from making a "complete commitment" to Goldman.9 On January 27, 1976, after production on "King Kong" had commenced not with Goldman but rather with a still photographer selected by Paramount from the industry experience roster, O'Hare directed a memo to Schonland as follows: This is to confirm the various conversations we have had regarding Louis Goldman. We had, indeed, wished to hire Mr. Goldman to cover the "King Kong" production when it was in California .... It was understood that his employment was contingent upon our being able to hire Mr. Goldman without violating the industry experience roster in California. When we were advised that this was not possible we agreed to retain Louis Goldman's services (depending upon his availability) when the picture was filming on location in New York City.'o On January 15, 1976, Smith directed the following letter to Schonland: t" I am rather confused by developments of yesterday and the fact that someone by the name of O'Hara [sic] in your New York ... offices had supposedly committed Lou Goldman, Local 644, Still Photographer, for the run of the "King Kong" production .... As I have discussed with your office in the last several weeks, there would be no way that Local 659 or myself, under the current conditions of our Collective Bargaining Agreement, could allow Mr. Goldman to supersede the * Schonland, who the record shows was present in the hearing room at the outset of the hearing, was not called as a witness. General Counsel has not only offered no explanation for his failure to call Schonland as a witness, but also has proffered the hearsay testimony of O'Hare to establish the substance of certain conversations between Schonland and Smith; namely, that at one point in time Smith allegedly was, in fact, willing to agree to Paramount's proposition regarding the hiring of Goldman. Such hearsay testimony, particularly under the circumstances, is not reliable evidence in support of General Counsel's position. See Big Three Industries, Inc., 219 NLRB 881 (1975); Ben Hur Produce, 211 NLRB 70, 79 (1974). Further, O'Hare appeared to have only a vague and superficial recollection of the reports from Schonland. and, therefore, I do not credit O'Hare's testimony insofar as it may differ from Smith's, whom I credit. I therefore find that at no time did Smith ever indicate that the Respondent was even conceivably willing to agree to Paramount's admittedly unprecedented request to circumvent the roster provisions of the contract and hire Goldman, a nonroster photographer. '0 The record indicates that Goldman was not retained by Paramount even for the New York shooting. seniority rights under Paragraph 68 to be employed by Paramount Pictures Corp. and/or Dino DeLaurentiis Productions, at this point in time both members of the Multi-Employer Bargaining Unit Agreement, as to do so would displace existing Roster personnel. As we have gone on record with your office, in previous inquiries, Mr. Goldman is not on the Industry Experi- ence Roster of either production company and we would, therefore, have to insist that Paragraph 68 be complied with. Further, we must insist that there be no deviations of [sic] Paragraph 85 which expressly pro- hibits the Producer from employing a Still Photogra- pher unless such person is subject to Paragraph 68 of this agreement and, as the NLRB has instructed us that to make deviations would be, in fact, arbitrary discrimi- nation because of Union membership, I would feel that both the Local Union and the employer could be in jeopardy if any such deviation were to take place. Therefore, on the production "King Kong," produced by Dino DeLaurentiis, to be released by Paramount Pictures, I see no way of making any waivers which would allow Lou Goldman to be employed by the producer as a Still Photographer, for services to be performed either in Hollywood or under the Multi- Employer Bargaining Unit Agreement. It is our intention to comply with the law of the land and the National Labor Relations Board's Colman decision, as I am sure it is yours. Smith's reference in the above-quoted letter to possible "arbitrary discrimination" by the Respondent in violation of the Act and Respondent's expressed desire to comply with the Board's Colman decision 12 is bottomed upon a 1968 Board settlement agreement entered into by the Respondent in the cited case.13 The complaint in the Colman case contained specific language alleging that the "Tri-Local Agreement" was unlawful, and that portion of the settlement agreement remedying the said violation states as follows: WE WILL NOT maintain or give effect to our "Tri-Local Agreement" with I.A.T.S.E. Local No. 644 and I.A.T.S.E. Local No. 666 insofar as said agreement may grant employment preference based solely upon mem- bership in Local No. 644 or Local 666. "I The letter accurately reflects, in part, Smith's verbal response to the prior telephonic inquiries by Schonland, Diehl, Horgan, and Berenbeim. Thus, during each of the conversations with the named individuals. Smith testified that he consistently expressed his belief that the granting of the requested waiver to Goldman or Paramount, under the circumstances, would constitute a violation of the National Labor Relations Act, as explained more fully below. 12 International Photographers of the Motion Picture Indhstries. Local 659, I.A.T.S.E. (MPO-TV of California, Inc., Y-. Productions, Inc.), 197 NLRB 1187 (1972). i3 While the settlement agreement was ultimately set aside and the matter litigated because of an unforeseen backpay issue, the Respondent has consistently adhered to the terms of the settlement agreement, despite the fact that the Administrative Law Judge therein found no violation with regard to the "Tri-Local Agreement," one particular issue in controversy, which the settlement agreement resolved. On General Counsel's exceptions, the Board specifically deemed it unnecessary to consider the effects of the '"Tri-Local Agreement." (Id at 1190, fn. 16.) 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent entered into the settlement agreement apparently believing that the General Counsel had suffi- cient evidence to prove the alleged unlawful practice under the "Tri-Local Agreement"; namely, the Respondent's permitting employer-members of the Association, contrac- tually obligated to abide by the provisions of the industry experience roster, to employ members of sister Local 644, albeit with Local 659 collaborators, while denying the same privilege to nonunion employees. Such evidence, in fact, was introduced at the hearing in the case. The evidence indicates that since entering into the settlement agreement in 1968, the Respondent has scrupu- lously adhered to its settlement agreement commitment in this regard and, returning now to the instant case, Smith believed, verbalized, and reiterated in his above-written communication to Schonland that to permit Goldman's employment by Paramount would contravene not only the roster provisions of the contract, but also the terms of the settlement agreement. Thus, Smith apparently believed that, as no good ground existed for permitting Goldman to receive preferential treatment 14 and that the Respondent's acquiescence in the arrangement would be a virtual invitation to numerous nonroster employees, who were continually seeking ways to circumvent the roster proscrip- tions, to file unfair labor practice charges with the Board based on Goldman's being granted, and their being denied, such preferential treatment. The Respondent had long been involved in a continuing dispute with Local 644, its sister local in New York, the dispute being primarily bottomed upon differences in contractual provisions and/or area standards to which television commercial producers were expected to adhere while shooting in the respective territorial jurisdictions of the Respondent (west coast) and Local 644 (east coast). While Local 644, under its standard collective-bargaining agreement, required a basic two-person camera crew for shooting television commercials, the Respondent's stan- dard contract mandated a basic three person crew to perform the same work. Thus, when an east coast television commercial producer entered the Respondent's territorial jurisdiction and commenced shooting "short crewed," that is, with a two-person camera crew, as frequently occurred, the Respondent regarded this as an unacceptable proce- dure which undermined the area standards established by the Respondent and gave east coast television producers a competitive advantage. Indeed, the Respondent received complaints from signatory employers who were unable to successfully bid against east coast producers as a result of the different respective crew requirements. To compound the problem, the Respondent had difficulty in policing these frequent infractions throughout its extensive territori- al jurisdiction because members of Local 644, while working within the Respondent's jurisdiction, would al- most systematically fail to report their presence and deposit their working card, whether figuratively or actually, with 14 While it may reasonably be presumed that Smith was aware that the making of "King Kong" was a major Hollywood undertaking, nevertheless, the record does not indicate that Smith was ever made aware of any special circumstances which would serve as a nondiscriminatory basis for allowing Goldman and/or Paramount preferential treatment. O'Hare testified that as the motion picture, "King Kong," was one of the biggest undertakings of the decade, it was very important for Paramount to receive the best and most the Respondent, an obligation which flowed from member- ship in the I.A.T.S.E. These considerations prompted Smith to direct letters to Horgan, the business representative of Local 644, dated August 26, and October 29, 1975, summarizing the problem and requesting that members of Local 644 adhere to the standards established by the Respondent upon seeking clearances and working within the Respondent's jurisdic- tion. In the letter of October 29, 1975, Smith states that: Unless we have immediate cooperation, we shall deny all requests for any clearances as we cannot stand by and see our jurisdiction and our contracts castigated in any way, shape, or form. And by letter of December 2, 1975, Smith informed Horgan that: Effective December 8, 1975 no waivers will be given to any individual in Local 644 to enter the jurisdiction of Local 659 where it involves the Multi-Employer Bar- gaining Unit Agreement, that in any way would displace existing Roster personnel in their work func- tions and/or work categories. We, therefore, hope you will notify your membership that, effective December 8, no waiver requests will be granted for any camera personnel to enter the jurisdiction except in the areas covered by industrial contracts, news/documentary agreements and areas that would not violate the Federal Laws. We have again been informed by the NLRB this week that to allow any deviations of the Tri- Local Agreement would violate the Colman decision; therefore, we request that you notify your office staff and members that no exceptions are possible and not to please request same. The collective-bargaining agreement in question contains specific language for the granting of waivers. First, the Respondent is required under section 85(d)(1) of the contract to grant an "unconditional waiver" to nonroster still photographers "where such still photographer is on a specific bona fide assignment for a local newspaper, nationally recognized magazine, or a national news service .... " Thus, although the still photographer would, in effect, be performing bargaining unit work, it was consid- ered that free advertising of the motion picture through certain specified media outweighed the limited amount of unit work that would be displaced by permitting the nonroster still photographer to take pictures. The testimonial and documentary evidence presented shows that disputes between the Respondent, various nonroster still photographers, and signatory producers have arisen regarding whether certain nonroster still photographers, members of Local 644, were actually on "a specific bona fide assignment" for one of the specified extensive publicity possible, and that it was felt that Goldman's services would be invaluable. But it cannot be maintained that the personal preference of a producer for a particular employee constitutes such special circumstances as to warrant circumventing the roster provisions of the contract. Indeed, the very essence of a seniority system is to place limitations on an employer's personal preference in deference to other considerations deemed more important. 204 INTERNATIONAL PHOTOGRAPHERS, LOCAL 659 media or whether they were shooting on speculation or even, perhaps, were actually being paid by the producer. On occasions when the Respondent believed the nonroster still photographer or the producer was violating this provision of the contract, the Respondent would often insist on the hiring of one or more collaborators to work along with the still photographer, in effect, withdrawing the unconditional waiver under the aforementioned applicable section of the contract and imposing conditions.15 Further, section 85(e) of the contract specifies that "the local union may, in circumstances other than those provid- ed above, grant waivers upon the request of the Producer." With regard to the application of this particular contract provision, the record shows that "charitable" waivers have been granted by the Respondent for nonroster still photog- raphers to take pictures of movie stars on motion picture sets on occasions when particular charitable organizations may be engaging in their annual promotional campaigns. And occasionally the Respondent will, under the nomen- clature of "professional courtesy," allow a producer the right to have a nonroster photographer take still photo- graphs of, for example, a visiting for:ign dignitary or other person important to the producer who may happen to be visiting a movie set. With these limited exceptions, there is no evidence that the Respondent has regularly granted other waivers under section 85(e) of the contract. However, the record discloses that perhaps in several rare instances the Respondent has permitted, after the shooting of a motion picture has commenced, a nonroster still photogra- pher to remain and take pictures on the set, apparently with one or more collaborators, because of a personal relationship existing between an individual vitally neces- sary to the filming of the movie and the particular still photographer. In these instances, to have excluded the still La The conditions were sometimes quite onerous, such as, for example, requiring as many as five collaborators for one still photographer who had repeatedly, according to the Respondent, performed work in violation of this provision of the agreement by misrepresenting the nature of his job assignment. Apparently the producers deemed it in their best interest to agree to these imposed conditions in order to get the work completed and avoid the possibility of having to pay liquidated damages under the contract. is General Counsel argues that an adverse inference should be drawn from the Respondent's alleged refusal to comply with a broadly worded subpoena duces tecum, which, in effect, called for the production of any and all documents fiom June 30, 1972, to the date of the heanng, which implicitly or explicitly concern the granting of, or the refusal to grant, waivers under the contract. At the hearing, after much discussion, it became apparent that the Respondent had a good-faith misunderstanding of what particular types of documents General Counsel was requesting by his subpena, both the Respondent and General Counsel interpreting the subpena differently. The Respondent then indicated that it would be willing to provide the General Counsel with the requested documents, if available. At this point, during General Counsel's case-in-chief, General Counsel stated that since the Respondent had been specifically made aware of General Counsel's reasons for subpenaing the documents, it would be worse than useless to have the documents produced because the Respondent, being advised of precisely the type of inculpating evidence General Counsel was seeking, would only furnish documents which were favorable to the Respondent's position. General Counsel pursued the matter no further other than to make the request, renewed in his brief, that an inference adverse to the Respondent be drawn, citing International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) lGvrodyne Co. of America] v. N. LR.B., 459 F.2d 1329 (C.A.D.C., 1972). The instant set of facts could not be more unlike those in the Gyrodyne case where respondent photographer would have jeopardized the entire produc- tion.16 C. Analysis and Conclusions General Counsel does not contend that the Respondent did not have the contractual right to refuse Paramount's request for a waiver for Goldman, a nonroster still photographer. Rather, acknowledging that this right exists, General Counsel argues that the Respondent was motiva- ted by legally impermissible considerations in disallowing the waiver for Goldman, one of which was the Respon- dent's ongoing controversy with Local 644; and that but for this interlocal dispute, the Respondent would have granted the same dispensation for Goldman, a member of Local 644, as it had allegedly granted fobr other members of Local 644 in the past. The evidence fails to support General Counsel's conten- tions. Rather, it is clear that on no occasion, at least since the Respondent entered into the above-discussed settle- ment agreement in 1968, had the Respondent permitted the type of waiver which Paramount was requesting for Goldman.t 7 Thus, to summarize, Paramount was requesting a waiver for Goldman, a nonroster still photographer who would have remained on the payroll of either Paramount or King Kong Productions, Ltd., for a period of approximately 6 months, while, as I have found, Paramount presented the Respondent with no unusual or special circumstances which would warrant giving Goldman the requested waiver.18 General Counsel's own witness, O'Hare, empha- sized that such a waiver had never before been permitted; Schonland indicated to Smith that Schonland was merely following instructions in requesting the waiver for Gold- man and accepted Smith's immediate denial of the request therein unequivocally refused to furnish subpenaed documents despite the Board's denial of respondent's motion to revoke the subpena. Here, the Respondent indicated its willingness to comply with the subpena upon having been verbally advised at the hearing of the particular types of documents which General Counsel was seeking. General Counsel's novel request is denied. it The waivers which the Respondent did customarily permit under section 85 of the contract, as described above, were entirely different. Uider sec. 85(d)() waivers were required to be granted to nonroster photographers on a "specific bona fide assignment" for certain media; and under sec. GS(e) waivers were granted for "charitable" or "professional courtesy" reasons. The fact that the Respondent believed certain producers and/or nonroster still photographers were violating the limited unconditional waiver require- ments under sec. 85(dXI) of the contract, and thereby imposed certain conditions, is not evidence that the Respondent was thereby applying the provisions of sec. 85(e), which may be characterized as the discretionary waiver provisions of the contract, to these producers and/or nonroster still photographers. Rather, the Respondent, finding itself in the dilemma of not being entirely certain, but being highly suspicious, that a producer and/or nonroster still photographer was attempting to perform work impermissible under sec. 85(dXl) of the contract, felt it most expedient to permit the work to proceed upon the parties' agreeing to certain conditions, rather than to precipitate a serious confrontation which could delay the movie production schedule. I8 Another section of the applicable collective-bargaining agreement provides that if no roster still photographer is available who is capable of performing or willing to perform particularly unusual photographic work. such as hanging from a helicopter and taking photographs at high altitudes, the producer may hire a nonroster still photographer for the work. As stated above, the still photography for "King Kong" did not involve work of this nature. 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with equanimity knowing that the Respondent, applying the terms of the collective-bargaining agreement which Schonland helped negotiate, would not allow the industry experience roster to be so circumvented; no similar waiver had been granted subsequent to the 1968 settlement agreement; and the evidence shows, as I have previously found, that from the very outset Smith was adamant that such a requested waiver was not permissible. Under these circumstances, it is crystal clear that whatever type of waivers the Respondent was referring to in its aforemen- tioned letter of December 2, 1975, wherein the Respondent announced that it would no longer grant waivers to members of Local 644, it was certainly not indicating that it had in the past or would in the future consider granting the type of waiver which Paramount was requesting for Goldman. 19 Thus, I find that there-is no merit to General Counsel's argument that but for the Respondent's dispute with Local 644 Goldman would have received the request- ed waiver. Next, General Counsel argues that the Respondent's denial of the waiver was also motivated by the Respon- dent's belief that to allow such a waiver for Goldman, a member of Local 644, would occasion a plethora of charges against the Respondent by nonunion still photographers. 20 To be sure, the Respondent was attempting to adhere to the terms of the aforementioned settlement agreement, and Smith apparently believed, as he set forth in his January 15, 1976, letter to Schonland, that to allow Goldman to perform the work in question would constitute "arbitrary discrimination" because of union membership in violation of the Act.2 ' But whatever Smith's interpretation of the requirements under the terms of the settlement agreement, the fact is not altered that the Respondent, from the outset, denied the waiver request in order to avoid compromising or undermining the seniority provisions embodied in the contract. And, unlike the somewhat analogous situation in the Russell Stover case, supra, the Respondent herein did not alter its normal course of action and withhold a "benefit," in this case a "waiver," because of Goldman's union affiliation. Rather, the Respondent's normal course of action subsequent to the 1968 settlement agreement was 19 The Goldman matter had not yet arisen at the time of the December 2, 1975. letter. 20 Citing Russell Stover Candies, Inc., 221 NLRB 441 (1975), General Counsel maintains that the Respondent's denial of the waiver in order to avoid giving the appearance of favoritism to a union member is inherently discriminatory for it is tantamount to an admission that Goldman's union membership was a causative factor in his not being permitted to receive the "King Kong" job. 21 Smith is somewhat mistaken in so interpreting the Respondent's obligations under the settlement agreement. As acknowledged during the course of his testimony, he had been told in 1968, by the Board agent responsible for handling the Colman case, that, if the Respondent chose to make an exception for nonroster members of Local 644, as had been the practice under the "Tri-Local Agreement," the Respondent would thereby be obligated to make similar exceptions for all nonroster photographers regardless of union affiliation. 22 In this regard, General Counsel is incorrect in implying that under the arrangement proposed by Paramount there would have been additional work for one of the Respondent's members as a result of Paramount's agreement to bring a Local 659 still photographer to New York for approximately I month, which Paramount customarily would not have done. Rather, the record indicates that Paramount utilized two still to consistently withhold such waivers, which, indeed, was its prerogative both under the terms of the collective- bargaining agreement and the settlement agreement. Fur- ther, the facts herein show that the operative motivation for disallowing the waiver was the Respondent's good-faith effort to protect the seniority rights of the Respondent's members and provide them with employment opportuni- ties.22 That the Respondent relied on the settlement agreement to enforce or add weight supportive of its initial determination to deny the waiver does not, contrary to the contention of General Counsel, alter the clear record evidence that the waiver would have been denied in any event, as I so find. On the basis of the foregoing, I find that the Respondent did not cause Paramount to discriminate against Goldman, as alleged, in violation of Section 8(bX2) and (IXA) of the Act, and therefore I shall dismiss the complaint herein. See Ashley Hickham-Uhr Co., 210 NLRB 32 (1974); Interna- tional Union of District 50, Allied and Technical Workers of the United States and Canada and its Local 13102 (Kelly Foundry and Machine Co., Inc.), 201 NLRB 360 (1973). Cf. Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 576 (Westfield Thriftway Supermarket), 201 NLRB 922 (1973). CONCLUSIONS OF LAW 1. Paramount is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated Section 8(bX2) and (IXA) of the Act as alleged. Accordingly, on the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER23 The complaint is dismissed in its entirety. photographers for most of the shooting, thus apparently providing consider- ably more work for the Respondent's members than would have been the case under Paramount's proposed arrangement. I base this conclusion on O'Hare's testimony that "We ... were prepared to go to the extra expense of paying for the standby, although we were planning on using the standby in this instance because it was [a] huge production and we often had two units going." While the record does not indicate that Smith was aware of Paramount's intentions or considered this possibility in denying the waiver, it may be reasonably assumed that Smith, apparently having some foreknowledge of the magnitude of the production, was aware that Paramount would necessarily utilize more than one still photographer during the shooting. In any event, it is readily understandable that Smith would not desire to obtain I month's employment for a Local 659 member when to do so would compromise years of past practice under a strict application of the contract, with possibly unforeseen adverse ramifications. 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 206