Painters Local 829 (Steve Horn, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades, AFL-CIO and Steve Horn, Inc. Case 2-CB-6625 January 30, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 12, 1977, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings, 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 Respondent, United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades, AFL-CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Administrative Law Judge: On March 23, 1977, Linda Horn, president of Steve Horn, Inc., herein called Horn, filed an unfair labor practice charge, and on April 8, 1977, an amended charge, against United Scenic Artists, Local 829, International Brotherhood of Painters and Allied Trades, the Respondent, pursuant to the National Labor Relations Act, 29 U.S.C. § 151, et seq. On April 12, 1977, the General Counsel of the Board, by the Regional Director for Region 2, issued a complaint and notice of hearing on the charge. Service of the charge, the complaint, and the notice of hearing were made on the Respondent.l On April 22, 1977, the Respondent filed an answer denying the commission of unfair labor practices. Upon due notice, a hearing was held before me on May 23, 1977, in New York, New York. Opportunity was afforded to be heard, to introduce and to meet material evidence, to present oral argument, and to file briefs. I In the meantime, another charge, 2-CP-574 was filed on March 28, 1977, alleging a violation of Sec. 8(bX7Xc) by the Respondent, but this 234 NLRB No. 91 On June 6, 1977, the Respondent filed a motion to correct the transcript. No response having been received to the motion, and it appearing appropriate, the motion is granted except as to the requested correction on line 7, page 36, of the transcript, which I do not find. On June 13 and 14, 1977, respectively, the General Counsel and the Respondent filed briefs, which have been considered. Upon consideration of the record, the briefs, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION; LABOR ORGANIZATION Steve Horn, Inc., a New York corporation with its principal place of business at 415 East 54th Street, in the city and State of New York, is engaged in the production and distribution of filmed commercials for television and motion pictures. During the past year, whicr period is representative of its annual operations generally, the gross revenue of Steve Horn, Inc., for these film commercials was in excess of $1 million, over $50,000 of which was for commercials filmed and produced for advertising agencies located outside the State of New York. Horn is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts The Respondent is engaged in the production and distribution of film commercials for television and motion pictures. In addition to camera work, this production may require the construction and decoration of a set by the Respondent, and the assembly of a wardrobe. Set construc- tion requires the services of an art director and scenic artists, among others. Wardrobe assembly is done by a stylist, or costume designer. Art directors, scenic artists, and stylists are within the jurisdiction of the Respondent Union. Horn regularly employs two stylists and one scenic artist, who are known as "staff" employees, and who are not members of the Respondent Union. When construction of a set is required, Horn has traditionally hired a union set director, and, if needed, additional union stylists and union scenic artists. Generally those individuals were supplied by the Union, or hired directly by Horn with the Union's apparent acquiescence. Horn made contributions to the Respondent's pension and welfare fund for such employ- ees, though there was no written agreement between Horn and the Respondent. Sometime in March 1975, on an occasion when Horn was seeking extra help for the production of a commercial, Max Kerz, a representative of the Respondent, told charge was later withdrawn with the approval of the Regional Director on April 11, 1977. 562 UNITED SCENIC ARTISTS, LOCAL 829 Lodewyck Farkas, Horn's production manager, in sub- stance, that the Respondent Union would not service Horn unless Horn signed an agreement with the Union. Farkas responded that, in order to proceed with the production under way, he would sign an agreement for the one job, and under date of March 26, 1975, Farkas signed the following document on behalf of Horn without consulting Horn's owners, who were out of the country. The docu- ment was also signed by Andrew Clores, business agent, on behalf of the Respondent. The instrument contains no termination date. United Scenic Artists, Local 829 1546 Broadway New York, N.Y. 10036 PRODUCER Steve Horn, Inc. ADDRESS 415 E. 54 Street New York, N.Y. It is hereby agreed between the parties hereto that the Official Contract between United Scenic Artists and Film Producers Association dated March 23, 1971 to March 27, 1974 is binding upon the parties and the parties agree that all provisions of said agreement apply as if individually negotiated herein. The current rates are as follows: Aqs of A.s of Art Dire tor 7/1/72 3/28/73 unlimited hours weekly 35 hr. weYk Daily rate for 7 hr. day $676.67 $717.27 482.56 511.51 120.95 128.21 Artist (7 hr. day) 86.80 Jou.rneynmn Scenic Artist (7 hr. day) 69.80 Costtne Ds iqner (35 hr. week) (ostr. Fdic;vipay r (7 hr. lay) 92.01 73.99 341.71 362.21 94.32 99.98 Checkoff. The Employers agree that they will deduct for and on account of a special dues assessment 2% of all gross daily or weekly wages. It is further understood and agreed that the contribu- tion to the United Scenic Artists Pension and Welfare Funds shall be 8% of all gross wages, and shall be paid weekly as provided in the aforementioned agreement. 2 The Respondent presented no testimony. However, Farkas' testimony is that within a year after the signing of the agreement, Andrew Clores, business agent of the Respondent. visited Horn's studio in connection with Horn's production of a commercial without the use of Respondent Union personnel. On that occasion, Clores asserted that Farkas had signed a The undersigned reaffirms and ratified [sic] each and every provision of the said Contract except as modified herein and acknowledges that this letter and the wages and Trust Fund contribution contained herein shall be without prejudice to any negotiations taking place. It is further agreed that any increases agreed upon during said negotiations shall be binding as of the effective date resulting from said negotiations. Farkas' testimony is that he understood that the contract was only for that job. The Respondent's position is apparently to the contrary.2 Whatever Farkas' understanding, after the signing of the document of March 26, 1975, and at least up to February 1977, Horn contributed to the Respondent's pension and welfare funds the 8 percent of the gross wages of the Respondent's members hired by Horn, in accordance with the March 26, 1975, document, and paid such personnel wages equal to or in excess of those specified therein. However, Horn did not at any time make such contribu- tions for Horn's permanent staff of stylists and artists, and at least two of those were paid less than the contract scale. Nor is there evidence that Horn at any time paid the special dues assessment of 2 percent specified in the agreement. Farkas' testimony is that he was never shown or given a copy of the contract between United Scenic Artists and Film Producers Association referred to in the March 26, 1975, agreement, and such contract is not in evidence, a fact which is the subject of further discussion infra. On or about February 24, 1977, Joan Chaber, who replaced Farkas as Horn's production manager, had a telephone conversation with the Respondent's business agent, Clores, in connection with a job then in production for United Air Lines, on which Horn was using some union personnel. In that conversation, Clores stated that Horn was not abiding by its contract and was hiring nonunion stylists. Chaber replied that she knew of no contract with the Respondent. Clores then said that unless Horn signed a contract by 10 a.m., the next day, he would pull his men off the job. Chaber told Clores that she would contact Horn's lawyer. On the following day, Horn's attorney, Alan Winick, telephoned Clores and asked Clores what the problem was. Clores replied that since Horn was taking the position that it had no contract with the Union, Clores would not permit the Respondent's people to work on the set unless Horn signed a contract. Winick responded, in substance, that Horn would sign a contract provided that Horn's three staff people were admitted to membership in the Union or permitted to continue working. Clores responded that that was "not the subject of discussion," that the membership would have to vote on admission into the Union, and that either Horn would sign the contract or Clores would not permit union personnel to continue to work on Horn's job. Later in the same day, February 25, the Respondent commenced picketing Horn's premises with signs stating: contract with the Respondent, while Farkas insisted that he had signed an agreement only for the one job. On subsequent occasions, related hereinaf- ter, Clores also insisted to representatives of Horn that the Respondent had a contract with Horn. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steve Horn, Inc., unfair labor, working below stan- dards set forth by Local 829. About 2 days later, Attorney Winick telephoned Clores and asked whether Clores had changed his position. Clores replied in the negative, adding that unless he got a signed contract the strike and picketing would continue. Winick repeated that Horn was prepared to sign the contract, but asked what Horn was to do with the staff people. Clores replied that they were not his concern, that they would not be taken in as part of the contract, and that they could apply for membership "like anybody else." In response to inquiry by Winick as to the possibilities of their being accepted by the Union, Clores indicated that the chances of acceptance were remote. Winick and Clores met again several days later and discussed the situation. Clores asked Winick whether Horn was prepared to sign. Winick asked that the three staff people "either be admitted to the Union or permitted to work." Clores replied, "I can make no agreements with you of any kind, you sign or the strike and the refusal [to work] continue." At the time of hearing the picketing was still continuing. B. Contentions and Conclusions The contentions and the facts present several anomalies. The complaint contains a number of allegations: (1) that on or about September 23, 1976, Horn and the Respondent have maintained a contract covering art direction, scenic designers, scenic artists, costume designers, and stylists, which contract (a) requires the employees to acquire and maintain membership in good standing in the Respondent as a condition of employment, (b) provides for a wage checkoff of union dues and initiation fees, and (c) requires that all unit work be performed exclusively by members of the Respondent. (2) The complaint further alleges that since on or about September 23, 1976, the Respondent has required Horn not to employ Horn's permanent crew (the staff) on certain jobs, but instead to employ members of the Respondent. (3) The complaint also alleges that on or about February 25, 1977, and thereafter the Respondent picketed Horn, and threatened to continue the picketing, unless Horn (a) entered into an agreement recognizing the Respondent as collective-bargaining representative of the unit employees, and (b) agreed to employ only the Respondent's members as unit employees. These acts are alleged to constitute violations of Sections 8(b)(1)(A) and 8(b)(2) of the Act. The Respondent's answer denies the allegations of unfair labor practices, but admits (1) that Horn and the Respon- dent are parties to a collective-bargaining agreement, and (2) that the Respondent has requested Horn to acknowl- edge its lawful obligations under the agreement and to comply with it. In addition, the Respondent offers affirma- tive defenses, inter alia, to the effect that the provisions of the agreement are subject to the proviso of Section 10(b) of 3 The transcript reads: JUDoE SCHNEIDER: And this is the contract, Mr. Berman, which you say contains the arbitration clause which is the basis for your assertion in the answer? MR. BERMAN: That's correct. the Act, and that the matters complained of are subject to arbitration. It has been seen that the document signed by Farkas on behalf of Horn and by Clores on behalf of the Respondent dated March 26, 1975, does not contain the complete terms of that agreement, since the provisions of the United Scenic Artists-Films Producers Association contract are not stated specifically, but are incorporated by reference. However, that contract is not in evidence, nor, indeed, is there any evidence that it was still effective at the time of signing the March 26, 1975, instrument, or in February 1977 at the time the instant controversy arose. During the presentation of his case, the General Counsel produced what he represented to be that 1971-74 agree- ment, and asked the Respondent to stipulate it into evidence. The Respondent refused. Accompanying collo- quy disclosed that the document contained an arbi'ration provision which was the basis for the Respondent's affirmative defense based on arbitration.3 However, the document was not offered in evidence. At a later point in the hearing, the General Counsel requested a stipulation from the Respondent to the effect that the 1971-74 agreement contained the following provi- sion: All work falling within the scope of the unit employees covered by the contract, including scenic artists and stylists, be performed exclusively by members of Re- spondent. The Respondent declined to enter into such a stipulation, and the provision was not offered in evidence. The General Counsel concedes that nothing in the document of March 26, 1975, is violative of law. The first allegation of the complaint, that alleging the maintenance and enforcement of an unlawful contract, is therefore not sustained. This leaves the other two allegations of the complaint, and as to those the General Counsel maintains he has established them. As evidence the General Counsel relies on the conversa- tions between Business Agent Clores and Attorney Winick, plus the picketing. Those, he contends in essence, establish the Respondent's purpose to seek a closed shop, and that Clores' actions affectively required Horn to discharge its staff and sign a contract in order to avoid further picketing. The Respondent's position, in essence, is that the picketing was merely to secure a contract, caused by Horn's disavowal of the contract, its breach of the wage provisions, and its failure to pay the contractual wage scale and the pension and welfare benefits respecting the staff employees. Thus, the Respondent says, the picket signs were truthful, and the picketing protected because the Respondent believed the contract to have been breached (citing Building and Construction Trades Council of Santa Barbara County, 146 NLRB 1086, 1093 (1964)). Continu- ing, the Respondent contends that the picket signs were truthful because Horn was paying the majority of its staff within the Union's jurisdiction less than the union scale, and was not making payments to the health and welfare fund on the wages of staff employees. Affirmatively, the Respondent contends, it had no obligation to accept or 564 UNITED SCENIC ARTISTS, LOCAL 829 sponsor Horn's staff for membership in the Union as a condition to Horn's signing a contract, or to give assurance that the staff people would be permitted to continue working. Plainly, the relationship between the parties was singular. Horn did not comply with the apparent requirement on the face of the March 26, 1975, instrument, insofar as it related to the pay scale of staff employees and the making of payments to the health and welfare fund on their wages, and there is no evidence that Horn complied with the requirement for a 2-percent special dues assessment. However, in the absence of the 1971-74 agreement, it cannot be said conclusively what the agreement of March 26, 1975, was. The terms of the 1971-74 document may bear on-or even contradict-those stated in the March 26, 1975, instrument. For all that appears to the contrary, the 1971-74 agreement may exempt Horn's staff from the union wage scale, payment of health and welfare benefits on their wages, or the requirement for a 2-percent special dues assessment. No conclusion as to rights and obliga- tions of parties under an agreement can be drawn in the absence of the complete terms of the agreement. The burden of establishing the Respondent's affirmative de- fense that Horn violated the agreement of March 26, 1975, was on the Respondent. Having chosen to prevent the record from disclosing the full terms of that agreement, it must be held that the Respondent has not established its affirmative defense. Thus, it cannot be found that Horn did not comply with the March 26, 1975, agreement, whatever it was.4 In any event, it is inferred from the circumstances that the Respondent was aware, at all material times, of Horn's nonunion staff employees, knew that no contributions were being made on their behalf, and knew that they were being paid below union scale.5 It is therefore concluded that the Respondent waived or acquiesced in Horn's employment practices vis-a-vis the staff employees. Finally, the defense fails because there is no evidence, other than the self-serving and nonprobative declaration on the picket sign, as to the Respondent's purpose in the picketing. It cannot be found that the picketing was in protest of Horn's failure to abide by the March 1975 agreement, despite Clores' statements, because the com- plete agreement establishing the extent of Horn's obliga- tions is not in evidence. The evidence produced by the General Counsel required, as a minimum, persuasive testimony or other probative evidence demonstrating the legitimacy of the picketing; otherwise a conclusion is required that the Respondent had none. The General Counsel's credited evidence establishes, prima facie, either directly or by persuasive inference, that the Respondent's course of action, beginning in February 1977, including the picketing, was directed to securing a contract from Horn recognizing the Respondent as exclu- sive bargaining representative of the staff employees, 4 It may also be added that, as to the checkoff, there is no evidence that the employees authorized a checkoff, as required by Sec. 302(c)(4) of the Act. Hence Horn's failure to checkoff could not be a valid defense, even if required by the agreement, and even if deliberate. I Thus, the Respondent contends that the picketing was in protest of Horn's substandards, and it introduced evidence of the staff pay scale in among others, requiring checkoff of dues assessments, and payment of pension and welfare benefits, while the Re- spondent was effectively denying union membership to the staff employees, as well as refusing a commitment to the continuance of their employment. That action, in my opinion, is violative of the statute, unless overcome by the Respondent's evidence. But the Respondent introduced no testimony as to the purpose of its conduct or the basis for its refusals. In the circumstances of the General Counsel's prima facie case, a persuasive explanation is required to avoid an inference that the Respondent's purpose was to require union membership as a condition of employment at Horn's, while refusing to sponsor the staff employees for such membership, or to consent to their continuance in employment. That, in essence, is a demand for a closed union and a closed shop. While Section 8(bXIXA) of the Act does not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership, it does not authorize a closed shop. Indeed, Section 8(bX2) of the Act, as interpreted, effectively prohibits conditioning employment on union membership, if such membership is not available to employees. In these circumstances, it is found that the Respondent's entire course of conduct which began Febru- ary 24, 1977, was directed to securing a collective-bargain- ing contract requiring Horn to employ only union mem- bers, while denying union membership and employment to staff employees. The picketing was in aid of that purpose, and hence was also unlawful. It is consequently inferred that the Respondent refused to stipulate to the 1971-74 contract and its contents for the reason that the facts thereby adduced would be adverse to the Respondent's claim. If it be assumed (from the absence of evidence on the point) that the Respondent did not insist on the displacement of the staff employees under the 1971- 74 agreement, which, according to the General Counsel's offer, contained a clause requiring that all unit work "be performed exclusively by members of Respondent," does not tend to establish that the Respondent's 1977 demands must be interpreted to the same effect. In the first place, the 1971-74 contract not being in evidence, it cannot be inferred that the contract contained such a clause. Second, all the evidence is to the effect that the Respondent would not sponsor the staff employees for union membership or authorize their continued employment by Horn; thirdly, taking Clores' statements at face value, the Respondent presumably changed its view in 1977 regarding Horn's employment of nonunion staff employees. It is consequently found that, beginning on or about February 24, 1977, and continuing to date, by the conduct detailed above, including the picketing, the Respondent has sought to compel Horn to enter into a collective- bargaining agreement recognizing the Respondent as the collective-bargaining representative of Horn's unit employ- ees, and agreeing to hire and employ only the Respondent's members as unit employees, while denying union member- support of that contention, as well as evidence of Horn's failure to make contributions to the welfare fund on their behalf. It has been seen that, within a year after Farkas signed the March 1975 agreement, Business Agent Clores visited Horn's studio in connection with Horn's use of nonunion personnel (fn. 2, supra). There is no assertion, evidence, or indication that the Respondent did not know of the arrangement. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship and employment to Horn's staff employees. By such conduct the Respondent violated Sections 8(bX)(IXA) and 8(b)(2) of the Act.6 Upon the foregoing findings and conclusions, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 7 United Scenic Artists, Local 829, Brotherhood of Paint- ers and Allied Trades, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) By picketing, threats, or by any other action, seeking to require, force, or compel Steve Horn, Inc., to enter into a collective-bargaining contract for any of Horn's employees (1) without proof that the Respondent represents a majori- ty of Horn's employees in the appropriate bargaining unit involved, or (2) that would (a) require membership in the Respondent as a condition of hiring, or (b) require membership in the Respondent as a condition of employ- ment unless authorized by Section 8(a)(3) and 8(bX2) of the Act. (b) Seeking to secure discrimination against employees in violation of Section 8(b)(2) of the Act. (c) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw the picket line at the premises of Steve Horn, Inc., and cease all picketing of Steve Horn, Inc. (b) Post at conspicuous places in the Respondent's business offices, meeting halls, and all places where notices to employees are customarily posted copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days 6 Since all the acts found to constitute unfair labor practices occurred within 6 months of the filing of the charge, Sec. 10(b) of the Act is not a bar to the complaint. I 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. I In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 2 sufficient signed copies of the aforementioned notice for posting by Steve Horn, Inc., Horn willing, at places where notices to Horn's employees are customarily posted. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NoTIcE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT seek by picketing, threats, or by any other action, to require, force, or compel Steve Horn, Inc., or any other employer, to enter into a collective- bargaining contract for any of the Employer's employ- ees without proof that we represent a majority of such employees in the appropriate unit involved. WE WILL NOT seek by the same or similar methods to require Horn or any other employer to sign a contract requiring membership in our Union as a condition of hiring. WE WILL NOT seek by the same or similar methods to have Horn or any other employer sign agreements with us requiring membership in our Union as a condition of employment unless such contracts are authorized by Section 8(aX3) and Section 8(b)(2) of the National Labor Relations Act. WE WILL NOT seek to secure discrimination against employees in violation of Section 8(b)(2) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL withdraw the picket line which we have maintained at the premises of Steve Horn, Inc., and cease all picketing of Steve Horn, Inc. UNITED SCENIC ARTISTS, LOCAL 829, BROTHERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO 566