American Federation of Television and Radio Artists

AMERICAN FEDERATION OF TELEVIFION & RADIO. ARTISTS 161 American Federation of Television and Radio Artists and LK Productions, Inc. American Federation of Television and Radio Artists, Dallas-Fort Worth Local and LK Productions, Inc. Cases 23-CC-463 and 23-CC-467 April 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 31, 1973, Administrative Law Judge Lloyd Buchanan issued the attached Decision in this proceeding. On December 10, 1973, the Respondent Unions filed exceptions and a supporting brief, and on December 17, 1973, the General Counsel filed an answering brief to exceptions of Respondents. Thereafter, the Charging Party, General Counsel, and Respondents jointly filed with the Board on February 28, 1974, their "Motions to Withdraw Exceptions and to Substitute Therefor Joint-Limited Exceptions." In that document the named parties jointly request the Board to permit the Respondents to withdraw their exceptions to the Administrative Law Judge's Decision and recommended Order and to substitute therefor joint-limited exceptions re- questing certain modifications in the recommended Order and Notice. 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 having duly considered the matter, the joint motions are hereby granted. Therefore, in the absence of exceptions to the Administrative Law Judge's findings and conclusions of law, the Board adopts pro forma those findings and conclusions. With respect to the Administrative Law Judge's recommended Order and notice , the Board adopts those recommendations, modified in accord with the limited exceptions of the named parties. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, American Federation of Television and Radio Artists and American Federation of Television and Radio Artists, Dallas-Fort Worth Local, severally, their respective officers, agents, and representatives, shall: 1. Cease and desist from: (a) Placing LK Productions, Inc., or any other employer or person with whom they have no primary 210 NLRB No. 31 dispute on an "unfair list," or issuing notices to their members , recording companies , or franchised agents regarding such employers or persons listed on an "unfair list," where in either event their members are threatened with internal union discipline for per- forming, or accepting an engagement to perform, for any such employer or person. (b) Threatening, coercing, or restraining LK Productions, Inc., or any other person engaged in commerce, where an object thereof is to force or require any employer or other person to cease doing business with an employer who lawfully refused to enter into an agreement with either or both of the Respondents. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Remove LK Productions, Inc., and Larry Kane from their "Unfair Lists." (b) Notify all of their contracting recording companies and franchised agents that the Respon- dents have removed LK Productions, Inc., and Larry Kane, from the "Unfair Lists." (c) Publish "Appendix A" in its national publica- tions. (d) Post at their offices and meeting halls copies of the attached notice marked "Appendix A." 1 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by their respective representatives, shall be posted by the Respondents, immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Furnish copies of "Appendix A" to all record- ing companies and franchised agents (if willing) on its mailing lists, for posting by them. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 1 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT place LK Productions , Inc., or 162 1DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other employer or person with whom we have no primary dispute on an "unfair list," or issue notices to our members, recording companies, or franchised agents regarding such employer or persons listed on an "unfair list," where in either event our members are threatened with internal union discipline for performing, or accepting an engagement to perform, for any such employer or person. WE WILL NOT threaten, coerce, or restrain LK Productions, Inc., or any other person engaged in commerce, where an object thereof is to force or require any employer or other person to cease doing business with an employer who lawfully refuses to enter into an agreement with either or both of us. WE WILL remove LK Productions, Inc., and Larry Kane from our "Unfair Lists." WE WILL notify all of our contracting recording companies and franchised agents that we have removed LK Productions, Inc., and Larry Kane, from the "Unfair Lists." WE WILL publish this notice in our national publications. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS (Labor Organization) Dated By (Representative) (Title) AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, DALLAS- FORT WORTH LOCAL (Labor Organization) amended, alleges that the Respondents have violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, 73 Stat . 519, by threatening, restraining, and coercing recording companies and recording artists en- gaged in commerce as independent contractors, such persons being secondary employers herein; an object of such acts and conduct being to force and require some of such persons to cease doing business with the primary employer herein. The answer of the Respondents, as amended, denying the allegations of violation, sets up five separate defenses. The salient issues here are two: Whether the recording artists named are employees or independent contractors; and whether placing the Charging Company on so-called "Unfair Lists," with notices thereof to members of the Respondents and to the recording companies, constitutes violation of Section 8(b)(4XiiXB) of the Act. The case was tried before me at Houston, Texas, on January 8 and 9, 1973. The General Counsel and counsel for the Respondents were heard in brief oral argument at the conclusion of the trial . Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Respondents, and by the amicus curiae. I regret that other cases and an inconvenient physical injury have delayed issuance of this decision. The General Counsel's position throughout was clear and to the point. Also helpful, although necessarily limited, was the amicus role. The efforts of the Respondents' counsel and its witnesses, carefully presented with tenacity and persistence, were worthy of a better cause. It should perhaps be noted that the answer's fifth defense argues for too much since, if sustained, it would to a great extent repeal the secondary boycott provisions of the Act. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS TI.:' OR) AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE COMPANY AND THE RESPONDENT LABOR ORGANIZATIONS 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 compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. DECISION LLOYD BUCHANAN, Administrative Law Judge: The consolidated complaint herein (issued October 27, 1972; charges filed September 18 and October 3, 1972), as The facts concerning the Charging Company, its status as a Delaware corporation, the nature and extent of its business in the production and distribution of television and radio products, including syndicated shows and recording artists' segments at Houston, Texas, and its engagement in commerce within the meaning of the Act are admitted; I so find and conclude. I also find and conclude that, as admitted, the Respondents are severally labor organizations within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES Under their respective constitutions , AFTRA and its Dallas-Fort Worth Local deal with theatrical performers and agents. At the request of the Dallas Local, the Regional Board in Los Angeles in turn requested that AFTRA's National Board place LK Productions and its president, Larry Kane, on the "Unfair List." On April 6, 1972, the Respondents requested LK to sign the Local's "letter of adherence," which set forth the terms AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS and conditions for the appearance of artists on the "Larry Kane Show" produced by LK Productions and a "side letter agreement" as an amendment thereto. LK refused to sign said "letter of adherence." On July 11, 1972, AFTRA, at the request of the Respondent Local, declared LK and Kane "unfair" and placed them on its National Unfair List; the Local on July 21 so informed LK; and AFTRA similarly informed its locals and some 29,000 members, the penalty being possible disciplinary action. Attached hereto and marked "Appendix B" is a letter from McCue, AFTRA's general secretary on the West Coast and executive secretary of the Los Angeles local, addressed to all AFTRA Franchised Agents. According to McCue this letter was sent about August 1. Further, according to McCue, a letter, copy of which is attached hereto and marked "Appendix C," was sent a few days later to record companies . (Later letters from AFTRA refer to "Appendix B" and "Appendix C" as sent about September 14; the first of these is itself dated August 1, while on the second there is no date.) Dated November 7 and attached hereto as "Appendix D" is a letter from McCue. This was sent pursuant to stipulation in the Federal district court to various record- ing companies generally in the Los Angeles area (two or three are outside that area) who are signatories to AFTRA's Phonograph Recording Code, more formally known as the National Code of Fair Practice for Phonograph Recording . "Appendix E" attached hereto was similarly sent to franchised agents. This letter does not disown or disclaim responsibility for "Appendix C"; and certainly cannot in view of the provisions of the AFTRA constitution and other documents , reinforced as they are by a booklet issued and distributed to its member by AFTRA, of which the following is an extract: Rogues and renegades A list of Unfair Producers is maintained by every one of AFTRA's Locals, and is published periodically in AFTRA Magazine, AFTRA's official publication, received by every member. This list represents employ- ers who have refused to sign the AFTRA Codes of Fair Practice, and defaulting employers who have been declared unfair by AFTRA. Accepting employment from any producer on the Unfair List is a violation of AFTRA rules. Anyone who accepts employment from an Unfair Producer risks disciplinary action by his Local Board which can mean fines and other penalties. Do not support those employers who would undermine your hard-won rights. Such a statement of policy distributed to all members and implemented as here is neither insignificant nor meaningless.' To call this document raptorial would be unfair only because equally or more significant instances could be cited. Followed as directed and as it was here, such a paradigm results in action proscribed by the Act. Indeed, the belated attempt pursuant to the Federal court stipulation to overcome the effect of the various earlier letters itself suggests identity of interest between I Cf. American Federation of Musicians, Local 76 (John C. Wakely), 202 NLRB No. 80. 163 AFTRA and the Local. All of this is confirmed by the Local's constitution and by AFTRA's, and by various documents sent by the Dallas Local to Kane, which need not here be detailed. Certainly, aside from all else, there was violation of Section 8(bx4)(iiXB) between the dates when Appendixes B and C were sent and November 7, when Appendixes D and E went out pursuant to the Section 10(1) proceeding stipulation. It is to be noted that acceptance by a producer, if itself compelled, does not make unlawful compulsion lawful.2 Nor does a finding of violation depend on a union's success, as was the case here, in its violative efforts. Similarly, the argument that because the Company is not now producing shows, performers being unavailable to it, an unlawful boycott cannot be found, would have us condone acts which, if violative, are successful. What is here said with respect to "Appendix D" as not being a disclaimer applies equally to "Appendix E." While "D" was addressed, as noted above, to signatories of the Phonograph Recording Code, "E" was sent to the theatrical agents in the Los Angeles area. As if all this were not enough, the following refers to both of the Respondents: RULE RE PERSONS PLACED ON AFTRA'S UNFAIR LIST, APPROVED OCTOBER 1939 A. The National Board may, from time to time, place on the Unfair List any employer or other person who refuses to abide by union conditions established by AFTRA, or is otherwise unfair to organized labor. B. No member of AFTRA may work for any employer or other person who is on the Unfair List, nor may any member of AFTRA accept an engagement to work on a live or recorded broadcast originating at any radio station that is unfair. C. The term "employer" or "person", as used herein, includes any sponsor, advertising agency, radio station, network, individual contractor, producer or any other person, firm or corporation which is unfair. D. The Unfair List shall be binding upon all Locals of AFTRA. When any Local Board proposes to place employers or other persons on the Unfair List, such proposal must be submitted to the National Board for approval, together with a statement of the reasons therefor. This was neither withdrawn nor modified. Although ancient, it indicates AFTRA's (and under its authority, its Locals) longstanding violative conditions. The argument that the Unions sought to advance legitimate union interests is certainly not determinative; it argues for too much as it would legitimatize many unlawful 2 Wooster Division of Borg- Warner Corporation, 113 NLRB 1288, 1326. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secondary boycotts. Nor do we have here a claim of antitrust violation.3 It will profit nothing to dote on purported analogies which may or may not be analogous. There is no need here for a learned disquisition or for detailed considerations to match the multiple allegations of the eight-page complaint or the equally detailed eight-page answer with its limited admissions and separate defenses, documentation, and preparation being thorough on both sides. With the early statement at the trial that the issue revolves around its right to maintain standards, the Union appeared to be arguing for virtual nullification of the secondary boycott provisions of the Act. But it was then recognized that a basic issue is the status of so-called top talent performers, whether employees of the Charging Party or independent contractors. It does not appear that any of the performers brought to our attention, whether serving the Charging Party or not, are its employees. The defense of maintenance of area standards is wholly inapplicable. Indeed that defense argues for too much since, were it to apply here, it would seriously limit if not effectively repeal the provisions of the statute which forbid secondary boycotts. No more relevant are contracts entered into between the Respondents and various employers other than the Charging Party in this case. The essential facts are that the Respondents have attempted to compel the Charging Party to abide by the terms of certain agreements to which the latter is not a party; that they demanded such adherence; and that, failing to obtain this, they issued and distributed the booklet from which we have quoted. Even if there be indicia of an employment relationship between performers and producers who are signatories to the National Network Code, and by deductions for disability insurance, social security, and taxes, these would not establish a similar relationship vis-a-vis nonsigner producers like the Charging Party herein. The artist is a peripatetic performer for whom the producer provides certain facilities while the performer is in Houston (not on his way to Houston), but whom he does not pay or control. Both, of course, want the artist to be at his best, the latter's reward being in the form of advertising and record sales. The manner or skill of performance is the performer's stock in trade. The Charging Party is not shown to have any control over whether the performer sings live or lip-synched. Certainly the facts, carefully detailed and reviewed, determine whether an individual is an employee or an independent contractor.4 The unfair list, prompted and supplemented by the respective constitutions and other documents noted, is a threat which is made specific when a person, as the charging Company here, is placed on it. Even if, as McCue mistakenly testified , he had never before seen the 1939 rule, he did not deny that it is among the rules in his possession, and it is altogether clear that the rule is observed. It was admitted that the rule is authentic and that it declares "in effect ... Do not work for an 3 Cf. Connell Construction Company, Inc. v. Plumbers Local Union No. 100, 483 F.2d 1154 (C.A. 5, 1973). unfair producer." It is one of some 20 rules adopted by the national board in the last four decades. As did McCue at first, Wolff, AFTRA's national executive secretary and chief executive officer , testified that he had never before seen the rule, which McCue had found in the files, had referred to in his pretrial affidavit, and had indeed relied on to support use of the unfair list. We have McCue's testimony that such rules are not self- implementing and, were further action necessary , he would see to it, as West CoastRegional Director, that further steps were taken. It was not shown that the rule as maintained was itself circulated among AFTRA members. But we have noted the booklet or so-called handbook published under Wolff 's direction a few years ago to help "indoctrinate" new members. It was admitted that this correctly states what a warning notice to an artist entails. Beyond the generalities concerning the maintenance of an "Unfair List," the fact is that the charging Company was placed on such list and notice of such placement was given to all AFTRA members as well as to approximately 140 franchised agents in the West Coast area who represent performing artists and to various recording companies early in August 1972. Despite the various documents cited, it is argued that the recording companies and performers were neither threat- ened nor coerced. They were merely cautioned (!) against doing business with the charging party and other "Unfair Producers," as by the "Unfair List" and the Unions' various rules and notices. The Unions' brief is a fine example of careful effort to maintain an invalid position. We can enjoy the words of one who has taken deep draughts at the Pierian spring. But even were nectar added, we would still seek a more substantial ambrosia or, reverting to an earlier age, manna for support. Not to slight the efforts of counsel, it may be noted that, aside from the issue of violation by the acts, )successful or not, of the Respondents, the charging Company has suffered deleterious effects by the refusal of at least one artist (Oliver) to perform on its shows. Although we were regaled at the trial with details in this connection, these need not be set forth here. Nor need we pursue the suggestion, not supported, that the charging Company's failure to continue to produce shows since the end of October 1971 was due to reasons other than those which concern us. The proclivity to violate, warranting a broad order herein, is sufficiently established by the general and widespread provisions and notices cited . The responsibility of the National Union is established by its constitution, the authority of McCue as its representative on the West Coast, and its exercise of authority and supervision throughout the country; by the fact that the "Unfair List" distributed by the National includes employers involved in unresolved disputes with the National or a local union; further, beyond notifying its locals and their members of those on the list, the National, we were told, acts to see that the locals notify their members. (Notification from the 4 United Insures ce Company of America, 154 NLRB 38, affd. 390 U.S. 254. AMERICAN FEDERATION OF TELEVISION & RADIOS ARTISTS 165 National down to the members, and affecting all who are "unfair," whether recording companies, franchised agents, performers, or of course producers countrywide is thor- ough.) Indeed, "all of the administrative decisions come from the National organization running through the AFTRA Local office."5 The National's activities and supervision are so close that the Local's executive secretary is paid by the National. [Recommended Order omitted from publication.] a Cf. American Federation of Musicians (Harrah 's Club, et all 195 NLRB 1104. APPENDIX B AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS Affiliated with A. F. of L., C.I.O. Los Angeles Local 1717 North Highland Avenue Hollywood, Calif. 90028 461-8111 NOTICE August 1, 1972 All AFTRA Franchised Agents are advised that Larry Kane Productions, Inc. of Houston, Texas and Larry Kane as an individual have been placed on the AFTRA "UNFAIR" list. Any AFTRA member who appears on the Larry Kane Show will be subject to charges of having performed services on behalf of an Unfair Producer with such action being detrimental to the welfare of AFTRA and its membership. Please caution your clients against appearing on The Larry Kane Show and call AFTRA if you have any requests to place talent on that syndicated show originating in ouston. APPENDIX C Claude L. McCue Executive Secretary AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS Affiliated with A. F. of L., C.I.O. Los Angeles Local 1717 North Highland Avenue Hollywood, Calif. 90028 461-8111 NOTICE AFTRA Code signatories are advised that Larry Kane Productions, Inc. of Houston, Texas and Larry Kane as an individual have been placed on the AFTRA "UNFAIR" list. Any AFTRA member who appears on the Larry Kane Show will be subject to charges of having performed services on behalf of an Unfair Producer with such action being detrimental to the welfare of AFTRA and its membership. Please caution your recording artists against appearing on The Larry Kane Show and call AFTRA if you have any requests to place talent on that syndicated show originating in Houston. APPENDIX D Claude L. McCue Executive Secretary AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS Los Angeles Local 1717 North Highland Avenue Hollywood, Calif. 90028 461-8111 Gentlemen: November 7, 1972 With reference to notice sent you on or about September 14, 1972 regarding LK Productions and Larry Kane, as an individual, having been placed on the AFTRA unfair list, this is notice to you that AFTRA will not do anything to interfere with the employment of any AFTRA artist on the '"Larry Kane Show" and will not take any disciplinary action against any AFTRA member who accepts such employment on the "Larry Kane Show" during the pendency of the matters involved in NLRB Cases Nos. 23-CC-463 and 23-CC-467. CLM:dac APPENDIX E Very truly yours, Claude L. McCue Executive Secretary AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS Los Angeles Local 1717 North Highland Avenue Hollywood, Calif. 90028 461-8111 Gentlemen: November 7, 1972 With reference to notice sent you on or about September 14, 1972 regarding LK Productions and Larry Kane, as an individual, having been placed on the AFTRA unfair list, this is notice to you that AFTRA will not do anything to, interfere with the employment of any AFTRA artist on the "Larry Kane Show" and will not take disciplinary action against any AFTRA member who accepts such employ- ment on the "Larry Kane Show" during the pendency of the matters involved in NLRB Cases Nos. 23-CC-463 and 23-CC-467. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Please inform your artists that no compensation is paid for Very truly yours, recording artists appearing or performing on the "Larry Kane Show" because there is no AFTRA code or contract Claude L. McCue in effect covering that program. Executive Secretary CLM:dac