American Federation Of Television And Radio Artists

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 197 American Federation of Television and Radio Artists, AFL-CIO and William F. Buckley, Jr., and M. Stanton Evans, Petitioners.' January 13, 1976 DECISION AND ORDER DISMISSING PETITION FOR DECLARATORY ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND PENELLO This is a petition filed on March 18, 1975, by Wil- liam F. Buckley, Jr., and M. Stanton Evans, herein called Petitioners, for a declaratory order pursuant to 5 U.S.C. §554(e). Thereafter, on April 21, 1975, American Federation of Television and Radio Art- ists, AFL-CIO, herein called AFTRA, filed a state- ment in response to the petition and on May 14, 1975, the Petitioners filed a memorandum in reply to AFTRA's statement, and attached an affidavit. On May 19, 1975, AFTRA submitted a rebuttal memo- randum to which, on June 9, 1975, the Petitioners filed a response. On November 5, 1975, the Board issued a notice of hearing advising the parties that oral argument would be held in the above-entitled proceeding. Pur- suant to permission granted by the Board, the Acting General Counsel on November 12, 1975, filed a brief of the Acting General Counsel as amicus curiae. The Petitioners on November 17, 1975, filed a memoran- dum in opposition to brief of General Counsel with attached affidavits and a Notice of Motion seeking to amend the prayer of relief. On November 17, 1975, the Petitioners and Re- spondent argued orally before the full Board.2 In pertinent part, the submissions of the parties, their oral- argument, and the Acting General Counsel's brief allege as follows: 1. Petitioner William F. Buckley, Jr., is the princi- pal participant on 'a national television show called "Firing Line," while M. Stanton Evans is a national news commentator on a radio program entitled "Spectrum." Both- are spokesmen for the conserva- tive point of view and are against any form of com- pulsory unionism. In order to participate in their re- spective television and radio programs, they negotiate employment contracts with their respective i Petition under 5 U S .C §554(e) which provides "The agency, with like effect as in the case of other orders , and in its sound discretion , may issue a declaratory order to determine a controversy or remove uncertainty " 2 AFTRA's Brief in Opposition for Respondent filed in the litigation be- fore the Supreme Court in Cases 74-313 and 74-314 (see fn 6, infra), sub- mitted to the Board after oral argument , has been considered but not the two letters submitted therewith or the subsequent correspondence related thereto broadcasting companies. 2. Over the years, AFTRA, a labor organization, has negotiated with the broadcasting companies col- lective-bargaining agreements known as Codes of Fair Practice which run over 3 years and are renewed periodically for 3 years.3 Both the television and ra- dio codes contain a union-shop provision obligating the broadcasting companies to hire AFTRA mem- bers in good standing or individuals who, within 30 days of employment, become union members and maintain their membership in good standing .4 3. Section 1 of article XVIII of the AFTRA con- stitution provides, in substance, that AFTRA may discipline members if they fail or refuse to comply with its constitution, bylaws, and orders.' 4. The Petitioners assert that the union-shop pro- vision requiring membership in good standing in AFTRA, together with the discipline provision of AFTRA's constitution, subject them to union disci- plinary action, which may result in their temporary or permanent exclusion from televison and radio should they express or otherwise conduct themselves contrary to the provisions of AFTRA's constitution. According to the Petitioners, broadcasting compa- nies construe such membership to mean what it ordi- narily does mean and historically has meant in the entertainment industry, to wit that performers must be "full fledged members" in order to be employed. 5. As indicated above, both Petitioners are against any form of compulsory unionism and are against being members of AFTRA or subject to its orders and control over their employment opportunities. However, both Petitioners allege that, in order to maintain their television and radio careers and under the duress of the codes and various threats by AFTRA and broadcasting companies that they could not be employed unless they were members of 3 Although the record herein refers only to the 1969-72 codes, the parties, in oral argument, admitted that a current code for 1972-1975 exists. 4 Sec 84 of the TV code and sec 57 of the radio code contain a clause entitled "Union Shop" which provides "It is agreed that during the term of this agreement, we will employ and maintain in our employment only such persons covered by this agreement as are members of the American Federa- tion of Television and Radio Artists in good standing or as shall make application for membership on the thirtieth (30th) day following the begin- ning of employment hereunder or the date of execution of this agreement, whichever is the later, and thereafter maintain such membership in good standing as a condition of employment " Art XVIII , sec 1, entitled "Discipline," reads as follows "[A]ny mem- ber who shall be guilty of an act, omission , or conduct which in the opinion of the Board is prejudicial to the welfare of the Association, or any of its Locals, or of any of its members, as such, or any member who shall fail to observe any of the requirements of the Constitution , or of any By-Laws, rules, regulations or orders lawfully issued by the Association , any Local or any duly authorized committee or agent of said Association or Local or any member who shall in any way be indebted to the Association or any Local thereof, may, in the discretion of the Board, be either ' fined, censured, sus- pended or expelled from membership The Board may discipline a member for each and every offense or violation, and no member shall be exempt from disciplinary action because of any previous action of the Board upon some other or different charge " 222 NLRB No. 34 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFTRA, they have tendered, under protest and against their, will, the initiation fees and periodic dues necessary to become members and maintain their membership in good standing in AFTRA and its ap- propriate locals. 6. Thereafter, the Petitioners instituted litigation in the Federal courts alleging that the codes and AFTRA's constitution constituted a prior restraint on their freedom of speech rights under the first amendment as commentators and news analysts. Al- though the district court basically -agreed with the Petitioners, the-final result of this litigation, after the Supreme Court denied certiorari and rehearing, was that, as the Second Circuit Court concluded, the ju- risdiction of the Board preempted that of the Federal courts because the acts. alleged were arguably unfair labor, practices under the National Labor Relations Act-.6 The Court of Appeals for the Second Circuit advised the Petitioners that they had selected the wrong forum and should take their cause to the Board, an administrative agency capable of granting declaratory relief, if the circumstances warranted, citing 5 U.S.C. §554(e)7 As a result, the instant peti- tion was filed seeking the type of relief that is nor- mally granted in a regular unfair labor practice pro- ceeding brought before this Agency.' 7. The Petitioners contend, in effect, that the membership requirement in the codes, construed in the entertainment industry as "full fledged" member- ship, threatens their access to television and radio in violation of their rights under Section 7 of the Act. They have not filed any unfair labor practice charges because, in their view, the Board's procedures are useless in view of their employment for short periods of time and their fear of being deprived of employ- ment if they resigned AFTRA membership and filed unfair labor practice charges. However, they are will- ing to participate in a hearing before an Administra- tive Law Judge or the Board itself in which all their unfair labor practice allegations can be litigated. 8. AFTRA contends, inter alia, that there is no warrant, under the Board's Rules and Regulations 9 6 Evans v American Federation of Television and Radio Artists, 354 F Supp 823 (1973); Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305 (C.A. 2, 1974), cert. denied 419 U S 1093 (1974), petition for rehearing denied 420 U.S 956 (Feb 24, 1975). 7 Buckley v. American Federation of Television and Radio Artists, supra at 313. S In its notice of motion , the Petitioners amended their prayer of relief to have the Board enter an order (1) declaring as null and void the union-shop provisions in sec. 84 of the TV code and sec 57 of the radio code, (2) declaring that the Petitioners, provided they have paid the uniformly re- quired periodic dues and initiation fees, may be employed by any network or broadcasting company signatory to the codes without interference or abjection by AFTRA on the ground of lack of membership, and (3) or- dering AFTRA to give notice of this order to all signatory networks and broadcasting companies, to all its members, and to all employees in the collective-bargaming unit on whose behalf it bargains. and by virtue of Section 3(d) of the Act granting the General Counsel final authority with respect to un- fair labor practice charges and complaints,10- for the Petitioners to bypass and ignore the Board's custom- ary unfair labor practice procedures by filing the in- stant petition under 5 U.S.C. §544(e) instead of filing unfair labor practice charges against- AFTRA and the contractually employing companies. According- ly, it contends that the Board lacks the power and jurisdiction to issue a declaratory order under 5 U.S. C. §554(e). Further, AFTRA argues that a declarato- ry order is also inappropriate because there is no controversy or uncertainty to be resolved by a de- claratory order since the law, as to the respective tights of the parties, is clear; i.e., all that AFTRA may require under a union-security clause validly au- thorized under Section 8(a)(3) of the Act is the pay- ment of periodic dues and initiation fees uniformly required of all members re "financial core member- ship." Accordingly, it urges that the petition herein must be dismissed. 9. In his amicus curiae brief, the Acting General Counsel, like AFTRA, argues that the declaratory order procedure is improper and unwarranted be- cause of the General Counsel's Section 3(d) final au- thority and because, under the Board's rules and de- cisions, declaratory orders and advisory opinions have been confined to questions concerning the Board's discretionary jurisdictional standards. In any event, he urges that the-Board not exercise its discre- tion under 5 U.S.C. §554(e) to issue a declaratory order because of the disputed questions of facts con- cerning the legal issue. 10. At the oral argument, counsel for AFTRA re- iterated the position it took during the course of the litigation in the Federal courts and in the instant pro- ceeding to the effect that AFTRA could not require "full fledged membership" from individuals, who, under the union-security provisions of the codes, pay the uniformly required dues and fees; i.e., it could only require "financial core membership: In addi- tion he offered to have AFTRA set forth this legal position in writing to anyone requesting it, including the Petitioners. Counsel for the Petitioners admitted that the law was clear that the Petitioners did not have to become members of AFTRA but merely had to pay the uniform dues and fees. However, he ar- gued, in effect, that the industry practice was to hire only full-fledged AFTRA members rather than "fi- g Subpart H of the Board's Rules and Regulations , Secs 102 98 to 102.104 deal with advisory opinions and Secs. 102 105 to 102 110 deal with declara- tory orders and both involve only the Board's discretionary monetary juns- dictional standards 10 Sec 3(d) of the Act provides in part as follows : "[The General Counsel] shall have final authority, on behalf of the Board, in respect of the investiga- tion of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the board " AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 199 nancial core members" who had made the appropri- ate dues and fees payments. He conceded that nei- ther of the Petitioners had requested AFTRA or the employing broadcasting companies to state, in writ- ing, that the payment of the uniformly required dues and initiation fees would satisfy the requirements of the union-shop provisions of the TV and radio codes without any requirement of full-fledged membership. The Petitioners thus have never actually tested AFTRA's policy in this respect. On the basis of the foregoing, the Board is of the opinion-that the instant petition filed under 5. U.S.C. §554(e) to issue a declaratory order must be dis- missed.ii With respect to the petition herein, there is no dispute, and the law is admittedly clear, that a union, pursuant to a union-security clause validly au- thorized under Section 8(a)(3) of the Act,12 can only require the payment of periodic dues and initiation fees after the statutory 30-day period and cannot, un- der-any circumstances, require "full fledged member- ship" or any other, type of membership;" and a ter- mination of employment for reasons other than nonpayment of such dues and fees would be a viola- tion of the Act. Likewise, a refusal to employ an indi- vidual who refused to become a "member" of AFTRA or any other union would also be a violation of the Act.14 Therefore, there is no justiciable issue to 11 No employer is a party herein and no charge has been filed against any employer or AFTRA 1 In Evans v. American Federation of Television and Radio Artists, supra, the Federal district court, at 829, noted that "[t]his provision [sec 84 of the code] . . . is specifically authorized by by Section 8(a)(3) of the National Labor Relations Act.-Sec. 8(a)(3) provides, in relevant part It shall be an unfair labor practice for an employer-(3) by discrimi- nation in regard to hire or tenure of employment or any term or condi-_ tion of employment to encourage or discourage membership in any labor organization. Provider, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ..to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agree- ment, whichever is the later Provided further, That no employer shall justify any discrimination against an employee for nonmember- ship in a labor organization. . (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of'the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retain- ing membership 13 N L.R B v General Motors Corporation, 373 U.S. 734, 743 (1963), citing Union Starch & Refining Co, v N L R B, 186 F 2d 1008 (C A. 7, 1951), enfg. 87 NLRB 779 (1949), cert denied 343 U S 815 (1951) 14 Chairman Murphy firmly believes that-without regard to the provi- sions of the National Labor Relations Act-if "membership" in AFTRA or any other union were a requirement for employment in the newspaper broadcasting industry, it would infringe on the first amendment and hence would be unconstitutional Cf, the dissenting opinion of Mr. Justice Doug- las in Buckley et al v American Federation of Television & Radio Artists, 419 U S. 1093 (1975). Chairman Murphy notes that the claims summarized by Member Fan- be decided or uncertainty to be dispelled by the is- suance of a declaratory order. In these circumstances, and without considering the other contentions of the parties including that respecting the power and jurisdiction of the Board to issue a declaratory order, the lack of a justiciable issue and absence of uncertainty as to the legal issue presented warrants dismissal of the instant petition. ORDER It is hereby ordered that the petition herein be, and it hereby is, denied. MEMBER FANNING,, concurring: r join my colleagues in dismissing'the petition for declaratory order. I do so not because AFTRA 'and Petitioners are in agreement as to what the law per- mits with respect to clauses conditioning employ- ment on union membership,"' but because I believe the controversy between them has been brought to us for decision outside the procedure prescribed in Sec- tions 3(d) and 10(b) of the Act.16 This jurisdictional defect is not overcome by Petitioners' invocation of section 5(e) of the Administrative Procedure Act [5 U.S.C. §554(e)]. That section merely enlarges the type of relief an agency may provide by authorizing the agency in the exercise of its sound discretion to issue declaratory orders in those matters it has juris- diction to decide in the first place. It neither enlarges the-agency's subject matter jurisdiction nor sets aside the statutory procedural requirements for invoking the agency's remedial powers. Accordingly, as the petition in this matter seeks to circumvent the procedural requirements of Sections 3(d) and 10(b) by seeking a determination as to events which are time barred by Section 10(b) and have' not been" investigated and made subject of a complaint by the General Counsel as required by Section 3(d), it must be dismissed. ning in In 15 relate to events alleged to have occurred in 1971 or earlier. Were it established that such demands were currently being made, Chair- man Murphy might well find it appropriate to grant the petition herein 15 The thrust of the petition is that in 1971 or earlier Respondent AFTRA or certain broadcasting companies threatened one or both Petitioners with loss of employment if Petitioners did not maintain actual membership in AFTRA thus demonstrating that AFTRA was a party to an arrangement, understanding, or practice with the broadcasting companies pursuant to which the companies would deny employment to nonmembers of AFTRA even though such nonmembers tendered payment of initiation fees and membership dues. 16 Sec 3(d) places in the General Counsel final authority over the investi- gation of charges and issuance of complaints based on such, charges. Sec I0(b) precludes issuance of complaints based on events occurring more than 6 months prior to the filing of a charge on which the complaint is based.