Garfield Theater

30 DECISIONS OF NATIONAL. LABOR RELATIONS''BOARD Moving Picture Projectionists Local No. 150, Inter- national Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (Dynasty Theater, Inc. d/b/a Garfield Theater) and David Dale Adams. Case 21-CB-8430 13 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 19 June 1984 Administrative Law Judge Earldean V. S. Robbins issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief' and the General Counsel filed excep- tions, a supporting brief, and a brief in opposition to the Respondent's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Moving Picture Projectionists Local No. 150, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, Los Angeles, Cali- fornia, its officers, agents, and representatives, shall take the action set forth in the recommended Order as modified. Substitute the following for paragraph 1(b). "(b) Causing or attempting to cause employers with whom it has collective-bargaining agreements ' The Respondent has filed a motion for reconsideration, rehearing, and reopening the record in which it seeks, inter alia, to reopen the record for the purpose of presenting evidence concerning wages paid to employees represented by the studio locals, and of wages paid to the pro- jectionists in the commercial theaters, and also to present evidence on the importance of geographic factors and employee expectations in defining the "particular industry" for comparison The Respondent' s motion is denied In so doing we note that the evidence which it seeks to adduce has not been shown to be either newly discovered or previously unavail- able z In sec I of her decision the judge stated that the Employer derives gross revenues in excess of $500,000 We note that the complaint alleges and the Respondent admits that the Employer derives gross annual reve- nues in excess of $500,000 In sec III,A of her decision the judge stated that employee Adams had worked within the Respondent's jurisdiction prior to September 1983 and that he commenced work with the Employ- er in September 1983, whereas it is clear from the record that the correct references should have been to September 1982 In that same section the judge incorrectly stated that the Union dispatched a replacement for Adams on August 13 rather than April 13 These inadvertent errors are insufficient to affect the results of our decision a We shall modify par 1(b) of the judge's recommended Order to cor- rect an inadvertent omission requiring' membership in the Respondent as a con- dition of employment to discharge employees be- cause of their failure to pay, as condition precedent to becoming a member of the Respondent, a $2000 initiation fee, or any other sum as an initiation fee which is excessive in all the circumstances." MEMBER HUNTER, dissenting in part. I agree with my colleagues that the Respondent violated Section 8(b)(5) by charging an initiation fee which is excessive under all the circumstances, and that the Respondent violated Section 8(b)(1)(A) and (2) by causing or attempting to cause Adams' discharge because of his failure to pay the excessive initiation fee. Contrary to my colleagues, however, I do not agree with the remedy recommended by the judge. The judge recommended that the Respondent be ordered to cease and desist from giving effect to its $2000 initiation fee as a condition of employment, and that the Respondent be ordered to refund that portion of all such excessive initiation fees collect- ed since 25 November 1982. The judge declined, however, to determine the exact amount which should be refunded, leaving such determination for the compliance stage of the proceeding. As noted by the judge, it is well established that the Board is not empowered to set the amount of a union's initiation fee, but is charged merely with the determination of which fees are discriminatory or excessive. Stage Employees IATSE Local 839 (Animated Film), 121 NLRB 1196 (1958). In all prior excessive initiation fee cases where the Board has ordered a refund, the fee found to be excessive was a recent increase of a prior existing fee not al- leged to be excessive, and accordingly the Board ordered the respondent to refund the amount of the increase. However, here, in contrast to the prior cases, the record indicates that the Respondent has been charging the same fee for several years, no recent increase is involved, and the record is devoid of evidence as to what a reasonable initi- ation fee would be. In finding that the Respondent's initiation fee was excessive, I note that the Respondent, al- though introducing evidence as to the initiation fees charged by other locals, failed to adduce evi- dence of the basis of those fees or the nexus be- tween the initiation fees charged by those locals and the wages earned by the employees affected. In short, the Respondent failed to present evidence to rebut the General Counsel's prime facie case that the Respondent's entire initiation fee was ex- cessive. Accordingly, our finding that the entire fee is ex- cessive dictates that the logical remedy to be im- 274 NLRB No. 6 STAGE 'EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER) posed is a refund of the entire fee. The 1 Respond- ent, as noted, failed to produce any evidence of the reasonableness of the fee or any part of it, and the Board lacks utterly any authority to set initiation fees. My colleagues' decision to allow the Re- spondent to produce such evidence in a compliance proceeding effectively creates an opportunity for the Respondent to relitigate the issue of excessive- ness presumably of part or even all of the fee, and potentially to destroy our substantive finding here. I refuse to allow the Respondent to relitigate the unfair labor practice found here in a compliance proceeding, and would conclude this matter by or- dering the Respondent to refund all initiation fees paid since 25 November 1982. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on February 23, 1984. The charge was filed by David Dale Adams (Adams) on May 25, 1983, and a copy was served on Moving Picture Projectionists Local No. 150, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canda (Respondent) on May 26, 1983. The complaint, which issued on January 6, 1984, alleges that Respondent violated Section 8(b)(1)(A), (2), and (5) of the National Labor Relations Act. The basic issue is whether Resondent's initiation fee is excessive. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties I make the following FINDINGS OF FACT I JURISDICTION At all times material herein, Dynasty Theater, Inc. d/b/a Garfield Theater (the Employer) is a California corporation engaged in business as a movie theater in Al- hambra, California. The Employer, in the normal course and conduct of its business operation, derives gross reve- nues valued in excess of $500,000 and annually pays film rentals valued in excess of $2000 to film distributors which obtain and distribute films produced outside the State of California. The complaint alleges, the parties stipulate, and I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 31 The facts herein are mostly undisputed. Respondent is the exclusive bargaining representative of the Employer's employees in a unit composed of all regular projection- ists, regular relief projectionists, and vacation projection- ists at the Garfield Theater Respondent and the Em- ployer are parties to a collective-bargaining agreement which requires membership in Respondent as a condition of employment for these unit employees. Prior to September 1983,1 Adams had worked within the jurisdiction of the Union as a projectionist on jobs of a temporary nature In September, he bid upon, and won, a full-time job as projectionist at Garfield Theater,2 which he commenced in September 1983 at a wage rate of $6.85 an hour for a 42-hour week. Shortly thereafter, Adams contacted Ralph Kemp, Re- spondent's business manager, and told him he did not have the $2000 Kemp asked if he could pay $50 a week Adams said no, because he was paying too much in dues3 already and he could not afford the additional pay- ment Kemp said he would try to get Adams extra work during the summer. Adams said okay. On April 12, Adams was notified by the Union that this was his last day of work. Alan Jacquish, Respondent's secretary- treasurer, admits that Adams was terminated on that date because he failed to join the Union. On August 13, the Union dispatched another projectionist to the Employer to replace Adams. On May 25 Adams filed the charge herein, and the complaint issued on October 28. On November 29, coun- sel for the General Counsel held a settlement conference with the parties Adams, Kemp, and counsel for Re- spondent were present Adams testified that, during this conference, Kemp said something to the effect that if this matter was litigated, Adams would never work again as a projectionist or work in the industry again. On cross- examination Adams testified that, within an hour after the conference concluded, counsel for the General coun- sel asked him if he recalled that statement by Kemp Adams further testified that he really did not recall the statement. Nevertheless he signed an affidavit which states, in pertinent part: During the discussion [at the settlement conference] Kemp told me that what we were talking about was the job and not the money and that if I wanted it he would put me back to work He told me that if the case was litigated I would never work as a projec- tionist anymore . As I recall he said that I would never work again. Thereafter, on redirect examination, he testified that counsel for the General Counsel refreshed his recollec- tion and that portion of his affidavit was, at the time, his ' Unless otherwise indicated, all dates hereinafter will be in 1983 2 Full-time projectionist jobs are obtained through a seniority bidding system 3 Apparently he was referring to the service fee paid by nonmembers 32 DECISIONS OF'NATIONAL^LABOR RELATIONSIiB6ARD best recollection of what was said in the" settlement con- ference. Kemp denies making such a statement. According to him, what he said was that the entertainment industry in which Adams apparently had chosen to work is an orga- nized industry and that Adams would have to join some union After being shown his prehearing affidavit, Kemp admits that the following statement contained in his affi- davit explains his intentions: What I was thinking when I made this statement4 was about time. If we were to be found guilty of the violations alleged, we could appeal to the Board and that might take two years. We could then, if found guilty, appeal to the 9th Circuit Court of Ap- peals and that might take two or three more years. What I was thinking of was if he wanted to work in the industry he would have to join a union anyway. My true intentions were to get him back to work as soon as possible. Kemp admits the Employer was told Adams refused to join the Union and that Adams was removed from the job. However, according to Kemp, as soon as he learned that Adams had been removed from the job, he arranged to have Adams reinstated since he felt there had been a failure of communication within Respondent's office in that the secretary-treasurer's office did not know of the arrangement between Adams and Kemp regarding Adams working summer jobs or extra jobs to pay his ini- tiation fee Following this settlement conference, Adams was rein- stated and attempted to withdraw the charges herein. However, the Regional Director refused to approve the withdrawal request. B. Conclusions The General Counsel argues that the $2000 initiation fee is excessive within the meaning of Section 8(b)(5) of the Act, which states that it shall be an unfair labor prac- tice for a labor organization (5) to require of employees covered by an agree- ment authorized under subsection (a)(3) the pay- ment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a find- ing, the Board shall consider, among other relevant factors, the practices and customs of labor organiza- tions in the particular industry, and the wages cur- rently paid to the employees affected. There is no contention herein that the initiation fee re- quired of Adams was discriminatory . However, it is well settled that the terms "excessive" and "discriminatory" in Section 8(b)(5) are used in the disjunctive and a find- ing of either is violative of the Act. Further, a determi- nation as to what constitutes an excessive fee is to be made on a case-by-case basis. Auto Workers Local 153 (Bendix Aviation), 99 NLRB 1419 (1951); JATSE Local 4 The affidavit does not purport to state what Kemp actually said 839 (Stage Employees) (Animaled Film), 121 NLRB 1196 (1958). As set forth above, the Act specifically provides that in determining whether fees are excessive, "the Board shall consider, among other relevant factors, the prac- tices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected." In the instant case, Respondent seems to be contending that it is in the motion picture industry and that the initiation fees required by the unions therein are the ones to be considered . The General Counsel con- tends that the "particular industry" herein is the projec- tion of motion pictures within commercial theaters. I agree with the General Counsel . The employees rep- resented by Respondent are involved in no way in the production of motion pictures.5 In reaching this conclu- sion, I have fully considered Respondent's contention that its initiation fees should be compared with that of IATSE Local 165 and Local 44, whose initiation fees are $2000 and $2050, respectively. Local 165 has jurisdiction over projectionists responsible for in -house screening in motion picture production studios . Thus, they are actual- ly a part of the motion picture industry . The same cannot be said for Respondent . Local 44 has jurisdiction over props or set decorators . There is nothing in the record to indicate in what respect the initiation fee re- quired by this local is a relevant factor to consider in de- termining whether the initiation fee required by Re- spondent is excessive unless it is determined that Re- spondent represents employees in' the motion picture in- dustry. I find that Respondent is not in that industry. Accordingly, I find that the relevant industry for com- parison is the projection of motion pictures within com- mercial theaters. The record establishes that in the south- ern California area initiation fees in that industry range from $450 in San Luis Obispo to $1000 in Long Beach and Garden Grove.6 The record contains no evidence as to the relationship between the initiation fees of these southern California locals and the wage rates paid in the industry. The legislative history indicates that the purpose of Section 8(b)(5) is to prevent unions, by the device of ex- orbitant initiation fees, from circumventing the prohibi- tion against closed shops contained in Sections 8(a)(3) and 8(b)(2). The Board, in attempting to achieve this purpose, has determined that the relevant wages are the starting wages since the employees who pay an initiation fee are those in the lowest wage bracket . However, the 5 I note that the Dictionary of Occupational Titles, at 1165, distinguishes between the amusement and recreation industry , which includes occupa- tions "concerned with providing amusement and recreation facilities, and presenting commercial entertainment in the flesh in motion picture and in broadcasting ," and the motion picture industry which is grouped with television and theatrical productions to include occupations concerned with the "production of motion pictures and radio and television broad- casts " 6 The following initiation fees are required by projectionists locals in the general southern California area IATSE Local 215 (Bakersfield)- $500, IATSE Local 297 (San Diego)-$625, IATSE Local 504 (Garden Grove and Santa Ana)-$1000, IATSE Local 521 (Long Beach)-$1000, IATSE Local 577 (San Bernardino)-$570, IATSE Local 709 (Ven- tura)-$500, and IATSE Local 762 (San Luis Obispo)-$450 STAGE, EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER) Board has never determined a standard ratio. Rather it has concluded.? . . that Congress intended the Board to examine alleged violations of [Section 8(b)(5)] on a case-to- case basis and in each case to decide whether "under all the circumstances," with due consider- ation for such "practices and customs," the initi- ation fees required were either excessive or discrimi- natory Nor does it follow, as the Trial Examiner suggests, that this interpretation would mean the ex- oneration of unlawful conduct because of long-es- tablished practice. The term "discrimination" as used in this context is a general term, involving such flexible concepts as reasonableness and motiva- tion as well as disparate treatement. Obviously, a union's past practice and customs were not intended by Congress to be controlling considerations. But Congress specifically provided that they were to be considered. Although the first 8(b)(5) cases considered by the Board involved only allegations of discriminatory fees, there have been several cases involving allegations that fees, or increases in fees, were excessive as well as dis- criminatory. In these latter cases, the Board has conclud- ed that the discriminatory nature of the fee is a signifi- cant factor to be considered in determining whether a fee is excessive Further, it has found fees to be excessive which were not also discriminatory within the meaning of Section 8(b)(5).8 These decisions indicate that, in determining what is excessive, the Board looks at what percentage in the ini- tiation fee is of an employee's weekly salary and how that compares to the initiation fee/wage ratio utilized by other labor organizations in the industry In Animated Film,9 an increase in initiation fee from $50 to $250 in order to discourage entrance into the animated cartoon industry in southern California was found excessive where starting wages ranged from $46.10 to $154 38 and other unions with weekly starting salaries of $55 50, $92.24, and $75 had initiation fees of $250, $200, and $250, respectively In finding the fees excessive and dis- criminatory in all the circumstances, the Board stated: The Respondent . . . manifested a clear intent to accomplish precisely the result which Section 8(b)(5) seeks to avoid-the maintenance of a closed shop through the imposition of an initiation fee in an amount calculated to discourage entrance into the industry [footnote omitted]. Moreover, the Re- spondent failed to demonstrate that the fivefold in- crease in its initiation fee was prompted by financial necessity, the cost of providing increased benefits or 7 Auto Workers Local 153 (Bendix Aviation), 99 NLRB 1419, 1421 (1951) 8 Boilermakers Local 749 (California Blowpipe & Steel Co),' 192 NLRB 502 (1981) 8 Stage Employees IATSE Local 839 (Animated Film), 121 NLRB 1196 (1958) 33 any other reason beyond its desire to promote a more closed union.4 4 We do not adopt, as it is in any event unnecessary to our de- - cision, the Trial Examiner's statement that "If it were to be shown that all labor organizations, wherever existing, uniformly and for years, followed a practice of charging an initiation fee of $250 from employees in whatever salary ranges in animated film indus- try, the conclusion reached could not be affected " In agreement with the trial examiner, the Board declined to make any recommendations as to the amount of any initiation fee which the respondent may establish, deem- ing that the Board is not empowered to set the amount of a union's initiation fees but is charged merely with the determination of which fees are discriminatory or exces- sive. However, it did order that all sums in excess of $50 paid as initiation fees be returned. In St. Louis Bakery,1° an increase in the initiation fee from $75 to $250 in order to enhance job security of members by restricting employment in the industry was i found excessive where starting wages were $60 a week" and a $100 cash bond was required by the employer upon commencing employment. Other labor organiza- tions in the area required initiation fees in the amounts roughly ranging from 27 to 80 percent of the starting wage for a week. The Board ordered the union to refund all sums in excess of $75 paid as initiation fees. In Triangle Publications,12 an increase in initiation fee from $50 to $500 in order to restrain the employer in the hiring of part-time employees who were not union mem- bers was found excessive where the weekly starting salary ranged from $90 to $95 a week; part-time employ- ees who had no guarantee of such earning and tempo- rary employees had no guarantee of continued employ- ment, no other union in the area charged comparable fees, the next highest being $150; and the increase was tenfold. As to this latter factor, the Board stated (135 NLRB at 636). An increase in initiation fees from $50 to $500 is not substantial and, to one seeking employment in the industry, may well be so staggering as to preclude acceptance of employment. Such an increase de- mands explanation to bar a presumption that it is not at least excessive. The Board further found (id. at 637 fn. 14) that the union offered insufficent evidence in support of its claim that the initiation fee was required to ensure enough income to enable it to operate and concluded that "in any event . . the Union's financial problems may not be solved by imposition of a fee which is either discriminatory or ex- cessive under Section 8(b)(5)." The union was ordered to refund all sums in excess of $50 paid as initiation fees. 10 Teamsters Local 611 (St Louis Bakery Employers), 125 NLRB 1392 (1959) 11 Ultimately an employee could average as much as $8595 a week 12 Television & Radio Broadcasting Studio Employees Local 804 (Triangle Publications), 135 NLRB 632 (1962), affd 315 F 2d 398 (3d Cir 1963) 34 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD In American.''Broadcasting, 13 ' a New .York union's .-in- crease in-initiation fee from a flat $150 for `everyone to a sliding scale 'of -$150 for employees-with weekly wages under $1t19, $500 for those with weekly wages from $119 to $167 99, $750 for those with weekly-wages.€rom 6168 to $211.99, and $10000• for those with weekly=wages of $212 and above was implemented in order to 'restrict the hiring of temporary and vacation relief employees Most vacation relief employees received weekly wages of $130 to $140. Other unions in the industry located in New York, Chicago, and Los Angeles required employees who make wages comparable to those of the employees involved therein to pay initiation fees ranging from $50 to $125. The trial examiner concluded (164 NLRB at 245). Indeed, it is fair to say that any initiation fees adopt- ed from discriminatory motives must in the nature of things be excessive. The discriminatory object can hardly be otherwise accomplished. It is also ap- parent that an increase in initiation fees of more than threefold at the minimum and more than six- fold at the maximum must be excessive, at least pre- sumptively. However, the Union produced no evi- dence to show that the increase in initiation fees was justified under all the circumstances [footnote omitted]. It also seems quite immaterial that . . . the Union may have been willing to accept payment of initi- ation fees in installments, or that employees of NBC and ABC may work overtime, and thus earn pay in excess of their base salaries . The reasonableness of the initiation fees must be judged in terms of their possible rather that their actual effects, and in terms of the power which they gave the Union rather than in terms of the actual exercise of that power The Board adopted the trial examiner's finding and con- clusions, but noted at footnote 2 that in adopting the conclusion that the initiation fees were excessive it need not rely on the findings with respect to the fees charged by the unions in Chicago and Los Angeles. The union was ordered to refund all sums in excess of $150 paid as initiation fees In New Orleans Steamship Association , 14 an increase in initiation fee from $500 to $10001-5 in order to discourage the entrance of casuals into the stevedoring industry in New Orleans was found excessive where the weekly starting wage was $170 and a sister local in the same port required an initiation fee of $500.16 The union was ordered to refund all sums in excess of $50017 paid as initiation fees. 15 Broadcast Employees NABET Local 11 (American Broadcasting), 164 NLRB 242 (1967) 14 Longshoremen ILA Local 1419 (New Orleans Steamship Assn), 186 NLRB 674 (1970) 15 During the preceding 8 years, the initiation fee fluctuated from $270 for a period of about 4 years to $500 for 18 months to $270 for 8 months to $500 for 1 year In National. Broadcasting' 8 an increase in initiation fee from '2 weeks' salary ($450 to $550) to 4 weeks' salary ($900 to' $1100) in order to discourage the hiring of non- members was found excessive. A national cross-section of initiation fees in the graphic arts industry reveals initi- ation fees ranging from approximately $4 to $500 and wage rates roughly comparable to those herein except for three unions with significantly lower wages whose initiation fees were at the lower end of the range and one with substantially higher wages and a $500 initiation fee. The union was ordered to refund all sums in excess of 2 weeks' salary as initiation fees. In California Blowpipe, supra, 192 NLRB 502 (1981), the union required an initiation fee of $200 for mechanics and a $150 fee for helpers and a reinstatement fee from dues-delinquent members of $300 for mechanics and $250 for helpers. The collective-bargaining agreement provid- ed wage rates of $4 41 for a journeyman with a 30-cent- an hour shift differential. Helpers received $3 to $3.50 an hour with shift differentials up to 26 cents. No other union had a reinstatement fee in excess of its initiation fee. There was no contention that the reinstatement fee was discriminatory The trial examiner concluded (id at 507-508): Here, then the circumstances to be considered in- clude (1) the penal nature of the higher reinstate- ment fee, (2) the fact that $250 is equal to some- thing close to 2 weeks' take-home pay for at least some of the employees [footnote omitted], a higher percentage of take-home pay than is required by other unions in the area, including sister locals of Respondent, and (3) the fact that, in the industry here involved and in the general area of Respond- ent's location, nine other unions, including four sister locals of Respondent, have lower reinstate- ment fees than Respondent and have reinstatement fees no higher than their original initiation fees al- though their members' rates of pay are the same as here Considering all the circumstances, then I con- clude and find that Respondent's reinstatement fee . . . was excessive under all the circumstances, within the meaning of Section 8(b)(5) of the Act [footnote omitted]. The Board adopted his finding and, since no contention was made that the initiation fee was excessive, the union was ordered to refund that portion of the reinstatement fee in excess of the amount required for initiation fee. In Firestone Plastics,19 the Board adopted the adminis- trative law judge's finding that an increase in initiation is The trial examiner considered immaterial in view of the Board's footnote in American Broadcasting, supra, 164 NLRB 242, the initiation fees required by sister locals along the Gulf Coast in Texas, Alabama, and Mississippi 17 The General Counsel conceded that an initiation fee of $500 was not excessive in this case 18 Stage' Employees IATSE Local 841 (National Broadcasting), 225 NLRB 994 (1976) 19 Teamsters Local 326 (Firestone Plastics Co), 253 NLRB 551, 555 (1980) STAGE EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER) fee from $100 to $300 was not excessive. Initiation fees required by other unions ranged from $5 to $50 and most of the wage rates were comparable to the wage rates therein. There was no contention that the fee was dis- criminatory However, the administrative law judge con- cluded: . . unlike a "discriminatory" initiation fee, which embraces elements of motives and of disparate treat- ment, an "excessive" initiation fee has a more abso- lute meaning which does not depend upon its motive, its purpose, or its object. The administrative law judge further concluded (id. at 557) that the $250 difference between the respondent's initiation fee and the next highest fee was not excessive, stating: The object of the statute is to outlaw initiation fees which are so exorbitant that they discourage em- ployment. The most logical factor bearing upon this object is the relationship between the initiation fee and the wages-certainly not the initiation fee in other plants. Of what significance then is the factor of the practices and customs of labor organizations in the particular industry? I believe this factor comes into play less to assist in identifying unlaw- fully high initiation fees than to justify initiation fees that may be high in relation to wages, as, for in- stance, in the construction trades [footnote omitted]. The Board adopted the administrative law judge's find- ing that the initiation fee, which was 109-112 percent of the weekly wages,20 was not excessive but found it un- necessary to rely on the administrative law judge's state- ment that a review of Board cases led him to conclude that an initiation fee which is less than two times the weekly earnings of the employees affected is not, absent unusual factors, excessive. Although there are few cases involving excessive fees without an allegation of discriminatory intent, those cases indicate that in determining what is excessive where the amount of the fee is not used to achieve the object Section 8(b)(5) seeks to avoid, the Board accords considerable weight to the ratio between the initiation fee and the weekly starting wages of the affected em- ployees. Slightly more than the wage for 1 week has been found not excessive. The only case where the Board found fees excessive in the absence of an allegation of discrimination within the meaning of Section 8(b)(5) was California Blowpipe, supra, 192 NLRB 502 (1981), where a reinstatement fee for dues-delinquent members which was $100 higher than the initiation fee was found excessive. In all other cases, the initiation fee was increased with an intent to achieve the object Section 8(b)(5) seeks to avoid-main- tenance of a closed shop through the imposition of an initiation fee in an amount calculated to discourage en- trance into the industry. Yet there is language in some of those decisions that can afford some guidance in deter- mining whether a fee is excessive in a nondiscriminatory 20 Weekly wages were $268 29 to $276 49 35 context. Thus, in Triangle Publications, supra, 135 NLRB 632 (1962), where the initiation fee was increased tenfold to $500, which was in excess of 5 weeks' salary, the Board stated that to one seeking employment in the in- dustry, the fee may well be so staggering as to preclude acceptance of employment Further, the Board conclud- ed such an increase demands explanation to bar a pre- sumption that it is not at least excessive. Similarly a threefold to sixfold increase in initiation fee which was roughly 3-1/2 to 4-1/2 weeks' salary was found presump- tively excessive. American Broadcasting, supra, 164 NLRB 242 (1967). Here, the $2000 initiation fee amounts to about 7 weeks' salary. I find this presumptively excessive. Re- spondent's sole argument in support of the reasonable- ness of the fee is that a studio projectionists union in the Los Angeles area also has a $2000 initiation fee and a set decorators union in Los Angeles has a $2050 initiation fee. However, there is no evidence as to the wage rates prevailing in the collective-bargaining agreements of these unions and both of them are in the motion picture industry-an industry devoted to the production of motion pictures. Respondent specifically argues that the initiation fee charged by the other Los Angeles projectionists union is relevant because: Local 150 is subject to the same intense scrutiny by producers, directors, distributors and actors of the films they have produced, directed or acted in since they go to the theaters in the Hollywood-Los Angeles area As a consequence in collective bar- gaining with the employers, there is an implied un- derstanding that the quality of the projectionists must bear a higher standard since they are subject to greater and immediate criticism. I find this argument unpersuasive, particularly since the record contains no supporting evidence beyond a conclu- sionary statement. Further, as set forth above, I conclude that Respondent is not in the motion picture industry Further, even assuming arguendo that the two unions referred to by Respondent are in the same industry as Respondent and/or that the circumstance described by Respondent, as set forth above, is a relevant factor to be considered, I conclude that the evidence as to the prac- tice and customs of these two unions is insufficient to overcome the impact of the ratio of Respondent' s initi- ation fee to wages, which I find is so disproportionate that the fee must be considered exorbitant and one which to those seeking employment as projectionists in com- mercial motion picture theaters "may well be so stagger- ing as to preclude acceptance of employment." Triangle Publications, supra, 135 NLRB 632 (1962). Accordingly, I find that Respondent's initiation fee of $2000 is excessive. I further find that by causing the Em- ployer to discharge Adams because of his failure to pay this excessive initiation fee, Respondent has violated Sec- tion 8(b)(2) and (1)(A) of the Act. The complaint also alleges that Kemp's statement to Adams at the. settlement conference constituted a threat in violation of Section 8(b)(1)(A) of the Act. I credit 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kemp's denial that he made such a statement. In this regard I found Adams' testimony to be contradictory and that he seemed to be susceptible to suggestion. I therefore conclude, particularly in view of his uncontra- dicted testimony that his recollection required refreshing by way of leading questions at a time less than 1 hour after the statement was allegedly made, that I cannot rely on his prehearing affidavit. Accordingly, I find that the General Counsel has failed to establish that Kemp threatened Adams with loss of employment, in violation of Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Dynasty Theater, Inc. d/b/a Garfield Theater, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act, 3. By requiring as a condition of employment an initi- ation fee in excess of 700 percent of the weekly salary of lower paid employees, Respondent has violated Section 8(b)(5) of the Act. 4. By causing the discharge of David Dale Adams for failure to pay an excessive initiation fee, Respondent has violated Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of the Act, I shall recommend that it be ordered to cease and desist there- from and that it take such affirmative action as will ef- fectuate the purposes of the Act. Having found that Respondent has been charging an initiation fee which I have concluded is excessive, I shall recommend that Respondent cease giving effect to its re- quirement of a $2000 initiation fee as a condition of em- ployment, and that Respondent refund to all employees of employers with whom Respondent has collective-bar- gaining agreements containing a union-security clause, valid under Section 8(a)(3) of the Act, that portion of all initiation fees paid to Respondent on or since November 25, 1982, which is excessive, with interest thereon as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). Hence I must consider what is the appropriate amount of such refund Board cases give no definitive guidelines since, in all of the cases where the Board has found fees to be excessive, the fee involved was a recent increase. Thus the restitution remedy was simply to refund all sums paid in excess of what was charged prior to the un- lawful increase. Here there is no such base figure. Fur- thermore, it is well established that the Board is not em- powered to set the amount of a union's initiation fee but is charged merely with the determination of which fees are discriminatory or excessive. Stage Employees IATSE Local 839, supra, 121 NLRB 1196 (1958). Yet it is clear that restitution of such fees to the extent they are exces- sive is necessary to effectuate the purposes of the Act. The General Counsel contends that a proper and ap- propriate remedy may, be fashioned by reviewing prior Board cases in the area and the fees charged by other southern California unions in the industry without deter- mining whether those fees, or the level reached after res- titution by Respondent, are per se not excessive. The General Counsel specifically argues that Respondent should be ordered to refund all sums in excess of 2 weeks' salary ($575). In choosing this figure, the General Counsel relies upon dicta in Firestone Plastics, supra, 253 NLRB 551 (1980), where the administrative law judge stated that absent unusual circumstances a fee less than twice the weekly earnings of the employees affected is not excessive. However, the Board found it unnecessary to rely on that conclusion. The General Counsel further argues that this amount is appropriate since, when com- pared with the fees charged by other unions in the indus- try, it is within 10 percent of the median fee of $625, with three labor organizations charging less and four charging mote than $575. Respondent does not address itself to this question. Although there may be a certain logic to the General Counsel's position, I find that the record contains insuffi- cient evidence to determine what, in the circumstances, would constitute appropriate restitution, particularly since the record is devoid of evidence as to the wage structure in the collective-bargaining agreements of these other unions and also of evidence as to whether relief projectionists represented by Respondent ever successful- ly bid on multiscreen jobs2 i which apparently carry a higher wage rate. If so, it may be that a sliding scale should be considered. Further, although I considered the possibility insufficient to affect my conclusion that the fees herein are excessive, it may be, as noted above, that, in all the circumstances, the initiation fees of the studio projectionist union in Los Angeles and its ratio to wages is a relevant factor to consider along with those of other unions in southern California in the commercial theater industry. Accordingly, I shall recommend that the exact amount of the restitution order be left to the compliance stage of this proceeding. I shall further recommend that Respondent make David Dale Adams whole for any loss of earnings suf- fered by him as a result of Respondent's discrimination against him in the manner set forth by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as prescribed in Florida Steel Corp., supra, 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, Moving Picture Projectionists Local No 150, International Alliance of Theatrical Stage Em- 21 Garfield is a single screen theater 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses STAGE EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER) ployees and Moving Picture Machine Operators of the United States and Canada, Los Angeles, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Requiring payment of $2000 as an initiation fee from employees of employers with whom Respondent has collective-bargaining agreements requiring member- ship in Respondent as a condition of employment, or re- quiring any other sum as initiation fee which is excessive under the circumstances. (b) Causing or attempting to cause employers with whom it has collective-bargaining agreements requiring membership in Respondent as a condition of employment because of their failure to pay, as a condition precedent to becoming a member of Respondent, a $2000 initiation fee, or any other sum as an initiation fee which is exces- sive in all the circumstances (c) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed to them in Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Refund to all employees of employers with whom it has collective-bargaining agreements containing a union-security clause, valid under Section 8(a)(3) of the Act, that portion of all initiation fees paid to it on or since November 25, 1982, which is excessive, with inter- est in the manner described in The Remedy section of this decision. (b) Make whole David Dale Adams for any loss of earnings suffered by him as a result of the discrimination against him, with interest, in the manner described in The Remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its office in Los Angeles, California, copies of the attached notice marked "Appendix "23 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Mail to the Regional Director for Region 21 copies of the attached notice marked "Appendix" for posting by employers with whom it has collective-bargaining agree- ments containing a union-security clause, valid under Section 8(a)(3) of the Act, if the employers are willing to 23 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 37 do so. Copies of the notice to be provided by the Re- gional Director, after being signed by a representative of Respondent, shall be forthwith returned to the Regional Director for posting. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT require payment of $2000 as an initi- ation fee from employees of employers with whom we have collective-bargaining agreements requiring union membership as a condition of employment, or require any other sum as initiation fee which is excessive under the circumstances. WE WILL NOT cause or attempt to cause employers with whom we have collective-bargaining agreements re- quiring union membership as a condition of employment to discharge employees because of their failure to pay, as a condition precedent to becoming a union member, a $2000 initiation fee, or any other sum as an initiation fee which is excessive in all the circumstances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL refund to all employees of employers with whom we have collective-bargaining agreements contain- ing a union-security clause, valid under Section 8(a)(3) of the Act, that portion of all initiation fees paid to us on or since November 25, 1982, which is excessive, with inter- est. WE WILL make whole David Dale Adams for any loss of earnings suffered by him as a result of the discrimina- tion against him, with interest. MOVING PICTURE PROJECTIONISTS LOCAL No. 150, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA