Wolf Trap Foundation For The Performing Arts

1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wolf Trap Foundation for the Performing Arts and Regina M. Becker Ford's Theatre Society and Regina M. Becker 513 13th Street, N.W., Inc., t/a Warner Theatre and Regina M. Becker The New National Theatre Corporation, t/a Nation- al Theatre and Regina M.'Becker International Alliance of Theatrical Stage Employees and Moving Picture Operators of The United States ,and Canada, Local 22, AFL-CIO (Wolf Trap Foundation for the Performing Arts) and Regina M. Becker International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO (Ford's Theatre Society; The New National Theatre Corporation, t/a National Theatre; 513 13th Street, N.W., t/a Warner Theatre) and Regina M. Becker. Cases 5-CA-13813, 5-CA-13836- 1, 5-CA-13836-2, 5-CA-13836-3, 5-CB-3889, and 5-CB-3898 13 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On 18 September 1986 Administrative Law Judge Bernard Ries issued the attached supplemen- tal decision affirming the attached previous deci- sion dated 28 December 1983. The Respondents' filed exceptions and supporting briefs, and the Gen- eral Counsel filed cross-exceptions and a brief in support of the exceptions. The Respondent Union filed an answering brief to the cross-exceptions of the General Counsel, and the Charging Party filed an answering brief to the Respondents' exceptions. The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 only to the extent consistent with this decision, to modify his remedy,3 and to adopt the recommended Order as modified. ' All Respondents but Warner Theatre filed exceptions The allega- tions concerning Warner Theatre were dismissed by the judge Respond- ent Ford's Theatre has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and posi- tions of the parties 2 In the absence of exceptions thereto, we adopt pro forma the judge's 8(b)(1)(A) findings regarding the statements made by the Union's business agent, Frederick Tepper, to the alleged supervisors, Allan Perry and Ronald Cuffe 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) The judge found, and we agree, that the Re- spondent Union and the Respondent Employers Wolf Trap and Ford's Theatre violated Sections 8(b)(1)(A) and 8(a)(1), respectively, by maintaining provisions in their collective-bargaining agreements which gave preference in employment to union members over nonmembers. The judge further found that these parties and Respondent National Theatre had an arrangement whereby the Union, through an exclusive hiring hall, referred stagehand employees to work with the Respondent Employ- ers He concluded that in the course of operating the hiring hall, the Union, in violation of Section 8(b)(2), refused to refer Regina Becker, the Charg- ing Party, to employment because she was a female nonmember of the Union. The judge further con- cluded that -by maintaining the hiring hall arrange- ment with the Union by which Regina Becker was discriminated against, the Respondent Employers violated Section 8(a)(3). For the reasons set forth below, we agree with the judge that Ford's Thea- tre and Wolf Trap violated Section 8(a)(3) of the Act. We disagree, however, with his conclusion that National Theatre violated Section 8(a)(3). As indicated, the record establishes that the Re- spondent Employers staffed stagehand positions with referrals from the Union. Such a hiring hall arrangement is not unlawful per se, but may become so if operated in a discriminatory manner unrelated to legitimate union concerns. Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961). With re- spect to Regina Becker, the judge properly con- cluded that the Union unlawfully administered the hiring hall by refusing to refer her because she was not a member of the Union and because she was a female. Acknowledging that he was bound by Board law, the judge held the Respondent Em- ployers strictly liable for the unlawful conduct of the Union despite the lack of any evidence that the Employer had actual knowledge of the Union's dis- criminatory treatment of Becker. As noted by the judge, the Board has adhered to the principle of strict liability in the operation of referral systems, holding that "when an employer delegates hiring to a union by utilizing a union re- ferral-system to obtain its employees, it is responsi- ble if the union operates the system in a discrimina- tory manner. This is so even if the employer has no actual knowledge of the Union's discrimination." Frank Mascali Construction G. C P. Co., 251 NLRB 219, 222 (1980), enfd. mem. 697 F.2d 294 (2d Cir. 1982); Q. VL. Construction, 260 NLRB 1096 (1982). After careful consideration, we have decided to reject this principle The Board's past practice of imposing strict li- ability on employers in hiring hall cases assumes 287 NLRB No. 103 WOLF TRAP FOUNDATION 1041 the existence of a principal-agent relationship be- tween an employer and a union. This assumption was articulated by the Court of Appeals for the Second Circuit in Morrison-Knudsen Co. v. NLRB, 275 F.2d 914, 917 (2d Cir. 1960), which stated: [R]egardless of the extent of their knowledge we agree with the Board that an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of supplying the men to be employed. The Local acted as agent for the petitioners in selecting the men to be hired. Its discriminatory acts . . . are properly chargea- ble to the agent's principal as discriminatory acts by it. The Court of Appeals for the District of Colum- bia Circuit in Lummus Co. v. NLRB, 339 F.2d 728 (D C. Cir. 1964), rejected this application of the doctrine of respondeat superior on the ground that it must be applied selectively in the field of labor relations. The doctrine, as the court explained, is premised on the concept that the agent is under the complete control of the principal; yet, in the con- text of the relationship between employer and union, the "basic thesis for the whole of modern thought in this area is that the representative of the employees is not, cannot be, and must not be under the complete control of the employer." Id. at 735. Given the special nature of labor relations, the court rejected the imposition of strict liability on employers in referral cases, finding instead that "in applying the responsibility of an employer for the acts of a union the facts of the case must be taken into account. The conclusion must be realistic in the circumstances." Id. at 737. The court conclud- ed that no liability should be imposed when an em- ployer does not have actual notice, or may not rea- sonably be charged with notice of a union's dis- criminatory operation of a referral system. We agree with the Lummus rationale and find that its emphasis on the specific circumstances of each re- ferral case is more consonant with the reality and special character of-labor relations than is the prin- ciple of strict liability.4 ° In so holding, we note that the Supreme Court, in a case arising under 42 U S C § 1981 alleging racial discrimination in the operation of an exclusive hiring hall, endorsed the Lummus rationale and held that employers which were parties to a discriminatorily operated hiring hall could not be held in violation of § 1981 by application of the traditional respondeat superior doctrine General Building Contractors Assn v Penn- sylvania, 458 U S 375 (1982) Specifically, the Court stated that "the rela- tionship between an employer and the union that represents its employees simply cannot be accurately characterized as one between principal and agent or master and servant Indeed, such a conception is alien to the fundamental assumptions upon which the federal labor laws are struc- tured " Id at 393 Applying this standard to the present case, we find that National Theatre has not violated Section 8(a)(3) and (1) of the Act. As the judge found, Na- tional Theatre had no actual knowledge of the Union's discriminatory conduct. Nor could it rea- sonably be charged with notice of the Union's con- duct. During the relevant period covered by the complaint, National Theatre had no written collec- tive-bargaining agreement with the Union. Instead, it was bound to an unwritten lawful exclusive hiring hall system with the Union.5 There was, therefore, nothing on the face of a written contract which would have alerted National Theatre to pos- sible discriminatory practices by the Union. In these circumstances, we dismiss the allegation that National Theatre violated Section 8(a)(3) and (1) of the Act. We reach a different result, however, with re- spect to Wolf Trap and Ford's Theatre. Although these Respondents had no actual knowledge of the Union's unlawful conduct, we find that they are reasonably charged with notice thereof. We note that, in Lummus, the court observed that "where the agreement itself, either on its face or by refer- ence to another agreement or to union rules, re- quires discrimination, or where the discriminatory acts were widespread or repeated or notorious, the employer might reasonably be charged with notice of those acts." Id at 737. Such was not the situa- tion in Lummus, and therefore the court was not required to make a decision regarding notice. Here, however, Wolf Trap and Ford's Theatre had writ- ten collective-bargaining agreements with the Union which expressly required discrimination. Both agreements were facially invalid in that they contained unlawful "closed shop" provisions which required all work covered by the contract to be performed by union members. Although the hiring hall arrangement itself was not unlawful, we con- clude that the inclusion of the unlawful closed-shop provision in the contract is sufficient ground to charge Wolf Trap and Ford's Theatre with notice that the Union, in the operation of the hiring hall, might be preferring its own members to the exclu- sion of nonmembers In so concluding, we are aware that there is evi- dence that the Union has referred nonmembers and women to stagehand jobs notwithstanding the con- tractual closed-shop language. We are also aware that the record shows that Business Agent Tepper 5 In this regard we note, that the General Counsel withdrew par 15 of the complaint alleging that National Theatre and the Union entered into or maintained a contract containing an unlawful closed-shop provision The General Counsel stated that during the 10(b) period there was no contract between the parties and that an executed agreement did not become effective until February 1982 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD refused to refer Becker for a number of reasons, i.e., because she was a woman, she was not a union member, and she was the wife of the business agent's nephew. We note, however, that the judge found that "the lack of a Union card played a criti- cal part" in Tepper's refusal to refer. It is true both that these two Respondents might not have been on notice that Tepper would also have biases based on factors other than union membership and that the Union's occasional referrals of nonmembers might have led these Respondents to believe that the Union was not strictly enforcing the unlawful clause. Nonetheless, they are chargeable with knowledge that the agreement contained a clause authorizing, if not requiring, such discrimination. Tepper therefore had contractual support for his imposition of the union card requirement. It is not unreasonable to charge the Respondent theatres with notice that a party to the agreement might seek, at least on occasion, to enforce the plain meaning of the agreement and to hold them liable when such a foreseeable consequence occurs. Accordingly, we find that Respondents Wolf Trap and Ford's Theatre violated Section 8(a)(3) and (1) of the Act and are jointly and severally liable with the Respondent Union for the discrimi- natory operation of the referral arrangement with the Union. 6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL- CIO, Washington, D.C., its officers, agents, and representatives, and the Respondents, Wolf Trap 8 It is reasonable to make the Employers jointly and severally liable in view of the fact that, under our new standard, any violation we find will be based, as here, on evidence of knowledge of conduct or contractual provisions that make the discrimination in question reasonably foreseea- ble During the period when we were finding violations against employ- ers on the basis of a strict liability theory, it was reasonable in some cases to impose only secondary liability on the employers Thus, for example, in Q VL Construction, 260 NLRB 1096 (1982), the Board held the re- spondent employer only secondarily liable because it concluded that "even if Q V L had investigated the Union's operation of the referral system, it would not have discovered the discrimination against [discri- minateel McElhaney " Id at 1097 And in Wisiner & Becker, 228 NLRB 779, 781 fn 7 (1977), remanded on other grounds 603 F 2d 1383 (9th Car 1979), the Board imposed only secondary liability on an employer who had made a good-faith effort to resist the union s demand for certain un- lawful discharges and had complied with the demand only after it had taken the matter to arbitration and lost In the present case, however, in which the evidence shows that Re- spondents Wolf Trap and Ford's Theatre signed contracts that were maintained and enforced within the 10(b) period and that contained the unlawful clause that gave the Union warrant for the discrimination it practiced against Regina Becker, it is appropriate to make those Re spondents jointly and severally liable with the Union for any backpay due Becker because of the discriminatory operation of the hiring hall Foundation for the Performing Arts and Ford's Theatre Society, Washington, D.C., their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph C. 2. Substitute the attached notices for those of the administrative law judge. APPENDIX A 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 ordered us to post and abide by this notice. WE WILL NOT discriminate against applicants for referral to employment because of their gender or their nonmembership in our Union or any union. WE WILL NOT agree to or maintain with employ- ers any collective-bargaining agreements which contain provisions giving preference for employ- ment to members of our Union or any other labor organization. WE WILL NOT tell employees that other employ- ees will be discriminated against because of their gender or nonmembership in a labor organization. WE WILL NOT announce at membership meetings or elsewhere a policy of giving preference to union members and their sons over nonmembers. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL make Regina Becker whole, with in- terest, for any losses suffered as a result of our dis- crimination against her after 20 April 1981. INTERNATIONAL ALLIANCE OF THE- ATRICAL STAGE EMPLOYEES AND MOVING PICTURE OPERATORS OF THE UNITED STATES AND CANADA, LOCAL 22, AFL-CIO APPENDIX B NOTICE To EMPLOYEES 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 ordered us to post and abide by this notice. WOLF TRAP FOUNDATION WE WILL NOT maintain with International Alli- ance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO, or any other labor organiza- tion, a collective-bargaining agreement which con- tains provisions giving preference in employment to union members over nonmembers. WE WILL NOT maintain with Local 22 or any other labor organization an exclusive hiring hall ar- rangement which discriminates against applicants for referral to employment on the basis of their gender or nonmembership in a union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL, if necessary, pursuant to the Order of the Board, assist in making whole Regina Becker for any losses she may have suffered as a result of the discrimination against her by Local 22 after 20 April 1981, plus interest. WOLF TRAP FOUNDATION FOR THE PERFORMING ARTS APPENDIX C NOTICE To EMPLOYEES 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 ordered us to post and abide by this notice. WE WILL NOT maintain with International Alli- ance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO, or any other labor organiza- tion, a collective-bargaining agreement which con- tains provisions giving preference in employment to union members over nonmembers. WE WILL NOT maintain with Local 22 or any other labor organization an exclusive hiring hall ar- rangement which discriminates against applicants for referral to employment on the basis of their gender or nonmembership in a union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL , if necessary, pursuant to the Order of the Board, assist in making whole Regina Becker for any losses she may have suffered as a result of 1043 the discrimination against her by Local 22 after 20 April 1981 , plus interest FORD'S THEATRE SOCIETY Mark M. Carissimi, Esq., for the General Counsel. Thomas P. Powers, Esq. (Powers & Lewis), of Washington, D.C., for Respondent International Alliance of Theat- rical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO. Stephen B. Forman, Esq. (Arent, Fox , Kintner, Plotkin & Kahn), of Washington, D.C., for Respondent Wolf Trap Foundation for the Performing Arts Edward A. McDermott Jr., and Tanya J. Potter, Esqs. (Ragan & Mason), of Washington , D.C, for Respond- ent Ford's Theatre Society Thomas J. Walsh, Esq. (Finley, Kumble, Wagner, Heine, Underberg & Casey), of Washington, D C, for Re- spondent 513 13th Street, N W, Inc ., t/a Warner The- atre. Michael K. Wyatt, Esq. (Hamel, Park, McCabe & Saun- ders), of Washington , D.C., for Respondent The New National Theatre Corporation. Jeanette P. Papillo, and Michael E. Avakian, Esqs. (The Center on National Labor Policy), of North Springfield, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge This matter was tried in Washington, D.C, on April 11-13, 1983.1 Briefs were received from all parties about June 15, 1983. The complaint alleges that at material times, the four Employer Respondents have been engaged in separate collective-bargaining relationships with the Union Re- spondent covering stagehands; that in 1981 , in the course of those relationships, the Union Respondent and the Employer Respondents entered into collective -bargaining agreements that contained various provisions that are violative of the Act, 2 that the Respondents also, since various dates in 1981, have maintained a practice, based "in part" on the collective-bargaining agreements , of "re- quiring that Respondent Union be the sole and exclusive source of referrals of employees to employment" with the four Employer Respondents, that during those vari- ous periods, the Respondent Union has refused to refer Regina Becker, the Charging Party, to employment as a stagehand with the four Employer Respondents because she is "( 1) a woman and (2) not a member of the Re- spondent Union," and that all Respondents accordingly violated the Act by such discrimination; and that Re- spondent Union , through Acting Business Agent Freder- ' The charge in Case 5-CA-13813 was filed on October 20, 1981, in Cases 5-CA-13836-1, 5-CA-13836-2, and 5-CA-13836-3 on November 2, 1981, in Case 5-CB-3889 on October 20, 1981 , and in Case 5-CB-3898 on November 2, 1981 The complaint was issued on February 9, 1983 2 The complaint allegation against Respondent National Theatre in this regard has been withdrawn on brief by counsel for the General Counsel 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ick Tepper, violated the Act by several statements made in 1981. The answers to the complaint generally deny the alle- gations and, in addition, raise some affirmative defenses. Having reviewed the transcript of proceedings, the ex- hibits, and the briefs, and having considered my recollec- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT3 1. JURISDICTION OVER RESPONDENT WOLF TRAP Respondent Wolf Trap contends that, under standards previously established , the Board should either decline to assert jurisdiction over it or is precluded from doing so. In National Transportation Service, 240 NLRB 565 (1979), the Board reconsidered the test applicable in de- termining whether to assert jurisdiction over a private business that has "close ties to an exempt entity " (i.e , an entity, such as a state political subdivision , over which the Board may not assert jurisdiction because of the pro- hibitions of Sec 2(2) of the Act) 4 The prior test had consisted of two aspects ; in National Transportation, the Board found only one to be significant , concluding that it would be enough for assertion of jurisdiction if "the nonexempt employer retains sufficient control over its employees' terms and conditions of employment so as to be capable of effective bargaining with the employees' representative "5 Wolf Trap Farm Park for the Performing Arts is a 100-acre tract of land located in Fairfax County, Virgin- ia, which, together with five buildings and funds for the construction of a theatre to be known as the Filene Center, was donated to the United States in 1966 by Mrs. Jouett Shouse. By Act of October 15, 1966 (80 Stat 950, 16 U S.C. § 284), Congress established the Park as part of the National Capital Park System and mandated that the Park be maintained as a facility for the performing arts, educational programs, and recreational use In 1968, Wolf Trap Foundation for the Performing Arts, the Re- spondent here, was chartered in the District of Columbia by Mrs Shouse and others as a nonprofit corporation to "receive and maintain a fund of real or personal property or both to implement programs in the field of the per- forming arts at the Wolf Trap Farm Park . . . 9 Errors in the transcript have been noted and corrected 4 Sec 2(2) defines the term "employer" to exclude, inter alia, "the United States or any wholly owned Government corporation or any State or political subdivision thereof The basis for the Board 's exercise of discretion to withhold jurisdiction over a business related to an exempt employer is found , according to the National Transportation Service majority , in Sec 14(c)(1), which empow- ers the Board to "decline to assert jurisdiction over any labor dispute in- volving any class or category of employers where , in the opinion of the Board , the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction " The dissent- ers in that case, however, disagreed with this basic premise, 240 NLRB at 567 fn 12 , saying that the prior cases refusing jurisdiction over related employers rested on the theory that "the employer shared the statutory exemption of a governmental body " 5 The abandoned aspect had examined into the "nature of the relation- ship between the purposes of the exempt institution and the services pro- vided by the nonexempt employer", if the relationship was "intimate," that also would have been sufficient grounds for declining jurisdiction over the nonexempt entity The Park is under the operational jurisdiction of the National Park Service of the Department of the Interior. In 1970, the Department and the Foundation first en- tered into a "cooperative agreement " relating to the pro- grams and services to be rendered by the Foundation, and they executed a new agreement in September 1980. Speaking generally, this most recent agreement makes the Park Service responsible for the maintenance and control of all the physical property of the Park, and makes the Foundation responsible for the booking and promotion of productions at the Filene Center.6 The Service, however, provides and maintains "all theatrical equipment" used by the Foundation in the Center, except for "other necessary special equipment" that the Foundation has to furnish Another provision of the agreement authorizes the Service to "process applica- tions" from the Foundation for "Federal financial assist- ance," but notes the intent of the parties to make the programming "a financially self-sufficient operation." Other than Federal funds received , which are dependent on the amount made available to the Service by legisla- tive appropriation, "the Foundation . . shall supply all funds necessary to contract for and/or its present pro- grams, such funds to be derived from admission charges, fees from concessioners, entrepreneurial arrangements, and other income. The Foundation is "financially and otherwise responsi- ble" for all performing arts and related programs in the Center, including the furnishing of necessary theatrical productions, people, and properties, the sale and distribu- tion of tickets, the provision of press materials and ad- vertising, the distribution of programs, and the mainte- nance of existing concessions . The Foundation must notify the Park Service of proposed admission charges and no charges can be made without written Park Serv- ice approval. The Foundation must carry liability insur- ance and hold the United States harmless against claims arising out of its activities. The 1980 agreement further states that the Service "shall provide or pay for " staff personnel "to meet its re- sponsibilities under this agreement," including, inter alia, such classifications as a house manager for the Center, ushers, traffic control, "and all other front and back of the house personnel , including stagehands,' required for proper functioning of the Center and the presentation of performances and conducting of rehearsals ."$ It goes on to say- In fulfilling the obligation undertaken to provide for stagehand services, the Service shall contract 6 There are exceptions to this division of functions The Foundation itself provides all "utilities within the Box Office areas or within areas occupied by third party occupants or concessioners," and also provides maintenance "in those areas which it has authorized concessions and third party occupants to use " ' We are concerned in this case with the stagehands covered by the bargaining agreement between the Foundation and Local 22 8 Wolf Trap cites, on brief, a provision stating that the Foundation "shall not employ or retain in service any person declared by the Secretary, in the exercise of his reasonable discretion , to be unfit for such employment or otherwise objectionable " That provision was contained in the 1970 cooperative agreement and does not reappear in the 1980 suc- cessor thereto WOLF TRAP FOUNDATION 1045 with the Foundation to provide such services pro- vided that the Service may legally do so in accord with applicable Federal procurement laws and regu- lations . Although the Service shall seek suffi- cient funds to pay for contemplated costs of stage- hands, the obligation of the Service to provide stagehand services shall be limited to the amount of appropriations made for that purpose. Any stage- hand services required in excess of the amount made available by appropriations for that purpose shall be the responsibility of the Foundation. In accordance with the foregoing, in May 1981, the Foundation submitted a "proposal" to the Service to "provide stagehand services" for the period October 1, 1980-September 30, 1981, in the amount of $450,000. The proposal, accepted by the Service on June 30, 1981, obligated the Foundation to "provide all stagehand serv- ices required in the production of performances at the Filene Center " The nature of the work was defined in detail. A provision stated that "[a]ll scheduling in terms of hours worked and number of personnel needed will be determined by the [Park Service] Contracting Officer " A second provision required stagehands to fill out time- cards each day, with the cards to be checked by the Contracting Officer and signed by the responsible stage- hand supervisor and "co-signed by the Union Steward." The remaining substantive provision relating to stage- hands was that all work performed under the contract should be done "in a skillful and workmanlike manner." Another section stated, "Hourly rates shall be in accord- ance with the 1981 Basic Collective Bargaining Agree- ment between Local 22 IATSE and Wolf Trap Founda- tion "9 A "wage determination" issued by the U S. Depart- ment of Labor on February 13, 1981, tracked the pay rates and fringe benefits contained in the existing Wolf Trap Local 22 bargaining agreement, and noted (by amendment) that "A new collective bargaining agree- ment was signed on April 4, 1981" and that, under the Service Contract Act, a new bargaining agreement "may affect the wage rates and fringe benefits" set out in the wage determination.' 0 'Thus, in summary, the 1980 cooperative agreement generally obligates the Park Service to "provide or pay for" stagehands, and then specifically enjoins the Service to do so by requiring it to execute a separate contract with the Foundation for the latter to "provide" such services. In this undertaking, pursuant to the separate contract award, to "provide such services," the Founda- tion is apparently acting as an independent contractor on behalf of the Service to satisfy a contractual obligation seemingly owed by the Service to the Foundation For all I know, this Byzantine relationship may be complete- ly routine As a matter of legal analysis, the arrangement 9 The Foundation has been in a collective-bargaining relationship with Local 22 since at least 1971 10 There is no clear evidence as to the arrangement used prior to 1981 for the procurement of stagehands, presumably it was something like the 1981 proposal and award technique appears to make the Foundation the employer of the em- ployees provided Respondent Wolf Trap points out that, in Associated Charter Bus Co., 261 NLRB 448 (1982), the Board has recently construed National Transportation Service, supra, to require consideration not only of the respective contractual rights over the employees accorded to both the exempt and nonexempt entities, but also of those con- trols exercised over the employees by the governmental entity that are "not specifically delineated in the con- tract" but that constitute "substantive practices," 261 NLRB at 449, 450 The evidence as to such practices in this case follows The Park Service assigns a number (apparently around four) of its employees to full-time duty at the Filene Center. Ralph Hoffman, called the "chief for the per- forming arts," has been employed there since 1971 and so has one of his deputies, Production Manager Ronald Cuffe 11 Cuffe described the division of functions at the Center between the Service and the Foundation by saying that the Foundation books the shows and takes care of publicity and the box office, and the Service runs the backstage technically and otherwise "handles the show once it comes to the door " As indicated, the contract authorizes the Service to call for extra stagehands whenever they are needed to assist the permanent seasonal staff of department heads and assistant department heads This function has usually been performed by Hoffman or Cuffe, either of whom will tell the Union steward how many people are needed, what skills are required, and when they are needed. 12 It appears that the daily supervision of the stagehands is, at least at the highest level, controlled by the three Park Service representatives, although they evidently very seldom give instructions directly to stagehands, in- stead, according to Cuffe and Perry, the Park Service people work through the department heads However, it was the perception of Charging Party Regina Becker, who was around Wolf Trap a good deal, that Hoffman and Cuffe are "involved in the day-to-day supervision of employees. They are there to make sure that the work is done properly " She further (mistakenly) identified these Park Service employees as the only people "that repre- sented the Foundation" who were available to be talked to. Craig Hankenson, who worked for the Foundation as executive director of Wolf Trap from 1979 to April 1981, testified that "the stagehands were supervised by Ralph Hoffman." 11 Currently, there is also another deputy named Quinn lZ As for the permanent staff, Cuffe testified that in the spring, the Park Service officials discuss among themselves whether to recall the staffers from the prior season (the season extends from May to Septem- ber) or to hire new people These decisions are then discussed with some- one from the Foundation Cuffe told of an instance in which the Founda- tion did not want to reemploy one Sala, but Hoffman successfully insisted that he be rehired Allan Perry, head of the sound department in 1981, said he was "hired" by Hoffman, whom he called his "boss " In passing, Perry referred to one occasion on which he himself had presented a list of extras to the union steward as potential employees, without the inter- vention of Hoffman or Cuffe 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There is little in the record on the subject of the au- thority to discipline or discharge stagehands. Perry, when asked who would fire either a permanent staffer or an extra, "assume[d]" it would be Hoffman Perry also testified that Hoffman's approval was needed in order for "major" overtime to be worked. Hoffman and Cuffe au- thorize vacation for the permanent staff personnel. Pay- roll checks are prepared and signed by the Foundation on the basis of records prepared by Cuffe's secretary, who also disburses the signed checks There do not appear to have been any problems aris- ing from the bargaining agreement in the past, but both former Acting Business Agent Frederick Tepper and Union President John J. Ryan testified that if they had such a problem, they would speak to Hoffman about it Over the years, Service and Foundation representa- tives have jointly participated in collective-bargaining negotiations with Local 22. According to Cuffe and Hankenson, the Park Service people work out negotiat- ing "strategy" and then develop final strategy by meet- ing with the Foundation agents 13 The nominal spokes- person for the management side is, apparently, the high- est-ranking Foundation official present, usually the exec- utive director. Since there have been at least eight people serving in that role in 8 years, the Park Service officials have (perhaps less than half the time) taken over the role of spokesperson when, according to Cuffe, the Foundation head did not exhibit a "strong negotiating personality " Negotiations for what appears to have been a succes- sion of 1-year agreements have apparently at least some- times taken place at times before the Service was sure about the amount of money that would be available to it to pay the Foundation for stagehands in the coming season.14 According to some testimony by Production Coordinator Ann McKee, a Foundation employee, which I find confusing, it would appear that Hoffman makes projections each spring of the manpower needs based on the attractions booked, he then makes some sort of "projected budget" that has an "input in the collec- tive-bargaining negotiations." It is difficult to understand how Hoffman could make money projections before either the wage scales or the appropriation are estab- lished Perhaps that is why, in subsequent discussion, McKee abandoned counsel's reference to "projected budget" and switched to "amount of work " Her affirma- tive answer to the leading question, "Is it a fact that Mr. Hoffman, on the basis of his projections and on the basis of the particular amount of funding being reimbursed, sets the limits of what the Park is willing to go to in its negotiations" is not too helpful, at least as to those nego- tiations in which the "amount of funding being reim- bursed" is not known. As earlier noted, the 1980 cooperative agreement limits the Service's obligation to pay for stagehands to the "amount of appropriations made for that purpose," 13 The last three contracts are in evidence, and except for dates and figures and a cure for some illegal provisions, they are virtually identical The testimony is that the annual negotiations usually take only a halfday Thus, "strategy" probably is confined to changes in money items i4 The 1980-1981, 1981-1982, and 1982-1983 agreements were each ef- fective on May I and imposes responsibility for any amount expended in excess of appropriations on the Foundation McKee testi- fied that through 1978, the Service each year reimbursed the Foundation for the total amount of stagehand serv- ices incurred. In 1979 (perhaps through the device of a contract award such as was used in 1981, as earlier de- scribed), the Service put a ceiling of $450,000 as the maximum reimbursable amount, the Foundation paid no excess in that year. As for 1980, the evidence is unclear: Hankenson thought the ceiling was "in the neighbor- hood" of $400,000, and had a "recollection" that the Foundation paid an excess of "around $60,000", McKee testified that the excess in 1980 was $2300. There is no testimony about 1981 McKee said that in 1982, the ceil- ing was lowered to $432,000, and the Foundation paid out $4000 of its own funds for stagehands. The Service employees obviously play an active role in the negotiations, although it is not clear that their views are necessarily controlling On brief, Wolf Trap states, "The Foundation could not offer more wages or fringe benefits during negotiations than the limits set by the National Park Service [Cuffe, Tr. 334] " Actually, what Cuffe testified is that "the point beyond which we won't go in negotiations, it's kind of a consensus. Usually the initial positions and quite often the final position is our recommendation if it's agreed to by both sides." When then asked if there had ever been a situation "in which the Foundation staff had determined that they would be willing to go into [sic] negotiations to wages and other fringe benefits higher than that which was set or recommended by Park Service," Cuffe answered, "No, I don't think that could happen because the negoti- ations are conducted with Park Service people present and any movement after proposals and counterproposals are given, we fall back into a caucus position and discuss it " It appears to me that Cuffe did not quite understand the question and gave a nonresponsive reply Certainly the Service personnel have been looked to by the more transient Foundation representatives as the prime source of expertise with regard to bargaining agreements, and as a matter of practice, Ann McKee tes- tified, the Foundation has "never" come to an agreement with the Union "without the approval of the Park Serv- ice." As to the availability of funds and the setting of wage rates, it is hard to distinguish chicken from egg, i.e., it may be that an executed bargaining agreement influences the amount of funds that the Government will make available for employee costs, or it may be that the antici- pated appropriation amount influences the wages agreed to in the collective agreement As a matter of practical experience, it would appear that the bargaining agree- ments are probably executed more often before the avail- able amount of reimbursement is known than vice versa. The most authoritative examination of this area of the law thus far was in NLRB v. E.C. Atkins & Co, 331 U.S. 398 (1974) There the issue was the "employee" status of certain guards at a war production plant who were hired by the employer under compulsion of Government regu- lations relating to the security of such plants. WOLF TRAP FOUNDATION 1047 In order to be employed, these guards (known as "ci- vilian auxiliaries to the military police") were "milita- rized". they signed agreements with the Government that made them potentially subject to court-martial during their employment The military authorities re- served the right to veto their hiring and firing. Military officers were authorized to take appropriate action "through the plant management" to correct undesirable situations and conditions among the auxiliary guards The guards were subject to call for military service at plants other than the plant at which they were em- ployed While the military officers were "in command at all times," the plant management and civilian guard offi- cers would normally be in charge, and the War Depart- ment regulations provided that, except when "expedien- cy demands," the military "will exercise their authority" through the plant's chain of command. The employer de- termined the rate of compensation of the new guards, but "did not attempt to give orders to the guards, merely making suggestions to the chief guards" (who were also, by necessity, on the employer's payroll). The chief guards were delegated the employer's authority to fix working hours and promotion policies. The Supreme Court upheld the Board's determination that the militarized guards enjoyed statutory "employee" status and could compel the plant to bargain. It noted the War Department regulations indicating that the guards were to be considered private employees, and "[e]specially clear was the fact that the right of the guards to join unions and to bargain collectively was to be respected." That the employer was "deprived of some of the usual powers of an employer, such as the absolute power to hire and fire the guards and the absolute power to control their physical activities," did not necessarily vitiate the existence of an employer-employee relation- ship, which "may spring as readily from the power to determine the wages of another, coupled with the obliga- tion to bear the financial burden of those wages and re- ceipt of the benefit of the hours worked . . " In short, the Court found supportable the Board's conclusion that the employer retained a "sufficient residual measure of control over the terms and conditions of employment of the guards" so as to make them its employees for pur- poses of the Act. 15 A subsequent case of particular interest is Herbert Harvey, Inc, 162 NLRB 890 (1967) (Harvey 1), remanded 385 F 2d 684 (D.C. Cir. 1967) (Harvey II), decision on remand 171 NLRB 238 (1968) (Harvey III), enfd 424 F.2d 770 (D.C. Cir. 1969) (Harvey IV). That case in- volved the assertion of jurisdiction over a maintenance company under contract to the World Bank, itself (as eventually decided) not subject to the Board's jurisdic- tion The contract provided for payment by the Bank of a fixed fee to Harvey plus reimbursement of Harvey's costs, the type of contract that, by virtue of the latter provision, normally inclines the entity that receives the services to maintain a watchful eye over the activities of the provider of the service. 15 Cases that are intensely factual, like those in this category, are not easily summarized, compared, and contrasted, and I hope I do no injus- tice to the cases by the summaries given in this discussion In Harvey II, the court summarized the facts as follows (385 F.2d at 685). The Bank's office manager and his assistant have authority to issue work orders to Harvey's supervi- sors-an authority which they extensively exercise Moreover, the Bank's managers frequently assign tasks directly to maintenance employees and super- vise their performance. Harvey does the actual hiring of personnel, and screens job applicants, who must however satisfy hiring standards established by the Bank. No applicant is hired without specific Bank approval, if Harvey has any doubt as to whether his qualifications meet the Bank' s stand- ards. At times, the Bank directs Harvey to employ or to discharge certain individuals. Starting wages paid to Harvey's personnel are subject to the Bank's approval, as is any change in overall wage scales. Employees cannot be promoted or receive wage in- creases unless the Bank approves; and discharges recommended by Harvey's supervisors cannot be made without the Bank's specific authorization Finding that the record supported a conclusion that the Bank and Harvey were "joint employers," the Court remanded so that the Board might consider issues it had not theretofore decided: whether the Bank was exempt or not, and whether "the Bank's status, if exempt, would require [the Board] to refuse to assert jurisdiction over Harvey." Id. at 686. The Board held on remand that the Bank was exempt; it found as the "law of the case" that the Bank and Harvey were "joint employers"; but it also held that Harvey "exercises effective control over the working conditions of its employees and is fully competent to bar- gain with the Union." 171 NLRB at 239 In reaching the latter conclusion, the Board relied on the facts (1) that the wording of the Bank-Harvey maintenance agreement established Harvey as an "independent contractor" "solely responsible for the conduct of its employees"; (2) that the contract itself did not reserve any rights to the Bank to set wage rates, hire, or discharge, etc.; (3) that the clause obligating the Bank to reimburse Harvey for all "reasonable costs" up to a maximum did not specify any limitation as to wages to be paid; (4) that the Bank's yearend approval of wage increases was "routinely" done, (5) that Harvey's acquiescence in the Bank's par- ticipation in hiring, discharge , and assignment of employ- ees was simply a manifestation of the desire of a service company to "please its clients"; and (6) that the Bank's participation in promotion and the setting of wage scales "was no more than an exercise of its right to police the costs being incurred under the contract." On its second review, the court of appeals agreed, holding (424 F.2d at 778-779): The evidence sustains the Board's finding that Harvey is able to bargain effectively in the areas of prospective negotiation-hiring, firing, promotions, wages, benefits and other conditions of employ- ment. True it is that Harvey, like many-perhaps most-other employers may face practical limita- 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions in some of these areas but, as the evidence de- notes and the Board found , not in sufficient degree to frustrate the bargaining efforts. The process of collective bargaining, we are instructed , may appro- priately be invoked although the employer is sub- ject to rather substantial handicaps . [Citing and dis- cussing NLRB v. EC. Atkins & Co., supra.] There are cases that point in a contrary direction In Associated Charter Bus Co., supra, relied on here by Wolf Trap, the Board found that the exempt school district had "substantial control over the Employer's labor rela- tions" and was a joint employer of the Employer's em- ployees, and that , accordingly, the Board was "preclud- ed from asserting jurisdiction here." But the facts of that case are not entirely replicated here. For one thing, the contract between the school district and the school bus company spelled out a good deal of control by the former. Among several other things, the contract gave the district final approval over routes and schedules and the right to require assignment of a specific driver to a specific route; it provided that drivers were to be perma- nently assigned to the same routes if possible; it prohibit- ed the employer from using employees deemed incompe- tent or otherwise unacceptable by the district ; it required drivers to pass a skills test conducted every 6 months by a district representative, and to attend periodic meetings called by the district As for practices about which the contract was silent, the employer's general manager testified that the em- ployer had "never increased wages on its own and would not even contemplate doing so without consulting with the District " The record showed that any proposed wage and benefit changes were submitted to the district, that the district had "denied a prior wage increase re- quest in February or March 1980," and that in the con- tract renewal negotiations in 1980, the district "rejected three of the Employer's wage proposals and then opened the bidding to other businesses before finally accepting the Employer's fourth wage proposal ." The district also "required" that the employer institute major medical and life insurance coverage for the employees and "request- ed" other improvements in conditions of employment, all of which "directives" were complied with In addition, the district's 15 representatives were present at the terminal most of the day, and the employ- er's general manager testified that "all decisions he makes" are subject to the approval of the top district representative, who spent 6 hours a day at the terminal. The latter regularly instructed the general manager "to hire or not to hire" applicants, reviewed evaluations, di- rected the employer to discipline or give additional train- ing to drivers, and engaged in similar authoritative activ- ity It should be apparent that it is often no easy thing to determine whether a nonexempt employer "retains suffi- cient control over its employees' terms and conditions of employment so as to be capable of effective bargaining with the employees' representative," National Transporta- tion, supra (emphasis added). It is clear , as the courts in E. C. Atkins and Herbert Harvey held, that the fact that an exempt entity may exercise ultimate approval or control of some facets of the employment relationship need not stand in the way of permitting a Board-supervised collec- tive-bargaining relationship to develop, Board jurisdic- tion may attach , said the Harvey court, "although the employer is subject to rather substantial handicaps" aris- ing from its relationship with the exempt entity. The only sort of explanation I have found as to the policy un- derpinning and guiding the application of the "sufficient control" standard is along the lines of that referred to by Judge Miller in Harvey II, 385 F.2d at 686. that if the exempt unit plays the "dominant " role in the combina- tion, an order to bargain "would result in futility: any agreement made by Harvey as a result of negotiations would be subject to veto by the World Bank, which has not been ordered to bargain with the union ." 16 But evi- dently the Harvey court was not troubled by the possibil- ity of "partial" vetoes, since it agreed with the Board that a bargaining order was appropriate even though the record showed that the Bank exercised such powers as ordering employees to be discharged and giving them work assignments, despite the fact that, theoretically, such actions might be (or be found by the Board to be) improper. In the present case , the award under which the Foun- dation provides stagehand services to the Park Service requires that such services "conform to recognized and accepted standards and procedures of professional theat- rical productions" and "be performed in a skillful and workmanlike manner." Although this language is not nearly as specifically expressive of an employer-employ- ee relationship as that found in the Harvey contract, it does suggest that the contract contemplates that the Foundation would bear ultimate responsibility for the performance of the employees. The contract itself contains no other unusual restric- tions on Wolf Trap's labor relations decisions except to require that employees be paid in accordance with the current bargaining agreement between Wolf Trap and Local 22.17 In Atkins, supra, the Supreme Court stressed the fact that the War Department regulations made clear that the "right of the guards to join unions and to bar- gain collectively was to be respected "18 That Wolf Trap and Local 22 have been bargaining amicably for more than a decade, apparently without any problems at all, suggests that the role of the Federal Government has been successfully assimilated into the relationship and that no fear of potential "futility" need stay the Board's hand at this time 19 16 See also Ohio Inns, 205 NLRB 528, 529 fn 3 ( 1973), in which the Board advanced as the reason for the inquiry the "irresolvable confronta- tion" that would exist where the State of Ohio "has the power to disap- prove of any collective agreement " 17 It appears to me, from the wage determination issued by the De- partment of Labor, that the Service Contract Act requires that "any timely negotiated collective bargaining agreement" executed during the life of the award would require conforming adjustment of the wage rates and fringe benefits set forth in the wage determination 18 In the present case , the 1981 notice of award actually requires that timecards will be "co -signed by the Union steward " is It appears that most of the cases in this area have arisen in the pos- ture of representation proceedings, leaving the Board to speculate as to the possible effects of asserting jurisdiction should an election be held and Continued WOLF TRAP FOUNDATION 1049 It is true that the Park Service officials exercise con- siderable authority over the stagehands as a matter of practice. It would appear, however, that Hoffman and his subordinates do not do very much in the way of di- rectly supervising the stagehands; that is done, according to Perry, by the department heads. The latter are Wolf Trap employees, on the other hand, it seems probable that they regard Hoffman, as Perry put it, as their "boss "20 But it may nonetheless be said that the level of the most immediate supervision arguably may be identi- fied as Wolf Trap, not Park Service In addition, Han- kenson testified that Foundation employee McKee was the coordinator of production, which includes "stage- hands, set designers, technical aspects of the production," and that she "worked closely" with Hoffman Moreover, the concern of the Foundation with the ability of the staff is indicated by Cuffe's testimony that sometimes "someone like Ann McKee" would say of a staff member, "We don't want this person back." As for the discipline and discharge of extras, that is speculative; there apparently has been none There is evi- dence that Hoffman has been paid deference in one in- stance involving a disagreement over the rehire of an employee. The foregoing sort of control by the Park Service has apparently not created difficulties in the bargaining rela- tionship in the past and, of equal importance, does not seem to be the area of necessarily critical concern. As noted, the Supreme Court said in Atkins that the "abso- lute power to hire and fire the guards and the absolute power to control their physical activities" are "relevant but not exclusive indicia of an employer-employee rela- tionship under this statute"; the "relationship may spring as readily from the power to determine the wages and hours of another, coupled with the obligation to bear the financial burden of those wages and the receipt of the hours worked " 331 U.S at 413, 414. In this case, I find no clear showing that Wolf Trap has not been free, and is not free, to set the wages, fringe benefits, and other terms of employment of the stage- hands in the collective bargaining that takes place.2 1 The testimony that would tends to support Park Service con- trol over those important matters is, on close analysis, ambiguous and inconclusive Cuffe's testimony that, in the past, Wolf Trap and the Park Service have reached a "kind of consensus" as to the offer to be made to the Union does not necessarily imply that the parties under- the union prevail It also appears that the Board's tendency to order bar- gaining in these cases has become even more marked since its abandon- ment of the "intimate connection" test, see 11 Morris, The Developing Labor Law, pp 1449-1450, fn 149 20 The General Counsel argues on brief that Perry was a statutory su- pervisor I do not believe that there is quite enough evidence to support that contention, although it would appear that Perry was a leadman who might have been regarded by the extras as their "boss " 21 In NLRB v Austin Developmental Center, 606 F 2d 785, 789 (7th Cir 1979), the Court thought that the burden of persuasion properly belonged to the party seeking exemption "Similarly, [the nonexempt entity] has not shown that it lacks effective control over its labor relations " While the burden of proving jurisdiction ordinarily rests on the General Coun- sel, that rule may not apply when the exercise of the Board's discretion not to assert jurisdiction is involved, if indeed that is the issue here, see the majority and minority opinions in National Transportation Service, supra, as earlier discussed stand the Park Service to possess an unequivocal veto power The same may be said of McKee's testimony that Wolf Trap has "never"22 reached agreement with the Union "without the approval of the Park Service " That last could possibly imply that the parties thought such approval to be necessary, but it can as readily be con- strued to mean no more than that the Park Service did indeed simply view with approval the agreements reached Compare Compton v. Maritime Union, 533 F 2d 1270, 1275 (1st Cir 1976), in which the Court found a reasonable basis for a belief that the nonexempt entity could bargain effectively despite the facts that the exempt unit "has participated in some labor negotiations and has signed, as a guarantor, some labor contracts " In my view, the evidence is not firm enough to dem- onstrate a clear understanding or practice that the Park Service was to exercise ultimate authority over the terms and conditions to be agreed to by Wolf Trap and Local 22, or that the Foundation was not free to agree to more wages and benefits than the Park Service would have preferred. Former Wolf Trap Director Hankenson testi- fied that he was "the principal negotiator" and that Park Service employee Hoffman was a specialist in the field in which "I was responsible to negotiate." He also testified that it could be the case that he would be negotiating without knowing the amount of funding that the Foun- dation would receive from the Government for the ap- plicable period In addition, he told us that Hoffman did not "have the authority to commit the Foundation to a collective bargaining agreement that [Hankenson] dis- agreed with " Technically, of course, it is true that Hoff- man had no authority to "commit" Wolf Trap to any agreement at all, but I suspect that Hankenson was ad- dressing himself to the "disagreed with" when he an- swered. He further said that Hoffman sought his permis- sion to call extra stagehands if the call threatened to bring a production over the budget, thus manifesting the Foundation's willingness and ability to independently incur expenses for stagehands that it would have to absorb itself (as it has had to do in the past). Furthermore, it may be argued that if the principal concern of the instant doctrine is, as the Court said in Harvey II, the avoidance of the "futility" that could result from any agreement reached by the nonexempt entity being "subject to veto" by the exempt one (or the avoidance of "confrontation," Ohio Inns, supra), that concern is ameliorated where, as here, the exempt entity acquiesces in the terms of the bargaining agreement prior to its execution The present long history of acquiescence is a factor that the Board may consider in determining whether the exercise of jurisdiction is appropriate here The Foundation unquestionably is serving as a conduit for the furnishing of stagehands to the Park Service, which is most immediately concerned with their deploy- ment and use. At the same time, the Foundation is their legal employer and has not clearly been shown to be di- vested of the final authority to settle important terms and 22 McKee began employment with Wolf Trap as a technical director in 1975 and was not employed for the 1981 season When she began par- ticipating in negotiations is unknown 1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conditions of their employment.23 Further, the Founda- tion has its own interest in assuring that the stagehands are a contented, efficient, and effective group of employ- ees: the better the stagehands do their jobs, the more successful the productions will be, and the closer the Foundation will come to being the "financially self-suffi- cient operation" contemplated by the cooperative agree- ment. In deciding whether to exercise its discretion to de- cline jurisdiction in this area, the Board said in Harvey III that it must strike a balance between the congression- al policy of exclusion and "the policy of the statute to encourage collective bargaining-one of the fundamental purposes of the Act." 171 NLRB at 240. It does not appear to me that indulging the latter policy unduly de- preciates the former one in this particular case.24 There is a remaining question. Wolf Trap notes on brief that in Associated Charter Bus Co., supra, the Board found that the school district had "substantial control over the Employer's labor relations and is a joint em- ployer of the Employer's employees. We therefore con- clude that we are precluded from asserting jurisdiction here." The Board has at other times followed a finding of ",joint employer" status with a similar statement of its consequent inability to assert jurisdiction, e.g , ARA Serv- ices, Inc., 221 NLRB 64, 65-66. (1975) But that has not always been so. In Harvey, supra, de- spite concluding on remand, as being the law of the case, that the two entities, one being exempt, were "joint em- ployers," the Board did not then go on to say that it must dismiss the case; instead, it asserted jurisdiction, with the agreement of the court of appeals. In Harvey II, Judge McGowan had said in a concurring opinion, "The joint employer concept, if applicable, would presumably mean that two persons are subject to the Act rather than one. It does not appear to me to imply that, if one of such two is an exempt institution, the other must invari- ably be treated as exempt also, unless the Board chooses to do so " 385 F.2d at 686-687. The standard Board test for determining whether two (covered) employers are "joint employers" is the often easily satisfied notion of whether they "share, or co-de- termine, those matters governing essential terms and con- ditions of employment."25 It may be that in the ,joint-em- ployer-preclusion-of-jurisdiction cases referred to, the Board intended to say something a bit stronger, along the lines of what the court of appeals in Austin Develop- mental Center, supra at 789, apparently perceived the Board to be saying: "Where a private employer, because of a contract with an exempt entity, retains so little con- 22 That authority was more graphically established in Associated Char- ter Bus Co, supra, where, for example, the evidence showed that, in 1980, the school district rejected three proposals made by the bus compa- ny for raising employee wages before finally accepting the fourth such proposal This is the sort of evidence that clearly demonstrates that final authority resides in the exempt entity 24 Aside from providing Board protection to the bargaining process, assertion of jurisdiction also assures continued protection of the hiring hall referral process, whether declination to assert jurisdiction here would withdraw such protection is not clear to me I note, however, that the Union joins Wolf Trap in asserting that the Board should decline ju- risdiction over the latter 25 Greyhound Corp, 153 NLRB 1488, 1495 (1965) trol over its own labor relations that it cannot engage in meaningful collective bargaining, section 2(2) has been held to deprive the Board of jurisdiction because the exempt entity is deemed the true employer."26 That, however, is not clearly the present case. Despite the au- thority exercised by the Park Service here, another sen- tence from Austin seems presently applicable- "Further- more, the Board may require collective bargaining even where the employer's relationship to the exempt entity places it under substantial hardships in labor negotiations, as long as it retains some control over terms and condi- tions of employment." Supra at 789; emphasis added. It appears to me that the Foundation, at the very least, re- tains "some control." 11. THE STATUS OF NATIONAL THEATRE At the hearing, National put in evidence a "Manage- ment Agreement" entered into between National and the Shubert Organization, Inc., which took effect in October 1980. After that time, Shubert managed most of the shows appearing at the National, although National was itself directly responsible for certain non-Shubert produc- tions that required hiring a small number of stagehands. The bargaining contract executed with Local 22 effec- tive in September 1981 was signed by Bernard Jacobs, a Shubert official, but on behalf of "The New National Theatre Corporation." On brief, National appears to be asserting (without of- fering any extended legal analysis) that its duty to recog- nize the Union was substantially vitiated by the 1980 Shubert contract (except, perhaps, for the few non-Shu- bert productions directly presented by National). The relevant contract provisions granted Shubert the "full and exclusive right, power and authority" in various areas, one of which was that, except for certain employ- ees hired by National, Shubert "will be responsible for employee relations (i.e., contracts, terms, wages, etc.) for all workers involved in the cooperative venture"; but also provided is that National, "while enlisting the pro- fessional services of [Shubert] as manager of the National Theatre, reserves to itself the title and role of operator of the National Theatre." Although the language is not unequivocal, it could be argued that the foregoing provisions indicate that Shu- bert was to be considered the employer for the produc- tions it handled. The records show that Shubert and Na- tional maintained separate payrolls. A National payroll record as of November 8, 1981, shows that National had used 28 stagehands on its own public service productions for the year to date. But most of those employees also (except for staff personnel, whose names have evidently been deleted from the exhibit as irrelevant to this pro- ceeding) appear on a union computer printout for 1981 listing wages and fringes paid to employees and labeled "Worked-Natl."; the other employees on the exhibit ob- viously had worked on the Shubert productions It there- fore would seem that the Union continued to view Na- " Zapex Corp v NLRB, 621 F 2d 328, 333 (9th Cir 1980), reads the Board references to "joint employers" as "applying the substantial 'con- trol' test [of E C Atkins] implicitly " WOLF TRAP FOUNDATION 1051 tional, not Shubert, as the employer of all the'employees who worked at that theatre in 1981 (unless there is a sep- arate union tally of employees who worked only on Shu- bert productions that has not been produced here) As earlier shown, the September 1981 bargaining agreement was signed by a Shubert official, but the named employer is "The New National Theatre Corpo- ration," which the bargaining agreement describes as having "sole responsibility for and control over all per- forming arts functions in the National Theatre " The 18- page bargaining agreement does not mention Shubert Having chosen to portray itself to the Union as shown above, and having entered into the bargaining agreement without express limitation, National has provided suffi- cient grounds for a conclusion that Shubert did not in law become the principal "employer" at the National Theatre by virtue of the management agreement. In any event, National appears to concede that, until the theatre closed in May 1982, it continued after October 1980 to maintain a bargaining relationship with the Union vis-a- vis those employees who worked in non-Shubert produc- tions directly presented by New National Theatre Cor- poration; if that relationship did legally become dimin- ished in October 1980, it expanded again in September 1981 with the execution of the new bargaining agree- ment. III. THE CONTRACT PROVISIONS As set out, during 1981 and thereafter, Respondent Local 22 (Local 22 or the Union) and the four Employer Respondents were in collective-bargaining relationships covering certain employees who worked at the four the- atres. With the exception of National, the Union execut- ed in 1981 valid contracts with three of the four employ- ers,27 but the complaint alleges that certain of the con- tract provisions violated the Act. Warner Theatre. Warner's entered into an agreement covering its stagehands with another Washington area union, Local 224-A, IATSE, for an effective period of May 30, 1981, through January 1, 1983. The contract provided, in part. All parties agree that present members of Local 224-A, applicant-apprenteces [sic] and assistants will be given preference for employment hereunder based on the highest number of hours worked in the Warner Theatre during the last year Effective October 1, 1981, Local 224-A was merged into Respondent Local 22 The Warner-Local 224-A col- lective-bargaining agreement states that in the event of a union merger, "this Agreement shall survive such action and shall control." While Warner's, at the hearing, made a stab at establishing that it had received no official noti- fication of the merger, the testimony of its present gener- al manager makes clear that the former general manager had received "letters" indicating that the merger had taken place. Moreover, Warner's answer admits the com- 27 National and the Union never got around to executing an agreement between 1977 and late 1981 The record indicates that during the con- tract hiatus, National continued to negotiate with the Union plaint allegation that "[s]ince on or about October 1, 1981, Respondent Warner and Respondent Union have maintained the collective-bargaining agreement set forth above." I conclude that the bargaining agreement sur- vived the merger It is not clear how the "preference for employment" clause would have worked in practice, either before the merger or thereafter I do not understand, for example, what "applicant-apprentices" or "assistants" are, or how "the last year" is computed Nor do I understand why the complaint alleges only that the foregoing provision was maintained by the Union and Warner's since "on or about October 1, 1981", the evidence indicates that the contract was entered into by Warner's in May 1981, al- though Local 22 had nothing to do with it until October It also may be argued that the provision in part became a nullity on October 1, the violation date alleged in the complaint, because Local 224-A disappeared at that time by virtue of the merger After that date, there were no "present members of Local 224-A." On the other hand, there is a certain ambiguity here, the provi- sion could at least arguably be strictly construed to give a preference to those "present members of Local 224-A" who were such when the agreement became effective, re- gardless of their status thereafter The General Counsel's argument on brief, however, seems to eschew the contractual reference to Local 224- A as a per se basis for violation and instead focuses on the more general issue of the preference given for past employment "The effect of Clause 18 is that no matter what qualifications an employee brings with them [sic] when seeking a referral, if he or she has not, in the past, been employed at the Warner Theatre and consequently not associated with Respondent Local 22, that employee will be ranked behind members and those associated with the Union " The General Counsel cites the principle ap- plied in Stage Employees IATSE Local 659 (MPO-TV), 197 NLRB 1187, 1189 (1972), and Teamsters Local 83 (Various Employers), 243 NLRB 328, 333 (1979), but I do not believe that principle is logically applicable to the present case. The cited cases proscribe a contractual system that purportedly tends to discourage employees from work- ing for nonunion employers by the device of giving em- ployment preference to those applicants who have worked for unionized employers in the past Here, the only effective encouragement of that sort was to suggest that employees who wanted to work for Warner's in the future would have a better chance of doing so if they also worked for that theatre now. The clause operated as nothing more than a seniority provision, giving work preference to employees who had previously been em- ployed at Warner's. That sort of parochial encourage- ment is not based on broader union considerations, only in the most limited manner penalizes or rewards employ- ees for their past union associations, and is not impermis- sible. It is true that between May 30 and October 1, 1981, the contract ostensibly held out a preference for "present members of Local 224-A" as opposed to nonmembers of that organization., The General Counsel has not chosen 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expressly to argue the finding of a violation on this dis- crete issue or to allege a violation on any date prior to October 1. The complaint does not suggest that Warner's needed to defend its contractual relationship with Local 224-A, in addition to its relationship with Local 22. In such circumstances, I find no need to reach the issue.28 Ford's Theatre On January 1, 1981, Local 22 entered into a 1-year bargaining agreement with Ford's that con- tained the following provision: JURISDICTION- The Employer agrees that all work performed on the stage shall be performed by members of the Union. This provision was clearly invalid 'Distillery Workers Local 122 (Oz Liquor Co., 261 NLRB 1070, 1071 (1982). That a subsequent contract between the Respondents did not similarly establish a "closed shop" does not cure the violation or, without more, indicate that the potentially unhealthy effects of the clause have been dissipated. Ac- cordingly, I shall recommend that a violation be found and an appropriate remedy entered.29 Wolf Trap. The complaint challenges three provisions contained in the May 1, 1981 Wolf Trap agreement. The first was an agreement by the employer that all work covered by the contract "shall be performed only by members of the International Alliance of Theatrical Stage Employees Local 22, IATSE", the second provid- ed that certain work will be "done by members of this Union" and that no person would be allowed to work "where such action will displace a member of this Local Union from employment"; and in the third, Wolf Trap agreed "to employ only members in good financial stand- ing of Local 22, IATSE." These clearly unlawful provisions were sanitized in the 1982 agreement. Nonetheless, for the reasons given above, a finding of violation and a remedial order are justified IV THE EXCLUSIVE HIRING HALL ISSUE A. A Prefatory Note As discussed , Respondent Local 22 represents certain employees at the theatres operated by the four Employer Respondents and, as well , at other theatres and arenas in the Washington, D.C area. Although it may not be of any real significance, I note some uncertainty in the record as to the categories of employees intended to be covered by such recognition. There is drawn in the testimony , as previously noted, a distinction between "staff" and "nonstaff" employees at the four theaters The former work on a steady basis during the respective theatrical seasons30 and hold titles such as department heads, assistants to department heads, and the like , the "nonstaff" or "extra" people are hired to assist on specific productions. The collective-bargaining agreements, although con- siderably disparate in length, seem to contemplate that the staff employees are within the bargaining unit, but the point is not always beyond doubt Wolf Trap's agree- ment contains a "scope of jurisdiction" clause that ap- pears to include the work done by the staff employees. It goes on, in a section called "House Staff," to define a classification called "Staff Crew Members" (five "Heads of Department," eight "assistant Department Heads") but refers to them as "Those employees agreeing to this con- tract [shall be called by such names]" (emphasis added), surely an inappropriate provision for represented em- ployees Nonetheless, the contract sets various terms of employment for such employees, of the sort that indi- cates inclusion in the bargaining unit The contracts with the other theatres also suggest that the staff personnel are considered to be in the bargaining units . However, the testimony of various witnesses tends to show that staff members are separately interviewed for hire at Wolf Trap (and other theatres) and not referred through the union hiring hall In sum , it would appear that the staff employees are considered to be included in the bargaining units It fur- ther appears, however, that the parties understand that the employment of such employees is not subject to the hiring hall arrangements hereafter discussed B The Exclusive Hiring Halls The complaint alleges that Local 22 and each of the four Employer Respondents maintained an "exclusive hiring hall," i e., an arrangement by which the Employ- ers looked exclusively to the Union for referral of em- ployees to be hired by the Employers. Although the bargaining agreements did so provide, there can be little doubt that the Union and the Employ- er Respondents understood such a system to be in effect Union President Ryan testified that, as far as he knew, all the theatres used acting Business Agent Frederick Tepper in order to obtain referrals during the relevant period. Tepper testified that "the system was that [the theatres] asked the Union for a person," and that he him- self made referrals to Wolf Trap, National, and Ford's 31 Craig Hankenson, former executive director of Wolf Trap, testified that "the Union was a referral service for us, everything was through the Union by contract for the Union." Maury Collins, the managing director of Ford's Theatre, testified that once the number needed was determined, the Union would "refer backstage extras to Ford's Theatre in the requisite number"; this was after, according to Ford's technical director and Local 22 member Tommy Berra, he called Tepper. Brian Mahoney, general manager of Warner's, testified that union stewards Pair and King have made virtually all referrals to that theatre with the exception of certain occasions when security guards have been put to work late at night to assist in some loading. 28 In the other allegation charged against Warner's in this complaint, I am also recommending dismissal 29 The complaint alleges as unlawful another provision in the Ford's contract The General Counsel does not refer to it on brief, and I per- ceive no illegality on its face 30 Which vary Wolf Trap operates during the summer only 3i After the merger of Local 22 and Local 224-A on October 1, 1981, however, a former Local 224-A steward named Gary Pair, who worked at Warner's, continued to make the referrals to that theatre as an "assist- ant business agent" of Local 22, and another steward, Jerome King, also performed this function WOLF TRAP FOUNDATION 1053 Richard Schneider, general manager of National Thea- tre from 1979 to April 1983, testified that it was his prac- tice to contact Tepper for stagehands "much of the time" and National's steward Richard Reynolds "occa- sionally " It seems clear from Schneider's testimony, both initially and on recall, that all requests for extra sta- gehands were channeled through the Union, the Union, in fact, maintained its own backstage telephone at the National 32 The law is clear that parties can bind themselves, by "agreement or understanding," to an exclusive hiring hall system despite the absence of any written commitment to that effect Operating Engineers Local 513 (McFry Exca- vating), 197 NLRB 1046, 1048-1049 (1972) The practice and understanding as shown here is that the Employer Respondents must look to no source other than the Union Respondent for its extra stagehands. I conclude that exclusive hiring hall arrangements did exist, between the Union and the Employer Respondents.33 V. THE ALLEGED DISCRIMINATION AGAINST REGINA BECKER Frederick Tepper is a longtime member of Local 22. He served as secretary of the Local between 1974 and 1983, as a steward at Wolf Trap (where he has been em- ployed for many years as head electrician) '34 and, since August 1979, as the Local's acting business agent In the latter capacity, Tepper has run the hiring hall for the theatres involved here (except Warner's, as earlier dis- cussed) It seems clear, however, that even before Tepper became the acting business agent, his status with the Union invested him with a certain amount of influence with respect to the hiring process, which also appears to be true of the other union stewards at the various thea- tres. Thus, as long ago as 1971, Tepper managed to get a referral for stagehand work for his nephew Farrel Becker, who had had, before that occasion, no useful stage experience Thereafter, Farrel Becker stayed in the trade, was accepted into union membership in 1976, became head of the sound department at Wolf Trap for a while, and worked in various other capacities in the busi- ness, frequently and continuously being referred to jobs by his uncle Farrel Becker is married to Regina Becker, the Charg- ing Party here 35 She testified that it was in 1976 that she first spoke to her uncle-in-law Fred Tepper about being referred to work by Local 22 At ' that time, Tepper told Becker that she needed experience 36 Ac- 32 As indicated, Local 22 and National had no collective-bargaining agreement in effect between 1977-1981 The contract, which became ef- fective on September 28, 1981, contains an express exclusive hiring hall arrangement 33 That there may have been occasional emergency situations or isolat- ed departures, as testified by Warner's general manager, does not detract from this conclusion 34 He began work at Wolf Trap in 1973 However, over the years, he was employed at the National Theatre, when work was available, in peri- ods of the year when Wolf Trap was not presenting productions as Hereafter, Regina Becker will usually be referred to as "Becker" and her husband as "Farrel " 36 The 6-month limitations date for finding a violation against the Union and Wolf Trap here, as mandated by Sec 10(b), is April 20, 1981, cordingly, in the next few years, she obtained employ- ment with the nonunion Washington Ballet Company, worked as a volunteer with some community theaters, and enrolled in several "audio seminars" as well as a lighting class Becker testified that in 1979, she had "numerous" con- versations at the National Theatre and Wolf Trap with Tepper about her desire to be referred to work by the Union.37 She said that she received a "variety of re- sponses" from Tepper. "[O]n one occasion" Tepper said he "couldn't and/or wouldn't refer me because I was his niece and a woman." She then went on to say that the foregoing was "an occasional answer"; in other in- stances, she would "frequently get a non-answer, almost as if I was ignored, as if I didn't really want to [work] " In the latter part of 1979,38 Becker talked to Tepper about being referred, and Tepper asked "what did I want him to do, that if I had a card he would work me." In 1980, Becker testified, her husband was working at Wolf Trap and she visited him frequently At least once a week, sometimes more, she told Tepper that she was "available and that I would like to be referred " Tepper's "basic" answer each time was "that I was a woman, I was his niece and that I didn't have a union card. If I had a union card then I would be referred " Becker testified that on March 27, 1981, during a tele- phone conversation with Tepper, she asked if there were any job opportunities; Tepper said there were none, and further said that "[she] was a woman and that [she] needed a union card " Becker could not recall whether Tepper mentioned her status as his niece in this conver- sation .3 9 Becker was backstage at the National Theatre the next evening and had a conversation with one of the extra stagehands who had been brought in for the "put-out," or dismantling, of a show The extra, a female Montanan named Mary McGregor, told Becker that she had re- ceived the referral from Tepper that afternoon, i e , the day after Becker had been told that there were no avail- able jobs .40 and against Ford's, Warner's, and National, May 2, 1981 Earlier events may, however, be considered for the light they shed on conduct within the critical period Machinists Local 1424 v NLRB, 362 U S 411, 416 (1960) 37 On June 5, 1979, Becker also left a letter on Tepper's desk at Wolf Trap In the letter, addressed to Tepper as secretary of the Union, she asked for work at Wolf Trap and formally described her background and capabilities She sent a copy of the letter to Bill Bennett , then the union business agent 38 There is confusion in the record as to the correct year Becker first testified that "Mr Tepper had stayed in my house for three months in '79 when my husband and I were in California, and there was an overcross of times when all three of us were in the house at the end of '79 or the beginning of '80 " On cross examination , however, when asked "what was the period of time Mr Tepper was living in your home9", Becker answered "Approximately the 10th of September of 1981 to the end of December of '81 " It would appear that 1979 was the correct year, since Becker's charge against the Union was filed on October 20, 1981 39 Farrel was on an extension phone He testified that he "believe[d)" Tepper said in this call, as he had said "many times" before, that "she would have to have a union card before he put her to work " 40 1 should consider here the appropriate treatment of certain testimo- ny about Mary McGregor When Becker first referred to her, she stated that McGregor "has a union card from the State of Montana" I sus- Continued 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Becker testified that in the spring of 1981 , her husband informed her of a new procedure that required calling the union office in order to be referred to work Perma- nent daily logs maintained by Respondent beginning with April 30, 1981, show that in 1981 Becker called the office on May 19, June 10, 12, and 17, July 28, and Sep- tember 29 ,41 and also continued to call in 1982. After the charges were filed in this case, and settlement discussions were underway, she received her first referral, about mid-December 1981. She then received "several" refer- rals in January 1982 and one in March , and then none until around the end of 1982. The nature - of the referrals was varied , such as "a put-out of the Rolling Stones con- cert at the Capital Center."; Farrel testified that he spoke to Tepper about a refer- ral for Becker in 1977. Tepper replied that "if he let her work, then all the other members would want their wives to work, and he also said that she didn 't have any experience." Farrel broached the subject again in the summer of 1980, and Tepper "said she would have to have a union card before he could allow her to work. Of course, she was a woman but a woman would have to have a union card " In "the early part" of 1981, Farrel said, he talked to Tepper about getting work for Becker, and again Tepper spoke of the necessity that she "have a union card before he could refer her to a job." When Farrel then asked if there was any way she could get a card, Tepper suggested that Farrel call one Al Di Tolla, a union official in New York, to see about getting Becker an "associated Craft and Technician Card" issued by the International Union. Farrel called, but Di Tolla told him that the International had stopped issuing such cards. Despite the several testimonial allusions by Farrel to Tepper's stated requirement that Becker needed a union card in order to work, he also testified to other consider- ations mentioned by Tepper. As earlier noted, in 1977 Tepper had replied that if he let Regina work, then "all of the other members would want their wives to work." Farrel also said that in the "many" conversations he and Tepper held on this subject in 1981, the latter had said that "because she was his niece that would cause a great deal of problems if he did refer her [to] the job, that the members would be upset if he was referring his niece and it would cause problems for him " But, according to tamed a hearsay objection by counsel for Respondent Union to that testi- mony Upon reflection , I probably erred in that ruling , since Becker's broad testimony admits not only of the possibility that McGregor so told Becker (which would be hearsay), but also that Becker came to know of McGregor 's membership in some more probative way Thereafter, however, when I asked a question relating to McGregor, Becker testified that McGregor "is a member of the Montana Local, and I knew that to be a fact at the time , as well as being aware of the union's hiring procedure " There was no objection to this testimony from any of the five Respondents' counsel When Farrel later testified that McGregor "has a card from another local," a hearsay objection was made and sus- tained Again , I probably erred , Farrel may have seen the card In my judgment, I am obliged to treat as probative the testimony to which there was no objection When that testimony-that McGregor "is a member of the Montana Local "-came in without objection , the Gen- eral Counsel and the Charging Party were , I think , entitled to assume that the statement would be treated as fact in the absence of objection In any event , I do not view the issue as a significant one, see infra 41 Becker testified that she also called on a few other days in 1981, but her notes did not include the dates of these calls Farrel, Tepper also seemed to be conceding that Regina could nonetheless be referred by saying , in "many" of the conversations, that "for a woman to be referred she would have to have a union card , and that for Gina to be referred she would have to have a union card." Tepper testified that the basis for his refusal to refer Becker to work at Wolf Trap in 1976 was twofold he "didn't want to get into the position of referring a rela- tive over non-relatives," and he "didn 't think at the time that she was qualified to do anything around there " He conceded that he did receive information thereafter that she had worked with a "ballet company somewhere, some amateur group or semi-professional group," but he purportedly had no knowledge of the extent of her train- ing. Tepper conceded that Farrel had frequently raised the subject of Becker being employed , and although he could not recall that she herself had talked to him about referral in 1981, he indicated his awareness that she had called the union office, which "is like asking for work." When asked why she received no referrals from these calls, Tepper said , "I could not refer somebody that I couldn't vouch for their type of work that they could do. She is a complete stranger . I didn't get any type of resume or anything." The explanation was left at that until some minutes later, when the following colloquy occurred: Q [By counsel for the General Counsel] Now, Mr. Tepper, did you ever tell Regina Becker that if she had a union card you might be able to work her? A. I don't know why I would. Q Well, I don't know either I am just asking. A. I could or couldn't. I don't know. Q. You might have? A. I doubt it because of the relationship. JUDGE RIES. You didn't what? THE WITNESS: Because of the relationship, I didn't think I was going to give her work Nepo- tism or whatever you want to call it. JUDGE RIES: Give her work because she was re- lated to you? THE WiTNESS. Yes, basically If you mean if I thought she was qualified and had-and could do the work , there would be no reason. But I didn't think that she was so that- JUDGE RIES. So it would have been nepotism to hire her? THE WITNESS: Yes. For me to hire her, to refer her. The foregoing indicates that there "would be no reason" not to refer Becker if she was qualified , but since Tepper did not think she was, referral of her would have amounted to nepotism . Subsequent to the foregoing testi- mony, however, when Tepper was asked if he would have referred Becker if she had been considered quali- fied, he answered , "Probably not, I mean, because-what it does, it opens up everybody else's sister , daughter, wife, mother, you know, that they are all seeking this- on that basis, that they are relatives." WOLF TRAP FOUNDATION 1055 The foregoing is about as impressive as Tepper's testi- mony ever gets He went from saying that he did not refer his niece-in-law because she was a "complete stranger" as far as her work was concerned, to saying that he "could or couldn't" have told her that he might be able to refer her if she "had a union card," to saying that he did not refer her because he thought she was un- qualified and therefore referral might give the appear- ance of nepotism, to saying that he probably would not have referred her even if she was qualified because that would lead the female relatives of the other members to ask for work also.42 There are any number of reasons mentioned here for not referring Becker, but her lack of experience is among the least convincing. Stagehands do different kinds of work, and if a sound or electrical extra is needed, it obvi- ously will not do to send an inexperienced person. But the evidence shows very clearly that there is work that requires only simple labor, and there are examples in the record of totally inexperienced people being repeatedly referred by Tepper for such work (a man with only a "computer" background, and his son who had "high school theatrical experience," both related to Tepper's .secretary, the dentist husband of a Wolf Trap office sec- retary; a husband of a union secretary, whose back- ground was in the "cement trade"). Moreover, both Beckers had been attempting since 1979 to acquaint Tepper with the technical experience that Becker had ac- quired after 1976-experience obviously more meaning- ful than Farrel had possessed when Tepper had first as- sisted him in obtaining-work in 1971-and Tepper simply paid no attention to what plainly could have been con- sidered sufficiently qualifying experience.43 As noted, once the charge was filed, Becker began receiving refer- rals.44 I do not doubt that Tepper made reference to the "nepotism" argument over the years; both Beckers say he did, as well as other witnesses.45 Thus, Allan Perry, who served as head of the sound department at Wolf Trap in 1981, testified that in several discussions with Tepper about Becker during that summer, Tepper said that she "would never work at Wolf Trap while he was there," giving as "his reason" that the union membership would frown on his "showing favoritism to his relative." When then asked if Tepper had mentioned her lack of union credentials, Perry replied, with evident sincerity, "He said that he doesn't work women without union cards," a statement made by Tepper on "a few occa- sions." 42 Becker made clear at the hearing that on occasion Tepper did dis- cuss his "reservation" about referring her "because of the family relation- ship " 4a Farrel testified that he had many conversations with his uncle about his wife, and had reminded Tepper that Becker had "gone out and gotten experience, that she had worked with several theatres and worked with several companies " 44 Tepper also testified that prior to 1979, he had asked the then busi- ness agent to refer Tepper's stepson, after the latter had been educated by "coming to the theatre where I work and showing him around and doing things of that nature " 45 There appear to have been many discussions by involved persons on the subject of the referral of Becker, and any number of statements made that do not all travel well over the years Subsequently, however, Perry testified that he thought the statement about women and membership "only came up once," and that Tepper's "basic" explanation was the relationship. While it would seem unnecessary for Tepper to mention the former reason, having uttered the latter, I nonetheless believed Perry that Tepper made both statements. I also believed Perry's undemed testimo- ny that in June 1981, he told Tepper that he needed two extra stagehands and gave Tepper a list of six recom- mended names, the first being Becker (she had worked for Perry as "a sound person on video jobs" and also was a friend); Tepper's response was to become "very violent," "slam his pencil through the list," and, with an expletive, say that Becker would "never work in that theater." Hankenson, the Wolf Trap executive director, testified to conversations with Tepper in 1979-1980 in which Tepper said that the hiring of Becker was a problem "be- cause there were many other employees who he needed to give work to, there were other people ahead of her in line and other women who would be ahead of her in his consideration because she was a relative of his To hire her would be a very unpopular move within the Union." But he also went on to quote Tepper as having said that he "needed to give the work to people who were on the union rolls or who were first in line, who were unem- ployed and who had been working with the union," and his pretrial affidavit, which he adopted at hearing, states that Tepper said, "There were so many members who did not have work that he was not able to place Tepper said there was not enough work for his men." Ronald Cuffe, the Park Service employee earlier dis- cussed, quoted Tepper as saying to him more than once, including in the first part of 1981, that Becker "would never work at Wolf Trap" for reasons that "sound like" that she was "a female and a relative" and that Tepper would be accused of "favoritism." But, perhaps in the spring of 1981, Tepper also said that if Becker had "a union card from another local or a card from the Inter- national that he would be able to work her." Cuffe also made an excellent appearance, and I accept his testimony that Tepper said all these things. In context, the nepotism references seem to be nothing more than another way of saying that Becker would not be referred because she was a female nonmember of the Union. Tepper evidently feared no charge of nepotism arising from his continuous referral to work of his nephew (even before he became a union member) The record further clearly establishes a policy accepted and encouraged by the union membership of according hiring preference to nonmember male relatives of members, a policy that might ordmai ily help to allay Tepper's fear of an accusation of nepotism. Gender is important here. Until Local 224-A merged with Respondent Union in October 1981, bringing with it three female members, the Respondent was an exclusive club, both in terms of sex and numbers Except for one male initiated in 1979, none had been admitted since 1976; and there were no women members. The record shows that many nonmembers of Local 22 were referred to work by the hiring hall in 1981 and thereafter. The 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1981 printouts in evidence show no apparent female name except Mary McGregor, earlier discussed, the testi- mony as to other women referred is inconclusive, but it would seem that in each case, they may have had some sort of union connection that Becker did not have. Tepper testified that perhaps as early as 1973, he had recommended to the then business agent the employment of "like one or two" unidentified females who were non- members. It is possible that the "one or two" were cer- tain women about whom Farrel gave testimony on cross- examination Farrel testified that he is familiar with a Janet Drazak and a Patti O'Dwyer, that neither holds a union card "to my knowledge," and that both have been referred to Wolf Trap as stagehands These referrals oc- curred, Farrel said, around 1974 or 1975, when Drazak was a student at the University of Maryland and O'Dwyer worked in the union office as a clerical; he "believe[d] that Tepper, who was then the union steward at Wolf Trap, got them the referrals. Tepper further testified that he recalled referring a woman named Carol Doucette, not a member of Local 22, to work at the National in the spring of 1982, after the instant charges were filed He testified, "Her name came through the Inter-[national Union?] The show, people with the show " The latter turned out to be the carpenter of the touring show at which Doucette was put to work. Farrel referred to Doucette as "a woman who every now and then" comes through with a show." Tepper said that he "[did not] know" whether Doucette holds an International card On brief, Local 22 refers to several women named at the hearing as having received referrals 46 Three of them, counsel acknowledges, had been members of Local 224-A and became members of Local 22 after the merger The others are Doucette, Drazak, O'Dwyer, and McGregor Local 22 argues that "[t]here is no evidence that [they] held any union card " As for McGregor, I have earlier stated a willingness to accept the unobjected-to testimony of her membership in a Montana local As for Doucette, as noted, she appar- ently came to town already affiliated with a show Of the remaining two, whose referrals occurred around 1974, one was a union secretary and one a student at a university at which Tepper has taught stage electrical work. But even if I were to agree that there was no evidence of special circumstances as to any of these women, I could not accept the intended implications of Local 22's statement that "[t]here is no evidence that [they] held any union card," for I found convincing the witnesses who testified that Tepper said repeatedly that Becker could work if she had a union card I would require more to change my mind on this point than evidence that, once in a great while, under unknown circum- stance, a woman whose union affiliations are neither proven nor disproven may have been referred to work I thought the Beckers were very impressive witnesses. I believe their evidence that Tepper said that he could 46 One is "Terry Ann Jackson " The transcript (p 137) is indeed so written, but the witness was at the time reading from G C Exh 15, which shows the name to be "Terry N Jackson " refer Becker if she had a union card, testimony that finds particularly cogent support not only in Tepper's testimo- nial admission that he "could" have made such a state- ment, but also in Farrel's undenied testimony that Tepper suggested that he call the New York office of the Union in order to apply for an International card for his wife. Surely this indicates that the lack of a union card played a critical part in Tepper's refusal to refer his nephew's wife And, taking into account that Respondent Union unquestionably referred many male nonmembers for work, I can only conclude that the failure to refer Becker was based, at least in part, on a specific deficien- cy. because she was a female, she could not be referred unless she could display some sort of union affiliation. This blend of sex-and-union-related discrimination is pa- tently unlawful Pacific Maritime Assn., 209 NLRB 519 (1974), Cargo Handlers, 159 NLRB 321 (1966).47 VI THE LIABILITY OF THE EMPLOYER RESPONDENTS The complaint alleges that the Employer Respondents violated Section 8(a)(3) and (1) of the Act by virtue of the discrimination practiced by the Union Respondent in its operation of the exclusive hiring hall arrangements. The appropriateness of holding employers (even innocent ones) responsible for such conduct was expressed by the Court of Appeals for the Second Circuit in Morrison- Knudsen Co. v. NLRB, 275 F.2d 914, 917 (1960), enfg. 123 NLRB 12 (1959): But regardless of the extent of [the employers'] knowledge [of actual discrimination by the union] we agree with the Board that an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of sup- plying the men to be employed The Local acted as agent for the petitioners in selecting the men to be hired. Its discriminatory acts, which unlawfully en- courage membership in Local 545, are properly chargeable to the agent's principal as discriminatory acts by it. NLRB v. George D. Auchter Co., 5 Cir., 209 F.2d 273, 277, NLRB v F. H. McGraw & Co, 6 Cir, 206 F 2d 635, 639-640 This broad application of the doctrine of respondeat superior was not embraced by the District of Co- 47 Moreover, even if it were true that Tepper refused to refer Becker solely because of a fear of being accused of nepotism, I would think that, under Miranda Fuel Co, 140 NLRB 181 (1962), enf denied 326 F 2d 172 (2d Cir 1963), his refusal would be violative of the Act For one thing, as an obstacle to gaining a livelihood, such a consideration is itself "irrel- evant, invidious, [and] unfair," 140 NLRB at 185 Moreover, since the concern about nepotism would have extended only to adversely affect a female relative, and not Farrel Becker, the distinction would be gender related and discriminatory If, on the other hand, one were to take as the critical factor that the referral of Becker would, in Tepper's words, "open up everybody else's sister, daughter, wife, mother, you know, that they are all seeking this- on that basis, that they are relatives," the distinction is similarly invidi- ous, because the record makes clear (as indicated at the spring 1981 meet- ing hereafter discussed) that sons of members were to be afforded a pref- erence in short, I can find no basis in this record for concluding that Tepper's refusal to refer Becker did not violate Respondent Union's duty of fair representation, whatever of the several attributed reasons may have played a part in his decision WOLF TRAP FOUNDATION lumbia Circuit Court of Appeals in Lummus Co. v. NLRB, 339 F.2d 728 (1964). The Court there point- ed out that the premise of respondeat superior-that the agent is under the complete control of the prin- cipal within the area of the agent's authority- cannot be applied wholesale in the labor relations field, in which the "basic thesis for the whole of modern thought in this area is that the representa- tive of the employees is not, cannot be, and must not be under the complete control of the employ- er " Id at 735 In Lummus, the Court refused to en- force, a finding of violation against an out-of-town contractor that had deemed itself bound by a local hiring hall arrangement, but that had no involve- ment in or knowledge of isolated discriminatory acts by the union The Court would have imposed liability only in the following basic circumstances- "where an employer who is a party to an exclusive hiring-hall agreement either has actual notice, or may reasonably be charged with notice, that an ap- plicant has been unlawfully denied referral by the union, the employer's refusal to hire, if based on the applicant's failure to obtain referral, is a violation of Section 8(a)(3) and (1)." Id. at 737. The Board has continued to adhere to the principle of strict liability Frank Mascah Construction, 251 NLRB 219, 222 (1980), recently stated, "Thus, the Board has consistently held that when an employer delegates hiring to a union by utilizing a union referral-system to obtain its employees, it is responsible if the union operates the system in a discriminatory manner This is so even if the employer has no actual knowledge of the Union's dis- crimination." Accord. Q V L. Construction, 260 NLRB 1096 (1982) Although there is not, in the present case, any evi- dence that representatives of the Employer Respondents had actual knowledge, or were reasonably chargeable with knowledge, of the Union Respondent's discrimina- tory treatment of Regina Becker,48 it would ordinarily be my obligation to apply the absolute liability theory enunciated in such cases as Morrison-Knudsen and Mas- cali Construction. See Iowa Beef Packers, Inc, 144 NLRB 615, 616 (1963) Wolf Trap, National, and Ford's con- tend, however, that the Supreme Court's recent decision in General Building Contractors Assn. v Pennsylvania, 458 U S. 375 (1982) is contrary and controlling That case involved, inter alia, a claim under 42 U.S C. § 1981 to redress alleged racial discrimination in the op- eration of an exclusive hiring hall The Supreme Court, tracing the legislative history and context of the statuto- ry provision, first held that it was limited in its reach to "conduct motivated by a discriminatory purpose," and did not also encompass (as does Title VII) "practices that merely result in a disproportionate impact on a par- ticular class." 458 U.S at 386-387 The Court then went on to hold that, in the absence of specific proof of an intent to discriminate on their part, employers that were 48 Becker did testify that she made a complaint to Hankenson, the Wolf Trap executive director, that she was being denied employment be- cause, inter alia, of her sex Hankenson, however, left his post prior to the 10(b) period 1057 parties to a discriminatorily operated hiring hall could not be held in violation of § 1981 by "the application of traditional respondeat superior doctrine." Echoing Morrison -Knudsen, the Court stated that "the relationship between an employer and the union that rep- resents its employees simply cannot be accurately char- acterized as one between principal and agent or master and servant Indeed, such a conception is alien to the fundamental assumptions on which the federal labor laws are structured " The Court also cited the earlier-quoted passage from Lummus for the proposition that the "power to oppose" a union is not the same as a "right to control" the union. The Court further rejected an argument that § 1981 imposed a "nondelegable duty" on employers to assure absence of discrimination in their hiring processes As stated , the first question addressed by the Court in General Building Contractors was whether § 1981 could be violated only by a showing of "purposeful discrimina- tion," id. at 391, or whether some less stringent basis for liability could be sustained , such as engaging in "prac- tices that merely result in a disproportionate impact on a particular class," id. at 386 By undertaking such a threshold inquiry, the Court seemed to imply that adop- tion of the latter construction would, or might, permit a conclusion that an innocent employer who simply par- ticipates in a discriminative hiring hall could be held liable under the statute , if such a context could not in any event give rise to liability , there would appear to have been no reason to examine into the question in the first place Accordingly , the question of the application of General Building Contractors to the National Labor Relations Act would seem to call for a parallel analysis, that is, does Section 8(a)(3)49 necessarily require specific proof of a discriminatory intent, or may the provision be violated by action not shown to have been animated by an actual unlawful intent Early on, the Supreme Court referred to the "true pur- pose" or "real motive" as constituting the test of unlaw- fulness under Section 8(a)(3) and Section 8(b)(2), see Radio Officers v. NLRB, 347 U S 17, 43 (1954), but sub- sequently, in Teamsters Local 357 (Los Angeles-Seattle Motor Express) v. NLRB, 365 U S. 667, 681 ( 1967), Jus- tice Harlan explained in a concurring opinion that an em- ployer may violate Section 8(a)(3) even though his motive is nondiscriminatory where his action was caused by union coercion. Justice Harlan went on to say that it was presently unnecessary to decide "whether there are other contexts in which a showing of an actual motiva- tion of encouraging or discouraging union activity might be unnecessary to a finding of a union or employer unfair labor practice " Id. at 681 Since then, the Supreme Court has specifically held that some conduct is "so `inherently destructive of em- ployee interests that it may be deemed proscribed with- out need for proof of an underlying improper motive " 49 "It shall be an unfair labor practice for an employer by discrim- ination 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 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB v. Great Dane Trailers, 388 U.S 26, 33 (1967). See also American Ship Building v NLRB, 380 U.S. 300 (1965); NLRB v. Brown Food Stores, 380 U.S. 278 (1965); and NLRB v. Erie Resistor Corp, 373 U.S. 221 (1963). While these cases rest on an inferred intent based on rea- sonable foreseeability, that seems to be a fictive legalism that may not be as meaningful as "purposeful discrimina- tion." It would thus appear that, unlike 42 U S.C § 1981, a showing of "purposeful" discrimination may not be nec- essary to a conclusion that an employer has violated Sec- tion 8(a)(3). Furthermore, since the Court, in deciding that § 1981 does not impose a "nondelegable duty" on the employer to assure freedom from discrimination, relied in part on the fact that that statute "merely de- clares specific rights," a different result might be urged under a law like Section 8(a)(3), which arguably may "speak in terms of duties " 458 U.S. at 396. It also might be contended that the Board's approach in these hiring hall cases need not necessarily be viewed as resting on the premise of a principal-agent relation- ship, although one suspects that such a theory is what the Board has usually had in mind. While the Board has indicated reliance on a principal-agent analysis, e.g., Lummus Co., 142 NLRB 517, 520, at other times (per- haps as a result of the appellate decision in Lummus), it has not.50 In Mascali Construction, supra, as earlier quoted, the Board did not expressly refer to any princi- pal agent theory, but instead simply made the employer "responsible" when it "delegates" hiring to a discriminat- ing union 51 Given the venerability of the Board's doctrine holding employers to strict liability in these situations, and given the arguable distinctions between § 1981 and Section 8(a)(3), I cannot conclude that General Building Contrac- tors so plainly compels a departure from the Board's longstanding position that I must ignore my duty to apply Board law until it is authoritatively reversed Iowa Beef Packers, supra I shall therefore recommend that the Respondent Employers (with the exception of Warner's, as hereafter noted) be held in violation of Section 8(a)(3) and (1) of the Act. VII. THE ALLEGATIONS OF COERCIVE STATEMENTS Finally, the complaint alleges that the Union violated the Act by certain statements made by Tepper in 1981. 50 The "principal-agent" underpinning relied on by the Court in Morn son-Knudsen, supra, was not present in the Board's decision in that case, the Board had simply held that the employers had violated Sec 8(a)(3) "by maintaining in effect an exclusive hiring hall arrangement and prac- tice under which nonmembers of Local 545 were discriminated against thereby encouraging membership in Local 545 " 123 NLRB 12, 13 The Trial Examiner had reasoned (123 NLRB at 24, emphasis added) "[Bly establishing the arrangement, they had placed in the Union's hands the power of effecting discrimination among their employ- ees and applicants Having in effect licensed the Union to operate their employment office for them, their responsibility continued to assure themselves that the Union did not maintain it on a discriminatory basis " 51 I note, however, that in General Building Contractors, the Court also rejected a contention that the employers could be held liable on a "joint enterprise" theory 458 U S at 347 fn 21 Whether there are other viable legal liability doctrines left unconsidered is a good question The Court did not go on to specifically categorize the legal relationship of an em- ployer and a union in the operation of a hiring hall Two of these allegations are that in or around the end of May 1981, and in the summer of 1981, Tepper stated that certain employees would not work through the union hiring hall because "said employees were (1) women and (2) not members of Respondent Union." I have noted Allen Perry's credible testimony that during the summer of 1981, Tepper told him at least once that he "doesn't work women without union cards " Similar- ly, Ronald Cuffe testified that in the spring of 1981, Tepper said that if Becker had "a union card from an- other local or a card from the International that he would be able to work her." I find the 8(b)(1)(A) viola- tions as alleged. While the statements would not have been directly coercive to Perry or Cuffe, who did not share Becker's gender disability, they conveyed an arbi- trariness that itself would tend to affect employees in the exercise of their Section 7 rights The third such allegation is that around July or August 1981, Tepper told an applicant that "potential employees would only be referred to jobs if members of Respondent Union refused said potential job offers first, because said potential employees were not members of Respondent Union " Allan Perry, not a member of the Union, credibly and without controversion testified that around September 1981, Tepper told him that a 2- or 3-day job was coming up and asked if Perry owned certain equipment neces- sary to performing the work Perry expressed interest Tepper said that he would have to call Al Lakomyj "and offer it to him first, and if he doesn't want it, you can have it." Lakomyj is a union member. A few days later, Tepper told Perry that Lakomyj had accepted the job. Perry's account does not indicate that Tepper linked Lakomyj's membership to the need to prefer Lakomyj for the job. Even though the incident is suspicious, there obviously could have been a legitimate explanation for the perceived need to offer the work to Lakomyj first, such as that Lakomyj had first called in for work, or that Perry had been working more than Lakoinyj and Tepper wanted to equalize the situation, or something similar. Accordingly, I would not find a violation on these bare facts. The final allegation in this category is that around April 1981, the Union refused to represent potential em- ployees fairly by agreeing at a membership meeting that job openings would be filled from the hiring hall in a dis- criminatory manner. Farrel Becker testified that at a union meeting in the spring of 1981, Tepper asked the members for guidance on referral policy because there had been some com- plaints After discussion, Tepper announced as the "wish of the membership" that the priority of referral would be "members first, then sons of members who had union cards and then anybody else who had a union card, then sons of members who did not have union cards and then anybody else." Although the union minutes reflect no such discussion, Union President Ryan testified that the membership ex- presses its position on referral policy every now and again at meetings, and that unless a related motion is made and carried, the discussion is not recorded. Fur- WOLF TRAP FOUNDATION 1059 thermore, although Tepper at first did not "specifically recall any particular meeting" at which referrals were discussed, it "could have been brought up from the floor"; then, immediately asked again, he said, "I remem- ber discussion, and all of this was strictly discussion, and I don't remember what it was But nothing was ap- proved on the floor or passed officially." I credit Farrel Becker I further find that Tepper's adoption and proclamation of a membership policy by virtue of which union mem- bers and their sons were to receive preference in referral plainly tended to unlawfully encourage adherence to union membership and was violative of Section 8(b)(1)(A) 52 VIII THE UNALLEGED AND UNLITIGATED CONTENTION On brief, the General Counsel urges that I consider a contention not expressly made in the complaint or at the hearing, namely, that "the Union operates its exclusive referral system without the use of objective criteria or standards and has thus engaged in arbitrary conduct that is violative of its duty of fair representation " For openers, I think the General Counsel is wrong in arguing that the complaint effectively alleges that the general operation of the hiring hall is in issue The fact that conclusionary paragraph 33 refers, inter alia, to ear- lier allegations mentioning the hiring hall arrangements and states that, in connection therewith, the Union has "failed to represent potential employees for reasons which are" unfair, arbitrary, and invidious, is not at all the same thing as saying that the hiring hall is, by virtue of its lack of objective standards, an unlawfully operated institution. At the least, some words such as "in a manner which is" would have been needed Moreover, at the hearing, a question arose about the relevance of certain evidence Counsel for National argued its irrelevancy, pointing out that the complaint was a specific one and that there was nothing "in the nature of non-union persons were consistently paid less than union persons or something to that effect in the complaint itself" I then asked counsel for the General Counsel if he intended "to try to prove some sort of case about the operation of the hiring hall in general, or just in relation to Ms Becker," and the response was "This complaint, your honor, only seeks a backpay remedy with respect to Ms. Becker. This is not a case where we are claiming that unnamed discriminatees have been dis- criminated against Only involves Ms Becker." Although I am sure that counsel had no intention to mislead, his clearly negative reply to my broad question obviously would have caused other counsel to believe that the "general operation" of the hiring hall was not in conten- tion. Finally, I do not believe that the issue was fully litigat- ed. As in Operating Engineers Local 324 (Associated Gen- eral Contractors), 226 NLRB 587, 594 (1976), I do not 52 The extent to which Tepper carried out this mandate was not liti- gated I shall not assume, for purposes of this case, that he has complied with the membership policy think it appropriate to address the proposed issue in a half-cooked context like the current one. I must say, gratuitously, that this particular referral system could probably stand some further investigation, given, among other things, the evidence as to the treat- ment of Becker and the discriminatory referral "policy" adopted at the spring meeting in 1981 But the subject of any such investigation would be due more process than the Union has received in this case before further find- ings could appropriately be made CONCLUSIONS OF LAW 1. Respondents Wolf Trap Foundation for the Per- forming Arts, Ford's Theatre Society, 513 13th St , N W, Inc, t/a Warner Theatre, and The New National Theatre Corporation, t/a National Theatre, are employ- ers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction over them in this proceeding 2 Respondent International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. At material times, the Employer Respondents have maintained exclusive hiring hall arrangements with Re- spondent Local 22. 4. By in 1981 maintaining provisions in collective-bar- gaining agreements giving preference in employment to union members over nonmembers, Respondent Local 22 violated Section 8(b)(1)(A) and Respondents Wolf Trap and Ford's violated Section 8(a)(1) of the Act. 5 By after April 20, 1981, discriminating against Regina Becker because she was a female nonmember of Local 22 or an affiliated organization, Respondent Local 22 violated Section 8(b)(2) of the Act 6. By in spring and summer 1981 making statements to employees that other employees would be discriminated against because of their gender and lack of union mem- bership, and by proclaiming a referral policy that gave preference to union members and their sons, Respondent Local 22 violated Section 8(b)(1)(A) of the Act 7 By after April 20, 1981, maintaining in effect an ex- clusive hiring hall arrangement and practice with Re- spondent Local 22 pursuant to which Regina Becker was discriminated against because she was a female non- member of Local 22 or an affiliated organization, Re- spondents Wolf Trap, National, and Ford's violated Sec- tion 8(a)(3) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 9 The Respondents have not violated the Act as al- leged in the complaint except to the extent set out above. THE REMEDY Having found that the Respondents have violated the Act in various ways, it is appropriate to order that cer- tain remedial action be taken Having found that Respondent Local 22 unlawfully denied referral to Regina Becker since April 20, 1981, I 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shall recommend that Respondent Local 22 be required to make Becker whole for any loss of earnings suffered as a result of the discrimination against her by payment to her of a sum of money equal to that which she nor- mally would have earned as wages from the date of the discrimination until such time as it is determined that Re- spondent Local 22 began to properly refer, or has begun to properly refer, Becker for employment, less net inter- im earnings during such period. Backpay is to be com- puted in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Flori- da Steel Corp, 231 NLRB 651 (1977). 53 Respondent Local 22 shall also be required to make contributions to any trust funds that would have been made on Becker's behalf had she been lawfully referred to employment. It is also appropriate that the Employer Respondents be required to remedy these violations if that becomes necessary. As the Respondents point out, in Mascali Con- struction, supra, 251 NLRB at 222, and Q. V.L. Construc- tion, supra , 260 NLRB at 1097, the Board ruled that em- ployers who are party to discriminatory hiring hall sys- tems should be held only secondarily liable if, even if they had investigated the union's operation of the hiring hall system, they would not have discovered the discrim- ination. I am not sure that such a finding could be made in this case , or in many cases, because an intensive inves- tigation could probably uncover a good deal of informa- tion 54 Nonetheless, there is no indication in the record that any of the Employer Respondents had any good reason to believe that Becker was the object of discrimi- nation by Tepper, and it seems reasonable to hold, as I do, that the primary actor-Local 22-should be held primarily responsible for compensating Becker, with the employers being relegated to a secondary remedial ca- pacity As the foregoing Conclusions of Law indicate, I would not find Warner Theatre guilty of a violation on this issue or subject to a remedy for the treatment of Becker. The record is quite clear that after October 1, 1981, when Local 22 assumed the bargaining responsibil- ities formerly held by Local 224-A, Tepper did not him- self make referrals to Warner's and instead left that func- tion exclusively to the former Local 224-A steward, who was then denominated an "assistant business agent" of Local 22 There is no showing in the record that Becker ever requested referral to Warner's or that the steward failed to refer Becker to work at the Warner Theatre for reasons prohibited by law.ss An estimate of the referrals that Becker might have re- ceived after April 20, 1981, had she not been subjected to discrimination, will obviously involve a fair amount of speculation and will be determined in the compliance stage of this proceeding It should be pointed out, how- 53 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 54 As indicated above, Hankenson of Wolf Trap did hear from Becker that she thought that she was being discriminated against because of her sex, but he left his post at Wolf Trap prior to the 10(b) date 55 Given my conclusion that none of the employers can be charged with knowledge of the discrimination, it may seem strange to exculpate only Warner's, but logic pushes me into that position There were, in effect, four separate hiring hall arrangements here There was no Tepper, and therefore no proven discrimination, in the operation of the Warner's- Local 22 hiring channel ever, that if it becomes necessary to enforce the second- ary liability against the three Employer Respondents here imposed, equity would require that the burden of reimbursement be allocated between them according to the relative volume of use of stagehands by each of them during the backpay period It is also appropriate to order that the traditional cease-and-desist orders be issued and the customary no- tices posted. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER A Respondent International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 22, AFL-CIO, Wash- ington, D.C , its officers, agents, and representatives, shall 1 Cease and desist from (a) Discriminating in the operation of a hiring hall system against Regina Becker or any other person on the basis of gender or nonmembership in a union. (b) Agreeing to and maintaining provisions in collec- tive-bargaining agreements that give preference for em- ployment to members of a union over nonmembers (c) Making statements to employees that other employ- ees would be discriminated against because of their gender and their nonmembership in a union. (d) Proclaiming a referral policy that gives preference to union members and their sons. (e) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole Regina Becker for any loss of wages and other benefits she may have suffered by reason of Respondent Union's discriminatory failure to refer her to employment after April 20, 1981 Backpay with interest shall be computed as described in the remedy section of this decision. In addition, make whole Regina Becker by making contributions on her behalf to any funds to which such contributions would have been made had she been lawfully referred to employment. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all records necessary for the determination of the amount of backpay and other remedial relief due under the terms of this Order. (c) Post at its business offices, union halls, and any other places where it customarily post notices to mem- bers copies of the attached notice marked "Appendix A."57 Copies of the notice, on forms provided by the 56 In the event no exceptions are filed as provided in Sec 102 46 of the 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 waived for all purposes 57 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 Nation- Continued WOLF TRAP FOUNDATION 1061 Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material (d) Forward signed copies of said notice to the Re- gional Director for posting by Respondents Wolf Trap, National, and Ford's, at all locations in their places of business where notices to employees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B Respondent Wolf Trap Foundation for the Per- forming Arts, Washington, D.C, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Agreeing to and maintaining provisions in collec- tive-bargaining agreements that give preference for em- ployment to members of a union over nonmembers (b) Maintaining with Respondent Local 22 or any other labor organization an exclusive hiring hall system under which applicants for employment are discriminat- ed against because of their gender or nonmembership in a union (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) If it becomes necessary, in accordance with the remedy section of this decision, make whole Regina Becker for any loss of earnings and benefits she may have suffered by reason of the discrimination against her. (b) Preserve and, on request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of backpay which might become due under this Order. (c) Post at its place of business copies of the attached notice marked "Appendix B."58 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. C. Respondent The New National Theatre Corpora- tion, t/a National Theatre, Washington, D C., its officers, agents, successors, and assigns, shall al 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 58 See fn 57, supra 1. Cease and desist from (a) Maintaining with Respondent Local 22 or any other labor organization an exclusive hiring hall system under which applicants for employment are discriminat- ed against because of their gender or nonmembership in a union (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) If it becomes necessary, in accordance with the remedy section of this decision, make whole Regina Becker for any loss of earnings and benefits she may have suffered by reason of the discrimination against her. (b) Preserve and, on request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of backpay that might become due under this Order (c) Post at its place of business copies of the attached notice marked "Appendix C."59 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. D Respondent Ford's Theatre Society, Washington, D.C , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Agreeing to and maintaining provisions in collec- tive-bargaining agreements that give preference for em- ployment to members of a union over nonmembers (b) Maintaining with Respondent Local 22 or any other labor organization an exclusive hiring hall system under which applicants for employment are discriminat- ed against because of their gender or nonmembership in a union (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) If it becomes necessary, in accordance with the Remedy section of this Decision, make whole Regina Becker for any loss of earnings and benefits she may have suffered by reason of the discrimination against her (b) Preserve and, on request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of backpay that might become due under this Order. (c) Post at its place of business copies of the attached notice marked "Appendix D "60 Copies of the notice, on 59 See fn 57, supra 60 See fn 57, supra 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply SUPPLEMENTAL DECISION AND ORDER ON REMAND BERNARD RTES, Administrative Law Judge. On 28 De- cember 1983 1 issued a decision in these consolidated matters . On 25 July 1986 the Board remanded the cases to me for further consideration in light of its recently issued Res-Care, Inc., 280 NLRB 670 ( 1986), and Long Stretch Youth Home, 280 NLRB 678 (1986), "including, if necessary, a reopening of the record on the jurisdiction issue" and for issuance of a supplemental decision On 5 August 1986, I issued to all parties an order to show cause why I should not proceed with the prepara- tion of such decision without either reopening the record or receiving briefs i By the return date of 22 August, I had received only one response, a letter from counsel for Warner Theatre asking only that it be advised if any issue was raised in a supplemental proceeding that might affect the interests of Respondent Warner. Having re- ceived no objection to my announced course of action, I turn now to the merits. The Issue In my original decision, I concluded that the Board should, consistent with precedent , assume jurisdiction over the Wolf Trap Foundation for the Performing Arts, one of the four Employer Respondents in the case. Res- Care and Long Stretch, supra, both deal with the issue raised in the original proceeding before me as to Wolf Trap-whether its ties with an exempt agency (in Wolf Trap's case, the National Park Service of the Depart- ment of the Interior) are such as to preclude the asser- tion of Board jurisdiction over Wolf Trap, an otherwise nonexempt employer. As the Board summarized Res-Care in Long Stretch at 681: In Res-Care, we held that the employer, who op- erated a job corps center pursuant to a contract with the United States Department of Labor (DOL), did not have sufficient discretion in setting wages and benefits to engage in meaningful bargain- ing In that case, DOL approved minimum-maxi- mum wage ranges , as well as specific levels of vari- ' As to the former , I indicated my belief that the issue in question had been fully litigated in the original proceeding , as to the latter, I felt that since briefs addressed to me would hardly "definitively resolve" the matter, briefs to the Board , after I had ' issued this supplemental decision, "would be much more efficient use of the parties' time " ous employee benefits The employer could not set initial wages or grant a wage increase higher than the approved maximum, could not provide greater benefits than those contained in the approved bene- fit package The exempt entity exercised ultimate discretion over basic economic terms. DOL's total cost of the contract , embodied in the contract price, included the wage levels proposed by the employer and approved in advance by the exempt entity. Any attempt by Res-Care to pay wages or benefits above the approved maximums would result in a determi- nation of "disallowable costs," and a reduction of Res-Care's payments under the contract In Res-Care (Member Stephens concurring and dissent- ing), the Board concluded that in applying the principal existing test, laid down in National Transportation Service, 240 NLRB 565 (1979), of whether the private employer retained sufficient control over the employment condi- tions of its employees to enable it to engage in "effec- tive" or "meaningful" bargaining with a labor organiza- tion, "the Board has not set forth a clear or consistent explanation of the elements of effective or meaningful bargaining " 280 NLRB at 670, 672 In administering the National Transportation Service test hereafter, the Board said, "[W]e will examine closely not only the control over essential terms and conditions of employment re- tained by the employer, but also the scope and degree of control exercised by the exempt entity over the employ- er's labor relations, to determine whether the employer in issue is capable of engaging in meaningful collective bargaining." Ibid . The Board went on (id. at 673-674): As in Singer Co, supra, 240 NLRB 965, in this case the Employer alone is responsible for hiring, firing, promotions , demotions, and tranfers . In addi- tion, the Employer in this case has final authority over grievances. We agree with those circuit court decisions, however, that have recognized the exist- ence of a core group of "basic bargaining subjects" and have held that if an employer retains control over decisions affecting those subjects, meaningful bargaining is possible . Conversely, therefore, if the employer does not have ultimate authority over these subjects, we would find that meaningful bar- gaining is precluded . Without denigrating the im- portance of other personnel -related issues , we hold that if an employer does not have the final say on the entire package of employee compensation, i.e , wages and fringe benefits , meaningful bargaining is not possible. . We find that the facts in this case warrant declin- ing to assert jurisdiction Thus, [the Department of Labor] must approve the initial amounts for wages and benefits that Res-Care proposes in its budget, as well as wage ranges and benefit levels proposed by Res-Care; and retains ultimate discretion to approve or disapprove any change in wage rates, benefit levels, or personnel policies. When an employer like Res-Care lacks the ulti- mate authority to determine primary terms and con- ditions of employment , such as wage and benefit WOLF TRAP FOUNDATION 1063 levels, it lacks the ability to engage in the necessary "give and take" which is a central requirement of good-faith bargaining, and which makes bargaining meaningful. Despite its general references to making a close exami- nation of "not only the control over essential terms and conditions of employment retained by the [private] em- ployer, but also the scope and degree of control exer- cised by the exempt entity over the employer's labor re- lations," supra at 672, the Board's repeated allusions to control over "wages and benefits"2 make clear that the locus of the latter authority is to be considered the mean- ingful one for present purposes.3 In Long Stretch, supra (Member Stephens concurring; Chairman Dotson dissenting) the Board chose to assert jurisdiction over the private entity. The Board found that even though the Government agency involved (Maryland Social Services Administration (MSSA)) issues cost guidelines suggesting minimum and maximum salary ranges for each job classification, the private em- ployer may pay more than the maximum and less than the minimum, unless the amount appears to the MSSA representative to be "grossly unfair" and not supported by a "plausible explanation." The record showed, ac- cording to the Board, that "Long Stretch largely deter- mines what its personnel policies will be," although it subsequently also stated that "MSSA reviews and ap- proves these personnel policies, which include salary ranges and hours, and vacation, sick leave, and retire- ment policies" (despite the use of the term "approves," however, the Board goes on to state that the "purpose" of the review is simply to assure that Long Stretch "has" personnel policies, but "these do not have to be in a spe- cial form"). The record in Long Stretch disclosed that the govern- mental agency does not maintain "strict standards" for Long Stretch's personnel policies, beyond certain mini- mum qualifications for some staff members and a mini- mum number of days off Only "major" changes in bene- fits need be submitted for "the agency's approval." MSSA requires the number and type of staff positions to be filled, and while it "has no control over who is hired 8 E g , Res-Care at 674 "In our view the ability of an employer to have the final, practical say regarding wages and benefits, and the union's practical ability to affect the employer's decision by resort to economic action is fundamental ", Res-Care, ibid "When an employer like Res-Care lacks the ultimate authority to determine primary terms and conditions of employment , such as wages and benefit levels , it lacks the ability to engage in the necessary 'give and take ' which is a central requirement of good-faith bargaining, and which makes bargainig meaningful," Long Stretch at bbl "By contrast, in this case, [the state agency] does not exer- cise ultimate discretion over wage and benefit levels" I In so illuminating its approach , the Board stressed that its declination of jurisdiction ovei Res-Care did "not rely on the pervasive operational controls exerted by DOL over Res-Care in matters other than those per- taining to labor relations," noting that many agencies perform a "general review of the budgets of the private employers with whom they con- tract" to assure that expenditures are "reasonable," but holding that such a review does not "sufficiently deprive the employer of ultimate control over essential terms and conditions of employment" so as to prevent meaningful bargaining Rev-Care, 280 NLRB at 674 in 22 The Board did not explain precisely how an authoritative review for reasonableness fun- damentally differed from the more detailed controls reposed in the De- partment of Labor in the Res-Care case by Long Stretch," at the same time it does "review each hiring decision to assure compliance with the agency's minimum qualifications" and can "veto" any such hiring. The agency can require discharge in cases in which the employee has failed to meet "minimum qualifications" or has been found guilty of child abuse The facts that the Board has found it necessary to cure a "lack of clarity" (Res-Care at 672) in existing prece- dent, and has produced a formula to which all five mem- bers seemingly subscribe, but has also, in two lead cases, produced two majority opinions, one concurring and dis- senting opinion, one concurring opinion and one dissent- ing opinion, strongly suggests that we are dealing in an area that often offers no obvious answers 4 Having done so once before, I see no need to again set out in detail the relationship between Wolf Trap Farm Park and the Park Service. As previously noted, the 1980 agreement between the two parties states that the Service will either "provide or pay for" staff personnel, but as for stagehands, the Service "shall" contract with the Foundation (as, it would appear, an independent con- tractor) to provide such services; and the Service's obli- gation to provide stagehand services "shall be limited to the amount of appropriations made for that purpose Any stagehand services required in excess of the amount made available by appropriations for that purpose shall be the responsibility of the Foundation" (emphasis added), which, as the agreement elsewhere states, is intended to become "a financially self-sufficient operation" and is itself required to furnish all funds necessary in excess of legislative appropriations (to be derived from admission charges, concession fees, entrepreneurial arrangements, and other income). As indicated in my earlier decision, the procedure cur- rently used is for the Foundation to submit a "proposal" to the Park Service yearly "to provide stagehand serv- ices" for a certain annual sum No other provision of the basic agreement bears any direct relationship to "the entire package of employee compensation, i.e., wages and fringe benefits" (Res-Care at 674) except the follow- ing "Hourly rates shall be in accordance with the 1981 Basic Collective Bargaining Agreement between Local 22 IATSE and Wolf Trap Foundation" (the Union and the Foundation have engaged in collective bargaining with regard to the stagehands' unit since at least 1971). The formal contractual relationships between the pri- vate and public entities involved here, unlike that in Res- Care, thus impose no restraint whatsoever on the ability of the private employer to have the "final say on the entire package of employee compensation"; indeed, the basic agreement contemplates that hourly rates paid shall track whatever amount is derived from collective bar- gaining between Local 22 and Wolf Trap Foundation 4 In Long Stretch, for example, it could be argued that the agency's requirement that Long Stretch "submit major changes in employee bene- fits as 'program changes' for the agency's approval" vests such a degree of authority in the exempt entity as to require a holding that the employ- er "lacks the ultimate authority to determine primary terms and condi- tions of employment" and leaves the private employer in no position to engage in "meaningful bargaining " 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and, if wages are in excess of the appropriated amount, they "shall be the responsibility of the Foundation." The only other evidence relevant to the question of who has "the final say on the entire package of employ- ee compensation, i e, wages and fringe benefits," thus making "meaningful bargaining . . possible,"5 is the fact that the practice has been for representatives of both the Foundation and the Park Service to participate joint- ly in bargaining negotiations with Local 22 6 Apparently, the highest ranking official of the management side serves as the management spokesman. That official would normally be the executive director of Wolf Trap, but since that position changes occupants virtually every year, the Park Service officials have sometimes (perhaps less than half the time) assumed the role of spokesman when, in the words of a Park Service manager, the cur- rent Foundation executive director has not demonstrated a "strong negotiating personality " There is testimony by a Park Service witness, in answer to a leading question, that the Service "sets the limits of what the Park is willing to go to in its negotia- tions,"' but another Service official said, "[I]t's kind of a consensus . . . . [Q]uite often the final position is our recommendation if it's agreed to by both sides." A former Wolf Trap executive director, who seemed to have no axe to grind, testified that, as "principal negotiator," he viewed himself as the one "responsible to negotiate" and that there could be a situation in which he would be ne- gotiating without knowing how much money the Gov- ernment would be making available for the contractual period. Quite clearly, the written relationship between the Foundation and the Service does not empower the Serv- ice to have the "final say" over the setting of wages and fringe benefits for stagehands, and the evidence as to past practice does not reflect that the parties have conscious- 5 In Res-Care and Long Stretch, as seen, the Board has seemingly es- chewed the assignment of any material weight to such other "personnel- related" factors as "hiring, firing demotions, transfers [and] grievances " Res-Care at 673-674 Accordingly, the evidence that, as I earlier found, "Park Service officials exercise considerable authority over the stagehands" (although perhaps not directly) presumably cannot carry the day for Respondent Wolf Trap here 6 Cf Member Stephens' concurring and dissenting opinion in Res-Care (at 675) ("Of course, if there were evidence that DOL was an active presence at the bargaining table, intruding itself into the bargaining proc- ess, a different conclusion should be drawn," with Compton v Maritime Union, 533 F 2d 1270, 1275 (1st Cir 1976), in which the court found room for effective bargaining despite the fact that the exempt agency "has participated in some labor negotiations and has signed, as a guaran- tor, some labor contractors " ' The record does not disclose the number of negotiations in which the witness had participated ly accepted that allocation of authority as given. There is contradicted testimony by a former executive director that the Foundation (which both it and the Service intend to become a "financially self-sufficient operation") has paid as much as "around $60,000" out of its own funds for stagehands in 1980, when funding by the Serv- ice "was in the neighborhood" of $400,000, although that may have been an exceptional year (another Foundation witness testified that the excess in 1980 was only $2300 )8 In 1982, the Foundation paid out $4000 of its own funds for stagehands. I noted in my previous decision that the burden of es- tablishing jurisdiction normally falls to the General Counsel, but "that may not be so when the exercise of the Board's discretion not to assert jurisdiction is in- volved, if indeed that is the issue here, see the majority and minority opinions in National Transportation Service, supra, as earlier discussed [at fn. 21]." Res-Care clarifies that when the private entity is a statutory "employer" with statutory "employees," the Board's "only inquiry is whether, in exercising our discretion, we should decline to assert jurisdiction because of the extent to which DOL, an entity exempt from our jurisdiction, con- trols the employment conditions of Res-Care's employ- ees." Res-Care at 670 fn. 1. In my earlier decision, I also noted NLRB v. Austin Developmental Center, 606 F 2d 785, 789 (7th Cir. 1979), which seems to hold that burden of persuasion rests on the party seeking exemp- tion ("Similarly, [the nonexempt entity] has not shown that it lacks effective control over its own labor rela- tions"). Considered in the light cast by Res-Care and Long Stretch, it is now even more forcefully my view that the Board should exercise its discretionary jurisdiction over Respondent Wolf Trap with respect to its relationship with its stagehand employees. There is nothing in this case similar to the network of controls established by the exempt entity over the nonexempt one in Long Stretch, and yet in that case the Board still chose to invoke its jurisdiction. I conclude that the record fails to establish that the private employer here "does not have the final say on the entire package of employee compensation, i e, wages and fringe benefits" that, therefore, "meaningful bargaining is . . . possible." Res-Care, supra at 674 ORDER The order previously recommended is reaffirmed 6 Res-Care at 674 fn 21 "Although theoretically Res-Care could in- crease the compensation of employees from its own funds, it has chosen not to do so" (emphasis added)