Actors' Equity Association

National Labor Relations Board - Board Decisions

Feb 19, 1980

247 N.L.R.B. 1193 (N.L.R.B. 1980)

ACTORS' EQUITY ASSOCIATION
Actors' Equity Association and John Clark and
League of Resident Theatres; League of New York
Theatres and Producers; Council of Resident Stock
Theatres; American Dinner Theatre Institute; Pro-
ducers League of Theatre for Young Adults; Musi-
cal Theatre Association; League of Off-Broadway
Theatres; Council of Stock Theatres, Parties to the
Contract. Case 2-CB-6436
February 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 29, 1979, Administrative Law Judge David
S. Davidson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and the General Counsel filed
exceptions, a supporting brief, and an answering brief.
Respondent filed an answering brief to the General
Counsel's exceptions.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Actors' Equity Associa-
tion, New York, New York, its officers, agents and
representatives, shall take the action set forth in the
said recommended Order.
' Inasmuch as the record and briefs adequately set forth the issues and
positions of the parties, Respondent's request for oral argument is hereby
denied.
:On December 4, 1979. Respondent filed a motion for leave to reopen the
record to adduce additional evidence. In its motion. Respondent requested an
opportunity to adduce further evidence regarding the employment status of
actor Yul Brynner. In this regard Respondent also sought to file a reply brief
in response to certain issues raised by the General Counsel's exceptions and
supporting brief
On December 20, 1979, the General Counsel filed an opposition to
Respondent's motion to reopen the record.
Having duly considered the matter, we find that Respondent has not shown
any extraordinary circumstances warranting reopening of the record. The
employment status of Brynner was in issue at the hearing. and all parties had
the opportunity to present evidence relating thereto. Accordingly. Respon-
dent's motion for leave to reopen the record and its request for permission to
file a reply brief are hereby denied.
247 NLRB No. 172
In adopting the conclusions of the Administrative Law Judge, Chairman
Fanning and Member Truesdale find it unnecessary to rely on the Adminis-
trative Law Judge's drawing of an analogy between the dues structure at issue
herein and broad contractual superseniority clauses as discusses in Dairylea
Cperalive. Inc.. 219 NLRB 656 (1975).
DECISION
STATEMENT O: THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed on October 8, 1976, by John
Clark, an Individual. The complaint issued on January 19,
1978, alleging that Respondent arbitrarily, invidiously, and
unfairly discouraged and precluded certain of its members
from obtaining employment and breached its duty of fair
representation by requiring nonresident aliens to maintain
membership in Respondent as a condition of employment by
paying dues in amounts greater than required for citizens or
resident aliens. The complaint alleged further that by
maintenance of the dual dues structure in conjunction with
union-security agreements Respondent caused and attempt-
ed to cause employers to discriminate against employees on
grounds other than their failure to tender periodic dues and
initiation fees uniformly required as a condition of acquiring
or maintaining membership. The complaint alleges that
Respondent thereby violated Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, herein called the Act. In
its answer Respondent denied the commission of any unfair
labor practices and raised a number of affirmative defenses.
A hearing was held before me in New York, New York,
on June 12 and 13 and August 21 and 22, 1978. Over the
objection of Respondent the General Counsel was permitted
to amend the complaint at the hearing to allege that the
union-security clauses in three of Respondent's contracts
further violated Section 8(b)(1)(A) and (2) for failure to
comply with the requirements of the provisos of Section
8(a)(3) of the Act. Respondent denied the additional
allegations of the complaint and was permitted to file a
comprehensive amended answer after the close of the
hearing restating its answer and its affirmative defenses.' At
the conclusion of the General Counsel's case-in-chief the
parties made Cross-Motions for Summary Judgment and
dismissal, and during the recess counsel for the General
Counsel and Respondent filed briefs in support of their
motions. Prior to the resumption of the hearing both
motions were denied. At the conclusion of the hearing the
parties were given leave to file briefs, which have been
received from the General Counsel and Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor I make the
following:
' Respondent's amended answer is received in evidence as Resp. Exh. 21.
By agreement of the parties I have also received in evidence as Resp. Exh. 20 a
copy of the "First Annual Report of British Actors' Equity Association" and
as G.C. Exh. 16 A-H excerpts from the minutes of Respondent's council
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCUSIONS
I. THE BUSINESS OF THE EMPI.OYERS
The League of Resident Theatres, the League of New
York Theatres and Producers, the Council of Resident Stock
Theatres, the American Dinner Theatre Institute, the
Producers League of Theatre for Young Adults, the Musical
Theatre Association, the League of Off-Broadway Theatres,
and the Council of Stock Theatres are associations of
employers who are engaged in producing and presenting to
the public live theatrical events. These associations exist,
among other things, for the purpose of representing their
employer-members in collective bargaining and administer-
ing collective-bargaining agreements on behalf of their
employer-members with labor organizations, including Re-
spondent. Collectively the employer-members of each of the
Associations annually derive gross revenues in the course of
their business operations which exceed $500,000, and pur-
chase goods and materials valued in excess of $10,000
directly in interstate commerce from firms located outside
the States wherein the employer-members are located. I find
that each of the Associations named above and their
respective employer-members are employers engaged in
commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.'
II. THE LABOR ORGANIZATION INVOLVED
Respondent, Actors' Equity Association, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
I. Respondent's rules with respect to membership and
dues payments
At all times material to this case Respondent, by its
articles of agreement, constitution, and bylaws has had
membership classifications for resident members and alien
members. Any person who is a citizen of the United States
or Canada, a resident alien in the United States, or a landed
immigrant in Canada is eligible to become a resident
member. Any person who is admitted to the United States
pursuant to its immigration laws solely for the purpose of
performing in a theatrical production is eligible to become
an alien member. Members in both classes pay the same
initiation fees but have separate dues scales. Resident
League of New York Theatres. Inc.. 129 NLRB 1429 (1969); Ray. Walter
Carl, et al.. Ray. Davidson & Ray. 131 NLRB 433 (1961): American Guild of
Variety Artists. AFL-CIO. et a. 155 NLRB 1020 (1965). I reject Respon-
dent's contention that the Board should decline to exercise jurisdiction in this
case because its practices under attack affect only a few nonresident aliens and
because the alleged unfair labor practices have no significant effect on
commerce. The Board enforces the Act as to all employees, including aliens,
unless regulation of the practice involved is properly left to some other
sovereign authority. See S K Products Corp., 230 NLRB 1211, 1214 (1977). In
exercising its jurisdiction the Board looks to the impact of an employer's
operations on commerce and does not attempt to measure the impact of the
specific unfair labor practices alleged unless they are de minimis See Siemons
Mailing Service. 122 NLRB 81 (1959).
· Alien members who work in this country as members of unit companies
members pay dues according to a sliding scale keyed to gross
income. Their dues range from $42 to $400 per year and
never exceed 3 percent of gross income except for a member
who pays minimum dues and earns less than $1,400 per
year. No resident member is required to pay more than $400
per year regardless of income. Alien members, on the other
hand, are required to pay as dues 5 percent of the
compensation they receive for services performed within
Respondent's jurisdiction. There is no upper limit on the
amount of dues which must be paid by an alien member in
the course of a year.' Alien members do not have voting
rights and are not eligible to serve as officers, councillors
(executive board members), deputies (stewards), or commit-
tee members of Respondent.
2. The provision of Respondent's collective-bargaining
agreements
Respondent has agreements with the League of Resident
Theatres, the League of New York Theatres and Producers,
and the Council of Stock Theatres, known respectively as the
LORT, Production, and COST agreements. These agree-
ments establish rules and govern working conditions in the
segment of the theatre in which each of the associations
operates.' These agreements became effective between April
I and July 1, 1975, and each expired and was renewed
during the pendency of this proceeding. Each contains
provisions requiring membership in Respondent as a condi-
tion of employment and also contains provisions giving
Respondent a voice in the employment of nonresident aliens,
described in more detail below.
3. The applicable provisions of the immigration laws of
the United States
Under the immigration laws of the United States in force
since 1952, a nonimmigrant alien who seeks to enter the
United States for the purpose of acting on the stage must fall
within one of the two following classes as defined by 8 U.S.C
1 101(a):
(H) an alien having a residence in a foreign country
which he has no intention of abandoning (i) who is of
distinguished merit and ability and who is coming
temporarily to the United States to perform services of
an exceptional nature requiring such merit and ability
. . . or (ii) who is coming temporarily to the United
States to perform temporary services or labor, if
unemployed persons capable of performing such service
or labor cannot be found in this country ...
have a still different dues requirement. Unit companies are complete
performing companies which enter the country for limited engagements. have
an identity established over a period of years. and have attained recognized
status based on artistic standards Examples of such companies are the Royal
Shakespeare Theatre and the D'Oyly Carte Company. Members of hese
companies are required to pay as dues 2 percent of their gross earnings during
the period of their employment in the United States. The dues requirements
for members of unit companies are not at issue i this case. and in this
Decision the term alien dues will refer only to the 5 percent dues charged alien
members who are not members of unit companies.
It is not clear from the record whether Respondent has different
agreements with other associations or whether those named in the complaint
as parties to the contract are parties to one of these three agreements.
1194
ACTORS' EQUITY ASSOCIATION
Visas issued under 8 U.S.C. 1101 (a), (H), (i), and (ii) are
known as H-1 and H-2 visas, respectively.'
4. The application of the alien dues requirement to
Lynn Redgrave
Lynn Redgrave, whose husband John Clark filed the
charge in this case, became an alien member of Respondent
in 1966. For a number of years thereafter she worked in this
country under H-I visas and paid alien dues to Respondent
as required by its bylaws. On January 19, 1975, Clark filed a
petition to have Redgrave's visa status changed to that of a
resident alien. At that time the United States Immigration
and Naturalization Service, referred to hereafter as INS,
removed the H-I visa from her passport and assured her
that the grant of resident alien status would be routine and
would follow shortly. However, because of unforeseen
delays, she did not actually receive the "green card" which
signifies resident alien status until January 2, 1976.
During the period between her application for resident
alien status and its grant Redgrave appeared in a traveling
summer stock production. The contract for her services
specifically authorized deduction of dues from wages re-
ceived during the tour of the play.2
During the course of the summer, a schduling mixup
occurred at one of the theatres on the tour, and as a result
the play did not appear as scheduled. A dispute developed
over the obligation of the theatre to Redgrave, and the
matter was taken to arbitration by Respondent on Red-
grave's behalf. On November 21, 1975, the arbitrator
awarded her the sum of $2,500.
On December 5, 1975, Respondent notified Redgrave of
the award and informed her that it would shortly remit the
amount of the award, less alien dues which she owed in a
then undetermined amount attributable to percentage
clauses which applied in the various theatres in which she
played. Redgrave rejected the offer and took the position
that after January 19, 1975, when Clark petitioned to change
her status to resident alien, her dues status should have been
changed to that of resident member. Respondent took the
position that her dues status could not be changed until she
received her "green card." In February 1976 Redgrave and
Clark appeared before Respondent's council to present their
position. By letter of March 2, 1976, Redgrave was informed
that the council had rejected her position.
On April 29, 1976, Redgrave sued Respondent to recover
the full $2,500 of the arbitration award. Respondent counter
claimed for dues in the amount of $912.93. That action
resulted in a decision and judgment on September 14, 1977,
sustaining Respondent's interpretation of its bylaws to
require payment of alien dues by Redgrave until she received
her green card.
For the applicable regulations of the Immigration and Naturalization
Service see 8 CFR Sec. 214.2(h), 2(ii), and (3).
' The individual contracts for Redgrave's services were nominally between
Kellybee Enterprises. Inc., and the summer theatres. Kellybee Enterprises is a
family corporation owned and controlled by Redgrave and Clark. Although
Respondent contested Redgrave's employee status at the hearing because of
the nature of the contractual arrangement, in its brief it has abandoned any
contention that Redgrave was not an employee within the meaning of the Act.
5. The application of the nonresident alien dues
requirement to Yul Brynner
On December 1, 1976, the King of Siam Company entered
into an agreement with Worldwide Talent, Inc., for the
services of Yul Brynner to perform as an actor in a
production of "The King and I." The opening date for the
run of the play was to be April 12, 1977. The standard run-
of-the-play production contract for Brynner's services incor-
porated all the terms of the production contract between
Respondent and the League of New York Theatres and
Producers and authorized the deduction of dues for Respon-
dent from any amounts due Brynner.'
Brynner is a citizen of Switzerland and a resident of
France. He has never been a citizen or resident of Great
Britain. Respondent classifies him as an alien member. In
the fall of 1976, before the opening of the run of "The King
and I," Brynner had protested to Respondent the require-
ment that he pay alien dues, apparently on the grounds that
he had once been a citizen of the United States and had been
previously a resident member of Respondent. Respondent
rejected the protest on the grounds that after Brynner had
renounced his United States citizenship his status had
reverted to that of an alien member and would remain such
until he either again became a citizen or acquired resident
alien status.
Since April 1977 Respondent has received alien dues
payments on behalf of Brynner which continued up to the
time of the hearing. During the first year of the run of "The
King and I," Brynner's dues payments to Respondent were
in excess of $45,000.
6. The employment of other nonresident aliens under
Respondent's contracts
The parties stipulated that in each year from 1974 to 1977
there were nonresident aliens in H-I status who paid alien
dues to Respondent and who worked in Broadway produc-
tions under standard production contracts signed by them as
individuals or by corporations which lent their services. The
parties further stipulated that at least one nonresident alien
signed a standard run-of-play production contract as an
individual during the 6-month period before October 12,
1976, when the charge in this case was served, and that that
person paid alien dues to Respondent during that period.
The average number of nonresident aliens who have paid
dues for the past several years has been between 20 and 30
per year.
Accordingly, it is unnecessary to distinguish between Kellybee and Redgrave
for purposes of this Decision or to set forth any of the facts developed at the
hearing which arguably have bearing upon her status as an employee.
While Respondent at the hearing appeared to question Brynner's status as
an employee within the meaning of the Act, it has not pursued that issue in its
brief I find that the approval privileges granted him in the contract for his
services do not make him managerial or supervisory, and that he is an
employee within the meaning of the Act.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding Findings
I. The contentions of the parties
The General Counsel contends that the imposition of
higher dues on one class of union members based on their
country of citizenship and residence violates Section
8(b)(l)(A) of the Act. The General Counsel contends further
that Respondent's dues system in conjunction with the
contractual requirement of union membership as a condition
of employment subjects a nonresident alien to discharge for
nonpayment of dues other than dues uniformly required
within the meaning of the proviso to Section 8(a)(3) and
therefore violates Section 8(b)(2) of the Act. With respect to
both of these contentions, it is the position of the General
Counsel that by showing the existence of the dual dues
structure and the union-security contracts the General
Counsel has established per se violations of the Act to which
there can be no defense as a matter of law, making irrelevant
Respondent's reasons for the maintenance of a dual dues
structure. In the alternative the General Counsel contends
that by showing the existence of the dual dues structure and
the union-security contracts, the General Counsel has
established presumptive violations of the Act thereby shift-
ing the burden to Respondent to show justification for its
dual dues structure which Respondent failed to do. The
General Counsel contends further that whichever of its
alternative theories is correct the charge in this case was
timely filed with respect to the unfair labor practices alleged
since there were specific acts of enforcement shown as to
Redgrave, Brynner, and at least one other alien member
during the 6-month period before the filing of the charge and
because the provisions of the bylaws and agreements are
unlawful on their faces.
During the hearing the General Counsel amended the
complaint to allege that without regard to the dual dues
structure on which the complaint was originally based the
three contracts between Respondent and the associations
described above independently violate Section 8(b)(2) and
(I)(A) of the Act because they fail to provide 30-day grace
periods for nonmembers of Respondent hired under the
contracts and because they provide for termination from
employment because of loss of membership in Respondent
for reasons other than failure to pay dues.
Respondent contends that the dual dues structure and the
union-security agreements are not invalid per se but are at
most presumptively invalid.' Respondent contends further
that even if the dual dues structure and agreements are
presumptively invalid, the inquiry required to determine
whether a violation has occurred necessarily requires inquiry
into the nature of the justifications for the dual dues
structure which existed at the time the agreements were
executed, all more than 6 months before the charge in this
case was filed, so that the unfair labor practices cannot be
established without resort to evidence outside the 10(b)
period and all allegations based on the dual dues structure
While Respondent has not conceded presumptive invalidity, neither has it
argued that the dual dues structure and agreements are valid per se.
'' Miranda Fuel Company, Inc., 140 NLRB 181, 185 (1962), enforcement
denied. 326 F.2d 172 (2d Cir. 1963).
"I The Electric Auto-Lite Company 92 NLRB 1073, 1077 (1950). Although
the holding of Electric Auto Lite has since been overruled by the Board in
should be dismissed as untimely. Even if that is not the case
Respondent contends further that as to Redgrave, the only
event which occurred within 6 months of the filing of the
charge was the filing of Respondent's counterclaim in the
action brought by Kellybee, and that the claimed violation
as to her is time barred.
Respondent contends further that even if the charge is
timely, examination of the history and reasons of the dual
dues structure shows that it is based upon a reasonable
classification and valid business considerations, so that any
presumption of violation which flows from the face of the
dual dues structure and agreements has been rebutted.
With respect to the alleged unlawfulness of the union-
security agreements apart from the dual dues structure,
Respondent contends that the General Counsel failed to
allege such violations in the original complaint because there
was no evidence of unlawful enforcement of the union-
security provisions, and Respondent had sent letters to the
employer associations expressly stating its intent to provide
for lawful union-security agreements. Respondent contends
that the allegations should be dismissed because the General
Counsel's only purpose in belatedly amending the complaint
was to shore up its position that the complaint was timely
when it appeared during the course of the hearing that
Respondent's 10(b) defense might have a substantial basis.
In any event, Respondent contends that the union-security
provisions are not facially invalid.
2. The alleged per se invalidity of the dual dues
structure
As Respondent concedes that its general contention that
the complaint is time barred depends on whether the dual
dues structure and union-security agreements are invalid per
se or only presumptively invalid, it is necessary to resolve
that issue before considering the Section 10(b) contentions.
Section 8(b)(1)(A) "prohibits labor organizations, when
acting in a statutory representative capacity, from taking
action against any employee upon considerations or classifi-
cations which are irrelevant, invidious, or unfair."' Section
8(b)(2) prohibits labor organizations from causing or at-
tempting to cause employers to discriminate against employ-
ees on the basis of union membership except for an
employee's failure "to tender the periodic dues and initiation
fees uniformly required as a condition of acquiring and
retaining membership." The requirement that dues be
"uniformly required" does not mean that all members must
be charged the same dues, but that distinctions between
classes of members must be based on "reasonable general
classifications."'
While the test for determining whether the classification
of alien members for dues purposes violate Section
8(b)(1)(A) or 8(b)(2) are differently stated, it would appear
that the results under either test must be the same.
In support of its per se contention the General Counsel
argues that the mere existence Respondent's disparate dues
Local No. 171. Association of Western Pulp and Paper Workers (Boise Cascade
Corporation), 165 NLRB 971 (1967), the principle for which it is cited has not
been overruled. Food Machinery and Chemical Corporation. 99 NLRB 1430
(1952): Local 409. International Alliance of Theatrical Stage Employees and
Motion Picture Operators of the United States and Canada. AFL-CIO (RCA
Service Company). 140 NLRB 759, 764, fi. 8 (1963).
1196
ACTORS' EQUITY ASSOCIATION
requirement for nonresident aliens establishes a violation of
the Act, and that no possible explanation or justification can
provide a defense. The cases that the General Counsel relies
on, however, do not go that far. In Graham v. Richardson,
403 U.S. 365, 372 (1971), the Supreme Court stated
"Classifications based on alienage, like those based on
nationality or race, are inherently suspect and subject to
close judicial scrutiny." Implicit is that such classifications
may be justified after close judicial scrutiny, and the object
of scrutiny is to determine whether there is a legitimate
interest to be served by discrimination based on alienage. See
Sugarman v. Dougall, 413 U.S. 634 (1973), 646-647. These
cases and others involving Federal or state discrimination
against aliens" give greater support to Respondent's position
than to the General Counsel's.
While aliens are afforded protection against private acts of
discrimination by the Civil Rights Act of 1966, 2 the single
case cited which deals with the question does not hold that
there may never be justification for discrimination based on
alienage."
To the extent that the Board has dealt with the issue of
discrimination based on alienage its decisions also fail to
support the General Counsel's contention. In International
Longshoremen's Association, Local 1581 AFL-CIO (Man-
chester Terminal Corporation). 196 NLRB 1186 (1972),
enfd. 489 F.2d 635 (5th Cir. 1974), on which the General
Counsel places greatest reliance, the union and employer
had established a set of priorities for job referrals. First
priority went to those born in the United States. Next
priority went to Mexican nationals who resided with their
families in the United States. Last priority went to Mexican
nationals whose families lived in Mexico. In enforcing these
priorities, at the union's request the employer transferred
Guerra, an employee in the third category, to a less desirable
job in the cotton compress and warehouse department after
notifying him that he could retain his job only if he moved
his family to the United States or became a United States
citizen. The contract in Guerra's original department had a
hospitalization plan which covered employees and their
families, but families residing in Mexico were not eligible for
benefits under the plan. The hospitalization plan in the
cotton compress and warehouse department covered em-
ployees only. The parties stipulated that the union requested
Guerra's transfer because the union's membership had voted
that employment in Guerra's original department should be
restricted to those whose families were eligible to receive
benefits under the hospitalization plan.
The Board found that the union had discriminated against
Guerra because he was a noncitizen who refused to bring his
family to this country. It rejected the contentions that the
union's desire to maximize insurance justified the action
against Guerra, noting that there was no evidence that the
union sought the transfer of others, such as single employ-
ees, whose families were ineligible for benefits, and that in
" I.e.. Foley v. Connelie 435 U.S. 291, 294 (1978); Nyquist v. Mauclet 432
U.S. 1. 7 (1977); Mathews v. Diaz. 426 U.S. 67. 80 (1976).
' 42 U.S.C. (1977) 1981.
' Guerra v. Manchester Terminal Corporation. 498 F.2d 641, 654 (5th Cir.
1974).
" Similarly, in Local No. 106. Glass Bottle Blowers Association. AFL-CIO
(Owens-llinois. Inc.). 210 NLRB 943 (1974). enfd. 520 F.2d 693 (6th Cir.
1975), involving discrimination based on sex, the Board did not hold that such
rejecting Guerra's protest over his transfer the union made
no mention of the hospital plan but offered to help him move
his family to the United States. In these circumstances the
Board found that Guerra's citizenship and his family's
residence did not provide the union with legitimate reasons
for causing Guerra's transfer. In its decision the Board
considered and rejected the union's defense; it did not find
that discrimination based on alienage could never be
justified."
I conclude from all the above that the General Counsel
has not sustained his contention that Respondent's mainte-
nance of its dues structure in conjunction with its union-
security agreements is a per se violation of the Act, and that
it is therefore unnecessary to consider Respondent's defenses
which seek to justify the reasonableness of its alien dues
classification.
However, the alternative contention that the dues struc-
ture is presumptively invalid cannot subject to serious
debate. The analogy to broad contractual superseniority for
union stewards is apt,'' and indeed, the case for a presump-
tion against discrimination based on alienage is stronger.
Discrimination based on alienage is inherently suspect, and
rarely will it be possible to show that alienage has relevance
to employment or any legitimate union or business interest.
Thus, it should not be up to those who attack such
discrimination to show the absence of any reasonable ground
for it; rather, the burden must be on those who seek to justify
it to show their reasons for such discrimination and that
those reasons are sufficient to overcome the strong expres-
sions of policy against it.
3. The 10(b) issues
With this foundation, Respondent's general contention
that the allegations of the complaint in this case are
timebarred may be considered. Respondent relies principally
on Local Lodge No. 1424, International Association of
Machinists AFL-CIO v. N.L.R.B., 362 U.S. 411 (1960), and
N.L.R.B. v. Auto Warehousers, Inc., 571 F.2d 860 (5th Cir.
1978).
In the Machinists case the complaint alleged that mainte-
nance and enforcement of a contract which granted exclu-
sive recognition and contained a union-security provision
was unlawful because at the time of its execution the union
did not represent a majority of the employees covered by it.
The charge was filed more than 6 months after execution of
the contract. The Court found that the charge was untimely
"for the entire foundation of the unfair labor practice
charged was the Union's time-barred lack of majority status
when the original collective bargaining agreement was
signed."
discrimination is per se a violation of Section 8(b)(I)(A), contrary to the
General Counsel's contention. Rather, it rejected the justifications advanced
by the union on their merits and found that "There are, thus, no special
circumstances to justify the separate processing of grievances or the
maintenance of separate locals"
Dairylea Cooperative Inc.. 219 NLRB 656, (1975), enfd. sub nom.
NL.R.B. s. Milk Drivers & Dairy Employees. errc.. 531 F.2d 1162 (2d Cir.
1976).
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In so holding the Court distinguished between two kinds
of situations:"
The first is one where occurrences within the six-month
limitations period in and of themselves may constitute,
as a substantive matter, unfair labor practices. There,
earlier events may be utilized to shed light on the true
character of matters occurring within the limitations
period; and for that purpose § 10(b) ordinarily does not
bar such evidentiary use of anterior events. The second
situation is that where conduct occurring within the
limitations period can be charged to be an unfair labor
practice only through reliance on an earlier unfair labor
practice. There the use of the earlier unfair labor
practice is not merely "evidentiary," since it does not
simply lay bare a putative current unfair labor practice.
Rather, it serves to cloak with illegality that which was
otherwise lawful. And where a complaint based upon
that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice.
In Auto Warehousers the court of appeals denied enforce-
ment of a Board order based on a finding that maintenance
and enforcement of a broad superseniority agreement violat-
ed the Act. The parties most recently executed the agree-
ment in 1973. Under its terms, superseniority for stewards
was not automatic but had to be requested by the steward. In
April 1975 steward Hudson requested and was granted
superseniority. He immediately used it in April to bid for
and obtain a job to which he became entitled by virtue of his
superseniority. In August 1975 Hudson rebid for and
retained his job based on his superseniority. The charge was
filed in January 1976. The Board found that each act or
incident of enforcement of the superseniority agreement
constituted a renewed "entering into" the agreement, and
that the implementation of the agreement in August was a
violation of the Act within 6 months of the filing of the
charge.
The court of appeals rejected the Board's holding that the
charge was timely. The court held that while the supersen-
iority clause was presumptively invalid, it was not invalid on
its face, and that determination of its invalidity depended on
whether an adequate business justification existed at the time
of execution of the agreement, more than 6 months before
the charge was filed, so that "maintenance of the contract
provision alone did not constitute an unfair labor practice.""
It held further that Hudson's rebidding in August for the job
he had previously obtained, the only alleged incident of
enforcement during the 10(b) period, was not an act
independent of the initial enforcement of the contract and an
unfair labor practice separate from Hudson's acquiring
superseniority status. In that respect the court observed that
resolution of the allegation that Hudson's retention of his job
violated the Act "would require determining whether
adequate business justification existed at the time Hudson
was accorded super-seniority and, thus, would impermissbly
resurrect time-barred events." '"
'" 362 U.S. at 416.
' 571 F.2d. at 863.
" 571 F.2d. at 865.
Assuming for purposes of this discussion that Respon-
dent's union-security agreements are not facially invalid for
reasons unrelated to alien dues," maintenance of the union-
security provisions alone does not establish the presumptive
violation. Rather, it is only by considering the contracts in
conjunction with Respondent's dues structure, which exists
independent of the contracts, that the presumptive violation
exists. However, once the General Counsel has established
the existence of the agreements and the dues structure his
burden has been fulfilled. If Respondent failed to adduce any
evidence to rebut the presumptive violation entry of the
appropriate order would follow. Unlike the Machinists case,
the collective-bargaining agreement and the dues structure
are not "perfectly lawful, on the face of things." To the
contrary, without more they are unlawful, and an unfair
labor practice can be proved without relying on the facts
surrounding the execution of the contract. After it has been
proved Respondent may come forward with evidence of
earlier events "to shed light on the true character of matters
occurring within the limitations period." 0 Under the Ma-
chinists decision Section 10(b) does not bar the evidentiary
use of such events.
While in Auto Warehousers the court equated facial
invalidity with a per se violation and adopted a contrary
position, the Board did not address this issue, and it has not
acquiesced in the court's interpretation. With due respect to
the court and its decision I find that for purposes of Section
10(b) facial invalidity includes both per se and presumptive
invalidity, for in either case a violation is established without
reliance on events preceding the 10(b) period.
Moreover, the situation in the present case is distinguish-
able from that in Auto Warehousers in two respects. As the
violation rests on Respondent's dues structure in conjunc-
tion with the contracts, the circumstances at the time of
execution of the contracts are not critical. The circumstances
which may or may not justify alien dues are subject to
change without any change in the dues requirements or the
contracts. For example, assuming arguendo that the change
in United States immigration laws in 1952 removed previ-
ously existing justification for alien dues, that change
occurred independent of any change in the contracts or dues
structure.
Further, the circumstances as to enforcement in this case
are different from those in Auto Warehousers. At least one
nonresident alien signed a standard production contract
during the 6-month period before the charge was filed came
under the contractual union-security provisions and was
required to pay alien dues during that period. There is thus
at least one instance of enforcement during the 10(b) period
which was not a mere continuation of what had started
before the 10(b) period.
Respondent contends that the checkoff of dues during
that period was a "benign" act because there is no evidence
that Respondent sought to have any employer impose job
related sanctions on any employee or made any threats
against members to compel payment of dues. Respondent
contends that such "benign" acts are not independent unfair
labor practices, citing Truck Drivers Local No. 696 etc.
' The contentions that they are otherwise facially invalid are considered
below.
!' 362 U.S. at 416.
1198
ACTORS' EQUITY ASSOCIATION
(Freeto Construction Co.. Inc.). 149 NLRB 23 (1964), and
Food, Drug & Beverage Warehouseman & Clerical Employ-
ees, Local No. 595 (Certified Grocers of California. Ltd.). 218
NLRB 1286 (1975). However, in the Freeto case there was
no action of any kind by the union during the 10(b) period.
In the Certified Grocers case the alleged unfair labor practice
was action enforcing an unlawful fine, itself imposed outside
the 10(b) period, comparable to enforcement of an earlier
unlawful action through court action."
I find that the Board is not barred by Section 10(b) from
considering the lawfulness of the maintenance and enforce-
ment of Respondent's union-security agreements and dues
structure since April 8, 1976, 6 months before the filing of
the charge in this case.22
However, with respect to Lynn Redgrave the evidence
shows that the only action taken by Respondent to enforce
the alien dues provision as to her after April 8, 1976, was the
filing of its counterclaim for the dues it had previously
determined that Redgrave owed. The levy of the dues,
Redgrave's internal appeal from the levy, and rejection of
that appeal all occurred more than 6 months before the
charge was filed. The allegations of enforcement as to
Redgrave therefore are not timely.'
4. The alleged invalidity of the union-security provisions
The General Counsel contends that the union-security
provisions of the COST, Production, and LORT agreements
violate the Act without regard to the alien dues reuirement
because they fail to provide a 30-day grace period as
required by Section 8(a)(3), provide for termination for
reasons other than failure to pay periodic dues, and in one
instance provide that only union members may be employed.
The COST agreement provides, insofar as material:
27. EVIDENCE OF MEMBERSHIP)
(a) Actors will be tentatively engaged on their paid-up
cards only, which cards will be prima facie evidence of
membership in Equity until the Producer is otherwise
notified.
· * *
57. SUSPENSION FOR CAUSE)
Whenever Equity notifies the Producer in writing
that the Actor has been suspended by Equity or has
otherwise ceased to be a member thereof in good
standing, the Actor's Contract of Employment shall
terminate forthwith provided in said notice Equity
expressly requests or consents to such termination. Said
contract shall terminate as shall be provided or required
in said notice from Equity.
The Production Contract provides:
70. SUSPENSION FOR CAUSE)
Whenever Equity notifies the Producer in writing that
the Actor has been suspended by Equity or has
" Local 259. United Automobile Workers (Stamford Motors. Inc.). 221
NLRB 656 (1975); International Association of Machinists and Aerospace
Workers. AFL-CIO et at (Union Carbide Corporation). 180 NLRB 875 (1970),
reaffirtned 186 NLRB 890, set aside sub nom. Luther W. Shumate et al. v.
N.LR.B.. 452 F.2d 717 (4th Cir.).
" This includes the enforcement of Respondent's alien dues requirement
otherwise ceased to be a member thereof in good
standing, the Actor's Contract of Employment shall
terminate forthwith, provided in said notice Equity
expressly requests or consents to such termination. Said
contract shall terminate as shall be provided or required
in said notice from Equity.
The LORT agreement provides:
62. UNION SECURITY)
All Actors, except non-professionals as provided in
Rule 34, as a condition of employment, shall be or
become members of Actors' Equity Association, and
shall continue to be members in good standing during
the term of their employment.
The Manager shall receive two (2) weeks' written notice
to discharge any Actor for non-payment of union dues
or initiation fee. Upon the Actor's failure to make such
payment(s) within the aforesaid period, the Theatre
agrees immediately to discharge the Actor provided,
however, that Equity agrees to withhold its demand for
discharge if the Theatre undertakes, with the consent of
the Actor, to withhold from the Actor's salary a sum or
sums sufficient to correct the Actor's dues or initiation
fee deliquency.
There is no evidence that these provisions have been
unlawfully enforced to require membership of new employ-
ees without a grace period or to deprive anyone of
employment for reasons other than nonpayment of dues.
On December 16, 1977, some 14 months after the charge
in this case was filed, the Regional Director sent the
following letter to Respondent's counsel:
The Actors Equity collective-bargaining agreements
submitted by you during the course of the investigation
in the above-captioned matter have been reviewed.
These agreements include the Agreement and Rules
Governing Employment under the Production Con-
tract, as well as in Dinner Theatres, Resident Theatre,
Theatre for Young Audiences, Stock Resident Dramat-
ic, Non-resident Dramatic, and Off-Broadway.
Our examination of these agreements reveals that
none appear to be in accordance with Section 8(a)(3) of
the National Labor Relations Act because they provide
that employees may be suspended or terminated for
non-membership in Actors Equity Association prior to
the 30th day following the beginning of employment.
Moreover, several of these agreements contain "Evi-
dence of Membership" clauses which indicate that only
paid-up members of Equity may be employed by
employers governed by those agreements.
Accordingly it is necessary for these provisions to be
changed and to be brought in conformity with the
National Labor Relations Act. It will be necessary for
you to advise us by December 22, 1977 as to what, if
with respect to Yul Brynner which began with the run of "The King and I.'
after the charge in this case was filed. since it is related to the unfair labor
practices alleged in the charge. N.L.R.B. v. Fant Milling Company. 360 U.S.
301 (1959).
" See cases cited in fn. 21, above.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any, changes have been made. Absent necessary
changes a Complaint on this matter will issue.
On January 19, 1978, after apparently having been
assured that Respondent would take appropriate action, the
complaint issued containing no allegations based on the
provisions quoted above. On January 31, 1978, Respondent
sent letters to the various associations mentioned in the
Regional Director's letter of which the following, sent to the
League of New York Theatres, is representative:
Please be advised that the Production Contract between
your organization and the undersigned Union does not,
and is not intended to require that employment shall be
based upon membership in Actors' Equity Association
and, anything to the contrary contained in said Con-
tract not-withstanding, membership in Actors' Equity
Association is not and shall not be required as a
condition of employment until on or after the 30th day
following the beginning of employment or the date of
the Contract, which-ever is later.
Should the National Labor Relations Act be amended
so as to permit the requirement of membership in the
Union on a date earlier than the 30th day of employ-
ment, the Production Contract shall be deemed amend-
ed so as to require membership at such earlier date.
Please communicate the above to your membership.
This issue was not raised again until after the conclusion
of the General Counsel's case-in-chief. Then, in its brief
dated July 14, 1978, filed in opposition to Respondent's
motion to dismiss for failure to allege an unfair labor
practice within the 10(b) period, the General Counsel first
called attention to the alleged unlawfulness of the union-
security provisions and indicated the intention to amend the
complaint when the hearing reopened. At the reopened
hearing the motion was made. Counsel for the General
Counsel candidly stated that this issue had not been alleged
in the complaint originally because of Respondent's promise
to send letters modifying or clarifying the agreements,
making the issue moot as a practical matter, but that after
Respondent raised its 10(b) arguments at the hearing the
General Counsel sought to amend the complaint to strength-
en its position with respect to the 10(b) arguments. The
General Counsel does not seek any remedy other than a
cease-and-desist order for this alleged violation.
Although I granted the General Counsel's motion to
amend the complaint at the hearing over Respondent's
vigorous opposition because of the Board's generally liberal
policy with respect to amendment of complaints, I am
persuaded that these allegations should not be reached on
the merits. The General Counsel has conceded that these
amendments are tactical amendments made only for the
purpose of fortifying the basic allegations contained in the
original complaint.
There is no allegation that Respondent failed in any way
to carry out what it undertook to do in January to bring its
union-security agreements in conformity with the Act, nor is
there any allegation that Respondent has improperly applied
those agreements. There is nothing to indicate that the
Regional Director's January judgment that the issue was
moot in any way has been altered by later events. While the
tactical decision to amend was evidently based on Respon-
dent's arguments that the original complaint was time
barred, the General Counsel was on notice that such
arguments would be made at least from the time Respondent
filed its answer on March 3, 1978, in which one of its
affirmative defenses was that the complaint was time barred.
In addition, the General Counsel has not shown how the
alleged per se invalidity of the union-security provisions
would alter the outcome as to the allegations of the
complaint based on the alien dues. There are two distinct
unfair labor practices alleged. The fact that the charge may
have been filed timely with respect to one of them does not
mean that it was with respect to the other. Although I agree
with the General Counsel's contention that its allegations
based on alien dues are in the main not time barred, in
reaching that conclusion I have not relied on the alleged
invalidity of the union-security agreements and fail to see
how that alleged invalidity helps the General Counsel's case
with respect to alien dues.
In these circumstances I am persuaded that the merits of
the allegations in the amendment to the complaint ought not
to be reached because the Regional Director's prior determi-
nation of mootness has not been abandoned for any
substantive reason. because there is no more apparent reason
for a remedial order now than when the original complaint
issued, and because there is not any other apparent purpose
to be served by deciding the merits of this issue. I shall
therefore recommend that the allegations in the amendment
to the complaint be dismissed.
5. Respondent's defenses to the presumptive invalidity
of its alien dues requirement
As set forth above, the lawfulness of Respondent's dues
structure enforced by union-security agreements turns on
whether the imposition of 5-percent dues on nonresident
aliens is to be viewed as arbitrary or based on a reasonable
classification.
Respondent makes several arguments in support of its
position that the alien dues result from a reasonable
classification and valid business considerations. It contends
initially that the alien dues serve the legitimate purpose of
protecting American actors from competition from foreign
actors.
There is evidence that an original purpose of the 5-percent
alien dues was to protect American actors from what they
believed to be unfair labor competition from British actors
who came to this country and worked for substandard
wages. The origins go back to the late 1920's when
American immigration laws permitted British actors to enter
this country freely, to remain for indefinite periods of time as
nonresident aliens, and to compete for jobs with American
citizens and resident aliens who had indicated an intention
to become citizens. There was substantial unemployment at
the time among American actors who felt that they were
receiving inadequate protection against competition from
British actors. As a result, in 1928 Respondent amended its
bylaws to create an alien membership classification limiting
the membership rights of alien actors and to restrict resident
membership to those who were residents and citizens of the
1200()
ACTORS' EQUITY ASSOCIATION
United States and Canada and a limited group of resident
aliens." At that time resident members and alien members
paid the same dues and initiation fees. Because of Respon-
dent's closed-shop policy the membership restrictions had
some impact on alien employment.
By late 1930 Respondent's membership was concerned
with rising unemployment due to the growing economic
depression and reconsidered the restrictions on alien em-
ployment. Recognizing that certain stars or featured players
might help to carry a play and increase employment
opportunities for American actors, in January 1931 Respon-
dent relaxed one of its former restrictions which barred an
alien member for rejoining Respondent for a 6-month period
following completion of the run of a previous engagement.
At the same time, because of continuing concern that alien
actors whose work was not essential to the success of a play
were continuing to deprive American actors of employment
by taking parts for which American actors were available,
Respondent adopted a requirement that alien members pay
as dues 5 percent of their weekly salaries and not less than
$10 per week. The avowed purpose of this requirement was
to discourage alien actors from playing minor roles, fre-
quently at compensation below what American actors
thought was fair, by making it uneconomical for them to do
so. In speaking to the changes at the general meeting of
Respondent's members where the changes were adopted, its
president argued against proposals to bar all aliens from
membership, pointing out that certain plays required alien
actors for their success and added:
And you must bear in mind that many of our own plays
and a good many of our own actors visit England and
the Continent. We don't want to check this reciprocity.
It would hurt us all too much.
In hard times like the present we either have to raise
your dues, reduce the service rendered you by your
Association or find some other source of revenue.
Under this plan, which is presented to you this
afternoon, those alien actors who are necessary for
certain productions will be allowed to come over and to
contribute very materially to the revenue of your
Association.
In April 1931 Respondent reported that the new policy
was effective, as demonstrated by the collection of $6,500 in
alien dues in one 10-week or 1 -week period accompanied by
a 50-percent decline in the number of alien actors on
Broadway. "Equity" commented:
The new policy with regard to alien actors is doing two
definite things. It is keeping more Equity members at
work, for the alien actors who are playing are the
important actors whose continuance at work makes
work for others.
And in doing so they are paying a proportionately
greater share of the expenses of the administration of
the Association.
" The findings as to the history of the development of Respondent's policies
and practices with respect to aliens are based on the excerpts from
Respondent's house organs "Equity" and "Equity News" and from its council
minutes While the General Counsel is correct that "Equity" and "Equity
News" are less reliable than the minutes. there is no reason to believe that
While this evidence shows that alien dues originally had a
dual purpose which continued for some years, in the almost
50 years which have passed since the alien dues policy was
adopted there have been substantial changes in the circum-
stances which underlay its original purposes.
Thus, in 1952 two major changes occurred. First, the
United States Congress enacted the McCarran Act:' on June
27, 1952, which ended the free immigration of alien actors
and imposed the restrictions in 8 U.S.C. 1101(a)(15)(H)
quoted above. Concurrently, in July 1952, in response to
membership pressure, Respondent's council adopted a set of
rules "calculated to restrict more stringently than ever
before, importation and employment of alien actors in this
actors in this country." In summary, they were:
1. No alien would be eligible to work in Respondent's
jurisdiction without proof that he was permitted to
accept employment in this country.
2. Except for unit companies, no company would be
composed of less than 60% resident members.
3. With certain exceptions, an alien who had legally
immigrated, taken out "first papers," been domiciled
in this country for 3 years with the intention of
becoming a citizen would not have to wait 6 months
between engagements but would have to pay 5%
alien dues.
4. A non-resident alien could not be engaged from
abroad to perform any part at a salary of less than
$500 a week.
Implementation of the proposals was postponed when
British Actors' Equity Association, Respondent's British
counterpart, requested negotiations in regard to the matter,
and American actors working in Great Britain expressed
fear of retalition. Although some agreements were reached,
negotiations broke down over a British Equity proposal to
exclude performers whose salaries were below certain levels
after Respondent had changed its position with respect to
the last of the four proposals summarized above. On May
28, 1953, the proposals became effective except for the $500
minimum salary requirement.
In 1956 Respondent revoked the 40-percent quota rule
and adopted a policy to bar all aliens from American
productions except those permitted by Equity. Its stated
policy was to permit employment of artists of proven first
class reputation, "stars" previously starred in first class
productions and who were required to take leading parts in
particular productions. It would also approve requests for
supporting players on a showing that employment of an
imported player was reasonable and necessary in the
circumstances.
Shortly after this policy was adopted, in 1957 Respondent
clashed with a producer over application of its policy and
the clash was ultimately resolved on the basis of an INS
determination and an arbitration award which favored the
producer.
reporting in the house organ before this case arose was influenced in any way
by anticipation of the pending attack on Respondent's dues structure. To the
extent that reports may be self-serving, they do not appear to have anticipated
or affect the outcome of this case.
8 USC Sec. 111O, et seq.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, in 1957 Respondent entered into an agreement
with the League of New York Theatres and Producers,
limiting the use of foreign actors to 30 percent of a company.
In 1963 Respondent passed a resolution which deplored
an alarming increase in importation of British performers,
which reduced job opportunities for American performers,
and charged INS with failing to fulfill its obligation to
protect American performers. The resolution called for a
meeting with the Attorney General to demand that INS not
grant work permits without Respondent's consent.
Prior to 1964 the United States Department of Labor was
required to issue clearances for aliens seeking to enter the
United States to work in most occupations but not in acting.
In March 1964 the department informed Respondent that it
had entered into an agreement with INS extending the
department clearance procedures to actors seeking to enter
the United States on H-2 visas. The department indicated
that it would seek Respondent's advice with respect to such
applications. Notwithstanding this change, in 1966 Equity
reported that the fight over aliens still was going on, and that
legislative efforts were being made to strengthen the role of
the department in regulating the flow of alien performers.
In March 1966 Equity reported proposed amendment of
its bylaws to give full membership rights to alien actors who
legally emigrated to this country under a quota, were legal
residents, and presumably intended to become citizens and
to make their dues the same as those of citizens. A stated
reason for the proposal was a legal opinion that the
restrictions on employment of such aliens and the require-
ment of increased dues would violate the recently passed
civil rights laws and might subject Respondent to financial
penalties. Equity pointed out that the change would have
little effect on employment, since most resident aliens were
already permitted employment without restriction and that
the effect on Respondent would be mostly financial. The
amendment was adopted and thereafter only nonresident
aliens admitted under H-l and H-2 visas were considered
alien members and required to pay alien dues. Equity
summarized the arguments as follows: Those in favor felt
Respondent should not try to collect 5-percent dues forever,
and that the "hit and run" actor is not deterred by assessing
all aliens regardless of domicile. Those against felt that
because Respondent's financial condition was delicate, the
change would put Respondent in the red and perhaps cause
a general dues increase. They also felt that alien actors
should not be encouraged when less than 30 percent of
Respondent's members were employed at any time.
In 1967 Equity reported that employment of alien actors
had become a New York issue because producers outside
New York had little desire to employ aliens and because all
Respondent's contracts other than the production contract
required Respondent's approval before a foreign actor could
be employed.2
In 1968 Respondent reached an agreement with the
League of New York Theatres, restricting further the rights
of producers to employ alien actors under the production
contract, which continues to date. It provides that a
' The LORT agreement now provides, "Non-resident aliens may not be
employed without the express consent of Equity." The COST agreement
provides. "Non-resident aliens may not be employed in COST productions
without the express consent of the Council of Actors' Equity Association.
Council's determination shall be final and binding." The record does not show
when these provisions were first agreed to, but apparently they predate 1967.
producer will not apply to INS for admission of an alien
actor unless admission is approved by both the League of
New York Theatres and Respondent. In the event of
disagreement the matter may be submitted to an impartial
arbitrator who shall use as his criteria the provisions of 8
U.S.C. I 101(a)(5),(H),(i), and (ii).
In March 1969 Equity reported on the employment of
British actors during the previous 2 calendar years, noting
improvement from the point of view of American actors
since 1963-1964, when nonresident alien employment was at
a high. In April 1968 Equity reported further:
ALIENS
The indiscriminate importation of alien performers
from other lands into the United States job market has
been a hindrance to both United States and Canadian
performers. In recent years, Equity's efforts to impress
the federal government with this situation have resulted
in the assumption of greater responsibility in this area
by the Labor Department, a warning by Congress to the
Immigration Service and the passage by Congress of
amendments to the immigration laws that make it more
difficult for performers from the British Isles to enter
the United States as immigrants. The production
contract agreed to last year did much to lessen the
incidence of cases that had to be pursued in Washington
with the agencies. It also removed much of the
controversy to an arena where the parties most con-
cerned could work out the problem unhindered by
disinterested and, too often, uninformed government
immigration offices.
Again in March 1970, Equity reported that the new
agreement with the League of New York Theatres had
reduced drastically the number of alien actors engaged on
Broadway and the road.
In January 1971, Respondent's assistant executive secre-
tary reported in Respondent's newsletter on the engagement
of alien actors during the previous 6 months, noting that in
administering its agreements with the League of New York
Theatres, "With the exception of actors who can properly be
defined as persons of distinguished merit and ability (usually
stars, or actors who are established as such in their own
countries), it is Equity's policy to reject such requests."
In February 1971, Equity summarized the report, com-
pared employment of aliens during that period to earlier
periods, and concluded that "this illustrates that the hard
won agreement from the League of New York Theatres in
1968 has proved to be successful." Nothing to the contrary
has since been reported.
The change in the United States' immigration laws, the
changes in their administration, and Respondent's winning
of contractual rights which give it a direct voice in
determining whether alien actors are to be engaged 7 have
virtually eliminated the need for a special dues structure to
deter nonresident aliens from seeking employment on the
American stage and have left viable only the revenue raising
" These provisions are not under attack in this proceeding and are
distinguishable from the alien dues since they affect employment of nonresi-
dent aliens before they have been hired or application has been made for H-I
or H-2 visas for them.
1202
ACTORS' EQUITY ASSOCIATION
purpose. Indeed, as the history shows, alien dues were not
effective in deterring employment of alien actors, and for
many years after Respondent adopted alien dues the com-
plaints and efforts to reduce competition from alien actors
continued. The contractual solution finally reached emptied
the alien dues of any lingering function that they may have
served in discouraging competition by alien actors. Assum-
ing that such an original purpose might have made reason-
able the separate classification of nonresident aliens for
purposes of dues payments, the changed circumstances
eliminate that purpose as a possible justification for the
classification.
Respondent's remaining contentions relate to its relation-
ship with its counterpart British Actors' Equity Association.
It contends that Respondent's power to maintain dues
differentials serves a legitimate union purpose of deterring
British Equity Association from taking hostile and restric-
tive action against American actors seeking work on the
British stage and also serves as a counterweight to compen-
sate for the relatively greater power that British Equity has
regarding the temporary admission of alien actors to its
country. Respondent contends that if it were deprived of its
power to charge higher dues to nonresident aliens than to
other members, there could be a complete breakdown in the
presently friendly relations between the two unions, and
Respondent would be deprived of its only bargaining point
in a conflict between American and British theatre.
British Equity was not in existence when Respondent first
adopted its restrictive policies toward alien membership and
dues. At that time Respondent's members were concerned
not only about competition from British actors on the
American stage but also over restrictions in Great Britain by
the Ministry of Labor over the employment of American
actors on the British stage. Generally, only those American
actors who were deemed to be of outstanding merit and
distinction and who satisfied the ministry that their parts
could not be satisfactorily taken by British actors were
allowed to perform.
In 1930 and 1931 British Actors' Equity Association was
formed with jurisdiction over entertainment generally, in-
cluding stage, films, ballet, opera, variety and cabaret, and
later television.2'
In its first annual report for the year 1931 British Equity
reported the establishment of friendly relations with Respon-
dent and an agreement for a reciprocal scheme for the
admission of actors to either country, providing that in each
country alien actors would pay an entrance fee and a
subscription of 5 percent of salary each week, with a
requirement of 6 months of inactivity between engagements.
Although British Equity described this as an agreement, it
did not mention the contemporaneous American relaxation
of the 6 months inactivity requirement, and it appears that
British Equity did not impose the 5-percent dues require-
ment until a number of years later.
In late 1931 the British Ministry of Labor denied permits
to several American actors whose admission had been
anticipated, prompting a protest by British Equity against
tightening up of the administration of its regulations at that
time. The ministry announced that it would thereafter give
"full consultation" to British Equity.
Shortly thereafter, in early 1932, a bill was introduced in
the United States Congress which would have ended the free
admission to this country of alien actors and restricted
admission to those of distinguished merit and ability whose
engagements in this countrary required superior talent.
Respondent supported enactment of the bill with an amend-
ment permitting unit companies, such as the D'Oyly Carte
Opera Company, to come to this country and perform as a
unit.
British Equity registered alarm at the proposed legislation
and urged the British government to adopt and announce a
policy of free admissions of all foreign actors subject to
consultation with British Equity. It expressed the belief that
the proposed American legislation was a reprisal based on
untrue press reports of British policy. Ultimately the
proposed American legislation was not enacted.
In 1935 Respondent lent its support to British Equity's
efforts to obtain union-shop agreements with London
theatres by instructing Respondent's members not to accept
engagements at any English theatre with which British
Equity had a dispute over union shop.
In 1936 British Equity asked Respondent to notify its
members of a new scale of dues for alien actors working in
Great Britain. In its announcement British Equity stated:
[T]he Committee were anxious to avoid any suggestion
that they were actuated by any desire to effect a policy
of reprisals. On the contrary, they hope that in the near
future ways and means may be found for a free
international exchange of artists.
There is no evidence of change in alien policies of
Respondent or British Equity for a number of years
thereafter. As late as August 1947 the minutes of
Respondent's council show a report by Respondent's
president of a visit by him to the council and officers of
British Actors' Equity as follows:
During this visit, the question of the free interchange of
artists arose and after pointing out Equity's present
position in the matter, he agreed to submit the question
for consideration ....
With respect to the present 5% measure of Equity's
alien policy he was informed that British Equity had
adopted a retaliatory measure but had not put it into
effect, because they felt it to be unfair and that ethically
such a tax on art did not belong to either country, and
that the question of interchange of artists should not be
made a subject of tax, but that each Equity would
recognize the card of the other Equity. President
Derwent had told them that it would be "the ideal
solution" but that many difficulties stood in the way but
that in any event he would present the matter to the
Equity Council.
The Executive Secretaries of the Actors' Equity
Association and the Chorus Equity Association gave
their views on the matter which was to the effect that
there should be no relaxing of the policies of the present
' In the United States this jurisdiction is divided among several unions.
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equity alien actor policy which was for the protection
of the American actor and in conformance with the
purposes for which Equity was originally organized.
Respondent's council minutes for September 6, 1949,
contained the following report:
8. Mr. Simon stated that the ALIEN POLICY had
been set as a Special Order of Business for discussion at
3:30 and read letters and data concerning this matter.
He first read a compilation of figures showing that
receipts from aliens during the past ten years had
averaged approximately 10% of our total income.
There followed the reading of a letter dated August 2,
1949, from GORDON SANDISON, General Secretary
of the British Actors' Equity Association, stating that
they had raised the initiation fee for our members to 25
pounds, thereby making it equal to our initiation fee for
aliens, and that although they would still like to work
for a free exchange of actors, as of October 1, they
would introduce complete reciprocity and ask Ameri-
can artists working in Britain to pay 5% of their
salaries. Mr. Simon then read a second letter from Mr.
Sandison, dated August 10, in which he sets forth the
purpose of the Ministry of Labor (Foreign Labor
Division) as a government department to which em-
ployers who wish to engage foreign labor must apply for
permission. Although the final decision rests with this
department, they generally approve the recommenda-
tions of the trade union making the request. Further,
individual applications for employment in a show are
considered upon their own merits; they have no rule
prohibiting American artists who have taken part in
one production from moving into another for a period
of six months. Mr. Simon also read a letter from ALAN
HEWITT dated September 3, 1949, in which he asks
Council to maintain the present rules in the alien policy.
However, British Equity further postponed imposition of
alien actors' dues to January 1, 1950, to give those who
might be affected by it time to make the necessary
arrangements.
In February 1950 Equity reported:
ALIEN RULES STILL STAND
The British Actors' Equity Association, in a letter
which was considered by the Council suggested that
Equity abolish its twenty year old alien actors' policy
and agree to a reciprocal exchange of membership.
The Council decline to alter its present policy. This
policy does permit the competition of alien actors with
American actors. It provides a very considerable
addition to Equity's treasury, which would have to be
found elsewhere if the policy were changed. For these
reasons the Council did not feel that it could make such
a change.
Incidentally, British Equity's letter reminded us that
the current initiation fee for alien actors in Great
Britain is twenty-five pounds, roughly corresponding to
the 100 of our own initiation fee.
In July 1952 Respondent published in Equity a letter from
the British Ministry of Labor setting forth its policy with
respect to admission of aliens to perform on the British
stage.
The letter states that it is a policy to issue permits freely to
artists of first class reputation and who were required to take
leading parts in particular productions. Permits were also
issued for artists of lesser standing as supporting players
upon a showing that employment of a foreign artist was
reasonable and necessary in the circumstances. It was
normal policy to consult British Equity in all cases and to
grant permits where British Equity raised no objection, but
in the case of disagreement the final decision rested with the
ministry. Permits were granted for limited periods in the
first instance but normally extended for the run of the
production, and foreign actors were not required to wait 6
months between engagements if a case could otherwise be
made for a new permit.
During the same period British Equity began to complain
that the British Ministry of Labor was not taking a strict
enough stand with regard to employment of foreign artists
and was ignoring its wishes. British Equity supplied Respon-
dent with a statement of its position, in which it asserted that
it welcomed foreign artists to Britain and encouraged the
exchange of artists and productions between countries, but
at the same time wished to protect its members against
applications which might harm the profession, cause unem-
ployment, or undercut salaries. British Equity sought to
explain that it had opposed very few applications of
American actors, but that rank-and-file members regarded
its council's policies as excessively liberal, and that if their
view prevailed British Equity policy would become more
restrictive. It attributed the perceptions of American actors
that British Equity prevented them from working in Britain
to three factors: (I) unfounded press reports; (2) the
requirements of application and permit which discourage
managers from making application; and (3) the practice of
managers blaming British Equity for their failure to hire
American actors for other reasons.
Its statement concluded:
British Equity believes that art is international. In
spite of our own grave unemployment problem; in spite
of considerable pressure from members who, not
unnaturally, see this problem from the point of view of
their own unemployment, our Council has succeeded in
maintaining a policy which, in our view, is astonishing-
ly unrestrictive. The Council will endeavour to main-
tain that policy in spite of the financial pressures,
particularly noticeable in films. This is not simple
idealism. It could more properly be described as
enlightened self-interest, for we desire to maintain two
important things on behalf of our members. First, a
reasonable degree of freedom for them to travel and to
perform in other countries. Second, the reputation of
our country and of London as places where in the
course of a year there can be seen much of the best that
the world has to offer in the way of entertainment. In
the long run we think that this contributes to, rather
than takes away from, the employment possibilities of
our British and resident alien members.
It will be recalled that at the time this statement was
published the United States immigration laws had just been
changed, bringing them much closer to British practice, and
1204
ACTORS' EQUITY ASSOCIATION
Respondent had adopted further restrictions on alien em-
ployment.
There is little evidence in the record of the relations
between the two organizations over the next 10 years, but in
late 1963 Respondent and British Equity issued a joint
statement after discussion of "the difficulties arising from
the present disproportion between the number of British
actors and productions appearing on Broadway, and the
number of American performers and productions appearing
in the West End [London] theatre."
The statement endorsed reasonable and fair exchange as
in the interest of the public and their members but
condemned importation of actors or productions based on
cheapness rather than artistic merit and pledged cooperation
to prevent such interchange. Toward that end British Equity
announced an increase in its minimum salary for its
members working in New York toward the end of making
their compensation commensurate with that of American
actors.
There is limited evidence of the relationship between the
two organizations since 1963, but such evidence as there is
shows it to be harmonious.
British Equity currently charges nonresident American
stage actors 5 percent of salary as dues. It charges other
foreign nationals and Americans other than stage actors
generally 2 percent of salary as dues. American unions
having jurisdiction over films, ballet, opera, variety, and
television charge nonresident alien members the same dues
as other members.
Paragraph 4(3) of the rules of British Actors' Equity
provides as follows as to membership eligibility:
(3) All foreign Artists working in the United King-
dom under a permit issued by the Ministry of Labour
upon such terms and conditions as to duration of
membership, fees and privileges as the Executive
Committee may decide, provided that the Executive
Committee shall, so far as practicable, follow the
principle of reciprocity in imposing fees and conditions
upon foreign Artists, so that they shall be treated, while
in this country, on the same or similar terms to those
applicable to British Artists in the countries from which
the foreign Artists come, and Provided that the Council
shall endeavor to secure reciprocal arrangements be-
tween British Equity and the appropriate organizations
in other countries to reduce and limit the fees charged
to Artists from their respective countries in order to
encourage a free exchange of Artists.
Currently the British Department of Employment passes
on applications of aliens for temporary admission to Great
Britain for purpose of working in the theatre. Before passing
on such applications the department seeks the advice of
British Equity. British Equity normally does not object to
issuance of permits to artists of international reputation or
unit companies with an established existence in their native
countries, but it does oppose some applications, for example,
when it believes that a manager has not shown that an
adequate search was made for an English actor to play the
" He testified further that if the change was made at the initiative of
Respondent he would expect that it would be preceded by discussion between
the two organizations.
part in question. Most of the time the Department of Labor
acts in accord with the position taken by British Equity.
British Equity General Secretary Peter Plouviez testified
that in his opinion if Respondent were required to reduce the
dues it charges nonresident aliens British Equity would not
necessarily consider that it had any moral obligation to
maintain reciprocity."
Plouviez also testified that paragraph 4(3) of the rules of
British Actors' Equity set forth above expresses a long term
policy aim, and that he did not recall British Equity formally
deciding to seek reciprocal arrangements except in the case
of Irish Equity, the Association of Canadian Television and
Radio Artists, and continuing talks with Respondent.
Respondent's contention that Respondent's power to
maintain dues differentials serves a legitimate union purpose
of deterring British Equity for taking hostile and restrictive
action against American actors is not supported by the
record. The evidence shows that over the years the initiative
for 5-percent dues has been entirely Respondent's. British
Equity long deferred implementing a 5-percent alien dues,
applied it to American actors but not to other Americans
coming under Respondent's jurisdiction, and has an ex-
pressed policy favoring reciprocity in imposing fees. There is
nothing in the record to indicate that maintenance of
Respondent's alien dues structure has restrained British
Equity from taking any action with respect to American
actors other than reducing their dues to treat them as it
treats other American members. Despite Plouviez' testimo-
ny that the policy of reciprocity expressed in British Equity's
bylaws is only a statement of how the world should be, and
that British Equity would not necessarily reduce its alien
dues if Respondent were compelled to reduce its alien dues,
the most that is threatened is that British Equity will
maintain 5-percent dues if Respondent is compelled to
eliminate nonresident alien dues.
Respondent's contention that alien dues serves as a
counterweight to compensate for British Equity's relatively
greater power regarding temporary admission of aliens is
also not supported by the record. The evidence shows that
whatever greater power British Equity may have than
Respondent vis-a-vis their respective immigration authori-
ties, Respondent has found an effective counterweight in its
contracts which give it at least equivalent power over the
employment of nonresident aliens. Indeed, if the 5-percent
dues were such a counterweight, Respondent would not
have experienced the continuing problems for more than 35
years which led to negotiation of the LORT, COST, and
production agreements giving it power to restrict alien
employment.
Finally, the record does not support the contention that
depriving Respondent of its power to charge aliens higher
dues could cause a breakdown in friendly relations between
the two unions or would deprive Respondent of its only
bargaining point in any conflict between British and Ameri-
can theatres. Respondent's power to enter into agreements
restricting employment of nonresident aliens constitutes a
much more potent bargaining point in the event of conflict
than the 5-percent dues could ever have been, and the record
shows that Respondent's competitive objectives on the
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American or British stage. From Respondent's own commu-
nications to its members over the years relating to the
relations between the two unions it appears that the 5-
percent dues have been a source of disharmony and not an
instrument of friendship. If elimination of the alien dues
structure in order to end discrimination based on alienage
causes the entire structure of friendship between the two
unions to collapse, the structure must be indeed unstable.
I conclude that the 5-percent alien dues adopted many
years ago proved inadequate for the purpose of restricting
alien employment and outlived that purpose as changes in
laws and contracts have occurred. I conclude that Respon-
dent has failed to establish any present or recent purpose for
maintenance of its 5-percent alien dues other than its
effectiveness in producing revenues. In these circumstances I
find that Respondent has failed to establish a valid justifica-
tion for its treatment of nonresident aliens.
Accordingly, I find that by maintaining and enforcing its
requirement that nonresident aliens pay dues of 5 percent of
gross earnings while requiring significantly less dues from
other members pursuant to union-security agreements Re-
spondent has attempted to cause employers to discriminate
against employees for reasons other than failure to pay dues
uniformly required within the meaning of Section 8(a)(3) of
the Act and has also failed to represent nonresident alien
members fairly. Accordingly, I find that Respondent has
violated Section 8(b)(2) and 8(b)(1)(A) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(X2) and 8(bI)(A)
of the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The General Counsel asks that all affected employees be
reimbursed for the difference between what they paid in
union dues pursuant to the 5-percent charge and what they
would have paid if treated as resident members. Respondent
contends that such a remedy would be contrary to the
decision of the United States Supreme Court in Local 60,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, et al (Mechanical Handling Systems) v. N.L.R.B.,
365 U.S. 651 (1961). There the Court rejected an Order
requiring reimbursement of all union dues collected pursu-
ant to an unlawful union-security agreement where the
evidence showed that many employees had been members of
the union for years and there was no evidence to show that
any member was coerced to join the union or had not acted
voluntarily.
Here, the General Counsel does not seek reimbursement
of all union dues but only that portion which was based on
Respondent's unreasonable classification. There is no issue
here of coerced membership. The issue is unjustifiable
discrimination in the terms which was involved in the Local
60 case. The benefits alien members received from member-
ship in Respondent were benefits they were entitled to
I United Association of Journeymen i Apprentices of the Plumbing d
Pipefjitng Industry, Local Union No. 81 (Morristown Construction Company.
Inc.). 237 NLRB 207 (1978).
"See, generally, Isis Plumbing & Heating Cao.. 138 NLRB 716 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
receive on the same terms as resident members, and the
reimbursement remedy ordered in this case gives them no
windfall but only equal treatment with other dues paying
members.'"
Accordingly, I shall recommend that Respondent be
ordered to reimburse all alien members who worked as
employees, other than members of unit companies, under
union-security agreements between Respondent and employ-
ers since April 8, 1976, for the difference between the
amounts they paid as dues to Respondent and the amounts
they would have paid if considered resident members. To
these amounts shall be added interest to be computed in the
manner prescribed in Florida Steel Corporation, 231 NLRB
651 (1977)."
CONCLUSIONS OF LAW
I. Respondent, Actors' Equity Association, is a labor
organization within the meaning of Section 2(5) of the Act.
2. The League of Resident Theatres, the League of New
York Theatres and Producers, the Council of Resident Stock
Theatres, the American Dinner Theatre Institute, the
Producers League of Theatre for Young Adults, the Musical
Theatre Association, the League Off-Broadway Theatres,
and the Council of Stock Theatres are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
3. By charging nonresident alien members of Respondent
greater dues than the dues charged other members of
Respondent while maintaining collective-bargaining agree-
ments which require union membership as a condition of
employment Respondent has attempted to cause employers
to discriminate against employees for reasons other than
failure to pay dues uniformly required as a condition of
employment and has failed to represent them fairly, thereby
engaging in unfair labor practices affecting commerce within
the meaning of Sections 8(b)(1)(A) and (2) and 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Actors' Equity Association, New York,
New York, its officers, agents, and representatives, shall:
1. Cease and desist from requiring nonresident alien
members working under union-security agreements to pay
greater dues to Respondent than other members or in any
like or related manner restraining or coercing employees in
the exercise of the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Reimburse all nonresident alien members who have
worked as employees under union-security agreements
between Respondent and employers since April 8, 1976, for
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1206
ACTORS' EQUITY ASSOCIATION
the difference between the dues they paid Respondent and
what they would have paid if considered to be resident
members in the manner set forth in the section of this
Decision above entitled "The Remedy."
(b) Post at its offices and at all other places where it
customarily posts notices to its members copies of the notice
attached hereto marked "Appendix." 3" Copies of said notice,
on forms provided by the Regional Director for Region 2,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Deliver to the Regional Director for Region 2 signed
copies of said notice in sufficient numbers to be posted by
employers signatory to union-security agreements with
Respondent, the employers being willing.
(d) Notify the Regional Regional Director for Region 2, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require nonresident alien members
working under union security agreements to pay greater
dues to us than other members and WE WILL NOT in
any like or related manner restrain or coerce employees
in the exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL reimburse all nonresident alien members
who have worked as employees under union security
agreements between Respondent and employers since
April 8, 1976, for the difference between the dues they
paid us as alien members and what they would have
paid if treated as resident members.
ACTORS' EQUITY ASSOCIATION
1207