American Federation of Television and Radio Artists

National Labor Relations Board - Board Decisions

Jul 28, 1966

160 N.L.R.B. 241 (N.L.R.B. 1966)

AMERICAN FEDERATION OF TV AND RADIO ARTISTS 241
[The Board set aside the election held on May 2, 1966, among the
employees employed at the facility located at 407 West Compton
Boulevard, Gardena, California.]
[Text of Direction of Second Election omitted from publication.] 2
a An election eligibility list , containing the names and addres',es of all the eligible
voters, must be filed by the Employer with the Regional Dimector for Region 21 within
days after the date of issuance of the Notice of Second Election by the Regional Direc-
tor The Regional Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director except in extra-
ordinary circumstances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed Excelsior Underwear, Inc,
156 NLRB 1236.
American Federation of Television and Radio Artists (AFTRA),
New York Local and Westinghouse Broadcasting Company,
Inc. (Del .). Case 2-CE43. July 28,1966
DECISION AND ORDER
On September 9, 1964, Trial Examiner Thomas F. Maher issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
as amended, and recommending that it, cease and desist, therefrom
and take certain affirmative action, as set forth in the Trial Exam-
iner's Decision attached as Appendix A to the attached Trial Exam-
iner's Supplemental Decision. The General Counsel anti the Respond-
ent filed exceptions to the Trial Examiner's Decision and the
Respondent filed a brief in support of its exceptions. Thereafter, on
April 6, 1965, the National Labor Relations Board issued an Order
reopening the record and remanding the proceeding to the Regional
Director for Region 2 for further hearing for the purpose of
adducing additional evidence, as set forth in the Board's Order
attached as Appendix B to the Trial Examiner's Supplemental Deci-
sion. On December 10, 1965, the Trial Examiner issued his Supple-
mental Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Supplemental Decision . There-
after, the General Counsel and the Respondent filed exceptions to
the Trial Examiner's Supplemental Decision and briefs in support
thereof.
160 NLRB No. 24.
257-551-67-vol. 160-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this proceeding including the Trial Examiner's Decision,
the Trial Examiner's Supplemental Decision, the exceptions and
briefs, and finds merit in certain of the exceptions of the Respondent.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent with this Decision and Order.
The American Federation of Television and Radio Artists
(AFTRA), New York Local, the Respondent herein, represents a
unit of radio performers at radio station WINS which operates in
the New York City area. The Respondent and its affiliates are parties
to numerous agreements, covering similar classifications of employees,
throughout the country, including agreements with various other
radio stations in the New York City area.
On July 28, 1962, the Charging Party herein called Westinghouse
or WINS, purchased radio station WINS from Gotham Broadcast-
ing Company,-and assumed the collective-bargaining agreement then
in effect between Gotham and the Respondent. Paragraph 8 of the
Gotham contract permitted WINS to purchase "package shows"
(i.e., broadcast material of any length produced by anyone other than
the station broadcasting it) on the condition that the producer of the
package show agreed in its contract with WINS "to sign, adopt and
conform to the" Gotham agreement and that such producer "becomes
a signatory to" the Gotham agreement "prior to the first broadcast
of the program." In addition, paragraph 9 of the Gotham contract
provided that the AFTRA Code of Fair Practice for Commercial
Broadcasting and the AFTRA Code of Fair Practice for Transcrip-
tions and Recordings "are hereby made a part of this agreement with
the same force and effect as though fully set forth herein" and that if
"there is any inconsistency between the said Codes and this contract
the Codes shall prevail." 1 Paragraph 65 of the 1963=1966 Code of
Fair Practice for Commercial Broadcasting contains a subcontracting
provision which is identical in substance to paragraph 8 in the
Gotham contract. The complaint does not allege that the Respondent
violated the Act by entering into or maintaining the Gotham contract
or AFTRA's codes of fair practices.
When the Respondent and Westinghouse began negotiations for a
new contract around the end of 1962, the Respondent requested that
I The Respondent and Its affiliates have issued various codes of fair practice , some of
which are in evidence . One of the codes which Is in evidence Is the 1963-1966 National
Code of Fair Practice for Commercial Broadcasting . This code, which apparently contains
the same provisions as the earlier codes, apparently signed by Westinghouse on or about
July 16, 1964 , is effective from November 16, 1963, to November 15, 1966, and governs the
wages, hours, and working conditions of "radio artists."
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 243
the new contract include paragraph 8 of the Gotham contract. West-
inghouse refused to include that clause or several modified versions
of that clause on the grounds that they were unlawful under the
antitrust laws and under Section 8(e).
During the final negotiation session, the Respondent proposed that
a clause, essentially the same as paragraph 7 of the present contract,
be included in the contract, and indicated that it would strike if the
contract did not contain such clause. Although Westinghouse's legal
counsel contended that even this clause was unlawful, the station
manager, who had the final authority as to the matter, said that
"he was not willing to accept a strike . . . that he would sign it, but
he had no intention of policing the wage rates being paid employees
by other employers with whom he happened to be doing business."
The parties signed their current agreement on August 6, 1963. Para-
graph 7 of this contract provides:
Nothing in this agreement shall be construed as preventing
WINS from buying package shows or other broadcasting mate-
rial made exclusively for use over WINS from independent
contractors providing, however, that WINS in its contract with
the packager receives a representation and warranty that the
performers of the package program, or other broadcast material,
have been paid compensation not less than the compensation
which would have been payable to said performers if WINS had
produced the program or other broadcast material itself.2
This contract, unlike the Gotham contract, incorporates the Respond-
ent's codes of fair practice only to a limited extent, and does not
incorporate any portion of a code affecting WINS purchase of pro-
gram material produced by subcontractors.
In August 1963, shortly after the parties signed the contract con-
taining paragraph 7, a question arose concerning the implementation
of paragraph 7. At that time WINS was planning to institute a heli-
copter reporting service for the purpose of reporting traffic condi-
tions during rush hours. During the early stages of WINS' negotia-
tions with Carson Helicopter, which ultimately provided this service,
WINS Station Manager Olds, who then assumed that the helicopter-
announcer came within the scope of paragraph 7 of the Respondent's
contract with WINS, discussed the terms and conditions of employ-
ment of this announcer with the Respondent's representative. How-
ever, in October 1963, when WINS signed a contract with Carson
Helicopter, WINS refused to accede to the Respondent's claim that
paragraph 7 requires that WINS insure that this announcer be paid
such compensation as if he were employed by WINS. WINS took
z The work "exclusively" was added to paragraph 7 subsequent to the final negotiation
session.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the position at that time that it could not affect the terms of employ-
ment of this announcer as he was the employee of another employer.
The Respondent instituted arbitration proceedings over this issue,
and the arbitration proceedings have been stayed by the terms of a
temporary injunction. No modification was ever made in the pay of
the helicopter-announcer and Carson Helicopter provided the heli-
copter reporting service until about the end of March 1964 when
WINS canceled the service.
The complaint alleges that the Respondent violated Section 8(e)
by entering into and by maintaining in effect paragraph 7 of its
contract with WINS.
In his original Decision and Order, the Trial Examiner found that
the issue was "one primarily of grammatical construction rather than
legal interpretation" ; that the language of paragraph 7 "accomplishes
precisely what language of Section 8(e) forbids"; that the Union
"by admittedly entering into such an agreement thereby violated
Section 8(e) . . ."; and that it was therefore unnecessary to find
whether the maintenance of the contract was a violation as alleged
in the complaint. He accordingly rejected the Respondent's offer of
proof concerning the implementation of paragraph 7 of the contract.
On April 6, 1965, the Board in light of its acceptance of the remand
by the Court of Appeals for the District of Columbia in the Wilson
case,3 reopened the record in the present case and remanded the pro-
ceeding for further hearing. The Board ordered that evidence be
received "concerning the object of paragraph 7 . . . including such
evidence as will enable the Board to determine whether each of the
parties . . . understood and acquiesced in a secondary object for the
clause . . . and/or whether secondary consequences within Section
8 (e)'s intendment would probably flow from ... paragraph 7...." 4
On December 10, 1965, the Trial Examiner issued his Supplemental
Decision in which he found that, in insisting on the inclusion of
paragraph 7, the Respondent's "objectives were two fold"-the pro-
tection of union members locally and the protection of those employed
in the unit; and that as at least one objective was not "the protection
of unit members," the execution of paragraph 7 was a violation of
Section 8(e). He further found "it unnecessary to draw any further
conclusions relative to the implementation to the contract ..."
3 Meat and Highway Drivers, Docknven, Helpers and Miscellaneous Truck Terminal
Employees , Local Union No. 710 , IBT v. N L.R.B ., 335 F .2d 709 (CA D.C .), enfg. In part,
setting aside in part, and remanding in part Wilson and Co. , Inc, 143 NLRB 1221. See
also Loeal 710 , Meat and Highway Drivers, etc . v. N.L.R.B., 348 F.2d 803 ( C.A.D.C.).
4 See Meat and Highway Drivers v . N.L.R.B ., supra at 716 , where the court said : "To
conclude that a contract term falling within the letter of § 18 (e) properly falls within its
-prohibition , there must be either a finding that both parties understood and acquiesced in
a secondary object for the term, or a finding that secondary consequences within § 8(e)'s
intendment would probably flow from the clause, in view of the economic history and
circumstances of the industry , the locality, and the parties." [ Footnotes omitted.]
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 245
As we consider this case for the second time, the issues before us
are as follows: (1) Was paragraph 7 unlawful on its face; (2) If not,
did the parties nonetheless "understand and acquiesce" in a secondary
object for paragraph 7; and (3) Did the Respondent violate Section
8(e) by seeking to give effect to paragraph 7 with respect to the
helicopter-pilot of Carson Helicopter Company?
1. The lawfulness of paragraph 7 on its face
We initially find that, on its face , paragraph 7 is lawful under
Section 8 (e). The test as to the primary nature of a clause has been
stated by the Court of Appeals for the District of Columbia as
whether the clause "seeks to protect wage and job opportunities of
the employees covered by the contract." 5 The Respondent's contract
with WINS regulates the terms of employment of WINS employees
who perform on the radio. Paragraph 7 of the contract requires that
radio performers who are employed by subcontractors in the produc-
tion of broadcast material made exclusively for WINS should not
be paid "less than the compensation . . . payable to said performers
if WINS had produced the . . . material itself." By thus removing
from WINS "the temptation of cheap labor through substandard
subcontractors" paragraph 7 would protect the work and work stand-
ards of unit employees represented by the Respondent. We accord=
ingly find that' paragraph 7 constitutes a lawful-" work standards"
clause.6
2. The object of the parties in agreeing to paragraph 7
The question remains, however, whether, notwithstanding the fact
that paragraph 7 is hiwful on its face, the parties understood and
acquiesced in a secondary object for the term .7'`Groot, the Respond-
ent's executive secretary, testified, and the Trial Examiner found,
that one of the objects of the Respondent in seeking paragraph' 7
was the protection of work standards of individuals ' working at
WINS who were represented by the Respondent. However, relying
on Groot's further testimony that the Respondent also sought by
means of paragraph 7 to protect the work standards of employees
"in the area" whom it represented, the Trial Examiner concluded that
under the Board's decision in Calhoun Dry Walla the Respondent
violated Section 8(e) by entering into the clause with the object of
protecting union members generally. We disagree for the following
reasons.
5 orange Belt District Council of Painters No. 118 v . AT L R B ., 328 F 2d 534, 538
(CADC.).
8 Meat and Highway Drivers v N.L R B ., supra at 716
7 See the language of the Court of Appeals in Meat and Highway D ivers v. N.L R B.,
supra, quoted above in footnote 4.
8154 NLRB 997.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the first place, Groot made it clear in his testimony that only in
its "original discussions" with WINS did the Respondent seek to
protect the work standards of employees "in the area." At that time,
the Union was demanding that the agreement include paragraph 8
of the Gotham contract. This paragraph, which requires that sub-
contractors become signatories to the union agreement, would appear
to be -a "union signatory" clause, and if the parties had entered into
a contract including such clause they probably would have violated
Section 8(e). But WTINS objected to paragraph 8 precisely because
in its view it violated Section 8(e), and after further negotiations
the parties reached agreement on paragraph 7, which we have found
is a lawful primary clause on its face. Indeed, even when it agreed
to paragraph 7, WINS stated that it had no intention to police the
wages of other employer's employees. We also consider it significant
in this regard that, in testimony not mentioned by the Trial Exam-
iner, Groot further said that the Respondent's concern for other
employees in the area "did not reflect itself in the final provisions in
the agreement." It is thus apparent that, although in the early stages
of negotiations the Respondent may have been seeking to achieve a
secondary object, WINS never acquiesced in this object, and that
paragraph 7, resulting from the give and take of the bargaining
negotiations, represents a mutual effort by the parties to reach an
agreement which was lawful under Section 8(e). That the parties
had a lawful object in entering into an agreement in August 1963,
is further indicated by the fact that while, as noted, the Gotham con-
tract, which had been assumed by WINS, incorporated the "union-
signatory" provisions in the Respondent's codes of fair practices, the
later agreement between WINS and the Respondent did not incor-
porate such provisions.
In any event, in disagreement with the Trial Examiner, we find
that even if Groot's statements represented an object of the parties
in obtaining paragraph 7, such object was not secondary. In finding
that Groot's statement that the Respondent was seeking to protect
union members in the area indicated an unlawful object, the Trial
Examiner relied particularly on the Board decision after remand in
the Calhoun Drywall case.9 In that case the Board held that the
respondent union violated Section 8(b) (4) (B) by engaging in con-
duct "aimed at aiding union members generally." However, there,
unlike the present case, the signatory employer did not employ those
categories of employees whose work standards the union sought to
affect. Since in such a situation there was no "principal work unit,"
9 Supra; see also Muskegon Bricklayers Union # 5 (Greater Muskegon General Contrac-
tors Asosciation ), 152 NLRB 360, Member Fanning dissenting on grounds not relevant
herein.
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 247
the union's conduct was clearly designed not to protect the wages and
job opportunities of employees covered by the contract but solely to
protect union members generally. Such conduct, both the Board and
the courts have held, is unlawful under Section 8(b) (4) (B).10 But
here, paragraph 7 deals with the subcontracting of the production
of broadcast material and the bargaining unit represented by the
Respondent includes radio performers. We have already found that
the Respondent was seeking to protect these unit employees by means
of this clause. The fact that the Respondent's representative admitted
that the Union also desired to protect the wage standards of union
members not working for WINS does not, by itself, affect the law-
fulness of such conduct. This is true because whenever a union also
represents other units of employees doing the same type of work, its
conduct aimed at setting the wage rates and protecting the work of
unit employees will necessarily have the additional and incidental
effect of protecting the wage standards of such other employees. To
find that because of this additional object the Union's conduct is
secondary would mean that in most cases it would not be permissible
for a union to take action to obtain a "work-standards" clause.
We accordingly find that paragraph 7 is lawful on its face and the
parties did not understand and acquiesce in a secondary object for
the clause 11
3. The implementation of paragraph 7
We also reject the General Counsel's further contention that, even
if "at the time of the contract execution," the parties had "no sec-
ondary object" in entering into a contract containing paragraph 7,
the subsequent application of paragraph 7 to the Carson Helicopter
contract was a secondary interpretation or implementation of that
paragraph, violative of Section 8(e). The Board has held that parties
to an agreement within the scope of Section 8 (e) violate that section
by maintaining, reaffirming, or giving effect to such agreement.12
10 Calhoun Drywall Company , supra and the cases cited therein
11 The General Counsel also contends that the Respondent's codes of fair practice are
evidence that the parties had a secondary object in entering into paragraph 7. However,
although the commercial radio broadcasting code contains what is apparently an unlawful
union signatory clause, Westinghouse did not sign this code until July 1964, some months
subsequent to the execution of the contract containing paragraph 7, and contrary to the
finding of the Trial Examiner , the WINS contract, unlike the Gotham contract, does not
incorporate by reference code provisions relating to work to be done for WINS by sub-
contractors . Further, in view of the facts that paragraph 7 relates only to the buying of
broadcast material "made exclusively for use over WINS from Independent contractors"
and WINS has normally purchased only news programs from independent contractors,
which Is the type of work done by unit employees, and It has purchased no packaged pro-
grams for its "exclusive" use, we find it improbable that "secondary consequences" would
flow from paragraph 7. Cf. Meat and Highway Drivers v. N L R.B., 335 F 2d 709, 716
12 Dan McKinney Co., 137 NLRB 649, Members Fanning and Brown not participating ;
Retail Clerks Union, Local 770 (The Frtto Company), 138 NLRB 244, Members Fanning
and Brown not participating, remanded on grounds not relevant herein , 330 F 2d 458 ; cf.
Truck Drivers Local No 696, IBTCWVH ( Freeto Construction Co, Inc.), 149 NLRB 23
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, as the record shows that WINS refused to implement para-
graph 7 by refusing to insure that the Carson Helicopter employee
would receive the compensation which he would have received if he
were an employee of WINS, there is no factual basis for concluding
that the parties' conduct with respect to the Carson Helicopter con-
tract constituted, entering into an agreement within the meaning of
Section 8 (c) of the Act 13
As we have found that the Respondent has not violated the Act,
we shall accordingly dismiss the complaint in its entirety.
[The Board dismissed the complaint in its entirety.]
MEMBER JENIKINS took no part in the above Decision and Order.
13 United Association Pipe Fitters Local Union No 539 (American Boiler Manufacturers
Association ), 154 NLRB 314, footnote 7; Puget Sound District Council, Lumbei & Saw-
mill Workers, ` United Brotherhood of Carpenters and Joiners of America, AFL-CIO
( United States Plywood Corporation ), 153 NLRB 547, footnote 1.
In view of this finding , we find it unnecessary to decide whether, if WINS had agreed
to apply paragraph 7 to Carson Helicopter' s employee . there would be a violation of Sec-
tion,;8 ( e),,,because , as contended by the General Counsel, the work of the pilot-announcer
was not "fairly claimable" by employees in the unit represented by the Respondent Cf.
Meat and-Highway Driv ers v. N:L.R B., supra, at 713 and 714 Our decision here is of
course confined to the particular facts of this case and is not to be read as implying that
we would not find unlawful under Section 8(e) a clause written, or understood and in-
tended by, the contracting parties , to cover in addition to "unit work" package shows or
other broadcast material of a kind which unit employees do not and could not perform
TRIAL 'EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
- On September 9,'4964, a Decision , was issued by Trial Examiner Thomas F.
Maher in the above -entitled proceeding finding that American Federation of Tele-
vision and Radio =Artists (AFTRA), New York Local, Respondent herein, had
violated . Section .8 (e) of, the National Labor Relations, Act; as, amended (29 U.S.C.,
Seca 151 et seq.), herein called the Act,, by entering into agreement with the West-
inghouse B
,
roadcasting Company, Inc., (Del :), Charging Party in the ' proceeding
and hereinafter referred to as the, Company, whereby it agreed to refrain from
contracting with , an independent 'contractor , for packaged shows or other broad-
cast materials made exclusively for use over the Company's radio station WINS
where the performers on such programs and broadcast materials were paid at
rates less than would have been payable under the agreement to the Company's
performers if WINS had produced such programs.' .
Thereafter on April 6, 1965, by order of an , Associate Executive Secretary of
the National Labor Relations Board , herein referred to as the Board , and at the
direction of the Board, this proceeding was remanded to the Regional Director of
the Board 's Region 2 for further hearing before me for the purpose of receiving
evidence specified in detail hereafter.
Pursuant to subsequent notice a hearing was held before me in New York, N.Y.,
on August 10 and 11, 1965, where all parties were represented by counsel and
afforded full opportunity, within the terms of the order of remand , a copy of
which is attached hereto as Appendix B, to be heard, adduce evidence, present
oral argument , and file briefs with me. Briefs were filed by counsel for the Gen-
eral Counsel and for the Respondent on October 5, 1965. Counsel for the Com-
pany did not file a brief.
Upon the consideration of the entire record in this case , including the record of
the hearing originally held before me on June 10, 1964, the briefs thereafter filed
'A copy of the aforesaid Trial Examiner 's Decision is attached hereto as Appendix A
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 249
with me by the parties, my Decision therein issued on September 9, 1964, and
those briefs recently filed, and upon my observation of the witnesses appearing
before me I make the following:
FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BOARD'S REMAND
As set forth in detail (infra, Appendix B) the Board, by its April 6, 1965,
remand, acquiescing in a decision of the Court of Appeals for the District of
Columbia Circuit in Meat and Highway Drivers, IBT, Local Union No. 710 v.
N.L.R.B., 335 F.2d 709, reopened this proceeding to receive evidence concerning
the object of paragraph 7 of the agreement between Respondent and the Company
which provided as follows:
Nothing in this agreement shall be construed as preventing WINS from buying
package shows or other broadcast material made exclusively for use over
WINS from independent contractors providing however, that WINS in its
contract with the packager receives a representation and a warranty that the
performers on the package program, or the broadcast material, have been
paid compensation not less than the compensation wihch would have been
payable to said performers if WINS had produced the program or other
broadcast material itself.
In its order the Board detailed 14 categories of evidence which it believes will
enable it to determine whether each of the parties to the contract understood and
acquiesced in a secondary object of the clause (i.e. the protection of union mem-
bers generally rather than the protection of bargaining unit members solely) and/or
whether secondary consequences within the intendment of Section 8(e) of the Act 2
would probably flow from the disputed contract provision in view of the economic
history and circumstances of the industry, locality, and the parties to the contract.
The answers to the 14 questions propounded by the Board will be set forth in
detail hereafter.
II. THE NATURE OF THE DISPUTE ARISING UNDER THE CONTRACT
In my original Decision in this matter it was stated that factual details relating
to the implementation of the allegedly unlawful contract would not be detailed for
the reason that they were irrelevant and after the fact to any determination of
whether the execution and existence of the contract provision in questioh were
itself violative of Section 8(e). The Board having concluded contrarily that imple-
mentation is a factor in determining whether it is unlawful "to enter into any
contract" of the variety alleged here, I shall summarize the findings based upon
the additional evidence supplied.
Prior to October 1963 the Company's radio station WINS provided traffic infor-
mation on a makeshift basis, gleaning the pertinent details through news assistants
not members of the bargaining unit by telephone from such sources as the Transit
Authority, the various police departments in the area, and by individual reports of
particular traffic situations. This information, in report form, was broadcast by
announcers without any prearranged schedule.
On October 21, 1963, the Company entered into an agreement with Carson
Helicopters, whereby that organization would provide a helicopter and pilot to
provide traffic reporting service on a 5 day per week basis, 2 hours each morning
and 2 hours in the late afternoon. Because of recurring operational difficulties
which resulted in frequent cancellation of flights and programs the Company
canceled its contract with Carson on March 31, 1964, and has not since engaged
in any similar traffic reporting operation.
Section 8(e) provides, In pertinent part, as follows :
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any other employer, or to cease
doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent unen-
forceable and void.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beginning on April 19, 1965, approximately 10 months following the first hear-
ing in this matter, the program format of WINS was materially changed from
the usual pattern of music, specialty, and news programs, to one whereby its 24
hour broadcast program consisted exclusively of news.
The specifics of the Company's relationship with Carson and the nature of its
broadcasting operations will be developed by consideration of the answers to the
questions propounded by the Board in its remand order.
mI. THE EVIDENCE REQUESTED BY THE BOARD
Pursuant to the Board's order evidence was sought as it specifically related to
the question propounded. For reasons of order and convenience the findings which
I make based upon the evidence presented will be set forth, following the related
question, in the numerical order in which it was initially requested, as follows:
1. The scope of the bargaining unit and the number of employees therein. It
is stipulated among the parties that in conformity with the August 6, 1963, agree-
ment between the Respondent and the Company the bargaining unit included all
actors, singers, announcers, newsmen , and the special program announcers, and
prior to that time the category of "newsmen" had not been included in the
earlier contract. It was further stipulated that for several years prior to the present
time the Company has not had employees in the actor or singer category for the
reason that programs involving such categories of employees have not been trans-
mitted over station WINS.
Prior to April 1965, the bargaining unit consisted of 2 newsmen, 5 special pro-
gram announcers, generally referred to as disc jockey, and 6 staff announcers.
After April 1965, the bargaining unit constituted 21 or 22 employees, all classified
as newsmen-announcers.3
2. The types of work covered by the collective-bargaining agreement. The 1963-
1966 National Code Of Fair Practice For Commercial Broadcasting, sets forth in
considerable detail in its paragraph 55 a description of the work covered by the
code and collective agreements made in conjunction therewith. Upon the credited
testimony of Joseph O. Schertler, the Company's industrial relations manager, it is
clear that WINS has never used either actors or singers but only announcers and
special staff program announcers. Since April 1965 there have been added the
duties of news gathering, writing, and editing, regardless of whether the individuals
concerned regularly appear before the microphone. Thus the unit presently included
newsmen, announcer newsmen or announcers, and news writers who did not go on
the air.
3. The definition of the terms "package shows" and "package programs" as used
by the parties in the contract. It is stipulated that the terms are synonymous. They
refer to a program of whatever length that is produced by a person, firm, or cor-
poration, other than WINS, for exclusive use by WINS. Such a program can be in
the form of a dramatic show, variety show, newscast or report, poetry reading, art
or book reviews or criticisms, or any other broadcast material for use on WINS,
that WINS might itself produce, using its own facilities and employees, but chooses
not to produce itself and buys or hires from someone else.
4. The extent to which the Company, in the normal conduct of its business,
purchases from others, for its exclusive use, packaged shows or other broadcast
material. News Director Stan Brooks credibly testified without contradiction that
during the time of his employment since September 1962 no material has been
used on WINS which has been prepared by another company for WINS' exclusive
use. It appears from other credited testimony in the record, however, that numerous
programs have been prepared by other outside agencies and individuals for use on
WINS, but such programs were also presented on other radio stations and there-
fore were not deemed to be for WINS' exclusive use. Examples of this were New
York Stock Exchange reports presented by Miss Lolly Glimm and materials pre-
pared by the Company's Washington News Bureau for use on the several broad-
casting stations owned by the Company and/or its affiliates. There was also evi-
dence that certain so-called free-lance reporters prepared and presented materials
over WINS which were also presented elsewhere.
5. Whether, and to what extent, the Respondent also represents employees out-
side of the bargaining unit who are engaged in the production of such packaged
8 The credited , undenied testimony of Stan Brooks , news director of WINS
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 251
shows or other broadcast materials . Inasmuch as there do not appear to be pack-
aged shows on other broadcast materials prepared by employees outside the bar-
gaining unit for exclusive presentation on WINS , it follows that the Union 's repre-
sentation of employees cannot be determined . It does appear, however, that
Respondent and its national affiliates do have 2,837 separate agreements with
employers.
6. Whether and to what extent any person, firm , or corporation whose employees
are not represented by Respondent , and which packages or prepares programs,
commercial announcements , or other material similar in kind to that broadcast by
the Company , pays to its employees compensation substantially the same as that
paid by the Company to its own employees . Neither the Company nor Respondent
could provide any knowledge or information that would answer this question.
Inasmuch as it would involve a survey of the entire industry , including such mem-
bers of the industry as are not represented by Respondent , the information cannot
be obtained without a canvass of each firm or organization in the industry itself.
7. Whether employees hired by Westinghouse Broadcasting Co., to perform
services covered by the Company 's collective -bargaining agreement with the
Respondent also performs similar services by other producers of packaged shows
and programs when and if not employed by the Company. The WINS employees
are available for outside engagements , as permitted by the collective -bargaining
agreement , and do perform them. Included in the record are a number of individual
affidavits of employees attesting to their outside activities within this limitation.
8. The terms of the contract between the Company and Carson Helicopter, Inc.,
with respect to whether the helicopter pilot was to perform the traffic-announcing
duties himself or whether an announcer was to accompany him in the helicopter to
perform such duties. The contract referred to provides in pertinent part as follows:
It is agreed that such pilot will broadcast traffic reports and other materials
requested by WINS at whatever times and on whatever days the station
requests . CARSON warrants that such pilot and any substitute or replace-
ment therefor , will have the requisite qualifications for full and satisfactory
performance of all obligations hereunder.
The contract further provides that "WINS may assign one (1 ) observer to the
helicopter for any flight ." That this provision was in fact intended to provide that
the pilot himself was to do the announcing was substantiated by the credited testi-
mony of Mark Olds, former general manager of station WINS, and Richard A.
Carson , president of Carson Helicopters , Inc. In this respect I specifically reject
as unsubstantiated the interoffice memo written by a company employee, Jerry
Sherwin, on March 18, 1964, several weeks before the termination of the helicop-
ter contract , to the effect that there would henceforth be a pilot and an announcer
aboard. It was credibly established to my satisfaction by testimony of both Olds
and Carson that the reference to an announcer with the pilot was erroneous, and
that the individual referred to in the memo was in fact a newly assigned pilot who
was being oriented in the duties he would subsequently assume as a "backup" pilot.
I would similarly reject as not responsive to the Board 's inquiry the correspond-
ence between Company and Respondent's representatives submitted in evidence by
Respondent in support of its claim that the contract was silent as to whether the
contract terms provided that an announcer accompany the pilot. The contract
terms, as quoted above, are unequivocal on this point and I accept them as respon-
sive to the question . The correspondence offered by Respondent relates to the
eventuality of the Company hiring an announcer or a pilot. This never materialized
nor does the proferred evidence address itself to the question asked.
9. The union affiliation, if any, of Carson's pilots . The pilots were not union
members .4
10. Whether the Union represents any pilot-announcers outside of the bargaining
unit. The Union represents the helicopter reporter employed by radio station WJRZ,
Newark, New Jersey. Similarly, a pilot-announcer employed by station WOR, New
York, N.Y., to operate a company-owned helicopter was determined by arbitration
not to be a member of the bargaining unit. In contradistinction it is to be noted that
there is no dispute that the pilot-announcer involved herein was employed by Car-
son Helicopter to pilot a plane owned by and under the control of that organization.
11. If the pilot performed the announcing duties, the rates paid to, and benefits
* The credited testimony of Richard Carson.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received by, the pilot from Carson as compared with the rates paid and benefits pro-
vided by the Company to its employees in the unit. Carson paid the pilot for his
duties as a pilot and was not paying him for doing any announcing or reporting.5
12. Whether the Company had in its employ in the unit any person who could
have performed the complete duties of pilot-announcer . News Director Stan Brooks
testified that he knew of no one in the organization's employ who could fly a heli-
copter. Similarly, former General Manager Olds testified that to the best of his
knowledge there was no one in the employ of the station who could fly a helicopter.
There was no other evidence in the record to suggest that any employee of the sta-
tion was so qualified
13. The factors, including but not necessarily limited to economics, availability
of WINS personnel, and the skills requited for traffic announcing, involved in the
decision to contract the announcing duties to Carson in lieu of contracting for the
use of a helicopter and providing a unit employee of the Company to perform the
announcing duties. At the outset it is to be noted that radio stations have been
known to own their own helicopters and hire pilot-announceis. Tnus (supra) station
WOR had such an individual in its employ to fly its own helicopter and it was
determined upon arbitration that this employee was not a member of the bargaining
unit of that station. Former General Manager Olds credibly testified that such an
arrangement would have cost the Company considerably more to pay an announcer
to perform duties which would most certainly be considered hazardous. Under the
existing terms of the contract with AFTRA arithmetical computations clearly show
that such a cost for the employment of a staff announcer would exceed the approxi-
mate $10-per-hour rate paid by Carson to its pilots, based upon Carson's credited
testimony concerning the salaries paid his pilots which are based upon a 4-hour day,
5-day week schedule . In elaboration of the Company's estimate of the hazardous
nature of such work , if z,ssigned to a staff announcer , Olds stated that he did not
deem such an assignment a matter of good policy at this early stage of the new
program. No one volunteered for duty.
14. Any other evidence relevant to the issue of whether the clause in question, as
interpreted and applied, was directed, in whole or in part, at a secondary object as
defined in the remand order (i.e. the protection of union members generally rather
than the protection of unit members solely ). The Company 's Industrial Relations
Manager Schertler credibly quoted Respondent's Executive Secretary Ken Groot as
stating that a clause proposed during contract negotiations that was similar in con-
tent to the final paragraph 7 in dispute was essential to stop the Company or any
other producers from going to scab producers throughout the country, from buying
from non-AFTRA people, or the few AFTRA people who would sometimes be
willing to work under scale . Groot never denied having made this statement. The
Company on the other hand stated at the time its belief that the inclusion of the
clause might constitute a violation of antitrust laws. In thus objecting as a legal
matter at the time of the 1963 contract execution to the inclusion of paragraph 7
the company management agreed, according to its attorney, John W. Steen, whom
I credit, to accept the provisions stating to Respondent's repre,entative it had no
intention of policing the wage rates being paid employees of other employers with
whom it happened to be doing business.
Respondent submitted as evidence of its objective , as required in the Board's
inquiry, collective-bargaining agreements that it has with employers. Included in
these submissions are the AFTRA National Sustaining Radio Agreement for Actors
and Singers, the Code of Fair Practice for New York Local Television Broadcasting,
and similar codes for various other regions throughout the country wherein AFTRA
represents employees in the radio and television industry . There is also in evidence
the 1963-1966 National Code of Fair Practice for Commercial Radio Broadcasting.
Paragraph 66 of this document states as follows:
Purchase of Packaged' Shows: Nothing in this Code shall be construed as pre-
venting the Producer from buying packaged shows from fair independent con-
tractors ; provided that the Producer must, in its agreement with the independent
contractor , include a provision requiring such contractor to sign, adopt and
conform to AFTRA's Code of Fair Practice, and further providing that such
independent contractor becomes a signatory to such code and a signed copy of
the code is delivered by the Producer nr independent contractor to AFTRA
5 The credited testimony of Carson
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 253
not later than 24 hours (excluding Saturdays, Sundays and holidays) prior to
the first broadcast of the program. AFTRA agrees with the Producer that if
an independent contractor has signed this Code and the Producer has com-
plied with this paragraph, AFTRA will not exercise its right to strike against
the independent contractor so as to create program emergencies for the
Producer.
The contract between Respondent and the Company dated August 6, 1963, which
includes the disputed paragraph 7, also contains the following paragraph applicable
to the Code of Fair Practice:
8. Except as provided in Paragraph 12, Page 13 (relating to network broad-
casts), or otherwise specifically provided in this agreement, programs, tran-
scriptions, or other material produced by Station WINS, whether or not broad-
cast on Station WINS and/or which are broadcast on other stations, shall be
covered by all the terms and conditions of the then current applicable AFTRA
Code of Fair Practice.
Explaining the relationship of the codes to separate contracts such as the one under
consideration here, Respondent's Executive Secretary Groot stated:
We are concerned about material which is made available to radio and tele-
vision stations in the New York area, as we are in any other area, and main-
taining a standard which relates to that material, so that material which is
broadcast on one station can not be broadcast at less than material which is
broadcast at another station when it is made under those contracts.
Upon further examination by counsel, Groot explained that in the process of
negotiation the Company had asked that a subcontracting clause contained in the
1960 agreement be deleted and that he objected to this request. Groot testified to
nothing more than the fact that he did object, but at the hearing before me he stated
the reasons for his objection. There is nothing in the record to suggest, however,
that these reasons were expressed to anyone at the time of the negotiations. As he
expressed them to me at the hearing they were as follows:
Q. What was the basis of your objection?
A. It was a much stronger provision. It obligated the Company to secure
compliance with the collective bargaining agreement by any sub-contractor who
would supply material to WINS to broadcast on WINS.
Q. Why did you want to have a sub-contracting provision in your collective
bargaining agreement?
A. We were concerned that by the process of sub-contracting there would be
danger to our collective bargaining unit at the Station, and the possible per-
formance of broadcast functions by other people, performers, who were not
covered by collective bargaining agreement at rates and conditions which were
less than those provided in the collective bargaining agreement.
Our sole concern was the protection of the individuals who were working at
the station and those who were represented by AFTRA as part of the collective
bargaining agreement in that Station. I say our sole concern. I mentioned
previously that there was a further consideration of protecting the standards
that we had established, protecting the unit itself, the people who work there
as well as the standard which we had established.
Groot appears to have involved himself in a contradiction in describing what was
and what was not his concern in securing the agreement referred to. Thus, thereafter
on cross-examination, after first denying that one of the purposes in securing para-
graph 7 was to maintain the employment conditions set forth in the Respondent's
bargaining agreements in the New York area he proceeded to indicate an objective
which would seem to be directed to the protection of union members generally,
when, with respect to initial discussions with WINS, he acknowledged having stated
during the investigative phase of this proceeding:
The Union's objective was two-fold, one to endeavor to maintain reasonable
wages and working conditions, so that employers who executed collective bar-
gaining agreements with the Union would not be placed by the Union in unfair
competition with each other by permitting some employers to maintain pro-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gramming from other employers at wages, hours and employment conditions
substantially below those set forth in collective bargaining agreements in the
area.
and directed to the members of the unit, as well thus
The second reason was that the Union was concerned about the increasing
trend by radio stations to sub-contract work and services normally performed
by regular staff employees of the radio station so that instead of using the
services of staff employees at the rates and under the employment conditions
established by collective bargaining agreement and intended to be performed
by members of the collective bargaining unit, the station would be able to go
outside to independent contractors or individual producers or packagers and
subcontract for a programming service normally furnished by the station itself
at rates and under conditions less than those established in the collective
bargaining agreement for the members of the bargaining unit.
By way of apparent further explanation Groot thereafter stated:
Obviously, one contract and the terms of that agreement affect the terms that
we negotiate in every collective bargaining agreement. This means simply that
if we allow one station to include the right to purchase material from a sub-
contractor at rates which are less than those provided in that contract, that has
to damage relationship and the bargaining-collective bargaining at any other
station in the New York area.
IV. CONCLUSIONS
The basic conclusion required by the Board's order of remand is the determination
of whether either or both of the parties to the collective-bargaining agreement
which included paragraph 7 understood and acquiesced in a secondary object for the
clause and/or whether secondary consequences would flow from it on the basis
of certain circumstances to be gleaned from additional evidence.
The secondary object, as defined by the Board in its order of remand is "the
protection of union members generally rather than the protection of unit members
solely." Thus by its inclusion of the word "solely" the Board would consider the
secondary objective to be established if findings based upon any substantial, credible
evidence would establish that paragraph 7 of the complaint was negotiated, upon
the insistence of AFTRA, for "the protection of union members generally." The
findings set forth above amply establish this.
In the first place, the language of the contract of which the disputed paragraph 7
is a part is not, in fact, a self-contained document. Indeed by its paragraph 8 it
includes, by reference, AFTRA's Code of Fair Practice wherein standards are
established for members employed in the industry (supra at page 7). And in his
explanation of this, AFTRA's Executive Secretary Ken Groot, the gentleman who
demanded and secured paragraph 7 in the contract on AFTRA's behalf, stated, if
I may repeat:
We are concerned about material which is made available to radio and tele-
vision stations in the New York area, as we are in any other area, and main-
taining a standard which relates to that material, so that material which is
broadcast on one station can not be broadcast at less than material which is
broadcast at another station when it is made under those contracts.
A reading of this explanation suggests nothing less on the part of AFTRA's bar-
gaining representative than a purpose (or object ) of maintaining industry standards.
I am not unaware , of course, that Groot also testified that "his sole concern was
the protection of the individuals who were working at the station." But in the next
breath he appears to have involved himself in a contradiction, saying, "there was
a further consideration of protecting the standards we had established, protecting
the unit itself, the people who worked there as well as the standard which we had
established." [Emphasis added.] (Supra at page 8.) Groot thus would seem to be
supplying the dual objective of which the Board inquired. Similarly Groot acknowl-
edged having stated on an earlier occasion a dual purpose in securing paragraph 7,
when he stated , in part (supra at page 8 ), that the Union's objectives were two-
fold, and that one was to maintain wages and working conditions so that employers
executing agreements with the Union would not be placed in competition with each
other by permitting other employers to "maintain programming" (i.e. sub -contract)
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 255
from employers paying substandard wages. Citation of authority is not necessary at
this point to conclude as I do that Groot was suggesting a maintenance of standards
in the industry , locally, for the protection of union members , locally, and not just
those employed by one employer, WINS.
And finally Groot , by way of further explanation , added further emphasis to
AFTRA's secondary objective when he stated ( supra, at page 9) that "the terms
of that agreement affect the terms that we negotiate in every collective bargaining
agreement" [emphasis added ]. And, by way of explaining the vice of sub -contracting
at less than AFTRA's scale , he explained that it would damage bargaining relation-
ships "at any other station in the New York area."
Upon the foregoing, therefore , it is clear from the statements of the representative
of Respondent who sought and obtained from the Company the contract clause
alleged to be violative of the Act, that at least one objective in requesting and
obtaining this clause was the protection of wage and working standards of the mem-
bers of the Union generally who worked in the New York area . As it has been held
by the Board that any contract provision executed for such an objective constitutes
a violation of the Act ,6 I accordingly conclude and find that Respondent, by
demanding and requiring as a condition of executing a collective -bargaining agree-
ment containing a "work-standards " agreement denominated as paragraph 7, as set
forth above (supra at page 2), and by thereafter executing a contract containing
this agreement thereby violated Section ( 8) (e) of the Act.
Having found that Respondent , by the purpose and objective manifest in the
negotiation and execution of the contract herein , violated Section 8(e), I find it
unnecessary to draw any further conclusions relative to the implementation of the
contract , the nature of the broadcasting industry in the New York area, or the
intricacies of helicopter traffic reporting.
Similarly , as I have found and conclude that one of Respondent 's stated objectives
in procuring paragraph 7 was an objective held by the Board to contravene the
statute, I find it unnecessary , as urged in General Counsel 's brief, to consider the
relevance of the Supreme Court 's recent decision in United Mine Workers v.
Pennington 7 to the legality of such contract provisions as paragraph 7 herein.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of AFTRA set forth in section III of my Decision attached hereto
as Appendix A, having occurred in connection with Westinghouse 's operation of
station WINS, I conclude and find to have a close , intimate , and substantial relation
to trade, traffic , and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
VI. THE REMEDY
Having found and concluded that AFTRA has engaged in an unfair labor prac-
tice, I shall recommend that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
APPENDIX A
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 15, 1964, by Westinghouse Broadcasting Com-
pany, Inc. (Del.), Charging Party herein, the Regional Director for Region 2 of the
National Labor Relations Board, herein called the Board, issued a complaint on
behalf of the General Counsel of the Board on April 30, 1964, against American
Federation of Television and Radio Artists (AFTRA), New York Local, Respond-
ent herein and frequently referred to as AFTRA, alleging a violation of Section
8(e) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, at
seq.), herein called the Act. In its answer duly filed on May 19, 1964, Respondent,
while admitting certain allegations of the complaint, denied the commission of any
6 Orange Belt Belt District Council of Painters #48, AFL-CIO, 153 NLRB 1196.
7 381 U.S. 657.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice. Thereafter, on May 25, 1964, Respondent filed with the
Regional Director its motion to dismiss complaint, which motion and general coun-
sel's opposition thereto were referred to me for disposition after opening of hear-
ing in this proceeding.
Pursuant to notice the hearing was held before me on June 10, 1964, in New
York, New York. All parties were represented by counsel and afforded full oppor-
tunity to be heard, to present oral argument, and to file briefs with me. Immedi-
ately upon the opening of the hearing and the admission into evidence of the for-
mal pleadings in the matter, counsel for the General Counsel invited my attention
to the Respondent's motion to dismiss, and the opposition thereto previously re-
ferred to me, and requested that I rule thereon. Upon my determination at that time,
after review of the pleadings, that justiciable issues were presented by the pleadings
for my determination, I denied the motion, and at this time reaffirm my ruling.
Whereupon counsel for the General Counsel moved, without opposition, for judg-
ment on the pleadings. In the course of oral argument on this motion Respondent
sought by way of offer of proof to submit a stipulation of facts designed to estab-
lish circumstances under which the contract provision, the basis of the alleged ille-
gality herein, had been implemented. Upon my ruling that the offer of proof would
be received into the record but its relevance to the issues not then determined coun-
sel for the General Counsel moved in the alternative, without objection, for sum-
mary judgment, the sense of such motion being that in the event I thereafter con-
cluded that the stipulated facts were relevant then consideration of them would
not be foreclosed by a motion restricted only to the pleadings. Thereafter, on
June 26, 1964, I granted. the motion for summary judgment to the extent that I
found it unnecessary to take any evidence in support of the complaint or Respond-
ent's answer thereto, excepting Respondent's offer of proof by way of stipulation,
should I herein determine it to be material.' For reasons which shall appear herein
I have not considered Respondent's offer of proof respecting contract implementa-
tion and will reject it as not being material evidence in this proceeding.2 Quite
apart, however, from its function as Respondent's offer to prove contract imple-
mentation the stipulation of facts contains information relevant to the nature of
the employer's business and to its collective-bargaining agreement with AFTRA,
which facts I shall rely on herein.
Briefs were filed by all parties on August 1, 1964.
Upon, consideration of the record, including the briefs submitted and all argu-
ments before me, I make the following.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER
Westinghouse Broadcasting Corporation, Inc. -(Del.), the employer of the employ-
ees represented by Respondent, is a Delaware corporation maintaining an office and
place of business in New York, New York, where it is engaged in the operation of
radio broadcasting station WINS and in performing related services.
Westinghouse annually receives in excess of $1 million for its broadcasting and
related services, of which services in excess of $50,000_ were performed in, and for
various enterprises located in, States other than the States wherein it is located.
Upon the foregoing conceded facts I conclude and find Westinghouse to be an
employer within the meaning of Section 2(6) and (7) of the Act.
II. THE STATUS OF THE RESPONDENT
The Respondent, AFTRA, is admitted to be a labor organization within the
meaning of Section 2(5) of the Act and I so conclude and find.
III. THE UNFAIR LABOR PRACTICE
A. The facts
On August 6, 1963, 5 months before the filing of the charge herein , Westinghouse
and AFTRA, the representative of a bargaining unit of Westinghouse's employees,
1 KVP Sutherland Paper Company-Sutherland Division, 143 NLRB 834
2 Infra.
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 257
entered into a collective-bargaining agreement effective until February 2, 1966,
which included-among its terms and conditions of employment the following pro-
vision designated as paragraph 7:
Nothing in this agreement shall be construed as preventing WINS from buying
package shows or other broadcast material made exclusively for use over
WINS from independent contractors providing, however, that WINS in its
contract with the packager receives a representation and warranty that the
performers on the package program, or other broadcast material, have been
paid compensation not less than the compensation which would have been pay-
able to said performers if WINS had produced the program or other broadcast
material itself.
Since its execution the contract, including paragraph 7, has admittedly at all times
been maintained in full force and effect by the parties.
B. The issue
The sole issue presented by the pleadings herein is whether paragraph 7 of the
collective-bargaining agreement between Respondent and Westinghouse violates
Section 8(e) of the Act which provides in pertinent part as follows:
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from handling,
using, selling, transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person, and any
contract or agreement entered into heretofore or hereafter containing such an
agreement shall be to such extent unenforceable and void ... .
C. Respondent's defenses
Respondent interposes several contentions by way of defense to the allegations
herein. Thus it contests the authority of the Board to determine the legality of
paragraph 7 without reference to surrounding facts and circumstances, and in sup-
port thereof offered to prove by way of stipulated facts the manner in which the
contract was implemented. Moreover, relying on the decision of the Court of
Appeals for the District of Columbia in Truck Drivers Union Local No. 413,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America v. -N.L.R.B., 334 F.2d 539 (C.A.D.C.), decided April 9, 1964, denying
enforcement -of 140 NLRB 1474, and frequently referred to as the Patton Ware-
house case, Respondent urges that the Board's earlier position is in error in that it
does not properly evaluate the motives, objectives, and purposes involved in the
execution of such a provision as is involved here.
D. Respondent's offer of'proof
In introducing his offer of proof at the hearing, counsel for AFTRA contended
that the facts surrounding the implementation of the provision in the contract were
essential to a determination of the effect of the provision itself. Thus counsel sought
to introduce the facts and circumstances of an arrangement whereby Westinghouse
entered into an agreement with Carson Helicopters pursuant to which Carson agreed
to make available to Westinghouse a helicopter and a licensed pilot to broadcast
traffic reports, special news events, and other materials requested by Westinghouse,
said pilot to be an employee of, and to be paid by, Carson. This contract does not
contain a representation and warranty that the pilot will be compensated in accord-
ance with paragraph 7 of the collective-bargaining agreement.
In Mary Feifer, d/b/a American Feed Company, 133 NLRB 214, the Board
held that in assessing the legality of a contract provision alleged to be violative of
Section 8(e) evidence of a request or attempt to enforce such a contract was imma-
terial, and found "the act of entering into, signing, executing, or making a contract,
either express or implied, prohibited by Section 8(e) sufficient to establish a viola-
tion of that section." With this the court of appeals in the Patton Warehouse case 3
8 Supra.
2 5 7-5 51-6 7-v o f 160-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is in agreement, holding that "implementation of a contract was not relevant to its
validity under § 8(e)." Accordingly, I reject as immaterial AFTRA's offer to prove
the manner in which paragraph 7 of the contract herein was implemented, and I
conclude and find to be irrelevant so much of the stipulated facts in the record as
pertained to or support such an offer.
E. Analysis and conclusions
The simple issue in this case is whether paragraph 7, in and of itself, comes
within the proscription of Section 8(e). Thus, as I have already noted, it is entirely
irrelevant how that provision was implemented or applied,4 if, in fact, it ever was.
Such being the case it would seem appropriate to test this provision against the
proscriptive statutory language without tangential discussion of matters not related
to this problem. For, as the Board has said in laying down its modus operandi for
such determinations:
With respect to contracts and agreements prohibiting an employer from the
contracting or subcontracting out of work regularly performed by his employees
we shall examine each such contract or agreement as it comes before us. The
language used, the intent of the parties, and the scope of the restriction vary
greatly in such agreements and each must meet scrutiny in terms of the
statutory restraint an its own.5 [Emphasis supplied.]
In essence, therefore, it would appear that, given the statutory and contract language
for direct comparison and the Board's established policy of ad hoc consideration of
each case, the issue really reduces itself to one primarily of grammatical construction
rather than legal interpretation.
If we paraphrase the language of paragraph 7, as quoted above, we note that a
condition, notwithstanding its affirmative appearance, has been imposed upon
WINS' (Westinghouse's) right to buy from independent contractors package shows
or other broadcast material made exclusively for use over WINS. Consequently, only
those shows and materials may be used which have been represented or warranted
to have been made by performers whose compensation from their employer, the
independent contractor referred to, was not less than it would have been had these
performers done the same work directly for, and were compensated directly by,
WINS. The obvious corollary to this is that by the condition imposed upon WINS,
any package work that was made by independent contractors whose performers
were not paid the WINS level of compensation could not be used. Thus in such
circumstances WINS would be prevented by the terms of the contract from buying
such package shows or materials. The condition so imposed upon WINS, therefore,
is one directly related to the salary compensation, not of its employees, but of
employees of another employer. And the condition goes directly to WINS' right to
purchase and use the materials thus made.
Applying the language of the statute to the condition imposed upon WINS' free
use of the package shows and other broadcast materials by paragraph 7 of the
contract it is elementary that Westinghouse and AFTRA have entered into an agree-
ment whereby Westinghouse agrees to refrain from handling or using the products
of another employer, the independent contractor supplying the package shows.
Grammatically and logically the contract language can have no other import. This
manner of agreement, by "limiting the persons with whom [Westinghouse] may do
business," 6 and by regulating and establishing "approved conditions for employees
of another employer," 7 accomplishes precisely what the language of Section 8(e)
4 America Feed Company, supra.
5Milk Drivers and Dairy Employees 'Union, Local No. 546, Teamsters, 133 NLRB 1314,
1316-17 enfd. 314 F.2d 761 (C.A. 8).
GLocal 585 of the Brotherhood of Painters, Decorators & Paper Hangers of America,
AFL-CIO (Falstaff Brewing Corp.), 144 NLRB 100.
T Meat and Highway Drivers, IBT, Local Union No. 710, 143 NLRB 1221. See also Ohio
Valley Carpenters District Council (Cardinal Industries), 136 NLRB 977, footnote 2.
AMERICAN FEDERATION OF TV AND RADIO ARTISTS 259
forbids. I accordingly find and conclude that AFTRA, by admittedly entering into
such an agreement, thereby violated Section 8(e) of the Act .8
As the unequivocal language of the contract thus squarely accords with the
equally unequivocal language of the statute I find it unnecessary to speculate upon
and discuss the many interesting but not too relevant nuances of legal theory sug-
gested by counsel . Indeed while I have fully considered the cases referred to me I
am particularly mindful of the Board 's stated determination in this field that it will
reach its decisions on a case-to-case basis.9 The ingredients of the instant case, upon
full consideration, suggest no result except the one I have reached.
I am also aware of the contrary holding of the Court of Appeals for the District
of Columbia in the Patton Warehouse case, overruling the Board on the issue pre-
sented here albeit I have relied on a portion of that case for another proposition
elsewhere in this Decision.1° With all due respect to the court, with whose decision
in this matter I do not agree , I have no alternative but to follow the course of
orderly procedure by applying established Board precedent which the Board or
Supreme Court has not reversed.ii I therefore reject as authority that portion of
the court's decision at odds with the findings and conclusions reached here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of AFTRA set forth in section III, above , having occurred in con-
nection with Westinghouse 's operation of station WINS, I conclude and find them
to have a close , intimate, and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found and concluded that AFTRA has engaged in an unfair labor prac-
tice, I shall recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
8 Paragraph 7 of the complaint alleges and Respondent's answer admits the act of execu-
tion of the objectionable contract, paragraph 9 alleges and the answer likewise admits that
since the date of its execution the parties have maintained it in full force and effect, and
paragraph 11 alleges the conduct described in both of these paragraphs to constitute
violations of Section 8(e). Although the complaint thus alleges maintenance of the contract
to be a violation I find it unnecessary to make such a finding. Consistent with my ex-
clusion of AFTRA's offer of proof, with counsel for General Counsel's objection to the
offer in the first instance, and with established Board precedence, I have already concluded
and found that implementation of such a contract need not be proven to establish a
violation of Section 8(e). American Feed Company, supra. In view of this and consistent
with It I make no finding with respect to maintenance of the contract herein insofar as
maintenance is considered synonymous with implementation, which I understand it to be.
Cf Webster's Third New International Dictionary, 1961, pages 1134, 1362.
9 Milk Drivers Local No. 546, supra, footnote 5.
19 Truck Drivers Union Local No. 413, IBT v. N.L.R.B., supra, page 4 and footnote 3.
u Iowa Beef Packers, Inc., 144 NLRB 615 enfd. 331 F.2d 176 (C.A. 8).
APPENDIX B
UNITED STATES OF AMERICA BEFORE THE
NATIONAL LABOR RELATIONS BOARD
American Federation of Television and Radio Artists (AFTRA), New York Local
and Westinghouse Broadcasting Company, Inc. (Del.). Case 2-CE-23
ORDER REOPENING RECORD AND REMANDING PROCEEDING
TO REGIONAL DIRECTOR FOR FURTHER HEARING
On September 9, 1964 , Trial Examiner Thomas F. Maher issued his Decision in
the above-entitled proceeding, finding that, by entering into a collective-bargaining
agreement containing a "work-standards" type provision, denominated therein as
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph. 7,1 Respondent had entered into an agreement in violation of Section
8(e) of the National Labor Relations Act, as amended. The matter having been
considered by the National Labor Relations Board, and in light of the Board's
acceptance of -the remand by the United States Court of Appeals for the District
of Columbia in Wilson & Co.,2 with respect to the legality of "work-standards"
provisions under Section 8(e) of the Act.
IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is,
reopened and that a further hearing be held for the purpose of receiving evidence
concerning the object of paragraph 7 of the collective-bargaining agreement between
Respondent and Westinghouse Broadcasting Company, Inc., including such evidence
as will enable the Board to determine whether each of the parties to the contract
understood and acquiesced in.a secondary object for the clause (i.e. the protection
of union members generally rather than the protection of unit members solely)
and/or whether secondary consequences within Section 8(e)'s intendment would
probably flow from the provisions of paragraph 7 in view of the economic history
and circumstances, of the industry, locality, and the parties to the contract. Such
evidence shall include evidence as to (1) the scope of the -bargaining unit and the
number of employees therein; (2) the types of work covered by the collective-
bargaining agreement; (3) the definition of the terms "package shows" and "Package
programs" as used by the parties in the contract; (4) the extent to which the Com-
pany, in the normal conduct of its business, purchases from others, for its exclusive
use, packaged shows or other broadcast materials; (5) whether and to what extent
the Respondent also represents employees outside the bargaining unit who are
engaged in the production of such packaged shows or other broadcast materials;
(6) whether and to what extent any person, firm, or corporation whose employees
are not represented by Respondent, and which packages or prepares programs,
commercial announcements, or other material's similar in kind to that broadcast by
the Company, pays to its employees compensation substantially the same as that
paid by the Company to its own employees; (7) whether employees hired by West-
inghouse Broadcasting Company to perform services covered by the Company's
collective-bargaining agreement with Respondent also performs similar services for
other producers of package shows and programs when and if not employed by the
Company; (8) the terms of the contract between the Company and Carson Heli-
copter, Inc., with respect to whether the helicopter pilot was to perform the traffic-
announcing duties himself or whether an announcer was to accompany him in the
helicopter to perform such duties; (9) the union affiliation, if any, of Carson's
pilots; (10) whether the Union represents any pilot-announcers outside of the bar-
gaining unit; (11) if the pilot performed the announcing duties, the rates paid to,
and benefits received by, the pilot from Carson as compared with the rates paid
and benefits provided by the Company to its employees in the unit; (12) whether
the Company had in its employ in the unit any person who could have performed
the complete duties of the pilot-announcer; (13) the factors, including but not
necessarily limited to economics, availability of WINS personnel, and the skills
required for traffic-announcing, involved in the decision to contract the announcing
duties to Carson in lieu of contracting for the use of a helicopter and providing a
unit employee of the Company to perform the announcing duties; and (14) any
other evidence relevant to the issue of whether the clause in question, as interpreted
and applied, was directed, in whole or in part, at a secondary object as defined
above.
IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to
the Regional Director for Region 2 for the purpose of arranging such further hear-
ing, and that said Regional Director be, and he hereby is, authorized to issue notice
thereof; and
'Paragraph 7 provides:
Nothing in this, agreement shall be construed as preventing WINS from buying
package shows or other broadcast material made exclusively for use over WINS from
independent contractors providing, however, that WINS in its contract with the
packager receives a representation and warranty that the performers on the package
program, or other broadcast material, have been paid compensation not less than the
compensation which would have been payable to said performers if WINS had pro-
duced the program or other broadcast material itself.
a Secretary's Order dated December 3, 1964, remanding 143 NLRB 1221 for further pro-
ceedings pursuant to Meat and Highway Drivers, IBT, Local Union No. 710 Y. N L.R B , 335
F.2d 709 (C.A D.C )
LOCAL 157, PLUMBERS 261
IT IS FURTHER ORDERED that , upon conclusion of such supplemental hearing, the
Trial Examiner shall prepare and serve upon the parties a Supplemental Decision
containing findings of facts upon the evidence received pursuant to the provisions
of this Order, conclusions of law, and recommendations , and that following the
service of such Supplemental Decision upon the parties, the provisions of Section
102.46 of the National Labor Relations Board's Rules and Regulations , Series 8,
as amended, shall be applicable.
Dated, Washington, D.C., April 6, 1965.
By direction of the Board: JOHN C. TRUESDALE,
Associate Executive Secretary
Local 157, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and Midwest Homes , Inc., Charging Party,
and Modern House Facilities , Inc., Party in Interest . Case 25-
CD-o3. July 28,1966
DECISION AND ORDER
On May 24 , 1966, Trial Examiner George L. Powell issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner 's Decision . Thereafter,
the Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions and briefs , and the entire record
in this case , and hereby adopts the findings , conclusions , , and recom-
mendations of the Trial Examiner.
1 The Trial Examiner's Conclusion of Law No 2 does not specify that the Respondent
threatened , restrained , and coerced Midwest and the secondary employers in attempting
to accomplish its purpose It also fails to specify the employers whose employees were in-
duced and encouraged to engage in a strike or concerted refusal in the course of their em-
ployment to perform any services We theref re modify the Trial Examiner's Conclusion
of Law No 2 to read as tollows
"2 By engaging in a strike , and by inducing and encouraging employees of Alsman and
Smith, Usrey and Sims, Roach and Roach , and Prose Electric to engage in a strike or
refusal to perform any services in the course of their employment and by threatening,
coercing , and restraining Midwest , Modern , Roach and Roach , Usrey and Sims, and Alsman
and Smith with an object in each case of forcing or requiring Midwest to assign the
plumbing work done on its prebuilt units at its plant in Carlisle, Indiana, to members of
its Union rather than members of Local 3010, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii) (D) of the Act"
We shall also revise the Order and notice in accoidance with this modified conclusion
of law.
160 NLRB No 27.