American Federation of Television and Radio Artists

National Labor Relations Board - Board Decisions

Apr 23, 1974

210 N.L.R.B. 161 (N.L.R.B. 1974)

AMERICAN FEDERATION OF TELEVIFION & RADIO. ARTISTS 161
American Federation of Television and Radio Artists
and LK Productions, Inc.
American Federation of Television and Radio Artists,
Dallas-Fort Worth Local and LK Productions, Inc.
Cases 23-CC-463 and 23-CC-467
April 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 31, 1973, Administrative Law Judge
Lloyd Buchanan issued the attached Decision in this
proceeding. On December 10, 1973, the Respondent
Unions filed exceptions and a supporting brief, and
on December 17, 1973, the General Counsel filed an
answering brief to exceptions of Respondents.
Thereafter, the Charging Party, General Counsel,
and Respondents jointly filed with the Board on
February 28, 1974, their "Motions to Withdraw
Exceptions and to Substitute Therefor Joint-Limited
Exceptions." In that document the named parties
jointly request the Board to permit the Respondents
to withdraw their exceptions to the Administrative
Law Judge's Decision and recommended Order and
to substitute therefor joint-limited exceptions re-
questing certain modifications in the recommended
Order and Notice.
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 having duly considered the matter, the
joint motions are hereby granted. Therefore, in the
absence of exceptions to the Administrative Law
Judge's findings and conclusions of law, the Board
adopts pro forma those findings and conclusions.
With respect to the Administrative Law Judge's
recommended Order and notice , the Board adopts
those recommendations , modified in accord with the
limited exceptions of the named parties.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
American Federation of Television and Radio
Artists and American Federation of Television and
Radio Artists, Dallas-Fort Worth Local, severally,
their respective officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Placing LK Productions, Inc., or any other
employer or person with whom they have no primary
210 NLRB No. 31
dispute on an "unfair list," or issuing notices to their
members , recording companies , or franchised agents
regarding such employers or persons listed on an
"unfair list," where in either event their members are
threatened with internal union discipline for per-
forming, or accepting an engagement to perform, for
any such employer or person.
(b) Threatening, coercing, or restraining LK
Productions, Inc., or any other person engaged in
commerce, where an object thereof is to force or
require any employer or other person to cease doing
business with an employer who lawfully refused to
enter into an agreement with either or both of the
Respondents.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Remove LK Productions, Inc., and Larry Kane
from their "Unfair Lists."
(b) Notify all of their contracting recording
companies and franchised agents that the Respon-
dents have removed LK Productions, Inc., and Larry
Kane, from the "Unfair Lists."
(c) Publish "Appendix A" in its national publica-
tions.
(d) Post at their offices and meeting halls copies of
the attached notice marked "Appendix A." 1 Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
their respective representatives, shall be posted by
the Respondents , immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places , including all places
where notices to their members are customarily
posted. Reasonable steps shall be taken by the
Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Furnish copies of "Appendix A" to all record-
ing companies and franchised agents (if willing) on
its mailing lists , for posting by them.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
1 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 A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT place LK Productions , Inc., or
162 1DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other employer or person with whom we have
no primary dispute on an "unfair list ," or issue
notices to our members, recording companies, or
franchised agents regarding such employer or
persons listed on an "unfair list," where in either
event our members are threatened with internal
union discipline for performing, or accepting an
engagement to perform, for any such employer or
person.
WE WILL NOT threaten, coerce, or restrain LK
Productions, Inc., or any other person engaged in
commerce, where an object thereof is to force or
require any employer or other person to cease
doing business with an employer who lawfully
refuses to enter into an agreement with either or
both of us.
WE WILL remove LK Productions, Inc., and
Larry Kane from our "Unfair Lists."
WE WILL notify all of our contracting recording
companies and franchised agents that we have
removed LK Productions, Inc., and Larry Kane,
from the "Unfair Lists."
WE WILL publish this notice in our national
publications.
AMERICAN FEDERATION
OF TELEVISION AND
RADIO ARTISTS
(Labor Organization)
Dated By
(Representative) (Title)
AMERICAN FEDERATION
OF TELEVISION AND
RADIO ARTISTS, DALLAS-
FORT WORTH LOCAL
(Labor Organization)
amended, alleges that the Respondents have violated
Section 8(b)(4)(ii)(B) of the National Labor Relations Act,
as amended , 73 Stat . 519, by threatening, restraining, and
coercing recording companies and recording artists en-
gaged in commerce as independent contractors, such
persons being secondary employers herein ; an object of
such acts and conduct being to force and require some of
such persons to cease doing business with the primary
employer herein. The answer of the Respondents, as
amended , denying the allegations of violation , sets up five
separate defenses. The salient issues here are two: Whether
the recording artists named are employees or independent
contractors; and whether placing the Charging Company
on so-called "Unfair Lists," with notices thereof to
members of the Respondents and to the recording
companies , constitutes violation of Section 8(b)(4XiiXB) of
the Act.
The case was tried before me at Houston, Texas, on
January 8 and 9, 1973. The General Counsel and counsel
for the Respondents were heard in brief oral argument at
the conclusion of the trial . Pursuant to leave granted to all
parties, briefs have been filed by the General Counsel, the
Respondents, and by the amicus curiae. I regret that other
cases and an inconvenient physical injury have delayed
issuance of this decision.
The General Counsel's position throughout was clear
and to the point. Also helpful, although necessarily limited,
was the amicus role. The efforts of the Respondents'
counsel and its witnesses, carefully presented with tenacity
and persistence, were worthy of a better cause. It should
perhaps be noted that the answer 's fifth defense argues for
too much since, if sustained, it would to a great extent
repeal the secondary boycott provisions of the Act.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS TI.:' OR) AND
CONCLUSIONS OF LAW
1. THE BUSINESS OF THE COMPANY AND THE
RESPONDENT LABOR ORGANIZATIONS
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.
DECISION
LLOYD BUCHANAN , Administrative Law Judge: The
consolidated complaint herein (issued October 27, 1972;
charges filed September 18 and October 3, 1972), as
The facts concerning the Charging Company, its status
as a Delaware corporation , the nature and extent of its
business in the production and distribution of television
and radio products, including syndicated shows and
recording artists' segments at Houston, Texas, and its
engagement in commerce within the meaning of the Act
are admitted; I so find and conclude. I also find and
conclude that, as admitted, the Respondents are severally
labor organizations within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
Under their respective constitutions , AFTRA and its
Dallas-Fort Worth Local deal with theatrical performers
and agents . At the request of the Dallas Local, the
Regional Board in Los Angeles in turn requested that
AFTRA's National Board place LK Productions and its
president, Larry Kane, on the "Unfair List."
On April 6, 1972, the Respondents requested LK to sign
the Local's "letter of adherence," which set forth the terms
AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS
and conditions for the appearance of artists on the "Larry
Kane Show" produced by LK Productions and a "side
letter agreement" as an amendment thereto . LK refused to
sign said "letter of adherence ." On July 11, 1972, AFTRA,
at the request of the Respondent Local, declared LK and
Kane "unfair" and placed them on its National Unfair
List; the Local on July 21 so informed LK; and AFTRA
similarly informed its locals and some 29,000 members, the
penalty being possible disciplinary action.
Attached hereto and marked "Appendix B" is a letter
from McCue , AFTRA's general secretary on the West
Coast and executive secretary of the Los Angeles local,
addressed to all AFTRA Franchised Agents . According to
McCue this letter was sent about August 1. Further,
according to McCue, a letter, copy of which is attached
hereto and marked "Appendix C," was sent a few days
later to record companies . (Later letters from AFTRA
refer to "Appendix B" and "Appendix C" as sent about
September 14; the first of these is itself dated August 1,
while on the second there is no date.)
Dated November 7 and attached hereto as "Appendix
D" is a letter from McCue . This was sent pursuant to
stipulation in the Federal district court to various record-
ing companies generally in the Los Angeles area (two or
three are outside that area) who are signatories to
AFTRA's Phonograph Recording Code, more formally
known as the National Code of Fair Practice for
Phonograph Recording . "Appendix E" attached hereto
was similarly sent to franchised agents. This letter does not
disown or disclaim responsibility for "Appendix C"; and
certainly cannot in view of the provisions of the AFTRA
constitution and other documents , reinforced as they are
by a booklet issued and distributed to its member by
AFTRA, of which the following is an extract:
Rogues and renegades
A list of Unfair Producers is maintained by every one
of AFTRA's Locals, and is published periodically in
AFTRA Magazine, AFTRA 's official publication,
received by every member. This list represents employ-
ers who have refused to sign the AFTRA Codes of Fair
Practice, and defaulting employers who have been
declared unfair by AFTRA. Accepting employment
from any producer on the Unfair List is a violation of
AFTRA rules . Anyone who accepts employment from
an Unfair Producer risks disciplinary action by his
Local Board which can mean fines and other penalties.
Do not support those employers who would undermine
your hard-won rights.
Such a statement of policy distributed to all members
and implemented as here is neither insignificant nor
meaningless .' To call this document raptorial would be
unfair only because equally or more significant instances
could be cited . Followed as directed and as it was here,
such a paradigm results in action proscribed by the Act.
Indeed , the belated attempt pursuant to the Federal
court stipulation to overcome the effect of the various
earlier letters itself suggests identity of interest between
I Cf. American Federation of Musicians, Local 76 (John C. Wakely), 202
NLRB No. 80.
163
AFTRA and the Local. All of this is confirmed by the
Local's constitution and by AFTRA's, and by various
documents sent by the Dallas Local to Kane, which need
not here be detailed.
Certainly, aside from all else , there was violation of
Section 8(bx4)(iiXB) between the dates when Appendixes
B and C were sent and November 7, when Appendixes D
and E went out pursuant to the Section 10(1) proceeding
stipulation. It is to be noted that acceptance by a producer,
if itself compelled, does not make unlawful compulsion
lawful.2 Nor does a finding of violation depend on a
union's success, as was the case here, in its violative efforts.
Similarly, the argument that because the Company is not
now producing shows, performers being unavailable to it,
an unlawful boycott cannot be found, would have us
condone acts which, if violative, are successful.
What is here said with respect to "Appendix D" as not
being a disclaimer applies equally to "Appendix E." While
"D" was addressed , as noted above, to signatories of the
Phonograph Recording Code, "E" was sent to the
theatrical agents in the Los Angeles area.
As if all this were not enough, the following refers to
both of the Respondents:
RULE RE PERSONS PLACED ON AFTRA'S
UNFAIR LIST, APPROVED OCTOBER 1939
A. The National Board may , from time to time, place
on the Unfair List any employer or other person who
refuses to abide by union conditions established by
AFTRA, or is otherwise unfair to organized labor.
B. No member of AFTRA may work for any
employer or other person who is on the Unfair List, nor
may any member of AFTRA accept an engagement to
work on a live or recorded broadcast originating at any
radio station that is unfair.
C. The term "employer" or "person", as used herein,
includes any sponsor, advertising agency, radio station,
network , individual contractor, producer or any other
person , firm or corporation which is unfair.
D. The Unfair List shall be binding upon all Locals of
AFTRA. When any Local Board proposes to place
employers or other persons on the Unfair List, such
proposal must be submitted to the National Board for
approval, together with a statement of the reasons
therefor.
This was neither withdrawn nor modified. Although
ancient, it indicates AFTRA's (and under its authority, its
Locals) longstanding violative conditions.
The argument that the Unions sought to advance
legitimate union interests is certainly not determinative; it
argues for too much as it would legitimatize many unlawful
2 Wooster Division of Borg- Warner Corporation, 113 NLRB 1288, 1326.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secondary boycotts. Nor do we have here a claim of
antitrust violation.3 It will profit nothing to dote on
purported analogies which may or may not be analogous.
There is no need here for a learned disquisition or for
detailed considerations to match the multiple allegations of
the eight-page complaint or the equally detailed eight-page
answer with its limited admissions and separate defenses,
documentation, and preparation being thorough on both
sides.
With the early statement at the trial that the issue
revolves around its right to maintain standards , the Union
appeared to be arguing for virtual nullification of the
secondary boycott provisions of the Act. But it was then
recognized that a basic issue is the status of so-called top
talent performers, whether employees of the Charging
Party or independent contractors.
It does not appear that any of the performers brought to
our attention, whether serving the Charging Party or not,
are its employees . The defense of maintenance of area
standards is wholly inapplicable. Indeed that defense
argues for too much since , were it to apply here, it would
seriously limit if not effectively repeal the provisions of the
statute which forbid secondary boycotts.
No more relevant are contracts entered into between the
Respondents and various employers other than the
Charging Party in this case.
The essential facts are that the Respondents have
attempted to compel the Charging Party to abide by the
terms of certain agreements to which the latter is not a
party; that they demanded such adherence ; and that,
failing to obtain this, they issued and distributed the
booklet from which we have quoted.
Even if there be indicia of an employment relationship
between performers and producers who are signatories to
the National Network Code, and by deductions for
disability insurance, social security, and taxes, these would
not establish a similar relationship vis-a-vis nonsigner
producers like the Charging Party herein. The artist is a
peripatetic performer for whom the producer provides
certain facilities while the performer is in Houston (not on
his way to Houston), but whom he does not pay or control.
Both, of course, want the artist to be at his best, the latter's
reward being in the form of advertising and record sales.
The manner or skill of performance is the performer's
stock in trade.
The Charging Party is not shown to have any control
over whether the performer sings live or lip-synched.
Certainly the facts, carefully detailed and reviewed,
determine whether an individual is an employee or an
independent contractor.4
The unfair list, prompted and supplemented by the
respective constitutions and other documents noted, is a
threat which is made specific when a person, as the
charging Company here, is placed on it.
Even if, as McCue mistakenly testified , he had never
before seen the 1939 rule, he did not deny that it is among
the rules in his possession, and it is altogether clear that the
rule is observed. It was admitted that the rule is authentic
and that it declares "in effect ... Do not work for an
3 Cf. Connell Construction Company, Inc. v . Plumbers Local Union No.
100, 483 F.2d 1154 (C.A. 5, 1973).
unfair producer." It is one of some 20 rules adopted by the
national board in the last four decades.
As did McCue at first , Wolff, AFTRA's national
executive secretary and chief executive officer , testified
that he had never before seen the rule, which McCue had
found in the files, had referred to in his pretrial affidavit,
and had indeed relied on to support use of the unfair list.
We have McCue's testimony that such rules are not self-
implementing and, were further action necessary , he would
see to it, as West CoastRegional Director , that further steps
were taken.
It was not shown that the rule as maintained was itself
circulated among AFTRA members . But we have noted
the booklet or so-called handbook published under Wolff 's
direction a few years ago to help "indoctrinate" new
members. It was admitted that this correctly states what a
warning notice to an artist entails.
Beyond the generalities concerning the maintenance of
an "Unfair List," the fact is that the charging Company
was placed on such list and notice of such placement was
given to all AFTRA members as well as to approximately
140 franchised agents in the West Coast area who represent
performing artists and to various recording companies
early in August 1972.
Despite the various documents cited , it is argued that the
recording companies and performers were neither threat-
ened nor coerced . They were merely cautioned (!) against
doing business with the charging party and other "Unfair
Producers ," as by the "Unfair List" and the Unions'
various rules and notices.
The Unions' brief is a fine example of careful effort to
maintain an invalid position . We can enjoy the words of
one who has taken deep draughts at the Pierian spring. But
even were nectar added , we would still seek a more
substantial ambrosia or, reverting to an earlier age, manna
for support.
Not to slight the efforts of counsel , it may be noted that,
aside from the issue of violation by the acts , )successful or
not, of the Respondents, the charging Company has
suffered deleterious effects by the refusal of at least one
artist (Oliver) to perform on its shows. Although we were
regaled at the trial with details in this connection, these
need not be set forth here. Nor need we pursue the
suggestion, not supported , that the charging Company's
failure to continue to produce shows since the end of
October 1971 was due to reasons other than those which
concern us.
The proclivity to violate , warranting a broad order
herein, is sufficiently established by the general and
widespread provisions and notices cited . The responsibility
of the National Union is established by its constitution, the
authority of McCue as its representative on the West
Coast, and its exercise of authority and supervision
throughout the country; by the fact that the "Unfair List"
distributed by the National includes employers involved in
unresolved disputes with the National or a local union;
further, beyond notifying its locals and their members of
those on the list, the National , we were told, acts to see that
the locals notify their members . (Notification from the
4 United Insures ce Company of America, 154 NLRB 38, affd. 390 U.S.
254.
AMERICAN FEDERATION OF TELEVISION & RADIOS ARTISTS 165
National down to the members, and affecting all who are
"unfair," whether recording companies, franchised agents,
performers , or of course producers countrywide is thor-
ough.) Indeed , "all of the administrative decisions come
from the National organization running through the
AFTRA Local office."5 The National's activities and
supervision are so close that the Local's executive secretary
is paid by the National.
[Recommended Order omitted from publication.]
a Cf. American Federation of Musicians (Harrah 's Club, et all 195 NLRB
1104.
APPENDIX B
AMERICAN FEDERATION OF TELEVISION AND
RADIO ARTISTS
Affiliated with A. F. of L., C.I.O.
Los Angeles Local
1717 North Highland Avenue
Hollywood, Calif. 90028
461-8111
NOTICE
August 1, 1972
All AFTRA Franchised Agents are advised that Larry
Kane Productions, Inc. of Houston, Texas and Larry Kane
as an individual have been placed on the AFTRA
"UNFAIR" list. Any AFTRA member who appears on the
Larry Kane Show will be subject to charges of having
performed services on behalf of an Unfair Producer with
such action being detrimental to the welfare of AFTRA
and its membership.
Please caution your clients against appearing on The Larry
Kane Show and call AFTRA if you have any requests to
place talent on that syndicated show originating in
ouston.
APPENDIX C
Claude L. McCue
Executive Secretary
AMERICAN FEDERATION OF TELEVISION AND
RADIO ARTISTS
Affiliated with A. F. of L., C.I.O.
Los Angeles Local
1717 North Highland Avenue
Hollywood, Calif. 90028
461-8111
NOTICE
AFTRA Code signatories are advised that Larry Kane
Productions , Inc. of Houston , Texas and Larry Kane as an
individual have been placed on the AFTRA "UNFAIR"
list. Any AFTRA member who appears on the Larry Kane
Show will be subject to charges of having performed
services on behalf of an Unfair Producer with such action
being detrimental to the welfare of AFTRA and its
membership.
Please caution your recording artists against appearing on
The Larry Kane Show and call AFTRA if you have any
requests to place talent on that syndicated show originating
in Houston.
APPENDIX D
Claude L. McCue
Executive Secretary
AMERICAN FEDERATION OF TELEVISION AND
RADIO ARTISTS
Los Angeles Local
1717 North Highland Avenue
Hollywood, Calif. 90028
461-8111
Gentlemen:
November 7, 1972
With reference to notice sent you on or about September
14, 1972 regarding LK Productions and Larry Kane, as an
individual, having been placed on the AFTRA unfair list,
this is notice to you that AFTRA will not do anything to
interfere with the employment of any AFTRA artist on the
'"Larry Kane Show" and will not take any disciplinary
action against any AFTRA member who accepts such
employment on the "Larry Kane Show" during the
pendency of the matters involved in NLRB Cases Nos.
23-CC-463 and 23-CC-467.
CLM:dac
APPENDIX E
Very truly yours,
Claude L. McCue
Executive Secretary
AMERICAN FEDERATION OF TELEVISION AND
RADIO ARTISTS
Los Angeles Local
1717 North Highland Avenue
Hollywood, Calif. 90028
461-8111
Gentlemen:
November 7, 1972
With reference to notice sent you on or about September
14, 1972 regarding LK Productions and Larry Kane, as an
individual , having been placed on the AFTRA unfair list,
this is notice to you that AFTRA will not do anything to,
interfere with the employment of any AFTRA artist on the
"Larry Kane Show" and will not take disciplinary action
against any AFTRA member who accepts such employ-
ment on the "Larry Kane Show" during the pendency of
the matters involved in NLRB Cases Nos. 23-CC-463 and
23-CC-467.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Please inform your artists that no compensation is paid for Very truly yours,
recording artists appearing or performing on the "Larry
Kane Show" because there is no AFTRA code or contract Claude L. McCue
in effect covering that program. Executive Secretary
CLM:dac