American Federation Of Television And Radio Artists

National Labor Relations Board - Board Decisions

Jan 13, 1976

222 N.L.R.B. 197 (N.L.R.B. 1976)

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 197
American Federation of Television and Radio Artists,
AFL-CIO and William F. Buckley , Jr., and M.
Stanton Evans, Petitioners.'
January 13, 1976
DECISION AND ORDER DISMISSING
PETITION FOR DECLARATORY ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS, AND PENELLO
This is a petition filed on March 18, 1975, by Wil-
liam F. Buckley, Jr., and M. Stanton Evans, herein
called Petitioners, for a declaratory order pursuant to
5 U.S.C. §554(e). Thereafter, on April 21, 1975,
American Federation of Television and Radio Art-
ists, AFL-CIO, herein called AFTRA, filed a state-
ment in response to the petition and on May 14,
1975, the Petitioners filed a memorandum in reply to
AFTRA's statement , and attached an affidavit. On
May 19, 1975, AFTRA submitted a rebuttal memo-
randum to which, on June 9, 1975, the Petitioners
filed a response.
On November 5, 1975, the Board issued a notice of
hearing advising the parties that oral argument
would be held in the above-entitled proceeding. Pur-
suant to permission granted by the Board, the Acting
General Counsel on November 12, 1975, filed a brief
of the Acting General Counsel as amicus curiae. The
Petitioners on November 17, 1975, filed a memoran-
dum in opposition to brief of General Counsel with
attached affidavits and a Notice of Motion seeking
to amend the prayer of relief.
On November 17, 1975, the Petitioners and Re-
spondent argued orally before the full Board.2
In pertinent part, the submissions of the parties,
their oral- argument, and the Acting General
Counsel's brief allege as follows:
1. Petitioner William F. Buckley, Jr., is the princi-
pal participant on 'a national television show called
"Firing Line," while M. Stanton Evans is a national
news commentator on a radio program entitled
"Spectrum." Both- are spokesmen for the conserva-
tive point of view and are against any form of com-
pulsory unionism. In order to participate in their re-
spective television and radio programs, they
negotiate employment contracts with their respective
i Petition under 5 U S .C §554(e) which provides "The agency , with like
effect as in the case of other orders , and in its sound discretion , may issue a
declaratory order to determine a controversy or remove uncertainty "
2 AFTRA' s Brief in Opposition for Respondent filed in the litigation be-
fore the Supreme Court in Cases 74-313 and 74-314 (see fn 6, infra), sub-
mitted to the Board after oral argument , has been considered but not the
two letters submitted therewith or the subsequent correspondence related
thereto
broadcasting companies.
2. Over the years, AFTRA, a labor organization,
has negotiated with the broadcasting companies col-
lective-bargaining agreements known as Codes of
Fair Practice which run over 3 years and are renewed
periodically for 3 years.3 Both the television and ra-
dio codes contain a union-shop provision obligating
the broadcasting companies to hire AFTRA mem-
bers in good standing or individuals who, within 30
days of employment, become union members and
maintain their membership in good standing .4
3. Section 1 of article XVIII of the AFTRA con-
stitution provides, in substance, that AFTRA may
discipline members if they fail or refuse to comply
with its constitution, bylaws, and orders.'
4. The Petitioners assert that the union-shop pro-
vision requiring membership in good standing in
AFTRA, together with the discipline provision of
AFTRA's constitution, subject them to union disci-
plinary action, which may result in their temporary
or permanent exclusion from televison and radio
should they express or otherwise conduct themselves
contrary to the provisions of AFTRA's constitution.
According to the Petitioners, broadcasting compa-
nies construe such membership to mean what it ordi-
narily does mean and historically has meant in the
entertainment industry, to wit that performers must
be "full fledged members" in order to be employed.
5. As indicated above, both Petitioners are against
any form of compulsory unionism and are against
being members of AFTRA or subject to its orders
and control over their employment opportunities.
However, both Petitioners allege that, in order to
maintain their television and radio careers and under
the duress of the codes and various threats by
AFTRA and broadcasting companies that they
could not be employed unless they were members of
3 Although the record herein refers only to the 1969-72 codes, the parties,
in oral argument , admitted that a current code for 1972-1975 exists.
4 Sec 84 of the TV code and sec 57 of the radio code contain a clause
entitled "Union Shop" which provides "It is agreed that during the term of
this agreement , we will employ and maintain in our employment only such
persons covered by this agreement as are members of the American Federa-
tion of Television and Radio Artists in good standing or as shall make
application for membership on the thirtieth (30th ) day following the begin-
ning of employment hereunder or the date of execution of this agreement,
whichever is the later , and thereafter maintain such membership in good
standing as a condition of employment "
Art XVIII , sec 1, entitled "Discipline," reads as follows "[A]ny mem-
ber who shall be guilty of an act, omission , or conduct which in the opinion
of the Board is prejudicial to the welfare of the Association , or any of its
Locals, or of any of its members , as such, or any member who shall fail to
observe any of the requirements of the Constitution , or of any By-Laws,
rules , regulations or orders lawfully issued by the Association , any Local or
any duly authorized committee or agent of said Association or Local or any
member who shall in any way be indebted to the Association or any Local
thereof , may, in the discretion of the Board, be either ' fined, censured, sus-
pended or expelled from membership The Board may discipline a member
for each and every offense or violation, and no member shall be exempt
from disciplinary action because of any previous action of the Board upon
some other or different charge "
222 NLRB No. 34
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFTRA, they have tendered, under protest and
against their, will, the initiation fees and periodic dues
necessary to become members and maintain their
membership in good standing in AFTRA and its ap-
propriate locals.
6. Thereafter, the Petitioners instituted litigation
in the Federal courts alleging that the codes and
AFTRA's constitution constituted a prior restraint
on their freedom of speech rights under the first
amendment as commentators and news analysts. Al-
though the district court basically -agreed with the
Petitioners, the-final result of this litigation, after the
Supreme Court denied certiorari and rehearing, was
that, as the Second Circuit Court concluded, the ju-
risdiction of the Board preempted that of the Federal
courts because the acts. alleged were arguably unfair
labor, practices under the National Labor Relations
Act-.6 The Court of Appeals for the Second Circuit
advised the Petitioners that they had selected the
wrong forum and should take their cause to the
Board, an administrative agency capable of granting
declaratory relief, if the circumstances warranted,
citing 5 U.S.C. §554(e)7 As a result, the instant peti-
tion was filed seeking the type of relief that is nor-
mally granted in a regular unfair labor practice pro-
ceeding brought before this Agency.'
7. The Petitioners contend, in effect, that the
membership requirement in the codes, construed in
the entertainment industry as "full fledged" member-
ship, threatens their access to television and radio in
violation of their rights under Section 7 of the Act.
They have not filed any unfair labor practice charges
because, in their view, the Board's procedures are
useless in view of their employment for short periods
of time and their fear of being deprived of employ-
ment if they resigned AFTRA membership and filed
unfair labor practice charges. However, they are will-
ing to participate in a hearing before an Administra-
tive Law Judge or the Board itself in which all their
unfair labor practice allegations can be litigated.
8. AFTRA contends, inter alia, that there is no
warrant, under the Board's Rules and Regulations 9
6 Evans v American Federation of Television and Radio Artists, 354 F Supp
823 (1973); Buckley v. American Federation of Television and Radio Artists,
496 F.2d 305 (C.A. 2, 1974), cert. denied 419 U S 1093 (1974), petition for
rehearing denied 420 U.S 956 (Feb 24, 1975).
7 Buckley v. American Federation of Television and Radio Artists, supra at
313.
S In its notice of motion , the Petitioners amended their prayer of relief to
have the Board enter an order (1) declaring as null and void the union-shop
provisions in sec. 84 of the TV code and sec 57 of the radio code, (2)
declaring that the Petitioners , provided they have paid the uniformly re-
quired periodic dues and initiation fees, may be employed by any network
or broadcasting company signatory to the codes without interference or
abjection by AFTRA on the ground of lack of membership , and (3) or-
dering AFTRA to give notice of this order to all signatory networks and
broadcasting companies , to all its members , and to all employees in the
collective-bargaming unit on whose behalf it bargains.
and by virtue of Section 3(d) of the Act granting the
General Counsel final authority with respect to un-
fair labor practice charges and complaints,10- for the
Petitioners to bypass and ignore the Board's custom-
ary unfair labor practice procedures by filing the in-
stant petition under 5 U.S.C. §544(e) instead of filing
unfair labor practice charges against- AFTRA and
the contractually employing companies. According-
ly, it contends that the Board lacks the power and
jurisdiction to issue a declaratory order under 5 U.S.
C. §554(e). Further, AFTRA argues that a declarato-
ry order is also inappropriate because there is no
controversy or uncertainty to be resolved by a de-
claratory order since the law, as to the respective
tights of the parties, is clear; i.e., all that AFTRA
may require under a union-security clause validly au-
thorized under Section 8(a)(3) of the Act is the pay-
ment of periodic dues and initiation fees uniformly
required of all members re "financial core member-
ship." Accordingly, it urges that the petition herein
must be dismissed.
9. In his amicus curiae brief, the Acting General
Counsel, like AFTRA, argues that the declaratory
order procedure is improper and unwarranted be-
cause of the General Counsel's Section 3(d) final au-
thority and because, under the Board's rules and de-
cisions, declaratory orders and advisory opinions
have been confined to questions concerning the
Board's discretionary jurisdictional standards. In any
event, he urges that the-Board not exercise its discre-
tion under 5 U.S.C. §554(e) to issue a declaratory
order because of the disputed questions of facts con-
cerning the legal issue.
10. At the oral argument, counsel for AFTRA re-
iterated the position it took during the course of the
litigation in the Federal courts and in the instant pro-
ceeding to the effect that AFTRA could not require
"full fledged membership" from individuals, who,
under the union-security provisions of the codes, pay
the uniformly required dues and fees; i.e., it could
only require "financial core membership: In addi-
tion he offered to have AFTRA set forth this legal
position in writing to anyone requesting it, including
the Petitioners. Counsel for the Petitioners admitted
that the law was clear that the Petitioners did not
have to become members of AFTRA but merely had
to pay the uniform dues and fees. However, he ar-
gued, in effect, that the industry practice was to hire
only full-fledged AFTRA members rather than "fi-
g Subpart H of the Board's Rules and Regulations , Secs 102 98 to 102.104
deal with advisory opinions and Secs. 102 105 to 102 110 deal with declara-
tory orders and both involve only the Board 's discretionary monetary juns-
dictional standards
10 Sec 3(d) of the Act provides in part as follows : "[The General Counsel]
shall have final authority, on behalf of the Board, in respect of the investiga-
tion of charges and issuance of complaints under section 10, and in respect
of the prosecution of such complaints before the board "
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 199
nancial core members" who had made the appropri-
ate dues and fees payments. He conceded that nei-
ther of the Petitioners had requested AFTRA or the
employing broadcasting companies to state, in writ-
ing, that the payment of the uniformly required dues
and initiation fees would satisfy the requirements of
the union-shop provisions of the TV and radio codes
without any requirement of full-fledged membership.
The Petitioners thus have never actually tested
AFTRA's policy in this respect.
On the basis of the foregoing, the Board is of the
opinion-that the instant petition filed under 5. U.S.C.
§554(e) to issue a declaratory order must be dis-
missed.ii With respect to the petition herein, there is
no dispute, and the law is admittedly clear, that a
union, pursuant to a union-security clause validly au-
thorized under Section 8(a)(3) of the Act,12 can only
require the payment of periodic dues and initiation
fees after the statutory 30-day period and cannot, un-
der-any circumstances, require "full fledged member-
ship" or any other, type of membership;" and a ter-
mination of employment for reasons other than
nonpayment of such dues and fees would be a viola-
tion of the Act. Likewise, a refusal to employ an indi-
vidual who refused to become a "member" of
AFTRA or any other union would also be a violation
of the Act.14 Therefore, there is no justiciable issue to
11 No employer is a party herein and no charge has been filed against any
employer or AFTRA
1 In Evans v. American Federation of Television and Radio Artists, supra,
the Federal district court, at 829, noted that "[t]his provision [sec 84 of the
code] . . . is specifically authorized by by Section 8(a)(3) of the National
Labor Relations Act.-Sec. 8(a)(3) provides, in relevant part
It shall be an unfair labor practice for an employer-(3) by discrimi-
nation in regard to hire or tenure of employment or any term or condi-_
tion of employment to encourage or discourage membership in any
labor organization. Provider, That nothing in this Act, or in any other
statute of the United States, shall preclude an employer from making
an agreement with a labor organization ..to require as a condition of
employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such agree-
ment, whichever is the later Provided further, That no employer
shall justify any discrimination against an employee for nonmember-
ship in a labor organization. . (B) if he has reasonable grounds for
believing that membership was denied or terminated for reasons other
than the failure of'the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retain-
ing membership
13 N L.R B v General Motors Corporation, 373 U.S. 734, 743 (1963), citing
Union Starch & Refining Co, v N L R B, 186 F 2d 1008 (C A. 7, 1951), enfg.
87 NLRB 779 (1949), cert denied 343 U S 815 (1951)
14 Chairman Murphy firmly believes that-without regard to the provi-
sions of the National Labor Relations Act-if "membership" in AFTRA or
any other union were a requirement for employment in the newspaper
broadcasting industry, it would infringe on the first amendment and hence
would be unconstitutional Cf, the dissenting opinion of Mr. Justice Doug-
las in Buckley et al v American Federation of Television & Radio Artists, 419
U S. 1093 (1975).
Chairman Murphy notes that the claims summarized by Member Fan-
be decided or uncertainty to be dispelled by the is-
suance of a declaratory order.
In these circumstances, and without considering
the other contentions of the parties including that
respecting the power and jurisdiction of the Board
to issue a declaratory order, the lack of a justiciable
issue and absence of uncertainty as to the legal issue
presented warrants dismissal of the instant petition.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, denied.
MEMBER FANNING,, concurring:
r join my colleagues in dismissing'the petition for
declaratory order. I do so not because AFTRA 'and
Petitioners are in agreement as to what the law per-
mits with respect to clauses conditioning employ-
ment on union membership,"' but because I believe
the controversy between them has been brought to us
for decision outside the procedure prescribed in Sec-
tions 3(d) and 10(b) of the Act.16 This jurisdictional
defect is not overcome by Petitioners' invocation of
section 5(e) of the Administrative Procedure Act [5
U.S.C. §554(e)]. That section merely enlarges the
type of relief an agency may provide by authorizing
the agency in the exercise of its sound discretion to
issue declaratory orders in those matters it has juris-
diction to decide in the first place. It neither enlarges
the-agency's subject matter jurisdiction nor sets aside
the statutory procedural requirements for invoking
the agency's remedial powers.
Accordingly, as the petition in this matter seeks to
circumvent the procedural requirements of Sections
3(d) and 10(b) by seeking a determination as to
events which are time barred by Section 10(b) and
have' not been" investigated and made subject of a
complaint by the General Counsel as required by
Section 3(d), it must be dismissed.
ning in In 15 relate to events alleged to have occurred in 1971 or earlier.
Were it established that such demands were currently being made, Chair-
man Murphy might well find it appropriate to grant the petition herein
15 The thrust of the petition is that in 1971 or earlier Respondent AFTRA
or certain broadcasting companies threatened one or both Petitioners with
loss of employment if Petitioners did not maintain actual membership in
AFTRA thus demonstrating that AFTRA was a party to an arrangement,
understanding , or practice with the broadcasting companies pursuant to
which the companies would deny employment to nonmembers of AFTRA
even though such nonmembers tendered payment of initiation fees and
membership dues.
16 Sec 3(d) places in the General Counsel final authority over the investi-
gation of charges and issuance of complaints based on such, charges. Sec
I0(b) precludes issuance of complaints based on events occurring more than
6 months prior to the filing of a charge on which the complaint is based.