American Guild of Variety Artists

National Labor Relations Board - Board Decisions

Mar 20, 1967

163 N.L.R.B. 457 (N.L.R.B. 1967)

AMERICAN GUILD OF VARIETY ARTISTS
the jurisdictional dispute by deciding that employees
represented by the Chemical Workers are entitled to
the work in dispute.9 Since there is a strong
probability.. that similar disputes involving
Respondent Union may occur in the future, we hold
that the determination in this case applies not only to
the job in which the dispute arose but to all similar
work done or to be done in Eugene, Oregon, and
surrounding counties, within the jurisdictional area
of the Plumbers, by Northwest Natural Gas
Company.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of
Dispute:
1. Employees of Northwest Natural Gas
Company, who are represented by International
Chemical Workers Union, Local No. 133, are
entitled to perform all_service line installation work
from existing mains to customers' premises in
Eugene, Oregon, and surrounding counties, within
the territorial jurisdiction of United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local No. 481, AFL-CIO.
2. United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Local
No. 481, AFL-CIO, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Company to assign the above work to
employees who are represented by it.
3. Within 10 days from the date of this Decision
and Determination , the Plumbers shall notify the
Officer-in-Charge for Region 36, in writing, whether
or not it will refrain from forcing or requiring the
Company, by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the work in dispute in a manner
inconsistent with the above determination.
9 Although the Company urges the Board to extend its
determination to the installation of all gas piping throughout its
service area in Oregon and Washington, we limit our
determination and award to the work actually in dispute in this
proceeding, namely, the installation of service lines from existing
mains.
457
American Guild of Variety Artists, AFL-CIO
and Al Fast and Fontainebleau Hotel
Corporation , d/b/a Fontainebleau Hotel
Americana Hotel , Morris Lansburgh , et al.,
d/b/a Deauville Hotel , Forty-five, Twenty-
five , Inc., d/b/a Eden Roe Hotel , Carillon
Hotel, Parties to the Contract ' (Minimum
Basic Agreement) and Gold Coast Theatrical
Agency, Inc., Jerry Grant Agency, Parties to
the Contract (AGVA Franchise Agreement)
American Guild of Variety Artists, AFL-CIO
and Clayton I. Hart and Al Fast
American Guild of Variety Artists, AFL-CIO
and Al Fast . Cases 12-CB-647, 12-CA-2393-1
and 2393-2, and 12-CA-3327.
March 20,1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On August 18, 1966, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging 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. In
addition, the Trial Examiner found that Respondent
had not engaged in other unfair labor practices
alleged and recommended that the complaints be
dismissed as to those allegations. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Respondent filed cross-exceptions to the Trial
Examiner's Decision together with a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
Pursuant to stipulation of the parties and the Trial Examiner's
recommendation thereon, we have stricken from the caption four
other employers (Golden Triangle Restaurant , Inc.; Tampa
International Inn, Inc.; Hawaiian Village Restaurant; and The
Outrigger Inn of St. Petersburg, Inc., d/b/a Outrigger Inn) for lack
of any evidence that they meet the Board's discretionary
standards for asserting jurisdiction. Carolina Supplies and
Cement Co., 122 NLRB 88, 89. Furthermore, it has not been
established that any of these employers are, in fact, parties to the
contract.
163 NLRB No. 48
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
powers in connection with this case to a three-
member panel.
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, cross-
exceptions, briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the following modifications:
We agree with the Trial Examiner, for the reasons
stated by him, that Respondent, by executing,
maintaining, and giving effect to the collective-
bargaining agreements described infra, attempted,
and is attempting, to cause employers to
discriminate against employees in violation of
Section 8(a)(3) of the Act, thereby violating Section
8(b)(2) and (1)(A) of the Act.
In addition, the Trial Examiner found that
Respondent further violated Section 8(b)(2) and
(1)(A) of the Act by denying membership in AGVA to
Clayton Hart and Al Fast while it maintained the
unlawful closed-shop agreements;2 that these
individuals were thereby precluded from the
possibility of obtaining employment in the variety
entertainment industry and are, therefore, entitled
to backpay. However, before ordering backpay
against a labor organization, the Board has
consistently required evidence to support a finding
that the respondent union has, in fact, caused an
employer to discriminate against an employee in
violation of Section 8(a)(3).3 The record herein
presents no credited evidence of probative value
which would establish that either Hart or Fast ever
applied for, and was denied, available employment
in the variety entertainment field because of his lack
of membership in Respondent. In the absence of
such evidence, we cannot conclude that the
requisite showing of causation has been made.
Accordingly, we do not adopt the Trial Examiner's
Recommended Order with respect to backpay.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, American Guild of Variety Artists,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
A. The Trial Examiner's Recommended Order is
hereby modified:
1. Insert in paragraph 1(a), in the phrase "unless
such agreement has been authorized," between the
words "agreement" and "has," the words "where
lawful."
2. Substitute in paragraph 1(b), in the phrases "by
causing employers" and "by causing promoters,"
the words "attempting to cause" for the word
"causing."
3. Delete paragraph 2(a) thereof, and reletter the
remaining paragraphs accordingly.
B. The Appendix attached to the Trial
Examiner's Decision is hereby modified:
1. Insert in the first paragraph, in the phrase
"unless such agreement has been authorized,"
between the words "agreement" and "has," the
words "where lawful."
2. Substitute in the second paragraph, in the
phrase "by causing employers" and "by causing
promoters," the words "attempting to cause" for the
word "causing."
3. Insert in the third paragraph, between the
words "except" and "to," the words "where lawful."
4. Delete the fourth paragraph of the Appendix.
2 We find it unnecessary to pass on the Trial Examiner's
finding, to which no exception was taken, that the denial of union
membership herein violated Section 8(b)(2) and (1)(A) of the Act
since, in any event , it would not affect the scope of our remedial
order in view of our conclusion concerning backpay
' International Association of Heat and Frost Insulators and
Asbestos Workers, Local #84, AFL-CIO (The Edward R. Hart
Company), 146 NLRB 660, 662, cf Local Union No 2, Plumbers
(Astrove Plumbing & Heating Corp), 152 NLRB 1093
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Tampa, Florida, on the days of March 7
to 10, 21, and 22, 1966, on the several complaints of the
General Counsel, as amended, and the answers of
American Guild of Variety Artists, AFL-CIO, herein
referred to as either the Respondent or AGVA. i The issues
litigated were whether the Respondent, as an employer,
violated Section 8(a)(1), and as a labor organization caused
other named employers, engaged in commerce, to
discriminate against employees in violation of Section
8(a)(3), thereby engaging in conduct violative of Section
8(b)(2) and (1)(A) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, 61 Stat.
136, herein called the Act. At the close of the hearing
Respondent presented oral argument, and thereafter
briefs were filed by the General Counsel and Respondent.
Said argument and briefs have been carefully considered.
' A charge was filed by Clayton I Hart . an individual, on
June 28, 1962, in Case 12-CA-2393- 1, and an amended charge
was filed on July 17, 1963 A charge was filed by Al Fast, an
individual, on June 28 , 1962, in Case 12-CA-2393-2, an amended
charge was filed on October 8, 1962, and a second amended
charge was filed on July 12, 1963 A consolidated complaint, in
Cases 12-CA-2393- 1 and -2, was issued on November 16, 1962,
and an amended complaint was issued on July 15, 1963
Meanwhile , on October 8, 1962 , Al Fast , an individual, filed a
charge , in Case 12-CB-647, and an amended charge was filed on
July 15, 1963 A complaint , in Case 12-CB-647, was issued on
July 16, 1963 , with an order consolidating the cases for the
purpose of hearing
A charge was filed by Al Fast, an individual , in Case
12-CA-3327, on September 2, 1965, and a complaint and order
consolidating the cases for hearing was issued on January 10,
1966
AMERICAN GUILD OF VARIETY ARTISTS 459
During the hearing the Trial Examiner reserved decision
on a number of motions, including motions by Respondent
for dismissal, and a motion by General Counsel for
judgment on the pleadings. These motions are disposed of
in accordance with my findings and conclusions, herein
set forth.
Upon the entire record2 and from my observation of the
witness I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT, AND OTHER
EMPLOYERS
Pursuant to a stipulation executed on October 28, 1963,
and filed on October 31, 1963, the parties herein submitted
the issue of jurisdiction directly to the Board.
On November 18, 1965, the Board rejected, in toto,
AGVA contentions : (1) that the Board should decline
jurisdiction in the amusement industry where, as here, 96
percent of the employment is on a casual or temporary
basis; (2) the Board should not assert jurisdiction over
variety artists when engaged by employers , such as the
hotels herein , which are otherwise subject to the Board's
jurisdiction ; and (3 ) the Board should decline jurisdiction
over AGVA as an employer under the Act , as its function
relates solely to representing persons working as variety
entertainers.
The Board found , inter alia , that it is well settled that a
labor organization , when acting as an employer vis-a-vts its
own employees , is an employer within the meaning of
Section 2(2) of the Act, and subject to the Board's
Jurisdiction . The Board found that it would effectuate the
policies of the Act to assert jurisdiction over the
Respondent herein , both in its capacity as an employer
and in its role as a labor organization.3
Under the stipulation of facts, the parties agreed the
hotels named meet the Board ' s standards for asserting
jurisdiction over hotels, i.e., the annual gross exceeds
$500,000 , at least 75 percent of the rooms are occupied for
a period less than 30 days, and there is direct inflow in
amounts in excess of de mintmis. The Board found no
contention that it lacked jurisdiction over the hotels
named.4
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed that American Guild of Variety Artists,
AFL-CIO, herein called Respondent or AGVA, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
tA. The Issues
The principal issues raised by the complaints and
answers, as amended, and consolidated for hearing, and
litigated at the hearing, are: (1) whether the discharge of
Ernie Fast, during February 1962, and the failure of
Respondent to reinstate him on or prior to June 15, 1964;
or the discharge of Clayton I. Hart, on April 16, 1962, and
the failure thereafter to reinstate him to his former or
substantially equivalent position; or the discharge of Al
Fast, on April 16, 1962, and the failure to recall and
reinstate him on or prior to June 22, 1964; or the discharge
of Al Fast on June 12, 1965; were, in each or any instance,
because said employee or employees were engaged in
protected concerted activities, thus violative of the
provisions of Section 8(a)(1) of the Act; or (2) whether
AGVA, as more fully set forth in the complaint, engaged in
activities in contravention of the provisions of Section
8(b)(2) and (1)(A) of the Act, by entering into, maintaining,
and giving effect to collective-bargaining agreements,
known as minimum basic agreements, on and after
April 8, 1962, with employers engaged in commerce,
within the meaning of the Act, and entering into,
maintaining, and giving effect to franchise agreements
with individual promoters, bookers, and agents, on and
after April 8, 1962, and AGVA standard form of artists
engagement contracts, in each instance requiring
membership in AGVA as a condition of employment, and
containing other closed-shop provisions, thereby causing
and attempting to cause said employers to discriminate
against employees in violation of the provisions of Section
8(a)(3) of the Act; or (3) whether AGVA on or about
May 30, 1962, suspended the membership of Ernie Fast
and, at all times thereafter until October 1962, failed and
refused to reinstate him to membership, simultaneously
maintaining and giving effect to the minimum basic
agreement and franchise agreements, thereby causing
employers engaged in commerce within the meaning of the
Act to discriminate against him in violation of Section
8(a)(3) and restraining and coercing him in the exercise of
rights guaranteed in Section 7 of the Act, thus engaging in
unfair labor practices proscribed by Section 8(b)(2) and
(1)(A) of the Act; or (4) whether on April 16, 1962, AGVA
terminated the membership of Clayton I. Hart, and at all
times thereafter failed and refused to reinstate him to
membership, simultaneously maintaining and giving effect
to the minimum basic agreement and franchise
agreements, thereby causing employers engaged in
commerce, within the meaning of the Act, to discriminate
against him in violation of Section 8(a)(3) and restraining
and coercing him in the exercise of rights guaranteed in
Section 7 of the Act, thus engaging in unfair labor
practices proscribed by Section 8(b)(2) and (1)(A) of the
Act; or (5) whether on April 16, 1962, AGVA terminated
the membership of A] Fast, and at all times thereafter until_
June 22, 1964, failed and refused to reinstate him _ to
membership, simultaneously maintaining and giving effect
to the minimum basic agreement and franchise
agreements, thereby causing employers engaged in
commerce, within the meaning of the Act, to discriminate
against him in violation of Section 8(a)(3) and restraining
and coercing him in the exercise of rights guaranteed in
Section 7 of the Act, thus engaging in unfair labor
practices proscribed by Section 8(b)(2) and (1)(A) of the
Act
Respondent, by answer, in Case 12-CA-2393-1 and -2
2 General Counsel filed a motion to correct the record, on
April 19, 1966, listing approximately 90 errors or omissions No
opposition to said motion was filed Said motion is granted, except
for the proposed corrections at page 267, lines 2 and 4, page 311,
line 17, and page 641, line 8 1 have a clear memory of the
accuracy of the statement of the witness reflected on page 267,
even though the pronouns used are inaccurate The error on page
641 was corrected at page 643, line 9 and is not an error in
transcription
On July 21, 1966, I issued an order to show cause why an
additional 13 corrections, including the correction of page 311,
line 17, should not be ordered No response or objection has been
received The record is corrected accordingly
3 155 NLRB 1020
" However, for other reasons set forth infra, "Concluding
Findings," it is not established that three of those named as
Parties to the Contract are so in fact
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied the commission of any unfair labor practice, and
affirmatively asserted the portion of the charge relating to
the discharge of Ernie Fast was filed more than 6 months
after said discharge . Respondent , by answer , in Case
12-CB-647, denied the commission of any unfair labor
practice , and affirmatively asserted that the charge, as
amended on July 12, 1963, in reference to denials of
membership , was filed more than 6 months after the
alleged event . Respondent , by answer , denied the
commission of any unfair labor practice in Case
12-CA-3327.
B. Background
Except as noted, there is no dispute, in the transcript, as
to the background facts herein set forth.
AGVA is governed by a national board of directors of 45
members, each of whom is elected for a term of 3 years,
with one-third of the total elected each year. The national
board meets three times a year. In the intervening period
AGVA is governed by a national executive committee,
comprised of 15 members of the national board. The
officers are designated as president, first vice president,
second vice president, third vice president, secretary-
treasurer, and recording secretary. The day-to-day
administration is vested in a national administrative
secretary, a salaried employee, without tenure, serving at
the pleasure of the board. Conventions, attended by
delegates elected by the members of the various branches,
are held once a year.
In the stipulation of facts, submitted to the NLRB in
October 1963, the parties asserted that AGVA maintains
three regional offices, east in New York, midwest in
Chicago, and west in Los Angeles, and 26 branch offices,
including 2 in Canada, and 2 service stations. The
membership for the fiscal year ending January 31, 1962,
was represented as approximately 13,500 active members,
with approximately 7,000 inactive or withdrawn members.
The members in each branch elect a branch executive
committee, which, in turn, elects a branch executive
chairman, to function at the local level. The day-to-day
affairs of the branch are the responsibility of the branch
manager, a salaried employee, appointed by the national
board, nominally, on the recommendation of the national
administrative secretary.
Clayton I. Hart was employed by Respondent, as a field
representative, and later a branch manager, in various
field offices during a period from early 1948 until July
1952. He was then employed at the Hotel Bostonian, in
Boston, Massachusetts, until September 1954. He was
reemployed by Respondent in the early fall of 1954 and
continued that employment until his discharge on April 16,
1962.
s Bright, inferentially no longer employed by Respondent, and
Smolev and Green, whose employment or location is obscure,
were not called as witnesses
While I find it unnecessary to pass on the credibility of this
testimony of Hart, it is noted that Hart first related his
employment locations, at the time in question as "I went to
Pittsburgh, Pennsylvania, in February of 1957, and after spending
lust approximately 2 weeks in Pittsburgh, I was assigned to
Sarasota, Florida, by Mr Bnght, at which time I spent about 6
weeks in Sarasota, Florida, opening up the office From Sarasota,
Florida, in around April [1957] 1 went to Montreal, Canada, which
I spent approximately 5 months there From Montreal, Canada, I
was assigned to Dallas, Texas I spent approximately 6 months
there I left Dallas, Texas, to go to South Fallsburg, New York "
Hart, requested to specify dates, then stated, "I would say I left
Dallas, Texas, sometime late in the fall for South Fallsburg, and
from South Fallsburg I came back into New York, and on
January 2, 1958, 1 opened the Washington, D C., office, I spent
Hart described his duties as those of a branch manager,
or replacement of a branch manager who was ill, during a
substantial portion of the period he was employed by
Respondent and, more particularly, at the time of his
termination. He asserted the duties of a branch manager,
or branch representative, are to obtain agreements to
AGVA's minimum basic agreement, from employers
operating night clubs, hotels, cafes, cabarets, restaurants,
and theater restaurants, or from circus and outdoor show
operators. He also obtains agreements styled the AGVA
standard form of artist engagement contract, or
alternatively an agreement entitled "National Code of Fair
Practices of AGVA," establishing minimum conditions and
rates of pay for club dates and casual engagements, and
franchise agreements with individual promoters, bookers,
and agents. There is also a minimum basic agreement,
covering fairs, amusement parks, expositions, trade and
arena shows, etc. In addition, his duties included making
certain that bonds, assuring 1 week's pay of the
entertainers' contract fees, were posted and transmitted to
the Union and that welfare contributions were collected
and forwarded to national headquarters.
Al Fast related that he became a member of AGVA in
1939, having previously been a member of Actors
Federation of America. He was first employed by AGVA
from 1942 until 1945. He was in the entertainment field
from 1945 until 1953. He was reemployed by AGVA in
1953 and at that time assigned to the Tampa office as an
organizer and representative. His employment, at Tampa,
continued until his discharge on April 17, 1962.
Ernie Fast, brother of Al Fast, whose demise occurred
on January 17, 1965, was midwest regional director until
February 1962, when he was discharged, under
circumstances set forth, infra. He was rehired between
June 12 and 15, 1964, at the same salary, and became
southeastern regional director, in July 1964.
Hart asserted that in the early spring of 1958, while he
was assigned to the Washington, D.C., office, he had a
conversation with Jackie Bright, then national
administrative secretary. The conversation took place in
the Baltimore, Maryland, AGVA office and, according to
Hart, Lou Smolev, eastern regional director, and Jerry
Green, Baltimore branch manager, were present.
According to Hart, Bright asked Hart how things were
going in Washington. Hart related, "In jest, I said to him,
after that winter I just spent in Washington, I would give
,two big ones' to be in Florida." Hart asserted nothing else
was said, until an hour or so later, when Bright and Hart
were alone in Green's office, at which time Bright said,
according to Hart, "you know, if you are serious about that
,two big ones' I might be able to arrange that Florida
change." Hart asserted that he was transferred to
Sarasota, Florida, some 4 or 5 months later.5
approximately 7 months there " Again Hart modified the
sequence of events, as follows " I went in to South Fallsburg, New
York And from Dallas, Texas, I came back to New York City, and
from New York City, to Washington, D C From Washington,
D C , into Fallsburg, New York, and from Fallsburg, New York, I
came to Sarasota, Florida, in August of 1958-at which time I
stayed in Sarasota until the early spring of 1959 1 went to
Philadelphia, Pennsylvania, and spent approximately 3 or 4
months in that office From that office I was returned to Sarasota,
Florida, where, in early 1960, 1 was advised to close the Sarasota
office and remove myself to the Tampa branch and work in the
Tampa branch And I worked for the Tampa branch until
April 16, 1962, at which time my employment was terminated by
AGVA "
It was after this confusion of dates that Hart related his
conversation with Bright in Baltimore, allegedly in the early
spring of 1958, while situated in the Washington office
AMERICAN GUILD OF VARIETY ARTISTS
Hart asserted that about 3 or 4 weeks after he had been
transferred to Sarasota , he received a telephone call from
Bright during which Bright asserted "Well, you know you
are in Florida , how about the `two big ones."' Hart,
asserting , as he had earlier , that he thought the statement
was in jest , advised Bright that any time he wanted to
"come down" Hart had it for him . Hart asserted that about
2 weeks after this telephone conversation , he had another
telephone conversation with Bright in which Bright
inquired how he liked Florida and asserted "well, you are
not forgetting about the `two big ones ' are you." Hart
asserted he responded "no, I haven ' t forgotten about it,
but I am in the process of selling my home in Harrison,
New York. You would have to wait until the papers go
through on that ." Hart then variously placed the time of
this conversation as the first of August 1958 , and the latter
part of July. Hart then related a further conversation with
Bright , by telephone , about the middle of October 1958,
during which Bright inquired as to whether the papers had
passed on his house , then inquiring "when can I pick up
that `two."' Hart asserted he responded "Well you can
come to Sarasota any time at your convenience or I'll send
you a check ." Bright then advised Hart that there would
be a seminar in Fallsburg , New York, within the next
couple of weeks , and Bright requested that Hart bring the
money there in cash . Hart asserted that he attended the 3-
day seminar in South Fallsburg , New York, in the early
part of November 1958 , and the exchange of money took
place on the last day , after the seminar had broken up, and
the representatives were getting on a bus to return to New
York City.
Hart 's version of his meeting with Bright was that Bright
requested Hart to meet him in Hart's room "just before
you are ready to board the bus, and have the money for
me." Hart asserted that he gave Bright twenty $100 bills,
and that Fast was present . Hart described his room as
containing a deep walk -in closet adjacent to the entrance
door of the room . Hart asserted that Fast was in the closet
standing behind a val -pak and could not be seen from the
room , but could see into the room and could hear what
transpired.6
Hart described his conversation with Bright as
comprising only Bright 's inquiry as to whether he had the
money, his response in the affirmative , and his advice to
Bright "here it is, you want to count it?", to which Bright
replied in the negative . Bright placed the money in his
pocket, and told Hart to "go out, the bus is waiting."
Whereupon they left the room together.7
6 Hart's explanation was that Bright had previously borrowed
$750 from Hart and had returned only $250 Hart asserted he did
not want to be in the position of giving Bright money and having
no proof Accordingly Hart had arranged for Fast to be present, in
the closet
r Al Fast corroborated Hart's testimony that he was behind a
val-pak at the time there was an exchange of money from Hart to
Bright, but he did not know the amount
Since Hart left with Bright, whose val-pak was in the closet,
how it was obtained by Hart, if it belonged to him, is left
unexplained
At variance with Hart's assertion , that Hart left with Bright,
Fast was asked if he had a conversation with Hart when Fast
came out of the closet, and responded that Hart had said to him,
"I'll see you at the bus "
I also find incongruous the assertion of Fast that he had no
further conversation with Hart relative to this episode until 1961,
when Fast's brother, Ernie, telephoned him and said that Gus Van
had a story rumored around Miami Beach that Hart had given
$2,000 to Bright , to transfer Hart to Sarasota In sharp conflict
with this assertion of Al Fast is a statement in the pretrial affidavit
461
Fast asserted that he was visited, for the first time, by
Maisch, a representative of the McClellan Committee,
about the middle of November 1961, at the AGVA office in
Tampa. The conversation was apparently limited to the
minimum basic agreement, bond lists and AGVA
activities. Fast asserted that he advised Lou Smolev,
eastern regional director of AGVA, of the visit of Maisch.
Smolev advised Fast not to worry about it, "we got them
here too." The following day, Maisch returned and talked
to Hart. According to Hart, the principal inquiry of Maisch
was whether Hart would cooperate, to which Hart
responded in the affirmative. According to Hart, he
immediately thereafter called Bright, who was then
national administrative secretary, and advised him of the
visit of Maisch. Hart asserted that Bright advised him to
show the investigators all the records they wanted, "but
give them no information."
In early December 1961, Bright requested Hart and Fast
to meet him in Miami, where Bright was attending an AF
of L convention. According to Hart, Bright met him on the
street, and with no one else present, asked him if he could
not control his wife. Hart related that Bright stated that
Hart's wife had written Bright a letter requesting Bright to
return the $2,000 and other moneys previously given to
Bright by Hart. Hart asserted in his pretrial statement of
June 28, 1962, there was a meeting of Bright, Hart, Al
Fast, and Ernie Fast in the Bombey Motel room of Ernie
Fast. According to Hart, Bright advised Ernie Fast, "I am
hearing a lot of rumors. Are you with me or are you against
me. I understand that you are giving information against
me to the McClellan Committee and that you are calling
Penny Singleton on the telephone. Now if I find out that
either of these things is correct, you know what I have the
power to get rid of you or to take action." Bright then
turned to Al Fast and Hart and said "and that goes for you,
too-as far as giving out information.""
Hart asserted that about 2 weeks after his trip to Miami
he had a further conversation with Maisch at his home.
Hart's version of this conversation, relative to the payment
of $2,000 to Bright, is self-conflicting. Hart first asserted
that Maisch advised him that Maisch had heard through
Gus Van or Ernie Fast that he had given $2,000 to Bright.
Thereafter, Hart asserted that when Maisch visited his
home he gave Maisch information, of which Maisch was
not aware, concerning a $2,000 payoff to Bright. Hart
denied advising anyone in AGVA of the $2,000 payoff,
prior to June 1962, at which time he met Ernie Fast in
of Ernie Fast, that Hart told Ernie of the $2,000 payment, and that
Ernie told Van and Lester Fast placed the time of the telephone
call prior to his December 1961 tnp to Miami.
s While Al Fast corroborated the fact of the meeting and the
conversation, his version was that Bright asserted he had been
hearing rumors about Ernie Fast talking in confidence with Penny
Singleton , then inquired if Ernie Fast was going to be a witness for
the McClellan Committee. Al Fast asserted that Bright advised
his brother , Ernie, that if Ernie disclosed certain things about
Chicago, it would come out and he could be relieved of his lob,
then advised that the same thing applied to Al Fast and Hart The
pretrial affidavit of Ernie Fast is in sharp conflict with the
recitation of Hart and Al Fast. Ernie Fast relates that Bright asked
Al Fast and Hart to leave the room as Bright wanted to talk to
Ernie Fast alone, and advised them that he would meet them at
Pumpernickles . It was after this that Bright inquired if Ernie Fast
had been in touch with Penny Singleton and asked questions
about the McClellan Committee. Ernie Fast then asserted, "we
then met Hart and Al Fast at Pumpernickles ." I do not credit the
recitations of Hart and Fast
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington prior to the McClellan hearings and Hart
advised him of this fact.9
Al Fast related that 1 or 2 weeks after he returned from
Miami, in December 1961, Maisch visited his home and
asserted that he had heard rumors "that there was a
$2,000 bonus money given to Jackie Bright from Smiley
Hart, that did I know anything about it?" Al Fast asserted
that he responded that he certainly did and that he
explained to Maisch how he happened to be present at the
time the money was given to Bright.10
C. The National Executive Committee Meeting of
April 16,1962 , and the Discharges of Hart and Al Fast
Hart related that a national board meeting was
scheduled for February 1962. Prior to that meeting, Bright
called Hart and advised Hart that Gus Van, then first vice
president , was complaining about insufficient bonds being
obtained at a club known as the Roaring Twenties in
Atlanta. Atlanta at that time was under the jurisdiction of
the Tampa office. Hart asserted that Bright also
mentioned that Van "got some information from Ernie
Fast that I had given Mr. Bright $2,000 ." Bright advised
Hart to come to the national board meeting and deny these
charges, and Bright would take care of the insufficient
bond problem . Hart asserted that he had a friend of his
wire Bright , from Atlanta , Georgia, that Hart was
grounded and unable to get to New York.
In March 1962 , pursuant to instructions from Bright,
Hart went to the national AGVA office in New York. At
that time Bright inquired how it was possible for Van to
know anything about the $2,000, asserting that it was
evident that Hart must have told someone . Hart asserted
that he responded that he had not told anyone about it, but
that the McClellan Committee had subpenaed his income
tax return and he had listed the $2,000 in his income tax
return as a bad debt . Hart asserted that he explained to
Bright that he -didn ' t want to pay the income tax on the
$2,000. Bright , according to Hart , advised Hart that Van
was then working at the Astor Hotel, in New York City,
and suggested that Hart see him and get Things
straightened out. Hart asserted that he responded that he
would refuse to do this, that he had done Van many favors
and did not believe that Van had any right to bring up the
matter of the bond. Hart asserted that Bright responded
that he would take care of the bond situation , but Hart
should take care of the rumor.
Hart related that when he first went to Sarasota, Florida,
time unspecified, his salary was $150 a week; later, in
1959, upon his return to Sarasota, it was reduced to $100 a
week. Hart asserted that during the March 1962
conversation he requested that Bright obtain a restoration
of his salary, explaining that since the closing of the
Sarasota office he was traveling 130 miles a day. At
variance with this testimony, Hart then asserted that it
was the week after he had returned to Tampa that he
advised Bright that he thought it had been long enough
that he had not received the salary he originally started
for, that the branch executive committee in Sarasota had
recommended that it be restored, that the Tampa branch
was the fourth or fifth best paying office. Hart asserted
that Bright responded that the maximum that he was
allowed to give was a $25 raise and it would require 3
months before he could recommend another raise. Bright
then suggested he would have Hart before the national
executive committee and he could ask that they restore his
salary.]]
Hart asserted he had no further conversation with
Bright relative to appearing before the national executive
committee, but Lou Smolev, eastern regional director,
called him on Friday afternoon, inferentially April 13,
1962, advising him that Bright wanted him to appear
before the national executive committee on Monday,
April 16, at which time he could ask that his pay be
restored. Smolev also advised Hart to bring Al Fast with
him.
Fast, at variance with Hart, asserted it was Smolev,
rather than Hart, who advised Fast to appear at the
national executive committee hearing on April 16 Fast
then asserted that Hart told him that something had come
up about some arbitration or something. Fast asked
Smolev why he had to come to New York, and Smolev
responded that Bright wanted him to Come. 12
Hart described the events at the national executive
committee meeting, on April 16, as beginning with a
lengthy discussion of the matter of the bond at the Roaring
Twenties, initiated by Gus Van. Thereafter, Joe Adams, a
committee member, said, "Let's get down to the real issue
of why these fellows were brought here." Bobby Faye then
advised Hart that he was not under oath, that he was going
to ask a question, and if the committee didn't like his
answer, Faye would file charges against him; also, if he
answered and they found out his answer was untrue they
would file charges against him. At this time, Bright asked
9 I find of no consequence Hart's recitation of other activities of
AGVA, which he asserts he brought to the attention of Maisch, for
reasons explicated, infra To the extent the statement of Ernie
Fast incorporates information given to him by Hart, of which Fast
had no personal knowledge, it is incompetent as hearsay I find
implausible Hart's assertion that he advised Bright of the visit of
Maisch, and Hart's assertion that Bright advised him "you're
smart enough to know the investigation is nothing but a farce but
you know how to handle those investigators," to the extent that it
implies that Bright was advised of the nature of the inquiry
11 Thereafter Fast acknowledged having made a pretrial
statement, under oath, on July 18, 1962, in which he related that
Maisch visited him at his home in March 1962 Fast asserted, in
the statement, that he did not tell Maisch that the money was
passed in order for Hart to obtain a transfer to Sarasota, rather it
was Maisch who told him, inferentially in March 1962, that there
was a rumor around Miami Beach and that Fast's brother, Ernie,
had told Maisch that Gus Van was spreading rumors that Hart had
paid Bright $2,000 Fast then asserted "I didn't tell it I didn't
know about it I didn't know nothing about it How could I tell it "
At variance with the above assertion, Fast also asserted, during
the hearing herein, that he first learned the purpose of the
payment from Hart to Bright in April 1962, lust prior to the Senate
Committee hearings in the office of the Senate sub-committee in
Washington, D C
I do not credit the assertion of Fast that the "B" girl situation
did not exist in Tampa, but existed all over the country, since
there is no evidence that Fast had any knowledge of conditions
elsewhere
11 Hart did not explain how a branch executive committee in
Sarasota was operating, if in fact the Sarasota office had been
closed, as he related
12 Fast later asserted that it was his brother, Ernie Fast, who
told him that Bright wanted him to appear before the national
executive committee Fast asserted that his brother advised him,
before the meeting, that the assertion that they wanted to discuss
the bond list, inferentially referring to the Roaring Twenties, was
a lot of malarky-"its for a transaction of the money its all over
the Beach about the $2,000 That's no issue, about the bond No
place has sufficient bond " Fast then asserted that Bright thought
that Fast's brother, Ernie, wanted Bright's job and there was a lot
of politics involved Fast then denied that on the way to New
York, with Hart, there was any discussion of the $2,000 It is noted
that the discharge of Ernie Fast, in February 1962, preceded this
alleged conversation
AMERICAN GUILD OF VARIETY ARTISTS 463
Al Fast if he had ever seen Hart give him any money. Hart
asserted he was sitting beside Fast , wrote the word "no"
on a piece of paper and laid it in front of Fast . Fast then
answered Bright in the negative . Thereupon , J. Lester,
chairman of the meeting , then asked Hart if he ever gave
Bright any moneys other than those collected for dues and
bonds. Hart asserted that he responded by asking if it was
true, as had been previously stated by Lester, that a
national board member can say whatever he wishes about
an AGVA representative or manager , and that the latter
does not have to be told about it. Upon Lester 's affirming
the accuracy of that statement , Hart asserted that he said
if that was the case he didn't care to work for the
organization , he laid his union membership card on the
table, and walked out of the room.13
Al Fast 's version of these events varied only slightly
from the recitation of Hart . Fast asserted that ' after Joe
Adams stated , "Let's get on with what we're supposed to
get on with ," Lester brought up the name of Fast's
brother, Ernie , asserting that Ernie had told him about the
$2,000 , to which Al Fast asserted he responded that he did
not know what his brother had told Lester . According to
Fast, Lester then responded, "You must know about it.
Your brother knew about it." Fast responded that he knew
nothing. Thereupon Faye advised Fast if he answered the
question with a no or with a yes he could get fired. It was at
this point , according to Fast , that Bright asked if he ever
saw Hart or anyone else give Bright any money. Fast
asserted that he responded he didn't see anything and that
he did not want to get mixed up in politics . Fast asserted
that Faye then advised Hart that if he answered Faye's
question with a no "you get fired ," and if he answered with
a yes "you get fired ." Faye then asked Hart if he gave
Bright $2,000 . Hart responded that he didn't have to
answer the question , threw his union card on the table,
and walked out. Fast was then asked to leave the meeting.
Linda Compton , a member of AGVA since its inception,
in 1938 or 1939, attended the national executive committee
meeting on April 16 , 1962. Compton credibly related that
prior to the meeting there were rumors about a payment of
$2,000 from Hart to Bright . She asserted that she knew,
prior to the meeting , that Hart and Fast had been called to
appear before the committee for the purpose of discussing
this matter . Compton related that Fast denied witnessing
the payment of money asserting he knew nothing about it,
and that Hart said he didn't have to answer the question,
threw his union card on the table, and left the meeting
asserting that he had quit . 14 Compton denied any
awareness of any cooperation by either Hart or Fast with
McClellan Committee investigators on April 16, 1962.
Having her memory refreshed , by reference to the minutes
of that meeting , Compton was asked if she recalled a
lengthy statement by Bright , relative to the allegations of
the payment of $2,000 to him, a portion of which asserted
that Bright had been told that the $2 ,000 was deducted
from Hart 's income tax in 1958 or 1959, and that Hart had
so advised an investigator , and had given the investigator
an affidavit , Compton acknowledged that the McClellan
Committee investigation was discussed . Similarly,
Compton recalled a statement being made by Faye but not
its content , but did not dispute the accuracy of the minutes
of the meeting which were read to her. Compton credibly
related that nothing was said on April 16, 1962, to the
effect that Fast and Hart should be fired because they
were cooperating with the McClellan Committee.
Harold Swiss is executive secretary to Jones, national
administrative secretary , and held the same position,
under Bright , in 1962. Swiss is a stenotype operator and
has taken the minutes at the national executive committee
meetings since 1951. Swiss credibly related that he did not
hear any conversation on April 16 , 1962, between the
Board members present , or anyone else in attendance at
the meeting relative to cooperation between Fast and Hart
on the one hand and the McClellan Committee
investigators , on the other hand , or anything to the effect
that either Hart or Fast should be fired because of their
having given cooperation to the investigators. Swiss
acknowledged he had no independent recollection and
that he was dependent upon the contents of the minutes he
had prepared from his stenotype notes. Swiss
acknowledged that McClellan Committee investigators
had visited the national headquarters in New York, in the
fall of 1961 . Swiss related that after a national executive
committee meeting he prepares a summary of the minutes,
encompassing the major actions, reports of officers, and
reports of the national administrative secretary. The
minutes are then sent to the committee members who
were present and if there is no response within 10 days it is
assumed the minutes are accurate . The minutes are then
distributed to the entire membership of the national board.
Accordingly, since the minutes are not disputed, I find
that Faye did, on April 16, 1962, advise Fast and Hart that
the national board first heard of the alleged payment of
money by Hart to Bright in February 1962, that the
purpose of the April 16 meeting was to hear both sides of
the story , that if the allegations were true the facts would
come out before the McClellan Committee and if the
national executive committee and national board did
nothing about it they would undoubtedly be questioned as
to the reason for their failure to act by the McClellan
Committee. i5
Hart and Fast were advised by Bright , the following day,
that they had been fired by the national executive
committee.
D. The Discharge of Ernie Fast
In the amended complaint of July 15, 1963, it is alleged
that Ernie Fast was discharged in February 1962, because
he engaged in activities which would preserve and
promote rights, guaranteed under Section 7 of the Act, of
employees represented by Respondent and/or because he
gave evidence to, and otherwise cooperated with, the,
McClellan Committee.16
The demise of Ernie Fast occurred on January 17, 1965.
General Counsel tendered , and Respondent objected to
admission of, a pretrial statement of decedent, given to a
Board agent on November 2, 1962. The document was
authenticated by the field examiner who obtained the
affidavit from decedent . The document was received
13 I find implausible and incredible Hart 's explanation of his
reason for refusing to answer the question Hart asserted, "I
didn 't like to have Mr Bright in the same room with the question
being asked and I had given Bright my word " Hart also asserted
"I had given my personal word to Maisch I would not divulge any
information and he is a perfect gentleman "
14 Compton explained that Van had advised her prior to the
meeting that he had been told by Ernie Fast about the payment
15 The McClellan Committee hearings did not begin until
June 12,1962
1B Respondent 's contention that the amended charge, relating
to Ernie Fast , was more than 6 months after the discharge, thus
beyond the Section 10( b) period is without merit N L R B v Fant
Milling Company, 360 U S 301, National Licorice Company v
NLRB,309US 350
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditionally, subject to the parties submitting the
pertinent provisions of Florida law, and Board and court
decisions. The Florida deadman's statute" does not
preclude the receipt of the pretrial statement. The weight
to be accorded is an entirely different question.
General Counsel urges that in the Calandra case18 the
Board approved consideration of a statement of a
decedent dischargee. However in that case the Trial
Examiner rejected the evidence as hearsay, corroborated
only by the widow of the decedent reciting utterances of
the decedent which were self-serving.
In the Linde Air case'9 where witnesses testified to
conduct by a deceased general foreman of respondent, the
Board, in reversing the Trial Examiner's rejection of the
evidence, held that evidence of statements attributed to
deceased persons should be subjected to the closest
scrutiny, but that such evidence may be accepted as true
where it is positive, unequivocal, and substantially
corroborated by other witnesses.20
In the West Texas Utilities case21 the Board asserted
that it was not precluded from considering as evidence
statements attributed to deceased persons, or those too ill
to testify. It does, however, subject such testimony to the
closest scrutiny before deciding what weight to give it.
Here, again, the Board considered evidence of witnesses
produced by General Counsel, who attributed to a chief
engineer and a production superintendent, one of whom
was dead and the other too ill to testify, conduct found to
be violative of Section 8(a)(1) of the Act.
Unlike the cited decisions, General Counsel premises
his entire complaint, insofar as it is related to the facts
surrounding the discharge of Ernie Fast, on the pretrial
statement of Fast, with no corroborating evidence.
In his statement Ernie Fast relates that in December
1961, during a conversation at which no one else was
present, Bright sought to learn from Fast if Fast had been
in contact with Penny Singleton, and was advised that he
had not been. Bright then asked questions about the
McClellan Committee which Fast did not answer. In
February, after Fast had failed to appear in New York, as
requested by Bright, allegedly on doctor's orders, he was
advised by Bright that he was discharged because of
insubordination.
I find in this record no evidence of probative value
requisite to support a finding that the discharge of Ernie
Fast was because he had engaged in activities guaranteed
under Section 7 of the Act in preserving and promoting
rights of employees represented by Respondent or
because he gave evidence to, or otherwise cooperated
with, the McClellan Committee. Accordingly, I will
recommend dismissal of the allegations of paragraphs 4, 5,
6, 7, and 8 of the amended complaint of July 15, 1963,
insofar as they relate to the discharge of Ernie Fast.
Contentions of the Parties and the Concluding Findings
General Counsel predicates his argument on what he
describes as "undenied" evidence that Bright, in a
conversation with Hart, Ernie Fast, and Al Fast, in
December 1961, threatened Ernie with loss of employment
for having cooperated with the McClellan Committee, at
the same time warning Hart and Al Fast that the same fate
would befall them if they gave any detrimental information
Section 90 05
Calandra Photo, Inc, and Irvin C Levin, 151 NLRB 660,
671
i a The Linde Air Products Company, 86 NLRB 1333, 1336
20 See also Reynolds Wire Company, 26 NLRB 662, enfd 121
F 2d 627 Quarles Manufacturing Company, 83 NLRB 697
to said committee . To the contrary , Ernie Fast 's affidavit
recites that his conversation with Bright occurred after
Hart and Al Fast had been requested , by Bright , to leave
and, inferentially , had done so . Ernie Fast ' s affidavit
makes no reference to any threat at the meeting in
December 1961 . On the basis of demeanor, the numerous
contradictions in the testimony of Hart as compared to
that of Al Fast , the numerous self-contradictions of these
witnesses , the many evasive answers of Al Fast , and his
repeated refusal to abide by my instructions to answer
rather than evade questions , as well as the obvious interest
in the outcome of the litigation of these two witnesses,
cause me to find their testimony relative to the threat by
Bright not credible.
General Counsel asserts that Bright , having failed to
persuade Ernie Fast to disclose what he had told the
McClellan Committee , disposed of his service on grounds
of insubordination In so concluding , General Counsel
draws inferences solely from the pretrial statement of
Ernie Fast , which I have found contains no evidence of
probative value, for lack of corroboration relative to the
circumstances surrounding the discharge
General Counsel then asserts that Bright, having
eliminated Ernie Fast who initiated what is referred to in
the record as the "rumor " of the payment of the $2,000,
then sought to persuade Hart to deny that there had been
any exchange of money , in an appearance before the
national board, in February 1962. In March 1962 , Bright
summoned Hart to New York to ascertain how Van
acquired knowledge of the $2,000 payment . Hart , denying
having told anyone about the transaction , did advise
Bright that the McClellan Committee had subpenaed
Hart 's income tax returns , which listed the $2,000 as a bad
debt. General Counsel asserts that under the pretense of
having Hart appear before the national executive
committee on April 16 , 1962, for the purpose of securing a
restoration in his pay, Bright managed to have not only
Hart , but also Al Fast , appear for an entirely different
purpose. This assertion is supported only by the testimony
of Hart , and is not credited.22 The argument of General
Counsel ignores the testimony of Al Fast that he had been
advised by his brother, Ernie Fast, prior to his attending
the April 16 meeting , of the real purpose of the meeting. It
also ignores Al Fast ' s assertion that , having been so
warned by his brother , there was any discussion between
him and Hart relative to the payment of $2,000, during
their joint trip to New York for the meeting.
General Counsel urges , in his brief , that Bright, having
removed Ernie Fast , whom he describes as the source of
the rumor, from employment , in April 1962 , undertook,
with the concurrence of the national executive committee,
to get rid of Hart and Al Fast, the parties who had personal
knowledge of the money transaction , to place the three
individuals "who had knowledge of AGVA irregularity" in
the position of disgruntled employees . This is speculation
unsupported by evidence . It is inferred , if Bright could
discharge Ernie Fast , a regional director , he certainly
could discharge a lesser employee , without reference to
the national executive committee , or without the need to
obtain advance authority.
I have found that Bright did advise the national
executive committee that a statement had been given to an
21 West Texas Utilities Company, Inc , 94 NLRB 1638, 1639
22 In making my credibility findings relative to Hart, I have
found it unnecessary to refer to his acknowledged prior criminal
record, or his alleged later pardon The circumstances and
content of the pardon are not in evidence
AMERICAN GUILD OF VARIETY ARTISTS 465
investigator of the McClellan Committee by Hart, that
Hart had deducted $2,000 from his income tax in 1958 or
1959 as a bad debt. There can be little doubt from the
statement made by Faye, which I have found it
unnecessary to set forth in full, as revealed by the minutes
of the April 16 meeting, that the national executive
committee was concerned as to the degree of truth, if any,
in the rumor which had been reported to them as
acknowledged by Compton, on the question of Hart paying
$2,000 to Bright for an assignment to Florida. In view of
the knowledge of the national executive committee, which
is undisputed, that the McClellan Committee was
investigating certain activities of AGVA, it may reasonably
be inferred that the national executive committee sought
to ascertain the truth in order that it could take
appropriate action.23 It does not follow that when Al Fast
denied any knowledge and asserted it was a matter of
politics, and when Hart refused to make any response and
asserted that he was quitting, the motives underlying the
discharges included a recognition of the fact that these
employees might later testify before the McClellan
Committee. I have found credible Compton's assertion
that nothing was said on April 16, 1962, relative to
discharging Fast and Hart because they were cooperating
with the McClellan Committee.24
Respondent asserts that Al Fast, a knowing participant
in the bribe, was fired originally for concealing the bribe
from the union "Board of Directors" [sic]. Respondent,
inaccurately, asserts that no one at the meeting on
April 16, 1962, knew anything about Hart or Fast
cooperating with the McClellan Committee, and that the
minutes bear out this assertion.
I find no credible evidence of probative value which
would support an inference that the discharge of Al Fast
and Hart, on April 16, 1962, was either because they had
engaged in activities in preserving and promoting rights of
employees represented by Respondent, or because they
gave evidence to, or otherwise cooperated with, the
McClellan Committee. Accordingly, I will recommend
dismissal of the amended complaint in Cases
12-CA-2993-1 and -2.
E. The Rehiring of Al Fast, on June 22,1964, and His
Subsequent Discharge on July 12, 1965
In Case 12-CA-3327, it is alleged that Al Fast was
rehired on June 22, 1964, and discharged on July 12, 1965.
It is alleged that the discharge and the refusal to reinstate
were by reason of Fast engaging in activities which would
preserve and promote the rights of employees, as
guaranteed in Section 7 of the Act, or because he gave
evidence to, or cooperated with, the McClellan
Committee.
It is undisputed that Al Fast was reemployed on
June 22, 1964. His brother, Ernie Fast, who had been
reemployed earlier in the same month, and subsequently
became southeastern regional director, advised him,
during the week preceding June 22, that Johnnie Woods
wanted to see him. Subsequently, on June 22, he had a
conversation in New York, with Woods, whom he
described as "National Administrator,"25 and Berg, the
then attorney for AGVA. Fast asserted that, prior to the
arrival of Berg, Woods advised him that he would be put
on the payroll immediately, that he would be given a $25-a-
week raise in salary, to make up for what he lost during his
nonemployment. Fast acknowledged that he advised Berg
he would drop the pending charges against AGVA, in
Cases 12-CA-2393-2 and 12-CB-647 .26 Fast related that
his instructions, from Woods, were to conditionally close
the Sarasota office and open a Tampa office.27
On January 22, 1965, an interoffice memo to "all branch
managers and Regional Directors" was dispatched over
the signature of Alvin Brandt, and a later correcting
notice, relative to the election of delegates to the annual
convention in June 1965, was dispatched by Dick Jones,
then national administrative secretary.28 Subsequently
there was an exchange of communications between Fast
and Warren S. Bailey, then administrative secretary,
commencing approximately March 22, 1965.29 On
April 12, 1965, Bailey advised Fast that on April 12, 1965,
the national executive committee voted to close the Tampa
office, transfer its function to the Sarasota branch, and
transfer Fast to the New York branch office, as a
representative at the World's Fair, effective April25,
1965. On April 19, 1965, Bailey advised Fast that Bailey
had been advised by Jay Lester, eastern regional director,
that Fast had asserted that he had "made a deal" for
indefinite employment at Tampa. Bailey asserted an
unawareness of any such contractual arrangement or any
reference thereto in the minutes of the national board or
national executive committee. Bailey advised that the
closing of the Tampa office was suspended, pending Fast's
appearance before the national executive committee to
explain and substantiate his claim of a "deal."
On April 21, 1965, Bailey advised Fast that he had
received no response to Bailey's memo of April 12
advising Fast of the closing of the Tampa office, that by
reason of Fast's protest to Lester, Fast was being provided
an opportunity to be heard by the national executive
committee. Bailey further noted a report in Variety (a
trade magazine), in the April 21, 1965, issue, to the effect
that Fast had retained an attorney to protest the decision
of the national executive committee
_ _ __
Subsequently, on May 18, 1965, Fast appeared at a
meeting of the national executive committee in New York
and was questioned about certain releases which had
appeared in Variety, and relative to the alleged agreement
he had for permanent employment in Tampa. Fast first
asserted that this was an agreement that he had made with
Jones, Harold Berg, and his brother Ernie Fast.30
23 I have found it unnecessary to set forth other matters which
Hart and Al Fast allege they reported to Maisch, since none of
these matters were mentioned in connection with the meeting of
April 16 and, I find were not considered in tie decision to
effectuate these discharges.
24 Such a claim appears to have been an afterthought on the
part of Al Fast, or someone else on his behalf When Fast
appealed his discharge to the national board on April 26, 1962, he
asserted he was fired because of trumped-up charges brought by
Van relative to insufficient bonds, inferentially a reference to the
Roaring Twenties Club Fast acknowledged that Lester advised
him and Hart in June that the executive committee would have
fired Bright if they had related the story of the $2,000 payment
25 It is inferred that Woods wa-, national administrative
secretary
26 It is undisputed that these withdrawals were never approved
by the Regional Director
27 I find of no consequence the fact that the Sarasota office
remained open for an indefinite period, as described by Fast
29 While there is a dispute whether Tampa was in fact a branch
office or a service office, I find it unnecessary to reach this issue
29 Included was an admonition from Bailey that he considered a
telegram from Fast as being insubordinate
39 It is obvious that Fast confused Jones with Woods, the latter
being the national administrative secretary in June 1964
It is also patent, from the testimony of Al Fast, that his brother
Ernie was in the hospital, having had a heart attack, at the time of
his conversation with Woods and Berg on June 22, 1964.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fast acknowledged the purpose of his appearance
before the national executive committee, on May 18, 1965,
was, in part, to substantiate his claim that he had an
agreement for permanent employment in Tampa. Fast
acknowledged advising the executive committee that his
agreement was in writing, but that he did not have it with
him. During the hearing herein, Fast asserted that he did
have a written agreement which he had signed with Berg
and Woods. Asked to produce a copy, Fast vacillated and
became evasive. He first asserted, "the last time I seen it;
Johnnie Woods had one of them, Harold Berg had one, my
brother Ernie Fast had one." He was then asked when he
last saw his own copy and asserted that it was in March
1966, at which time he had turned it over to the General
Counsel. It was then established that the document he had
turned over to the General Counsel related to his backpay
claim, as distinguished from an employment agreement.
Thereupon, Fast acknowledged he did not have any
written agreement with Woods or Berg concerning his
tenure of office at Tampa. Fast then asserted that an
agreement was prepared in Tampa in August 1964 and
signed by Fast's brother, Ernie, who at the time was
southeastern regional director. Fast then asserted that his
agreement, at the time he was rehired, with Woods and
Berg was a verbal agreement.31 I do not credit Fast's
assertion that there was a written agreement or an oral
agreement concerning his tenure of employment at
Tampa.
On May 18, 1965, Fast was advised by Bailey, by
telegram to his New York hotel, that the national executive
committee had reaffirmed its action of April 12 in closing
the Tampa office and directing Fast to report for duty in
New York on June 1, 1965. An identical wire was also sent
by Bailey to the Tampa office.
On May 24, Fast requested Bailey to advise the terms
and conditions of his position in New York, salary and
duties involved, and requested information relative to
reimbursement for certain costs. On May 26, Bailey
responded that Fast would be a representative in the New
York branch at his current salary and that reimbursement
for moving expenses was a matter for the national board.
On May 27, Fast requested that he be permitted to take 3
weeks' vacation, commencing May 31. On May 28, by
letter, Bailey approved Fast taking his vacation
commencing May 31. On June 11, by telegram, Fast
complained that he had received only 2 weeks' vacation
pay, while entitled to 3 weeks, and requested advice
concerning moving expenses. On June 24, Fast wrote to
Bailey that he had no response to his telegram of June 11,
31 Subsequently Fast was asked the following series of
questions to which he gave the following replies, during his
appearance before the national executive committee, in May
1965
Q Where you asked this question Was that ag._,..nent
made in Tampa or New York 7
A Right here in New York, right here in the office
Q Was Mr Berg and Mr Woods Cher, 9
A Yes
Q Will you tell us what the agreement was, was it in
writing or oral?
A It was in writing
Q Now, did you so state to the National Executive
Committee when you appeared before them9
TRIAL EXAMINER- You are being asked if this is the
testimony you gave, yes or no
THE WITNESS' I said yes, I am going to say yes, sir
Q Were you telling the truth to the National Committee9
A Yes sir
Q When you said that you had a written agreement with
that since his vacation had ended he had been carrying on,
as usual , and had been contacted by various agents. On
June 30, by letter, Bailey advised Fast that he was only
entitled to 2 weeks' vacation pay, by reason of a break in
employment from 1962 to 1964. On July 12, 1965, Bailey,
by telegram, advised Fast, "In view of your refusal to
follow direction of national executive committee, May 18,
1965, you are suspended from all AGVA duties." On
August 4, 1965, Bailey, by letter, advised Fast that as he
knew the national executive committee had closed the
Tampa office and he was transferred to New York, that his
request for his vacation prior to transfer was granted, that
thereafter he failed to report and failed to communicate or
explain his absence and was then removed from the
payroll, that after a review of these facts his dismissal was
ratified by the national executive committee.
Fast acknowledged that on May 18, 1965, in the New
York headquarters, he had a conversation with Bailey, Jay
Lester, eastern regional director, and others, during which
he inquired relative to the closing of the Tampa office.
Fast, at that time, was advised by Bailey that they needed
organizers at the World's Fair. Fast asserted that he
responded that he did not mind such an assignment for a
week or two, but that he had his roots in Tampa. Fast
asserted that he inquired about an adjustment for the cost
of transportation and was advised that that matter would
come up before the board. Shortly thereafter, after Fast
had returned to Tampa, he was advised by John South, at
that time branch manager at Sarasota, Florida, that South
had been instructed by Bailey to move all of the AGVA
records to Sarasota. South exhibited the telegram to
Fast.32 Fast did not dispute his failure to appear at New
York for reassignment as directed.
William James Ahern credibly related that he had been
in show business for 56 years, a member of AGVA since
1940, and a member of the national board and the national
executive committee since October 1963. Ahern was
present at the meeting of the national board in June 1964,
when the reemployment of Fast was discussed. Ahern
asserted that there was no discussion relative to giving
Fast a permanent position, in Tampa or elsewhere. Linda
Compton, also a member of the national board in June
1964, corroborated the asse. Lion of Ahern that when Fast
was rehired by the board, the matter of a permanent
position in Tampa was not one of the terms under which he
was rehired.
Richard J. Jones, also identified in the record as Dick
Jones, credibly related that he had been in show business
John Woods and Berg, was that the truth"
A Yes sir
Q Do you have a copy of that agreement 7
A I don't
Q When was the last time you saw rt7
A March, around March
Q Where is it now9
A I don't know where it is now
Respondent's counsel then noted that this testimony was given
on March 9, and Fast was asked where he last saw the agreement
He then responded that the agreement was an oral agreement,
and added "I signed some work agreement with them, I think "
32 While Respondent extensively examined Fast relative to the
inadequacy of his performance in early 1965 as a representative of
AGVA at Tampa, and while Fast's answers further demonstrate
his evasiveness and self-contradictions, I find it unnecessary to
set forth the detail of this evidence, since there is no evidence that
the performance of Fast was a reason for the decision of the
national executive committee to close the Tampa office
AMERICAN GUILD OF VARIETY ARTISTS 467
approximately 40 years and has been national
administrative secretary since February 15, 1966, and
assistant administrator since June 1964. Jones attended
the meeting of the national board as a member in June
1964. Jones asserted that he, in June 1964, related to the
national board that Al Fast had two cases pending before
the National Labor Relations Board, one involving his
employment, and that he advised the board that they
didn't have much choice, and that it would be the lesser of
two evils to give him his job back at that time. Jones
expressed, as his view, that Fast's case involving
employment as an actor, was a valid one, and he urged the
board to reemploy Fast as an employee, if Fast was willing
to drop the charges. Jones asserted that Fast was
reemployed and was assigned to Tampa and no
representation was made relative to tenure and there was
no written agreement covering Fast's employment. Jones
was also present at the meeting of the national executive
committee, on May 18, 1965, at which Al Fast was present.
Ahern was chairman of the meeting. At that time Fast
asserted that he had a written agreement, which he did not
produce, relative to his employment. Jones related that,
during the meeting, at a time when Fast had been asked to
leave the room, Jones restated the statement he had made
to the national board in June 1964 and asserted that at no
time was there any mention made of any permanent
position for Fast.33 Jones, after refreshing his memory
from a transcript of the proceedings, asserted that after
Fast returned to the meeting, on May 18, Maloney,
attorney for AGVA, advised Fast that the committee had
reaffirmed its decision to close the Tampa office and to
transfer Fast to New York.
Contentions of the Parties and Concluding Findings
General Counsel urges that from the time of the
reemployment of Al Fast in June 1964 until March 23,
1965, Tampa was considered a branch office, and,
accordingly, Fast, as branch manager, was entitled to
conduct a membership meeting for the purpose of electing
delegates to the June 1965 convention. General Counsel
notes that Fast took exception to Bailey's telegram of
March 22, pointing out the constitutional provisions which
granted Tampa members the right to elect a delegate, that
in place of explaining the points raised by Fast, Bailey
accused Fast of "insubordination," and advised Fast that
the closing of the Tampa office was under consideration.
Thereafter, on April 12, 1965, Fast was advised that the
Tampa office would be closed and he would be transferred
to New York. General Counsel urges that there was no
assurance of any permanent position for Fast in New York.
General Counsel urges that the closing of the Tampa office
was not for any legitimate business reason but rather to
place Fast in the position of forcing him to quit. General
Counsel urges, in following the course of action he
pursued, that Fast was attempting to protect the rights of
AGVA members living in the Tampa area. General
Counsel urges that even though Fast made several
inquiries relative to moving expenses to New York, he
never received any satisfactory answer. General Counsel
urges that having failed to respond to Fast' s inquiries
relative to moving expenses, Bailey, on July 2, 1965,
advised that Avery Peterson, who had no previous
experience with AGVA, was being appointed Sarasota
branch manager. General Counsel then urges that if
AGVA were truly interested in giving Fast employment
elsewhere it could have appointed him to the Sarasota
office. General Counsel urges that Fast was discharged, on
July 12, 1965, not because he refused to report to New
York, but because he was continuing to engage in
protected concerted activities to protect the rights of
members working in the Tampa area.34
Respondent urges that when Fast was reemployed in
June 1964, he was placed in charge of Tampa, which
Respondent asserts was a service area and not a branch
office. Respondent asserts that after the national office
instituted a system of daily coverage reports, required
from field representatives, Fast filed only 15 such reports
in a period of 3 months, all but one of which were filled out
by his daughter. When it was decided to close the Tampa
office, Fast requested and was given a hearing concerning
a "written contract" he claimed he had with AGVA for
permanent employment in Tampa. Upon his failure to
produce such a document, he was ordered to report for
duty at New York, to be assigned to the World's Fair.
Upon his refusal to report he was discharged.
It may be inferred from the record that over a period of
years AGVA maintained a regional office at Sarasota,
Florida, and at least during the period of Fast's
employment in 1953, until and after his discharge in 1962,
had also maintained an office at Tampa. It is undisputed
that during a portion of this time Hart was branch
manager, first at Sarasota and later at Tampa. Thus it is
patent that during a portion of Hart's employment, Tampa
was considered a regional office; however Fast was not the
regional manager . Fast, who is best described as an
evasive witness, acknowledged that when he was
reemployed in June 1964, he was reemployed at the same
job as he previously held. It may thus be inferred that he
was not appointed a regional manager . Fast also
acknowledged that he was reemployed at the same rate of
pay, plus an extra $25 a week to be applied to the loss he
suffered while not employed by AGVA.
It is undisputed that the national executive committee
decided to close the Tampa office and transfer its
operations to Sarasota. The decision was suspended
because Fast alleged a written agreement giving him
tenure in the Tampa office, which later proved to be
nonexistent. It is undisputed that Fast failed and refused
to report to New York for reassignment and was
discharged for that reason. While the record would
substantiate a demonstration of inadequacy on the
performance of Fast, I have not considered this evidence,
since it does not appear affirmatively to have motivated
the national executive committee's decision to close
Tampa. However, General Counsel' s assertion that the
national executive committee could have used Fast rather
than a new employee as Sarasota branch manager, is the
equivalent to saying that the Board should substitute its
judgment for the judgment of the management of the
S] Jones acknowledged that, in the absence of Fast, Mitchell, a
national executive committee member , expressed as his opinion
that someone was transferring Fast to New York in the hope that
Fast would quit I find this expression of personal opinion does not
detract from the action taken by the committee and is of no
consequence
34 I find no merit in General Counsel's contention that AGVA
was under the impression that it would not have to contend with
the charges previously filed by Fast, which were still pending
awaiting the Board ' s decision on the jurisdictional issue There is
no specification of violation of Section 8(a)(4), or its equivalent, in
the pleading herein
295-269 0-69-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. I am unable to agree that this is either the function
of the Board, or a function which the Board would
ordinarily exercise. It has been repeatedly stated that an
individual may be discharged for any reason, or no reason,
provided only that the discharge is not motivated by
reasons proscribed by the Act.
I find there is not a scintilla of evidence linking the
discharge of Fast in 1965 with the McClellan Committee
investigation of 1962, as alleged. I find no credible
evidence of probative value to support the allegation that-
Fast was discharged by reason of activities which would
preserve and promote employee rights guaranteed under
Section 7 of the Act. Accordingly, I will recommend
dismissal of the complaint in Case 12-CA-3327.
F. The Alleged Closed-Shop Agreements
In Case 12-C B-647 it is alleged, and the answer therein
does not deny, that since on or about April8, 1962,
Respondent has entered into, has maintained, is
maintaining, and is giving effect to collective-bargaining
agreements, known as minimum basic agreements, with
employers identified, and others unidentified, all of whom
are engaged in commerce, containing the following
provisions, inter alga:
2. AGVA SHOP: The Employer agrees that all
Artists whose services he uses, and all Artists
employed by him or his representatives, directly or
indirectly, will be members of AGVA in good
standing, and will remain such members in good
standing through out their employment.
3. AGVA MEMBERSHIP: AGVA agrees that it is
an open union and will admit to and retain in
membership any Artist the Employer wishes to
employ subject to the Constitution and By-Laws,
Rules and Regulations of AGVA with the exception of
persons suspended or expelled from AGVA or marked
Unfair by AGVA or its affiliated organizations in the
Associated Actors and Artists of America, or persons
who are guilty of conduct unbecoming a union
member. The Employer agrees not to employ or
continue the employment of persons suspended or
expelled as above provided, and further agrees that he
will not require any Artist to work with any other
Artist unless each and every such Artist is a member
in good standing of AGVA.
4. AGVA CONTRACTS: All contracts of
employment shall be on or shall be deemed to be on
AGVA Standard Form of Artists Engagement
Contract which at all times shall be a pay or play
contract. Nothing herein shall prevent any Artist from
negotiating better terms and conditions of
employment than those contained in this Agreement
or in the Standard Form of Artists Engagement
Contract. In cases of direct booking, the Employer
agrees to execute the AGVA Standard Form of Artists
Engagement Contract with all Artists engaged by him,
before the commencement of rehearsals or
performances, in triplicate, one copy for the
Employer, one copy for the Artists, and to deliver one
copy to AGVA within forty-eight (48) hours of such
execution. In cases where an Artist is not employed
directly, the Employer shall employ Artists only
through an AGVA Franchised Agent.
It is undisputed that the AGVA standard form of artist
engagement contract referred to in the minimum basic
agreement, as set forth in paragraph 4 of said agreement,
and set forth supra, contains, inter alga, the following:
4. IT IS A CONDITION OF THIS AGREEMENT THAT
THE ARTIST BE A MEMBER OF AGVA IN GOOD
STANDING UPON THE EXECUTION HEREOF AND SHALL
REMAIN IN GOOD STANDING FOR THE DURATION OF
THIS CONTRACT. The parties jointly and severally
agree that the Artist's obligations hereunder are
subject (a) to the Artist's prior obligation to AGVA as
a member thereof, (b) to AGVA's Rules and
Regulations, Constitution and By-Laws, as of the date
hereof, and (c) to the Rules and Regulations of the
AGVA Branch in whose judication the Artist
performs hereunder insofar as they are not in conflict
with those of the National AGVA.
6. The Artist authorizes the Operator to deduct
from the above-mentioned compensation such sum as
may be necessary to establish and/or maintain his
good standing in AGVA and to pay such sum to the
local AGVA representative upon demand. The
Operator shall receive from such representative and
shall deliver to the Artist, the proper AGVA receipt
therefor.
7. All the provisions of any agreement now existing
which may be entered into between the Operator and
AGVA are incorporated herein, and made a part
hereof, and shall govern the engagement of the Artist
hereunder.
It is alleged in the complaint, and undenied in
Respondent's answer, that since on or about April 8, 1962,
Respondent has entered into and has been maintaining
and giving effect to franchise agreements, referred to in
paragraph 4 of the minimum basic agreement, set forth,
supra, with various individual promoters, bookers, and
agents, including those identified herein, requiring, inter
alga, such promoters, bookers, and agents:
(a) "Before booking any actor or entertainer in the
variety field," to "make certain that act or entertainer
is in good standing with AGVA," and
(b) to "book and obtain engagements in the Variety
Field exclusively for actors or entertainers who are
members of AGVA."
On February 11, 1966, General Counsel filed a motion
for judgment on the pleadings, asserting, inter alia, that
Respondent, by answer, did not deny that it is a labor
organization within the meaning of the Act; or that it has
entered into and is a party to the said collective-bargaining
agreements with the eight named hotels and/or motels; or
that such agreements and individual contracts of
employment contained unlawful closed-shop provisions; or
that it has entered into and is a party to franchise
agreements with the two named agencies as agents; or that
such franchise agreements contained unlawful closed-
shop provisions. General Counsel acknowledges that
Respondent denied, for wan, of knowledge, the allegations
appearing in paragraphs 3, 4, and 5 of the complaint,
alleging that 8 named hotels and motels meet the Board's
jurisdictional standards and are thereby engaged in
commerce within the meaning of the Act. General Counsel
correctly asserts that, in October 1963, the parties
submitted the question of jurisdiction directly to the
Board, by stipulation. It was stipulated that five of the
eight hotels and/or motels named in the complaint meet
the Board's standard for asserting jurisdiction over hotels,
namely: Fontainebleau, Americana, Deauville, Eden
Rock, and Carillon Hotels, all in the Miami and Miami
AMERICAN GUILD OF VARIETY ARTISTS 469
Beach, Florida, area. It was also stipulated, based upon
agreed commerced facts, that six other hotels in the Miami
and Miami Beach, Florida, area-Sherry Frontenac,
Casablanca, Crown, Saxony, Sans Souci, and Versailles
hotels-have collective-bargaining agreements with
Respondent and meet the Board's standard for asserting
jurisdiction over hotels. In addition, Respondent
stipulated that it has the same collective-bargaining
agreements with "many other hotels over which the Board
would assert jurisdiction in other parts of the country other
than the Miami, Florida, area." It was also stipulated that
to the extent that any of the material (in the stipulation) is
in conflict with the pleadings filed by Respondent, the
inconsistent position taken in the pleadings is withdrawn.
General Counsel, after noting the Board's assertion of
jurisdiction, which I have found, supra, urges that no issue
remains as to whether Respondent is a party to the
collective-bargaining agreements with employers who
meet the Board's standard for asserting jurisdiction, or
whether Respondent gives effect to such agreements
either directly through the employer who is a party to such
agreement or through an agent with whom Respondent has
a franchise agreement. Respondent does not dispute the
existence of the agreements or their content.
Concluding Findings
At the outset of the hearing, General Counsel's motion
for judgment on the pleadings was granted to the extent
that the parties agreed that there was no dispute as to the
facts, and reserved ruling as to the question of whether the
agreements constituted closed-shop agreements and were
violative of Section 8(b)(1)(A) and (2) of the Act.
It is undisputed that no evidence was submitted, either
in the stipulation of the parties submitting the
jurisdictional question to the Board, or in the within
hearing, which would establish that the Golden Triangle
Restaurant, Inc., the Tampa International Inn, Inc., d/b/a
International Inn, the Outrigger Inn of St. Petersburg,
Inc., d/b/a Outrigger Inn, or Hawaiian Village Restaurant,
was a party to the agreements complained of. Therefore I
will recommend that these identities be stricken from the
listing of "Parties to the Contract."
Neither General Counsel nor Respondent treats with the
question of whether the agreements referred to and
partially set forth, supra, are violative of the Act, in its
brief. Respondent has filed no response to General
Counsel's motion. Respondent asserted, at the outset of
the case, that it recognized that a closed-shop agreement is
violative of the Act, that the agreements speak for
themselves and are the best evidence of what they contain,
and that it was for the Trial Examiner to make his own
decision as to whether or not they constitute a closed-shop
agreement.
In the stipulation submitted to the Board in October
1963, the parties assert, inter alga: that AGVA has an
active membership of approximately 13,500; that there
were approximately 2,500 minimum basic agreements in
existence during the period in question, of which
approximately 2,000 cover theater, night club, and hotel
engagements, with the remaining 500 being divided into
two groups, i.e., the outdoor group (circuses, fairs, etc.)
and club-date contracts covering one-night engagements
for private organizations; in addition there are
approximately 100,000 individual artist-engagement
contracts entered into annually between performers and
employers on an AGVA standard form of contract. It is
undisputed that the minimum basic agreement was
entered into on various dates, with named hotels, from
November 1955 to and including August 28, 1963. It is
reasonable to infer that new agreements are being entered
into, and many agreements are being maintained and
given effect containing the language complained of.
Among the affidavits in support of the stipulation
entered into by the parties in October 1963 is one by
Bobby Faye, dated October 8, 1963, in which he describes
himself as national administrative secretary of
Respondent , at that time . Faye, in addition to asserting the
facts set forth , supra, asserts that there are some 900
theatrical agents who are parties to agreements with
AGVA, establishing a code of fair practices for this aspect
of the industry . Faye describes as a three - sided industry
the relationship between employer , agent , and performer,
with employers , in several categories , executing minimum
basic agreements containing the union - security provision
complained of, while agents execute a code of fair
practices agreement , or franchise agreement. I find
significant the following statement of Faye:
A strict application of the National Labor Relations
Act would result in over 96 percent of all employment
under AGVA contracts coming under collective-
bargaining agreements which might well be invalid
under , or contrary to the provisions of, the Labor
Management Relations Act, in that almost all
contracts are on a pre - hire basis , and the Union's
security clauses do not conform with Section 8 (a)(3) of
the Act.
However, this standard was established over the
years as a result of and in reliance upon a number of
decisions of the National Labor Relations Board;
Federal courts, following them, have declined
jurisdiction over various parts of the entertainment
industry including variety, and State courts have also
relied on these decisions.
I believe that it may be assumed that the major
purpose of the Labor Management Relations Act, as
amended, is the achievement of industrial stability. In
the type of industry hereinabove described, it has
been demonstrated, and it is the opinion of many
experienced experts in the industry including your
deponent, that a strict application of the provision of
the Act will result in complete chaos and instability
It is obvious that Respondent's contention that it should
be exempt, because of the peculiarities of its industry, is
more appropriately to be addressed to Congress, which is
vested with authority to determine the need for and
promulgation of Federal laws, and establishment of
national policy in the form of law. The province of the
Board is obviously restricted to carrying out such mandate
as it may be given by Congress.
In the Red Star case35 the court held the execution of a
contract containing a forbidden union-security clause
constitutes an unfair labor practice This is so because the
existence of such an agreement without more tends to
encourage membership in a labor organization. The
individual employee is forced to risk discharge if he defies
the contract by refusing to become a member of the Union.
It is no answer to say that the Act gives him a remedy in
the event that he is discharged. The Act requires that the
as Red Star Express L ines of Auburn, Inc v N L R B , 196 F 2d
78, 81, enfg 93 NLRB 127.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee shall have freedom of choice, and any form of
interference with that choice is forbidden.
In the Cavendish Record case3° the Board held:
It is obvious that this provision exceeds the limits of
union security permitted by the provisos to Section
8(a)(3) of the Act as it excludes from initial
employment musicians who are not members in good
standing of the Intervenor. Certainly, under
established authority, such illegality is not cured by
vague language in the contract that the closed-shop,
provision shall be applicable where "valid and
subsisting laws do not render it unlawful." It is also
settled law that,a union-security provision that does
not conform to statutory requirements, such as that
involved herein, not only discriminates against
employees in violation of Section 8(a)(3) of the Act and
coerces them in the exercise of their guaranteed
rights in violation of Section 8(a)(1), but also
constitutes unlawful assistance to the Union by the
employer within the meaning of Section 8(a)(2).
In the Perry Coal case37 the Board held:
The Trial Examiner found, and we agree, that the
unqualified requirement of UMW membership
contained in the 1941 District Agreement between the
Illinois Coal Producers Association and UMW, an
integral part of UMW's National Bituminous Coal
Wage Agreement of 1950 as subsequently amended,
which was extended to Peabody's O'Fallon and
Millstadt mines on October 1, 1959, provided for an
unlawful closed shop. For the reasons set forth in the
Intermediate Report, we agree that this provision was
unlawful and was not amended, modified, or nullified
by the national contract. Moreover, we find that the
union-security clause in the national contract itself,
requiring that "As a condition of employment
employees shall be, or become, members of the
[UMW] to the extent and in the manner permitted by
law," also provides for an unlawful closed shop. It is
well settled that where, as here, a contract contains
an unlawful provision, a general "savings clause" that
does not specify to what extent the provision is
intended to be limited will not purge such a provision
of its illegal character.
Accordingly, for the reasons stated, I find that
Respondent, by executing, maintaining, and giving effect
to the agreements described, supra, requiring membership
in Respondent as a condition of employment and other
closed-shop provisions, Respondent did attempt to cause
and is attempting to cause the employers described herein
and other employers engaged in commerce within the
meaning of the Act to discriminate against employees in
violation of Section 8(a)(3) of the Act and that such conduct
is violative of the provisions of Section 8(b)(2) of the Act. I
further find that by such conduct Respondent did restrain
and coerce, and is restraining and coercing, employees in
the exercise of their rights guaranteed in Secticit 7 of the
Act and that such conduct is violative of the provisions of
Section 8(b)(1)(A) of the Act.
G. Alleged Dental of Membership to Ernie Fast
At the outset of the hearing, General Counsel amended
paragraph 10 of the complaint in Case 12-CB-647. As
amended, the complaint alleges that Respondent
terminated the membership of Ernie Fast on May 30, 1962,
and until October 1962 failed and refused to reinstate such
employee to membership. Respondent denied the
allegation.
I have found, supra, that the demise of Ernie Fast
preceded the hearing herein. The circumstances of the
suspension from membership of Ernie Fast are disclosed
solely in his pretrial statement of November 2, 1962, which
I have found was properly authenticated.
In the pretrial statement Ernie Fast relates that after he
was discharged, in February 1962, he reapplied for
membership in the San Francisco local and was reinstated
as a member.38 Inferentially, in May 1962 Fast was
advised that charges of misconduct as an employee had
been preferred against him iii the Chicago branch and
subsequently a hearing was held there. The decision of
the three-member union board was that Fast should be
suspended from membership for a period of 10 years, but
that he could continue to work with AGVA members
without paying dues. Fast identified the nature of the
charges as being that he had received certain moneys,
while employed by Respondent, which he had not remitted
to Respondent.
I have set forth, supra, in the section entitled "The
Discharge of Ernie Fast," the reasons I find it necessary to
reject the uncorroborated statements of the decedent.
Accordingly, I find in this record no evidence of probative
value requisite to support a finding that Ernie Fast was
denied membership in Respondent and as a consequence
was denied employment in his chosen profession, or that
Respondent engaged in unfair labor practices relating to
Ernie Fast, within the meaning of Section 8(b)(2) and (1)(A)
of the Act. I will recommend dismissal of the allegations in
the complaint in Case 12-CB-647 insofar as they relate to
Ernie Fast.
H. Alleged Denial of Membership to Al Fast and Hart
It is alleged that on or abiiut April 16, 1962, at the time
of their discharges, Respondent terminated the
membership of Clayton I. Hart and Al Fast, and at all
times since failed and refused to reinstate them to
membership in Respondent Union.
Hart credibly related that in June 1962, having
unsuccessfully attempted to attend the national
convention, he and Fast went to the New York branch
office and talked to one of the New York representatives,
Billy Lyons. Hart asserted that he and Al Fast requested
application forms so they could rejoin39 AGVA and were
told by Lyons that Bright, at that time national
administrative secretary, had advised that the national
representatives were not to accept any dues or
reinstatement fees from either Hart or Fast .40 Fast
" Cavendish Record Manufacturing Company, 124 NLRB
1161,1168
" Perry Coal Company, 125 NLRB 1256
38 1 find it reasonable to infer , from the entire record as a whole,
that AGVA members, while employe& by AGVA, issued their own
membership cards and paid no dues Upon termination of
employment , by AGVA, they reapplied for membership and paid
a withdrawal fee
" There is no evidence Hart ever held a membership card as a
performer However , Al Fast was a performer prior to his
employment , and in a period between two periods of employment
by AGVA
90 Neither Lyons nor Bright appeared as witnesses, nor was any
explanation made of the failure to call them
AMERICAN GUILD OF VARIETY ARTISTS 471
corroborated Hart's assertions. It is undisputed that Hart
appeared and testified before the McClellan Committee on
June 21, 1962. Hart related that a week or two after his
appearance he and Al Fast went to the Tampa branch
office and talked to the AGVA branch manager, Tommy
Marlowe Cornell, and requested membership
applications.41 Hart credibly related that Cornell advised
them that Bright had issued a directive to branch
managers that they could not accept an application from
either Hart or Al Fast. The directive, in evidence, is dated
June 4, 1962, and signed by Jackie Bright, national
administrative secretary, and is addressed to all branch
managers. It contains the following:
Please be advised that if either Al Fast or Smiley Hart
attempt to ,loin or rejoin AGVA or pay initiation fee
and/or dues to your office you are to contact me
immediately and you are not to accept any application
or monies from them pending receipt of instructions
from the National Office.
Hart asserted that he asked Cornell why he was denied
membership, when anyone who walks in off the street
would not be denied membership, that Cornell responded
that there might be an error in sending the memo, and that
Cornell would call Harold Berg, the AGVA attorney. Later
Cornell advised Hart that he had talked with Berg, who
had advised Cornell that if Fast and Hart wished to join
AGVA they should submit, to the national office, a full
resume of their life's activities from the time they were out
of school, and the application would then be taken under
consideration. Hart credibly related this was an unusual
procedure, at substantial variance with normal procedure.
Hart described the normal membership application as
containing a place for the individual's name, asserts that
AGVA shall be bargaining agent in all disputes which may
arise in the entertainment field, and on the reverse side
has a space for social security number, age, stage name
and legal name, mailing address, temporary mailing
address, the period the individual has been an actor, what
type of act the individual does, and whether or not the
individual is a member of any other actor's union. Fast
substantially corroborated this testimony.
Hart asserted that, 4 or 6 weeks after his visit to the
Tampa office, he had a further conversation with Jerry
Hirsch, branch manager of the Sarasota, Florida, office.42
Hart asserted that Hirsch advised that he did not wish to
be put in the middle, that Hart knew there was a directive
out to the effect that Hirsch could not give him an
application,- and that Hirsch did not wish to jeopardize his-_
job. Hirsch then suggested hat Hart write a letter and that
Hirsch would forward it to the national headquarters. Hart
asserted that he complied with this request but never did
receive any answer to his letter of September 6, 1962, in
which he requested that he be notified of the requirements
for him to become an active member of AGVA.
Hart, who acknowledged that AGVA does not permit its
employees to perform as actors while they are engaged as
employees of AGVA, credibly related that in the period of
1948 to 1952, while he was manager of the Hotel
Bostonian, in Boston , Massachusetts, he did, on occasion,
act as master of ceremonies, in introducing various acts in
a show presented in the hotel. Hart asserted the hotel
employed a minimum of four people each week, for at least
40 weeks each year, and acknowledged that his
functioning as a master of ceremonies was not continuous
but intermittent, and his compensation was as manager,
without additional compensation for his master of
ceremonies duties.
Al Fast related that, in July 1962, he obtained an
agreement for employment "to lay out a show and present
the show so many times a night," with Louis Caggiano,
whom he identified as the owner of Chez Enterprises, Inc.,
operator of Chez Louie Nightclub and Lounge, in Tampa.
Fast asserted that after obtaining the contract, he took a
copy to Cornell, Tampa AGVA manager, and advised
Cornell he wanted his membership card. Cornell
responded that if Caggiano employed Al Fast, Cornell
would pull the show out. On August 3, 1962, Cornell
advised Caggiano on the stationery of AGVA that AGVA
was in receipt of a contract between Caggiano and Al Fast,
that Cornell had orders from Lou Smolev, Harold Berg,
Bobby Faye, and Jackie Bright, that Al Fast could under
no circumstances join AGVA. The letter then asserts:
We therefore, cannot accept or recognize said
contract. According to our Minimum Basic
Agreement with you, Clause 2 states you will hire only
AGVA members, in good standing. We also have an
agreement with the A. F. of M. and they will support
our decision. If you disregard this directive; we will
have no alternative but to place your establishment on
the National Unfair List.43
It is undisputed that Al Fast was reinstated as an
employee of AGVA on June 22, 1964 . It is undisputed that
he could not have engaged in the acting profession while
he was so employed. There is no evidence that he was
refused membership in AGVA after his discharge on
July 12,1965. -
At the outset of the case, counsel for Respondent
asserted that Respondent denied, as set forth in its
answer, that it had terminated the AGVA membership of
Hart and Al Fast. At the conclusion of the case
Respondent was asked, in connection with its motion to
dismiss, what testimony there was by Respondent which
disputed the testimony of Hart and Al Fast, relative to the
refusal to issue them membership cards. Respondent
answered that the position of the Union was that these
men were clearly unfit to hold cards in the Union because
of the testimony given to the McClellan Committee
relative to the bribe allegedly paid by Hart to Bright.
General Counsel, by way of reply, noted that the
restriction on membership was issued by Bright on June 4,
41 Hart related that when he was branch manager he gave
applications to any one wishing to become a member, and that
they were required to pay a minimum of $25 as a down payment
on initiation fees and dues . I find of no consequence Hart's
obvious error in arithmetic , in asserting that the $25 was a down
payment and the applicant had 90 days to pay the balance of $100
"which amounted to a $150 initiation fer, and dues, which were at
the rate of $3 per month." Hart asserted the application was sent
to the membership department, who would return a slip verifying
the amount collected and apply it to the initiation fee and show
the balance due, whereupon the regional office would then make
out a membership card. Actually, it is inferred that the
membership card was made out immediately , as Hart also
testified that the person who paid $25 was permitted to go to work
immediately
92 Respondent's objection to the receipt of this testimony on the
ground that Hirsch was demised resulted in my reserving ruling
In view of my finding relative to Board precedent , on receipt of
evidence involving individuals who have died, or are too ill to
testify, supra, the objection is overruled
42 In view of the evasive answers of Fast regarding this
purported agreement relative to how, where , and by whom it was
prepared , and since the primary question to which it relates is one
of loss of earnings , determination of the validity of this agreement
is best left to supplementary proceedings I accordingly am not
finding such an agreement was executed. Caggiano did not appear
as a witness
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, some 8 days prior to the opening of the McClellan
Committee hearings.
In his sworn statement of October 10, 1963, submitted
as part of the stipulation of the parties, Bobby Faye
asserted: AGVA is an open union and its membership
books are open to all who perform or who indicate
willingness and qualification to perform. The membership
has never been restricted by any system of exclusion.44
Contentions of the Parties and Concluding Findings
Respondent, in its brief, asserts that Hart's sole claim to
eligibility for AGVA membership was that he introduced
some acts in a Boston hotel, a task for which he received
no pay. This assertion is inaccurate absent some evidence
that it was not part of his duties. Respondent then urges
that having been fired as AGVA employees for bribing a
union official, Hart and Fast were considered by the Union
to be unfit for membership. Respondent further urges that
they were advised to submit complete personal histories
and had failed to do so. There is no evidence that this was
a standard requirement I find no merit in the contention
that Hart and Fast should have been required to submit
more information than that required of all applicants for
membership.
Respondent urges that Hart's criminal record rendered
him ineligible, by reason of enactment of a constitutional
provision that "No person who has been convicted of a
felony shall be, or be eligible to be an officer or Board
member, nor shall he be in the employ of the AGVA,
unless for reasons of justice the National Board (not the
National Executive Committee) grants a waiver of this
provision The constitutional provision obviously
does not encompass membership.
I find it unnecessary to treat extensively with
Respondent's attack upon Fast's credibility relative to his
alleged contract with Caggiano It is patent that during the
existence of the minimum basic agreement, and the other
agreements required by Respondent, a nonmember of
AGVA could not obtain employment through an agent or
employer in the variety entertainment field. The law does
not require evidence of a vain act. Evidence of efforts of
Hart and Fast to obtain employment are not a prerequisite
to a finding that denial of membership, by Respondent,
precluded the possibility of their obtaining such
employment, under the circumstances established herein.
Accordingly, I find that Respondent's refusal to permit
Hart and Al Fast to apply for and obtain membership in
Respondent, on and after June 4, 1962, while it maintained
unlawful closed-shop agreements, constituted unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act. However, it is patent that when Al Fast was
reemployed on June 22, 1964, he was no longer eligible for
employment in the entertainment field, and the condition
found to exist in the preceding period terminated upon his
reemployment. I further find that there is no evidence that
he either applied for, or was denied, membership after his
termination as an employee of Respondent on July 12,
1965.
In making the foregoing finding relative to Hart, whose
activities as a performer in the variety entertainment field
were extremely limited, I am cognizant that evidence
reflecting loss of earnings may be wholly speculative, in a
subsequent supplemental proceeding In my view, such a
contingency is an insufficient ground to deny the
customary order
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States,and such of them as
have been found to constitute unfair labor practices tend
to lead to labor disputes obstructing commerce and the
free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged, and is
engaging, in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
affirmative action45 designed to effectuate the policies of
the Act.
In the Petersen case46 the Board said, at page 972: "An
effective remedial order can be issued only against
employers and labor organizations who are named as
Respondents in a case, and only those persons against
whom charges are filed may be made respondents to a
complaint." The Board held, at page 975:
It appears from the record that Respondent District
Council and certain of its affiliated locals have
executed similar unlawful contracts with individual
Employers who were not named as Respondents
herein and who are not members of Respondent
Associations. In these circumstances we conclude
that it was and is the policy of Respondent Unions to
seek to include similar unlawful provisions in all their
contracts with Employers, and that, unless restrained,
similar violations of the Act with respect to other
employers not involved herein may reasonably be
anticipated. In addition, discrimination against
employees goes to the very heart of the Act and
reflects a purpose by unlawful means likely to be
executed in the future to thwart freedom of choice by
employees as to union representation. Accordingly, in
order that the preventive purpose of our Order may be
coextensive with the threat of future violations, we
shall order that all Respondents cease from in any
manner infringing upon the rights of employees as
guaranteed in Section 7 of the Act, and that
Respondent Unions cease entering into and
94 The requirements for membership in June or July 1962, as
provided in the constitution and bylaws , are obscure Article VI
(application for membership ) of the constitution and bylaws, as
amended on an indefinite date in 1963 , provides
No person shall become a member of the Association unless
and until lie shall sign an application which shall
substantially provide that he agrees to be bound by the
Constitution of the Association and by such amendments
thereto as may be lawfully made , and by the By -Laws, Rules,
Regulations and Orders existing or thereafter lawfully
enacted
Said application may contain such further terms and
provisions and such further information as the National
Board may prescribe
All applications for membership shall be subject to the
approval of the Board or of the Executive Committee
45 The power to command affirmative action is remedial, not
punitive, and is to be exercised in aid of the Board ' s authority to
restrain violations and as a means of removing or avoiding the
consequences of violations where those consequences are of a
kind to thwart the purposes of the Act Consolidated Edison Co of
New York, Inc v N L R B , 305 U S 197,236
4' Petersen Construction Corp , 128 NLRB 969 , enfg 336 F 2d
459 (CA 9)
AMERICAN GUILD OF VARIETY ARTISTS 473
maintaining contracts with any Employer over which
the Board would assert jurisdiction which contain
unlawful hiring provisions, or otherwise causing such
Employer to discriminate.47
It will be recommended that Respondent cease and
desist from entering into, executing, enforcing, or
maintaining in effect any existing, or any extension,
renewal, modification, or supplement, or superseding,
agreement containing: the prehire-membership, or closed-
shop, requirements and requiring an AGVA standard form
of artists engagement contract, as contained in the
minimum basic agreements, with any employer over whom
the Board would assert jurisdiction; or requiring that an
artist be a member of AGVA in good standing, and remain
so, as a condition of employment, or that an operator is
authorized to deduct, from earnings, such sums as may be
necessary to establish or maintain good standing, in
AGVA, of any artist, as contained in the AGVA standard
form of artists engagement contract, with any artist; or the
requirement that an act or entertainer be in good standing
with AGVA, and to book and obtain engagements
exclusively for such members, as contained in franchise
agreements, with any promoter, booker, or agent, unless
such agreement has been authorized as provided in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
It will be recommended that Respondent cease and
desist from encouraging membership in Respondent, or
any other labor organization of artists who are employees,
by causing employers to discharge or refuse to hire
nonmembers, or by causing promoters, bookers, or agents
to refuse to perform their customary services for
nonmembers of said Respondent.
With respect to affirmative action to be taken by
Respondent, I shall recommend that it post a notice,
encompassing the recommended action, at its
headquarters, and in each regional, branch, and service
office, and, in addition, mail a copy to each of its members
and to the named parties of the contract.411
It will be further recommended that Respondent make
Hart whole for any loss of earnings he may have suffered,
as a result of Respondent's having denied him
membership, from June 4, 1962, to a date 5 days after
notification by Respondent, to the Regional Director for
Region 12, and to Clayton I. Hart, that it will comply with
the Recommended Order herein, and make whole Al Fast
for any loss of earnings he may have suffered, by reason of
Respondent's denial of membership to him, between the
dates of June 4, 1962, and June 22, 1964, said sums to be a
sum equal to that which each would have earned as an
artist, less the net earnings of each during said period, to
be computed on a quarterly basis in the manner
established in N.L.R.B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S. 344. Interest on backpay shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.49
In view of the nature of the unfair labor practices
committed, the commission of similar and other unfair
labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to
cease and desist from in any other manner infringing upon
rights guaranteed to employees by Section 7 of the Act,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section
8(a)(3) of the Act, as modified.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer, as defined in Section 2(2)
of the Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. American Guild of Variety Artists, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Ernie Fast, in February 1962, and
refusing thereafter to reemploy him on or before June 12,
1964, and by discharging Clayton I. Hart, on April 16,
1962, and thereafter refusing to reemploy Hart, and by
discharging Al Fast, on April 16, 1962, and thereafter
refusing to reemploy him on or before June 22, 1964, and
by discharging Al Fast on July 12, 1965, Respondent has
not engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By executing, maintaining , and giving effect to
minimum basic agreements, AGVA standard form of
artists engagement contracts, and franchise agreements,
requiring membership in AGVA, and requiring the
payment of such sums as may be necessary to establish
and maintain good standing in such organization, as a
condition precedent to employment, or as a condition of
retention of employment, in the variety entertainment
field, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Act.
5. By failing and refusing to grant membership, in
AGVA, to Clayton I. Hart, at all times on and after June 4,
1962, and to Al Fast from June 4, 1962, to June 22, 1964,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A) of the Act.
6. Respondent has not committed unfair labor
practices, within the meaning of Section 8(b)(2) and (1)(A),
by failing or refusing to grant membership in AGVA to
Ernie Fast.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby recommend that American Guild of Variety
Artists, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Entering into, executing, enforcing, or maintaining
in effect, any existing, or any extension, renewal,
modification, or supplement, or superseding, agreement
containing: a prehire membership, or closed-shop,
requirement, or requiring an AGVA standard form of
40 See also Local 612, Teamsters (Denton Truck Line, Inc ), 146
NLRB 498, Local 825, Operating Engineers, et al (United
Engineers & Constructors Inc), 138 NLRB 279. J W Bateson
Company, Inc, 134 NLRB 1654
41 However, General Counsel has not requested an order
covering refund of initiation fees and dues illegally exacted, as
granted in the Petersen case, supra Absent some evidence
identifying members subjected to coercion such relief does not
appear appropriate
49 Local No 4, United Slate, Tile and Composition Roofers,
Damp and Waterporoof Workers Association, AFL-CIO (Avon
Sheet Metal Co), 140 NLRB 384
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
artists engagement contract , as presently contained in the
minimum basic agreements , with any employer over whom
the Board would assert jurisdiction ; or requiring that an
artist be a member of AGVA in good standing , or remain
so, as a condition of employment , or that an operator is
authorized to deduct from earnings such sums as may be
necessary to establish or maintain the good standing in
AGVA of any artist, as contained in the AGVA standard
form of artists engagement contract , with any artist; or the
requirement that an act or entertainer be in good standing
with AGVA, and to book and obtain engagements
exclusively for such members with any promoter, booker,
or agent, as presently contained in franchise agreements,
unless such agreement has been authorized as provided in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Encouraging membership in the Respondent Union,
or in any other labor organization of employees , by causing
employers to discharge , or refuse to hire nonmembers, or
by causing promoters , bookers, or agents to refuse to
perform their customary services for nonmembers of said
Respondent.
(c) In any other manner restraining or coercing
employees in the right to self-organization , to form labor
organizations , to bargain collectively through
representatives of their own choosing and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities except, where lawful, to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Clayton I. Hart and Al Fast for any loss
of earnings they may have suffered as a result of
Respondent 's having denied membership to them, in the
manner and to the extent set forth in the section entitled
"The Remedy" herein.
(b) Notify all named parties to the contract , minimum
basic agreements and franchise agreements , and all
members of AGVA, signatories of AGVA standard form of
artists engagement contracts , by mailing a copy of the
attached notice marked "Appendix," that the provisions
herein found to be violative of the Act will be given no
further force or effect, and that all Artists, as employees,
are free to become or remain , or to refrain from becoming
or remaining , members of a labor organization of their own
choosing.
(c) Post at its headquarters , and in each regional
branch , and service office, including all places where
notices to members are customarily posted, copies of the
attached notice marked "Appendix."51 Copies of said
notice, to be furnished by the Regional Director for
Region 12,5' after being duly signed by Respondent's
representatives , shall be posted by the Respondent, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including each of Respondent's
bulletin boards . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of the receipt of this
Trial Examiner 's Decision, what steps the Respondent has
taken to comply with the foregoing Recommended Order.
IT IS FURTHER RECOMMENDED that unless , within 20
days from the date of the receipt of this Trial Examiner's
Decision , the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing
Recommended Order52 the National Labor Relations
Board issue an order requiring Respondent to take the
aforesaid action.
IT IS FURTHER RECOMMENDED that the complaints in
Cases 12-CA-2393-1 and -2, 12-CA-3327, and
12-CB-647, to the extent the last numbered case relates to
Ernie Fast, be dismissed.
so In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words " a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
51 Since the union membership is in excess of 13,000, the
copies required under subparagraph (b) of this subsection shall be
prepared at the Respondent's expense
52 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL MEMBERS OF AMERICAN GUILD OF
VARIETY ARTISTS, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT enter into, execute, enforce, or
maintain in effect , any existing , or any extension,
renewal, modification , or supplement , or superseding,
agreement containing : a prehire-membership, or
closed-shop, requirement, or requiring an AGVA
standard form of artists engagement contract, as
presently contained in the minimum basic
agreements, with any employer over whom the Board
would assert jurisdiction ; or requiring that any artist
be a member of AGVA in good standing , and remain
so, as a condition of employment, or that an operator
is authorized to deduct from earnings such sums as
may be necessary to establish or maintain the good
standing in AGVA of any artist, as presently
contained in the AGVA standard form of artists
engagement contract , with any artist; or the
requirement that an act or entertainer be in good
standing with AGVA, and to book and obtain
engagements exclusively for such members , with any
promoter , booker, or agent , as presently contained in
franchise agreements , unless such agreement has
been authorized as provided in Section 8(a)(3) of the
Act, as modified by the Labor-Managen ' nt Reporting
and Disclosure Act of 1959.
WE WILL NOT encourage membership in American
Guild of Variety Artists, AFL-CIO, or in any other
labor organization, by causing employers to discharge
or refuse to hire nonmembers , or by causing
promoters , bookers, or agents to refuse to perform
their customary services for nonmembers.
TAFT BROADCASTING CO.
WE WILL NOT in any other manner restrain or
coerce employees in the right to self-organization, to
form labor organizations, to bargain collectively
through representatives of their own choosing and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization, as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL make Clayton I. Hart and Al Fast whole
for any loss of earnings either may have suffered by
reason of our denial of membership to them.
All artists, engaged as employees, are free to become or
remain, or to refrain from becoming or remaining,
members of American Guild of Variety Artists, AFL-CIO,
except to the extent this right may be affected by an
agreement, where lawful, requiring membership in a labor
organization as a condition of employment, as authorized
by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
AMERICAN GUILD OF
VARIETY ARITISTS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711.
Taft Broadcasting Co., WDAF AM-FM TV anal
American Federation of Television and
Radio Artists , AFL-CIO, Kansas City Local.
Case 17-CA-2800.
March 20,1967
DECISION AND ORDER
On July 13, 1966, Trial Examiner Paul E. Weil
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 attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
I The Respondent has requested oral argument As the record,
the Trial Examiner's Decision, and the exceptions and briefs
475
Decision together with supporting briefs. The
Respondent also filed an answering brief.I
The National Labor Relations 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
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent with this
Decision and Order.
The Respondent excepts to the Trial Examiner's
conclusion that it violated Section 8(a)(5) and (1) of
the Act by unilaterally changing existing terms and
conditions of employment while negotiating with the
Charging Party, hereinafter called the Union, for a
new collective-bargaining agreement. In reaching
this conclusion, the Trial Examiner found that the
parties had not bargained to an impasse on the
issues encompassed by the Respondent's changes.
The record shows the following facts:
On April 1, 1964, Respondent, Taft Broadcasting
Co., acquired ownership of WDAF AM-FM TV and
assumed its predecessor's collective-bargaining
agreement with the Union. In May 1965, the
Respondent sent the Union a notice of termination of
the aforementioned agreement effective October 1,
1965, and requested bargaining for a new contract.
Pursuant to this request the parties met for the first
time on June 4, 1965. Neither side had proposals
ready. At their second meeting, which was held on
June 24, the Respondent furnished the Union its
proposal for a new contract. Apparently, this
proposal, which was discussed at the third meeting
of the parties on August 24, represented a
substantial departure from the agreement then in
effect. The Company wanted complete
interchangeability with respect to categories of
employees and between broadcasting media without
the limitations imposed by the existing agreement.
The Company also stated that it wanted no limitation
on the amount of prerecording of broadcast material.
Under the old agreement prerecording was limited to
not more than 5 hours per medium (AM, FM, TV) per
broadcast day.
The parties next met on September 9, 1965. At
that time the Union furnished the Company its
proposal for a new agreement which was,
essentially, a carryover of the old contract with
increases in wage rates and fringe benefits and with
certain deletions in the duties of artists. The parties
met three more times during September. Some
agreement was reached on disputed issues (e.g.,
preparation time, outside employment) where no
change in the contract was involved. However, there
was no agreement on or discussion of those terms of
the Company's proposal dealing with interchange
adequately set forth the issues and positions of the Respondent,
its request is hereby denied.
163 NLRB No. 55