American Guild of Variety Artists

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 521 (N.L.R.B. 1967)

AMERICAN GUILD OF VARIETY ARTISTS 521
American Guild of Variety Artists, AFL-CIO and
Variety Artists Representatives Union. Cases
23-CA-2146 and 23-CA-2410
June 30, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 21, 1967, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceed-
ing, finding that the 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. The Trial
Examiner also found that the Respondent had not
engaged in other unfair labor practices as alleged by
the complaint and recommended that those allega-
tions of the complaint be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , 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.
i In the absence of exceptions thereto, we adopt pro forma the Trial Ex-
aminer's finding that Leon Cornman was not a supervisor within the
meaning of the Act.
31, 1965 , by Variety Artists Representatives Union
(herein called the Charging Union or VARU ) against
American Guild of Variety Artists, AFL-CIO (herein
called AGVA or Respondent). Pursuant to such charge,
the General Counsel of the National Labor Relations
Board, through the Regional Director for Region 23 of
the Board , on November 16, 1965, issued his complaint
which alleged , in essence , that on or about August 3,
1965, the Respondent discharged its employee Joseph
Savarin , and thereafter failed and refused to reinstate
him, because of his membership in, and activities on be-
half of, VARU, thereby violating Section 8 (a)(3) and (1)
of the National Labor Relations Act, as amended (herein
called the Act). The complaint also alleged that since on
or about June 3, 1965, the Respondent independently
violated Section 8(a)(1) of the Act by engaging in acts and
conduct, more fully detailed herein , which interfered
with, restrained , and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act. By its duly
filed answer , the Respondent denied substantially all of
the allegations in the complaint except admitting that it
was a labor organization engaged in representing employees
for the purpose of collective bargaining with various em-
ployers, and that it did discharge the said Savarin on or
about August 3, 1965.
The case came on for hearing, and was heard by Trial
Examiner Robert Cohn on May 24 through June 2, 1966,_
in Houston , Texas, with all parties represented. How-
ever, before Decision was issued (indeed, before briefs
were filed or scheduled oral argument was held), the said
Regional Director , on June 21, 1966, issued his com-
plaint in Case 23-CA-2410, and moved for the con-
solidation of the two cases.' The substance of the second
complaint was that, on or about November 29, 1965,
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging its employee Leon A. Cornman, and
thereafter failed and refused to reinstate him, because of
his membership in, and activities on behalf of, VARU.
Respondent by its duly filed answer , admitted the
dsicharge but denied the commission of any unfair labor
practices.'
On June 24 , 1966, 1 issued a telegraphic order granting
the General Counsel's motion to consolidate. After
several postponements , hearing in Case 23-CA-2410
was commenced in Houston on November 29, 1966, and
concluded on December 1, 1966. At each hearing all
parties were given full opportunity to participate, to ex-
amine and cross-examine witnesses , and to state their
position on the issues . Counsel for General Counsel and
for the Respondent , participated in oral argument before
the Trial Examiner in Washington , D.C., on January 5,
1967. A brief has been received from counsel for the
Respondent , which has been duly considered.
Upon my consideration of the entire record in these
cases, including the briefs and arguments of counsel, and
upon my observation of the witnesses and their demeanor
while testifying , I make the following:
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROBERT COHN , Trial Examiner : Case 23-CA-2146
arises upon a charge of unfair labor practices filed August
' The charge in Case 23-CA-2410 was filed May 19 , by VARU, and
served upon the Respondent on May 23, 1966
2 In each of its answers , Respondent affirmatively pled that each al-
leged discriminatee was a supervisor However, it did not press nor brief
this point , nor offer any evidence thereon, regarding Savann, and I there-
fore deem the issue waived as to him However , evidence was adduced
on this issue regarding Cornman, and, as hereafter appears , I have con-
sidered and resolved this issue as respects him.
166 N LRB No. 67
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent , a national labor organization with
principal offices located in New York, New York, and
maintaining 28 branch offices in the United States and
Canada, is, and has been at all times material , engaged in
representing employees in the entertainment industry for
the purpose of collective bargaining on their behalf with
their employers . During an annual period, Respondent
receives per capita dues and initiation fees valued in ex-
cess of $1 million from its members located throughout
the United States and has negotiated and maintained col-
lective-bargaining agreements with employers having an
annual gross in excess of $500,000, and purchased goods
in excess of $50,000 from outside the State in which they
are located.'
I find that Respondent is. and has been at all times
material herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
and the Regional Director issued his Decision and
Direction of Election on January 17, 1966.6 Meanwhile,
pursuant to Jones' recommendation, Savarin was
suspended by Bailey on August 3, 1965. This suspension
was confirmed at the next meeting of AG V A's National
Executive Committee in August 1965, and the committee
voted to discharge Savarin as of the date of his suspen-
sion for "gross negligence , dereliction of duty and insub-
ordination " 7
Cornman was relieved of his duties as branch manager
in Dallas on November 29, 1965, and thereupon ter-
minated by the Respondent assertedly because of "gross
negligence , dereliction of duty and insubordination " H
The General Counsel argues that the asserted reasons
for termination were pretextual and that the real reason
therefor was the two men's preeminence in the organiza-
tion of the Charging Union, to which the Respondent was
opposed
B Events in Dallas and Houston, August 1964 through
March 1965
II. THE LABOR ORGANIZATION iNVOI VED
The complaint (Case 23-CA-2410) alleges, the answer
admits, and I find that Variety Artists Representatives
Union is a labor organization as defined in Section 2(5) of
the Act 4
Ili. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting of the /.s sues
At all times material, the two alleged discriminatees,
Leon Cornman and Joseph Savarin, were Dallas branch
manager and Houston representative, respectively, of
AGVA. During the spring of 1965, the two men, being
dissatisfied with their wages and working conditions,
commenced organization of the Charging Union among
their fellow representatives and branch managers in
AGVA offices located throughout the United States.
Such organizational activities met with intense opposition
among some of the executive officers of AGVA, particu-
larly, as reflected by this record. Dick Jones, then
assistant national administrative secretary ' However,
Savarin and Cornman persisted in their organizational ef-
forts during June and July, and apparently secured suffi-
cient authorizations to warrant the filing of a petition for
an election , although the exact date of such filing is not
disclosed by this record However, the record does dis-
close that pursuant to such petition, a hearing was held in
the city of New York in October and November 1965,
' The foregoing findings are a synthesis of credited undemed testimony
by witness Warren Bailey in the instant case , which are corroborated by
the findings (apparently based upon stipulation ) of a Trial Examiner af-
firmed by the Board, in a contemporaneous Section 8 ( a)(5) proceeding in
which the Board asserted jurisdiction 1 take official notice of this
proceeding See American Guild of Variety Artists, AFL-CIO, 162
NLRB 1416 See also the following cases involving this Respondent in
which the Board asserted jurisdiction 155 NLRB 1020 and 163 NLRB
457 See also Wirtz v American Guild of Variety Artists, AFL-CIO, 267
F Supp 527 (D C S D N Y)
See N LRB cases cited in fn 3, above
' The chief executive post of AGVA is denominated national adminis-
trative secretary, who is charged with overseeing the day-to-day opera-
tions of the Union From March 1965 until October 1965, this position
was occupied by one Warren Bailey For several months prior and sub-
sequent to Bailey 's tenure, Jones was acting national adminstrative secre-
Prior to his appointment as branch manager in Dallas
in August 1964, Leon Cornman had been branch
manager of AGVA's New Orleans office since 1960,
having been orginally employed by AGVA as a represen-
tative in the New Orleans office in 1959. He transferred
to Dallas at the urging of Johnny Woods, then the na-
tional administrative secretary of AGVA, because things
were in a "very bad mess" in the Dallas territory." That
is to say that the national office of AGVA had received
reports that the night club operators and other employers
in the area who employed AGVA members were not liv-
ing up to the standards of employment and working con-
ditions prescribed in the contracts between such opera-
tors and AGVA (called Minimum Basic Agreements, or
MBA's). This included such obvious things as rates of
pay and hours of work as well as conditions in the
dressing rooms, payment of welfare benefits, as well as
rules relating to AGVA members working with amateurs
or other non-AGVA members It was also pointed out to
Cornman by Thomas Moon, then chief of the national
franchise department of AGVA, that there was a booking
agent in Houston named Lillian McCardell who was ap-
parently operating contrary to AGVA regulations in that
she was acting as an exclusive booker for a night club or
other establishment in that area as well as booking
AGVA members to be presented on programs with non-
AG V A members, "intimidating members and club
owners, etc.""' As a result of receiving this information,
Cornman changed his plans, and instead of going directly
to Dallas to take over the branch office there, he detoured
tary and , as noted above, during Bailey ' s tenure Jones was the assistant
national administrative secretary ( see table of organization , Resp Exh
23)
^ See Case 2-RC-14150 (not reported in printed volumes ) An election
was conducted by the Board in March 1966 , which resulted in the
designation and certification of VARU as the representative for the pur-
pose of collective bargaining of "all representatives employed by Respond-
ent in its various branch offices located throughout the United States, ex-
cluding all office clerical employees , guards, watchmen and supervisors as
defined in the Act " See American Guild of Variety Artists , AFL-CIO,
162 NLRB 1416
' Resp Exh 7 (p 3)
H See G C Exh 41
" The Dallas territory included the States of Texas, Oklahoma, and Ar-
kansas
10 See G C Exhs 35 and 42
AMERICAN GUILD OF VARIETY ARTISTS 523
through Houston, checked the clubs, spoke to the club
owners and AGVA members as well as with McCardell.
He thereafter reported to Dallas and took over as branch
manager there, replacing one Martin Cavanaugh. The
only other employee in the office was a Mrs. Wilma
Hughes, described as a secretary-representative, whose
duties will be detailed more fully, infra.
Apparently as a result of the above-described situation
in Houston, Respondent hired Joseph Savarin on or
about August 31, 1964, to be its representative in the
Houston and southern Texas area. Savarin had been an
entertainer and AGVA member since 1960 and had
known Cornman in New Orleans. Upon Cornman's at-
tainment of the branch managership in Dallas, he sug-
gested to Woods that AGVA needed a representative in
Houston because of the problems there and suggested
that Savarin be hired. Savarin spoke to Woods by long-
distance telephone while in Cornman's office, after
which Woods advised Cornman that he would send the
necessary papers to put Savarin on the payroll.
Savarin commenced employment as AGVA's Houston
representative in September 1964. As such, his duties
were to service AGVA members in the area by handling
any complaints they may have had against a club owner
or AGVA, to collect their dues, to solicit new members,
to inspect the clubs with respect to dressing room facili-
ties, to see that the clubs had live music to accompany the
exotic dancers, to collect welfare payments from the club
operators, and to attempt to adjust any disputes which
might arise among the members, the club operators, and
the booking agents. 1I The situation in Houston regarding
compliance with AGVA standards for its members was
apparently as bad as Moon had described to Cornman, as
previously set forth. Savarin, in October 1964, at a meet-
ing of the Dallas Branch Executive Committee, 12
reported that members in the territory were being abused
by the operators and agents, and stated that he had
discussed with Cornman steps which would be taken to
stop these abuses and bring to book all violators of
AGVA rules.
There can be no doubt that by threatening such cor-
rective action, Savarin incurred the wrath of some opera-
tors, agents, and perhaps AGVA members in the
Houston area. Thus at the December 1964 meeting of the
Dallas Branch Executive Committee, some complaints
were lodged against Agent Lillian McCardell for failure
to sign some contracts with members. It was reported
that "Miss McCardell defended her actions to the Board
and stated that Representative Joe Savarin is causing all
the disturbance and has not been truthful in his state-
ments regarding her activities."13
The cleavage between Savarin and McCardell is
further highlighted in a report dated December 15, 1964,
from Cornman to Dick Jones (G.C. Exh. 33) in which he
related that a nightclub operator in Houston named
Skeets Wilson spoke to him on McCardell's behalf. Wil-
son sought Savarin's and Cornman's cooperation (or at
least nonopposition) with respect to McCardell's applica-
tion for a 1965 AGVA franchise, promising that if Corn-
man and Savarin would "go along," he (Wilson) would
see to it that "everything would go back to normal." 14
Wilson also advised Cornman that he (Wilson) had "Joe
Savarin nailed" by virtue of a tape recording of a conver-
sation between Savarin and Wilson which allegedly took
place in Wilson's club in October 1964.
In this conversation, Savarm is supposed to have
proposed that the three men (Savarin, Cornman, and Wil-
son) establish a school for exotic dancers in Houston,
through which they could eventually monopolize the
supply of such talent in that area, by virtue of their posi-
tions. They could thereby reap rewards for themselves by
extorting excessive fees from both the dancers and the
nightclub operators. Since such an operation would have
been clearly antithetical to Savarin's and Cornman's posi-
tions as AGVA representatives, Savarin proposed (ac-
cording to Wilson) that the school be operated by the
wives of the three men.15
At the close of his report, Cornman supported Savarin
(and opposed such "undesirables as Skeets Wilson") in
his efforts to uncover corruption in the entertainment
field, and sought Jones' cooperation.
In January 1965, Cornman by interoffice memoran-
dums (see Resp. Exhs. 12 and 13), reported to Tom Moon,
chief of the national franchise department of AGVA, and
Jay Lester, eastern regional director of AGVA (who,
although located in the New York office of AGVA, was
Cornman's immediate supervisor) concerning the alleged
wrongful conduct of McCardell, his conversations with
Wilson, and the tape recording of the Wilson-Savarin con-
versation. Based upon statements of AGVA members
and club operators who had allegedly been intimidated
and coerced by McCardell (which statements were
presumably attached to the reports), Cornman protested
the granting of the franchise to McCardell which had
been recommended at the December meeting of the Dal-
las Branch Executive Committee.16
All of the foregoing resulted in Cornman, Savarin, Mc-
Cardell, and Wilson being summoned to New York in
1I A booking agent is one who represents an entertainer with respect to
securing the entertainer's employment with a club operator or other per-
son desiring to hire the entertainer In order to represent entertainers who
are AGVA members, the booking agent must apparently secure an annual
franchise from AGVA, of which more anon.
12 AG V A's constitution (G C Exh. 19) provides for a "Branch Execu-
tive Committee in each Branch wherein [AGVA] regularly maintains an
office, which Committee shall be duly elected by the active members re-
gistered in the Branch " The function of the Committee includes, inter
aka, initial approval or disapproval of applications for AGVA franchises
by booking agents , recommending minimum wage scales , and recom-
mending disciplinary action against members or franchise agents who do
not comply with AGVA rules and regulations.
11 See G C. Exh. 46
14 McCardell's application for a franchise was at that time pending be-
fore the Dallas Branch Executive Committer. At the December 16, 1964,
meeting, the Committee reported favorably on such application
15 This alleged conversation (which was testified to by both Mr and
Mrs Wilson and denied by Savarin) consumed much polenuc on the
record herein, the Respondent vigorously asserting that such conduct on
the part of Savarm (in which Cornman allegedly was aware of and par-
ticipated) rendered him entirely unfit to be an AGVA representative and
therefore gave Respondent ample cause to get rid of the two "conspira-
tors. " (The tape recording itself was eventually proferred into evidence by
Respondent , but rejected by me on the grounds of inadequate foundation.)
However, as discussed more fully , infra , although such alleged conduct on
the part of Savann and Cornman was brought to the Respondent 's atten-
tion in February and March 1965, no disciplinary action was taken against
them at that time, nor was such conduct even referred to in any conversa-
tion or memorandums which passed between the parties prior to the ter-
minations of Savann and Cornman I thus deem the incident largely irrele-
vant to a consideration of the real motive of Respondent in effectuating
the terminations
is The National Board of AGVA has final authority with respect to the
granting or withholding of such franchises, although the Board normally
acceded to the recommendations of the area branch executive committee
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1965, to offer first-hand testimony respecting
their differing positions . However, before this took place
an incident occurred in Houston on or about February
2, 1965, which Savarin and the General Counsel contend
triggered discussions giving rise to the organization of the
Charging Union. Thus, on February 1, 1965, Savarin
received a telegram from Jones directing that "if Stork
Club refused [sic] to pay welfare and/or supplemental,
you are directed to pull the show." 17 Savarin, in the com-
pany of one Bauer (whom Savarin brought along as a wit-
ness ), proceeded to Wilson's club, and the three of them
met in Wilson's office. Savarin showed Wilson the tele-
gram he had received from Jones. Wilson advised that he
would not discuss union business in the presence of a man
who Wilson "assumed was affiliated with another agent
in town," but that Wilson would be glad to sit down and
talk with Savarin if he would come back without wit-
nesses. "If not, to get his ass out of here." 18 At that point,
Wilson opened the drawer to his desk in which rested a
revolver in plain sight. However, he made no reference to
the pistol: "I don't believe I would need-one."19 Wilson
then escorted Savarin and Bauer from the club.20
Immediately thereafter, Savarin telephoned Cornman
and advised him of the incident. He requested Cornman
to send telegrams to each member of AGVA who was
employed by the club, advise them of the incident, and in-
struct them not to work until the welfare was paid. Corn-
man complied with the request. Meanwhile, Wilson called
Jones and asked if the show could be continued if Wilson
paid the welfare, and Jones said yes Whereupon, on
February 2, Jones dispatched a Western Union money
order payable to Dick Jones in the amount of $126.21 The
following day, when Wilson's employees commenced
receiving telegrams from Cornman and/or Savarin advis-
ing them not to work until the welfare was paid, Wilson
called Savarin and Cornman to tell them that he had a
telegram in his possession from Jones stating that
everything was all right; i.e., that the welfare had been
paid. However, neither Cornman nor Savarin had been
advised by Jones of this fact, and they were reluctant to
believe Wilson. As a result, Savarin called Jones to ascer-
tain if Wilson's assertions were true, and Jones confirmed
it.
By an interoffice memorandum from Savarin to Jones
dated February 6, 1965 , the former protested the latter's
handling of this situation , i.e., Jones' accepting the money
without informing Savarin , since Savarin had informed
the members that they should not believe Wilson 's asser-
tions that the money had been paid because if it were true
(Savarin advised), he would have been notified . Savarin
told Jones that he felt he had been made the "patsie" in
the affair but that "nevertheless I am prepared to take
whatever steps necessary in [sic] preventing unsavory
people like Wilson and McCardell from operating under
the guise of AGVA."22
As previously noted , Jones, in February, requested
McCardell to come to New York to air her complaints
about Savarin and Cornman . According to Jones'
testimony (McCardell was not called as a witness), she
did in fact go to New York, accompanied by Mrs. Wilson
and the aforesaid tape recording . Jones listened to her
complaints , and, in the company of some other officers of
AGVA, listened to the tape recording . Jones reported on
this material to the National Board of AGVA which met
in February . 23 He advised that "the situation looked
pretty well complicated down in Texas " and that he con-
templated bringing all parties to the next National Execu-
tive Committee meeting to be held in March . It was at
this February meeting of the National Board that Warren
Bailey was hired as national administrative secretary, and
Bailey assumed the office on or about March 15, 1965.
At the March meeting of the National Executive Com-
mittee, Savarin , Cornman , McCardell, and Mrs. Wilson
were called as witnesses and testified separately before
the Committee, McCardell playing the aforesaid tape to
them. The Committee concluded that Mrs. McCardell
would be permitted to retain her franchise as a booking
agent of AG VA, and ordered an investigation to be made
as to the complaints against Cornman and Savarin. As far
as this record shows , however , there was no further in-
vestigation made with respect to these matters , at least
until after the two men were dismissed . Indeed, as previ-
ously noted , so far as this record shows, the subject
matter of McCardell' s and/or Wilson ' s complaints
respecting Savarin and Cornman was not raised in any
subsequent discussions or interoffice memorandums
prior to their dismissal.
C. Cornman and Savarin Organized the Charging
Union
Cornman and Savarin commenced discussions looking
toward the establishment of a labor organization among
the field representatives of AGVA following the Stork
Club incident in February. They sought and secured
advice and assistance from AFL-CIO staff members and
a labor attorney in the Dallas area. On May 25, 1965,
Cornman sent a two-page letter to some sixty branch
managers and representatives of A.GVA located
throughout the country advising them of the establish-
ment of the Charging Union and the reasons therefor, and
soliciting their support and membership. Attached to the
letter was the constitution of the Field Representatives
Federation (FRF), which is presumably a labor organiza-
tion composed of AFL-CIO staff members.24 The fol-
lowing day, May 26, Cornman sent a letter to Warren
Bailey advising of the organization of VARU, that he
(Cornman) had been appointed "tempory spokesman,"
and assuring him that VARU was not organized to
"move against AGVA" but solely for the purpose of at-
tempting to secure for the representatives more security
in their jobs.L5
In his testimony at the hearing, Jones conceded that he
became aware that Cornman and Savarin were engaged
in union activities on behalf of VARU in the latter part of
May or early June. Almost immediately , on June 3, 1965,
he recommended to Bailey , in the form of a memoran-
17 See Resp Exh. 17 At that time, the Stork Club was owned or
operated by Skeets Wilson
is The quotation is from Wilson's testimony.
19 Ibid
20 The foregoing findings are based upon the testimony of Savann and
Wilson which are, in essence, mutually corroborative.
21 See Resp Exh 20
22 See G C. Exh. 30.
23 The National Board is the governing body of AGVA , and meets
three times per year , or once every 4 months . Between National Board
meetings , AGVA policy is established in monthly meetings of the Na-
tional Executive Committee which is composed of 15 of the 45 members
of the Board
24 See G C Exh . 2 and 2-a
25 See G C. Exh. 5
AMERICAN GUILD OF VARIETY ARTISTS 525
dum, that the two men should be suspended because, as
he testified:
Well, I felt very strongly that, at least in my
opinion I felt morally correct that this was some kind
of attempted fraud that was being perpetrated by,Mr.
Cornman and Mr. Savarin while being employed by
the American Guild of Variety Artists, and on their
payroll. They were suddenly attempting to set up a
union within a union, which would definitely mean a
complete paralysis of the American Guild of Variety
Artists, in my opinion.
I felt they went about it wrong and I recommended
suspension not only for that but for the negligence
that I considered they exercised during the many
months prior to May and June of 1965 that they had
been working and I had been observing their activi-
ties.
Bailey advised Jones that it would be a violation of law
to fire the men for union activities; accordingly, Jones
declared that there was sufficient evidence of their
negligence in the past which "should certainly be cause
enough to dismiss these people." Whereupon he accumu-
lated and submitted to Bailey in the form of an interoffice
memorandum an accumulation of data relating to
Savarin's and Cornman's failure to adequately cover and
service the nightclubs and other places of entertainment
in their territory along with their negligence respecting
the failure to file "daily coverage reports" during the
period.26 However, there was no disciplinary action taken
against Cornman or Savarin as a result of this recommen-
dation.
On or about the same day-June 3-Jones placed a
long-distance telephone call to Comman, and testified
respecting thereto as follows:
A. I can't remember how I opened the conversa-
tion, but I do know that I spoke to him about VARU
activities, and I wanted to know who was backing
him and who was responsible for it, and so on and so
forth. It wasn't a very long conversation.
TRIAL EXAMINER: Do you remember what he said
in response to that?
THE WITNESS: I asked him, I recall some of his
responses, not all of them, sir, but I recall asking him
who this man was. He said some man from the AFL
or something. And he said he would not give me his
name, he didn't have to give me his name. And I said,
"Well, if you are organizing something what is the
secret about it?" And so on. And that is about all I
can remember of that conversation. He kept repeat-
ing that this man was helping him. I asked him when
he met him, and I can't recall what his answer was.
That is about all I can remember.
A. Well, near the end I can recall that I told him
I didn't like his conduct approaching the matter, I felt
like he should have - I asked him if he had contacted
Mr. Bailey and he said no, or myself, and he said no,
he hadn't contacted either one of us, and I regarded
that more or less as insubordination, and near the end
I advised him I was going to recommend the suspen-
sion of both him and Mr. Savarin to Mr. Bailey. L7
Cornman and Savarin continued the campaign on be-
half of VARU in June and July 1965. On June 13, Corn-
man sent a telegram to the delegates of the AGVA con-
vention in Toronto, Canada, expressing substantially the
same sentiments and reasons for the establishment of
VARU as were expressed in his May 25 letter to the
AGVA representatives hereinabove referred to.26
During the first part of July, Savarin, while on a 10-day
vacation, took a trip to Washington, Philadelphia, and
New York, at his own expense, where he engaged in or-
ganizing on behalf of VARU. While in the New York of-
fice, Savarin advised Bailey that he was there for the pur-
pose of organizing, but Bailey made a noncommittable
answer.29 While on the trip, Savarin secured approxi-
mately 10 cards from representatives of AGVA indicat-
ing an intention to join VARU, and he turned those over
to Cornman upon his return to Texas. On July 25, 1965,
Savarin wrote a letter to other staff representatives advis-
ing them of his trip to New York, and claimed that
VARU "now has the majority of the AGVA branches
enrolled.... 1130
During the National Executive Committee meeting of
AGVA in New York on July 20-22, 1965, Jones brought
the matter of VARU before a policy-making body of
Respondent for the first time.31 He first touched on the
subject of VARU in his report of noncompliance by
branch managers and representatives with his directions
respecting the filing of daily coverage reports, and
requested the Committee to enforce this particular aspect
of AGVA's policy. Jones referred specifically to the
failure of the representatives in Houston and Dallas to
comply with AGVA's policy in this regard although not-
ing that "these two gentlemen are now in the process of
organizing VARU...." The minutes of the meeting then
record Jones' statements as follows:
Mr. Jones then returned to the subject of VARU,
and Leon Cornman . He stated that all of a sudden he
found out that much material was sent to all AGVA
representatives throughout the country . Mr. Jones
then gave the material to Mr. Bailey and Mr. Jones
recommended to him that they be suspended. Mr.
Bailey stated that this could not be done because of
union business , and Mr. Jones went along with that
point. Mr. Jones stated that right to elect or select
their own representatives cannot ever be taken away
from the membership . It was Mr. Jones' opinion
based on his experience . Mr. Jones also reported that
he had talked to Mr. Cornman , asking Mr. Cornman
what this was all about , and Mr. Cornman would not
20 See G.C. Exh 7. For a replica of a daily coverage report form, see
Respondent's Exhibit 25. Since on or about January 11, 1965, each
AGVA representative and branch manager was supposed to have
completed one of these forms for every place of entertainment visited and
file same with the national office daily, however, as disclosed by the
record (see particularly the material attached to Jones' memorandum G.C
Exhs. 7 and 24), this rule was honored more in the breach than by com-
pliance.
27 The foregoing testimony is corroborated , in essence , by Cornman.
The interrogation and threat implicit in the conversation clearly con-
stitutes restraint and coercion violative of Section 8(a)(1) of the Act I so
find
28 See G.C. Exh. 17 See also Cornman's letters to the other representa-
tives and branch managers dated June 14 and 15 (G.C Exh 36 and 37)
29 Savarin did not speak with Jones while in New York.
ao G.C Exh 19
The matter was not submitted to the AGVA convention in Toronto
in June.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tell Mr. Jones the name of the person he talked to,
and Mr. Jones wanted to know what the secrecy was
all about, and "how can you keep it a secret as to
who you are doing business with, but he would not
tell me," but Mr. Jones clarified that in their original
correspondence they ... the FRF, Field Represen-
tatives Federation, which is under the supervision of
Mr. George Meany, and there are 116 members in
that Union, and they are spread out the entire length
and breadth of the AFL-CIO jurisdiction. This
Union is closed, Mr. Jones advised; it is strictly for
the representatives. He had often said, that in
AGVA you can go to bed tonight and in the morning
you do not know if you have a job. But by the same
token he deeply resents a couple of Johnny come
lately's to organize the AGVA representatives. He
said that this can lead to paralysis of the whole union.
He said that this action was taken to remind you that
we better start paying attention to some of these
representative [sic]. Perhaps we can give them some
kind of tenure in office, or hospitalization, or pension
plan. The question is who is VARU affiliated with?32
D. Events Leading to Savarin's Suspension and
Discharge
On June 29, 1965, Savarin dispatched two memo-
randums to Cornman with copies to Bailey and Jones
among other officers of AGVA 33), in which he advised of
difficulties he had been having regarding compliance with
AG V A regulations particularly with respect to Lillian
McCardell and Skeets Wilson. Thus, he reported that one
member was booked by McCardell for an appearance at
Wilson's club, but never received her copy of the agree-
ment nor had he (Savarin); that the member had been
summarily terminated by Wilson, but that he was unable
to do anything about it without a copy of her contract. He
also reported that Mr. Wilson's wife was operating an of-
fice in Lillian McCardell's agency; that McCardell had
been booking members who were not in good standing
with AGVA; and that, finally, McCardell had been mak-
ing out application forms for entertainers (presumably for
AGVA membership), receiving moneys for AGVA, and
submitting the same to the New York office without
notification Savarin, thus by-passing him altogether.
Savarin inquired of Cornman:
Who in New York is supplying Miss. McCardell
with application forms??? Who in New York is per-
mitting Miss. McCardell to collect monies for AG-
VA??? Who in New York is allowing Miss. McCar-
dell to by-pass this office??? Who in New York is
protecting her ??? Who in New York is condoning
her actions???34
As noted, copies of this correspondence from Savarin
to Cornman were sent to various officers of AGVA in
New York, including Bailey and Jones. On July 9, 1965,
Jones replied to Savarin in a two-page memorandum 35 in
32 See G C Exh. 4, at pp. 19-20.
33 See G C Exhs. 9 and 20.
34 G.C Exh 20
as Resp . Exh. 6.
36 Ibid.
which he did not attempt to answer Savarin's accusations
respecting McCardell specifically except in one instance
where he said that there "is no direct violation" of AG-
VA's rules when McCardell, in filling out a member's ap-
plication, placed her in one branch office rather than in
another. Jones referred to a portion of Savarin's
memorandum in which the latter related a conversation
between him and a member which took place in the Mir-
row Lounge, yet, Jones noted, Savarin had failed to make
out a daily coverage report on the Mirrow Lounge. In
quite caustic and sarcastic language, Jones chastized
Savarin for not knowing what procedure to follow when
he was of the opinion that a booking agent or club opera-
tor was in violation of AGVA rules or their contract,
pointing out that if Savarin had read the rules he would
have known that the procedure required a charge and
hearing to be held before the Dallas Branch Executive
Committee. With respect to the "Who questions"
(hereinabove referred to), Jones warned Savarin in no un-
certain terms to "discontinue making any such remarks,
for the next time you make these remarks you will have
to submit positive proof. If not you will no longer be
working for AG VA."36
On July 29, 1965, Savarin in a memorandum to Jones
which led directly to the former's suspension and
discharge, replied to Jones' July 9 memorandum. After
taking umbrage with Jones' "attempt to be-little and insult
[his] intelligence," and stating that he (Savarin) would
not yield to threats and intimidation in his "efforts to
clean and rid AGVA of its bad reputation," Savarin
closed the memorandum as follows:
As, I have uncovered many discrepancies within
AGVA, as well as many gross abuses and abusers of
AGVA members, Rules and Regulations , and as;
[sic] I have attempted to follow proper procedures
in having some of these unethical people removed or
stopped from operating under the guise of AG V A,
and as; [sic ] My attempts to do so have been hin-
dered or blocked by your actions or lack of actions,
and as ; [sic] I feel that your actions or lack of ac-
tions in regards to the Latin Quater , [sic] Ice
Capades, Stork Club, Lillian McCardell and other af-
fairs, have not been in the best interest of AGVA
and its membership ; I, therefore challenge you Mr.
Jones , and demand that you answer for your actions
or lack of actions in regards to the above mentioned
cases.37
Upon receipt of Savarin's memorandum, Jones im-
mediately contacted Bailey and demanded Savarin's
dismissal for rank unsubordination. Bailey complied with
Jones' request and, on August 3, 1965, notified Savarin
of the latter's suspension pending the next meeting of the
National Executive Committee.33 At such meeting on
August 17 and 18, 1965, Bailey reported that Savarin
was suspended, "because he wrote a rude letter to Mr.
Dick Jones that could not be ignored."39 The committee
voted to "discharge Mr. Joe Savarin as of the date of his
37 See Resp Exh 5. Copies of such memorandum were sent to a whole
array of officers of the Respondent including the chairman of the National
Executive Committee, Bailey, Lester, and Moon.
38 See Resp. Exh. 1
3s Resp Exh 7
AMERICAN GUILD OF VARIETY ARTISTS 527
suspension for gross negligence, dereliction of duty and
insubordination."40
E. Analysis and Concluding Findings as to Savarin's
Discharge
This case presents a classic example of a situation
where, upon learning of its employees' organizational ac-
tivities on behalf of a labor union, the employer's
representative reacts violently in opposition thereto and
seeks avenues of recrimination .41 Thus, by his own
testimony, Jones, upon learning of the union activities of
Savarin and Cornman, immediately sought their suspen-
sion from Bailey. When Bailey advised that such conduct
would amount to a flat violation of the Act, Jones im-
mediately scurried about to find a suitable "cause" for
their removal, and latched onto their failure to file the
daily coverage reports. However, in light of the fact that
other employees similarly situated likewise failed to live
up to their duties in this regard and no action was recom-
mended against them, a suspension or termination for this
reason would have been an obvious pretext. Fortunately,
therefore, for Respondent, Bailey refused to accede to
Jones' recommendation in June.
Savarin then proceded to "dig his own grave," in my
opinion, by writing the insulting, provocative, and vitu-
perative memorandums to Jones in June and July. True it
is that there is some evidence which might have led
Savarin to believe that Jones was, in fact, protecting Mc-
Cardell, and Jones' memorandum to Savarin during this
period was certainly of a sarcastic and belittling nature
which might legitimately provoke antagonism on the part
of Savarin However, in my opinion, this did not give the
latter license to accuse Jones, before all of his official con-
temporaries, of fraud and mismanagement, and challenge
him to an accounting in this manner. Certainly no
management representative is required to condone such
conduct. If Savarin actually believed that Jones was im-
plicated with McCardell and Wilson against him, his
proper course would have been to take up the matter
privately and discreetly with Jones' superiors and not to
openly flout and challenge him in front of his contempora-
ries. Thus, the situation here is closely taking to that in
Metals Engineering Corporation,42 where the dis-
criminatee "created a situation where Respondent either
had to discipline him or in effect acquiesce in his insubor-
dination...." I also deem appropriate to this matter the
language of the Board in the recent case of Klate Holt
Company: 43
The mere fact that an employer may desire to ter-
minate an employee because he engages in unwel-
come concerted activities does not, of itself, establish
the unlawfulness of a subsequent discharge. If an em-
ployee provides an employer with a sufficient cause
for his dismissal by engaging in conduct for which he
would have been terminated in any event, and the
employer discharges him for that reason, the circum-
stance that the employer welcomed the opportunity
to discharge does not make it discriminatory and
therefore unlawful [citing cases].
I therefore find and conclude that the General Counsel
did not, by a preponderance of the evidence, prove that
Respondent terminated Savarin in order to discourage
union membership in violation of Section 8(a)(3) and (1)
of the Act. I will therefore recommend that the complaint
as to him be dismissed.
F. Events Leading to the Suspension and Discharge of
Cornman
As previously noted, Cornman, on August 3, 1965,
requested recognition of VARU by AGVA. Voluntary
recognition being declined, VARU subsequently filed a
petition for an election. By letter dated October 29, 1965,
Cornman notified the various AGVA representatives and
branch managers located throughout the country of the
foregoing facts, and solicited support from those who had
not already joined VARU.44
It is to be recalled that Bailey was dismissed as national
administrative secretary at the October 12 meeting of the
National Board of AGVA. The precise reason for his
dismissal is not disclosed by the record although it is ap-
parent that, as Jones testified, there was a lack of
cooperation and rapport between Bailey as the adminis-
trative secretary and Jones as the assistant administrative
secretary. In any event, Bailey admitted that he gave a
negative response to a question from a board member as
to whether he could remain as administrator and work
with a "Jack Haley slate" of nominees for AGVA of-
ficers (which presumably included Jones). Following
Bailey's dismissal, Jones resumed the post of acting na-
tional administrative secretary until February 1966, when
he became the national administrative secretary of
AGVA.
On November 29, 1965, the last day that Cornman
worked for AGVA, Wilma Hughes called him at his
home from the office, about 10 a.m., advising that Martin
Cavanaugh was there to take over the office .45 Cornman
proceeded immediately to the office, and there met
Cavanaugh who handed him a letter from Dick Jones ad-
vising of his suspension as manager of the Dallas branch
and instructing him to turn over to Cavanaugh all proper-
ty of AGVA in his possession. The letter also stated:
The reason given for suspension is gross negligence,
dereliction of duty and insubordination.46
For the next several hours the two men took an inven-
tory of property in the office. Cornman advised
Cavanaugh that he would not turn over the property to
Cavanaugh until he received his severance pay; where-
upon, Cavanaugh telephoned Jones concerning this matter
40 Ibid. It may be noted also that the minutes of this meeting record that
Bailey read a letter from Cornman as authorized representative of VARU
requesting that AGVA recognize VARU as the exclusive representative
of its employees After discussion , motion was made , seconded , and car-
ried unanimously
That a complete investigation into the validity of said union VARU
be taken up with the National Administrator , the Assistant Adminis-
trator and Mr Maloney to investigate all avenues , exhaust all
avenues and efforts , to bung to us a true picture of the validity of
VARU immediately
11 Such "direct evidence of a purpose to violate the statute is rarely ob-
tamable," Hartsell Mills Company v. N L.R B., 111 F.2d 291, 293 (C.A.
4) It seems ironical that in such a rare case the employer is a labor or-
ganization which itself purports to protect employees within its industry
from such machinations of the employers.
4248 NLRB 88
41 161 NLRB 1606
44 See G.C. Exh. 38.
45 This is the same Martin Cavanaugh whom Cornman replaced as
branch manager of the Dallas office of AG V A in August 1964.
46 See G.C Exh. 41
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated that Jones promised a telegraphic money order
would be sent to Cornman immediately for that purpose.
The money order arrived that afternoon.47
Jones testified that at the next meeting of the National
Executive Committee he reported the suspension, which
was approved, and Cornman was discharged.
G. Concluding Findings as Respects Cornman's
Discharge
What has been stated and found heretofore respecting
Jones' attitude toward the organization of VARU applies
equally to Cornman and Savarin. As previously set forth,
upon learning of their activities, he immediately recom-
mended their suspension to Bailey. The latter, however,
believing that any disciplinary action AGVA might take
in the circumstances would be unlawful, refused to
comply with Jones' recommendation. It was only after
Savarin wrote the insulting and insubordinate memoran-
dums to Jones that Bailey agreed to the, suspension of
Savarin.
The record shows that from the time of his June 3
memorandum to Bailey until Cornman' s suspension on
November 29, Jones made no further complaint or con-
tact with Cornman or any other AGVA officer or
representative concerning Cornman's failures to police
his territory or file the daily coverage report forms.48
Meanwhile, as previously noted, Cornman continued his
activities on behalf of VARU by requesting recognition
in August 1965, and writing a letter in October 1965, to
AGVA representatives reporting on the activities of
VARU and soliciting their support. It is likewise ap-
parent that Jones' initial attitude toward VARU persisted
down to at least the period immediately prior to the
NLRB election in March 1966, as exemplified by a letter,
to AGVA's employees dated February 28, 1966, which
was highly critical of both Cornman and Savarin.49
The short of the matter is that Jones, receiving no sup-
port from Bailey in his effort to rid AGVA of Savarin and
Cornman because of their activities on behalf of VARU,
bided his time until Bailey was dismissed and then
suspended Cornman (and later had him discharged) on his
own. There is absolutely no evidence that between June
3 and November 29, 1965, Cornman had engaged in any
conduct which could be described as "gross negligence,
dereliction of duty and insubordination," other than the
conceded failure to meticulously comply with the filing of
the daily coverage report form. However, as previously
discussed, Cornman's record in this respect is not sub-
stantially better or worse than the other branch managers
located throughout the United States, and Jones had
made no recommendation, at least as of this time, respect-
ing them.50 Accordingly, the "reason given for suspen-
sion" carries no more weight respecting Cornman than it
did Savarin, and I am convinced that such reason was
pretextual and that the real reason therefor was to
discourage membership in VARU, thereby violating Sec-
tion 8(a)(3) and (1) of the Act.
There remains for discussion, however, respecting
Cornman, the issue of whether, as a branch manager, he
was a supervisor within the meaning of Section 2(11) of
the Act,51 thereby depriving him of the protection that the
statute affords an employee. While this issue, as respects
Cornman only, was litigated herein, it is to be recalled
that the issue of the supervisory status of branch
managers and representatives generally was also litigated
at the hearing in the representation case in the fall of
1965. The result of that litigation was that the Regional
Director of the Board in New York City determined, on
the basis of the record before him, that branch managers
are supervisors, and excluded them from the bargaining
unit. 52
There can be no question but that Cornman, as branch
manager at Dallas, had a responsibility for the operation
of that office greater than the other two employees in the
area: Wilma Hughes, the representative-secretary, and
Joe Savarin, the Houston representative. Thus, he nor-
mally initialed expense vouchers of the other two em-
ployees (although his testimony is undenied that on occa-
sion the other employees submitted their own expense
vouchers which were paid without his approval); he was
presumably responsible for AGVA's property in the of-
fice as indicated by the fact that he had to sign an invento-
ry for it at the time he acceded to the office and when he
was dismissed; he had a responsibility regarding the
meetings of the Dallas Branch Executive Committee
(although I note that he did not chair the meetings
see Resp. Exhibit 14); it was he who recommended
Savarin to Johnny Woods, the national administrative
secretary, for hiring, although Woods made an indepen-
dent investigation of the matter before hiring Savarin; and
he would normally resolve any problems of a local nature
which might come into the office, such as a grievance of
a member, or interpretation of a contract with which
Hughes did not feel qualified to deal.
On the other hand, many of his duties as a branch
manager were indistinguishable from those of a field
representative, and his authority over Hughes and
Savarin, as well as the latitude delegated to him to use in-
dependent judgment in making decisions respecting pol-
icy, was quite circumscribed. Thus, the record here, as
that in the representation case, reflects that the duties and
11 Cornman testified that during the taking of inventory on November
29, he and Cavanaugh took a coffeebreak during which the latter stated
that Dick Jones was "very hot" at him (Cornman) for his activities on be-
half of VARU Cavanaugh denied the conversation I find it unnecessary
under all the circumstances to make a credibility finding on this particular
conversation since I have some doubts as to whether the record would
support a finding that Cavanaugh was an agent of Respondent at the time
the statement was assertedly made In any event , I have heretofore found
that Jones was, in June and July , incensed at Cornman for the latter's ac-
tivities on behalf of V ARU, and the record shows that such attitude con-
tinued until at least March 1966.
"' Jones testified that he believed that in July he mentioned on one or
two occasions to Bailey that " Mr Cornman was not properly policing his
territory and so on and so forth, but I never made an issue out of it so far
as Cornman was concerned "
41 See G C Exh. 43
s" Jones testified at the hearing herein that most of the branch managers
whose record reflects substantial failure to submit the daily coverage re-
port form were still employed by AG VA In the couple of cases where the
branch manager had been dismissed, there were other derelictions in-
volved.
51 The term "supervisor" means any individual having authority, in the in-
terest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use
of independent judgment
52 Case 2-RC-14150, Decision dated January 17, 1966 He also found
representatives not to be supbrvisors. It does not appear that either party
appealed to the Board from the Regional Director's Decision
AMERICAN GUILD OF VARIETY ARTISTS 529
functions of branch managers and field representatives
are practically identical in many respects:
As agents of AGVA, they negotiate and enforce em-
ployment contracts [called minimum basic agree-
ments or MBA's] with various employers on behalf
of AGVA's members. In addition, they check union
membership cards, collect dues and welfare fund
payments, provide members with complaint and
accident forms, settle grievances, and conduct mem-
bership meetings. Also, they have the authority to
stop shows where the MBA has been violated and to
file charges against members for violations of AG-
VA's rules and regulations. While branch managers
and representatives are hired by the National Ad-
ministrative Secretary subject to the approval of the
National Board and may be suspended by the Na-
tional Administrative Secretary, they are subject to
dismissal only by the National Board or the National
Executive Committee.53
On the basis of the record before the Regional
Director, it was found that branch managers, unlike field
representatives, ". . . select office space and negotiate
leases ... [and] about 21 branch managers actually hire,
discharge and determine the working conditions of other
employees...." There is no creditable proof on this
record that Cornman had such authority or exercised
such functions in Dallas. Thus, Hughes had been working
in the Dallas office for several years as a secretary-
representative when Cornman arrived in August 1964.54
She describes her duties as "mostly secretarial"; that is,
she makes up bank deposits (three different accounts),
does the typing of memos, letters, etc., makes records of
all welfare payments, dues, bonds, etc., answers the
telephone, makes up the reports that go to the National
Office, and refers matters that she is not qualified to han-
dle (such as grievances of members, contract interpreta-
tions, etc.) to the branch manager. Her working hours
(from 10 to 6 every working day) have remained substan-
tially the same since her employment began. Cornman
testified undeniably that he did not make any change in
her duties and methods upon his arrival in Dallas.
Mrs. Hughes received a $10 raise in wages in October
1964, after Cornman became manager. However, he was
neither notified nor consulted about it, and did not learn
of it until after the fact. The fact is that, according to
Cornman's undenied testimony, a representative on AG-
VA's National Board from the Dallas area was instru-
mental in securing the raise for Mrs. Hughes. It is also
noted that when Savarin was suspended, Cornman was
neither notified nor consulted respecting such action, it
being solely within the control and prerogative of the
AGVA officials in the National office.
Cornman's authority with respect to the finances in the
branch office was equally limited. Upon his arrival in
Dallas, he rented an additional room for the office, but
only after he had secured express permission from
Woods, the national administrator . There was a $25 petty
cash fund from which Mrs. Hughes would normally buy
day-to-day requirements for the office . However, on any
major items , the supplier would send a bill which would
be forwarded to the National Office which in turn, would
make out a check to the supplier and send it to the Dallas
branch office to be forwarded to him . The National Office
also made out the monthly rental check to the landlord
and forwarded it to the Dallas branch office which, in
turn, paid the landlord.
The foregoing objective facts, based essentially upon
the undenied testimony of Cornman and Hughes,55
indicates that the supervisory functions of Cornman were
essentially of a routine and ministerial nature and that he
did not possess the authority and independence of
judgment required of a supervisor within the meaning of
the Act.56 I therefore find, on the basis of a consideration
of the evidence in this record as a whole, giving due con-
sideration and "persuasive relevance" to the findings of
the Regional Director for Region 2 of the Board in the
representation matter'57 that Cornman , as branch
manager of the Dallas office of AGVA, is not a super-
visor within the meaning of the Act, and that the said
Cornman is an employee entitled to the protection of Sec-
tion 7 of the Act. I, therefore , find and conclude that
Respondent , by terminating him on November 29, 1965,
discriminated in order to discourage membership in
VARU, thereby violating Section 8(a)(3) and ( 1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the interstate opera-
tions of Respondent, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact and
upon the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. American Guild of Variety Artists, AFL-CIO,
Respondent herein, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Variety Artists Representatives Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By engaging in certain described conduct referred
to in section III hereof, Respondent has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
53 Pages 2 and 3 of Regional Director 's Decision and Direction of Elec-
tion in Case 2-RC-14150
54 Hughes had been employed since February 1962
55 In the face of such evidence , I specifically reject the testimony of
Jones that Cornman had the authority to "hire an assistant .. [or] fire
an assistant , secretary , office help ." There is absolutely no evidence other
than this essentially self-serving declaration that Cornman possessed any
authority to hire , fire, suspend , promote , or otherwise change the employ-
ment status of either Savann or Hughes
16 Precision Fabricators v. N.L.R.B., 204 F 2d 567 (C A. 2); N.L.R B.
v Southern Bleachery & Print Works, Inc., 257 F.2d 235 (C.A 4), cert.
denied 359 U.S 911; cf Retail Store Employees Union, Local880, Retail
Clerks International Association, 153 NLRB 255, and cases cited
therein
'7 See Leonard Niederriter Company, Inc, 130 NLRB 113, 115,17n. 2;
see also Amalgamated Clothing Workers of America, AFL-CIO v
N.L.R.B. [Sagamore Shirt Company], 365 F 2d 899 (C.A D.C );
N.L.R.B v. Southern Airways Company, 290 F 2d 519, 522-523 (C.A
5).
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8(a)(1) of the
Act.
4. By engaging in certain described conduct referred
to in section III hereof, Respondent discriminated against
an employee in regard to his hire and tenure of employ-
ment, and terms and conditions thereof, in order to
discourage membership in the Union, and thereby has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have
been specifically found, as set forth above, the General
Counsel has failed to establish by a preponderance of the
evidence the remaining allegations of the complaint
herein , and it will be recommended that said complaint
be, to that extent, dismissed. 511
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Because the clearly coercive and discriminatory treat-
ment of Cornman by Respondent goes to the very heart
of the Act, and the entire record herein indicates a pur-
pose by Respondent to defeat the exercise by employees
of rights guaranteed in Section 7 of the Act, I am con-
vinced that a cease-and-desist order coextensive with the
guarantees of Section 7 is warranted and necessary in this
case to prevent other unfair labor practices potentially re-
lated to those found herein. I shall therefore recommend
that Respondent be required to cease and desist from in
any other manner infringing on employees' Section 7
rights. (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (C.A. 4)).
My Recommended Order will require that Respondent
offer Cornman immediate and full reinstatement to his
former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges, and
that he be made whole for any and all losses he may have
suffered by reason of the discrimination against him Any
backpay found to be due him shall be computed in ac-
cordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the entire record, the findings of fact
and he conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
American Guild of Variety Artists, AFL-CIO, its of-
ficers, agents, and representatives , shall:
1. Cease and desist from:
(a) Coercively interrogating employees in regard to
their union membership and activities.
(h) Threatening its employees with suspension or
discharge should they engage in activities on behalf of
VARU, or any other labor organization.
(c) Discouraging membership in Variety Artists
Representatives Union by discharging , suspending, or
otherwise discriminating in regard to the hire or tenure of
employment of employees , or any term or condition of
employment.
(d) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their right to
form, join , or assist Variety Artists Representatives
Union, or any other labor organization , to bargain collec-
tively through representatives of their own choosing, or
to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Leon A. Cornman immediate and full rein-
statement to his former or substantially equivalent posi-
tion , without prejudice to his seniority or other rights and
privileges , and make him whole for any loss he may have
suffered by reason of the discrimination against him in the
manner set forth in the section entitled "The Remedy."
(b) Notify Leon A. Cornman if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act , as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
documents necessary and relevant to analyze the amount
of backpay due under this Recommended Order.
(d) Post at its New York headquarters , and at all of its
branch offices, copies of the attached notice marked
"Appendix ." 59 Copies of said notice, to be furnished by
the Regional Director for Region 23, after having been
duly signed by Respondent ' s representative , shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.6o
IT IS FURTHER RECOMMENDED that the complaint be
58 The complaint, as amended at the hearing , alleges that the Respond-
ent additionally violated Section 8(a)(1) of the Act by certain conduct as-
cribed to one "Sparky" Blaine , who is described as the chairman of the
Chicago Branch Executive Board of AGVA Since the evidence, in my
opinion, does not warrant a finding that this person is one for whose con-
duct AG VA is responsible , i.e., an agent of AG V A, I find and conclude
that AG V A did not violate the Act through any of his conduct and recom-
mend that this allegation be dismissed
"' 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
b1 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 Re-
spondent has taken to comply herewith."
AMERICAN GUILD OF VARIETY ARTISTS 531
dismissed insofar as it alleges violations of the Act other
than found in this Decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL offer Leon A. Cornman immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to his seniority
or other rights and privileges , and make him whole
for any loss of earnings he may have suffered as the
result of the discrimination against him.
WE WILL NOT discourage membership in Variety
Artists Representatives Union , or any other labor or-
ganization of our employees , by discriminating
against any individual in regard to his hire or tenure
of employment , or any term or condition of employ-
ment.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership or activi-
ties.
WE WILL NOT threaten our employees with
suspension or discharge for engaging in activities on
behalf of, or joining, Variety Artists Representatives
Union, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights of self-organization , to form labor or-
ganizations , to join or assist the above -named or any
other labor organization , to bargaining collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protec-
tion , or to refrain from any and all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above or any other labor organization.
AMERICAN GUILD OF
VARIETY ARTISTS,
AFL-CIO
(Employer)
Dated By
(Representative) (Title)
NOTE: Notify the above-named employee if presently
'serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
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 , 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas
7002, Telephone 228-0611.