Dallas Stage Employees

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 818 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dallas Stage Employees, Local Union 127, Interna-
tional Alliance of Theatrical Stage Employees,
AFL-CIO (Mulberry Square Productions) and
Bernard Blynder. Case 16-CB-1532 (formerly 12-
CB-1970)
February 5, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 12, 1979, Administrative Law Judge
Leonard H. Cohen issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein. '
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 Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Dallas
Stage Employees, Local Union 127, International
Alliance of Theatrical Stage Employees, AFL-CIO,
Dallas, Texas, its officers, agents, and representatives,
shall take the action set forth in the said recommended
Order, as so modified:
I. Substitute the following as paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Notify Mulberry Square Productions in writing
that it has no objection to the employment of Bernard
Blynder, and furnish said employee with copies of
such notification."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' The General Counsel has excepted to the Administrative Law Judge's
recommended Order to the extent that it does not require Respondent to
notify the Employer that it has no objection to Bernard Blynder's employment
in its territorial jurisdiction. We find merit to this exception, since this remedy
is normally given for a violation of this kind, and we shall modify the
Administrative Law Judge's recommended Order accordingly. See, e.g.,
Bricklayers and Stone Masons, Local Union No. 6. Bricklayers, Masons &
247 NLRB No. 110
Plasterers' Intrernarional Union of America. AFL-CIO (Linbeck Construction
Corporation). 185 NLRB 756, 762 (1970).
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act and has ordered us to post this notice.
WE WILL NOT cause, or attempt to cause,
Mulberry Square Productions to deny employ-
ment to or terminate Bernard Blynder as a sound
mixer or otherwise to discriminate against him in
violation of Section 8(a)(3) of the Act because of
his nonmembership in Respondent or any other
International Alliance of Theatrical Stage Em-
ployees sound local.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act, except
to the extent that such rights might be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL. notify Mulberry Square Productions,
in writing, that we have no objection to the
employment of Bernard Blynder and we shall
furnish him with copies of such notification.
WE WILL reimburse Bernard Blynder for any
pay he lost, with interest, by reason of the
discrimination which we have unlawfully caused
to be practiced against him.
DALLAS STAGE EMPLOYEES, LOCAL UNION
127, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES, AFL-
CIO
DECISION
STATEMENT OF THE CASE
LEONARD H. COHEN, Administrative Law Judge: This
matter was heard before me in Dallas, Texas, on March 26
and 27, 1979. On December 15, 1978,' the Regional Director
for Region 16 of the National Labor Relations Board issued
a complaint and notice of hearing based on unfair labor
practice charges filed on June 30, by Bernard Blynder, an
individual, alleging violations of Section 8(b)(1)(A) and (2)
of the National Labor Relations Act, as amended, 29 U.S.C.
151, et seq., herein called the Act.
' Unless otherwise stated, all dates occurred in 1978.
818
DALLAS STAGE EMPLOYEES, LOCAL 127
Issues
1. Did Respondent attempt to cause and/or cause Mul-
berry Square Productions, herein called Mulberry Square, to
discriminate against Bernard Blynder, herein called Blynder,
by discharging him on or about January 27 because of his
lack of membership in good standing in a sound local of the
International Alliance of Theatrical Stage Employees, AFL-
CIO, herein referred to as either IATSE or the International.
2. Was the job classification of sound mixer on Respon-
dent's production of "The Double McGuffin," the job to
which Blynder had been conditionally hired, a supervisory
position within the meaning of Section 2(11) of the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence and to examine and cross-examine
witnesses, to argue orally, and to file briefs. Counsel for the
General Counsel and Respondent filed briefs which have
been carefully considered.' Upon the entire record of the
case and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Mulberry Square is a Texas corporation with a principal
place of business in Dallas, Texas, where it is engaged in the
production and distribution of motion pictures. During the
past 12 months, a representative period of time, Mulberry
Square received in excess of S50,000 annually from the sale
and rental of their products throughout the United States
and in foreign countries. Accordingly, I find that at all times
material herein Mulberry Square has been an employer
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Dallas Stage Employees Local Union 127, International
Alliance of Theatrical Stage Employees, AFL-CIO, herein
called Respondent, is and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. SUPERVISORY STATUS OF SOUND MIXER
Respondent contends that the position of sound mixer on
Mulberry Square's motion picture production of "The
Double McGuffin," the job to which Blynder was condition-
ally hired and the job which was ultimately performed by
James Sabbott, was a supervisory position within the
meaning of Section 2(11) of the Act. Respondent bases this
contention on two points: (1) that the sound mixer, one of
the 12 department heads on the production, has the
authority to hire and fire or at least to effectively recom-
mend such action with regard to his assistant, the boom
man; and (2) that, in the normal course of production, the
:On May 3. 1979. counsel for the General Counsel moved for permission to
file a reply brief The Board's rules and regulations do not provide for the
filing of reply briefs. Accordingly, the General Counsel's motion is denied.
' In terms of aesthetics during the actual filming. Camp, the director, would
sound mixer exercises independent judgment in the direction
of the boom man. I am not persuaded that the record
evidence supports either of those contentions.
Joe Camp, Mulberry Square's president, was both the
producer and director of the film production and as such
had overall authority for all aspects of the production.
Immediately under Camp were Dan Witt, the assistant
producer, and Terrence Donnelly, the production manager
and first assistant director. Donnelly in turn was assisted by
Thomas Lofaro, the second assistant director. Although the
record is not clear regarding Witt's specific duties, it appears
that Camp, Donnelly, and Lofaro were physically present on
location at all times during the entire production.
Donnelly, the immediate supervisor on the production
level of the 12 department heads,' had the authority of hiring
and firing the crew, which includes department heads as well
as their assistants, the preparation of the budget, the
financial cost control over the film from its inception to
completion, and certain areas of responsibility relating to the
financial investment. Specifically, Donnelly prepared the
daily "call sheet" which was the schedule for the next day's
shooting. The call sheet, which the crew used as a guideline
as to what they would be doing the following day, informed
the employees where and when to report and what type of
equipment would be needed.
The sound mixer physically sets up, with the help of the
boom man, the microphones and other sound equipment
needed, and, during the actual shooting of the script, is
physically stationed at his control box near the director to
insure proper recording of the sound. The boom man is
responsible for the placement of the microphones in any
given set to achieve the result of recording the sounds on
tape. Any instructions from the sound mixer to the boom
man are generally of a technical nature and primarily
involve the type, number, and placement of equipment.
Since both the sound mixer and the boom man must work
together to achieve a common goal of recording the sounds
that the director desires, it is common practice within the
industry for the sound mixer and the boom man to work as a
team. Since a good working relationship between the two is
required, it appears to be the generally accepted practice
within the industry that the sound mixer recommends to the
producer the hiring of his boom man. In the instant case,
both Blynder and his replacement, Sabbott, made recom-
mendations to Donnelly and Lofaro regarding the hiring of a
boom man. Donnelly, apparently following the industry
practice, acted favorably upon the recommendations only
after conducting an independent investigation or inquiry into
the boom men's competence and availability.
Although the minimum wages are normally set by
contract with the unions, the producer, as did Mulberry
Square herein, negotiates directly with the sound mixer and
boom man concerning their compensation. Although evi-
dence was introduced that it is a common practice within the
industry for the sound man to negotiate the compensation
above contract rate for his boom man, it appears clear that
supervise all department heads directly. In addition to sound mixer, some of
the other department heads included director of photography, art director.
key grip, and chief electrician.
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on those occasions the sound mixer is merely acting as the
boom man's authorized agent in the negotiations.
The sound mixer and boom man generally work the same
hours and receive the same fringe benefits. The sound mixer
does not determine the hours to be worked by the boom man
and does not have the authority to grant either time off or
overtime to the boom man. Additionally, the sound mixer
does not have the authority to discharge or discipline his
boom man.
Based on the above and the entire record herein, I find
that the sound mixer on Mulberry Square's production of
"The Double McGuffin" did not possess the actual authori-
ty to hire, fire, or discipline the boom man and that that
authority was lodged in others. While recommendations
regarding the boom man's hiring may have been made by the
sound mixer, they were subject to independent investigation
and decision by others. Likewise, I find that the sound
mixer's direction of the boom man was routine and technical
in nature and under the constant supervision of the produc-
tion manager and/or director. Accordingly, I find that in
that absence of evidence of any real supervisory authority,
the position of sound mixer in these circumstances is not a
supervisory classification within the meaning of Section
2(1 1) of the Act. International Photographers of the Motion
Picture Industries, Local 659, IA TSE (MPO-TV of Califor-
nia, Inc.). 197 NLRB 1187 (1972); Directors Guild of
America, Inc. (Association of Motion Picture & Television
Producer, Inc.), 198 NLRB 707 (1972).'
IV. FACTS
Except as specifically noted herein, the material facts with
regard to the events leading to the filing of the instant
charge, while somewhat complicated, are not in dispute.,
Mulberry Square and Respondent have had a collective-
bargaining relationship since at least December 1973 when
Mulberry Square and the International executed a -year
agreement covering Mulberry Square's craft employees
employed in the film or video tape productions.' This
Respondent, in this regard, relies on the testimony indicating that Camp
had determined to discharge Sabbott's boom man, Peter Ilardi for an inability
to perform his job, but was persuaded from doing so only by Sabbott's
intervention. However, in this instance, Camp decided to follow Sabbott's
recommendation only after he had been fully apprised of the underlying facts
causing the problem.
See also Norac Lumber Co.. Ltd., 234 NLRB 572 (1978), in which the
Board found that the crew leaders were not supervisors within the meaning of
the Act. even though the employer generally acquiesced in the crew leader's
recommendations for members of his crew. The Board noted that these
recommendations for selection were based mainly on the desire and ability of
the members in the crew to work together to a maximum, mutual benefit.
Additionally. the employer retained and exercised his authority to reject any
crewmember. In that situation, the Board held that the crew leader's
involvement in the hiring process was "routine and does not involve the
exercise of independent judgment necessary to support a supervisory status."
' The following recitation of the facts is based on the uncontroverted
testimony relating to face-to-face meetings between Donnelly, Mulberry
Square's production manager and first assistant director, and Blynder, and
between E. W. Bradford, Respondent's business agent, and Frank Doran,
Mulberry Square's vice president of finance, as well as on numerous telephone
conversations which took place among these individuals. Additionally.
Thomas Lofaro. Mulberry Square's second assistant director, testified to a
number of telephone conversations he had with the others. With the exception
of several telephone conversations which will be discussed in detail and
resolved infra. there is no material conflict as to the contents of these
discussions. Blynder, Donnelly. Bradford and to a lesser degree Lofaro all
agreement provided an automatic renewal from year-to-year
unless either party notified the other at least 60 days from
the termination or anniversary date of their desire to change
or terminate the agreement. Both parties agree that no notice
of such desire was given in either 1974 or 1975. However,
Respondent contends that such notice to terminate or
renegotiate was given in late 1976, while Mulberry Square
contends that the notice was not given until late 1977." In
any event, both Respondent and Mulberry Square agree that
by December 18, 1977, no agreement or contract of any kind
was in effect between the parties.
By August 1977, Terrence Donnelly commenced hiring
personnel for Mulberry Square's upcoming major motion
picture "The Double McGuffin." This production was to be
shot entirely on location in the Charleston, South Carolina,
and Savannah, Georgia, areas.
At some point during this month, Donnelly paid a visit to
the home of Bernard Blynder in Miami, Florida, and
inquired whether Blynder was interested and available to act
as sound mixer for the production of the upcoming movie.
After Blynder indicated he was both interested and avail-
able, Donnelly gave him a copy of the script, and they
proceeded to discuss the proposed start date,' salary require-
ments as well as the fees to be charged by Blynder for the use
of his sound equipment.
Blynder's son Scott was also present at this meeting, and
when Blynder asked Donnelly if he (Donnelly) could hire
Scott as boom man for the picture, Donnelly indicated that
he would if Scott checked out as qualified. Donnelly further
stated that he would get back in tough regarding Scott's
possible employment."'
Blynder and Donnelly then discussed the fact that
Blynder's IATSE membership card had been suspended by
the IASTE Local 316 in Miami." When Blynder told
Donnelly that he thought that he would be getting his card
reinstated in the near future, Donnelly informed Blynder
that his employment with Mulberry Square was conditional
testified in a convincing manner and impressed me as attempting to recall
conversations which took place well over a year prior to the hearing in an
accurate fashion. I found Bradford a particularly candid and reliable witness
who was not at all reluctant or reticent to give testimony detrimental to his
former employer. Doran's memory, on the other hand, was decidedly less
clear than the testimony of any of the others. He testified in a halting manner
and on occasion required to have his memory refreshed. Therefore, I do not
credit his testimony except where corroborated by the testimony of others.
At some unspecified time following the execution of this agreement.
Respondent merged with an associated crafts and technicians unit organized
and administered through the International to handle local Dallas produc-
tions. Through this merger Respondent acquired the contract with Mulberry
Square.
' The question of whether this agreement was in force and in effect during
1977 is apparently the subject of other court litigation and was not put in issue
before me.
As of mid-August, the proposed start date for the production was the end
of November 1977.
"' Blynder had worked with Donnelly as a sound mixer on at least two prior
projects. According to Blynder, on one such project. Blynder's son Scott was
employed as the boom man. Donnelly testified he had never employed Scott
as a boom man. Scott Blynder did not testify at the hearing. In view of
Donnelly's subsequent action in checking into Scott's qualification with a
New York production company, it appears that Donnelly's version is the
more probable of the two.
"Blynder's membership in IATSE Local 316 in Miami, Florida, was
suspended in 1971 for his working behind a sanctioned picket line.
820
DALLAS STAGE EMPLOYEES. LOCAL 127
upon his getting his IATSE card reinstated prior to
production on the movie.'" In mid-November 1977 Donnelly
called Blynder and advised him that the starting date had
been moved to late January 1978. Then Donnelly and
Blynder finalized their agreement on salary and fees. During
the course of this conversation, Donnelly inquired regarding
Blynder's membership in Local 316 and was informed that
the situation had not yet changed. The subject of Scott
Blynder's employment as boom man was also discussed
during this phone call. Donnelly informed Blynder that his
son Scott was also hired for the production on the condition
that Scott was able to obtain membership in Local 316 or
any other IATSE sound local."
In November 1977 at or about the same time as the above
conversation took place, Respondent and Mulberry Square
commenced bargaining for a new collective-bargaining
agreement. Chief negotiator for Mulberry Square was Frank
Doran, Mulberry Square's vice president in charge of
finance. Chief negotiator for Respondent was E. W. Brad-
ford, then Respondent's business agent. Bradford was
assisted in the negotiations by Phillip Sloan, an assistant
business agent at that time.
At the first meeting, Doran indicated that he had just
recently joined Mulberry Square and had virtually no
experience in either the film industry or the collective-
bargaining process. At this meeting, Bradford and Sloan
merely went through Respondent's contract proposals,
explaining the meaning of the various provisions to Doran.
One of the new provisions in the Union's proposed contract
provided for an exclusive hiring hall that would insure that
qualified local people (Dallas based) would be given first
rights for employment as department heads in feature films
shot outside the Dallas geographical area."
At the second bargaining session held in late November or
early December the parties discussed Mulberry Square's
upcoming production. Doran indicated that he did not want
any trouble with the production and he provided Bradford
with a list of the crew already hired and he requested that
Bradford look over the list to determine if there are any
problems. Bradford also at this meeting restated Respon-
dent's position with regard to desiring an exclusive hiring
hall arrangement.
At the third meeting between Bradford and Doran in late
1977, Bradford informed Doran that he had checked over
the crew list he had previously been supplied and, although
Mulberry Square could hire whomever they wished, Brad-
ford had problems with two of the names on the list;
Bernard Blynder and Cindy Lou Burrows." Bradford told
Doran that Blynder did not have a card from an IATSE
sound local and Burrows had only been accepted into
membership of the Atlanta, Georgia, IATSE local 6 months
, No evidence was offered to indicate on what basis Blynder felt, as orf
August 1977. that he would be reinstated to membership in good standing in
Local 316 in the near future. Blynder testified that he did not make contact
with Local 316 until several months after he was terminated by Mulberry
Square in January 1978.
" As noted above in fn,"' Donnelly checked out Scott Blynder's qualifica-
tions after his August meeting with Blynder. Although Scott lynder was in
essentially the same position as his father with regard to being conditionally
hired and subsequently being terminated by Mulberry Square. no unfair labor
practice charge was filed regarding his situation.
" The prior collective-bargaining agreement provided "the producer further
agrees that whenever it is in need of persons to perform the functions
earlier and that the International constitution and bylaws
prevented any member with less than 2 years' experience
from traveling outside the local's geographic area without
the permission of the International.
During this conversation, Doran asked what could hap-
pen if Mulberry Square employed someone who was not a
member of an IATSE local. Bradford explained that the
International has a registered trademark or seal often
referred to simply as "the bug" which it will allow or permit
the producer to exhibit or place on the film if it (the
International) is satisfied that the production was done
entirely by IATSE members. When Doran asked what
would happen if the production did not carry the IATSE
"bug," Bradford replied that IATSE projectionists have, in
the past, either refused to run the film or have run it
improperly, such as out of focus. Bradford further explained
that some motion picture distributing companies have a
tendency to shy away from distributing pictures without the
"bug" and that while Mulberry Square could do what they
chose regarding hiring, it was a gamble on Mulberry
Square's part.
During the same period of time that these negotiations
were taking place, Donnelly, on several occasions, called his
friend Blynder in Miami and inquired about Blynder's union
membership. On these occasions, Blynder informed Donnel-
ly that he had not yet had his membership reinstated in the
Miami local.
In the first few days of January 1978, Donnelly was in the
Atlanta area scouting locations for the upcoming movie. At
this point, he hired Thomas Lofaro as the second assistant
director for the production which was then scheduled to
start production on January 23. Since Donnelly was leaving
for Switzerland on January 5, he informed Lofaro of the
Blynder situation and instructed him to stay on top of it.
Between January 6 and January 13, Lofaro and Bradford
had two telephone conversations regarding Blynder's situa-
tion. With regard to the first conversation. Bradford testified
that he called Lofaro and explained to him that the first
preference for the hiring of department heads should be
given to qualified Dallas personnel, and he hoped that
Mulberry Square would comply. Lofaro responded that he
was under orders from Donnelly as to how Mulberry
Square's operation would be structured and the basic
personnel commitments for the picture had already been
made. Bradford then told Lofaro that, if Mulberry used
Blynder on the picture, Mulberry Square might not be given
the "bug" by the International because Blynder was not a
member of an IATSE sound local.
Lofaro's account of this conversation differs from Brad-
ford's. According to Lofaro, Bradford informed Lofaro that
he understood Mulberry Square had hired Blynder and that
mentioned in this agreement, it will pick them from the Dallas union prxl on
a nondiscriminatory asis. If such qualified people are not available. the
producer will contact the Union and so advise."
"The crew list was not offered in evidence. Donnelly testified that at the
time the Blynder situation first surfaced in late 1977, he had already hired
four other department heads for production from outside the Dallas area. It is
not clear why, if the names of these other department heads from outside the
Dallas area appeared on the list. Bradford did not raise them as potential
problems at this time. While it appears probable that their names did not
appear on the crew list as of the time the list was first given to Bradford. the
record evidence is insufficient to hase ally findings in this regard.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he (Blynder) could not be used since he was not a member of
an IATSE local. Bradford further informed Lofaro that,
according to his information, Blynder only had membership
in NABET, a rival industry union. Lofaro then told
Bradford that he was unaware of the particular situation and
would have to look into it.
Immediately upon finishing this call with Bradford,
Lofaro called Blynder in Miami and when he questioned
Blynder regarding his union membership he was informed
that while Blynder had been suspended by the Miami
IATSE local he had a union card from a Chicago IATSE
local for film editors as well as a NABET card.
After talking to Blynder, Lofaro called the IATSE film
editors local in Chicago and verified that Blynder was in fact
a member in good standing of the Chicago local.
Lofaro then called Bradford back on either the same day
or the following day. Bradford remembers talking to Lofaro
for a second time but does not recall what was said.
According to Lofaro's account, he informed Bradford that
Blynder was a member in good standing with an IATSE film
editor's local in Chicago. Bradford responded that Blynder's
membership in any IATSE film editor's local was of no
consequence since it had no jurisdiction over the sound
mixer's capacity. Then, according to Lofaro, Bradford
repeated that Blynder could not be used in the Mulberry
Square production.
In resolving the conflict in testimony involving these two
phone calls, I am persuaded that with the exception of
Bradford's alleged blanket statement that Mulberry Square
"could not use Blynder," Lofaro's version should be credit-
ed.'" While Bradford readily admitted telling Doran and
Donnelly that Mulberry Square ran the risk of not getting
the IATSE "bug" if it employed Blynder, he vehemently
denied ever telling Lofaro or anyone else that Mulberry
"could not use Blynder" if it so chose. I credit this denial. As
noted above, Bradford impressed me as a careful and candid
witness who on several other occasions both before and after
this conversation with Lofaro repeatedly told Doran and
Donnelly, Lofaro's supervisors, that he was not telling
Mulberry Square who they could and could not hire but was
merely informing them that they might run the risk of losing
the bug. Both Doran and Donnelly collaborate Bradford's
prior and subsequent statements in this regard. I find it
highly improbable that Bradford, a not unsophisticated
union representative, would, in dealing with Lofaro, issue a
flat edict regarding the use of Blynder when at all other
times he carefully couched his warnings in terms of possible
or probable action by the International.
Subsequent to Lofaro's second conversation with Brad-
ford, Lofaro contacted Donnelly in Switzerland and in-
formed him of the continuing problems they were having
with the hiring of individuals living outside the Dallas area
for the positions of department head. Donnelly instructed
'" The crediting of only portions of Lofaro's testimony is required under the
circumstances of this case. and does not require rejection of his entire
testimony. Carolina Canners. Inc.. 213 NLRB 37 (1974). "Nothing is more
common than to believe some and not all of what a witness says." Edwards
Transportation Company. 187 NLRB 3, 4(1970), enfd. 437 F.2d 502 (5th Cir.
1971).
' Due to the fact that they were talking over satellite. Donnelly had
difficulty in hearing throughout the entire conversation.
"Lofaro in his testimony recalls Bradford also threatening to either
withhold the services of Dallas personnel who had been hired for the
Lofaro to set up a conference call with Respondent in an
effort to resolve the situation. On January 14, a conference
call which lasted 45 minutes to an hour was held with
Donnelly in Switzerland, Lofaro in Atlanta, and Doran and
Bradford in the Dallas area. While all four testified regard-
ing this phone call, Bradford and Lofaro appeared to possess
the best recollections of what was said and, with the
exception of one major factual conflict, their testimony, as
corroborated in part by Donnelly and Doran, is not in
dispute."
Initially either Doran or Bradford opened the conversa-
tion by stating that the purpose of the call was to see if the
parties could get together on a contract since production was
scheduled to start in little more than a week, and the parties
were still far apart on the Union's proposal that all
department heads be hired out of Dallas. Donnelly stated
that he had always had the right and would continue to
reserve the right to hire as department heads the best
qualified individuals whether they lived in Dallas or not.
Bradford answered that he felt that when hiring department
heads Mulberry Square had the contractual obligation to
hire qualified Dallas-based personnel when available. An
argument then ensued over whether certain members of the
Dallas local were qualified to act as department heads on a
major motion picture. Without conceding to Donnelly's
point regarding the lack of qualified people in Dallas,
Bradford suggested that, if Mulberry Square was not going
to use its members as department heads, Mulberry Square
should at least agree to use its memmers as the assistants to
the department heads. During this portion of the conversa-
tion, Bradford specifically stated that, if Mulberry Square
persisted in using Blynder as the sound mixer, at least
Donnelly should agree to use a Dallas-based individual as
Bylnder's boom man. Donnelly refused, stating that Bylnder
would not come for the production if his son Scott was not
present to work as his boom man. Donnelly further stated
that he had already made firm commitments to the assistants
and he would not break up the department heads and their
assistants. Bradford then stated in a rather heated manner
that Blynder was not a member of any IATSE sound local
and, if he were employed by Mulberry Square on the
production, Bradford would have no alternative but to
contact the International and recommend that the picture
not be given the International seal." Donnelly then answered
that he felt he could straighten out Blynder's problem with
the International himself.
At or about this point, Donnelly reminded Bradford that
he had already made several concessions to Respondent by
hiring, at Bradford's request, three Dallas-based members,
one of whom was Ann Major Sloan, as an assistant in the
wardrobe department." Bradford then agreed to Donnelly's
request that Mulberry Square be permitted to hire two
additional individuals, Cindy Lou Burrows, and Joe Clay-
production or to get the International to strike Mulberry Square over
Blynder's use. Though Bradford denied ever making this type of threat, he
readily admitted that he may have stated during the early portion of this
conference call that he would withhold the services of Dallas members unless
a new contract could be reached. Neither Donnelly nor Doran corroborate
that portion of Lofaro's testimony regarding the threat to strike over the use
of Blynder. I credit Bradford's denial in this regard. See fn. 16. above.
'" Ann Major Sloan was the wife of P'hillip Sloan. Respondent's assistant
business agent.
822
DALLAS STAGE EMPLOYEES. LOCAL 127
ton, an electrician, both members of the Atlanta IATSE
local. The lengthy phone call ended with the understanding
that Donnelly would contact the International regarding
Blynder and Bradford would go back to his membership to
see what could be worked out on the new contract.
On January 17 Lofaro called Blynder and informed him
that Mulberry Square was under pressure from Respondent
to use a Dallas-based sound mixer. Lofaro indicated that he
would get back in touch with Blynder.
On January 19, Lofaro again called Blynder and informed
him that the pressure from Respondent was such that unless
Blynder could get the International to intervene, Blynder's
job was in jeopardy.
Blynder, after receiving this latter call from Lofaro, called
Walter Diehl, the International president, for assistance.
Diehl indicated that he was aware of Blynder's situation but
would not interfere. When Blynder asked Diehl if Diehl
would give him the option of a new card, Diehl answered no,
but that if Blynder did make a formal application to Local
316, he (Diehl) would "walk it through."
Blynder then called Lofaro and relayed the substance of
his phone conversation with Diehl. Lofaro in turn called
Donnelly in Switzerland and filled him in on his private
discussions with Blynder. Donnelly then instructed Lofaro
to investigate using New York personnel for the positions of
sound mixer and boom man in the event that Mulberry
Square had to replace Blynder and his son Scott on the
production.
Following Donnelly's orders, Lofaro contacted the New
York IATSE local and got a list of eligible sound mixers.
Lofaro then contacted James Sabbott, an experienced sound
mixer whose name was on the out-of-work list, explained the
situation to him, and offered him the job if Blynder were
replaced. Sabbott agreed and informed Lofaro that he would
bring along Peter Ilardi, a New York-based boom man who
worked with Sabbott. Lofaro agreed that, if Blynder were
replaced, Mulberry Square would also need an experienced
boom man to replace Scott Blynder.
Lofaro briefed Doran about the developments and Doran
instructed Lofaro to terminate Blynder. Apparently thinking
that Lofaro had immediately followed through on his
instructions, Doran informed Bradford at one of the fre-
quent bargaining meetings that were then taking place on a
nearly daily basis that the decision to replace Blynder had
been made. Bradford responded that Respondent was not
attempting to tell Mulberry Square who they could and
could not employ.
Upon Donnelly's return from Switzerland on January 24
or 25, he called both Sabbott and Ilardi and assured himself
that both were available to start the movie, which by then
had been rescheduled to start on January 30.2" Donnelly then
called Blynder and informed him that the situation was very
bleak, but that he would make a last ditch effort by talking
directly to Diehl and Bradford. Donnelly then called Diehl
in New York to see if he could still resolve the situation
" Donnelly was personally acquainted with Ilardi's work and competency
and therefore he did not rely solely on Sabbott's recommendation.
:' In this call. Donnelly also indicated to Blynder that he thought Blynder
had been discriminated against and he would be willing to assist Blynder in
any action Blynder might take against Respondent. Respondent contends that
this remark as well as Donnelly's admitted friendship with Blynder are
sufficient to discredit Donnelly's testimony, especially when testifying
without terminating Blynder. Donnelly asked if there were
anything Diehl could do to reinstate Blynder's card in Local
316. Diehl said he could or would do nothing. When
Donnelly asked what would happen if Mulberry Square used
Blynder on the production, Diehl replied that there would be
a possibility that the International would withhold the seal
of approval from release of the movie.
Donnelly next called Bradford and asked him to intercede
on Blynder's behalf. Bradford said he could do nothing and
if Mulberry Square chose to use Blynder, the International
might withhold the seal from the production.
Having met with no success in resolving the situation,
Donnelly, on January 27, called Blynder and informed him
that he has being terminated.'
Respondent and Mulberry reached an oral agreement on
the new contract in the latter part of January, and
production commenced on the movie on January 30 without
incident. In addition to Sabbott, Mulberry Square employed
approximately three or four other department heads from
outside the Dallas area. All the department heads employed
on the picture were members of an IASTE production local.
In mid-February, Respondent and Mulberry Square exe-
cuted the new collective-bargaining agreement that had been
orally reached in late January. The new agreement did not
contain any provision requiring that Mulberry Square hire
its department heads from Dallas.
V. DISCUSSION
The General Counsel contends that Bradford's statement
to various representatives of Mulberry Square during the
middle and latter portions of January constituted threats of
coercive action if Mulberry Square employed Blynder, and
that these threats caused Mulberry Square in turn to
terminate Blynder because he was not a member of an
IATSE sound local.
In this defense, Respondent argues that: (I) The General
Counsel's failure to join Mulberry Square as a necessary
party entitles Respondent to a dismissal of the complaint as
a matter of right; (2) Respondent made no actionable threats
of coercive action concerning the employment of Blynder;
and (3) Mulberry Square's actions in terminating Blynder
prior to the commencement of production on "The Double
McGuffin" was not due to any threats that may have been
made.
With regard to Respondent's joinder argument, the
Supreme Court in Radio Officers' Union v. N.L.R.B., 347
U.S. 17 (1954), conclusively resolved this issue when it held:
We find no support for these arguments in the Act. No
such limitation is contained in the language of Section
8(b)(2). That Section makes it clear that there are
circumstances under which charges against a union for
violating the Section must be brought without joining a
charge against the employer under Section 8(a)(3) for
attempts to coerce employees to discriminate are
regarding the duties, responsibilities,. and authorities of the sound mixer,
Despite Donnelly's admitted bias toward Blynder, Donnelly. unlike Camp.
impressed me as an extremely credible and knowledgeable witness when
describing production matters. Camp. Mulberry Square's president, and the
director and producer of "The Double McGuffin" continually fenced with
counsels' and the Court's questions and appeared primarily interested in
rapidly concluding his testimony and attending to more important matters.
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proscribed. Thus, a literal reading of the Section
requires only a showing that the union caused or
attempted to cause the employer to engage in conduct
which, if committed, would violate Section 8(a)(3).
With regard to the question of whether Respondent made
any threats to Mulberry Square regarding the employment
of Blynder, the credible evidence set forth in detail above
establishes that in several different conversations between
January 6 and 27, Bradford not only indicated that Mul-
berry Square ran the risk of the International not granting it
the use of its seal or bug, but unequivocably stated that it
would recommend to the International that it withhold the
granting on the grounds that Blynder was not a member of
an IATSE sound local.'
While there may have been some confusion as to Respon-
dent's position with regard to Blynder in its initial contacts
with representatives of Mulberry Square due to the fact that
Respondent was simultaneously seeking a provision in the
new collective-bargaining agreement requiring that all de-
partment heads be hired from an exclusive hiring hall
administered by Respondent, such confusion, if any existed,
was dispelled in the January conversations. Further, Mul-
berry Square employed four department heads from outside
the Dallas area on its production without objection from
Respondent. All were members of IATSE production locals.
Respondent admits that Bradford made the remarks regard-
ing recommending to the International that it withhold its
seal or "bug" but nonetheless argues that those statements,
under the circumstances of this case, do not constitute
actionable threats under the Act. In this regard, Respondent
argues that it did no more than honestly answer the
Employer's questions concerning the consequences of hiring
nonunion personnel, while at the same time stressing to the
Employer that it could hire whomever it chose. I disagree.
In the second bargaining session held in November 1977,
Bradford did, in response to a direct question by Doran,
explain the possible consequences of Mulberry Square using
a nonunion member on its upcoming production. Had
Respondent's conduct been limited to that conversation, a
contrary result might be warranted. However, such is not
the case. Respondent chose to repeat this warning on four
separate occasions, at least two of which included a strongly
worded "promise" that Respondent would recommend to
the International that the "bug" be withheld.
Although the Union's seal or bug is the registered
trademark of the International, and only the International
has the authority to grant to a producer the right to exhibit
it, Mulberry Square had a reasonable basis for believing that
Respondent could do as it promised, to wit: insure that the
International would deny the use of the seal to Mulberry
Square. In these circumstances, I find that Bradford's
" Contrary to the contention of the General Counsel. the credible evidence
does not establish that Respondent. at any time. threatened to strike or
withhold the services of its members if Respondent employed Blynder.
' I recognize that activity in maintaining the integrity of a union's
established symbol or trademark which has the purpose of promoting the
employment of union members under union conditions may be protected by
the Act. N.L.R.B. v. Circle Bindery. Inc., 536 F.2d 447. 452 (]st Cir. 1976).
However, the courts and the Board have not allowed this object of protecting
the integrity of the Union's label to justify illegal action. Though the question
has usually arisen in a secondary boycott situation. the underlying logic of
those cases seems applicable to the present case. In N.L.R.B. v. Washington-
statements of January regarding the withholding of the
Union's seal or bug are coercive.:'
The final issue to be resolved is whether, by Bradford's
threats, Respondent caused or attempted to cause Mulberry
Square to discriminate against Blynder because he was not a
member of an IATSE sound local. Respondent contends
that Mulberry Square had a fixed intention to use only union
personnel for its upcoming production before it had any
contact with Respondent, and that, therefore, irrespective of
any threats that may have been made by Respondent,
Blynder would have been discharged by Mulberry Square. In
this regard Respondent argues that a condition subsequent
had been placed on Blynder's hiring by Mulberry Square; to
wit: reinstatement of his membership in an IATSE sound
local prior to commencement of production and that
Blynder failed to meet this condition.
In this regard, the record establishes that Donnelly
informed Blynder in August 1977 that his hiring was
conditioned on Blynder's union membership and that even
prior to the time Respondent became aware that Blynder
had been conditionally hired, Donnelly again stressed to
Blynder that he would be terminated by Mulberry Square if
he failed to get his union card reinstated. Notwithstanding
this evidence that Mulberry Square had a fixed intention to
employ only IATSE members in its production, subsequent
events convince me that Mulberry Square would have
retained and employed Blynder in its production irrespective
of his lack of IATSE membership, had not Bradford
threatened retaliatory action by Respondent and the Inter-
national. Motion Picture Studio Mechanics, Local 52, IA TSE
(Michael Levee Productions, Ltd.), 238 NLRB 19 (1978).
In reaching this conclusion, I rely on several factors. First,
in early January, Lofaro, acting on the instruction of his
superiors, informed Bradford that Blynder was a member in
good standing of a Chicago IATSE local for film editors,
and inquired of Bradford whether that membership satisfied
Respondent's objections. Bradford answered that Blynder's
membership in an editor's local was of no consequence to
Respondent. While the matter may have been of no
consequence to Respondent, it clearly indicates that Mul-
berry Square considered Blynder's membership in an IATSE
local as satisfying any conditions that it may have had
placed on Blynder's hiring.
Second, the entire tone of the conference call on January
14 can be described as an attempt on Mulberry Square's part
to reach an understanding with Respondent which would
permit Mulberry Square to use Blynder notwithstanding his
lack of membership in an IATSE sound local. Donnelly, in
an effort to resolve Blynder's situation, pointed out to
Bradford that as a concession to Respondent he had hired
certain Dallas-based personnel, including the wife of an
assistant business agent, when he had been under no
Oregon Shingle Weavers' Council [Sound Shingle Co.]. 211 F.2d 149. 151 (9th
Cir. 1954) a union sought to justify its members' refusal to work with
materials produced by a nonunion signatory manufacturer to preserve the
integrity of the union and seal. In rejecting this contention, the court held "the
union label is registered as a trademark. The Union was entitled to protest its
unlawful use and even to enjoin a threatened unlawful use, but if an act by a
union is an unlawful secondary boycott, the mere fact that it was designed to
proscribe an unauthorized use of a union label will not make the action
privileged. While the object of the union in such a case would be lawful, the
means chosen to achieve that end would be contrary to Section 8(bX4XA) of
the Act. and hence not protected by Section 7 thereof."
824
DALLAS STAGE EMPLOYEES, LOCAL 127
obligation to do so. Clearly, Donnelly in this meeting, sought
a waiver from Respondent of the requirement that Blynder
be a member of an IATSE sound local.
Further evidence that Mulberry Square's desire to hire an
IATSE sound mixer was based solely on its desire to avoid
any problems with the Union is demonstrated by Donnelly's
January 27 phone calls to Diehl, the International's presi-
dent,'" and Bradford. Donnelly, after requesting without
success Diehl's intervention to get Blynder's membership in
Local 316 reinstated, asked what the consequences would be
if Mulberry Square chose to use Blynder anyway. Immedi-
ately following this conversation, Donnelly called Bradford
and asked him to intercede by either making a call to Diehl
or in some other manner that would enable Mulberry Square
to use Blynder. When Bradford refused, Donnelly again
asked Bradford what would happen if Mulberry Square
persisted in using Blynder.
Based on the foregoing, I am persuaded that a nexus does
in fact exist between Bradford's threats and Mulberry
Square's decision to terminate Blynder. Accordingly, I find
that, by Bradford's conduct, Respondent, in violation of
Section 8(b)(1)(A) and (2) of the Act, attempted to cause
and did cause Mulberry Square to terminate Blynder.
Motion Picture Studio Mechanics Local 52 IA TSE (Michael
Levee Productions, Ltd.)., supra.
VI. THE RMEDY
Having found that Respondent violated Section
8(b)(1)(A) and (2) of the Act, I shall recommend that
Respondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act. It having been found that Respondent
unlawfully attempted to, and did, cause Mulberry Square
Productions to discriminatorily deny Bernard Blynder em-
ployment as a sound mixer because he was not a member of
an IATSE sound local and that since the work which
Blynder would have performed has been completed, I shall
recommend that Respondent make Blynder whole for any
loss of earnings suffered by him by reason of the discrimina-
tion practiced against him. Loss of earnings, if any, shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest to be accorded
in a manner set forth in Florida Steel Corporation. 231
NLRB 651 (1977). See, generally, Isis Plumbing and Heating
Co., 138 NLRB 716(1962).
CONC.USIONS OF LAW
I. Mulberry Square Productions is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
:' Respondent objected to the admission of the testimony with regard to
Donnelly's phone conversation with Diehl on the ground that since the
International was not a charged Respondent. the testimony was hearsay. This
testimony was received since it went to the Employer's state of mind in
reaching its decision to terminate Blynder and as such. is clearly admissible
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall. as provided in Sec 102 48
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By attempting to cause and causing Mulberry Square
Productions to terminate Bernard Blynder as a sound mixer
in violation of Section 8(a)(3) of the Act, Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A) and (2) and Section 2(6)
and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record. and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommended:
ORDER:'
The Respondent, Dallas Stage Employees Local 127,
International Alliance of Theatrical Stage Employees, AFL-
CIO, Dallas, Texas, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Mulberry Square
Productions to terminate the employment of Bernard Blyn-
der as a sound mixer, or otherwise to discriminate against
him, in violation of Section 8(a)(3) of the Act because of his
nonmembership in Respondent or another International
Alliance of Theatrical Stage Employees sound local.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in Section
7 of the Act, 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 by
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Make Bernard Blynder whole for any loss of earnings
he may have suffered by reason of the unlawfully caused
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Post at its offices and meeting rooms copies of the
attached notice marked "Appendix." : Copies of said notice,
on forms provided by the Regional Director for Region 16,
after being duly signed by Respondent's representatives,
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 members 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.
of the Rules and Regulations. be adopted by the Board and becone it,
findings. conclusions. and Order, and all obhections thereto shall be deemed
waived for all purposes
>' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted h Order of the
Natlional Labor Relations Board" shall read "Posled Pursuiatil to a Judgment
of the United States Court of Appeals Enforcing an Order of he Natlional
Labor Relations Board "
X25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Deliver to the Regional Director for Region 16 signed
copies of the notice for posting by Mulberry Square
Productions, if willing, in places where notices to employees
are customarily posted.
(d) Notify the Regional Director for Region 16, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
826