Garfield Theater

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 30 (N.L.R.B. 1985)

30 DECISIONS OF NATIONAL. LABOR RELATIONS''BOARD
Moving Picture Projectionists Local No. 150 , Inter-
national Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada (Dynasty Theater,
Inc. d/b/a Garfield Theater) and David Dale
Adams. Case 21-CB-8430
13 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 19 June 1984 Administrative Law Judge
Earldean V. S. Robbins issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief' and the General Counsel filed excep-
tions, a supporting brief, and a brief in opposition
to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Moving Picture Projectionists Local No.
150, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of
the United States and Canada, Los Angeles, Cali-
fornia, its officers, agents, and representatives, shall
take the action set forth in the recommended Order
as modified.
Substitute the following for paragraph 1(b).
"(b) Causing or attempting to cause employers
with whom it has collective-bargaining agreements
' The Respondent has filed a motion for reconsideration, rehearing,
and reopening the record in which it seeks, inter alia, to reopen the
record for the purpose of presenting evidence concerning wages paid to
employees represented by the studio locals, and of wages paid to the pro-
jectionists in the commercial theaters, and also to present evidence on the
importance of geographic factors and employee expectations in defining
the "particular industry" for comparison The Respondent' s motion is
denied In so doing we note that the evidence which it seeks to adduce
has not been shown to be either newly discovered or previously unavail-
able
z In sec I of her decision the judge stated that the Employer derives
gross revenues in excess of $500,000 We note that the complaint alleges
and the Respondent admits that the Employer derives gross annual reve-
nues in excess of $500,000 In sec III,A of her decision the judge stated
that employee Adams had worked within the Respondent's jurisdiction
prior to September 1983 and that he commenced work with the Employ-
er in September 1983, whereas it is clear from the record that the correct
references should have been to September 1982 In that same section the
judge incorrectly stated that the Union dispatched a replacement for
Adams on August 13 rather than April 13 These inadvertent errors are
insufficient to affect the results of our decision
a We shall modify par 1(b) of the judge's recommended Order to cor-
rect an inadvertent omission
requiring' membership in the Respondent as a con-
dition of employment to discharge employees be-
cause of their failure to pay, as condition precedent
to becoming a member of the Respondent, a $2000
initiation fee, or any other sum as an initiation fee
which is excessive in all the circumstances."
MEMBER HUNTER, dissenting in part.
I agree with my colleagues that the Respondent
violated Section 8(b)(5) by charging an initiation
fee which is excessive under all the circumstances,
and that the Respondent violated Section
8(b)(1)(A) and (2) by causing or attempting to
cause Adams' discharge because of his failure to
pay the excessive initiation fee. Contrary to my
colleagues, however, I do not agree with the
remedy recommended by the judge.
The judge recommended that the Respondent be
ordered to cease and desist from giving effect to its
$2000 initiation fee as a condition of employment,
and that the Respondent be ordered to refund that
portion of all such excessive initiation fees collect-
ed since 25 November 1982. The judge declined,
however, to determine the exact amount which
should be refunded, leaving such determination for
the compliance stage of the proceeding.
As noted by the judge, it is well established that
the Board is not empowered to set the amount of a
union 's initiation fee, but is charged merely with
the determination of which fees are discriminatory
or excessive. Stage Employees IATSE Local 839
(Animated Film), 121 NLRB 1196 (1958). In all
prior excessive initiation fee cases where the Board
has ordered a refund, the fee found to be excessive
was a recent increase of a prior existing fee not al-
leged to be excessive, and accordingly the Board
ordered the respondent to refund the amount of the
increase. However, here, in contrast to the prior
cases, the record indicates that the Respondent has
been charging the same fee for several years, no
recent increase is involved, and the record is
devoid of evidence as to what a reasonable initi-
ation fee would be.
In finding that the Respondent's initiation fee
was excessive, I note that the Respondent, al-
though introducing evidence as to the initiation
fees charged by other locals, failed to adduce evi-
dence of the basis of those fees or the nexus be-
tween the initiation fees charged by those locals
and the wages earned by the employees affected.
In short, the Respondent failed to present evidence
to rebut the General Counsel's prime facie case
that the Respondent's entire initiation fee was ex-
cessive.
Accordingly, our finding that the entire fee is ex-
cessive dictates that the logical remedy to be im-
274 NLRB No. 6
STAGE 'EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER)
posed is a refund of the entire fee. The 1 Respond-
ent, as noted, failed to produce any evidence of the
reasonableness of the fee or any part of it, and the
Board lacks utterly any authority to set initiation
fees. My colleagues' decision to allow the Re-
spondent to produce such evidence in a compliance
proceeding effectively creates an opportunity for
the Respondent to relitigate the issue of excessive-
ness presumably of part or even all of the fee, and
potentially to destroy our substantive finding here.
I refuse to allow the Respondent to relitigate the
unfair labor practice found here in a compliance
proceeding, and would conclude this matter by or-
dering the Respondent to refund all initiation fees
paid since 25 November 1982.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge.
This matter was heard before me in Los Angeles, Cali-
fornia, on February 23, 1984. The charge was filed by
David Dale Adams (Adams) on May 25, 1983, and a
copy was served on Moving Picture Projectionists Local
No. 150, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the
United States and Canda (Respondent) on May 26, 1983.
The complaint, which issued on January 6, 1984, alleges
that Respondent violated Section 8(b)(1)(A), (2), and (5)
of the National Labor Relations Act. The basic issue is
whether Resondent's initiation fee is excessive.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material herein, Dynasty Theater, Inc.
d/b/a Garfield Theater (the Employer) is a California
corporation engaged in business as a movie theater in Al-
hambra, California. The Employer, in the normal course
and conduct of its business operation, derives gross reve-
nues valued in excess of $500,000 and annually pays film
rentals valued in excess of $2000 to film distributors
which obtain and distribute films produced outside the
State of California.
The complaint alleges, the parties stipulate, and I find
that Respondent is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
31
The facts herein are mostly undisputed. Respondent is
the exclusive bargaining representative of the Employer's
employees in a unit composed of all regular projection-
ists, regular relief projectionists, and vacation projection-
ists at the Garfield Theater Respondent and the Em-
ployer are parties to a collective-bargaining agreement
which requires membership in Respondent as a condition
of employment for these unit employees.
Prior to September 1983,1 Adams had worked within
the jurisdiction of the Union as a projectionist on jobs of
a temporary nature In September, he bid upon, and
won, a full-time job as projectionist at Garfield Theater,2
which he commenced in September 1983 at a wage rate
of $6.85 an hour for a 42-hour week.
Shortly thereafter, Adams contacted Ralph Kemp, Re-
spondent's business manager, and told him he did not
have the $2000 Kemp asked if he could pay $50 a week
Adams said no, because he was paying too much in
dues3 already and he could not afford the additional pay-
ment Kemp said he would try to get Adams extra work
during the summer. Adams said okay. On April 12,
Adams was notified by the Union that this was his last
day of work. Alan Jacquish, Respondent's secretary-
treasurer, admits that Adams was terminated on that date
because he failed to join the Union. On August 13, the
Union dispatched another projectionist to the Employer
to replace Adams.
On May 25 Adams filed the charge herein, and the
complaint issued on October 28. On November 29, coun-
sel for the General Counsel held a settlement conference
with the parties Adams, Kemp, and counsel for Re-
spondent were present Adams testified that, during this
conference, Kemp said something to the effect that if this
matter was litigated, Adams would never work again as
a projectionist or work in the industry again. On cross-
examination Adams testified that, within an hour after
the conference concluded, counsel for the General coun-
sel asked him if he recalled that statement by Kemp
Adams further testified that he really did not recall the
statement. Nevertheless he signed an affidavit which
states, in pertinent part:
During the discussion [at the settlement conference]
Kemp told me that what we were talking about was
the job and not the money and that if I wanted it he
would put me back to work He told me that if the
case was litigated I would never work as a projec-
tionist anymore . As I recall he said that I would
never work again.
Thereafter, on redirect examination, he testified that
counsel for the General Counsel refreshed his recollec-
tion and that portion of his affidavit was, at the time, his
' Unless otherwise indicated, all dates hereinafter will be in 1983
2 Full-time projectionist jobs are obtained through a seniority bidding
system
3 Apparently he was referring to the service fee paid by nonmembers
32 DECISIONS OF'NATIONAL^LABOR RELATIONSIiB6ARD
best recollection of what was said in the" settlement con-
ference.
Kemp denies making such a statement. According to
him, what he said was that the entertainment industry in
which Adams apparently had chosen to work is an orga-
nized industry and that Adams would have to join some
union After being shown his prehearing affidavit, Kemp
admits that the following statement contained in his affi-
davit explains his intentions:
What I was thinking when I made this statement4
was about time. If we were to be found guilty of
the violations alleged, we could appeal to the Board
and that might take two years. We could then, if
found guilty, appeal to the 9th Circuit Court of Ap-
peals and that might take two or three more years.
What I was thinking of was if he wanted to work in
the industry he would have to join a union anyway.
My true intentions were to get him back to work as
soon as possible.
Kemp admits the Employer was told Adams refused
to join the Union and that Adams was removed from the
job. However, according to Kemp, as soon as he learned
that Adams had been removed from the job, he arranged
to have Adams reinstated since he felt there had been a
failure of communication within Respondent's office in
that the secretary-treasurer's office did not know of the
arrangement between Adams and Kemp regarding
Adams working summer jobs or extra jobs to pay his ini-
tiation fee
Following this settlement conference, Adams was rein-
stated and attempted to withdraw the charges herein.
However, the Regional Director refused to approve the
withdrawal request.
B. Conclusions
The General Counsel argues that the $2000 initiation
fee is excessive within the meaning of Section 8(b)(5) of
the Act, which states that it shall be an unfair labor prac-
tice for a labor organization
(5) to require of employees covered by an agree-
ment authorized under subsection (a)(3) the pay-
ment, as a condition precedent to becoming a
member of such organization, of a fee in an amount
which the Board finds excessive or discriminatory
under all the circumstances. In making such a find-
ing, the Board shall consider, among other relevant
factors, the practices and customs of labor organiza-
tions in the particular industry, and the wages cur-
rently paid to the employees affected.
There is no contention herein that the initiation fee re-
quired of Adams was discriminatory . However , it is well
settled that the terms "excessive" and "discriminatory"
in Section 8(b)(5) are used in the disjunctive and a find-
ing of either is violative of the Act. Further, a determi-
nation as to what constitutes an excessive fee is to be
made on a case-by-case basis. Auto Workers Local 153
(Bendix Aviation), 99 NLRB 1419 (1951); JATSE Local
4 The affidavit does not purport to state what Kemp actually said
839 (Stage Employees) (Animaled Film), 121 NLRB 1196
(1958).
As set forth above, the Act specifically provides that
in determining whether fees are excessive , "the Board
shall consider , among other relevant factors , the prac-
tices and customs of labor organizations in the particular
industry , and the wages currently paid to the employees
affected ." In the instant case , Respondent seems to be
contending that it is in the motion picture industry and
that the initiation fees required by the unions therein are
the ones to be considered . The General Counsel con-
tends that the "particular industry" herein is the projec-
tion of motion pictures within commercial theaters.
I agree with the General Counsel . The employees rep-
resented by Respondent are involved in no way in the
production of motion pictures.5 In reaching this conclu-
sion, I have fully considered Respondent's contention
that its initiation fees should be compared with that of
IATSE Local 165 and Local 44, whose initiation fees are
$2000 and $2050, respectively . Local 165 has jurisdiction
over projectionists responsible for in -house screening in
motion picture production studios . Thus, they are actual-
ly a part of the motion picture industry . The same
cannot be said for Respondent . Local 44 has jurisdiction
over props or set decorators . There is nothing in the
record to indicate in what respect the initiation fee re-
quired by this local is a relevant factor to consider in de-
termining whether the initiation fee required by Re-
spondent is excessive unless it is determined that Re-
spondent represents employees in' the motion picture in-
dustry. I find that Respondent is not in that industry.
Accordingly, I find that the relevant industry for com-
parison is the projection of motion pictures within com-
mercial theaters . The record establishes that in the south-
ern California area initiation fees in that industry range
from $450 in San Luis Obispo to $1000 in Long Beach
and Garden Grove.6 The record contains no evidence as
to the relationship between the initiation fees of these
southern California locals and the wage rates paid in the
industry.
The legislative history indicates that the purpose of
Section 8(b)(5) is to prevent unions, by the device of ex-
orbitant initiation fees, from circumventing the prohibi-
tion against closed shops contained in Sections 8(a)(3)
and 8 (b)(2). The Board , in attempting to achieve this
purpose, has determined that the relevant wages are the
starting wages since the employees who pay an initiation
fee are those in the lowest wage bracket . However, the
5 I note that the Dictionary of Occupational Titles, at 1165, distinguishes
between the amusement and recreation industry , which includes occupa-
tions "concerned with providing amusement and recreation facilities, and
presenting commercial entertainment in the flesh in motion picture and in
broadcasting ," and the motion picture industry which is grouped with
television and theatrical productions to include occupations concerned
with the "production of motion pictures and radio and television broad-
casts "
6 The following initiation fees are required by projectionists locals in
the general southern California area IATSE Local 215 (Bakersfield)-
$500, IATSE Local 297 (San Diego)-$625, IATSE Local 504 (Garden
Grove and Santa Ana)-$1000, IATSE Local 521 (Long Beach)-$1000,
IATSE Local 577 (San Bernardino )-$570, IATSE Local 709 (Ven-
tura)-$500, and IATSE Local 762 (San Luis Obispo)-$450
STAGE, EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER)
Board has never determined a standard ratio. Rather it
has concluded.?
. . that Congress intended the Board to examine
alleged violations of [Section 8(b)(5)] on a case-to-
case basis and in each case to decide whether
"under all the circumstances," with due consider-
ation for such "practices and customs," the initi-
ation fees required were either excessive or discrimi-
natory Nor does it follow, as the Trial Examiner
suggests, that this interpretation would mean the ex-
oneration of unlawful conduct because of long-es-
tablished practice. The term "discrimination" as
used in this context is a general term, involving
such flexible concepts as reasonableness and motiva-
tion as well as disparate treatement. Obviously, a
union's past practice and customs were not intended
by Congress to be controlling considerations. But
Congress specifically provided that they were to be
considered.
Although the first 8(b)(5) cases considered by the
Board involved only allegations of discriminatory fees,
there have been several cases involving allegations that
fees, or increases in fees, were excessive as well as dis-
criminatory. In these latter cases, the Board has conclud-
ed that the discriminatory nature of the fee is a signifi-
cant factor to be considered in determining whether a
fee is excessive Further, it has found fees to be excessive
which were not also discriminatory within the meaning
of Section 8(b)(5).8
These decisions indicate that, in determining what is
excessive, the Board looks at what percentage in the ini-
tiation fee is of an employee's weekly salary and how
that compares to the initiation fee/wage ratio utilized by
other labor organizations in the industry In Animated
Film,9 an increase in initiation fee from $50 to $250 in
order to discourage entrance into the animated cartoon
industry in southern California was found excessive
where starting wages ranged from $46.10 to $154 38 and
other unions with weekly starting salaries of $55 50,
$92.24, and $75 had initiation fees of $250, $200, and
$250, respectively In finding the fees excessive and dis-
criminatory in all the circumstances, the Board stated:
The Respondent . . . manifested a clear intent to
accomplish precisely the result which Section
8(b)(5) seeks to avoid-the maintenance of a closed
shop through the imposition of an initiation fee in
an amount calculated to discourage entrance into
the industry [footnote omitted]. Moreover, the Re-
spondent failed to demonstrate that the fivefold in-
crease in its initiation fee was prompted by financial
necessity, the cost of providing increased benefits or
7 Auto Workers Local 153 (Bendix Aviation), 99 NLRB 1419, 1421
(1951)
8 Boilermakers Local 749 (California Blowpipe & Steel Co),' 192 NLRB
502 (1981)
8 Stage Employees IATSE Local 839 (Animated Film), 121 NLRB 1196
(1958)
33
any other reason beyond its desire to promote a
more closed union.4
4 We do not adopt, as it is in any event unnecessary to our de-
- cision, the Trial Examiner's statement that "If it were to be shown
that all labor organizations, wherever existing, uniformly and for
years, followed a practice of charging an initiation fee of $250
from employees in whatever salary ranges in animated film indus-
try, the conclusion reached could not be affected "
In agreement with the trial examiner, the Board declined
to make any recommendations as to the amount of any
initiation fee which the respondent may establish, deem-
ing that the Board is not empowered to set the amount
of a union's initiation fees but is charged merely with the
determination of which fees are discriminatory or exces-
sive. However, it did order that all sums in excess of $50
paid as initiation fees be returned.
In St. Louis Bakery,1° an increase in the initiation fee
from $75 to $250 in order to enhance job security of
members by restricting employment in the industry was
ifound excessive where starting wages were $60 a week"
and a $100 cash bond was required by the employer
upon commencing employment. Other labor organiza-
tions in the area required initiation fees in the amounts
roughly ranging from 27 to 80 percent of the starting
wage for a week. The Board ordered the union to refund
all sums in excess of $75 paid as initiation fees.
In Triangle Publications,12 an increase in initiation fee
from $50 to $500 in order to restrain the employer in the
hiring of part-time employees who were not union mem-
bers was found excessive where the weekly starting
salary ranged from $90 to $95 a week; part-time employ-
ees who had no guarantee of such earning and tempo-
rary employees had no guarantee of continued employ-
ment, no other union in the area charged comparable
fees, the next highest being $150; and the increase was
tenfold. As to this latter factor, the Board stated (135
NLRB at 636).
An increase in initiation fees from $50 to $500 is not
substantial and, to one seeking employment in the
industry, may well be so staggering as to preclude
acceptance of employment. Such an increase de-
mands explanation to bar a presumption that it is
not at least excessive.
The Board further found (id. at 637 fn. 14) that the union
offered insufficent evidence in support of its claim that
the initiation fee was required to ensure enough income
to enable it to operate and concluded that "in any event
. . the Union's financial problems may not be solved by
imposition of a fee which is either discriminatory or ex-
cessive under Section 8(b)(5)." The union was ordered to
refund all sums in excess of $50 paid as initiation fees.
10 Teamsters Local 611 (St Louis Bakery Employers), 125 NLRB 1392
(1959)
11 Ultimately an employee could average as much as $8595 a week
12 Television & Radio Broadcasting Studio Employees Local 804 (Triangle
Publications), 135 NLRB 632 (1962), affd 315 F 2d 398 (3d Cir 1963)
34 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
In American.''Broadcasting, 13 ' a New .York union's .-in-
crease in-initiation fee from a flat $150 for `everyone to a
sliding scale 'of -$150 for employees-with weekly wages
under $1t19, $500 for those with weekly wages from $119
to $167 99, $750 for those with weekly-wages.€rom 6168
to $211.99, and $10000• for those with weekly=wages of
$212 and above was implemented in order to 'restrict the
hiring of temporary and vacation relief employees Most
vacation relief employees received weekly wages of $130
to $140. Other unions in the industry located in New
York, Chicago, and Los Angeles required employees
who make wages comparable to those of the employees
involved therein to pay initiation fees ranging from $50
to $125. The trial examiner concluded (164 NLRB at
245).
Indeed, it is fair to say that any initiation fees adopt-
ed from discriminatory motives must in the nature
of things be excessive. The discriminatory object
can hardly be otherwise accomplished. It is also ap-
parent that an increase in initiation fees of more
than threefold at the minimum and more than six-
fold at the maximum must be excessive, at least pre-
sumptively. However, the Union produced no evi-
dence to show that the increase in initiation fees
was justified under all the circumstances [footnote
omitted].
It also seems quite immaterial that . . . the Union
may have been willing to accept payment of initi-
ation fees in installments , or that employees of NBC
and ABC may work overtime, and thus earn pay in
excess of their base salaries . The reasonableness of
the initiation fees must be judged in terms of their
possible rather that their actual effects, and in terms
of the power which they gave the Union rather
than in terms of the actual exercise of that power
The Board adopted the trial examiner 's finding and con-
clusions, but noted at footnote 2 that in adopting the
conclusion that the initiation fees were excessive it need
not rely on the findings with respect to the fees charged
by the unions in Chicago and Los Angeles. The union
was ordered to refund all sums in excess of $150 paid as
initiation fees
In New Orleans Steamship Association , 14 an increase in
initiation fee from $500 to $10001-5 in order to discourage
the entrance of casuals into the stevedoring industry in
New Orleans was found excessive where the weekly
starting wage was $170 and a sister local in the same
port required an initiation fee of $500.16 The union was
ordered to refund all sums in excess of $50017 paid as
initiation fees.
15 Broadcast Employees NABET Local 11 (American Broadcasting), 164
NLRB 242 (1967)
14 Longshoremen ILA Local 1419 (New Orleans Steamship Assn), 186
NLRB 674 (1970)
15 During the preceding 8 years, the initiation fee fluctuated from $270
for a period of about 4 years to $500 for 18 months to $270 for 8 months
to $500 for 1 year
In National. Broadcasting' 8 an increase in initiation fee
from '2 weeks' salary ($450 to $550) to 4 weeks' salary
($900 to' $1100) in order to discourage the hiring of non-
members was found excessive. A national cross-section
of initiation fees in the graphic arts industry reveals initi-
ation fees ranging from approximately $4 to $500 and
wage rates roughly comparable to those herein except
for three unions with significantly lower wages whose
initiation fees were at the lower end of the range and one
with substantially higher wages and a $500 initiation fee.
The union was ordered to refund all sums in excess of 2
weeks' salary as initiation fees.
In California Blowpipe, supra, 192 NLRB 502 (1981),
the union required an initiation fee of $200 for mechanics
and a $150 fee for helpers and a reinstatement fee from
dues-delinquent members of $300 for mechanics and $250
for helpers. The collective-bargaining agreement provid-
ed wage rates of $4 41 for a journeyman with a 30-cent-
an hour shift differential. Helpers received $3 to $3.50 an
hour with shift differentials up to 26 cents. No other
union had a reinstatement fee in excess of its initiation
fee. There was no contention that the reinstatement fee
was discriminatory The trial examiner concluded (id at
507-508):
Here, then the circumstances to be considered in-
clude (1) the penal nature of the higher reinstate-
ment fee, (2) the fact that $250 is equal to some-
thing close to 2 weeks' take-home pay for at least
some of the employees [footnote omitted], a higher
percentage of take-home pay than is required by
other unions in the area, including sister locals of
Respondent, and (3) the fact that, in the industry
here involved and in the general area of Respond-
ent's location, nine other unions, including four
sister locals of Respondent, have lower reinstate-
ment fees than Respondent and have reinstatement
fees no higher than their original initiation fees al-
though their members' rates of pay are the same as
here
Considering all the circumstances, then I con-
clude and find that Respondent's reinstatement fee
. . . was excessive under all the circumstances,
within the meaning of Section 8(b)(5) of the Act
[footnote omitted].
The Board adopted his finding and, since no contention
was made that the initiation fee was excessive, the union
was ordered to refund that portion of the reinstatement
fee in excess of the amount required for initiation fee.
In Firestone Plastics,19 the Board adopted the adminis-
trative law judge's finding that an increase in initiation
is The trial examiner considered immaterial in view of the Board's
footnote in American Broadcasting, supra, 164 NLRB 242, the initiation
fees required by sister locals along the Gulf Coast in Texas, Alabama,
and Mississippi
17 The General Counsel conceded that an initiation fee of $500 was
not excessive in this case
18 Stage' Employees IATSE Local 841 (National Broadcasting), 225
NLRB 994 (1976)
19 Teamsters Local 326 (Firestone Plastics Co), 253 NLRB 551, 555
(1980)
STAGE EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER)
fee from $100 to $300 was not excessive. Initiation fees
required by other unions ranged from $5 to $50 and most
of the wage rates were comparable to the wage rates
therein. There was no contention that the fee was dis-
criminatory However, the administrative law judge con-
cluded:
. . unlike a "discriminatory" initiation fee, which
embraces elements of motives and of disparate treat-
ment, an "excessive" initiation fee has a more abso-
lute meaning which does not depend upon its
motive, its purpose, or its object.
The administrative law judge further concluded (id. at
557) that the $250 difference between the respondent's
initiation fee and the next highest fee was not excessive,
stating:
The object of the statute is to outlaw initiation fees
which are so exorbitant that they discourage em-
ployment. The most logical factor bearing upon this
object is the relationship between the initiation fee
and the wages-certainly not the initiation fee in
other plants. Of what significance then is the factor
of the practices and customs of labor organizations
in the particular industry? I believe this factor
comes into play less to assist in identifying unlaw-
fully high initiation fees than to justify initiation fees
that may be high in relation to wages, as, for in-
stance, in the construction trades [footnote omitted].
The Board adopted the administrative law judge's find-
ing that the initiation fee, which was 109-112 percent of
the weekly wages,20 was not excessive but found it un-
necessary to rely on the administrative law judge's state-
ment that a review of Board cases led him to conclude
that an initiation fee which is less than two times the
weekly earnings of the employees affected is not, absent
unusual factors, excessive.
Although there are few cases involving excessive fees
without an allegation of discriminatory intent, those
cases indicate that in determining what is excessive
where the amount of the fee is not used to achieve the
object Section 8(b)(5) seeks to avoid, the Board accords
considerable weight to the ratio between the initiation
fee and the weekly starting wages of the affected em-
ployees. Slightly more than the wage for 1 week has
been found not excessive.
The only case where the Board found fees excessive in
the absence of an allegation of discrimination within the
meaning of Section 8(b)(5) was California Blowpipe,
supra, 192 NLRB 502 (1981), where a reinstatement fee
for dues-delinquent members which was $100 higher
than the initiation fee was found excessive. In all other
cases, the initiation fee was increased with an intent to
achieve the object Section 8(b)(5) seeks to avoid-main-
tenance of a closed shop through the imposition of an
initiation fee in an amount calculated to discourage en-
trance into the industry. Yet there is language in some of
those decisions that can afford some guidance in deter-
mining whether a fee is excessive in a nondiscriminatory
20 Weekly wages were $268 29 to $276 49
35
context. Thus, in Triangle Publications, supra, 135 NLRB
632 (1962), where the initiation fee was increased tenfold
to $500, which was in excess of 5 weeks' salary, the
Board stated that to one seeking employment in the in-
dustry, the fee may well be so staggering as to preclude
acceptance of employment Further, the Board conclud-
ed such an increase demands explanation to bar a pre-
sumption that it is not at least excessive. Similarly a
threefold to sixfold increase in initiation fee which was
roughly 3-1/2 to 4-1/2 weeks' salary was found presump-
tively excessive. American Broadcasting, supra, 164
NLRB 242 (1967).
Here, the $2000 initiation fee amounts to about 7
weeks' salary. I find this presumptively excessive. Re-
spondent's sole argument in support of the reasonable-
ness of the fee is that a studio projectionists union in the
Los Angeles area also has a $2000 initiation fee and a set
decorators union in Los Angeles has a $2050 initiation
fee. However, there is no evidence as to the wage rates
prevailing in the collective-bargaining agreements of
these unions and both of them are in the motion picture
industry-an industry devoted to the production of
motion pictures.
Respondent specifically argues that the initiation fee
charged by the other Los Angeles projectionists union is
relevant because:
Local 150 is subject to the same intense scrutiny
by producers, directors, distributors and actors of
the films they have produced, directed or acted in
since they go to the theaters in the Hollywood-Los
Angeles area As a consequence in collective bar-
gaining with the employers, there is an implied un-
derstanding that the quality of the projectionists
must bear a higher standard since they are subject
to greater and immediate criticism.
I find this argument unpersuasive, particularly since the
record contains no supporting evidence beyond a conclu-
sionary statement. Further, as set forth above, I conclude
that Respondent is not in the motion picture industry
Further, even assuming arguendo that the two unions
referred to by Respondent are in the same industry as
Respondent and/or that the circumstance described by
Respondent, as set forth above, is a relevant factor to be
considered, I conclude that the evidence as to the prac-
tice and customs of these two unions is insufficient to
overcome the impact of the ratio of Respondent' s initi-
ation fee to wages, which I find is so disproportionate
that the fee must be considered exorbitant and one which
to those seeking employment as projectionists in com-
mercial motion picture theaters "may well be so stagger-
ing as to preclude acceptance of employment." Triangle
Publications, supra, 135 NLRB 632 (1962).
Accordingly, I find that Respondent's initiation fee of
$2000 is excessive. I further find that by causing the Em-
ployer to discharge Adams because of his failure to pay
this excessive initiation fee, Respondent has violated Sec-
tion 8(b)(2) and (1)(A) of the Act.
The complaint also alleges that Kemp's statement to
Adams at the. settlement conference constituted a threat
in violation of Section 8(b)(1)(A) of the Act. I credit
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kemp's denial that he made such a statement. In this
regard I found Adams' testimony to be contradictory
and that he seemed to be susceptible to suggestion. I
therefore conclude, particularly in view of his uncontra-
dicted testimony that his recollection required refreshing
by way of leading questions at a time less than 1 hour
after the statement was allegedly made, that I cannot
rely on his prehearing affidavit. Accordingly, I find that
the General Counsel has failed to establish that Kemp
threatened Adams with loss of employment, in violation
of Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Dynasty Theater, Inc. d/b/a Garfield Theater, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act,
3. By requiring as a condition of employment an initi-
ation fee in excess of 700 percent of the weekly salary of
lower paid employees, Respondent has violated Section
8(b)(5) of the Act.
4. By causing the discharge of David Dale Adams for
failure to pay an excessive initiation fee, Respondent has
violated Section 8(b)(2) and (1)(A) 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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of the Act, I shall
recommend that it be ordered to cease and desist there-
from and that it take such affirmative action as will ef-
fectuate the purposes of the Act.
Having found that Respondent has been charging an
initiation fee which I have concluded is excessive, I shall
recommend that Respondent cease giving effect to its re-
quirement of a $2000 initiation fee as a condition of em-
ployment, and that Respondent refund to all employees
of employers with whom Respondent has collective-bar-
gaining agreements containing a union-security clause,
valid under Section 8(a)(3) of the Act, that portion of all
initiation fees paid to Respondent on or since November
25, 1982, which is excessive, with interest thereon as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).
Hence I must consider what is the appropriate amount of
such refund Board cases give no definitive guidelines
since , in all of the cases where the Board has found fees
to be excessive, the fee involved was a recent increase.
Thus the restitution remedy was simply to refund all
sums paid in excess of what was charged prior to the un-
lawful increase. Here there is no such base figure. Fur-
thermore, it is well established that the Board is not em-
powered to set the amount of a union's initiation fee but
is charged merely with the determination of which fees
are discriminatory or excessive. Stage Employees IATSE
Local 839, supra, 121 NLRB 1196 (1958). Yet it is clear
that restitution of such fees to the extent they are exces-
sive is necessary to effectuate the purposes of the Act.
The General Counsel contends that a proper and ap-
propriate remedy may, be fashioned by reviewing prior
Board cases in the area and the fees charged by other
southern California unions in the industry without deter-
mining whether those fees, or the level reached after res-
titution by Respondent, are per se not excessive. The
General Counsel specifically argues that Respondent
should be ordered to refund all sums in excess of 2
weeks' salary ($575). In choosing this figure, the General
Counsel relies upon dicta in Firestone Plastics, supra, 253
NLRB 551 (1980), where the administrative law judge
stated that absent unusual circumstances a fee less than
twice the weekly earnings of the employees affected is
not excessive. However, the Board found it unnecessary
to rely on that conclusion. The General Counsel further
argues that this amount is appropriate since, when com-
pared with the fees charged by other unions in the indus-
try, it is within 10 percent of the median fee of $625,
with three labor organizations charging less and four
charging mote than $575. Respondent does not address
itself to this question.
Although there may be a certain logic to the General
Counsel's position, I find that the record contains insuffi-
cient evidence to determine what, in the circumstances,
would constitute appropriate restitution, particularly
since the record is devoid of evidence as to the wage
structure in the collective-bargaining agreements of these
other unions and also of evidence as to whether relief
projectionists represented by Respondent ever successful-
ly bid on multiscreen jobs2 i which apparently carry a
higher wage rate. If so, it may be that a sliding scale
should be considered. Further, although I considered the
possibility insufficient to affect my conclusion that the
fees herein are excessive, it may be, as noted above, that,
in all the circumstances, the initiation fees of the studio
projectionist union in Los Angeles and its ratio to wages
is a relevant factor to consider along with those of other
unions in southern California in the commercial theater
industry. Accordingly, I shall recommend that the exact
amount of the restitution order be left to the compliance
stage of this proceeding.
I shall further recommend that Respondent make
David Dale Adams whole for any loss of earnings suf-
fered by him as a result of Respondent's discrimination
against him in the manner set forth by the Board in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon as prescribed in Florida Steel Corp., supra, 231
NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondent, Moving Picture Projectionists Local
No 150, International Alliance of Theatrical Stage Em-
21 Garfield is a single screen theater
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
STAGE EMPLOYEES IATSE LOCAL 150 (GARFIELD THEATER)
ployees and Moving Picture Machine Operators of the
United States and Canada, Los Angeles, California, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Requiring payment of $2000 as an initiation fee
from employees of employers with whom Respondent
has collective-bargaining agreements requiring member-
ship in Respondent as a condition of employment, or re-
quiring any other sum as initiation fee which is excessive
under the circumstances.
(b) Causing or attempting to cause employers with
whom it has collective-bargaining agreements requiring
membership in Respondent as a condition of employment
because of their failure to pay, as a condition precedent
to becoming a member of Respondent, a $2000 initiation
fee, or any other sum as an initiation fee which is exces-
sive in all the circumstances
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Refund to all employees of employers with whom
it has collective-bargaining agreements containing a
union-security clause, valid under Section 8(a)(3) of the
Act, that portion of all initiation fees paid to it on or
since November 25, 1982, which is excessive, with inter-
est in the manner described in The Remedy section of
this decision.
(b) Make whole David Dale Adams for any loss of
earnings suffered by him as a result of the discrimination
against him , with interest, in the manner described in
The Remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its office in Los Angeles, California, copies
of the attached notice marked "Appendix "23 Copies of
the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Mail to the Regional Director for Region 21 copies
of the attached notice marked "Appendix" for posting by
employers with whom it has collective-bargaining agree-
ments containing a union-security clause, valid under
Section 8(a)(3) of the Act, if the employers are willing to
23 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
37
do so. Copies of the notice to be provided by the Re-
gional Director, after being signed by a representative of
Respondent, shall be forthwith returned to the Regional
Director for posting.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT require payment of $2000 as an initi-
ation fee from employees of employers with whom we
have collective-bargaining agreements requiring union
membership as a condition of employment, or require
any other sum as initiation fee which is excessive under
the circumstances.
WE WILL NOT cause or attempt to cause employers
with whom we have collective-bargaining agreements re-
quiring union membership as a condition of employment
to discharge employees because of their failure to pay, as
a condition precedent to becoming a union member, a
$2000 initiation fee, or any other sum as an initiation fee
which is excessive in all the circumstances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL refund to all employees of employers with
whom we have collective-bargaining agreements contain-
ing a union-security clause, valid under Section 8(a)(3) of
the Act, that portion of all initiation fees paid to us on or
since November 25, 1982, which is excessive, with inter-
est.
WE WILL make whole David Dale Adams for any loss
of earnings suffered by him as a result of the discrimina-
tion against him, with interest.
MOVING PICTURE PROJECTIONISTS LOCAL
No. 150, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE MACHINE OPERATORS
OF THE UNITED STATES AND CANADA