International Alliance of Theatrical Stage Employees

National Labor Relations Board - Board Decisions

Dec 13, 1957

119 N.L.R.B. 810 (N.L.R.B. 1957)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Computation of Back - Pay due Joseph S. Aguiar
Period Net Back
Pay
June 25 to 29, 1954-------------------- Gross back pay--------------- ____________ $25.29 ----___---
Interim earnings-------------- ------------ ------------ ----------
Net back pay----------- ------------ ------------ $25 29
Quarter ending Sept . 28,1954__ _______ Gross back pay_______________ ____________ 1,302 . 13 ----------
Interim earnings-------------- $910 70 ------------
Less . Expenses---------------- 18 90 ------------ ----------
Not interim earnings ---- ------------ 591.80 _
410 33
Quarter ending Dec. 31 , 1954_ ________ Gross back pay_______________ ____________ 1 , 428.12 _
Interim earnings -------------- 946 30 ____________ ----------
Less. Expenses---------------- 21.52 ____________ ----------
Net interim earnings---- ------------ 924.78 _
34503
Jan. 1-Feb. 1 , 1955 ------------------- Gross back pay--------------- ------------ 481 04
.
_
Interim earnings -------------- 441.60 _______ _____ ----------
Less- Expenses--------------- 13 20 ____________ ----------
Net interim earnings__ __ ____________ 428.40 ----------
b2 64.
May 28-June 28,1955 _________________ Gross back pay--------------- ------------ 387 72 _
Interim earnings- ------------- 285.60 ------------
Less: Expenses________________ 10.56 - -----------
Net interim ea rnings____ ____________ 275.04 _
68112.
Quarter ending Sept . 27,1955--------- Gross back pay--------------- ------------ 1,341.35 _
earnings-------------- 724 20 _
Less : Expenses---------------- 23 76 ------------
Net interim earnings---- ------------ 700.44 _
640.91
Quarter ending Dec. 31,1955 _________ Gross back pay_______________ ____________ 1,442. 04 ----------
Interim earnings______________ 1,478 84 ------------ ----------
Less . Expenses---------------- 34.32 _
Net interim earnings ____ ____________ 1,445 52 __________
Jan.I to 26,1956_____________________ Gross back pay____ ___________ ____________ 335.52 _
Interim earnings-- ------------ 446 40
_
_---------- ----------
Less: Expenses ---------------- 10.56 _
Net interimearnings ____ ____________
Total back pay due_____ ____________ 1,745.19
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and Can-
ada, Local No. 409, AFL-CIO [Columbia Broadcasting System,
Inc.] and Amos R. Kanaga. Case No. 20-CB-48. 6. December 13,
.7957
DECISION AND ORDER
On April 4, 1957, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
119 NLRB No. 117
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 811
Respondent had not engaged in unfair labor practices within the
meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, as
alleged in the complaint, and recommending that the complaint be
dismissed, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the complaint herein against the Re-
spondent , International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada,
Local No. 409 , AFL-CIO, be, and it hereby is , dismissed in its
entirety.
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
I Like the Trial Examiner , we are unable to find on the evidence that an exclusive hiring-
hall agreement or arrangement , express or tacit, existed between CBS and Respondent
Union. Consequently , it is unnecessary that we pass upon the question of whether such
an agreement or arrangement is legal under the Act. We therefore do not adopt the dictum
in the Intermediate Report which implies that an exclusive hiring-hall agreement is
illegal.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On October 11, 1956, Amos R. Kanaga, an individual , filed with the National
Labor Relations Board, herein called the Board, a charge against International
Alliance of Theatrical Stage Employees and Moving Picture Machine Operators
of the United States and Canada, Local No. 409, AFL-CIO, herein called the Union,
charging the Union with unfair labor practices within the meaning of Section 8 (b)
(1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act . Upon this charge, the Acting Regional Director for the
Twentieth Region, on behalf of the General Counsel of the Board , on December 27,
1956, issued a complaint alleging, in substance , that the Union , having an exclusive
authorization to supply CBS with stagehands to be used in preparing television
performances , on about August 8, 1956, refused to clear, dispatch , refer, or assign
Kanaga to work as a stagehand for CBS although jobs were then available because
said Kanaga had failed and refused to pay certain fines and costs which had pre-
viously been assessed against him by the Union and did thereby cause CBS to refuse
to employ said Kanaga. On January 8, 1957, the Respondent filed an answer
admitting that CBS had granted exclusive authorization to the Union to supply it
with stagehands to be used in preparing television performances as alleged in the
complaint , but denying that the Union refused to clear, dispatch , refer, or assign
Kanaga to work as a stagehand , although such jobs were then available, because
Kanaga had refused to pay certain fines and costs which had previously been
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assessed against him by the Union, and denying that the Union did thereby cause
CBS to refuse to employ said Kanaga.
Pursuant to notice a hearing was held at San Francisco, California, on January 28,
1957, before me as the duly designated Trial Examiner. At the close of the General
Counsel's case, the General Counsel moved to amend the complaint with respect
to matters of names and dates to conform to the evidence. The motion was granted.
At the close of the hearing, General Counsel argued orally on the record. The
Respondent chose not to argue orally, but requested time to file a brief. Such time
was given and a brief was received from the Respondent and has been considered.
On March 19, 1957, the hearing was ordered reopened to permit the parties to offer
further evidence either by way of stipulation or testimony of witnesses and on
March 29, 1957, such stipulation was filed and the hearing was closed. By the
same stipulation the Respondent amended its answer to deny that it had been
granted exclusive authority to supply stagehands for CBS as alleged in the complaint.
From my observation of the witnesses, and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE FACTS OF COMMERCE
The complaint alleged and the answer admitted that CBS Television, a division
of CBS Broadcasting System, Inc., herein called CBS, is a Delaware corporation
and maintains its principal office and place of business in New York City, New
York; that CBS owns and operates radio and television transmission facilities in
New York City and in various other cities of the United States; and that the annual
gross revenue of CBS exceeds $10,000,000. The issue here involved concerns an
attempt by an employee to get employment with CBS during the Republican
National Convention in San Francisco in August 1956, and I take official notice
of the fact that the broadcast of that convention was on a national hookup. No
issue is raised with respect to jurisdiction of the Board.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization representing employees known as projectionists
and stagehands in dealing with employers concerning terms and conditions of em-
ployment. It is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Fadtual events
On May 16, 1956, the Union assessed a fine and costs against its member, Amos
Kanaga, which Kanaga refused to pay. He appealed the fine to the international
organization, but his appeal was ultimately denied. On July 31, 1956, although his
dues had been paid to the end of the year 1956, Kanaga was suspended from the
Union for nonpayment of the aforesaid fine and costs.
On July 17, 1956, following an oral agreement made in June between John
Turturisi, the business agent for the Union, and Albert Raymond, assistant manager
of television production for CBS Television, the latter wrote to Turturisi confirming
the previous oral agreement authorizing the Union to supply CBS Television with 10
stagehands for setup at the Cow Palace (in preparation for the Republican National
Convention) beginning on August 6, 1956. According to the agreement between
Turturisi and Raymond, CBS would revert to 2 crews of 3 men each after the setup
was completed for the balance of the period of the convention. It was expected
that the setup would take about 10 days, and that there would be about 4 days of
convention broadcasting. Before the conclusion of the convention, however, CBS
authorized the Union to supply eight additional stagehands, and the Union supplied
all hands authorized by CBS. The 18 stagehands so supplied by the Union were
the only stagehands employed by CBS at the convention. The actual hiring of the
men referred by the Union was done by Raymond, who supervised and paid the
stagehands. Raymond did not seek to, and did not, hire any employees in the
classification of stagehands except those referred by the Union. The Union had
never had any prior dealings or understandings with CBS.
In the latter part of July 1956, Kanaga spoke to Barclay Smith, the assistant busi-
ness agent of the Union, whose job it was to place stagehands, and asked for em-
ployment on the CBS job. At that time Smith did not give Kanaga a definite
answer. Again about August 6, 1956, Kanaga spoke to Smith about being placed on
the CBS job at the Cow Palace, and Smith replied that he was sorry, that he could
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES 813
not put Kanaga to work because , according to a ruling of the executive board of the
Union , he was not obligated to put him to work unless he paid his fine.'
One of the provisions of the Union's constitution and bylaws is that after a mem-
ber is suspended for failure to pay dues or fines "he shall be replaced on his job by
the business manager without further notice." The Union's bylaws also provided a
fine of $100 for members who procured their own employment without consent of
the Respondent or its business manager. It was stipulated that this provision applied
to suspended members as well as to members in good standing . Among stagehands
referred to the CBS convention job by Smith were nonmembers of the Union, who
were issued permits by the Union after it ran short of enough of its own members
and members of sister locals to assign to the job.
B. Arguments and conclusions
It is the General Counsel's position that the Union caused CBS to deny Kanaga
employment by virtue of the fact that hiring by CBS was done exclusively through
the Union, pursuant to an agreement which should be inferred to be an exclusive
hiring-hall contract. The Union contends that there is nothing to show that re-
ferral by the Union was a prerequisite to employment of Kanaga or other personnel
by CBS, and that there was no evidence of any agreement or understanding between
CBS and the Union whereby the Union was to be the sole source of supply of labor.
(1) Conclusions respecting violation of Section 8 (b) (2) of the Act
Aside from cases in which a union engages in discriminatory practices under a
lawful union-security contract, which is not present here , violation of Section 8 (.b)
(2) of the Act is usually evidenced by the effect given to an unlawful voluntary ex-
clusive hiring-hall agreement, express or tacit , or by discrimination by an employer
against an employee or applicant for employment where the employer 's act is
coerced by a union through threats of economic reprisals . If a violation of Section
8 (b) (2) is to be found here, it must be on evidence of an exclusive hiring-hall
agreement or arrangement tacitly agreed to by union and employer, since there is no
evidence that the Union otherwise took any step to influence CBS not to hire Kanaga.
The essential factor to a finding of a violation of Section 8 (b) (2) of the Act in such
a case is the employer's agreement to employ only members of the particular union
or only those who have been given prior approval by that union .2 In such cases the
employer accepts , as final, the union 's determination as to who shall be permitted
to work for him.
Because Kanaga made no effort to procure employment at the Cow Palace except
through the Union, it is impossible to determine whether or not, if he had applied
direct to CBS, CBS would have refused to hire him without clearance by the Union,
unless it can be inferred that CBS had bound itself by agreement to employ only
men referred by the Union. The agreement between CBS and the Union does not
on its face give the Union an exclusive hiring-hall contract . It does not on its face
require that only men referred by the Union be employed. Agreements for hiring
only men referred or cleared by a union have sometimes been inferred (in the
absence of proof of an express agreement ) from all the circumstances of the case,
including the hiring practices of the employer and union.3 It must be decided here,
then, whether or not the evidence suffices to establish the existence of any under-
standing that only members of the Union or those referred by the Union would be
hired although the expressed agreement does not so provide. Evidence of the
Union's practices in this case is sufficient to show that it was accustomed to refer-
ring its own members first ; then if it could not supply enough members, it would refer
x Kanaga testified that Smith said that he had "orders" from the executive board that
he could not be put to work unless he paid his fine . Again , he quoted Smith as saying
that "that was his orders and I couldn't go to work until I .paid the fine." Smith gave
appearance of being a mild-mannered man. He did not appear to be one to speak in a
dictatorial manner as the phrase quoted from Kanaga's testimony might suggest. Smith's
testimony appeared to be completely candid. I base the finding in the body of the text
above on Smith's testimony as more accurate.
2N. L. R. B. V. Construction Specialties Co., 208 F. 2d 170 (C. A. 10) ; N. L. R. B. v.
International Longshoremen 's and Warehousemen's Union, et al. (Pacific Maritime Assn.),
210 F. 2d 581 (C. A. 9) ; Consolidated Western Steel Corporation, 108 NLRB 1041 ; Phila-
delphia Iron Works, Inc., 103 NLRB 596; American Pipe and Steel Corporation, 93 NLRB
54; New York State Employers Association, Inc., 93 NLRB 127.
3 Seabright Construction Company, 108 NLRB 8; General Electric Company, 94 NLRB
1260.
814 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available members of affiliated locals; and only if it could not procure a sufficient
number of either one would it refer nonmembers or "permit" men. The Union's by-
laws disclose a purpose to exercise a control over members' employment by restrain-
ing them from making application for jobs except through the Union, and the bylaws
provide that a suspended member "shall be replaced on his job by the business
manager" of the Union. No evidence was offered, however, to show that CBS by
express agreement or tacit understanding assented to the Union's assertion of the
right to remove any CBS employees from their jobs, and no agreement to such effect
can be inferred from the evidence presented. It does not even appear that CBS had
knowledge of this provision of the Union's bylaws. No one but the Union actually
referred employees to CBS on the job mentioned and CBS actually did not, on the
convention job, hire or attempt to hire stagehands independently. But although it is
a fact that CBS used men supplied by the Union, there is no evidence that it was ap-
prised of the Union's practices or assented to a discriminatory hiring arrangement.
No intent can be inferred from past practices since this is the only time CBS had had
any dealings with the Union. It is conceivable that CBS had dealings with local
unions, affiliated with the same parent organization, whose practices are the same as
those of the Union and assumed that the Union would give preference to its own
members and discriminate against others; and it is possible that CBS intended its
contract with the Union to operate that way. People in repeated contact with craft
labor organizations perhaps tend to expect such practices. But a finding here that
CBS expected its contract to be an exclusive hiring-hall arrangement, with preference
given to members of the Union in good standing, would be based on assumption and
not on inference drawn from evidence. Furthermore, there is no evidence from
which it can be inferred that CBS relinquished its right to hire employees independ-
ently of the Union. The making of a discriminatory hiring agreement, by itself, has
been held to violate Section 8 (a) (1) and (3) as well as Section 8 (b) (1). (A) and
(2). But I could not, on the evidence contained in the record here, find that CBS
had violated the Act by its authorization to the Union to supply a given number of
men; so I cannot conclude that a mutual understanding existed. Since no agreement
can exist unless both parties thereto assent , and since I am unable to find that CBS
assented to hire only members of the Union or men referred by it, I find that the evi-
dence fails to disclose that an agreement to that effect was made.
It may be true that, independently of any agreement, the Union itself discrimi-
nated against Kanaga in refusing to assign him to the CBS job, but such conduct
does not, by itself, constitute a violation of Section 8 (b) (2) of the Act.4 Absent
evidence of an illegal hiring-hall arrangement between the Union and CBS or other
evidence that the Union caused or attempted to cause CBS to discriminate against
Kanaga, no violation by the Union of Section 8 (b) (2) of the Act is shown .5
(2) Conclusions respecting violation of Section 8 (b) (1) (A) of the Act
The complaint does not allege a violation of Section 8 (b) (1) (A) by any acts or
conduct other than those alleged to be a violation of Section 8 (b) (2) of the Act.
Thus, the alleged violation of Section 8 (b) (1) (A) is derivative from that conduct
alleged to be a violation of Section 8 (b) (2) of the Act. As I have found that
the Union did not violate Section 8 (b) (2) of the Act, no violation of Section 8
(b) (1) (A) derives therefrom. The complaint does not allege that the Union's
refusal to refer Kanaga to the CBS job was, apart from the alleged exclusive hiring
contract, a violation of Section 8 (b) (1) (A). But if the complaint might be
interpreted so to allege, I should not be disposed to find a violation of the Act merely
from the Union's refusal to refer Kanaga to the CBS job. The Union was under
no legal obligation to find Kanaga a job. Unless it is shown that the Union has
an exclusive hiring-hall contract, the law does not impose on the Union an obliga-
tion to make references to employers or give clearances on a nondiscriminatory
basis.6
4 Pacific American Ship Owners Association, 98 NLRB 582, 587-8.
6 N. L. R. B. v. Thomas Rigging Co ., 211 F. 2d 153 ( C. A. 9) ; Local 595, International
Association of Bridge, Structural and Ornamental Iron Workers , A. F. L. (Bechtel
Corporation ), 108 NLRB 1070 ; Local No. 63 , United Brotherhood of Carpenters and Joiners
of America , A. F. L. (J. L. Wroan & Son), 106 NLRB 231 ; County Electric Co., Inc., 116
NLRB 1080 ( case of Buell Winslow ) ; Motor Truck Association of Southern California,
110 NLRB 2151.
ON. L. R. B. v. Thomas Rigging Co ., 211 F. 2d 153 ( C. A. 9) ; Local 595, International
Association of Bridge , Structural, and Ornamental Iron Workers , AFL (Bechtel Corpora-
tion) , 108 NLRB 1070; Local No. 63, United Brotherhood of Carpenters and Joiners of
America, AFL ( J. L. Wroan & Son ), 106 NLRB 231.
BROWN & ROOT CARIBE, INC. 815
The Union's bylaws no doubt impose a measure of restraint on its members, as
such, but they do not restrain or coerce employees in the right to refrain from union
membership or activity. The proviso to Section 8 (b) (1) (A) permits the Union
to prescribe rules with respect to acquisition or retention of membership. If the
Union's rules affect membership of those who choose to procure their own jobs
rather than get them through the Union or as permitted by the Union, the Union's
rules are protected under the aforesaid proviso so long as the Union does not cause
or attempt to cause an employer to discriminate against such member except as
authorized in Section 8 (a) (3) of the Act. Because it has been found that the
Union did not cause or attempt to cause CBS to discriminate against Kanaga, I find
that the Union did not restrain or coerce him or other employees in the exercise
of rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. CBS is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
3. The Union did not cause or attempt to cause CBS to discriminate against
Kanaga in violation of Section 8 (a) (3) of the Act and, hence, did not violate
Section 8 (b) (2) of the Act.
4. The Union did not restrain or coerce Kanaga or other employees in the
exercise of the rights guaranteed in Section 7 of the Act by refusing to clear,
dispatch, refer, or assign Kanaga to work as a stagehand for CBS in violation of
Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
Brown & Root Caribe , Inc. and Sindicato de Empleados de
Equipo Pesado , Construccion y Ramas Anexas de P. R., Sindi-
cato de Trabajadores (Packinghouse ) de P. R., UPWA-AFL-
CIO, Petitioner. Case No. 24-RC-1039. December 13,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Frank H. Parlier,
hearing officer.' The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer contests the Board's jurisdiction. The Employer
was incorporated in 1957 to engage in the construction business in
Puerto Rico. It is presently engaged in building a chemical plant
for Union Carbide Caribe, Inc. The Employer is a subsidiary of
Brown & Root, Inc., herein called Brown, a Texas corporation, which
also does construction work and is admittedly engaged in commerce.
According to a letter submitted by the Employer after the hearing
and incorporated into the record by agreement as an exhibit, the
Employer's manager is in charge of all aspects of the operation, in-
cluding the hire and discharge of employees, wages, vacations and
1 The Petitioner 's name appears herein as amended at the hearing.
119 NLRB No. 110.