Motion Picture Operators Union of Essex County

National Labor Relations Board - Board Decisions

Feb 2, 1960

126 N.L.R.B. 376 (N.L.R.B. 1960)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motion Picture Operators Union of Essex County , Local 244,
International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States of
America and Canada, AFL-CIO, and Harry Schockett, Busi-
ness Manager and Joseph Weiner and Stanley Warner Cor-
poration , Party to the Contract and International Alliance
of Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO, Party
to the Contract . Case No. 22-CB-57. February 2, 1960
DECISION AND ORDER
On September 10, 1959, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondents had engaged in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed ex-
ceptions, with a supporting brief, to the Intermediate Report with
respect to the remedy recommended by the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations with the following modifications of the remedy.'
The General Counsel excepts to the Trial Examiner's conclusion
that the question as to whether the initiation fees and dues were paid
voluntarily be determined at the compliance stage of proceedings.
We find merit in this exception. Contracts, agreements , understand-
ings, and practices which unlawfully require the payment of dues
and fees as a condition of obtaining or retaining employment are in
and of themselves sufficient to establish the element of coercion in
the payment of moneys by employees. Nassau and Suffolk Contrac-
tors ' Association, Inc., et at., 123 NLRB 1393. Since the fees and
dues here were paid pursuant to a contract or practice, we find such
payments to be involuntary?
I As no exceptions were timely filed to the Trial Examiner 's other findings, conclusions,
and recommendations , we adopt them pro forma.
' In Anchorage Businessmen's Association, etc., 124 NLRB 662, relied on by the Trial
Examiner , the contract was invalid because of the failure of the union to comply with
Section 9 ( f), (g), and ('h) of the Act. In view of the technical nature of the defect in
the contract , the Board did not invoke its normal reimbursement of dues remedy. See
Philadelphia Woodwork Company, 121 NLRB 1642.
126 NLRB No. 46.
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 377
The Trial Examiner found that the liability for reimbursement of
fees and dues is retroactive to a date 6 months before the filing of the
amended charge specifically alleging the discriminatory practice. The
General Counsel contends that the liability for reimbursement should
be retroactive to a date 6 months before the filing of the original
charge. We agree with this contention. The amended charge is
clearly encompassed within the original charge and the latter should
therefore govern the period for which liability is to be computed.
McCloskey and Company, Inc., 116 NLRB 1123, 1124-1125.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Motion Picture
Operators Union of Essex County, Local 244, International Alliance
of Theatrical Stage Employees and Moving Picture Machine Op-
erators of the United States of America and Canada, AFL-CIO, and
their officers, representatives, agents, successors, and assigns, and
Harry Schockett, its business manager, shall :
1. Cease and desist from :
(a) Maintaining or enforcing any agreement, arrangement, prac-
tice, or understanding with Stanley Warner Corporation, or with
any Stanley Warner subsidiary, requiring membership in or clearance
by Local 244 as a condition of employment as projectionist in Stanley
Warner theaters in Essex County, New Jersey, except as authorized
by Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(b) Requiring Stanley Warner Corporation, or any subsidiary
thereof, to contribute to any welfare and health fund in which union
membership is required as a condition of receiving benefits.
(c) Seeking to cause Stanley Warner Corporation, or any subsidi-
ary thereof, to discriminate against employees or applicants for em-
ployment in violation of Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(d) In any like or related manner restraining or coercing employees
or applicants for employment of Stanley Warner Corporation, or
of its subsidiaries, in the exercise of rights guaranteed in Section 7
of the Act.
2. Local 244 shall also take the following affirmative action neces-
sary to effectuate the policies of the Act : 3
(a) Reimburse employees of Stanley Warner theaters in Essex
County, New Jersey, for moneys illegally exacted from them. The
3Although we find that Business Manager Harry Schockett violated Section 8(b) (1) (A)
and Section 8(b) (2) of the Act we will not order him to make whole Joseph Weiner or
reimburse employees of the Stanley Warner theaters, because he acted as agent of the
Respondent Union and not in his individual capacity. Local 420, United Association of
Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United
States and Canada, AFL (J. J. White, Inc.), 111 NLRB 1126.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liability for reimbursement shall include the period beginning 6
months prior to the filing and service of the original charge herein
and shall extend to all moneys thereafter collected and not heretofore
refunded.
(b) Make whole Joseph Weiner, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy," for any
loss of pay incurred as a result of the discrimination against him.
(c) Similarly make whole any employee deprived of health and
welfare fund benefits as a consequence of the discriminatory conditions
of eligibility thereto.
3. The Respondents shall also :
(a) Post at the offices of Local 244 in Newark, New Jersey, and at
all other places where notices to members are customarily posted,
copies of the notice attached hereto marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
second Region, shall, after being duly signed by representatives of
the Respondents, be posted immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Mail to the Regional Director for the Twenty-second Region
signed copies of the notice marked "Appendix" for posting by Stanley
Warner Corporation or its subsidiaries in Stanley Warner theaters in
Essex County, New Jersey, in places where notices to employees are
customarily posted.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
- 4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF MOTION PICTURE OPERATORS UNION OF
EssEx 'COUNTY, LOCAL 244, INTERNATIONAL ALLIANCE OF THEATRI-
- CAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS
OF THE UNITED STATES OF AMERICA AND CANADA, AFL-CIO, AND
APPLICANTS FOR EMPLOYMENT IN STANLEY WARNER THEATERS IN
ESSEX COUNTY, NEW JERSEY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 379
WE WILL NOT maintain or enforce any agreement, arrangement,
understanding, or practice with Stanley Warner Corporation, or
any of its subsidiaries, requiring applicants for employment in
Stanley Warner theaters in Essex County to become members or
to obtain clearance or approval of Local 244 as a condition of
such employment, except to the extent that such requirements
may be lawfuly imposed under the conditions stated in Mountain
Pacific Chapter of the Associated General Contractors, 119 NLRB
883, 897.
WE WILL NOT cause or attempt to cause Stanley Warner Corpo-
ration, or any of its subsidiaries, to discriminate against employ-
ees or applicants for employment because they are not members
of or have not received clearance from our organization, in viola-
tion of Section (a) (3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
such employees or applicants for such employment in the exer-
cise of rights guaranteed in Section 7 of the National Labor Rela-
tions Act, except insofar as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL make Joseph Weiner whole for any loss of pay
incurred as a result of his suspension from membership.
WE WILL reimburse projectionists for moneys involuntarily
exacted from them by us since August 10, 1957, as a condition of
employment in Stanley Warner theaters in Essex County.
WE WILL make whole any projectionist employed in Stanley
Warner theaters in Essex County for any loss of welfare and
health fund benefits resulting from discriminatory conditions
of eligibility thereto.
MOTION PICTURE OPERATORS UNION OF EssEx
COUNTY, LOCAL 244, INTERNATIONAL ALLI-
ANCE OF THEATRICAL STAGE EMPLOYEES
AND MOVING PICTURE MACHINE OPERATORS
OF THE UNITED STATES OF AMERICA AND
'CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(HARRY SCHOCKETT)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed February 10, 1958, and an amended charge filed October 30,
1958, by Joseph Weiner, against Motion Picture Operators Union of Essex County,
Local 244, International Alliance of Theatrical Stage Employees and Moving Pic-
ture Operators of the United States of America and Canada, AFL-CIO, and its
business manager, Harry Schockett, herein referred to as the Respondents, the Gen-
eral Counsel of the Board issued a complaint and notice of hearing on December 31,
1958, alleging violations of Section 8(b)(1)(A) and 8(b)(2) of the National Labor
Relations Act (61 Stat. 136).
The complaint, in substance, alleged that (1) Stanley Warner Corporation and
Local 244 maintained in effect agreements, arrangements, understandings, or prac-
tices requiring clearance and approval by and membership in Local 244 as a condi-
tion of employment of motion picture projectionists in Stanley Warner theaters in
Essex County, New Jersey; (2) Local 244 has required Stanley Warner to con-
tribute to a health and welfare fund of Local 244, the benefits of which are re-
stricted to members of Local 244 and their relatives; and (3) about October 17,
1957, Local 244 required the discharge of Joseph Weiner, a projectionist in a Stanley
Warner theater in Essex County, because of his lack of membership in and clearance
from Local 244.
On January 7, 1959, the Respondents filed their answer, and on March 9, 1959, an
amended answer, denying the commission of unfair labor practices, denying that
their activities affect commerce, and raising certain affirmative defenses.
On March 24, 1959, Stanley Warner Corporation, herein referred to as Stanley
Warner,' filed a petition to intervene which the Regional Director granted on
March 30, 1959. On April 16, 1959, Stanley Warner filed its answer, in sum ad-
mitting the allegations of unfair labor practices and admitting its engagement in
commerce.
Upon due notice hearing was held before the duly designated Trial Examiner in
Newark, New Jersey, on various dates between June 3 and 18, 1959. The General
Counsel, the Respondents, and the Company were represented by counsel, par-
ticipated in the hearing, presented evidence, cross-examined witnesses, and engaged in
oral argument. On July 20, 1959, the Respondents filed a brief, which has been
considered.
Under date of July 13, 1959, the Respondents, the General Counsel opposing,
requested that the hearing be reopened for the admission of certain additional evi-
dence, on which rule to show cause was issued July 17. The request is hereby
denied. The submitted additional matter does not relate to any material issue in
substantial dispute. Moreover it is cumulative in nature. Evidence of similar bear-
ing or import was adduced at the hearing.
Upon the basis of the entire record in the case, consideration of all the material
evidence, the contentions of the parties, and observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF STANLEY WARNER
The case involves motion picture theaters in Essex County, New Jersey. These
theaters are part of the well-known Stanley Warner organization which operates
through a number of corporations, the principal one of which is Stanley Warner
Corporation. The subsidiary corporations which directly carry on the activities are
owned and controlled by Stanley Warner Corporation. These activities consist of
the operation and ownership of motion picture theaters, the production and projec-
tion of the motion picture presentation known as Cmerama, the manufacture of
Playtex latex products and Isodine pharmaceutical products, and the operation of
certain television facilities in upstate New York.
These activities are carried on through or with the aid of a number of subsidiary
corporations, organized variously in New York, New Jersey, Delaware, California,
and West Virginia: Stanley Warner Management Corporation; Stanley Company of
America, Inc.; Circuit Settlement Corporation; Van Curler Broadcasting Corpora-
tion; Intra-State Theatre Corporation; Stanley-Marsh-Strand Corporation; three
separate corporations each known as Warner Theatres, Inc., and incorporated re-
'The term is also used to denote the appropriate subsidiary of Stanley Warner Corpo-
ration , where involved
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 381
spectively in California, Delaware, and West Virginia; Cinerama Productions Cor-
poration ; Cinerama Inc.; and International Latex Corporation.
Stanley Warner Corporation owns or controls a majority of the capital stock of
each of those companies. The various corporations have substantially the same of-
ficers and directors.
According to its financial report for the fiscal year ended August 30, 1958, Stanley
Warner Corporation, through its theater operating and Cinerama divisions, owned
and/or operated a total of 269 theaters located in 17 States of the United States,
the District of Columbia, and Canada. In addition to direct operation of theaters
in North America, Cinerama also licenses exhibitors in foreign countries to present
that spectacle. In northern New Jersey Stanley Warner Management Corporation,
a management subsidiary, manages some 36 theaters, 6 of which are presently closed.
In Essex County, the area here involved, about 13 Stanley Warner theaters were in
operation in 1959.
During fiscal 1958, Stanley Warner Corporation reported gross income of
$113,319,000. Gross box office receipts of Stanley Warner theaters in northern New
Jersey during the same period was over $5,000,000. During approximately the same
period Stanley Warner theaters in Essex County had gross receipts of $1,700,061.
All films used in the New Jersey theaters are rented or supplied through dis-
tributors located in New York State, and the film is transported to New Jersey from
other States.
The Respondents contest the jurisdiction of the Board, contending that the ex•
hibition of motion pictures within the county of Essex is intrastate in character, anc,
further, that the supplying of projectionists by Local 244 for such purpose is a
servicing operation which does not affect interstate commerce. Established authority,
however, requires the conclusion that the activities of Stanley Warner and of the
Respondents affect commerce within the meaning of the Act.
As has been seen the motion picture exhibiting conducted by Stanley Warner in
Essex County is but a segment of a group of varied gainful activities-ranging from
film production and exhibition to manufacturing-carried on in numerous States of
the United States, in Canada and-through licensing of Cinerama exhibitors-in
foreign countries. For the purposes of considering the effect upon commerce the
activities of the entire Stanley Warner organization are to be considered. When so
viewed the interstate aspects of the enterprise are obvious.
However, even if consideration is restricted to the exhibition of motion pictures
in Essex County, that operation is also interstate in character. In the case of
Combined Century Theatres, Inc., 120 NLRB 1379, 1383, in asserting jurisdiction
over a chain of 35 neighborhood motion picture houses located on Long Island,
New York, the Board said:
A single neighborhood motion picture theater, like a single neighborhood
grocery store, may have only a slight impact upon commerce, but when the
single theater, like the single grocery store, is multiplied many times to con-
stitute a chain of theaters or of grocery stores, the impact of the business of
the chain upon commerce is no longer slight and the enterprise is no longer
essentially local.
Here the Stanley Warner organization , through its theater and Cinerama subsid-
iaries, operates a chain of 269 theaters throughout a large part of the United States
and in other areas. It is therefore found that Stanley Warner' s exhibition operations
in Essex County are of a type over which the Board will assert jurisdiction, if in
sufficient volume.
For this purpose the Board considers motion picture theaters to be retail enter-
prises. Combined Century Theaters, Inc., supra, at 1383. The Board 's present
jurisdictional standards , adopted October 2, 1958 (42 LRR 633-635), provide that
the Board will assert jurisdiction over retail enterprises whose gross volume of
business equals $500,000. (Carolina Supplies and Cement Co., 122 NLRB 88.) As
we have seen, gross receipts of the Stanley Warner theaters in Essex County in 1958
were substantially in excess of that amount ; in northern New Jersey they were 10
times the required minimum . In addition , it has been noted that all film exhibited
in the New Jersey theaters must move in interstate commerce. Finally this is an
interstate chain.
It is consequently found that the operations of Stanley Warner and of the
Respondents (who supply most of the projectionists required in Stanley Warner's
Essex County theaters ) affect commerce within the meaning of the Act. That the
Respondents may regard Local 244 as a servicing organization is not controlling.
Servicing operations are not exempt from the Act as a class.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Motion Picture Operators Union of Essex County, Local 244 , is a labor organiza-
tion affiliated with the International Alliance of Theatrical Stage Employees and
Moving Picture Operators of the United States of America and Canada , AFL-CIO.
Harry Schockett is business manager and an agent of Local 244.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Briefly the issues are the following:
1. Whether Local 244 and Stanley Warner maintained a hiring practice requiring
membership in good standing and clearance by Local 244 as a condition of securing
employment as projectionist in Stanley Warner theaters in Essex County.
2. Whether Local 244 required Stanley Warner to make contributions to Local
244's health and welfare fund, while restricting eligibility for benefits to members
in good standing of Local 244 or their relatives.
3. Whether Local 244 caused or attempted to cause Stanley Warner to suspend
Projectionist Joseph Weiner from employment in violation of the Act.
B. Background
For many years Local 244 has been the principal source of supply for motion
picture theaters in Essex County requiring the services of projectionists. In the past
Local 244 has sought to encourage this tendency by seeking agreements with em-
ployers, including Stanley Warner, providing for hiring through and assignment by
the Union of men to available jobs. In sum Local 244 has operated what is in effect
an exclusive hiring hall and referral system, generally pursuant to contracts with the
employers.
The question of assignment to jobs is a matter of importance to the projectionists.
This is so for a number of reasons . All positions as projections are not equally
desirable. They may differ in pay, hours, booth conditions, convenience, sanitary
facilities, or in other ways. Consequently positions in some theatres are more sought
after than those in others . Moreover, in recent years declining attendance has
resulted in the closing of movie houses, or the cutting of hours and wages, with
consequent reduction in employment opportunities or remuneration , and increased
competition for the remaining positions . The assignment arrangement can be of
value in meeting these problems nondiscriminatorily.
The Union's present management seeks to make assignments on the basis of
objective or equitable standards. In the case of permanent vacancies at a theater
within the Local's jurisdiction, the positions are posted by the Union and then filled
by it from among the applicants on the basis of seniority in the industry-the em-
ployer willing. Emergency or temporary vacancies, such as those arising from vaca-
tion, illness , days off etc., are filled by the Union 's business manager according to
appropriate equitable considerations-with particular emphasis on the unemploy-
ment problem. The latter nettle the Union has also sought to alleviate by requiring
employed members to share the work, thus providing more temporary assignments for
the unemployed.
This system of assignment is incorporated in the constitution and bylaws of Local
244, pursuant to decrees of the New Jersey courts. In the early 1940's racketeering
conditions in the then management of Local 244 resulted in job selling, collusive
contracts , discriminatory assignments of men, and other evils. An order of the local
chancery court in 1943, and another in 1951, provided, inter alia, for the establish-
ment of a system of posting all permanent vacancies within the Union's jurisdiction,
and the assignment of men thereto by the Union on the basis of seniority. These
provisions, the basis of Local 244's present practice, were ordered incorporated by
the court into the Union's constitution and bylaws . The Local has sought to secure
employer acceptance of the system.
In theory at least , an employer has the right to reject, for cause , an operator
assigned by the Union . In practice , disagreement as to what is cause can provoke
controversy . Beyond that , the record establishes that on occasion employers , includ-
ing Stanley Warner , have refused to accept assigned operators without stating any
reason therefor.
This, briefly, is the system of employment sought and insisted upon by Local 244,
at least at all times material herein.
With a few isolated exceptions-none in the past several years-Local 244 refers
or assigns only union members to jobs within its jurisdiction , though it has on occa-
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 383
sion referred nonunion men elsewhere. The payment of current dues and assess-
ments is required as a condition of good standing in Local 244.2
This is the background against which the issues are to be considered.
C. The contracts and the hiring practices
1. In the neighborhood theaters
Stanley Warner operates two types of motion picture theaters in Essex County;
downtown (or first run) and neighborhood. At the present time there are 11
neighborhood houses in operation and 2 downtown houses.
In 1953 Stanley Warner and Local 244 executed separate collective- bargaining
contracts for the two groups of theaters. Stanley Warner ceased to observe the
provisions of the neighborhood contract on July 16, 1958. However, it still con-
tinued at the time of hearing to follow the terms and conditions of the downtown
contract.
The contract covering the neighborhood houses was made July 1, 1953, with an
expiration date of June 30, 1955. This contract contained clauses requiring mem-
bership in good standing in Local 244 as a condition of hiring and employment, as
follows:
FIRST: Local No. 244 hereby agrees to supply and furnish to the Exhibitor,
during the term of this agreement, from among the members in good standing
of Local No. 244, all such competent motion picture machine operators and
projectionists as the Exhibitor may need and require in the operation of its
motion picture theaters in the County of Essex, State of New Jersey.
SECOND: The Exhibitor hereby covenants and agrees that, during the
term of this agreement or any extension thereof, it will not engage or employ
any motion picture machine operator or operators or projectionists other than
motion picture machine operators or projectionists who are in good standing in
Local No. 244.
Other provisions of this contract reserved to the Company the right of discharge for
cause, and also the right to make necessary rules and regulations which members
were required to obey-unless inconsistent with the contract or union rules. Opera-
tors entitled to paid vacations under the terms of the agreement were required to
take them, under penalty of forfeiture. The Company agreed to hire a substitute
operator during the vacation period. Local 244 further reserved the right to provide
relief operators and to designate the days on which they should be assigned.
Following June 30, 1955, the parties engaged in negotiations looking to renewal
of the contract, but without success. Finally, on July 16, 1958-over 3 years after
the stated expiration date-Stanley Warner wrote Local 244 a letter in which it
stated that the contract had expired, pointed out that negotiations for renewal had
not been fruitful, and concluded by saying that economic conditions were such that
the Company now had "no alternative but to operate our neighborhood theaters in
such manner that we may remain in business." Local 244 disputed the contention
that the contract had expired, and claimed that it continued in existence by virtue
of an industry custom for continuance during negotiations for renewal. However,
in June 1959, the New Jersey courts held that the contract had expired. As of what
date this termination occurred, the instant record does not disclose.
However, whether the contract continued in existence or had expired is not of
crucial importance here. For it is conceded that at least up to July 16, 1958, the
parties observed its hiring provisions. And at least up to June 1, 1959-the date
of the court decision finding that the contract had terminated-Stanley Warner
continued to obtain neighborhood projectionists from Local 244, except in two
instances referred to below. What the situation has been in that respect since June
1, 1959, is obscure .3 In line with Local 244's policy, outlined supra, and in accord-
2 Thus, article 14, section 5, of the constitution of Local 244 provides that :
Any member failing to have dues paid up to regular meeting of the current quarter
shall not be considered in good standing . Members falling one quarter in arrears
are automatically suspended and are subject to be displaced on their jobs by a
member in good standing.
_ Qnd see article 9, section 9, substantially to the same effect.
s The exceptions are the Embassy and Royal theaters, in Orange and Bloomfield, re-
spectively, where Stanley Warner reduced wages in September 1958 . The union pro-
jectionists declined to work at the new scale. Stanley Warner then hired nonunion
operators , who are presently employed . For several months Local 244 picketed those
theaters in pursuance of the dispute.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with its contention that the contract continued in effect , the Respondents con-
tinuously insisted-at least until June 1959-upon Local 244's exclusive right to
supply projectiomsts to Stanley Warner.
2. In the downtown houses
On November 1, 1953, Stanley Warner Corporation and Local 244 entered into
a contract for the downtown theaters, containing inter alia hiring provisions identical
with those in the neighborhood agreement . This contract was subsequently ex-
tended, as amended, to September 5, 1956. Though the expiration date has passed
without renewal, Stanley Warner has at all times since September 5, 1956, continued
to observe the conditions of the downtown contract, including the hiring provisions.
In this respect the situation is different from that in the neighborhood houses.
D. The welfare and health fund
The collective-bargaining contracts between Local 244 and Stanley Warner pro-
vided for contributions by Stanley Warner to a fund, known as "Local No. 244
Welfare and Health Fund," the amount of the contributions being based on wages
paid. This fund is administered by a committee of trustees composed of representa-
tives of Local 244 and of the exhibitors contributing to the fund. It presently pro-
vides life insurance, hospitalization and medical insurance , and cash indemnities to
employees of the exhibitors-Stanley Warner and others-covered by the agreements.
The benefits of the plan are restricted to members of Local 244 and their families
and dependents. Stanley Warner continues to contribute to the fund with respect
to the downtown theaters. However, it has not made payments in behalf of the
neighborhood houses since July 16, 1958.
E. The discrimination against Weiner
Joseph Weiner, a member of Local 244 for 20 years, is-and at all material times
herein was-a projectionist in Stanley Warner's Roosevelt, a neighborhood theater.
We have seen that the collective-bargaining contract required operators to take
their paid vacations under penalty of forfeiture. To fill those spots Union Business
Manager Schockett designated unemployed members where available.
According to the evidence, Stanley Warner ordinarily requires its projectionists
to take their vacations during the summer months. However, in August 1957,
Weiner secured permission from Company Zone Manager Charles Smakwitz to take
his vacation in December. After seemingly first agreeing to this arrangement, Union
Business Manager Shockett apparently took the position that the action was contrary
to the contract. Schockett then assigned a relief operator to work the theater
during the 2 weeks of August in which Weiner's vacation was scheduled. However,
Weiner, with the consent of Smakwitz, worked during that period and was given
his vacation pay. The relief operator who appeared for work was denied admit-
tance to the theater. It also seems that Weiner threatened Schockett in connection
with the matter.
Subsequently Local 244 tried Weiner on charges that he had violated the Union's
constitution and bylaws by working during a vacation period for which he was
paid , for making private arrangements with management , and for threatening
Schockett. Weiner was found guilty after hearing , and fined I day's pay, which
was given to his replacement for appearing the 1 day. This Weiner paid. Addi-
tionally Weiner was suspended from the Union for 3 weeks , from October 17 to
November 6, 1957. The Union's constitution and bylaws prohibit members from
working during a period of suspension . We have also seen that the collective-
bargaining contract required union membership in good standing in the Union as a
condition of employment. Union Business Manager Schockett informed Company
Manager Smakwitz , in writing, of the suspension , informing him also that union
rules forbade union members in good standing from working a theater with a
member not in good standing, "subject to penalties."
When informed of this, Zone Manager Smakwitz told Weiner that , as far as he
was concerned, Weiner was free to work during the period of his suspension.
Weiner did not work however. He thus lost 3 weeks and 1 day's pay during the
period of the suspension. Whether Weiner ultimately took his vacation in Decem-
ber is not clear.
F. Conclusions
1. As to the hiring practices
It is seen that the collective-bargaining contracts for the neighborhood and down-
town theaters established a referral system, the effect of which was to make Local
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 385
244 the exclusive source of operators for Stanley Warner theaters in Essex County,
and further to require that those operators be members in good standing of Local
244. These, in essence, were closed-shop conditions of employment.
That such restrictions upon hiring in an industry within the jurisdiction of the
Board are in violation of this statute is now so well-established as not to require
demonstration. An employer covered by the Act may no longer validly require
applicants for employment to be members in good standing of a union as a condition
of hiring, and a union may no longer seek to cause the employer to impose such
conditions. Radio Officers' Union of the Commercial Telegraphers Union v. N.L.R.B.
347 U.S. 17, 41.
It is further seen that those hiring practices and requirements for employment
have, over a period of years, been continuously observed and enforced by Local
244 and Stanley Warner, and are in effect today-at least in the downtown theaters.
Whether the practices were or are pursuant to an existing written contract is not
controlling. The important fact is that, as evidenced by their conduct and admis-
sions, the Employer and the Union have mutually maintained-and to the extent
noted still maintain-arrangements, practices, understandings, or agreements as to
hiring procedures, as a consequence of which hiring and employment in some
Stanley Warner theaters is restricted to members in good standing in Local 244.
This procedure is discriminatory and in contravention of Section 8(a)(3) and
8(b)(2) of the Act. Contentions of the Respondents in argument and brief im-
plying the legality of the closed shop under this Act are not consistent with the law.
The Respondent raised a number of defenses. Apart from contentions disposed
of elsewhere, or so insubstantial as not to require discussion, these are substantially
the following.
The first is that the Board may not-or ought not-act here for the reason that
it would be inequitable to do so. This contention is bottomed upon the fact that
the Board has not always exerted jurisdiction over motion picture theaters, that
the instant closed-shop contracts, lawful under New Jersey law, were entered into
before the Board announced the exercise of jurisdiction over the industry. This
defense is not sustained.
The failure of an administrative agency to exert its full authority over a matter,
person, or controversy at a particular time does not debar the agency from doing
so thereafter. A declination to proceed with an action is not a license to engage in
unlawful conduct, or a contract forever debarring prosecution. The doctrine of
equitable estoppel, even if applicable on the facts-which it is not-is inapplicable
to public rights. N.L.R.B. v. Baltimore Transit Company, et al., 140 F. 2d 51,
54-55, cert. denied 321 U.S. 795. In any event the facts provide no basis for a
claim of estoppel.
For Local 244 was provided opportunity to reform and remedy its practices
respecting Stanley Warner without formal action, but did not do so. On April 22,
1958, several months after the filing of the original charge, Local 244 was advised
in writing by the General Counsel that its hiring arrangements at Stanley Warner
were asserted to be unlawful, and that unless Local 244 initiated steps to correct the
situation by September 1, the General Counsel would be required to seek appro-
priate remedy. Local 244 took no such action. That certain contracts made be-
tween Local 244 and other exhibitors in 1959 contain no hiring clauses at all has
no bearing on the situation at Stanley Warner. Under the circumstances Local 244
has no equitable claim to exemption from accountability for unlawful practices.
Local 244 asserts that since the seniority principle in assignment was promulgated
pursuant to decree of the New Jersey courts it must be recognized here as defensible
and valid. It is further argued that the assignment procedures are necessary to
prevent a return to the unsavory conditions of the past.
Racketeering and corruption in hiring arrangements are a matter of public concern.
Manifestly, the Board has no wish to contribute to their initiation, continuation, or
revival. Effort on the part of the leadership of the local to prevent such conditions
are of course to be encouraged. But there is nothing in the Labor Act, as I under-
stand it, or anything which the Respondents are being asked by the General Counsel
to do, which will restrain such effort. Local 244 will be free, as always, to maintain
a hiring hall-Stanley Warner willing-so long as the arrangements conform to
the requirements laid down by the Board in the case of Mountain Pacific Chapter,
et al., 119 NLRB 883, 897.4 Local 244 will not be repressed by conformance with
'Namely: (1) That referrals be on a nondiscriminatory basis, unrelated to union
membership or other union considerations ; (2) that the Employer retain a right to
554461-60-vol. 126-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the law. Its legitimate aspirations can be fully met within the bounds of the
Mountain Pacific principles.
That the seniority provisions of Local 244's constitution and bylaws are the result
of court decree is not a defense. Judgments of the local courts on a matter within
Federal jurisdiction could not validate a practice contrary to Federal law. But
there is no reason to suppose that they were intended to. The State court decrees
are to be interpreted as not applicable to situations involving the National Labor
Relations Act. In any event, seniority is a valid principle for assignment. The basic
vice here is the closed-shop conditions.
On the basis of the foregoing findings it is concluded that the Respondents have
maintained agreements, arrangements, understandings, or practices requiring mem-
bership in good standing in Local 244 as a condition of hiring as projectionist in
Stanley Warner theaters in Essex County. It is further concluded that such action
constituted a violation of Section 8(b)(2) and 8(b)(1)(A) of the Act.
2. Conclusions as to the welfare fund
We have seen that the union welfare and health fund to which-pursuant to agree-
ment-Stanley Warner contributes, conditions eligibility for benefits upon member-
ship in Local 244. The Respondents contend, in sum, that the provisions of the
trust agreement are the result of insistence by Stanley Warner upon the use of its
own form; that Stanley Warner has been invited to nominate trustees, but has not
done so; and, finally, that the agreement is valid under the terms of Section 302 of
the Act, citing Arroyo v. U.S., 359 U.S. 419. So far as pertinent here, Section 302
authorizes payments by employers into funds for the payment of welfare benefits
to employees and their dependents.
A contractual provision conditioning eligibility for benefits from an employer-
financed welfare fund upon membership in a labor organization is violative of
Section 8 of the Act, in much the same way as is a restriction of employment to
union members. That part or all of the provisions may have been suggested or
insisted upon by the Company does not absolve the Union for its joinder in the
discriminatory action. That Stanley Warner may not have chosen to nominate one
of its representatives as a trustee of the fund, if true, is of no materiality. And that
the agreement may not violate Section 302 is beside the point. The question here
is whether the restriction of benefits under the plan to union members is violative
of Section 8. 1 find that it is. The maintenance of a contract so providing consti-
tutes a form of requirement or compulsion.
It is found that by maintaining the contract requiring employer contributions
to a discriminatory health and welfare fund the Respondents violated Section
8(b)(2) and 8(b)(1)(A) of the Act.
3. Conclusions as to Weiner
Local 244 could lawfully impose reasonable intraunion discipline on Weiner for
violation of the union constitution and bylaws; it could not, however, seek to pro-
cure his suspension from employment in such connection. Since it sought to do so,
Local 244's action in the connection was also violative of Section 8(b),(2) and
8(b)(1)(A) oftheAct.
If the conduct of Weiner and Stanley Warner had been in violation of the col-
lective-bargaining contract, perhaps a different result would be required, but this
question it is unnecessary to decide. Abe Meltzer, Inc., 108 NLRB 1506. For
while the contract stipulated that operators must take their vacations, it did not
provide that they must be taken at any particular time. There is no discernible
contractual basis for the Union's insistence that Weiner take his vacation in August
rather than in December.
Local 244 contends that its action in this instance is not violative of the Act
because it only suspended Weiner-it did not terminate his membership. This is
beside the point. The violation consists of attempting to secure discrimination
in Weiner's employment without valid justification therefor.
It is found that by seeking to procure Weiner's suspension from employment for
the reasons stated, Local 244 attempted to cause Stanley Warner to discriminate
against him in violation of Section 8(a)(3) of the Act, thereby violating Section
reject anyone referred ; and (3) that the hiring provisions be posted in appropriate
places. It has been noted that under existing practice Stanley Warner has the right to
refuse to accept an operator for cause.
MOTION PICTURE OPERATORS UNION OF ESSEX COUNTY 387
8(b)(2) and restraining and coercing him in violation of Section 8(b)(1)(A).
Since Zone Manager Smakwitz informed Weiner that he could work despite the
suspension, it is not found that Local 244 caused Stanley Warner to discriminate
against Weiner. Nevertheless, Local 244's action resulted in Weiner's refraining
from working during the period of the suspension. It therefore caused his loss of
employment. Weiner is entitled to recover the wages of which he was deprived
by reason of the illegal action. This is provided for in The Remedy section, infra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring
in connection with the operations of Stanley Warner described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices affect-
ing commerce, it will be recommended that the Respondents cease and desist there-
from and take certain affirmative and remedial action designed to effectuate the
policies of the Act.
It will be recommended that Local 244 make whole projectionists employed by
Stanley Warner in Essex County, if any, who have lost benefits by reason of the
discriminatory conditions of eligibility for welfare and health benefits. Northeast
Coastal, Inc., 124 NLRB 441.
It will be further recommended that Local 244 make Joseph Weiner whole for
any loss of pay suffered by him as a result of the loss of employment consequent
upon his suspension from union membership.
It is not clear from the record how much Weiner is entitled to recover. It has
been seen that the collective-bargaining contract required employees to take their
vacations or forfeit them. Weiner was given his vacation pay in August, but
worked that period-with the understanding that he would take his vacation (2
weeks) in December. Whether Weiner actually took the December vacation is
not clear from the record. If he did so he is entitled to recover wages for the
entire period of his suspension-3 weeks and 1 day. If he did not, he is entitled
to recover only 1 week and 1 day's wages. Otherwise he will have worked his
vacation period in violation of the contract. Since the record affords no basis
for determination as to the fact of the matter, it is left to compliance.
It will also be recommended that Local 244 make appropriate reimbursement
of union dues, initiation fees, and other payments to it required in connection with
employment by Stanley Warner.
It has been seen that both the contracts with Stanley Warner and Local 244s
constitution required membership in good standing as a condition of hiring. Where
such a condition exists the Board generally requires the union to reimburse employee
dues and fees, for the reason that such payments are usually to be ascribed to the
coercion of the hiring requirement. J. S. Brown-E. F. Olds Plumbing & Heating
Corporation, 115 NLRB 594; Broderick Wood Products Company, 118 NLRB 38;
Maritime Ship Cleaning and Maintenance Co., 122 NLRB 967; Nassau and Suffolk
Contractors' Association, Inc., 123 NLRB 1393. Cf. Anchorage Businessmen's
Association, etc., 124 NLRB 662 (reimbursement not ordered where the evi-
dence indicated that the payments were voluntary and not under the compulsion
of the contract). These authorities require an order for reimbursement here.
Whether any of the payments were voluntary within the meaning of the Anchorage
case can be raised at the compliance stage of proceedings.
It will therefore be recommended that Local 244 reimburse employees for pay-
ments to the Local required for employment in Stanley Warner theaters for a
period beginning 6 months prior to October 30, 1958, the date of the filing of the
charge alleging the invalid hiring practices .5
5 An order for monetary reimbursement may be retroactive to a date 6 months before
the filing of the charge alleging the unfair labor practices upon which the order is based.
A charge was also filed here on February 10, 1958. However, that charge only alleged
discrimination with respect to Weiner, and did not assert the existence of unlawful
hiring arrangements or practices.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Motion Picture Operators Union of Essex County, Local 244, International'
Alliance of Theatrical Stage Employees and Moving Picture Operators of the United
States of America and Canada, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Stanley Warner Corporation is engaged in commerce within the meaning of
Section 2(5) of the Act.
3. By attempting to cause Stanley Warner Corporation to discriminate against
Joseph Weiner in violation of Section 8(a)(3) of the Act, the Respondents have
engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act.
4. By maintaining and enforcing agreements, arrangements, practices, or under-
standings with Stanley Warner Corporation requiring membership in good standing
in, or clearance by, Local 244 as a condition of hiring projectionists in Stanley War-
ner theaters in Essex County, New Jersey, the Respondents have engaged in unfair
labor practices within the meaning of Section 8(b) (2) of the Act.
5. By requiring Stanley Warner Corporation to contribute to Local 244's welfare
and health fund for the sole benefit of members in good standing of Local 244 and
their dependents, the Respondents have engaged in unfair labor practices within
the meaning of Section 8(b) (2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act the Respondents have engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Richard, Robin and Colin Williams , Copartners d/b/a Williams
Brothers Asphalt Paving Company and Local 324, Interna-
tional Union of Operating Engineers , AFL-CIO
Richard , Robin and Colin Williams, Copartners d/b/a Williams
Brothers Asphalt Paving Company and Dale G. Tracy
Richard, Robin and Colin Williams , Copartners d/b/a Williams
Brothers Asphalt Paving Company and Jack Blew. Cases
Nos. 7-CA-2083, 7-CA-?084, and 7-CA-f086. February 2, 1960
DECISION AND ORDER
On July 10, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, a supporting brief, and several
motions to reopen the record.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
1126 NLRB No. 49.