Musicians Union Local 47

National Labor Relations Board - Board Decisions

Mar 27, 1981

255 N.L.R.B. 386 (N.L.R.B. 1981)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Musicians Union Local 47, American Federation of
Musicians, AFL-CIO (American Broadcasting
Company, A Division of American Broadcasting
Companies, et al.) and Camillo Fidelibus. Case
31-CB-3365
March 27, 1981
DECISION AND ORDER
On January 5, 1981, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Musicians
Union Local 47, American Federation of Musi-
cians, AFL-CIO, Los Angeles, California, its offi-
cers, agents, and representatives, shall take the
action set forth in said recommended Order.
I We agree with the Administrative Law Judge that the issue of defer-
ral to arbitration is not presented or applicable in this case.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by Administrative Law Judge
James T. Rasbury in Los Angeles, California, on March
4 and 5, 1980. On October 17, 1979, the Regional Direc-
tor for Region 31 of the National Labor Relations Board
issued a complaint and notice of hearing, based on an
unfair labor practice charge filed on July 27, 1979,
amended on August 17 and October 15, 1979, alleging
violations of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended, 29 U.S.C. § 151, et
seq., herein called the Act. Thereafter, Administrative
Law Judge Rasbury passed away. The parties agreed to
waive a hearing de novo, consenting to the transfer of the
case to another Administrative Law Judge for prepara-
tion and issuance of decision based on the hearing record
made before Administrative Law Judge Rasbury. By
order dated August 20, 1980, I was designated to prepare
and issue a decision on the record as made.
Upon the entire record, together with consideration of
the briefs, I make the following:
255 NLRB No. 65
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is undisputed that at all times material, American
Broadcasting Companies, Inc., herein called ABC, has
been a New York corporation engaged in "the business
of radio and television broadcasting, the business of cre-
ating, maintaining, and operating radio and television sta-
tions, networks, systems, chains, transmission facilities,
reception facilities and other businesses and activities re-
lated thereto." During the 12-month period prior to com-
mencement of the hearing in this matter, ABC derived
gross revenues in excess of $500,000. During that same
period, ABC, through its division, American Broadcast-
ing Company,' received services valued in excess of
$50,000 from A.C. Nielsen Company, in Chicago, Illi-
nois. Inasmuch as this 12-month period embraces the
time period during which the unfair labor practices are
alleged, in the complaint, to have been committed, Furu-
sato Hawaii, Ltd., 192 NLRB 105 (1971), as well as the
date on which the charge in this matter was filed, Poor
Richard's Pub-a California Corporation, 217 NLRB 102
(1975), and in view of the fact that there is no assertion
that ABC's operations during other periods differed sub-
stantially from those occurring during the 12-month
period prior to commencement of the hearing in this
matter, I find that the operations of ABC during the 12-
month period prior to commencement of the hearing in
this matter are of a sufficient magnitude for the Board to
assert jurisdiction. Raritan Valley Broadcasting Company,
Inc., 122 NLRB 90 (1958). Therefore, I find that at all
times material ABC has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. 2
11. THE LABOR ORGANIZATION INVOLVED
At all times material Musicians Union Local 47,
American Federation of Musicians, AFL-CIO, herein
called Respondent, has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Findings
The following findings of fact are either undisputed or
were admitted by Respondent's treasurer, Robert Man-
ners:
I There is no contention that American Broadcasting Company, a divi-
sion of ABC, is an entity or employer separate and distinct from ABC,
nor has there been any showing that it operates independently of ABC.
Cf. Los Angeles Newspaper Guild, Local 69. et al. (Los Angeles Herald-Ex-
aminer Division of the Hearst Corporation), 185 NLRB 303 (1970). affd. per
curium 443 F.2d 1173 (9th Cir. 1971).
2 In addition to ABC, the General Counsel also alleges that MCA Re-
cords, Inc.. National Broadcasting Company, Inc., and Ray Ellis Enter-
prises. Inc., satisfied the Board's discretionary standards for asserting ju-
risdiction and were employers within the meaning of Sec. 2(2). (6), and
(7) of the Act. However, no evidence was introduced during the hearing
to support these allegations. Nevertheless, in view of my findings infra, it
is not material that the General Counsel failed to produce evidence in
support of these allegations.
MUSICIANS UNION LOCAL 47 387
1. By virtue of the terms of various collective-bargain-
ing agreements, checks for services performed by mem-
bers of Respondent, for employers in the broadcast and
entertainment industry, are transmitted to Respondent
for delivery to the employees who performed those serv-
ices. 3
2. Members of Respondent are obliged to pay dues
computed, in essence, on the basis of percentages of con-
tractual pay scales for the types of work that they per-
form.
3. Although Respondent has a longstanding policy of
prohibiting persons other than relatives from picking up
members' paychecks sent to it by employers, in practice
members have been permitted to designate, by written
authorization, nonrelatives as agents for receipt of these
checks from Respondent.
During 1979 Camillo Fidelibus had been a music copy-
ist4 and a member of Respondent. By June 1979, Fideli-
bus was in arrears in the dues which he owed to Re-
spondent.
5. In July 1978, Fidelibus executed a written authoriza-
tion designating Josephine Ann Johnson "to receive any
checks payable to me and to pay Work Dues thereon."
Johnson testified, without contradiction, that he had
picked up Fidelibus' checks from Respondent on three or
four occasions during 1979, prior to the month of June.
In addition, documentary evidence was produced at the
hearing, though not introduced, showing that Johnson
had picked up a check for Fidelibus from Respondent in
March 1979.
6. On June 6, 1979, American Broadcasting Company,
a division of ABC, issued a check, in the amount of
$135.36 to Fidelibus. This check was transmitted to Re-
spondent.
7. On June 14, 1979, Johnson came to the work dues
department in Respondent's Hollywood office and spoke
to one of the clerks.5 When Johnson asked for her own
checks and for any that were there for Fidelibus, the
clerk brought two checks for Johnson and one from
American Broadcasting Company, Division of ABC, for
Fidelibus. However, after examining the dues records of
Johnson and Fidelibus, the clerk told Johnson, that she
"was not allowed to release my checks to me or his
checks to me until the back dues. . . were paid." When
Johnson protested, asking the clerk to check with a su-
pervisor about withholding the checks, the clerk went to
one of the back desks which, according to Johnson, had
"in the past been a supervisory desk" and spoke with an-
other woman. The clerk returned and said that the
checks could not be released. Johnson then asked the
clerk to check with Manners. She observed the clerk
s Respondent's members also can be paid directly by employers in that
industry. The demarcation line between when this happens and when, in-
stead, the checks are sent to Respondent for delivery to its members, is
neither clear nor pertinent to resolution of the dispute in this proceeding.
4 While there appears to have been some dispute as to the particular
employers for whom Fidelibus had worked on specific occasions, there is
no contention that he had occupied the status of an independent contrac-
tor nor that he had been other than an employee throughout 1979. There-
fore, I find, that at all times material during 1979 Fidelibus had been an
employee within the meaning of Sec. 2(2) of the Act.
' While Johnson did not know the name of the clerk, she described her
as being "a tall, thin girl with light brown hair and a very narrow chin."
walk to Manners' office, observed Manners come out of
his office, and observed Manners speak with the clerk.
According to Johnson, the clerk "returned to the desk.
Took Mr. Fidelibus' check off the desk, popped it back
into the file, and said, "Mr. Manners said he could not
have his check. I could not release it to you because he
owed dues on his card." Johnson paid her own work
dues, thereby securing release of her own checks, but did
not pay those of Fidelibus. She left without his check.
Johnson testified that later that same day she had re-
turned to Respondent's facility and had spoken personal-
ly with Manners. Manners agreed that this had occurred.
Johnson testified that during their conversation, Manners
had obtained a copy of Fidelibus' work dues card and
that Manners had "said that the only problem that he
knew of [in getting Fidelibus' check] was that the back
work dues had not been paid on the card." Johnson fur-
ther testified that when, toward the end of their conver-
sation, she had asked if Manners would release Fidelibus'
check to her, Manners had replied, "No, tell Fidelibus to
pay his card and I will release the check." Manners
agreed that there had been an occasion on which he had
gotten a copy of Fidelibus' work dues card for Johnson,
but he testified that he did not "believe" and did not
"recall it being June 14th." He did not, however, deny
specifically having made the statements attributed to him
by Johnson concerning the relationship between release
of Fidelibus' check and payment of his back dues.
Johnson testified that on July 3 she had again gone to
the work dues department and had requested any checks
that were there for Fidelibus.5 Johnson was told that Fi-
delibus' checks would not be released: "They said that
they were unable to release them to me. I am not sure
whether they said because he was trial boarded or be-
cause of non-payment of work dues."7 According to
Johnson she could see that there were four or five
checks for Fidelibus.8
In late July Fidelibus, himself, went to Respondent's
office to secure a postponement of the trial board pro-
ceeding date. He spoke with a clerical named Jan, whose
last name he did not recall.9 She suggested that if Fideli-
bus "went down to Mr. Manners [he] could probably
straighten out the whole thing." Instead, Fidelibus went
to the work-dues department and asked a clerkSO for his
checks. After checking his file, the clerk returned with
zerox copies of Fidelibus' checks and, in response to Fi-
delibus' query, said that she could not explain why the
6 Johnson did not recall the name of the clerk to whom he had spoken
initially that day, nor was she able to describe that clerk. However that
clerk's initials, as written on the receipt for Johnson's own checks which
she had received that day, were either "F.C." or "D.C."
7 The trial board is, in essence, an internal dispute resolution procedure
established by Respondent to resolve certain types of controversy.
s By the time of this conversation, the record discloses that the follow-
ing checks had been issued and sent to Respondent: a June 8, 1979, check
from When The West Was Fun, Inc., a Brad Marks Production: a June
11, 1979, check from Isis Productions, Inc.; a June 20, 1979, check from
Elliott Lawrence: a June 22, 1979, check from Ray Ellis Enterprises,
Inc.; and a June 28, 1979, check from National Broadcasting Company,
Inc.
I Respondent did not dispute Fidelibus' testimony that it had employed
a clerical named Jan during July.
'o Fidelibus was unable to either name or describe this clerk.
MUSICIANS UNION LOCAL 47
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388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checks themselves were not there. Fidelibus observed the
clerk speaking with another clerk," who said, "Mr.
Manners took them and he can't have them."
8. On July 27, 1979, Fidelibus filed a charge in this
matter. The return receipt for the copy of the charge
that had been sent to Respondent, by certified mail,
shows that it had been received on July 31, 1979. By
letter dated August 8, 1979, Manners sent to Fidelibus all
of his checks from employers that were then in Respond-
ent's possession. 2 Manners' letter advanced no explana-
tion for the delay in having transmitted these checks to
Fidelibus. However, the letter did recite the amount of
dues then owed by Fidelibus and demanded that Fideli-
bus pay them.
9. In a letter dated August 7 to the Board agent inves-
tigating Fidelibus' charge, Respondent's counsel stated:
In addition, I informed you that it is the custom and
practice of the Union to only release checks to that
person to whom said check is made out. Therefore,
in accordance with the Union By Laws the Union
was not authorized to release the check and/or
checks to Joanne Johnson.
This explanation was repeated in a letter, sent I week
later, to the Board's agent. In that letter, counsel stated:
Third, the only person authorized to pickup the
wage checks is the member of the Union to whom
said checks are made out or member of the immedi-
ate family for whom an authorization has been
signed. This is in accordance with a ruling by the
Board of Directors of the Union. (The original
ruling was reaffirmed on July 1, 1977.) Therefore,
the Union had no authority to release said checks to
Joanne Johnson.
However, Johnson denied expressly that anything had
been said to her during her June and July conversations
with Respondent's clerks, when she had asked for Fideli-
bus' checks, about Respondent not permitting her to
pickup Fidelibus' checks. Moreover, while Manners
denied initially that Fidelibus' checks had been withheld
because of his unpaid dues, he later testified concerning
this matter as follows:
Q. What was the reason that, or reasons, if there
were more than one, that the Union held the checks
of Mr. Fidelibus between the time period of June of
1979 and August when they released them?
A. Well, the work dues hadn't been paid on them
and he personally hadn't even asked for the checks.
Q. Is that the only reason?
A. That is the only one I can think of.
Q. Part of the reason that the checks were with-
held was not because Mr. Fidelibus, in your view,
had improper authorization on file, that the authori-
' Though he was unable to name this clerk, Fidelibus described her as
having been "a young girl, in her mid-20's or so."
12 And in addition to the check described in paragraph 7, supra, and
the checks described in fn. 8, supra, there were also checks dated July 18
and 27, 1979, from Ray Ellis Enterprises, Inc., and a check dated July II
from MCA, Inc., included with this letter.
zation given to JoAnn Johnson didn't allow her to
pick up the checks?
A. In the first instance, it happened because she
refused to pay for them and it never got into a dis-
cussion about any of it.
Q. Are you stating that the Union's reasons for
holding the checks during the time period June of
1979 to part of August, 1979, was not because the
authorization that was on file, allowing JoAnn
Johnson to pick up checks, was an invalid or im-
proper authorization?
A. I think there was discussion about maybe dis-
continuing that practice because we had a lot of
trouble with it.
Q. My question, Mr. Manners, was are you deny-
ing that one of the reasons that the checks were
held by the Union was-let me withdraw that. You
are not claiming that one of the reasons that the
checks were withheld from Mr. Fidelibus during
that time period was because the authorization sub-
mitted by Mr. Fidelibus to JoAnn Johnson was in-
valid because she was not a family member?
A. I can't give you any answer to that because
the decision was made by the board of directors
and I don't know what is on their head-
Q. Do you attend board of director's meetings?
A. But I don't know what they are thinking.
Q. I am not asking you for what they are think-
ing. As far as you know, was any any [sic] of the
explicit reasons given for the withholding of these
checks, did it have anything to do with the authori-
zation submitted by Mr. Fidelibus for JoAnn John-
son? Were any of the reasons related to her not
being a relative and, therefore, ineligible to pick up
his checks?
A. Yes, I believe that was one of them.
Q. When did that become a reason? What board
meeting where this was discussed that you became
aware of it?
A. The board meeting after the incident.
Q. That was a Tuesday following it?
A. Yes.
Q. So, at the time that the incident occurred with
JoAnn Johnson, the authorization that Fidelibus had
given to her was not in question. It was only later
at the board meeting that it came into question?
A. Yes.
Q. Did you at any time tell JoAnn Johnson or
Mr. Fidelibus that the authorization that he had
submitted was invalid or would not allow the re-
lease of checks to someone other than a relative of
Mr. Fidelibus?
A. The answer to that is "no."
10. Fidelibus had not been the only member of Re-
spondent whose paychecks, according to the evidence
produced at the hearing, had been withheld pending pay-
ment of back dues. As set forth above, when she had
sought to obtain Fidelibus' paychecks in June, Johnson
had been told that her paychecks, as well, were being
withheld until her own back dues had been paid. Music
copyist, Dave Oyler, testified that there had been four
MUSICIANS UNION LOCAL 47 389
occasions when he had been refused his paychecks by
Respondent's personnel for dues deficiencies between
1975 and January 12, 1979. Oyler testified that on the
latter date, he had spoken to three clerical employees,'
but that only after paying his dues, both those owing
from past paychecks and those owed on the check being
held that day, had his paycheck been released.
Composer/conductor/orchestrator John Beal testified
that approximately once a year, work-dues department
personnel had refused to give him a paycheck until the
dues which he owed on those checks had been paid. Beal
testified that the last such incident, prior to the hearing,
had occurred on December 12 or 13, 1979.' 4 On that oc-
casion, his check had not been released to Beal, but it
had been later given to him when he had tendered a
check to Respondent for the amount of dues owing on it.
Most significantly, by notice dated May 24, 1977, Re-
spondent's work-dues department notified music copyist
Joel Wiest that his membership had been suspended, that
he owed $31 through February 1977 or $55 for all of
1977 to reinstate his membership, and that "As soon as
your membership is reinstated, we will forward your
checks to you." When Wiest then pursued the matter
through the California Division of Labor Standards En-
forcement, Respondent had returned his paychecks to
the employers who had issued them on the basis of a
June decision of its board of directors "not to service
Joel Wiest until he pays his membership dues."15
I1. At a meeting of Respondent's board of directors on
January 15, 1980, a motion was passed. The substance of
that motion was recited in a notice, dated January 16,
1980, posted on all of the windows at Respondent's
work-dues department and published in Respondent's
newspaper, Overature. The substance of the notice reads:
Moved and seconded whereas all work dues are
due and payable when any or all checks are picked
L3 Oyler described the first clerical to whom he had spoken as having
been a 5-foot, 6-inch woman, in her early twenties, with long black hair
and "sort of an American/Oriental type of a look." He described the
other two clericals as having been supervisors. One of them, he testified,
had been named Butler and had been employed in the work-dues depart-
ment as recently as a few days prior to commencement of the hearing.
He further testified that the other supervisory clerical employee was no
longer employed by Respondent, but described her as having been ap-
proximately 5-feet 6-inches tall, somewhat overweight, and approximately
35 years of age. Respondent did not deny having employed a work-dues
department employee named Butler. Nor did it deny having employed
two other clerical employees whose appearances correspond to Oyler's
descriptions.
14 Although Beal was unable to identify by name the two clerical em-
ployees to whom he had spoken that day, he described one of them as
having been a "black lady in, I would estimate, her late 30's" who was
approximately 5 feet 7 inches tall and of medium build. Respondent did
not deny having employed such an individual in its work-dues depart-
ment in December 1979.
t Although Beal, Oyler, Wiest, and Fidelibus had each signed all au-
thorization for their employers to checkoff their dues and transmit them
directly to Respondent, apparently none of the employers had, in fact,
ever submitted separate checks to Respondent for the amounts of dues
owed by these employees. By contrast, the record discloses that each of
the employers did send separate payments to Respondent for the contrac-
tually required pension and health and welfare payments. There is no
basis for concluding that a similar course of action could not have been
pursued with respect to the dues that were to be checked off. Thus, the
existence of signed checkoff authorization does not afford Respondent a
defense to its conduct.
up at the Work Dues Department, therefore be it
resolved that the Treasurer be instructed to require
his staff to refer all non-payment of work dues im-
mediately to the Trial Board, including work dues
on pay-directs.
B. Conclusions
I. The General Counsel alleges that between June 14
and August 8, 1979, Respondent had refused to release
Fidelibus' paychecks to him until he had paid all dues
which he owed as a member of Respondent. Respond-
ent's primary argument, in response to this allegation, is
that Fidelibus never had made a proper demand for his
paychecks, having made his request through a nonrela-
tive, Johnson, who was not eligible to receive his pay-
checks under Respondent's policy of not releasing pay-
checks to nonrelatives. However, the undisputed evi-
dence and objective considerations do not support Re-
spondent's argument, but rather establish that Fidelibus'
paychecks had been withheld, during that approximately
2-month period, because of his nonpayment of dues.
First, Johnson testified, without dispute, that nothing
had been said to her on June 14 nor on July 3, 1979, re-
garding any policy concerning nonrelatives picking up
paychecks. Indeed, her testimony is undisputed that earli-
er in 1979 she had picked up paychecks for Fidelibus
without protest by work-dues department personnel.
Moreover, the authorization, signed by Fidelibus, for her
to do so was produced at the hearing. So far as the
record discloses, Respondent had voiced no objection to
Fidelibus, at the time that he had executed that authori-
zation, concerning permitting Johnson, a nonrelative, to
pick up his paychecks. Yet, had Respondent been ob-
serving its stated policy, it seems unlikely that it would
have accepted such an authorization from Fidelibus at
the time that he executed it. Furthermore, there is no
evidence that any mention had been made of Johnson's
nonrelative status until after the charge had been filed
against Respondent. In these circumstances the conclu-
sion is warranted that, notwithstanding its policy, Re-
spondent had been following the practice of allowing
nonrelatives to pick up members' paychecks so long as,
at least, there had been written authorizations, signed by
the members, permitting nonrelatives to do so. Conse-
quently, this defense, regarding Johnson's nonrelative
status, is no more than an afterthought, advanced follow-
ing the filing of the charge to conceal the true reason for
the refusal to tender Fidelibus' paychecks between June
14 and August 8, 1979.
Second, Johnson testified that she had been told, at
several points during her conversations in June and
July-once by Manners himself, that Fidelibus' checks
could be picked up only after his dues arrearages had
been paid. As pointed out in paragraph 7, supra, Manners
did not deny specifically having told Johnson that Fideli-
bus' failure to maintain currency in his dues had been the
cause of her not being able to get his checks. Johnson
identified most of the work-dues personnel to whom she
had spoken, either by means of physical descriptions or
through the initials of the name of one of them. Re-
spondent did not deny that persons corresponding to
MUSICIANS UNION LOCAL 47
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these identifications had been employed by it. Yet, it nei-
ther called, nor advanced any explanation for failing to
call, any of them as witnesses to deny the remarks attrib-
uted to them by Johnson. Its failure to do so gives rise to
an inference that had they been called, their accounts of
their remarks to Johnson would not have been favorable
to Respondent. Colorflo Decorator Products, Inc., 228
NLRB 408, 410 (1977), enfd. by memorandum opinion
582 F.2d 1289 (9th Cir. 1978).
Third, the descriptions given by Oyler, Beal and
Wiest, concerning the withholding of their paychecks
until their dues obligations to Respondent have been sat-
isfied, all tend to confirm Johnson's account that she had
been denied Fidelibus' paychecks until his back dues had
been paid. Moreover, in the final analysis, the testimony
of Manners, reproduced in paragraph 9, supra, tends to
confirm her account as well. For, as he finally conceded,
in June and July, it had not been propriety of the author-
ization of Johnson to pick up Fidelibus' paychecks that
had been "in question." Rather, the only matter that had
been of concern had been Fidelibus' dues deficiency.
Therefore, I find that a preponderance of the evi-
dence supports the conclusion that Respondent had held
Fidelibus' paychecks between June 14 and August 8,
1979, because he had failed to satisfy the dues obligation
owing to Respondent by virtue of his membership.
2. The General Counsel alleges that the withholding of
Fidelibus' paychecks until he paid his membership dues
constituted a violation of Section 8(b)(1)(A) and (2) of
the Act. Respondent disputes that allegation. Yet, receiv-
ing payment for one's labor is both a term and a condi-
tion of employment. "Indeed, we are hard pressed to
think of a matter of more vital concern to employees
than that involved herein-receiving payment for one's
labor." Air Surrey Corporation, 229 NLRB 1064 (1977).
One of the purposes of the Act is to keep separate em-
ployment rights, such as the right to receive a paycheck,
from membership obligations owed to labor organiza-
tions by employees. "Integral to the policy underlying
both Section 8(b)(1)(A) and (2) of the Act was the intent
to separate membership obligations owed by employees
to their labor organizations from the employment rights
of those employees." International Longshoremen's and
Warehousemen's Union, Local 13 (Pacific Maritime Associ-
ation), 228 NLRB 1383, 1385 (1977), enfd. 581 F.2d 1321
(9th Cir. 1978), and cases cited therein. Thus, while a
labor organization is free to seek the discharge of em-
ployees who fall behind in their financial obligations to
it, that is the sole measure available to it under the Act
to enforce the financial obligations of its members.
"Nothing in the Act or its legislative history persuades
us that the union-shop provisions to Section 8(a)(3) and
8(b)(2) were designed to give employers and unions a li-
cense to use various discriminatory devices, short of dis-
charge [to require that employees join or maintain their
union membership]." Krambo Foods Stores, Incorporated,
et al., 106 NLRB 870, 877 (1953). Here, Respondent has
accepted responsibility for serving as a conduit for trans-
mitting some paychecks from employers to employees.
Having become involved in this facet of the employment
relationship, it is obliged, as are labor organizations oper-
ating exclusive hiring halls, to maintain the statutorily
mandated separation between employment rights and
membership obligations. Therefore, by withholding Fide-
libus' paychecks as a lever to extract the membership
dues which he owed to it, Respondent violated Section
8(b)(l)(A) and (2) of the Act.
3. Respondent has raised a series of defenses. The first
one, alluded to in footnote 2, supra, pertains to the Gen-
eral Counsel's failure to adduce evidence showing that
MCA Records, Inc., National Broadcasting Company,
Inc., and Ray Ellis Enterprises, Inc., have operations of
sufficient magnitude to satisfy the legal and discretionary
jurisdictional standards. Even according full credence to
this defense, the absence of evidence regarding the
volume of operations of those three employers does not
suffice to deprive the Board of jurisdiction in this matter.
As set forth in section I, supra, the operations of ABC
are of sufficient magnitude to establish Board jurisdic-
tion. Fidelibus' check that was first denied to Johnson on
June 14 had been one issued by its division. Accordingly,
Respondent's refusal to transmit that paycheck to Fideli-
bus, through Johnson, suffices, of itself, to establish a
violation of Section 8(b)(1)(A) and (2) of the Act. Addi-
tional findings regarding each of the succeeding checks,
which Respondent refused to transmit to him, would be
cumulative. It would not serve to change the substance
of the remedy warranted by its refusal to transmit the
initial check. Therefore, the General Counsel's failure to
produce evidence to overcome Respondent's denial of
Board jurisdiction over MCA Records, Inc., National
Broadcasting Company, Inc., and Ray Ellis Enterprises,
Inc., does not serve to preclude a finding that Respond-
ent violated Section 8(b)(1)(A) and (2) of the Act in this
proceeding. ' 6
4. Respondent argues that it has internal disputes-reso-
lution procedures and that Fidelibus should be required
to exhaust those procedures before the Board is bur-
dened with having to resolve the issue arising from the
withholding of his paychecks pending payment of his
back dues. In making this assertion, Respondent relies on
the doctrine enunciated in Collyer Insulated Wire, A Gulf
and Western Systems Co., 192 NLRB 837 (1971). Yet,
that doctrine replies to disputes arising under collective-
bargaining agreements between unions and employers. It
is confined to situations "where disputes turn on collec-
tive bargaining agreements .... " Newspaper Guild of
Greater Philadelphia, Local 10, et al. [Peerless Publications]
v. N.L.R.B., 636 F.2d 550 (D.C. Cir. 1980). Moreover,
there has been no showing here that Fidelibus' dispute
with Respondent could have been resolved under the
'I Nor does the fact that Fidelibus may have been employed by ABC
Circle Films, a Division of ABC, when he had performed the services
covered by that check. As is true of the Division of ABC that issued the
check refused to Johnson on June 14, there has been no showing that
ABC Circle Films is an entity separate and distinct from ABC. More-
over, regardless of which entity actually employed Fidelibus, there is, as
is pointed out in fn. 4, supra, no dispute that, at all times material, he had
been an employee within the meaning of Sec. 2(3) of the Act. As express-
ly stated in that subsection, to satisfy the definition of employee, there
need be no showing that an individual is employed by a specific employ-
er. Sec. 2(3) of the Act "includes not only the existing employees of an
employer but also, in a generic sense, members of the working class."
John Hancock Mutual Life Insurance Company v. N.L.R.B., 191 F.2d 483,
485 (D.C. Cir. 1951).
----
MUSICIANS UNION LOCAL 47 391
terms of any of the collective-bargaining agreements pro-
duced during the course of the hearing. Section 10(a) of
the Act provides specifically that the Board's power to
prevent unfair labor practices "shall not be affected by
any other means of adjustment or prevention that has
been or may be established by agreement, law, or other-
wise." The Board has not adopted a policy of deferral
for exhaustion of internal disputes resolution procedures
between labor organizations and their members. Fideli-
bus has a statutory right to be free of job interference,
save as prescribed by the Act, for disputes between Re-
spondent and him concerning his dues obligations. As
pointed in Conclusions of Law 2, supra, this is a right
which is integral to operation of the Act and one to
which he is entitled to protection under the Act. There-
fore, "inasmuch as this case involves allegations of
[union] interference with an employees' individual basic
protected rights under Section 7 of the Act [deferral is
not warranted]." Melones Contractors. A Joint Venture,
241 NLRB 14 (1979).
5. Respondent further argues that its International
body is an indispensable party of this proceeding inas-
much as it "not [Respondent], is signatory to the collec-
tive bargaining agreements .... " However, there is no
allegation that either the terms of those collective-bar-
gaining agreements or the procedure of transmitting
checks to labor organizations for distribution to their
members constitutes a violation of the Act. Either, the
allegation here is confined to the manner in which Re-
spondent-and only Respondent-has chosen to imple-
ment that procedure. The evidence does not show that
Respondent's International had been a participant in or
had been aware of Respondent's manner of implementing
that procedure. Congress has made clear that internation-
al unions are not to be held liable for the acts of their
locals purely on the basis of the relationship between
them. See Carbon Fuel Company v. United Mine Workers
of America et al., 100 S. Ct. 910 (1979). Accordingly, the
allegations of the complaint in this matter do not involve
Respondent's International. Therefore, it is not an indis-
pensable party.
6. Respondent argues that inasmuch as Fidelibus'
checks had been transmitted ultimately to him and in
view of the fact that its board of directors had then pro-
mulgated a purportedly curative policy, embodied in the
notice quoted in findings of fact II 1, supra, any violation
that it may have committed has been remedied and is no
more than de minimis in nature. However, the substance
of the January 1980 notice hardly satisfies the Board's
standards for effective repudiation of an unfair labor
practice. See discussion, Douglas Division, The Scott &
Fetzer Company, 228 NLRB 1016, 1024 (1977), and cases
cited therein. That notice did not refer to the withhold-
ing of Fidelibus' checks. It did not state specifically, or
even inferentially, that Respondent would refrain from
withholding paychecks as a lever to extract dues pay-
ments from its members. It was not published until over
5 months after Fidelibus' checks finally had been trans-
mitted to him. Moreover, as Johnson's experience involv-
ing her own paychecks on June 14, set forth in findings
of fact 7, supra, and as the experiences of other employ-
ees, set forth in findings of fact 10, supra, demonstrate,
Respondent's June 14 conduct with regard to Fidelibus'
paycheck had not been unique. Either, Respondent had
engaged in similar actions with respect to the paychecks
of other employees and over a significantly greater
period of time than the 2-month period involving Fideli-
bus. In these circumstances, there is no basis for conclud-
ing that its conduct between June 14 and August 8, 1979,
had been isolated and de minimis.
7. As part of the remedy for Respondent's violation of
the Act, the General Counsel urges that Respondent be
ordered to publish the notice in the Overature, Respond-
ent's monthly newspaper. The record shows that Re-
spondent has thousands of members in the Los Angeles,
California, area. The population of that area is, of course,
disbursed over a broad geographic area. While it has
been shown that some members, on some occasions, do
come to Respondent's office to pick up paychecks and to
pay dues, the record is also clear that a substantial
number of paychecks are transmitted directly to Re-
spondent's members by the employers for whom they
work. Thus, there is no assurance that any notice posted
at Respondent's office would likely, during a 60-day
posting period, be observed by even a substantial number
of Respondent's members. Moreover, by publication of
its own January 15, 1980, board of directors resolution,
quoted in findings of fact II, supra, in the Overature, Re-
spondent has shown that it regards publication as the
only effective means of assuring communication of its
messages to its members. Therefore, I find that publica-
tion of the notice in this matter in the Overature is war-
ranted. See, for example, N.L.R.B. v. Union Nacional de
Trebajadores [Macal Container Corp.], 540 F.2d 1, 11-12
(Ist Cir. 1976), cert. denied 429 U.S. 1039; N.LR.B. v.
Crown Laundry & Dry Cleaners, 437 F.2d 290, 294 (5th
Cir. 1971).
CONCLUSIONS OF LAW
I. American Broadcasting Companies, Inc., is an em-
ployer within the meaning of Section 2(2), engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Musicians Union Local 47, American Federation of
Musicians, AFL-CIO, is a labor organizaton within the
meaning of Section 2(5) of the Act.
3. By withholding a paycheck of Camillo Fidelibus be-
tween June 14 and August 8, 1979, because he had failed
to pay his membership dues, Musicians Union Local 47,
American Federation of Musicians, AFL-CIO, has vio-
lated Section 8(b)(X1A) and (2) of the Act.
4. The aforesaid unfair labor practice is one which af-
fects commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Musicians Union Local 47, Ameri-
can Federation of Musicians, AFL-CIO, has engaged in
unfair labor practices in violation of the Act, I shall rec-
ommend that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the
policies of the Act.
MUSICIANS UNIO L CAL 47 391~~
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 17
The Respondent, Musicians Union Local 47, American
Federation of Musicians, AFL-CIO, Los Angeles, Cali-
fornia, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Withholding and refusing to transmit to its mem-
bers paychecks which it has received from their employ-
ers until those members satisfy their membership dues
obligations to it.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Post at its office, place of business, and meeting
places, copies of the attached notice marked "Appen-
dix.""' Copies of said notice, on forms provided by the
Regional Director of Region 31, shall, after being duly
signed by Respondent's representative, be published in
1t In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections hereto
shall be deemed waived for all purposes.
"I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
six consecutive issues of Overature on the final page of
that official publication, which page shall not be encum-
bered by any other written material. In addition, the
duly signed notice shall be mailed to American Broad-
casting Companies, Inc. for posting, should it be willing.
The duly signed notice shall be posted by Respondent
immediately upon receipt thereof and shall be maintained
by it for 60 consecutive days, in all places where notices
to its members are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not al-
tered, defaced, or covered by any other material.'
(b) Notify the Regional Director of Region 31, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
I9 Associated Musicians of Greater New York, Local 802. American Fed-
eration of Musicians, AFL-CIO (Huntington Town House, Inc.), 225 NLRB
559 (1976).
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold or refuse to transmit
your paychecks which we receive from your em-
ployers because you have failed to pay fully the
dues which you owe us as members.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of your rights
under Section 7 of the Act.
MUSICIANS UNION LOCAL 47, AMERICAN
FEDERATION OF MUSICIANS, AFL-CIO