Pacific Amphitheatre

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 32 (N.L.R.B. 1985)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Nederlander d/b/a Ned West, Inc, d/b/a Pa
cific Amphitheatre and Bert Eshleman and
International Alliance of Theatrical Stage Em
ployees and Moving Picture Machine Operators
of the United States and Canada, Local 504,
Party to the Contract
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada , Local 504 and Bert
Eshleman Cases 21-CA-22580 and 21-CB-
8601
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 March 1985 Administrative Law Judge
Roger B Holmes issued the attached decision The
Respondent Union filed exceptions and a support-
ing brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondent James Neder
lander d/b/a Ned West, Inc, d/b/a Pacific Am-
phitheatre, Costa Mesa, California, its officers,
agents, successors, and assigns, and Respondent
International Alliance of Theatrical Stage Employ
ees and Moving Picture Machine Operators of the
United States and Canada, Local 504, Anaheim,
California its officers, agents, and representatives
shall take the action set forth in the Order
' The Respondent Union has excepted to some of the judge s credibil
ity findings The Board s established policy is not to overrule an adminis-
trative law judge s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect Stand
and Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
i
Robin L Kubicek, Esq of Los Angeles California coup
sel for the General Counsel
Bert Eshleman of Thermal California for the Charging
Party
Michele S Ahrens, Esq (Iverson Yoakum Papiano &
Hatch), of Los Angeles, California for the Respondent
Employer
Michael B Roger Esq and Vincent A Harrington, Jr
Esq (Bourg Weinberg, Roger & Rosenfeld) of San
Francisco California and Los Angeles California for
the Respondent Union
DECISION
STATEMENT OF THE CASE
ROGER B HOLMES Administrative Law Judge The
unfair labor practice charge in Case 21-CA-22580 was
filed on September 14 1983 by Bert Eshleman ' The
first amended unfair labor practice charge in Case 21-
CA-22580 was filed on September 20 1983 by Eshle
man The unfair labor practice charge in Case 21-CB-
8601 was filed on September 14 1983 by Eshleman
The General Counsel of the National Labor Relations
Board issued on February 14 1984 an order consohdat
mg cases consolidated complaint and notice of hearing
in Cases 21-CA-22580 and 21-CB-8601 In the General
Counsels consolidated complaint it is alleged that James
Nederlander d/b/a Ned West Inc d/b/a Pacific Am
phitheatre (the Respondent Employer) has engaged in
unfair labor practices within the meaning of Section
8(a)(1) (2) and (3) of the National Labor Relations Act
In the General Counsels consolidated complaint it is
also alleged that International Alliance of Theatrical
Stage Employees and Moving Picture Machine Opera
tors of the United States and Canada Local 504 (the Re
spondent Union) has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the
Act Both the Respondent Employer and the Respondent
Union filed answers to the General Counsels consolidat
ed complaint and they denied that they had engaged in
the alleged unfair labor practices
The trial in this proceeding was held on October 2 and
3 1984 at Los Angeles California The time for the
filing of posttnal briefs was extended to November 14
1984 Both the General Counsel and the Respondent Em
ployer made closing arguments on the record at the trial
Both the Respondent Union and the Charging Party filed
posttnal briefs
At the trial the attorneys for the parties discussed the
submission of a late filed exhibit by the Respondent
Union The proposed exhibit was to be a summary of
certain information from the Respondent Employers Ex
hibit 2 which was already in evidence (Tr 291-292 )
The designation of Respondent Union s Exhibit 1 was re
served for that document The proposed exhibit was at
tached to the posttrial brief of the Respondent Union
The Respondent Union offered the exhibit into evidence
at the time its brief was filed No opposition has been re
ceived from any other party Therefore Respondent
Union s Exhibit 1 is received into evidence
On November 13 1984 a posttnal motion to amend
complaint was received from the General Counsel On
the same date I issued an Order to Show Cause with
regard to the General Counsels motion The General
Counsel moved to amend the allegations of paragraph 7
of the General Counsels consolidated complaint which
' This is the spelling of the name of the Charging Party as he gave his
name at the trial To avoid confusion in the caption of the case and else
where, I correct the spelling of his name in the formal documents which
were introduced into evidence as G C Exh I
276 NLRB No 8
NED WEST INC 33
pertains to a description of the unit of employees in
volved in this proceeding No opposition to the General
Counsels motion was received from any other party by
the due date of November 26 1984 Therefore the Gen
era] Counsels motion to amend complaint is granted
FINDINGS OF FACT
I JURISDICTION
The Respondent Employer has been at all times mate
nal a California corporation engaged in the business of
operating a concert theater in Costa Mesa California,
called the Pacific Amphitheatre It opened for business
on July 29 1983 During the calendar year of 1983 the
Respondent Employer in the course and conduct of its
business operations derived gross revenues in excess of
$500 000 and during the same period of time purchased
in excess of $2500 worth of insurance from outside the
State of California
Based on the foregoing facts admitted in the pleadings
I find that the Respondent Employer has been at all
times material an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act
II LABOR ORGANIZATION
Based on the pleadings and the evidence presented in
this case I find that the Respondent Union has been, at
all times material a labor organization within the mean
ing of Section 2(5) of the Act
III SEQUENCE OF EVENTS
A The Events in April 1983
The findings of fact in this section and throughout this
decision are based on the credited portions of the tests
mony from each one of the five persons who were called
as witnesses to testify in this proceeding I have consid
ered the demeanor of the witnesses while they were tes
tifying Also I have given consideration to the consisten
cy of their accounts and the basis for their knowledge of
the facts about which they testified In addition , certain
findings are based on documentary evidence and on stip
ulations of fact by the parties at the hearing in this pro-
ceeding
Eugene J Felling who was a witness at the trial in
this proceeding held the position of general manager of
the Respondent Employers Pacific Amphitheatre from
April 18 1983 to March 5 1984 2 At first his office was
located at the Pantages Theatre in Hollywood where the
Nederlander enterprises maintained corporate headquar
ters for 15 or 20 different companies Later Felling
moved his office to a trailer on the construction site of
Pacific Amphitheatre Eventually he moved his office to
a permanent location at Pacific Amphitheatre 3
2 Previously Felting had worked for the city of Anaheim California,
which operated the Anaheim Stadium At the time of the trial Felling
worked at the Universal Amphitheatre
3 The foregoing is based on the credited testimony of Felling
Sometime in early April 1983 Stan Ogorzalek who
was a witness at the trial in this proceeding and who is
the secretary treasurer and business agent of Local 857
of IATSE had a conversation with Jerry Weaver buss
ness representative of the Respondent Union At that
time Ogorzalek told Weaver that Local 85 of IATSE
was going to try to get a contract with Pacific Amphith
eatre
On April 27 1983 Ogorzalek was in a negotiating
meeting with the Nederlander representatives regarding
contracts at theaters in Los Angeles County Present for
the Nederlander enterprises were Stan Seiden David
Green, and Attorney Noel Hatch Present for Local 857
of IATSE were Ed Fisher president of Local 857 of
IATSE and Ogorzalek At that time the Employer was
going to return with a counterproposal to the Union
Ogorzalek brought up the subject of the Pacific Am
phitheatre which was to be opened later that year 4 The
Employer s representatives told Ogorzalek That s
going to change the light on our proposal to you After
that meeting Ogorzalek informed Business Representa
tive Weaver that the Pacific Amphitheatre was part of
Ogorzalek s negotiations with the Nederlanders 5
B The Events in May 1983
As the general manager of the Pacific Amphitheatre
Felling was involved in the negotiations which resulted
in a collective bargaining agreement between the Em
ployer and the Union Introduced into evidence as Gen
eral Counsels Exhibit 2 was a copy of that collective
bargaining agreement
In May 1983 representatives of the Union went to the
Pantages Theatre and gave a copy of the Unions pro
posed agreement to Felling and Stan Seiden who is the
president of the Employer The Union s representatives
at the meeting were Jerry Weaver business representa
tive of the Union and Gilbert Lane president Bill
Butler accompanied them 6
At the meeting the Union s representatives said that it
looked as if they were going to get the box office funs
diction and when the Union and the Employer actually
started negotiations the Union would give the Employer
a proposal which would cover the box office as well
The contract proposal at that time covered stagehands
but it did not cover box office personnel Felling showed
the union representatives some construction drawings of
the facility The Employers representatives did not look
at the Unions proposal at that time Felling estimated
that the meeting lasted from 20 to 30 minutes at the
most T
As indicated earlier in Statement of the Case Bert
Eshleman is the Charging Party in this proceeding He
also was a witness at the trial Around 6 weeks before
The Pacific Amphitheatre is located in Orange County Cahforma
S The foregoing is based on the credited tesimony of Ogorzalek
Weaver did not testify at the teal
Felling stated at the trial that previously he had worked with Butler
at the Anaheim Convention Center Butler subsequently was appointed to
be the union steward at the Pacific Amphitheatre
T The foregoing is based on the credited testimony of Felling Seiden
Weaver Lane, and Butler did not testify at the trial
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eshleman went to work for the Employer on June 21
1983 he had some conversations with John Bright the
treasurer of the box office at the Pacific Amphitheatre
The conversations were with regard to Eshleman s pro
spective employment The exact dates of those conversa
tions were not established but when counting back ap
proximately 6 weeks before June 21 1983 it is indicated
that the conversations occurred sometime in May 1983 8
Eshleman s testimony regarding his conversations with
Bright was received by me into evidence at that time
not for the truth of the matters asserted by the out of
court declarant who in this instance was Bright Para
graph (c) of Rule 801 of the Federal Rules of Evidence
defines hearsay as follows Hearsay is a statement
other than one made by the declarant while testifying at
the trial or hearing offered in evidence to prove the
truth of the matter asserted
As indicated during the discussion among the attor
neys and me (Tr 31-46) Eshleman s testimony regarding
his conversations with Bright also might be found to be
admissible insofar as the Employer was concerned as
admissions by the Employer who was a party opponent
to the General Counsel Because the issue arose at an
early stage of the trial during the direct examination of
the first witness and because it was not clear at that
point whether Bright was a statutory supervisor and
agent of the Employer I indicated I would make that
determination after listening to all the evidence
John Bright was appointed the treasurer of the Pacific
Amphitheatre in May 1983 He held that position until
the middle of November 1983 Bright s immediate super
visor was Felling 9
Felling testified with regard to Bright I gave him au
thonty to hire everyone except for the first assistant
treasurers And I told him that they would have to be
approved by me Bright had the authority to recom
mend that a box office employee be fired by the Em
ployer but he first had to get approval from Felling
Felling further testified I would take his recommenda
tion because he was their immediate supervisor and he
knew their working habits better than I
Felling and Bright discussed and then agreed on the
actual operating times of the box office and the staffing
levels which were required Bright then did the actual
scheduling of employees and Bright was the one who
assigned overtime work to a particular employee Felling
testified
Well the box office is a separate department
And he was the department head He was responsi
ble for setting up the box office the Ticketron coin
puters manifesting the house-in other words as
signing a seat location to the actual seat which was
a big chore-hiring the staff securing the office fur
mture I mean it was just starting a whole company
within a company
8 The foregoing is based on the credited testimony of Eshleman
Bright did not testify at the trial
9 The foregoing and the following are based on the credited testimony
of Felling
Bright hired Eshleman and Diane Freer as box office
employees of the Employer at the Pacific Amphitheatre
Freer testified as a witness at the trial (See sec C
herein )
In view of the foregoing I find that Bright was a stat
utory supervisor of the Employer at times material
herein within the definition of Section 2(11) of the Act
In its decision in Big Rivers Electric Corp 266 NLRB
380 382 (1983) the Board held
It is well established that the definition of statuto
ry authority must be read in the disjunctive and,
therefore supervisory status is proven if the evi
dence establishes the existence of any one of the
statutory criteria listed regardless of the frequency
of its use
Section 2(13) of the Act states
(13) In determining whether any person is acting
as an agent of another person so as to make such
other person responsible for his acts the question of
whether the specific acts performed were actually
authorized or subsequently ratified shall not be con
trolling
Guidance on this question may also be found in The
Developing Labor Law 2d Ed (1983) vol II p 1445
where it is stated
Thus an employer is held liable for the acts of a
supervisor acting under his apparent authority even
if such acts are contrary to instructions 129 The su
pervisor in such cases is in effect the employer
129
(1964)
Aladdin Indus Inc 147 NLRB 1392 56 LRRM 1388
Felling said that he did not give Bright any authority
to negotiate with any union nor did Felling give Bright
any authority to make any statements concerning union
representation unless Felling told Bright what to say if
people had questions Felling denied that he told Bright
or any other box office employees that even if the Re
spondent Union was the representative union they
would be covered by the wage scale of Local 857 of
IATSE If Bright had made such a statement Felling
said at the trial that it was done without Felting s author
ity and Felling said that he did not know that Bright
had made such a statement 10 As indicated in the quoted
material above, the fact that Felling did not authorize
Bright to make certain statements is not controlling here
After considering the foregoing matter I find that
Eshleman s testimony regarding his conversat ons with
Bright is also admissible under Rule 801(d)(2)(D) of the
Federal Rules of Evidence as an admission by a party
opponent insofar as the Employer is concerned be
cause the Employer in this proceeding is a party oppo
nest to the General Counsel
10 The foregoing is based on the credited testimony of Felling As in
dicated previously Bright did not testify at the trial
NED WEST INC 35
When Eshleman learned that Bright had been made
the treasurer for the box office at the Pacific Amphith
eatre Eshleman telephoned Bright at the Pantages Thea
tre in order to congratulate him on his position Previ
ously Bright had been an assistant of Eshlemans for
many years at the Universal Amphitheatre During their
telephone conversation Bright inquired if Eshleman
would hke to come to work at the Pacific Amphitheatre
Eshleman replied that he would Bright said that Eshle
man would be a first assistant and that Bright would
assure him that Eshleman would be working under the
contract of Local 857 of IATSE as well as the other
two first assistants With regard to the other box office
personnel Bright told Eshleman that Bright did not
know what would happen that it was up in the air and
that it could go either way to the Union or to Local 857
of IATSE
At the time of that conversation and the time of the
trial Eshleman was a member of Local 857 of IATSE
and he was not a member of any other union
Also around 6 weeks before June 21 1983 Eshleman
had another conversation with Bright with regard to his
prospective employment with the Employer Bright told
Eshleman that the union status was up in the air that
they could either go to 504 or to 857 Eshleman further
testified that, He said however he had made arrange
ments with management that he would be able to hire his
three first assistants-myself Patty Spitler and Chris
Duran-under a contract at Local 857 and pay us ac
cording to their contract
Eshleman acknowledged during cross examination that
no one in the Respondent Employers management other
than Bright personally had told Eshleman that he and
three others would be given the wage scale of Local 857
of IATSE However Eshleman also testified John
Bright told me that the information came from Stan
Seiden who is above I believe Gene Felling i i
C The Events in June 1983
On June 9 1983 there was a meeting between repre
sentatives of the Employer and the Union i 2 Present on
behalf of the Employer were Felling and Seiden Felhng
also said at the trial that David Green, the Employer s
controller possibly could have been there Present on
behalf of the Union were Weaver Lane and Butler
Felling estimated that the meeting lasted for 3 hours
Felling testified
Well it was on actual negotiations And the
union wanted to begin negotiations from the pro
posal they had given us And we said that we could
not even consider that proposal because we had to
have the same type of agreement that our competi
tor, Irvine Meadows had negotiated So we agreed
to disregard their proposal And we instead institut
ed the basic Irvine agreement And we began nego
tiations from the Irvine agreement
i i The foregoing is based on the credited testimony of Eshleman
i' The following is based on the credited testimony of Felling The
other persons mentioned in his account did not testify at the trial
During the negotiations at the June 9 1983 meeting
the Employer and the Union discussed the terms and
conditions of employment of the box office employees as
well as the stagehands who were to be hired at the Pa
cific Amphitheatre Felling stated at the trial that a tents
tive agreement was reached at that meeting He ex
plained what he meant by a tentative agreement as fol
lows
When I am involved in negotiating it is not
really an actual final agreement until it is signed and
committed to paper But we reached an agreement
at that time as to what we all felt should go into
that final signed document
Felling also testified We felt we had enough at that
point to commit it to writing With the one excep
tion as to the rates on the box office people Felling fur
ther testified
Well there was one minor modification which
was the actual rates as to the box office employees
At the June 9 meeting we agreed that the box office
employees would be paid the prevailing union rate
in effect in Orange County And we agreed to use
the rate that was in effect at the Anaheim Conven
tion Center and Anaheim Stadium We didn t know
what that rate was But we both agreed that we
would use the rate once we found out what the
dollar number was So we found that out and that
was put into the agreement
Then the second change came about at a later
meeting an unscheduled meeting where we were
told that the International IATSE wished that the
box office treasurer be covered by the agreement
And we then agreed to include them in the agree
ment as well
With regard to the wage rates to be paid to the box
office employees Felling further stated
Well we both agreed where we would obtain the
rate And we said whatever rate was in effect with
the City of Anaheim would be the rate that we
would put in our box office We just didn t know
the actual dollar amount
The treasurer position was not considered at the June
9 1983 meeting
All the other terms and conditions which appear in
General Counsels Exhibit 2 were agreed to by the par
ties at the June 9 1983 negotiating meeting However,
nothing was signed at that time Felling testified No
nobody signed anything We verbally agreed And like I
said we all had our notes And we all compared notes to
make sure we both had the same thing But nobody
signed anything
Felling said at the trial that it was clear at that meet
ing that any agreement reached would be subject to a
satisfactory written document being produced
On June 10 1983 Ogorzalek had a telephone conver
sation with Weaver Ogorzalek told Weaver that Ogor
zalek understood that Weaver had negotiated a contract
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Pacific Amphitheatre. Ogorzalek told Weaver
that Local 857 of IATSE had jurisdiction in Orange
County. Weaver replied that he had a contract, and that
Walter Diehl told Weaver that -he could have jurisdic-
tion in Orange County. Og6rzalek said that Local 857 of
IATSE had jurisdiction, and Ogorzalek had a'copy of a
letter that Ogorzalek would send to Weaver to verify
that. At the trial, Ogorzalek stated that a letter he wrote
to Weaver on that date "really states what went on in his
conversation, in essence . I don't remember the details." 13
Introduced into evidence as General Counsel's Exhibit
8 was a copy of a letter date June 10, 1983, from Ogor-
zalek to Weaver. The letter was prepared under Ogorza-
lek's direction, signed by Ogorzalek, and mailed to
Weaver with copies to the other persons named thereon.
In part the letter states:
Regarding our conversation today pertaining to
the Nederlander Costa Mesa Amphitheatre and
your tentative contract agreement with the Neder-
landers to cover the box office employees under
mixed Local 504 IATSE, I wish to point out that
Walter Diehl gave this Local jurisdiction in Orange
County of roadshow motion pictures and legitimate
theatres in a letter dated September 25, 1972. A
copy enclosed.
The Nederlanders have hired a Treasurer from
this Local, for the Costa Mesa theatre and he in turn
has hired some other members from this Local.
Moreover the Nederlanders have negotiated over
the box office of the Costa Mesa theatre as part of
our negotiations for the Pantages Theatre, the Wil-
shire Theatre, the Greek Theatre and the California
Civic Light Opera, currently in-progress.
Please do not execute any agreement until we
can talk to Walter Diehl and the Nederland'er orga-
nization. It is our feeling that the IATSE should
strive not to become embroiled in NLRB 'jurisdic-
tional disputes among member Locals.
I will keep you informed regarding developments
in this matter and would appreciate the same from
you.
Attached to General Counsel's Exhibit 8 is a copy of, a
letter dated September 25, 1972, from Walter F. Diehl,
assistant International president, to the President of
Local 857 of IATSE. The attachment to General Coun-
sel's Exhibit 8 was received only for the limited purpose
of showing what Ogorzalek transmitted with Ogorzalek's
letter to Weaver. In part, that attachment states: •
This letter will serve to confirm the extension of
the jurisdiction of Local No. 857 so as to include le-
gitimate theatre and roadshow motion picture pres-
entation houses in Orange County, California.
The jurisdiction of Local No. 857 will not in-
clude ticket sales in legitimate theatre and roadshow
motion picture presentation houses in both Los An-
geles and Orange Counties.
13 The foregoing is based on the credited testimony of Ogorzalek
Sometime in June 1983 after 'the June 9, 1983 meeting
and prior to, the time the Pacific Amphitheatre began
selling tickets to the public on July 5, 1983, there was an
unscheduled meeting between :representatives of the Em-
ployer, the Union, and Local 857 of IATSE. Present for
the Employer were Felling and ' Bright. Present for the
Union were Weaver and Lane. Felling did not recall at
the trial whether or not Butler was there. -Present ,for
Local 857 of IATSE were Ogorzalek and another repre-
sentative who was not named by Felling. ,Those persons
met in the construction trailer at the Pacific Amphith-
eatre jobsite. Felling testified:
Well, a little bit of background. This was a con-
clusion to a. concern that we had raised in our June
9 meeting' as, to the jurisdiction of the box office
employees. We the employer had said to 504, after
they told us' that the International had given them
jurisdiction, we said, "We want, to be sure of that.
because-,we don't want to be caught between a ju-
risdictional dispute between the two locals."
And they assured us that that wouldn't happen,
and that they indeed had been awarded the jurisdic-
tion by the International.- '
i Then on this following' meeting the representa-
tives of 857 and 504 came in and told us-told me-
that they had met in Las Vegas with President
Diehl from the International; and he had awarded
the jurisdiction to 504 since they were a mixed local
and covered all the IATSE activities in the county,
on the stipulation that their agreement covered,the
same employees' job classifications as the 857 agree-
ment covered. In other words, to include c the treas-
urer in the agreement.
We agreed to do that. And 857 said: fine, it's
504's building.
Subsequently, Felling said at the trial that he did not
know whether Ogorzalek was the one who indicated
that Local 857 of IATSE was not seeking any represen-
tation rights with regard to the box office employees but,
in any. event , the statement was made in his presence and
Ogorzalek did not disagree ' with it.14 Felling. also re-
called later at the trial that he was told on that occasion
that the box office employees had been told that the
Union would be representing them, and that he was told
that there were no objections to that representation.
There were no further negotiations regarding the
terms and conditions of the collective-bargaining agree-
ment between the Employer and the Union. No agree-
ment was signed by the parties at that time.
Diane Freer, who was a witness at the trial, began
working as a box office employee' for the Employer at
the Pacific Amphitheatre on June 20, 1983.15 Previously,
she had not worked for the Employer. Freer was hired
by Bright, who she testified was a member of Local 857
14 The foregoing is based on the credited testimony of Felling , rather
than Ogorzalek 's account. However, Ogorzalek acknowledged at the trial
that, "I just made an aside to Bright that it looks like we would have to
desist to 504 in this case."
is The following is based on the"credited testimony of Freer
NED WEST INC
of IATSE Freer also is a member of Local 857 of
IATSE To her knowledge all of the persons who were
hired at the Employers box office in the week corn
mencing June 20 1983 were not members of Local 857
of IATSE She did not sign a card authorizing Local 857
of IATSE to represent her at the Pacific Amphitheatre
To her knowledge Local 857 of IATSE representatives
did not come to the Pacific Amphitheatre and meet with
the box office employees there
Freer never signed any document authorizing the
Union to represent her and she never signed any docu
ment authorizing the Employer to deduct from her
wages dues to be remitted to the Union However since
the beginning of her employment a 1 5 percent assess
ment for the Union has been deducted from her weekly
paycheck In addition each quarter Freer has written a
check made out to IATSE Local 504 for her $36 quar
terly dues to the Union She said the steward at the Pa
cific Amphitheatre had picked up her checks Freer
never received any receipt for her dues When she paid
quarterly dues of $20 to Local 857 of IATSE she did
receive dues stamps which were issued by the Interns
tional Union She also paid a working assessment of 2
percent of her gross pay when she had worked under a
Local 857 of IATSE contract She had signed an author
ization to the company for the withholding of the 2 per
cent assessment for Local 857 of IATSE when she had
worked under a Local 857 of IATSE contract
When Freer was questioned whether she was a
member of the Union Freer replied Not to my knowl
edge I have never joined Just I have been paying the
dues and they have taken the assessments out
Freer worked on a full time basis for the Employer
from June 20 1983 until around October 1 1983 Then
she resumed working at the Pacific Amphitheatre on
April 1 1984 and was still working there at the time she
testified on October 3 1984 The 1984 season was sched
uled to end at the Pacific Amphitheatre on October 31
1984
During the period of time she was not working from
around October 1 1983 to April 1 1984 she did not pay
any quarterly dues to the Union Freer continued to pay
her $20 quarterly dues to Local 857 IATSE She ex
plained at the trial Well I pay 857 anyway whether I
am working or not just to keep a member in good stand
ing During the period of time that Freer paid quarterly
dues to the Union she also paid quarterly dues to Local
857 of IATSE but not the 2 percent working assessment
to Local 857 of IATSE 16
Eshleman began working for the Employer at the Pa
cific Amphitheatre on June 21 1983 17 He worked there
until October 30 1983 Eshleman was hired in the pose
tion of first assistant treasurer by Bright who was the
treasurer at the Pacific Amphitheatre box office for the
entire time that Eshleman worked there Bright was the
person who Eshleman observed set up the schedule of
working hours each week for the box office personnel
Bright also was the one who scheduled employees over
time work
16 The foregoing is based on the credited testimony of Freer
17 The following is based on the credited testimony of Eshleman
37
When Eshleman reported to work on June 21 1983
for the Employer he observed Ogorzalek Weaver and
Bright come out of the door to Felling s office at the Pa
cific Amphitheatre When Bright got to the box office
Bright told Eshleman that the decision had been made
by management that they were going to go with 504 18
Bright also told Eshleman that he was still going to try
to see if the three first assistants could work under the
contract of Local 857 of IATSE for a period of at least
90 days as Bright had previously promised However
Bright gave no assurance to Eshleman at the time but
Bright said he was going to try Eshleman believed (at
the trial) that Christina Dinan was present but he was
not certain who was present that day
Eshleman has never signed a card authorizing the
Union to represent him as his collective bargaining rep
resentative Eshleman has never signed any document
which authorized the Employer to deduct dues or work
mg assessment fees from Eshleman s paycheck Howev
er amounts for working assessments were deducted from
his paycheck by the Employer In September 1983
Eshleman began making $36 quarterly dues payments to
the Union
Introduced into evidence as General Counsels Exhibit
5 was a two page document which contains 37 names
employment dates and termination dates if any The
document is a summary of the Employers payroll
records that contain the names of all box office personnel
employed during the period covering June 20 1983
through September 16 1984 It was stipulated that all
employment dates which appear on General Counsel s
Exhibit 5 as well as termination dates are those dates
which are given in the Employers personnel records
covering those named individuals
The parties also stipulated that no box office personnel
were employed at the Pacific Amphitheatre prior to June
20 1983 General Counsels Exhibit 5 reveals that the
first two box office employees at Pacific Amphitheatre
were Diane Freer and Kelly D Kemmerer whose em
ployment began on June 20 1983 The next three box
office employees at the Pacific Amphitheatre were
Christina Dinan Bert Eshleman and Jerry Kobm whose
employment date is June 21 1983 The other names of
employees follow thereafter on the exhibit "I
Introduced into evidence as General Counsels Exhibit
3 were copies of the Employers Deduction Register for
Deduction of Union Dues for the period from June 1,
1983 through September 16 1984 For each box office
and stagehand employee of the Employer listed on those
records the documents show the amount of the union
dues deducted from the individual employees paycheck
during the time period specified on the documents Di
vision 02 on those records refers to the theater De
partment 200 refers to box office employees Depart
1 a For the reasons discussed earlier in sec B herein regarding Eshle
man s testimony concerning his conversations with Bright I make the
same ruling here and t iroughout the decision regarding the admissibility
of testimony attributing statements to Bright As indicated previously
such testimony is uncontradicted because Bright did not testify at the
trial
19 The foregoing is based on the stipulations by the parties and also on
the documentary evidence indicated
4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment 300 refers to stagehands Department 500 refers
to another category of emloyees Division 98 Depart
ment 998 is a computer code and refers to employees
who were terminated in 1983 and whose names were
taken off the records as of December 25 1983 The De
duction Value refers to 15 percent of the gross wages
of the employees as being deducted for union dues The
Employers assistant bookkeeper Karen Turner who
was a witness at the trial said that the deductions were
made for the Union and sent to it Turner further stated
that the dues deductions for box office employees em
ployed by the Employer in 1983 commenced with their
first paycheck 20
The Respondent Union has received dues and/or as
sessment fees for the box office personnel employed by
the employer at its Pacific Amphitheatre location during
the period of time covering June 20 1983 to at least
September 16 1984 21
The General Counsel served a subpoena on the Em
ployer on September 18 1984 requesting production of
documents reflecting each and every employees authon
zation that the Employer withhold dues and/or assess
ment from their wages pursuant to the collective bar
gaining agreement No such documents have been pro
vided pursuant to that subpoena 22
To Felling s knowledge the Employer did not request
that its box office personnel sign dues deduction author
zation forms Felling did not request Bright to do so
Felling did not see any copies of such documents How
ever he testified but I would not normally get those
anyway 28
No documents as described below were produced by
the Union pursuant to a subpoena served by the General
Counsel Those documents sought by the subpoena were
copies of union authorization cards signed by employees
of the Employer employed at the Pacific Amphitheatre
during the period covering June 1 1983 thorugh Octo
ber 1 1984 which authorized the Union to represent
them as their collective bargaining representative 24
The same subpoena served by the General Counsel on
the Union requested written correspondence between the
Union and Employer covering the period from June 1
1983 through October 1 1984 relating to the union se
cunty and dues-deduction provisions of the collective
bargaining agreement No such documents were provid
ed pursuant to the subpoena 25
The same subpoena requested written correspondence
between the Union and the Employer covering the
period from June 1 1983 through August 1 1983, relat
mg to the negotiations and/or the execution of the col
lective bargaining agreement No such documents were
provided pursuant to the subpoena 26
20 The foregoing is based on the credited testimony of Turner docu
mentary evidence and a stipulation by the parties
21 The foregoing is based on a stipulation by the parties
22 The foregoing is based on a stipulation by the parties
23 The foregoing is based on the credited testimony of Felling
24 The foregoing is based on a stipulation by the parties
25 The foregoing is based on a stipulation by the parties
26 The foregoing is based on a stipulation by the parties
D The Events in July 1983
The Employer and the Umon entered into a collective
bargaining agreement which by its terms is effective
from July 1 1983 through February 28 1986 General
Counsels Exhibit 2 is a copy of that document 27
On July 1 1983 Jerry Weaver business representative
of the Union attended a meeting of the Employers box
office employees at the Pacific Amphitheatre 28 held in
Bright s office Present were Weaver Bright Eshleman
Freer Chnstma Dman and five or six other employees
Freer said that most of the full time box office employees
were there and that Bob Hanson also was present She
believed that he was in charge of health and welfare for
the Union
The meeting began at 1 30 or 2 p in and it lasted for
about 20 or 30 minutes Freer described what happened
at the meeting as follows
Q Okay Now could you please go into what
happened at this meeting?
A Jerry Weaver just-he had a copy of the con
tract And he went over the main points of it
salary and vacation pay whatever He said that it
was a three year contract And after he did the em
ployees had a few questions in regard to vacation
pay and sick leave and whatnot And that was ba
sically it
And then he said that we would be required to
join 504 if we wanted to stay working in the box
office within 30 days at which time we had a
week And if we didn t join then he would contact
Gene Felling and we would be terminated
Q You said he also went over sick pay vacation
A Um hm
Q Okay Do you recall exactly what he said
about sick pay and vacation?
A Yes There is no sick pay We would have no
vacation pay the first year And it would be a five
percent vacation pay the second year and the third
year
Q Was there anything else discussed at this meet
mg?
A That was pretty much it He had a copy of
the contract that he passed around to whoever
wanted to read it And then he picked it up And
that was all that I can remember They left
Q Do you recall anything else being stated at
this meeting?
A The only other thing I can recall is that he
also discussed the initiation fee membership fee
whatever which was $250 for the employees for
the first year That was what they were doing for
Pacific Amphitheatre And that the members in
good standing of 857 would not have to pay the
transfer fee it would just be waived
That s about all I can remember specifically
27 The foregoing is based on a stipulation by the parties
28 The following is based on the credited testimony of Freer
NED WEST INC
The account given by Eshleman lends support to
Freers testimony Eshleman said that Weaver told the
employees at the July 1 1983 meeting that the Umon
would be representing them and that the employees
would have to join the Union if they wished to continue
at the box office According to Eshleman Weaver also
said that the initiation fee would be waived for members
of Local 857 of IATSE There would be a $250 initiation
fee for other persons Weaver told them that normally
the intiation fee was $1000 Eshleman recalled that it was
pointed out at the meeting that many of the employees
were members in good standing of another local union
Weaver replied that they still had to join the Union Ac
cording to Eshleman Weaver also told them If you
don t want to work under our local you can take a
hike Weaver further told the employees that he could
write a letter to management and that the employees
could be terminated if they did not join the Union within
a specific time 29
Freer actually saw the document at the July 1 1983
meeting which she described above as being a contract
She just skimmed over the document at that time with
out reading it thoroughly She did not recall seeing any
signatures on the document at that time At the trial
Freer was shown a copy of General Counsels Exhibit 2
which is the collective bargaining agreement between
the Union and the Emloyer in this proceeding Freer tes
tified to the best of my knowledge it looks pretty
much the same one that we saw last year She acknowl
edged that there were signatures on General Counsel s
Exhibit 2 but she still did not recall seeing signatures on
the document on July 1 1983 30
Eshleman also recalled that the employees were per
mitted to see two sets of documents which Eshleman
described at the trial as being contract documents 311
He testified
Actually it was our first time that we got to see
the contract documents And they let us look at the
documents I believe they had two sets And then
when the meeting was over they picked them up
because the documents had not been completed I
believe there was typing or additions or various
thing[s] a few minor changes that had to occur So
the contracts were not left with us that day
Eshleman acknowledged at the trial that there were no
signatures on the last page of the documents at that point
in time
According to Eshleman Weaver told the persons at
the meeting on July 1 1983 that the Union had offered a
contract to the Employer because Local 857 of IATSE
had neglected to do so As far as Eshleman knew, the
document which was circulated at the meeting was the
one Weaver had offered to the Employer Eshleman said
that most of the time spent at the meeting was taken up
by questions to Weaver and answers from hint Eshleman
made suggestions to Weaver on things that could be
changed in the document Eshleman testified
99 The foregoing is based on the credited testimony of Eshleman
30 The foregoing is based on the credited testimony of Freer
3 ' The following is based on the credited testimony of Eshleman
39
Q And did you make suggestions to Mr Weaver
on things that could be changed in the document?
A Yes sir we did
Q And did Mr Weaver at that time tell you that
he warn t aware of some of these things and that
he would go back to the company?
A Yes sir He said that he had never negotiated
a box office contract before that he was sorry that
many of the items were missing He said however
he would probably have to make up for that three
years from now at the next negotiations
Q Did he tell you he was going to go back to
the company and try to make some of these adjust
ments that you were concerned about?
A I believe on one or two items he said he
would go back to management But he said that we
would probably have to wait until the contract was
renegotiated in three years I believe he said
Felling described at the trial the procedure for the
typing and the signing of the collective bargaining agree
ment as follows
The union was responsible for typing it up They
typed it up and submitted it to me There was
minor typos and things like that involved We sent
it back to them They cleaned it up and sent it back
to me I reviewed it and then sent it up to Stan Sei
den s office at the Pantages Theatre for his review
and signature
Felling did not recall at the trial the exact date that
the collective bargaining agreement was signed He did
recall that he sent the document to Seiden at the Pan
tages Theatre in Hollywood on July 11 1983 Felling
also recalled that Felling signed the document in his per
manent office at the Pacific Amphitheatre The offices
were modular buildings which were not installed until
about a week before the first performance at the Pacific
Amphitheatre which was held on July 29 1983 He said
he did not sign the collective bargaining agreement on
the opening night so July 28 1983 would have been the
latest date on which he signed the contract
At the time the collective bargaining agreement was
signed the contract terms already had been applied to
the employees of the Employer Felling explained It
was a retroactive agreement back to July 1
When the Pacific Amphitheatre held its first perform
ance on July 29 1983 the Employer had a full comple
ment of employees in the various job classifications 32
No stagehands were employed by the Employer at the
Pacific Amphitheatre prior to July 25 1983 Approxi
mately eight stagehands were employed for the first time
on that date All stagehands employed by the Employer
at the Pacific Amphitheatre from July 1983 through the
date of the trial in this proceeding have been referred to
that facility by the Union 33
32 The foregoing is based on the credited testimony of Felling
as The foregoing is based on a stipulation by the parties
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximately 21 box office personnel and 34 stage
hands were employed by the Employer at the Pacific
Amphitheatre on July 29 1983 34
Introduced into evidence as Respondent Employer s
Exhibit 2 was employee data for all the stagehands who
have been employed by the Pacific Amphitheatre dunng
the period from June 20 1983 when the Employer
opened its operations to the time of the trial on October
2 and 3 1984 As indicated previously in Statement of
the Case herein Respondent Union s Exhibit 1 is based
on the information which is contained in Respondent
Employers Exhibit 2 An examination of both of those
exhibits reveals that the earliest employment dates for
stagehands of the Employer at Pacific Amphitheatre is
July 25 1983 The stagehands whose employment date is
July 25 1983 are Ralph S Bedes Robert Breault James
L Buckholz William Butler Donald Degenhardt
Robert D Foreman Thomas M Lane and Thomas H
McClain The records show that the other stagehands
had subsequent employment dates with the Employer
Felling had expressed his belief in his pretrial affidavit
which he had given to a NLRB agent that the Union at
all times represented a majority of the employees at the
Pacific Amphitheatre At the trial he explained his
reason for that belief as follows
the summer of 1983 at least one box office employee was
a member of the Union 35
Eshleman was asked dunng cross examination at the
trial whether there were any members of the Union
working inside the box office at the Pacific Amphith
eatre dunng the summer of 1983 and any members of the
Union working as stagehands He replied affirmatively to
both questions but he did not say specifically at that
point how many of those persons were members of the
Union or when during the summer months they became
members of the Union Also his testimony does not
reveal the basis for his knowledge of other persons
union membership His testimony was
Q Mr Eshleman you were employed in the Pa
cific Amphitheatre box office during the summer of
1983 Is that correct
A Yes ma am
Q During that time to your knowledge were
there any members of Local 504 working inside the
box office?
A Yes ma am
Q To your knowledge were there any members
of Local 504 working as stage hands?
A Yes ma am
Well because the box office was only composed
of maybe four or five 857 people and there were
some 399 people maybe two or three or five of
them There were some non union people in the box
office
And most of the shows we always had between
20 and 30 stagehands employed
Felling said the stagehands were referred exclusively
to the Employer by the Union Felling acknowledged at
the trial that as of the June 9 1983 meeting between the
Employer and the Union Bright was the only person
employed in the box office at the Pacific Amphitheatre
and at that point in time Bright was considered to be in
management
At the time of the second meeting later in June 1983
between representatives of the Employer and the Union
Felling acknowledged that the box office employees had
not expressed a desire to him to be represented by the
Union He believed that the box office employees at that
time were nonunion because they had been referred to
the Employer by the college placement center Howev
er he also acknowledged that he was told that the box
office employees had been told that the Union would be
representing them and he was told that there were no
objections raised to that representation Thus Felling
said that the foregoing was one of the bases for his opm
ion that the Union represented a majority of the Em
ployer s box office employees and stagehands Felling ac
knowledged also that no stagehands had been employed
by the Employer on either June 9 1983 or on the date
of the second meeting between the Employer and the
Union in June 1983 Felling said that at some time during
34 The foregoing is based on a stipulation by the parties
Subsequently he testified about two box office em
ployees at the Pacific Amphitheatre being members of
the Union At one point (Tr 277) Eshleman said There
were two members of 504 At another (Tr 277-278)
Eshleman indicated that Bright had hired two members
of the Union Again (Tr 280) Eshleman also indicated
that there were two employees from the Union One of
those two members of the Union was Rick Hankus who
was hired on July 5 1983 by the Employer (See G C
Exh 5 )36
E The Events in August 1983
Sometime after August 1 1983 and before September
1 1983 there was a conversation in Bright s office
Present were Bright Weaver and Eshleman Weaver
did not tell Eshleman directly but Eshleman heard
Weaver state that unless Eshleman joined the Union he
would be terminated 37
On August 8 1983 there was a conversation among
Felling Bright and Eshleman in Felling s office 38
Eshleman testified
Mr Felling called us to his office And he said
Mr Eshleman I want you to understand by you
filing this complaint with the NLRB you cannot
have another IATSE replace 504 if 504 in fact goes
out He said 857 cannot come in He said You
will have to form a new union find a Teamsters
local to represent you or have no union at all
sa The foregoing is based on the credited testimony of Felling
'8 The foregoing is based on the credited testimony of Eshleman and
the documentary evidence indicated
" The foregoing is based on the credited testimony of Eshleman This
event is not alleged by the General Counsel to be an unfair labor prac
rice
38 The following is based on the credited testimony of Eshleman
NED WEST INC
I then brought up the matter of the 1 5 percent
dues that had been deducted from our payroll
checks which I told him I thought were illegal
since we had not signed a dues check off list
And at that time he reached in his desk drawer
And he pulled out some papers And I believe that
the papers were the 504 contract And he read to
Mr Bright and myself from that contract And he
said If you do not allow these dues to be taken
out of your paycheck I must terminate you within
seen days
Actually the complaint referred to above was a pe
tition which Eshleman had filed with NLRB but later
the petition was dismissed Eshleman acknowledged at
the trial that he did not look at the document which
Felling took out of his desk drawer
Introduced into evidence as General Counsels Exhibit
6 was a copy of a two page document on the Employer s
letterhead stationery It is dated August 3 1983 on the
right side at the top of the first page The document
states We the undersigned of Pacific Amphitheatre do
not wish to be represented by International Alliance of
Theatrical Stage Employees Local 504 Thereafter are
headings designated as name and date There are 18
signatures under the name column and 8/3/83 ap
pears under the date column opposite each signature
on the two pages Eshleman signed the document on that
date and he saw each person whose signature appears on
the document sign the document on that date at the Pa
cific Amphitheatre Eshleman said at the trial that many
of those Pacific Amphitheatre box office employees who
signed the document were members of Local 857 of
IATSE Eshleman submitted General Counsels Exhibit
6 and he also submitted signed authorization cards desig
nating Local 857 of IATSE as their collective bargaining
representative to NLRB All of the box office employees
who signed General Counsels Exhibit 6 also signed au
thonzation cards for Local 857 of IATSE At the trial
Eshleman said those authorization cards had been re
turned to him by NLRB The cards were not offered
into evidence at the trial 99
During cross examination Eshleman acknowledged
that not all of the Employers unit personnel who were
employed on August 3 1983 at the Pacific Amphith
eatre had signed General Counsels Exhibit 6 Among
those who he acknowledged at the trial did not sign
were Rick Hankus who was hired on July 5 1983
Diane Henderson who was hired on June 24 1983 and
who was terminated on October 30 1983 Kelly Kem
merer who was hired on June 20 1983 and John Mid
dleton who was hired on June 28 1983 40
The first time Eshleman saw a copy of the collective
bargaining agreement with signatures on it was at a
NLRB hearing on August 30 1983 41
99 The foregoing is based on the credited testimony of Eshleman and
the documentary evidence indicated
40 The foregoing is based on the credited testimony of Eshleman and
G C Exh 5
41 The foregoing is based on the credited testimony of Eshleman
41
F The Events in September 1983
Eshleman estimated that approximately 35 persons at
tended a meeting held around September 1 1983 at the
Pacific Amphitheatre He said the meeting was attended
by the entire box office staff who were working on the
shift that day and others who were called in In addition
he said Mr and Mrs Lawson Blanchard Weaver Fell
ing and Felling s secretary were present
The meeting pertained to a discussion of a health and
welfare plan In addition Eshleman recalled that Weaver
told the group that he was going to enforce the contract
Eshleman further testified He said that he would write
a letter to Gene Felling and that he would terminate
anyone that failed to join the Local 42
Eshleman said he began paying quarterly dues to the
Union in September 1983 after the meeting described
above Eshleman stated at the trial that he was not a
member of the Union
About September 9 1983 Weaver signed a letter ad
dressed to Bright A copy of that letter was introduced
into evidence as General Counsels Exhibit 4 43 In part
the letter states
Pursuant to our telephone conversation on Sep 8
1983 the following information you requested is
listed below
I Normal initiation fees and/or transfer fees are
$100000
2 Dues per quarter are as of this date $3600
3 Assessment fees are 1 5% of gross salaries
As you have been informed we have waived the
full initiation and/or transfer fee and set a $250 00
fee for this season only This was done to help the
people working in the box office However next
season it will be back to the full $1 000 00
Please remember that I must have a complete list
of employees both full time and part time This list
must have their address and telephone numbers
Introduced into evidence as General Counsels Exhibit
7 was a copy of a letter dated September 13 1983 from
Weaver to Felling In part it states
The Treasurer and Ticket Sellers have not ful
filled their obligations under the provision of Arti
cle II paragraphs B 1 & 2
The above mentioned section in our contract pro
vided that these personnel will be discharged within
seven (7) days upon written notice
I wish to envoke this section of our contract
After Felling received a copy of General Counsel s
Exhibit 7 Felling spoke with Bright regarding it within a
day or so of its receipt Felling testified that he told
Bright that the clause was in our contract and that the
42 The foregoing is based on the credited testimony of Eshleman
Freer did not relate the foregoing statement by Weaver in her account,
but I found Eshleman s testimony on this point to be credible In this
connection G C Exh 7 shows that Weaver did what he said he would
do
43 The foregoing is based on a stipulation by the parties
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would have to pay the dues or they would
have to be terminated as per the contract 44
G Conclusions Regarding the Alleged Unfair Labor
Practices
In the General Counsels consolidated complaint it is
alleged in paragraphs 8 9 10 and 11 that the Employer
violated Section 8(a)(1) (2) and (3) of the Act and it is
alleged in paragraphs 8 9 10 and 12 that the Union vio
lated Section 8(b)(1)(A) and (2) of the Act Those allega
tions are
8 (a) On or about June 9 1983 Respondent Em
ployer recognized Respondent Union and agreed to
enter into a collective bargaining agreement with
Respondent Union which agreement was executed
by Respondent Employer sometime between July
11 and July 29 1983 Said collective bargaining
agreement was effective by its terms from July 1
1983 through February 28 1986 covering wages
rates of pay hours of employment in a collective
bargaining unit described above in paragraph 7
(b) [The recognition clause and the union secure
ty clauses of art II of the collective bargaining
agreement are quoted in this allegation ]
9 On or about June 9 1983 Respondent Em
ployer and Respondent Union applied and thereaf
ter have maintained and enforced the collective
bargaining agreement described above in paragraph
8 to the employees in the unit described above in
paragraph 7
10 Respondents engaged in the conduct de
scribed in paragraph 9 above notwithstanding the
fact that at the time Respondent Union did not rep
resent an uncoerced majority of the employees m
the unit described in paragraph 7 above
11 By engaging in the conduct described above
in paragraphs 9 and 10 above Respondent Employ
er has encouraged its employees to join support or
assist Respondent Union
12 On or about June 9 1983 Respondent Union
received aid, assistance and support from Respond
ent Employer by agreeing to accept recognition as
the exclusive bargaining representative of Respond
ent Employers employees notwithstanding that Re
spondent Union did not lawfully represent an un
coerced majority of the employees in the unit de
scribed in paragraph 7 above
Based on the credited findings of fact set forth previ
ously I conclude that on June 9 1983 the Employer
recognized the Union as the exclusive collective bargain
ing representative of the box office employees and stage
hands who were to be employed by the Employer at its
new facility the Pacific Amphitheatre The Union on
June 9 1983 accepted such recognition as the exclusive
collective bargaining representative of employees who at
that time had not yet been hired Thus both Respond
ents acted prior to the time that any employees were em
ployed in the bargaining unit Because there were no em
44 The foregoing is based on the testimony of Felting
ployees in the bargaining unit the Union was not at that
time the collective bargaining representative of the ma
jonty of the unit employees
In its opinion in Ladies Garment Workers (Bernhard
Altmann Texas Corp) v NLRB 366 U S 731 738 (1961)
the Supreme Court held
Section 8(a)(2) of the Act makes it an unfair labor
practice for an employer to contribute sup
port to a labor organization The law has long
been settled that a grant of exclusive recognition to
a minority union constitutes unlawful support in
violation of that section, because the union so fa
vored is given marked advantage over any other in
securing the adherence of employees Labor Board
v Pennsylvania Greyhound Lines 303 U S 261 267
In the Taft Hartley Law Congress added Section
8(b)(1)(A) to the Wagner Act prohibiting as the
Court of Appeals held unions from invading the
rights of employees under Section 7 in a fashion
comparable to the activities of employers prohibited
under Section 8(a)(1) 208 F 2d at 620 It was the
intent of Congress to impose upon unions the same
restrictions which the Wagner Act imposed on em
ployers with respect to violations of employee
rights
The Supreme Court further held in that case at 739
The act made unlawful by Section 8(a)(2) is em
ployer support of a minority union Here that sup
port is an accomplished fact More need not be
shown for even if mistakenly the employees
rights have been invaded It follows that prohibited
conduct cannot be excused by a showing of good
faith
Thus while I have considered the Employers argu
ment that it was acting in good faith at all times and
that it was seeking to avoid a jurisdictional dispute be
tween labor organizations I conclude that such an argu
ment does not have merit in these circumstances where
the Employer has extended recognition to a collective
bargaining representative which did not represent a ma
jonty of unit employees at the time As indicated in the
Supreme Court s opinion quoted above at 738 a grant of
exclusive recognition to a minority union constitutes un
lawful support in violation of that section [8(a)(2)] Also
as indicated in the Supreme Court s opinion quoted
above at 738 with regard to Section 8(b)(1)(A) It was
the intent of Congress to impose upon unions the same
restrictions which the Wagner Act imposed on employ
ers with respect to violations of employee rights Ac
cordmgly I find that the Employer and the Union vio
lated on June 9 1983, Section 8(a)(2) and Section
8(b)(1)(A) of the Act respectively in such circum
stances
I have not discussed cases which apply the provisions
of Section 8(f) of the Act because the Employer is not an
employer primarily engaged in the building and con
struction industry
NED WEST INC
Without repeating here all of the findings of fact I
further conclude that the evidence shows that the Em
ployer and the Union on June 9 1983 entered into nego
tiations for a collective bargaining agreement which
among other things would contain provisions regarding
the wages hours and working conditions of unit em
ployees As indicated above the Union was not the col
lective bargaining representative of a majority of the unit
employees at that time I also conclude that the Employ
er and the Union on June 9 1983 reached a verbal
agreement for a collective bargaining agreement cover
ing the employees to be employed in the bargaining unit
The evidence shows that both parties compared their
bargaining notes and made sure that each side had the
same thing Wage rates for the box office employees
were agreed upon in the sense that both parties agreed
that the wage rates would be the same as those wage
rates already in effect with the city of Anaheim Thus I
conclude that the fact that the parties did not recall the
exact dollars and cents figures at the negotiations on
June 9 1983 does not negate the fact that agreement
was reached to pay the same wage rates paid by the city
of Anaheim
The unit placement of the treasurer was not raised and
was not an issue on June 9 1983 Therefore his unit
placement was not an unresolved issue left to be deter
mined later Instead it was not an issue at the time of the
negotiations on June 9 1983 Subsequently the parties
did readily agree on his unit placement when the ques
tion first arose but I construe that subsequent act as a
modification of the verbal agreement already reached by
the parties on June 9 1983 Nothing has been shown
here which would prevent both parties to the agreement
from jointly agreeing to change or modify their own
agreement The fact that both parties agreed to make a
change in their earlier agreement does not wipe out the
fact that an earlier agreement had been reached There
fore I conclude that all that remained on June 9 1983
with regard to the parties collective bargaining agree
ment were typing a document and signing it Such func
tions as typing proofreading signing and printing of
agreements have been described as being ministerial
acts which do not allow for personal discretion
I have considered Felling s testimony that an agree
ment reached by the parties on June 9 1983 would be
subject to a satisfactory written document being pro
duced Absent any further explanation by him on that
point, I construe his testimony to mean that the written
contract which was to be produced by the Union
would have to contain the terms and provisions of the
verbal agreement reached by the parties on June 9 1983
In other words if the written agreement vaned from the
verbal agreement negotiated on June 9 1983 the written
agreement would not be satisfactory That seems to be a
logical interpretation of Felling s testimony since both
parties compared bargaining notes on June 9 1983 to
make sure they had the same thing
Based on the findings of fact set forth previously I
also conclude that the evidence shows that the verbal
agreement reached by the parties on June 9 1983 as
modified later with regard to the unit placement of the
treasurer was prepared in written form and signed by
43
the parties The terms and provisions of the collective
bargaining agreement already had been in effect prior to
the signing of the contract which was introduced into
evidence as General Counsels Exhibit 2 at the trial in
this proceeding The document itself provides for effec
tive dates from July 1 1983 through February 28 1986
Based on Felling s testimony I conclude that General
Counsel s Exhibit 2 was signed sometime during the
period of about a week before the first performance at
the Pacific Amphitheatre and the day before the first
performance The evidence shows that the first perform
ance was held on July 29 1983 Felling was certain at
the trial that he did not sign the collective bargaining
agreement on opening night so I conclude based on his
testimony that July 28 1983 was the latest date on
which he signed the document
I conclude that the collective bargaining agreement
between the Respondent Employer and the Respondent
Union contains both union security and exclusive referral
provisions Article II paragraph B I provides in part
Every Employee subject to this agreement shall become
obligated to pay periodic dues to the Union Article II
paragraph B 2 provides in part
If an Employee who is obligated to make periodic
payments to the Union as required above fails to
do so the Company shall discharge such
Employee if he/she has not remedied his default 45
The Union in its posttnal brief raises an interesting
point regarding article II paragraph B 2 The next sen
tence following the one quoted in part above states
Provided however that nothing contained herein shall
require the Company to discharge or otherwise discnmi
nate in any way against any Employee nor be interpreted
as requiring either party to take any action or refrain
from taking any action contrary to law On their face
the two sentences appear to be inconsistent One sen
tence indicates that the Company shall discharge an em
ployee who is in default on his union dues obligations
under the conditions described in that sentence On the
other hand the second sentence indicates that nothing in
the contract requires the Company to discharge or other
wise discriminate against an employee However the
statements regarding union security obligations attributed
to both Felling and to Weaver who were present at the
contract negotiations reveal there was no ambiguity or
inconsistency regarding their understanding of the union
security provisions These statements already are con
tamed in the findings of fact and will be discussed later
herein with regard to the allegations in paragraphs 13
and 14 of the General Counsels consolidated complaint
Also Weaver s letter dated September 13 1983 to Fell
ing which was introduced into evidence as General
Counsels Exhibit 7 shows no ambiguity about the
union security provisions of the collective bargaining
agreement Weaver wrote in part The above men
tioned section in our contract provides that those person
nel will be discharged within seven (7) days upon writ
15 As indicated only portions of the contract are quoted here See
G C Exh 2 for the full text
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ten notice In any event even if there is an ambiguity
or an inconsistency in the contract language regarding
union security provisions the burden to interpret the
contract language should not fall on the employees who
would be acting at their peril if their interpretation was
incorrect Instead the fault if any should he with the
drafters of the agreement
Another point raised by the Union in its posttnal brief
is the contention that the hiring hall or reference proce
dure under the contract terms is not an exclusive one
The hiring hall or referral system is provided for in arti
cle IV paragraphs A and B However in article I it is
stated in part That work will be performed primarily
by people from the Union in coordination with the per
former s technical and production crew The Union
points to the word primarily in that sentence in article
I However the next sentence in article I furnishes an ex
planation by providing an example It states
Where appropriate and agreed certain work may
be performed on a man for man basis between the
Union members and the performers crew for ex
ample during a performance the sound man from
the Union could be used as a backup to the per
former s Soundman/Mixer
With the example given in mind I conclude that the
word primarily in article I does not rule out the exclu
live referral system of article IV but instead article I
recognizes the fact that a performer may desire to have
the performers own crew do certain work during the
performer s show
No evidence was presented in this proceeding that any
employee of the Employer at the Pacific Amphitheatre
signed any document authorizing the Union to represent
that employee for collective bargaining purposes and no
evidence was presented that any such employe., signed
any document authorizing the Employer to deduct union
dues or assessments from the employees wages Never
theless the evidence shows that the Employer has de
ducted a 1 5 percent assessment from the gross pay of
employees in the unit covered by the collective bargain
ing agreement and the Employer has transmitted such
funds to the Union without having dues deduction au
thonzations from such employees and notwithstanding
the fact that the Union did not represent an uncoerced
majority of the Employers employees In addition the
evidence showed that employees of the Employer have
paid to the Union quarterly dues in accordance with the
union security clause
In its decisions in Bobs Big Boy Family Restaurants
264 NLRB 432 434 (1982) the Board held
By entering into a contract with the Association
which contained a union security provision and by
enforcing that union security provision the Em
ployer violated Section 8(a)(1) (2) and (3) of the
Act
By entering into the 1980-83 contract containing a
union security provision the Association violated
Section 8(b)(2) of the Act Such conduct also con
stitutes an independent violation of Section
8(b)(1)(A) since the Association was not the exclu
sive bargaining representative of employees
In this connection see the Board s decision in R J E
Leasing Corp 262 NLRB 373 (1982) and Carbonex Coal
Co 262 NLRB 1306 (1982)
In view of the foregoing conclusions and discussion I
further conclude that a preponderance of the evidence
establishes that the Employer has engaged in unfair labor
practices within the meaning of Section 8(a)(1) (2) and
(3) of the Act as alleged in the General Counsels con
solidated complaint and that the Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act as alleged in the General
Counsels consolidated complaint
I have given consideration to the contention of the
Employer and the Umon that the Union subsequently
achieved majority status in the unit prior to the actual
signing of the written contract In its opinion in Ladies
Garment Workers (Bernhard Altmann Texas Corp) supra
at 736 the Supreme Court held
At the outset we reject as without relevance to
our decision the fact that as of the execution date
of the formal agreement on October 10 petitioner
represented a majority of the employees As the
Court of Appeals indicated the recognition of the
minority union on August 30 1957 was a fait ac
compli depraving the majority of the employees of
their guaranteed right to choose their own repre
sentative 280 F 2d at 621 It is therefore of no
consequence that petitioner may have acquired by
October 10 the necessary majority if during the in
tenor it was acting unlawfully Indeed such acqui
sition of majority status itself might indicate that the
recognition secured by the August 30 agreement of
forded petitioner a deceptive cloak of authority
with which to persuasively elicit additional employ
ee support
I conclude that the Supreme court s holding is apphca
ble here Because I have found that the Employer and
the Union have engaged in unfair labor practices corn
mencing on June 9 1983 as indicated above I conclude
that it would not be a valid defense to show that the
Union subsequently achieved majority status during the
week before July 29 1983 in these circumstances
Moreover I further conclude that the evidence does
not prove that the Union had achieved majority status at
any time The fact that a person is referred from the
Union s dispatching office to the Employer for consider
ation for employment at the Pacific Amphitheatre does
not prove that the person being referred is a member of
the Union and it does not prove that the person has au
thonzed the Union as his collective bargaining represent
ative To hold otherwise would require an assumption to
be made that the Union has operated a members only
hiring hall and referral system or it would require an as
sumption to be made that all persons being referred to
the Employer voluntarily had become union members or
had authorized the Union to represent them for collec
tive bargaining purposes Neither assumption is warrant
NED WEST INC
ed to be made based on the facts which were presented
in this case
The collective bargaining agreement between the
Union and the Employer specifically provides that the
Union will refer stagehands and other personnel covered
by the contract on recognized factors such as ability for
example and without discrimination based upon the
Union or Non union status of the registrants (See art
IV par B G C Exh 2)
In addition to the testimony of Eshleman and Freer re
garding their own lack of membership in the Union
there is Eshleman s testimony regarding General Coun
sel s Exhibit 6 that there were just two members of the
Union at that time I do not consider Eshleman s testimo
ny regarding the two members to be dispositive on the
number of the Union s members yet there was no proof
to the contrary
In summary I conclude that proof that persons were
referred or dispatched by the Union to employment with
the Employer is not the same as proof that those persons
were union members or proof that those persons had au
thonzed the Union to be their collective bargaining rep
resentative at that time
I have also given consideration to the Employers es
toppel contention that would preclude the Charging
Party from pursuing the unfair labor practice charges be
cause he had asked Weaver to go back to the Employer
and get certain concessions in the contract (See the Em
ployer s closing argument at Tr 311-312) In the view of
the Employer Eshleman was asking the Union to negoti
ate on Eshleman s behalf and therefore he should be es
topped from pursuing this action
At the time Eshleman made the suggestions to Weaver
on July 1 1983 recognition had already been extended
by the Employer to the Union and a verbal agreement
reached In addition Eshleman and the other employees
were told that they were required to join the Union
within 30 days or be terminated from employment Thus
the situation at that point in time was one of a fait ac
compli presented to Eshleman In these circumstaces I
do not construe Eshleman s suggestions for changes in
the contract as a ratification or acquiescence in what had
already occurred Eshleman s subsequent actions as set
forth in the findings of fact show tha Eshleman was not
seeking to have the Union negotiate on his behalf In any
event in deciding whether or not unfair labor practices
have occurred I should look to the public rights set
forth in the Act as distinguished from private rights I
conclude that the estoppel contention with regard to the
Charging Party lacks merit in these circumstances de
scribed above
In paragraph 13 of the General Counsels consolidated
complaint it is alleged
13 On or about August 8 1983 at the Pacific
Amphitheatre Respondent Employer acting
through Felling rendered aid assistance and sup
port to Respondent Union by telling employees that
Respondent Employer would terminate employees
within 7 days if the employees did not agree to
automatic payroll deductions for payment of certain
assessments to Respondent Union, in compliance
45
with the collective bargaining agreement described
in paragraph 8 above
Based on the credited findings of fact I conclude that
Felling told Eshleman about August 8 1983 that Eshle
man would be terminated from employment within 7
days if Eshleman did not permit the Employer to with
hold union assessments from Eshleman s wages as pro
vided for in the collective bargaining agreement between
the Employer and the Union Therefore I conclude that
a preponderance of the evidence establishes the unfair
labor practices alleged in paragraph 13 of the General
Counsels consolidated complaint to be in violation of
Section 8(a)(1) and (2) of the Act
In paragraphs 14(a) and (b) of the General Counsel s
consolidated complaint it is alleged
14 On or about the dates listed below at the Pa
cific Amphitheatre Respondent Union acting
through Weaver restrained and coerced Respond
ent Employers employees in the exercise of the
rights guaranteed in Section 7 of the Act by
(a) On or about July 1 1983 telling employees at
the Pacific Amphitheatre that the Union had a con
tract with Respondent Employer and that the em
ployees had to join Respondent Union or else he
would request that Respondent Employer fire the
employees
(b) On or about September 1 1983 telling em
ployees at the Pacific Amphitheatre that the Union
had a contract with Respondent Employer and that
the employees had to join Respondent Union or else
he would request that Respondent Employer fire
the employees
Based on the credited findings of fact I conclude that
Weaver told employees on July 1 1983 that the Union
had a contract with the Employer and that employees
would be required to join the Union within 30 days if
employees wanted to continue working at the box office,
and if employees did not join the Union the Union
would contact the Employer and the employees would
be terminated
I also conclude that the evidence shows that Weaver
told employees on September 1 1983 that the Union
was going to enforce the contract and that the Union
would write a letter to the Employer who would termi
nate anyone who failed to join the Union Therefore I
conclude that a preponderance of the evidence estab
lishes the unfair labor practices alleged in paragraphs
14(a) and (b) of the General Counsels consolidated coin
plaint to be in violation of Section 8(b)(1)(A) of the Act
Paragraphs 15 through 23 of the General Counsel s
consolidated complaint are essentially conclusionary alle
gations pertaining to the alleged unfair labor practices
As such those allegations do not require further discus
sion in view of the findings and conclusions already
stated herein
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 The Respondent Employer has been an employer
engaged in comerce at all times material herein within
the meaning of Section 2(6) and (7) of the Act
2 The Respondent Union has been a labor organiza
tion at all times material herein within the meaning of
Section 2(5) of the Act
3 The Respondent Employer has engaged in unfair
labor practices within the meaning of Section 8(a)(1) (2)
and (3) of the Act by
Interfering with restraining and coercing em
ployees in the exercise of the rights guaranteed in
Section 7 of the Act rendering aid assistance and
support to the Respondent Union which did not
represent an uncoerced majority of the Respondent
Employer s employees and discriminating in regard
to the hire or tenure of employment and the terms
or conditions of employment of its employees so as
to encourage membership in the Respondent Union
by
(a) Recognizing on June 9 1983 the Respondent
Union as the collective bargaining representative of
certain employees of the Respondent Employer
(b) Negotiating and agreeing on June 9 1983 to
a collective bargaining agreement with the Re
spondent Union concerning the wages hours work
ing conditions and other terms and conditions of
employment of certain employees of the Respond
ent Employer which collective bargaining agree
ment includes union security provisions and exclu
sive referral system provisions
(c) Thereafter applying maintaining and enforc
ing the provisions of the collective bargaining
agreement notwithstanding the fact that the Re
spondent Union did not represent an uncoerced ma
jonty of the Respondent Employers employees
4 The Respondent Employer has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(2) of the Act by
Inter""enng with restraining and coercing em
ployees in the exercise of the rights guaranteed in
Section 7 of the Act and rendering aid assistance
and support to the Respondent Union which did
not represent an uncoerced majority of the Re
spondent Employers employees by
Telling an employee on or about August 8 1983
that he would be terminated from employment
within 7 days if the employee did not permit the
Respondent employer to withhold union assess
ments from the employees wages as provided for
in the collective bargaining agreement between the
Respondent Employer and the Respondent Union
5 The Respondent Union has engaged in unfair labor
practices within the meaning of Section 8 (b)(1)(A) and
(2) of the Act by
Restraining and coercing employees in the exer
cise of the rights guaranteed in Section 7 of the
Act and causing or attempting to cause the Re
spondent Employer to discriminate against employ
ees in violation of Section 8(a)(3) of the Act by
(a) Receiving aid assistance and support from the
Respondent Employer by agreeing on June 9 1983
to accept recognition as the exclusive collective
bargaining representative of certain employees of
the Respondent Employer notwithstanding the fact
that the Respondent Union did not represent an un
coerced majority of the Respondent Employer s
employees
(b) Negotiating and agreeing on June 9 1983 to
a collective bargaining agreement with the Re
spondent Employer concerning the wages hours
working conditions and other terms and conditions
of employment of certain employees of the Re
spondent Employer which collective bargaining
agreement includes union security provisions and
exclusive referral provisions
(c) Thereafter applying maintaining and enforc
mg the provisions of the collective bargaining
agreement notwithstanding the fact that the Re
spondent Union did not represent an uncoerced ma
Monty of the Respondent Employers employees
6 The Respondent Union has engaged in unfair labor
practices within the meaning of Section 8 (b)(1)(A) of the
Act by
Restraining and coercing employees in the exer
cise of the rights guaranteed in Section 7 of the Act
by
(a) Telling employees of the Respondent Em
ployer on or about July 1 1983 that the Respond
ent Union had a contract with the Respondent Em
ployer and that the employees would be required
to join the Respondent Union within 30 days if the
employees wanted to continue working at the Re
spondent Employers box office and if the employ
ees did not join the Respondent Union the Re
spondent Union would contact the Respondent Em
ployer and the employees would be terminated
(b) Telling employees of the Respondent Em
ployer on or about September 1 1983 that the Re
spondent Union was going to enforce the contract
and that the Respondent Union would write a letter
to the Respondent Employer who would terminate
anyone who failed to join the Respondent Union
7 The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act
THE REMEDY
Since I have found that the Respondent Employer has
engaged in unfair labor practices within meaning of Sec
tion 8(a)(1) (2) and (3) of the Act and since I have
found that the Respondent Union has engaged in unfair
labor practices within the meaning of Section 8 (b)(1)(A)
and (2) of the Act I shall recommend to the Board that
both the Respondent Employer and the Respondent
Union be ordered to cease and desist from engaging in
NED WEST INC
such unfair labor practices and that both take certain of
firmative action in order to effectuate the policies of the
Act
Among the affirmative acts which are necessary to
remedy the unfair labor practices found herein is an
order that the employees be reimbursed with appropn
ate interest for the union dues fees and assessments
which the employees paid as a result of both Respond
ents unfair labor practices
In her closing argument the attorney for the Respond
ent Employer requests that the Respondent Employer
not be held liable if a violation is found because the Re
spondent Employer sent the money it withheld from the
employees paychecks to the Respondent Union (See Tr
313-314) In view of the nature of the unfair labor prat
tices by both the Respondent Employer and the Re
spondent Union I conclude that joint and several habil
ity is an appropriate remedy here In this connection I
have considered the fact that the Respondent Employer
recognized the Respondent Union as the collective bar
gaining representative of its employees when the Re
spondent Union was not the representative of an un
coerced majority of its employees negotiated and agreed
to a collective bargaining agreement with the Respond
ent Union which contained a union security clause told
an employee that he would be terminated if he did not
permit the Respondent Employer to withhold union as
sessments from his wages as provided in that collective
bargaining agreement and withheld union assessments
from employees paychecks pursuant to that collective
bargaining agreement without any dues deduction au
thorization from the employees In these circumstances I
find that the Respondent Employer must share responsi
bility and share liability with the Respondent Union in
order to remedy the unfair labor practices Rainey Secun
ty Agency 274 NLRB 269 fn 3 (1985) Hermet Inc 222
NLRB 29 fn 1 (1976)
Interest on such money to be reimbur, ed to the em
ployees for their union dues fees and assessments paid
as a result of the unfair labor practices found hereir is to
be computed in accordance with the Board s decisions in
Isis Plumbing Co 138 NLRB 716 (1962) and Florida
Steel Corp 231 NLRB 651 (1977)
In her closing argument the General Counsel points to
the seasonal nature of the Respondent Employers bust
ness and she requests that the remedial notices be mailed
by the Respondent Employer and by the Respondent
Union in the event that the employees are not currently
employed by the Respondent Employer (See Tr 308) I
conclude that the General Counsels request has merit in
these circumstances because the record indicates that the
Respondent Employers facility is an outdoor theater
which is closed during the winter months
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed46
4e If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
ORDER
47
I The Respondent Employer James Nederlander
d/b/a Ned West Inc d/b/a Pacific Amphitheatre
Costa Mesa California its officers agents successors
and assigns shall
I Cease and desist from
(a) Interfering with restraining and coercing employ
ees in the exercise of the rights guaranteed in Section 7
of the Act rendering aid assistance and support to the
Respondent Union which did not represent an un
coerced majority of the Respondent Employers employ
ees and discriminating in regard to the hire or tenure of
employment and the terms or conditions of employment
of its employees so as to encourage membership in the
Respondent Union by
(1) Recognizing the Respondent Union as the
collective bargaining representative of certain em
ployees of the Respondent Employer
(2) Negotiating and agreeing to a collective bar
gaining agreement with the Respondent Union con
cerning the wages hours working conditions and
other terms and conditions of employment of cer
tam employees of the Respondent Employer which
collective bargaining agreement includes union se
cunty provisions and exclusive referral system pro
visions
(3) Thereafter applying maintaining and enforc
mg the provisions of the collective bargaining
agreement notwithstanding the fact that the Re
spondent Union did represent an uncoerced mason
ty of the Respondent Employers employees
(b) Interfering with restraining and coercing employ
ees in the exercise of the rights guaranteed in Section 7
of the Act and rendering aid assistance and support to
the Respondent Union which did not represent an un
coerced majority of the Respondent Employers employ
ees by
Telling an employee that he would be terminated
from employment within 7 days if the employee
did not permit the Respondent Employer to with
hold union assessments from the employees wages
as provided for in the collective bargaining agree
ment between the Respondent Employer and the
Respondent Union
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Withdraw and withhold recognition from the Re
spondent Union as the collective bargaining represents
tive of the Respondent Employers employees in the unit
described below unless and until such time as the Re
spondent Union has been duly certified by the NLRB as
the exclusive collective bargaining representative of such
employees The unit is described as
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All master carpenters master propertymen
master electricians master soundmen master ward
robe persons front light operators budge light op
erators visual effect operators sound console oper
ators tape deck operators turntable and winch op
erators traveler operators chemical effect opera
tors floor sound men pyrotechnic operators fork
lift operators riggers truck loaders or unloaders
treasurers ticket sellers employed by the Respond
ent Employer at the Pacific Amphitheatre exclud
ing all other employees guards and supervisors as
defined in the Act
(b) Cease giving any effect to the terms and conditions
of the collective bargaining agreement between the Re
spondent Employer and the Respondent Union with
regard to the employees in the unit described above and
specifically cease deducting union assessments from em
ployees wages in the unit described above
(c) Jointly and severally with the Respondent Union
reimburse the employees of the Respondent Employer
for the union dues fees and assessments which they paid
as a result of the unfair labor practices found herein In
terest on such money is to be computed in accordance
with the remedy section of this decision and such inter
est paid to the employees
(d) Preserve and on request make available to agents
of NLRB for examination and copying all of the
records which are needed to analyze and determine the
amount of money due under the terms of this Order
(e) Post at its facility at the Pacific Amphitheatre in
Costa Mesa California copies of the attached notice
marked Appendix 47 Copies of the notice on forms
provided by the Regional Director for Region 21 after
being signed by the Respondents authorized representa
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered defaced or covered by any other mater
al
(f) Post at the same places and in the same manner as
described in the above paragraph copies of Appendix
B as soon as such copies have been signed by a repre
sentative of the Respondent Union and forwarded to the
Respondent Employer by the Regional Director for
Region 21 of the Board
(g) Furnish to the Regional Director for Region 21 of
the Board signed copies of the notice marked Appendix
A in a sufficient number to be posted by the Respond
ent Union in all places where notices to its members are
customarily posted
(h) In the event that the Respondent Employers Pacif
is Amphitheatre is closed at the time the Respondent
Employer commences compliance with the terms of this
Order such as for example being closed for the winter
*' If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
season then the Respondent Employer and the Respond
ent Union jointly shall mail a copy of Appendix A and
a copy of Appendix B to the last known address of
each unit employee who was employed at any time
during the last payroll period before the Respondent
Employers Pacific Amphitheatre closed
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
II The Respondent Union International Alliance of
Theatrical Stage Employees and Moving Picture Ma
chore Operators of the United States and Canada Local
504 Anaheim California its officers agents and repre
sentatives shall
1 Cease and desist from
(a) Restraining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act and
causing or attempting to cause the Respondent Employer
to discriminate against employees in violation of Section
8(a)(3) of the Act by
(1) Receiving aid assistance and support from
the Respondent Employer by agreeing on June 9
1983 to accept recognition as the exclusive collec
tive bargaining representative of certain employees
of the Respondent Employer notwithstanding the
fact that the Respondent Union did not represent an
uncoerced majority of the Respondent Employer s
employees
(2) Negotiating and agreeing to a collective bar
gaining agreement with the Respondent Employer
concerning the wages hours working conditions
and other terms and conditions of employment of
certain employees of the Respondent Employer
which collective bargaining agreement includes
union security provisions and exclusive referral
system provisions
(3) Thereafter applying maintaining and enforc
ing the provisions of the collective bargaining
agreement notwithstanding the fact that the Re
spondent Union did not represent an uncoerced ma
jonty of the Respondent Employers employees
(b) Restraining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act by
(1) Telling employees of the Respondent Em
ployer that the Respondent Union had a contract
with the Respondent Employer and that the em
ployees would be required to join the Respondent
Union within 30 days if the employees wanted to
continue working at the Respondent Employer s
box office and if the employees did not join the
Respondent Union the Respondent Union would
contact the Respondent Employer and the employ
ees would be terminated
(2) Telling employees of the Respondent Em
ployer that the Respondent Union was going to en
force the contract and that the Respondent Union
would write a letter to the Respondent Employer
who would terminate anyone who failed to join the
Respondent Union
NED WEST INC
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Cease acting as the exclusive collective bargaining
representative of the Respondent Employers employees
in the unit described below unless and until such time as
the Respondent Union has been certified by the NLRB
as the exclusive collective bargaining representative of
such employees The unit is described as
All master carpenters master propertymen
master electricians master soundmen master ward
robe persons front light operators bridge light op
erators visual effect operators sound console oper
ators tape deck operators turntable and winch op
erators traveler operators chemical effect opera
tors floor sound men pyrotechnic operators fork
lift operators riggers truck loaders or unloaders
treasurers ticket sellers employed by the Respond
ent Employer at the Pacific Amphitheatre exclud
ing all other employees guards and supervisors as
defined in the Act
(b) Cease giving any effect to the terms and conditions
of the collective bargaining agreement between the Re
spondent Union and the Respondent Employer with
regard to the employees in the unit described above
(c) Jointly and severally with the Respondent Employ
er reimburse the employees of the Respondent Employer
for the union dues fees and assessments which they paid
as a result of the unfair labor practices found herein In
terest on such money is to be computed in accordance
with the remedy section of this decision and such inter
est paid to the employees
(d) Preserve and on request make available to agents
of NLRB for examination and copying all of the
records which are needed to analyze and determine the
amount of money due under the terms of this Order
(e) Post at its business office in Anaheim, California
and its meeting halls copies of the attached notice
marked Appendix 48 Copies of the notice on forms
provided by the Regional Director for Region 21 after
being signed by the Respondent Union s authorized rep
resentative shall be posted by the Respondent Union im
mediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to members are customarily posted Rea
sonable steps shall be taken by the Respondent Union to
ensure that the notices are not altered defaced or cov
ered by any other material
(f) Post at the same places and in the same manner as
described in the above paragraph copies of Appendix
A as soon as such copies have been signed by a repre
sentative of the Respondent Employer and forwarded to
the Respondent Union by the Regional Director
(g) Furnish to the Regional Director signed copies of
the notice marked Appendix B in a sufficient number
48 See in 47 supra
49
to be posted by the Respondent Employer in all places
where notices to employees are customarily posted
(h) In the event that the Respondent Employers Pacif
is Amphitheatre is closed at the time the Respondent
Union commences compliance with the terms of this
Order such as for example being closed for the winter
season then the Respondent Union and the Respondent
Employer jointly shall mail a copy of Appendix A and
a copy of Appendix B to the last known address of
each unit employee who was employed at any time
during the last payroll period before the Respondent
Employers Pacific Amphitheatre closed
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT interfere with restrain and coerce em
ployees in the exercise of the rights guaranteed in Sec
tion 7 of the Act and WE WILL NOT render aid assist
ance and support to International Alliance of Theatrical
Stage Employees and Moving Picture Machine Opera
tors of the United States and Canada Local 504 which
did not represent an uncoerced majority of our employ
ees and WE WILL NOT discriminate in regard to the hire
or tenure of employment and the terms or conditions of
employment of our employees so as to encourage mem
bership in that Union by
(a) Recognizing the Union as the collective bar
gaining representative of certain employees of our
employees
(b) Negotiating and agreeing to a collective bar
gaining agreement with that Union concerning the
wages hours working conditions and other terms
and conditions of employment of certain employees
which collective bargaining agreement includes
union security provisions and exclusive referral
system provisions
(c) Thereafter applying maintaining and enforc
ing the provisions of the collective bargaining
agreement notwithstanding the fact that the Union
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not represent an uncoerced majority of the Re APPENDIX B
spondent Employers employees
WE WILL NOT interfere with restrain and coerce em
ployees in the exercise of the rights guaranteed in Sec
tion 7 of the Act and WE WILL NOT render aid assist
ance and support to the Union named above which did
not represent an uncoerced majority of our employees
by
Telling an employee that he would be terminated
from employment within 7 days if the employee
did not permit our Company to withhold union as
sessments from the employee s wages as provided
for in the collective bargaining agreement between
our Company and that Union
WE WILL NOT in any like or related manner interfere
with restrain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL withdraw and withhold recognition from the
Union named above as the collective bargaining repre
sentative of our employees in the unit described below
unless and until such time as the Union has been certified
by the National Labor Relations Board as the exclusive
collective bargaining representative of such employees
The unit is described as
All master carpenters master propertymen
master electricians master soundmen master ward
robe persons front light operators bridge light op
erators visual effect operators sound console oper
ators tape deck operators turntable and winch op
erators traveler operators chemical effect opera
tors floor sound men pyrotechnic operators fork
lift operators riggers truck loaders or unloaders
treasurers ticket sellers employed by our company
at the Pacific Amphitheatre excluding all other em
ployees guards and supervisors as defined in the
Act
WE WILL cease giving any effect to the terms and con
ditions of the collective bargaining agreement between
our Company and the Union named above with regard
to the employees in the unit described above and specif
ically WE WILL cease deducting union assessments from
employees wages in the unit described above
WE WILL jointly and severally with the Union named
above reimburse our employees for the union dues fees
and assessments which they paid as a result of the unfair
labor practices found by the National Labor Relations
Board Interest on such money is to be computed in an
cordance with NLRB decisions and such interest paid to
the employees
JAMES NEDERLANDER D/B/A NED WEST
INC D/B/A PACIFIC AMPHITHEATRE
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT restrain and coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act
and WE WILL NOT cause or attempt to cause James Ne
derlander d/b/a Ned West Inc d/b/a Pacific Amphith
eatre to discriminate against employees in violation of
Section 8(a)(3) of the National Labor Relations Act by
(a) Receiving aid assistance and support from
the Employer named above by agreeing to accept
recognition as the exclusive collective bargaining
representative of certain employees of the Employ
er notwithstanding the fact that our Union did not
represent an uncoerced majority of the Employers
employees
(b) Negotiating and agreeing to a collective bar
gaming agreement with that Employer concerning
the wages hours working conditions and other
terms and conditions of employment of certain em
ployees of the Employer which collective bargain
mg agreement includes union security provisions
and exclusive referral system provisions
(c) Thereafter applying maintaining and enforc
ing the provisions of the collective bargaining
agreement notwithstanding the fact that our Union
did not represent an uncoerced majority of the Re
spondent Employers employees
WE WILL NOT restrain and coerce employees in the
exercise of the rights guranteed in Section 7 of the Act
by
(a) Telling employees of that Employer that our
Union had a contract with the Employer and that
the employees would be required to join the Union
within 30 days if the employees wanted to continue
working at that Employers box office and if the
employees did not join our Union our Union would
contact the Employer and the employees would be
terminated
(b) Telling employees of that Employer that our
Union was going to enforce the contract and that
our Union would write a letter to that Employer
NED WEST INC
who would terminate anyone who failed to join our
Union
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act
WE WILL cease acting as the exclusive collective bar
gaining representative of the employees of the Employer
named above in the unit described below unless and
until such time as our Union has been certified by the
National Labor Relations Board as the exclusive collec
tive bargaining representative of such employees The
unit is described as
All master carpenters master propertymen
master electricians master soundmen master ward
robe persons front light operators bridge light op-
erators visual effect operators sound console oper
ators tape deck operators turntable and winch op
erators traveler operators chemical effect opera
tors floor sound men pyrotechnic operators fork
lift operators riggers truck loaders or unloaders
51
treasurers ticket sellers employed by James Neder
lander d/b/a Ned West Inc d/b/a Pacific Am
phitheatre excluding all other employees guards
and supervisors as defined in the Act
WE WILL cease giving any effect to the terms and con
ditions of the collective bargaining agreement between
our Union and the Employer named above with regard
to the employees in the unit described above
WE WILL jointly and severally with the Employer
named above reimburse the employees of that Employer
for the union dues fees and assessments which they paid
as a result of the unfair labor practices found by the Na
tional Labor Relations Board Interest on such money is
to be computed in accordance with NLRB decisions and
such interest paid to the employees
INTERNATIONAL ALLIANCE OF THEATRI
CAL STAGE EMPLOYEES AND MOVING PIC
TURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA LOCAL 504