Technicolor Motion Picture Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1958

122 N.L.R.B. 73 (N.L.R.B. 1958)

TECHNICOLOR MOTION PICTURE CORPORATION 73
Technicolor Motion Picture Corporation and Hayden A. Bal-
thrope
Local 683 of the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO and Hayden A. Bal-
thrope. Cases Nos. 21-CA-2172 and 21-CB-698. November 14,
1958
SUPPLEMENTAL DECISION ON REMAND
On June 21, 1956, the Board issued a Decision and Order in this
case' in which it found that Technicolor Motion Picture Corporation,
herein called Technicolor, violated Section 8(a) (3) and (1) of the
Act, by discharging employee Balthrope, and that Local 683 of the
International Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada, AFL-
CIO, herein called IATSE, violated Section 8(b) (2) and (1) (A) by
causing such discharge, after Balthrope had paid his initiation fee
to IATSE. In reaching this conclusion, a majority of the Board
applied the principle of the Aluminum Workers International Union,
Local No. 135, AFL, case 2 in which it held that a full and unqualified
tender of dues at any time before actual discharge was a proper tender
and a subsequent discharge was unlawful.
Thereafter, the case was considered by the United States Court of
Appeals for the Ninth Circuit upon the Board's petition for enforce-
ment of its order. On September 24, 1957, the court issued its decision 3
in which it denied enforcement of the Board's order and remanded the
case to the. Board for the reasons discussed below. In its opinion,
the court expressed its disagreement with the Board's application of
the Aluminum Workers principle. It held that, under the union-shop
proviso to Section 8(a) (3) of the Act, a union may properly insist on
a timely tender of initiation fees as required by a valid union-security
agreement and that a belated tender, one made after the lapse of the
30-day period afforded by the agreement but prior to actual discharge,
will not prevent a valid discharge.4 The court, however, indicated
that circumstances may exist in the present case which may preclude
the Respondents from relying on the belated tender to justify the
discharge. Thus, the court stated (p. 355) :
1115 NLRB 1607.
2112 NLRB 619, enfd. 230 F. 2d 515 (C.A. 7).
3N.L.R.B. v. Technicolor Motion Picture Corporation, et at ., 248 F. 2d 348 (C.A. 9).
4 With all due respect to the court , Members Rodgers and Jenkins adhere to the views
and interpretation of the Act set forth in the Board ' s original decision in this case. In
view of the fact that Member Fanning did not participate in the original decision in this
case, and in view of the court's rejection of the Aluminum Workers principle as applied
to this case , Member Fanning finds it unnecessary to express any opinion on that principle
at this time.
.. 122 NLRB No. 10.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . It was urged that there is here present conduct on the part
of both the Union and the Company which precludes them from
asserting their respective rights under the collective bargaining
agreement . It is pointed out that the Respondents are (1) a Com-
pany which was apparently in continual breach for over five
months of its contractual duty to discharge errant employees who
failed to join the Union and that the discharge was effected
after the Company was made aware of Balthrope's payment of the
initiation. fee and possibly after it learned that the Union had
accepted the tendered check, and (2) a Union which demanded
the employee's discharge after he had paid his fees and which
took no action apparently to forestall Balthrope's discharge after
it had accepted his tender... .
... Surely an employee must not remain perpetually vul-
nerable to discharge because of tardiness in submitting initiation
fees, irrespective of the conduct engaged in by the union or the
employer. Either the employer or the union may by its actions
be estoppel from asserting its particular rights under the col-
lective bargaining agreement.
The court also noted that, apart from the preclusion theory, Bal-
thrope's discharge may have been caused by a reason other than a late
tender of the initiation fee, and that Technicolor may have known that
some other reason motivated the Union's demand for the discharge.
As the Board made no findings with respect to the foregoing issues,
the court remanded the case to the Board for "such proceedings as
it deems justified in light of the views expressed" by the court.
Thereafter, the Board ordered the record reopened and remanded
the case for further hearing. Pursuant to such order, a hearing on
due notice was held before Trial Examiner Wallace E. Royster. On
April 28, 1958, the Trial Examiner issued his Intermediate Report, a
copy of which is attached hereto, wherein he recommended that the
consolidated complaint be dismissed in its entirety. Thereafter, the
General Counsel, IATSE and Technicolor filed exceptions to the
Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
5 The Respondents except to the Trial Examiner's ruling which permitted the General
Counsel to amend the complaint at the remand hearing. As our findings herein are en-
compassed by the original allegations of the complaint, and are made without reference
to the amended allegations , we find no prejudicial error was committed . Contrary to the
Respondent 's contention , we also find that the Trial Examiner properly received evidence
in lieu of the stipulation previously entered into by the Respondents and the General
Counsel. This evidence was received pursuant to the remand order issued by the Board
in conformity with the Ninth Circuit's decision.
TECHNICOLOR MOTION PICTURE CORPORATION 75
in this case, and hereby adopts only the factual findings of the Trial
Examiner, but not his legal conclusions or recommendations.'
The Trial Examiner found, and we agree, that the General Counsel
did not prove by a preponderance of the evidence that the Respondent
IATSE caused, and the Respondent Technicolor effected, Balthrope's
discharge for any reason other than his failure to make a timely
tender of his initiation fee. He therefore recommended dismissal of
the complaint. The Trial Examiner, however, did not consider, as
suggested in the court decision, whether the Respondents were pre-
cluded from asserting their contractual rights to justify Balthrope's
discharge by reason of IATSE's acceptance of his belated tender of
his initiation fees.
We now have before us a more complete record than that made at
the first hearing in this case. As discussed in the Intermediate
Report and shown in the record, Balthrope did not apply for mem-
bership in IATSE and tender his initiation fee within the 30-day
period provided in Respondents' union-security agreement. As a
result, IATSE demanded that Technicolor discharge him. Upon
learning this and in order to avert his discharge, Balthrope, who
several years before had been expelled from the Union, spoke to
IATSE's secretary-treasurer, David Arbuckle, in the latter part of
November 1954 about rejoining the Union. It is clear that Balthrope,
at this meeting, was seeking from IATSE a way to avert his dis-
charge. Thus, according to Arbuckle, Balthrope wanted to find out
what he could do to "save his job at Technicolor." Arbuckle advised
Balthrope to put any offer he might make in writing so that it might
be presented to the executive board of the organization for their con-
sideration. Subsequently, on December 1, 1954, Arbuckle again
advised Balthrope that the executive board could not consider the
matter until he had submitted an application for membership, accom-
panied by the $250 initiation fee. Thereupon, Balthrope mailed to
IATSE his membership application, together with a check for $250,
the full amount of the initiation fee. IATSE cashed the check, kept
the money, but nevertheless persisted in its demand that Technicolor
discharge Balthrope from his employment. In January 1955
Balthrope exhibited to Technicolor's personnel manager, Pottle, the
canceled check showing payment to IATSE of his $250 initiation fee.
Despite its knowledge of IATSE's acceptance of Balthrope's initiation
fee, Technicolor's treasurer, Shattuck, discharged Balthrope on
February 10, in the presence of Pottle.
In view of the foregoing, and upon the entire record in the case, we
find that the Respondent IATSE waived its contractual right to
6 The Respondents also requested oral argument . The request is hereby denied as the
record, including the exceptions and briefs, adequately present the issues and positions
of the parties.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand Balthrope's discharge. It is clear that Balthrope tendered
his initiation fee and applied for membership solely because of the
compulsion of the union-security provisions of the Respondents' con-
tract, and in order to protect his job. That IATSE was aware of this
is equally clear. Therefore, when IATSE accepted Balthrope's initia-
tion fee, though belated, and retained it with no apparent intention of
returning it,' IATSE must be deemed to have accepted the initiation
fee with the implicit condition that it would not demand Balthrope's
discharge. The law is not so unconscionable as to sanction the for-
feiture of a right where the party to whom the obligation was owing
accepted performance of the obligation, simply because the perform-
ance was late.8 The fact that IATSE made available its employment
facilities and secured another job for Balthrope after his discharge
does not justify, as the Respondents argue, IATSE's retention of the
initiation fee, or establish that IATSE complied with the real purpose
of the tender, which was to "save his job."
In these circumstances, we find that the Respondent IATSE waived
its right to demand Balthrope's discharge for not timely complying
with the terms of its union-security agreement. We further find that,
as the Respondent Technicolor had knowledge of these facts, it, too,
was precluded from relying upon the contract to justify its discharge.
Accordingly, we conclude that the Respondent IATSE violated
Section 8(b) (2) and (1) (A) of the Act by causing the Respondent
Technicolor to discharge Balthrope, and that the Respondent Techni-
color violated Section 8 (a) (3) and (1) of the Act by acceding to the
Respondent IATSE's demand. To remedy these unfair labor prac-
tices, we reaffirm the Board's original order previously issued in
this case.
CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera-
tion of the above Supplemental Decision on Remand.
7 This is indicated by the fact that as of the time of the remand hearing, which was
held more than 3 years after Balthrope paid his initiation fee, IATSE had not returned
his money.
8 "Where a contract expressly provides that 'time shall be of the essence ' . . . per-
formance on time is thereby made a condition of the obligor 's reciprocal rights under
the contract. But the courts do not favor forfeiture . . . of money payments already
made for which no equivalent will be received in case the 'condition' is insisted on and
a 'forfeiture' enforced.
11. . . The acceptance of a delayed payment, whether of part or all of the amount then
due, without any notice of intention to claim a forfeiture or discharge , is operative as a
waiver with respect to the default which then exists." 3 Corbin on Contracts, Section
354. See also Williston on Contracts, Sections 680, 684, 1819 ; Restatement of the Law
of Contracts, Section 296.
SUPPLEMENTAL INTERMEDIATE REPORT
On June 21, 1956,1 the National Labor Relations Board , herein called the Board,
issued its Decision and Order in this proceeding , finding that Technicolor Motion
Picture Corporation, herein called Technicolor, had violated Section 8 (a),(3) and (1)
1115 NLRB 1607.
TECHNICOLOR MOTION PICTURE CORPORATION 77
of the Act and that Local 683 of the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the United States and Canada,
AFL-CIO, herein called the Local, had violated Section 8(b) (1) (A ) and (2) of the
Act. The violations found concerned solely the discharge of Hayden A. Balthrope.
Thereafter on September 24, 1957, the United States Court of Appeals for the Ninth
Circuit denied the Board 's petition for enforcement of its Order .2 In denying
enforcement , the court remanded the cause to the Board "for such further proceedings
as it deems justified in light of the views expressed in this opinion."
On November 8, 1957, the Board , by appropriate order, reopened the record and
remanded the proceeding to the Regional Director for the Twenty -first Region,
Los Angeles , California , for the purpose of arranging a further hearing.
Pursuant to due notice , a further hearing was held in Los Angeles, California, on
March 17, 18, and 20 , 1958, before the duly designated Trial Examiner . All parties
were represented by counsel and were afforded opportunity to examine and cross-
examine witnesses and to introduce evidence pertinent to the issue.
At the outset of the hearing , over the opposition of counsel for Technicolor and
counsel for the Local , the General Counsel was permitted to amend the complaint
upon which the Order of the Board was issued. The complaint , as amended at the
initial hearing , alleged in respect to Technicolor the commission of unfair labor
practices within the meaning of Section 8 ( a)(1) and (3) of the Act , by reason of
the discharge of Balthrope at the request of the Local . In respect to the Local, that
complaint alleged a commission of unfair labor practices within the meaning of
Section 8 ( b)(1)(A) and ( 2) of the Act by reason of a request and demand of
Technicolor for the discharge of Balthrope for his failure to tender the periodic dues
and initiation fees uniformly required as a condition for retaining membership in the
Union and a causation of discharge because of Balthrope 's nonmembership in the
Local, notwithstanding that the Local had at the time of causation in its possession
initiation fees tendered by Balthrope.
By amendment at the instant hearing, the complaint now alleges as to Technicolor
that it discharged Balthrope at the request of the Local notwithstanding that it had
reasonable grounds for believing that Balthrope 's membership in the Local was
terminated for reasons other than his failure to tender dues and initiation fees
and notwithstanding that it knew that the stated reasons given by the Local for
requesting discharge were not the true ones . In respect to the Local the complaint
now alleges that it requested and demanded of Technicolor the discharge of Bal-
thrope for reasons other than his failure to tender periodic dues and initiation fees
and that it caused Balthrope 's discharge because of his nonmembership in the Local
notwithstanding that the membership of Balthrope was terminated for reasons other
than a failure to tender periodic dues and initiation fees uniformly required as a
condition of attaining or retaining membership in the Local.
Upon consideration of the entire record in the case, including the original Decision
and Order of the Board, the opinion of the United District Court of Appeals, the
brief filed by Technicolor and the Local , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The original record, consisting almost entirely of a stipulation , set forth these
facts:
1. That on or about July 31 , 1954, Technicolor and the Local entered into a
collective -bargaining agreement containing a valid union -security clause.
2. That Balthrope learned of the execution of this agreement shortly after July 31
and no later than September 7, 1954.
3. That Balthrope failed to apply for membership in the Local as required by
the union -security provision of the agreement.
4. That the Local on August 31, 1954, and on October 1, 1954, demanded the
discharge of Balthrope , pursuant to the terms of the collective-bargaining agreement.
5. That upon Technicolor 's continued failure to discharge Balthrope , numerous
oral demands were made upon Technicolor by the Local that it do so.
6. That on or about December 7, 1954, Balthrope made application for member-
ship in the Local and delivered -a check to the Local in the amount uniformly
required of all prospective members.
7. On February 7, 1955, the Local approved Balthrope 's application for
membership.
8. On February 10, 1955, Balthrope was discharged by Technicolor.
9. On the same date the Local informed Balthrope that he was accepted as a
member and that another position in the industry had been found for him.
248 F. 2d 348.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quoting from its decision in the Aluminum Workers case,3 the Board said, "A
full and unqualified tender made at any time prior to actual discharge, and without
regard as to when the request for discharge was made, is a proper tender and a
subsequent discharge based upon the request is unlawful." Finding that Balthrope
had paid the initiation fee before his discharge, the Board decided that the discharge
in such circumstances could not be defended under the union-shop agreement. The
Board ordered Technicolor to reinstate Balthrope and both Technicolor and the
Local to make him whole for lost earnings.
In denying enforcement to the Board's Order, the Circuit Court of Appeals held,
in substance, that the union-shop proviso in Section 8(a)(3) of the Act authorized
,the execution of collective-bargaining agreements making time of the essence in
regard to the tender of initiation fees, and held that the application of the Aluminum
Workers doctrine was precluded. Noting the "skeleton character" of the stipulation
and the lack of support in the record for the contention advanced in oral argument
before the court that an alternative ground for enforcement existed, the court re-
manded the case to the Board to take such further proceeding as it deemed justified
to decide whether in fact Balthrope's discharge was caused by some reason other
than failure to tender his initiation fee within the period allowed by the contract
and to decide whether Technicolor had reason to be on notice of such motivation
for the Local's reiterated demands for discharge. The court observed, "of course
if any other reason or motive did play any part in causing Balthrope's discharge,
the Union was guilty of an unfair labor practice and if the Company had reason to
know the Union's true motive then it too committed an unfair labor practice.
However the Board made no finding on this issue. A finding that the discharge was
caused for a reason or reasons other than the failure to tender initiation fees or
periodic dues is essential if the Order is to be enforced."
Mindful of the Board's Order reopening the record "for the purpose of receiving
evidence relevant to the questions and issues described in the opinion of the United
States Court of Appeals for the Ninth Circuit," I have received and considered all
evidence, testimonial and otherwise, offered by the parties within my concept of
relevancy.
The incidents and events about to be related are set forth in chronological order
and except where noted are based upon uncontradicted evidence.
In June 1949 the president of International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the United States and Canada,
AFL-CIO, herein the International, upon the basis of proceedings which are not
here under attack, assessed a fine of $500 against Balthrope which if not paid within
a stated period matured into expulsion from the International and from the Local.
The fine was not paid. In November of that year, having recently obtained re-
employment with Technicolor, Balthrope attempted to pay dues to the Local. His
proffer was rejected with the comment that he had been expelled from the Local by
the International. Balthrope remained in his employment at Technicolor. In 1952
another employee not shown to have been acting as an agent of the Local or the
International in any respect, caused Balthrope some embarrassment by upbraiding
him for his nonmembership, but this small flame of dispute was quickly doused by
Technicolor. In July 31, 1954, Technicolor and the Local signed a collective-
bargaining agreement containing a valid union-shop provision. All but Balthrope
in Technicolor's employ and in the bargaining unit were members of the Local.
Balthrope testified that he heard rumors to the effect that such an agreement had
been signed but denied having then received any formal notification to that effect
from his employer or the Local. At the expiration of 30 days, by letter from the
Local, Technicolor was advised that Balthrope had made no application for member-
ship and because of this circumstance his discharge was demanded. Technicolor
protested that the International, a contemplated party to the collective-bargaining
agreement, had not signed and refused to honor the demand. Immediately the
same contract was reexecuted by Technicolor, by the Local, and by the International.
Allen Jackson, business agent of the Local, rejected Technicolor's suggestion that a
copy of the contract be posted at the employer's premises. However, a Mr. Pottle,
Technicolor's personnel manager, telephoned Balthrope no later than Septem-
ber 7, 1954, advising Balthrope of the union-shop clause in the executed contract.
Balthrope consulted an attorney to determine a course of action, but did not
approach the Local.
On October 1. 1954, more than 30 days after the execution of the last contract,
the Local again wrote Technicolor stating that Balthrope had made no application
'Aluminum Workers International Union, Local No. 135, AFL, 111 NLRB 411,
112 NLRB 619.
TECHNICOLOR MOTION PICTURE CORPORATION 79,
for membership and demanding his discharge. Balthrope quickly became aware
of this demand and his attorney engaged in correspondence and other communica-
tions with representatives of Technicolor in an effort, apparently, to persuade that the
demand for discharge not be honored. About November 18 Balthrope visited the
offices of the Local and asked the secretary-treasurer, David Arbuckle, what he might
do to settle the matter. Arbuckle told him that he did not know, and expressed the
opinion that it was a bad thing for a nonmember to be working in the industry.
Balthrope agreed. According to Balthrope he suggested to Arbuckle that he pay
the initiation fee of $250 and $150 more to reimburse the Local for any expense
to which it may have been put by reason of a trial afforded Balthrope prior to
his expulsion. Arbuckle denied that any mention of $150 was made. In early
December Balthrope completed an application for membership and sent it with a
check for $250 to the Local. On December 20 Balthrope again visited the offices of
the Local and spoke with Arbuckle and Allen Jackson. According to Balthrope,
Jackson suggested that the former should pay the $500 fine assessed against him in
1949. Jackson denied that any such proposal was made. On the same date Bal-
thrope wrote the Local offering to pay the $500 fine in addition to the $250 initiation
fee which he had already submitted. At both of these conferences in November
and December, the representatives of the Local told Balthrope that the question of
his readmission to the Local was one for the executive board of that organization
and that none of the individual officers could promise him anything in that respect.
On a date which I find followed the meeting of December 20 by a day or so,
Balthrope met a member of the executive board, Rich MacColloch, at Technicolor.
According to Balthrope's credited and uncontradicted testimony, MacColloch said
that he had recently attended a meeting of the executive board during which Bal-
thrope's application for membership was considered. MacColloch said that the
board had voted against admitting him to membership and approved action to have
him removed from the job. A further motion to find another job for Balthrope
was tabled. MacColloch said that he had proposed that Balthrope be given an
opportunity to appear before it, but that this suggestion was not acted upon. Still
in the version attributed to MacColloch, Arbuckle told the executive board that Bal-
thrope had hired an attorney unfriendly to the Union. MacColloch told Balthrope,
"I think you are getting a bad deal in this matter. I wish you luck." On January
12, 1955, Allen Jackson wrote to Balthrope saying that the former was mistaken
in his apparent belief that Jackson had suggested the payment of the $500 fine. The
letter went on to say, "The only requirements which have been imposed before
submission of your request for membership could take place were those stated in
Secretary-Treasurer Arbuckle's letter of December 1, 1954." That letter in effect
told Balthrope that his inquiries concerning membership could not be answered
until accompanied by a membership application and initiation fee.
Sometime in January 1955 Balthrope exhibited to Pottle the check which he had
drawn to the Local, and which had been cleared through his bank, indicating the
payment of $250 initiation fee. On February 10 Balthrope was called to the office
of David S. Shattuck, Technicolor's treasurer, and in the presence of Pottle told
that he was discharged. According to Balthrope, Shattuck said that the Local was
bringing pressure on Technicolor and had threatened a strike vote if Balthrope was
not discharged. Shattuck said that he could not afford to have production halted
on that account. According to Balthrope, Shattuck said that in July, Allen Jackson
had brought in a copy of the contract for signature and seemed much in a hurry about
it. Thirty days after the signing a demand for Balthrope's discharge was received.
Noting that the contract did not have the signatures of International's officers ap-
pended, Shattuck notified Jackson of this fact and shortly a new contract was
brought in for signatures. Jackson on this latter occasion asked Shattuck not to
mention the signing of the contract to Balthrope. Shattuck said he thought it only
fair that Balthrope have this information and he would see to it that it was conveyed
to him. Shattuck then said on the February 10 occasion that he was writing a letter
to the Union saying that "The whole affair stinks and I am thoroughly ashamed to
have any part in it. I am surprised at Mr. Arbuckle's uncharitable attitude and am
surprised at Mr. Jackson's misuse of power." Shattuck testified that he thought it
unlikely he had written such a letter to the Local, but readily conceded that he
had expressed himself in that fashion to one of the Local's representatives. On
February 10 the Local wrote Balthrope stating that the executive board had voted
to accept his application for membership subject to the approval of the International
and that as soon as the approval was forthcoming he would be notified of the time
and place of induction into membership. The Local then offered its facilities for
Balthrope's use and noting the fact of his discharge by Technicolor told him of other
employment in the industry for which he was eligible and qualified. By reason of
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this opportunity Balthrope was hired by Consolidated Film Laboratories on February
15 and remains employed there. He has never been notified to appear for induction
into the Local and his $250 initiation fee has never been returned.
Conclusions
The circuit court has held in this case that Balthrope was compelled by the
terms of the collective-bargaining agreement to pay his initiation fee before October
1, 1954, or risk discharge . Thus, the burden now is upon the General Counsel to
establish by a preponderance of the evidence , if he can, that a proffer of initiation fee
within the 30-day period would have been futile; that the Local was determined in
any event that he not be permitted to continue in his employment with Technicolor.
I recognize in this record the following circumstances which may be said to
support the General Counsel in his view of the case . Balthrope was expelled from
the Local in 1949. His later offer to pay dues in that year was refused . Although
he has paid his initiation fee he has never been admitted to membership in the
Local . It seems also to be true that Business Agent Allen Jackson desired that
Balthrope not learn of the union -security agreement . Thus it may be inferred that
Jackson hoped the time within which Balthrope could apply for membership and
avoid risk of discharge would pass while he remained in ignorance of any such
requirement . But all this comes up against the hard fact that the Local's bona
fides were never tried . Balthrope did not make timely application for membership.
He "had the choice of testing the union 's sincerity by a tender or of taking the major
risk of discharge ; a reasonable man could hardly fail to try the former before
blithely accepting the latter alternative ." 4 It may be argued , of course, that
conduct of the Local , subsequent to the demand for discharge , is such as to indicate
a purpose to demand more of Balthrope before granting him membership than of
other employees similarly situated . There is Balthrope 's testimony that Arbuckle
suggested the inadequacy of $150 to reimburse the Local for the expense of the
trial which resulted in his expulsion . There is also his testimony that Jackson
suggested in December the desirability of an offer to pay the $500 fine assessed
against him in 1949. It is clear enough that Balthrope said he was willing to do
either. Both Arbuckle and Jackson denied that any such conditions were sug-
gested or imposed. Even if they had done so, even if Balthrope was denied
membership after October 1, 1954, unless he would agree to make payments in
addition to the established initiation fee, it is still essential that the General Counsel
establish that such additional payments were sought by the Local as a price to be
charged Balthrope to remain an employee of Technicolor . When the 30-day
period ended without an application for membership from Balthrope , the Local's
right to demand his discharge matured. The record does not establish that it
thereafter offered to bargain that right away.
The fact that the Local immediately upon causing Balthrope 's discharge obtained
other and comparable employment for him, may indicate that its sole concern here
was to vindicate its contractual rights and to advertise to employees in the industry
generally that it proposed to secure strict adherence to union-shop provisions
wherever they existed . It is also, of course, possible to conclude that the Local
felt somewhat unsure of the legality of the action it had taken and arranged to find
other employment so as to avoid any possible back-pay liability.
I find nothing in the conduct of the Local reflected in this record , which would
adequately support a finding that an offer of initiation fee by Balthrope within the
30-day period would have been refused . I find then that the General Counsel has
not established by a preponderance of the evidence that the demand for Balthrope's
discharge by the Local was postulated upon any consideration other than his failure
to make a timely offer to pay an initiation fee. It follows , and I find, that by
demanding and causing Balthrope 's discharge , the Local did not violate the Act.
By acceding to the demand and by discharging Balthrope , Technicolor did not
violate the Act.
It may be appropriate here to comment that Balthrope has done all that can
be required of him to obtain membership in the Local so as to satisfy a condition of
employment . Assuming that his employer is one within the jurisdictional reach of
the Board , he may not be disturbed there because of nonmembership in the Local.
If he can arrange employment with Technicolor , the Local may not lawfully prevent
his hire .5
* N.L.R.B . v. Local 3, Bloomingdale , etc., Department Store Union, C.I.O., 216 F. 2d
285 (C.A. 2).
r, Radio Officers Union, etc . v. N.L.R.B., 347 U.S. 17, 41.
SIEMONS MAILING SERVICE 81
CONCLUSIONS OF LAw
1. Technicolor Motion Picture Corporation is an employer within the meaning of
Section 2(2) of the Act.
2. Local 683 of the International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. Technicolor Motion Picture Corporation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Technicolor Motion Picture Corporation has not engaged in unfair labor
practices, within the meaning of Section 8(a) (1) and (3) of the Act.
5. Local 683 of the International Alliance of Theatrical Stage Employees and
Moving Picture Operators of the United States and Canada , AFL-CIO, has not
engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2)
of the Act.
[Recommendations omitted from publication.]
Siemons Mailing Service , Petitioner and San Francisco-Oakland
Mailers Union No. 18, ITU, AFL-CIO; Independent Mailers'
and Addressers' Union, and Bookbinders & Bindery Women,
Local 32-125, I.B. of B. Cabe No. 20 RM--60. November 14,
1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before James S. Jenson, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is a California corporation engaged in the opera-
tion of a mailing service in Oakland, California. In the course of its
operations it processes, addresses and mails written materials sub-
mitted to it by its customers for that purpose. During the year 1957
its total revenues were approximately $240,000, of which $77,000 was
received in connection with services performed on materials which
were mailed outside the State of California by the Employer. The
Employer urges the Board to assert jurisdiction on the theory that it
performed more than $50,000 worth of services on materials which
were mailed outside the State of California, and therefore its direct
outflow satisfies the minimum jurisdictional requirements established
in the Jonesboro case.'
On October 2, 1958, the, Board publicly announced 2 the adoption of
new jurisdictional standards , which would be set forth in decisions
rendered in cases issuing thereafter. In this case, the Board sets forth
the $50,000 outflow-inflow standard for nonretail enterprises , and the
1 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
$ Press Release (R-576y;
122 NLRB No. 13.
505395-59-vol. 122-7