Writers Guild of America, West, Inc.

National Labor Relations Board - Board Decisions

May 13, 1975

217 N.L.R.B. 957 (N.L.R.B. 1975)

WRITERS GUILD OF AMERICA, WEST, INC. 957
Writers Guild of America, West, Inc. andAssociation
of Motion Picture and Television Producers,
Inc.' and American Broadcasting Companies, Inc.
Columbia Broadcasting System, Inc. National
Broadcasting Company, Inc: and QM Produc-
flons. Cases 31-CB-1203-2, 31-CB-1316,
31-CB-1223, 31-CB-1313, and 31-CB-1355
May 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On September 18, 1974, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions3
and a supporting brief, and Charging Parties Networks
and the Association filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith, and to adopt his recom-
mended Order.
1. The Administrative Law Judge found violations of
Section 8(b)(1)(B) only with respect to the
"hyphenates"' in the producer, director, and story
editor classifications because the record showed that,
except for Jerome Bredouw, all of the persons who
were both charged and tried by the Union occupied
those positions. With respect to Jerome Bredouw, he
found that the charges against Bredouw were dismissed
after trial, and that no penalty was assessed against
him. The Administrative Law Judge therefore con-
cluded that it was unnecessary to consider alleged
violations as to those hyphenates in other
classifications,' and he therefore did not resolve these
i Hereinafter referred to as the Association.
2 Hereinafter referred to as the Networks
3 In its brief to the Board, Respondent withdrew its contention that certain
issues should be deferred to arbitration under Collyer Insulated Wire, 192
NLREI 837 (1971) Accordingly, that issue is not before the Board for
resolution
4 "Hyphenates" is a term applied to persons who are writers but possess
the ability to perform in more than one capacity, such as producing, direct-
ing, or editing for their employers in the industry. We affirm the Administra-
tive Law Judge's findings that hyphenates who are also producers, directors,
and story editors are supervisors within the meaning of Sec 2(11) of the Act.
5 Included in these classifications are vice presidents for program produc-
tion, vice presidents for production, vice presidents for program develop-
ment, general programming executives, managers of film programs, and
executives Although the Administrative Law Judge made no finding on the
additional allegations in the complaint. The Associa-
tion and the Networks, two of the Charging Parties
herein, except to this omission for reasons we deem
meritorious.
There is no question that, although only some of the
hyphenates were brought to trial and actually fined or
disciplined for crossing the picket line, all of the hyphen-
ates named in the complaint were threatened with
similar discipline and adverse action if they crossed the
picket line to go to work. There is also no question that
when Respondent threatened the hyphenates, Re-
spondent was determined to enforce its threats without
regard to the fact that the Charging Parties uniformly
followed a policy during the strike not to require
hyphenates to perform any unit or struck work. Fur-
thermore, if it had any doubt at all, Respondent could
easily have ascertained whether any struck work was in
fact performed by comparing dated scripts to the final
film production. As we find that Section 8(b)(1)(B)
proscribes the disciplinary action here taken against
some hyphenates6 (but only threatened against oth-
ers), it would seem to follow, and we further find, that
the proscription also encompasses the threat to take the
prohibited disciplinary action' therefore sustain the
complaint's alleged violations of Section 8(b)(1)(B) of
the Act, in toto.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Writers Guild of America, West, Inc.,
Los Angeles, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, except that the attached notice is
substituted for that of the Administrative Law Judge.
MEMBER FANNING, dissenting:
For the reasons stated in my dissenting opinion in
Triangle Publications, Inc., 216 NLRB No. 147, I
supervisory status of persons occupying these positions, we find it necessary
to do so The record clearly reflects that persons in these classifications
engage in hiring and are representatives, or potential representatives, of
their employers in the adjustment of grievances. Accordingly, we conclude
that persons occupying the above positions are supervisors and representa-
tives of their employers within the meaning of Secs 2(11) and 8(b)(1)(B)
of the Act.
6 Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216
NLRB No. 149 (1975), New York Typographical Union No. 6, International
Typographical Union, AFL-CIO (Daily Racing Form, a Subsidiary ofTrian-
gle Publishers, Inc, 216 NLRB No 147 (1975).
7 Local 423, Laborers' International Union of North America,
AFL-CIO (Mansfield Flooring Co., Inc.), 195 NLRB 241 (1972), Interna-
tional Union of Operating Engineers, Local 406, AFL-CIO (New Orleans
Chapter, Associated General Contractors ofAmenca, Inc.), 189 NLRB 255,
265 (1971); United Slate, Tile & Composition Roofers, Damp & Waterproof
Workers Association, Local No. 220 (Jones and Jones. Inc.), 177 NLRB 632,
653 (1969)
217 NLRB No. 159
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would dismiss the complaint. I wish to point out, once
again, that the Supreme Court has, in Florida Power &
Light Co.,8 indicated that Section 8(b)(1)(B) was de-
signed for the sole and limited purposes of preventing
labor organizations from forcing employers into mu1=
tiemployer bargaining negotiations and from dictating
to employers whom they should select to represent
them during grievance adjustment procedures and/or
collective-bargaining sessions. Our prior "evolution-
ary" approach9 to this section of the Act having thus
been rejected by the Supreme Court, it is obvious that
the very narrow thrust accorded the section in its early
years must be reconstituted as its current thrust. What-
ever the wisdom of Respondent's course of action herein,
the plain fact is that its actions are not, in my view,
proscribed. by the section upon which the General
Counsel relies . I thus dissent.
8 Florida Power & Light Co. v International Brotherhood of Electrical
Workers, Local 641, 417 U S. 790 (1974)
9 For a discussion of the history of Section 8(b)(1)(B) see id at
798-805.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce any employer in
the selection of representatives for the purpose of
collective bargaining or the adjustment of griev-
ances:
(a) by issuing rules, orders, directions, or in-
structions in any form to any such employer
representative not to perform supervisory, ex-
ecutive, or managerial functions for an em-
ployer, or
(b) by threatening any such employer repre-
sentative with fines , suspensions , or expulsion
from membership, blacklisting, ostracism, or
any other penalty or reprisal for performing
supervisory, executive, or managerial functions,
or
(c) by charging or trying any such employer
representative for performing supervisory, ex-
ecutive, or managerial functions, or
(d) by fining or otherwise disciplining any
such -representative for performing supervisory,
executive, or managerial functions, or
(e) by enforcing in any other manner any such
rule, order, direction, or instruction.
WE WILL NOT in any like or related manner re-
strain or coerce any employer in the selection of
representatives for the purpose of collective bar-
gaining or the adjustment of grievances.
WE WILL rescind and revoke, and expunge from
our records , any fine , suspension , or expulsion
from membership or any other penalties to the
extent previously imposed on the following per-
sons, or on any other representative of an em-
ployer for the purpose of collective bargaining or
the adjustment of grievances, who worked as a
supervisor, executive, or in a managerial position
during the strike which began on or about March
4, 1973, and advise such persons of this action:
Hugh Benson Jon Epstein
Robert Blees David Levinson
Cy Chermack John T. Mantley
Robert A. Cinander Herman S. Saunders
Barry Crane David Victor
WE WILL reimburse the persons named and de-
scribed above for any fines imposed upon them for
working during the strike which began on or about
March 4, 1973, with interest thereon at 6 percent
per annum.
WRITERS GUILD OF AMERICA, WEST,
INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This matter
was heard at Los Angeles, California, on several dates from
May 21 until November 26, 1973.1 The hearing was closed
by an order dated January 25, 1974.
1. Procedure
Upon a charge filed in Case 31-CB-1203-2, on March 8,
against Writers Guild of America, West, Inc. (herein "Re-
spondent") by Association of Motion Picture and Television
Producers, Inc. (herein "AMPTP"), and a charge filed in
Case 31-CB-1223, on April 4, against Respondent by Ameri-
can Broadcasting Companies, Inc. (herein "ABC"), Co-
lumbia Broadcasting System, Inc. (herein "CBS"), and Na-
tional Broadcasting Company, Inc. (herein "NBC") (herein
jointly "the Networks"), the Regional Director for Region
31, on April 18, issued an order consolidating cases and a
consolidated complaint against Respondent, which was
amended by the issuance of a consolidated amended com-
plaint on May 23. Respondent filed timely answers. Hearing
on this complaint was concluded on June 13.
Upon a charge filed in Case 31-CB-1313, on July 11, by
the Networks, and a charge filed in Case 31-CB-1316, on
July 16, by AMPTP against the Respondent, the Regional
Director, on July 25, issued an order consolidating those two
I All dates herein are in 1973, unless otherwise noted.
WRITERS GUILD OF AMERICA, WEST, INC.
cases and a consolidated complaint. Respondent filed timely
answer. By a joint motion dated August 2, the parties re-
quested that the four cases be consolidated, and the record
reopened for further hearing. This motion was granted by
order dated August 10.
Upon a charge filed in Case 31-CB-1355, on September 5,
against Respondent by QM Productions (herein "QM"), the
Regional Director, on September 20, issued a complaint in
that case. Respondent filed timely answer. By motion dated
November 9, General Counsel requested that Case
31-CB-1355 be consolidated for the purposes of hearing and
decision with the four cases previously consolidated. On
November 13, an Order to Show Cause why this motion
should not be granted was issued . The motion was granted at
the hearing held on November 26. Thereafter, General Coun-
sel filed a motion dated December 11, to substitute a second
consolidated amended complaint for all complaints pre-
viously issued in the above-captioned cases, to which Re-
spondent filed an answer dated December 13. Finally , in lieu
of further hearing in these matters, all parties submitted a
stipulation of facts with exhibits attached, dated December
17. By order dated January 15, 1974, General Counsel's mo-
tien to substitute the second consolidated amended complaint
for all prior complaints was granted and the complaint and
the answer thereto were received into the record, and the
stipulation of facts, with specified exhibits, was recieved, the
hearing in this proceeding was closed, and date set for receipt
of briefs.'
2. Allegations
The various complaints issued in this proceeding, cumu-
lated in the second consolidated amended complaint (herein
referred to as the complaint), allege that Respondent violated
Section 8(b)(1)(B) of the Act by restraining and coercing
employer-members of AMPTP, and NBC, CBS, ABC, and
QM in the selection of their representatives for collective
bargaining and the adjustment of grievances by threatening
to discipline and by disciplining certain persons and classes
of persons employed by the aforesaid employers, such persons
and classes of persons being, it is alleged, members of Re-
spondent, and supervisors within the meaning of the Act for
their respective employers and representatives or potential
and likely representatives for their employers for the purposes
of collective bargaining or the adjustment of grievances
within the meaning of the Act.
Respondent's answer to the complaint, while admitting
certain allegations, denies the alleged unfair labor practices.
Upon the entire record in this case, from observation of the
witnesses , and after due consideration of the briefs filed by the
General Counsel, the Respondent, and the Charging
Parties,' I make the following:
1 Exhibit numbers have previously been assigned to all formal papers with
the exception of my order of January 25, 1974, and General Counsel's
telegraphic response thereto, received February 4, 1974. The Order is
hei eby received as G.C Exh 14L, and the response is received as G C. Exh.
141VI
3 After the decision of the Supreme Court in Florida Power & Light Co.
v. international Brotherhood ofElectrical Workers Local 641, 417 U.S. 790,
the parties were invited to file briefs, no later than August 9, 1974, with
FINDINGS AND CONCLUSIONS
I. JURISDICTION
959
AMPTP is an association located at Los Angeles admitting
to membership firms engaged in the production and distribu-
tion of motion picture and television films, and existing, in
part, for the purpose of negotiating, executing, and adminis-
tering collective-bargaining agreements on behalf of its em-
ployer-members with the bargaining representatives of their
employees, including the Respondent. AMPTP members col-
lectively annually sell and ship from their studios in Cali-
fornia directly to points outside that State motion picture
films and other products valued in excess of $50,000.
ABC, CBS, and NBC each have offices in various locations
throughout the United States including California, and each
derives gross revenues in excess of $100,000 from sales to
customers located outside California , and each annually pur-
chases goods valued in excess of $501,000 directly from sup-
pliers located outside California.
QM, a corporation with its principal place of business in
Burbank, California, engaged in the production and distribu-
tion of motion picture and television films, annually sells such
films valued in excess of $50,000 directly to customers
located outside California.
Respondent's answer admits, and it is found, that the As-
sociation, and its members through the Association, CBS,
NBC, ABC, and QM are employers engaged in commerce
within the meaning of the Act.
Respondent's answer admits and it is found that Respond-
ent is now and at all times material has been a labor organiza-
tion within the meaning of the Act.
II PRELIMINARY STATEMENT OF FACTS AND PRINCIPAL ISSUES
Respondent has for some time represented persons en-
gaged in writing functions employed by members of AMPTP,
the Networks, and certain independent producers such as
QM. As a result of prior bargaining, Respondent was a party
to collective-bargaining agreements with AMPTP, for its
members, with the Networks, and with QM due to expire in
1973. The AMPTP agreements were terminated effective
March 4, by notice from the Respondent pursuant to the
terms of the agreements. On or about that same date, Re-
spondent engaged in a strike against the AMPTP and its
employer members which continued until June 24, during
which time Respondent picketed some of those employers at
various times. Beginning on or about March 29 and continu-
ing until July 12, Respondent engaged in a strike against
NBC, CBS, and ABC, and maintained picket lines at the
premises of each of them. Beginning on or about March 4,
and continuing until March 17, Respondent engaged in a
strike against and maintained a picket line at the premises of
QM.
In February and thereafter, Respondent adopted and dis-
tributed to all its members some 31 strike rules (later reduced
to 30, as discussed hereinafter), in anticipation of the strike
which ensued . In essence these rules (hereinafter considered
respect to the impact of that decision upon this case and did so I have also
issued a separate order correcting some inaccuracies in the transcript
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in some detail) forbade members of Respondent to do any
work of any sort for employers on strike, or to cross picket
lines to go on the premises of such employers without specific
permission of Respondent. Respondent took other action,
and caused certain publicity to issue designed to impress on
its members the consequences of violating these rules.
At the times material to this proceeding, Respondent's
membership included a substantial number of persons en-
gaged in performing functions other than writing for their
employers in the industry. Because of their ability to perform
in more than one capacity, such as producing, directing, or
writing, these persons are referred to as "hyphenates." It
would appear that many of these, if not most, have not en-
gaged in creative writing for years. Respondent asserts, how-
ever, that even when their principal function is other than
writing, the nature of the work is such that they must and do
engage in some writing. The hypenate's principal work func-
tion (other than writing) will sometimes be referred to herein
as his (or the) "pnmary function."
General Counsel contends that these hyphenates occupy
supervisory position within the meaning of the Act, and are
representatives, or potential and likely representatives, for
their respective employees for the purpose of collective bar-
gaining or the adjustment of grievances.
The record indicates that Respondent was particularly
concerned that its hyphenate members should not cross
picket lines or go to work during the strike. Members who
were in a withdrawn status prior to the strike were reac-
tivated. Most of the hyphenates appear to have held only
associate membership in Respondent at the time. Those
hyphenates questioned indicated their understanding that, as
associate members, they had no right to vote on the adoption
of the Respondent's strike rules, and did not do so. With one
exception, the hyphenates also testified to the same effect
with respect to the vote authorizing Respondent to strike.
Herbert Wright, an associate producer, testified that at the
.strike vote meeting he was given a card permitting him to vote
on authorization of the strike, but was not given an oppor-
tunity to vote on the strike rules.
Respondent's constitution and bylaws in evidence (G.C.
Exh. 12a) are confusing on the issue. Those in effect until
December 1972 provide in article IV, section 6, paragraph 1,
that associate members shall not have the right to vote, while
article XIV, section 8 (last paragraph) states certain re-
stricted circumstances in which associate members may vote
on strikes. In the latter part of the booklet are proposed
changes in the constitution and bylaws. Assuming that these
were in effect at times material to this case, article IV, section
7(b) provides that associate members under certain condi-
tions (different from those noted above) might vote on strikes.
However, it is not shown that any hyphenate involved herein
satisfied these latter conditions. Counsel for Respondent,
during the disciplinary hearing concerning hyphenate-mem-
ber Coles Trapnell, asserted that associate members could not
vote on the strike rules as such.
At least one of these hyphenate-members attempted, prior
to the strike, to resign from membership in Respondent. In
accordance with the provisions of the constitution and
bylaws, Respondent rejected the attempted resignation, "in
view of current contract negotiations and the importance to
the Guild of maintaining effective communication with its
membership," advising that the member must maintain his
membership at least during the period of negotiations and
probably for 6 months thereafter. This became known to
other hyphenates prior to the strike. It was stipulated by the
parties that at all times material this refusal to permit any
member to resign from membership during the pendency of
collective-bargaining negotiations, and for 6 months there-
after, was the policy of Respondent.
.From approximately April 6 through about November, 8,
Respondent served charges for violation of strike rules and
notice of disciplinary hearing on at least 31 hyphenate-mem-
bers. At least 15 such hearings have been held and penalties
imposed on no less than 10 of those charged. It is indicated
that other trials were contemplated at the time of the receipt
of the filing of the last stipulation of facts by the parties and
that appeals were pending from penalties imposed. Other
action appears to have been stayed pending disposition of this
proceeding.
The major issues to be resolved are the following:
1. The alleged status of the various hyphenates as supervi-
sors and representatives for collective bargaining and the
adjustment of grievances. This was considerably litigated.
However, in its brief, Respondent, as hereinafter noted, ap-
pears to concede that hyphenates performing many functions
in dispute (other than that of story editor) are supervisors
within the meaning of the Act, and may adjust grievances of
employees other than writers represented by Respondent.
2. Whether various actions of alleged restraint and coer-
cion of hyphenates by Respondent designed to compel the
hyphenates to cease work for the struck employers, and Re-
spondent's actions in charging, trying, and penalizing such
members for going to work during the strike, violated Section
8(b)(1)(B) of the Act. Also whether Respondent's refusal to
allow such hyphenates to resign from membership in these
circumstances violated the Act.
3. Whether certain issues in this matter should be deferred
to arbitration under the parties' collective-bargaining
contracts.4
III THE SUPERVISORY ISSUES
The General Counsel contends that persons performing the
following functions are supervisors within the meaning of the
Act, and are representatives or potential or likely representa-
tives of their employers for the purposes of collective bargain-
ing or the adjustment of grievances:
1. Executive Producer, Producer, and Associate Producer.-
The producer has the primary responsibility for the produc-
tion of films for motion pictures or for television. This respon-
sibility begins with the idea or concept for the film or the
series; includes involvement in the budget for the film; the
° In its answer to the complaint Respondent asserted as three "Separate
Special" defenses the claims that (1) by the terms and provisions of the
various bargaining agreements, the employers had waived the right to desig-
nate Respondent's members as representatives for collective bargaining or
the adjustment of grievances during the strike; (2) by the terms and provi-
sions of the various bargaining agreements, the employers had agreed Re-
spondent's members, including supervisors, might refuse to work during the
strike "and be subject to Guild discipline for crossing picket lines or working
for struck employers "; and (3) that the two issues set forth should be
deferred to arbitration. In its original brief, p 19, Respondent has withdrawn
its first two special defenses. The third is considered hereinafter
WRITERS GUILD OF AMERICA, WEST, INC.
employment of a writer or writers who develop and write the
scripts under the supervision of the producer or others associ-
ated with the producer; the employment of a director and cast
for the film, as well as other employees necessary to make the
film (cameraman, etc.); the selection of sets, locations; the
performance of executive functions during the filming; and
the performance of executive functions in the postproduction
stages after filming.
The producer has substantial responsibility and authority
in adjusting grievances between directors and craft em-
ployees, directors and actors and actresses, between two or
more actors or actresses, and in other similar situations. Pro-
ducers also have responsibility and authority to adjust griev-
ances involving writers, as in the case of disputes between
writers and story editors. In one instance in which a dispute
arose as to whether a commitment had been made to a free-
lance writer, the producer involved decided that no commit-
ment had been made. The testimony shows that if the pro-
ducer had decided that a commitment had been made, that
wouli have been binding and resolved the dispute. Producers
also make the initial determination in situations in which
there may be dispute over the assignment of screen credits to
writers, although this is a complex matter, subject to exten-
sive review. In situations in which the film is being shot on
a distant location, the producer may be involved in negotiat-
ing, or agreeing to short-term agreements with local unions
where the services of local craft members are required, and
possibly adjusting, or attempting to adjust, local jurisdic-
tional conflicts.
In general, an executive producer supervises one or more
producers (this seems to be particularly the case in the televi-
sion industry where an executive producer may have respon-
sibility for several series or projects at the same time, each
with its own producer). The associate producer is an assistant
to the producer. Without distinguishing among them in de-
tai'l, it is clear on this record that persons occupying these
positions in the motion picture or television industries have
the authority to hire, terminate, and responsibly direct other
employees, and to adjust employee grievances, or to effec-
tively recommend such action, and are thus supervisors
within the meaning of Section 2(11) of the Act. Respondent
does not contest this finding or conclusion, except, as noted,
in respect to the producer's role in adjusting grievances of
writers. As found above, however, I find that producers,
executive producers and associate producers do or potentially
may adjust grievances involving writers.
Respondent contends that persons performing the func-
tions considered here, as well as those occupying positions
described hereinafter, as a normal part of their work, perform
writing functions coming within the jurisdiction of Respond-
ent. This contention will be considered hereinafter in a sepa-
rate section of this decision devoted to this issue.'
The record indicates approximately 80 hyphenate-mem-
5 Respondent adduced considerable testimony concerning certain hyphen-
ates who are legally employed by their own wholly owned corporations,
which corporations furnish the hyphenates' services to employers involved
in this proceeding . This is referred to in the record as a "loan out" agree-
ment. The record is convincing and I find that such "loaned-out" employees
occupy the same positions as more conventionally employed persons doing
the same work and are treated the same by the employers here involved It
is noted that Respondent makes no point of this in its brief.
961
bers of Respondent in the position of executive producer,
producer, or associate producer employed by the Charging
Parties in this matter (including major members of AMPTP).
Among them, the following were charged by Respondent
with violation of its strike rules: Philip Barry , Hugh Benson,
Cy Chermack, Robert Cinader, Barry Crane, Jon Epstein,
Andrew J. Fenady, Stephen Heilpern, Ron Honthaner, Leon-
ard Katzman, David Levinson, Roger Lewis, James McA-
dams, John T. Mantley, Thomas L. Miller, Martin Ransoh-
off, William Roberts, Albert Ruddy, Herman S. Saunders,
David Victor, and Herbert Wright.6 Of these, Cermack,
Cinader, Crane, Epstein, Levinson, Saunders , Victor, Ruddy,
Benson, and Roberts were brought before trial panels set up
by Respondent. Some of these were disciplined by Respond-
ent as noted hereinafter.
2. Directors.' Persons in this category are in direct charge
of the principal photography of the film. They hire or effec-
tively recommend the employment of crew and actors, effec-
tively direct such employees, and may discharge or effectively
recommend the discharge of employees. They have authority
to and do adjust grievances of such employees . It is found that
persons performing the functions of director in the television
and motion picture industries are supervisors and adjust
grievances of employees within the meaning of the Act.
The record indicates approximately 15 hyphenate mem-
bers of Respondent in this position employed by-the Charging
Parties (without duplicating those listed as producer-direc-
tors, or the like). Of these Respondent charged the following
with violation of its strike rules: Philip Kaufman, Michael
Crichton, and Sam Peckinpah; Crichton was brought before
a trial panel and was disciplined.
3. Story editors, story consultants, script consultants, execu-
tive story editors, executive story consultants- Although there
may be some differences among these classifications, or in the
requirements of the various employers for these positions,
these job functions may be considered together for our pur-
poses under the title of "story editor." The story editor is of
principal assistance to the producer in the highly important
functions of dealing with scripts and writers. The story editor
may be, and frequently is, concerned with reading and acquir-
ing scripts , interviewing writers and recommending them for
hire (or otherwise), directing and supervising writers in the
development of ideas and the preparation of scripts, and' in
recommending that writers not be retained. On a television
series, the story editor may participate with the producer in
the initial determination of any dispute over screen credits.
He also may serve as a buffer between management and the
writer, as in ameliorating a writer 's distress over material that
has been rewritten. Thus one executive story editor testified
that because he is the first person in the studio that the writer
meets, and due to the story editor's close association with the
writer, "if he [the writer] has a problem, more likely than not,
he will come to me because it is usually a problem with a
producer, or things aren't working out." During the discipli-
nary trial of one in this group, Coles Trapnell, it was in-
dicated that he supervised story analysts employed by the
employer.
6 There are two or three additional producers noted on G.C. Exh. 3 as
having received charges who were not listed in the parties' posthearing
stipulation and for whom copies of the charges were not submitted
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In all of these functions it is found -the story editor is
expected,to and does use individual judgment, initiative, and
responsibility. On the -basis of the entire record,_ it is found
that those persons in the television and motion picture indus-
tries performing the functions of story editor, story consult-
ant, script consultant, executive story editors, and executive
story consultants are supervisors and adjust grievances of
employees within the meaning of the Act'
Of approximately 15 hyphenate-members of Respondent in
this position employed by the Charging Party in this matter.
Respondent charged Robert Blees, Frank Paris, and Coles
Trapnell with violation of Respondent's strike rules and
brought them before a disciplinary -trial board of
Respondent.'
4. Other classifications The General Counsel argues that
hyphenates 'in other classifications, who received Respon-
dent's strike rules, or were threatened with charges or were
charged with violation of those rules, or were tried at discipli-
nary hearings for violation of those rules, are also supervisors
and representatives, or potential representatives, of their em-
ployers for collective bargaining or the adjustment of griev-
ances. The' record indicates that these persons do occupy
executive or management positions. However, my analysis of
the record shows that all of the persons revealed by the record
who were-both charged andtried by Respondent for violation
of the strike rules are contained in the classification pre-
viously considered, except Jerome Bredouw, and the charges
against Bredouw were dismissed after trial, and, so far as this
record shows, no penalty was assessed against him. In the
circumstances it would serve no useful purpose to consider
such other classifications in which those hyphenates are em-
ployed.
IV THE WRITING FUNCTION
Respondent argues, in essence, inter alia, that all of the
above categories normally and regularly engage in writing
within the jurisdiction of the Respondent, and that it should
be inferred,, therefore, that those hyphenate-members of Re-
spondent who went to work during the strike must have
engaged in such writing. This is largely disputed'by witnesses
for the General Counsel and defendants at the disciplinary
hearings, who testified that they do not in the performance of
their primary function for their employers normally or regu-
larly perform writing coming within Respondent's collective-
bargaining agreements and specifically did not do so during
the strike. This requires, at the outset, some consideration of
the functions of writers represented by the Respondent under
the various agreements.
Referring to the 1970 theatrical and television basic agree-
ment between Respondent and the employer members of
7 In Metro-Goldwyn-Mayer Studios, 7 NLRB 662 at 696 (1938), the Board
at the request of Screen Writers Guild, Inc, found story editors in the
motion picture industry to be executives and supervisors and excluded them
from a unit of writers sought by that union
8 It is noted that Respondent made no effort during these disciplinary
hearings to show that these men did any writing or performed any functions
during the strike which were not normal to the primary function of the
classification During the Trapnell hearing, indeed, Respondent's counsel
stated, typical of Respondent's position in these hearings, that [i]t is im-
material [to Respondent's charges against Trapnell] what type of services
were being rendered, whether they were writing services or other services "
AMPTP, it is noted that the parties recognized that members
of the Guild could be employed in capacities other than as
writers. It is provided in article 14, paragraph A, of that
agreement, referring to "writers in non-writing capacities,"
that where such individual is employed "to render services in
a capacity or capacities other than as a writer," those "ser-
vices shall not be subject to this Basic Agreement."' It is
further provided that where such an individual is employed
as a writer (as defined in the agreement), such services shall
be performed under a separate agreement providing for com-
pensation as set forth in the agreement.
Article 14, paragraph B of that agreement also provides, in
pertinent part, that-"A person employed as a writer for a
series whose duties include for that series interviewing other
writers, suggesting story ideas or script changes to other writ-
ers, or recommending approval of material submitted by writ-
ers, shall be subject to this Basic Agreement (excluding- Ex-
ecutives, Executive Producers, and Producers; and also
excluding persons who are employed as bona fide Associate
Producers, who do not perform services as a writer fT° the
series and where the above duties of such persons are inciden-
tal to their primary duties)."
The term "writer" as defined in article 1, paragraph B, l,a,
and paragraph C, 1,a, of that agreement, includes, in pertinent
part, a person "who performs services . . . in writing or
preparing . . . literary material or making revisions, modifi-
cations, or changes in such literary material .... provided,
however that any writing services described below performed
by Producers, Directors, Story Supervisors (other than as
provided in Article 14 hereof), . . . , or other employees,
shall not be'subject to this Basic Agreement and such sources
shall not constitute such person a writer hereunder: (a) Cut-
ting for time, (b) Bridging material necessitated by cutting for
time, (c) Changes in technical or stage directions, (d) Assign-
ment of lines to other existing characters occasioned by cast
changes, (e) Changes necessary to obtain continuity accept-
ance or legal clearance, (f) Casual minor adjustments in dia-
logue or narration made prior to or during the period of
principal photography, (g) Such changes in the course of
production as are made necessary by unforeseen contingen-
cies (e.g., the elements, accidents to performers, etc.), (h)
Instructions, directions, or suggestions , whether oral or writ-
ten, made to writer regarding story or teleplay." These latter
eight exceptions were referred to during the hearing, and will
be referred to herein as "A to H functions."
There is no dispute that a person writing an original story,
story outline, treatment, or finished script for television or
motion pictures is performing writing functions within the
meaning of the contract between the Respondent and the
various employers. Some persons who have written such
scripts may thereafter, if they have the capacities, be engaged
to produce those scripts or direct the photoplay made from
such a script. In such cases, such director, or the producer
9 Although the heading of article 14 would indicate that it applies only
to the "television" side of the industry, it is noted that Article 1,B,1, of the
agreement, which defines the term "writing" in the "theatrical" side of the
industry, also adopts the language of article 14
Article LA, 11, of the 1970 Networks basic agreement also states that
with limited exceptions the agreement "shall not nor is it intended to cover
the services of Producers, Directors, Story Supervisors, composers, non-
writing capacity .. "
WRITERS GUILD OF AMERICA, WEST, INC. 963
would have a separate agreement with the employer covering
such sources , in accordance with Respondent 's collective-
bargaining agreement. Some producers and directors who
have the capacity to write may have separate agreements with
their employers covering possible writing assignments even in
situations in which the employer does not actually require
them to write.
An issue arises, however, as to what writing is done on
scripts after the writer has delivered a finished script which
has been accepted by the employer, and who does such writ-
ing. Again there seems no question that numerous changes
are made in some scripts prior to principal photography,
during principal photography, and thereafter before release of
the film. Many of these changes, perhaps most, involve A to
H functions, and may be made by producers or directors or
story editors whether or not they are members of the Re-
spondent. It is indicated that prior to the strike, other changes
of a more substantial nature might be made in the script when
the producer or the director desired. Such changes would be
made by persons qualified under the applicable contract be-
tween Respondent and the employer.
Respondent argues, however, that even when management
executives and supervisors perform functions which have
been excluded from the bargaining agreements, such as A
through H functions, they are nevertheless performing writ-
ing functions within the jurisdiction of Respondent. The ar-
gument misses the point . It is not necessary to decide here
what constitutes writing, or even what different segments of
the industry might consider writing as such. The important
point is that when these executives and supervisors perform
those functions excluded from the Respondent 's bargaining
agreements they thereby perform functions which the parties
have acknowledged do not constitute work reserved to Re-
spondent's nonhyphenate members under the agreements,
but rather are accepted as a normal part of the duties and
responsibilities of the executives and supervisors (as hereina-
bove discussed) employed by the employers involved.10
V STRIKE RELATED ACTIVITIES
1. Respondent's strike rules
In February, the Respondent promulgated and distributed
to all its members , including hyphenates occupying positions
discussed above, a list of 31 RULES FOR CONDUCT OF
MEMBERS DURING A STRIKE. These received consider-
able publicity in the local papers and the trade press. Fifteen
of these strike rules relate, in whole or in part, to prohibitions
against writing for struck employers, or the submission of
literary material to such employers (Rules 2-11, 14, 16, 18,
23, 25). Various rules with which we are not particularly
concerned here deal with such matters as the use of fictitious
names (rule 15), acts of agents (rules 17, 20), individual
negotiations by members (rule 21), penalties provided by Re-
spondent's constitution and bylaws (rule 29), and enforce-
10 In some of the disciplinary teal transcripts, it is noted that Respon-
dent's counsel argued vigorously that functions excluded from Respon-
dent's agreements, such as A through H, were excluded because the eco-
nomic strength of the employers in bargaining. However, this is the classic
way in which management and supervisory rights and functions are differen-
tiated from rank-and-file functions under a bargaining agreement
ment of the rules by committees (rule 31). The remaining
rules in pertinent part , are as follows:
1. Any act or conduct which is prejudicial to the welfare
of the Guild is subject to disciplinary action. Conduct
tending to defeat a strike or in any way weaken its
effectiveness is per se conduct prejudicial to the wel-
fare of the Guild.
12. All members are prohibited from crossing a picket
line which is established by the Guild at any entrance
to the premises of a struck producer.
13. Members are prohibited from entering the premises
of any struck producer for the purpose of discussion
of the sale of material or contract of employment,
regardless of the time it is to take effect. Members are
also prohibited from entering the premises of any
struck producer for the purpose of viewing any film
... should a member find it necessary to visit the
premises of a struck producer for any reason apart
from the foregoing he should inform the Guild in
advance of the nature of such prospective visit.
19. A member may not, during the course of a strike,
conduct negotiations with a struck producer for fi-
nancing the production of any of his literary material
or scripts, or for his participation in such production
in any capacity.
22. A member is chargeable with knowledge of all strike
rules and regulations, . . . circularized through the
mail to the membership and of any strike information
made known . . . through . . . trade papers, newspa-
pers, radio broadcasts or telecasts... .
24. All members, regardless of the capacity in which
they are working, are bound by all strike rules and
regulations in the same manner and to the same extent
as members who confine their efforts to writing.
26. The term "member" encompasses anyone admitted
to the membership rolls of the Writers Guild of
America, both West and East, and classified as either
active or inactive, associate, withdrawn or suspended,
whether in good standing or bad.
27. No member may be relieved of the responsibility for
the payment of any fine, or from any disciplinary
action resulting from any infraction of strike rules by
offering his resignation from the Guild. Membership
in any guild or union is not a voluntary association of
parties but a binding contract between them which
cannot be abrogated unilaterally by either party ex-
cept under provisions of the Guild constitution or
state or federal law. It should be noted that fines levied
for infringement of strike rules are collectible in a suit
at law.
28. The Guild shall have the authority to assign and
direct members in the performance of duties relating
to the strike including, but not limited to, picket duty.
Any member found guilty of refusal to perform picket
duty shall be fined not less than $100 per day for each
day of such refusal to perform.
30. No member shall work with any individual, includ-
ing a writer-executive who has been suspended from
Guild membership by reason of his violation of strike
rules, or has been found by the Council to have vi-
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
olated strike rules, in the event no disciplinary action
was instituted against such person.
By means of meetings and publicity, and through personal
contact, memos, telegrams, and letters, -Respondent empha-
sized and confirmed that these rules would be -enforced
against the hyphenate-members." The hyphenate-members
were particularly vulnerable to pressure under rule 30 be-
cause in their primary work as producers, directors, story
editors, and executives, they would be unable to effectively
function in the future if writer-members of Respondent
refused to work for or with them. In telephone conversations
with certain of the hyphenates, agents of Respondent empha-
sized this consequence should the hyphenate cross the picket
line to work. The wife of one hyphenate-member was assured
that Respondent would end her husband's rather distin-
guished career by not permitting writers to work with him if
he crossed the picket line. On April 14 during the strike,
Respondent issued a press release, which received wide pub-
licity, concerning the filing of charges against "five writer-
producers", Jon Epstein, Cy Chermak, Herman Saunders,
David Victor, and Jack Webb, for "crossing a picket line for
the purpose of going to work for a struck company." The
release stated that in addition to other possible penalties, if
they were convicted, these men would, "according to Guild
officials", "appear on a `Roll of Dishonor,' " and "be listed in
Guild publications `in perpetuity so that Guild members for
years to come will never forget.' " The Guild official assert-
edly "characterized those members guilty of scabbing as 'pa-
riahs who have betrayed their colleagues.' "
After the issuance of the original consolidated complaint in
this-matter Respondent, on April 30, rescinded rule 30, and
by letter to all its members, dated May 7, advised:
Old Rule 30 provided that no member shall work with
any individual suspended or disciplined because of vi-
olating strike rules. The Guild's position has been, and
remains, that it will press disciplinary action as vigor-
ously as the law and good union principles permit,
against every member guilty of violating strike rules.
Because the old rule could be misconstrued to mean that
the Guild was maintaining an improper sanction, a mat-
ter of anathema to this Guild, the Board of Directors
rescinded old Rule 30 at its regular monthly meeting of
April 30, 1973. This action was taken voluntarily, in the
belief that ample disciplinary measures remain available
to trial committees, including penalties of fines, expul-
sion from membership and other sanctions, and with the
conviction that even in the pursuit of strike discipline,
members of the Guild do not wish to be a part of an
action which carries the odious implications of a "black
list."
i' One such communication was a telephone conversation between Her-
bert Wright, a producer, and Alan Griffiths, assistant executive director of
Respondent During the hearing, Respondent asserted a variance between
Wright's testimony and his affidavit held by the General Counsel and fur-
ther requested that I accept Wright's affidavit as substantive evidence under
the rule of evidence in California. See Starlite Manufacturing Company 172
NLRB 68, 71-73. The issue is not mentioned in Respondent's briefs. I have
carefully considered Wright's testimony and his affidavit, and I credit
Wright's testimony as given at the hearing Treating Wright's affidavit as
substantive evidence would not affect the findings made herem
2. Pressures on hyphenates by employers and others
As previously noted, the hyphenates here involved in most
cases had personal services agreements with their employers
to perform in their primary capacities as directors, producers,
story editors, and the like. It would also appear that many
were members of labor organizations representing them in
those capacities, some of which organizations, if not all, ap-
parently held bargaining contracts with the employers.
Prior to the strike, various employers parties to bargaining
contracts with Respondent sent communications to hyphen-
ates they employed insisting that they come in to work to
perform their regular functions other than writing in the
event of a strike. The following letter, in pertinent part, from
Twentieth Century-Fox Film Corporation is typical:
We intend to continue our operations and meet our con-
tractual and moral obligations to supply theatrical and
television motion pictures to our customers and the pub-
lic.
If you are a member of the Writers Guild you may have
received from the Guild a set of rules purporting to
govern your conduct during the strike "regardless of the
capacity" in which you are employed. We also under-
stand that the Guild may have threatened you with fines
and blacklisting in the event it calls a strike and you
render services for us in any capacity or you fail to report
for picket duty. Any attempt of the Guild to interfere
with your services for us in a capacity other than as a
writer is unlawful and the Guild's threat of fines, cen-
sure, expulsion and blacklisting is unenforceable.
We expect you to fulfill your contractual obligations to
us as a supervisor12 and report to work notwithstand-
ing any picket lines or other attempt to interfere with
your complying with your contractual obligations. We
trust that you understand that we will have no alterna-
tive but to resort to our legal rights and remedies in the
event of a failure on your part to do so. Should the Guild
attempt to fine or otherwise discipline you for meeting
such obligations to us, you will be provided with a de-
fense to any such proceeding, without cost to you, and
you will be indemnified against any fine which might be
imposed and which is legally sustained.
Prior to sending these letters, the members of the AMPTP
and the networks had determined that they would not require
the hyphenate-members of Respondent to write during the
strike.
In addition to these letters, it appears that the hyphenates
were placed under certain pressure to perform by the unions
holding contracts with the employers covering the principal
function for which the hyphenate was employed. Thus, ac-
cording to a counsel for the Directors Guild, at the time of
the Respondent's strike, the Director's Guild held a no-strike
contract with employers of hyphenates working as directors,
assistant directors, and unit production-managers, and felt
obligated to inform its members that if they refused to render
12 At this point some employers inserted the specific function, e g , direc-
tor, producer, etc , for which the individual was engaged by that employer.
WRITERS GUILD OF AMERICA, WEST, INC. 965
services covered by the bargaining agreement and the hy-
phenate's personal service contracts (other than writing),
they would be subject to suits for large damages and other
penalties.l3
3. Enforcement of Respondent's strike rules
As has been previously noted, Respondent, by issuance of
the strike rules, by a meeting with the hyphenate-members
prior to the strike, by communications and publicity, empha-
sized that it would take disciplinary action against the hyphen-
ates who went to work during the strike in any capacity. The
hyphenates held meetings of their own to determine the
proper course to follow.
Some hyphenates went to work. The record shows that a
number of the hyphenates (I would assume most of them, if
not all) advised their employers that they would do no wnt-
ing, but would only perform services under their personal
services contracts as producers, directors, etc., as the case
might be. There is evidence that Respondent was informed of
this. 14
During the various disciplinary trials of the hyphenates
who worked during the strike, Respondent, as noted above,
for the most part professed little or no interest in what kind
of work was done during the strike, and presented no proof
that the work done by the hyphenates was covered by the
recently terminated contracts held by Respondent.15 The
evidence is that the hyphenates who worked during the strike
performed the normal functions of the primary positions for
which they were employed prior to the strike, e.g., director,
producer, story editor, etc., or in some other executive posi-
tion, and exercised the authority appertaining to such
positions. 16
13 This statement was made during the disciplinary trial of John Michael
Crichton There are indications of similar action by the Producers Guild,
and legal action taken against that union by Respondent.
14 Frank R Pierson, a producer, advised Respondent that he had a per-
sonal services contract to produce a film which he intended to perform
during the strike, that the script was finished and no more writing services
would be performed. Pierson offered to provide and did later provide a copy
of the final shooting script so that Respondent "could compare it with the
shooting continuity . . to see whether . anyone had indeed done any
writing " Herbert Wright, after informing Respondent that he would work
only as an associate producer and was not employed to write, nor would he
write, was advised that he would be in violation of the strike rules if he went
to work Crichton, who performed as a director during the strike, also
informed Respondent that he had ceased writing on the project and testified
that Respondent could confirm this During his disciplinary hearing it ap-
peals that Crichton's employer did provide means for confirming this. Paris,
an executive story editor informed Respondent that he would work in an
executive capacity. Trapnell, also an executive story editor, did work as an
executive during the strike
15 It was stipulated at the hearing in this matter that counsel for the
Respondent who participated in the disciplinary hearings instituted by Re-
spondent would testify that he took the position at such hearings that the
hyphenates charged "are subject to discipline for crossing Respondent's
picket line without regard to whether they cross the picket line for the
purpose of performing bargaining [unit] services for a struck employer or
not. And that the charges will properly lie for crossing the picket line even
if the person charged has given assurances to a representative of
[Respondent] that he is not and will not perform any [writing] services for
the struck employer."
16 E g, Robert A. Cinader, during his disciplinary hearing, referred to the
adjustment of a dispute between a cameraman and an actor and others;
Producer Albert S. Ruddy testified to hiring a lead actor, others asserted
From April 6 through November 8, 1973, Respondent
notified more than 30 hyphenate-members that they had been
charged with violation of Respondent's strike rules and set
hearings on the charges. The only rules alleged to have been
violated were rules 1, 12, 13, and 28. Most hyphenates were
alleged to have violated rules 1, 12, and 13; some only rules
12 and 13; some rules 1, 12, 13, and 28; some rules 12, 13,
and 28, and one only rule 12. Typical of the language of the
charges is the following:
NOTICE IS HEREBY GIVEN that you are charged with viola-
tion of the Guild's Strike Orders and Sections 1, 12, 13,
and 28 of the Rules for the Conduct of Members during
a Strike, dated February 20, 1973, as amended May 1,
1973, copies of which is attached hereto.
Specifically, you are charged with: (1) having crossed the
Guild's picket lines at CBS Studio Center, during the
months of March, April, May and June 1973, without
having informed the Guild in advance of the nature of
your business with said company and without having
obtained a Guild pass to enter said premises; (2) having
during the months of March, April, May and June 1973,
rendered services for Columbia Broadcasting System,
Inc., a company against whom the Guild was at such
times on strike; and (3) refusing to perform picket duties
during the strike after having been requested to do so by
representatives of the Guild.17
The record contains the transcript of disciplinary trials of
15 of those charged. The charges against at least one of these
were dismissed. From June 25 through September 28, 1973,
Respondent's board of directors issued the following discipli-
nary penalties against 10 hyphenate-members, in addition to
costs of the hearing: Two were expelled from membership
and fined $50,000 each; one was expelled from membership
and fined $10,000; one was suspended from membership for
2 years and fined $10,000; one was suspended for 2 years and
fined $7,500; one was suspended for 3 years and fined $5,000;
one was expelled from membership and fined $2,000; one was
expelled and fined $100; and one was suspended for 2 years
and fined $100.18 These penalties received wide publicity in
the local press and trade papers. The appeals of nine of these
men has been voted on by Respondent's membership at a
special meeting and the penalties were drastically reduced.
Apparently all remaining actions with respect to discipline of
hyphenate-members for working during the strike are now
being held in abeyance pending resolution of these cases.
their general function and authority as supervisors and in the adjustment of
grievances.
17 Testimony by Respondent's officials in the disciplinary hearings makes
clear that passes would not have been granted to hyphenates to go in to work
as producers, directors, or the like, even if requested. It is also noted that
some hyphenates did agree to perform picket duty at some places notwith-
standing they were crossing other picket lines, which, understandably,
tended to create some confusion
18 The 10 hyphenates penalized for violation of Respondent's strike rules
were Hugh Benson, Robert Blees, Cy Chermack, Jon Epstein, David Levin-
son, John Mantley, Herman Saunders, David Victor, Robert Cinader, and
Barry Crane No disciplinary hearing transcript for Crane appears in the
record
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI THE REQUESTS FOR ARBITRATION
During the course of the strike , by letter dated April 28,
1973, Respondent made certain requests for arbitration upon
AMPTP and the Networks, with carbon copy to the Board's
Regional Director. The following letter to AMPTP sets forth
the basis for the requests:
Gentlemen:
Reference is made to the Writers Guild of America 1970
Theatrical and Television Film Basic Agreement
("Agreement"). A dispute exists between the Guild on
the one hand and the Association its member companies
on the other hand concerning the interpretation of the
terms of the Agreement and their application and effect
with respect to the effect of the current strike by the
Guild on the employment contracts of its members and
the claimed right of yourself and the companies to com-
plain of the Guild's enforcement of its strike rules with
respect to all its members, including those employed in
other capacities. The Guild submits the following ques-
tions to grievance and arbitration:
1. Whether by virtue of the provisions of said Agree-
ment, and particularly Article 7, all contracts of mem-
bers of the Guild with employer companies as to whom
the Guild is on strike have been suspended , including the
contracts of all members no matter in what capacities
they have been employed; and
2. Whether by virtue of the provisions of said Agree-
ment, and particularly Article 7, the definition of writer,
and other provisions, the Association and the Compa-
nies have waived the right to designate or select members
of the Guild as representatives of employers for the pur-
poses of collective bargaining or the adjustment of griev-
ances and the right to complain of discipline threatened
or imposed by the Guild on any of its members.
This will constitute a notice of grievance in accordance
with the provisions of the Agreement with you and your
member companies that the Guild submits the dispute to
grievance and arbitration pursuant to the provisions of
Articles 10, 11, and l2 of the Agreement . In that connec-
tion, the Guild is willing to waive the grievance step and
proceed directly into arbitration.
By letters dated May 14 and 18, AMPTP and the Net-
works replied denying Respondent 's grievance and request
for arbitration. The pertinent part of the AMPTP letter, in
substance similar to the Network's reply, is as follows:
This is in response to your letter of April 28, 1973, in
which you claimed that there is a dispute between the
Guild and the Association and its member companies
concerning the interpretation an application of the terms
of the ... ("Agreement") in connection with the cur-
rent strike of the Guild.
In view of the legal nature of the questions raised by you,
and by virtue of the fact that your letter was obviously
an effort to make a record for purposes of the imminent
National Labor Relations Board proceeding in which a
complaint has been issued against the Guild , your letter
was carefully reviewed by our attorneys.
Your request to arbitrate the foregoing issues is hereby
denied for the following reasons:
1. The Grievance and Arbitration procedure which you
seek to invoke is no longer in effect between the Guild
and the members of the Association as to any matters
arising subsequent to March 5, 1973. By your letter of
February 2, 1973, you terminated the collective bargain-
ing agreement containing these provisions effective
March 4, 1973.-Additionally, after we had reached an
impasse by letter of March 27, 1973, we advised you that
effective April 2, 1973, our member companies intended
to effectuate certain changes in working conditions in-
cluding that they would no longer apply the Grievance
Arbitration provisions of the Agreement, except as to
matters arising before March 5, 1973. You were given an
opportunity to bargain about this intended change but
failed to do so and on April 2, 1973, said change was
implemented.
2. There is no colorable claim that could be made for the
applicability of the Grievance and Arbitration Proce-
dure of the Agreement to the two issues raised by you
even if such Grievance and Arbitration Procedure were
still available. The effect of Article 7 upon the status of
individual employment cannot possibly be subject to
grievance , or arbitration, inasmuch as the status of such
agreements is expressly excluded from grievance and
arbitration. There is not a word in the entire Agreement
which would support the position taken in the second
issue which you have posed . You have heretofore ad-
vanced this theory unsuccessfully to the General Coun-
sel of the National Labor Relations Board . You will no
doubt urge it again in the impending hearing on the
complaint issued by the General Counsel.
In Respondent 's answer to the complaint, it raised three
affirmative defenses based on the above . In the first two
"special defenses," Respondent asserted, almost in haec
verba, the two positions set forth above, which would have
required the Board to interpret the agreement, or find the
defenses irrelevant . In its original brief, as previously noted,
Respondent has withdrawn these two defenses . In Respon-
dent's "Third Separate Special Defense," Respondent recites
the fact that it has requested the Association and the Net-
works to arbitrate the two issues set forth, and concludes. "In
view of the pendency of the above described arbitration pro-
ceedings, Respondent respectfully requests that the issues
raised in the Second Consolidated Amended Complaint be
deferred to arbitration and the Board retain jurisdiction
pending the arbitral decision thereof."
Analysis and Conclusions
Under Section 8 (b)(l)(B) of the Act it is an unfair labor
practice for a labor organization "to restrain or coerce . . .
an employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of griev-
ances." The Board, in a series of cases, some of which are
discussed in Florida Power & Light Co., supra, has previously
held that action by a union to restrain or coerce the perfor-
mance of duties by supervisors who were or might be selected
WRITERS GUILD OF AMERICA, WEST,-INC. 967
by their employers for the purposes of collective bargaining
or adjustment of grievances violates that section of the stat-
ute. Thus it has been held that union threats to discipline
supervisors for allegedly violating bargaining agreements or
asserted practices or policies of the union , charges brought by
a union -against such supervisors , trials held, and penalties
levied against them for contravening the purposes and direc-
tives of the union were prohibited by this section of the law,
on the ground that such action subverted the loyalties the
employer was entitled to expect from the supervisor in the
performance of his functions and deprived the employer of
the supervisor whom the employer had selected-or poten-
tially might select-to represent the employer for purposes of
collective bargaining or adjustment of grievances. In the two
cases considered by the Supreme Court in Florida Power &
Light, the Board had held that union discipline of union-
member supervisors who had crossed union picket lines and
performed rank and file struck work during the strikes in-
volved there thus violated Section 8(b)(1)(B). The Court of
Appeals for the District of Columbia , which considered these
cases, disagreed . As stated by the Supreme Court, p. 797:
In a 5-4 decision , the court [of appeals] held that
"[S]ection 8(b)(1)(B) cannot reasonably be read to pro-
hibit discipline of union members-supervisors though
they be-for performance of rank-and-file struck work,"
.. . and accordingly refused to enforce the Board's or-
ders. Section 8 (b)(1)(B), the court held, was intended to
proscribe only union efforts to discipline supervisors for
their actions in representing management in collective
bargaining and the adjustment of grievances . It was the
court 's view that when a supervisor forsakes his supervi-
sory role to do work normally performed by nonsupervi-
sory employees, he no longer acts as a managerial repre-
sentative and hence "no longer merits any immunity
from discipline." . .. 487 F . 2d, at 1157. We granted
certiorari 414 U.S. 1156, to consider an important and
novel question of federal labor law.
The Supreme Court itself affirmed the court of appeals by
a vote of 5-4, holding that the legislative history of the perti-
nent amendments to the Act made it clear that in enacting
Section 8(b)(1)(B), "Congress was exclusively concerned with
union attempts to dictate to employers who would represent
them in collective bargaining and grievance adjustment" (p.
803), and not the general problem of the supervisor 's conflict
of loyalty as between his employer and his union. As the
Supreme Court said (p. 804):
Nowhere in the legislative history is there to be found
any implication that Congress sought to extend protec-
tion to the employer from union restraint or coercion
when engaged in any activity other than the selection of
its representatives for the purposes of collective bargain-
ing and grievance adjustment . The conclusion is thus
inescapable that a union 's discipline of one of its mem-
bers who is a supervisory employee can constitute a
violation of §8(b)( 1)(B) only when that discipline may
adversely affect the supervisor 's conduct in performing
the duties of, and acting in his capacity as, grievance
adjuster or collective bargainer on behalf of the em-
ployer.
The Court then noted that in the cases before it (Florida
Power & Light and Illinois Bell) "it is certain that these
supervisors were not engaged in collective bargaining or
grievance adjustment , or in any activities related thereto,
when they crossed union picket lines during an economic
strike to engage in rank -and-file struck work ." (p. 805.)
The Court concluded , "for these reasons, we hold that the
respondent unions did not violate §8(b)(1)(B) of the Act when
they disciplined their supervisor -members for performing
rank-and-file struck work." (p. 813.)
In coming to this conclusion , the Court also noted that the
result was not inequitable , inasmuch as it derived from the
options exercised 1) by the employers in recognizing the
unions as representatives of these supervisors under the union
contracts , and 2) by the supervisors in becoming and remain-
ing members of the unions for their own benefit. As to the
supervisors , the Court stated, in pertinent part (p.812, fn. 22):
There can be no denying that the supervisors involved
in the present cases found themselves in something of a
dilemma and were pulled by conflicting loyalties. -But
inherent in the option afforded the employer by Con-
gress, must be the recognition that supervisors permitted
by their employers to maintain union membership will
necessarily incur obligations to the union . . . . And,
while both the employer and the union may have con-
flicting but nonetheless legitimate expectations of loyalty
from supervisor-members during a strike, the fact that
the supervisor will in some measure be the beneficiary of
any advantages secured by the union through the strike
makes it inherently inequitable that he be allowed to
function as a strikebreaker without incurring union
sanctions.
The supervisor-member is , of course , not bound to
retain his union membership absent a union security
clause, and if, for whatever reason , he chooses to resign
from the union , thereby relinquising his union benefits,
he could no longer be disciplined by the union for work-
ing during a strike. . . .
In these cases , the supervisors' dilemma has been
somewhat exaggerated . . . in Illinois Bell, the company
did not command its supervisors to work during the
strike and expressly left the decision to each individual.
Those who chose not to work were not penalized, and
some were in fact promoted by their employer after the
strike had ended . Those who did work during the strike
but performed only their regular duties were not disci-
plined by the union . In Florida Power, the record does
not disclose whether the supervisors crossed the picket
lines at the company's request or not, but in any event,
the union did not discipline those who did so only to
perform their normal supervisory functions.
Similarly , in N.L.R.B. v. San Francisco Typographical
Union No. 21, International Typographical Union
[California Newspapers, Inc.], 486 F.2d 1347 (C.A. 9, 1973)
(also relied on by Respondent), where the Board had found
the union there involved had violated Section 8(b)(1)(B) by
disciplining supervisor-members for crossing the union's
picket lines, the court held that "the Board 's broad interpre-
tation of Section 8(b)(1)(B) . . . is an unjustified extension of
the limited language of Section 8(b)(1)(B ). Had the members
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elected to resign from the union, the power of the Union over
them would have ended. But here the members remained in
the Union, and therefore continued to be subject to their
obligations as members." The court also noted that although
those disciplined were supervisors, "the Union did not punish
them for exercising any management duty." (486 F.2d at
1349-50.)
Compare Scofield (Wisconsin Motor Corp.) v. N.LR.B.,
394 U.S. 423 (1969), where, in the course of holding that
Section 8(b)(1)(A) did not proscribe a union's enforcement of
productivity ceilings through the discipline of members, the
Supreme Court stated (p. 430), " . , . Section 8(b)(1) leaves
a union free to enforce a properly adopted rule which reflects
a legitimate interest, impairs no policy Congress has imbed-
ded in the labor laws, and is reasonably enforced against
union members who are free to leave the union and escape the
rule. " [Emphasis supplied.]
In this case we are concerned with certain supervisory,
executive, and managerial personnel (referred to as hyphen-
ates) principally employed to perform functions not covered
by Respondent's collective-bargaining agreements (which
agreements provide for the conditions of employment and the
recompense of writers who furnish certain writing services to
the television and theatrical industries), but who are never-
theless members of Respondent and who on occasion may do
work properly falling within the terms of those bargaining
agreements . The case involves the attempts of Respondent to
coerce and restrain those hypenates from going to work in-
any capacity during the course of a strike by Respondent
against the hyphenates' employers over the terms for renewal
of Respondent's bargaining agreements . Respondent promul-
gated and distributed strike rules to all its members forbid-
ding the members to go to work in any capacity during the
strike. These received wide publicity. These were further en-
forced by personal and written communications , and at Re-
spondent's meetings with the hyphenates, to impress on them
that the strike rules applied to the hyphenates and would be
enforced against them. " Some hyphenates who allegedly vi-
olated one or more of the strike rules were charged, tried
before trial boards of Respondent, and when convicted were
disciplined.
During this same period, Respondent also had and en-
forces a policy, well known to the hyphenates, under which
Respondent refused to permit such hyphenate-members to
resign from membership prior to or during the strike.
At the same time , many of the hyphenates, probably most,
were obligated to perform their primary managerial and
supervisory functions under personal service contracts with
their employers. Prior to the strike the hyphenates were in-
formed by their employers that they would be expected to
fulfill their contracts and come in to perform their normal
work during the strike. In some cases, perhaps most, these
primary functions were also covered by collective-bargaining
agreements with other labor organizations requiring that the
hyphenates not engage in strikes. At least one or two such
19 Originally one of the rules, later officially rescinded, provided for the
perpetual ostracism of any hyphenate working during the strike, which
would clearly have wrecked the further careers of such persons. The impact
of the rule itself, as well as the indication of the implacable attitude which
prompted it, were clearly coercive of the hyphenates' freedom of action
unions directed their hyphenate-members to perform during
the strike in accordance with that union's contract.
It is clear, as has been found, that the normal performance
of the hyphenates' primary functions involves the adjustment
of employee grievances, and, in the case of producers on
distant location, to engage in collective bargaining with labor
organizations . Those hyphenates charged by Respondent
with violation of its strike rules, who testified in this hearing
or before Respondent's trial boards denied performing any
writing function during the strike other than that which had
been commonly agreed in the past to be permissible for
hyphenates performing supervisory and managerial func-
tions. Indeed, the employers had determined in advance not
to require writing of the hyphenates who worked during the
strike. Evidence was offered to Respondent by certain hyphen-
ates to substantiate the fact that those hyphenates, though
working during the strike, nevertheless did no writing. Re-
spondent, indeed, points to no instance of any hyphenate
doing any "rank and file" work during the strike. In its
original brief, Respondent stated its position as follows, in
pertinent part:
... we believe that the record here supports an infer-
ence that hyphenate Guild members who crossed picket
lines necessarily performed services of a non-supervisory
character which bring them within [the Court of Ap-
peals' decisions in Illinois Bell and California
Newspapers].
Virtually all of the hyphenate writers called as witnesses
by General Counsel conceded that they performed only
(a) through (h) writing functions which, upon their view,
were not strike defeating because such services were out-
side the coverage of the Guild contract. . . .
Rather, it is our contention that such writing falls within
the prohibitions of [Respondent's strike rules] and that
the scope of such rules was legally permissible... .
The permissible scope of the strike rules, as to hyphen-
ates, can only be judged fairly in connection with the
production activities of the struck employers which the
Guild had the right to frustrate . . . the most critical
service of the producers is the finding and participation
in the hiring of writers . . . while this is a statutory
supervisional function, nevertheless, in a strike situation
the performance of this non-writing function requires
the producer to be the active recruiter of strike-breaking
writers. The average foreman union member in an indus-
trial plant is not in a strike situation, normally called
upon to act as the principal recruiter of strike
breakers.
In order to perform under his producer contract, the
hyphenate Guild member necessarily must place himself
directly in direct opposition to the strike strategy of the
Guild and, at the same time, be free from the normal
discipline imposed upon strike-breakers. The matter of
disloyalty arises from the continued performance of the
hiring function itself.20
20 In its supplementary brief, Respondents states that while it considers
the "record as a whole" supports a finding that "rank and file" work was
done, its position is that Florida Power makes the finding "irrelevant."
' (Supp. brief p 5)
WRITERS GUILD OF AMERICA, WEST, INC. 969
These arguments, however, do not meet the issue. The fact
is that, according to the record, such writing as the hyphen-
ates did during the strike was limited to that commonly
accepted in the industry as part of the managerial and super-
visory function and thus was not rank-and-file work. I so
find. Indeed, although a number of Respondent's strike rules
forbade writing for struck employers, none of the hyphenates
was charged with violating those rules. It was stipulated that
Respondent's counsel, during the disciplinary hearings, was
not concerned with what work the hyphenates did when
working during the strike.
In its supplementary brief, Respondent argues that it
would be difficult to determine in these cases what the super-
visors did after they went to work during a strike, for the
supervisors and employers would not likely cooperate. How-
ever, in the one instance in which Respondent's trial panel is
shown to have requested evidence, it was supplied by the
employer. In another instance the hyphenate supplied evi-
dence voluntarily, without request. In one of the disciplinary
trials there was testimony by a union member that when he
returned to work after the strike, he found no writing that had
been done by a hyphenate (with whom the member was
closely associated) who had worked during the strike, the
ummon member stating that he was satisfied that some writing
had been done by an executive who was not a member of
Respondent. From this it seems clear that if hyphenates
working during the strike had performed rank-and-file work,
Respondent had means for discovering it.
Though the evidence is sparse, the record indicates that
during the strike, where the situation arose, the hyphenates
dealt with grievances of employees who worked during the
strike, or, in any event, were available to deal with such
matters in their normal capacities when and if such griev-
ances arose.
Further, it has long been established that an employer may
legally employ replacements for striking employees during a
strike (in union terminology "strikebreakers") see N.L.R.B.
v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345. Thus
action by managerial or supervisory employees in recruiting
employees during_a strike would manifestly fall within the
normal functions of such persons. There is no evidence of
which I am aware that any hyphenate performing as a pro-
ducer during the strike (as argued by Respondent) recruited
or hired a writer during the strike-for the most part the
evidence is that such producers were involved with scripts
already written and ready for production but if any such
writer were recruited or hired by a producer, this was clearly
a proper managerial or supervisory function.
Nor is it material, in the circumstances of this case, that by
going in to work at managerial and supervisory functions
during the strike, hyphenate-members frustrated Respon-
dent's strike strategy, or provided the employers with more
economic clout than they otherwise might have possessed.
Respondent cannot deny the hyphenates the right to resign
from membership, and thus be free of the obligations of mem-
bership, while at the same time argue that because the hyphen-
ates continued to be members they cannot be "free from the
normal discipline imposed upon strike breakers." It was well
known among the hyphenates that Respondent would not
permit them to resign prior to or during the strike. At least
one hyphenate's attempt to resign from membership in Re-
spondent during this period was rejected. It is, of course, not
known how many hyphenates would have resigned if this had
been an option available to them. It is inferred that at least
those who went back to work during the strike would have
done so, and possibly others. The rights of the hyphenates
and their employers are not reduced because the exercise of
those rights might make Respondent's position more dif-
ficult.
The -results of the strike would be of only problematical
benefit to many of the hyphenates involved. Respondent's
contracts did not cover the hyphenates' managerial and
supervisory functions (as was the situation in Florida
Power) and would have benefited the hyphenates only if they
engaged in writing covered by the bargaining agreements.
There was testimony from a number of hyphenates that they
had done no substantial writing of such character for a con-
siderable number of years. There is little indication that the
hyphenates received other substantial benefits from their
membership in Respondent, except that derived from being
part of the writing community which provided significant
contacts with writer-members of Respondent, a sense of pride
in belonging to the organization, and, perhaps most impor-
tant, providing the hyphenate with a wider range of capabili-
ties and thus enhancing his usefulness to his employer.
It has been previously found that those hyphenates occupy-
ing the positions of executive producers, producers, associate
producers, directors, story editors, story consultants, script
consultants, executive story editors, and executive story con-
sultants, as considered hereinabove, are supervisors within
the meaning of Section 2(11) of the Act selected by their
employers to adjust grievances, and, in the case of the pro-
ducer function, to negotiate agreements with labor organiza-
tions within the meaning of Section 8(b)(1)(B) of the Act. On
the basis of the above discussion and the record as a whole
it is found that by issuing strike rules designed to compel such
hyphenates from going to work during the strike called by
Respondent, and by meetings, personal contacts, telegrams,
and phone calls designed to restrain and coerce such hyphen-
ates from going to work during the strike, Respondent re-
strained and coerced the hyphenates from performing
managerial and supervisory services for their employers dur-
ing the strike, including the adjustment of employee griev-
ances and participation in collective bargaining, and thus
coerced and restrained those employers in the selection of
representatives for collective bargaining and the adjustment
of grievances within the meaning of Section 8(b)(1)(B); that
those hyphenates involved in this matter who worked during
the strike performed managerial and supervisory functions
including the adjustment of grievances on collective bargain-
ing as required, and did not perform rank-and-file work; and
that by charging, trying, and disciplining such hyphenates
who worked during the strike in such circumstances, Re-
spondent further coerced and restrained the employers in the
selection of their representatives for the purposes of collective
bargaining within the meaning of Section 8(b)(1)(B) of the
Act. It is therefore found that Respondent, by the activities
set forth above, violated Section 8(b)(1)(B) of the Act.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Incoming to this conclusion, I have given careful consider-
ation to Respondent's contention that the Supreme Court in
Florida Power, not only disapproved of the Board's finding
that a violation of Section 8(b)(1)(B) had occurred in those
cases, in effect held that coercion, restraint, and discipline of
supervisor-members by a labor organization for working dur-
ing a strike cannot be held by the Board to violate the Act.
I disagree. It is clear that Respondent's action in this case
violated the plain meaning of the statute without the necessity
of resort to statutory exegesis. To illustrate: A person per-
forming the function of a director acts in a managerial or
supervisory capacity, which normally includes the adjust-
ment of grievances of actors, actresses, craft employees, and
others. One occupying the position of a producer normally
has a similar capacity and similar duties with respect to em-
ployee grievances. In addition, if the film is being shot on
distant location, the producer has authority to negotiate on-
the-spot agreements with local unions. Thus when Respond-
ent prevented or sought to prevent, such hyphenate-members
from going to work in their managerial and supervisory capa-
cities as producers and directors during the strike, Respond-
ent obviously coerced and restrained their employers in the
selection of those specific producers and directors for the
purpose of collective bargaining and the adjustment of griev-
ances of employees working during the strike within the plain
meaning of the statute. Similarly, those persons employed as
story editors or in like classifications perform executive func-
tions normally, and appear to have done so during the strike,
in which the record indicates they were engaged as supervi-
sors and actual or potential representatives of their employers
for the adjustment of grievances.21 Respondent, by coercing
or restraining persons in these classifications from going in to
do their normal work thereby actually coerced and restrained
their employers from selecting those persons as the employ-
ers' representatives for the adjustment of grievances and for
-collective bargaining during the strike.
The General Counsel also contends that Respondent's rule
restricting the right of hyphenate-members to resign from
membership should also be found to violate the Act. This
raises what seems to me a quite important and difficult issue,
one which may well have different consequences for supervi-
sors as distinguished from rank and file employees .22 1 do
not, however, have to determine these matters in this case.
21 As previously noted, two executive story editors, Paris and Trapnell,
appear to have worked as executives during the strike. According to the
disciplinary transcript, Trapnell is a supervisor over story analysts who
apparently did not strike.
22 As to the rank-and-file employees, since they are compelled by law to
accept labor organizations chosen by the majority in the unit, and may be
compelled to join or assist such unions even if violently opposed to them,
and to comply with their rules even if personally obnoxious to the employees
involved, it may well be argued that such employees should be afforded
reasonable opportunity at proper times to resign their membership in such
organizations and escape the imposition of such rules Some commentators
who have considered the subject indicate that this is a likely direction of the
law See Restrictions on the Right to Resign: Can a Member's Freedom to
Escape the Union Rule Be Overcome by Union Boilerplate?, 42 Geo. Wash
L. Rev 397 (1974), 26 Vand. L Rev 837 (1973); Union Disciplinary Fines
and the Right to Resign, 30 Wash. & Lee L Rev. 664 (1973); 5 St Mary's
L J 176 (1973), 40 Geo Wash L Rev 330 (1971) There may be, as the
Court of Appeals for the First Circuit has indicated, " . a limit of reason-
ableness beyond which a union may not be permitted to go in holding
captive its members." See NL R.B v. International Union, UnitedAutomo-
bile Workers [John I. Paulding, Inc.], 297 F.2d 272, 276 (1961).
The General Counsel did not allege this matter as a violation
of the Act in his complaint, nor put it properly in issue during
the hearing. In the circumstances, I do not pass on the issue.
Lastly, I have carefully considered Respondent's conten-
tion that certain issues should be referred to arbitration and
the complaint in this proceeding be dismissed. I have deter-
mined that this contention should be denied for the follow-
ing reasons:
1. The parties have not agreed that the issues presented by
the complaint in this matter should be determined by arbitra-
tion. The bargaining agreements held by Respondent which
expired on or about March 4, or shortly thereafter, contain
no restriction on Respondent's issuance of strike rules, or, on
its right to restrain members to comply with its rules, or on
Respondent's right to discipline its members, or on Respon-
dent's right to strike when it did. Respondent, indeed, does
not claim that there were any contractual provisions which
forbade or approved of such actions. It does claim that there
was a contractual provision which would have protected the
hyphenates if they desired to respect Respondent's picket
line." The employers, on their part, refer to provisions of
the agreements in support of their contentions that the agree-
ments do not cover or apply to the functions performed by
the hyphenates, and further that these provisions of article 7
are specifically exempted from arbitration. There is no need
to consider the merits of these contentions. We are not here
concerned with -whether there was agreement that these
hyphenate-members of Respondent could respect Respon-
dent's picket lines or its strike call with impunity from action
by the employers, but we are concerned with whether the
Respondent may legally restrain and coerce the hyphenate-
members from going to work, at the insistence of their em-
ployers, to perform functions not covered by Respondent's
contracts, and whether Respondent may discipline such
members for going to work in such circumstances. No con-
tractual basis appears and Respondent points to none which
would authorize an arbitrator to pass on such issues.24
Assuming, without deciding, that the employers had
agreed to absolve Respondent's hyphenate-members of all
liability for breach of their personal services contracts (which,
as noted, the employers vigorously dispute), it does not fol-
low, as Respondent argues, that the employers thereby agreed
not to ask, direct, or insist that such members come in to
work, or agreed that the employers would not select such
members as their representatives for adjustment of grievances
or collective bargaining, or that the employers agreed that
Respondent could restrain or coerce the members not to
23 Section 2, article 7, in certain expired agreements provided, in pertinent
part, that "If, after the expiration or other termination of the effective term
of this Basic Agreement, the [Respondent] shall call a strike against any
Company, then each respective current employment contract of writer
members of [Respondent] (hereinafter . referred to as `members') with
such Company shall be deemed automatically suspended, both as a service
and compensation, where such strike is in effect, and each such member of
[Respondent] shall incur no liability for breach of his respective employment
contract by respecting such strike call .. .
24 Cf. Houston Mailers Union No 36 (Houston Chronicle), 199 NLRB 309
(1972), relied on by Respondent, in which the Board held that where the
employer and the union there involved had specifically agreed in their
bargaining agreement that the union "shall not discipline the foreman," and
where the only issue before the Board concerned discipline of a foreman by
the union, the Board deferred to the arbitration process in accordance with
the bargaining agreement of the parties.
WRITERS GUILD OE AMERICA, WEST, INC.
work, or, if the members did come in to work at the employ-
ers' insistence, that Respondent could discipline the members
for doing so.
2. There is substantial doubt that Respondent's actions
which are the basis for the complaint in this matter are sub-
ject to arbitration in any event. Almost all of Respondent's
conduct with which we are here concerned, including the
charges against the hyphenates, the disciplinary trials and the
penalties imposed, occurred after the termination of the bar-
gaining agreements and at a time when neither Respondent
not the employers had consented to arbitration of their ac-
tions.
3. The legal issues involved in this proceeding are matters
of importance to the administration of the Act, as shown by
the Supreme Court's recent decision in Florida Power. The
application of the principles laid down in that decision and
the development of the law in this area should be made by the
Board in a unified and consistent fashion and not delegated
to the diverse opinions of various arbitrators who have nei-
ther been selected to administer the Act nor sworn to do so.
This matter is highly complex and involves many factual and
legal issues having little or no relation to contractual ques-
tions. The parties have spent much time litigating these issues
and at considerable expense. It would seem to me an act of
administrative abnegation of duty to tell the parties to start
over again before another tribunal when the proceeding has
already been tried before the agency appointed by Congress
to hear and decide the issues.
CONCLUSIONS OF LAW
1. The employer members of the Association of Motion
Picture and Television Producers, Inc., American Broadcast-
ing Companies, Inc., Columbia Broadcasting System, Inc.,
National Broadcasting Company, Inc., and QM Productions
(herein collectively referred to as "the employers") are, and
each of them is, employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Writers Guild of America, West, Inc., is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By restraining and coercing the employers of hyphenate-
members of the Respondent, and of the employers, in the
selection of their representatives for the purpose of collective
bargaining or the adjustment of grievances, as found hereina-
bove, the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(b)(1)(B)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices in violation of Section 8(b)(1)(B) of the Act, it will
be i ecommended that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
The record is convincing that Respondent, well aware of
the primary supervisory , management, and executive func-
tions of its hyphenate-members, drafted its strike rules and
enforced them with the intent of compelling those hyphenate-
971
members from going to work during the, strike, without re-
gard to the capacity in which they performed or the work
done. In particular, by threatening to blacklist in perpetuity
such hyphenates who worked during the strike, the rules
threatened to drive those hyphenates out of the industry.
Though the mandatory effect of the rule was rescinded (see
Resp. Exh. 11), there are other indications that Rspondent's
actions encourage a voluntary blacklist. Thus, in its letter to
members explaining their options on appeals from penalties
imposed upon certain hyphenates who worked, Respondent
stated, inter alia, "There is obviously a stigma attached to
expulsion which might cause individual members of the
[Respondent] to refrain from working for such a person. The
Guild itself cannot order its members to refrain from working
with an individual merely because he was expelled." (Resp.
Exh. 12.) In at least one instance, in the disciplinary tran-
script relating to Robert Blees, a writer-member of Respond-
ent expressed his intent not to work with Blees because the
latter had worked during the strike, though the writer-mem-
ber acknowledged that he was under no compulsion from
Respondent to take that position. I fully realize that this
member as well as others might have adopted this position
even if Respondent had not suggested it by its rule and other
communications and publicity. However, the fact is that Re-
spondent did suggest it, and it is now impossible to disentan-
gle the consequences flowing from its actions. I shall recom-
mend a broad order in order to restore the status quo and
remedy the various effects of Respondent's actions found to
have violated the Act.
The General Counsel and the Charging Parties have re-
quested a number of particular remedies, some of which I find
appropriate in the circumstances and have included in the
following order. It is requested that the fines, suspensions,
and expulsions from membership of the hyphenates be re-
scinded and revoked. In the ordinary case I would be loath
to hold that a union may not suspend or expel a member who
worked during a legal strike. However, here, where the
hyphenates have been forced to undergo the stigma of suspen-
sion or expulsion by Respondent's deliberate action in refus-
ing-them a free choice to withdraw in a normal manner prior
to working during the strike, and where Respondent has
further suggested that members not work with hyphenates
who were expelled, I am convinced that the effects of Respon-
dent's actions can best be remedied by restoration of the
status quo ante. It is also noted ,that in the four cases in which
appeals were perfected, Respondent's membership rejected
the penalties of suspension or expulsion. Inasmuch as the
record is incomplete as to the status of the other hyphenates
charged, I shall recommend the normal remedial order as to
all, without distinction between those whose suspension or
expulsion has already been revoked and those for whom it has
not.
It is also requested that Respondent be ordered to mail a
copy of the notice to each of its members and to publish the
notice in the local trade papers, "Hollywood Reporter" and
"Daily Variety," as well as in local papers of general circula-
tion. The record shows that Respondent was careful to mail
its strike rules, directions, orders, and instructions to all its
members in order to give those actions wide and personal
service; and further that the matter of compulsion of the
hyphenate-members to abide by Respondent's rules and the
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trials of those members and the penalties imposed on them
was given wide publicity in the trade papers and the local
press through press releases and other information supplied
by Respondent and its officers. The request that equal pub-
licity be given to the Board 's notice is clearly justified. How-
ever, I believe that this can be accomplished through requir-
ing Respondent to publish the Board's notice in the two trade
papers for 1 week (six consecutive issues). I do not think that
it is necessary that the notice be published by Respondent in
the local press, or that the publication in the trade papers be
for 3 consecutive weeks as requested. I further do not agree,
as has been requested, that there is any necessity that the
notice be read at Respondent's membership meetings, in ad-
dition to the normal positing of the notice, and the mailing
and publication just considered.
There is a further request that Respondent be ordered to
reimburse those hyphenates who were brought to -trial for
violating Respondent's strike rules for the reasonable ex-
penses of defending their conduct in their trials. A persuasive
argument can be made on the point. There is no question but
that Respondent deliberately used the difficult position of the
hyphenates in a power play against the employers. However,
the hyphenates are not entirely without responsibility in the
result; for whatever their reasons, they had maintained mem-
bership in Respondent until the very last minute . There is also
no evidence that Respondent did not sincerely believe that it
had the right to do as it did. While sincerity does not excuse
violation of the law, it has weight in considering an unusual
remedy such as that requested. I do not believe that this
remedy is justified in these circumstances.
Upon the foregoing findings of fact, conclusions of law and
the entire record, I issue the following recommended:
ORDER25
Writers Guild of America, West, Inc., the Respondent
herein, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing any employer in the selection
of its representatives for the purpose of collective bargaining
or the adjustment of grievances by (1) issuing rules, orders,
directions, or instructions in any form to any supervisor,
executive or other management personnel whose functions
involve or may involve collective bargaining or the adjust-
ment of grievances not to perform supervisory, managerial,
or executive functions for such employer; (2) threatening any
such employer representative with fines, suspension, or ex-
pulsion from membership, blacklisting, ostracism, or any
other penalty or reprisal for performing supervisory,
managerial, or executive functions for such employer; (3)
citing or charging any such employer representative with
violation of any such rule, order, direction, or instruction, or
by summoning any such employer representative before any
committee, board, panel, or tribunal to be tried for, or by
trying any such employer representative for violation of such
rule, order, direction, or instruction forbidding such repre-
sentative from performing supervisory, executive, or
managerial functions; (4) fining or otherwise disciplining
such employer representatives for performing supervisory,
executive, or managerial functions; or (5) enforcing in any
other manner any such rule, order, direction, or instruction.
(b) In any like or related manner restraining or coercing
any employer in the selection of representatives for the pur-
pose of collective bargaining or the adjustment of grievances.
2. Take the following affirmative action designed to effec-
tuate the purposes of the Act:
(a) Revoke, rescind, and expunge from Respondent's rec-
ords, the fines , suspensions , or expulsions from membership,
or other disciplinary action, or penalty imposed on Hugh
Benson , Robert Blees, Cy Chermack, Jon Epstein, David
Levinson, John T. Mantley, Herman S. Saunders, -David Vic-
tor, Robert A. Cinader, Barry Crane, or on any other em-
ployer representative as described in paragraph 1, (a), (1)
above, for working during the strike beginning on or about
March 4, 1973, as a supervisor, executive, or in a managerial
capacity.
(b) Reimburse Hugh Benson, Robert Blees, Cy Chermack,
Jon Epstein, David Levinson, John T. Mantley, Herman S.
Saunders, David Victor, Robert A. Cinader, and Barry
Crane, and any other employer representative as described in
paragraph 2(a) above, for the fines levied against them, with
interest thereon at 6 percent per annum.
(c) Advise Hugh Benson, Robert Blees, Cy Chermack, Jon
Epstein, David Levinson, John T. Mantley, Herman S. Saun-
ders, David Victor, Robert A. Cinader, and Barry Crane, and
any other employer representative as described above, in
writing, that any fines levied against them, and any action
suspending or expelling them from membership in the Re-
spondent, or any other penalty imposed upon them for work-
ing during the said strike, has been revoked and rescinded,
and that such fines and suspensions or expulsions, or other
penalties have been expunged from Respondent's records.
(d) Post at its office and meeting halls copies of the at-
tached notice marked "Appendix."26 Copies of said notice,
on forms provided by the Regional Director for Region 31,
after being signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail a signed copy of the attached notice marked "Ap-
pendix" to all Respondent's members to whom Respondent's
strike rules dated February 20, 1973, were mailed.
(f) Publish the attached notice marked "Appendix" for 1
week (six consecutive issues) in "Hollywood Reporter" and
"Daily Variety," immediately after posting said notice.
(g) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.
25 In the event no exceptions are filed as provided by Sec. 103 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 ot"the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in-the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "