American Federation of Television and Radio Artists

National Labor Relations Board - Board Decisions

Jan 14, 1974

208 N.L.R.B. 377 (N.L.R.B. 1974)

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS
American Federation of Television and Radio Artists,
AFL.-CIO and WBEN, Inc. Case 3-CB-2018
January 14, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY , AND PENELLO
On September 26, 1973, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, American Federa-
tion of Television and Radio Artists, AFL-CIO,
Buffalo , New York, its officers , agents , and repre-
sentatives , shall take the action set forth in the said
recommended Order.
i Respondent contends that the Administrative Law Judge's findings
and recommended Order exceed the allegations of the complaint in that
they apply to all employees covered by the collective-bargaining agreement
between Respondent and the Employer, whereas par Vill of the complaint
herein refers to Respondent requiring "part -time and /or temporary
employees ' covered by the aforementioned contract to pay an initiation fee
which is excessive and discriminatory We do not agree . Respondent has a
single initiation fee that is applicable to all employees covered by the
agreement referred to above , irrespective of whether they are full-time, part-
time, or temporary employees It is clear that Respondent increased that fee
from $100 to $250 for all members, not just those employed on a part-time
basis, in order to restrain the Employer from hiring part -time employees
and to discourage nonmembers of Respondent from seeking part-time
employment with the Employer, thereby violating Sec 8(b)(5) and (1)(A) of
the Act Consequently , there can be no question that the underlying basis of
the unfair labor practices alleged in the complaint, though martfully
drafted , was Respondent 's action increasing its initiation fee for all
members Since Respondent has but one initiation fee and it was excessively
increased for a discriminatory purpose , it is appropriate that our Order
apply to all affected employees of the Employer because had Respondent
not been seeking to accomplish an unlawful object, none of these employees
would have been required to pay the increased initiation fee In addition,
counsel for the General Counsel amended the complaint at the start of the
hearing in this proceeding to add an allegation that Respondent 's initiation
fee increase violated Sec 8(b)(IXA) of the Act by restraining and coercing
"employees in general ," which should have made Respondent aware that
the unfair labor practices it was alleged to have committed were not limited
to part- time employees
DECISION
STATEMENT OF THE CASE
377
LEONARD M. WAGMAN, Administrative Law Judge: This
case was heard at Buffalo , New York, on June 12, 1973,
based upon a charge filed January 23, 1973, and a
complaint issued on May 2, 1973, alleging that Respon-
dent, American Federation of Television and Radio
Artists, AFL-CIO, referred to herein as AFTRA, violated
Section 8(b)(5) of the Act by requiring WBEN, Inc.'s part-
time and temporary employees to pay an excessive and
discriminatory initiation fee. The complaint was amended
at the hearing to allege that the initiation fee also violated
Section 8(b)(1)(A) of the Act. Respondent denies any
violation of the Act. The General Counsel and WBEN,
Inc., the Charging Party, have filed briefs, which I have
read and considered.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE CHARGING PARTY' S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
WBEN, Inc., is a New York corporation with its
principal office and place of business at Buffalo, New
York. At all times material to this case, WBEN, Inc., has
been engaged in the operation of a commercial radio
station (WBEN) and a television station (WBEN-TV).
Revenue from WBEN, Inc.'s radio and television opera-
tions during the 12 months preceding the hearing exceeded
$9 million. Approximately 70 percent of the gross revenues
realized from the radio station, and about 40 percent of the
television station 's revenues arose from the advertisement
of national brand products. WBEN, Inc., also subscribes to
the wire services of Associated Press and United Press.
Accordingly, I find that WBEN, Inc., is an employer
within the meaning of Section 2(6) and (7) of the Act.
Raritan Valley Broadcasting Company, 122 NLRB 90,
91-92 (1958).
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
iI. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue presented is whether AFTRA's
initiation fee of $250 for part-time WBEN, Inc., employees
seeking membership in its Buffalo , New York, Local is
"excessive or discriminatory" within the meaning of
Section 8(b)(5) of the Act. Also at issue is whether, if
violative of Section 8(b)(5), the initiation fee also violates
Section 8(b)(1)(A) of the Act, because it restrains or
coerces employees in the, exercise of their right to join
AFTRA.
208 NLRB No. 59
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts 1
Of the 5 television and 14 radio stations in the Buffalo
area, only WBEN-TV and radio stations WBEN and
WKBW have collective-bargaining agreements covering
announcers. NABET (National Association of Broadcast
Engineers and Technicians, AFL-CIO, CLC), which
represents WKBW's announcers, has an initiation fee of
$75 for WKBW's part-time announcers, and requires
payment of 1-1/2 weeks' salary as the initiation fee for the
station's full-time announcers.
Under its current 3-year collective-bargaining agreement
with AFTRA effective as of June 1, 1971, WBEN, Inc.,
referred to hereafter as WBEN, recognizes the Union as
exclusive bargaining representative of the radio and
television staff performers, news reporters, and staff
announcers. Paragraph 2.1 of the contract provides in
pertinent part:
Any employee covered by this Agreement shall, as a
condition of employment, become a member of and
maintain his membership in the Union on and after the
thirtieth day following the beginning of his employ-
ment . . . by tendering the periodic dues and the
initiation fees uniformly required as a condition of
acquiring or retaining membership.
The contract in paragraph 1.1(a), also permits WBEN to
hire "temporary employees" including in that definition
part-time employees, as follows:
The term "Temporary Employee" applies to, and is
limited to, an employee of the Company within the
bargaining unit covered by this Agreement, hired on a
full time or part time basis and who is notified at the
time of hiring that he will be scheduled to work on not
more than one hundred and thirty (130) regular straight
time programming days in any one (1) calendar year. A
temporary employee may be used to cover such
situations as vacation relief, seasonal programming,
special news reporting, illness, leaves of absence. etc.
Temporary employees may be used to cover regular
work, principally on weekends. In any one week, such
work will not exceed thirty-two (32) hours for all such
employees.
In December 1971, WBEN, implemented this provision
for the first time when it hired a part -time employee, Ken
Ruof . Ruof became a member of AFTRA upon the
expiration of 30 days' employment, and payment of a $100
initiation fee to the Buffalo Local. On December 3, 1972,
WBEN hired a second part-time employee , Louis German,
who was to be an announcer . At the time he was hired,
WBEN advised German that after 30 days he would be
required to join AFTRA, and that the initiation fee would
be $100 . On December 5, WBEN advised William Masters,
the president and chief steward of AFTRA' s Buffalo
Local , of German 's hire . On the same date , WBEN sent a
letter of welcome to German and again advised him that he
would be required to join AFTRA after 30 days'
employment.
On December 15, 1972, AFTRA's Buffalo Local raised
its initiation fee to $250. Within a few days the Local,
through Masters, notified WBEN of the increase. On
December 28, when WBEN's Vice President and General
Manager Leslie Arries, Jr., questioned him about the
increase, Masters stated that one of the reasons for the
action was that "some of the guys felt that we shouldn't
have part-time employees." On December 29, Masters
confirmed the new initiation fee in a letter to Ames but
made no mention of whether the new fee was applicable to
Louis German. Upon receipt of Masters' letter, Arnes
asked him whether German was subject to the increase and
whether the increase had been discussed with AFTRA's
local membership. Masters responded that "some of the
fellows were against part-time employees and that this was
the fee for Louis German. On January 2,2 WBEN sent a
letter to Masters protesting that the $250 fee and the dues
"makes the employment of temporary employees virtually
impossible." WBEN also questioned the application of the
fee to German and requested a meeting.
At the meeting which followed on January 12, WBEN's
spokesman expressed concern that the increase would
impair its ability to hire part-time or temporary employees.
Masters, on behalf of AFTRA, explained that there were
"several reasons" the initiation fee had been increased.
One of the reasons was that the Local needed more money.
Another was "that they did not want part-timers at the
station because they were taking potential work from full
timers, and secondly . . . they were opposed to part-timers
as a matter of principle in the station." At this meeting,
and thereafter, WBEN proposed a modification of the
Buffalo Local's initiation fee for part-time employees to
which the Local made no response. On or about January
24, AFTRA's national board approved the Buffalo Local's
initiation fee increase.
In the meantime , German had tendered $100 as payment
of his AFTRA initiation fee. On January 3, AFTRA's
Buffalo Local acknowledged receipt of German's check,
but advised him that the "total initiation fee for union
membership is $250" and that unless he paid the remaining
balance by January 5 "we expect that you will not take the
air . . . as you will be a non-union member."3 However,
AFTRA consented to German's employment at WBEN
without payment of the remaining portion of the initiation
fee, pending disposition of WBEN's protest. By its letter of
January 23, AFTRA again notified German that unless he
paid the $150 due on his initiation fee, he could not
perform on the air for WBEN. German did not tender the
remaining $150 until March 9. In the interim, WBEN did
not call him for work.
Between December 3, 1972, when WBEN hired him, and
the week ending June 3, German worked 17 days for
WBEN at $6.125 per hour. His gross pay for l day's work
was $49. Subtracting the approximately 6 weeks from
January 23 until March 9 when AFTRA refused to permit
him to work at WBEN because of his failure to pay the
initiation fee, German was available for employment by
I The facts relating to the alleged violations are substantially undisputed
2 Unless otherwise stated all subsequent dates refer to 1973
3 The transcript is hereby corrected at p. 153. 1124 and 25 to reflect that
AFTRA's letter of January 3 was received in evidence as G C Exh. 17
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 379
WBEN for about 20 weeks of the 26-week period. His
gross pay for the entire period was $859.94, including
$73.50 for holiday premium pay.
C. Analysis and Conclusions
Section 8(b)(5) of the Act makes it an unfair labor
practice for a labor organization
... to require of employees covered by an agreement
authorized under subsection (a)(3) the payment, as a
condition precedent to becoming a member of such
organization, of a fee in an amount which the Board
finds& excessive or discriminatory under all of the
circumstances. In making such a finding, the Board
shall consider, among other relevant factors, the
practices and customs of labor organizations in the
particular industry, and the wages currently paid to the
employees affected.
In applying this section of the Act, the Board has held
that an initiation fee increase "designed for the purpose of
restraining the Employer in the hiring of part-time
employees who were not union members, or to end the
practice, thereby restricting employment to a full-time
union members" is unlawful. Television and Radio Broad-
casting Studio Employees Local 804 (Radio and Television
Division of Triangle Publications, et al.), 135 NLRB 632, 636
(1962), enfd. 315 F.2d 398, 399-400 (C.A 3, 1963). Accord:
General Longshore Workers, International Longshoremen's
Association, Local Union No. 1419, AFL-CIO (New Orleans
Steamship Association), 186 NLRB 674, 676-678 (1970);
New York Local 11, National Association of Broadcast
Employees and Technicians, AFL-CIO (American Broad-
casting Company, et al.), 164 NLRB 242, 244-245 (1967).
Here, it is evident that AFTRA had a discriminatory
motive in increasing the Buffalo initiation fee. The Local's
President and Chief Steward Masters, on three occasions
after the increase, revealed its hostility toward WBEN's
employment of part-time employees. He also admitted that
this sentiment was at least one of the considerations which
motivated the increase. Masters' admissions coupled with
the timing of the decision only 10 days after WBEN
notified Masters that it had hired part-time employee
German leave little doubt that AFTRA's intent was to
restrain WBEN from hiring part-time employees and to
discourage nonmembers of AFTRA from seeking part-
time employment at WBEN.
Moreover, AFTRA has not offered an acceptable
alternative explanation for the 150-percent increase in its
Buffalo initiation fee. The increase from $100 to $250 was
substantial and of sufficient magnitude to restrain part-
time employees who, as Louis German, had no guarantee
that WBEN would employ them at all. Further, the
collective-bargaining agreement between AFTRA and
WBEN limited the employment of a part-time employee to
130 days per year. Excluding the 6 week period when
AFTRA prohibited German from working at WBEN4,
4 There is no allegation that AFTRA violated Sec. 8(b)(2) of the Act
5 I take judicial notice that the radio and television media constitute a
single industry Dictionary of Occupational Titles, U S Department of
Labor-Manpower Administration , Vol. 11, p 612 (1965)
during the 6 months following his hire on December 3,
1972, WBEN employed him on the average of approxi-
mately I day per week for which it paid him at a rate of
$6.125 per hour, or $49 per day. In such circumstances, the
imposition of a $250 initiation fee is also a financial burden
sufficient to dissuade a nonmember of AFTRA from
seeking or accepting part-time employment at WBEN. The
explanation offered by AFTRA consists of Masters'
assertion to WBEN's Arnes that the Local needed more
money, and the contention at the hearing that inflation was
the reason for the need. However, the record is bare of any
financial data to substantiate the proffered excuse. The
absence of such proof leaves but one explanation for the
increase-AFTRA's admitted objective of preventing
WBEN from hiring part-time employees. Accordingly, I
find that the increase in AFTRA's Buffalo initiation fee
had a discriminatory purpose within the meaning of
Section 8(b)(5) of the Act. Television and Radio Broadcast-
ing Studio Employees Local 804, supra, 135 NLRB at 636;
New York Local 11, NA BET, supra, 164 NLRB at 245.
I also find the initiation fee increase violative of Section
8(b)(5) on the ground that it is excessive. In reaching this
finding, I have taken into account the discriminatory intent
which guided AFTRA in setting the amount of increase,
the magnitude of the increase, the financial burden the
increased fee places upon prospective part-time employees
such as Louis German, and the fact that NABET, the only
other union representing employees in the radio and
television industry5 in the Buffalo area, charges part-time
announcers an initiation fee of only $75.6 General
Longshore Workers, International Longshoremen's Associa-
tion, Local Union No. 1419, supra, 186 NLRB at 678; New
York Local 11, NA BET, supra, 164 NLRB at 242, In. 2, and
245; TV & Radio Broadcasting Studio Employees Local 804,
supra, 135 NLRB at 636-637. Finally, as demonstrated by
Louis German's efforts to loin AFTRA, the initiation fee
increase restrains and coerces part-time employees in the
exercise of their right under Section 7 of the Act tojoin a
labor organization. Longshoremen's Local Union No. 1419,
supra, 186 NLRB at 678.
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. WBEN, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. American Federation of Television and Radio
Artists, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By increasing the initiation fee required for member-
ship in its Buffalo, New York, Local on December 15,
1972, from $100 to $250, and by maintaining it at that level
thereafter, Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(5) and (1)(A)
of the Act.
4. The Respondent's unfair labor practices affect
6 At the hearing , tables showing AFTRA's initiation fees at 32 other
cities and areas in the United States were received in evidence However, I
have not considered those tables in reaching my findings Longshoremen's
Local Union No 1419, supra, 186 NLRB at pp. 674.678, In. 9.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent engaged in the unfair
labor practices set forth above, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent is now, and, on and since
December 15, 1972, has been charging an initiation fee
excessive and discriminatory in all the circumstances, I
shall recommend that Respondent be required to cease
giving effect to the requirement that the amount of $250 be
paid as the price of initiation I shall further recommend
that all sums in excess of $100 paid to the Respondent on
and since December 15, 1972, as initiation fees by or on
behalf of individuals employed by WBEN, Inc., working in
classifications where membership in the Respondent is a
condition of employment, be returned to such employees,
together with 6 percent interest thereon to be computed as
prescribed in Seafarers International Union of North
America, Great Lakes District, AFL-CIO, 138 NLRB 1142,
footnote 3 (1962). Upon the basis of the above findings of
fact, conclusions of law, and the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby issue the following:
RECOMMENDED ORDER?
Respondent, American Federation of Television and
Radio Artists, AFL-CIO, and its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Requiring the sum of $250 as the puce of initiation
from Louis German or other employees of WBEN, Inc.,
working in classifications covered by the bargaining
agreement between the Respondent and WBEN, Inc.,
requiring membership in the Respondent as a condition of
employment, or requiring any other sum which is excessive
or discriminatory under all the circumstances for initiation.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Pay to Louis German and all employees of WBEN,
Inc., working in, classifications covered by the collective-
bargaining agreement between Respondent and WBEN,
Inc., requiring membership in the Respondent as a
condition of employment, all sums in excess of $100 paid
to the Respondent towards the $250 initiation fee on or
since December 15, 1972, in the manner set forth above
under "The Remedy."
(b) Make available to the Board or its agents upon
request, for examination and copying all records pertinent
to or convenient for a determination of the amounts so
paid.
(c) Post at Respondent's Buffalo office, copies of the
notice attached hereto marked "Appendix."8 Copies of said
notice , on forms provided by the Regional Director for
Region 3, shall, after being signed by Respondent's
representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for 60 consecu-
tive days thereafter in conspicuous places where notices to
Buffalo Local members are customarily posted. Reasona-
ble steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for Region 3 copies of
the attached notice marked "Appendix" for posting by
WBEN, Inc., at its place of business in Buffalo, New York,
in places where notices to employees are customarily
posted, if the said Employer is willing to do so. Copies of
said notice to be provided by the Regional Director, after
being signed by a representative of Respondent; shall be
forthwith returned to the Regional Director.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision what steps
have been taken to comply herewith.
r In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
" 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 a United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require Louis German or other
employees working for WBEN, Inc., who are covered
by a collective-bargaining agreement requiring mem-
bership in the American Federation of Television and
Radio Artists, AFL-CIO, as a condition of employ-
ment, the payment of an initiation fee in the amount of
$250.
WE WILL NOT require of Louis German or any other
such employees of WBEN, Inc., the payment of any
initiation fee which is excessive or discriminatory.
WE WILL refund to Louis German and all other such
employees of WBEN, Inc., any amounts in excess of
$100 paid to us as initiation fees on or since December
15, 1972, plus 6 per cent interest.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their right to join
the American Federation of Television and Radio
Artists, AFL-CIO.
WBEN, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 381
This notice must remain posted for 60 consecutive days directed to the Board's Office , Federal Building 9th Floor,
from the date of posting and must not be altered , defaced , Ill W. Huron Street, Buffalo, New York 14202, Telephone
or covered by any other material. Any questions concern - 716-842-3106.
ing this notice or compliance with its provisions may be