American Guild of Variety Artists

National Labor Relations Board - Board Decisions

Feb 16, 1972

195 N.L.R.B. 416 (N.L.R.B. 1972)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Guild of Variety Artists, AFL-CIO (Har-
rah's Club, et al.) and Charles Peterson . Case 20-
CC-782
February 16, 1972
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 11, 1969, the National Labor Relations
Board issued its Decision and Order in the above-enti-
tled proceeding, concluding, inter alia, that Respond-
ent engaged in permissible primary activity when it sent
telegrams to certain performers requesting that they
honor AFM picket lines or suffer union disciplinary
action, and therefore dismissing the complaint.`
On March 15, 1971, the United States Court of Ap-
peals for the Ninth Circuit found that the Board erred
in finding that Respondent had engaged in primary
activity in sending the telegrams. The court further
found there was overwhelming evidence that the enter-
tainers to whom the telegrams were sent were inde-
pendent contractors, that the telegrams threatened, co-
erced, and restrained the independent contractors who
received them, and that the telegrams were sent for the
unlawful object of forcing or requiring the recipients to
cease doing business with Harrah's Club or Sparks
Nugget. The court concluded that by these actions Re-
spondent violated Section 8(b)(4) (ii)(B) of the Act and
remanded the case to the Board for the purpose of
entering an order in accordance with the tenor of its
decision.2 On October 26, 1971, the Supreme Court of
the United States denied a petition for writ of certi-
orari.'
On November 22, 1971, the Board invited statements
of position from the parties in light of the remand
order. Such statements were received from the General
Counsel, the Charging Party, the Respondent, and the
Intervenor, Harrah's Club.
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 court of appeals has disposed of all of the sub-
stantive issues in this case,' leaving only the question of
remedy for our consideration.' Intervenor, Harrah's
176 NLRB No 77
446 F.2d 471 This case was consolidated before the court with the
Board's decision in Harrah's, 178 NLRB 707
' 404 US 912
' Inasmuch as the record and briefs adequately reflect the positions of the
parties, the motion by Charging Party for oral argument is hereby denied
' The Charging Party and Intervenor, Harrah's Club, contend that the
Board should now consider whether Dinah Shore and Tennessee Ernie Ford
would have been or were allies of Harrah's Club In view of its disposition
of the other issues the Board, in its original decision , found it unnecessary
to decide this issue However, the court of appeals made it clear that it was
adopting the Trial Examiner's findings that Shore and Ford would have been
Club, urges that in addition to the usual cease-and-
desist, and posting requirements that Respondent be
required to publish the full notice in its national publi-
cations. The Charging Party supports this position. In
view of the wide dispersion of Respondent's member-
ship we feel that this is an appropriate additional
remedy and shall order Respondent to so publish the
notice. Charging Party also urges the Board to order
Respondent to amend its bylaws so that employer-
members would not be subject to the bylaws invoked by
Respondent in threatening to discipline employer-
members if they performed at the club involved. Al-
though the court found the provisions were used on this
occasion by Respondent to engage in unlawful conduct,
there is nothing, in the court's opinion, to suggest that
the provisions are themselves unlawful. Under these
circumstances it would be inappropriate to order their
amendment or deletion from Respondent's bylaws. In
our opinion, it is sufficient to order Respondent to cease
and desist from engaging in the unlawful conduct.
Charging Party also urges that Respondent be required
to send a copy of the notice to all of its members. In
our opinion, it is sufficient to require publication in
Respondent's national publication. Finally, Charging
Party urges that we issue a broad order and, in support
of this contention, cites various other Board cases in-
volving Respondent, all but one of which were resolved
by settlement.' The Board has held that settlement
agreements have no probative value in establishing that
violations of the Act have occurred and, hence, they
may not be relied upon to establish a "proclivity" to
violate the Act.' The record does not otherwise demon-
strate that Respondent has demonstrated a proclivity
to disregard the secondary boycott provisions of the
Act. Accordingly, a broad remedial order is not jus-
tified in this case.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, American
Guild of Variety Artists, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from threatening, coercing, or
restraining Gaylord and Holiday, Sid Ceasar, or any
other person engaged in commerce or in an industry
affecting commerce, for an object of forcing or requir-
or were allies of Harrah's Club, even though it expressed some reservations
about the finding Therefore, we are precluded from further consideration
of the matter in this proceeding
' The case not resolved by settlement involved violations of Sec 8(b)(2)
and (1)(A) of the Act
' Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (H A Carney and David Thompson, Partners, d/b/a C & T Truck-
ing Co), 191 NLRB No 2
195 NLRB No. 73
AMERICAN GUILD OF VARIETY ARTISTS 417
ing said person to cease doing business with Harrah's
Club or Sparks Nugget.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its headquarters and in each of its offices,
including all places where notices to members are cus-
tomarily posted , and reprint in an issue of an American
Guild of Variety Artists national publication , copies of
the attached notice marked "Appendix ."'Copies of said
notice, on forms provided by the Regional Director for
Region 20 , after being duly signed by an authorized
representative , shall be posted by Respondent immedi-
ately upon receipt thereof , and be maintained by Re-
spondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
members are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material . Reprinting of the notice in an issue of an
American Guild of Variety Artists national publication
shall be within 60 days of receipt of the notice from the
Regional Director.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 20, for the informa-
tion of Harrah 's Club, Sparks Nugget , Sid Ceasar, and
Gaylord and Holiday, and for the posting by said em-
ployees or persons, if willing , at locations on their
premises where notices to employees are posted.
8 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
(c) Notify the Regional Director for Region 20, in
writing , within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten , coerce, or restrain
Gaylord and Holiday, Sid Ceasar, or any other
person engaged in commerce or in an industry
affecting commerce , for an object of forcing or
requiring said person to cease doing business with
Harrah 's Club and/or Sparks Nugget.
AMERICAN GUILD
OF VARIETY ARTISTS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13018 Federal Building , Box 36047, 450 Golden
Gate Ave., San Francisco , California 94102, Telephone
415-556-3197.