American Guild of Variety Artists, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Nov 18, 1965

155 N.L.R.B. 1020 (N.L.R.B. 1965)

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify Commercial Drywall Constructors, Inc., that we will reim-
burse it for expenses incurred to date by reason of the provisions in the contract
relating to a performance bond and Administrative Fund Trustees.
PAINTERS DISTRICT COUNCIL No. 36, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5229.
American Guild of Variety Artists, AFL-CIO and Al Fast and
Golden Triangle Restaurant, Inc. and Tampa International Inn,
Inc., The Outrigger Inn of St. Petersburg , Inc., d/b/a Outrigger
Inn, Hawaiian Village Restaurant , Fontainebleau Hotel Cor-
poration , d/b/a Fontainebleau Hotel , Morris Lansburgh , et al.,
d/b/a Deauville Hotel , Americana Hotel , Forty-Five Twenty-
Five, Inc. , d/b/a Eden Roc Hotel , and Carillon Hotel, Parties to
the Contract ( Minimum Basic Agreement ) and Gold Coast
Theatrical Agency, Inc., Gerry Grant Agency, Parties to the
Contract ( AGVA Franchise Agreement)
American Guild of Variety Artists , AFL-CIO and Clayton I. Hart
and Al Fast. Cases Nos. M-CB-647, 12-CA1-2393-1, and 1°2-CA-
2393-2. November 18, 1965
DECISION AND ORDER REMANDING
Upon charges a,nd amended charges filed and served upon American
Guild of Variety Artists, AFL-CIO, herein called Respondent or
AGVA, a complaint and an amended complaint were served upon the
parties on November 16, 1962, and July 15, 1963, respectively, in
Cases Nos. 12-CA-2393-1 and 12-CA-2393-2, alleging violations by
AGVA. as an employer. On July 16, 1963, a. consolidated complaint
and notice of hearing in Cases Nos. 12-CA-2393-1, 12-CA-2393-2,
and 12-CB-647 was issued, alleging violations of Section 8 (a) (3) and
(1), and 8(b) (1) (A) and (2) of the Act, by AGVA as an employer
a.nd as a labor organization, respectively. By its answers, the Re-
spondent denied any wrongdoing and moved that the Board decline
jurisdiction herein and dismiss the complaint.
Thereafter, by stipulation executed on October 28, 1963, and filed
with the Board on October 31, 1963, the parties agreed to waive all
intermediate proceedings before -t Trial Examiner on the question of
jurisdiction and subunit that issue directly to the Board, expressly
155 NLRB No. 106.
AMERICAN GUILD OF VARIETY ARTISTS, AFL-CIO, ETC. 1021
reserving their rights with respect to all other issues. By order of
November 4, 1963, the proceeding was transferred to the Board.
Thereafter, pursuant to permission granted by the Board in accord
with the stipulation, both the Respondent and the General Counsel
filed a brief and the Respondent also filed an answering 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 powers,in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has considered the entire stipulated record,2 including
the pleadings, the stipulation of facts, the affidavits and statement, as
well as the aforesaid briefs, and makes the following:
FINDINGS AND CONCLUSIONS
Facts
The Respondent is a labor organization representing variety enter-
tainers. AGVA has its national office in New York and maintains
26 branch offices, including 2 in Canada, 2 service stations, and 3
regional offices located in 20 States of the United States. These offices
are staffed by 118 employees at a total yearly payroll of $600,000.
As of January 31, 1962, AGVA represented approximately 13,500
active, plus about 7,000 inactive or withdrawn, members from whom
it annually received dues and initiation fees in excess of $1 million.
It maintains and administers two welfare funds, based upon employer 3
contributions made pursuant to contracts between AGVA and such
employers. These contributions (approximately $650,000 annually)
are deposited in local banks and are thereafter withdrawn by AGVA
and deposited in a central account in New York City. Pursuant to
appropriate governing regulations, AGVA deposits 65 percent of the
funds in savings banks and invests the remaining 35 percent in com-
mon stocks. The welfare funds, which at the time of the stipulation
had a reserve of approximately $800,000, are designed to pay accident,
hospitalization, and death benefits to AGVA members.
AGVA negotiates and enforces employment contracts called Mini-
mum Basic Agreements (hereinafter also referred to, as MBA) with
various employers. During the, period in question, it was party to
i The Respondent requested oral argument before the Board . Because in our opinion
the entire stipulated record , together with the briefs, adequately set forth the issues and.
the positions of the parties , the Respondent ' s request is hereby denied.
2 The parties stipulated that the record in this proceeding shall consist of the charges
and amended charges, the complaint , amended complaint , and consolidated complaint, the
answers, the Respondent ' s motion to dismiss, a document entitled "Stipulation of Facts,"
affidavits of six named individuals , and the statement of one.
3 Unless otherwise specifically indicated , the term "employer" is used herein in its
generic , rather than statutory, sense and refers to any entity for whom variety artists
perform for compensation.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 2,500 such agreements. Of these, approximately 2,000
were with employers engaged in the theater, nightclub, and hotel busi-
ness, and the remaining 500 were divided into 2 groups-the outdoor
group (circuses, fairs, etc.) and private organizations., referred to, as
club-date contracts, covering 1-night engagements. In addition,
approximately 100,000 individual artists' engagement contracts are
executed annually between performers and employers on an. AGVA
standard form of Artists' Engagement Contract, which supplements,
and is subject to, the MBAs of the employer. AGVA also has, some
900 agreements (called National Codes of Fair Practice) with theat-
rical agents and producers, which supplement the MBAs and which
set forth minimum rules of fair practice between such agents and
performers.
As a condition of entering into an MBA or an Artists' Engagement
Contract, AGVA requires that the employer post bonds (either cash
or bearer), in an amount equal to the value of the artists' services for
1 week, to insure against the employer's failure to pay the performer.
These bond moneys are deposited in local banks in the areas where
posted and are subsequently withdrawn by AGVA and deposited in
a central account in New York City. Withdrawals from the fund are
made where the employer defaults in its obligation to compensate the
artists or requests that the performer be paid from the bond account.
Withdrawals are also made for the purpose of reducing or totally
withdrawing the amount posted. Approximately $874,000 in bond
payments are collected and disbursed by AGVA annually.
During the period in question, AGVA had Minimum Basic Agree-
ments with hotels both in Florida and in other States, which hotels
meet the Board's standards for asserting jurisdiction, i.e., each has an
annual gross exceeding $500,000, at least 75 percent of the rooms are
occupied for a period of less than 30 days, and each annually purchases
and receives goods, from outside the State wherein it is located, in an
amount sufficient to establish statutory jurisdiction 4
With respect to the five hotels named herein, each of which executed
an MBA with AGVA, the parties stipulated the following employment
facts : 5
Eden Roc: The entertainment season lasts approximately 17 weeks
and consists of approximately two performers each week.
Deaurville : The entertainment consists of 3 shows a week for 52
weeks a. year, with a total of approximately 300 persons appearing
1 night each; in addition, there are about 30 performers whose tenure
is from 1 week to 10 days during the. height of the. season, which
season lasts approximately 17 weeks.
4Ploridan Hotel of Tampa , Inc., 124 NLRB 261.
'AGVA asserted that the facts relating to the Carillon and the Americana are not
typical, but constitute exceptions to the general employment practices in the industry.
AMERICAN GUILD OF VARIETY ARTISTS, AFL-CIO, ETC. 1023
Fontainebleau: There are scheduled 150 1-night shows each year,
consisting of about 300 performers appearing for 1 night each; there
are also 4 or 5 star performers during a season who appear for periods
ranging from 1 week to 10 days at a time.
Americana: There are 20 "steady" performers (the duration of
whose engagement is more than 30 days and who are involved in an
ice show). In addition, there are 50 1-night shows scheduled during
the year, totaling 100 performers each appearing for 1 night.
Carillon: The entertainment season lasts 52 weeks a year and con-
sists of two phases. In one phase, there is a permanent chorus (more
than 30 days in duration), consisting of approximately 16 persons,
which is supplemented by acts having a tenure of 4 to 10 weeks. In
its other phase, there are 5 or 6 different acts per week throughout
the entire year representing some 300 entertainers performing 1 night
each.
With respect to the above hotels, the performers who appear on a
1-night basis earn an average of $60 per night. The "steady" per-
formers, i.e., those engaged for a period of 1 week or more, and who
are not principal entertainers, earn an average of $100 per week.
Principal or star performers earn upwards of $300 per week. The
combined annual earnings of all performers in the United States,
under AGVA's individual artists' contracts and MBAs, exceed $5
million.
Discussion
It is not contended that the Board lacks statutory jurisdiction over
the entertainment industry and, from the above facts, it is apparent
that the Board's standards for asserting such jurisdiction, both over
AGVA, acting as an employer, and over the hotels named herein, are
also satisfied. AGVA contends, however, that (1) the Board should
continue its practice of declining jurisdiction in the amusement indus-
try particularly where, as here, over 96 percent of all employment is
on a casual and temporary basis; (2) alternatively, the Board should
not assert jurisdiction over variety artists when engaged by employers,
such as the hotels herein, which are otherwise subject to the Board's
jurisdiction; and ,(3) the Board should decline jurisdiction over
AGVA as an employer under the Act, as its function relates solely to
representing persons working is variety entertainers.
We find no merit in AGVA's contentions. Contrary thereto, the
Board has not, as a general rule, refused to assert jurisdiction over
employers engaged in the amusement industry.6 Rather, it has con-
6 Carl Walter Ray, d /b/a Ray, Davidson cb Ray, 131 NLRB 433; Edicard Small Produc-
tions , Inc., et at., 127 NLRB 283; Independent Motion Picture Producers Association, Inc.,
12.3 NLRB 1942, 1948 ,.footnote 19; The Teague of New Fork Theatres, Inc., 129 NLRB
1429 , 1432, and cases cited therein.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistently done, so, declining jurisdiction where the employer's business
was essentially local in character,7 and where it involved racetracks
and enterprises related thereto." These exceptions are very limited.
The fact, as urged by AGVA, that extensive competition exists
among entertainers for available jobs, that employment in the indus-
try is, to a great extent, casual and irregular, that performers shift
frequently from employer to employer, often considerable distances
apart, does not militate against the Board's assertion of jurisdiction .9
Nor is it material, as contended by AGVA, that variety entertainers
are affected by seasonal business fluctuat.ions;10 or, that such enter-
tainers, when engaged at enterprises such as the hotels herein, per-
form a very special and limited function which is but remotely related
to such establishments' principal business, and that, therefore, these
performers may have no interests in common with other employees of
the employer.
It appears from the record 11 that the entertainment aspect of an
employer's business is an integral part of its total operations. In
Thunderbird Hotel, Inc. ,12 we recently reiterated the, well-established
principles that, in determining whether or not to assert jurisdiction
over an employer's business, or segment thereof, the Board looks to
the impact on commerce of the, totality of said employer's operation;
and, once the Board's statutory jurisdiction is established, it is unnec-
essary to inquire into the nature of the goods or services furnished by
the employer to its customers. Thus, contrary to AGVA's contention,
it is immaterial that variety performers are engaged solely for the
purpose of entertaining the employer's customers. and may have only
a remote interest in common with other employees. In fact, this mat-
ter of common interests would be relevant only on the question of an
appropriate bargaining unit which is not involved herein.
AGVA's reliance on Pinkerton's National Detective Agency, Inc.,13
in support of its alternative contention (2) above is misplaced. The
7 Olympia Stadium Corporation, 85 NLRB 389 ; Philadelphia Moving Picture Machine
Operators Union x#307-A, etc. (Keanwo, Inc.), 90 NLRB 652 ; Moving Picture Projection-
ists Local No. 150 , I.A.T.S.E. (Southside Theatres , Inc., and Fanchon & Marco, Inc.), 109
NLRB 259; cf . Philadelphia Orchestra Association, 97 NLRB 548.
s Hialeah Race Course, Inc., 125 NLRB 388; Meadow Stud, Inc., 130 NLRB 1202; Wil-
liam H. Dixon, 130 NLRB 1204 ; Walter A. Kelley, 139 NLRB 744 ; Pinkerton's National
Detective Agency, Inc., 114 NLRB 1363, 1364.
9 Independent Motion Picture Producers Association , Inc., supra ; see also Batjac Enter-
prises, Inc., et al., 126 NLRB 1281.
10 Ray, Davidson & Ray, supra ; Coney Island, Inc., 140 NLRB 77 (some 100 days each
summer constituted employer's business season ) ; Aspen Skiing Corporation, 143 NLRB
707 (the employer 's season lasted from Thanksgiving to Easter).
u Morris Lansburgh , one of the hotel owners and an affiant in support of AGVA's posi-
tion, stated that the primary purpose for hiring entertainers is to furnish recreational
activity to guests of the hotel ,and to publicize the hotel in order to attract other potential
guests . Thus, the artists furnish a service which is considered desirable and even nec-
essary to a hotel's continued successful operation.
-144 NLRB 84, 86.
is 114 NLRB 1363, 1364.
ALTON BOX BOARD COMPANY CONTAINER DIVISION 1025
Board there declined jurisdiction upon a finding that the true
employer of the employees involved was a racetrack operator, and
refused to view the guard services apart from those of the business
of the, employing industry.
Finally, with respect to AGVA's contention ( 3) above, it is well
settled that a labor organization, when acting as an employer vas a vis
its own employees , is an employer within the meaning of Section 2 (2)
of the Act, and subject to the Board 's jurisdiction . '-" This is so
regardless of the industry which it services and regardless of whether
or not the Board has statutory jurisdiction over that industry 15
In view of the above, we find that it will effectuate the policies of
the Act to assert jurisdiction over the Respondent herein , both in its
capacity as an employer and in its role as a labor organization.16
Accordingly, we shall deny the Respondent 's motion to dismiss the
complaint herein and remand the case for further proceedings on the
merits thereof.
[The, Board denied the Respondent's motion to dismiss the com-
plaint; and remanded this case to the Regional Director to arrange
a hearing before a Trial Examiner, who shall prepare a Decision and
Recommended Order.]
14 Office Employees International Union, Local 11 (Oregon Teamsters) v. -Y.L.R.B., 353
U.S. 313; Laundry, Dry Cleaning and Dye House Workers' International Union Local 46;
et al., 129 NLRB 1446, footnote 2.
15 Air Line Pilots Association International, et of., 9T NLRB 929 ( the Board asserted
jurisdiction over the association as an employer even though the industry which it serviced
was subject to, the Railway Labor Act).
16 We do not share AGVA's apprehension that chaos and disorder in the variety enter-
tainment field must necessarily flow from our Decision herein. For , we cannot accept
AGVA's premise that it must have complete freedom from the operations of the Act to
maintain order , stability, and responsibility in collective bargaining on behalf of variety
artists.
Alton Box Board Company Container Division and Paul D.
Hirsch . Case No. 1lf-CA4-3599. November 18, 1965
DECISION AND ORDER
On August 30, 1965, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices as alleged and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision and a sup-
porting brief. Respondent has filed a brief in support of the Trial
Examiner's dismissal.'
1 No exception was taken to the Trial Examiner 's disposition of Respondent 's position
based upon the existence of a contractual grievance-arbitration procedure.
155 NLRB No. 94