Fisher Theatre

National Labor Relations Board - Board Decisions

Feb 9, 1979

240 N.L.R.B. 678 (N.L.R.B. 1979)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nederlander Theatrical Corporation, d/b/a Fisher
Theatre and Angie Misko and Mary E. Craig
Theatrical Wardrobe Attendants Local 786, Interna-
tional Alliance of Theatrical Stage Employees and
Moving Picture Operators of the United States and
Canada, AFLCIO-CLC and Angie Misko and
Mary E. Craig and Barbara Masinick and Olympia
Stadium, A Division of Norris Grain Company, Mu-
sic Hall Center for the Performing Arts, and Michi-
gan Opera Theater, Parties in Interest
International Alliance of Theatrical Stage Employees
and Moving Picture Operators of the United States
and Canada, AFL-CIO-CLC and Angie Misko. Cases
7-CA-14464, 7-CB 3946, 7 CB 3923, and 7 CB
4037
February 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MENHI RS J NKINS
AND PEN EL.X)
On August 18, 1978. Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent Local 786
and Respondent International filed exceptions and
supporting briefs, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(bh) 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 and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Nederlander Theatrical
Corporation, d/b/a Fisher Theatre, Detroit, Michi-
gan, its officers, agents, successors, and assigns, and
the Respondent, Theatrical Wardrobe Attendants
Local 786, International Alliance of Theatrical Stage
Employees and Moving Picture Operators of the
United States and Canada, AFL-CIO CLC, its offi-
cers, agents, and representatives. and the Respon-
dent, International Alliance of Theatrical Stage Em-
240 NLRB No. 98
ployees and Moving Picture Operators of the United
States and Canada, AFL-CIO-CLC, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
DECISION
STATFMENI OF HE CASE
NAN(CY M SHERMAN. Administrative Law Judge: This
consolidated proceeding was heard in Detroit, Michigan,
on April 18 and 19, 1978, pursuant to charges filed on
September 19 and October 3, 1977, and on February 1,
1978; and a complaint issued on November 11, 1977, and
amended on December 28, 1977, and February 24, 1978.
The principal questions presented are as follows:
1. Whether Respondent Theatrical Wardrobe Atten-
dants Local 786, International Alliance of Theatrical Stage
Employees and Moving Picture Operators of the United
States and Canada, AFL-CIO-CLC (Local 786 or Respon-
dent Local), in violation of Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, as amended (the Act),
gave Barbara Masinick limited job referrals, and failed and
refused to refer her to the Hello, Dol show playing at the
theatre of Respondent Nederlander Theatrical Corpora-
tion, d/b/a Fisher Theatre (Fisher), because she was not a
member or related to a member.
2. Whether Respondent Fisher discharged Angela Mis-
ko and Mary E. Craig in violation of Section 8(a)(3) and
(I) of the Act.
3. Whether Respondent Local refused to refer Misko
and Craig for employment because of their failure to pay
fines levied by it, and by reason of such nonpayment
caused Fisher to discharge them, in violation of Section
8(b)(2) and ()(A) of the Act.
4. Whether Respondent International Alliance of Theat-
rical Stage Employees and Moving Picture Operators of
the United States and Canada, AFL CIO-CLC (IATSE or
Respondent International) was involved in Respondent
Local's action in connection with Misko and Craig, and
thereby itself violated Section 8(b)(2) and (I)(A).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the letter-brief
filed by counsel for the General Counsel and the two briefs
simultaneously filed by Respondent Local, I make the fol-
lowing:
FINDINGS OF FACT
1 JRISDICTION
At all times material herein, Respondent Local has
maintained an exclusive job referral system with various
theatres, including Fisher, the Ford Auditorium, the Music
Hall Center for the Performing Arts (Music Hall), and
Olympia Stadium, A Division of Norris Grain Company
(Olympia). There is no contention and no evidence that
any of these theatres is part of a multiemployer bargaining
unit.
Fisher is a Michigan corporation with its principal office
and place of business in Detroit, Michigan, where it oper-
FISHER THEATRE 679
ates and presents stage shows at the Fisher Theatre. During
the calendar year 1976. a representative period. Fisher's
gross revenues exceeded $500.000 and it purchased goods
and materials valued at more than $5.000 which were deliv-
ered to it directly from points outside Michigan. I find that.
as Respondents concede, Fisher is engaged in commerce
within the meaning of the Act, and that assertion of juris-
diction over its operations vill effectuate the policies of the
Act.
For the reasons stated infra. section I,D.I. I find that
the Ford Auditorium is operated by the Ford Motor Com-
pany. On the basis of Ford Motor (ompanv (Rouge C'om-
plex), 233 NLRB 698 (1977). of which I take judicial notice.
I find as follows: The Ford Motor Company is a Delaware
corporation which has its principal office and place of
business in Dearborn, Michigan. Its sales to and purchases
from points outside Michigan exceed $500,000 annually. I
conclude that Ford Motor Company is engaged in com-
merce within the meaning of the Act, and that assertion of
jurisdiction over the operations of the Ford Auditorium
will effectuate the policies of the Act.
The December and February complaints allege as fol-
lows: Music Hall is a Michigan corporation which main-
tains its principal office and place of business in Detroit.
Michigan, where it operates and presents stage shows at a
theatre. During the calendar ear 1976, a representative
period, Music Hall had gross revenues in excess of
$500,000 and purchased goods and materials valued at
more than $2,000 which it caused to be transported to its
Detroit, Michigan, place of business directly from points
located outside Michigan. Music Hall's answer to the De-
cember complaint admits these allegations. Respondents'
answers aver ignorance regarding their truth. There is no
other record evidence regarding these allegations as to Mu-
sic Hall. Because I find no violations by Respondents in
connection with Music Hall assuming Board jurisdiction as
to it, I find it unnecessary to determine whether the state of
the pleadings would permit a finding with respect to Re-
to it, I find it unnecessary to determine whether the state of
the meaning of the Act and meets the Board's jurisdic-
tional standards.
The December and February complaints allege, and
Olympia's answer to the December complaint admits, that
Olympia's sole office and place of business are located in
Detroit, Michigan, where Olympia is engaged in the man-
agement of a sports and entertainment arena. Respon-
dents' answers aver ignorance regarding the complaint alle-
gations as to Olympia. The record contains no evidence
regarding Olympia's gross revenues or its interstate pur-
chases and sales, if any. The record fails to establish either
that the Board has statutory jurisdiction over Olympia's
operations or that Olympia meets the Board's jurisdictional
standards. See infra section IID,I.
Respondent Local and Respondent International are la-
bor organizations within the meaning of the Act.
II THE ALLEGED UINAIR I RBOR PRA(UIIES
A. Background
The local consists of wardrobe personnel who work in
the entertainment industry in the Detroit. Michigan. met-
ropolitan area. They unpack, press, clean, and prepare cos-
tumes. and also work as dressers for the performers. The
local provides such personnel to the Fisher Theatre, the
Music Hall. the Ford Auditorium. the Olympia Stadium,
Cobo Hall. Meadowbrook. the Pontiac Silverdome. the
Power ('enter for Performing Arts in Ann Arbor, the l.ans-
ing Civic Center. and possibly other theatres. The written
contract between the local and the Music Hall effective
between November 8 and December 9. 1976. provided, in-
ter alia. that Music Hall "agrees to hire wardrobe person-
nel thru Local 786." The parties' contract effective between
December 9. 1976. and August 31. 1978. added the follow-
ing provisions, "Music Hall Theatre may use nonunion
help on a ratio of 2,/3 union to 1/'3 nonunion provided they
are bona fide students of the Arts."
The local's referral service is operated primarily by local
business agent Lloyd Dalton. whose principal occupation
is as a stagehand but who himself also works from time to
time as a wardrobe employee. Normally, he learns of a
need for wardrobe personnel by receiving a telephone call
from the wardrobe mistress or master of a show coming
into town. As to most of the Fisher Theatre shows. he is
notified by the business manager of the stagehands' local
(Local 38. IATSE) about how many wardrobe personnel
are specified on a yellow card which he receives in advance
of each show, and which reflects a manning agreement be-
tween the International and the show producer before the
show begins its tour. Uon receiving such information.
Dalton contacts the available workers, refers them out to
the show, and tells them what time they are supposed to
appear. If the show contacts an individual directly, the lo-
cal requires him to transmit that information to the local
and get a referral to the show from the local.
For the purpose of operating this referral service, Dalton
maintains a referral list which consists of members, non-
members who are kin to members. nonmembers who are
kin to each other, and nonmembers who are not kin to
anyone else on the list. Dalton testified that in deciding
which people to refer to work, he tries to equalize the earn-
ings of the employees on the referral list "'to the extent I'm
able to. all things being equal, if they're capable of doing
the job." In order to follow this policy. he receives from the
job steward a report of the earnings of each person on the
job. In January of each ear. Dalton starts all over as far as
his equalization policy is concerned. Since at least March
1958. the local's constitution and bylaws have required the
business agent to "always notify members of any vacancies
occurring [in the various theatres] before allowing non-
union people to be hired."
During calendar year 1977. the local's referral list con-
sisted of about 18 members and about 34 nonmembers.
The list included Lloyd Dalton himself and eight of his
relatives (including one member).] Local President Gladys
His member rclatie was his sifc. t)arlene Ii nnmembehr relatmls
Acre t o ./ I~o. Iwo datilihicrx. I,,,l ls-In-l.. inld hl 1s, ter-l-lav
FISHER THEATRE
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogers and two of her relatives, 2 Local Vice President Al-
vin Enck and his wife, who is also a member; Local Secre-
tary-Treasurer Sophie Warehall and three of her relatives.
none of them members;3 Local Sergeants-at-Arms and sis-
ters Shirley Jeakle and Marjorie Irwin; a third sister who is
a nonmember; Irwin's daughter-in-law, also a nonmember;
and at least three nonmembers who are kin to a rank-and-
file member. 4 The local admits only a limited number of
applicants.
Lloyd Dalton testified that of the employees on the re-
ferral list, only two perform wardrobe work as their sole
livelihood.5 The employees on the referral list are not whol-
ly interchangeable for referral purposes. Sometimes the
theatre will request an employee of a specified sex.6 Also,
some dressers are unable to perform seamstress work or
handle beading. Further, some wardrobe personnel are
more experienced than others. Dalton testified that in gen-
eral union members have more experience than nonmem-
bers, and that sometimes he prefers experienced employees
to handle a "tough show."
When referring employees, Dalton seldom or never
knows with certainty how long the show is going to run
and how much the employees are going to earn. For opera
performances, he does not know how much preopening
work will be required, but Metropolitan Opera performan-
ces are for a fixed run and Michigan Opera performances
are for a minimum run. Also, he normally, but not always,
knows how long a show is going to run at the Fisher The-
atre.
B. The Alleged Unfair Labor Practices Directed at
Nonmember Barbara Masinick
I. Background
Barbara Masinick has received local referrals to jobs
since about 1972. She applied for membership in January
1976 and toward the end of 1976. On the second occasion,
Lloyd Dalton voted to admit her, but she has never been
admitted. The local voted in about a dozen new members
in February 1978, but she had not known that the local was
admitting new members at the time and did not apply
again.
Masinick received her first job, which lasted for 5 weeks,
through a neighbor but with the local's approval. In Octo-
ber 1973, the Union referred her to a 5-week show. In 1974,
the Union referred her to two 5-week shows, "The Wiz"
and "London Assurance." Lloyd Dalton testified, and the
2 These are her daughter, who is a member, and her daughter-ln-law. who
is not.
These were her son, her daughter, and her daughter-in-law.
4Cheryl Craig, Joan Craig, and Susan Critchlow are member Mars E.
Craig's daughter-in-law, daughter, and daughter, respectively. Also. the list
includes member Richard Jungelas and nonmembers Jeffrey and Mike
Jungelas, and member Lucia Timlin and nonmembers Jude and im Tim-
lin.
t ie did not identify them. In 1977, the two employees on the referral list
with the highest earnings were Jeakle ($7,281) and Warehall ($5,287).
6All female actors, and some male actors, insist on female dressers. Some
male actors insist on male dressers.
record shows, that she was capable of performing seam-
stress work.
In early 1976, wardrobe mistress Billie White, who works
out of New York with various shows, made a long distance
telephone call to Masinick personally, said that White was
coming into Detroit with the "Sherlock Holmes" show,
and further said that she wanted Masinick to be one of the
wardrobe people in that show. 7 Masinick said, "Fine. Let
me talk to the business agent." White said, "Good." Ma-
sinick then called Dalton, who said he had not yet received
a yellow card on that show. Masinick said, "Fine." She
heard nothing further about the matter until the evening of
the day the show packed in. That evening, White tele-
phoned her and asked why she was not at the theatre work-
ing that particular show. Masinick replied that she had not
been called by the business agent.8 White said that she still
wanted Masinick to work. Masinick said that she would
call her business agent and get back to White. Masinick
then telephoned Dalton, said the show was in town, and
White still would like her to go to work. Dalton said that
the show was set and he could not put her to work so long
as there were card members not working. He suggested
that Masinick call Local Secretary-Treasurer Sophie Ware-
hall about the situation. Masinick then telephoned Ware-
hall, who told her that she could not go to work when there
were card members not working. Masinick thereupon
called White and said that the local had said Masinick
could not work the show. White said that in that case, she
wanted to hire Masinick as a "personal employee" and
would pay her out of White's own pocket. Masinick re-
layed White's statement to Lloyd Dalton, who said, "Fine.
You do whatever you want to do, Barbara, but remember
that you still have to work in this town and this show is
only gonna be here for five weeks." Masinick then told
White that Masinick "couldn't take it."
In August 1976, Lloyd Dalton telephoned Masinick and
asked whether she wanted to go to work. She said that she
was leaving town for a week, whereupon he proceeded no
further.9 The show he had in mind was "Selma," which he
thought was going to run for 3 weeks and which in fact ran
for 8 weeks (see infra, fn. 25).
2. The alleged failures and refusals to refer attacked in
the complaint
In March 1977, Masinick read in the newspaper that the
"Ice Capades" show was coming into town. She telephoned
Dalton and told him she was available for work. He told
her that he had not received the yellow card for the re-
quirements, and that he would get back to her. The Ice
Capades job began on March 15, at the Olympia Stadium.
Masinick was not referred to that show. As of that date,
Masinick's 1977 earnings totaled $164. Of the nine employ-
ees referred to the show, three were members with 1977
Masinick had worked for White previously.
The request to Dalton for wardrobe people had specified one male The
male referred was a nonmember.
9 My findings to the substance of this conversation are based on
Masinick's testimony. For demeanor reasons. I do not accept Dalton's testi-
mortv that she refused to take the show because he did not know how long
the job was.
FISHER THEATRE 681
earnings higher than hers-Darlene Dalton ($384), Lucia
Timlin ($404), and Sophie Warehall ($248).1° About 2 days
after the show came to town, Masinick telephoned Dalton
and asked him why she had not been put on that show. He
told her not to worry about the ice show, that some big
commercial shows, like the Ford and Buick shows, were
coming in that summer. She said that she would wait to
hear from him.
In May 1977, Dalton referred Masinick to a Metropoli-
tan Opera job at the Masonic Temple. She accepted, and
earned about $40.
The Ford show job began on August I at the Ford Audi-
torium. Dalton did not call Masinick for that job. At that
time, Masinick's 1977 earnings totaled $203. Of the 13 em-
ployees referred for that job, 5 were members who as of
that date had higher 1977 earnings than Masinick-Dar-
lene Dalton ($1,161), Joellyn Giddings ($246), Marjorie Ir-
win ($1,251), Lucia Timlin ($1,699), and Sophie Warehall
($905). A sixth was a nonmember who was an officer's
relative and as of that date had higher 1977 earnings than
Masinick-Sandra Irwin ($230).1'
Dalton referred Masinick to a film job with "The Betsy"
company, which lasted from August 4 to 6. The Buick
show job began on August 10 at Cobo Hall. Masinick was
not referred to that job.'2 At that time, Masinick's 1977
earnings exceeded those of the two employees who worked
on the job.'3
About September 8 or 9, Masinick telephoned Lloyd
Dalton, told him that she had read in the newspaper that
the "Hello, Dolly" show was coming to town with a large
cast, said that it would probably need a number of
dressers, and further said that she was definitely available
to work. Dalton said that he had not got the requirements
on that yet, and that "he'd get back." Masinick was not
referred to that show. On the date that job began at the
Fisher Theatre, September 13, her earnings for the year
were $575-less than those of any of the employees re-
ferred to the show except for nonmember Cheryl Craig,
member Mary E. Craig's daugher-in-law ($230). and Dan
Beaudoin, who had no previous 1977 earnings and as to
whom the record fails to show whether he was a member or
kin to a member. The others referred to the show were
members Marjorie Irwin ($3,743), Shirley Jeakle ($6,185).
Lucia Timlin ($4,168), and Sophie Warehall ($4,191): non-
member Deborah Lesch, Lloyd Dalton's daughter
($2,584); and nonmember Virginia Speer ($2.041).
10 The remaining six employees consisted of two members AIvIn Enck
and Bernard O'Shea). two nonmembers who were kin to officers Sandra
Irwin and Emils Warehall). one nonmember ho was kin to a member
(Cheryl Craig). and one nonmember noi shown to he kin to an, member
(Sandra Litterall). None had an' 1977 earnings except Emily Warehall
($90)
11 The other seven were to nonmembers who were officers' relatives
(Sandra illion and eborah Lesch) and file nonmembers who were not
officers' relatives (Jean Brock. Marianna Hoad leanor Matthews. Virginia
Speer. and Linda Stroupel. As of that date. Lesch's 1977 earnings were S29
and Hoad's were $226. Ihe others had had no 1977 earnings.
1' Dalton testified that she could not ha've worked on that job because she
was alread, working on the "Bets," job. It is undisputed that the "BetsN"
job ended 4 days hefoire the Buick job began
These were Union President (Glads Rogers and her daughter. Linda
Rogers.
About September 14 or 15, after "'Hello. Dolly" opened.
Masinick telephoned Lloyd Dalton and asked why he had
not put her to work. Dalton said that he did not know.
Masinick asked if there was a reason she was not being
given work. He said no. She asked whether she was being
blackballed. He said no. She asked why he had put seven
nonmembers 14 on the Ford show. but had not put her on
it. He said that one was a college student who needed
money, and another was getting a divorce and needed
work. Masinick interrupted him and said, "You told me
the need was not the reason." He suggested that they get
together and talk the matter over.
On September 20, 1977, the local received Masinick's
charge herein, alleging that it had unlawfully failed and
refused to refer her to employment at the Ford Auditorium
(the location of the Ford show) and the Fisher Theatre
(where "Hello. Dolly" played) for "arbitrary, capricious
and invidious reasons." On Saturday, September 24, the
day that the "'Regina" job began at the Music Hall, 5 Dal-
ton telephoned Masinick's home. She was not there, and he
left a message that he had called. On Monday, September
26, she returned his call and asked him what he had want-
ed. He said that he had wanted to put her to work at the
Music Hall to do some sewing, but that by this time he had
filled the job. Dalton said that he had received her "'little
message in the mail." She replied, "'Lloyd, you gave me no
choice. I've asked you for work. I've asked why you
weren't putting me to work, your answer was always I
don't know why I'm not putting you to work." He said,
"What makes you think I have to put you to work?" She
said that she thought she had given him good service over
the years, and that when she asked him why he had not put
her to work he kept on telling her that he did not know
why. He said, "I can damn well put to work who I want to
put to work." Masinick said, "I don't believe you're saying
this to me." At this point, he hung up.
Masinick was referred to the "'Carmen" job. at the
Michigan Opera Theatre, which began on October 24 and
lasted until November 5. The Pennsylvania Ballet job be-
gan on November II at the Music Hall. Dalton did not call
her about that job.'6 As of that date, her earnings totaled
$996. That show was worked by nonmember Marianna
Hoad, whose earnings up to that point had totaled $2,298,
and nonmember Cheryl Mull, whose earnings up to that
point had totaled $344.
The "Faust" job began at the Music Hall on February 6,
1978. Dalton did not call Masinick about that job.' 7 At
that time, Masinick had no 1978 earnings. "Faust" was
worked by nonmember Jean Brock (prior 1978 earnings of
$548), nonmember Sandra Litterall (no prior 1978 earn-
ings), and nonmember/officer-relative Janet Williamson
(no prior 1978 earnings).
The Eliot Feld Ballet job began on February 20, 1978. It
4 In fact. eight nonmembers worked on the show. But see lfr. fn 43.
Actuall the Michigan Opera Theatre. which is he same house
iT Ihis findinding is based on %Masinick's testinion I or demeanor reasons.
I do not credit Dalton's testimony on direct examination that he called her
abhou that job and she refused In fact. on cross-examinaion he testified
that he did not recall w hether he specificall talked to her about that job.
' This finding is based on her estimons. When asked whether he specifi-
calls talked io her about that job before it was filled. Dalton replied. "'m
not sure I beliese I did "
FISHER THEATRE
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ran at the Power Center in Ann Arbor for 3 days and then
ran at the Music Hall in Detroit, about 40 miles away, for
2 days. Masinick lives in Warren. Michigan, which abuts
north Detroit. Dalton telephoned her and asked her wheth-
er she wanted to work for 3 days in Ann Arbor, without
mentioning that the show would thereafter play for 2 days
in Detroit. She said that she was not going all the way to
Ann Arbor for only 3 days' work. This job was worked by
nonmember Jean Brock (prior 1978 earnings $917) and by
Jeffrey Livermore (prior 1978 earnings $364), as to whose
union status the record is silent. Later, the local referred
Masinick to "The Wiz" at the Fisher Theatre. This was her
first job in 1978. It began on April 3, and was still in prog-
ress when she testified on April 19. She testified that when
she accepted the job, she thought it would last 5 weeks, but
she understood "through the company" that it would be 6
weeks--that is, until mid-May 1978.
There is no evidence that when Masinick asked Lloyd
Dalton why she had not been referred to a particular job in
1977 and 1978, he ever gave as a reason that she was less
qualified than the members or members' kin whom he had
referred. My findings in this section IIB,2, are directed
solely to these jobs, jobs which she in fact worked, and jobs
which (according to Dalton) he offered her or was pre-
pared to offer her. As to the remaining 1977 and 1978 jobs,
I have made no effort to compare her then earnings to the
earnings of those who in fact worked the jobs. Accord-
ingly, I do not regard the significance of my findings in this
section IIB,2, as affected by Dalton's testimony regarding
the effect of specific or relative qualification on his selec-
tions for referral.
Dalton testified generally that Masinick refused about as
many jobs as she accepted. As to the period after March
1977, I discredit his testimony in this respect, in view of the
specific evidence about which job offers she accepted and
which she declined during this period. In any event, Dalton
testified that employees frequently refuse jobs, and there is
no evidence that such refusals affect the amount of work
they are subsequently offered.
C. The Allegedly Unlawful Refusal To Refer Angela Misko
and Mary, E. Craig
1. Background
Mary E. Craig and Angela Misko both joined the local
in 1968. Misko was admitted to membership, without hav-
ing to pay an initiation fee, as part of a settlement of a
charge which she filed with the NLRB after a union mem-
ber unsuccessfully tried to bump her off a job, Misko re-
ceived no work for the next 3 months, and Dalton told her
she would never again work for the local. At that time, at a
union meeting attended by Craig, the Union's attorney
said "that you do not 'bump' anybody, union member or
nonunion member."
2. The bumping of then nonmember Lucia Timlin
On August 7, 1976, Lloyd Dalton was advised that the
"Selma" job would begin at the Music Hall on August 8.
The evening of that day, Dalton telephoned Craig's home
to offer her a job as a dresser on that show. Craig's daugh-
ter said that her mother was out of town and would be
back about August I I, the day after the show's first perfor-
mance. At 11:45 p.m. on August 7, Dalton tried to get hold
of Misko, but could not reach her. Dalton referred then
nonmember Lucia Timlin to work on that job as a dresser.
Also, after his unsuccessful August 7 effort to reach Misko,
he told his daughter, nonmember Deborah Lesch, to report
to the job at 10 a.m. on August 8 as a dresser. He said,
"You will probably just work one day because I will prob-
ably get ahold of [Misko] tomorrow and she can work on
Monday." August 9, the day before the show's first perfor-
mance.
Misko returned home about 15 minutes after Dalton's
unsuccessful August 7 effort to reach her. So far as the
record shows, he did not telephone her again until 11:45
a.m. on August 8, almost 2 hours after Timlin and Lesch
had started to work on the show. Dalton told Misko that a
show was in rehearsal, that because he had been unable to
reach her he had sent down Lesch and Timlin, and that
Lesch was going to work in Misko's place until Misko got
down there. Misko asked whether it would be "right" for
her to go down and take Lesch off the job that very day.
Dalton replied, "You can do as you want. [Lesch] knows
she is only there until you get there." Misko said, "'Well, if
she is already down there, I don't feel right going down
there and bumping her off the job today. .... I will wait
and go in tomorrow." Misko asked when the dressers were
supposed to report to work the following day, August 9.
Dalton said that he did not know and told her to call the
Music Hall. She did so, was advised that the call was for 10
a.m., and relayed this information to Dalton with the state-
ment that she would be down there. In the evening of Au-
gust 8. Dalton telephoned her that the call was in fact for
August 10 "at half-hour"--inferentially, a half hour before
curtain time. Misko said fine, that she had company, and
that she did not have to go to work the next morning. At
7:45 a.m. on August 9. Darlene Dalton (Lloyd Dalton's
wife) telephoned her that the call was for 3 p.m. that day.
Misko reported to the Music Hall at 3 p.m. on August 9
and started to work as a dresser. There is a conflict in the
evidence, which I do not resolve, about whether Lesch did
seamstress work after Misko came to work as a dresser.
Lesch left the show about August 15, several weeks before
it closed.
Until August 11, Misko was the only member of the
local on the "Selma" show. On August 9, the day she re-
ported to work on that show, Dalton appointed her as job
steward on that show. He asked her whether she under-
stood her duties as job steward, and she said that she did.
Craig returned to town on August 9, but her daughter
did not tell her about Dalton's August 7 telephone call. On
August II11, the day after the show opened, Craig tele-
phoned Dalton and asked who was working on "Selma."
He told her. Craig was incensed at Timlin's assignment
because she had just come off an 8-week show, and told
Dalton that Craig wanted to work the show. Dalton did
not say anything for a moment and then told her not to do
it. Craig told Dalton that she was going down to the show
to bump Timlin. Later that day, Dalton telephoned Craig
and asked if she was going to the Music Hall. She said that
FISHER THEATRE 683
she was. He said that the call was for 7:30. She said that
she would be there at 7 o'clock.
Dalton stated at the Craig intraunion disciplinary hear-
ing (see infra) that at an undisclosed hour on August I I. he
telephoned Timlin and told her. "You may be bumped off
the job today"; that she asked what she was supposed to
do; and that he replied, "That is up to you." He further
stated at that hearing that he told her this "because I could
not tell her to get off the job because then we are breaking
a law." The record contains no evidence from Timlin.
At or about 7:10 p.m. on August 11, Lesch admitted
Misko and Craig to the Music Hall through the stage door.
There is no evidence that Lesch asked what Craig was
doing there. Misko and Craig then went downstairs, below
the stage level. Craig told Misko that she had come to the
theatre to take Timlin's place, that Timlin had been put on
the job after just completing 8 weeks' work at the Fisher
Theatre, that Craig "hadn't been working yet." and that
she wanted to go to work. Misko asked whether she had
talked to Dalton. Craig said yes. Misko asked what he had
said. Misko stated at her intraunion disciplinary hearing
that Craig replied Dalton had asked her whether she was
going to do it and she said yes. The record contains no
evidence from Craig about this conversation with Misko.
Misko then went upstairs to look for Stage Manager
Norma Wright. Wright was not around, and Misko saw
Timlin sitting by Wright's desk with her own jacket and
purse. Misko told Timlin that Craig was there and wanted
to work in Timlin's place, and asked whether Timlin had
talked to Dalton that day. Timlin replied that Dalton had
telephoned her that she might be bumped by a "Union
person." Misko then asked Lesch, who was also present,
where Dalton (her father) was. Lesch replied that he was
working. Misko said that she knew this, but had to get in
contact with him to find out what to do. After that, Misko
told Music Hall General Manager Mason that a union
member wanted to work because she had not had work for
a while, that Misko had not been able to contact Dalton,
and that she could not find Wright. He replied that he did
not know what to tell her, that "This is entirely up to your
Business Agent . . . and you and whoever it is are sup-
posed to settle this. We don't like people working a show
and then getting off of a show." Misko then asked Lesch to
call Dalton, tell him what was happening, and ask him to
call Misko. Lesch went away, came back and did not tell
Misko whether Lesch had reached Dalton. Dalton stated at
the Craig intraunion disciplinary hearing that Lesch did
not know where he was working, and did not call him that
night.'8
Meanwhile, Stage Manager Wright came downstairs.
Craig still had her coat on and was ready to go home.
Misko told Wright that "we have a problem." Wright
asked what was going on. Misko told her. Wright said, "I
simply refuse to go along with this. I will not send [Timlin]
home unless I have authorization from Lloyd [Dalton],
your business agent." Misko said that Wright had that
right, and that Misko would try to telephone Dalton. Mis-
ko then obtained a telephone number from Craig and
It Lesch's affidavlts (see molra) do notl llude to Misko's cfforts to reach
L)allton
called Dalton's supervisor at the theatre where he was
working. Dalton's supervisor told her that Dalton was out
on the job and could not be called to the telephone at that
time. She left a message asking Dalton to telephone her at
the Music Hall, that an "emergency" had come up. Misko
then returned to Wright and Craig. and said that Misko
had called Dalton and left a message telling him to call
back. Wright said that she would not "go along with it"
and left. Craig said that she thought she had better go
home. Misko said that she did not know what to tell Craig.
At this point. 10 minutes after Misko's call to the theatre
where Dalton was working, Wright came downstairs and
said that she had received a telephone call from him.
Dalton stated at the Craig intraunion disciplinary hear-
ing that he received Misko's message to call him. For unex-
plained reasons, when he telephoned the theatre he spoke
to Wright instead of Misko.' 9 At the Craig intraunion disci-
plinary proceeding, he stated that Wright said she did not
have time to talk with him because the show had started,
he asked her what was going on, she told him and asked
what she could do about it, and he said, "seeing as how
[Craig] has already bumped [Timlin] off the job and the
show was already started, there is not much you can do
about it." Wright's affidavit (infra) attributes to Dalton the
statement, "if Mrs. Timlin had already been bumped, even
though it was without his knowledge or the sanction of the
union, and the curtain had gone up. there was nothing
[Wright] could do about it." Dalton stated at the Craig
intraunion disciplinary hearing, and Wright's affidavit
states, that this telephone conversation occurred at 8:45
p.m. Misko stated at the disciplinary hearings that Wright
relayed the substance of her telephone conversation with
D)alton at about 8:10 or 8:15 p.m.. about 10 minutes after
Misko's call to Dalton's supervisor; that the curtain did not
rise that evening until 8:50 p.m. (45 minutes late) because
the star performer was late; that Wright reported the tele-
phone conversation before the curtain rose: and that
Wright could not have conversed with Dalton after the
curtain went up because Wright gave all the cues for the
show. Craig stated at her intraunion disciplinary proceed-
ing that it was 7:55 p.m. when Wright said that she would
not go along with the change until she heard from the busi-
ness agent. Craig further stated at that proceeding that af-
ter the show started, Wright asked "how could we possibly
bump two union people off the job." Craig asked where she
got the idea that Timlin and Lesch were union people, and
Wright said that Dalton had told her that. Misko stated at
her intraunion disciplinary hearing that Craig said Timlin
and Lesch were not members, and Wright said she had
been informed that they were members or about to get a
card. 20 Dalton stated at the Craig intraunion disciplinary
proceeding that he never told Wright that Lesch (his
daughter) or Timlin was a union member. I conclude that
Wright's remarks to Craig were based on inferences drawn
by Wright, perhaps from sources in addition to her conver-
sation with Dalton.
1r, %llht' affidait Cee rTtl If pllp h (fh I)lljlton asked to spcak to her
I here is no c dencc that he sked to speak to \t sko.
' I here is no edetce that esech ever became a member. the circurm-
stlnces surrunding rimlin's acqulisii on of membership aIhut September
1976 are dI. cussedl ,lrl, See epccI sec i11.(.4
FISHER THEATRE 83
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Wright came downstairs, she said that Dalton had
called her "and he said to go along with it.... This is the
only reason I am going along with it." Misko asked wheth-
er this meant Craig was going to stay, and Wright said yes.
Wright told Misko to go upstairs and tell Timlin not to
leave yet because Wright had to give her some money. Mis-
ko went upstairs, delivered this message, said that Craig
had "gotten the okay from Dalton] to put her to work,"
and asked Timlin to come down and give Craig her
changes (inferentially, instructions regarding costume
changes during the performance). Timlin gave Craig these
changes, and then packed up her things and left the the-
atre.
After reaching home in the evening of August 11, Misko
telephoned Dalton's home. He was not there, and she left a
message asking him to return her call. On August 12, he
telephoned her and asked what she wanted. She asked him
whether he knew that Craig was working at the Music Hall.
He said that Craig had so advised him. Misko said that
according to Timlin, Dalton had told her to expect to be
bumped off her job. Misko said, "When [Wright] came
down and told me that she got your call to go along with it
and what else was I supposed to do? . . . You never re-
turned the call."
On an undisclosed later date prior to November 9, 1976,
Wright told Misko that she and Craig had done a good job
but that Wright did not favor replacing a worker.
My findings in the foregoing portions of this section II,
C,2, are based on a composite of (1) credible portions of
the testimony given before me by Craig, Misko, and Dal-
ton; (2) credible portions of the transcripts of Craig's and
Misko's intraunion disciplinary hearings, which transcripts
were received as probative of the truth of the matter assert-
ed; and (3) credible portions of two affidavits by Lesch and
two affidavits by Wright, all of which affidavits were read
into the transcripts of the disciplinary hearings, and all of
which were likewise received as probative of the truth of
the matter asserted.2' For demeanor reasons, I credit
Craig's testimony before me about her August 11 conversa-
tions with Dalton, which testimony is substantially similar
to her statements at her disciplinary hearing; and to the
extent inconsistent with her testimony, discredit Dalton's
testimony, substantially similar to his statements during
her disciplinary hearing, that during both of the conversa-
tions he told her not to go down and bump Timlin and
during the first conversation he also said, "we are a very
small union . .. we can't afford something like this. You're
going to get us in trouble with the management, you're going
to get us in trouble with the government. It's against the law.
. . .You can't go down there because I won't sanction it."
I note that at Craig's disciplinary hearing, Dalton stated that
the second telephone call was initiated by him and that he
told her "what the half-hour was" (inferentially, her reporting
time, a half hour before curtain time). This admitted assis-
tance to Craig in her efforts to displace Timlin is somewhat
inconsistent with his testimony that during the same tele-
2 Although objecting on relevancy grounds to the receipt of this written
material, the General Counsel disclaimed any objection to its consideration
to show the trult of the matters asserted.
phone conversation he told Craig not to make any such
efforts. In addition, I discredit Dalton's statementat the Craig
disciplinary hearing that he told Wright there was not "much"
she could do about the Craig-Timlin matter because the show
had already started. The record preponderantly shows that
the show had not yet started that evening. Moreover, even
if it had, Dalton's alleged remarks are difficult to reconcile
with the uncontradicted evidence that one performance of
the show had already been given, with Timlin as dresser, and
to Dalton's knowledge the show was scheduled to run for
several weeks thereafter. Assuming that it was impracticable
to discontinue using Craig for the August 11 performance,
no reason appears why Daalton would have regarded Wright
as bound to retain her for all subsequent performances if
Dalton had really regarded Timlin's displacement by Craig
as improper. 22 For similar reasons, I do not accept the some-
what similar statements in Wright's affidavits. 2 Rather, be-
cause Wright had initially refused to accept Craig without
authorization from Dalton, and because after receiving the
call she accepted Craig on the ground that Dalton had called
Wright and "said to go along with it," I infer that he told her
that Craig was to displace Timlin. 24 Further, in view of my
findings as to the Wright-Dalton conversation, I do not accept
the statements in the Wright affidavits that prior to that
conversation Misko and Craig told Wright that Craig was
bumping Timlin off the job. Also, in view of Craig's and
Misko's statement at Craig's disciplinary proceeding that her
daughters were not qualified seamstresses, I do not accept
that statement in the Wright affidavit read into that record
that Craig told Wright that Craig's daughter should replace
Lesch as a seamstress. Nor do I accept the statements in the
Lesch affidavits about the August I Misko-Timlin and
Craig-Timlin conversations as to the bumping matter, which
Lesch statements contain no reference to the Dalton-Wright
telephone conversation.
3. The Michigan Opera Theatre's alleged objections to
Misko's and Craig's employment
As previously noted. "Selma" opened on August 10,
1976. Dalton stated at the November 1976 Craig discipli-
nary hearing that it ran for 8 weeks-that is, until October
5.2 In the absence of contrary evidence, and in view of
industry custom, I infer that Craig and Misko continued to
work on the "'Selma" show until it closed.26 Dalton au-
thenticated without contradiction a carbon copy of a pur-
ported letter to Misko from him dated September 28,
:2 As discussed infra, when L)alton reported the bumping incident to In-
ternational President Walter F. Diehl several weeks before the show closed.
Diehl said that the person bumped from the job should be put back to work.
23 Her affidavit in connection with the Craig hearing states, "When the
events were finalized, the show had already started and Mr. Dalton told me
that I really could do nothing about it." Her affidavit in connection with the
Misko hearing states. "He told me that if Mrs. Timlin had already been
bumped. even though it was without his knowledge or the sanction of the
union, and the curtain had gone up, there was nothing I could do about it."
24 Fed. R. Evid. Rule 803(3). See also American Rubber Products Corpora-
tion v. ,L. R.B.. 214 F.2d 47. 52 (7th ('ir. 1954).
2 Masinick. who did not work on that show. testified at the April 1978
hearing that it ran for 7 weeks that is. until September 28, 1976. I regard
[)alion's relatively contemporaneous recollection as more reliable.
26 Dalton's intraunion charge against Craig averred that she took Timlin's
place for "the run of the show."
FISHER THEATRE 685
1976-that is, while "'Selma" was still running at the Music
Hall-enclosing a copy of a letter purportedly from Robert
Heuer, the managing director of the Michigan Opera The-
atre, which is the same house as the Music Hall. The al-
leged Heuer letter states:
This letter to [sic] to inform you that the manage-
ment of Michigan Opera Theatre will not accept Mary
Elizabeth Craig or Angie Misko as wardrobe person-
nel.
Following much discussion and evaluation by the
staff of the opera it is felt that these two people are
counter-productive to the goals of the opera company.
The management believes that Ms. Craig and Ms.
Misko are unproductive and create a very unpleasant
working condition for the rest of those involved in
each show.
Thank you for your help in the past and I look for-
ward to good working relations between Michigan
Opera Theatre and Local #786.
The Heuer letter is dated September 24. 1976. Dalton
testified without contradiction that after receiving this let-
ter, he met with Heuer. Misko, Craig, Wright, and someone
named Abe Mais. Still according to Dalton's uncontra-
dicted testimony, he tried to get Heuer to change his mind.
and Heuer said that "what [Miskol had done at the
["Selma"] show was completely out of line and he would
not have a person that condoned this type of thing working
for him . .. [Misko and Craig] did not have the same goals
that the Michigan Opera Theatre had and it would be det-
rimental to their companies to have people go down and
arbitrarily bump people off the job." The letter to Misko
authenticated by Dalton reads as follows:
This enclosed copy of the letter I received from the
Michigan Opera Theatre is self-explanatory and is the
reason why I did not call you to work on the present
production at the Music Hall.
I spoke to Mr. Heuer about this matter and he ex-
plained to me that the decision of the board was final.
The record fails to explain why the possibility of Misko's
employment on a present (as of September 28) show had
allegedly suggested itself to Dalton on a date when Misko
was already working on a Music Hall show which ran until
October 5. Furthermore, the record shows that the Music
Hall and the Michigan Opera Theatre use the same stage.27
4. Timlin's unfair labor practice charge
On August 16, 1976, Timlin filed a charge in Case 7
CB-3607, alleging in substance that on August 12. 1976.
Local 786 "by and through its agents violated [Sec.
8(b)(1)(A) and (2)] by allowing a union member [naming
Craig] not already on the job in question to bump [Timlin]
from her position as dresser." The charge named Lloyd
Dalton as the union representative to contact. On an undis-
27 This finding is based on Dalton's tesilmon that the ;ire "the salme
house," and on the fact that the emploumenl records f wardrobe personnel
between Januar 1. 1977. and April 16. 1978. shoA that nohobd s wo ,rk-
ing at the Music Hall n dates ahen somebods else was working it the
Michigan Opera Theatre.
closed subsequent date, but before September 21, 1976, Lo-
cal 786 settled this charge by paving Timlin $200 backpay
and permitting her to join Local 786 without paying the
customary $200 initiation fee. By letter to Dalton dated
September 21, 1976, the Regional Director stated that he
had approved the withdrawal of the charge.
5. The fines imposed on Misko and Craig
On an undisclosed date between August II and Septem-
ber 17. 1976, Dalton telephoned International President
Walter F. Diehl and told him that "a member had gone
down and bumped a person off a job." Diehl said that "it's
absolutely illegal to bump anybody off a job," referred him
to a particular court decision,.2 that the person who had
been bumped from the job should be put back to work.
and advised Dalton to bring the two persons up on
charges.
So far as the record shows. Dalton made no effort to
restore Timlin to the "Selma" show, which did not close
until about October 7. 1976. On September 17. 1976. he
filed intraunion charges against Misko and Craig. Dalton's
charge against Misko read in part as follows:
While acting as Steward [Miskol allowed Mar E.
Craig to "bump" Lucia Timlin off the job as dresser
on the show "Selma" at the Music Hall. At the time
she knew this was against the working rules of our
Local and from past knowledge that it is against a
federal law and would leave us open to litigation. Two
days prior to this action I asked [Miskol if she knew
what the duties of a Steward were. She said she did. As
of this date she has never personally called me. Ac-
cording to our Constitution and By-laws she should
have informed me of this action as soon as possible.
His charge against Craig read in part as follows:
[Craig] went into the Music Hall and "bumped" Lu-
cia Timlin, a non-member, off the job as dresser and
took her place for the run of the show "Selma." [Craig]
called me twice that day prior to this action telling me
what she intended doing. I told her she could not do
this as it is against the working rules of our Local and
in violation of a federal law. I also told her it could
cause trouble between the union and management and
could possibly result in a lawsuit being brought
against our local. I told her that the union and I would
not sanction her action. She went ahead on her own
and bumped Lucia Timlin off the job anyway.
Accompanying each of these charges was a notice that
the hearing would be held before the local's executive
board at a specified location, date, and hour: a specifica-
tion of the written union rules allegedly breached and of
the union rules relating to charges, trials, and appeals: a
copy of all such rules: a statement that the acts complained
of were committed with the personal knowledge of, inter
alia, nonmembers Lesch and Wright: a statement that the
P t t.. lulba Lo.,al ,-.t 5 / S , tlotn Pture ()peruhlll Ln, l.ffd 440
I 2d 205 ( 1thl(ir 1971). cert denied 405 ; S. 976(1972) I hls cse held t
unla ful rfor union to enforce ain nternal rule hlch caled for humping
prisllecc hliesti ed on ltl (1[ len lllll rlilihcl htll
FISHER THEATRE 85
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged member was entitled to bring as many witnesses as
she chose and to be represented by a fellow member as
counsel; and a statement that a postponement could be
requested of the executive board if the charged member
could not attend on the specified date.
By letter of the International dated October 9, 1976,
Craig stated, inter alia:
I cannot imagine how a business agent of an IA local
can prefer charges against his members while fighting
for outsiders . . . [Dalton] constantly uses outside
help without giving his members an opportunity to go
on the job. What I would like to know is do I
have grounds for filing countercharges against [Dal-
ton].
No such charges were ever filed by Craig or (so far as the
record shows) Misko.
Craig's case was heard on the morning of November 9,
1976, and Misko's in the afternoon. Misko' represented
Craig at Craig's hearing, but was apparently unrepresented
at her own. Both women attended both hearings, made
statements on their own behalf, and brought with them
other individuals who made statements on the women's
behalf. Dalton made statements at both hearings in sup-
port of the charges. Also, affidavits by Lesch and Wright
were read into both records. The records in these cases
include evidence as to virtually all the events summarized
supra section II,C,2, including evidence regarding the Au-
gust 11 Craig-Dalton, Wright-Dalton, and Misko-Wright
conversations. 29 The hearings were attended by the local's
executive board, consisting of President Rogers (who pre-
sided), Vice President Alvin Enck, Secretary-Treasurer So-
phie Warehall, and Sergeant-at-Arms Shirley Jeakle. No
claim has been made that the hearings were in any way
procedurally defective.
That same day, the local's executive board issued deci-
sions finding both women "guilty as charged." As to Craig,
the decision summarized the charges as: "She went into the
Music Hall and 'bumped' a nonmember off the job as
dresser and took her place for the run of the show 'Selma.'
This action subsequently led to charges being brought
against our Local by the N.L.R.B. She knew the rules and
regulations of our Local prohibiting such action." As to
Misko, the decision summarized the charges as, "While
acting as Steward on the show 'Selma,' knowing full well
the duties and position of a steward, allowed [Craig] to
'bump' a nonmember off her job as dresser." Identical
fines were imposed on each woman (see infra). Also on
November 9, the membership upheld both decisions.
Both Craig and Misko had been charged with violating a
local bylaw forbidding "Conduct unbecoming a member
or that which is contrary to trade unionism, or that which
would bring discredit to this local or the [International]";
an international constitutional provision forbidding a
member to "breach his duty as a member by violation of
the express provisions of this or the local union's Constitu-
tion and By-Laws or . . . such conduct as is detrimental to
29 Both Craig and Dalton testified before me about their August II con-
versations. Such testimony was much the same as their statements at the
disciplinary hearings.
the advancement of the purposes which this [International]
pursues, or as would reflect discreditably upon the [Inter-
national]"; and an international bylaw which forbids a
member to "himself [violate] any of the rules governing the
conditions of his employment, or [fail] to report such viola-
tions on the part of others, or [to] directly or indirectly [aid]
an employer who does not maintain the standards set forth
in this Constitution and By-Laws." Misko had also been
charged with breach of a requirement in the local's consti-
tution that the steward "shall report any infractions of the
rules of this local union or of the [International] and shall
call the attention of the Business Agent to the same." Craig
had also been charged with breach of provisions in the
local's and International's constitutions requiring members
to observe the constitution and bylaws of both, and of a
local bylaw stating. inter alia, "No member shall assume
any position without clearing the job through the Business
Agent's office except in an emergency." The clause con-
taining this last provision also requires the business agent
to "always notify members of any vacancies occurring [in
local theatres] before allowing nonmembers to be hired."30
On February 8, 1977, the local membership heard
Craig's and Misko's appeal of the executive board's deci-
sions and found them "guilty as charged."
The executive board's November 9, 1976, decision had
imposed on Craig and Misko, respectively, a fine consisting
of one-third of the total costs resulting from her action and
the trial. "This shall include the initiation fee for and mo-
nies paid to Lucia Timlin, the cost of the court recorder
and transcript, telephone and mailing charges pertaining to
this case." By respective letters to them dated February 8,
1977, the date the membership denied their appeal, Local
President Rogers advised each of them that her fine
amounted to $217.38, and "To remain a member in 'good
standing' the amount must be paid within 30 days of this
date."31
About 8:20 p.m. on June 5, 1977, Craig telephoned
Lloyd Dalton's home. He was not there, and she left a
message with his wife, Darlene Dalton, that if a call came
in for the Marcel Marceau show, Craig was available for
work. Craig stayed up until I a.m. and did not get a call.
She left her house at an undisclosed hour on June 6. When
she returned, she received a message that Dalton had tele-
phoned in her absence. In the afternoon of June 6, she
returned his call. He said that he had been trying to get in
touch with her for the Marcel Marceau show. She said that
she had waited for his call until I a.m. He said that Local
Sergeant-at-Arms Marjorie Irwin "is down on the show
now until I can get in touch with you, and she will leave the
show and you will replace her down there." Craig said,
"You have charges against me for replacing a woman on
the ["Selma"] show and now you want me to go down to
Marcel Marceau and replace this woman on the job. I will
not go." 32
At Craig's disciplinary hearing, she read this provision aloud.
Each letter also said that the local would not "be responsible beyond"
the itemized "total costs incurred b) Local 786 as a result of the actions of"
Craig and Misko.
32 Dalton testified that G.C.Exhs. 4 and II show the work and earnings of
each employee on the local's referral list for the first 10 months of 1977 and
the entire calendar year of 1977, respectively. These documents purport to
FISHER THEATRE 687
On an undisclosed date prior to June 20. 1977, Misko
and Craig both appealed their fines to International Presi-
dent Diehl. He referred the appeal to international repre-
sentative Barbara Robinson, who read the transcripts of
the hearings. She discussed certain portions of the tran-
scripts with Diehl, and after preparing a first draft of the
answers to the appeal, also discussed the draft with him. By
letter to Craig dated June 20, 1977, Robinson denied the
appeal. This letter states, in part:
There is no question that you did in fact bump the
non-member even though the Business Agent told you
not to do it. (See transcript.) "3 You admitted, moreover,
you went down to the Music Hall "with the idea of
replacing thisgirl" ... Although it was generally known
in the Local that thepractice ofa union memberbumping
a non-memberwas unlawful, you asserted at the trial that
the Business Agent was at fault because he should have
seen to it that the non-member was removed.3 4
Also by letter dated June 20, 1977, Robinson denied
Misko's appeal. Robinson's letter states, in part:
. . . the evidence adequately supports the finding of
guilt reached by the Trial Board and upheld by the
membership . . . admittedly, you knew that Sister
Craig was there to bump the non-member. . . . You
claimed that you tried to reach the Business Agent for
instructions but were unable to make contact and then
accepted what someone else reported about his having
approved the bump. After that you say you told the
non-member to give the member the changes called
for in the show.
The Business Agent denies that he authorized the
bump and certified that when he was told that Sister
Craig had already replaced the non-member and that
the show was already on, he merely said there was
nothing he could do about the situation at that time.
While there is some conflict in the testimony the
Trial Board obviously credited the Business Agent's
version of what occurred and disbelieved yours. The
membership did likewise in upholding the verdict of
guilt. On the basis of the evidence in the record. I
cannot say this finding was in error.
The last job to which Dalton referred Misko was a I-day
job at the Masonic Temple for the Metropolitan Opera on
May 24, 1977. About July 25, before receiving the July 27
letter from Local Secretary-Treasurer Sophie Warehall de-
set forth Marjorie Irwin's earnings, hut do not refer to the Marcel Marceau
show.
33 Craig there stated that. during their first August I I telephone onsersa-
tion, Dalton told her not to bump Timlin. That transcript shows a further
statement by her that later that day, Dalton telephoned her. asked if she was
going to the Music Hall that night. and when she said es, said "Be there at
7:30. The call is for 7:30"
4 ('f. supra, fn 30 and attached text. The letter referred to ('raig's state-
ment to Dalton. "You mean to tell me being a member of this l.ocal and
I 1imlhnI being a non-member, ou couldn't have said to 11 Imlhn]. '('raigl is
in town. She wants to work this show. You have lust worked an elgh(-week
job. I think it would he advisable for sou to get off.' Wh couldn't ou have
said that? I know it is breaking a law technlcalls .
scribed infra, Misko telephoned Dalton and asked for work
on a forthcoming Ford commercial show, a job which be-
gan on August I. He said. "Yes. I don't have how many it's
going to take. As soon as I get the call of how many it takes
I'll bet back to you." About a day later, and still before
Misko had received the July 27 Warehall letter. Dalton
telephoned Misko and asked whether she was going to pay
her fine. She said no. He said. "Well, according to a letter
that I have today, if I were you I would pay the fine. In
fact, it would behoove you to pay the fine." Misko said
that she was not going to pay the fine, that she felt she had
been wrongly fined, that she was not going to pay Timlin's
wages, and that Misko would not pay the fine until she was
informed that she should pay it. Misko has never paid the
fine. She testified at the hearing that she had no intention
of paying it because she thought the executive board's deci-
sion was wrong.
Craig never paid the fine because, she testified, she did
not think it was right. When asked at the hearing why she
did not think it was right, she said that Timlin had brought
charges against the local, but not against her. Craig further
testified that she had never tendered this explanation to the
International, and there is no evidence that she ever ten-
dered it to the local.
About July 26, 1977, Dalton telephoned International
President Diehl and asked "what we were going to do be-
cause [Misko and Craig] still claimed they didn't do any-
thing wrong." Diehl told him to collect the fine. Dalton
said that they did not want to pay it, that they still claimed
they had not done anything wrong. Diehl told Dalton not
to refer them out until they admitted they had done some-
thing wrong in bumping.
By separate letters dated July 27, 1977, Local Secretary-
Treasurer Sophie Warehall advised Craig and Misko, "it is
now the decision of the Executive Board of Local 786. . .
that you are no longer entitled to be called for work under
our jurisdiction until such time as your fine and all other
financial obligations to this local are paid." Dalton testi-
fied that the local sent this letter partly because of what
Diehl told Dalton and partly' because of the local's posi-
tion.
These letters to Craig and Misko show on their face that
Diehl received courtesy copies. He testified that between
June 20, 1977, and a September 15. 1977, letter to him from
the local, which letter advised him that Misko and Craig
were threatening legal action (see infra), he had no conver-
sations about them with Dalton and had no memory of
any letters about them from the International to the local.
Diehl further testified that between the September 15 letter
and the International's September 29, 1977, response (see
infra), he had no conversations with Dalton about Craig or
Misko and had no memory of any other letters about them
from the International to the local. At no time after send-
ing Misko and Craig the July 27. 1977. letters did the local
refer them to employment.
MI' findings In this paragraph are based Ion Dalton's tetitnoin. Dichl
testified that the consersation Inoled Misko and ('raig. and that their
failure to pa? the fines came up during this consersatlion For demeanor
reasons, I discredit D)iehl's testimons that during his telephone consersation
with I)alton. l)iehl did not adslse him not to refer, and Dlehl's further
testimons hit he never instructed or adsised anxbohd front the local notl to
refer \lisko or ('raiig
FISHER THEATRE
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Misko paid her dues for the first and second quarters of
1977. About July 27, 1977, she sent a check to the Union
for her third quarter's dues. Local Secretary-Treasurer So-
phie Warehall returned her check with a covering letter
stating, "I am sorry. I cannot accept your check until such
time as your previous financial obligations are paid in
full." Craig paid her dues for the calendar years 1977 and
1978 (the hearing was held in April 1978). In September
1977, Warehall sent her a postcard stating that the next
regular meeting would be on September 19, "But as a
member not in good standing you cannot attend this meet-
ing." The local has not expelled Craig or Misko from mem-
bership and has not sought to enforce the fines in civil
court.
6. The alleged discrimination against Misko and Craig
Misko did not obtain a job through the local after May
24, 1977, and Craig did not obtain one after April 10, 1977.
At the end of August or the beginning of September 1977,
Craig telephoned Joseph Nederlander, who is the general
manager of the Fisher Theatre and whose late father had
been a close friend of Craig's father-in-law. Craig asked
whether she could come in to see him because "We were
having problems with the union." He told Craig to come
in. Within the following week, Craig and Misko met with
Nederlander in his office. Craig introduced Misko to Ned-
erlander, who asked what they were there for. Craig said
that they wanted to work, they were having "problems"
with the local about charges that had been brought against
them, "the union" had denied them work, and they would
like to work the "Hello, Dolly" show, which was to play at
the Fisher Theatre. This statement aside, there is no evi-
dence that they told him the nature of their union "prob-
lems." Nederlander said that he would telephone Lloyd
Dalton, and obtained his telephone number from Craig.
Then, and while the women were still sitting near his desk,
Nederlander telephoned Lloyd Dalton's home. The tele-
phone was answered by his 16-year-old son, Thomas Dal-
ton, who told Nederlander that his father was not there.
Nederlander asked Thomas Dalton to tell his father that
Nederlander had just hired two wardrobe people, Misko
and Craig, for the "Hello, Dolly" show, but other wardrobe
personnel would be needed on the show and Lloyd Dalton
would be notified how many.3 6
Lloyd Dalton credibly testified that his son told him that
Nederlander had telephoned and said he had hired Misko
and Craig for the "Hello, Dolly" show.3 That job began on
36 My findings in the foregoing paragraph are based on a composite of
credible portions of the testimony of Craig Misko, and Nederlander. For
demeanor reasons I do not accept Misko's testimony that Nederlander told
her and Craig directly (1) that he could hire whom he wanted. (2) that he
had no contract with the local, (3) that he had a verbal agreement with
Dalton that Nederlander would hire union people. and (4) that the women
were hired. For demeanor reasons I do not accept the testimony of Neder-
lander, who admittedly had a very poor recollection of the conversation.
that he told the two women that he would try to get a job for them through
Dalton. and that his message to Dalton was that Nederlander would like to
have these two women for consideration or to be given "every consider-
ation."
37 Darlene Dalton. who is Lloyd Dalton's wife and Thomas Dalton's
mother, testified that she saw a note from her son to her husband stating
September 13. Before calling wardrobe personnel for the
show, Lloyd Dalton told Nederlander that his action in
connection with Misko and Craig "did not go along, that
we normally supplied the people, that [Nederlander] did
not hire them on his own," and that "it's never been done
that way in the past." Nederlander said that hiring Misko
and Craig was "against the general practices that we had,"
but that Misko and Craig had claimed that Dalton was
against them and would not put them to work. Dalton told
Nederlander "about them going down and bumping a per-
son out of the job," showed him the intraunion charges
against Misko and Craig, told him about or showed him
the International's denial of their appeal, told Nederlander
about their intraunion trial and how much their fine was,
and told him that they had refused to pay it. Nederlander
told Dalton to tell them to pay the fine and then they could
go to work.3 8
On September 9, after receiving from the local the previ-
ously described postcard stating that Craig was not a mem-
ber in good standing, she telephoned Nederlander and
asked him what he had heard about the "Hello, Dolly" job,
which had not yet begun. Nederlander said, "Betty, I can't
hire you." She asked why. He said, "Because the IA has
charges against you. Why don't you pay your fine?" Craig
said, "I won't pay the fine, it's not fair." Nederlander told
her to pay her fine "Because what they did deserved to be
fined for."
About September 10, Craig telephoned Misko that they
were not going to be able to work "Hello, Dolly." Misko
asked why not. Craig said that she had telephoned Neder-
lander to ask what the call was and he told her he could no
longer put them to work.3 Thereafter, on September 11,
Local President Rogers telephoned Misko and said, "I'm
calling to tell you, you're not supposed to work 'Hello,
Dolly.' You should not go down and work 'Hello, Dolly'."
Misko said that she had already heard that. Rogers asked
who had told her that, and she said Craig. Rogers said,
"Lloyd had gone down to see Joey Nederlander [and] he
had a letter from Walter Diehl, and he showed Joey the
letter, or talked to Joey about it, and from that letter Joey
has decided not to let you work because you have a charge
against you from the local union, and the IA knows about
it . . . [I] talked to Walter Diehl at a convention. Walter
Diehl likes Lloyd very much. He has nothing against Lloyd
. . I haven't seen the letter but talking to Lloyd on the
phone that the letter as much as said from Walter Diehl
sock it to them broads." 40
that Nederlander had called and left the message, "I have two women avail-
able for 'Dolly'." She testified that the word "available" was an unusual
word for her son to use, and that she remembered it because it was miss-
pelled and a 16-year-old should be able to spell it. Thomas Dalton lives with
his parents. but the local did not call him as a witness. I do not regard Mrs.
Dalton's testimony as inconsistent with Misko's and Craig's direct testi-
mony about what Nederlander said or Lloyd Dalton's direct testimony
about what his son told him: but assuming such inconsistency, I would
accept the direct testimony in preference to Mrs. Dalton's.
This finding is based on Dalton's testimony. For demeanor reasons. I
do not accept Nederlander's denial.
9 This finding is based on Misko's testimony, which I do not find proba-
tive of the actual contents of the Craig-Nederlander conversation.
4 My findings as to the contents of this conversation are based on
Misko's testimony. which as to the truth of Local President Rogers' asser-
tions was received as to the local only. Diehl testified that between June 20
FISHER THEATRE 689
On the following day, Rogers telephoned Craig and said,
"You are not to go into the Fisher to work. Joey cannot
hire you." Craig said, "Yes, I know." Rogers said, "Did
you call Joey or did he call you?" Craig said, "That's not
important."
The "Hello, Dolly" job began at the Fisher Theatre on
September 13. Of the seven wardrobe employees who
worked that show, as of their referral, five had higher earn-
ings than either Craig or Misko.4'
By letter dated September 15, 1977, Dalton forwarded to
Diehl a copy of a September 2, 1977, letter to Dalton from
attorney Howard L. Shifman, which stated that he repre-
sented Misko and Craig. Shifman's letter alleged that "the
actions by both the local and the international union [re-
garding the assessment of the fines] are the result of mali-
cious conduct on the part of certain union officials, includ-
ing certain members of your own local .. this constitutes
a flagrant violation of my clients' civil rights, as protected
by both the State and Federal constitutions [and] violates
the spirit and intent of all Federal and State labor legisla-
tion designed to protect Union members from unjust treat-
ment." The letter stated that judicial proceedings for rein-
statement in the Union and for punitive damages would be
instituted against the local, the International. and "all of
the persons who participated in the willful violation of my
clients' rights," unless their union dues were accepted
forthwith without their being' required to pay the fines.
Dalton's covering letter to Diehl stated that the local had
very limited funds and no counsel of its own, and request-
ed Diehl's advice and assistance. By certified letter, return
receipt requested, to Dalton dated September 29, 1977, In-
ternational Representative Robinson said:
In answer to your letter of September 15. 1977 to
President Diehl regarding the charges against Mary
Craig and Angela Misko, there is nothing the Interna-
tional can do about the matter once we have rendered
our decision. As stated in our decision of June 20,
1977, we think the local was correct in its disposition
of the charges and we are aware of no "malicious con-
duct" on the part of any officials of the local, such as
is charged in the letter of September 2, 1977 by the
attorneys for the accused.
It is entirely up to the local what it wants to do
about the matter at this point. The attorneys are sug-
gesting a meeting in an attempt to reach "an amicable
resolution" of the problem. There is nothing wrong
with the local having such a meeting to explore the
possibilities of working out a solution without the ne-
(the date of the letters dening Misko'a and Craig's appeals) and September
15. 1977. he had no memors of an) correspondence from the International
to the local regarding Miskio or (raig. Rogers did not tetifs. and )alton
was not asked about this matter.
41 As of September 13. 1977. (raig's 1477 earnings totaled about $1.301
and Misko's totaled about $1498. The wardrobe personnel on the shov,
included Marjorie Irwin ($3734). Shirle) Jeakle ($7.184). Deborah l.esch
($2.584). Lucia Timlin ($4,170). and Sophie Warehall tS4,1901 I)alton testi-
fied that he would not have called Craig or Mlisko iio that show because
"they broke one of the union's rules bh going down and soliciting their orwn
job." In view of my finding nlra that the local had been acting unlav fulls
in refusing to consider them for referral to an\ job I regard Dallon's tesil-
mons in this respect as immaterial to their right to retain he "Hello. D)oll,"
Job.
cessity of going through litigation. If no amicable solu-
tion is reached, apparently a suit will be started and
that, of course, will involve expenses on the part of the
local.
I must caution you to make certain that there is no
interference whatsoever with the employment oppor-
tunities of the accused members. Under the law, even
though they may stand expelled for non-payment of
the fines, the local has no right to prevent them from
working and if the local does anything at all to cause
them to be denied employment because of their status,
it can result in damages being assessed against the lo-
cal. You should take this into account when vou con-
sider the advisability of trying to work out a suitable
settlement.
The last paragraph of this letter was included at the in-
structions of International President Diehl. So far as the
record shows, no copy of this letter was shown to Misko or
Craig.
Lloyd Dalton testified before me on April 18, 1978, that
it was not true that in order to be considered for employ-
ment, Misko and Craig would have to pay their fines, but
"I would imagine" they would have to pay any past dues
and past service charges that they might owe. He further
testified that as of October 20. 1977, the date of his pre-
hearing affidavit, Misko and Craig would also have had to
pay their fines to have been considered for employment.
As an adverse witness called by the General Counsel, Dal-
ton testified that the local had failed to refer Craig or Mis-
ko, not because they had failed to pay their fines, but be-
cause they refused to admit the)' did anything wrong; "I
think the fine is incidental." Still as an adverse witness,
Dalton testified that he had "stated to the union members
and to counsel that if they)' admitted that they were wrong
. . and promise they [would] never do it again it would be
enough for me and I believe it would be enough for the
Executive Board." Later. on direct examination by local
counsel, Dalton testified that he would put them to work if
they agreed not to bump. The local's brief in connection
with the Misko-Craig matter states, "As they have refused
to pay the fines, the union has likewise refused to refer
these individuals to positions as they became available, as
they are not members in good standing."
When asked what he thought of union members who
bump nonunion members. Nederlander testified:
. . . I don't allow it. I won't tolerate it. I don't allow it
and it . . . just does not happen in the International
Alliance of Stage Employees in any theatre in Amer-
ica. You don't bump.
I want to explain to you . . . why you can't
allow it, because a show is . . . like a machine, every
performance has to be the same. You develop a team.
You have rehearsals to develop a team, go through,
everybody learns their job. Just because you have a
non-union member, you cannot in the middle of an
engagement lay off the non-union member and bring
in a union member. It's probably the most unfair prac-
tice to an employer in the theatre, and is not tolerated
by either the employer or the union.
FISHER THEATRE
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nederlander testified that one incident of attempted
bumping had occurred at his theatre with the stagehands,
that none had ever occurred with wardrobe people, and
that he "never" thought about bumping in terms of ward-
robe people. Nederlander further testified that he had nev-
er had any labor difficulties with the local prior to the
instant hearing: that his relationship with Dalton had been
"fine" in terms of referring competent employees including
Misko and Craig; and that the Fisher Theatre had no writ-
ten agreement with the local because they have a "good
relationship." He testified that the instant case has not af-
fected that relationship.
D. Analysis and Conclusions
I. As to Masinick
At all relevant times, the local's constitution and bylaws
have required the business agent to "always notify mem-
bers of any vacancies occurring [in the various theatres]
before allowing nonunion people to be hired." In early
1976, both Lloyd Dalton (the local's business agent at all
relevant times) and Sophie Warehall (the local's secretary-
treasurer at all relevant times) told nonmember Masinick
that she could not go to work so long as there were card
members not working.
As previously found, Masinick asked Dalton for work
on the March 1977 "Ice Capades" show at the Olympia
and the September 1977 "Hello, Dolly" show at the Fisher,
and Dalton said he would get back to her. Also, Dalton
impliedly told her that he would call her for work on the
August 1977 Ford show at the Ford Auditorium. Dalton
testified that in selecting employees for referral, he tried to
equalize their earnings for the particular calendar year.
However, Dalton did not refer nonmember Masinick to
any of the foregoing jobs. Rather, he referred to each of
these jobs members, or officers' relatives, with higher 1977
earnings than Masinick's. The local has tendered no expla-
nation for Dalton's action in referring these members and
their kin, rather than Masinick, to these jobs. I conclude
that Masinick was not referred to these jobs because, al-
though her 1977 earnings record entitled her to such refer-
rals, Dalton preferred other employees owing to their
union membership status or their kinship to union officers.
I further find that if Dalton had used 1977 earnings as the
basis for referral, Masinick would have been referred to the
Ford show even if she had worked on the "Ice Capades"
show, and to the "Hello, Dolly" show even if she had
worked on both the Ford and "Ice Capades" shows. More
specifically, because member Lucia Timlin had the highest
previous 1977 earnings of the employees actually referred
to the "Ice Capades" show, Timlin is the employee who
would have been denied referral if Masinick had been re-
ferred. Further, even if Masinick rather than Timlin had
worked on the "Ice Capades" show, as of the date of the
Ford show Timlin's previous 1977 earnings would have
been higher than the earnings of any of the other employ-
ees who worked on the Ford show, as well as higher than
Masinick's; and, accordingly, Masinick instead of Timlin
would also have been referred to the Ford show. Finally,
even if Masinick had been referred to both the "Ice Ca-
pades" and Ford shows, as of the "Hello, Dolly" job her
previous 1977 earnings would have been lower than those
of member Jeakle, who worked on the "Hello, Dolly" job.
However, I do not find that the local was motivated by
Masinick's nonmembership or nonkinship with members
in failing to refer her to the Buick, Pennsylvania Ballet, or
"Faust" jobs, or in connection with the Eliot Feld Ballet
job. None of the members or members' relatives referred to
these jobs had higher earnings for the year than Masinick
did.42
As previously found, Respondent Fisher is engaged in
commerce within the meaning of the Act, and its opera-
tions meet the Board's jurisdictional standards. The record
shows that the Ford show was a commercial, or industrial,
show which, throughout August 1977, ran at the Ford Au-
ditorium, in the Detroit metropolitan area, with 13 ward-
robe employees. 43 I have taken judicial notice of a Board
decision finding that the Ford Motor Company's principal
office and place of business are in the Detroit metropolitan
area. On the basis of Moody's "Industrial Manual," 1977,
p. 649, of which I take judicial notice, I find that the Ford
Motor Company's 1976 sales exceeded $28 milllion. From
the name and commercial, or industrial, nature of the
show, the fact that only a very large enterprise could afford
or would regard it as worthwhile to finance such a long-
running and elaborate production not intended for the
general public,44 the large size of the Ford Motor Com-
pany's operations, the name and geographical location of
the Ford Auditorium, and the geographical location of the
Ford Motor Company's principal office and place of busi-
ness, I infer that the Ford Auditorium is operated, and the
Ford show was put on, by the Ford Motor Company. I
have taken judicial notice of the Board decision which es-
tablishes that the Ford Motor Company is engaged in com-
merce within the meaning of the Act and meets the Board's
jurisdictional standards. Accordingly, I find that the local's
failure to refer Masinick to the "Hello, Dolly" show at the
Fisher and to the Ford show violated Section 8(b)(2) and
(I)(A) of the Act.
However, I do not find that the local violated the Act by
failing to refer Masinick to the "Ice Capades" show at the
Olympia Stadium. There is no evidence that the Olympia
Stadium is itself engaged in commerce within the meaning
of the Act or meets the Board's jurisdictional standards, or
that it is part of a multiemployer unit which includes em-
ployers who are so engaged. South Florida Taxi Association,
et al., 182 NLRB 1049 (1970); Council of Bagel and Bialy
Bakeries, 175 NLRB 902 (1969); Marty Levitt, 171 NLRB
739 (1968); J. S. R. Incorporated d/h/a Mission Hotel, 170
NLRB 611 (1968).
42 The complaint does not allege that she was unlawfully denied referral
for reasons unrelated to her lack of union membership or of kinship to
members.
41 The wardrobe personnel who worked on that show were paid between
$954 (;Giddings) and $3.652 I Darlene Dalton). The record otherwise fails to
show the size of the wardrobe staff at any particular time, or the number of
performances.
4 Wardrobe personnel alone were paid almost $30,000 for that show.
FISHER THEATRE 691
2. As to Misko and Craig
a. Whether the Local's refusal to refer them was unlawful
The initial question presented as to Misko and Craig is
the reason why Local Business Agent Dalton failed and
refused to refer them to work. Counsel for the local
averred, in his opening statement:
The fine is not as important as an acknowledgement
that what they did was wrong. Yes, the fine is the
reason they were not referred, but really we would
even be willing to waive the fine. The fine is not the
essential crux of the problem . . . the essential prob-
lem is that they feel that what they did was right and
they won't acknowledge that what they' did was wrong
and illegal.
Further, Dalton testified that on an undisclosed date be-
tween October 20, 1977, and the hearing on April 18, 1978,
the fine had become "incidental" to the local, and that
after arriving at this conclusion, the local had failed to
refer them because they refused to admit that they did any-
thing wrong.
However, I conclude that the sole reason for the local's
failure and refusal to refer them was their nonpayment of
the fine. Thus, the July 27, 1977, letters from the local ad-
vised Misko and Craig that they were "no longer entitled to
be called for work under our jurisdiction until such time as
[their] fine and other financial obligations to this Local are
paid," without referring to any failure by them to admit
wrongdoing. Dalton admitted that as of October 20, 1977,
the date of his prehearing affidavit, these employees would
have had to pay their fines to be considered for employ-
ment. Further, the local's posthearing brief as to Misko
and Craig asserts at page 3, "As they have refused to pay
the fines, the [Local] has likewise refused to refer these
individuals to positions as they become available, as theN
are not members in good standing," without attributing to
the local any additional motive of any failure by Misko and
Craig to admit wrongdoing. Moreover, so far as the record
shows, the local has never unequivocally advised Misko
and Craig that they would be referred without paying their
fines if they admitted wrongdoing and promised not to re-
peat the offense. Rather, Dalton merely testified to telling
them, "I believe it would be enough for the Executive
Board." In any event, assuming that the local could lawful-
ly refuse to refer them for failure to make such an admis-
sion and promise (but see cases cited infra, fn. 45) but not
for nonpayment of the fine, the local's conduct was
nonetheless unlawful, since it was admittedly motivated, at
least in part, by nonpayment of the fine. Construction, Pro-
duction & Maintenance Laborers' Union Local No. 383, affi-
hated with Laborers' International Union of North America,
AFL-CIO (William Pulice Concrete Construction). 236
NLRB 125 (1978); Local Union No. 38, United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada (D. 1.
Chadbourne, Inc.), 159 NLRB 370, 376 (1966), enfd. 388
F.2d 679 (9th Cir. 1968).
The local's answer concedes that it operates an exclusive
job referral system or practice with Fisher, Music Hall.
Olympia, Michigan Opera Theater, and various other em-
ployers engaged in the production and presentation of the-
atrical and entertainment shows, whereby wardrobe per-
sonnel seeking employment with such employers must
secure clearance and referral from the local as a condition
of obtaining such employment. As the local does not ap-
pear to dispute, a union which is party' to such a practice
violates Section 8(b)( I )(A) and (2). at least ord;narily, by
refusing to refer employees for nonpayment of a union-
imposed fine. See, e.g., International Longshoremens and
Warehousemen 's Union. ocal 13 (Pacific Maritime Associa-
tion), 228 NLRB 1383 (1977): Brewery Drivers. Chauffeurs
& Helpers Local Union No. 133, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (St. Louis Stag Sales, Inc.), 190 NLRB
766 (1971): International Association of Bridge, Structural
and Ornamental Ironworkers, Local 600 (Bai City Erection
Company, Inc.). 134 NLRB 301 (1961): Pen and Pencil
Work ers Union, Local 19593. AFL (Parker Pen Company).
91 NLRB 883 (1950): ('ity Window Cleaning Company. 114
NLRB 906. 920 (1955).
As is indicated by the absence of any finding in these
cases as to the reason for the fine, a refusal to refer for
nonpayment of a fine is unlawful. at least ordinarily, re-
gardless of why' the fine was imposed. However, the local
contends that the reasons for the fines imposed on Misko
and Craig constitute a legal defense to its refusal to refer
them for nonpayment. I assume, without deciding. that in
unusual circumstances the reasons for a fine may consti-
tute either a defense to a refusal to refer for nonpayment or
a basis for dismissing. for equitable reasons, a complaint
based on such refusal. Cf. N.L.R.B. v. Kingston Cake Com-
pany, Inc., 206 F.2d 604 (3d Cir. 1953). However. I do not
think that such unusual circumstances are presented here.
Initially, the local contends that its refusal to refer Misko
and Craig is justified by the class of cases holding that a
union may prevent an employee from being hired, or cause
his discharge, where "the union action was necessary to the
effective performance of its function of representing its
constituency." International U.Lnion of Operating Engincers.
Local 18 (Ohio Contractors Association), 204 NLRB 681
(1973). 45 However, the Board has repeatedly held that a
4, Remanded 496 F.2d 13)O8 6th (lir. 19741. Decision on remand. 2211
NI.RB 147 (1975). enforcemenl denied 1555 F.2d 552 (6th ('lr. 1977) Ac-
cord: I 'nle'd Broherhd of PaInterrs. I)clorator & Paperhaneri .4; ,,lri'l .
Il,.a L ,ton .,. 4' ( 4nnerian ( ,ornt n. Incl. 226 NL.RB 299(1976) (keep-
ing Incumbent on job. prexenting crcumsention of hiring hal): Inrtrnation
ar Brolherho od Electrical 4 ork er. Iotn al 592 ( nited ngneer, S ( on
wrriion ( , . 223 NLRB 899 ( 1976) (maintaining standards of emplosee
proficlenc: .Macrquete (enlcnt .tlanullturling (Conpan. 213 NL.R 182
(1974) (elminating "two obhers" during job shortage): tl/l. rJghtr ' ,oal
Lnion i /12. nited Brotherhd / (aIrpenier.r and Joineri ioAt4neroa (Planet
( orporatoon), 144 NI.RB 798 (1963) (enforcing contractual requirement of
subsistence alloance). (Cf. the following cases disallowing such a defense
Inrfternainal 1l.nghore,nenn .4 so'ltlOn, .,xal .'¥,. 1r5,I .41Mlnchester Iertni
nal (r-wratto(n). 196 NLRB I 18h ( 19721. enfd. 489 F.2d 635 (Sth ( lr. 1974)
Ipreference to United States ctizens and to noncitizens with fmlhes li lng
In nied States) Pacdi( tartime.' A sclatiion 209 N LRB 5 1 1974) (pref-
erence to men o er women). Inlt'rnlitlnal .sit(ociatlon t Br(die .r tirllIr
and Ornamental Iro-n orkears. L oa[ o 43 (1 The A.4 isoc/ted (,neral < n -
trators 4l ( iahirna. oInct, 228 NRB 1420 . 1437 40 19771: .ai[ I ,on
,~ '.25 , the ( nited .4.sar t(ion o Jrneinmen nd 4Apreniel ! Ihe
PutOI'hi (znd Ppetitng nduwrr Poer Reulmr ( t/(anl ). 225 Nl RB
( ontlinued
FISHER THEATRE
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union violated the Act by refusing or threatening to refuse
to refer an employee for nonpayment of a fine, without
addressing the question of whether the principles articulat-
ed in Ohio Contractors would have privileged the union to
cause the employee to lose employment because of the
conduct which led to the fine.
46 Cf. N.L.R.B. v. Sheet Metal
Workers International Association, Local No. 65 (A. Naba-
kowski Co.), 359 F.2d 46 (6th Cir. 1966); United Engineers,
supra, 223 NLRB 899.
This approach is not based upon a mere semantic quib-
ble. In the first place, because the local could not fine non-
members (who constitute a majority of those on the refer-
ral list), the impact of any local no-bumping policy
enforced by fines would likely differ between members and
nonmembers and, therefore, might itself be unlawful. Ra-
dio Officers' Union [A.H. Bull Steamship Co.] v. N.L.R.B.,
347 U.S. 17, 24-28, 39-42, 52 (1954). Furthermore, the
question which the internal disciplinary proceedings pre-
sented to the local membership was not whether Craig's
and Misko's conduct should cause them to be debarred
from referral until they paid their fines, but was whether
such conduct should cause them to be fined. The local
membership might perhaps have responded negatively to
the question of whether Dalton should be directed to deny
referral to a member who displaced a nonmember, and to a
job steward who acquiesced in such displacement, in the
face of uncontradicted evidence that they did not take such
action until after the stage manager had advised them (al-
though erroneously, according to Dalton) that Dalton him-
self had approved it. I note, moreover, that the local's by-
laws required Dalton to notify members of vacancies
before nonmembers were hired; and that both Dalton, who
brought the intraunion disciplinary charges against Craig
and Misko, and Sophie Warehall, a member of the execu-
tive board which made the initial decision in such discipli-
138 (1976)., enfd. 572 F.2d 1550 (5th (Cir. 1978). Laborers and Hod (arrier
Local No. 341 (Bannister-Jovce-Leonard). 223 NLRB 917 (1976)., enfd. 564
F.2d 834 (9th Cir. 1977).
46 See, e.g., Local U'nion No. 1()40. International Brotherhood of Teamsers
(American Dr. Pepper Bottling Conmpani), 174 NLRB 1153 (1969) (fine im-
posed on regular drivers for taking out loads without using helpers as re-
quired by bargaining agreement: cf. Planet Corp. supra. fn. 45, 144 NI.RB
798): Painters ocal Union No. 1627 (Johnson' Platering (Co.) 233 NLRB
820 (1977) (fine for. inter ala, spraying on a Saturday without a permit and
not wearing a proper uniform): Bricklavers, Masons & Plasterers' Interna-
tional Union of America. Local 1 (Wilmorie Construction Inc.J. 162 NLRB
668 (1967) (fine for hitting business agent): Local 43. International Printing
Pressmen and Assistants Union of North America (San Antonio Expres and
News). 202 NLRB 286 (1973) (fine for refusing to accept out-of-shop assign-
ments: cf. Marquette Cement, supra, fn. 45. 213 NLRB 182); Local No. 4.
United Slate. Tile and Compo.rition Roofers. Damp and Waterproof Workers
Assn. (Avon Sheet Metal Co.). 141 NLRB 384 (1962) (fine for accepting job
which should have gone to senior employee): cf. United Eengineers. supr.
fn. 45, 223 NLRB 899): The Great Atlantic and Pacific Tea Compan. 117
NLRB 1542, 1545-50 (1957) (fine for late repayment of loan from union's
credit union): Local 143 7. United Brotherhood of Carpenters (Associated Gen-
eral Contractors of California Inc.). 210 N.RB 359 (1974) (fine for misstat-
ing age and journeyman status on union application): International Long-
shoremens and Warehousemens Union Loal 17 (Rice Growers A.stn of
Calif.). 172 NLRB 2016 (1968)., enfd. 431 F.2d 872 (9th Cir. 1970) (fine for
suing union). Cf. Leece-Nesville (ompanv, 140 NLRB 56 (1962)., enfd. 330
F.2d 242 (6th Cir. 1964), cert. denied 379 U.S. 819; Local No. 171. Associa-
tion of Western Pulp and Paper Workers (Boise Cascade (orporation), 165
NLRB 971 (1967): Thermador Division of Norris Industries 190 NLRB 479
(1971)1 (alleged fines for failing to attend union meeting).
nary proceedings, had told nonmember Masinick in early
1976 that she could not work when card members were not
working. Indeed, after considering the transcript of the in-
traunion disciplinary proceedings and affirming the local's
action in fining Craig and Misko, the International told the
local not to cause them to be denied employment.
4 7 Fur-
thermore, there is some suggestion in recent case law that
the determination of whether union action "was necessary
to the performance of its function of representing its con-
stituency" under Ohio Contractors might involve the ap-
propriateness of the means as well as of the ends.' For ex-
ample, it is at least arguable that Misko's and Craig's
indefinite debarment from employment for taking action
expressly permitted by the Music Hall's general manager
and stage manager and in accordance with the latter's rep-
resentation that Local Business Agent Dalton's message
approving a bump is an arbitrary means of enforcing a
union policy against bumping. Weight to such a contention
might be lent by the seeming inconsistencies in the local's
no bumping policy. Thus, just 2 days before member Craig
bumped nonmember Timlin, member Misko bumped non-
member Deborah Lesch in accordance with Dalton's state-
ments to Misko before she went on the job. Furthermore,
after Craig had been fined for bumping Timlin off the
"Selma" show in August 1976, Dalton invited Craig to
bump Marjorie Irwin off the Marcel Marceau show in June
1977. Moreover, at Misko's November 1976 intraunion dis-
ciplinary hearing she stated without contradiction that
nothing had been done when an unidentified member of
her own family had been bumped.
4 9 Cf. Associated General
Contractors, supra, 228 NLRB at 1438-39; Powers Regula-
tor, supra, 225 NLRB at 142-144. It is true that Dalton
stated at the Misko disciplinary hearing that his arrange-
ments with Deborah Lesch flowed from the fact that she is
his daughter; and that local counsel stated at oral argu-
ment, although I see no supporting record evidence, that
47 Quite possibly, an employer might give different relative and absolute
weight than would a union to an employee's failure to pay a fine and to his
conduct which led to the fine. Accordingly, in the ordinary situation where
the employer makes a nonministerial decision about whether to hire or
retain an employee. his decision might be affected by which argument the
union used in requesting him to take such action. Because of the limited role
played by the employers who use the local's referral services, this consider-
ation has little practical force in the instant case. However, such a consider-
ation likely underlies the presumptive (if indeed not conclusive) preclusion
of union reliance on nonpayment of a fine, and I see no reason why the
local's rights in this respect are legally enlarged by its control over the hiring
process.
4H See International Brotherhood of Electrical Workers, Local 1547 (M & M
Electric ompani), 225 NLRB 331, 344 (1976). enfd. 96 LRRM 3413.83 LC
§ 10. 367 (D.C. C(ir 1977). cert. denied 98 S.Ct. 2846; International Molders'
and Allied Workers Union, Local No 125 (Blackhawk Tanning Co.), 178
NLRB 208 (1969) enfd. 442 F.2d 92 (7th Cir. 1971). For example, where an
employer has filled a vacancy by promoting the senior employee in the
department, the union's privilege to cause his displacement by the senior
employee in the plant would not self-evidently extend to causing the dis-
charge, rather than merely the demotion. of the displaced incumbent who in
good faith had accepted the promotion on the basis of departmental senior-
ity) But see Planet Corp.. supra, 144 NLRB at 802.
She also there stated that Dalton had permitted Local President Rogers
and someone else to bump someone named Helen (inferentially, member
Helen Page[) and someone else at the Metropolitan Opera. Dalton stated at
that hearing, "Those people were not bumped because there was a matter of
earnings and that is why they didn't work, because they had made more
money They were not bumped off the job." The record contains nothing
more regarding this Metropolitan Opera incident.
FISHER THEATRE 693
Marjorie Irwin did not want to work on the Marcel Mar-
ceau job. However, the local contends that a principal rea-
son for its policy regarding bumping is to protect the
theatre's interest in continuity of personnel on a show. Pre-
sumably this interest would likewise be undermined by
bumping with the consent or even at the request of the
displaced wardrobe personnel.
The local thus administered its no bumping policy for
the specific purpose of benefiting the incumbent employee.
with the theatre's interest secondary at best. Moreover, the
thrust of Nederlander's objections to bumping was direct-
ed at stagehands rather than at wardrobe personnel: and
the stage manager and general manager at the Music Hall,
although they disliked using replacements for wardrobe
personnel initially hired, acceded to Dalton's approval of
Craig's bumping Timlin. Further, when the Michigan Op-
era Theater allegedly concluded that Misko's and Craig's
"Selma" conduct rendered them unsatisfactory workers, it
merely requested Dalton not to refer them to it again and.
far from evincing any desire to obtain wardrobe personnel
from a source other than Dalton, said it looked forward to
"good working relations" with the local. Furthermore, al-
though Dalton testified that all the Detroit theatre owners
probably learned about the Misko-Craig incident and the
local "won't be operating there anymore" if bumping be-
came a problem, and further testified that Misko had con-
sistently maintained having done nothing wrong during
this incident, Dalton went on to testify that he urged her to
pay the fine so that she could work. Thus, the record fails
to show that the theatres' distaste for bumping is so strong
that the local must impose indeterminate exclusions from
the referral list on bumping members in order to induce the
theatres to use the local's referral service. Accordingly, I
reject the local's apparent contention that maintenance of
such a policy is essential to the viability of the local's refer-
ral service, is therefore essential to perpetuate the local's
existence, and must therefore be regarded as the local's
reason for not referring Misko and Craig even though the
local's reason was in fact their nonpayment of a fine.5 0
Finally, the local contends that Misko's and Craig's con-
duct implicated it in the unfair labor practice charge filed
by Timlin, and that the local's refusal to refer them until
they paid their fines was proper because it contributes to
preventing similar unfair labor practices in the future. On
the particular facts of this case, I am unpersuaded. The
undisputed evidence shows that Misko and Craig acted
only after being told by the stage manager that Dalton had
told her to "go along with" Timlin's displacement by Craig.
There is no evidence that Dalton, who was hard for Misko
to reach by telephone that evening because he was work-
5 The local relies on, inter alia. N . R v Internarorna/ I'nion o Operat-
ing Engineers, Local 18 (Ohio Contractors Association). 555 F.2d 552 (6th IOr
1977) (denying seniority to employee for efforts to sabotage a union elec-
tion): and Philadelphia Typographical Union No. 2 (Triangle Phublicatons.
Inc.), 189 NLRB 829 (1971) (denying seniority to emploee for emhezzling
S35,000 from union). In both cases, the union based its action on the em-
ployee conduct specified in the parenthetical material. I need not and do
not determine whether the results would have been the same if the unions
action had been based on nonpayment of a fine for such conduct, or wheth-
er an affirmative answer would call for dismissal of the instant complaint as
to Craig and Misko Cf. Rice Growers Association of Callfornia, upra. 172
NLRB 2016.
ing, tried to avoid any misunderstanding by asking to
speak to Misko or Craig directly. Furthermore, the fine
alone caused Craig's June 1977 refusal to bump another
worker even though Dalton was still referring her and he
specifically urged her to accept the job, there is no evidence
of any bumping by Craig or Misko after the "Selma" job,
and neither of them told Dalton that they would bump
again. Also, although Craig believed her ability to get the
"Selma" job was improved by her membership and
Timlin's nonmembership, and Misko may well have sus-
pected that Craig so believed, the main basis for Craig's
claim and the only one she mentioned to Misko) was the
fact that Timlin had just come off a long job. Assuming
that Misko knew Craig had not been referred to the "Sel-
ma" job because Dalton had not been able to reach her
before the job began. the weight of this reason was seem-
ingly diminished by Dalton's eventual referral of Misko
even though he had been unable to reach her either. Fur-
ther, the local's refusal to refer Misko and Craig would
likely have little if any value in forestalling future incidents
of discrimination in favor of members and against non-
members. The undisputed evidence shows that since at
least 1958 the local's printed bylaws have required such
discrimination in filling vacancies, and that as of the April
1978 hearing the local's business agent was still Lloyd Dal-
ton and its secretary-treasurer was still Sophie Warehall,
both of whom in 1976 told nonmember Masinick that she
could not go to work while members were unemployed.
Moreover, I have found that on various dates between
March and September 1977, many months after Misko and
Craig were fined, Business Agent Dalton withheld referrals
from nonmember Masinick because he was preferring
members and their kin, and that he told stage manager
Wright that member Craig was to displace nonmember
Timlin-the very message which caused Craig and Misko
to engage in the bumping activity on which Timlin's charge
was based. Finally, a finding that the local cannot lawfully
refuse to refer Craig and Misko for nonpayment of the fine
does not preclude the local from seeking to compel pay-
ment of the fine by judicial proceedings or from expelling
them for nonpayment. I note, moreover, that by merely
failing to name Misko as steward on any' future jobs, the
local can effectively prevent her from repeating the offense
for which she was fined.51
b My analysts in this paragraph disregards any possible difference be-
tween my findings as to the bumping episode and what the local's executive
ciuncil and membership may have believed on the basis of the disciplinary
proceedings In the first place. I regard Business Agent Dalton's knowledge
of what really happened as attributable to the local even though such
knowledge may have been withheld from the executive council and the
membership. (:onputer Sciences (orporatrion. Tchnicolossr Graphics Serices,
Inc and DI)at-Prxocessing .4lsswtiaies. d h a (omntprer Sciences-Technicolor
4 5ssciates., 236 N LRB 266 (sec. II.D.2) (1978): JacA on Sportsear Corpora-
rion. 211 NLRB 891. 902 (1974). Furthermore. as is suggested bh Interna-
tional Representative Robinson's analysis of the transcript L.srpra. sec.11.
(.5i. it is difficult If not impossible to determine what the executive board
and the membership thought had really happened. I note that although
Misko was charged with, inter alia, breach of a requirement that she report
rule infractions to the local business agent. and although at her disclplinary
hearing she stated without contradiction (Indeed, with corroboration from
[)alton as to the first telephone call) about her telephone calls to him just
before and just after the Timlin incident, the local found her "guilty as
charged." In ans event. to the extent the local relihes on protection of Board
('ontinued
FISHER THEATRE
-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons, I conclude that the local vio-
lated Section 8(b)(2) and (I)(A) of the Act by failing and
refusing, on and after July 27, 1977, to refer Misko and
Craig for employment because they had not paid the fines
which the local had imposed on them.
b. Whether the Local unlawfulv caused the Fisher Theatre
unlawful/v to discharge Misko and Craig
Several weeks after being advised by the local that Mis-
ko and Craig would not be referred for employment until
they paid their fines, they approached Fisher General
Manager Nederlander, said that they were having prob-
lems with the local, that it was denying them work, and
that they would like to work on the forthcoming "Hello,
Dolly" show. While knowingly in their presence, Nederlan-
der telephoned Dalton's home and left the message that
Nederlander had hired Misko and Craig for the "Hello,
Dolly" show. After receiving this message, Dalton told
Nederlander that his action in connection with Misko and
Craig "did notgo along, that we normally supplied the people,
that Craig [Nederlander] did not hire them." Nederlander
said that his hiring them was against Fisher's and the local's
general practices, but that Misko and Craig had claimed
that Dalton was against them and would not put them to
work. Dalton then told Nederlander that they had refused
to pay a fine, and related why they had been fined. Neder-
lander told Dalton to tell them to pay the fine and then
they could go to work. Thereafter, Nederlander told Craig,
"I can't hire you . . . because the IA has charges against
you. Why don't you pay your fine?" Then, Craig tele-
phoned Misko that Nederlander had said he could no lon-
ger put them to work.52 Later, Local President Rogers told
Misko that Nederlander had decided not to let Misko and
Craig work because they had a charge against them from
the local, the International knew it, and Dalton had
showed Nederlander a letter from International President
Diehl saying "sock it to them broads." (While not proba-
tive as to the actions or motives of Nederlander or the
International, Rogers' statement shows what the local be-
lieved such actions and motives to be.)
On the basis of this evidence, I conclude that the local
asked Nederlander not to employ Misko or Craig, that the
local was motivated by their failure to pay the fines which
the local had assessed against them, and (for the reasons
summarized supra, sec. l,C,2a) that this was an unlawful
motivation. I further find that Nederlander hired Misko
and Craig, and that he discharged them because the local
asked him to do so and with knowledge that the local was
actuated by the unlawful reason of their refusal to pay the
fines. Because Nederlander stated in terms that he would
put them to work if they paid their fines, his action in
discharging them constituted an unfair labor practice by
Respondent Fisher even assuming that he could lawfully
have discharged them because of their role in the Timlin
processes I regard as the critical issue what really happened and not what
the executive board and the membership believed had happened. (f.
N. L. R. B. v. Burnup and Srln. Inc.. 379 U.S. 21 1964): V L. R.B v. Indusirial
Union of Maurine & Shiphuilding Workers of( America lHolder. 391 U.S. 418
(1968): (alrev v. Wesiinghouse Eleciri (orp.. 375 U.S. 261. 272 (1964).
2 Nederlander testified. in effect, that when he telephoned ( raig his in-
tentions with respect to the emploinent of both women :serc the same.
incident. N. L.R. B. v. Challenge-Cook Brothers of Ohio, Inc.,
374 F.2d 147, 152 (6th Cir. 1967); Wonder State Manufac-
turing Company v. N.L.R.B., 331 F.2d 737, 738 (6th Cir.
1964); Signal Delivery Service, Inc., 226 NLRB 843, 846
(1976).
Respondent Fisher contends that it never hired Misko
and Craig. Fisher relies largely on Nederlander's testimony
that the Fisher Theatre always had the local take care of
hiring wardrobe personnel, that all American theatres
which play touring shows have the appropriate local take
care of hiring wardrobe personnel, that during his 30 years
as a theatre manager he had never hired or terminated
wardrobe personnel, that the number of wardrobe person-
nel to be hired for a particular touring show is agreed upon
by the producer and the International before the show be-
gins its tour, that the International advises the local how
many people are needed and when, that Nederlander has
no idea how many wardrobe people are required for any
show, and that he never knows which individuals will work
on a show as wardrobe personnel. However, when the local
selects the particular wardrobe personnel for the show,
Fisher permits them to perform wardrobe duties and they
are paid therefor by Fisher, not by the local. I conclude
that Fisher Theatre does in fact hire the wardrobe person-
nel working at the theatre, although ordinarily the hiring is
a purely ministerial act and, perhaps, the oral agreement
between Fisher and the local deprives Fisher of the right
(as distinguished from the power) to hire personnel not
selected and referred by the local. Fisher does not appear
seriously to dispute that any hiring power it may have can
be exercised by Nederlander, who is the theatre's general
manager and whose duties include booking shows, setting
performance schedules, and setting ticket sales schedules.
Accordingly, I conclude that Fisher did in fact hire Craig
and Misko when they personally requested Nederlander
for work on the "Hello, Dolly" show. In connection with
Nederlander's testimony that he does not know how many
wardrobe personnel are needed for a particular show, I
note Masinick's testimony that she had read in the newspa-
per that "Hello, Dolly" was coming to town with a large
cast and that she had inferred it would probably need a
number of dressers. I conclude that as the general manager
of the theatre where the show was to play, Nederlander
already knew at least this much. Moreover, Craig and Mis-
ko credibly testified that Nederlander told Thomas Dalton
that the show would need more than the two wardrobe
women whom Nederlander had just hired.
c. Whether the International is answerable for the Local's
unlawful action with respect to Misko and Craig
On June 20, 1977, the International affirmed the local's
action in fining Craig and Misko. About July 26, 1977,
when Dalton asked International President Diehl "what we
were going to do because [Misko and Craig] still claimed
they didn't do anything wrong," Diehl told him to collect
the fine. When Dalton said that they did not want to pay it,
that they still claimed they had not done anything wrong,
Diehl said not to refer them out until they admitted they
had done something wrong in bumping. Thereafter, at least
partly because of this conversation, the local advised Craig
FISHER THEATRE 695
and Misko, by separate letters dated July 27, 1977, that
they were "no longer entitled to be called for work under
our jurisdiction until such time as your fine and all other
financial obligations to this Local are paid." These letters
to Craig and Misko show on their face that International
President Diehl received courtesy copies, but the Interna-
tional took no action until the local's September 15 letter
advised the International that Craig and Misko were
threatening legal action against the International as well as
the local. The International then advised the local by certi-
fied letter dated September 29, 1977, not to interfere with
Misko's and Craig's employment opportunities.
I agree with the General Counsel that the local's failure
to refer Misko and Craig was due at least partly to Diehl's
statements to the local about July 26, 1977, not to refer
them until they admitted having done something wrong.
Further, the context of the conversation in itself calls for
the inference that Diehl knew their belief they had done
nothing wrong during the "Selma" incident was the reason
for their refusal to pay the fine for their part in that inci-
dent and, therefore, that Diehl's statements to Dalton
amounted to instructions not to refer them until they paid
their fine. This inference is confirmed by the
International's silence (until learning that Craig and Misko
were threatening legal action) after Diehl received the local
letter which was caused by his remarks, and in which the
local told them in terms that they would not be referred
until they paid their fine. Diehl testified that the various
locals call him on contract interpretation, grievance, and
any other problems, that he gives them his "best advice,"
and that he gave Dalton advice regarding the Misko-Craig
fine situation. Particularly in view of his testimony in this
respect, I regard the International as answerable for
Diehl's conduct in connection with enforcing the fines
which the International had the power to and did affirm,
notwithstanding his testimony that the local unions are re-
sponsible for administering their own contracts and han-
dling grievances thereunder and for administering any re-
ferral system or hiring hall, and that in his opinion he had
no power to order a local union not to refer somebody. See
International Association of Heat and Frost Insulators and
Asbestos Workers (Insul-Coustic Corporation), 139 NLRB
659, 661 (1962).
The question remains of whether the International's lia-
bility to Misko and Craig is affected by its September 29,
1977, letter to the local stating that it had no right to pre-
vent them from working. I conclude that this letter termi-
nated the International's liability as of April 18, 1978, the
date on which this letter was received into evidence and the
first date on which, so far as the record shows, Misko and
Craig had any notice of its existence. The local's July 27,
1977, letters to Misko and Craig advised the International
that the local was refusing to refer the employees because
they had not paid their fines, and advised them that the
International knew what the local was doing and why. Par-
ticularly in view of the International's denial of their ap-
peal of the fines, the International's seeming pretrial si-
Accordingli I need nl and do not determine whether (rofg and Mis-
ko could lax fully have been detlled referral .olel for refusing to Idnil fault
in connection with he I inlhn Incident ('f upra. f. 45
lence (so far as Misko and Craig could tell) disabled them
from using the International's September 29, 1977, letter to
the local as a basis for urging the local to resume referring
them.
CONCI SIONS OF LAW
1. Nederlander Theatrical Corporation, db.i/a Fisher
Theatre, and Ford Motor Company are engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Olympia Stadium, A Division of Norris Grain Com-
pany, has not been shown to be engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The International and the local are labor organiza-
tions within the meaning of Section 2(5) of the Act.
4. The local has violated Section 8(b)(2) and (I)(A) of
the Act by failing to refer Barbara Masinick to the "Hello.
Dolly" show at the Fisher Theatre and to the Ford show.
5. The local and the International have violated Section
8(b)(2) and (I (A) in that the local, at the behest of the
International, has (1) refused to refer Mary E. Craig and
Angela Misko to employment because of their failure to
pas fines levied b the local, and (2) caused Fisher Theatre
to discharge Craig and Misko because of their failure to
pay the fines.
6. Fisher Theatre has violated Section 8(a)(3) and (I) by
discharging Craig and Misko, at the behest of the local,
and with knowledge that the local was actuated by their
nonpayment of the fines.
7. The unfair labor practices in paragraphs 4, 5. and 6
affect commerce within the meaning of the Act.
8. The local has not violated the Act in the remaining
respects alleged in the amended consolidated complaint.
Tiii- RtMAlIDY
Having found that Respondents have violated the Act in
certain respects, I shall recommend that they be required to
cease and desist from such conduct. The local and the In-
ternational will be required to cease and desist from like or
related conduct. As Respondent Fisher's unfair labor prac-
tices consist of the unlawful discharge of two employees,
Board precedent calls for a broad order with respect to
Fisher. Bronm Machine and Foundrv Co., 222 NLRB 74
(1976). In addition, Respondent Local 786 will be required
to refer employee Masinick to employment without regard
to her nonmembership and her nonkinship with members,
and refer employees Craig and Misko to employment with-
out regard to their failure to pay the fines levied against
them, to employers over whom the Board would assert ju-
risdiction.
Also, Respondent Local 786 will be required to make
employee Masinick whole for an) loss of pay she may have
suffered by reason of the local's failure to refer her to the
"Hello, Dolly" and Ford shows, or by reason of any failure
by the local after April 19, 1978, because she is not a mem-
ber or kin to a member, to refer her to employers over
whom the Board would assert jurisdiction. Further. Re-
spondents will be required jointly and severally to make
Craig and Misko whole for any loss of pay they may have
FISHER THEATRE
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered by reason of their unlawful discharge. Because
Fisher offered no resistance to the unlawful discharge re-
quest, its liability will be primary and not secondary. In
addition, the local and the International will be required
jointly and severally to make Craig and Misko whole for
any loss of pay they may have suffered by reason of the
local's failure to refer them, up to and including April 18.
1978, to employers over whom the Board would assert ju-
risdiction. The local alone will be required to make them
whole for losses suffered by reason of any such failure after
April 18, 1978. Backpay shall be calculated as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as called for in Florida Steel Corporation, 231 NLRB 651
(1977). 54 Because the run of the "Hello, Dolly" show has
terminated, and because wardrobe personnel are hired for
a particular show only, Fisher will not be required to offer
reinstatement to Misko and Craig. Also, Respondents will
be required to post and/or mail appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 55
A. The Respondent, Nederlander Theatrical Corpora-
tion, d/b/a Fisher Theatre, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Discharging employees, or otherwise discriminating
with respect to their employment, to encourage member-
ship in Theatrical Wardrobe Attendants Local 786, Inter-
national Alliance of Theatrical Stage Employees and Mov-
ing Picture Operators of the United States and Canada,
AFL-CIO-CLC, or any other labor organization, except to
the extent such action may be permitted by an agreement
requiring union membership as a condition of continued
employment as permitted by the proviso to Section 8(a)(3)
of the Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under the
Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Mary E. Craig and Angela Misko whole for
any loss of pay they may have suffered by reason of their
discharge in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary or useful in analyzing and computing the
54 See, generally. Isis Plumbing & tleating Co., 138 NLRB 716 (1962).
55 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 he
deemed waived for all purposes.
amount of backpay due to Barbara Masinick, Craig, and
Misko under the terms of this Order.
(c) Post at its Detroit, Michigan, theatre copies of the
attached notices marked "Appendix A," "Appendix B,"
and "Appendix C." 6' Copies of said notices, on forms pro-
vided by the Regional Director for Region 7, after being
signed as therein indicated, shall be posted by Fisher im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Fisher to
insure that the said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
Fisher has taken to comply herewith.
B. The Respondent, Theatrical Wardrobe Attendants
Local 786, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Operators of the United States
and Canada, AFL-CIO-CLC, its officers, agents, and rep-
resentatives, shall:
I. Cease and desist from:
(a) Causing or attempting to cause Nederlander Theatri-
cal Corporation, d/b/a Fisher Theatre; Ford Auditorium;
or any other employer over whom the Board would assert
jurisdiction, to discriminate against Barbara Masinick,
Mary E. Craig, Angela Misko, or any other employee, in
violation of Section 8(aX3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Refer Barbara Masinick to employment with em-
ployers over whom the Board would assert jurisdiction,
without regard to her nonmembership in the local and her
nonkinship with members.
(b) Refer Mary E. Craig and Angela Misko to employ-
ment with employers over whom the Board would assert
jurisdiction, without regard to any nonpayment of the fines
levied against them.
(c) Make Masinick, Craig, and Misko whole for any loss
of pay they may have suffered by reason of their failure to
be referred by the local, and Craig and Misko whole for
any loss of pay they may have suffered by reason of their
discharge by Fisher, in the manner set forth in the section
of this Decision entitled "The Remedy."
(d) Notify Fisher, in writing, that it has no objection to
the employment of Craig and Misko, and give them copies
of such notification.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all rec-
ords showing which employees were referred to which jobs,
when such employees worked, and how much they earned,
as well as all other records necessary or useful in analyzing
and computing the amount of backpay due to Masinick,
,6 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notices 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."
FISHER THEATRE 697
Craig, and Misko under the terms of this recommended
Order.
(f) Post at its offices and meeting halls copies of the
attached notices marked "Appendix A," "Appendix B,"
and "Appendix C." 57 Copies of said notices, on forms pro-
vided by the Regional Director for Region 7, after being
signed as therein indicated, shall be posted by the local
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the local to
insure that the said notices are not altered, defaced, or cov-
ered by any other material. If the local has no office or
meeting hall, it shall mail such notices to each member.
(g) Mail copies of the foregoing notices to all nonmem-
bers who have been referred to work by the local since July
27, 1977.
(h) Provide signed copies of "Appendix B" to the Re-
gional Director for posting at the Ford Auditorium, Ford
willing.
(i) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
local has taken to comply herewith.
C. The Respondent, International Alliance of Theatrical
Stage Employees and Moving Picture Operators of the
United States and Canada, AFL CIO-CLC, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Nederlander Theatri-
cal Corporation, d/b/a Fisher Theatre, or any other em-
ployer over whom the Board would assert jurisdiction, to
discriminate against Mary E. Craig, Angela Misko, or any,
other employee, in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Mary E. Craig and Angela Misko whole for
any loss of pay they may have suffered by reason of their
failure to be referred by the local and their discharge by
Fisher, in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Notify Fisher, in writing, that it has no objection to
the employment of Craig and Misko, and give them copies
of such notification.
(c) Post at its offices and meeting halls the attached no-
tices marked "Appendix A." "Appendix B," and "Appen-
dix C." 58 Copies of said notices, on forms provided by the
Regional Director for Region 7, after being signed as
therein indicated, shall be posted by the International im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Inter-
national to insure that the said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the International has taken to comply herewith.
IT IS FeRTHER RCOMMENDED that the complaint be hereby
dismissed to the extent it alleges violations not previously
found.
See fin qO, lpra
See fn. 56, upra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONA BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by discharging Mary E. Craig and Angela Misko.
We have been ordered to post this notice. We intend to
carry out the order of the Board and abide by the follow-
ing:
WE WILL. Nor discharge employees because a request
for their discharge has been made b Theatrical
Wardrobe Attendants Local 786, International Alliance
of Theatrical Stage Employees and Moving Picture Op-
erators of the United States and Canada, AFL CIO-
CLC, where we have reason to believe that the request
is based on such employees' nonpayment of fines to
Local 786.
WE WILl NOT otherwise discriminate with respect to
employment to encourage membership in Local 786,
or any other union, except to the extent that such ac-
tion may be permitted by an agreement requiring
union membership as a condition of continued em-
ployment as permitted by the proviso to Section
8(a)(3) of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under the Act.
WE WILL make Marv E. Craig and Angela Misko
whole, with interest, for any loss of pay they may have
suffered by reason of their unlawful discharge.
NEDERLANDER THEATRICAI CORPOR4IIoN d b/a
FISHER THEATRE
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF rHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by failing to refer Mary E. Craig and Angela Mis-
ko, by causing their discharge, and by, failing to refer Bar-
bara Masinick to certain jobs. We have been ordered to post
this notice. We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT deny employees. because they are not
members or kin to members or because they have not
paid fines levied by us, referrals to jobs with Neder-
FISHER THEATRE
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lander Theatrical Corporation, d/b/a Fisher Theatre,
Ford Auditorium, or any other employer over whom
the Board would assert jurisdiction.
WE WI.L NOT cause or attempt to cause Fisher The-
atre unlawfully to discharge employees.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights un-
der Section 7 of the Act.
WE WILL refer Barbara Masinick to employers over
whom the Board would assert jurisdiction, without re-
gard to her nonmembership in Local 786 and her non-
kinship to members.
WE WILn. refer Mary E. Craig and Angela Misko to
employers over whom the Board would assert jurisdic-
tion, without regard to these employees' nonpayment
of the fines which we levied against them.
WE WILL make Barbara Masinick, Mary E. Craig,
and Angela Misko whole, with interest, for any loss of
pay they may have suffered by reason of our unfair
labor practices against them.
THEATRICAL WARDROBE ATTENDANTS LOCAL
786, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES AND MOVING PICTURE OPERATORS OF THE
UNITED STATES AND CANADA. AFL CIO-CLC
APPENDIX C
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by causing Mary E. Craig and Angela Misko to
lose employment. We have been ordered to post this no-
tice. We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT cause employees to lose employment
with Nederlander Theatrical Corporation, d/b/a Fish-
er Theatre, or any other employer over whom the
Board would assert jurisdiction, because these em-
ployees have not paid fines levied by Theatrical Ward-
robe Attendants Local 786, International Alliance of
Theatrical Stage Employees and Moving Picture Op-
erators of the United States and Canada, AFL-CIO-
CLC, or any other of our locals.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights un-
der Section 7 of the Act.
WE WILL make Mary E. Craig and Angela Misko
whole, with interest, for any loss of pay they may have
suffered by reason of our unfair labor practices
against them.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES AND MOVING PICTURE OPERATORS OF THE
UNITED STATES AND CANADA. AFL-CIO-CLC