Licensed Ushers & Ticket Takers, Local 176

National Labor Relations Board - Board Decisions

Dec 24, 1974

215 N.L.R.B. 857 (N.L.R.B. 1974)

LICENSED USHERS & TICKET TAKERS , LOCAL 176
Licensed Ushers and Ticket Takers , Local 176, SEIU,
AFL-CIO' and Gotham Soccer Club , Inc. d/b/a
The New York Cosmos and Local 366, Utility Work-
ers of America, AFL-CIO.' Case 2-CD-469
December 24, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended , following
charges filed by Gotham Soccer Club , Inc. d/b/a the
New York Cosmos, hereinafter referred to as the Em-
ployer, alleging a violation of Section 8(b)(4)(i) and
(ii)(D) by Local 176. Pursuant to notice , a hearing was
held on May 23 and June 7, 1974 , in New York, New
York, before Hearing Officer Haywood E . Banks. The
Employer , Local 176, and Local 366 appeared at the
hearing and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to adduce
evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The rulings of the Hearing Officer made at the hear-
ing are free - from prejudicial error and are hereby af-
firmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, Gotham
Soccer Club, Inc. d/b/a the New York Cosmos, is
located at 101 Park Avenue, New York, New York,
and is a wholly owned subsidiary of Warner Communi-
cations, Inc., 75 Rockefeller Plaza, New York. During
the past year ending December 31,1973, Warner and its
Subsidiaries did a gross volume in excess of $500,000,
and it furnished goods and services to customers
outside the State of New York in excess of $50,000.
During the same period, goods and services were re-
ceived by Warner and its subsidiaries from suppliers
located outside of the State of New York valued in
excess of $50,000. We find accordingly that the Em-
ployer is engaged in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
Hereinafter referred to as Local 176
2 Hereinafter referred to as Local 366
III THE LABOR ORGANIZATIONS INVOLVED
857
The parties stipulated, and we find, that Licensed
Ushers and Ticket Takers, Local 176, SEIU,
AFL-CIO, and Local 366, Utility Workers of
America, AFL-CIO, are labor organizations within
the meaning of the Act.
III THE DISPUTE
A. Background and Facts of the Dispute
The Employer is currently located at Downing
Stadium on Randalls Island, New York. It is a profes-
sional soccer club, a member of the North American
Soccer League, and a member of an international soc-
cer group which is the governing body of all soccer in
the world. The Employer was formed in 1971 and it
played its first games in Yankee Stadium. In the years
1972 and 1973, it played its games at Hofstra Univer-
sity in Uniondale, Long Island. The Employer 's lease
with the city of New York for Downing Stadium re-
quires that the Employer be responsible for the hiring
of ticket takers, ushers,, and directors.'
In late March 1974, Bachman, the Employer's con-
sultant, called Local 176 and Local 366 concerning
hiring of help. On March 25, Bachman called Local
176 and asked to speak to Jim Brown concerning ush-
ers and ticket takers. The answering service indicated
that Brown was not in. Bachman gave his name, and
that of his Employer, and left a phone number for
Brown to call. Brown did not return that call. During
the period March 25 to April 5, Bachman made several
more attempts to reach Brown. Bachman testified that
Brown never returned the calls.
On March 26 or 27, Bachman called Local 366 and
left a message. The next day Local 366 President Ben-
nett called Bachman. Bachman indicated that the Em-
ployer would be needing ushers and ticket takers and
asked if Local 366 would furnish such people and at
what rate. A meeting was arranged between Bachman
and Bennett for April 3, at which time they further
discussed the rates. Bachman told Bennett he was try-
ing to contact Local 176. Bachman asked for, and re-
ceived, a letter from Bennett setting forth the proposed
wages. Bachman sent Bennett a letter on April 10,
indicating that Local 366 had been selected, and setting
forth the rates of pay for the coming soccer season.
Bennett signed the letter and returned it to Bachman.
On or about April 23, Brown called Bachman.
Brown stated that his Union had jurisdiction, that if the
Employer did not sign his men up to work the games
he would picket the stadium, and that the Employer
3 Ticket takers stand at turnstile or doorway taking and tearing tickets
presented by customers Directors have the responsibility of directing peo-
ple to the general area designated by the ticket Ushers lead people to proper
location and seat and clean seats
215 NLRB No. 136
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had to hire his members and get rid of the other union,
otherwise he would put a ring around the stadium.
Brown also stated that he would go to the other unions
and ask them to honor the picket line. Bachman re-
ceived a telephone call from Reynolds, the business
agent of Local 751, International Association of Ticket
Sellers Employees,a who stated that he had been con-
tacted by Brown who asked if Reynolds would cooper-
ate by not having his men cross the picket line. Rey-
nolds told Bachman that because of Reynolds' close
working relationship in other areas, other than Down-
ing Stadium, if there was a valid reason he would defi-
nitely have to honor the picket line.
Downing Stadium is operated by the acting director
of concessions in the concessions department of the city
of New York. Bachman had called the acting director
of concessions, Tierney, and asked if he was obligated
to hire any union personnel to run Downing Stadium,
and whether any union had any jurisdiction for any-
thing at Downing Stadium. Tierney said no. Tierney
was the individual with whom the Employer negotiated
a contract license for the use of Downing Stadium, and
he is the director of the department which directly
controls the concession of Downing Stadium.
Prior to the time that Bachman called either Local
366 or Local 176, Bachman had a conversation with
the Employer's ticket manager, Beatty, who had at-
tempted to get information concerning the hiring of a
work force for the soccer games in Downing Stadium.
Beatty told Bachman that he had talked to Brown of
Local 176, but that he had made no commitment as to
the supplying or furnishing of men for ticket taking to
Local 176. Bachman told Beatty that he would contact
Local 176 as well as Local 366. On April 10, 1974,
Bachman sent a letter to Local 366 after he had not
heard from Brown, informing Local 366 that it could
supply ushers and ticket takers to the Employer for the
soccer season.
B. The Work in Dispute
The disputed work involves the assignment of the
work of ticket taking, directing, and ushering at the
Employer's home soccer games played at Downing
Stadium located on Randalls Island in New York City.
Polo Grounds from the early 1960's until the Polo
Grounds closed; that for the past quarter century it has
supplied and represented the ticket takers, directors,
and ushers for virtually every sporting and theatrical
event held at Randalls Island; that, prior to the Em-
ployer's assignment to Local 366 of the work in dis-
pute, neither Local 366 nor its parent Utility Workers
has supplied or represented ticket takers, directors, or
ushers at any events on Randalls Island or anywhere
else; and that the various locals of its parent, Service
Employees International Union,' represent ticket .tak-
ers, directors, and ushers at various sporting arenas in
many major cities throughout the country.
Finally, Local 176 contends that Local 366 has never
been involved in ticket taking before and has been ex-
tremely limited in the area of ushers, and that it appears
that the assignment may have been made because of
some personal animus between Bachman and Brown
stemming from their bargaining encounters at Yankee
Stadium.
The Employer, although it has assigned the disputed
work to Local 366, takes no position as to which union
should have the work.
Local 366 contends that it is furnishing ticket takers,
directors, and ushers to the Employer pursuant to its
contract with the Employer; that an annulment of such
contract would violate the due-process clause of the
fifth amendment; that it has performed all of the work
in dispute at all times; that the Employer based its
choice of Local 366 upon economy and efficiency; that
skills are not an issue in this case; that Downing
Stadium is now being used by the Employer as a re-
placement for Yankee Stadium; that Local 366 has a
right to follow the jobs it lost when Yankee Stadium
closed; that all of the employees performing the work
seek to be represented by Local 366; and that the prede-
cessor of the Employer, the "New York- Generals,"
began playing in 1971 at Yankee Stadium and they
were ushered in the same manner as the other Yankee
Stadium events. Finally, Local 366 contends that, al-
though Local 176 has represented units at various loca-
tions, at a number of these locations Local 176 repre-
sented ticket takers only.
D. Applicability of the Statute
C. The Contentions of the Parties
Local 176 contends that for the past quarter century
it has represented and supplied ushers, directors, and
ticket takers at every regular sports event of any conse-
quence conducted in the various arenas and stadiums
in and about the New York metropolitan area, with few
exceptions; that it has represented the ushers at the
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act it
must be satisfied that there is reasonable cause to be-
lieve that Section 8 (b)(4)(D) has been violated.
The record shows that on April 23, 1974, Brown, the
business agent of Local 176, called Bachman and in-
dicated that his union had jurisdiction ; that if the Em-
ployer did not sign his men up to work the games he
Hereinafter referred to as Local 751 5 Herein referred to as SEW
LICENSED USHERS & TICKET TAKERS , LOCAL 176
would picket the stadium; that the Employer should
hire his men and get rid of the other union, otherwise
he would put a ring around the stadium; and that
Brown would go to the other unions and ask them to
honor his picket line.
Additionally, the record shows that Reynolds, the
business agent of Local 751, which represented the
ticket sellers, called Bachman and said that he had been
contacted by Brown and was told of the dispute with
the Employer. Brown had asked if Reynolds would
cooperate in not having his men cross the picket line.
Reynolds told Bachman he would have- to honor the
picket line.
We find that Local 176, through Brown, its business
manager, threatened to picket Downing Stadium with
an object of forcing or requiring the Employer to assign
the disputed work to members of Local 176 rather than
to members of Local 366. On the basis of the entire
record, we conclude that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred and that the dispute is properly before the Board
for determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving con-
sideration to various relevant factors. The Board has
held that its determination in a jurisdictional dispute is
an act of judgment based on commonsense and experi-
ence, reached by balancing those factors involved in a
particular case.'
1. Certification and collective-bargaining agreements
There is no evidence in the record that any of the
unions involved herein, nor any other labor organiza-
tion, has been certified to represent any of the Em-
ployer's employees.
Local 176 does not have, nor does it claim to have,
a contract with the Employer covering the disputed
work or any other work.
Local 366 contends that it is furnishing ticket takers,
directors, and ushers to the Employer pursuant to its
contract with the Employer. While said agreement,
which is in the form of a correspondence from the
Employer to Local 366, lacks the formality of a cus-
tomary contract between an employer and a union, and
it is not similar in form to the agreements negotiated by
Local 366 with other employers, we find, nevertheless,
that this agreement constitutes a valid contract be-
tween the parties. The record evidence indicates that
Bachman, for the Employer, and Bennett, for Local
6 International Association of Machinists. Lodge No 1743, AFL-CIO
(J A Jones Construction Company), 135 NLRB 1402 (1962)
859
366, met and discussed the possibility that Local 366
would furnish the ticket takers, directors, and ushers
that the Employer would need for its soccer game sea-
son at Downing Stadium. Bachman's April 10 letter
referred to Bennett's letter to Bachman on April 3, and
stated that Local 366 had been selected to supply ush-
ers, directors, and ticket takers for the 1974 home
games to be played by the Employer's soccer team at
Downing Stadium. The letter also contained a schedule
of dates for the soccer games, the number of ushers,
directors, and ticket takers required for each game, the
call time and gate opening time, the code of dress, rates
of pay, the work stations in dispersing the crowd, and
the estimated duration of the events. Also, the letter
indicated that, if the terms were approved by Local
366, Bachman requested a meeting in his office. The
letter closed by stating, "Please sign both copies and
return them to me for our signature. We will return a
signed copy to you."
Bennett signed the letter as president of Local 366 on
April 12, 1974. A vice president of the Employer signed
the letter on April 19, 1974.
We find that such letter constitutes a valid contrac-
tual agreement between the Employer and Local 366,
and that the Employer agreed therein to assign the
disputed work to members of Local 366. Thus, the
contract specifically covers the work in dispute.
2. Company and industry practices
The record shows that Local 176 has represented the
ticket takers and ushers at the Polo Grounds in New
York during the early sixties until the Polo Grounds
closed, and that Local 176 has represented and sup-
plied ushers, directors, and ticket takers for events at
Downing Stadium prior to the Employer's assignment
of the disputed work to Local 366. Members of both
Unions have, worked side by side at the Polo Grounds
and at Yankee Stadium. During such periods, Local
366 had contracts with individual employers or the
Stadium for furnishing ushers and directors, and Local
176 furnished ticket takers and directors. When the
Polo Grounds closed in the sixties, Local 366 ushers
followed the New York Football Giants when they
moved from the Polo Grounds to Yankee Stadium. In
1973, Yankee Stadium was closed for reconstruction.
Thereafter, Local 366 members who had lost their jobs
were referred as ushers and ticket takers from the bot-
tom of Local 176's seniority lists.
While Local 176 has represented the ticket takers
and ushers who have worked at Downing Stadium dur-
ing various events in the past up to, but not including,
the 1974 soccer season, the record also shows that dur-
ing this period members of Local 366 also worked as
ushers and ticket takers at Downing Stadium, albeit
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the consent of Local 176. The record also shows
that Downing Stadium is municipally owned and that
each promoter or event using the Stadium is responsi-
ble for hiring its own staff of ushers, directors, and
ticket takers and must strike its own bargain with the
unions for such services, unlike Yankee Stadium
which, at that time, was privately owned, and the
unions, including Local 366, negotiated and contracted
with the Stadium's owners concerning the services of
ushers and directors for the sports events.
Although the record does not indicate that Local 176
exclusively furnished ushers and ticket takers for the
various events and their sponsors at Downing Stadium
in the past, the record is clear in showing that Local 176
made individual arrangements with the sponsors of
each event, and not with the ownership of Downing
Stadium, and that some Local 366 members also
worked during these events. Additionally, the record
does show conclusively that only Local 366 members
have performed services for the Employer during its
soccer games for the 1974 season . Thus, while area
practices and industry practices may be varied and
mixed, it is clear that this Employer's practice at
Downing Stadium has been to assign the disputed work
to the employees represented by Local 366.
It thus appears that the factor of company practice
favors the assignment of the disputed work to the Em-
ployer's employees who are ticket takers, directors, and
ushers represented by Local 366. Accordingly, we find
that company practice favors the continued assignment
of the work to the Employer's employees represented
by Local 366.
3. Relative skills , economy, and efficiency of
operations
The record reveals that no special skills are necessary
for the performance of the work and that employees
represented by either labor organization are capable of
doing the work.
Nor does the record contain any evidence that it
would be economically advantageous or that it would
lead to greater efficiency in the Employer's operations
if the work were assigned to one Union in preference
over the other.
Thus, it appears that the factors of relative skills,
economy, and efficiency of operations do not favor
either Union.
Conclusion
Employer and Local 366, as well as the Employer's
practice, favor awarding the work to the employees of
the Employer who are presently performing the dis-
puted work, and we shall determine that they are enti-
tled to perform the work in dispute.
Accordingly, on the basis of the entire record, we
shall determine the existing jurisdictional controversy
by awarding to the employees represented by Local
366, rather than to the employees represented by Local
176, the work of ticket taking, directing, and ushering
at the Employer's 1974 home soccer games played at
Downing Stadium located on Randalls Island in New
York City. In making this determination , we are as-
signing the work to the employees who are represented
by Local 366, and not to that Union or its members.
Our present determination is limited to the particular
dispute which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of Gotham Soccer Club, Inc. d/b/a
The New York Cosmos, who are currently represented
by Local 366, Utility Workers of America,
AFL-CIO, are entitled to perform the work of ticket
taking, directing, and ushering at the Employer's home
soccer games played at Downing Stadium located at
Randalls Island in New York City.
2. Licensed Ushers and Ticket Takers, Local 176,
SEIU, AFL-CIO, is not entitled, by means proscribed
by Section 8(b)(4)(D) of the Act, to force or require
Gotham Soccer Club, Inc. d/b/a the New York Cos-
mos, to assign the disputed work to its members rather
than to employees represented by Local 366.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Licensed Ushers and Ticket
Takers, Local 176, SEIU, AFL-CIO, shall notify the
Regional Director for Region 2, in writing, whether or
not it will refrain from forcing or requiring Gotham
Soccer Club, Inc. d/b/a The New York Cosmos, by
means proscribed in Section 8(b)(4)(D), to assign the
disputed work to its members rather than to employees
who are presently working for the Employer, and who
are members of Local 366.
Having considered all pertinent factors, we conclude
that the factors, including the contract between the