Local 771, Int'l Alliance of Theatrical, Etc.

National Labor Relations Board - Board Decisions

Apr 5, 1961

131 N.L.R.B. 1 (N.L.R.B. 1961)

Local 771, International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of, the United States
and Canada and Alfred Kelly and Kenco Films, Inc. Case No.
2-CB-2985. April 5, 1961
DECISION AND ORDER
On January 9, 1961, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that the
.Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
,attached hereto. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter the
General Counsel filed exceptions to the Intermediate Report and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings,' conclusions, and recommendations of
.the Trial Examiner, with the following additions:
We find no merit in the General Counsel's exceptions to the Trial
Examiner's failure to find that the Respondent Union violated Sec-
tion 8(b) (2) and (1) (A) by allegedly causing the Company to dis-
charge employee Kelly.
The record shows that on or about September 2, 1960, the Com-
pany's president, Cofod, called the Respondent Union's office in
connection with the employment of Kelly. In the absence of the busi-
ness agent, he talked to the latter's secretary, Lois Hilton. Miss Hil-
ton told him that Kelly was not a member in good standing with the
Union and that "there may be problems having him reinstated if the
Company should employ him." Miss Hilton did not tell him not to
hire Kelly, or to discharge him, nor did she threaten a strike or any
i In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find-
ings that the Respondent violated Section 8 ( b) (2) and 8(b) (1) (A) of the Act by main-
taining a discriminatory provision in its contract with the Company respecting severance
pay or notice on the basis of union membership during the first 30 days of an employee's
employment.
131 NLRB No. 1. 1
599198-62-vol. 131-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other trouble or difficulties in connection with Kelly's employment.
Cofod, however, got "the impression that the name Kelly was a prob-
lem in the Local" and "the reaction from whatever she said that I
shouldn't hire him." Soon after this telephone conversation, Cofod
told Kelly that he couldn't hire him for the job of assistant editor,
and instead offered him a supervisory job in another department, out-
side of the Respondent's jurisdiction.
On these facts, we agree with the Trial Examiner that there is no
preponderance of evidence in the record for finding that the Respond-
ent caused the Company to discharge Kelly from the assistant editor
position. There was no threat, no compulsion, and no request for
Kelly's discharge. All that can be established is the expression of
misgivings on the part of a union employee as to the lack of good
standing and the possibility of reinstatement of Kelly in the Union,
and the resulting impression or reaction of the Company's president
that Kelly's employment was problematic. We agree with the court
that the "relationship of cause and effect, the essential feature of Sec-
tion 8(b) (2), can exist as well where an inducing communication is,
in terms, courteous or even precatory as where it is rude and demand-
ing."' Such communication, however, must ordinarily be a request
or demand for action by the Company, and not merely the expression
of misgivings on the part of the Union. Here, it is not shown that
the Company, because of past pressures or because of its exclusive
reliance on the Union's membership as its labor pool, was conditioned
to obey in its employment policies or actions any intimation on the
part of the Union.3 Cofod's "reaction" to Miss Hilton's remarks was
exaggerated; it'could not have been reasonably anticipated on the part
of the Respondent. To find "causation" within its legal meaning
under such circumstances would be an undue application of the goat
hoc, propter hoc approach. Accordingly, we shall dismiss the com-
plaint insofar as it alleges a violation in connection with Kelly's loss
of the assistant editor's job.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Local 771, International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada,
its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining so much of its contract with Kenco Films, Inc.,
as discriminates respecting severance pay or notice on the basis of
2 N.L R.B. v. Jarka Corporation of Philadelphia, 198 F. 2d 618 , 621 (C.A. 3), enfg.
In part 94 NLRB 320.
Cf. Bub Grade Engineering Company, 93 NLRB 406.
LOCAL 771, INT'L ALLIANCE OF THEATRICAL, ETC. 3
union membership -during the first 30 days of an employee's
employment.
(b) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as amended by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in its business office, copies of the notice attached hereto
marked "Appendix." 4 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by an official representative of Respondent, be posted by it
immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Deliver to said Regional Director signed copies of the afore-
said notice for posting, by Kenco Films, Inc., the Company willing,
where notices to its employees are customarily posted.
(c) Make whole Alfred F. Kelly for loss of severance pay in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(d) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply
herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated Section 8(b) (2)
and (1) (A) by causing employee Kelly's discharge.
A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 771, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OP-
ERATORS OF THE UNITED STATES AND CANADA AND TO ALL EMPLOYEES
OF KENCO FILMS, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our members and the employees of
Kenco Films, Inc., that:
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain so much of our contract with Kenco
Films, Inc., as discriminates respecting severance pay or notice
on the basis of union membership during the first 30 days of an
employee's employment.
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
by Section 8(a) (3) of the Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL make whole Alfred Kelly for loss of severance pay
suffered because of the discrimination caused against him.
LOCAL 771, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE MACHINE OPERATORS
OF THE UNITED STATES AND CANADA,
Labor Organization.
Dated---------------- B}'-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Alfred F. Kelly, an individual, the General Counsel of the
National Labor Relations Board issued a complaint dated October 18, 1960, against
Local 771, International Alliance of Theatrical State Employees and Moving Picture
Machine Operators of the United States and Canada , herein called Respondent
Union, alleging that Respondent has engaged in unfair labor practices affecting
commerce within Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the
National Labor Relations Acf,-as amended, 61 Stat. 136, 73 Stat. 519, herein called
the Act. Respondent filed an answer denying the unfair labor practices alleged.
Pursuant to notice , a hearing was held on November 21, 1960, in New York City,
before the duly designated Trial Examiner . The'General Counsel and Respondent
were represented by counsel and participated in the hearing. Respondent's mo-
tions to dismiss the complaint ai•e resolved in accordance with findings and conclu-
sions hereinafter set forth.
. Upon the entire record , and from my observation of the demeanor of all witnesses,
I make the following:
.. - FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE COMPANY
Kenco Films, Inc., herein called the Company or Kenco, is a New York corpora-
tion with its principal place of business in New York City; it supplies services to the
television film industry, including a print service and distribution and revision of
spot commercial services. Kenco, in 1959, performed. the described services at a
value exceeding $400,000, more than $50,000 of which was for out-of-State enter-
prises. I find that Kenco is engaged in commerce within Section 2(6) of the Act.
H. RESPONDENT LABOR ORGANIZATION
Respondent Union is a labor organization within Section 2(5) of the Act.
LOCAL 771, INT'L ALLIANCE OF THEATRICAL, ETC.
III. THE UNFAIR LABOR PRACTICES
5
The principal issues involved are (1) whether the Union caused Kenco to dis-
criminate against Alfred Kelly because of Kelly's nonmembership in the Union, and
(2) whether certain provisions in a labor relations contract between Kenco and the
Union unlawfully discriminate between union and nonunion employees. Kenco is
named in the complaint as party to the contract but not as a party Respondent.
Unless otherwise stated, all events recounted here occurred in 1960.
Kenco and the Union have had contract relations for about 11 years; the current
agreement contains, among other items, a 30-day union-shop provision and it also
requires Kenco to advise the Union of job vacancies and new hirings. The General
Counsel does not contend that the contract confers exclusive or preferential hiring
powers upon the Union; nor does he contend that such practice exists.
The office of Union Business Agent John Oxton administers the Union's contracts
with Kenco and other employers. Lois Hilton is Oxton's secretary, and she has been
similarly engaged by prior agents for 14 years. Oxton is out of the office much of
the time, and Kenco President Kenneth Cofod testified that he has frequently dealt
with Miss Hilton in "conducting the obligations of the contract, employment of
people."
Desiring to hire an assistant film editor in August, Cofod requested the Union to
send some applicants to be interviewed for that position. The individuals referred
by the Union did not satisfy Cofod; whereupon Cofod arranged an interview with
Alfred Kelly through other channels, Kelly being interested in such employment
at the time. Cofod told Kelly, during their meeting on or about August 26, that
Kelly had the necessary job qualifications and Cofod inquired concerning Kelly's
membership in the Union; Kelly had been suspended some time before and Kelly
replied that he was not a union member. Cofod told Kelly that he (Cofod) would
notify the Union that he was considering hiring Kelly
On September 1, Cofod notified Kelly to report for work the next day. Kelly
reported as instructed on September 2; he filled out employment papers and began
an orientation period Cofod's assistant meanwhile escorted Kelly throughout the
plant and introduced Kelly to the bookkeeper and other personnel as a newly hired
employee. Kelly, I find, was hired on September 2, and was to begin full-time
work on September 5. Kelly's employment was short-lived. For later, on September
2, Cofod told Kelly that the Union had notified Cofod that Cofod could not hire
Kelly because of Kelly's nonunion status. Cofod thereupon removed Kelly from
the editor job and he offered Kelly another position with Kenco, but which was out-
side the Union's jurisdiction.
Testifying on direct examination as a witness for the General Counsel, Cofod
stated that he called the union office and spoke to Miss Hilton concerning Kelly and
that Hilton told him in effect that Kelly was not in good union standing, that the
Union would not reinstate Kelly, and that the Union "may have some problems"
should Kenco employ Kelly; Cofod went on to testify that Hilton's further remarks
were to the effect that Cofod should not retain Kelly and Cofod thereupon testified
that Hilton's comments influenced his action as to Kelly The thrust of Cofod's
direct testimony was substantially blunted when he testified on cross-examination
that he alone made the decision respecting Kelly and that Hilton did not tell him
not to hire Kelly or threaten a strike or any other trouble if he did so, and Cofod
further stated that Hilton did not otherwise cause Cofod either to discharge or to
refuse to hire Kelly. Hilton testified that she was without authority to tell Cofod
not to hire Kelly or to threaten him in such connection; she denied doing so and she
further testified that she assumed Kelly had continued in Kenco's employ
Further Findings Respecting Kelly's Case
Charges were filed only against the Union; hence, no issue is tendered concerning
Kenco's liability for Kelly's discharge. In order to sustain the complaint against
the Union, it must be established that Hilton was a union agent and that, as such
agent, Hilton caused the Company to discriminate against Kelly.
The causation issue turns almost entirely upon Cofod's testimony concerning his
conversations with Hilton It should be noted here, as the parties were advised at
the hearing, that Kelly's testimony was hearsay so far as those conversations are
concerned and that, while such testimony was adduced, it was not received for pur-
poses of proving the contents of Cofod-Hilton conversations Suspicion aside, the
record does not disclose why Cofod changed his testimony on cross-examination
The fact is that he did so Under all the circumstances. therefore, and assuming,
but without deciding, Hilton's status as a union agent, I am unable to find that the
record preponderantly establishes that the Union caused the Company to discharge
s DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelly from the editor position. I shall accordingly recommend dismissal of the
complaint in such regard.
The Contract Issue
Paragraph VIII of the present contract between Kenco and Respondent Union
provides in part that before being discharged for cause all union members "shall
receive two weeks' notice thereof or two weeks' pay in lieu thereof. Mindful that all
employees can be lawfully discharged under the union-shop contract clause unless
they join the Union within 30 days, the General Counsel alleges that paragraph
VIII is unlawful in failing to grant nonunion employees the severance benefits
granted union members during the 30-day free period. Respondent claims in de-
fense, that the contract provides a probationary status for the first 30 days of
employment and that Kenco is entitled to discharge without recourse during such
30-day period. However, the contract does not so provide, and there is no evidence
that the parties established such practice in administering the contract. The con-
tract accordingly discriminates on the basis of union membership during the men-
tioned 30-day period, and I conclude that the Union has thereby violated Section
8(b) (1) (A) and (2) of the Act by being party to and maintaining such contract. See
Carty Heating Corporation and Mechanical Contractors Association of New York,
Inc., 117 NLRB 1417, 1418; K.M. & M. Construction Co., 120 NLRB 1062, 1063,
1076-1077, and cases cited therein; American Advertising Distributors, 129 NLRB
640.
Kelly's discharge illustrates the unlawful aspect of paragraph VIII. The Act
guarantees his right to abstain from union membership as a condition of employ-
ment until the 30th day of his employment, and he accordingly had a right to be
free from discrimination on the basis of union membership during such statutory
grace period. Had Kelly been a union member, he would have been entitled to
the mentioned notice or severance pay upon removal from the editor job on Septem-
ber 2; his nonmembership was the only reason for depriving him of such benefit.
Even though I have not found the Union to have caused Kenco to discharge Kelly,
I do find that by being party to and maintaining paragraph VIII of the contract, the
Union has caused Kenco to discriminate against Kelly respecting severance pay or
notice, thereby violating Section 8(b) (2) and (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union set forth in section III, above, occurring in
connection with the operations of Kenco set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and, such of them as have been found to be unfair labor practices, tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent Union has engaged in unfair labor practices, I
shall recommend that it cease and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
I shall recommend that the Union cease maintaining its contract with Kenco to
the extent that such contract grants or denies benefits to employees on the basis of
union membership during the original 30-day period of employment. As Respond-
ent Union caused Kelly to be deprived of 2 weeks' pay or notice under the afore-
mentioned discriminatory provision of the contract, I shall also recommend that
Respondent Union make whole Kelly by paying him a sum of money equal to 2
weeks' severance pay; such amount, because it is in the nature of severance pay, shall
be unaffected by interim earnings outside the contract unit.
CONCLUSIONS OF LAW
1. Kenco is engaged in commerce within Section 2(6) and (7) of the Act
2. Respondent Union is a labor organization within Section 2(5) of the Act.
3. Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act by
maintaining a discriminatory contract provision with, and thereby causing, Kenco
to discriminate against employees and by specifically causing Kenco to discriminate
against Alfred Kelly in violation of Section 8(a) (3) of the Act.
4. The unfair labor practices found herein affect commerce within Section 2(6)
and (7) of the Act.
5. The record does not preponderantly establish that Respondent Union caused
Kenco to discharge Kelly.
[Recommendations omitted from publication.]