Writers Guild Of America, West, Inc (Alliance Of Motion Picture And Television Producers)

National Labor Relations Board - Board Decisions

Oct 19, 1989

297 N.L.R.B. 92 (N.L.R.B. 1989)

92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Writers Guild of America, West, Inc (Alliance of
Motion Picture and Television Producers) and
Edward Anhalt and William Blinn and Bob
Booker and Frank Cardea and Lionel Chetwynd
and L Travis Clark and Robert Collector and
Thomas Donnelly and Rift Fournier and Mi-
chael Robert (Bob) Gale and Dan Gordon and
Bruce Johnson and Neal Marshall and Mike
Marvin, and David Mich and Judith Paige
Mitchell and Larry Mollm and George Schenck
and Stuart Sheslow and Robert Singer and Mi-
chael A Zmberg Cases 31-CB-7705-1 through
31-CB-7705-21
October 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 29, 1989, Administrative Law Judge
Gerald A Wacknov issued the attached decision
The Respondent filed exceptions and a supporting
brief, the Charging Parties filed an answering brief,
cross-exceptions, and a brief in support of the
cross exceptions, and the Respondent filed an op-
position to the Charging Parties' cross-exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceedmg to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings, findings, and
conclusions and to adopt the recommended
Order 1
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Writers
Guild of America, West, Inc, Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
'In adopting the judge s finding of a violation of Sec 8(b)(1)(A) re
gardmg art X Discipline of the Respondent s constitution and bylaws
and in adopting his recommended Order we rely specifically on the ref
erence in that article to the imposition of fines We find It unnecessary to
decide whether the maintenance of the other disciplinary measures pro
vided for in that article also violates the Act because the Issue of the dm
unction among the vanous forms of discipline was not fully litigated by
the parties
Raymond M Norton Esq for the General Counsel
Julius Reich and Anthony R Segall Esqs (Retch Adell
Crost) of Los Angeles, California for the Respondent
Bradley T Raymond Esq of Southfield Michigan for
the Charging Parties
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV, Administrative Law Judge
Each of the charges in the aforementioned cases was
filed on July 14 1988 by the various individual Charg
mg Parties The charges were amended on August 26
1988 Thereafter on August 31 1988 the Acting Re
gional Director for Region 31 of the National Labor Re
lations Board (the Board) issued an order consolidating
cases, consolidated complaint and notice of hearing al
legmg a violation by Wnters Guild of America West
Inc (Respondent) of Section 8(b)(1)(A) of the National
Labor Relations Act (the Act)
Thereafter, on December 20 1988 the parties filed a
joint motion to waive hearing and transfer proceedings
to the Division of Judges On December 21 1988 the
acting associate deputy chief administrative law judge
issued an order transferring stipulated record to the ad
mmistrative law judge and setting date for filing of
bnefs Briefs timely filed, have been received from the
General Counsel counsel for Respondent and counsel
for the various Charging Parties
On the entire record and consideration of the briefs
submitted I make the following
FINDINGS OF FACT
I JURISDICTION
The Alliance of Motion Picture and Television Pro
ducers (AMPTP) is now, and has been at all times mate
nal herein an association comprised of various employ
ers with principal offices and places of business in the
State of California where they are engaged in the pro
duction of motion pictures for television and theatres
AMPTP exists for engages in collective bargaining for
and negotiates and executes collective bargaining agree
ments on behalf of its employer members with various
organizations, including the Respondent herein
The employer members of AMPTP in the course and
conduct of their business operations annually purchase
goods and services values in excess of $50 000 directly
from firms located outside the State of California
It is admitted and I find that the employer members
of AMPTP are now, and have been at all times material
herein employers engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The principal issues in this proceeding are whether
certain provisions incorporated in the Respondent s con
stitution and bylaws place unlawful restrictions on the
right of Respondent s members to resign their member
297 NLRB No 12
WRITERS GUILD (ALLIANCE OF PRODUCERS) 93
ship, and unlawfully subject them to discipline for con-
duct occurring subsequent to their resignation
B The Facts
The Respondent's constitution and bylaws contain,
inter aim, the following provisions
ARTICLE IV, SECTION 8
RESIGNATION
By accepting membership in the Guild members
agree that the continuation of membership status
and the applicability of discipline to all members,
especially during times of negotiation with employ-
ers or during strikes by the Guild, is essential to
their welfare and necessary for solidarity and to
achieve the objectives of the Guild, and that resig-
nation during or shortly preceding a strike by the
Guild shall not relieve a member of his/her obliga-
tions during the duration of such and related strikes
to observe the Guild's strike rules as applied to any
employer and to honor any primary picket line es-
tablished by the Guild Each member therefore
agrees with the other members to be subject to dis-
cipline pursuant to Article X, and as follows
a Only members who are in good standing and
who are not indebted to this Guild may tender their
resignation from the Guild,
c If a member tenders his/her resignation after
commencement of collective bargaining between
the Guild and one or more employers, and within
twenty-one (21) days prior to the expiration date of
the then current and applicable collective bargain-
ing agreement, and if a strike occurs within twenty-
one (21) days of the expiration of said collective
bargaining agreement, or if a member tenders
his/her resignation during a strike in the industry or
in a segment of the industry in which the member
during the term of the collective bargaining agree-
ment is or seeks to be employed, or to which the
member made sales or licensed literary materials or
seeks to make sales or license literary materials,
his/her resignation shall not relieve the member or
his/her obligation to observe the Guild strike rules
and a primary picket line of the Guild for the dura-
tion of such and related strikes, and such member
shall remain subject to Article X (Discipline) for the
duration of such and related strikes For purpose of
this section "related strike" means a strike which,
during the strike in which the member resigned or
which occurred within twenty-one (21) days of the
member's resignation, commences against another
employer or employers in the same segment of the
industry
ARTICLE X
Discipline
A GROUNDS
Any member who has resigned as described
in Article IV, section 8, Paragraph c, who shall be
found guilty, after a hearing in accordance with the
procedures herein prescribed, of crossing a primary
picket line of the Guild or of any act or failure to
act, or any conduct which is prejudicial to the wel-
fare of the Guild or of unfair dealing with another
member of the Guild, or with an employer or pur-
chaser or licensee of his/her material, or of failing
to observe the Constitution and By-Laws of this
Guild, or any work rules or strike rules of the
Guild, or any lawful order of the Board, or of fail-
ing to abide by the requirements of any Minimum
Basic Agreement or Code of Fair Practice to which
the Guild is party, may be suspended, declared not
in good standing, expelled from membership in the
Guild, be asked to resign or in lieu thereof, or in ad-
dition thereto, he/she may be censured, fined or
otherwise disciplined
The parties have stipulated to additional facts, as fol-
lows
1 From on or about March ,7, 1988, to on or
about August 7, 1988, Respondent was on strike
against various employers in the television and the-
atrical motion picture industry, including employer-
members of AMPTP, in furtherance of a primary
labor dispute
2 Of the 21 Charging Parties, 1 joined the Guild
in 1946, 4 joined in the 1960s, 9 joined in the 1970s
and 7 joined in the 1980s prior to 1988, and none of
them has, at any time material herein resigned or at-
tempted to resign from the Guild, nor has the Guild
disciplined or attempted to discipline any of the
Charging Parties . for so doing, or for actual or pur-
ported violations of the Constitutional provisions set
forth at paragraph 7 above
3 Prior to the time that they filed the unfair
labor practice charges herein the Charging Parties
were advised by their legal counsel that Respond-
ent's Constitutional provisions, set forth above, are
unlawful and unenforceable
4 At no time did any of the Charging Parties at-
tempt to work within the Guild's established proce-
dures to change or eliminate the Constitutional pro-
visions set forth above -
C Analysts and Conclusions
In Machinists Local 1414 (Neufeld Porsche-Audi), 270
NLRB 1330 (1984), the Board applied a per se rule gov-
erning the right of a member to resign from a union, and
held "that any restrictions placed by a union on its mem-
ber's right to resign are unlawful" Id at 1333
Therefore it is clear that under current Board law the re-
striction upon resignation embodied in Respondent's con-
stitution and bylaws, article IV, section 8, Resignation,
and paragraph "a" thereof, which provides that "only
members who are in good standing and who are not in-
debted to this Guild may tender their resignation from
the Guild" is impermissible
Paragraph c of article IV, section 8, Resignation, and
the related article, article X, Discipline, constitute an at-
tempt to retain sanction authority over a member who
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has tendered his or her resignation or who has resigned,
and permits the postresignation levying of fines or other
discipline against the member Such provisions are simi-
larly unlawful Thus, the Board in Neufeld, supra at
1336, stated that "it is no answer to say that an employee
is free to resign so long as he or she is 'willing to pay the
price,' because a 'right' to act, but at the risk of a debili-
tating fine, is no right at all"
Recognizing the foregoing applicable principles of
law, the Respondent, in its brief, has formulated an anal-
ysis of the issues herein in support of its argument that
the Board should reconsider its policy in this area, and
correctly suggests that these matters should appropriate-
ly be addressed to the Board I deem it unnecessary to
discuss the Respondent's arguments or make recommen-
dations in this regard, as the applicable current Board
law is clear
On the basis of the foregoing, I find that the Respond-
ent has violated the Act as alleged Pattern Makers
League v NLRB, 473 U S 95 (1985), Machinists Local
1414 (Neufeld Porsche-Audi), supra, Oil Workers (Texaco
Refining), 283 NLRB 2 (1987)
CONCLUSIONS OF LAW
1 The employer-members of the Alliance of Motion
Picture and Television Producers are employers engaged
in commerce and in businesses affecting commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3 The Respondent has violated Section 8(b)(1)(A) of
the Act as alleged
THE REMEDY
Having found that the Respondent has engaged and is
engaging in unfair labor practices in violation of Section
8(b)(1)(A) of the Act, it is recommended that the Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action necessary to effectuate the
policies of the Act Specifically, it is recommended that
the Respondent cease and desist from maintaining the re-
strictive provisions on resignations and postresignation
discipline found invalid herein, and expunge the provi-
sions from its constitution and bylaws Engineers & Scien-
tists Guild (Lockheed-California), 268 NLRB 311 (1983)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Writers Guild of America, West,
Inc , Los Angeles, California, its officers, agents, and
representatives, shall
1 Cease and desist from
'If no exceptions are filed as provided by Sec 102 46 of the Boards
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Maintaining in its constitution and bylaws the pro-
visions set forth in article IV, section 8, Resignation, and
paragraphs "a" and "c" thereof, and article X, Disci-
pline, and section A, Grounds, thereof
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Expunge from its constitution and bylaws the pro-
visions set forth in article IV, section 8, Resignation, and
paragraphs "a" and "c" thereof, and article X, Disci-
pline, and section A, Grounds, thereof
(b) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix " 2 Copies of
the notice to be provided by the Regional Director for
Region 31, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places, including places where notices to
members are customarily posted Reasonable steps shall
be taken by Respondent to ensure that such notices are
not altered, defaced, or covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading Posted by Order of the Nation-
al 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'
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT continue to maintain in our constitution
and bylaws those articles and provisions which restrict
the right of members to resign from the Guild and which
provide for the levying of postresignation fines or other
discipline It has been determined that article IV, section
8, Resignation, and paragraphs "a" and "c" thereof, and
article X, Discipline, and section A, Grounds, thereof,
impose unlawful restrictions on the right of members to
resign from this labor organization
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act
WE WILL expunge from our constitution and bylaws
those portions specified above
WRITERS GUILD OF AMERICA, WEST, INC