Petition — ASSOC. OF MOTION PICTURE PRODUCERS & TELEVISION PRODUCERS v. WRITER'S GUILD OF AMERICA, WEST, INC. (Nos. 76-1153, 76-1121, 76-1162)
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Supieme Court, U. $,
FILED
| FEB 22 1977
Supreme Court of the United States "-°2
October Term, 1976
DE, cicccsvent 4671153
ASSOCIATION OF MOTION PICTURE AND TELEVISION
PRODUCERS, INC.,
Petitioner,
vs.
WRITERS GUILD OF AMERICA, West, INC.,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Second Circuit.
Harry J. KEATON,
1800 Century Park East,
Los Angeles, Calif. 90067,
Attorney for Petitioner, Association
of Motion Picture and Television
Producers, Inc.
Of Counsel:
MITCHELL, SILBERBERG & KNUPP,
ANDREW B. KAPLAN.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
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IV.
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V.
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VI.
Reasons for Granting the Writ — 0... 4
A. The Decision Below Conflicts With Deci-
sions of Other Courts of Appeal —................ 4
B. The Instant Case Presents an Important
Question of Federal Law, Which Has Not
Been, but Should Be Settled by This Court .. 10
ii.
INDEX TO APPENDICES
a) EE App. pp. 6-13
Appendix B. Decision of Court of Appeals in
Chicago Typographical Union, No. 16 v. Na-
tional Labor Relations Board ................ App. p. 74
TABLE OF AUTHORITIES CITED
Cases Page
Chicago Typographical Union No. 16 and Ham-
mond Publishers, Inc., 216 NLRB 903 (1975) .
Chicago Typographical Union No. 16 v. National
Labor Relations Board, Hammond Publishers,
Inc., .... F.2d ..... No. 75-1320 (C.A.D.C., June
8 ee 4,
Florida Power & Light Co. v. International Brother-
hood of Electrical Workers, Local 641, 417 U.S.
— fg. etc 5, 7, 10,
International Brotherhood of Electrical Workers v.
National Labor Relations Board, 487 F.2d 1143
I ee 9,
International Union of Operating Engineers, Local
No. 9, AFL-CIO (Shelton Pipeline & Construc-
tion, Inc.) and Robert Collins, 213 NLRB 679
Ee
Local No. 492, United Brotherhood of Carpenters
and Joiners of America and Keystone Conserva-
tion Services, Inc., 211 NLRB 62 (1974) ......11,
Meat and Provision Drivers Union Local 626, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Food Employers Council, 224 NLRB No.
RS
New York Typographical Union No. 6 International
Typographical Union AFL-CIO and Daily Racing
Form, a subsidiary of Triangle Publications, Inc.,
216 NLRB 896 (1975) ooccccccccccccccccscecseecsseeen 5,
12
11
10
12
12
12
iv.
Page
Warehouse Union Local 6, International Longshore-
men’s and Warehousemen’s Union and Associated
Food Stores, Inc., 220 NLRB No. 123 (1975) .... 12
Wisconsin River Valley District Council of the
United Brotherhood of Carpenters and Joincrs of
America, AFL-CIO and Skippy Enterprises, Inc.,
211 NLRB 222 (1974), reaffirmed 218 NLRB
RG , ) a nee 7, 12
Wisconsin River Valley District Council of the
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO v. National Labor Rela-
tions Board, 532 F.2d 47 (C.A. 7, March 26,
|, ) nT wee rebicitil 4, 7
Writers Guild of America, West, Inc. and Associa-
tion of Motion Picture and Television Producers,
Pie ° | o. ESE 1, 12
Statutes
National Labor Relations Act, as amended, 61
Stats. 136, 73 Stats. 519, 29 USC §151, et seq... 2
National Labor Relations Act, Sec. 8(b)(1)(B) ....
Supreme Court of the United States
October Term, 1976
=
ASSOCIATION OF TION PICTURE AND TELEVISION
Propucers, INC.;
Petitioner, ~«
vs.
Writers GUILD oF AMERICA, West, INC.,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Second Circuit.
Petitioner, Association of Motion Picture and Tele-
vision Producers, Inc. (hereinafter referred to as the
“Association”), charging party and intervenor below,
respectfully prays that a writ of certiorari issue to
review a judgment of the United States Court of Ap-
peals for the Second Circuit.
I.
Opinions Below.
The opinion and dissenting opinion in the Court
of Appeals (Appendix A, pp. | to 6) is not yet offi-
cially reported. The decision and order of the National
Labor Relations Board (Appendix A, pp. 6 to 13) is
reported at 217 NLRB No. 159.
atfiies
Il.
Jurisdiction.
The judgment of the Court of Appeals was entered
on November 22, 1976, and this petition for certiorari
is being filed within ninety days of that date. The
jurisdiction of this Court is invoked pursuant to 28
USC Section 1254(1).
Ill.
Question Presented.
Whether a labor organization violates Section 8(b)
(1)(B) of the National Labor Relations Act, as amend-
ed, when it threatens to discipline and disciplines super-
visory members who cross a picket line during a strike,
and perform only their normal supervisory functions
and no rank-and-file struck work.
IV.
Statutes Involved.
The relevant provisions of the National Labor Rela-
tions Act, as amended, 61 Stats. 136, 73 Stats. 519,
29 USC §151, et seq., are as follows:
Section 8 * * *
(b) It shall be an unfair labor practice for
a labor organization or its agents—
(1) to restrain or coerce .. . (B) an employer
in the selection of his representatives for the pur-
poses of collective bargaining or the adjustment
of grievances. .. .
a
enfies
Vv.
Statement of the Case.
In March, 1973, the Writers Guild of America,
West, Inc. (hereinafter referred to as the “Guild”),
struck the employer members of the Association, who
the three national television networks, ABC, NBC and
CBS (Appendix A, p. 18). At the time of the strike,
a number of the Guild's members were employed by
these employers as Executive Producers, Producers, As-
sociate Producers, Directors, Story Editors and in other
executive capacities (Appendix A, p. 19). It is clear
that these persons were supervisors within the meaning
of the Act and that they were representatives of their
employers for the adjustment of grievances (Appendix
A, pp. 8; 22 to 27). The employers directed these super-
visors to continue to perform their normal supervisory
functions during the strike (Appendix A, pp. 37 to 38).
The Guild endeavored to prevent its supervisory
members from performing any services whatsoever for
the struck employers (Appendix A, pp. 32 to 34; 39 to
40). In furtherance of that effort, the Guild threatened
to discipline and did discipline supervisory members for
without regard to the fact that the employers did not
require the supervisors to perform any bargaining unit
or struck work, and that there was no evidence that such
bargaining unit or struck work had in fact been per-
formed by the supervisors (Appendix A, pp. 39 to 40).
The Administrative Law Judge concluded that the
Guild had coerced the employers in the selection of
their representatives for the purposes of collective bar-
gaining and the adjustment of grievances (Appendix
antiins
A, p. 63) and issued an appropriate remedial order
(Appendix A, pp. 67 to 71). The Board (Member Fan-
ning dissenting) affirmed the rulings, findings and con-
clusions of the Administrative Law Judge, adopted his
recommended order (Appendix A, p. 7) and sustained
“the complaint’s alleged violations of Section 8(b)(1)
(B) of the Act in toto” (Appendix A, pp. 8 to 9).
The Court of Appeals denied enforcement of the
ee) Gee 6 6S Gs aes Case
dissenting ) holding
“that the Board as a matter of law incorrectly
applied Section 8(b)(1)(B) to the instant case
. . . See Florida Power & Light Co. v. Interna-
tional Brotherhood of Electrical Workers, Local
641, 417 U.S. 790 (1974).” (Appendix A, pp.
1 to 6).
VI.
Reasons for Granting the Writ.
A. The Decision Below Conflicts With Decisions of Other
Courts of Appeal.
The decision of the court below in the instant case
is in direct conflict with the decision of the Court
of Appeals for the Seventh Circuit in Wisconsin River
Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO v. Na-
tional Labor Relations Board, 532 F.2d 47 (CA.
7, March 26, 1976) (hereinafter “Wisconsin River
Valley”) and with the decision of the Court of Appeals
for the District of Columbia in Chicago Typographical
Union No. 16 v. National Labor Relations Board,
Hammond Publishers, Inc., .... F.2d ..... No. 75-1320
(C.A.D.C., June 21, 1976), Petition for certiorari
filed on Nov. 16, 1976, No. 76-688 (Appendix B, p.
74) (hereinafter “Hammond Publishers” ).
4
.
-
:
,
;
:
enfin
All three decisions by the Courts of Appeal involve
the issue of whether a union violates Section 8(b)
(1)(B) if it disciplines supervisor-members, who are
8(b)(1)(B) representatives and who perform super-
visory functions during a strike.
In the instant case, there was no evidence that the
threatened and disciplined supervisor-members of the
Guild performed any rank-and-file or struck work dur-
ing the strike. Nevertheless, the court majority denied
enforcement of the Board order “for substantially the
reasons set forth in the dissenting opinion of Board
Member John H. Fanning” (Appendix A, p. 3).
Judge Moore, dissenting, would have enforced the
Board’s order because the Guild’s threats and disci-
plinary action “would inevitably have an effect of inclin-
ing these employees towards their unions in matters
supervisory and managerial when they should have
been free of any coercive influences.” (Appendix A,
p. 5).
The rationale of the decision below must be gleaned
from Board Member Fanning’s dissent which, in turn,
is based on his lengthy dissenting opinion in New
York Typographical Union No. 6 International Typo-
graphical Union AFL-CIO and Daily Racing Form,
a subsidiary of Triangle Publications, Inc., 216 NLRB
896, 897-902 (1975) (hereinafter “Triangle Publica-
tions”). There, the Board majority had reconsidered,
sua sponte, its prior decision, 206 NLRB 294 (1973),
in light of this Court’s decision in Florida Power and
stated:
“In Hammond Publishers, Inc., a Board majority
interpreted the Supreme Court’s holding in Florida
Power and Light to mean, inter alia that in situa-
——b--
‘only in the performance of supervisory activities
(not limited to grievance adjustment or collective
bargaining),’ a union’s disciplining of that super-
visor violates Section 8(b)(1)(B) of the Act
because ‘it is reasonably likely that an adverse
effect will carry over to the supervisor's perform-
ance of his 8(b)(1)(B) duties. . . .” In so holding
in Hammond, the Board focused on the type and
amount of activities performed by the supervisor-
member during the strike rather than, as urged
by the dissent herein, on the union’s professed
reason for imposing the discipline.
“We agree with the reasoning in Hammond
and feel that it controls in the instant case since
the disciplined supervisor-member herein per-
formed only his normal supervisory duties during
the strike.” (Emphasis added; footnotes omitted.)
Id. at p. 896.
Member Fanning, dissenting, concluded that whether
or not the discipline of supervisor-members of a union
violates Section 8(b)(1)(B) depends on the union’s
motive in imposing discipline. He distinguished between
discipline imposed because of the manner in which
a supervisor performed a collective bargaining or griev-
ance adjustment function, which he considered properly
proscribed, and discipline for working during a strike:
“. . . In a strike situation what the supervisor
does behind the picket line is, in the ordinary
case, and most assuredly in this one, completely
irrelevant. The union’s interest is quite simply
to preserve strike solidarity. It is specious to think
that the union cares an iota whether the member
. is adjusting a grievance, operating a press,
or engaged in any other activity while his fellow
i pi ara ee ae let
6 eee ea BR
a o>
—- =
members man a picket line. It cares only that
he is working during a strike.
*_ * *
“I believe union discipline of all members for
conduct related to and during a strike remains
unregulated by Congress . . .”. (Emphasis in
original) Jd. at pp. 899, 902.
In Wisconsin River Valley the Court of Appeals
for the Seventh Circuit, enforcing the Board’s order’,
like the Board majority here, determined that Section
8(b)(1)(B) requires an analysis of the supervisor's
duties rather than of the union’s motives in imposing
discipline:
“In sum, Florida Power and its antecedents
teach that the focus of a Section 8(b)(1)(B)
inquiry rests on the nature of the supervisors’
duties when discipline is imposed. Where super-
visors cross picket lines to perform regular super-
visory duties, union discipline violates Section 8(b)
(1)(B) since it tends to deprive the employer
of its supervisors’ services—including their §8(b)
(1)(B) services—and because the supervisors
would reasonably anticipate that union discipline
would also be imposed if future performance of
their §8(b)(1)(B) functions did not meet with
union approval.” (Emphasis added.) 532 F.2d
at p. 53.
The Court affirmed the Board’s order even though
the disciplined supervisor spent 30 percent of his time
1Wisconsin River Valley District Council of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO and
Skippy E , Inc., 211 NLRB 222 (1974), reconsidered
aL of Florida Power & Light Co. v. International Brother-
of Electrical Workers Local 641, et al., 417 U.S. 790
(1974) and reaffirmed 218 NLRB 1063 (1975).
—_ =
performing rank-and-file work, because his normal du-
ties had not been affected by the strike.
In Hammond Publishers, the Court of Appeals for
the District of Columbia, adopting the reasoning of
the National Labor Relations Board, without opinion,
affirmed the order of the Board in Chicago Typograph-
ical Union No. 16 and Hammond Publishers, Inc.,
216 NLRB 903 (1975) (Appendix B, p. 74). In
that case, an Administrative Law Judge had held that
the union did not violate Section 8(b)(1){B) in dis-
ciplining supervisors who performed largely supervisory
services during a strike because the union’s motive
was to keep the supervisors from working rather than
to restrain or coerce the employer in its selection
of representatives for collective bargaining or the adjust-
ment of grievances. The Board majority disagreed:
“We do not read the Supreme Court's decision
as turning on a determination of the motivation
behind a union’s act of discipline, but rather on
a determination of the reasonable effect of that
discipline on the supervisor's activities as an 8(b)
(1)(B) representative.
* * *
“The further question of ‘when that discipline
may adversely affect the supervisor's conduct
.. clearly depends on an analysis of the activity
engaged in by the supervisor during the period
for which the discipline is imposed rather than
on an evaluation of the union's motivation.” (Em-
phasis added; footnotes omitted.) Jd. at pp. 903-
4.
MO ne ade 4
afte:
The Board determined, and the Court affirmed, that
Section 8(b)(1)(B) had been violated by disciplining
the supervisors for working during the strike even
though they did perform a minimal amount of rank-
and-file struck work. Member Fanning dissented.
The conflict between the Court of Appeals for the
District of Columbia and the Court of Appeals for
the Second Circuit, in the instant case, is further em-
phasized by the following statement made by the former
court in its en banc decision in International Brother-
hood of Electrical Workers v. National Labor Relations
Board, 487 F.2d 1143, 1157 (C.A.D.C., 1973):
“When a supervisor acts as such he is a rep-
resentative of management and as such he should
be immune from discipline.” (Emphasis added. )
The existing conflict between the Courts of Appeal
may be summarized as ‘ollows: the Courts of Appeal
for the Seventh Circuit and for the District of Colum-
bia consider union discipline of a supervisor-member
for work during a strike violative of 8(b)(1)(B) if
the supervisor is an 8(b)(1)(B) management represen-
tative and engages during the strike primarily, though
not necessarily entirely, in his normal supervisory func-
tions. The Court of Appeals for the Second Circuit
does not consider such discipline violative of 8(b)
(1)(B), even if the supervisor performs no rank-and-
file work whatsoever, unless it can be shown that
the motive for the union’s discipline was to affect
his collective bargaining or grievance adjusting func-
tions and not to stop him from working entirely.
onttinns
B. The Instant Case Presents an Important Question of Fed-
eral Law, Which Has Not Been, but Should Be Settled by
This Court.
The conflicting opinions of the Courts of Appeal
and the decisions of the Board are replete with cita-
tions and interpretations of Florida Power. As a matter
of fact, however, the issue presented here was not
before this Court in Florida Power. As Board Member
Fanning, whose views are the sole basis for the decision
below, expressly recognized in his dissent in Hammond
Publishers, whether a union may discipline a super-
visor who engages solely in supervisory duties during
a strike is a factual question “left open by the Supreme
Court in Florida Power”. 216 NLRB at p. 908, n.
24.
In Florida Power the issue was narrowly limited
by the facts. As the majority pointed out:
“In Jilinois Bell . . . those who did work during
the strike but performed only their regular [super-
visory and managerial] duties were not disciplined
by the union. . . In Florida Power the union
did not discipline those who performed only their
normal supervisory functions.” (Emphasis added. )
417 US. at p. 812, n. 22.
The unions participating in that case had conceded
on oral argument in the Court of Appeals that super-
visors who crossed picket lines to perform supervisory
work remained immune from discipline. /nternational
Brotherhood of Electrical Workers v. National Labor
Relations Board, supra, at p. 1157.
The legal issue posed was framed narrowly by Justice
Stewart writing for the majority:
“The question to be decided is whether the unions
committed unfair labor practices under §8(b)(1)
(B) when they disciplined their supervisor-mem-
bers for crossing the picket lines and performing
rank and file struck work during lawful economic
strikes against the companies”. (Emphasis added. )
417 US. at 792.
The holding of the court was correspondingly nar-
row:
“ . . it is certain that these supervisors were
not engaged in collective bargaining or grievance
adjustment, or in any activities related thereto,
when they crossed union picket lines during an
economic strike to engage in rank and file struck
work . . . for these reasons, we hold that the
Respondent unions did not violate Section 8(b)
(1)(B) of the Act when they disciplined their
supervisor-members for perfoming rank-and-file
struck work”. (Emphasis added.) /d. at p. 813.
The narrowness of the decided issue was confirmed
by Justice White, writing for the minority:
“I do not read the Court to say that §8(b)(1)
(B) would allow a union to discipline supervisor-
members for performing supervisory or manage-
ment functions, as opposed to customary rank-
and-file work, during a labor dispute”. /d. at p.
815, n. 2.
The conflicting circuit court decisions are further
eloquent testimony to the fact that Florida Power did
not dispose of the issue in the instant case. This issue
is, however, of paramount importance in the area of
federal labor law and desperately needs to be authori-
tatively decided.
In the relatively short time span since this Court's
decision in Florida Power, the National Labor Relations
Board has faced this issue ir eight cases: Local No. 492,
online
United Brotherhood of Carpenters and Joiners of
America and Keystone Conservation Services, Inc., 211
NLRB 62 (1974); International Union of Operating
Engineers, Local No. 9, AFL-CIO (Shelton Pipeline &
Construction, Inc.) and Robert Collins, 213 NLRB 679
(1974); New York Typographical Union, AFL-CIO
and Daily Racing Form, a subsidiary of Triangle Pub-
lications, Inc., supra; Chicago Typographical Union No.
16 and Hammond Publishers, Inc., supra; Writers Guild
of America, West, Inc. and Association of Motion Pic-
ture and Television Producers, Inc., supra; Wisconsin
River Valley District Council of the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO and
Skippy Enterprises, Inc., supra; Warehouse Union Local
6, International Longshoremen’s and Warehousemen's
Union and Associated Food Stores, Inc., 220 NLRB No.
123 (1975); Meat and Provision Drivers Union Local
626, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America and Food
Employers Council, 224 NLRB No. 40 (1976).
The issue is likely to arise in any strike where
work force supervisors who are members of the strik-
ing union. Accordingly, the current uncertainty of the
law has a major unsettling effect on labor relations
in numerous industries. Only an authoritative decision
by this Court can eliminate this uncertainty and, thus,
effectuate the purpose of the Act.
For the foregoing reasons, it is urged that the Peti-
tion for a Writ of Certiorari be granted.
Respectfully submitted,
Harry J. KEATON,
Attorney for Petitioner, Association
of Motion Picture and Television
Producers, Inc.
Of Counsel:
MITCHELL, SILBERBERG & KNuPP,
ANDREW B. KAPLAN.
February 17, 1977.
*
io
;
APPENDIX A.
United States Court of Appeals for the Second Cir-
cuit.
Nos. 604, 1161—September Term, 1975. (Argued
May 10, 1976. Decided November 22, 1976.) Docket
Nos. 75-4089, 75-4121.
American Broadcasting Companies, Inc., CBS, Inc.,
and National Broadcasting Company, Inc., Petitioners,
and Association of Motion Picture and Television Pro-
ducers, Inc., /ntervenor, v. National Labor Relations
Board, Respondent.
National Labor Relations Board, Petitioner, and
American Broadcasting Companies, Inc., CBS, Inc. and
National Broadcasting Company, Inc., Intervenors, v.
Writers Guild of America, West, Inc., Respondent.
Before: Moore and Timbers, Circuit Judges, and
Newman, District Judge.*
Petition to review, and application to enforce, order
of National Labor Relations Board, 217 N.L.R.B. No.
159 (1975), requiring a labor union to cease and
desist from certain conduct during a four month strike
in the spring of 1973 which the Board found to be
in violation of Section 8(b)(1)(B) of the National
Labor Relations Act and to take certain affirmative
action to remedy the violations.
Enforcement denied.
*Hon. O. Newman, United States District Judge,
Sunde ct Connontons, dung ty doiguaton
enfiun
John G. Elligers, Atty., NLRB, Washington, D.C.
(John S. Irving, Gen. Counsel, John E. Higgins,
Jr., Deputy Gen. Counsel, Elliott Moore, Deputy
Assoc. Gen. Counsel, NLRB, Washington, D.C.,
on the brief), for Petitioner-Respondent National
Labor Relations Board.
Richard N. Fisher, Los Angeles, Cal. (Steven C. Babb,
and O'Melveny & Myers, Los Angeles, Cal., on
the brief), for Petitioners-Intervenors American
Broadcasting Companies, Inc., CBS, Inc., and Na-
tional Broadcasting Co., Inc.
Harry J. Keaton, Los Angeles, Cal. ( Andrew B. Kaplan,
and Mitchell, Silberberg & Knupp, Los Angeles,
Cal., on the brief), for Intervenor Association
of Motion Picture and Television Producers, Inc.
Julius Reich, Los Angeles, Cal. (Reich, Adell & Crost,
and Selvin & Weiner, Los Angeles, Cal., on the
brief), for Respondent Writers Guild of America,
West, Inc.
Per Curiam:
On this petition to review by the networks ( American
Broadcasting Companies, Inc., CBS, Inc., and National
Broadcasting Company, Inc.), and an application by
the National Labor Relations Board to enforce, an
order of the Board, 217 N.L.R.B. No. 159 (1975),
requiring the union (Writers Guild of America, West,
Inc.) to cease and desist from certain conduct during
a strike found to be iv. violation of Section 8(b)(1)(B)
of the National Labor Relations Act and to take certain
_
affirmative action to remedy the violations, we find
the essential issue to be whether as a matter of law
the Board correctly applied Section 8(b)(1)(B) im
concluding that the union restrained and coerced the
employers by threatening to blacklist and discipline
and by fining and expelling from membership certain
supervisory personnel who crossed the picket lines dur-
ing a strike.
For substantially the reasons set forth in the dissent-
ing opinion of Board Member John H. Fanning, 217
N.L.R.B. No. 159, we hold that the Board as a matter
of law incorrectly applied Section 8(b)(1)(B) to the
instant case and we deny enforcement of the Board's
order. See Florida Power & Light Co. v. International
Brotherhood of Electrical Workers, Local 641, 417 US.
790 (1974).
Enforcement denied.
anion
Moore, Circuit Judge ( Dissenting):
I cannot join in the conclusion of the majority
that enforcement should be denied because in my opin-
ion the facts and the law clearly call for an opposite
result, i.e., the granting of enforcement.
Briefly, three broadcasting companies, American
Broadcasting Companies, Inc., CBS, Inc. and National
Broadcasting Company, Inc., certain of their employees
(writers of material for live, nationally-broadcast tele-
vision programs), Writers Guild of America, West Inc.
(the “Guild”) and the National Labor Relations Board
(the “Board”) and an Intervenor are involved. In
March 1973 the Guild called a strike. Many of the
Guild’s members were employees vested with super-
visory and managerial functions. Certain of these em-
ployees crossed the Guild’s picket lines. Against this
group the Guild brought disciplinary proceedings which
resulted in the imposition of fines and other sanctions.
The name given to this category of employee, namely,
supervisors or management representatives, is “hyphen-
ate”. Various hearings were held between May 21,
1973 and January 25, 1974 before an Administrative
Law Judge (“ALJ”) which resulted in a lengthy opin-
ion, dated September 18, 1974, wherein he found that
the Guild, by its actions, restrained and coerced the
employees of Guild members who were hyphenates
in the selection of their representatives for the purpose
of collective bargaining or the adjustment of grievances.
The ALJ order contained certain “cease and desist”
provisions relative to any employee whose functions
involved supervisory or managerial tasks and enjoined
disciplinary proceedings against such group by way
of fines or otherwise.
ee ee
-
4
‘
The majority's reliance on Florida Power & Light
Co. v. International Brotherhood of Electrical Workers,
Local 641, 417 U.S. 790 (1974) is misplaced. In
Florida Power, the Court of Appeals (487 F.2d 1143,
1157 [D.C. Cir., 1973] ) stated:
“When a supervisor acts as such he is a representa-
tive of management, and as such he should be
pating in the present cases conceded as much
at oral argument when they agreed that when
a supervisor crosses a picket line to perform super-
visory work, he remains immune from discipline.”
(Emphasis in original )
In the Supreme Court, the Court made it clear
that there is a definite cleavage between supervisory
work and “rank-and-file” work, and stated:
“The question to be decided is whether the unions
committed unfair labor practices under §8(b)(1)
_
(®) when they disciplined their supervisor-mem-
bers for crossing the picket lines and performing
rank-and-file struck work during lawful economic ©
strikes against the companies.” (Emphasis added)
417 US. at 792.
The basis of the Supreme Court’s decision was made
even clearer when it stated:
“The conclusion is thus inescapable that a union’s
discipline of one of its members who is a super-
visory employee can constitute a violation of §8
(b)(1)(B) only when that discipline may adverse-
ly affect the supervisor's conduct in performing
the duties of, and acting in his capacity as, griev-
ance adjuster or collective bargainer on behalf
of the employer.” 417 U.S. at 804-5.
The Court of Appeals should not usurp the function
of the ALJ and Board unless there is a complete
absence of evidence to support its findings. Both con-
cluded that the hyphenates were bona fide supervisors
and had managerial functions. Since there is more
than adequate proof to support these findings, I would
enforce the Board’s order.
Decision and Order.
217 NLRB No. 159
United States of America, Before the National Labor
Relations Board.
Writers Guild of America, West, Inc. and Associa-
tion of Motion Picture and Television Producers, Inc.’
and American Broadcasting Companies, Inc., Columbia
Broadcasting System, Inc., National Broadcasting Com-
‘Hereinafter referred to as the Association.
ee ee
sadfiun
pany, Inc.* and QM Productions. Cases 31—CB—
1203—2, and 31—-CB—1316, Cases 31—CB—1223,
and 31—CB—1313, and Case 31—CB-—1355.
On September 18, 4, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions*®
and a supporting brief, and Charging Parties Networks
and the Association filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Nation-
al Relations Board has delegated its authority 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 to the
extent consistent herewith, and to adopt his recom-
mended Order.
1. The Administrative Law Judge found violations
of Section 8(b)(1)(B) only with respect to the “hy-
phenates™ in the producer, director, and story editor
classifications because the record showed that, except
for Jerome Bredouw, all of the persons who were
both charged and tried by the Union occupied those
positions. With respect to Jerome Bredouw, he found
*Hereinafter referred to as the Networks.
*In its brief to the Board, Respondent withdrew its contention
that certain issues should be deferred to arbitration under Collyer
Insulated Wire, 192 NLRB 837 (1971). Accordingly, that
issue is not before the Board for resolution.
*““Hyphenates” is a term ied to persons who are writers
but possess the ability to orm in more than one capacity,
such as ——g Sy -, or editing for their em
in the industry. We affirm the Administrative Law ge’s
findings that hyphenates who are also producers, directors, and
~ hw are supervisors within the meaning of Sec. 2(11)
afin
that the charges against Bredouw were dismissed after
trial, and that no penalty was assessed against him.
The Administrative Law Judge therefore concluded that
it was unnecessary to consider alleged violations as
to those hyphenates in other classifications,’ and he
therefore did not resolve these additional allegations
in the complaint. The Association and the Networks,
two of the Charging Parties herein, except to this
omission for reasons we deem meritorious.
There is no question that, although only some of
the hyphenates were brought to trial and actually fined
or disciplined for crossing the picket line, all of the
hyphenates named in the complaint were threatened
with similar discipline and adverse action if they crossed
the picket line to go to work. There is also no question
that when Respondent threatened the hyphenates, Re-
spondent was determined to enforce its threats without
regard to the fact that the Charging Parties uniformly
followed a policy during the strike not to require hy-
phenates to perform any unit or struck work. Further-
more, if it had any doubt at all, Respondent could
easily have ascertained whether any struck work was
in fact performed by comparing dated scripts to the
final film production. As we find that Section 8(b)(1)
(B) proscribes the disciplinary action here taken against
*Included in these classifications are vice presidents for pro-
=? production, vice presidents for production, vice presidents
or pr development, general programming executives, man-
agers of film programs, and executives. Although the Adminis-
trative Law Judge made no finding on the supervisory status
of persons these tions, we find it necessary to
do $0. The record clearly that persons in these classi-
|
3
enffies
some hyphenates* (but only threatened against others),
it would seem to follow, and we further find, that
the proscription also encompasses the threat to take
the prohibited disciplinary action.’ We therefore sustain
the complaint’s alleged violations of Section 8(b)(1)
(B) of the Act, in toto.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
‘tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby orders
that the Respondent, Writers Guild of America, West,
Inc., Los Angeles, California, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, except that the attached no-
tice is substituted for that of the Administrative Law
Judge.
Dated, Washington, D.C. May 13, 1975.
Howard Jenkins, Jr.,
Member
John A. Penello,
Member
NATIONAL LABOR RELATIONS
BOARD
(SEAL)
*Chicago Typographical Union No. 16 (Harmmond Publish-
ers, Inc.), 216 NLRB No. 149 (1975); New York Typographi-
cal Union No. 6, International Typographical Union, AFL-
CIO (Daily Racing Form, a Subsidiary of Triangle Publishers,
Inc.), 216 NLRB No. 147 (1975).
tLocal 423, Laborers’ International Union of North America,
AFL-CIO (Mansfield Flooring Co., Inc.), 195 NLRB 241
(1972); International Union of Operating Engineers, Local 406,
AFL-CIO (New Orleans Chapter, Associated General Contrac-
tors of America, Inc.), 189 NLRB 255, 265 (1971); United
Slate, Tile & Composition Roofers, Damp & Waterproof Work-
ers Association, Local No. 220 (Jones and Jones, Inc.), 177
NLRB 632, 653 (1969).
--10-—
MEMBER FANNING, dissenting:
For the reasons stated in my dissenting opinion
in Triangle Publications, Inc., 216 NLRB No. 147,
I would ‘dismiss the complaint. I wish to point out,
once again, that the Supreme Court has, in Florida
Power & Light Co.," indicated that Section 8(b)(1)
(B) was designed for the sole and limited purposes
of preventing labor organizations from forcing employ-
ers into multiemployer bargaining negotiations and from
dictating to employers whom they should select to
represent them during grievance adjustment procedures
and/or collective-bargaining sessions. Our prior “evolu-
tionary” approach® to this section of the Act having
thus been rejected by the Supreme Court, it is obvious
that the very narrow thrust accorded the section in
its early years must be reconstituted as its current
thrust. Whatever the wisdom of Respondent's course
of action herein, the plain fact is that its actions are
not, in my view, proscribed by the section upon which
the General Counsel relies. I thus dissent.
Dated, Washington, D.C. May 13, 1975.
John H. Fanning,
Member
NATIONAL LABOR RELATIONS
BO.
"Florida Power & Light Co. v. International Brotherhood
Electrical Workers, Local 641, 417 U.S. 790 (1974).
*For a discussion of the history of Section 8(b)(1)(B)
id. at 798-805.
g&
—
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
WE WILL NOT restrain or coerce any employer
in the selection of representatives for the purpose of
collective bargaining or the adjustment of grievances:
(a) by issuing rules, orders, directions, or instruc-
tions in any form to any such employer representa-
tive not to perform supervisory, executive, or man-
agerial functions for an employer, or
(b) by threatening any such employer representa-
tive with fines, suspension, or expulsion from mem-
bership, blacklisting, ostracism, or any other pen-
alty or reprisal for performing supervisory, execu-
tive, or managerial functions, or
(c) by charging or trying any such employer
representative for performing supervisory, execu-
tive, or managerial functions, or
(d) by fining or otherwise disciplining any such
representative for performing supervisory, execu-
tive, or managerial functions, or
(e) by enforcing in any other manner any such
WE WILL NOT in any like or related manner
restrain or coerce any employer in the selection of
representatives for the purpose of collective bargaining
or the adjustment of grievances.
WE WILL rescind and revoke, and expunge from
our records, any fine, suspension, or expulsion from
membership or any other penalties to the extent previ-
ously imposed on the following persons, or on any
axffies
other representative of an employer for the purpose
of collective bargaining or the adjustment of grievances,
who worked as a supervisor, executive, or in a man-
agerial position during the strike which began on or
about March 4, 1973, and advise such persons of
this action:
Hugh Benson
Robert Blees
Cy Chermack
Robert A. Cinader
Barry Crane
Jon Epstein
David Levinson
jonn T. Mantley
Herman S. Saunders
David Victor
WE WILL reimburse the persons named and de-
scribed above for any fines imposed upon them for
working during the strike which began on or about
March 4, 1973, with interest thereon at 6 percent
per annum.
WRITERS GUILD OF AMERICA, WEST, INC.
(Labor Organization )
(Representative ) ( Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board’s
Office, 12100 Federal Building, 11000 Wilshire Boule-
—_— =
vard, Los Angeles, California 90024, Telephone 213-
824-7351.
Decision
United States of America, Before the National Labor
Relations Board, Division of Judges, Washington, D.C.
Writers Guild of America, West, Inc. and Association
of Motion Picture and Television Producers, Inc. Case
No. 31-CB-1203-2.
Writers Guild of America, West, Inc. and American
Broadcasting Companies, Inc. Columbia Broadcasting
System, Inc. National Broadcasting Company, Inc. Case
No. 31-CB-1223.
Writers Guild of America, West, Inc. and Association
of Motion Picture and Television Producers, Inc. Case
No. 31-CB-1316.
Writers Guild of America, West, Inc. and American
Broadcasting Companies, Inc. Columbia Broadcasting
System, Inc. National Brc adcasting Company, Inc. Case
No. 31-CB-1313.
Writers Guild of America, West, Inc. and QM Pro-
ductions. Case No. 31-CB-1355.
Philip R. LeVine, Esq., for the General Counsel.
Charles K. Hackler, Esq., and Gerald Goldman, Esq.
(Levy, VanBourg & Hackler), and John A. Men-
donsa, Esq., Los Angeles, Calif., for the Respond-
ent.
Harry J. Keaton, Esq. (Mitchell, Silberberg & Knupp;
Andrew B. Kaplan, Esq., on the brief); David
G. Miller, Esq. (Loeb and Loeb), Los Angeles,
Calif.; for the Charging Party AMPTP.
Richard N. Fisher, Esq. (O'Melveny & Myers; Ray-
mond P. Hermann, Esq., on the brief), Los An-
geles, Calif. for the Charging Party Networks.
anfi*nn
Statement of the Case
SIDNEY J. BARBAN, Administrative Law Judge:
This matter was heard at Los Angeles, California,
on several dates from May 21 until November 26,
1973." The hearing was closed by an order dated
January 25, 1974.
1. Procedure
Upon a charge filed in Case No. 31-CB-1203-2, on
March 8, against Writers Guild of America, West,
Inc. (herein “Respondent”) by Association of Mo-
tion Picture and Television Producers, Inc. (herein
“AMPTP”), and a charge filed in Case No. 31-CB-
1223, on April 4, against Respondent by American
Broadcasting Companies, Inc. (herein “ABC”), Colum-
bia Broadcasting System, Inc. (herein “CBS”) and
National Broadcasting Company, Inc. (herein “NBC”)
(herein jointly “the Networks”), the Regional Director
for the Thirty-first Region, on April 18, issued an
Order Consolidating Cases and a Consolidated Com-
plaint against Respondent, which was amended by the
issuance of a Consolidated Amended Complaint on
May 23. Respondent filed timely answers. Hearing
on this complaint was concluded on June 13.
Upon a charge filed in Case No. 31-CB-1313, on
July 11, by the Networks, and a charge filed in Case
No. 31-CB-1316, on July 16, by AMPTP against the
Respondent, the Regional Director, on July 25, issued
an Order consolidating those two cases and a Consoli-
dated Complaint. Respondent filed timely answer. By
a Joint Motion dated August 2, the parties requested
that the four cases be consolidated, and the record
‘All dates herein are in 1973, unless otherwise noted.
anfGu-
reopened for further hearing. This motion was granted
by order dated August 10.
Upon a charge filed in Case No. 31-CB-1355, on
timely answer. By motion dated November 9, General
Counsel requested that Case No. 31-CB-1355 be con-
solidated for the purposes of hearing and decision
with the four cases previously consolidated. On No-
vember 13, an Order to Show Cause why this motion
should not be granted was issued. The motion was
captioned cases, to which Respondent filed an answer
dated December 13. Finally, in lieu of further hearing
these matters, all parties submitted a stipulation
facts with
Order dated January 25, 1974, General Counsel's
motion to substitute the Second Consolidated Amended
into the record, and the stipulation of facts, with speci-
fied exhibits, was received, the hearing in this proceed-
ing was closed, the date set for receipt of briefs.’
2Exhibit numbers have previously been assi to all formal
t,t Ae Order of January 25, 1974
thereto, received
General
ee ia i esd coccbeed oo General
Exhibit 14L, and the response is received as General
Counsel's Exhibit 14M.
—lo—
2. Allegatioes
The various ¢ mplaints issued in this proceeding,
cumulated in the Second Consolidated Amended Com-
plaint (herein referred to as the complaint), allege
that Respondent violated Section 8(b)(1)(B) of the
Act by restraining and coercing employer-members of
AMPTP, and NBC, CBS, ABC, and QM in the selec-
tion of their representatives for collective bargaining
and the adjustment of grievances by threatening to
discipline and by disciplining certain persons and classes
of persons employed by the aforesaid employers, such
persons and classes of persons being, it is alleged,
members of Respondent, and supervisors within the
meaning of the Act for their respective employers and
representatives or potential and likely representatives
for their employers for the purposes of collective bar-
gaining or the adjustment of grievances within the
*After the decision of the Court in Florida Power
& Light Co. v. 1B EW. 641, a al., .. US .., %
—_— =
Findings and Conclusions
I. Jurisdiction
AMPTP ‘ts an association located at Los Angeles
admitting to membership firms engaged in the produc-
films, and existing, in part, for the purpose of negoti-
agreements on behalf of its employer-members with
the bargaining representatives of their employees, in-
cluding the Respondent. AMPTP members collectively
annually sell and ship from their studios in California
directly to points outside that state motion picture
films and other products valued in excess of $50,000.
ABC, CBS, and NBC each have offices in various
locations throughout the United States including Cali-
fornia, and each derives gross revenues in excess of
$100,000 from sales to customers located outside Cali-
fornia, and each annually purchases goods valued in
excess of $50,000 directly from suppliers located out-
side California.
QM, a corporation with its principal place of business
in Burbank, California, engaged in the production and
distribution of motion picture and television films, annu-
ally sells such films valued in excess of $50,000 directly
to customers located outside California.
Respondent's answer admits, and it is found that
the Association, and its members through the Associa-
in commerce within the meaning of the Act.
attiiu:
Respondent’s answer admits, and it is found that
Respondent is now and at all times material has been
a labor organization within the meaning of the Act.
Il. Preliminary Statement of Facts
and Principal Issues
Respondent has for some time represented persons
engaged in writing functions employed by members
of AMPTP, the Networks, and certain independent
producers such as QM. As a result of prior bargaining,
Respondent was a party to collective-bargaining agree-
ments with AMPTP, for its members, with the Net-
works, and with QM due to expire in 1973. The
AMPTP agreements were terminated effective March
4, by notice from the Respondent pursuant to the
terms of the agreements. On or about that same date,
Respondent engaged in a strike against the AMPTP
and its employer members which continued until June
24, during which time Respondent picketed some of
those employers at various times. Beginning on or
about March 29 and continuing until July 12, Respond-
ent engaged in a strike against NBC, CBS, and ABC,
and maintained picket lines at the premises of each
of them. Beginning on or about March 4, and continu-
ing until March 17, Respondent engaged in a strike
against and maintained a picket line at the premises
of QM.
In February and thereafter, Respondent adopted and
distributed to all its members some 31 strike rules
(later reduced to 30, as discussed hereinafter), in
anticipation of the strike which ensued. In essence
these rules (hereinafter considered in some detail) for-
bade members of Respondent to do any work of any
sort for employers on strike, or to cross picket lines
asfiirs
to go upon the premises of such employers without
specific permission of Respondent. Respondent took
other action, and caused certain publicity to issue de-
signed to impress upon its members the consequences
of violating these Rules.
At the times material to this proceeding, Respond-
ent’s membership included a substantial number of
persons engaged in performing functions other than
writing for their employers in the industry. Because
of their ability to perform in more than one capacity,
such as producing, directing, or writing, these persons
are referred to as “hyphenates”. It would appear that
many of these, if not most, have not engaged in
creative writing for years. Respondent asserts, however,
that even when their principal function is other than
writing, the nature of the work is such that they must
and do engage in some writing. The hyphenate’s princi-
pal work function (other than writing) will sometimes
be referred to herein as his (or the) “primary function.”
General Counsel contends that these hyphenates oc-
cupy supervisory positions within the meaning of the
Act, and are representatives, or potential and likely
representatives, for their respective employers for the
purposes of collective bargaining or the adjustment
of grievances.
The record indicates that Respondent was particular-
ly concerned that its hyphenate members should not
cross picket lines or go to work during the strike.
Members who were in a withdrawn status prior to
the strike were reactivated. Most of the hyphenates
appear to have held only associate membership in Re-
spondent at the time. Those hyphenates questioned
indicated their understanding that, as associate mem-
afiu
bers, they had no right to vote on the adoption o
the Respondent's strike rules, and did not do so. With
one exception, the hyphenates also testified to the
same effect with respect to the vote authorizing Re-
spondent to strike. Herbert Wright, an associate pro-
ducer, testified that at the strike vote meeting he was
given a card permitting him to vote on authorization
of the strike, but was not given an opportunity to
vote on the strike rules.
Respondent’s Constitution and By-Laws in evidence
(G.C. Exh. 12a) are confusing on the issue. Those
in effect until December 1972 provide in Article IV,
Section 6, paragraph 1, that associate members shall
not have the right to vote, while Article XIV, Sec-
tion 8 (last paragraph) states certain restricted circum-
stances in which associate members may vote on strikes.
In the latter part of the booklet are proposed changes
in the Constitution and By-Laws. Assuming that these
were in effect at times material to this case, Article
IV, Section 7(b) provides that associate members under
certain conditions (different from those noted above)
might vote on strikes. However, it is not shown that
any hyphenate involved herein satisfied these latter
conditions. Counsel for Respondent, during the dis-
ciplinary hearing concerning hyphenate-member Coles
Trapnell, asserted that Associate Members could not
vote on the strike rules as such.
At least one of these hyphenate-members attempted,
prior to the strike, to resign from membership in Re-
spondent. In accordance with the provisions of the
Constitution and By Laws, Respondent rejected the
attempted resignation, “in view of current contract ne-
gotiations and the importance to the Guild of maintain-
ing effective communication with its membership,” ad-
anftine
vising that the member must maintain his membership
at least during the period of negotiations and probably
for 6 months thereafter. This became known to other
hyphenates prior to the strike. It was stipulated by
the parties that at all times material this refusal to
permit any member to resign from membership during
the pendency of collective-bargaining negotiations, and
for 6 months thereafter, was the policy of Respondent.
From approximately April 6 through about Novem-
ber 8, Respondent served charges for violation of strike
rules and notice of disciplinary hearing upon at least
31 hyphenate-members. At least 15 such hearings have
been held and penalties imposed on no less than 10
of those charged. It is indicated that other trials were
contemplated at the time of the receipt of the filing
of the last stipulation of facts by the parties and
that appeals were pending from penalties imposed.
Other action appears to have been stayed pending dis-
position of this proceeding.
The major issues to be resolved are the following:
1. The alleged status of the various hyphenates
as supervisors and representatives for collective bargain-
ing and the adjustment of grievances. This is consider-
ably litigated. However, in its brief, Respondent, as
hereinafter noted, appears to concede that hyphenates
performing many functions in dispute (other than that
of story editor) are supervisors within the meaning
of the Act, and may adjust grievances of employees
other than writers represented by Respondent.
2. Whether various actions of alleged restraint and
coercion of hyphenates by Respondent designed to com-
pel the hyphenates to cease work for the struck em-
ployers, and Respondent’s actions in charging, trying,
—227—
and penalizing such members for going to work during
the strike, violated Section 8(b)(1)(B) of the Act.
Also whether Respondent's refusal to allow such hy-
phenates to resign from membership in these circum-
stances violated the Act.
3. Whether certain issues in this matter should
be deferred to arbitration under the parties’ collective-
bargaining contracts.*
III. The Supervisory Issues
The General Counsel contends that persons perform-
ing the following functions are supervisors within the
meaning of the Act, and are representatives or potential
or likely representatives of the employers for the pur-
poses of collective bargaining or the adjustment of
grievances;
1. Executive Producer, Producer, and Associate
Producer. The producer has the primary responsibility
for the production of films for motion pictures or
for television. This responsibility begins with the idea
or concept for the film or the series; includes involve-
ment in the budget for the film; the employment of
anfiien
under the supervision of the producer or others asso-
ciated with the producer; the employment of a director
and cast for the film, as well as other employees
necessary to make the film (cameraman, etc.); the
selection of sets, locations; the performance of execu-
tive functions during the filming; and the performance
of executive functions in the post-production stages,
after filming.
The producer has substantial responsibility and au-
thority in adjusting grievances between directors and
craft employees, directors and actors and actresses,
between two or more actors or actresses, and in
other similar situations. Producers also have responsi-
bility and authority to adjust grievances involving writ-
ers, as in the case of disputes between writers and
story editors. In one instance in which a dispute arose
as to whether a commitment had been made to a
free-lance writer, the producer involved decided that
no commitment had been made. The testimony shows
that if the producer had decided that a commitment
had been made, that would have been binding and
resolved the dispute. Producers also make the initial
determination in situations in which there may be dis-
pute over the assignment of screen credits to writers,
although this is a complex matter, subject to extensive
review. In situations in which the film is being shot
on a distant location, the producer may be involved
in negotiating or agreeing to short-term agreements
with local unions where the services of local craft
members are required, and possibly adjusting, or at-
tempting to adjust, local jurisdictional conflicts.
In general, an executive producer supervises one
or more producers (this seems to be particularly the
case in the television industry where an executive pro-
affine
ducer may have responsibility for several series or
projects at the same time, each with its own producer).
The associate producer is an assistant to the producer.
Without distinguishing among them in detail, it is clear
on this record that persons occupying these positions
in the motion picture or television industries have the
authority to hire, terminate, and responsibly direct other
employees, and to adjust employee grievances, or to
effectively recommend such action, and are thus super-
visors within the meaning of Section 2(11) of the
Act. Respondent does not contest this finding or con-
clusion (brief, pp. 7-8), except, as noted, in respect
to the producer’s role in adjusting grievances of writers.
(Brief, pp. 4, 7-8). As found above, however, I find
that producers, executive producers and associate pro-
ducers do or potentially may adjust grievances involving
writers.
Respondent contends that persons performing the
functions considered here, as well as those occupying
positions described hereinafter, as a normal part of
their work, perform writing functions coming within
the jurisdiction of Respondent. This contention will
be considered hereinafter in a separate section of this
decision devoted to this issue.*
The record indicates approximately 80 hyphenate-
—_— =
Producer, Producer, or Associate Producer employed
by the charging parties in this matter (including major
members of AMPTP). Among them, the following
were charged by Respondent with violation of its strike
rules: Philip Barry, Hugh Benson, Cy Chermack, Rob-
ert Cimader, Barry Crane, Jon Epstein, Andrew J.
Fenady, Stephen Heilpern, Ron Honthaner, Leonard
Katzman, David Levinson, Roger Lewis, James Mc-
Adams, John T. Mantley, Thomas L. Miller, Martin
Ransohoff, William Roberts, Albert Ruddy, Herman
S. Saunders, David Victor and Herbert Wright.* Of
these, Chermack, Cinader, Crane, Epstein, Levinson,
Saunders, Victor, Ruddy, Benson, and Roberts were
brought before trial panels set up by Respondent. Some
of these were disciplined by Respondent as noted here-
inafter.
2. Directors. Persons in this category are in direct
charge of the principal photography of the film. They
hire or effectively recommend the employment of crew
and actors, effectively direct such employees, and may
discharge or effectively recommend the discharge of
employees. They have authority to and do adjust griev-
ances of such employees. It is found that persons
performing the functions of director in the television
and motion picture industries are supervisors and adjust
grievances of employees within the meaning of the
Act.
The record indicates approximately 15 hyphenate
members of Respondent in this position employed by
the charging parties (without duplicating those listed
Neg yy te A — - -y 4f t-
Cc
Exh. as received charges who were not listed in
the phy &- A AY whom copies of
the were not submitted.
—2%—
as producer-directors, or the like). Of these Respondent
charged the following with violation of its strike rules:
Philip Kaufman, Michael Crichton and Sam Peckinpah,
Crichton was brought before a trial panel and was
tisciplined
3. Story editors, story consultants, script consult-
ants, executive story editors, executive story consult-
ants. Although there may be some differences among
these classifications, or in the requirements of the var-
ious employers for these positions, these job functions
may be considered together for our purposes under
the title of “story editor.” The story editor is of principal
assistance to the producer in the highly important func-
tions of dealing with scripts and writers. The story
editor may be, and frequently is, concerned with reading
and acquiring scripts, interviewing writers and recom-
mending them for hire (or otherwise), directing and
supervising writers in the development of ideas and
the preparation of scripts, and in recommending that
writers not be retained. On a television series, the
story editor may participate with the producer in the
initial determination of any dispute over screen credits.
He also may serve as a buffer between management
and the writer, as in ameliorating a writer's distress
over material that has been rewritten. Thus one execu-
tive story editor testified that because he is the first
person in the studio that the writer meets, and due
to the story editor’s close association with the writer,
“if he [the writer] has a problem, more likely than
not, he will come to me because it is usually a problem
with a producer, or things aren’t working out.” During
the disciplinary trial of one in this group, Coles Trap-
nell, it was indicated that he supervised story analysts
employed by the employer.
_~ =
In all of these functions it is found the story editor
is expected to and does use individual judgment, initia-
tive and responsibility. On the basis of the entire record,
it is found that those persons in the television and
motion picture industries performing the functions of
story editor, story consultant, script consultant, execu-
tive story editors, and executive story consultants are
supervisors and adjust grievances of employees within
the meaning of the Act.’
Of approximately 15 hyphenate-members of Respond-
ent in this position employed by the charging party
in this matter. Respondent charged Robert Blees, Frank
Paris, and Coles Trapnell with violation of Respondent's
strike rules and brought them before a disciplinary
trial board of Respondent.*
4. Other classifications. The General Counsel ar-
gues that hyphenates in other classifications, who re-
ceived Respondent’s strike rules, or were threatened
with charges or were charged with violation of those
rules, or were tried at disciplinary hearings for violation
of those rules, are also supervisors and representatives,
or potential representatives, of their employers for col-
lective bargaining or the adjustment of grievances. The
In "rr Studios, et al, 7 NLRB 662,
at 696, the Board AAA, We, - Writers Guild,
Inc., found = editors in ure industry to
be executives and eee and excluded’ th them from a unit
of writers sought by union.
“It is noted that Respondent made no effort during these
disciplinary hearings to show that these men did any writing
or performed any functions during the strike which were not
my AD yy EE During
7 tenet elton Respondent's Counsel stated, typical
y bby -y > that “i]t is immate-
“fto Respondent's <h "Frapnell what type of
candice won ts ing whither Gay cere welling Gavton
or other services.
23
record indicates that these persons to occupy executive
or management positions. However, my analysis of
the record shows that all of the persons revealed by
the record who were both charged and tried by Re-
spondent for violation of the strike rules are contained
in the classification previously considered, except Jer-
ome Bredouw, and the charges against Bredouw were
dismissed after trial, and, so far as this record shows,
no penalty was assessed against him. In the circum-
stances it would serve no useful purpose to consider
such other classifications in which those hyphenates
are employed.
IV. The Writing Function
Respondent argues, in essence, inter alia, that all
of the above categories normally and regularly engage
in writing within the jurisdiction of the Respondent,
and that it should be inferred, therefore, that those
hyphenate members of Respondent who went to work
during the strike must have engaged in such writing.
This is largely disputed by witnesses for the General
Counsel and defendants at the disciplinary hearings
who testified that they do not in the performance
of their primary function for their employers normally
or regularly perform writing coming within Respond-
ent’s collective-bargaining agreements and specifically
did not do so during the strike. This requires, at
the outset, some consideration of the functions of writers
represented by the Respondent under the various agree-
ments.
Referring to the 1970 Theatrical and Television Basic
Agreement between Respondent and the employer mem-
bers of AMPTP, it is noted that the parties recognized
that members of the Guild could be employed in capaci-
ties other than as writers. It is provided in Article 14,
=~ =
paragraph A, of that Agreement, referring to “writ-
ers in non-writing capacities,” that where such individ-
ual is employed “to render services in a capacity
or capacities other than as a writer,” those “services
shall not be subject to this Basic Agreement.’ It
is further provided that where such an individual is
also employed as a writer (as defined in the agreement),
such services shall be performed under a separate agree-
ment providing for compensation as set forth in the
agreement.
Article 14, paragraph B of that Agreement also
provides, in pertinent part, that “A person employed
as a writer for a series whose duties include for that
series interviewing other writers, suggesting story ideas
or script changes to other writers, or recommending
approval of material submitted by writers, shall be
subject to this Basic Agreement (excluding Executives,
Executive Producers, and Producers; and also excluding
persons who are employed as bona fide Associate Pro-
ducers, who do not perform services as a writer for
the series and where the above duties of such persons
are incidental to their primary duties ).”
The term “writer” as defined in Article 1, paragraph
B.1l.a., and paragraph C.1.a. of that Agreement, in-
cludes, in pertinent part, a person “who performs serv-
ices . . . in writing or preparing . . . literary material
or making revisions, modifications, or changes in such
*Although the heading of Article 14 would indicate that
“television” side of the industry, it is
. Of the Agreement, which defines the
anfiiius
literary material .. . . , provided, however that any
writing services described below performed by Produc-
ers, Directors, Story Supervisors (other than as provided
in Article 14 hereof), . . . , or other employees,
shall not be subject to this Basic Agreement and such
sources shall not constitute such person a writer here-
under: (a) Cutting for time, (b) Bridging material
necessitated by cutting for time, (c) Changes in techni-
cal or stage directions, (d) Assignment of lines to
other existing characters occasioned by cast changes,
(e) Changes necessary to obtain continuity acceptance
or legal clearance, (f) Casual minor adjustments in
dialogue or narration made prior to or during the
period of principal photography, (g) Such changes
in the course of production as are made necessary
by unforeseen contingencies (e.g., the elements, acci-
dents to performers, etc.), (h) Instructions, directions,
or suggestions, whether oral or written, made to writer
regarding story or teleplay.” These latter eight excep-
tions were referred to during the hearing, and will
be referred to herein, as “A to H functions.”
There is no dispute that a person writing an original
story, story outline, treatment, or finished script for
television or motion pictures is performing writing func-
tions within the meaning of the contract between the
Respondent and the various employers. Some persons
who have written such scripts may thereafter, if they
have the capacities, be engaged to produce those scripts
or direct the photoplay made from such a script. In
such cases, such director, or the producer would have
a separate agreement with the employer covering such
sources, in accordance with Respondent’s collective-
bargaining agreement. Some producers and directors
who have the capacity to write may have separate
aafiim
agreements with their employers covering possible writ-
ing assignments even in situations in which the employer
does not actually require them to write.
An issue arises, however, as to what writing is done
on scripts after the writer has delivered a finished
script which has been accepted by the employer, and
who does such writing. Again there seems no question
that numerous changes are made in some scripts prior
to principal photography, during principal photography,
and thereafter before release of the film. Many of
these changes, perhaps most, involve A to H functions,
and may be made by producers or directors or story
editors whether or not they are members of the Re-
spondent. It is indicated that prior to the strike, other
changes of a more substantial nature might be made
in the script when the producer or the director desired.
Such changes would be made by persons qualified
under the applicable contract between Respondent and
the employer.
Respondent argues, however, that even when manage-
ment executives and supervisors perform functions
which have been excluded from the bargaining agree-
ments, such as A though H functions, they are neverthe-
less performing writing functions within the jurisdiction
of Respondent. The argument misses the point. It is
not necessary to decide here what constitutes writing,
or even what different segments of the industry might
consider writing as such. The important point is that
when these executives and supervisors perform those
functions excluded from the Respondent’s bargaining
agreements they thereby perform functions which the
parties have acknowledged do not constitute work re-
served to Respondent’s non-hyphenate members under
the agreements, but rather are accepted as a normal
—_32—
part of the duties and responsibilities of the executives
and supervisors (as hereinabove discussed) employed
by the employers involved.”
V. Strike Related Activities
1. Respondent's strike rules
In February, the Respondent promulgated and dis-
tributed to all its members, including hyphenates oc-
cupying positions discussed above, a list of 31 RULES
FOR CONDUCT OF MEMBERS DURING A
STRIKE. These received considerable publicity in the
local papers and the trade press. Fifteen of these strike
rules relate, in whole or in part, to prohibitions against
writing for struck employers, or the submission of
literary material to such employers (Rules 2, 3, 4,
5, 6, 7, 8, 9, 10, 11, 14, 16, 18, 23, 25). Various
rules with which we are not particularly concerned
here deal with such matters as the use of fictitious
names (Rule 15), acts of agents (Rules 17, 20),
individual negotiations by members (Rule 21), penalties
provided by Respondent’s Constitution and By-Laws
(Rule 29), and enforcement of the rules by committees
(Rule 31). The remaining rules in pertinent part, are
as follows:
1. Amy act or conduct which is prejudicial to
the welfare of the Guild is subject to disciplin-
ary action. Conduct tending to defeat a strike
or in any way weaken its effectiveness is per
ont of the trial it noted
some ‘ nel arg —~y -y is —
cluded fom
12.
13.
19.
22.
24.
anfiien
se conduct prejudicial to the welfare of the
Guild.
All members are prohibited from crossing a
picket line which is established by the Guild
at amy entrance to the premises of a struck
producer.
Members are prohibited from entering the prem-
ises of any struck producer for the purpose
of discussion of the sale of material or contract
of employment, regardless of the time it is
to take effect. Members are also prohibited
from entering the premises of any struck produc-
er for the purpose of viewing any film .. .
should a member find it necessary to visit the
premises of a struck producer for any reason
apart from the foregoing he should inform the
Guild in advance of the nature of such prospec-
tive visit.
A member may not, during the course of a
strike, conduct negotiations with a struck pro-
ducer for financing the production of any of
his literary material or scripts, or for his par-
ticipation in such production in any capacity.
A member is chargeable with knowledge of
all strike rules and regulations, . . . circularized
through the mail to the membership and of
any strike information make known . . . through
. . . trade papers, newspapers, radio broadcasts
or telecasts... .
All members, regardless of the capacity in which
they are working, are bound by all strike rules
and regulations in the same manner and to
the same extent as members who confine their
efforts to writing.
anliGne
26. The term “member” encompasses anyone ad-
mitted to the membership rolls. of the Writers
Guild of America, both West and East, and
classified as either active or inactive, associate,
withdrawn or suspended, whether in good stand-
ing or bad.
27. No member may be relieved of the responsibility
for the payment of any fine, or from any dis-
ciplinary action resulting from any infraction
of strike rules by offering his resignation from
the Guild. Membership in any guild or union
is not a voluntary association of parties but
a binding contract between them which cannot
be abrogated unilaterally by either party except
under provisions of the Guild constitution or
state or federal law. It should be noted that
fines levied for infringement of strike rules are
collectible in a suit at law.
28. The Guild shall have the authority to assign
and direct members in the performance of duties
relating to the strike including, but not limited
to, picket duty. Any member found guilty of
refusal to perform picket duty shall be fined
not less than $100 per day for each day of
such refusal to perform.
30. No member shall work with any individual,
including a writer-executive who has been sus-
pended from Guild membership by reason of
his violation of strike rules, or has been found
by the Council to have violated strike rules,
in the event no disciplinary action was instituted
against such per-on.
By means of meetings and publicity, and through
personal contact, memos, telegrams and letters, Re-
enfin
spondent emphasized and confirmed that these rules
would be enforced against the hyphenate-members.”
The hyphenate-members were particularly vulnerable
to pressure under rule 30 because in their primary
work as producers, directors, story editors, and execu-
tives, they would be unable to effectively function
in the future if writer-members of Respondent refused
to work for or with them. In telephone conversations
with certain of the hyphenates, agents of Respondent
emphasized this consequence should the hyphenate cross
the picket line to work. The wife of one hyphenate-
member was assured that Respondent would end her
husband’s rather distinguished career by not permitting
writers to work with him if he crossed the picket
line. On April 14 during the strike, Respondent issued
a press release, which received wide publicity, con-
cerning the filing of charges against “five writer-
producers”, Jon Epstein, Cy Chermak, Herman Saun-
ders, David Victor and Jack Webb, for “crossing a
picket line for the purpose of going to work for a
struck company.” The release stated that in addition
to other possible penalties, if they were convicted,
these men would, “according to Guild officials”, “appear
on a ‘Roll of Dishonor,” and “be listed in Guild
publications ‘in perpetuity so that Guild members for
years to come will never forget’”. The Guild official
"One such communication was a telephone conversation be-
tween Herbert Wright, a producer, and Alan Griffiths, Assistant
Executive Director of Respondent. During the hearing, Respond-
ent asserted a variance between Wright's testimony and his
affidavit held the General and further requested
that I accept Wright’s affidavit as substantive evidence under
the rule of evidence in California. See Starlite Mfg. Co. 172
NLRB 68, 71-3. The issue is not mentioned in Respondent's
briefs. I have carefully considered Wright’s testimony and his
affidavit, and I credit Wright's testimony as given at the hearing.
Trea Wright’s affidavit as substantive evidence would not
affect made herein.
onlin
assertedly “characterized those members guilty of scab-
bing as ‘pariahs who have betrayed their colleagues.’ ”
After the issuance of the original consolidated com-
plaint in this matter Respondent, on April 30, rescinded
Rule 30, and by letter to all its members, dated May
7, advised:
Old Rule 30 provided that no member shall work
with any individual suspended or disciplined be-
cause of violating strike rules. The Guild’s position
has been, and remains, that it will press disci-
plinary action as vigorously as the law and good
union principles permit, against every member
guilty of violating strike rules. Because the old
rule could be misconstrued to mean that the Guild
was maintaining an improper sanction, a matter
of anathema to this Guild, the Board of Directors
rescinded old Rule 30 at its regular monthly meet-
ing of April 30, 1973. This action was taken
voluntarily, in the belief that ample disciplinary
measures remain available to trial committees, in-
cluding penalties of fines, expulsion from member-
ship and other sanctions, and with the conviction
that even in the pursuit of strike discipline, mem-
bers of the Guild do not wish to be a part of
an action which carries the odious implications
of a “black list.”
2. Pressures on hyphenates by employers and others
As previously noted, the hyphenates here involved
in most cases had personal services agreements with
their employers to perform in their primary capacities
as directors, producers, story editors, and the like.
It would also appear that many were meinbers of
labor organizations representing them in those capaci-
= =
ties, some of which organizations, if not all, apparently
held bargaining contracts with the employers.
Prior to the strike, various employers parties to bar-
gaining contracts with Respondent sent communications
to hyphenates they employed insisting that they come
in to work to perform their regular functions other
than writing in the event of a strike. The following
letter, in pertinent part, from Twentieth Century-Fox
Film Corporation is typical:
We intend to continue our operations and meet
our contractual and moral obligations to supply
theatrical and television motion pictures to our
customers and the public.
If you are a member of the Writers Guild you
may have received from the Guild a set of rules
purporting to govern your conduct during the
strike “regardless of the capacity” in which you
are employed. We also understand that the Guild
may have threatened you with fines and black-
listing in the event it calls a strike and you render
services for us in any capacity or you fail to
report for picket duty. Any attempt of the Guild
to interfere with your services for us in a capacity
other than as a writer is unlawful and the Guild’s
threat of fines, censure, expulsion and blacklisting
is unenforceable.
*_* *
We expect you to fulfill your contractual obliga-
tions to us as a supervisor” and report to work
notwithstanding any picket lines or other attempt
to interfere with your complying with your con-
1 point some employers inserted the specific function,
mm, ‘1, Posten, ots. for which the the individual was
engaged by that employer.
enfin
tractual obligations. We trust that you understand
that we will have no alternative but to resort
to our legal rights and remedies in the event
of a failure on your part to do so. Should the
Guild attempt to fine or otherwise discipline you
for meeting such obligations to us, you will be
provided with a defense to any such proceeding,
without cost to you, and you will be indemnified
against any fine which might be imposed and
which is legally sustained.
Prior to sending these letters, the members of the
AMPTP and the networks had determined that they
would not require the hyphenate-members of Respond-
ent to write during the strike.
In addition to these letters, it appears that the
hyphenates were placed under certain pressure to per-
form by the unions holding contracts with the employers
covering the principal function for which the hyphenate
was employed. Thus, according to a counsel for the
Directors Guild, at the time of the Respondent’s strike,
the Director’s Guild held a no-strike contract with
employers of hyphenates working as directors, assistant
directors, and unit production managers, and felt
obligated to inform its members that if they refused
to render services covered by the bargaining agreement
and the hyphenate’s personal service contracts (other
than writing), they would be subject to suits for large
damages and other penalties.”*
‘This statement was made during the discipli trial of
John Michael Crichton. There are indications action
~ Ad —-- he —E4ty -y Ay A -
union
= =
3. Enforcement of Respondent's strike rules
As has been previously noted, Respondent, by issu-
ance of (ue strike rules, by a meeting with the hyphenate
members prior to the strike, by communications and
publicity, emphasized that it would take disciplinary
action against the hyphenates who went to work during
the strike in any capacity. The hyphenates held meetings
of their own to determine the proper course to follow.
Some hyphenates went to work. The record shows
that a number of the hyphenates (I would assume
most of them, if not all) advised their employers that
they would do no writing, but would only perform
services under their personal services contracts as pro-
ducers, directors, etc., as the case might be. There
is evidence that Respondent was informed of this."*
During the various disciplinary trials of the hyphen-
ates who worked during the strike, Respondent, as
noted above, for the most part professed little or no
interest in what kind of work was done during the
strike, and presented no proof that the work done
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—_— =
by the hyphenates was covered by the recently termi-
nated contracts held by Respondent." The evidence
is that the hyphenates who worked during the strike
performed the normal functions of the primary positions
for which they were employed prior to the strike,
e.g., director, producer, story editor, etc., or in some
other executive position, and exercised the authority
appertaining to such positions.”*
From April 6 through November 8, 1973, Respond-
ent notified more than 30 hyphenate members that
they had been charged with violation of Respondent's
strike rules and set hearings on the charges. The only
rules alleged to have been violated were rules 1, 12,
13 and 28. Most hyphenates were alleged to have
violated rules 1, 12 and 13; some only rules 12 and
13; some rules 1, 12, 13 and 28; some rules 12,
13 and 28, and one only rule 12. Typical of the
language of the charges is the following:
* * *
NOTICE IS HEREBY GIVEN that you are
charged with violation of the Guild’s Strike Orders
and Sections 1, 12, 13, and 28 of the Rules
seit vas sipceted st tho hearing in tile ses es
or t partici in ipli i
instituted by Res t would testify that he took the position
at such hearings that the hyphenates charged “are ject to
discipline for i t’s picket line without regard
o came Oe Se S&S See ies ae aaa os
orming bargaining [unit] services for a em or
not. And that the charges will properly lie for crossing the
picket line even if the charged has given assurances
to a representative of Respondent] that he is not and will
not perform any [writing] services for the struck employer.”
6E.g, Robert A. Cimader, during his disciplinary hearing,
referred to the adjustment of a dispute between a cameraman
and an actor and others; Producer Albert S. R testified
to a lead actor; others asserted their function
— =
for the Conduct of Members during a Strike,
dated February 20, 1973, as amended May 1,
1973, copies of which is attached hereto.
Specifically, you are charged with: (1) having
crossed the Guild’s picket lines at CBS Studio
Center, during the months of March, April, May
and June 1973, without having informed the Guild
in advance of the nature of your business with
said company and without having obtained a Guild
pass to enter said premises; (2) having during
the months of March, April, May and June 1973,
rendered services for Columbia Broadcasting Sys-
tem, Inc., a company against whom the Guild
was at such times on strike; and (3) refusing
to perform picket duties during the strike after
having been requested to do so by representatives
of the Guild.’
* * *
The record contains the transcript of disciplinary
trials of 15 of those charged. The charges against
at least one of these was dismissed. From June 25
through September 28, 1973, Respondent’s Board of
Directors issued the following disciplinary penalties
against 10 hyphenate members, in addition to costs
of the hearing: Two were expelled from membership
and fined $50,000 each; one was expelled from member-
ship and fined $10,000; one was suspended from mem-
bership for 2 years and fined $10,000; one was suspend-
ed for 2 years and fined $7,500; one was suspended
‘Testimony by Respondent's officials in the disciplinary
hearings makes clear that passes would not have been granted
eS 2 ee © pee, Guan, a
the like, even if requested. It is also noted that —
did agree to perform picket duty at some places ing
they were crossing other picket lines, which, understandably,
tended to create some confusion.
antiies
for 3 years and fined $5,000; one was expelled from
membership and fined $2,000; one was expelled and
fined $100; and one was suspended for 2 years and
fined $100."° These penalties received wide publicity
in the local press and trade papers. The appeals of
nine of these men has been voted upon by Respond-
ent’s membership at a special meeting and the penalties
were drastically reduced. Apparently all remaining ac-
tions with respect to discipline of hyphenate-members
for working during the strike are now being held in
abeyance pending resolution of these cases.
VI. The Requests for Arbitration
During the course of the strike, by letter dated
April 28, 1973, Respondent made certain requests for
arbitration upon AMPTP and the Networks, with car-
bon copy to the Board’s Regional Director. The follow-
ing letter to AMPTP sets forth the basis for the re-
quests:
Gentlemen:
Reference is made to the Writers Guild of America
1970 Theatrical and Television Film Basic Agree-
ment (“Agreement”). A dispute exists between
the Guild on the one hand and the Association
its member companies on the other hand concern-
ing the interpretation of the terms of the Agree-
ment and their application and effect with respect
to the effect of the current strike by the Guild
on the employment contracts of its members and
the claimed right of yourself and the companies
'‘*The 10 hyphenates penalized for violation of ‘s
were Hugh Benson, Robert Blees, Cy
Jon a David Levinson, John , Herman Saunders,
David Victor, Robert Cinader and Barry a OS Cee
— =
to complain of the Guild’s enforcement of its
strike rules with respect to all its members, includ-
ing those employed in other capacities. The Guild
submits the following questions to grievance and
arbitration:
1. Whether by virtue of the provisions of said
Agreement, and particularly Article 7, all contracts
of members of the Guild with employer companies
as to whom the Guild is on strike have been
suspended, including the contracts of all members
no matter in what capacities they have been em-
ployed; and
2. Whether by virtue of the provisions of said
Agreement, and particularly Article 7, the defini-
tion of writer, and other provisions, the Association
and the Companies have waived the right to desig-
nate or select members of the Guild as representa-
tives of employers for the purposes of collective
bargaining or the adjustment of grievances and
the right to complain of discipline threatened or
imposed by the Guild on any of its members.
This will constitute a notice of grievance in ac-
cordance with the provisions of the Agreement
with you and your member companies that the
Guild submits the dispute to grievance and arbi-
tration pursuant to the provisions of Articles 10,
11, and 12 of the Agreement. In that connection,
the Guild is willing to waive the grievance step
and proceed directly into arbitration.
By letters dated May 14, and May 18, AMPTP
and the Networks replied denying Respondent's griev-
ance and request for arbitration. The pertinent part
of the AMPTP letter, in substance similar to the Net-
work’s reply, is as follows:
autttius
This is in response to your letter of April 28,
1973, in which you claimed that there is a dispute
between the Guild and the Association and its
member companies concerning the interpretation
and application of the terms of the . . . (“Agree-
ment”) in connection with the current strike of
the Guild.
. * *
In view of the legal nature of the questions raised
by you, and by virtue of the fact that your letter
was obviously an effort to make a record for
purposes of the imminent National Labor Relations
Board proceeding in which a complaint has been
issued against the Guild, your letter was carefully
reviewed by our attorneys.
Your request to arbitrate the foregoing issues is
hereby denied for the following reasons:
1. The Grievance and Arbitration procedure
which you seek to invoke is no longer in effect
between the Guild and the members of the Asso-
ciation as to any matters arising subsequent to
March 5, 1973. By your letter of February 2,
1973, you terminated the collective bargaining
agreement containing these provisions effective
March 4, 1973. Additionally, after we had reached
an impasse by letter of March 27, 1973, we
advised you that effective April 2, 1973, our
member companies intended to effectuate certain
changes in working conditions inciuding that they
would no longer apply the Grievance Arbitration
provisions of the Agreement, except as to matters
arising before March 5, 1973. You were given
an opportunity to bargain about this intended
change but failed to do so and on April 2, 1973,
— =
2. There is no colorable claim that could be
made for the applicability of the Grievance and
Arbitration Procedure of the Agreement to the
two issues raised by you even if such Grievance
and Arbitration Procedure were still available. The
effect of Article 7 upon the status of individual
employment cannot possibly be subject to griev-
ance or arbitration, inasmuch as the status of
such agreements is expressly excluded from griev-
ance and arbitration. There is not a word in
the entire Agreement which would support the
position taken in the second issue which you have
posed. You have heretofore advanced this theory
unsuccessiully to the General Counsel of the Na-
tional Labor Relations Board. You will no doubt
urge it again in the impending hearing on the
complaint issued by the General Counsel.
-_ * *
In Respondent’s answer to the complaint, it raised
three affirmative defenses based upon the above. In
the first two “special defenses,” Respondent asserted,
almost in haec verba, the two positions set forth above,
which would have required the Board to interpret the
agreement, or find the defenses irrelevant. In its original
brief, as previously noted, Respondent has withdrawn
these two defenses. In Respondent's “Third Separate
Special Defense,” Respondent recites the fact that it
has requested the Association and the Networks to
arbitrate the two issues set forth, and concludes: “In
view of the pendency of the above described arbitratior
proceedings, Respondent respectfully requests that the
issues raised in the Second Consolidated Amended Com-
plaint be deferred to arbitration and the Board retain
jurisdiction pending the arbitral decision thereof.”
—_— =
Analysis and Conclusions
Under Section 8(b)(1)(B) of the Act it is an
unfair labor practice for a labor organization “to re-
strain or coerce . . . an employer in the selection
of his representatives for the purposes of collective
bargaining or the adjustment of grievances.” The Board,
in a series of cases, some of which are discussed
in Florida Power & Light Co. v. IBEW Local 641,
supra, has previously held that action by a union
to restrain or coerce the performance of duties by
supervisors who were or might be selected by their
employers for the purposes of collective bargaining
or adjustment of grievances violates that section of the
statute. Thus it has been held that union threats to
discipline supervisors for allegedly violating bargaining
agreements or asserted practices or policies of the union,
charges brought by a union against such supervisors,
trials held, and penalties levied against them for contra-
vening the purposes and directives of the union were
prohibited by this section of the law, on the ground
that such action subverted the loyalties the employer
was entitled to expect from the supervisor in the per-
formance of his functions and deprived the employer
of the supervisor whom the employer had selected—or
potentially might select—to represent the employer for
purposes of collective bargaining or adjustment of
grievances. In the two cases considered by the Supreme
Court in Florida Power & Light, the Board had held
that union discipline of union-member supervisors who
had crossed union picket lines and performed rank
and file struck work during the strikes involved there
thus violated Section 8(b)(1)(B). The Court of Ap-
peals for the District of Columbia, which considered
these cases, disagreed. As stated by the Supreme Court
(slip opinion p. 7, footnotes omitted ):
— =
In a 5-4 decision, the court [of appeals} held that
“[S]ection 8(b)(1)(B) cannot reasonably be read
to prohibit discipline of union members—super-
visors though they be—for performance of rank
and file struck work,” and accordingly refused
to enforce the Board’s Orders. Section 8(b)(1)
(B), the court held, was intended to proscribe
only union efforts to discipline supervisors for
their actions in representing management in collec-
tive bargaining and the adjustment of grievances.
It was the court's view that when a supervisor
forsakes his supervisory role to do work normally
performed by nonsupervisory employees, he no
longer acts as a managerial representative and
hence no longer merits any immunity from disci-
pline” 487 F.2d at 1157. We granted certiorari,
415 US. ..... to consider an important and novel
question of labor law.
The Supreme Court itself affirmed the Court of
Appeals by a vote of 5-4, holding that the legislative
history of the pertinent amendments to the Act made
it clear that in enacting Section 8(b)(1)(B), “Congress
was exclusively concerned with union attempts to dictate
to employers who would represent them in collective
bargaining and grievance adjustment” (slip op. p. 13),
and not with the general problem of the supervisor’s
conflict of loyalty as between his employer and his
union. As the Supreme Court said (slip op. p. 14,
emphasis in original):
Nowhere in the iegislative history is there to be
found any implication that Congress sought to
extend protection to the employer from union
restraint or coercion when engaged in any activity
other than the selection of its representatives for
aniiies
the purposes of collective bargaining and grievance
adjustment. The conclusion is thus inescapable
that a union’s discipline of one of its members
who is a supervisory employee can constitute a
violation of §8(b)(1)(B) only when that disci-
pline may adversely affect the supervisor's conduct
in performing the duties of, and acting in his
capacity as, grievance adjuster or collective bar-
gainer on behalf of the employer.
The Court then noted that in the cases before it
(Florida Power & Light and Illinois Bell) “it is certain
that these supervisors were not engaged in collective
bargaining or grievance adjustment, or in any activities
related thereto, when they crossed union picket lines
during an economic strike to engage in rank and file
struck work.” (Slip op. p. 15)
The Court concluded, “for these reasons, we hold
that the Respondent unions did not violate Section
8(b)(1)(B) of the Act when they disciplined their
supervisor-members for performing rank and file struck
work.” (Slip op. p. 23)
In coming to this conclusion, the Court also noted
that the result was not inequitable, inasmuch as it
derived from the options exercised 1) by the employers
in recognizing the unions as representatives of these
supervisors under the union contracts, and 2) by the
supervisors in becoming and remaining members of
the unions for their own benefit. As to the supervisors,
the Court stated, in pertinent part (Slip op. pp. 21-
22, citations omitted ):
There can be no denying that the supervisors
involved in the present cases found themselves
in something of a dilemma, and were pulled by
entities
conflicting loyalties. But inherent in the option
afforded the employer by Congress, must be the
recognition that supervisors permitted by their em-
ployers to maintain union membership will neces-
sarily incur obligations to the union... . And,
while both the employer and the union may have
conflicting but nonetheless legitimate expectations
of loyalty from supervisor-members during a strike,
the fact that the supervisor will in some measure
be the beneficiary of any advantages secured by
the union through the strike makes it inherently
inequitable that he be allowed to function as a
strikebreaker without incurring union sanctions.
The supervisor-member is of course not bound
to retain his union membership absent a union
security clause, and if, for whatever reason, he
chooses to resign from the union, thereby relin-
quishing his union benefits, he could no longer
be disciplined by the union for working during
a strike. ...
In these cases, the supervisors’ dilemma has been
somewhat exaggerated . . . in /ilinois Bell, the
company did not command its supervisors to work
during the strike and expressly left the decision
to each individual. Those who chose not to work
were not penalized, and some were in fact pro-
moted by their employer after the strike had end-
ed. Those who did work during the strike but
performed only their regular duties were not dis-
ciplined by the union. In Florida Power, the record
does not disclose whether the supervisors crossed
the picket lines at the company’s request or not,
but in any event, the union did not discipline
those who did so only to perform their normal
supervisory functions.
—s50—
Similarly, in N.L.R.B. v. San Francisco Typographi-
cal Union No. 21, etc. (California Newspapers, Inc.)
486 F.2d 1347 (also relied upon by Respondent),
where the Board had found the union there involved
had violated Section 8(b)(1)(B) by disciplining super-
visor-members for crossing the union’s picket lines,
the Court held that “the Board’s broad inierpretation
of Section 8(b)(1)(B) . . . is an unjustifiea extension
of the limited language of Section 8(b)(1)(B). Had
the members elected to resign from the union, the
power of the Union over them would have ended.
[Citation omitted] But here the members remained
in the Union, and therefore continued to be subject
to their obligations as members.” The Court also noted
that although those disciplined were supervisors, “the
Union did not punish them for exercising any manage-
ment duty.” (486 F.2d at 1349-50)
Compare Scofield v. N.L.R.B., 394 U.S. 423, where,
in the course of holding that Section 8(b)(1)(A)
did not proscribe a union’s enforcement of productivity
ceilings through the discipline of members, the Supreme
Court stated (at p. 430), “. . . Section 8(b)(1)
leaves a union free to enforce a properly adopted
rule which reflects a legitimate interest, impairs no
policy Congress has imbedded in the labor laws, and
is reasonably enforced against union members who
are free to leave the union and escape the rule.”
(Emphasis added. )
In this case we are concerned with certain supervis-
ory, executive, and managerial personnel (referred to
as hyphenates) principally employed to perform func-
tions not covered by Respondent’s collective-bargaining
agreements (which agreements provide for the condi-
tions of employment and the recompense of writers
anim
who furnish certain writing services to the television
and theatrical industries), but who are nevertheless
members of Respondent and who on occasion may
do work properly falling within the terms of those
bargaining agreements. The case involves the attempts
of Respondent to coerce and restrain those hyphenates
from going to work in any capacity during the course
of a strike by Respondent against the hyphenates’ em-
ployers over the terms for renewal of Respondent's
bargaining agreements. Respondent promulgated and
distributed strike rules to all its members forbidding
the members to go to work in any capacity during
the strike. These received wide publicity. These were
further enforced by personal and written communica-
tions, and at Respondent's meetings with the hyphen-
ates, to impress upon them that the strike rules applied
to the hyphenates and would be enforced against them."
axfiiicen
contracts with their employers. Prior to the strike the
hyphenates were informed by their employers that they
would be expected to fulfill their contracts and come
in to perform their normal work during the strike.
In some cases, perhaps most, these primary functions
were also covered by collective-bargaining agreements
with other labor organizations requiring that the hy-
phenates not engage in strikes. At least one or two
such unions directed their hyphenate members to per-
form during the strike in accordance with that union’s
contract.
It is clear, as has been found, that the normal
performance of the hyphenates’ primary functions in-
volves the adjustment of employee grievances, and,
in the case of producers on distant location, to engage
in collective bargaining with labor organizations. Those
hyphenates charged by Respondent with violation of
its strike rules, who testified in this hearing or before
Respondent's trial boards denied performing any writing
function during the strike other than that which had
been commonly agreed in the past to be permissible
for hyphenates performing supervisory and managerial
functions. Indeed, the employers had determined in
advance not to require writing of the hyphenates who
worked during the strike. Evidence was offered to
Respondent by certain hyphenates to substantiate the
fact that those hyphenates, though working during the
strike, nevertheless did no writing. Respondent, indeed,
points to no instance of any hyphenate doing any
“rank and file” work during the strike. In its original
brief, Respondent stated its position as follows, in
pertinent part (Orig. brief pp. 11-12, emphasis in origi-
nal):
_ . . we believe that the record here supports
an inference that hyphenate Guild members who
—53—
crossed picket lines necessarily performed services
of a non-supervisory character which bring them
within [the Court of Appeals’ decisions in /Ilinois
Bell and California Newpapers}.
. . . Virtually all of the hyphenate writers called
as witnesses by General Counsel conceded that
they performed only (a) through (h) writing func-
tions which, upon their view, were not strike de-
feating because such services were outside the
coverage of the Guild contract. . . .
. . » Rather, it is our contention that such writing
falls within the prohibitions of [Respondent's strike
rules} and that the scope of such rules was
The permissible scope of the strike rules, as to
hyphenates, can only be judged fairly in connection
with the production activities of the struck em-
ployers which the Guild had the right to frustrate
. the most critical service of the producers
the finding and participation in the hiring o
writers . . . while this is a statutory supervisional
function, ‘nevertheless, in a strike situation the
performance of this non-writing function requires
the producer to be the active recruiter of strike-
breaking writers. The average foreman union
member in an industrial plant is not in a strike
situation, normally called upon to act as the prin-
cipal recruiter of strike breakers.
In order to perform under his producer contract,
the hyphenate Guild member necessarily must
place himself directly in direct opposition to the
Strike strategy of the Guild and, at the same
time, be free from the normal discipline imposed
upon strike-breakers. The matter of disloyalty
anion
arises from the continued performance of the hiring
function itself.”
These arguments, however, do not meet the issue.
The fact is that, according to the record, such writing
as the hyphenates did during the strike was limited
to that commonly accepted in the industry as part of
the managerial and supervisory function and thus was
not rank and file work. I so find. Indeed, although
a number of Respondent’s strike rules forbade writing
for struck employers, none of the hyphenates was
charged with violating those rules. It was stipulated
that Respondent's counsel, during the disciplinary hear-
ings, was not concerned with what work the hyphenates
did when working during the strike.
In its supplementary brief, Respondent argues that
it would be difficult to determine in these cases what
the supervisors did after they went to work during
a strike, for the supervisors and employers would not
likely cooperate. However, in the one instance in which
Respondent’s trial panel is shown to have requested
evidence, it was supplied by the employer. In another
instance the hyphenate supplied evidence voluntarily,
without request. In one of the disciplinary trials there
was testimony by a union member that when he returned
to work after the strike, he found no writing that
had been done by a hyphenate (with whom the member
was closely associated) who had worked during the
strike, the union member stating that he was satisfied
that some writing had been done by an executive
who was not a member of Respondent. From this
In its su tary brief, Respondent states that while
it considers “record as a whole” supports a finding that
“rank and file” work was done, its position is that Florida
Power makes the finding “irrelevant” (Supp. brief p. 5)
—55—
it seems clear that if hyphenates working during the
strike had performed rank and file work, Respondent
had means for discovering it.
Though the evidence is sparse, the record indicates
that during the strike, where the situation arose, the
hyphenates dealt with grievances of employees who
worked during the strike, or, in any event, were
available to deal with such matters in their normal
capacities when and if such grievances arose.
Further, it has long been established that an employer
may legally employ replacements for striking employees
during a strike (in union terminology “strikebreakers” )
see N.L.R.B. v. Mackay Radio & Telegraph Co., 304
U.S. 333, 345. Thus action by managerial or super-
visory employees in recruiting employees during a strike
would manifestly fall within the normal functions of
such persons. There is no evidence of which I am
aware that any hyphenate performing as a producer
during the strike (as argued by Respondent) recruited
or hired a writer during the strike—for the most part
the evidence is that such producers were involved with
scripts already written and ready for production—but
if any such writer was recruited or hired by a producer,
this was clearly a proper managerial or supervisory
function.
Nor is it material, in the circumstances of this
case, that by going in to work at managerial and
supervisory functions during the strike, hyphenate-mem-
bers frustrated Respondent's strike strategy, or provided
the employers with more economic clout than they
otherwise might have possessed. Respondent cannot
deny the hyphenates the right to resign from member-
ship, and thus be free of the obligations of membership,
while at the same time argue that because the hyphen-
—56—
ates continued to be members they cannot be “free
from the normal discipline imposed upon strike break-
ers.” It was well known among the hyphenates that
Respondent would not permit them to resign prior
to or during the strike. At least one hyphenate’s attempt
to resign from membership in Respondent during this
period was rejected. It is, of course, not known how
many hyphenates would have resigned if this had been
an option available to them. It is inferred that at
least those who went back to work during the strike
would have done so, and possibly others. The rights
of the hyphenates and their employers are not reduced
because the exercise of those rights might make Re-
spondent’s position more difficult.
The results of the strike would be of only problemati-
cal benefit to many of the hyphenates involved. Re-
spondent’s contracts did not cover the hyphenates’ man-
agerial and supervisory functions (as was the situation
in Florida Power) and would have benefited the hy-
phenates only if they engaged in writing covered by
the bargaining agreements. There was testimony from
a number of hyphenates that they had done no substan-
tial writing of such character for a considerable number
of years. There is little indication that the hyphenates
received other substantial benefits from their member-
ship in Respondent, except that derived from being
part of the writing community which provided signifi-
cant contacts with writer-members of Respondent, a
sense of pride in belonging to the organization, and,
perhaps most important, providing the hyphenate with
a wider range of capabilities and thus enhancing his
usefulness to his employer.
It has been previously found that those hyphenates
occupying the positions of Executive Producers, Pro-
to adjust grievances, and, in the case of the producer
meaning of Section 8(b)(1)(B) of
basis of the above discussion and
as a whole it is found that by issuing
designed to compel such hyphenates from
work during the strike called by Respondent,
meetings, personal contacts, telegrams, and
designed to restrain and coerce such hy-
from going to work during the strike, Respond-
ent restrained and coerced the hyphenates from perform-
ing managerial and supervisory services for their em-
ployers during the strike, including the adjustment of
employee grievances and participation in collective bar-
gaining, and thus coerced and restrained those em-
ployers in the selection of representatives for collective
a
i
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cree
re
f
bargaining as required, and did not perform rank and
file work; and that by charging, trying, and disciplining
such hyphenates who worked during the strike in such
circumstances, Respondent further coerced and re-
strained the employers in the selection of their rep-
resentatives for the purposes of collective bargaining
within the meaning of Section 8(b)(1)(B) of the
Act. It is therefore found that Respondent, by the
—_— =
activities set forth above, violated Section 8(b)(1)(B)
of the Act.
In coming to this conclusion, I have given careful
consideration to Respondent's contention that the Su-
preme Court in Florida Power, not only disapproved
of the Board’s finding that a violation of Section 8(b)
(1)(B) had occurred in those cases, but, by completely
overturning the Board's rationale in those cases, in
effect held that coercion, restraint and discipline of
supervisor-members by a labor organization for working
during a strike cannot be held by the Board to vio-
late the Act. I disagree. It is clear that Respondent's
action in this case violated the plain meaning of the
statute without the necessity of resort to statutory exege-
sis. To illustrate: A person performing the function
of a director acts in a managerial or supervisory capac-
ity, which normally includes the adjustment of griev-
ances of actors, actresses, craft employees and others.
One occupying the position of a producer normally
has a similar capacity and similar duties with respect
to employee grievances. In addition, if the film is
being shot on distant location the producer has author-
ity to negotiate on the spot agreements with local
unions. Thus when Respondent prevented or sought
to prevent, such hyphenate members from going to
work in their managerial and supervisory capacities
as producers and directors during the strike, Respondent
obviously coerced and restrained their employers in
the selection of those specific producers and directors
for the purpose of collective bargaining and the adjust-
ment of grievances of employees working during the
strike within the plain meaning of the statute. Similar-
ly, those persons employed as story editors or in like
classifications perform executive functions normally,
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determine these matters in this case. The General Coun-
sel did not allege this matter as a violation of the
Act in his complaint, nor put it properly in issue
during the hearing. In the circumstances, I do not
pass upon the issue.
Lastly, I have carefully considered Respondent’s con-
tention that certain issues should be referred to arbitra-
tion and the complaint in this proceeding be dismissed.
I have determined that this contention should be denied
Respondent's right to strike when it did. Respondent,
indeed, does not claim that there were any contractual
provisions which forbade or approved of such actions.
It does claim that there was a contractual provision
which would have protected the hyphenaies if they
desired to respect Respondent’s picket line.” The em-
ployers, on their part, refer to provisions of the agree-
ments in support of their contentions that the agree-
be py MY |
deemed automatically as to service
and ion, where such is in effect, and each
such member of [ ] shall incur no liability for breach
of his respective contract by respecting such strike
— =
ments do not cover or apply to the functions performed
by the hyphenates, and further that these provisions
of Article 7 are specifically exempted from arbitration.
There is no need to consider the merits of these con-
tentions. We are not here concerned with whether
there was agreement that these hyphenate-members of
Respondent could respect Respondent’s picket lines or
its strike call with impunity from action by the employ-
ers, but we are concerned with whether the Respondent
may legally restrain and coerce the hyphenate-members
from going to work, at the insistence of their employers,
to perform functions not covered by Respondent’s con-
tracts, and whether Respondent may discipline such
members for going to work in such circumstances.
No contractual basis appears and Respondent points
to none which would authorize an arbitrator to pass
on such issues.”
Assuming, without deciding, that the employers had
agreed to absolve Respondent's hyphenate-members of
all liability for breach of their personal services con-
tracts (which, as noted, the employers vigorously dis-
pute), it does not follow, as Respondent argues, that
the employers thereby agreed not tc ask, direct, or
insist that such members come in to work, or agreed
that the employers would not select such members
as their representatives for adjustment of grievances
or collective bargaining, or that the employers agreed
“Cf. Houston Mailers Union No. 36, etc. (Houston Chron-
icle), 199 NLRB No. 36, relied upon by Respondent, in
which the Board held that where the em Leo =
there involved r- hig = agreed in their bargaining
“shall not discipline ithe foreman,” a
tones before the Board concerned discipline
pA, 4 union, Ve dag 4. - ang de. arbitration
accordance with
the bargaining agreement of the
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afiiies
that Respondent could restrain or coerce the members
not to work, or, if the members did come into work
at the employers’ insistence, that Respondent could
discipline the members for doing so.
2. There is substantial doubt that Respondent’s ac-
tions which are the basis for the complaint in this
matter are subject to arbitration in any event. Almost
all of Respondent’s conduct with which we are here
concerned, including the charges against the hyphenates,
the disciplinary trials and the penalties imposed, oc-
curred after the termination of the bargaining agree-
ments and at a time when neither Respondent nor
the employers had consented to arbitration of their
actions. |
3. The legal issues involved in this proceeding are
matters of importance to the administration of the
Act, as shown by the Supreme Court’s recent decision
in Florida Power. The application of the principles
laid down in that decision and the development of
the law in this area should be made by the Board
in an unified and consistent fashion, and not delegated
to the diverse opinions of various arbitrators who have
neither been selected to administer the Act nor sworn
to do so. This matter is highly complex and involves
many factual and legal issues having little or no relation
to contractual questions. The parties have spent much
time litigating these issues and at considerable expense.
It would seem to me an act of administrative abnega-
tion of duty to tell the parties to start over again
before another tribunal when the proceeding has already
been tried before the agency appointed by Congress
to hear and decide the issues.
—_ =
Conclusions of Law
1. The employer members of the Association of
Motion Picture and Television Producers, Inc., Amer-
ican Broadcasting Companies, Inc., Columbia Broad-
casting System Inc., National Broadcasting Company,
Inc., and QM Productions (herein collectively referred
to as “the employers”) are, and each of them is,
an employer engaged in commerce within the meaning
of Sections 2(6) and (7) of the Act.
2. Writers Guild of America, West, Inc. (“the Re-
spondent”) is a labor organization within the meaning
of Section 2(5) of the Act.
3. By restraining and coercing the employers of
hyphenate-members of the Respondent, and each of
the employers, in the selection of their representatives
for the purpose of collective bargaining or the adjust-
ment of grievances, as found hereinabove, the Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(B)
of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Sections 2(6) and (7)
of the Act.
The Remedy
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(b)(1)(B)
of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The record is convincing that Respondent, well aware
of the primary supervisory, management, and executive
functions of its hyphenate-members, drafted its strike
—
rules and enforced them with the intent of compelling
those hyphenate-members from going to work during
the strike, without regard to the capacity in which
they performed or the work done. In particular, by
threatening to blacklist in perpetuity such hyphenates
who worked during the strike, the rules threatened
to drive those hyphenates out of the industry. Though
the mandatory effect of the rule was rescinded (see
Resp. Exh. 11), there are other indications that Re-
spondent’s actions encourage a voluntary blacklist.
Thus, in its letter to members explaining their options
on appeals from penalties imposed upon certain hyphen-
ates who worked, Respondent stated, inter alia, “There
is obviously a stigma attached to explusion which might
cause individual members of the [Respondent] to re-
frain from working for such a person. The Guild itself
cannot order its members to refrain from working
with an individual merely because he was expelled.”
(Resp. Exh. 12) In at least one instance, in the dis-
ciplinary transcript relating to Robert Blees, a writer-
member of Respondent expressed his intent not to
work with Blees because the latter had worked during
the strike, though the writer-member acknowledged that
he was under no compulsion from Respondent to take
that position. I fully realize that this member as well
as others might have adopted this position even if
Respondent had not suggested it by its rule and
other communications and publicity. However, the fact
is that Respondent did suggest it, and it is now impos-
sible to disentangle the consequences flowing from its
actions. I shall recommend a broad order in order
to restore the status quo and remedy the various effects
of Respondent's actions found to have violated the
Act.
= =
The General Counsel and the Charging Parties have
requested a number of particular remedies, some of
which I find appropriate in the circumstances and
have included in the following order. It is requested
that the fines, suspensions, and expulsions from mem-
bership of the hyphenates be rescinded and revoked.
In the ordinary case I would be loath to hold that
a union may not suspend or expel a member who
worked during a legal strike. However, here, where
the hyphenates have been forced to undergo the stigma
of suspension or explusion by Respondent’s deliberate
action in refusing them a free choice to withdraw
in a normal manner prior to working during the strike,
and where Respondent has further suggested that mem-
bers not work with hyphenates who were expelled,
I am convinced that the effects of Respondent's actions
can best be remedied by restoration of the status quo
ante. It is also noted that in the four cases in which
appeals were perfected, Respondent's membership re-
jected the penalties of suspension or expulsion. Inas-
much as the record is incomplete as to the status
of the other hyphenates charged, I shall recommend
the normal remedial order as to all, without distinction
between those whose suspension or expulsion has al-
ready been revoked and those for whom it has not.
It is also requested that Respondent be ordered to
mail a copy of the notice to each of its members
and to publish the notice in the local trade papers,
“Hollywood Reporter” and “Daily Variety”, as well
as in local papers of general circulation. The record
shows that Respondent was careful to mail its strike
rules, directions, orders and instructions to all its mem-
bers in order to give those actions wide and personal
service; and further that the matter of compuision
~~
of the hyphenate-members to abide by Respondent's
rules and the trials of those members and the penalties
imposed upon them was given wide publicity in the
trade papers and the local press through press releases
and other information supplied by Respondent and
its officers. The request that equal publicity be given
to the Board’s notice is clearly justified. However,
I believe that this can be accomplished through requir-
ing Respondent to publish the Board’s notice in the
two trade papers for one week (six consecutive issues).
I do not think that it is necessary that the notice
be published by Respondent in the local press, or
that the publication in the trade papers be for three
consecutive weeks as requested. I further do not agree,
as has been requested, that there is any necessity that
the notice be read at Respondent’s membership meet-
ings, in addition to the normal posting of the notice,
and the mailing and publication just considered.
There is a further request that Respondent be ordered
to reimburse those hyphenates who were brought to
trial for violating Respondent’s strike rules for the
reasonable expenses of defending their conduct in
their trials. A persuasive argument can be made on
the point. There is no question but that Respondent
deliberately used the difficult position of the hyphenates
in a power play against the employers. However, the
hyphenates are not entirely without responsibility in
the result; for whatever their reasons, they had main-
tained membership in Respondent until the very last
minute. There is also no evidence that Respondent
did not sincerely believe that it had the right to do
as it did. While sincerity does not excuse violation
of the law, it has weight in considering an unusual
remedy such as that requested. I do not believe that
this remedy is justified in these circumstances.
—_— =
Upon the foregoing findings of fact, conclusions of
law and the entire record, I issue the following recom-
mended:*”
ORDER
Writers Guild of America, West, Inc., the Respondent
herein, its officers, agents and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing any employer in the
selection of its representatives for the purpose of collec-
tive bargining or the adjustment of grievances:
(1) by issuing rules, order, directions or instructions
_ =
from performing supervisory, executive, or managerial
functions, or
(4) by fining or otherwise disciplining such em-
ployer representatives for performing supervisory, execu-
tive, or managerial functions, or
(5) by enforcing in any other manner any such
rule, order, direction, or instruction.
(b) In any like or related manner restraining or
coercing any employer in the selection of representatives
for the purpose of collective bargaining or the adjust-
ment of grievances.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Revoke, rescind, and expunge from Respond-
ent’s records, the fines, suspensions, or expulsions from
membership, or other disciplinary action, or penalty
imposed upon Hugh Benson, Robert Blees, Cy Cher-
mack, Jon Epstein, David Levinson, John T. Mantley,
Herman S. Saunders, David Victor, Robert A. Cinader,
Barry Crane, or upon any other employer representative
as described in paragraph 1.(a)(1) above, for working
during the strike beginning on or about March 4,
1973, as a supervisor, executive, or in a managerial
capacity.
(b) Reimburse Hugh Benson, Robert Blees, Cy
Chermack, Jon Epstein, David Levinson, John T. Mant-
ley, Herman S. Saunders, David Victor, Robert A.
Cinader, and Barry Crane, and any other employer
representative as described in paragraph 2(a) above,
for the fines levied against them, with interest thereon
at 6 percent per annum.
(c) Advise Hugh Benson, Robert Blees, Cy Cher-
mack, Jon Epstein, David Levinson, John T. Mantley,
a
Herman S. Saunders, David Victor, Robert A. Cinader,
and Barry Crane, and any other employer representative
as described above, in writing, that any fines levied
against them, and any action suspending or expelling
them from membership in the Respondent, or any
other penalty imposed upon them for working during
the said strike, has been revoked and rescinded, and
that such fines and suspensions or expulsions, or other
penalties have been expunged from Respondent's rec-
ords.
(d) Post at its office and meeting halls copies of
the notice attached, marked “Appendix.”” Copies of
said notice, on forms provided by the Regional Director
for Region 31, after being signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Mail a signed copy of the attached notice
marked “Appendix” to all Respondent's members to
whom Respondent’s strike rules dated February 20,
1973, were mailed.
(f) Publish the attached notice marked “Appendix”
for one week (6 consecutive issues) in “Hollywood
Reporter” and “Daily Variety,” immediately after post-
eee fn Se, Go Eoee Gude & cated by 0
aoe & the words
“POSTED BY OF THE NA-
TIONAL LABOR ATIONS BOARD” shall be
to read “POSTED PURSUANT TO A JUDGMENT OF
UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS
BOARD.”
= =
(g) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of the receipt
of this Decision, what steps have been taken te comply
herewith
Dated at Washington, D.C.
/s/ Sidney J. Barban
Sidney J. Barban
Administrative Law Judge
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE
UNITED STATES GOVERNMENT
WE WILL NOT restrain or coerce any employer in
the selection of representatives for the purpose of cOljec-
tive bargaining or the adjustment of grievances
(a) by ordering, directing, or instructing any such
representative not to perform supervisory, ¢Xecu-
tive or managerial functions for an employer, Or
(b) by threatening any such representative with
fines, suspension or expulsion from membership,
blacklisting, or any other penalty for performing
supervisory, executive or managerial functions, or
(c) by charging, trying, or penalizing any such
representative for working as a supervisor, ¢xecu-
tive, or in a managerial position.
WE WILL NOT in any like or related manner restrain
or coerce any employer in the selection of representa-
tives for the purpose of collective bargaining Or the
adjustment of grievances.
WE WILL rescind and revoke, and expunge from
our records any fine, suspension or expulsion from
—7 j|—
membership or any other penalties to the extent previ-
ously imposed on the following persons or on any
other representative of an employer for the purpose
of collective bargaining or the adjustment of grievances
who worked as a supervisor, executive, or in a mana-
gerial position during the strike which began on or
about March 4, 1973:
Hugh Benson
Robert Blees
Cy Chermack
Robert A. Cinader
Barry Crane
Jon Epstein
David Levinson
John T. Mantley
Herman S. Saunders
David Victor
WE WILL reimburse the persons named and described
above for any fines imposed upon them for working
during the strike which began on or about March
4, 1973, with interest thereon at 6 percent per annum.
WRITERS GUILD OF AMERICA, WEST,
INC.
(Labor Organization )
(Representative ) (Title)
Order Correcting Record.
United States of America, before the Nationai Labor
Relations Board, Division of Judges, Washington, D.C.
Writers Guild of America, West, Inc. and Associa-
tion of Motion Picture and Television Producers, Inc.
Case No, 31-CB-1203-2.
—72—
Writers Guild of America West, Inc. and American
Broadcasting Companies, Inc., Columbia Broadcasting
System, Inc., National Broadcasting Company, Inc. Case
No. 31-CB-1223.
Writers Guild of America, West, Inc. and Association
of Motion Picture and Television Producers, Inc. Case
No. 31-CB-1316.
Writers Guild of America, West, Inc. and American
System, Inc., National Broadcasting Company, Inc. Case
No. 31-CB-1313.
Writers Guild of America, West, Inc. and QM Pro-
ductions. Case No. 31-CB-1355.
Upon consideration of the entire record in this matter,
it is ordered that the following corrections be made
in the transcript of testimony in this proceeding:
Page Line Correction
365 22 Change “closed” to “close”
367 2 Change “supposed” to “dis
posed”
554 18 Take out “CROSS”
674 16 Change “threat” to “thread”
734 at end of line 4 Insert “(The document above
referred to marked General
Counsel's Exhibit no. 3 was
received into evidence)”
753.—CsdI1 Insert “dais” before “upon”
773 20 Change “defect” to “effect”
939 atendofline 10 Insert “(The document above
referred to marked Associa-
1120
1120
into evidence)”
24 Change “wake” to “weight”
19 Change “tree (?) production”
to “preproduction”
3 Change “ranking” to “writing”
13 Change “question” to “series”
/s/ Sidney J. Barban
Sidney J. Barban
United States Court of Appeals for the District of
Columbia Circuit.
September Term, 1975.
Chicago Typographical Union, No. 16, Petitioner
v. National Labor Relations Board, Respondent, Ham-
mond Publishers, Inc., Intervenor. No. 75-1320.
PETITION FOR REVIEW AND CROSS APPLI-
CATION FOR ENFORCEMENT OF AN ORDER
OF THE NATIONAL LABOR’ RELATIONS
BOARD.
Before: MCGOWAN, ROBINSON and WILKEY, Cir-
cuit Judges
This cause came on for consideration on a petition
for review and cross-application for enforcement of
an order of the National Labor Relations Board and
briefs were filed by the parties. While the issues pre-
sented occasion no need for an opinion, they have
been accorded full consideration by the Court. See
Local Rule 13(c). On consideration of the foregoing,
it is
ORDERED AND ADJUDGED by this Court that
the order of the National Labor Relations Board on
review herein is hereby affirmed, on the basis of the
Board’s opinion in this case, reported at 216 NLRB
No. 149, 88 LLRM 1378.
Per Curiam
For the Court
/s/ George A. Fisher
George A. Fisher
Clerk
Filed June 23, 1976.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.