Petition — National Labor Relations Board v. Writer's Guild of America, West, Inc.
Supreme Court brief1977
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No 761162
In the Supreme Court of the Gpited States
Octrosper Term, 1976
National LABOR Re.ations Boarp,
V.
Writers GUILD OF AMERICA,
INCORPORATED, et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
Dante M. FrrepMan,
Acting Solicitor General,
Department of Justice,
Washington, D.C. 20530.
Joun S. Iavrva,
General Counsel,
Joun E. Hiaars, J R.,
Deputy General Counsel,
Cart L. Tayior,
Associate General Counsel,
Norton J. Coux,
Deputy Associate General Counsel,
Joun G. ELLiIcurs,
Attorney,
National Labor Relations Board,
Washington, D.C. 20570.
INDEX
Page
in. . . Sauenteses 1
a it eesbka bes 1
e ess esse 2
r . . . 2
r rr. bee 3
Reasons for granting the writ .................. 5
] ete ee i . eee 12
r ˙ .. eee la
r vieeedabacuebeebeseeendaewennnsy 8a
eee 10a
CITATIONS K
Cases:
Bakery and Confectionery Workers, Locals 24 &
119 (Food Employers Council, Inc.), 216
r ˙ . 7
Chicago Typographical Union No. 16 (Ham-
mond Publishers, Inc.), 216 NLRB903 ...... 5,7
Chicago Typographical Union No. 16 v. National
Labor Relations Board, 539 F. 2d 242, petition
for a writ of certiorari pending, No. 76-688 .. 7
Detroit Newspaper Printing Pressmen’s Union,
Local Union No. 13 (Observer Newspapers,
e A So nae 7
Florida Power d Light Co. v. International
Brotherhood of Electrical Workers, Local 641,
r ald ta 5, 8, 9, 10, 11
Glaziers and Glassworkers Local No. 1621 (Glass
Management Assn.), 221 NLRB 509 „ — 7
Local Union No. 1959, United Brotherhood of
Carpenters (Aurora Modular Industries), 217
NLRB 508
Page
Cases (continued):
Meat and Provision Drivers Union Local 626,
J. B. T. (Food Employers Council), 224 NLRB
No. 40, application for enforcement pending,
,,, ̃ A t 7-8
New York Typographical Union No. 6 (Daily
Racing Form), 216 NLRB G 5
Newspapers Guild, Local 187 (Times Publish-
X Es « ccccaucdbaceace ys 7
San Francisco-Oakland Mailers’ Union No. 18
(Northwest Publications, Inc.), 172 NLRB
1 Ree Ee Ray Sa Oe Pee eee eae 8
United Brotherhood of Carpenters, Local Union
No. 14 (Kaplan Properties), 217 NLRB 202 7
Warehouse Union Local 6 (Associated Food
Stores, Inc.), 220 NLRB 809 ............... 7
Wisconsin River Valley District Council v. Na-
tional Labor Relations Board, 532 F. 2d 47 .. 6,11
Statute :
National Labor Relations Act, as amended (61
Stat. 136, 73 Stat. 519, 29 U.S.C. 151, et seg.) 2
Section 2(3), 29 U.S. C. 152(3) ............ 2
Section 2(11), 29 U.S. C. 152(11) ........... 2,3
Section 8(b) (1) (B), 29 U.S.C. 158(b) (1) (B)
In the Supreme Court of the United States
OctTosBerR TERM, 1976
No.
NatronaL LABOR RELATIONS Boarp, PETITIONER
V.
Waiters Gun or AMERICA, WEsT,
INCORPORATED, et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
The Solicitor General, on behalf of the National
Labor Relations Board, petitions for a writ of cer-
tiorari to review the judgment of the United States
Court of Appeals for the Second Cireuit in this case.’
OPINIONS BELOW
The opinion of the court of appeals (App. la—7a)" is
not yet officially reported. The decision and order of
the National Labor Relations Board (App. 10a-l4a)
is reported at 217 NLRB 957.
JURISDICTION
The judgment of the court of appeals (App. 8a—9a)
* American Broadcasting Companies v. Writers Guild of America,
West, Inc., No. 76-1121, petition for certiorari filed February 14,
1977, seeks review of the same judgment.
App. refers to the appendix to this petition.
(1)
was entered on November 22, 1976. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether a union violates Section 8(b)(1)(B)
of the National Labor Relations Act by threatening to
discipline and disciplining supervisor-members, who
represent management in grievance adjustment or col-
lective bargaining, for crossing union picket lines to
perform supervisory functions during a strike.
STATUTE INVOLVED
The relevant provisions of the National Labor Rela-
tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S.C. 151, et seq.) are as follows:
Sec. 2. When used in this Act—
* * * * *
(3) The term employee“ shall include any em-
ployee, * * * but shall not include * * * any indi-
vidual employed as a supervisor * * *.
(11) The term ‘supervisor’? means any indi-
vidual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recom-
mend such action, if in connection with the fore-
going the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Sec. 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 ;
STATEMENT
1. For several years Writers Guild of America, West,
Incorporated (‘‘the Union“), has represented film
writers employed by the major television networks and
various other film producers (the Employers"’) ( App.
20a). Some Union members—referred to in the trade
as ‘“hyphenates’’—are employed primarily in non-
writing positions such as story editor, director, pro-
ducer, or production executive (App. 21a—22a). When
employed in their non-writing capacities, hyphenates
are supervisors as defined in Section 2(11) of the Act
and represent the Employers for purposes of grievance
adjustment within the meaning of Section 8(b)(1)(B)
of the Act (App. 12a, 25 -a, 62a).
In March 1973, the Union began an economic strike
against the Employers (App. 21a). Immediately prior
to the strike, the Union distributed strike rules to all
Union members, ineluding hyphenates (ibid.). In addi-
tion to prohibiting writing for struck employers, the
rules prohibited the crossing of Union picket lines by
all members even when working in a non-writing
When working as producers, hyphenates also engage in collec-
tive bargaining on behalf of the Employers (App. 26a).
6
capacity, warned that violations would be sub) t to
disciplinary action, and prohibited Union members
from working in the future with disciplined members
(App. 35a-38a). Prior to the strike, the Union also
called a special meeting of hyphenate members at which
where Union official announced that the strike rules
would apply to hyphenates working in any capacity
(App. 38a, 42a—43a). Other Union officials telephoned
hyphenates before and during the strike to warn that
they would be disciplined and blacklisted if they worked
during the strike (App. 38a—39a).
The Employers demanded that hyphenates perform
their non-writing functions during the strike, but did
not ask hyphenates to write (App. 40a—42a). Many hy-
phenates crossed Union picket lines to perform their
non-writing functions; they did not, however, do any
rank-and-file writing (App. 57a—60a).
The strike continued against some Employers until
July 1973 (App. 21a). During and after the strike the
Union filed charges against 31 hyphenates alleging that
they had violated strike rules by crossing Union picket
lines (App. 24a). Ten hyphenates were subsequently
convicted by Union trial committees; the eonvicted
hyphenates were suspended or expelled from Union
membership and were fined amounts ranging from $100
to $50,000 (App. 45a—46a). Later the Union member-
ship voted to reduce the penalties of nine of the con-
victed hyphenates (App. 46a). The Union also an-
nounced that all further disciplinary proceedings
involving hyphenates would be stayed pending ad judi-
eation of the unfair labor practice charges, which
meanwhile had been filed by the Employers (ibid.).
2. The Board (Member Fanning dissenting) held
that the Union violated Section 8(b)(1)(B) of the Act
by disciplining and threatening to discipline the hv-
phenates (App. 10a-14a, 69a). The Board concluded
that the Union’s actions tended to deprive the Em-
ployers of the hyphenates’ supervisory services—which
included grievance adjustment (and collective bargain-
ing in the case of producers )—during the strike ( App.
62a-64a). The Board also relied upon two prior deci-
sions,’ in which it had concluded that union discipline
of supervisors, whose functions included grievance ad-
justment or collective bargaining, for crossing picket
lines to perform supervisory duties was likely to carry
over to affect future performance of supervisory duties,
including those functions (App. 13a n.6). The Board
entered an appropriate remedial order (App. 13a, 73a-
76a).
Member Fanning dissented because, in his view,
Florida Power & Light Co. v. International Brother-
hood of Electrical Workers, Local 641, 417 U.S. 790,
established that union discipline of supervisors for
crossing picket lines does not violate Section 8(b) (1)
(B) (App. 14a).
3. A divided court of appeals, agreeing with Member
Fanning, denied enforcement of the Board’s order
(App. la-9a).
1. The holding of the court of appeals—that Section
8(b)(1)(B) of the Act does not prohibit union disei-
* Chicago Typographical Union No. 16 (Hammond Publishers,
Inc.), 216 NLRB 903 ; New York Typographical Union No. 6 (Daily
Racing Form), 216 NLRB 896.
pline of supervisor-members who represent manage-
ment in grievance adjustment or collective bargaining
for crossing picket lines to perform supervisory fune-
tions—conflicts with decisions of two other courts of
appeals. In Wisconsin River Valley District Council v.
National Labor Relations Board, 5332 F. 2d 47, the
Seventh Circuit held that such discipline violates that
section because it unlawfully restrains employers in the
selection of their supervisory personne! in the two ways
identified by the Board in the instant case. The court
explained (id. at 53) :
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 disci-
pline is imposed. Where supervisors cross picket lines
to perform regular supervisory duties, union disei-
pline 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
ihe supervisors would reasonably anticipate that
union discipline would also be imposed if future per-
formance of their § 8(b)(1)(B) functions did not
meet with union approval. * * *
We do not believe as the Union contends, that
Schulist’s performance of 30 percent rank-and-file
work warrants a different result. The Union's re-
liance on Florida Power is misplaced since the
supervisor-members, in that case, crossed the picket
line for the sole purpose of performing rank-and-file
struck work. Here, however, Schulist continued te
7
perform substantially supervisory functions—a most
important distinction. * * *
’ Similarly, in Chicago Typographical Union No. 16 v.
National Labor Relations Board, 539 F. 2d 242, peti-
tion for a writ of certiorari pending, No. 76-688, the
District of Columbia Circuit enforced, without opinion,
the Board’s order in that case, which was predicated on
a finding that union discipline of supervisor-members
for performing supervisory functions during a strike
violated Section 8(b)(1)(B) of the Act. Chicago Typo-
graphical Union No. 16 (Hammond Publishers), supra,
note 3.
The question whether Section 8(b)(1)(B) prohibits
union discipline of supervisor-members for crossing
picket lines to perform supervisory functions during a
strike is a recurrent one in the administration of the
Act. In addition to the present case and those pre-
viously cited, the question has arisen in, e. g., Bakery
and Confectionery Workers, Locals 24 & 119 (Food
Employers Council, Inc.), 216 NLRB 917; United
Brotherhood of Carpenters, Local Union No. 14 (Kap-
lan Properties), 217 NLRB 202; Local Union No. 1959,
United Brotherhood of Carpenters (Aurora Modular
Industries), 217 NLRB 508; Detroit Newspaper Print-
ing Pressmen’s Union, Local Union No. 13 (Observer
Newspapers, Inc.), 217 NLRB 576; Warchouse Union
Local 6 ( Associated Food Stores, Inc.), 220 NLRB 809;
Glaziers and Glassworkers Local No. 1621 (Glass Man-
agement Assn.), 221 NLRB 509; Newspapers Guild,
Local 187 (Times Publishing), 222 NLRB No. 132;
Meat and Provision Drivers Union Local 626, I. B. T.
(Food Employers Council), 224 NLRB No. 40, applica-
tion for enforcement pending, No. 76-2616 (C. A. 9).
In view of the conflict and the importance of the
issue, review by this Court is appropriate.
2. The decision of the Board in the instant case was
correct, and the court of appeals erred in overturning
it.
Section 8(b)(1)(B) of the Act makes it unlawful for
a labor organization to restrain or coerce * * * an
employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances. In Florida Power, supra, this Court re-
viewed the Board’s application of Section 8(b) (1) ()
since the provision was enacted in 1947, 417 U.S. at
798-802. As the Court noted, the Board originally
applied Section 8(b)(1)(B) to prohibit direct union
pressure against an employer seeking to dictate the
selection of his representative for grievance adjust-
ment or collective bargaining. Subsequently, the Board,
with court approval, applied Section 8(b)(1)(B) to
prohibit union discipline of such management represen-
tatives who were union members for the manner in
which they performed their grievance adjustment and
collective bargaining functions, or other supervisory
duties.“ In Florida Power itself, the Board had ex-
* As the Board stated in San Francisco-Oakland Mailers’ Union
No. 18 (Northwest Publications, Inc.), 172 NLRB 2173:
That [the union] may have sought the substitution of attitudes
rather than persons, and may have exerted its pressures upon the
charging party by indirect rather than direct means, cannot alter
the ultimate fact that pressure was exerted here for the purpose
of interfering with the Charging Party’s control over its represen-
during a strike. In rejecting
that interpretation of
tended the Section further, to prohibit union discipline
of supervisors who performed only rank-and-file work
Section 8(b)(1)(B) the Court held: 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 discipline
may adversely affect the supervisor’s conduct in per-
forming the duties of, and acting in his capacity as,
grievance adjuster or collective bargainer on behalf of
the employer.“ 417 U.S. at 804-805.
In commenting on this conclusion, Mr. Justice White
stated, in dissent, ‘‘I do not read the Court to say that
§ 8(b)(1)(B) would allow a union to discipline super-
visor-members for performing supervisory or manage-
ment funct‘ons, as opposed to customary rank-and-file
work, during a labor dispute.’’* 417 U.S. at 815 n. 2.
The decision of the court of appeals in the instant case
is thus at odds not only with the decisions of the
Seventh and District of Columbia Circuits noted above,
but with Florida Power itself.
A realistic view of the effects of union discipline sup-
tatives. Realistically, the Employer would have to replace its
foremen or face de facto nonrepresentation by them. * * *
* Similarly, the District of Columbia Circuit 's decision in Florida
Power, which this Court affirmed, noted that ‘‘[t}he unions par-
ticipating in the present cases conceded * * * at oral argument
* * * that when a supervisor crosses a picket line to perform
supervisory work he remains immune from discipline’’ (emphasis in
original). 487 F. 2d at 1157. Judge MacKinnon, dissenting, said
without challenge, ‘‘there is unanimous agreement on this court
that section 8(b)(1)(B) prohibits union discipline of supervisory
personnel for acts performed by them in the course of their super-
visory or managerial duties. Id. at 1174.
10
ports the conclusion that the court of appeals erred, for
union discipline of a supervisor who crosses picket lines
to perform gricvance adjustment or collective bargain-
ing duties ‘‘may adversely affect the supervisor’s con-
duct in performing the duties of, and acting in his
capacity as, grievance adjuster or collective bargainer
on behalf of the employer.“ Florida Power, supra,
417 U.S. at 804-805. First, such discipline is intended
to force the supervisor to honor the union’s picket line ;
if the supervisor succumbs to the union pressure, the
employer will be deprived of his chosen representative
for the performance of grievance adjustment, collective
bargaining, and other supervisory services for the dura-
tion of the strike no less than if the union had directly
pressured the employer into removing that supervisor
from his duties.“ Second, the supervisory functions
performed during the strike are similar to those which
the supervisor will perform later ; hence, it is likely that
the supervisor will perceive a connection between the
performance of supervisory functions and the disei-
pline, and modify his future performance of those
_
* As noted (supra, pp. 3-4), the Union's strike rules prohibited
Union members from working in the future with disciplined mem-
bers, and Union officials specifically warned hyphenates that they
would be blacklisted if they worked during the strike. Under these
conditions, even if the hyphenates did not suceumb to the Union's
pressure and worked during the strike, the Employers would have
been deprived of their services thereafter, for rank-and-file em-
ployees would be reluctant to work with disciplined hyphenates in
violation of the Union 's rules. Although the Union sought to
rescind its blacklist rule after issuance of the Board's complaint, the
Board found that the Union's other actions encouraged a voluntary
boyeott (App. 69a—70a).
11
functions, ineluding grievance adjustment or collective
bargaining, to avoid antagonizing the union.
In Florida Power, by coutrast, the (disciplined super-
visors performed only rank-and-file work during the
strike. In these circumstances, the threat of union
discipline, if it sueceeded in keeping the supervisors
away from work, would not have deprived the employer
of his chosen representatives for the performance of
grievance adjustment, collective bargaining, and other
supervisory functions. Moreover, in the Court's view,
one could not reasonably assume that discipline for
performing rank-and-file work would affect the sub-
sequent performance of supervisory functions. In sum,
here supervisors cross picket lines to perform rank-
and-file struck work, union discipline does not violate
Section 8(b)(1)(B) since it merely deprives the em-
ployer of services normally rendered by strike-break-
ing replacement employees.’’ Wisconsin River Valley
District Council, supra, 532 F. 2d at 53. But, where, as
here, supervisors are disciplined for performing their
supervisory functions during a strike, the discipline
does deprive the employer of the normal use of his
supervisors during the strike and there is greater
reason to believe that the discipline will affect the
exercise of supervisory duties thereafter.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted.
Dante M. FRIEDMAN,
Acting Solicitor General.
Joun S. Irvina,
General Counsel,
Joun E. Hiddixs, In.,
Deputy General Counsel,
Cart L. TayLor,
Associate General Counsel,
Norton J. Come,
Deputy Associate General Counsel,
Joun G. ELLIGERs,
Attorney,
National Labor Relations Board.
FEBRUARY 1977.
APPENDIX A
United States Court of Appeals
For THE Seconp Crrcurr
Nos. 604, 1161—September Term, 1975.
(Argued May 10,1976 Decided November 22, 1976.)
Docket Nos. 75-4089, 75-4121
AMERICAN Broapcastino Companies, Inc., CBS, Ixc.,
and NationaL Broapcastine Company, Inc.,
Petitioners,
and
ASSOCIATION OF Motion PicrurE
and TELevision Propucers, INC.,
Intervenor,
V.
NATIOxAL Lasor RRLATTIONS Boarp,
Respondent.
National LABOR Retations Boarp,
Pet it ioner,
and
AMERICAN BNOADCASTIN O Companies, Inc., CBS, Ino.
and NationaL Broapcastina Company, INc.,
Intervenors,
V.
Warrers Gun or America, West, Inc.,
Respondent.
la
Before:
Moore and TrmsBers, 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.
Joux G. Ex.icers, 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 Peti-
tioner-Respondent National Labor Relations
Board.
Ricuarp N. Fisuer, Los Angeles, Cal. (Steven
C. Babb, and O’Melveny & Myers, Los
Angeles, Cal., on the brief), for Petitioners-
Intervenors American Broadcasting Com-
panies, Inc., CBS, Inc., and National Broad-
casting Co., Ine.
Harry J. Keaton, Los Angeles, Cal. (Andrew
B. Kaplan, and Mitchell, Silberberg & Knupp,
„Hon. Jon O. Newman, United States District Judge, District of
Connecticut, sitting by designation.
3a
Los Angeles, Cal., on the brief), for Intervenor
Association of Motion Picture and Television
Producers, Inc.
Jutius Reicu, Los Angeles, Cal. (Reich, Adell
& Crost, Selvin & Weiner, Los Angeles, ( ‘al.,
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), re-
quiring the union (Writers Guild of America, West,
Inc.) to cease and desist from certain conduct during a
strike found to be in violation of Section 8(b)(1)(B)
of the National Labor Relations Act and to take cer-
tain 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) in con-
cluding that the union restrained and coerced the em-
ployers by threatening to blacklist and discipline and
by fining and expelling from membership certain super-
visory personne! who crossed the picket lines during a
strike. ad
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
4a
instant case and we deny enforcement of the Board’s
order. See Florida Power d Light Co. v. International
Brotherhood of Electrical Workers, Local 641, 417 U.S,
790 (1974).
Enforcement denied.
Moore, Circuit Judge (Dissenting) :
I cannot join in the conclusion of the majority that
enforcement should be denied because in my opinion
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
Ine. (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
*‘hyphenate’’. 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
5a
employees of Guild members who were hyphenates in
the selection of their representatives for the purpose
of collective bargaining or the adjustment of griev-
ances. The ALJ order contained certain ‘‘vease and
desist provisions relative to anv emplovee whose fune-
tion involved supervisory or managerial tasks and
enjoined disciplinary proceedings against such group
by way of fines or otherwise.
When the matter came before the Board on the
record, briefs and exceptions to the ALJ decision, a
panel of the Board affirmed ‘‘the rulings, findings and
conclusions of the Administrative Law Judge to the
extent consistent herewith [its opinion]“ and adopted
the recommended ALJ order. A third member of this
panel dissented. The Board sustained ‘‘the complaint’s
alleged violations of Section 8(b)(1)(B) of the Act
[the National Labor Relations Act], in toto.
There is no disputed question of fact as to the threats
and disciplinary action by way of fines against the
hyphenates. This in terrorem action by the Guild
would inevitably have an effect of inclining these em-
plovees towards their Unions in matters supervisory
and managerial when they should have been free of any
coercive influences.
The majority's reliance on Florida Power d Light
Co. v. International Brotherhood of Electrical Work-
ers, 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 represen-
tative of management, and as such he should be
ba
immune from union discipline. The unions partici-
pating in the present cases conceded as much at oral
argument when they agreed that when a supervisor
crosses a picket line to perform supervisory 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)(B)
when they disciplined their supervisor-members for
crossing the picket lines and performing rank-and-
file struck work during lawful economic strikes
against the companies. (Emphasis added) 417 U.S.
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 supervisory
employee can constitute a violation of §8(b)(1)(B)
only when that discipline may adversely affect the
supervisor's conduct in performing the duties of, and
acting in his capacity as, grievance adjuster or collee-
tive 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-
7a
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.
APPENDIX B
United States Court of Appeals
Seconp Cmcurr
At a Stated Term of the United States Court of
Appeals, in and for the Second Circuit, held at the
United States Court House, in the City of New York,
on the twenty-second day of November, one thousand
nine hundred and seventy-six.
Present: Hon. LON AD P. Moore
How. WIA H. Turns
Circuit Judges
Hox. Jon O. NEWMAN
District Judge
American Broadcasting Companies, Inc.,
CBS, Incorporated and National Broad-
casting Company, Incorporated, 75-4089
Petitioners,
v.
National Labor Relations Board.
Respondent.
Association of Motion Picture & Televi- >
sion Producers, Inc.,
Intervenors,
National Labor Relations Board,
Petitioner,
v.
Writers Guild of America, West Inc., 15-4121
Respondent.
—
A petition for review and an application for enforce-
ment of an order of the National Labor Relations
Board. |
This cause came on to be heard on a certified list of
items comprising the record of the National Labor
Relations Board and was argued by counsel.
Upon consideration thereof, it is now hereby ordered,
adjudged and decreed that the application for enforce-
ment be and it hereby is denied in accordance with the
opinion of this court with costs to be taxed against the
petitioners.
A. Dante Fusaro
Clerk
by
Vincent A. Carlin
Chief Deputy Clerk
APPENDIX C
FJP
D—9835
Los Angeles, Calif.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
Writers Gun or AMER-
ica, West, LNo.
and Cases 31—C B—1203—2,
ASSOCIATION OF MOorion and
PicTURE AND TELEVISION, 31—C B—1316,
Inc.’
and Cases 31—C B—1223,
AMERICAN BROADCASTING and
ComPaNtes, Ino. 31—C B—1313,
CoLUMBIA BROADCASTING and
System, Ine.
NATIONAL BROADCASTING
Company, Inc.’
and Case 31—CB—1355
QM Propuctions
DECISION AND ORDER
On September 18, 1974, Administrative Law Judge
* Hereinafter referred to as the Association.
* Hereinafter referred to as the Networks.
10a
lla
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions’
and a supporting brief, and Charging Parties Net-
works and the Association filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its author-
ity in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and con-
clusions of the Administrative Law Judge to the ex-
tent consistent herewith, and to adopt his recommended
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 posi-
tions. With respect to Jerome Bredouw, he found that
the charges against Bredouw were dismissed after trial,
*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 applied to persons who are writers
but possess the ability to perform in more than one capacity, such
as producing, directing, or editing for their employers in the
industry. We affirm the Administrative Law Judge's findings that
hyphenates who are also producers, directors, and story editors
are supervisors within the meaning of Sec. 2(11) of the Act.
12a
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 there-
fore 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 hy-
phenates 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, Respon-
dent was determined to enforce its threats without re-
gard to the fact that the Charging Parties uniformly
followed a policy during the strike not to require
hyphenates to perform any unit or struck work.
Furthermore, 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) proseribes the disciplinary action here
Included in these classifications are vice presidents for program
production, vice presidents for production, vice presidents for
program development, general programming executives, managers
of film programs, and executives. Although the Administrative
Law Judge made no finding on the supervisory status of persons
occupying these positions, we find it necessary to do so. The record
clearly reflects that persons in these classifications engage in hiring
and are representatives, or potential representatives, of their em-
ployers in the adjustment of grievances. Accordingly, we conclude
that persons occupying the above positions are supervisors and
representatives of their employers within the meaning of Sees. 2(11)
and 8(b) (1) (B) of the Act.
13a
taken against 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.’ Therefore
sustain the complaint’s alleged violations of Section
8(b)(1)(B) of the Act, in toto.
ORDER
Pursuant to Section 10(e) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order 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
notice is substituted for that of the Administrative
Law Judge.
Dated, Washington, D.C.
Howard Jenkins, Jr., Member
John A. Penello, Member
(SEAL )
NATIONAL LABOR RELATIONS
BOARD
* Chicago Typographical Union No. 16 (Harmmond Publishers,
Inc.), 216 NLRB No. 149 (1975) ; New York Typographical Union
No. 6, International Typographical Union, AFL—CIO (Daily
Racing Form, a Subsidiary of Triangle Publishers, Inc., 216 NLRB
No. 147 (1975).
Local 423, Laborers’ International Union of North America,
ALF—CIO (Mansfield Flooring Co., Inc.), 195 NLRB 241 (1972) ;
International Union of Operating Engineers, Local 406, AFL—CIO
(New Orleans Chapter, Associated General Contractors of America,
Inc.), 189 NLRB 255, 265 (1971) ; United Slate, Tile & Composition
Roofers, Damp & Waterproof Workers Association, Local No. 220
(Jones and Jones, Inc.), 177 NLRB 632, 653 (1969).
l4a
MEMBER FANNING, dissenting:
For the reasons stated in my dissenting opinion in
Triangle Publications, Inc., 216 NLRB No. 147, 1
would dismiss the complaint. I wish to point out,
once again, that the Supreme Court has, in Florida
Power d Light Co., indicated that Section 8(b)(1)
(B) was designed for the sole and limited purposes of
preventing labor organizations from forcing employers
into multiemployer bargaining negotiations and from
dictating to employers whom they should select to rep-
resent them during grievance adjustment procedures
and/or collective-bargaining sessions. Our prior ‘‘evo-
lutionary 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.
John H. Fanning, Member
NATIONAL LABOR RELATIONS BOARD
Florida Power & Light Co. v. International Brotherhood of
Electrical Workers, Local 641, 417 U.S. 790 (1974).
* For a discussion of the history of Section 8(b)(1)(B) see dd.
at 798-805.
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, D. C.
Writers Guitp or America, West, Ine.
and Case No.
Association oF Motion Picrure ann 31-CB. 1203.2
TELEVISION Propucers, Inc.
Writers Gun or America, West, Inc.
and Case No.
AMERICAN BroapcastinG CoMPANIES, 31-C B-1223
INc.
Co_umBia Broapcastine System, Inc.
National Broapcastine Company, INc.
Wearrers Guivp or America, West, Inc.
and Case No.
ASSOCIATION OF Motion Picture anp = 31-C B-1316
TELEVISION Propucers, Inc.
Writers Gun or America, West, Inc.
and Case No.
AMERICAN Broapcastine ComPANIES, 31-CB-1313
INc.
Col uu Broapcastine System, INC.
National Broapcastine Company, Inc.
Werrrers Gun or America, West, Inc.
and Case No.
QM Propuctions 31-C B-1355
15a
l6a
Philip R. LeVine, Esq., for the
General Counsel.
Charles K. Hackler, Esq., and Gerald
Goldman, Esq. (Levy, Van hour d
Hackler), and John A. Mendonsa, Esq.,
Los Angeles, Calif., for the
Respondent.
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 d
Myers; Raymond P. Hermann, Esg.,
on the brief), Los Angeles, Calif.
for the Charging Party Networks.
DECISION
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.
1 All dates herein are in 1973, unless otherwise noted.
17a
(herein ‘‘Respondent’’) by Association of Motion
Picture and Television Producers, Ine. (herein
*“AMPTP”’’), and a charge filed in Case No, 31-CB-
1223, on April 4, against Respondent by American
Broadcasting Companies, Inc. (herein ‘‘ABC’’),
Columbia Broadcasting System, Inc. (herein ‘‘CBS’’)
and National Broadcasting Company, Ine. (herein
NBC“) (herein jointly ‘‘the Networks’’), the Re-
gional Director for the Thirty-first Region, on April
18, issued an Order Consolidating Cases and a Con-
‘solidated Complaint against Respondent, which was
amended by the issuance of a Consolidated Amended
Complaint on May 23. Respondent filed timely an-
swers. Hearing on this complaint was concluded on
June 13.
Upon a charge filed in Case No. 31-C B-1313, on July
11, by the Networks, and a charge filed in Case No.
31-CB-1316, on July 16, by AMPTP against the Re-
spondent, the Regional Director, on July 25, issued an
Order consolidating hose two cases and a Consolidated
Complaint. Respondent filed timely answer. By a
Joint Motion dated August 2, the parties requested
that the four cases be consolidated, and the record
reopened for further hearing. This motion was granted
by order dated August 10.
Upon a charge filed in Case No. 31-CB-1355, on
September 5, against Respondent by QM Productions
(herein M“), the Regional Director, on September
20, issued a complaint in that case. Respondent filed
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
18a
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
granted at the hearing held on November 26. There-
after, General Counsel filed a motion dated December
11, to substitute a Second Consolidated Amended Com-
plaint for all complaints previously issued in the above-
captioned cases, to which Respondent filed an answer
dated December 13. Finally, in lieu of further hear-
ing in these matters, all parties submitted a stipulation
of facts with exhibits attached, dated December 17.
By Order dated January 25, 1974, General Counsel’s
motion to substitute the Second Consolidated Amended
Complaint for all prior complaints was granted and
the complaint and the answer thereto were received
into the record, and the stipulation of facts, with speci-
fied exhibits, was received, the hearing in this proceed-
ing was closed, and date set for receipt of briefs.’
2. Allegations
The various complaints 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-
—
Exhibit numbers have previously been assigned to all formal
papers with the exception of my Order of January 25, 1974 and
General Counsel's telegraphic response thereto, received Feb-
ruary 4, 1974. The Order is hereby received as General Counsel's
Exhibit 141, and the response is received as General Counsel's
Exhibit 14M.
19a
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
meaning of the Act.
Respondent's answer to the complaint, while ad-
mitting certain allegations, denies the alleged unfair
labor practices.
Upon the entire record in this case, from observation
of the witnesses, and after due consideration of the
briefs filed by the General Counsel, the Respondent,
and the Charging Parties,’ I make the following:
Findings and Conclusions
I. Jurisdiction
AMPTP is an association located at Los Angeles ad-
mitting to membership firms engaged in the produetion
and distribution of motio: picture and television films,
and existing, in part, for the purpose of negotiating,
—— and administering colleetive-bargaining
—
z of Ge Gegreme Crass tn Plastde Penne 6
Light Co. v. 1 BE.W. Local 641, ef al, — U. 8. —, 86 LRRM
2689, the partion were invited to file briefs, no later than August 9,
1974, with respect to the impact of that decision upon this case and
did so. I have also issued a separate order correcting some inac-
euracies in the transcript.
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 outside
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,
annually 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 Association,
CBS, NBC, ABC, and QM are employers engaged in
commerce within the meaning of the Act.
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.
II. Preliminary Statement of Facts
and Principal Issues
Respondent has for some time represented persons
engaged in writing functions employed by members of
AMPTP, the N and certain independent pro-
ducers such as M. As a result of prior bargaining,
2la
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, Respon-
dent engaged in a strike against the AMPTP and its
employer members which continued until June 24, dur-
ing which time Respondent picketed some of those em-
ployers at various times. Beginning on or about March
29 and continuing until July 12, Respondent engaged
in a strike against NBC, CBS, and ABC, and main-
tained picket lines at the premises of each of them.
Beginning on or about March 4, and continuing 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 (here-
inafter considered in some detail) forbade members of
Respondent to do any work of any sort for employers
on strike, or to cross picket lines to go upon the
premises of such employers without specifie permission
of Respondent. Respondent took other action, and
caused certain publicity to issue designed to impress
upon its members the consequences of violating these
Rules.
At the times material to this proceeding, Respon-
dent’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 crea-
tive 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 prin-
cipal work function (other than writing) will some-
times be referred to herein as his (or the) primary
function.
General Counsel contends that these hyphenates
occupy supervisory positions within the meaning of the
Act, and are representatives, or potential and likely
representatives, for their respective employees for the
purposes of collective bargaining or the adjustment of
grievances.
The record indicates that Respondent was partic-
ularly 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 Respondent
at the time. Those hyphenates questioned indicated
their understanding that, as associate members, they
had no right to vote on the adoption of the Respond-
ent’s strike rules, and did not do so. With one excep-
tion, the hyphenates also testified to the same effect
with respect to the vote authorizing Respondent to
strike. Herbert Wright, an associate producer, 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. See-
tion 6, paragraph 1, that associate members shall not
have the right to vote, while Article XIV, Section 8
(last paragraph) states certain restricted cireum-
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 con-
ditions. Counsel for Respondent, during the disei-
plinary 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
Respondent. In accordance with the provisions of the
Constitution and By Laws, Respondent rejected the
attempted resignation, ‘“‘in view of current contract
negotiations and the importance to the Guild of main-
taining effective communication with its membership,”’
advising that the member must maintain his member-
ship 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 stipu-
lated by the parties that at all times material this re-
24a
fusal to permit any member to resign from member-
ship 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 was con-
siderably litigated. However, in its brief, Respondent,
as hereinafter noted, appears to concede that hy-
phenates 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 Respond-
ent.
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,
and penalizing such members for going to work during
the strike, violated Section 8(b)(1)(B) of the Act.
25a
Also whether Respondent’s refusal to allow such
hyphenates 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 their employers for the pur-
poses of collective bargaining or the adjustment of
grievances :
1. Executive Producer, Producer, and Associate Pro-
ducer. 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 involvement
in the budget for the film; the employment of a writer
or writers who develop and write the scripts under the
In its answer to the complaint Respondent asserted as three
„Separate Special’’ defenses the claims that 1) by the terms and
provisions of the various bargaining agreements, the employers
had waived the right to designate Respondent's members as rep-
resentatives for collective bargaining or the adjustment of griev-
ances during the strike; 2) by the terms and provisions of the
various bargaining agreements, the employers had agreed Respon-
dent's members, including supervisors, might refuse to work during
the strike ‘‘and be subject to Guild discipline for crossing picket
lines or working for struck employers ...’’; and 3) that the
two issues set forth should be deferred to arbitration. In its
original brief at p. 19, Respondent has withdrawn its first two
special defenses. The third is considered hereinafter.
26a
supervision of the producer or others associated 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, loca-
tions; the performance of executive functions during
the filming ; and the performance of executive functions
in the post-production stages, after filming.
The producer has substantial responsibility and
authority 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 responsibility
and authority to adjust grievances involving writers,
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 commit-
ment 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 dispute over the
assignment of screen credits to writers, although this is
a complex matter, subject to extensive review. In situ-
ations 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 attempting 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 producer
27a
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 emplovee grievances, or
to effectively recommend such action, and are thus
supervisors within the meaning of Section 2(11) of the
Act. Respondent dves 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. 7-8). As found above, however, I
find that producers, executive producers and associate
producers do or potentially may adjust grievances in-
volving 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-
* Respondent adduced considerable testimony concerning certain
hyphenates who are legally employed by their own wholly-owned
corporations, which corporations furnish the hyphenates’ services
to employers involved in this proceeding. This is referred to in the
record as a loan out agreement. The record is convincing and
I find that such ‘‘loaned-out’’ employees occupy the same positions
as more conventionally employed persons doing the same work
and are treated the same by the employers here involved. It is
noted that Respondent makes no point of this in its brief.
members of Respondent in the position of Executive
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,
Robert Cinader, Barry Crane, Jon Epstein, Andrew
J. Fenady, Stephen Heilpern, Ron Honthaner,
Leonard Katzman, David Levinson, Roger Lewis,
James McAdams, John T. Mantley, Thomas L. Miller,
Martin Ransohoff, William Roberts, Albert Ruddy,
Herman S. Saunders. David Victor and Herbert
Wright.“ Of these, Cermack, 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 hereinafter.
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
grievances 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.
* There are two or three additional producers noted on G.C. Exh. 3
as having received charges who were not listed in the parties’
post-hearing stipulation and for whom copies of the charges were
not submitted.
The record indicates approximately 15 hyphenate
members of Respondent in this position emploved by
the charging parties (without duplicating those listed
as producer-directors, or the like). Of these Respon-
dent 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 disciplined.
3. Story editors, story consultants, script consul-
tants, executive story editors, executive story con-
gultants. Although there may be some differences among
these classifications, or in the requirements of the
various employers for these positions, these job func-
tions may be considered together for our purpdses
under the title of story editor.“ The story editor is
of principal assistance to the producer in the highly
important functions of dealing with scripts and writers.
The story editor may be, and frequently is, concerned
with reading and acquiring scripts, interviewing
writers and recommending them for hire (or other-
wise ), directing and supervising writers in the develop-
ment of ideas and the preparation of scripts, and in
recommending that writers not be retained. On a tele-
vision 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 be-
tween management and the writer, as in ameliorating
a writer’s distress over material that has been re-
written. Thus one executive 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 associa-
tion 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 Trapnell, 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 fune-
tions of story editor, story consultant, script consul-
tant, executive story editors, and executive story con-
sultants are supervisors and adjust grievances of
employees within the meaning of the Act.’
Of approximately 15 hyphenate-members of Re-
spondent 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.”
In Metro-Goldwyn-Mayer Studios, et al, 7 NLRB 662, at 696,
the Board at the request of Screen Writers Guild, Ine, found story
editors in the motion picture industry to be executives and super-
visors and excluded them from a unit of writers sought by that
union.
„It is noted that Respondent made no effort during these dis-
ciplinary hearings to show that these men did any writing or
performed any functions during the strike which were not normal
to the primary function of the classification. During the Trapnell
hearing, indeed, Respondent's Counsel stated, typical of Respond-
ent s position in these hearings, that fit is immaterial |to Re-
spondent's charges against Trapnell] what type of services were
being rendered, whether they were writing services or other serv-
deen
4. Other classifications. The General Counsel argues
that hyphenates in other classifications, who received
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 emplovers for col-
lective bargaining or the adjustment of grievances. The
record indicates that these persons do 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 Respondent
for violation of the strike rules are contained in the
classification previously considered, except J erome
Bredouw, and the charges against Bredouw were dis-
missed after trial, and, so far as this record shows, no
penalty was assessed against him. In the ecireum-
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 hy-
phenate members of Respondent who went to work dur-
ing the strike must have engaged in such writing. This
is largely disputed by witnesses for the General Coun-
sel and defendants at the disciplinary hearings who
testified that they do not in the performance of their
primary function for their employers normally or
32a
regularly perform writing coming within Respondent’s
collective-bargaining agreements and specifically did
not do so during the strike. This requires, at the outsct,
some consideration of the functions of writers repre-
sented by Respondent under the various agreements.
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
capacities other than as writers. It is provided in
Article 14, paragraph A, of that Agreement, referring
to ‘‘writers in non-writing capacities,“ that where such
individual 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
emploved as a writer (as defined in the agreement),
such services shall be performed under a separate
agreement providing for compensation as set forth in
the agreement.
Article 14, paragraph B of that Agreement also pro-
vides, 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
Although the heading of Article 14 would indicate that it
applies only to the ‘‘television’’ side of the industry, it is noted
that Article 1B1. of the Agreement, which defines the term ‘‘ writ-
ing! in the ‘‘threatical’’ side of the industry, also adopts the
language of Article 14
Article 1A 11. of the 1970 Networks basic agreement also states
that with limited exceptions the agreement ‘‘shall not nor is it
intended to cover the services of Producers, Directors, Story Super /
visors, composers, non-writing capacity... .’’
script changes to other writers, or recommending
approval of material submitted by writers, shall be
subject to this Basic Agreement (excluding Exeecu-
tives, Executive Producers, and Producers; and also
excluding persons who are employed as bona fide Ass o-
ciate Producers, 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.1.a., and paragraph C. Ia. of that Agreement, in-
cludes, in pertinent part, a person who performs
services ...in writing or preparing. literary
material or making revisions, modifications, or changes
in such literary material. . , provided, hywever that
any writing services described below performed by
Producers, Directors, Story Supervisors (other than as
provided in Article 14 hereof), ..., or other em-
ployees, shali not be subject to this Basie Agreement
and such sources shall not constitute such person a
writer hereunder: (a) Cutting for time, (b) Bridging
material necessitated by cutting for time, (e) Changes
in technical 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 unfore-
seen contingencies (e.g., the elements, accidents to per-
formers, et-), (h) Instructions, directions, or sug-
gestions, whether oral or written, made to writer re-
garding 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
functions within the meaning of the contract between
the Respondent and the various employers. Some
persons who have written such seripts 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 collee-
tive-bargaining agreement. Some producers and diree-
tors who have the capacity to write may have separate
agreements with their employers covering possible
writing 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 photog-
raphy, and thereafter before release of the film. Many
of these changes, perhaps most, involve A to H func-
tions, and may be made by producers or directors or
story editors whether or not they are members of the
Respondent. It is indicated that prior to the strike,
other changes of a more substantial nature might be
made in the seript when the producer or the director
desired. Such changes would be made by persons quali-
— c
fied under the applicable contract between Respondent
and the employer.
Respondent argues, however, that even when man-
agement executives and supervisors perform functions
which have been excluded from the bargaining agree-
ments, such as A through H functions, they are never-
theless performing writing functions within the juris-
diction 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 bar-
gaining agreements they thereby perform functions
which the parties have acknowledged do not constitute
work reserved to Respondent's non-hyphenate mem-
bers under the agreements, but rather are accepted as a
normal 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
In some of the disciplinary trial transcripts, it is noted that
Respondent's counsel argued vigorously that functions excluded
from Respondent's agreements, such as A through II. were excluded
because the economic strength of the employers in bargaining.
However, this is the classic way in which management and super-
visory rights and functions are differentiated from rank and file
functions under a bargaining agreement.
36a
occupying 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 Respon-
dent’s Constitution and By-Laws (Rule 29), and en-
forcement of the rules by committees (Rule 31). The
remaining rules in pertinent part, are as follows:
1. Any act or conduct which is prejudicial to the
welfare of the Guild is subject to disciplinary
action. Conduct tending to defeat a strike or in
any way weaken its effectiveness is per se con-
duct prejudicial to the welfare of the Guild.
12. All members are prohibited from crossing a
picket line which is established by the Guild at
any entrance to the premises of a struck pro-
ducer.
13. 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 enter-
ing the premises of any struck producer for the
purpose of viewing any film . . should a mem-
7
37a
ber 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 prospective visit.
19. A member may not, during the course of a strike,
conduct negotiations with a struck producer for
financing the production of any of his literary
material or scripts, or for his participation in
such production in any capacity.
22. A member is chargeable with knowledge of all
strike rules and regulations, . . . circularized
through the mail to the membership and of any
strike information made known .. . through
. . trade papers, newspapers, radio bfoad-
casts or telecasts. . . .
24. 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.
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 disci-
plinary 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 abro-
38a
gated 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, in-
cluding 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 person.
By means of meetings and publicity, and through
personal contact, memos, telegrams and letters, Re-
spondent emphasized and confirmed that these rules
would be enforced against the hyphenate-members."
One such communication was a telephone conversation between
Herbert Wright, a producer, and Alan Griffiths, Assistant Execu-
tive Director of Respondent. During the hearing, Respondent
asserted a variance between Wright's testimony and his affidavit
held by the General Counsel and further requested that I accept
Wright's affidavit as substantive evidence under the rule of evi-
dence 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 | credit
Wright's testimony as given at the hearing. Treating Wright 's af-
39a
The hyphenate-members were particularly vulnerable
to pressure under rule 30 because in their primary work
as producers, directors, story editors, and executives,
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 em-
phasized 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 per-
mitting 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 publieity,
concerning the filing of charges against ‘‘five writer-
producers“, Jon Epstein, Cy Chermak, Herman
Saunders, 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 publica-
tions ‘in perpetuity so that Guild members for years to
come will never forget’ ’’. The Guild official assertedly
„characterized those members guilty of scabbing as
‘pariahs who have betrayed their colleagues.“
After the issuance of the original consolidated com-
plaint in this matter Respondent, on April 30, re-
scinded Rule 30, and by letter to all its members, dated
7, advised :
fidavit as substantive evidence would not affect the findings made
herein.
40a
Old Rule 30 provided that no member shall work with
any individual suspended or disciplined because of
violating strike rules. The Guild’s position has been,
and remains, that it will press disciplinary action as
vigorously as the law and good union principles per-
mit, 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 meeting of April 30, 1973. This
action was taken voluntarily, in the belief that ample
disciplinary measures remain available to trial com-
mittees, including penalties of fines, expulsion from
membership and other sanctions, and with the con-
viction that even in the pursuit of strike discipline,
members of the Guild do not wish to be a part of an
action which carries the odious implications of a
**hlack 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
emplovers to perform in their primary capacities as
directors, producers, story editors, and the like. It
would also appear that many were members of labor
organizations representing them in those capacities,
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 communica-
tions to hyphenates they employed insisting that they
c
41a
come in to work to perform their regular functions
other than writing in the event of a strike. The follow-
ing 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 theat-
rical 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 purport-
ing to govern your conduct during the strike re-
gardless of the capacity’’ in which you are emploved.
We also understand that the Guild may have threat-
ened you with fines and blacklisting 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 obligations
to us as a supervisor and report to work notwith-
standing any picket lines or other attempt to inter-
fere with your complying with your contractual
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
At this point some employers inserted the specific function,
eg., Director, Producer, ete., for which the individual was engaged
by that employer.
42a
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 hy-
phenates were placed under certain pressure to per-
form by the unions holding contracts with the em-
plovers 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 re-
fused to render services covered by the bargaining
agreement and the hyphenate’s personal service con-
tracts (other than writing), they would be subject to
suits for large damages and other penalties.”
3. Enforcement of Respondent’s strike rules
As has been previously noted, Respondent, by issu-
ance of the strike rules, by a meeting with the hyphenate
This statement was made during the disciplinary trial of John
Michael Crichton. There are indications of similar action by the
Producers Guild, and legal action taken against that union by
Respondent.
43a
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 im any capacity. The hyphenates held meet-
ings of their own to determine the proper course to
follow.
Some hyphenates went to work. The record shows
that a number of the hyphenates (1 would assume most
of them, if not all) advised their employers that thev
would do no writing, but would only perform services
under their personal services contracts as producers,
directors, etc., as the case might be. There is evidence
that Respondent was informed of this."
During the various disciplinary trials of the hy-
phenates 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
ee — — —
Frank R. Pierson, a producer, advised Respondent that he had
a personal services contract to produce a film which he intended to
perform during the strike, that the script was finished and no more
writing services would be performed. Pierson offered to provide
and did later provide a copy of the final shooting script so that
Respondent ‘‘could compare it with the shooting continuity . . . to
see whether . anyone had indeed done any writing. Herbert
Wright, after informing Respondent that he would work only as an
associate producer and was not employed to write, nor would he
write, was advised that he would be in violation of the strike rules
if he went to work. Crichton, who performed as a director during
the strike, also informed Respondent that he had ceased writing on
the project and testified that Respondent could confirm this. During
his disciplinary hearing it appears that Crichton’s employer did
provide means for confirming his. Paris, an executive story editor
informed Respondent that he would work in an executive capacity.
Trapnell, also an executive story editor, did work as an executive
44a
strike, and presented no proof that the work done by
the hyphenates was covered by the recently terminated
contracts held by Respondent.” The evidence is that
the hyphenates who worked during the strike per-
formed 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 apper-
taining 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:
It was stipulated at the hearing in this matter that counsel for
the Respondent who participated in the disciplinary hearings insti-
tuted by Respondent would testify that he took the position at such
hearings that the hyphenates charged ‘‘are subject to discipline for
crossing Respondent’s picket line without regard to whether they
cross the picket line for the purpose of performing bargaining
[unit] services for a struck employer or not. And that the charges
will properly lie for crossing the picket line even if the person
charged has given assurances to a representative of [Respondent]
that he is not and will not perform any [writing] services for the
struck employer.
% E.g., Robert A. Cinader, during his disciplinary hearing, re-
ferred to the adjustment of a dispute between a cameraman and
an actor and others; Producer Albert S. Ruddy testified to hiring
a lead actor; athers asserted their general function and authority as
supervisors and in the adjustment of grievances.
45a
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 for the
Conduct of Members during a Strike, dated Feb-
ruary 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 Cen-
ter, 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 com-
pany 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 System, 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 repre-
sentatives 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
*' Testimony by Respondent’s officials in the disciplinary hearings
makes clear that passes would not have been granted to hyphenates
to go in to work as producers, directors, or the like, even if requested.
Tt is also noted that some hyphenates did agree to perform picket
duty at some places notwithstanding they were crossing other picket
lines, which, understandably, tended to create some confusion.
46a
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 membership
and fined $10,000; one was suspended from member-
ship for 2 years and fined $10,000; one was suspended
for 2 years and fined $7,500; one was suspended for 3
years and fined $5,000; one was expelled from mem-
bership and fined $2,000; one was expelled and fined
$100; and one was suspended for 2 years and fined
5100.“ These penalties received wide publicity in the
local press and trade papers. The appeals of nine of
these men has been voted upon by Respondent’s mem-
bership at a special meeting and the penalties were
drastically reduced. Apparently all remaining actions
with respect to discipline of hyphenate-members for
working during the strike are now being held in abey-
ance 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
carbon copy to the Board’s Regional Director. The
following letter to AMPTP sets forth the basis for the
requests:
Gentlemen:
Reference is made to the Writers Guild of America
„The 10 hyphenates penalized for violation of Respondent's
strike rules were Hugh Benson, Robert Blees, Cy Chermack, Jon
Epstein, David Levinson, John Mantlcy, Herman Saunders, David
Victor, Robert Cinader and Barry Crane. No disciplinary hearing
transcript for Crane appears in the record.
47a
1970 Theatrical and Television Film Basie Agree-
ment (‘‘Agreement’’). A dispute exists between the
Guild on the one hand and the Association its mem-
ber companies on the other hand concerning the in-
terpretation of the terms of the Agreement and their
application and effect with respect to the effect of the
current strike by the Guild on the employment con-
tracts of its members and the claimed right of your-
self and the companies to complain of the Guild's
enforcement of its strike rules with respect to all its
members, including those employed in other capaci-
ties. 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 sus-
pended, including the contracts of all members no
matter in what capacities they have been employed ;
and
2. Whether by virtue of the provisions of said
Agreement, and particularly Article 7, the definition
of writer, and other provisions, the Association and
the Companies have waived the right to designate or
select members of the Guild as representatives 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 accord-
ance with the provisions of the Agreement with you
and your member companies that the Guild submits
the dispute to grievance and arbitration pursuant te
the provisions of Articles 10, 11, and 12 of the Agree-
ment. 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 grievance
and request for arbitration. The pertinent part of the
AMPTP letter, in substance similar to the Network’s
reply, is as follows:
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 com-
panies concerning the interpretation and application
of the terms of the .. . (‘‘Agreement’’) in connec-
tion 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 pro-
ceeding 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 Association as to any
matters arising subsequent to March 5, 1973. By
49a
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 including 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, said change
was implemented.
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 Pro-
cedure were still available. The effect of Article 7
upon the status of individual employment cannot
possibly be subject to grievance or arbitration, inas-
much as the status of such agreements is expressly
excluded from grievance 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 unsuccessfully to the Generai Counsel of the
National Labor Relations Board. You will no doubt
urge it again in the impending hearing on the com-
plaint issued by the General Counsel.
In Respondent’s answer to the complaint, it raised
50a
three affirmative defenses based upon the above. In the
first two special defenses, Respondent asserted, al-
most 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 origi-
nal biref, as previously noted, Respondent has with-
drawn these two defenses. In Respondent's Third
Separate Special Defense, Respondent recites the
fact that it has requested the Association and the Net-
works to arbitrate the two issues set forth, and con-
cludes : In view of the pendency of the above described
arbitration proceedings, Respondent respectfully re-
quests that the issues raised in the Second Consolidated
Amended Complaint be deferred to arbitration and the
Board retain jurisdiction pending the arbitral decision
thegfiof.””
Analysis and Conclusions
Under Section 8(b)(1)(B) of the Act it is an unfair
labor practice for a labor organization ‘‘to restrain or
coerce . . . an employer in the selection of his repre-
sentatives 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
5la
practices or policies of the union, charges brought by
a union against such supervisors, trials held, and penal-
ties levied against them for contravening the purposes
and directives of the union were prohibited by this
section of the law, on the ground that such action sub-
verted the loyalties the employer was entitled to expect
from the supervisor in the performance of his func-
tions and deprived the employer of the supervisor
whom the employer had selected—or potentially might
select—to represent the employer for purposes of col-
lective bargaining or adjustment of grievances. In the
two cases considered by the Supreme Court in Florida
Power d Light, the Board had held that union dise-
pline 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 Appeals 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 jection 8(b)(1)(B) cannot reasonably be read
to prohibit discipline of union members—supervisors
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 represent-
ing management in collective bargaining and the ad-
justment of grievances. It was the court’s view that
when a supervisor forsakes his supervisory role to
52a
do work normally performed by nonsupervisory em-
ployees, he no longer acts as a managerial represen-
tative and hence no longer merits any immunity from
discipline“ 487 F.2d at 1157. We granted certiorari,
415 U.S. , to consider an important and novel
question of labor law.
The Supreme Court itself affirmed the Court of Ap-
peals by a vote of 5-4, holding that the legislative his-
tory 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 dic-
tate to employers who would represent them in collec-
tive bargaining and grievance adjustment”’ (slip op. p.
13), and not with the general problem of the super-
visor’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 legislative history is there to be found
any implication that Congress sought to extend pro-
tection to the employer from union restraint or coer-
cion when engaged in any activity other than the
selection of its representatives for the purposes of
collective bargaining and grievance adjustment. The
conclusion is thus inescapable that a union’s disci-
pline of one of its members who is a supervisory
employee can constitute a violation of § 8(b)(1)(B)
only when that discipline may adversely affect the
supervisor’s conduct in performing the duties of, and
acting in his capacity as, grievance adjuster or collec-
tive bargainer on behalf of the employer.
The Court then noted that in the cases before it
53a
(Florida Power d Light and Illinois Bell) it is cer-
tain that these supervisors were not engaged in collec-
tive bargaining or grievance adjustment, or in any ac-
tivities 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 de-
rived 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, cita-
tions omitted):
There can be no denying that the supervisors in-
volved in the present cases found themselves in some-
thing of a dilemma, and were pulled by conflicting
loyalties. But inherent in the option afforded the
employer by Congress, must be the recognition that
supervisors permitted by their employers to main-
tain union membership will necessarily incur obliga-
tions to the union. . And, while both the employer
and the union may have conflicting but
legitimate expectations of loyalty from supervisor-
members during a strike, the fact that the supervisor
will in some measure be the beneficiary of any advan-
54a
tages secured by the union through the strike makes
it inherently inequitable that he be allowed to fun-
tion 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 re-
sign from the union, thereby relinquishing 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 IMMinois Bell, the
company did not command its supervisors to work
during the strike and expressiy left the decision to
each individual. Those who chose not to work were
not penalized, and some were in fact promoted by
their employer after the strike had ended. Those
who did work during the strike but performed only
their regular duties were not disciplined 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 per-
form their normal supervisory functions.
Similarly, in N.L.R.B. v. San Francisco Typographi-
cal Union No. 21, ete. (California Newspapers, Inc.)
486 F.2d 1347 (also relied upon by Respondent), where
the Board had found the union there involved had vio-
lated Section 8(b)(1)(B) by disciplining supervisor-
members for crossing the union's picket lines, the Court
held that ‘‘the Board’s broad interpretation of Section
55a
8(b)(1)(B) ... is an unjustified 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 obliga-
tions as members.“ The Court also noted that although
those disciplined were supervisors, ‘the Union did not
punish them for exercising any management 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 proseribe 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 en-
forced against union members who are free to leave
the union and escape the rule. (Emphasis added.)
In this case we are concerned with certain super-
visory, executive, and managerial personnel (referred
to as hyphenates) principally employed to perform
functions not covered by Respondent’s collective-
bargaining agreements (which agreements provide for
the conditions of employment and the recompense of
writers who furnish certain writing services to the
television and theatrical industries), but who are never-
theless 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.”
Some hyphenates who allegedly violated one or more
of the strike rules were charged, tried before trial
boards of Respondent, and when convicted were
disciplined.
During this same period, Respondent also had and
enforced a policy, well known to the hyphenates, under
which Respondent refused to permit such hyphenate-
members to resign from membership prior to or during
the strike.
At the same time, many of the hyphenates, probably
most, were obligated to perform their primary man-
agerial and supervisory functions under personal ser-
vice 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
Originally one of the rules, later officially rescinded, provided
for the perpetual ostracism of any hyphenate working during the
strike, which would clearly have wrecked the further careers of
such persons. The impact of the rule itself, as well as the indication
of the implacable attitude which prompted it, were clearly coercive
of the hyphenates’ freedom of action.
57a
come in to perform their normal work during the strike.
In some cases, perhaps most, these primary functions
were also covered by collective-bargaining agreemeuts
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 per-
formance 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 writ-
ing function during the strike other than that which
had been commonly agreed in the past to be permissible
for hyphenates performing supervisory and manager-
ial functions. Indeed, the employers had determined in
advance not to require writing of the hyphenates whe
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, in-
deed, 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 per-
tinent part (Orig. brief pp. 11-12, emphasis in
original):
. . we believe that the record here supports an in-
ference that hyphenate Guild members who c,ossed
picket lines necessarily performed services of a non-
supervisory character which bring them within [the
Court of Appeals’ decision in Illinois Bell and Uali-
fornia Newspapers }.
... Virtually all of the hyphenate writers called as
witnesses by General Counsel conceded that they per-
formed only (a) through (h) writing functions
which, upen their view, were not strike defeating
because such services were outside the coverage of
the Guild contract.
... Rather, it is our contention that such writing
fails within the prohibitions of [Respondent’s strike
rules] and that the scope of such rules was legally
permissible. .. .
The permissible scope of the strike rules, as to hy-
phenates, can only be judged fairly in connection with
the production activities of the struck employers
which the Guild had the right to frustrate . . . the most
critical service of the producers is the finding and
participation in the hiring of writers . . . while this
is a statutory supervisional function, nevertheless, in
a strike situation the performance of this non-writ-
ing 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 principal recruiter of strike breakers.
In order to perform under his producer contract, the
hyphenate Guild member necessarily must place him-
self 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 arises from the continued per-
formance 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 man-
agerial 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 Respond-
ent’s counsel, during the disciplinary hearings, 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 re-
turned to work after the strike, he found no writing
In its supplementary brief, Respondents states that while it con-
siders the ‘‘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)
60a
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 satis-
fied that some writing had been done by an executive
who was not a member of Respondent. From this 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 avail-
able 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 em-
ployees during a strike (in union terminology ‘*strike-
breakers’’) see V. L. ER. B. v. Mackay Radio d Telegraph
Co., 304 U.S. 333, 345. Thus action by managerial or
supervisory employees in recruiting employees during a
strike would manifestly fall within the normal fune-
tions 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
6la
functions during the strike, hyphenate-members frus-
trated Respondent's strike strategy, or provided the
employers with more economic clout than they other-
wise might have possessed. Respondent cannot deny
the hyphenates the right to resign from membership,
and thus be free of the obligations of membership,
while at the same time argue that because the hyphen-
ates continued to be members they cannot be free from
the normal discipline imposed upon strike breakers.”’
It was well known among the hyphenates that Respond-
ent 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 op-
tion 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 hyphen-
ates and en pow are not reduced because the
exercise of rights might make Respondent'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’
managerial and supervisory functions (as was the situ-
ation in Florida Power) and would have benefited the
hyphenates 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, providifg 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-
ducers, Associate Producers, Directors, Story Editors,
Story Consultants, Script Consultants, Executive Story
Editors and Executive Story Consultants, as considered
hereinabove, are supervisors within the meaning of
Section 2(11) of the Act selected by their employers
to adjust grievances, and, in the case of the producer
function, to negotiate agreements with labor organiza-
tions within the meaning of Section 8(b)(1)(B) of
the Act. On the basis of the above discussion and the
record as a whole it is found that by issuing strike rules
designed to compel such hyphenates from going to
work during the strike called by Respondent, and by
meetings, personal contacts, telegrams, and phone calls
designed to restrain and coerce such hyphenates from
going to work during the strike, Respondent restrained
and coerced the hyphenates from performing man-
agerial and supervisory services for their employers
during the strike, including the adjustment of em-
ployee grievances and participation in collective bar-
gaining, and thus coerced and restrained those em-
ployers in the selection of representatives for collective
bargaining and the adjustment of grievances within
the meaning of Section 8(b)(1)(B); that those hy-
phenates involved in this matter who worked during
the strike performed managerial and supervisory
functions including the adjustment of grievances on
collective 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 restrained the employers in the selection
of their representatives 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 work-
ing during a strike cannot be held by the Board to
violate the Act. I disagree. It is clear that Respond-
ent’s action in this case violated the plain meaning of
the statute without the necessity of resort to statutory
exegesis. To illustrate: A person performing the fune-
tion of a director acts in a managerial or supervisory
capacity, which normally includes the adjustment of
grievances of actors, actresses, craft employees and
others. One occupying the position of a producer nor-
mally has a similar capacity and similar duties with
respect to employee grievances. In addition, if the
64a
film is being shot on distant location the producer bas
authority 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, Re-
spondent obviously coerced and restrained their em-
ployers in the selection of those specific producers and
directors for the purpose of collective bargaining and
the adjustment of grievances of employees working
during the strike within the plain meaning of the
statute. Similarly, those persons emploved as story
editors or in like ciassifications perform executive
functions normally, and appear to have done so during
the strike, in which the record indicates they were en-
gaged as supervisors and actual or potential represen-
tatives of their employers for the adjustment of griev-
ances.” Respondent, by coercing or restraining persons
in these classifications from going in to do their normal
work thereby actually coerced and restrained their
employers from selecting those persons as the em-
ployers’ representatives for the adjustment of griev-
ances and for collective bargaining during the strike.
The General Counsel also contends that Respondent’s
rule restricting the right of hyphenate-members to re-
sign from membership should also be found to violate
the Act. This raises what seems to me a quite important
and difficult issue, one which may well have different
„A previously noted, two executive story editors, Paris and
Trapnell, appear to have worked as executives during the strike.
According to the disciplinary transcript, Trapnell is a supervisor
over story analysts who apparently did not strike.
consequences for supervisors as distinguished from
rank and file employees.” I do not, however, have to
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
contention that certain issues should be referred to
arbitration and the complaint in this proceeding be
dismissed. I have determined that this contention
should be denied for the following reason:
1. The parties have not agreed that the issues pre-
sented by the complaint in this matter should be deter-
mined by arbitration. The bargaining agreements held
by Respondent which expired on or about March 4, or
shortly thereafter, contain no restriction upon Re-
spondent’s issuance of strike rules, or upon its right to
As to the rank and file employees, since they a- compelled by
law to accept labor organizations chosen by the majority in the unit,
and may be compelled to join or assist such unions even if violently
opposed to them, and to comply with their rules even if personally
obnoxious to the employees involved, it may well be argued that
such employees should be afforded reasonable opportunity at proper
times to resign their membership in such organizations and escape
the imposition of such rules. Some commentators who have con-
sidered the subject indicate that this is a likely direction of the law.
See Restrictions on the Right to Resign: Can a Member’s Freedom
to Escape the Union Rule Be Overcome by Union Boilerplate’, 42
Geo. Wash. L. Rev. 397 (1974) ; 26 Vand. L. Rev. 837 (1973); Union
Disciplinary Fines and the Right to Resign, 30 Wash. & Lee L. Rev.
664 (1973) ; 5 St. Mary's L. J. 176 (1973) 40 Geo. Wash. L. Rev.
330 (1971). There may be, as the Court of Appeals for the First
cireuit has indicated, ‘‘. a a limit of reasonableness beyond which
a union may not be permitted to go in holding captive its members.
See VL. R. B. v. Int l Unon, U.A.W., 297 F.2d 272, 276 (1961).
66a
restrain members to comply with its rules, or upon
Respondent’s right to discipline its members, or upon
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 hyphenates 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-
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 em-
ployers, but we are concerned with whether the Re-
spondent may legally restrain and coerce the hyphe-
nate-members from going to work, at the insistence of
their employers, to perform functions not covered by
Respondent’s contracts, and whether Respondent may
* Section 2 of Article 7 in certain expired agreements provided,
in pertinent part, that ‘‘If, after the expiration or other termination
of the effective term of this Basic Agreement, the | Respondent] shall
call a strike against any Company, then each respective current em-
ployment contract of writer members of [Respondent] (hereinafter
referred to as members) with such Company shall be deemed
automatically suspended, both as to service and compensation, where
such strike is in effect, and each such member of Respondent] shall
ineur no liability for breach of his respective employment contract
by respecting such strike cal!
67a
discipline such members for going to work in such
circumstances. No contractual basis appears and Re-
spondent 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 to 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
that Respondent could restrain or coerce the members
not to work, or, if the members did come in to work at
the employers’ insistence», that Respondent could dis-
cipline the members for doing so.
2. There is substantial doubt that Respondent’s ae-
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 hyphe-
nates, the disciplinary trials and the penalties imposed,
occurred after the termination of the bargaining agree-
Cf. Houston Mailers Union No. 36, etc. (Houston Chronicle),
199 NLRB No. 36, relied upon by Respondent, in which the Board
held that where the employer and the union there involved had
specifically agreed in their bargaining agreement that the union
shall not discipline the foreman, and where the only issue before
the Board concerned discipline of a foreman by the union, the Board
deferred to the arbitration process in accordance with the bar-
gaining agreement of the parties.
68a —
ments and at a time when neither Respondent nor the
emplovers 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 rela-
tion 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
abnegation of duty to tell the parties to start over again
before another tribunal when the proceeding has al-
ready been tried before the agency appointed by Con-
gress to hear and decide the issues.
Conclusions of Law
1. The employer members of the Association of
Motion Picture and Television Producers, Inc.,
American Broadcasting Companies, Inc., Columbia
Broadcasting System, Inc., National Broadcasting
Company, Inc., and QM Productions (herein collee-
tively 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 adjustment
of grievances, as found hereinabove, the Respondent
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 un-
fair iabor 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 execu-
tive functions of its hyphenate-members, drafted its
strike rules and enforced them with the intent of com-
pelling 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 hyphe-
nates who worked during the strike, the rules threat-
ened 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
Respondent's actions encourage a voluntary blacklist.
*
70a
Thus, in its letter to members explaining their options
on appeals from penalties imposed upon certain hy-
phenates who worked, Respondent stated, inter alia,
“There is obviously a stigma attached to expulsion
which might cause individual members of the [Re-
spondent] to refrain 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 disciplinary 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 acknowl-
edged that he was under no compulsion from Re-
spondent 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. How-
ever, the fact is that Respondent did suggest it, and it
is now impossible to disentangle the consequences flow-
ing from its actions. I shall recommend a broad order
in order to restore the status quo and remedy the vari-
ous effects of Respondent’s actions found to have vio-
lated 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 member-
ship 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
7la
a legal strike. However, here, where the hyphenates
have been forced to undergo the stigma of suspension
or expulsion by Respondent’s deliberate action in re-
fusing them a free choice to withdraw in a normal
manner prior to working during the strike, and where
Respondent has further suggested that members not
work with hyphenates who were expelled, I am con-
vinced 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 rejected the
penalties of suspension or expulsion. Inasmuch as the
record is incomplete as to the status of the other hy-
phenates charged, I shall recommend the normal re-
medial order as to all, without distinction between those
whose suspension or expulsion has already 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, ** Holly-
wood Reporter“ and Daily Variety“, as well as in
local papers of g-neral circulation. The record shows
that Respondent was careful to mail its strike rules,
directions, orders and instructions to all its members in
order to give those actions wide and personal service ;
and further that the matter of compulsion 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
72a
notice is clearly justified. However, I believe that this
can be accomplished through requiring 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 Re-
spondent 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 re-
quested, that there is any necessity that the notice be
read at Respondent’s membership meetings, in addi-
tion to the normal posting of the notice, and the mailing
and publication just considered.
There is a further request that Respondent be or-
dered 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 de-
liberately 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
—— ct
ee re”. nO — ee.
73a
law and the entire record, I issue the following recom-
mended : *
ORDER
Writers Guild of America, West, Inc., the Respond-
ent 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 col-
lective bargaining or the adjustment of grievances:
(1) by issuing rules, orders, directions or instruc-
tions in any form to any supervisor, executive or other
management personnel whose functions involve or may
involve collective bargaining or the adjustment of
grievances not to perform supervisory, managerial or
executive functions for such employer, or
(2) by threatening any such emplover representa-
tive with fines, suspension or expulsion from member-
ship, blacklisting, obstracism, or any other penalty or
reprisal for performing supervisory, managerial or
executive functions for such employer, or
(3) by citing or charging any such employer repre-
sentative with violation of any such rule, order, direc-
tion or instruction, or by summoning any such employer
In the event no exceptions are filed as provided by Section
102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
Order, and all objections thereto shall be deemed waived for all
purposes.
74a
representative before any committee, board, panel, or
tribunal to be tried for, or by trying any such employer
representative for violation of any such rule, order,
direction or instruction forbidding such represeniative
from performing supervisory, executive, or managerial
functions, or
(4) by fining or otherwise disciplining such em-
ployer representatives for performing supervisory,
executive, or managerial functions, or
(5) by enforcing in any other manner any such rule,
order, direction, or instruction.
(h) In any like or related manner restraining or
coercing any employer in the selection of representa-
tives for the purpose of collective bargaining or the
adjustment 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 representa-
tive 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.
Mantley, Herman S. Saunders, David Victor, Robert
A. Cinader, and Barry Crane, and any other employer
75a
representative as described in paragraph 2(a) above,
for the fines levied against them, with interest thereon
at 6 percent per annum.
(e) Advise Hugh Benson, Robert Blees, Cy Cher-
mack, Jon Epstein, David Levinson, John T. Mantley,
Herman 8. Saunders, David Victor, Robert A. Cinader,
and Barry Crane, and any other employer representa-
tive 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
records.
(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 au-
thorized 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, de-
faced, or covered by any other material.
In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
“POSTED BY ORDER OF THE NATIONAL LABOR RELA-
TIONS BOARD" shall be changed to read “‘ POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
76a
(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
(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 to comply
herewith.
Dated at Washington, D. C.
„ Swwyey J. Barpan
Sidney J. Barban
Administrative Law Judge
W US. Government Printing Office: 1977—229-020/63
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.