Intl. Brothd. of Teamsters, Local 222, 489 (1968)

INTL. BROTHD . OF TEAMSTERS , LOCAL 222 489

International Brotherhood of Teamsters , Chauffeurs,

Warehousemen and Helpers of America , Local No.

222 and Norman B. Cram and Twentieth Century-Fox Film Corporation (Party to the Agreement). Case 27-CB-434

October 31, 1968 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS

FANNING AND BROWN

On February 21, 1968, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed an answering brief to the Respondent's exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner' insofar as consistent herewith.

We agree with the Trial Examiner's conclusion that the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act, which in effect prohibits a labor organization from causing employers to discriminate against employees in violation of Section 8(a)(3) of the Act.

We base our finding on the Union's unlawful hiring agreement, arrangement, or understanding with the motion picture producers covering the Kanab area, and the Union's discriminatory operation of this agreement specifically with respect to refusing to clear or refer employee Cram for employment by motion picture producer Fox on and after April 28, 1967. It is clear that since at least 1964 the producers, when operating in the Kanab area, customanly asked the Union for the employees they needed.

It is likewise clear that the Union fully and knowingly cooperated in filling these requests, normally by giving first preference to union members. It is also clear that the Union has been discriminatorily refusing Cram's efforts to secure union membership or clearance in order to work for motion picture producer Fox.

We note particularly by way of background, that when Cram in 1965 started working for a producer,

Union Official Johnson and a producer's representative together stopped him, said that he was violating the producer's contract by working without a union card, and forced him off the job.

On April 27, 1967, motion picture producer Fox advised Cram that it had work for him if he obtained the necessary clearance from the Union, and on April 28 Cram so advised the Union. Without denying Cram's assertion about the necessity of union clearance in order to work for Fox, Union SecretaryTreasurer Case replied that Cram had been denied membership. On or about June 9, Union representative LeGrand Hamblin told Cram that he could have used Cram on a job if Cram would get straightened with the Union; but that he had been instructed by Union agent Smith to 'hire anybody in Kanab but Norm Cram.' Later that month Cram filed the charge on which this case is based.

On these facts we are convinced that the Union was not merely a passive beneficiary of the producers' unilateral decision to secure employees through the Union, but was in fact an active participant in a mutual scheme to give union members employment preference. Most significantly, in the spring of 1967 union representatives in effect agreed with Cram's statement that union membership was necessary before Cram could perform his job with motion picture producer Fox; and somewhat later Cram was advised by a union representative that the Union was in a position to hire employees needed by producers in Kanab, but that Union agent Smith had told him not to hire Cram.

The Union argues in effect that it did nothing more than passively acquiesce in the unilateral hiring practice or policy generally followed by Fox and the other producers, and that its own conduct did not violate the Act even if the producers violated the Act by such actions. In view particularly of the facts set forth above, which show clearly that the Union actively participated in effectuating a mutual agreement, arrangement, or understanding for preferential hiring of union members, we find no merit in this argument, and agree with the Trial Examiner's conclusion that the Union violated Section 8(b)(2) and (1)(A) of the Act.

I The Trial Examiner , apparently inadvertently , referred to the date Cram was 'quarrelsome ' or a troublemaker ' However, we do not of Cram's first conversation with Parry as July 1964 , the correct date is adopt his further observation that such considerations can never be a January 20 , 1964. legitimate concern of unions in the referral of applicants for jobs.

We agree with the Trial Examiner that there is no credible evidence 173 NLRB No. 81 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local No.

222, Salt Lake City, Utah, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified:

1. Substitute the following for paragraph 1(a) of the Trial Examiner's Recommended Order (a) Giving effect to its agreement, arrangement, or understanding with motion picture producers with respect to hiring in the Kanab area, or otherwise causing or attempting to cause Twentieth CenturyFox Film Corporation or any other employer to discriminate against employees in the Kanab area in violation of Section 8(a)(3) of the Act.

2. Substitute the following for the first indented paragraph of the notice:

   WE WILL NOT give effect to our agreement, arrangement, or understanding with motion picture producers with respect to hiring in the Kanab area, or otherwise cause or attempt to cause Twentieth Century-Fox Film Corporation or any other employer to discriminate against employees in the Kanab area in violation of Section 8(a)(3) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   DAVID KARASICK, Trial Examiner. This proceeding under Section 10(b) of the National Labor Relations Act, herein called the Act, was heard in Salt Lake City, Utah, on November 15, 16, and 17, 1967, pursuant to due notice. The complaint, dated August 29, 1967, was based upon a charge filed on June 23, 1967, by Norman B Cram, an individual, and alleged that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act.

   Upon the entire record in the case,' including briefs filed by the Respondent and the General Counsel, and from my observation of the demeanor of the witnesses, I make the following I [Certain errors in the transcript have been noted and corrected 1 FINDINGS OF FACT

   I THE BUSINESS OPERATIONS OF THE EMPLOYER

   Twentieth Century-Fox Film Corporation, herein called Fox, a Delaware corporation, maintains its principal office in New York City and studios in Los Angeles, California. Fox is engaged in the production and distribution of motion pictures and annually distributes films valued in excess of $100,000 directly across state lines within the United States and to territories thereof and to foreign countries. Fox is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 222, herein variously called the Respondent, the Union or the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES ALLEGED

   A The Facts 1. The hiring practice Kanab, a community of approximately 1,250 persons, is located in a remote section of southern Utah approximately 300 miles from Salt Lake City, in an area used by Fox and other companies for the filming of motion pictures Production generally begins in the spring and ends in the fall of the year Some of the personnel and equipment required for filming is brought from the Hollywood studios of the producers and the remainder is secured in and around the vicinity of Kanab. As a result, many of the residents of Kanab seek employment from the producers as a supplement to their regular income during the production season.

   Fox is one of a number of motion picture companies who are parties to a multiemployer collective-bargaining agreement with Local 399 of the Teamsters, herein called Local 399, a sister local of the Respondent This contract, in effect at all material times herein, covers the operations of the parties in various western states, including Utah and Arizona The practice followed under this agreement is that motor vehicles brought by the producers from Hollywood to movie locations in Utah or Arizona are driven by members of Local 399. Some vehicles used during the filming of movies in these locations, however, are rented by the producers in the local areas where the filming occurs When this happens the motion picture producers hire local persons to drive the rented equipment. As a general practice followed since at least 1964, the producers secure drivers for motor vehicles in the Kanab area from the INTL. BROTHD . OF TEAMSTERS , LOCAL 222 steward or contact man 2 of the Respondent The contact men, by...