Service & Maintanance Employees' Union, No. 399, 1033 (1964)

DECISION AND ORDER

On January 23, 1964, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision.

Thereafter, exceptions and a brief were filed by the General Counsel;

the Respondent filed cross-exceptions and a brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown].

i The Respondent's request for oral argument is hereby denied, as the record, including the exceptions, cross-exceptions, and briefs, adequately presents the issues and positions of the parties 148 NLRB No. 99.

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, the cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings and recommendation of the Trial Examiner.

Without adopting all the reasoning and legal conclusions of the Trial Examiner, we agree that article IV, the contract provision in -question, is not violative of Section 8(e). In accordance with the contract interpretation of the arbitrator, to whose determination we attach substantial weight, we find that article IV, which reserves to employees of United Artists the sale of souvenir books in connection with any showing at its theaters, was designed to define and protect unit work, and is to be construed as a complete ban on the performance ,of such work by nonunit employees. As this contractual restriction was designed to regulate the relations between United Artists and its employees in the appropriate bargaining unit represented by Respondent Union, and as it was aimed at the preservation of work opportunities for the employees in such unit, it is quite clearly outside the intended interdiction of Section 8(e). As stated in Ohio Valley 'Carpenters District Council (Cardinal Industries), 136 NLRB 977, 985-986:

. .. Section 8(e) was basically designed to close what its proponents considered a loophole in the secondary boycott provisions of the Taft-Hartley Act . . . . Section 8(e) was intended to outlaw what is in effect a 'secondary boycott in futuro,' that is, 'an agreement by an employer to permit a secondary boycott to be conducted against him.' II Leg. Hist. 1859 (1959). .. .

[T]he delineation and exclusive assignment to employees . . . of specified work tasks cannot itself be regarded as unlawful; indeed . . . it is necessary if the contract is to be meaningful. .. .

[I]t has long been recognized that restrictions on subcontracting work out to another employer, or on otherwise having done elsewhere work usually performed by employees in a bargaining unit, is a mandatory subject of collective bargaining and a proper matter for contract inclusion. . . . Contractual restrictions of this character undoubtedly impinge upon an employer's freedom to engage in business with others. But where they do no more than define and reserve [work] for the exclusive performance of employees in a bargaining unit . . . they have a different function from the contracts that were the targets of 8(e). Restrictions designed to confine work to unit employees are immediately related to terms and conditions of employment within the unit.

SERVICE & MAINTENANCE EMPLOYEES' UNION, NO. 399 1035

They anticipate no work to be performed by persons other than employees of the immediate employer. Their sole, direct, and primary aim is to protect and preserve work and therefore jobs for employees within the bargaining unit. In these respects limited restrictions of that character are quite different in purpose and intent from the 'hot goods' clauses 8(e) was designed to ban-that is, the blacklisting of specified employers or classes of employers because their products or labor policies are objectionable to the union.

'See also Milk Drivers' Union Local 753, etc. (Pure Milk Association), 141 NLRB 1237,1240.

Concluding as we do that Section 8(e) is not applicable to this situation, we shall dismiss the complaint.

[The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

Upon a charge filed on January 24, 1963, by Kal Efron, doing business as Superior Souvenir Book Company, herein called both the Charging Party and Superior, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, on April 29, 1963, issued a complaint alleging that Service and Maintenance Employees' Union, Local No. 399, AFL-CIO, herein called both the Respondent and the Union, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(e) and Section 2(6) and (7) of the National Labor Relations Act, as amended . Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent Union, and copies of the complaint and notice of hearing were served upon the Charging Party With respect to the unfair labor practices , the complaint alleges, in substance, that the Respondent Union entered into, maintained , and gave effect to certain provisions in its multiemployer Southern California Theatre Amusement agreement with United Artists Theatre Circuit, Inc., herein called United, pursuant to which United has expressly or by implication , ceased, or refrained from, and have agreed to cease or refrain from, handling, using, transporting, or otherwise dealing in the products of Superior and from doing business with Superior and other persons.

Pursuant to notice, a hearing was held in Los Angeles , California, on August 5 and 6, 1963, before Trial Examiner Henry S. Salim. The parties filed briefs on September 10, 1963, which have been fully considered Upon the basis of the entire record in the case, including the stipulations and the briefs, I make the following:

FINDINGS OF FACT

  1. COMMERCE Superior Souvenir Book Company, whose principal office is located in New York,

New York, is engaged in the business of publishing and distributing souvenir booklets and programs at theaters and other places of amusement at various places throughout the United States and Canada. In the operation of its business, Superior annually derives a gross income in excess of $500,000 from the publication and distribution of these booklets and programs, and annually ships souvenir booklets and programs valued in excess of $50,000 from the States of Indiana and Missouri directly to points located in other States of the United States. United Artists Theatre Circuit, Inc. (herein called United ), a Delaware corporation with its principal office in New York, New York, is engaged in the operation of motion picture theaters in many States of the United States , including a theater in Los Angeles, California, operated under the name of Egyptian Theatre, and other theaters in the State of California. In the operation of its California theaters, United annually does a gross volume of business in excess of $500,000, and annually transmits more than $500,000 from its California operations to its office in New York, New York.

Metro-Goldwyn-Mayer, Inc., herein called MGM, a corporation with its principal office in New York, New York, is engaged in the distribution of motion picture films to theaters throughout the United States and in foreign countries. In the course of its business, MGM annually receives more than $1,000,000 from its operations in the State of California.

It is found, accordingly, that Superior, United, and MGM are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.

It. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of Section 2(5) of the Act.

  1. THE ALLEGED UNFAIR LABOR PRACTICES Background and Issue Moving pictures known as 'roadshows' are exhibited on a two-performances-aday basis. At this type of show programs are sold in the theater lobby. The Respondent Union has represented program sellers for some years. Where the services of a program salesman are required, the Union customarily is requested to refer a salesman to the theater. The Union then selects on the basis of a seniority system a salesman from its registration list whom it dispatches to the theater.

The Charging Party, Superior, had the program concession at one of United's theaters with which the Union had a collective-bargaining contract. This contract between the Union and United Theatre has a provision which reads as follows:

Article IV Section 3. Job Security. In the event a souvenir book is sold in connection with any showing at any of the theatres of the Employer, it is agreed that the sale, work, and duties of selling such souvenir book shall be performed only by employees of the Employer. Such employees shall be paid in accordance with a a schedule hereinafter negotiated and shall be covered by the terms and conditions of this Agreement.

In the event the Employer find that it is uneconomical to employ such employees for the sale of such souvenir books, the Union and the Employer will attempt to reach a mutually satisfactory arrangement regarding the performance of such sale or duties, and the Employer will not contract regarding the sale of said souvenir books unless mutually agreed upon by the Employer and the Union.

The theater owner, United, subcontracted the right to sell programs to Superior, the Charging Party, without consulting with the Union as provided for in article IV, section 3, supra. When the Union objected, the matter was referred to arbitration and the...

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