SAG-AFTRA New York

National Labor Relations Board - Board Decisions

Aug 31, 2020

370 N.L.R.B. 14 (N.L.R.B. 2020)

370 NLRB No. 14
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
SAG‒AFTRA New York (Various Employers) and
Benjamin Scott Hauck. Case 02‒CB‒242132
August 31, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On April 22, 2020, Administrative Law Judge Lauren
Esposito issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, the Respondent
filed an answering brief, and the General Counsel filed a
reply brief. In addition, the Respondent filed cross-excep-
tions with supporting argument, and the General Counsel
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
For the reasons explained below, we disagree with the
judge’s conclusion that the General Counsel met his bur-
den to establish Board jurisdiction in this case. Accord-
ingly, we dismiss the complaint, and we do not reach the
issue of whether the judge correctly found that the Re-
spondent did not violate Section 8(b)(1)(A) of the Act
when it refused to allow Charging Party Benjamin Hauck
to attend a Wages and Working Conditions meeting on
May 8, 2019.
I. BACKGROUND
The Respondent is the New York local of the national
union Screen Actors Guild–American Federation of Radio
and Television Artists (SAG‒AFTRA), which represents
approximately 160,000 professional actors, singers, danc-
ers, and recording artists nationwide who perform in tele-
vision and film productions. SAG‒AFTRA negotiates
collective-bargaining agreements on behalf of those it rep-
resents with the Alliance of Motion Picture and Television
Producers (AMPTP), a multiemployer association com-
prised of approximately 350 employers. Picrow Stream-
ing (Picrow) is an employer-member of the AMPTP and
1 Picrow is a California corporation with a principal place of business
in Los Angeles. The commerce questionnaire indicated that Picrow pro-
vided services valued in excess of $50,000 directly to customers located
outside of California, purchased and received goods valued in excess of
$50,000 from directly outside of California, and purchased and received
has authorized the AMPTP to represent it in negotiating
and administering collective-bargaining agreements.
Charging Party Benjamin Scott Hauck had recently per-
formed work for, and been paid by, Picrow.
II. THE JUDGE’S DECISION
Before the administrative law judge, the Respondent ar-
gued that the General Counsel had failed to establish that
Picrow satisfied the Board’s interstate commerce jurisdic-
tional requirements. The General Counsel’s evidence that
Picrow met these requirements consisted of a completed
commerce questionnaire, dated February 4, 2019, that
Picrow had submitted in connection with an earlier
charge. Although the questionnaire indicated that
Picrow’s business activity satisfied the Board’s interstate
commerce jurisdictional threshold,1 the questionnaire did
not provide the time frame within which such activity took
place. Specifically, Picrow had not responded to the ques-
tion asking whether the commerce information was for the
calendar year, fiscal year, or preceding 12 months.
The judge found merit in the Respondent’s argument,
reasoning that the “business volume information con-
tained in the commerce questionnaire completed by
Picrow does not provide an unambiguous basis for the as-
sertion of jurisdiction.” Accordingly, the judge deter-
mined that the General Counsel had failed to meet his bur-
den to establish jurisdiction over Picrow based on its op-
erations.
Despite this finding, however, the judge concluded that
the General Counsel had met his jurisdictional burden
with regard to Picrow because Picrow was a member of
the AMPTP.2 The Respondent has cross-excepted to this
finding. We disagree with the judge and agree with the
Respondent that the General Counsel has failed to show
that jurisdiction may be asserted based upon Picrow’s
membership in the AMPTP.
III. ANALYSIS
The Board has chosen, as a discretionary matter, to limit
the exercise of its statutory jurisdiction to cases having a
substantial impact on interstate commerce. Electrical
Workers Local 48 (Kingston Constructors), 332 NLRB
1492, 1507 (2000), supplemented 333 NLRB 963 (2001),
enfd. 345 F.3d 1049 (9th Cir. 2003). Where, as here, a
labor organization is alleged to have violated Section
8(b)(1)(A) of the Act, the jurisdictional inquiry focuses on
the employer or employers whose operations are allegedly
goods valued in excess of $50,000 from enterprises who received those
goods directly from points outside of California.
2 The General Counsel does not except to the judge’s findings in this
regard. In its exceptions brief, the General Counsel agrees with the
judge’s conclusion that the Board has jurisdiction over Picrow through
its membership in the AMPTP.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
affected by the union’s unlawful conduct. Id. Further,
where, as here, the employer is engaged in a nonretail
business, the Board’s standard for asserting jurisdiction is
an annual outflow or inflow, direct or indirect, across state
lines of goods or services worth at least $50,000. Siemons
Mailing Service, 122 NLRB 81, 85 (1958). The Board as-
serts jurisdiction using the most recent calendar or fiscal
year preceding the unfair labor practice, or the 12-month
period immediately preceding the hearing before the
Board. See, e.g., Reliable Roofing Co., 246 NLRB 716,
716 fn. 1 (1979). The burden to establish Board jurisdic-
tion rests on the General Counsel. Laborers Local 1177
(Qualicare-Walsh, Inc.), 269 NLRB 746, 746 (1984).
The Board has recognized that jurisdiction over a mem-
ber of a multiemployer association may be determined
based upon the business activities of the association’s
membership in the aggregate. See Carpenters Local 102
(Millwright Employers Assn.), 317 NLRB 1099, 1101
(1995) (finding that the union’s contractual relationship
with a multiemployer association made the union’s hiring
hall one that has an impact on interstate commerce be-
cause the aggregated out-of-state purchases of the associ-
ation’s members were sufficient to satisfy the “impact on
commerce” test necessary for jurisdiction); Bufco Corp.,
291 NLRB 1015, 1016 (1988) (jurisdiction was asserted
over one of the two entities alleged to be an alter ego of
the other based on its membership in a multiemployer
group whose combined operations met the “impact on
commerce” test), enfd. 899 F.2d 608 (7th Cir. 1990).3
Applying this precedent, we agree with the Respondent
that the judge erred in finding that jurisdiction over Picrow
was established based upon its membership in the
AMPTP. To begin, the General Counsel neither pleaded,
nor argued to the judge, that Picrow’s membership in the
AMPTP could serve as a basis for jurisdiction. Moreover,
there is no evidence in the record before us of the business
activities of AMPTP’s membership in the aggregate. The
judge presumed that the employers in the AMPTP met the
commerce requirement because the AMPTP has a signifi-
cant number of members. But jurisdiction cannot be pre-
sumed. Where it is not admitted, it must be proven; the
General Counsel bears the burden of proof; and the record
is simply devoid of evidence necessary to base jurisdiction
3 See also Marble Polishers, Machine Operators and Helpers, Local
No. 121, AFL‒CIO (Miami Marble & Tile Company), 132 NLRB 844,
845 fn. 1 (1961) (asserting jurisdiction over employer that was a member
of a multiemployer association, where the evidence established that the
association met the Board’s jurisdictional requirements); Federal Stores
Division of Spiegel, Inc., 91 NLRB 647, 647‒648, 659‒660 (1950) (as-
serting jurisdiction based on proof of a qualifying total of business of
association members collectively, without requiring proof as to the indi-
vidual member), enfd. sub nom. Katz v. NLRB, 196 F.2d 411 (9th Cir.
1952).
on the combined volume of business of AMPTP’s mem-
bers.4 In sum, the evidence fails to show that the General
Counsel met his burden to establish jurisdiction over
Picrow in this matter. Accordingly, we dismiss the com-
plaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 31, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Nicole Oliver, Esq., for the General Counsel.
Evan Hudson-Plush, Esq. and Kelly L. Malloy, Esq. (Cohen,
Weiss and Simon, LLP), of New York, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, ADMINISTRATIVE LAW JUDGE. This case
was tried before me in New York, New York, on January 21,
2020. On May 20, 2019, Benjamin Scott Hauck filed a charge
in Case No. 02‒CB‒242132, against SAG‒AFTRA New York1
(SAG NY or the Union). On November 5, 2019, the Regional
Director, Region 2, issued a complaint and notice of hearing al-
leging that on or about May 3, 2019, SAG NY breached its duty
of fair representation by refusing to allow Hauck to attend meet-
ings to prepare for collective-bargaining negotiations because
Hauck was a financial core nonmember, in violation of Section
8(b)(1)(A) of the Act. SAG NY filed an answer on November
18, 2019, denying the complaint’s material allegations.
On the entire record, including my observation of the
4 The General Counsel requests that the Board take notice of decisions
in which the Board asserted jurisdiction over AMPTP’s members, but
there is no evidence the employers in the cited decisions remain AMPTP
members. The most recent decision finding jurisdiction based on
AMPTP’s aggregate economic activity is from 1989.
1 The Respondent Union’s full name is Screen Actors Guild–Ameri-
can Federation of Television and Radio Artists New York. (Tr. 35; Jt.
Exh. 3(a), p. 1.)
SAG‒AFTRA NEW YORK 3
demeanor of the witnesses, and after considering the briefs filed
by Counsel for the General Counsel (General Counsel) and SAG
NY, I make the following
FINDINGS OF FACT
I. JURISDICTION
General Counsel and SAG NY have stipulated and I find that
at all material times Picrow Streaming (Picrow), a California
corporation with a principal place of business in Los Angeles and
an office and place of business located in Brooklyn, New York,
has been engaged in the production of film and television pro-
gramming. (Jt. Exh. 1.) SAG NY denied knowledge or infor-
mation sufficient to form a belief as to the complaint’s allegation
that during the preceding 12 months Picrow provided services
valued in excess of $50,000 directly to customers outside of the
State of New York. SAG NY also denied that at all material
times Picrow has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. (GC Exh.
1(c, e).)
General Counsel and SAG NY have further stipulated that
Picrow is a member of the Alliance of Motion Picture and Tele-
vision Producers (AMPTP), an organization comprised of mo-
tion picture and television producers operating in various states,
which represents its members in negotiating and administering
collective-bargaining agreements with labor unions, including
SAG NY. (Jt. Exh. 1.) Charging Party Benjamin Scott Hauck
testified at the hearing that he had recently performed work for
and been paid by Picrow. (Tr. 15.)
General Counsel and SAG NY have stipulated and I find that
at all material times, SAG NY has been a labor organization
within the meaning of Section 2(5) of the Act. (Jt. Exh. 1.)
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
Screen Actors Guild–American Federation of Radio and Tel-
evision Artists (SAG) represents 160,000 professional actors,
singers, dancers, and recording artists nationwide who perform
in television and film productions. (Tr. 35‒36.) SAG negotiates
collective-bargaining agreements on its members’ behalf with
the AMPTP, an employer association comprised of approxi-
mately 350 employers. (Tr. 36‒37.) The collective-bargaining
agreement between SAG and the AMPTP is referred to as the
TV/Theatrical Basic Agreement. (Tr. 37.) The most recent
TV/Theatrical Basic Agreement took effect in 2017 and expires
on June 30, 2020. (Tr. 22, 38‒39.) SAG’s highest governing
body is the National Board, which consists of 80 members se-
lected in a biannual election. (Tr. 37.) SAG has approximately
25 locals throughout the country; the instant case involves
SAG’s New York local. (Tr. 44.)
Charging Party Benjamin Scott Hauck is an actor and was a
full member of SAG from 2000 until July 2015, when he re-
signed and became a financial core member who pays an agency
fee. (Tr. 14‒16; Jt. Exh. 2; R. Exh. 1.) General Counsel called
Hauck as a witness at the hearing. Justin Touretz, SAG’s
2 “Wages and Working Conditions” will subsequently be referred to
as “W&W”
Associate General Counsel, testified on behalf of the Union. (Tr.
35‒36.)
B. The Collective Bargaining Process and SAG’s Preparation
for Contract Negotiations
SAG conducts collective bargaining with respect to multi-em-
ployer, national agreements such as the TV/Theatrical Basic
Agreement pursuant to Article XI of its Constitution. (Tr. 38‒
39; Jt. Exh. 3(a), p. 37.) For the negotiation of such agreements,
SAG’s National Board appoints two committees—a Wages and
Working Conditions2 Committee to develop bargaining pro-
posals, and a Negotiations Committee to conduct negotiations.
(Jt. Exh. 3(a), p. 37.) The National Board determines policies
and procedures for conducting negotiations, and approves pro-
posals developed by the W&W Committee. Id. SAG locals con-
duct independent local meetings and provide proposals they have
approved to the W&W Committee, which then submits a pack-
age of selected proposals to the National Board. (Tr. 40‒41, 45.)
The National Board then makes the final determination as to
which proposals will be pursued in collective bargaining. (Tr.
41.)
As discussed above, the most recent TV/Theatrical Basic
Agreement is set to expire on June 30, 2020. On April 13, 2019,
the National Board appointed a W&W Committee consisting of
17 members to develop proposals for a successor TV/Theatrical
Basic Agreement. (Jt. Exh. 6; Tr. 39‒40.) The National Board
further established a W&W process in order to address current
and anticipated industry trends and solicit potential bargaining
proposals. (Jt. Exh. 6, p. 8; Tr. 39‒40.) Touretz described the
components of the W&W process during his testimony, which
are generally undisputed. The process begins with a meeting and
presentation by SAG’s chief economist to discuss general trends
in the film and television industry and the market, their potential
impact on production, and the subsequent effect on performer
earnings. (Tr. 40‒42.) Specific bargaining proposals are not so-
licited. (Tr. 42.) SAG‒NY conducted this meeting, entitled
“Outlook for Scripted Dramatic Live Action Entertainment,” on
May 8, 2019. (Tr. 42; Jt. Exh. 5, p. 1‒2.) The next week, SAG
NY held a number of New York W&W Committee meetings,
during which members could discuss topics and potential pro-
posals with Union staff. (Tr. 43; Jt. Exh. 5, p. 3‒4.) SAG also
held meetings by caucus for performers focused on certain spe-
cific types of work, such as background, stunt work, singing, and
dancing. (Tr. 43‒44; Jt. Exh. 5, p. 4‒5.) During these two sets
of meetings, anyone in attendance may suggest a bargaining pro-
posal, and the attendees vote on the proposals raised; proposals
selected by vote are added to a report which is forwarded to the
National W&W Committee. (Tr. 44.)
Touretz testified that only SAG members, as defined in SAG’s
Constitution, are permitted to attend SAG NY W&W process
meetings. (Tr. 42‒43, 53‒54; see also R. Exh. 3; Jt. Exh. 3(a),
p. 3‒5.) In order to establish their membership to attend a meet-
ing, individuals must present a membership card or use the
SAG‒AFTRA app on their phones. (Tr. 53‒54.)
Touretz testified without contradiction that during the 2019
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
W&W process, 147 proposals were submitted by SAG’s locals
to the National W&W Committee, 23 of which originated with
SAG NY. (Tr. 45.) Twenty of the 147 proposals submitted were
recommended by the National W&W Committee to the National
Board, four of which originated with SAG NY. (Tr. 45.) The
National Board voted to approve the package of 20 proposals
recommended, with a minor change to only 1, and the proposals
were provided to the National Negotiating Committee to be pre-
sented in collective bargaining. (Tr. 46.) At the time of the hear-
ing in the instant case, negotiations had not yet begun. (Tr. 46.)
Touretz also testified regarding the Union’s efforts to ensure
that its priorities in bargaining and potential proposals are not
disclosed to employers prior to the inception of bargaining itself.
The appendix to SAG’s Constitution listing membership rules
includes a rule stating that Union officers presiding at meetings
are
empowered to invoke a rule of confidentiality with regard to
any subject to be discussed which is deemed to be of a confi-
dential nature, on which outside discussion might be detri-
mental to the best interests of the members of the Union.
(Tr. 46‒47; Jt. Exh. 3(a), p. 50, ¶ 10.) Touretz testified that mem-
bers who participate in any aspect of the W&W process are
therefore required to sign a Confidentiality Agreement requiring
that they refrain from disclosing information obtained in connec-
tion with the Union’s W&W process to individuals other than
members of the Negotiating Committee, SAG officers, or neces-
sary staff. (Tr. 47‒48; R. Exh. 2.) The Confidentiality Agree-
ment further provides that violations could result in the imposi-
tion of internal union discipline. (Tr. 49; R. Exh. 2.) Touretz
testified that nonmembers are not subject to the confidentiality
provision of the membership rules contained in SAG’s Constitu-
tion. (Tr. 49.) As a result, if nonmembers were permitted to
attend W&W process meetings, the only method available to the
Union to ensure that nonmembers kept the W&W process confi-
dential would be to enter into nondisclosure agreements enforce-
able only in court. (Tr. 49‒50.) Touretz testified that enforce-
ment of nondisclosure agreements in court would be a more
cumbersome and difficult process than the internal Union disci-
plinary procedures applicable to members. (Tr. 49‒50, 56.)
The evidence establishes that nonmembers, as well as mem-
bers, may submit bargaining proposals through an e-mail address
the Union establishes specifically for that purpose. (Tr. 50; R.
Exh. 3.) Hauck testified that he submitted approximately 23 e-
mails regarding proposals during the W&W process preceding
negotiations for the 2017‒2020 TV/Theatrical Basic Agreement.
(Tr. 21.) The SAG NY public website also contained an e-mail
address for both members and nonmembers to “submit proposal
recommendations” in connection with the 2019 W&W process,
with a deadline for doing so. (Tr. 50‒52; R. Exh. 3; Jt. Exh. 5,
p. 5.) Touretz testified that he had participated in meetings
where proposals submitted via the e-mail address were consid-
ered. (Tr. 50.) Touretz stated that the Union does not
acknowledge receipt of proposals submitted by e-mail with a
confirmation, nor does it notify the individual submitting the
3 General Counsel and SAG NY stipulated that Bennett is an agent of
the Union pursuant to Sec. 2(13) of the Act. (Jt. Exh. 1.)
proposal by e-mail when their proposal is discussed during the
W&W process. (Tr. 54; see also Tr. 22.) While the individual
submitting a proposal may include arguments in their e-mail sub-
mission for pursuing the proposal in negotiations, if they are not
permitted to attend W&W process meetings the e-mail submis-
sion is their only opportunity to advocate for the proposal. (Tr.
22, 54.)
C. SAG’s Interactions with Hauck in Connection with Prepa-
rations for Contract Negotiations
Hauck testified that in April 2019, he saw information on the
SAG or SAG NY website announcing the W&W process for up-
coming collective-bargaining negotiations with the AMPTP, be-
ginning with a meeting on May 8, 2019, for members in good
standing. (Tr. 23‒25; GC Exh. 3(a‒b).) On May 3, 2019, Hauck
sent a letter to SAG NY stating that he was a member of the
TV/Theatrical Basic Agreement bargaining unit and wished to
attend the May 8, 2019 W&W process meeting. (Tr. 27; Jt. Exh.
4.) Hauck stated that although he was a “member of the Union
in good standing” pursuant to the TV/Theatrical Basic Agree-
ment, he was an agency fee payer, and therefore did not have a
SAG‒AFTRA card and was not permitted to use the SAG‒
AFTRA app to enter the meeting. (Tr. 27; Jt. Exh. 4.) Hauck
asked that he be permitted to attend the meeting without the card
or the app. Hauck further asked that the Union provide its ra-
tionale for excluding him in the event that he was not permitted
to attend. (Jt. Exh. 4.)
Later that day, Jeffrey Bennett, SAG NY’s chief deputy gen-
eral counsel and executive director,3 responded to Hauck by e-
mail, stating, “You are actually a fee paying non-member, and
not a member in good standing. Only members may attend our
W&W meetings. If you would like to become a member, please
let us know.” (Jt. Exh. 4.) Two hours later, Hauck wrote to Ben-
nett asking that he reconsider, stating that while he did not meet
the criteria for membership pursuant to the Union Constitution,
he was a “member in good standing” pursuant to the
TV/Theatrical Basic Agreement. (Tr. 28‒29; Jt. Exh. 4.) Soon
after, Bennett sent Hauck another e-mail stating, “You will not
be permitted to attend.” (Tr. 29; Jt. Exh. 4.) Touretz testified
that Hauck’s request to attend the May 8, 2019 meeting was de-
nied because Hauck was not a member of the Union as defined
in the SAG Constitution. (Tr. 42‒43.)
Hauck testified that although he subsequently became aware
of additional W&W process meetings in May and June 2019, via
the SAG website, he did not ask to attend them because Bennett
had told him that they were limited to members in good standing.
(Tr. 30‒31.) Hauck also testified that although he had bargaining
proposals he wanted to submit to the Union, he did not do so
because he did not receive any response to the e-mails he had
submitted in connection with the 2017 W&W process. (Tr. 31‒
32.) In addition, Hauck testified that in May and June 2019, he
was not aware of any e-mail address for the submission of pro-
posals for upcoming negotiations with the AMPTP; the e-mail
address he had at the time contained the year “2017,” so he as-
sumed that it would no longer be effective.4 (Tr. 32.)
4 As discussed above, the SAG website materials regarding the 2019
W&W process meetings contained an e-mail address for the submission
of proposal recommendations. (R. Exh. 3; Jt. Exh. 5, p. 5.)
SAG‒AFTRA NEW YORK 5
III. DECISION AND ANALYSIS
A. Jurisdiction
The Board’s jurisdiction to hear and decide cases arising un-
der the National Labor Relations Act is engendered by an under-
lying labor dispute which burdens or obstructs interstate com-
merce. See, e.g., Electrical Workers Local 48 (Kingston Con-
structors), 332 NLRB 1492, 1507 (2000), citing NLRB v. Fain-
blatt, 306 U.S. 601 (1939). Although this standard is “extremely
broad,” the Board as a discretionary matter has limited its juris-
diction to disputes which have a “substantial” impact on inter-
state commerce by establishing minimum interstate “inflow” and
“outflow” volumes which vary with the nature of the business
involved. See generally, Siemons Mailing Service, 122 NLRB
81 (1959). Where a labor organization is alleged to have violated
Section 8(b)(1)(A) of the Act, the Board’s jurisdiction is contin-
gent upon application of the discretionary jurisdictional stand-
ards to the employer or employers whose operations are alleg-
edly affected by the Union’s unlawful conduct. Electrical Work-
ers Local 48 (Kingston Constructors), 332 NLRB at 1507; see
also Carpenters Local 102 (Millwright Employers Assn.), 317
NLRB 1099, 1101 (1995). When the employer is engaged in a
nonretail business, the employer’s activities must involve an “in-
flow” or “outflow” of goods or services worth more than $50,000
across state lines, either “directly” or “indirectly.” Siemons
Mailing Service, 122 NLRB at 85. The $50,000 figure is “ex-
pressed in annual terms,” based upon “the most recent calendar
or fiscal year or on the figures of the immediately preceding 12-
month period.” Outline of Law and Procedure in Representation
Cases, § 1‒606; see also Siemons Mailing Service, 122 NLRB at
85‒86; Acme Equipment Co., 102 NLRB 153, 161‒162 (1953).
General Counsel bears the burden to establish the agency’s juris-
diction. See, e.g., Construction and General Laborers Local
1177 (Qualicare-Walsh, Inc.), 269 NLRB 746 (1984).
SAG NY contends that General Counsel has not established
jurisdiction in this matter. In particular, SAG NY asserts that
General Counsel’s evidence for establishing that Picrow meets
the discretionary standard for establishing jurisdiction is inade-
quate. General Counsel and SAG NY stipulated to the authen-
ticity and admissibility of a commerce questionnaire submitted
by Picrow in a previous case, dated February 4, 2019, and stipu-
lated to the truth of the assertions the commerce questionnaire
contains. (Jt. Exh. 1, Exh. A.) The commerce questionnaire
states that Picrow provided services valued in excess of $50,000
directly to customers located outside of California, purchased
and received goods valued in excess of $50,00 from directly out-
side of California, and purchased and received goods valued in
excess of $50,000 from enterprises who received those goods di-
rectly from points outside of California. (Jt. Exh. 1, Exh. A.)
However, SAG NY contends that because the questionnaire is
dated February 4, 2019, it does not cover the 12 months prior to
5 General Counsel states in her posthearing brief that Picrow “pro-
vides services valued in excess of $50,000 each year to customers di-
rectly outside the State of New York” (emphasis added), but does not
address the issue further. (Posthearing brief at p. 2, fn. 4.)
6 SAG-NY also objects to General Counsel’s relying upon the com-
merce questionnaire on the grounds that it was submitted in connection
issuance of the complaint in this case on November 5, 2019. In
addition, SAG NY points out that when completing the com-
merce questionnaire, Picrow did not respond to Item No. 9, re-
garding whether the commerce information provided pertains to
the “most recent” calendar year, 12-month period, or fiscal year.
As a result, SAG NY argues that the questionnaire does not pro-
vide adequate proof that Picrow’s business activities satisfied the
discretionary standard during the time period relevant for estab-
lishing jurisdiction.5
The business volume information contained in the commerce
questionnaire completed by Picrow does not provide an unam-
biguous basis for the assertion of jurisdiction. The Board has
stated that “the jurisdictional criteria expressed in terms of an-
nual dollar volume of business do not literally require eviden-
tiary data respecting any certain 12-month period of operation.”
Composite Energy Management Systems, Inc., 332 NLRB 420,
421 (2000); see also J & S Drywall, 303 NLRB 24, 24 fn. 2, 29
(1991), aff’d. in relevant part, 974 F.2d 1000, 1002 (8th Cir.
1992); Reliable Roofing Co., Inc., 246 NLRB 716 fn. 1 (1979),
stayed on other grounds 250 NLRB 456 (1980). Thus, the Board
has found that jurisdiction may be asserted based upon the fiscal
year, calendar year, or 12-month period preceding the unfair la-
bor practices alleged, “as well as the most recent calendar year
preceding the year of trial and decision.” Composite Energy
Management Systems, Inc., 332 NLRB at 421; see also J & S
Drywall, 303 NLRB at 29 and 974 F.2d at 1002; Reliable Roof-
ing Co., Inc., 246 NLRB at 716 fn. 1. However, in such cases
the Board has been able to identify a specific basis—whether fis-
cal year, calendar year, or 12-month period—for which the evi-
dence involving the relevant volume of business is applicable.
See, e.g., J & S Drywall, 303 NLRB at 29‒30 (using 12-month
period); Reliable Roofing Co., Inc., 246 NLRB at 716 fn. 1 (us-
ing fiscal year). Here, the only evidence submitted by General
Counsel to establish the volume of business performed by
Picrow is the February 4, 2019 commerce questionnaire, which
contains no information regarding the specific time frame for the
volume of business indicated.6 As a result, while the record es-
tablishes a volume of business sufficient to assert jurisdiction
had a relevant annual basis been identified, there was no evi-
dence introduced at the hearing to establish an annual basis upon
which to evaluate the volume of business.
However, I find that jurisdiction over Picrow may also be es-
tablished based upon the its membership in the AMPTP, a multi-
employer association which bargains with SAG NY and other
entertainment industry unions on its members’ behalf. In the
commerce questionnaire, Picrow states that it is a member of the
AMPTP, and in their stipulation entered into evidence at the
hearing, General Counsel and SAG NY agreed that Picrow “is a
member of the AMPTP and has authorized the AMPTP to repre-
sent it in negotiating and administering collective-bargaining
agreements.” (Jt. Exh. 1, Exh. A and at ¶ 3; see also GC Exh.
with a different charge. However, the Board has relied upon materials
which originated in connection with an earlier case to establish jurisdic-
tion, so long as they are admitted into the record in the case before it.
See Midland Rubbish Removal Co., 298 NLRB 991 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
1(c), ¶ 2(d).) The Board has long held that jurisdiction over a
member of a multi-employer association may be evaluated based
upon the business activities of the association’s membership in
the aggregate. See Carpenters Local 102 (Millwright Employers
Ass’n.), 317 NLRB at 1101; see also Stack Electric, 290 NLRB
575, 576‒577 (1988); Federal Stores Division of Spiegel, Inc.,
91 NLRB 647, 647‒648, 659‒660 (1950), enf’d. 196 F.2d 411
(9th Cir. 1952) (asserting jurisdiction over a Respondent based
on “the fact that its labor relations were carried on with respect
to an appropriate bargaining unit consisting of the employees of
a number of…enterprises, including at least one…which is
clearly of a type and size over which the Board customarily ex-
ercises jurisdiction” (emphasis in original)). The Board has
stated that employers in such cases, “[b]y throwing in their lot
with the multiemployer association, at least for the purposes of
negotiating a collective bargaining agreement…joined forces
with a group in an activity that has an indisputable impact on
commerce so far as the Act. . . is concerned.” Stack Electric, 290
NLRB at 577. Here, Touretz testified that the AMPTP is a multi-
employer association comprised of approximately 350 members,
with which SAG bargains in order to establish terms and condi-
tions of employment for the Union’s 160,000 members who
work in the television and motion picture industries. Hauck, for
example, testified that in addition to Picrow, he had worked for
Universal Television and Jay Squared Productions pursuant to
the TV/Theatrical Basic Agreement between the AMPTP and
SAG. Tr. 15, 20. The evidence overall therefore establishes that
the AMPTP “has an indisputable impact on commerce” pursuant
to the applicable caselaw discussed above. As a result, jurisdic-
tion may be asserted here based upon Picrow’s membership in
the AMPTP. See Federal Stores, 91 NLRB at 660.
B. SAG NY’s Refusal to Permit Hauck to Attend the May 8,
2019 W&W Process Meeting
A collective-bargaining representative is required “to repre-
sent all members of the bargaining unit, irrespective of their
membership in the union.” American Postal Workers (Postal
Service), 300 NLRB 34 (1990), citing Machinists Local 697
(Canfield Rubber), 223 NLRB 832, 834 (1976). Therefore, Sec-
tion 8(b)(1)(A) of the Act prohibits as “discriminatory” union
conduct which “effectively den[ies] to unit members fundamen-
tal rights of union representation,” including “access to griev-
ance procedures and exclusive union hiring halls.” American
Postal Workers (Postal Service), 300 NLRB at 34. In the context
of collective-bargaining negotiations, the Board has held that
nonmembers may be excluded from contract ratification votes
and procedures, as ratification is “an internal union matter
properly determinable by union members alone.” Branch 600,
National Assn. of Letter Carriers, 232 NLRB 263 (1977), enf’d.
595 F.2d 808 (D.C. Cir. 1979). So long as the union does not
delegate to its membership the overall responsibility “as exclu-
sive bargaining agent to formulate the employees’ position on
terms and conditions of employment,” exclusion of nonmembers
from the process does not violate Section 8(b)(a)(1)(A). Branch
6000, National Assn. of Letter Carriers v. NLRB, 595 F.2d at
812.
Thus, the Board has held that a union may generally exclude
nonmembers from meetings to formulate the union’s position
with respect to its dealings with an employer regarding terms and
conditions of employment for bargaining unit employees. See
American Postal Workers (Postal Service), 300 NLRB at 34‒35;
see also Branch 6000, National Assn. of Letter Carriers v. NLRB,
595 F.2d at 812. In American Postal Workers (Postal Service),
the union excluded nonmembers from a meeting to discuss the
employer’s “planned changes” in “special delivery routing,” in-
cluding the possible elimination of delivery routes and bargain-
ing unit work, and the union’s response. 300 NLRB at 34, 38‒
39. The union excluded two nonmembers from the meeting
based upon a policy that the union did not conduct meetings on
union property with nonmembers in attendance. Id. at 34, 39.
The ALJ found that the exclusion of nonmembers from the meet-
ing violated Section 8(b)(1)(A), but the Board reversed. Id. at
34‒35. Noting that no grievance was filed a result of the meet-
ing, the Board held that the union’s “exclusion of nonmember
unit employees from meetings at which possible reactions to job
issues are discussed” did not implicate any “right fundamental to
union representation.” Id. at 34.
In doing so, the Board distinguished Boilermakers Local 302
(Henders Boiler), 300 NLRB 28 (1990), and Branch 600, Na-
tional Assn. of Letter Carriers, 232 NLRB 263 (1977), enf’d.
595 F.2d 808 (D.C. Cir. 1979). American Postal Workers
(Postal Service), 300 NLRB at 34 fn. 3. In Boilermakers Local
302 (Henders Boiler) and Branch 600, National Assn. of Letter
Carriers, the Board found that the union violated Section
8(b)(1)(A) by excluding nonmembers from polls taken to select
among explicitly articulated options involving a specific term
and condition of employment affecting all of the employees in
the bargaining unit. See Boilermakers Local 302 (Henders
Boiler), 300 NLRB at 28, 29‒30, 32 (union conducted a poll of
members only when selecting Good Friday for its yearly floating
holiday); Branch 600, National Assn. of Letter Carriers, 232
NLRB at 263 (union excluded nonmembers from an election to
determine whether bargaining unit members would have fixed or
rotating days off). The Board reasoned that because the selection
process involved specifically enumerated terms and conditions
of employment, the poll and election “became a substitute for
negotiations,” eliminating “the union representation element,
and with it the propriety of limiting to union members a voice in
the choice.” Branch 600, National Assn. of Letter Carriers, 232
NLRB at 263 fn. 1; see also Boilermakers Local 302 (Henders
Boiler), 300 NLRB at 28 fn. 1; American Postal Workers (Postal
Service), 300 NLRB at 34 fn. 3.
The parties do not dispute that the instant case is controlled by
the Board’s decisions in American Postal Workers (Postal Ser-
vice), Boilermakers Local 302 (Henders Boiler), and Branch
600, National Assn. of Letter Carriers. As General Counsel ad-
mits, these precedents require dismissal of the instant charge.
(Posthearing brief at 8.) There is no dispute that the May 8, 2019
W&W process meeting Hauck sought to attend, entitled “Out-
look for Scripted Dramatic Live Action Entertainment,” con-
sisted of a presentation by SAG’s chief economist regarding gen-
eral trends in the industry and the market, the possible impact of
these trends on upcoming film and television production, and the
potential consequences for performer earnings. No vote regard-
ing any specifically enumerated term or condition of employ-
ment was contemplated at or occurred during the May 8, 2019
SAG‒AFTRA NEW YORK 7
W&W process meeting, such that the events of the meeting con-
stituted “a substitute for negotiations.” See Branch 6000, Na-
tional Assn. of Letter Carriers v. NLRB, 595 F.2d at 812 (distin-
guishing election to select among two specific options for days
off in that case from “a poll of the union membership to ascertain
its views prior to formulation of the negotiating posture for the
bargaining unit”). Indeed, no specific bargaining proposals were
solicited or discussed at all. As a result, pursuant to American
Postal Workers (Postal Service), SAG NY did not violate Sec-
tion 8(b)(1)(A) by refusing to permit Hauck to attend the May 8,
2019 W&W process meeting because he was not a member of
the Union.
General Counsel proceeds in her posthearing brief at pages 8
through17 to offer various arguments for the Board’s overruling
American Postal Workers (Postal Service) and the related cases
discussed above.7 However, as an administrative law judge, I
am required to apply existing Board precedent that has not been
overruled by the Board itself or by the Supreme Court. See Path-
mark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco, Inc.,
273 NLRB 746, 749 fn. 14 (1984). Here that precedent requires
that the complaint be dismissed.
CONCLUSIONS OF LAW
1. SAG‒AFTRA New York is a labor organization within the
meaning of Section 2(5) of the Act.
2. SAG‒AFTRA New York has not violated the Act in any
manner alleged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended
ORDER8
The complaint is dismissed.
Dated, Washington, D.C. April 22, 2020
7 The charge in this case was initially dismissed by the Regional Di-
rector on August 27, 2019. (Jt. Exh. 7(a).) On September 7, 2019, Hauck
appealed, and on September 27, 2019, the Regional Director revoked his
dismissal and stated that certain issues involved must be submitted to the
Division of Advice for guidance. (Jt. Exh. 7(b).) Subsequently, on No-
vember 5, 2019, the complaint issued.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.