International Photographers Local 659

National Labor Relations Board - Board Decisions

Jul 1, 1980

250 N.L.R.B. 367 (N.L.R.B. 1980)

INTERNATIONAL. PHOTOGRAPHERS. IO()CAI 659
International Photographers of the Motion Picture
Industry, Local 659, International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada (Medway Productions, Inc.) and Jon
Else and T2Michael Anderson. Cases 20-CB-
4770 and 20-CB-4803
July 1, 1980
DECISION AND ORDER'
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDAL E
On December 14, 1979, Administrative Law
Judge Max Rosenberg issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charging Parties filed answering
briefs in support of the Administrative Law Judge's
Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
International Photographers of the Motion Picture
Industry, Local 659, International Alliance of The-
atrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada,
its officers, agents, and representatives, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(b):
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950),. enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and rind no basis for reversing his findings
I We reject Respondent's contention that its due-process rights were
violated by the Administrative Law Judge's reliance on hearsay evi-
dence In our judgment., there is ample direct and competent record evi-
dence to support the Adminisiratise Law Judge's unfair labor practice
findings
' Under the circumstances herein. we find the nIarros cease-and-desist
language adequate to remedy the violations found
250 NLRB No. 52
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO MEMBERS
PosrEl) BY ORDER OF IHE
NATIONAL LABOR REl-ATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Medway Productions, Inc., or any other em-
ployer, to deny Jon Else and Michael Ander-
son, or any other employees or job applicants,
employment as cameramen or otherwise to dis-
criminate against them, or other employees or
job applicants, in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended,
because of their nonmembership in Internation-
al Photographers of the Motion Picture Indus-
try, Local 659, International Alliance of The-
atrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
Act, except to the extent that such rights may
be affected by an agreement requiring mem-
bership in a labor organization as a condition
of employment as authorized by Section
8(a)(3) of the Act.
WE WILL notify Medway Productions, Inc.,
Post Production Co., and Jon Else and Mi-
chael Anderson, in writing, that we have no
objection to those companies employing them
as cameramen, and that we request those com-
panies to offer them employment as camera-
men or, if such jobs are not available, substan-
tialy equivalent employment, with out preju-
dice to their seniority or other rights and
privileges.
WE WILL make Jon Else and Michael An-
derson whole for any loss of pay which they
may have suffered, with interest, by reason of
I)D:CISI()NS OF NA IIONAL. I.ABOR RELATIONS BOARD
the discrimination which we have unlawfully
caused to be practiced against them.
INII I:RNATIONAI. PHOTOGRAPHERS OF
IHIF MOTION PICIURE INI)USTRY,
LOCAL 659, INT IERNAT I IONA AL I-
ANCF. oi THEATRICAI. STcAGEI EM-
PI OY.I:S AND) MOVING PICTURE MA-
CHINE OPtiRATORS OF THE UNITED
STATEIS ANI) CANA)A
DECISION
SI AIIMNTI O I HE CASE
MAX ROSINBERG;, Administrative Law Judge: With all
parties represented, this proceeding was heard before me
in San Francisco, California, on August 21 and 22, 1979,
upon a consolidated complaint filed' by the General
Counsel of the National Labor Relations Board and an
answer submitted thereto by International Photographers
of the Motion Picture Industry, Local 659, International
Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada,
herein called the Respondent or the Union.
2 At issue is
whether Respondent violated Section 8(b)(2) and (I)(A)
of the National Labor Relations Act, as amended, by
certain conduct to be detailed hereinafter. Briefs have
been received from the General Counsel, the Charging
Parties, Jon Else and Michael Anderson, and the Re-
spondent, which have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of each witness
who testified, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Medway Productions, Inc., herein called Medway, a
California corporation, is engaged in the producton of
motion pictures in San Anselmo, California. During the
annual period material to this proceeding, Medway sold
goods and services valued in excess of $50,000 to Uni-
versal Studios at the latter's facility in California. Univer-
sal Studios, in turn, meets the applicable Board's direct
standard for the assertion of jurisdiction. The complaint
alleges, the answer admits, and I find that Medway is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.
By order dated August 17. 1979. the Regional Director for Region
20 severed Cases 20-CA-14248 and 20-CA 14391 which named Medway
Production.s Inc . as a party Respondent, from Cases 20 CB-4770 and
20-CB 4803o afler hasing approved settlement agreements and with-
drawn the complaints filed against Medway in those cases
2 The complaints, which issued on February 28 and March 19. 1979.
are based on cha;rges filed arid sersed on December 5. 1978. and filed on
February 12 and served (o Fehruar I ,. 1979. respectively
111. THI Al XI 1lI) LNI:AIR I.ABOR PRACII IES
The consolidated complaint alleges that Respondent
violated Section 8(b)(2) and (1) (A) of the Act when it
caused or attempted to cause Medway to refuse to hire
Jon Else and Michael Anderson on or about July 21,
1978, and in or about late August 1978.3 respectively, be-
cause of their lack of membership in the Union. Re-
spondent denies the commission of any labor practices
banned by the Act.
Respondent, a labor organization headquartered in Los
Angeles, California, exists for the purpose of collectively
representing employees in all phases of motion and still
photography, including camera operators and photogra-
phers. On January 31, 1976, Respondent's International,
IATSE, entered into a renewed basic agreement with a
multiemployer bargaining unit consisting of producers in
the industry who had formed an employer association
styled as the Moving Picture Machine Operators of the
United States and Canada, herein called MPMO. This
agreement, which spanned from February 1, 1976, to
July 1, 1980, contained, inter alia, the following provi-
sions:
IX. Preference of Employment
With respect to employees hired by a Producer
who is part of the Multi-Employer Bargaining Unit
. . .to perform services in the County of Los An-
geles, California, or hired by such Producer in the
County of Los Angeles, California, to perform serv-
ices outside such County, preference in employment
shall be given to persons having previous work ex-
perience in the crafts and classifications of work
subject to this Agreement, obtained while employed
by Producers who are part of the Multi-Employer
Bargaining Unit, in Los Angeles County or outside
such County if hired by such Producer in the
County to perform such services....
On February 1, 1976, Respondent published a subsidi-
ary agreement for producers in Los Angeles who utilized
the services of its members, which was made subject to
the terms and conditions set forth in the basic agreement
between IATSE and MPMO, and was programed to
expire on July 31, 1979. Under the heading of "Recogni-
tion" in article 2, this compact recited that:
The Producer recognizes, for purposes of legal pref-
erence of employment, the applicability of the
Multi-Employer Bargaining Unit Experience Roster
for Photographers within the geographical jurisdic-
tion of the Union ....
It enumerated the 13 Western States which fell within
that jurisdiction, including the State of California. In arti-
cle 68, the subsidiary agreement mandated, under the
heading of "Seniority," that employer-subscribers select
various covered classifications of employees from the es-
tablished "Multi-Employer Bargaining Unit Experience
Roster." The record reveals that, on May 10, 1972, Re-
spondent entered into contractual relations with George
i iJnless other ise indicated, all date, hereinafter fall ,i, 1978
368
INTERNATIO()NAL PHOTOGRAPHERS. IOCAL 659
Lucas Film Co., of which Medway is a wholly owned
subsidiary, covering the production of feature films in
the San Francisco area. This agreement was implemented
by an addendum which set forth the prevailing wage
scales and exempted that company from the applicability
of article 68 referred to above. In 1974 or 1975, after ex-
piration of the earlier agreement, this company produced
the film "American Grafitti" under a letter of under-
standing with Respondent.
Gerald K. Smith, Respondent's business representative,
testified that, in early summer of 1978, he received a tele-
phone call from Howard Kazanjian, a vice president of
Medway, during which Kazanjian disclosed that
Medway intended to produce in the San Francisco area a
sequel to "American Grafitti" under the title of "Purple
Haze." 4 Sometime thereafter, Smith met with Kazanjian
and Dick Gallagly, an officer of George Lucas Film Co.
During their discussion, and according to Smith, Kazan-
jian and Gallagly "recognized that they had a contrac-
tual obligation with us and they intended to hire people
who were represented by our Local Union and they
agreed that they would in fact sign a letter again con-
firming that it would be under our previous agreement."
In consequence of this meeting, and on August 7, Smith
dispatched a letter to Kazanjian which read:
On your forthcoming production [Purple Haze] it
is my understanding that Medway Productions will
agree to be bound by our Production Contract of
1976 enclosed, with the following understanding:-
That is, as the production company is based in San
Francisco and as the picture will be produced solely
out of San Francisco, that the company will be con-
sidered a San Francisco company for all purposes.
We therefore agree that the company will be ex-
cluded from the existing provisions of paragraph 68
[of the Los Angeles subsidiary agreement], but we
shall apply all other conditions to Medway Produc-
tion, a San Francisco based firm.
If the above is in compliance with our under-
standings, please confirm same in writing to me.
In his letter, Smith included a copy of Respondent's Los
Angeles agreement with the updated wage rates, as well
as a "Supplemental San Francisco Form agreement"
which other producers in the area had executed. In perti-
nent part, this supplemental form provided that:
In hiring persons to perform services covered by
this Agreement, preference shall be given by the
Producers to persons who have acquired the neces-
sary skills through prior experience with Producers
under this Agreement or under the employ of other
Producers taking pictures of comparable standards
and quality.5 If, after reasonable efforts to comply
with the foregoing conditions; [and] in any event,
after the elapse of ten (10) days, the Producer has
not filled any such vacancy, the Producer may fill
4 Other liles which had been considered for this production were
"Grafilli 2" and "More American Grafitni
b Smith testified that Respondent maintained a labor pool of approxi-
mately 140 members in the San Francisco Bay area, of which appro.i-
mately 5(0 Aere cinematographer,
such position without reference to the foregoing
provisions of this paragraph. It is agreed that mem-
bership in the Union shall not he a condition of first
hiring and that the Producer shall administer his
hiring practices without discrimination by reason of
membership or nonmembership in the Union.
Thereafter, Medway signed this letter of understanding.
Jon Else, a freelance cameraman with 10 years of ex-
perience in the field end many plaudits of excellence to
his credit, testified that he first learned through the
grapevine in the spring of 1978 that Medway intended to
film "Purple Haze" as a sequel to "American Grafitti."
Armed with this intelligence, Else telephoned Jim
Bloom, Medway's production assistant, sometime in
June. During their conversation, Else evinced his interest
in obtaining a position as a camera operator on the film,
and Bloom requested that the applicant send him a
resume of his qualifications. Else did so and, a few weeks
later, telephoned Bloom again to inquire into the matter.
Bloom stated that he had received the resume and was
quite impressed with its contents. Bloom inquired wheth-
er Else was a member of Respondent. Upon receiving a
negative response, Bloom remarked, "We have no work
for you at this time."
Else further testified that, during the second or third
week in July, he received a telephone call from Tom
Joiner, Medway's production manager for "Purple
Haze." Joiner opened the conversation by revealing that
he had obtained Else's name from a mutual friend. Joiner
then stated that he was in the process of putting together
a crew for the production and was making every effort
to "contact all the guys in the [Respondent] up here [in
the San Francisco area] before going to [Los Angeles] to
get a crew." After discussing the logistics involved,
Joiner disclosed that he had hired a Caleb Deschanal as
his director of photography, and advised Else to contact
Deschanal to explore the possibility of working as a
camera operator on his crew.
Within a few days, Else telephoned Deschanal. After
an exchange of pleasantries, the men launched into a dis-
cussion of the mechanics of the forthcoming production.
Else testified that, during the dialogue, Deschanal in-
quired whether the former was a union member. When
Else stated that he was not, Deschanal immediately re-
marked that "it would be very difficult to get me [Else]
on the film if I wasn't a member of the Union." The dis-
cussion dwelt for a time on Else's lack of membership
and, when Deschanal indicated that Else might qualify
for the job, the director of photography suggested that
Else should "get my Union problem solved" and send
Deschanal a copy of his resume together with a sample
reel of his work.
Else mailed the requested materials to Deschanal and,
in the latter part of July, Else received a second call
from the director who reported that he had received the
materials and was so impressed by them that he desired
to employ Else as one of his camera operators. However.
Deschanal commented that, inasmuch as Else "bias not a
member of the Union, there was . . . not a chance in
hell of getting on the production," and he once again
DECISIONS OF NA TIONAL LABOR RELATIONS BOARD
urged Else to solve his "Union problem." Else agreed to
do so, and the conversation ended.
Following this conversation, Else attempted to contact
Respondent's business representative, Gerald Smith, by
mail and telephone, but to no avail. Instead, he managed
to reach Ron DeVall, Smith's associate. Else explained
that he had reached a stage in his career where film pro-
ducers had learned of his talents and had been willing to
engage him as a camera operator but refrained from
doing so because they were producing films under con-
tract with Respondent and Else was not a member of
that labor organization. Else added that he had sought
unsuccessfully to join Respondent in the past and desired
to work in the San Francisco area, his home base. 6 Else
then asked for advice as to the steps he would have to
take to attain membership. DeVall responded that he was
unfamiliar with Respondent's contractual arrangements
in northern California and promised that Smith would
contact Else and answer all of his questions.
Else testified that Smith had vainly attempted to con-
tact him and that, in mid-August, Else once again called
Smith's office and spoke to DeVall. During this conver-
sation, Else reminded DeVall of the reason for his previ-
ous inquiry and reported that he had not heard from
Smith about the matter. Else then inquired into the pro-
tocol for joining the Union and asked whether his non-
membership should be a reason for a producer to deny
employment to him. With respect to the first inquiry,
DeVall stated that Respondent was not in the process of
organizing cameramen at that time. Regarding the
second query, DeVall replied that producers "usually
like to hire our guys, but if they really want to hire you,
there is no reason that they shouldn't."
Believing that an opportunity still existed for his em-
ployment on the production crew of "Purple Haze,"
Else immediately telephoned Medway's officers and
spoke to a secretary who was a social acquaintance. Else
informed her that he had talked to Union Agent DeVall
and that it was his understanding that he had obtained
clearance from Respondent to work for any producer in
the San Francisco area who wished to hire him. At the
end of the conversation, Else instructed the secretary to
pass this information on to Medway's vice president,
Howard Kazanjian, and director of photography, Caleb
Deschanal. Because he deemed his clearance to work for
Medway to be vital to him, Else dispatched a letter to
DeVall on August 18. In this communication, he remind-
ed DeVall of their previous conversation and sought a
reaffirmation of his understanding that he could be em-
ployed by a producer in the San Francisco Bay Area de-
spite his lack of membership in Respondent and that,
6 On August 16, 1977, and again on September 16, 1977, Else wrote to
Smith requesting an application for membership in Respondent or, in the
alternative, for a waiver of the membership requirement in order to work
on IATSE productions in the Bay area. On September 23, 1977, Smith
replied by advising Else that "we only organize individuals who work
under our Collective Bargaining Agreement and therefore comply by be-
coming members after working 30 days under said agreement" Smith
added that "With regard to your request for waivers to work on
I.A.T.S.E. productions coming into the Bay area, as the majority of those
contract(s) are in fact covered by a seniority provision within the con-
tract of the Motion Picture Industry there would he no way that we
could allow waivers whether or not you are a member of [Respondent]
after 30 days of such employment, he would be eligible
for membership in the Union. When Else failed to re-
ceive a reply, he again wrote to DeVall on October I
and enclosed a copy of his earlier letter. Smith finally re-
sponded on October 10. In his reply, Smith advised that
Respondent "is neither a fraternal organization, a hiring
hall, nor a referral Local. We are a labor organization
representing individuals working under our Collective
Bargaining Agreements." Smith added, "If you are seek-
ing employment you should approach those persons who
are doing the hiring such as Producers and/or employ-
ers."
Following this exchange of letters, Else failed to
obtain employment with Medway in the production of
the feature "Purple Haze."
Continuing the narrative, it is not uncommon in the
motion picture industry for a producer, after having
completed his feature, thereafter to film a featurette or
documentary of the main production. With the filming of
'Purple Haze," Medway became interested in obtaining a
producer to snap the documentary. Michael Weil, a pro-
ducer and director of motion picture films who had
worked in the San Francisco area since 1975 as the sole
owner of an entity styled as the Post Production Co.,
learned of Medway's plans in mid-August. He thereupon
telephoned Medway's offices to inquire into the prospect
of obtaining the production contract from that organiza-
tion. Weil spoke to a Joan Eisenberg, a unit publicist for
Medway, and informed her of his interest. Eisenberg
suggested that Weil send some film cassettes of his work
for inspection. Weil did so and, at the end of August,
learned that he was the frontrunner for the award of
Medway's documentary contract.
Upon gaining this information, Weil immediately
placed a call to Michael Anderson, a camera operator
who had worked for the former when he produced the
documentaries for "Bad News Bears Go To Japan" and
"Semi-Tough," both of which were filmed outside of Re-
spondent's territorial jurisdiction. During their conversa-
tion, Weil revealed that he was on the verge of obtaining
the "Purple Haze" documentary work and advised An-
derson, who was a friend as well as former employee, to
"clean your lens" in preparation for the commencement
of shooting. However, on or about September 4, Weil
was contacted by Medway's publicist Eisenberg who re-
ported that she had been instructed to inform Weil that
he would be required to employ camera operators who
were members of Respondent. Weil expressed his dis-
pleasure at this directive because he valued Anderson's
abilities, but he was constrained to notify Anderson that
his services could not be utilized on the featurette be-
cause Weil was obligated to hire only Union members to
shoot the film.7
' This was not the first occasion on which Anderson failed to make his
mark as a cameraman for Medway in the San Francisco bay Area He
testified without contradiction that, in the summer of 1978. he learned
that Medway intended to film sequels to "Star Wars" and "American
Grafitti" and would be hiring San Francisco-based camera operators. In
August. Anderson made an appointment to meet with Jim Bloom, Med-
way's production assistant, in the hope of obtaining a slot on the "Purple
Haze" camera ciew. During the ensuing meeting. Anderson broached the
Continued
370
INTFRNATIONAL PHOTOGRAPHERS IO()CAI. b5s
Shortly after September 4, Weil received word that
Jon Else, who was known to Well but had never previ-
ously worked for this producer, had received a clearance
for employment from Respondent. In consequence, Well
telephoned the camera operator about the matter and
learned from Else that he had spoken to Respondent's
agent, DeVall, who had assured Else that "he could
work on the next [Union] situation that came out." Weil
was excited at the receipt of this information and decided
to contact the labor organization and confirm this infor-
mation. Initially, Weil planned to visit Gerald Smith in
Los Angeles and inquire into Else's eligibility. When he
discovered that he was unable to make the trip, Weil at-
tempted to contact DeVall but the latter was out of his
office. Finally, Weil seized upon the idea of visiting the
headquarters of Eddie Powell, the business agent of Re-
spondent's sister Local 16 which was based in San Fran-
cisco. On September 7 or 8, Weil called upon Powell.
After some preliminary banter, Weil mentioned that he
was experiencing serious problems concerning the pro-
curement of qualified camera operators in the Bay area
to shoot his documentaries. Powell replied that Local 16
lacked jurisdiction over camera work in the vicinity and
observed that these operations fell within Respondent's
bailiwick. Powell volunteered to introduce Well to
Gerald Smith whose union handled this phase of film
production in the locale, and Well agreed. Whereupon,
Powell dialed Smith's office in Los Angeles and, when
the latter answered, Powell put Well on the phone. Well
testified that, after introducing himself, he explained that
he was on the threshhold of receiving a contract from
Medway to produce the documentary for "Purple
Haze." Weil continued that he had been told it was nec-
essary that he utilize a camera crew stocked with union
members and expressed his readiness to do so, but noted
that competent camera operators were simply hard to
come by among Respondent's labor pool in the area. At
this juncture, Well mentioned that he had contemplated
employing Jon Else as a cameraman on the project.
When Smith inquired whether Else was a member of the
Union, Well replied in the negative. Smith thereupon re-
lated that there were many competent camera operators
in the area who were union members and were unem-
ployed. Well then remarked that it was his understanding
that, as a result of a conversation which Else had had
with Ron DeVall, Smith's associate had advised Else
that he would be allowed to work on the "Purple Haze"
featurette. Upon hearing this, and according to Weill's
testimony, Smith "lost his cool and in a very, very loud
voice informed me that no one in his office except him
. . .can make those decisions." Smith then exclaimed,
"You can't hire Else, you have to use someone who is a
member of the Union .... " Also losing his cool, Well
shouted back that "I am an independent producer and I
understand that under the Taft-Hartley regulations as a
producer I can hire anybody that I want to work for me
.... " to which Smith retorted "no you can't . .. as far
as I am concerned, you are a subcontractor to Medway
topic of employment on the projects Bloom immediately inquired wheth-
er Anderson was a member or Respondent and. when Anderson replied
that he was noi. Bloom stated that it would be impossible to hire him
because he lacked that membership
who has a contract . . . with [Respondent]," and the col-
loquy abruptly ended.
Following his conversation with Smith, Weil tele-
phoned Else and, after repeating its contents, informed
Else that the prospect of his employment on the docu-
mentary appeared doomed, but Weil promised to pursue
the matter further. Well also reported the contents of his
discussion with Smith to Medway Vice President Kazan-
jian and Tom Joiner.
On September 10, Well received word from Medway
that he had been selected to produce the featurette and,
on September 11, he embarked upon its filming. In order
to do so, Weil obtained a union cameraman who pro-
duced, in Weil's words, "The worst dailies that I have
ever seen in my life." Discouraged by this prospect, Weil
journeyed to Medway's office where he spoke to
Howard Kazanjian and Tom Joiner in an attempt to pro-
cure the services of Else. Kazanjian informed Weil that
the former would be unable to accommodate Weil's re-
quest because Medway "had enough problems with the
Union." Although Well testified that he had never di-
rectly been told by Kazanjian or any other representative
of Medway that Smith had instructed these officials not
to approve the employment of either Else or Anderson
for the project, lie testimonially asserted that he never-
theless refused to hire Else, in light of Smith's expressed
objection against the employment of nonunion personnel,
because he "was scared if I walked out on the set with a
non-Union person that some shop steward might pull ev-
erybody off, or attempt to pull everybody off the shoot"
in light of his prior, extensive experience in the industry.
On September 12, Well received a formal, written con-
tract from Medway. After setting forth the duties which
Weil's Post Production Co. would be called upon to per-
form in the shooting of "Purple Haze" and the remu-
neration to be received, the agreement went on the recite
that "Producer [Post Production Co.] agrees to consult
with [Medway] concerning all aspects of the production,
creative or otherwise" and that "Producer is solely re-
sponsible for paying all lab, equipment and other costs,
and hiring and paying the crew and other personnel.
Producer agrees to comply with all applicable I.A.T.S.E.
and other applicable guild and union rules and regula-
tions." (Emphasis supplied.)
Well continued to film the documentary on September
15, 20, and 29 and Oc'ober 17 and 18. To accomplish the
shooting, he exclusively utilized cameramen who were
members of Respondent. While he was so engaged, he
received a copy of the labor agreements which Medway
had signed with Respondent governing the work that
was performed on "Purple Haze." Concluding his testi-
mony, Well recounted that, at no time during the filming
of the documentary did he employ either Else or Ander-
son as cameramen, although he had wished to do so, be-
cause of Smith's insistence that only members of his or-
ganization could be employed.
Although Else apparently made no further attempt to
obtain employment either with Medway or Weil follow-
ing his latest rejection in early September, Anderson did
not cease in his efforts to join Weil's crew in filming the
documentary. Sometime in September, Anderson spoke
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a film editor for Medway and recounted his failure to
obtain work with Medway and Weil due to his lack of
union membership. The editor suggested that Anderson
contact either George Lucas, Medway's executive pro-
ducer, or Kazanjian, and present the problem to them.
In late September or early October, Anderson tele-
phoned Kazanjian and, after introducing himself, in-
formed the vice president that Anderson was the camera-
man who Weil had hired to film the documentary on
"Purple Haze" but who had been prevented from doing
so because he had lacked membership in Respondent.
Anderson then asked Kazanjian why the former had not
been allowed to join the crew. Kazanjian responded that
he was aware of the situation and that he was party to a
labor compact with Respondent which required him to
hire only memhers of that labor organization. When An-
derson remarked that such a contractual requirement was
illegal under Federal law, Kazanjian replied that he was
unaware of this happenstance and suggested that Ander-
son contact Respondent Business Agent Gerald Smith in
Los Angeles to investigate the matter. Turning to Ander-
son's report that he had been denied employment after
he had actually been hired by Weil's company, Kazan-
jian stated that Weil's production of the featurette was "a
farmout" by Medway and, as such, Weil was bound by
the same contractual requirements as Medway.
Following this conversation, Anderson wrote a letter
to Kazanjian on November 1 to clarify and pinpoint the
reasons which the vice president had previously assigned
for Anderson's failure to gain employment on the pro-
duction of the documentary. In that letter, Anderson re-
lated that:
You [Kazanjian] told me that under your contract
with [Respondent], you absolutely could not hire
anyone who was not a member of [Respondent].
You added that your contract extended to all sub-
contractors, including Michael Weil, who was pro-
ducing the documentary and who had already hired
me.
Anderson concluded the communication by soliciting
Kazanjian's comments as to the accuracy of the former's
recollection of their telephonic dialogue.
On November 20, Kazanjian called Anderson in re-
sponse to the letter. During their conversation, Kazan-
jian remarked that Anderson had misunderstood the vice
president in that Kazanjian had informed Anderson that
the company "was not prohibited from hiring [non-
members of Respondent], he was rather required to hire
only [Respondent's] members." When Anderson pressed
for an explanation of the difference between these two
assertions, Kazanjian replied that there actually was
none. Thereupon, Kazanjian repeated what he had told
Anderson earlier about the status of Post Production
Co., and again "described Michael Weil as being part of
our company [Medway] and that the agreements that
were binding on Medway were equally binding on Mi-
chael Weil." At the conclusion of their discussion, Ka-
zanjian suggested that Anderson telephone Caleb Des-
chanal because "Caleb had had Union hassles, had had
some trouble meeting the thirty day requirement, but had
somehow overcome those problems and perhaps [Ander-
son] could learn something from Caleb." In this connec-
tion, the record discloses that Deschanal performed the
duties of director of photography for Medway on
"Purple Haze" although he was not a member of Re-
spondent and did not manage to join that organization
until November 12. Anderson did not follow through on
Kazanjian's suggestion.
As chronicled marginally above, initial charges were
also filed in this proceeding against Medway which al-
leged that that company had violated Section 8(a)(3) of
the Act by refusing to hire Jon Else and Michael Ander-
son because they were not members of the Union and be-
cause Respondent requested that they not be employed.
Shortly before the hearing opened herein, the Regional
Director for Region 20 approved settlement agreements
entered into between Medway and the Charging parties
and, thereupon, dismissed the charges and the complaints
against that entity. In apparent consequence of this pro-
cedural activity, none of Medway's officials appeared at
the hearing to testify. 8 After the hearing commenced,
Respondent interposed a series of objections to the testi-
mony of Else, Anderson, and Weil, insofar as that testi-
mony echoed the statements made to them by Howard
Kazanjian, Jim Bloom, Tom Joiner, Joan Eisenberg, or
any other representative of Medway as to the reasons for
Medway's and Weil's refusal to employ the two camera-
men, on the ground that such testimonial evidence con-
stituted excludible hearsay as to Respondent. Respondent
also contended that it was not responsible for whatever
discrimination might have been practiced against Else
and Anderson by Weil and his Post Production Co. be-
cause the firm was not privy to any contractual relations
with Respondent.
In the course of the hearing, I deferred ruling on sev-
eral of Respondent's motions to strike allegedly hearsay
evidence pending receipt of the totality of the evidence
to be submitted on the issues raised in the complaint.
After a careful consideration thereof, I am convinced
and conclude that the testimony of Else, Anderson, and
Weil should be received and evaluated on dual grounds.
A basic legal element presented in this litigation, de-
spite the settlement and severance of the cases against
Medway, is the charge that Else and Anderson were
denied employment by Medway and/or Weil in violation
of Section 8(a)(3) of the Act. The testimony of Else and
Anderson as to the grounds which Kazanjian, Joiner,
Bloom, Eisenberg, and Weil advanced in refusing to hire
the two cameramen is essential to a determination of the
motivation of those employers in failing to nlace the
names of the two men on their employment rolls. For
that purpose, their testimonial utterances are both com-
petent and material. Moreover, the establishment of a
violation of Section 8(a)(3) of the Act by the employers
is also basic to a determination of whether Respondent
a Some of these individuals were subpenaed to teslify herein by the
General Counsel
I See Local 776. 1.11SE (ilnm Editors(C ascade. Pictures of CalhJornia.
Inc.l, 124 NL.RB 842, 843, fn 2 (195q); Loaul 1418, General Longshore
4o)rkers. International Lonigsiormeni e ' sso¢i ationi (Lyks~' Brothers Stiamn-
ship Co. Inc). 102 NLRB 72(). 731 (I1953), enfd 212 F2d 846 (5th Cir
1954)
372
INTERNATI()NA PH()()OGRAPH.RS, ILOCAI. 659
caused or attempted to cause those employers to bar Else
and Anderson from jobs with them for a proscribed
reason. While Respondent cannot be held legally ac-
countable for the conduct of Medway's officials or Weil
if they acted independently of the Union in their dealings
with the Charging Parties, I am persuaded that the testi-
mony of Else, Anderson, and Weil, while nominally
hearsay in certain areas as to Respondent, effectively lost
that taint when viewed against Smith's own sworn utter-
ances both on the stand and in an affidavit which he ten-
dered to a Board agent, as well as other competent evi-
dence submitted herein.
As chronicled above, Jon Else learned from Medway
Production Assistant Bloom in late June that the
former's request for employment on the feature of
"Purple Haze" would be favorably considered. Howev-
er, when Bloom inquired whether Else was a union
member and was told that he was not, Bloom notified
the cameraman that "we have no work for you at this
time." In mid-July, Else received a call from Medway
Production Manager Joiner who related that he was
busily assembling a Union camera crew to film "Purple
Haze" and suggested that Else contact the director of
photography, Caleb Deschanal, for a job. At the end of
July, Else spoke to Deschanal on two occasions after
which the director reported that, although Else was
highly qualified and that Medway was desirous of em-
ploying him on the crew, there was "not a chance in
hell" of getting the position inasmuch as Else was not a
union member.
At the end of August, Michael Weil discovered that
he was about to obtain a contract from Medway to film
a documentary of "Purple Haze." He immediately tele-
phoned Michael Anderson, a well-regarded cameraman
who had previously worked for him, and Anderson was
hired on the spot to film the featurette. On September 4,
Weil was apprised by Medway's publicist that she had
been instructed to inform Weil that the award of the pro-
duction contract was contingent upon his employment of
union members. Upon receipt of this information, Weil
informed Anderson that his services could not be utilized
because he did not possess union membership.
In my opinion, it is an affront to reason for Respond-
ent to argue that the denial of employment to Else by
Medway at the end of July because he lacked a union
card was a decision reached by Medway, and Medway
alone. Because of past contractual commitments made
with Respondent going back to 1972, Medway Vice
President Kazanjian felt impelled to contact Respondent
Business Representative Smith in the summer of 1978 to
report that Medway planned to embark upon the pro-
duction of "Purple Haze." During their discussion, as re-
ported by Smith, Kazanjian "recognized that [Medway]
had a contractual obligation with us and they intended to
hire people who were represented by our Local Union
. ." By manifesting an intention to hire only union
members, Kazanjian was not exercising an independent
option but was simply complying with the terms of an
agreement which Respondent had extracted from
Medway mandating that "In hiring persons to perform
services covered by this Agreement, preference shall be
given by Producers to persons who have acquired the
necessary skills through prior experience with Producers
under this Agreement." If the actual design and thrust of
this contractual provision was intended to insure the
supply of cameramen who possessed competence rather
than union membership, as Respondent seemingly argues,
this argument rings hollow in light of Respondent's con-
fession that Else, as well as Anderson, were suitably
qualified to work for Medway. Moreover, in light of
Smith's assertions that Respondent was not organizing
freelance cameramen in the San Francisco Bay area and
that its members there were unemployed. I am persuaded
that Respondent's insistence that Medway give prefer-
ence in hiring to cameramen who had worked with pro-
ducers covered by its contracts made it abundantly clear
to Medway that, while their agreement permitted it to
hire outside the Union's ranks, this privilege could be ex-
ercised only with Respondent's prior approval. I Indeed,
Smith admitted in a sworn affidavit which he gave to a
Board agent that "Pursuant to our agreement with
Medway, it is my understanding that Medway could hire
whosoever it wanted if they first attempted to give con-
sideration to union members . . . I repeated to Kazanjian
that he was obligated to attempt to hire Union members,
but could go outside Union members for hiring."
I am fortified in this conclusion by a consideration of
Smith's dialogue with Weil when the latter sought to
employ Else as a replacement for Anderson to film the
documentary of "Purple Haze." Weil testified that,
during his telephonic conversation with Smith on Sep-
tember 7 or 8, he apprised Smith of his intention to hire
Else on the project. When Smith learned that Else was
not a member of his organization, Smith heatedly warned
Weil that "You can't hire Else, you have to use someone
who is a member of the Union .... " It is undenied that
Weil conveyed this directive to Kazanjian and, when the
employment of a Union cameraman to film the featurette
proved to be a fiasco, Weil beseeched Kazanjian to pro-
cure the talents of Else. Kazanjian refused to do so, ex-
plaining that he "had enough problems with the Union."
In his testimony, Smith recounted that he had received
a call from Weil who related that he had been retained
by Medway to film the documentary and that he con-
templated hiring Else as his cameraman, but seemed
"very upset in finding out that he could not hire [Else],
and I said he could hire anybody he damn well chose, I
had no contract with his company." Questioned as to
whether he told Weil that, as an independent producer,
he would nevertheless be bound by the terms of Re-
spondent's contractual arrangement with Medway, Smith
proceeded to fence with counsel. When shown his affida-
vit, Smith then confessed that he had told Weil "that he
'o Cf. Internarional Photographers of the .ortion Picture Industries Local
659 of L.4TSE (IMPO-TV of California, Inc. Y-.4 Productions. Inc.). 197
NILRB 1187, 1190 (1972), where, in a case involving ihis Respondent anid
dealing with the operation of its "Experience Roster" in oblaining em-
ploymenl with subscribers to the contract containing thai provision. the
Board observed that "initial employment in a unit represented byh Re-
spondent is based strictly on union conhiderations No matter what quali-
ficalions an employee brings With him, if he has not il the past been rep-
resented by Respondent, he cannol gain employment v ilh anS employer
wx ho is parts to a collecti.e-bargaining agreement with Respondent and/
or IATSE "
373
I)ECISIONS OF NATIONAL LABOR RELA IONS BOARD
could hire Else, but not to do bargaining unit work with
Medway, and that all work on Medway was bargaining
unit work" which, in essence, meant that Else would not
be hired at all. Smith initially denied that he had contact-
ed Kazanjian and suggested that the latter tie Weil to a
contract which would bind Weil to subscribe to Re-
spondent's hiring rules. Upon being shown his affidavit,
Smith conceded that he had been asked by Kazanjian
about the possibility of utilizing an outside contractor to
film the documentary and Smith informed him that any
photographic work must be undertaken in compliance
with their labor agreement. Smith also acknowledged
that, following his conversation with Weil, he spoke to
Kazanjian and advised the vice president "that he should
make an agreement with Weil in compliance with Med-
way's contract with us."
In sum, I credit the testimony of Weil and find that,
during his telephone conversation with Smith on Sep-
tember 7 or 8, Smith informed Weil that the latter could
not hire Else to perform camera work on the "Purple
Haze" featurette because Else was not a member of the
Union. I also find that, shortly thereafter, Weil notified
Kazanjian of this happenstance and, despite Weil's re-
quest that Medway disregard Smith's directive, Kazan-
jian refused to comply with the request because he had
"enough problems" with Respondent.
There is no dispute of fact and I find that, following
Respondent's causation of Else's rejection as a candidate
for employment on the documentary in early September,
Michael Anderson continued his quest for a slot on
Weil's camera crew and telephoned Kazanjian in late
September or early October about the matter. The facts
chronicled above relating to Else's denial of employment
give probative substance to Anderson's testimony that,
when he informed Kazanjian that he was the cameraman
who was denied employment with Weil's crew because
of his lack of union membership, Medway's vice presi-
dent rejoined that he was aware of this incident and ex-
plained that Medway was a party to an agreement with
Respondent which required that it hire only union mem-
bers. Kazanjian added that Weil's production of the doc-
umentary was a "farmout," by which he meant that Weil
was bound by the same contractual hiring arrangements
as Medway. I am convinced and find that Kazanjian's re-
fusal to approve Anderson's employment with Weil was
a direct consequence of Smith's earlier comments that
Respondent's contractual hiring provisions were applica-
ble to Weil and barred the employment of nonmembers,
such as Anderson.
The complaint alleges that Respondent caused or at-
tempted to cause Medway to refuse to employ Jon Else
on or about July 21 because he lacked membership in the
Union. As heretofore found, Kazanjian informed Smith
of his intention to film the feature of "Purple Haze" and
assured Smith that Medway would faithfully adhere to
its contractual obligation "to hire people who were rep-
resented by" Respondent. This assurance was memorial-
ized in an understanding which Smith sent to Kazanjian
for signature and which the latter executed. Although
Else applied for the job with Medway at the end of July
and was assured that he possessed the requisite compe-
tence for employment on the feature production, he was
nevertheless denied employment on the ground that he
was not a member of Respondent. In view of Smith's re-
action to the employment of Anderson and Else on the
production of the documentary in September and Octo-
ber, which was communicated to Kazanjian, as well as
the understanding of Medway's officials as to the actual
purport of the labor compact which it had agreed to
with Smith, I am convinced that, when Director of Pho-
tography Deschanal refused to employ Else in late July
until he had managed to solve his "Union problem,"
Deschanal was simply reacting to Smith's proverbial
"wink or nod" that the agreement prescribing preferen-
tial hiring for union members in fact meant that only
such members would be employed. Accordingly, I con-
clude that Respondent caused Medway to deny employ-
ment to Else in late July because he lacked Union mem-
bership, and thereby violated Section 8(b)(2) and (1)(A)
of the Act. '
I have heretofore found that, on September 7 or 8, Re-
spondent, through Smith, again caused Medway to bar
employment to Else for work on Weil's production of a
documentary of "Purple Haze" because of its continued
insistence that only Union personnel be employed. And,
I have found that, on September 4, Medway refused to
allow Weil to engage the services of Michael Anderson
to film the documentary. As in the case of Else, I find
that that causative impulse for the denial of camera work
to Anderson had its genesis in Respondent's requirement
that Medway give preference in hiring to union mem-
bers.
Respondent's contention that it was not responsible for
Weil's refusal to employ Anderson and Else for work on
the featurette because he was an independent contractor
with no contractual ties or obligations to the Union does
not warrant extensive treatment. Suffice it to say, Smith's
own testimony clearly reveals that he insisted that
Medway bind Weil by contract to adhere to the terms of
the outstanding agreement between Respondent and
Medway, including the provisions dealing with the
hiring of employees. Moreover, as a result of this insis-
tence, Medway obtained such an agreementfrom Weil
which dictated that this producer "comply with all appli-
cable I.A.T.S.E. and other applicable guild and union
rules and regulations." I therefore conclude that Weil
stood in the shoes of Medway insofar as his labor poli-
cies were concerned and that, when Smith insisted that
Weil hire union members to film his work rather than
Else or Anderson, this insistence was tantamount to ex-
erting that same pressure upon Medway. In short, I find
that, by refusing to clear Else and Anderson for employ-
ment on the documentary of "Purple Haze" on Septem-
ber 7 or 8, and September 4, respectively, Respondent
thereby caused Weil, and consequently Medway, to ban
these cameramen from the set because they lacked mem-
bership in that labor organization. I conclude that, by the
foregoing conduct, Respondent violated Section 8(b)(2)
and (I)(A) of the Act.
II Cf .rotion Picture Studio Mechuanici, Laiol 52A. IA1SE (Michael
Leviee Productioms. Lid.). 238 NLRB No. 9 11978)
374
INFER KNATIONAl Pt'IOTO((RAPHERS. I )CAIL 659
IN'. I'll It llI( OI 1 it I Nt: iR I O NII R R HO A CIICI:S
UPON CONMM RCI
The activities of Respondent set forth in section I11,
above, occurring in connection with the Employer's op-
erations described in section I. above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening commerce and the free flow
thereof,
V. THIU RiMItI)Y
Having found that Respondent has violated Section
8(b)(2) and (I)(A) of the Act, I shall order that it cease
and desist therefrom and take certain affirmative action
which I deem is necessary to effectuate the policies of
the Act.
I have found that Respondent unlawfully attempted to
and did cause Medway discriminatorily to deny Jon Else
and Michael Anderson employment as cameramen be-
cause they were not union members. I shall therefore
order that Respondent notify Medway and Weil, in writ-
ing, with a copy of said notification sent to Else and An-
derson, that it has no objection to Medway's employ-
ment of these cameramen and that it requests that
Medway offer Else and Anderson employment in the
jobs for which they were previously considered or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges. I shall further order that Respond-
ent make Else and Anderson whole for any loss of earn-
ings they may have suffered by reason of the discrimina-
tion practiced against them, by payment to them of a
sum equal to that which they normally would have
earned in Medway's employ from the date of the dis-
criminatory denial of employment to them until 5 days
after the notices required above have been sent. l 2 The
backpay provided herein shall be computed in accord-
ance with the Board's formula set forth in F W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).'3
Upon the basis of the foregoing findings of fact and
conclusions, and the entire record made in this proceed-
ing, I hereby make the following:
CONCIUSIONS OF LAW
I. Medway is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By attempting to cause and causing Medway to
deny Jon Else and Michael Anderson employment as
cameramen in violation of Section 8(a)(3) of the Act, Re-
spondent is engaging in and has engaged in unfair labor
2 The General Counsel has neither alleged nor contended that Re-
spondenl caused ior attempted to cause Medway to deny employmentl to
Michael Anderson fir woerk as a cameraman oin the feature productiion of
"Purple Haze" as oipposed ito the documenlary of that film Accorrdingly,
I shall make nol remedial prosisieon focr Anderscr in this regard
"': See, benerall>. Isis Pl/unhbitg & floetirn g Co, 138 NIL R 71t (19621
practices within the meaning of Section 8(b)(2) and
(1)(A) and Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act. as amended, I
hereby issue the following recommended:
ORDER ' 4
The Respondent, International Photographers of the
Motion Picture Industry, Local 659, International Alli-
ance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada. its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Medway Produc-
tions, Inc., or any other employer, to deny Jon Else and
Michael Anderson, or any other employee or job appli-
cant, employment as a cameraman or otherwise discrimi-
nate against them or other employees or job applicants in
violation of Section 8(a)(3) of the Act because of non-
membership in Respondent.
(b) In any other manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Notify Medway Productions, Inc., and Michael
Weil, in writing, with copies also sent to Jon Else and
Michael Anderson, that it withdraws any objections
which it has to their employment, and that it requests
that Medway offer to them employment as cameramen
or, if such jobs are not available, to a substantially equiv-
alent position, without prejudice to their seniority or
other rights and privileges.
(b) Make Jon Else and Michael Anderson whole for
any loss of earnings which they' may have suffered by
reason of the illegal discrimination practiced against
them in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Post at its offices and meeting rooms copies of the
attached notice marked "Appendix."' s Copies of said
notice, on forms to he provided by the Regional Direc-
tor for Region 20, after being duly signed by Respond-
ent's authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
1' In the event no exceptions are filed as prol ided hb Sec 1(024i6 of
the Rules and Regulation, of the National Labor Relations Board. Ihe
findings, cornclusion,. and recommended Order herein shall, as prosided
in Sec 102 48 of the Rule, and Regulations. he adopted by the Board and
become its findings, conclusions. and Order. and all hbjectlions thereol
shall he deemed %sal ed foIr all purposecs
it In the esent that this Order i, enforced h) a Judgmcnl of a U'niied
State, Court of Appeals. the s.ords i,, the Iotice reading "Posted hby
Order of Ihe Nltionall I ahbor Relationll HBoard" shall read "osted Puru-
ant hto a Judgmcen of Ithe i illed Statel' Court i[f Appeals, itforcing ia
Order of Ihe Naollnal lhabohr Rel.ailn, H.iard "
I)t'CISI()NS ()F NAIO()NAIl LABOR RELATIONS BOARD
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Deliver to the Regional Director for Region 20
signed copies of the "Appendix" for posting by Medway
Productions, Inc., at its facility in San Anselmo, Califor-
nia, if said company is willing to do so, in places where
notices to employees are customarily posted.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
376