SAG-AFTRA New York

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2020

02-CB-242132 (N.L.R.B. Apr. 22, 2020)

JD(NY)-06-20
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
SAG-AFTRA NEW YORK (VARIOUS
EMPLOYERS)
Case No. 02-CB-242132
and
BENJAMIN SCOTT HAUCK, an Individual
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 alleging that on or about May 3, 2019, SAG NY
breached its duty of fair representation by refusing to allow Hauck to attend meetings 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 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
1 The Respondent Union’s full name is Screen Actors Guild – American Federation of Television and
Radio Artists New York. Tr. 35; Jt. Ex. 3(a), p. 1.
JD(NY)-06-20
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been engaged in the production of film and television programming. Jt. Ex. 1. SAG NY
denied knowledge or information sufficient to form a belief as to the Complaint’s
allegation that during the preceding twelve 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 5
within the meaning of Section 2(2), (6) and (7) of the Act. G.C. Ex. 1(c, e).
General Counsel and SAG NY have further stipulated that Picrow is a member of
the Alliance of Motion Picture and Television Producers (AMPTP), an organization
comprised of motion picture and television producers operating in various states, which 10
represents its members in negotiating and administering collective bargaining
agreements with labor unions, including SAG NY. Jt. Ex. 1. Charging Party Benjamin
Scott Hauck testified at the hearing that he had recently performed work for and been
paid by Picrow. Tr. 15.
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. Ex. 1.
II. Alleged Unfair Labor Practices20
A. The Parties
Screen Actors Guild – American Federation of Radio and Television Artists
(SAG) represents 160,000 professional actors, singers, dancers, and recording artists 25
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 approximately 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 30
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 selected 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.
35
Charging Party Benjamin Scott Hauck is an actor, and was a full member of SAG
from 2000 until July 2015, when he resigned and became a financial core member who
pays an agency fee. Tr. 14-16; Jt. Ex. 2; R.S. Ex. 1. General Counsel called Hauck as
a witness at the hearing. Justin Touretz, SAG’s Associate General Counsel, testified on
behalf of the Union. Tr. 35-36.40
B. The Collective Bargaining Process and SAG’s Preparation for Contract
Negotiations
SAG conducts collective bargaining with respect to multi-employer, national 45
agreements such as the TV/Theatrical Basic Agreement pursuant to Article XI of its
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Constitution. Tr. 38-39; Jt. Ex. 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 proposals, and a Negotiations Committee to conduct
negotiations. Jt. Ex. 3(a), p. 37. The National Board determines policies and
procedures for conducting negotiations, and approves proposals developed by the 5
W&W Committee. Id. SAG locals conduct independent local meetings and provide
proposals they have approved to the W&W Committee, which then submits a package
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. 41.10
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. Ex. 6; Tr. 39-40. The National Board further 15
established a W&W process in order to address current and anticipated industry trends
and solicit potential bargaining proposals. Jt. Ex. 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, 20
their potential impact on production, and the subsequent effect on performer earnings.
Tr. 40-42. Specific bargaining proposals are not solicited. Tr. 42. SAG-NY conducted
this meeting, entitled “Outlook for Scripted Dramatic Live Action Entertainment,” on May
8, 2019. Tr. 42; Jt. Ex. 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 25
proposals with Union staff. Tr. 43; Jt. Ex. 5, p. 3-4. SAG also held meetings by caucus
for performers focused on certain specific types of work, such as background, stunt
work, singing, and dancing. Tr. 43-44; Jt. Ex. 5, p. 4-5. During these two sets of
meetings, anyone in attendance may suggest a bargaining proposal, and the attendees
vote on the proposals raised; proposals selected by vote are added to a report which is 30
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.S.
Ex. 3; Jt. Ex. 3(a), p. 3-5. In order to establish their membership to attend a meeting, 35
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 W&W process, 147
proposals were submitted by SAG’s locals to the National W&W Committee, 23 of which 40
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 one, and the proposals were
provided to the National Negotiating Committee to be presented in collective bargaining. 45
2 ”Wages and Working Conditions” will subsequently be referred to as “W&W”
JD(NY)-06-20

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Tr. 46. At the time of the hearing 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 5
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 confidential nature, on which 10
outside discussion might be detrimental to the best interests of the
members of the Union.
Tr. 46-47; Jt. Ex. 3(a), p. 50, ¶ 10. Touretz testified that members who participate in any
aspect of the W&W process are therefore required to sign a Confidentiality Agreement 15
requiring that they refrain from disclosing information obtained in connection with the
Union’s W&W process to individuals other than members of the Negotiating Committee,
SAG officers, or necessary staff. Tr. 47-48; R.S. Ex. 2. The Confidentiality Agreement
further provides that violations could result in the imposition of internal union discipline.
Tr. 49; R.S. Ex. 2. Touretz testified that nonmembers are not subject to the 20
confidentiality provision of the membership rules contained in SAG’s Constitution. 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
confidential would be to enter into nondisclosure agreements enforceable only in court.
Tr. 49-50. Touretz testified that enforcement of nondisclosure agreements in court 25
would be a more cumbersome and difficult process than the internal Union disciplinary
procedures applicable to members. Tr. 49-50, 56.
The evidence establishes that nonmembers, as well as members, may submit
bargaining proposals through an e-mail address the Union establishes specifically for 30
that purpose. Tr. 50; R.S. Ex. 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 35
so. Tr. 50-52; R.S. Ex. 3; Jt. Ex. 5, p. 5. Touretz testified that he had participated in
meetings where proposals submitted via the e-mail address were considered. 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 proposal by e-
mail when their proposal is discussed during the W&W process. Tr. 54; see also Tr. 22. 40
While the individual submitting a proposal may include arguments in their e-mail
submission for pursuing the proposal in negotiations, if they are not permitted to attend
W&W process meetings the e-mail submission is their only opportunity to advocate for
the proposal. Tr. 22, 54.
45
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C. SAG’s Interactions with Hauck in Connection with Preparations 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 upcoming collective bargaining negotiations 5
with the AMPTP, beginning with a meeting on May 8, 2019 for members in good
standing. Tr. 23-25; G.C. Ex. 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. Ex. 4. Hauck
stated that although he was a “member of the Union in good standing” pursuant to the 10
TV/Theatrical Basic Agreement, 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. Ex. 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 rationale for
excluding him in the event that he was not permitted to attend. Jt. Ex. 4. 15
Later that day, Jeffrey Bennett, SAG NY’s Chief Deputy General 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. 20
Ex. 4. Two hours later, Hauck wrote to Bennett 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. Ex. 4. Soon after, Bennett sent Hauck another e-mail stating, “You will not
be permitted to attend.” Tr. 29; Jt. Ex. 4. Touretz testified that Hauck’s request to 25
attend the May 8, 2019 meeting was denied 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 30
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 35
address for the submission of proposals for upcoming negotiations with the AMPTP; the
e-mail address he had at the time contained the year “2017,” so he assumed that it
would no longer be effective.4 Tr. 32.
40
3 General Counsel and SAG NY stipulated that Bennett is an agent of the Union pursuant to Section 2(13)
of the Act. Jt. Ex. 1.
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.S. Ex. 3; Jt. Ex. 5, p. 5.
JD(NY)-06-20

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III. Decision and Analysis
A. Jurisdiction
The Board’s jurisdiction to hear and decide cases arising under the National 5
Labor Relations Act is engendered by an underlying labor dispute which burdens or
obstructs interstate commerce. See, e.g., Electrical Workers Local 48 (Kingston
Constructors), 332 NLRB 1492, 1507 (2000), citing NLRB v. Fainblatt, 306 U.S. 601
(1939). Although this standard is “extremely broad,” the Board as a discretionary matter
has limited its jurisdiction to disputes which have a “substantial” impact on interstate 10
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 contingent upon application of the
discretionary jurisdictional standards to the employer or employers whose operations 15
are allegedly affected by the Union’s unlawful conduct. Electrical Workers Local 48
(Kingston Constructors), 332 NLRB at 1507; see also Carpenters Local 102 (Millwright
Employers Ass’n.), 317 NLRB 1099, 1101 (1995). When the employer is engaged in a
nonretail business, the employer’s activities must involve an “inflow” or “outflow” of
goods or services worth more than $50,000 across state lines, either “directly” or 20
“indirectly.” Siemons Mailing Service, 122 NLRB at 85. The $50,000 figure is
“expressed 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 25
Counsel bears the burden to establish the agency’s jurisdiction. 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 30
that Picrow meets the discretionary standard for establishing jurisdiction is inadequate.
General Counsel and SAG NY stipulated to the authenticity and admissibility of a
commerce questionnaire submitted by Picrow in a previous case, dated February 4,
2019, and stipulated to the truth of the assertions the commerce questionnaire contains.
Jt. Ex. 1, Ex. A. The commerce questionnaire states that Picrow provided services 35
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 outside of
California, and purchased and received goods valued in excess of $50,000 from
enterprises who received those goods directly from points outside of California. Jt. Ex.
1, Ex. A. However, SAG NY contends that because the questionnaire is dated February 40
4, 2019, it does not cover the 12 months prior to issuance of the Complaint in this case
on November 5, 2019. In addition, SAG NY points out that when completing the
commerce questionnaire, Picrow did not respond to Item No. 9, regarding 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 45
JD(NY)-06-20

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provide adequate proof that Picrow’s business activities satisfied the discretionary
standard during the time period relevant for establishing jurisdiction.5
The business volume information contained in the commerce questionnaire
completed by Picrow does not provide an unambiguous basis for the assertion of 5
jurisdiction. The Board has stated that “the jurisdictional criteria expressed in terms of
annual dollar volume of business do not literally require evidentiary 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, fn. 2, 29 (1991),
aff’d. in relevant part, 974 F.2d 1000, 1002 (8th Cir. 1992); Reliable Roofing Co., Inc., 10
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 labor 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 15
and 974 F.2d at 1002; Reliable Roofing Co., Inc., 246 NLRB at 716, fn. 1. However, in
such cases the Board has been able to identify a specific basis – whether fiscal year,
calendar year, or 12-month period – for which the evidence 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 (using fiscal year). 20
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 establishes a volume of business sufficient to
assert jurisdiction had a relevant annual basis been identified, there was no evidence25
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 established based upon
the its membership in the AMPTP, a multi-employer association which bargains with 30
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 represent it
in negotiating and administering collective-bargaining agreements.” Jt. Ex. 1, Ex. A and 35
at ¶ 3; see also G.C. Ex. 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
5 General Counsel states in her Post-Hearing Brief that Picrow “provides services valued in excess of
$50,000 each year to customers directly outside the State of New York” (emphasis added), but does not
address the issue further. Post-Hearing Brief at p. 2, fn. 4.
6 SAG-NY also objects to General Counsel’s relying upon the commerce questionnaire on the grounds
that it was submitted in connection with a different charge. However, the Board has relied upon materials
which originated in connection with an earlier case to establish jurisdiction, so long as they are admitted
into the record in the case before it. See Midland Rubbish Removal Co., 298 NLRB 991 (1990).
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575, 576-577 (1988); Federal Stores, 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 exercises jurisdiction” 5
(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 10
association comprised of approximately 350 members, with which SAG bargains in
order to establish terms and conditions 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 15
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, jurisdiction may be asserted here based upon Picrow’s
membership in the AMPTP. See Federal Stores, 91 NLRB at 660.
20
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 represent all members of
the bargaining unit, irrespective of their membership in the union.” American Postal 25
Workers (Postal Service), 300 NLRB 34 (1990), citing Machinists Local 697 (Canfield
Rubber), 223 NLRB 832, 834 (1976). Therefore, Section 8(b)(1)(A) of the Act prohibits
as “discriminatory” union conduct which “effectively den[ies] to unit members
fundamental rights of union representation,” including “access to grievance procedures
and exclusive union hiring halls.” American Postal Workers (Postal Service), 300 NLRB 30
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 35
overall responsibility “as exclusive 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.
40
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 45
Workers (Postal Service), the union excluded nonmembers from a meeting to discuss
JD(NY)-06-20

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the employer’s “planned changes” in “special delivery routing,” including the possible
elimination of delivery routes and bargaining 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 5
nonmembers from the meeting violated Section 8(b)(1)(A), but the Board reversed. Id.
at 34-35. Noting that no grievance was filed a result of the meeting, 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 34.10
In doing so, the Board distinguished Boilermakers Local 302 (Henders Boiler),
300 NLRB 28 (1990), and Branch 600, National 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 15
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 20
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 25
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. 30
The parties do not dispute that the instant case is controlled by the Board’s
decisions in American Postal Workers (Postal Service), Boilermakers Local 302
(Henders Boiler), and Branch 600, National Assn. of Letter Carriers. As General
Counsel admits, these precedents require dismissal of the instant charge. Post-Hearing 35
Brief at 8. There is no dispute that the May 8, 2019 W&W process meeting Hauck
sought to attend, entitled “Outlook for Scripted Dramatic Live Action Entertainment,”
consisted of a presentation by SAG’s chief economist regarding general 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 40
regarding any specifically enumerated term or condition of employment was
contemplated at or occurred during the May 8, 2019 W&W process meeting, such that
the events of the meeting constituted “a substitute for negotiations.” See Branch 6000,
National Assn. of Letter Carriers v. NLRB, 595 F.2d at 812 (distinguishing election to
select among two specific options for days off in that case from “a poll of the union 45
membership to ascertain its views prior to formulation of the negotiating posture for the
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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 Section 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.
5
General Counsel proceeds in her Post-Hearing 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 Pathmark Stores, Inc., 342 NLRB 378, 10
fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749, fn. 14 (1984). Here that precedent
requires that the Complaint be dismissed.
Conclusions of Law15
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 the20
Complaint.
On these findings of fact and conclusions of law, and on the entire record, I issue
the following recommended:
25
Order8
The Complaint is dismissed.
Dated, Washington, D.C. April 22, 202030
Lauren Esposito
Administrative Law Judge35
7 The charge in this case was initially dismissed by the Regional Director on August 27, 2019. Jt. Ex.
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. Ex. 7(b). Subsequently on November 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 Order 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.