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Motion Picture Studio Mechanics v. National Labor Relations Board

decided: February 15, 1979.


Union petitions for review of National Labor Relations Board broad order finding violations of §§ 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act for attempting to cause and causing employer to refuse to hire individual because he was not a member of the Union. The Board applies for enforcement of its order. Held, findings of NLRB and administrative law judge were supported by the record and remedial orders were proper.

Before Oakes, Gurfein and Van Graafeiland, Circuit Judges.

Author: Oakes

This case comes before the court on a petition by the Motion Picture Studio Mechanics, Local 52 (the Union), to review a decision and order issued by the National Labor Relations Board (the Board). The Board seeks enforcement of its order. The Board found that the Union attempted to cause and did cause Michael Levee Productions, Ltd. (the Company), to refuse to hire Michael Goldbaum, a sound-mix engineer, in violation of §§ 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(b)(2), 158(b)(1)(A). The Board issued a back pay order as well as a broad order requiring the Union to cease and desist from causing the Company or any other employer to discriminate against Goldbaum or any other employee or job applicant because of nonmembership in the Union.

Petitioner alleges that there was insufficient evidence on the record to support the Board's findings and that the Board's remedial order was improper. For the reasons discussed below, we find these claims without merit; we therefore affirm the order of the Board and grant its application for enforcement.


In May 1977 the Company agreed to produce a motion picture entitled "Slow Dancing in the Big City" that United Artists was to finance and distribute. John Avildsen was director and coproducer, and as such he had the authority to recommend the hiring of personnel for the production of the movie. Although Michael Levee, president of the Company and coproducer, actually hired the personnel, in fact Levee usually followed Avildsen's recommendations. Neither the Company nor United Artists had any contract with the Union.

In June, Avildsen spoke with Goldbaum about the possibility of employing him on the picture as the sound mixer because the two had worked together previously. Avildsen, who was aware that Goldbaum was not a Union member, told him that if there were no union problems he would be hired. Goldbaum spoke with the Company's production manager, and they reached an understanding as to Goldbaum's working conditions and compensation in the event that he was hired.

Meanwhile, Avildsen contacted the Union because he felt that it would be necessary for Goldbaum either to join the Union or to get its approval to work on this particular picture. As a result, Avildsen and Michael Proscia, the Union's business manager, together with the Union's vice president and the Company's production manager, met for lunch in late June to discuss Goldbaum's employment. Proscia indicated that it was unlikely that the Union would admit Goldbaum to membership. Avildsen then asked Proscia what would happen if the Company hired Goldbaum anyway. On the basis of disputed testimony and express evaluations of the credibility of the witnesses, the administrative law judge (ALJ) found that Proscia had replied that he might have to take "some kind of action"; and on the undisputed testimony, indeed an admission by Proscia himself, the ALJ found that when Avildsen asked what kind, Proscia answered, "That's for me to know."

In July, Goldbaum requested a letter of commitment. He received a letter from Levee stating that the Company desired to use him but that he must first join the Union because "We are obligated to hire a person in your position from (the) Union"; evidently Levee was under a misimpression, for the Company was under no such legal obligation. In late August, after discussions between Levee and Avildsen, Levee informed Goldbaum that the Company would not use him on the movie.

Goldbaum filed a charge with the Board, which subsequently issued a complaint. Under § 10(j) of the NLRA, 29 U.S.C. § 160(j), the Board sought, and the district court granted, a preliminary injunction enjoining the Union from interfering with Goldbaum's employment during the pendency of the Board's proceedings. Thereafter the Board held an administrative hearing, and the ALJ found that the Union had attempted to cause and did cause the Company not to hire Goldbaum. He found that Proscia's comments threatened action of a kind "for me to know" were coercive and determined that if the Union had not threatened retaliatory action, the Company would probably have hired Goldbaum. He therefore recommended the back pay order and, in light of another similar incident some nine months earlier,*fn1 the broad order to cease and desist. The Board affirmed his rulings, findings, and conclusions and adopted his recommended order. This petition followed.


The Union's position is that there was not enough evidence on the record to justify a finding that Proscia's threats caused Levee not to hire Goldbaum. It relies heavily on Levee's testimony that he did not recall that Avildsen had told him of the threats. Such reliance is misplaced. There is adequate evidence, notwithstanding the testimony of Levee, to support the ALJ's findings.

There is undisputed evidence to support the finding that Proscia did make a statement that threatened possible union action if the Company hired Goldbaum. Three of the four people at the luncheon meeting, including Proscia himself, testified to the making and the wording of at least part of the statement; the ALJ's finding as to the rest of the statement is supported by substantial evidence and is not clearly erroneous.

The record also supports the inference that Proscia's opposition to Goldbaum influenced Avildsen and therefore affected the hiring of Goldbaum. The evidence reveals that both Levee and Avildsen wanted to hire Goldbaum. Not only did they testify that this was their intent, but the Company had made a conditional offer of employment to Goldbaum, had arranged the terms of that employment, and had sent a letter of commitment. After the meeting with Proscia, however, Levee and Avildsen decided not to hire Goldbaum because he was not a member of the Union. The evidence does not suggest that Levee's desire to hire only Union members motivated this rejection, as petitioner contends. Avildsen made the offer to Goldbaum knowing that Goldbaum was not a member of the Union; the letter of commitment reflected the same understanding and yet at the same time a desire to hire Goldbaum. Levee's explanation of why he wanted Goldbaum to join the Union was that he felt that the Company was Obligated to hire only Union members. We believe that this evidence is sufficient to support the Board's findings that Proscia's threats affected Avildsen's actions and thereby caused the Company not to hire Goldbaum. Had Proscia made no threats, Avildsen's recommendation of Goldbaum would have been without ...

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