American Federation of Musicians of the United States and Canada

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 842 (N.L.R.B. 1969)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Musicians of the United
States and Canada , AFL-CIO (Pena Theatrical
Agency, Inc.) and National Association of
Orchestra Leaders , Inc. Case 1-CC-601
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 10, 1969, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled
proceeding, finding that the General Counsel had
failed to establish that the Board has jurisdiction
over the parties in this dispute, and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision, a motion to remand
the case to the Trial Examiner, and a brief in
support thereof. The Respondent filed an Answering
Brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
we agree with the Trial Examiner that for jurisdictional purposes the
determinative amount is Penza ' s income rather than the value of the
contracts booked by him, and that the General Counsel incorrectly relied
on Associated Musicians of Greater New York, Local 802, AFM,
AFL-CIO (Random Travel, Inc), 171 NLRB No 149 However, we do
not adopt the Trial Examiner ' s interpretation of the basis on which
jurisdiction was asserted over Charles Peterson Theatrical Productions,
Inc., the primary employer in that proceeding It is clear from the context
of his Decision that Trial Examiner Barker , in that case , used the phrase
"gross volume of business" and the term "revenues" as synonyms which
referred to the income to Peterson and did not intend thereby to designate
distinct matters.
'The General Counsel has moved that the Board remand this proceeding
to the Trial Examiner for the purpose of taking additional evidence on the
question of jurisdiction , i e , the identity of specific secondary employers
The motion , which was opposed by the Respondent , is hereby denied The
General Counsel had ample opportunity at the hearing to present such
evidence but declined to do so unless asked for this Having failed to
establish the Board 's jurisdiction , the General Counsel may not now have
another opportunity to do so, under the circumstances To remand the case
for further evidence bearing on jurisdiction at this time would be unjust
and inequitable to the Respondent
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER ZAGORIA, dissenting:
I would grant the General Counsel's motion to
remand this case 'for further evidence on the
question of jurisdiction.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L . JALETTE, Trial Examiner : This case was
heard in Boston , Massachusetts , on December 11, 19682
pursuant to a complaint issued on November 1 against
American Federation of Musicians of the United States
and Canada , AFL-CIO (hereinafter referred to as
Respondent) based on a charge filed on March 30, 1967,
by National Association of Orchestra Leaders, Inc.
(hereinafter referred to as Association ). The complaint
alleges that Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
Upon the entire record , including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties,' I make the following:
FINDINGS OF FACT
1. NATURE OF THE DISPUTE
Penza Theatrical Agency, Inc. (hereinafter called
Penza) is a Massachusetts corporation with its principal
office and place of business in Boston, Massachusetts,
where it is engaged in the business of "booking"
musicians and entertainers. A booking agent finds
employment for musicians and entertainers, and in order
to book musicians who are members of Respondent, a
booking agent must enter into a Booking Agent
agreement with Respondent. Prior to on or about March
6, 1967, Penza was party to such an agreement. It is
undisputed that on March 6, 1967, Respondent canceled
Penza's Booking Agent agreement, because Penza had
booked musicians at rates below the prevailing union
scale.
Thereafter, in the April 1967 edition of its official
journal "The International Musician," Respondent
published a notice of the revocation of Penza's Booking
Agent agreement.
Article 25, section 5, of Respondent's Constitution and
By-laws, provides, in substance, that no member of
Respondent shall secure employment through or with the
assistance of a booking agent who is not a party to a
subsisting Booking Agent agreement.
Article 25, section 3, provides, as follows:
Any member who shall violate the provisions of this
Article shall be subject to a fine not exceeding $500.00,
and to expulsion from the Federation, or both, and to
such other direction as the International Executive
Board may find proper in the circumstances.
The gravamen of the complaint is that Respondent by
publishing notice of the revocation of Penza's Booking
Agent agreement in its journal, in the context of
'Unless otherwise indicated, all dates refer to the year 1968
'At the hearing , the American Guild of Variety Artists, American
Federation of Television and Radio Artists, American Guild of Musical
Artists, and Actors Equity were permitted to intervene in this proceeding
as amicus curiae, without objection of the General Counsel , for the limited
purpose of filing briefs
177 NLRB No. 95
AMERICAN FEDERATION OF MUSICIANS
Respondent ' s By-laws described above, induced and
encouraged its members , who offer their services as
employees to orchestra leaders who are employers within
the meaning of the Act and who do business with Penza,
to refuse to perform services for such orchestra leaders in
violation of Section 8(b)(4)(i) of the Act. The same
conduct is alleged to have been violative of Section
8(b)(4)(ii ) of the Act in that it constituted restraint and
coercion of members of Respondent who are orchestra
leaders and employers within the meaning of the Act to
cease doing business with Penza.
Respondent contends that the complaint should be
dismissed because the operations of Penza do not meet
any of the Board ' s jurisdictional standards , and because
the conduct in question is not violative of Section 8(b)(4)
of the Act . Because I conclude that Penza does not meet
any of the Board's jurisdictional standards, and that no
other basis exists for the assertion of jurisdiction herein, I
do not reach the issue of the legality of Respondent's
conduct.
11. JURISDICTION
Penza Theatrical Agency is operated by its president,
Robert Penza. There are no employees. Penza testified
that his annual gross volume of business exceeds $500,000
and that for the calendar year 1966, (the calendar year
preceding the filing of the charge herein ) his gross volume
of business was approximately $700,000. However, what
Penza described as his gross volume of business was in
actuality the total dollar amounts of the contracts (that is,
bookings) which he obtained for musicians and other
entertainers . In other words , his gross volume of business
consisted of the amounts , whether denominated wages or
fees, to be paid the performers.
Penza's revenues for the services he performed, as
distinguished from his alleged gross volume of business,
were as follows: for the fiscal year ending March 31, 1966,
$31,395; for the fiscal year ending March 31 1967,
$48,736; and for the fiscal year ending March 31, 1968,
$27,790.'
Between 25 and 50 percent of the engagements booked
by Penza call for the interstate travel of performers. Thus,
for the calendar year 1966, between $175,000 and
$350,000 of the dollar amounts paid to performers
pursuant to bookings obtained by Penza involved
interstate travel. Similarly, between 25 and 50 percent of
Penza ' s revenues are derived from interstate engagements.
In addition to the foregoing, the only other evidence
offered by General Counsel to support the assertion of
jurisdiction was the testimony of Charles Peterson,
treasurer of the Association. Peterson testified that the
Association has approximately 800 orchestra
leader-members, 700 of whom are members of
Respondent , and that these 700 alone do an annual gross
volume of business of about $ 16 million , several million of
which is derived from engagements involving interstate
travel.
Respondent has approximately 290,000 members. It
was stipulated that some of Respondent ' s members act as
orchestra leaders on single engagements or club dates and
'Books produced at the hearing by Penza showed gross revenues for the
same periods as follows : March 31 , 1966, $32 ,895, March 31,1967,
$52,996; March 31, 1968, $30,772. Penza explained that these figures were
slightly higher than those listed above , because his books did not reflect
refunds The figures recited above were supplied by Penza's accountants
and they are the figures which I accept.
843
are employers within the meaning of the Act for those
engagements.
III. ANALYSIS AND CONCLUSIONS
General Counsel contends that jurisdiction should be
asserted herein on the basis of Penza's operations, and/or
on the operations of the secondary employers affected by
the secondary activity.
As to Penza, General Counsel contends jurisdiction can
be asserted on the basis of either the retail or the nonretail
standard. The retail standard is assertedly satisfied by
Penza's gross volume of business of $700,000, and the
non-retail by the fact that $175,000 to $350,000 of that
volume of business represented engagements involving
interstate travel. Query: is Penza's volume of business
measured by the dollar amounts of the contracts he
negotiates or by his revenues for his services in negotiating
the contracts?
To my knowledge, the Board has not had occasion to
rule on this question, at least as it relates to booking
agents . In support of his contention that the dollar
amounts of the contracts is the measure of Penza's
volume of business, General Counsel cites Associated
Musicians of Greater New York Local 802, AFM,
AFL-CIO (Random Travel, Inc.), 171 NLRB No. 149.
In that case , the Trial Examiner found that during the
fiscal year ending May 31, 1966, Charles Peterson
Theatrical Productions, Inc., of which the same Charles
Peterson who testified in this proceeding is president, had
a gross volume of business of about $100,000, from which
it received "revenues totaling $45,833 for services
performed outside the State of New York." During the
same period, it received "revenues" totaling $39,642 for
services for commercial clients within the State of New
York, $8,000 of which represented services to commercial
clients who were themselves engaged in commerce under
the Board's direct inflow or outflow jurisdictional
standards . Accordingly, the Trial Examiner concluded that
Peterson was engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
According to General Counsel, the assertion of
jurisdiction over Peterson in the above cited case was
based on its annual gross volume of business, including
the entire amounts paid under the contracts which he
booked. This contention is based on the testimony of
Peterson in the instant case that of the $100,000 gross
volume of business which his firm had in the fiscal year
ending May 31, 1966, $65,000 was attributable to his
operations as a booking agent, as opposed to his
operations as an orchestra leader, and the $100,000
included the entire amounts paid under the contracts
which he booked and not merely the profit earned by his
corporation.
Peterson's testimony in this proceeding is represented as
being the same presented in Random Travel, and General
Counsel argues that it follows that, in asserting
jurisdiction over Peterson, the Board relied upon
Peterson's booking agent operations and his gross volume
of business, including the entire amounts paid under the
contracts booked by Peterson.
I do not credit Peterson's testimony, because as I read
Trial Examiner Barker's findings, Peterson's testimony
before me is inconsistent with the findings in Random
Travel. The Trial Examiner was very explicit in explaining
how he arrived at a figure in excess of $50,000 for the
assertion of jurisdiction. Thus he stated, "Of this total
gross volume of business [$100,0001 Peterson Productions
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received revenues totaling $45,833 for services performed
outside the State of New York . In that one sentence, the
Trial Examiner used both the term "gross volume of
business" and the term "revenues", clearly indicating that
he regarded them as distinct matters . If on the record
before him, it appeared that Peterson received "revenues"
totaling $45,833 for services performed outside the State
of New York, $65,000 of Peterson's gross volume of
business could not have been attributable to his operations
as a booking agent . In short, Random Travel does not
support the General Counsel ' s contention that the total
dollar amounts under the contracts booked by Penza
represent the yardstick for determining whether or not to
assert jurisdiction over Penza.
Despite the foregoing , arguably it would be appropriate
to assert jurisdiction over Penza on the basis of the total
dollar amounts of the contracts he negotiated since, as a
result of these contracts, there was interstate travel by
performers for services in significant amounts valued from
$175,000 to $350,000 during the calendar year 1966.
Nevertheless , the total dollar amounts of the contracts is
not a proper basis for computing Penzas volume of
business.
In Devco Diamond Rings , 146 NLRB 556, the
employer was engaged in the operation of a jewelry repair
shop and annually shipped , on a projected basis , jewelry
valued in excess of $50,000 to retail stores outside the
State of Missouri wherein the employer was located. The
employer ' s receipts for sales and services projected over a
1-year period amounted to about $29,400 . In concluding
that it would not effectuate the purposes of the act to
assert jurisdiction the Board stated as follows : "When, as
here, an employer performs work on goods owned by
others, it is the value of the employer' s sales and services,
and not the value of such goods, which the Board
considers in determining whether or not to assert
jurisdiction."
In Mid-West Pool Car Ass'n., Inc., 114 NLRB 721, the
employer was a nonprofit organization formed for the
purpose of having merchandise loaded on freight cars for
its members, distributing the merchandise to them on
arrival in Denver, and effecting savings for them by taking
advantage of carload freight rates . The employer made no
out-of-state purchases . Nor did it at anytime have title to
the merchandise it handled . Although the goods came
from out of state all deliveries were made within the state.
The employer assessed each member its proportionate
share of the freight charges and expenses of operation,
and for the year from May 1, 1954, through April 30,
1955, the total of such assessments was $356,122, of which
$268,375 was for freight charges . The Board concluded
that in collecting freight charges from its members the
employer was merely acting as their agent , and that the
money collected for this purpose did not constitute
revenue to the employer.
In the instant cases , Penza does not even collect the
amounts of the contracts which are relied upon for the
assertions of jurisdiction ; those amounts are paid to the
performers and all that Penza ever receives are his
commissions . While there is interstate travel by the
performers , both Devco and Mid- West Pool demonstrate
that this is not the determinative factor.
It appears to me that inclusion of the entire amounts of
the contracts to determine whether or not to assert
jurisdiction over Penza would be tantamount to
attributing to Penza the value of the services of the very
orchestra leaders who the General Counsel contends are
the secondary employers in this case . Whether or not the
operations of the secondary employers are sufficient to
warrant the assertion of jurisdiction in this case presents
other considerations.
General Counsel ' s argument for relying on the
operations of the secondary employers is not entirely
clear . It is, of course , settled law that in cases involving
secondary activity which may be violative of Section
8(b)(4) of the Act, where , as here, the primary employer's
operations do not meet the Board ' s jurisdictional
standards , the Board will take into consideration for
jurisdictional purposes not only the operations of the
primary employer , but also the entire operations of the
secondary employers at the location affected by the
alleged conduct . Suffolk County District Council of
Carpenters (T & D Roofing Co.. Inc.), 173 NLRB No.
188. The questions yet remain in any case : who are the
secondary employers and what is the location affected by
the alleged secondary activity.
General Counsel points out that in Jemcon
Broadcasting Company , 135 NLRB 362, the Board
construed the term "location involved " in the unlawful
conduct broadly enough to include the entire geographical
area in which the secondary employers were located. He
does not, however , pursue the matter further by stating
what geographical area should be included in this case.
Since Respondent' s April 1967 issue of "The International
Musician" with the notice of revocation of Penza's
Booking Agent agreement was presumably distributed to
all Respondent' s members throughout the United States,
arguably the " location involved" is coextensive with that
distribution and all leader-members of Respondent in the
United States who are employers within the meaning of
the Act are the secondary employers in this case.
Assuming this to be General Counsel ' s theory (and I can
glean no other), while it may serve to identify the
secondary employers as a class, there still exists the
necessity for a showing that one or more of the secondary
employers, standing alone , meets the jurisdictional
requirements . Commission House Drivers, etc. (Bondi's
Mother Hubbard Market ), 118 NLRB 130. Thus, in
Jemcon , supra , the Board specifically excluded from its
consideration for jurisdictional purposes two secondary
employers the extent of whose operations did not appear
in the record.
There is no evidence in this case of any secondary
employer who meets the Board ' s standards for the
assertions of jurisdiction . It appears that to satisfy the
requirement that there be one secondary employer who,
standing alone, meets the Board ' s jurisdictional
requirement , General Counsel is relying on the operations
of the 700 orchestra leaders who are members of the
Association , as well as members of Respondent, and who
have an annual gross volume of business of approximately
$16 million, several million of which is attributable to
engagements involving interstate travel . Implicit in the
reliance on these facts is the argument that the
Association constitutes a multiemployer association whose
total volume of business may be used as a basis for
asserting jurisdiction.' However, the Board has expressly
rejected such an argument in Marty Levitt , 171 NLRB
No. 94 . In that case , the Board had been requested to
apply its existing jurisdictional standards on a
'It is noted that in par. 8(a) of this complaint, General Counsel alleges
that 'The Charging Party [Association], together with its member
orchestra leaders, is and at all times therein material has been, engaged in
commerce within the meaning of the Act.
AMERICAN FEDERATION OF MUSICIANS
multiemployer basis by combining the business of all
leaders who are members of an employer association to
which full bargaining powers had been delegated. The
Board stated,'
We do not find merit in the proposal for aggregating
the business of leaders who are members of an
employer association. Although the Board has asserted
jurisdiction by totaling the business volume of an
association's members, it has done so only where the
members of the multi-employer association participate
in or are bound by multi-employer bargaining.
Although the National Association of Orchestra
Leaders, an employer association to which Levitt
belongs, is authorized to bargain collectively for its
members it has never done so. In fact, the Union has
specifically rejected the Association's demand for
multi-employer bargaining and stated that it prefers to
bargain separately with each leader. Apart from
collective-bargaining powers, the Association has no
control over its members, all of whom operate
independently. Since there is no history of
multi-employer bargaining , no prospect for such
bargaining in the future, and the Association, apart
from bargaining powers, has no control over its
members, there is no justification for assertion of
jurisdiction on a multi-employer basis.
On the basis of that case, the operations of the
members of the Association cannot be aggregated to
establish that there exists, standing alone, a secondary
employer who meets the Board's jurisdictional standards.
And while the operations of all the Association's members
who are also members of Respondent may be aggregated
under Commission House Drivers, supra, they cannot be
aggregated to form the secondary employer who meets the
jurisdictional requirements.
In the foregoing, I have glossed over the requirement
that the operations of secondary employers may be used
for jurisdictional purposes to the extent they are affected
by the alleged secondary activity. When this requirement
is invoked, it becomes even more evident that the record
herein does not support the assertion of jurisdiction. To
'Fns. omitted.
845
look to all orchestra leaders who are employers and
members of Respondent as secondary employers, as
General Counsel appears to contend, assumes that all are
doing business with Penza within the meaning of Section
8(b)(4)(B) and all are affected by the alleged secondary
conduct. But certainly, not all those leaders are doing
business with Penza, either actually, or in a prospective or
potential sense . To so hold would mean that the moment
an individual became a Booking Agent, although he had
never booked a performer, his agency could not be
revoked and the fact of such revocation published without
making such action subject to the Board's jurisdiction. It
is obvious that the relationship created between Penza and
the class of employers who are leader-members of
Respondent by the Booking Agent agreement with
Respondent is too tenuous or remote to justify reliance on
the operations of the class to assert jurisdiction. Rather, it
was incumbent on General Counsel to establish that Penza
was actually doing business with at least one secondary
employer who meets the Board's jurisdictional standards.
I am mindful of the fact that the "club date" field
(which is what Penza's operations appear to be concerned
with) is an "industry affecting commerce";` nevertheless,
the Board has not undertaken to assert jurisdiction in
secondary boycott cases solely on the basis that the
industry was one affecting commerce. For example, in
Sheet Metal Workers Int'l Assn., Local 299, etc., 131
NLRB 1196, the Board asserted jurisdiction not because
the secondary employers were engaged in an industry
affecting commerce, but because the primary employer
met the Board's standards for the assertion of jurisdiction.
In short, since Penza's operations are insufficient to
warrant the assertion of jurisdiction, and since there is no
evidence that the alleged secondary conduct affected the
operations of any secondary employer who meets the
Board's jurisdictional requirements, I shall recommend
dismissal of the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing, it is recommended that
the complaint be dismissed in its entirety.
`Carroll v . Association of Musicians of Greater New York, 206 F.Supp.
462, 474-475. (S . D.N.Y.) affd . 316 F.2d 574 (C.A. 2).