American Guild Of Variety Artists

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 580 (N.L.R.B. 1969)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Guild of Variety Artists , AFL-CIO
(Harrah 's Club, et al.) and Charles Peterson. Case
20-CC-782
June 11, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On February 11, 1969, Trial Examiner James R.
Webster issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial
Examiner ' s Decision . The Trial Examiner also found
that the Respondent had not engaged in certain
other alleged unfair labor practices and
recommended dismissal of those allegations of the
complaint . Thereafter , the General Counsel, the
Respondent , and the Intervenor, Harrah 's Club,
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, 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 and briefs, and
the entire record in this case , and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner only to the extent consistent
herewith.
Harrah's Club and Sparks Nugget operate
gambling casinos in the Reno -Lake Tahoe area, and
provide other services including entertainment for
their customers. In their main showrooms , the clubs
employ on a year-round basis what are known as
house bands , the primary function of which is to
accompany top-name entertainers appearing in the
showrooms . From March 1 through April 30, 1968,
these house bands , represented by the American
Federation of Musicians , went on strike against
Harrah 's, the Sparks Nugget and other clubs in the
area . In sympathetic support of the AFM strike,
Respondent AGVA sent telegrams to its members
Gaylord and Holiday , Dinah Shore , and Tennessee
Ernie Ford (scheduled to perform at Harrah's) and
Sid Ceasar (scheduled to perform at the Nugget)
requesting that they honor the AFM picket lines or
suffer union disciplinary action.
The Trial Examiner found that Respondent's
telegrams to Gaylord and Holiday and to Sid
Ceasar coerced and restrained them not to work at
the casinos in violation of Section 8(b)(4Xii)(B) of
the Act . He dismissed similar allegations against
Respondent with respect to the telegrams it sent to
Dinah Shore and Tennessee Ernie Ford on the
ground that these entertainers had, or would have,
performed struck work for Harrah ' s Club and,
therefore , were allies of that primary employer. We
find that Respondent engaged solely in permissible
primary activity with respect to the pressures it
exerted on all of these entertainers.'
It was not the intent of Congress , nor has the
Board construed the language of Section 8(b)(4), to
proscribe primary action by striking employees who
are engaged in a legitimate labor dispute with their
employer .2 For example , little would be left of the
right to strike if striking employees were denied the
concomitant right of peacefully picketing the
immediate business of their employer. Yet, plainly,
the object of picketing is frequently to influence
third persons to withhold their business or services
from the struck employer during the course of the
dispute . In terms of effect, then , there may well be
no distinction between lawful primary picketing and
unlawful secondary picketing proscribed by Section
8(bX4). One important test of the lawfulness of a
union ' s picketing activities in the course of its
dispute with an employer is the identification of
such picketing with the actual functioning of the
primary employer 's business at the situs of the labor
dispute .3 Thus, as the Supreme Court has recently
stated in affirming those Board Decisions which had
adopted this general principle , direct appeals to "all
those approaching the situs whose mission is selling,
delivering or otherwise contributing to the
operations which the strike is endeavoring to halt"
to withhold their services constitutes traditional
primary activity outside the scope of Section
8(bX4). 4
In applying these traditional principles to the
present case , it is not and cannot be contended that
Respondent ' s actions called for anything but the
refusal of the entertainers to cross the picket lines of
the striking musicians at the clubs in question. The
picket lines were established in furtherance of a
primary strike of the employees of the picketed
casinos, and the telegrams advised the stars that
AGVA supported the strike and instructed them to
'In view of our disposition of the issues raised by the allegations of the
complaint, infra, we deem it unnecessary to decide whether any of the star
entertainers involved herein, or all of them , performed or agreed to
perform "struck work" within the meaning of N L R. B. v. Business
Machines and Office Appliance Machines Conference Board , etc, (Royal
Typewrlrers), 228 F .2d 553 , or whether they are employees within the
meaning of Section 2(3) of the Act , as contended by Respondent.
'See Local 761 . ICE v. N L.R.B. (General Electric Company). 366 U.S.
667, and cases cited therein.
'International Brotherhood of Teamsters, Local 807 (Schultz
Refrigerated Services, Inc.). 87 NLRB 502, 505.
'United Steelworkers v. N.L.R B. (Carrier Corporation), 376 U .S. 492,
499. See also Oil Workers . Local 346 (The Pure Oil Company), 84 NLRB
315, 319 ; International Brotherhood of Teamsters, Local 807 (Schultz
Refrigerated Services , Inc.). 87 NLRB 502, 505; Newspaper and Mail
Deliverers Union (Interborough News Company), 90 NLRB 2135,
2149-2150; Sailors Union of the Pacific (Moore Drydock), 92 NLRB 542,
551-552.
176 NLRB No. 77
AMERICAN GUILD OF VARIETY ARTISTS
honor the picket line. The conduct of the
Respondent in advising its members to honor the
AFM picket lines was not substantially different
from that of the AFM itself in conducting the
picketing at the situs of the disputes , namely at the
clubs themselves . , Accordingly, we find that
AGVA'S conduct does not fall into the category of
illegal secondary activity by virtue of the fact that it
assisted another union in that unions's labor dispute.
5
It is clear , moreover , that the work of the AGVA
stars here involved not only contributed "to the
operations which the strike ... [was] endeavoring to
halt" but in fact was directly related to the normal
operations of these casinos . The record demonstrates
that the shows in which the stars were engaged to
perform are an important means of enticing the
public to the clubs in the hope and reasonable
expectation that once inside the club they can be
induced to try their luck in the casinos. Moreover,
the actual performances of the star-type entertainer
are coordinated into the overall show offered by the
club by club managers as to timing , pace, material,
rehearsals , etc., all with a view to enhancing the
financial success of the gambling enterprise. The
presence of such entertainers, then , is a customary
and necessary adjunct to the Nevada casino
operations . Accordingly, inasmuch as the work of
the star performers was in fact inextricably involved
with and necessary to the normal operations of the
casinos, and as Respondent ' s telegramed instructions
to all of the performers involved to honor the AFM
picket line appealed for and induced action only at
the situs of the dispute by persons "contributing to
the operations which the strike was endeavoring to
halt," we find that they constituted permissible
primary activity .6 We shall , therefore , dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
581
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case with all
parties represented was heard in Reno, Nevada, on
November 18, 19, and 20, 1968, on complaint of the
General Counsel and answer of American Guild of
Variety Artists, AFL-CIO, herein called Respondent or
AGVA. The complaint was issued on August 22, 1968, on
a charge filed April 11, 1968. The complaint alleges that
Respondent threatened, coerced, or restrained certain
performing artists for the object of forcing or requiring
them to cease doing business with Harrah's Club and
Sparks Nugget, Inc., in support of a labor dispute that the
American Federation of Musicians, AFL-CIO, herein
called AFM, had with Harrah's Club and Sparks Nugget,
and other similar establishments in the area, thereby
engaging in violations of Section 8(b)(4)(ii)(B) of the
National Labor Relations Act, herein called the Act.
The General Counsel, Respondent, and Harrah's Club
have filed briefs herein an they have been carefully
considered.' Upon the entire record and my observation of
the witnesses, I hereby make the following.
FINDINGS OF FACT
1. THE BUSINESSES OF THE PRIMARY EMPLOYERS
Harrah's Club is a Nevada corporation with places of
business in Reno and Lake Tahoe, Nevada, where it is
engaged in the operation of restaurants and gambling
casinos. During the past year in the course and conduct of
its business operations, it received gross revenue in excess
of $500,000 and purchased and received goods valued in
excess of $50,000 directly from points outside the State of
Nevada.
Sparks Nugget, Inc., is a Nevada corporation with a
place of business in Sparks, Nevada, where it is engaged
in the operation of a gambling casino, restaurants, and a
hotel. During the past year, Sparks Nugget received in the
course and conduct of its business operations gross
revenue in excess of $500,000. During the same period it
purchased and received goods valued in excess of $50,000
directly from points outside the State of Nevada.
I find that Harrah's Club and Sparks Nugget, Inc., are
employers engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(6)
and (7) and Section 8(b)(4) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
'Milwaukee Plywood Conipani•. 126 NLRB 650. Nor does the General
Counsel contend that the activity in question was unlawful because AGVA
was not directly involved in a labor dispute with the casinos.
'We reject the apparent view of the Trial Examiner and theory of the
General Counsel that , because the star entertainers are independent
contractors , rather then employees, appeals to them to honor a picket line
lose their character as permissible primary activity when accompanied by
threats of internal disciplinary action by the union of which they are
members . In our view , the decision in Tennessee Glass Compani•. Inc.. 164
NLRB No. 19, rests on the fact that the independent contractors involved
therein were asked, not simply to observe a picket line but to stop doing
business completely with the struck employer , under pain of union
disciplinary action . Though we continue to adhere to the view that union
disciplinary action directed against employer-members and independent
contractor-members of the union may, in some circumstances , constitute,
restraint , or coercion within the meaning of Section 8(bx4Xii ), imposition
of such sanctions does not convert appeals for permissible action into
appeals for an unlawful object.
American Guild of Variety Artists, AFL-CIO,
Respondent herein, American Federation of Musicians,
AFL-CIO, herein called AFM, and Reno Musicians
Protective Association No. 368, AFL-CIO, herein called
Local 368, AFM, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Prefatory Statement
The issues are as follows: (1) Whether the artists
On January 13, 1969 , Attorney for Intervenor , Harrah's Club, filed
motion to correct official transcript . No opposition thereto has been filed
and the motion has been carefully considered . The motion is granted.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved herein, Gaylord and Holiday, Sid Caesar, Dinah
Shore, and Tennessee Ernie Ford, are employees or
independent contractors in their relations with Harrah's
Club and Sparks Nugget. (2) If all or any of them are
independent contractors, are they allies of either of these
clubs in connection with their performances at these clubs
during the strike of the American Federation of
Musicians? (3) And, if they are independent contractors,
did Respondent threaten, coerce or restrain them not to
work for Harrah's Club or Sparks Nugget by language
contained in telegrams dispatched by Respondent to each
of these entertainers?
The American Federation of Musicians and Reno
Musicians Protective Association No. 368 had a labor
dispute and a strike at Harrah's Club and Sparks Nugget
and other hotels in Reno, Nevada, for the period of
March l to April 30, 1968.
On April 3, 1968, Respondent sent each of the
above-named entertainers telegrams regarding their
appearances at Harrah's Club or Sparks Nugget during
the period of the strike. Telegrams were sent by Penny
Singleton, Second Vice President of Respondent, to
Gaylord and Holiday, Sid Caesar and Tennessee Ernie
Ford as follows:
This is official notice that the AGVA National Board
has voted to approve the AFM strike and to honor the
AFM picket lines in Reno and Tahoe. You are
therefore advised that, according to AGVA
Constitution, you are not to perform in any of the
Reno-Tahoe establishments where AFM is on strike.
Telegrams were sent by Truman McDaniel, the San
Francisco Branch Manager of Respondent, to Dinah
Shore and Tennessee Ernie Ford as follows:
To Dinah Shore:
AGVA National advisors are not to perform at any
Reno-Tahoe establish presently struck AFM or they are
in violation of AGVA Constitution. [as received]
To Tennessee Ernie Ford:
AG VA National advises no acts are to perform at
any Reno-Tahoe establishment presently struck by
AFM or they are in violation of AGVA Constitution.
exceed a maximum of 4 shows nightly to be played during
a consecutive 6-hour period. They were scheduled to
receive the sum of $8,500 per week for performances at
Reno and $12,500 per week for performances at Lake
Tahoe, with 10 percent of their gross weekly
compensation to be deducted by Harrah's Club and
forwarded to their agent in Los Angeles, California. To
comply with Harrah's policy of no risque material,
Gaylord and Holiday agreed to review their material and
to delete anything they felt might be objectionable and to
submit any portion of their act that they thought might be
questionable or borderline to the entertainment director of
Harrah's for approval.
Gaylord and Holiday constitute a comedy team with
singing . With them in their act are two musicians, one a
drummer and the other an organist or pianist. These two
persons are selected and hired by Gaylord and Holiday
and paid by them. The pianist, who is also their
conductor, has a contract with Gaylord and Holiday at an
annual salary , paid weekly. The drummer is paid when the
act is performing. Harrah's Club makes no deductions
from the weekly compensation paid to Gaylord and
Holiday except the 10 percent that goes to their agent.
Gaylord and Holiday, however, make social security and
other deductions from the wages paid the drummer and
the pianist , and I find that they are employees of Gaylord
and Holiday. The pianist and drummer did not
accompany Gaylord and Holiday during the period of the
AFM strike.
Harrah's Club determines when the act shall perform
and how long it shall perform, but Gaylord and Holiday
determine the contents of the act except that they must
comply with Harrah's policy on risque material.
The main lounges where Gaylord and Holiday appeared
are not Harrah's principal show rooms at Reno or Tahoe
but are smaller rooms for entertainment seating
approximately 250 persons each. Gaylord and Holiday do
a self-contained act and did not utilize a house band or
chorus line in their performances at Harrah's. By their
contract with Harrah's, they received 100 percent sole star
billing in the Main Lounges, and if any other act appeared
in these lounges with them, it was a relief act.
B. Gaylord and Holiday
At the time of the telegram to Gaylord and Holiday,
they were performing at the Main Lounge of Harrah's
Club at Lake Tahoe, Nevada. They had just completed a
4-week engagement at the Main Lounge of Harrah's Club
in Reno, Nevada, which engagement was from March 1
through March 28, 1968. The engagement at Lake Tahoe
was scheduled for 4 weeks, from April l through April 28,
1968. Gaylord and Holiday completed this engagement.
The contract for the performance of Gaylord and
Holiday at Harrah's Club was executed in August 1966
and covered their performances for a total of 30 weeks to
be performed in 1967 and 1968. By the terms of the
contract, Harrah's Club is designated "employer" and
Gaylord and Holiday are designated as "employees." The
contract is on a standard form of the American
Federation of Musicians. All of their performances in
1967 and 1968 were scheduled for the Main Lounges of
Harrah's Club at Reno, Nevada, and Lake Tahoe,
Nevada. The contract specified the days and hours of
work and the weekly compensation that they were to
receive. They were to perform 6 days weekly, not to
C. Sid Caesar
By contract dated April 2, 1968, on an AGVA standard
form contract, Sparks Nugget engaged Sid Caesar to
entertain at its main show room, the Circus Room, in
Sparks, Nevada, for the period of April 5 to 11, 1968, for
the sum of $20,000. This contract was hastily negotiated
for the reason that the act that had been scheduled for
this period would not or could not perform because of the
AFM strike.
Sid Caesar and his supporting actor, Mickey Deems,
drove to Sparks, Nevada, on April 3, 1968. After their
arrival, Caesar received the AGVA telegram. He decided
not to perform.
Caesar performs various kinds of acts. One of his acts
consists of comedy monologues in association with
Mickey Deems. Caesar determines the contents of his act,
and a club, such as Sparks Nugget, however, can ask him
to delete any portion it considers risque.
Generally, a show in a room such as the Circus Room
consists of a production number with chorus girls, one or
two supporting acts, and a star. A singing star usually
brings his own music, his conductor and a pianist. A band
is furnished by the Club. A show normally runs about 75
AMERICAN GUILD OF VARIETY ARTISTS 583
minutes. It is standard practice for the chorus line to
perform for approximately 5 minutes. It is Caesar's
practice to fill the remaining 70 minutes with himself and
his people.
Caesar selects and compensates his supporting actors.
The Nugget makes no deductions from the compensation
paid Caesar except for the AGVA trust funds as specified
in the contract. The Nugget determines the time for the
performances, the length of the performances and the
rehearsal times.
D. Dinah Shore
On March 19, 1968, a contract on an AGVA standard
form was negotiated between Harrah's Club and Dinah
Shore, a singing star , for her performance for 3
consecutive weeks, 7 days weekly, commencing on April
4, 1968. Remuneration was in excess of $50,000. She was
to provide and pay for two supporting acts, and Harrah
agreed to provide and pay for an orchestra consisting of
21 musicians with instrumentation as designated by Shore.
It was anticipated by Shore and her agents that the
musicians ' strike would be over prior to the
commencement of her performance. Through her agents
she contracted with comedian Pat Henry to appear with
her as a supporting act, and she contracted with the Little
Steps, a dancing group of four persons, also to appear
with her on this show. Harrah's Club was informed of
their identity and the amounts of their contracts. Harrah's
was interested in the caliber of the supporting acts, but
did not take any part in the selection of these acts nor in
the amount of compensation they were to receive. Shore is
normally accompanied by her personal manager, a
hairdresser, and two musicians - a pianist-conductor and
a drummer. These are paid by her and she deducts
necessary employee withholdings from their wages.
As the date for the engagement approached, a meeting
was held by those representing Dinah Shore in an effort to
work out a means by which she could appear without the
musicians, who were on strike. The thought of using a
choral group of 20 voices was considered, but on April I
or 2, 1968, it was decided that she would not appear as no
musicians could be furnished by Harrah's Club and as she
was unable to work out any means by which she could
perform without musicians . On April 3, 1968, she received
the telegram from AG VA.
E. Tennessee Ernie Ford
On December 12, 1967, on an AGVA standard form
contract, Harrah's Club negotiated for the services of
Tennessee Ernie Ford for an engagement at the Headliner
Room, Harrah's Club in Reno, Nevada, for a period of 2
weeks of 15 shows weekly, commencing on March 28,
1968, with remuneration in excess of $50,000. Ford
entertains by singing and telling stories . He agreed to
provide and pay for one supporting act and Harrah agreed
to provide and pay for a 17-piece band instrumented as
advised by Ford. By agreement dated January 23, 1968,
the engagement was changed from a 2- week engagement
to a 3-week engagement , commencing on March 21, 1968.
Ford commenced the performance on the scheduled
opening date and performed for the first week and 5 days
of the second week. He then discontinued his engagement
upon receipt of the AGVA telegram.
Ford's contracts and many other business matters are
handled for him by Bedford Corporation, a corporation
set up for this purpose. Prior to the Harrah's Club
engagement, Bedford Corporation contracted with the
Good Time Singers as a supporting act for this
engagement, but they did not appear. Accompanying Ford
on this engagement, as well as on other engagements,
were his personal manager, his conductor, and a man who
functions as road manager. These persons receive their
wages from Ford or Bedford Corporation.
As with all other performers, Harrah's Club determines
the time of the performance and the length of the
performance. Ford determines the songs and monologues.
The proposed schedule for the contents of the show
provided for a production number lasting 4 minutes, songs
and monologues by Ford for 24 minutes, Bobbi Martin
for 10 minutes, Good Time Singers for 18 minutes, Ford
with the Good Time Singers for 4 minutes, and Ford's
songs and monologues for 25 minutes. The total show was
scheduled for 85 minutes. Bobbi Martin was booked
directly by Harrah's Club. The proposed performance was
not used as the Good Time Singers did not appear; the
Club was unable to furnish musicians, and Ford,
therefore, did not sing and told stories only.
F. Conclusions
I find that each of the artists involved herein, Gaylord
and Holiday, Sid Caesar, Dinah Shore, and Tennessee
Ernie Ford are independent contractors and not employees
in their relationships with Harrah's Club and Sparks
Nugget. This is based principally on a lack of the right of
the clubs to control the contents of their acts except as to
risque material, the specialized and individualistic nature
of the performances of the artists, the fact that their
relationships with the clubs are limited and not
continuous, and the fact that the artists are responsible for
all expenses incident to the assemblying and presentation
of their acts and they bear the risks of profit or loss in
completing an engagement within the contract
compensation. The fact that the AGVA form contract
refers to the club operators as employers and the artists as
employees is not controlling. Thus, I find that the artists
involved herein are secondary employers or persons to the
dispute between AFM and the clubs. I find that they are
persons or employers engaged in commerce or in an
industry affecting commerce within the meaning of
Section 2(6) and (7) and 8(b)(4) of the Act.'
A union may make an appeal to secondary employers
to cease engaging in business with a primary employer
with whom the union has a dispute,3 but a union is
precluded by Section 8(b)(4)(ii)(B) from accompanying
such appeals with threat, restraint or coercion.'
However, by the "ally doctrine" a secondary employer
may be juxtaposed into a position with a primary
employer, as to the matters involved in a labor dispute, so
that his operations stand in place of those of the primary
employer. Then, Section 8(b)(4)(ii)(B), applicable to
secondary employers, would not be applicable to him; and
a union may engage in the same conduct toward him as it
may engage in against the primary employer.
'The Light Company, Inc, 121 NLRB 221; National Symphony
Orchestra Assn. 157 NLRB 735
'International Rice Milling Co v. N L R B.. 341 U.S. 665, with the
exception created by the reserved gate doctrine which precludes a union
from doing even this in certain situations Loc 761. IUE (General Electric
Co.) v. N L R B. 366 U.S 667.
'East Bay Counties Dry Cleaners Assn, 167 NLRB No. 6; Tennessee
Glass Company. Inc. 164 NLRB No. 19.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to whether or not the artists involved herein are
allies of Harrah ' s Club and Sparks Nugget , the primary
employers , depends on whether or not the artists
performed or supplanted struck work - the work of the
striking musicians , or were called upon to perform or
supplant such work .' If, in order to fill in the void created
by the absence of the musicians , an artist entertains for a
period longer the he would have done if the musicians
were present, then he in effect would be doing struck work
even though the artist ' s entertainment during this
additional time is not or would not be identical to that of
the musicians . Regardless of its nature , it would be
entertainment replacing struck entertainment. On the
other hand , if an artist did no more entertaining than he
would have done in the absence of the strike , then he
would not be an ally.
Gaylord and Holiday perform a self-contained act and
the musicians of Harrah ' s were not scheduled to work
with them . Gaylord and Holiday did not perform in
Harrah ' s main show room . They supplanted no struck
work and thus were not allies of Harrah ' s Club in its
dispute with AFM.
Tennessee Ernie Ford was in the midst of his
engagement when he received AGVA' S telegram . As there
was no musical accompaniment for his songs, he
abandoned his original schedule for the show and
entertained with stories only. In filling in and completing
the show in this manner, he was in part supplanting the
work of the band . In so doing, he became an ally of
Harrah ' s Club in its dispute with AFM.
Sid Caesar and Dinah Shore did not perform. Dinah
Shore was unable to perform without the band and
because of its absence she decided not to appear prior to
the receipt of the AGVA telegram . Had she performed
with choral accompaniment or had she substituted some
other type of entertaining for her singing with the band,
she would have been an ally of Harrah ' s Club.
Sid Caesar is primarily a comedian and not a singer
and he could have completed his part of the show without
musicians . He normally performs 70 minutes of a show
without utilization of a band . However , on receipt of the
AGVA telegram , he decided not to appear. As he
normally performs 70 minutes of his show with himself
and his people and without the house band , I find that he
was not scheduled to perform struck work and was not an
ally of Sparks Nugget.
Respondent ' s telegrams to the artists , however , did not
differentiate between struck work and other work. Each
was ordered "not to perform" in any of the Reno-Tahoe
establishments being struck . McDaniel ' s telegrams warned
that acts that performed would be in violation of AGVA
constitution . Singleton ' s telegrams advised that "according
to AGVA Constitution ," the acts were not to perform.
Section I, article XVII, of Respondent's constitution
provides as follows:
Any member who shall violate or fail to observe any of
the requirements of this Constitution or any of the
By-Laws, Rules , Regulations , Orders or Directives of
the Association , or duly authorized committee or
representative, or who shall fail to comply with a
decision of any branch executive or other hearing
committee or arbitration panel in connection with
compliance with the provisions of any minimum basic
agreement, engagement contract , or rule or agreement
`N.L.R 6--v. Royal Typewriter Co. 228 F.2d 553 (C.A. 2): General
Metals Corp .. 120 NLRB 1227; Climax Machinery Co.. 86 NLRB 1243.
respecting AGVA franchised agents , or any member
who shall in any way be indebted to the Association
may, after trial, be either fined, censured, suspended,
expelled from membership or placed on the National
Unfair list.
Respondent ' s rule 14 provides as follows:
No Member of AGVA shall cross an AGVA picket
line, or any picket line supported or approved by
AG VA. Any member found guilty of violating this
Section shall be fined a minimum of $250 and/or be
suspended for a minimum of thirty (30) days or both.
Thus , the artists were threatened with fines, censure,
suspension and expulsion if they violated the directive.
This is clearly coercion within the meaning of Section
8(b)(4)(ii ), and where done for an objective proscribed by
subsections of Section 8(b)(4), it substitutes an unfair
labor practice . It is not made otherwise by the proviso to
Section 8 (b)(IXA) which places a limitation on conduct
defined as an unfair labor practice by that Section.
Subsection (B) to Section 8(b)(4) proscribes coercion of
any person where an object thereof is to force any person
to cease doing business with any other person . I find that
Respondent , by its telegrams to Gaylord and Holiday and
to Sid Caesar , violated Subsection 8(b)(4)(ii )(B) of the
Act.
As Ford was performing struck work , and as Shore
would have performed struck work if she had performed,
and therefore being allies of Harrah's Club , the coercion
contained in Respondent ' s telegrams to them is not
proscribed by a subsection to Section 8(b)(4) of the Act,
and therefore did not violate the Act. Under the
circumstances of the nature of the performances of these
two stars , I find that the fact that the telegrams were
broadly worded and not restricted to struck work is not
significant.
Upon the foregoing findings of fact and conclusions and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Harrah 's Club and Sparks Nugget , Inc., are
employers engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2),
(6) and (7) and 8(b)(4) of the Act.
2. Dinah Shore, Tennessee Ernie Ford, Gaylord and
Holiday , and Sid Caesar are persons and/or employers
engaged in commerce and in operations affecting
commerce within the meaning of Section 2(1), (2), (6) and
(7) and 8(b)(4) of the Act.
3. By threatening , restraining and coercing Gaylord and
Holiday and Sid Caesar with fines, censure , suspension or
expulsion for an object of forcing or requiring them to
cease doing business with Harrah 's Club and Sparks
Nugget respectively , Respondent has engaged in unfair
labor practices in violation of Section 8(b)(4)(ii)(B) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices
by its telegrams to Tennessee Ernie Ford and Dinah
Shore.
AMERICAN GUILD OF VARIETY ARTISTS 585
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8 (b)(4)(ii)(B) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to
effectuate the policies of the Act.
On the basis of the foregoing findings of fact and
conclusions of law and the entire record herein, I
recommend that , pursuant to Section 10(c) of the Act, the
Board issue the following:
ORDER
American Guild of Variety Artists , AFL-CIO, its
officers, agents , representatives , successors , and assigns,
shall:
1. Cease and desist from threatening , coercing, or
,,restraining Gaylord and Holiday , Sid Caesar , or any other
person engaged in commerce or in an industry affecting
commerce , for an object of forcing or requiring said
person to cease doing business with Harrah 's Club or
Sparks Nugget.
2. Take the following affirmative action designed to
effectuate the' policies of the Act:
(a) Post at its headquarters and in each of its offices,
including all places where notices to members are
customarily posted , copies of the notice attached hereto
marked "Appendix."" Copies of said notice, to be
furnished by the Regional Director for Region 20 of the
National Labor Relations Board , after being duly signed
by an authorized representative of Respondent , shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent therein to
insure that said notices are. not altered, defaced or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director, Region 20, for the information of
Harrah's Club, Sparks Nugget, Sid Caesar and Gaylord
and Holiday and for posting by said employers or persons,
if willing, at locations on their premises where notices to
employees are posted.
(c) Notify the Regional Director for Region 20, in
writing , within 20 days from the date of receipt of a copy
of this decision , what steps Respondent has taken to
comply herewith.'
IT IS RECOMMENDED that the complaint be dismissed
insofar as it alleges unfair labor practices by Respondent
by telegrams to Dinah Shore and Tennessee Ernie Ford.
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce or restrain Gaylord
and Holiday, Sid Caesar, or any other person engaged
in interstate commerce, with fines, censure, suspension
or expulsion for an object of forcing or requiring said
person to cease doing business with Harrah's Club
and/or Sparks Nugget.
AMERICAN GUILD OF
VARIETY ARTISTS,
AFL-CIO
(Labor Organization)
Dated By
• 1 n the event that this Recommended Order is , adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 20, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith.
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 13050 Federal
Building , 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.