Associated Musicians, Local #16Download PDFNational Labor Relations Board - Board DecisionsOct 25, 1973206 N.L.R.B. 581 (N.L.R.B. 1973) Copy Citation ASSOCIATED MUSICIANS, LOCAL # 16 581 Associated Musicians of Greater Newark, Local # 16, American Federation of Musicians, AFL-CIO and Bow and Arrow Manor, Inc., t/a The Manor, Inc. and National Association of Orchestra Leaders. Cases 22-CC-447, 22-CC-48l,'22-CC-482, and 22-CC-448 that the Union engaged in a violation of Sections 8(b)(4)(i)(ii)(A) by seeking to obtain the Form B agreement with a clause of the character which the Board found unlawful in the Patton Ware- house case . [140 NLRB 1474, enfd . as modified 334 F .2d 539 (C.A.D.C., 1964).] October 25, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On March 29, 1973, Administrative Law Judge Sid- ney J. Barban issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief; Bow and Arrow Manor filed exceptions, and Respondent filed cross- exceptions, a brief in support of its cross-exceptions, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge insofar as consistent herewith. We agree with the Administrative Law Judge's con- clusion that Respondent violated Section 8(b)(4)(A) of the Act.' He concluded that: In this case, the Union induced and encour- aged members of the Herman and Bruce orches- tra[s] to cease work for their employers, Herman and Bruce, at the Manor, unless the Manor exe- cuted the Union Form B agreement covering their working conditions, and further threatened, restrained, and coerced Herman and Bruce, as employers and independent contractors, to cease doing business with the Manor unless the Manor executed the Form B agreement, by inducing and encouraging their employees to strike, and by threatening Herman and Bruce with penalties under the Union's and the Federations f sic] Constitution, By-laws, orders and regulations. It would thus appear that General Counsel has made out his case in support of the allegation i In his Conclusion of Law 3, the Administrative Law Judge inadvertently concluded that Respondent violated Sec. 8(b)(4)(B) by seeking to obtain the execution of a contract containing a clause violative of Sec 8 (e).-He clearly meant to find that Sec. 8(b)(4)(A) was the section violated. The error is hereby corrected However , we disagree with the Administrative Law Judge insofar as he failed to find that, by the same conduct, Respondent also violated Section 8(b)(4)(B) of the Act . It seems clear to us from the conclusions quoted above that Respondent put pressure on em- ployees of Herman and Bruce, and also on Herman and Bruce themselves as employers and independent contractors , with an object of causing them to cease doing business with the Employer , herein The Manor. This is a clear violation of Section 8(b)(4)(B). The Administrative Law Judge adverted to this ob- vious conclusion, noting that it is "literally true" that Respondent's conduct had a "cease-doing-business" object. But he found that he was nonetheless obliged to dismiss the 8 (b)(4)(B) allegation on the basis of the Board's decisions in certain recent cases . We do not agree that the cases cited require that result. In one of these cases, American Guild of Variety Artists, AFL-CIO (Harrah 's Club, et al.), 176 NLRB 580, the Musicians union was engaged in a legitimate strike against various casinos employing house musi- cians . In the course of the Musicians strike , the Amer- ican Guild of Variety Artists, the Respondent (herein AGVA), threatened various performers with discipli- nary action or expulsion if they continued to perform at the struck locations . The Board found that AGVA's activities directed at the performers merely assisted the Musicians otherwise legitimate primary strike against the casinos and hence were not violative of Section 8(b)(4)(B). As the General Counsel points out, the Board's decision in that case was reversed by the Court of Appeals for the Ninth Circuit (Harrah's Club, 446 F.2d 471 (C.A. 9,197 1) cert. denied 404 U.S. 912 (1971)), and a violation ultimately found? The other case cited by the Administrative Law Judge was American Federation of Musicians of the United States and Canada and Wichita Falls Musicians Association Local No. 688, AIM, 186 NLRB 646. There the Board simply adopted without discussion the Trial Examiner's Decision which found that the union's efforts to have various bands cease perform- ing for an Air Force officers ' club were permissible primary activity. The only precedent cited by the Trial 2 See 195 NLRB 416. See alsoAmerican Federation of Musicians , AFL-CIO (Harrah's Club), 178 NLRB 707 , reversed 446 F 2d 471 (C.A. 9, 1971) cert. denied 404 U _S. 912 (1971), supplemental decision 195 NLRB 1104 In its brief to the Board, the General Counsel suggested that the Board might wish to reconsider its decision in the Harrah 's Club ,cases. Subsequently, it filed a motion to delete this portion of its brief . The motion is hereby granted. 206 NLRB No. 53 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner for his disposition of the case was the Board's decision in Harrah's Club, supra, a crucial feature of which was, as noted above, that the respondent's actions were in aid of the Musicians pri- mary strike against the employer of the house band members. The disposition in Local No. 688, AFM, therefore, apparently rested on the implicit finding that the Air Force was also the employer of the band members in question, a fact Chairman Miller advert- ed to in a footnote? Since all employees there seemed to be those of the primary employer, there was no "cease-doing-business" object between employers, and hence no allegations of secondary conduct could be sustained. The present case involves a completely different situation. The Manor employs no musicians whom Respondent could represent and Respondent has not sought to persuade its members to aid another union at the same situs by honoring that union's picket line, since there was no picket line. Respondent's appeals to independent contractors Herman and Bruce and to their employees were intended solely to cause Her- man and Bruce to cease doing business with The Manor. Contrary to the Administrative Law Judge's apparent finding that the Union's activity was in aid of its primary dispute with The Manor, as The Manor was not the employer of the musicians whose employ- ment conditions Respondent sought to affect, we find that it had no primary dispute with The Manor. We therefore find that Respondent's actions violated Sec- tion 8(b)(4)(i)(ii)(B) of the Act. The Union's presettlement conduct appears simply to have been the trial run for its unlawful postsettle- ment conduct. The Union requested The Manor to bargain with it with respect to the "musicians who render services at your establishment." The Manor refused because the musicians were not its employees, and the Union then notified Herman, Ames, and Bruce to cease performing for The Manor until fur- ther notice. While the Union relented before any ces- sation of business occurred, after the execution of the settlement agreement it continued seeking the same objective-a bargaining agreement with The Man- or-through attempting to force The Manor to sign its Form B contract. That contract by its terms sought to create a joint employer relationship between The Manor and the band leaders and thus lay the basis for a bargaining relationship between the Union and The Manor with respect to the musicians whom The Man- or did not then employ. Since the Union sought to accomplish this objective by having Herman, Ames, and Bruce cease performing at The Manor, either as 3 Local No 688, AFM, supra, fn. 3 Members Kennedy and Penello agree with the view expressed by Chairman Miller in that case its house bands or for any other purchaser of music, its presettlement conduct also violated Section 8(b)(4)(ii)(B) of the Act.4 and, as Respondent persist- ed in such conduct, we shall order that the settlement agreements in Cases 22-CC-447 and 22-CC-448 be set aside. Having found that the Union violated Section 8(b)(4)(i)(ii)(A) and (B) of the Act, we shall order it to cease and desist therefrom and to take appropriate remedial action to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Asso- ciated Musicians of Greater Newark, Local #16, American Federation of Musicians, AFL-CIO, New- ark, New Jersey, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Inducing or encouraging individuals employed by Herman, Bruce, The Manor, or any other employ- er engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform any services; or threatening, coercing, or restraining Herman, Bruce, The Manor, or any other employer or person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Herman, Bruce, The Manor, or any other employer or person to enter into, maintain, enforce, or give effect to provi- sions of an agreement prohibited by Section 8(e) of the Act. (b) Entering into, maintaining, enforcing, or giving effect to the provisions in its Form B2B agreement set forth and italicized in the attached Administrative Law Judge's Decision, to the extent found unlawful herein. (c) Inducing or encouraging individuals employed by Herman, Bruce, or any other employer engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform any services; or threatening, coercing, or restraining Herman, Bruce, or any other employer or person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require Herman, Bruce, or any other person or employer to cease doing business 4 Respondent contends that, because no cessation of business occurred as a result of its presettlement conduct, any violation of the Act stemming from its conduct would be of the purely technical kind which, in American Federa- tion of Musicians, Local 76, AFL-CIO, 202 NLRB 620, the Board indicated it would decline to remedy We disagree . Since Respondent persisted in its unlawful conduct after execution of the settlement agreement , it was there- fore not purely technical in nature. ASSOCIATED MUSICIANS, LOCAL # 16 583 with The Manor. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 22, after being duly signed by Respon- dent Union's representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the settlement agree- ments in Cases 22-CC-447 and 22-CC-448 be, and they hereby are, set aside. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government from doing business with any other person. WE WILL NOT induce or encourage individuals employed by Barry Herman Orchestra and En- tertainment, Inc., Charles Bruce, or any other employer engaged in commerce or in an industry affecting commerce to engage in a strike or refus- al in the course of their employment to'perform any services, nor will we threaten, restrain, or coerce, the two above-named employers or any other employer or person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require them to cease doing business with The Manor. ASSOCIATED MUSICIANS OF GREATER NEWARK, LOCAL # 16, AMERICAN FEDERA- TION OF MUSICIANS, AFL- CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark,'New Jersey 07102, Telephone 201-645-2100. WE WILL NOT induce or encourage members to strike, or refuse to perform services in the course of their employment, and WE WILL NOT threaten, restrain, or coerce em- ployers or other persons whose operations are subject to the National Labor Relations Act, in- cluding Barry Herman Orchestra and Entertain- ment, Inc., Charles Bruce, and Bow and Arrow Manor, Inc. t/a The Manor, where an object of the Union is to force'or require such persons to enter into an agreement by which any employer agrees to cease or refrain from doing business with any other person. WE WILL NOT enter into, maintain, give effect to, or enforce any contract or agreement, express or implied, whereby any employer whose opera- tions are subject to the National Labor Relations Act ceases or refrains or agrees to cease or refrain DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Newark, New Jersey, on December 6 and 7, 1972, upon a consolidated complaint issued on October 31, 1972. The charges upon which the complaint was based were filed in Cases 22-CC-447 and 448 on September 10 and 14, 1971, and in Cases 22-CC-481 and 482 on June 16 and September 25, 1972. The complaint alleges that the above-named Respondent (herein referred as the Union) engaged in certain acts and conduct in violation of Section 8(b)(4)(i), (ii)(A), and/or (B) of the Act as follows: 1. On certain dates in September 1971, engaged in, and induced and encouraged individuals employed by Marty Ames Music and Entertainment, Inc. (herein referred to as Ames), Barry Herman Orchestras and Entertainment, Inc. (herein referred to as Herman), and Charles Bruce (herein referred to as Bruce), and other persons to engage in, a strike or refusal to perform services for their employers. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In September 1971, threatened, restrained, and coerced Ames, Herman, and Bruce, and other persons by the above conduct and by threatening to enforce- the Union's bylaws against Ames, Herman, Bruce, and other persons-all of the above with an object of forcing and requiring Ames, Herman , Bruce, and other persons to cease doing business with Bow and Arrow Manor, Inc., t/a The Manor (hereinafter referred to as the Manor). 3. About April 4, 1972, demanded that the Manor sign a contract with a clause allegedly violative of Section 8(e) of the Act. 4. Since on or about June 7, 1972, engaged in, and in- duced and encouraged individuals employed by Herman, Bruce, and other persons to engage in, a strike or refusal to perform services for their employers. 5. Since on or about June 2, 1972, threatened, restrained, and coerced Herman, Bruce, and other persons by the con- duct described in paragraph 4, above, and by threatening to enforce Respondent's bylaws against Herman, Bruce, and other persons-all of the above in paragraphs number 3, 4,' and 5, with an object of forcing and requiring Herman, Bruce, and the Manor to , enter into a contract containing a clause allegedly prohibited by Section 8(e) of the Act, and to force Herman, Bruce, and other persons to cease doing business with the Manor. Respondent's answer denies the alleged unfair labor prac- tices. The complaint alleges, and the answer admits, that on or about October 1 and 4, 1971, the Union, the Manor, and National Association of Orchestra Leaders entered into an informal settlement in Cases 22-CC-447 and 448, with re- spect to the acts and conduct of the Union referred to in paragraphs numbered 1 and 2, above, which was approved by the Regional Director of the Board, and that on or about October 31, 1972, the Regional Director withdrew his ap- proval of and vacated and set aside the settlement agree- ment because of the acts and conduct referred to in paragraphs numbered 3, 4, and 5, above. The complaint alleges, and the answer admits , that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, from observation of the witnesses , and after due consideration of the briefs filed by the General Counsel, the Charging Parties, and the Re- spondent, I make the following: FINDINGS AND CONCLUSIONS 1. THE OPERATIONS OF THE MANOR various rooms in which catered affairs may be held, such as weddings, bar mitzvahs, dances, receptions, and the like. These latter functions are generally serviced by the Manor's banquet staff. During the period With which we are con- cerned, the only music in the restaurant was provided by two "strolling violinists" on two nights each week. There is a question as to whether these musicians were employees of the Manor at times material to this case. During this same time, a small band played in the lounge area, and another band, referred to in the record as the "house band," was available to play at catered affairs at the Manor, if the customer (often referred to as "the father of the bride") was willing to engage that band, or accept it. It is the position of the General Counsel and the Charging Parties that these bands were self-employed, or independent contractors, while the Union contends that these bands, and the strolling violinists, were employees of the Manor. II. THE BANDS INVOLVED During the periods with which we are concerned, except after June 7, 1972 (under circumstances discussed hereinaf- ter), Charlie Bruce provided and led the orchestra which played in the Manor Lodge. Ames, Herman, and possibly other persons provided bands which played at functions at the Manor catered by the banquet department. On these occasions when their bands were performing at the Manor, it would appear that Marty Ames, or Barry Herman as the case might be, would lead his own band. On those occasions when either of them was unable to act as the leader of the band, he would appoint someone else to act as subleader, as is customary in the industry. A. Ames Ames, which apparently is a corporation, is engaged, among other activities, in providing orchestras (up to five in a single day) to clients for functions such as weddings, din- ner dances, bar mitzvahs, shows, and the like. Marty Ames and his musicians are members of the Union. When per- forming for such functions , as at the Manor, Ames enters into a contract with the client giving the function (e.g., the father of the, bride), not with the Manor. Though, as indi- cated, Ames has performed numerous times at the Manor, Ames credibly denied having any contractual arrangements with the Manor. It was stipulated at the hearing that for the purposes of this proceeding Marty Ames is an employer within the meaning of the Act. At times material to this proceeding, the Manor was en- gaged in the business of providing food, beverages , catering, and related services at its premises located at West Orange, New Jersey. During a recent annual period, in which the gross revenue of the Manor was in excess of $500,000, the Manor received goods at its place of business valued in excess of $50,000, which were delivered directly from out- side the State of New Jersey. The Union admits that during times material the Manor has been an employer engaged in commerce within the meaning of the Act. In addition to a restaurant, the Manor provides for its -customers a lounge area in which beverages are sold, and B. Herman Herman, also apparently a corporation, is engaged in providing orchestras , and other services, to clients for the same kinds of functions as Ames. Herman employs up to 70 .musicians (often referred to as sidemen) in about 12 orches- tras at a time. During the past year, Herman employed over 200 such musicians playing engagements in New Jersey, New York, Pennsylvania, and Connecticut, with a gross income to Herman of about $2100,000. Many of these musi- cians are members of the Union. Herman selects its own musicians, maintains them on its own payroll , pays them ASSOCIATED MUSICIANS, LOCAL # 16 deducting for their pay taxes and social security payments, pays unemployment taxes on these musicians, and main- tains workmen's compensation and public liability insur- ance covering the performance of the musicians with its orchestras. Herman has discharged musicians working in its orchestras. Herman owns certain equipment used by its orchestras, supplies special shirts to the musicians, and pur- chases advertising for the orchestras. Herman secures engagements at the Manor, and presum- ably elsewhere, by following up leads, contacting the person who intends to give-a function, selling the prospective client on Herman's music, and entering into an agreement with that client.t Up until last June, Herman used its own person- al form of contract in these instances. Since that time, when the Union began to insist that its members use the Union's form B2B agreement at engagements at the Manor (dis- cussed hereinafter), Herman has also secured the client's signature to that form, which the Umon insists must be filed with it for each engagement played by its members. There is no evidence of and I find that Herman did not have any contract or agreement with the Manor during this period pursuant to which a Herman orchestra played an engage- ment at the Manor. At such engagements, Barry Herman, together with the client, determines the number of musi- cians to be used, the instrumentation, and the type of music to be played at the function, and determines the dynamics and the tempo of the music. In addition to the above, Barry Herman, himself, has (or has had) certain special relationships with the Manor. Since June 1971, Barry Herman has been designated as the "musi- cal director" of the Manor, an amorphous title apparently dignifying his position as the leader of the "house band" at the Manor. He is, in effect, the Manor's channel of commu- nication to the musical world. Thus, when Bruce left the Manor suddenly in September 1972 (as required by the Union under circumstances discussed hereinafter), Barry Herman secured a temporary group to replace Bruce. There is no evidence that Herman receives any remuneration from the Manor for services performed other than those provided at the Manor by the Herman band. In fact, Herman pays the Manor a very substantial amount of rent for a small office maintained there. In September 1971, Herman also persuaded the two strolling violinists who had previously been employed ap- parently by the Manor to join his organization and go on his payroll. According to the undisputed testimony of Barry Herman, which is credited, he had been attempting to se- cure this arrangement for some time, on the basis that he wanted to use these men as part of his operations at other engagements when they were not working at the Manor. He states that at this time he obtained their agreement to the arrangement, had a verbal agreement with the Manor as to their continued performances at the Manor, and put the violinists on the Herman payroll from that time forward until the violinists left the following September, as discussed i It is clear that the Manor banquet department also attempts to sell clients contemplating using the Manor facilities for private functions on the use of the "house band," in this case Herman's orchestra , for which Herman has an arrangement to pay the banquet department a substantial percentage of the gross income Herman derives from operations at the Manor. hereinafter.2 C. Bruce 585 Bruce was in the music business for about 40 years, until he left the Manor in June 1972. Prior to beginning what turned out to be a long engagement at the Manor, Bruce had performed at numerous club dates as a sideman and as a leader. He was recruited to form a group and play at the Manor by a previous manager of the Manor, Healy, about 1963 or 1964. Bruce brought his own musicians with him. For about 4 years the Bruce orchestra played at functions catered by the Manor banquet department. At that point, Bruce, with great reluctance, acceded to the request of the then general manager of the Manor, Boggier, to leave the banquet department and play in the lounge on a steady basis, 6 nights a week. During his stay at the Manor, with the exception of one year, Bruce was paid in cash for the performance of his orchestra, first by the banquet manager and later by the Manor cashier when the orchestra was playing in the lounge. He then himself paid his men at the union scale, securing receipts from the men to show the Internal Reve- nue Service. Bruce's share of the payment from the Manor was considerably larger than that of the sidemen. From Bruce's testimony,3 I find that during this period he paid his own social security taxes and probably that of the side- men. He did neglect withholding and payment of taxes for the sidemen and probably for himself, and therefore got into trouble with the Internal Revenue Service. For 1 year, in 1970-71, Bruce persuaded the Manor to put him and the sidemen on the Manor payroll and take care of the book- keeping for him. Thereafter he put the musicians back on his own payroll, hired an accountant to get himself straight- ened out, and thereafter did not have any further problems with IRS. Bruce testified that when he began at the Manor, the then manager of the Manor, Healy, executed a form B2B agree- ment in order to get Bruce to come to the Manor, but Bruce clearly understood that this was contrary to the policy of the Manor and its owner, and he did not file the agreement with the Union, as union rules required. Bruce stated that he thereafter, and particularly while playing in the lounge, had only an oral understanding with the Manor. Bruce asserted that the musicians were compelled to comply with house rules pertaining to drinking, smoking, dress, and length of hair which were posted in the kitchen of the Manor, a place 2 The Union argues, in effect, that this arrangement was a sham, on the ground that it occurred about the time the Union was seeking recognition from the Manor, as considered hereinafter, and no specific monetary advan- tage is shown to have accrued to Herman or the violinists by the move. However, Barry Herman testified, without contradiction, that this was a move he had for some time desired, which was to the advantage of Herman and the violinists in respect to work opportunities at other places, and that he was not requested to take this action by the Manor. While the timing is very suspicious, I am not inclined to discredit Barry Herman on that basis, and on the record as a whole and my observation of the witness , I credit Ins testimony. As will be noted hereinafter, in June 1972, the Union clearly treated the violinists as part of the Herman organization. 3 Bruce's testimony , particularly in respect to the incidents of his relation- ship to the Manor, tended to be vague , imprecise, and equivocating. I re- ceived the distinct impression of a bias against the Manor or its management, and have considered his testimony accordingly. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the musicians occasionally visited. While I do not believe that the bulletins referred to by Bruce were meant to apply to the musicians as such, it is clear that similar rules of deportment were understood to apply to the musicians in their area of contact with guests of the Manor.4 Bruce fur- ther asserted that, while performing in the lounge, the hours of performance were changed by the management, and that the owner of the Manor on occasion objected to certain types of music which the orchestra played. When the Union adopted a rule forbidding members to work more than 5 days a week on a steady engagement, the management per- suaded Bruce to continue to work 6 days.' Bruce stated that he did not consider himself the boss of his band, but that he and all the men were partners,6 assert- ing that they decided together what music to play, what uniform to wear, and that they got together by mutual con- sent to rehearse when necessary. Such rehearsals, which were in the early part of the band's engagement at the Manor, were held in Bruce's home, not in the Manor. When one of the sidemen was absent, a replacement was selected by Bruce, or by the sideman with Bruce's approval. When Bruce was absent from a performance, he appointed one of the men as subleader. While the sidemen apparently had other employment, Bruce apparently performed nowhere other than at the Manor, at least during the last 4 or 5 years he was there. The Union also produced evidence concerning other bands which performed at the Manor from 1957 to the period with which we are here concerned, and one band which performed at the Manor for 4 days in 1972 (discussed hereinafter). Each leader had a somewhat individual story of his relationship with the Manor. This evidence has been considered. To the extent that it conflicts with the findings or conclusions herein made, I find that evidence either unre- liable or not sufficiently probative with respect to the issues involved, which concern specifically the relationship of Ames, Herman, and Bruce to the Manor. III ALLEGED UNFAIR LABOR PRACTICES A. Presettlement Events By letter addressed to the Manor, dated July 13, 1971, the Union claimed to be "the collective bargaining agent for the musicians who render services to and in your estab- lishment," and requested a meeting for negotiation of a bargaining agreement. Respondent answered, rejecting the Union's request on the ground that the musicians rendering 4 Other working conditions and benefits, such as insurance, leave, vaca- tions, profit sharing, pensions, and the like which the Manor provides for its employees are not provided for musicians playing at the Manor. Musicians do not, as other employees must, fill out job application forms or punch the Manor tuneclock. 5 On cross-examination Bruce readily agreed that he conformed to the Manor's desires because he was afraid to lose his job. The Union argues that this clearly shows an employee status. However, independent contractors whose major or sole production or service is for a single customer are, of course, in exactly the same position. 6 It appears, however, that when Bruce, in September 1972, was unable to obtain a form B2B contract from the Manor as the Union was insisting Bruce argued that the Union should be satisfied with a contract signed by himself since he was the leader of the band services in the Manor were not the employees of the Manor, but the employees of the orchestra leaders in whose groups they worked, and that the leaders were independent con- tractors. In mid-September 1971, the Union sent a postcard notice to all of its members, some of whom worked for Herman, Ames, and Bruce, advising that the Manor had been "placed on the Local and National Unfair List of the Amer- ican Federation of Musicians," and instructing its members, "Do not perform or accept musical engagements with any- one until further notice at `THE MANOR."' Prior to that time, Peter Stuppiello, the secretary and an agent of the Union, had visited the Manor where he informed Herman that the Manor was going to be placed on the Unions unfair list and that Herman would receive a postcard advising him of this and instructing hun that he could not play at the Manor. When Herman protested that this would leave him open to law suits by clients with whom he had contracts to perform at the Manor, Stuppiello replied that this was the way it had to be, that the Union was "going to get the Manor one way or another." During this same period, Ames, who also had contracts with clients (not the Manor) to play at functions at the Manor was advised by one of his musicians of receipt of the postcard. Ames called Lew Mallet, president and an admit- ted agent of the Union, who confirmed that the Manor was "on the unfair list and you cannot play." When Ames pro- tested that he had contracts with clients to play at the Man- or, Mallet replied that Ames could not play the engagements, the Manor was on an unfair fist, there would be a picket line, and "nobody would be allowed to cross it. If, they did, it was at the expense of a fine and possible explusion." These events apparently formed the basis for the charges in Case 22-CC-447 and 448, which were settled by an agree- ment approved by the Acting Regional Director on October 4, 1971. It would appear from the testimony of Ames that the Union relented and permitted the leaders to play their en- gagements at the Manor during this period. Thus, Ames testified that at the last moment Mallet permitted him to perform, stating that the parties were going to get together, and that the Manor was off the unfair list "for the time being." B. Postsettlement Events On April 4, 1972, the Union by letter informed the Manor that "a contract with the leader who performs in your estab- lishment is required in this office on a form B2B contract" (sometimes referred to as a form B contract), and that "no work [is] to be performed absent of a signed A.F. of M. contract." The Manor replied that it had no musician em- ployees, and rejected the contention that the Union could "dictate" the type of contract the Manor signed with inde- pendent contractors. About the first of June, Stuppiello spoke to Herman at the Manor advising that he shortly would be receiving a letter from the Union informing him that the violinists-he had playing at the Manor would no longer be allowed to play unless the Manor signed a form B contract, and that the ASSOCIATED MUSICIANS, LOCAL # 16 band in the lounge would also be receiving the same mes- sage.7 Herman protested that by this action the Union would be putting six musicians out of work. Stuppiello said that "we have got to show The Manor that they can't get away with anything, and that we are going to get them." Shortly thereafter, Herman and at least one of the violin- ists received a letter from the Union dated June 7, 1972, advising that a form B contract must be submitted to the Union for all musicians employed by Herman "on a weekly steady basis at the Manor," that if the Manor refused to comply "the services of all AFM members steadily em- ployed at the Manor will be discontinued," and instructing that "[f]ailure to comply will subject all violators to pre- scribed penalties as outlined in the AFM Constitution and By-laws." Herman was unable to get the Manor to agree to sign the form agreement required by the Union, and the violinists ceased working at the Manor. The Union's brief asserts that the violinists were "called out on strike." (Br., p. 4) By letter dated June 7, 1971, the Union also informed Bruce (whose orchestra was then playing in the Manor lounge) that he would have to submit to the Union a form B agreement for the musicians employed by him on a steady basis at the Manor, or that their services at the Manor would be "discontinued," under threat of the penalties outlined in the AFM constitution and bylaws. When he could not get the Manor to sign the form agreement, Bruce sought to obtain a reprieve from Stuppiello, and later from Mallet, but was unsuccessful. He and his orchestra thereupon ceased working at the Manor. The Union claims they likewise were "called out on strike." When Bruce ceased performing at the Manor lounge, Herman contacted another musician, Fred Thaler, and re- quested him to hire two sidemen to form a group to play in the lounge for 4 days. Herman told Thaler of the union problem, and suggested that in order to avoid the necessity of filing a form B contract, in the unlikely situation that the point came up, Thaler should deny union membership. Thaler reported to Boggier at the Manor and was informed that the lounge had an "intimate type atmosphere" and that the band should not play too loud. The orchestra was paid in cash. Though Respondent's brief suggests that on this occasion each musician was paid separately, the record does not support this, and I infer that the Manor followed its normal practice of paying the leader for the orchestra. It does not appear how the Union was informed of this en- gagement, but thereafter Thaler and the two sidemen who worked with him on this occasion were each fined $450 by the Union for working at the Manor without filing a form B agreement, and denying union membership. C. The Form B2B Contract The B2B contract is contained on a printed form bearing at its head the words "American Federation of Musicians of the United States and Canada" (herein called Federa- tion) with the seal of the Federation on the left . Under this appears the words "CONTRACT BLANK," under which 7 This action was taken pursuant to formal decision of the Union's board of directors , according to the official journal of the Union for July 1972. appear the words "Local Number ." 587 The agreement purports to be between "the undersigned Purchaser of Music [herein called Employer] and mu- sicians," stated to include the leader. However, though there is space on the back of the document for the names of the musicians (including the leader) who will perform, the con- tract is intended to be signed only by the leader (and possi- bly' a booking agent) and the so-termed "purchaser of music" (herein sometimes referred to as the purchaser).' In addition to blank spaces to be completed showing the place of the engagement, the name of the band, the dates, times and type of the engagement, and the wages and terms agreed upon (including expenses to be reimbursed), the con- tract contains the following printed provisions: The musicians are engaged severally on the terms and conditions on face hereof. The leader represents that the musicians already designated have agreed to be bound by said terms and conditions. Each musician yet to be chosen, upon acceptance, shall be bound by said terms and conditions. Each musician may enforce this agreement. The musicians severally agree to render services under the undersigned leader. Upon request by the Federation of the local in whose jurisdiction the musicians shall perform hereunder Em- ployer either shall make advance payment hereunder or post appropriate bond. If the engagement is subject to contribution to the A.F. M. & E.P.W. Pension Welfare Fund, the leader will collect same from the Employer and pay it to the Fund; and the Employer and leader agree to be bound by the trust indenture.... The Employer shall at all times have complete supervi- sion, direction and control over the services of musi- cians on this engagement and expressly reserves the right to control the manner, means and details of the performance of services by the musicians including the leader as well as the ends to be accomplished. If any musicians have not been chosen upon the signing of this contract, the leader shall, as agent for the Employ- er and under his instructions, hire such persons and any replacements as are required. In accordance with the Constitution , By-laws, Rules and Regulations of the Federation , the parties will sub- mit every claim, dispute , controversy or difference in- volving the musical services arising out of or connected with this contract and the engagement covered thereby for determination by the International Executive Board of the Federation or a similar board of an appro- priate local thereof and such determination shall be conclusive , final and binding upon the parties. The leader, shall, as agent of the Employer, enforce An addendum to this statement asserts * "This contract does not conclu- sively determine the person liable to report and pay employment taxes and similar employer levies under rulings of the U. S. Internal Service and of some state agencies." 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disciplinary measures for just cause, and carry out in- structions as to selections and manner of performance ... On behalf of the Employer the leader will distrib- ute the amount received from the Employer to the mu- sicians including himself . . . and take and turn over therefor receipts from each musician, including himself Federation are not permitted to use any form of agreement for engagements other than that issued by the Federation, subject to possible fines. (Art. 13, sec. 33.) D. Analysis and Conclusions 1. Status of the musicians All employees covered by this agreement must be members in good standing of the Federation [provided that if the engagement is subject,to the Act, members employed must maintain their membership, and others employed must join the Federation after 30 days, fur- ther provided that these provisions are permitted by applicable law.] To the extent permitted by applicable law, nothing in this contract shall ever be construed so as to interfere with any duty owing by any musician performing here- under to the Federation pursuant to its Constitution, By-laws, Rules, Regulations and Orders. Any musicians on this engagement are free to cease ser- vice hereunder by reason of any strike, ban, unfair list order or requirement of the Federation or of any Federa- tion local approved by the Federation or by reason of any other labor dispute approved by the Federation and shall be free to accept and engage in other employment of the same or similar character or otherwise, without any re- straint, hindrance, penalty, obligation or liability whatev- er, any other provisions of this contract to the contrary notwithstanding. [Emphasis supplied.] Representatives of the Federation local in whose juris- diction the musicians shall perform hereunder shall have access to the place of performance (except to private residences) for the purpose of conferring with the musicians. No performance on the engagement shall be recorded, reproduced or transmitted . . . in the absence of a specific written agreement with the Federation .. . The Employer represents that there does not exist against him, in favor of any member of the Federation, any claim of any kind arising out of musical services rendered for such Employer. No musician will be re- quired . . . to render any services for said Employer so long as any such claim is unsatisfied or unpaid, in whole or in part... . To the extent permitted by applicable law, all of the Constitution, By-laws, Rules and Regulations of the Federation and of any local thereof applicable to this engagement (not in conflict with those of the Federa- tion) will be adhered to... , Many of these provisions, and particularly the paragraph emphasized above, are derived, from the bylaws of the Fed- eration (see, e.g., art. 16, secs: 23 and 24). Members of the As previously noted, Respondent admits that Ames is an employer of the musicians in his orchestra. Similarly, the Respondent does "not contend that the Manor was the employer of those musicians performing at the catered af- fairs under Herman's leadership" (Br., p. 5, fn. 2), but, in effect, argues that the strolling violinists continued to be employees of the Manor, even after they were transferred, by agreement, to the payroll of Herman. Employment is a contractual relationship. It rests on agreement . There is no question but that the violinists, with their consent, and by agreement between Herman and the Manor were terminated by the Manor and employed by Herman. Though attacked by the Union as a shadow trans- action since the violinists continued to perform at the Man- or thereafter, in fact this change had substantial legal consequences. The Manor thus exercised its right to insist that it would no longer undertake the obligations of main- taining these men as its employees on its payroll, withhold- ing their taxes, paying social security, unemployment compensation, and other taxes and insurance upon them as employees, and paying them the substantial benefits which it gave to its own employees. By reason of the change, on their part the violinists lost rights to benefits granted Manor employees. Though it appears that the violinists consented to the change, even in the absence of such consent, the Manor could have legally insisted that it would not thereaf- ter use their services except as employees of Herman. In the absence of any evidence that Herman did not thereafter effectively control the activities of the violinists at the Man- or, as well as their performances elsewhere as employees of Herman, or that the Manor thereafter exercised (or retained the right to exercise) joint control over the incidents of the employee status of these men while they were performing at the Manor, it is found that after the violinists transferred to the employment of Herman the Manor was no longer their employer. The Bruce orchestra presents a more difficult problem because of its long involvement with the Manor, and the fact that it performed services for no other persons. Howev- er, as has been noted, the fact that such services are per- formed for one client exclusively is not necessarily inconsistent with a status of independent contractor, or sep- arate employer. It is noted that in considering similar situations, the Board has placed great stress on the nature of the agreement between the purchaser of music and the purveyor of the music, especially noting whether the purchaser had therein specifically agreed to accept the purveyor as an employee or specifically reserved to itself such control over the purve- yor. See, e.g., Reno Musicians Protective Union Local 368, AFM, AFL-CIO (Foster S. Edwards, et al.), 170 NLRB 271; cf. Edward Small Productions, Inc., 127 NLRB 283, and cases cited therein (where the Board found employee status ASSOCIATED MUSICIANS, LOCAL # 16 589 on the basis of such a specific agreement) with The Alamo Company, 129 NLRB 1093 (where in a similar situation the Board found no employee status, distinguishing its prior decisions in Edward Small Productions on the ground that no such agreement existed there). In the present case, it is clear that at times material to this case, the Manor (with the exception of 1 year) adamantly refused to accept any of the orchestras, including Bruce, as employees, did not require the musicians to fill out job application forms or punch a timeclock as required of all other employees, and did not provide the musicians with the job benefits given other em- ployees. Bruce selected and hired his own employees. When re- placements were required, they were selected by Bruce or by the musician involved with Bruce's approval. Except for the 1 year when Bruce persuaded the Manor to take over the payroll chores, Bruce paid his own men out of the lump sum paid to him by the Manor. Significantly, when the Manor refused to continue this arrangement, Bruce then employed his own accountant to get his payroll procedures straight- ened out so that he would have no further problems with IRS. It is inferred that he thereafter paid the proper taxes and other charges on the musicians required by law of an employer. It is noted that, when the management had com- plaints about the band, it went to Bruce directly, not to the individual members of the band separately. The record shows that in the past, when management had complaints about the individual appearance of members of the band, it also did not go to the men involved directly, but to the orchestra leader. When the Union advised all union mem- bers in the Bruce orchestra that they could not perform without the Union-approved contract, it was the orchestra leader, Bruce, that the Union expected to exercise this res- ponsibility, not the individual musicians.9 Respondent places considerable stress on the fact that the Manor insisted that certain kinds of music not be played in the lounge, that the musicians maintain the appearance re- quired by the management, and that certain behavior con- sidered offensive to the guests of the Manor (smoking or drinking on the bandstand) be avoided, and reserved the right to set and change the hours of performance. Respon- dent claims that this shows that the Manor retained such control over the manner of the services, as opposed to the end product, as to make the musicians employees of the Manor, whether the Manor desired that relationship or not. In the context of this case, I do not find these matters persuasive. By way of illustration: When one engages a contractor to build a house, the contractor does not become any less independent because the purchaser determines the kind of house, where it is to be placed, the kind of materials to be used, the times of construction, or even the times of the day when building shall take place (e.g., to avoid inter- ference with other persons or activities). In the present mat- 9 The Federation bylaws contain in excess of 20 sections establishing the special position and responsibility of leaders, such as to "employ" or "en- gage" musicians (e.g., art. 12, sec 5; art. 13, sec. 31), to pay the musicians in their bands (e.g., art. 12, sec. 33; art. 13, sec. 29); to obtain authorizations from musicians in his band to deduct from the musician's, pay monies owed a Federation local (art. 2, sec 10(A)), to employ only members in good standing with the Federation (art. 16, sec 3), and generally to see that the requirements of the Federation's constitution and bylaws are complied with. ter, the service contracted for was not merely music, but music that would be pleasing to the customers of the Manor and attractively presented in the circumstances. I am per- suaded that the conditions placed on Bruce, in the circum- stances of this case, were properly relevant to the ends for which'he was engaged, and that the Manor did not reserve the right to, nor did it exercise, control over the means employed by Bruce to furnish the end product for which he was engaged.10 For the reasons stated, and on the record as a whole, it is found that during the times material to this proceeding Ames, Herman, and Bruce were independent contractors and employers of the musicians performing in their orches- tras at the Manor, and that, since September 1971 until they ceased performing at the Manor, the strolling musicians were employees of Herman, and not employees of the Man- or. 2. The alleged violations of the Act a. The Union's postsettlement conduct General Counsel alleges that since October 4, 1971, the effective date of the settlement of the prior charges against the Union, the Union has engaged in unfair labor practices in violation of the Act and the settlement agreement. Those allegations will be considered first. (1) The alleged violation based on Section 8(e) Section 8(e) of the Act provides in pertinent part that "It shall be an unfair labor practice for any labor organization and any employer to enter into any contract . . . express or implied, whereby such employer ... agrees ... to cease doing business with any other person.... " Further, Section 8(b)(4)(A) of the Act provides, in sub- stance, that it shall be an unfair labor practice for a labor organization or its agents (i) to engage in a strike, or induce or encourage any individual employed by a person who is covered by the Act to engage in a strike, or (ii) to threaten, coerce, or restrain any person covered by the Act, where an object of the Union's action is "forcing or requiring any employer or self-employed person . . . to enter into any agreement which is prohibited by Section 8(e)." In Truck Drivers Union Local No. 413, IBT, et al. (The Patton Warehouse, Inc.), 140 NLRB 1474, enfd. as modified 334 F.2d 539 (C.A.D.C., 1964), the Board considered a con- tention that Section 8(e) was violated by a contract clause between a labor organization and employers to the effect that employees should not be subject to discipline or dis- charge for refusing to work where there was a labor dispute or for refusing to cross any picket line at any place including that of their own employer (referred to as a picket line clause). The Board there held that in the absence of lan- guage explicitly limiting such picket line clause "(a) to pro- tected activities engaged in by employees against their own 10 Respondent also argues that the fact that the Manor insisted that Bruce perform in the lounge rather than in the banquet department shows the control reserved by the Manor However, this also was not inconsistent with the control that may be exercised over an independent' contractor in the absence of any contractual limitation 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer and (b) to activities against another employer who has been struck by his own employees , where the strike has been ratified or approved by their representative whom the employer is required to recognize under the Act" (140 NLRB at 1481 ), such picket line clause violates Section 8(e), because it has the "effect of denying to an employer his privilege of replacing employees who refuse to carry out their assigned duties ... [thus requiring] the employer to agree to cease or refrain from . . . dealing with the employ- er whose products or services are under the union 's ban." (140 NLRB at 1481-82) In the present case, the allegedly violative clause (set out in full in italics in section III, C, above), provides in sub- stance that the musicians covered by the contract "are free to cease service" thereunder by reason of a ban , strike, unfair list, order, or requirement of the Federation, or of one of its locals approved by the Federation , "without any re- straint, hindrance, penalty, obligation or liability whatev- er." The General Counsel contends , without apparent argument by the Union, that this clause literally falls within the class of language interdicted in the Patton Warehouse case. The Union contends , however, that it never asked the Manor to enter into such agreement with the Union, and that the form B agreement is not designed as a contract between the Union and any employer," and therefore it may not be said that the Union engaged in any activity designed to cause the Manor "to enter into any contract" with the Union within the meaning of Section 8 (e) of the Act. However, it is clear that the form B contract was draft- ed by the Federation on behalf of the Union and its mem- bers and others in like relationship to the Federation , for the purpose of carrying out the bargaining responsibilities of the Federation, the Union , and other locals, to their mem- bers (as the Union 's brief so argues, see , e.g., pp . 13, 14, 17), and that the Federation and the Union require their mem- bers to secure , and perform undert this form of agreement, and no other, and requires that it be filed with the Union under pain of possible disciplinary action . Not only is the clause with which we are here concerned required by the Federation's bylaws to be included in the form B agreement, but that agreement by its terms provides for the participa- tion of the Federation and the Union in the effectuation of its terms, as in the following provisions : (1) The Federation or the Union, at their discretion , may require the purchaser of music under the agreement to pay for the services in advance, or post a bond ; (2) every dispute under the agree- ment must be submitted , in accordance with the constitu- tion, bylaws, and regulations of the Federation, to the executive board of the Federation , or of the Union, whose decisions are "conclusive, final and binding upon the par- ties"; (3) all musicians must be or become members of the Federation ; (4) the construction of the agreement is to be consistent with the obligation of members under the consti- tution, bylaws, regulations , and orders of the Federation; (5) musicians performing under the agreement may cease at the order of the Federation or the Union ; (6) representatives of the Union are afforded access to the premises where the 11 For this reason, in one of his letters to the Union, counsel for the Manor asserted that it was not "a labor contract " agreement is in force : (7) transcriptions of the performance cannot be made without the written consent of the Federa- tion; (8) no performance may be required under the agree- ment until the purchaser has paid any claim owing to any member of the Federation (whether engaged on that partic- ular performance or not); and lastly (9) the parties are com- mitted, to the extent permitted by law , to adhere to "all of the Constitution , By-laws, Rules and Regulations of the Federation," and the Union.12 As the record shows, the Union not only adopted the form B contract , but insisted that the band leaders secure its execution and perform only under that form of contract, presumably because the Union considered that to be in the best interest of the Union and its members , even though the band leaders with whom we are here concerned disagreed, and desired , strongly, to perform without obtaining the exe- cution of that agreement . In the circumstances of this case, it is found that the form B agreement was intended by the Union as a collective-bargaining agreement, providing for the wages , hours, and working conditions of its members, and that in seeking such agreements the leaders here in- volved were acting as agents of the Union , at the direction and under the control of the Union, and in executing such agreements the leaders would be entering into the form B agreement as agent for and on behalf of the Union. In this case, the Union induced and encouraged members of the Herman and Bruce orchestra to cease work for their employers, Herman and Bruce , at the Manor, unless the Manor executed the union form B agreement covering their working conditions , and further threatened, restrained, and coerced Herman and Bruce, as employers and independent contractors , to cease doing business with the Manor unless the Manor executed the form B agreement, by inducing and encouraging their employees to strike , and by threatening Herman and Bruce with penalties under the Union's and the Federation's constitution , bylaws, orders, and regula- tions. It would thus appear that General Counsel has made out his case in support of the allegation that the Union engaged in a violation of Section 8(b)(4)(i) and (ii)(A) by seeking to obtain the form B agreement with a clause of the character which the Board found unlawful in the Patton Warehouse case. The Union argues, however, that to so readily "assign an illegal secondary objective to an unsigned agreement, in the absence of extrinsic evidence as to its intended application and with repeated expressions in the document itself of the intention to conform conduct under it to applicable law is a triumph of cloistered sterility ." (Br., p. 32) However, the very language and intent of Section 8 (b)(4)(A) of the Act is to prohibit coercive activity to obtain a prohibited agree- ment, which obviously would be unsigned at the time the activity occurs. The Board and the court of appeals in the Patton case agreed that the type of clause with which we are here concerned clearly comes within the class of agreements prohibited by Section 8(e) of the Act. Assuming that "ex- trinsic evidence" of the intended application of the clause would be relevant to the issues , the Union offered no such 12 This last provision, among other things, obligates the purchaser to other contract clauses and obligations mandated by the Federation's bylaws, but not expressly set forth in the form B agreement (See, e.g., art 34, secs. 1 and 4) ASSOCIATED MUSICIANS, LOCAL # 16 591 evidence, therefore leaving only the specific language of the clause to be considered; and most importantly, though there are general references to the "applicable law" in relation to other clauses in the form B contract, the specific clause in controversy here is not limited as the Board or the court in Patton indicated was necessary, or in any other way. Under the circumstances presented by the record in this case, and in light of the decisions of the Board, I find that the Union violated Section 8(b)(4)(i) and (ii)(A) of the Act by its activities designed to secure execution of the form B agreement by the Manor. (2) The alleged violation of Section 8(b)(4)(B) Section 8(b)(4)(B) of the Act provides, in substance, that it shall be an unfair labor practice for a labor organization or its agents (i) to engage in a strike, or induce or encourage any individual employed by a person covered by the Act to engage in a strike, or (ii) to threaten, restrain or coerce any person covered by the Act, where an object of the union's action is "forcing or requiring any person ... to cease doing business with any other person.... " The General Counsel asserts that the Union's activities set forth above, which were designed to obtain execution of the form B agreement by the Manor, involved inducement and encouragement of individuals employed by Herman and Bruce to engage in a strike, as well as threats to and coercion and restraint of Bruce and Herman, with an object of forcing or requiring Bruce and Herman to cease doing business with tht Manor (or to continue under substantially altered conditions). This obviously is literally true, Howev- er, the Board, rec'ently' in a series of cases,13 has had occasion to consider s 'A1ar union conduct in similar cir- cumstances and has held it not violative of Section 8(b)(4)(B) of the Act. Thus in the two Harrah's Club cases, where the Federation had a primary dispute with and had established a picket Erie at certain clubs in the Reno area, the Board held that instructions by the Federation and AGVA to union member orchestras and other entertainers, who had contracts to perform at those clubs, not to perform under a threat of union discipline if they did, and even union discipline of those members who disobeyed those instructions, did not violate Section 8(b)(4)(B) of the Act, on the basis that the unions' activity was properly in aid of the Federation's primary dispute with the clubs. The Board held that the unions' "appeals to them [the union members] to honor a picket line [do not] lose their character as permissi- ble primary activity when accompanied by threats of inter- nal disciplinary action by the union of which they are members." See 176 NLRB at 581; 178 NLRB at 710. While this rule may seem to be in conflict with principles estab- lished in earlier cases,14 I am bound to follow the latest 13 American Guild of Variety Artists, AFL-CIO (Harrah's Club), 176 NLRB 580 (herein "the AGVA case"); American Federation of Musicians AFL-CIO, et al (Harrah's Club), 178 NLRB 707 ; American Federation of Musicians of the United States and Canada and Wichita Falls Musicians Association Local 688, AFM (National Assn of Orchestra Leaders), 186 NLRB 646. is Thus in Glaziers Local Union 1184, Brotherhood of Painters, Decorators and Paperhangers ofAmerica, AFL-CIO (Tennessee Glass Company, Inc), 164 NLRB 116 , relied upon by the General Counsel , but distinguished by the Board in the AGVA case , the Board held (in finding a violation of Sec decisions of the Board, which I believe require that I find that the activities of the Union in 1972, in attempting to secure the Manor 's assent to the form B contract , were not in violation of section 8(b)(4)(B ) of the Act. It is, therefore, unnecessary to consider the other arguments presented by the Union . It will therefore be recommended that this alle- gation of the complaint be dismissed. b. The Union's presettlement conduct In the agreement in settlement of the charges in Cases 22-CC-447 and 448, the Union committed itself not to engage in activities in violation of Section 8(b)(4)(B) of the Act. As has been found; the Union's activities since that time, on this record, have not violated that section of the Act, though the Union has violated Section 8(b)(4)(A) of the Act, a violation apparently not within the contemplation of the settlement agreement. In the circumstances of this case, it is found that by its postsettlement conduct, the Union did not violate the settlement agreement. The Board has a gen- eral policy to afford settlement agreements finality except where there has been a breach of the agreement. See Shur- tenda Steaks, Inc., 161 NLRB 957, 968, In. 23. The Board further will not set such settlement agreements aside except where there is substantial cause to take such action. See Medical Manors, Inc., d/b/a Community Convalescent Hospi- tal, 199 NLRB 840. On the basis of the discussion above, and the entire record in this case, I am of the opinion and hold that the settlement agreement should not have been set aside, and it will be recommended that the settlement agree- ment in Cases 22-CC-447 and 448 be reinstated, and that the allegations of the complaint in this matter relating to those cases be dismissed. Cf. Tompkins Motor Lines, Inc., 142 NLRB 1. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Manor, Herman, Bruce, and Ames, at times mate- rial to this proceeding, were employers or persons engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(2), (6), (7), and 8(b)(4) of the Act. 3. By inducing and encouraging employees of Herman and Bruce to engage in a strike or refusal in the course of their employment to perform services, and by threatening, restraining, and coercing Herman, Bruce, and the Manor, in each case with an object of forcing or requiring these persons to enter into an agreement prohibited by Section 8(e) of the act, the Union violated Section 8(b)(4)(i) and 8(b)(4)(B) ). "The wording of the [union] letter . demonstrates that it was aimed specifically at those of its members who were independent contractors with the design and intent of restraining and coercing them through threat of disciplinary action " See also United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1839 (Kroeter Construction Company), 160 NLRB I (threat of disciplinary action for allegedly crossing picket line); Local 171, United Brotherhood of Carpenters and Joiners of America, AFL- CIO (Bans Floor Covering), 167 NLRB 981, and cases cited at 984. It is further noted that the activities of the threatened employees and employers in those cases were even more closely intertwined with the business of the person with whom the union had its primary dispute than in the Harrah's Club cases 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (ii)(B) of the Act. engaged in unfair labor practices in violation of Section 4. Except as herein found , and for the reasons set forth , 8(b)(4)(A) of the Act, it will be recommended that Respon- the Union did not engage in conduct violative of the Act. dent Union cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the THE REMEDY Act. It having been found that the Respondent Union has [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation