Associated Musicians, Local #16

National Labor Relations Board - Board Decisions

Oct 25, 1973

206 N.L.R.B. 581 (N.L.R.B. 1973)

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.]