Associated Musicians of Greater N.Y., Local 802

National Labor Relations Board - Board Decisions

Jun 3, 1969

176 N.L.R.B. 365 (N.L.R.B. 1969)

f
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 365
Associated Musicians of Greater New York, Local
802, AFM, AFL-CIO and Frank Miller and
Lawrence Arthur and Herbert Bass
Joseph Carroll d /b/a Joe Carroll Orchestras and
Frank Miller and Herbert Bass. Cases
2-C B-4489-1 , 2-CB-4494 , 2-CB-4489-2,
2-CB-4489-3 , 2-C B-4495 , 2-CA- 11264, and
2-CA- 11265
June 3, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JI-NKINS, ANDZAGORIA
On May 29, 1968, Trial Examiner Boyd Leedom
issued his Decision in the above-entitled case,
finding that the Respondents had engaged in the
unfair labor practices alleged in the complaint and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Decision.
The General Counsel filed certain exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case. For the following
reasons, we shall dismiss the complaint in its
entirety.
1. JURISDICTION
Joseph P. Carroll is the sole owner of a business
enterprise known as Joe Carroll Orchestras, which is
engaged in furnishing orchestras and musicial
entertainment to various individuals and commercial
clients in and outside of the State of New York.
Undisputed evidence reveals that during calendar
1966, Joe Carroll Orchestras had gross revenues of
$243,064. The record further establishes that over
half of these revenues were nonretail in nature, in
that they were received from Carroll's corporate and
institutional customers, who in turn passed the cost
of Carroll's services on to their customers, and who
were, therefore, not the ultimate consumers of his
services. Finally, it was stipulated that revenue in
the amo unt of $51,635 was received directly from
out-of-State; of this amount, country clubs
purchased $34,405 and private individuals $17,230.
Board precedent makes it clear that Carroll, being
engaged in both retail and nonretail operations, is
subject to the jurisdiction of the Board if he meets
either the retail or the nonretail monetary standard.'
In view of the fact that over $50 ,000 was derived
directly from out-of-State , we shall exercise our
jurisdiction in this case.'
In agreement with the Trial Examiner, we
Respondent Union ' s contention that we should not
exercise jurisdiction because the Employer's
out-of- State nonretail revenues totaled only $34,405.
For purposes of calculating the jurisdictional
amount where an employer engaged in both retail
and nonretail activity does more than a de minimis
amount of nonretail interstate business , we combine
interstate retail as well as interstate nonretail sales.'
11. THE ALLEGED UNFAIR LABOR PRACTICES
The facts, which are essentially undisputed, may
be summarized as follows: Joseph Carroll is a
"society orchestra" leader who provides musical
entertainment for commercial and industrial
organizations, for society functions, at charity balls,
and for college and prep school events. Carroll
negotiates contracts with customers to provide a
specified number of musicians at a given place and
date. Once the number of musicals for a given event
is fixed, the musicians are contacted by telephone by
Edward Cardelli, the "contractor," or hiring agent,
for the Employer. Cardelli is also the "first
conductor" for the employer, which means that he
acts as orchestra leader for engagements at which
Joseph Carroll is not personally present.
For purposes of hiring musicians, the Employer
maintains a list of players who have, in the past,
performed in his orchestras. Some 15 or 20 of the
musicians on the list are on the Employer's "first
string", which means that the Employer will
generally contact them first and exhaust the "first
string" before contacting any "second string"
musicians . Frank Miller, Lawrence Arthur, and
Herbert Bass , the alleged discriminatees, are all
"first string" musicians and have been playing for
the Employer for 20, 5, and 12 years respectively.
Some 8 to 10 months prior to March 6, 1967, the
Employer entered a contract to perform before the
National Association of Purchasing Agents and
Public Utilities' Buyers Club in the Starlight Room
of the Waldorf-Astoria Hotel in New York City. A
12-man orchestra was specified. Miller, Arthur, and
Bass , all members of the Respondent. Union, were
engaged for this event several weeks prior to March
6. On January 10, 1967, Arthur was expelled from
the Union; on February 2, Miller was expelled, and
on March 2, Bass was expelled. All three of these
expulsions were bottomed on violations of article
IV, section l(H)(M) and (U), of the bylaws of Local
802. In pertinent part, these provisions make it a
violation of the bylaws for any member to perform
'Chicago Federation of Musicians . Local 10. American Federation of
Musicians . 153 NLRB 68, 76.
'Ibid.
'Cf. Appliance Supply Company , 127 NLRB 319, 320.
176 NLRB No. 46
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with an organization in which a nonmember plays.
or to perform with a member of his local who is not
in good standing.
On the morning of March 6 , Cardelli received a
telephone call from John Anelli, the pianist engaged
for that evening 's Waldorf-Astoria performance.
Anelli indicated that he would not perform the
Waldorf- Astoria engagement because of the
nonmembership status of Miller, Arthur, and Bass
and the bylaw provision . At Respondent Carroll's
instance , Cardelli called Charles Solinger, chairman
of the trial board of Local 802 , to discuss the
problem . Solinger told Cardelli that the bylaw spoke
for itself and that he , Cardelli, should be guided
accordingly . When Cardelli reported this
conversation to Carroll , Carroll was not satisfied
with the answer and ordered Cardelli to phone
again . During the second call , Carroll listened on a
telephone extension and again Solinger made
substantially the same statement . When Cardelli
insisted on a fuller statement , Solinger put Max
Arons , president of the Local , on the telephone.
According to dndisputed testimony Arons said:
You are familiar with the bylaw. The bylaw
speaks for itself . It is perfectly all right for those
three nonmembers to play, but if they play and
you play with them , the union members , the other
members of the union and you will be brought up
on charges.
Cardelli then told Carroll that he would not play
the March 6 engagement with the nonmembers.
Carroll thereupon instructed Cardelli to find
replacements for Miller , Arthur, and Bass, and sent
telegrams to the latter individuals explaining why he
was replacing them.
The Employer had another engagement scheduled
for March 16, 1967 , also for the Starlight Room of
the Waldorf-Astoria Hotel . According to Cardelli,
when Cardelli reported the list of musicians for that
engagement to Cy Marsden , a union delegate.
Marsden reminded Cardelli that Miller and Bass,
who were to play on March 16, were still on the
expelled list . When Cardelli notified Carroll of this
development, Carroll contacted Marsden, telling
him that he , Carroll, intended to use Miller and
Bass , and requesting Marsden to look into the
matter. After a short time, Marsden phoned Carroll
to say:
I was told by Mr. Arons that it 's all right if those
two men play that engagement, but all the union
the members of the union in good standing in
the union will be brought up on charges following
the engagement.
On completion of this call, Caroll instructed
Cardelli to hire replacements for Miller and Bass.
The record reveals that Carroll had kept Miller
and Bass on his books for the March 16 engagement
because a stay of the expulsion of these musicians
was expected from day to day, and was actually
granted on March 17 . Between March 17 and
approximately July 10, 1967, when the expulsions
were made final. Miller, Arthur, and Bass continued
their employment with Carroll. After July 10,
Miller, Arthur, and Bass played for Carroll only
outside the jurisdiction of Local 802, plus certain
locations within its jurisdiction where a Local 802
delegate does not appear.
Upon duly filed charges and a consolidated
complaint issued by the General Counsel of the
Board , the Trial Examiner found on the above facts
that the Respondent Union had violated Section
8(b)(2) and (I)(A), and the Respondent Employer,
Section 8(a)(3) and (1) of the Act. In its exceptions,
Respondent Union challenges the findings of a
violation of Section 8(b)(2) and 8(b)(1)(A), relying
on Don Glasser v. N.L.R.B.' The Employer excepts
to the Trial Examiner 's finding of a violation of
Section 8(a)(3) and (1) of the Act, apparently
renewing before us the argument made before the
Trial Examiner that "out of deference to the
thus-validated union bylaw (the Employer) should . .
. be allowed to protect his business and his union
member employees . . . by dismissing from his
orchestra the very side men against whom the union
bylaws effectuate discrimination."
The bylaw provisions which were the subject of
conversation between Carroll and Cardelli, on the
one hand , and Solinger , Aron, and Marsden, on the
other, were article IV , section 1 (H) and (U) of the
bylaws of Local 802. They provide that it is a
violation of the bylaws and detrimental to the
welfare of the Local for any member to (1) perform
with an organization conducted by a nonmember, or
in which a nonmember plays; (2) engage or perform
with a member of the Local who is not in good
standing . It is clear that these bylaw provisions,
insofar as they prohibit a member of the union from
playing with a nonmember , are rules prescribed by a
labor organization with respect to the acquisition or
retention of membership; and to that extent are
protected by the proviso of Section 8(b)(l)(A).' The
bylaw in issue in Don Glasser is the identical bylaw
before us here.
Given the validity of the bylaw, the question
which the Union' s alleged violation of Section
8(bx2) of the Act turns is whether its officials
caused or attempted to cause the Employer to
discriminate against his nonunion employees when,
in response to the Employer's direct and insistent
questioning , they stated that the Union would in
fact do what it had an undisputed right to do
enforce its bylaw. In Don Glasser the court
described, we believe properly, the kind of evidence
necessary to establish a violation of Section 8(b)(2):
However , in order for union conduct to violate
Section 8(b)(2), as opposed to Section 8(b)(l)(A),
there must be some direct approach to the
'395 F.2d 401 (C.A. 2), enfg. the Board 's Order in American Federation
of Musicians, 165 NLRB No. 110.
'/bid.
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 367
employer, or some conduct aimed at him , for the
purpose of causing the employer to discriminate
by implementing the union bylaw through his
hiring practices or otherwise . . . undoubtedly,
petitioners as union members have been acutely
aware of the bylaw's existence and of the
rigorousness of enforcement within the
Federation. However, on the present record, the
Board was free to find that Petitioners have not
shown any pattern of action by the Federation
aimed at them as employers. [Emphasis supplied.]
We do not believe that the evidence supports a
finding that the union officials in this case made a
"direct approach" to the Employer to bring the
bylaw to his attention, or that union officials made
any affirmative effort to cause the Employer to
discriminate. When Carroll became aware of the
fact that Anelli would not play in the same
orchestra with Miller, Arthur, and Bass, he initiated
a series of telephone calls to Union officials to
determine if he would be able to meet that evening's
engagement. In response to Carroll' s persistent
telephone questioning, the Union gave responses
which did not add anything to Anelli's statements
and which did not indicate to Carroll that the Union
was in any way concerned with whether Carroll
utilized the services of Miller, Arthur, and Bass. The
Union did no more than repeat what Carroll already
knew, namely, that the bylaw existed, and confirm
what he must have suspected, namely, that no
exception would be made in favor of members who
played with Miller, Arthur, and Bass . We find in
this no direct approach by the Union to the
Employer, no conduct or pattern of action directed
towards causing him to change his hiring policies,
and accordingly. we shall dismiss the Section 8(b)(2)
and (1)(A) charges.
We now reach the question of whether Carroll's
conduct constituted a violation of Section 8(a)(3).
Upon careful evaluation of all the competing
considerations here, we conclude that no such
violation has occurred, and shall dismiss the
charges.
The operative effect of the bylaw on union
members in the locality in which this case arose is
such that they will not knowingly contract to play
an engagement with nonunion musicians . For the
employer this means that once he has engaged one
union musician for any evening, he must hire union
musicians for the remaining positions in the
orchestra if he is to receive the services of the first
musician for which he contracted; conversely, if the
first musician engaged is nonunion , he will find it
impossible to fill out the orchestra with union
musicians. Thus, when Carroll engaged Miller,
Arthur, Bass, and the remaining members of the
orchestra for the March 6 and 16 engagements, both
Carroll and the musicians could reasonably view
their hiring agreement as containing an implied
condition that nothing would occur prior to the time
of performance which would alter the all-union
character of the orchestra. This assumption was in a
sense part and parcel of the consideration prompting
Carroll and the musicians to enter into contracts of
hire for the specified performances. Due to
circumstances unforseen by Carroll, at least, the
orchestra as originally constituted became unable to
perform. The changed situation was not caused by
any action of Carroll; it was caused by events not
only beyond his power and control but which were
within the power and control of the musicians and
their union . These events the expulsion of Miller,
Arthur, and Bass made it impossible for either
Carroll or the musicians to fulfill their contracts
with each other in accordance with the original
understanding. In the law of contracts, the well
established doctrine of impossibility of performance
relieves an obligor of his contractual liability if
unforeseen circumstances render performance
impossible. Although this is not a contract question,
we are- persuaded that the law of labor relations
should provide an employer with some equivalent
measure of flexibility in such extreme and unusual
circumstances as are presented here.' Thus,' because
of the failure of Miller, Arthur, and Bass to retain
good standing in the Union, Carroll was placed in
the position of having to adopt one of two
alternative courses of conduct: he would have to find
replacements either for Miller, Arthur , and Bass, or
for Anelli, Cardelli, and, in all probability, the
remainder of the complement. Carroll chose the
former alternative; there is no showing that the
other course was, as a practical matter, open to
him. We are unwilling to hold on these facts that his
conduct violated the Act. The instant case is
distinguishable from those situations in which the
employer himself was improperly motivated or in
which he acquiesced in an improper course of action
initiated by a collective- bargaining representative or
union hiring hall.' Thus, the Employer's
predicament resulted, independently of any improper
motive or unlawful union pressure, from the
operation of a bylaw provision which both the
Board and the courts have found to be protected by
the proviso of Section 8(b)(IXA).
For these reasons, we shall dismiss the Section
8(a)(l) and (3) charges.
ORDER
It is hereby ordered that the complaint be, and it
hereby is. dismissed.
'Compare N.L.R.B. v. Zoe Chemical Co.. 406 F.2d 399 (C.A. 2).
'E.g., Brunswick Bdke-Colknder Co.. 131 NLRB 156, supplemental
sub nom. Brunswick Corp.. 135 NLRB 574, enfd . 318 F.2d 419 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: These consolidated
cases were tried in New York City on January 10 and 11,
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968. The various charges in the case were all made in
March 1967, and an order consolidating the cases based
on the charges, together with a consolidated complaint,
issued on November 30, 1967. This complaint and the
answers of the Respondents, the Union named above, and
of Joe Carroll, the employer, raise the questions whether
Carroll discharged three musicians , the Charging Parties
Frank Miller, Lawrence Arthur, and Herbert Bass, and
has since refused to reemploy them, because they had
been expelled from membership by the Respondent Union,
and at the time of such discharges were no longer
members thereof, and thereby violated Section 8(a)(3) and
(1) of the National Labor Management Relations Act, as
amended; and whether the Union caused or attempted to
cause Carroll to thus discriminate against these musicians
in violation of Section 8(b)(2) and (IXA) of the said Act.
It is admitted that the three employees were
expelled from membership in the Union for
violation of bylaw provisions and were also
discharged by Carroll.
Joe Carroll, as he stated it, is a "so-called society
orchestra leader." He has been engaged in this
business for many years operating principally in the
area of New York City and within the jurisdiction
of the Union. In this enterprise he engaged
musicians and other entertainers for the purpose of
furnishing music and other entertainment for
individual and corporate clients. Orchestras and
bands constituted by him vary in size . If there are
eight or fewer pieces Carroll himself not only leads
the orchestra but often plays an instrument. If the
musical group organized for a given event is larger
than eight pieces, Carroll usually if not always
directs only and plays no instrument.
The basic problem that has produced this and
similar litigation is whether certain bylaw provisions
of the Local Union, Respondent herein
provisions prohibiting union members from
performing with or under the direction of
nonmembers are used to cause a band or
orchestra leader employer to discriminate against
employed musicians in violation of Section 8(a)(3)
of the Act; and the Union in violation of 8(b)(2).
The trial in this proceeding gave every indication of
a continuing feud between these participants.
I conclude that both Respondents the Union
and the Employer - violated the Act essentially as
alleged in the complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
Jurd isdiction
Respondent Union contends the Board has no
jurisdiction over this proceeding; but in Chicago
Federation of Musicians, Local 10, 153 NLRB 68,
- a case that seems to be on all fours with the
instant case on the jurisdiction issue it was held
that a band and orchestra leader such as Joe
Carroll, is an employer within the meaning of the
Act. I find that Carroll is an "employer" in this
proceeding, for all the reasons stated in the decision
of Trial Examiner Harold X. Summers in the
Chicagocase cited; and on the authority ofthe other
court decisions and Board noted by him in that case.
There is no real contention as to Carroll's status as
an employer.
It follows that the Board's jurisdiction over this
proceeding, under its jurisdictional standards, then
depends on the "commerce figures" of Joe Carroll
in his "single, engagement" and "steady
engagement" activity, on which jurisdiction was
predicated in the cited case. Again on the authority
of the Chicago decision I find and conclude that
Carroll, within the meaning of the Board's
jurisdictional standards, is engaged in both retail
and nonretail activity.
From undisputed evidence I find that Carroll's
gross revenue for the relevant year of 1966 was
$243,064, over half of which accrued through his
"nonretail" operations - nonretail in the sense that
this half of his receipts came from corporation and
institutional customers with Carroll's services
ultimately benefiting the customers of such
corporations and institutions. The balance of his
gross revenues came from individuals such as
"fathers of the bride" or other persons arranging
pure social events, and thus from his retail
operations in that the music was not procured or
used in a business operation, for customers of
Carroll's customers. The evidence also reveals and I
find that more than $50,000 of Carroll's revenue
came directly to him from out of New York for
engagements served by his musical organizations
outside the state.
Inasmuch as an employer engaged in both retail
and nonretail operations comes within the Board's
jurisdiction if he meets the standard applying to
either a retail or nonretail operation, and inasmuch
as revenues of $50,000, received directly from
out-of-state, meets the nonretail standard, the Board
has jurisdiction over Carroll's enterprise. Siemons
Mailing Service, 122 NLRB 81. It is interesting to
note that in Arthur v. Associated Musicians of
Greater New York, Local 802, 67 LRRM 2439 a
case involving the parties in the instant case and
essentially the same dispute, a footnote indicates
that "Joe Carroll Orchestras" comes well within the
Boards's jurisdiction "guidelines."
I reject as lacking in merit the Respondent
Union's argument that the Board should not
exercise jurisdiction over Carroll because all his
revenue for the relevant year, excepting
approximately $30,000, was for social engagements
and not from sales to persons in the business of
providing or selling musical service as part of their
commercial activity. By this argument, as I
understand it, this Respondent seeks to impose a
condition wholly foreign to the Board's jurisdictional
standards. In asserting jurisdiction in previous cases
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802
over a music enterprise such as the one here dealt
with, the Board treats the business essentially as a
service organization. Any holding finding merit in
this Respondent's argument that all revenue should
be excluded from Carroll's commerce figures
because the services were rendered at social
functions, would be in effect to eliminate from the
commerce figures involved in all jurisdiction
determinations, revenue from goods and services
providing entertainment only, but this would be in
conflict with the Board's cases where jurisdiction is
asserted in the entertainment field. Novel though it
may be, this contention is not sufficiently substantial
to undermine the Board's consistent assertion of
jurisdiction over a period of years in several fields
where entertainment is the principal ingredient of
the commerce involved.
Thus I find and conclude that Joe Carroll doing
business as Joe Carroll Orchestras is engaged in
commerce within the meaning of the Act and as
measured by the Board's jurisdiction standards; and
therefore that this proceeding is within the
jurisdiction of the Board.
II. THE UNFAIR LABOR PRACTICES
A. The 8(6X2) Violation
Edward Cardelli, Carroll's "contractor," that is his
hiring agent and supervisor within the meaning of the Act,
as I find and conclude, had employed, in behalf of
Carroll , musicians Frank Miller, Lawrence Arthur and
Herbert Bass to play in one of Carroll' s musical
organizations being organized weeks in advance for an
engagement at the Waldorf Astoria Hotel in New York
City, on March 6, 1967. At the time they were engaged by
Cardelli these three musicians, the Charging Parties
herein, were members of the Union; but subsequently, and
prior to March 6, they were expelled for violating article
IV, sections 1 (H, M and U), of the bylaws of Local 802.
These provisions make it a violation of the bylaws, and
detrimental to the welfare of the Local, for any member
to (1) perform with an organization conducted by a
nonmember or in which a nonmember plays; ( 2) engaging
or assisting in the engaging of any musician who is not a
member of the Local; and (3) engaging or performing with
a member of the Local who is not in good standing.
Just prior to the March 6 engagement , John Anelli, the
piano player engaged for the Waldorf Astoria event,
called Cardelli on the telephone and advised him he had
heard that Miller, Bass , and Arthur were no longer
members of the Union and he, Anelli would not keep the
engagement because of the bylaw provisions. Cardelli
called Charles Solinger, a member of the Union's trial
board, about the problem and was told by Solinger that
"the By-laws speak for themselves." Cardelli reported this
development to Carroll who asked Cardelli to call the
Union again for a fuller statement. During the second call
Carroll listened on a telephone extension and again
Solinger made substantially the same statement , that is
that the bylaws were clear and that Cardelli "should be
guided accordingly." Cardelli asked for a fuller statement
and Solinger got Max Arons, president of the Local, on
the telephone. Arons said according to undisputed
testimony:
369
You are familar with the bylaw. The bylaw speaks for
itself. It is perfectly all right for those three
non-members to play, but if they play and you play
with them, the union members, the other members of
the Union and you will be brought up on charges.
Carroll then, on being advised by Cardelli that he
would not work the March 6 engagement with nonunion
members because of the bylaw provisions and the attitude
of the Union in connection therewith, and Carroll already
having knowledge that Anelli would not keep the
engagement for the same reasons , sent telegrams to Bass,
Miller , and Arthur advising them that they would not be
used for further engagements including that of March 6,
and setting forth as the reason for their termination, the
bylaw provisions and the attitude of the Union, and the
fact that union members would not play with them.
These three musicians did not play the engagement; but
because Carroll believed that the expulsion of the three
was going to be stayed he had kept them on the list of
musicians for a March 16 engagement. Prior to playing
this date, Cardelli reported the list of the musicians to Cy
Marsden, union delegate and was advised by Marsden
that Miller and Bass were still on the expelled list.
Cardelli advised Carroll who then telephoned Marsden
stating that he intended to use these men even though
expelled and that he wished Marsden would check into the
matter. Marsden then called Carroll advising him that
Arons had told him it was all right to use the two men
but that all the union members in good standing would be
"brought up" on charges if they kept the engagement with
the two musicians subject to the dispute.
The Board has held that a union insofar as it maintains
and enforces bylaws which discipline members for working
with nonmembers is not engaging in any unfair labor
practices within the meaning of the Act. American
Federation of Musicans of the United States and Canada,
AFL-CIO, 165 NLRB No. 110. Respondent argues that
"the act of the union official expressing the intention of
invoking such bylaws, in face of an impending violation
thereof, cannot be converted into an illegal act if the
bylaws themselves are legal." While I reject this argument
and find the Union in violation because of the statements
of union representatives hereinbefore set forth, there is a
degree of plausibility in Respondent's contention.
Notwithstanding such plausibility as Respondent's
argument may have, it and the conduct which the
Respondent Union seeks to justify by the argument, seem
to be subject to the same objection and invalidity as that
made by Respondent Employer in his contention that the
Employer "out of deference to the thus-validated union
bylaw should . . . be allowed to protect his business and
his union member-employees . . . by dismissing from his
orchestra the very side men against whom the union
bylaws effectuate discrimination," an argument which I
also reject as hereafter appears.
As to the Respondent Union such bylaw provisions
may be valid, as the Board has held, so long as they relate
to the internal affairs of the Union; but they cannot be
used as weapons against a member in his employment,
through his employer. As to the Respondent Employer, he
seeks to transport over into his relationship with an
employee, a matter foreign to the relationship and valid
only insofar as it relates to the Union's conduct respecting
its own members as members. Even so there is a degree of
plausibility in Respondent Employer's argument for if the
Union may discipline its members for working with
nonmembers it does seem somewhat reasonable, as
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer argues , that he should be able to
protect both his business and his union -member employees
by dismissing from his organizations the nonunion
employees whose continued employment will prove
decidedly disruptive.
The crux of this decision as to the union violation
alleged is whether union officials can call attention to a
valid bylaw , as they did it , in this case , to an offending
member ' s employer . I reach the conclusion that this
cannot be done without violating the Act through a very
literal interpretation of the language of Section 8(b)(2).
Quoting it so that the language may be directly related to
the union conduct , the section in relevant part provides
that it is "an unfair labor practice for a labor organization
or its agents - . . . (2) to cause or attempt to cause an
employer to discriminate against an employee . . . with
respect to whom membership in such organization has
been denied ... " Whatever else may be said about the
conclusion that the union officials violated the Act, it
seems very clear that they caused Carroll to discharge the
three nonmember musicians by the references to the bylaw
provisions and the statement to his contracting employee
Cardelli (relayed to Carroll ) that if he violated the bylaw
provisions , charges would be filed against him.
This union conduct could not reasonably be expected to
produce any other result than the discharges ; for Carroll
was confronted with the assurance that his mainstay
employee Cardelli would not direct the orchestra for the
March 6 engagement , and that the piano player engaged
would not perform ; and the strong likelihood that the rest
of the organization , all union members except for the
three Charging Parties, would not assume the risk of
appearing with the nonunion musicians.
If this interpretation of the statute seems excessively
literal , the choice is deliberate and preferable to running
the risk of error in an opposite holding that would
overlook the realities of the actual result effected by the
union official 's words ; and that would in addition tend to
read into relatively simple language a meaning that is not
there . For the statute grants the Union no immunity from
violation for causing discriminatory discharge of an
employee even though the union conduct producing the
discharge seems somewhat reasonable or logical.
This ruling leaves unanswered the question what union
officials should do or say in the precise situation this case
presents . For the purposes of this Decision , however, it is
enough to say that what was said and done here caused
the Employer to discriminate against his employees; and
that in any such situation as this one , the Union acts and
speaks at its peril with respect to the employer-employee
relationship existing between its offending member and his
employer.
For the reasons set forth above I find and conclude that
the Respondent Union herein violated Section 8(b)(2) and
8(bXIXA) of the Act. In support of his position that the
Union conduct constituted a violation , the General
Counsel relies on these cases among others : Local 1332,
International Longshoremen 's Association , AFL-CIO,
1471; Chief Freight Lines Company , 111 NLRB 22;
International Union of Operating Engineers , Local 478,
162 NLRB 112 ; and Northwestern Montana District
Council of Carpenters Union , 126 NLRB 889. These cases
support in some measure this finding of the 8(bX2)
violation.
B. The 8(a%3) Violation
The evidence clearly reveals, Respondent Carroll
readily admits , and I find and conclude that he discharged
and refused to reemploy the three musicians Bass , Miller,
and Arthur for the reason that they were not members in
good standing of Respondent Union. His conduct,
notwithstanding any and all attendant circumstances,
constitutes a violation of Section 8(a)(3) and ( 1) of the
Act; and I so find and conclude.
As previously indicated I reject, as having no
substantial merit , the argument presented by Respondent
Carroll that in view of the validity of the bylaw provisions
under which the three employees had been expelled from
the Union and under which the Union made it clear they
would proceed against its other members if they violated
the provisions , he, Carroll , should be entitled under the
law to take the reasonable action of dismissing the
employees who were not members of the Union , thereby
relieving himself from the difficult dilemma in which their
continued employment thrust upon him. The law makes
no provision for any such legal self-help by an employer
at the expense of his employees . The bylaw provisions in
question have been held valid only as intraunion
regulations between the Union and its members. They are
wholly unrelated , as hereinbefore stated, to the
relationship of the offending union member and his
employer. They have not been held valid as lawful
grounds for discharge from employment.
For the above reasons I find and conclude that
Respondent Joe Carroll violated Section 8(a)(3) and (1) of
the Act.
III. THE REMEDY
Having found that both Respondents , the Union and
the Employer, have engaged in unfair labor practices, I
shall recommend that each cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Inasmuch as I have found that the Respondent Union
caused Joe Carroll to discharge unlawfully and to refuse
to rehire, his employees Herbert Bass , Frank Miller, and
Lawrence Arthur, I shall recommend that such
Respondent notify Joe Carroll, in writing , and furnish a
copy to each of the employees named in this paragraph,
that it has withdrawn its objections to the employment of
these three and accedes to their reinstatement by Joe
Carroll . The Respondent Union shall make each of the
named employees , discriminatorily discharged , whole for
any loss of pay suffered because of the discrimination
against them , by pay nent to them of a sum of money
equal to that each would have normally earned from
March 6, 1967, when the discrimination against them
resulted in their loss of work, until issuance of the
above-mentioned notification , less net earnings of each
employee during said interval . Backpay shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest at a rate of 6 percent
per annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
Having found that Respondent Union restrained and
coerced Herbert Bass , Frank Miller and Lawrence Arthur
in the enjoyment of their Section 7 rights under the Act in
violation of Section 8(b)(l)(A) by causing their discharge,
and because of the serious nature and consequences of
such violation , destroying as they did fundamental rights
ASSOCIATED MUSICIANS OF GREATER 371
guaranteed by said Section 7, persuasively implying from
the evidence in this case the likelihood of other violations
of such rights , I shall recommend a broad order against
the Respondent Union proscribing not'only the violations
committed and like violations , but also any other
interference with such rights , except to the extent they
may be affected by an agreement made in accordance with
Section 8 (a)(3) of the Act , as amended , requiring
membership in a labor organization as a condition of
employment in the lawful manner.
As to the violation of the Act by the Respondent Joe
Carroll and the underlying purpose and pendency of his
unlawful conduct in discharging his employees Bass,
Miller and Arthur as hereinbefore determined , and the
destructive character of such action as to the said
employee Section 7 rights; and in order to make effective
the interdependent guarantees of Section 7, I shall
recommend that said Respondent Carroll cease and desist
from infringing in any manner upon the rights guaranteed
in said section . N.L.R.B. v. Express Publishing Company
312 U.S. 426, 437; N.L.R.R. v. Entwistle Mfg. Co. 120
F.2d 532, 536 (C.A. 4).
Because of the unlawful discrimination by said Joe
Carroll in discharging his said employees , I shall require
him to reinstate them in jobs equivalent to those they held
prior to the discrimination against them ; and I shall also
impose upon him the burden of making them whole for
loss of earnings in the same amount and manner, with
interest , as hereinbefore provided in this remedy section of
this Decision with respect to the Respondent Union.
[Recommended Order omitted from publication.]