Castaways Hotel

National Labor Relations Board - Board Decisions

Jul 16, 1980

250 N.L.R.B. 626 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevada Resort Association; Summa Corporation, d/
b/a Castaways Hotel; Summa Corporation, d/b/
a Desert Inn Hotel and Country Club; Summa
Corporation, d/b/a Frontier Hotel; Summa Cor-
poration, d/b/a Sands Hotel; Hotel Properties,
Inc., d/b/a Landmark Hotel; Circo Resorts,
Inc., d/b/a Circus Circus Hotel and Spa; Desert
Palace, Inc., d/b/a Caesars Palace; M & R In-
vestment Co., Inc. d/b/a Dunes Hotel and
Country Club; Hilton Hotels Corp., d/b/a Fla-
mingo Hilton; Las Vegas Hilton; Sahara Nevada
Corporation d/b/a Sahara Hotel; Paradise Road
Hotel Corp., d/b/a Thunderbird Hotel and
Casino; Hotel Conquistador, Inc., d/b/a Tropi-
cana Hotel and Country Club and Musicians
Union of Las Vegas, Local No. 369, American
Federation of Musicians, AFL-CIO
Musicians Union of Las Vegas, Local No. 369,
American Federation of Musicians, AFL-CIO
and Nevada Resort Association. Cases 31-CA-
6306 and 31-CB-2368
July 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 5, 1979, Administrative Law
Judge David G. Heilbrun issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and Respondents Nevada Resort Associ-
ation, et al., herein referred to collectively as the
Employer, filed exceptions and supporting briefs,
and Respondent Musicians Union of Las Vegas,
Local No. 369, American Federation of Musicians,
AFL-CIO, herein referred to as the Union, filed a
brief in support of the Administrative Law Judge's
Decision.
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 and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
i We find no merit in the Employer's allegation of bias on the part of
the Administrative Law Judge. There is no basis for finding that bias or
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of those witnesses who testified on
behalf of the Union. As the Supreme Court has stated, "total rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact." N.L.RB. v. Pittsburgh Steamship Company, 337 U.S. 656
(1949). Moreover, it is the Board's established policy not to overrule an
administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully exam-
ined the record and find no basis for reversing his findings However, we
250 NLRB No. 118
We agree, for the reasons stated by the Adminis-
trative Law Judge, that the Employer's lounge mu-
sicians2 are employees within the meaning of Sec-
tion 2(3) of the Act, and are not independent con-
tractors as maintained by the Employer. We also
agree with the Administrative Law Judge's conclu-
sory finding that the Employer violated Section
8(a)(5) of the Act by withdrawing recognition from
the Union as the exclusive collective-bargaining
representative of the Employer's lounge musi-
cians. 3
The facts with regard to the withdrawal of rec-
ognition are fully set forth in the Administrative
Law Judge's Decision. On February 6, 1976, 4 the
Employer delivered to the Union its counterpro-
posal for a renewal of the then-existing collective-
bargaining agreement. The Employer's proposal
defined the bargaining unit as "those musicians
who were employed as members of the house or-
chestra," thus excluding lounge musicians from the
bargaining unit, despite the fact that lounge musi-
cians had been included in the unit since at least
1966. Although the Union adamantly refused to
accede to the Employer's demand, the Employer
persisted in its unwavering insistence that the new
collective-bargaining agreement cover only the
house orchestra musicians. Faced with this demand
for exclusion of lounge musicians, the Union
agreed to set the issue aside and proceed with ne-
gotiations on other matters.
Notwithstanding the agreement to defer resolu-
tion of the lounge musician issue, we find that by
withdrawing recognition from the Union as the
representative of the lounge musicians on or about
February 6, at a time when the Employer enter-
tained no reasonable doubt of the Union's majority
status and had no other legitimate consideration for
withdrawal of recognition, the Employer violated
Section 8(a)(5) and (1) of the Act. As noted by the
Union and the General Counsel, the fact that the
Employer believed that the lounge musicians were
independent contractors does not justify or excuse
the resulting refusal-to-bargain violation. Similarly,
the fact that the Union agreed to defer the lounge
do not rely upon and we disavow the Administrative Law Judge's char-
acterizations of several of the Employer's witnesses.
The Employer has requested oral argument This request is hereby
denied as the record, the exceptions. and the briefs adequately present the
issues and positions of the parties.
2 Musicians performing in the Employer's cocktail lounges and restau-
rants are termed "lounge musicians" to distinguish them from members of
the house orchestra who play in the Employer's main showrooms.
3 The Administrative Law Judge found, and we agree, that an over-
whelming number of the lounge musicians are employees. That several of
the lounge musicians may possess some indicia of independent contractor
status does not alter our finding of the 8(a)(5) violation, inasmuch as the
Employer withdrew recognition from the Union without making any dis-
tinctions among the lounge musicians.
4 Unless otherwise noted, all dates are 1976.
626
CASTAWAYS HOTEL
musician issue does not legitimize the Employer's
withdrawal of recognition. Accordingly, we adopt
that part of the Administrative Law Judge's Deci-
sion which found that the Employer violated Sec-
tion 8(a)(5) of the Act. s
With respect to the allegation that the Union
violated Section 8(bX3) of the Act by refusing to
execute a written contract incorporating the terms
of an alleged oral agreement, it is uncontradicted
that the Employer and the Union reached an oral
agreement on March 25, and that at a general
membership meeting on March 31 the members of
the Union ratified the agreement. Subsequently, a
second membership meeting was held wherein the
membership directed the Union's leadership not to
sign the March 25 agreement. On May 4, the
Union's president, Jack Foy, advised the Employer
that the Union would not execute the agreement.8
The Union conceded at the hearing that the writ-
ten contract prepared by the Employer accurately
portrayed the agreement reached on March 25.
Nevertheless, the Administrative Law Judge found
that for Section 8(d) purposes the Union did not
refuse to execute an agreed-upon collective-bar-
gaining agreement because a major feature re-
mained subject to an unfulfilled condition subse-
quent. We cannot agree.
Initially, we note that the Administrative Law
Judge did not specify the condition subsequent in-
volved. The condition referred to apparently was
the submission of the lounge musicians' employee
status to a third party. However, we find no record
evidence to support the existence of that, or any
other, condition subsequent. Ivan R. Ashleman, the
Union's chief negotiator and attorney, testified that
on March 10 he proposed that the parties agree to
a contract covering all issues not in dispute, that is,
all issues except the unit placement of the lounge
musicians. Under his proposal, the employee status
of the lounge musicians would be resolved through
a Board or other legal proceeding and, if the reso-
lution was in the Union's favor, continued bargain-
ing and amendment of the then-existing collective-
s Member Penello is of the view that, since the Employer persisted in
demanding that the lounge musicians be excluded from the unit despite
the Union's continuing rejection of that proposal, its conduct amounted
to an unlawful insistence to the point of impasse upon a nonmandatory
subject of bargaining in violation of 8(a)(5) and (I). See. e.g,, National
Fresh Fruit A Vegetable Company and Quality Banana Co.. Inc.. 227
NLRB 2014 (1977), enforcement denied 565 F.2d 1331 (5th Cir. 1978).
6 That the membership directed its leadership not to execute the
agreed-upon collective-bargaining agreement, after having first ratified
that agreement, is no defense to the instant 8(b)(3) proceeding. Having
once approved the contract, the employees were bound by such approval
unless the Employer assented to their reconsidering that action. General
Teamsters. Chauffeurs and Helpers Local 249, affiliated with International
Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of .4mer-
ica (V. 4 M Manufacturing Company), 168 NLRB 389, 391 (1967) There
is no evidence herein to establish that the Employer gave an), such
asse n t.
bargaining agreement to include the lounge musi-
cians would result. In the meantime, Ashleman tes-
tified, the parties "would have a contract for the
non-disputed areas." On March 25, Ashleman put
forth this same proposal, which the Employer ac-
cepted the same day. As noted above, the Union's
membership ratified the agreement on March 31.
Prior to the ratification vote, Ashleman explained
to the membership that the lounge musicians were
not included in the contract due to legal problems
relating to their status as employees. Ashleman fur-
ther explained that, once the lounge musicians'
status had been clarified, bargaining for their inclu-
sion in the contract would continue. There is no
contention that Ashleman ever referred to any con-
dition subsequent, and we find no evidentiary basis
for concluding that any such condition existed.7
In its answer to the complaint, the Union ad-
mitted that it had agreed to a collective-bargaining
agreement embodying terms and conditions of em-
ployment for employees engaged in house orches-
tras. It further admitted that it subsequently refused
to sign that collective-bargaining agreement. The
record fully supports the Union's admissions.
Indeed, any contention to the contrary would be
totally groundless. Although neither the Union nor
any other party alleged that execution of the agree-
ment was subject to a condition subsequent, the
Union did raise the defense that its obligation to
sign the agreed-upon contract was excused by the
Employer's violation of Section 8(a)(5). In support
of its contention, the Union cited Dixie Sand and
Gravel Company, 231 NLRB 6 (1977), for the prop-
osition that a violation of Section 8(b)(3) based
upon a refusal to execute an agreed-upon contract
will not be found where the alleged agreement was
the direct result of the employer's refusal to bar-
gain and the product of employer coercion. While
we agree with the principle expressed in Dixie
Sand and Gravel, we find that principle inapplicable
herein. In the instant case, the agreement between
the Union and the Employer was not the direct
result of any coercion by the Employer; indeed, it
was the Union which proposed that a separate
agreement be entered into covering the house or-
chestras. While it may be true that but for the Em-
ployer's withdrawal of recognition, which we
found to have violated Section 8(a)(5), no separate
agreement would have been reached, we find the
nexus between the withdrawal of recognition and
the Union's proposal for a separate contract for
house orchestra musicians insufficient to justify the
? The "interim agreement" referred to in Union President Foy's letter
of April 20 clearly referred to the parties' agreement to resolve the
lounge musician issue, and not the subject collective-bargaining agree-
ment as stated h) Ihe Administrative LIaw Judge.
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's failure to execute the contract resulting
from its proposal. Unlike Dixie Sand and Gravel,
here no coercion was applied by the Employer to
insure that the contract be accepted by the Union
or the employees. Thus, we cannot find that the
circumstances present in Dixie Sand and Gravel,
and the legal principle resulting therefrom, have
any application to the instant dispute. Accordingly,
we reject the Union's defense.
Having found that on or about March 25 the
Employer and the Union reached full and final
agreement for a collective-bargaining agreement
covering employees engaged in house orchestras,
and having further found that the Union refused to
sign that collective-bargaining agreement, which
refusal was unjustified, we therefore find and con-
clude that the Union violated Section 8(b)(3) of the
Act, as alleged in the complaint, and shall order it
to take appropriate remedial action. 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Nevada Resort Association, Las
Vegas, Nevada, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with Musi-
cians Union of Las Vegas, Local No. 369, Ameri-
can Federation of Musicians, AFL-CIO, in regard
to rates of pay, wages, hours of employment, or
other conditions of employment for persons em-
ployed in the appropriate bargaining unit described
below:
All employees engaged as musicians employed
by the employer-members of the NRA at their
Las Vegas, Nevada, establishments, excluding
all other employees, including guards and su-
pervisors as defined in the Act.
s We note that the collective-bargaining agreement reached on March
25 expired by its terms on April I, 1980. Nevertheless, for the reasons
stated in International Union, United Automobile. Aircraft and Agricultural
Implement Workers of America (UA W). AFL-CIO (Maremonr Automotive
Products. Inc.), 134 NLRB 1337, 1339, fn. 4 (1961), we shall order that
the Union execute the aforesaid collective-bargaining agreement upon the
Employer's request
On the facts presented herein, we do not believe that our findings of an
8(aX5) violation and an 8(bX3) violation are mutually exclusive While re-
lated, the violations arise from separate conduct at different times, and
each violation stands independent of the other. Although we have found
that the Employer unlawfully withdrew recognition from the Union with
respect to lounge musicians on February 6, the parties thereafter agreed
to bargain on all other issues and to reduce any agreement reached to a
written collective-bargaining agreement. Having reached full agreement
on March 25 as to all issues apart from the status of lounge musicians, the
Union was obligated to execute that agreement when reduced to writing
Its refusal to do so was a per se violation of the Union's duty to bargain
as defined in Sec. 8(d) of the Act
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain with Musicians Union
of Las Vegas, Local No. 369, American Federation
of Musicians, AFL-CIO, relative to the bargaining
unit described in paragraph l(a) above and, upon
further request, execute a written contract incorpo-
rating any agreement reached.
(b) Post the attached notice marked "Appendix
A" at its Las Vegas, Nevada, office and on the
premises of each member establishments Copies of
said notice, on forms to be provided by the Re-
gional Director for Region 31, after being duly
signed by Respondent or an authorized representa-
tive, shall be conspicuously posted immediately
upon receipt and be maintained for 60 consecutive
days thereafter in all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
B. Respondent Musicians Union of Las Vegas,
Local No. 369, American Federation of Musicians,
AFL-CIO, Las Vegas, Nevada, its officers, agents,
and representatives, shall:
1. Cease and desist from refusing to bargain col-
lectively in good faith with Nevada Resort Associ-
ation as to wages, hours, and other terms and con-
ditions of employment, by refusing to sign the col-
lective-bargaining agreement upon which the par-
ties have agreed or from engaging in any like or
related conduct in derogation of its statutory duty
to bargain.
2. Take the following affirmative action neces-
sary to effectuate the purposes and policies of the
Act:
(a) On request by Nevada Resort Association,
execute the contract with it that was agreed upon
on or about March 25, 1976.
(b) Post at its office and meeting hall copies of
the attached notice marked "Appendix B."°O
Copies of said notice, on forms provided by the
9 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
'° See fn. 9, vupra
628
CASTAWAYS HOTEL
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, 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.
(c) Furnish to the said Regional Director suffi-
cient signed copies of the aforesaid notice for post-
ing by Nevada Resort Association, if it be willing,
to be posted in all places where notices to Nevada
Resort Association's employees are customarily
posted.
(d) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX A
NOTICE To EMPLOYI FS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse the request of Musi-
cians Union of Las Vegas, Local No. 369,
American Federation of Musicians, AFL-CIO,
to bargain with respect to all persons in the
appropriate bargaining unit described below:
All employees engaged as musicians em-
ployed by the employer-members of the
NRA at their Las Vegas, Nevada, establish-
ments, excluding all other employees, in-
cluding guards and supervisors as defined in
the Act.
WE WILL NOT continue to assert that musi-
cians engaged to perform in lounges of the
Strip hotels are outside the coverage of the
bargaining unit just described.
WE WILL NOT in any like or related manner
interfere wih, restrain, or coerce our employ-
ees in the exercise of rights protected by the
National Labor Relations Act.
NEVADA RESORT ASSOCIATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
in good faith with Nevada Resort Association,
by refusing to sign the collective-bargaining
agreement to which we agreed on or about
March 25, 1976, and WE WILL NOT engage in
any like or related conduct in derogation of
our statutory duty to bargain.
WE WILL, if requested by Nevada Resort
Association, execute the contract on which we
reached agreement on or about March 25,
1976.
MUSICIANS UNION OF LAS VEGAS,
LOCAL No. 369, AMERICAN FEDER-
ATION OF MUSICIANS, AFL-CIO
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Las Vegas, Nevada, on various dates
spanning September 6 through December 6, 1978. The
hearing was based on a consolidated amended complaint
issued April 13, 1978, stemming from charges filed in the
summer of 1976. Essential allegations of this complaint
are: (1) Commencing on or about February 6, 1976, the
Nevada Resort Association (hereafter often called NRA
or Association), comprised for collective-bargaining pur-
poses of firms engaged in the operation of Las Vegas
hotels and gambling casinos, withdrew recognition from
Musicians Union of Las Vegas, Local No. 369, American
Federation of Musicians, AFL-CIO (hereafter often
called Union or Local 369), as the exclusive representa-
tive of persons performing as musicians in the lounge
shows or bands of NRA establishments, while thereafter
refusing to recognize or to meet and bargain with the
Union with respect to terms of any collective-bargaining
agreement covering such persons, and (2) commencing
on or about May 4, 1976, the Union has continually re-
fused to execute a written contract incorporating terms
of an oral agreement assertedly reached on or about
March 31, 1976, to cover employees performing as musi-
cians in the house orchestras of NRA establishments.
The context for issues arising therefrom is a further alle-
gation that since 1951, but particularly since April 7,
1973, the Union has been the exclusive bargaining repre-
sentative of employees in a single multiemployer unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act and set forth as:
All employees engaged as musicians employed by
the employer-members of the NRA at their Las
Vegas, Nevada establishments, excluding all other
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, including guards and supervisors as de-
fined in the Act.
Upon the entire record, my observation of witnesses
and consideration of post-hearing briefs,' I make the fol-
lowing:
FINI)INS OF FACT AND CONCI.USIONS OF LAW
This collective-bargaining relationship originated with
informal dealings over the decade of 1946 to 1956. Then
an association named the Nevada Industrial Council ma-
terialized to represent several hotels operating in Las
Vegas. Its coordinator first signed a simple form of labor
contract with the Union in 1956. A series of such docu-
ments followed until this manner of dealing was sup-
planted following effectiveness of a certain "Master
Agreement" of 3 years' duration ending November 15,
1969. This agreement had recited it was to "govern the
relations between the respective parties." Further, it con-
tained numerous "conditions" that set pay scales, estab-
lished a deferred health and welfare insurance program,
defined vacation eligibility, and otherwise largely adopt-
ed various union work practice policies, many of which
were rooted in the bylaws of Local 369.
The NRA was formed in 1966 and soon William N.
Campbell was appointed as its director of labor relations
(now retitled managing director), with responsibility for
negotiating and administering labor agreements between
member establishments and various unions of the vicini-
ty. 2 After settling into the position Campbell negotiated
labor agreements early in 1969 with the Laundry and
Dry Cleaning Union and American Guild of Variety
Artists (AGVA). He then formulated objectives toward
a renewed agreement with Local 369, in anticipation of
bargaining expected to commence that fall. In doing so
his most conscious interest was to achieve a "more
orthodox" labor agreement, with particular reference to
devising no-strike language, providing grievance and ar-
bitration procedure, and expressing management rights.
Negotiations did ensue and after a short hiatus following
expiration of the 1966-69 contract a new agreement was
reached on January 15, 1970, for a term extending
through November 15, 1972. According to its preamble,
the fruit of bargaining here was "complete agreement on
compensation, hours of work, working conditions, proce-
dures for settling disputes and other related subjects ...
The NRA's motion at p. 106 of its brief, that it be permitted to
amend par. 17 of its answer by deleting verbiage, is granted
t The NRA is a voluntary, nonprofit corporation headquartered in Las
Vegas, Nevada, which admits certain hotel and gambling casino firms lo-
cated there to membership, and exists in whole or in part for the purpose
of negotiating, executing, and administering multiemployer collective-bar-
gaining agreements on behalf of its employer-members with relation to
representatives of their employees. The employer-members of NRA col-
lectively receive annual gross revenues in excess of $500,000, while pur-
chasing and receiving goods and supplies valued in excess of $50,000 di-
rectly from sources outside Nevada. I therefore find, as admitted, that
NRA and its employer-members are collectively and at all material times
an employer within the meaning of Section 2(6) and (7) of the Act. Fur-
ther, I find that Local 369 exists in part to secure improved wages, hours,
working conditions, and other economic advantages through organizing,
negotiations and collective bargaining, and, therefore, as admitted, is a
labor organization within the meaning of Section 2(5).
which shall be applicable to all musicians employed or
engaged by the Employers during the term hereof."
Article 2 - Recognition read:
2.01 Recognition of the Union. The Employers
and the Association recognize the Union as the ex-
clusive, collective bargaining representative for all
musicians, including leaders, now or hereafter em-
ployed or engaged by the Employers to perform at
their Clark County, Nevada establishments, but ex-
cluding all other personnel employed or engaged by
the Employers. Wherever used in this Agreement,
the term "employed or engaged" shall be construed
to refer to those musicians engaged to perform at
the Employer's Clark County establishment, pursu-
ant to a Form "B" Contract, a copy of which is at-
tached hereto as Exhibit 2, executed by the Em-
ployer and by a leader.
2.02. Recognition of the Association. The Union
recognizes the Nevada Resort Association as the ex-
clusive collective bargaining representative for all
establishments which are members of the Associ-
ation who now or hereafter employ or engage musi-
cians to perform at such establishments in Clark
County, Nevada, and who now or hereafter desire
to become parties signatory to this Agreement. The
Association shall give written notice to the Union
whenever additional members become parties to this
Agreement. This Agreement shall become applica-
ble to any such additional members of the Associ-
ation effective as of the date specified in such
notice. A member of the Association who is or who
becomes a party to this Agreement, and who there-
after withdraws from the Association during the
term of this Agreement, shall nevertheless, continue
to be bound by all of the terms and provisions of
this Agreement.
Additionally, the agreement did contain commonly
found language on the three subjects of purposeful inter-
est to Campbell going in.
At this point in time leaders of musicians universally
fulfilled payroll functions for their group. This practice
arose in 1954 and has continued in the locale without
abatement to the present time. Jack M. Foy, president of
Local 369 since 1955, described its origin in the earlier
years of the fifties, emphasizing that it applied from the
inception to both house orchestras and lounge groups.
He recalled how hotel owners of that era became disin-
clined to continue with burdensome bookkeeping as nu-
merous musicians performed on miscellaneous short-term
bases, and translated such dissatisfaction into the bargain-
ing process. The Union bowed to this argument, one that
also tied to the inconvenience of supplying year end W-
2 statements to often dispersed musicians. The technique
rapidly became dogma, and a well-established phase of
providing services to the then fledgling gambling indus-
try of Las Vegas. In consideration of what was under
taken by band leaders a 10-percent fee was added to total
compensation of the group. This was meant to cover
withholding taxes and other lawful levies on earnings,
plus recompense for the toil of keeping records and actu-
630
CASTAWAYS HOT(lI
ally distributing weekly earnings to musicians.:' A safe-
guard was added through a contractual memorandum of
understanding on the subject of "I.eaders' Employer Re-
sponsibility Costs." As effective through early 1976 it
read:
During the negotiations over the terms and pro-
visions of the labor agreement attached hereto, the
following understanding was reached on Leaders'
Employer Responsibility Costs.
The Employers represented by the Association
agree, subject to the following conditions, to reim-
burse leaders for any losses suffered by reason of
any increases in Social Security, N.I.C. and/or Em-
ployment Security contributions required of leaders.
The conditions are:
First, that the leader shall have the burden of
proving that he has suffered a loss because of
such increases, and second, that in computing his
Employer Responsibility Costs, the amount of
bookkeeping expense allowed shall be the fee ac-
tually paid . . . or a fee of 1.5% of payroll,
whichever is less.
The mechanism on which actual utilization of talent
hinged was the form "B" ("B-2B") musicians contract.
Picking up with the collective-bargaining agreement of
1966-69, its use was made mandatory merely as to filing
with the Union "within 48 hours after the beginning of
engagement." Express treatment of the subject increased
dramatically in the 1970-72 contract, where the former
reference, as quoted immediately above, was elaborately
enlarged upon in articles 5-9 by language out of which
the following passages are selected:
ARTICLE 5
Contracts for Engagements
5.01. Standard Form of Musicians' Contracts. All
musicians employed or engaged by the Employer
shall be engaged pursuant to a Form "B" Contract,
executed by and between the Employer and a
leader, a copy of which is attached hereto as Exhib-
it 2 and made a part hereof. It is mutually agreed
that all conditions of the form "B" Contract must
be strictly complied with, but in the event of any
inconsistency between this Agreement and the
Form "B" Contract, this Agreement shall control.
5.02. Filing of Form "B" Contracts. A copy of
the Form "B" Contract with the musicians' names
inserted on the reverse side thereof shall be filed by
the leader within forty-eight (48) hours after the be-
ginning of the engagement.
s As years passed the leaders evolved more complex forms of this
practice. In keeping with general growth of Las Vegas as a resort and
entertainment destination, larger showrooms at more modern hotels
meant larger house orchestras. This natural outgrowth led to use of out-
side accountants, bank checking accounts in the leader's name or in
tandem with the establishment, and generally more fiormalistic, or at least
more orderly, fulfillment of steps in calculating, disbursing. and recording
musicians' pay.
5.03. Prior Notice of Scheduled Engaigellcni
Notwithstanding the provisions of Section 5 I)2, ilth
Employer shall he obligated to give a(clv:ce no iltl.
in writing or by telegrani. to the Union of eliaplo-
ni[it or engagcmeilt of rfltsiciaiis a; his (';iirk
County establishment. Such notice sh:all 1bc IilIcd
prior to the first performance :ald shall specify thl
identity of the orchestra, group or indi, itd:ll in-
volved, the opening date and the intenlltd iur atin
of the engagement.
5.04. Contract Periods. Contracts mag bc % ii nil
for any definite period or for an indefinite period I!
a contract for a definite period is not clteindcd. in
writing, for a definite period beyond its orriminl .x-
piration date and the musicians' serviews oni sui h ci
gagements are continued without a break. lhc mnusi-
cians involved will be considered to hliavIe hcnr ci-
gaged on an indefinite basis from the origilnal expi-
ration date and the notice provisions set forth ii
Section 7.01 (b) shall apply.
ARTICLE 6
Leaders' and Employers' Obligations
6.01. Leaders' Obligations. With respect to Alny
engagements pursuant to a Form "B" Contract cx-
ecuted by and between an Employer and .i lCaidCI,
the leader shall, as agent of the Employer-, niforcc
disciplinary measures for just cause, and shall c:rr-y
out the Employer's instructions, if any, as to sL !i-
tions and manner of performance. The leader shill,
on the Employer's behalf, distribute colpelnsatiOn
received from the Employer to the musicians, in-
cluding himself, and shall promptly remit to tilt
Employer receipts therefor. The leader shall also be
responsible for promptly furnishing to the I mp!oy-
er an accounting of amounts due for Health and
Welfare payments and for withholding and p.yrnlelti
of F.I.C.A. and Federal Income Tax and paynenlt
of any other Federal and State Employment taxes
6.02. Employers' Obligations. With respect to alny
engagements pursuant to a Form "B" Contract ex-
ecuted by and between an Employer and a leader,
the Employer's sole financial obligation shall be to
remit to the leader, at the times set forth in the
Form "B" Contract, such amounts as are specifi,-d
therein, plus any additional amounts due, under the
terms of this Agreement, with respect to perform-
ance of additional services The Employer ,hiall also
be obligated to remit such amounts as are niecissary
to cover the cost of contributions required to he
made on behalf of eligible musicians in accord:;lm.e
with Articles 24, 25 and 26 hereof.
ARTICLE 7
Notice of Termination of Form "B" Contracts
7.01 (a) Contracts for a Definite Period. No
notice of contract termination shall he requlitre
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any party when the contract has been entered
into for a definite period, nor when a contract for a
definite period has to be extended in writing for a
definite period prior to its scheduled expiration
date.
(b) Contracts for an Indefinite Period. When the
contract is for an indefinite period, or when a con-
tract for a definite period is not extended in writing
for an additional definite period but the engagement
is continued beyond the original expiration date
without a break, the Employer, leader and/or musi-
cians, as the case may be, shall be required to give
or shall be entitled to receive two (2) weeks written
notice except as provided in Section 7.01(c).
(c) Variations in Periods of Notice. Notwith-
standing the provisions of Section 7.01(b), the par-
ties to a contract may specify a notice of contract
termination in excess of two (2) weeks. Likewise,
the parties may mutually agree to less than two (2)
weeks' notice but, in such event, the approval of the
Union must be secured and all sidemen shall be re-
quired to sign a rider attached to the contract signi-
fying their agreement to such shorter period of
notice.
(d) Manner and Time of Notice. All notices of
contract termination required to be given shall be in
writing. Notices shall be given or received during
the regular working hours of an engagement, if pos-
sible, and shall become effective that day. If it is not
possible to give notice in person, any party may do
so by registered or certified mail to the last known
address of the musician or to the business office of
the leader or Employer, as the case may be. A copy
of all notices of termination shall be forwarded to
the Union within forty-eight (48) hours of the time
the notice was given. Anything contained in this
agreement to the contrary notwithstanding, a lead-
er's or musician's contract may be terminated for
just cause without any advance notice.
ARTICLE 8
Options
8.01. Option Periods. Option periods shall be
such as are mutually agreed to by the parties and
must be specified in the Form "B" Contract.
8.02. Notices on Options. Any notice to exercise
an option must be in writing and a copy of said
notice shall be furnished to the Union.
ARTICLE 9
Contract Performance - Penalties
9.01. Obligation to Fulfill. Except as provided in
Section 9.02, musicians are obligated to fulfill the
terms of all Form "B" Contracts entered into unless
such contracts have been abrogated by mutual con-
sent of all parties thereto with the approval of the
Union.
9.02. Musician's Failure to Perform. The agree-
ment by any musician to perform shall be subject to
proof of detention by sickness, accident, riot, acts of
God or other legitimate conditions beyond his con-
trol and for the reasons and to the extent expressly
permitted by Article 16 of this Agreement. The
Employer shall not be obligated to pay for any per-
formances missed by a musician's failure, refusal or
inability to perform, regardless of the reason.
9.03. Employer's Failure to Perform. There shall
be no reduction of any musician's compensation be-
cause of performances omitted or cancelled by the
Employer except where such omission or cancella-
tion results from legitimate conditions beyond the
Employer's control, such as work stoppages, acci-
dents, fires, floods, storms, power failures and the
unavailability of other musicians whose work or
service is essential to the performance by the musi-
cians covered by this Agreement.
9.04. Failure to Perform - Cancellation of Form
"B" Contract. In the event of a leader's or musi-
cian's failure to perform under a Form "B" Con-
tract covering an engagement lasting in excess of
one week due to any of the reasons enumerated in
Section 9.02, then, any time after one week of such
failure to perform, the Employer may elect to
cancel and terminate such leader's or musician's
Form "B" Contract without advance notice. In the
event of an Employer's failure to perform under a
Form "B" Contract covering an engagement lasting
in excess of one (1) week, for reasons enumerated in
Section 9.03, then, any time after one (1) week of
such failure to perform, the leader or musicians
covered thereby may elect to cancel and terminate
the Form "B" Contract without advance notice.
The failure or refusal by either party to perform for
any reason not enumerated in Sections 9.02 and 9.03
shall entitle the other party to cancel and terminate
the Form "B" Contract immediately, without ad-
vance notice, regardless of the duration of such
contract; provided, however, that such cancellation
and termination shall not affect the aggrieved
party's right to pursue additional remedies under
the grievance procedure established by this Agree-
ment; provided further that nothing herein shall
preclude the Union from taking such additional ac-
tions against a leader or musicians as it deems
proper to penalize such musicians for willful refusal
to perform.
It is useful to demonstrate parallels involved between
this language on the one hand, and relevant content of
Local 369's bylaws. The comparison shows clearly that a
connection existed at this juncture in the churning evolu-
tion of contract language. In pertinent part the Union ex-
hibited itself thus:
632
CASTAWAYS HOTEL
ARTICLE VI
CONTRACTS
SECTION 1
REQUIREMENTS OF CONTRACTS
(a) Every contract entered into by a member
with an employer in any establishment within the
jurisdiction of this Local Union shall be made in
conformity with the Bylaws of the American Fed-
eration of Musicians and the By-Laws of this Local
Union, and under such rules and regulations not-in-
consistent therewith as the Board of Directors of
this Local Union may prescribe.
(b) Members of the A.F. of M. are not permitted
to sign any form of contract or agreement for an
engagement other than that issued by the A.F. of
M.
SECTION 2
FILING OF CONTRACTS
A copy of the contract with the Musicians'
names and other required information inserted on
the reverse side thereof shall be filed by the leader
within forty-eight (48) hours after the beginning of
the engagement.
SECTION 3
CONTRACT PERIODS
(a) Contracts may be written for any definite
period. If a contract for a definite period is not ex-
tended, in writing, for a definite period beyond its
original expiration date and the musicians' services
on such engagements are continued without a
break, the musicians involved will be considered to
have been engaged on an indefinite basis from the
original date and the employer, leader and/or musi-
cians, as the case may be shall be required to give
or shall be entitled to receive two (2) weeks written
notice except as provided in (b) hereunder.
(b) A leader or contractor may enter into a con-
tract with an employer wherein the parties mutually
agree to less than two (2) weeks notice, but, in such
event, the approval of the Union must be secured
and all sidemen shall be required to sign a rider at-
tached to the contract signifying their agreement to
such shorter period of notice.
ARTICLE VII
LEADERS AND CONTRACTORS
SECTION 1
MUST BE MEMBERS
Every musical engagement played within the juris-
diction of the LOCAL UNION must have a leader
(and/or contractor), and all leaders and contractors
must be members, in good standing, of the A.F. of
M.
SECTION 2
DUTIES OF LEADERS and/or
CONTRACTORS
(a) Leaders or contractors accepting steady en-
gagements (indefinite or definite in length) must im-
mediately report to the Secretary-Treasurer's office,
in writing, the names of all members employed on
such engagement; also, all changes in personnel, as
well as the names of any and all additional members
who may from time to time be employed on such
engagement. Hiring Forms for this purpose are ob-
tainable from the office of the Secretary-Treasurer
of this Local Union.
(b) Leaders and/or contractors who enter into
any legally binding contract must fulfill same unless
abrogated by mutual agreement of leader and em-
ployer and with the consent of the Board of Direc-
tors of this Local Union. In case of complaint
against any member for breach of contract, or fail-
ure to perform, the Board of Directors shall take
such action as is necessary to enforce said contract,
or may impose such penalty against said member as
shall be legal and proper.
(c) No leader or contractor shall furnish either
more or less musicians than are employed under the
terms of his contract. The number of musicians al-
lowed on the bandstand at any one time on any en-
gagement shall be governed by the number of musi-
cians under contract for that engagement at that
time.
(d) Any notice to exercise an option must be in
writing and a copy of said notice shall be furnished
to the Union by the Employer.
(e) No contract for any steady engagement shall
be accepted unless it bears the signatures of the
leader and an authorized signator of the establish-
ment wherein the engagement is to take place.
SECTION 3
HIRING FORMS
(a) Leaders and/or contractors who hire mem-
bers on a steady or term engagement shall be re-
quired to use the "Hiring Form" which is provided
for this purpose by the office of the Secretary-Trea-
surer of this Local Union. Such "Hiring Forms"
shall be in triplicate, each copy to be signed by both
leader (or contractor) and sideman, one copy to be
retained by the leader (or contractor), one copy to
be retained by the sideman, and one copy to be filed
with the office of the Secretary-Treasurer of this
Local Union by the Leader or Contractor within
Forty-Eight (48) hours after "Hiring Forms" are
signed; but, in no case later than Forty-Eight (48)
hours prior to the commencement of the engage-
ment or of the first rehearsal for the engagement.
633
DIECISIONS O()F NATIONAL LABOR RELATIONS BOARD
Failure of the leader (or contractor) to comply with
the provisions of this section shall subject the leader
(or ciontractor) to a fine not to exceed Four Hun-
drcd and Fifty Dollars ($450) should he be found
guilty by the Trial Board of this Local Union.
As to the form "B" itself, found in this record as a re-
vision dated March 1974, the document essentially
served to contractually define location, duration, and
compensation of and for musical services to be personal-
ly rendered by listed individuals with a signatory leader.
The contracting establishment was ceremonially denomi-
nated as "Purchaser of Music," a stilted appellation
quickly and consistently thereafter termed the "Employ-
er." The provision of greatest significance is paragraph 6
reading:
The Employer shall at all time have complete su-
pervision, direction and control over the services of
musicians on this engagement and expressly reserves
the right to control the manner, means and details
of the performance of services by the musicians in-
cluding the leader as well as the ends to be accom-
plished. If any musicians have not been chosen
upon the signing of this contract the leader shall, as
agent for the Employer and under his instructions,
hire such persons and any replacements as are re-
quired.
Additional unnumbered "terms and conditions" of this
document recite that:
'Tlhe leader shall, as agent of the Employer, enforce
disciplinary measures for just cause and carry out
instruction as to selections and manner of perform-
ance. 4
Campbell fulfilled his usual role of principal spokes-
man for the NRA in 1973 contract negotiations with the
Unionl. Reflecting on certain new developments occur-
ring over the period 1970-72 as they affected utilization
of musicians at the resort hotels, he testified that the In-
ternal Revenue Service had assumed an enforcement po-
sition that could hold NRA member firms liable for
withholding taxes should there be dereliction by a con-
tracting hand leader. Secondly, he reconstructed how
unfair labor practice charges filed by AGVA against the
NRA were unresolved as of early 1973, leaving perplex-
ing thoughts about independent contractor status of en-
tertainment performers in the minds of industry manag-
ers.6 With this influencing configuration Campbell had
Much more cxtensise excerpting of the form "B," in all regards iden-
tical to tihe kTov.ll 1974 revision, is found in .4ssociared Musician. Local
#16 (f1i, aindl lrrioK Manor Inc.). 206 NLRB 581. 587-588 (decided Oc-
tober 25, 1073) relative to issues cognizahle there under Section 8(b)(4) of
the Act.
I I hie a.rti l rersulting froml these dealings was retroactively effec-
tive Iron NoLmcinber 16. 1972, through February 15, 1976. While its Iernm
technicallNy spailnrted portions of the 5-calendar-year spread 1972 76 for
',orIe purposes. it has been most frequently identified as vintage "1973," a
referncie mlost likely based on actual execution when "entered into" on
April 7. 1973 A further colloqiialism of' note is its labelling as the "blue
book"
" Il 1971 the NRA haid disciontinured recogilitilon of AiVA as bargain-
mg represnllativc fii anlt oseralil unit of artists performing in tils Vegas.
Nlotiv.litilll fur this was a cornviction that a substantial number of such
entered 1973 negotiations in hopes of establishing a clear
delineation between when hotels would act as employers
of musicians and when they would discretionarily exer-
cise some acknowledged right to contract for musical
services. As in prior years Campbell led a bargaining
committee of fluctuating composition, while the Union
was principally represented by attorney Ivan R. (Renny)
Ashleman 11, assisted chiefly by Foy and Secretary-Trea-
surer Mark Tully Massagli.
Campbell testified that when discussion reached the
critical point harbored by NRA strategists, response
from Local 369 was to oppose the general concept of al-
lowing hotels to act as employers of musicians. Campbell
took this to be a status-oriented position, whereby as pro-
fessional performers the musicians wished to disassociate
from any prosaic overtones in their relationship to the
hotels. The Union's version of things, found primarily in
testimony of Ashleman, is that the subject posed a "very
severe dispute holding up an agreement," and notwith-
standing an offer by the hotels to retract this demand its
spectre was sufficiently haunting that constituent musi-
cians, preferring artistic directions only from a band
leader, desired "some affirmative expression of intention"
on the point. From this a "side letter" (formally a
Memorandum of Understanding) evolved as a gloss to
the recognitional language of the new 1973 contract
which itself read, in part:
The Employers and the Association recognize the
Union as the exclusive collective bargaining repre-
sentative for all musicians now or hereafter em-
ployed by the Employers to perform at their Clark
County, Nevada establishments, excluding all other
personnel employed by the Employers.
The side letter, signed by Campbell, Foy, and Massagli,
was printed in the new blue book immediately following
the appendixes. It read:
WHEREAS, the parties hereto have negotiated a
new labor agreement dated April 7, 1973, a copy of
which is attached hereto; and,
WHEREAS, said labor agreement provides that
the Employers who are parties to said labor agree-
ment shall have the right to either employ musicians
directly or contract for the performance of musical
services at the Employers' establishments in Clark
County, Nevada; and
WHEREAS, prior to the conclusion of negotia-
tions of said labor agreement the Employers agreed
that during the term of the attached labor agree-
ment, namely, April 7, 1973 to and including Febru-
ary 15, 1976, they would not directly employ musi-
cians by placing them on the payroll,
NOW, THEREFORE, it is hereby agreed by
and between the parties that any provisions in the
labor agreement attached hereto to the contrary
notwithstanding, the Employers shall contract for
artists were in fact independent contractors rendering the traditional unit
inapprSopriate The NLRB charges filed by AGVA in challenge of this
position were eventually administratively dismissed on December 7, 1973.
and an appeal Fronm this actioun was denied on May 7, 1974.
634
CASTAWAYS HOTEL
musical services and will not, during the term of
said agreement, employ musicians directly.
Apart from a fundamental and pervading issue in this
case concerning whether NRA members are true em-
ployers of lounge musicians, 7 the critical dynamics oc-
curred in March 1976 when the latest course of bargain-
ing reached a controversial and illusory conclusion. In
November 1975 the parties had exchanged typical cross-
notices of intent to terminate the existing contract. As
part of this the Union presented certain draft proposals,
including recognitional phrasing as follows:
2.01. Recognition of the Union. The Employers
and the Association recognize the Union as the ex-
clusive, collective bargaining representative for all
employees [musicians] now or hereafter employed or
engaged by the Employers to perform at their Clark
County, Nevada establishments, but excluding all
other personnel employed by the Employers.
2.02. Recognition of the Association. The Union
recognizes the Nevada Resort Association as the ex-
clusive collective bargaining representative for all
establishments which are members of the Associ-
ation who now or hereafter employ or engage em-
ployees [musicians] to perform at such establishments
in Clark County, Nevada.
Ashleman testified that between this time and February
6, 1976, the NRA took shifting positions respecting scope
of the unit as one facet of the many subjects under dis-
cussion. Originally the NRA sought to expressly elimi-
nate band leaders and lounge musicians from contract
coverage. Ashleman recalled being confronted with a
rationale based on certain cases pending under Section
8(e) of the Act, although at a point in time prior to
March 10, 1976, the Association modified its stance as to
leaders while clearly seeking to exclude lounge players.
During the entire November 1975-March 1976 time span
the Union was adamantly against tampering with the
status of lounge musicians, and relatedly desired to con-
tinue with a side letter. As negotiations had proceeded
various points were memorialized in compendious writ-
ings that progressively evolved to a relatively complete
contract draft.
Finally, a meeting occurred between the parties on
March 10, 1976, against the background of an imminent
strike. s Ashleman testified that on this date he suggested
to Campbell that the issue of lounge musicians inclusion
within the bargaining unit be resolved collaterally
through court or Board processes, but without meaning
to impede any progress towards settlement of all other
matters still in dispute. Ashleman enlarged on this by em-
phasizing the Union's motivation in having an area stand-
ard for the occupation as a whole and that no legal lia-
7 Sec. 2(3) of the Act expressly excludes "any individual having the
status of an independent contractor" from the statutory definition of the
term employee."
I The contract had been extended day-to-day following February 16.
1976. However, in March 1976 approximately 20,000 persons represented
by the Las Vegas Culinary Union had struck the Association, effectively
forestalling further resort operations and impelling the musicians to com-
mence their strike at the same time
bility ("exposure") should be feared by Association mem-
bers.
Campbell, testifying as to the chronology of negotia-
tions, recalled seeing the Union's contract proposals for
the first time at a meeting held on December 5, 1975. He
viewed the proposed language of Section 2.01-2.02,
quoted above, as reverting back to the 1969 version and
questioned it from this beginning. The Association's posi-
tion was pressed more pointedly when the parties next
met on January 5, 1976, as Campbell voiced "concern
and reservations as to the propriety and the legality" of
what the Union sought, partially in the context of the
operative side letter and the various 8(e) charges filed
within immediate past years. Campbell went so far as to
express "serious reservations about our obligation to bar-
gain with the Union with respect to anybody at that
point in time," although tempering this with further
comment that the question was under advisements In
additional meetings during January the Union adhered to
a position that the side letter was necessary, for the
"emotional" regard the musicians had of themselves as
professionals required the unique relationship that would
guarantee they would not "be treated like busboys in the
hotels." Campbell recalled making a written proposal to
the Union at a session on February 6, in which the bar-
gaining unit was characterized as "those musicians who
were employed as members of the house orchestra ex-
cluding the leader." '
A negative response to the matter was given by the
Union on February 12, reportedly as an adamant stance
of several hundred musicians reacting during an inter-
vening membership meeting. The upshot, in Campbell's
view, was that three "very hard-issues of the status of
the lounge musicians, the status of the leaders, and the
side letter" remained, and he proposed "to try to get it
moving along to set those things aside temporarily and
see if we could reach agreement on terms that would be
applicable to the house orchestra musicians." Campbell's
testimony is that Ashleman "conceded that perhaps that
was the expeditious way to proceed" leading to negotia-
tions on other substantive provisions yet to be reached.
Campbell framed the next meeting of March 10 as oc-
curring in a context of several outstanding issues beyond
those directly related to this case. These were mostly
economic in nature as to relief and traveling band com-
pensation and a cost-of-living clause, while issues with
respect to mechanical music devices and term of the con-
tract were also yet unresolved. Campbell recalled that an
overall economic offer of 32.3 percent was rejected by
the Union as insufficient, and strike notification followed
a scant one-half hour later.
The situation prevailing from March 10 and onward
for several weeks brought forth extreme efforts toward
settlement. These culminated in resolution between all
parties later that month, after "good office" assistance
was extended by the person and staff of Nevada Gover-
9 All dates and named months hereafter are in 1976. unless shown oth-
erwise.
'o This position was based on the Association's view of a 1968 decision
in Reno Musiciun Protective Union. Local 368. AF.M&, 170 NLRB 271
(1968)
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor Mike O'Callaghan." Another phenomenon was the
presence in Las Vegas of ownership interests disturbed
by the shutdown of vital properties in this city. Among
these concerned moguls was Fred Benninger, chairman
of the board of Metro-Goldwyn-Mayer and MGM
Grand Hotel. He recalled being approached by Ashle-
man around March 20 in an office or private area of the
MGM Grand. Benninger testified that Ashleman raised
the possibility of settling the musicians strike indepen-
dently of the Culinary and Stagehands dispute.'2 Ben-
ninger parried this on the basis that he was not fully
aware of all intricacies involved, but he did allude to a
reputedly serious issue concerning lounge musicians.
Benninger's testimony continued with an assertion that at
this point Ashleman said, in so many words, "that he had
no interest in the lounge musicians and that in his opin-
ion the cause was already lost." Benninger recalled his
own concluding remark to be that realities of the situa-
tion required that settlement with the other unions be
achieved first.
Ashleman's version of the episode is that he had
sought out Benninger to solicit the industry's cooperation
in continuing to negotiate the many complicated issues
still unresolved from prestrike musicians bargaining. En-
larging on this at the time, he emphasized the difficult
language problem that remained and advanced a check-
list of the "difficult substantive issues" that would need
work. The two proceeded to discuss the matter of
lounge musicians, Ashleman testifying in this regard that
he said he did not see it as an insurmountable stumbling
block and his earlier proposal to Campbell could be the
needed solution should the NRA not make a timely con-
cession on the point. Because Benninger was unfamiliar
with this, Ashleman recalled explaining that the pending
thought was to clean up "legal difficulties" and if this
course were favorable to the Union then "put the lounge
players back in the contract." From this the assertedly
exploratory meeting ended amicably as a thorough
"hearing out" of respective discussants. Ashleman's testi-
mony included express denials that he disclaimed an in-
terest in lounge musicians or uttered an opinion that their
cause was already lost.
The crisis peaked with a meeting of all concerned par-
ties at the Governor's office on March 25. By this time
intensive mediation was underway as many energies bent
to the task of ending a major labor dispute already
having grave economic and political consequences in the
State of Nevada. As these forces acted to seemingly
assure a settlement of the pivotal Culinary Workers
strike, Campbell spoke to Ashleman saying familiarly,
"Now, Renny, we are only talking about the house or-
chestras . . . not . . . about the lounge." He recalled
Ashleman answering, "That's correct," and the parties
proceeded with arrangements for immediate resumption
of negotiations at the Las Vegas Hilton Hotel. A block
of three adjoining rooms was used there as the parties
carried out urgent negotiations with a classic technique
I Stagehands employed in the entertainment function at NRA hotels
and represented by the International Alliance of Theatrical Stage Em-
ployees (IATSE), were also on strike during this period.
I: He was acquainted with Ashleman, stemming from dealing with him
in a similar role as labor counselor for IATSE.
of separated groupings allowing communication by
chosen intermediaries. Benninger testified that in the
course of all this, he initiated a side discussion with Ash-
leman outlining general terms of a settlement offer con-
templating that any remaining difficulties would be re-
solved between the original bargainers. Benninger denied
that this exchange involved even "one word" about
lounge musicians.
Campbell was attentively present at this critical session
with the Union, testifying that he assisted in identifica-
tion and treatment of the various subjects these parties
were attempting to resolve. As discussion ranged over
such several issues as then under consideration, the sub-
ject of mechanical music devices spurred someone to ob-
serve that occasionally musicians used them in the
lounges. Campbell testified that at this point Ashleman
said, "We have given up on the lounge; you can do what
you want to with them now," and that "nothing whatso-
ever" was said about lounge groups thereafter. His per-
ception of final agreement as to the aspects so in dispute
before was that house orchestra leaders would remain in
the unit, and the NRA would reaffirm the side letter of
April 7, 1973.
Ashleman recalled dialogue between himself and
Campbell at the office of Governor O'Callaghan on
March 25, in which a distinction was voiced about settle-
ment efforts being pertinent only to house orchestras and
not to musical activity in a hotel lounge. Noting that
checklists of problem areas were in use at the time, Ash-
leman agreed that this was the utterance exchanged,
taking it to mean that imminent offers by the NRA in
this pressured situation would apply strictly to main
showroom players. ' Ashleman testified in detail regard-
ing his role at the Hilton. While serving as chief interme-
diary here for the Union, he had a side conversation
with Benninger about lounge players.
Ashleman cast this as exploratory discussion intended
to smoke out the NRA's true resolve in this area. After
Benninger's claim that it was an earnest position Ashle-
man inquired whether serious thought had been given to
his suggestion of about a week earlier that some litiga-
tion forum be a lever on the situation. Ashleman's exact
testimony at this point was:
Q. Did you and Mr. Benninger discuss separately
the issue of the lounge players?
A. Yes, we did.
Q. Did you relay what you and Mr. Benninger
said about the lounge players?
A. I explored with him-and part of this explora-
tion may have been with others present as well,
either Mr. Campbell and/or Mr. Benedict-whether
the Nevada Resort Association at this late hour was
truly serious about excluding lounge players, or
whether that had been a tool or early expression of
3 Ashleman made a pro forma denial of "in any way at that time" in-
dicating that the Union "had abandoned its position with regard to the
inclusion of the lounge players in the new collective bargaining agree-
menit This particular phase of his testimony is surplusage, because
Campbell did not attribute such a literal concession to Ashleman on that
date until the parties had assembled later at the Las Vegas Hilton Hotel.
636
CASTAWAYS HOTEL
intent because some of the organization felt strongly
about it.
The result of that conversation was that ultimate-
ly they said they were quite serious about including
the lounge players if we were going to have any
settlement of this strike at that time. Lounge play-
ers, at that time, would not be included in the con-
tract.
Mr. Benninger and I went on to discuss a number
of issues privately. Among them the lounge players.
On that one I asked Mr. Benninger if they had
given serious thought to my prior suggestion that
perhaps we could resolve the matter by further liti-
gation and further negotiation should the litigation
disclose or should the efforts undertaken legally dis-
close there was no real danger in including them in
the contract.
Q. Did Mr. Benninger respond later?
A. Yes. He responded he was not a lawyer. He
did not know quite how to respond to that, and I
said to him, I said, "Fred, I am asking you to agree
to do what the law would require you fellows to do
anyway. Bill knows about this. All I am saying is
when we can establish, to your satisfaction, that
there is no legal harm in going forward and includ-
ing them one way or the other in the contract, that
you agree to do so, and in that process, whether we
bring a test case or litigate the ones we have or we
exchange memoranda or we get advice from the
General Counsel, that you fellows don't play tech-
nical little kid games with us. Enter into it with
good faith, that is all I am asking you to do."
He said he saw no objection to that, and he asked
if that would put the lounge player issue aside, and
I said, "I believe it will." And then I conferred with
my people.
Q. And then did you go back to Mr. Benninger?
A. I did and we simply went on to other matters.
There was an inquiry of Mr. Benninger later wheth-
er we would put the lounge players aside, as I sug-
gested, and I said, "Yes."
Q. When you say "as I suggested," you are refer-
ring to the suggestion you made?
A. This litigation. Really, post-contract proce-
dure.
In related testimony concerning events at the Hilton,
Ashleman confirmed that reference was made to lounge
application of mechanical music devices, but this caused
him only to remark that lounge players were not "our
instant problem." Relatedly he made an unqualified
denial of having said that the Union had given up on
lounge musicians so that the Employer could do what it
wished with them.
The upshot of these labor-management heroics on
March 25 was that each party behaved as though they
had persuasively prevailed over the other. The recogni-
tion clause of presumed application read, in part:'4
'4 This language is in evidence as rough residue following initialed
changes on a working draft and, with edited phrasing. in the clean draft
advanced by the General Counsel to best represent the agreement alleg-
edly reached within the meaning of Sec 8(d).
2.01. Recognition of the Union. The Employers
recognize the Union as the exclusive bargaining rep-
resentative of all employees employed by the Em-
ployer in the bargaining unit defined in Section 2.03
at their Clark County establishments.
2.02. Definition of Employee. The term "employ-
ee" or "employees" as used in this Agreement
means all persons directly employed by the Em-
ployer to perform as members of a regular house
orchestra, but excluding all other personnel em-
ployed by the Employer.
2.03. Definition of Bargaining Unit. The term
"bargaining unit" means the aggregate of all em-
ployees (as such term is defined in Section 2.02) em-
ployed by the Employer at its establishment.
The Union promptly held ratification meetings at which
Ashleman explained the posture of things from his view.
Members of Local 369 were wary of the unusual de-
ferred aspect under which lounge musicians would "be
included as soon as it was legally made possible," and
ratification did not easily follow. Campbell testified that
he absorbed "common knowledge" of musicians' ultimate
ratification; however, Ashleman contradicts this by testi-
mony recounting a conversation with his antagonist in
which he advised that ratification had squeaked through
on the strength of assurances to members that the lounge
issue was slated for early postcontract resolution. The
days of late March and early April passed with ironing
out of minor language problems and application of pay
increase percentages to the varied ways in which musi-
cians are compensated for services. As this was done
Ashleman, according to his testimony, pressed with in-
creasing vigor to set in motion some preliminary efforts
toward a permanent disposition of the coverage question
concerning lounge players. Ashleman's further testimony
was that this soon polarized a position by Campbell that
unless the Union executed the draft contract no other ad-
justments would be made.' 5
The dispute crystallized most fully in early May when
a thoroughly edited contract draft was ready for signa-
ture and the Union refused to do this. Other factors
highlighted by Campbell were that Local 369 had pub-
lished a wage scale on April 5 and that Foy had written
him on April 20, these two documents reading, respec-
tively, as follows:
"' Campbell had no recollection of the "lounge question" being dis-
cussed in any manner after the meeting of March 25. Beyond the direct
factual conflict involved Ashleman also described having made an alter-
native suggestion to Benninger during activity at the Hilton Here the ex-
ploratory thought was to "negotiate informally" with the MGM Grand
Hotel and perhaps other selected establishments in hopes of achieving"
an interim solution to the lounge player problem." As a practical matter
this would have meant cracking the NRA alliance by clandestine dealings
with key management personnel at the MGM Grand. and use this as an
opening wedge by the Union in beating off the stubborn lounge probhlem
Ashleman does not claim that Campbell was even privy to the idea, and
aside from testifying that it was one branch of his persistence on the sub-
ject Ashleman does not attribute further significance to this facet of
things.
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MUSICIANS UNION OF LAS VEGAS -
LOCAL 369, A.F. OF M.
WAGE SCALES LIST - CLASS "AA"
ESTABLISHMENT
NOTE: EFFECTIVE APRIL 8, 1976, UNTIL
FURTHER NOTICE, the following wage scales
shall apply to all Class "AA" engagements, not
covered by the Collective Bargaining Agreement
between Musicians Union of Las Vegas and Nevada
Resort Association, such as lounges, restaurants,
bars, sky rooms and strolling, etc.
All engagements shall be covered by a "FORM B"
contract filed with Local 369 before start of engage-
ment.
Six hours per day - six days per week. Mini-
mum of 15 minutes per hour intermission.
SIDE-
MAN LEADER SINGLE
PER WEEK 385.25 577.85 577.85
PER DAY 64.20 96.31 96.31
O.T. PER HR. 14.82 22.25 22.25
OT. PER 1/2 HR OR
FRACTION 9.55 14.32 14.32
EMPLOYERS TAX RESPONSIBILITY: 10% or
actual cost.
PENSION: 7% of Scale.
HEALTH AND WELFARE: $11.52 per week -
per man.
VACATION: 2% of Scale.
This letter addresses itself to the subject of musi-
cians performing in your establishment in any musi-
cal capacity other than that of backing a show as in
those cases the "show musicians" are covered by
the Collective Bargaining Agreement.
As you are probably aware Musicians Union of Las
Vegas, Local 369, began negotiations with the
Nevada Resort Industry as early as December 5,
1975 with an expiration date of the then existant
agreement being February 16, 1976.
Throughout the negotiations management main-
tained that neither Local 369 nor the industry had
the right to collectively bargain for the "lounge mu-
sicians." While Local 369 resisted that posture the
result has been that in fact those musicians have
been excluded from the agreement. Offers were
made by the Union to work out an interim agree-
ment so that these musicians would be included
pending resolution by the NLRB (or the Courts) of
that issue. Of course once that determination is
made I am sure the industry would be bound by
and abide by that ruling. However, until that deter-
mination is reached the fact remains that a segment
of musical employment in the Las Vegas area is not
covered by the agreement.
The only alternative available to Local 369 at this
time, based upon the foregoing facts, was to issue a
wage-scale list to cover the conditions under which
these musicians would work. That list was mailed to
you under date of April 5, 1976 with an effective
date of April 8, 1976.
I feel it is important to point out at this time that the
above-outlined issuance of a wage-scale list is as a matter
of fact the universal practice in the music industry as it
relates to hotels, nightclubs, cafes, etc., and collectively
bargained agreements are the exception. The formal Col-
lective Bargaining Agreement was a result of the 1969
negotiations and in fact was proposed by management at
that time. Local 369 acceded to that proposal which has
governed our relationship since that time. Again, up until
now the "lounge musicians" were also included.
It is necessary at this juncture to point out the fol-
lowing facts concerning the issue at hand:
1. Whenever musicians in Las Vegas in the past
have worked beyond the expiration date of any
agreement (formal collective bargaining or other-
wise), all musicians received retroactivity to the ex-
piration date when agreement was reached. Not so
in this case as lounge musicians have not received
same but more important have not demanded same
because of the question of the status of the entire
matter.
2. Whenever an agreement was reached upon
wages and working conditions for "show musi-
cians" those same wages and conditions applied to
all others. Again not so in this case as we have been
advised that your establishment now does not wish
to pay those same wages as has been the historical
practice. NOTE: Local 369 did not try to "sand-
bag" the hotels by issuing a higher scale or more
advantageous working conditions but in fact, with
fair dealing in mind (as is our practice) kept the
scales and conditions on that same parity.
3. Absent a Collective Bargaining Agreement
covering the services of the "lounge musician" the
member musician is obligated under Local 369 and
American Federation of Musicians By-Laws to use
only that form of contract issued by the A.F.M.
which is the Form B2b. The musicians failure to
comply with that provision subjects him to charges
and possible fines through this Local and the
A.F.M. For these reasons, this Local must insist on
the proper filing of the specified contract, by the
musician as is our and his obligation. So that you
will not be misled, I feel that I must call to your
attention that any claim, dispute, controversy or dif-
ference arising from or in connection with any such
contracted musical services must be adjudicated by
the International Executive Board of the American
Federation of Musicians or a similar Board of an ap-
propriate Local thereof and such determination
shall be conclusive, final and binding upon the par-
ties.
Supported by the foregoing statements I am sure it
is clear to you that Local 369 has no other available
avenue of pursuit at this time. It is academic to say
that if these "lounge musicians" were included in
the agreement the wage-scale list and its attendant
conditions would not be necessary.
Certainly we have all just recently experienced a
situation that did not put any of us or our industry
in a favorable light with the work stoppage. I am
638
CASTAWAYS HOTEL
confident neither you nor we look forward to any-
more labor unrest, if avoidable by any means.
Rest assured that we stand willing and are hopeful
to continue the excellent relationship we have had
with management (of which we are proud) over the
45 year history of Local 369.
Additionally, a series of grievance letters signed by fully
authorized assistants to the president of Local 369 were
received by certain NRA member hotels during the
April-July period, one of which was expressly based on
section 10.03 of the putative contract, a second based on
contractual definition (identical as contained in the 1972-
76 agreement) of a "show" and a third complaining of
refusal to pay at "new scale;" for musicians. No signifi-
cant response to any of the writings described immedi-
ately above was placed in evidence, and the entire matter
culminated with cross CA-CB charges filed July 26 and
August 20, respectively. 6
In terms of actual establishments to which this litiga-
tion pertains, both with respect to breadth of employers
affected by dealings of the NRA and as arenas in which
past instances of utilizing musicians may be scrutinized
for the employee/independent contractor issue, the case
caption is a largely appropriate inventory. Further, a cer-
tain time frame must be established, and even within this
numerous variations as to physical size or configuration
of lounges and showrooms, as to management policy af-
fecting the entertainment function, and as to day-to-day
practices of contact with musicians must be comprehend-
ed. In this sense the establishments may be roughly
grouped in two categories. The bulk of evidence relates
to Caesars Palace, Flamingo, Las Vegas Hilton, Sahara,
Tropicana, and MGM Grand hotels. A second grouping,
to which evidence ranging from substantial to slight was
acquired, includes the Castaways, Desert Inn, Frontier,
Sands, Landmark, Circus Circus, Dunes, and Thunder-
bird.i ? Any testimony naming the Union Plaza hotel is
of such insignificance to the issues that it is disregarded.
Similarly, I find insufficient value in any description of
working conditions at the Aladdin and Hacienda hotels,
neither of which remained as NRA members any later
than December 31, 1974. Two other hotels, the Fremont
and Silver Slipper, are shown to have been party to the
1972-76 agreement, but give rise to no need for meaning-
ful attention. The Stardust Hotel is a special case, for
while it terminated NRA membership on December 31,
1974, and was thus not captioned, an extensive body of
relevant evidence was advanced respective as to how
musicians were utilized for lounge play there both before
and after that date.
As would be self-evident, the hotels provide lodging,
food and beverage service, entertainment, and gambling.
1' On October 18 Union attorney Dennis M Sabbath filed an RC peti-
tion covering NRA member hotels in which the unit sought was "all mu-
sicians engaged to perform at NRA member hotels excluding all house
band musicians independent contractors and superviiso." This petitiion
was ultimately withdrawn as reflected in final approial given rioutinely
by the Regional Director on February 28. 1978
" The Thunderbird ceased operations January I. 1977, while Circus
Circus appears in the record primarily to contrast its unique aerial and
specialty performers from all other Las Vegas strip resorts in which some
traditional form of music-backed (or based) enterlainment was used
With minor exception the hotels offer a main showroom
(MGM Grand has two) in which a permanent house or-
chestra backs famous star attractions or production
shows as the case might be. ' Beyond this, any remain-
ing entertainment is arranged for lounges, both open (to
the casino) and closed, or by circumscribed movement of
strolling musicians. In all instances the object is to create
excitement, interest, and pleasure, all calculated to con-
tain patrons inside the establishment as gambling pros-
pects. Toward this objective musicians are to entertain as
self-contained groups, as combinations backing comedy,
review or specialty acts, or as single performers such as
a piano player. Entertainment responsibilities within a
hotel may emanate from general managers, from enter-
tainment directors, from entertainment coordinators,
from house orchestra leaders or from any person of set-
tled alignment with such authorities, and who contract
for musical services on behalf of the establishment. An
accepted time frame for assessing the meaning of how
musicians manifest themselves in the hotels was the
period 1973 through to the strike that commenced
March 10 (1976).
Frequently the lounge areas have distinctive names,
often in reflection of the particular hotel's image. During
the representative period Caesars Palace maintained
Cleopatra's Barge as a stylized open lounge, and for a
portion of this time also offered musical entertainment in
the elite Palace Court. As to the Hilton properties, the
Trophy Lounge was found at the Flamingo, while the
Las Vegas Hilton had a Benihana Room and Vestal
Virgin Lounge in which dancing was featured. The
Sahara offered diverse attractions in its Casbah Lounge
and Don the Beachcomber Room. The Tropicana oper-
ated the Blue Room and a Casino Lounge, in assertedly
awkward efforts to gain clientele.' 9 Conversely, a thor-
oughly planned array of sophisticated lounge areas exist-
ed at the MGM Grand, the foremost of which, the
Lion's Den, was scaled as a small showroom suitable to
the greatest number of performers that could still be
deemed lounge entertainment. 20 A Cub Bar also has
been operated continuously there, open to the casino and
in which ordinarily singles, duos, or trios perform. Final-
ly, an open Parisian Bar at one corner of the MGM
Grand's casino floor has regularly featured Sacha Se-
menoffs Romantic Strings, a group of strolling musicians
who also circulate into and through the adjoining gour-
'" I term the house (oir "main show(") orchestra "permanent" as a rela-
live matter. for even here the situatiion is often fluid Hotels actually es-
lablish a hasic number of orchestra seats and augment this with more mu-
sIcians oin specific or indefinite bases geared to needs of their central en-
tertainment policy Further, the regular orchestra conductor may be sup-
planted by a particular performing star, or this may occur with respect to
given instruments What is consllant is the technique of contracting for
main showr(oxm musical accompaniment by use of a Form "B" contract,
upon which the orchestra leader runs the aggregation and distributes
their earnings.
"' Paul Lowden keybhoard musician turned resort entrepreneur. tesli-
fied that while a minority owuler and gambling licensee of the Tropicallna
the establishment was "in a terrible ciondltion" run "dlsorganlzedlyl]''
with "panic management " Lowden's Las Vegas career is a varied onel.
and refcrence will repcatedl) appeilr to his testimony about practice, in
several cstablishments
"' Ihis area was clsed il 1975. simply giv lng way to enlarged gam-
bling facillitlcs on the casino flolr
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
met restaurants. This specificity is not to imply that
other hotels were without popular lounge areas, only
that the ones described were among those most frequent-
ly appearing in testimony.
Ordinarily lounge performers were chosen from acts,
entertainers, or musicians known or believed to be avail-
able for such endeavor. This knowledge was part of the
stock-in-trade possessed by entertainment directors, or
persons fulfilling their function. The selection process
could be assisted by brokering of managers or agents,
while at other times aspiring acts provided promotional
material to a hotel's entertainment office and not uncom-
monly word-of-mouth or friendship bonds sufficed to
locate needed persons. A standard approach once con-
tact was made and auditioning completed was to mutual-
ly execute the form "B" contract. Theoretically this was
to be repeated as successive option periods were picked
up, however the practical working mode in some in-
stances was to file a completed form "B" with the Union
at inception of the engagement and informally define the
engagement's full scope thereafter. 21 A standard expecta-
tion of what the form "B" usually called "house policy"
was to play several sets of music over a 6-hour period.
Often these were rigorously scheduled in terms of the
letting-out time of main showrooms, or in terms of alter-
nating acts performing throughout the night in given
lounge areas. The musicians engaged in this general
manner were expected to provide their own instruments
and to rehearse as necessary for most appealing sound. 22
Utilization in this manner, whether thought of as occa-
sional, sporadic, off-and-on, flexible or indefinite, differed
considerably from traditional personnel policies as ful-
filled at the hotels for regular culinary, housekeeping,
casino, and other employees. As to these, the parties stip-
ulated (without permitting any inference either way that
the content did or did not apply to musicians) that at all
relevant times the NRA employer-members "adhered to
the following personnel policies, practices, and proce-
dures:"
1. Applicants for regular employment, whether re-
ferred to a hotel from a union hiring hall or as a direct
applicant for employment, were processed by the hotel's
personnel department, or the equivalent thereof.
2. Applicants for employment were required to com-
plete a standardized employment application form which
requested certain information, including personal data,
educational background and previous work experience.
3. Upon completion of the application form, all appli-
cants were interviewed by a representative of the person-
nel department who thereafter made a determination as
to whether the applicant met the minimum qualifications
for an available position.
4. Once it was determined that an applicant might
have been qualified for an available position, he/she was
21 Most compensation was at scale as set forth in the collective bar-
gaining agreement Where a musician's particular ability warranted, a ne-
gotiated overscale rate was expressly staled. Additional earnings could
result from "doubling,'" or the play of more than one instrument. Paying
below scale was forbidden by the collective-bargaining agreement and
was never attempted by any hotel
22 Sound amplification equipment and lighting was often in place on
the lounge stage or could sometimes he borrowed from an alternating
group. The same applied to percussion items and pianos
referred to the manager or supervisor for whom the
person would be working or who was in charge of the
department in which the person would be working. That
individual, either alone or in consultation with other
management personnel, made the final determination as
to whether the applicant would be hired, and would go
notify the personnel department.
5. All newly hired regular employees were required to
fill out relevant insurance and tax forms and to supply
additional information to the hotels.
6. All regular employees of the hotels were supplied
with copies of the various hotel rules and regulations
which pertained to them. These rules included standards
of personal conduct and grooming and prohibited em-
ployees from drinking or gambling during working
hours.
7. All regular employees of the hotels were issued an
identification badge or card. Some but not all of the
hotels required that employees wear a badge at all times
during working hours. All of the hotels required that
employees keep some form of hotel identification on his
person at all times during working hours.
8. The personnel department of each of the hotels
maintained a centralized personnel file with respect to
each regular employee. This file contained the employ-
ee's application form, any relevant insurance documents,
any warning notices which the employee might have re-
ceived, and documentation of any change in the status of
the employee, such as job positions, wage rates and
leaves of absence.
9. The number of hours worked per day and week of
all nonsupervisory and nonexempt hotel employees was
monitored by each of the hotels, either by way of a time-
clock, sign-in and sign-out sheets, or some other monitor-
ing device.
10. All employees were carried on the hotel's central-
ized payroll records and were paid from the payroll ac-
count on checks issued by the payroll department.
11. All nonsupervisory or nonmanagement employees
of the hotels reported directly to a supervisory or man-
agement employee of the hotel.
12. Each of the hotels requested that all employees of
the hotels park in designated areas in the hotel parking
lots.
13. All employees, except for certain front desk and
executive office employees, entered the hotels through
entrances designated as employee entrances.
14. All employees of the hotels were required to pos-
sess a sheriffs card issued by Clark County and to
submit evidence of that card to the hotels.
15. The hotels made contributions for all regular em-
ployees for required Federal and state employee insur-
ance programs, such as workemen's compensation, unem-
ployment compensation, and social security. The hotels
also withheld all required state and Federal taxes from
the pay of all regular employees and submitted those
taxes to the relevant governmental agency and submitted
documentation of this to the employees at the end of the
calendar year. The hotels also made all other authorized
deductions from employees' paychecks.
640
CASTAWAYS HOTEL
All that is written above serves to frame the two issues
calling for resolution. The first of these is, narrowly,
whether a claimed pair of what would be related utter-
ances were made by Ashleman as to lock Local 369 into
a commitment on a 4-year contract covering all non-
lounge musicians throughout the Las Vegas strip hotels.
The second issue is whether, from the sweepingly diver-
sified fashion in which musicians are utilized at hotel lo-
cations properly viewed as an entertainment lounge, an
employee status or an independent contractor relation-
ship is ordinarily present. As to the second issue, the
Union concedes variations may be so extreme that it is
not contending each and every musical engagement cre-
ates the employer-employee condition. This is clear from
Ashleman's testimony in which he recounted conversa-
tional exchanges with NRA bargainers during which he
explained that the Union was "not claiming that every-
body at all times. . . had been an employee."
On the first fundamental issue I am persuaded to
accept Ashleman's version of the facts. While demeanor
grounds provide some weight, primary influence is
rooted in the inherent probabilities that are present from
the general background and particular dynamics of the
1976 (as commencing in December 1975) bargaining. A
stable form of well-entrenched lawyer-client relationship
amply equipped him to sense the crucial need for contin-
ued solidarity between the rather permanently engaged
house orchestra musicians and performers who by choice
or circumstance were destined for the more Bohemian
lounge career. Secondly, this was precisely the resolve of
Local 369 members as they vividly reemphasized this
solidarity to their representatives as negotiations increas-
ingly pointed towards serious impasse on the point. Fi-
nally, the weight of tradition favored the Union, in the
sense that lounge musicians had been treated as though
within the coverage of earlier successive collective-bar-
gaining agreements.
In this setting Ashleman first made a specific legalistic
proposal to Campbell, one that required careful listening
to glean the artful condition which was attached. I am
satisfied that Campbell failed to perceive Ashleman's
words as an exploratory approach, and that dealings
thereafter were muddled by this failure of communica-
tion. A complication soon arose when Ashleman spoke
with Benninger after commencement of the strike, think-
ing that his words would be taken in furtherance of what
he had earlier tested out with Campbell. On the sharply
contradictory versions of whether Ashleman had resign-
edly conceded lounge musicians away, I discredit Ben-
ninger on grounds that his memory is too suspect as to
this point. Admittedly he had occupied himself principal-
ly with culinary negotiations, and I believe that com-
pared to Ashleman his testimony is both confused and
tainted with partisan suggestiveness. As contended by
the Union, his perceptions are questionable when it is
seen that he misstated even the physical configuration of
bargaining as the parties deployed at the Hilton hotel for
their final efforts. The actual lack of awareness on the
point between Benninger and Campbell left them individ-
ually and collectively unable to fathom Ashleman's fur-
ther remarks on the subject of lounge musicians as the
parties were goaded by the state's highest political
figure. Relatedly therefore, I discredit testimony of
Campbell attributing the notion of abandonment to Ash-
leman. 23 I believe instead that Ashleman's actual re-
marks along this line were, as he claimed, nothing more
than refinement and reaffirmation of his earlier sugges-
tion which Campbell, flustered by urgency of the situa-
tion and his supplantation by the authoritative Benninger,
eagerly albeit erroneously took to mean that the knotty
issue of lounge musicians was marvelously conceded in
NRA's favor. No doubt one in Campbell's position
would wish for such legerdemain. However the hard
truth of the matter is that it was never intended or objec-
tively expressed, and the earlier acknowledgment by
Ashleman that crisis bargaining under political auspices
was confined to house orchestra musicians meant only
with respect to immediate strike settlement proposals but
without impairing the condition he had effectively at-
tached to overall efforts at contract resolution.2 4
2a This choice is supported by the circuitous concession in Campbell's
testimony to the effect that esen up to March 25 Ashleman was "insisting
upon some form of coverage for lounge musicians."
24 It is fully evident that local newspaper coverage of this community
crisis. apart from its accuracy or inaccuracy. reflected the monumental
concern of affected interests The follos ing excerpts illustrate this
COSTLY STRIP STRIKE ENDS
Technical Changes Stall Bargaining
A contract insuring four years of labor peace on the Las Vegas
strip was agreed to Thursday. marking the end of a two-week strike
The 14-day walkout which resulted in mass arrests of pickets and
the closure of 12 major Las Vegas hotels was resolved during mara-
thon bargaining sessions over which Gov. Mike O'Callaghan pre-
sided and in which principal resort owners participated
Only the formality of writing terms for the stagehands and musi-
cians unions. together with a few small language changes remain, but
no hitch is foreseen
meetings took place in the State Building. with proposals and
counterproposals going back and forth between the parties through
Wednesday night and early Thursday
Throughout. the governor insisted that disputes with Musicians
Local 369 and Stagehands Local No 720 be forged in the same ne-
gotiations Hardly had culinary negotiators agreed to submit a pro-
posed contract to their members, when musicians and stagehands ne-
gotiators filed into the executive officers (sic) to begin new rounds of
talks
It took most of Thursday to arrive at agreements satisfactory to
the stagehands, wardrobe personnel and musicians and thus end the
longest and most expensive strike in the history of the Nevada
gaming industry. (Las Vegas Sun, Friday, March 26, 1976. pg 1)
HOTELS PLAN OPENINGS
The hotels affected by the 15-day-old service workers strike on
the Strip prepared contingency plans Friday for reopening over the
weekend as an announcement of the end of the strike appeared immi-
nent.
Continued
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I recognize that grievance correspondence thereafter
alluded to sections of what would have been a new col-
lective-bargaining agreement, but dispose of this on the
basis that such writers on behalf of Local 369 were using
the document as a guide in their labor-management deal-
ings and were without power to dissolve the overall ten-
tative nature of how matters then stood. Furthermore,
the wage scale list dated April 5 and Foy's subsequent
letter are consistent with this holding, for taken together
they constitute a nonlegalistic effort to transfer the com-
pensation increase calculated as to nonlounge players in
an Appendix A (to have been effective through February
15, 1977) for lounge musicians as then conceptually "not
covered" by the contract (certain differentials in pennies
disregarded). A pertinent phrase of Foy's rambling,
plaintive letter referred to "interim agreement," certainly
an expectable layman's term for Ashleman's intricate de-
velopment of a useful, but conditional, set of economic
and noneconomic understandings for main showroom
musicians, while matters awaited further resolution as to
their lounge play colleagues and fellow unionists. The
significance that emerges is that, for 8(d) purposes, the
Union has not refused to execute an agreement reached
because a major feature remains subject to an unfulfilled
condition subsequent. See American Linen Supply Compa-
ny, 235 NLRB 132.25
The issue of lounge musicians' status resolves as a
matter of law. There can be no quarrel with the funda-
mental pertinent test which has been repeatedly stated
with clarity. In a recent reiteration the Board wrote:
In determining whether individuals are employ-
ees or independent contractors under the Act, the
Board has consistently applied the right-to-control
test. Under this test, an employer/employee rela-
tionship exists when the employer reserves the right
to control both the result to be achieved and the
means to be used in achieving it. When, however,
the employer reserves only the right to control the
result to be achieved, an independent contractor re-
lationship exists. The test requires an analysis and a
balancing of the facts in each case. [City Cab Com-
pany of Orlando, Inc., 232 NLRB 105, 107 (1977).]
The lounge musicians appearing in Las Vegas strip
hotels have long and consistently been used in a context
An NRA spokesman confirmed the "progressive talks" were un-
derway and said unions all agreed settlement of the culinary bartend-
er contract is dependent upon the association settlement of contract
disputes with Local 369 of the Musicians Union and Local 720 of
the Stagehands Union.
Management and union officials emphasized the "extremely sensi-
tive stage" of the negotiations and said no details of any tentative
agreements would be disclosed to the public. (Las Vegas Review-
Journal, Friday, March 26, 1976 (Evening Edition), pg. I.)
"a This entire branch of the case has diminished meaning for practical
or remedial purposes. By now the contract, even if elevated to control-
ling status, would have scant months to run The anticipation from this is
that an entirely fresh approach to bargaining would soon he required for
matters as to which either party has come to desire change over the in-
tervening period of more than 3-1/2 years. This observation is without
reference to the separate independent contractor issue
of settled obedience to the desires of management. The
labor organization serving as their representative in deal-
ing with the resorts has secured written affirmation ex-
tending back nearly 20 years of their status as employees.
The form "B" contract, which is controllingly evident
both in number and scope throughout the NRA member
establishments, plainly reinforces this relationship in lan-
guage that could hardly reflect a more positive, mutual
indication of the master-servant tradition. 26 The vari-
ations involved in what individual executes a form "B"
on behalf of the person or group offering services is im-
material, for again plainly the hotel deems itself the party
causing a utilization of particular talents as an adjunct to
its fundamental business purpose. 27 Thus an overwhelm-
ing number of all persons performing in show lounges
during the measured period were in an employment rela-
tionship to the resorts. However, in addition to this con-
sequence, a detailed seriatim treatment of the customary
factors weighed when independent contractorship is the
issue, affirms the conclusion still further.
The most telling indicator of all is a diverse number of
instances in which true control was exercised over means
of performance. 28 It is well to reflect here first on the
essential service being provided by musicians in the
midst of excitement, glamour, and moneyed doings all as
found in a typical Las Vegas resort. The professional
musicians contribution, whether as house band or lounge
player, is peripheral, ethereal, and expendable. In this
sense the performer is vulnerable, which may explain the
ambivalence of the Union in seeking to preserve its
broad collective-bargaining base while still clamoring for
the side letter as showing some spark of occupational
independence. However this very document, upon which
so much attention was focused, was also meant to apply
to house band members and in any event should be read
with emphasis on the word "directly" and not on
"employ." This is because the side letter is really only
26 I credit the testimony of Lowden that sporadic use of a "personal
service contract" at the Tropicana was but a stratagem to weaken the
Union's influence. Furthermore, the "Contract for Musical Services" fre-
quently used by Hilton properties in Las Vegas was a less bold effort to
skirt the collective-bargaining agreement, and in fact that documents, as
exemplified in the contract covering the long-playing Rich Bono Duo,
was couched in terms of being:
. . subject to all of the applicable provisions of the labor agree-
ment, and any provision of this contract, form "B" contract, or per-
sonal service contract contrary to or prohibited by the express terms
of the labor agreement shall be of no effect. [Emphasis supplied.]
27 The notion of using "professional" (or "Professionalism") as a
catch-word to denote a person or class of persons that are not in a true
employment relationship with an employer is absurd Under the Act
"professional" is statutorily defined in a context of presuming that such
individuals would be employees (Secs. 2(12) and 9(b)). The entire thrust
of the "professional" concept is really one of nomenclature and cultural
perception.
2u Upon assessment of the entire case, I am puzzled over the excessive
attention given by all parties to the matter of how lounge musicians come
to be engaged for the work. Given the glib, flip, fast-paced nature of the
industry, and the unusual personalities who surface as part of the enter-
tainment picture, I definitely downgrade any significance to the manner
in which musicians are located. The more important aspect would seem
what they do once the schedule is underway, for the activity prior to
that bears no real difference to instances in which, for mundane occupa-
tions, hiring halls, temporary service employment agencies, classified ad-
vertisements of "services offered," or other avenues of personnel recuit-
ment are used
642
* · ·
CASTAWAYS tHOTI'L
cosmetic as to the realities involved; a comforting re-
minder of musicians' self-regard among the buffeting ab-
sorbed, as the record shows, from hotel management, en-
tertainment office personnel, casino bosses, spouses, or
special friends of the well-placed, temperamental artists,
esteemed customers, and others. These lounge players
are not within the mainstream of resort operations;
indeed are consigned to nonprofit centers where their
talents may be amiably plied for random enjoyment of
house patrons. They perform openly, detached from
most flattery bestowed by customers on both famous and
unfamous entertainers, and available for slotting into
needful assignments both spontaneous and as specially
scheduled.
One of the instructive episodes involved drummer
Joey Preston, who credibly described how Caesars
Palace former Musical Director Nat Brandwynne (now
deceased) routinely shuffled him from house band per-
forming to play on Cleopatra's Barge as the occasion
might demand. 29 Were this not enough to destroy any
notion that such a person as Preston had independent
control of his occupational destiny, the practice even in-
cluded sending him to the Thunderbird hotel, at the time
a sister establishment of Caesars Palace.
A more pervasive example is that shown in testimony
concerning the Romantic Strings group, which was en-
gaged for many months during the period in litigation to
stroll a lounge and related area of the MGM Grand
hotel. Here the ubiquitous Bernie Rothkopf, executive
vice president, was verbally reprimanding toward group
members, authoritatively directed its costuming and
musical choice, mediated artistic and scheduling conflicts
between the group and supporting stroller Eddie De
Santis and commanded the group into unpaid leaves of
absence (vacation) status in a manner no different from
ordinary plant shut down in the manufaturing sense. 30
At the Summa Corporation properties generally it is
clear from the testimony of Sandshotel Entertainment
Director Joseph Mall that corporate Entertainment Di-
rector Walter Kane both possessed and exercised control
over the manner of performance by lounge musicians.
This is evident from conceded instances of Kane direct-
ing groups as to type of music to be played, elimination
of particular songs and "tell [ing] a leader how to im-
prove the performance of an engaged group." This
factor dovetails with the experience of musician Rich
Bono, who prior to his extended Tropicana engagement
2I Brandwynne's stature in the Caesars Palace hierarchy was con-
firmed by an ongoing authorization, signed in 1972 by Entertainment [)i-
rector Sydney Gathred, which authorized the designee to "sign any and
all contracts involving musicians to he used at Caesars Palace."
30 By letter dated November 28, 1975. Rolhkop's secretary, Ursula
Nelmes, advised Semenoff that the Romantic Strings were to commence
a "temporary lay off" of 10 days (soon after an extending option was
picked up) during the coming holiday season. This type ot employmnent
control is also shown by an instance affecting musician/entertainer Itill
Kaufman who performed a substantial portion of each year in the Win-
ner's Circle Lounge of the Frontier hotel. On the occasion orf his group's
singer being temporarily ill, the hotel docked part of the contracted com-
pensation due to her. This episode vividly demonstrates how the claimed
integrity of a "self-contained" group could be readily pierced by routine
reaction of an employer to the situation of an individual not showing up
for anticipated duty Conversely, entertainer/musician Dave Burton ac-
cepted his entitlement to a 2- eek annual vacation per the collectlive-har-
gaining agreement during his 2-1/2 year engagement at the Thunderbird
played at lounges of the Landntark Hlotel in 1974 (then a
Summa property), and was freely moved between rooms
while told by Mona liloomer that estahlishment's enter-
tainment coordinator what jazz/"top 40"/counlr'y and
western sound to achieve at each location. A significalilt
illustration of close control spelling employee status
arises from testimony of Anthony Osiecki, a trombonist
hired by Hilton properties Musical Director Joseph
Guercio to perform as a side musician in the l.as Vegas
Hilton's Benihana restaurant. While here he was paid off
the house orchestra payroll account of conductor James
Mulidore, and performed under working conditions sitii-
lar to that aggregation, except as to the number of per-
sons making the music.
Leonard Martin was entertainment functionary by
virtue of a vice presidency at the Sahara Ilotel al matelti-
al times prior to the strike. The picture formed lIfltet
credible testimony of drummer 'I'holilas Quigley is tlIiat
contrary to NRA contentions, Martin formed a group of
musicians for specialized entertainmenlt in th;l establish-
ment's Casbah Lotnge. I distinguish this act of conslitut-
ing an effective assemblage of musicians from lie ccruit-
ment-oriented function which I earlier found of liiltCd
evidentiary value. Also, this portion of nmy cotlclusiou in-
volves the corollary of discrediting NMartin's testiollly ias
an unreliable, self-serving attempt to conceal his aictuall
role in fostering this particular lounge engagement Luig-
ley also credibly described being part O(f a relief hand
playing a Sahara hotel lounge which Malrtirn excused
from any remaining sets of music on a dull evening upon
condition that the group "livenl up" a golf tourniamint
party.
Also germane to this phase of the a.'alysis is the flur-
ther persuasive testimony of Lowden to thie ffect thlt
lounge musicians at the Tropicana during Iie approxi-
mate period of years 1974 75 wcrc diriclted inl tleir lc-
hearsals and staging planis by one .;Lar I .cc, upon as-
sumption of the entertainmlent director psition tichere ill
the footsteps of his fattier."' Corrobolratiol of tilts is
found in testimony of Bono, who also tlcscribed Ctiplo!
ee-like dealings with Larry Lee respectinlg the play ol
background music during auditions of others, assignment
to the musical backing of singers, and the scckinig of per-
mission before arranging for a substitute whIlien pcrsonally
absent. Further, the length of Bono's engagentll en t the
Tropicana (in tandem with his pla)ying partnler R.ialli
Pollack as completing the locally knownl duo) is strongly
suggestive of an employee relationship. '2
These specific and credible incidents ale lnol Loiticlte
acted by the generalized testimony giVeIn hb, xarious cUl-
tertainment directors. These individuals ttescritbd adntin-
istrative roles touching office routine, alditliiolitin and at-
tistic evaluation of entertainment in progress l'lle set
tings varied from the structured entert;linlici function
a Lowden also credihly recalled a.pproilg lt dsillO, il,: i th
choice of sidemen and sendinlg premier h(orn players I ,i ic mll h l ,1x
room to a loulige when better slntid rltl s I m tl' . i ,l illc. st.lklct tmlr
ring at the Fl.lniingio while he wvas hous-e Ilild tl.' lcdt tI 'ri
2 Ihls factor a lso obtained iti Ic Dhunmcl ' h.. tl t' ',-,l 1 Llit tI
forminlg for 5( or ltir i cek' t, l C' s ta l s'.ih , r l , ' t ' .i., dn/., 1
string players anid hby a harpist .t than 'StJabahlIsTiire SU]t 1,,t '[I I
lartont iiand Dnome of the S.a re.iiiurmit. reoo s. p el, ,
(,4
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Hilton and Summa properties, as testified to by Enter-
tainment Director Dick Lane and by Mall, respectively,
across to the informal "hip-pocket" style of management
exhibited by Rothkopf. Of the six witnesses in this cate-
gory, as to whom the Association pins much of its case,
the remaining three are even less worthy of considera-
tion. Sidney Gathrid had but slight dealings with lounge
musicians, while Leonard Martin, erstwhile entertain-
ment official at the Stardust Hotel and more formally
such at the Sahara, did not present as a witness of accu-
rate recall or one who could credibly contradict specific
episodes of control and direction over lounge musicians.
Finally, Alan Lee, former entertainment director at the
Tropicana, is utterly unconvincing as one likely to shade
the truth when suiting his purpose.
On this key issue I reject or distinguish all primary
contentions made by the Association. Independent con-
tractor status typically turns on unique factual circum-
stances, and in this sense legal precedent is of limited
value. As among authorities cited by the NRA on this
point, I comment only on Strand Art Threatre, Inc., 184
NLRB 667 (1970). Superficially this case seems analo-
gous in that performers there worked under engagement
contract (extended into several option periods), devised
and presented their own style of entertainment with self-
supplied costumes, makeup and props, absented them-
selves from the engagement during an otherwise 1-1/2
year period at issue, and were governed only as to the
length and not content of their act. In this situation the
Board found independent contractor status, noting in the
process that ordinary withholding deductions were not
made from the entertainer's compensation. I distinguish
Strand Art basically because of the unstructured business
context in which it arose, and the indication of personal-
ity conflicts distorting the usual interplay between the-
ater management and those who perform in the field.
Furthermore, the Board expressly noted that the peculiar
factors as were involved left language of the "form con-
tract" not reflective of the actual "day-to-day relation-
ship." Thus, contrary to the Association's view, the lead-
ers of lounge musicians are not "entrepreneurial," but
merely present certain of the trappings which surround
the entertainment industry. Perspective is an important
factor in assessing realities of the case. I have already al-
luded to glittering sophistication that appears to the
resort customer. Such ostentation is foreign to the ordi-
nary surroundings of a workplace, whether it be the pro-
verbial factory, shop, or office. In human terms this
goads people into styles of showiness and artificiality
that must be evaluated on the same plane. From this gen-
eral theme of things one can better assess such phenom-
ena as stylized group names, professional payroll ac-
counts, distinctive group costuming, ambulation of
groups to other resort or metropolitan centers, ingenious
strivings for marquee value and reverence for one's
group leader to the extent he or she manifests perma-
nence. The assessment must necessarily summon out
some skepticism as to self-appointed importance, and
must emphasize that in the last analysis the individuals
over which this controversy pertains are endeavoring to
make a living in the chosen discipline of nocturnally dis-
played musical talent. Illustrations in the record of col-
lateral investment by leaders range from the few dollars
spent on sheet music by Semenoff to miscellaneous cos-
tuming purchases and the $100-per-week publicist paid
by entertainer/trumpeter Perfecto Mangual as he sought
to enhance his reputation while fronting a musical group
(with vocalist) during an intermittent 2-1/2 year stint at
the Desert Inn. In most cases the expenditures shown are
of insufficient significance and the highly motivated
Mangual, at best, manifests only an instance of joint em-
ployership with the hotel in which he played. Cf. Young
& Rubicam International, Inc., 226 NLRB 1271 (1976).
See also American Federation of Musicians (Harrah's
Club), 178 NLRB 707 (1969), in which it was held that
star entertainers employing musicians were themselves
independent contractors when they traveled "nationally"
and spent "thousands of dollars" on uniforms and "large
sums" on promotional material, respectively.
No true element of risk is involved as to group lead-
ers, any more than for persons of any occupation who
opt to work or not work on sporadic bases of their own
choosing. This factor is even more pronounced for side
musicians, as these performers function a full step re-
moved from the leader. The form "B" contract expressly
denominates the leader as an agent of the establishment,
and which through plain and connected language re-
serves all usual powers over the musician's performance.
The various makeweight arguments, themselves quite
amorphous because of disparity in policy between hotels
or because of relaxed enforcement at various periods of
the time frame, touching on automobile parking prac-
tices, resort entranceways used, access to employee
eating areas,33 absence of traditional personnel process-
ing, manner of regulating loudness by authoritative
casino managers, handling of requests for particular
musical selections and institutional disinterest in musician
department (excepting if extreme or indecent) are not in-
dicative of a statutory independence from the employer's
retained right of control. Similarly the matter of musical
instruments being, for the most part, owned and there-
fore supplied by the players is unavailing. The analogy
here to a worker's personally owned hand tools is all too
evident. Manner of payment to lounge musicians, an-
other factor relied on by the NRA, is inconsequential to
the issue, particularly because house orchestra employees
are compensated through a similar procedure. The NRA
argues that leaders "retained complete control over com-
position of their groups [as well as] content and details of
their groups' performance." However this is belied both
by the form "B" contract terms and the collective-bar-
gaining agreement in which, undifferentiated as between
a house or lounge musical leader, such person is bes-
towed with the express function of carrying out an em-
ployer's instructions as to musical selections and manner
of performance.
The NRA argues further that suspiciously few con-
crete instances of overt control were testified to, and
that only a tiny fraction of all lounge acts booked into
the larger resorts during the period studied were backed
by musicians other than within a self-contained group.
:3 Even Bono described unthwarled use of employee cafeterias
CASTAWAYS HOTEI
The short answer to this is that right not exercise of con-
trol is the governing consideration. In this sense the testi-
mony of Don Burke (leader on the occasion to be de-
scribed), read in conjunction with that of musicians
Walter Mann, 34 Edwin Boyer, and Jack Montrose, viv-
idly illustrates such control as these persons, with others,
were assembled by MGM Grand management to back a
Bobby Rydell act at the Lion's Den Lounge in Septem-
ber 1975 and to adopt rigorously to Rydell's style of
music (with payment forthcoming from the house or-
chestra account). As to further specifics, I decidedly
credit former singer Diane Eddington over the farcical
Joe Zito, with respect first to whether he was an accept-
ed manager of her group while it performed at the
Desert Inn, and secondly whether, as she convincingly
described, entertainment coordinator Bonnie Hays once
presumed to change the composition of a lounge group
there.
Overall, I believe the industry mounted an ill-con-
ceived effort to trim back Local 369's influence by seek-
ing to carve away lounge musicians as a component of
the group being represented. 35 This was fully resisted by
the Union, and I am convinced that the historical unit
should continue. Such tampering cannot be lightly re-
garded, and would require the clearest justification
before such a startling severance were to occur.36 The
"4 Mann was also the leader of a small hacking group assembled
around November 1975 for Cleopatra's Barge entertainment by Brand-
wynne. During this engagement headliner Joe Renteria petulantly forced
out the original drummer of the group, and Brandwynne hastily arranged
the replacement
35 The practice of lounge group leaders "cutting" paychecks for side-
men, making remittance reports. billing hotels for compensable extra
items and often maintaining accountancy services for such purposes is hut
a ministerial role rooted in tradition and confirmed in the successive col-
lective-bargaining agreements of the industry here Notably this practice
is also found as to house orchestra leaders. a factor tending to show
common interests among musicians regardless of where they ordinarily
play within a hotel.
3J There is no significance here to the 8(e) cases which Campbell testi-
fied were troubling to him during past negotiations Contract language on
insulation from routine personnel office jurisdiction of
both house and lounge musicians, the generally accepted
application of house rules to both groups, the inter-
change which can occur between these functions, and
the expressly retained right of control over tasks and
particulars of performing musical services impels me to
find that an "all musician" unit is, as was alleged in the
General Counsel's ultimate refinement of pleadings, the
appropriate one. See Crestwood ,lauto Supply Company,
240 NL.RB 826 (1979), where Board-adopted language
alluded to "successive three-year contracts" sufficiently
defining a unit as objectively "understood by the par-
ties."
More than anything else, this case serves to reorient a
neglected collective-bargaining relationship. Over many
past years the parties consistently veered away from a
direct, tough-minded resolution of their respective con-
flict laden ideologies. The upshot left much to repair as
an instance of tormented labor-management interplay. In
that sense an unequivocal declaration on the lounge mu-
sician issue will impart the fullest possible influence on
the situation as the parties poise for 1980 and beyond
Accordingly, I render as conclusions of law that the
NRA, by refusing to bargain with the Union respecting
persons performing as lounge musicians in its member es-
tablishments, has violated Section 8(a)(5) of the Act, but
that the Union has not violated the Act as alleged.
[Recommended Order omitted from publication.]
the poin t o and through the I72-71 document wa, arguahls illolati\i. a
matter tacitly' concedcd by AhlilcTi s chen he ternimed such language a;s
"hasing quitea fe1 w problems sith iti" IEen assuming the sort in thi,
regard. such misguided effoirts Xt iasuring all area islanldaril fir musicians
has no effect o)i the appropriatcncss of a unit. particularl sih ithe his-
torical stahility ,If this onlle C'f lo . l ' tfiar -h .uundtr, & (?'claiing (,.
168 Nl.RB 217 (Ift7)
645