Chicago Federation of Musicians, Local 10, Etc.

National Labor Relations Board - Board Decisions

Jun 17, 1965

153 N.L.R.B. 68 (N.L.R.B. 1965)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively, upon request, with the above-named labor
organization as the exclusive representative of the employees in the above-
described appropriate unit with respect to rates of pay, wages, hours, or other
terms and conditions of employment, including the use of male knitters.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
ONEITA KNITTING MILLS, INC.,
Employer.
Dated------------------- By--------------------------------------
(Representative) (Title)
NOTE.-We will notify any above-named employee, if presently serving in the
Armed Forces of the United States, of the right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they
have any questions concerning this notice or compliance with its provisions.
Chicago Federation of Musicians , Local 10 , American Federation
of Musicians and Shield Radio & T.V. Productions, Inc. and its
agent Martin M. Rubenstein and Harry Hawthorne . Cases Nos.
13-CB-1466 and 13-CA-5695. June 17,1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondents had not engaged in the alleged unfair labor practices
and recommending that the consolidated complaint herein be dis-
missed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the Respondent Union,
the Charging Party, and National Association of Orchestra Leaders,
as amicus curiae, filed exceptions to the Trial Examiner's Decision
and briefs in support thereof. The Respondent Union also requested
oral argument.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
'Because in our opinion the record, exceptions, and briefs adequately set forth the
issues and positions of the parties, this request is hereby denied.
153 NLRB No. 11.
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 69
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its entirety.
a In finding that Respondents have not engaged in the unfair labor practices alleged in
the consolidated complaint, we deem it unnecessary to pass upon the Trial Examiner's
finding that orchestra leaders in the single and steady engagement field, when performing
as leaders, are employers within the meaning of the Act; nor do we reach the question
whether, if they are employers, they may be regarded as constituting a single employer over
whom jurisdiction may be asserted on that basis
TRIAL EXAMINER'S DECISION
This case was heard upon the consolidated complaint 1 of the General Counsel
of the National Labor Relations Board, herein called the Board, alleging that Chi-
cago Federation of Musicians, Local 10, American Federation of Musicians, herein
called Local 10, and the American Federation of Musicians of the United States
and Canada, AFL-CIO, herein called the International, had engaged in and were
engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act; and Shield Radio and T. V. Productions, herein called Shield, and
its agent, Martin M. Rubenstein, had engaged in and were engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, herein called the Act. Local 10 and the International filed answers
to the consolidated complaint, admitting some of its allegations, denying some,
and disclaiming knowledge of others; in effect, they denied the commission of any
unfair labor practices. Neither Shield nor Rubenstein filed an answer.
Pursuant to notice, a hearing was held before Trial Examiner Harold X.
Summers, at Chicago, Illinois, on March 3 through 7, 1964, at which appearances
were filed on behalf of the General Counsel, Local 10, and Harry Hawthorne, the
Charging Party, but not on behalf of Shield, Rubenstein, or the International. On
several occasions during the hearing, the General Counsel was granted leave to
amend the consolidated complaint, inter alia withdrawing all allegations respecting
the International and eliminating the International as a respondent; and Local 10
orally answered the complaint thus amended, still, in effect, denying the commission
of any unfair labor practices. All parties were afforded full opportunity to exam-
ine and cross-examine witnesses, to argue orally, and to submit briefs. Briefs filed
by the General Counsel and Local 10 have been fully considered.
Upon the entire record 2 in the case, including my evaluation of the witnesses
based upon the evidence and my observation of their demeanor, I make the
following:
FINDINGS OF FACT
1. THE SETTING AND THE ISSUES
Since the contested issues in this matter bear not only upon the merits and the
remedy sought, but also upon the Board's jurisdiction, it appears fitting that the
bare framework of the alleged unfair labor practices and the points of difference
between the parties be set forth at the outset.
'The complaint was issued October 21, 1963 The original charges Cases Nos. 13-CB-
1466 and 13-CA-5695 were filed on June 18 and 19, 1963, respectively.
a On April 22, 1964, after the close of hearing, the parties submitted a stipulation that
George E. Marienthal, if called as a witness, would give testimony concerning the opera-
tions of employers involved herein, said testimony being set forth in the stipulation and
supported by an attached affidavit By agreement of the parties, the stipulation and
attached affidavit are received herein as General Counsel's Exhibit No 21.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The case arises out of Local 10's enforcement of its so-called freeze rule. The
rule, found at section XI (d-7) of its current constitution and bylaws, reads as
follows:
Duties of Members . . . Members employed on steady engagements where the
five day work week is in force, cannot accept engagements on the sixth and
seventh days of the week, without first securing permission from the Boaid of
Directors.3
The General Counsel does not attack the validity of the freeze rule as it affects
union membership or results in internal union action such as the imposition of
fines, but he does challenge its enforcement by Local 10 to the extent that it affects
the employment of its musician-members. Specifically, he contends that, on three
separate occasions, Local 10, in enforcing the freeze rule, caused employers to deny
employment to Harry Hawthorne, the Charging Party, by which acts such employers
discriminatorily encouraged adherence to union rules; that, by these instances and
by the levying of fines on "employers" (leaders) for implementing violations of the
freeze rule, Local 10 generally caused employers, in addition to the three men-
tioned, to deny employment to its musician-members; and, finally, that even if its
general enforcement of the freeze rule might not be deemed violative of the Act,
Local 10 disparately enforced the freeze rule as between members, thereby denying
equal treatment with respect to employment opportunities for its members-all in
violation of Section 8(b)(1)(A) and (2) of the Act. In addition, he has charged
that the capitulation of one of the three employers (mentioned above) to Local 10's
demand that he not hire Hawthorne itself constituted a violation of Section 8(a) (3).
Anticipating jurisdictional problems, the General Counsel would have the Board
assert jurisdiction on a number of bases: he contends that its jurisdictional stand-
ards are met by one or more of the affected enterprises whose status as employers
is not in dispute; that, in addition, orchestra or band leaders in the field in question
also are employers under the Act and that one or more of them meet the jurisdic-
tional requirements; and that-in order to provide a meaningful remedy-jurisdic-
tion should be taken over other band leader-employers on the theory that all in the
field constitute a single employer.
Local 10, conceding the existence of the freeze rule, contends that it does not
enforce it, and has not enforced it, by causing employers to deny employment;
moreover, that orchestra or band leaders are not "employers" within the meaning
of Section 8(b)(2); and, finally, that in its enforcement of the rule-by internal
union action-it does not unreasonably discriminate between members or classes of
members. At the threshold, it contests the Board's jurisdiction in this matter, meet-
ing head on the General Counsel's arguments thereupon.
As above indicated, Shield has filed neither answer nor appearance. The Gen-
eral Counsel, however, seeks no separate remedy against Shield alone. Pointing
out that the thrust of the case is the allegedly unlawful enforcement of Local 10's
freeze rule by Local 10, he takes the position that the case against Shield properly
stands or falls along with the case against Local 10.
Thus-despite countercharges of obfuscation hurled by the parties-we find the
issues sharply drawn:
(1) Will, or should, the Board take jurisdiction as requested by the General
Counsel? and, if not as fully requested, to what extent? (What involved
"employers" meet the Board's commerce standards? Are band leaders employ-
ers? If so, do all in the involved field constitute a single employer?)
(2) Has Local 10, in its enforcement of its freeze rule, caused employers to
deny employment to Harry Hawthorne, or other musician-members? (Once
again-are band leaders "employers?" If so, are they employers within the
meaning of Section 8(b)(2) of the Act?) Has it disparately, and unlawfully,
enforced the freeze rule?
II. COMMERCE
A. Shield, Rubenstein (as agent), and Holiday
Shield, a Respondent herein, is an Illinois corporation engaged, at Chicago,
Illinois, in the production of radio and television commercials. During the year
1963, Shield, in the course and conduct of its business operations, prepared and
3 The constitution and bylaws include a number of implementing provisions as well
Paraphrasing them: "The following are violations and cause for charges.. . . Imperiling
the interest of the Local or members . . . . Failure to report any known violation of the
Constitution or By-laws . . . . Engaging in any violation of the Constitution or By-laws."
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 71
shipped from its Chicago facility recordings valued at in excess of $100,000, of
which in excess of $50,000 worth were furnished to J. Walter Thompson & Asso-
ciates, Leo Barnett & Associates, and Foote, Cone & Belding, each of which itself
annually performs services outside its home State of a value exceeding $50,000.
The recordings furnished such enterprises by Shield consisted of radio and television
"jingles" and spot announcements for products under the trade name or trademark
of, among others, "Helene Curtis Cosmetics," "Pet Milk," "Sunbeam Appliances,"
"Drewry's Beer," "Seven-Up," and "Reynolds Aluminum," each of which trade-
named or -marked products is manufactured by an enterprise which itself annually
ships goods valued at in excess of $50,000 across State lines.
Martin Rubenstein, named as a Respondent herein in his capacity as agent for
Shield, is one of four equal holders of Shield's stock. He is in active and sole charge
of Shield's musical activities: he hires musicians-from 1 to 30, depending on
instant needs-conducts, and himself plays the piano. In his hiring function, from
the standpoint of the musicians hired, Rubenstein also purports to act as a leader-
contractor dealing with Shield; and as such, he executes an engagement-contract
"with" Shield-often signing the contract on behalf of Shield and as a band leader
contracting with Shield.
The Holiday Ballroom, herein called Holiday, is an enterprise with respect to
which-not because it is a respondent herein but, allegedly, because its operation
is affected by the freeze rule-testimony was offered at this hearing. Operating a
dancehall on the northwest side of Chicago, Holiday is a general partnership com-
posed, among others, of Daniel Belloc and his father. In the course of its opera-
tions each year, the partnership grosses between $70,000 and $100,000. Among the
bands which perform there are (1) bands from outside of Illinois, furnishing serv-
ices worth $30,000 annually, and (2), at times, a band conducted by partner Dan
Belloc.4
B. Orchestra leaders
1. Are they employers?
The General Counsel deems it necessary, for purposes of the accomplishment of
effective remedial action, that the Board assert jurisdiction over this situation as it
affects, among others, a certain segment of orchestra leaders. As the first step in
this direction, he urges that these leaders are employers within the meaning of Sec-
tion 2(2) of the Act. Local 10 vigorously opposes this contention: whatever they
may be-rank-and-file musicians, agents of rank-and-file musicians, agents of employ-
ers, or supervisors for employers-they are not employers.
At the outset, a boundary must be fixed. The General Counsel makes no con-
tention in this proceeding that the alleged unfair labor practices affect the leaders,
conductors, musical directors, and contractors or booking agents for theaters, for sym-
phony or other classical-music orchestras, and for radio and television stations or
networks, and, therefore, he seeks no assertion of jurisdiction in this matter by
virtue of any contention that they are employers. Therefore, I find it unnecessary
to pass here upon their status as employers; 5 I confine myself to a resolution of the
status of leaders in the area often referred to by the parties as the "single engagement"
and the "steady engagement" fields outside of the theater, the classical, and the
radio-television areas. Typically, the single engagement is a one-night or one-
performance stand, while a steady engagement is one for more than a single per-
formance, one which covers a specified period of time or an indefinite period of
time subject to termination by specified notice.
These leaders, it must first be noted, are themselves musicians and, except in rare
instances barely alluded to in this record, are members of Local 10. Each of them
is able to play one or more instruments; and, almost without exception, each of
them has worked as a "sideman"-i.e., as a rank-and-file player-in another leader's
band. Moreover, in many cases, a leader will (to a greater or lesser extent, depend-
ing on his circumstances) act as a sideman in another's orchestra even during periods
in which he leads an orchestra himself.
The factor which appears to separate the leader from the sideman is the former's
ability to "sell" a musical package to prospective purchasers, because of "following"
or reputation, business acumen, or other factors. He seeks out, or is sought out by,
* On the latter occasions, the ballroom executes an engagement-contract with Belloc ; the
contract sometimes is executed between Belloc as a partner and Belloc as a leader.
5 Thus, except as it tangentially throws light upon the status of the status of other
leaders, I do not rely upon the voluminous testimony in this record bearing upon the duties
and responsibilities of those in the theater, symphony, and radio-television fields.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the restaurant, hotel, nightclub, ballroom, recording or transcription producer, civic,
fraternal, or professional organization, father of the bride, parents of the bar mitz-
vah-anyone who needs a band-and he makes arrangements to supply their musical
needs.6 He enters into an arrangement with the purchaser,7 an arrangement which
eventually takes the form of a written contract.8 The arrangement covers, at the
least, the date and hours of the performance, the number of musicians, and the
overall price to be paid. The purchaser may, and sometimes does, prescribe a
"theme" underlying the performance and the instrumentation; possibly, he dictates
the type of music to be played, and he may require that musicians be uniformed.
In all these matters-quickly to dispose of a subject given long and labored atten-
tion by the parties-the purchaser has the last word to the degree he is insistent and
is willing to look elsewhere if his desires are not satisfied, while the leader has the
last word to the degree he is insistent and is willing to forgo the job if his artistic
or business sense is offended.
The bargain made, the leader selects the musicians,9 and he communicates
directly with each.1° The leader conveys the terms of the performance-place,
hours, and pay-and the musician indicates his willingness or unwillingness to play
the performance.
At the performance itself (whether a single engagement or one of a series con-
stituting a steady engagement), the leader "conducts" the orchestra. He selects the
pieces to be played-within any broad limitations previously arranged with the
purchaser-and he sets and maintains the tempo.11 He may, and often does, play
an instrument along with the others. He calls the rest-breaks and (pursuant to prior
arrangements made with the purchaser) the conclusion of the performance.
After the performance (or, in the case of the steady engagement, at the conclusion
of the pay period), the leader, having received the overall fee from the purchaser,
distributes to each participating musician his compensation, either by personal check
or through a professional payroll service. He makes deductions for income and
social security taxes and for union assessments, which, along with similar deductions
from his own compensation and with appropriate employer's shares of such funds,
he transmits to the Government or to Local 10, whichever is applicable.
The form of the engagement contract between the purchaser and the leader, above
referred to, is prescribed by Local 10. It varies as between different types of engage-
ments, but the several forms have common elements. They denominate the pur-
chaser, one of the parties to the contract, the "employer"; refer to the other party as
"the [specified number of] musicians, including the leader"; delegate authority to the
leader, "as agent for the employer and under his instructions," to hire employ-
ees for the performance; reserve to the "employer" complete control over the
services of the employees, except that the leader, "as agent for the employer,"
is empowered to impose disciplinary action and effectuate instructions bearing on
the performance of duties; require the leader, "on behalf of the employer," to dis-
tribute funds owing each employee, including himself; and call for the signatures,
on the one hand, of the "employer" and, on the other hand, of the "leader."
8In performing this function, he acts as a contractor or booking agent, terms often, but
not always, used interchangeably with leader.
7 As will be seen, this is the person regarded as the "employer" by Local 10. I employ
the term "purchaser" only as a convenient label; its use should not be construed as a
determination of status
8 The available evidence indicates that procedures are something less than rigid in this
respect A nominal contract is signed in all cases-eventual submission of a copy to Local
10 is a requirement of Local 10-but, in practice, the contract may be signed before or
after the engagement is played ; and, on occasion, someone other than the purchaser may
"sign for" the purchaser on the strength of telephonic agreement reached
8 The basis for his selection is his personal knowledge of musicians' ability and avail-
ability. (Often, he has a regular group who play with him.) On at least one occasion
referred to in this record, the purchaser had insisted in advance on the hiring of two
specific persons, an insistence honored by the leader.
10 Although, in another connection, the General Counsel likens the hiring process to an
exclusive union hiring hall, there is no doubt, and I find, that hiring is not normally, let
alone exclusively, done through Local 10
u This finding is made on the basis of credible testimony in the record, despite conflict-
ing testimony to the effect that "leader" is a meaningless term and that the drummer sets
the tempo. I find that, to the extent that the drummer "kicks off the tempo," he does so
under the direction and control of the leader.
CHICAGO FEDERATION OF MUSICIANS , LOCAL 10, ETC. 73
The total performance fee, as indicated above, is bargained out in advance
between the purchaser and the leader . The latter uses, as a minimum basis for his
bargaining , the sum of the "scales"-Local 10 set minimum pay standards-for
each of the musicians intended to be used ,12 plus his own leader -scale, plus any
other anticipated costs, such as for transportation . In his wage negotiations with
each musician , the leader uses, as a minimum basis for such bargaining as takes
place, the union scale for that perfoimance ; 13 depending upon circumstances, he
may, and often does, pay certain musicians above scale . When the performance
and the financial transactions have been completed , the leader pockets the differ-
ence between the fee received and the expenses , including wages paid . There are
occasions on which, because of miscalculation , unexpected expenditures , or other
factors, the leader loses money on a performance , in which case he personally
shoulders the loss.
On this record , it is clear, and I find, that orchestra and band leaders, when
they act as leaders, are employers . 14 Any presumptions to the contrary created by
the labels used and the provisions contained in the ( Local 10-designed ) engagement
contracts are amply rebutted by the actual circumstances surrounding each engage-
ment.15 The leader negotiates a comprehensive fee for the performance , without
the necessity of breaking it down for the purchaser ; he selects prospective perform-
ers and negotiates with them as to individual wages to be paid them; he has the
widest authority over such "details" as the control , the discipline , and, if necessary,
the discharge or replacement of sidemen ; and, subsequently , from the fee collected,
he pays the men, making payroll deductions and appropriate transmissions of funds
deducted , with no necessity for an accounting to the purchaser . Overall, he stands
to gain or to lose money on each engagement , depending upon his negotiating
abilities and powers , the supply -and-demand situation of the moment , and such
other factors as might affect the fortune of employers dealing in services. On
balance, I find that the entrepreneurial aspects of a leader 's work outweigh the
"outer-control" aspects.
Local 10, in its brief , cites a number of cases 16 for the proposition that "the test
for determining whether the employer -employee relationship exists is right to con-
trol, not the actual exercise of control ." Aside from the fact that my conclusion
here is consistent with this principle-my answer being that leaders both have the
right to control and do exercise control-the cited cases concern themselves with
whether given individuals are independent contractors or employees , not, as here,
employers or employees . 17 Nor is its citation of certain Board decisions 18 involv-
za The identity of each such musician may or may not be known at the time of the execu-
tion of the contract
13 Local 10 ' s scale is the same for those who play different instruments , but it varies with
the type of performance.
14 In this respect, I am in substantial agreement with a number of court decisions which
were concerned with Internal Revenue Service or the Act ' s Section 302 interpretations
(Cutler v. United States , 180 F Supp . 360 (Court of Claims ) ; Carroll v Associated Mu-
sicians of New York, 183 F. Supp. 636 (D . C.S.D N.Y ), affd. 284 P. 2d 92 (C A. 2)
and Cutler v.AFM and Local 802, 316 F 2d 546 ( CA. 2), cert . denied 375 U S. 941
To the extent that-as argued by Local 10 here-any such decisions may have confined
themselves only to those who acted as leaders 100 percent of their time , my conclusion
involves this difference : whatever percentage of his time is spent as a leader, I find that
a musician is acting as an employer only if and when engaged as a leader
11 See Butler Brothers v. N.L R .B., 134 F. 2d 981 , 984 (CA. 7 ), in this respect affirming
41 NLRB 843.
16 N L.R B. v. Nu- Car Carriers , 189 F. 2d 756 , 759 (C A. 3), cert denied 342 U S 919 ;
N L R.B. v. Steinberg and Company, 182 F. 2d 850 ( C A. 5) ; United Insurance Co v.
N.L R B , 304 F . 2d 86 (C.A. 7) ; N.L.R.B. v. Keystone Floors, Inc ., d/b/a Keystone Uni-
versal Carpet Co., 306 F. 2d 560 ( CA. 3) ; Deaton Truck Lines , Inc, 143 NLRB 1372
17 Just as apt would be the principle that an independent contractor and not an employer-
employee relationship exists where the person for whom the work is to be done, while he
may control the result to be accomplished by the work , does not control the details and
means by which the result is accomplished . ( 27 Am Jur ., Independent Contractor § 2 ;
United States v. Silk, 331 U.S 704; N L.R B. v Steinberg , supra, Williams v United States,
126 P. 2d 129 , 132-133 ( CA. 7), cert. denied 317 US. 355 ) Under this test, the pur-
chaser in the instant case is not an employer
is Independent Motion Picture Producers ' Association , Inc , 123 NLRB 1942 ; Edward
Small Productions, Inc., 127 NLRB 283; Batjac Enterprises, Inc, et al ., 126 NLRB 1281 ;
and The Alamo Company , et al., 129 NLRB 1093.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing musicians persuasive. In three of the cases,19 the Board held moving picture
producers who retained considerable control over musicians to be their employers,
and in the fourth the producer was held not to be an employer only because it
delegated substantial control to an independent musical producer. At any rate, in
my opinion, musical conductors who work for such film or musical producers are
more akin to those in the theater, classical, or radio-television areas, on whose status
I pass no judgment here, or to the musical supervisors of recording manufacturers,
who are not involved herein,20 than to the leaders under discussion.
At my request, the parties, in briefs, discussed the question of whether the lead-
ers under discussion might not be considered supervisors rather than employers.
Upon a full consideration of the arguments presented thereon, and particularly in
view of the financial risks undertaken by leaders, I find that they are employers
rather than supervisors.
2. Bethancourt, Belloc, Rubenstein, Palmer, and Tondelli
Although they have not been joined as an employer-respondent in this matter,
two band leaders, Jose Bethancourt and Daniel E. Belloc, were named as employers
whom Local 10 caused to discriminate with respect to the employment of Harry
Hawthorne in violation of the Act. In addition, in connection with his single-
employer theory-see infra-the General Counsel presented evidence bearing on
the interstate activities of three other leaders, Martin Rubenstein, John Palmer, and
Reno Tondelli.
Bethancourt receives something in excess of $30,000 per year for services per-
formed by his band, a trio, for London House, Inc., a Chicago nightclub restaurant
which itself (1) has a gross annual business in excess of $500,000; (2) receives
from points outside the State of Illinois goods valued at in excess of $10,000 per
year; and (3) receives from points outside the State of Illinois talent and entertain-
ment valued at in excess of $50,000 per year.
Belloc, who has heretofore been mentioned as a partner in Holiday, conducts a
band which, normally working in and about Chicago, performs services outside the
State of Illinois valued at from $70,000 to $100,000 per year.
Rubenstein (in addition to his duties for Shield, supra) receives something in
excess of $30,000 per year for services performed by his band, a trio, for Mr.
Kelly's Inc , a Chicago nightclub which itself (1) has a gross annual business in
excess of $500,000; (2) receives from points outside the State of Illinois goods
valued at in excess of $10,000 per year; and (3) receives from points outside the
State of Illinois talent and entertainment valued at in excess of $50,000 per year.
Palmer conducts a band which during the year 1963 performed services out-
side the State of Illinois valued at approximately $100,000. Since only $10,000 or
$12,000 worth of services were performed within the State, it becomes necessary-
for jurisdictional purposes-to determine the base of operations of the band, a
subject about which there was no direct testimony in the record. On the basis of
such related testimony as was given-Palmer lives in Illinois; he is a member of
Local 10; in testifying (at Chicago) he constantly uses the phrase "going out" in
referring to his travels; and he employs the services of a Chicago payroll service-
I conclude, and find, that the band's base of operations lies within the State of
Illinois.
Tondelli, leader of an orchestra playing at Henrici's O'Hare (Chicago Airport)
Inn, annually receives therefor a gross income of approximately $45,000. This
record contains no testimony concerning the operations of O'Hare Inn.
3. Does the class constitute a single employer?
The General Counsel would have me find that orchestra leaders, named and not
named in this proceeding (excluding from consideration those in the theater, clas-
sical, and radio-television fields), constitute a single employer and that, therefore,
either because some of them meet the Board's jurisdictional standards or because
the total of their operations meets such standards, jurisdiction should be asserted
over them all 21
19 Independent, Small, and Batfac , supra.
20 Note tha t I have made no finding that Rubenstein , in his capacity as agent for Shield,
is himself an employer
21 Tlectrical Contractors of Troy and Vicinity, 116 NLRB 354 , and Panaderia La Regu-
ladora and Panaderia La. Francesa, et al , 118 NLRB 1010, respectively
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 75
As I understand it, the General Counsel's theory that these orchestra leaders con-
stitute a single employer is grounded on the proposition that the method of setting
wages, hours, and working conditions in this geographical area in this industry can
be equated to multiemployer collective bargaining. In the course of his argument,
he makes use of a number of circumstances, which I find to be facts: (1) leaders
are members of Local 10, (2) Local 10's board of directors (which includes lead-
ers) prescribes the conditions which prevail at musical performances within its
jurisdiction, and (3) leaders, as members, are bound by Local 10's prescriptions.
Reasoning from these facts, he argues, therefore, that (4) the leaders should be
deemed to have collectively bargained (to the extent this might be called collective
bargaining) as a group. As additional factors, he points out-and I find-that (5)
in the enforcement of union-security provisions in the industry,22 service with one
or any other leader is "tacked on" in computing the 30 days of employment after
which a musician must join Local 10, and (6) the current dues-deduction-authoriza-
tion cards, signed by musicians and kept by Local 10, run to "my employer, who-
ever he may be ...." And finally, I find a fact, as urged upon me by Local 10,
that (7) the leaders are engaged in competition with each other.
The General Counsel has submitted no precedents in support of his theory, nor
have I found any; this appears to be a case of first impression.23
It is argued that, in this industry, working conditions in Chicago and vicinity are
dictated by Local 10's board of directors, either on its own initiative or at the
request of a member that the thus-created working conditions are officially announced
to all members, and that the dictates are binding upon all employers (leaders) by
virtue of their membership in Local 10. Although he terms this something less
than collective bargaining, the General Counsel urges that this constitutes such col-
lectrie bargaining as is permitted by Local 10 under the circumstances. (As indi-
cated, leaders (employers) do hold positions on the board of directors; also, on many
occasions, changes in working conditions are effectuated by the board of directors
at the behest of leaders.) This is likened, then, to employer-group or association-
wide collective bargaining.
This is an ingenious theory, but it contains a major flaw. Its application opens
the road to the Board's assertion of jurisdiction over large groups of small employers,
individually having no impact on interstate commerce, toward (or against) whom
a particular union may be directing efforts to attain uniform working conditions.
I perceive no desire on the part of the Board-or of the Congress-to expand the
reach of the Act in this direction. I reject the General Counsel's contention.24
C. Conclusions on jurisdiction
(1) Shield is an employer engaged in commerce within the meaning of the Act,25
and Martin Rubenstein is its agent.
(2) Holiday meets none of the Board's jurisdictional standards.
(3) I have found that band leaders (excluding the categories earlier noted) are
employers. With respect to such leaders:
(a) Jose Bethancourt, as an individual leader, meets none of the Board's juris-
dictional standards.
(b) The General Counsel, at the hearing and in briefs, proceeds on the assump-
tion that Daniel Belloc, as an individual band leader (and apart from his relation-
ship with Holiday), is clearly engaged in commerce within the meaning of the Act,
by virtue of the $70,000 to $100,000 worth of services he performs outside Illinois.
The assumption is bottomed, presumably, on a prior assumption-that Belloc is
engaged in a nonretail operation-for he does not meet the Board's "retail" stand-
ard.26 Apart from the fact that there are difficulties in categorizing the furnishing
of a service as retail or nonretail,27 I have some difficulty in arriving at an easy
acceptance of the assumption that band leaders are engaged in a nonretail operation.
29 A union-security provision appears in contracts between purchaser and leader. The
provision is not under attack herein.
23 Local 10 has cited cases in which jurisdiction was not asserted over a combination
of employers in view of the absence of a showing of common control or ownership, but
these cases do not deal with or meet the principle which the General Counsel wishes to
establish
u Cf Santa Clara County Pharmaceutical Association, etc, 114 NLRB 256.
25 Siemons Mailing Service, 122 NLRB 81.
21 With respect to retail enterprises, the Board considers the total volume of business
rather than the extent of interstate activities. Carolina Supplies and Cement Co , 122
NLRB 88
27 I have seen no discussion of the subject by the Board
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Surely, the sale of music to the family of the debutante for the enjoyment of their
guests represents a sale to the ultimate consumer. In the case of Belloc, however,
it is quite apparent, and I find, that at least some of his music is sold to purchasers
whom, in turn, pass on the costs to "customers." Where both retail and nonretail
operations are involved, either retail or nonretail standards may be applied.28 Since
Belloc's operations do meet the Board's nonretail standards, I find, in agreement
with the General Counsel, that he is an employer engaged in commerce within the
meaning of the Act.
(c) Martin Rubenstein, as an individual leader (and apart from his relationship
with Shield), meets none of the Board's jurisdictional standards.
(d) For the same reasons as those applicable to Belloc, I find that John Palmer,
as an individual leader, is an employer engaged in commerce within the meaning of
the Act.
(e) Reno Tondelli, as an individual leader, meets none of the Board's jurisdic-
tional standards.
(f) On this record, I find no other band leader, as such, to be an employer within
the meaning of the Act.
(g) I find that orchestra leaders (excluding the categories earlier noted) do not
constitute a single employer for purposes of determining the Board's jurisdiction
herein.
III. THE UNION
Respondent Local 10 is, and at all times material has been, a labor organization
within the meaning of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events 29
1. James Petrillo, who had once been president of the International, was the
president of Local 10 in December 1961 when a "reform" movement reared its
head. The Chicago Musicians for Union Democracy, during the year 1962, orga-
nized in opposition to the incumbent officers and set up its own slate of candidates
for an election with the exception of one office and one directorship.
Among the winners on the reform ticket was the Charging Party, Harry Haw-
thorne, who was elected to Local 10's trial board.
2. In November 1962 the "Chicago Symphony Orchestra Members Society,"
through one Joseph Golan, filed an unfair practice charge with the Chicago office
of the Board,30 alleging, in effect, that Local 10 (then under Petrillo) had threat-
ened to extend the freeze rule (which is involved in this case) to the "symphony"
musicians. After the new administration took office in January 1963, the charge
was dismissed; subsequently, an appeal from the dismissal was withdrawn.
3. On or about March 24, 1963,31 band leader Jose Bethancourt found himself in
need of a drummer for a dance at the Conrad Hilton Hotel sponsored by the Pan
American Council. He asked Hawthorne if he was available. Hawthorne said he
would be happy to play the engagement but-because of his steady employment he
was "frozen" under the freeze rule (supra)-he suggested that Bethancourt call
Local 10 for permission. Bethancourt called Bernard Richards, Local 10 presi-
dent,32 who, upon learning of the object of the call, said, "It would be very embar-
rassing to have Hawthorne play with you due to the fact that he is a member of
the [trial] board." Thereupon, Bethancourt told Hawthorne of the reply, and the
latter did not play the performance.33
23 Man Products , Inc., 128 NLRB 546.
- My findings of what occurred, or did not occur, as recited in this section will not be
repeated elsewhere in this Decision. Reference to items in this section will take the form
of the abbreviation "chron.", followed by the item number or numbers being alluded to.
ao Case No. 13-CB-1324.
31 Unless otherwise indicated, dates referred to in the rest of this section are within
the year 1963.
32 Richards , at all pertinent times , was an agent of Local 10.
ss With respect to Bethancourt's needs at the time, the parties launched into extended
testimony to demonstrate that Hawthorne was or was not a better drummer than others
in Chicago. Suffice it to say, and I find, that whatever Hawthorne's ability, Bethancourt
knew him and wanted him for the engagement.
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 77
4. In April 1963 orchestra leader Dan Belloc ( in his personal capacity, not as a
partner in Holiday) was scheduled to play an engagement for Loyola University at
the Sheraton-Blackstone Hotel. His drummer being ill, Belloc called Hawthorne,
asking if he could get permission to play at the engagement . Hawthorne tele-
phoned Richards and asked permission to play for Belloc. Richards replied that
Hawthorne could not work with Dan "because it would look bad." Hawthorne
informed Belloc of this reply, and he did not work the performance.
5. At or about this time, Hawthorne decided to do something about the freeze
rule. During April four or five musicians interested in changing the rule met at
his home to discuss the matter, and , thereafter, Hawthorne and others prepared an
amended rule 34 which was submitted in resolution form at the meeting of May 14.
In accordance with its regular procedures, Local 10 published, for its members, the
fact that the amended rule was going to be taken up at its next membership
meeting.35
The June meeting was not held because Local 10 officers had to attend a con-
vention of the International . Before the July meeting was held, Hawthorne, because
he knew that a number of "frozen" musicians would not be able to attend the July
meeting, submitted a request to withdraw the resolution.
At the July meeting-held, as usual , on the second Tuesday of the month-the
members, in accordance with normal procedures , first voted on Hawthorne' s request
to withdraw his resolution ; this was defeated. A vote was then taken on the reso-
lution to amend the freeze rule; this also was defeated , overwhelmingly.
6. Meanwhile, on May 25, despite his frozen status, Hawthorne played an engage-
ment at the Conrad Hilton Hotel for band leader Thomas Moses. In the course of
normal inspection trips to police union rules , two of Local 10's business agents, indi-
vidually, came upon Hawthorne playing at this engagement . Both of them spoke to
Hawthorne, but neither of them mentioned his frozen status.
Both business agents reported the incident and charges were preferred against
Moses and Hawthorne. The trial board assessed a fine of $100 against Moses and
$500 against Hawthorne. (Hawthorne pleaded no -defense except to say, when
asked why he took the job, "$35 ... strictly money. Tommy called me and he was
hard up for a drummer . So I took the job.") Moses subsequently appealed to the
board of directors on the ground that the fine against him was excessive . Upon his
assuring the board that he would not again hire a frozen man, $75 of his fine was
remitted. Hawthorne's appeal to the board of directors-based, apparently, upon
the alleged illegality of the rule-is still pending.
Meanwhile, shortly after his being charged, Hawthorne was suspended from his
position as a trial board member.
7. Early in the month of June, band leader Daniel Belloc's drummer was seri-
ously ill . Needing a proficient drummer, he called Hawthorne again. (See chron.
4.) This time, Hawthorne told Belloc to call the union himself. Belloc called and
spoke to Walter Nied, business agent,3° who told him, "You know the rules on
frozen persons" and, in further discussion , he suggested that Belloc attend his forth-
coming meeting at which the freeze rule would be discussed . Thereupon, Belloc
hired another drummer.37
8. On or about June 14, Martin Rubenstein , on behalf of Shield , spoke to Haw-
thorne about prospective employment , offering him a job making an advertising
transcription on June 17. When Hawthorne said that he was "frozen ," Rubenstein
34 ". . . Members employed on steady engagements where the five-day work week is in
force cannot accept any engagement on the sixth or seventh days of the week at the same
establishment wherein he is employed without first securing the permission of the Board
of Directors .. .. 11 [ Emphasis supplied ]
35 Inadvertently , mention of this, inter alia, was omitted from its regular publication
of minutes appearing in the current issue of Local 10's official publication , "The Inter-
mezzo." The situation was remedied by the circulation of a special announcement con-
taining the omitted material.
39 Nied , at all pertinent times, was an agent of Local 10 within the meaning of the Act.
37 There is some conflict between the testimony of Belloc and Nied with respect to what
Nied said on the telephone . The facts given above are derived from the credited testimony
of Belloc , who appeared to have no reason to stretch the truth. Nied , who first testified
that he told Belloc the proper procedure was to call the board of directors , subsequently
confirmed that he may have said that Belloc "knew the procedures " ; that Hawthorne's
case was coming up and "we hoped to work out the situation " ; and that Belloc should
attend the July meeting where the freeze rule was going to be discussed On Nied's own
admission , his job involved too many details for him to remember each telephone call.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he would seek permission of Local 10. He called Les Fulle, business
agent,38 to explain the situation. Fulle, said "You know the rules ," and when
Rubenstein asked if this meant he could not use Hawthorne , Fulle repeated "You
know the rules ." Thereupon , Rubenstein called Hawthorne and told him that he
could not use him.
9. On June 18, Hawthorne filed the instant charge against Local 10, alleging
pressure on Shield, Bethancourt , and Belloc not to employ him. Next day , he filed
the charge against Shield.
10. At one time-date uncertain-during the summer, Local 10's Vice President
Rudolph Nashan 39 called the business agents together and instructed them not to
tell leaders to refrain from hiring frozen men.
11. During January 1964 , one of band leader Jose Bethancourt 's men fell ill.
In an effort to replace him on short notice, Bethancourt made 40 telephone calls,
without avail . Then he called the union and spoke to Vice President Nashan, who
urged him to persist in his efforts . When Bethancourt asked if he could use Haw-
thorne if nobody else could be found, Nashan said, "Well , you may, you probably
can, but try not to use him." 40 Hawthorne thereupon worked the performance.
B. Harry Hawthorne
For some years , Harry Hawthorne, the Charging Party, has been a percussionist
in Chicago 's National Broadcasting Company staff orchestra ( Radio Station WMAQ
and local Television Channel 5 ); and he has been a member of Local 10 since 1953.
As above indicated , early in 1963 , on the reform slate, he was a successful candi-
date for a seat on Local 10's trial board. He served on the board until early June,
since which time he has been under suspension from the board.
The General Counsel charges Local 10 with causing or attempting to cause
Bethancourt, Belloc, and Shield to have discriminatorily denied employment to
Hawthorne on March 24, June 10, and June 13, 1963, respectively ; and, in con-
nection with the last of these incidents, charges Shield with having refused to hire
Hawthorne because of his noncompliance with Local 10's rules . The circumstances
surrounding the three incidents appear in chron. 3, 7, and 8, respectively.
As background material bearing on Local 10's treatment of Hawthorne , the Gen-
eral Counsel presented evidence of two other incidents-the refusal of Local 10 to
give permission for him to play with Belloc in April 1963 (chron. 4 ), and the
"reluctant" grant of permission for Bethancourt 's January 1964 engagement (chron.
11). Moreover, the General Counsel points out-and I find-that on or about
August 1, 1963, Local 10's board of directors , because of his employment with NBC,
refused Hawthorne permission to fill in for 2 weeks as a vacation replacement at the
"Happy Medium."
With respect to the incident of the preferment of charges against Hawthorne for
playing at the Conrad Hilton on May 25, 1963 (chron . 6), the General Counsel
calls attention to the facts that ( 1) the fine was unconscionably high, and (2)
although the trial board originally refused Hawthorne 's request to withhold judg-
ment on the charges until the instant Board case was disposed of, the board of
directors has now refused to act on his appeal from the assessment of the fine until
this case is disposed of.
(One issue should be resolved at the outset . Questioning of witnesses by counsel
for Local 10 created the impression that Local 10 would defend , at least in part,
on the contention that requests for permission for Hawthorne to work at frozen
jobs were directed to persons other than the proper source of authority , the board
of directors . The contention was not repeated in briefs . The short answer, of
course, is that those to whom the requests were directed-the Local president and
the several business agents-were, I find , authorized to receive and transmit or
otherwise act on them; 41 moreover , I find further , their answers amounted to refus-
als to grant permission.42)
38 Fulle, at all pertinent times , was an agent of Local 10 within the meaning of the Act.
39 Nashan is an agent of Local 10 within the meaning of the Act
40I so find on the basis of Bethancourt's credited testimony . Nashan did not testify.
u Richards referred to this as a routine matter for the business agents.
42 Whatever the words used, the true impact can be gleaned from Business Agent Fulle's
testimony : "I don't tell them they can't be hired I talk to them as members of Local 10,
and they know the rules, and there isn't a guy that doesn ' t know the rules, believe me."
Cf Brunswick Corporation , 131 NLRB 1338.
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 79
Since the General Counsel makes no claim that Hawthorne was being singled out
for attention under the freeze rule, it now becomes necessary to examine more
broadly the enforcement of the rule.
C. General enforcement of the freeze rule
In addition to the allegations concerning three incidents surrounding Hawthorne's
employment (supra), the General Counsel urges that Local 10, in its general en-
forcement of the freeze rule, has attempted to cause and has caused employers in
addition to Bethancourt, Belloc, and Shield-specifically, all leaders or others who
select and hire musicians for so-called club engagements-to deny employment to a
class of musicians--specifically "frozen" musicians-thereby unlawfully compelling
adherence to union rules 43
Aside from their strong differences respecting the validity of Local 10's enforce-
ment of its freeze rule, it seems generally agreed by the parties that the origin of
the rule was the desire to spread the available work among Chicago musicians.
The music industry did not escape the effects of the great depression in the early
1930's; by action of Local 10's board of directors, the workweek of the steadily
employed orchestra (such as remained) was cut from 7 days to 6 days in the hope
that an "off-night" band might be used on the seventh day.44 During or about 1951,
the week was further cut to 5 days, again, hopefully, to provide employment for
so-called freelancers or jobbers-i.e., those not steadily employed. In order better
to attain the desired result, Local 10-during or about 1953-put into effect the
substantial equivalent of the freeze rule.45
As the wording of the freeze rule and of its implementing rules imply, the all-
over objective has been to afford job opportunities to the lesser-employed musicians
by placing job limitations upon the greater-employed. The enforcement of the rule
throughout the years, without any real alteration in its express language, has under-
gone a number of changes. For example, at one time, the limitation on accepting
extra work was originally imposed only on those earning in excess of $100 per
week. As this figure lost meaning, the limitation tended to apply to classes of
engagements rather than to a dollar amount, but even here, there has been change.
At one time the (legitimate) theater musicians were among those frozen by the
rule but, in 1959, spokesmen for them were able to persuade Local 10's board of
directors that-apparently because of the short termination notice period applicable
to them as well as the general unreliability of employment in their segment of the
industry-the freeze-rule limitations should not be imposed upon them. Also, as
has been seen, a prior unfair labor practice charge was bottomed on the allegation
that Local 10 had "threatened" to extend the freeze rule to the symphony musi-
cians; although I do not regard the disposition of that case as having any binding
effect upon me, I do find, on the basis of this record, that, should it appear to be
dictated by the circumstances, the board of directors believes it has the authority
to extend and would extend the freeze rule to apply it to symphony players.
I find that at the present time Local 10's interpretation-and, consequently, its
enforcement-of the freeze rule involves a number of principles. The strictures of
the rule are applied to those musicians regularly employed full time-i.e., 5-day
weeks-in nightclubs, hotels, and restaurants and (whether playing in orchestras or
"turning" records) at radio and television, independent or network, stations; they
do not apply to freelancers or jobbers (even though some of them may find employ-
ment 5 or more days a week and irrespective of the money they earn) nor to the
musicians in theater or symphony orchestras. The rule applies equally to leaders
and sidemen. Persons frozen under the rule may not (without permission) accept
any work other than their regular work, with the exception that they, or any other
43 I have found only Shield, Belloc, and Palmer to be employers engaged in commerce
within the meaning of the Act. Holiday, Bethancourt, Rubenstein (as a leader), and
Tondelli are not. What is being said herein on the -merits is applicable only with respect
to employment by Shield, Belloc, Palmer, and such other employers as may be engaged
in commerce under the Act.
"Legend has it that during the depression then President Petrillo came upon a group
of NBC steadily employed musicians participating in a recording session ; his reaction,
"Why don't you guys cut out these recordings and let guys on the streets have a job?"
apparently led to the workweek cut.
45 Petrillo believed that musicians were now getting 7 days' pay for 5 days' work and,
therefore, that the limitation was justified.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
musician, may participate in the making of a commercial recording.46 As for the
board's granting of permission to frozen men to take work otherwise closed to them,
such permission will normally be withheld where unfrozen musicians are available
to handle the job; it may be granted under appropriate circumstances such as emer-
gencies; 47 where it is granted, the musician thus favored will normally be expected
to use a substitute for his regular work for an equivalent performance; and, finally
it will invariably be granted to a person, whether leader or sideman, for the pur-
pose of his working (and presumably acting as leader in) an engagement which he
has procured 48
The normal method of enforcing the freeze rule, I find, is by way of the institu-
tion of charges against both the frozen man who worked in violation of the rule
and the leader who hired him; 49 trial before Local 10's trial board; and (depending
on the circumstances found) the imposition of fines. In furtherance of this policy,
I find, agents of Local 10, acting either on "tips" furnished by informers or by spot-
inspections, seek out violations of the freeze rule.
I find that agents of Local 10, once they are made aware of a violation of the
freeze rule, do not, expressly or impliedly, request or demand that employment be
terminated. (Instead, as indicated, they subsequently prefer charges.) On the
other hand, it is clear, and I find, that Local 10 fosters and maintains among its
membership (including leaders) a continuing awareness of the existence of the
freeze rule, both by repeated publication of the rule and by publicization of disci-
plinary action meted out to those (including leaders) who violate the rule.
The General Counsel contends that the enforcement of the rule has been some-
thing less than standard and universal; also, that it has varied from period to period.
He points out that one musician was not prosecuted even though an issue of "The
Intermezzo" pictured him in a musical group in the very act of violating the freeze
rule.
I have no doubt, and I find, that enforcement was spotty. I find that this occurred,
however, not by design but by ignorance. At any rate, there is no evidence that
failures to enforce the rule were based upon union considerations.
A spot check of issues of "The Intermezzo" introduced into evidence reveals that
there have been numerous instances of the preferment of charges for violations of
the freeze rule during the period covered by these charges. Initial dispositions of
these proceedings have varied from dismissals to fines up to $500, and appeal pro-
ceedings have resulted in remissions on many occasions. But-if the factor is rele-
vant-the evidence in this record is insufficient upon which to compare the experi-
ence during this period with any prior period.
D. Disparate enforcement of the freeze rule
Anticipating the possibility that the attack upon Local 10's general enforcement
of the freeze rule might not be successful, the General Counsel argues, in the alter-
native, that, at any rate, the rule has been "discriminatorily" applied as between
members of Local 10. For example, it has not been applied to symphony musi-
cians nor, since 1959, to theater musicians, even though both groups enjoy 5-or-
more-day weeks of employment 50 Also-and this is a position taken primarily by
ae Not to be confused with the making of transcriptions or "Jingles," a field closed .to
frozen men. The distinction, apparently, is based upon the fact that Local 10 receives
certain funds as the result of the making of any commercial recording, while the prepara-
tion of a transcription (like any of the forms of muslemaking mentioned earlier) is a
matter of purely personal gain.
sz On this record , I find less disposition to grant such permission for elected ofoial8 of
Local 10 than for others ; but even with respect to these, permission will reluctantly be
granted in emergency situations. (See chron. 11.)
48 Underlying this principle is the fact that the person seeking permission has created
a new work-opportunity for musicians. Note that only he, not his fellow frozen-musicians,
can get permission to play the engagement.
49 Technically , any sideman who knowingly works alongside a frozen musician on a
frozen job is also violating a Local 10 bylaw , but-I find-charges are not brought
against him.
Bo At various times during the hearing, I was under the impression that the General
Counsel also urged as evidence of disparateness Local 10's apparent concentration of en-
forcement of the rule against Hawthorne as an individual or radio -television staff mu-
sicians as a group ; in his brief, however, he specifically disclaims any such positions.
CHICAGO FEDERATION OF.-MUSICIANS, LOCAL 10, ETC. 81
the Charging Party-it is urged that, at any given time, whatever interpretation is
put on the freeze rule by Local 10 administrators is dictated by political expediency-
it constitutes a bid to remain in power by a catering to a majority.
A word about numbers. Local 10 consists of approximately 11,000 members.
Of these, 10,700 are "unfrozen" musicians: almost 10,400 are freelancers or job-
bers; 250 play with the Chicago Symphony and/or other classical-music groups; and
60 play in theaters. The frozen musicians consist of 100 radio-television staff musi-
cians and 200 musicians working at nightclubs, hotels, and restaurants.
The traditional basis for the exemption of the symphony players has been the
fact that theirs was a relatively short workyear. The Chicago Symphony season
under their contract was 28 weeks in 1954; in 1964, it had increased to 36. In
addition, most if not all of the members perform for a number of weeks during
the summer at Ravinia Park, with a Chicago suburban symphony orchestra51
It has been noted that, late in 1962, there was an (alleged) threat to extend the
freeze rule of symphony players, now that their work year was substantially in-
creased. The move, if there was one, failed, but counsel for Local 10 freely conceded
that the subject is under continuing scrutiny.
As earlier indicated, the theater musicians, since 1959, have been exempted from
the freeze rule because of the uncertain tenure of their employment.
The radio-television staff musician not only has a longer work year, he receives
the highest wages in the industry. In the words of one witness, which I credit, his
is a position envied throughout the industry. For these reasons, I am told, the
freeze rule is applied to him.
It is also applied to the steadily engaged musicians in restaurants, hotels, and
nightclubs. As I understand it, his is the regular employment whose "off-night,"
along with single engagements and transcription dates, furnish the bulk of the
employment for the jobbers and freelancers.
The General Counsel, in the presentation of his case has made no special point
of the enforcement of the freeze rule against restaurant, hotel, and nightclub men,
perhaps because the bulk of the musicians involved in the freeze-rule cases have
been radio-television men. Reasons are not hard to find. The radio-television men
generally work at their regular jobs during the daytime hours. Perhaps their avail-
ability explains why they have been offered and have taken frozen jobs. Whatever
the reason, the more they take, the more they are "caught"; for, I find, there is no
shortage of "informers" in the business.52
One final category of musician, to whom the freeze rule does not apply, calls for
mention here. The making of transcriptions or "jingles" is open to all unfrozen
men. In point of fact, a few of these-by dint of virtues unrevealed in this record-
do exceedingly well in this field. Annual incomes of $20,000, $30,000, and $50,000
were alluded to in the testimony. As I see it, either this aristocracy has not been
in the habit of seeking pin money, or the extension of the freeze rule to cover them
would involve going back to, a consideration of amounts earned rather than classes
of engagements played; at any rate, they are not covered by the rule, nor does the
General Counsel make any point of this.
E. Discussion and conclusions
The General Counsel relies heavily upon the Board 's decision in Verve Records,
Inc.,63 in arguing that Local 10, by discrimination aimed at compelling obedience to
its rules embodying a work -spreading principle , unlawfully attempted to cause and/
or did cause employers to discriminate in regard to employment to encourage union
membership within the meaning of the Supreme Court's Radio Officers' case 54
Moreover, to the extent , as claimed , that Local 10 had no reasonable basis for dis-
tinguishing between classes among whom its freeze rule was or was not enforced,
m In contrast, the radio-television musicians receive 52 weeks' work per year. The hotel,
restaurant, and nightclub musicians have steady, full-time work, until and unless, upon
4 weeks' notice, their engagement-and their frozenness-ends.
521 find that, as a group, their identities are more well known than those of the res-
taurant, hotel, and nightclub men, who are a more mobile group. In my opinion, this
explains Local 10's publication of a "list of frozen men" confined to radio-television mu-
sicians, a fact relied upon by-the General Counsel to demonstrate disparate treatment.
51 127 NLRB 1045 . There, the union respondent compelled the denial of employment
pursuant to a union work-quota rule.
'3Radlo Ofcers' Union of C.T.U. (Bull Steamship) v. N.L.R.B., 347 U.S. 17.
796-027-66-vol. 153-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its enforcement was for arbitrary and irrelevant reasons proscribed in the Miranda
Fuel case 55
In this case, the General Counsel specifically attacks as unfair labor practices
only the three incidents involving Harry Hawthorne found at chron. 3, 7, and 8.
Evidence of remaining incidents or practices, such as there is, was offered only as
background to point up the alleged unfair labor practices or as a basis for fashioning
an effective remedy. For example, the General Counsel does not contend 56 that
the intraunion impositions of fines for violations of the freeze rule are unfair labor
practices; in view of their application to leaders and sidemen alike, however, he
points to the inhibitory effect upon employers (leaders) as indicative of a general
attempt to cause discrimination in employment. And, although seeking no indi-
vidual remedies for persons who have not filed charges herein, he has sought to
introduce evidence establishing a widespread practice warranting an equally broad
remedy.
The Verve case-as well as Turner Construction Company, 110 NLRB 1860,
cited therein by the Board-does appear to be apposite. In Verve, it was pointed
out, "Discrimination aimed at compelling obedience to union rules embodying a
job-rotation principle encourages membership in a labor organization." But neither
Verve nor Turner is the first, last, or total word on the subject.
In 1954, a Board case concerned itself with a union's attempt to implement its
rule against members' "moonlighting"; 57 in view of a lack of proof that the union
actually requested a discharge, the Board found it unnecessary to pass on the point
related hereto.58 A year.later (the Turner decision having issued meanwhile), in
Daugherty,59 the Board found no violation in a union's attempt (by causing dis-
charges) to enforce its rules on journeyman-apprentice ratios which had been incor-
porated in a collective-bargaining agreement. In 1960 the Board held 60 that a
union's attempt to enforce a contractual provision restricting seniority accumulation
to plant units represented by that union, in contrast with units represented by another
union, was not, in the absence of specific proof of intent to discriminate, violative
of the Act; and this conclusion was reaffirmed in a 1961 decision,61 the Board com-
menting that the union involved had not only the right but the duty to demand that
the contract provision be effectuated.
On April' 17, 1961, the United States Supreme Court issued its Local 357, Inter-
national Brotherhood of Teamsters 62 and News Syndicate 63 decisions. In the first,
the Court held that the Board erred in finding unlawful an exclusive union hiring
hall arrangement which failed to meet certain standards; 64 in the second, although
the Court expressed some doubts, it refused to assume, as had the Board, that fore-
men who did hiring would, because they were union members, discriminatorily
favor union members in the process. In brief, it now became clear that the true
purpose or real motivation of the respondent union , and not auxiliary side effects,
constituted the test of lawfulness 65 In this respect, although the result in Radio
Officers' differed from that in Local 357, International Brotherhood of Teamsters,
a' Miranda Fuel Company, Inc., 140 NLRB 181. Although enforcement of the Board
Order was denied (326 F. 2d 172 (C.A. 2) ), the General Counsel respectfully adheres to
the Board's pronouncement. -
'° In view of Local 283, United Automobile, etc. Workers (Wisconsin Motor Corporation),
145 NLRB 1097.
57 Abe Meltzer, Inc., 108 NLRB 1506.
ee It did find union representatives' violence aimed at enforcing the rule to violate
8(b) (1) (A) of the Act, a finding reversed by the Court of Appeals for the Second Circuit,
224 F. 2d 78.
as Daugherty Company, Inc., 112 NLRB 986.
'° In Central States Petroleum Union, Local 115 (Standard Oil Company), 127 NLRB
223, enfd. 288 F. 2d 166 (C.A.D.C.).
61 Kramer Brothers Freight Lines, Inc., 130 NLRB 36.
"Local 357, International Brotherhood of Teamsters etc. (Los Angeles -Seattle Motor
Express ), v. N.L.R.B., 365 U.S. 667.
es N.L.R.B. v. News Syndicate, 365 U.S. 695.
84 Set up by the Board in Mountain Pacific Chapter of Ageooisted General Contractors,
Inc., 119 NLRB 883.
es "The truth is that the union is a service agency that probably encourages membership
whenever it does its' job well. But [citing Radio 6fcers', supra, at 43] the only en-
couragement or discouragement of union membership banned by the Act is that which Is
`accomplished by discrimination."' Local 357, International Brotherhood of Teamsters,
etc., supra, 675-676.
CHICAGO FEDERATION OF MUSICIANS, LOCAL 10, ETC. 83
etc., or News Syndicate, there is a common thread: the lesson to be learned is that
there are cases in which, without pointed evidence, inferences as to the existence or
absence of unlawful motivation may be drawn from existing sets of circumstances.
In four cases 66 issued within the next 9 months, the Board dismissed complaints
alleging the unlawfulness of attempts of unions to deny employment to individuals,
the first three pursuant to the unions' desire for seniority for "local" workers, the
fourth aimed at maintaining job priority for "insiders" over "outsiders." In each
case, the Board concluded that the "encouragement of union membership," if it
existed, was the type of encouragement permitted by Local 357, Teamsters.
The next two cases went the other way. In Local 294, International Brotherhood
of Teamsters, etc. (Valletta Motor Trucking) 67 and in Miranda Fuel Co.,68 the
Board found that respondent unions violated the Act when-respectively-they
sought to control priority for extra truck runs for the benefit of unemployed drivers
as against regularly employed drivers, and to deprive an employee of seniority
because he had prematurely taken a leave of absence. In the first case, the Board
found, as a fact, that the union's action was really based on a desire for complete
control of assignments and that the union rule in question was being used as a
pretext. In the second case, a Board majority found that: (1) the union had vio-
lated its duty fairly to represent all employees in the bargaining unit by causing an
employer to derogate an employee's employment status "for arbitrary or irrelevant
reasons or upon the basis of an unfair classification"; (2) the offending reduction
of seniority was contrary to the collective-bargaining agreement rather than pursuant
to it; and (3) the conduct of the union constituted an arbitrary imposition of an
ex post facto rule of its own making, resulting in a derogatory personnel action
.,not sanctioned by [the proviso in] Section 8(a) (3) of the Act."
In cases decided during the succeeding 20 months, the Board dismissed cases in
which a respondent union informed an employer to lay off an employee who insisted
on working without receiving a subsistence allowance called for by the collective-
bargaining contract; 69 refused to refer an individual from its exclusive hiring hall
because, in error, he was not listed as registered; 70 unfavorably reclassified a
member/job applicant pursuant to a union rule against outside employment; 71
deprived an individual of his priority standing because of a union rule calling for
such action upon the rejection of a job offer; 72 and refused to refer a job applicant
until and unless he should, as called for by union rule, surrender his "travel card"
used for procuring employment in "foreign" territory.73 During the same period,
the Board found a violation of the Act when, inter alia, a union refused, on racial
grounds, to entertain a grievance pressed by an individual; 74 and when a union was
party to and enforced (1) a collective-bargaining agreement calling for a 75-25
distribution of work based upon race and union membership and (2) an arrangement
forbidding assignment of white and Negro gangs to work together.75
One may draw his own conclusions from these precedents, but this much is clear.
As for Section 8(b)(2) and derivative 8(b)(1)(A), the violation of 8(a)(3) which
the union is supposed to have caused or attempted to cause involves the encourage-
66 Brewery and Soft Drink Workers, Local Union No. 163 (Stegmaier Brewing Company),
134 NLRB 99; Bricklayers, Masons and Plasterers' International Union, etc., Local 28
(Plaza Builders Inc.), 134 NLRB 751 ; Bricklayers, Masons, etc., Local No. 2 (Wilputte
Coke Oven Division Allied Chemical Corporation), 135 NLRB 323; and International Hod
Carriers, etc., Local 7 (Yonkers Contracting Co.), 135 NLRB 865.
8'+137 NLRB 1023, enforcement denied 317 F. 2d 246 (C.A. 2).
es Supra.
09 Millwrights' Local Union 1102, etc. (Planet Corporation), 144 NLRB 798.
70 Local Union No. 18, International Union of Operating Engineers (Ohio Pipe Line Con-
struction Company), 144 NLRB 1365.
71 New York Typographical Union Number Six (New York Times), 144 NLRB 1555, affd.
sub nom. Cafero v. N.L.R.B., 366 F. 2d 115 (C.A. 2).
73 International Typographical Union No. 87 (Houston Chronicle Publishing Company),
145 NLRB 1657.
73Local Union No. 377, Plumbers (Townsend and Bottum, Inc.), 147 NLRB 929.
74 Independent Metal Workers Union Local No. 1 (Hughes Tool Company), 147 NLRB
1573. On this point, in its special concurrence, a Board minority found the union's con-
duct violative, not on racial grounds, but because it was based purely on con^'derations
of union membership. (The grievant was a member of one local, comprised of 'Negro em-
ployees ; the respondent was a local composed of white employees.)
75Local 1367, International Longshoremen's Association (Galveston Marissme Associa-
tion, Inc., et al.), 148 NLRB 897. Here again, a partially dissenting minority relied only
on the fact that union-membership considerations underlay the respondent-onion's
motivations.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment (or discouragement) of union membership, but not every encouragement is
unlawful. The mere acquiescence in or capitulation to a request/demand of a
union is not unlawful encouragement per se. The test is the true purpose or real
motivation of the union in pressing or asking for the action 76-does it seek thereby,
purely and simply, to build up the desire to join or maintain union membership or
to adhere to union procedures? And/or is the stated objective of the union's con-
duct so arbitrary, invidious, or'irrelevant as to indicate that it is a mask for encour-
aging membership or membership regularity?
There is some indication, in these precedents, that, in order to be lawful, the
working condition which the union seeks to effectuate must be more than the prod-
uct of a union rule-it must be a condition incorporated into a contract between
employer and union. At least, this was the fact in most of the cases cited above
in which violations were not found. But the union-sought condition was not part
of collective-bargaining contract in at least two of the cases,77 and the Board has
never seen fit to discuss the subject. It seems to me that, since the best test is the
union's true purpose or real motivation, an employer's advance agreement should
not be permitted to 'make the difference, one way or the other. Certainly, in an
industry such as this, wherein contracts between union and employers are the excep-
tion rather than the rule, this would be an unrealistic requirement.
In the instant case, there is no objective, either expressed or implied by the cir-
cumstances, that employment be conditioned on union membership or union regu-
larity as such.78 If there is any illegality, it must be found in the arbitrary, the
invidious, or the irrelevant.
Local 10 argues, and I agree, that the Board does not, and should not, substitute
itself for the Union in weighing the wisdom of the stated objective . The most it can
do in this direction is to measure whether the asserted wisdom is, in the light of all
surrounding circumstances, pretextual. Nor-and this is implicit in the Charging
Party's contention that the freeze rule is dictated by "politics"-should the Board
question the wisdom purely because it derives from or for the benefit of a majority
of the union's members; absent evidence of real intent to impose considerations of
union membership or regularity (e.g., by arbitrariness, invidiousness, or irrelevance),
it would seem that the exercise of discretion in favor of majority interests should
not be deemed unlawful.
The parties presented quite unscientific and undocumented statistics on earnings
in the industry in Chicago. I am not prepared to base any findings on them, except
to accept the parties' substantial agreement that less than 15 percent of Local 10's
members "make a living" in music; the rest, we are told, must fill out their income,
or make the most of it, as lawyers, dentists, and in other fields. The Charging Party
concludes therefore that the freeze rule is an evil one-that it is maintained, at the
expense of the "professionals," for the benefit of outsiders; Local 10 concludes
that it is a necessity-that its goal is to obviate the necessity for a musical crafts-
man to go outside his skill in order to eat. A resolution of this issue by me is
unnecessary to the disposition of the case.
Clearly, the freeze rule originated in a desire to spread available work among
Chicago musicians, an objective which the General Counsel does not challenge.
The changes in Local 10's interpretation and enforcement throughout the years,
detailed above, resulted, I am told, from recurring considerations of changing cir-
cumstances as they leave on work-spread needs; and I am told that future considera-
tions, and, perhaps, changes, will take place when called for. In my judgment, the
General Counsel has not successfully impugned Local 10's motivation in its main-
tenance, interpretation, or enforcement of the freeze rule. In terms of past prece-
dents, in this record, the General Counsel has not demonstrated by a preponderance
of the evidence that Local 10's actions have been based on invidious or irrelevant
considerations.
Nor has the General Counsel proved, by a preponderance of the evidence, that
Local 10's enforcement has been arbitrary. As I have detailed in "Disparate
enforcement of the freeze rule," supra, Local 10 had reasons for each of its devi'-
'a As displayed either by evidence of specific intent or by the inherent nature of the
Act. Radio Ofcers', supra.
71 Bricklayers , Local No. 2 (Wilputte Coke Oven Division Allied Chemical Corporation),
supra; International Typographical 'Union No. 8 7 (Houston Chronicle Publishing Com-
pany), supra.
78 During the hearing, the General Counsel contended, inter alla, that the symphony
players, in effect, constituted a separate union and that exempting them from the freeze
rule was based , in part, upon union considerations . The contention was abandoned in
his brief. At any rate, I find that symphony players do not constitute a separate union.
FOSDAL ELECTRIC 85
tions from the application of the freeze rule to all musicians. Its interpretations, I
find, are not arbitrary within the meaning of the applicable precedents.
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
1. Shield, Belloc, and Palmer are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and Martin M. Rubenstein is an agent
of Shield.
2. No other person involved herein is an employer engaged in commerce within
the meaning of Sectioii2(6) and (7) of the Act.
3. Local 10 is a labor organization within the meaning of Section 2(5) of the
Act.
4. Neither Shield, its agent, Rubenstein, nor Local 10 has engaged or is engaging
in unfair labor practices as alleged in the consolidated complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I rec-
ommend that the consolidated complaint be dismissed in its entirety.
Fritchof A. Fosdal and Adeline M. Fosdal, d/b/a Fosdal Electric
and Electrical Workers Union No. 494, International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 30-CA-96.
June 18, 1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions, the brief, and the entire record in this case,
and hereby adopts the findings," conclusions 2 and recommendations
of the Trial Examiner.
i We correct the following inadvertent errors in section III, C, of the Trial Examiner's
Decision, which are relevant but do not affect the conclusions herein:
The employees signed union authorization cards on May 26 and not April 26 as in-
dicated in the first sentence of the first paragraph and the first sentence of the last
paragraph. ^ e union cards were signed by "Anderson and Granger" and not "Ander-
son and Mock" as indicated in the fourth sentence of the fourth paragraph.
2 Unlike his colleagues, Member Brown believes it unnecessary and inappropriate to con-
st ler any representations the Union's solicitor may have made or what the employees may
have been told, since the employees' signatures on the cards designating the Union as their
bargaining agent are sufficient to establish the majority status of the Union at the time
it requested recognition.
153 NLRB No. 2.