Federacion de Musicos de Puerto Rico

National Labor Relations Board - Board Decisions

Dec 5, 1979

246 N.L.R.B. 782 (N.L.R.B. 1979)

I)E( ISIONS O[ NA I IONAI. ABO()R RLA I I)NS BARI)
Federacion de Musicos de Puerto Rico, IA)cal 468,
American Federation of Musicians, AFL,-CIO and
Pat Mills, d/h/a Pat Mills and Company and Na-
tional Association of Orchestra leaders. ('Cases 24
CC 213 and 24 CF 6
December 5, 1979
DECISION AND ORI)ER
BY CHIAIRMAN FANNIN ANI) MIM lKRS JI NKINS
ANI PNIII.()
On August 10. 1979, Administrative Liaw Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of' Section 3(h) 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 brief
and has decided to affirm the rulings. findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Federacion de Musicos de
Puerto Rico, Local 468, American Federation of' Mu-
sicians, AFL- CIO, its officers, agents, and representa-
tives, shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law Judge.
APPFINDIX
Not)I( I 1() MI:MI-RS
P s I I ) 1Y ORI)IR ()O 1111
NAIIONA .AIBOR RlI All()NS BARD
An Agency of the United States (iovernment
Wil WII. NOI threaten, coerce, or restrain ElI
San Juan Hotel, or any other employer engaged
in commerce or in an industry affecting com-
merce, where an object thereof is either (I) to
force or require El1 San Juan Hlotel or any other
employer to enter into or give effect to an agree-
ment prohibited by Section 8(e) of the Act, or (2)
to frce or require self-emplo ed contractors of
El San Juan Hlotel or other employer or self-em-
ployed person to join the Union or other local of
the American Federation of Musicians or other
labor organization, or (3) to force or require 1-El
San Juan lotel to cease doing business with its
self-employed contractors.
W': 11 I Nol enter into, give efHect to. or en-
force the agreement, derived from article 13, sec-
tion 5 of the American Federation of Musicians
constitution and hvlaws, found unlawful under
Section 8(e) of the National I abor Relations
Act, as amended.
FEDERA('ION DE MusIo'os DE PUERTO Rico,
LO)(CAI. 468, AMERICAN FEDERATION O()F MU-
SICIANS, AFL CIO
1)1:('1 SION
ItiRIHi, t F. PI.AINI:. Administrative l aw Judge: Re-
spondernt L1ocal 468 of the American Federation of' Musi-
cials (tilhe Union or Respondent) has been charged with
violations of Sections 8(b)4)(ii)(A), (B), and 8(e) of the Na-
tional Labor Relations Act, as amended (the Act).' These
charges stem from the contractual relationship that existed
between the Union and 1l San Juan Hlotel, a member of the
Puerto Rico Hlotel Association, the collective-bargaining
agency for group of hotels, and the conduct of the Union
between September 21 and 23, 1978, in allegedly seeking to
force a nonunion group olf musicians. Pat Mills and ('om-
pany, who were not residents of Puerto Rico, to join the
American -Federation of' Musicians (AF M) in order to con-
tinue pertorming at Ell San Juan Hlotel, and coercing or
attempting to coerce the hotel to enforce an agreement that
only AFM members may perform at the hotel and to cease
doing business with the nonunion group.
'The Union contended at the hearing that it sought onl
to enfiorce a proision iof the collective-hbargaining contract,
w herein the hotel agreed to enmplo a mniinimum of 18 musi-
cians per )ear , ho were members oft the local Union (and
therchb residents of Puerto Rico), and to presetve the jobs
Ifor the local union melmbers.
'he case was hea;rd in Halto Re. Puerto Rico, on D)e-
cember 18 and 19. 1978. Neither side filed briefs, but the
General ('ounsel presented an oral argument at the conclu-
sion of' the hearing.
Ipon the entire record of the case, including mn observa-
tion of' the witnesses and consideration of the oral argu-
mlent, I make the following:
[l l)ls,(;S )} FH,(
I. R)I( lI ()N
StilltorY.' (Counsel for Respondent Ulnion contended that
the statutorN jurisdiction olf the Board under the Act did
not app' to Puerto Rico. notwithsta;lding his stated aware-
niess of prior cases holding that the Act applied both when
Puerto Rico was a territorsy f the l 'nited States and since it
has become comimonwealt h in 1952. See , I..R.B. v. .e-
he conslhdaild clrnplail ils ued Octoher 27. 1978. n charges filed
Seplmniber 22 and October 3. 1978.
246 NLRB No. 129
782
IFt)t:RA('ION )|- MtSI(OS ) P [FR IO RICO7
curis \National Lie Insurance (orpaty. 494 .2d 336 (Ist
Cir. 1974).
Union counsel suggested, without explaining or docu-
menting the suggestion, that special "political" relation-
ships exist between the United States and the C(ommon-
wealth of Puerto Rico and the people of Puerto Rico which
in connection with economic needs of Puerto Rico. make
the Act inapplicable there. He hinted at his meaning, again
without documentation. when he claimed that a 1978 reso-
lution of the United Nations General Assembly had "re-
versed" the commonwealth status of Puerto Rico hb declar-
ing (he said) "that Puerto Rico's political status has not
been decided and that it should be decided as soon as pos-
sible."
Assuming that union counsel has correctly described the
resolution and the source, on its face it appears to be di-
rected to the concerned political bodies of the United
States, the President and the Congress. and perhaps also the
Governor and legislature of Puerto Rico. More impor-
tantly, for purposes of this case, while the United Nations
Charter was adopted by the United States under the treaty-
making power, the resolutions or declarations of such or-
gans of the United Nations as the General Assembly do not
have self-executing effect in the law of the United States:
and, when such resolutions or declarations relate to the
United States directly or multilaterally, they are deemed to
be addressed to the political branch of the government, in
this case the President or the Congress or both. Sei Fujii v.
State of California. 242 F.2d 617, 619 622 (Cal. Sup. Ct..
1952), relating to United Nations Charter provisions: Hiroi
v. Immigration and Naturalization Service, 343 :.2d 466.
468 (2d Cir. 1965). relating to United Nations Charter pro-
vision: Diggs v. L. Richardson. 555 F.2d 848. 851 (D.C. Cir.
1976), relating to a United Nations Security Council resolu-
tion.
The statutory jurisdiction argument is without substance.
Operational Pat Mills and her husband Peter I.aJeunesse
are individual proprietors, doing business under the trade
name of Pat Mills and Company, maintaining an office and
place of business with its booking agent and manager in
West Nyack. New York. They are engaged in providing
musical entertainment to hotels, night clubs, and other
commercial enterprises in and out of the State of New
York, including such places in Pennsylvania, Rhode Island.
Florida, and Puerto Rico.
According to the uncontested testimony of Pat Mills. in
1978 Pat Mills and Company grossed revenues in excess of
$90,000 for musical entertainment services performed for
commercial enterprises outside the State of New York. She
further testified that the revenues for 1977. for services per-
formed outside New York, were similar.
Pat Mills and Peter LaJeunesse are and have been, at all
times material, self-employed persons engaged in commerce
within the meaning of Sections 2(1). (6), and (7). and
(8)(b)(4) of the Act.
El San Juan Hotel Corporation. doing business as El San
Juan Hotel. is a Puerto Rican corporation maintaining its
principal office and the hotel, for providing lodging food.
and entertainment, in the city of Carolina, Puerto Rico.
In the year prior to issuance of the complaint, which is
representative of annual operations, El San Juan Hotel
grossed revenues in excess of 5(00000 and caused to be
delivered to it from points outside Puerto Rico flodstulls
and other goods valued in excess o $50,01).
El San Juan Hotel is and has been, at all times material
an employer engaged in commerce within the meaning of
Sections 2( ). (2). 6). and (7). and 8(b)(4) of the Act.
IThe tUnion is and has been. at all times material. a labor
organization within the meaning of Section 2(5) of the Act.
11. 1111: i NI AIR lABOR ('RA( ( S
A. The Pcrtinent BRsines O)Lperalionlv
Pat Mills and Company is an unincorporated instrumen-
tal musical group that in September October 1978 com-
prised Pat Mills (LaJeunesse), her husband Peter a-
Jeunesse. five other musicians, and a lighting operator. The
group's principal office was in West Nack, New York.
where its manager and agent for securing jobs, Herb Pa-
loft: was located.
The group was usually hired for providing entertainment
at hotels for a term of weeks and was paid a eekll lump
sum stipend (usually plus travel. lodging. and food dis-
counts), from which stipend Peter and Pat LeJeunesse paid
the other musicians and the lighting operator, paid their
manager his commission percentage, and retained the hal-
ance as their remuneration. Peter and Pat set the rates of
pay for. and hired, fired. or laid off. the other musicians and
determined the music to be played.
In July 1978 Pat Mills and Company contracted with ilI
San Juan Hotel for a 4-week engagement, scheduled to
commence August 25, plus an additional 4 weeks at the
option of the hotel if exercised at the end of' the first week.
See artist engagement contract dated July 3 1. 1978. General
Counsel's Exhibit G( 2hb. The group was to perform in El
('hico cocktail lounge of the hotel, and did, but actually
started September 6. The hotel exercised the option to ex-
tend the time of their sta. and the group performed until
October 29. 19 78 .just a few daN3s short of 8 calendar weeks
from the start.
El San Juan is one of the larger hotels in Puerto Rico.
According to its general manager, Stuart Waters, the hotel
grossed in excess of$l million in 1977, and again in 1978. It
carries an average of 800 employees and has 10 restaurants
and bars. The hotel uses musicians. In the hotel night club.
Tropicoro. there is an orchestra of between I I and 13 musi-
cians: in El Chico lounge. depending on the size of the
group under periodical contract, there are from 5 to 10 mu-
sicians: and in the Right Knight lobby bar there are two
musicians.
General Manager Waters was responsible for all day-to-
day operations of the hotel, including purchases and the
hiring of employees. Waters testified that he answered to
Hlotel President Sam Schweitzer but also responded to and
consulted with the chairman of the board of El San Juan
Hotel Corporation ouis Puro, who has held that position
for over 17 \cars and continued to hbe active in phases of the
hotel management. One of chairnman Puro's operational
'functions was contracting for the musical groups that per-
formed in the hotel, and he testified that he w as responsible
for booking Palt Mills and Compans fr 1:l Chico lounge
through a New York booking agent. ed Purcell.
783
DI)('ISIONS OF NATIONAI. IABOR RIL.ATIONS BOARI)
B. Union Relationships
El San Juan was one of' the hotels in the Puerto Rico
Hotel Association bound to the multiparty collective-bar-
gaining contract with Local 468, the Puerto Rican Local of
the American Federation of Musicians. The contract cur-
rent in September 1978 was a 3-year agreement from I)e-
cember 1, 1975, to November 30. 1978.See General Counsel
Exhibit GC 2a, which, according to Union ocal President
Angel Nater, was essentially a renewal of prior contracts
going back about 15 years.
Under the union contract, El San Juan, as a group I
hotel, agreed to employ annually not less than 18 musi-
cians, members of Local 468. See Exhibit GC-2a, section 8,
and schedule B. par. I.
Section 7 of the contract also incorporated by reference
and made part of the agreement the provisions of the con-
stitution and bylaws of the American Federation of Musi-
cians, to the extent that their inclusion and enforcement as
part of the contract was not prohibited by an existing and
valid commonwealth or Federal law. In this connection,
article 13, section 5. of the American Federation of Musi-
cians constitution and bylaws provides that: "A member of'
the Federation cannot play with . . . non-members in the
jurisdiction of Ithe] local or of the Federation on competi-
tive engagements unless it be with the consent of the Feder-
ation. ... Engagements are considered competitive if musi-
cians receive pay for their services...."
According to General Manager Waters, the musicians
(ranging in number from II to 13) who played in the
Tropicoro night club of the hotel: and the two musicians
who played in the Right Knight bar were members of'
Union Local 468 AFM; and the predecessors of Pat Mills
and Company in El Chico lounge, going back to at least
1974, were also AFM members. When the groups were
nonresidents of Puerto Rico. such as the Ken Hamilton
group out of New York, the musicians were members of the
New York City AFM Local 802 or some other mainland
AFM local; when they were resident groups, such as the
Rafe Diaz group, the musicians were members of Respon-
dent Local 468. The AFM affiliations were shown on the
contracts preceding the Pat Mills and Company contract.
See General Counsel Exhibit GC 3.
Pat Mills and Company was essentially a nonunion
group and was so viewed by Pat Mills herself and by Union
Local President NAter. Her husband Peter. said Pat Mills.
was a member of an allied musicians union: and Nater
indicated that, after he had challenged them and the hotel
management on the issue of the group's nonunion member-
ship, he learned (by his own devices) that two musicians in
the group were members of the American Federation of
Musicians. Nevertheless, the majority of the eight compris-
ing the group were not AFM members, and their contract
with the hotel showed no AFM or other union affiliation.
See Exhibit GC-2b.
C. The Union Actions, September 21 23. 1978
Union Local President Nater testified that about 2 weeks
after the Pat Mills group started its engagement at El San
Juan Hotel the union steward at the hotel informed him
that the group did not comprise members in the Union or
have AFM affiliation.
Nfiter further testified that he telephoned hotel hoard
chairman Puro's office and asked his secretary to send Pat
Mills and her musicians to him with a copy of their engage-
ment contract. The secretary said she would and did. This
was on Thursday afternoon, September 21. 1978. Accord-
ing to Pat Mills, at about 3 p.m. their afternoon rehearsal
was interrupted by the secretary telling them to see Union
Local President Nater to have their contract approved, so
that they could continue to work.
Pat Mills and husband Peter immediately went to see
Union President Niter. who asked to see their contract.
which they produced. Hie asked if they were AFM mem-
bers. Peter LaJeunesse answered no. that he was a member
of the Allied Musicians Union. Nater telephoned the hotel
and spoke to someone in Spanish, according to Pat Mills.
When Nater completed the phone conversation, said Pat
Mills. he turned back to Pat and Peter and told them that
the hotel had violated its contract with the Union, that the
hotel was not allowed to hire musicians who were not mem-
bers of the American Federation of Musicians. As Ndter
said he phrased it, he told them that members of his organi-
zation, under the constitution and bylaws, could not alter-
nate with members of any other labor organization or non-
members of the AFM. Nater further told them, said Mills,
that the hotel had one of two choices either pull the Pat
Mills group out of the hotel and keep the AFM musicians
working or, if not, he. Niter. would pull the AFM musi-
cians out of the hotel.
Pat Mills and Peter returned to the hotel and found a
message to see General Manager Waters. Waters testified
he had already been called by Union President Niter, who
informed him that the musicians playing in El Chico lounge
were not members of the AFM Union, and that if they did
not join he would have all union musicians walk out of the
hotel. Waters said he promised to get back to Nater. Ac-
cording to Waters and Mills, Waters told her and Peter
LaJeunesse that they could avoid problems for the hotel
and everything would be fine if they and their group would
join the Union. Mills said they did not want to join the
Union. but in any event she would have to talk to their
manager in New York. Mills tried to reach her New York
manager. Payloff. without success. Waters then obtained a
phone agreement from Nater that the Pat Mills group could
work that night without a union walkout if' the whole Pat
Mills band would appear at the union office at 10 a.m. the
next day, pay their initiation fees and dues, and join the
Union.
That same night, September 21, Pat Mills reached her
New York manager, Payloff. whose initial reaction was that
the group should join the Union and take the money out of
his commission.
The next morning, Friday, September 22. Pat Mills
called Nter at 9:15 a.m. to inquire as to what her group
had to do to continue working at the hotel. Nater told her
they would all have to come to his office, bring the initi-
ation fees, and join the Union. Nater told her they would be
required to join the New York Local 802. American Feder-
ation of Musicians, not the Puerto Rican Local 468 of
which he was president.
784
It)FRA(ION DI) MtISI('OS 1)1. Pt'KIO RICO()
Niter calculated. for Pat Mills. that sihe would need a
total of about $1.000 to cover the initial pament for the
entire group. She said they did not have the mone then but
would be paid that Friday afternoon whereupon Niter
told her to be at his office at 4:30 p.m. that da ith the
members of the hand and the mnone\.
Pat Mills testified that. because she did nolt ,alnt t join
the Union. she again called her manager in New York to
tell him so. Ile promised to call her back with alns ad ice he
could obtain. He called her hack. and as a result Pat ills
went to the Board Office in Puerto Rico and filed the
charges in this case against the Ulnion, in the afternoon of'
September 22. instead of going to Niter's office.
On Fridas. September 22. at 5 p.m.. Nater called General
Manager Waters at the hotel. asking where the Pat Mills
musicians were. Waters could not reach them at the hotel
and replied that he assumed the? were on their usas to Na-
ter's office.
The next day. Sat rda. September 23. at noon, Niater
again called General Manager Waters and asked it he kneew
that Pat Mills had filed charges with the Board against the
Union. Waters said he knew. whereupon Niter retorted.
"Well tonight either the) play or we play."' Waters pleaded
that it was Saturday night. the hotel was bus\ with a great
many functions, and could not the matter be orked out
over the weekend.
About 5 minutes later. said Waters. Nter called hiil
again to say that the Union was going to file charges against
the hotel for violating the union contract b having onl 13
union local musicians performing at the hotel rather than
the contract minimum of 18 musicians. "If the Board
charges the Union with violations." said Nater to Waters.
"we will pass the charges on to the hotel for hiring the Pat
Mills group for El Chico lounge." Waters told Niter he
would get back to him.
That night. Saturday. September 23. at 7 p.m.. according
to General Manager Waters. Niter came to the hotel and
handed Waters a letter. dated September 23. 1978. stating
that the hotel was in violation of the union contract clause
requiring employment of at least 18 musician members of'
Local 468, noting that for the past 2 weeks there had been
only 13 such musicians employed at the hotel, and calling
attention to a $15.000 delinquency in the hotel's payments
to the union's pension-welfare fund (Resp. Exh. R I).
Waters testified that he told Nater he realized the hotel
was in violation of the contract (although he thought the
number of Local 468 musicians then employed was 16
rather than 13): but because the hotel was full, and because
there were several parties and a show to be perfoirmed. he
asked if they could not come to a solution on Monday when
the lawyers and others would be available. Nter agreed
there would be no problems that night. said Waters.
In this period. General Manager Waters was also in
touch with hotel board chairman Puro. Puro. according to
Waters, divided his time between Puerto Rico and New
York. On Thursday night. September 21, when Niter made
his first threat of a walkout. Waters notified Puro b tele-
phone in New York. On Saturday night. September 23. af-
ter Nater handed Waters the union letter of September 23.
Waters in turn handed the letter to Puro. now back at the
hotel, as Puro was leaving the hotel that night.
I otel hoard chairman Puro t estified that when he was in
New;c York (it! on hursda,. Septenmber 21. General Man-
ager Waters transmitted. hb telephone. Niter's threat to
call the hotel musicians out on strike i Pat Mills and ('om-
pa n did not join the Union: and that on his ( Puro's) return
to I11 San Juan that weekend (Waters said Puro was back
(o l'ridaN . Nater and another union official came to see
himi and toldl hinm directil that. i the Pat Mills group did
not join the UInion ( without saillg hlither l.ocal 468 or
some other A\l:\1 local was meant). the non would strike.
Putro said that on both occasions he telephoned the hotel's
Nevw York booking agent. Purcell. and told him,. and also
told PaN lof 'I. manager for Pat Mills and ('ompanN. who was
in Purcell's office at the time o one ot' these calls. that
unless the Pat Mills group joined the Ilniton he (Puro)
would hae to remove them fronl the hotel: he was not
going to have a strike. According to Puro. Pibloil' assured
him there was nothing to worrN about. tile group had the
right to work. and Puro said he repeated. i the matter was
not straightened out Pat Mills and (Compaln would be re-
mo \ed t'rom tile hotel.
Niter did not contradict the testilions of Mills. Waters.
r Pulo tIhat related to Niter. Indeed. union counsel care-
tul avoided asking Nziter whether he threatened a strike
against the hotel. Naiter admitted that he wrote [Fxhibit R
I. dated September 23. on Saturday. September 23. after he
learned that the hotel was not then emploing IX8 Local 468
musicians. tie also admitted awareness that. at the last re-
newal of' the union contract with the hotel association, a
lawser Ior the hotel association had .warned that the con-
tract contained an illegal "hot cargo''" agreement.
D). IneilUs of I iol/elijti
Secti,)n S lh)(4)((n)(R): When Respondent Union. by its
president. Niter. attempted with threat of strike on Septem-
ber 21 23. 1978. to force eplorer 1l1 San Juan Hotel to
cease doing business with the Pat Mills group because of
the failure or refusal of the group to join the Union. the
Union violated Section 8(hb)(4)(iiB).
ContrarN to Respondent's contention, the object of the
threat to strike was not a lawful "primary" object. i.e.. in-
tended to preserve fairly claimable unit work to unit mem-
hers of Local 468 in the employ of the contracting employer
El San Juan Hotel: rather, the purpose was a forbidden
"secondary" objective. aimed at regulating the labor poli-
cies of other employers. including the self-employed per-
sons at Mills and Peter LaJeunesse. l.ocal 814. Interna-
tional Bro therhood( of 7t' elnisiers, Chauf(if urs. Warehousemen
and Ilpers ol - nicrica (Santini Brothers. Inc.), 208 NLRB
184. 198 (1974). 223 NI.RB 752 (1976). enfd. 355 F. Supp.
()D.C. ('ir. 1973).
The absence of a lawful primary objective to preserve
work tor members of Respondent. Puerto Rican Union l.o-
cal 468. is highlighted by President NAter requiring the Pat
Mills musicians to become members not of the Puerto Ri-
can local 468. but of the New York Cit' Local 802 of the
American Federation of Musicians: and by the lack of
knowledge on President Niter's part when he threatened a
strike of I.ocal 468 musicians at the hotel, on September 21.
22. and at or before noon of September 23. that El San Juan
Hotel had less than the contractually required minimum 18
785
I)8-('ISIONS O() NA I IONAI IABOR RELATIONS BOARI)
I ocal 468 musicians in its emplo. TIhe object of' Union
I ocal 468 in hreatening to strike was calculated to achieve
American lederation of' Musicians objectives elsewhere.
Retail (lerk. I nion Local 770, chrtered hby Retail ('lerA
Ilnter,naliOal A. oi(lalion, .4 f I. ('l() (ughes Markes, Incl.,
land Saha Prescription Pharnac). 218 N RB 680, 683
1975).
Sect ion (c;: Section 8(e), the "hot cargo" provision of
the Act, is a complement of' the "secondary bo cott" prohi-
bitions of' Section 8(b)(4), i effect banning greements to
achlieve a secondarv bo h cott in acdvance. Nat lional IHood-
t ork :1[ai/ai -lclturers A..S.Vociaton v. . .R.B., 386 .S. 612,
634 635 (1967). Section 8(e) makes it an unllair labor prac-
tice to "enter into" any such f'orbidden agreement. 'he vio-
lation of' "entering into" the unlawful agreement, prohib-
ited hb Section 8(e) is established when a respondent,
whether ullion or emploNer reaflirnis the illegal agreement
or insists on its enfircemenl within the Section If0(b) period
of' the Act: natllels within the 6 months prior to the filing
of' tlhe charge. Dan AlihiKine, ( olnpan/ , 137 NIRB 649.
653 657 (1962): i/A Drivers a(id Dairy tnp/ov'eeC, Io( al
,'o. 57 (,5 ' l'/' t .o1ods%, A'1 Diiy ion o / ;aiont/ Dairi Prod-
ur/ts ('orloratiion), 147 NI RB 230. 231 (1964).
Here, the charges were filed September 22 and October 3.
1978, and, well within 6 months of' the filing, the I[nion
reaffirmed, and thereby entered into, the unl;awful provi-
sions of' article 13, section 5. of' the AM-' constitution and
bylaws incorporated into section 7 of the union contract
with El San Juan Hotel, prohibiting members of' the Ameri-
can ederation of' Musicians from performing with non-
members in engagements for pay (see sec. B, above). Thus.
on September 21. 22, and 23. 1978. the Union notified the
hotel and its self-employed contractors, Pat Mills and ('om-
pany, of the necessity to comply with the AFM constitution
and bylaws provision, demanded that the hotel terminate
the contract of the self-employed contractors who refused
to join and pay initiation fees and dues to the AFM Union
and threatened a walkout and strike of the union musicians
to obtain compliance. The violation of Section 8(e) b the
Union was established.'
Section 8(h)(4)(ii)(A): In threatening Pat Mills and Corn-
pany with elimination of their jobs at El San Juan Hotel by
coercing the hotel with threat of strike unless Pat Mills,
Peter LaJeunesse. and their musicians became AFM mem-
bers, the Union violated the first part of Section
8(b)(4)(ii)(A) making it an unfair labor practice to threaten
or coerce any person engaged in commerce or in an indus-
try affecting commerce where an object is to force or re-
quire any employer or self-employed person to join a labor
organization.
Likewise, the Union's coercive insistence, by threat of'
strike, upon the hotel's compliance with the illegal AFM
2 The Union was routinely provided copies of the hotel's contracts with
musical groups, and it was demonstrated that prior to Pat Mills' advent,
when frequently less than 18 musicians of Local 468 were employed. the
Union did not protest the hotel's hiring of mainland bands who were not
Local 468 musicians but were members of other AFM locals.
'The same primary versus secondary object test applies in determining
both 8(e) and 8(b)4) violations. National Woodwork upra at 634 635; and.
as covered under the 8(bX(4ii XB) finding above, the objective of the IJnion's
conduct to obtain compliance with the AFM constitution and bylaws provi-
sion was a forbidden secondary objeclive.
constitution and bylaws provision that would permii only
AFM members to perform at the hotel, was forbidden pres-
sure on I:l San Juan Hotel to reaffirm and reenter its agree-
ment prohibited by Section 8(e)., in violation of the second
part of Section 8(b)(4)(ii)(A). See l.oIalN 814 7'lamser (San-
tii Brothcr) si lqLra.
('oN( I SNS ( L,Sv
1. B coercing El San Jlun l Ihtel s ith threats of strike ot
union musicians on September 21 23, 1978, with an object
of' f;rcing the hotel to enter into and give effect to an agree-
ment prohibited by Sectiotn 8(e) of the Act and with an
object of' flocing selft-employeci contractors of' the hotel to
become members of' the American IFederation of i lusicians
tind with all object of' requiring the hotel t cease doing
business ith self-eniplo ed contractoi s it' the\ do not be-
conic members of the Lion the L nior has engaged in
unftair labor practices in violation f' Section 8b))4)ii)(A)
and B) of the Act.
2. By coercively insisting on September 21 23, 1978,
with threat of strike of' union musicians, that iEl San Juan
Hotel reenter ati give effect to an a greement with the
Union to refrain rom cloing business with self-employed
contractors in contrav ention of' Section 8(e) of' the Act. the
Union has engaged in unfair labor practices in violation of
Section 8(e) of the Act.
3. These unfair labor practices affect commerce wiithin
the meaning of Section 2(6) and (7) of the Act.
[i1 Ri vi )Y
Respondent argued that, because its collective-bargain-
ing contract with the Puerto Rico Hotel Association ex-
pired on November 30, 1978, which was approximately 2
months after the violations occurred in this case, the case
was partially mooted and no remedial order should be is-
sued.
However, a claim by a union that it no longer is engaged
in the specific unfair labor practices or that it no longer
operates under, or has a different contract from. the con-
tract out of which the unfair labor practices arose. does not
moot the controversy or prevent the Board from adding its
sanction against recurrent violation. Local 1976, United
Brotherhood of Carpenters and Joiners oJ' America, A FL and
Los Angeles County District Council of Carpenters and Aa-
than Fleisher (Sand Door and Plywood Co.) v. V. L. R.B., 357
U.S. 93, 98. fn. 2 (1958); N.L.R.B. v. Local nionl 751,
United Brotherhood of Carpenters and Joiners o /America,
AFL-CIO Mengel Companyv] 285 F.2d 633, 638 (9th Cir.
1960).
Accordingly, it will be recommended that the Union
cease and desist from engaging in the unfair labor practices
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
786
'I )RA(I()ON I)E MllSI('OS )F PRTO RICO
ORDFtR'
The Respondent i nion. its otticers. agents, and represen-
tatives. shall:
I. (ease and desist trlom:
(a) Threatening. coercing, or restraining I'1 San Julan
lotel, or an, other employeer etngaged in comnmerce or in an
industr aflecting commerce. here an object thereof is ei-
ther (I) to torce or require Fll San Juan Hlotel or an! other
employer to enter into or give eflect to ait agreement pro-
hihited hv Section 8(e) of the Act, or (2) to Iorce or require
self-emploed contractors ot' 1I1 San Juan Ilotel or other
elnploser or sellt-enploed person to join the n711iOIn or
other local olf the American I ederation of Musicians or
other labor organiiztion. or (31 to force or require II San
Juan lotel to cease doing business with its sell-emplosced
contractors.
(h) Entering into. giing eftect to. or enlfrcing the agree-
4In the e ent n eept:ins are liled a, pr'..l ded h Sec 112 46 o t Ihe
Rules and Regulations tIt the National La hur Relahitos IBoard. the indings.
conclusins. and recommended Order hereln h:il. a, prol ded in Sec 102 48
of the Rules nJd Regulations. he adopted h the Boa ld and hecome ils
lindings. conclusions. and ()rder. and all oblec lons hereto shill he deemed
uallved or all urposes
ment, derived from article 13. section 5. of the American
-tederation o! Musicians constitution and hslaws, f1oun
unlawful under Section 8(e) of the Act.
2. lake the following aftirmative action which Is neces-
sar to effectuate the policies of the Act:
(a) Post in Respondent I 'nion's business otices and
meetling halls copies of the attached notice 1lark;llc " ppen-
di\."' ( opies of sl notice. on 'orm, pro Ided hb the Re-
gional I)irector for Region 24 (Ilato Re, Puerlo Rico).
alter being dul signLed b Resp ondent lnilon's a utlhoried
represeintil'e. sh;all be posted hb it for a pe old ot 6) con-
secuitive das thereat'ter in conspicuous places. ncluding all
places here notices to mem1hers are custoIlmari L posted.
Reasonable steps shall he taken hb the Union to insure th;at
said noticee are not altered. dellced. or cci erl b o ther
material.
Ib) Noti the Regional I)irector tfr Region 24, in writ-
ing. ithin 2(1 da;ls trom the d:Ille of this Order. h; l steps
Respondent I nion has talken to compl here it h
'11 the csenl tIh; Ihi ()rder is enrced h .I Judgmleni t .I t iedJ Si.le
('olrl t1 Appeals, the uord, in the nonce reading -Plted h ()rder ot the
National lhabor Relitons Board" shall read "Po-ted Pursuit .tldgrnlent
ol th I ned State. (ourt ,I ppeal, nfortLing an (Order ot the National
I abor Relatlons Board
787