Rochester Musicians Assn.

National Labor Relations Board - Board Decisions

Apr 7, 1976

223 N.L.R.B. 720 (N.L.R.B. 1976)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rochester Musicians Association Local 66 affiliated
with the American Federation of Musicians (Civic
Music Association ) and Dr. Samuel Jones . Case 3-
CB-1939
April 7, 1976
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO , AND WALTHER
On December 1, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Decision on
Remand in this proceeding.' Thereafter, the Respon-
dent filed exceptions and a supporting brief, the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision, and the Charging
Party filed an answering brief to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision on Remand in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge, with the additions noted below, and to adopt
her recommended Order.
We agree with the Administrative Law Judge that
Jones was a representative of Civic Music Associa-
tion for the purpose of adjusting grievances because
of his role in the handling of seating complaints.
However, evidence recited by the Administrative
Law Judge also demonstrates Jones' authority to
handle complaints in matters arising under the con-
tract or concerning working conditions while on tour
as well as disputes arising in the day-to-day opera-
tions of the orchestra. In addition, it appears from
the Administrative Law Judge's Decision that Jones
plays a role as a consultant in bargaining matters
which also qualifies him as a representative for col-
lective-bargaining purposes within the meaning of
Section 8(b)(1)(B). Although occurring subsequent to
the union charges brought against him, Jones' parti-
cipation in the June 1972 meetings between the
Union and orchestra committee serves to demon-
strate the continuation of his active role in collective-
bargaining matters.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Order of the Administrative Law Judge and hereby
orders that the Respondent, Rochester Musicians
Association Local 66, affiliated with the American
Federation of Musicians, Rochester, New York, its
officers, agents, and representatives, shall take the
action set forth in the Board's original Decision and
Order.
1 The Board 's Decision and Order in the above -entitled proceeding ap-
pears at 207 NLRB 647 (1973). The court denied the Board 's petition for
enforcement and remanded the case to the Board for further action consis-
tent with its opinion . 514 F.2d 988 (C.A. 2, 1975). On June 5, 1975, the
Board reopened the record and remanded the proceeding "for the purposes
of taking evidence in accordance with the Court's remand."
DECISION ON REMAND
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: On No-
vember 29, 1973, the Board issued its Decision and Order
holding that Respondent, Rochester Musicians Associa-
tion, Local 66 (the Union), violated Section 8(b)(1)(B) of
the Act' by trying and fining Dr. Samuel Jones, conductor
of the Rochester Philharmonic Orchestra and a member of
Respondent Union, for his having effectively recommend-
ed that one member of the orchestra be placed on proba-
tion and that the contracts of four other members of the
orchestra not be renewed. At the original hearing leading
to the Board's Decision, Respondent admitted that Jones
was a supervisor within the meaning of Section 2(5) of the
Act. Because of that concession, relying on prior Board
decisions, I, serving as the Administrative Law Judge, ex-
cluded evidence concerning the nature of Jones' authority
and responsibility. The Board affirmed my rulings and De-
cision. 207 NLRB 647. On the Board's petition for enforce-
ment, the Court of Appeals for the Second Circuit held
that it was error to exclude the proffered evidence and
remanded the case to the Board for further hearing and
decision. On June 5, 1975, the Board reopened the record
and remanded the proceeding "for the purposes of taking
evidence in accordance with the Court's remand" and a
supplemental decision by an Administrative Law Judge.
514 F.2d 988 (1975).
Pursuant to due notice, a hearing pursuant to the
Board's remand order was held before me in Rochester,
New York, on September 15, 1975. All parties were repre-
sented by counsel and were afforded full opportunity to be
heard, to present oral and written evidence, and to examine
and cross-examine witnesses. The parties waived oral argu-
ment. Since the hearing, the General Counsel has filed a
brief and counsel for the Charging Party and for the Re-
spondent have filed brief statements of position in the form
of letters addressed to me.
Upon the entire record, together with careful consider-
ation of the brief and statements of position, and careful
observation of the witnesses, I make the following:
lations Board adopts as its Order the recommended 1 National Labor Relations Act, as amended (29 U.S.C. § 151 el seq.).
223 NLRB No. 99
ROCHESTER MUSICIANS ASSN. 721
FINDINGS OF FACT
1. THE ISSUE
So far as here relevant , Section 8(b)(I)(B) provides that it
is an unfair labor practice for a union "to restrain or coerce
... an employer in the selection of his representatives for
the purposes of collective bargaining or the adjustment of
grievances ." The original Decision in this case proceeded
from the view previously established by the Board that any
statutory supervisor qualified as a "representative" within
the quoted provision. The court of appeals, however, con-
struing the Supreme Court's decision in Florida Power &
Light Co. v. International Brotherhood of Electrical Workers,
Local 641, et al., 417 U.S. 790 (1974), held that union disci-
pline of Jones could be held violative of Section 8(b)(1)(B)
only if Jones had authority to adjust grievances or bargain
collectively on behalf of the employer. The core of the
court's opinion was:
Here the Union disciplined Jones for performing a su-
pervisory task. The missing link in the record, howev-
er, is that it fails to disclose that Jones had the authori-
ty to adjust grievances . But there is nothing before us
to indicate that union discipline in such a case con-
cerns the interference with grievance adjustment or
collective bargaining that is at the core of § 8(b)(1)(B).
The record does not establish that such union action
can "adversely affect [Jones 's] conduct in performing
the duties of . . . [a] grievance adjuster ," as required
by Florida Power to establish a violation of
§8(b)(1)(B), since Jones has not been shown to have
the authority to perform these duties. [514 F.2d 988,
992.]
As said by the Board in its remand order, the court "re-
manded the case to the Board for further hearing on the
question of whether Supervisor-Conductor Jones possessed
the authority to adjust grievances or to engage in collec-
tive-bargaining."
The court, however, expressly left open "the issue of the
continued viability of Oakland Mailers," 2 which holds, in
effect, that a union may not discipline an employer's statu-
tory representative for his conduct in interpreting the par-
ties' collective-bargaining agreement . As the court noted,
the Board has adhered to Oakland Mailers since the Su-
preme Court's Florida decision . International Union of Op-
erating Engineers, Local Union No. 428, AFL-CIO (Mercu-
ry Constructors, Inc.), 216 NLRB 580 (1975); Teamsters
Local No. 524 (Yakima County Beverage Company, Inc., 212
NLRB 908 (1974). The Board has reaffirmed that view
since the court's decision in the present case. Wisconsin
River Valley District Council of Carpenters (Skippy Enter-
prises, Inc.), 218 NLRB 1063 (1975); Warehouse Union Lo-
cal 6, Longshoremen's (Associated Food Stores, Inc.), 220
NLRB No. 123 (1975).
The Oakland Mailers rule has been understood as appli-
cable to the performance of any supervisory function. New
Mexico District Council of Carpenters et al. (A.S. Horner,
'San Francisco -Oakland Mailers' Union No. 18 International Typographi-
cal Union (Northwest Publications , Inc.), 172 NLRB 2173 (1968).
Inc.), 177 NLRB 500, enfd . 454 F.2d 1116 (C.A. 10, 1972).
Thus the Board 's rule can be stated as being that Section
8(b)(1)(B) prohibits union discipline of a supervisor-mem-
ber for performing any significant or substantial superviso-
ry function.
Accordingly , under the remand order , in conjunction
with subsequent Board decisions , the only issue to be re-
solved in the present Decision is whether , in the words of
the Board 's remand order, "supervisor -conductor Jones
possessed the authority to adjust grievances or to engage in
collective-bargaining ." If the answer to that question is in
the negative , the Union did not violate Section 8 (b)(1)(B);
if the answer is in the affirmative , the Union did violate
Section 8 (b)(1)(B).
II. THE EVIDENCE
Jones first became associated with the orchestra in 1965
as assistant conductor under Conductor Lazlo Somogyi.
Jones then became associate conductor in 1968 and then,
in 1969, when Somogyi left, Jones took over as resident, or
acting, conductor. As of February 1, 1971, he was given the
title of conductor. At least as resident conductor and then
as conductor, he had full authority over and responsibility
for all musical aspects of the orchestra, but essentially no
nonmusical , administrative functions.
Throughout the years, the employer, Civic Music Associ-
ation (CMA), has been represented in collective-bargaining
negotiations by an informal negotiating "team" generally
composed of the orchestra's general manager, one or more
members of the board of directors, and counsel. The
Union has been represented by Joseph DeVitt, president
and business agent, possibly other business agents, and
members of the orchestra committee, which consists of five
playing musicians elected by their colleagues. It is undis-
puted that, at least until June 1972, neither Jones nor his
predecessor ever sat at the bargaining table.
As conductor, Jones was frequently consulted by the
CMA bargaining team in its formulation management's
bargaining position as to "questions of artistic matters, mu-
sical judgments." For example, Jones reviewed
management's proposal for the audition procedure which
has been in the collective-bargaining agreements since
1969. And, at the request of Thomas M. Miller, then presi-
dent of CMA, Jones drafted management's policy as to
excused absences for musicians to perform elsewhere than
with the orchestra. That policy, as drated by Jones, is con-
tained in the current agreement. Additionally, it was at
Jones' request that the CMA negotiating team successfully
negotiated for an increase of the permissible length of con-
certs from 2 to 2-1/4 hours.
Jones also has been consulted by management represen-
tatives concerning the question of having component parts
of the orchestra perform without having such performanc-
es deemed to be by the whole orchestra, and concerning
management's bargaining position in that connection.
Jones apparently favored the proposal and helped draft the
3 Management would like to have sections or small groups appear at civic
and similar events for the purpose of giving the musicians greater exposure
and increasing public interest in the Orchestra . An example put forth was
having the horn section perform at civic ceremonies on the steps of city hall.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms. However, to date, CMA has been unable to win the
Union's approval for such a provision.
The collective-bargaining agreement contains no provi-
sion for grievances. It provides for a "Personnel Manager
acceptable to the Union and to the Association." This posi-
tion is substantially similar to that of a union shop steward,
although "[t]he Personnel Manager shall be charged with
protecting the interests of the musicians . . . as well as the
interests of the Association." He is required to see that
union rules are observed and to report infractions to the
Union and the Association. While he may or may not be a
playing member of the orchestra, he must attend all re-
hearsals and performances. As to his position the contract
further provides:
... He shall communicate promptly to the Associa-
tion any personnel matters that may be requested of
him by members of the Orchestra. . . . The Personnel
Manager shall have no jurisdiction over or duties with
respect to contractual matters between the Associa-
tion and any of the musicians . . . , all such matters
to be handled for the Association by its General Man-
ager or by another officer of the Association.
The contract further provides that musicians "shall be
engaged or discharged only by the General Manager of the
Association, or by another officer of the Association." If
the Association wants to discharge a musician during the
season, the personnel manager must notify the Union,
"whereupon the Board of Directors of Local 66 shall be the
final judge as to the legitimacy of discharge." Apparently
there has been only one attempt, unsuccessful, to invoke
the discharge provision.
Nonrenewal of a musician's individual annual employ-
ment contract, however, is differently handled. During a
musician's first season with the orchestra, which usually
begins in September, he is on probation. If his contract is
not to be renewed, he must be so notified by February 1. If
the Association wants to terminate a player after he has
completed a full season, the general manager must notify
him and the Union by February 1 and his termination can-
not be effective until the end of the next season, some 15 or
16 months thereafter. Decisions not to renew a musician's
contract are made on "requests . . . by the conductor and/
or music adviser and/or Association." There is no contrac-
tual provision for review of such decisions.
In September 1971 Jones was invited to attend a meeting
of the Association's board of directors. At that meeting,
which was held while collective-bargaining negotiations
were in process, considerable concern was expressed con-
cerning the quality of the orchestra's performances. Walter
Hendl, director of the Eastman School of Music, who had
recently been named musical advisor of the orchestra,
made a fervent recommendation for a complete review of
the entire orchestra. Hendl and Jones proceeded to make
such a review. As a result, Jones recommended that one
probationary musician not be retained, three tenured musi-
cians not have their contracts renewed, and one tenured
player be placed on a year's probation. Hendl concurred in
Jones' recommendations 4
4 Hendl actually abstained as to one since the person was on the faculty
of the Eastman School.
Notice of the action was sent to the musicians involved
and to the Union in January 1972. DeVitt thereupon at-
tempted to persuade Jones to withdraw his recommenda-
tions, but Jones refused, maintaining that his decisions
were sound.
Thereafter, as set forth in the prior Decision, Jones was
notified on February 28, 1972, that intraunion charges had
been lodged against him for, among other things, having
made his recommendations without seeking prior review
by a union committee. On March 6, the appointed date for
Jones' appearance before the Union's executive board, ad-
ditional charges were filed and, at Jones' request, the hear-
ing was postponed.
Thereafter Jones proposed to the Association that a pro-
cedure be adopted for review of his decisions by a jury of
outside eminent musicians. The Association approved
Jones' suggestion and instructed him, together with his per-
sonal counsel and the Association's attorney, to meet with
union representatives on the matter.
Accordingly, in June 1972, Jones and the two lawyers
met with DeVitt (and possibly one or more other union
business agents) and members of the orchestra committee.
According to Jones, the purpose of the meeting was "to see
if we could not negotiate a review procedure for the partic-
ular situation, in effect, then, to write an addendum to the
contract which would include a review procedure which
had not previously been part of the contract." According
to Jones, the union representatives rejected his review pro-
posal, insisting that any review be done by the members of
the orchestra. Jones further testified that the Union then
withdrew its own proposal and "actually retreated to a po-
sition which excluded any review at all, which indicated
that they simply would not sign a contract for the future,
and would not play until the musicians involved were rein-
stated." DeVitt corroborated Jones' testimony as to this
meeting in material respects. DeVitt conceded that he be-
lieved that the meeting "was a negotiating meeting" in
which the parties "were trying to get a review procedure."
He also indicated that he gave little consideration to
management's proposal because "the only proposal that
[he] was interested in was [his] own." DeVitt testified that
he was "surprised" by Jones' unexpected presence at the
meeting. DeVitt added that he "felt it was particularly un-
fair . . . to have a man on the other side of the table who
was a member of our [Union], who was under charges
... . [T]hat is what disturbed [him]."
No agreement or resolution was reached at the June
1972 meeting. In August Jones was tried in absentia by the
Union's executive board, which imposed a $1,000 fine and
6 months' suspension from union membership. In October
the Union's executive board rescinded the membership
suspension and reduced the fine to $250. However, thereaf-
ter Jones was notified that he would be suspended unless
he paid the fine.
Asked how the Union or a musician could "raise a com-
plaint or a grievance concerning what they may feel is a
violation of the contract," Jones replied that it "was a rath-
er informal process," with the player's talking "to the Or-
chestra, to the personnel manager . . . to the general man-
ager" or to Jones, as conductor. He testified that the per-
sonnel manager would handle "a little problem that could
ROCHESTER MUSICIANS ASSN.
be solved on the spot, but every time a matter of judgment
came up, the problem would immediately be brought to"
Jones.5 Jones further testified that the personnel manager
brought all "matters of judgment" to Jones:
[The personnel manager] sometimes would communi-
cate things directly to the General Manager. If it had
anything to do with musical matters or with the day to
day attendance, operation, . . . that type of thing
would come directly to me. In that case I would be
acting as a representative of the Association, as hap-
pens in any orchestra.
Jones testified that when the Orchestra was on tour 6
there frequently were complaints by the players about heat
or light, either deficient or excessive. He testified that the
players frequently brought their complaints directly to him,
although they sometimes took them to the personnel man-
ager , who, in turn, sometimes brought them to Jones.
He mentioned specifically a concert at a school when the
temperature in the auditorium was uncomfortably cold.
When the musicians refused to perform, Jones exercised
his judgment to delay commencement of the concert for 15
minutes while the engineers increased the heat pursuant to
Jones' requests of the school principal. Jones later indi-
cated that that heating complaint "went to [Jones] and the
Personnel Manager."
Jones further testified that the members of the orchestra
chronically complained about the intensity of the lights at
television performances. According to Jones, he had the
television lights lowered by talking to the engineers.
DeVitt denied that player complaints about such matters
as heat and light were handled by Jones. According to De-
Vitt, Jones would be powerless to obtain any remedial ac-
tion from the stagehands. Complaints about lighting
"would go to the Personnel Manager because the Person-
nel Manager is aware of the trouble with the stagehands,
and General Manager." 7
The evidence as a whole establishes that either the con-
ductor or the personnel manager, or both together, sought
remedies by third parties for player complaints while on
tour.
Players sometimes registered complaints about travel ar-
rangements to Jones. But Jones had no role in making such
arrangements and was thus unable to take any remedial
action.
Each player has an individual, annual contract with the
Association. Such contract, all of which are identical ex-
cept for salaries, provides that the player "will take any
seat or place in the [Orchestra] which the Conductor may
assign to him, and will change such seat or place at any
time and as often as the Conductor may deem necessary."
5 At one point he testified: "Occasionally somebody may complain to the
orchestra committee and sometimes to me and sometimes to the Personnel
Manager and sometimes to the General Manager ." Q. "Sort of find the
handiest ear to voice the complaint?" A. "Yes."
6 Apparently anywhere other than at its regular concert hall.
7 When he was asked if a musician would normally address his com-
plaints about lighting to the conductor, Devitt replied: "No. Lighting, you
know stage hand[s], nobody goes there. That is God. That is even higher
than the NLRB."
723
Jones testified concerning two incidents in which he, as
conductor, rearranged seating in response to complaints.
One concerned a violinist who was reassigned from the
second to the first violin section as a result of complaints
she repeatedly made over a period of years. The other inci-
dent involved an elderly and apparently somewhat eccen-
tric violinist whose position was changed in response to
complaints by other violinists who did not want to sit next
to him, particularly when he was required to turn pages.
While acknowledging that the conductor is the final,
nonreviewable arbiter of seating within the orchestra, De-
Vitt testified that he, as the union business agent, had been
called upon to handle several complaints or "grievances"
about seating. However, DeVitt frankly acknowledged that
any aggrieved player "would be a fool" if he did not initial-
ly discuss the matter with Jones, the conductor.8
Jones maintained that in the day-to-day operations of
the orchestra complaints or disputes frequently arose
which required his intervention. As an example, he referred
to an incident in which, during a rehearsal that Jones did
not conduct, a string player berated the concert master for
not having met his responsibility to have the bowing prop-
erly marked on the music. Feeling that his authority had
been improperly challenged, the concert master summoned
Jones, who went to the scene and ascertained the facts.
Jones could not recall exactly how the matter was settled
except that "the other member of the orchestra was talked
to," apparently by the general manager, on Jones' report.
ill. DISCUSSION AND CONCLUSION
The General Counsel maintains that Jones was an
employer's "representative for the purpose of collective
bargaining" because (1) he helped formulate manage-
ment's bargaining positions and (2) he actively participated
in the June 1972 meeting held with union representatives
for the purpose of negotiating a review procedure to cover
the contract non-renewals and the probation action an-
nounced in January of that year and to be included in
subsequent agreements. Since, as hereafter set forth, I find
that Jones was a "grievance adjuster" within the ambit of
Section 8(b)(1)(B), it is unnecessary to resolve the close and
difficult questions inherent in the General Counsel's posi-
tion. Similarly, it is unnecessary to answer the equally trou-
blesome question whether Jones was an employer "repre-
sentative for the adjustment of grievances" insofar as he
sought to have third parties remedy conditions, such as
heat and light, of which the players complained.
One thing is clear beyond dispute, namely, that Jones
8 On cross-examination Devitt testified:
Q. On any of these complaints that you had on seating, were you
aware of, at all, that these matters had been brought to the attention of
the conductor?
A. I assumed in this particular area that it would have been a real
mistake if they hadn't.
Q. It would also be your opinion that, prior to coming to see you,
that individual would have to go to see the Conductor first about seeing
whether or not she or he could adjust the seating with the conductor?
A. It would be a fool if you didn't.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had and exercised authority to handle complaints concern-
ing seating in the orchestra . Nor can it be seriously ques-
tioned that seating is an important working condition for a
professional musician . Indeed, it appears to be of such im-
portance that it is one of the relatively few terms and con-
ditions spelled out in the players' individual contracts? It is
clear that "[t]he handling of minor complaints other than
as formal grievances . . . does constitute the adjustment of
grievances within the meaning or , Section 8(b)(I)(B). New-
ark Newspaper Pressmen 's Union No. 8 (Newark Morning
Ledger Co.), 194 NLRB 566, 570 (1972).
Accordingly, on the basis of his admitted final authority
over players' seating, I find that Jones was a statutory rep-
resentative within the purview of Section 8(b)(1)(B) of the
Act. Thus I find that Respondent violated that statutory
provision by subjecting Jones to union discipline under the
circumstances here involved.10
CONCLUSIONS OF LAW
In view of the foregoing findings of fact, the conclusions
of law heretofore made by the Board in its Decision and
Order of November 29, 1973, herein (207 NLRB 647), are
hereby adopted in toto.
Accordingly, in view of the foregoing findings of fact
and conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby adopt the Order of the Board dated No-
vember 29, 1973, in toto as the recommended Order of this
Decision and incorporate the name by reference herein.
9 Such individual contracts supplement the collective-bargaining agree- 10 It should be repeated that, as already held by the court, Jones was fined
ment . Devitt testified that he , as the union president and business represen- for performing supervisory functions, i.e. not for performing rank-and-file
tative , services such individual contracts. work. I am proceeding on the Board's post-Florida Power adherence to the
Oakland Mailers rule. See discussion supra.