Associated Musicians, Local 802

ASSOCIATED MUSICIANS, LOCAL 802 23 Associated Musicians of Greater New York, Local 802 , AFM and Ben Cutler. Case 2-CB-4296-2 April 17,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 6, 1966, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions' and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. September 8 and 9, 1966, in New York, New York, on the complaint of the General Counsel' and the answer of Associated Musicians of Greater New York, Local 802, AFM, herein called the Respondent or Union. The issues formulated by the pleadings and litigated at the hearing are whether the Respondent, as the exclusive bargaining representative of the musicians employed as sidemen for single engagements by the Charging Party, Ben Cutler, violated Section 8(b)(3) of the National Labor Relations Act, as amended,2 by unilaterally raising minimum wage scales for these employees and establishing a welfare fund plan requiring employer contributions of $1 per employee per engagement, without first affording Cutler an opportunity to bargain with respect to these matters, and by threatening Cutler's employees who were assigned to perform at a social function with union discipline if they performed on terms less than those prescribed above. At the close of the hearing the parties waived oral argument. Thereafter, briefs were filed by the General Counsel and the Respondent.3 Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF CUTLER Ben Cutler, an individual proprietor doing business in New York City under the trade name and style of Ben Cutler Orchestras, is engaged in providing orchestras, bands, musicians, and related services for single engagements to night clubs, country clubs, restaurants, hotels, and private individuals. During 1965 Cutler received for his single engagement services" approximately $172,650, of which more than $50,000 was derived from engagements performed outside New York State, and approximately $72,000 was derived from single engagement performances for nonretail clients such as hotels, country clubs, and private schools. For the purposes of this case, the Respondent con- cedes, and I find, that Cutler is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. i We do not find adequate support in the record for finding, as the Charging Party requests, that the Respondent, by its overall conduct failed to bargain in good faith. We also note, however, that the complaint herein alleges that the Respondent violated Sec 8(b)(3), not by its bargaining in general, but by specific acts The Rangaire Corporation, 157 NLRB 682, fn 12 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER , Trial Examiner: This proceeding, with all parties represented, was heard before me on ' The original charge was filed on October 1, 1965, a copy of which was served on the Respondent by registered mail on October 4, 1965 An amended charge was thereafter filed on November 3, 1965, and a copy was similarly served on the Respondent the next day 2 Sec. 8(b)(3) of the Act makes it an unfair labor practice for a labor organization or its agents "to refuse to bargain collectively with an employer provided it is the representative of his employees subject to the provisions of section 9(a) " The latter II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This is one of a long series of cases instituted by orchestra leaders, individually and jointly, in the courts and before the Board to test the lawfulness of certain of the Respondent's activities and conduct. As indicated above, the present case is concerned solely with the section states that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment " 9 In view of my disposition of this case, I deny the Respondent's motion for leave to file a supplemental brief " These were principally one-night performances 164 NLRB No. 8 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's alleged failure to discharge its statutory bargaining obligation when, after Cutler's request for contract negotiations, it unilaterally revised its bylaws to raise the single engagements wage scales of musicians, commonly known in the trade as sidemen, and to provide for single engagement welfare fund coverage for these employees. Not involved in this case, as the General Counsel made perfectly clear at the hearing and in the complaint, is the Respondent's overall good or bad faith in its contract negotiations with Cutler. A. The Facts The relevant facts are, for the most part, undisputed and are as follows: Cutler is a professional orchestra leader operating principally in the single-engagement fields Over a period of a year he employs more than 200 different sidemen to play at some 400 functions which he books. About 26 of these sidemen work regularly for him, performing at an estimated 50 jobs a year.? Cutler usually conducts his own orchestra except that when he has simultaneous engagements he employs subleaders to act in that capacity." All the musicians employed by him for single engagements within the Respondent's territorial jurisdiction, which embraces New York City and Nassau and Suffolk Counties, are members of that organization, as is Cutler. The Respondent's membership consists, among others, of sidemen, orchestra leaders, and subleaders and well exceeds 10,000.9 A relatively small number of members are professional orchestra leaders, although sidemen may act in that capacity once or a few times a year when they obtain their own engagements.10 The Respondent readily conceded at the hearing that it "represent[s] the sidemen who have worked over the years for Mr. Cutler for the purposes of protecting them with respect to their wage scales, hours and conditions of employment." Until recently the Respondent admittedly has refused to recognize orchestra leaders as employers of performing musicians in the single-engagement field. In its answer to the complaint, the Respondent states that: throughout its existence, Local 802 [the Respondent] regarded the purchaser of the musical services of orchestras as the employer and the sidemen and orchestra leader as employees, and that this had been the custom and accepted practice in the musical industry throughout the country; that Local 802 has not bargained collectively with the purchasers of musical services or with orchestra leaders on single engagements ... ; that with regard to single engagements, Local 802, acting through its membership or its Executive Board pursuant to its By-Laws, has voted the minimum scales and other terms and conditions below which its members will not offer their services on single engagements . . . .11 On August 6, 1965,12 Cutler sent the Respondent a letter, requesting 'a date to commence collective- bargaining negotiations for a contract covering his regularly employed sidemen whose names he listed. On October 1, the Respondent replied that it was prepared to bargain with him and suggested that he submit contract proposals to facilitate the negotiations before scheduling a meeting. In response, Cutler on October 26 delivered,to the Respondent his written proposals consisting of 40 general subjects to serve as a basis of discussion. In the meantime, in the early part of October, the Respondent's executive board, pursuant to authority, increased by $1.50 per hour the minimum wage scales prescribed in article X of the Respondent's bylaws for sidemen performing on single engagements and inaugurated a welfare fund plan for these musicians supported by employer contributions of $1 per employee per engagement.13 These changes were announced in the October issue of Allegro, the Union's official publication, and were made effective on and after November 15. Under its bylaws,'" members are subject to disciplinary action if they fail to observe the new wage scales and render services below these requirements. The foregoing were the first wage changes made in the single-engagement field since the previous scales were voted in 1959, effective June 15, 1960. Although several years thereafter members had introduced resolutions to revise the wage scales upwards, as provided in the Respondent's bylaws,', the executive board deferred acting favorably thereon, on advice of counsel, because of the pendency of a certain suit instituted in the Federal district court by a number of orchestra leaders.16 Following the dismissal of this suit on May 17, 1965, the executive board proceeded to review the wage scales and concluded that various factors, including the rise in the cost of living and the fees orchestra leaders were charging the purchasers of music, warranted the changes which are 5 Article X of the Respondent 's bylaws defines engagement of less than 1 week as single engagements (sec 1 ) and those of a week or longer as steady engagements (sec 2) 6 It appears that Cutler also has some steady engagements which are not here involved ' Occasionally these musicians may also work for other orchestra leaders Four of them have at times booked single engagements of their own at which affairs they acted as orchestra leaders " In the course of a year , Cutler uses about 50 subleaders who on other occasions perform as sidemen 0 In Carroll v American Federation ofMusicians of the United States and Canada , 241 F Supp . 865, 870 (D C S N Y -),-the court made a factual finding that the Respondent had over 30.000 members who perform musical services as conductors, instrumentalists , arrangers , and copyists 10 Cutler estimated that there are approximately 500 members who are full-time orchestra leaders Max L Arons, president of the Respondent , testified that there are 8 ,000 to 10,000 musicians performing as orchestra leaders , most of whom act in that capacity once or a few times a year In Cutler v American Federation of Musicians of the United States and Canada, 316 F 2d 546, 547 (C A 2), the court noted that 2 percent of the musicians in the Union always act as orchestra leaders and 98 percent do so on some occasions , and play as sidemen on others i i The General Counsel has apparently accepted this statement of the Respondent's historical policy in the single-engagement field It appears that in the steady- engagement field, however, the Respondent has bargained collectively with purchasers of musical services. See Carroll v American Federation of Musicians, supra, 883 12 All dates refer to 1965 unless otherwise specified i3 Before the bylaws were thus amended welfare fund benefits and contributions were limited to the steady-engagement field. 14 Article IV, secs 1(k), (a), (o), (p), (s), and (Wand article IX is Article VIII, secs 2 and 3 i6 Carroll v American Federation of Musicians, supra. This was a suit brought against the Respondent and its parent body for allegedly violating the Federal antitrust laws or common law restraint of trade by reason, among others, of the unions' practices of fixing minimum wage scales of sidemen and the minimum fees leaders may charge purchasers of the music Judge Levet dismissed the complaint on the ground that the unions' conduct fell within the definition of labor dispute in Norris-La Guardia Act and was exempted from the antitrust laws. ASSOCIATED MUSICIANS, LOCAL 802 25 the subject of this proceeding. However, because of the intervening death of the then union president and the resultant intraunion controversy over successorship, final action was not taken until early October, as stated above. On November 22, the parties held their first and only meeting to consider Cutler's proposals which consisted of 40 items whose details were to be worked out later during negotiations and embodied in a collective-bargaining contract. Among others, the proposals provided the following: (4) Agreement upon a suitable schedule of wage scales and overtime rates. (11) Provision for a suitable, reasonable and lawful welfare program for protection of Cutler's employees. (12) Stipulations which exempt Cutler as an orchestra-leader-employer from any Union by-law, regulation or ordinance with respect (i) to the prices (whether minimum, maximum or intermediate) which Cutler charges or will charge to his clients and (ii) to his minimum profits or income as orchestra-leader-' employer. Concerning the wage scales, Cutler made it quite clear that he desired bargaining from "scratch" as if the new scales had never been promulgated, whereas the Respondent suggested, as its counterproposal, the acceptance of the new rates or alternatively higher rates in view of Cutler's ability to command better prices for his engagements than other orchestra leaders. As for the welfare program, the Union, of course, accepted in principle Cutler's proposal for the establishment of a welfare fund for his sidemen but urged adoption of its recently instituted plan. On the other hand, if Cutler insisted that a separate welfare fund be created for his sidemen alone, the Respondent took the position that provision should be made for larger contributions by Cutler. As these discussions were essentially exploratory in nature and dealt mainly in generalities, the meeting concluded with the understanding that Cutler's attorney would submit to the Respondent specific contract proposals following the receipt of which another conference would be arranged. However, no other proposals were forthcoming from Cutler and no further bargaining sessions were held." As stated above, the General Counsel does not challenge the Respondent's good faith at the aborted bargaining negotiations. By letter dated February 4, 1966, the Respondent's attorney notified Cutler that the Respondent "cannot-accept or approve any notices of engagements-[he had] filed since December 8, 1965, which do not provide for the new Wage Scales and the Welfare Fund Contributions." The letter also stated that this action was in conformity with a statement the writer had made to the court in a lawsuit not identified'' that, unless the orchestra leaders paid its members the new wage scales and made the welfare fund contributions, it would instruct its members not to work for them. it The foregoing findings are based on a synthesis of the credible testimony adduced at the hearing I credit the denial of Ashe, an attorney long experienced in the labor relations field and a spokesman for the Respondent at the negotiating meeting, that at any time did he or any union representative exclude any subject, particularly wage rates and the welfare plan, from the bargaining table or indicate an inability to bargain on those subjects because they were covered by the Respondents bylaws It is noted that, notwithstanding the existence of bylaws affecting On April 12, 1966, the Respondent returned to Cutler 26 notices of engagement which he had previously forwarded to it. In its covering letter, the Respondent explained that it did so because there was not on file a signed agreement in the form enclosed therein which would give the Union assurance that he would pay its members the current wage scales and make the required contributions to the welfare fund. The letter also pointed out, as the Respondent's attorney had previously done, that, unless Cutler complied with those terms, its members would not work on his engagements. The form agreement that was enclosed describes itself as an agreement between the "Leader-Employer" and the Respondent and contains a preamble which acknowledges that: ... the Leader-Employer is desirous of employing members of the Union for musical performances in the single engagement field, and the Union is willing to have its members work for the Leader-Employer on the payment to them of applicable Union wage scales and the compliance by the Leader-Employer of all applicable Union rules and regulations, as well as of the terms set forth below. Among other things, the agreement proceeds to set forth the procedures to be followed by the "Leader-Employer" after he enters into a contract with a client or purchaser of the music. It also provides that the "Leader-Employer" warrants that such contract with the client or purchaser of the music will provide for payment of at least the minimum wage scales required by article X of the bylaws and the $1 welfare fund contributions. Also enclosed in the letter was another form entitled "Notice of Engagement Contract" which prescribes the information an orchestra leader is required to furnish the Union concerning the engagement contract made with the purchaser of the music. In addition, this form contains substantially the same commitment by the leader regarding wage scales and welfare fund contributions as that required of the "Leader-Employer" in the agreement previously described. The Respondent's President Arons testified that the "Notice of Engagement Contract" is customarily used by sidemen who occasionally act as leaders on engagements for which they themselves contract. On April 16, 1966, Lou Russ, a union delegate, appeared at Cromwell Center in Staten Island, New York, where one of Cutler's orchestras was scheduled to perform under Subleader Leroy E. Parkins. Shortly before the performance was to begin, Russ told Parkins and the musicians that if they played this engagement they would be taken before the Union's trial board on charges of playing below scale and without arrangements being made for welfare contributions by the employer. Parkins thereupon telephoned Cutler and put Russ on the telephone. In the ensuing conversation, Russ informed Cutler that, as he had not signed the form agreement which would assure the Respondent that the current wage scales would be paid and welfare fund contributions would be made, the men could not perform. Cutler replied that terms and conditions of employment in the steady-engagement field, the Respondent has negotiated collective-bargaining agreements in that area iN In his brief, the General Counsel identifies this suit as Ames v Associated Musicians of Greater New Yorb, Local 802 AFM, No 65-3702 (D C S N Y) This is an action brought by orchestra leaders, including Cutler. in which they c hallenge the Union's welfare plan and regulations as violative of Sec 302 of the Labor Management Relations Act 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would not sign such an agreement and consented to appear before the Union's executive board the following Tuesday (April 19). With this understanding, the musicians were permitted to proceed with the engagement. On Tuesday, Cutler came before the executive board. After the Cromwell Center episode was related, the executive board warned Cutler that if he did not sign the agreement described above, he would be unable to secure the services of any musician. Cutler repeated his disinclination to do so, referring to his pending NLRB charges in the instant case. President Arons then indicated his awareness of five engagements that Cutler was scheduled to perform the following Friday and threatened to prevent the musicians from playing them. Cutler responded that he would report this to the NLRB Regional Office. As it turned out, the Union did not interfere with these engagements. On April 22, 3 days later, the Respondent and Cutler entered into a written stipulation whereby, in return for the Respondent's agreement to permit its members to work for Cutler without being subject to union discipline, Cutler agreed to deposit in escrow the difference between the new and old wage scales his musicians would otherwise receive under the new rates and to make the welfare fund contributions. It was further stipulated that, "[s]hould it be held by the courts, or by the N.L.R.B. and affirmed by the courts, that any of the payments-[were] illegal," the welfare fund contributions would cease and the escrow moneys would be returned to Cutler. B. Contentions of the Parties; Concluding Findings Section 8(b)(3) of the Act makes it an unfair labor practice for the employees' bargaining representative to refuse to bargain collectively with their employer much the same as its counterpart, Section 8(a)(5), imposes a correlative obligation upon the employer to bargain collectively with the employee representative. Section 8(d) defines the phrase "to bargain collectively" as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment Although the new wage scales and welfare fund requirements prescribed in the bylaws are applicable to all of the Respondent's members and orchestra leaders who perform in the single-engagement field, not alone to Cutler and his sidemen, the General Counsel strenuously contends that the Respondent's unilateral action in thus changing the terms and conditions of employment of Cutler's sidemen after the latter's request for the initiation of contract negotiations constituted a refusal to bargain violative of Section 8(b)(3) of the Act. Analogizing the statutory obligation of the representative to that of an employer, the General Counsel argues that, just as an employer is prohibited from altering the terms and conditions of employment of his employees without first affording their representative an opportunity to bargain over such contemplated changes, as the Supreme Court held in N.L.R.B. v. Katz,is so is the representative under a corresponding duty to refrain from taking unilateral action without offering the employer a similar opportunity to negotiate. The Respondent, on the other hand, urges with equal vigor that, absent an existing collective-bargaining agreement limiting its right, the Act does not bar a union from withholding the services of its members from an employer to compel acceptance of the terms under which its members will work. Whether a union's unilateral imposition of new terms and conditions of employment could be treated analogously to an employer's unilateral action in setting working conditions as to offend Section 8(b)(3) is a question the Supreme Court has expressly left open.20 However, assuming that there are circumstances where a union's unilateral conduct may amount to a breach of its bargaining duty, I am not convinced that the facts of this case warrant such a determination, whatever surface appeal the General Counsel's contention may have.21 Section 7 guarantees to employees the right to engage in concerted activities for their mutual aid and protection. Traditionally, labor organizations have served such vital interests. In furtherance of these interests, it has not been an uncommon practice for unions to promulgate work rules designed to advance their members' economic welfare. Indeed, many well-established terms and conditions of employment, such as minimum wage rates, the 40-hour week, restrictions on overtime, job referral systems, and others too numerous to mention, whose validity is beyond challenge, have had their genesis in union rules, bylaws, and policies.22 It is not, nor can it seriously be, argued that the bylaws herein involved, particularly as they relate to minimum wage scales and a welfare fund program, are per se unlawful.23 Certainly, these subjects are matters of legitimate concern to the Respondent and its members and, being nondiscriminatory attempts to benefit all the represented employees and clearly not in conflict with the purpose and policies of the Act, may appropriately be included in collective-bargaining agreements .24 Nor, under Board precedent' 25 is it beyond the scope of the Respondent's prerogative in the management of its internal affairs to require its members to observe these 11 N.L R B v. Benne Katz d(b(a Williamsburg Steel Products Co,369 U.S 736 20 N L R.B v Insurance Agents' International Union, AFL-CIO (Prudential Ins Co.), 361 U.S. 477, 496-497; N L R B v Benne Katz, supra, 747. 21 If the Respondent still adheres to its position indicated at the hearing, but which is not apparent from its brief , that it does not represent Cutler's sidemen for collective -bargaining purposes, I find such contention wholly without ment The Respondent's demonstrated interest in the working conditions of Cutler's musicians , its concession that it represented them for the purpose of protecting their wage scales, hours, and other terms of employment, and its participation in contract negotiations with Cutler plainly reveal that it has been serving in that capacity in its dealings with Cutler 22 N L R.B v. Furriers Joint Council of New York, 224 F.2d 78, 80(C.A 2) 23 Joliet Contractors Association v N L R B., 202 F.2d 606, 608, 612 (C.A 7), denying petition to review and modify order in 99 NLRB 1391 , 1394, cert . denied 346 U S 824 The court there pertinently observed that union "by-laws not being illegal per se,-neither the Board nor this court could order their discontinuance " 24 N L R B v News Syndicate Company, Inc , 365 U.S 695 25 Local 248, United Automobile , Aerospace and Agricultural Implement Workers of America, AFL-CIO (Allis -Chalmers Mfg Co), 149 NLRB 67, reversed and remanded 358 F 2d 656 (C A. 7), petition for cert pending U.S. Supreme Court [reversed 388 U.S 175], Local 283 , United Automobile , Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO ( Wisconsin Motor Corp.), 145 NLRB 1097 ASSOCIATED MUSICIANS, LOCAL 802 27 rules or else suffer union discipline short of impairing the offender's job tenure. To be sure, the Respondent's action in amending its bylaws to raise the minimum wage scales and inaugurate a welfare fund without consulting Cutler is in a sense unilateral action, as is the promulgation of any work rule or regulation by unassisted unions.26 However, such union conduct cannot be equated to a unilateral change in working conditions made by an employer which subverts the union's exclusive representative status and, as the Supreme Court held in N.L.R.B. v. Katz,27 "is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal." On the contrary, as shown above, the Respondent placed its revised wage scales and its welfare fund on the bargaining table for acceptance by Cutler, which it was undoubtedly entitled to do, lust as Cutler was privileged to reject them and insist on bargaining from "scratch" on specific proposals he agreed to formulate and submit to the Respondent but which he failed to do. Moreover, unlike the employer's unilateral action in the Katz case, the Respondent's revised wage scales and benefit fund realistically could not become terms and conditions of employment in Cutler's business until accepted or adopted by him. Nor, by the same token, did they automatically become working conditions simply because the Respondent offered its members' services on those terms.28 The court's decision in Associated Home Builders'29 on which the General Counsel relies, does not hold otherwise and the facts of that case are plainly distinguishable from those in the present case. There, the :union, in violation of a collective-bargaining agreement,, fixed, by internal rule, production ceilings which its members were not permitted to exceed. The court held that the union's unilateral modification of the terms of an existing contract without complying with the requirements of Section 8(d)30 constituted a breach of the union's bargaining duty and violated Section 8(b)(3). But this is quite different from the Respondent's action in the present case where the parties were not bound to an effective collective-bargaining contract which established terms and conditions of employment and therefore the restrictions of Section 8(d) are manifestly inapplicable. The Respondent's right to withhold the services of its members except on the basis of the new wage scales and the welfare fund requirements can hardly be questioned. It is well settled that such withholding of services, like a strike, is not only an activity protected by the Act,81 but also is consistent with a desire to reach agreement. Indeed, the Supreme Court in the Insurance Agents' case,32 refused to find a union's harassing tactics during contract negotiations, consisting of unilaterally imposed working conditions, to be incompatible with the performance of its bargaining duty in violation of Section 8(bX3), stating that the "presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system [of collective bargaining] that the Wagner and Taft-Hartley Acts have recognized." By parity of reasoning, the Respondent's complete withholding of services unless Cutler met its economic demands cannot be viewed by itself to be inconsistent with the performance of its bargaining obligation. In fact, the Court in the Insurance Agents' case expressly approved the correctness of the Board's concession there (p. 491) "that a `total' strike called by the union would not have subjected it to sanctions under § (b)(3), at least if it were called after the old contract, with its no-strike clause, had expired." In the subsequent Katz case,33 where the Court held that an employer's unilateral action constituted an unlawful refusal to bargain, the Court expressly noted that its holding was not in conflict with the exoneration of the union in the Insurance Agents' cse, because, unlike the employer's action, the union's conduct did not foreclose genuine contract negotiations. As indicated above, the Respondent placed its new wage rates and welfare plan on the bargaining table as its proposals and it was only Cutler's failure to pursue negotiations any further that prevented the Respondent's good faith from actually being tested. Perhaps it is for this reason that the General Counsel does not impugn the Respondent's sincere desire to come to agreement with Cutler on the only occasion on which they met to negotiate a contract. In these circumstances, it cannot be assumed, without more, that the Respondent's promulgation of the new work standards "inhibit[ed] the actual process of discussion, or ... reflect[ed] a cast of mind against reaching agreement"34 in contravention of the objectives of the Act. This is especially so because the wage rates and the welfare program in question were designed to 21 Sec 8(aXl) of the Act , which makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7" has been construed to prohibit an employer from participating in the affairs of a labor organization Sec 8(a)(2) also makes it an unfair labor practice for an employer "to . interfere with the administration of any labor organization 21 369 U.S at 743 28 The cases cited by the General Counsel (C C Conn, Limited v N L R B , 108 F 2d 390 (C.A 7), Honolulu Rapid Transit Company, Limited, 110 NLRB 1806, Valley City Furniture Company, 110 NLRB 1589), do not support his position that the Respondent's action violated the Act. There, the court and the Board held that employees engaged in unprotected conduct rendering them vulnerable to discharge or other disciplpie when, instead of completely withholding their services by going out on strike over their demands, they remained at work, but on their own terms , for which they were paid As the court so aptly noted in Conn at 397, "[ w] e are unable to accept [the] argument to the effect that an employee can be on a strike and at work simultaneously We think he must be on the job subject to the authority and control of the employer , or off the job as a striker, in support of some grievance " Here, however, the latter approach was precisely the one pursued by the musicians , through their representative, in withholding their services unless Cutler agreed to employ them on their terms Cf N.L.R.B. v Washington Aluminum Co., Inc , 370 US 9 29 Associated Home Builders of the Greater East Bay, Inc v N L R.B., 352 F.2d 745, 751-755 (C A. 9). 20 Insofar as relevant , Sec. 8(d) provides that "where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract , unless the party desiring such termination or modification" first complies with certain specified conditions Si Sec. 13 states that "[n]othing in this Act, except as specifically provided for herein, shall be construed so as to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." 32 N L.R.B v Insurance Agents' International Union (Prudential Ins. Co.), 361 U.S 477. 31 369 U S 736 34 Id at 747 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advance the economic interests of its entire membership performing in the single-engagement field,35 of which Cutler and his sidemen comprised only a small segment, and were subjects that were under consideration by the Respondent's executive board long before Cutler requested bargaining negotiations. In view of the foregoing, I find no compelling reason to conclude that the Respondent's action in amending its bylaws to provide higher minimum wage scales and a welfare fund plan for its member-musicians who perform in the single-engagement field constituted a per se refusal who bargain with the Charging Party Cutler concerning terms and conditions of employment of the latter's employees within the meaning of Section 8(b)(3) of the Act. Similarly, I find that the Respondent did not breach its bargaining obligation by directing Cutler's musicians, under threat of union discipline, to withhold their services from Cutler unless he complied with the new requirements. Accordingly, I recommend dismissal of the complaint in its entirety. 36 RECOMMENDED ORDER Upon the basis of the foregoing findings and upon the entire record in the case, I recommend that the complaint issued herein against Associated Musicians of Greater New York, Local 802, AFM, be dismissed. as It seems safe to assume that many orchestra leaders who hire musicians may not even have sufficient business to warrant the assertion of jurisdiction by the Board. 36 In view of my determination herein, I find it unnecessary to consider other contentions urged by the Respondent.