American Federation of Musicians

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Musicians of the United States and Canada and Wichita Falls Musicians' Association Local No. 688, AFM1 and National Association of Orchestra Leaders. Case 16-CC-332 November 19, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 6, 1970, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondents 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 Charging Party filed exceptions to the Decision and supporting briefs, and the Respondents filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner.3 ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Thomas S. Wilson, Trial Examiner: Upon a charge duly filed on May 15, 1969, by the National Association of Orchestra Leaders, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel i and the Board, respectively, by the Regional Director for Region 16, Fort Worth, Texas, issued its complaint dated July 17, 1969, against American Federation of Musicians and Wichita Falls Musicians' Association # 688 AFM, hereinafter referred to collectively as the Respondent or the Union, or individually as the International or Local 688. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein referred to as the Act. Respondent duly filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held before me in Wichita Falls, Texas, on July 31, 1969. All parties appeared at the hearing, were represented by attorneys or personal representatives, and were afforded full opportuni- ty to be heard, to produce and cross-examine witnesses, and to introduce evidence material to the hearing. Oral argument was waived. Briefs were received from General Counsel and Respondent on September 12, 1969. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE ALLEGED SECONDARY EMPLOYER2 For the fiscal year ending December 25, 1968, a representative period, the Officers' Open Mess at the Sheppard Air Force Base, Texas, herein referred to as the Club, had gross sales consisting in large measure of food and drink, amounting to $606,409.03 plus $134,872 in dues. The Club is and has been in the business of providing Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint be, and it hereby is, dismissed in its entirety. The caption appears as amended at the hearing. s We correct the Decision with regard to the February 21 conversation between Major Padden and Gladwyn Harding, wherein the Trial Examiner inadvertently referred to Leo Baxter instead of Harding. The record also shows that Harding and not Baxter played an engagement at the club that night. 3 Chairman Miller agrees with the Trial Examiner's finding that Harrah's Club, 176 NLRB No. 77, is dispositive of this case since the Officer's Club, by virtue of its contract with the Electro Tones band, is the employer of the members of the band, and is the primary employer in this dispute. The Trial Examiner relied on Harrah's Club, but did not clearly articulate a finding that an employer-employee relationship existed in this case, as it did in Harrah's. An examination of the record and, in particular, the contract above referred to, compels such a finding, in Chairman Miller's view, and is the determining factor herein. I This term includes the attorney appearing for the General Counsel at the hearing. 2 The complaint dated July 17, 1969 , contained inter alia the following paragraphs. 6. Since on or about February I. 1969, Respondent Musicians Union and Respondent Local 688 have been engaged in a labor dispute with the Officers' Club because the Officers' Club has entered into contractual relations with and engaged orchestra leaders to perform who are not members of the Respondents and who employed musicians who were not members of the Respondents. 9. At no time material herein have the Respondents had any labor dispute with Harding, Baxter or any other orchestra leaders who are members of the Musicians Union. By a document labeled "Amendment to Complaint ..." dated July 25 the aforementioned paragraphs were deleted and the following substituted therefore: 6. At all times material herein, Respondent Musicians Union and 186 NLRB No. 95 AMERICAN FEDERATION OF MUSICIANS 647 entertainment and refreshment to its officer -members. The Club paid the sum of $45,901.45 for entertainment, an integral part of the Club's business. Accordingly, I find the Club is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act .3 II. THE UNION INVOLVED It is admitted and, therefore, found that American Federation of Musicians and Wichita Fills Musicians' Association # 688 AFM are labor organizations within the meaning of Section 2(5) of the Act. At all times material herein Major John F. Padden was the business manager, or in Air Force terminology the Secretary-Custodian, of the Officers' Open Mess at Sheppard Air Force Base which is here referred to as the Club. Padden succeeded to this position when the former Secretary-Custodian, Captain Edwyn M. Saiki, had been transferred to other duties in December 1968. Saiki had negotiated most of the entertainment contracts involved herein. Sam Gibbs, son-in-law or brother-in-law of Billy Peeler, operates the Sam Gibbs Orchestra Service in Wichita Falls, Texas, which is a booking service for bands and orchestras. Some band leaders secure bookings for their bands through personal contact with the Secretary-Custodian of the Club while others secure such bookings through the Sam Gibbs Agency. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Dramatis Personnae W. G. (Billy) Peeler is the "full-time" president of Local 688 which has jurisdiction in and around Wichita Falls, Texas. He has been a member of the Union for 28 years and its local president for many years. E. V. Lewis is an assistant to the International president of AFM who is, among other things, in charge of the International's unfair list. Walon D. Holt is the manager of a band composed of two of his sons and other fellow collegians which is known as the Electro Tones. Neither Holt nor the Musicians in the band are members of the Union. Gladwyn E. Harding and Leo Baxter are each the leader of his own band or orchestra. They and their musicians are all members of the Union. Both the nonunion Electro Tones and the union Harding and Baxter bands have played numerous engagements at the Club over a long period of years. Respondent Local 688 have been engaged in a labor dispute with orchestra leaders who entered into contractual relations with the Officers' Club because these orchestra leaders were not members of the Respondents and because they employed musicians who were not members of the Respondents. 4 t t 4 i 9. At no time material herein have the Respondents had any labor dispute with the Officers' Club or with Harding, Baxter, or any other orchestra leaders who were members of the Musicians Union. As a result of these rather fundamental changes made by this so-called amendment paragraph 13 of the original complaint reading as follows: 13. An object of the acts and conduct of the Respondents set forth in paragraphs 7, 8, 9, 10, 11 and 12 above, was and is to force or require Harding, Baxter and other orchestra leaders who are members of the Musicians Union to cease doing business with the Officer's Club. B. The Incident Leading to the Trouble Sometime in November 1968 Sam Gibbs telephoned Walon D. Holt offering the services of his booking agency. During this conversation Sam Gibbs inquired of Holt if he and the Electro Tones did not want to become members of the Union. Holt answered this last question by stating that he and the Electro Tones were considering whether it would be to their benefit to join the Union. On November 22, 1968, Captain Saiki and Band Leader Spic Copenhaver entered into a contract through the Sam Gibbs Orchestra Service whereby Spic Copenhaver and the Spix IV, Copenhaver's band of four musicians, were to provide dance music from 8 p.m. until 12 p.m. at the Club for $120 on February 7, 1969. For reasons undisclosed in this record this engagement by Spic Copenhaver and the Spix IV was canceled. Because of this cancellation Major Padden entered into an Air Force "Contract (for Entertainment Services)" dated January 27, 1969, with the Electro Tones to play for a dance at the Club on February 7, 1969, between the hours of 8:30 p.m. and 12:30 a.m. The Electro Tones were to This paragraph was amended to read: 13. An object of the acts and conduct of the Respondents set forth in paragraphs 7, 8, 9, 10, 11 and 12 above , was and is to force or require Harding, Baxter and other orchestra leaders who are members of the Musicians Union to cease doing business with the Officers ' Club and in order to force or require the Officers' Club to cease doing business with orchestra leaders who were not members of Respondents and who employed musicians who were not members of Respondents. It would seem that General Counsel's theory of his case underwent radical revision between July 17 and 25, 1969. As there was no objection to this so-called amendment , the case was heard on the amended pleadings. + The allegation in the complaint listing the Club as a secondary employer is conclusive for jurisdictional purposes . Jurisdiction over the secondary employer is sufficient to assert jurisdiction over all parties involved in the alleged labor dispute. H & K Lathing Co., 134 NLRB 517. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply a band of five pieces for the stated remuneration of $120. On February 7, knowing that the Copenhaver engage- ment had been canceled4 and learning through a radio announcement that the Electro Tones were playing the Club that evening, Peeler telephoned Holt. He asked Holt if the Electro Tones did not want to join the Union. Holt again answered that the Electro Tones were trying to decide if union membership would be of any benefit to them. Peeler inquired if the Electro Tones were playing the Club that evening and, upon confirming that they were, said that they could not play the Club that evening. Peeler than asked how much they were being paid for the engagement. This Holt refused to disclose but added that, if Padden wanted to do so, it would be all right with him. Peeler remarked that he would call Padden and "straighten him out." Holt answered that Padden knew the Electro Tones were nonunion and offered the opinion that Peeler would not be able to "straighten out" Padden with a quotation from Padden during their negotiations to the effect that the Union "could not tell the Air Force how to run its business." At this point Peeler stated that he was going to allow the Electro Tones to play the Club that evening. This apparently angered Holt somewhat because he rejoined that the Union could not tell him, a nonunion band leader, anything because he was not union and he had a contract with the Club to play. As Holt expressed it, this latter part of the conversation was the only "loud" part of the conversation. Thereafter Peeler telephoned Padden. According to the testimony of Padden, Peeler stated in that telephone conversation that he, Peeler, would not allow the Electro Tones to play the Club that night because they were nonunion.5 Then Peeler inquired as to the remuneration which Padden answered by admittedly telling Peeler that that "was none of your business." Then, still according to the testimony of Padden, Peeler stated that the Electro Tones were on the Union's unfair lists and that he, Peeler, would have to take steps to remove union groups from the Club. This made no difference to Padden who ended the conversation by stating that the Electro Tones were going to play. According to the testimony of Peeler, he asked Padden if Padden had a contract for February 7 and, upon receiving an affirmative answer, inquired if it were a union contract. After receiving a negative answer to the last question, Peeler asked what the Club was paying the group and was told that it was "none of your business." Peeler then informed Padden that the group would have to be paid the union scale to which he received the same answer that it was "none of your business." This telephone conversation, like all other contacts between the two men, could hardly be classed as friendly. It did confirm Holt's previously expressed opinion. During his testimony Peeler denied any mention of the fact that the Electro Tones were nonunion. As between the conflicting testimony I am inclined to credit that given by Peeler. The Electro Tones played the engagement of February 7 without further incident. Between then and February 17 Peeler learned that the Electro Tones were paid $120. This Peeler maintained was below union scale particularly as the Electro Tones were nonunion and a visiting band to whom transportation would have to be paid. On February 17, 1969, Peeler wrote E. V. Lewis, assistant to the president of AFM, as follows: The Executive Board of Local 688, A. F. of M. has placed Major John Padden and the Officer's Club, Sheppard Air Force Base, Texas on the Unfair List of Local 688, A. F. of M. for paying less than the prevailing wage scale on a specific date, February 7, 1969. Scale on this engagement for six (6) musicians is $158.60 for a four (4) hour engagement. Major Padden paid $120.00. There was no union musicians involved. Major Padden has used this group on numerous occasions. He advised the Officials of Local 688 it is none of their business what he pays the musicians. He has been trying to get our union members to sign the Air Force contract, which they have refused to do. We need the help of the Federation to curb this situation. We hereby request the Federation place the name of Major John Padden and the Officer's Club, Sheppard Air Force Base, Texas on the National Unfair List of the American Federation of Musicians until such time this problem can be solved. On February 21, 1969, Leo Baxter and his orchestra played an engagement at the Club for Padden. During a conversation between Harding and Padden at that time, Harding informed Padden that Peeler expected both Padden and the Club to be placed on the union unfair list for the month of March. Baxter expressed the hope that this listing would have ended before Baxter's next engagement at the Club. As a result of this information, on March 6 Padden telephoned the International Union Office in New York and talked to E. V. Lewis who, in answering the question as to why Padden and the Club were being listed as unfair, told Padden that the unfair listing resulted from the facts (a) that the Electro Tones had been paid under union scale; (b) that Padden and the Club were "using an illegal contract for union members," i.e., the Air Force contract instead of the approved union contract; and (c) that the Leo Baxter Orchestra was paid below union scale by the Club. In his oral testimony at the hearing Padden added to the above a fourth reason which he testified Lewis gave, to wit, that Padden and the Club had been employing nonunion bands. However Padden had given an affidavit to the attorney for the General Counsel during his investigation of the case to which was attached a memo entitled "Facts Surrounding the Officers' Club Being Placed on the Unfair List with the AFM by Mr. Peeler, President, Wichita Falls Local." This i Copies of contracts, cancellations, etc.. of union bands are customarily Electro Tones to play the engagement. sent to the local unions involved. 8 In fact the Electro Tones went on the Union's unfair list in March 5 This contradicts the testimony of Holt who admitted that, at the end 1969. of his conversation with Peeler, Peeler had stated that he would allow the AMERICAN FEDERATION OF MUSICIANS 649 attached memo had been made by Padden at the suggestion of a legal officer at the Sheppard Air Force Base immediately following his conversation with Lewis. This memo failed to mention the fourth reason given in Padden's oral testimony. In his testimony Lewis denied having referred to the employment of nonunion bands during his conversation with Padden. Under these circumstances this Trial Examiner must credit the Lewis denial, particularly as the nonunion Electro Tones had admittedly been playing the Club about once a month for many years without any objection from the Union. All the band leaders within the jurisdiction of Local 688 were sent notices of the unfair listing of Padden and the Club by the Local. In the April issue of the International Musician, Padden and the Club were listed as unfair by the International. The result of these listings and article 10 of the union constitution which requires members to refuse to perform services for orchestra leaders or establishments listed as unfair on penalty of fine or expulsion was that many bands and orchestras canceled contracted engagements with the Club thereafter. There is no question but that this constitutional provision would "induce or encourage" union members to refuse to perform services for an unfair listed club. On one occasion about March 29 Leo Baxter and his orchestra were "setting up" to perform an engagement at the Club when Peeler telephoned Baxter and informed him that the Club and Padden had been placed on the Local's unfair list. Although denied by Peeler, Baxter's testimony was that, upon asking why the Club was on the unfair list, Padden answered that it was because the Club had used a nonunion band (Electro Tones) a few weeks prior thereto. Although Peeler did not tell Baxter that Baxter could not perform the engagement, there was talk during the conversation about possible consequences of Baxter's keeping the engagement such as a fine. However Baxter and his orchestra played the engagement.7 Conclusions There appeared to be in this case several rather serious variances between the amended allegations, upon which this case was tried, and the proof. For instance the allegation in the amendment is to the effect that Respondents at all times mentioned here were "engaged in a labor dispute with orchestra leaders" who contracted engagements at the Club "because these orchestra leaders were not members of the" Union and employed nonunion musicians. Of course Peeler knew of and did ask if the Electro Tones did not want to join the Union. But there is no law prohibiting a union from seeking further memberships. Yet Respondents permitted the nonunion Electro Tones to play the February 7 date at the Club without objection just as they had been permitted to play almost monthly engagements there for the past few years. The proof indicates that, when Respondents listed the Electro Tones as unfair, it was because their engagement on February 7 was not paid for at the union scale and because the "illegal" Air Force contract was used rather than the approved union contract-and not because the Electro Tones were nonunion. There is no proof in this record that Respondents had any dispute with the Electro Tones or any other orchestra leader based upon union membership. There is proof that Respondents did object when orchestra leaders, union or nonunion, played at the Club for less than the union scale. Further the amendment also alleges that "at no time" did Respondents have "any labor dispute with the Officers' Club. ..." In addition to the fact that this amended allegation is dismetrically opposed to the allegation of the original complaint to the effect that "since on or about February 1, 1969," Respondents "have been engaged in a labor dispute with the Officers' Club" because the Club had entered into contractual relations with nonunion orchestra leaders who employed nonunion musicians, the fact that the Club was put on Respondents' unfair list seems to indicate that Respondents at least considered that they had some sort of dispute with the Club contrary to the amended allegation. In fact, if it were necessary to a decision of this case, I would be inclined to find that Respondents' primary dispute was with Padden and the Club for paying bands, union and nonunion, less than the established union scale. However, despite the above variances, this Trial Examin- er, being bound by the law as expounded by the Board even as the Board has on occasions taken pains to remind the Trial Examiners' staff, believes that the Board has recently decided a case which is dispositive of the 8(b)(4) issue in this case. That decision is that of American Guild of Variety Artists, AFL-CIO (Harrah's Club, et al.), 176 NLRB No. 77. In that case the Guild had sent wires to such prominent independent contracting artists as Tennessee Ernie Ford, Dinah Shore, etc., warning and threatening each of them not to violate the picket line established by AFM by appearing at any of the picketed clubs. In dismissing the 8(b)(4) charges against AGVA, the Board said: ... In terms of effect, then, there may well be no distinction between lawful primary picketing and unlawful secondary picketing proscribed by Section 8(b)(4). One important test of the lawfulness of a union's picketing activities in the course of its dispute with an employer is the identification of such picketing with the actual functioning of the primary employer's business at the situs of the labor dispute. [Citation omitted.] Thus, as the Supreme Court has recently stated in affirming those Board Decisions which had adopted this general principle, direct appeals to "all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt" to withhold their services constitutes traditional primary activity outside the scope of Section 8(b)(4). [Citations omitted.] In applying these traditional principles to the present case, it is not and cannot be contended that Respon- r Subsequently on July 9, 1969, the executive board of the International Baxter failed to supply copies of his engagement contracts as required by Union fined Leo Baxter the sum of $50. There is in this record no proof as the union constitution. The record there shows that for years Baxter had to whether this fine was levied as result of charges against Baxter for been prone to be lax in filing the required copies of his engagement having performed the engagement of March 29 or because of charges that contracts. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's actions called for anything but the refusal of the entertainers to cross the picket lines of the striking musicians at the clubs in question . The picket lines were established in furtherance of a primary strike of the employees of the picketed casinos, and the telegrams advised the stars that AGVA supported the strike and instructed them to honor the picket line. The conduct of the Respondent in advising its members to honor the AFM picket lines was not substantially different from that of the AFM itself in conducting the picketing at the situs of the disputes , namely at the clubs themselves. Accordingly, we find that AGVA's conduct does not fall into the category of illegal secondary activity by virtue of the fact that it assisted another union in that union's labor dispute. [Citation omitted.] It is clear, moreover, that the work of the AGVA stars here involved not only contributed "to the operations which the strike . . . [was] endeavoring to halt" but in fact was directly related to the normal operations of these casinos. The record demonstrates that the shows in which the stars were engaged to perform are an important means of enticing the public to the clubs in the hope and reasonable expectation that once inside the club they can be induced to try their luck in the casinos. Moreover, the actual performances of the star-type entertainer are coordinated into the overall show offered by the club by club managers as to timing, pace, material, rehersals, etc., all with a view to enhancing the financial success of the gambling enterprise. The presence of such entertainers, then, is a customary and necessary adjunct to the Nevada casino operations. Accordingly, inasmuch as the work of the star performers was in fact inextricably involved with and necessary to the normal operations of the casinos, and as Respondent's telegramed instructions to all of the performers involved to honor the AFM picket line appealed for and induced action only at the situs of the dispute by persons "contributing to the operations which the strike was endeavoring to halt," we find that they constituted permissible primary activity. [Citations omitted.] We shall, therefore, dismiss the complaint in its entirety. The law as thus expounded by the Board is equally applicable to the situation in the instant case. Thus this case must be dismissed. CONCLUSIONS OF LAW 1. The Officers' Open Mess, Sheppard Air Force Base, Texas, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents American Federation of Musicians and Wichita Falls Musicians' Association #688 AFM are each labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Accordingly, in accordance with the case noted above, I hereby order this case dismissed in toto.