Associated Musicians of Greater N.Y., Local 802

f ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 365 Associated Musicians of Greater New York, Local 802, AFM, AFL-CIO and Frank Miller and Lawrence Arthur and Herbert Bass Joseph Carroll d/b/a Joe Carroll Orchestras and Frank Miller and Herbert Bass. Cases 2-C B-4489-1 , 2-CB-4494 , 2-CB-4489-2, 2-CB-4489-3 , 2-C B-4495 , 2-CA- 11264, and 2-CA- 11265 June 3, 1969 DECISION AND ORDER BY MEMBERS FANNING, JI-NKINS, ANDZAGORIA On May 29, 1968, Trial Examiner Boyd Leedom issued his Decision in the above-entitled case, finding that the Respondents had engaged in the unfair labor practices alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Decision. The General Counsel filed certain exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 brief, and the entire record in the case. For the following reasons, we shall dismiss the complaint in its entirety. 1. JURISDICTION Joseph P. Carroll is the sole owner of a business enterprise known as Joe Carroll Orchestras, which is engaged in furnishing orchestras and musicial entertainment to various individuals and commercial clients in and outside of the State of New York. Undisputed evidence reveals that during calendar 1966, Joe Carroll Orchestras had gross revenues of $243,064. The record further establishes that over half of these revenues were nonretail in nature, in that they were received from Carroll's corporate and institutional customers, who in turn passed the cost of Carroll's services on to their customers, and who were, therefore, not the ultimate consumers of his services. Finally, it was stipulated that revenue in the amo unt of $51,635 was received directly from out-of-State; of this amount, country clubs purchased $34,405 and private individuals $17,230. Board precedent makes it clear that Carroll, being engaged in both retail and nonretail operations, is subject to the jurisdiction of the Board if he meets either the retail or the nonretail monetary standard.' In view of the fact that over $50,000 was derived directly from out-of-State , we shall exercise our jurisdiction in this case.' In agreement with the Trial Examiner, we Respondent Union' s contention that we should not exercise jurisdiction because the Employer's out-of-State nonretail revenues totaled only $34,405. For purposes of calculating the jurisdictional amount where an employer engaged in both retail and nonretail activity does more than a de minimis amount of nonretail interstate business , we combine interstate retail as well as interstate nonretail sales.' 11. THE ALLEGED UNFAIR LABOR PRACTICES The facts, which are essentially undisputed, may be summarized as follows: Joseph Carroll is a "society orchestra" leader who provides musical entertainment for commercial and industrial organizations, for society functions, at charity balls, and for college and prep school events. Carroll negotiates contracts with customers to provide a specified number of musicians at a given place and date. Once the number of musicals for a given event is fixed, the musicians are contacted by telephone by Edward Cardelli, the "contractor," or hiring agent, for the Employer. Cardelli is also the "first conductor" for the employer, which means that he acts as orchestra leader for engagements at which Joseph Carroll is not personally present. For purposes of hiring musicians, the Employer maintains a list of players who have, in the past, performed in his orchestras. Some 15 or 20 of the musicians on the list are on the Employer's "first string", which means that the Employer will generally contact them first and exhaust the "first string" before contacting any "second string" musicians . Frank Miller, Lawrence Arthur, and Herbert Bass, the alleged discriminatees, are all "first string" musicians and have been playing for the Employer for 20, 5, and 12 years respectively. Some 8 to 10 months prior to March 6, 1967, the Employer entered a contract to perform before the National Association of Purchasing Agents and Public Utilities' Buyers Club in the Starlight Room of the Waldorf-Astoria Hotel in New York City. A 12-man orchestra was specified. Miller, Arthur, and Bass, all members of the Respondent. Union, were engaged for this event several weeks prior to March 6. On January 10, 1967, Arthur was expelled from the Union; on February 2, Miller was expelled, and on March 2, Bass was expelled. All three of these expulsions were bottomed on violations of article IV, section l(H)(M) and (U), of the bylaws of Local 802. In pertinent part, these provisions make it a violation of the bylaws for any member to perform 'Chicago Federation of Musicians . Local 10. American Federation of Musicians. 153 NLRB 68, 76. 'Ibid. 'Cf. Appliance Supply Company, 127 NLRB 319, 320. 176 NLRB No. 46 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with an organization in which a nonmember plays. or to perform with a member of his local who is not in good standing. On the morning of March 6, Cardelli received a telephone call from John Anelli, the pianist engaged for that evening's Waldorf-Astoria performance. Anelli indicated that he would not perform the Waldorf-Astoria engagement because of the nonmembership status of Miller, Arthur, and Bass and the bylaw provision . At Respondent Carroll's instance, Cardelli called Charles Solinger, chairman of the trial board of Local 802 , to discuss the problem . Solinger told Cardelli that the bylaw spoke for itself and that he , Cardelli, should be guided accordingly. When Cardelli reported this conversation to Carroll , Carroll was not satisfied with the answer and ordered Cardelli to phone again . During the second call , Carroll listened on a telephone extension and again Solinger made substantially the same statement . When Cardelli insisted on a fuller statement, Solinger put Max Arons, president of the Local, on the telephone. According to dndisputed testimony Arons said: You are familiar with the bylaw. The bylaw speaks for itself. It is perfectly all right for those three nonmembers to play, but if they play and you play with them, the union members, the other members of the union and you will be brought up on charges. Cardelli then told Carroll that he would not play the March 6 engagement with the nonmembers. Carroll thereupon instructed Cardelli to find replacements for Miller , Arthur, and Bass, and sent telegrams to the latter individuals explaining why he was replacing them. The Employer had another engagement scheduled for March 16, 1967, also for the Starlight Room of the Waldorf-Astoria Hotel . According to Cardelli, when Cardelli reported the list of musicians for that engagement to Cy Marsden , a union delegate. Marsden reminded Cardelli that Miller and Bass, who were to play on March 16, were still on the expelled list . When Cardelli notified Carroll of this development, Carroll contacted Marsden, telling him that he, Carroll, intended to use Miller and Bass, and requesting Marsden to look into the matter. After a short time, Marsden phoned Carroll to say: I was told by Mr. Arons that it's all right if those two men play that engagement, but all the union the members of the union in good standing in the union will be brought up on charges following the engagement. On completion of this call, Caroll instructed Cardelli to hire replacements for Miller and Bass. The record reveals that Carroll had kept Miller and Bass on his books for the March 16 engagement because a stay of the expulsion of these musicians was expected from day to day, and was actually granted on March 17 . Between March 17 and approximately July 10, 1967, when the expulsions were made final. Miller, Arthur, and Bass continued their employment with Carroll. After July 10, Miller, Arthur, and Bass played for Carroll only outside the jurisdiction of Local 802, plus certain locations within its jurisdiction where a Local 802 delegate does not appear. Upon duly filed charges and a consolidated complaint issued by the General Counsel of the Board , the Trial Examiner found on the above facts that the Respondent Union had violated Section 8(b)(2) and (I)(A), and the Respondent Employer, Section 8(a)(3) and (1) of the Act. In its exceptions, Respondent Union challenges the findings of a violation of Section 8(b)(2) and 8(b)(1)(A), relying on Don Glasser v. N.L.R.B.' The Employer excepts to the Trial Examiner's finding of a violation of Section 8(a)(3) and (1) of the Act, apparently renewing before us the argument made before the Trial Examiner that "out of deference to the thus-validated union bylaw (the Employer) should . . . be allowed to protect his business and his union member employees . . . by dismissing from his orchestra the very side men against whom the union bylaws effectuate discrimination." The bylaw provisions which were the subject of conversation between Carroll and Cardelli, on the one hand , and Solinger , Aron, and Marsden, on the other, were article IV, section 1 (H) and (U) of the bylaws of Local 802. They provide that it is a violation of the bylaws and detrimental to the welfare of the Local for any member to (1) perform with an organization conducted by a nonmember, or in which a nonmember plays; (2) engage or perform with a member of the Local who is not in good standing. It is clear that these bylaw provisions, insofar as they prohibit a member of the union from playing with a nonmember, are rules prescribed by a labor organization with respect to the acquisition or retention of membership; and to that extent are protected by the proviso of Section 8(b)(l)(A).' The bylaw in issue in Don Glasser is the identical bylaw before us here. Given the validity of the bylaw, the question which the Union' s alleged violation of Section 8(bx2) of the Act turns is whether its officials caused or attempted to cause the Employer to discriminate against his nonunion employees when, in response to the Employer's direct and insistent questioning, they stated that the Union would in fact do what it had an undisputed right to do enforce its bylaw. In Don Glasser the court described, we believe properly, the kind of evidence necessary to establish a violation of Section 8(b)(2): However, in order for union conduct to violate Section 8(b)(2), as opposed to Section 8(b)(l)(A), there must be some direct approach to the '395 F.2d 401 (C.A. 2), enfg. the Board's Order in American Federation of Musicians, 165 NLRB No. 110. '/bid. ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 367 employer, or some conduct aimed at him , for the purpose of causing the employer to discriminate by implementing the union bylaw through his hiring practices or otherwise . . . undoubtedly, petitioners as union members have been acutely aware of the bylaw's existence and of the rigorousness of enforcement within the Federation. However, on the present record, the Board was free to find that Petitioners have not shown any pattern of action by the Federation aimed at them as employers. [Emphasis supplied.] We do not believe that the evidence supports a finding that the union officials in this case made a "direct approach" to the Employer to bring the bylaw to his attention, or that union officials made any affirmative effort to cause the Employer to discriminate. When Carroll became aware of the fact that Anelli would not play in the same orchestra with Miller, Arthur, and Bass, he initiated a series of telephone calls to Union officials to determine if he would be able to meet that evening's engagement. In response to Carroll' s persistent telephone questioning, the Union gave responses which did not add anything to Anelli's statements and which did not indicate to Carroll that the Union was in any way concerned with whether Carroll utilized the services of Miller, Arthur, and Bass. The Union did no more than repeat what Carroll already knew, namely, that the bylaw existed, and confirm what he must have suspected, namely, that no exception would be made in favor of members who played with Miller, Arthur, and Bass. We find in this no direct approach by the Union to the Employer, no conduct or pattern of action directed towards causing him to change his hiring policies, and accordingly. we shall dismiss the Section 8(b)(2) and (1)(A) charges. We now reach the question of whether Carroll's conduct constituted a violation of Section 8(a)(3). Upon careful evaluation of all the competing considerations here, we conclude that no such violation has occurred, and shall dismiss the charges. The operative effect of the bylaw on union members in the locality in which this case arose is such that they will not knowingly contract to play an engagement with nonunion musicians . For the employer this means that once he has engaged one union musician for any evening, he must hire union musicians for the remaining positions in the orchestra if he is to receive the services of the first musician for which he contracted; conversely, if the first musician engaged is nonunion, he will find it impossible to fill out the orchestra with union musicians. Thus, when Carroll engaged Miller, Arthur, Bass, and the remaining members of the orchestra for the March 6 and 16 engagements, both Carroll and the musicians could reasonably view their hiring agreement as containing an implied condition that nothing would occur prior to the time of performance which would alter the all-union character of the orchestra. This assumption was in a sense part and parcel of the consideration prompting Carroll and the musicians to enter into contracts of hire for the specified performances. Due to circumstances unforseen by Carroll, at least, the orchestra as originally constituted became unable to perform. The changed situation was not caused by any action of Carroll; it was caused by events not only beyond his power and control but which were within the power and control of the musicians and their union . These events the expulsion of Miller, Arthur, and Bass made it impossible for either Carroll or the musicians to fulfill their contracts with each other in accordance with the original understanding. In the law of contracts, the well established doctrine of impossibility of performance relieves an obligor of his contractual liability if unforeseen circumstances render performance impossible. Although this is not a contract question, we are- persuaded that the law of labor relations should provide an employer with some equivalent measure of flexibility in such extreme and unusual circumstances as are presented here.' Thus,' because of the failure of Miller, Arthur, and Bass to retain good standing in the Union, Carroll was placed in the position of having to adopt one of two alternative courses of conduct: he would have to find replacements either for Miller, Arthur , and Bass, or for Anelli, Cardelli, and, in all probability, the remainder of the complement. Carroll chose the former alternative; there is no showing that the other course was, as a practical matter, open to him. We are unwilling to hold on these facts that his conduct violated the Act. The instant case is distinguishable from those situations in which the employer himself was improperly motivated or in which he acquiesced in an improper course of action initiated by a collective- bargaining representative or union hiring hall.' Thus, the Employer's predicament resulted, independently of any improper motive or unlawful union pressure, from the operation of a bylaw provision which both the Board and the courts have found to be protected by the proviso of Section 8(b)(IXA). For these reasons, we shall dismiss the Section 8(a)(l) and (3) charges. ORDER It is hereby ordered that the complaint be, and it hereby is. dismissed. 'Compare N.L.R.B. v. Zoe Chemical Co.. 406 F.2d 399 (C.A. 2). 'E.g., Brunswick Bdke-Colknder Co.. 131 NLRB 156, supplemental sub nom. Brunswick Corp.. 135 NLRB 574, enfd . 318 F.2d 419 (C.A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner: These consolidated cases were tried in New York City on January 10 and 11, 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1968. The various charges in the case were all made in March 1967, and an order consolidating the cases based on the charges, together with a consolidated complaint, issued on November 30, 1967. This complaint and the answers of the Respondents, the Union named above, and of Joe Carroll, the employer, raise the questions whether Carroll discharged three musicians, the Charging Parties Frank Miller, Lawrence Arthur, and Herbert Bass, and has since refused to reemploy them, because they had been expelled from membership by the Respondent Union, and at the time of such discharges were no longer members thereof, and thereby violated Section 8(a)(3) and (1) of the National Labor Management Relations Act, as amended; and whether the Union caused or attempted to cause Carroll to thus discriminate against these musicians in violation of Section 8(b)(2) and (IXA) of the said Act. It is admitted that the three employees were expelled from membership in the Union for violation of bylaw provisions and were also discharged by Carroll. Joe Carroll, as he stated it, is a "so-called society orchestra leader." He has been engaged in this business for many years operating principally in the area of New York City and within the jurisdiction of the Union. In this enterprise he engaged musicians and other entertainers for the purpose of furnishing music and other entertainment for individual and corporate clients. Orchestras and bands constituted by him vary in size . If there are eight or fewer pieces Carroll himself not only leads the orchestra but often plays an instrument. If the musical group organized for a given event is larger than eight pieces, Carroll usually if not always directs only and plays no instrument. The basic problem that has produced this and similar litigation is whether certain bylaw provisions of the Local Union, Respondent herein provisions prohibiting union members from performing with or under the direction of nonmembers are used to cause a band or orchestra leader employer to discriminate against employed musicians in violation of Section 8(a)(3) of the Act; and the Union in violation of 8(b)(2). The trial in this proceeding gave every indication of a continuing feud between these participants. I conclude that both Respondents the Union and the Employer - violated the Act essentially as alleged in the complaint. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER AND THE LABOR ORGANIZATION Jurd isdiction Respondent Union contends the Board has no jurisdiction over this proceeding; but in Chicago Federation of Musicians, Local 10, 153 NLRB 68, - a case that seems to be on all fours with the instant case on the jurisdiction issue it was held that a band and orchestra leader such as Joe Carroll, is an employer within the meaning of the Act. I find that Carroll is an "employer" in this proceeding, for all the reasons stated in the decision of Trial Examiner Harold X. Summers in the Chicagocase cited; and on the authority ofthe other court decisions and Board noted by him in that case. There is no real contention as to Carroll's status as an employer. It follows that the Board's jurisdiction over this proceeding, under its jurisdictional standards, then depends on the "commerce figures" of Joe Carroll in his "single, engagement" and "steady engagement" activity, on which jurisdiction was predicated in the cited case. Again on the authority of the Chicago decision I find and conclude that Carroll, within the meaning of the Board's jurisdictional standards, is engaged in both retail and nonretail activity. From undisputed evidence I find that Carroll's gross revenue for the relevant year of 1966 was $243,064, over half of which accrued through his "nonretail" operations - nonretail in the sense that this half of his receipts came from corporation and institutional customers with Carroll's services ultimately benefiting the customers of such corporations and institutions. The balance of his gross revenues came from individuals such as "fathers of the bride" or other persons arranging pure social events, and thus from his retail operations in that the music was not procured or used in a business operation, for customers of Carroll's customers. The evidence also reveals and I find that more than $50,000 of Carroll's revenue came directly to him from out of New York for engagements served by his musical organizations outside the state. Inasmuch as an employer engaged in both retail and nonretail operations comes within the Board's jurisdiction if he meets the standard applying to either a retail or nonretail operation, and inasmuch as revenues of $50,000, received directly from out-of-state, meets the nonretail standard, the Board has jurisdiction over Carroll's enterprise. Siemons Mailing Service, 122 NLRB 81. It is interesting to note that in Arthur v. Associated Musicians of Greater New York, Local 802, 67 LRRM 2439 a case involving the parties in the instant case and essentially the same dispute, a footnote indicates that "Joe Carroll Orchestras" comes well within the Boards's jurisdiction "guidelines." I reject as lacking in merit the Respondent Union's argument that the Board should not exercise jurisdiction over Carroll because all his revenue for the relevant year, excepting approximately $30,000, was for social engagements and not from sales to persons in the business of providing or selling musical service as part of their commercial activity. By this argument, as I understand it, this Respondent seeks to impose a condition wholly foreign to the Board's jurisdictional standards. In asserting jurisdiction in previous cases ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 over a music enterprise such as the one here dealt with, the Board treats the business essentially as a service organization. Any holding finding merit in this Respondent's argument that all revenue should be excluded from Carroll's commerce figures because the services were rendered at social functions, would be in effect to eliminate from the commerce figures involved in all jurisdiction determinations, revenue from goods and services providing entertainment only, but this would be in conflict with the Board's cases where jurisdiction is asserted in the entertainment field. Novel though it may be, this contention is not sufficiently substantial to undermine the Board's consistent assertion of jurisdiction over a period of years in several fields where entertainment is the principal ingredient of the commerce involved. Thus I find and conclude that Joe Carroll doing business as Joe Carroll Orchestras is engaged in commerce within the meaning of the Act and as measured by the Board's jurisdiction standards; and therefore that this proceeding is within the jurisdiction of the Board. II. THE UNFAIR LABOR PRACTICES A. The 8(6X2) Violation Edward Cardelli, Carroll's "contractor," that is his hiring agent and supervisor within the meaning of the Act, as I find and conclude, had employed, in behalf of Carroll, musicians Frank Miller, Lawrence Arthur and Herbert Bass to play in one of Carroll' s musical organizations being organized weeks in advance for an engagement at the Waldorf Astoria Hotel in New York City, on March 6, 1967. At the time they were engaged by Cardelli these three musicians, the Charging Parties herein, were members of the Union; but subsequently, and prior to March 6, they were expelled for violating article IV, sections 1 (H, M and U), of the bylaws of Local 802. These provisions make it a violation of the bylaws, and detrimental to the welfare of the Local, for any member to (1) perform with an organization conducted by a nonmember or in which a nonmember plays; (2) engaging or assisting in the engaging of any musician who is not a member of the Local; and (3) engaging or performing with a member of the Local who is not in good standing. Just prior to the March 6 engagement, John Anelli, the piano player engaged for the Waldorf Astoria event, called Cardelli on the telephone and advised him he had heard that Miller, Bass, and Arthur were no longer members of the Union and he, Anelli would not keep the engagement because of the bylaw provisions. Cardelli called Charles Solinger, a member of the Union's trial board, about the problem and was told by Solinger that "the By-laws speak for themselves." Cardelli reported this development to Carroll who asked Cardelli to call the Union again for a fuller statement. During the second call Carroll listened on a telephone extension and again Solinger made substantially the same statement, that is that the bylaws were clear and that Cardelli "should be guided accordingly." Cardelli asked for a fuller statement and Solinger got Max Arons, president of the Local, on the telephone. Arons said according to undisputed testimony: 369 You are familar with the bylaw. The bylaw speaks for itself. It is perfectly all right for those three non-members to play, but if they play and you play with them, the union members, the other members of the Union and you will be brought up on charges. Carroll then, on being advised by Cardelli that he would not work the March 6 engagement with nonunion members because of the bylaw provisions and the attitude of the Union in connection therewith, and Carroll already having knowledge that Anelli would not keep the engagement for the same reasons, sent telegrams to Bass, Miller, and Arthur advising them that they would not be used for further engagements including that of March 6, and setting forth as the reason for their termination, the bylaw provisions and the attitude of the Union, and the fact that union members would not play with them. These three musicians did not play the engagement; but because Carroll believed that the expulsion of the three was going to be stayed he had kept them on the list of musicians for a March 16 engagement. Prior to playing this date, Cardelli reported the list of the musicians to Cy Marsden, union delegate and was advised by Marsden that Miller and Bass were still on the expelled list. Cardelli advised Carroll who then telephoned Marsden stating that he intended to use these men even though expelled and that he wished Marsden would check into the matter. Marsden then called Carroll advising him that Arons had told him it was all right to use the two men but that all the union members in good standing would be "brought up" on charges if they kept the engagement with the two musicians subject to the dispute. The Board has held that a union insofar as it maintains and enforces bylaws which discipline members for working with nonmembers is not engaging in any unfair labor practices within the meaning of the Act. American Federation of Musicans of the United States and Canada, AFL-CIO, 165 NLRB No. 110. Respondent argues that "the act of the union official expressing the intention of invoking such bylaws, in face of an impending violation thereof, cannot be converted into an illegal act if the bylaws themselves are legal." While I reject this argument and find the Union in violation because of the statements of union representatives hereinbefore set forth, there is a degree of plausibility in Respondent's contention. Notwithstanding such plausibility as Respondent's argument may have, it and the conduct which the Respondent Union seeks to justify by the argument, seem to be subject to the same objection and invalidity as that made by Respondent Employer in his contention that the Employer "out of deference to the thus-validated union bylaw should . . . be allowed to protect his business and his union member-employees . . . by dismissing from his orchestra the very side men against whom the union bylaws effectuate discrimination," an argument which I also reject as hereafter appears. As to the Respondent Union such bylaw provisions may be valid, as the Board has held, so long as they relate to the internal affairs of the Union; but they cannot be used as weapons against a member in his employment, through his employer. As to the Respondent Employer, he seeks to transport over into his relationship with an employee, a matter foreign to the relationship and valid only insofar as it relates to the Union's conduct respecting its own members as members. Even so there is a degree of plausibility in Respondent Employer's argument for if the Union may discipline its members for working with nonmembers it does seem somewhat reasonable, as 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer argues , that he should be able to protect both his business and his union -member employees by dismissing from his organizations the nonunion employees whose continued employment will prove decidedly disruptive. The crux of this decision as to the union violation alleged is whether union officials can call attention to a valid bylaw, as they did it, in this case, to an offending member's employer . I reach the conclusion that this cannot be done without violating the Act through a very literal interpretation of the language of Section 8(b)(2). Quoting it so that the language may be directly related to the union conduct, the section in relevant part provides that it is "an unfair labor practice for a labor organization or its agents - . . . (2) to cause or attempt to cause an employer to discriminate against an employee . . . with respect to whom membership in such organization has been denied ... " Whatever else may be said about the conclusion that the union officials violated the Act, it seems very clear that they caused Carroll to discharge the three nonmember musicians by the references to the bylaw provisions and the statement to his contracting employee Cardelli (relayed to Carroll) that if he violated the bylaw provisions, charges would be filed against him. This union conduct could not reasonably be expected to produce any other result than the discharges ; for Carroll was confronted with the assurance that his mainstay employee Cardelli would not direct the orchestra for the March 6 engagement, and that the piano player engaged would not perform ; and the strong likelihood that the rest of the organization , all union members except for the three Charging Parties, would not assume the risk of appearing with the nonunion musicians. If this interpretation of the statute seems excessively literal, the choice is deliberate and preferable to running the risk of error in an opposite holding that would overlook the realities of the actual result effected by the union official's words; and that would in addition tend to read into relatively simple language a meaning that is not there . For the statute grants the Union no immunity from violation for causing discriminatory discharge of an employee even though the union conduct producing the discharge seems somewhat reasonable or logical. This ruling leaves unanswered the question what union officials should do or say in the precise situation this case presents. For the purposes of this Decision , however, it is enough to say that what was said and done here caused the Employer to discriminate against his employees; and that in any such situation as this one , the Union acts and speaks at its peril with respect to the employer-employee relationship existing between its offending member and his employer. For the reasons set forth above I find and conclude that the Respondent Union herein violated Section 8(b)(2) and 8(bXIXA) of the Act. In support of his position that the Union conduct constituted a violation, the General Counsel relies on these cases among others : Local 1332, International Longshoremen 's Association, AFL-CIO, 1471; Chief Freight Lines Company, 111 NLRB 22; International Union of Operating Engineers , Local 478, 162 NLRB 112 ; and Northwestern Montana District Council of Carpenters Union, 126 NLRB 889. These cases support in some measure this finding of the 8(bX2) violation. B. The 8(a%3) Violation The evidence clearly reveals, Respondent Carroll readily admits, and I find and conclude that he discharged and refused to reemploy the three musicians Bass , Miller, and Arthur for the reason that they were not members in good standing of Respondent Union. His conduct, notwithstanding any and all attendant circumstances, constitutes a violation of Section 8(a)(3) and ( 1) of the Act; and I so find and conclude. As previously indicated I reject, as having no substantial merit, the argument presented by Respondent Carroll that in view of the validity of the bylaw provisions under which the three employees had been expelled from the Union and under which the Union made it clear they would proceed against its other members if they violated the provisions, he, Carroll, should be entitled under the law to take the reasonable action of dismissing the employees who were not members of the Union , thereby relieving himself from the difficult dilemma in which their continued employment thrust upon him. The law makes no provision for any such legal self-help by an employer at the expense of his employees. The bylaw provisions in question have been held valid only as intraunion regulations between the Union and its members. They are wholly unrelated, as hereinbefore stated, to the relationship of the offending union member and his employer. They have not been held valid as lawful grounds for discharge from employment. For the above reasons I find and conclude that Respondent Joe Carroll violated Section 8(a)(3) and (1) of the Act. III. THE REMEDY Having found that both Respondents, the Union and the Employer, have engaged in unfair labor practices, I shall recommend that each cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as I have found that the Respondent Union caused Joe Carroll to discharge unlawfully and to refuse to rehire, his employees Herbert Bass, Frank Miller, and Lawrence Arthur, I shall recommend that such Respondent notify Joe Carroll, in writing, and furnish a copy to each of the employees named in this paragraph, that it has withdrawn its objections to the employment of these three and accedes to their reinstatement by Joe Carroll . The Respondent Union shall make each of the named employees, discriminatorily discharged , whole for any loss of pay suffered because of the discrimination against them, by pay nent to them of a sum of money equal to that each would have normally earned from March 6, 1967, when the discrimination against them resulted in their loss of work, until issuance of the above-mentioned notification , less net earnings of each employee during said interval . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at a rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent Union restrained and coerced Herbert Bass, Frank Miller and Lawrence Arthur in the enjoyment of their Section 7 rights under the Act in violation of Section 8(b)(l)(A) by causing their discharge, and because of the serious nature and consequences of such violation , destroying as they did fundamental rights ASSOCIATED MUSICIANS OF GREATER 371 guaranteed by said Section 7, persuasively implying from the evidence in this case the likelihood of other violations of such rights, I shall recommend a broad order against the Respondent Union proscribing not'only the violations committed and like violations , but also any other interference with such rights, except to the extent they may be affected by an agreement made in accordance with Section 8(a)(3) of the Act, as amended, requiring membership in a labor organization as a condition of employment in the lawful manner. As to the violation of the Act by the Respondent Joe Carroll and the underlying purpose and pendency of his unlawful conduct in discharging his employees Bass, Miller and Arthur as hereinbefore determined , and the destructive character of such action as to the said employee Section 7 rights; and in order to make effective the interdependent guarantees of Section 7, I shall recommend that said Respondent Carroll cease and desist from infringing in any manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing Company 312 U.S. 426, 437; N.L.R.R. v. Entwistle Mfg. Co. 120 F.2d 532, 536 (C.A. 4). Because of the unlawful discrimination by said Joe Carroll in discharging his said employees , I shall require him to reinstate them in jobs equivalent to those they held prior to the discrimination against them ; and I shall also impose upon him the burden of making them whole for loss of earnings in the same amount and manner, with interest, as hereinbefore provided in this remedy section of this Decision with respect to the Respondent Union. [Recommended Order omitted from publication.]