American Federation of Musicians of the United States and Canada

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Musicians of the United States and Canada, AFL-CIO (Pena Theatrical Agency, Inc.) and National Association of Orchestra Leaders, Inc. Case 1-CC-601 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 10, 1969, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the General Counsel had failed to establish that the Board has jurisdiction over the parties in this dispute, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, a motion to remand the case to the Trial Examiner, and a brief in support thereof. The Respondent filed an Answering 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, briefs, and the entire record in this case, 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 we agree with the Trial Examiner that for jurisdictional purposes the determinative amount is Penza 's income rather than the value of the contracts booked by him, and that the General Counsel incorrectly relied on Associated Musicians of Greater New York, Local 802, AFM, AFL-CIO (Random Travel, Inc), 171 NLRB No 149 However, we do not adopt the Trial Examiner's interpretation of the basis on which jurisdiction was asserted over Charles Peterson Theatrical Productions, Inc., the primary employer in that proceeding It is clear from the context of his Decision that Trial Examiner Barker , in that case, used the phrase "gross volume of business" and the term "revenues" as synonyms which referred to the income to Peterson and did not intend thereby to designate distinct matters. 'The General Counsel has moved that the Board remand this proceeding to the Trial Examiner for the purpose of taking additional evidence on the question of jurisdiction, i e , the identity of specific secondary employers The motion, which was opposed by the Respondent , is hereby denied The General Counsel had ample opportunity at the hearing to present such evidence but declined to do so unless asked for this Having failed to establish the Board's jurisdiction, the General Counsel may not now have another opportunity to do so, under the circumstances To remand the case for further evidence bearing on jurisdiction at this time would be unjust and inequitable to the Respondent Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER ZAGORIA, dissenting: I would grant the General Counsel's motion to remand this case 'for further evidence on the question of jurisdiction. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: This case was heard in Boston, Massachusetts , on December 11, 19682 pursuant to a complaint issued on November 1 against American Federation of Musicians of the United States and Canada, AFL-CIO (hereinafter referred to as Respondent) based on a charge filed on March 30, 1967, by National Association of Orchestra Leaders, Inc. (hereinafter referred to as Association). The complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the parties,' I make the following: FINDINGS OF FACT 1. NATURE OF THE DISPUTE Penza Theatrical Agency, Inc. (hereinafter called Penza) is a Massachusetts corporation with its principal office and place of business in Boston, Massachusetts, where it is engaged in the business of "booking" musicians and entertainers. A booking agent finds employment for musicians and entertainers, and in order to book musicians who are members of Respondent, a booking agent must enter into a Booking Agent agreement with Respondent. Prior to on or about March 6, 1967, Penza was party to such an agreement. It is undisputed that on March 6, 1967, Respondent canceled Penza's Booking Agent agreement, because Penza had booked musicians at rates below the prevailing union scale. Thereafter, in the April 1967 edition of its official journal "The International Musician," Respondent published a notice of the revocation of Penza's Booking Agent agreement. Article 25, section 5, of Respondent's Constitution and By-laws, provides, in substance, that no member of Respondent shall secure employment through or with the assistance of a booking agent who is not a party to a subsisting Booking Agent agreement. Article 25, section 3, provides, as follows: Any member who shall violate the provisions of this Article shall be subject to a fine not exceeding $500.00, and to expulsion from the Federation, or both, and to such other direction as the International Executive Board may find proper in the circumstances. The gravamen of the complaint is that Respondent by publishing notice of the revocation of Penza's Booking Agent agreement in its journal, in the context of 'Unless otherwise indicated, all dates refer to the year 1968 'At the hearing, the American Guild of Variety Artists, American Federation of Television and Radio Artists, American Guild of Musical Artists, and Actors Equity were permitted to intervene in this proceeding as amicus curiae, without objection of the General Counsel, for the limited purpose of filing briefs 177 NLRB No. 95 AMERICAN FEDERATION OF MUSICIANS Respondent' s By-laws described above, induced and encouraged its members, who offer their services as employees to orchestra leaders who are employers within the meaning of the Act and who do business with Penza, to refuse to perform services for such orchestra leaders in violation of Section 8(b)(4)(i) of the Act. The same conduct is alleged to have been violative of Section 8(b)(4)(ii) of the Act in that it constituted restraint and coercion of members of Respondent who are orchestra leaders and employers within the meaning of the Act to cease doing business with Penza. Respondent contends that the complaint should be dismissed because the operations of Penza do not meet any of the Board's jurisdictional standards , and because the conduct in question is not violative of Section 8(b)(4) of the Act . Because I conclude that Penza does not meet any of the Board's jurisdictional standards, and that no other basis exists for the assertion of jurisdiction herein, I do not reach the issue of the legality of Respondent's conduct. 11. JURISDICTION Penza Theatrical Agency is operated by its president, Robert Penza. There are no employees. Penza testified that his annual gross volume of business exceeds $500,000 and that for the calendar year 1966, (the calendar year preceding the filing of the charge herein ) his gross volume of business was approximately $700,000. However, what Penza described as his gross volume of business was in actuality the total dollar amounts of the contracts (that is, bookings) which he obtained for musicians and other entertainers . In other words, his gross volume of business consisted of the amounts, whether denominated wages or fees, to be paid the performers. Penza's revenues for the services he performed, as distinguished from his alleged gross volume of business, were as follows: for the fiscal year ending March 31, 1966, $31,395; for the fiscal year ending March 31 1967, $48,736; and for the fiscal year ending March 31, 1968, $27,790.' Between 25 and 50 percent of the engagements booked by Penza call for the interstate travel of performers. Thus, for the calendar year 1966, between $175,000 and $350,000 of the dollar amounts paid to performers pursuant to bookings obtained by Penza involved interstate travel. Similarly, between 25 and 50 percent of Penza's revenues are derived from interstate engagements. In addition to the foregoing, the only other evidence offered by General Counsel to support the assertion of jurisdiction was the testimony of Charles Peterson, treasurer of the Association. Peterson testified that the Association has approximately 800 orchestra leader-members, 700 of whom are members of Respondent, and that these 700 alone do an annual gross volume of business of about $ 16 million , several million of which is derived from engagements involving interstate travel. Respondent has approximately 290,000 members. It was stipulated that some of Respondent' s members act as orchestra leaders on single engagements or club dates and 'Books produced at the hearing by Penza showed gross revenues for the same periods as follows : March 31 , 1966, $32 ,895, March 31,1967, $52,996; March 31, 1968, $30,772. Penza explained that these figures were slightly higher than those listed above , because his books did not reflect refunds The figures recited above were supplied by Penza's accountants and they are the figures which I accept. 843 are employers within the meaning of the Act for those engagements. III. ANALYSIS AND CONCLUSIONS General Counsel contends that jurisdiction should be asserted herein on the basis of Penza's operations, and/or on the operations of the secondary employers affected by the secondary activity. As to Penza, General Counsel contends jurisdiction can be asserted on the basis of either the retail or the nonretail standard. The retail standard is assertedly satisfied by Penza's gross volume of business of $700,000, and the non-retail by the fact that $175,000 to $350,000 of that volume of business represented engagements involving interstate travel. Query: is Penza's volume of business measured by the dollar amounts of the contracts he negotiates or by his revenues for his services in negotiating the contracts? To my knowledge, the Board has not had occasion to rule on this question, at least as it relates to booking agents. In support of his contention that the dollar amounts of the contracts is the measure of Penza's volume of business, General Counsel cites Associated Musicians of Greater New York Local 802, AFM, AFL-CIO (Random Travel, Inc.), 171 NLRB No. 149. In that case, the Trial Examiner found that during the fiscal year ending May 31, 1966, Charles Peterson Theatrical Productions, Inc., of which the same Charles Peterson who testified in this proceeding is president, had a gross volume of business of about $100,000, from which it received "revenues totaling $45,833 for services performed outside the State of New York." During the same period, it received "revenues" totaling $39,642 for services for commercial clients within the State of New York, $8,000 of which represented services to commercial clients who were themselves engaged in commerce under the Board's direct inflow or outflow jurisdictional standards. Accordingly, the Trial Examiner concluded that Peterson was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. According to General Counsel, the assertion of jurisdiction over Peterson in the above cited case was based on its annual gross volume of business, including the entire amounts paid under the contracts which he booked. This contention is based on the testimony of Peterson in the instant case that of the $100,000 gross volume of business which his firm had in the fiscal year ending May 31, 1966, $65,000 was attributable to his operations as a booking agent, as opposed to his operations as an orchestra leader, and the $100,000 included the entire amounts paid under the contracts which he booked and not merely the profit earned by his corporation. Peterson's testimony in this proceeding is represented as being the same presented in Random Travel, and General Counsel argues that it follows that, in asserting jurisdiction over Peterson, the Board relied upon Peterson's booking agent operations and his gross volume of business, including the entire amounts paid under the contracts booked by Peterson. I do not credit Peterson's testimony, because as I read Trial Examiner Barker's findings, Peterson's testimony before me is inconsistent with the findings in Random Travel. The Trial Examiner was very explicit in explaining how he arrived at a figure in excess of $50,000 for the assertion of jurisdiction. Thus he stated, "Of this total gross volume of business [$100,0001 Peterson Productions 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received revenues totaling $45,833 for services performed outside the State of New York . In that one sentence, the Trial Examiner used both the term "gross volume of business" and the term "revenues", clearly indicating that he regarded them as distinct matters . If on the record before him, it appeared that Peterson received "revenues" totaling $45,833 for services performed outside the State of New York, $65,000 of Peterson's gross volume of business could not have been attributable to his operations as a booking agent. In short, Random Travel does not support the General Counsel' s contention that the total dollar amounts under the contracts booked by Penza represent the yardstick for determining whether or not to assert jurisdiction over Penza. Despite the foregoing, arguably it would be appropriate to assert jurisdiction over Penza on the basis of the total dollar amounts of the contracts he negotiated since, as a result of these contracts, there was interstate travel by performers for services in significant amounts valued from $175,000 to $350,000 during the calendar year 1966. Nevertheless, the total dollar amounts of the contracts is not a proper basis for computing Penzas volume of business. In Devco Diamond Rings, 146 NLRB 556, the employer was engaged in the operation of a jewelry repair shop and annually shipped, on a projected basis, jewelry valued in excess of $50,000 to retail stores outside the State of Missouri wherein the employer was located. The employer's receipts for sales and services projected over a 1-year period amounted to about $29,400 . In concluding that it would not effectuate the purposes of the act to assert jurisdiction the Board stated as follows : "When, as here, an employer performs work on goods owned by others, it is the value of the employer's sales and services, and not the value of such goods, which the Board considers in determining whether or not to assert jurisdiction." In Mid-West Pool Car Ass'n., Inc., 114 NLRB 721, the employer was a nonprofit organization formed for the purpose of having merchandise loaded on freight cars for its members, distributing the merchandise to them on arrival in Denver, and effecting savings for them by taking advantage of carload freight rates . The employer made no out-of-state purchases . Nor did it at anytime have title to the merchandise it handled . Although the goods came from out of state all deliveries were made within the state. The employer assessed each member its proportionate share of the freight charges and expenses of operation, and for the year from May 1, 1954, through April 30, 1955, the total of such assessments was $356,122, of which $268,375 was for freight charges . The Board concluded that in collecting freight charges from its members the employer was merely acting as their agent , and that the money collected for this purpose did not constitute revenue to the employer. In the instant cases, Penza does not even collect the amounts of the contracts which are relied upon for the assertions of jurisdiction; those amounts are paid to the performers and all that Penza ever receives are his commissions. While there is interstate travel by the performers, both Devco and Mid- West Pool demonstrate that this is not the determinative factor. It appears to me that inclusion of the entire amounts of the contracts to determine whether or not to assert jurisdiction over Penza would be tantamount to attributing to Penza the value of the services of the very orchestra leaders who the General Counsel contends are the secondary employers in this case. Whether or not the operations of the secondary employers are sufficient to warrant the assertion of jurisdiction in this case presents other considerations. General Counsel's argument for relying on the operations of the secondary employers is not entirely clear . It is, of course, settled law that in cases involving secondary activity which may be violative of Section 8(b)(4) of the Act, where , as here, the primary employer's operations do not meet the Board's jurisdictional standards, the Board will take into consideration for jurisdictional purposes not only the operations of the primary employer, but also the entire operations of the secondary employers at the location affected by the alleged conduct. Suffolk County District Council of Carpenters (T & D Roofing Co.. Inc.), 173 NLRB No. 188. The questions yet remain in any case : who are the secondary employers and what is the location affected by the alleged secondary activity. General Counsel points out that in Jemcon Broadcasting Company, 135 NLRB 362, the Board construed the term "location involved " in the unlawful conduct broadly enough to include the entire geographical area in which the secondary employers were located. He does not, however, pursue the matter further by stating what geographical area should be included in this case. Since Respondent's April 1967 issue of "The International Musician" with the notice of revocation of Penza's Booking Agent agreement was presumably distributed to all Respondent's members throughout the United States, arguably the "location involved" is coextensive with that distribution and all leader-members of Respondent in the United States who are employers within the meaning of the Act are the secondary employers in this case. Assuming this to be General Counsel' s theory (and I can glean no other), while it may serve to identify the secondary employers as a class, there still exists the necessity for a showing that one or more of the secondary employers, standing alone, meets the jurisdictional requirements. Commission House Drivers, etc. (Bondi's Mother Hubbard Market ), 118 NLRB 130. Thus, in Jemcon, supra, the Board specifically excluded from its consideration for jurisdictional purposes two secondary employers the extent of whose operations did not appear in the record. There is no evidence in this case of any secondary employer who meets the Board's standards for the assertions of jurisdiction . It appears that to satisfy the requirement that there be one secondary employer who, standing alone, meets the Board's jurisdictional requirement, General Counsel is relying on the operations of the 700 orchestra leaders who are members of the Association, as well as members of Respondent, and who have an annual gross volume of business of approximately $16 million, several million of which is attributable to engagements involving interstate travel . Implicit in the reliance on these facts is the argument that the Association constitutes a multiemployer association whose total volume of business may be used as a basis for asserting jurisdiction.' However, the Board has expressly rejected such an argument in Marty Levitt, 171 NLRB No. 94. In that case, the Board had been requested to apply its existing jurisdictional standards on a 'It is noted that in par. 8(a) of this complaint, General Counsel alleges that 'The Charging Party [Association], together with its member orchestra leaders, is and at all times therein material has been, engaged in commerce within the meaning of the Act. AMERICAN FEDERATION OF MUSICIANS multiemployer basis by combining the business of all leaders who are members of an employer association to which full bargaining powers had been delegated. The Board stated,' We do not find merit in the proposal for aggregating the business of leaders who are members of an employer association. Although the Board has asserted jurisdiction by totaling the business volume of an association's members, it has done so only where the members of the multi-employer association participate in or are bound by multi-employer bargaining. Although the National Association of Orchestra Leaders, an employer association to which Levitt belongs, is authorized to bargain collectively for its members it has never done so. In fact, the Union has specifically rejected the Association's demand for multi-employer bargaining and stated that it prefers to bargain separately with each leader. Apart from collective-bargaining powers, the Association has no control over its members, all of whom operate independently. Since there is no history of multi-employer bargaining , no prospect for such bargaining in the future, and the Association, apart from bargaining powers, has no control over its members, there is no justification for assertion of jurisdiction on a multi-employer basis. On the basis of that case, the operations of the members of the Association cannot be aggregated to establish that there exists, standing alone, a secondary employer who meets the Board's jurisdictional standards. And while the operations of all the Association's members who are also members of Respondent may be aggregated under Commission House Drivers, supra, they cannot be aggregated to form the secondary employer who meets the jurisdictional requirements. In the foregoing, I have glossed over the requirement that the operations of secondary employers may be used for jurisdictional purposes to the extent they are affected by the alleged secondary activity. When this requirement is invoked, it becomes even more evident that the record herein does not support the assertion of jurisdiction. To 'Fns. omitted. 845 look to all orchestra leaders who are employers and members of Respondent as secondary employers, as General Counsel appears to contend, assumes that all are doing business with Penza within the meaning of Section 8(b)(4)(B) and all are affected by the alleged secondary conduct. But certainly, not all those leaders are doing business with Penza, either actually, or in a prospective or potential sense. To so hold would mean that the moment an individual became a Booking Agent, although he had never booked a performer, his agency could not be revoked and the fact of such revocation published without making such action subject to the Board's jurisdiction. It is obvious that the relationship created between Penza and the class of employers who are leader-members of Respondent by the Booking Agent agreement with Respondent is too tenuous or remote to justify reliance on the operations of the class to assert jurisdiction. Rather, it was incumbent on General Counsel to establish that Penza was actually doing business with at least one secondary employer who meets the Board's jurisdictional standards. I am mindful of the fact that the "club date" field (which is what Penza's operations appear to be concerned with) is an "industry affecting commerce";` nevertheless, the Board has not undertaken to assert jurisdiction in secondary boycott cases solely on the basis that the industry was one affecting commerce. For example, in Sheet Metal Workers Int'l Assn., Local 299, etc., 131 NLRB 1196, the Board asserted jurisdiction not because the secondary employers were engaged in an industry affecting commerce, but because the primary employer met the Board's standards for the assertion of jurisdiction. In short, since Penza's operations are insufficient to warrant the assertion of jurisdiction, and since there is no evidence that the alleged secondary conduct affected the operations of any secondary employer who meets the Board's jurisdictional requirements, I shall recommend dismissal of the complaint. RECOMMENDED ORDER Upon the basis of the foregoing, it is recommended that the complaint be dismissed in its entirety. `Carroll v. Association of Musicians of Greater New York, 206 F.Supp. 462, 474-475. (S.D.N.Y.) affd . 316 F.2d 574 (C.A. 2).