Associated Musicians of Greater N.Y.

ASSOCIATED MUSICIANS OF GREATER N.Y. 645 Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO (Dante Caterers, Inc.) and National Association of Orchestra Leaders Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO and Dante Caterers, Inc. and National Association of Orchestra Leaders. Cases 29-CC-384 and 29- CE-22 July 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 27, 1974, Administrative Law Judge Abraham H. Mailer issued the attached Decision in this proceeding. Thereafter, the Respondent Union and General Counsel filed exceptions and supporting briefs, and the Charging Party filed exceptions to that Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge but only to the extent consistent with the following. The Administrative Law Judge found that the Re- spondent Union' violated Section 8(e) of the Act by maintaining an understanding with Dante Caterers that nonunion bands would not play at Dante's estab- lishment and Section 8(b)(4)(ii)(A) by threatening Dante with the object of forcing or requiring the members of "The Changing Times," an independent musical group, to join the Union. We conclude, how- ever, that there is_ insufficient evidence to support these findings. In April 1972, Ellen Bowe and John Marengo en- tered into a contract with Dante Caterers to cater their wedding reception to be held on March 18, 1973, i The complaint listed Dante Caterers as a party respondent . However, all allegations that Dante violated the Act were subject of a settlement entered into by Dante and the General Counsel in which Dante did not admit to having violated the Act but consented to the Board's entering an order against it requiring , essentially, that it cease and desist entering into, main- taming, or enforcing any agreement or understanding with Respondent Union that only union musicians could perform at its, Dante's, estab- lishment. In consequence, the Administrative Law Judge severed the allega- tions of the complaint against Dante and referred the matter to the Board for approval of its stipulation . On March 14, 1974, the Board issued its Decision and Order in that matter, in which, inter alia, it did approve the stipulation. at Dante's premises in Jackson Heights, New York, New York. The front of the written contract provided that it embraced a number of rules and conditions listed on the reverse, number 16 of which provided, "Patron agrees that only Union Musicians (A.F. of M.) will be employed by Patron on the premises." However, the couple did not read this provision, and even after they stated to a company representative that they intended to hire their own band rather thin use a house band, company representatives did not bring the provision to their attention or otherwise indicate that a union band must be employed. In any event, the group they engaged was "The Changing Times," an informal partnership of five persons none of whom was a member of the Union. During the reception on March 18, Amedeo Basile, an agent of Respondent Union, visited Dante's prem- ises and, among other things, asked "The Changing Times" if they were union. On learning that they were not, his ensuing conversation included statements to the effect they had to be union to play at Dante's, that they would have been thrown out of other halls in the area such as the V.F.W. if he caught them playing there, and that if they 'refused to leave he could pull out all the union musicians and other union employ- ees at Dante's 2 He then attempted without success to get the members of the band to agree to join the Union. Immediately thereafter Basile went to the company office and told General Manager Tracy, according to Tracy's testimony, that a nonunion band was playing at the Marengo reception.' Then Banquet Manager Murray, according to Maitre d' Bondinello, told Bon- dinello something about a fine and ,that the Union could pull the band out and instructed Bondinello to bring the Marengos to the office. Tracy then talked to them and, according to their credited testimony, told them in effect that Basile, the union agent, had said the Union was going to fine Dante $600 for having a nonunion band at its establishment; that as the Mar- engos had hired the band Dante was going to pass the fine on to them; and that the band could not play for the rest of the evening. Mr. Marengo asked Tracy to try to resolve the matter. With that the conversation ended. A short while later, Tracy sought out the Mar- engos and told them not to worry as it was settled. Later in the evening Bondinello remarked to members 2 The General Counsel excepts to the Administrative Law Judge's failure to find that the above threats by Basile to members of The Changing Times violated Section 8(b)(4)(i1)(A) of the Act. As described above, the band was engaged by the Marengos and thus was selling its "product"-music-to them as the ultimate consumer Thus, our retail standard is the standard to be applied here See Marty Levitt, 171 NLRB 739 (1968). Since there is no evidence the band meets that standard we shall dismiss those allegations of the complaint alleging the threats made directly to members of the band to be unlawful. 3 Basile did not testify at the hearing 212 NLRB No. 79 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of The Changing Times, according to their credited testimony, that the band's being nonunion could have cost Dante a $600 fine, adding, however, that the matter had been cleared up in the office, Insofar as the record shows, Dante made no attempt to stop the band from playing and, indeed, the band played on. Also, there is no evidence that Dante or the Marengos paid any "fine" or were in any other manner adversely affected because the band was nonunion. The facts, as sketched above, portray what might well be considered a suspicious situation. But there are several problems standing in the way of finding, as did the Administrative Law Judge, that a violation occurred. First, as just noted, no threats were in fact carried out which raises some question as to whether any threats were made.' And this question becomes a real difficulty when it is realized that all the evidence concerning any threats to Dante is hearsay with re- spect to the Union. In fact the only witnesses who were in a position to testify as to what Basile said to management were apparently Murray and Tracy. The former testified that he never talked to Basile that evening; while the latter stoutly denied that Basile said anything to him about a fine or made any threat whatsoever with respect to The Changing Times. To be sure, the Administrative Law Judge discredit- ed, Tracy's denial, but such discrediting does not, of course, convert a denial into affirmative evidence binding on the Union that Basile did threaten Dante.5 Tracy did concede, however, that on a couple of occa- sions well before the date of the Marengo reception Basile had mentioned that if nonunion bands played at Dante's, union bands might not play there and that the Union might pull out its musicians . With such background, Basile's mere notification of Tracy on March 18 that a nonunion band was present might be considered a direct threat. But here such a conclusion scarcely seems justified, for Tracy also testified that aside from the night of the Marengos' wedding he had never had any problems whatsoever with the Union concerning any band.' Thus, there is no pattern of conduct to suggest that Basile's comments in the past were a continuing active threat of any kind that would make his mere notification of the presence of a non- union band tantamount to a threat to pull out all union musicians if the nonunion band were not re- Of course, if threats were made they would not be protected from the proscription of the Act just because they were not carried out 5 The Administrative Law Judge was, however, clearly right in holding that Tracy's uncontradicted denial that Basile made any threats does not neces- sarily preclude a finding that such threats were in fact made 6 Murray testified that on various occasions in the past nonunion bands had played at Dante's-a fact he claimed he learned just through casual conversations with band members However , there is no evidence as to whether or not the Union was aware that nonunion bands other than The Changing Times had ever played at Dante's moved. Furthermore, there is no direct evidence of any understanding between the Union and Dante which would convert Basile's notification that The Changing Times was nonunion into some obligation on Dante's part to see that the band was removed or which would subject Dante to any fine for permitting a nonunion band to perform on its premises. On the contrary, the testimony by management personnel was to the effect that they knew of no agreement or understanding whatsoever between Dante and the Union. Consequently, in view of the foregoing consid- erations, it is apparent that there is no direct evi- dence-at least none that is other than hearsay with respect to the Union-that Basile threatened Dante with a fine or other action at the time of the Maren- gos' reception or that any understanding existed be- tween the Union and Dante concerning the union status of bands playing at Dante's. Therefore any con- clusions that such threats were made or that such an understanding existed must, as the Administrative Law Judge recognized, be inferred from the surround- ing circumstances. In this regard the situation is, as indicated above, a suspicious one. Nevertheless, the various factors in- volved fall short in our view of establishing an ade- quate basis for finding the alleged violations. Thus for example, there is no evidence that the Union had anything to do with the incorporation of the clause in Dante's contract specifying clients engage only union bands. Further, it appears that Dante in general over- looked the clause and specifically ignored it in the present case. As for Dante permitting union agents to check on the bands playing at its establishment, there is no evidence that this was in any way connected with a scheme to keep out nonunion groups though no doubt it would facilitate such a scheme. But we need more than possibilities and suspicions. Further, the record does affirmatively establish one legitimate rea- son for the visitations-the Union's desire to police its contracts where union bands were playing. Finally we note Tracy's warning the Marengos of a possible fine or union difficulties just after Basile told him The Changing Times was a nonunion group. Such a reac- tion suggests surely that Tracy was concerned there might be problems but it does not show, at least alone, that Basile in fact made any threat. Thus there is an ambiguity of meaning in the various items urged here-of which the above are but a sample-with respect to showing an unlawful understanding or un- lawful threats. And in circumstances such as those before us where there is no direct evidence of any unlawful threats or understanding and where in fact nothing happened-i.e., the band played out the eve- ning; no one was fined-we find that this ambiguity precludes our drawing the inferences necessary to ASSOCIATED MUSICIANS OF GREATER N.Y. 647 find the alleged violations of Section 8(b)(4)(ii)(A) and 8(e). Thus, we further find that the General Coun- sel has failed to prove his case 7 and shall, therefore, dismiss the complaint. ORDER It is hereby ordered that the complaint filed herein be, and it hereby is, dismissed. 7 The Administrative Law Judge cites in support of his result Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO (Huntington Town House, Inc), 203 NLRB 1078 (1973). The situa- tion in that case was in a number of regards similar to that now before the Board. Nevertheless, in that case, unlike here, there was credited testimony showing, inter ales, that at least one patron had been told he could engage only a union band, that both management and union representatives told certain persons there was an agreement only union bands could play at Huntington's, that the union agent made threats to management to pull out all union employees if he were prevented from getting union members' card numbers in order to bang charges against them for playing under a nonunion leader, and that management notified certain nonunion musicians they would be thrown out if they came around again and arranged for an all-union band to take their place . Consequently, the finding in that case, unlike here, of an unlawful understanding and of proscribed threats was supported by direct, specific evidence on the points in issue DECISION ABRAHAM H. MALLER, Administrative Law Judge: On No- vember 16, 1973, the Regional Director for Region 29 of the National Labor Relations Board, herein called the Board issued on behalf of the General Counsel an order consoh- datmg cases, complaint and notice of hearing against Asso- ciated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO, herein called Respondent Union and Dante Caterers, Inc.' Briefly, the complaint as later amended alleged that "The Changing Times" is a partnership of five named musicians who are self-employed persons engaged in providing musical enter- tainment and related services; that Dante Caterers and Re- spondent Union had entered into an agreement, arrangement, and understanding whereunder only mem- bers of Respondent Union are permitted to conduct orches- tras and provide musical entertainment services to patrons of Dante Caterers, and said Dante Caterers had agreed to cease and refrain from doing business with other persons including, inter alia, "The Changing Times"; that on or about March 18, 1973, Dante Caterers and Respondent Union attempted to enforce said agreement by attempting to require "The Changing Times" to cease performing at the premises of Dante Caterers and to require the members of "The Changing Times" to join Respondent Union; that Respondent Union threatened, coerced, and restrained "The Changing Times" by threatening to engage in and cause a strike and work stoppage by union members playing at other functions on Dante Caterers' premises and by threatening to have Dante Caterers eject them from its i Said complaint was issued upon charges filed on August 21, 1973, by National Association of Orchestra Leaders. premises pursuant to the agreement and by threatening to prevent "The Changing Times" from performing at any other location until such time as they became members of Respondent Union, in violation of Section 8(b)(4)(ii)(A) and (e) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.), herein called the Act. In its duly filed answer, the Respondent Union denied any violations of the Act. Pursuant to notice, hearing was held before me in Brook- lyn, New York, on January 17, 18, and 21, 1974. All parties were present at the hearing and were afforded full opportu- nity to be heard, to introduce relevant evidence, to present oral argument and to file briefs with me. At the outset of the hearing, counsel for the General Counsel presented a stipu- lation entered into between the General Counsel, the Charg- ing Party, and Dante Caterers in which said parties agreed to the entry of an order requiring Dante Caterers to cease and desist from entering into, maintaining, giving effect to, or enforcing any agreement, arrangement, or understanding with the Respondent Union, or any other labor organiza- tion, whereunder only members of Respondent Union or any other labor organization are permitted to conduct or- chestras or to provide musical services to patrons of Dante Caterers; and from entering into, maintaining, giving effect to or enforcing any other contract or agreement, express or implied, whereby Dante Caterers ceases or refrains, or agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products or services of any other employer, or from doing business with any other person. Upon the presentation of said stipulation, counsel for the General Counsel moved to sever Dante Caterers as a party to Case 29-CE-22, and without objec- tion, said motion was granted by me. Briefs were filed by all parties on Feburary 19, 1974. Upon consideration of the entire record and the briefs, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER It was agreed, and I find, that Dante Caterers is, and has been at all times material herein, a corporation duly orga- nized under, and existing by virtue of, the laws of the State of New York; that at all times material herein, Dante Cater- ers has maintained its principal office and place of business at 75-07 31st Avenue, in Jackson Heights, county of Queens, city and State of New York, where it is, and has been at all times material herein, continuously engaged in providing catering facilities for public and private social affairs, including food, beverage, and related services. Dur- ing the year preceding the filing of the complaint herein, which period is representative of its annual operations gen- erally, Dante Caterers, in the course and conduct of its room rental and catering operations, derived gross revenues there- from in excess of $500,000. During said year, which period is representative of its annual operations generally, Dante Caterers, in the course and conduct of its business, pur- chased and caused to be transported and delivered to its place of business foodstuffs, beverages, and other goods and 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to it and received from other enterprises located in the State of New,York, each of which other enterprises had received the said goods and materials in interstate com- merce directly from States of the United States other than the State in which it is located Accordingly, I find and conclude that Dante Caterers is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the policies of the Board to assert jurisdic- tion here. 11 THE LABOR ORGANIZATION INVOLVED Respondent Union, Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111 THE ISSUES 1. Whether Respondent Union and Dante Caterers had entered into any contract or agreement, express or implied, whereby only members of Respondent Union are permitted to provide musical services to patrons of Dante Caterers at its premises, in violation of Section 8(e) of the Act. 2. Whether Respondent Union threatened, coerced, or restrained Dante Caterers with an object of forcing or re- quiring the members of "The Changing Times" to join the Respondent Union. IV THE UNFAIR LABOR PRACTICES A. The Evidence On or about August 8, 1972, Ellen Bowe and John Mar- engo, in contemplation of their forthcoming marriage, en- gaged Dante Caterers to cater a wedding reception at the latter's premises.2 The contract contained, inter also, the following statement : "RULES AND CONDITIONS PRINTED ON RE- VERSE SIDE CONSTITUTE PART OF THIS CONTRACT " Item No. 16 on the reverse side of the contract reads in pertinent part as follows: "Patron agrees that only Union Musicians (A.F. of M.) will be employed by Patron on the premises .. " Notwithstanding the foregoing provision, Bowe and Mar- engo engaged the services of a band known as The Chang- ing Times consisting of Thomas Ortowski, a friend of theirs, Matthew Jakowsky, Daniel Laura, David Velkas, and Andy Camiolo, Jr., all nonunion musicians.3 The wedding reception was held as planned on March 18, 1973. During a break in the playing, Amedeo Basile, super- visor concerts, opera, symphony, ballet of the Respondent Union, appeared at the premises of Dante Caterers, ap- proached Ortowski, identified himself, and inquired wheth- er The Changing Times were union members. Ortowski 2 The contract is not dated , however, it appears that a down payment was made on August 8, 1972 7 The Changing Times is a partnership consisting of the five musicians replied that they were not, whereupon Basile asked, "Don't you know you have to be in the union to play in this hall?" Ortowski replied in the negative. Basile then asked: "How about the bride and groom, don't they know they had to have a union band to play here?" Ortowski replied he did not think they knew. Ortowski then asked whether that also applied to nonunion halls such as V.F.W. To this Basile replied, "If I catch you playing in any of these halls I'm going to have you thrown out." He added that Orlowski and his partners were "very lucky he was there that night, be- cause if the regular representative was there he would throw us out. And if we refused to leave he could throw out all the union musicians and all the waiters and whoever else was in the union." Basile then inquired whether Orlowski and his partners would considerjoining the Union. To this band member Jakowsky replied in the negative, saying that the union was no good. To this, Basile retorted: "You better shut your mouth while you're ahead or else." Basile then offered to permit the band members to enter the Union at a reduced rate and without an audition. Ortowski told him that they would consider the matter 4 After speaking to the musicians, Basile went to the office of Dante Caterers, met with General Manager James Tracy and Banquet Manager Steven Murray. He asked them whether they were aware of the fact that there was a non- union band playing in the Crystal Room (where the Maren- go reception was being held). According to Tracy, Basile made no threat, nor did he ask Tracy to do anything about it. Nevertheless, according to the testimony of William Bon- dinello, maitre d' of the Marengo affair, Murray telephoned him "something to the effect that Dante was liable for a fine, x amount of dollars," and that the Union could stop the music and pull the band out of the house. Murray directed Bondinello to bring the Marengos to the office, which Bon- dinello did. According to Marengo, General Manager Tra- cy told him and his wife that an agent of the musicians' union was present and was going to fine Dante Caterers $600 because the band was not a union band and, in that event, Dante Caterers would charge the Marengos an addi- tional $600; also, their band would not be able to play for the rest of the evening. Marengo asked General Manager Tracy to see what he could do to straighten out the matter. Some time later, Tracy told the Marengos not to worry, that everything had been taken care of. The foregoing testimony of Marengo is substantially corroborated by Mrs. Marengo. Both Mr. and Mrs. Marengo impressed me as honest, straightforward witnesses who were neutrals in this matter, and I credit their testimony. General Manager Tracy admitted having a conversation with the Marengos about the fact that the band was non- union. He testified further that when Mrs. Marengo asked him what would happen, he replied that nothing should happen and later told them that there was no problem. He denied making any statement regarding the possible fine of $600. Later that evening, Maitre d' Bondinello approached Or- towski and, according to Ortowski corroborated by Jakow- sky, complained: "You guys mess us up. We could have The foregoing testimony of Ortowski was substantially corroborated by the other musicians and was not contradicted Union Representative Basile did not testify ASSOCIATED MUSICIANS OF GREATER N.Y. 649 been fined $600 because you guys are not in the union," but added that everything had been straightened out in the office. Bondinello admitted talking to Ortowski and telling him that "there was some trouble in the office that you fellows are not union," but did not recall telling him that Dante Caterers was liable to a fine. As the musicians were leaving, Bondinello told them: "I will see you guys again when you are in the union." Ortowski's testimony in this regard was corroborated by other members of the band. B. Concluding Findings Section 8(b)(4)(ii)(A) makes it an unfair labor practice for a union: . . to threaten, coerce, or restrain any person en- gaged in commerce or in an industry affecting com- merce, where in either case an object thereof is: (A) forcing or requiring any employer or self-em- ployed person to join any labor or employer organi- zation or to enter into any agreement which is prohibited by section 8(e)... . Section 8(e) makes it an unfair labor practice for a union "to enter into any contract or agreement, express or implied, whereby such employer ceases ... doing business with any other person ... . In the context of Section 8(b)(4)(ii)(A), Dante Caterers was, as 'hereinabove found, a "person engaged in com- merce" and the members of The Changing Times were "self-employed person[s]." In the context of Section 8(e), Dante Caterers was an "employer" and the members of The Changing Times were "any other person[s]. " The General Counsel did not prove the existence of a written contract between the Respondent Union and Dante Caterers under which Dante Caterers agreed not to permit nonunion musicians to play in its halls. However, compe- tent evidence establishes that there was an implied agree- ment or understanding to that effect. Thus, the Respondent Union's representatives appeared periodically at the halls of Dante Caterers and on each such occasion, without objec- tion from Dante Caterers, checked to see whether the musi- cians performing there were members of the' Respondent Union. Furthermore, Dante Caterers' standard contract with its patrons contained a provision that only members of the musicians' union would be employed by a patron on the premises of Dante Caterers. Finally, when Union Represen- tative Basile determined that the members of The Changing Times were not members of the Union, he asked Bandlead- er Ortowski, "Don't you know you have to be in the union to play in this hall?" and, again, "How about the bride and groom, don't they know they had to have a union band to play here?" The record also establishes the fact that the Respondent Union threatened Dante Caterers with retaliation because it permitted The Changing Times, a nonunion band to play at its premises. Thus, after Union Representative Basile complained to General Manager Tracy that there was a nonunion band playing on the premises, Tracy immediately summoned the Marengos to his office. It is inconceivable that, if Basile did not make a threat to Tracy, the latter would have summoned the Marengos, his customers, to the office merely to ask them whether they were aware of the fact that the band they had hired was nonunion. Further- more, although on direct examination, Tracy testified that he merely asked the Marengos, as above noted, whether they were aware of the fact that their band was not union, he admitted on cross-examination that, as set forth in an earlier statement given to a Board agent, he had told the Marengos that there might be trouble about the band since they were not union. He also admitted on cross-examina- tion that he had had several conversations with Basile on other occasions during which Basile had informed him that if nonunion bands were permitted to play on the premises, union bands might refuse to play and that the Union might pull out its musicians. Furthermore, although he denied telling the Marengos that Dante Caterers might be fined $600 by the Union, the Marengos, whose testimony I credit, testified that Tracy did make such a statement to them and added that, if Dante Caterers were so fined, the fine would be added to the Marengos' bill. Also, as noted above, Bondi- nello testified that he had been informed to that effect by Murray .5 Based upon my observation of Tracy's demeanor while testifying, I do not credit his testimony that Union Repre- sentative Basile did not threaten him. To the contrary, the facts set forth above convince me, and I find, that the truth is the opposite of his testimony. N.L.R.B. v. Walton Manu- facturing Company, 369 U.S. 404, 408 (1962): Dyer v. Mac- Dougall, 201 F.2d 265, 269 (C.A. 2); N.L R.B. v. Howell Chevrolet Company, 204 F.2d 79, 86 (C.A. 9); N.L.R.B. v. United Mineral '& Chemical Corporation, 391 F.2d 829, 833 (C.A. 2, 1968). It should be emphasized that in finding that the Respon- dent Union threatened Dante Caterers, I do not rely upon the testimony of the Marengos, Bondinello, and various members of The Changing Times as to what they were told by any representative of Dante Caterers regarding the levy- ing of a fine by the Respondent Union Dante Caterers or that there was trouble with the Respondent Union. Such testimony is hearsay as to the Respondent Union. However, I can and do rely on such testimony as contradicting Tracy's bland assertion that Basile did not threaten Dante Caterers with retaliatory action and as demonstrating the untruthful- ness of Tracy's testimony in this regard. In this connection, it should be noted that Tracy's action in summoning the Marengos to the office immediately after his conversation with Basile is not hearsay and is relied upon as contributing to the inference that Union Representative Basile did threaten Dante Caterers with retaliatory action. The recent decision in Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO (Huntington Town House, Inc.), 203 NLRB 1078, 5 The testimony of Banquet Manager Murray neither adds nor detracts from the foregoing Murray, called as a witness for the Respondent, was examined primarily as to whether there was any agreement between the Respondent Union and Dante Caterers regarding a restriction as to the use of nonunion musicians on the latter's premises. With regard to whether Union Representative Basile told him that Dante Caterers was being fined $600 for allowing a nonunion band to play, Murray answered: "As far as I remember I did not even speak to him on that night." 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is dispositive of the instant case. Respondent recognizes the force of the Huntington decision, but argues that the case is not controlling because of factual differences between that case and the instant proceeding. That there are factual dif- ferences between the two cases is, of course, true, but, upon analysis, I conclude that the differences are matters of de- gree rather than of substance. Thus, in Huntington, the ca- terer freely admitted the existence of an agreement with the Union, whereas in the instant case the representatives of Dante Capteres testified that they were not aware of any such contract. However, despite such testimony, I have found that there was an implied agreement or under- standing between Dante Caterers and the Respondent Union. In Huntington, the Union with the cooperation of the caterer succeeded in preventing the nonunion musician from performing, while in the instant case representatives of Dante Caterers apparently mollified the union representa- tive, and the nonunion band was permitted to continue to perform. However, it is well settled that threats "do not escape the pale of an unfair labor practice because they were not executed or that they did not have the expected or desired result" (Progressive Mine Workers [Randolph Con- tractors] v. N.L.R.B., 187 F.2d 298, 301 (C.A. 7) ). See also Local 542, International Union of Operating Engineeers v. N.L R.B., 328 F.2d 850, 852-853 (C.A. 3, 1964), cert. denied 379 U.S. 826 (1964). In sum, I find and conclude that the Respondent Union and Dante Caterers entered into an implied contract where- by Dante Caterers ceased or refrained or agreed to cease or refrain from permitting nonunion musicians to play in its halls, in violation of Section 8(e) of the Act. I further find and conclude that the Respondent Union threatened Dante Caterers with an object of forcing or requiring the members of "The Changing Times" tojoin the Respondent Union, in violation of Section 8(b)(4)(n)(A). V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in sec- tion IV, above, occurring in connection with the operations of Dante Caterers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI THE REMEDY Having found that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(e) and 8(b)(4)(ii)(A) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The General Counsel requests a broad cease-and-desist order as a remedy in the instant case, pointing out that the Respon- dent Union was found guilty of identical violations of Sec- tion 8(e) and of 8(b)(4)(n)(A) and (B) of the Act in the Huntington case, supra. In addition, he points out that the Respondent has been found to have engaged in secondary activity violative of Section 8(b)(4) in at least two recently adjudicated cases.6 I find that there is real danger that Re- spondent Union may in the future engage in unlawful activ- ity of the same or similar kind as those found here. Accordingly, I shall recommend the entry of a broad order designed to extend the protection of the Act to employers other than those here involved. CONCLUSIONS OF LAW 1. Dante Caterers is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Changing Times is a partnership consisting of five musicians who are persons within the meaning of Section 2(l) and 8(e) of the Act and are self-employed persons within the meaning of Section 8(b)(4)(n)(A) of the Act. 4. Respondent Union violated Section 8(e) of the Act by entering into an implied agreement or understanding with Dante Caterers under which only members of the Respon- dent Union would be allowed to perform on Dante Cater- ers' premises. 5. By threatening Dante Caterers with an object of forc- ing or requiring Dante Caterers to maintain and enforce the aforesaid agreement, and with the further object of forcing or requiring the members of The Changing Times tojoin the Respondent Union, Respondent violated Section 8(b)(4)(ii)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 6Associated Musicians of Greater New York, Local 802, 176 NLRB 198 (1969); Associated Musicians of Greater New York (Random Travel, Inc ), 171 NLRB 1106 (1968) It is significant that in the former decision, the Board granted a "broad" order in lieu of the "narrow" recommended order See fn 2 at 176 NLRB 198