Puerto Rico Hotel Association

PUERTO RICO HOTEL ASSOCIATION 429 Puerto Rico Hotel Association and Federacion de ORDER Musicos de Puerto Rico, Local 468, American MFederation of Musicians, LAF l 468,CIO Pursuant to Section 10(c) of the National Labor d Juan Hot Co r atn, A Relations Act, as amended, the National Labor Re- San Juan Hotel Corporation, d/b/a l San JPuan lations Board adopts as its Order the recommended RicoHote l Corporaton d/b/a The Palace Order of the Administrative Law Judge and Hotel and Federacion de Musicos de Puerto hereby orders that the Respondents, Puerto Rico Rico, Local 468, American Federation of Musi- Hotel Association; San Juan Hotel Corporation, cians, AFL-CIO d/b/a El San Juan Hotel and El Conquistador Hilton International Company d/b/a Caribe Hilton Hotel; The Puerto Rico Hotel Corporation d/b/a Hotel and Federacion de Musicos de Puerto The Palace Hotel; Hilton International Company Rico, Local 468, American Federation of Musi- d/b/a Caribe Hilton Hotel; Condado Holiday Inn; cians, AFL-CIO and Hilton International Company d/b/a La Condado Holiday Inn and Federacion de Musicos de Concha Hotel-Condado Beach Hotel, all of San Puerto Rico, Local 468, American Federation of Juan, Puerto Rico, their officers, agents, successors, Musicians, AFL-CIO and assigns shall take the action set forth in the Hilton International Company d/b/a La Concha said recommended Order.3 Hotel-Condado Beach Hotel and Federacion de Musicos de Puerto Rico, Local 468, American cost deducted from their paychecks; the granting of a 25-percent discount Musicos de Puerto Rico, Local 468, American on purchases made by musicians; granting a leave of absence to a musi- Federation of Musicians, AFL-CIO. Cases 24- cian because of illness; imposing deductions on musicians as a result of CA-4109, 24-CA-4193, 24-CA-4110, 24-CA- absences; and paying for advertisements for musical groups currently per- 4190, 24-CA-4305, and 24-CA-4306 forming ' Because of the large number of Spanish-speaking persons employed December 1, 1981 by the Respondent hotels, we hereby direct that the notices to be posted pursuant hereto be posted in both English and Spanish. DECISION AND ORDER DECISION BY CHAIRMAN VAN DE WATER AND M EMBERS JENKINS AND HUNTER ADJAMES F. MORTON, Administrative Law Judge: These consolidated cases were heard by me between April 21 On March 16, 1981, Administrative Law Judge and May 16, 1980, in San Juan, Puerto Rico. James F. Morton issued the attached Decision in Based on unfair labor practice charges filed by Federa- this proceeding. Thereafter, Respondents, the Gen- cion de Musicos de Puerto Rico, Local 468, American eral Counsel, and the Charging Party filed excep- Federation of Musicians, AFL-CIO (herein called the tions and supporting briefs. Union), the amended complaints allege violations of Sec- Pursuant to the provisions of Section 3(b) of the tion 8(a)(l), (3), and (5) of the National Labor Relations National Labor Relations Act, as amended, the Na- Act, as amended (herein called the Act). The principal tional Labor Relations Board has delegated its au- issue in these cases, precisely stated, is whether the band thority in this proceeding to a three-member panel. leaders and the leaders of the smaller groups of musi- The Board has considered the record and the at- cians who perform in the large hotels in Puerto Rico on tached Decision in light of the exceptions and a steady engagement basis' are supervisors employed by briefs and has decided to affirm the rulings, find- the hotels to direct their musicians-employees or whether ings, and conclusions of the Administrative Law these leaders are independent contractors who them- gs. and conclusions of the Administrative Law selves, and not the hotels, are the employers of these mu- Judge and to adopt his recommended Order. sicians. At the hearing, the parties referred to this issue -~ ---- . ~~~~~~~more concisely as whether the musicians were independ- The Charging Party and Respondents Hilton International Company r i tr t d/b/a Caribe Hilton Hotel, and Hilton International Company d/b/a La ent contractors or employees of the hotels. On the prem- Concha Hotel-Condado Beach Hotel have excepted to certain credibility ise that the musicians involved have been employees findings made by the Administrative Law Judge. It is the Board's estab- within the meaning of Section 2(3) of the Act of the re- lished policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Stand- are part of the hotels' management structures, the Gener- ard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d al Counsel set forth in the consolidated complaint the al- Cir. 1951). We have carefully examined the record and find no basis for legations summarized below. All the Respondents chal- reversing his findings. For the reasons stated by the Administrative Law Judge in his Deci- lenge the validity of that premise and urge dismissal of sion, we agree that the regular engagement musicians employed by the the complaint on the ground that none of the musicians Respondent hotels are employees of said hotels within the meaning of are hotel employees. The other issues and the respective Sec. 2(3) of the Act, and that the leaders of such musicians are supervi- sors within the meaning of Sec. 2(11) of the Act. In this regard we note positions of the parties thereon are now discussed. The the following specific incidents of the exercise of control over the musi- cians by the hotels which were not specifically noted by the Administra- 'An engagement is said to be "steady" when done for 5 or more days tive Law Judge: the granting of "ledger privileges" whereby musicians in I week or for 2 or more days in each of 2 or more weeks. Anything could obtain food and beverages by signing the check and having the less is said to be a "single engagement." 259 NLRB No. 58 PUERTO RICO HOTEL ASSOCIATION 429 Puerto Rico Hotel Association and Federacion de ORDER Musicos de Puerto Rico, Local 468, American ., „, „ , Federation of Musicians. AFl 4CIOi Pursuant to Section 10(c) of the National Labor Federation of Musicia.„, AFL-CIO Relations Act, as amended, the National Labor Re- San Juan Hotel Corporation, d/b/a El San Juan lations Board adopts as its Order the recommended Hotel and El Conquistador Hotel; The Puerto Order of the Administrative Law Judge and Rico Hotel Corporation d/b/a The Palace h r eb or the Responde Pue Rid Hotel and Federacion de Musicos de Puerto "^y o rd e rs th a t th e Respondents, Puerto Rico Rico, Local 468, American Federation of Musi- Ho te l Association; San Juan Hotel Corporation, cians, AFL-CIO d/b/a El San Juan Hotel and El Conquistador Hilton International Company d/b/a Caribe Hilton Hotel; The P u e r to R ic o H o te l Corporation d / b / a Hotel and Federacion de Musicos de Puerto T h e P a la c e H o te l; H ilto n International Company Rico, Local 468, American Federation of Musi- d/b/a Caribe Hilton Hotel; Condado Holiday Inn; cians, AFL-CIOand Hilton International Company d/b/a La Condado Holiday Inn and Federacion de Musicos de Concha Hotel-Condado Beach Hotel, all of San Puerto Rico, Local 468, American Federation of J u an , Puerto Rico, their officers, agents, successors, Musicians, AFL-CIO and assigns shall take the action set forth in the Hilton International Company d/b/a La Concha said recommended Order.' Hotel-Condado Beach Hotel and Federacion de--- o.itl-- Co n o ..__ oe and~l Aede Aionf-e_ cost deducted from their paychecks; the granting of a 25-percent discount Musicos de Puerto Rico, Local 4", American on purchases made by musicians; granting a leave of absence to a musi- Federation Of Musicians, AFL-C00. Cases 24- cian because of illness; imposing deductions on musicians as a result of CA-4109, 24-CA-4193, 24-CA-4110, 24-CA- absences; and paying for advertisements for musical groups currently per- 4190, 24-CA-4305, and 24-CA-4306 forming. ' Because of the large number of Spanish-speaking persons employed December 1, 1981 by the Respondent hotels, we hereby direct that the notices to be posted pursuant hereto be posted in both English and Spanish. DECISION AND ORDER DECISION BY CHAIRMAN VAN DE WATER AND. . ,, * - - Ti By CHAIRMAN N V AN DE WATER ANDJAMES F. MORTON, Administrative Law Judge: These consolidated cases were heard by me between April 21 On March 16, 1981, Administrative Law Judge and May 16, 1980, in San Juan, Puerto Rico. James F. Morton issued the attached Decision in Based on unfair labor practice charges filed by Federa- this proceeding. Thereafter, Respondents, the Gen- cion de Musicos de Puerto Rico, Local 468, American eral Counsel, and the Charging Party filed excep- Federation of Musicians, AFL-CIO (herein called the tions and supporting briefs. Union), the amended complaints allege violations of Sec- Pursuant to the provisions of Section 3(b) of the tion 8(a)(l), (3), and (5) of the National Labor Relations National Labor Relations Act, as amended, the Na- A c t, as amended (herein called the Act). The principal tional Labor Relations Board has delegated its au- is su e in t h e se cas es, precisely stated, is whether the band thority in this proceeding to a three-member panel. le ader s an d t h e l ead e rs o f t h e s m al le r groups o f m usi- The Board has considered the record and the at- c i an s w h o perform i n t h e large h o t el s in P u er t o Rico o n tached Decision in light of the exceptions and a steady engagement basis' are supervisors employed by briefs and has decided to affirm the rulings, find- t h e h o t el s t o d ir ec t t h e ir musicians-employees or whether ing,' and conclusions' of the Administrative Law these leaders are independent contractors who them- Jugse and conclusions of the Administrative Law selves, and not the hotels, are the employers of these mu- Judge and to adopt his recommended Order. sicians. At the hearing, the parties referred to this issue -~ ---- ~~~~~~~~~~~more concisely as whether the musicians were indcpcnd- 'The Charging Party and Respondents Hilton International Company m c a rthm iciaswrin d/b/a Caibe Hilton Hotel, and Hilton International Company d/b/a La en t contractors or employees of the hotels. On the prem- Concha Hotel-Condado Beach Hotel have excepted to certain credibility ise that the musicians involved have been employees findings made by the Administrative Law Judge. It is the Board's estab- within the meaning of Section 2(3) of the Act of the re- isheSd policy not to overrule an administrative law judge's resolutions spective hotels and have been supervised by leaders who with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Stand- are part of the hotels' management Structures, the Gener- ard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d al Counsel set forth in the consolidated complaint the al- Cir. 1951). We have carefully examined the record and find no basis for legations Summarized below. All the Respondents chal- reversing his findings. IFor the reasons stated by the Administrative Law Judge in his Deci- lenge the validity of that premise and Urge dismissal of sion, we agree that the regular engagement musicians employed by the the complaint on the ground that none of the musicians Respondent hotels are employees of said hotels within the meaning of are hotel employees. The Other issues and the respective Sec. 2(3) of the Act, and that the leaders of such musicians are supervi- oion t pre hro a o dsue. e within the meaning of Sec. 2(1) of the Act. In this regard we notenow discussed. The the following specific incidents of the exercise of control over the musi- cians by the hotels which were not specifically noted by the Administra- An engagement is said to be "steady" when done for 5 or more days tive Law Judge: the granting of "ledger privileges" whereby musicians in I week or for 2 or more days in each of 2 or more weeks. Anything could obtain food and beverages by signing the check and having the less is said to be a "single engagement." 259 NLRB No. 58 PUERTO RICO HOTEL ASSOCIATION 429 Puerto Rico Hotel Association and Federacion de ORDER Musicos de Puerto Rico, Local 468, American ., „, „ , Federation of Musicians. AFl 4CIOi Pursuant to Section 10(c) of the National Labor Federation of Musicia.„, AFL-CIO Relations Act, as amended, the National Labor Re- San Juan Hotel Corporation, d/b/a El San Juan lations Board adopts as its Order the recommended Hotel and El Conquistador Hotel; The Puerto Order of the Administrative Law Judge and Rico Hotel Corporation d/b/a The Palace h r eb or the Responde Pue Rid Hotel and Federacion de Musicos de Puerto "^y o rd e rs th a t th e Respondents, Puerto Rico Rico, Local 468, American Federation of Musi- Ho te l Association; San Juan Hotel Corporation, cians, AFL-CIO d/b/a El San Juan Hotel and El Conquistador Hilton International Company d/b/a Caribe Hilton Hotel; The P u e r to R ic o H o te l Corporation d / b / a Hotel and Federacion de Musicos de Puerto T h e P a la c e H o te l; H ilto n International Company Rico, Local 468, American Federation of Musi- d/b/a Caribe Hilton Hotel; Condado Holiday Inn; cians, AFL-CIOand Hilton International Company d/b/a La Condado Holiday Inn and Federacion de Musicos de Concha Hotel-Condado Beach Hotel, all of San Puerto Rico, Local 468, American Federation of J u an , Puerto Rico, their officers, agents, successors, Musicians, AFL-CIO and assigns shall take the action set forth in the Hilton International Company d/b/a La Concha said recommended Order.' Hotel-Condado Beach Hotel and Federacion de--- o.itl-- Co n o ..__ oe and~l Aede Aionf-e_ cost deducted from their paychecks; the granting of a 25-percent discount Musicos de Puerto Rico, Local 4", American on purchases made by musicians; granting a leave of absence to a musi- Federation Of Musicians, AFL-C00. Cases 24- cian because of illness; imposing deductions on musicians as a result of CA-4109, 24-CA-4193, 24-CA-4110, 24-CA- absences; and paying for advertisements for musical groups currently per- 4190, 24-CA-4305, and 24-CA-4306 forming. ' Because of the large number of Spanish-speaking persons employed December 1, 1981 by the Respondent hotels, we hereby direct that the notices to be posted pursuant hereto be posted in both English and Spanish. DECISION AND ORDER DECISION BY CHAIRMAN VAN DE WATER AND. . ,, * - - Ti By CHAIRMAN N V AN DE WATER ANDJAMES F. MORTON, Administrative Law Judge: These consolidated cases were heard by me between April 21 On March 16, 1981, Administrative Law Judge and May 16, 1980, in San Juan, Puerto Rico. James F. Morton issued the attached Decision in Based on unfair labor practice charges filed by Federa- this proceeding. Thereafter, Respondents, the Gen- cion de Musicos de Puerto Rico, Local 468, American eral Counsel, and the Charging Party filed excep- Federation of Musicians, AFL-CIO (herein called the tions and supporting briefs. Union), the amended complaints allege violations of Sec- Pursuant to the provisions of Section 3(b) of the tion 8(a)(l), (3), and (5) of the National Labor Relations National Labor Relations Act, as amended, the Na- A c t, as amended (herein called the Act). The principal tional Labor Relations Board has delegated its au- is su e in t h e se cas es, precisely stated, is whether the band thority in this proceeding to a three-member panel. le ader s an d t h e l ead e rs o f t h e s m al le r groups o f m usi- The Board has considered the record and the at- c i an s w h o perform i n t h e large h o t el s in P u er t o Rico o n tached Decision in light of the exceptions and a steady engagement basis' are supervisors employed by briefs and has decided to affirm the rulings, find- t h e h o t el s t o d ir ec t t h e ir musicians-employees or whether ing,' and conclusions' of the Administrative Law these leaders are independent contractors who them- Jugse and conclusions of the Administrative Law selves, and not the hotels, are the employers of these mu- Judge and to adopt his recommended Order. sicians. At the hearing, the parties referred to this issue -~ ---- ~~~~~~~~~~~more concisely as whether the musicians were indcpcnd- 'The Charging Party and Respondents Hilton International Company m c a rthm iciaswrin d/b/a Caibe Hilton Hotel, and Hilton International Company d/b/a La en t contractors or employees of the hotels. On the prem- Concha Hotel-Condado Beach Hotel have excepted to certain credibility ise that the musicians involved have been employees findings made by the Administrative Law Judge. It is the Board's estab- within the meaning of Section 2(3) of the Act of the re- isheSd policy not to overrule an administrative law judge's resolutions spective hotels and have been supervised by leaders who with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Stand- are part of the hotels' management Structures, the Gener- ard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d al Counsel set forth in the consolidated complaint the al- Cir. 1951). We have carefully examined the record and find no basis for legations Summarized below. All the Respondents chal- reversing his findings. IFor the reasons stated by the Administrative Law Judge in his Deci- lenge the validity of that premise and Urge dismissal of sion, we agree that the regular engagement musicians employed by the the complaint on the ground that none of the musicians Respondent hotels are employees of said hotels within the meaning of are hotel employees. The Other issues and the respective Sec. 2(3) of the Act, and that the leaders of such musicians are supervi- oion t pre hro a o dsue. e within the meaning of Sec. 2(1) of the Act. In this regard we note p thereon are now discussed. The the following specific incidents of the exercise of control over the musi- cians by the hotels which were not specifically noted by the Administra- An engagement is said to be "steady" when done for 5 or more days tive Law Judge: the granting of "ledger privileges" whereby musicians in I week or for 2 or more days in each of 2 or more weeks. Anything could obtain food and beverages by signing the check and having the less is said to be a "single engagement." 259 NLRB No. 58 PUERTO RICO HOTEL ASSOCIATION 429 Puerto Rico Hotel Association and Federacion de ORDER Musicos de Puerto Rico, Local 468, American ., „, „ , Federation of Musicians. AFl 4CIOi Pursuant to Section 10(c) of the National Labor Federation of Musicia.„, AFL-CIO Relations Act, as amended, the National Labor Re- San Juan Hotel Corporation, d/b/a El San Juan lations Board adopts as its Order the recommended Hotel and El Conquistador Hotel; The Puerto Order of the Administrative Law Judge and Rico Hotel Corporation d/b/a The Palace h r eb or the Responde Pue Rid Hotel and Federacion de Musicos de Puerto "^y o rd e rs th a t th e Respondents, Puerto Rico Rico, Local 468, American Federation of Musi- Ho te l Association; San Juan Hotel Corporation, cians, AFL-CIO d/b/a El San Juan Hotel and El Conquistador Hilton International Company d/b/a Caribe Hilton Hotel; The P u e r to R ic o H o te l Corporation d / b / a Hotel and Federacion de Musicos de Puerto T h e Palace Hotel; Hilton International Company Rico, Local 468, American Federation of Musi- d/b/a Caribe Hilton Hotel; Condado Holiday Inn; cians, AFL-CIOand Hilton International Company d/b/a La Condado Holiday Inn and Federacion de Musicos de Concha Hotel-Condado Beach Hotel, all of San Puerto Rico, Local 468, American Federation of J u an , Puerto Rico, their officers, agents, successors, Musicians, AFL-CIO and assigns shall take the action set forth in the Hilton International Company d/b/a La Concha said recommended Order.' Hotel-Condado Beach Hotel and Federacion de--- o.itl-- Co n o ..__ oe and~l Aede Aionf-e_ cost deducted from their paychecks; the granting of a 25-percent discount Musicos de Puerto Rico, Local 4", American on purchases made by musicians; granting a leave of absence to a musi- Federation Of Musicians, AFL-C00. Cases 24- cian because of illness; imposing deductions on musicians as a result of CA-4109, 24-CA-4193, 24-CA-4110, 24-CA- absences; and paying for advertisements for musical groups currently per- 4190, 24-CA-4305, and 24-CA-4306 forming. ' Because of the large number of Spanish-speaking persons employed December 1, 1981 by the Respondent hotels, we hereby direct that the notices to be posted pursuant hereto be posted in both English and Spanish. DECISION AND ORDER DECISION BY CHAIRMAN VAN DE WATER AND. . ,, * - - Ti By CHAIRMAN N V AN DE WATER ANDJAMES F. MORTON, Administrative Law Judge: These consolidated cases were heard by me between April 21 On March 16, 1981, Administrative Law Judge and May 16, 1980, in San Juan, Puerto Rico. James F. Morton issued the attached Decision in Based on unfair labor practice charges filed by Federa- this proceeding. Thereafter, Respondents, the Gen- cion de Musicos de Puerto Rico, Local 468, American eral Counsel, and the Charging Party filed excep- Federation of Musicians, AFL-CIO (herein called the tions and supporting briefs. Union), the amended complaints allege violations of Sec- Pursuant to the provisions of Section 3(b) of the tion 8(a)(l), (3), and (5) of the National Labor Relations National Labor Relations Act, as amended, the Na- A c t, as amended (herein called the Act). The principal tional Labor Relations Board has delegated its au- is su e in t h e se cas es, precisely stated, is whether the band thority in this proceeding to a three-member panel. le ader s an d t h e l ead e rs o f t h e s m al le r groups o f m usi- The Board has considered the record and the at- c i an s w h o perform i n t h e large h o t el s in P u er t o Rico o n tached Decision in light of the exceptions and a steady engagement basis' are supervisors employed by briefs and has decided to affirm the rulings, find- t h e h o t el s t o d ir ec t t h e ir musicians-employees or whether ing,' and conclusions' of the Administrative Law these leaders are independent contractors who them- Jugse and conclusions of the Administrative Law selves, and not the hotels, are the employers of these mu- Judge and to adopt his recommended Order. sicians. At the hearing, the parties referred to this issue -~ ---- ~~~~~~~~~~~more concisely as whether the musicians were indcpcnd- 'The Charging Party and Respondents Hilton International Company m c a rthm iciaswrin d/b/a Caibe Hilton Hotel, and Hilton International Company d/b/a La en t contractors or employees of the hotels. On the prem- Concha Hotel-Condado Beach Hotel have excepted to certain credibility ise that the musicians involved have been employees findings made by the Administrative Law Judge. It is the Board's estab- within the meaning of Section 2(3) of the Act of the re- isheSd policy not to overrule an administrative law judge's resolutions spective hotels and have been supervised by leaders who with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Stand- are part of the hotels' management Structures, the Gener- ard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d al Counsel set forth in the consolidated complaint the al- Cir. 1951). We have carefully examined the record and find no basis for legations Summarized below. All the Respondents chal- reversing his findings. IFor the reasons stated by the Administrative Law Judge in his Deci- lenge the validity of that premise and Urge dismissal of sion, we agree that the regular engagement musicians employed by the the complaint on the ground that none of the musicians Respondent hotels are employees of said hotels within the meaning of are hotel employees. The Other issues and the respective Sec. 2(3) of the Act, and that the leaders of such musicians are supervi- oion t pre hro a o dsue. e within the meaning of Sec. 2(1) of the Act. In this regard we note p thereon are now discussed. The the following specific incidents of the exercise of control over the musi- cians by the hotels which were not specifically noted by the Administra- An engagement is said to be "steady" when done for 5 or more days tive Law Judge: the granting of "ledger privileges" whereby musicians in I week or for 2 or more days in each of 2 or more weeks. Anything could obtain food and beverages by signing the check and having the less is said to be a "single engagement." 259 NLRB No. 58 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's positions throughout are the same as the General Concha Hotel-Condado Beach Hotel, in violation of Sec- Counsel's. tion 8(aX1) and (5) of the Act, executed contracts with The General Counsel alleges that Respondent, Puerto leaders of musicians employed respectively by them, Rico Hotel Association (herein called the Respondent which contracts purport to classify those musician em- Association) in the course of bargaining collectively with ployees as employees solely of the leaders who also are the Union vis-a-vis a renewal contract covering the unit purported therein to be "independent contractors." of musicians employed on a steady basis by, inter alia, The General Counsel separately asserts that one of the the Caribe Hilton Hotel, the El San Juan Hotel, the El Respondent hotels, the Caribe Hilton Hotel, also violated Conquistador Hotel, The Palace Hotel, the Condado Section 8(a)(1) and (3) of the Act by having, through its Holiday Inn and lastly the La Concha Hotel-Condado supervisor, Band Leader Jose Juan Pinero, discharged Beach Hotel, acted in derogation of the Union's repre- Pedro Chiclana, a musician in its employ, because of his sentative status and in violation of Section 8(a)(1) and (5) activities on behalf of the Union and in order to discour- of the Act by: age membership in the Union. In addition, Respondent (a) conditioning further collective bargaining at Caribe Hilton Hotel is alleged to have violated Section various times, upon the Union's conceding that the 8 (aX 1) of the Act by having, through Pinero, (a) threat- musicians in the unit are not hotel employees, ened musicians to induce them to refrain from supporting (b) suspending bargaining at another point be- the Union, (b) created the impression that their union ac- cause the Union had filed unfair labor practice tivities were under surveillance, and (c) engaged in other charges with the Board's regional office against the independent acts, as specified in the consolidated com- Respondent Association, plaint. Respondent Caribe Hilton Hotel avers that Chi- (c) changing unilaterally the wording of the re- dana was never in its employ and seeks dismissal of cognitional clause of the renewal collective bargain- these allegations on that basis. Alternatively it contends ing contract after agreement thereon had been that Pinero's termination of Chiclana's employment was reached, and unrelated to any union considerations and that the ab- (d) encouraging its member hotels to use types of sence of proof of unlawful discrimination requires dis- form contracts when employing musicians so as to missal of the allegation involving Section 8(a)() and (3). make it appear that the musicians are not employees It also seeks dismissal of the allegations of the independ- of the respective hotels. ent 8(aXl) violations on the ground that the record evi- dence does not support any findings of such violations. The Respondent Association and its member-hotels I have considered the entire record in these cases, 2 the contend that, even if it were found that the musicians are demeanor of the witnesses at the hearing and the briefs employees of the hotels, the 8(a)(1) and (5) allegations of filed by the parties. Based on these considerations, I the complaint against the Respondent Association should make the following: still be dismissed on the ground that: FINDINGS OF FACT (a) the unit of musicians is inappropriate as historically the group negotiations included all the 1. THE PARTIES leaders whom General Counsel would exclude as supervisors and as the leaders also actively partici- The Respondent Association was incorporated in 1950 pated in the Union's internal affairs. as a nonprofit association to promote the business inter- (b) the Union never represented an uncoerced ests and welfare of hotels in Puerto Rico, to promote majority of musicians because the Union operated a legislation on their behalf, to promote tourism, to pro- de facto closed shop whereby no musician could mulgate matters of interest to persons engaged in the perform in any hotel in Puerto Rico unless he first hotel and restaurant business, and to do "any and all had joined the Union. 2 After the hearing had closed and in accordance with the procedure The General Counsel further alleges that Respondents set on the last day of the hearing, counsel for the General Counsel sub- El San Juan Hotel, El Conquistador Hotel, and The mitted to me a copy of an affidavit sworn to in the course of an earlier case, by the general manager of the El San Juan Hotel. Counsel for the Palace Hotel, as a single enterprise, violated Section El San Juan Corporation objects to the affidavit being in evidence. That 8(a)(l) and (5) by their untimely withdrawal from the affidavit had at a previous point in the hearing been marked for identifi- collective bargaining that had been underway between cation as G.C. Exh. 112 and was offered in evidence then by the General the Respondent Association as their joint bargaining rep- Counsel to insure that the record in this case would contain in its entirety the contents of par. 12 thereof. The General Counsel, however, had im- resentative and the Union respecting the musicians' unit mediately thereafter withdrawn G.C. Exh. 112 when it was obvious that involved herein and by thereafter refusing to bargain col- the hotel's general manager had just read the whole of that paragraph lectively with the Union. These three hotels, by their into the record. I shall sustain the objection as apparently the affidavit is joint counsel, deny that they ever designated the Re- theow being offered for a broader purpose than was contemplated when ~~~~~spondent Asocitio asther rprsenathe general manager was available as a witness. G.C. Exh. 112 is being spondent Association as their representative for the put- placed in the file containing the rejected exhibits. pose of collective bargaining and thus aver that they Pursuant to the arrangements also established on the last day of the never withdrew in an untimely manner from any negoti- hearing, I shall take administrative notice of sees. 3141 and 3143 of Title ations. 13 of the laws of Puerto Rico and shall receive in evidence copies thereof T nral nl lc n as G.C. Exh. 138. Further administrative notice will also be taken of secs. The General Counsel also contends that Respondents 3119 and 3411 and copies thereof are received in evidence as Reap. Caribe Hilton Hotel, Condado Holiday Inn, and La Assoc. Exh. 60. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's positions throughout are the same as the General Concha Hotel-Condado Beach Hotel, in violation of Sec- Counsel's. tion 8(aXl) and (5) of the Act, executed contracts with The General Counsel alleges that Respondent, Puerto leaders of musicians employed respectively by them, Rico Hotel Association (herein called the Respondent which contracts purport to classify those musician em- Association) in the course of bargaining collectively with ployees as employees solely of the leaders who also are the Union vis-a-vis a renewal contract covering the unit purported therein to be "independent contractors." of musicians employed on a steady basis by, inter alia, The General Counsel separately asserts that one of the the Caribe Hilton Hotel, the El San Juan Hotel, the El Respondent hotels, the Caribe Hilton Hotel, also violated Conquistador Hotel, The Palace Hotel, the Condado Section 8(a)(l) and (3) of the Act by having, through its Holiday Inn and lastly the La Concha Hotel-Condado supervisor, Band Leader Jose Juan Pinero, discharged Beach Hotel, acted in derogation of the Union's repre- Pedro Chiclana, a musician in its employ, because of his sentative status and in violation of Section 8(a)(l) and (5) activities on behalf of the Union and in order to discour- of the Ac t by : age membership in the Union. In addition, Respondent (a) conditioning further collective bargaining at Ca r ib e H il t o n H o t e l i s alleged to h a v e violated Section various times, upon the Union's conceding that the 8(aX 1) of the Act by having, through Pinero, (a) threat- musicians in the unit are not hotel employees, e n e d musicians to induce them to refrain from supporting (b) suspending bargaining at another point be- t h e Union, (b) created the impression that their union ac- cause the Union had filed unfair labor practice tivities were under surveillance, and (c) engaged in other charges with the Board's regional office against the independent acts, as specified in the consolidated com- Respondent Association, plaint. Respondent Caribe Hilton Hotel avers that Chi- (c) changing unilaterally the wording of the re- dc a n a was never in its employ and seeks dismissal of cognitional clause of the renewal collective bargain- these allegations on that basis. Alternatively it contends ing contract after agreement thereon had been that Pinero's termination of Chiclana's employment was reached, and unrelated to any union considerations and that the ab- (d) encouraging its member hotels to use types of sence of proof of unlawful discrimination requires dis- form contracts when employing musicians so as to missal of the allegation involving Section 8(aXI) and (3). make it appear that the musicians are not employees It also seeks dismissal of the allegations of the independ- of the respective hotels. ent 8(aXI) violations on the ground that the record evi- dence does not support any findings of such violations. The Respondent Association and its member-hotels I have considered the entire record in these cases, 2 the contend that, even if it were found that the musicians are demeanor of the witnesses at the hearing and the briefs employees of the hotels, the 8(a)(l) and (5) allegations of filed by the parties. Based on these considerations, I the complaint against the Respondent Association should make the following: still be dismissed on the ground that: , . , . . . .~~~~~~~~~FINDINGS OF FACT (a) the unit of musicians is inappropriate as historically the group negotiations included all the 1. THE PARTIES leaders whom General Counsel would exclude as supervisors and as the leaders also actively partici- The Respondent Association was incorporated in 1950 pated in the Union's internal affairs. a s a nonprofit association to promote the business inter- (b) the Union never represented an uncoerced ests and welfare of hotels in Puerto Rico, to promote majority of musicians because the Union operated a legislation on their behalf, to promote tourism, to pro- de facto closed shop whereby no musician could mulgate matters of interest to persons engaged in the perform in any hotel in Puerto Rico unless he first hotel and restaurant business, and to do "any and all had joined the Union. 2 After the hearing had closed and in accordance with the procedure The General Counsel further alleges that Respondents s e t on t h e l a s t day o f t h e hearing, counsel for the General Counsel sub- El San Juan Hotel, El Conquistador Hotel, and The mitted to me a copy of an affidavit sworn to in the course of an earlier Dalace uotel, »„ * single ente_*rise, * i '-ite Sction . case, by the general manager of the El San Juan Hotel. Counsel for the Palace Hotel, as a Single enterprise, violated Section El San Juan Corporation objects to the affidavit being in evidence. That 8(a)l) and (5) by their untimely Withdrawal from the affidavit had at a previous point in the hearing been marked for identifi- collective bargaining that had been underway between cation as G.c. Exh. 112 and was offered in evidence then by the General the Respondent Association as their joint bargaining rep- Cou"sel t o insur that the record in this case would contain in its entirety the contents of par. 12 thereof. The General Counsel, however, had im- resentative and the Union respecting the musicians' unit mediately thereafter withdrawn G.C. Exh. 112 when it was obvious that involved herein and by thereafter refusing to bargain col- the hotel's general manager had just read the whole of that paragraph lectively with the Union. These three hotels, by their int o t h e record. I shall sustain the objection as apparently the affidavit is joint counsel, deny that they ever designated the Re- " o w b e i n g o f e r e d f o r a b r o t d e r purpose than was contemplated when spondent Association as their representative for the pur- the general manager was available s a witness. G.C. E x h . 11 2 is be i n g sponden Assocation s thei represntativ for te PUT- placed in the file containing the rejected exhibits. pose Of collective bargaining and thus aver that they Pursuant to the arrangements also established on the last day of the never withdrew in an untimely manner from any negoti- hearing, I shall take administrative notice of sees. 3141 and 3143 of Title ations. 1 3 o f t h e l a w s of P u e r t o R ic o a n d shall receive in evidence copies thereof Tli« rieneral <^^,,n.«l «ls c^ ^^ntrx thot ReD ^,^^A»» as G.C. Exh. 138. Further administrative notice will also be taken of sees. - T h e G e n e r a l Counselalso contends that Respondents 3119 and 3411 and copies thereof are received in evidence as Resp. Caribe Hilton Hotel, Condado Holiday Inn, and La Assoc. Exh. 60. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's positions throughout are the same as the General Concha Hotel-Condado Beach Hotel, in violation of Sec- Counsel's. tion 8(aXl) and (5) of the Act, executed contracts with The General Counsel alleges that Respondent, Puerto leaders of musicians employed respectively by them, Rico Hotel Association (herein called the Respondent which contracts purport to classify those musician em- Association) in the course of bargaining collectively with ployees as employees solely of the leaders who also are the Union vis-a-vis a renewal contract covering the unit purported therein to be "independent contractors." of musicians employed on a steady basis by, inter alia, The General Counsel separately asserts that one of the the Caribe Hilton Hotel, the El San Juan Hotel, the El Respondent hotels, the Caribe Hilton Hotel, also violated Conquistador Hotel, The Palace Hotel, the Condado Section 8(a)(l) and (3) of the Act by having, through its Holiday Inn and lastly the La Concha Hotel-Condado supervisor, Band Leader Jose Juan Pinero, discharged Beach Hotel, acted in derogation of the Union's repre- Pedro Chiclana, a musician in its employ, because of his sentative status and in violation of Section 8(a)(l) and (5) activities on behalf of the Union and in order to discour- of the Ac t by : age membership in the Union. In addition, Respondent (a) conditioning further collective bargaining at Ca r ib e H il t o n H o t e l i s alleged to h a v e violated Section various times, upon the Union's conceding that the 8(aX 1) of the Act by having, through Pinero, (a) threat- musicians in the unit are not hotel employees, e n e d musicians to induce them to refrain from supporting (b) suspending bargaining at another point be- t h e Union, (b) created the impression that their union ac- cause the Union had filed unfair labor practice tivities were under surveillance, and (c) engaged in other charges with the Board's regional office against the independent acts, as specified in the consolidated com- Respondent Association, plaint. Respondent Caribe Hilton Hotel avers that Chi- (c) changing unilaterally the wording of the re- dc a n a was never in its employ and seeks dismissal of cognitional clause of the renewal collective bargain- these allegations on that basis. Alternatively it contends ing contract after agreement thereon had been that Pinero's termination of Chiclana's employment was reached, and unrelated to any union considerations and that the ab- (d) encouraging its member hotels to use types of sence of proof of unlawful discrimination requires dis- form contracts when employing musicians so as to missal of the allegation involving Section 8(aXI) and (3). make it appear that the musicians are not employees It also seeks dismissal of the allegations of the independ- of the respective hotels. ent 8(aXI) violations on the ground that the record evi- dence does not support any findings of such violations. The Respondent Association and its member-hotels I have considered the entire record in these cases, 2 the contend that, even if it were found that the musicians are demeanor of the witnesses at the hearing and the briefs employees of the hotels, the 8(a)(l) and (5) allegations of filed by the parties. Based on these considerations, I the complaint against the Respondent Association should make the following: still be dismissed on the ground that: , . , . . . .~~~~~~~~~FINDINGS OF FACT (a) the unit of musicians is inappropriate as historically the group negotiations included all the 1. THE PARTIES leaders whom General Counsel would exclude as supervisors and as the leaders also actively partici- The Respondent Association was incorporated in 1950 pated in the Union's internal affairs. as a nonprofit association to promote the business inter- (b) the Union never represented an uncoerced ests and welfare of hotels in Puerto Rico, to promote majority of musicians because the Union operated a legislation on their behalf, to promote tourism, to pro- de facto closed shop whereby no musician could mulgate matters of interest to persons engaged in the perform in any hotel in Puerto Rico unless he first hotel and restaurant business, and to do "any and all had joined the Union. 2 After the hearing had closed and in accordance with the procedure The General Counsel further alleges that Respondents s e t on t h e l a s t day o f t h e hearing, counsel for the General Counsel sub- El San Juan Hotel, El Conquistador Hotel, and The mitted to me a copy of an affidavit sworn to in the course of an earlier Dalace uotel, »„ * single ente_*rise, * i '-ite Sction . case, by the general manager of the El San Juan Hotel. Counsel for the Palace Hotel, as a Single enterprise, violated Section El San Juan Corporation objects to the affidavit being in evidence. That 8(a)l) and (5) by their untimely Withdrawal from the affidavit had at a previous point in the hearing been marked for identifi- collective bargaining that had been underway between cation as G.c. Exh. 112 and was offered in evidence then by the General the Respondent Association as their joint bargaining rep- Cou"sel t o insur that the record in this case would contain in its entirety the contents of par. 12 thereof. The General Counsel, however, had im- resentative and the Union respecting the musicians' unit mediately thereafter withdrawn G.C. Exh. 112 when it was obvious that involved herein and by thereafter refusing to bargain col- the hotel's general manager had just read the whole of that paragraph lectively with the Union. These three hotels, by their int o t h e record. I shall sustain the objection as apparently the affidavit is joint counsel, deny that they ever designated the Re- " o w b e i n g o f e r e d f o r a b r o t d e r purpose than was contemplated when spondent Association as their representative for the pur- the general manager was available s a witness. G.C. E x h . 11 2 is be i n g sponden Assocation s thei represntativ for te PUT- placed in the file containing the rejected exhibits. pose Of collective bargaining and thus aver that they Pursuant to the arrangements also established on the last day of the never withdrew in an untimely manner from any negoti- hearing, I shall take administrative notice of sees. 3141 and 3143 of Title ations. 1 3 o f t h e l a w s of P u e r t o R ic o a n d shall receive in evidence copies thereof Tli« rieneral <^^,,n.«l «ls c^ ^^ntrx thot ReD ^,^^A»» as G.C. Exh. 138. Further administrative notice will also be taken of sees. - T h e G e n e r a l Counselalso contends that Respondents 3119 and 3411 and copies thereof are received in evidence as Resp. Caribe Hilton Hotel, Condado Holiday Inn, and La Assoc. Exh. 60. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's positions throughout are the same as the General Concha Hotel-Condado Beach Hotel, in violation of Sec- Counsel's. tion 8(aXl) and (5) of the Act, executed contracts with The General Counsel alleges that Respondent, Puerto leaders of musicians employed respectively by them, Rico Hotel Association (herein called the Respondent which contracts purport to classify those musician em- Association) in the course of bargaining collectively with ployees as employees solely of the leaders who also are the Union vis-a-vis a renewal contract covering the unit purported therein to be "independent contractors." of musicians employed on a steady basis by, inter alia, The General Counsel separately asserts that one of the the Caribe Hilton Hotel, the El San Juan Hotel, the El Respondent hotels, the Caribe Hilton Hotel, also violated Conquistador Hotel, The Palace Hotel, the Condado Section 8(a)(l) and (3) of the Act by having, through its Holiday Inn and lastly the La Concha Hotel-Condado supervisor, Band Leader Jose Juan Pinero, discharged Beach Hotel, acted in derogation of the Union's repre- Pedro Chiclana, a musician in its employ, because of his sentative status and in violation of Section 8(a)(l) and (5) activities on behalf of the Union and in order to discour- of the Ac t by : age membership in the Union. In addition, Respondent (a) conditioning further collective bargaining at Ca r ib e H il t o n H o t e l i s alleged to h a v e violated Section various times, upon the Union's conceding that the 8(aX 1) of the Act by having, through Pinero, (a) threat- musicians in the unit are not hotel employees, e n e d musicians to induce them to refrain from supporting (b) suspending bargaining at another point be- t h e Union, (b) created the impression that their union ac- cause the Union had filed unfair labor practice tivities were under surveillance, and (c) engaged in other charges with the Board's regional office against the independent acts, as specified in the consolidated com- Respondent Association, plaint. Respondent Caribe Hilton Hotel avers that Chi- (c) changing unilaterally the wording of the re- dc a n a was never in its employ and seeks dismissal of cognitional clause of the renewal collective bargain- these allegations on that basis. Alternatively it contends ing contract after agreement thereon had been that Pinero's termination of Chiclana's employment was reached, and unrelated to any union considerations and that the ab- (d) encouraging its member hotels to use types of sence of proof of unlawful discrimination requires dis- form contracts when employing musicians so as to missal of the allegation involving Section 8(aXI) and (3). make it appear that the musicians are not employees It also seeks dismissal of the allegations of the independ- of the respective hotels. ent 8(aXI) violations on the ground that the record evi- dence does not support any findings of such violations. The Respondent Association and its member-hotels I have considered the entire record in these cases, 2 the contend that, even if it were found that the musicians are demeanor of the witnesses at the hearing and the briefs employees of the hotels, the 8(a)(l) and (5) allegations of filed by the parties. Based on these considerations, I the complaint against the Respondent Association should make the following: still be dismissed on the ground that: , . , . . . .~~~~~~~~~FINDINGS OF FACT (a) the unit of musicians is inappropriate as historically the group negotiations included all the 1. THE PARTIES leaders whom General Counsel would exclude as supervisors and as the leaders also actively partici- The Respondent Association was incorporated in 1950 pated in the Union's internal affairs. as a nonprofit association to promote the business inter- (b) the Union never represented an uncoerced ests and welfare of hotels in Puerto Rico, to promote majority of musicians because the Union operated a legislation on their behalf, to promote tourism, to pro- de facto closed shop whereby no musician could mulgate matters of interest to persons engaged in the perform in any hotel in Puerto Rico unless he first hotel and restaurant business, and to do "any and all had joined the Union. 2 After the hearing had closed and in accordance with the procedure The General Counsel further alleges that Respondents s e t on t h e l a s t day o f t h e hearing, counsel for the General Counsel sub- El San Juan Hotel, El Conquistador Hotel, and The mitted to me a copy of an affidavit sworn to in the course of an earlier Dalace uotel, »„ * single ente_*rise, * i '-ite Sction . case, by the general manager of the El San Juan Hotel. Counsel for the Palace Hotel, as a Single enterprise, violated Section El San Juan Corporation objects to the affidavit being in evidence. That 8(a)l) and (5) by their untimely Withdrawal from the affidavit had at a previous point in the hearing been marked for identifi- collective bargaining that had been underway between cation as G.c. Exh. 112 and was offered in evidence then by the General the Respondent Association as their joint bargaining rep- Cou"sel t o insur that the record in this case would contain in its entirety the contents of par. 12 thereof. The General Counsel, however, had im- resentative and the Union respecting the musicians' unit mediately thereafter withdrawn G.C. Exh. 112 when it was obvious that involved herein and by thereafter refusing to bargain col- the hotel's general manager had just read the whole of that paragraph lectively with the Union. These three hotels, by their int o t h e record. I shall sustain the objection as apparently the affidavit is joint counsel, deny that they ever designated the Re- " o w b e i n g o f e r e d f o r a b r o t d e r purpose than was contemplated when spondent Association as their representative for the pur- the general manager was available s a witness. G.C. E x h . 11 2 is be i n g sponden Assocation s thei represntativ for te PUT- placed in the file containing the rejected exhibits. pose Of collective bargaining and thus aver that they Pursuant to the arrangements also established on the last day of the never withdrew in an untimely manner from any negoti- hearing, I shall take administrative notice of sees. 3141 and 3143 of Title ations. 1 3 o f t h e l a w s of P u e r t o R ic o a n d shall receive in evidence copies thereof Tli« rieneral <^^,,n.«l «ls c^ ^^ntrx thot ReD ^,^^A»» as G.C. Exh. 138. Further administrative notice will also be taken of sees. - T h e G e n e r a l Counselalso contends that Respondents 3119 and 3411 and copies thereof are received in evidence as Resp. Caribe Hilton Hotel, Condado Holiday Inn, and La Assoc. Exh. 60. PUERTO RICO HOTEL ASSOCIATION 431 things ... to effect objects." There is no express state- 1n. THE ALLEGED UNLAWFUL REFUSALS TO BARGAIN ment in its articles of incorporation or its bylaws author- izing it to negotiate collective-bargaining agreements for A. The Class AA Hotels and Their Use of Musicians its member hotels.' Nevertheless, the General Counsel As of the date of the hearing the Respondent Associ- asserts that the Respondent Association has in fact repre- ation had about 28 member hotels of which about 9 had sented its member hotels in a multiemployer unit in the gambling casinos. Those 9 have been referred to in the course of its dealing with the Union over the years as record in this case at various times as Class AA hotels. the representative of the musician employees of these The General Counsel alleges that the Class AA hotels hotels. The merits of that contention and the determina- have bargained collectively through the Respondent As- tion as to whether the Respondent Association or any of sociation with the Union. Six of those Class AA hotels its member hotels is an employer as defined in Section are named in the caption above-the Caribe Hilton, El 2(2) of the Act vis-a-vis the musicians involved in these San Juan, El Conquistador, Palace, Condado Holiday cases must await a consideration of the relevant evi- Inn, and La Concha-Condado Beach Hotels. The other dence, set out below. The hotels involved in these cases three Class AA hotels, Dupont Plaza, Cerromar, and each have gross annual revenues exceeding $500,000, Dorado Beach, had been part of this proceeding but they principally cater to tourists or commercial guests, and have been severed as parties. purchase items each year which are valued at more than The responsibility for providing food, beverages, and $50,000 and which are delivered to the respective hotels entertainment in the nightclub rooms and lounges of the directly from outside Puerto Rico. Class AA hotels belongs to the food and beverage man- The San Juan Hotel Corporation is a corporation orga- ag of the respective hotels. Each such club room or lounge is directly supervised by a maitre d'. Some hotels nized under the laws of Puerto Rico. It owns and oper- serse a matre oe hot refer to the maitre d' as the room manager or the floor ates the El San Juan Hotel in Carolina, Puerto Rico, and manager. In a typical large nightclub room, the maitre d' the El Conquistador Hotel in Fajardo, Puerto Rico. The is assisted by head waiters who in turn oversee the work Puerto Rico Hotel Corporation is a corporation formed of the waiters and busboys in that room. The maitre d' under the laws of Puerto Rico; it owns and operates The also must insure that musical entertainment is provided in Palace Hotel in Carolina, Puerto Rico. Louis Puro is the his room as required by the contract between the hotel principal stockholder of both the San Juan Hotel Corpo- and the musical group engaged to perform there. The ration and the Puerto Rico Hotel Corporation. These maitre d' is responsible for maintaining the ambiance of corporations, through Puro, formulate and administer a the room and for insuring that the customers there are common labor relations policy and comprise a single promptly and properly served and entertained. In the business enterprise. typical clubroom, an orchestra directed by its leader and Hilton International Company is a Puerto Rico corpo- comprised of himself and nine other musicians plays soft ration which owns and operates the Caribe Hilton Hotel music as background during the dinner hour. After in San Juan, Puerto Rico, and also a complex known as dinner, a star performer-usually a well-known singer the La Concha Hotel-Condado Beach Hotel on Ashford from the mainland United States-appears to entertain. Avenue, San Juan. The 10-piece orchestra, with some modifications dis- Condado Holiday Inn is a corporation organized under cussed below, accompanies the performer using sheet the laws of Puerto Rico and it owns and operates a hotel music furnished by that performer and plays in the style under its corporate name on Ashford Avenue in San required by that performer or the performer's manager. Juan. After the performer has completed his show, the 10- The Union was founded in 1938 to advance the inter- piece orchestra plays dance music. The maitre d' does not select the music or the musicians and does not moni- ests of the professional musicians in Puerto Rico. It affili- not el ect t h e m uslc or h e manc Instead, the leader of ated with the International Federation of Musicians, t he r iwdividual performances. Instead, the leader of AFL-CIO, in 1951. Respondents challenge its status as a the director, is the one who directs the musicians e- the director, is the one who directs the musicians, de- labor organization within the definition of Section 2(5) of cides the tempo of the music, and the instruments to be the Act based on their view that the musicians are not played. The maitre d can ask the leader to lower the employees of the hotels and also based on the alleged im- volume of the music if, in the judgment of the maitre d', proper involvement into the Union's internal affairs by the orchestra is playing too loud and such requests are the leaders. That issue is discussed and resolved, infra routinely honored. 4 The matter as to volume surfaces normally during the dinner hour when sometimes pa- trons have difficulty conversing when the background music is played too loud. The maitre d' can stop the 'A nonprofit organization known as the Metropolitan Hotel Associ- music in order to speed up the service of food and can ation of Puerto Rico. Inc., was formed in 1960 to foster the best interests also send the musicians home before normal quitting time of its member hotels (which include the Caribe Hilton, Condado Holiday in those situations where virtually all the patrons have Inn, and apparently all the other large hotels in Puerto Rico) and "to left the room. There are also occasions when the start of serve as collective bargaining agent" for its members "with all local unions and groups of employees." The Metropolitan Hotel Association has negotiated contracts for its member hotels involving classifications, A leader testified that he always chooses to honor such requests. He e.g., culinary workers, as to which there is no dispute concerning em- had been asked on cross-examination whether he was free to honor or ployee status. reject such requests. PUERTO RICO HOTEL ASSOCIATION 431 things ... to effect objects." There is no express state- II. THE ALLEGED UNLAWFUL REFUSALS TO BARGAIN ment in its articles of incorporation or its bylaws author- izing it to negotiate collective-bargaining agreements for A. The Class A A H ot els an d T he ir U se of Musicians its member hotels.' Nevertheless, the General Counsel As of the date of the hearing the Respondent Associ- asserts that the Respondent Association has in fact repre- ation had about 28 member hotels of which about 9 had sented its member hotels in a multiemployer unit in the gambling casinos. Those 9 have been referred to in the course of its dealing with the Union over the years as record in this case at various times as Class AA hotels. the representative of the musician employees of these The General Counsel alleges that the Class AA hotels hotels. The merits of that contention and the determina- have bargained collectively through the Respondent As- tion as to whether the Respondent Association or any of sociation with the Union. Six of those Class AA hotels its member hotels is an employer as defined in Section are named in the caption above-the Caribe Hilton, El 2(2) of the Act vis-a-vis the musicians involved in these San Juan, El Conquistador, Palace, Condado Holiday cases must await a consideration of the relevant evi- Inn, and La Concha-Condado Beach Hotels. The other dence, set out below. The hotels involved in these cases three Class AA hotels, Dupont Plaza, Cerromar, and each have gross annual revenues exceeding $500,000, Dorado Beach, had been part of this proceeding but they principally cater to tourists or commercial guests, and have been severed as parties. purchase items each year which are valued at more than T h e responsibility for providing food, beverages, and $50,000 and which are delivered to the respective hotels entertainment in the nightclub rooms and lounges of the directly from outside Puerto Rico. Cl ass AA hotels belongs to the food and beverage man- The San Juan Hotel Corporation is a corporation orga- a o f t h e respective hotels. Each such club room or nized under the laws of Puerto Rico. It owns and oper- logi directly supervised by a maitre W. Some hotels . .1. c c. i T „ i * *' r r>^ r«. - refer to the maitre d' as the room manager or the floor ates the El San Juan Hotel in Carolina, Puerto Rico, and r t t m d a t r m manager. In a typical large nightclub room, the maitre d' the El Conquistador Hotel in Fajardo, Puerto Rico. The is assisted by head waiters who in turn oversee the work Puerto Rico Hotel Corporation is a corporation formed of the waiters and busboys in that room. The maitre d' under the laws of Puerto Rico; it owns and operates The also must insure that musical entertainment is provided in Palace Hotel in Carolina, Puerto Rico. Louis Puro is the his room as required by the contract between the hotel principal stockholder of both the San Juan Hotel Corpo- and the musical group engaged to perform there. The ration and the Puerto Rico Hotel Corporation. These maitre d' is responsible for maintaining the ambiance of corporations, through Puro, formulate and administer a the room and for insuring that the customers there are common labor relations policy and comprise a single promptly and properly served and entertained. In the business enterprise. typical clubroom, an orchestra directed by its leader and Hilton International Company is a Puerto Rico corpo- comprised of himself and nine other musicians plays soft ration which owns and operates the Caribe Hilton Hotel music as background during the dinner hour. After in San Juan, Puerto Rico, and also a complex known as dinner, a star performer-usually a well-known singer the La Concha Hotel-Condado Beach Hotel on Ashford from the mainland United States-appears to entertain. Avenue, San Juan. The 10-piece orchestra, with some modifications dis- Condado Holiday Inn is a corporation organized under cussed below, accompanies the performer using sheet the laws of Puerto Rico and it owns and operates a hotel m usic furnished by that performer and plays in the style under its corporate name on Ashford Avenue in San required by that performer or the performer's manager. Juan. After the performer has completed his show, the 10- The Union was founded in 1938 to advance the inter- piece orchestra plays dance music. The maitre d' does ests of the professional musicians in Puerto Rico. It affili- n o t sel ec t t h e m usic o r t h e muscians and does not moni- ated with the International Federation of Musicians, to r t h eir individual performances. Instead, the leader of AFL-CIO, in 1951. Respondents challenge its status as a th e group, w h o is als o a t times t erm ed t h e conductor or ,FGCIO .n ... .. *espondents . hallenge -ts .tatus . °- ;he director, is the one who directs the musicians, de- labor organization within the definition of Section 2(5) of cides the tempo of the music, and the instruments to be the Act based on their view that the musicians are not playe. The maitre d' can ask the leader to lower the employees of the hotels and also based on the alleged im- volume of the music if, in the judgment of the maitre d', proper involvement into the Union's internal affairs by the orchestra is playing too loud and such requests are the leaders. That issue is discussed and resolved, infra routinely honored.' The matter as to volume surfaces normally during the dinner hour when sometimes pa- trons have difficulty conversing when the background music is played too loud. The maitre d' can stop the 'A nonprofit organization known as the Metropolitan Hotel Associ- music in order to Speed Up the Service of food and can ation of Puerto Rico, Inc., was formed in 1960 to foster the best interests also send the musicians home before normal quitting time of its member hotels (which include the Caribe Hilton, Condado Holiday in those situations where virtually all the patrons have Inn, and apparently all the other large hotels in Puerto Rico) and "to left th e r o o m . T h ere ar e als o occasions w h en the start of serve as collective bargaining agent" for its members "with all local unions and groups of employees." The Metropolitan Hotel Association has negotiated contracts for its member hotels involving classifications, A leader testified that he always chooses to honor such requests. He e.g., culinary workers, as to which there is no dispute concerning em- had been asked on cross-examination whether he was free to honor or ployee status. reject such requests. PUERTO RICO HOTEL ASSOCIATION 431 things ... to effect objects." There is no express state- II. THE ALLEGED UNLAWFUL REFUSALS TO BARGAIN ment in its articles of incorporation or its bylaws author- izing it to negotiate collective-bargaining agreements for A. The Class A A H ot els an d T he ir U se of Musicians its member hotels.' Nevertheless, the General Counsel As of the date of the hearing the Respondent Associ- asserts that the Respondent Association has in fact repre- ation had about 28 member hotels of which about 9 had sented its member hotels in a multiemployer unit in the gambling casinos. Those 9 have been referred to in the course of its dealing with the Union over the years as record in this case at various times as Class AA hotels. the representative of the musician employees of these The General Counsel alleges that the Class AA hotels hotels. The merits of that contention and the determina- have bargained collectively through the Respondent As- tion as to whether the Respondent Association or any of sociation with the Union. Six of those Class AA hotels its member hotels is an employer as defined in Section are named in the caption above-the Caribe Hilton, El 2(2) of the Act vis-a-vis the musicians involved in these San Juan, El Conquistador, Palace, Condado Holiday cases must await a consideration of the relevant evi- Inn, and La Concha-Condado Beach Hotels. The other dence, set out below. The hotels involved in these cases three Class AA hotels, Dupont Plaza, Cerromar, and each have gross annual revenues exceeding $500,000, Dorado Beach, had been part of this proceeding but they principally cater to tourists or commercial guests, and have been severed as parties. purchase items each year which are valued at more than T h e responsibility for providing food, beverages, and $50,000 and which are delivered to the respective hotels entertainment in the nightclub rooms and lounges of the directly from outside Puerto Rico. Cl ass AA hotels belongs to the food and beverage man- The San Juan Hotel Corporation is a corporation orga- a o f t h e respective hotels. Each such club room or nized under the laws of Puerto Rico. It owns and oper- logi directly supervised by a maitre W. Some hotels . .1. c c. i T „ i * *' r r>^ r«. - refer to the maitre d' as the room manager or the floor ates the El San Juan Hotel in Carolina, Puerto Rico, and r t t m d a t r m manager. In a typical large nightclub room, the maitre d' the El Conquistador Hotel in Fajardo, Puerto Rico. The is assisted by head waiters who in turn oversee the work Puerto Rico Hotel Corporation is a corporation formed of the waiters and busboys in that room. The maitre d' under the laws of Puerto Rico; it owns and operates The also must insure that musical entertainment is provided in Palace Hotel in Carolina, Puerto Rico. Louis Puro is the his room as required by the contract between the hotel principal stockholder of both the San Juan Hotel Corpo- and the musical group engaged to perform there. The ration and the Puerto Rico Hotel Corporation. These maitre d' is responsible for maintaining the ambiance of corporations, through Puro, formulate and administer a the room and for insuring that the customers there are common labor relations policy and comprise a single promptly and properly served and entertained. In the business enterprise. typical clubroom, an orchestra directed by its leader and Hilton International Company is a Puerto Rico corpo- comprised of himself and nine other musicians plays soft ration which owns and operates the Caribe Hilton Hotel music as background during the dinner hour. After in San Juan, Puerto Rico, and also a complex known as dinner, a star performer-usually a well-known singer the La Concha Hotel-Condado Beach Hotel on Ashford from the mainland United States-appears to entertain. Avenue, San Juan. The 10-piece orchestra, with some modifications dis- Condado Holiday Inn is a corporation organized under cussed below, accompanies the performer using sheet the laws of Puerto Rico and it owns and operates a hotel music furnished by that performer and plays in the style under its corporate name on Ashford Avenue in San required by that performer or the performer's manager. Juan. After the performer has completed his show, the 10- The Union was founded in 1938 to advance the inter- piece orchestra plays dance music. The maitre d' does ests of the professional musicians in Puerto Rico. It affili- n o t sel ec t t h e m usic o r t h e musicians and does not moni- ated with the International Federation of Musicians, to r t h eir individual performances. Instead, the leader of AFL-CIO, in 1951. Respondents challenge its status as a th e group, w h o is als o a t times t erm ed t h e conductor or ,FGCIO .n ... .. *espondents . hallenge -ts .tatus . °- ;he director, is the one who directs the musicians, de- labor organization within the definition of Section 2(5) of cides the tempo of the music, and the instruments to be the Act based on their view that the musicians are not playe. The maitre d' can ask the leader to lower the employees of the hotels and also based on the alleged im- volume of the music if, in the judgment of the maitre d', proper involvement into the Union's internal affairs by the orchestra is playing too loud and such requests are the leaders. That issue is discussed and resolved, infra routinely honored.' The matter as to volume surfaces normally during the dinner hour when sometimes pa- trons have difficulty conversing when the background music is played too loud. The maitre d' can stop the 'A nonprofit organization known as the Metropolitan Hotel Associ- music in order to Speed Up the Service of food and can ation of Puerto Rico, Inc., was formed in 1960 to foster the best interests also send the musicians home before normal quitting time of its member hotels (which include the Caribe Hilton, Condado Holiday in those situations where virtually all the patrons have Inn, and apparently all the other large hotels in Puerto Rico) and "to left th e r o o m . T h ere ar e als o occasions w h en the start of serve as collective bargaining agent" for its members "with all local unions and groups of employees." The Metropolitan Hotel Association has negotiated contracts for its member hotels involving classifications, A leader testified that he always chooses to honor such requests. He e.g., culinary workers, as to which there is no dispute concerning em- had been asked on cross-examination whether he was free to honor or ployee status. reject such requests. PUERTO RICO HOTEL ASSOCIATION 431 things ... to effect objects." There is no express state- II. THE ALLEGED UNLAWFUL REFUSALS TO BARGAIN ment in its articles of incorporation or its bylaws author- izing it to negotiate collective-bargaining agreements for A. The Class A A H ot els an d T he ir U se of Musicians its member hotels.' Nevertheless, the General Counsel As of the date of the hearing the Respondent Associ- asserts that the Respondent Association has in fact repre- ation had about 28 member hotels of which about 9 had sented its member hotels in a multiemployer unit in the gambling casinos. Those 9 have been referred to in the course of its dealing with the Union over the years as record in this case at various times as Class AA hotels. the representative of the musician employees of these The General Counsel alleges that the Class AA hotels hotels. The merits of that contention and the determina- have bargained collectively through the Respondent As- tion as to whether the Respondent Association or any of sociation with the Union. Six of those Class AA hotels its member hotels is an employer as defined in Section are named in the caption above-the Caribe Hilton, El 2(2) of the Act vis-a-vis the musicians involved in these San Juan, El Conquistador, Palace, Condado Holiday cases must await a consideration of the relevant evi- Inn, and La Concha-Condado Beach Hotels. The other dence, set out below. The hotels involved in these cases three Class AA hotels, Dupont Plaza, Cerromar, and each have gross annual revenues exceeding $500,000, Dorado Beach, had been part of this proceeding but they principally cater to tourists or commercial guests, and have been severed as parties. purchase items each year which are valued at more than T h e responsibility for providing food, beverages, and $50,000 and which are delivered to the respective hotels entertainment in the nightclub rooms and lounges of the directly from outside Puerto Rico. Cl ass AA hotels belongs to the food and beverage man- The San Juan Hotel Corporation is a corporation orga- agr o f t h e respective hotels. Each such club room or nized under the laws of Puerto Rico. It owns and oper- logi directly supervised by a maitre W. Some hotels . .1. c c. i T „ i * *' r r>^ r«. - refer to the maitre d' as the room manager or the floor ates the El San Juan Hotel in Carolina, Puerto Rico, and r t t m d a t r m manager. In a typical large nightclub room, the maitre d' the El Conquistador Hotel in Fajardo, Puerto Rico. The is assisted by head waiters who in turn oversee the work Puerto Rico Hotel Corporation is a corporation formed of the waiters and busboys in that room. The maitre d' under the laws of Puerto Rico; it owns and operates The also must insure that musical entertainment is provided in Palace Hotel in Carolina, Puerto Rico. Louis Puro is the his room as required by the contract between the hotel principal stockholder of both the San Juan Hotel Corpo- and the musical group engaged to perform there. The ration and the Puerto Rico Hotel Corporation. These maitre d' is responsible for maintaining the ambiance of corporations, through Puro, formulate and administer a the room and for insuring that the customers there are common labor relations policy and comprise a single promptly and properly served and entertained. In the business enterprise. typical clubroom, an orchestra directed by its leader and Hilton International Company is a Puerto Rico corpo- comprised of himself and nine other musicians plays soft ration which owns and operates the Caribe Hilton Hotel music as background during the dinner hour. After in San Juan, Puerto Rico, and also a complex known as dinner, a star performer-usually a well-known singer the La Concha Hotel-Condado Beach Hotel on Ashford from the mainland United States-appears to entertain. Avenue, San Juan. The 10-piece orchestra, with some modifications dis- Condado Holiday Inn is a corporation organized under cussed below, accompanies the performer using sheet the laws of Puerto Rico and it owns and operates a hotel music furnished by that performer and plays in the style under its corporate name on Ashford Avenue in San required by that performer or the performer's manager. Juan. After the performer has completed his show, the 10- The Union was founded in 1938 to advance the inter- piece orchestra plays dance music. The maitre d' does ests of the professional musicians in Puerto Rico. It affili- n o t sel ec t t h e m usic o r t h e musicians and does not moni- ated with the International Federation of Musicians, to r t h eir individual performances. Instead, the leader of AFL-CIO, in 1951. Respondents challenge its status as a th e group, w h o is als o a t times t erm ed t h e conductor or ,FGCIO .n ... .. *espondents . hallenge -ts .tatus . °- ;he director, is the one who directs the musicians, de- labor organization within the definition of Section 2(5) of cides the tempo of the music, and the instruments to be the Act based on their view that the musicians are not playe. The maitre d' can ask the leader to lower the employees of the hotels and also based on the alleged im- volume of the music if, in the judgment of the maitre d', proper involvement into the Union's internal affairs by the orchestra is playing too loud and such requests are the leaders. That issue is discussed and resolved, infra routinely honored.' The matter as to volume surfaces normally during the dinner hour when sometimes pa- trons have difficulty conversing when the background music is played too loud. The maitre d' can stop the 'A nonprofit organization known as the Metropolitan Hotel Associ- music in order to Speed Up the Service of food and can ation of Puerto Rico, Inc., was formed in 1960 to foster the best interests also send the musicians home before normal quitting time of its member hotels (which include the Caribe Hilton, Condado Holiday in those situations where virtually all the patrons have Inn, and apparently all the other large hotels in Puerto Rico) and "to left th e room. There are also occasions when the start of serve as collective bargaining agent" for its members "with all local unions and groups of employees." The Metropolitan Hotel Association has negotiated contracts for its member hotels involving classifications, A leader testified that he always chooses to honor such requests. He e.g., culinary workers, as to which there is no dispute concerning em- had been asked on cross-examination whether he was free to honor or ployee status. reject such requests. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the show by the star performer may be delayed in order the booking agents' commissions, usually 10 percent, are to accommodate a late arriving group of patrons. This added on to the total compensation to be paid to the mu- could occur when a cruise ship is late in arriving and a sicians; those commissions are paid by the hotel, not the large party on that ship is expected in the room. In such musical groups. an instance, the food and beverage manager will notify More recently, certain hotels have been using "person- the leader that the opening of the show is being delayed al services" contracts or contracts different in form from and the orchestra continues to play background music those that had been used in past. The General Counsel until the show is ready to begin. Musicians are compen- alleges that the use of those "personal services contracts" sated in accordance with the contract between the Re- or variations thereof is unlawful insofar as they purport spondent Association and the Union for any overtime to identify the leader as an independent contractor or hours they work. Their normal workweek consists of a assert that the musicians are not employees of the hotels. 6-day, 28-hour week. The hotels now using those new form contracts are the The Class AA hotels also have cocktail lounges each Caribe Hilton, the Condado Holiday Inn, the El San under the direction of a maitre d'. There, groups of two Juan, El Conquistador, and The Palace. or three or sometimes more musicians play. Some of the Class AA hotels also engage musicians to play at a pool- C. Administrative and Other Policies of the Hotels side lounge during the daytime. The contracts between Towards Musicians the Union and the Respondent Association require Class AA hotels to have a minimum number of musicians as The contracts between the Respondent Association specified therein; e.g., their 1975-78 agreement provided and the Union, discussed in more detail infra, have re- that the Caribe Hilton and five other hotels of compara- quired the Class AA hotels to deduct from the gross ble size shall each "employ a minimum of (18) eighteen weekly earnings of each musician performing at the re- musicians during the entire year." This "guaranteed spective hotels social security taxes, unemployment taxes, group" included leaders. workers' compensation contributions, and also income taxes for Puerto Rico. Musicians have routinely filed un- B. The Contractual Arrangements Between the Hotels employment claims when out of work in which they and the Leaders have named the Class AA hotels as their employers since Up until the end of the strike on April 30, 1979, as dis- the hotels have made the employer contributions on their cussed infra, all of the local musicians in Puerto Rico, in- behalf to the Commonwealth of Puerto Rico cluding leaders, were members of the Union. All other The contracts between the Respondent Association musicians are generally referred to as "travelers" and, and the Union also require the hotels to provide free except for the five members of the Pat Mills group dis- meals to the musicians. The musicians use ID cards fur- cussed below, they have been members of sister AFM nished to them by the hotels to gain entrance to the em- locals. ployees' cafeterias and for other purposes; e.g., use of The hotels in Puerto Rico routinely used a variation of employee parking facilities. the printed AFM Form B contract which has blanks to A memorandum of understanding signed by repre- be filled in. In practice in Puerto Rico, those forms have sentatives of the Respondent Association and the Union not been filled out meticulously but usually with just on April 30, 1979, states that the hotels provide adminis- enough data to satisfy the signatories; e.g., the group's trative services to assist the band leaders as the leaders name, the total amount of their weekly compensation, do not have the means or the personnel to undertake the the date the engagement begins, and sometimes the room task of deducting and transmitting, inter alia, social secu- where the group is to play. rity taxes. As noted herein, some of the hotels have in The total weekly compensation has been referred to at 1979 and 1980 attempted to have the leaders make the times in the record in this case as "lump sum." That sum payments of workers' compensation premiums directly to is not the total amount of the contract as the term of the the Commonwealth for their respective groups. contract is for all practical purposes indefinite. In addi- The hotels, as required by the provisions of the con- tion, the weekly total does not include compensation for tracts between the Respondent Association and the overtime hours worked by the musicians each week or Union and by virtue of the laws of the Commonwealth other extra compensation. The total weekly compensa- of Puerto Rico, are required to furnish the musicians tion in most cases is calculated according to the formula with paid holidays, paid vacations, and sick leave pay. set out in the contract between the Respondent Associ- The hotels have extensive personnel procedures appli- ation and the Union. This requires that each musician cable to individuals whose employment status is not in shall be paid a minimum salary for the normal 6-day dispute; e.g., maids, porters, and maintenance employees. workweek. That minimum is termed "scale." The leader These employees fill out job application forms, undergo of each group receives twice the minimum salary or orientation training, are issued employee manuals and "double scale." Assuming "scale" is $200 and a group is copies of rules and regulations governing their employ, comprised of a quartet, the total weekly compensation punch timecards, and follow detailed grievance proce- excluding overtime and other extras would be $1,000 dures. All the foregoing procedures are not generally ap- dollars. The leader of the quartet gets double the scale or plicable to musicians performing at the hotels. Further, a $400 and each of the three musicians, called sidemen, re- musician who is unable to perform due to sickness is ex- ceive $200. On occasion the hotels and the musicians will pected to furnish a competent replacement. In that use the services of a booking agent. In those situations, regard, the Union's president testified that he has occa- 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the show by the star performer may be delayed in order the booking agents' commissions, usually 10 percent, are to accommodate a late arriving group of patrons. This added on to the total compensation to be paid to the mu- could occur when a cruise ship is late in arriving and a sicians; those commissions are paid by the hotel, not the large party on that ship is expected in the room. In such musical groups. an instance, the food and beverage manager will notify More recently, certain hotels have been using "person- the leader that the opening of the show is being delayed al services" contracts or contracts different in form from and the orchestra continues to play background music those that had been used in past. The General Counsel until the show is ready to begin. Musicians are compen- alleges that the use of those "personal services contracts" sated in accordance with the contract between the Re- or variations thereof is unlawful insofar as they purport spondent Association and the Union for any overtime to identify the leader as an independent contractor or hours they work. Their normal workweek consists of a assert that the musicians are not employees of the hotels. 6-day, 28-hour week. The hotels now using those new form contracts are the The Class AA hotels also have cocktail lounges each Caribe Hilton, the Condado Holiday Inn, the El San under the direction of a maitre d'. There, groups of two Juan, El Conquistador, and The Palace. or three or sometimes more musicians play. Some of the Class AA hotels also engage musicians to play at a pool- C. Administrative and Other Policies of the Hotels side lounge during the daytime. The contracts between Towards Musicians the Union and the Respondent Association require Class AA hotels to have a minimum number of musicians as The contracts between the Respondent Association specified therein; e.g., their 1975-78 agreement provided and the Union, discussed in more detail infra, have re- that the Caribe Hilton and five other hotels of compara- quired the Class AA hotels to deduct from the gross ble size shall each "employ a minimum of (18) eighteen weekly earnings of each musician performing at the re- musicians during the entire year." This "guaranteed spective hotels social security taxes, unemployment taxes, group" included leaders. workers' compensation contributions, and also income taxes for Puerto Rico. Musicians have routinely filed un- B. The Contractual Arrangements Between the Hotels employment claims when out of work in which they and the Leaders have named the Class AA hotels as their employers since Up until the end of the strike on April 30, 1979, as dis- t h e h o t e ls h av e m ad e t h e employer contributions on their cussed infra, all of the local musicians in Puerto Rico, in- b eh al f t o t h e Commonwealth of Puerto Rico. cluding leaders, were members of the Union. All other The contracts between the Respondent Association musicians are generally referred to as "travelers" and, and the Union also require the hotels to provide free except for the five members of the Pat Mills group dis- m e als t o th e musicians. The musicians use ID cards fur- cussed below, they have been members of sister AFM nished to them by the hotels to gain entrance to the em- locals. ployees' cafeterias and for other purposes; e.g., use of The hotels in Puerto Rico routinely used a variation of employee parking facilities. the printed AFM Form B contract which has blanks to A memorandum of understanding signed by repre- be filled in. In practice in Puerto Rico, those forms have sentatives of the Respondent Association and the Union not been filled out meticulously but usually with just on April 30, 1979, states that the hotels provide adminis- enough data to satisfy the signatories; e.g., the group's trative services to assist the band leaders as the leaders name, the total amount of their weekly compensation, do not have the means or the personnel to undertake the the date the engagement begins, and sometimes the room task of deducting and transmitting, inter alia, social secu- where the group is to play. rity taxes. As noted herein, some of the hotels have in The total weekly compensation has been referred to at 1979 and 1980 attempted to have the leaders make the times in the record in this case as "lump sum." That sum payments of workers' compensation premiums directly to is not the total amount of the contract as the term of the the Commonwealth for their respective groups. contract is for all practical purposes indefinite. In addi- The hotels, as required by the provisions of the con- tion, the weekly total does not include compensation for tracts between the Respondent Association and the overtime hours worked by the musicians each week or Union and by virtue of the laws of the Commonwealth other extra compensation. The total weekly compensa- of Puerto Rico, are required to furnish the musicians tion in most cases is calculated according to the formula with paid holidays, paid vacations, and sick leave pay. set out in the contract between the Respondent Associ- The hotels have extensive personnel procedures appli- ation and the Union. This requires that each musician cable to individuals whose employment status is not in shall be paid a minimum salary for the normal 6-day dispute; e.g., maids, porters, and maintenance employees. workweek. That minimum is termed "scale." The leader These employees fill out job application forms, undergo of each group receives twice the minimum salary or orientation training, are issued employee manuals and "double scale." Assuming "scale" is $200 and a group is copies of rules and regulations governing their employ, comprised of a quartet, the total weekly compensation punch timecards, and follow detailed grievance proce- excluding overtime and other extras would be $1,000 dures. All the foregoing procedures are not generally ap- dollars. The leader of the quartet gets double the scale or plicable to musicians performing at the hotels. Further, a $400 and each of the three musicians, called sidemen, re- musician who is unable to perform due to sickness is ex- ceive $200. On occasion the hotels and the musicians will pected to furnish a competent replacement. In that use the services of a booking agent. In those situations, regard, the Union's president testified that he has occa- 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the show by the star performer may be delayed in order the booking agents' commissions, usually 10 percent, are to accommodate a late arriving group of patrons. This added on to the total compensation to be paid to the mu- could occur when a cruise ship is late in arriving and a sicians; those commissions are paid by the hotel, not the large party on that ship is expected in the room. In such musical groups. an instance, the food and beverage manager will notify More recently, certain hotels have been using "person- the leader that the opening of the show is being delayed al services" contracts or contracts different in form from and the orchestra continues to play background music those that had been used in past. The General Counsel until the show is ready to begin. Musicians are compen- alleges that the use of those "personal services contracts" sated in accordance with the contract between the Re- or variations thereof is unlawful insofar as they purport spondent Association and the Union for any overtime to identify the leader as an independent contractor or hours they work. Their normal workweek consists of a assert that the musicians are not employees of the hotels. 6-day, 28-hour week. The hotels now using those new form contracts are the The Class AA hotels also have cocktail lounges each Caribe Hilton, the Condado Holiday Inn, the El San under the direction of a maitre d'. There, groups of two Juan, El Conquistador, and The Palace. or three or sometimes more musicians play. Some of the Class AA hotels also engage musicians to play at a pool- C. Administrative and Other Policies of the Hotels side lounge during the daytime. The contracts between Towards Musicians the Union and the Respondent Association require Class AA hotels to have a minimum number of musicians as The contracts between the Respondent Association specified therein; e.g., their 1975-78 agreement provided and the Union, discussed in more detail infra, have re- that the Caribe Hilton and five other hotels of compara- quired the Class AA hotels to deduct from the gross ble size shall each "employ a minimum of (18) eighteen weekly earnings of each musician performing at the re- musicians during the entire year." This "guaranteed spective hotels social security taxes, unemployment taxes, group" included leaders. workers' compensation contributions, and also income taxes for Puerto Rico. Musicians have routinely filed un- B. The Contractual Arrangements Between the Hotels employment claims when out of work in which they and the Leaders have named the Class AA hotels as their employers since Up until the end of the strike on April 30, 1979, as dis- t h e h o t e ls h av e m ad e t h e employer contributions on their cussed infra, all of the local musicians in Puerto Rico, in- b eh al f t o t h e Commonwealth of Puerto Rico. cluding leaders, were members of the Union. All other The contracts between the Respondent Association musicians are generally referred to as "travelers" and, a nd t h e U n io n al so require the hotels to provide free except for the five members of the Pat Mills group dis- m e als t o th e musicians. The musicians use ID cards fur- cussed below, they have been members of sister AFM nished to them by the hotels to gain entrance to the em- locals. ployees' cafeterias and for other purposes; e.g., use of The hotels in Puerto Rico routinely used a variation of employee parking facilities. the printed AFM Form B contract which has blanks to A memorandum of understanding signed by repre- be filled in. In practice in Puerto Rico, those forms have sentatives of the Respondent Association and the Union not been filled out meticulously but usually with just on April 30, 1979, states that the hotels provide adminis- enough data to satisfy the signatories; e.g., the group's trative services to assist the band leaders as the leaders name, the total amount of their weekly compensation, do not have the means or the personnel to undertake the the date the engagement begins, and sometimes the room task of deducting and transmitting, inter alia, social secu- where the group is to play. rity taxes. As noted herein, some of the hotels have in The total weekly compensation has been referred to at 1979 and 1980 attempted to have the leaders make the times in the record in this case as "lump sum." That sum payments of workers' compensation premiums directly to is not the total amount of the contract as the term of the the Commonwealth for their respective groups. contract is for all practical purposes indefinite. In addi- The hotels, as required by the provisions of the con- tion, the weekly total does not include compensation for tracts between the Respondent Association and the overtime hours worked by the musicians each week or Union and by virtue of the laws of the Commonwealth other extra compensation. The total weekly compensa- of Puerto Rico, are required to furnish the musicians tion in most cases is calculated according to the formula with paid holidays, paid vacations, and sick leave pay. set out in the contract between the Respondent Associ- The hotels have extensive personnel procedures appli- ation and the Union. This requires that each musician cable to individuals whose employment status is not in shall be paid a minimum salary for the normal 6-day dispute; e.g., maids, porters, and maintenance employees. workweek. That minimum is termed "scale." The leader These employees fill out job application forms, undergo of each group receives twice the minimum salary or orientation training, are issued employee manuals and "double scale." Assuming "scale" is $200 and a group is copies of rules and regulations governing their employ, comprised of a quartet, the total weekly compensation punch timecards, and follow detailed grievance proce- excluding overtime and other extras would be $1,000 dures. All the foregoing procedures are not generally ap- dollars. The leader of the quartet gets double the scale or plicable to musicians performing at the hotels. Further, a $400 and each of the three musicians, called sidemen, re- musician who is unable to perform due to sickness is ex- ceive $200. On occasion the hotels and the musicians will pected to furnish a competent replacement. In that use the services of a booking agent. In those situations, regard, the Union's president testified that he has occa- 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the show by the star performer may be delayed in order the booking agents' commissions, usually 10 percent, are to accommodate a late arriving group of patrons. This added on to the total compensation to be paid to the mu- could occur when a cruise ship is late in arriving and a sicians; those commissions are paid by the hotel, not the large party on that ship is expected in the room. In such musical groups. an instance, the food and beverage manager will notify More recently, certain hotels have been using "person- the leader that the opening of the show is being delayed al services" contracts or contracts different in form from and the orchestra continues to play background music those that had been used in past. The General Counsel until the show is ready to begin. Musicians are compen- alleges that the use of those "personal services contracts" sated in accordance with the contract between the Re- or variations thereof is unlawful insofar as they purport spondent Association and the Union for any overtime to identify the leader as an independent contractor or hours they work. Their normal workweek consists of a assert that the musicians are not employees of the hotels. 6-day, 28-hour week. The hotels now using those new form contracts are the The Class AA hotels also have cocktail lounges each Caribe Hilton, the Condado Holiday Inn, the El San under the direction of a maitre d'. There, groups of two Juan, El Conquistador, and The Palace. or three or sometimes more musicians play. Some of the Class AA hotels also engage musicians to play at a pool- C. Administrative and Other Policies of the Hotels side lounge during the daytime. The contracts between Towards Musicians the Union and the Respondent Association require Class AA hotels to have a minimum number of musicians as The contracts between the Respondent Association specified therein; e.g., their 1975-78 agreement provided and the Union, discussed in more detail infra, have re- that the Caribe Hilton and five other hotels of compara- quired the Class AA hotels to deduct from the gross ble size shall each "employ a minimum of (18) eighteen weekly earnings of each musician performing at the re- musicians during the entire year." This "guaranteed spective hotels social security taxes, unemployment taxes, group" included leaders. workers' compensation contributions, and also income taxes for Puerto Rico. Musicians have routinely filed un- B. The Contractual Arrangements Between the Hotels employment claims when out of work in which they and the Leaders have named the Class AA hotels as their employers since Up until the end of the strike on April 30, 1979, as dis- t h e h o t e ls h av e m ad e t h e employer contributions on their cussed infra, all of the local musicians in Puerto Rico, in- b eh al f t o t h e Commonwealth of Puerto Rico. cluding leaders, were members of the Union. All other The contracts between the Respondent Association musicians are generally referred to as "travelers" and, a nd t h e U n io n al so require the hotels to provide free except for the five members of the Pat Mills group dis- m e als t o th e musicians. The musicians use ID cards fur- cussed below, they have been members of sister AFM nished to them by the hotels to gain entrance to the em- locals. ployees' cafeterias and for other purposes; e.g., use of The hotels in Puerto Rico routinely used a variation of employee parking facilities. the printed AFM Form B contract which has blanks to A memorandum of understanding signed by repre- be filled in. In practice in Puerto Rico, those forms have sentatives of the Respondent Association and the Union not been filled out meticulously but usually with just on April 30, 1979, states that the hotels provide adminis- enough data to satisfy the signatories; e.g., the group's trative services to assist the band leaders as the leaders name, the total amount of their weekly compensation, do not have the means or the personnel to undertake the the date the engagement begins, and sometimes the room task of deducting and transmitting, inter alia, social secu- where the group is to play. rity taxes. As noted herein, some of the hotels have in The total weekly compensation has been referred to at 1979 and 1980 attempted to have the leaders make the times in the record in this case as "lump sum." That sum payments of workers' compensation premiums directly to is not the total amount of the contract as the term of the the Commonwealth for their respective groups. contract is for all practical purposes indefinite. In addi- The hotels, as required by the provisions of the con- tion, the weekly total does not include compensation for tracts between the Respondent Association and the overtime hours worked by the musicians each week or Union and by virtue of the laws of the Commonwealth other extra compensation. The total weekly compensa- of Puerto Rico, are required to furnish the musicians tion in most cases is calculated according to the formula with paid holidays, paid vacations, and sick leave pay. set out in the contract between the Respondent Associ- The hotels have extensive personnel procedures appli- ation and the Union. This requires that each musician cable to individuals whose employment status is not in shall be paid a minimum salary for the normal 6-day dispute; e.g., maids, porters, and maintenance employees. workweek. That minimum is termed "scale." The leader These employees fill out job application forms, undergo of each group receives twice the minimum salary or orientation training, are issued employee manuals and "double scale." Assuming "scale" is $200 and a group is copies of rules and regulations governing their employ, comprised of a quartet, the total weekly compensation punch timecards, and follow detailed grievance proce- excluding overtime and other extras would be $1,000 dures. All the foregoing procedures are not generally ap- dollars. The leader of the quartet gets double the scale or plicable to musicians performing at the hotels. Further, a $400 and each of the three musicians, called sidemen, re- musician who is unable to perform due to sickness is ex- ceive $200. On occasion the hotels and the musicians will pected to furnish a competent replacement. In that use the services of a booking agent. In those situations, regard, the Union's president testified that he has occa- PUERTO RICO HOTEL ASSOCIATION 433 sionally filled in as a replacement. The hotel pays the work in the hotel, and concessionairies or stores located regular musician not the replacement. It appears that mu- in the hotel. sicians have made arrangements among themselves to One of the General Counsel's witnesses, Angel Pena, "cover" each other in emergencies. testified that he has been a member of the Union for The Class AA hotels use different internal accounting over 35 years and has for many of those years led a 15- procedures. Some, such as the El San Juan, charge the piece orchestra known as Lito Pena and his Pan Ameri- weekly disbursements made to the musicians to accounts- can Orchestra. That orchestra performed in the single payable ledgers while other hotels record such contribu- engagement field, e.g., at a private party, and has also tions as part of their employee payroll accounts. For performed on television. In 1976, Pena contracted with budgetary purposes also these moneys are assessed the hotel to lead a 10-piece orchestra on a steady engage- against the sums allocated for the operating cost of the ment basis in its large dining room. Of the 15 musicians room where the musicians perform or against the overall in the Pan American Orchestra, he retained only 6. The dining/entertainment budget. One of the witnesses called 10-piece orchestra, during the time it played at the hotel, by the Respondent Association testified that the music was known simply as the Lito Pena and His Orchestra. presented by the hotels is part of the overall entertain- Pena testifed that it was necessary for him to change the ment package that the Class AA hotels provide for whole style and character of his music in order to ac- guests and that the hotels make decisions as to what re- commodate the mood of the room in the hotel in which strictions are to be put on the musicians' movements. An- his group played. Thus while his 15-piece Pan American other witness called by the Respondent Association .T other witness called by the Respondent Association Orchestra played vibrant Latin-American music, his 10- stated in this regard that some hotels impose restrictionshtel rchestra pleranc mus piece hotel orchestra played soft dinner-dance music and on the use by musicians of the public areas of the hotels o e str pefoes on music d and that most hotels discourage the use by musicians of ac performers on sheet music pr ed by casinos and bars as the musicians are "on a duty state those performers the manner required by those per- .. what they [are] employed for." formers. Pena testified that the style of the music played A considerable part of the record in this case pertains by his 15-piece Pan American group and that played by to the functions performed by the musicians in the re- his l 0-piece hotel orchestra were diametrically opposed spective hotels over the years. The significant testimony as he had to adjust his own style to "the needs of the thereon is set down below for each hotel: hotel. During the years he played at the Condado Holi- day Inn, he always complied with the requests of the 1. Condado Holiday Inn maitre d' to provide special music to please a guest. Pena testified that on one occasion he objected to the fact that The general manager of the Condado Holiday Inn tes- one of the star performers had required him to use a par- tified that he frequently meets with the band leaders on one of the star performers had required him to use a par- tified that he frequently meets with the band leaders on ticular individual as the drummer of his 10-piece group. his own to discuss market trends and to discuss the re- a inivi s peror ce sponses furnished by guests on questionnaires they have natate t he d aero ne completed. The general manager also testified that the unacceptable but the complaints he made thereon went unheeded and he was required to retain that drummer as two principal areas of concern he has discussed with the unheeded and he was requred to retan that drummer as band leaders are lulls in the music and complaints that part of the 10-piece orchestra the music is too loud. In the off season for tourists, Pena has had to reduce One of the General Counsel's witnesses testified that his 10-piece group to 8 musicians; he laid off 2 of the he had been hired by a group leader at this hotel in 1977 musicians and recalled them when the next tourist season to play piano. In 1979 he was asked by the hotel's food began, in December. He and all his musicians, while per- and beverage manager to take over that group. He took forming at the Condado Holiday Inn, received salaries in over the group as leader and hired another musician. excess of the minimum scale provided for in the Associ- That group played at this hotel until March 1980. While ation-Union contract. Whenever a star performer re- playing under the former leader, he earned "scale" and quired additional musicians, the hotel sent Pena a memo- was also given, by his former leader, an extra $20 a week randum to that effect; Pena then obtained the necessary to compensate him for special musical arrangements he extra musicians whose salaries were paid by the hotel prepared for the group. He has used the ID card given and were not deducted from the weekly sum stated in him by the hotel not only to collect his weekly pay Pena's contract with the hotel. check but also to get employee discounts. That card has The Union's president testified that all 10-piece hotel a notation on it that it is the property of the hotel. orchestras sound identical and they all play the same The Respondent Association called the hotel's director type dinner-dance music. One of the leaders called by of personnel to describe at length procedures followed in the Respondent Association as a witness, Jose Juan hiring through its personnel department employees Pinero, testified that his group plays the same style whose status is not disputed; e.g., maids. His testimony whether in the hotel or elsewhere. indicated that the details of the hiring procedure, orienta- As of the date of the hearing, there were four quartets tion, steps, etc., as set out above are applicable. Such em- playing at the lounges in the Condado Holiday Inn. ployees must furnish health and good conduct certifi- Three of these groups had been there about 3 years; the cates; such certificates are not required to be furnished fourth had been there 3 months. The leaders of two of by musicians. The personnel director further testified those groups had, sometime after April 30, 1979, and that ID cards are issued to construction contractors, sub- pursuant to the hotel's request, obtained employer-num- contractors who are engaged to perform refurbishing bers from the Commonwealth of Puerto Rico's tax PUERTO RICO HOTEL ASSOCIATION 433 sionally filled in as a replacement. The hotel pays the work in the hotel, and concessionairies or stores located regular musician not the replacement. It appears that mu- in the hotel. sicians have made arrangements among themselves to One of the General Counsel's witnesses, Angel Pena, "cover" each other in emergencies. testified that he has been a member of the Union for The Class AA hotels use different internal accounting over 35 years and has for many of those years led a 15- procedures. Some, such as the El San Juan, charge the piece orchestra known as Lito Pena and his Pan Ameri- weekly disbursements made to the musicians to accounts- can Orchestra. That orchestra performed in the single payable ledgers while other hotels record such contribu- engagement field, e.g., at a private party, and has also tions as part of their employee payroll accounts. For performed on television. In 1976, Pena contracted with budgetary purposes also these moneys are assessed the hotel to lead a 10-piece orchestra on a steady engage- against the sums allocated for the operating cost of the ment basis in its large dining room. Of the 15 musicians room where the musicians perform or against the overall in the Pan American Orchestra, he retained only 6. The dining/entertainment budget. One of the witnesses called 10-piece orchestra, during the time it played at the hotel, by the Respondent Association testified that the music was known simply as the Lito Pena and His Orchestra. presented by the hotels is part of the overall entertain- Pena testified that it was necessary for him to change the ment package that the Class AA hotels provide for whole style and character of his music in order to ac- guests and that the hotels make decisions as to what re- commodate the mood of the room in the hotel in which strictions are to be put on the musicians' movements. An- his group played. Thus, while his 15-piece Pan American other witness called by the Respondent Association Orchestra played vibrant Latin-American music, his 10- stated in this regard that some hotels impose restrictionshotel orchestra played soft dinner-dance music and on the use by musicians of the public areas of the hotels acompanied star performers on sheet music provided by and that most hotels discourage the use by musicians of t p i th m r b t per- casinos and bars as the musicians are "on a duty state formers if the the requite muse ped . . . what they [are] employed for."formers Pena testified that the style of the music played A considerable part of the record in this case pertains h i s 10 -piece P anorhetcan group and that played by to the functions performed by the musicians in the re- has lhe-phec e h o te l ajshiotra were diametrically opposed spective hotels over the years. The significant testimony as he had to adjust his own style to "the needs of the thereon is set down below for each hotel: hotel. During th e ye ar s h e played at the Condado Holi- day Inn, he always complied with the requests of the 1. Condado Holiday Inn maitre d' to provide special music to please a guest. Pena The general manager of the Condado Holiday Inn tes- testified that on one occasion he objected to the fact that The general manager of the Condado Holiday Inn tes- one of the star performers had required him to use a par- tified that he frequently meets with the band leaders on ^ tiua ^ividual as the drummer of his 10-piece group. his own to discuss market trends and to discuss the re- thcelah individualas peroup. spones urnshedby uess onquetionairs tey ave Pena stated that he found that individual's performance sponses furnished by guests on questionnaires they have cepalbuthco linsemdehrenwt completed. The general manager also testified that the u b t c he m theren wen two principal areas of concern he has discussed with the u n h eed ed an d he w as r eq u ire d t o r e t ain t h at d r u m m er as band leaders are lulls in the music and complaints that p ar t of the 10-piece orchestra. the music is too loud. I n t h e o f se aso n for tourists, Pena has had to reduce One of the General Counsel's witnesses testified that h is 10-piece group to 8 musicians; he laid off 2 of the he had been hired by a group leader at this hotel in 1977 musicians and recalled them when the next tourist season to play piano. In 1979 he was asked by the hotel's food began, in December. He and all his musicians, while per- and beverage manager to take over that group. He took forming at the Condado Holiday Inn, received salaries in over the group as leader and hired another musician. e x c es s of the minimum scale provided for in the Associ- That group played at this hotel until March 1980. While ation-Union contract. Whenever a star performer re- playing under the former leader, he earned "scale" and quired additional musicians, the hotel sent Pena a memo- was also given, by his former leader, an extra $20 a week randum to that effect; Pena then obtained the necessary to compensate him for special musical arrangements he extra musicians whose salaries were paid by the hotel prepared for the group. He has used the ID card given and were not deducted from the weekly sum stated in him by the hotel not only to collect his weekly pay Pena's contract with the hotel. check but also to get employee discounts. That card has IT h e Union's president testified that all 10-piece hotel a notation on it that it is the property of the hotel. orchestras sound identical and they all play the same The Respondent Association called the hotel's director type dinner-dance music. One of the leaders called by of personnel to describe at length procedures followed in the Respondent Association as a witness, Jose Juan hiring through its personnel department employees Pinero, testified that his group plays the same style whose status is not disputed; e.g., maids. His testimony whether in the hotel or elsewhere. indicated that the details of the hiring procedure, orienta- As of the date of the hearing, there were four quartets tion, steps, etc., as set out above are applicable. Such em- playing at the lounges in the Condado Holiday Inn. ployees must furnish health and good conduct certifi- Three of these groups had been there about 3 years; the cates; such certificates are not required to be furnished fourth had been there 3 months. The leaders of two of by musicians. The personnel director further testified those groups had, sometime after April 30, 1979, and that ID cards are issued to construction contractors, sub- pursuant to the hotel's request, obtained employer-num- contractors who are engaged to perform refurbishing bers from the Commonwealth of Puerto Rico's tax PUERTO RICO HOTEL ASSOCIATION 433 sionally filled in as a replacement. The hotel pays the work in the hotel, and concessionairies or stores located regular musician not the replacement. It appears that mu- in the hotel. sicians have made arrangements among themselves to One of the General Counsel's witnesses, Angel Pena, "cover" each other in emergencies. testified that he has been a member of the Union for The Class AA hotels use different internal accounting over 35 years and has for many of those years led a 15- procedures. Some, such as the El San Juan, charge the piece orchestra known as Lito Pena and his Pan Ameri- weekly disbursements made to the musicians to accounts- can Orchestra. That orchestra performed in the single payable ledgers while other hotels record such contribu- engagement field, e.g., at a private party, and has also tions as part of their employee payroll accounts. For performed on television. In 1976, Pena contracted with budgetary purposes also these moneys are assessed the hotel to lead a 10-piece orchestra on a steady engage- against the sums allocated for the operating cost of the ment basis in its large dining room. Of the 15 musicians room where the musicians perform or against the overall in the Pan American Orchestra, he retained only 6. The dining/entertainment budget. One of the witnesses called 10-piece orchestra, during the time it played at the hotel, by the Respondent Association testified that the music was known simply as the Lito Pena and His Orchestra. presented by the hotels is part of the overall entertain- Pena testified that it was necessary for him to change the ment package that the Class AA hotels provide for whole style and character of his music in order to ac- guests and that the hotels make decisions as to what re- commodate the mood of the room in the hotel in which strictions are to be put on the musicians' movements. An- his group played. Thus, while his 15-piece Pan American other witness called by the Respondent Association Orchestra played vibrant Latin-American music, his 10- stated in this regard that some hotels impose restrictionshotel orchestra played soft dinner-dance music and on the use by musicians of the public areas of the hotels acompanied star performers on sheet music provided by and that most hotels discourage the use by musicians of t p i th m r b t per- casinos and bars as the musicians are "on a duty state formers if the the requite muse ped . . . what they [are] employed for."formers Pena testified that the style of the music played A considerable part of the record in this case pertains h i s 10 -piece P anorhetcan group and that played by to the functions performed by the musicians in the re- has lhe-phec e h o te l ajshiotra were diametrically opposed spective hotels over the years. The significant testimony as he had to adjust his own style to "the needs of the thereon is set down below for each hotel: hotel. During th e ye ar s h e played at the Condado Holi- day Inn, he always complied with the requests of the 1. Condado Holiday Inn maitre d' to provide special music to please a guest. Pena The general manager of the Condado Holiday Inn tes- testified that on one occasion he objected to the fact that The general manager of the Condado Holiday Inn tes- one of the star performers had required him to use a par- tified that he frequently meets with the band leaders on ^ tiua ^ividual as the drummer of his 10-piece group. his own to discuss market trends and to discuss the re- thcelah individualas peroup. spones urnshedby uess onquetionairs tey ave Pena stated that he found that individual's performance sponses furnished by guests on questionnaires they have cepalbuthco linsemdehrenwt completed. The general manager also testified that the u b t c he m theren wen two principal areas of concern he has discussed with the u n h eed ed an d he w as r eq u ire d t o r e t ain t h at d r u m m er as band leaders are lulls in the music and complaints that p ar t of the 10-piece orchestra. the music is too loud. I n t h e o f se aso n for tourists, Pena has had to reduce One of the General Counsel's witnesses testified that h is 10-piece group to 8 musicians; he laid off 2 of the he had been hired by a group leader at this hotel in 1977 musicians and recalled them when the next tourist season to play piano. In 1979 he was asked by the hotel's food began, in December. He and all his musicians, while per- and beverage manager to take over that group. He took forming at the Condado Holiday Inn, received salaries in over the group as leader and hired another musician. e x c es s of the minimum scale provided for in the Associ- That group played at this hotel until March 1980. While ation-Union contract. Whenever a star performer re- playing under the former leader, he earned "scale" and quired additional musicians, the hotel sent Pena a memo- was also given, by his former leader, an extra $20 a week randum to that effect; Pena then obtained the necessary to compensate him for special musical arrangements he extra musicians whose salaries were paid by the hotel prepared for the group. He has used the ID card given and were not deducted from the weekly sum stated in him by the hotel not only to collect his weekly pay Pena's contract with the hotel. check but also to get employee discounts. That card has IT h e Union's president testified that all 10-piece hotel a notation on it that it is the property of the hotel. orchestras sound identical and they all play the same The Respondent Association called the hotel's director type dinner-dance music. One of the leaders called by of personnel to describe at length procedures followed in the Respondent Association as a witness, Jose Juan hiring through its personnel department employees Pinero, testified that his group plays the same style whose status is not disputed; e.g., maids. His testimony whether in the hotel or elsewhere. indicated that the details of the hiring procedure, orienta- As of the date of the hearing, there were four quartets tion, steps, etc., as set out above are applicable. Such em- playing at the lounges in the Condado Holiday Inn. ployees must furnish health and good conduct certifi- Three of these groups had been there about 3 years; the cates; such certificates are not required to be furnished fourth had been there 3 months. The leaders of two of by musicians. The personnel director further testified those groups had, sometime after April 30, 1979, and that ID cards are issued to construction contractors, sub- pursuant to the hotel's request, obtained employer-num- contractors who are engaged to perform refurbishing bers from the Commonwealth of Puerto Rico's tax PUERTO RICO HOTEL ASSOCIATION 433 sionally filled in as a replacement. The hotel pays the work in the hotel, and concessionairies or stores located regular musician not the replacement. It appears that mu- in the hotel. sicians have made arrangements among themselves to One of the General Counsel's witnesses, Angel Pena, "cover" each other in emergencies. testified that he has been a member of the Union for The Class AA hotels use different internal accounting over 35 years and has for many of those years led a 15- procedures. Some, such as the El San Juan, charge the piece orchestra known as Lito Pena and his Pan Ameri- weekly disbursements made to the musicians to accounts- can Orchestra. That orchestra performed in the single payable ledgers while other hotels record such contribu- engagement field, e.g., at a private party, and has also tions as part of their employee payroll accounts. For performed on television. In 1976, Pena contracted with budgetary purposes also these moneys are assessed the hotel to lead a 10-piece orchestra on a steady engage- against the sums allocated for the operating cost of the ment basis in its large dining room. Of the 15 musicians room where the musicians perform or against the overall in the Pan American Orchestra, he retained only 6. The dining/entertainment budget. One of the witnesses called 10-piece orchestra, during the time it played at the hotel, by the Respondent Association testified that the music was known simply as the Lito Pena and His Orchestra. presented by the hotels is part of the overall entertain- Pena testified that it was necessary for him to change the ment package that the Class AA hotels provide for whole style and character of his music in order to ac- guests and that the hotels make decisions as to what re- commodate the mood of the room in the hotel in which strictions are to be put on the musicians' movements. An- his group played. Thus, while his 15-piece Pan American other witness called by the Respondent Association Orchestra played vibrant Latin-American music, his 10- stated in this regard that some hotels impose restrictionshotel orchestra played soft dinner-dance music and on the use by musicians of the public areas of the hotels acompanied star performers on sheet music provided by and that most hotels discourage the use by musicians of t p i th m r b t per- casinos and bars as the musicians are "on a duty state formers if the the requite muse ped . . . what they [are] employed for."formers Pena testified that the style of the music played A considerable part of the record in this case pertains h i s 10 -piece P anorhetcan group and that played by to the functions performed by the musicians in the re- has lhe-phec e h o te l ajshiotra were diametrically opposed spective hotels over the years. The significant testimony as he had to adjust his own style to "the needs of the thereon is set down below for each hotel: hotel. During th e ye ar s h e played at the Condado Holi- day Inn, he always complied with the requests of the 1. Condado Holiday Inn maitre d' to provide special music to please a guest. Pena The general manager of the Condado Holiday Inn tes- testified that on one occasion he objected to the fact that The general manager of the Condado Holiday Inn tes- one of the star performers had required him to use a par- tified that he frequently meets with the band leaders on ^ tiuaridividual as the drummer of his 10-piece group. his own to discuss market trends and to discuss the re- thcelah individualas peroup. spones urnshedby uess onquetionairs tey ave Pena stated that he found that individual's performance sponses furnished by guests on questionnaires they have cepalbuthco linsemdehrenwt completed. The general manager also testified that the u b t c he m theren wen two principal areas of concern he has discussed with the u n h eed ed an d he w as r eq u ire d t o r e t ain t h at d r u m m er as band leaders are lulls in the music and complaints that p ar t of the 10-piece orchestra. the music is too loud. I n t h e o f se aso n for tourists, Pena has had to reduce One of the General Counsel's witnesses testified that h is 10-piece group to 8 musicians; he laid off 2 of the he had been hired by a group leader at this hotel in 1977 musicians and recalled them when the next tourist season to play piano. In 1979 he was asked by the hotel's food began, in December. He and all his musicians, while per- and beverage manager to take over that group. He took forming at the Condado Holiday Inn, received salaries in over the group as leader and hired another musician. e x c es s of the minimum scale provided for in the Associ- That group played at this hotel until March 1980. While ation-Union contract. Whenever a star performer re- playing under the former leader, he earned "scale" and quired additional musicians, the hotel sent Pena a memo- was also given, by his former leader, an extra $20 a week randum to that effect; Pena then obtained the necessary to compensate him for special musical arrangements he extra musicians whose salaries were paid by the hotel prepared for the group. He has used the ID card given and were not deducted from the weekly sum stated in him by the hotel not only to collect his weekly pay Pena's contract with the hotel. check but also to get employee discounts. That card has IT h e Union's president testified that all 10-piece hotel a notation on it that it is the property of the hotel. orchestras sound identical and they all play the same The Respondent Association called the hotel's director type dinner-dance music. One of the leaders called by of personnel to describe at length procedures followed in the Respondent Association as a witness, Jose Juan hiring through its personnel department employees Pinero, testified that his group plays the same style whose status is not disputed; e.g., maids. His testimony whether in the hotel or elsewhere. indicated that the details of the hiring procedure, orienta- As of the date of the hearing, there were four quartets tion, steps, etc., as set out above are applicable. Such em- playing at the lounges in the Condado Holiday Inn. ployees must furnish health and good conduct certifi- Three of these groups had been there about 3 years; the cates; such certificates are not required to be furnished fourth had been there 3 months. The leaders of two of by musicians. The personnel director further testified those groups had, sometime after April 30, 1979, and that ID cards are issued to construction contractors, sub- pursuant to the hotel's request, obtained employer-num- contractors who are engaged to perform refurbishing bers from the Commonwealth of Puerto Rico's tax 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. One of those leaders now receives a disbursement "honorary title" of musical director for the hotel, on "in- weekly from the hotel and issues his own checks to the teroffice correspondence" to make "a concerted effort to musicians in his group while remitting withholding taxes appreciably reduce the volume of [his] music" and that and other moneys deducted from their gross earnings to the hotel will "make periodic checks to ascertain im- the appropriate tax authorities. Apparently, however, the provement." One musician in this group testified he was hotel still makes contributions on behalf of all musicians instructed by Pinero to discontinue the use of amplifica- in the hotel to the pension fund established pursuant to tion equipment as the hotel's management was dissatis- the Union-Respondent Association contract. fled with the volume and quality of the sound it pro- The hotels use records kept and furnished by the lead- duced. Pinero stated in his testimony that he ordered the ers to calculate, inter alia, overtime earnings of the musi- musician to discontinue the use of that equipment on his cians in each group. In that regard, the General Counsel n placed in evidence a document with the heading, "Inter- office Correspondence" on the letterhead of the Con- Testmony was adduced by the General Counsel that, dado Holiday Inn. That document contained instructions on one occasion, Pinero left for vacation but the remain- directing leaders to submit written notice of overtime der of the group continued to play in his absence and earnings due so that delays in payroll processing would that there was no change in the overall presentation. In- be avoided. cidentally, it appears that Pinero has approved vacation The general manager of the Condado Holiday Inn tes- requests for members in his group but must obtain the tified that he once resolved a dispute between a leader of approval of the hotel's general manager before taking his a musical group at his hotel and the casino manager own vacation. there. He talked with these two persons and with hotel Several years ago, a musician brought a civil action security employees to find out what the problems be- against the Caribe Hilton for damages pertaining to a tween those two individuals were. He determined that it personal injury he allegedly suffered as a result of the was essentially a personality clash and he testified he was hotel's negligence. In contesting that suit, the attorney successful in smoothing out the differences between for the hotel provided by the insurance company which those two individuals so that he did not lose the services insured the hotel against the suit prepared an affidavit of either. He testified further that a similar situation had which was signed by a hotel official. That affidavit, used occurred previously between the leader of that musical as a defense in that suit, related that the plaintiff musi- group and with the hotel's food and beverage manager cian, as a hotel employee, was covered by the workers' and that problem had surfaced when the group leader, to d " the ore the annoyance of that manager, began to sit out the last ompenstion te was injure in te cours musical set instead of singing as scheduled. The general of hs employment with he hotel. The hotels comp manager apparently was successful in persuading that trler at that tme testfiedthat, pursuant to the guidance group leader to perform throughout the last musical set. of the attorney furnished by the insurance company, he stated in his affidavit that he, the comptroller, was fully 2. Caribe Hilton Hotel in power to supervise, direct, and control the services Roberto Lugo, vice president of Respondent Hilton provided by plaintiff musician as well as the means and Roberto Lugo, vice president of Respondent Hilton International Company, d/b/a Caribe Hilton Hotel, en- the details connected with the rendering of musical serv- gages the musical groups who have performed on a more ices. The General Counsel adduced other testimony to gages the musical groups who have performed on a more or less permanent basis at this hotel. In doing so, Lugo th e eff ec t t ha t one of the musicians in Pinero's group was has dealt with Felix Alegria, a booking agent. Alegria's told by the hotel's maitre d' that, as a hotel employee, he commissions have been paid by the Caribe Hilton and was to abide by the hotel's rules governing his right to have been calculated as a percentage of the total earn- bring guests on to the hotel premises. On another occa- ings of the musicians in each of the groups engaged. The sion, the maitre d' instructed that musician to see to it commissions are added on to the contract between the that the rear curtain did not remain open during the hotel and the group leader. One of those groups had dinner hour. been led for many years by Miguel Miranda. At one The General Counsel adduced testimony to the effect point, Miranda had hired a fourth trumpet player in that, on one occasion, the Caribe Hilton hotel had a place of a vocalist and had taken it upon himself to leave problem with one musician in the 10-piece orchestra of the bandstand before the last set was finished. Alegria the hotel and the hotel thus instructed the leader to re- then advised Miranda that the Caribe Hilton manage- place the individual forthwith. It appears however that ment found that the fourth trumpet player was not that individual was not let go immediately. needed, that he was to be replaced by a singer, that Mir- It is undisputed that the specific rules and regulations anda was to remain on the bandstand during the hours governing porters, maids, and all other such employees scheduled, and that he was to comply strictly with the are not applicable to the musicians at the Caribe Hilton, schedule set by the hotel except when the maitre d' or- that the musicians were paid by the checks drawn by the dered him to cease playing. Miranda was further advised hotel using computerized payroll operations, and that the that the hotel's management wanted Miranda to super- earnings of the musicians are charged for cost-analyses vise the musicians and to be present at all rehearsals. departments-food beverages and Another group Lugo engaged through Alegria has Another group Lugo engaged through Alegria has purpino-responsible for the entertainment of guests. been led by Jose Juan Pinero. On December 4, 1979, an casino-responsible for the entertainment of guests. official of the hotel wrote Pinero, who then held the 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. One of those leaders now receives a disbursement "honorary title" of musical director for the hotel, on "in- weekly from the hotel and issues his own checks to the teroffice correspondence" to make "a concerted effort to musicians in his group while remitting withholding taxes appreciably reduce the volume of [his) music" and that and other moneys deducted from their gross earnings to the hotel will "make periodic checks to ascertain im- the appropriate tax authorities. Apparently, however, the provement." One musician in this group testified he was hotel still makes contributions on behalf of all musicians instructed by Pinero to discontinue the use of amplifica- in the hotel to the pension fund established pursuant to tion equipment as the hotel's management was dissatis- the Union-Respondent Association contract. fied with the volume and quality of the sound it pro- The hotels use records kept and furnished by the lead- duced. Pinero stated in his testimony that he ordered the ers to calculate, inter alia, overtime earnings of the musi- musician to discontinue the use of that equipment on his cians in each group. In that regard, the General Counsel own. placed in evidence a document with the heading, "Inter- Testimony was adduced by the General Counsel that, office Correspondence" on the letterhead of the Con- dado Holiday Inn. That document contained instructions on one occasion, Pinero left for vacation but the remain- directing leaders to submit written notice of overtime d er of the group continued to play in his absence and earnings due so that delays in payroll processing would that there was no change in the overall presentation. In- be avoided. cidentally, it appears that Pinero has approved vacation The general manager of the Condado Holiday Inn tes- requests for members in his group but must obtain the tified that he once resolved a dispute between a leader of approval of the hotel's general manager before taking his a musical group at his hotel and the casino manager own vacation. there. He talked with these two persons and with hotel Several years ago, a musician brought a civil action security employees to find out what the problems be- against the Caribe Hilton for damages pertaining to a tween those two individuals were. He determined that it personal injury he allegedly suffered as a result of the was essentially a personality clash and he testified he was hotel's negligence. In contesting that suit, the attorney successful in smoothing out the differences between for the hotel provided by the insurance company which those two individuals so that he did not lose the services insured the hotel against the suit prepared an affidavit of either. He testified further that a similar situation had which was signed by a hotel official. That affidavit, used occurred previously between the leader of that musical as a defense in that suit, related that the plaintiff musi- group and with the hotel's food and beverage manager cian, as a hotel employee, was covered by the workers' and that problem had surfaced when the group leader, to c a a t h w iu " t cr the annoyance of that manager, began to sit out the last o h en .it th ht. T hotel'scomp musical set instead of singing as scheduled. The general o ller attloymentiwdthat, pra tote suidanc manager apparently was successful in persuading that t" 5"" a t t h a t t m e t es t lf i ed t h at. p w s w n t t o t h e g u ld a n c e group leader to perform throughout the last musical set. of the attorney furnished by the insurance company, he stated in his affidavit that he, the comptroller, was fully 2. Caribe Hilton Hotel in power to supervise, direct, and control the services Roberto Lugo, vice president of Respondent Hilton provided by plaintiff m us ic i an as w el l as t h e m ean s an d International Company, d/b/a Caribe Hilton Hotel, en- th e details connected with the rendering of musical serv- gages the musical groups who have performed on a more ic es. T h e G en er al C o u n sel ad d u c ed ot h er es t imo n y t o or less permanent basis at this hotel. In doing so, Lugo th e effec t t h at one of the musicians in Pinero's group was has dealt with Felix Alegria, a booking agent. Alegria's to l d by the hotel's maitre d' that, as a hotel employee, he commissions have been paid by the Caribe Hilton and w as to abide by the hotel's rules governing his right to have been calculated as a percentage of the total earn- bring guests on to the hotel premises. On another occa- ings of the musicians in each of the groups engaged. The sion, the maitre d' instructed that musician to see to it commissions are added on to the contract between the that the rear curtain did not remain open during the hotel and the group leader. One of those groups had dinner hour. been led for many years by Miguel Miranda. At one The General Counsel adduced testimony to the effect point, Miranda had hired a fourth trumpet player in that, on one occasion, the Caribe Hilton hotel had a place of a vocalist and had taken it upon himself to leave problem with one musician in the 10-piece orchestra of the bandstand before the last set was finished. Alegria the hotel and the hotel thus instructed the leader to re- then advised Miranda that the Caribe Hilton manage- place the individual forthwith. It appears however that ment found that the fourth trumpet player was not that individual was not let go immediately. needed, that he was to be replaced by a singer, that Mir- It is undisputed that the specific rules and regulations anda was to remain on the bandstand during the hours governing porters, maids, and all other such employees scheduled, and that he was to comply strictly with the are not applicable to the musicians at the Caribe Hilton, schedule set by the hotel except when the maitre d' or- that the musicians were paid by the checks drawn by the dered him to cease playing. Miranda was further advised hotel using computerized payroll operations, and that the that the hotel's management wanted Miranda to super- earnings of the musicians are charged for cost-analyses vise the musicians and to be present at all rehearsals. purposes to those departments-food beverages and Another group Lugo engaged through Alegria has c fo t e o get been led by Jose Juan Pinero. On December 4, 1979, an official of the hotel wrote Pinero, who then held the 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. One of those leaders now receives a disbursement "honorary title" of musical director for the hotel, on "in- weekly from the hotel and issues his own checks to the teroffice correspondence" to make "a concerted effort to musicians in his group while remitting withholding taxes appreciably reduce the volume of [his) music" and that and other moneys deducted from their gross earnings to the hotel will "make periodic checks to ascertain im- the appropriate tax authorities. Apparently, however, the provement." One musician in this group testified he was hotel still makes contributions on behalf of all musicians instructed by Pinero to discontinue the use of amplifica- in the hotel to the pension fund established pursuant to tion equipment as the hotel's management was dissatis- the Union-Respondent Association contract. fied with the volume and quality of the sound it pro- The hotels use records kept and furnished by the lead- duced. Pinero stated in his testimony that he ordered the ers to calculate, inter alia, overtime earnings of the musi- musician to discontinue the use of that equipment on his cians in each group. In that regard, the General Counsel own. placed in evidence a document with the heading, "Inter- Testimony was adduced by the General Counsel that, office Correspondence" on the letterhead of the Con- dado Holiday Inn. That document contained instructions on one occasion, Pinero left for vacation but the remain- directing leaders to submit written notice of overtime d er of the group continued to play in his absence and earnings due so that delays in payroll processing would that there was no change in the overall presentation. In- be avoided. cidentally, it appears that Pinero has approved vacation The general manager of the Condado Holiday Inn tes- requests for members in his group but must obtain the tified that he once resolved a dispute between a leader of approval of the hotel's general manager before taking his a musical group at his hotel and the casino manager own vacation. there. He talked with these two persons and with hotel Several years ago, a musician brought a civil action security employees to find out what the problems be- against the Caribe Hilton for damages pertaining to a tween those two individuals were. He determined that it personal injury he allegedly suffered as a result of the was essentially a personality clash and he testified he was hotel's negligence. In contesting that suit, the attorney successful in smoothing out the differences between for the hotel provided by the insurance company which those two individuals so that he did not lose the services insured the hotel against the suit prepared an affidavit of either. He testified further that a similar situation had which was signed by a hotel official. That affidavit, used occurred previously between the leader of that musical as a defense in that suit, related that the plaintiff musi- group and with the hotel's food and beverage manager cian, as a hotel employee, was covered by the workers' and that problem had surfaced when the group leader, to cmpensation act and that he was injured "in the course the annoyance of that manager, began to sit out the last o h en .it th ht. T hotel'scomp musical set instead of singing as scheduled. The general o ller attloymentiwdthat, pra tote suidanc manager apparently was successful in persuading that t" 5"" a t t h a t t m e t es t lf i ed t h at. p w s w n t t o t h e g u ld a n c e group leader to perform throughout the last musical set. of the attorney furnished by the insurance company, he stated in his affidavit that he, the comptroller, was fully 2. Caribe Hilton Hotel in power to supervise, direct, and control the services Roberto Lugo, vice president of Respondent Hilton provided by plaintiff m us ic i an as w el l as t h e m ean s an d International Company, d/b/a Caribe Hilton Hotel, en- th e details connected with the rendering of musical serv- gages the musical groups who have performed on a more ic es. T h e G en er al C o u n sel ad d u c ed ot h er es t imo n y t o or less permanent basis at this hotel. In doing so, Lugo th e effec t t h at one of the musicians in Pinero's group was has dealt with Felix Alegria, a booking agent. Alegria's to l d by the hotel's maitre d' that, as a hotel employee, he commissions have been paid by the Caribe Hilton and w as to abide by the hotel's rules governing his right to have been calculated as a percentage of the total earn- bring guests on to the hotel premises. On another occa- ings of the musicians in each of the groups engaged. The sion, the maitre d' instructed that musician to see to it commissions are added on to the contract between the that the rear curtain did not remain open during the hotel and the group leader. One of those groups had dinner hour. been led for many years by Miguel Miranda. At one The General Counsel adduced testimony to the effect point, Miranda had hired a fourth trumpet player in that, on one occasion, the Caribe Hilton hotel had a place of a vocalist and had taken it upon himself to leave problem with one musician in the 10-piece orchestra of the bandstand before the last set was finished. Alegria the hotel and the hotel thus instructed the leader to re- then advised Miranda that the Caribe Hilton manage- place the individual forthwith. It appears however that ment found that the fourth trumpet player was not that individual was not let go immediately. needed, that he was to be replaced by a singer, that Mir- It is undisputed that the specific rules and regulations anda was to remain on the bandstand during the hours governing porters, maids, and all other such employees scheduled, and that he was to comply strictly with the are not applicable to the musicians at the Caribe Hilton, schedule set by the hotel except when the maitre d' or- that the musicians were paid by the checks drawn by the dered him to cease playing. Miranda was further advised hotel using computerized payroll operations, and that the that the hotel's management wanted Miranda to super- earnings of the musicians are charged for cost-analyses vise the musicians and to be present at all rehearsals. purposes to those departments-food beverages and Another group Lugo engaged through Alegria has c fo t e o get been led by Jose Juan Pinero. On December 4, 1979, an official of the hotel wrote Pinero, who then held the 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. One of those leaders now receives a disbursement "honorary title" of musical director for the hotel, on "in- weekly from the hotel and issues his own checks to the teroffice correspondence" to make "a concerted effort to musicians in his group while remitting withholding taxes appreciably reduce the volume of [his) music" and that and other moneys deducted from their gross earnings to the hotel will "make periodic checks to ascertain im- the appropriate tax authorities. Apparently, however, the provement." One musician in this group testified he was hotel still makes contributions on behalf of all musicians instructed by Pinero to discontinue the use of amplifica- in the hotel to the pension fund established pursuant to tion equipment as the hotel's management was dissatis- the Union-Respondent Association contract. fied with the volume and quality of the sound it pro- The hotels use records kept and furnished by the lead- duced. Pinero stated in his testimony that he ordered the ers to calculate, inter alia, overtime earnings of the musi- musician to discontinue the use of that equipment on his cians in each group. In that regard, the General Counsel own. placed in evidence a document with the heading, "Inter- Testimony was adduced by the General Counsel that, office Correspondence" on the letterhead of the Con- dado Holiday Inn. That document contained instructions on one occasion, Pinero left for vacation but the remain- directing leaders to submit written notice of overtime d er of the group continued to play in his absence and earnings due so that delays in payroll processing would that there was no change in the overall presentation. In- be avoided. cidentally, it appears that Pinero has approved vacation The general manager of the Condado Holiday Inn tes- requests for members in his group but must obtain the tified that he once resolved a dispute between a leader of approval of the hotel's general manager before taking his a musical group at his hotel and the casino manager own vacation. there. He talked with these two persons and with hotel Several years ago, a musician brought a civil action security employees to find out what the problems be- against the Caribe Hilton for damages pertaining to a tween those two individuals were. He determined that it personal injury he allegedly suffered as a result of the was essentially a personality clash and he testified he was hotel's negligence. In contesting that suit, the attorney successful in smoothing out the differences between for the hotel provided by the insurance company which those two individuals so that he did not lose the services insured the hotel against the suit prepared an affidavit of either. He testified further that a similar situation had which was signed by a hotel official. That affidavit, used occurred previously between the leader of that musical as a defense in that suit, related that the plaintiff musi- group and with the hotel's food and beverage manager cian, as a hotel employee, was covered by the workers' and that problem had surfaced when the group leader, to cmpensation act and that he was injured "in the course the annoyance of that manager, began to sit out the last o h en .it th ht. T hotel'scomp musical set instead of singing as scheduled. The general o ller attloymentiwdthat, pra tote suidanc manager apparently was successful in persuading that t""" a t t h a t t m e t es t lf i ed t h at. p w s w n t t o t h e g u ld a n c e group leader to perform throughout the last musical set. of the attorney furnished by the insurance company, he stated in his affidavit that he, the comptroller, was fully 2. Caribe Hilton Hotel in power to supervise, direct, and control the services Roberto Lugo, vice president of Respondent Hilton provided by plaintiff m us ic i an as w el l as t h e m ean s an d International Company, d/b/a Caribe Hilton Hotel, en- th e details connected with the rendering of musical serv- gages the musical groups who have performed on a more ic es. T h e G en er al C o u n sel ad d u c ed ot h er es t imo n y t o or less permanent basis at this hotel. In doing so, Lugo th e ef ec t t h at one of the musicians in Pinero's group was has dealt with Felix Alegria, a booking agent. Alegria's to l d by the hotel's maitre d' that, as a hotel employee, he commissions have been paid by the Caribe Hilton and w as to abide by the hotel's rules governing his right to have been calculated as a percentage of the total earn- bring guests on to the hotel premises. On another occa- ings of the musicians in each of the groups engaged. The sion, the maitre d' instructed that musician to see to it commissions are added on to the contract between the that the rear curtain did not remain open during the hotel and the group leader. One of those groups had dinner hour. been led for many years by Miguel Miranda. At one The General Counsel adduced testimony to the effect point, Miranda had hired a fourth trumpet player in that, on one occasion, the Caribe Hilton hotel had a place of a vocalist and had taken it upon himself to leave problem with one musician in the 10-piece orchestra of the bandstand before the last set was finished. Alegria the hotel and the hotel thus instructed the leader to re- then advised Miranda that the Caribe Hilton manage- place the individual forthwith. It appears however that ment found that the fourth trumpet player was not that individual was not let go immediately. needed, that he was to be replaced by a singer, that Mir- It is undisputed that the specific rules and regulations anda was to remain on the bandstand during the hours governing porters, maids, and all other such employees scheduled, and that he was to comply strictly with the are not applicable to the musicians at the Caribe Hilton, schedule set by the hotel except when the maitre d' or- that the musicians were paid by the checks drawn by the dered him to cease playing. Miranda was further advised hotel using computerized payroll operations, and that the that the hotel's management wanted Miranda to super- earnings of the musicians are charged for cost-analyses vise the musicians and to be present at all rehearsals. purposes to those departments-food beverages and Another group Lugo engaged through Alegria has c fo t e o get been led by Jose Juan Pinero. On December 4, 1979, an official of the hotel wrote Pinero, who then held the PUERTO RICO HOTEL ASSOCIATION 435 3. La Concha Hotel-Condado Beach Hotel picana Club band by Jesus Caunedo. The rest of the or- e Geral C l p d in e e c s of 1 chestra was unchanged except that Caunedo hired a pia- The General Counsel placed in evidence copies of 16 replacement for Sacacas who had been the pia- interoffice memorandums by this hotel's food and bever- ist as a relamacaca had be the pia- age manager and by other staff officials which are ad- nt otr u an teste tat e a d that dressed to leaders of musical groups performing there, or group at this hotel in 1962 as a trumpet player and that to accounting department heads concerning those musi- Sacacas was the leader for about 15 years. A third musi- to accounting department heads concerning those musi- cal groups. Typical of these memorandums was a memo- cian, also a trumpet player, joined the group in 1966 and randum of May 3, 1977, by the food and service manager has in recent years, replaced Caunedoasleader when- to three separate musical groups advising them that ever Caunedo took a vacation He stated that, through- "[C]ommencing Friday, May 6, 1977, please comply out the years he performed with this group at the hotel, with the following schedule at Mi Sitio lounge." The there was no essential change in the roup's perform- memorandum then notified one group that it will play on ance. Wednesday through Friday 5 p.m. to 9:30 p.m. and that In common parlance, a large group that plays in the it will have "Tuesday off"; another group was scheduled main entertainment room of a Class AA hotel, such as to play on Tuesdays from 9:30 p.m. to 2 a.m., from the El San Juan, is sometimes referred to as the "house Wednesday to Sunday from 10 p.m. to 2:30 a.m. and that band." it would have "Monday off." Other memorandums re- Leaders at the El San Juan maintain records of the flected that one group's hours were being reduced by 2 overtime hours worked by members of their respective hours because of a "lack of business" and that another groups and also as to which members are entitled to ad- group was notified that there was a change in the rooms ditional compensation by reason of their having played in which it would play and in their "work schedule" as more than one instrument during a performance; i.e., pay reflected therein. On another occasion, a musical group for "doubling." The hotel's general manager testified that was advised that its services would be required on an he has to trust these reports of these leaders. Counsel for overtime basis for 1-1/2 hours at a cocktail party 8 days Respondent El San Juan developed testimony that the hence; the hotel's comptroller was simultaneously in- contract between the hotel and the group leader con- structed to remunerate the group accordingly. tained a "lump sum" amount of money. This figure was The Respondent Association developed testimony the total weekly cost to the hotel of the regular salaries from the hotel's executive assistant manager who had of the members of a group and of the agent's commission been promoted to that post from the position of food and fee. It was not the total contractual sum as the length of beverage manager that he did not screen musicians for the contract was for all practical purposes indefinite and hiring or impose on them their style of playing and that it did not include "doubling" costs or overtime costs or he does not direct them in any of the technical aspects of moneys paid to extra musicians hired by the leader at the their musical performances. The Respondent Association direction of the hotel. In that regard, the testimony is also called as its witness a dancer, Marcello Palacios, clear that, on occasion, it was necessary to augment the who stated that he heads a group of six dancers who per- usual 10-piece band with extra musicians as required by a form at the hotel and that he also pays three musicians star attraction. The leader hired the extra musicians but who accompany his dancers. Palacios testified on cross- their salaries were paid by the hotel which also deducted examination that, for the first 4 months, the overall therefrom the usual taxes. It appears that here, also, the group of 10 performed at the hotel beginning in Decem- hotel relied on the leader's judgment inselecting the mu- ber 1977, he paid all 10. However, from early 1978 and sicians and in setting the gross weekly earnings of the until the week preceding the hearing in this case, the extra musicians so engaged. hotel had paid these musicians directly. In rebuttal, the The General Counsel proffered other testimony and General Counsel's witness, Jose Torres, testified that he exhibits to establish that the hotel's management issued was the leader of the group of musicians who played as memorandums to a leader whereby he was instructed to part of that Flamenco dance group and that the hotel's advise the musicians in his group that they are not to general manager had, on one occasion, told him that Pa- place their instruments against the walls of the hotel and lacios had no authority to "dismiss him" but that only that they are not to go into the kitchen to get coffee but the hotel's manager could do so. The hotel on April 24, are to use the employee cafeteria instead. The leader of 1980, advised Torres that his services would no longer the group and also the hotel's maitre d' informed the mu- be needed as of May 10, 1980, because of a change in the sicians that they are not to "warm up" in the dining area dance program and as the hotel "would not contract but that they should tune their instruments in the room anymore musicians for that presentation." provided for them in the hotel. Gerena testified that his group was "frequently" told by the maitre d' to lower 4. El San Juan Hotel the volume of the music to obtain a subdued sound. When the strike began in 1979 and for over 10 years The General Counsel also called the hotel's general previously, the El San Juan Hotel had a group of 10 mu- manager as a witness. He testified that he had signed an sicians playing at its Tropicana Club Room. Eduado affidavit submitted during the investigation of the under- Gerena testified for the General Counsel that he was lying unfair labor practice charge in this case and that hired as a first saxophonist in December 1972 by An- his affidavit related that the hotel "had 15 regular em- selmo Sacacas, the leader then of that orchestra. In 1976, ployee musicians who are paid directly by the hotel . . . Sacacas retired and he was replaced as leader of the Tro- 13 of whom performed at the Tropicana Club room and PUERTO RICO HOTEL ASSOCIATION 435 3. La Concha Hotel-Condado Beach Hotel picana Club band by Jesus Caunedo. The rest of the or- The General Counsel placed in. evidence copies of 16 chestra was unchanged except that Caunedo hired a pia- The General Counsel placed in evidence copies of 16 ^ nis as replacement for Sacacas who had been the pia- interoffice memorandums by this hotel's food and bever- n as a r f S wh h age manager and by other staff officials which are ad- nist. Another musician testified that he had joined that dressed to leaders of musical groups performing there, or p a t ht i 1 as a tm p to acoutingdeprtmet hads oncrnin thse msi- Sacacas was the leader for about 15 years. A third musi- to accounting department heads concerning those musi-^ cal groups. Typical of these memorandums was a memo- c , j t g i 1 an randum of May 3, 1977, by the food and service manager ha s, in r ec en t years repl ac e d C a u ned o as l ead er w h en - to three separate musical groups advising them that ever Caunedo took a vacation He stated that, through- "[C]ommencing Friday, May 6, 1977, please comply o u t t h e years h e performed with this group at the hotel, with the following schedule at Mi Sitio lounge." The th e re w a s no e sse n t l a n in t h e grouPs perform- memorandum then notified one group that it will play on ance. Wednesday through Friday 5 p.m. to 9:30 p.m. and that I n common parlance, a large group that plays in the it will have "Tuesday off"; another group was scheduled m a in entertainment room of a Class AA hotel, such as to play on Tuesdays from 9:30 p.m. to 2 a.m., from t h e E l S a n J u a n , is sometimes referred to as the "house Wednesday to Sunday from 10 p.m. to 2:30 a.m. and that band." it would have "Monday off." Other memorandums re- Leaders at the El San Juan maintain records of the flected that one group's hours were being reduced by 2 overtime hours worked by members of their respective hours because of a "lack of business" and that another groups and also as to which members are entitled to ad- group was notified that there was a change in the rooms ditional compensation by reason of their having played in which it would play and in their "work schedule" as more than one instrument during a performance; i.e., pay reflected therein. On another occasion, a musical group for "doubling." The hotel's general manager testified that was advised that its services would be required on an he has to trust these reports of these leaders. Counsel for overtime basis for 1-1/2 hours at a cocktail party 8 days Respondent El San Juan developed testimony that the hence; the hotel's comptroller was simultaneously in- contract between the hotel and the group leader con- structed to remunerate the group accordingly. tained a "lump sum" amount of money. This figure was The Respondent Association developed testimony the total weekly cost to the hotel of the regular salaries from the hotel's executive assistant manager who had of the members of a group and of the agent's commission been promoted to that post from the position of food and fee. It was not the total contractual sum as the length of beverage manager that he did not screen musicians for the contract was for all practical purposes indefinite and hiring or impose on them their style of playing and that it did not include "doubling" costs or overtime costs or he does not direct them in any of the technical aspects of moneys paid to extra musicians hired by the leader at the their musical performances. The Respondent Association direction of the hotel. In that regard, the testimony is also called as its witness a dancer, Marcello Palacios, clear that, on occasion, it was necessary to augment the who stated that he heads a group of six dancers who per- usual 10-piece band with extra musicians as required by a form at the hotel and that he also pays three musicians star attraction. The leader hired the extra musicians but who accompany his dancers. Palacios testified on cross- their salaries were paid by the hotel which also deducted examination that, for the first 4 months, the overall therefrom the usual taxes. It appears that here, also, the group of 10 performed at the hotel beginning in Decem- hotel relied on the leader's judgment inselecting the mu- ber 1977, he paid all 10. However, from early 1978 and sicians and in setting the gross weekly earnings of the until the week preceding the hearing in this case, the extra musicians so engaged. hotel had paid these musicians directly. In rebuttal, the IThe General Counsel proffered other testimony and General Counsel's witness, Jose Torres, testified that he exhibits to establish that the hotel's management issued was the leader of the group of musicians who played as memorandums to a leader whereby he was instructed to part of that Flamenco dance group and that the hotel's advise the musicians in his group that they are not to general manager had, on one occasion, told him that Pa- place their instruments against the walls of the hotel and lacios had no authority to "dismiss him" but that only that they are not to go into the kitchen to get coffee but the hotel's manager could do so. The hotel on April 24, are to use the employee cafeteria instead. The leader of 1980, advised Torres that his services would no longer the group and also the hotel's maitre d' informed the mu- be needed as of May 10, 1980, because of a change in the sicians that they are not to "warm up" in the dining area dance program and as the hotel "would not contract but that they should tune their instruments in the room anymore musicians for that presentation." provided for them in the hotel. Gerena testified that his group was "frequently" told by the maitre d' to lower the volume of the music to obtain a subdued sound. When the strike began in 1979 and for over 10 years The General Counsel also called the hotel's general previously, the El San Juan Hotel had a group of 10 mu- manager as a witness. He testified that he had signed an sicians playing at its Tropicana Club Room. Eduado affidavit submitted during the investigation of the under- Gerena testified for the General Counsel that he was lying unfair labor practice charge in this case and that hired as a first saxophonist in December 1972 by An- his affidavit related that the hotel "had 15 regular em- selmo Sacacas, the leader then of that orchestra. In 1976, ployee musicians who are paid directly by the hotel . . . Sacacas retired and he was replaced as leader of the Tro- 13 of whom performed at the Tropicana Club room and PUERTO RICO HOTEL ASSOCIATION 435 3. La Concha Hotel-Condado Beach Hotel picana Club band by Jesus Caunedo. The rest of the or- The General Counsel placed in. evidence copies of 16 chestra was unchanged except that Caunedo hired a pia- The General Counsel placed in evidence copies of 16 ^ nis as replacement for Sacacas who had been the pia- interoffice memorandums by this hotel's food and bever- n as a r f S wh h age manager and by other staff officials which are ad- nist. Another musician testified that he had joined that dressed to leaders of musical groups performing there, or p a t ht i 1 as a tm p to acoutingdeprtmet hads oncrnin thse msi- Sacacas was the leader for about 15 years. A third musi- to accounting department heads concerning those musi-^ cal groups. Typical of these memorandums was a memo- c , j t g i 1 an randum of May 3, 1977, by the food and service manager ha s, in r ec en t yers repl ac e d C a u ned o as l ead er w h en - to three separate musical groups advising them that ever Caunedo took a vacation He stated that, through- "[C]ommencing Friday, May 6, 1977, please comply o u t t h e years h e performed with this group at the hotel, with the following schedule at Mi Sitio lounge." The th e re w a s no e sse n t l a n in t h e grouPs perform- memorandum then notified one group that it will play on ance. Wednesday through Friday 5 p.m. to 9:30 p.m. and that I n common parlance, a large group that plays in the it will have "Tuesday off"; another group was scheduled m a in entertainment room of a Class AA hotel, such as to play on Tuesdays from 9:30 p.m. to 2 a.m., from t h e E l S a n J u a n , is sometimes referred to as the "house Wednesday to Sunday from 10 p.m. to 2:30 a.m. and that band." it would have "Monday off." Other memorandums re- Leaders at the El San Juan maintain records of the flected that one group's hours were being reduced by 2 overtime hours worked by members of their respective hours because of a "lack of business" and that another groups and also as to which members are entitled to ad- group was notified that there was a change in the rooms ditional compensation by reason of their having played in which it would play and in their "work schedule" as more than one instrument during a performance; i.e., pay reflected therein. On another occasion, a musical group for "doubling." The hotel's general manager testified that was advised that its services would be required on an he has to trust these reports of these leaders. Counsel for overtime basis for 1-1/2 hours at a cocktail party 8 days Respondent El San Juan developed testimony that the hence; the hotel's comptroller was simultaneously in- contract between the hotel and the group leader con- structed to remunerate the group accordingly. tained a "lump sum" amount of money. This figure was The Respondent Association developed testimony the total weekly cost to the hotel of the regular salaries from the hotel's executive assistant manager who had of the members of a group and of the agent's commission been promoted to that post from the position of food and fee. It was not the total contractual sum as the length of beverage manager that he did not screen musicians for the contract was for all practical purposes indefinite and hiring or impose on them their style of playing and that it did not include "doubling" costs or overtime costs or he does not direct them in any of the technical aspects of moneys paid to extra musicians hired by the leader at the their musical performances. The Respondent Association direction of the hotel. In that regard, the testimony is also called as its witness a dancer, Marcello Palacios, clear that, on occasion, it was necessary to augment the who stated that he heads a group of six dancers who per- usual 10-piece band with extra musicians as required by a form at the hotel and that he also pays three musicians star attraction. The leader hired the extra musicians but who accompany his dancers. Palacios testified on cross- their salaries were paid by the hotel which also deducted examination that, for the first 4 months, the overall therefrom the usual taxes. It appears that here, also, the group of 10 performed at the hotel beginning in Decem- hotel relied on the leader's judgment inselecting the mu- ber 1977, he paid all 10. However, from early 1978 and sicians and in setting the gross weekly earnings of the until the week preceding the hearing in this case, the extra musicians so engaged. hotel had paid these musicians directly. In rebuttal, the IThe General Counsel proffered other testimony and General Counsel's witness, Jose Torres, testified that he exhibits to establish that the hotel's management issued was the leader of the group of musicians who played as memorandums to a leader whereby he was instructed to part of that Flamenco dance group and that the hotel's advise the musicians in his group that they are not to general manager had, on one occasion, told him that Pa- place their instruments against the walls of the hotel and lacios had no authority to "dismiss him" but that only that they are not to go into the kitchen to get coffee but the hotel's manager could do so. The hotel on April 24, are to use the employee cafeteria instead. The leader of 1980, advised Torres that his services would no longer the group and also the hotel's maitre d' informed the mu- be needed as of May 10, 1980, because of a change in the sicians that they are not to "warm up" in the dining area dance program and as the hotel "would not contract but that they should tune their instruments in the room anymore musicians for that presentation." provided for them in the hotel. Gerena testified that his group was "frequently" told by the maitre d' to lower the volume of the music to obtain a subdued sound. When the strike began in 1979 and for over 10 years The General Counsel also called the hotel's general previously, the El San Juan Hotel had a group of 10 mu- manager as a witness. He testified that he had signed an sicians playing at its Tropicana Club Room. Eduado affidavit submitted during the investigation of the under- Gerena testified for the General Counsel that he was lying unfair labor practice charge in this case and that hired as a first saxophonist in December 1972 by An- his affidavit related that the hotel "had 15 regular em- selmo Sacacas, the leader then of that orchestra. In 1976, ployee musicians who are paid directly by the hotel . . . Sacacas retired and he was replaced as leader of the Tro- 13 of whom performed at the Tropicana Club room and PUERTO RICO HOTEL ASSOCIATION 435 3. La Concha Hotel-Condado Beach Hotel picana Club band by Jesus Caunedo. The rest of the or- The General Counsel placed in. evidence copies of 16 chestra was unchanged except that Caunedo hired a pia- The General Counsel placed in evidence copies of 16 ^ nis as replacement for Sacacas who had been the pia- interoffice memorandums by this hotel's food and bever- n as a r f S wh h age manager and by other staff officials which are ad- nist. Another musician testified that he had joined that dressed to leaders of musical groups performing there, or p a t ht i 1 as a tm p to acoutingdeprtmet hads oncrnin thse msi- Sacacas was the leader for about 15 years. A third musi- to accounting department heads concerning those musi-^ cal groups. Typical of these memorandums was a memo- c , j t g i 1 an randum of May 3, 1977, by the food and service manager ha s, in r ec en t yers repl ac e d C a u ned o as l ead er w h en - to three separate musical groups advising them that ever Caunedo took a vacation He stated that, through- "[C]ommencing Friday, May 6, 1977, please comply o u t t h e years h e performed with this group at the hotel, with the following schedule at Mi Sitio lounge." The th e re w a s no e sse n t l a n in t h e grouPs perform- memorandum then notified one group that it will play on ance. Wednesday through Friday 5 p.m. to 9:30 p.m. and that I n common parlance, a large group that plays in the it will have "Tuesday off"; another group was scheduled m a in entertainment room of a Class AA hotel, such as to play on Tuesdays from 9:30 p.m. to 2 a.m., from t h e E l S a n J u a n , is sometimes referred to as the "house Wednesday to Sunday from 10 p.m. to 2:30 a.m. and that band." it would have "Monday off." Other memorandums re- Leaders at the El San Juan maintain records of the flected that one group's hours were being reduced by 2 overtime hours worked by members of their respective hours because of a "lack of business" and that another groups and also as to which members are entitled to ad- group was notified that there was a change in the rooms ditional compensation by reason of their having played in which it would play and in their "work schedule" as more than one instrument during a performance; i.e., pay reflected therein. On another occasion, a musical group for "doubling." The hotel's general manager testified that was advised that its services would be required on an he has to trust these reports of these leaders. Counsel for overtime basis for 1-1/2 hours at a cocktail party 8 days Respondent El San Juan developed testimony that the hence; the hotel's comptroller was simultaneously in- contract between the hotel and the group leader con- structed to remunerate the group accordingly. tained a "lump sum" amount of money. This figure was The Respondent Association developed testimony the total weekly cost to the hotel of the regular salaries from the hotel's executive assistant manager who had of the members of a group and of the agent's commission been promoted to that post from the position of food and fee. It was not the total contractual sum as the length of beverage manager that he did not screen musicians for the contract was for all practical purposes indefinite and hiring or impose on them their style of playing and that it did not include "doubling" costs or overtime costs or he does not direct them in any of the technical aspects of moneys paid to extra musicians hired by the leader at the their musical performances. The Respondent Association direction of the hotel. In that regard, the testimony is also called as its witness a dancer, Marcello Palacios, clear that, on occasion, it was necessary to augment the who stated that he heads a group of six dancers who per- usual 10-piece band with extra musicians as required by a form at the hotel and that he also pays three musicians star attraction. The leader hired the extra musicians but who accompany his dancers. Palacios testified on cross- their salaries were paid by the hotel which also deducted examination that, for the first 4 months, the overall therefrom the usual taxes. It appears that here, also, the group of 10 performed at the hotel beginning in Decem- hotel relied on the leader's judgment inselecting the mu- ber 1977, he paid all 10. However, from early 1978 and sicians and in setting the gross weekly earnings of the until the week preceding the hearing in this case, the extra musicians so engaged. hotel had paid these musicians directly. In rebuttal, the IThe General Counsel proffered other testimony and General Counsel's witness, Jose Torres, testified that he exhibits to establish that the hotel's management issued was the leader of the group of musicians who played as memorandums to a leader whereby he was instructed to part of that Flamenco dance group and that the hotel's advise the musicians in his group that they are not to general manager had, on one occasion, told him that Pa- place their instruments against the walls of the hotel and lacios had no authority to "dismiss him" but that only that they are not to go into the kitchen to get coffee but the hotel's manager could do so. The hotel on April 24, are to use the employee cafeteria instead. The leader of 1980, advised Torres that his services would no longer the group and also the hotel's maitre d' informed the mu- be needed as of May 10, 1980, because of a change in the sicians that they are not to "warm up" in the dining area dance program and as the hotel "would not contract but that they should tune their instruments in the room anymore musicians for that presentation." provided for them in the hotel. Gerena testified that his group was "frequently" told by the maitre d' to lower the volume of the music to obtain a subdued sound. When the strike began in 1979 and for over 10 years The General Counsel also called the hotel's general previously, the El San Juan Hotel had a group of 10 mu- manager as a witness. He testified that he had signed an sicians playing at its Tropicana Club Room. Eduado affidavit submitted during the investigation of the under- Gerena testified for the General Counsel that he was lying unfair labor practice charge in this case and that hired as a first saxophonist in December 1972 by An- his affidavit related that the hotel "had 15 regular em- selmo Sacacas, the leader then of that orchestra. In 1976, ployee musicians who are paid directly by the hotel . . . Sacacas retired and he was replaced as leader of the Tro- 13 of whom performed at the Tropicana Club room and 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 performed at the Right Knight room." Respondent El while working," that they should follow the instructions San Juan Hotel called its president, its vice president for of the lounge manager and inform him of all changes, finance, its general manager, its personnel director, and lateness, new equipment, etc. One of the musical groups also accounting supervisors as witnesses. They testified played for over 4 years in one of the Dupont Plaza that the only instruction given the maitre d' as far as the lounges before the food and service manager shifted that musicians are concerned is to make sure that a musical group to perform at another lounge. group performs according to the contract between the A predecessor Class AA hotel, the Hyatt Puerto Rico, leader and the hotel, that each musical group is paid a issued nine rules in 1973 governing the conduct of its lump sum which is charged to accounts payable and not musicians-one of which provided for "immediate dis- to payroll, that the hotel's personnel department does not missal for . . . intoxication." maintain any personnel file for any musician appearing at Another hotel, the Holiday Inn at Isla Verda, had the hotel whereas it does maintain such files for maids completed in March 1977, a questionnaire sent in by a and all of its other regular employees and that the musi- bank to verify "the employment" of the musician named cians do not have to comply with regulations established therein who was seeking a loan. In responding to the for the hotel's regular employees, e.g., those requiring questionnaire the hotel's personnel manager noted that employees to punch time cards. Its data processing man- prospects for that musician's continued employment at ager, when asked a preliminary question respecting the the hotel were good. He testified that he based this way "sidemen," i.e., the musicians, were paid, stated that anwer o th e fact that te term of the musicians con- they "get paid like the rest of the employees." tract was indefinite. In 1978, the personnel manager of 5 Other Class AA hotels that hotel wrote a letter on behalf of a musician in which he referred to the musician as an employee who works The complaints in these consolidated cases identify the for the hotel. The testimony of the Isla Verda's hotel Respondent Association and the six Class AA hotels dis- personnel manager was to the effect that a group of six cussed above as the actual Respondents. Testimony was musicians had played there for 7 years and that their adduced at the hearing respecting the operations of other leader is paid on a "lump sum" pursuant to his request. It Class AA hotels vis-a-vis the musicians in order to throw was not made clear whether that leader received an ad- further light on the employee versus independent con- vance on his contract or payment of the total of the re- tractor issue and as such evidence pertains to other spective weekly gross earnings of the musicians in his issues; e.g., the appropriateness of the unit. group or payment for the total of their respective weekly The food and service manager of the Dupont Plaza net earnings; i.e., after income, social security, and other Hotel, a Class AA hotel, testified that he selects musical taxes had been deducted by the hotel. groups by evaluating whether their style fits in with the Th General Counsel called a witness who testified ambiance of the room to which he assigns the group. He that, n 1979, he had played in an orchestra in a Class prepares the working schedules for all musical groups of AA hotel, the Cerromar. While there, the musicians in that hotel. Each group normally performs as per the that orchestra had changed their uniform attire from a hours set in the contracts between the Respondent Asso- black jacket to rust colored jacket pursuant to the re- ciation and the Union; i.e., on a 6-day, 28-hour week quest of the hotel's nager and that the hotel paid for basis. The food and service manager at the Dupont Plaza those new "uniforms." On one occasion, the maitre d' of assigns these groups to perform in designated rooms or the room in which the orchestra played restricted the lounges. On one occasion, a leader of a group in the musicians from smoking while near the bandstand. Parado 30 lounge used a female trumpet player who in Parado 30 lounge used a female trumpet player who in A leader called by the General Counsel testified that the judgment of the food and service manager did notorado Beach Hotel his group had been playing at the Dorado Beach Hotel dress appropriately for that lounge and who, in his judg- for the hotel's food and beverage manager ment, should be replaced by a saxophone player. He ear the he s oo and locations wh spoke directly to the trumpet player about improving her ares the shedules gr t o hours and locations which are followed by his group, that the maitre d' of the room appearance and advised the leader that he had 30 days to i whih his ghat them at ar time in which his group plays has told them, at various times, improve the group's performance. Wheni the trumpet to play softer, and that the maitre d' "might" let them go player's performance did not improve, the group re-is "empty." signed. The food and service manager approves all vaca- tion requests made by musicians performing at the D. History of the Contract Negotiations Between the Dupont Plaza. In 1979, members of one musical group Union and the Respondent Association asked to take their vacations all at the same time; this would necessitate the hotel's engaging a new group to In September 1961, Abraham Pena, who was president substitute for them. Their request was denied and instead of the Union from 1961 to 1977, approached the then they were required to take their vacations on an individ- president of the Respondent Association and requested ual basis with each member having to furnish a substitute that negotiations for a collective-bargaining agreement for himself during the period he was away. On February covering the musicians who work in hotels in Puerto 29, 1980, the food and service manager issued a memo- Rico which had gambling casinos should begin. His pro- randum setting forth "rules and regulations" for musi- posal was accepted. Pena had obtained from other AFM cians; these included instructions that the musicians list locals copies of agreements they had so that he could their repertoire which should be updated periodically, borrow some of the language from those agreements in that the musicians must not consume liquor "on premises the course of his negotiating meetings with the Respond- 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 performed at the Right Knight room." Respondent El while working," that they should follow the instructions San Juan Hotel called its president, its vice president for of the lounge manager and inform him of all changes, finance, its general manager, its personnel director, and lateness, new equipment, etc. One of the musical groups also accounting supervisors as witnesses. They testified played for over 4 years in one of the Dupont Plaza that the only instruction given the maitre d' as far as the lounges before the food and service manager shifted that musicians are concerned is to make sure that a musical group to perform at another lounge. group performs according to the contract between the A predecessor Class AA hotel, the Hyatt Puerto Rico, leader and the hotel, that each musical group is paid a issued nine rules in 1973 governing the conduct of its lump sum which is charged to accounts payable and not musicians-one of which provided for "immediate dis- to payroll, that the hotel's personnel department does not missal for ... intoxication." maintain any personnel file for any musician appearing at Another hotel, the Holiday Inn at Isla Verda, had the hotel whereas it does maintain such files for maids completed in March 1977, a questionnaire sent in by a and all of its other regular employees and that the musi- bank to verify "the employment" of the musician named cians do not have to comply with regulations established therein who was seeking a loan. In responding to the for the hotel's regular employees, e.g., those requiring questionnaire the hotel's personnel manager noted that employees to punch time cards. Its data processing man- prospects for that musician's continued employment at ager, when asked a preliminary question respecting the the hotel were good. He testified that he based this way "sidemen," i.e., the musicians, were paid, stated that answer o the fact that the term of the musicians con- they "get paid like the rest of the employees." tract was indefinite. In 1978, the personnel manager of 5. Other Class AA hotels th a t ho t e l w rote a letter on behalf of a musician in which he referred to the musician as an employee who works The complaints in these consolidated cases identify the for the hotel. The testimony of the Isla Verda's hotel Respondent Association and the six Class AA hotels dis- personnel manager was to the effect that a group of six cussed above as the actual Respondents. Testimony was musicians had played there for 7 years and that their adduced at the hearing respecting the operations of other leader is paid on a "lump sum" pursuant to his request. It Class AA hotels vis-a-vis the musicians in order to throw was not made clear whether that leader received an ad- further light on the employee versus independent con- vance on his contract or payment of the total of the re- tractor issue and as such evidence pertains to other spective weekly gross earnings of the musicians in his issues; e.g., the appropriateness of the unit. group or payment for the total of their respective weekly The food and service manager of the Dupont Plaza net earnings; i.e., after income, social security, and other Hotel, a Class AA hotel, testified that he selects musical taxes had been deducted by the hotel. groups by evaluating whether their style fits in with the The General Counsel called a witness who testified ambiance of the room to which he assigns the group. He that, in 1979, he had played in an orchestra in a Class prepares the working schedules for all musical groups of AA hotel, the Cerromar. While there, the musicians in that hotel. Each group normally performs as per the that orchestra had changed their uniform attire from a hours set in the contracts between the Respondent Asso- black jacket to rust colored jacket pursuant to the re- ciation and the Union; i.e., on a 6-day, 28-hour week quest of the hotel's manager and that the hotel paid for basis. The food and service manager at the Dupont Plaza those new "uniforms." On one occasion, the maitre d' of assigns these groups to perform in designated rooms or the room in which the orchestra played restricted the l o u n g es. On o ne o c c asio n , a le ad er o f a g r o u p in t h e musicians from smoking while near the bandstand. Parado 30 lounge used a female trumpet player who in^ Parao 30loune usd a emae trmpetplayr wh in A leader called by the General Counsel testified that the judgment of the food and service manager did not h g h b p a orado Beach Hotel dress appropriately for that lounge and who, in his judg- for 3 years, that the hotel's food and beverage manager ment, should be replaced by a saxophone player. He prepares the schedules as to hours and locations which spoke directly to the trumpet player about improving her afollowed by his group, that the maitre d' of the room appearance and advised the leader that he had 30 days to p p h improve the group's performance. When the trumpet t softer and that the maitre d' "might" let them go player's performance d id n o t improve, the group re- home early if the lounge is "empty." signed. The food and service manager approves all vaca- tion requests made by musicians performing at the D. History of the Contract Negotiations Between the Dupont Plaza. In 1979, members of one musical group Union and the Respondent Association asked to take their vacations all at the same time; this would necessitate the hotel's engaging a new group to In September 1961, Abraham Pena, who was president substitute for them. Their request was denied and instead of the Union from 1961 to 1977, approached the then they were required to take their vacations on an individ- president of the Respondent Association and requested ual basis with each member having to furnish a substitute that negotiations for a collective-bargaining agreement for himself during the period he was away. On February covering the musicians who work in hotels in Puerto 29, 1980, the food and service manager issued a memo- Rico which had gambling casinos should begin. His pro- randum setting forth "rules and regulations" for musi- posal was accepted. Pena had obtained from other AFM cians; these included instructions that the musicians list locals copies of agreements they had so that he could their repertoire which should be updated periodically, borrow some of the language from those agreements in that the musicians must not consume liquor "on premises the course of his negotiating meetings with the Respond- 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 performed at the Right Knight room." Respondent El while working," that they should follow the instructions San Juan Hotel called its president, its vice president for of the lounge manager and inform him of all changes, finance, its general manager, its personnel director, and lateness, new equipment, etc. One of the musical groups also accounting supervisors as witnesses. They testified played for over 4 years in one of the Dupont Plaza that the only instruction given the maitre d' as far as the lounges before the food and service manager shifted that musicians are concerned is to make sure that a musical group to perform at another lounge. group performs according to the contract between the A predecessor Class AA hotel, the Hyatt Puerto Rico, leader and the hotel, that each musical group is paid a issued nine rules in 1973 governing the conduct of its lump sum which is charged to accounts payable and not musicians-one of which provided for "immediate dis- to payroll, that the hotel's personnel department does not missal for ... intoxication." maintain any personnel file for any musician appearing at Another hotel, the Holiday Inn at Isla Verda, had the hotel whereas it does maintain such files for maids completed in March 1977, a questionnaire sent in by a and all of its other regular employees and that the musi- bank to verify "the employment" of the musician named cians do not have to comply with regulations established therein who was seeking a loan. In responding to the for the hotel's regular employees, e.g., those requiring questionnaire the hotel's personnel manager noted that employees to punch time cards. Its data processing man- prospects for that musician's continued employment at ager, when asked a preliminary question respecting the the hotel were good. He testified that he based this way "sidemen," i.e., the musicians, were paid, stated that answer on the fact that the term of the musicians con- they "get paid like the rest of the employees." tract was indefinite. In 1978, the personnel manager of 5. Other Class AA hotels th a t ho t e l w rote a letter on behalf of a musician in which he referred to the musician as an employee who works The complaints in these consolidated cases identify the for the hotel. The testimony of the Isla Verda's hotel Respondent Association and the six Class AA hotels dis- personnel manager was to the effect that a group of six cussed above as the actual Respondents. Testimony was musicians had played there for 7 years and that their adduced at the hearing respecting the operations of other leader is paid on a "lump sum" pursuant to his request. It Class AA hotels vis-a-vis the musicians in order to throw was not made clear whether that leader received an ad- further light on the employee versus independent con- vance on his contract or payment of the total of the re- tractor issue and as such evidence pertains to other spective weekly gross earnings of the musicians in his issues; e.g., the appropriateness of the unit. group or payment for the total of their respective weekly The food and service manager of the Dupont Plaza net earnings; i.e., after income, social security, and other Hotel, a Class AA hotel, testified that he selects musical taxes had been deducted by the hotel. groups by evaluating whether their style fits in with the The General Counsel called a witness who testified ambiance of the room to which he assigns the group. He that, in 1979, he had played in an orchestra in a Class prepares the working schedules for all musical groups of AA hotel, the Cerromar. While there, the musicians in that hotel. Each group normally performs as per the that orchestra had changed their uniform attire from a hours set in the contracts between the Respondent Asso- black jacket to rust colored jacket pursuant to the re- ciation and the Union; i.e., on a 6-day, 28-hour week quest of the hotel's manager and that the hotel paid for basis. The food and service manager at the Dupont Plaza those new "uniforms." On one occasion, the maitre d' of assigns these groups to perform in designated rooms or the room in which the orchestra played restricted the l o u n g es. On o ne o c c asio n , a le ad er o f a g r o u p in t h e musicians from smoking while near the bandstand. Parado 30 lounge used a female trumpet player who in^ Parao 30loune usd a emae trmpetplayr wh in A leader called by the General Counsel testified that the judgment of the food and service manager did not h g h b p a orado Beach Hotel dress appropriately for that lounge and who, in his judg- for 3 years, that the hotel's food and beverage manager ment, should be replaced by a saxophone player. He prepares the schedules as to hours and locations which spoke directly to the trumpet player about improving her afollowed by his group, that the maitre d' of the room appearance and advised the leader that he had 30 days to p p h improve the group's performance. When the trumpet t softer and that the maitre d' "might" let them go player's performance d id n o t improve, the group re- home early if the lounge is "empty." signed. The food and service manager approves all vaca- tion requests made by musicians performing at the D. History of the Contract Negotiations Between the Dupont Plaza. In 1979, members of one musical group Union and the Respondent Association asked to take their vacations all at the same time; this would necessitate the hotel's engaging a new group to In September 1961, Abraham Pena, who was president substitute for them. Their request was denied and instead of the Union from 1961 to 1977, approached the then they were required to take their vacations on an individ- president of the Respondent Association and requested ual basis with each member having to furnish a substitute that negotiations for a collective-bargaining agreement for himself during the period he was away. On February covering the musicians who work in hotels in Puerto 29, 1980, the food and service manager issued a memo- Rico which had gambling casinos should begin. His pro- randum setting forth "rules and regulations" for musi- posal was accepted. Pena had obtained from other AFM cians; these included instructions that the musicians list locals copies of agreements they had so that he could their repertoire which should be updated periodically, borrow some of the language from those agreements in that the musicians must not consume liquor "on premises the course of his negotiating meetings with the Respond- 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 performed at the Right Knight room." Respondent El while working," that they should follow the instructions San Juan Hotel called its president, its vice president for of the lounge manager and inform him of all changes, finance, its general manager, its personnel director, and lateness, new equipment, etc. One of the musical groups also accounting supervisors as witnesses. They testified played for over 4 years in one of the Dupont Plaza that the only instruction given the maitre d' as far as the lounges before the food and service manager shifted that musicians are concerned is to make sure that a musical group to perform at another lounge. group performs according to the contract between the A predecessor Class AA hotel, the Hyatt Puerto Rico, leader and the hotel, that each musical group is paid a issued nine rules in 1973 governing the conduct of its lump sum which is charged to accounts payable and not musicians-one of which provided for "immediate dis- to payroll, that the hotel's personnel department does not missal for ... intoxication." maintain any personnel file for any musician appearing at Another hotel, the Holiday Inn at Isla Verda, had the hotel whereas it does maintain such files for maids completed in March 1977, a questionnaire sent in by a and all of its other regular employees and that the musi- bank to verify "the employment" of the musician named cians do not have to comply with regulations established therein who was seeking a loan. In responding to the for the hotel's regular employees, e.g., those requiring questionnaire the hotel's personnel manager noted that employees to punch time cards. Its data processing man- prospects for that musician's continued employment at ager, when asked a preliminary question respecting the the hotel were good. He testified that he based this way "sidemen," i.e., the musicians, were paid, stated that answer on the fact that the term of the musicians con- they "get paid like the rest of the employees." tract was indefinite. In 1978, the personnel manager of 5. Other Class AA hotels th a t ho t e l w rote a letter on behalf of a musician in which he referred to the musician as an employee who works The complaints in these consolidated cases identify the for the hotel. The testimony of the Isla Verda's hotel Respondent Association and the six Class AA hotels dis- personnel manager was to the effect that a group of six cussed above as the actual Respondents. Testimony was musicians had played there for 7 years and that their adduced at the hearing respecting the operations of other leader is paid on a "lump sum" pursuant to his request. It Class AA hotels vis-a-vis the musicians in order to throw was not made clear whether that leader received an ad- further light on the employee versus independent con- vance on his contract or payment of the total of the re- tractor issue and as such evidence pertains to other spective weekly gross earnings of the musicians in his issues; e.g., the appropriateness of the unit. group or payment for the total of their respective weekly The food and service manager of the Dupont Plaza net earnings; i.e., after income, social security, and other Hotel, a Class AA hotel, testified that he selects musical taxes had been deducted by the hotel. groups by evaluating whether their style fits in with the The General Counsel called a witness who testified ambiance of the room to which he assigns the group. He that, in 1979, he had played in an orchestra in a Class prepares the working schedules for all musical groups of AA hotel, the Cerromar. While there, the musicians in that hotel. Each group normally performs as per the that orchestra had changed their uniform attire from a hours set in the contracts between the Respondent Asso- black jacket to rust colored jacket pursuant to the re- ciation and the Union; i.e., on a 6-day, 28-hour week quest of the hotel's manager and that the hotel paid for basis. The food and service manager at the Dupont Plaza those new "uniforms." On one occasion, the maitre d' of assigns these groups to perform in designated rooms or the room in which the orchestra played restricted the l o u n g es. On o ne o c c asio n , a le ad er o f a g r o u p in t h e musicians from smoking while near the bandstand. Parado 30 lounge used a female trumpet player who in^ Parao 30loune usd a emae trmpetplayr wh in A leader called by the General Counsel testified that the judgment of the food and service manager did not h g h b p a orado Beach Hotel dress appropriately for that lounge and who, in his judg- for 3 years, that the hotel's food and beverage manager ment, should be replaced by a saxophone player. He prepares the schedules as to hours and locations which spoke directly to the trumpet player about improving her afollowed by his group, that the maitre d' of the room appearance and advised the leader that he had 30 days to p p h improve the group's performance. When the trumpet t softer and that the maitre d' "might" let them go player's performance d id n o t improve, the group re- home early if the lounge is "empty." signed. The food and service manager approves all vaca- tion requests made by musicians performing at the D. History of the Contract Negotiations Between the Dupont Plaza. In 1979, members of one musical group Union and the Respondent Association asked to take their vacations all at the same time; this would necessitate the hotel's engaging a new group to In September 1961, Abraham Pena, who was president substitute for them. Their request was denied and instead of the Union from 1961 to 1977, approached the then they were required to take their vacations on an individ- president of the Respondent Association and requested ual basis with each member having to furnish a substitute that negotiations for a collective-bargaining agreement for himself during the period he was away. On February covering the musicians who work in hotels in Puerto 29, 1980, the food and service manager issued a memo- Rico which had gambling casinos should begin. His pro- randum setting forth "rules and regulations" for musi- posal was accepted. Pena had obtained from other AFM cians; these included instructions that the musicians list locals copies of agreements they had so that he could their repertoire which should be updated periodically, borrow some of the language from those agreements in that the musicians must not consume liquor "on premises the course of his negotiating meetings with the Respond- PUERTO RICO HOTEL ASSOCIATION 437 ent Association. The first such meetings took place in (b) the hotels to keep a minimum number of local musi- 1961. They were attended by representatives from each cians under contract as set out in schedule B therein, (c) of the hotels plus four or five lawyers as their respective that the Union's constitution and bylaws and those of its counsel. Agreement was reached and the agreement was International were incorporated into the agreement to be apparently reduced to writing; however, neither the extent permitted by law, and (d) that the agreement shall original of the 1961 agreement nor a copy of it is now in be in effect from December 1, 1967-November 30, 1971. existence. The agreement was signed by the respective presidents A new round of negotiations took place in 1964. By of the Union and of the Respondent Association; officers then three new hotels with casinos (Ponce de Leon, of each of the hotels signed copies of the agreement to Sheridan, and the Americana) had opened. Pena testified verify that they "ratified" it. Schedule A, annexed to that the representatives of the Respondent Association that contract, provided inter alia, that nothing therein made it clear that it was representing in those negotia- shall prohibit "any" (AFM) members from contracting tions all the hotels which had casinos. Another 3-year for a higher price, that members must receive at least 20 agreement was reached on December 19, 1964, to be ef- minutes rest per hour, that an orchestra's day off may fective from December 1, 1964, to November 30, 1967. not be changed without the Union's consent, that musi- Copies of schedules A and B referred to therein were cians must be paid for rehearsals called by the hotels, not located; it appears that they were similar to sched- that a musician who plays more than one instrument in ules A and B annexed to the 1967-70 contract, discussed an orchestra shall receive additional payment therefor in detail below. The 1964-67 contract contained a recog- (this is termed a doubling charge) that the musicians nition clause which stated that "the hotels recognized the s b shall be served hot meals by the hotel and shall receive [Union] as the exclusive collective bargaining representa- vacation pay as specified therein, that each hotel shall tives of all musicians employed by the hotels." There make contributions to the AFM pension welfare fund were 13 hotels5 referred to therein as "employers of mu- sicians." and that each hotel shall provide an air-conditioned A copy of the written contract for the period 1967-70 room for useby musicians during intermissions. The was received in evidence. It recites that it is the collec- minimum wage scale in the 1967 contract provided that tive-bargaining agreement between the Union and the a musician in the first year would receive $114 for a 6- Respondent Association, bargaining for all its members day week consisting of 28 hours of performing, that the listed therein; i.e., Caribe Hilton, Puerto Rico Hilton, leader of the musical group would receive double that San Jeronimo Hilton, La Concha, Condado Beach, amount, that overtime would be paid at the rate of $6 an Americana, El Flamboyan, El San Juan, Dorado Beach, hour and rehearsals at the rate of $4.05 an hour. Each Conquistador, Dorado Hilton, Miramar Hilton, and year thereafter under the contract, the weekly minimum Ponce International. The agreement provided that it was was raised $6 so that in 1971 a musician received a mini- to be applicable "to the classifications of employees listed mum of $132 for a week. in . . . attached . . . Schedule (A) and also to conduc- In 1967, a disagreement arose respecting the applica- tors, featured instrumental musicians and orchestras em- tion of the vacation clause in the agreement. On behalf ployed within the premises of the hotel whose services of the Union, Pena wrote a letter to the hotels indicating are rendered in connection with entertainment and danc- that they must schedule vacations for each group of mu- ing, under the supervision of the hotel's executives man- sicians so that the whole group would be off during the aging its facilities," all of whom were referred to therein same period and that the hotels were not to schedule va- collectively as "musicians." Schedule A annexed to that cations for musicians on an individual basis. The presi- agreement contained "wage scales, hours of employment dent then of the Respondent Association, Roberto Lugo, and working conditions" for the steady engagement of wrote Pena that he was writing on behalf of all hotels musicians. By the terms of the 1967-70 agreement the and objected to the attempt by the Union to interfere hotels recognized the Union as the exclusive bargaining with a matter "obviously . . . within the scope of the representative of all musicians within the hotels. This management prerogative" and to the Union's effort to language is different from the language of the recogni- unilaterally amend the agreed-upon contract language. tion clause in the previous contract. The then president Lugo further related that he had told the Union that be- of the Respondent Association testified that he proposed cause of their "operational needs," hotels desired to the change as he did not want the musicians to be char- "retain the flexibility to grant vacations to musicians as acterized therein as employees of the hotels. He stated they see fit." Lugo concluded his letter to the Union by that the Union's president, Pena, did not care which way stating that the Respondent Association considered the contract read, apparently because the change did not Pena's letter to the hotels as "void." in Pena's view, interfere with his ability to represent the Aside from few areas of minor disagreements such as musicians. Other relevant provisions of that 1967-70 con- that pertaining to the schedule of vacations, the relations tract required (a) the hotels to make appropriate deduc- between the Union and the Respondent Association until tions in payments of social security taxes and unemploy- most recently were characterized by witnesses for the ment contributions to the pertinent government agencies, General Counsel and also for the Respondent Associ- ation as harmonious. Caribe Hilton, El San Juan, La Concha, Condado Beach, Americana On December 15, 1971, a renewal contract from De- of San Juan, San Jeronimo Hilton, Puerto Rico Sheridan, El Convento, El Flamboyan, Dorado Beach, Dorado Hilton. Miramar Hilton, and cember 1971 to November 20, 1975, was signed by the Ponce International. Union and the Respondent Association. The form and PUERTO RICO HOTEL ASSOCIATION 437 ent Association. The first such meetings took place in (b) the hotels to keep a minimum number of local musi- 1961. They were attended by representatives from each cians under contract as set out in schedule B therein, (c) of the hotels plus four or five lawyers as their respective that the Union's constitution and bylaws and those of its counsel. Agreement was reached and the agreement was International were incorporated into the agreement to be apparently reduced to writing; however, neither the extent permitted by law, and (d) that the agreement shall original of the 1961 agreement nor a copy of it is now in be in effect from December 1, 1967-November 30, 1971. existence. The agreement was signed by the respective presidents A new round of negotiations took place in 1964. By of the Union and of the Respondent Association; officers then three new hotels with casinos (Ponce de Leon, of each of the hotels signed copies of the agreement to Sheridan, and the Americana) had opened. Pena testified verify that they "ratified" it. Schedule A, annexed to that the representatives of the Respondent Association that contract, provided inter alia. that nothing therein made it clear that it was representing in those negotia- shall prohibit "any" (AFM) members from contracting tions all the hotels which had casinos. Another 3-year for a higher price, that members must receive at least 20 agreement was reached on December 19. 1964, to be ef- minutes rest per hour, that an orchestra's day off may fective from December 1, 1964, to November 30, 1967. not be changed without the Union's consent, that musi- Copies of schedules A and B referred to therein were cians must be paid for rehearsals called by the hotels, not located; it appears that they were similar to sched- that a musician who plays more than one instrument in ules A and B annexed to the 1967-70 contract, discussed a orchestra shall receive additional payment therefor in detail below. The 1964-67 contract contained a recog- (is is termed a doubling charge), that the musicians nition clause which stated that "the hotels recognized the s be s ho m b h otel and shall receive [Union] as the exclusive collective bargaining representa-p t t e tives of all musicians employed by the hotels." Therecontributions to the AFM pension welfare fund were 13 hotels6 referred to therein as "employers of mu- adta ahhtlsalpoiea i-odtoe sicians." roye fof useh by muiin provide an air-conditioned A copy of the written contract for the period 1967-70 m ro o m f o r u se a musicians during intermissionsv The was received in evidence. It recites that it is the collec- a musii wage scale in the 1967 contract provided that tive-bargaining agreement between the Union and the a m u sician *" the first year would receive $114 for a 6- Respondent Association, bargaining for all its members day w ee k consisting of 28 hours of performing, that the listed therein; i.e., Caribe Hilton, Puerto Rico Hilton, lea d er o f t he m usical group would receive double that San Jeronimo Hilton, La Concha, Condado Beach, amount, that overtime would be paid at the rate of $6 an Americana, El Flamboyan, El San Juan, Dorado Beach, hour a nd rehearsals at the rate of $4.05 an hour. Each Conquistador, Dorado Hilton, Miramar Hilton, and year thereafter under the contract, the weekly minimum Ponce International. The agreement provided that it was w as raised $6 so that in 1971 a musician received a mini- to be applicable "to the classifications of employees listed m u m of $132 for a week. in ... attached . . . Schedule (A) and also to conduc- In 1967, a disagreement arose respecting the applica- tors, featured instrumental musicians and orchestras em- tion of the vacation clause in the agreement. On behalf ployed within the premises of the hotel whose services of the Union, Pena wrote a letter to the hotels indicating are rendered in connection with entertainment and danc- that they must schedule vacations for each group of mu- ing, under the supervision of the hotel's executives man- sicians so that the whole group would be off during the aging its facilities," all of whom were referred to therein same period and that the hotels were not to schedule va- collectively as "musicians." Schedule A annexed to that cations for musicians on an individual basis. The presi- agreement contained "wage scales, hours of employment dent then of the Respondent Association, Roberto Lugo, and working conditions" for the steady engagement of wrote Pena that he was writing on behalf of all hotels musicians. By the terms of the 1967-70 agreement the and objected to the attempt by the Union to interfere hotels recognized the Union as the exclusive bargaining with a matter "obviously . . . within the scope of the representative of all musicians within the hotels. This management prerogative" and to the Union's effort to language is different from the language of the recogni- unilaterally amend the agreed-upon contract language. tion clause in the previous contract. The then president Lugo further related that he had told the Union that be- of the Respondent Association testified that he proposed cause of their "operational needs," hotels desired to the change as he did not want the musicians to be char- "retain the flexibility to grant vacations to musicians as acterized therein as employees of the hotels. He stated they see fit." Lugo concluded his letter to the Union by that the Union's president, Pena, did not care which way stating that the Respondent Association considered the contract read, apparently because the change did not Pena's letter to the hotels as "void." in Pena's view, interfere with his ability to represent the Aside from few areas of minor disagreements such as musicians. Other relevant provisions of that 1967-70 con- that pertaining to the schedule of vacations, the relations tract required (a) the hotels to make appropriate deduc- between the Union and the Respondent Association until tions in payments of social security taxes and unemploy- most recently were characterized by witnesses for the ment contributions to the pertinent government agencies, General Counsel and also for the Respondent Associ- ation as harmonious. Caribe Hilton, El San Juan, La Concha, Condado Beach, Americana On December 15, 1971, a renewal contract from De- of San Juan, San Jeronimo Hilton, Puerto Rico Sheridan, El Convento, El Flamboyan, Dorado Beach. Dorado Hilton, Miramar Hilton, and cember 1971 to November 20, 1975, was signed by the Ponce International. Union and the Respondent Association. The form and PUERTO RICO HOTEL ASSOCIATION 437 ent Association. The first such meetings took place in (b) the hotels to keep a minimum number of local musi- 1961. They were attended by representatives from each cians under contract as set out in schedule B therein, (c) of the hotels plus four or five lawyers as their respective that the Union's constitution and bylaws and those of its counsel. Agreement was reached and the agreement was International were incorporated into the agreement to be apparently reduced to writing; however, neither the extent permitted by law, and (d) that the agreement shall original of the 1961 agreement nor a copy of it is now in be in effect from December 1, 1967-November 30, 1971. existence. The agreement was signed by the respective presidents A new round of negotiations took place in 1964. By of the Union and of the Respondent Association; officers then three new hotels with casinos (Ponce de Leon, of each of the hotels signed copies of the agreement to Sheridan, and the Americana) had opened. Pena testified verify that they "ratified" it. Schedule A, annexed to that the representatives of the Respondent Association that contract, provided inter alia. that nothing therein made it clear that it was representing in those negotia- shall prohibit "any" (AFM) members from contracting tions all the hotels which had casinos. Another 3-year for a higher price, that members must receive at least 20 agreement was reached on December 19. 1964, to be ef- minutes rest per hour, that an orchestra's day off may fective from December 1, 1964, to November 30, 1967. not be changed without the Union's consent, that musi- Copies of schedules A and B referred to therein were cians must be paid for rehearsals called by the hotels, not located; it appears that they were similar to sched- that a musician who plays more than one instrument in ules A and B annexed to the 1967-70 contract, discussed a orchestra shall receive additional payment therefor in detail below. The 1964-67 contract contained a recog- (is is termed a doubling charge), that the musicians nition clause which stated that "the hotels recognized the s be s ho m b h otel and shall receive [Union] as the exclusive collective bargaining representa-p t t e tives of all musicians employed by the hotels." Therecontributions to the AFM pension welfare fund were 13 hotels6 referred to therein as "employers of mu- adta ahhtlsalpoiea i-odtoe sicians." roye fof useh by muiin provide an air-conditioned A copy of the written contract for the period 1967-70 m ro o m f o r u se a musicians during intermissionsv The was received in evidence. It recites that it is the collec- a musii wage scale in the 1967 contract provided that tive-bargaining agreement between the Union and the a m u sician *" the first year would receive $114 for a 6- Respondent Association, bargaining for all its members day w ee k consisting of 28 hours of performing, that the listed therein; i.e., Caribe Hilton, Puerto Rico Hilton, lea d er o f t he m usical group would receive double that San Jeronimo Hilton, La Concha, Condado Beach, amount, that overtime would be paid at the rate of $6 an Americana, El Flamboyan, El San Juan, Dorado Beach, hour a nd rehearsals at the rate of $4.05 an hour. Each Conquistador, Dorado Hilton, Miramar Hilton, and year thereafter under the contract, the weekly minimum Ponce International. The agreement provided that it was w as raised $6 so that in 1971 a musician received a mini- to be applicable "to the classifications of employees listed m u m of $132 for a week. in ... attached . . . Schedule (A) and also to conduc- In 1967, a disagreement arose respecting the applica- tors, featured instrumental musicians and orchestras em- tion of the vacation clause in the agreement. On behalf ployed within the premises of the hotel whose services of the Union, Pena wrote a letter to the hotels indicating are rendered in connection with entertainment and danc- that they must schedule vacations for each group of mu- ing, under the supervision of the hotel's executives man- sicians so that the whole group would be off during the aging its facilities," all of whom were referred to therein same period and that the hotels were not to schedule va- collectively as "musicians." Schedule A annexed to that cations for musicians on an individual basis. The presi- agreement contained "wage scales, hours of employment dent then of the Respondent Association, Roberto Lugo, and working conditions" for the steady engagement of wrote Pena that he was writing on behalf of all hotels musicians. By the terms of the 1967-70 agreement the and objected to the attempt by the Union to interfere hotels recognized the Union as the exclusive bargaining with a matter "obviously . . . within the scope of the representative of all musicians within the hotels. This management prerogative" and to the Union's effort to language is different from the language of the recogni- unilaterally amend the agreed-upon contract language. tion clause in the previous contract. The then president Lugo further related that he had told the Union that be- of the Respondent Association testified that he proposed cause of their "operational needs," hotels desired to the change as he did not want the musicians to be char- "retain the flexibility to grant vacations to musicians as acterized therein as employees of the hotels. He stated they see fit." Lugo concluded his letter to the Union by that the Union's president, Pena, did not care which way stating that the Respondent Association considered the contract read, apparently because the change did not Pena's letter to the hotels as "void." in Pena's view, interfere with his ability to represent the Aside from few areas of minor disagreements such as musicians. Other relevant provisions of that 1967-70 con- that pertaining to the schedule of vacations, the relations tract required (a) the hotels to make appropriate deduc- between the Union and the Respondent Association until tions in payments of social security taxes and unemploy- most recently were characterized by witnesses for the ment contributions to the pertinent government agencies, General Counsel and also for the Respondent Associ- ation as harmonious. Caribe Hilton, El San Juan, La Concha, Condado Beach, Americana On December 15, 1971, a renewal contract from De- of San Juan, San Jeronimo Hilton, Puerto Rico Sheridan, El Convento, El Flamboyan, Dorado Beach. Dorado Hilton, Miramar Hilton, and cember 1971 to November 20, 1975, was signed by the Ponce International. Union and the Respondent Association. The form and PUERTO RICO HOTEL ASSOCIATION 437 ent Association. The first such meetings took place in (b) the hotels to keep a minimum number of local musi- 1961. They were attended by representatives from each cians under contract as set out in schedule B therein, (c) of the hotels plus four or five lawyers as their respective that the Union's constitution and bylaws and those of its counsel. Agreement was reached and the agreement was International were incorporated into the agreement to be apparently reduced to writing; however, neither the extent permitted by law, and (d) that the agreement shall original of the 1961 agreement nor a copy of it is now in be in effect from December 1, 1967-November 30, 1971. existence. The agreement was signed by the respective presidents A new round of negotiations took place in 1964. By of the Union and of the Respondent Association; officers then three new hotels with casinos (Ponce de Leon, of each of the hotels signed copies of the agreement to Sheridan, and the Americana) had opened. Pena testified verify that they "ratified" it. Schedule A, annexed to that the representatives of the Respondent Association that contract, provided inter alia. that nothing therein made it clear that it was representing in those negotia- shall prohibit "any" (AFM) members from contracting tions all the hotels which had casinos. Another 3-year for a higher price, that members must receive at least 20 agreement was reached on December 19. 1964, to be ef- minutes rest per hour, that an orchestra's day off may fective from December 1, 1964, to November 30, 1967. not be changed without the Union's consent, that musi- Copies of schedules A and B referred to therein were cians must be paid for rehearsals called by the hotels, not located; it appears that they were similar to sched- that a musician who plays more than one instrument in ules A and B annexed to the 1967-70 contract, discussed a orchestra shall receive additional payment therefor in detail below. The 1964-67 contract contained a recog- (is is termed a doubling charge), that the musicians nition clause which stated that "the hotels recognized the s be s ho m b h otel and shall receive [Union] as the exclusive collective bargaining representa-p t t e tives of all musicians employed by the hotels." Therecontributions to the AFM pension welfare fund were 13 hotels6 referred to therein as "employers of mu- adta ahhtlsalpoiea i-odtoe sicians." roye fof useh by muiin provide an air-conditioned A copy of the written contract for the period 1967-70 m ro o m f o r u se a musicians during intermissionsv The was received in evidence. It recites that it is the collec- a musii wage scale in the 1967 contract provided that tive-bargaining agreement between the Union and the a m u sician *" the first year would receive $114 for a 6- Respondent Association, bargaining for all its members day w eek consisting of 28 hours of performing, that the listed therein; i.e., Caribe Hilton, Puerto Rico Hilton, lea d er o f t he musical group would receive double that San Jeronimo Hilton, La Concha, Condado Beach, amount, that overtime would be paid at the rate of $6 an Americana, El Flamboyan, El San Juan, Dorado Beach, hour a nd rehearsals at the rate of $4.05 an hour. Each Conquistador, Dorado Hilton, Miramar Hilton, and year thereafter under the contract, the weekly minimum Ponce International. The agreement provided that it was w as raised $6 so that in 1971 a musician received a mini- to be applicable "to the classifications of employees listed m u m of $132 for a week. in ... attached . . . Schedule (A) and also to conduc- In 1967, a disagreement arose respecting the applica- tors, featured instrumental musicians and orchestras em- tion of the vacation clause in the agreement. On behalf ployed within the premises of the hotel whose services of the Union, Pena wrote a letter to the hotels indicating are rendered in connection with entertainment and danc- that they must schedule vacations for each group of mu- ing, under the supervision of the hotel's executives man- sicians so that the whole group would be off during the aging its facilities," all of whom were referred to therein same period and that the hotels were not to schedule va- collectively as "musicians." Schedule A annexed to that cations for musicians on an individual basis. The presi- agreement contained "wage scales, hours of employment dent then of the Respondent Association, Roberto Lugo, and working conditions" for the steady engagement of wrote Pena that he was writing on behalf of all hotels musicians. By the terms of the 1967-70 agreement the and objected to the attempt by the Union to interfere hotels recognized the Union as the exclusive bargaining with a matter "obviously . . . within the scope of the representative of all musicians within the hotels. This management prerogative" and to the Union's effort to language is different from the language of the recogni- unilaterally amend the agreed-upon contract language. tion clause in the previous contract. The then president Lugo further related that he had told the Union that be- of the Respondent Association testified that he proposed cause of their "operational needs," hotels desired to the change as he did not want the musicians to be char- "retain the flexibility to grant vacations to musicians as acterized therein as employees of the hotels. He stated they see fit." Lugo concluded his letter to the Union by that the Union's president, Pena, did not care which way stating that the Respondent Association considered the contract read, apparently because the change did not Pena's letter to the hotels as "void." in Pena's view, interfere with his ability to represent the Aside from few areas of minor disagreements such as musicians. Other relevant provisions of that 1967-70 con- that pertaining to the schedule of vacations, the relations tract required (a) the hotels to make appropriate deduc- between the Union and the Respondent Association until tions in payments of social security taxes and unemploy- most recently were characterized by witnesses for the ment contributions to the pertinent government agencies, General Counsel and also for the Respondent Associ- ation as harmonious. Caribe Hilton, El San Juan, La Concha, Condado Beach, Americana On December 15, 1971, a renewal contract from De- of San Juan, San Jeronimo Hilton, Puerto Rico Sheridan, El Convento, El Flamboyan, Dorado Beach. Dorado Hilton, Miramar Hilton, and cember 1971 to November 20, 1975, was signed by the Ponce International. Union and the Respondent Association. The form and 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contents of that contract closely parallel the prior agree- By 1977, union membership had numbered about ments; "the minimum wage" scale as of the last year of 2,700; however, only about 125 of these worked in the the 1971-75 contract was $202 for each musician for the Class AA hotels. Of the Union's overall membership, standard 6-day, 28-hour workweek. Another 3-year con- only 25 percent performed on a full-time basis, that is, in tract for the period December 1, 1975, to November 30, symphony orchestras, on a single-engagement basis, or in 1978, was reached on January 27, 1976. The law firm hotels. The great majority of the Union's members per- which represented the Respondent Association at the form on a part-time basis. All professional musicians in hearing made its first appearance as its representative Puerto Rico had been until sometime in 1979 members of when it participated in the bargaining that gave rise to the Union for one or all of the following reasons: (a) it that contract. The format and contents were substantially was the accepted wisdom that a performer had to belong the same as those of the prior contracts except for the to the Union in order to work, (b) it was necessary in minimum wage rates. The member hotels as listed there- order to promote the status of professional musicians' at- in were the Americana, Caribe Hilton, Condado Holiday tempts to upgrade their profession, and (c) union mem- Inn, El San Juan, Hyatt Puerto Rico, Puerto Rico Sheri- bership was essential to enhance the status of the Puerto dan, Cerromar, Dorado Beach, and El Conquistador. In Rican musician especially in relation to the professional this contract, the musicians received an additional holi- musician coming from the mainland. In actual practice, it day-San Juan Bautista Day Eve. The scale for musi- appears that no one gave much thought to the reason for cians in 1978 was $238. That 1975-78 agreement stated joining the Union. It seems that, if a musician were ac- that the hotels retain the sole authority to change orches- cepted by his peers as a professional, he was readily ad- tra personnel in case of misconduct. mitted to union membership and was thus assured of A new contract was signed in 1979. There is a dispute, being paid "scale" whenever he played. inter alia, as to whether that signed contract reflects ac- In the course of the hearing, the parties alluded regu- curately the terms actually agreed upon in the negotia- larly to the "Pat Mills" case. That case is discussed in tions. Nevertheless the signed contract effective by its detail below. It appears that it was the result of that case terms from April 1979 for a 3-year period closely tracts that the Union, on advice of its International's counsel, prior agreements. The current contract is captioned decided to press in the course of the most recent con- "Agreement" and not "Collective Bargaining Agree- tract negotiations to have the local musicians declared to ment" as were the prior contracts; "wage rates" are now be employees of the hotels and that this declaration was termed "compensation scales." The current contract no to be expressly incorporated into the contract. longer simply states that the hotels shall make the appro- A brief look at the Pat Mills case will help put those priate deductions (from the earnings of the musicians) negotiations in better perspective. Based on a secondary and remit the required payments to the pertinent govern- boycott charge filed by Pat Mills doing business as Pat ment agencies as before. Instead it provides that the Mills and Company, a complaint had issued against the hotels are now doing these things "on behalf of the band Union. The hearing was held in December 1978. The conductors." The current contract contains a grievance- Board issued its decision on December 5, 1979. The de- arbitration clause. Schedules A and B annexed thereto cision indicates that in July 1978 the El San Juan Hotel are similar in format to the schedules annexed to the ear- contracted, through a booking agent in New York City, lier agreements. For example, both provide for a 20- to bring down to perform in the El San Juan Hotel Pat minute rest each hour for the musicians. The doubling Mills and Company for a 4-week engagement. That charge has been increased to $5; another holiday was group consisted of Pat Mills, her husband, and five other added as was a sick leave clause, termed an "incentive musicians and a lighting operator and was nonunion. At clause." The "scale" for musicians was increased to $248 the hearing in the instant case, the General Counsel re- and will be $282 in 1981. ferred to the Pat Mills group as "travelers" who are not E. Background to the 1979 Negotiations covered by the collective-bargaining agreement between the Union and the Respondent Association. At the hear- In the 1960's, the number of Class AA hotels in Puerto ing in the Pat Mills case, the General Counsel contended Rico grew and reached a climax around 1970. In the that Pat Mills and her husband were self-employed per- 1970's, some of these Class AA hotels closed, others sons under Section 2(6) and (7) and Section 8 of the Act. were taken over by an agency of the Commonwealth of Based on the uncontroverted testimony of Pat Mills at Puerto Rico, and others were consolidated. Still others the hearing in that case that she and her husband were were sold to new management. Other changes were individual proprietors with an office in West Nyack, made. Thus, Condado Holiday Inn no longer imported New York, and that they provide musical services out- highly paid entertainers to attract guests but found it side the State of New York in excess of $50,000 a year, more productive to provide a more informal atmosphere they were found to be self-employed. The Union had in its entertainment functions. It has done away with its argued in that case that its threat to strike the El San 10-piece orchestra and now has numerous musical groups Juan Hotel was aimed at a lawful object, that is, the playing in its rooms in an effort to attract a stable local preservation of unit work. Administrative Law Judge following. The El San Juan Hotel still uses headliners Plaine held, however, that its real object was to force from the mainland as attractions but the accompaniment Pat Mills and others in her company to join the Union's for those entertainers is now taped. The El San Juan no longer uses the standard 10-piece orchestra. '246 NLRB 129 (1980). 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contents of that contract closely parallel the prior agree- By 1977, union membership had numbered about ments; "the minimum wage" scale as of the last year of 2,700; however, only about 125 of these worked in the the 1971-75 contract was $202 for each musician for the Class AA hotels. Of the Union's overall membership, standard 6-day, 28-hour workweek. Another 3-year con- only 25 percent performed on a full-time basis, that is, in tract for the period December 1, 1975, to November 30, symphony orchestras, on a single-engagement basis, or in 1978, was reached on January 27, 1976. The law firm hotels. The great majority of the Union's members per- which represented the Respondent Association at the form on a part-time basis. All professional musicians in hearing made its first appearance as its representative Puerto Rico had been until sometime in 1979 members of when it participated in the bargaining that gave rise to the Union for one or all of the following reasons: (a) it that contract. The format and contents were substantially was the accepted wisdom that a performer had to belong the same as those of the prior contracts except for the to the Union in order to work, (b) it was necessary in minimum wage rates. The member hotels as listed there- order to promote the status of professional musicians' at- in were the Americana, Caribe Hilton, Condado Holiday tempts to upgrade their profession, and (c) union mem- Inn, El San Juan, Hyatt Puerto Rico, Puerto Rico Sheri- bership was essential to enhance the status of the Puerto dan, Cerromar, Dorado Beach, and El Conquistador. In Rican musician especially in relation to the professional this contract, the musicians received an additional holi- musician coming from the mainland. In actual practice, it day-San Juan Bautista Day Eve. The scale for musi- appears that no one gave much thought to the reason for cians in 1978 was $238. That 1975-78 agreement stated joining the Union. It seems that, if a musician were ac- that the hotels retain the sole authority to change orches- cepted by his peers as a professional, he was readily ad- tra personnel in case of misconduct. mitted to union membership and was thus assured of A new contract was signed in 1979. There is a dispute, being paid "scale" whenever he played. inter alia, as to whether that signed contract reflects ac- In the course of the hearing, the parties alluded regu- curately the terms actually agreed upon in the negotia- larly to the "Pat Mills" case. That case is discussed in tions. Nevertheless the signed contract effective by its detail below. It appears that it was the result of that case terms from April 1979 for a 3-year period closely tracts that the Union, on advice of its International's counsel, prior agreements. The current contract is captioned decided to press in the course of the most recent con- "Agreement" and not "Collective Bargaining Agree- tract negotiations to have the local musicians declared to ment" as were the prior contracts; "wage rates" are now be employees of the hotels and that this declaration was termed "compensation scales." The current contract no to be expressly incorporated into the contract. longer simply states that the hotels shall make the appro- A brief look at the Pat Mills case will help put those priate deductions (from the earnings of the musicians) negotiations in better perspective. Based on a secondary and remit the required payments to the pertinent govern- boycott charge filed by Pat Mills doing business as Pat ment agencies as before. Instead it provides that the Mills and Company, a complaint had issued against the hotels are now doing these things "on behalf of the band Union. The hearing was held in December 1978. The conductors." The current contract contains a grievance- Board issued its decision on December 5, 1979.' The de- arbitration clause. Schedules A and B annexed thereto cision indicates that in July 1978 the El San Juan Hotel are similar in format to the schedules annexed to the ear- contracted, through a booking agent in New York City, lier agreements. For example, both provide for a 20- to bring down to perform in the El San Juan Hotel Pat minute rest each hour for the musicians. The doubling Mills and Company for a 4-week engagement. That charge has been increased to $5; another holiday was group consisted of Pat Mills, her husband, and five other added as was a sick leave clause, termed an "incentive musicians and a lighting operator and was nonunion. At clause." The "scale" for musicians was increased to $248 the hearing in the instant case, the General Counsel re- and will be $282 in 1981.Cferred to the Pat Mills group as "travelers" who are not E. Background to the 1979 Negotiations c o v e r ed b y t h e collective-bargaining agreement between the Union and the Respondent Association. At the hear- In the 1960's, the number of Class AA hotels in Puerto ing in the Pat Mills case, the General Counsel contended Rico grew and reached a climax around 1970. In the that Pat Mills and her husband were self-employed per- 1970's, some of these Class AA hotels closed, others sons under Section 2(6) and (7) and Section 8 of the Act. were taken over by an agency of the Commonwealth of Based on the uncontroverted testimony of Pat Mills at Puerto Rico, and others were consolidated. Still others the hearing in that case that she and her husband were were sold to new management. Other changes were individual proprietors with an office in West Nyack, made. Thus, Condado Holiday Inn no longer imported New York, and that they provide musical services out- highly paid entertainers to attract guests but found it side the State of New York in excess of $50,000 a year, more productive to provide a more informal atmosphere they were found to be self-employed. The Union had in its entertainment functions. It has done away with its argued in that case that its threat to strike the El San 10-piece orchestra and now has numerous musical groups Juan Hotel was aimed at a lawful object, that is, the playing in its rooms in an effort to attract a stable local preservation of unit work. Administrative Law Judge following. The El San Juan Hotel still uses headliners Plaine held, however, that its real object was to force from the mainland as attractions but the accompaniment Pat Mills and others in her company to join the Union's for those entertainers is now taped. The El San Juan no longer uses the standard 10-piece orchestra. 246 NLRB 129 (1980). 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contents of that contract closely parallel the prior agree- By 1977, union membership had numbered about ments; "the minimum wage" scale as of the last year of 2,700; however, only about 125 of these worked in the the 1971-75 contract was $202 for each musician for the Class AA hotels. Of the Union's overall membership, standard 6-day, 28-hour workweek. Another 3-year con- only 25 percent performed on a full-time basis, that is, in tract for the period December 1, 1975, to November 30, symphony orchestras, on a single-engagement basis, or in 1978, was reached on January 27, 1976. The law firm hotels. The great majority of the Union's members per- which represented the Respondent Association at the form on a part-time basis. All professional musicians in hearing made its first appearance as its representative Puerto Rico had been until sometime in 1979 members of when it participated in the bargaining that gave rise to the Union for one or all of the following reasons: (a) it that contract. The format and contents were substantially was the accepted wisdom that a performer had to belong the same as those of the prior contracts except for the to the Union in order to work, (b) it was necessary in minimum wage rates. The member hotels as listed there- order to promote the status of professional musicians' at- in were the Americana, Caribe Hilton, Condado Holiday tempts to upgrade their profession, and (c) union mem- Inn, El San Juan, Hyatt Puerto Rico, Puerto Rico Sheri- bership was essential to enhance the status of the Puerto dan, Cerromar, Dorado Beach, and El Conquistador. In Rican musician especially in relation to the professional this contract, the musicians received an additional holi- musician coming from the mainland. In actual practice, it day-San Juan Bautista Day Eve. The scale for musi- appears that no one gave much thought to the reason for cians in 1978 was $238. That 1975-78 agreement stated joining the Union. It seems that, if a musician were ac- that the hotels retain the sole authority to change orches- cepted by his peers as a professional, he was readily ad- tra personnel in case of misconduct. mitted to union membership and was thus assured of A new contract was signed in 1979. There is a dispute, being paid "scale" whenever he played. inter alia, as to whether that signed contract reflects ac- In the course of the hearing, the parties alluded regu- curately the terms actually agreed upon in the negotia- larly to the "Pat Mills" case. That case is discussed in tions. Nevertheless the signed contract effective by its detail below. It appears that it was the result of that case terms from April 1979 for a 3-year period closely tracts that the Union, on advice of its International's counsel, prior agreements. The current contract is captioned decided to press in the course of the most recent con- "Agreement" and not "Collective Bargaining Agree- tract negotiations to have the local musicians declared to ment" as were the prior contracts; "wage rates" are now be employees of the hotels and that this declaration was termed "compensation scales." The current contract no to be expressly incorporated into the contract. longer simply states that the hotels shall make the appro- A brief look at the Pat Mills case will help put those priate deductions (from the earnings of the musicians) negotiations in better perspective. Based on a secondary and remit the required payments to the pertinent govern- boycott charge filed by Pat Mills doing business as Pat ment agencies as before. Instead it provides that the Mills and Company, a complaint had issued against the hotels are now doing these things "on behalf of the band Union. The hearing was held in December 1978. The conductors." The current contract contains a grievance- Board issued its decision on December 5, 1979.' The de- arbitration clause. Schedules A and B annexed thereto cision indicates that in July 1978 the El San Juan Hotel are similar in format to the schedules annexed to the ear- contracted, through a booking agent in New York City, lier agreements. For example, both provide for a 20- to bring down to perform in the El San Juan Hotel Pat minute rest each hour for the musicians. The doubling Mills and Company for a 4-week engagement. That charge has been increased to $5; another holiday was group consisted of Pat Mills, her husband, and five other added as was a sick leave clause, termed an "incentive musicians and a lighting operator and was nonunion. At clause." The "scale" for musicians was increased to $248 the hearing in the instant case, the General Counsel re- and will be 1282 in 1981.Cferred to the Pat Mills group as "travelers" who are not E. Background to the 1979 Negotiations c o v e r ed b y t h e collective-bargaining agreement between the Union and the Respondent Association. At the hear- In the 1960's, the number of Class AA hotels in Puerto ing in the Pat Mills case, the General Counsel contended Rico grew and reached a climax around 1970. In the that Pat Mills and her husband were self-employed per- 1970's, some of these Class AA hotels closed, others sons under Section 2(6) and (7) and Section 8 of the Act. were taken over by an agency of the Commonwealth of Based on the uncontroverted testimony of Pat Mills at Puerto Rico, and others were consolidated. Still others the hearing in that case that she and her husband were were sold to new management. Other changes were individual proprietors with an office in West Nyack, made. Thus, Condado Holiday Inn no longer imported New York, and that they provide musical services out- highly paid entertainers to attract guests but found it side the State of New York in excess of $50,000 a year, more productive to provide a more informal atmosphere they were found to be self-employed. The Union had in its entertainment functions. It has done away with its argued in that case that its threat to strike the El San 10-piece orchestra and now has numerous musical groups Juan Hotel was aimed at a lawful object, that is, the playing in its rooms in an effort to attract a stable local preservation of unit work. Administrative Law Judge following. The El San Juan Hotel still uses headliners Plaine held, however, that its real object was to force from the mainland as attractions but the accompaniment Pat Mills and others in her company to join the Union's for those entertainers is now taped. The El San Juan no longer uses the standard 10-piece orchestra. 246 NLRB 129 (1980). 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contents of that contract closely parallel the prior agree- By 1977, union membership had numbered about ments; "the minimum wage" scale as of the last year of 2,700; however, only about 125 of these worked in the the 1971-75 contract was $202 for each musician for the Class AA hotels. Of the Union's overall membership, standard 6-day, 28-hour workweek. Another 3-year con- only 25 percent performed on a full-time basis, that is, in tract for the period December 1, 1975, to November 30, symphony orchestras, on a single-engagement basis, or in 1978, was reached on January 27, 1976. The law firm hotels. The great majority of the Union's members per- which represented the Respondent Association at the form on a part-time basis. All professional musicians in hearing made its first appearance as its representative Puerto Rico had been until sometime in 1979 members of when it participated in the bargaining that gave rise to the Union for one or all of the following reasons: (a) it that contract. The format and contents were substantially was the accepted wisdom that a performer had to belong the same as those of the prior contracts except for the to the Union in order to work, (b) it was necessary in minimum wage rates. The member hotels as listed there- order to promote the status of professional musicians' at- in were the Americana, Caribe Hilton, Condado Holiday tempts to upgrade their profession, and (c) union mem- Inn, El San Juan, Hyatt Puerto Rico, Puerto Rico Sheri- bership was essential to enhance the status of the Puerto dan, Cerromar, Dorado Beach, and El Conquistador. In Rican musician especially in relation to the professional this contract, the musicians received an additional holi- musician coming from the mainland. In actual practice, it day-San Juan Bautista Day Eve. The scale for musi- appears that no one gave much thought to the reason for cians in 1978 was $238. That 1975-78 agreement stated joining the Union. It seems that, if a musician were ac- that the hotels retain the sole authority to change orches- cepted by his peers as a professional, he was readily ad- tra personnel in case of misconduct. mitted to union membership and was thus assured of A new contract was signed in 1979. There is a dispute, being paid "scale" whenever he played. inter alia, as to whether that signed contract reflects ac- In the course of the hearing, the parties alluded regu- curately the terms actually agreed upon in the negotia- larly to the "Pat Mills" case. That case is discussed in tions. Nevertheless the signed contract effective by its detail below. It appears that it was the result of that case terms from April 1979 for a 3-year period closely tracts that the Union, on advice of its International's counsel, prior agreements. The current contract is captioned decided to press in the course of the most recent con- "Agreement" and not "Collective Bargaining Agree- tract negotiations to have the local musicians declared to ment" as were the prior contracts; "wage rates" are now be employees of the hotels and that this declaration was termed "compensation scales." The current contract no to be expressly incorporated into the contract. longer simply states that the hotels shall make the appro- A brief look at the Pat Mills case will help put those priate deductions (from the earnings of the musicians) negotiations in better perspective. Based on a secondary and remit the required payments to the pertinent govern- boycott charge filed by Pat Mills doing business as Pat ment agencies as before. Instead it provides that the Mills and Company, a complaint had issued against the hotels are now doing these things "on behalf of the band Union. The hearing was held in December 1978. The conductors." The current contract contains a grievance- Board issued its decision on December 5, 1979.' The de- arbitration clause. Schedules A and B annexed thereto cision indicates that in July 1978 the El San Juan Hotel are similar in format to the schedules annexed to the ear- contracted, through a booking agent in New York City, lier agreements. For example, both provide for a 20- to bring down to perform in the El San Juan Hotel Pat minute rest each hour for the musicians. The doubling Mills and Company for a 4-week engagement. That charge has been increased to $5; another holiday was group consisted of Pat Mills, her husband, and five other added as was a sick leave clause, termed an "incentive musicians and a lighting operator and was nonunion. At clause." The "scale" for musicians was increased to $248 the hearing in the instant case, the General Counsel re- and will be 1282 in 1981.Cferred to the Pat Mills group as "travelers" who are not E. Background to the 1979 Negotiations c o v e r ed b y t h e collective-bargaining agreement between the Union and the Respondent Association. At the hear- In the 1960's, the number of Class AA hotels in Puerto ing in the Pat Mills case, the General Counsel contended Rico grew and reached a climax around 1970. In the that Pat Mills and her husband were self-employed per- 1970's, some of these Class AA hotels closed, others sons under Section 2(6) and (7) and Section 8 of the Act. were taken over by an agency of the Commonwealth of Based on the uncontroverted testimony of Pat Mills at Puerto Rico, and others were consolidated. Still others the hearing in that case that she and her husband were were sold to new management. Other changes were individual proprietors with an office in West Nyack, made. Thus, Condado Holiday Inn no longer imported New York, and that they provide musical services out- highly paid entertainers to attract guests but found it side the State of New York in excess of $50,000 a year, more productive to provide a more informal atmosphere they were found to be self-employed. The Union had in its entertainment functions. It has done away with its argued in that case that its threat to strike the El San 10-piece orchestra and now has numerous musical groups Juan Hotel was aimed at a lawful object, that is, the playing in its rooms in an effort to attract a stable local preservation of unit work. Administrative Law Judge following. The El San Juan Hotel still uses headliners Plaine held, however, that its real object was to force from the mainland as attractions but the accompaniment Pat Mills and others in her company to join the Union's for those entertainers is now taped. The El San Juan no longer uses the standard 10-piece orchestra. 246 NLRB 129 (1980). PUERTO RICO HOTEL ASSOCIATION 439 sister local in New York City and that the Union's threat plied that the noneconomic demands were completely thus violated the Act as alleged. unacceptable; he stated that the members of Respondent For reasons not clear but apparently related to some of Association "do not employ musicians," that Respondent the issues in the Pat Mills case, the Union decided to Association has always rejected the Union's proposals seek separate negotiations in December 1978 with the "to have the hotels incorporate musicians into their regu- Class AA hotels in Puerto Rico and also to obtain ex- lar work force," and that the musicians are "employees press language in the collective-bargaining agreement of leaders." Domenech noted that the Respondent Asso- that the local musicians were employees of the hotels, ciation and the Union have always discussed "certain subject to a union-security clause, entitled to representa- minimum wage" scalee for musicians to work at the tion by stewards and also to receive sick leave pay. As "member hotels." Domenech also observed in that letter discussed below, the Pat Mills case has a bearing on the that the Union's proposals respecting those minimum language used in the recognition clause of the 1979-81 (wage) scales were "to say the least unrealistic," and he contract. suggested that the Union "present realistic proposals." F. The Most Recent Negotiations Also, on November 17, the mutual aid protection agree- ment referred to above was signed inter alia by repre- The Union's president, Angel Nater, testified that in sentatives of the Caribe Hilton Hotel, Condado Holiday September 1978 he told the executive director, Miguel Inn, LaConcha-Condado Beach, and by Sam Sweitzer Domenech, of the Respondent Association that the for El San Juan Hotel. Union wanted to negotiate individually with the hotels On November 27, 1978, Sam Sweitzer, the president of involved in this case and that Domenech responded in El San Juan Hotel, wrote the Union stating that he was effect that the hotels wanted the Respondent Association writing on behalf of El San Juan, the El Conquistador, to act as their joint representative. It appears that Nater and the Palace Hotels. These hotels are owned by one himself conducted the Union's negotiations directly with individual, Louis Puro. Sweitzer stated in that letter that an advisory group in the background. The Union's adv- these hotels deny the statement in the "collective br- sory group consisted of three individuals, one of whom gaining agreement" for the period December 1, 1975, to was Juan Pinero, who also had been the Union's vice November 30 1978 (which covered the musicians at November 30, 1978 (which covered the musicians at president. Pinero, as discussed below in another section, those three hotels), that the servic of those musicians is alleged in this case to be a supervisor employed by the supervision of the hotels" and its execu- _aribe .... on . . .. are "under the supervision of the hotels" and its execu- Caribe Hilton Hotel. epemer 1 Domenec wote Nte to tive managing its facilities. Sweitzer wrote that these On September 28, 1978, Domenech wrote Nater to three hotels were not employers of the musicians and state that the contract "which established working condi- thr ee h o t e s w ere no t t epoyen o fthe musicians and tions for the contracting of musicians" will expire on No- tha t they "re fu s ed to reco g nze the Un o nor t o bargain vember 30, 1978, and therein he asked Nater to set forth t h t fo r o f l ab o r c o n t ra ct o v e m us the Union's demands, an obvious invitation to the Union who perform in these hotels." He concluded his letter to begin negotiations for a renewal contract. Domenech with the statement that the El San Juan, El Conquista- wrote the Union on October 17 to note that he had not dor, and the Palace Hotel have advised the Respondent received a written reply to his September 28 letter and Association of their dissent from certain parts of the Re- he stated therein that, instead, Nater had left two tele- spondent Association's letter to the Union dated Novem- phone messages which appeared to be in conflict with ber 17, 1978. each other-in one, Nater reportedly said that the Union The first negotiation meeting for a renewal contract would negotiate with each hotel individually and, in the for 1979 took place on November 28, 1978, and was at- later call, Nater reportedly indicated that the Union tended by the Union's president, Nater, and by the Re- would forward its demands to Respondent Association spondent Association's president, Juan Santoni, its execu- on or about October 15, 1978. Nater responded by letter tive director, and two members of the law firm repre- of October 19, and enclosed with it a list of what the senting the Respondent Association. Nater testified that parties termed the Union's "non economic" demands. On the Respondent Association's representatives told him November 3, Domenech wrote Nater asking that the then that the Union's demands included matters that im- Union's "economic demands" be made as soon as possi- plied that the parties were negotiating a collective-bar- ble. On October 2, representatives from hotels belonging gaining agreement. Nater testified that he thereupon re- to the Respondent Association had met and drafted a sponded that was exactly what the Respondent Associ- "Mutual aid and protection agreement" which recited ation and the Union had been doing since 1961. Nater, in that these hotels "desired to continue engaging in collec- his testimony, characterized the Respondent Associ- tive bargaining negotiations with the Union on a multi- ation's position as analogous to that of a "half pregnant" employer basis." The draft further recites that the Re- woman in that, from Nater's viewpoint, the Respondent spondent Association's board of directors was empow- Association was engaged in collective bargaining while, ered to "establish a labor relations policy" for the musi- at the same time, denying it. The Respondent Associ- cians. That mutual pact referred to the possibility of a ation's representatives stated at those negotiations that it "whipsaw strike against one of the employers" and to a was amenable to Nater's suggestion that the National lockout response thereto. Labor Relations Board resolve their controversy as to On November 10, 1978, the Union set forth its eco- whether the hotels employ musicians. The Respondent nomic and noneconomic demands in Nater's letter to Association also observed that it is aware of the in- Domenech. By letter of November 17, Domenech re- creased cost of living and that its position in adjusting PUERTO RICO HOTEL ASSOCIATION 439 sister local in New York City and that the Union's threat plied that the noneconomic demands were completely thus violated the Act as alleged,.unacceptable; he stated that the members of Respondent For reasons not clear but apparently related to some of Association "do not employ musicians," that Respondent the issues in the Pat Mills case, the Union decided to Association has always rejected the Union's proposals seek separate negotiations in December 1978 with the "to have the hotels incorporate musicians into their regu- Class AA hotels in Puerto Rico and also to obtain ex- lar work force," and that the musicians are "employees press language in the collective-bargaining agreement of leaders." Domenech noted that the Respondent Asso- that the local musicians were employees of the hotels, ciation and the Union have always discussed "certain subject to a union-security clause, entitled to representa- minimum wage" scalee for musicians to work at the tion by stewards and also to receive sick leave pay. As "member hotels." Domenech also observed in that letter discussed below, the Pat Mills case has a bearing on the that the Union's proposals respecting those minimum language used in the recognition clause of the 1979-81 (wage) scales were "to say the least unrealistic," and he contract,.suggested that the Union "present realistic proposals." F. The Most Recent Negotiations Als o , o n November 17, the mutual aid protection agree- ment referred to above was signed inter alia by repre- The Union's president, Angel Nater, testified that in sentatives of the Caribe Hilton Hotel, Condado Holiday September 1978 he told the executive director, Miguel Inn, LaConcha-Condado Beach, and by Sam Sweitzer Domenech, of the Respondent Association that the for El San Juan Hotel. Union wanted to negotiate individually with the hotels On November 27. 1978, Sam Sweitzer, the president of involved in this case and that Domenech responded in El San Juan Hotel, wrote the Union stating that he was effect that the hotels wanted the Respondent Association writing on behalf of El San Juan, the El Conquistador, to act as their joint representative. It appears that Nater and the Palace Hotels. Tlese hotels are owned by one himself conducted the Union's negotiations directly with individual, Louis Puro. Sweitzer stated in that letter that an advisory group in the background. The Union's advi- these hotels deny the statement in the "collective bar- sory group consisted of three individuals, one of whom gaining agreement" for the period December 1, 1975, to was Juan Pinero, who also had been the Union's vice N ember 30. 1978 (which covered the musicians at president. Pinero, as discussed below in another section, t tr h t t s o musicians is alleged in this case to be a supervisor employed by the are " supervision of the hotels" and its execu- Canibe Hulton Hotel.. *r *. d r *h uprisio c-e **tls an »it ex »» Caribe Hilton Hotel. ~~~~tive managing its facilities. Sweitzer wrote that these On September 28. 1978, Domenech wrote Nater to t hr e hotlsg er nt employer te miat and state that the contract "which established working condi- th r ee h o t e y s w e r e no t t peoyei o f t he musicians and tions for the contracting of musicians" will expire on No- t h a t for ar e f u sed to r ec o gr z e t hr U n c o n o v tomusiain vember 30, 1978, and therein he asked Nater to set forth w t h *t f o r "y ^ o f l ab o r c o n t r a c t < o v er m s m usicians the Union's demands, an obvious invitation to the Union w h o perform in t h ese h o t els." H e concluded his letter to begin negotiations for a renewal contract. Domenech wit h th e statement that the El San Juan, El Conquista- wrote the Union on October 17 to note that he had not do r' a nd t he P al ace H o te l h a v e ad v ise d t h e Respondent received a written reply to his September 28 letter and Association of their dissent from certain parts of the Re- he stated therein that, instead, Nater had left two tele- spondent Association's letter to the Union dated Novem- phone messages which appeared to be in conflict with b er 17, 197 8 . each other-in one, Nater reportedly said that the Union The first negotiation meeting for a renewal contract would negotiate with each hotel individually and, in the for 19 7 9 took place on November 28, 1978, and was at- later call, Nater reportedly indicated that the Union tended by the Union's president, Nater, and by the Re- would forward its demands to Respondent Association spondent Association's president, Juan Santoni, its execu- on or about October 15, 1978. Nater responded by letter tive director, and two members of the law firm repre- of October 19, and enclosed with it a list of what the senting the Respondent Association. Nater testified that parties termed the Union's "non economic" demands. On the Respondent Association's representatives told him November 3, Domenech wrote Nater asking that the then that the Union's demands included matters that im- Union's "economic demands" be made as soon as possi- plied that the parties were negotiating a collective-bar- ble. On October 2, representatives from hotels belonging gaining agreement. Nater testified that he thereupon re- to the Respondent Association had met and drafted a sponded that was exactly what the Respondent Associ- "Mutual aid and protection agreement" which recited ation and the Union had been doing since 1961. Nater, in that these hotels "desired to continue engaging in collec- his testimony, characterized the Respondent Associ- tive bargaining negotiations with the Union on a multi- ation's position as analogous to that of a "half pregnant" employer basis." The draft further recites that the Re- woman in that, from Nater's viewpoint, the Respondent spondent Association's board of directors was empow- Association was engaged in collective bargaining while, ered to "establish a labor relations policy" for the musi- at the same time, denying it. The Respondent Associ- cians. That mutual pact referred to the possibility of a ation's representatives stated at those negotiations that it "whipsaw strike against one of the employers" and to a was amenable to Nater's suggestion that the National lockout response thereto. Labor Relations Board resolve their controversy as to On November 10, 1978, the Union set forth its eco- whether the hotels employ musicians. The Respondent nomic and noneconomic demands in Nater's letter to Association also observed that it is aware of the in- Domenech. By letter of November 17, Domenech re- creased cost of living and that its position in adjusting PUERTO RICO HOTEL ASSOCIATION 439 sister local in New York City and that the Union's threat plied that the noneconomic demands were completely thus violated the Act as alleged,.unacceptable; he stated that the members of Respondent For reasons not clear but apparently related to some of Association "do not employ musicians," that Respondent the issues in the Pat Mills case, the Union decided to Association has always rejected the Union's proposals seek separate negotiations in December 1978 with the "to have the hotels incorporate musicians into their regu- Class AA hotels in Puerto Rico and also to obtain ex- lar work force," and that the musicians are "employees press language in the collective-bargaining agreement of leaders." Domenech noted that the Respondent Asso- that the local musicians were employees of the hotels, ciation and the Union have always discussed "certain subject to a union-security clause, entitled to representa- minimum wage" scalee for musicians to work at the tion by stewards and also to receive sick leave pay. As "member hotels." Domenech also observed in that letter discussed below, the Pat Mills case has a bearing on the that the Union's proposals respecting those minimum language used in the recognition clause of the 1979-81 (wage) scales were "to say the least unrealistic," and he contract,.suggested that the Union "present realistic proposals." F. The Most Recent Negotiations Als o , o n November 17, the mutual aid protection agree- ment referred to above was signed inter alia by repre- The Union's president, Angel Nater, testified that in sentatives of the Caribe Hilton Hotel, Condado Holiday September 1978 he told the executive director, Miguel Inn, LaConcha-Condado Beach, and by Sam Sweitzer Domenech, of the Respondent Association that the for El San Juan Hotel. Union wanted to negotiate individually with the hotels On November 27. 1978, Sam Sweitzer, the president of involved in this case and that Domenech responded in El San Juan Hotel, wrote the Union stating that he was effect that the hotels wanted the Respondent Association writing on behalf of El San Juan, the El Conquistador, to act as their joint representative. It appears that Nater and the Palace Hotels. Tlese hotels are owned by one himself conducted the Union's negotiations directly with individual, Louis Puro. Sweitzer stated in that letter that an advisory group in the background. The Union's advi- these hotels deny the statement in the "collective bar- sory group consisted of three individuals, one of whom gaining agreement" for the period December 1, 1975, to was Juan Pinero, who also had been the Union's vice N ember 30. 1978 (which covered the musicians at president. Pinero, as discussed below in another section, t tr h t t s o musicians is alleged in this case to be a supervisor employed by the are " supervision of the hotels" and its execu- Canibe Hulton Hotel.. *r *. d r *h uprisio c-e **tls an »it ex »» OnrSepHiltoneHotel. 1978, Domenech wrteNaterto tiv e managing its facilities. Sweitzer wrote that these On September 28, 1978, Domenech wrote Nater to trehtl eentepoeso h uiin n state that the contract "which established working condi- th r ee h o t e y s w e r e no t t peoyei o f t he musicians and tions for the contracting of musicians" will expire on No- t h a t for ar e f u sed to r ec o gr z e t hr U n c o n o v tomusiain vember 30, 1978, and therein he asked Nater to set forth w t h *t f o r "y ^ o f l ab o r c o n t r a c t < o v er m s m u sl c wa s the Union's demands, an obvious invitation to the Union w h o perform in t h ese h o t els." H e concluded his letter to begin negotiations for a renewal contract. Domenech wit h th e statement that the El San Juan, El Conquista- wrote the Union on October 17 to note that he had not do r' a nd t he P al ace H o te l h a v e ad v ise d t h e Respondent received a written reply to his September 28 letter and Association of their dissent from certain parts of the Re- he stated therein that, instead, Nater had left two tele- spondent Association's letter to the Union dated Novem- phone messages which appeared to be in conflict with b er 17, 197 8 . each other-in one, Nater reportedly said that the Union The first negotiation meeting for a renewal contract would negotiate with each hotel individually and, in the for 19 7 9 took place on November 28, 1978, and was at- later call, Nater reportedly indicated that the Union tended by the Union's president, Nater, and by the Re- would forward its demands to Respondent Association spondent Association's president, Juan Santoni, its execu- on or about October 15, 1978. Nater responded by letter tive director, and two members of the law firm repre- of October 19, and enclosed with it a list of what the senting the Respondent Association. Nater testified that parties termed the Union's "non economic" demands. On the Respondent Association's representatives told him November 3, Domenech wrote Nater asking that the then that the Union's demands included matters that im- Union's "economic demands" be made as soon as possi- plied that the parties were negotiating a collective-bar- ble. On October 2, representatives from hotels belonging gaining agreement. Nater testified that he thereupon re- to the Respondent Association had met and drafted a sponded that was exactly what the Respondent Associ- "Mutual aid and protection agreement" which recited ation and the Union had been doing since 1961. Nater, in that these hotels "desired to continue engaging in collec- his testimony, characterized the Respondent Associ- tive bargaining negotiations with the Union on a multi- ation's position as analogous to that of a "half pregnant" employer basis." The draft further recites that the Re- woman in that, from Nater's viewpoint, the Respondent spondent Association's board of directors was empow- Association was engaged in collective bargaining while, ered to "establish a labor relations policy" for the musi- at the same time, denying it. The Respondent Associ- cians. That mutual pact referred to the possibility of a ation's representatives stated at those negotiations that it "whipsaw strike against one of the employers" and to a was amenable to Nater's suggestion that the National lockout response thereto. Labor Relations Board resolve their controversy as to On November 10, 1978, the Union set forth its eco- whether the hotels employ musicians. The Respondent nomic and noneconomic demands in Nater's letter to Association also observed that it is aware of the in- Domenech. By letter of November 17, Domenech re- creased cost of living and that its position in adjusting PUERTO RICO HOTEL ASSOCIATION 439 sister local in New York City and that the Union's threat plied that the noneconomic demands were completely thus violated the Act as alleged,.unacceptable; he stated that the members of Respondent For reasons not clear but apparently related to some of Association "do not employ musicians," that Respondent the issues in the Pat Mills case, the Union decided to Association has always rejected the Union's proposals seek separate negotiations in December 1978 with the "to have the hotels incorporate musicians into their regu- Class AA hotels in Puerto Rico and also to obtain ex- lar work force," and that the musicians are "employees press language in the collective-bargaining agreement of leaders." Domenech noted that the Respondent Asso- that the local musicians were employees of the hotels, ciation and the Union have always discussed "certain subject to a union-security clause, entitled to representa- minimum wage" scalee for musicians to work at the tion by stewards and also to receive sick leave pay. As "member hotels." Domenech also observed in that letter discussed below, the Pat Mills case has a bearing on the that the Union's proposals respecting those minimum language used in the recognition clause of the 1979-81 (wage) scales were "to say the least unrealistic," and he contract,.suggested that the Union "present realistic proposals." F. The Most Recent Negotiations Als o , o n November 17, the mutual aid protection agree- ment referred to above was signed inter alia by repre- The Union's president, Angel Nater, testified that in sentatives of the Caribe Hilton Hotel, Condado Holiday September 1978 he told the executive director, Miguel Inn, LaConcha-Condado Beach, and by Sam Sweitzer Domenech, of the Respondent Association that the for El San Juan Hotel. Union wanted to negotiate individually with the hotels On November 27. 1978, Sam Sweitzer, the president of involved in this case and that Domenech responded in El San Juan Hotel, wrote the Union stating that he was effect that the hotels wanted the Respondent Association writing on behalf of El San Juan, the El Conquistador, to act as their joint representative. It appears that Nater and the Palace Hotels. Tlese hotels are owned by one himself conducted the Union's negotiations directly with individual, Louis Puro. Sweitzer stated in that letter that an advisory group in the background. The Union's advi- these hotels deny the statement in the "collective bar- sory group consisted of three individuals, one of whom gaining agreement" for the period December 1, 1975, to was Juan Pinero, who also had been the Union's vice N ember 30. 1978 (which covered the musicians at president. Pinero, as discussed below in another section, t tr h t t s o musicians is alleged in this case to be a supervisor employed by the are " supervision of the hotels" and its execu- Canibe Hulton Hotel.. *r *. d r *h uprisio c-e **tls an »it ex »» OnrSepHiltoneHotel. 1978, Domenech wrteNaterto tiv e managing its facilities. Sweitzer wrote that these On September 28, 1978, Domenech wrote Nater to trehtl eentepoeso h uiin n state that the contract "which established working condi- th r ee h o t e y s w e r e no t t peoyei o f t e musicians and tions for the contracting of musicians" will expire on No- t h a t for ar e f u sed to r ec o gr z e t hr U n c o n o v tomusiain vember 30, 1978, and therein he asked Nater to set forth w t h *t f o r "y ^ o f l ab o r c o n t r a c t < o v er m s m u sl c wa s the Union's demands, an obvious invitation to the Union w h o perform in t h ese h o t els." H e concluded his letter to begin negotiations for a renewal contract. Domenech wit h th e statement that the El San Juan, El Conquista- wrote the Union on October 17 to note that he had not do r' a nd t he P al ace H o te l h a v e ad v ise d t h e Respondent received a written reply to his September 28 letter and Association of their dissent from certain parts of the Re- he stated therein that, instead, Nater had left two tele- spondent Association's letter to the Union dated Novem- phone messages which appeared to be in conflict with b er 17, 197 8 . each other-in one, Nater reportedly said that the Union The first negotiation meeting for a renewal contract would negotiate with each hotel individually and, in the for 19 7 9 took place on November 28, 1978, and was at- later call, Nater reportedly indicated that the Union tended by the Union's president, Nater, and by the Re- would forward its demands to Respondent Association spondent Association's president, Juan Santoni, its execu- on or about October 15, 1978. Nater responded by letter tive director, and two members of the law firm repre- of October 19, and enclosed with it a list of what the senting the Respondent Association. Nater testified that parties termed the Union's "non economic" demands. On the Respondent Association's representatives told him November 3, Domenech wrote Nater asking that the then that the Union's demands included matters that im- Union's "economic demands" be made as soon as possi- plied that the parties were negotiating a collective-bar- ble. On October 2, representatives from hotels belonging gaining agreement. Nater testified that he thereupon re- to the Respondent Association had met and drafted a sponded that was exactly what the Respondent Associ- "Mutual aid and protection agreement" which recited ation and the Union had been doing since 1961. Nater, in that these hotels "desired to continue engaging in collec- his testimony, characterized the Respondent Associ- tive bargaining negotiations with the Union on a multi- ation's position as analogous to that of a "half pregnant" employer basis." The draft further recites that the Re- woman in that, from Nater's viewpoint, the Respondent spondent Association's board of directors was empow- Association was engaged in collective bargaining while, ered to "establish a labor relations policy" for the musi- at the same time, denying it. The Respondent Associ- cians. That mutual pact referred to the possibility of a ation's representatives stated at those negotiations that it "whipsaw strike against one of the employers" and to a was amenable to Nater's suggestion that the National lockout response thereto. Labor Relations Board resolve their controversy as to On November 10, 1978, the Union set forth its eco- whether the hotels employ musicians. The Respondent nomic and noneconomic demands in Nater's letter to Association also observed that it is aware of the in- Domenech. By letter of November 17, Domenech re- creased cost of living and that its position in adjusting 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the earnings of the musicians should not be in variance would be all right, the Union decided not to go on strike with adjustments that "may be directly agreed upon by at the El San Juan hotel. the different hotels with the orchestras leaders perform- Nater testified that on January 8, 1979, he was advised ing under contract in their facilities." (There was no tes- by the Respondent Association's attorneys that the timony that any of the member hotels had direct discus- Union had to withdraw its unfair labor practice charge sions with the leaders thereon from then and until the before negotiations could resume and that the Respond- Union and the Respondent Association ultimately ent Association continued to assert that the hotels were reached a new agreement, as discussed below.) not the employers of the musicians. Nater informed them The Union then filed an unfair labor practice charge that the hotels were in fact the employers of the musi- with Region 24 of the Board. On December 7, its presi- cians; he testified that, nevertheless and in order to be dent, Nater, wrote Domenech and enclosed with his able to negotiate, he accepted the Respondent Associ- letter the Union's new contract proposals. The enclosed ation's demands. documents omitted reference to a "collective bargaining On January 15, when the Union and the Respondent agreement" and simply referred to this "agreement." The Association met again, Nater advised the Respondent proposals therein recited that they shall be applicable to Association that he had not yet withdrawn the unfair the classification of employees listed in the "wage scale, labor practice charge. He was then given a letter by the hours of employment and working conditions" attached Respondent Association and was requested to sign it. He thereto as schedule A and to those who are "employed did so. The letter recited that he had agreed on January within the premises of the hotel whose services are ren- 8 that musicians are not employees of the hotels and that dered into the connection with the entertainment and consequently the Union agreed to withdraw the unfair dancing, all of whom will be [therein] collectively re- labor practice charge it had filed. ferred to as "musicians"-and that "all such musicians On January 22, 1979, the Respondent Association pre- shall be in the bargaining unit covered by this agree- sented Nater with another document and requested that ment." Among the provisions sought by the Union as set he sign that one. He did so. That document recited that forth in the proposed agreement were a union-shop the hotels had made deductions including social security clause, a grievance and arbitration clause, a no-lockout taxes from the compensation paid musicians as an admin- clause, a clause for free parking facilities, additional paid istrative service to band leaders who do not have the holidays, 12 days sick leave each year, a clause providing means and personnel to undertake those tasks. for payment of a Christmas bonus, coverage for family The next meeting was held on January 23. Present for medical expenses, a no-subcontracting-out clause, and the Association were its president, Juan Santoni, its ex- provisions for an increase in the weekly wage scale to ecutive director, Miguel Domenech, its attorney, Mila- $353 in the last of a 3-year contract. gro Soto, and two hotel officials, Roberto Lugo and Nater met with the Respondent Association's repre- Arne Orenstein. For the Union were its president, Nater, sentatives and its legal counsel on December 8, 1978. its treasurer, and a trustee. The Respondent Association Nater testified at the hearing that, to get the negotiations presented its draft of the agreement. Nater and Santoni going then, he signed a letter prepared by the Respond- on behalf of the respective parties initialed a number of ent Association whereby Nater acknowledged that he clauses on that draft to indicate their agreement as to has "reached the moral conviction that the position as- those clauses. The recognition clause as so approved sumed by (the Respondent Associaton) in relation to the read "the hotels recognize the Union as the exclusive issue of whether or not the musicians are employees of representative of all musicians performing within the the hotels is reasonable" and that the Union was willing hotel." (The General Counsel contends that subsequently not to insist on "integrating the musicians as part of the the Respondent Association unilaterally inserted the let- [hotel] labor force" provided agreement could be ters "AFM" before the word "musicians" in that clause reached on a commercial compulsory arbitration clause to suggest that the Union had agreed to represent only in the contract in order to protect the musicians ade- union members; the Respondent Association asserts that quately. the clause was in fact later modified by agreement.) On In late December 1978, when the 1975-78 agreement February 15, the Union and the Respondent Association was scheduled to expire, the Union agreed in a meeting met. The parties reached agreement respecting a "fondo with representatives for the Respondent Association, incentive" whereby the hotels would contribute to a which was also attended by officials from the Puerto fund a certain amount of money each month for musi- Rican Conciliation and Arbitration Bureau, to continue cians to compensate them for days lost because of illness bargaining without calling a strike. and to provide an incentive for a musician not to feign On December 31, 1978, Nater and other union repre- illness and to perform although not perfectly well. Under sentatives met with Louis Puro at his office in the El San this clause, each musician would receive at the end of Juan Hotel and informed him in effect that the Novem- each year the balance of the money credited to him in ber 27 letter the Union received from Sam Sweitzer on that fund. The Union asserts that the hotel in essence behalf of the El San Juan Hotel, the El Conquistador, granted their demand for sick leave pay. The parties and the Palace Hotel was an untimely attempt to avoid reached agreement on a number of other items including associationwide bargaining. Nater said that Puro told increased earnings, or other type pay raises, on the him that he was willing to "deal with the hotel associ- number of vacation days and they also agreed that trav- ation" and that, on Puro's general assurance that things elers shall not be part of the contract. Roberto Lugo 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the earnings of the musicians should not be in variance would be all right, the Union decided not to go on strike with adjustments that "may be directly agreed upon by at the El San Juan hotel. the different hotels with the orchestras leaders perform- Nater testified that on January 8, 1979, he was advised ing under contract in their facilities." (There was no tes- by the Respondent Association's attorneys that the timony that any of the member hotels had direct discus- Union had to withdraw its unfair labor practice charge sions with the leaders thereon from then and until the before negotiations could resume and that the Respond- Union and the Respondent Association ultimately ent Association continued to assert that the hotels were reached a new agreement, as discussed below.) not the employers of the musicians. Nater informed them The Union then filed an unfair labor practice charge that the hotels were in fact the employers of the musi- with Region 24 of the Board. On December 7, its presi- cians; he testified that, nevertheless and in order to be dent, Nater, wrote Domenech and enclosed with his able to negotiate, he accepted the Respondent Associ- letter the Union's new contract proposals. The enclosed ation's demands. documents omitted reference to a "collective bargaining On January 15, when the Union and the Respondent agreement" and simply referred to this "agreement." The Association met again, Nater advised the Respondent proposals therein recited that they shall be applicable to Association that he had not yet withdrawn the unfair the classification of employees listed in the "wage scale, labor practice charge. He was then given a letter by the hours of employment and working conditions" attached Respondent Association and was requested to sign it. He thereto as schedule A and to those who are "employed did so. The letter recited that he had agreed on January within the premises of the hotel whose services are ren- 8 that musicians are not employees of the hotels and that dered into the connection with the entertainment and consequently the Union agreed to withdraw the unfair dancing, all of whom will be [therein] collectively re- labor practice charge it had filed. ferred to as "musicians"-and that "all such musicians On January 22, 1979, the Respondent Association pre- shall be in the bargaining unit covered by this agree- sented Nater with another document and requested that ment." Among the provisions sought by the Union as set he sign that one. He did so. That document recited that forth in the proposed agreement were a union-shop the hotels had made deductions including social security clause, a grievance and arbitration clause, a no-lockout taxes from the compensation paid musicians as an admin- clause, a clause for free parking facilities, additional paid istrative service to band leaders who do not have the holidays, 12 days sick leave each year, a clause providing means and personnel to undertake those tasks. for payment of a Christmas bonus, coverage for family The next meeting was held on January 23. Present for medical expenses, a no-subcontracting-out clause, and the Association were its president, Juan Santoni, its ex- provisions for an increase in the weekly wage scale to ecutive director, Miguel Domenech, its attorney, Mila- $353 in the last of a 3-year contract. gro Soto, and two hotel officials, Roberto Lugo and Nater met with the Respondent Association's repre- Arne Orenstein. For the Union were its president, Nater, sentatives and its legal counsel on December 8, 1978. its treasurer, and a trustee. The Respondent Association Nater testified at the hearing that, to get the negotiations presented its draft of the agreement. Nater and Santoni going then, he signed a letter prepared by the Respond- on behalf of the respective parties initialed a number of ent Association whereby Nater acknowledged that he clauses on that draft to indicate their agreement as to has "reached the moral conviction that the position as- those clauses. The recognition clause as so approved sumed by (the Respondent Associaton) in relation to the read "the hotels recognize the Union as the exclusive issue of whether or not the musicians are employees of representative of all musicians performing within the the hotels is reasonable" and that the Union was willing hotel." (The General Counsel contends that subsequently not to insist on "integrating the musicians as part of the the Respondent Association unilaterally inserted the let- [hotel] labor force" provided agreement could be ters "AFM" before the word "musicians" in that clause reached on a commercial compulsory arbitration clause to suggest that the Union had agreed to represent only in the contract in order to protect the musicians ade- union members; the Respondent Association asserts that quately. the clause was in fact later modified by agreement.) On In late December 1978, when the 1975-78 agreement February 15, the Union and the Respondent Association was scheduled to expire, the Union agreed in a meeting met. The parties reached agreement respecting a "fondo with representatives for the Respondent Association, incentive" whereby the hotels would contribute to a which was also attended by officials from the Puerto fund a certain amount of money each month for musi- Rican Conciliation and Arbitration Bureau, to continue cians to compensate them for days lost because of illness bargaining without calling a strike. and to provide an incentive for a musician not to feign On December 31, 1978, Nater and other union repre- illness and to perform although not perfectly well. Under sentatives met with Louis Puro at his office in the El San this clause, each musician would receive at the end of Juan Hotel and informed him in effect that the Novem- each year the balance of the money credited to him in ber 27 letter the Union received from Sam Sweitzer on that fund. The Union asserts that the hotel in essence behalf of the El San Juan Hotel, the El Conquistador, granted their demand for sick leave pay. The parties and the Palace Hotel was an untimely attempt to avoid reached agreement on a number of other items including associationwide bargaining. Nater said that Puro told increased earnings, or other type pay raises, on the him that he was willing to "deal with the hotel associ- number of vacation days and they also agreed that trav- ation" and that, on Puro's general assurance that things elers shall not be part of the contract. Roberto Lugo 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the earnings of the musicians should not be in variance would be all right, the Union decided not to go on strike with adjustments that "may be directly agreed upon by at the El San Juan hotel. the different hotels with the orchestras leaders perform- Nater testified that on January 8, 1979, he was advised ing under contract in their facilities." (There was no tes- by the Respondent Association's attorneys that the timony that any of the member hotels had direct discus- Union had to withdraw its unfair labor practice charge sions with the leaders thereon from then and until the before negotiations could resume and that the Respond- Union and the Respondent Association ultimately ent Association continued to assert that the hotels were reached a new agreement, as discussed below.) not the employers of the musicians. Nater informed them The Union then filed an unfair labor practice charge that the hotels were in fact the employers of the musi- with Region 24 of the Board. On December 7, its presi- cians; he testified that, nevertheless and in order to be dent, Nater, wrote Domenech and enclosed with his able to negotiate, he accepted the Respondent Associ- letter the Union's new contract proposals. The enclosed ation's demands. documents omitted reference to a "collective bargaining On January 15, when the Union and the Respondent agreement" and simply referred to this "agreement." The Association met again, Nater advised the Respondent proposals therein recited that they shall be applicable to Association that he had not yet withdrawn the unfair the classification of employees listed in the "wage scale, labor practice charge. He was then given a letter by the hours of employment and working conditions" attached Respondent Association and was requested to sign it. He thereto as schedule A and to those who are "employed did so. The letter recited that he had agreed on January within the premises of the hotel whose services are ren- 8 that musicians are not employees of the hotels and that dered into the connection with the entertainment and consequently the Union agreed to withdraw the unfair dancing, all of whom will be [therein] collectively re- labor practice charge it had filed. ferred to as "musicians"-and that "all such musicians On January 22, 1979, the Respondent Association pre- shall be in the bargaining unit covered by this agree- sented Nater with another document and requested that ment." Among the provisions sought by the Union as set he sign that one. He did so. That document recited that forth in the proposed agreement were a union-shop the hotels had made deductions including social security clause, a grievance and arbitration clause, a no-lockout taxes from the compensation paid musicians as an admin- clause, a clause for free parking facilities, additional paid istrative service to band leaders who do not have the holidays, 12 days sick leave each year, a clause providing means and personnel to undertake those tasks. for payment of a Christmas bonus, coverage for family The next meeting was held on January 23. Present for medical expenses, a no-subcontracting-out clause, and the Association were its president, Juan Santoni, its ex- provisions for an increase in the weekly wage scale to ecutive director, Miguel Domenech, its attorney, Mila- $353 in the last of a 3-year contract. gro Soto, and two hotel officials, Roberto Lugo and Nater met with the Respondent Association's repre- Arne Orenstein. For the Union were its president, Nater, sentatives and its legal counsel on December 8, 1978. its treasurer, and a trustee. The Respondent Association Nater testified at the hearing that, to get the negotiations presented its draft of the agreement. Nater and Santoni going then, he signed a letter prepared by the Respond- on behalf of the respective parties initialed a number of ent Association whereby Nater acknowledged that he clauses on that draft to indicate their agreement as to has "reached the moral conviction that the position as- those clauses. The recognition clause as so approved sumed by (the Respondent Associaton) in relation to the read "the hotels recognize the Union as the exclusive issue of whether or not the musicians are employees of representative of all musicians performing within the the hotels is reasonable" and that the Union was willing hotel." (The General Counsel contends that subsequently not to insist on "integrating the musicians as part of the the Respondent Association unilaterally inserted the let- [hotel] labor force" provided agreement could be ters "AFM" before the word "musicians" in that clause reached on a commercial compulsory arbitration clause to suggest that the Union had agreed to represent only in the contract in order to protect the musicians ade- union members; the Respondent Association asserts that quately. the clause was in fact later modified by agreement.) On In late December 1978, when the 1975-78 agreement February 15, the Union and the Respondent Association was scheduled to expire, the Union agreed in a meeting met. The parties reached agreement respecting a "fondo with representatives for the Respondent Association, incentive" whereby the hotels would contribute to a which was also attended by officials from the Puerto fund a certain amount of money each month for musi- Rican Conciliation and Arbitration Bureau, to continue cians to compensate them for days lost because of illness bargaining without calling a strike. and to provide an incentive for a musician not to feign On December 31, 1978, Nater and other union repre- illness and to perform although not perfectly well. Under sentatives met with Louis Puro at his office in the El San this clause, each musician would receive at the end of Juan Hotel and informed him in effect that the Novem- each year the balance of the money credited to him in ber 27 letter the Union received from Sam Sweitzer on that fund. The Union asserts that the hotel in essence behalf of the El San Juan Hotel, the El Conquistador, granted their demand for sick leave pay. The parties and the Palace Hotel was an untimely attempt to avoid reached agreement on a number of other items including associationwide bargaining. Nater said that Puro told increased earnings, or other type pay raises, on the him that he was willing to "deal with the hotel associ- number of vacation days and they also agreed that trav- ation" and that, on Puro's general assurance that things elers shall not be part of the contract. Roberto Lugo 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the earnings of the musicians should not be in variance would be all right, the Union decided not to go on strike with adjustments that "may be directly agreed upon by at the El San Juan hotel. the different hotels with the orchestras leaders perform- Nater testified that on January 8, 1979, he was advised ing under contract in their facilities." (There was no tes- by the Respondent Association's attorneys that the timony that any of the member hotels had direct discus- Union had to withdraw its unfair labor practice charge sions with the leaders thereon from then and until the before negotiations could resume and that the Respond- Union and the Respondent Association ultimately ent Association continued to assert that the hotels were reached a new agreement, as discussed below.) not the employers of the musicians. Nater informed them The Union then filed an unfair labor practice charge that the hotels were in fact the employers of the musi- with Region 24 of the Board. On December 7, its presi- cians; he testified that, nevertheless and in order to be dent, Nater, wrote Domenech and enclosed with his able to negotiate, he accepted the Respondent Associ- letter the Union's new contract proposals. The enclosed ation's demands. documents omitted reference to a "collective bargaining On January 15, when the Union and the Respondent agreement" and simply referred to this "agreement." The Association met again, Nater advised the Respondent proposals therein recited that they shall be applicable to Association that he had not yet withdrawn the unfair the classification of employees listed in the "wage scale, labor practice charge. He was then given a letter by the hours of employment and working conditions" attached Respondent Association and was requested to sign it. He thereto as schedule A and to those who are "employed did so. The letter recited that he had agreed on January within the premises of the hotel whose services are ren- 8 that musicians are not employees of the hotels and that dered into the connection with the entertainment and consequently the Union agreed to withdraw the unfair dancing, all of whom will be [therein] collectively re- labor practice charge it had filed. ferred to as "musicians"-and that "all such musicians On January 22, 1979, the Respondent Association pre- shall be in the bargaining unit covered by this agree- sented Nater with another document and requested that ment." Among the provisions sought by the Union as set he sign that one. He did so. That document recited that forth in the proposed agreement were a union-shop the hotels had made deductions including social security clause, a grievance and arbitration clause, a no-lockout taxes from the compensation paid musicians as an admin- clause, a clause for free parking facilities, additional paid istrative service to band leaders who do not have the holidays, 12 days sick leave each year, a clause providing means and personnel to undertake those tasks. for payment of a Christmas bonus, coverage for family The next meeting was held on January 23. Present for medical expenses, a no-subcontracting-out clause, and the Association were its president, Juan Santoni, its ex- provisions for an increase in the weekly wage scale to ecutive director, Miguel Domenech, its attorney, Mila- $353 in the last of a 3-year contract. gro Soto, and two hotel officials, Roberto Lugo and Nater met with the Respondent Association's repre- Arne Orenstein. For the Union were its president, Nater, sentatives and its legal counsel on December 8, 1978. its treasurer, and a trustee. The Respondent Association Nater testified at the hearing that, to get the negotiations presented its draft of the agreement. Nater and Santoni going then, he signed a letter prepared by the Respond- on behalf of the respective parties initialed a number of ent Association whereby Nater acknowledged that he clauses on that draft to indicate their agreement as to has "reached the moral conviction that the position as- those clauses. The recognition clause as so approved sumed by (the Respondent Associaton) in relation to the read "the hotels recognize the Union as the exclusive issue of whether or not the musicians are employees of representative of all musicians performing within the the hotels is reasonable" and that the Union was willing hotel." (The General Counsel contends that subsequently not to insist on "integrating the musicians as part of the the Respondent Association unilaterally inserted the let- [hotel] labor force" provided agreement could be ters "AFM" before the word "musicians" in that clause reached on a commercial compulsory arbitration clause to suggest that the Union had agreed to represent only in the contract in order to protect the musicians ade- union members; the Respondent Association asserts that quately. the clause was in fact later modified by agreement.) On In late December 1978, when the 1975-78 agreement February 15, the Union and the Respondent Association was scheduled to expire, the Union agreed in a meeting met. The parties reached agreement respecting a "fondo with representatives for the Respondent Association, incentive" whereby the hotels would contribute to a which was also attended by officials from the Puerto fund a certain amount of money each month for musi- Rican Conciliation and Arbitration Bureau, to continue cians to compensate them for days lost because of illness bargaining without calling a strike. and to provide an incentive for a musician not to feign On December 31, 1978, Nater and other union repre- illness and to perform although not perfectly well. Under sentatives met with Louis Puro at his office in the El San this clause, each musician would receive at the end of Juan Hotel and informed him in effect that the Novem- each year the balance of the money credited to him in ber 27 letter the Union received from Sam Sweitzer on that fund. The Union asserts that the hotel in essence behalf of the El San Juan Hotel, the El Conquistador, granted their demand for sick leave pay. The parties and the Palace Hotel was an untimely attempt to avoid reached agreement on a number of other items including associationwide bargaining. Nater said that Puro told increased earnings, or other type pay raises, on the him that he was willing to "deal with the hotel associ- number of vacation days and they also agreed that trav- ation" and that, on Puro's general assurance that things elers shall not be part of the contract. Roberto Lugo PUERTO RICO HOTEL ASSOCIATION 441 signed a memorandum on behalf of the Respondent As- informed Nater that all the Respondent Association's sociation on February 15, as did Nater for the Union, prior offers had been withdrawn. Nater observed that which sets out those areas of agreement. No reference is there were three matters that had created the impasse, made in that memorandum as to the insertion of the let- referring to the (1) guarantees that the hotels would have ters "AFM" in the recognition clause of the contract. specified minimum numbers of employees, (2) salaries, Counsel for the Respondent Association, Maria Soto, and (3) retroactivity of the contract. Santoni said that the explained how those letters came to be included in the hotels had been able to function by having "hired non- final draft of the agreement. She testified that she attend- union members and foreign musicians." Nevertheless, ed the February 15 meeting and that, after Lugo and Santoni said that he would try to get the Respondent As- Nater signed the memorandum of agreement, she had a sociation's board of directors to accept the Union's pro- discussion with Nater respecting problem areas in obtain- posals respecting the guaranteed number of musicians to ing ratification from thc board of directors of the Re- be used by the Class AA hotels. They discussed the re- spondent Association. The notes she had made while at troactivity issue and other matters. When the discussion that meeting were then received in evidence. These re- ended Santoni arranged a meeting with the Respondent flect that Nater indicated that "all musicians was not ac- Associations board of directors to review the points he cepted but AFM was in order to prevent a repetition of and Nter had discussed. the Pat Mills case." The Respondent Association's execu- and Nater a e tive director, Domenech, was unable to recall any of the On April 19, Nter came to the offices of the attorneys particulars of the conversation between Soto and Nater; for the Respondent Association. After discussing the pro- he testified that there was general acceptance of the lan- visions of the incentive fund clause, i.e., that relating to guage changes. Earlier in the hearing, Attorney Soto had benefits for sick leave, used and unused, and discussing observed that the Respondent Association did not make the clause guaranteeing the use of the minimum number the reference to "AFM" musicians to change the makeup of musicians, Nater and Santoni signed "an agreement in of the group covered by the contract as at that time all principle" adopting the agreements reached on February of the local musicians were members of the Union. 15 and on seven further points, including those pertain- It is undisputed that both the members of the Re- ing to the guaranteed number of musicians, salary scales, spondent Association and the Union had to ratify the and retroactivity. There was no reference therein to the agreement before it would go into effect. language of the recognition clause. On April 27, Nater received from the Respondent Association a final draft G. The Union's Ratification Meeting of the agreement dated April 30, 1979, to be effective as Although the Union had over 3,000 members, only of April 19, 1979, for a 3-year period. The recognition about 150 worked in the hotels, a number of whom were clause therein stated that "the hotels recognized the leaders. On February 19, 1979, about 100 of the members Union as the exclusive representative of all AFM musi- who performed in the hotels attended a union meeting to cians performing within the hotels." Nater apparently vote on whether to ratify or reject the agreement took no notice then of the letters AFM. He stated that reached between Respondent Association and the Union he did notice then a discrepancy with respect to the on February 15. Objections were voiced at the union amount of the contributions for the sick leave provisions. meeting based on the failure of the agreement to guaran- He called those figures to the attention of the Respond- tee that a 10-piece orchestra would continue to perform ent Association's representatives and these were correct- at the Condado Holiday Inn, and the fact that the provi- ed. On April 30, he and Santoni signed the contract and sions of the contract were not retroactive to the effective the strike ended. date of the contract and to the amount of the increases On August 7, 1979, a meeting of various members of provided for in the weekly earnings of the musicians. the Respondent Association was held respecting ques- The contract was rejected. A strike vote was proposed. tions as to whether the contractual provisions relating to Jose Juan Pinero, a band leader at the Caribe Hilton their guaranteeing the use of a specified minimum Hotel whom the General Counsel contends is a supervi- number of musicians required them to have a minimum sor there, was present at the meeting and voiced objec- number of AFM musicians or whether the minimum tions to certain members being allowed to participate in number pertained to both union and nonunion musicians. the voting. Another individual, James Stevens, also al- (It appears that, at that time, a number of musicians had leged to have been an agent of a member hotel, objected been dropped from union membership.) The Respondent to a strike vote. The membership nevertheless voted to Association's counsel advised its member hotels then that strike, which began on February 19. It lasted until April 20, 1979, when the respective presidents of the Respond- he minimum guarantee applied to all musicians regard- ent Association and the Union apparently resolved their less of union membership; he further advised the hotels differences as discussed below. that they cannot establish a distinction between musicians that belong to the Union and those who did not and that H. The 1979-81 Contract the hotels "for all purposes do not even inquire whether the musicians are or are not Union musicians." In the middle of April, Nater called the Respondent Association's office and asked to meet with its president, Juan Santoni. This call led to a meeting between Nater and Santoni on April 18 in Santoni's apartment. Santoni PUERTO RICO HOTEL ASSOCIATION 441 signed a memorandum on behalf of the Respondent As- informed Nater that all the Respondent Association's sociation on February 15, as did Nater for the Union, prior offers had been withdrawn. Nater observed that which sets out those areas of agreement. No reference is there were three matters that had created the impasse, made in that memorandum as to the insertion of the let- referring to the (1) guarantees that the hotels would have ters "AFM" in the recognition clause of the contract. specified minimum numbers of employees, (2) salaries, Counsel for the Respondent Association, Maria Soto, and (3) retroactivity of the contract. Santoni said that the explained how those letters came to be included in the hotels had been able to function by having "hired non- final draft of the agreement. She testified that she attend- union members and foreign musicians." Nevertheless, ed the February 15 meeting and that, after Lugo and Santoni said that he would try to get the Respondent As- Nater signed the memorandum of agreement, she had a sociation's board of directors to accept the Union's pro- discussion with Nater respecting problem areas in obtain- posals respecting the guaranteed number of musicians to ing ratification from the board of directors of the Re- be used by the Class AA hotels. They discussed the re- spondent Association. The notes she had made while at troactivity issue and other matters. When the discussion that meeting were then received in evidence. These re- ended, Santoni arranged a meeting with the Respondent fleet that Nater indicated that "all musicians was not ac- Association's board of directors to review the points he cepted but AFM was in order to prevent a repetition of and Nater had discussed. the Pat Mills case." The Respondent Association's execu- an Apr Nad camed. tive director, Domenech, was unable to recall any of the 1 9, N a t e r c a m e t o t h c o ffi c e s o f t h e attorneys particulars of the conversation between Soto and Nater; f o r t h e Respondent Association. After discussing the pro- he testified that there was general acceptance of the lan- visio n s o f the incentive fund clause, i.e., that relating to guage changes. Earlier in the hearing, Attorney Soto had benefits for sick leave, used and unused, and discussing observed that the Respondent Association did not make the clause guaranteeing the use of the minimum number the reference to "AFM" musicians to change the makeup of musicians, Nater and Santoni signed "an agreement in of the group covered by the contract as at that time all principle" adopting the agreements reached on February of the local musicians were members of the Union. 15 and on seven further points, including those pertain- It is undisputed that both the members of the Re- ing to the guaranteed number of musicians, salary scales, spondent Association and the Union had to ratify the and retroactivity. There was no reference therein to the agreement before it would go into effect. language of the recognition clause. On April 27, Nater received from the Respondent Association a final draft G. The Union's Ratification Meeting of the agreement dated April 30, 1979, to be effective as Although the Union had over 3,000 members, only o f A pr i l 19 , 19 7 9 , f o r a 3-year period. The recognition about 150 worked in the hotels, a number of whom were c la u s e therein stated that "the hotels recognized the leaders. On February 19, 1979, about 100 of the members Union a s the exclusive representative of all AFM musi- who performed in the hotels attended a union meeting to cians performing within the hotels." Nater apparently vote on whether to ratify or reject the agreement took no notice then of the letters AFM. He stated that reached between Respondent Association and the Union he did notice then a discrepancy with respect to the on February 15. Objections were voiced at the union amount of the contributions for the sick leave provisions. meeting based on the failure of the agreement to guaran- He called those figures to the attention of the Respond- tee that a 10-piece orchestra would continue to perform ent Association's representatives and these were correct- at the Condado Holiday Inn, and the fact that the provi- ed. On April 30, he and Santoni signed the contract and sions of the contract were not retroactive to the effective the strike ended. date of the contract and to the amount of the increases On August 7, 1979, a meeting of various members of provided for in the weekly earnings of the musicians. the Respondent Association was held respecting ques- The contract was rejected. A strike vote was proposed. tions as to whether the contractual provisions relating to Jose Juan Pinero, a band leader at the Caribe Hilton their guaranteeing the use of a specified minimum Hotel whom the General Counsel contends is a supervi- number of musicians required them to have a minimum sor there, was present at the meeting and voiced objec- number of AFM musicians or whether the minimum tions to certain members being allowed to participate in number pertained to both union and nonunion musicians. the voting. Another individual, James Stevens, also al- (It appears that, at that time, a number of musicians had leged to have been an agent of a member hotel, objected been dropped from union membership.) The Respondent to a strike vote. The membership nevertheless voted to Association's counsel advised its member hotels then that strike, which began on February 19. It lasted until April ssocinimum guntee advied ta musicians regarda 20, 1979, when the respective presidents of the Respond- h e mi*"mum guarantee applied to all musicians regard- ent Association and the Union apparently resolved their l e s s o f u n io n membership; he further advised the hotels differences as discussed below. that they c ann o t establish a distinction between musicians that belong to the Union and those who did not and that H. The 1979-81 Contract the hotels "for all purposes do not even inquire whether . , , . ,, „ ,~~~~~the musicians are or are not Union musicians." In the middle of April, Nater called the Respondent Association's office and asked to meet with its president, Juan Santoni. This call led to a meeting between Nater and Santoni on April 18 in Santoni's apartment. Santoni PUERTO RICO HOTEL ASSOCIATION 441 signed a memorandum on behalf of the Respondent As- informed Nater that all the Respondent Association's sociation on February 15, as did Nater for the Union, prior offers had been withdrawn. Nater observed that which sets out those areas of agreement. No reference is there were three matters that had created the impasse, made in that memorandum as to the insertion of the let- referring to the (1) guarantees that the hotels would have ters "AFM" in the recognition clause of the contract. specified minimum numbers of employees, (2) salaries, Counsel for the Respondent Association, Maria Soto, and (3) retroactivity of the contract. Santoni said that the explained how those letters came to be included in the hotels had been able to function by having "hired non- final draft of the agreement. She testified that she attend- union members and foreign musicians." Nevertheless, ed the February 15 meeting and that, after Lugo and Santoni said that he would try to get the Respondent As- Nater signed the memorandum of agreement, she had a sociation's board of directors to accept the Union's pro- discussion with Nater respecting problem areas in obtain- posals respecting the guaranteed number of musicians to ing ratification from the board of directors of the Re- be used by the Class AA hotels. They discussed the re- spondent Association. The notes she had made while at troactivity issue and other matters. When the discussion that meeting were then received in evidence. These re- ended, Santoni arranged a meeting with the Respondent fleet that Nater indicated that "all musicians was not ac- Association's board of directors to review the points he cepted but AFM was in order to prevent a repetition of and Nater had discussed. the Pat Mills case." The Respondent Association's execu- an Apr Nad camed. tive director, Domenech, was unable to recall any of the °" Apnl 1 9, N a t e r c a m e t o t h c o ffi c e s o f t h e ""orneys particulars of the conversation between Soto and Nater; fo r t h e Respondent Association. After discussing the pro- he testified that there was general acceptance of the lan- visio n s o f the incentive fund clause, i.e., that relating to guage changes. Earlier in the hearing, Attorney Soto had benefits for sick leave, used and unused, and discussing observed that the Respondent Association did not make the clause guaranteeing the use of the minimum number the reference to "AFM" musicians to change the makeup of musicians, Nater and Santoni signed "an agreement in of the group covered by the contract as at that time all principle" adopting the agreements reached on February of the local musicians were members of the Union. 15 and on seven further points, including those pertain- It is undisputed that both the members of the Re- ing to the guaranteed number of musicians, salary scales, spondent Association and the Union had to ratify the and retroactivity. There was no reference therein to the agreement before it would go into effect. language of the recognition clause. On April 27, Nater received from the Respondent Association a final draft G. The Union's Ratification Meeting of the agreement dated April 30, 1979, to be effective as Although the Union had over 3,000 members, only o f April 19, 1979, for a 3-year period. The recognition about 150 worked in the hotels, a number of whom were c la u s e therein stated that "the hotels recognized the leaders. On February 19, 1979, about 100 of the members Union a s the exclusive representative of all AFM musi- who performed in the hotels attended a union meeting to cians performing within the hotels." Nater apparently vote on whether to ratify or reject the agreement took no notice then of the letters AFM. He stated that reached between Respondent Association and the Union he did notice then a discrepancy with respect to the on February 15. Objections were voiced at the union amount of the contributions for the sick leave provisions. meeting based on the failure of the agreement to guaran- He called those figures to the attention of the Respond- tee that a 10-piece orchestra would continue to perform ent Association's representatives and these were correct- at the Condado Holiday Inn, and the fact that the provi- ed. On April 30, he and Santoni signed the contract and sions of the contract were not retroactive to the effective the strike ended. date of the contract and to the amount of the increases On August 7, 1979, a meeting of various members of provided for in the weekly earnings of the musicians. the Respondent Association was held respecting ques- The contract was rejected. A strike vote was proposed. tions as to whether the contractual provisions relating to Jose Juan Pinero, a band leader at the Caribe Hilton their guaranteeing the use of a specified minimum Hotel whom the General Counsel contends is a supervi- number of musicians required them to have a minimum sor there, was present at the meeting and voiced objec- number of AFM musicians or whether the minimum tions to certain members being allowed to participate in number pertained to both union and nonunion musicians. the voting. Another individual, James Stevens, also al- (It appears that, at that time, a number of musicians had leged to have been an agent of a member hotel, objected been dropped from union membership.) The Respondent to a strike vote. The membership nevertheless voted to Association's counsel advised its member hotels then that strike, which began on February 19. It lasted until April ssocinimum guntee advied ta musicians regarda 20, 1979, when the respective presidents of the Respond- h e minimum guarantee applied to all musicians regard- ent Association and the Union apparently resolved their l es s o f u n io n membership; he further advised the hotels differences as discussed below. that they c a n no t establish a distinction between musicians that belong to the Union and those who did not and that H. The 1979-81 Contract the hotels "for all purposes do not even inquire whether . , , . ,, „ ,~~~~~the musicians are or are not Union musicians." In the middle of April, Nater called the Respondent Association's office and asked to meet with its president, Juan Santoni. This call led to a meeting between Nater and Santoni on April 18 in Santoni's apartment. Santoni PUERTO RICO HOTEL ASSOCIATION 441 signed a memorandum on behalf of the Respondent As- informed Nater that all the Respondent Association's sociation on February 15, as did Nater for the Union, prior offers had been withdrawn. Nater observed that which sets out those areas of agreement. No reference is there were three matters that had created the impasse, made in that memorandum as to the insertion of the let- referring to the (1) guarantees that the hotels would have ters "AFM" in the recognition clause of the contract. specified minimum numbers of employees, (2) salaries, Counsel for the Respondent Association, Maria Soto, and (3) retroactivity of the contract. Santoni said that the explained how those letters came to be included in the hotels had been able to function by having "hired non- final draft of the agreement. She testified that she attend- union members and foreign musicians." Nevertheless, ed the February 15 meeting and that, after Lugo and Santoni said that he would try to get the Respondent As- Nater signed the memorandum of agreement, she had a sociation's board of directors to accept the Union's pro- discussion with Nater respecting problem areas in obtain- posals respecting the guaranteed number of musicians to ing ratification from the board of directors of the Re- be used by the Class AA hotels. They discussed the re- spondent Association. The notes she had made while at troactivity issue and other matters. When the discussion that meeting were then received in evidence. These re- ended, Santoni arranged a meeting with the Respondent fleet that Nater indicated that "all musicians was not ac- Association's board of directors to review the points he cepted but AFM was in order to prevent a repetition of and Nater had discussed. the Pat Mills case." The Respondent Association's execu- an Apr Nad camed. tive director, Domenech, was unable to recall any of the °" Apnl 19, Nater came to the offices of the attorneys particulars of the conversation between Soto and Nater; fo r t h e Respondent Association. After discussing the pro- he testified that there was general acceptance of the lan- visio n s o f the incentive fund clause, i.e., that relating to guage changes. Earlier in the hearing, Attorney Soto had benefits for sick leave, used and unused, and discussing observed that the Respondent Association did not make the clause guaranteeing the use of the minimum number the reference to "AFM" musicians to change the makeup of musicians, Nater and Santoni signed "an agreement in of the group covered by the contract as at that time all principle" adopting the agreements reached on February of the local musicians were members of the Union. 15 and on seven further points, including those pertain- It is undisputed that both the members of the Re- ing to the guaranteed number of musicians, salary scales, spondent Association and the Union had to ratify the and retroactivity. There was no reference therein to the agreement before it would go into effect. language of the recognition clause. On April 27, Nater received from the Respondent Association a final draft G. The Union's Ratification Meeting of the agreement dated April 30, 1979, to be effective as Although the Union had over 3,000 members, only o f April 19, 1979, for a 3-year period. The recognition about 150 worked in the hotels, a number of whom were c la u s e therein stated that "the hotels recognized the leaders. On February 19, 1979, about 100 of the members Union a s the exclusive representative of all AFM musi- who performed in the hotels attended a union meeting to cians performing within the hotels." Nater apparently vote on whether to ratify or reject the agreement took no notice then of the letters AFM. He stated that reached between Respondent Association and the Union he did notice then a discrepancy with respect to the on February 15. Objections were voiced at the union amount of the contributions for the sick leave provisions. meeting based on the failure of the agreement to guaran- He called those figures to the attention of the Respond- tee that a 10-piece orchestra would continue to perform ent Association's representatives and these were correct- at the Condado Holiday Inn, and the fact that the provi- ed. On April 30, he and Santoni signed the contract and sions of the contract were not retroactive to the effective the strike ended. date of the contract and to the amount of the increases On August 7, 1979, a meeting of various members of provided for in the weekly earnings of the musicians. the Respondent Association was held respecting ques- The contract was rejected. A strike vote was proposed. tions as to whether the contractual provisions relating to Jose Juan Pinero, a band leader at the Caribe Hilton their guaranteeing the use of a specified minimum Hotel whom the General Counsel contends is a supervi- number of musicians required them to have a minimum sor there, was present at the meeting and voiced objec- number of AFM musicians or whether the minimum tions to certain members being allowed to participate in number pertained to both union and nonunion musicians. the voting. Another individual, James Stevens, also al- (It appears that, at that time, a number of musicians had leged to have been an agent of a member hotel, objected been dropped from union membership.) The Respondent to a strike vote. The membership nevertheless voted to Association's counsel advised its member hotels then that strike, which began on February 19. It lasted until April ssocinimum guntee advied ta musicians regarda 20, 1979, when the respective presidents of the Respond- h e minimum guarantee applied to all musicians regard- ent Association and the Union apparently resolved their l es s o f u n io n membership; he further advised the hotels differences as discussed below. that they c anno t establish a distinction between musicians that belong to the Union and those who did not and that H. The 1979-81 Contract the hotels "for all purposes do not even inquire whether . , , . ,, „ ,~~~~~the musicians are or are not Union musicians." In the middle of April, Nater called the Respondent Association's office and asked to meet with its president, Juan Santoni. This call led to a meeting between Nater and Santoni on April 18 in Santoni's apartment. Santoni 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Further Discussion Between the Union and the the ends to be achieved but also the means to be used to Owner of the El San Juan, El Conquistador, and achieve such ends.9 All of the facts must be analyzed in Palace Hotels applying the test.' 0 Each case is determined on its own Louis Puro owns these three hotels and actively par- facts." It is the right, not the exercise of control, that is ticipates in their operations. He has controlled the El San important. 2 The test applies to individuals who may be Juan Hotel for 19 years, the El Conquistador for 15 supervisors as well as to those who may be employees." years, and the Palace Hotel for 2 years. While the test may be simple to state, it is not easy to The Union's president, Nater, testified that on April pply- 30, 1979, he met with Puro and Samuel Sweitzer, presi- Respective counsel for the Respondents considered dent of the El San Juan Hotel. Nater said that Sweitzer and discussed the relevant factors set out in Restatement had told him that he had read the proposals sent him by of Agency 2d, §220, in applying the common law agency the attorney for the Respondent Association and that he test to the facts in the instant case. This approach seems believed they were acceptable. According to Nater, Puro to me to be a sound one as it permits a detailed consider- then said that he did not know about that but, after fur- ation of those factors in conjunction with the comments ther discussion, Puro agreed to guarantee that the El San provided in the Restatement. My evaluation of the evi- Juan and the Palace would jointly use a minimum of 18 dence in the context of those factors, as discussed below, musicians. Nater related that he and Puro discussed the does not accord with the arguments they urge, however. employment of nine musicians, a matter now the subject I am aware that the applicable common law agency of a separate civil action in Puerto Rico. test was developed in tort cases to decide issues as to the liability of a master where a negligent act was committed J. Use of Personal Services Contracts by an individual, other than one of his regular servants, It is undisputed that the Respondent Association has whom he had used in performing a service for him. On recommended that its member hotels use a new form of that premise, it would seem that my determination in this contract to be signed by them with their leaders which case should be based on the very same concept. That is, states that the leader is the employer of the musicians not a s te ad y engagement musician in a Class AA hotel the hotels. It is also clear that the Condado Holiday Inn, w o u ld be an employee covered by the Act if that ho t e l the Caribe Hilton, El San Juan, El Conquistador, and the were held to be liable for a negligent act by that musi- cian during a performance at the hotel and which caused Palace hotels have, since the execution of the last agree- c a n d ur n g a peroranc at the hotel and which caused ment, been using that form of contract or one similar to injury to a patron; conversely, if the hotel were exoner- it 7 ated from liability for such negligence by the musician, the musician would be an independent contractor. ' That I11. ANALYSIS OF EVIDENCE AS TO ALLEGED may be an awkward way to view the issue but I believe REFUSALS TO BARGAIN that it does put the specific issue in its proper legal per- spective. That is not to say, however, that my determina- A. The Employee vs Independent Contractor Issue tion must be identical to the results of such a tort action. The parties in their respective briefs have discussed The Restatement of Agency, 2d, observes that where the inference to be drawn from the relevant facts (as to the guidelines I am to use in deciding whether or not the n fere n e t o b e d ra w n fro m h e r le v an t fac t s (as t o steady engagement musicians in Class AA hotels are em- whether or not an independent contractor or a master- steady engagement musicians in Class AA hotels are em- ployees as defined in the Act or are excluded thereform servant relationship exists) is clear, the court should decide the matter as purely a legal issue; if the inference as independent contractors. It will be helpful to state d ec id e t h e m a tt e r as p u el y a l eg al issue; i e infer en e those guidelines. Thus, the common law agency test to be drawn is not so clear, the issue should be submitted must be applied.' Under this test, an employer-employee to the jury for a factual determination pursuant to appro- relationship exists where the person for whom the serv- priate instructions. In the instant case, I do not think it ices are performed reserves the right to control not only can be said as a matter of law that the inference to be drawn from the testimony respecting the status of the The Caribe Hilton has used the services of a booking agent, Jimmy musicians as employees or as independent contractors is Stevens, to handle the bookkeeping and the disbursement of paychecks to clear. Rather, and as is evident from the discussion musicians. Thus, it pays Stevens each week a lump sum of the total of the below, I think that reasonable men may differ thereon. moneys due the musicians and gives him its records as to the hours they Consequently, the issue involves a factual determina- worked, including overtime. The payment to Stevens also includes a commission for himself. Stevens then draws checks on his own account tion. 1 In deliberating on the question, I have considered to pay the musicians each week and transmits taxes and other required deductions to the appropriate authorities. Deaton Truck Lines Inc., 143 NLRB 1372 (1963). * N.LR.B v. United Insurance Company of America, 390 U.S. 254 O Yellow Cab Company, 229 NLRB 1329, 1332 (1977). (1968). In that case, the Court discussed its holding in N.LR.B. v. Hearst Georgia Pacific Corporation, 249 NLRB 1388 (1980). Publications Inc., 322 U.S. II1 (1944), where it had approved the Board's 2 Nevada Resort Association Summa Corporation, d/b/a Castaways holding that the Act had been intended to cover "employees in the con- Hotel. et al., 250 NLRB 626 (1980). ventional as well as the legal sense. . ." as "the primary consideration" "Deaton Truck Lines, Inc., supra. was whether the purpose of the Act would be effectuated by providing 4 N.LR.B. v. Hearst Publication. supra. tothe individuals whose status was in dispute (i.e., newsboys alleged to be ' 5 The same rationale would apply to a leader of a musical group at a independent contractors) the protection guaranteed by the Act. The Class AA hotel. The issue then would be whether he was a supervisory Court further observed that since the issuance of the decision in that employee or an independent contractor. Cf. Deaton Truck Lines, supra. case, the Hearst case, the Act itself was amended to reflect the intent of " In N.L.R.B. v. United Insurance Co. of America, et al., 390 U.S. 254 Congress that the common law agency test would control in determining (1968), the Court viewed the employee vs. independent contractor issue whether individuals are employees or independent contractors. as essentially factual and on that basis affirmed the Board's holding. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Further Discussion Between the Union and the the ends to be achieved but also the means to be used to Owner of the El San Juan, El Conquistador, and achieve such ends." All of the facts must be analyzed in Palace Hotels applying the test. 10 Each case is determined on its own Louis Puro owns these three hotels and actively par- f ac t s." It i s t h e ri gh t, not the exercise of control, that is ticipates in their operations. He has controlled the El San important.2 T he test applies to individuals who may be Juan Hotel for 19 years, the El Conquistador for 15 su p er v iso r s a s w e ll as t o t h o se w ho may be employees." years, and the Palace Hotel for 2 years. While the test may be simple to state, it is not easy to The Union's president, Nater, testified that on April apply. 1 30, 1979, he met with Puro and Samuel Sweitzer, presi- Respective counsel for the Respondents considered dent of the El San Juan Hotel. Nater said that Sweitzer and discussed the relevant factors set out in Restatement had told him that he had read the proposals sent him by o f Agency 2d, §220, in applying the common law agency the attorney for the Respondent Association and that he t est t o t h e facts in the instant case. This approach seems believed they were acceptable. According to Nater, Puro t o me to be a sound one as it permits a detailed consider- then said that he did not know about that but, after fur- ation o f th os e factors in conjunction with the comments ther discussion, Puro agreed to guarantee that the El San provided in the Restatement. My evaluation of the evi- Juan and the Palace would jointly use a minimum of 18 dence in the context of those factors, as discussed below, musicians. Nater related that he and Puro discussed the does not accord with the arguments they urge, however. employment of nine musicians, a matter now the subject I am aware that the applicable common law agency of a separate civil action in Puerto Rico. test was developed in tort cases to decide issues as to the liability of a master where a negligent act was committed J. Use of Personal Services Contracts by an individual, other than one of his regular servants, It is undisputed that the Respondent Association has w h o m he had u s ed in performing a service for him. On recommended that its member hotels use a new form of t h at premise, it w o u l d s ee m t h at m y determination in this contract to be signed by them with their leaders which c as e s h o u ld b e bas ed on t h e v er y s am e concept. T h a t is, states that the leader is the employer of the musicians not a s te ad y engagement musician in a Class AA hotel the hotels. It is also clear that the Condado Holiday Inn, w o u ld b e a n employee c o v er ed b y t h e A c t if t h a t ho t e l the Caribe Hilton, El San Juan, El Conquistador, and the w er e h el d t o b e l iab le f o r a negligen t ac t b y t h at m u si- Palace hotels have, since the execution of the last agree- ci an d u r n g a Performance at the hotel and which caused ment, been using that form of contract or one similar to l n j u ry t o pB11 ; conversely, if the hotel were exoner- it. 7ated from liability for such negligence by the musician, the musician would be an independent contractor. " That Ill. ANALYSIS OF EVIDENCE AS TO ALLEGED may be an awkward way to view the issue but I believe REFUSALS TO BARGAIN that it does put the specific issue in its proper legal per- spective. That is not to say, however, that my determina- A. The Employee vs, Independent Contractor Issue tion must be identical to the results of such a tort action. The parties in their respective briefs have discussed T h e statement of Agency, 2d observes that where the the guidelines I am to use in deciding whether or not the in f er e nce t o b e d r a w n f ro m h e rele v an t f ac t s ( as t o steady engagement musicians in Class AA hotels are em- w h et h er o r n o t an independent contractor or a master- ployees as defined in the Act or are excluded thereform servant relationship exists) is clear, the court should as independent contractors. It will be helpful to state d ec id e t h e m a tt e r as p u el y a l eg al issu e ; i th n c those guidelines. Thus, the common law agency test to b e d r aw n is no t s o clear , t h e iss u e sh o u l d be su b m it t ed must be applied.' Under this test, an employer-employee t o t he j u r y f o r a factual determination pursuant to appro- relationship exists where the person for whom the serv- p r iat e instructions. In the instant case, I do not think it ices are performed reserves the right to control not only c an b e s aid as a m a tt e r o f law t ha t the inference to be drawn from the testimony respecting the status of the 'The Caribe Hilton has used the services of a booking agent. Jimmy musicians as employees or as independent contractors is Stevens, to handle the bookkeeping and the disbursement of paychecks to clear. Rather, and as is evident from the discussion musicians. Thus, it pays Stevens each week a lump sum of the total of the below, I think that reasonable men may differ thereon. moneys due the musicians and gives him its records as to the hours they Consequently, the issue involves a factual determina- worked, including overtime. The payment to Stevens also includes a commission for himself. Stevens then draws checks on his own account ti o n .11 I n deliberating on the question, I have considered to pay the musicians each week and transmits taxes and other required deductions to the appropriate authorities. Dealon Truck Lines Inc., 143 NLRB 1372 (1963). * N.L.R.B v. United Insurance Company of America, 390 U.S. 254 ° Yellow Cab Company, 229 NLRB 1329, 1332 (1977). (1968). In that case, the Court discussed its holding in N.L.R.B. v. Hears't Georgia Pacific Corporation, 249 NLRB 1388 (1980). Publications, Inc., 322 U.S. III (1944), where it had approved the Board's 2 Nevada Resort Association; Summi Corporation, d/b/a Castaways holding that the Act had been intended to cover "employees in the con- Hotel. et al., 250 NLRB 626 (1980). vcntional as well as the legal sense .. ." as "the primary consideration" ' Dealon Truck Lines, Inc., supra. was whether the purpose of the Act would be effectuated by providing N.L R.B. v. Hearst Publication. supra. tothe individuals whose status was in dispute (i.e., newsboys alleged to be The same rationale would apply to a leader of a musical group at a independent contractors) the protection guaranteed by the Act. The Class AA hotel. The issue then would be whether he was a supervisory Court further observed that since the issuance of the decision in that employee or an independent contractor. Cf. Dealon Truck Lines, supra. case, the Hearst case, the Act itself was amended to reflect the intent of * In N.L.R.B. v. United Insurance Co. ofAmerica, et al., 390 U.S. 254 Congress that the common law agency test would control in determining (1968), the Court viewed the employee vs. independent contractor issue whether individuals are employees or independent contractors. as essentially factual and on that basis affirmed the Board's holding. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Further Discussion Between the Union and the the ends to be achieved but also the means to be used to Owner of the El San Juan, El Conquistador, and achieve such ends." All of the facts must be analyzed in Palace Hotels applying the test. 10 Each case is determined on its own Louis Puro owns these three hotels and actively par- f ac t s." It i s t h e right, not the exercise of control, that is ticipates in their operations. He has controlled the El San important.2 The test applies to individuals who may be Juan Hotel for 19 years, the El Conquistador for 15 su p er v iso r s a s w e ll as t o t h o se w ho may be employees." years, and the Palace Hotel for 2 years. While the test may be simple to state, it is not easy to The Union's president, Nater, testified that on April apply. 1 30, 1979, he met with Puro and Samuel Sweitzer, presi- Respective counsel for the Respondents considered dent of the El San Juan Hotel. Nater said that Sweitzer and discussed the relevant factors set out in Restatement had told him that he had read the proposals sent him by of Agency 2d, §220, in applying the common law agency the attorney for the Respondent Association and that he t est t o t h e facts in the instant case. This approach seems believed they were acceptable. According to Nater, Puro t o me to be a sound one as it permits a detailed consider- then said that he did not know about that but, after fur- ation of those factors in conjunction with the comments ther discussion, Puro agreed to guarantee that the El San provided in the Restatement. My evaluation of the evi- Juan and the Palace would jointly use a minimum of 18 dence in the context of those factors, as discussed below, musicians. Nater related that he and Puro discussed the does not accord with the arguments they urge, however. employment of nine musicians, a matter now the subject I am aware that the applicable common law agency of a separate civil action in Puerto Rico. test was developed in tort cases to decide issues as to the liability of a master where a negligent act was committed J. Use of Personal Services Contracts by an individual, other than one of his regular servants, It is undisputed that the Respondent Association has w h o m he had u s ed in performing a service for him. On recommended that its member hotels use a new form of t h at premise, it w o u l d s ee m t h at m y determination in this contract to be signed by them with their leaders which c as e s h o u ld b e bas ed on t h e v er y s am e concept. T h a t is, states that the leader is the employer of the musicians not a s te ad y engagement musician in a Class AA hotel the hotels. It is also clear that the Condado Holiday Inn, w o u ld b e a n employee c o v er ed b y t h e A c t if t h a t ho t e l the Caribe Hilton, El San Juan, El Conquistador, and the w er e h el d t o b e liable for a negligent act by that musi- Palace hotels have, since the execution of the last agree- ci an d u r n g a Performance at the hotel and which caused ment, been using that form of contract or one similar to l n j u ry t o pB11 ; conversely, if the hotel were exoner- it. 7ated from liability for such negligence by the musician, the musician would be an independent contractor. " That Ill. ANALYSIS OF EVIDENCE AS TO ALLEGED may be an awkward way to view the issue but I believe REFUSALS TO BARGAIN that it does put the specific issue in its proper legal per- spective. That is not to say, however, that my determina- A. The Employee vs, Independent Contractor Issue tion must be identical to the results of such a tort action. The parties in their respective briefs have discussed T h e statement of Agency, 2d observes that where the the guidelines I am to use in deciding whether or not the in f er e nce t o b e d r a w n f ro m h e rele v an t f ac t s ( as t o steady engagement musicians in Class AA hotels are em- w h et h er o r n o t an independent contractor or a master- ployees as defined in the Act or are excluded thereform servant relationship exists) is clear, the court should as independent contractors. It will be helpful to state d ec id e t h e m a tt e r as p u el y a l eg al issu e ; i th n c those guidelines. Thus, the common law agency test to b e d r aw n is no t s o clear , t h e iss u e sh o u l d be su b m it t ed must be applied.' Under this test, an employer-employee t o t he j u r y f o r a factual determination pursuant to appro- relationship exists where the person for whom the serv- p r iat e instructions. In the instant case, I do not think it ices are performed reserves the right to control not only c an b e s aid as a m a tt e r o f law t ha t the inference to be drawn from the testimony respecting the status of the 'The Caribe Hilton has used the services of a booking agent. Jimmy musicians as employees or as independent contractors is Stevens, to handle the bookkeeping and the disbursement of paychecks to clear. Rather, and as is evident from the discussion musicians. Thus, it pays Stevens each week a lump sum of the total of the below, I think that reasonable men may differ thereon. moneys due the musicians and gives him its records as to the hours they Consequently, the issue involves a factual determina- worked, including overtime. The payment to Stevens also includes a commission for himself. Stevens then draws checks on his own account ti o n .11 I n deliberating on the question, I have considered to pay the musicians each week and transmits taxes and other required deductions to the appropriate authorities. Dealon Truck Lines Inc., 143 NLRB 1372 (1963). * N.L.R.B v. United Insurance Company of America, 390 U.S. 254 ° Yellow Cab Company, 229 NLRB 1329, 1332 (1977). (1968). In that case, the Court discussed its holding in N.L.R.B. v. Hears't Georgia Pacific Corporation, 249 NLRB 1388 (1980). Publications, Inc., 322 U.S. III (1944), where it had approved the Board's 2 Nevada Resort Association; Summi Corporation, d/b/a Castaways holding that the Act had been intended to cover "employees in the con- Hotel. et al., 250 NLRB 626 (1980). vcntional as well as the legal sense .. ." as "the primary consideration" ' Dealon Truck Lines, Inc., supra. was whether the purpose of the Act would be effectuated by providing N.L R.B. v. Hearst Publication. supra. tothe individuals whose status was in dispute (i.e., newsboys alleged to be The same rationale would apply to a leader of a musical group at a independent contractors) the protection guaranteed by the Act. The Class AA hotel. The issue then would be whether he was a supervisory Court further observed that since the issuance of the decision in that employee or an independent contractor. Cf. Dealon Truck Lines, supra. case, the Hearst case, the Act itself was amended to reflect the intent of * In N.L.R.B. v. United Insurance Co. ofAmerica, et al., 390 U.S. 254 Congress that the common law agency test would control in determining (1968), the Court viewed the employee vs. independent contractor issue whether individuals are employees or independent contractors. as essentially factual and on that basis affirmed the Board's holding. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Further Discussion Between the Union and the the ends to be achieved but also the means to be used to Owner of the El San Juan, El Conquistador, and achieve such ends." All of the facts must be analyzed in Palace Hotels applying the test. 10 Each case is determined on its own Louis Puro owns these three hotels and actively par- f ac t s." It i s t h e right, not the exercise of control, that is ticipates in their operations. He has controlled the El San important.2 The test applies to individuals who may be Juan Hotel for 19 years, the El Conquistador for 15 sup e rvisors a s w e ll as t o t h o se w ho m ay be employees." years, and the Palace Hotel for 2 years. While the test may be simple to state, it is not easy to The Union's president, Nater, testified that on April apply. " 30, 1979, he met with Puro and Samuel Sweitzer, presi- Respective counsel for the Respondents considered dent of the El San Juan Hotel. Nater said that Sweitzer and discussed the relevant factors set out in Restatement had told him that he had read the proposals sent him by of Agency 2d, §220, in applying the common law agency the attorney for the Respondent Association and that he t est t o t h e facts in the instant case. This approach seems believed they were acceptable. According to Nater, Puro t o me to be a sound one as it permits a detailed consider- then said that he did not know about that but, after fur- ation of those factors in conjunction with the comments ther discussion, Puro agreed to guarantee that the El San provided in the Restatement. My evaluation of the evi- Juan and the Palace would jointly use a minimum of 18 dence in the context of those factors, as discussed below, musicians. Nater related that he and Puro discussed the does not accord with the arguments they urge, however. employment of nine musicians, a matter now the subject I am aware that the applicable common law agency of a separate civil action in Puerto Rico. test was developed in tort cases to decide issues as to the liability of a master where a negligent act was committed J. Use of Personal Services Contracts by an individual, other than one of his regular servants, It is undisputed that the Respondent Association has w h o m he had u s ed in performing a service for him. On recommended that its member hotels use a new form of t h at premise, it w o u l d s ee m t h at m y determination in this contract to be signed by them with their leaders which c as e s h o u ld b e bas ed on t h e very s am e concept. T h a t is, states that the leader is the employer of the musicians not a s te ad y engagement musician in a Class AA hotel the hotels. It is also clear that the Condado Holiday Inn, w o u ld b e a n employee c o v er ed b y t h e A c t if t h a t ho t e l the Caribe Hilton, El San Juan, El Conquistador, and the w er e h el d t o b e liable for a negligent act by that musi- Palace hotels have, since the execution of the last agree- ci an d u r n g a Performance at the hotel and which caused ment, been using that form of contract or one similar to l n j u ry t o pB11 ; conversely, if the hotel were exoner- it. 7ated from liability for such negligence by the musician, the musician would be an independent contractor. " That Ill. ANALYSIS OF EVIDENCE AS TO ALLEGED may be an awkward way to view the issue but I believe REFUSALS TO BARGAIN that it does put the specific issue in its proper legal per- spective. That is not to say, however, that my determina- A. The Employee vs, Independent Contractor Issue tion must be identical to the results of such a tort action. The parties in their respective briefs have discussed T h e statement of Agency, 2d observes that where the the guidelines I am to use in deciding whether or not the in f er e nce t o b e d r a w n f ro m h e rele v an t f ac t s ( as t o steady engagement musicians in Class AA hotels are em- w h et h er o r n o t an independent contractor or a master- ployees as defined in the Act or are excluded thereform servant relationship exists) is clear, the court should as independent contractors. It will be helpful to state d ec id e t h e m a tt e r as p u el y a l eg al issu e ; i th n c those guidelines. Thus, the common law agency test to b e d r aw n is no t s o clear , t h e iss u e sh o u l d be su b m it t ed must be applied.' Under this test, an employer-employee t o t he j u r y f o r a factual determination pursuant to appro- relationship exists where the person for whom the serv- p r iat e instructions. In the instant case, I do not think it ices are performed reserves the right to control not only c an b e s aid as a m a tt e r o f law t ha t the inference to be drawn from the testimony respecting the status of the 'The Caribe Hilton has used the services of a booking agent. Jimmy musicians as employees or as independent contractors is Stevens, to handle the bookkeeping and the disbursement of paychecks to clear. Rather, and as is evident from the discussion musicians. Thus, it pays Stevens each week a lump sum of the total of the below, I think that reasonable men may differ thereon. moneys due the musicians and gives him its records as to the hours they Consequently, the issue involves a factual determina- worked, including overtime. The payment to Stevens also includes a commission for himself. Stevens then draws checks on his own account ti o n .11 I n deliberating on the question, I have considered to pay the musicians each week and transmits taxes and other required deductions to the appropriate authorities. Dealon Truck Lines Inc., 143 NLRB 1372 (1963). * N.L.R.B v. United Insurance Company of America, 390 U.S. 254 ° Yellow Cab Company, 229 NLRB 1329, 1332 (1977). (1968). In that case, the Court discussed its holding in N.L.R.B. v. Hears't Georgia Pacific Corporation, 249 NLRB 1388 (1980). Publications, Inc., 322 U.S. III (1944), where it had approved the Board's 2 Nevada Resort Association; Summi Corporation, d/b/a Castaways holding that the Act had been intended to cover "employees in the con- Hotel. et al., 250 NLRB 626 (1980). vcntional as well as the legal sense .. ." as "the primary consideration" ' Dealon Truck Lines, Inc., supra. was whether the purpose of the Act would be effectuated by providing N.L R.B. v. Hearst Publication. supra. tothe individuals whose status was in dispute (i.e., newsboys alleged to be The same rationale would apply to a leader of a musical group at a independent contractors) the protection guaranteed by the Act. The Class AA hotel. The issue then would be whether he was a supervisory Court further observed that since the issuance of the decision in that employee or an independent contractor. Cf. Dealon Truck Lines, supra. case, the Hearst case, the Act itself was amended to reflect the intent of * In N.L.R.B. v. United Insurance Co. ofAmerica, et al., 390 U.S. 254 Congress that the common law agency test would control in determining (1968), the Court viewed the employee vs. independent contractor issue whether individuals are employees or independent contractors. as essentially factual and on that basis affirmed the Board's holding. PUERTO RICO HOTEL ASSOCIATION 443 the factors viewed by the Restatement as appropriate for room, and that they invite guests to suggest the songs to that purpose. These are now discussed according to the be played. I also have no doubt that they would never headings used in the Restatement: consider refusing to comply with a maitre d's wishes. The record is replete in this case with examples of the 1. Extent of control control exercised by a Class AA hotel vis-a-vis the musi- The Respondents stress the fact that none of the cians. It schedules the days and hours of work of the hotels' top or middle management officials-the general musicians, assigns them to the rooms in which they per- manager, the food and beverage manager, and so on- form, approves the vacation requests of the leaders and have the technical competence to direct a band with re- not infrequently also those of the sidemen in their spect to tempo and other musical attributes. The General groups, restricts them from using the gambling casino be- Counsel and the Charging Party places considerable tween musical sets, directs them to rehearse with fea- weight on the testimony that the managers of the Class tured performers and schedules their hours of rehearsal, AA hotels insist on a particular dinner-dance style of prohibits them from leaving their musical instruments music to blend in with the character that these hotels against a wall, requires them to wear appropriate attire strive to achieve for purposes of attracting patronage and to fit in with the ambiance of the room, reduces the on other testimony that the hotels possess and exercise number of musicians in a group where feasible in its significant control over the musicians in scheduling their judgment, insists on a leader remaining on the bandstand workhours and overtime, in changing work locations, in to accept applause, and so on. The hotels control the regulating the volume of the music, and in the conduct style of the music as they require soft background music and appearance of the musicians. during dinner, livelier dancing music afterwards, fol- The comment set out in the Restatement states that the lowed by playing sheet music for featured performers, right of control needed to establish the relation of master and in the late hours more dance music. One leader testi- and servant may be very attenuated, that in some cases fled that he had a 15-piece orchestra which played vi- there may be an understanding that an employer shall brant Latin-American music on club dates; i.e., a one- not exercise control, citing as an example the status of a night concert or the like. When he began as a leader of a full-time cook as a servant, although it is understood that band in a Class AA hotel, he kept only six of the musi- the employer will exercise no control over the cooking. cians and had to hire four others. In addition, he had to On that basis and because of the nature of the evidence modify his musical style so that it became indistinguish- presented, I give more weight to the areas relied on by able from the style played by all other -pece hotel the General Counsel. The hotel management sets the am- bands in Puerto Rico. biance of the room and, through subordinates, including the respective maitre d's, the preparation and service of Respondents argue that the contracts between the food and beverages is blended with the decor of the hotels and the leaders in essence provide for all the fore- room and the entertainment provided therein to achieve going. As I understand it, they are asserting that, because a unified object-to provide a delightful evening for its the band is performing in accordance with the contract guests. The testimony of a witness called by the Re- its leader signed with the hotel, the musicians are con- spondent Association is worthy of note in that regard. tractors whose skills make them independent. That is not Jimmy Stevens, a bandleader-booking agent-entrepreneur all that is to be evaluated. The Restatement clearly idi- with many years of experience in Puerto Rico, stated the cates that what is being evaluated is the relationship of maitre d' of a room where music is provided to accom- the parties arising out of their agreement. No one sug- pany food and beverage service is "the boss of his room gests that the master-servant relationship as viewed in [and] coordinates the elements that go towards a success- modern agency law retains the elements of serfdom out ful presentation of food and entertainment [and he] has of which the common law principle evolved. It is as- full operational authority within his specific room." Tes- sumed that the relationship is a consensual one and that timony of other witnesses which I credit further estab- the agreement could well be in writing. The matter lishes that the maitre d' can and does direct leaders to before me is, as the Restatement indicates, the determina- lower the volume of the music if he considers it too loud tion as to the nature of the relationship. to permit guests to talk while eating. The maitre d' can Respecting the element of control, the Respondents stop the music to speed up service, he can instruct the point to record testimony that the leaders do the hiring leader to have the musical group work overtime, and he and firing of sidemen in their respective groups, that the occasionally has the band play a particular style of music musicians do not file the standard employment applica- to appeal to a party of guests; e.g., he will call for Mexi- tion forms at the hotels' personnel offices as do individ- can music should he feel that it will please guests from uals seeking jobs as porters, desk clerks, and so on and that country. One of the very experienced leaders was that musicians are not given orientation training or de- asked on cross-examination whether he could choose not tailed rules regulating their work duties as are maids, to follow the maitre d's request for him to play a certain maintenance employees, and the like. That testimony is type of music. He answered with a smile and the state- of relevance on the ultimate issue, as observed below, ment that he always chose to play as the maitre d' had but the fact that the hotels closely control the work en- requested. I have no doubt from the overall testimony virons of certain classifications does not mean that I must that the bandleaders are delighted to receive such re- disregard the extent of control hotels possess over the quests, that they frequently select certain songs to appeal group whose status is in dispute, simply because the con- to an ethnic group dining at one of the tables in the trol is not of equal magnitude. PUERTO RICO HOTEL ASSOCIATION 443 the factors viewed by the Restatement as appropriate for room, and that they invite guests to suggest the songs to that purpose. These are now discussed according to the be played. I also have no doubt that they would never headings used in the Restatement: consider refusing to comply with a maitre d's wishes. The record is replete in this case with examples of the 1. Extent of control control exercised by a Class AA hotel vis-a-vis the musi- The Respondents stress the fact that none of the cians. It schedules the days and hours of work of the hotels' top or middle management officials-the general musicians, assigns them to the rooms in which they per- manager, the food and beverage manager, and so on- form, approves the vacation requests of the leaders and have the technical competence to direct a band with re- not infrequently also those of the sidemen in their spect to tempo and other musical attributes. The General groups, restricts them from using the gambling casino be- Counsel and the Charging Party places considerable tween musical sets, directs them to rehearse with fea- weight on the testimony that the managers of the Class tured performers and schedules their hours of rehearsal, AA hotels insist on a particular dinner-dance style of prohibits them from leaving their musical instruments music to blend in with the character that these hotels against a wall, requires them to wear appropriate attire strive to achieve for purposes of attracting patronage and to fit in with the ambiance of the room, reduces the on other testimony that the hotels possess and exercise number of musicians in a group where feasible in its significant control over the musicians in scheduling their judgment, insists on a leader remaining on the bandstand workhours and overtime, in changing work locations, in to accept applause, and so on. The hotels control the regulating the volume of the music, and in the conduct style of the music as they require soft background music and appearance of the musicians. during dinner, livelier dancing music afterwards, fol- The comment set out in the Restatement states that the lowed by playing sheet music for featured performers, right of control needed to establish the relation of master and in the late hours more dance music. One leader testi- and servant may be very attenuated, that in some cases fied that he had a 15-piece orchestra which played vi- there may be an understanding that an employer shall brant Latin-American music on club dates; i.e., a one- not exercise control, citing as an example the status of a night concert or the like. When he began as a leader of a full-time cook as a servant, although it is understood that band in a Class AA hotel, he kept only six of the musi- the employer will exercise no control over the cooking. cians and had to hire four others. In addition, he had to On that basis and because of the nature of the evidence m f h mi s s t i ba indistinguish- presented, I give more weight to the areas relied on by able from the style played by all other I-piece hotel the General Counsel. The hotel management sets the am- bands in Puerto Rico. biance of the room and, through subordinates, including R a t t c the respective maitre d's, the preparation and service of h Respondents argue that the contracts between the food and beverages is blended with the decor of the h o te ls and the leaders in essence provide for all the fore- room and the entertainment provided therein to achieve going. A s I understand it, they are asserting that, because a unified object-to provide a delightful evening for its t h e b and is performing in accordance with the contract guests. The testimony of a witness called by the Re- it s leader signed with the hotel, the musicians are con- spondent Association is worthy of note in that regard. tractors whose skills make them independent. That is not Jimmy Stevens, a bandleader-booking agent-entrepreneur a 11 t h a t is t o b e evaluated. The Restatement clearly indi- with many years of experience in Puerto Rico, stated the cates that what is being evaluated is the relationship of maitre d' of a room where music is provided to accom- the Parties arising out of their agreement. No one sug- pany food and beverage service is "the boss of his room gests that the master-servant relationship as viewed in [and] coordinates the elements that go towards a success- modern agency law retains the elements of serfdom out ful presentation of food and entertainment [and he] has o f w h ic h t h e common law principle evolved. It is as- full operational authority within his specific room." Tes- s u m e d that the relationship is a consensual one and that timony of other witnesses which I credit further estab- t h e agreement could well be in writing. The matter lishes that the maitre d' can and does direct leaders to b e fo r e me is, as the Restatement indicates, the determina- lower the volume of the music if he considers it too loud ti o n as to the nature of the relationship. to permit guests to talk while eating. The maitre d' can Respecting the element of control, the Respondents stop the music to speed up service, he can instruct the point to record testimony that the leaders do the hiring leader to have the musical group work overtime, and he and firing of sidemen in their respective groups, that the occasionally has the band play a particular style of music musicians do not file the standard employment applica- to appeal to a party of guests; e.g., he will call for Mexi- tion forms at the hotels' personnel offices as do individ- can music should he feel that it will please guests from uals seeking jobs as porters, desk clerks, and so on and that country. One of the very experienced leaders was that musicians are not given orientation training or de- asked on cross-examination whether he could choose not tailed rules regulating their work duties as are maids, to follow the maitre d's request for him to play a certain maintenance employees, and the like. That testimony is type of music. He answered with a smile and the state- of relevance on the ultimate issue, as observed below, ment that he always chose to play as the maitre d' had but the fact that the hotels closely control the work en- requested. I have no doubt from the overall testimony virons of certain classifications does not mean that I must that the bandleaders are delighted to receive such re- disregard the extent of control hotels possess over the quests, that they frequently select certain songs to appeal group whose status is in dispute, simply because the con- to an ethnic group dining at one of the tables in the trol is not of equal magnitude. PUERTO RICO HOTEL ASSOCIATION 443 the factors viewed by the Restatement as appropriate for room, and that they invite guests to suggest the songs to that purpose. These are now discussed according to the be played. I also have no doubt that they would never headings used in the Restatement: consider refusing to comply with a maitre d's wishes. The record is replete in this case with examples of the 1. Extent of control control exercised by a Class AA hotel vis-a-vis the musi- The Respondents stress the fact that none of the cians. It schedules the days and hours of work of the hotels' top or middle management officials-the general musicians, assigns them to the rooms in which they per- manager, the food and beverage manager, and so on- form, approves the vacation requests of the leaders and have the technical competence to direct a band with re- not infrequently also those of the sidemen in their spect to tempo and other musical attributes. The General groups, restricts them from using the gambling casino be- Counsel and the Charging Party places considerable tween musical sets, directs them to rehearse with fea- weight on the testimony that the managers of the Class tured performers and schedules their hours of rehearsal, AA hotels insist on a particular dinner-dance style of prohibits them from leaving their musical instruments music to blend in with the character that these hotels against a wall, requires them to wear appropriate attire strive to achieve for purposes of attracting patronage and to fit in with the ambiance of the room, reduces the on other testimony that the hotels possess and exercise number of musicians in a group where feasible in its significant control over the musicians in scheduling their judgment, insists on a leader remaining on the bandstand workhours and overtime, in changing work locations, in to accept applause, and so on. The hotels control the regulating the volume of the music, and in the conduct style of the music as they require soft background music and appearance of the musicians. during dinner, livelier dancing music afterwards, fol- The comment set out in the Restatement states that the lowed by playing sheet music for featured performers, right of control needed to establish the relation of master and in the late hours more dance music. One leader testi- and servant may be very attenuated, that in some cases fied that he had a 15-piece orchestra which played vi- there may be an understanding that an employer shall brant Latin-American music on club dates; i.e., a one- not exercise control, citing as an example the status of a night concert or the like. When he began as a leader of a full-time cook as a servant, although it is understood that band in a Class AA hotel, he kept only six of the musi- the employer will exercise no control over the cooking. cians and had to hire four others. In addition, he had to On that basis and because of the nature of the evidence m f h mi s s t i ba indistinguish- presented, I give more weight to the areas relied on by able from the style played by all other I-piece hotel the General Counsel. The hotel management sets the am- bands in Puerto Rico. biance of the room and, through subordinates, including R a t t c the respective maitre d's, the preparation and service of h Respondents argue that the contracts between the food and beverages is blended with the decor of the h o te ls and the leaders in essence provide for all the fore- room and the entertainment provided therein to achieve going. A s I understand it, they are asserting that, because a unified object-to provide a delightful evening for its t h e b and is performing in accordance with the contract guests. The testimony of a witness called by the Re- it s leader signed with the hotel, the musicians are con- spondent Association is worthy of note in that regard. tractors whose skills make them independent. That is not Jimmy Stevens, a bandleader-booking agent-entrepreneur a 11 t h a t is t o b e evaluated. The Restatement clearly indi- with many years of experience in Puerto Rico, stated the cates that what is being evaluated is the relationship of maitre d' of a room where music is provided to accom- t h e Parties arising out of their agreement. No one sug- pany food and beverage service is "the boss of his room gests that the master-servant relationship as viewed in [and] coordinates the elements that go towards a success- modern agency law retains the elements of serfdom out ful presentation of food and entertainment [and he] has o f w h ic h t h e common law principle evolved. It is as- full operational authority within his specific room." Tes- s u m e d that the relationship is a consensual one and that timony of other witnesses which I credit further estab- t h e agreement could well be in writing. The matter lishes that the maitre d' can and does direct leaders to b e fo r e me is, as the Restatement indicates, the determina- lower the volume of the music if he considers it too loud ti o n as to the nature of the relationship. to permit guests to talk while eating. The maitre d' can Respecting the element of control, the Respondents stop the music to speed up service, he can instruct the point to record testimony that the leaders do the hiring leader to have the musical group work overtime, and he and firing of sidemen in their respective groups, that the occasionally has the band play a particular style of music musicians do not file the standard employment applica- to appeal to a party of guests; e.g., he will call for Mexi- tion forms at the hotels' personnel offices as do individ- can music should he feel that it will please guests from uals seeking jobs as porters, desk clerks, and so on and that country. One of the very experienced leaders was that musicians are not given orientation training or de- asked on cross-examination whether he could choose not tailed rules regulating their work duties as are maids, to follow the maitre d's request for him to play a certain maintenance employees, and the like. That testimony is type of music. He answered with a smile and the state- of relevance on the ultimate issue, as observed below, ment that he always chose to play as the maitre d' had but the fact that the hotels closely control the work en- requested. I have no doubt from the overall testimony virons of certain classifications does not mean that I must that the bandleaders are delighted to receive such re- disregard the extent of control hotels possess over the quests, that they frequently select certain songs to appeal group whose status is in dispute, simply because the con- to an ethnic group dining at one of the tables in the trol is not of equal magnitude. PUERTO RICO HOTEL ASSOCIATION 443 the factors viewed by the Restatement as appropriate for room, and that they invite guests to suggest the songs to that purpose. These are now discussed according to the be played. I also have no doubt that they would never headings used in the Restatement: consider refusing to comply with a maitre d's wishes. The record is replete in this case with examples of the 1. Extent of control control exercised by a Class AA hotel vis-a-vis the musi- The Respondents stress the fact that none of the cians. It schedules the days and hours of work of the hotels' top or middle management officials-the general musicians, assigns them to the rooms in which they per- manager, the food and beverage manager, and so on- form, approves the vacation requests of the leaders and have the technical competence to direct a band with re- not infrequently also those of the sidemen in their spect to tempo and other musical attributes. The General groups, restricts them from using the gambling casino be- Counsel and the Charging Party places considerable tween musical sets, directs them to rehearse with fea- weight on the testimony that the managers of the Class tured performers and schedules their hours of rehearsal, AA hotels insist on a particular dinner-dance style of prohibits them from leaving their musical instruments music to blend in with the character that these hotels against a wall, requires them to wear appropriate attire strive to achieve for purposes of attracting patronage and to fit in with the ambiance of the room, reduces the on other testimony that the hotels possess and exercise number of musicians in a group where feasible in its significant control over the musicians in scheduling their judgment, insists on a leader remaining on the bandstand workhours and overtime, in changing work locations, in to accept applause, and so on. The hotels control the regulating the volume of the music, and in the conduct style of the music as they require soft background music and appearance of the musicians. during dinner, livelier dancing music afterwards, fol- The comment set out in the Restatement states that the lowed by playing sheet music for featured performers, right of control needed to establish the relation of master and in the late hours more dance music. One leader testi- and servant may be very attenuated, that in some cases fied that he had a 15-piece orchestra which played vi- there may be an understanding that an employer shall brant Latin-American music on club dates; i.e., a one- not exercise control, citing as an example the status of a night concert or the like. When he began as a leader of a full-time cook as a servant, although it is understood that band in a Class AA hotel, he kept only six of the musi- the employer will exercise no control over the cooking. cians and had to hire four others. In addition, he had to On that basis and because of the nature of the evidence m f h mi s s t i ba indistinguish- presented, I give more weight to the areas relied on by able from the style played by all other I-piece hotel the General Counsel. The hotel management sets the am- bands in Puerto Rico. biance of the room and, through subordinates, including R a t t c the respective maitre d's, the preparation and service of h Respondents argue that the contracts between the food and beverages is blended with the decor of the h o te ls and the leaders in essence provide for all the fore- room and the entertainment provided therein to achieve going. A s I understand it, they are asserting that, because a unified object-to provide a delightful evening for its t h e b and is performing in accordance with the contract guests. The testimony of a witness called by the Re- it s leader signed with the hotel, the musicians are con- spondent Association is worthy of note in that regard. tractors whose skills make them independent. That is not Jimmy Stevens, a bandleader-booking agent-entrepreneur a 11 t h a t is t o b e evaluated. The Restatement clearly indi- with many years of experience in Puerto Rico, stated the cates that what is being evaluated is the relationship of maitre d' of a room where music is provided to accom- t h e Parties arising out of their agreement. No one sug- pany food and beverage service is "the boss of his room gests that the master-servant relationship as viewed in [and] coordinates the elements that go towards a success- modern agency law retains the elements of serfdom out ful presentation of food and entertainment [and he] has o f w h ic h t h e common law principle evolved. It is as- full operational authority within his specific room." Tes- s u m e d that the relationship is a consensual one and that timony of other witnesses which I credit further estab- t h e agreement could well be in writing. The matter lishes that the maitre d' can and does direct leaders to b e fo r e me is, as the Restatement indicates, the determina- lower the volume of the music if he considers it too loud ti o n as to the nature of the relationship. to permit guests to talk while eating. The maitre d' can Respecting the element of control, the Respondents stop the music to speed up service, he can instruct the point to record testimony that the leaders do the hiring leader to have the musical group work overtime, and he and firing of sidemen in their respective groups, that the occasionally has the band play a particular style of music musicians do not file the standard employment applica- to appeal to a party of guests; e.g., he will call for Mexi- tion forms at the hotels' personnel offices as do individ- can music should he feel that it will please guests from uals seeking jobs as porters, desk clerks, and so on and that country. One of the very experienced leaders was that musicians are not given orientation training or de- asked on cross-examination whether he could choose not tailed rules regulating their work duties as are maids, to follow the maitre d's request for him to play a certain maintenance employees, and the like. That testimony is type of music. He answered with a smile and the state- of relevance on the ultimate issue, as observed below, ment that he always chose to play as the maitre d' had but the fact that the hotels closely control the work en- requested. I have no doubt from the overall testimony virons of certain classifications does not mean that I must that the bandleaders are delighted to receive such re- disregard the extent of control hotels possess over the quests, that they frequently select certain songs to appeal group whose status is in dispute, simply because the con- to an ethnic group dining at one of the tables in the trol is not of equal magnitude. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Let me close the discussion under this factor by ob- and often the sound-amplifying system. The leaders own serving that the Class AA hotels do possess considerable and use their own sheet music; when performing with a control over the details of the work environs of the mu- featured star performer, the musicians use sheet music sicians in this case. provided by the manager of the star performer. Respecting the locale of the workplace, the hotels ob- 2. Engaged in a distinct occupation viously provide the rooms in which the musicians per- All the parties acknowledge that the musicians per- form. For that matter, the hotels set aside rooms to be forming in the Class AA hotels are highly skilled and are used by the musicians during their rest periods. The Re- in a clearly distinct occupation. The significance of this statement, relative to this factor, contains an illustrative factor may not be as great today as it was in the early example. It states that coal miners who furnish their own common law when servants were assigned to unskilled helpers and their own explosives, but who are furnished tasks and entrepreneurs performed the skilled work. In with the larger machines and the means of ingress and that regard, the Restatement notes that modern techno- egress by the owner of the mine who pays them for each logical developments are having an impact on agency ton of coal mined, are servants of the mine owner. That law. Thus, the Restatement observes that the captain of a illustration suggests the analogy that, as the hotels in the ship can disregard the orders of the ship's owner and still instant case furnish the rooms where the musicians play, the owner will be liable for the captain's negligence in the piano and the amplification system which comprise controlling the ship. In view of this, I am inclined to the larger pieces of equipment, and the means of ingress give less weight to the fact that the musicians have a dis- and egress and as the hotels pay the musicians on an tinct occupation than to the element of control, discussed hourly basis, the musicians are servants within the mean- above. ing of the common law agency rules. 3. Whether, in the locality, the work is usually done 6. The length of the engagement under the direction of the employer or by a specialist without supervision As noted above, the length of an engagement is nor- The comment provided in the Restatement as to this ally indefinite insofar as the steady engagement musi- The comment provided in the Restatement as to this cians are concerned Some groups have been with the factor is not, in my view, too helpful in deciding the c ans are concerned. Some groups have been with the issue posed in the instant case. The Restatement notes same hotelfor many years It appears too that more than that area custom is a factor and then qualifies that obser- a few of the musiclans have worked steadily for many vation by pointing out that skilled employees who resent years at one or another of the Class AA hotels n uerto interference are still servants if regularly employed, re- Rico. ferring for example to cooks and gardeners. On the other . hand, the Restatement observes that an individual em- ployed for a specific job would not be a servant. It seems Respondents have characterized the method used by to me the emphasis is as much if not more on tenure than the hotels to pay the musicians as "lump sum" payments. area custom. The method used is in fact virtually identical to the way Insofar as tenure is a consideration hereunder, the tes- an employee is paid. Regular weekly paychecks less the timony discloses that, while the written contracts are for usual deductions are issued. The so-called lump sum specific periods, they often are renewed and on frequent figure set out in the Form B contract in essence estab- occasions, for year after year. In effect then the tenure is lishes the regular weekly salary of each group member generally indefinite and often for many years. and does not cover overtime pay or other extras. My concept of a lump sum payment is one in which an 4. The skilleqowner pays a builder a total amount for a project at its The musicians in this case are highly skilled and it is inception or completion or at specific stages and no ac- rare for an official of the hotel to impose his views on a counting is kept by the owner as to hours worked by the leader respecting the performance of the group although workers engaged by the builders, their rates of pay, and there have been situations where a food and beverage so on. manager has insisted on and obtained changes in the About the only area where the method of payments makeup of a group to satisfy his wish for a different mu- between a hotel and a musician can be said to be analo- sicial style or format. gous to that between an owner-builder, as described above, pertains to the practice in Puerto Rico whereby 5. The supplier of the instrumentalities, tools, and musicians cover for each other in emergencies. On those workplace occasions, it appears that the hotels and, for that matter, The Restatement comments that the fact that an indi- the leaders are not aware of the substitution until a vidual supplies his own tools is some evidence that he is group is ready to perform on a particular night. The not a servant whereas, if he uses his employer's tools, it hotels keep no record of such substitutes but treat the is normally understood that he will follow the owner's matter just as if the regular musician had appeared. This direction in their use and that indicates that the owner is exception is a consideration. It also highlights the normal a master. In the instant case, the musicians furnish their procedures which, inter alia, involve a musician showing own instruments to a great extent, e.g., the saxophone his ID card at a payroll window each week to collect his and other small pieces, but the hotel furnishes the piano paycheck. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Let me close the discussion under this factor by ob- and often the sound-amplifying system. The leaders own serving that the Class AA hotels do possess considerable and use their own sheet music; when performing with a control over the details of the work environs of the mu- featured star performer, the musicians use sheet music sicians in this case. provided by the manager of the star performer. 2 . Engaged in a distinct.occupationRespecting the locale of the workplace, the hotels Ob- 2. Engaged mn a distinct occupation~viously provide the rooms in which the musicians per- All the parties acknowledge that the musicians per- form. For that matter, the hotels set aside rooms to be forming in the Class AA hotels are highly skilled and are used by the musicians during their rest periods. The Re- in a clearly distinct occupation. The significance of this statement, relative to this factor, contains an illustrative factor may not be as great today as it was in the early example. It states that coal miners who furnish their own common law when servants were assigned to unskilled helpers and their own explosives, but who are furnished tasks and entrepreneurs performed the skilled work. In with the larger machines and the means of ingress and that regard, the Restatement notes that modem techno- egress by the owner of the mine who pays them for each logical developments are having an impact on agency ton of coal mined, are servants of the mine owner. That law. Thus, the Restatement observes that the captain of a illustration suggests the analogy that, as the hotels in the ship can disregard the orders of the ship's owner and still instant case furnish the rooms where the musicians play, the owner will be liable for the captain's negligence in the piano and the amplification system which comprise controlling the ship. In view of this, I am inclined to the larger pieces of equipment, and the means of ingress give less weight to the fact that the musicians have a dis- and egress and as the hotels pay the musicians on an tinct occupation than to the element of control, discussed hourly basis, the musicians are servants within the mean- above. ing of the common law agency rules. 3. Whether, in the locality, the work is usually done 6. The length of the engagement under the direction of the employer or by a specialist without supervision As noted above, the length of an engagement is nor- The comment provided in the Restatement as to this mally indefinite insofar as the steady engagement musi- factor is not, in my view, too helpful in deciding the cs an s are concerned. Some groups have been with the issue posed in the instant case. The Restatement notes sam e h o t el f o r "^V V^"- l t app^, t 00 t h at m o r e t h an that area custom is a factor and then qualifies that obser- a f ew o f t h e musicians have worked steadily for many vation by pointing out that skilled employees who resent years a t o ne o r an o t h er o f t h e C l ass A A h o t els in P u e r t o interference are still servants if regularly employed, re- Rico. ferring for example to cooks and gardeners. On the other .M o hand, the Restatement observes that an individual em- ployed for a specific job would not be a servant. It seems Respondents have characterized the method used by to me the emphasis is as much if not more on tenure than the hotels to pay the musicians as "lump sum" payments. area custom. The method used is in fact virtually identical to the way Insofar as tenure is a consideration hereunder, the tes- an employee is paid. Regular weekly paychecks less the timony discloses that, while the written contracts are for usual deductions are issued. The so-called lump sum specific periods, they often are renewed and on frequent figure set out in the Form B contract in essence estab- occasions, for year after year. In effect then the tenure is lishes the regular weekly salary of each group member generally indefinite and often for many years. and does not cover overtime pay or other extras. My 4. The skills requiredtconcept of a lump sum payment is one in which an owner pays a builder a total amount for a project at its The musicians in this case are highly skilled and it is inception or completion or at specific stages and no ac- rare for an official of the hotel to impose his views on a counting is kept by the owner as to hours worked by the leader respecting the performance of the group although workers engaged by the builders, their rates of pay, and there have been situations where a food and beverage so on. manager has insisted on and obtained changes in the About the only area where the method of payments makeup of a group to satisfy his wish for a different mu- between a hotel and a musician can be said to be analo- sicial style or format. gous to that between an owner-builder, as described , . The supplier of the instrumentalities, tools, and above, pertains to the practice in Puerto Rico whereby 5. The supplier of the instrumentalities, tools, and musicians cover for each other in emergencies. On those workplace occasions, it appears that the hotels and, for that matter, The Restatement comments that the fact that an indi- the leaders are not aware of the substitution until a vidual supplies his own tools is some evidence that he is group is ready to perform on a particular night. The not a servant whereas, if he uses his employer's tools, it hotels keep no record of such substitutes but treat the is normally understood that he will follow the owner's matter just as if the regular musician had appeared. This direction in their use and that indicates that the owner is exception is a consideration. It also highlights the normal a master. In the instant case, the musicians furnish their procedures which, inter alia, involve a musician showing own instruments to a great extent, e.g., the saxophone his ID card at a payroll window each week to collect his and other small pieces, but the hotel furnishes the piano paycheck. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Let me close the discussion under this factor by ob- and often the sound-amplifying system. The leaders own serving that the Class AA hotels do possess considerable and use their own sheet music; when performing with a control over the details of the work environs of the mu- featured star performer, the musicians use sheet music sicians in this case. provided by the manager of the star performer. 2 . Engaged in a distinct.occupationRespecting the locale of the workplace, the hotels Ob- 2. Engaged mn a distinct occupation~viously provide the rooms in which the musicians per- All the parties acknowledge that the musicians per- form. For that matter, the hotels set aside rooms to be forming in the Class AA hotels are highly skilled and are used by the musicians during their rest periods. The Re- in a clearly distinct occupation. The significance of this statement, relative to this factor, contains an illustrative factor may not be as great today as it was in the early example. It states that coal miners who furnish their own common law when servants were assigned to unskilled helpers and their own explosives, but who are furnished tasks and entrepreneurs performed the skilled work. In with the larger machines and the means of ingress and that regard, the Restatement notes that modem techno- egress by the owner of the mine who pays them for each logical developments are having an impact on agency ton of coal mined, are servants of the mine owner. That law. Thus, the Restatement observes that the captain of a illustration suggests the analogy that, as the hotels in the ship can disregard the orders of the ship's owner and still instant case furnish the rooms where the musicians play, the owner will be liable for the captain's negligence in the piano and the amplification system which comprise controlling the ship. In view of this, I am inclined to the larger pieces of equipment, and the means of ingress give less weight to the fact that the musicians have a dis- and egress and as the hotels pay the musicians on an tinct occupation than to the element of control, discussed hourly basis, the musicians are servants within the mean- above. ing of the common law agency rules. 3. Whether, in the locality, the work is usually done 6. The length of the engagement under the direction of the employer or by a specialist without supervision As noted above, the length of an engagement is nor- The comment provided in the Restatement as to this mally indefinite insofar as the steady engagement musi- factor is not, in my view, too helpful in deciding the cs an s are concerned. Some groups have been with the issue posed in the instant case. The Restatement notes sam e h o t el f o r many V^"- l t app^, t 00 t h at m o r e t h an that area custom is a factor and then qualifies that obser- a f ew o f t h e musicians have worked steadily for many vation by pointing out that skilled employees who resent years a t o ne o r an o t h er o f t h e C l ass A A h o t els in Puert o interference are still servants if regularly employed, re- Rico. ferring for example to cooks and gardeners. On the other .M o hand, the Restatement observes that an individual em- ployed for a specific job would not be a servant. It seems Respondents have characterized the method used by to me the emphasis is as much if not more on tenure than the hotels to pay the musicians as "lump sum" payments. area custom. The method used is in fact virtually identical to the way Insofar as tenure is a consideration hereunder, the tes- an employee is paid. Regular weekly paychecks less the timony discloses that, while the written contracts are for usual deductions are issued. The so-called lump sum specific periods, they often are renewed and on frequent figure set out in the Form B contract in essence estab- occasions, for year after year. In effect then the tenure is lishes the regular weekly salary of each group member generally indefinite and often for many years. and does not cover overtime pay or other extras. My 4. The skills requiredtconcept of a lump sum payment is one in which an owner pays a builder a total amount for a project at its The musicians in this case are highly skilled and it is inception or completion or at specific stages and no ac- rare for an official of the hotel to impose his views on a counting is kept by the owner as to hours worked by the leader respecting the performance of the group although workers engaged by the builders, their rates of pay, and there have been situations where a food and beverage so on. manager has insisted on and obtained changes in the About the only area where the method of payments makeup of a group to satisfy his wish for a different mu- between a hotel and a musician can be said to be analo- sicial style or format. gous to that between an owner-builder, as described , . The supplier of the instrumentalities, tools, and above, pertains to the practice in Puerto Rico whereby 5. The supplier of the instrumentalities, tools, and musicians cover for each other in emergencies. On those workplace occasions, it appears that the hotels and, for that matter, The Restatement comments that the fact that an indi- the leaders are not aware of the substitution until a vidual supplies his own tools is some evidence that he is group is ready to perform on a particular night. The not a servant whereas, if he uses his employer's tools, it hotels keep no record of such substitutes but treat the is normally understood that he will follow the owner's matter just as if the regular musician had appeared. This direction in their use and that indicates that the owner is exception is a consideration. It also highlights the normal a master. In the instant case, the musicians furnish their procedures which, inter alia, involve a musician showing own instruments to a great extent, e.g., the saxophone his ID card at a payroll window each week to collect his and other small pieces, but the hotel furnishes the piano paycheck. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Let me close the discussion under this factor by ob- and often the sound-amplifying system. The leaders own serving that the Class AA hotels do possess considerable and use their own sheet music; when performing with a control over the details of the work environs of the mu- featured star performer, the musicians use sheet music sicians in this case. provided by the manager of the star performer. 2 . Engaged in a distinct.occupationRespecting the locale of the workplace, the hotels Ob- 2. Engaged mn a distinct occupation~viously provide the rooms in which the musicians per- All the parties acknowledge that the musicians per- form. For that matter, the hotels set aside rooms to be forming in the Class AA hotels are highly skilled and are used by the musicians during their rest periods. The Re- in a clearly distinct occupation. The significance of this statement, relative to this factor, contains an illustrative factor may not be as great today as it was in the early example. It states that coal miners who furnish their own common law when servants were assigned to unskilled helpers and their own explosives, but who are furnished tasks and entrepreneurs performed the skilled work. In with the larger machines and the means of ingress and that regard, the Restatement notes that modem techno- egress by the owner of the mine who pays them for each logical developments are having an impact on agency ton of coal mined, are servants of the mine owner. That law. Thus, the Restatement observes that the captain of a illustration suggests the analogy that, as the hotels in the ship can disregard the orders of the ship's owner and still instant case furnish the rooms where the musicians play, the owner will be liable for the captain's negligence in the piano and the amplification system which comprise controlling the ship. In view of this, I am inclined to the larger pieces of equipment, and the means of ingress give less weight to the fact that the musicians have a dis- and egress and as the hotels pay the musicians on an tinct occupation than to the element of control, discussed hourly basis, the musicians are servants within the mean- above. ing of the common law agency rules. 3. Whether, in the locality, the work is usually done 6. The length of the engagement under the direction of the employer or by a specialist without supervision As noted above, the length of an engagement is nor- The comment provided in the Restatement as to this mally indefinite insofar as the steady engagement musi- factor is not, in my view, too helpful in deciding the cs an s are concerned. Some groups have been with the issue posed in the instant case. The Restatement notes sam e h o t el f o r "^V V^"- l t app^, t 00 t h at m o r e t h an that area custom is a factor and then qualifies that obser- a f ew o f t h e musicians have worked steadily for many vation by pointing out that skilled employees who resent years a t o ne o r an o t h er o f t h e C l ass A A h o t els in Puert o interference are still servants if regularly employed, re- Rico. ferring for example to cooks and gardeners. On the other .M o hand, the Restatement observes that an individual em- ployed for a specific job would not be a servant. It seems Respondents have characterized the method used by to me the emphasis is as much if not more on tenure than the hotels to pay the musicians as "lump sum" payments. area custom. The method used is in fact virtually identical to the way Insofar as tenure is a consideration hereunder, the tes- an employee is paid. Regular weekly paychecks less the timony discloses that, while the written contracts are for usual deductions are issued. The so-called lump sum specific periods, they often are renewed and on frequent figure set out in the Form B contract in essence estab- occasions, for year after year. In effect then the tenure is lishes the regular weekly salary of each group member generally indefinite and often for many years. and does not cover overtime pay or other extras. My 4. The skills requiredtconcept of a lump sum payment is one in which an owner pays a builder a total amount for a project at its The musicians in this case are highly skilled and it is inception or completion or at specific stages and no ac- rare for an official of the hotel to impose his views on a counting is kept by the owner as to hours worked by the leader respecting the performance of the group although workers engaged by the builders, their rates of pay, and there have been situations where a food and beverage so on. manager has insisted on and obtained changes in the About the only area where the method of payments makeup of a group to satisfy his wish for a different mu- between a hotel and a musician can be said to be analo- sicial style or format. gous to that between an owner-builder, as described , . The supplier of the instrumentalities, tools, and above, pertains to the practice in Puerto Rico whereby 5. The supplier of the instrumentalities, tools, and musicians cover for each other in emergencies. On those workplace occasions, it appears that the hotels and, for that matter, The Restatement comments that the fact that an indi- the leaders are not aware of the substitution until a vidual supplies his own tools is some evidence that he is group is ready to perform on a particular night. The not a servant whereas, if he uses his employer's tools, it hotels keep no record of such substitutes but treat the is normally understood that he will follow the owner's matter just as if the regular musician had appeared. This direction in their use and that indicates that the owner is exception is a consideration. It also highlights the normal a master. In the instant case, the musicians furnish their procedures which, inter alia, involve a musician showing own instruments to a great extent, e.g., the saxophone his ID card at a payroll window each week to collect his and other small pieces, but the hotel furnishes the piano paycheck. PUERTO RICO HOTEL ASSOCIATION 445 The contract between a leader and a hotel occasional- officials in directing musicians, in contesting civil actions ly provides the payment of a specified commission to a brought by musicians, in responding to inquiries from booking agent. That commission is not deducted from banks and from local agencies-all these point strongly the so-called lump sum for the musicians but is paid by to a belief by the parties that a master-servant relation- the hotel directly to the booking agent. ship existed. It is true that whenever this belief surfaced, Respondents urge that little weight be given to the the Respondent Association denied that the hotels were fact that hotels deduct income tax and other sums from employers of the musicians. Also, the Union's president the weekly paychecks of the musicians as it contends did sign a statement prepared by the Respondent Associ- that the laws of the Commonwealth of Puerto Rico and ation which provided that the parties agreed that the the provisions of the collective-bargaining agreements hotels were not employers of musicians. between the Union and the Respondent Association re- I think that more weight should be given to their acts quire that such deductions be made. The General Coun- rather than to their conclusionary denials or admissions sel disputes the assertion that Puerto Rican law expressly in determining what they actually accepted as to the requires the hotels to make such deductions. On that nature of the relationship of the hotels vis-a-vis the musi- point, it appears that a leader could obligate himself cians. under Puerto Rican law to deduct such moneys and transmit them to the local tax authorities but he would 10. Whether the principal is in business first have to obtain an "employer" number from the tax officials and follow the requisite regulations not detailed h stat t ds ot r e ay c t as in the record in this case. It is evident, however, that this ths factor Presumably, this factor refers to the likeli- procedure is not a practical one. The Respondent Associ- hood that one who is not n a regular business, e.g., an ation's own proposal during the last negotiations with owner of a house, normally enters into contracts with in- the Union provided that the hotels would make such de- dependent contractors as to house maintenance and does ductions on behalf of the leaders because the leaders do not normally hire employees to perform such work. That not have the facilities to handle those details. factor has no bearing on the issue in this case. With respect to the argument put forth by Respond- 11. Other factors ents as to the reason why the hotels have made tax and other deductions from the musicians' weekly paychecks, Section 220(2) states that the foregoing 10 factors, it seems to me that I should accord significant weight to among others, are to be considered in resolving the the fact that, for all practical purposes, the hotels are ob- agency issue. In this section I will discuss those aspects ligated to deduct and transmit such moneys and even of the evidence which do not fall readily under any of more weight to the fact that the hotels have for years the above 10 listed factors. obligated themselves to do so under the provisions of the collective-bargaining agreements between the Union and (a) Comparison of working conditions the Respondent Association. Respondents note that there are significant differences 8. Whether the work is a part of the regular between the working conditions applicable to the musi- business of the employer cians and to individuals whom it concedes to be regular hotel employees; e.g., maids, desk clerks. I suppose that Respondents contend in the briefs they filed that the differences must exist in order for the issue in this case to main primary business of the hotels in this case is to fur- be raised. Voluminous testimony and numerous exhibits nish lodging, not music. I am not sure that that statement in evidence demonstrate these differences, and also a is entirely accurate. The Class AA hotels in Puerto Rico number of similarities in the way the hotels dealt with are hardly wayside inns where weary travelers may find the musicians and with individuals they view as employ- rest at night. Their distinguishing feature is that they op- ees. The differences in great part had to do with person- erate gambling casinos and, in conjunction therewith, nel procedures in that applicants for jobs as porters filled appeal to tourists by offering food, beverages, and musi- out personnel forms, and were interviewed and hired by cal entertainment. In that context, it seems clear that the personnel department officials and then were given ori- work performed by the musicians is part of the regular entation training, job training and booklets containing business of the hotels. rules and regulations; musicians were not given any of 9. The belief of the partiesthese forms or booklets and obviously already had com- petence in their particular area. The similarities may, The nature of the negotiations between the Union and however, be entitled to greater weight. Thus, the leaders the Association for many years in executing collective- of musical groups were often the recipients of interoffice bargaining agreements pertaining to wages, hours, and memoranda which indicated that they were part of the other terms and conditions of employment, the internal supervisory structure of the hotels. Also, the records operations of the Respondent Association insofar as they kept by the leaders as to regular hours worked by musi- pertain to its dealingswith the Union, including the fact cians, overtime hours, and as to "doubling" moneys due that the member hotels entered into a mutual aid and are akin to duties traditionally performed by a supervi- protection pact to guard against whipsaw tactics by the sor. Further the musicians were given ID cards by the Union, the use of conciliation services by the Respondent hotels, free meals in the employee cafeterias, employee Association and the Union; the language used by hotel discounts, and so on. PUERTO RICO HOTEL ASSOCIATION 445 The contract between a leader and a hotel occasional- officials in directing musicians, in contesting civil actions ly provides the payment of a specified commission to a brought by musicians, in responding to inquiries from booking agent. That commission is not deducted from banks and from local agencies-all these point strongly the so-called lump sum for the musicians but is paid by to a belief by the parties that a master-servant relation- the hotel directly to the booking agent. ship existed. It is true that whenever this belief surfaced, Respondents urge that little weight be given to the the Respondent Association denied that the hotels were fact that hotels deduct income tax and other sums from employers of the musicians. Also, the Union's president the weekly paychecks of the musicians as it contends did sign a statement prepared by the Respondent Associ- that the laws of the Commonwealth of Puerto Rico and ation which provided that the parties agreed that the the provisions of the collective-bargaining agreements hotels were not employers of musicians. between the Union and the Respondent Association re- I think that more weight should be given to their acts quire that such deductions be made. The General Coun- rather than to their conclusionary denials or admissions sel disputes the assertion that Puerto Rican law expressly in determining what they actually accepted as to the requires the hotels to make such deductions. On that nature of the relationship of the hotels vis-a-vis the musi- point, it appears that a leader could obligate himself cians. under Puerto Rican law to deduct such moneys and transmit them to the local tax authorities but he would 10. Whether the principal is in business first have to obtain an "employer" number from the tax T officials and follow the requisite regulations not detailed T h efa statement does not provide any comment as to in the record in this case. It is evident, however, that this h t h ls f ac to r. Presumably, this factor refers to the likeli- procedure is not a practical one. The Respondent Associ- h o o d t h a t o n e w h o " not m a regular business, e.g., an ation's own proposal during the last negotiations with owner o f a house, normally enters into contracts with in- the Union provided that the hotels would make such de- dependent contractors as to house maintenance and does ductions on behalf of the leaders because the leaders do not normally hire employees to perform such work. That not have the facilities to handle those details. f ac t o r h as no bearing on the issue in this case. With respect to the argument put forth by Respond- I1. Other factors ents as to the reason why the hotels have made tax and other deductions from the musicians' weekly paychecks, Section 220(2) states that the foregoing 10 factors, it seems to me that I should accord significant weight to among others, are to be considered in resolving the the fact that, for all practical purposes, the hotels are ob- agency issue. In this section I will discuss those aspects ligated to deduct and transmit such moneys and even of the evidence which do not fall readily under any of more weight to the fact that the hotels have for years the above 10 listed factors. obligated themselves to do so under the provisions of the collective-bargaining agreements between the Union and (a) Comparison of working conditions the Respondent Association.,. _ ,„ Respondents note that there are significant differences 8. Whether the work is a part of the regular between the working conditions applicable to the musi- business of the employer cians and to individuals whom it concedes to be regular hotel employees; e.g., maids, desk clerks. I suppose that Respondents contend in the briefs they filed that the differences must exist in order for the issue in this case to main primary business of the hotels in this case is to fur- be raised. Voluminous testimony and numerous exhibits nish lodging, not music. I am not sure that that statement in evidence demonstrate these differences, and also a is entirely accurate. The Class AA hotels in Puerto Rico number of similarities in the way the hotels dealt with are hardly wayside inns where weary travelers may find the musicians and with individuals they view as employ- rest at night. Their distinguishing feature is that they op- ees. The differences in great part had to do with person- erate gambling casinos and, in conjunction therewith, nel procedures in that applicants for jobs as porters filled appeal to tourists by offering food, beverages, and musi- out personnel forms, and were interviewed and hired by cal entertainment. In that context, it seems clear that the personnel department officials and then were given ori- work performed by the musicians is part of the regular entation training, job training and booklets containing business of the hotels. rules and regulations; musicians were not given any of 9. The belief of the parties t h ese fo r m s o r b o o k l et s a nd obviously already h ad c o m - petence in their particular area. The similarities may, The nature of the negotiations between the Union and however, be entitled to greater weight. Thus, the leaders the Association for many years in executing collective- of musical groups were often the recipients of interoffice bargaining agreements pertaining to wages, hours, and memoranda which indicated that they were part of the other terms and conditions of employment, the internal supervisory structure of the hotels. Also, the records operations of the Respondent Association insofar as they kept by the leaders as to regular hours worked by musi- pertain to its dealingswith the Union, including the fact cians, overtime hours, and as to "doubling" moneys due that the member hotels entered into a mutual aid and are akin to duties traditionally performed by a supervi- protection pact to guard against whipsaw tactics by the sor. Further the musicians were given ID cards by the Union, the use of conciliation services by the Respondent hotels, free meals in the employee cafeterias, employee Association and the Union; the language used by hotel discounts, and so on. PUERTO RICO HOTEL ASSOCIATION 445 The contract between a leader and a hotel occasional- officials in directing musicians, in contesting civil actions ly provides the payment of a specified commission to a brought by musicians, in responding to inquiries from booking agent. That commission is not deducted from banks and from local agencies-all these point strongly the so-called lump sum for the musicians but is paid by to a belief by the parties that a master-servant relation- the hotel directly to the booking agent. ship existed. It is true that whenever this belief surfaced, Respondents urge that little weight be given to the the Respondent Association denied that the hotels were fact that hotels deduct income tax and other sums from employers of the musicians. Also, the Union's president the weekly paychecks of the musicians as it contends did sign a statement prepared by the Respondent Associ- that the laws of the Commonwealth of Puerto Rico and ation which provided that the parties agreed that the the provisions of the collective-bargaining agreements hotels were not employers of musicians. between the Union and the Respondent Association re- I think that more weight should be given to their acts quire that such deductions be made. The General Coun- rather than to their conclusionary denials or admissions sel disputes the assertion that Puerto Rican law expressly in determining what they actually accepted as to the requires the hotels to make such deductions. On that nature of the relationship of the hotels vis-a-vis the musi- point, it appears that a leader could obligate himself cians. under Puerto Rican law to deduct such moneys and transmit them to the local tax authorities but he would 10. Whether the principal is in business first have to obtain an "employer" number from the tax T officials and follow the requisite regulations not detailed T h efa statement does not provide any comment as to in the record in this case. It is evident, however, that this h t h ls f ac to r. Presumably, this factor refers to the likeli- procedure is not a practical one. The Respondent Associ- h o o d t h a t o n e w h o " not m a regular business, e.g., an ation's own proposal during the last negotiations with owner o f a house, normally enters into contracts with in- the Union provided that the hotels would make such de- dependent contractors as to house maintenance and does ductions on behalf of the leaders because the leaders do not normally hire employees to perform such work. That not have the facilities to handle those details. f ac t o r h as no bearing on the issue in this case. With respect to the argument put forth by Respond- I1. Other factors ents as to the reason why the hotels have made tax and other deductions from the musicians' weekly paychecks, Section 220(2) states that the foregoing 10 factors, it seems to me that I should accord significant weight to among others, are to be considered in resolving the the fact that, for all practical purposes, the hotels are ob- agency issue. In this section I will discuss those aspects ligated to deduct and transmit such moneys and even of the evidence which do not fall readily under any of more weight to the fact that the hotels have for years the above 10 listed factors. obligated themselves to do so under the provisions of the collective-bargaining agreements between the Union and (a) Comparison of working conditions the Respondent Association.,. _ ,„ Respondents note that there are significant differences 8. Whether the work is a part of the regular between the working conditions applicable to the musi- business of the employer cians and to individuals whom it concedes to be regular hotel employees; e.g., maids, desk clerks. I suppose that Respondents contend in the briefs they filed that the differences must exist in order for the issue in this case to main primary business of the hotels in this case is to fur- be raised. Voluminous testimony and numerous exhibits nish lodging, not music. I am not sure that that statement in evidence demonstrate these differences, and also a is entirely accurate. The Class AA hotels in Puerto Rico number of similarities in the way the hotels dealt with are hardly wayside inns where weary travelers may find the musicians and with individuals they view as employ- rest at night. Their distinguishing feature is that they op- ees. The differences in great part had to do with person- erate gambling casinos and, in conjunction therewith, nel procedures in that applicants for jobs as porters filled appeal to tourists by offering food, beverages, and musi- out personnel forms, and were interviewed and hired by cal entertainment. In that context, it seems clear that the personnel department officials and then were given ori- work performed by the musicians is part of the regular entation training, job training and booklets containing business of the hotels. rules and regulations; musicians were not given any of 9. The belief of the parties t h ese fo r m s o r b o o k l et s a nd obviously already h ad c o m - petence in their particular area. The similarities may, The nature of the negotiations between the Union and however, be entitled to greater weight. Thus, the leaders the Association for many years in executing collective- of musical groups were often the recipients of interoffice bargaining agreements pertaining to wages, hours, and memoranda which indicated that they were part of the other terms and conditions of employment, the internal supervisory structure of the hotels. Also, the records operations of the Respondent Association insofar as they kept by the leaders as to regular hours worked by musi- pertain to its dealingswith the Union, including the fact cians, overtime hours, and as to "doubling" moneys due that the member hotels entered into a mutual aid and are akin to duties traditionally performed by a supervi- protection pact to guard against whipsaw tactics by the sor. Further the musicians were given ID cards by the Union, the use of conciliation services by the Respondent hotels, free meals in the employee cafeterias, employee Association and the Union; the language used by hotel discounts, and so on. PUERTO RICO HOTEL ASSOCIATION 445 The contract between a leader and a hotel occasional- officials in directing musicians, in contesting civil actions ly provides the payment of a specified commission to a brought by musicians, in responding to inquiries from booking agent. That commission is not deducted from banks and from local agencies-all these point strongly the so-called lump sum for the musicians but is paid by to a belief by the parties that a master-servant relation- the hotel directly to the booking agent. ship existed. It is true that whenever this belief surfaced, Respondents urge that little weight be given to the the Respondent Association denied that the hotels were fact that hotels deduct income tax and other sums from employers of the musicians. Also, the Union's president the weekly paychecks of the musicians as it contends did sign a statement prepared by the Respondent Associ- that the laws of the Commonwealth of Puerto Rico and ation which provided that the parties agreed that the the provisions of the collective-bargaining agreements hotels were not employers of musicians. between the Union and the Respondent Association re- I think that more weight should be given to their acts quire that such deductions be made. The General Coun- rather than to their conclusionary denials or admissions sel disputes the assertion that Puerto Rican law expressly in determining what they actually accepted as to the requires the hotels to make such deductions. On that nature of the relationship of the hotels vis-a-vis the musi- point, it appears that a leader could obligate himself cians. under Puerto Rican law to deduct such moneys and transmit them to the local tax authorities but he would 10. Whether the principal is in business first have to obtain an "employer" number from the tax T officials and follow the requisite regulations not detailed T h efa statement does not provide any comment as to in the record in this case. It is evident, however, that this h t h ls f ac to r. Presumably, this factor refers to the likeli- procedure is not a practical one. The Respondent Associ- h o o d t h a t o n e w h o " not m a regular business, e.g., an ation's own proposal during the last negotiations with owner o f a house, normally enters into contracts with in- the Union provided that the hotels would make such de- dependent contractors as to house maintenance and does ductions on behalf of the leaders because the leaders do not normally hire employees to perform such work. That not have the facilities to handle those details. f ac t o r h as no bearing on the issue in this case. With respect to the argument put forth by Respond- I1. Other factors ents as to the reason why the hotels have made tax and other deductions from the musicians' weekly paychecks, Section 220(2) states that the foregoing 10 factors, it seems to me that I should accord significant weight to among others, are to be considered in resolving the the fact that, for all practical purposes, the hotels are ob- agency issue. In this section I will discuss those aspects ligated to deduct and transmit such moneys and even of the evidence which do not fall readily under any of more weight to the fact that the hotels have for years the above 10 listed factors. obligated themselves to do so under the provisions of the collective-bargaining agreements between the Union and (a) Comparison of working conditions the Respondent Association.,. _ ,„ Respondents note that there are significant differences 8. Whether the work is a part of the regular between the working conditions applicable to the musi- business of the employer cians and to individuals whom it concedes to be regular hotel employees; e.g., maids, desk clerks. I suppose that Respondents contend in the briefs they filed that the differences must exist in order for the issue in this case to main primary business of the hotels in this case is to fur- be raised. Voluminous testimony and numerous exhibits nish lodging, not music. I am not sure that that statement in evidence demonstrate these differences, and also a is entirely accurate. The Class AA hotels in Puerto Rico number of similarities in the way the hotels dealt with are hardly wayside inns where weary travelers may find the musicians and with individuals they view as employ- rest at night. Their distinguishing feature is that they op- ees. The differences in great part had to do with person- erate gambling casinos and, in conjunction therewith, nel procedures in that applicants for jobs as porters filled appeal to tourists by offering food, beverages, and musi- out personnel forms, and were interviewed and hired by cal entertainment. In that context, it seems clear that the personnel department officials and then were given ori- work performed by the musicians is part of the regular entation training, job training and booklets containing business of the hotels. rules and regulations; musicians were not given any of 9. The belief of the parties t h ese fo r m s o r b o o k l et s a nd obviously already h ad c o m - petence in their particular area. The similarities may, The nature of the negotiations between the Union and however, be entitled to greater weight. Thus, the leaders the Association for many years in executing collective- of musical groups were often the recipients of interoffice bargaining agreements pertaining to wages, hours, and memoranda which indicated that they were part of the other terms and conditions of employment, the internal supervisory structure of the hotels. Also, the records operations of the Respondent Association insofar as they kept by the leaders as to regular hours worked by musi- pertain to its dealingswith the Union, including the fact cians, overtime hours, and as to "doubling" moneys due that the member hotels entered into a mutual aid and are akin to duties traditionally performed by a supervi- protection pact to guard against whipsaw tactics by the sor. Further the musicians were given ID cards by the Union, the use of conciliation services by the Respondent hotels, free meals in the employee cafeterias, employee Association and the Union; the language used by hotel discounts, and so on. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Use of the Form B contract in the Class AA hotels). He observes that a steady en- gagement is simply an extended club date. Another miscellaneous area involves the language and gagement is simy an extended club date. use of the Form B contract. The General Counsel stress- The question tha concened me is hehe the ee al Counsel could contend, as he did successfully in the es the language therein that refers to the hotel as an em- P the ployer. The record evidence is clear however that the Pat Mlls case, that the musical independent contractor onlmthat ever meant anything were by the Hotel El San Juan on an independent contractor only parts of that form that ever meant anything were onlythe weekly salaries the starting date of an engagement basis and still argue before me that the regular musical the weekly salaries, the starting date of an engagement, groups are employees. The short answer is that he can as ~and the signature lines~.~ it is settled law that each case turns on its own facts. In (c) The Association's legal status that regard, I note that there are some apparent differ- ences between the Pat Mills group and the Puerto Rican The Respondent Association notes that its own articles musicians involved in the instant case and that, in any of incorporation and bylaws contain no provision where- event, the independent contractor issue was not litigated by it is authorized to negotiate collective-bargaining in the Pat Mills case. agreements. I am not sure I understand the import of It is my finding, after weighing all of the relevant facts that observation; the doctrine of ultra vires is used to pre- in this case in the light of the guidelines set out by the vent corporate acts but not to excuse them. In any event, Restatement, that there exists an employer-employee re- I attach significant weight to the provisions of the lationship between the Class AA hotels and the musi- mutual aid pact drafted by the Respondent Association. cians involved in this case, rather than that of an inde- pendent contractor arrangement. The attributes of the (d) Entrepreneurial risk status of these musicians vis-a-vis the hotels are closely The Restatement, strangely, does not refer to entrepre- akin to those of individuals who concededly are hotel neurial risk in determining whether one is a servant or an employees, despite the obvious lack of any real commu- independent contractor. In any event, the musician in the nity of interest between the musicians and those employ- instant case is an hourly wage earner protected by unem- ees- Further, the long history of collective bargaining, ployment and disability insurance with provision for sick the significant areas of control possessed and exercised days and allowances for a vacation. The hotels even by the hotels over the musicians, the close integration of assume liability if his musical instrument is stolen from their work with the hotels' operations and functions, the the musician's room. There is virtually no risk of pecuni- fact that the musicians run virtually no risk of pecuniary ary loss for a Class AA hotel musician, in the ordinary loss, the fact that the leaders of the musical groups per- business sense. form functions substantially equivalent to a first-line su- pervisor in charge of a departmental unit of skilled indi- (e) The "Pat Mills" case viduals, and the other points noted above-all persuade me that a master-servant relationship exists, as contem- In a decision issued in 1979, the Board found that the plated by the common law rules of agency, between the leaders of a musical group that performed at one of the musicians and the Class AA hotels in this case. In ac- Class AA hotels, the El San Juan, were self-employed cordance with established principles, the musicians are persons. " That case was referred to by the parties at the thus found to be employees as defined in Section 2(3) of hearing before me as the "Pat Mills" case as the name of the Act and not independent contractors. I further find the musical group in that case consisted of Pat Mills and that the leaders of the musical groups in this case, inter Peter LaJeunesse, d/b/a Pat Mills and Company. In that alia, responsibly direct the work of the musicians and case, as discussed above, the Pat Mills group came from that they are thus supervisors as defined in Section 2(11) New York to put on a show at the El San Juan and were of the Act. forced to leave by the Union, the Charging Party in the instant case, when it threatened to call a strike among its B. The Appropriate Unit members performing at the El San Juan hotel. There was i i i no issue raised in that case as to the independent contrac- There aree matters to be considered in determn- tor status of the Pat Mills group. The Union admitted g the scope of the appropriate unit. The first relates to that the rs of that group wre sel-em yed pe the General Counsel's contention that three of the Class that the leaders of that group were self-employed per- AA hotels attempted to withdraw from the association, sons. It sought to defend on the ground that its object ithd o the ssocition was purely work preservation; however, it was held that de unit in an untimely manner; the second involves the the evidence showed that the Union violated Section claim of the Respondent Association that the leaders' his- 8(bX4tii)(A) and (B) and Section 8(e). torical inclusion in the unit rendered it inappropriate; the Counsel for Respo ndent El San Juan stated in hs third has to do with defining the overall scope of the Counsel for Respondent El San Juan stated in his unit. brief, relative to another point, that all musical groups are self-employed whether they perform on a single en- The complant alleges that the appropriate unit con- gagement basis (i.e., one-night shows, also called a club slstsof al steady engagement musicians employed by the ddthe musicians hotel members of the Respondent Association exclusive date) or a steady engagement basis (as do of bandleaders and independent contractors. The General Federacion de Musicos de Puerto Rico, Local 4 American Federation Counsel contends that Respondents El San Juan hotel, of Musicians, AFL-CIO (Pat Mills d/b/a Pat Mills and Company), 246 El Conquistador Hotel, and The Palace Hotel were NLRB 782 (1979). members of the Association for purposes of bargaining 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Use of the Form B contract in the Class AA hotels). He observes that a steady en- , , , ~~~gagement is simply an extended club date. Another miscellaneous area involves the language and ga s s l concerned me is whether the G.ner- use of the Form B contract. The General Counsel stress- The q t ta concessed in the es the language therein that refers to the hotel as an em- al Counsel could contend, as he did successfully in the ployer. Thuae record evidence is clearh however that the Pat Mills case, that the musical group there was engaged ployer. The record evidence is clear however th he by the Hotel l San Juan on an independent contractor only parts of that form that ever meant anythingagmet basis and still argue before me that the regular musical the weekly salaries, the starting date of an engagement, g are employees. The short answer is that he can as and the signature lines. it is settled law that each case turns on its own facts. In (c) The Association's legal status that regard, I note that there are some apparent differ- ences between the Pat Mills group and the Puerto Rican The Respondent Association notes that its own articles musicians involved in the instant case and that, in any of incorporation and bylaws contain no provision where- event, the independent contractor issue was not litigated by it is authorized to negotiate collective-bargaining in the Pat Mills case. agreements. I am not sure I understand the import of It is my finding, after weighing all of the relevant facts that observation; the doctrine of ultra vires is used to pre- in this case in the light of the guidelines set out by the vent corporate acts but not to excuse them. In any event, Restatement, that there exists an employer-employee re- I attach significant weight to the provisions of the lationship between the Class AA hotels and the musi- mutual aid pact drafted by the Respondent Association. cians involved in this case, rather than that of an inde- pendent contractor arrangement. The attributes of the (d) Entrepreneurial risk status of these musicians vis-a-vis the hotels are closely The Restatement, strangely, does not refer to entrepre- ak i n to those of individuals who concededly are hotel neurial risk in determining whether one is a servant or an employees, despite the obvious lack of any real commu- independent contractor. In any event, the musician in the nity o f in te r es t between the musicians and those employ- instant case is an hourly wage earner protected by unem- ee s. Further, the long history of collective bargaining, ployment and disability insurance with provision for sick the significant areas of control possessed and exercised days and allowances for a vacation. The hotels even by t h e h o t el s o v er t h e musicians, the close integration of assume liability if his musical instrument is stolen from th e ir work with the hotels' operations and functions, the the musician's room. There is virtually no risk of pecuni- f ac t t h at t h e musicians run virtually no risk of pecuniary ary loss for a Class AA hotel musician, in the ordinary lo ss, t h e fac t th at t h e l ead e rs o f t h e m u sical groups per- business sense. form functions substantially equivalent to a first-line su- pervisor in charge of a departmental unit of skilled indi- te) The "Pat Mills" case viduals, and the other points noted above-all persuade me that a master-servant relationship exists, as contem- In a decision issued in 1979, the Board found that the plated by the common law rules of agency, between the leaders of a musical group that performed at one of the musicians and the Class AA hotels in this case. In ac- Class AA hotels, the El San Juan, were self-employed cordance with established principles, the musicians are persons."' That case was referred to by the parties at the thus found to be employees as defined in Section 2(3) of hearing before me as the "Pat Mills" case as the name of the Act and not independent contractors. I further find the musical group in that case consisted of Pat Mills and that the leaders of the musical groups in this case, inter Peter LaJeunesse, d/b/a Pat Mills and Company. In that alia, responsibly direct the work of the musicians and case, as discussed above, the Pat Mills group came from that they are thus supervisors as defined in Section 2(11) New York to put on a show at the El San Juan and were of the Act. forced to leave by the Union, the Charging Party in the instant case, when it threatened to call a strike among its B. The Appropriate Unit members performing at the El San Juan hotel. There was There are three matters to be considered in determin- no issue raised in that case as to the independent contrac- t h e so e three apprsrte unit.re ir retes to tor status of the Pat Mills group. The Union admitted "8 t h e GeepalCu the appropriate unit. The first relates to that the leaders of that group were self-employed per- t h e G e ne ra l Counsels contention that three of the Class sons. It sought to defend on the ground that its object wid eut an unwithdranner; the assivlathe was purely work preservation; however, it was held that md o t he R n de n t A a tion t h a t e l ead e s hi the evidence showed that the Union violated Section claim of the Respondent Association that the leaders' his- 8(bX4Xii)(A) and (B) and Section 8(e). torical inclusion in the unit rendered it inappropriate; th e 8(bX4)(ii)'A) and (B) and Seto 8-e) , . third has to do with defining the overall scope of the Counsel for Respondent El San Juan stated in his unit. brief, relative to another point, that all musical groups T c a t te are self-employed whether they perform on a single en-. The complaint alleges that the appropriate unit con- are elf-mplyed heter tey prfom ona sngleen- sists of all steady engagement musicians employed by the gagement basis (i.e., one-night shows, also called a club hote l st of en Resent Assoemaloyexclusive 50 .. *.i tu'/^ti. *-. ~~~~hotel members of the Respondent Association exclusive date) or a steady engagement basis (as do the musicians o bandleaders and independent contractors. The General " Federacion de Musicos de Puerto Rico, Local 468 American Federtion Co un s el c o n t ends t h at Respondents El San Juan hotel, of Musicians, AFL-CIO (Pat Mills d/b/a Pat Mills and Company), 246 El Conquistador Hotel, and The Palace Hotel were NLRB 782 (1979). members of the Association for purposes of bargaining 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Use of the Form B contract in the Class AA hotels). He observes that a steady en- , , , ~~~gagement is simply an extended club date. Another miscellaneous area involves the language and ga s s l concerned me is whether the G.ner- use of the Form B contract. The General Counsel stress- The q t ta concessed in the es the language therein that refers to the hotel as an em- al Counsel could contend, as he did successfully in the ployer. Thuae record evidence is clearh however that the Pat Mills case, that the musical group there was engaged ployer. The record evidence is clear however th he by the Hotel l San Juan on an independent contractor only parts of that form that ever meant anythingagmet basis and still argue before me that the regular musical the weekly salaries, the starting date of an engagement, g are employees. The short answer is that he can as and the signature lines. it is settled law that each case turns on its own facts. In (c) The Association's legal status that regard, I note that there are some apparent differ- ences between the Pat Mills group and the Puerto Rican The Respondent Association notes that its own articles musicians involved in the instant case and that, in any of incorporation and bylaws contain no provision where- event, the independent contractor issue was not litigated by it is authorized to negotiate collective-bargaining in the Pat Mills case. agreements. I am not sure I understand the import of It is my finding, after weighing all of the relevant facts that observation; the doctrine of ultra vires is used to pre- in this case in the light of the guidelines set out by the vent corporate acts but not to excuse them. In any event, Restatement, that there exists an employer-employee re- I attach significant weight to the provisions of the lationship between the Class AA hotels and the musi- mutual aid pact drafted by the Respondent Association. cians involved in this case, rather than that of an inde- pendent contractor arrangement. The attributes of the (d) Entrepreneurial risk status of these musicians vis-a-vis the hotels are closely The Restatement, strangely, does not refer to entrepre- ak i n to those of individuals who concededly are hotel neurial risk in determining whether one is a servant or an employees, despite the obvious lack of any real commu- independent contractor. In any event, the musician in the nity o f in te r es t between the musicians and those employ- instant case is an hourly wage earner protected by unem- ee s. Further, the long history of collective bargaining, ployment and disability insurance with provision for sick the significant areas of control possessed and exercised days and allowances for a vacation. The hotels even by the hotels over the musicians, the close integration of assume liability if his musical instrument is stolen from th e ir work with the hotels' operations and functions, the the musician's room. There is virtually no risk of pecuni- f ac t t h at t h e musicians run virtually no risk of pecuniary ary loss for a Class AA hotel musician, in the ordinary lo s s, t h e fac t th at t h e l ead e rs o f t h e m u sical groups per- business sense. form functions substantially equivalent to a first-line su- pervisor in charge of a departmental unit of skilled indi- te) The "Pat Mills" case viduals, and the other points noted above-all persuade me that a master-servant relationship exists, as contem- In a decision issued in 1979, the Board found that the plated by the common law rules of agency, between the leaders of a musical group that performed at one of the musicians and the Class AA hotels in this case. In ac- Class AA hotels, the El San Juan, were self-employed cordance with established principles, the musicians are persons."' That case was referred to by the parties at the thus found to be employees as defined in Section 2(3) of hearing before me as the "Pat Mills" case as the name of the Act and not independent contractors. I further find the musical group in that case consisted of Pat Mills and that the leaders of the musical groups in this case, inter Peter LaJeunesse, d/b/a Pat Mills and Company. In that alia, responsibly direct the work of the musicians and case, as discussed above, the Pat Mills group came from that they are thus supervisors as defined in Section 2(11) New York to put on a show at the El San Juan and were of the Act. forced to leave by the Union, the Charging Party in the instant case, when it threatened to call a strike among its B. The Appropriate Unit members performing at the El San Juan hotel. There was There are three matters to be considered in determin- no issue raised in that case as to the independent contrac- t h e so e three apprsrte unit.re ir retes to tor status of the Pat Mills group. The Union admitted "8 t h e Gepnera the approplnate unit. The first relates to that the leaders of that group were self-employed per- t h e G e ne ral Counsels contention that three of the Class sons. It sought to defend on the ground that its object wid euntina unwithdranner; the assivlathe was purely work preservation; however, it was held that md o t he R n de n t A a tion t h a t e l ead e s hi the evidence showed that the Union violated Section claim of the Respondent Association that the leaders' his- 8(bX4Xii)(A) and (B) and Section 8(e). torical inclusion in the unit rendered it inappropriate; th e 8(bX4)(ii)'A) and (B) and Seto 8-e) , . third has to do with defining the overall scope of the Counsel for Respondent El San Juan stated in his unit. brief, relative to another point, that all musical groups T c a t te are self-employed whether they perform on a single en-. The complaint alleges that the appropriate unit con- are elf-mplyed heter tey prfom ona sngleen- sists of all steady engagement musicians employed by the gagement basis (i.e., one-night shows, also called a club hote l st of en Resent Assoemaloyexclusive 50 .. *.i tu'/^ti. *-. ~~~~hotel members of the Respondent Association exclusive date) or a steady engagement basis (as do the musicians o bandleaders and independent contractors. The General " Federacion de Musicos de Puerto Rico, Local 468 American Federtion Co un s el c o n t ends t h at Respondents El San Juan hotel, of Musicians, AFL-CIO (Pat Mills d/b/a Pat Mills and Company), 246 El Conquistador Hotel, and The Palace Hotel were NLRB 782 (1979). members of the Association for purposes of bargaining 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Use of the Form B contract in the Class AA hotels). He observes that a steady en- , , , ~~~gagement is simply an extended club date. Another miscellaneous area involves the language and ga s s l concerned me is whether the G.ner- use of the Form B contract. The General Counsel stress- The q t ta concessed in the es the language therein that refers to the hotel as an em- al Counsel could contend, as he did successfully in the ployer. Thuae record evidence is clearh however that the Pat Mills case, that the musical group there was engaged ployer. The record evidence is clear however th he by the Hotel l San Juan on an independent contractor only parts of that form that ever meant anythingagmet basis and still argue before me that the regular musical the weekly salaries, the starting date of an engagement, g are employees. The short answer is that he can as and the signature lines. it is settled law that each case turns on its own facts. In (c) The Association's legal status that regard, I note that there are some apparent differ- ences between the Pat Mills group and the Puerto Rican The Respondent Association notes that its own articles musicians involved in the instant case and that, in any of incorporation and bylaws contain no provision where- event, the independent contractor issue was not litigated by it is authorized to negotiate collective-bargaining in the Pat Mills case. agreements. I am not sure I understand the import of It is my finding, after weighing all of the relevant facts that observation; the doctrine of ultra vires is used to pre- in this case in the light of the guidelines set out by the vent corporate acts but not to excuse them. In any event, Restatement, that there exists an employer-employee re- I attach significant weight to the provisions of the lationship between the Class AA hotels and the musi- mutual aid pact drafted by the Respondent Association. cians involved in this case, rather than that of an inde- pendent contractor arrangement. The attributes of the (d) Entrepreneurial risk status of these musicians vis-a-vis the hotels are closely The Restatement, strangely, does not refer to entrepre- ak i n to those of individuals who concededly are hotel neurial risk in determining whether one is a servant or an employees, despite the obvious lack of any real commu- independent contractor. In any event, the musician in the nity o f in te r es t between the musicians and those employ- instant case is an hourly wage earner protected by unem- ee s. Further, the long history of collective bargaining, ployment and disability insurance with provision for sick the significant areas of control possessed and exercised days and allowances for a vacation. The hotels even by the hotels over the musicians, the close integration of assume liability if his musical instrument is stolen from th e ir work with the hotels' operations and functions, the the musician's room. There is virtually no risk of pecuni- f ac t t h at t h e musicians run virtually no risk of pecuniary ary loss for a Class AA hotel musician, in the ordinary lo s s, t h e fac t th a t t h e l ead e rs o f t h e m u sical groups per- business sense. form functions substantially equivalent to a first-line su- pervisor in charge of a departmental unit of skilled indi- te) The "Pat Mills" case viduals, and the other points noted above-all persuade me that a master-servant relationship exists, as contem- In a decision issued in 1979, the Board found that the plated by the common law rules of agency, between the leaders of a musical group that performed at one of the musicians and the Class AA hotels in this case. In ac- Class AA hotels, the El San Juan, were self-employed cordance with established principles, the musicians are persons."' That case was referred to by the parties at the thus found to be employees as defined in Section 2(3) of hearing before me as the "Pat Mills" case as the name of the Act and not independent contractors. I further find the musical group in that case consisted of Pat Mills and that the leaders of the musical groups in this case, inter Peter LaJeunesse, d/b/a Pat Mills and Company. In that alia, responsibly direct the work of the musicians and case, as discussed above, the Pat Mills group came from that they are thus supervisors as defined in Section 2(11) New York to put on a show at the El San Juan and were of the Act. forced to leave by the Union, the Charging Party in the instant case, when it threatened to call a strike among its B. The Appropriate Unit members performing at the El San Juan hotel. There was There are three matters to be considered in determin- no issue raised in that case as to the independent contrac- t h e so e three apprsrte unit.re ir retes to tor status of the Pat Mills group. The Union admitted "8 t h e Gepnera the approplnate unit. The first relates to that the leaders of that group were self-employed per- t h e G e ne ra l Counsels contention that three of the Class sons. It sought to defend on the ground that its object wid eut an unwithdranner; the assivlathe was purely work preservation; however, it was held that md o t he R n de n t A a tion t h a t e l ead e s hi the evidence showed that the Union violated Section claim of the Respondent Association that the leaders' his- 8(bX4Xii)(A) and (B) and Section 8(e). torical inclusion in the unit rendered it inappropriate; th e 8(bX4)(ii)'A) and (B) and Seto 8-e) , . third has to do with defining the overall scope of the Counsel for Respondent El San Juan stated in his unit. brief, relative to another point, that all musical groups T c a t te are self-employed whether they perform on a single en-. The complaint alleges that the appropriate unit con- are elf-mplyed heter tey prfom ona sngleen- sists of all steady engagement musicians employed by the gagement basis (i.e., one-night shows, also called a club hote l st of en Resent Assoemaloyexclusive 50 .. *.i tu'/^ti. *-. ~~~~hotel members of the Respondent Association exclusive date) or a steady engagement basis (as do the musicians o bandleaders and independent contractors. The General " Federacion de Musicos de Puerto Rico, Local 468, American Federtion Co un s el c o n t ends t h at Respondents El San Juan hotel, of Musicians, AFL-CIO (Pat Mills d/b/a Pat Mills and Company), 246 El Conquistador Hotel, and The Palace Hotel were NLRB 782 (1979). members of the Association for purposes of bargaining PUERTO RICO HOTEL ASSOCIATION 447 collectively with the Union and that they sought to ticipation of the Class AA hotels in negotiating through withdraw from that unit after negotiations for a renewal the Respondent Association establish the scope of the contract were well underway. These three Respondents, overall unit-all steady engagement musicians employed through counsel, have asserted that they were not mem- by the Class AA hotels in Puerto Rico excluding leaders, bers of the Association and hence that they have no obli- independent contractors, travelers, and all other employ- gations as to anyone with respect to the unit alleged in ees. the complaint. The evidence is clear that these hotels are commonly owned and controlled and administer a C. The Union's Majority Status common labor relations policy. In that regard, their rep- resentatives (principally Louis Puro and Sam Schweit- T h e Respondent Association has denied that the Union zer) have signed contracts negotiated by the Respondent has represented an uncoerced majority of the unit em- Association and the Union covering steady engagement ployees, noting in that regard that the Union had never musicians and had aligned themselves with officials of been certified by the Board as their bargaining repre- other Class AA hotels in formulating and implementing a sentative and that some of the musicians had joined the mutual aid and protection pact designed to counter any Union years ago because, in their view, no musician whipsaw tactics that the Union might attempt. These would work with them if they did not join the Union. It three hotels made no effort to withdraw from the unit appears too that some of these musicians, and others, until after the Union had, as requested by the Respond- were of the view that the Union enhanced their status as ent Association, presented its list of bargaining demands. musicians. Throughout the course of the negotiations in Moreover, Puro made it clear before the strike began 1979, all the musicians in the unit involved herein were that he would follow the Association's lead and he made members of the Union. It was not until after the strike it clear too when the strike ended that the contract nego- was over that some musicians resigned from the Union tiated with the Association was acceptable to him and he or were dropped from its membership rolls because of even agreed to the minimum number of musicians his their failure to remain current in their payment of dues hotels would use. I thus find that, at all times material to to the Union. this case, Respondents El San Juan, El Conquistador, I see no basis to conclude that the Union did not rep- and The Palace were part of the Associationwide unit resent an uncoerced majority. The evidence is clear that for purposes of collective bargaining with the Union.'" at all material times the Union has been the choice of the Their refusal to honor the commitments made on their majority of the unit musicians. I had some pause by behalf by the Respondent Association constitute unlaw- reason of the involvement of supervisory personnel, i.e., ful bargaining." the leaders, in union affairs, but it is evident that the unit The next consideration involves the fact that for years employees rejected the efforts of the leaders to block a the bandleaders were part of the recognized unit. Re- strike. Union membership by leaders does not per se spondents contend that their inclusion compels a finding impair the Union's majority status.22 that the unit is inappropriate. I note that the unit place- ment of leaders was never an issue in the negotiations. D. Alleged Unlawful Conditions Imposed by the To invalidate the substantial impact of those negotiations Respondent Association as to Continuation or now after so many years, especially where it is well set- Resumption of Collective Bargaining tied that the inclusion of supervisors in a unit does not T R ii ii i render it inappropriate," would undermine the stability T h e esondent Assocaton maitais that it never reached in that whole area. Rather, the exclusion now of expressly conditioned bargaining with the Unionon its the leaders is appropriate as either party to the negotia- rst withdrawing unfair labor practice charges or on its tions may opt, at any time, to exclude them without de- co n e d on t h at t h e mscians are not hotel employees stroying the employee unit itself. 21 The Respondent Association nevertheless acknowledges The third matter to be considered pertains to the scope th a t the status o f the m u sicians as h o te l employees was a stroying the employee Unit itself. 2' that the status of the musicians as hotel employees was a The third matter to be considered pertains to the scope threshold issue that had, by necessity, to be solved of the unit. In the complaint, it was alleged that the mu- th re h o ld s su e t h at had b y n e ces s ty t b e s o lv ed sicians employed by all 34 hotel members of the Re- Association's agents may not have stated that view in sicians employed by all 34 hotel members of the Re- before bargaining could continue. While the Respondent spondent Association constitute an appropriate unit. The Assoc ations agents may not have stated that view in issue was more closely defined in the course of the hear- haec v erba d u nng the a ct ua l negotiations, there is no ing as the partes addressed themselves to the specif question that it insisted that the Union in essence must question as to the musicians employed by the Class AA acknowledge that the unit employees were without the hotels in Pueto Rico and the related contract negotia- protection of the Act before any raise in wages or relat- htions. More speciico all the resiated c ontract negoti- ed matters could be considered or discussed. In view of tions. More specifically the signatory hotels to the the finding above that the musicians are employees of the mutual aid and protection pact in late 1978 and the par- th e finding above that the musicians are employees of the l aid ad pro io p in l 1 a t pr- hotels entitled to the protection of the Act, the actions of " Charles D. Bonanno Linen Servicn Inc., 243 NLRB 1093 (1979); the Respondent Association and its member hotels in Retail Associates Inc., 120 NLRB 388, 395 (1958). conditioning bargaining as indicated herein constituted " WmI Chalson & Co., Inc., 252 NLRB 25 (1980); L B. Priester t Son, unlawful refusals to bargain collectively with the Union. Inc, 252 NLRB 236 (1980). See also Teckwal Corp, 253 NLRB 187 The Respondent Association, Respondent Caribe (1980). ' Florida Power & Light Co. v. International Brotherhood of Electrical Hilton, Respondent Condado Holiday Inn, and Respond- Workers, Local 641, et a., 417 U.S. 790, fn. 3 (1974). " Federal Compress & Warehouse Company v. N.LR.B., 398 F.2d 631 " Cf. Industry Products Company, 251 NLRB 1380 (1980). See also (6th Cir. 1968). Florida Power and Light Co. supra. PUERTO RICO HOTEL ASSOCIATION 447 collectively with the Union and that they sought to ticipation of the Class AA hotels in negotiating through withdraw from that unit after negotiations for a renewal the Respondent Association establish the scope of the contract were well underway. These three Respondents, overall unit-all steady engagement musicians employed through counsel, have asserted that they were not mem- by the Class AA hotels in Puerto Rico excluding leaders, bers of the Association and hence that they have no obli- independent contractors, travelers, and all other employ- gations as to anyone with respect to the unit alleged in ees. the complaint. The evidence is clear that these hotels are commonly owned and controlled and administer a C. The Union's Majority Status common labor relations policy. In that regard, their rep- T R A ... .. . . resentatives (principally Louis Puro and Sam Schweit- T h e Respondent Association has denied that the Union zer) have signed contracts negotiated by the Respondent h a s represented an uncoerced majority of the unit em- Association and the Union covering steady engagement ployees, noting in that regard that the Union had never musicians and had aligned themselves with officials of been certified by the Board as their bargaining repre- other Class AA hotels in formulating and implementing a sentative and that some of the musicians had joined the mutual aid and protection pact designed to counter any Uni o n years ago because, in their view, no musician whipsaw tactics that the Union might attempt. These w o u ld work with them if they did not join the Union. It three hotels made no effort to withdraw from the unit appears too that some of these musicians, and others, until after the Union had, as requested by the Respond- w e re o f the view that the Union enhanced their status as ent Association, presented its list of bargaining demands. musicians. Throughout the course of the negotiations in Moreover, Puro made it clear before the strike began 1 9 7 9, a ll the musicians in the unit involved herein were that he would follow the Association's lead and he made members of the Union. It was not until after the strike it clear too when the strike ended that the contract nego- w a s over that some musicians resigned from the Union tiated with the Association was acceptable to him and he or were dropped from its membership rolls because of even agreed to the minimum number of musicians his their failure to remain current in their payment of dues hotels would use. I thus find that, at all times material to to the Union. this case, Respondents El San Juan, El Conquistador, I see no basis to conclude that the Union did not rep- and The Palace were part of the Associationwide unit resent an uncoerced majority. The evidence is clear that for purposes of collective bargaining with the Union.", at all material times the Union has been the choice of the Their refusal to honor the commitments made on their majority of the unit musicians. I had some pause by behalf by the Respondent Association constitute unlaw- reason of the involvement of supervisory personnel, i.e., ful bargaining."'the leaders, in union affairs, but it is evident that the unit The next consideration involves the fact that for years employees rejected the efforts of the leaders to block a the bandleaders were part of the recognized unit. Re- strike. Union membership by leaders does not per se spondents contend that their inclusion compels a finding impair the Union's majority status.22 that the unit is inappropriate. I note that the unit place- ment of leaders was never an issue in the negotiations. D. Alleged Unlawful Conditions Imposed by the To invalidate the substantial impact of those negotiations Respondent Association as to Continuation or now after so many years, especially where it is well set- Resumption of Collective Bargaining tied that the inclusion of supervisors in a unit does not T R n A m that it n render it inappropriate," would undermine the stability T h e ess pondent Association maintains that it never reached in that whole area. Rather, the exclusion now of expressly conditioned bargaining with the Union on its the leaders is appropriate as either party to the negotia- n r st withdrawing unfair labor practice charges or on its tions may opt, at any time, to exclude them without de- T c o n c e dR n d t h at t h eAsociaans are not hotel employees. stroying the employee unit itself. 21 tT h e Respondent Association nevertheless acknowledges The third matter to be considered pertains to the scope t ha t the status of the musicians as hotel employees was a of the unit. In the complaint, it was alleged that the mu- b th re b h o ld c s su e t h at had W b y a e c es s lty , t o b e Rs o lv ed sicians employed by all 34 hotel members of the Re- before bargaining could continue. While the Respondent spondent Association constitute an appropriate unit. The Association s agents may not have stated that view in issue was more closely defined in the course of the hear- ha ec v er ba s d u tins ise actual negotiations, there is no ing as the parties addressed themselves to the specific qu esi o n t h a t a t n n s e s ted t h at th e U n n o n e e ess en we e m u s t question as to the musicians employed by the Class AA acknowledge that the unit employees were without the hotels in Puerto Rico and the related contract negotia- protection of the Act before any raise in wages or relat- hotions.in Perto s icoanly the signatedontract hteloti- t ed m at t er s c o u ld be considered or discussed. In view of tions. More specifically the signatory hotels to the thfidnabvtathemscnsrempoesfte mutual aid and protection pact in late 1978 and the par- th e fi"ding above that the musicians are employees of the mutual aid and protection pact in late 1978 and the par- hotels entitled to the protection of the Act, the actions of " Charles D. Bonanno Linen Seric. Inc., 243 NLRB 1093 (1979); the Respondent Association and its member hotels in Retail Associates. Inc., 120 NLRB 388, 395 (1958). conditioning bargaining as indicated herein constituted to WmI Chalson < Co., Inc., 252 NLRB 25 (1980); L B. priester & Son, unlawful refusals to bargain collectively with the Union. Inc, 2 5 2 N L R B 23 6 ( 19 80). S e e a l s o T e c k w al C o rp , 253 N L R B 1 87 T h e Respondent Association, Respondent Caribe (1980). w Florida Power s Light Co. v. International Brotherhood of Electrical Hilton, Respondent Condado Holiday Inn, and Respond- Workers, Local 641. et at. 417 U.S. 790, fn. 3 (1974). " Federal Compress & Warehouse Company v. N.L.R.B., 398 F.2d 631 » Cf. Industry Products Company, 251 NLRB 1380 (1980). See also (6th Cir. 1968).Florida Power and Light Co.. supra. PUERTO RICO HOTEL ASSOCIATION 447 collectively with the Union and that they sought to ticipation of the Class AA hotels in negotiating through withdraw from that unit after negotiations for a renewal the Respondent Association establish the scope of the contract were well underway. These three Respondents, overall unit-all steady engagement musicians employed through counsel, have asserted that they were not mem- by the Class AA hotels in Puerto Rico excluding leaders, bers of the Association and hence that they have no obli- independent contractors, travelers, and all other employ- gations as to anyone with respect to the unit alleged in ees. the complaint. The evidence is clear that these hotels are commonly owned and controlled and administer a C. The Union's Majority Status common labor relations policy. In that regard, their rep- T R A ... .. . . resentatives (principally Louis Puro and Sam Schweit- T h e Respondent Association has denied that the Union zer) have signed contracts negotiated by the Respondent h a s represented an uncoerced majority of the unit em- Association and the Union covering steady engagement ployees, noting in that regard that the Union had never musicians and had aligned themselves with officials of been certified by the Board as their bargaining repre- other Class AA hotels in formulating and implementing a sentative and that some of the musicians had joined the mutual aid and protection pact designed to counter any Uni o n years ago because, in their view, no musician whipsaw tactics that the Union might attempt. These w o u ld work with them if they did not join the Union. It three hotels made no effort to withdraw from the unit appears too that some of these musicians, and others, until after the Union had, as requested by the Respond- were of the view that the Union enhanced their status as ent Association, presented its list of bargaining demands. musicians. Throughout the course of the negotiations in Moreover, Puro made it clear before the strike began 1 9 7 9, all the musicians in the unit involved herein were that he would follow the Association's lead and he made members of the Union. It was not until after the strike it clear too when the strike ended that the contract nego- was over that some musicians resigned from the Union tiated with the Association was acceptable to him and he or were dropped from its membership rolls because of even agreed to the minimum number of musicians his their failure to remain current in their payment of dues hotels would use. I thus find that, at all times material to to the Union. this case, Respondents El San Juan, El Conquistador, I see no basis to conclude that the Union did not rep- and The Palace were part of the Associationwide unit resent an uncoerced majority. The evidence is clear that for purposes of collective bargaining with the Union.", at all material times the Union has been the choice of the Their refusal to honor the commitments made on their majority of the unit musicians. I had some pause by behalf by the Respondent Association constitute unlaw- reason of the involvement of supervisory personnel, i.e., ful bargaining."'the leaders, in union affairs, but it is evident that the unit The next consideration involves the fact that for years employees rejected the efforts of the leaders to block a the bandleaders were part of the recognized unit. Re- strike. Union membership by leaders does not per se spondents contend that their inclusion compels a finding impair the Union's majority status.22 that the unit is inappropriate. I note that the unit place- ment of leaders was never an issue in the negotiations. D. Alleged Unlawful Conditions Imposed by the To invalidate the substantial impact of those negotiations Respondent Association as to Continuation or now after so many years, especially where it is well set- Resumption of Collective Bargaining tied that the inclusion of supervisors in a unit does not T R n A m that it n render it inappropriate," would undermine the stability T h ep espondent Association maintains that it never reached in that whole area. Rather, the exclusion now of expressly conditioned bargaining with the Union on its the leaders is appropriate as either party to the negotia- n r st withdrawing unfair labor practice charges or on its tions may opt, at any time, to exclude them without de- c o n c e dR n d t h at t h eAssicians are not hotel employees. stroying the employee unit itself. 21 tT h e stap 0 u f 1 h Association nevertheless acknowledges The third matter to be considered pertains to the scope t ha t the status of the musicians as hotel employees was a of the unit. In the complaint, it was alleged that the mu- b th re b h o ld c s su e t h at had W b y a e c es s lty , t o b e Rs o lv ed sicians employed by all 34 hotel members of the Re- before bargaining could continue. While the Respondent spondent Association constitute an appropriate unit. The Association s agents may not have stated that view in issue was more closely defined in the course of the hear- ha ec v er ba s d u tins ise actual negotiations, there is no ing as the parties addressed themselves to the specific qu esi o n t h a t a t n n s e s ted t h at th e U n n o n e e ess en we e m u s t question as to the musicians employed by the Class AA acknowledge that the unit employees were without the hotels in Puerto Rico and the related contract negotia- protection of the Act before any raise in wages or relat- hotions.in Perto s icoanly the signatedontract hteloti- t ed m at t er s c o u ld be considered or discussed. In view of tions. More specifically the signatory hotels to the thfidnabvtathemscnsrempoesfte mutual aid and protection pact in late 1978 and the par- th e fi"ding above that the musicians are employees of the mutual aid and protection pact in late 1978 and the par- hotels entitled to the protection of the Act, the actions of " Charles D. Bonanno Linen Seric. Inc., 243 NLRB 1093 (1979); the Respondent Association and its member hotels in Retail Associates. Inc., 120 NLRB 388, 395 (1958). conditioning bargaining as indicated herein constituted to WmI Chalson < Co., Inc., 252 NLRB 25 (1980); L B. priester & Son, unlawful refusals to bargain collectively with the Union. Inc, 2 5 2 N L R B 23 6 ( 19 80). S e e a l s o T e c k w al C o rp , 253 N L R B 1 87 T h e Respondent Association, Respondent Caribe (1980). w Florida Power s Light Co. v. International Brotherhood of Electrical Hilton, Respondent Condado Holiday Inn, and Respond- Workers, Local 641. et at. 417 U.S. 790, fn. 3 (1974). " Federal Compress & Warehouse Company v. N.L.R.B., 398 F.2d 631 » Cf. Industry Products Company, 251 NLRB 1380 (1980). See also (6th Cir. 1968).Florida Power and Light Co.. supra. PUERTO RICO HOTEL ASSOCIATION 447 collectively with the Union and that they sought to ticipation of the Class AA hotels in negotiating through withdraw from that unit after negotiations for a renewal the Respondent Association establish the scope of the contract were well underway. These three Respondents, overall unit-all steady engagement musicians employed through counsel, have asserted that they were not mem- by the Class AA hotels in Puerto Rico excluding leaders, bers of the Association and hence that they have no obli- independent contractors, travelers, and all other employ- gations as to anyone with respect to the unit alleged in ees. the complaint. The evidence is clear that these hotels are commonly owned and controlled and administer a C. The Union's Majority Status common labor relations policy. In that regard, their rep- T R A ... .. . . resentatives (principally Louis Puro and Sam Schweit- T h e Respondent Association has denied that the Union zer) have signed contracts negotiated by the Respondent h a s represented an uncoerced majority of the unit em- Association and the Union covering steady engagement ployees, noting in that regard that the Union had never musicians and had aligned themselves with officials of been certified by the Board as their bargaining repre- other Class AA hotels in formulating and implementing a sentative and that some of the musicians had joined the mutual aid and protection pact designed to counter any Uni o n years ago because, in their view, no musician whipsaw tactics that the Union might attempt. These would work with them if they did not join the Union. It three hotels made no effort to withdraw from the unit appears too that some of these musicians, and others, until after the Union had, as requested by the Respond- were of the view that the Union enhanced their status as ent Association, presented its list of bargaining demands. musicians. Throughout the course of the negotiations in Moreover, Puro made it clear before the strike began 1 9 7 9, all the musicians in the unit involved herein were that he would follow the Association's lead and he made members of the Union. It was not until after the strike it clear too when the strike ended that the contract nego- was over that some musicians resigned from the Union tiated with the Association was acceptable to him and he or were dropped from its membership rolls because of even agreed to the minimum number of musicians his their failure to remain current in their payment of dues hotels would use. I thus find that, at all times material to to the Union. this case, Respondents El San Juan, El Conquistador, I see no basis to conclude that the Union did not rep- and The Palace were part of the Associationwide unit resent an uncoerced majority. The evidence is clear that for purposes of collective bargaining with the Union.", at all material times the Union has been the choice of the Their refusal to honor the commitments made on their majority of the unit musicians. I had some pause by behalf by the Respondent Association constitute unlaw- reason of the involvement of supervisory personnel, i.e., ful bargaining."'the leaders, in union affairs, but it is evident that the unit The next consideration involves the fact that for years employees rejected the efforts of the leaders to block a the bandleaders were part of the recognized unit. Re- strike. Union membership by leaders does not per se spondents contend that their inclusion compels a finding impair the Union's majority status.22 that the unit is inappropriate. I note that the unit place- ment of leaders was never an issue in the negotiations. D. Alleged Unlawful Conditions Imposed by the To invalidate the substantial impact of those negotiations Respondent Association as to Continuation or now after so many years, especially where it is well set- Resumption of Collective Bargaining tied that the inclusion of supervisors in a unit does not T R n A m that it n render it inappropriate," would undermine the stability T h ep espondent Association maintains that it never reached in that whole area. Rather, the exclusion now of expressly conditioned bargaining with the Union on its the leaders is appropriate as either party to the negotia- n r st withdrawing unfair labor practice charges or on its tions may opt, at any time, to exclude them without de- c o n c e dR n d t h at t h eAssicians are not hotel employees. stroying the employee unit itself. 21 tT h e stap 0 u f 1 h Association nevertheless acknowledges The third matter to be considered pertains to the scope t ha t the status of the musicians as hotel employees was a of the unit. In the complaint, it was alleged that the mu- b th re b h o ld c s su e t h at had W b y a e c es s lty , t o b e Rs o lv ed sicians employed by all 34 hotel members of the Re- before bargaining could continue. While the Respondent spondent Association constitute an appropriate unit. The Association s agents may not have stated that view in issue was more closely defined in the course of the hear- ha ec v er ba s d u tins ise actual negotiations, there is no ing as the parties addressed themselves to the specific qu esi o n t h a t a t n n s e s ted t h at th e U n n o n e e ess en we e m u s t question as to the musicians employed by the Class AA acknowledge that the unit employees were without the hotels in Puerto Rico and the related contract negotia- protection of the Act before any raise in wages or relat- hotions.in Perto s icoanly the signatedontract hteloti- t ed m at t er s c o u ld be considered or discussed. In view of tions. More specifically the signatory hotels to the thfidnabvtathemscnsrempoesfte mutual aid and protection pact in late 1978 and the par- th e fi"ding above that the musicians are employees of the mutual aid and protection pact in late 1978 and the par- hotels entitled to the protection of the Act, the actions of " Charles D. Bonanno Linen Seric. Inc., 243 NLRB 1093 (1979); the Respondent Association and its member hotels in Retail Associates. Inc., 120 NLRB 388, 395 (1958). conditioning bargaining as indicated herein constituted to WmI Chalson < Co., Inc., 252 NLRB 25 (1980); L B. priester & Son, unlawful refusals to bargain collectively with the Union. Inc, 2 5 2 N L R B 23 6 ( 19 80). S e e a l s o T e c k w al C o rp , 253 N L R B 1 87 T h e Respondent Association, Respondent Caribe (1980). w Florida Power s Light Co. v. International Brotherhood of Electrical Hilton, Respondent Condado Holiday Inn, and Respond- Workers, Local 641. et at. 417 U.S. 790, fn. 3 (1974). " Federal Compress & Warehouse Company v. N.L.R.B., 398 F.2d 631 » Cf. Industry Products Company, 251 NLRB 1380 (1980). See also (6th Cir. 1968).Florida Power and Light Co.. supra. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent El San Juan, El Conquistador, and Palace all promot- tract does not cover such groups as Pat Mills, either be- ed the use of various forms of personal service contracts cause they are "travelers" or "independent contractors" to be signed by the Class AA hotels and leaders of musi- but it maintains still that it never expressly agreed to the cal groups. In and of themselves those form contracts insertion of the letters, AFM, in the recognition clause. could not be violative of the Act as they represent, in The Respondent Association notes that in the final drafts the context of this case, simply arrangements between of prior contracts minor language insertions have been employers and their supervisory personnel. What is im- made to reflect informal understandings. It appears that proper, however, is the acknowledged purpose of those neither side is contending that the parties agreed that the personal service contracts. Their use was promulgated contract was a members-only ontract. 24 and obviously used and known in the music industry in While the evidence is that the parties did not expressly Puerto Rico in furtherance of the position of the hotels agree to the insertion of the letters AFM, I find that the that they are not employers of the musicians performing evidence is insufficient to establish that the Respondent in the hotels. Simply stated, the personal service con- Association unilaterally changed the agreed-upon con- tracts were adopted and used to make it clear to all, in- tractual language by inserting those letters prior to final eluding the employees themselves, that the hotels would signature. The insertion was consistent with the intent of not bargain collectively with the Union respecting the the parties, however informal the agreement was there- wage rates and other terms of employment of the hotel on. Similar modifications of minor points have been done musicians. In effect, the use of the personal service con- before. I am not persuaded that the fact that the Union's tracts was but a variation of the method by which these president did not, when he signed the final draft of the Respondents unlawfully refused to bargain with the contract, consciously assent to the use of that insertion, Union, as found above. 23 I shall, however, dismiss the al- requires a finding that he did not assent to its use. In legation that the hotels' use of such personal service con- short, the Union and the Association reached an informal tracts constituted unlawful unilateral changes as the sub- agreement as to the scope of the recognition clause, the ject matter is not one requiring collective bargaining. In- Association sometime later made a change to reflect that sofar as the personal service contracts pertain solely to agreement as has been the practice in the past, and the arrangements among supervisory personnel, the Union Union signed the document without objection. That does would have no right to bargain thereon; insofar as they not add up to an unlawful unilateral change, notwith- purport to deny that the musicians are hotel employees, standing that, at first blush, the recognition clause could the Union's bargaining cannot change that fact. While it easily be misread to indicate that the parties had signed a is true as the General Counsel argues that the changes in members-only contract. the methods of paying musicians as contemplated by those personal services contracts constitute unilateral IV. THE ALLEGED DISCRIMINATORY DISCHARGE OF changes as to which bargaining should be required, those PEDRO CHICLANA BY RESPONDENT CARIBE HILTON changes were but incidental to the basic violation found. AND ALLEGED INDEPENDENT VIOLATIONS OF The greater encompasses the lesser. SECTION S(A)( ) OF THE ACT E. Alleged Unilateral Change in Language of the A. The Relevant Testimony and Related Credibility Recognition Clause Resolutions There was considerable dispute at the hearing as to 1 G whether the Respondent Association had unilaterally in-eneral ackground serted the letters AFM in the recognition clause of the The General Counsel alleges that the Respondent 1979-81 contract before it was signed. Thus, the Union's Caribe Hilton, by its supervisor, Bandleader Jose Juan president testified that he had never agreed to that inser- Pinero, discharged its musician employee, Pedro Chi- tion and was not aware that those letters had been insert- clana, because of his activities as a member of the Union ed into the final draft of the contract when he signed it. and interfered with the Section 7 rights of its musician Counsel for the Respondent Association, Soto, testified employees by reason of other conduct by Pinero, dis- that her notes at a negotiating session in February 1979 cussed in more detail below. The Respondent denies that reflect that the Union's president and the Respondent Pinero is a supervisor in its employ and contends that, Association's executive director reached agreement on a even if he were, none of his actions were violative of the number of items which they then initialed and that, Act. sometime later that day, the Union had agreed with the Pedro Chiclana began working at the Caribe Hilton Respondent Association that the Union's contract would hotel on December 20, 1971, as a saxophonist and as a not apply to groups such as the Pat Mills group. (It ap- flutist. From about 1973 or 1974, he performed at the pears that that the Respondcnt Association's members Club Caribe in the Caribe Hilton hotel under the leader- were concerned that somehow the 1978 contract might ship of Jose Juan Pinero as part of a group known as enable the Union to do legally what the Board had en- Pijuan and his sextet. He had been a member of the joined it from doing as a result of the Pat Mills case, dis- cussed above.) The Union acknowledges that the con- 2 One of the officials of the Respondent Association testified that he had expressed the opinion to other officials of the Association that the " As no evidence was offered that the La Concha-Condado Beach letters, AFM, indicated that the contract applied only to musicians who complex used such personal service contracts, the General Counsel's were members of the Union. On advice of counsel, the Association con- motion, made in its brief, to withdraw the complaint allegation thereon, is cedes that the contract covers hotel musicians, regardless of union mem- granted. bership. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent El San Juan, El Conquistador, and Palace all promot- tract does not cover such groups as Pat Mills, either be- ed the use of various forms of personal service contracts cause they are "travelers" or "independent contractors" to be signed by the Class AA hotels and leaders of musi- but it maintains still that it never expressly agreed to the cal groups. In and of themselves those form contracts insertion of the letters, AFM, in the recognition clause. could not be violative of the Act as they represent, in The Respondent Association notes that in the final drafts the context of this case, simply arrangements between of prior contracts minor language insertions have been employers and their supervisory personnel. What is im- made to reflect informal understandings. It appears that proper, however, is the acknowledged purpose of those neither side is contending that the parties agreed that the personal service contracts. Their use was promulgated contract was a members-only ontract. 24 and obviously used and known in the music industry in While the evidence is that the parties did not expressly Puerto Rico in furtherance of the position of the hotels agree to the insertion of the letters AFM, I find that the that they are not employers of the musicians performing evidence is insufficient to establish that the Respondent in the hotels. Simply stated, the personal service con- Association unilaterally changed the agreed-upon con- tracts were adopted and used to make it clear to all, in- tractual language by inserting those letters prior to final eluding the employees themselves, that the hotels would signature. The insertion was consistent with the intent of not bargain collectively with the Union respecting the the parties, however informal the agreement was there- wage rates and other terms of employment of the hotel on. Similar modifications of minor points have been done musicians. In effect, the use of the personal service con- before. I am not persuaded that the fact that the Union's tracts was but a variation of the method by which these president did not, when he signed the final draft of the Respondents unlawfully refused to bargain with the contract, consciously assent to the use of that insertion, Union, as found above. 23 I shall, however, dismiss the al- requires a finding that he did not assent to its use. In legation that the hotels' use of such personal service con- short, the Union and the Association reached an informal tracts constituted unlawful unilateral changes as the sub- agreement as to the scope of the recognition clause, the ject matter is not one requiring collective bargaining. In- Association sometime later made a change to reflect that sofar as the personal service contracts pertain solely to agreement as has been the practice in the past, and the arrangements among supervisory personnel, the Union Union signed the document without objection. That does would have no right to bargain thereon; insofar as they not add up to an unlawful unilateral change, notwith- purport to deny that the musicians are hotel employees, standing that, at first blush, the recognition clause could the Union's bargaining cannot change that fact. While it easily be misread to indicate that the parties had signed a is true as the General Counsel argues that the changes in members-only contract. the methods of paying musicians as contemplated by those personal services contracts constitute unilateral Iv. THE ALLEGED DISCRIMINATORY DISCHARGE OF changes as to which bargaining should be required, those PEDRO CHICLANA BY RESPONDENT CARIBE HILTON changes were but incidental to the basic violation found. AND ALLEGED INDEPENDENT VIOLATIONS OF The greater encompasses the lesser. SECTION S(A)(1) OF THE ACT E. Alleged Unilateral Change in Language of the A. The Relevant Testimony and Related Credibility Recognition Clause Resolutions There was considerable dispute at the hearing as to „ G bcgon whether the Respondent Association had unilaterally in- t j en er al background serted the letters AFM in the recognition clause of the The General Counsel alleges that the Respondent 1979-81 contract before it was signed. Thus, the Union's Caribe Hilton, by its supervisor, Bandleader Jose Juan president testified that he had never agreed to that inser- Pinero, discharged its musician employee, Pedro Chi- tion and was not aware that those letters had been insert- clana, because of his activities as a member of the Union ed into the final draft of the contract when he signed it. and interfered with the Section 7 rights of its musician Counsel for the Respondent Association, Soto, testified employees by reason of other conduct by Pinero, dis- that her notes at a negotiating session in February 1979 cussed in more detail below. The Respondent denies that reflect that the Union's president and the Respondent Pinero is a supervisor in its employ and contends that, Association's executive director reached agreement on a even if he were, none of his actions were violative of the number of items which they then initialed and that, Act. sometime later that day, the Union had agreed with the Pedro Chiclana began working at the Caribe Hilton Respondent Association that the Union's contract would hotel on December 20, 1971, as a saxophonist and as a not apply to groups such as the Pat Mills group. (It ap- flutist. From about 1973 or 1974, he performed at the pears that that the Respondent Association's members Club Caribe in the Caribe Hilton hotel under the leader- were concerned that somehow the 1978 contract might ship of Jose Juan Pinero as part of a group known as enable the Union to do legally what the Board had en- Pijuan and his sextet. He had been a member of the joined it from doing as a result of the Pat Mills case, dis- cussed above.) The Union acknowledges that the con- One of the officials of the Respondent Association testified that he had expressed the opinion to other officials of the Association that the 2 As no evidence was offered that the La Concha-Condado Beach letters, AFM, indicated that the contract applied only to musicians who complex used such personal service contracts, the General Counsel's were members of the Union. On advice of counsel, the Association con- motion, made in its brief, to withdraw the complaint allegation thereon, is cedes that the contract covers hotel musicians, regardless of union mem- granted. bership. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent El San Juan, El Conquistador, and Palace all promot- tract does not cover such groups as Pat Mills, either be- ed the use of various forms of personal service contracts cause they are "travelers" or "independent contractors" to be signed by the Class AA hotels and leaders of musi- but it maintains still that it never expressly agreed to the cal groups. In and of themselves those form contracts insertion of the letters, AFM, in the recognition clause. could not be violative of the Act as they represent, in The Respondent Association notes that in the final drafts the context of this case, simply arrangements between of prior contracts minor language insertions have been employers and their supervisory personnel. What is im- made to reflect informal understandings. It appears that proper, however, is the acknowledged purpose of those neither side is contending that the parties agreed that the personal service contracts. Their use was promulgated contract was a members-only ontract. 24 and obviously used and known in the music industry in While the evidence is that the parties did not expressly Puerto Rico in furtherance of the position of the hotels agree to the insertion of the letters AFM, I find that the that they are not employers of the musicians performing evidence is insufficient to establish that the Respondent in the hotels. Simply stated, the personal service con- Association unilaterally changed the agreed-upon con- tracts were adopted and used to make it clear to all, in- tractual language by inserting those letters prior to final eluding the employees themselves, that the hotels would signature. The insertion was consistent with the intent of not bargain collectively with the Union respecting the the parties, however informal the agreement was there- wage rates and other terms of employment of the hotel on. Similar modifications of minor points have been done musicians. In effect, the use of the personal service con- before. I am not persuaded that the fact that the Union's tracts was but a variation of the method by which these president did not, when he signed the final draft of the Respondents unlawfully refused to bargain with the contract, consciously assent to the use of that insertion, Union, as found above. 23 I shall, however, dismiss the al- requires a finding that he did not assent to its use. In legation that the hotels' use of such personal service con- short, the Union and the Association reached an informal tracts constituted unlawful unilateral changes as the sub- agreement as to the scope of the recognition clause, the ject matter is not one requiring collective bargaining. In- Association sometime later made a change to reflect that sofar as the personal service contracts pertain solely to agreement as has been the practice in the past, and the arrangements among supervisory personnel, the Union Union signed the document without objection. That does would have no right to bargain thereon; insofar as they not add up to an unlawful unilateral change, notwith- purport to deny that the musicians are hotel employees, standing that, at first blush, the recognition clause could the Union's bargaining cannot change that fact. While it easily be misread to indicate that the parties had signed a is true as the General Counsel argues that the changes in members-only contract. the methods of paying musicians as contemplated by those personal services contracts constitute unilateral Iv. THE ALLEGED DISCRIMINATORY DISCHARGE OF changes as to which bargaining should be required, those PEDRO CHICLANA BY RESPONDENT CARIBE HILTON changes were but incidental to the basic violation found. AND ALLEGED INDEPENDENT VIOLATIONS OF The greater encompasses the lesser. SECTION S(A)(1) OF THE ACT E. Alleged Unilateral Change in Language of the A. The Relevant Testimony and Related Credibility Recognition Clause Resolutions There was considerable dispute at the hearing as to „ G bcgon whether the Respondent Association had unilaterally in- t j en er al background serted the letters AFM in the recognition clause of the The General Counsel alleges that the Respondent 1979-81 contract before it was signed. Thus, the Union's Caribe Hilton, by its supervisor, Bandleader Jose Juan president testified that he had never agreed to that inser- Pinero, discharged its musician employee, Pedro Chi- tion and was not aware that those letters had been insert- clana, because of his activities as a member of the Union ed into the final draft of the contract when he signed it. and interfered with the Section 7 rights of its musician Counsel for the Respondent Association, Soto, testified employees by reason of other conduct by Pinero, dis- that her notes at a negotiating session in February 1979 cussed in more detail below. The Respondent denies that reflect that the Union's president and the Respondent Pinero is a supervisor in its employ and contends that, Association's executive director reached agreement on a even if he were, none of his actions were violative of the number of items which they then initialed and that, Act. sometime later that day, the Union had agreed with the Pedro Chiclana began working at the Caribe Hilton Respondent Association that the Union's contract would hotel on December 20, 1971, as a saxophonist and as a not apply to groups such as the Pat Mills group. (It ap- flutist. From about 1973 or 1974, he performed at the pears that that the Respondent Association's members Club Caribe in the Caribe Hilton hotel under the leader- were concerned that somehow the 1978 contract might ship of Jose Juan Pinero as part of a group known as enable the Union to do legally what the Board had en- Pijuan and his sextet. He had been a member of the joined it from doing as a result of the Pat Mills case, dis- cussed above.) The Union acknowledges that the con- One of the officials of the Respondent Association testified that he had expressed the opinion to other officials of the Association that the 2 As no evidence was offered that the La Concha-Condado Beach letters, AFM, indicated that the contract applied only to musicians who complex used such personal service contracts, the General Counsel's were members of the Union. On advice of counsel, the Association con- motion, made in its brief, to withdraw the complaint allegation thereon, is cedes that the contract covers hotel musicians, regardless of union mem- granted. bership. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent El San Juan, El Conquistador, and Palace all promot- tract does not cover such groups as Pat Mills, either be- ed the use of various forms of personal service contracts cause they are "travelers" or "independent contractors" to be signed by the Class AA hotels and leaders of musi- but it maintains still that it never expressly agreed to the cal groups. In and of themselves those form contracts insertion of the letters, AFM, in the recognition clause. could not be violative of the Act as they represent, in The Respondent Association notes that in the final drafts the context of this case, simply arrangements between of prior contracts minor language insertions have been employers and their supervisory personnel. What is im- made to reflect informal understandings. It appears that proper, however, is the acknowledged purpose of those neither side is contending that the parties agreed that the personal service contracts. Their use was promulgated contract was a members-only ontract. 24 and obviously used and known in the music industry in While the evidence is that the parties did not expressly Puerto Rico in furtherance of the position of the hotels agree to the insertion of the letters AFM, I find that the that they are not employers of the musicians performing evidence is insufficient to establish that the Respondent in the hotels. Simply stated, the personal service con- Association unilaterally changed the agreed-upon con- tracts were adopted and used to make it clear to all, in- tractual language by inserting those letters prior to final eluding the employees themselves, that the hotels would signature. The insertion was consistent with the intent of not bargain collectively with the Union respecting the the parties, however informal the agreement was there- wage rates and other terms of employment of the hotel on. Similar modifications of minor points have been done musicians. In effect, the use of the personal service con- before. I am not persuaded that the fact that the Union's tracts was but a variation of the method by which these president did not, when he signed the final draft of the Respondents unlawfully refused to bargain with the contract, consciously assent to the use of that insertion, Union, as found above. 23 I shall, however, dismiss the al- requires a finding that he did not assent to its use. In legation that the hotels' use of such personal service con- short, the Union and the Association reached an informal tracts constituted unlawful unilateral changes as the sub- agreement as to the scope of the recognition clause, the ject matter is not one requiring collective bargaining. In- Association sometime later made a change to reflect that sofar as the personal service contracts pertain solely to agreement as has been the practice in the past, and the arrangements among supervisory personnel, the Union Union signed the document without objection. That does would have no right to bargain thereon; insofar as they not add up to an unlawful unilateral change, notwith- purport to deny that the musicians are hotel employees, standing that, at first blush, the recognition clause could the Union's bargaining cannot change that fact. While it easily be misread to indicate that the parties had signed a is true as the General Counsel argues that the changes in members-only contract. the methods of paying musicians as contemplated by those personal services contracts constitute unilateral Iv. THE ALLEGED DISCRIMINATORY DISCHARGE OF changes as to which bargaining should be required, those PEDRO CHICLANA BY RESPONDENT CARIBE HILTON changes were but incidental to the basic violation found. AND ALLEGED INDEPENDENT VIOLATIONS OF The greater encompasses the lesser. SECTION S(A)(1) OF THE ACT E. Alleged Unilateral Change in Language of the A. The Relevant Testimony and Related Credibility Recognition Clause Resolutions There was considerable dispute at the hearing as to „ G bcgon whether the Respondent Association had unilaterally in- t j en er al Background serted the letters AFM in the recognition clause of the The General Counsel alleges that the Respondent 1979-81 contract before it was signed. Thus, the Union's Caribe Hilton, by its supervisor, Bandleader Jose Juan president testified that he had never agreed to that inser- Pinero, discharged its musician employee, Pedro Chi- tion and was not aware that those letters had been insert- clana, because of his activities as a member of the Union ed into the final draft of the contract when he signed it. and interfered with the Section 7 rights of its musician Counsel for the Respondent Association, Soto, testified employees by reason of other conduct by Pinero, dis- that her notes at a negotiating session in February 1979 cussed in more detail below. The Respondent denies that reflect that the Union's president and the Respondent Pinero is a supervisor in its employ and contends that, Association's executive director reached agreement on a even if he were, none of his actions were violative of the number of items which they then initialed and that, Act. sometime later that day, the Union had agreed with the Pedro Chiclana began working at the Caribe Hilton Respondent Association that the Union's contract would hotel on December 20, 1971, as a saxophonist and as a not apply to groups such as the Pat Mills group. (It ap- flutist. From about 1973 or 1974, he performed at the pears that that the Respondent Association's members Club Caribe in the Caribe Hilton hotel under the leader- were concerned that somehow the 1978 contract might ship of Jose Juan Pinero as part of a group known as enable the Union to do legally what the Board had en- Pijuan and his sextet. He had been a member of the joined it from doing as a result of the Pat Mills case, dis- cussed above.) The Union acknowledges that the con- One of the officials of the Respondent Association testified that he had expressed the opinion to other officials of the Association that the 2 As no evidence was offered that the La Concha-Condado Beach letters, AFM, indicated that the contract applied only to musicians who complex used such personal service contracts, the General Counsel's were members of the Union. On advice of counsel, the Association con- motion, made in its brief, to withdraw the complaint allegation thereon, is cedes that the contract covers hotel musicians, regardless of union mem- granted. bership. PUERTO RICO HOTEL ASSOCIATION 449 Union for many years as had Pinero. For that matter, he too "went out in the picket line" where he observed Pinero had been much more active in union affairs than that one placard referred to him as "rat." Pinero denied Chiclana had been. Pinero had, for a 2-year period, held ever expressly instructing members of his sextet to re- the position as vice president of the Union and had also frain from picketing. In view of the confusion respecting been a member of an advisory council to the Union's the precise sequence of events, the excitement caused by president. the first strike among musicians in the hotel industry in Puerto Rico and the fact that no witnesses were offered 2. Alleged independent violations of Section 8(aXl) by the General Counsel to corroborate Chiclana's state- In February 1979, about 100 members of the Union ments that the members of the sextet were ordered by gathered at its meeting hall to vote on contract ratifica- Pinero not to picket, I am not satisfied that the General tion. The contract was rejected. A strike vote was then Counsel has sustained his burden of proving affirmatively scheduled to be taken. Pinero protested and spoke out that Chiclana's version is more credible than Pinero's de- against the Union's calling a strike. In the absence of any nials. 25 In that regard, I note that a union delegate named evidence thereon, I assume that Chiclana took no active Rivera testified at the hearing but on a point entirely dis- part one way or the other at that meeting. The strike tinct from any argument with Pinero, as recounted by vote was taken and, as a result, an immediate strike was Chiclana. authorized. During the strike of the hotels' musicians, the Pijuan Chiclana testified that, after the strike vote was taken sextet (with some minor changes, e.g., the singer was re- and while he was in the driveway outside the building in placed) performed at a television studio located adjacent which the vote had been taken, Pinero approached him to the Caribe Hilton. Chiclana continued to perform and others who were in the Pijuan sextet. Chiclana testi- there with the sextet, notwithstanding that during those fled that Pinero said to them then that he did not want same months he was doing picketing duty at the hotels. them on the picket line and that they were to meet with Sometime before the strike ended Pinero resigned from him later that evening in the musicians' room in the membership in the Union. The sextet, including Chi- Caribe Hilton hotel. One of the other members of the clana, resumed performing at the Caribe Hilton when the Pijuan sextet at that time, Hector Negron, also testified strike ended. at the hearing. However, he made no reference to such a The General Counsel presented three witnesses, in- meeting in the driveway that day. Pinero testified that he cluding Chiclana, who testified that, at a meeting in the never had given any order to Chiclana to refrain from musicians' room at the Caribe Hilton shortly after the picketing; Pinero did not refer to any meeting of his strike ended in late April 1979, a union official sought to sextet in the building's driveway, as Chiclana had. Al- collect "taxes"; i.e., working dues to be paid to the though Pinero's denial is summary in nature and Chi- union. At that meeting, according to these witnesses, clana's account is detailed, I am not persuaded, especially Pinero said that he himself had discontinued paying as Negron failed to corroborate Chiclana's testimony on "taxes" to the Union and that he wanted the musicians in the point, that the General Counsel has shown affirma- his group also to stop paying "taxes." Pinero's testimony tively that Pinero issued an instruction to members of his was general in nature and in essence was a statement that sextet on the day of the strike vote to refrain from pick- he never engaged in any action, as alleged in the com- eting. Pinero's denial is thus credited. plaint, that he had interfered with the musicians' right to Chiclana further testified that, when he arrived at the pay "taxes" to the Union. Pinero acknowledged that Caribe Hilton later that night, there were several pickets there had been a meeting pertaining to the payment of outside. He said that one of them recognized him as a taxes but did not elaborate on it. I credit the accounts of member of the Pijuan sextet and pulled him onto the the General Counsel's witnesses as they were substantial- picket line. Chiclana related that, about 20 minutes later, ly consistent and detailed, in contrast to the summary Pinero arrived at the hotel and that, when he saw Chi- nature of Pinero's version. clana on the picket line, he told Chiclana that he did not want to see him on the picket line. Chiclana further 3. Chiclana's discharge stated that after about 2 hours he noticed that he and a , P s few other musicians were the only ones from the Caribe Hilton who were on the picket line then and that he de- singer) began performing as part of an early evening tele- cided to go into the hotel. He testified that he left thethe strke picket line and that, as he entered the musicians' room, e nd e d w h e n t res um e d at t h e l ub b e th e he heard Pinero arguing with a union delegate, Chico Canbe Hilton hotel. Rivera, telling Rivera that he, Pinero, did not have to On June 27 1979, Chiclana arrived at the television order his musicians to go outside; i.e., join the strike. studio just prior to the start of the show featuring the Chiclana said that the leader of another group perform- Piuan sextet While he was chattingin n the parking lot ing at the Caribe Hilton, namely, Mario Ortiz, intervened with some friends Pinero drove in and a few minutes and suggested that everyone should go outside to discuss later walked by Chclana and told him abruptly to go the matter on the picket line. Chiclana said that most of nside. Chiclana testified that whenever Pinero is in a the musicians went outside to the picket line. D;_he musici;an. went * outsideto the1 picket ine. . For the same reason, I am unable to credit Chiclana's further testi- Pinero testified that he had told the union delegate 2 For the same reason I am ble to redit C hicana's the picket mony that, on the same day of the strike, Pinero saw him on the picket that evening that he was in no hurry to get on the picket line at the Caribe Hilton and told him to leave. Chiclana testified that, as line but that later everyone did go out. Pinero said that a result, he moved to a picket line outside another hotel. PUERTO RICO HOTEL ASSOCIATION 449 Union for many years as had Pinero. For that matter, he too "went out in the picket line" where he observed Pinero had been much more active in union affairs than that one placard referred to him as "rat." Pinero denied Chiclana had been. Pinero had, for a 2-year period, held ever expressly instructing members of his sextet to re- the position as vice president of the Union and had also frain from picketing. In view of the confusion respecting been a member of an advisory council to the Union's the precise sequence of events, the excitement caused by president. the first strike among musicians in the hotel industry in Puerto Rico and the fact that no witnesses were offered 2. Alleged independent violations of Section 8(a)1) by the General Counsel to corroborate Chiclana's state- In February 1979, about 100 members of the Union ments that the members of the sextet were ordered by gathered at its meeting hall to vote on contract ratifica- Pinero not to picket, I am not satisfied that the General tion. The contract was rejected. A strike vote was then Counsel has sustained his burden of proving affirmatively scheduled to be taken. Pinero protested and spoke out that Chiclana's version is more credible than Pinero's de- against the Union's calling a strike. In the absence of any nials. 25 In that regard, I note that a union delegate named evidence thereon, I assume that Chiclana took no active Rivera testified at the hearing but on a point entirely dis- part one way or the other at that meeting. The strike tinct from any argument with Pinero, as recounted by vote was taken and, as a result, an immediate strike was Chiclana. authorized. During the strike of the hotels' musicians, the Pijuan Chiclana testified that, after the strike vote was taken sextet (with some minor changes, e.g., the singer was re- and while he was in the driveway outside the building in placed) performed at a television studio located adjacent which the vote had been taken, Pinero approached him to the Caribe Hilton. Chiclana continued to perform and others who were in the Pijuan sextet. Chiclana testi- there with the sextet, notwithstanding that during those fied that Pinero said to them then that he did not want same months he was doing picketing duty at the hotels. them on the picket line and that they were to meet with Sometime before the strike ended Pinero resigned from him later that evening in the musicians' room in the membership in the Union. The sextet, including Chi- Caribe Hilton hotel. One of the other members of the clana, resumed performing at the Caribe Hilton when the Pijuan sextet at that time, Hector Negron, also testified strike ended. at the hearing. However, he made no reference to such a The General Counsel presented three witnesses, in- meeting in the driveway that day. Pinero testified that he eluding Chiclana, who testified that, at a meeting in the never had given any order to Chiclana to refrain from musicians' room at the Caribe Hilton shortly after the picketing; Pinero did not refer to any meeting of his strike ended in late April 1979, a union official sought to sextet in the building's driveway, as Chiclana had. Al- collect "taxes"; i.e., working dues to be paid to the though Pinero's denial is summary in nature and Chi- union. At that meeting, according to these witnesses, clana's account is detailed, I am not persuaded, especially Pinero said that he himself had discontinued paying as Negron failed to corroborate Chiclana's testimony on "taxes" to the Union and that he wanted the musicians in the point, that the General Counsel has shown affirma- his group also to stop paying "taxes." Pinero's testimony tively that Pinero issued an instruction to members of his was general in nature and in essence was a statement that sextet on the day of the strike vote to refrain from pick- he never engaged in any action, as alleged in the com- eting. Pinero's denial is thus credited. plaint, that he had interfered with the musicians' right to Chiclana further testified that, when he arrived at the pay "taxes" to the Union. Pinero acknowledged that Caribe Hilton later that night, there were several pickets there had been a meeting pertaining to the payment of outside. He said that one of them recognized him as a taxes but did not elaborate on it. I credit the accounts of member of the Pijuan sextet and pulled him onto the the General Counsel's witnesses as they were substantial- picket line. Chiclana related that, about 20 minutes later, ly consistent and detailed, in contrast to the summary Pinero arrived at the hotel and that, when he saw Chi- nature of Pinero's version. clana on the picket line, he told Chiclana that he did not want to see him on the picket line. Chiclana further 3. Chiclana's discharge stated that after about 2 hours he noticed that he and a D , the P s ( adfe few other musicians were the only ones from the Caribe. Durin t h e s t nik e, th e Pij1""1 s ex tet (w it h a d iffe re ~n t Hilton who were on the picket line then and that he de- singer) began performing as part of an early evening tele- Hiltn wo wre o th piket inethe andtha hede- vision show. It continued with that show after the strike cided to go into the hotel. He testified that he left the e n wh e nitrs m edp layithat thel arite sthe picket line and that, as he entered the musicians' room, C e nd e d w h e n ht r es um ed pl. at t h e C l u b C a n b e *" th e he heard Pinero arguing with a union delegate, Chico O J 27, 197 , C a a t .. Rivera, telling Rivera that he, Pinero, did not have to s on J un e 27 p 1979, Chiclana arrived at the television order his musicians to go outside; i.e., join the strike. P st u d n sexet pWhil t o t h e st ar t o f t h e show featuring the Chiclana said that the leader of another group perform- Pwh som e xt etf. While he was chatting in the parking lot ing at the Caribe Hilton, namely, Mario Ortiz, intervened wl t h s om e fbyends, Pero drove in and a few minutes and suggested that everyone should go outside to discuss la t er w al k ed, C Chhclana and told him abruptly to go the matter on the picket line. Chiclana said that most of the musicians went outside to the picket line.---- the musicia ns w entoutsie »itol tt e he pi cket lne. » For the same reason, I am unable to credit Chiclana's further testi- Pinero testified that he had told the union delegate mony that, on the same day of the strike, Pinero saw him on the picket that evening that he was in no hurry to get on the picket line at the Caribe Hilton and told him to leave. Chiclana testified that, as line but that later everyone did go out. Pinero said that a result, he moved to a picket line outside another hotel. PUERTO RICO HOTEL ASSOCIATION 449 Union for many years as had Pinero. For that matter, he too "went out in the picket line" where he observed Pinero had been much more active in union affairs than that one placard referred to him as "rat." Pinero denied Chiclana had been. Pinero had, for a 2-year period, held ever expressly instructing members of his sextet to re- the position as vice president of the Union and had also frain from picketing. In view of the confusion respecting been a member of an advisory council to the Union's the precise sequence of events, the excitement caused by president. the first strike among musicians in the hotel industry in Puerto Rico and the fact that no witnesses were offered 2. Alleged independent violations of Section 8(a)1) by the General Counsel to corroborate Chiclana's state- In February 1979, about 100 members of the Union ments that the members of the sextet were ordered by gathered at its meeting hall to vote on contract ratifica- Pinero not to picket, I am not satisfied that the General tion. The contract was rejected. A strike vote was then Counsel has sustained his burden of proving affirmatively scheduled to be taken. Pinero protested and spoke out that Chiclana's version is more credible than Pinero's de- against the Union's calling a strike. In the absence of any nials. 25 In that regard, I note that a union delegate named evidence thereon, I assume that Chiclana took no active Rivera testified at the hearing but on a point entirely dis- part one way or the other at that meeting. The strike tinct from any argument with Pinero, as recounted by vote was taken and, as a result, an immediate strike was Chiclana. authorized. During the strike of the hotels' musicians, the Pijuan Chiclana testified that, after the strike vote was taken sextet (with some minor changes, e.g., the singer was re- and while he was in the driveway outside the building in placed) performed at a television studio located adjacent which the vote had been taken, Pinero approached him to the Caribe Hilton. Chiclana continued to perform and others who were in the Pijuan sextet. Chiclana testi- there with the sextet, notwithstanding that during those fied that Pinero said to them then that he did not want same months he was doing picketing duty at the hotels. them on the picket line and that they were to meet with Sometime before the strike ended Pinero resigned from him later that evening in the musicians' room in the membership in the Union. The sextet, including Chi- Caribe Hilton hotel. One of the other members of the clana, resumed performing at the Caribe Hilton when the Pijuan sextet at that time, Hector Negron, also testified strike ended. at the hearing. However, he made no reference to such a The General Counsel presented three witnesses, in- meeting in the driveway that day. Pinero testified that he eluding Chiclana, who testified that, at a meeting in the never had given any order to Chiclana to refrain from musicians' room at the Caribe Hilton shortly after the picketing; Pinero did not refer to any meeting of his strike ended in late April 1979, a union official sought to sextet in the building's driveway, as Chiclana had. Al- collect "taxes"; i.e., working dues to be paid to the though Pinero's denial is summary in nature and Chi- union. At that meeting, according to these witnesses, clana's account is detailed, I am not persuaded, especially Pinero said that he himself had discontinued paying as Negron failed to corroborate Chiclana's testimony on "taxes" to the Union and that he wanted the musicians in the point, that the General Counsel has shown affirma- his group also to stop paying "taxes." Pinero's testimony tively that Pinero issued an instruction to members of his was general in nature and in essence was a statement that sextet on the day of the strike vote to refrain from pick- he never engaged in any action, as alleged in the com- eting. Pinero's denial is thus credited. plaint, that he had interfered with the musicians' right to Chiclana further testified that, when he arrived at the pay "taxes" to the Union. Pinero acknowledged that Caribe Hilton later that night, there were several pickets there had been a meeting pertaining to the payment of outside. He said that one of them recognized him as a taxes but did not elaborate on it. I credit the accounts of member of the Pijuan sextet and pulled him onto the the General Counsel's witnesses as they were substantial- picket line. Chiclana related that, about 20 minutes later, ly consistent and detailed, in contrast to the summary Pinero arrived at the hotel and that, when he saw Chi- nature of Pinero's version. clana on the picket line, he told Chiclana that he did not want to see him on the picket line. Chiclana further 3. Chiclana's discharge stated that after about 2 hours he noticed that he and a D , the P s ( adfe few other musicians were the only ones from the Caribe. Durin t h e s t nik e, th e Pijua n s ex tet (w it h a d iffe re ~n t Hilton who were on the picket line then and that he de- singer) began performing as part of an early evening tele- Hiltn wo wre o th piket inethe andtha hede- vision show. It continued with that show after the strike cided to go into the hotel. He testified that he left the e n wh e nitrs me dp layithat thel arite sthe picket line and that, as he entered the musicians' room, C e nd e d w h e n ho r es um ed pl.^ at t h e C l u b C a n b e tn th e he heard Pinero arguing with a union delegate, Chico O J 27, 197 , C a a t .. Rivera, telling Rivera that he, Pinero, did not have to s on J un e 27 p 1979, Chiclana arrived at the television order his musicians to go outside; i.e., join the strike. P st u d n sexet pWhil t o t h e st ar t o f t h e show featuring the Chiclana said that the leader of another group perform- Pwh som e xt etf. While he was chatting a the parking lot ing at the Caribe Hilton, namely, Mario Ortiz, intervened wl t h s om e fbyends, Pero drove in and a few minutes and suggested that everyone should go outside to discuss la t er w al k ed, C Chhclana and told him abruptly to go the matter on the picket line. Chiclana said that most of the musicians went outside to the picket line.---- the musicia ns w entoutsie »itol tt e he pi cket lne. » For the same reason, I am unable to credit Chiclana's further testi- Pinero testified that he had told the union delegate mony that, on the same day of the strike, Pinero saw him on the picket that evening that he was in no hurry to get on the picket line at the Caribe Hilton and told him to leave. Chiclana testified that, as line but that later everyone did go out. Pinero said that a result, he moved to a picket line outside another hotel. PUERTO RICO HOTEL ASSOCIATION 449 Union for many years as had Pinero. For that matter, he too "went out in the picket line" where he observed Pinero had been much more active in union affairs than that one placard referred to him as "rat." Pinero denied Chiclana had been. Pinero had, for a 2-year period, held ever expressly instructing members of his sextet to re- the position as vice president of the Union and had also frain from picketing. In view of the confusion respecting been a member of an advisory council to the Union's the precise sequence of events, the excitement caused by president. the first strike among musicians in the hotel industry in Puerto Rico and the fact that no witnesses were offered 2. Alleged independent violations of Section 8(a)1) by the General Counsel to corroborate Chiclana's state- In February 1979, about 100 members of the Union ments that the members of the sextet were ordered by gathered at its meeting hall to vote on contract ratifica- Pinero not to picket, I am not satisfied that the General tion. The contract was rejected. A strike vote was then Counsel has sustained his burden of proving affirmatively scheduled to be taken. Pinero protested and spoke out that Chiclana's version is more credible than Pinero's de- against the Union's calling a strike. In the absence of any nials. 25 In that regard, I note that a union delegate named evidence thereon, I assume that Chiclana took no active Rivera testified at the hearing but on a point entirely dis- part one way or the other at that meeting. The strike tinct from any argument with Pinero, as recounted by vote was taken and, as a result, an immediate strike was Chiclana. authorized. During the strike of the hotels' musicians, the Pijuan Chiclana testified that, after the strike vote was taken sextet (with some minor changes, e.g., the singer was re- and while he was in the driveway outside the building in placed) performed at a television studio located adjacent which the vote had been taken, Pinero approached him to the Caribe Hilton. Chiclana continued to perform and others who were in the Pijuan sextet. Chiclana testi- there with the sextet, notwithstanding that during those fied that Pinero said to them then that he did not want same months he was doing picketing duty at the hotels. them on the picket line and that they were to meet with Sometime before the strike ended Pinero resigned from him later that evening in the musicians' room in the membership in the Union. The sextet, including Chi- Caribe Hilton hotel. One of the other members of the clana, resumed performing at the Caribe Hilton when the Pijuan sextet at that time, Hector Negron, also testified strike ended. at the hearing. However, he made no reference to such a The General Counsel presented three witnesses, in- meeting in the driveway that day. Pinero testified that he eluding Chiclana, who testified that, at a meeting in the never had given any order to Chiclana to refrain from musicians' room at the Caribe Hilton shortly after the picketing; Pinero did not refer to any meeting of his strike ended in late April 1979, a union official sought to sextet in the building's driveway, as Chiclana had. Al- collect "taxes"; i.e., working dues to be paid to the though Pinero's denial is summary in nature and Chi- union. At that meeting, according to these witnesses, clana's account is detailed, I am not persuaded, especially Pinero said that he himself had discontinued paying as Negron failed to corroborate Chiclana's testimony on "taxes" to the Union and that he wanted the musicians in the point, that the General Counsel has shown affirma- his group also to stop paying "taxes." Pinero's testimony tively that Pinero issued an instruction to members of his was general in nature and in essence was a statement that sextet on the day of the strike vote to refrain from pick- he never engaged in any action, as alleged in the com- eting. Pinero's denial is thus credited. plaint, that he had interfered with the musicians' right to Chiclana further testified that, when he arrived at the pay "taxes" to the Union. Pinero acknowledged that Caribe Hilton later that night, there were several pickets there had been a meeting pertaining to the payment of outside. He said that one of them recognized him as a taxes but did not elaborate on it. I credit the accounts of member of the Pijuan sextet and pulled him onto the the General Counsel's witnesses as they were substantial- picket line. Chiclana related that, about 20 minutes later, ly consistent and detailed, in contrast to the summary Pinero arrived at the hotel and that, when he saw Chi- nature of Pinero's version. clana on the picket line, he told Chiclana that he did not want to see him on the picket line. Chiclana further 3. Chiclana's discharge stated that after about 2 hours he noticed that he and a D , the P s ( adfe few other musicians were the only ones from the Caribe. Durin t h e s t nik e, th e Pijua s ex tet (w it h a d iffe re ~n t Hilton who were on the picket line then and that he de- singer) began performing as part of an early evening tele- Hiltn wo wre o th piket inethe andtha hede- vision show. It continued with that show after the strike cided to go into the hotel. He testified that he left the e n wh e nitrs me dp layithat thel arite sthe picket line and that, as he entered the musicians' room, C e nd e d w h e n ho r es um ed pl.^ at t h e C l u b C a n b e tn th e he heard Pinero arguing with a union delegate, Chico O J 27, 197 , C a a t .. Rivera, telling Rivera that he, Pinero, did not have to s on J un e 27 p 1979, Chiclana arrived at the television order his musicians to go outside; i.e., join the strike. P st u d n sexet pWhil t o t h e st ar t o f t h e show featuring the Chiclana said that the leader of another group perform- Pwh som e xt etf. While he was chatting in the parking lot ing at the Caribe Hilton, namely, Mario Ortiz, intervened wl t h s om e fbyends, Pero drove in and a few minutes and suggested that everyone should go outside to discuss la t er w al k ed, C Chhclana and told him abruptly to go the matter on the picket line. Chiclana said that most of the musicians went outside to the picket line.---- the musicia ns w entoutsie »itol tt e he pi cket lne. » For the same reason, I am unable to credit Chiclana's further testi- Pinero testified that he had told the union delegate mony that, on the same day of the strike, Pinero saw him on the picket that evening that he was in no hurry to get on the picket line at the Caribe Hilton and told him to leave. Chiclana testified that, as line but that later everyone did go out. Pinero said that a result, he moved to a picket line outside another hotel. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mood, such as he was that day, his musicians "can't even not exist any regulation at union level (or elsewhere) that breathe" for fear of being made the object of his wrath. forces" a leader to keep a person who is unable to In any event, it is undisputed that, soon after the sextet comply "with the most elementary rules of ethics, disci- settled down to rehearse prior to the start of the show, a pline etc." The letter ended by Pinero's advising Chi- shouting match took place between Pinero and Chiclana. clana that he has by his demeanor and language "ruined It is not entirely clear to me but I do not think the Gen- all chances of staying with the group." eral Counsel is asserting that Respondent Caribe Hilton Chiclana further testified that, upon the completion of prearranged such a confrontation in order to have an the performance at the Club Caribe on July 11, Pinero excuse to discharge Chiclana. If somehow there is such a told him that he was a good musician and that the other contention, I reject it as the event had the hallmark of an musicians wanted Pinero to give him another chance but unanticipated confrontation between an unusually tense that it was, in effect, necessary for Pinero to go through leader and a sideman, somewhat more relaxed in nature with his discharge of Chiclana because this was the "best until, as unquestionably happened, Pinero ordered him to example" to show that the Union's strike had been a put on the appropriate attire. At that point, the only "failure" and that the contract the Union had reached question was which one became the more excitable. The with the Association was also a "failure." parties spent considerable time attempting to show which Pinero testified that on Chiclana's last day of employ- one of the participants was principally at fault. In my ment he told Chiclana that he was sorry about it, that view it makes no difference as the argument was purely this was a hard lesson for him (Chiclana), and that per- personal in nature and had nothing to do with Chiclana's haps some day Chiclana could return to the group when membership in the Union. For that matter, it appears that his behavior improved. Pinero said that Chiclana re- Chiclana was at that time delinquent in his dues pay- sponded by saying he disagreed with Pinero and by as- ments to the Union and had not, at that point, been in- suring Pinero that he would be back to work the next volved in any union activities, other than his having day. (It appears that for several nights thereafter Chi- picketed months previously along with many other musi- clana did come to the Club Caribe lounge to sit near the cians, including it seems other members of the Pijuan sextet but he has not played with it since.) sextet. In any event, Pinero and Chiclana calmed down In his pre-trial affidavit, Pinero related that he had in time for the start of the TV show. At its conclusion, Pinero walked from the studio to the Caribe Hilton hotel ad ate e antagonism." At the hearing, he which was nearby and where he composed a letter ad at ts was tre giving Chiclana 2 weeks' termination notice "in compli- stated that ths was true ance with [Chiclana's] request." He gave this letter to The General Counselhas failed to persuade me that Chiclana later on June 27. Chiclana's account of his conversation with Pinero on Chiclana took the letter to the Union's office the next the last night he worked with the Pijuan sextet was more day, paid his dues delinquencies, and obtained the assist- credible than Pinero's account. It seems unlikely to me ance of a union official in drafting a response. On that that Pinero would first have stated in writing, as he did, same day, June 28, Chiclana gave Pinero a letter signed that Chiclana had by his behavior toward him (Pinero) by him, Chiclana, which stated that Pinero's letter of ruined forever his chances of continuing with the sextet June 27 was "completely erroneous." and then say, in effect, to Chiclana that he would have Pinero read the letter. Chiclana testified that Pinero kept him as part of the group but for the fact that Chi- then told him that the letter was not prepared by Chi- clana had gone to the Union. Pinero's version is consist- clana but was done by the Union and that he (Pinero) ent with the preceding events. The impact of Pinero's assumed that Chiclana had paid his taxes to the Union. statement that Chiclana's having gone to the Union had Pinero testified that he simply told Chiclana that the created "more antagonism" is discussed below in the fol- Union's secretary had written the letter for him and Chi- lowing subsection. clana acknowledged that this was true. It is undisputed that Chiclana was the first musician On July 5, Pinero advised Chiclana that he was adher- that Pinero has fired and that, since July 11, 1974, Chi- ing to his decision to terminate Chiclana upon the com- clana has not performed at the Caribe Hilton hotel. pletion of the 2 weeks' notification period; i.e., July 11. The General Counsel also proffered evidence respect- Chiclana testified that Pinero then told him in a loud ing the status of Pinero as a supervisor for the Caribe voice to go look for another job and that he, Chiclana, Hilton Hotel. In good part, this testimony has been set told Pinero not to raise his voice. Thereupon, according out above in section III, under the subsection for the to Chiclana, Pinero put his finger on Chiclana's chest Caribe Hilton. In addition, the following data was sub- and ordered him to be quiet. Pinero's account of that in- mitted. In 1978, the hotel's managing director had a cident is that he saw Chiclana apparently "bragging" to meeting of all the hotel's musicians and informed them other musicians and that he then spoke to Chiclana pri- that Pinero had been promoted to the position of musical vately to urge him to let things quiet down and "to leave director by the hotel's general manager and that refresh- the door open." Pinero testified that Chiclana neverthe- ments were then served. Pinero testified that this was an less called him vile names and asked him to step outside, honorary title. He received records from the leader of apparently to settle the matter by fighting. On July 6, the 10-piece orchestra at that hotel pertaining to hours Pinero handed Chiclana a letter which related that he, worked by the musicians in that group and turned those Pinero, was adhering to his determination to discharge notes in to the hotel's controller for payroll processing. Chiclana as of July 11. The letter noted that "there does Pinero, according to one musician in his group, instruct- shouting math took plac between Piero and Chilana. clanathat he hasby his demenor and-lanuage-"ruine 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mood, such as he was that day, his musicians "can't even not exist any regulation at union level (or elsewhere) that breathe" for fear of being made the object of his wrath,. forces" a leader to keep a person who is unable to In any event, it is undisputed that, soon after the sextet comply "with the most elementary rules of ethics, disci- settled down to rehearse prior to the start of the show, a pline etc." The letter ended by Pinero's advising Chi- shouting match took place between Pinero and Chiclana. clana that he has by his demeanor and language "ruined It is not entirely clear to me but I do not think the Gen- all chances of staying with the group." eral Counsel is asserting that Respondent Caribe Hilton Chiclana further testified that, upon the completion of prearranged such a confrontation in order to have an the performance at the Club Caribe on July 11, Pinero excuse to discharge Chiclana. If somehow there is such a told him that he was a good musician and that the other contention, I reject it as the event had the hallmark of an musicians wanted Pinero to give him another chance but unanticipated confrontation between an unusually tense that it was, in effect, necessary for Pinero to go through leader and a sideman, somewhat more relaxed in nature with his discharge of Chiclana because this was the "best until, as unquestionably happened, Pinero ordered him to example" to show that the Union's strike had been a put on the appropriate attire. At that point, the only "failure" and that the contract the Union had reached question was which one became the more excitable. The with the Association was also a "failure." parties spent considerable time attempting to show which Pinero testified that on Chiclana's last day of employ- one of the participants was principally at fault. In my ment he told Chiclana that he was sorry about it, that view it makes no difference as the argument was purely this was a hard lesson for him (Chiclana), and that per- personal in nature and had nothing to do with Chiclana's haps some day Chiclana could return to the group when membership in the Union. For that matter, it appears that his behavior improved. Pinero said that Chiclana re- Chiclana was at that time delinquent in his dues pay- sponded by saying he disagreed with Pinero and by as- ments to the Union and had not, at that point, been in- suring Pinero that he would be back to work the next volved in any union activities, other than his having day. (It appears that for several nights thereafter Chi- picketed months previously along with many other musi- clana did come to the Club Caribe lounge to sit near the cians, including it seems other members of the Pijuan sextet but he has not played with it since.) sextet. In any event, Pinero and Chiclana calmed down In his pre-trial affidavit, Pinero related that he had in time for the start of the TV show. At its conclusion, s t t f ta C h g t U Pinero walked from the studio to the Caribe Hilton hotel h antagonism." At the hearing, he which was nearby and where he composed a letter stated that this was true. giving Chiclana 2 weeks' termination notice "in compli- T G e C ha f to pu me ta ance with [Chiclana's] request." He gave this letter to Jhe General Counsel has failed to persuade me that Chiclana later on June 27."Chiclana's account of his conversation with Pinero on Chiclana took the letter to the Union's office the next the last night he worked with the Pijuan sextet was more day, paid his dues delinquencies, and obtained the assist- credible than Pinero's account. It seems unlikely to me ance of a union official in drafting a response. On that that Pinero would first have stated in writing, as he did, same day, June 28, Chiclana gave Pinero a letter signed that Chiclana had by his behavior toward him (Pinero) by him, Chiclana, which stated that Pinero's letter of ruined forever his chances of continuing with the sextet June 27 was "completely erroneous." an d then say, in effect, to Chiclana that he would have Pinero read the letter. Chiclana testified that Pinero kept him as part of the group but for the fact that Chi- then told him that the letter was not prepared by Chi- clana had gone to the Union. Pinero's version is consist- clana but was done by the Union and that he (Pinero) ent with the preceding events. The impact of Pinero's assumed that Chiclana had paid his taxes to the Union. statement that Chiclana's having gone to the Union had Pinero testified that he simply told Chiclana that the created "more antagonism" is discussed below in the fol- Union's secretary had written the letter for him and Chi- lowing subsection. clana acknowledged that this was true. It is undisputed that Chiclana was the first musician On July 5, Pinero advised Chiclana that he was adher- that Pinero has fired and that, since July 11, 1974, Chi- ing to his decision to terminate Chiclana upon the com- clana has not performed at the Caribe Hilton hotel. pletion of the 2 weeks' notification period; i.e., July 11. The General Counsel also proffered evidence respect- Chiclana testified that Pinero then told him in a loud ing the status of Pinero as a supervisor for the Caribe voice to go look for another job and that he, Chiclana, Hilton Hotel. In good part, this testimony has been set told Pinero not to raise his voice. Thereupon, according out above in section III, under the subsection for the to Chiclana, Pinero put his finger on Chiclana's chest Caribe Hilton. In addition, the following data was sub- and ordered him to be quiet. Pinero's account of that in- mitted. In 1978, the hotel's managing director had a cident is that he saw Chiclana apparently "bragging" to meeting of all the hotel's musicians and informed them other musicians and that he then spoke to Chiclana pri- that Pinero had been promoted to the position of musical vately to urge him to let things quiet down and "to leave director by the hotel's general manager and that refresh- the door open." Pinero testified that Chiclana neverthe- ments were then served. Pinero testified that this was an less called him vile names and asked him to step outside, honorary title. He received records from the leader of apparently to settle the matter by fighting. On July 6, the 10-piece orchestra at that hotel pertaining to hours Pinero handed Chiclana a letter which related that he, worked by the musicians in that group and turned those Pinero, was adhering to his determination to discharge notes in to the hotel's controller for payroll processing. Chiclana as of July 11. The letter noted that "there does Pinero, according to one musician in his group, instruct- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mood, such as he was that day, his musicians "can't even not exist any regulation at union level (or elsewhere) that breathe" for fear of being made the object of his wrath,. forces" a leader to keep a person who is unable to In any event, it is undisputed that, soon after the sextet comply "with the most elementary rules of ethics, disci- settled down to rehearse prior to the start of the show, a pline etc." The letter ended by Pinero's advising Chi- shouting match took place between Pinero and Chiclana. clana that he has by his demeanor and language "ruined It is not entirely clear to me but I do not think the Gen- all chances of staying with the group." eral Counsel is asserting that Respondent Caribe Hilton Chiclana further testified that, upon the completion of prearranged such a confrontation in order to have an the performance at the Club Caribe on July 11, Pinero excuse to discharge Chiclana. If somehow there is such a told him that he was a good musician and that the other contention, I reject it as the event had the hallmark of an musicians wanted Pinero to give him another chance but unanticipated confrontation between an unusually tense that it was, in effect, necessary for Pinero to go through leader and a sideman, somewhat more relaxed in nature with his discharge of Chiclana because this was the "best until, as unquestionably happened, Pinero ordered him to example" to show that the Union's strike had been a put on the appropriate attire. At that point, the only "failure" and that the contract the Union had reached question was which one became the more excitable. The with the Association was also a "failure." parties spent considerable time attempting to show which Pinero testified that on Chiclana's last day of employ- one of the participants was principally at fault. In my ment he told Chiclana that he was sorry about it, that view it makes no difference as the argument was purely this was a hard lesson for him (Chiclana), and that per- personal in nature and had nothing to do with Chiclana's haps some day Chiclana could return to the group when membership in the Union. For that matter, it appears that his behavior improved. Pinero said that Chiclana re- Chiclana was at that time delinquent in his dues pay- sponded by saying he disagreed with Pinero and by as- ments to the Union and had not, at that point, been in- suring Pinero that he would be back to work the next volved in any union activities, other than his having day. (It appears that for several nights thereafter Chi- picketed months previously along with many other musi- clana did come to the Club Caribe lounge to sit near the cians, including it seems other members of the Pijuan sextet but he has not played with it since.) sextet. In any event, Pinero and Chiclana calmed down In his pre-trial affidavit, Pinero related that he had in time for the start of the TV show. At its conclusion, s t t f ta C h g t U Pinero walked from the studio to the Caribe Hilton hotel h antagonism." At the hearing, he which was nearby and where he composed a letter stated that this was true. giving Chiclana 2 weeks' termination notice "in compli- T G e C ha f to pu me ta ance with [Chiclana's] request." He gave this letter to Jhe General Counsel has failed to persuade me that Chiclana later on June 27. Chiclanals account of his conversation with Pinero on Chiclana took the letter to the Union's office the next the last night he worked with the Pijuan sextet was more day, paid his dues delinquencies, and obtained the assist- credible than Pinero's account. It seems unlikely to me ance of a union official in drafting a response. On that that Pinero would first have stated in writing, as he did, same day, June 28, Chiclana gave Pinero a letter signed that Chiclana had by his behavior toward him (Pinero) by him, Chiclana, which stated that Pinero's letter of ruined forever his chances of continuing with the sextet June 27 was "completely erroneous." an d then say, in effect, to Chiclana that he would have Pinero read the letter. Chiclana testified that Pinero kept him as part of the group but for the fact that Chi- then told him that the letter was not prepared by Chi- clana had gone to the Union. Pinero's version is consist- clana but was done by the Union and that he (Pinero) ent with the preceding events. The impact of Pinero's assumed that Chiclana had paid his taxes to the Union. statement that Chiclana's having gone to the Union had Pinero testified that he simply told Chiclana that the created "more antagonism" is discussed below in the fol- Union's secretary had written the letter for him and Chi- lowing subsection. clana acknowledged that this was true. It is undisputed that Chiclana was the first musician On July 5, Pinero advised Chiclana that he was adher- that Pinero has fired and that, since July 11, 1974, Chi- ing to his decision to terminate Chiclana upon the com- clana has not performed at the Caribe Hilton hotel. pletion of the 2 weeks' notification period; i.e., July 11. The General Counsel also proffered evidence respect- Chiclana testified that Pinero then told him in a loud ing the status of Pinero as a supervisor for the Caribe voice to go look for another job and that he, Chiclana, Hilton Hotel. In good part, this testimony has been set told Pinero not to raise his voice. Thereupon, according out above in section III, under the subsection for the to Chiclana, Pinero put his finger on Chiclana's chest Caribe Hilton. In addition, the following data was sub- and ordered him to be quiet. Pinero's account of that in- mitted. In 1978, the hotel's managing director had a cident is that he saw Chiclana apparently "bragging" to meeting of all the hotel's musicians and informed them other musicians and that he then spoke to Chiclana pri- that Pinero had been promoted to the position of musical vately to urge him to let things quiet down and "to leave director by the hotel's general manager and that refresh- the door open." Pinero testified that Chiclana neverthe- ments were then served. Pinero testified that this was an less called him vile names and asked him to step outside, honorary title. He received records from the leader of apparently to settle the matter by fighting. On July 6, the 10-piece orchestra at that hotel pertaining to hours Pinero handed Chiclana a letter which related that he, worked by the musicians in that group and turned those Pinero, was adhering to his determination to discharge notes in to the hotel's controller for payroll processing. Chiclana as of July 11. The letter noted that "there does Pinero, according to one musician in his group, instruct- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mood, such as he was that day, his musicians "can't even not exist any regulation at union level (or elsewhere) that breathe" for fear of being made the object of his wrath,. forces" a leader to keep a person who is unable to In any event, it is undisputed that, soon after the sextet comply "with the most elementary rules of ethics, disci- settled down to rehearse prior to the start of the show, a pline etc." The letter ended by Pinero's advising Chi- shouting match took place between Pinero and Chiclana. clana that he has by his demeanor and language "ruined It is not entirely clear to me but I do not think the Gen- all chances of staying with the group." eral Counsel is asserting that Respondent Caribe Hilton Chiclana further testified that, upon the completion of prearranged such a confrontation in order to have an the performance at the Club Caribe on July 11, Pinero excuse to discharge Chiclana. If somehow there is such a told him that he was a good musician and that the other contention, I reject it as the event had the hallmark of an musicians wanted Pinero to give him another chance but unanticipated confrontation between an unusually tense that it was, in effect, necessary for Pinero to go through leader and a sideman, somewhat more relaxed in nature with his discharge of Chiclana because this was the "best until, as unquestionably happened, Pinero ordered him to example" to show that the Union's strike had been a put on the appropriate attire. At that point, the only "failure" and that the contract the Union had reached question was which one became the more excitable. The with the Association was also a "failure." parties spent considerable time attempting to show which Pinero testified that on Chiclana's last day of employ- one of the participants was principally at fault. In my ment he told Chiclana that he was sorry about it, that view it makes no difference as the argument was purely this was a hard lesson for him (Chiclana), and that per- personal in nature and had nothing to do with Chiclana's haps some day Chiclana could return to the group when membership in the Union. For that matter, it appears that his behavior improved. Pinero said that Chiclana re- Chiclana was at that time delinquent in his dues pay- sponded by saying he disagreed with Pinero and by as- ments to the Union and had not, at that point, been in- suring Pinero that he would be back to work the next volved in any union activities, other than his having day. (It appears that for several nights thereafter Chi- picketed months previously along with many other musi- clana did come to the Club Caribe lounge to sit near the cians, including it seems other members of the Pijuan sextet but he has not played with it since.) sextet. In any event, Pinero and Chiclana calmed down In his pre-trial affidavit, Pinero related that he had in time for the start of the TV show. At its conclusion, s t t f ta C h g t U Pinero walked from the studio to the Caribe Hilton hotel h antagonism." At the hearing, he which was nearby and where he composed a letter stated that this was true. giving Chiclana 2 weeks' termination notice "in compli- T G e C ha f to pu me ta ance with [Chiclana's] request." He gave this letter to Jhe General Counsel has failed to persuade me that Chiclana later on June 27. Chiclanals account of his conversation with Pinero on Chiclana took the letter to the Union's office the next the last night he worked with the Pijuan sextet was more day, paid his dues delinquencies, and obtained the assist- credible than Pinero's account. It seems unlikely to me ance of a union official in drafting a response. On that that Pinero would first have stated in writing, as he did, same day, June 28, Chiclana gave Pinero a letter signed that Chiclana had by his behavior toward him (Pinero) by him, Chiclana, which stated that Pinero's letter of ruined forever his chances of continuing with the sextet June 27 was "completely erroneous." an d then say, in effect, to Chiclana that he would have Pinero read the letter. Chiclana testified that Pinero kept him as part of the group but for the fact that Chi- then told him that the letter was not prepared by Chi- clana had gone to the Union. Pinero's version is consist- clana but was done by the Union and that he (Pinero) ent with the preceding events. The impact of Pinero's assumed that Chiclana had paid his taxes to the Union. statement that Chiclana's having gone to the Union had Pinero testified that he simply told Chiclana that the created "more antagonism" is discussed below in the fol- Union's secretary had written the letter for him and Chi- lowing subsection. clana acknowledged that this was true. It is undisputed that Chiclana was the first musician On July 5, Pinero advised Chiclana that he was adher- that Pinero has fired and that, since July 11, 1974, Chi- ing to his decision to terminate Chiclana upon the com- clana has not performed at the Caribe Hilton hotel. pletion of the 2 weeks' notification period; i.e., July 11. The General Counsel also proffered evidence respect- Chiclana testified that Pinero then told him in a loud ing the status of Pinero as a supervisor for the Caribe voice to go look for another job and that he, Chiclana, Hilton Hotel. In good part, this testimony has been set told Pinero not to raise his voice. Thereupon, according out above in section III, under the subsection for the to Chiclana, Pinero put his finger on Chiclana's chest Caribe Hilton. In addition, the following data was sub- and ordered him to be quiet. Pinero's account of that in- mitted. In 1978, the hotel's managing director had a cident is that he saw Chiclana apparently "bragging" to meeting of all the hotel's musicians and informed them other musicians and that he then spoke to Chiclana pri- that Pinero had been promoted to the position of musical vately to urge him to let things quiet down and "to leave director by the hotel's general manager and that refresh- the door open." Pinero testified that Chiclana neverthe- ments were then served. Pinero testified that this was an less called him vile names and asked him to step outside, honorary title. He received records from the leader of apparently to settle the matter by fighting. On July 6, the 10-piece orchestra at that hotel pertaining to hours Pinero handed Chiclana a letter which related that he, worked by the musicians in that group and turned those Pinero, was adhering to his determination to discharge notes in to the hotel's controller for payroll processing. Chiclana as of July 11. The letter noted that "there does Pinero, according to one musician in his group, instruct- PUERTO RICO HOTEL ASSOCIATION 451 ed him to stop going to the casino, as did the maitre d' clana's behavior. Pinero testified that Chiclana, in effect, of the room in which they played. On one occasion, Chi- "bragged" that Pinero could not discharge him. Chi- clana was given a device by Pinero which, when insert- clana's own conduct after his discharge suggests that ed in the mouthpiece of the saxophone, amplified the Pinero's testimony on that point was accurate. In these sound. According to Chiclana, Pinero directed him to circumstances, I infer that Pinero's comment that Chi- cease using it and told Chiclana that the hotel wanted its clana's having gone to the Union for aid in retaining his use discontinued because it created too loud a sound job had created "more antagonism" referred not to dis- which was not in keeping with the style of music de- criminatory motivation but simply to Pinero's apparent sired. Pinero testified that the discontinuance of the belief that Chiclana was willfully disobeying him and device was his own decision. Pinero is given free parking that Chiclana was flaunting his contempt for Pinero in space by the hotel; the musicians pay the same fee for part because he, Chiclana, was assured of the Union's parking as do other individuals; e.g., maintenance work- support. To take the phrase "more antagonism" out of ers, whom all parties concede are statutory employees. context as clear evidence of unlawful discrimination The Respondent Caribe Hilton offered testimony that The Respondent Caribe Hilton offered testimony that would require me to ignore all the relevant evidence to Pinero was an independent contractor. Thus, Pinero tes- Pinero was an independent contractor. Thus, Pinero tes the contrary. I find that the evidence is insufficient to es- tified that he arranges his own music and does not use t sh c o n t that hiclnas teminatin o em ment t e s stock arrangements which can be purchased at a music t ab l s h t ha t Chiclanas termination of employment was store. He rehearses his group each Saturday and decides discminatoly motivated. what music will be played. He takes his group on cruises 2. The alleged independent violations of Section and on television assignments and generally takes his va- 8(a 1 cation from the hotel at the same time he lets his group A go on vacation. In that regard, only he, Pinero, seeks ap- The complaint alleges that on June 28, 1979, Pinero as proval from the food and beverage manager as to when a supervisory employee of Respondent Caribe Hilton had to take his vacation but the musicians in his group deal created the impression that the Respondent was engaging only with him, Pinero, and not with the hotel's food and in surveillance of the union activities of its musician em- beverage manager. When the sextet vacations, Pinero ar- ployees. In support thereof, the General Counsel submit- ranges for a group to substitute for them at the hotel and ted testimony that, when Chiclana handed him the letter pays that group himself. Pinero testified that he decides dated June 28, that a union official helped him prepare, the amounts to be paid. The record does not disclose Pinero told him that the letter was prepared by a union how long or how frequent are the vacation periods but, official he named. If that were the only relevant evi- presumably, they are taken in accordance with the vaca- dence, there might be merit to the allegation. There is, tion provisions of the contract between the Respondent however, evidence in the record that Pinero had been a Association and the Union. vice president of the Union for 2 years and had been a B. Analysis as to Alleged Discrimination andmember of its advisory council. Presumably, Chiclana as B. Analysis as to Alleged Discrimination and Interference a long-time union member knew this. In that context, I more easily conclude that Pinero's statement did not 1. The alleged discriminatory discharge of Chiclana create the impression of surveillance of union activities but simply revealed that Pinero was familiar with the re- The credited testimony establishes that on June 27, spective styles in which Chiclana and the named union 1979, Chiclana and Pinero got into a heated argument official communicated and that Pinero wanted Chiclana which was unrelated to the Union and which resulted in which was unrelated to the Union and which resulted in to know that he could not claim credit for it. I find no Pinero's giving Chiclana notice that his employment merit in the allegation that the Respondent Caribe Hilton would be terminated 2 weeks hence. In that interval, had thereby created the impression that it was engaging they had more arguments of a personal nature. Pinero in surveillance of union activities. made it clear that he viewed Chiclana's behavior as out-o t ma rageous and discharged Chiclana at the end of the 2- rageous and discharged Chiclana at the end of the 2- The General Counsel also asserts that Pminero's remark week period. The foregoing discloses no evidentiary to Chiclana on July 11, as discussed in detail above, that basis to support a finding that Chiclana was discharged the fact that Chiclana had gone to the Union for assist- for his union activities. The General Counsel contends ance created "more antagonism" independently violated that, in any event, Pinero's concession that Chiclana's Section 8(aX). In context with the surrounding events, having gone to the Union created "more antagonism" es- as considered above, the statement was not violative of tablishes that Chiclana's discharge was based on unlawful the Act n any way. discriminatory motivation. I disagree. That statement There is a separate allegation in the complaint that must be taken in context. In that regard, the testimony of Pinero's orders to members of the Pijuan sextet at the the General Counsel's own witnesses was that Pinero outset of the strike to refrain from picketing constituted a was a high-strung individual who could not brook the violation of Section 8(aXl). Based on the credibility reso- slightest challenge to his authority. The General Counsel lutions made, as set out above, I find that that allegation further adduced evidence that Chiclana stood up to Pin- is without merit. ero's attempts to intimidate him and that, in doing so, Lastly, the General Counsel contends that the state- Chiclana referred to Pinero in vulgar terms. Whether or ments by Pinero on two occasions to musician employees not he was justified in doing so is not my concern. There of the Caribe Hilton hotel that they were not to pay is no question but that Pinero was outraged by Chi- "taxes" to the Union were violative of Section 8(a)(). I PUERTO RICO HOTEL ASSOCIATION 451 ed him to stop going to the casino, as did the maitre d' clana's behavior. Pinero testified that Chiclana, in effect, of the room in which they played. On one occasion, Chi- "bragged" that Pinero could not discharge him. Chi- clana was given a device by Pinero which, when insert- clana's own conduct after his discharge suggests that ed in the mouthpiece of the saxophone, amplified the Pinero's testimony on that point was accurate. In these sound. According to Chiclana, Pinero directed him to circumstances, I infer that Pinero's comment that Chi- cease using it and told Chiclana that the hotel wanted its clana's having gone to the Union for aid in retaining his use discontinued because it created too loud a sound job had created "more antagonism" referred not to dis- which was not in keeping with the style of music de- criminatory motivation but simply to Pinero's apparent sired. Pinero testified that the discontinuance of the belief that Chiclana was willfully disobeying him and device was his own decision. Pinero is given free parking that Chiclana was flaunting his contempt for Pinero in space by the hotel; the musicians pay the same fee for part because he, Chiclana, was assured of the Union's parking as do other individuals; e.g., maintenance work- support. To take the phrase "more antagonism" out of ers, whom all parties concede are statutory employees. context as clear evidence of unlawful discrimination The Respondent Caribe Hilton offered testimony that would require me to ignore all the relevant evidence to Pinero was an independent contractor. Thus, Pinero tes- , ^,1 1 _ *r Pineo wa anindeendet cntrator.Thu, Piero es- the contrary. I find that the evidence is insufficient to es- tified that he arranges his own music and does not use t h t h a t t ermination of m po m e n t was stock arrangements which can be purchased at a musicd t a b l s h c t h a t Chiclana s termination of employment was store. He rehearses his group each Saturday and decides what music will be played. He takes his group on cruises 2. The alleged independent violations of Section and on television assignments and generally takes his va- 8(a 1) cation from the hotel at the same time he lets his group go on vacation. In that regard, only he, Pinero, seeks ap- The complaint alleges that on June 28, 1979, Pinero as proval from the food and beverage manager as to when a supervisory employee of Respondent Caribe Hilton had to take his vacation but the musicians in his group deal created the impression that the Respondent was engaging only with him, Pinero, and not with the hotel's food and in surveillance of the union activities of its musician em- beverage manager. When the sextet vacations, Pinero ar- ployees. In support thereof, the General Counsel submit- ranges for a group to substitute for them at the hotel and ted testimony that, when Chiclana handed him the letter pays that group himself. Pinero testified that he decides dated June 28, that a union official helped him prepare, the amounts to be paid. The record does not disclose Pinero told him that the letter was prepared by a union how long or how frequent are the vacation periods but, official he named. If that were the only relevant evi- presumably, they are taken in accordance with the vaca- dence, there might be merit to the allegation. There is, tion provisions of the contract between the Respondent however, evidence in the record that Pinero had been a Association and the Union. vice president of the Union for 2 years and had been a B. Analysis as to Alleged Discrimination and m e m b e r o f i ts a d v is o r y c o u n c i l. Presumably, Ch ic la n a a s Interference a long-time union member knew this. In that context, I more easily conclude that Pinero's statement did not 1. The alleged discriminatory discharge of Chiclana create the impression of surveillance of union activities but simply revealed that Pinero was familiar with the re- T h e c r e d it ed testimony establishes that on June 27, spective styles in which Chiclana and the named union 1979, Chiclana and Pinero got into a heated argument official communicated and that Pinero wanted Chiclana which was unrelated to the Union and which resulted in ^ ^ ^^ ^ ^^ ,dn whic wa unelaed t th Unon nd wichreslte in to know that he could not claim credit for it. I find no Pinero's giving Chiclana notice that his employment merit in the allegation that the Respondent Caribe Hilton would be terminated 2 weeks hence. In that interval, had thereby created the impression that it was engaging they had more arguments of a personal nature. Pinero in surveillance of union activities. made it clear that he viewed Chiclana's behavior as out- T G e C n a ae t - rmk rageous and discharged Chiclana at the end of the 2- t h icla n a o u l as d ssedti tat abo that week period. The foregoing discloses no evidentiary to C h l c la n a " ^y 11, as discussed in detail above, that basis to support a finding that Chiclana was discharged t h e f a c t t h a t Chi c l a n a h a d gone to the Union for assist- for his union activities. The General Counsel contends a n c e created "more a n ta gonism " independently violated that, in any event, Pinero's concession that Chiclana's Se c tio n 8(aXl). In context with the surrounding events, having gone to the Union created "more antagonism" es- a s considered above, the statement was not violative of tablishes that Chiclana's discharge was based on unlawful th e Act in any way. discriminatory motivation. I disagree. That statement There is a separate allegation in the complaint that must be taken in context. In that regard, the testimony of Pinero's orders to members of the Pijuan sextet at the the General Counsel's own witnesses was that Pinero outset of the strike to refrain from picketing constituted a was a high-strung individual who could not brook the violation of Section 8(a)l). Based on the credibility reso- slightest challenge to his authority. The General Counsel lutions made, as set out above, I find that that allegation further adduced evidence that Chiclana stood up to Pin- is without merit. ero's attempts to intimidate him and that, in doing so, Lastly, the General Counsel contends that the state- Chiclana referred to Pinero in vulgar terms. Whether or ments by Pinero on two occasions to musician employees not he was justified in doing so is not my concern. There of the Caribe Hilton hotel that they were not to pay is no question but that Pinero was outraged by Chi- "taxes" to the Union were violative of Section 8(a)(l). I PUERTO RICO HOTEL ASSOCIATION 451 ed him to stop going to the casino, as did the maitre d' clana's behavior. Pinero testified that Chiclana, in effect, of the room in which they played. On one occasion, Chi- "bragged" that Pinero could not discharge him. Chi- clana was given a device by Pinero which, when insert- clana's own conduct after his discharge suggests that ed in the mouthpiece of the saxophone, amplified the Pinero's testimony on that point was accurate. In these sound. According to Chiclana, Pinero directed him to circumstances, I infer that Pinero's comment that Chi- cease using it and told Chiclana that the hotel wanted its clana's having gone to the Union for aid in retaining his use discontinued because it created too loud a sound job had created "more antagonism" referred not to dis- which was not in keeping with the style of music de- criminatory motivation but simply to Pinero's apparent sired. Pinero testified that the discontinuance of the belief that Chiclana was willfully disobeying him and device was his own decision. Pinero is given free parking that Chiclana was flaunting his contempt for Pinero in space by the hotel; the musicians pay the same fee for part because he, Chiclana, was assured of the Union's parking as do other individuals; e.g., maintenance work- support. To take the phrase "more antagonism" out of ers, whom all parties concede are statutory employees. context as clear evidence of unlawful discrimination The Respondent Caribe Hilton offered testimony that would require me to ignore all the relevant evidence to Pinero was an independent contractor. Thus, Pinero tes- , ^,1 1 _ *r Pineo wa anindeendet cntrator.Thu, Piero es- the contrary. I find that the evidence is insufficient to es- tified that he arranges his own music and does not use tals t h a t t ermination of m po m e n t was stock arrangements which can be purchased at a musicd t a b l s h c t h a t Chiclana s termination of employment was store. He rehearses his group each Saturday and decides what music will be played. He takes his group on cruises 2. The alleged independent violations of Section and on television assignments and generally takes his va- 8(a 1) cation from the hotel at the same time he lets his group go on vacation. In that regard, only he, Pinero, seeks ap- The complaint alleges that on June 28, 1979, Pinero as proval from the food and beverage manager as to when a supervisory employee of Respondent Caribe Hilton had to take his vacation but the musicians in his group deal created the impression that the Respondent was engaging only with him, Pinero, and not with the hotel's food and in surveillance of the union activities of its musician em- beverage manager. When the sextet vacations, Pinero ar- ployees. In support thereof, the General Counsel submit- ranges for a group to substitute for them at the hotel and ted testimony that, when Chiclana handed him the letter pays that group himself. Pinero testified that he decides dated June 28, that a union official helped him prepare, the amounts to be paid. The record does not disclose Pinero told him that the letter was prepared by a union how long or how frequent are the vacation periods but, official he named. If that were the only relevant evi- presumably, they are taken in accordance with the vaca- dence, there might be merit to the allegation. There is, tion provisions of the contract between the Respondent however, evidence in the record that Pinero had been a Association and the Union. vice president of the Union for 2 years and had been a B. Analysis as to Alleged Discrimination and m e m b e r o f i ts a d v is o r y c o u n c i l. Presumably, Ch ic la n a as Interference a long-time union member knew this. In that context, I more easily conclude that Pinero's statement did not 1. The alleged discriminatory discharge of Chiclana create the impression of surveillance of union activities but simply revealed that Pinero was familiar with the re- T h e c r e d it ed testimony establishes that on June 27, spective styles in which Chiclana and the named union 1979, Chiclana and Pinero got into a heated argument official communicated and that Pinero wanted Chiclana which was unrelated to the Union and which resulted in ^ ^ ^^ ^ ^^ ,dn whic wa unelaed t th Unon nd wichreslte in to know that he could not claim credit for it. I find no Pinero's giving Chiclana notice that his employment merit in the allegation that the Respondent Caribe Hilton would be terminated 2 weeks hence. In that interval, had thereby created the impression that it was engaging they had more arguments of a personal nature. Pinero in surveillance of union activities. made it clear that he viewed Chiclana's behavior as out- T G e C n a ae t - rmk rageous and discharged Chiclana at the end of the 2- t h icla n a o u l as d ssedti tat abo that week period. The foregoing discloses no evidentiary to C h l c la n a " ^y 11, as discussed in detail above, that basis to support a finding that Chiclana was discharged t h e f a c t t h a t Chiclana had gone to the Union for assist- for his union activities. The General Counsel contends a c e created "more a n ta gonism " independently violated that, in any event, Pinero's concession that Chiclana's Se c tio n 8(aXl). In context with the surrounding events, having gone to the Union created "more antagonism" es- as considered above, the statement was not violative of tablishes that Chiclana's discharge was based on unlawful th e A c t in any way. discriminatory motivation. I disagree. That statement There is a separate allegation in the complaint that must be taken in context. In that regard, the testimony of Pinero's orders to members of the Pijuan sextet at the the General Counsel's own witnesses was that Pinero outset of the strike to refrain from picketing constituted a was a high-strung individual who could not brook the violation of Section 8(a)l). Based on the credibility reso- slightest challenge to his authority. The General Counsel lutions made, as set out above, I find that that allegation further adduced evidence that Chiclana stood up to Pin- is without merit. ero's attempts to intimidate him and that, in doing so, Lastly, the General Counsel contends that the state- Chiclana referred to Pinero in vulgar terms. Whether or ments by Pinero on two occasions to musician employees not he was justified in doing so is not my concern. There of the Caribe Hilton hotel that they were not to pay is no question but that Pinero was outraged by Chi- "taxes" to the Union were violative of Section 8(a)(l). I PUERTO RICO HOTEL ASSOCIATION 451 ed him to stop going to the casino, as did the maitre d' clana's behavior. Pinero testified that Chiclana, in effect, of the room in which they played. On one occasion, Chi- "bragged" that Pinero could not discharge him. Chi- clana was given a device by Pinero which, when insert- clana's own conduct after his discharge suggests that ed in the mouthpiece of the saxophone, amplified the Pinero's testimony on that point was accurate. In these sound. According to Chiclana, Pinero directed him to circumstances, I infer that Pinero's comment that Chi- cease using it and told Chiclana that the hotel wanted its clana's having gone to the Union for aid in retaining his use discontinued because it created too loud a sound job had created "more antagonism" referred not to dis- which was not in keeping with the style of music de- criminatory motivation but simply to Pinero's apparent sired. Pinero testified that the discontinuance of the belief that Chiclana was willfully disobeying him and device was his own decision. Pinero is given free parking that Chiclana was flaunting his contempt for Pinero in space by the hotel; the musicians pay the same fee for part because he, Chiclana, was assured of the Union's parking as do other individuals; e.g., maintenance work- support. To take the phrase "more antagonism" out of ers, whom all parties concede are statutory employees. context as clear evidence of unlawful discrimination The Respondent Caribe Hilton offered testimony that would require me to ignore all the relevant evidence to Pinero was an independent contractor. Thus, Pinero tes- , ^,1 1 _ *r Pineo wa anindeendet cntrator.Thu, Piero es- the contrary. I find that the evidence is insufficient to es- tified that he arranges his own music and does not use t tha C t e nai of l oym e nt was stock arrangements which can be purchased at a musicd t ab l s h c t h at Chiclana s termination of employment was store. He rehearses his group each Saturday and decides what music will be played. He takes his group on cruises 2. The alleged independent violations of Section and on television assignments and generally takes his va- 8(a 1) cation from the hotel at the same time he lets his group go on vacation. In that regard, only he, Pinero, seeks ap- The complaint alleges that on June 28, 1979, Pinero as proval from the food and beverage manager as to when a supervisory employee of Respondent Caribe Hilton had to take his vacation but the musicians in his group deal created the impression that the Respondent was engaging only with him, Pinero, and not with the hotel's food and in surveillance of the union activities of its musician em- beverage manager. When the sextet vacations, Pinero ar- ployees. In support thereof, the General Counsel submit- ranges for a group to substitute for them at the hotel and ted testimony that, when Chiclana handed him the letter pays that group himself. Pinero testified that he decides dated June 28, that a union official helped him prepare, the amounts to be paid. The record does not disclose Pinero told him that the letter was prepared by a union how long or how frequent are the vacation periods but, official he named. If that were the only relevant evi- presumably, they are taken in accordance with the vaca- dence, there might be merit to the allegation. There is, tion provisions of the contract between the Respondent however, evidence in the record that Pinero had been a Association and the Union. vice president of the Union for 2 years and had been a B. Analysis as to Alleged Discrimination and m e m b e r o f i ts a d v is o r y c o u n c i l. Presumably, Ch ic la n a a s Interference a long-time union member knew this. In that context, I more easily conclude that Pinero's statement did not 1. The alleged discriminatory discharge of Chiclana create the impression of surveillance of union activities but simply revealed that Pinero was familiar with the re- T h e c r e d it ed testimony establishes that on June 27, spective styles in which Chiclana and the named union 1979, Chiclana and Pinero got into a heated argument official communicated and that Pinero wanted Chiclana which was unrelated to the Union and which resulted in ^ ^ ^^ ^ ^^ ,dn whic wa unelaed t th Unon nd wichreslte in to know that he could not claim credit for it. I find no Pinero's giving Chiclana notice that his employment merit in the allegation that the Respondent Caribe Hilton would be terminated 2 weeks hence. In that interval, had thereby created the impression that it was engaging they had more arguments of a personal nature. Pinero in surveillance of union activities. made it clear that he viewed Chiclana's behavior as out- T G e C n a ae t - rmk rageous and discharged Chiclana at the end of the 2- t h icla n a o u l as d ssedti tat abo that week period. The foregoing discloses no evidentiary to C h l c lan a " ^y 11, as discussed in detail above, that basis to support a finding that Chiclana was discharged t he f ac t t h a t Chiclana had gone to the Union for assist- for his union activities. The General Counsel contends a ce created "more antagonism" independently violated that, in any event, Pinero's concession that Chiclana's Se c tio n 8(aXl). In context with the surrounding events, having gone to the Union created "more antagonism" es- as considered above, the statement was not violative of tablishes that Chiclana's discharge was based on unlawful the A c t in any way. discriminatory motivation. I disagree. That statement There is a separate allegation in the complaint that must be taken in context. In that regard, the testimony of Pinero's orders to members of the Pijuan sextet at the the General Counsel's own witnesses was that Pinero outset of the strike to refrain from picketing constituted a was a high-strung individual who could not brook the violation of Section 8(a)l). Based on the credibility reso- slightest challenge to his authority. The General Counsel lutions made, as set out above, I find that that allegation further adduced evidence that Chiclana stood up to Pin- is without merit. ero's attempts to intimidate him and that, in doing so, Lastly, the General Counsel contends that the state- Chiclana referred to Pinero in vulgar terms. Whether or ments by Pinero on two occasions to musician employees not he was justified in doing so is not my concern. There of the Caribe Hilton hotel that they were not to pay is no question but that Pinero was outraged by Chi- "taxes" to the Union were violative of Section 8(a)l). I 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited the General Counsel's witnesses as to only the gaining, that this labor organization admit that the em- second occasion, in June 1979. ployees in the unit it represents are not employees of the I have also found above that the musicians in this case, Class AA hotels and in connection therewith by insisting including Pinero are employees of the Class AA hotels. I that the labor organization withdraw unfair labor prac- now further find that Pinero was a supervisor of the Re- tice charges it had filed which asserted that the unit em- spondent Caribe Hilton, as defined in Section 2(11) of ployees are employees of these hotels, the Respondent the Act. Specifically, the evidence demonstrates that Puerto Rico Hotel Association has engaged in and is en- Pinero held the title of musical director of the Caribe gaging in unfair labor practices within the meaning of Hilton hotel as given him by the hotel's manager at a Section 8(a)(5) of the Act. cocktail party held to announce the event, that in his 6. The Respondent Puerto Rico Hotel Association and duties at the hotel he received communications in writ- the following Respondents whom it represents for pur- ing from the hotel's food and beverage manager on poses of collective bargaining: Hilton International Com- "inter-office" memorandum which pertained to the su- pany d/b/a Caribe Hilton Hotel, Condado Holiday Inn, pervison of the musician emoloyees, that he collected San Juan Hotel Corporation d/b/a El San Juan Hotel and transmitted to the hotel's payroll section various re- and El Conquisdator Hotel, and The Puerto Rico Hotel cords needed to compute the paychecks of the respective Corporation d/b/a The Palace Hotel have, since on or musicians, that he distributed to individual musicians about June 18, 1979, refused and are refusing to bargain paychecks drawn by the hotel to the order of each musi- collectively with the above-named labor organization by cian, that he responsibly directed the musicians in his promoting the use of and using personal service con- group in the interest of the hotel's goal to offer food, tracts with leaders of musical groups of employees of beverages, dancing, atmosphere, and service to its clien- Class AA hotels in Puerto Rico in furtherance of its un- tel and that he possessed and exercised the authority to law disclaimer that the said musicians employees are hire and discharge musicians performing with the Pijuan lafl sl e tt te sa m s e s sextet at the Club Caribe in the hotel. It is apparent that employees of the Class AA hotels Pinero meets at least one of the statutory criteria set out 7. The Respondents Sanuan Hotel Corporation d/b/a in Section 2(11) and thus is a supervisor as so defined. El San Juan Hotel and El Conquistador Hotel, and the I thus conclude that the Respondent Caribe Hilton Puerto Rico Hotel Corporation d/b/a The Palace Hotel violated Section 8(a)(1) when Pinero told the musicians have refused and continue to refuse since on or about in June 1979 not to pay their "taxes" to the Union. I find November 27, 1978, to bargain collectively in that they no merit as to thc allegation that he had made substan- have stated then they no longer recognize the Union as tially the same comment in April 1979 as there is no the bargaining agent of their musician employees and credible evidence thereon. also sought to withdraw the authority they issued to the Respondent Puerto Rico Hotel Association to negotiate a CONCLUSIONS OF LAW renewal contract with the above-named organization vis- 1. Puerto Rico Hotel Association, Hilton International a-vis the unit of employees described above in paragraph !. Puerto Rico Hotel Association, Hilton International Company d/b/a Caribe Hilton Hotel, Hilton Internation- 3 despite the fact that, at that time, the renewal contract Company d/b/a Caribe Hilton Hotel, Hilton Internation- al Company d/b/a La Concha Hotel-Condado Beach negotiations were substantially underway and in that the al Company d/b/a La Concha Hotel-Condado Beach Hotel, Condado Holiday Inn, San Juan Hotel Corpora- said Respondents have failed and refused and are failing tion d/b/a El San Juan Hotel and El Conquistador and refusing to honor the collective-bargaining agree- Hotel, and the Puerto Rico Hotel Corporation d/b/a ment reached on about April 30, 1979, between the said The Palace Hotel, are employers engaged in commerce labor organization with the Respondent Puerto Rico within the meaning of Section 2(2), (6), and (7) of the Hotel Association notwithstanding that said Respondents Act. have reached agreement with the said labor organization 2. Federacion de Musicos de Puerto Rico, Local 468, as to the minimum number of musicians to be employed American Federation of Musicians, AFL-CIO, is a labor by them and the said Respondents by the foregoing con- organization within the meaning of Section 2(5) of the duct have engaged in and are engaging in unfair labor Act. practices within the meaning of Section 8(a)(5) of the 3. All musicians employed by Class AA hotels exclud- Act. ing travelers, independent contractors, all other employ- 8. The Respondent Puerto Rico Hotel Associaton did ees, leaders and all other supervisors as defined in the not, in violation of the Act, unilaterally change the Act, comprise a unit appropriate for the purposes of col- agreed-upon recognition clause of its current agreement lective bargaining within the meaning of Section 9(b) of with the above-named labor organization. the Act. 9. The Respondent Hilton International Company, 4. At all times material herein, the above-named labor d/b/a Caribe Hilton Hotel, did not, in violation of the organization has been and is now the exclusive repre- Act, (a) discharge its employee Pedro Chiclana because sentative of the employees employed in the unit de- of his activities on behalf of the above-named labor orga- scribed above in paragraph 3 for the purposes of collec- nization, (b) create the impression that it engaged in the tive bargaining within the meaning of Section 9(a) of the surveillance of activities of employees on behalf of that Act. labor organization, (c) impliedly warn employees against 5. By having refused, since on or about January 8, supporting that labor organization, (d) direct its musician 1979 to bargain collectively with the above-named labor employees not to strike or picket, (e) instruct its musi- organization in that it insisted, as a threshold issue in bar- cians in April 1979 not to pay working dues to the 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited the General Counsel's witnesses as to only the gaining, that this labor organization admit that the em- second occasion, in June 1979. ployees in the unit it represents are not employees of the I have also found above that the musicians in this case, Class AA hotels and in connection therewith by insisting including Pinero are employees of the Class AA hotels. I that the labor organization withdraw unfair labor prac- now further find that Pinero was a supervisor of the Re- tice charges it had filed which asserted that the unit em- spondent Caribe Hilton, as defined in Section 2(11) of ployees are employees of these hotels, the Respondent the Act. Specifically, the evidence demonstrates that Puerto Rico Hotel Association has engaged in and is en- Pinero held the title of musical director of the Caribe gaging in unfair labor practices within the meaning of Hilton hotel as given him by the hotel's manager at a Section 8(a)(5) of the Act. cocktail party held to announce the event, that in his 6. The Respondent Puerto Rico Hotel Association and duties at the hotel he received communications in writ- the following Respondents whom it represents for pur- ing from the hotel's food and beverage manager on poses of collective bargaining: Hilton International Com- "inter-office" memorandum which pertained to the su- pany d/b/a Caribe Hilton Hotel, Condado Holiday Inn, pervison of the musician emoloyees, that he collected San Juan Hotel Corporation d/b/a El San Juan Hotel and transmitted to the hotel's payroll section various re- and El Conquisdator Hotel, and The Puerto Rico Hotel cords needed to compute the paychecks of the respective Corporation d/b/a The Palace Hotel have, since on or musicians, that he distributed to individual musicians about June 18, 1979, refused and are refusing to bargain paychecks drawn by the hotel to the order of each musi- collectively with the above-named labor organization by cian, that he responsibly directed the musicians in his promoting the use of and using personal service con- group in the interest of the hotel's goal to offer food, tracts with leaders of musical groups of employees of beverages, dancing, atmosphere, and service to its clien- Class AA hotels in Puerto Rico in furtherance of its un- tel and that he possessed and exercised the authority to lawful disclaimer that the said musicians employees are hire and discharge musicians performing with the Pijuan e o the C A htl sextet at the Club Caribe in the hotel. It is apparent that e7plTheespondents an HotelC Pinero meets at least one of the statutory criteria set out 7 T h e Respondents San Juan Hotel Corporation d/b/a in Section 2(11) and thus is a supervisor as so defined. E l S an J u an Hotel and El Conquistador Hotel, and the I thus conclude that the Respondent Caribe Hilton Puerto Rico Hotel Corporation d/b/a The Palace Hotel violated Section 8(a)(l) when Pinero told the musicians have refused and continue to refuse since on or about in June 1979 not to pay their "taxes" to the Union. I find November 27, 1978, to bargain collectively in that they no merit as to the allegation that he had made substan- have stated then they no longer recognize the Union as tially the same comment in April 1979 as there is no t h e bargaining agent of their musician employees and credible evidence thereon. also sought to withdraw the authority they issued to the Respondent Puerto Rico Hotel Association to negotiate a CONCLUSIONS OF LAW renewal contract with the above-named organization vis- 1. Puerto Rico Hotel Association, Hilton Internationl . a-vis the unit of employees described above in paragraph 1. Puerto Rico Hotel Association, Hilton International - ,, ,',, . , , , Company i/-/a. *rib H-ilton Hotel, HiTon» Interriation- 3 despite the fact that, at that time, the renewal contract Company d/b/a Canibe Hilton Hotel, Hilton Intemnation-',..,, ,.. alrCompany d/b/a La Concha H »o utel n Beach R», negotiations were substantially underway and in that the al Company d/b/a La Concha Hotel-Condado Beach °„ j i r i r c* Hotel, Condado Holiday Inn, San Juan Hotel Corpora- s aid Respondents have failed and refused and are failing tion d/b/a El San Juan Hotel and El Conquistador a nd refusing to honor the collective-bargaining agree- Hotel, and the Puerto Rico Hotel Corporation d/b/a m en t r eac h ed o n ab o ut A p ri l 30 , 1979, between the said The Palace Hotel, are employers engaged in commerce l ab o r organization with the Respondent Puerto Rico within the meaning of Section 2(2), (6), and (7) of the H o t el Association notwithstanding that said Respondents Act. have reached agreement with the said labor organization 2. Federacion de Musicos de Puerto Rico, Local 468, as to the minimum number of musicians to be employed American Federation of Musicians, AFL-CIO, is a labor by t h em an d t h e said Respondents by the foregoing con- organization within the meaning of Section 2(5) of the d uc t h a v e engaged in and are engaging in unfair labor Act. practices within the meaning of Section 8(a)(5) of the 3. All musicians employed by Class AA hotels exclud- Act. ing travelers, independent contractors, all other employ- 8. T h e Respondent Puerto Rico Hotel Associaton did ees, leaders and all other supervisors as defined in the not, in violation of the Act, unilaterally change the Act, comprise a unit appropriate for the purposes of col- agreed-upon recognition clause of its current agreement lective bargaining within the meaning of Section 9(b) of with the above-named labor organization. the Act. 9. The Respondent Hilton International Company, 4. At all times material herein, the above-named labor d/b/a Caribe Hilton Hotel, did not, in violation of the organization has been and is now the exclusive repre- Act, (a) discharge its employee Pedro Chiclana because sentative of the employees employed in the unit de- of his activities on behalf of the above-named labor orga- scribed above in paragraph 3 for the purposes of collec- nization, (b) create the impression that it engaged in the tive bargaining within the meaning of Section 9(a) of the surveillance of activities of employees on behalf of that Act. labor organization, (c) impliedly warn employees against 5. By having refused, since on or about January 8, supporting that labor organization, (d) direct its musician 1979 to bargain collectively with the above-named labor employees not to strike or picket, (e) instruct its musi- organization in that it insisted, as a threshold issue in bar- cians in April 1979 not to pay working dues to the 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited the General Counsel's witnesses as to only the gaining, that this labor organization admit that the em- second occasion, in June 1979. ployees in the unit it represents are not employees of the I have also found above that the musicians in this case, Class AA hotels and in connection therewith by insisting including Pinero are employees of the Class AA hotels. I that the labor organization withdraw unfair labor prac- now further find that Pinero was a supervisor of the Re- tice charges it had filed which asserted that the unit em- spondent Caribe Hilton, as defined in Section 2(11) of ployees are employees of these hotels, the Respondent the Act. Specifically, the evidence demonstrates that Puerto Rico Hotel Association has engaged in and is en- Pinero held the title of musical director of the Caribe gaging in unfair labor practices within the meaning of Hilton hotel as given him by the hotel's manager at a Section 8(a)(5) of the Act. cocktail party held to announce the event, that in his 6. The Respondent Puerto Rico Hotel Association and duties at the hotel he received communications in writ- the following Respondents whom it represents for pur- ing from the hotel's food and beverage manager on poses of collective bargaining: Hilton International Com- "inter-office" memorandum which pertained to the su- pany d/b/a Caribe Hilton Hotel, Condado Holiday Inn, pervison of the musician emoloyees, that he collected San Juan Hotel Corporation d/b/a El San Juan Hotel and transmitted to the hotel's payroll section various re- and El Conquisdator Hotel, and The Puerto Rico Hotel cords needed to compute the paychecks of the respective Corporation d/b/a The Palace Hotel have, since on or musicians, that he distributed to individual musicians about June 18, 1979, refused and are refusing to bargain paychecks drawn by the hotel to the order of each musi- collectively with the above-named labor organization by cian, that he responsibly directed the musicians in his promoting the use of and using personal service con- group in the interest of the hotel's goal to offer food, tracts with leaders of musical groups of employees of beverages, dancing, atmosphere, and service to its clien- Class AA hotels in Puerto Rico in furtherance of its un- tel and that he possessed and exercised the authority to lawful disclaimer that the said musicians employees are hire and discharge musicians performing with the Pijuan e o the C A htl sextet at the Club Caribe in the hotel. It is apparent that e7plTheespondents an HotelC Pinero meets at least one of the statutory criteria set out 7 T h e Respondents San Juan Hotel Corporation d/b/a in Section 2(11) and thus is a supervisor as so defined. El San J u an Hotel and El Conquistador Hotel, and the I thus conclude that the Respondent Caribe Hilton Puerto Rico Hotel Corporation d/b/a The Palace Hotel violated Section 8(a)(l) when Pinero told the musicians have refused and continue to refuse since on or about in June 1979 not to pay their "taxes" to the Union. I find November 27, 1978, to bargain collectively in that they no merit as to the allegation that he had made substan- have stated then they no longer recognize the Union as tially the same comment in April 1979 as there is no t h e bargaining agent of their musician employees and credible evidence thereon. also sought to withdraw the authority they issued to the Respondent Puerto Rico Hotel Association to negotiate a CONCLUSIONS OF LAW renewal contract with the above-named organization vis- 1. Puerto Rico Hotel Association, Hilton Internationl . a-vis the unit of employees described above in paragraph 1. Puerto Rico Hotel Association, Hilton International - ,, ,',, . , , , Company i/-/a. *rib H-ilton Hotel, HiTon» Interriation- 3 despite the fact that, at that time, the renewal contract Company d/b/a Canibe Hilton Hotel, Hilton Intemnation-',..,, ,.. alrCompany d/b/a La Concha H »o utel n Beach R», negotiations were substantially underway and in that the al Company d/b/a La Concha Hotel-Condado Beach °„ j i r i r cr Hotel, Condado Holiday Inn, San Juan Hotel Corpora- s aid Respondents have failed and refused and are failing tion d/b/a El San Juan Hotel and El Conquistador a nd refusing to honor the collective-bargaining agree- Hotel, and the Puerto Rico Hotel Corporation d/b/a m en t r eac h ed o n ab o ut A p ri l 30 , 1979, between the said The Palace Hotel, are employers engaged in commerce l ab o r organization with the Respondent Puerto Rico within the meaning of Section 2(2), (6), and (7) of the H o t el Association notwithstanding that said Respondents Act. have reached agreement with the said labor organization 2. Federacion de Musicos de Puerto Rico, Local 468, as to the minimum number of musicians to be employed American Federation of Musicians, AFL-CIO, is a labor by t h em an d t h e said Respondents by the foregoing con- organization within the meaning of Section 2(5) of the d uc t h a v e engaged in and are engaging in unfair labor Act. practices within the meaning of Section 8(a)(5) of the 3. All musicians employed by Class AA hotels exclud- Act. ing travelers, independent contractors, all other employ- 8. T h e Respondent Puerto Rico Hotel Associaton did ees, leaders and all other supervisors as defined in the not, in violation of the Act, unilaterally change the Act, comprise a unit appropriate for the purposes of col- agreed-upon recognition clause of its current agreement lective bargaining within the meaning of Section 9(b) of with the above-named labor organization. the Act. 9. The Respondent Hilton International Company, 4. At all times material herein, the above-named labor d/b/a Caribe Hilton Hotel, did not, in violation of the organization has been and is now the exclusive repre- Act, (a) discharge its employee Pedro Chiclana because sentative of the employees employed in the unit de- of his activities on behalf of the above-named labor orga- scribed above in paragraph 3 for the purposes of collec- nization, (b) create the impression that it engaged in the tive bargaining within the meaning of Section 9(a) of the surveillance of activities of employees on behalf of that Act. labor organization, (c) impliedly warn employees against 5. By having refused, since on or about January 8, supporting that labor organization, (d) direct its musician 1979 to bargain collectively with the above-named labor employees not to strike or picket, (e) instruct its musi- organization in that it insisted, as a threshold issue in bar- cians in April 1979 not to pay working dues to the 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited the General Counsel's witnesses as to only the gaining, that this labor organization admit that the em- second occasion, in June 1979. ployees in the unit it represents are not employees of the I have also found above that the musicians in this case, Class AA hotels and in connection therewith by insisting including Pinero are employees of the Class AA hotels. I that the labor organization withdraw unfair labor prac- now further find that Pinero was a supervisor of the Re- tice charges it had filed which asserted that the unit em- spondent Caribe Hilton, as defined in Section 2(11) of ployees are employees of these hotels, the Respondent the Act. Specifically, the evidence demonstrates that Puerto Rico Hotel Association has engaged in and is en- Pinero held the title of musical director of the Caribe gaging in unfair labor practices within the meaning of Hilton hotel as given him by the hotel's manager at a Section 8(a)(5) of the Act. cocktail party held to announce the event, that in his 6. The Respondent Puerto Rico Hotel Association and duties at the hotel he received communications in writ- the following Respondents whom it represents for pur- ing from the hotel's food and beverage manager on poses of collective bargaining: Hilton International Com- "inter-office" memorandum which pertained to the su- pany d/b/a Caribe Hilton Hotel, Condado Holiday Inn, pervison of the musician emoloyees, that he collected San Juan Hotel Corporation d/b/a El San Juan Hotel and transmitted to the hotel's payroll section various re- and El Conquisdator Hotel, and The Puerto Rico Hotel cords needed to compute the paychecks of the respective Corporation d/b/a The Palace Hotel have, since on or musicians, that he distributed to individual musicians about June 18, 1979, refused and are refusing to bargain paychecks drawn by the hotel to the order of each musi- collectively with the above-named labor organization by cian, that he responsibly directed the musicians in his promoting the use of and using personal service con- group in the interest of the hotel's goal to offer food, tracts with leaders of musical groups of employees of beverages, dancing, atmosphere, and service to its clien- Class AA hotels in Puerto Rico in furtherance of its un- tel and that he possessed and exercised the authority to lawful disclaimer that the said musicians employees are hire and discharge musicians performing with the Pijuan e o the C A htl sextet at the Club Caribe in the hotel. It is apparent that e7plTheespondents an HotelC Pinero meets at least one of the statutory criteria set out 7 T h e Respondents San Juan Hotel Corporation d/b/a in Section 2(11) and thus is a supervisor as so defined. El San J u an Hotel and El Conquistador Hotel, and the I thus conclude that the Respondent Caribe Hilton Puerto Rico Hotel Corporation d/b/a The Palace Hotel violated Section 8(a)(l) when Pinero told the musicians have refused and continue to refuse since on or about in June 1979 not to pay their "taxes" to the Union. I find November 27, 1978, to bargain collectively in that they no merit as to the allegation that he had made substan- ha v e stated then they no longer recognize the Union as tially the same comment in April 1979 as there is no the bargaining agent of their musician employees and credible evidence thereon. also sought to withdraw the authority they issued to the Respondent Puerto Rico Hotel Association to negotiate a CONCLUSIONS OF LAW renewal contract with the above-named organization vis- 1. Puerto Rico Hotel Association, Hilton Internationl . a-vis the unit of employees described above in paragraph 1. Puerto Rico Hotel Association, Hilton International - ,, ,',, . , , , Company i/-/a. *rib H-ilton Hotel, HiTon» Interriation- 3 despite the fact that, at that time, the renewal contract Company d/b/a Canibe Hilton Hotel, Hilton Intemnation-',..,, ,.. alrCompany d/b/a La Concha H »o utel n Beach R», negotiations were substantially underway and in that the al Company d/b/a La Concha Hotel-Condado Beach °„ j i r i r cr Hotel, Condado Holiday Inn, San Juan Hotel Corpora- s aid Respondents have failed and refused and are failing tion d/b/a El San Juan Hotel and El Conquistador a nd refusing to honor the collective-bargaining agree- Hotel, and the Puerto Rico Hotel Corporation d/b/a m en t r eac h ed o n ab o ut A p ri l 30 , 1979, between the said The Palace Hotel, are employers engaged in commerce l ab o r organization with the Respondent Puerto Rico within the meaning of Section 2(2), (6), and (7) of the H o t el Association notwithstanding that said Respondents Act. have reached agreement with the said labor organization 2. Federacion de Musicos de Puerto Rico, Local 468, as to the minimum number of musicians to be employed American Federation of Musicians, AFL-CIO, is a labor by the m and the said Respondents by the foregoing con- organization within the meaning of Section 2(5) of the d uc t h a v e engaged in and are engaging in unfair labor Act. practices within the meaning of Section 8(a)(5) of the 3. All musicians employed by Class AA hotels exclud- Act. ing travelers, independent contractors, all other employ- 8. T h e Respondent Puerto Rico Hotel Associaton did ees, leaders and all other supervisors as defined in the not, in violation of the Act, unilaterally change the Act, comprise a unit appropriate for the purposes of col- agreed-upon recognition clause of its current agreement lective bargaining within the meaning of Section 9(b) of with the above-named labor organization. the Act. 9. The Respondent Hilton International Company, 4. At all times material herein, the above-named labor d/b/a Caribe Hilton Hotel, did not, in violation of the organization has been and is now the exclusive repre- Act, (a) discharge its employee Pedro Chiclana because sentative of the employees employed in the unit de- of his activities on behalf of the above-named labor orga- scribed above in paragraph 3 for the purposes of collec- nization, (b) create the impression that it engaged in the tive bargaining within the meaning of Section 9(a) of the surveillance of activities of employees on behalf of that Act. labor organization, (c) impliedly warn employees against 5. By having refused, since on or about January 8, supporting that labor organization, (d) direct its musician 1979 to bargain collectively with the above-named labor employees not to strike or picket, (e) instruct its musi- organization in that it insisted, as a threshold issue in bar- cians in April 1979 not to pay working dues to the PUERTO RICO HOTEL ASSOCIATION 453 Union but it has interfered with, restrained, and coerced 1. Cease and desist from: its emoloyees with respect to their rights under Section 7 (a) Refusing to bargain collectively with Federacion of the Act by having, through its supervisor, Juan de Musicos de Puerto Rico, Local 468, American Feder- Pinero, instructed its musician employees in June 1979 ation of Musicians, AFL-CIO, by insisting that the offi- that they are not to pay working dues to the said labor cials of the Union state or acknowledge in writing that organization and thus the Respondent thereby violated musicians employed by the Class AA hotels in Puerto Section 8(a)(1) of the Act. Rico are not employees of those hotels entitled to the 10. The Respondents Puerto Rico Hotel Association, rights guaranteed them under Section 7 of the Act or by San Juan Hotel Corporation d/b/a El San Juan Hotel requiring the Union to withdraw unfair labor practice and El Conquistador, The Puerto Hotel Corporation charges it filed to protect those rights. d/b/a The Palace Hotel, Hilton International Company (b) Refusing to bargain collectively with the Union by d/b/a Caribe Hilton Hotel, and Condado Holiday Inn, promoting the use of personal service contracts by Class did not in violation of Section 8(aX1) or (5) of the Act AA hotels whereby hotel supervisors who lead and unilaterally change the terms and conditions of employ- direct musician employees purport to be the employers ment of its musician employees by promoting the use of, of those musicians in derogation of the Union's status as or by using, personal service contracts with their respec- exclusive collective-bargaining representatives of those tive supervisors. employees. 11. By the refusals to bargain collectively with the (c) In any like or related manner interfering with, re- Union as set out above in paragraph 5, 6, and 7, the Re- straining, or coercing employees in the exercise of the spondents named therein have interfered with, restrained, rights guaranteed them in Section 7 of the Act. and coerced and are interfering with, restraining, and co- 2. Take the following affirmative action necessary to ercing employees in the exercise of the rights guaranteed effectuate the policies of the Act: them in Section 7 of the Act and thereby have engaged (a) Post at its principal office copies of the attached in and are engaging in unfair labor practices within the notice marked "Appendix A."2 7 Copies of this notice, on meaning of Section 8(aXl) of the Act. forms to be provided by the Regional Director for 12. The activities of each Respondent set forth above, Region 24, after being signed by a duly authorized repre- occurring in connection with its operations also de- sentative of the Association, shall be conspicuously scribed above, have a close, intimate, and substantial re- posted immediately upon receipt thereof and be main- lationship to trade, traffic, and commerce among the sev- tained by it for 60 consecutive days thereafter, in all eral States and the Commonwealth of Puerto Rico and places where notices to all employees are customarily tend to lead to labor disputes burdening and obstructing posted. commerce and the free flow of commerce. (b) Return to the Regional Director as many addition- THE REMEDY al copies of Appendix A, signed as indicated above, in order to allow for the further posting of those signed no- Having found that the Respondents have engaged in tices on the premises of those of the other Respondents and are engaging in unfair labor practices within the in this case, as provided for below and to allow also for meaning of Section 8(a)(l) and (5) of the Act, I find it the Regional Director to forward to the Union three necessary to order that they cease and desist therefrom signed copies for posting at the Union's premises if it and to take certain affirmative action in order to effectu- chooses to do so. ate the policies of the Act. Those Respondent hotels (c) Notify the Regional Director, in writing, within 20 found to have separately violated the Act will be or- days from the date of this Order, what steps have been dered to post the notice to be signed by the Association taken to comply herewith. in addition to the notices remedying the violations they II. Respondent San Juan Hotel Corporation d/b/a El committed as the areas found to be violative are overlap- San Juan Hotel and El Conquistador Hotel and Respond- ping. Those Class AA hotels not otherwise involved will ent The Puerto Rico Hotel Corporation d/b/a The not be ordered to post notices as copies of the Associ- Palace Hotel, San Juan, Puerto Rico, their officers, ation's notice will be sent to the Union's office where all agents, successors, and assigns, herein jointly called San employees in the unit will have the opportunity to read Juan et at, shall: it. 1. Cease and desist from: Upon the foregoing findings of fact and conclusions of (a) Refusing to bargain collectively with the Union by law, upon the entire record, and pursuant to Section withdrawing recognition from it as the exclusive repre- 10(c) of the Act, I hereby issue the following recom- sentative of a multiemployer unit consisting of, among mended: others, musicians in the employ of those three hotels and ORDER26 by attempting to withdraw from Respondent Association I. Respondent Puerto Rico Hotel Association, herein in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and called the Association, San Juan, Puerto Rico, its offi- become its findings, conclusions, and Order, and all objections thereto cers, agents, successors, and assigns, shall: shall be deemed waived for all purposes. cer, agen, sces an asig sa In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by " In the event no exceptions are filed as provided by Sec. 102.46 of Order of the National Labor Relations Board" shall read "Posted Pursu- the Rules and Regulations of the National Labor Relations Board, the ant to a Judgment of the United States Court of Appeals Enforcing an findings, conclusions, and recommended Order herein shall, as provided Order of the National Labor Relations Board." PUERTO RICO HOTEL ASSOCIATION 453 Union but it has interfered with, restrained, and coerced 1. Cease and desist from: its emoloyees with respect to their rights under Section 7 (a) Refusing to bargain collectively with Federacion of the Act by having, through its supervisor, Juan de Musicos de Puerto Rico, Local 468, American Feder- Pinero, instructed its musician employees in June 1979 ation of Musicians, AFL-CIO, by insisting that the offi- that they are not to pay working dues to the said labor cials of the Union state or acknowledge in writing that organization and thus the Respondent thereby violated musicians employed by the Class AA hotels in Puerto Section 8(a)(l) of the Act. Rico are not employees of those hotels entitled to the 10. The Respondents Puerto Rico Hotel Association, rights guaranteed them under Section 7 of the Act or by San Juan Hotel Corporation d/b/a El San Juan Hotel requiring the Union to withdraw unfair labor practice and El Conquistador, The Puerto Hotel Corporation charges it filed to protect those rights. d/b/a The Palace Hotel, Hilton International Company (b) Refusing to bargain collectively with the Union by d/b/a Caribe Hilton Hotel, and Condado Holiday Inn, promoting the use of personal service contracts by Class did not in violation of Section 8(aXl) or (5) of the Act AA hotels whereby hotel supervisors who lead and unilaterally change the terms and conditions of employ- direct musician employees purport to be the employers ment of its musician employees by promoting the use of, of those musicians in derogation of the Union's status as or by using, personal service contracts with their respec- exclusive collective-bargaining representatives of those tive supervisors. employees. 11. By the refusals to bargain collectively with the (c) In any like or related manner interfering with, re- Union as set out above in paragraph 5, 6, and 7, the Re- straining, or coercing employees in the exercise of the spondents named therein have interfered with, restrained, rights guaranteed them in Section 7 of the Act. and coerced and are interfering with, restraining, and co- 2. Take the following affirmative action necessary to ercing employees in the exercise of the rights guaranteed effectuate the policies of the Act: them in Section 7 of the Act and thereby have engaged (a) Post at its principal office copies of the attached in and are engaging in unfair labor practices within the notice marked "Appendix A." 2 7 Copies of this notice, on meaning of Section 8(aX1) of the Act. forms to be provided by the Regional Director for 12. The activities of each Respondent set forth above, Region 24, after being signed by a duly authorized repre- oc c urring in c o n n ec tio n w it h its o p e rations als o d e - sentative of the Association, shall be conspicuously scribed above, have a close, intimate, and substantial re- p immediately upon receipt thereof and be main- lationship to trade, traffic, and commerce among the sev- tained by it for 60 consecutive days thereafter, in all eral States and the Commonwealth of Puerto Rico and p s e notices to all employees are customarily tend to lead to labor disputes burdening and obstructing posted. commerce and the free flow of commerce. (b) Return to the Regional Director as many addition- THE REMEDY al copies of Appendix A, signed as indicated above, in order to allow for the further posting of those signed no- Having found that the Respondents have engaged in tices on the premises of those of the other Respondents and are engaging in unfair labor practices within the in this case, as provided for below and to allow also for meaning of Section 8(a)l) and (5) of the Act, I find it the Regional Director to forward to the Union three necessary to order that they cease and desist therefrom signed copies for posting at the Union's premises if it and to take certain affirmative action in order to effectu- chooses to do so. ate the policies of the Act. Those Respondent hotels (c) Notify the Regional Director, in writing, within 20 found to have separately violated the Act will be or- days from the date of this Order, what steps have been dered to post the notice to be signed by the Association taken to comply herewith. in addition to the notices remedying the violations they 11. Respondent San Juan Hotel Corporation d/b/a El committed as the areas found to be violative are overlap- San Juan Hotel and El Conquistador Hotel and Respond- ping. Those Class AA hotels not otherwise involved will ent The Puerto Rico Hotel Corporation d/b/a The not be ordered to post notices as copies of the Associ- Palace Hotel, San Juan, Puerto Rico, their officers, ation's notice will be sent to the Union's office where all agents, successors, and assigns, herein jointly called San employees in the unit will have the opportunity to read Juan et al, shall: it. 1. Cease and desist from: Upon the foregoing findings of fact and conclusions of (a) Refusing to bargain collectively with the Union by law, upon the en tir e r ec ord, and pursuant to Section withdrawing recognition from it as the exclusive repre- 10(c) of the Act, I hereby issue the following recom- sentative of a multiemployer unit consisting of, among mended: others, musicians in the employ of those three hotels and ORDER 26 b y attempting t o withdraw from Respondent Association I. Respondent Puerto Rico Hotel Association, herein in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and called the Association, San Juan, Puerto Rico, its offi- become its findings, conclusions, and Order, and all objections thereto cers, agents, successors, and assigns, shall: shall be deemed w aiv ed fo r all purposes. "e In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 2 In the event no exceptions are filed as provided by Sec. 102.46 of Order of the National Labor Relations Board" shall read "Posted Pursu- the Rules and Regulations of the National Labor Relations Board, the ant to a Judgment of the United States Court of Appeals Enforcing an findings, conclusions, and recommended Order herein shall, as provided Order of the National Labor Relations Board." PUERTO RICO HOTEL ASSOCIATION 453 Union but it has interfered with, restrained, and coerced 1. Cease and desist from: its emoloyees with respect to their rights under Section 7 (a) Refusing to bargain collectively with Federacion of the Act by having, through its supervisor, Juan de Musicos de Puerto Rico, Local 468, American Feder- Pinero, instructed its musician employees in June 1979 ation of Musicians, AFL-CIO, by insisting that the offi- that they are not to pay working dues to the said labor cials of the Union state or acknowledge in writing that organization and thus the Respondent thereby violated musicians employed by the Class AA hotels in Puerto Section 8(a)(l) of the Act. Rico are not employees of those hotels entitled to the 10. The Respondents Puerto Rico Hotel Association, rights guaranteed them under Section 7 of the Act or by San Juan Hotel Corporation d/b/a El San Juan Hotel requiring the Union to withdraw unfair labor practice and El Conquistador, The Puerto Hotel Corporation charges it filed to protect those rights. d/b/a The Palace Hotel, Hilton International Company (b) Refusing to bargain collectively with the Union by d/b/a Caribe Hilton Hotel, and Condado Holiday Inn, promoting the use of personal service contracts by Class did not in violation of Section 8(aXl) or (5) of the Act AA hotels whereby hotel supervisors who lead and unilaterally change the terms and conditions of employ- direct musician employees purport to be the employers ment of its musician employees by promoting the use of, of those musicians in derogation of the Union's status as or by using, personal service contracts with their respec- exclusive collective-bargaining representatives of those tive supervisors. employees. 11. By the refusals to bargain collectively with the (c) In any like or related manner interfering with, re- Union as set out above in paragraph 5, 6, and 7, the Re- straining, or coercing employees in the exercise of the spondents named therein have interfered with, restrained, rights guaranteed them in Section 7 of the Act. and coerced and are interfering with, restraining, and co- 2. Take the following affirmative action necessary to ercing employees in the exercise of the rights guaranteed effectuate the policies of the Act: them in Section 7 of the Act and thereby have engaged (a) Post at its principal office copies of the attached in and are engaging in unfair labor practices within the notice marked "Appendix A." 2 7 Copies of this notice, on meaning of Section 8(aX1) of the Act. forms to be provided by the Regional Director for 12. The activities of each Respondent set forth above, Region 24, after being signed by a duly authorized repre- oc c urring in c o n n ec tio n w it h its o p e rations als o d e - sentative of the Association, shall be conspicuously scribed above, have a close, intimate, and substantial re- pmediately upon receipt thereof and be main- lationship to trade, traffic, and commerce among the sev- tained by it for 60 consecutive days thereafter, in all eral States and the Commonwealth of Puerto Rico and p s e notices to all employees are customarily tend to lead to labor disputes burdening and obstructing posted. commerce and the free flow of commerce. (b) Return to the Regional Director as many addition- THE REMEDY al copies of Appendix A, signed as indicated above, in order to allow for the further posting of those signed no- Having found that the Respondents have engaged in tices on the premises of those of the other Respondents and are engaging in unfair labor practices within the in this case, as provided for below and to allow also for meaning of Section 8(a)l) and (5) of the Act, I find it the Regional Director to forward to the Union three necessary to order that they cease and desist therefrom signed copies for posting at the Union's premises if it and to take certain affirmative action in order to effectu- chooses to do so. ate the policies of the Act. Those Respondent hotels (c) Notify the Regional Director, in writing, within 20 found to have separately violated the Act will be or- days from the date of this Order, what steps have been dered to post the notice to be signed by the Association taken to comply herewith. in addition to the notices remedying the violations they 11. Respondent San Juan Hotel Corporation d/b/a El committed as the areas found to be violative are overlap- San Juan Hotel and El Conquistador Hotel and Respond- ping. Those Class AA hotels not otherwise involved will ent The Puerto Rico Hotel Corporation d/b/a The not be ordered to post notices as copies of the Associ- Palace Hotel, San Juan, Puerto Rico, their officers, ation's notice will be sent to the Union's office where all agents, successors, and assigns, herein jointly called San employees in the unit will have the opportunity to read Juan et al, shall: it. 1. Cease and desist from: Upon the foregoing findings of fact and conclusions of (a) Refusing to bargain collectively with the Union by law, upon the en tir e r ec ord, and pursuant to Section withdrawing recognition from it as the exclusive repre- 10(c) of the Act, I hereby issue the following recom- sentative of a multiemployer unit consisting of, among mended: others, musicians in the employ of those three hotels and ORDER 26 b y attempting t o withdraw from Respondent Association I. Respondent Puerto Rico Hotel Association, herein in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and called the Association, San Juan, Puerto Rico, its offi- become its findings, conclusions, and Order, and all objections thereto cers, agents, successors, and assigns, shall: shall be deemed w aiv ed fo r all purposes. "e In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 2 In the event no exceptions are filed as provided by Sec. 102.46 of Order of the National Labor Relations Board" shall read "Posted Pursu- the Rules and Regulations of the National Labor Relations Board, the ant to a Judgment of the United States Court of Appeals Enforcing an findings, conclusions, and recommended Order herein shall, as provided Order of the National Labor Relations Board." PUERTO RICO HOTEL ASSOCIATION 453 Union but it has interfered with, restrained, and coerced 1. Cease and desist from: its emoloyees with respect to their rights under Section 7 (a) Refusing to bargain collectively with Federacion of the Act by having, through its supervisor, Juan de Musicos de Puerto Rico, Local 468, American Feder- Pinero, instructed its musician employees in June 1979 ation of Musicians, AFL-CIO, by insisting that the offi- that they are not to pay working dues to the said labor cials of the Union state or acknowledge in writing that organization and thus the Respondent thereby violated musicians employed by the Class AA hotels in Puerto Section 8(a)(l) of the Act. Rico are not employees of those hotels entitled to the 10. The Respondents Puerto Rico Hotel Association, rights guaranteed them under Section 7 of the Act or by San Juan Hotel Corporation d/b/a El San Juan Hotel requiring the Union to withdraw unfair labor practice and El Conquistador, The Puerto Hotel Corporation charges it filed to protect those rights. d/b/a The Palace Hotel, Hilton International Company (b) Refusing to bargain collectively with the Union by d/b/a Caribe Hilton Hotel, and Condado Holiday Inn, promoting the use of personal service contracts by Class did not in violation of Section 8(aXl) or (5) of the Act AA hotels whereby hotel supervisors who lead and unilaterally change the terms and conditions of employ- direct musician employees purport to be the employers ment of its musician employees by promoting the use of, of those musicians in derogation of the Union's status as or by using, personal service contracts with their respec- exclusive collective-bargaining representatives of those tive supervisors. employees. 11. By the refusals to bargain collectively with the (c) In any like or related manner interfering with, re- Union as set out above in paragraph 5, 6, and 7, the Re- straining, or coercing employees in the exercise of the spondents named therein have interfered with, restrained, rights guaranteed them in Section 7 of the Act. and coerced and are interfering with, restraining, and co- 2. Take the following affirmative action necessary to ercing employees in the exercise of the rights guaranteed effectuate the policies of the Act: them in Section 7 of the Act and thereby have engaged (a) Post at its principal office copies of the attached in and are engaging in unfair labor practices within the notice marked "Appendix A." 2 7 Copies of this notice, on meaning of Section 8(aX1) of the Act. forms to be provided by the Regional Director for 12. The activities of each Respondent set forth above, Region 24, after being signed by a duly authorized repre- oc c urring in c o n n ec tio n w it h its o p e rations als o d e - sentative of the Association, shall be conspicuously scribed above, have a close, intimate, and substantial re- pmediately upon receipt thereof and be main- lationship to trade, traffic, and commerce among the sev- tained by it for 60 consecutive days thereafter, in all eral States and the Commonwealth of Puerto Rico and p s e notices to all employees are customarily tend to lead to labor disputes burdening and obstructing posted. commerce and the free flow of commerce. (b) Return to the Regional Director as many addition- THE REMEDY al copies of Appendix A, signed as indicated above, in order to allow for the further posting of those signed no- Having found that the Respondents have engaged in tices on the premises of those of the other Respondents and are engaging in unfair labor practices within the in this case, as provided for below and to allow also for meaning of Section 8(aXl) and (5) of the Act, I find it the Regional Director to forward to the Union three necessary to order that they cease and desist therefrom signed copies for posting at the Union's premises if it and to take certain affirmative action in order to effectu- chooses to do so. ate the policies of the Act. Those Respondent hotels (c) Notify the Regional Director, in writing, within 20 found to have separately violated the Act will be or- days from the date of this Order, what steps have been dered to post the notice to be signed by the Association taken to comply herewith. in addition to the notices remedying the violations they 11. Respondent San Juan Hotel Corporation d/b/a El committed as the areas found to be violative are overlap- San Juan Hotel and El Conquistador Hotel and Respond- ping. Those Class AA hotels not otherwise involved will ent The Puerto Rico Hotel Corporation d/b/a The not be ordered to post notices as copies of the Associ- Palace Hotel, San Juan, Puerto Rico, their officers, ation's notice will be sent to the Union's office where all agents, successors, and assigns, herein jointly called San employees in the unit will have the opportunity to read Juan et al, shall: it. 1. Cease and desist from: Upon the foregoing findings of fact and conclusions of (a) Refusing to bargain collectively with the Union by law, upon the en tir e r ec ord, and pursuant to Section withdrawing recognition from it as the exclusive repre- 10(c) of the Act, I hereby issue the following recom- sentative of a multiemployer unit consisting of, among mended: others, musicians in the employ of those three hotels and ORDER 26 b y attempting t o withdraw from Respondent Association I. Respondent Puerto Rico Hotel Association, herein in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and called the Association, San Juan, Puerto Rico, its offi- become its findings, conclusions, and Order, and all objections thereto cers, agents, successors, and assigns, shall: shall be deemed w aiv ed fo r all purposes. e" In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 2 In the event no exceptions are filed as provided by Sec. 102.46 of Order of the National Labor Relations Board" shall read "Posted Pursu- the Rules and Regulations of the National Labor Relations Board, the ant to a Judgment of the United States Court of Appeals Enforcing an findings, conclusions, and recommended Order herein shall, as provided Order of the National Labor Relations Board." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the authority to negotiate a renewal contract with the at these same locations and under the same conditions Union covering, inter alia, musicians employed by Re- immediately upon receiving such copies from the Re- spondent San Juan, et al. after the Union has submitted gional Director for Region 24. its bargaining demands for that contract renewal. (b) Notify the Regional Director, in writing, within 20 (b) Refusing to bargain collectively with the Union by days from the date of this Order, what steps have been using personal service contracts with its leaders who su- taken to comply herewith. pervise its musician employees which purport to identify IV. Respondent Condado Holiday Inn, San Juan, those leaders as the employers of the musicians in dero- Puerto Rico, its officers, agents, successors, and assigns, gation of the Union's status as the exclusive bargaining shall: representative of those musician employees. i. Cease and desist from: (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights (a) Using personal service contract forms in employing guaranteed in Section 7 of the Act. or retaining musicians in its employ and whereby its su- 2. Take the following affirmative action designed to ef- pervisors who lead musicians are purported to be the fectuate the policies of the Act: employers of those employees, in derogation of the (a) Upon request by the Union, sign the collective-bar- Union's status as their exclusive bargaining representa- gaining agreement reached between the Association and tive. the Union on about April 30, 1979. (b) In any like or related manner interfering with, re- (b) Post the attached notice marked "Appendix B" 28 straining, or coercing its employees respecting the exer- on the premises of the El San Juan, El Conquistador, and cise of the rights guaranteed them under Section 7 of the The Palace Hotels. Copies of this notice, on forms to be Act. provided by the Regional Director for Region 24, after 2. Take the following affirmative action necessary to being duly signed by an authorized representative or rep- effectuate the purposes of the Act: resentatives for Respondent El San Juan et al., shall be (a) Post the attached notice marked "Appendix D 3 conspicuously posted immediately upon receipt thereof, on its remises Coies of the notice on forms rovided and be maintained by it for 60 consecutive days thereaf- t s p p of te noie, fr provided ter, in all places at these three hotels where notices to b the Regional Director for Region 24, after being duly employees are customarily posted. Post also signed signed by an authorized representative, shall be conspicu- copies of Appendix A at these same locations and under ously posted immediately upon receipt thereof and be the same conditions, immediately upon receiving such maintained by it for 60 consecutive days thereafter, at all copies from the Regional Director for Region 24. places where notices to employees are customarily (c) Notify the Regional Director, in writing, within 20 posted. Post also signed copies of Appendix A at these days from the date of this Order, what steps have been same locations and under the same conditions immediate- taken to comply herewith. ly upon receiving signed copies of that notice from the III. Respondent Hilton International Company, d/b/a Regional Director. Caribe Hilton Hotel, San Juan, Puerto Rico, its officers, (b) Notify the Regional Director what steps have been agents, successors, and assigns, shall: taken to comply herewith. 1. Cease and desist from: IT IS RECOMMENDED that the allegations of the com- (a) Using personal service contract forms in employing plaint as amended that Respondent Caribe Hilton violat- or in retaining musicians in its employ and whereby its ed Section 8(a)(l) and (3) of the Act by reason of the supervisors who lead those musicians are purported to be discharge of Pedro Chiclana be, and they hereby are, the employers of those employees, in derogation of the dismissed, as are the alleged independent violations of Union's status as their exclusive bargaining representa- Section 8(a) found above to be without merit tive. IT IS ALSO RECOMMENDED tha t o be without merit. (b) Directing its musician employees not to pay work- IT IS ALSO RECOMMENDED that the allegation that Re- ing dues to the Union. spondent Association, in violation of Section 8(a)() and (c) In any like or related manner interfering with, re- (5) of the Act, reneged upon the agreement reached with straining, or coercing its employees respecting the exer- the Union by inserting letters AFM in the recognition cise of the rights guaranteed them under Section 7 of the clause of that agreement in an attempt to limit its appli- Act. cation to members of the Union only, or as a unilateral 2. Take the following affirmative action necessary to act, is dismissed. effectuate the purposes of the Act: IT IS ALSO RECOMMENDED that the allegation that Re- (a) Post the attached notice marked "Appendix C"2 9 spondent Association unilaterally changed working con- on its premises. Copies of this notice, on forms to be pro- ditions of its musician employees in violation of Section vided by the Regional Director for Region 24, after 8(a)(5) of the Act by executing personal service contracts being duly signed by an authorized representative, shall with its supervisors is dismissed. be conspicuously posted immediately upon receipt there- of and be maintained by it for 60 consecutive days there- after, at all places where notices to its employees are cus- :' See fn. 27, supra. tomarily posted. Post also signed copies of Appendix A " See fn. 27, supra. 30 See fn. 27, supra. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the authority to negotiate a renewal contract with the at these same locations and under the same conditions Union covering, inter alia, musicians employed by Re- immediately upon receiving such copies from the Re- spondent San Juan, et al. after the Union has submitted gional Director for Region 24. its bargaining demands for that contract renewal. (b) Notify the Regional Director, in writing, within 20 (b) Refusing to bargain collectively with the Union by days from the date of this Order, what steps have been using personal service contracts with its leaders who su- taken to comply herewith. pervise its musician employees which purport to identify IV. Respondent Condado Holiday Inn, San Juan, those leaders as the employers of the musicians in dero- Puerto Rico, its officers, agents, successors, and assigns, gation of the Union's status as the exclusive bargaining shall: representative of those musician employees., C an d r (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights (a ) Using personal service contract forms in employing guaranteed in Section 7 of the Act. o r retaining musicians in its employ and whereby its su- 2. Take the following affirmative action designed to ef- pervisors who lead musicians are purported to be the fectuate the policies of the Act: employers of those employees, in derogation of the (a) Upon request by the Union, sign the collective-bar- Union's status as their exclusive bargaining representa- gaining agreement reached between the Association and tive. the Union on about April 30, 1979. (b) In any like or related manner interfering with, re- (b) Post the attached notice marked "Appendix B" 28 straining, or coercing its employees respecting the exer- on the premises of the El San Juan, El Conquistador, and cise of the rights guaranteed them under Section 7 of the The Palace Hotels. Copies of this notice, on forms to be Act. provided by the Regional Director for Region 24, after 2. Take the following affirmative action necessary to being duly signed by an authorized representative or rep- effectuate the purposes of the Act: resentatives for Respondent El San Juan et a!, shall be (a P th ac n m "Appendix D"'3 conspicuously posted immediately upon receipt thereof, . C o t ni on fr .od and be maintained by it for 60 consecutive days thereaf- o n b t s pRegional Dipeco of the notice, on forms provided ter, in all places at these three hotels where notices to sg t h e Regional Director for Region 24, after being duly employees are customarily posted. Post also signedsigned by an authorized representative, shall be conspicu- copies of Appendix A at these same locations and under ously posted immediately upon receipt thereof and be the same conditions, immediately upon receiving such maintained by it for 60 consecutive days thereafter, at all copies from the Regional Director for Region 24. places w h e re notices to employees are customarily (c) Notify the Regional Director, in writing, within 20 posted. Post also signed copies of Appendix A at these days from the date of this Order, what steps have been same locations and under the same conditions immediate- taken to comply herewith. ly upon receiving signed copies of that notice from the III. Respondent Hilton International Company, d/b/a Regional Director. Caribe Hilton Hotel, San Juan, Puerto Rico, its officers, (b) Notify the Regional Director what steps have been agents, successors, and assigns, shall: taken to comply herewith. 1. Cease and desist from: IT IS RECOMMENDED that the allegations of the com- (a) Using personal service contract forms in employing plaint as amended that Respondent Caribe Hilton violat- or in retaining musicians in its employ and whereby its ed Section 8(a)(l) and (3) of the Act by reason of the supervisors who lead those musicians are purported to be discharge of Pedro Chiclana be, and they hereby are, the employers of those employees, in derogation of the dismissed, as are the alleged independent violations of Union's status as their exclusive bargaining representa- St 8 ) f a t be w tive. IT IS ALSO RECOMMENDEDov that wthe alegaiontha Re (b) Directing its musician employees not to pay work- I T IS A LSO RECOMMENDED that the allegation that Re- ing dues to the Union. spondent Association, in violation of Section 8(aX1) and (c) In any like or related manner interfering with, re- (5 ) o f the Act, reneged upon the agreement reached with straining, or coercing its employees respecting the exer- the Union by inserting letters AFM in the recognition cise of the rights guaranteed them under Section 7 of the clause of that agreement in an attempt to limit its appli- Act. cation to members of the Union only, or as a unilateral 2. Take the following affirmative action necessary to act, is dismissed. effectuate the purposes of the Act: IT IS ALSO RECOMMENDED that the allegation that Re- (a) Post the attached notice marked "Appendix C" 29 spondent Association unilaterally changed working con- on its premises. Copies of this notice, on forms to be pro- ditions of its musician employees in violation of Section vided by the Regional Director for Region 24, after 8(a)(5) of the Act by executing personal service contracts being duly signed by an authorized representative, shall with its supervisors is dismissed. be conspicuously posted immediately upon receipt there- of and be maintained by it for 60 consecutive days there- after, at all places where notices to its employees are cus- ' See fn. 27, supra. tomarily posted. Post also signed copies of Appendix A See fn. 27. supra. 30 See fn. 27, supra. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the authority to negotiate a renewal contract with the at these same locations and under the same conditions Union covering, inter alia, musicians employed by Re- immediately upon receiving such copies from the Re- spondent San Juan, et al. after the Union has submitted gional Director for Region 24. its bargaining demands for that contract renewal. (b) Notify the Regional Director, in writing, within 20 (b) Refusing to bargain collectively with the Union by days from the date of this Order, what steps have been using personal service contracts with its leaders who su- taken to comply herewith. pervise its musician employees which purport to identify IV. Respondent Condado Holiday Inn, San Juan, those leaders as the employers of the musicians in dero- Puerto Rico, its officers, agents, successors, and assigns, gation of the Union's status as the exclusive bargaining shall: representative of those musician employees., C an d r (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights (a ) Using personal service contract forms in employing guaranteed in Section 7 of the Act. o r retaining musicians in its employ and whereby its su- 2. Take the following affirmative action designed to ef- pervisors who lead musicians are purported to be the fectuate the policies of the Act: employers of those employees, in derogation of the (a) Upon request by the Union, sign the collective-bar- Union's status as their exclusive bargaining representa- gaining agreement reached between the Association and tive. the Union on about April 30, 1979. (b) In any like or related manner interfering with, re- (b) Post the attached notice marked "Appendix B" 28 straining, or coercing its employees respecting the exer- on the premises of the El San Juan, El Conquistador, and cise of the rights guaranteed them under Section 7 of the The Palace Hotels. Copies of this notice, on forms to be Act. provided by the Regional Director for Region 24, after 2. Take the following affirmative action necessary to being duly signed by an authorized representative or rep- effectuate the purposes of the Act: resentatives for Respondent El San Juan et a!, shall be (a P th ac n m "Appendix D"'3 conspicuously posted immediately upon receipt thereof, . C o t ni on fr .od and be maintained by it for 60 consecutive days thereaf- o n b t s pRegional Dipeco of the notice, on forms provided ter, in all places at these three hotels where notices to sg t h e Regional Director for Region 24, after being duly employees are customarily posted. Post also signedsigned by an authorized representative, shall be conspicu- copies of Appendix A at these same locations and under ously posted immediately upon receipt thereof and be the same conditions, immediately upon receiving such maintained by it for 60 consecutive days thereafter, at all copies from the Regional Director for Region 24. places w h e re notices to employees are customarily (c) Notify the Regional Director, in writing, within 20 posted. Post also signed copies of Appendix A at these days from the date of this Order, what steps have been same locations and under the same conditions immediate- taken to comply herewith. ly upon receiving signed copies of that notice from the III. Respondent Hilton International Company, d/b/a Regional Director. Caribe Hilton Hotel, San Juan, Puerto Rico, its officers, (b) Notify the Regional Director what steps have been agents, successors, and assigns, shall: taken to comply herewith. 1. Cease and desist from: IT IS RECOMMENDED that the allegations of the com- (a) Using personal service contract forms in employing plaint as amended that Respondent Caribe Hilton violat- or in retaining musicians in its employ and whereby its ed section 8(a)(l) and (3) of the Act by reason of the supervisors who lead those musicians are purported to be discharge of Pedro Chiclana be, and they hereby are, the employers of those employees, in derogation of the dismissed, as are the alleged independent violations of Union's status as their exclusive bargaining representa- St 8 ) f a t be w tive. IT IS ALSO RECOMMENDEDov that wthe alegaiontha Re (b) Directing its musician employees not to pay work- I T IS A LSO RECOMMENDED that the allegation that Re- ing dues to the Union. spondent Association, in violation of Section 8(aX1) and (c) In any like or related manner interfering with, re- (5 ) of the Act, reneged upon the agreement reached with straining, or coercing its employees respecting the exer- the Union by inserting letters AFM in the recognition cise of the rights guaranteed them under Section 7 of the clause of that agreement in an attempt to limit its appli- Act. cation to members of the Union only, or as a unilateral 2. Take the following affirmative action necessary to act, is dismissed. effectuate the purposes of the Act: IT IS ALSO RECOMMENDED that the allegation that Re- (a) Post the attached notice marked "Appendix C" 29 spondent Association unilaterally changed working con- on its premises. Copies of this notice, on forms to be pro- ditions of its musician employees in violation of Section vided by the Regional Director for Region 24, after 8(a)(5) of the Act by executing personal service contracts being duly signed by an authorized representative, shall with its supervisors is dismissed. be conspicuously posted immediately upon receipt there- of and be maintained by it for 60 consecutive days there- after, at all places where notices to its employees are cus- See fn. 27, supra. tomarily posted. Post also signed copies of Appendix A See fn. 27. supra. 30 See fn. 27, supra. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the authority to negotiate a renewal contract with the at these same locations and under the same conditions Union covering, inter alia, musicians employed by Re- immediately upon receiving such copies from the Re- spondent San Juan, et al. after the Union has submitted gional Director for Region 24. its bargaining demands for that contract renewal. (b) Notify the Regional Director, in writing, within 20 (b) Refusing to bargain collectively with the Union by days from the date of this Order, what steps have been using personal service contracts with its leaders who su- taken to comply herewith. pervise its musician employees which purport to identify IV. Respondent Condado Holiday Inn, San Juan, those leaders as the employers of the musicians in dero- Puerto Rico, its officers, agents, successors, and assigns, gation of the Union's status as the exclusive bargaining shall: representative of those musician employees., C an d r (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights (a ) Using personal service contract forms in employing guaranteed in Section 7 of the Act. o r retaining musicians in its employ and whereby its su- 2. Take the following affirmative action designed to ef- pervisors who lead musicians are purported to be the fectuate the policies of the Act: employers of those employees, in derogation of the (a) Upon request by the Union, sign the collective-bar- Union's status as their exclusive bargaining representa- gaining agreement reached between the Association and tive. the Union on about April 30, 1979. (b) In any like or related manner interfering with, re- (b) Post the attached notice marked "Appendix B" 28 straining, or coercing its employees respecting the exer- on the premises of the El San Juan, El Conquistador, and cise of the rights guaranteed them under Section 7 of the The Palace Hotels. Copies of this notice, on forms to be Act. provided by the Regional Director for Region 24, after 2. Take the following affirmative action necessary to being duly signed by an authorized representative or rep- effectuate the purposes of the Act: resentatives for Respondent El San Juan et a!, shall be (a P th ac n m "Appendix D"'3 conspicuously posted immediately upon receipt thereof, . C o t ni on fr .od and be maintained by it for 60 consecutive days thereaf- o n b t s pRegional Dipeco or the notice, on forms provided ter, in all places at these three hotels where notices to sg t h e Regional Director for Region 24, after being duly employees are customarily posted. Post also signedsigned by an authorized representative, shall be conspicu- copies of Appendix A at these same locations and under ously posted immediately upon receipt thereof and be the same conditions, immediately upon receiving such maintained by it for 60 consecutive days thereafter, at all copies from the Regional Director for Region 24. places w h e re notices to employees are customarily (c) Notify the Regional Director, in writing, within 20 posted. Post also signed copies of Appendix A at these days from the date of this Order, what steps have been same locations and under the same conditions immediate- taken to comply herewith. ly upon receiving signed copies of that notice from the III. Respondent Hilton International Company, d/b/a Regional Director. Caribe Hilton Hotel, San Juan, Puerto Rico, its officers, (b) Notify the Regional Director what steps have been agents, successors, and assigns, shall: taken to comply herewith. 1. Cease and desist from: IT IS RECOMMENDED that the allegations of the com- (a) Using personal service contract forms in employing plaint as amended that Respondent Caribe Hilton violat- or in retaining musicians in its employ and whereby its ed Section 8(a)(l) and (3) of the Act by reason of the supervisors who lead those musicians are purported to be discharge of Pedro Chiclana be, and they hereby are, the employers of those employees, in derogation of the dismissed, as are the alleged independent violations of Union's status as their exclusive bargaining representa- St 8 ) f a t be w tive. IT IS ALSO RECOMMENDEDov that wthe alegaiontha Re (b) Directing its musician employees not to pay work- I T IS A LSO RECOMMENDED that the allegation that Re- ing dues to the Union. spondent Association, in violation of Section 8(aX1) and (c) In any like or related manner interfering with, re- (5 ) o f the Act, reneged upon the agreement reached with straining, or coercing its employees respecting the exer- the Union by inserting letters AFM in the recognition cise of the rights guaranteed them under Section 7 of the clause of that agreement in an attempt to limit its appli- Act. cation to members of the Union only, or as a unilateral 2. Take the following affirmative action necessary to act, is dismissed. effectuate the purposes of the Act: IT IS ALSO RECOMMENDED that the allegation that Re- (a) Post the attached notice marked "Appendix C" 29 spondent Association unilaterally changed working con- on its premises. Copies of this notice, on forms to be pro- ditions of its musician employees in violation of Section vided by the Regional Director for Region 24, after 8(a)(5) of the Act by executing personal service contracts being duly signed by an authorized representative, shall with its supervisors is dismissed. be conspicuously posted immediately upon receipt there- of and be maintained by it for 60 consecutive days there- after, at all places where notices to its employees are cus- See fn. 27, supra. tomarily posted. Post also signed copies of Appendix A See fn. 27. supra. 30 See fn. 27, supra. PUERTO RICO HOTEL ASSOCIATION 455 APPENDIX A WE WILL, upon request by the above-named Union, sign the collective-bargaining agreements NOTICE To EMPLOYEES agreed upon between the Union and the Association POSTED BY ORDER OF THE and effective as of April 20, 1979. NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government SAN JUAN HOTEL CORPORATION, D/B/A EL SAN JUAN HOTEL AND EL CONQUISTA- WE WILL NOT require Federacion de Musicos de DOR HOTEL; THE PUERTO RICO HOTEL Puerto Rico, Local 468, American Federation of CORPORATION D/B/A THE PALACE HOTEL Musicians, AFL-CIO, to state, in writing or other- wise, that steady engagement musicians employed APPENDIX C by Class AA hotels in the Commonwealth of Puerto Rico are not employees entitled to the rights NOTICE To EMPLOYEES guaranteed under Section 7 of the National Labor POSTED BY ORDER OF THE Relations Act, as amended. NATIONAL LABOR RELATIONS BOARD WE WILL NOT promote the use of personal serv- An Agency of the United States Government ice contract forms whereby these hotels purport to treat their musician employees as employees of their WE WILL NOT use personal service contract leaders as it has been found by the National Labor forms in which our musician employees are pur- Relations Board that these musicians are employees ported to be employees of their leaders and not our of those hotels. employees. WE WILL NOT in any like or related manner in- WE WILL NOT direct our musician employees to terfere with, restrain, or coerce these musician em- refrain from paying their working dues to Federa- ployees in the exercise of the rights guaranteed cion de Musicos de Puerto Rico, Local 468, Ameri- them by Section 7 of the Act. can Federation of Musicians, AFL-CIO. WE WILL NOT in any like or related manner in- PUERTO RICO HOTEL ASSOCIATION terfere with, restrain, or coerce our musician em- ployees in the exercise of the rights guaranteed APPENDIX B them by Section 7 of the National Labor Relations Act, as amended. NOTICE To EMPLOYEES POSTED BY ORDER OF THE HILTON INTERNATIONAL COMPANY D/B/A NATIONAL LABOR RELATIONS BOARD CARIBE HILTON HOTEL An Agency of the United States Government APPENDIX D WE WILL NOT refuse to bargain collectively with Federation de Musicos de Puerto Rico, Local 468, NOTICE To EMPLOYEES American Federation of Musicians, AFL-CIO, by POSTED BY ORDER OF THE withdrawing recognition from it as the exclusive NATIONAL LABOR RELATIONS BOARD representative for purposes of collective bargaining An Agency of the United States Government of the musicians who are our employees or by at- tempting to withdraw during negotiations from the WE WILL NOT use personal service contract multiemployer bargaining unit in which we are rep- forms in which our musician employees are pur- resented by the Puerto Rico Hotel Association. ported to be employees of their leaders and not our WE WILL NOT use personal service contract employees. forms whereby our musician employees are purport- WE WILL NOT in any like or related manner in- ed not to be our employees. terfere with, restrain, or coerce our musician em- WE WILL NOT in any like or related manner in- ployees in the exercise of the rights guaranteed terfere with, restrain, or coerce our musician em- them in Section 7 of the National Labor Relations ployees in the exercise of the rights guaranteed Act, as amended. them by Section 7 of the National Labor Relations Act, as amended. CONDADO HOLIDAY INN PUERTO RICO HOTEL ASSOCIATION 455 APPENDIX A WE WILL, upon request by the above-named Union, sign the collective-bargaining agreements NOTICE To EMPLOYEES agreed upon between the Union and the Association POSTED BY ORDER OF THE and effective as of April 20, 1979. NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government SAN JUAN HOTEL CORPORATION, D/B/A EL SAN JUAN HOTEL AND EL CONQUISTA- WE WILL NOT require Federacion de Musicos de DOR HOTEL; THE PUERTO Rico HOTEL Puerto Rico, Local 468, American Federation of CORPORATION D/B/A THE PALACE HOTEL Musicians, AFL-CIO, to state, in writing or other- wise, that steady engagement musicians employed APPENDIX C by Class AA hotels in the Commonwealth of Puerto Rico are not employees entitled to the rights NOTICE To EMPLOYEES guaranteed under Section 7 of the National Labor POSTED BY ORDER OF THE Relations Act, as amended. NATIONAL LABOR RELATIONS BOARD WE WILL NOT promote the use of personal serv- An Agency of the United States Government ice contract forms whereby these hotels purport to treat their musician employees as employees of their WE WILL NOT use personal service contract leaders as it has been found by the National Labor forms in which our musician employees are pur- Relations Board that these musicians are employees ported to be employees of their leaders and not our of those hotels. employees. WE WILL NOT in any like or related manner in- WE WILL NOT direct our musician employees to terfere with, restrain, or coerce these musician em- refrain from paying their working dues to Federa- ployees in the exercise of the rights guaranteed cion de Musicos de Puerto Rico, Local 468, Ameri- them by Section 7 of the Act. can Federation of Musicians, AFL-CIO. WE WILL NOT in any like or related manner in- PUERTO RICO HOTEL ASSOCIATION terfere with, restrain, or coerce our musician em- ployees in the exercise of the rights guaranteed APPENDIX B them by Section 7 of the National Labor Relations Act, as amended. NOTICE To EMPLOYEES POSTED BY ORDER OF THE HILTON INTERNATIONAL COMPANY D/B/A NATIONAL LABOR RELATIONS BOARD CARIBE HILTON HOTEL An Agency of the United States Government APPENDIX D WE WILL NOT refuse to bargain collectively with Federation de Musicos de Puerto Rico, Local 468, NOTICE To EMPLOYEES American Federation of Musicians, AFL-CIO, by POSTED BY ORDER OF THE withdrawing recognition from it as the exclusive NATIONAL LABOR RELATIONS BOARD representative for purposes of collective bargaining A n Agency of the United States Government of the musicians who are our employees or by at- tempting to withdraw during negotiations from the WE WILL NOT use personal service contract multiemployer bargaining unit in which we are rep- forms in which our musician employees are pur- resented by the Puerto Rico Hotel Association. ported to be employees of their leaders and not our WE WILL NOT use personal service contract employees. forms whereby our musician employees are purport- WE WILL NOT in any like or related manner in- ed not to be our employees. terfere with, restrain, or coerce our musician em- WE WILL NOT in any like or related manner in- ployees in the exercise of the rights guaranteed terfere with, restrain, or coerce our musician em- them in Section 7 of the National Labor Relations ployees in the exercise of the rights guaranteed Act, as amended. them by Section 7 of the National Labor Relations Act, as amended. CONDADO HOLIDAY INN PUERTO RICO HOTEL ASSOCIATION 455 APPENDIX A WE WILL, upon request by the above-named Union, sign the collective-bargaining agreements NOTICE To EMPLOYEES agreed upon between the Union and the Association POSTED BY ORDER OF THE and effective as of April 20, 1979. NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government SAN JUAN HOTEL CORPORATION, D/B/A EL SAN JUAN HOTEL AND EL CONQUISTA- WE WILL NOT require Federacion de Musicos de DOR HOTEL; THE PUERTO Rico HOTEL Puerto Rico, Local 468, American Federation of CORPORATION D/B/A THE PALACE HOTEL Musicians, AFL-CIO, to state, in writing or other- wise, that steady engagement musicians employed APPENDIX C by Class AA hotels in the Commonwealth of Puerto Rico are not employees entitled to the rights NOTICE To EMPLOYEES guaranteed under Section 7 of the National Labor POSTED BY ORDER OF THE Relations Act, as amended. NATIONAL LABOR RELATIONS BOARD WE WILL NOT promote the use of personal serv- An Agency of the United States Government ice contract forms whereby these hotels purport to treat their musician employees as employees of their WE WILL NOT use personal service contract leaders as it has been found by the National Labor forms in which our musician employees are pur- Relations Board that these musicians are employees ported to be employees of their leaders and not our of those hotels. employees. WE WILL NOT in any like or related manner in- WE WILL NOT direct our musician employees to terfere with, restrain, or coerce these musician em- refrain from paying their working dues to Federa- ployees in the exercise of the rights guaranteed cion de Musicos de Puerto Rico, Local 468, Ameri- them by Section 7 of the Act. can Federation of Musicians, AFL-CIO. WE WILL NOT in any like or related manner in- PUERTO RICO HOTEL ASSOCIATION terfere with, restrain, or coerce our musician em- ployees in the exercise of the rights guaranteed APPENDIX B them by Section 7 of the National Labor Relations Act, as amended. NOTICE To EMPLOYEES POSTED BY ORDER OF THE HILTON INTERNATIONAL COMPANY D/B/A NATIONAL LABOR RELATIONS BOARD CARIBE HILTON HOTEL An Agency of the United States Government APPENDIX D WE WILL NOT refuse to bargain collectively with Federation de Musicos de Puerto Rico, Local 468, NOTICE To EMPLOYEES American Federation of Musicians, AFL-CIO, by POSTED BY ORDER OF THE withdrawing recognition from it as the exclusive NATIONAL LABOR RELATIONS BOARD representative for purposes of collective bargaining An Agency of the United States Government of the musicians who are our employees or by at- tempting to withdraw during negotiations from the WE WILL NOT use personal service contract multiemployer bargaining unit in which we are rep- forms in which our musician employees are pur- resented by the Puerto Rico Hotel Association. ported to be employees of their leaders and not our WE WILL NOT use personal service contract employees. forms whereby our musician employees are purport- WE WILL NOT in any like or related manner in- ed not to be our employees. terfere with, restrain, or coerce our musician em- WE WILL NOT in any like or related manner in- ployees in the exercise of the rights guaranteed terfere with, restrain, or coerce our musician em- them in Section 7 of the National Labor Relations ployees in the exercise of the rights guaranteed Act, as amended. them by Section 7 of the National Labor Relations Act, as amended. CONDADO HOLIDAY INN PUERTO RICO HOTEL ASSOCIATION 455 APPENDIX A WE WILL, upon request by the above-named Union, sign the collective-bargaining agreements NOTICE To EMPLOYEES agreed upon between the Union and the Association POSTED BY ORDER OF THE and effective as of April 20, 1979. NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government SAN JUAN HOTEL CORPORATION, D/B/A EL SAN JUAN HOTEL AND EL CONQUISTA- WE WILL NOT require Federacion de Musicos de DOR HOTEL; THE PUERTO Rico HOTEL Puerto Rico, Local 468, American Federation of CORPORATION D/B/A THE PALACE HOTEL Musicians, AFL-CIO, to state, in writing or other- wise, that steady engagement musicians employed APPENDIX C by Class AA hotels in the Commonwealth of Puerto Rico are not employees entitled to the rights NOTICE To EMPLOYEES guaranteed under Section 7 of the National Labor POSTED BY ORDER OF THE Relations Act, as amended. NATIONAL LABOR RELATIONS BOARD WE WILL NOT promote the use of personal serv- An Agency of the United States Government ice contract forms whereby these hotels purport to treat their musician employees as employees of their WE WILL NOT use personal service contract leaders as it has been found by the National Labor forms in which our musician employees are pur- Relations Board that these musicians are employees ported to be employees of their leaders and not our of those hotels. employees. WE WILL NOT in any like or related manner in- WE WILL NOT direct our musician employees to terfere with, restrain, or coerce these musician em- refrain from paying their working dues to Federa- ployees in the exercise of the rights guaranteed cion de Musicos de Puerto Rico, Local 468, Ameri- them by Section 7 of the Act. can Federation of Musicians, AFL-CIO. WE WILL NOT in any like or related manner in- PUERTO RICO HOTEL ASSOCIATION terfere with, restrain, or coerce our musician em- ployees in the exercise of the rights guaranteed APPENDIX B them by Section 7 of the National Labor Relations Act, as amended. NOTICE To EMPLOYEES POSTED BY ORDER OF THE HILTON INTERNATIONAL COMPANY D/B/A NATIONAL LABOR RELATIONS BOARD CARIBE HILTON HOTEL An Agency of the United States Government APPENDIX D WE WILL NOT refuse to bargain collectively with Federation de Musicos de Puerto Rico, Local 468, NOTICE To EMPLOYEES American Federation of Musicians, AFL-CIO, by POSTED BY ORDER OF THE withdrawing recognition from it as the exclusive NATIONAL LABOR RELATIONS BOARD representative for purposes of collective bargaining An Agency of the United States Government of the musicians who are our employees or by at- tempting to withdraw during negotiations from the WE WILL NOT use personal service contract multiemployer bargaining unit in which we are rep- forms in which our musician employees are pur- resented by the Puerto Rico Hotel Association. ported to be employees of their leaders and not our WE WILL NOT use personal service contract employees. forms whereby our musician employees are purport- WE WILL NOT in any like or related manner in- ed not to be our employees. terfere with, restrain, or coerce our musician em- WE WILL NOT in any like or related manner in- ployees in the exercise of the rights guaranteed terfere with, restrain, or coerce our musician em- them in Section 7 of the National Labor Relations ployees in the exercise of the rights guaranteed Act, as amended. them by Section 7 of the National Labor Relations Act, as amended. CONDADO HOLIDAY INN PUERTO RICO HOTEL ASSOCIATION 455 APPENDIX A WE WILL, upon request by the above-named Union, sign the collective-bargaining agreements NOTICE To EMPLOYEES agreed upon between the Union and the Association POSTED BY ORDER OF THE and effective as of April 20, 1979. NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government SAN JUAN HOTEL CORPORATION, D/B/A EL SAN JUAN HOTEL AND EL CONQUISTA- WE WILL NOT require Federacion de Musicos de DOR HOTEL; THE PUERTO Rico HOTEL Puerto Rico, Local 468, American Federation of CORPORATION D/B/A THE PALACE HOTEL Musicians, AFL-CIO, to state, in writing or other- wise, that steady engagement musicians employed APPENDIX C by Class AA hotels in the Commonwealth of Puerto Rico are not employees entitled to the rights NOTICE To EMPLOYEES guaranteed under Section 7 of the National Labor POSTED BY ORDER OF THE Relations Act, as amended. NATIONAL LABOR RELATIONS BOARD WE WILL NOT promote the use of personal serv- An Agency of the United States Government ice contract forms whereby these hotels purport to treat their musician employees as employees of their WE WILL NOT use personal service contract leaders as it has been found by the National Labor forms in which our musician employees are pur- Relations Board that these musicians are employees ported to be employees of their leaders and not our of those hotels. employees. WE WILL NOT in any like or related manner in- WE WILL NOT direct our musician employees to terfere with, restrain, or coerce these musician em- refrain from paying their working dues to Federa- ployees in the exercise of the rights guaranteed cion de Musicos de Puerto Rico, Local 468, Ameri- them by Section 7 of the Act. can Federation of Musicians, AFL-CIO. WE WILL NOT in any like or related manner in- PUERTO RICO HOTEL ASSOCIATION terfere with, restrain, or coerce our musician em- ployees in the exercise of the rights guaranteed APPENDIX B them by Section 7 of the National Labor Relations Act, as amended. NOTICE To EMPLOYEES POSTED BY ORDER OF THE HILTON INTERNATIONAL COMPANY D/B/A NATIONAL LABOR RELATIONS BOARD CARIBE HILTON HOTEL An Agency of the United States Government APPENDIX D WE WILL NOT refuse to bargain collectively with Federation de Musicos de Puerto Rico, Local 468, NOTICE To EMPLOYEES American Federation of Musicians, AFL-CIO, by POSTED BY ORDER OF THE withdrawing recognition from it as the exclusive NATIONAL LABOR RELATIONS BOARD representative for purposes of collective bargaining An Agency of the United States Government of the musicians who are our employees or by at- tempting to withdraw during negotiations from the WE WILL NOT use personal service contract multiemployer bargaining unit in which we are rep- forms in which our musician employees are pur- resented by the Puerto Rico Hotel Association. ported to be employees of their leaders and not our WE WILL NOT use personal service contract employees. forms whereby our musician employees are purport- WE WILL NOT in any like or related manner in- ed not to be our employees. terfere with, restrain, or coerce our musician em- WE WILL NOT in any like or related manner in- ployees in the exercise of the rights guaranteed terfere with, restrain, or coerce our musician em- them in Section 7 of the National Labor Relations ployees in the exercise of the rights guaranteed Act, as amended. them by Section 7 of the National Labor Relations Act, as amended. CONDADO HOLIDAY INN