American Federation of Musicians

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 798 (N.L.R.B. 1967)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Musicians of the
United States and Canada , AFL-CIO and
Don Glasser and National Association of
Orchestra Leaders (George Doerner) and
National Association of Orchestra Leaders
(Don Glasser)
American Federation of Musicians of the
United States and Canada, AFL-CIO and
Chattanooga Musical Society Local 80,
American Federation of Musicians of the
United States and Canada , AFL-CIO and
National Association of Orchestra Leaders
(George Doerner). Cases 2-CB-4259,
2-C B-4300, 2-C B-4301, and 2-C B-4344.
June 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 27, 1966, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent, American
Federation of Musicians of the United States and
Canada, AFL-CIO, herein called the Federation,
had engaged in and was engaging in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondents had not
engaged in certain unfair labor practices alleged in
the complaint and recommended that the complaint
be dismissed with respect to these allegations.
Thereafter, the Respondents, General Counsel, and
the Charging Parties filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , American
Federation of Musicians of the United States and
Canada, AFL-CIO, New York, New York, its
officers, agents, and representatives , shall take the
action set forth in the Trial Examiner's
Recommended Order.
I Chairman McCulloch and Member Zagoria find that the
Respondent , Chattanooga Musical Society Local 80, American
Federation of Musicians of the the United States and Canada,
AFL-CIO , herein called Local 80, violated Section 8 ( b)(2) and
(1)(A) of the Act by filing a charge under the unamended article
16, section 4, of the Federation bylaws against Orchestra Leader
George Doerner for employing a musician who was not carrying a
union card Local 17, international Union ofOperatingEngineers,
AFL-CIO (Vogtlt & Sons Construction Corp), 143 NLRB 29,
34-37, and cf Ott, Chemical and Atomic Workers International
Union, AFL-CIO, etc (United Nuclear Corporation, Fuel
Division), 152 NLRB 436, 438 For the reasons given by him they
agree with the Trial Examiner , however, that it would not
effectuate the purposes of the Act to issue a remedial order with
respect to this violation Member Fanning would find, in view of
all the circumstances of this case , that the mere filing of the
charge by Local 80 was not an attempt to cause discrimination
within the meaning of the Act and would , accordingly , dismiss
this aspect of the complaint
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner : This proceeding,
heard at New York City on July 7, 1966 , pursuant to
various charges filed in June and October 1965 and
February 1966, and a consolidated complaint issued
May 23, 1966, presents questions ( 1) whether Respondent
American Federation of Musicians (herein called the
Federation ) violated Section 8 (b)(1)(A) and (2) of the Act by
maintaining and enforcing provisions in its bylaws which
require orchestra leaders to employ only Federation
members in good standing, and which prohibit members of
the Federation from playing with nonmembers;
(2) whether the Federation violated those statutory
provisions by processing charges filed by its member
locals against certain orchestra leaders for alleged
violations of those bylaws ; and (3 ) whether one of those
locals (Respondent Chattanooga Musical Society Local 80,
herein called Local 80 ) violated the same statutory
provisions by filing such a charge against an orchestra
leader.
Upon the entire record and after due consideration of
the briefs filed by each of the parties , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS AND THE LABOR
ORGANIZATIONS INVOLVED
The parties stipulated for purposes of this case, and I
find, that Don Glasser and George Doerner, orchestra
leaders, are employers within the meaning of the Act; each
of them performs musical and related services valued in
excess of $50,000 annually, in States other than that in
which he maintains his office and place of business; each
of them is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; and it would
effectuate the policies of the Act for the National Labor
Relations Board to assert jurisdiction in this case. The
165 NLRB No. 110
AMERICAN FEDERATION OF MUSICIANS
pleadings establish , and I find, that the Federation and
Local 80 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Bylaws and Practices of the Federation
At the time of the events in question (and until amended
within 10 days before the hearing in this case), article 16 of
the bylaws of the Federation provided in pertinent part as
follows:
Section 3. Leaders of orchestras or bands playing
traveling engagments shall only employ members who
are in good standing in the Federation. Any person
performing with an orchestra is prohibited from using
any kind of contraption or device that lends
background rhythm to the rendition of an orchestra,
unless he or she holds a membership card in the
American Federation of Musicians. A fine of not less
than $10.00 nor more than $500.00 shall be imposed
for each violation.
Section 4. A member to be in good standing must
produce a membership card or receipt showing
payment of the current quarterly dues in the local in
which he holds membership. If a member cannot
produce a membership card or a receipt for the
current quarterly dues, he must in addition to his
arrearage in dues pay a fee of $5.00 to place himself in
good standing. Leaders of traveling orchestras or
bands shall be responsible for failure of sidemen to
abide by this law and shall be fined $10.00 for each
violation thereof.
At the 69th Annual Convention of the Federation, held in
Las Vegas, Nevada, on or about June 27, 1966, the
foregoing sections were amended in pertinent part, by
deleting the last sentence of section 4, and by adding to
section 3 the following: "This by-law shall not be
applicable where the leader is an employer subject to the
jurisdiction of the National Labor Relations Board."
At all times relevant herein, article 13, section 5, of the-
bylaws (not amended at the time of the amendments to
article 16) provided in pertinent part as follows:
A member of the Federation cannot play with
suspended or expelled members or with non-members
in the jurisdiction of a local or of the Federation on
competitive engagements unless it be with the
consent of the Federation or in cases wherein the laws
of the Federation provide otherwise.
The penalties prescribed by the bylaws may be invoked
by the executive board of the Federation following
procedures set forth in the bylaws. Upon the filing of a
written charge with the secretary of the Federation, a
clerical employee will acknowledge receipt of the charge,
and prepare an index card and case folder. Another
clerical employee will thereupon reproduce the charge and
forward it to the party charged, together with a form letter
over the signature of the secretary advising the party
charged that he has 14 days in which to reply, and that
failure to reply may result in disciplinary action by default.
Provision is further made for written rebuttal by the party
filing the charge, and written sur-rebuttal by the party
charged. When the reply, rebuttal, and sur-rebuttal have
i The minutes of the executive board meeting for that date
recite that "Counsel Kaiser reports on pending litigations in
which the Federation is involved," and the next item noted is the
vote to dismiss the charge against Glasser See Resp Exh 3, p
799
been received (or the time allotted therefore has expired)
the secretary's office forwards copies of the file to each of
the nine members of the executive board. Each board
member votes whether to sustain or dismiss the charge,
and the ultimate decision is made by majority vote. On
occasion, the board may discuss the cases at a meeting
rather than vote by mail. The executive board handles over
1,000 charges a year. It issues no "opinions" or statements
of its reasons for sustaining or dismissing charges, but
records merely its result.
B. The Charges against Glasser and Doerner
1. The "Hub Ballroom" charges against Glasser
In February 1965, Orchestra Leader Don Glasser and
his orchestra were playing at the Hub Ballroom in
Edelstein, Illinois, when a representative of the Peoria,
Illinois, local of the Federation "checked the cards" of
Glasser's group (i.e., ascertained whether or not the
musicians in the orchestra were carrying union cards), and
reported to Glasser that "four of your boys do not have
their cards on them." A short time later the Peoria local
filed charges against Glasser under article 16, section 4, of
the bylaws quoted above, and the Federation duly served
the charge on Glasser in June 1965. The secretary of the
Federation in the form letter sent Glasser stated in part:
You are directed to reply within fourteen (14) days to
this office. Failure to reply may result in disciplinary
action against you by default.
In Glasser's reply, in addition to raising other defenses, he
noted that he had been advised that "as an employer I
cannot insist that a nonmember musician join the Union
immediately without a certain waiting period," and he
requested "guidance" in view of the "dilemma" which
placed him "in conflict with the [Federation] rules and
Federal law."
On August 19, 1965, the executive board of the
Federation dismissed the charge against Glasser, and he
was so notified on September 22.
2. The Concordia charge against Glasser
In May 1965, while playing an engagement at a Moose
club at Concordia, Kansas, Glasser hired a local substitute
for his bass player, who had been taken ill. The susbtitute
was not a member in good standing of the Salina local,
which had jurisdiction in the area, and that local filed a
charge with the Federation alleging that Glasser had
violated article 16. sections 3 and 4, of the bylaws. This
charge was duly served on Glasser in the same manner as
that in the Hub Ballroom case, and Glasser in reply again
adverted to the conflict between union rules and Federal
law. The executive board of the Federation dismissed the
charge on January 31, 1966, and so notified Glasser the
following day. I
3. The Salina charge against Doerner
In November 1964, Orchestra Leader George Doerner
and musicians employed by him fulfilled an engagement to
play at the Noncommissioned Officers Club, Schilling Air
Force Base (herein called NCO), in Salina, Kansas.
15 The record does not disclose whether the "pending
litigations" included the instant proceeding in which Glasser's
charges had already been filed
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, the Salina local filed charges with the
Federation against Doerner and his orchestra, alleging that
the NCO was on the "unfair list" of the Federation, and
also that Doerner's orchestra included two men who were
not in good standing with the Federation. The Federation
served these charges upon Doerner in the same manner in
which it served the charges on Glasser described above. In
Doerner's reply he, like Glasser, referred to the conflict
between union rules and Federal law. On January 25,
1966, the executive board of the Federation dismissed the
charge, and the secretary of the Federation so advised
Doerner on February 1.2
4. The Chattanooga charge against Doerner
In September 1965, while Doerner and his orchestra
were playing at the Hotel Patten in Chattanooga,
Tennessee, one Watkins, the secretary of Local 80,
obtained Doerner's permission to see the union cards of
the men in Doerner's employ there. Watkins later
informed Doerner that one of the men did not have a card
with him. Local 80 filed a charge with the Federation on
October 29, 1965, alleging, inter alia, that Doerner had
violated article 16, section 4, of the bylaws by employing a
musician who was not carrying a union card. The secretary
of the Federation served this charge on Doerner on
February 1, 1966, with the customary form letter gving
Doerner 14 days to answer. This, apparently by
coincidence, was the same date on which the secretary
had advised Doerner of the dismissal of the Salina charges
against him. Doerner filed no response to the Local 80
charges. Nevertheless, on April 26, 1966, the secretary of
the Feederation notified Doerner that the executive board
had dismissed those charges.
C. Contentions of the Parties
Section 8(b)(2) provides that a union may not "attempt to
cause" an employer to discriminate against employees or
applicants for employment because of their
nonmembership in a union. Section 8(b)(1)(A) provides that
a union may not restrain or coerce employees in their right
to refrain from union activities, but a proviso to that
section recites that nothing therein impairs the right of a
union to prescribe its own rules for the acquisition or
retention of membership. General Counsel contends that,
by processing the charges against Glasser and Doerner,
the Federation attempted to cause them, as employers, to
discriminate against nonmembers; Local 80, by bringing a
charge against Doerner, similarly violated the Act; by
maintaining bylaws requiring union members acting as
employers to refuse employment to nonmembers, the
Federation violated the same statutory provision; and in
each of the foregoing respects, the Federation (and Local
80 in Doerner's Chattanooga case) also violated Section
8(b)(1)(A).
Counsel for the Charging Parties (Glasser and an entity
identified as National Association of Orchestra Leaders)
adopts all of General Counsel's contentions, and argues
that the Federation has further violated Section 8(b)(1)(A)
of the Act by maintaining and enforcing against its
members employees (rather than merely as orchestra
2 The minutes of the executive board establish that on
January 24, 1966, it "decided to postpone action" on this case
Then on the following day the minutes recite as follows (Resp
Exh 3, pp 13-14)
Counsel Kaiser explains the status of certain NLRB
leaders or employers) bylaws penalizing them for working
with nonmembers of the Federation.
Respondents contend that the bylaws of the Federation
have not been enforced where to do so would violate the
Act; the mere existence of the bylaws does not establish a
violation; the mere processing of a charge which is
eventually dismissed does not constitute an "attempt to
cause" discrimination; in any event the 1966 amendments
to the Federation's bylaws render any further relief
unnecessary; and the application of the bylaws to penalize
employees (as distinguished from employers) who work
with nonmembers does not violate the Act.
D. Discussion and Conclusions
1. The charges against Glasser and Doerner
Analysis may fairly begin with the self-evident
proposition that as Glasser and Doerner are employers
subject to the Act, they would violate Section 8(a)(3) and
(1) if they refused to hire an employee because of his lack
of membership in the Federation. Equally self-evident is
the proposition that if the Federation attempted to cause
such discrimination, it would violate Section 8(b)(2) and
(1)(A) of the Act. In the ordinary case, a union which
attempts to cause an employer to discriminate does so by
trying to enforce an invalid union-security agreement
which it has with the employer, or by threatening the
employer with traditional economic weapons if he fails to
capitulate to the demand for discrimination. In the instant
case, however, the Union's "hold" over the employer
arises from the unusual circumstance that the employer is
himself a member of the Union and subject to its discipline
such as fines, or suspension, or expulsion. The theory of
the complaint is that the Federation, by processing
charges against employer-members, has threatened them
with reprisal for employing nonmembers, and that this is
an attempt to cause them to discriminate against
nonmembers. I cannot accept this analysis for reasons
indicated below.
General Counsel conceded that although Glasser and
Doerner are employers subject to the Act, there may well
be other orchestra leaders subject to the bylaws of the
Federation who are not within the jurisdiction of the
National Labor Relations Board. Given this circumstance,
the executive board of the Federation could lawfully
impose traditional union sanctions on leaders not subject
to National Labor Relations Board jurisdiction. And as the
executive board is the machinery created by the
Federation for passing, in a quasi-judicial capacity, on
charges against members, its mere processing or
consideration of charges filed with it does not of itself
constitute an "attempt to cause" discrimination, but
merely a passing on the issues brought before it. The
situation, as a legal matter, would be no different if the
bylaws instead of vesting in the executive board the power
to process and decide such charges had vested the power
in an outsider-whether a public official, an arbitrator, or
(to take an extreme and improbable case) the counsel for
Charging Parties. Such a person could be empowered to
decide the merits of the charges against Glasser, Doerner,
and also against others not subject to the Board. In
pending cases There is a thorough discussion with counsel
on this matter
The Board reverts to consideration of Case 83, 1965-66
[the Salina-Doerner case] On motion made and passed, it is
decided that the charges be dismissed.
AMERICAN FEDERATION OF MUSICIANS
processing such cases (even if he decided them adversely
to Glasser and Doerner, and a fortiori where as here the
decisions are in their favor), he would not be violating the
Act by attempting to cause discrimination; such an
"attempt to cause" would arise only when and if the
Federation sought to enforce a fine or other penalty upon
the employer.3 I conclude, therefore, that the mere
decisional act of processing and finding merit (and a
fortiori, lack of merit) in a charge does not constitute an
"attempt to cause" discrimination on the part of the
decisional body. I conclude that the Federation by merely
creating such a decisional body with power to find merit in
such a charge is not guilty of an "attempt to cause"
discrimination, for such a decisional body is needed to
pass on charges which do not involve persons subject to
the Board.
General Counsel suggests that during the pendency of
the charge (i.e., after it is served upon the orchestra leader
and before it is dismissed), the effect of the charge is to
inhibit the employer from hiring nonunion men, and that
this impact constitutes a violation of the Act. As I view the
matter, however, the impact arises out of the existence of
the bylaws rather than the filing of the charge. That is to
say, even if there were no bylaws penalizing the hiring of
nonunion men, a charge could be filed and processed (and
presumably ultimately dismissed) alleging that an
orchestra leader be penalized for hiring nonunion men.
The processing of such a charge would not constitute an
"attempt to cause" discrimination, even though the
technical possibility existed that the executive board could
(erroneously) find merit in the charge.
Approaching these issues from a slightly different angle
but with similar result, we must remember that Glasser
and Doerner voluntarily joined the Federation and
submitted themselves to its bylaws and to its procedures.
Within that framework, they may be subjected to
procedures against which they can interpose defenses. If
the ultimate decision is adverse to them, that fact and its
consequences may place the Federation in violation of the
Act. But no statutory rights are invaded by the mere
processing of the charge, a matter to which they are
subjected by virtue of their membership in the Federation,
just as any citizen may be put to his defense in any court.
Cf. Myers, et al. v. Bethlehem Shipbuilding Corp.,303 U.S.
41, 51-52, where the Court observed: "Lawsuits also often
prove to have been groundless; but no way has been
discovered of relieving a defendant from the necessity of a
trial to establish the fact."
Perhaps all the foregoing discussion could be subsumed
under the proposition that if there is illegality in the
bylaws, this is a matter to be dealt with in a direct attack
on the bylaws (such an attack is here made and is
discussed below), but that whatever illegality may be
found there, it is committed by the Federation acting in a
quasi-legislative capacity, and no illegality inheres in the
quasi-judical aspect of the Federation's action,
particularly in the light of the concession that such bylaws
could be applied in situations not covered by the Act.
The complaint also alleged that Local 80 attempted to
cause discrimination by filing a charge against Doerner.
Assuming, arguendo, that this allegation is technically
correct, I do not believe it would effectuate the policies of
a "Processing" a case before it actually reaches the members
of the executive board for decision is purely clerical in nature A
801
the Act under all the circumstances of this case to issue an
order against Local 80. If the bylaws under which Local 80
sought to proceed are invalid, the proper responsible
target of the Board should be the Federation. No purpose
would be served by adding orders against individual locals.
Also, such locals should not be placed in fear of contempt
citations if they "guess wrong" in determining whether an
orchestra leader is subject to the Board. It is enough
protection if the burden of "guessing wrong" is placed on
the International, which has greater facilities for
ascertaining the facts and law in that regard. Finally, it
may be noted that the bylaw under which Local 80 filed its
charges has been significantly amended. Issuance of an
order against this local under these circumstances would
serve no useful purpose.
2. The bylaws are applied to orchestra leaders
The Federation's bylaws are a part of the contract
between the Federation and each of its members.
International Association of Machinists, et al. v. Gonzales,
356 U.S. 617, 618-619. Sections 3 and 4, article 16 (before
amendment), and section 5, article 13, of the bylaws, read
in connection with other provisions, subject leaders
(employers) to penalties at the hands of the Federation for
employing or playing with nonunion musicians. The
existence of such provisions in the "contract," widely
publicized and known to all members of the Federation, is
sufficient, standing alone and without evidence of
enforcement, to establish a violation of Section 8(b)(2) and
(1)(A) of the Act. Red Star Express v. N.L.R.B., 196 F.2d 78,
81(C.A. 2).
Shortly before the hearing in this case, the Federation
amended sections 3 and 4, article 16, to make it clear that
the "closed shop" provisions of section 3 would not apply
to an orchestra leader who is "an employer subject to the
jurisdiction of the National Labor Relations Board," and to
eliminate orchestra leaders from the penalties provided in
section 4. This, for future purposes, cures the taint
heretofore existing in those bylaws. Cf. N.L.R.B. v. News
Syndicate Company, Inc., 365 U.S. 695, 700, where the
Court held that a closed-shop provision in bylaws was
cured by a contract providing that only those bylaws were
incorporated which were "not in conflict ... with federal
or state law." Certainly, the more express reference to
Board jurisdiction in the amended bylaw in this case leads
to a similar result. And, contrary to General Counsel and
the Charging Parties, I cannot give less than full credit to
the new bylaws merely because the Federation frankly
adopted them on recommendation of counsel "to avoid
harassment by the authorities administering the Taft-
Hartley and Landrum-Griffin Acts." On the other hand,
such voluntary cessation of illegal conduct does not moot
the case (Walling v. Helmerich & Payne, Inc., 323 U.S. 37,
43), and in any event the provisions of article 13, section 5,
were not amended, so that as to that article, at least, the
Federation cannot "avoid harassment." The provisions of
that section provide that a member cannot "play with" a
nonmember, and would seem to embrace "orchestra
leaders" who "play with" their employees. That section, to
be sure, is circumscribed by a provision permitting
deviation from its restrictions "with the consent of the
Federation" or when "the laws of the Federation provide
charge would be "processed" even if it "were obviously without
merit" such as for "drinking cocoa on a Sunday "
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise," but this falls short of a "savings clause" of the
News Syndicate variety.4
3. The bylaws as applied to members other than orchestra
leaders
The complaint by its terms attacks article 13 of the
bylaws as applied to "members of Respondent
International." General Counsel stated at the hearing that
he intended the complaint to apply only to "member
employers," and that he did not "allege that if a union
fines a member for playing with a nonmember, that that's
a violation of Federal law." The complaint, however, does
not admit of the limitation General Counsel seeks to read
into it. Accordingly, I permitted counsel for the Charging
Parties to develop on the record his theory that the
Federation violated the Act by penalizing member-
employees for working with nonmembers.
Counsel for Respondents, conceding that article 13,
section 5, "has been literally interpreted and enforced
with respect to employee members" (i.e., that employee
members of the Federation are forbidden to play with
nonmembers), argues that the contention of Charging
Parties that this violates the Act "approaches the
frivolous, in light of such decisions as Wisconsin Motor
Corporation, 145 NLRB 1097." Without adopting that
characterization, I agree that the contention must be
rejected under controlling decisions of the Board,
including that in Allis-Chalmers Mfg. Co., 149 NLRB 67,
set aside 358 F.2d 656 (C.A. 7), petition for certification
pending [388 U.S. 175, June 12, 1967.] See also American
Newspaper Publishers Association v. N.L.R.B., 193 F.2d
782, 800-801 (C.A. 7).
CONCLUSIONS OF LAW
1. By promulgating and maintaining bylaws under
which orchestra leaders subject to the National Labor
Relations Act are subject to penalties if they employ or
play with musicians who are not Federation members in
good standing, the Federation has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the
Act.
2. The Federation's executive board in passing upon
and dismissing charges filed against orchestra leaders
under the bylaws of the Federation is not engaging in any
unfair labor practices.
3. Local 80 by filing a charge with the Federation
against Orchestra Leader Doerner has not engaged in any
unfair labor practice which would warrant the issuance of
a remedial order.
4. The Federation insofar as it maintains and enforces
bylaws which penalize employee-members of the
Federation for working with nonmembers is not engaging
in any unfair labor practices within the meaning of the Act.
THE REMEDY
The Federation will be directed to cease and desist from
promulgating or maintaining illegal bylaws, and to notify
its members of their rights and its limitations under the
Act. In my view such notification can best be
accomplished by the Federation' s mailing to each of its
locals and to the National Association of Orchestra
Leaders executed copies of the attached notice marked
"Appendix," and by its publishing the same notice in three
consecutive issues of the "International Musician," the
official publication of the Federation which is distributed
to all members. In furnishing the notice to its locals the
Federation should direct each of them to display the notice
on the local's bulletin board.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this
proceeding, I recommend pursuant to Section 10(c) of the
Act, issuance of the following:
ORDER
Respondent, American Federation of Musicians of the
United States and Canada, AFL-CIO, its officers, agents,
and representatives , shall:
1. Cease and desist from maintaining in force and
effect, and operating under, bylaws which by their terms
are applicable to members of the Federation acting as
employers subject to the jurisdiction of the National Labor
Relations Board if such bylaws provide (a) that such
employers may employ, or play with, only members in
good standing in the Federation, or (b) that such employers
shall be responsible for failure of any of their employees to
produce a current membership card in, or dues receipt
from, a local of the Federation.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon receiving from the Regional Director for
Region 2 copies of the attached notice marked
"Appendix," a publish in three consecutive issues of the
International Musician ,6 mail to the National Association
of Orchestra Leaders, mail to each member of the
Federation's executive board, and mail to each local
affiliated with the Federation with directions to post
promptly for 60 consecutive days on its bulletin board (or
wherever notices to its members are customarily posted),
signed copies of the notice.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'
" Both General Counsel and counsel for the Charging Parties
refer to other articles of the bylaws, notably parts of article 12, as
violating the Act, but no other articles were named in the
complaint, and although the entire bylaws are in evidence, the
other provisions were admitted only insofar as they shed light on
the provisions attacked in the complaint In the light of the attack
in the briefs on other articles of the bylaws , counsel for the
Federation may deem it advisable to propose further amendments
to "avoid [further ] harassment " by those whose duty it is to
enforce Federal law.
s In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
c The penultimate sentence in the notice , referring to posting,
may be omitted from the version published in the International
Musician
] In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF AMERICAN FEDERATION OF
MUSICIANS OF THE UNITED STATES AND CANADA,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
AMERICAN FEDERATION OF MUSICIANS
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
Orchestra Leaders, if engaged in interstate commerce
subject to the jurisdiction of the National Labor Relations
Board, are not subject to bylaws of the Federation which
preclude leaders from employing or playing with
nonmembers.
WE WILL NOT enforce or apply such bylaws to such
orchestra leaders.
AMERICAN FEDERATION OF
MUSICIANS OF THE UNITED
STATES AND CANADA,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
803
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 5th Floor
Squibb Building, 745 Fifth Avenue, New York, New York
10022, Telephone 751-5500, Extension 852.