American Federation of Musicians

National Labor Relations Board - Board Decisions

Sep 30, 1969

178 N.L.R.B. 707 (N.L.R.B. 1969)

AMERICAN FEDERATION OF MUSICIANS
American Federation of Musicians , AFL-CIO; and
Reno Musicians Protective Association 368,
AFL-CIO ( Harrah 's Club, et al.) and National
Association of Orchestra Leaders. Cases
20-CC-771 and 20-CC-773
September 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND ZAGORIA
On June 30, 1969, Trial Examiner Robert L.
Piper issued his Decision, in the above-entitled
proceeding, finding that Respondent had engaged in
the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed
in its entirety. Thereafter, the Charging Party and
.1udy Lynn filed exceptions to the Trial Examiner's
Decision, and General Counsel and the Intervenor,
Harrah's Club, filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Respondents filed an answering brief,
cross-exceptions, and a brief in support of
cross-exceptions
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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,
cross-exceptions and briefs. and the entire record in
these cases, and hereby adopts the finding,,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint be, and it
hereby is, dismissed in its entirety.
'As we agree with the Trial Examiner that the appeals to Judy Lynn,
Gaylord , and Holiday , and George Liberate constituted lawful primary
activity , we find it unnecessary to consider whether these individuals were
employees or independent contractors
TRIAL EXAMINER'S DECISION
STAFEMFNT 01 THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was heard in Reno, Nevada, on November 25,
26. and 27, 1968,1 pursuant to due notice. The
consolidated complaint, which was issued on August 22,
on a charge filed March 5 in Case 771 and a charge filed
March 13 and amended March 14 and May 29 in Case
707
773, alleged in substance that American Federation of
Musicians (hereinafter called AFM) and its Local 368
(hereinafter collectively called Respondents) engaged in
unfair labor practices proscribed by Section 8(b)(4)(i) and
(ii)(B) of the Act by inducing, encouraging and coercing
employees of Judy Lynn, d/b/a The Judy Lynn Show, to
engage in a strike or refusal to perform services. and by
threatening, coercing or restraining Judy Lynn, Ronnie
Gaylord and George Liberace, persons or employers
engaged in commerce or in an industry affecting
commerce, in both instances with an object of forcing or
requiring Lynn and Gaylord to cease doing business with
Harrah's Club and Liberace to cease doing business with
the Ponderosa Hotel Co , both Nevada corporations
engaged in commerce within the meaning of the Act.
Respondents' answer denied the alleged unfair labor
practices. All counsel filed briefs The Intervenor's
unopposed motion to correct the official transcript of
proceedings is hereby granted.'
Upon the entire record in the case and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
1. JURISDICTIONAL IINDINGS
Harrah's Club (hereinafter called Harrah's) is a Nevada
corporation with places of business in Reno and Lake
Tahoe. Nevada, where it is engaged in the operation of
gambling casinos and restaurants. During the past year in
the course and conduct of its operations 1-farrah's received
gross revenue in excess of $500,000 from its gambling
operations and purchased and received goods valued in
excess of $50,000 directly from outside the State of
Nevada The Ponderosa Hotel Co. (hereinafter called the
Ponderosa) is a Nevada corporation with a place of
business in Reno, Nevada, where it is engaged in the
operation of a gambling casino, restaurant, bar and hotel
During the past year in the course and conduct of its
operations the Ponderosa received gross revenue in excess
of S500.000 from its gambling operations and purchased
and received goods valued in excess of S50,000 directly
from outside the State of Nevada. Respondents admit and
I find that Harrah's and the Ponderosa are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Judy Lynn, d/b/a The Judy Lynn Show, is a star
singer, also engaged in the operation of an orchestra or
band which accompanies her They perform at various
hotels, nightclubs, rodeos and other business
establishments throughout the United States. During 1968,
Judy Lynn was a party to a contract with Harrah's
whereby she agreed to perform services valued in excess of
$80,000
Ronnie Gaylord, it memhei of an act called Gaylord
and Holiday, is an entertainer who performs at various
hotels, nightclubs and other business establishments
throughout the United States. During 1968, Gaylord was
a party to a contract with Harrah's whereby he agreed to
perform services valued in excess of $100.000.
George Liberace is the leader of a band or orchestra
which performs at various hotels, nightclubs and other
business establishments throughout the United States
During 1968, Liberate was a party to a contract with the
Ponderosa whereby he agreed to perform services valued
All dates hereinafter refer to 1968 unless otherwise indicated
Transcript errors are hereby noted and i . orrected
178 NLRB No. 115
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in excess of $20,000. The record establishes and I find
that Judy Lynn, Gaylord and Liberace are persons and
employers engaged in commerce or in an industry
affecting commerce within the meaning of Sections 2(6)
and (7) and (8 )(b)(4) of the Act.
ii. THE LABOR ORGANIZATIONS INVOLVED
Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
As a result of a labor dispute , Respondents engaged in
a strike from March I to April, 30 against the various
casinos employing musicians in the" Reno-Tahoe area,
including Harrah ' s and the Ponderosa . As the result of
contracts previously entered into, Judy Lynn and Gaylord
and Holiday were scheduled to appear and appeared at
Harrah' s during the strike , and Liberace was scheduled to
appear at the Ponderosa . Judy Lynn, the members of her
band , Gaylord and Liberate were all members of
Respondent AFM. Respondents, after placing Harrah's
and the Ponderosa on their National Unfair List,
threatened Judy Lynn, the members of her band, and
Gaylord with union disciplinary action and expulsion if
they performed or continued to perform services for
Harrah ' s, threatened Liberace with union disciplinary
action if he performed services for the Ponderosa, and
instituted union disciplinary proceedings against Gaylord,
Judy Lynn and the members of her band for continuing to
perform services for Harrah's.
The issues as framed by the pleadings are (1) whether
the artists or entertainers involved herein are persons or
employers. i.e.. independent contractors ( which would
make their musicians their employees) or employees of the
casinos at which they performed; (2) if the entertainers
herein are independent contractors and employers,
whether Respondents ' threats to them and to their
employees of expulsion and other disciplinary action for
performing services for their contracting clubs, primary
employers with whom Respondents had a labor dispute,
constitute threatening , coercing or restraining such
independent contractors within the meaning of Section
8(b)(4)(ii)( B), and inducing or encouraging their employees
to engage in a strike or a refusal to perform services
within the meaning of Section 8(b)(4)(i)(B) of the Act; and
(3) if such threats occurred , whether they constituted
primary action within the meaning of the proviso to
Section 8 ( b)(4)(B).
B Chronology of Events
The facts in this case are substantially undisputed. On
March I, as the result of a bargaining dispute between the
various casinos employing musicians in the Reno-Tahoe
area and Local 368, Respondents called a strike against
the casinos and placed them on their National Unfair
List. As a result of contracts entered into in 1966 and
1967. Judy Lynn and Gaylord and Holiday were scheduled
to appear at Harrah ' s during the course of the strike. and
Liberate was scheduled to appear at the Ponderosa. The
strike continued until April 30.
Judy Lynn. the members of her band, which varied
from seven to eight, Gaylord and Liberace were all
members of AFM but not of Local 368 In furtherance of
their strike, Respondents by telegrams , letters and written
notices informed each of the above AFM members that
Respondents were on strike against the clubs where they
were scheduled to appear or were appearing , that such
clubs had been placed on AFM ' s National Unfair List,
and threatened them with expulsion from AFM or other
disciplinary action if they performed or continued to
perform services for the struck clubs. Such warnings
included a quotation of or reference to Section 7, of
Article X of Respondents ' By-Laws, which reads:
Whenever any person , persons, organization or
establishment is declared to be on the National Unfair
or Defaulter List by the Federation , members cannot
render services for or with such person , persons,
organization, or for, or in, such establishment. If
members render services for any person , persons,
organization or establishment declared nationally unfair
or in default by the Federation , such action shall
constitute grounds for such members' expulsion from
membership in the Federation and they can only be
reinstated under such conditions as may be imposed
upon them by the International Executive Board.
Thereafter , Respondents , as a result of intra-union
charges, commenced disciplinary proceedings against Judy
Lynn. the members of her band and Gaylord for
continuing to perform services for the struck clubs in
violation of Respondents ' By-Laws. The strike terminated
before Liberace ' s contract services commenced and
accordingly he performed no services during the strike.
Thereafter, the charges in this proceeding were filed.
As noted above , one of the principal issues litigated was
whether the star entertainers involved herein are
independent contractors or employees of the respective
clubs with which they had contracts . If they were
employees of the primary employers with whom
Respondents had a labor dispute, the provisions of Section
8(b)(4) obviously would not apply . The record establishes
clearly that Judy Lynn, d/b/a The Judy Lynn Show, and
Gaylord and Holiday are independent contractors, and
that the musicians accompanying them are their
employees . Judy Lynn is a singing star, primarily country
and western , accompanied by a band of seven or eight
musicians, consisting of guitars , fiddles and a set of
drums. She employs her musicians on a year- round or
permanent basis, paying them an annual salary on a
weekly basis whether or not they are performing , furnishes
them with annual paid vacations, provides their uniforms
costing thousands of dollars, supplies all of the musical
instruments except the fiddles, pays all of their traveling
expenses , files and pays required employer social security
and tax deductions , establishes rules which the members
of the band must observe, and hires and fires at will.
She and the band travel nationally and internationally,
performing at clubs, hotels, rodeos, and the like for short
intervals of time ranging from a single day to
engagements of several weeks, each covered by a contract
negotiated by her business manager or agents. all
requiring the payment to her of thousands of dollars a
week. In addition , she is a recording , radio and TV star,
again customarily accompanied by her band . She also
employs an office manager and a personal secretary and
maintains a permanent office in Las Vegas, Nevada. She
spends thousands of dollars a year on promotional
material to enhance the securing of future contracts Her
contracts are for a fixed period of time and the clubs, et
al., including Harrah ' s, have no power to fire her or any
members of her band. She alone determines the contents
of her act , including the songs to be sung and played.
AMERICAN FEDERATION OF MUSICIANS
Necessarily, as part of the contractual arrangement the
clubs fix the time and site of the performances, and some,
specifically Harrah's, reserve the right to censor
objectionable or so-called "blue" material. As an
entrepreneur, Judy Lynn has annual fixed expenses
substantially in excess of $100,000 and capital investments
in costumes, instruments and varied equipment also
substantially in excess of $100,000.
Gaylord and Holiday are primarily a comedy team,
with some singing and dancing, normally accompanied by
two musicians whom they employ, one on a permanent
year-round basis and the other for each contracted
engagement. They operate in much the same manner as
Judy Lynn. traveling nationally and appearing in clubs
and similar establishments by contract for limited
engagements. They employ a personal manager and a
conductor on a year-round basis and pay all of their
traveling expenses and those of their accompaning
musicians . They also expend large sums for promotional
material and in general exercise the same attributes of an
entrepreneur as found above with respect to Judy Lynn.
Their contracts also call for the payment of thousands of
dollars per week for their services. They too independently
determine the contents of their act, with the single
reservation of the censorship of "blue" material As part
of the contractual arrangement, the clubs necessarily fix
the time and site of their appearances.
Respondents throughout their brief characterized Judy
Lynn and Gaylord and Holiday as "orchestra leaders,"
apparently because of Respondents' reliance upon the
Board's holding in the Reno Musicians case,' involving
the same local and the house bands permanently employed
by the clubs in the Reno-Tahoe area, that the leaders of
such house bands or orchestras were employees of the club
and not independent contractors. The record herein
establishes that Judy Lynn and Gaylord and Holiday are
in no sense band or orchestra leaders as that term is used
in the industry, but are star entertainers who employ
musicians to accompany their acts. Judy Lynn is a singing
star and does not lead or direct the band which
accompanies her songs While she is the employer of the
musicians in the band. this no more makes her a "band
leader" than the clubs which were found to be the
employers of the house bands in the Reno Musicians
case, supra. She is a singer accompanied by musicians,
much like any other singing star, such as Ella Fitzgerald,
Peggy Lee, and Dinah Shore, except that her repertoire is
primarily country and western. Such other singers are
accompanied by musicians customarily employed by the
club,at which they appear rather than by the star. Miss
Lynn's unilateral decision to employ her own musicians in
a specialized field on a permanent basis serves as a
convenience both for her and the contracting clubs, but
does not make her a "band leader" any more than other
star singers. Gaylord and Holiday are primarily a comedy
team, with occasional singing and dancing, employing two
or more musicians to accompany them. Patently they are
not "orchestra" or "'band leaders" as the term is used in
the industry. but are star entertainers accompanied by
music.
The situation with respect to Liberace is not as clear,
inasmuch as there is no question but that he is a band or
orchestra leader as the term is used in the industry.
However, he fronts a traveling name band which works
for many different clubs throughout the year under
'Reno Musicians Protective Union Local 368, AFM, AFL-CIO (Foster
S Edwards ), 170 NLRB No 56 (1968)
709
contracts such as those entered into by Judy Lynn and
Gaylord and Holiday, and employs the same musicians
year after year. although engagement by engagement
instead of on a permanent basis as Judy Lynn and
Gaylord and Holiday. The house bands involved in the
Reno Musicians case, supra. were permanent year-round
employees of the clubs, and their leaders were not
entrepreneurs with substantial expenses and investments,
subject to the risks of loss or profit as the entertainers
herein, including Liberace However, in view of the
Board's decision issued June 11, 1969, involving the same
strike and the same type of star entertainers, including
Gaylord and Holiday, it is unnecessary to determine
whether Liberate was an independent contractor or an
employee for the reasons stated therein.'
The record unquestionably establishes that Respondents
threatened Judy Lynn, the members of her band, Gaylord
and Liberace, all members of AFM, with expulsion or
disciplinary action for performing or continuing to
perform services for a primary employer with whom
Respondents had a labor dispute. Because of the very
recent decision of the Board in the American Guild of
Varied: Artists case, supra, involving the same strike, the
same type of clubs, including Harrah's. the same type of
stars, including Gaylord and Holiday, and substantially
the same type of union threats of disciplinary action, it 'is
unnecessary to engage in an extended discussion of the
applicable law.' In that case, based upon substantially the
same factual situation and issues, the Board found that
the threats of the union were primary action, in aid of the
primary labor dispute between the clubs and Respondents,
within the meaning of the proviso covering such primary
activity, and thus exempt from the proscriptions of
Section 8(h)(4). There, as a result of the same strike
considered herein and in support thereof, the American
Guild of Variety Artists threatened its members, star
entertainers including Gaylord and Holiday appearing at
the Reno-Tahoe clubs, including Harrah's, with
disciplinary action for not honoring Respondents' picket
lines by performing or continuing to perform at the struck
clubs, allegedly in violation of Section 8(b)(4)(ii)(B). There
is no difference in substance between the activity
considered there and that considered here.
The Board, primarily in reliance upon the decisions of
the Supreme Court in the General Electric and Carrier
cases,' stated:
We find that Respondent engaged solely in permissible
primary activity with respect to the pressures it exerted
on all of these entertainers.
In that connection, the Board observed that it was
unnecessary to decide whether the star entertainers
involved were employees within the meaning of the Act as
contended by the respondent therein.
After finding that the union therein threatened its
member stars with disciplinary action if they continued to
perform at the struck clubs, just as herein, that the work
of the stars there involved "not only contributed `to the
operations which the strike was endeavoring to halt' but in
fact was directly related to the normal operations of the
'American Guild of Variety Artists, AFL-CIO ( Harrah 's Club, et at).
176 NLRB No 77 (1969).
'It is well established that decisions of the Board are binding upon its
Trial Examiners , dust as decisions of the Supreme Court are binding upon
the Board
`Local 761, WE v. N.L.R B [General Electric Company [. 366 U S
677 (1961), United Steelworkers v N L R B [Carrier Corporation/, 376
U.S. 492 (1964)
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casinos," because such shows were "an important means
of enticing the public to the clubs in the hope and
reasonable expectation that .. they can be induced to try
their luck in the casinos," the primary business of the
establishments, and that such work was "inextricably
involved with and necessary to the normal operation of
the casinos," the Board in reliance upon the decisions of
the Supreme Court in General Eleciric and Carrier,
supra, held that inducing such action "only at the situs of
the dispute by persons `contributing to the operations
which the strike was endeavoring to halt"' constituted
traditional primary activity outside the scope of Section
8(b)(4)
The Board further observed.
We reject the apparent view of the Trial Examiner
and theory of the General Counsel that, because the
star entertainers are independent contractors, rather
than employees, appeals to them to honor a picket line
lose their character as permissible primary activity
when accompanied by threats of internal disciplinary
action by the union of which they are members.
The finding of primary activity necessarily applies to the
employees of such independent contractors
Accordingly. I conclude and find that the General
Counsel has failed to sustain his burden of proving that
Respondents have induced or encouraged employees in
violation of Section 8(b)(4)(i)(B), or threatened, coerced,
or restrained persons or employers in violation of Section
8(h)(4)(ii)(B).
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONC f USIONS Oi. LAW
1. Harrah's and the Ponderosa are employers engaged
in commerce within the meaning of the Act
2. Judy Lynn and Ronnie Gaylord are persons and
employers engaged in commerce or in an industry
affecting commerce within the meaning of Sections 2(6)
and (7) and 8(b)(4) of the Act.
3 Respondents are labor organizations within the
meaning of the Act.
4. Respondents have not, as alleged in the complaint.
induced or encouraged employees to engage in a strike or
a refusal to perform services within the meaning of
Section 8(b)(4)(i)(B) of the Act. or threatened, coerced, or
restrained persons or employers within the meaning of
Section 8(b)(4)(ii)(B) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue
the following.
RECOMMENDED ORDER
It is hereby ordered that the complaint herein he, and it
hereby is, dismissed
'United Steelworkers v N L R B. [Carrier Corporation 1 . 376 U S 492.
4990964)