Associated Musicians of Greater New York

National Labor Relations Board - Board Decisions

Dec 29, 1954

110 N.L.R.B. 2166 (N.L.R.B. 1954)

2166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than to members of Local 113 , Venetian Blind Workers affili-
ated with the Upholsterers ' International Union of North America,
AFL.
2. Within ten (10 ) days from the date of this Decision and Deter-
mination of Dispute, the Respondent Carpenters ' District Council,
shall notify the Regional Director for the Fourteenth Region, in
writing, as to what steps the Respondent has taken to comply with
the Decision and Determination of Dispute.
ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN
FEDERATION OF MUSICIANS, AFL, AND AL MANUTI, ITS AGENT and.
GOTHAM BROADCASTING CORPORATION. Case No. 2-CC-294.
December 29, 1954
Decision and Order
On July 29, 1954, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions and a supporting brief. The Charging Party, hereafter
called Gotham, filed a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and additions :
The Trial Examiner found that the Respondents, by the picketing
at the Yankee Stadium and the Eastern Parkway Rink, in connection
with their dispute with Gotham, violated Section 8 (b) (4) (A) of
the Act. We agree.
Gotham owns and operates Radio Station WINS, with offices and
studios located at 28 West 44th Street, New York, New York.
Gotham has an agreement with River Operating Company, Inc.,
herein called River, whereby Yankee baseball games are broadcast
over WINS. In connection with the broadcasts of these games from
Yankee Stadium, Gotham provides only a portable amplifier, portable
microphones, and an engineer. The sportscasters, and all other equip-
1 The requests for oral argument made by the Respondents and Gotham are hereby denied
because the record and exceptions and briefs , in our opinion , adequately present the issue
and positions of the parties.
110 NLRB No. 269.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2167
ment, including leased telephone wires to transmit the sportscast to
Gotham's studios, are furnished by River. Gotham also has an agree-
ment with Parkway Sporting Club, Inc., for broadcasting boxing
exhibitions from Eastern Parkway Rink, herein called the Rink, each
Monday night. In connection with these broadcasts , Gotham provides
a portable amplifier , portable microphones, an engineer, and
sportscasters.
Respondent Local 802 represented eight musicians employed by
Gotham at its WINS studios. A dispute arose between Gotham and
the Union over the terms of a proposed new contract for these musi-
cians. The negotiations broke down and the Union placed pickets at
both entrances to Gotham's studios at 28 West 44th Street. Such
picketing was still being conducted at the time of the instant hear-
ing.2 The Union did not, however, confine its picketing activities to
Gotham's studios on 44th Street. On April 10, 1954, and thereafter,
the Union picketed at the Yankee Stadium. This picketing covered
employee and delivery, as well as public, entrances. The picketing
commenced each day after a majority of the employees of the conces-
sionaires and other employers had entered the stadium and coincided
with the opening of the gates to the general public.3 However, about
175 employees entered the stadium each day after the picketing began.
On April 12, 1954, the Union also picketed at the employee and public
entrance to the Rink at a time when employees of the various conces-
sionaires were reporting for work. The picketing at both the Yankee
Stadium and the Rink occurred while certain employees of Gotham
were on those premises,4 the picketing was peaceful, and none of the
employees of the secondary employers ceased work as a result of the
picketing.
It is undisputed that no musicians are, or have been at any time ma-
terial herein, employed by Gotham at the Yankee Stadium or the Rink
in connection with broadcasts over WINS from those premises .' In
the circumstances, the Trial Examiner found, among other things,
that the situs of the dispute between Gotham and the Respondents
was never located at either of those premises and the picketing was
therefore unlawful.
2 The complaint does not allege that this picketing is violative of the Act
3 The Trial Examiner erroneously found that the picketing began prior to the opening
of the gates to the general public.
4 The Trial Examiner found that the WINS engineer arrived at the Yankee Stadium
between 10 30 and 11 : 30 a in. on game days, whereas the record reveals that he arrived
between 9: 30 and 11 : 30 a. in.
5 The picket signs at both the Yankee Stadium and the Rink read : "Musicians of Radio
Station WINS are on Strike , Local 802 , American Federation of Musicians , affiliated with
the American Federation of Labor "
9 The Trial Examiner found that no music was used or sent out in connection with
the Yankee Stadium broadcasts , whereas music is played during the opening game cere-
monies each year and the National Anthem is played by transcription prior to the be-
ginning of each game. This music, however , is not furnished by Gotham.
2168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents contend that the picketing at the Yankee Stadium
and the Rink was primary within the meaning of the criteria set forth
in the Moore Dry Dock case.7 However, as already noted, the em-
ployees solely involved in the dispute between the Union and Gotham
in the present case were employed at Gotham's studios at 28 West 44th
Street. The Moore Dry Dock and other common situs cases make it
clear that picketing affecting in any manner the employees of second-
ary employers can be considered primary only where as a condition
precedent, the secondary employer is harboring the situs of a dispute
between the union and a primary employer.8 In the instant case the
situs of the Union's dispute with Gotham was at Gotham's studios at
28 West 44th Street, which could be and was readily picketed, and not
at the Yankee Stadium or the Rink.9 The latter locations, contrary to
the Respondents' contention, obviously were not "studios" of Gotham.
Accordingly, and upon consideration of all the other relevant facts
in the case, we are convinced and find that the picketing at the Yankee
Stadium and the Rink was conducted, at least in part, to force second-
ary employers doing business at those locations to cease doing business
with Gotham, by inducing and encouraging the employees of second-
ary employers to engage in a strike or concerted refusal to work, in
violation of Section 8 (b) (4) (A) of the Act.10
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Associated Musicians of
Greater New York, Local 802, American Federation of Musicians,
AFL, and its officers, representatives, successors, assigns, and agents,
including the Respondent Al Manuti, shall :
1. Cease and desist from inducing or encouraging the employees
of any employer, other than Gotham Broadcasting Corporation, to
engage in a strike or concerted refusal in the course of their employ-
7 Moore Dry Dock Company, 92 NLRB 547
s Moore Dry Dock, supra, at page 549; Western, Inc., 93 NLRB 336 at 336 , Kanawha
Coal Operators Association, 94 NLRB 1731 at 1733, enfd. 198 F . 2d 391, (C. A 4), cert.
denied 344 U. S 876; Otis Massey Company, Ltd., 109 NLRB 275.
In view of our finding that the situs of the dispute between the Union and Gotham
was never located at the Yankee Stadium or the Rink , we find it unnecessary to deter-
mine whether the Union's picketing at those places complied with the remaining criteria
set forth in the Moore Dry Dock case
10 Contrary to the Respondents ' contention , an actual strike or concerted refusal to
work by the employees of the secondary employer is not an essential element precedent
to the finding of a violation of Section 8 (b) (4) (A). N L R B v. Denver Building and
Constructwn Trades Council, 193 F. 2d 421 at 424, (C. A. 10), enfg 87 NLRB 755,
759 Joliet Contractors Association, et at. v. N L R B , 202 F. 2d 606 , ( C. A 7), relied upon,
by the Respondents, does not require a contrary conclusion . The court emphasized in that
case that the concerted activities induced or encouraged by the union must be in the course of
the employees ' employment . The question of whether or not an actual strike or refusal to
work must occur was not in issue.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2169
ment to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, or commodities, or to perform any serv-
ices for their respective employers, where an object thereof is to force
or require any employer or person to cease doing business with Gotham
Broadcasting Corporation.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Post at their business offices copies of the notice attached hereto
and marked "Appendix." 11 Copies of said notice, to be furnished by
the Regional Director for the Second Region, shall, after being duly
signed by an official representative of the Respondent Union and indi-
vidually by Respondent Manuti be posted by the Respondents imme-
diately upon receipt thereof and maintained by them for a period of
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members of the Respondent Union are
customarily posted. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto and marked "Appendix" for post-
ing at the places of business of the secondary employers located at
the Yankee Stadium and the Eastern Parkway Rink, the said em-
ployers being willing, where notices to their employees are customarily
posted.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, these shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
To ALL MEMBERS OF ASSOCIATED MUSICIANS OF GREATER NEW YORK,
LOCAL 802, AMERICAN FEDERATION OF MUSICIANS, AFL
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage the employees of Daniel R.
Topping and Del E. Webb, copartners under the firm name and
style of New York Yankees, or the employees of Parkway Sport-
ing Club, Inc., or of any other employer to engage in a strike or
a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, or commodities, or to perform any services
2170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for their respective employers where an object thereof is to force
or require any employer to cease doing business with Gotham
Broadcasting Corporation.
ASSOCIATED MUSICIANS OF GREATER NEW
YORK, LOCAL 802, AMERICAN FEDERATION OF
MUSICIANS, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(Agent) (Al Manuti)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed April 16, 1954, by Gotham Broadcasting Corporation,
herein called Gotham, alleging that Associated Musicians of Greater New York,
Local 802, American Federation of Musicians, AFL, and Al Manuti, its agent, both
of 261 West 52nd Street, New York, New York, herein called Respondent Local
802 and Respondent Manuti, and collectively called Respondents, had engaged in
and are now engaging in certain unfair labor practices affecting commerce as set
forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136,
hereinafter referred to as the Act, the General Counsel of the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the Second Region
(New York, New York), as agent for the Board, issued a complaint dated May 13,
1954, alleging that the Respondents had engaged in and were engaging in unfair
labor practices within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and
(7) of the Act. Copies of the complaint and the charge together with a notice of
hearing were duly served on the Respondents and the Charging Party.
With respect to the unfair labor practices the complaint alleged in substance:
That since on or about April 1, 1953, Respondent Local 802 has been engaged
in a labor dispute with Gotham concerning the terms of a collective-bargaining
agreement affecting members of Local 802 employed by Gotham.
That since on or about April 10, 1954, Respondents have engaged in and are engag-
ing in and, by picketing, requests, appeals, orders, directions, instructions, and other
means, have induced and encouraged and are inducing and encouraging the employees
of employers other than Gotham, and strangers to the dispute to engage in a strike
or a concerted refusal to use, process, transport, or work on any goods, articles,
materials, or commodities, or to perform any service, with the object of (a) forcing
their employers doing business with Gotham to cease doing so, and to force or
require persons doing business with their employers to cease doing so as long as
their employers did business with Gotham.
That more particularly to accomplish the above objects the Respondents have
engaged in picketing the Yankee Stadium, in New York, New York, and the Eastern
Parkway Rink, in Brooklyn, New York.
That the above acts and conduct of the Respondents are violative of Section 8
(b) (4) (A) of the Act.'
1 Section 8 (b) (4) (A) of the Act provides it shall be an unfair labor practice for a
labor organization or its agents-
(4) to engage in, or to induce or encourage the employees or any employer to
engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services, where an object thereof is :
(A) forcing or requiring any employer . . . or other person to cease using, selling,
handling, transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other person ; .
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2171
The Respondents duly filed an answer in which it was denied that they had engaged
in any of the unfair labor practices alleged.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at New York, New York, on June 7 to 9, 1954, inclusive. The
General Counsel, the Respondents, and the Charging Party were represented by
counsel, all being thereafter referred to in the names of their principals. The parties
participated in the hearing, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence bearing on the issues, to argue
orally on the record , and to file briefs , proposed findings of fact , and conclusions
of law with the Trial Examiner.
At the conclusion of the evidence in the General Counsel's case-in-chief and again
at the close of the hearing the Respondents moved to dismiss the complaint. The
Trial Examiner denied the motions.
The General Counsel and the Charging Party argued orally on the record. Briefs
have been received from the Respondents and the Charging Party.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party, herein called Gotham, is, and has been since July 13, 1953,
and at all times herein mentioned, a corporation duly organized under and existing
by virtue of the laws of the State of Delaware.
At all times herein mentioned, Gotham has owned and operated the Radio Broad-
casting Station WINS, with offices and studios located at 28 West 44th Street, in the
city, county, and State of New York, and a transmitter located at Lyndhurst, New
Jersey, and is now and has been continuously engaged in broadcasting commercial and
sustaining programs to audiences in the States of New York, New Jersey, Connecti-
cut, Vermont, and Massachusetts. In the course of its operations, Gotham also fur-
nishes programs which are broadcast from radio stations in other States. Station
WINS operates at 50,000 watts power and has a minimum range of 150 miles from
its transmitter. Gotham subscribes to both the International News Service and
the United Press.
During the year 1953, Radio Station WINS, then under the ownership of Gotham's
predecessor, Crosley Broadcasting Corporation, furnished necessary services valued
at more than $900,000 to various enterprises. Approximately 50 percent of said
$900,000 was furnished to enterprises engaged in interstate commerce. A substantial
amount of the yearly revenue of Radio Station WINS came from sources outside
the State of New York.
At all times material herein, Gotham has been an instrumentality and channel of
interstate commerce and is and has been engaged in commerce within the meaning
of the Act.
II. THE RESPONDENTS
The Respondent, Associated Musicians of Greater New York, Local 802, American
Federation of Musicians, AFL, is a labor organization within the meaning of Section
2 (5) of the Act, and admits employees of Gotham to membership.
The Respondent, Al Manuti, is, and for all times material herein has been, presi-
dent of Respondent Local 802 and an agent thereof.
III. THE UNFAIR LABOR PRACTICES
A. The Respondents' picketing of the Yankee Stadium
The Respondent, Local 802, represents eight musicians employed by Gotham at
its Studio WINS.
Henry G. Kirwan, secretary-treasurer of Gotham, testified without contradition,
and credibly, that the above-mentioned musicians played only at Gotham' s studio at
28 West 44th Street in New York City with the exception that on one occasion in
September 1952 they played at the Yankee Stadium.
The record discloses that as the result of a labor dispute involving the Gotham
musicians Local 802 called a strike and picketed Gotham's studio at 28 West 44th
Street. At the time of the hearing the strike was current and the picketing was being
carried on.
2172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is admitted that as an incident of its above-mentioned labor dispute and strike
the Respondent, Local 802, on April 10, 1954, and thereafter picketed the Yankee
Stadium, which is the locale of the home playing field of the American League
baseball club known as the "Yankees" which plays its home games there, the public
being admitted to view the exhibitions on payment of a fee.2
Operations of Yankee Stadium
It is undisputed that the American League franchise for the Yankee ball club is
owned by a partnership , consisting of Daniel R . Topping and Del E. Webb. The
partnership leases the Yankee Stadium.
The partnership employs the players, and also certain clerical and promotional
employees whose place of work is at offices maintained at the stadium.
The partnership has a contract with River Operating Company, Inc. (River),
whereby River operates and manages the stadium.
River, in the course of such management , employs a superintendent , ticket sellers,
clerks, and the like, whose place of work is at the stadium . River employs Allied
Maintenance Corporation (Allied), for the direct maintenance of the stadium
grounds and stands , for the sale and collection of admission tickets, and protection
of people and property.
Allied, in carrying out its contract with River, employs ticket sellers, ticket takers,
ushers, porters , matrons, mechanics , special police, and the like. These employees
have their place of work at the stadium
Harry M Stevens , Inc. (Stevens ), has the concession to sell refreshments at the
stadium . Stevens employs vendors and other operating personnel , whose place of
work is at the stadium.
A bar and restaurant is also operated at the stadium , under the title of Yankee
Stadium Club.
During the time games are in progress the employees of various television and
radio broadcasting companies , newspapers , wire services , photographers , telegraph
companies , and other employers are present at the exhibitions at the stadium in the
course of their employment by such companies.
Al Manuti , president of Respondent Local 802, testified:
Q. Mr. Manuti , you are familiar, are you not , with the fact that there are
a lot of employees of the various employers that work at the Yankee Stadium?
A. Yes.
Q. You are also familiar, are you not, with the fact that most of these em-
ployees are members of various labor unions?
A I am aware of that.
Q. Are you aware of the different unions that have, that represent the em-
ployees that work at the Yankee Stadium?
A. Sure.
The description of the actual Yankee games , while played at the stadium , is broad-
cast by radio.
River owns the broadcasting rights.
Robert Leder , vice president of Gotham , testified , credibly, that River contracted
with Gotham to broadcast the game descriptions over and through the facilities of
Gotham 's Station WINS.
Leder testified:
The River Operating Corporation, which is the corporate set-up that owns the
broadcasting rights to the Yankees, contracts to buy a specific period of time
from WINS to broadcast the Yankee baseball games . They agree to pay us
X number of dollars for that time. In addition , they pay us for all facilities
rendered or given to the River Operating in pursuit or in putting on the broad-
cast of the baseball games That would include all facilities , such as lines and
engineers and so forth . That, in a sense , very basically , is the extent of our
contract with River.
2 The record refers to, and certain excerpts from the transcript of Douds v Associated
Musicians of Gi eater New York;, et at -CIV. 93-88, United States District Court, Southern
District of New York, were cited, during the instant hearing. In the said case, acting
under the provisions of the Act, the Regional Director for the Board's Second Region,
petitioned for an interlocutory injunction restraining the Respondents from picketing the
Yankee Stadium Injunctive relief was granted by the Honorable Edward A. Conger,
District Judge, on May 27, 1954.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2173
Leder further testified that the actual broadcast is by employees of River and that
Gotham (WINS) furnished only one employee in connection with the broadcasts
from the stadium. This employee is an engineer, who is not heard over the radio,
and is not a member of Respondent Local 802 but is a union member of the
I. B. E. W.
The equipment used for the Yankee broadcasts consists of a portable amplifier,
which is removed when the team is away. The apparatus used can be carried in a
"medium sized" suitcase.
The broadcast when made is first sent over telephone wires to the WINS Studio
in New York. River pays for the telephone circuit used. From the studio the
broadcast goes over wire to Gotham's transmitter located at Lyndhurst, New Jersey.
Leder further testified:
. . . The control or supervision, responsibility for the control of the broadcast,
rests in master control at our studios, as does any broadcast we put on the air.
No music is used or sent out in connection with the Yankee Stadium broadcasts.
Broadcasts of games begin at 1:55 p. in. if played during the day and 8:25 p. in.
if played at night. No other broadcast goes out from WINS while the baseball
games are on the air. About 30 stations pick up the broadcast. Leder testified:
Q. How is that done?
A. It is taken off the line coming from the Stadium and in turn carried along
through telephone lines to the Empire Recording Company, who in turn send it
out to twenty-nine or thirty stations in upstate New York and Connecticut area,
the Massachusetts area.
Leder testified that approximately 10 percent of Gotham's revenue is derived from
the Yankee Stadium broadcasts and an additional 10 percent of its revenue from pre-
and postgame broadcasts made in connection with the game broadcasts.
Leder further testified that WINS broadcasts 126 hours weekly, of this 20 hours
are broadcasts made outside its studio, there being 4 such broadcasts made, the
Yankee games, the Eastern Parkway Arena "fights," and 2 religious broadcasts from
churches
Returning now to the operation of the stadium, Edwin B. Fisher, the Yankees'
director of promotion, testified that in general, according to the rules of the stadium,
the stadium employees as well as the employees of various operating companies
and concessionaires arrive for work after 11:30 a. in. (5:30 p. in. for night game
help), and are required to enter through special gates. After the stadium is opened
to the public, all such employees are required to use the "Press Gate." Deliveries
are made at special gates and the "Press Gate" throughout the day. Office employees
enter through the office door and apparently keep the usual office hours. Some
employees of the various employers leave the stadium for lunch after the stadium
is opened to the public. Passes are issued to permit their exit and return. Some
employees of Allied, such as ticket sellers, ticket takers, porters, and special police
work outside the stadium proper. The WINS engineer arrives between 10:30 and
11.30 a. in.
For tax purposes a record is kept of every person entering the stadium on special
pass, working pass, or otherwise. The Yankees' records show that during the 16
days Respondent Local 802 picketed the stadium, persons other than naving spec-
tators, that is individuals who so entered the stadium in the course of their regu-
lar employment, fell into the following categories:
Persons on Season Working Passes
Persons on Daily Working Passes
Yankees' Employees (office, players, umpires, etc.)
Allied Employees
Stevens' Employees
Western Union
Police and Firemen
River Operating Employees
Allied Maintenance Employees
Stevens' Concession Employees
Stadium Club Employees
More than an average of 800 such individuals were at the stadium daily during the
days in question.
Joseph Roccaforte testified that he was the picket captain in charge of the pick-
ets of Respondent Local 802 at the stadium from April 10 to May 2, 1954; that for
2174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first 6 days of picketing he placed 25 pickets and for the next 6 games he placed
15 pickets. The pickets were stationed at all entrances where tickets were sold at
the Press Gate. It is clear that the Stevens' entrance was also picketed.
-
Roccaforte testified that he arrived at 11:45 a. m. and had the pickets placed a
few minutes after 12 noon; that the pickets carried signs which he gave them, the
signs reading:
MUSICIANS OF RADIO STATIONS
WINS
ARE ON STRIKE
LOCAL 802
AMERICAN FEDERATION
OF MUSICIANS
Affiliated with the
American Federation of Labor
Roccaforte testified that after the pickets had been placed at the stadium; "I had
the entrances mostly covered." He further testified the picketing continued
"until 2:30."
Al Lubert testified he had charge of the pickets at the stadium for Respondent
Local 802 after May 2; that he placed the pickets at 12 o'clock and continued
picketing until 2 p. m. and that for the night games the picketing continued from
7 p. m. to 9:30 p. m. The pickets, when Lubert was in charge, covered the same
entrances as when they were controlled by Roccaforte.
The complaint alleges that an object of the picketing is to induce and encourage
the employees of Yankees, River, Allied, Stevens, and all others doing business at
the stadium such as newspapers, wire services, photographers, telegraph companies,
and others, to engage in a strike or a concerted refusal in the course of their employ-
ment to use, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any service, objects thereof being: to
force or require River to cease doing business with Gotham; to force or require
Yankees, Allied, Stevens, television and radio broadcasting companies, newspapers,
wire services, photographers, telegraph companies, and other employers normally
doing business with River, to cease doing business with River; and to force or
require persons normally doing business with Stevens, Allied, Yankees, and other
companies operating at the Yankee Stadium to cease doing business with said
companies.
Respondent Al Manuti testified:
The purpose for the picketing is to notify the public, to advertise to the public,
that we have a dispute with WINS. That is about all.
Manuti further testified that the Respondents intended to picket the Yankee
Stadium "as long as WINS broadcast the baseball games," or until the strike was
settled, and that the Respondents did not ask any of the unions whose members
worked at the stadium to strike. He further testified:
Q. Did you ever communicate with any of those unions and tell them that
their employees or their members would be free to disregard your picket line
up there at the Stadium?
A. No. I didn't have any conversation with them at all.
On April 1, the Respondent Union struck Gotham and picketed its studio in
New York City. On the same day the Respondent sent the following telegram
to Daniel R. Topping, one of the partners in Yankees, who was in Florida at the
time:
Radio Station WINS has refused to renew its contract which expired March
31 with Local 802. The station which employed eight staff musicians now
wishes to employ only one. Under the circumstances we are obliged to go
on strike and establish a picket line at WINS starting this morning. Local 802
would appreciate it greatly, as would I personally if you would use your good
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2175
offices and influence with the management of this station so that this dispute
may be settled quickly and amicably.
Happy Powers Local 802 American
Federation of Musicians
Fisher testified Topping informed him that he had received the telegram.
On April 10, Respondent Local 802 picketed Yankee Stadium.3
The baseball season opened April 15, on which day a game was scheduled at
the stadium.
The opening game at the Yankee Stadium is customarily marked by traditional
ceremonies, during which a band plays the National Anthem and the National
Flag and championship pennant are raised.
Since 1922, music for these ceremonies has been furnished by the Seventh Regi-
ment Band. The Seventh Regiment Band was formerly a military organization but
is now a civilian professional organization which still bears its former military name.
The band is under the direction of Major Francis W. Sutherland, U. S. Army, re-
tired, who books its engagements , employs and pays the musicians , and leads its
playing. Apparently the Seventh Regiment Band has considerable local reputation
and as above noted has been an integral fixture of the opening day at the stadium for
more than 30 years.
Major Francis W. Sutherland testified that he is a member of Respondent Local
802, and that all members of the Seventh Regiment Band are likewise members of
Local 802; that he "had a contract" to play at the stadium for opening day, April 15;
that on April 13 he received a telephone call from the Respondent Manuti during
which:
He told me that possibly that we wouldn't be able to play the opening game,
,due to the fact there was a settlement to be made, trying to get a settlement
with the WINS Station; that possibly they would have to picket the place, and
naturally I wouldn't be-couldn't cross the picket line. That is as near as I
can recall it.
Sutherland further testified that thereafter he received a telegram from Manuti
asking that he call him and that on April 14 he did so, the following conversation
taking place:
I told him "I received your telegram and I'm awfully sorry to hear you
haven 't been able to settle. I am going to be very disappointed , because of a
double reason." I said, "I have been with the Yankees so many years and my
batting average is a thousand and I hate to have it spoiled by something I think
can be straightened out now." I think that was about the line. He said he
hoped so himself, but he said, of course, if they establish picket lines, "You
won't-" No, I said I would not go through any picket line.
.Sutherland further testified:
Q. Did he tell you that you would not be permitted to play?
A. Well, when he says there will be a picket line established, he wouldn't
necessarily have to say I will not be allowed to play, because a union man, I
would not go through the line.
Sutherland testified that he told Manuti he would not bring the band to the stadium
,but would wait at the Armory, but that Manuti told him:
He says they don't need to go to the 7th Regiment Armory, the job is
off.
The following day which was opening day Sutherland and the band assembled at
the Armory, with the exception of one musician who first went to the stadium, but
, later came to the Armory.
From the Armory, Major Sutherland telephoned Manuti and told him he was
,ready to play. He also called Fisher, whom he had kept informed of his conversa-
tions with Manuti. Sutherland testified he told Fisher "We are waiting at the Ar-
mory and can still come and play that Star Spangled Banner for you." Fisher
asked that he wait until "a quarter to eleven." At about that time not having heard
again from either Manuti or Fisher, Sutherland dismissed his band.
Sutherland further testified that during his first conversation with Manuti, he told
Manuti that "somebody is going to have to pay for this band" and that Manuti re-
3 The baseball season opened April 15, however "exhibition" games were played on
April 10 and 11 The stadium was picketed on all game days from April 10 to May 24.
2176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied, "that will be taken care of." In fact Sutherland sent a bill to Respondent
Local 802, which paid Sutherland for the music which would have been played on
April 15, under his contract with the Yankees.
Respondent Al Manuti testified:
I discussed with Major Sutherland the dispute between WINS and the union.
I told Major Sutherland we were going to picket the Yankee Stadium. Major
Sutherland, a member in good standing for many, many years, being a good
union man , understood that there were going to be pickets there, and he would
not cross our picket lines. He wouldn't if I order him to, he wouldn't. That
goes for Major Sutherland and his whole band.
Manuti did not deny any of Sutherland's testimony 4
Fisher testified that Major Sutherland telephoned him and informed him of the
impending difficulties that might arise with respect to his band playing on opening
day; that he then called Manuti and asked him "what it was all about and in par-
ticular what it would mean relative to our plans for opening day"; that Manuti re-
plied that unless the Respondents and Gotham had settled their differences "Major
Sutherland would not be allowed to work at the Stadium, Thursday April 15," that
he (Fisher) then pointed out "Yankees were innocent victims of a difference be-
tween other people"; that Manuti replied:
. .. "Look, Fisher, after all, why don't you tell Topping to get hold of these
guys and talk sense into their heads and tell them to straighten out with us and
you won't have any trouble at all."
Q. Did he say whom he meant by the words "these guys?"
A. I never questioned him. The nature of the conversation was such that
I am sure we were talking about his people and WINS.
Q. It was your understanding "these guys" referred to the WINS
management?
A. That is correct.
Fisher testified that between April 12 and 14 he had three additional telephone
conversations with Manuti and that during the third conversation he offered to have
Gotham remove its equipment during the ceremonies. Fisher testified:
I immediately suggested to Mr. Manuti that we felt our opening day cere-
monies were important enough and had a traditional nature enough involving
the appearance of high public officials at the ball park and the ceremonial rais-
ing of the world championship flag number five, something never done before
in the history of baseball, and that we would go to any extent to preserve the
ceremonies and to allow Major Sutherland's band to play, around whom the
ceremonies were built. That I was going to immediately move to have the
WINS microphone removed from the ball park until after the ceremonies
would have been completed and Major Sutherland's band, if Mr. Manuti so
insisted, was actually out or on the way out of the ball park.
4 On cross-examination Manuti was questioned with respect to his testimony at the
hearing on application for injunction The testimony as read into the record is •
Q Do you recall being questioned on the same subject at the hearing on the tem-
porary injunction before Judge Conger?
A. I may have been
Q Do you recall being asked the following questions by the Court and giving the
following answers, pages 107 and 108?
The COURT You know the gentlemen very well, don't you, the Major here?
The WITNESS. The Major?
The COURT Yes
The WITNESS. Yes
The COURT He said that you told him that unless it was settled he could
not play, is that light?
The WITNESS My first conversation with him-
The COURT I did not ask you that I asked you, or I say to you now that
lie said that you told him unless it was settled, he could not play?
The WITNESS. Yes.
The CounT Is that right?
The WITNESS Yes
The COURT All ilght, thei e we have It
The WITNESS Yes
Do you recall those questions and answers?
A Yes, I recall them.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2177
According to Fisher Respondent Manuti would not agree and asked "strenuously":
why was I wasting all this time and going through all these maneuvers
when it seemed so easy for us , or you people, I think, as he referred to us, to,
again knock some sense into these guys and tell them to straighten out so that
our opening day can go ahead. . . .
Later that day Fisher again called Manuti and told him arrangements had been
made whereby Gotham would not be present at the opening. He testified:
When I advised Mr. Manuti this had been done and I requested that he im-
mediately advise Major Sutherland that it was now O. K. for him to play-
the opening day, he said, "Fisher, I am sorry to tell you this, but we anticipated
this move. I have taken it up with the Board"-or my Board, I think it was,
as he referred to them-"and the answer is No."
Manuti testified he had only two conversations with Fisher; admitted that he
told Fisher he "was hoping" that Topping "use his good offices"; testified that he
told Fisher he would consult with his board regarding the band and did so but.
Of course, the Board's position was that they didn't know what action to
take, and although Mr. Fisher had given us assurance that music wouldn't
go over WINS, this is just something that I reported as a conversation on the
phone with a man I didn't know. Therefore, I had no actual assurance that
we could believe this would happen.
Manuti further testified:
TRIAL EXAMINER: Didn't you call Mr. Fisher or inform Mr. Fisher what-
your Board had agreed or said they wanted to do?
The WITNESS: I told him I would call back.
TRIAL EXAMINER: Did you?
The WITNESS: I don't remember whether I did or not.
As found herein , the band did not play.
Fisher impressed the Trial Examiner as a wholly truthful witness, Manuti did
not, therefore the Trial Examiner credits Fisher's account of the conversations be-
tween Manuti and himself as being the accurate version thereof both as to number
and content.
B. The Respondent's picketing of the Eastern Parkway Rink
There is no dispute as to the following facts:
Parkway Sporting Club, Inc. (Parkway), operates the Eastern Parkway Rink in
Brooklyn, New York, for the purpose of holding boxing exhibitions. At said rink,
Parkway leases food , refreshment , and other concessions to various firms, herein
called Parkway concessionaires.
For some time Gotham (Station WINS), under a contract with the Parkway,
has been broadcasting accounts of such exhibitions each Monday night.
The rink has a single 25-foot wide entrance and lobby on Eastern Parkway which
employees of Parkway and of the concessionaires operating inside the rink must
use, such employees arrive in the early evening. Representatives of the press arrive
between 7:30 and 8 p. in. Broadcasts , however, do not begin until 9:55 p. in.
No member of the Respondent Local 802 is, or has been at any time material
herein, employed by Gotham at the Parkway Rink in connection with broadcasts.
over WINS from said place.
At no time material herein has there been any labor dispute between the
Respondents herein and any of the Parkway concessionaires or of Parkway itself.
Peter A. Locke, vice president of Parkway, testified that "between six and seven
o'clock in the evening" of April 12, 1954, he saw two men with "signs stiapped
on them like sandwich signs" in front of the rink entrance.
The parties stipulated that the signs carried at Parkway bore the same wording
as those used by Respondent Local 802 pickets at Yankee Stadium.
Locke testified he spoke to the pickets as follows:
Q. You spoke to them. Can you give me the conversation?
A. Words to the effect, "What are you picketing about and who are you
picketing?" Then got into a conversation and I wanted to know how we could
get rid of it. One of the gentlemen mentioned, "The only way you can do it
is if you call Mr. Lewis" and gave me some midtown telephone number. . . .
338207-5 5-vo l 110-138
2178 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Locke testified the number given him was called and that he then spoke with one
James Lewis, admitted to be a business representative of the Respondent Local 802.
Locke testified:
I said, "Why are we being picketed?" He said, "As long as WINS is broad-
casting." And I said, "I want them out of there. I don't think we are going
to allow them to broadcast," and I was a little heated.
Mr. Lewis straightened me out. I believe I said, "Suppose I give you a
letter to the effect that you take these people off, mentioning WINS and their
equipment, and keep them off until such time as the matter has been settled?"
Q. Did Mr. Lewis say anything to your proposal?
A. I believe he acquiesced to it. .. .
At this point one Terry Kahn, also admitted to be a business representative of
Local 802, entered the Parkway Office. Locke told Kahn, who identified himself,
of his conversation with Lewis, Kahn telephoned "somebody" and then told Locke
"it was alright to get a letter."
Locke further testified:
I said, "How do you want it worded?" He went upstairs with Mr. Esposito
and I went to the manager's window, I was then working selling tickets, and
they brought this letter over, and I said O. K. and signed it. He made me
identify myself thoroughly. He wanted to know if I was an officer, and before
I knew it there were no more pickets.
Q. You gave this letter to Mr. Kahn?
A. That is right.
The letter in question reads:
This will confirm our telephone conversation reference to station W. I. N. S.
We agree not to allow station WINS to broadcast our boxing bouts tonite.
We further agree not to allow broadcasts by WINS from this Arena until
the labor dispute between Local 802 A. F. M. and station W. I. N. S. has
been settled.
Locke further testified:
Q. (By Mr. Wittlesey.) Did this Mr. Lewis tell you if you got WINS out
,of there the pickets would stop?
A. I don't remember whether he said it or I suggested it.
Q. Where did you get the idea of suggesting it from?
A. I have a lot of ideas. I had done something like this once before. The
reason that it was so clear in my mind was the fact that in that immediate neigh-
borhood nobody, but nobody crosses the picket line. [Emphasis supplied.]
Later that evening Locke informed Gotham that no broadcasts could be made and
gave Gotham a written document explaining Parkway's reason for the action.
No further broadcasts were made from the rink until May 31.5
James Lewis, business representative of Local 802, testified inter alia with respect
,to Locke's conversation with him:
He (Locke) was all upset over the fact we had pickets there, and I made Mr.
Locke understand our quarrel wasn't with him. We had a strike with WINS,
and due to the fact that there was a wire broadcasting the fights, that is the
reason we had the pickets.
The Respondent, Al Manuti, testified that "we never started picketing at Eastern
Parkway." He testified that although the pickets were "by the entrance" there
was no picketing because:
They were waiting for instructions and discussions by the management, and
one of our officials in the union.
Al Lubert, who testified he had charge of the pickets at Parkway, had a different
version than Manuti. According to Lubert as he was unwrapping his signs for the
pickets "someone" came out of the rink and asked "What this is all about"; that he
,told this person that he was under orders to picket, whereupon:
He said, "Well, you better get them off here or else."
I says, "My dear man, I can't take them off, no matter what happens, I have
orders to have them walking for two and a half hours."
5 After the injunction herein mentioned.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2179
With that, he went back into the Arena. Well, I gave the pickets the signs
and they started walking, two pickets. Within a few minutes, another gent
came out, and he started asking me the same questions as the previous
gentleman... .
The second man was Locke. Lubert testified he gave Locke the Respondents'
telephone number and that shortly thereafter Kahn stopped the picketing.
The Trial Examiner does not credit Manuti's version to the effect that the Respond-
ents did not picket Parkway on April 12, 1954.
The General Counsel contends that one of the purposes of the Respondents'
picketing of Parkway was to induce or encourage the employees of Parkway and
Parkway Concessionaires, to'engage in, a strike or a concerted refusal in the course
of their employment to use, process, transport or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services for their
respective employers with an object to force or require Parkway to cease doing
business with Gotham, or to force or require Parkway concessionaires or any other
employer who normally does business with Parkway, to cease doing business with
Parkway until the Respondents' dispute with Gotham was resolved.
Conclusion
Inasmuch as the picketing of Yankees and Parkway was for the same purpose
and followed an identical pattern they will be considered together.
There can be no doubt that the picketing was peaceful and that no attempt was
made to prevent delivery of merchandise or forcibly prevent entry.
It is clear that no employee of Yankees, Parkway, or any of their contractors or
concessionaires quit work in concert or refused to perform any duty or service as
described in the Act, because of the Respondents' picketing, except in the case of
the Seventh Regiment Band. It is likewise clear that the Respondents have a legal
right to picket Gotham's regular place of business, namely, the studio at 28 West
44th Street, New York City.
Gotham's regular place of business was picketed at all times material herein
and was being picketed at the time of the hearing. This is primary picketing,
however when the Respondents picketed Yankees and Parkway they were engaging
in secondary picketing, picketing at a situs not that of the primary dispute.
As herein found the Respondent Manuti testified that the sole object of the
picketing was to publicize the Respondents' dispute with Gotham, and that the
Respondents intended to continue the picketing as long as the dispute existed.
Section 10 (1) of the Act embodies the determination of Congress that even
temporary disruption of interstate commerce by acts in violation of Section 8 (b)
subsection (4) (A), is unjustified and inimical to the national interest.
The instant proceeding, in the opinion of the Trial Examiner, is in no way designed
as an attempt to interfere with the Respondents' right to conduct their strike against
Gotham. But when the Respondents' activities exceed those aims, injuring innocent
third parties in their efforts, there is at least reasonable cause to believe that such
conduct falls within the prohibitions of Section 8 (b) of the Act.
In the opinion of the Trial Examiner, to credit the Respondents' contention that
its picketing of Yankees and Parkway (secondary employers) was for information
of the public only is entirely unrealistic. The Trial Examiner is convinced that one
of the objects of the picketing was to induce or force Yankees and Parkway em-
ployees to engage in conduct which would exert pressure on Gotham to the extent
of quitting business with Gotham in order to force Gotham to concede to the
Respondents' demands in the Respondents' dispute with Gotham.
The Respondents' action clearly proves the above conclusion beyond doubt.
In the case of Yankees, on April 1, the Respondents wired Yankee partner Topping
to use his "good offices" with Gotham in the Respondents' behalf.
Topping took no action. Likewise Gotham seemed to operate quite well without
musicians.6
On April 10, the Respondents picketed Yankees.
Just before the opening game of the regular season, which is marked by tradi-
tional ceremony requiring the music of a band, the Respondents informed Yankees
that the band could not participate in the ceremonies although Yankees had arranged
for Gotham to refrain from broadcasting while the band was in the stadium. At
O Evidence crept into the record to the effect that the dispute was due to Gotham's
desire to hire no musicians because they were not needed.
2180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same time the Respondent Manuti told Yankees every difficulty could be resolved'
if Topping would "talk sense into their [ Gotham's] head."
Clearly pressure was being exerted on Yankees. There can be no doubt that the
Respondents , by their picketing of Yankees ( and Parkway ) sought , through the
picket line, to exert pressure on concessionaires and others doing business with
Yankees and Parkway because presumably union members, either employees of
concessionaires and others on legitimate business ( as well as prospective customers),
would not cross the line.
The employees of Yankees might strike , likewise those of River, Allied , Stevens,
and wire and picture services as well as the newspaper reporters covering the events.
At least all these employees of employers doing business with Yankees (and
Paikway ) whose services were vital to Yankees ' enterprise might refuse to cross or
work behind the Respondents ' picket line.
If this occurred , the playing field would not be prepared , tickets would not be
sold, or taken , ushers would not show patrons to their seats , the hot dog and cold
drink, equally as indigenous to the National game as the right to vocally disagree
with the umpire , would not be vended , and in the far places where countless
thousands unable to attend in person waited for the newspaper accounts, no news-
paper account of the game would appear.
Were all this to happen then surely Yankees would "use their good offices" to
the extent of quitting business with Gotham, in order to "put sense" into certain
heads.
In the opinion of the Trial Examiner when one looks at the Respondents ' picket-
ing of Yankees and Parkway , realistically and objectively it becomes apparent that
their real objective was not to publicize their dispute, as they say , but to cause such
damage and annoyance to Yankees and Parkway that these organizations would
compel Gotham to meet the Respondents ' terms or lose the broadcasting business.
In United Brick & Clay Workers v . Deena Artware , Inc., 198 F. 2d 637, cert.
denied 344 U. S. 897, the Court of Appeals for the Sixth Circuit, in affirming a
judgment for damages against a labor organization ,7 pointed out that the time and
manner of the picketing , even when carried on in the vicinity of the primary em-
ployer's place of business , casts important light on the objectives of the Union's
activity.
The law is well settled , moreover, that picketing at any place where employees
are at work tends by its very nature to induce employees not to cross or work
behind the picket line.8
The Respondents ' dispute is with Gotham ; they are entitled , in aid of that dispute,
to picket Gotham's premises and to induce Gotham's employees not to work. But
the Respondents have no dispute with Yankees, River, Allied , Parkway, or any
of the people who do business with them , as customers or otherwise , and no legiti-
mate reason for inducing the employees of these companies to stop work or to
refuse to enter their premises.
Although the Respondents admit the picketing at both the stadium and Parkway,
they contend that such picketing occurred only at times when Gotham was actually
bioadcasting from either the stadium or the rink and that , therefore, Gotham's
place of business at the time of the picketing was actually located at the stadium
or the rink.
The evidence in this case , as found herein , will show that the Respondents' con-
clusion of law is contradicted by the rules of decision for cases of this type, well
established by the Board and approved by the courts , and that the facts are not as
contended.
There are cases, it is true , where the Board has been called upon to attain a fair
balance of the rights and duties of the various parties "where a secondary employer is
harboring the situs of a dispute between a union and a primary employer." In Moore
Dry Dock Company, 92 NLRB 547, the Board laid down the following criteria to be
applied in determining the legality of picketing on the premises of a secondary
employer:
Picketing of the premises of a secondary employer is primary [the Board wrote]
if it meets the following conditions.
(a) the picketing is strictly limited to times when the situs of the dispute is
located on the secondary employer's premises;
4 Under Section 303 (a) (1) of the Labor Management Relations Act, which is a counter-
part of Section 8 (b) (4) (A) of the Act
8 Carpenters d Jlomers Union, etc v Ritter's Cafe, 315 U S 722 , P) eating Specialties &
Paper Converters Union, Local 388 v LeBaron, 171 F 2d 331 (C A 9), cert dismissed
336 U S 949.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2181
(b) at the time of the picketing the primary employer is engaged in its normal
business at the situs;
(c) the picketing is limited to places reasonably close to the location of the
situs;
(d) the picketing clearly discloses that the dispute is with the primary
employer.
These criteria were expressly approved by the Court of Appeals for this Circuit in
N. L. R. B. v. Service Trades Chauffeurs, etc, 191 F. 2d 65 (C. A. 2), and by the
Seventh Circuit in N. L. R. B. v. Chauffeurs, Teamsters, etc., Local Union No. 135,
decided April 21, 1954.
In applying these criteria to the instant case, however, it will be seen that:
( a) The situs of the Respondent 's dispute with Gotham was never located on the
premises of either the Yankee Stadium or the Parkway Rink.
(b) At the time of the picketing , Gotham was not engaged in its normal business
so far as these Respondents were concerned.
(c) Even if the situs of the dispute had been located at the stadium or rink, the
picketing was not limited to times when the situs was so located nor to places rea-
sonably close to its location.
(a) In determining whether the situs of the Respondents ' dispute with Gotham
was ever located at the Yankee Stadium or the Eastern Parkway Rink recourse must
be had to the Moore Dry Dock Company case ( supra ) and to Schultz Refrigerated
Service, Inc.,9 which are the cases wherein the Board set forth the principles under
which the situs of a dispute may be regarded as having come upon the premises of a
secondary employer. It is important to note that both of these cases involved busi-
nesses that were essentially ambulatory in nature-transportation by trucks in the
Schultz case and by ocean vessel in the Moore case-and in which the primary em-
ployer had no place of business within the State where the picketing took place.
The scope of these cases was defined and explained by the Board in its recent deci-
sion in Washington Coca Cola Bottling Works, Inc ,10 decided December 10, 1953.
In that case a Teamsters union had struck for recognition and had placed a picket line
at Coca-Cola's premises . A few days later the pickets began to follow the Coca-Cola
trucks on their rounds and, whenever deliveries were being made , picketed near the
trucks, which were generally parked outside the customers ' places of business.
When the drivers began to park their trucks away from customers ' premises, the
strikers continued to picket the trucks and, in addition , another picket followed the
driver and picketed the customers' premises while the driver was taking orders, mak-
ing deliveries , or removing empty bottles.
The Board held:
The basic fact that the picketing-or inducement-took place at the premises
of secondary employers is not, nor could it be disputed because the inducement
activities occurred where the employees of secondary employers ordinarily work.
We find no merit in the Respondent's assertion that the picketing was intended
.only to embarrass the nonstriking employees of Coca-Cola, or to prevail upon
the buying public to boycott Coca-Cola's product. This broad argument, that
picketing-wherever it occurred- is aimed only at publicizing a labor dispute
and not at inducing work stoppage by employees who are required in their regu-
lar employment to cross the picket line, has been too often rejected to require
further elaboration here.2
After 6 years of Board and court construction of Section 8 (b) (4) (A) of the
Act, the fundamental principle has been established that this section proscribes
picketing at the separate premises of employers who are not a party to the picket-
ing union 's primary dispute. Admittedly such picketing was carried on here.
We have no difficulty in concluding on the entire record that the object of this
picketing activity was to sever the business relationship between Coca-Cola and
its customers and between those customers and their suppliers . Indeed, induce-
ment of employees of tertiary employers-in this case the companies which
,delivered supplies to the public markets-could have no other purpose than to
2lVadsworth Building Co., Inc, 81 NLRB 802; enfd 154 F. 2d 60 (C A 10), cert.
denied 341 U S. 947, Dewier Building and Construction Trades Council, et al (G'ould
and Preisner), 82 NLRB 1125, affd 341 U S 675.
9 87 NLRB 502
10107 NLRB 299.
2182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrupt the flow of business between two employers both of whom were
strangers to the Respondent Union's dispute with the Coca -Cola Company.
The Respondent advances the Schultz and Moore Drydock cases in defense
of the "On-Strike " picketing . Unlike the instant proceeding , the Schultz case
involved picketing of trucks belonging to a company engaged in the transporta-
tion business which had no permanent establishment where the trucks could be
picketed within the State in which the labor dispute arose . Similarly in the
Moore Drydock case the owners of the ship , which was the situs of the picketing
union's dispute with the shipowners , had no permanent berth where the union
could publicize the facts concerning its dispute with the shipowners . Here, the
Coca-Cola plant, which the drivers enter and leave at least 4 times each day, is
located in downtown Washington and was picketed by the Respondent Union
from the first day of the strike . [ Emphasis supplied.]
(b) The musicians who are engaged in the dispute with Gotham had regularly
performed-in the studios of Station WINS located at 28 West 44th Street. They
had no connection whatsoever with the broadcasts of the baseball games or boxing
exhibitions and they had never been employed at the stadium or the Parkway_
Under such circumstances , the Board has held, whatever relationship may exist
between the primary and secondary employers , the situs of the primary dispute can-
not come to rest on the premises of the secondary employer.
In Western , Inc.," a butchers ' union, which was engaged in a dispute with that
company, picketed the company 's trucks driven by Teamsters , at the premises of cus-
tomers; and sought to justify its conduct under the "ambulatory situs" doctrine.
The Board held that the picketing at the trucks violated Section 8 (b) (4) (A),
stating:
These facts are distinguishable from those in Schultz Refrigerated Service, Inc.,
87 NLRB 502, where the trucks picketed were themselves the situs of the labor
dispute. Here the delivery trucks were not themselves the situs of any labor
dispute, and Western 's premises , which were the situs of the primary dispute,
could readily be picketed.
The same conclusion was reached by the Board in Kanawha Coal Operators Asso-
ciation, 94 NLRB 1731 (enforced by the Court of Appeals for the Fourth Circuit,
198 F. 2d 391, cert. denied 344 U. S. 876) where the United Mine Workers, seek-
ing to organize the sawmill employees of suppliers of timber to coal mines, picketed
the suppliers ' trucks when they arrived at the mines . This activity , the Board held,
was a violation of Section 8 (b) (4) (A), stating:
In these circumstances and in view of the further fact that [ the suppliers']
mills rather than their trucks were the situses of the labor dispute , the Board
regards its holdings in Sterling Beverages , Inc., 90 NLRB 401, and Western,
Inc., 93 NLRB 336, here controlling rather than the Schultz Refrigerated Serv-
ice Inc., case , 87 NLRB 502 relied upon by the Respondents.
(c) The picketing by Respondent Local 802 in this case is not closely related,
either in time or location, to the broadcasting activities of Station WINS. As set
forth above , the picketing of the Yankee Stadium began at about noon , before the
gates are open to the public and when only employees of the various employers
engaged there are entering the ball park : the broadcasting activities of WINS, how-
ever , do not begin until just 5 minutes before game time which is 2 p . in. or 8:30
p. m. Moreover , while the broadcasts continue until 5 minutes after the game is
over, the pickets left their posts shortly after the game started . With respect to
location, the broadcasts originate in the press box and Gotham's employees use
only the "Press Gate" to gain admittance , but Local 802 's pickets covered every
gate and entrance. .
At the Parkway, Station WINS was not scheduled to go on the air until 9:55
p. m. but the picket line was set up there between 6 and 7 p. m.
The Respondents argue in their brief that there has been no violation of the Act
by reason of the Respondents ' picketing because there has been no actual strike,
work stoppage , or concerted refusal by the employees of any secondary employer.
The Trial Examiner finds no merit in this contention for the statute is aimed at
inducing and encouraging as well as accomplishment.
12 93 NLRB 336.
ASSOCIATED MUSICIANS OF GREATER NEW YORK 2183
The Respondents ' lack of success in acomplishing a stoppage cannot therefore be
utilized by them to avoid the consequences of their conduct.12
Parkway yielded to the Respondents before its employees had an opportunity to
see the picket signs . Locke's fear that in Parkway's neighborhood "nobody but no-
body crosses the picket line," surely included Parkway's employees whose services
were necessary to its enterprise.
Major Sutherland was a member of the Union, as were all his employees, the
band musicians . The Major was also an independent contractor holding a contract
he was anxious to fulfill. In the light of Manuti 's testimony , had the Major not
obeyed the Respondents ' "suggestion ," and attempted to march the Seventh Regi-
ment Band across the picket line he would have been faced with a nonmilitary re-
fusal to obey orders.13
Respondent Manuti was quite sure of this as witnessed by his testimony as to the
band 's crossing the picket line:
He [Sutherland ] wouldn 't if I order him to , he wouldn't . That goes for
Major Sutherland and his whole band.
Final Conclusions
By the acts and conduct of the Respondents in picketing the Yankee Stadium and
the Parkway Rink on and after April 10, 1954 , as herein found , the Respondents
have induced and encouraged employees of Yankees , River, Allied, Stevens, Park-
way, and of the companies which do business with them to engage in strikes or con-
certed refusals in the course of their employment to perform services for their
respective employers and an object of Respondents ' conduct was and is to force
or require Yankees, River, Parkway, and other employers to cease doing business
with Gotham . The said conduct is violative of the Act, more particularly Section
8 (b) (4) (A) thereof. The Trial Examiner so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above , occuring in connection with the
operations of the Charging Party have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and such of them as have
been found to constitute unfair labor practices , tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated Section 8 (b) (4) (A) of the
Act, it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Gotham Broadcasting Corporation (Gotham), New York, New York, is a
corporation engaged in commerce within the meaning of the Act.
2. The Respondent Associated Musicians of Greater New York, Local 802, Amer-
ican Federation of Musicians , AFL, is a labor organization within the meaning of
Section 2 (5) and 8 (b) of the Act, and at all times material herein has been and is
now engaged in transacting business and in promoting and protecting the interests
of its employee members.
3. The Respondent Al Manuti is, and at all times material herein has been , presi-
dent of the Respondent Local 802 and an agent thereof within the meaning of Sec-
tions 2 (13) and 8 (b) of the Act.
2International Brotherhood of Electrical Workers, Local 501, et al ., v. N. L. R. B.,
341 U. S 694; N. L R. B v Denver Building and Construction Trades Council, 193 F.
2d 421, 424 (C. A. 10).
is The Trial Examiner is fully mindful of Elliott v. General Drivers, Warehousemen &
Helpers Local Union No . 968, et at., 123 F. Supp. 125 U. S. D C. S. D. Texas, which is on
"all fours" with the instant matter. The court's opinion contains a scholarly discussion,
of the law in point.
'2184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By engaging in picketing the premises of Yankees, called Yankee Stadium and
the premises of Parkway called rink or Parkway Arena in connection with their
dispute with Gotham the Respondents have induced and encouraged the employees of
Yankees and Parkway and various employees of employers doing business with Yan-
kees and Parkway and of other employers to engage in, strikes or concerted re-
fusals in the course of their employment to use, process, transport , or otherwise
handle or work on goods, articles , materials, or commodities , or to perform services
for their respective employers, an object of Respondents' conduct being to force or
require said River and Parkway to cease doing business with Gotham, and to force
or require the other employers who normally do business with River and Parkway, to
cease doing business with River or Parkway, the Respondents (Local 802 and its
agent, Al Manuti), have engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
NATIONAL CARBON COMPANY, A DIVISION OF UNION CARBIDE AND CAR-
BON CORPORATION ( EDGEWATER WORKS) and UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, CIO . Case No. 8-CA -995. De-
cember 30, 1954
Decision and Order
On August 26, 1954, Trial Examiner James A. Shaw issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief. The Respondent's request for oral
argument is hereby denied as the record, including the exceptions and
brief, adequately presents the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts the Trial
Examiner's findings, conclusions, and recon_mendations, with the fol-
lowing additions :
The Trial Examiner found that the Respondent had refused to
bargain with the Union in violation of Section 8 (a) (5) and (1)
of the Act. The Respondent admits that it had refused to bargain
with the Union, but contends that the Board made an erroneous de-
termination of the appropriate unit in the representation proceeding.
The Respondent further contends that the Trial Examiner erred in
adopting the Board's findings, and in refusing to permit the Respond-
ent to adduce further evidence with respect to them. We have con-
sidered the Respondent's contentions and offers of proof and find them
to be without merit.
I National Carbon Company, a Division of Union Carbide and Carbon Corporation (Edge-
water Works), 107 NLRB 1486.
110 NLRB No. 270.