Associated Musicians of Greater New York

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 559 (N.L.R.B. 1976)

ASSOCIATED MUSICIANS OF GREATER NEW YORK 559
Associated Musicians of Greater New York, Local which page shall not be encumbered by any other
802, American Federation of Musicians , AFL-CIO written material. In addition, the duly signed notice
(Huntington Town House, Inc.) and National Asso- shall be mailed to all catering establishments with
ciation of Orchestra Leaders. Cases 29-CE-25, 29- which members of Respondent have had engage-
CC-433, and 29-CE-30 ments within the last 12 months for posting, should
June 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On January 7, 1976, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondent and
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Asso-
ciated Musicians of Greater New York, Local 802,
American Federation of Musicians, AFL-CIO, New
York, New York, its officers, agents, and representa-
tives, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order, as so modi-
fied.
Substitute the following for paragraph 2(a) of the
Administrative Law Judge's recommended Order:
"(a) Post at its office, place of business, and meet-
ing places, copies of the attached notice marked
"Appendix."83 Copies of said notice, on forms pro-
vided by the Regional Director of Region 29, shall,
after being duly signed by Respondent's representa-
tive, be published in six consecutive issues of "Alleg-
ro" on the final page of that official publication,
they be willing; and the duly signed notice shall be
posted by Respondent immediately upon receipt
thereof, and shall be maintained by it for 60 consecu-
tive days in all places where notices to its members
are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, de-
faced, or covered by any other material."
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
In finding that Respondent violated Sec 8(b)(4)(ii )(B) by its threat to
picket the mall, we do so wholly on the basis that such threat , by its breadth,
contemplated picketing of the entire shopping center and any employer,
person , or individual working or employed there without regard to their
connection with the primary here United Brotherhood of Carpenters and
Joiners of America, AFL-CIO Local No 639 (American Modulars Corpora-
tion), 203 NLRB 1112, fn 1 (1973). Accordingly, we find it unnecessary to
consider the Administrative Law Judge 's discussion of the Supreme Court's
decision in N L R B v Fruit and Vegetable Packers and Warehousemen, Lo-
cal 760, and Joint Council No 28 of IBT (Tree Fruits Labor Relations Com-
mittee, Inc ), 377 U.S. 58 (1964), commonly referred to as the Tree Fruits
decision
2 In view of our finding of similar violations in other recent cases, Associ-
ated Musicians of Greater New York, Local 802, A FM, AFL-CIO ( Random
Travel, Inc), 171 NLRB 1106 (1968 ), Associated Musicians of Greater New
York, Local 802 (National Association of Orchestra Leaders), 176 NLRB 198
(1969), Associated Musicians of Greater New York, Local 802, American Fed-
eration of Musicians, AFL-CIO (Huntington Town House, Inc), 203 NLRB
1078 (1973), demonstrating Respondent 's proclivity to violate the Act in the
same and similar respects as found herein , we shall broaden the Order here-
in
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART , Administrative Law Judge:
These consolidated cases were heard at Brooklyn, New
York, on July 21 and 22, 1975, pursuant to charges filed by
the National Association of Orchestra Leaders,' herein
called the Charging Party. The complaint , as issued on
May 30, 1975, alleges that the Respondent, Associated Mu-
sicians of Greater New York, Local 802, American Federa-
tion of Musicians , AFL-CIO, herein called the Respon-
dent Union, with the Huntington Town House , Inc.,'
herein called Huntington, and Vogue Restaurant , Inc.,3
herein called Vogue, respectively , maintained and enforced
i The charges in Cases 29-CE-25, 29-CC-433, and 29-CE-30 were filed
on August 6 and October 16, 1974, and on April 28, 1975 , respectively
2 In Case 29-CE-25
3 In Case 29-CE-30
225 NLRB No. 74
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illegal "hot cargo" agreements , arrangements or under-
standings in violation of Section 8(e) of the National Labor
Relations Act, as amended , under which only members of
the Respondent Union were permitted to provide musical
services to patrons of Huntington and Vogue . The consoli-
dated complaint further alleges that the Respondent Union
also violated Section 8 (b)(4)(ii)(B) of the Act 4 by threaten-
ing, coercing , and restraining the Queens Center Mer-
chants Association , Inc., a neutral employer , to force and
require that Association to cease doing business with Bob
Chevy Orchestras , with whom the Respondent Union had
a labor dispute.'
All parties appeared and were afforded full opportunity
to be heard , to examine and cross -examine witnesses, to
argue orally, and to file briefs .' Upon the entire record of
the case , 7 and from my observation of the witnesses and
their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Huntington, a New York corporation, has its principal
office and place of business in the Village of Huntington
Station , where it is, and has been at all times material here-
in, engaged in providing catering facilities for public and
private social affairs, including food, beverage, and related
services. During the past year, which period is representa-
tive of its annual operations generally, Huntington, in the
course and conduct of its operations, derived gross reve-
nues therefrom in excess of $500,000, and caused to be
transported and delivered to its Huntington Station facility
foodstuffs, beverages, and other goods and materials val-
ued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and delivered
to its place of business in interstate commerce directly
from States of the United States other than the State in
which it is located.
Queens Center Merchants Association, Inc., herein
called the Association, is a nonprofit New York corpora-
4 In Case 29-CC-433
5 Chevy is not a member in good standing of the Respondent Union
6 The General Counsel and Respondent argued orally Briefs were re-
ceived from the Respondent and Charging Party
7 In addition to the Respondent Union , the consolidated complaint also
named Huntington and Vogue as parties respondent in Cases 29-CE-25
and 29-CE-30, respectively Prior to the opening of the hearing , the Region-
al Director recommended that the Board approve a formal settlement stipu-
lation, entered into by and between Huntington and Vogue and the Charg-
ing Party , which provided , inter aim, that Huntington and Vogue would
cease entering into, maintaining , enforcing , or giving effect to their re-
spective alleged agreements , arrangements , or understandings with the Re-
spondent Union, whereunder only members of the Respondent Union are
permitted to conduct orchestras or bands or to provide musical services to
patrons of Huntington or Vogue The settlement stipulation which also pro-
vided for the entry of a consent order by the Board and a consent judgment
by any appropriate United States court of appeals, and pursuant to which
the parties waived all further proceedings, was approved by the Board on
October 9, 1974 In accordance with the General Counsel's motion, the
caption of this proceeding has been amended to remove Huntington and
Vogue as parties respondent
tion with its principal office and place of business at 90-15
Queens Boulevard, Rego Park, New York, in the Queens
Center Mall, herein called the Mall, where it is, and has
been at all times material, engaged in promoting the busi-
nesses of its members located at the Mall , which members
include Abraham & Straus, Division of Federated Depart-
ment Stores, Inc., herein called A & S; Ohrbach's; and
Herman's World of Sporting Goods, herein called
Herman's, which are located at 90-01, 90-51, and 90-15
Queens Boulevard, respectively, in the Mall.
At all times material herein , A & S has maintained a
place of business in the Mall at 90-01 Queens Boulevard,
Rego Park, Queens, New York, and other places of busi-
ness in the State of New York, where it is engaged in the
retail sale of clothing, household appliances , cosmetics,
jewelry, and related products. During the past year, which
period is generally representative of its annual operations,
A & S, in the course and conduct of its business operations,
derived gross revenues therefrom in excess of $500,000,
and purchased and caused to be transported to its New
York places of business clothing and other goods and ma-
terials valued in excess of $50,000, of which goods and
materials valued in excess of $50 ,000 were transported and
delivered to its places of business in interstate commerce
directly from States of the United States other than the
State in which it is located.
At all times material herein , Ohrbach's has maintained a
place of business in the Mall at 90-51 Queens Boulevard,
Rego Park, Queens, New York, and other places of busi-
ness in the State of New York, where it is engaged in the
retail sale of clothing and related products. During the past
year which period is representative of its annual operations
generally, Ohrbach's, in the course and conduct of its busi-
ness operations, derived gross revenues therefrom in excess
of $500,000, and purchased and caused to be transported
to its New York places of business clothing and other
goods and materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000 were trans-
ported and delivered to its places of business in interstate
commerce directly from States of the United States other
than the State in which it is located.
At all times material herein, Herman 's has maintained a
place of business in the Mall, at 90-15 Queens Boulevard,
Rego Park, Queens, New York, and other places of busi-
ness in the State of New York, where it is engaged in the
retail sale of sporting goods and related products. During
the past year, which period is generally representative of its
annual operations, Herman 's, in the course and conduct of
its business operations , derived gross revenues therefrom in
excess of $500,000, and purchased and caused to be trans-
ported to its New York places of business sporting goods
and other goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its places of business in
interstate commerce directly from States of the United
States other than the State in which it is located.
Robert Ciavolino, known professionally as, and herein
called, Bob Chevy, is and has been at all times material
herein an individual proprietor doing business under the
name and trade style of the Bob Chevy Orchestras. At all
times material herein , Chevy has maintained his principal
ASSOCIATED MUSICIANS OF GREATER NEW YORK
office and place of business in Brooklyn, New York, where
he is, and has been at all times material herein, engaged in
providing musical entertainment and related services.
Vogue, a New York corporation, has maintained its
principal office and place of business at the Skyway Hotel,
132-10 South Conduit Avenue, South Ozone Park, Queens,
New York, where it is, and has been at all times material
herein, engaged in the operation of a restaurant and
lounge, providing food, beverages, and entertainment for
the general public.
Gateway Hotel Associates, d/b/a Skyway Hotel, herein
called Skyway, is a partnership with a place of business at
the Skyway Hotel, 132-10 South Conduit Avenue, South
Ozone Park, Queens, New York, where it is, and has been
at all times material herein, engaged in the operation of a
hotel for the general public.
Vogue and Skyway conduct their operations in such a
manner as to supplement each other and convey to the
public the impression that they are both integral parts of a
single enterprise.
During the past year, which period is generally represen-
tative of their annual operations, Vogue and Skyway, in the
course and conduct of their restaurant and hotel opera-
tions, derived combined gross revenues therefrom in excess
of $500,000, and Vogue purchased and caused to be trans-
ported and delivered to its restaurant, liquor, food, and
other goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of $50,000
were transported and delivered to it, and received from
other enterprises located in the State of New York, each of
which other enterprises had received the said goods and
materials in interstate commerce directly from States of the
United States other than the State in which it is located.
Vogue and Skyway, and each of them, are and have
been at all times material herein, employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Huntington is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Association, A & S, Ohrbach's, Herman's, and each
of them, are and have been at all times material herein,
persons engaged in commerce and in industries affecting
commerce within the meaning of Sections 2(1), (6), and (7)
and 8(b)(4) of the Act.
Bob Chevy is, and has been at all times material herein,
a person within the meaning of Sections 2(1) and 8(b)(4) of
the Act.8
8 Although the consolidated complaint did not set forth jurisdictional
allegations as to whether Del Castile, an orchestra leader, and Jeff and Phil,
a musical duo, are persons within the meaning of Secs 2(l) and 8(b)(4) of
the Act, a determination of the same is necessary as the General Counsel
contends that the unwritten "hot cargo" agreements allegedly in effect be-
tween the Respondent Union and Huntington and Vogue, respectively,
were enforced against these parties From the nature of the 8 (e) violations
alleged, it is necessary that a determination be made as to whether Castile
and/or Jeff and Phil were self-employed persons or were respectively em-
ployees of Huntington and Vogue within the meaning of Sec 2(3) of the
Act, as Sec 8(e) proscribes only accords whereby an employer agrees to
cease doing business with "any other person," as distinguished from that
employer's own employees However, the record of this proceeding revealed
that both Castile and Jeff and Phil, who will be described in greater detail,
II. THE LABOR ORGANIZATION INVOLVED
561
The Respondent Union is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The American Federation of Musicians, AFL-CIO,
herein called A.F.M., the parent organization of the Re-
spondent Union herein, and its various affiliated local
unions have engaged in extensive litigation before the
courts and the Board with the Charging Party on a series of
matters arising around the country.
Local 802, A.F.M., the Respondent herein, has also been
party to a series of legal actions involving the Charging
Party herein.10 The decision cited by the General Counsel
as most relevant to the instant matter is Associated Musi-
cians of Greater New York, Local 802, American Federation
of Musicians, AFL-CIO (Huntington Town House, Inc.),"
issued on June 1, 1973, where it was found that the Re-
spondent Union had violated Section 8(e) of the Act in
that with Huntington 12 it had maintained and enforced a
clause in Huntington's contracts 13 with patrons that only
Local 802 musicians "shall be employed on Huntington's
premises." It was also found that Local 802 had violated
Section 8(b)(4)(ii)(A) and (B) of the Act, when, in the pres-
ence of management representatives of Huntington, a busi-
ness representative of the Respondent Union threatened to
"pull every musician out of the the [Huntington] building"
and also call out the unionized waiters unless he were al-
infra, are the proprietors of their respective enterprises and garner income
from selling musical services to purchasers for a price Accordingly, I find
that they are self-employed persons within the scope of Secs 2(l) and
8(b)(4) of the Act Associated Musicians of Greater New York, Local 802,
A FM, AFL-CIO (National Association of Orchestra Leaders), 176 NLRB
198, 199 (1969) In reaching this conclusion in the absence of a supporting
allegation in the complaint, it is noted that the Respondent Union, pursuant
to a stated intent to proceed to a determination herein on the merits,
amended its answer at the hearing to admit the jurisdictional allegations
contained in the complaint The Respondent Union also did not seek to
challenge the applicability of the alleged 8(e) violations as they might relate
to Castile or Jeff and Phil or of other relevant parties, on jurisdictional
grounds As the above indicated omissions constitute inadvertent errors cor-
rected by the record, and have not prejudiced the stated positions of the
Respondent , they are hereby corrected
9 Charles Peterson, treasurer of the Charging Party, testified at the hear-
ing that it is a function of his organization to aid conductors or bandleaders
who feel that their rights may have been adversely affected by actions taken
by the A F M in various parts of the country Such individuals would be
assisted in the filing of charges with the National Labor Relations Board
and with the institution of court litigation Peterson stated that during the 2
years prior to the instant hearing, he filed approximately 50 charges with the
Board against the A F M
'()See, inter alia, Associated Musicians of Greater New York, Local 802,
A FM (Dante Caterers, Inc), 212 NLRB 645 (1974), Associated Musicians
of Greater New York, Local 802, A FM, AFL-CIO (National Association of
Orchestra Leaders), 176 NLRB 198 (1969), Associated Musicians of Greater
New York, Local 802, A FM, AFL-CIO (Random Travel, Inc, et al,), 171
NLRB 1106 (1968)
i 1203 NLRB 1078 (1973)
12 As in the present case, Huntington signed a settlement agreement that
was approved prior to the opening of the hearing therein
13 That decision noted that the disputed clause had appeared in
Huntington's contracts with its patrons for at least 12 years
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowed to enter the room where a private affair was in pro-
gress in order to check on the union standing of the musi-
cians who were playing for a nonunion leader. The busi-
ness representative also threatened to take similar future
action if the nonunion bandleader were to continue to play
on the next day. It was found that the foregoing and like
conduct was violative of Section 8(b)(4)(ii)(A) of the Act in
that an object of the threats was to compel Huntington to
maintain its agreement to employ only members of Local
802 on its premises . The determination that an object of
the same conduct was to compel Huntington and other
persons (including the patrons of the nonunion bandleader
in question) to cease doing business with the said nonunion
bandleader resulted in a finding that Section 8(b)(4)(ii)(B)
of the Act also had been violated.
B. The Alleged Violations of Section 8(e) of the Act
1. The events at the Huntington Town House
Huntington, which maintains 11 ballrooms for the cater-
ing of weddings, bar mitzvahs, business meetings, and
other events, contracts with patrons for their use. Typical-
ly, Huntington will provide patrons with banquets served
The Respondent Union, while not disputing that such
agreements would be violative of the Act, if extant, denied
their existence at Huntington and Vogue and introduced
evidence to show that nonunion musicians regularly per-
formed on the premises of those employers during the
times relevant herein. In addition, the Respondent Union
contends that Huntington, in particular, did not favor the
Respondent Union over a rival union by limiting access to
its premises only to the Respondent Union's representa-
tives.
Del Castile 16 testified that in accordance with a contract
he had entered into on October 16, 1973, he appeared at
Huntington's Brentwood Room at about 8 p.m. on July 28,
1974, with a group of musicians,17 to provide the musical
services at a wedding reception.
That evening at 9:20, Joseph Messina, a business repre-
sentative of the Respondent Union,18 entered the room.
According to Castile, while the band was playing a rock
number, Messina approached, inserted himself between the
band and the guests at the affair and shouted an inquiry
(F) To render services or contract to render services in any place or for
any employer declared unfair by the Executive Board of this Local or
the President or International Executive Board of the American Feder-
ation of Musicians,
by its own staff of bartenders, dining room and kitchen
personnel. However, Huntington does not employ musi-
cians or have a collective-bargaining agreement with the
Respondent Union. Those patrons who wish to have music
played at their events must contract independently for mu-
sical services. Each ballroom contains a bandstand, piano,
and facilities suitable for use by a musical group.
From the events to be described below, the General
Counsel and Charging Party contend that the Respondent
Union and Huntington entered into and enforced an un-
written "hot cargo" agreement, arrangement, or under-
standing in violation of Section 8(e) of the Act. Under the
alleged agreement, only conductors, bandleaders, and mu-
sicians who are members of the Respondent Union may be
employed on Huntington's premises, thereby compelling
patrons to cease or refrain from doing business with musi-
cians who are not members of Local 802.14
The General Counsel also argued inferentially that the
alleged "hot cargo" agreements could be more readily im-
plied as such conduct would be consistent with the Re-
spondent Union's bylaws."
14 The "hot cargo" agreement alleged in the instant case, if found to exist,
would differ from the agreement fou1id unlawful in the prior case involving
the Respondent Union and Huntington, cited at 203 NLRB 1078, only in
that in the earlier case the contract between Huntington and its patrons
contained a written clause reading "Only union musicians of A F M , shall
be employed on these premises-Local 802 " In the instant case, the alleged
agreements are unwritten
15 The General Counsel marked the following bylaws of the Respondent
Union as relevant
ARTICLE IV
Duties of Members and Penalties
SECTION I It shall be a violation and detrimental to the welfare of this
Local for a member to commit any one or more of the following acts,
all of which are hereby prohibited, viz
(H) To perform in or with a band or orchestra which is led or conduct-
ed by a non-member of the Union or in which a non-member plays an
instrument or performs any other work of a musician
a a a
(M) To engage or assist in engaging, or to advise or permit any one else
to engage or assist in engaging, any musician who is not a member of
this Local for any engagement, whether within or without our jurisdic-
tion
(W) To accept an engagement for or from any agency, person , or place
that is unfair to this Local or any agent not duly authorized by the
American Federation of Musicians
SECTION 3 Each Leader (Personnel Manager) or member in charge shall
be responsible for the good standing of each and every member work-
Ing on an engagement with him, and shall request every musician on
the engagement to produce his membership card
16 Del Castile is the professional name of William P Dell'Aquda, a mem-
ber of the Charging Party, who is generally a sideman or orchestra member,
but who also performs as a leader He was one of the persons adversely
affected by the Respondent Union's conduct in the earlier case involving
Huntington , cited supra Castile testified that he is also the administrator of
the Allied Musicians ' Union herein called A M U, an independent group
rivaling the Respondent , which operates out of Castile's own office Prior to
January 1975 , Castile had been an officer of the American Musicians'
Union, apparently a predecessor organization to the Allied Musicians'
Union , although the two groups had different executive boards The Ameri-
can Musicians ' Union was no longer active at the time of the hearing
17 Included in Castile's orchestra on the evening in question were Melvin
Finkelstein, professionally known as Mel Fields, Christopher Orlando,
Tony DiPaolo, and Martin Reisman Finkelstein , too, had been among
those adversely affected by the Respondent Union's conduct in the above-
cited case involving Huntington DiPaolo was identified in the record herein
as the president of A M U Finkelstein and Orlando gave testimony at the
hearing as to the July 28 incident at Huntington that was supportive of
Castile
18 In accordance with the stipulation of the parties at the hearing, I find
that at all times material herein Messina was an agent of the Respondent
Union within the meaning of Sec 2(13) of the Act
ASSOCIATED MUSICIANS OF GREATER NEW YORK
across the bandstand to Finkelstein 19 as to whether a con-
tract had been filed.20 Finkelstein replied that Messina was
disturbing the band's performance and asked him to leave.
As Messina did so, he stated that he would be back.
At 10:20 p.m., while the band was on break, Messina
approached Finkelstein who was standing with Castile and
Orlando and offered his business card, which Castile took.
Castile told Messina that they were not members of his
union and had no reason to file a contract. When Messina
replied that Castile had no right to be playing in that estab-
lishment, Castile asked whether the Respondent and Hunt-
ington had an agreement whereby only Local 802 musi-
cians could perform there. Messina answered, "Yes, they
did have such an agreement." Castile said, "Well, we're
here now. What are you going to do about it?" Messina
responded that he was going to let them go that time, but if
they ever wanted to play there again they would have to be
members of Local 802. That was the law; in 30 days, they
must join the Union or they could not play there again. In
response to Castile's query as to what would happen if they
should return without union membership, Messina an-
swered that there would be "trouble." Castile asked again
whether all this was happening because Local 802 and
Huntington had an agreement that only union musicians
could play for any private function that might take place
there. Messina repeated that they had such an agreement.
Castile then turned to his musicians and told them that,
apparently, if they wanted to avoid trouble in the future,
they would have to join this union. Castile, with his musi-
cians nodding approvingly, told Messina that they would
do that the first thing next week. Messina agreed that that
was what they would have to do, and departed.
Castile then asked to speak to Huntington's manager In
response to this request, Anthony Ciafardini, banquet
manager ,21 subsequently appeared. In the presence of
Finkelstein and Orlando, Castile described the incident
with Messina as set forth above and asked if, in fact, it was
correct that only Local 802 musicians could play at Hunt-
ington. Ciafardini replied that that was correct, Hunting-
ton was a "union house." Castile, who apparently had
gained experience with this type of questioning from the
earlier case, again asked if he correctly understood that
Huntington and Local 802 have an agreement that only
Local 802 musicians may play there for private functions.
Ciafardini repeated that there was such an agreement and
asked if the delegate had given the band permission to fin-
ish the job. Castile answered that as they obviously were
19 As Finkelstein was wearing a tuxedo of a different color than the others
it is contended that Messina thought that Finkelstein was the leader
20 The record revealed that in order to protect the pension and welfare
rights of its members the Respondent Union requires that notices of con-
tract engagements (contracts) must be filed with it by the leader employing
Local 802 musicians on forms provided by the Respondent Union By this
means, the Respondent Union is informed of the names and card numbers
of the musicians employed to enable the Respondent to ensure that the
proper pension and welfare payments are made on their behalf by the lead-
ers Compliance with this requirement is enforced by the Respondent
Union's business representatives as they visit the various jobs
21 In accordance with the stipulation of the parties at the hearing, I find
that Ciafardini, one of six managers in the banquet department , is a supervi-
sor and agent of Huntington within the meaning of Sec 2 (l 1) of the Act
Ciafardini testified that , on occasion , he serves as the manager of the entire
Huntington facility
563
still there he assumed that they had permission to finish the
job. He then asked Ciafardmi whether, in the eve,it that he
and his musicians should return to perform there without
Local 802 membership, Huntington or the Union would
give them trouble. Ciafardini answered that they had better
straighten that out with Local 802. Ciafardini once more
affirmatively answered Castile's question about the exis-
tence of an agreement. Castile thanked him for his time
and, with his musicians, returned to finish the engagement.
From that evening to the time of the hearing, approximate-
ly 1 year later, Castile and his band have not returned to
perform again at Huntington.
Messina, called as a witness by the Respondent, testified
that he has been a business representative of Local 802
since August or September 1973, and that his duties in-
clude visits to different clubs and catering houses to learn
whether the engagement contracts have been filed with the
Respondent so that the musicians would be covered by
their pension and welfare fund.22
Messina and Neil Klein,23 a Locr l 802 bandleader who
testified as an eyewitness, denied the account of the July 28
incident as related by Castile, Finkelstein, and Orlando.
Messina asserted that on the evening in question, in accor-
dance with his practice, he had approached the bandstand
at a time when the band was not playing and asked if a
contract had been filed. When he was told that it was a Del
Castile Orchestra and nonunion, he replied, "Fine. Have a
nice night, gentlemen." As he was leaving, one of the musi-
cians told him, "You never give up do you," and left. Ac-
cording to Messina and Klein, the foregoing constituted all
that was said.
Ciafardini, in his testimony, recalled that on or about
July 28, 1974, he had been summoned to speak to some
musicians, but denied knowing or recognizing Castile, as-
serting an inability to recognize Castile, although the latter
was indicated to him in the courtroom during the hearing.
The musicians had told him that a man had just come into
the room and talked to them about a union. He did not
recall what was said. Ciafardini related that he had asked
the musicians if he was stopping they. from playing. When
they said "no," he told them to play. Ciafardini recalled
stating at the time that he had not hired them; their hosts
had hired them and that they should .Jo what their hosts
wanted them to do. If the hosts wanted them to play, they
should play.
Ciafardini testified at first that he did not know the Re-
spondent Union. However, Ciafardini, thereafter, inconsis-
tently stated that he did not know whether he had seen any
delegates of the Respondent Union at Huntington prior to
July 28, 1974, but that after that date he would see such
delegates once a week or twice a month on Huntington's
22 Messina testified that during the past year, he visited Huntington's
premises on an average of five times each weekend-on Fridays and twice
on Saturdays and Sundays, respectively
23 Klein, whose band was performing that night in another of
Huntington's ballrooms, testified that earlier that evening he had been com-
pelled to ask Castile to stop disturbing Klein's organ player, then providing
music for the cocktail hour, by talking to him about the A M U , an incident
thereafter related to Messina Klein then ac. ompanied Messina to the
Brentwood Room , where Castile and his group were appearing Klein testi-
fied that while there he had witnessed Messina's conversation with the Cas-
tile group from a distance of about 25 feet
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises. Messina was the only Local 802 representative
that Ciafardini knew and contended that he had learned
Messina's last name only at the hearing.24
Union Representative Messina denied the existence of
an agreement between the Respondent Union and Hunt-
ington whereby only members of the Respondent Union
could perform at Huntington 25 and testified that during
his visits to Huntington he had frequently observed non-
union bands playing there-an average of two per visit 26
Messina also stated that his duties did not require him to
engage in on-the-scene discussions with nonunion musi-
cians of the type alleged. If Messina were to find a relevant
infraction, his function merely would be to report the same
to his supervisor at the Respondent Union's office. It
would then be the Respondent Union's responsibility to
take any subsequent action 21
Messina's testimony that nonunion leaders and musi-
cians frequently performed on Huntington's premises dur-
ing the relevant times was supported by Neil Klein, Jerry
Rainbow, and Richard Leiter, long-time members of the
Respondent Union, who respectively testified that during
their recurring engagements at Huntington they frequently
saw bands at work that they knew to be nonunion. Several
of these musical groups were named in the record. In addi-
tion, in support of the Respondent Union's position that its
representatives were not the only union agents to have ac-
cess to Huntington's premises, Leiter, Rainbow, and Klein
detailed organizational efforts made by Castile and others
among musicians on behalf of the A.M.U. on Huntington's
premises.28 Banquet Manager Ciafardini and Leiter testi-
fied, however, that for the most part, the Respondent
24 Ciafardmi testified that patrons who asked where they might hire musi-
cians to play at their events were advised of the existence of a referral office
operated by an independent concern on Huntington 's premises Ciafardmi
disavowed having knowledge as to whether that office only referred patrons
to musicians who are members of the Respondent Union or as to how the
various bands he had seen playing at Huntington were engaged
25 Messina also denied knowing who Del Castile was or that Castile had
been present at Huntington on July 28 , 1974, explaining that under industry
practice , if Castile had arranged for the engagement, a subleader could have
appeared in his stead to conduct a Del Castile Orchestra Messina persisted
in his testimony that he did not know Castile or that the latter had been
present even after the General General, during cross-examination , showed
him a document that he earlier, during the preliminary investigation by the
Board's Regional Office , had read and corrected in his own handwriting,
but had not signed In this document , Messina , inconsistent with his testi-
mony at the hearing that he had never seen Castile , related that when he
had approached the bandstand and asked if they had filed a contract with
the Union for that engagement one of the musicians replied that he was Del
Castile
26 In support of this testimony , copies of certain of Messina's engagement
reports during the relevant period were introduced into evidence Engage-
ment reports are small slips of paper on which Messina and other business
representatives routinely list musicians they encounter on jobs during visits,
showing the dates and location of the engagement These handwritten re-
ports which thereafter are filed in the Respondent Union's office , tended to
establish , taken in conjunction with Messina's testimony, that certain non-
union leaders and musicians were employed at various times at Huntington
One of these reports noted Castile's appearance at Huntington on July 28,
1974
27 In corroboration , Neil Klein testified that when on one occasion he
would call Messina's attention to the presence on nonunion bands at Hunt-
ington , Messina's standard reply would be that he could not do a thing
about it If they are not in the Union , they are not in the Union
28 However , there is no direct evidence that Huntington 's management
knew of the A M U literature and verbal approaches
Union's delegates have free access to Huntington's ball-
rooms.29
From my observation of the witnesses, noting their de-
meanor, the relative consistency of their testimony and the
past conduct of the parties as found by the Board, I credit
the testimony of Castile, Finkelstein, and Orlando that on
July 28, 1975, they were told by representatives of the Re-
spondent and Huntington, respectively, that, under an ex-
isting agreement between those parties, only members of
the Respondent Union could perform on Huntington's
premises. I also credit their testimony that Union Repre-
sentative Messina had that night informed them that, al-
though they would be allowed to complete that appear-
ance, should they return for a future engagement at
Huntington without acquiring membership in the Respon-
dent Union there would be trouble. However, although at
first impression it may appear inconsistent as tending to
contradict the existence of such an agreement, I also credit
the testimony of Klein, Rainbow, Leiter, and Messina, sup-
ported by the latter's engagement reports that during the
relevant period they frequently saw nonunion bands per-
forming at private affairs in Huntington's ballrooms.
Messina's above-noted insistent testimony that he not
only did not know that Del Castile was at the Huntington
Town House on July 28, 1974, but that he had never seen
him personally does not appear to be credible. In his un-
signed, but personally corrected, investigatory statement to
the Regional Office, Messina, contrary to his position at
the hearing, had related that when he approached the band
on the evening in question one of the musicians had specif-
ically identified himself as Del Castile. In addition, Neil
Klein, who had been called by the Respondent to corrobo-
rate Messina, testified that shortly before he accompanied
Messina to the Brentwood Room prior to Messina's con-
versation with Castile he told Messina of the A.M.U.'s or-
ganizational effort among his musicians that evening, and
his belief that the organizer, whom he identified in the rec-
ord as Castile, was in the Brentwood Room. Accordingly,
if Klein's testimony were to be accepted at face value,
Messina must have known at the time that he approached
the Castile band that it not only contained a musician who
was not a member of Local 802, but one who had just been
actively organizing on behalf of a rival union among the
Respondent Union's members. This alone should have
made the interview more significant from Messina's stand-
point. Klein's ability to overhear the conversation at the
Brentwood Room bandstand from his described distance
of about 25 feet would appear to be problematical.
Ciafardini was not credited in his denial that he had told
Castile and his musicians of the existence of the alleged
"hot cargo" agreement on July 28. He testified with ob-
vious reluctance, sought to keep his responses vague and
denied having any clear recollection of what was said when
he was summoned to speak to the musicians on July 28.
Ciafardini originally testified that he did not know the Re-
spondent Union, a position which he subsequently modi-
fied. His testimony as to whether he had seen Local 802
29 Leiter recalled that on one occasion during the preceding year, contrary
to general practice, he did see Huntington ' s management deny a Local 802
delegate access to one of its rooms
ASSOCIATED MUSICIANS OF GREATER NEW YORK 565
delegates on Huntington's premises prior to July 28, 1974,
also appeared to be less than direct.
Moreover, it is further noted that the conduct of the
Respondent and Huntington alleged herein is consistent
with that found in the earlier case. Accordingly, I credit the
testimony of Castile, Finkelstein, and Orlando that on July
28, 1974, they were told by agents of the Respondent
Union and Huntington that an agreement existed whereby
only Local 802 members could provide musical services on
Huntington's premises.
As noted, the evidence that other musicians and leaders
who were not members of the Respondent had performed
at Huntington during the period in question without being
challenged by the Respondent Union is not contradicted
and is credited. However, while a finding that an alleged
"hot cargo" agreement may not have been universally en-
forced is most certainly relevant to a consideration of
whether such an agreement in fact existed, it is not a pre-
requisite to a finding of an 8(e) violation that the alleged
"hot cargo" agreement be enforced on a nondiscriminatory
basis. The language of Section 8(e) proscribes the mere
entering into of such an agreement, and the enforcement of
a "hot cargo" agreement at all, against any other employer
or person, is unlawful. Nor does the language of Section
8(e) precondition a finding of an 8(e) violation upon a pre-
liminary determination that the disputed agreement had
been made in writing, as the statute prohibits such agree-
ments whether express or implied.
The critical issue herein, then, is whether on the evening
of July 28, 1974, Del Castile and members of his band were
informed by agents of the Respondent Union and Hunt-
ington, respectively, that the alleged agreement existed and
was being enforced as to them by the Respondent and
Huntington. From the evidence credited above, I find that
this, in fact, had occurred.30
2. The Vogue Restaurant incident
Vogue, a restaurant that regularly engages musicians,
operates in the Skyway Hotel in Queens, New York. Its
stock is principally owned by Sy Cohen, whose father-in-
law, Henry Cohen, is also an owner.31
The General Counsel and Charging Party contend that a
musical duo known as Jeff and Phil 32 were terminated
from their employment at the Vogue Restaurant because of
an alleged unwritten agreement between Vogue and the
Respondent that only musicians who are members of Local
802 can perform at Vogue's premises. The existence of such
an agreement is denied by the Respondent Union.
The record revealed that Jeff and Phil were referred by
the Carnegie Talent Agency 33 for an engagement at Vogue
10 This matter will be further considered below in the section entitled
"Analysis and Conclusions "
31 The record revealed that in Vogue's operation Sy Cohen is responsible
for the booking and management of talent, while Henry Cohen is custom-
aril' more involved in the administration of the restaurant itself
3 Jeff and Phil are the professional names of Jeffrey Tillman, guitarist,
and Helier Felipe, who plays the drums and sings
33 Carnegie Talent Agency, Great Neck, New York, is owned and operat-
ed by Arnold Klein, a member of the Respondent Union Klein's booking
agent-manager agreement, issued by the A F M under which license Klein
had served as a booking agent for members of the Respondent Union, had
been previously revoked by the Union as a result of an action brought
starting March 12, 1975. Jeff and Phil testified that on the
first night of their engagement at Vogue Sy Cohen told
them that the audience liked them very much and that they
would be there for a long time.34
They testified that on or about March 15 Cohen told
them that a new delegate from the Respondent's Union
had been coming around who, unlike the prior delegate,
was very determined. Cohen then asked if they were mem-
bers of Local 802. When Jeff and Phil answered that they
were not, Cohen said that when the union delegate eventu-
ally spoke to them he would tell them what to do. Jeff and
Phil stated that under their understanding they did not
have to be members of the Union to work anywhere. Ac-
cording to Tillman (Jeff), Cohen responded, "To play here,
you have to be a member of Local 802.1'35
On the evening of April 5, while Jeff and Phil were still
working at Vogue, Mel Jefferson, the other bandleader,
introduced them to Ray Cole, a delegate of the Respon-
dent Union.36 Cole, Jeff, and Phil proceeded to the lobby,
where Sy Cohen was seated, and their conversation took
place there, in Cohen's presence. Cole asked Jeff and Phil
if they were members of the Union. When Jeff and Phil
produced their membership cards in the Allied Musicians'
Union, Cole told Sy Cohen that he had to advise him that
Jeff and Phil were not members of Local 802. Jeff and Phil
responded that as far as they knew they did not have to be
members of Local 802 to work anywhere Cole agreed with
their statement, but said, "off the record," that he would
like to let them know that A.M.U. is a "bastard union,"
and made uncomplimentary remarks about Del Castile
and his own experiences when he had worked for Castile.
Cole then told Jeff and Phil that, if they wanted to advance
in their musical careers, they eventually would have to join
Local 802 in order to maximize their employment opportu-
nities. According to Jeff and Phil in their respective testi-
mony, Cole advised them that as they became better
known they would not be able to record or play the better
rooms because of their nonmembership. When Cole
stepped outside briefly to get some union literature, Sy Co-
hen asked Jeff and Phil why they had joined A M.U. They
replied that the A.M.U. would protect their interests and
was the only union they needed. When Cole returned, Co-
hen offered to buy him a drink and Jeff and Phil returned
to work. That was the last night they performed at Vogue.
Jeff testified that on Monday, April 7, 1975, about 1:30
p.m., Francine Flashner, the executive assistant at the Car-
negie Talent Agency, who had referred Jeff and Phil to
Vogue, told him via telephone that the duo had to be mem-
bers of the Respondent Union to continue to work at
Vogue and that Sy Cohen was waiting to hear whether Jeff
and Phil would join the Respondent Union. She gave Jeff
15 minutes to advise whether they were going to join Local
against him by two musicians for alleged underpayment Although his
booking license had been revoked, Klein continued to book musicians in his
capacity as a leader Jeff and Phil were referred to Vogue by Francine
Flashner, Klein's executive assistant
74 Sy Cohen too testified that he had been pleased by Jeff and Phil's work.
35 Felipe (Phil) described Cohen's response as being, "Yes, that is true,
but this is a union house "
36 In accordance with the stipulation of the parties at the hearing, I find
that Cole, at all times material herein, was an agent of the Respondent
Union within the meaning of Sec 2(13) of the Act
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
802 or lose the engagement. Jeff responded that he would
have to call and speak with Phil because he could not an-
swer for him. When Jeff succeeded in reaching Phil later
that afternoon, Phil, too, expressed his refusal to join the
Respondent Union. Jeff thereupon called Flashner and in-
formed her of their decision not to become members of
Local 802. Flashner replied, "Well, then, you know then
that the job is terminated."
Arnold Klein, president of Carnegie Talent, testified
that prior to Flashner's conversations with Jeff on April 7
he had received a call from Sy Cohen. After identifying
himself,37 Cohen told Klein that the union delegate had
been "down" and, inasmuch as Jeff and Phil were not
union, he possibly might have to let them go. Cohen stated
there was a possibility of (Vogue) being picketed if the men
were not taken out of the room and that he had an agree-
ment with Local 802 to use union men.38 Accordingly,
union men had to work the place. If it were all right with
the Union, he would keep Jeff and Phil on. However, Co-
hen stated he would want to change the groups in the room
every 4 weeks or so, but if they joined the Union he would
probably bring Jeff and Phil back because he "possibly"
would like to have them back.
Klein testified that after the above conversation with Co-
hen he m=tructed Flashner to call Jeff and Phil to de-
termine their union status. It was as a result of his April 7
telephone conversation with Flashner, which followed, that
Jeff learn°d of the termination of the Vogue engagement.
Jeff testified that on April 8, he called Flashner again
who verified that their engagement at Vogue was ended.
Del Castile, identified above as administrator of A.M.U.,
testified that on or about April 7, 1975, he received a tele-
phone call from Jeffrey Tillman who related to him the
events leading to Jeff and Phil' s termination by Vogue.
That night, Castile telephoned Vogue, asking to speak to
the owner. His call was given to Henry Cohen. Castile told
Henry Cohen that he was calling for the Allied Musicians'
Union and that that union was concerned because, as he
understood, two of their members (Jeff and Phil), who had
been working at his establishment, were to be discontin-
ued. He asked Cohen to reconsider and let the boys stay
on. Cohen, according to Castile, replied that they loved the
boys but there was nothing that they could do about it.
Castile asked that if they were satisfied with Jeff and Phil's
performance why mu; they discontinue their services. Co-
hen replied that he had no choice, Local 802 wanted only
their members playing in his establishment. Castile asked
whether, as the proprietor of Vogue, should he not have
control over decisions to hire and discharge. Cohen agreed,
but stated that he did not want any trouble with the Union.
When Castile asked what h: meant by "trouble," Cohen
37 Klein apparently had not spoken to Cohen before receiving that call
38 Although the Respondent introduced evidence seeking to discredit
Klein as a witness , noting his difficulties with the Union resulting in the
above-noted revocation of Klein's booking license and the existence of
other controversies between him and the Respondent Union , Sy Cohen
testified that he, in fact , did tell Klein that there was an agreement with the
Respondent Union under which only Local 802 members could perform
there Cohen , however , also testified that although he had said this to Klein,
no such agreement actually existed , and he had made this statement to
Klein merely to get the latter "off his back " Cohen 's testimony will be
described in greater detail and evaluated infra
told him that the Union said that it would put pickets out-
side his place unless he got rid of Jeff and Phil. When
Castile pressed him for additional details, Henry Cohen
told him that he was too busy to further discuss the matter
and suggested that Castile contact his partner, Sy Cohen,
who would be there the following day.
Castile and Charles Peterson, treasurer of the Charging
Party, both testified that they visited Vogue' s premises be-
tween noon and 1 p.m. on the next day, April 8, and asked
to speak to a representative of management. While waiting,
they had lunch there.
While Castile and Peterson were at the table, they were
joined by Sy Cohen. Castile asked Cohen to let Jeff and
Phil continue to work. Cohen answered that that was out
of the question. They could not work there then or at any
other time until they were members of Local 802. Castile
asked if the boys had been doing a good job. When Cohen
said that they were doing a very good job, Castile asked
why Cohen insisted that they join Local 802. Cohen an-
swered, "Because this is a Local 802 house." Castile asked
if Cohen had an agreement with Local 802 that only its
member musicians could perform at Vogue. Cohen replied
that he did not know if there was any agreement, they
didn't need an agreement. Castile then asked if Cohen per-
mitted Local 802 delegates to enter his establishment and
speak to musicians who are working there. Cohen replied
affirmatively. In response to Castile's question, Cohen stat-
ed that he would allow the Respondent Union 's delegates
to enter his premises and tell nonunion musicians that if
they wish to continue working there they must join Local
802, but that he would not let A.M.U. delegates past the
door. Castile told him that he was favoring one union over
another. Cohen responded that it was his place and he
could do what he liked. When Peterson threatened to file a
charge with the National Labor Relations Board, Cohen
left.
Castile and Peterson testified that after leaving Vogue,
they returned to Peterson's office where they decided that
Peterson should call the Carnegie Talent Agency while
Castile listened on an extension line. Accordingly, about 4
p.m. that day, with Castile on the extension, Peterson tele-
phoned Carnegie's office and spoke to "Fran" (Flashner),
who, in answer to a series of questions from Peterson, stat-
ed that she had "pulled" Jeff and Phil from Vogue because
they had refused to join Local 802. Cohen had no choice as
he had been told that there would be pickets in front of his
place if he did not get rid of the two musicians . Flashner
was indefinite as to when she might again refer Jeff and
Phil to Vogue.
Sy Cohen, called by the Respondent Union, vaguely re-
called having spoken to Klein at Carnegie Talent about
Jeff and Phil. While he had mentioned the possibility of
picketing, he did not mention names. He denied that any
representative of Local 802 had threatened him with pick-
eting if he did not let Jeff and Phil go, averring that the
only threat of picketing in connection with the incident
had come from Castile, who, during his and Peterson's
visit to Vogue, had told him that A.M.U. could very well
picket him if 39 he did not reinstate Jeff and Phil.
39 Oddly enough, Castile, who had testified with great preciseness and
detail in this proceeding, could not recall whether he had threatened to
ASSOCIATED MUSICIANS OF GREATER NEW YORK 567
Cohen testified that he had released Jeff and Phil be-
cause , while he considered them to be a good musical duo,
he had decided that the room required at least a trio. He
stated that this was one of the reasons he had given to
Klein for having terminated Jeff and Phil. Cohen explained
that it was in the nature of his business that musical groups
be changed because his customers wanted different sounds.
In addition, at that time, he had received requests from a
number of his patrons for a return engagement of Domin-
ick Santora's Orchestra, which he described as his "regular
band." 40 As noted, Cohen admitted that he told Klein that
he had an agreement with the Respondent Union whereby
only Local 802 musicians could perform at Vogue, but de-
nied the actual existence of such an accord. Cohen ex-
plained that he had made this statement to Klein in order
to get him to stop "bugging" him about Jeff and Phil.
Cohen also admitted telling Tillman during his engage-
ment that he would prefer it if Tillman belonged to a union
because he liked to have people who work for him belong
to a union , if possible, as they are more responsible 41 He
denied stating that Vogue was a union house, but, in any
event, the foregoing stated preference for union employees
is what he meant by "union house." Cohen also recalled
asking Jeff and Phil why they had joined the A.M.U. as
that union did not do anything for its members and that he
also had asked them to join Local 802.42
Henry Cohen testified that he had received a telephone
call from Castile, whom he did not know, but when asked
why Vogue had terminated Jeff and Phil, had merely re-
plied that their customers were requesting the return of the
Dominick Santora group again and there was nothing they
could do about it. Henry Cohen testified that Castile had
responded that his group could picket Vogue as well as
anyone else could, to which Cohen had replied by threat-
ening Castile. Henry Cohen, too, denied that Vogue had an
agreement with Local 802 that only its members could per-
form at Vogue.
Although the Respondent introduced additional evi-
dence tending to show that Klein had a history of confron-
picket Vogue However, it is not necessary to make a finding as to whether
A M U. threatened to picket Vogue as such conduct is not itself an issue in
this proceeding and is not prerequisite to a finding with respect to the
Resondent's conduct herein
Santora's group, all of whom were members of the Respondent Union,
had worked intermittently at Vogue for 2-1/2 years However, Cohen testi-
fied that he did not know whether all the musicians playing with a Local 802
leader, Mel Jefferson, appearing at Vogue at the time of the hearing, were
members of the Respondent Union but that, since Jeff and Phil's departure,
Vogue has employed certain nonunion musicians He denied that member-
shw in Local 802 is a condition of employment at Vogue
Later in his testimony, Cohen stated that when he had said that he liked
to have his musicians belong to a union, he was referring to Local 802 as
that was the only union that he knew
42 Cohen's recollection of Respondent Union Delegate Cole's April 5
meeting in his presence with Jeff and Phil was also quite short Cole had
described the benefits afforded by the Respondent Union to Jeff and Phil
who, in turn, had shown Cole membership cards in arother union He reluc-
tantly remembered having then told Cole that Jeff and Phil were only going
to be playing for a few more days after which his regular band was return-
ing Cole's response was that if they were going to be playing for a few more
days, what is the big deals Forget it' According to Cohen, Cole told him
that if he was happy with Jeff and Phil fine Cohen testified that Cole's
business visit to Vogue was the first by a Local 802 delegate in about 6
months
tation with the Respondent Union which would motivate
him to testify against the Union's interest,43 and that he is
otherwise unworthy of belief, there appears to be no basis
for not crediting Klein's testimony as to the events in the
instant case as they are essentially uncontradicted. Accord-
ingly, Sy Cohen corroborated Klein's testimony by admit-
ting that he, in fact, had told Klein when advising him of
Jeff and Phil's termination that an agreement did exist be-
tween Vogue and the Respondent Union that only musi-
cians who were members of Local 802 could perform on
Vogue's premises. Also at that time, prior to any contact
with Castile, Cohen conceded mentio:iing to Klein the pos-
sibility of Vogue being picketed. Sy Cohen also freely ad-
mitted at the hearing that he thought that Jeff and Phil had
performed well and that he had been satisfied with their
services. Cohen also supported the testimony of Jeff and
Phil by admitting that he had asked them why they were
not members of Local 802 and had urged them to join that
Union44
From my observation of the witnesses as they testified at
the hearing,45 noting also the timing of the termination of
Jeff and Phil, which occurred almost immediately after
they had shown Cole their A.M.U. membership cards, the
fact that their aborted engagement was inconsistent with
Jeff and Phil's satisfactory work performa'ice, the extent to
which Sy Cohen had corroborated the testimony of Klein,
Jeff, and Phil by admitting the existence of the alleged
agreement and by other testimony as discussed above, and
the adverse inference drawn herein from the failure of the
Respondent Union to call Ray Cole 46 as a witness to these
events, I do not credit Cohen's denials that a "hot cargo"
agreement in fact existed between Vogue and the Respon-
dent Union.47
43 In addition to the above-noted difficulties which had resulted in the
revocation by Local 802 of Klein's booking license, the record revealed that
he has been brought up on charges before the Respondent Union for his
failure to have filed contracts for two engagements he had booked as a
leader
44 Although, as noted, there is testimony that Jeff and Phil were terminat-
ed almost immediately after they showed Respondent Union Delegates Ray
Cole their A M U. membership cards, that Sy Cohen had informed Arnold
Klein of the existence of the alleged "hot cargo" agreement between Vogue
and Local 802, and that that Union would picket Vogue to enforce the
agreement, the Respondent Union failed to have its delegate, Cole, testify at
the hearing These circumstances give rise to an inference that if such testi-
mony had been elicited, it would have been adverse to the Respondent
Union See the discussion in International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UA W) [Gyrodyne Co
of America[ v N L R B, 459 F 2d 1329 (C A D C, 1972), cited with approv-
al in Sheldon Pontiac, Inc, 199 NLRB 950, 954 (1972)
45 Sy Cohen testified with great reluctance and impreciseness, frequently
asserting his inability to recall relevant events and the extent of his partici-
pation therein Inter aIm, he neither denied nor recalled whether he also had
told Castile and Peterson Luring their meeting that musicians who per-
formed at Vogue had to be members of Local 802 Accordingly, I do not
credit Cohen's testimony to the extent that it conflicts with that rendered by
other witnesses in this proceeding
46 As noted, no representative of the Respondent Union even appeared to
dens the existence of the alleged unlawful agreement with Vogue
4 It appears that Henry Cohen, who testified more forthrightly than did
his partner, Sy Cohen, should be credited as to the substance of the April 7
telephone conversation with Castile, whose account of the incident ap-
peared a bit too pat That Henry Cohen would so unburden himself to a
stranger on the telephone in the complete manner described by Castile ap-
pears to be most unlikely and is contrary to my observation of Henry Cohen
Continued
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Violation of Section 8(b)(4)(ri)(B) of the Act
The Alleged Threat to Picket at the Queens Center Mall
The General Counsel contends that the Respondent
Union threatened the Queens Center Merchants Associa-
tion , Inc.,48 herein called the Association, a neutral em-
ployer, that it would engage in unlawful common situs
picketing at the Queens Center Mall, herein called the
Mall, a shopping center, to compel the Association to cease
doing business with an orchestra whose nonunion leader
was under contract with the Association to provide con-
certs at the shopping mall. Although the picketing allegedly
threatened did not occur, the General Counsel further ar-
gues that an unusually large number of delegates from the
Respondent Union appeared at the concert, with a coer-
cive effect. The Respondent denied the foregoing allega-
tions, except that it conceded the presence of three of its
delegates at the concert.
Yolanda N. Goldstein, advertising and promotion direc-
tor of the Association, testified that in 1974, she entered
into a contract on behalf of the Association with Bob
Chevy,49 an orchestra leader. Under the terms of this
agreement , Chevy and his orchestra were to perform a ser-
ies of concerts at the Mall on four consecutive Tuesday
as a blunt businesslike witness Nonetheless , Henry Cohen was not the cen-
tral witness that Sy Cohen was and participated in fewer of the relevant
events It may be that certain nonunion leaders and musicians have per-
formed at Vogue during the times relevant herein without being challenged
by the Respondent, as was testified to by Sy Cohen As discussed above in
connection with the present Huntington matter, evidence to that effect
would be but one factor to be considered in seeking to determine whether
the alleged "hot cargo" agreements , in fact , exist However , a conclusion
that certain nonunion musicians have performed at Vogue would not neces-
sarily preclude a finding that an agreement of the type alleged by the Gener-
al Counsel had been enforced in a discriminatory basis against the immedi-
ate parties herein, whether because of their A M U membership or for some
other reason In the instant matter , the weight of the credited testimony, in
my view , is supportive of the General Counsel's position
48 As set forth above in the jurisdictional discussion, the Association, lo-
cated in the Queens Center Mall, Queens, New York, is engaged in promot-
ing the businesses of its members , which are various firms with retail stores
situated in the Mall Member firms include Abraham & Straus , Herman's
World of Sporting Goods, and Ohrbach's There are also about 39 satellite
retail stores in the Mall, operated by small merchants The Mall has four
shopping levels and a six-level parking garage The only direct entrance to
the Mall is on Queens Boulevard at its intersection with Woodhaven Boule-
vard
49 As noted, Bob Chevy is the professional name of Robert Ciavolino
Chevy testified that he has had a history of differences with the Respondent
Union at various times since about 1956 when he first became a member of
Local 802 Accordingly, his membership status had changed from time to
time, at the will of the Respondent , and he was not certain of his member-
ship at the time of the hearing Although Chevy was party to a collective-
bargaining agreement with the Respondent Union, executed May 11, 1973,
and effective retroactively from March 26, 1972, to March 25, 1975, pur-
suant to which he recognized Local 802 as the bargaining representative for
all musicians to be employed by him in the single engagement field, he
related that at different intervals since the execution of the agreement he has
had discussions with representatives of the Respondent Union as to whether
he was employing its member musicians As of the time of the hearing, no
new contract with the Respondent Union had been negotiated to replace
the one that had expired on March 25, 1975 In addition, Chevy testified
that as of the time of the hearing, his orchestras were being sued for alleged
nonpayment of fringe benefit contributions on behalf of musicians he had
employed This suit arose under the terms of the then unexpired collective-
bargaining agreement with the Respondent Union
evenings , commencing on July 9, 1974, to provide musical
entertainment for the shoppers.
Goldstein testified that during the afternoon of July 9,
the day of the concert, she received a telephone call from
Al Brown,50 who identified himself as a delegate of the
Respondent Union. Brown asked if Goldstein was having
concerts at the Mall. Goldstein said "yes" and, in response
to her inquiry, was told that Brown had learned of the
concerts from the newspaper advertisements. Brown asked
if there were going to be union members there. Goldstein
answered that she did not know or care. Brown asked how
the contract (with Chevy) read, but Goldstein declined to
divulge that information. Brown stated that he believed
that 90 percent of the Mall shoppers were union members,
and if they found out that the Association was not having
union members as performers in the Mall these customers
would no longer shop there. Brown also told Goldstein that
if she did not have union members at the concert he would
picket right out in front of the Mall on Queens Boule-
vard.51 Goldstein replied that she was not aware of any law
that required her to have union members at the concerts
and asked Brown if that was a threat. Brown answered that
unions didn't have to threaten because they are too strong.
Goldstein replied that she could only consider that to be a
threat.
According to the testimony of Chevy and his secretary,
Josephine Spinelli, the latter received a telephone call at
approximately 2 p.m. on July 9 from Goldstein.52 Gold-
stein told Spinelli that she had been called by Al Brown of
Local 802, who had wanted to know if the musicians were
union members. If they were not, the Union was going to
picket. Goldstein requested an assurance that nothing was
going to happen. Spinelli told Goldstein not to worry, that
they would communicate with the Union and speak to her
again.
Spinelli then reported the call to Chevy who asked her to
telephone Brown at the Respondent Union's hall to find
out what the matter was about, while he listened on an
extension. Accordingly, with Chevy and another musician
listening on extension lines , Spinelli phoned Brown 53 and
asked if he had called Goldstein. Brown said that he had.
When Spinelli told him that he had no right to call and
threaten a customer and that he should have called Chevy's
office if he had any questions concerning the musicians as
she would have been glad to answer them, Brown yelled,
"Don't tell me what I can or can't do. I can call anybody I
want to and say anything I want to say," and hung up.
There was no mention of picketing during this conversa-
tion.
That evening, Spinelli attended the Chevy Orchestra
concert at the Mall, which proceeded without picketing or
50 In accordance with the stipulation of the parties at the hearing, I find
that Al Brown, at all times material herein , was an agent of the Respondent
Union within the meaning of Sec 2(13) of the Act Brown testified that he
is an elected member of the Respondent Union's board department and is
acramted with Bob Chevy
According to Goldstein, during that conversation, Brown also stated
that he would come down to the concert and personally check everyone's
union card
52 Spinelli testified that Goldstein was in a state of hysteria
53 Spinelli testified that she had recognized Brown's voice as she knew
him "pretty well "
ASSOCIATED MUSICIANS OF GREATER NEW YORK 569
other interruption. It is not disputed, however, that Brown
and two other business representatives of the Respondent
Union, Joseph Roccaforte and Basil Basile,54 also were at
the concert. Chevy testified that at the conclusion of the
performance all three representatives approached the stand
and spoke to him, asking why did he not come up to the
Union and straighten the whole thing out. Chevy replied
that he would.55
Brown, called as a witness by the Respondent, testified
that on the afternoon of on or about July 9, 1974, after
reading in the newspapers that Bob Chevy's Orchestra
would be performing at the Queens Mall, he had placed a
call to Yolanda Goldstein and asked if she had a contract
with Bob Chevy. Brown did not fully remember her an-
swer, but recalled that Goldstein had asked, "What if I
have a nonunion band?" Brown told Goldstein that he im-
agined that 80 or 90 percent of the people who shopped in
that district were union people. However, contrary to
Goldstein's testimony, Brown did not say that they would
not cross a picket line, as he did not know what they would
do. Brown did tell Goldstein that he thought it would be
the Union's privilege to advertise with picket signs that that
particular band is nonunion.56
Brown stated that on the evening in question he attend-
ed Chevy's concert at the Queens Mall accompanied by his
two colleagues, Basile and Roccaforte,57 and, after the per-
formance, had congratulated Chevy on his concert. Brown
also testified that he and his colleagues also greeted the
musicians in Chevy's orchestra as old friends. Although
they found that Chevy's musicians that night were mem-
bers of Local 802, Brown testified that his union did not
picket that night as they had had no prior intention of so
doing.58
54 Spinelli testified that in her experience it was unusual for three union
delegates to appear at a given concert Usually, this was done by one dele-
gate.
ss The General Counsel does not contend that any of the three remaining
performances under Chevy's contract with the Association were in any way
interfered with by the Union
56 Brown denied telling Goldstein that the Respondent Union would
picket if a nonunion band performed, on the ground that he had sufficient
experience after 40 years in his position to know the Respondent 's rule that
picketing must be approved in advance by the Local 802 executive board
and by its attorneys He also expressly denied that he had told Goldstein
who or where they would picket
57 Brown explained that the three delegates were at the Chevy concert
because Chevy had a history of not cooperating with the Union and of
violating his contract , then in effect , by not filing contract engagement re-
ports as to which musicians he was employing so that pension and welfare
payments could be collected on their behalf Similarly, Chevy's musicians
also tended not to talk to union representatives As the Union has about
25,000 members , there are times when delegates visitingjobs did not recog-
nize the musicians present In view of the anticipated noncooperation from
Chevy and his musicians , and to increase the Respondent's chances of re-
cognizing his musicians , the three delegates had attended the concert The
Union might assign three delegates to attend the same single engagement
about three to five times a year The Respondent 's members play approxi-
mately 50,000 single engagements a year Brown described Roccaforte and
Basile as being members of the Respondent Union' s trial board, an intra-
union panel that hears complaints brought by members against each other
or against leaders, but contended that it is customary for members of the
Respondent Union's executive and trial boards to check out jobs
58 Brown , when questioned as to whether he had known that Chevy was
not a member in good standing of the Respondent Union since 1971, did
not answer directly, but merely replied that he had treated Chevy as a
signatory party to their collective-bargaining agreement
From the foregoing, the General Counsel, as noted, con-
tends that the testimony of his witnesses, if credited, would
establish that the Respondent Union had not merely
threatened to picket Bob Chevy, with whom it had its pri-
mary labor dispute, on July 9, but that, in violation of
Section 8(b)(4)(ii)(B) of the Act, it had threatened the As-
sociation, a neutral employer, to the effect that it would
place its pickets at the Association's Queens Mall entrance
with ambiguously worded picket signs. It thus is asserted
that the Respondent Union thereby threatened to picket
the entire Mall and the Association's member firms doing
business therein, to compel the Association to cease doing
business with Chevy.
The Respondent Union to support its position that, at
most, only the possibility of its engaging in lawful primary
picketing was mentioned by Brown to Goldstein, indicates
in its brief Brown's testimony wherein he denied having
threatened to picket the stores in the Mall or that there had
been any discussion as to any particular place in the vicini-
ty of the Mall where picketing might occur. The Respon-
dent Union also emphasized Brown's testimony that he
had clearly conveyed his union's intention only to picket
the particular band involved.59 It is further argued that the
fact that no picketing or other disturbance actually took
place is further reason for not crediting the General
Counsel' s witnesses.
However, from my observation and evaluation of the
witnesses at the hearing, I would credit Goldstein's account
of her July 9 conversation with Brown. As the General
Counsel indicates, Goldstein is a comparatively disinterest-
ed witness, who, prior to her conversation with him on that
date, had not known Brown. Goldstein gave her testimony
with clarity and precision. In addition, the testimony of
Chevy and Spinelli with respect to Spinelli's conversation
with Brown, which tended to follow and corroborate Gold-
stein, was not denied by Brown, and is therefore credited.
In contrast , Brown 's testimony seemed ambiguous at
points. As noted, although requested, he did not directly
respond to questions concerning whether, at the time in
question, he knew that Chevy was not a member in good
standing of the Respondent Union and did not recall the
entirety of his conversation with Goldstein. However, he
did corroborate Goldstein in certain respects, such as that
segment concerning the percentage of shoppers in the
Mall's area who are union members. The seriousness with
which Brown apparently regarded the Chevy engagement
was further evidenced by his strong reaction to Spinelli's
call as related by her, and the fact that he and two other
senior representatives appeared at the concert. As noted,
this type of coverage of a single engagement might occur at
about 3 to 5 of approximately 50,000 engagements a year.60
This additional evidence of Brown's reaction to the Chevy
engagement tends to lend further credence to Goldstein's
testimony and tends to detract from Brown's effort to pre-
sent the matter as a more casual occurrence.
59 Brown's testimony did not include a reference to a conversation with
Spinelli , Chevy's secretary
60 As to the Respondent 's observation that no picketing ever occurred, it,
of course, is speculative to consider here what the Union' s course would
have been for the remainder of the concert series had it not been found that
Chevy's musicians were members of the Respondent Union
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis and Conclusions
1. The alleged 8(e) violations
Section 8(e) of the Act makes it an unfair labor practice
for a union "to enter into any contract or agreement, ex-
press or implied, whereby such employer ceases . . . doing
business with any other person and any . . . such .. .
agreement shall be to such extent unenforceable and void."
The primary employers or persons herein, with whom the
Respondent Union had its disputes, were Del Castile and
Jeff and Phil, respectively, the bandleader and duo who
were not members of Local 802. The respective secondary
employers were Huntington and Vogue.
In Associated Musicians of Greater New York, Local 802,
American Federation of Musicians, AFL-CIO (Huntington
Town House, Inc.).61 the following was noted-
Statutory language, as well as legislative history,
demonstrates that Congress adopted a broad and
comprehensive ban against "hot cargo" provisions.
See N.L.R.B. v. LB.E.W, Local Union No 769 (Ets-
Hokin Corp.), 405 F.2d 159, 163 (C.A. 9, 1968), enfg.
154 NLRB 839; Employing Lithographers of Greater
Miami [Miami Post] v. N.L.R.B., 301 F.2d 20 (C.A. 5,
1962), enfg. as modified 130 NLRB 968. Section 8(e)
on its face proscribes not only hot cargo contracts, but
also "agreements"; and it bars not only express hot
cargo clauses, but those which may be "implied." 62
The credited testimony and .he inferences to be drawn
therefrom support the allegations of the complaint that the
Respondent Union with Huntington and Vogue, re-
spectively, during the relevant periods, maintained and en-
forced illegal "hot cargo" agreements, arrangements, or
understandings 63
In so concluding with respect to the events at Hunting-
ton, it is noted from the credited testimony that Messina
and Ciafardini, representatives and agents of the Respon-
dent Union and Huntington, respectively, specifically told
Castile and his musicians of the existence of an agreement
whereby only Local 802 bandleaders and musicians were
to perform for patrons on Huntington's premises. It is fur-
ther noted that although Messina permitted the perfor-
mance to continue he threatened that there would be
"trouble" if they were to return for future performances at
Huntington without membership in the Respondent
Union. This is corroborated by Ciafardini's response on
learning of Castile's meeting with Messina, at which time
he asked whether Castile would be permitted to finish the
engagement.
Although this case is no exception to the general rule
that each matter should be adjudicated on its own facts, in
the context of the credibility resolutions detailed above, it
is relevant to consider the recent history of the Respondent
Union and Hui•_tington. In the 1973 case involving the Re-
6i 203 NLRB 1078, 1082
62 As proscribed "hot cargo" agreements may, by definition, be implied
from the surrounding circumstances , as noted , it is not necessary that they
be in written form
63 See 203 NLRB 1078
spondent and Huntington, it was concluded that at the
time of the hearing of that matter, and for 12 years prior
thereto, there existed a written clause in Huntington's con-
tracts with its patrons to the same effect as the unwritten
agreement alleged to be unlawful herein. Accordingly, it
was found that the disputed agreement in that case had
long been effectuated by these same parties. The Respon-
dent Union argues that the experiences of the parties in
complying with the remedies ordered in the prior case
would make it unlikely that they would do the same things
all over again at this time. Yet, the facts of that earlier
matter have not been rendered completely obsolete. One of
the Respondent Union's defenses, noted in the earlier case,
was that it had only "exercised its discipline ... against its
own members by notifying them that playing with a non-
union musician constituted a violation of the [Union] By
laws." The Administrative Law Judge, in his Board-adopt-
ed decision, rejected this defense with the following obser-
vation:
As to the latter contention , Respondent 's defense
involves action in itself illegal and therefore does not
immunize its conduct . As the Board put it in one of
the two cases involving this very Respondent and
Charging Party, Local 802 violated Section 8(b)(4)(i)
and (u)(A) and (B) by "maintaining bylaw provisions
prohibiting its members from playing in an orchestra
led or conducted by a nonmember of Local 802 or in
which a nonmember plays an instrument or performs,
any other work of a musician ." Associated Musicians of
Greater New York, Local 802, AFM, AFL-CIO (Ran-
dom Travel, Inc.) and National Association of Orchestra
Leaders), 171 NLRB 1106 . To the same effect, see As-
sociated Musicians of Greater New York, Local 802,
AFM, AFL-CIO (National Association of Orchestra
Leaders), 176 NLRB 198, 206.
Despite the pnor adjudications referred to above, the
record in the instant case revealed that the same provision
was still among the Respondent Union 's bylaws at the time
of the hearing herein . 64 As there is no complaint allegation
or evidence that the relevant bylaw in the instant case was
urged upon Huntington or any other employer as a basis
for actions to be taken, there is no finding herein of a
violation in connection therewith . Nonetheless , as noted,
this bylaw provision has been implemented in the past and
its continued standing among the Respondent Union's ba-
sic governing rules indicates that the agreement found un-
lawful herein is fully consistent with the Respondent
Union 's written policies.65
64 See the Respondent Union's bylaws , art IV (H), set forth above in In
15 It is of course true that in the absence of evidence that Respondent's
officials had made a direct approach to or had undertaken conduct directed
at an employer, such as Huntington, for the purpose of causing the employ-
er to discriminate by implementing the union bylaw through his hiring prac-
tices or otherwise, such a bylaw provision constitutes a rule prescribed by a
labor organization with respect to the acquisition and retention of member-
ship, and, as such , is protected by the proviso to Sec 8(b)(1)(A) of the Act
See Associated Musicians of Greater New York, Local 802, AFM, AFL-CIO
(Joe Carroll Orchestras), 176 NLRB 365 (1969)
65 These observations are in accordance with the Board 's policy of consid-
ering relevant conduct by the same parties in earlier cases as background
evidence See Federal Pacific Electric Company , 203 NLRB 571, In 1 (1973)
ASSOCIATED MUSICIANS OF GREATER NEW YORK 571
In concluding that Jeff and Phil's termination by Vogue
was an effectuation of a like agreement between the Re-
spondent Union and Vogue, from the credited testimony,
reliance is placed upon the admitted statement by Sy Co-
hen that he had told Arnold Klein of Carnegie Talent that
Vogue, in fact, had such agreement with the Respondent
Union; that there was a possibility that Vogue would be
picketed in connection therewith; Cohen's statement to
Jeff and Phil that the Respondent's delegate was earnestly
enforcing Local 802's membership requirement; that
Vogue was a "union house"; his urging that Jeff and Phil
join Local 802; and the timing of the abrupt termination of
Jeff and Phil by Vogue after they had made known to the
Respondent Union's delegate, Cole, that they were mem-
bers of a rival union.66 It is further noted that Jeff and
Phil's termination was inconsistent with Sy Cohen's admit-
ted satisfaction with their work and his stated prior antici-
pation that Jeff and Phil would have a long engagement.
From the credited testimony of Tillman, corroborated in
part by Klein, it is found that Jeff and Phil were advised by
Flashner, from information received from Cohen, that
their continued employment at Vogue depended upon their
willingness to become members of the Respondent Union.
In Associated Musicians of Greater New York, Local 802,
AFM, AFL-CIO (Dante Caterers, Inc.)," cited by the Re-
spondent Union in its brief, the Board dismissed a com-
plaint against the instant Respondent that alleged viola-
tions of Section 8(b)(4)(ii)(A) and 8(e) of the Act of a type
similar to those in the earlier Huntington Town House case,
supra, on grounds that the asserted unlawful understanding
and threats in Dante Caterers had not been established by
direct unambiguous evidence.6S The present proceedings,
as they relate to Huntington and Vogue, appear to be dis-
tinguishable from Dante Caterers, supra, as, inter alia, the
evidence of misconduct is more direct. Moreover, the dis-
puted agreement was successfully enforced against Jeff and
Phil. In the instant Huntington case, unlike Dante Caterers,
it was found that both management and union representa-
tives directly informed Castile and his musicians that there
was an agreement that only Local 802 bands could play at
Huntington's, and the union representative, Messina,
threatened that there would be "trouble" if Castile and his
musicians returned to Huntington without first acquiring
membership in Local 802.
The Vogue case herein is also materially distinguishable
from Dante Caterers In Vogue, Sy Cohen as a representa-
tive of management directly affirmed the existence of such
an agreement to Klein, a third party, and mentioned that
his business could possibly be picketed; announced to the
musicians in question that Vogue was a "union house" and
discharged them without cause immediately after their ad-
verse interview with the Local 802 delegate and their stated
continued refusal to become members of the Respondent
Union. Accordingly in Vogue, contrary to Dante Caterers,
in addition to the other direct evidence of the existence of
66 Cole's hostility to A M U , expressed during that meeting, is also noted
67 212 NLRB 645
68 In Dante Caterers, supra, the Board noted that in addition to the ab-
sence of direct evidence to support the General Counsel's allegations, no
interference actually occurred The band allegedly challenged by the Re-
spondent Union completed its engagement and was not fired
a "hot cargo" agreement, noted above, the employment of
the non-Local 802 musicians at Vogue and Huntington was
directly and abruptly affected.
It, therefore, is concluded that the preponderance of
substantial credible evidence supports the complaint alle-
gations that the Respondent Union violated Section 8(e) of
the Act by maintaining and enforcing illegal "hot cargo"
agreements with Vogue and Huntington, respectively, dur-
ing the periods involved.
2. The alleged 8(b)(4)(ii)(B ) violation
The credited evidence revealed , inter aka, that on the
afternoon of July 9, 1974, the Respondent' s delegate,
Brown, told Goldstein, an official of the Association, that
if union members did not perform the Chevy orchestra
concert he would place pickets on Queens Boulevard in
front of the Mall. As noted, the Mall has but one main
entrance. Brown, too, testified that he had spoken to Gold-
stein of the possibility of establishing what would be, in
effect, an informational picket line directed to consumers
visiting the Mall.
The test for whether a mention of the possibility of an
informational picket line is, in and of itself, a threat within
the meaning of the Act was stated by the Board in United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, Local No. 639 (American Modulars Corporation),"
where it said:
Like the Administrative Law Judge, we find that the
statement of Respondents to American's area manag-
er, concerning the possibility of "informational" pick-
eting at the Sherwood jobsite unless the latter's sub-
contractor, Sondles, the primary employer herein, be-
came unionized, constituted a threat within the mean-
ing of Sec. 8(b)(4)(ii)(B). This statement, by its
breadth, contemplated picketing of the entire jobsite
and anyone working there, whether connected with
the primary or neutral persons or employers. As such,
it went beyond the mere giving notice of prospective
picketing against a subcontractor to a general contrac-
tor. Cf. Construction, Building Material and Miscella-
neous Drivers Local Union No. 83, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind. (Marshall and Haas), 133
NLRB 1144, 1146.
In America Modulars, the threat was uttered in a context
which included picketing and the principal issue discussed
by the Board was whether the signs that had been used met
the Moore Dry Dock standards.70 American Modulars dif-
fers from the instant case , however, for in that matter there
was picketing which took place at a jobsite, while here
there was merely a threat to picket and the common situs is
a retail shopping center.
The Respondent, in its brief, has sought to support its
position by arguing, inter aha, that no picketing actually
had occurred. However, the Board has found violations of
Section 8(b)(4)(ii)(B) in situations where no picketing has
69203 NLRB 1112, In 1 (1973)
70 See Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950)
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed the words claimed to be subsection (u) threats. In
General Teamsters, Warehouse and Dairy Employees Union
Local 126, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, et
al. (Ready Mixed Concrete, Inc.),` the Board said:
The Trial Examiner also found that Teamsters Busi-
ness Representative Richmeier's threat to Tiede's su-
perintendent to put up a picket line unless Tiede dis-
continued its purchases of concrete from RMC did
not violate Section 8(b)(4)(ii)(B) of the Act because
there was no evidence "that the inducement offered by
Richmeier was effective...." A threat to an employ-
er to picket is itself coercive, whether or not the picket-
ing is subsequently instituted, and if the threat is in-
tended to achieve an object prohibited by Section
8(b)(4)(B), as in this case, it is violative of Section
8(b)(4)(n)(B). We therefore find, contrary to the Trial
Examiner, that Richmeier's threat to Tiede violated
Section 8(b)(4)(ii)(B) of the Act.72
If Brown's statement to Goldstein were to be construed
as a threat to engage in consumer picketing at the Mall,
from the credited testimony, it cannot be found that
Brown's threat to picket at the common situs shopping cen-
ter was so phrased as to indicate an intent to picket in
conformity with the standards of specificity established in
the Tree Fruits 73 case.74 It would appear from Tree Fruits
and from cases that followed that in order to come within
the Tree Fruits doctrine, a union must meet criteria remi-
niscent of those adopted by the Board in common and
moving situs picketing situations concerning the timing
and location of the picketing and the specificity of the
Union's appeal.75 In the instant case the threat to picket
was not specific as to the nature of the appeal that would
7i 200 NLRB 253, In 2 (1972)
72 In Ready Mixed Concrete, supra, also, the principal issue before the
Board was the legitimacy of the picketing which had taken place, not an
issue here
73 N L R B v Fruit & Vegetable Packers and Warehousemen , Local 760, et
al, 377 U S 58 (1964) In Tree Fruits, the Supreme Court enunciated a
doctrine of limited consumer boycott privilege , holding that a union did not
violate Sec 8(b)(4)(u)(B) of the Act when , in furtherance of its dispute with
packers of Washington State apples, it picketed stores selling their product
with signs appealing to members of the consuming public not to buy the
specific product in dispute In so concluding, the Court noted that the "iso-
lated evil" that required proscription of peaceful picketing at secondary sites
"was its use to persuade the customers of the secondary employer to cease
trading with him in order to force him to cease dealing with the primary
employer " In the Court ' s view, there existed a major difference between
that type of unlawful consumer picketing and that effectuated in the Tree
Fruits case , where , from the unambiguous picket signs utilized, it was clear
that the peaceful picketing at the common situs shopping area was directed
only at the struck product In such circumstances , the Union's appeal to the
public was found to be lawful , as the public is not asked to withhold its
patronage from the secondary employer , but only to boycott the primary
emloyer's foods or services
The Respondent Union in its brief did not specifically refer to the
applicability of the Tree Fruits doctrine, but presented what was principally
a factual argument The Respondent 's position is that the testimony of its
witnesses , if credited , would establish that Brown had voiced no more than
a specifically pressed intent to engage in what would be lawful picketing.
Alton-Wood River Building and Construction Trades Council , AFL-CIO,
et al, 154 NLRB 982 (1965 ), Millmen & Cabinet Makers Union, Local No
550, etc (Steiner Lumber Co ), 153 NLRB 1285, enfd 367 F 2d 953 (C A 9,
1966)
be made to the public.76 As noted from American Modulars,
supra, when such a broad threat to picket is made , there is
no advance presumption that it will be sufficiently re-
stricted in its scope and appeals to the public as to remove
it from the proscription of Section 8(b)(4)(u)(B) of the Act.
A no less compelling reason for finding that the threat
herein would be outside of the Tree Fruits doctrine of per-
missible consumer picketing relates to the significance that
the Board has placed upon the presence or absence of a
tangible struck product or service offered to consumers. In
the instant matter, the disputed service did not consist of a
tangible struck product such as the Washington State ap-
ples in the Tree Fruits case , which consumers could, at their
option, purchase or forgo without otherwise affecting their
relationship with the neutral vendors. Here the product
consisted of musical services that neither the Association
nor any of its member retailers were purveying to its cus-
tomers.77 Had the shoppers at the Mall been called upon to
observe the boycott, as threatened, they would have been
obliged to cease doing business with the Association and
its neutral member firms.
For the foregoing reasons, I find that the Respondent
Union by its above conduct violated Section 8(b)(4)(ii)(B)
of the Act.78
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Union set forth in sec-
tion III , above, occurring in connection with the operations
of the respective employers set forth in section I, above,
have close, intimate, and substantial relations to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
76 It was also unclear as to precisely who would be picketed and where the
threatened picketing would take place
77 Local 254, Building Service Employees International Union, AFL-CIO
(University Cleaning Co), 151 NLRB 341, 347 (1965)
78 Cf International Brotherhood of Electrical Workers, AFL-CIO, Local
Union No 38 (Cleveland Electro Metals Company), 221 NLRB 1073 (1975),
International Union of Operating Engineers, Local 17, 17A and 17B, AFL-
CIO (Firelands Sewer and Water Construction Co, Inc), 210 NLRB 150
(1974) In those cases, no violations were found with respect to threats by
unions to respective neutral employers that they would engage in informa-
tional picketing at common situses in an unspecified manner if nonunion
contractors, with whom the unions had their primary disputes, were award-
ed contracts In finding that the context in which these statements were
made did not constitute threats to picket neutral employers, the Board not-
ed that the conversations at the time the alleged threats were uttered had
centered on the nonunion primary employers, no other contracts had been
awarded and no other contractors or subcontractors were involved or dis-
cussed, and the statements were made in response to a question as to what
the unions would do In the instant case, contrary to Cleveland Electro Met-
als, supra, and Firelands Sewer, supra, the common situs is a shopping center
where over 40 neutral employers are regularly engaged in the conduct of
their business Accordingly, the contextual presumption that the broad
threat to engage in informational picketing herein would be directed only
against the primary employer is proportionately diluted In addition, unlike
the above-cited cases, in the present matter the threat to picket was not an
elicited response to a question put to the Union by a neutral employer, but
was originated by the Respondent Union on its own initiative as a statement
of its aggressive intent
ASSOCIATED MUSICIANS OF GREATER NEW YORK 573
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. The Respondent Union violated Section 8(e) of the
Act by maintaining and enforcing agreements , arrange-
ments, or understandings with Huntington and Vogue, re-
spectively, under which only Local 802 bandleaders and
musicians would be allowed to perform on the premises of
Huntington and Vogue.
3. By threatening, coercing , and restraining the Queens
Center Merchants Association, Inc., with an object of forc-
ing or requiring the Association and other persons to cease
doing business with Bob Chevy , a nonunion bandleader,
Respondent violated Section 8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged
in unfair labor practices within the meaning of Section 8(e)
and 8(b)(4)(ii)(B) of the Act, I shall recommend the cus-
tomary cease-and-desist order and the usual affirmative re-
lief ordered in cases of this nature , including the posting of
notices. In view of the fact that Respondent has been
found to have engaged in secondary activity violative of
Section 8(b)(4) in several adjudicated cases,79 I find that
there is real danger that Respondent may in the future
engage in unlawful activity of the same or similar nature as
that here found. Accordingly, I shall recommend a broad
order designed to extend the protection of the Act to pn-
mary and secondary employers other than those here in-
volved.BO It will also be recommended that the Respondent
Union be required to publish the notice attached hereto in
an issue of "Allegro," the official publication distributed
monthly to all of its members, or any equivalent publica-
tion."
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record , and pursuant
to Section 10(c) of the Act, I hereby recommend the fol-
lowing:
ORDER82
The Respondent, Associated Musicians of Greater New
York, Local 802, American Federation of Musicians,
AFL-CIO, Brooklyn, New York, its officers, agents, and
representatives , shall:
1. Cease and desist from:
(a) Enforcing, maintaining, or otherwise giving effect to
any agreement , arrangement , or understanding with Hunt-
ington Town House, Inc., Vogue Restaurant, Inc., or with
any other employer, whereby such employers agree that
only the Respondent's members be allowed to provide or
perform services as musicians or bandleaders.
(b) Threatening, coercing, or restraining Queens Center
Merchants Association , Inc., or any other person engaged
in commerce or in an industry affecting commerce, where
an object thereof is to force or require the Queens Center
Merchants Association , Inc., or any other person , to cease
doing business with Robert Ciavolino , doing business un-
der the name Bob Chevy Orchestras, or with any other
person.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its office , place of business , and meeting
places copies of the attached notice marked "Appendix." 83
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by the Re-
spondent Union 's representative , shall be published in a
following issue of "Allegro" or any other equivalent official
publication of the Respondent Union distributed to its
general membership ; be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to members are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(b) Furnish said Regional Director with signed copies of
the aforesaid notice for posting, if desired by any employer
or person involved in this proceeding , at places where they
customarily post notices to employees.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
79 Associated Musicians of Greater New York, Local 802, A FM, AFL-CIO
(Huntington Town House, Inc) and the National Association of Orchestra
Leaders, supra, 203 NLRB 1078, Associated Musicians of Greater New York,
Local 802, AFM, AFL-CIO (National Association of Orchestra Leaders), su-
pra, 176 NLRB 198, Associated Musicians of Greater New York, Local 802
(Random Travel, Inc), supra, 171 NLRB 1106
80 See Associated Musicians, Local 802, supra, 203 NLRB 1078, Associated
Musicians, Local 802, supra, 176 NLRB 198, In 2, Associated Musicians,
Local 802, supra, 171 NLRB 1106
81 In Associated Musicians, Local 802, supra, 203 NLRB 1078, the
earlier Huntington Town House case, it was determined that the remedy
ordered therein , contrary to those in the cases cited above at 176 NLRB 198
and at 171 NLRB 1106, should not include a requirement that the Respon-
dent Union also publish the remedial notice in "Allegro " There, unlike the
noted earlier cases , there was no evidence that the Respondent Union had
utilized "Allegro" to further the illegal activity by publicizing it However,
while there also is no evidence in the instant case that actions found unlaw-
ful had been published in "Allegro" or any other publication of the Respon-
dent Union, it is relevant to note from the cases cited that the misconduct
found herein is not isolated but is of a recurring nature Unless adequate
notice is given of the Order in this matter, these activities might well contin-
ue or be resumed The requirement that the Respondent Union publish a
notice of the Order at least once in its publication generally distributed to its
membership appears to be a reasonable requirement in light of the circum-
stances here involved N L R B v United Brotherhood of Carpenters and
Joiners of America, 321 F 2d 126, 129-130 (C A 9, 1963), cert denied 375
US 953
82 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
83 In the event that the Board ' s Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX ington Town House, Inc., Vogue Restaurant, Inc., or
any other employer, whereby such employers agree to
allow only Local 802 member musicians and band-
leaders to perform on their premises.
WE WILL NOT threaten, coerce , or restrain Queens
Center Merchants Association, Inc., or any other per-
son engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or re-
quire the Queens Center Merchants Association, Inc.,
or any other person, to cease doing business with
Robert Ciavolino, doing business under the name Bob
Chevy Orchestras, or with any other person.
ASSOCIATED MUSICIANS OF GREATER NEW YORK,
LOCAL 802, AMERICAN FEDERATION OF MUSICIANS,
AFL-CIO
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, it has been found that we, Associat-
ed Musicians of Greater New York, Local 802, American
Federation of Musicians, AFL-CIO, have violated the
law and we have been ordered to post this notice and
abide by its terms.
WE WILL NOT enforce, maintain, or otherwise give
effect to any agreement or understanding with Hunt-