Associated Musicians of Greater N.Y.

National Labor Relations Board - Board Decisions

Jun 1, 1973

203 N.L.R.B. 1078 (N.L.R.B. 1973)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Musicians of Greater New York , Local 802,
American Federation of Musicians, AFL-CIO
(Huntington Town House, Inc.) and National Asso-
cation of Orchestra Leaders. Cases 29-CC-317 and
29-CE-18
June 1, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND FANNING AND JENKINS
On February 15, 1973, Administrative Law Judge
Samuel M. Singer issued the attached Decision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Associated Musicians of
Greater New York, Local 802 , American Federation
of Musicians , AFL-CIO, Huntington Station, New
York, shall take the action set forth in the said recom-
mended Order
DECISION
SAMUEL M. SINGER. Administrative Law Judge: This pro-
ceeding was tried before me in Brooklyn, New York, on
November 6 and 10, 1972, pursuant to a charge filed on May
17 and complaint issued on July 28, 1972. The complaint
alleges that Respondent (Local 802) and Huntington Town
House, Inc. (Huntington), since November 17, 1971 (a date
within 6 months prior to filing of the unfair labor practice
charge), violated Section 8(e) of the Act by maintaining and
enforcing an illegal (hot cargo) agreement , arrangement, or
understanding, under which only members of Respondent
were permitted to conduct orchestras or provide musical
services to patrons of Huntington; and that Repondent
Union also violated Section 8(b)(4)(ii)(A) and (B) of the Act
by threatening, coercing, and restraining Huntington with
objects: (a) to force and require Huntington to maintain
and enforce the alleged hot cargo agreement , arrangement,
or understanding; and (b) to force and require Huntington
"and other persons" to cease doing business with an orches-
tra leader (Howard Brandwein), not a member of Local
802.1
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
Briefs were received from all by January 15, 1973. Upon the
entire record,2 and my observation of the testimonial de-
meanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I BUSINESS OF THE EMPLOYERS INVOLVED
Huntington, a New York corporation with principal of-
fice and place of business in Huntington Station, New York,
provides catering facilities for public and private social af-
fairs, including food, beverage, and related services. During
1971, the calendar year immediately preceding issuance of
the complaint, it derived gross revenues from its operations
in excess of $4,000,000; and purchased and received from
sellers in other States goods and products valued in excess
of $100,000. 1 find that Huntington at all material times has
been a person and employer engaged in commerce and in
an industry affecting commerce within the meaning of the
Act, and that assertion of jurisdiction here is proper.
Howard Brandwein, with his principal office and place of
business in Stony Brook, New York, is an orchestra leader
providing musical entertainment and related services, trad-
ing under the name and style of Brandy King Orchestra. I
find that at all material times Brandwein has been a person
within the meaning of Sections 2(1) and 8(b)(4) of the Act.
II LABOR ORGANIZATION INVOLVED
At all material times Respondent (Local 802 ) has been a
labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Respondent's relations with Huntington
Huntington maintains II ballrooms for catering wed-
dings, bar mitzvahs, business meetings, etc. Its own help,
including waiters and kitchen employees, is unionized. Al-
though it employs no bands or orchestras and has no collec-
tive agreement with Respondent, its contracts with patrons
engaging its facilities have for at least 12 years incorporated
1 The complaint orginally named Huntington (in addition to Local 802) as
party Respondent in Case 29-CE-18 On October 31, the Regional Director
approved a settlement agreement between Huntington and Charging Party,
providing, among other things, that Huntington would cease giving effect to
the alleged hot cargo agreement , arrangement , or understanding ; that Hunt-
ington would delete from its contracts with patrons the requirement that only
members of Respondent could be employed as musicians at its premises, and
that complaint herein shall be considered withdrawn to the extent it alleges
violations on the part of Huntington . At the heanng I granted General
Counsel's motion to amend the caption of the complaint to eliminate Hunt-
mgton as a party Respondent
Transcript corrected by my January 29, 1973, order on notice.
203 NLRB No. 163
ASSOCIATED MUSICIANS OF GREATER N.Y. 1079
the clause, reading:
ONLY UNION MUSICIANS OF A.F. OF M.
SHALL BE EMPLOYED
ON THESE PREMISES-LOCAL 802
It is conceded that Local 802 representatives have for years
been permitted access to all affairs in order to ascertain
whether any bands included musicians not members of the
Union.
2. Nonunion bandleader Brandwein arranges to play at
Huntington on May 13 and 14
On November 9,3 Neil Aronson entered into a contract
with Huntington under which the latter undertook to cater
a bar mitzvah for his son. The contract set forth, among
other things, the date of the affair (May 13), the type of food
to be served, and contained the usual clause concerning
employment of only Local 802 musicians. When Aronson
asked Huntington's Banquet Sales Manager Austin whether
he could bring in "outside" musicians , the latter said he
could "as long as they were in the union." On November 14,
Aronson retained bandleader Howard Brandwein to pro-
vide a 4-man orchestra at his son's May 13 bar mitzvah.
When Aronson asked Brandwein "if he was in the union
because [Huntington ] required a union band," the latter
answered "yes."4
Brandwein was not in fact a union member , having termi-
nated his Local 802 membership in 1967 or 1968.5 Believing
that his "friend" Mel Finkelstein, a musician he had en-
gaged from time to time , was a Local 802 member in good
standing, Brandwein arranged for Finkelstein to file with
Respondent notice of the May 13 Aronson affair in
Finkelstein's name.6 At the same time, Brandwein hired
Finkelstein to play as part of his band at another function
(the Alper bar mitzvah) at which Brandwein was to lead a
band on May 14. Finkelstein filed a union notice for that
(May 14) function also. Like Brandwein , Finkelstein was
not in fact a member in good standing in Local 802, having
paid dues to Respondent only through May 1970.'
3 All dates refer to November 1971-May 1972.
4 Findings in the above paragraph are based on the uncontradicted, cred-
ited testimony of Aronson and Brandwein.
5 Asked at the hearing why he held himself out to be a union member to
Aronson, and indeed incorporated in his form agreement with Aronson that
the agreement was "subject to all rules and regulations of Local #802,
A F.M.," Brandwein answered , "the first thing that I'm asked when I'm
making a contract" is whether he and his men were "members of the Musi-
cians Union," indicating that if he told customers otherwise "they wouldn't
hire" him.
6 Respondent requires filing of such notice by member leaders "months in
advance" of an engagement.
7 The findings in the above paragraph are based on the mutually corrobo-
rative testimony of Brandwein and Finkelstein.
8 The above findings as to the May 10 and 12 conversations are based on
the testimony of Finkelstein and Monnato, to the extent credited . I do not
credit Monnato's denial that he said anything to Finkelstein about pulling
3. Union Official Monnato's threat to send a union rep-
resentative to stop the May 13 affair unless musician
Finkelstein, who filed the notice of engagement on be-
half of Brandwein, "readmits" himself to membership or
transfers the job to a union band
On May 10, 3 days before the Aronson bar mitzvah,
Edward Monnato, Respondent's chairman of the trial
board and head of its data processing department, discov-
ered Finkelstein's dues delinquency and determined that his
"membership [had] expired" a year ago. On the same day,
he telephoned Finkelstein, reminded him of his dues delin-
quency, and told him he would "not be able" to perform at
Huntington on May 13 because he "was not in the union."
When Finkelstein asked, "how come you are bothering me
now," Monnato explained that "it takes us quite a while to
catch up on these things." Monnato gave Finkelstein "two
choices": either to "readmit himself to membership [i.e., pay
the equivalent of a member application fee], or give the job
to a member in good standing." He warned Finkelstein that
unless he complied he was "pulling the musicians out" and
"sending a delegate" to Huntington. When Finkelstein sug-
gested that he might turn the job over to a nonunion band-
leader like Del Castille, Monnato remarked that this "would
be injustice to everybody." Monnato requested Finkelstein
to notify him of his intention by Friday, May 12, the last day
he could report on the situation to the business representa-
tive servicing Huntington.
On May 12, Monnato again telephoned Finkelstein, ask-
ing him if he had made a decision. When Finkelstein said
he was not going "to come back into the union," Monnato
warned that he was "going to send a delegate to make sure"
that if Finkelstein showed up at the May 13 affair, he
"would stop" it and "pull the musicians out" and "bring
them up on charges." He also mentioned that he found
Finkelstein's engagement report for May 14 (the Alper bar
mitzvah affair) and that he could not perform at that affair
either. Finkelstein did not tell Monnato whether he would
or would not show up at Huntington for either affair, nor
did he disclose that he had filed the engagement notices on
behalf of Brandwein.8
Monnato testified that on the same day, May 12, he con-
tacted Business Representative or Delegate Saggio, who
since March serviced the Huntington area ; told him about
Finkelstein's May 13 and 14 engagements; and requested
him to "show up" at Huntington to "check the true situation
the band . Monnato did admit that "in order to prevent me from sending the
business representative down to check his job, because of his nonmembership
I suggested that he [Finkelstein] either readmit himself to membership
or give the job to a member in good standing " According to Monnato, it was
customary union procedure to dispatch a business representative to a job to
"inform . paid up members in good standing that if they were working
with nonunion members" they could be violating the union bylaws. Also
according to Monnato, members so advised, "either had the choice to stay
or leave, whichever they chose." He also testified , however, that if the mem-
ber elected not to leave , he was subject to disciplinary proceedings. Under
art IV , sec. l(H ), it is a "violation" for a member to "perform in or with a
band or orchestra which is led or conducted by a nonmember ... " ; and
sec 1(U) forbids a member to "engage or perform with a member of the local
who is not in good standing."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take the appropriate action."9
4. Union Representative Saggio 's threats to "pull" all
union musicians and waiters out of Huntington ; Opera-
tions Manager Ferraro's and Saggio 's admissions as to
existence of an "agreement" allowing only union musi-
cians to play at Huntington
Around 1:30 p.m., on May 13, Brandwein , the nonunion
orchestra leader, arrived at Huntington with three musi-
cians and two woman entertainers to perform at the Aron-
son bar mitzvah . Also present was Castille , a nonunion
band leader (like Brandwein) and member of Charging Par-
ty Assocation, invited by Brandwein to assist him "in antici-
pation of any problems" with Respondent . 10 At 3 p.m., after
the band had played for an hour, the headwaiter alerted
Aronson that "there was some problem" and Aronson went
out to the hall where he met Local 802 Business Representa-
tive (delegate) Saggio . Saggio told Aronson that "there were
members in the orchestra who were not in the Union and
that, while he wouldn 't stop the band from playing, those
who were in the union would be brought up on charges."
When Aronson asked whether "Mr. Brandwein-the or-
chestra leader had to be a member," Saggio said "yes,"
indicating that Brandwein was not . Thereafter Aronson
spoke to an unidentified Huntington manager II who stated
that he had "no objection against them playing. This was
between the musicians and the union."
Saggio then approached the bandstand in the room where
the affair was taking place . Anxious to avoid "an incident,"
Brandwein and Castille asked Saggio to accompany them
outside the room , which he did. Responding to questions
put to him, Brandwein told Saggio that Finkelstein (who
had "filed the job") was not present and that the job was
Brandwein's who did not "file" for it because he was not a
Local 802 member. Thereupon Saggio said that the musi-
cians could not play for Brandwein and that he was going
inside to get their names and card numbers . Brandwein
answered that Saggio had "no right to go into the room,"
that it was "a private party ," and that he "would be happy
to furnish" the names and numbers of his musicians person-
9 Monnato stressed that his instructions to Saggio, as well as his dealings
with Finkelstein , were matters normally handled by Vince Rossittl , Saggio's
superior , indicating that he substituted for Rossitti who had been on vaca-
tion Both Monnato and Saggio sought to convey the impression that there
was nothing unique in dispatching Saggio to Huntington on May 13, since,
as Monnato put it , as a delegate servicing the area Saggio would have gone
there "in any case " According to Saggfo , "we make our rounds on every
catering hall to check the bands , make sure that they have their cards on
them " Saggio admitted , however, that although assigned to the Huntington
area in March , he did not visit that establishment until May 1, when he
checked on the musicians cards all week, especially Saturdays and Sundays
when he would do so "all hours" of the day and night I do not believe Saggio
and Monnato and find that Monnato , as he warned Finkelstein , sent the
union delegate (Saggio) to Huntington "to make sure" that if Finkelstein, a
nonmember, led the band or performed he "would stop" the affair and "pull
the musicians out."
10 Castille or Del Castile (the professional name for William P. de L'Aqui-
la) was previously involved in a "similar" incident with Respondent Prior
to May 13, Finkelstein (who filed the engagement notice in his name for
Brandwem , supra, sec. A, 3), had informed Brandwein of his confrontation
with Monnato
11 The record shows that Huntington has a general manager (Maggi),
operations manager (Ferraro), and six banquet managers
ally to Saggio or in writing to the Union. Castille asked
whether Local 802 had "an agreement" with Huntington
that "only union musicians can play at this place" and
Saggio said, "Yes, we do." Saggio added that he was "or-
dered from the top to go in and get the names personally"
and that if he was prevented from doing so he "will have to
get the manager."
Soon afterward Saggio brought Operations Manager Fer-
raro, in charge of parties and functions, and the two confer-
red with Brandwein and Castille in the lobby. Ferraro
asserted that Saggio "is from the union" and "has the right"
to go into the room. When Castille asked Ferraro, as he
previously asked Saggio, whether the Union and Hunting-
ton had an "agreement" under which "only union musicians
can work" at Huntington, Ferraro answered "yes." Saggio
thereupon warned that if he did not get into the room he
would "pull every musician out of the building" and, turn-
ing to Ferraro, added "and the waiters, too." Ferraro then
told Brandwein and Castille, "I think you'd better let him
go into the room." Upon Saggio's assurances that he was
only going to obtain the names and card numbers of band
members, that he was "just here" to do his job, and that he
did not intend to "cause any trouble," Castille and Brand-
wein consented to let Saggio enter. As Castille was following
Saggio into the room, Ferraro told Castille, "Of course, we
have an agreement. It is right on our contracts. Our clients
have to sign a contract that says only union musicians can
play here."
Also on the same day, around the time of the above-
described incident, Saggio asked Brandwein if Finkelstein
was going to be at Huntington on the next day, Sunday,
May 14. When Brandwein answered "yes," indicating that
Finkelstein would be working with him, Saggfo warned that
he was going to stay at Huntington "all day tomorrow, and
your guys are going to go through the same thing . . . as you
did today."12
12 The above findings concerning Saggio's May 13 conversations with
Brandwein , Castille, and Ferraro, are based on the mutually corroborative
testimony of General Counsel witnesses Brandwein and Castille. While por-
tions of Respondent witness Saggio's testimony are consistent with that of
Brandwein and Castille , his testimony on crucial matters (such as the exis-
tence of an "agreement" between Respondent and Huntington and the
threats attributed to him ) are not. I have already indicated my reservations
regarding Saggio's credibility in connection with another matter (supra, fn
9). Saggio impressed me as a vacillating and unreliable witness, often vague,
evasive , and unresponsive , and openly devoted to promotion of
Respondent's interests . At times he either displayed poor memory or conven-
iently forgot what had transpired . Some of his testimony is also inconsistent
with his sworn preheating statement . Thus, although denying at the hearing
that he had asked to speak with Ferraro on May 13, protesting "I don't know
who Mr . Ferraro was" and indeed that "I didn't know anybody at Hunting-
ton," his affidavit is replete with references to Ferraro by name , including
the fact that he had "asked to speak to Vince Ferraro"; that "Ferraro told
Del Castile & Brandwein that this was a union place" and Saggio had "a right
to go into the room"; and that "Ferraro suggested we all talk" the matter over
with General Manager Maggi-which , as hereafter shown, was done While
conceding at the hearing that he had called for a "manager" (but not by
name), who arrived on the scene to direct that he be allowed to enter the room
to "check the cards" because Huntington was a "union place," he neverthe-
less insisted that he (Saggio) left immediately afterward, thereby implying
that he could not have made any threats in the presence of Ferraro. I do not
believe him Nor was Ferraro called to buttress Saggio and contradict the
versions given by Brandwein and Castille. While the latter two were not
above partisanship , appearing quite eager to testify against Respondent, each
testified with an assurance , consistency, and outspokenness which carried
conviction.
ASSOCIATED MUSICIANS OF GREATER N.Y.
5 Saggio's talk with the union musicians, one of whom
leaves the Brandwein band
After entering the room, Saggio approached the band-
stand and asked Brandwein's musicians for their names and
union cards. The three musicians thereupon produced
cards. One of the three, Friedman-who at the time was
"being fined" by a sister local for having worked with Cas-
tille then on its "unfair list"-asked Saggio what he should
do. Saggio said, "You can stay if you wish or you can leave.
However, if you stay, you will be subject to serious charges,"
explaining that he was not "supposed to play with nonunion
men" and that Saggio would have to file a report on the
incident. As Friedman packed to leave, Brandwein asked
him if he would leave behind his drums, but Saggio said that
this would "not be a good idea." Friedman then left with his
drums , as also did the two women entertainers , who supple-
mented the band. 13 Brandwein, however, prevailed upon the
two other union musicians to remain and the three "played
as best they could for the rest of the affair."14
6. General Manager Maggi's admission as the the existence
of an "agreement" restricting employment of union musi-
cians; his threat against nonunion bandleaders Brand-
wein and Castille
Suggesting that perhaps Ferraro's superior (General
Manager Maggi) "may perhaps prevail" on Saggio ,not to
disrupt the affair , nonunion bandleader Castille asked Op-
erations Manager Ferrrao to talk to his superior. About 4
p.m., on the same day, May 13, Ferraro led Castille, Brand-
wein , and Union Delegate Saggio to see General Manager
Maggi. Castille told Maggi that Saggid'had been intimidat-
ing the musicians to the point where the [Aronson] affair
may very well be disrupted" and asked for his assistance.
Maggi responded, "I understand you boys are not in the
Union." Castille agreed and asked, "Does that mean we
can't play here . . . because you and the union have an
agreement that only union musicians can play here? " Mag-
gie replied, "What do you think, we are kids? Of course we
have an agreement. . . . We even put it on our contract
[with patrons]." Brandwein then offered not to return to the
bandstand to save "embarrassment" to his client (Aronson)
and asked Saggio if he would "allow" the three musicians
to continue playing without "further harassment." Saggio
said this "is not good either" since the band would then be
under the Union's required minimum of four musicians for
that performance. Maggi turned to Castille and Brandwein
and said that they were "nothing but troublemakers" and if
they came around again he would personally "throw" them
13 Friedman testified that a day or two later he telephoned Monnato, Local
802's trial board chairman and reported "what happened "; that the latter
seemed pleased that [he) left " and invited him to his office ; that when he
appeared at the office Monnato said he was "glad" that Friedman had
"cooperated"; and that Monnato then introduced him to Union President
Aronson to whom Monnato explained how Friedman had "cooperated "
14 The findings in this section are based on the composite and mutually
corroborative testimony of Friedman, Brandwein , and Aronson . According
to Saggio, when Friedman asked him "what's going to happen now ," Saggio
merely said , " I don't know nothing what's going to happen ... it's up to you
what you want to do."
1081
out. Brandwein and Castille thereupon left the office-the
latter also the premises.
The Aronson affair continued until 6 p.m. Saggio, as he
testified , checked out that day the bands in all 11 rooms
where affairs were in progress.ls
7 Maggi's and Saggio's role in procuring union musi-
cians to replace Brandwein at the May 14 affair
Just before conclusion of the Aronson affair, Business
Representative Saggio raised with Brandwein the question
of his playing at his previously scheduled Alper bar mitzvah
on the next day, Sunday, May 14. Brandwein agreed to meet
Saggio in the manager's office. Later, Saggio, in the pres-
ence of General Manager Magg^i in the latter's office, told
Brandwein to telephone Alper.,b According to Maggi, he
himself made the call and told Alper (the "host"), or Mrs.
Alper's brother (Russell) with whom he also spoke what had
"transpired" at the Aronson affair; that the Alpers had "a
problem" because Brandwein "didn't have a union card";
and that Maggi did not want the Alpers "embarrassed the
same" as Aronson had been. Maggi then handed the tele-
phone to Brandwein. Russel said, "What is going on there?
I heard you had some union problems, and my sister's job
is in jeopardy." Brandwein explained the situation and of-
fered to take himself (and his friend Finkelstein who was to
play with him on May 14, supra, sec. A, 2) off the job, to
be replaced by two union musicians. Turning to Maggi
(while holding the phone), he asked him if he could obtain
two union musicians. Maggi said he would talk to other
musician leaders on the floor and then brought in one of
them. Brandwein arranged with the bandleader to secure
two union musicians (a drummer and trumpet player) to
replace himself and Finkelstein for next day's Alper affair.
15 The above findings concerning the conversations with Maggi are based
on the composite and mutually corroborative testimony of Brandwein and
Castille, which to me rang true as I observed them . Saggio's testimony as to
the duration of his stay at the meeting with Maggi, and indeed whether he
was present at all, is confusing and is at least in part inconsistent with his
prehearing affidavit. In his affidavit , Saggio quoted Maggi as telling Brand-
wein and Castille at this meeting, "I 'm surprised at you fellows working with
union men." While Maggi on direct examination claimed he had "no conver-
sation" with Saggio on May 13, on cross-examination he admitted that he
might have had one, stating , "I would imagine he said something . I don't
remember what he said:' Maggi's preheanng affidavit, given and signed in
the presence of his attorney, is replete with statements quoting Saggio at the
meeting involved . As to the substance of his own remarks, Maggi denied
telling the two bandleaders anything about the existence of "any arrange-
ments" between Huntington and Respondent, explaining "I am in no posi-
tion to say, because I don 't know anything about an arrangement." Nor
could he explain the origin of the requirement for engaging Local 802 musi-
cians contained in Huntington contracts with patrons, pleading that it had
been in such contracts before he became general manager 12 years ago. He
admitted questioning Brandwein and Castille as to why they did not have a
union "book"; and telling them that Huntington "was a union house" and
"only union musicians should be playing there," although he also claimed
that he said that because he did not want a picket line . Maggi displayed a
poor memory concerning details of the May 13 incident ( indeed confessed
having a poor power of recollection) I credit the version of the events as
described by Brandwein and Castille.
16 Saggio admitted telling Brandwein on the day in question that he "better
get somebody else . . . and don't come on the job, especially that you are
not in the union."
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saggio then "got back on the phone" and told Russel "ev-
erything is worked out, there wouldn't be any trouble .. .
tomorrow.""
B. Conclusions
1. Section 8(bx4)(iiXA) and (B), so far as here relevant,
prohibits a union or its agents "to threaten, coerce, or re-
strain" secondary or neutral employers, where "an object"
of such conduct is: (a) "to enter into any agreement which
is prohibited by Section 8(e)" ; or (b) to force or require a
secondary employer or "any person" to cease doing busi-
ness with the primary or disputing employer. Section 8(e)
makes it an unfair labor practice for a union "to enter into
any contract or agreement, express or implied, whereby
such employer ceases . . . doing business with any other
person and any contract or agreement entered into hereto-
fore or hereafter containing such agreement shall be to such
extent unenforceable and void." The primary or disputing
employer in this case was Brandwein , a nonunion bandlead-
er; the secondary employer was Huntington. As noted at the
outset of this Decision, the complaint alleges that that Re-
spondent violated Section 8(e) of the Act by maintaining
and enforcing an illegal ("hot cargo") agreement, arrange-
ment, or understanding with Huntington under which only
Local 802 bandleaders and musicians were to perform for
patrons on Huntington premises. It also alleges that Re-
spondent violated Section 8(b)(4)(A) and (B) by threaten-
ing, restraining, and coercing Huntington: (a) to force and
require Huntington to maintain and enforce its "hot cargo"
agreement , arrangement or understanding; and (b) to force
or require Huntington "and other persons" to cease doing
business with Brandwein, a nonunion bandleader.
2. Statutory language, as well as legislative history, dem-
onstrates that Congress adopted a broad and comprehen-
sive ban against "hot cargo" provisions. See N.L.R.B. v.
I.B.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 ex-
press hot cargo clauses , but those which may be "implied."
The documentary evidence, credited testimony, and in-
ferences to be drawn therefrom amply support the com-
plaint allegation that Respondent and Huntington during
the period here involved maintained and enforced an illegal
hot cargo agreement , arrangement, or understanding. In
reaching this conclusion I rely on the following circum-
stances : the longstanding (at least 12-year) clause in the
Huntington contracts with patrons that "only" Local 802
musicians "shall be employed" on Huntington premises;
Banquet Sales Manager Austin's November 9 statement to
a patron (Aronson) that the band he was to engage had to
be "union"; Is the May 10 assertion of Monnato, Local 802
trial board chairman, to Finkelstein (a dues-delinquent
member who filed the notice of engagement on behalf of
17 The above findings are based primarily on the testimony of Brandwein
and Maggi, to the extent credited
18 Although Austin did not specify the Union , the contract Aronson signed
Brandwein for the May 13 Aronson bar mitzvah affair) that
he must "give the job to a member in good standing" unless
he was reinstated in membership; the May 13 admission of
Business Representative Saggio to nonunion bandleaders
Brandwein and Castillo (who questioned Saggio's right to
check the names and cards of Brandwein' s musicians per-
forming for the Aronson affair) the Local 802 had "an
agreement" with Huntington whereby "only union musi-
cians can play" at Huntington; like admissions on that day
by Huntington's Operations Manager Ferraro and General
Manager Maggi as to the existence of such agreement, as
evidenced by the requirement in Huntington contracts with
patrons that only Local 802 musicians could perform on
company premises ; Maggi's May 13 threat to Brandwein
and Castille that he would personally evict them if they
again attempted to perform at Huntington; Maggi's active
role in satisfying Business Representative Saggio's demand
that Brandwein be replaced by a union musician to perform
at the May 14 Alper affair; and, finally, the longstanding
and free access given by Huntington to Local 802 to check
its premises for nonunion musicians.
Based on the foregoing findings I reject Respondent's
basic contentions (br. p. 6) that "[w]hat Huntington did was
done solely by them to protect their business interests by
unilateral policy without the knowledge of Local "802" ;
and that the Union only "exercised its discipline .. .
against its own members by notifying them that playing
with a nonunion musician constituted a violation of the
[union] By-laws." 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 (ii)(A) and
(B) by "maintaining bylaws provisions prohibiting its mem-
bers 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 Musicions of Greater New York, Local 802, AFM,
AFL-CIO (Random Travel, Inc., and National Association of
Orchestra Leaders), 171 NLRB 1106. To the same effect, see
Associated Musicians of Greater New York, Local 802, AFM,
AFL-CIO (National Association of Orchestra Leaders), 176
NLRB 198, 206.19 As to Respondent's first defense, the
record as whole-the undisputed evidence and the conflict-
ing testimony resolved herein-negates the claim that Hunt-
ington and Respondent were each acting pursuant to its
own devices, or for purely separate legitimate reasons. This
is not to say that the record is totally devoid of evidence
supporting Respondent's claims . Thus, Aronson, a credible
witness, testified that when the dispute between Saggio and
Brandwein first came to his attention, an unidentified Hunt-
ington manager told him that he had "no objection" to the
nonunion band and that the dispute was between the musi-
cians and the Union; however the fact is that when faced
with the need to take action, Managers Ferraro and Maggi
gave effect to an "agreement" violative of Section 8(e) of the
Act. Similarly, I can well believe, as Maggi testified, that
nonunion bands such as a "rock group that comes for Sweet
with Huntington naming Local 802 left no doubt that Local 802 was the 19 The complaint herein is not predicated on alleged enforcement of
intended labor organization Respondent's bylaws See, supra fn. 8
ASSOCIATED MUSICIANS OF GREATER N.Y. 1083
Sixteens" have from time to time played at Huntington, but
this could well have been the exception to the general ruld.
Besides, so long as the Union raised no issue (there is no
evidence that it knew of the presence of such nonunion
bands), why should Respondent, anxious as it was to avoid
disruptions, raise it?
I conclude that the preponderance of substantial credible
evidence fully supports the complaint allegation that Re-
spondent violated Section 8(e) of the Act by maintaining
and enforcing an illegal hot cargo argeement during the
period here involved.
3. As found (sec. A. 4), on May 13, Business Representa-
tive Saggio, in the presence of Operations Manager Ferraro
and nonunion bandleader Brandwein and Castille, threat-
ened to "pull every musician out of the [Huntington] build-
ing" and also the unionized waiters unless he was allowed
to enter the room where the Aronson affair was in progress
in order to check on the union standing of the musicians in
Brandwein's band. Also on the same day, Saggio warned
that he would return the following day to check if Brand-
wein was again performing at the Alper affair, indicating
that if he did, "you guys are going to go through the same
thing . . . as you did today." Earlier, on May 10, Monnato,
Local 802 trial board chairman, warned Finkelstein (who
filed the notice of engagement for Brandwein and who,
Monnato believed, was to be the bandleader at the May 13
Aronson affair) that he would be "pulling the musicians
out" unless Finkelstein "readmit[s] himself to membership
or give[s] the job to a member in good standing. Respondent
accomplished its objectives when later on May 13, General
Manager Maggi told Brandwein and Castille that they were
"troublemakers" and that he himself would "throw" them
out of Huntington premises if they again came around; and
when Maggi personally participated in arranging for an
all-union band for the May 14 Alper affair, replacing
Brandwein and Finkelstein with union musicians.
Based on all the surrounding circumstances, I find and
conclude that an object of Respondent's threats was to force
and require Huntington to maintain and enforce its "agree-
ment" with Huntington to employ only members of Re-
spondent on Huntington premises, in violation of Section
8(b)(4)(ii)(A) of the Act. I further find that an object of the
same conduct was to force and require Huntington "and
other persons" (including patrons of Huntington) to cease
doing business with nonunion bandleaders such as Brand-
wein-in violation of Section 8(b)(4)(ii)(B) of the Act.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(e) of the Act by main-
taining and enforcing an agreement, arrangement, or under-
standing with Huntington under which only Local 802
bandleaders and musicians would be allowed to perform on
Huntington premises.
20 The fact that the initial agreement was made outside the 10(b) 6-month
period does not, of course , bar a finding that enforcement of the agreement
within the 6-month period constitutes a violation See N.L.R.B. v. IBEW,
Local 769, supra, 164; I.L.A. Local No. 1694 (The Board of Harbor Commis-
sioners, Wilmington, Del.), 137 NLRB 1178. 1186-87, enfd. 331 F.2d 712
(C.A. 3, 1964); District No. 9, I.A M. [Greater St. Louis Automotive Trimmers
& Upholsterers Assn. ] v. N.L.R B, 315 F.2d 33,35 (C.A.D.C., 1962), enfg. 134
NLRB 1354, 2358-59.
2. By threatening, coercing, and restraining Huntington
with ,an object of forcing or requiring Huntington to main-
tain and enforce the aforesaid agreement, and with the fur-
ther object of forcing or requiring Huntington and other
persons to cease doing business with Brandwein, a nonun-
ion bandleader, Respondent violated Section 8(b)(4)(ii)(A)
and (B) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Reponsdent has engaged in unfair
labor practices within the meaning of Section 8(e) and
8(b)(4)(ii)(A) and (B) of the Act, I shall recommend the
customary cease-and-desist order and the usual affirmative
relief ordered in cases of this nature, including 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 at least two recent adjudicated cases21 I find that
there is real danger that Respondent may in the future
engage in unlawful activity, the same or similar as here
found. Accordingly, I shall recommend that a broad order
designed to extend the protection of the Act to primary and
secondary employers other than those here involved 22
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 make the following:
ORDER23
Respondent, Associated Musicians of Greater New York,
Local 802, American Federation of Musicians, AFL-CIO,
its officers, representatives, and agents, 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., or with any other employer,
whereby such employer agrees that only Respondent's
members be allowed to provide or perform services as musi-
cians or bandleaders.
(b) Threatening, coercing, or restraining Huntington
Town House, Inc., or any other person engaged in com-
21 Associated Musicians of Greater New York, Local 802, AFM, AFL-CIO
(Random Travel, Inc., National Association of Orchestra Leaders), supra; Asso-
ciated Musicians of Greater New York, Local 802 (National Assocation of
Orchestra Leaders), supra
22 See, e.g , Associated Musicians etc Local 802, supra, fn. 2; Glass Workers
Local Union 1892, Painters (Frank J Rooney, Inc.), 141 NLRB 106. Charging
Party's request that the Order herein also requires publication of the notice
to be posted in Respondent's official publication, as was done in the two
recently issued cases involving Respondent (supra, In. 21), is denied. Here,
unlike in the preceding cases, there is no evidence that Respondent had
publicized the illegal activity. Indeed , in one of the two cases, it was specifi-
cally found that Repondent violated Sec. 8(b)(4) by the very act of "publishing
in its official publication , Allegro, a notice announcing that [the nonunion
bandleader] has been expelled from Local 802 and that members may not
play in any orchestra conducted by him," Associated Musicians of Greater
N Y., Local 802, supra, 1115.
23 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, recommendations , 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.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce , or in an industry affecting commerce , where, an
object thereof is to enforce , maintain , or otherwise give
effect to any agreement , arrangement, or understanding
whereby such employer or person agrees to allow only
Respondent's members to perform services as musicians or
bandleaders on_jpremisses ; and/or to force or require
Hl ngton Town House , Inc., or any other person, to cease
doing business with Howard Brandwein , doing business un-
der the name Brandy King Orchestra , or with any other
person.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." Copies of said no-
tice, on forms provided by the Regional Director for Region
29, shall, after being signed by Respondent's authorized
representative , be posted by Respondent immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to members are customarily posted . Reason-
able 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 frthe receipt of this Order, what steps
have 1 en taken to comply herewith.
present their evidence before an Administrative Law Judge
of the National Labor Relations Board, it has been found
that we, Associated 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 ef-
fect to any agreement or understanding with Hunting-
ton Town House, Inc., or any other employer, whereby
such employer agrees to allow only Local 802 member
musicians and bandleaders to perform on its premises.
WE WILL NOT threaten, coerce, or restrain Huntington
Town House, Inc., or any other person engaged in
commerce, or in an industry affecting commerce,
where an object thereof is to enforce, maintain, or oth-
erwise give effect to any agreement or understanding
whereby such employer or person agrees to allow only
Local 802 members to perform services as musicians or
bandleaders on its premises; and/or to force or require
Huntington Town House, Inc., or any other person to
cease doing business with Howard Brandwein, doing
business under the name Brandy King Orchestra, or
with any other person.
2+ 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 "
APPENDIX
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
Dated By
ASSOCIATED MUSICIANS OF
GREATER NEW YORK, LOCAL
802, AMERICAN FEDERATION OF
MUSICIANS , AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 16 Court Street, 4th Floor, Brook-
lyn, New York 11241, Telephone 212-596-3750.