Associated Musicians of Greater N.Y., Local 802

National Labor Relations Board - Board Decisions

May 28, 1969

176 N.L.R.B. 198 (N.L.R.B. 1969)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Musicians of Greater New York, Local
802, AFM , AFL-CIO and National Association of
Orchestra Leaders . Case 2-CC-1070
May 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULIOCH AND MEMBERS
FANNING AND BROWN
On February 14, 1969, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
limited exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the limited exceptions and
brief,' and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
limited modification in the Order noted herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Associated Musicians of Greater New York, Local
802, AFM, AFL-CIO. New York, New York, its
officers , agents , and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order , as so modified.
A. Substitute for the last clause of the Trial
Examiner 's Recommended Order, in paragraph l(a)
beginning with "where in either case an object
thereof," the clause "where in either case an object
thereof is to force Joe Carroll or any other
self-employed person or employer to join the
Respondent."
B. Substitute for the last clause in paragraph 1(b)
of the Trial Examiner 's Recommended Order,
beginning with "where an object thereof," the clause
"where an object thereof is to force or require Joe
Carroll or any other self-employed person or
employer to join the Respondent."
C. In the notice attached as an Appendix to the
Trial Examiner's Decision, in the first indented
paragraph thereof replace the last clause beginning
"where in either case an object thereof" with the
clause substituted in A above.
D. In the notice attached as an Appendix to the
Trial Examiner's Decision in the second indented
paragraph thereof, replace the last clause beginning
"where an object thereof" with the clause
substituted in B above.
'As the Respondent has filed no exceptions , we find it unnecessary to
pass on the General Counsel 's contention that the Trial Examiner should
have resolved an alleged credibility conflict over what the Union did or did
not tell Carroll vis-a-vis rejoining the Union.
'We find merit in the General Counsel 's exception to the failure of the
Trial Examiner to recommend a "broad" rather than a "narrow" Order.
We agree with the General Counsel that such "broad" Order is warranted
in view of our finding of a similar violation in another recent case,
Associated Musicians of Greater New York. Local 802, AFM, AFL-CIO
(Random Travel , Inc.), 171 NLRB No. 149, and the admission that it is
Respondent 's policy to unionize all conductors
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case was tried before me in New York
City, New York, on October 28, 1968, on complaint of
the General Counsel of the National Labor Relations
Board and an answer filed by Associated Musicians of
Greater New York, Local 802, AFM, AFL-CIO, herein
called the Respondent or the Union.' At issue is whether
Respondent violated Section 8(b)(4)(i),(ii)(A) of the
National Labor Relations Act, as amended, by certain
conduct to be detailed hereinafter. At the conclusion of
the hearing, the parties orally argued their respective
causes . A brief has been filed by the Charging Party,
National Association of Orchestra Leaders, which has
been duly considered.
Upon the entire record in this proceeding, I hereby
make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
A. Jurisdictional Facts
The complaint alleges that Joe Carroll, doing business
under the trade name of "Joe Carroll Orchestras" and
herein called Carroll , is and has at all times material been
a self-employed person and an employer engaged in
'The complaint, which issued on February 27, 1968, is based upon a
charge which was filed and served on January 3, 1968.
'I have taken official notice of the transcript in a proceeding instituted
under Sec . 10(1) of the Act by Ivan C. McLeod, Regional Director for
case . 2 of the National Labor Relations Board , against Respondent, which
was heard on March 8 , 1968, before the Honorable William B. Herlands,
District Judge for the Southern District of New York . Judge Herlands
ruled , after hearing , that there was reasonable cause to believe that
Respondent had engaged in unfair labor practices within the proscriptive
ambit of Sec . 8(b)(4(i), (hXA) and he issued a temporary restraining order
against Respondent pending final disposition of the instant proceeding. The
findings of fact made herein are based upon the evidence adduced before
the District Court, as well as the exhibits proffered in this case.
176 NLRB No. 29
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 199
commerce and in an industry affecting commerce within
the meaning of Sections 2(l), (2), (6), and (7) and 8(b)(4)
of the Act. In its responsive pleadings, the Union denies
that Carroll is either a person who is self-employed or an
employer engaged in commerce within the purview of the
statute.
It is undisputed and I find that Carroll is the founder
and sole proprietor of an enterprise styled as "Joe Carroll
Orchestras" which is registered to and does business in
New York County, New York, and also transacts business
in the States of New Jersey, Connecticut, Virginia, North
Carolina, and South Carolina. Carroll maintains his
principal office in New York City where he is engaged in
providing bands, orchestras, musical entertainment and
variety talent to night clubs, conventions, country clubs,
hotels, private parties, universities, and industrial
establishments. During 1967, which year is representative
of his annual operations generally, Carroll performed
services valued at approximately $246,000, of which
$58,000 was derived from engagements undertaken outside
the State of New York. In addition, Carroll has
performed services in an undisclosed monetary amount for
such commercial clients as International Telephone and
Telegraph Company, Equitable Life Insurance Company,
General Motors Corporation, Borden Company, and
Reynolds Metals Company, all located within the State of
New York, and all of which have previously been found
by the Board to be engaged in commerce within the
meaning of the Act under its direct inflow or outflow
jurisdictional standards. In light of the foregoing, I find
that Carroll is, and has at all times material herein been,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.'
B. The Status of Carroll
transportation and overnight expenses, such as hotel
accommodations and meals. Moreover, Carroll's
musicians are recompensed by payroll checks which are
issued by him and from which he withholds social security
and other taxes. So far as appears, his remuneration
consists of the difference between his costs in providing
the entertainment and the amount he receives under his
agreement with the client.' When an event is scheduled,
Carroll personally oversees the arrangement of the
orchestra on the bandstand and monitors the quality of
the performance. From time to time, he acts in the
capacity of a leader of his orchestra and, if the occasion
arises , he may fill in on the drums while he conducts.'
Carroll testified without contradiction and I find that he
has never performed as a "side-man," i.e., a rank-and-file
musician, in any other orchestra.
In view of Carroll's relationship to the musicians who
are presented under his auspices, as evidenced by his
authority to hire, discipline, and discharge them, by his
control over the manner and style of their performance
and the matter of their attire, by his procurement of
customer-contracts which afford productive employment
for the musicians, by the fact that he compensates them,
withholds assorted taxes from their income, and pays their
travel and living expenses , and by the further fact that he
conducts their musical groups or otherwise supervises their
musical efforts to insure the requisite quality of
performance, I am convinced and find that Carroll is an
employer within the meaning of Section 2(2) and
8(b)(4)(A) of the Act.' Moreover, as Carroll is the sole
proprietor of his enterprise and garners his income from
selling musical services to purchasers for a price, I find
that he is also a self-employed person within the scope of
Sections 2(1) and 8(b)(4)(A) of the statute.'
II. THE LABOR ORGANIZATION INVOLVED
The evidence is uncontroverted and I find that Carroll
has been engaged in the business of supplying musical
services and entertainment for clients since 1945. In the
course of his operations, Carroll maintains an office in
New York City which is staffed by his wife and some
clerical employees, from whence he solicits business both
telephonically and by mail. All office equipment,
telephones, lighting, fixtures, stationery, and advertising,
as well as a music library of special arrangements valued
in the thousands of dollars, are paid for by Carroll.'
During 1967, he utilized approximately 225 musicians to
perform for his clients. In the main, Carroll contracts for
"single" engagements which, in the jargon of the industry,
refers to engagements which last for less than a week.
Although Carroll retains a full-time employee who is
known as a "contractor" in the trade to procure musicians
for particular performances, it is Carroll who ultimately
hires, disciplines, or discharges these individuals, and who
determines whether to reemploy certain musicians because
of their peculiar talents. When an orchestra is hired for a
special function, Carroll decides the style of music to be
played and dictates the type of uniform to be worn by the
musicians, occasionally bearing the, cost of unusual attire.
Each orchestra is identified by plastic decals as either
"Joe Carroll Orchestra of New York" or "Joe Carroll
Music New York." If his performers are required to
travel to distant engagements , Carroll foots the bill for all
'See Associated Musicians of Greater New York, Local 802, AFM,
AFL-CIO (Random Travel . Inc.), Ill NLRB No. 149.
'Carroll's telephone bill averages $4,500 annually . He also advertises his
orchestras in the " Redbook" for which he is charged $25 per month.
The complaint alleges , the answer admits, and I find
that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions and the Evidence
In his complaint, the General Counsel asserts that
Respondent violated Section 8(b)(4)(i),(ii)(A) of the Act
by (1) maintaining and enforcing bylaw provisions which
prohibit its members from performing in orchestras or
bands conducted by Carroll, or in which Carroll performs
as a musician; (2) regularly publishing in its official
monthly publication styled "Allegro" a notice proclaiming
that Carroll had been expelled from Respondent's ranks,
and reminding its members that they may not play in
Carroll's orchestras; and, (3) insisting that Carroll join
and remain a member of Respondent, all with an object of
'Cf. Carroll v. American Federation of Musicians of U.S. & Can., 372
F.2d 155, 159 (C.A. 2)
,it is Carroll's undemed testimony that he frequently employs a
subleader to direct the orchestra rather than conduct the group himself, in
which event he stations himself behind a screen on the bandstand to
observe the performance.
See Associated Musicians of Greater New York , Local 802. AFM.
AFL-CIO (Random Travel, Inc.). 171 NLRB No. 149 ; Carroll v.
American Federation of Musicians of U.S. & Can ., 372 F.2d 155, 159
(C.A. 2).
'See Painters Local Union No. 249, Brotherhood of Painters , Decorators
and Paperhangers of America. AFL-CIO (John J Reich ), 136 NLRB 176.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forcing or requiring Carroll to reacquire membership in
Respondent. The Union challenges the foregoing
contention, professing that it has not in fact attempted to
wean Carroll's membership, an, claiming that its entire
course of conduct was designed solely to prohibit its
members from working with Carroll, a path which it
could lawfully trod.
Carroll was a member of Respondent in good standing
from 1945 until 1961. On June 15, 1960, Respondent
announced that, henceforth all union members should
receive a wage increase of $4 per man per engagement,
and in April, 1961 it struck to enforce payment of the
increase . However, Carroll refused to pay his musicians
this added increment, in consequence of which Respondent
brought intra-union charges against him and, after a trial,
he was expelled from membership in 1961. The parties
stipulated and I find that, commencing in the latter year,
the Union regularly published in "Allegro," a monthly
publication distributed to some 32,000 members, the
following notice:
EXPELLED
MEMBER
JOSEPH (Joe) CARROLL
(Drums)
Members may not play in orchestras conducted by him
or in orchestras in which he performs.'
The parties further stipulated and I find that, at all times
material to this proceeding, Respondent maintained
bylaws which rendered it "a violation and detrimental to
the welfare" of Respondent for a member "To perform in
or with a band or orchestra which is led or conducted by a
nonmember of the Union or in which a nonmember plays
an instrument or performs any other work of a musician."
The Union concedes and I find that these bylaw
provisions have been enforced by the expulsion of certain
members who performed with Carroll.
It is uncontroverted and I find that, on various
occasions between 1961 and the end of 1963, Carroll
unsuccessfully petitioned both State and Federal courts to
compel Respondent to reinstate his membership. Then, in
1965, Carroll and Respondent's President Max Arons
lunched together on two occasions during which the
subject of Carroll's reacquisition of membership was
discussed . Carroll informed Arons that it was
embarrassing to the former that, pursuant to an
understanding reached during litigation before the New
York Federal Circuit Court of Appeals, Carroll was
unable to conduct his orchestras or play the drums in his
bands. Carroll sought to work out an arrangement similar
to the one which a fellow orchestra leader named Cutler
had made with Respondent whereby, upon payment of the
back wages to his musicians which had been established in
1960, he could remain a member of the Union and appear
on the bandstand. Arons noted that the matter was no
longer in his hands and suggested that Carroll make peace
with the American Federation of Musicians by filing an
application for readmission to Respondent with the
International 's Executive Board. Whereupon, Carroll did
so and tendered a check in excess of $100 along with his
application for reinstatement. Sometime thereafter, Arons
'At tunes, the names of other expelled members appeared in the notice.
returned the application and check to Carroll with the
notation that conditions were not ripe for Carroll's
readmission to membership.
Events apparently abided until 1967, when Arons and
Carroll again met for lunch. It is the undisputed testimony
of Frank LiVolsi, the president of a sister local in
Stamford, Connecticut, and chairman of the American
Federal of Musicians' Legislative Committee, that he
arranged for the meeting as a result of the following
happenstance. The son of the Charging Party's attorney,
Godfrey P. Schmidt, was employed in LiVolsi's office.
During a conversation with the son in the summer of
1967, LiVolsi was informed of the familial connection and
the son inquired whether LiVolsi cared to "meet my dad
who represents the orchestra leaders." LiVolsi expressed
delight at the suggestion , and, shortly thereafter, he and
Attorney Schmidt dined together. In the course of the
meal, Schmidt asked LiVolsi whether the latter knew
Carroll and Charles Peterson, who is also an orchestra
leader as well as an official of the Charging Party, and
who was expelled along with Carroll from membership in
the Union in 1961. When LiVolsi replied that he had
never met these men, Schmidt volunteered to schedule a
luncheon date and LiVolsi avidly accepted the offer.
According to LiVolsi's further testimony, I find that he
lunched with Carroll and Peterson as arranged by
Schmidt. During the repast, the diners "discussed our
national problems and we also discussed the
[Respondent's] problem which Carroll was involved in."
Carroll stated that "it was getting tiresome, fighting back
and forth, and he had hoped that something could be done
to squash all this." Carroll then inquired whether there
was "anything he could do" to pacify the situation, to
which LiVolsi responded that he, too, wished to bring the
parties amicably together. Thereupon, LiVolsi remarked
that he "would try to get hold of Max Arons and have
luncheon some day where the four of us could get
together. . . . " Following this luncheon, LiVolsi
telephoned Arons to report that he had met with Carroll
and Peterson, and LiVolsi invited Arons to join "us for
luncheon to see if we could explore some friendly
program ," an invitation which Arons initially declined
with the comment that "I will not meet with them
[Carroll and Peterson]. I am not interested." Four or five
weeks later, LiVolsi again pressed Arons to accept the
former's earlier invitation. On this occasion, LiVolsi
advised Arons that "I think it would be nice if we sat
down because I think we are all tired of all this fuss that
is going on all over from coast to coast, and I think I
convinced Max [Arons] to sit down with us." According
to Arons, he was prompted to attend the luncheon by
LiVolsi 's declaration that "Carroll wants to sit down and
have lunch with you and discuss with you - this whole
litigation that is costing the Union a lot of money," to
which Arons responded "well, in that way I will set down
with you and Carroll." It is LiVolsi's testimony that no
mention was made in this conversation with Arons of any
expressed desire by Carroll to gain readmittance to the
Union.
Following his second conversation with Arons, LiVolsi
placed a call to Carroll to finalize plans for the luncheon.
After some prodding, Carroll consented to meet with
Arons and a date was set for August 20, 1967.
Meanwhile, by letter of July 13, 1967, the International's
Executive Board apprised Arons that Carroll's application
for reinstatement in the Union had been rejected. This
intelligence was reflected in the minutes of Respondent's
executive board meeting of July 20, 1967, and was
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802
reproduced in the September 1967 issue of the publication
"Allegro" which read as follows:
Executive Board Minutes, Thursday, July 20, 1967:
The following decision of the Ihternational Executive
Board was read before the Board. Consideration is
given to the request of Joseph Carroll for permission
for reinstatement in Local 802, New York, New York.
On motion and passed it is decided that the request is
denied.
According to Carroll, he first learned that his application
had been formally rejected when he read "Allegro" either
in late September or early October.
The August 20 session took place as scheduled. In
attendance at the luncheon were Arons, LiVolsi, Carroll,
and an individual named Vincent Badale, who is a
member of the Union's trial board. It is Carroll's
testimony that, at the outset of the discussion, LiVolsi
made a general statement concerning his desire that the
entire matter between Carroll and Respondent be resolved
in a friendly and constructive manner, and indicated that
this was his purpose for scheduling the meeting . Because
LiVolsi was foreign to the controversy between Arons and
Carroll, the latter proceeded to recount the events which
transpired in 1965 when Carroll met with Arons and
essayed to regain his union membership. At the conclusion
of this presentation, Arons remarked that the
International parent body had not yet acted on Carroll's
1965 application although Arons, by his own admission on
the stand, acknowledged that he had received written
notification from the International Executive Board as
early as July 13, 1967 that Carroll's application had been
turned down. Carroll then reminded Arons that
Respondent's new contract forms which appeared in early
1967 were under challenge in the Federal courts as being
violative of the Federal Anti-Trust Laws. At this juncture,
Arons inquired whether Carroll would agree to reimburse
his musicians for the difference in wages which the
Respondent had negotiated in 1960 and which Carroll had
withheld over the course of the years. Inasmuch as the
withholding of the negotiated increases had occasioned
Carroll's expulsion from the Union, Arons explained that
it might facilitate the former's reinstatement to
membership if the issue was presented to the International
Executive Board in this light. Carroll promptly replied in
the negative, and the luncheon terminated with the
understanding that any further colloquy would have to be
initiated by Respondent's officers.
Carroll further testified that, shortly before Labor Day
in 1967, he unsuccessfully attempted to contact Arons to
pursue the matter of his reinstatement further. However,
he did manage to speak with Badale and , during their
conversation, he informed Badale that he had experienced
a change of heart concerning the payment of back wages
and requested that Badale convey this information to
Arons. A few days after Labor Day, Carroll again
telephoned Badale to remind the latter that Carroll stood
ready to recompense his musicians for the difference in
wages which he had declined to afford them since 1960.
Carroll was assured that this information had reached
Arons.
Arons' version of the August 20, 1967, luncheon
meeting is as follows. LiVolsi opened the discussion by
relating that he had arranged for the confrontation in
order to achieve "peace and [have] all the litigations
settled with the orchestra leaders." Carroll broached the
subject of the new Union contracts and the litigation
which had ensued concerning them. He then inquired,
201
"how do I get back into the Union?" Arons replied that
Respondent was not opposed to readmitting him to
membership and explained that it was the International
union which barred the door to his reinstatement. Carroll
suggested that the Respondent exert pressure upon its
parent body to effect his readmission, to which Arons
replied that Respondent would undertake such action
provided Carroll reimbursed his employees for the back
wages due and owing them under the earlier Union
agreement . In this connection, Arons made it clear that
the only stumbling block facing Carroll's reacquisition of
membership, so far as Respondent was concerned, was
Carroll's failure to satisfy this debt which amounted to
approximately $2,500 and Arons pledged that he "will
have the Executive Board favor his application and put up
a fight with the [International union] to get him back,"
adding that "I would go, on behalf of Mr. Carroll to the
Federation, and fight to get him back as he suggested."
According to Arons, Carroll remarked "I will go along, I
will pay the back wages. You go ahead." At the
conclusion of the luncheon, Arons suggested that Carroll
resubmit his application for membership.
LiVolsi, who sponsored the luncheon, recounted on the
stand that he opened the discussion by addressing Carroll
and commenting that "I think he [Arons] is fair and I
think he is a good president; and he is trying to do a lot
for a lot of people that think they are fighting against
him." Turning to Arons, LiVolsi remarked that "Carroll,
in the short time that I know him, seems to be a pretty
sincere guy, and I think he wants to get together, and
even though there are many problems on an international
level, that at least we might be able to get together on a
local level." On this note, Arons and Carroll took up the
conversation and the topic of backpay was discussed.
LiVolsi remembered that Arons told Carroll that if the
latter "paid whatever he owed the Union, that he would
be restored to membership." Carroll replied, "well, let me
know what it is ; find out what the amount is and maybe
we can get together." LiVolsi interjected and asked, "what
can we do to get you both together so Carroll can come
into the Union?" Arons stated that "if Joe Carroll pays
up his back dues, whatever he owes, I think we can take
him back into membership." Carroll's parting comment
was "what do I owe? And get back to me and maybe we
can get together."10
Continuing the narrative, Carroll had contracted to
perform for the Iona College Board of Lay Trustees at its
annual dinner scheduled to be held at 8 p.m. on
November 1, 1967, at the Americana Hotel in New York
City. For this event, he had programmed an orchestra
comprised of 10 men. During the morning hours, he
telephoned several of his favorite musicians , including Ted
Reade on drums, Charles McCarty on trumpet, and Phil
Olivella and Rocky Gaglano on saxophone. These
side-men had been alerted in the spring of 1967 regarding
this engagement and, at all times material to this
proceeding, were members of Respondent in good
standing . During his conversations with the men, Carroll
exclaimed that "I intend to be there [at the Americana
Hotel] personally, I was going to conduct that orchestra
with my arms more outstretched than they had been in the
last 20 years, I wasn 't going to be down on the floor
where I had been crawling for 4 or 5 years, but I was
going to be there in front of that band." Carroll inquired
whether these musicians would play with him that evening.
"Badale, who was privy to this conversation , was not called as a witness
in the 10(1) proceeding.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each replied that he had communicated with Respondent
for clearance, and had decided not to accept the
engagement . Because Carroll had anticipated this
response, he had previously contacted replacements for
these side-men and they filled in for the recalcitrants."
Believing that he might encounter opposition in some
form from Respondent, Carroll invited Charles Peterson,
an official of the Charging Party, to assist in policing the
Americana performance. At 7:45 p.m., while Carroll was
setting up the orchestra, Union officials Louis (Russ)
Russo and Vincent Grande entered the Americana
ballroom and approached the bandstand. Peterson, who
had been standing guard at the hotel entrance, was
informed by one of the musicians that Russo and Grande
were in the ballroom, in consequence of which Peterson
repaired to that locale. Before Peterson arrived, Carroll
descended from the bandstand and asked the officials the
reason for their presence. Russo countered that, in
accordance with Respondent's established practice of
which Carroll was aware , he and Grande had come to
"check the musicians," by which he meant that his
purpose was to insure that all of Carroll's musicians were
members of Respondent in good standing. Carroll retorted
that "I do not belong to your Union, you are not going to
talk to employees, you have no right to be in this private
banquet room in the first instance, and if you don't leave
immediately I will have you thrown out bodily." While
Russo or Grande sought to defuse the situation, Peterson
approached the bandstand and joined in the discussion. It
is Carroll's testimony that, at this juncture, Russo blurted,
"We want you back in the Union," to which Carroll
responded, "Well, that's a switch isn't it? If you read the
minutes of the Executive Board dated July 20, 1967 you
will see that my application for reinstatement was
definitely turned down." Grande took issue with Carroll's
observation, but was corrected by Russo who remarked
that Carroll's rejection as a Union member had appeared
in "Allegro ." Russo then told Carroll , "But never mind
all that . we want you back in the Union." Before
Russo and Grande were led away to an adjoining room by
Peterson to continue the discussion, Russo requested that
Carroll telephone Respondent's office the following
morning to continue the dialogue. Carroll gave no
assurance that he would do so. The engagement was
fulfilled that evening without further incident.' I
Charles Peterson testified that, in his capacity as a
"trouble-shooter" for the Charging Party, he was
summoned to the Americana Hotel on the evening of
November 1, 1967, by Carroll who had anticipated that
his engagement would be interrupted by Respondent's
business agents. Upon arriving at the hotel, he was
informed that the union officials had already entered the
ballroom, and he proceeded to Carroll's assistance.
Observing that Carroll, Russo and Grande were engaged
in a conversation, Peterson approached the group and,
placing his hand on Russo's arm, Peterson cautioned that
"You don't belong here" and ordered Russo and Grande
to leave the ballroom. Russo rejoined, "now hold it
Charley; we want to settle this matter. We want Joe
Carroll back in the Union." Peterson expressed shock at
"According to Carroll's uncontradicted testimony, four of the
replacements were on tenderhooks with the Union, either because they had
filed suit against that labor organization under the Act or because they had
been brought up on charges by the Respondent for having previously
performed with Carroll.
"Carroll played the drums at this event and, from his drummer's throne,
conducted the orchestra.
this pronouncement because , in his words, "this was
something I didn 't expect ." Carroll then took over and
advised Russo and Grande to leave the ballroom. After
protesting that they simply sought to obtain the names
and membership status of the musicians in Carroll's
orchestra, the Union emissaries were led by Peterson to
an adjoining room where their conversation was
continued . Russo stated that "they [Respondent ] want to
get this mess out of the way, and they want Carroll back
in the Union and have Carroll send his application to the
Federation ; it will be accepted ." Russo added that "he has
many complaints from members of the Union that jobs
were taken by nonmembers ," and that "the Union is
losing money . I can't even get a raise for myself. Send the
application to the Federation . It will be accepted ." After
repeating this request, Russo exhorted Peterson to
persuade Carroll to telephone Arons the following day.
Peterson replied that he would have to be a witness to any
conversation between Carroll and Arons. Russo agreed to
this condition and again asked whether Carroll would
communicate with Arons on November 2. Peterson
responded inconclusively , commenting that "I'm not sure
whether we will or not . We will let you know ." The three
men then proceeded toward the ballroom where Russo
once more sought to enter . Peterson objected to Russo's
entry and the discussion concluded with the former stating
"Let's stop where it is now and then we will decide what
to do within the next few days." With this , Russo and
Grande left the premises.
Russo testimonially related that, in the course of his
duties as a general organizer for Respondent , he accepted
an invitation from Grande to visit the Americana Hotel
on November 1, 1967, to determine whether the musicians
who were engaged to perform that evening were members
of the Union . When they arrived in the ballroom, they
encountered Carroll at the bandstand who exclaimed "you
son of a bitch get out of here . You have no right in this
hotel." Russo protested that Respondent had a contract
with the establishment which permitted him to enter upon
the premises , to which Carroll rejoined that he had no
contract with the Union and once more he ordered Russo
to leave . Carroll then apologized for his rudeness and
Russo remarked, "why don ' t you cool it? I am only here
to make a routine check to see the condition of this job
and the personnel of the orchestra . Don't blow your cork,
there is no need for it ." At this point , Carroll stated, "I
want to join your Union . I want to get back to your
Union ." Russo replied , "if you really mean that, Joe, I
will extend my personal invitation to intercede for you
through my president through the Executive Board if you
really mean this." Peterson entered the ballroom and
joined the discussion, after first grabbing Russo 's arm and
proclaiming "we were prepared for war ." Russo
commented , "hold it Charley, please , I've got no business
with you , I am checking the job. I am talking to Joe
Carroll. Joe was very happy to find out that I extended an
invitation ." With this news, Peterson also expressed
pleasure and the Union representatives and Peterson
adjourned to a vacant room to converse further. During
their conversation , the men recapitulated all of the
litigation which had taken place between the Charging
Party and Respondent over the years, with Peterson
noting that " It is a pain in the neck to all of us; we are all
losing money and this thing should be done away with."
Russo concluded the conversation by telling Peterson that
"if you really mean that and if Joe really means that he
wants to come back I will do everything in my power to
go to bat for him."
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 203
Carroll did not place a call to the Union ' s office on
November 2, 1967, as Russo had suggested . However, it is
Carroll' s uncontradicted testimony that , at 10 a.m. on
that date , he received a telephone call from Russo who
inquired whether the former would visit the union office
"to process that reinstatement application , so that we can
act on it at the regular Board meeting this afternoon."
Although he harbored no intention of doing so , Carroll
falsely told Russo that he would appear as requested. The
following day, November 3, Carroll dispatched a
messenger to the union hall to procure a membership
application blank . On the same day, he placed a call to
Arons and announced that "There are many things that
require discussion before I go any further with the
question of filing a new application for membership in the
Union or for reinstatement in the Union." Carroll went
on to relate that he was scheduled to perform with his
orchestra at the St. Regis Hotel in New York City on the
evening of November 4, an engagement which he had
obtained annually , and informed Arons that "Depending
upon the outcome of this conversation , I will handle that
job in one of two ways . I will play the drums personally,
although I don't and I have always conducted the
orchestra at this particular dance -- I will play the drums
personally and I will use the same bunch of rebels I used
in the Americana Hotel on November 1, or I will use my
favorite musicians , Ted Reade , drummer , with me for 20
years and Charles McCarty, trumpet, and it is entirely up
to you depending on the outcome of this conversation."
Carroll asked that there be "peace and quiet" for the next
few days and assured Arons that the former would
communicate with Arons on November 6 to arrange for a
meeting between the parties. Arons acquiesced in Carroll's
request and stated that he would instruct his agents to
inform the musicians that they would not be penalized by
Respondent for performing under Carroll's personal
direction. However, Arons told Carroll that the Union's
permission for Carroll to conduct his orchestra on this
occasion was not to be construed as setting a precedent.
Carroll agreed that this arrangement was to be only a
temporary expedient until the men met on the following
week.
Carroll , Arons, Russo , and Peterson next met in Arons'
office on November 8, 1967. According to Carroll, he
drew the membership application blank from his pocket
which his messenger had obtained from the Union on
November 3 and which he had not executed and, holding
it in his hand , he informed Arons that " I think there are
many things that should be discussed before I go into the
matter of rejoining this Union ." Carroll then embarked
upon a recapitulation of all pending litigation brought
against Respondent, and told Arons that he would not
sign the application blank until the litigation had been laid
to rest because the courts might determine that Carroll
need not be a union member in order to conduct his
orchestras or play drums in his musical groups. However,
Carroll conceded that , while the only order of business on
November 8 as far as he was concerned was to discuss the
matter of his reinstatement in Respondent , he, Carroll,
"took the initiative all the way" on this subject at the
meeting and acknowledged that Arons did not at any time
broach the matter. Carroll further testified that, toward
the end of the meeting , Arons guaranteed that Carroll
would henceforth be permitted to conduct orchestral
groups comprised of union members without opposition
from Respondent , and would be allowed to perform on
the drums in bands composed of Union men , without
having to join Respondent . Arons further assured Carroll
that the former would notify all members , upon inquiry,
that it was permissible for them to work with Carroll as a
conductor as well as a performer. Carroll thereupon asked
Arons whether there was anything that could be done
about the notice in "Allegro" relating to Carroll' s status
as a nonunion member . Arons replied that the next issue
of the publication was to be printed on November 15.
Carroll did not press Arons on the matter of removing the
notice , and it continued to be printed in that journal until
February 1968. As Carroll and Peterson prepared to leave
Arons' office, Carroll inquired whether he could utilize the
services of three named "guys you threw out of the
Union," stating that "I would rather use those 3 men
rather than new men or strangers." Arons responded,
"They can play [with you] too." Finally, Carroll admitted
that, as a result of this conference, he was never thereafter
inhibited by Respondent from conducting orchestras
composed of Union members or from playing the drums
in union -staffed musical combinations.
Arons testified that he had learned of the Americana
Hotel incident from Russo and on November 3, 1967, he
received a call from Carroll and Peterson in which Carroll
reported that he had experienced some difficulties in
carrying out his engagement at that location on November
1. Carroll stated that he had scheduled an important
performance at the St. Regis Hotel for the next Saturday
evening and requested that he be permitted to conduct his
orchestra rather than hide behind a screen. He also
promised that , if he was allowed to direct his musical
group, he would meet with Arons on the following
Monday, November 8, to discuss "the orchestra leaders'
attitude with you." Arons replied, "All right, Joe, I will
tell the business agent not to embarrass you. You can
conduct and I will take it up with my [executive] board
and explain to them ." Arons further related that Carroll
and Peterson appeared at his office on November 8 and a
discussion ensued concerning the Americana Hotel
episode . According to Arons , no reference was made in
their conversation about Carroll's application for
membership in Respondent inasmuch as this subject "was
a dead issue because the [ International union] refused to
take him into the Union." Carroll and Peterson asked
that peace prevail between the parties and the "status
quo" maintained until the pending Federal Anti-Trust suit
was resolved by the United States Supreme Court. Arons
inquired as to when a decision by that tribunal could be
expected, and Carroll indicated that it might take 3 or 4
months . Arons then declared that he would recommend to
his executive board that Carroll be permitted to conduct
his orchestras and to play in his bands as though he were
a Union member , and that he would instruct his delegates
not to interfere with Carroll's performances until the
Supreme Court had rendered its opinion in the lawsuit.
With this, the parties shook hands and the meeting ended.
Russo maintained in his testimony that, following his
visit to the Americana Hotel on November 1 and his
conversations with Carroll and Peterson , he reported the
events which had transpired to Arons. Russo told Arons
that the former "was very much surprised to hear Mr.
Carroll say, I want to get back in the Union and I said if
you really mean this, Joe, I will extend my personal
invitation ." Russo also informed Arons that Carroll was
told to file an application for readmission in the Union.
On November 8, Russo met with Carroll and Peterson in
Arons' office. Russo testified that Carroll and Peterson
"were expressing their happiness at the intentions we were
showing to get them back into our Local ," and that "I
explained we would do everything we could to process it."
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arons indicated that he had recommended to
Respondent's officers that Carroll's application be
approved. Russo then reminded Carroll that his
readmission into union membership depended upon
approval by the International union, and Russo expressed
the hope that "everything works out fine." Carroll
importuned Arons to permit the former to fulfill three or
four engagements which had been scheduled during the
ensuing months by conducting and playing the drums.
Arons readily agreed to this entreaty, pending resolution
of the Anti-Trust proceeding before the Supreme Court.
Carroll's next communication with an official of the
Union occurred on December ll. On this occasion,
Carroll spoke with Respondent's Secretary Louis Critelli
who informed Carroll that he had given incorrect
information to a bass violinist. Critelli reported that the
musician had telephoned to inqure whether it was
permissible for him to play in an orchestra conducted by
Carroll without drawing the Union's wrath, and Critelli
advised the performer that he would be subjected to
charges by Respondent in the event that he fulfilled the
engagement . Carroll related in his testimony that the
pu rpose of Critelli's telephone conversation was to assure
Carroll that Critelli was in error in rendering this advice
and that he had so informed the musician.
Carroll's concluding conversations with Arons took
place in a National Labor Relations Board hearing room
on January 10 and 11, 1968 during a hearing on unfair
labor practice charges which the Charging Party had filed
against Respondent under the Act. When the hearing
recessed on January 10, Arons approached Carroll and
said , " I have the matter of your reinstatement all
straightened out. I had a big fight with Kennin and
Adler," the parent union ' s president and counsel,
respectively. Arons added that, "If I [Carroll] signed the
application blank for reinstatement, before it went to the
[international union] it would be clearly marked with
having been approved by [Respondent's] Executive Board,
and then it would be sent on to the [international union],"
and Arons concluded the conversation with the remark
that "then you can withdraw the charge" which Carroll
filed in the instant case. The following day at the
conclusion of the hearing, Arons and Carroll again
conversed , this time in company with Respondent's
Attorney, Eugene Victor. Speaking first to Victor, Arons
stated, "I told Carroll the big fight we had . you
[Victor] were there - the big fight I had with Kennin and
Adler over the matter of this reinstatement," to which
Victor replied, "But, Mr. Arons, you know it doesn't
make any sense for Carroll to rejoin the Union at this
time." Arons then remarked, "I want him to have what
Cutler has," a reference to another bandleader whose
membership in Respondent had not been placed in
jeopardy because he had reimbursed the Union for back
wages which he had withheld from his musicians. As the
men were about to leave the hearing room, Arons told
Carroll, "Don't forget to call me now and we will get this
matter straightened out." Since this date, Carroll has had
no further conversations with any Union officials
regarding the matter of his reinstatement to membership.
Arons testified that, at the hearing on January 10,
1968, he expressed his surprise and dismay to Carroll at
the latter's having filed additional unfair labor practices
against Respondent which gave rise to this proceeding. In
this conversation, Arons told Carroll, "Joe, I am shocked.
Here I just had an argument with the general counsel of
the AFM - the house counsel, as he put it - Mr. Adler
and Mr. Kennin, and Gene Victor was with me, and I told
him that Joe Carroll wants to come back, Local 802 is
going to approve his application, and you fellows refused
to take him in, and here we get a citation that we are
unfair, Joe." Carroll replied, "That can always be
withdrawn."
Rounding out Arons' testimony, he conceded and I find
that it is Respondent's general policy to require that all
conductors who lead an orchestra or band which is
composed of Union members must themselves be
members of Respondent. He further admitted that
Respondent's purpose in forbidding its members to
perform in orchestras which are directed by Carroll was to
insure that the position of conductor was filled by a Union
member. Arons further acknowledged that "the effect of
enforcing this policy may be to bring pressure on Mr.
Carroll to join," although he insisted that this was not the
Respondent's object. Finally, Arons allowed as how it is
the policy of Respondent "to reinstate into membership
any expelled or former member who makes restitution or
who pays up or who comes back into good graces by
complying with the bylaw which he violated and for which
he was expelled," and that the topic of restitution was
discussed with Carroll during their meetings.
B. Conclusions
In pertinent part, Section 8(b)(4) of the Act makes it an
unfair labor practice for a labor organization
(i) to engage in, or to induce or encourage any
individual employed by any person engaged in
commerce or in an industry affecting commerce to
engage in , a strike or a refusal in the course of his
employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services;
of
(ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is:
(A) forcing or requiring any employer or
self-employed person to join any labor
organization....
The complaint alleges , the parties stipulated, the evidence
establishes, and I have heretofore found that, commencing
in 1961, Carroll was expelled from membership in
Respondent because he declined to pay his musicians who
were Union members the wage scale which Respondent
had imposed the preceding year. Following his expulsion,
and for a period of approximately 7 years, Respondent
published in its official organ "Allegro," which was
distributed monthly to some 32,000 members within its
jurisdiction, a notice announcing that Carroll had been
suspended from its ranks and cautioning them against
playing "in orchestras conducted by him or in orchestras
in which he performs." During a similar period, and,
indeed, continuing to date, Respondent admittedly
maintained bylaws which made it a violation of those
strictures and detrimental to the welfare of the Union for
any member "To perform in or with a band or orchestra
which is led or conducted by a nonmember of the Union
or in which a nonmember plays an instrument or performs
any other work of a musician." As Arons testified and I
have found, Respondent actually enforced these bylaws by
expelling musicians who performed in Carroll's musical
groups . Moreover, Arons admitted and I have found that
it was and is the Union's policy to require that all
orchestra and band conductors be members in good
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802 205
standing, and that that was the reason for exerting
pressure on its, members to refrain from performing in
Carroll' s groups.
In light of these Union-imposed sanctions against
Carroll and the member-musicians who performed or
contemplated performing for him, I conclude that their
inexorable effect was to induce and encourage Union
members to refrain from performing services for Carroll,
and to threaten, coerce and restrain Carroll within the
purview of Section 8(b)(4)(i), (ii) of the Act."
The General Counsel asserts that an object of the
foregoing conduct by Respondent was to force or require
Carroll to join the Union. He maintains that Respondent's
bylaws, its expressed policies, and the notice which
appeared in "Allegro," without more, clearly support a
conclusion that Respondent's entire course of conduct
vis-a-vis Carroll was designed to bring about his
reconversion to membership. The General Counsel further
maintains that, when this conduct is weighed together with
the conversations in which Carroll engaged with
Respondent's officials between August 20, 1967, and
January It, 1968, the Union's ultimate object of forcing
Carroll to regain his union membership becomes manifest.
For its part, Respondent counters that, far from seeking
Carroll's coerced membership, it steadfastly did not desire
Carroll as a member.
As chronicled heretofore, Carroll and Peterson testified
that, during various conversations with Arons and Russo,
the latter stated that Respondent wanted Carroll to join
the Union. In their testimony, these Union officials denied
that they urged Carroll to regain membership, claiming
that it was Carroll who sought to recapture his status as a
Union member. I deem it unnecessary to resolve this
credibility conflict for, in my opinion, the record contains
ample evidence otherwise to substantiate the General
Counsel's position that an object of Respondent's efforts
was to force Carroll's Union membership."
Arons testimonially made it clear that the Union
pursued a policy of requiring all conductors who lead an
orchestra comprised of Union men to be members of
Respondent. He also acknowledged that Respondent's
design in prohibiting members from performing in
orchestras led by Carroll was to insure that the position of
leader in those musical groups was assumed by a Union
member. Arons even went so far as to admit that "the
effect of enforcing this policy may be to bring pressure on
Mr. Carroll to join" Respondent.
In my view, it requires utilization of a peculiar brand of
dialectic to arrive at any conclusion other than that an
object of Respondent's policies and actions was to force or
require Carroll's membership. As Judge Herlands so aptly
put it in his opinion:
Respondent's president, Max L. Arons, testified that it
is respondent's `policy to unionize all people who .. .
conduct;' that it is respondent's policy not to permit a
non-union musician to conduct even when the members
"See Associated Musicians of Greater New York, Local 802. AFM,
AFL-CIO, 171 NLRB No. 149. Respondent seemingly does not take issue
with this conclusion.
"In his decision following the 10 ( l) hearing , Judge Herlands credited the
testimony of Carroll and Peterson and found that the Union directed
Carroll to perfect his membership.
At the hearing before me , the General Counsel produced Carroll and
Peterson with a view to having them testify to the identical conversations
which they had spread upon the earlier record . In the belief that the record
contained sufficient evidence to support a finding on this issue . I did not
take their testimony.
of the orchestra belong to respondent; and that any
member of respondent who played in an orchestra led
by Carroll `would be subject to charges.'
Distinguishing between the `object' of the respondent's
by-law and its `effect,' Arons claimed that it was
respondent's sole purpose or object in carrying out its
by-law and policy to create openings for conductors
who are members of respondent and that it was not
respondent's purpose or object to get Carroll to join
respondent.
Respondent must be taken to have intended the
accomplishment of the obvious, immediate and direct
effect of its conduct. This obvious, immediate and direct
object and its obvious, immediate and direct intended
effect are equatable in a casual relationship. That
intended object and effect are to bring coercive pressure
on Carroll in order to make him rejoin respondent on
terms acceptable to it. Respondent's ultimate objective
and broader purpose is to unionize all orchestra leaders
in order that only union members will fill the jobs of
leading orchestras. The immediate object and effect
vis-a-vis Carroll is one step toward the achievement of
the ultimate objective and broader purpose vis-a-vis all
orchestra leaders.'s
In sum , I am convinced and conclude that, by the
maintenance and enforcement of its bylaws against
Carroll forbidding members to perform in his orchestras,
by the publication of the notice in "Allegro" notifying
members that Carroll had been expelled from membership
and warning them not to perform in his musical groups,
and by the advancement of its policy requiring that all
conductors and leaders of orchestras and bands employing
Union musicians must be members of Respondent in good
standing, Respondent induced and encouraged its
members not to work for Carroll, and threatened, coerced
and restrained Carroll, all with an object of forcing
Carroll, as a Statutory employer and self-employed
person, to join Respondent's ranks. By the foregoing
conduct, I conclude that Respondent thereby violated
Section 8(bX4)(i), (ii) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Employer set forth in section I, above, have a close,
intimate , and substantial relations to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent had violated Section
8(b)(4)(i), (ii)(A) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In Associated Musicians of Greater New York, Local
802, AFM, AFL-CIO (Random Travel , Inc.), 171 NLRB
No. 149 , a case involving Respondent and misconduct not
dissimilar from that portrayed herein, the Board ordered
Respondent to publish the notice attached to its decision
in three consecutive issues of "Allegro" which, as
chronicled heretofore , is an official publication which the
"283 F.Supp . 176, 181-182 (S.D.N.Y.)
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent distributes to all members on a monthly basis.
In the instant proceeding, the General Counsel prays that
I fashion a remedy which would require Respondent to
publish the notice attached hereto in six consecutive issues
of "Allegro" and display it with the same degree of
prominence as the notice concerning Carroll which
appeared in that journal. In justification for this remedial
request, the General Counsel points out that the notice
pertaining to Carroll's loss of union membership was
published on a monthly basis for almost 7 years and was
prominently displayed on the final page of the publication
where union notices customarily appear. Under the
circumstances of this case, I deem the General Counsel's
request both reasonable and necessary to remedy the
impact of Respondent's unfair labor practices, and I shall
fashion the remedial order accordingly.
Upon the basis of the foregoing findings of fact and
conclusions , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Joe Carroll is an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and has at all times
material been a self-employed person within the meaning
of Section 2(1) and Section 8(b)(4)(i) and (iiXA) of the
Act.
2. Associated Musicians of Greater New York, Local
802, AFM, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing bylaw provisions
prohibiting its members from playing in any orchestra led
or conducted by a nonmember of Respondent or in which
a nonmember plays an instrument or performs any other
work of a musician; by publishing in its official
publication "Allegro" a notice announcing that Joe
Carroll had been expelled from membership in
Respondent and that members may not play in any
orchestra conducted by him or in which he performs as a
musician ; and, by maintaining and enforcing a policy of
requiring Union membership of any person seeking to
perform as a band leader or conductor irrespective of
whether that person is the employer of the musicians in
the performing orchestra, and opposing any performance
by its members in an orchestra led or conducted by such
person , Respondent had induced and encouraged
individuals employed by Joe Carroll, who is engaged in
commerce and in an industry affecting commerce, to
engage in a strike or refusal in the course of their
employment to perform services for him, and hag
threatened, coerced, and restrained Carroll.
4. Respondent engaged in the aforesaid conduct with an
object of forcing or requiring Joe Carroll to join
Respondent.
5. By the aforesaid acts , Respondent engaged in
conducwhich offended Section 8(b)(4Xi) and (ii)(A) of
the Act.
6. The aforesaid acts constitute unfair labor practices
which affect commerce within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondent, Associated
Musicians of Greater New York, AFM, AFL-CIO, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
Joe Carroll, or any other person engaged in commerce or
in an industry affecting commerce within the meaning of
the Act, to engage in a strike or a refusal in the course or
his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, and commodities or to perform any services; or
threatening , coercing , or restraining Joe Carroll, or any
person engaged in commerce or any industry affecting
commerce, where in either case an object thereof is to
force Joe Carroll to join the Respondent.
(b) Applying or enforcing its bylaws in such a manner
as to induce and encourage the members of the
Respondent, or otherwise inducing or encouraging
members of the Respondent, through publications of
notices in "Allegro," or in any other unlawful manner, to
engage in a strike or concerted refusal in the course of
their employment to perform services for Joe Carroll, or
any other person engaged in commerce or in any industry
affecting commerce where an object thereof is to force or
require Joe Carroll to join the Respondent.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Post at its office, place of business, and meeting
places, copies of the attached notice marked "Appendix."
16 Copies of said notice, on forms to be provided by the
Regional Director for Region 2, shall, after being duly
signed by Respondent's representative, be published in six
consecutive issues of "Allegro" on the final page of that
official organ, which page shall not be encumbered by any
other written material. In addition, the notice shall be
posted by Respondent immediately upon receipt thereof,
and shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to all members are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 2 signed
copies of said notice for posting by Joe Carroll, if willing.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Decision,
what steps Respondent has taken to comply therewith."
"In the event that this Recommended Order be adopted by the Board,
the words "A Decision and Order" shall be substituted for the words "a
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT induce or encourage any individual
employed by Joe Carroll, or any other person engaged
in commerce or in an industry affecting commerce
ASSOCIATED MUSICIANS OF GREATER N.Y., LOCAL 802
within the meaning of the National Labor Relations
Act, to engage in a strike or a refusal in the course of
his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, and commodities or to perform any services;
or threaten, coerce, or restrain Joe Carroll, or any
other person engaged in commerce or any industry
affecting commerce, where in either case an object
thereof is to force Joe Carroll to join our union.
WE WILL NOT apply or enforce our bylaws in such a
manner as to induce or encourage our members, or
otherwise induce or encourage our members , through
publications of notices in "Allegro," or in any other
unlawful manner , to engage in a strike or concerted
refusal in the course of their employment to perform
services for Joe Carroll , or any other person engaged in
commerce or in any industry affecting commerce,
where an object thereof is to force or require Joe
Carroll to join our union.
Dated By
ASSOCIATED MUSICIANS
OF GREATER
NEW YORK , LOCAL 802,
AFM, AFL-CIO
(Labor Organization)
207
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 36th Floor,
Federal Building, 26 Federal Plaza, New York, New York
10007, Telephone 212-264-0330.