Joe Carroll Orchestras

National Labor Relations Board - Board Decisions

Mar 9, 1981

254 N.L.R.B. 1158 (N.L.R.B. 1981)

1158
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and
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Deci-
s ior~~
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Ge.~eral
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The
briefs
Order.2
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9dministrative
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I n r , 188 F.2d
SunderlondS Incorporared,
NLIkB (1971), "[Rlatification permis-
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Hor'chens Elimbt-thrown. N.L.R.B., F.2d
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WILL
25,4
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe Carroll Orchestras Entertainment Agency,
Inc.; Roger Stanley Orchestra; Universal Or-
chestras, Inc. d/b/a Meyer Davis Orchestra;
Ben Cutler Orchestras; Tony Cabot Associates,
Inc. Associated Musicians of Greater New
York, Local 802, American Federation of Musi-
cians, AFL-CIO. Cases 2-CA-16487, 2-CA-
16488, 2-CA-16489, 2-CA-16491, and 2-CA-
17154
March 9, 198 1
DECISION AND ORDER
November 28, 1980, Administrative Law
Judge James F. Morton issued the attached
in this proceeding. Thereafter, Respondents
exceptions and a supporting brief, and the
Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision and a reply
to Respondents' exceptions.
Board has considered the record and the at-
tached Decision in light of the exceptions and
and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Juclge and to adopt his recommended
I Respondents have excepted to certain credibility findings made by
the Law Judge. It is the Board's established policy not to
an administrative law judge's resolutions with respect to
bilit unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
91 NLRB 544 (1950). enfd. 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge. citing 194
118 stated. [by union members] is a
siblt subject for bargaining and it is, itself, subject to further consent of
the parties." The statement is correct insofar as it refers to a request by
an for such ratification but misses the mark in regard to the
sam: request by a union. Absent bad faith, either party in negotiations for
a bargaining agreement can lawfully limit the authority of its negotiators
to negotiation only.
It is not necessary in this case to determine whether there was an
agrtement, actual or implied, between the parties to submit the negotiat-
ed to the Union's membership for ratification. The findings of
the Administrative Law Judge show at least that Respondents understood
that the Union's negotiators and agents had authority only to negotiate an
and not to execute a contract unless the agreement was rati-
fied by the Union's membershtp. is all that is necessary to sustain the
violations found. "Such a restriction on the authority of negotiators is
valid, unless the shows, as it does not here, that the bargaining
was in bad faith." N.L.R.B. v. Britain Machine Company, 210
62 (2d Cir. 1954). "Members of a Union have the right to
the extent of authority delegated to their bargaining unit. It is within
their province to determine whether o r not their bargaining unit may
entt r into a binding contract with or without membership ratification."
Marker of Inc. v . 375 208, 212
(6th Cir. 1967). See also Paul on individual d /b /a Crown Drug
NLRB 865 (1962). As rhe Union's agents did not have the
and did not act with the apparent authority, execute an
absent ratification and as the membershtp did not ratify the
agreement, no final and binding collective-bargaining agreement
was reached. Compare Union of
No. A F L- C I O /National Elevator Industry. Area No.
NLRB 769 (1970). Accordingly, Respondents were, and are, required to
negotiate further with the Union. For these reasons, we agree with the
of the Administrative Law Judge that Respondents the
Act as alleged and shall adopt his recommended Order. In these
starces, the Law Judge's statement that agreements to
NLRB NO. 153
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that Respondents Joe Carroll Or-
chestras & Entertainment Agency, Inc.; Roger
Stanley Orchestra; Universal Orchestras, Inc.
a Meyer Davis Orchestra; and Ben Cutler Orches-
tras, all of New York, New York, their respective
officers, agents, successors, and assigns, each shall
take the action set forth in the said recommended
Order and that Respondent Tony Cabot Asso-
ciates, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached Appendix B is substituted for that
of the Administrative Law Judge.
submit contracts to ratification would be better if is an unneces-
sary, gratuitous comment which we do not endorse or adopt.
APPENDIX B
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment by
refusing to sign the agreement we reached
with Associated Musicians of Greater New
York, Local 802, American Federation of Mu-
sicians, AFL-CIO, and which was ratified by
its members in December 1978, covering a
bargaining unit of all full-time and regular
part-time sidemen employed by us in the single
engagement club date field within the territori-
al jurisdiction of Local 802.
WE NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request, sign and give effect
to the agreed-upon written contract described
above, embodying the terms of the agreement
reached with the above-named Union.
It(a)(l)
AFL-
802),
emp'loyees. I n
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wa:;
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full
1159 JOE CARROLL ORCHESTRAS
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: The
complaints that were issued on behalf of the General
Counsel in Cases 2-CA-16487, 16488, 16489, and 16491
allege that the respective Respondents therein1 violated
Section and (5) of the National Labor Relations
Act, as amended (herein called the Act), by refusing to
meet with Associated Musicians of Greater New York,
Local 802, American Federation of Musicians,
C I O (herein called Local to negotiate a renewal
contract covering separate units of their respective musi-
cian particular, the General Counsel con-
tends each of these Respondents had reached the
identical agreement in June 1978 with Local 802 cover-
ing wages and other terms and conditions of employment
of their respective musician employees; that that agree-
ment subject to ratification by Local 802's members;
that the employees refused in September 1978 to ratify
the and that thereafter each of these Respon-
dents failed to honor Local 802's request to resume
negotiations. These four Respondents assert that the
reached in June 1978 was not subject to ratifi-
cation and that, as they each signed a copy of that agree-
ment sent them by Local 802, they each have a valid
agreement in effect with Local 802
for the of 1978 to 1981 and thus are not obligated
to resume negotiations with Local 802. The General
Counsel further contends that the wage increases and
other changes those four Respondents made pursuant to
that agreement (as so termed by the General
Counsel) constitute unilateral changes which separately
violate and (5) of the Act.
As to the fifth Respondent, Tony Cabot Associates,
Inc. called Cabot), the complaint against it in
Case as amended at the hearing, alleges
that agreed to be bound by the terms of a contract
which was ratified in December 1978, but that Cabot
has, in of Section and (5) of the Act,
failed refused to honor the repeated requests by
Local that it sign a copy of that agreement. Cabot
asserts that it has no obligation to sign that agreement
until Local 802 complies with the "no favored nations
clause" ir that agreement by making certain that Cabot's
competitcrs, who have signed contracts with the identi-
cal terms, live up to those terms.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after full consider-
ation of briefs filed by counsel for the General coun-
sel and counsel for Respondents Carroll, Stanley,
Davis, Cutler, I make the following:
Joe Carroll Orchestras Entertainment Agency, Inc. (herein Car-
roll); Roger Stanley Orchestra (herein Stanley); Universal Orchestras,
Davis Orchestra Davis); and Ben Cutler Or-
chestras Cutler). The leaders of these orchestras respectively are
Joe Carroll. Stanley. Emery and Ben Cutler.
I. JURISDICTION ORGANIZATION
The pleadings establish and I, thus, find that each Re-
spondent is an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that Local 802 is a labor organization within the meaning
of in Section of the Act.
THE ALLEGED TO
A. Background
Each Respondent is engaged in providing music for
entertainment purposes on the basis of single engagement
performances, commonly known as "one-night stands";
performances which last 4 hours o r less for one
evening. Local 802 has, since prior to 1969, represented
the musicians in each of these orchestras, and the musi-
cians employed by other orchestras in the single engage-
ment field in the New York City area.
In 1969, a number of the leaders of the larger orches-
tras, including those of Respondents herein, participated
actively in the negotiations which led to a 3-year con-
tract. Each Respondent then signed a separate agreement
which contained the same substantive terms. In 1972,
each of the orchestras in the single engagement field in
the New York area retained the same attorney to repre-
sent each of them on an individual basis to negotiate a
renewal contract with Local 802. Another 3-year con-
tract was approved, effective from 1972-75. There was
no provision in that agreement that it was subject to rati-
fication by Local 802's members. Nevertheless, Local
802 conducted a ratification vote and secured ratifica-
tion. Each Respondent signed a separate contract for
that 3-year period, 1972-75.
In 1975, renewal contract negotiations were conducted
principally between Local 802 and representatives of the
largest single engagement orchestra in the New York
area, Steven Scott Musician Enterprises, herein
called Scott. Carroll, attended most of those negotiating
sessions. The final agreement reached in 1975 was spelled
out in a four-page document, which by its terms ex-
tended the contract that expired on March 25, 1975, to
March 25, 1978, with six modifications set out therein.
The first four modifications pertained to matters as to
which the parties were required to bargain collectively;
retroactive payments, hourly rates, and
bitration procedures. The fifth provision stated that arti-
cle VIII of the 1972-75 contract is deleted. (That article
set up a joint union-employer group to study the oper-
ation of a "paymaster plan.") The sixth provision is the
one which is immediately relevant to the issues in this
case. That provision states, "It is agreed that the above is
subject to the ratification of the membership of Local
The agreement to extend the 1972-75 contract to
March 25, 1978, as so modified, was ratified in 1975.
Scott's name is set ou t in correspondence annexed to Respon-
dent's motion to dismiss or in the alternative its motion for summary
judgment.
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1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E l . The 1978 Negotiations Leading to the Agreements stated that, repeatedly, in the course of all of the negotia-
Signed in June tions since 1969, Local 802's representatives used the
The events which give rise to this case occurred
cipa in 1978. On January 5, Local 802's secretary sent
identically worded letters to the leaders of the single en-
gagement orchestras. The letters stated that Local 802
was available to negotiate a new contract to replace the
one then scheduled to expire on March 25, 1978; the let-
ters also noted that a meeting was scheduled for the
leaders "to appear before the (Local 802) Executive
Board on Tuesday, February 7, 1978, at noon." A
of the leaders showed up at that time and place
and received Local 802's contract proposals. Thereafter,
Local 802 met with representatives of the Steven Scott
to discuss the terms of a renewal contract.
leaders of some of the five Respondents attended a
few of those meetings. It appears that through informal
contacts with persons in the Steven Scott organization,
the leaders of all these single engagement orchestras in
the New York City area were kept abreast of all negoti-
ating developments. Respondents did not expressly au-
thorize the Steven Scott organization to negotiate on
behalf. Rather, they all followed the negotiations
bet ween Scott and Local 802 with the expectation that
the ultimate agreement would be satisfactory to each of
Negotiations continued between Local 802 and
the Steven Scott organization through May, and final
agreement was reached in June 1978. The of that
agreement were set out in a six-page document. Those
related that the collective-bargaining agreement
each Respondent had with Local 802 and which
was dated March 16, 1973, as extended to cover the
ending March 25, 1978, was further extended to
including March 25, 1981, except as modified by the
otter terms of that agreement. Those other terms related
to hourly wage increases to increases contributions to
and welfare funds and to the other usual con-
tract matters. There was no express statement in the June
agreement that it was subject to ratification by the
un t employees.
Russ Russo, Local 802's secretary, testified in sup-
port of the General Counsel's contention that all the
single engagement orchestras had in fact agreed that that
contract was subject to ratification. Thus, he authenticat-
ed the documents containing the terms of the 1975
especially paragraph 6 thereof which provided for
ratification. He also authenticated the document
the terms of the agreement reached in June 1978 be-
tween the Steven Scott group and Local 802 which, inter
alio, incorporated the 1972 and 1975 agreements, as part
of the June agreement. Russo also testified in support of
General Counsel's contention that Carroll, Davis,
and Cutler had independently, of the written
clause described above, agreed with Local
802 that the contract reached in June 1978 was subject to
by the employees. In that, regard, Russo
It should be noted that the pleadings establish that there are five sep-
arate collective-bargaining units involved in these consolidated cases.
comprised of the sidemen employed by each Respondent. Further.
between Carroll and Local 802 in early 1978
that bargaining was contemplated for separate units and was not a
unit
term "ratification" as leverage to obtain further conces-
sions. He also testified that on many occasions during
each of the years in which the contracts had been negoti-
ated, Local 802 representatives rejected employer coun-
terproposals by telling the employer representatives pre-
sent that the employees would never ratify them. Russo
testified further that, at other negotiating sessions, Local
802 officials made it clear that Local 802 could not get
an agreement ratified by the employees if it contained a
proposal which Local 802 found unacceptable. Russo
testified too that Local 802 made it clear directly to Car-
roll, Stanley, Davis, and Cutler during the negotiations
in 1978 that the final agreement would be subject to rati-
fication. Russo did not testify respecting the details of
any meeting in 1978 at which any of these four Respon-
dents had been so informed, and no minutes of any of the
bargaining sessions were proffered in evidence. Russo
did state that he recalled that Stanley was present at a
few of the 1978 meetings, that Stanley was then trying to
"push" for some individual contract terms and that Stan-
ley was then told by Local 802 that his proposals
"would never pass ratification." Russo testified that
counsel for the four Respondents,' in the course of some
unspecified "debate," had said "many times" that if "the
package isn't good," Local 802 cannot get ratification.
The leaders of all five Respondent orchestras had
been, or still are, members of Local 802 whose bylaws
provide for a secret-ballot procedure to be used in con-
tract ratification votes. Russo testified that Local 802
routinely conducts ratification votes on all of its con-
tracts, and that such votes were conducted in 1972 and
again in 1975 with respect to the agreements in the single
engagement field.
Carroll, Davis, and Cutler each testified that they had
never agreed that any contract they reached with Local
802 was subject to ratification. Their participation in the
actual contract negotiations in 1978 was very
Cutler said he attended only the session at which
Local 802's initial demands were submitted; Carroll and
Davis appeared at only a few meetings, the last 'one in
March 1978. It is evident that they all nonetheless knew,
from informal contacts they had in the business, how the
negotiations were proceeding. Carroll, for example testi-
fied that, from the accounts he had received from one of
the persons in the Steven Scott organization (which con-
ducted the 1978 negotiations with Local he knew
so "precisely" the details of those negotiations and was
so aware of "every line" of the agreement worked out
between Scott and Local 802 that he knew exactly what
would be in the contract he later received from Local
802, which he signed and returned, as related below.
On June 5, 1978, Local 802's secretary, Lou Russ
Russo, mailed identically worded letters to a number of
the single engagement orchestras, including the five Re-
spondents in this case. That letter recited that the con-
tract for the period of March 26, 1978, to March 25,
One of the five Respondents, Cabot, was represented at the hearing
by its leader. Tony Cabot. As noted earlier, the issue in the case involv-
ing Cabot i s not related to ratification.
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1161 JOE CARROLL ORCHESTRAS
1981, had been concluded and that various employers
had already signed copies of the agreement for that term.
T h e letter stated further that two copies of that agree-
ment wert: enclosed with it. Each employer was therein
requested to sign one of those copies and was also told
that if employer was "not in agreement," he should
call Local 802 for an appointment. The copies that Local
802 had sent to Carroll were already signed by Local
802's Carroll signed one of these and returned
it to Local 802; Stanley, Davis, and Cutler similarly
signed returned to Local 802 the copies of the June
agreemenl .
That agreement did not provide for any wage increase
in 1978; i : did call for an increase from $1.50 to $1.75,
effective 1, 1978, in the rate to be paid per musician
to the pension fund provided for in the Local 802 con-
tracts. Stanley, Davis, and Cutler did not, however, in-
crease respective pension contributions on July 1,
but continued to pay at the $1.50 rate through at
least July, August, and September 1978. Indeed, Cutler
did not his contribution to the $1.75 rate until
March of the following year, 1979. Carroll paid at the
$1.50 for the first two of its engagements in July.
For the rext five engagements in July, it contributed at
the $1.75 rate. Then, for the remainder of July, Carroll
resumed paying at the old rate, $1.50. His letter of July
31, 1978, to Brown, the head of Local 802's contract
referred to the fact that Local 802 had re-
turned pension contribution checks to Carroll
and an explanation in writing for this action.
Brown, is quite elderly, did not so respond. Instead,
and as out in paragraph 18 of the answer filed by
Carroll, 802's secretary wrote Carroll on August 9
and Carroll that as the new agreement had not
yet been ratified, Local 802 could not accept Carroll's
pension checks at the $2 rate. T h e $2 rate appears to be
in error as Carroll's checks were drawn at the $1.75 rate.
In any Local 802's letter directed Carroll to pay
the rate until the agreement is ratified. Carroll con-
tinued to pay at the $1.50 rate through August and Sep-
tember
On 18, 1978, the members of Local 802
voted ratification. Local 802 notified the 21 single
orchestras of this vote by letter dated Sep-
tember 21. Local 802 requested the resumption of bar-
gaining early October. The Steven Scott organization
resumed bargaining.
On October 23, 1978 (as revealed in Carroll's letter of
October Brown of Local 802 called Carroll and
asked for, inter alia, contributions owed by Carroll to the
pension fmd. On October 27, Local 802 wrote Carroll to
invite hirn to resume negotiations. On October 30, Car-
roll sent 12 checks to Local 802 in payment of pension
moneys owed. Those checks were drawn at the $1.75
rate, as wrote that the checks were based on the
t of June 5 between him and Local 802's presi-
dent. 802 returned to Carroll what it terms the
"excess" paid by Carroll, the portion of each check
above amount calculated at the $1.50 rate for the
1975-78 On October Carroll acknowledged
receipt Local 802's letter of October 27, in which it
requested resumption of bargaining; Carroll observed
that he viewed the contents of that letter "as irrelevant
to [his] . . . existing collective bargaining agreement run-
ning to March 25,
Negotiations resumed between Local 802 and the
Steven Scott organization and an agreement on a 2-year
agreement, effective December 1, 1978, was reached.
That agreement, referred to hereinafter as the December
agreement, contained the same introductory language,
that the 1973 contract was extended as modified by
the 1975 contract with further modifications as set out
therein. T h e December agreement, however, expressly
provided for ratification.
Local 802 mailed copies of the December agreement
to the 21 single engagement orchestras on November 16,
requesting them to sign the renegotiated agreement, "if
acceptable." In late November, Brown of Local 802
called Carroll to advise him that Local 802 intended to
give a partial "credit" to Carroll for the pension pay-
ments Carroll had been making since July 1, 1978.
Brown asked Carroll to write Local 802, advising it of
his position. Carroll responded by letter dated December
1, in which he rejected the partial "credit" cffered him
by Local 802. Carroll insisted instead that the moneys he
contributed be accepted as full credit. (It appears that,
under the terms of the December agreement negotiated
between Local 802 and the Scott organization, the rate
for pension contributions was increased to $2 as of
cember 1, 1978, and that Local 802 was seeking to obtain
Carroll's consent to put that provision in effect). Car-
roll's letter of December further related that he was re-
iterating the position he had taken before respecting the
agreement he signed in June. His letter referred to his
other letters in October in which he advised Local 802
that the contract he signed on June 5, 1978, is "in full
force and effect and covered the period March 26, 1978,
to March 25, From early December 1978 to June
1979, Local 802 and Carroll, directly o r via counsel, ex-
changed correspondence (a) concerning moneys alleged-
ly owed by Carroll to, inter alia, the Local 802 pension
fund, (b) concerning Local 802's efforts to get Carroll to
adopt the December agreement o r to resume negotia-
tions, and (c) concerning Carroll's view that he has a
valid agreement in effect.
Cutler by letter to Local 802 dated November 30,
1978, stated that he had signed the June agreement in
September and, based on the wage scales set out therein,
he had "concluded arrangements for the services of [his]
orchestra with a considerable number of customers" and
could not renegotiate those arrangements.
The parties stipulated that on December 6, 1978, Local
802 sent telegrams to Respondents Stanley, Davis, and
Cutler advising them that if they did not each conclude
an agreement with Local 802 by December 8, 1978,
there would be a strike. It appears that shortly after-
wards the Regional Office of the Board conducted an in-
vestigation into an unfair labor practice charge filed
against Local 802, relative to the June agreement, and
that some of the single engagement orchestras waited
until sometime in 1979 before signing the December
agreement. Respondents Carroll, Stanley, Davis, and
Cutler have refused to d o so and more significantly, have
l (12 LABOR
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industries Cali/onia.
' & Inc. Presidenr 65.
Sumner the (1976).
in.
1 DECISIONS OF NATIONAL RELATIONS BOARD
refused to honor Local 802's requests to resume negotia-
tions.
It is undisputed that these four Respondents have now
into effect for their respective employees the wage
increase in 1979 as provided for in the June agreement,
anti all other aspects of that agreement.
noted earlier, the General Counsel contends that
fifth Respondent, Cabot, had agreed to sign the De-
cember agreement, but has not done so despite Local
requests that it do so. The evidence shows that on
Ncvember 1978, Local 802 wrote Cabot and request-
ed him to sign and return an enclosed 2-year
of agreement, if it was acceptable to him. On No-
vember 27, Cabot wrote Local 802 to question some as-
pects of the proposed agreement. On November 28,
802 sent Cabot a mailgram demanding a response
(apparently it had not then received Cabot's November
27 letter). Cabot responded to that mailgram and, infer
demanded that Local 802 send him the same con-
tract it "signed and accepted with . . . Carroll . . ."
802 then, in effect, threatened Cabot with a strike
if i : could not conclude a contract with him by Decem-
ber 8. In early December 1978, Local 802 members
the 2-year pact. On December 31, Cabot wrote
802 that he accepted that agreement, provided that
it article 22 of the 1975-78 contract. Local
802 later wrote Cabot that that clause, referred to by the
parties as the "no favored nations clause was
by reference in the agreement. On August 7, 1979,
wrote Local 802 stating that his attorney had
him that no such clause was embodied in the new
contract. Local 802 then sent Cabot another copy of the
contract to sign, and that copy contained an ex-
press restatement of the "no favored nations" clause.
has declined to sign it; it is conceded that he has
complied with the obligations therein. At the
Cabot acknowledged that he did not sign the
agreement as proffered because he is of the view
that there are single engagement orchestra leaders in the
York area who d o not in fact comply with the
Local 802 contracts, and who are able to underbid him.
Cabot stated in effect that he will not sign the 2-year
con: ract until those "illegitimate" leaders become "legiti-
mate."
Of the approximately 2 single engagement orchestras
whom Local 802 negotiated in 1978, all but the 5 in
this case have signed the 2-year agreement scheduled to
on December 1980.
C. Analysis
I . Respondents' motion to dismiss
Counsel for Respondents Carroll, Stanley, Davis, and
filed answers on their behalf, which have pleaded
as affirmative defenses matters which raise primarily
legal, rather than factual, issues.
In one of these defenses, it is asserted that the National
Relations Board lacks the powers of a court of
to rescind the contracts signed by each of these
Respondents on June 5, 1978. That assertion assumes the
very matter in issue, that is, whether o r not the parties
had agreed that that contract would be operative only
on employee ratification. The answer to that question is
purely factual. T h e legal consequences are also obvious.
If there was no contract in effect, the parties must bar-
gain; if the 1978-81 contract was not subject to ratifica-
tion, the complaints are to be dismissed. I shall thus deny
Respondents' motion on that basis.
As another separate defense, these Respondents assert
that the parol evidence rule precludes consideration of
the General Counsel's contention that the written June
agreement was subject to ratification. It is axiomatic that
is admissible where contract language is suscep-
tible of more than one As discussed
below, there is a material issue as to whether the parties,
by use of the language in the June agreement adopting,
infer olio, the 1975 contract, intended thereby to incorpo-
rate the ratification provision contained in the 1975
agreement. evidence, thus, is necessary to resolve
that issue. Moreover, the parol evidence rule was never
intended to bar consideration of a question as to whether
a contract ever had legal Finally, it is now
settled that principles of law governing ordinary con-
tracts are not to be substituted for the principles of a na-
tional labor policy which governs the whole employment
relationship contemplated by a collective-bargaining
agreement.? Accordingly, I reject that defense.
Respondents Carroll, Stanley, Davis, and Cutler urge
as alternate separate defenses, the doctrine of laches and
that the provisions of Section of the Act require
dismissal of the complaints herein against them. Their ar-
gument as to laches is that Local 802 waited several
months after the June agreement was signed to conduct
a ratification vote thereon. The problem I have with that
contention is that it assumes that the parties did not con-
template and consent to a hiatus during the summer, be-
tween the execution of the June agreement and its be-
coming effective upon ratification, a vote on which was,
as noted below, held in September. I shall reject the
laches defense in order to deal with the merits, or the
lack thereof the General Counsel's contention that the
parties had agreed to ratification as a precondition.
These four Respondents have pleaded that Section
of the Act compels dismissal of the complaints
against them. In support of this motion, the answers they
filed point to the fact that the ratification vote took place
more than 6 months prior to the filing of the respective
unfair labor practice charges against them. There is no
allegation that the ratification vote constituted an unfair
labor practice. The contention that Section bars the
processing of the complaints involving these Respon-
dents is not further explicated. Nevertheless, the clear
intent of Respondent's motion relates to the fact that at
least Carroll had indicated to Local 802, at a time
beyond the 6-month period immediately antedating the
3 Jones on Evidence 16, (6th
3 Jones on Evidence (6th also Federated Ameri-
can Insurance Company, Federated American Life Company,
Federated Agencies. and Federated Incorporated, 2 19 NLRB 203
(1975); Printing of Northern 204 NLRB 329 (1973).
John Wiley Sons. v. Livingston. of District Retail,
Wholesale and Department Store Union. AFL-CIO, 376 U.S. 543. (1964):
Home for Aged, 226 NLRB 976 and cases cited therein
at 2.
lat
1n:;ofar
8(12
1,
10(b) run.8
sc 1qb)
processil~g thisg
lO(t1)
brief,1°
ir~
rati:ied
:s first
Junc
member!,
lich
I)y
provisio~ls:
exzept
contained
rati-
--
802
McCrerrdy Inc.. Melco Constructiom Inc., 195 B
(1972), F.2d 1
grievsnces
~~rincipal diffi-
asccmrtain Iqb)
exhaust~:d,
exlvession
l o tiled
mt
a].,
1
functus oflcio
Bronson
infra.
304,
AFL-CIO, (1977),
also
' ' Cali/ornia, supm.
1163 JOE CARROLL ORCHESTRAS
filing of the charges in the first four cases involved
herein, t he would not resume negotiations because he
had already signed a contract which was valid until
1981. as Respondents Stanley, Davis, and Cutler
are concerned, it appears that the first time they notified
Local that they declined to resume negotiations was
on or after December 1978, the earliest possible date
for Sect on to begin to In any event, Board
law is ttled that Section does not bar the further
of cases such as Therefore, Respon-
dents' motion to dismiss on the basis of laches and Sec-
tion is denied.
2. The ratification issue
In her original counsel for the General Coun-
sel sets forth three bases to support the General Coun-
sel's contention that Local 802 and Respondents Carroll,
Stanley, Davis, and Cutler had agreed that the contract
signed June 1978 would not become effective unless it
was by Local 802 members. The General Coun-
sel asser that the contract referred to hereinafter as
the agreement or the June contract "expressly in-
corporated" a provision for ratification by Local 802
as a prerequisite. In that regard, the General
Counsel relies on the first paragraph of the June agree-
ment w provides that the 1973 agreement as ex-
tended the 1975 agreement is further extended to
1981, except as modified thereafter in the June agree-
ment. It is apparent that there is nothing expressly set
out in that paragraph as to ratification. Nevertheless, the
General Counsel notes that that paragraph incorporates
the 1975 agreement, which does contain a provision for
ratification. The 1975 contract itself has three significant
(a) it provided that the 1973 agreements
scheduled to expire in 1975, was further extended to
1978, as modified in the 1975 agreement, (b) it
five such modifications, and (c) it stated at
paragraph 6 that "(it) is agreed that the above is subject
to the ratification of the membership of Local 802." The
General Counsel argues that Respondents Carroll, Stan-
ley, Davis, and Cutler had thus agreed with Local 802 in
June 1978, that that last quoted clause, pertaining to
a The charges were filed on June 1 , 1979. Respondent Cutler's letter of
November 30, 1978, to Local 802 in which he gave such notice to Local
would have reached Local 802 on or after December 1 , 1978.
and Sons, and NLR 28
enfcrcement denied 482 872 (6th Cir. 1973). of course must
follow the Board's view. Had I any option, I would still d o so as i t seems
unrealistic o me to hold that, where there is an active bargaining rela-
tionship, a request by one side to discuss a renewal contract and the re-
jection of i by the other side constitute all the operative facts establish-
ing a viola ion. There are too many other variables which could bring
about bona fide discussions-a strike threat. mediation, employee morale,
economic changes in the industry, concessions by the first party on unre-
lated or other matters, adjustment of personal differences be-
tween the representatives and so on. Moreover, it is often
cult to precisely when the period had begun to run. A
mere reject on, however adamant, is not enough to establish bad-faith in-
transigence. It may be that only after all the traditional bargaining ploys
are that i t does become apparent that the initial rejection was
the first of an unalterable position. It would not be wise to
charge the other party for the time it spent in its efforts to obtain move-
ment.
A supplemental brief was after the hearing was reopened to
hear the Ca case.
fication, obviously applied also to the 1978 modifications.
Counsel for Respondents Carroll, et asserts that the
sixth clause of the 1975 agreement related only to the
preceding paragraphs through 5 therein. He contends
that, when Local 802's membership ratified those five
modifications in 1975, the sixth clause therein "became
(as it) had served its purpose."
The General Counsel relies on the Board's holding in
Methodist Hospital, 223 NLRB 95 (1976). The
facts of that case relate more to the third area of argu-
ment offered by the General Counsel, discussed In-
sofar as they relate to the General Counsel's first conten-
tion, I find them distinguishable as, in that case, the cor-
respondence exchanged between the parties referred ex-
pressly and unequivocally to ratification by both sides
and did not purport to allude to the subject indirectly or
by reference to another document. Construction and Gen-
eral Laborers, No. Laborers International Union of
North America, 228 NLRB 247 cited
in the General Counsel's brief as support for the proposi-
tion that there was a written ratification agreement, is
also factually inapposite as, in that case, the parties had
orally agreed to ratification of the contract whose status
was in dispute. The other cases cited in the General
Counsel's brief respecting this first contention are simi-
larly unpersuasive.
At best, the sixth clause in the 1975 agreement is am-
biguous insofar as it may have been intended to apply to
any succeeding agreement, such as the June agreement.
In the context of the language used in the 1975 agree-
ment itself, it logically would apply to the preceding five
amendments set out therein. I note that, when Local
802 ultimately renegotiated a new agreement in Decem-
ber 1978, it provided expressly therein for ratification. I
presume it was not then merely restating the obvious.
I find that the incorporation in the June agreement of
the 1975 contract and the 1973 contract is not a sufficient
basis by itself to support a finding that Local 802 and
Respondents Carroll, Stanley, Davis, and Cutler had
thereby agreed that that ratification was a prerequisite.
The second point urged in the General Counsel's brief
is that ratification was a prerequisite on the ground that
Local 802's bargaining committee had been limited in its
authority to bargain and that its acts were nullities until
ratified by Local 802's membership. A careful reading of
the cases cited for this proposition discloses that where
the lack of authority to negotiate was specifically com-
municated to the parties and where the parties agreed to
ratification as a condition precedent, a committee's bar-
gaining power is then limited. Thus, this second argu-
ment begs the issue. For whatever significance it may
have, I note that Local 802's bylaws do not expressly
limit the authority of any of its bargaining committees;
the bylaws provide guidelines to be used when ratifica-
tion votes are held. I do not think that the General
Counsel is urging that Local 802 could unilaterally re-
serve to itself veto powers over an agreement otherwise
validly reached as case law is clear that ratification is a
Printing Industries of Northern
1161
per~nissible
parties.12
The
agreement
Stal~ley,
lo
Da\.is,
I S
compels
agreement
arrirred a ~ ~ r o v a l
required.13
ratification."14
prerequisite, em-
p1oy:r
partits
effective.15
contract.18 ern-
ployt:r
under
--
l 2 S.mderlandS Incorporared, 118
I 3 houchens Elizaberhrown, Inc., 155
Scurhland Dodge, Inc., (1973),
althoug,h
I' Consrrucrion Inrernarional
l f North
I s Bion.ron Merhodisr Hospiral,
I SL nderland's Inc..
precedent.17
itself.18
c o n ~ i d e r e d . ' ~
~ e n e r a l
" Foundation Ayehi-
Center, & Lektm
Southland Inc.. Eli-
zaberhrown. Inc.,
a p
olio,
Asbestos & Rubber
harran, Inc., I83
l 8 Marlin J. Company, 1 101 1
erc.. Inc.,
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject for bargaining and it is, itself, subject
to the further consent of the
General Counsel proffers a third basis, alleged
oral agreements of the parties, upon which it is contend-
ed that ratification was a condition precedent for the
June contract to be effective. There is no contention by
the General Counsel that, at any one of the negotiating
sessions or elsewhere, prior to the signing of the June
by each of the following Respondents Carroll,
Davis, and Cutler, any of them had expressly as-
sented to a proposal by Local 802 that ratification by
Local 802 members was required. Indeed, no testimony
as any express agreement was offered and Carroll,
and Cutler all testified that they had never agreed
to ratification as a precondition. What the General Coun-
sel propounding, as I construe it, is the argument that
the totality of the circumstantial evidence in this case
the factual inference that the parties had
reached a meeting of the minds whereby they under-
stood and assented to the ratification vote as a condition
precedent to the effectiveness of the June contract.
The Board has held that a mere statement by a union
representative during bargaining that any final
at would be subiect to .. or ratification
was not an offer which was intended to be accepted but
was a condition the union gratuitously imposed on itself
and hence could not support a finding of a mutual agree-
ment that ratification was In another case,
the Board considered the import of the following state-
ment made by a representative of one side in the bargain-
ing process: "They would take the contract back for rati-
fication and w e would d o the same." It was held that
such a statement, when understood in the full context of
bargaining, meant that "the final hurdle to agreement
was Similarly, where an employer repre-
sentative at the outset of negotiations made it clear that
ratification by the employer's board of trustees, was a
and where the union later wrote that
to obtain confirmation that the agreement would
be submitted to the board of trustees for approval, the
had evidenced an understanding that the trustees
must ratify the agreement before it was to be
In another case, the circumstantial evidence disclosed
that :he parties had agreed that ratification was a precon-
dition of arrival at a binding There, the
had first insisted on the union's representatives
being, authorized to enter into a binding agreement but,
after the union's members refused to give its representa-
tives such power, negotiations resumed and an agree-
ment was reached. It was held that that agreement,
the circumstances, was subject to ratification.
In several other cases, where an employer has con-
tended that it need not sign a contract because it was not
194 NLRB (1971).
Marker of NLRB 729 (1965). See
also 205 NLRB 276 for a similar holding
it was also found that such a holding was unnecessary as there
was in fact ratification and as, in any event, the respondent employer had
no standing to challenge the fact of ratification.
and General Laborers No. 304, Laborers
Union America. AFL-CIO, supra.
223 NLRB at 98.
supra.
ratified as proposed by the union, the Board has held
that the evidence failed to establish that ratification was
a precondition. In those cases, the pivotal holding was
that ratification was not a concern of those employers.
Nevertheless, I have considered the alternative holdings
in those cases that the parties had not assented to ratifi-
cation as a precondition where the evidence indicated
only that statements by union representatives in negotia-
tions that they would take any agreement reached to its
membership for approval was a mere statement of inten-
tion which cannot be distorted into an agreement to
make ratification a condition Last year, the
Board observed that ratification was not a precondition
to the effectiveness of an agreement where no reference
to ratification was made in the written instrument
In that case, the respondent there had drafted
the instrument and later sought to avoid the provisions
therein by refusing to sign it after the union had accept-
ed the proposals. Nevertheless, it is apparent that wheth-
er o r not an instrument contains express ratification lan-
guage is a factor that must be
There are several factors in the instant case giving
strong support for the views of Respondents Carroll,
Stanley, Davis, and Cutler that none of them had an
agreement with Local 802 respecting ratification as a
condition precedent. Thus, there is no evidence, and
only a bare contention at best that they ever expressly
had reached an oral agreement at anytime in 1978. Fur-
ther, the letter sent to them by Local 802 on June 5 with
the agreement they each signed made no reference to
ratification, and the June agreement itself contained an
ambiguous, indirect reference to ratification, unlike the
December agreement.
T h e Counsel asserts that, nonetheless, the rel-
evant factors in this case require a finding that Local 802
had a meeting of the minds with each of those Respon-
dents that ratification was a precondition to be met
before the June agreement was to be operative. In that
regard, the evidence discloses that Carroll was aware of
the precise agreements reached by Local 802 and repre-
sentatives of the Steven Scott organization in their nego-
tiations. The inference is obvious that Respondents Stan-
ley, Davis, and Cutler also kept abreast of those negotia-
tions. There is no question that (a) Local 802's represen-
tatives repeatedly referred to the fact that they had to
get ratification from its members as to the substantive
contract terms; (b) that Local 802 conducted such ratifi-
cation notes in accordance with its bylaws; (c) that Re-
spondents, as members o r former members of Local 802
and as participants in previous negotiations, knew of
In this regard, see Mounr Airy d /b /a Mounr Airy
atric 230 NLRB 668 (1977); C W Bar Co., 209 NLRB
1038 (1974); Dodge supm. See also Houchens Marker of
supra, where a statement by a union representative to
the employer in negotiations that any contract would have to be
proved by the employees was, inter held to be insufficient to estab-
lish that the parties agreed to ratification as a precondition. T o the same
effect generally, see General Division. Raybesros-Man-
NLRB 213 (1970).
Barry 24 NLRB (1979).
See the opinion of the U.S. Court of Appeals in Houchens Marker
supm: cf. also Cheese-Barn, d /b /a Hickory Farms of Ohio. 222
NLRB 418, 419 (1976).
prc~cedures
i.e 17th,
agrecd
con:iidering
manner
lihould
thl:
ratifization
.he
i.e.,
prc:requisite.
speaks
signed
briel'
, I
nle
~ t s .
cir-
c u m s t a n ~ e i . ~ ~
c,lses
agreement!'
requirement.
post
rnade.
agrc r e a ~ h e d . ~ l
evidence
2 0 Carpentem ofAmerica. Union
347. - C I O (Wabash Associatedl.
(1976).
K. Porrer Inc.. Disston Division-Donville X .L .R .B . ,
it.22
&
2(6)
2(5)
1,
purposes
9(b)
9(a)
8(a)(5)
8(a)(5)
re-
2 2 Cimarmn Bergquist Shamn d /b /
i Jet Restaurant; W ~ l l i a m E Brenner I.
Hutchinson d /b /a Inc.. 13
JOE CARROLL ORCHESTRAS 1165
those and practices; (d) that the Steven Scott
organization resumed negotiations with Local 802 when
the ratification vote failed; and (e) that 16 of the 21 em-
ployers in the industry signed the renegotiated agree-
ment, the December agreement, and a Cabot,
had to do so, as discussed below.
In the pros and cons set out above, I con-
clude that the General Counsel has established by a pre-
ponderance of the evidence that Local 802 had reached a
clear understanding with each of these four Respondents
that the June agreement would become effective only
upon rat fication. The factors supporting Respondents'
position pertain more to the in which an under-
standing be manifested and do not negate, o r even
offset, weight of the factors supporting the General
Counsel's contention. Those factors demonstrate clearly
that was a precondition. It is most unlikely, in
my view, that Respondents did not understand what was
clear to individuals doing this de facto negotiations
for them, the Steven Scott group, that ratification
was a It is unlikely too that these four Re-
spondents were ignorant of the practice of ratification.
Their acts demonstrate forcefully that they accepted it
and that they did not disavow it until late in 1978. If
anything clearly to me that the parties agreed to
ratificatioi, it is the simple fact that these Respondents
continued to follow the old contract for months after
they the June agreement. Carroll points out that,
for a period, it did not, as it made pension contribu-
tions for few weeks in July 1978 at the $1.75 rate set
out in the June agreement. What is much more signifi-
cant to is that Carroll reverted to the $1.50 rate
when adv sed by Local 802 that he should do so because
the June agreement had not been ratified and that he
would not have to pay more until it was ratified.
I find t iat Local 802 had implicitly agreed with Re-
spondents Carroll, Stanley, Davis, and Cutler that ratifi-
cation war a precondition of the June agreement as mani-
fested by -heir conduct and the circumstances surround-
ing their It is of course appropriate in considering
the nature of an agreement to take into account such
In concluding this section, I observe that it would ob-
viously be easier for everyone were the Board to recog-
nize, in such as this one, only express, written
providing for ratification, similar to the con-
tract-bar T o apply such a rule, however, to
the instant case on an ex facto basis would result in
the parties being held to an agreement opposite the one
they had The Board has no power to change a
lawful ement already
3. Cabot's refusal to sign
The establishes that Cabot is honoring the
December agreement and that Cabot had committed
himself to sign it. His objection that the agreement did
not contain a "no favored nations clause" was resolved
United Brotherhood of and Joiners Local
No. A F L Valley Contractors 225 NLRB
414. 416
H . Co.. Works v .
397 U.S. 99 (1570).
by Local 802's inserting it directly into the agreement,
rather than have it there only by incorporation. Cabot
nevertheless refuses to sign it because he believes that
Local 802 is not doing a very effective job in policing
the terms of the December agreement with some other
single engagement orchestras, and that Local 802, thus, is
not complying with the "no favored nations clause" in
Cabot's contract. In essence, Cabot's objections go to
matters relating to the enforcement of that contract and
have no bearing respecting Cabot's objection to sign
1 . Joe Carroll Orchestras Entertainment Agency,
Inc.; Roger Stanley Orchestra; Universal Orchestras Inc.
d/b/a Meyer Davis Orchestra; Ben Cutler Orchestras;
and Tony Cabot Associates, Inc., are employers engaged
in commerce within the meaning of Section and (7)
of the Act.
2. Associated Musicians of Greater New York, Local
802, American Federation of Musicians, AFL-CIO, is a
labor organization within the meaning of Section of
the Act.
3. The following employees, each employed by Re-
spondents named above in paragraph constitute a sepa-
rate unit appropriate for the of collective bar-
gaining within the meaning of Section of the Act:
All full time and regular part time sidemen em-
ployed in the single engagement club date field
within the territorial jurisdiction of Local 802, ex-
cluding all other employees, guards, sub-leaders and
all other supervisors as defined in the Act.
4. At all times material herein, the above-named labor
organization has been and is now the exclusive represen-
tative of the employees employed in the unit described
above in paragraph 3 for the purpose of collective bar-
gaining within the meaning of Section of the Act.
5. By having refused since on or about December 1,
1978, to bargain collectively with Local 802 in that they
each refused to honor Local 802's requests to negotiate
the terms of a collective-bargaining agreement to super-
sede the terms of the agreements each signed in 1975,
and by, instead, implementing unilaterally the terms of a
tentative agreement which became inoperative as it was
not ratified and as the parties had agreed to such ratifica-
tion as a condition precedent, Respondents Carroll, Stan-
ley, Davis, and Cutler has each engaged in and is engag-
ing in unfair labor practices within the meaning of Sec-
tion of the Act.
6. By having, since on or about December 6, 1978, re-
fused to bargain collectively with Local 802 by refusing
to execute a collective-bargaining agreement reached
with Local 802, Respondent Cabot has engaged in and is
engaging in unfair labor practices within the meaning of
Section of the Act.
7. By the aforesaid refusals to bargain collectively,
each of the five Respondents has interfered with,
Cf. Motel Corporation: Ron and Ray
a Fancy Dan Inn and and Wilson
Hutch. 2 NLRB 709 (1974).
l If6
str,iined,
and
enlgaged
wi.:hin 8(a)(l)
I!.
re-
!onship sev-
err.1
anti com-
and
mc.aning 8(a)(5) (1)
and neces-
sal
law,
101'~) recom-
mr
.kespondents &
Ai:ency, Or-
ch~:stras, d/b/a
re-
spcctive
sh;~ll:
(a)
Musicians
wi,.h
8(d)
-
2:1 fea-
siblt, appro-
l' Sec.
In S t c .
become ~ t s
shal
collective-
notice,z5
1.
B."z6
P 5
2'
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced and is interfering with, restraining,
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and thereby has
in and is engaging in unfair labor practices
the meaning of Section of the Act.
The activities of each Respondent set forth above,
occurring in connection with its operations also de-
scribed above, have a close, intimate, and substantial
lat to trade, traffic, and commerce among the
States and tend to lead to labor disputes burdening
obstructing commerce and the free flow of
me rce.
.Having found that each Respondent has engaged in
is engaging in unfair labor practices within the
of Section and of the Act, I find it
necessary to order that each cease and desist therefrom
to take certain affirmative action which I find
y to effectuate the policies of the
Upon the foregoing findings of fact, conclusions of
and upon the entire record, and pursuant to Section
of the Act, I hereby issue the following
nded:
Joe Carroll Orchestras Entertainment
Inc.; Roger Stanley Orchestra; Universal
Inc. Meyer Davis Orchestra; and Ben
Cutler Orchestras, all of New York, New York, their
officers, agents, successors, and assigns, each
I . Cease and desist from:
Refusing to bargain collectively with Associated
of Greater New York, Local 802, American
Federation of Musicians, AFL-CIO, by refusing to meet
it to negotiate in good faith a collective-bargaining
agreement, the terms of which will supersede the terms
of the agreement each Respondent had signed with
Local 802 in 1975, and covering the employees in the
following appropriate unit:
All full time and regular part time sidemen em-
ployed by each Respondent in the single engage-
ment club date field within the territorial jurisdic-
tion of Local 802, excluding all other employees,
guards, sub-leaders and all other supervisors as de-
fined in the Act.
(b) Changing the rates of pay, wages, hours, or other
terns or conditions of employment of the aforesaid em-
ployees without having first bargained collectively, as
defined in Section of the Act, with Local 802.
T h e General Counsel requested notice posting. It may be more
to provide for mailing o f the notices to the employees. If so,
prrale modification o f the Order should be made.
In the event no exceptions are filed as provided by 102.46 o f
the Rules and Regulations o f the National Labor Relations Board, the
find ngs, conclusions, and recommended Order herein shall. as provided
102.48 o f the Rules and Regulations. be adopted by the Board and
findings, conclusions, and Order, and all objections thereto
be deemed waived for all purposes.
(c) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request by Local 802, meet and bargain col-
lectively with it respecting the terms of a new
bargaining agreement to supersede the terms of the
agreement signed with Local 802 in 1975.
(b) Post at its principal office copies of the attached
notice marked "Appendix A" with the full name of each
Respondent to be inserted on the copies each so posts; its
name to be inserted thereon as indicated in the brackets
on "Appendix A" annexed. Copies of said on
forms provided by the Regional Director for Region 2,
after being duly signed by a representative of each re-
spective Respondent shall be posted by each Respondent
immediately upon receipt thereof, and shall be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by each Respondent to insure that the said notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
Respondent Tony Cabot Associates Inc., New York,
New York, its officers, agents, successors, and assigns,
shall:
Cease and desist from:
(a) Refusing to honor Local 802's requests to execute
the agreement ratified by Local 802 members in Decem-
ber 1978.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action found neces-
sary to effectuate the policies of the Act:
(a) Upon request by Local 802, sign the written con-
tract embodying the terms of the agreement ratified by
Local 802's members in December 1978.
(b) Post at its principal office copies of the attached
notice marked "Appendix Copies of said notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by a representative of Respon-
dent Cabot, shall be posted by it immediately upon re-
ceipt thereof, and shall be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees customarily
posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by
any other material.
In the event that this Order is enforced by a Judgment of a United
States Court o f Appeals, the words in the notice reading "Posted by
Order o f the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment o f the United States Court o f Appeals Enforcing an
Order o f T h e National Labor Relations Board."
T h e provisions o f fn. 25 also apply to this notice.
POSTED ORDER
VATIONAL
WILL colectively con-
cern.ng
ju-
risdi1:tion
Yorl:,
1167 JOE CARROLL ORCHESTRAS
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order what
steps have been taken to comply herewith.
APPENDIX A
NOTICE TO EMPLOYEES
BY OF THE
ABOR RELATIONS BOARD
An Agency of the United States Government
WE NOT refuse to bargain
rates of pay, wages, hours, and other terms
and conditions of employment of full-time and regu-
lar part-time sidemen in our employ in the single
engagement club date field within the territorial
of Associated Musicians of Greater New
Local 802, American Federation of Musi-
cian!;, AFL-CIO, by refusing to honor the request
of Local 802 to meet with it to negotiate the terms
of a collective-bargaining agreement to replace the
terms of the agreement we signed with Local 802 in
1975.
WE WILL NOT unilaterally change the terms or
conditions of employment of any of these employ-
ees.
WE WILL NOT in any like or related manner in-
terfere with, restrain, o r coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL, upon Local 802's request, meet with it
to bargain collectively respecting the terms of a
new collective-bargaining agreement to replace the
terms of the contract we signed in 1975 with Local
802.
[NAME TO BE INSERTED PER ORDER]