Musicians Union, Afm Local 6

National Labor Relations Board - Board Decisions

Jun 6, 1990

298 N.L.R.B. 740 (N.L.R.B. 1990)

740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Musicians Union , AFM Local 6, affiliated with the
American Federation of Musicians (Hyatt
Regency/Oakland) and National Association of
Orchestra Leaders. Case 32-CC-975
June 6, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 2, 1986, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Gen-
eral Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondent
filed a response to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
1. THE FACTS
The judge found that the Respondent did not
violate Section 8(b)(4)(ii)(A) by picketing Don
Lewis, a self-employed person, with an object of
forcing or requiring Lewis to join the Respondent.
The General Counsel and Charging Party except,
contending that the judge erred in concluding that
the picketing was not directed at Lewis and in con-
cluding that forcing Lewis to join the Respondent
was not an object of the picketing. For the reasons
set forth below, we reverse the judge and find that
the Respondent picketed Lewis with an object of
forcing or requiring him to join the Respondent,
and consequently violated Section 8(b)(4)(ii)(A) of
the Act.
The parties stipulated to the facts. Don Lewis is
a self-employed musician who provided musical
services to the Hyatt Regency in Oakland. He is a
one-man band who sings and plays computer-en-
hanced keyboard instruments and does not employ
or play with any other musicians. Lewis is a
member of the Charging Party, the National Asso-
ciation of Orchestra Leaders, a trade organization
representing, inter alia, self-employed musicians.'
Between December 20 and 31, 1984,2 while Lewis
was performing at the Hyatt, the Respondent pick-
eted with signs bearing the following legend:
1 The parties stipulated that the Charging Party has filed a series of
charges against the Respondent
2 Unless otherwise indicated all dates are in 1984
To The Public
Don Lewis
Non-Union Musician
Is
Unfair to Musicians Union
Local 6
Musicians Union 6, AFM, AFL-CIO
No Dispute With Any Other
Employer or Person
The parties stipulated that there is no evidence
that any representative of the Respondent contact-
ed Lewis to have him join the Union, and that,
other than the picket signs, there is no independent
evidence of an intent to have Lewis join the
Union.3
Before the picketing the Respondent's attorney
wrote to the Hyatt's attorney, on December 18,
stating, among other things, that the Respondent
intended "to ask the public in the form of informa-
tional picketing not to `patronize' the music of non-
union musicians or of musicians who are paid
below our prevailing standard." In the letter, the
Respondent's attorney acknowledged, however,
that the "picketing will, of course, be directed at
the Employer performing at the hotel." Although
the letter stressed that the Respondent was not
seeking recognition from the Hyatt and noted also
that the Respondent had "no basis . . . at this
time" for asking Krouscup (who had booked Lewis
to perform at the Hyatt) to "recognize" the Re-
spondent, the letter did not similarly disclaim any
interest in having Lewis "recognize," or join, the
Union. The Respondent's attorney specifically
asked the Hyatt's attorney for "any assistance you
[Hyatt] could provide to remedy the problems
.. . ." The attorney's letter also stated that the
Respondent might distribute handbills requesting
the public not to patronize the Hyatt, although
there is no evidence that such handbilling ever oc-
curred. A copy of the projected handbill with an
explicit "do not patronize" request was enclosed.
Also on December 18, the Respondent wrote to
Krouscup's attorney that the music being per-
formed at the Hyatt was being done "on a non-
union basis and/or at rates below the Union's
standard." The letter added that there was no basis
for the Respondent's seeking recognition from
Krouscup "at this point."
3 This stipulation precludes our consideration of any evidence that
might establish the Respondent's intent to have Lewis join the Respond-
ent independently of the picket sign . The stipulation does not forestall,
however, our consideration of evidence, including the letters introduced
by Respondent, discussed below, that would explicate the picket sign's
language.
298 NLRB No. 99
MUSICIANS LOCAL 6 (HYATT REGENCY) 741
II. THE JUDGE'S DECISION
In dismissing the complaint in its entirety, the
judge recognized that an unlawful object could be
found based on picket sign language alone. Reject-
ing the General Counsel's contention that "at least
one of the Union's objects"' was to force Lewis to
join the Union, the judge concluded that informing
the public that a person or employer was nonunion
has never been held by the Board to indicate an
unlawful object. Although recognizing that Section
8(b)(4)(ii)(A) draws no distinction between primary
and secondary picketing, the judge also noted that
Congress intended to permit consumer picketing
unless it is shown to have the unlawful objects and
effects prohibited by Section 8(b)(4) and (7), and
that consumer picketing, as such, does not carry a
presumption of unlawful intent. The judge conclud-
ed that the Respondent's letter and picket sign lan-
guage only established an intent to request the
public not to patronize nonunion music and instead
to patronize union music.
In addressing the General Counsel' s argument
that the Respondent would have no reason to
picket Lewis if he joined the Respondent and that
the condition for ceasing the picketing would logi-
cally be to have Lewis join the Respondent, the
judge reasoned that the General Counsel's theory
would prohibit the Respondent from picketing
Lewis with any picket sign language. Finally,
noting that there was no evidence to establish that
the picketing was directed at Lewis or sought a re-
action from Lewis, the judge found that the picket-
ing cannot be held to be unlawful simply because
one method of causing its cessation would be for
Lewis to join the Respondent. In finding that the
General Counsel's argument was outweighed by
the Respondent's right to publicize its dispute, the
judge concluded that the General Counsel had not
met his burden of establishing that the picketing
had an object proscribed by Section 8(b)(4)(ii)(A)
of the Act.
III. DISCUSSION
This proceeding concerns a seldom-invoked part
of the statute, the prohibition on forcing self-em-
ployed persons to join a labor organization. There
is little direct precedent' to guide us and our hold-
ing is a narrow one, confined to those issues neces-
sary to the resolution of this case. Section
8(b)(4)(ii)(A) makes it an unfair labor practice for a
labor organization
(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 or em-
ployer organization . . . .
Unlike Subsection (B), this subsection does not
contain a proviso regarding primary strikes and
picketing.
The issue here is whether the Union's picketing
had a proscribed object of forcing or requiring
Lewis, a self-employed person within the meaning
of Section 8(b)(4)(A), to join the Union.
On consideration of all the circumstances, in-
cluding both the language on the picket signs
themselves, as well as the substance of the letters
(with their enclosures) sent to Hyatt and Krous-
cup's counsel, we find, contrary to the judge, that
the Respondent's picketing had an object of forcing
Lewis to join the Respondent, in violation of Sec-
tion 8(b)(4)(ii)(A) of the Act. The language of the
signs was plainly not just to inform the public that
music performed by nonunion musicians was being
played at the Hyatt. Don Lewis was specifically
identified on the signs as being "Unfair" to the Re-
spondent. The reason for this unfairness was also
apparent from the face of the signs: Lewis was a
"Non-Union Musician." Thus, the Respondent did
not complain that Lewis was undermining the Re-
spondent's area standards by being paid less than
union scale or otherwise not adhering to area prac-
tices. Respondent has stipulated that it knew that
Lewis was receiving above the union scale. And al-
though the picket signs purported to be directed
"To The Public," the Respondent's counsel ac-
knowledged that the sign was "directed at the Em-
ployer performing at the hotel," i.e., Lewis.4 Cer-
4 The judge stated that Sec. 8(b)(4) as interpreted by NLRB v Team-
sters Local 760 (Tree Fruits), 377 U S. 58 (1964), and NLRB v. Retail
Clerks Local 1001 (Safeco Ins), 447 U S. 607 (1980), "does not prohibit
primary consumer picketing " He was clearly wrong Tree Fruits and
Safeco involved the secondary boycott prohibitions of subpar. (B) of Sec.
8(b)(4). (Sec. 8(b)(4)(B) includes a proviso that preserves the legality of
primary picketing, but by its terms the proviso applies only to subpar.
(B)) In this case, the violation arises under subpar (A), whose prohibi-
tions reach primary activity directed against a self-employed person
where an object of the activity is to force that person to join a union.
Teamsters Local 208 (Brockman), 150 NLRB 1016, 1021-1022 (1965); Bar-
bers (Chicago Hairdressers), 120 NLRB 936, 940 (1958) (Subpar. (A) has
also been held to prohibit coercion against secondary employers for the
purpose of forcing a self-employed primary employer to join a union
Teamsters Local 525 (Helmkamp Construction), 271-NLRB 148, 151-152
(1984), enfd. 773 F.2d 921, (7th Cir 1985) )
The fact that coercion against the self-employed person may take the
form of picketing which has the incidental effect of informing the con-
suming public about the existence of a labor dispute does not immunize
the Union's action nor does it raise constitutional problems, as suggested
by the judge See Teamsters Local 309 v Atlas Auto Rebuild, 339 U.S 470
(1950), in which the Court held that a State could constitutionally enjoin
peaceful picketing by a union against a sole proprietor, for the purpose of
compelling compliance with its demand for a union shop Noting that
Congress had enacted a comparable restriction in Sec 8(b)(4)(A), the
Court reasoned that the ban on picketing was "to safeguard the value
Continued
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tainly the message to Lewis was clear. If Lewis
wanted the picketing ended and still wanted to per-
form at the Hyatt, his only choice was to join the
Respondent.5 In that way he would no longer be-
in the words of the picket sign-a "Non-Union
Musician" and would no longer be subject to the
sign's "Unfair" opprobrium. Thus, an object of the
picketing was to force Lewis to become a member
of the Respondent. Coercion of Lewis to join the
Respondent was a substantial and foreseeable con-
sequence of that picketing.
We are not dissuaded from this conclusion by
the fact that Respondent never directly contacted
Lewis for the purpose of attempting to persuade
him to join the Respondent. Lewis was put on
notice by the picket sign language that he could
either join the Respondent, endure the picketing,
or cease performing at the Hyatt.
The letter sent to the Hyatt's counsel does not
save the Respondent. It merely disclaimed any
intent to seek recognition "from Mr. Krouscup at
this time." (Emphasis added.) Because Krouscup
was just the subcontractor who booked Lewis into
the hotel, and not Lewis' employer, the Respond-
ent's disclaimer was meaningless. In any event, the
reference to "at this time" suggested that a recog-
nitional objective might be in the offing. And al-
though the letter also disclaimed any interest in the
Hyatt's recognizing the Respondent, the Hyatt's
counsel was requested to render "assistance" to
correct "the problems." Significant by its omission
from the letter was the absence of any disclaimer
with respect to the Respondent's picketing forcing
Lewis to join the Respondent. Obviously, the Re-
spondent's "problem"-and the reason for its pick-
eting-was Lewis, and Respondent's counsel no
doubt hoped to have the "assistance" of Hyatt
management in pressuring Lewis. Thus, a reasona-
ble inference under all the circumstances is that an
object of the picketing was to pressure Lewis to
join the Respondent.6
It is well established that it does not matter
whether the Respondent's objective was formulat-
ed by the Respondent as a demand.7 Rather, under
the circumstances, we find that the parties under-
stood what action was expected of Lewis as a pre-
condition to the cessation of picketing and no such
demand was necessary." Nor is it significant that
certain objects of the picketing, such as the promo-
tion of union musicians, may not be proscribed by
Section 8(b)(4)(A).9 In Safeco Title Insurance Co.,1°
the union presented a neutral employer with a
choice between, in effect, pressuring the primary
employer to conform to the union's demands-con-
duct that the union could not lawfully demand of
the neutral employer-or substantially altering its
business. This choice was as obvious and as draco-
nian as that presented to Lewis here. In assessing
the union's object under Section 8(b)(4)(ii)(B), the
Supreme Court there found the union's object was
unlawful based in large part on the well-settled
principle that a union is responsible for the "fore-
seeable consequences" of its actions. II We find
that the Union here must be held to the same
standard of conduct. Accordingly, we conclude
that the Respondent violated Section 8(b)(4)(ii)(A)
of the Act by picketing Don Lewis, a self-em-
ployed person, with an object of forcing or requir-
ing Lewis to join the Respondent.
CONCLUSIONS OF LAW
1. Don Lewis is a person engaged in commerce
and a self-employed person within the meaning of
Section 2(6) and (7) and Section 8(b)(4)(ii)(A) of
the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
which the State placed upon self-employers, leaving all other channels of
communication open to the union " Id at 477 In this regard, the Court
observed that "some of our profoundest thinkers from Jefferson to Bran-
deis have stressed the importance to a democratic society of encouraging
self-employer economic units as a counter-movement to what are deemed
to be the dangers inherent in excessive concentration of economic
power " Id at 475 See also Food Employees Local 490 v Logan Valley
Plaza, 391 U.S 308, 314 (1968), overruled on other grounds Hudgens v.
NLRB, 424 U S 507 (1976), in which the Court indicated that the picket-
ing ban in Atlas Auto was justified because it had "been directed at coerc-
mg a decision by an employer which, although in itself legal, could valid-
ly be required by the State to be left to the employer's free choice " 391
US at 314
5 Musicians Local 802 (Random Travel), 171 NLRB 1106, 1114 (1968).
See also Typographical Union 221 (Central Graphics), 264 NLRB 874,
876-877 (1982), for a discussion of "an object" of picketing under Sec
8(b)(7)(B), where the Board inferred an unlawful object from signs publi-
cizing an employer's nonunion status because it was "apparent that the
union considered that its quarrel with the employer would cease when
the employer again employed union members or entered into a contract
with the union "
s We disagree with the judge's observation that the letters written by
the Respondent's attorney "establish only an intent to conduct lawful
consumer picketing " We think that the letters, when considered together
with the sign's language , convey a proscribed object-to force Lewis to
join the Respondent
7 Longshoremen ILWU Local 8 (General Ore), 126 NLRB 172, 173
(1960)
8 See Musicians, above, in which the Board found such an unlawful
object where the union asserted that the "employer" involved would not
be accepted into membership even if he applied
9 NLRB v. Denver Building Trades Council, 341 U S. 675, 689 (1951)
10 NLRB v Retail Clerks Local 1001 (Safeco), 447 U.S 607 (1980)
ii Id at 614 fn 9. See also Steelworkers Local 14055 (Dow Chemical),
211 NLRB 649, 651 (1974), cited with approval by the Court in Safeco,
above at 614 fn 8, in which the Board drew an inference of illegal sec-
ondary object because "by the nature of the business and of the picketing
it is likely that customers who are persuaded to respect the picket signs
will not trade at all with the neutral party " The same logic holds true in
the instant case involving primary picketing against a self-employed
person prohibited by Sec 8(b)(4)(A)
MUSICIANS LOCAL 6 (HYATT REGENCY)
3. By picketing at the Hyatt Regency Hotel in
Oakland, California, with an object of forcing or
requiring Don Lewis, a self-employed person; to
join the Respondent, the Respondent has engaged
in an unfair labor practice within the meaning of
Section 8(b)(4)(ii)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and 2(7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. We deny the General Counsel's request for a
visitatorial clause as unnecessary, Cherokee Marine
Terminal, 287 NLRB 1080 (1988).
ORDER
The National Labor Relations Board orders that
the Respondent, Musicians Union, AFM Local 6,
affiliated with the American Federation of Musi-
cians, San Francisco, California, its officers, agents,
and representatives, shall
1. Cease and desist from threatening, coercing,
or restraining Don' Lewis, with an object of forcing
or requiring Don Lewis to join the Respondent.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post in the Respondent's business offices and
meeting halls copies of the attached notice marked
"Appendix."12 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32 after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure ' that the notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director signed copies
of the notices for posting by Hyatt Regency/-
Oakland, if willing, at its Oakland, California place
of business where notices to employees are custom-
arily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
743
MEMBER CRACARFT, dissenting.
For the reasons set forth by the judge,1 I agree
with his finding that the Respondent Union did not
violate Section 8(b)(4)(ii)(A) of the Act by picket-
ing Don Lewis, a self-employed musician who is
not a member of the Union, with signs informing
the public that Lewis was a nonunion musician.
Contrary to my colleagues, I find that the General
Counsel has failed to satisfy his burden of proving
that the Union's picketing had the unlawful object
of forcing Lewis to join the Union.
Before the picketing, the Respondent informed
the respective attorneys for the hotel at which
Lewis performed and the bandleader who had con-
tracted for Lewis' services that it intended to
inform the public that "non-union" music was
being performed at the Hyatt Hotel. Specifically, in
its December 18, 1984 letter to Hyatt's attorney,
the Respondent expressly disavowed any recogni-
tional objective, and instead stated that "we intend
to ask the public in the form of informational pick-
eting not to `patronize' the music of non-union mu-
sicians or of musicians who are paid below our pre-
vailing standard ."2 Similarly, the Respondent's
letter of the same date to the bandleader's attorney
disclaimed any basis for seeking recognition and
advised that the Respondent would notify the
public that music was being performed at the Hyatt
on a nonunion basis. All the' Union's subsequent
conduct was consistent with this stated intent to
engage in consumer picketing.
The General Counsel concedes that there is no
independent evidence of a recognitional object
other than the picket signs themselves, and at the
hearing the only proof offered by the General
Counsel of the Respondent's allegedly unlawful
object was the language contained on the picket
signs. The picket signs were addressed to the
1 I do not, however, rely on the judge's discussion of the Supreme
Court's decisions in NLRB v Teamsters Local 760 (Tree Fruits),' 377 U S
58 (1964), and NLRB v. Retail Clerks Local 1001 (Safeco), 447 U S 607
(1980). Neither of those cases involved Sec . 8(b)(4)(A), but rather in-
volved the prohibitions on secondary activity set forth in Sec. 8(b)(4)(B)
(Tree Fruits holds that secondary picketing is not prohibited so long as it
asks only that consumers not purchase struck products from a secondary
employer In Safeco, however, the Court held that consumer picketing
could be unlawful if the struck product represented a substantial part, of
the secondary employer's business) Thus, those decisions ' teachings
about the legality of secondary picketing are inapplicable to an analysis
under Sec 8(b)(4)(A), which does not distinguish between primary and
secondary picketing, and in fact proscribes primary picketing if it has an
unlawful object.
2 In the context of the entire letter, I do not interpret the statement in
the letter that the picketing would be "directed at the employer perform-
ing at the hotel" as evidencing an intent to coerce Lewis into joining the
Union Instead, I view this statement as merely an assurance to the Hyatt
that the hotel would not be a subject of the Respondent 's message to the
public Further, my colleagues take an unsupportable leap of logic in in-
ferring a recognitional object as to Lewis from the Respondent's state-
ment in the letter that it had no basis for seeking recognition from the
hotel or bandleader "at this time "
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
public and the Union never contacted Lewis nor
otherwise attempted to have him join the Union. In
these circumstances , I am unwilling to infer an un-
lawful object solely from the use of the words
"non-union musician" on the picket signs. I agree
with the judge that following the General Coun-
sel's argument to its logical conclusion, the Union
could not picket Lewis with any picket sign lan-
guage , even though it has the right to inform the
public of Lewis' nonunion status. That the Re-
spondent's picketing may have had the potential
effect of having Lewis join the Union does not es-
tablish that the picketing had the unlawful object
of coercing him to do so. Accordingly, I would
adopt the judge's dismissal of the complaint.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten, coerce, or restrain Don
Lewis, or any other person engaged in commerce
or in an industry affecting commerce, with an
object of forcing or requiring Don Lewis to join
Musicians Union, AFM Local 6, affiliated with the
American Federation of Musicians.
MUSICIANS UNION, AFM LOCAL 6,
AFFILIATED WITH THE AMERICAN
FEDERATION OF MUSICIANS
Raoul Thorbourne, Esq., for the General Counsel.
Sanford N. Nathan, Esq. (Neyhart, Anderson, Nussbaum,
Reilly & Freitas), of San Francisco, California, and
David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Re-
spondent.
Robert J. Janowitz, Esq. (Elliott & Kaiser), of Kansas City,
Missouri, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at Oakland, California, on July 22, 1985.
Based on an unfair labor practice charge filed on January
23, 1985, by National Association of Orchestra Leaders
(the Charging Party), the Regional Director for Region
32 of the National Labor Relations Board issued a com-
plaint and notice of hearing on May 8, 1985, against Mu-
sicians Union, AFM Local 6, affiliated with the Amen-
can Federation of Musicians, AFL-CIO (Respondent).
The complaint alleges in substance that Respondent vio-
lated Section 8(b)(4)(ii)(A) of the National Labor Rela-
tions Act by picketing Don Lewis, a self-employed
person with an object of forcing or requiring Lewis to
join Respondent.
On October 9, 1985, I issued a decision finding that the
General Counsel had failed to establish that the oper-
ations of Don Lewis met the Board's standards for as-
serting jurisdiction over the instant dispute and recom-
mending that the complaint be dismissed in its entirety.I
Thereafter on January 10, 1986, the Board granted the
parties' joint motion to reopen the record for the purpose
of accepting a stipulation of facts establishing that the
operations of Don Lewis meet the Board's discretionary
and statutory standards for asserting jurisdiction. After
granting the joint motion, the Board remanded the case
to me for the purpose of issuing a supplemental decision
on the merits of the case.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses , to argue orally, and to file briefs. Based on
the entire record and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Don Lewis is a self-employed person engaged in pro-
viding musicial services to business customers including
the Hyatt Regency/Oakland (the Hyatt) which operates
a hotel in Oakland , California . The parties stipulated and
agreed that Lewis had in excess of $50,000 combined
direct and indirect outflow in calendar year 1984 and that
Lewis, therefore , meets the Board 's discretionary and
statutory standards for asserting jurisdiction in this case.
See Marty Levitt, 171 NLRB 739, 741 ( 1968). According-
ly, I find that Lewis has been a person engaged in com-
merce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, the answer admits, and I find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As mentioned earlier, Don Lewis is a self-employed
person who has been engaged in providing musical serv-
ices to the Hyatt at its hotel in Oakland. Lewis is a one-
man band who sings and plays computer-enhanced key-
board instruments . Lewis does not employ any musicians
to play for or with him nor does Lewis play with any
musicians employed by anyone else. Lewis is a member
of the National Association of Orchestra Leaders
(NAOL), the Charging Party which is a trade organiza-
tion representing orchestra leaders, band leaders, and
self-employed persons. The parties stipulated that the
NAOL has filed a series of charges against Respondent.
It is undisputed that while Lewis was performing at
the Hyatt, Respondent picketed between the dates of De-
I Having found that jurisdiction was not established, I did not reach
the substantive issues raised by the pleadings
MUSICIANS LOCAL 6 (HYATT REGENCY) 745
cember 20 and 31 , 1984, with a picket sign bearing the
following legend:
To The Public
Don Lewis
Non-Union Musician
Is
Unfair to Musicians Union
Local 6
Musicians Union 6, AFM, AFL-CIO
No Dispute With Any Other
Employer or Person
The parties further stipulated that there was no evi-
dence that any representative of Respondent ever con-
tacted Lewis for the purpose of attempting to have him
join the Union, and that other than the picket sign, there
is no evidence of an intent by Respondent to have Lewis
join the Union. Respondent admitted that it was aware
of the fact that Lewis earned in excess of union scale
while performing at the Hyatt.
On December 18, Respondent's attorney wrote the at-
torney for the Hyatt stating, inter alia, "we intend to ask
the public in the form of informational picketing not to
`patronize' the music of non-union musicians or of musi-
cians who are paid below our prevailing standard." The
attorney's letter further indicated that Respondent might
distribute handbills requesting the public not to patronize
the Hyatt. There is no evidence that such handbilling
ever occurred. Also on December 18, Respondent's attor-
ney wrote to the attorney for Jack Krouscup, the band-
leader, who had contracted for Lewis to perform at the
Hyatt, stating the Union's intention to inform the public
that music was being performed at the Hyatt on "a non-
union basis and/or at rates below the Union's standard."
After the charges were filed in this case, Respondent's
attorney wrote to the Regional Director's representative
to explain the Union's purpose in picketing Don Lewis.
According to this letter, the Union's purpose was to
inform the public that nonunion music was being per-
formed with the hope that the public might not patronize
this music but would rather patronize union music. Re-
spondent claimed that it did not utilize "do not patron-
ize" language in its sign because it did not want its con-
duct to be interpreted as a secondary boycott of the
Hyatt. With regard to the pending unfair labor practice
charge, the Union denied any attempt to force or require
Lewis to join the Union.
Anaylsis and Conclusions
Section 8(b)(4)(ii)(A) makes it an unfair labor practice
for a labor organization:
. . . (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-em-
ployed person to join any labor or employer organi-
zation. . . .
The parties agreed that Lewis is "a person engaged in
commerce" and a "self-employed person" within the
meaning of Section 8(b)(4)(A). The issue here is whether
the Union's picketing had the proscribed object of forc-
ing or requiring Lewis to join the Union.
The General Counsel concedes that it has no evidence,
other than the picket line language, to establish the al-
leged unlawful object. General Counsel argues that the
language of the picket sign, "which informed the public
that Lewis was non-union and unfair" establishes that "at
least one of the Union's objects" was to force Lewis to
join the Union.
Certainly the proscribed object could be found by
picket language alone. See, e.g., San Diego Typographical
Union Local 221 (Central Typesetting), 264 NLRB 874,
877 (1982), and cases cited therein (dealing with lan-
guage revealing a recognitional or organizational object).
However, informing the public that a person or employ-
er was nonunion has never been held by the Board to in-
dicate an unlawful object.
The prohibition of picketing to force or require a self-
employed person to join a labor organization was a
rarely used provision of the Taft-Hartley Amendments of
1947. In the only significant case arising under this provi-
sion, between 1947 and 1959, in Teamsters Local 691 (La-
keview Creamery Co.), 107 NLRB 601 (1953), the Board
held that the 8(b)(4)(A) unlawful object of forcing or re-
quiring a self-employed person to join a labor organiza-
tion "draws no line of distinction between primary and
secondary picketing."
The Legislative History of the Labor- Management Re-
porting and Disclosure Act of 1959, Public Law 86-257
(the Landrum-Griffin Act)2 reveals that Congress intend-
ed to close the loop holes in the prohibition of secondary
boycotts. However, Congress also intended that "mem-
bers could not be denied the traditional right to ask the
public not to patronize one who sells nonunion goods or
goods of a manufacturer in a labor dispute."3 With
regard to consumer boycotts at secondary locations,
Congress would not permit secondary picketing, but
would allow "the right to appeal to consumers by meth-
ods other than picketing asking them to refrain from
buying goods made by non-union labor and to refrain
from trading with a retailer who sells such goods."4
With respect to organizational picketing, Congress indi-
cated that "nothing should be done to stop picketing, in
the absence of a contract or an election, which has only
the effect of notifying the public of nonunion conditions
and asking the employees to join the union."5 Thus, it is
clear Congress intended to permit consumer picketing
unless it was shown to have the unlawful objects and ef-
fects prohibited by Sections 8(b)(4) and 8(b)(7).
In NLRB v. Fruit Packers (Tree Fruits), 377 U.S. 58
(1964), the United States Supreme Court held that Sec-
tion 8(b)(4)(B) does not prohibit all peaceful picketing at
secondary sites. The evil Congress intended to prohibit
was the use of secondary picketing "to persuade the cus-
2 Hereinafter cited as I Leg Hist and II Leg Hist
3 II Leg. Hist_ at 1377
4 II Leg Hist at 1431
5 11 Leg. Hist. at 1384
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tomers of the secondary employer to cease trading with
him in order to force him to cease dealing with, or to
put pressure upon, the primary employer." 377 U.S. at
63. In NLRB v. Retail Clerk Local 1001 (Safeco Ins.), 447
U.S. 607 (1980), the Court held that when the secondary
employer's business depends on the products of a par-
ticular primary employer, secondary product picketing
can produce injury almost identical to the harm resulting
from an illegal secondary boycott. The Court held that
product picketing of a secondary employer that derived
over 90 percent of its gross income from the primary
employer was in violation of Section 8(b)(4)(B). It is
clear from both the Tree Fruits and Safeco cases that Sec-
tion 8(b)(4) does not prohibit primary consumer picket-
ing. Nor does consumer picketing carry any presumption
of unlawful intent.
Thus, to establish a violation in this case, the General
Counsel must establish that an object of Respondent's
picketing was to force or require Lewis to join the
Union. The letters written by the Union's attorney estab-
lish only an intent to conduct lawful consumer picketing
and an intent not to illegally enmesh the Hyatt in the dis-
pute. See Amalgamated Packinghouse Workers (Packer-
land Packing Co.), 218 NLRB 853 (1975). When asked the
purpose of the picketing, the attorney replied that it was
done in the hope that the public would not patronize
nonunion music but rather would patronize union musi-
cians. The picket sign language is consistent with this
lawful object. The sign addresses itself to the public and
indicates that the Union has no dispute with any other
person, thereby reducing the risk of a boycott of the
Hyatt or other persons doing business at the Hyatt. Com-
pare Packerland Packing, supra, with Meat Cutters Local
249 (Service Food Stores), 230 NLRB 189 (1977).
Following General Counsel's argument to its logical
conclusion, the Union could not picket Lewis with any
picket sign language. As the Union would not have any
reason to picket Lewis if he joined the Union, no matter
what language the sign contained, the Union would logi-
cally cease picketing if Lewis joined the Union. Picket-
ing cannot be held unlawful simply because one method
of causing its cessation would be to sign a union contract
or join the Union. Almost all union picketing would be
unlawful under that standard. Congress never intended
to prohibit all picketing nor could it constitutionally do
so. More specifically, with respect to this case, Congress
never intended to prohibit all picketing of self-employed
persons but rather only to prohibit picketing which has
an object of forcing or requiring those persons to join a
labor organization.
General Counsel' s argument that Lewis could only
"cure" his problems with Respondent by joining the
Union is overcome by the Union's right to publicize its
dispute. General Counsel assumes that the picketing is di-
rected at Lewis and that it seeks a reaction by Lewis.
But there is no evidence to establish those assumptions.
Prior to the picketing the Union indicated that it would
take its message to the public. The picket signs were'ad-
dressed to the public. When later asked the purpose of
the picketing, the Union consistently maintained that it
was appealing to the public. As indicated earlier, the
General Counsel concedes that the Union made no over-
tures to Lewis nor any other attempts to secure his mem-
bership. Thus, the evidence supports the Union' s claim
that it is engaged in advising the public that Lewis per-
forms "non-union" music, conduct which is not pro-
scribed by Section 8(b)(4)(A) or any other section of the
Act. In any event, the General Counsel has not met his
burden of establishing that Respondent's picketing had
an object proscribed by Section 8(b)(4)(A) of the Act.
CONCLUSIONS OF LAW
1. Don Lewis is a person engaged in commerce and a
self-employed person within the meaning of Section 2(6)
and (7) and Section 8(b)(4)(A) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established that Re-
spondent's picketing of Lewis between the dates of De-
cember 20 and 31, 1984, had the proscribed object of
forcing or requiring Lewis to join the Union.
4. No unfair labor practices have been proven.
[Recommended Order for dismissal omitted from pub-
lication.]