American Federation of Musicians

National Labor Relations Board - Board Decisions

Jan 24, 1951

92 N.L.R.B. 1528 (N.L.R.B. 1951)

In-the Matter of AMERICAN FEDERATION OF MUSICIANS, LOCAL No. 24,
OF AKRON OHIO and GAMBLE ENTERPRISES, INC.
Case No. 8-CB43.Decided January 4¢,1951
DECISION AND ORDER
On May 24, 1950, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent has not engaged in, and is not engaging in, any unfair.
labor practices within the meaning of Section 8 (b) (6) of the Na-
tional Labor Relations Act. Accordingly, he recommended that the
complaint be dismissed, setting forth his reasons in his Intermediate
Report, a copy of which'is attached' hereto. Thereafter, •the General
Counsel, Gamble Enterprises, Inc., the charging party, and the Re-
spondent filed exceptions to the Intermediate Report and briefs in
support of their exceptions. On October 17, 1950, the Board heard
oral argument, at Washington, D. C., in which all parties participated.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, the arguments of counsel
for the parties, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
insofar ag they are consistent with the findings, conclusions, and order
herein contained.
1. We agree with the Trial Examiner that Gamble Enterprises, Inc.,
is engaged in commerce within the meaning of the Act. We further
find that, because Gamble Enterprises, Inc., is a multistate enterprise,
it will effectuate the policies of the Act to assert jurisdiction in this
case involving the Palace Theatre in Akron, Ohio, one of the theatres
operated by Gamble Enterprises, Inc 2
2. We agree with the Trial Examiner that the complaint herein
should be dismissed, but we base our decision upon different grounds
i Respondent filed exceptions to rulings of the Trial Examiner admitting into evidence
over the Respondent 's objections certain testimony and two exhibits . The evidence
objected to relates to an aspect of the case which we do not find necessary to consider
in this decision and which does not affect our order herein. Accordingly , we find it
unnecessary to rule upon the Respondent ' s exceptions numbered 4, 9, 10, 11 , and 12.
2 The Borden Company , Southern Division, 91 NLRB No. 109.
92 NLRB No. 210.
1528
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1529
than did the Trial Examiner. The issue in this case is whether the
activities complained of on the part of the Respondent violates Sec-
tion 8 (b) (6) of the Act. Briefly, the record shows that, during the
times material in this case, the Palace Theatre in Akron, Ohio, was
used primarily for the exhibition of motion pictures with occasional
appearances of traveling bands (generally bands of national repu-
tation) as a supplement to the theatre's motion picture programs.
Prior to July 1947, whenever a traveling band appeared for an en-
gagement at the Palace Theatre, it was the practice of the management
of the theatre to pay the members of a band composed of local musi-
cians, who were members of the Respondent Union, a sum equal to
the minimum union wage for a similar engagement, although the local
band rarely performed and generally did not even appear at the
theatre on the days for which they were paid. Between July 2 and
November 12, 1947, (after enactment of the Taft-Hartley Act) there
were seven appearances of traveling bands on the stage of the Palace
Theatre. No payments were made to local musicians during this
period of time and the Respondent voiced no objections. However,
in October 1947, Logan G. Teagle, secretary and business manager
of the Respondent, requested Ronald W. Gamble, directing manager
of the Palace Theatre, to employ a local orchestra whenever a travel-
ing band performed in the theatre. Teagle asserted that no further
traveling bands would be permitted to appear at the Palace unless
an agreement was reached with the Respondent concerning the em-
ployment of local musicians. Gamble replied that the theatre had no
need for local musicians, that in the past it had not availed itself of
the services of local musicians although it had paid for their services,
and that any performance by a local orchestra in conjunction with
the appearance of a traveling band would interfere with the operation
of the theatre. Gamble further advised Teagle that the Ray Eberle
Band was scheduled to appear at the theatre for an engagement be-
ginning November 20, 1947. He told Teagle that if this band was
allowed to play, the theatre would contract for no further appearances
of traveling bands until an agreement was reached with the Respond-
ent. Teagle replied that this would not be acceptable. The Eberle
Band did not fill its scheduled engagement at the Palace Theatre.3
Thereafter, early in 1949, Ronald W. Gamble sought Teagle's con-
sent to the engagement of traveling bands by the Palace Theatre.
However, Teagle's position, articulated in the 1947 conference, that a
local orchestra must be employed if traveling bands are to appear at
the Palace Theatre, remained unchanged. Later, in May 1949, re'pre-
8 The foregoing antedates the filing of the charges in this case by more than 6 months and
is recited only as background . Florida Telephone Corporation, 88 NLRB 1426 ; Axelsan
Manufacturing Company, 88 NLRB 761.
929979-51-vol. 92-98
1 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives of the Respondent met with representatives of the charging
party with the object of negotiating an agreement. The Respondent
offered various alternative suggestions for the employment of a local
orchestra in connection with the appearance of traveling bands at the
Palace Theatre. It appears from these proposals that the Respondent
was seeking an agreement which would guarantee employment of a
local orchestra in some proportion to the number of engagements of
traveling bands at the Palace Theatre. The charging party was un-
willing to give any such guarantee, but offered to employ a local orches-
tra whenever it presented a show on its stage unaccompanied by a
traveling band. The parties did not reach any agreement at this
meeting.
On July 26, 1949, Gamble Enterprises, Inc., executed a contract for
the appearance at the Palace Theatre on August 18, 1949, of "Roy
Acuff and his Grand Ole Opry," a traveling band. Teagle was advised
of this booking. Teagle also received a telephone call and telegram
from the manager of the Acuff shows inquiring if it would be satis-
factory for the band to fill its engagement at the Palace Theatre. In
each instance, Teagle replied that no agreement had been consummated
between the Respondent and the theatre management 4 The Roy
Acuff show did not fill its engagement at the Palace Theatre.
At a subsequent meeting between the parties, held in December 1949,
a tentative agreement was reached whereunder the theatre would em-
ploy a' local orchestra for one engagement to perform with a traveling
vaudeville act and the theatre would be permitted to engage a traveling
band within 60 days thereafter without being required to employ local
musicians for the second engagement. However, this proposed agree-
ment was rejected by the home office of Gamble Enterprises, Inc., and
accordingly was never consummated.5
The Trial Examiner found, as we do also, that after enactment of the
Taft-Hartley Act the Respondent was primarily interested in securing
,employment of its members by the theatre management. However,
in spite of his further finding that all of the Respondent's proposals
for the employment of its members appeared to contemplate actual
performances on their part, the Trial Examiner, nevertheless, con-
* The significance . of Teagle 's responses must be viewed in the light of Section 3 of
article 18 of the Constitution and By-laws of the American Federation of Musicians, which
provides: _
Traveling members appearing in acts with vaudeville units or presentation shows are
not permitted to play for any other acts on the bill without the consent of the Local ;
and section 4, which provides :
Traveling members cannot , without the consent of a Local , play any presentation
performances in its jurisdiction unless a local house orchestra is also employed.
The above recital of facts is not intended to summarize all- the evidence adduced at
the hearing , but only that part of the evidence which relates to the single aspect of the
case upon which we base our decision herein.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1531
eluded that there was implicit in the Respondent's proposals the
requirement that, whether acceptable to management or not, the
theatre should employ and pay a local orchestra for at least half
as many engagements as it contracted for with traveling bands even
though the local orchestra might not actually give any performances.
We find no evidence in the record to support this conclusion, nor does
the Trial Examiner in his Intermediate Report refer to any testimony
from which such conclusion may properly be drawn. The Trial Ex-
aminer, in support of his conclusion that the Respondent's real objec-
tive, although camouflaged in its expression, was to cause employ-
ment of and payments to a local orchestra by the theatre management
whether or not it gave any performances,. relies merely upon the per-
sistence with which the Respondent insisted that the theatre manage-
ment bargain on the employment of a local orchestra in connection
with appearances of traveling bands on the stage of the Palace Theatre.
However, we cannot agree that such persistence on the part of the
Respondent supports the conclusion drawn by the Trial Examiner.
Although, before enactment of the Taft-Hartley Act, the Respond-
ent may have promoted a policy whereunder a local orchestra was paid
whenever a traveling band appeared on the stage of the Palace Theatre
whether or not the local musicians gave any actual performances, the
record shows no affirmation of such policy after passage of the Taft-
Hartley Act. On the contrary, the instant record shows that in seek-
ing employment of a local orchestra, the Respondent insisted that such
orchestra be permitted to play at times which would not conflict with
the traveling bands' renditions. Thus, the record herein does not
justify a finding that, during the period embraced by the charges
herein, the Respondent was pursuing its old policy and was attempt-
ing to cause the charging party to make payments to local musicians
for services which were not to be performed.
It may well be that the Respondent modified its earlier policy in
order to avoid violating Section 8 (b) (6) of the Act. However,
that is a result which Congress intended to effect. The object of
Section 8 (b) (6), as well as other sections of the Act, was to cause
labor organizations to abandon practices which although lawful be-
fore the 1947 amendment of the Act thereafter became unlawful, but
was not intended to prevent labor organizations from substituting
other lawful objectives in the place of those which the Act required
them to abandon. Under both the Wagner Act and the Taft-Hartley
Act it was and is perfectly lawful for a labor organization to seek
employment for its members." Section 8 (b) (6) was not intended
6 Unless , of course , the conduct involved; as it does not in this case, falls within the
proscriptions of Section 8 (b) (4) (D ) of the amended Act.
1532 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
to outlaw such activity on the part of labor organizations. Section
8 (b) (6) was framed solely to restrict exactions by labor organiza-
tions for "services not performed or not to be performed." The rec-
ord in this case contains no testimony indicating that the Respondent
was seeking any payments for "services not performed or not to be
performed."
In his Intermediate Report the Trial Examiner suggests that even.
if the Respondent's proposals contemplated actual performances on
the part of the local orchestra, an attempt by the Respondent to cause
an employer to accept services which he does not want, does not need,
and is not willing to accept, would be a violation of Section 8 (b) (6).
We do not subscribe to this proposition. The Trial Examiner derives
his theory from a statement made by Senator Taft during a colloquy
following Senator Taft's presentation of Section 8 (b) (6) of the
Conference Bill to the Senate.. In reply to a remark by Senator
Pepper that the language of Section 8 (b) (6) was so broad that it
did in fact cover payments for rest periods and call-in pay because
these were payments for time when no actual work was done, Senator
Taft said :
I am sorry to disagree with the Senator, but it seems to me that
it is perfectly clear what is intended. It is intended to make it
an unfair labor practice for a man to say, "You must have 10
musicians, and if you insist that there is room for only 6, you
must pay for the other 4 anyway." That is in the nature of an
exaction from the employer for services which he does not want, .
does not need, and is not even willing to accept. [Emphasis
supplied.] 7
The foregoing remark by Senator Taft was made in the context of
a, debate upon whether the proposed legislation covered all instances
where a labor organization was seeking payments to employees for
time when the employees might not be engaged in the performance of
actual work. It does not seem that the remark was intended to be
applied to situations where it is contemplated by `the union that the
employees shall perform work. On the contrary, Senator Taft's ob-
servation suggests quite clearly that Section 8 (b) (6) was intended
to be limited to the case in which the object of the union is to secure
compensation for persons who perform no work and that the Section
does not proscribe activity aimed at securing work. This is. substan-
tiated by the fact that all other references to Section 8 (b) (6) during
the congressional debate on the proposed Taft-Hartley Act speak only
of situations where labor organizations seek payments to employees
7 93 Cong. Rec. 6603.
AMERICAN FEDERATION OF MUSICIANS , LOCAL NO.-24 1533
for doing no work whatsoever . For instance , Senator Taft , during
his explanation of why the conference committee eliminated all but
one of the "featherbedding" provisions contained in the original House
Bill , stated :
However, we did accept one provision which makes it an un-
lawful-labor practice for a union to accept money for people who
do not work . That seemed to be a fairly clear case , easy to de-
termine, and we accepted that additional unfair labor practice
on the part of unions , which was not in the Senate bill. [Em-
phasis supplied.] 8
On another occasion , Senator Taft stated:
The use of the words "in the nature of an exaction " make it
quite clear that what is prohibited is extortion by labor organiza-
tions or their agents in lieu of providing services which an em-
ployer does not want . [ Emphasis supplied.] s
Finally, on the last day of debate in the Senate , just before the vote
to override the President 's veto, Senator Ball declared as to Section
8 (b) (6) :
There is not a word in that ... about " featherbedding". It
says that it is an unfair practice for a union to force an employer to
pay for work which is not performed . . . it [applies] only to
situations , for instance , where the Musicians ' Federation forces an
employer to hire one orchestra and then to pay for another stand-
by orchestra , which does no work at all. [Emphasis supplied.] to
In our opinion, Section 8 ( b) (6) was not intended to reach cases
where a labor organization seeks actual employment for its members,
even in situations where the employer does not want , does not need,
and is not willing to accept such services . Whether it is desirable
that such objective should be made the subject of an unfair labor
practice is a matter for further congressional action, but we believe
that such objective is not proscribed by. the limited provisions of
Section 8 (b) (6) .11
Upon the entire record in the case, we find that the Respondent has
not been guilty of unfair labor practices within the meaning of See-
8 93 Cong . Rec. 6598.
8 93 Cong. Rec . 7001-2.
10 93 Cong. Rec. 7683.
11 As a further reflection upon the limited scope of Section (8) (b) (6) is the fact that
Senate Bill 249, offered by Senate Taft to the 81st Congress as an amendment to the
National Labor Relations Act, omits Section 8 (b) (6) altogether . Senator Taft in his
analysis of his proposed bill said, ."The limited restrictions on featherbedding is eliminated.
Secton 8 ( b) (6)."
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (b) (6) of the Act. Accordingly,-we shall dismiss the com-
plaint herein.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the complaint against the Respondent,
American Federation of Musicians, Local No. 24, of Akron, Ohio, be,
and it hereby is, dismissed.
MEMBER REYNOLDS, dissenting :
I do not agree with the opinion of the majority that the Respond-
ent's conduct here in attempting to cause Gamble Enterprises, Inc.,
to hire a local orchestra was not for an objective proscribed by Sec-
tion 8 (b) (6).
It is clear, in this case, that the Respondent's [compulsive] demands
upon Gamble to hire its members-the local orchestra-were made
with the knowledge that the music such local orchestra sought to pro-
vide for Gamble constituted "services" that Gamble did not need, did
not want, and was not even willing to accept 12 The question thus
presented is whether or not such demands are permitted by Section
8 (b) (6), which makes it an unfair labor practice for a labor organiza-
tion to exact or-to attempt to exact from an employer payment for
"services not performed or not to be performed."
As is apparent, the language of the section, on its face, is not so
unambiguous as to relieve the Board of the duty to exercise its func-
tion of interpretation. Resort to the legislative history of this provi-
sion plainly discloses, on the one hand, that it was not intended to
embrace every union demand for payment to its members during
periods of time when they performed no actual "work" or "services,"
not to outlaw all types of "featherbedding" practices.13 In the Ameri-
can Newspaper Publishers Association case,'' where the Board first
had occasion to pass.upon the scope of Section 8 (b) (6), the Board
recognized the. restrictive applicability of the Section, and held that
12 The record plainly establishes that Gamble Enterprises , Inc., had no available jobs
which a local orchestra could fill , that its sole heed for musicians was for such as were
associated with a "name -band," and that the Respondent was at all times aware of these
facts. As found by the Trial Examiner , the tentative agreement negotiated in December
1949 is not an indication that the complainant was able to make use of the services of
a local orchestra for a separate engagement whenever it engaged a "name-band." In its
proper perspective , such tentative agreement represented a final effort on the part of the
local theatre management to meet, in part, the Respondent's demands short of complete
capitulation.
12 For example , as Senator Taft's statement indicates , demands by unions on behalf of
employees for paid rest periods , vacations , and call -in pay, were specifically exempted from
the reach of this statutory provision because such activities were deemed to be "incident
to the employment itself." See 93 Cong. Rec. 7001-7002.
14 86 NLRB 951.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1535
the demands of a union on behalf of employees who were regularly
performing necessary work tasks assigned by their employer were out-
side the reach of Section 8 (b) (6), even though such demands specifi-
cally required the employer to pay such employees for useless and
nonproductive "work." On the other hand, although the legislative
history does not clearly define all situations to which the statutory
provision in question would be applicable, it significantly singles out
as a type of proscribed exaction the very union practice in issue here.
Thus, Senator Taft, in answering the expressions of opposition to the
enactment of Section 8 (b) (6) as were predicated on fears that the
provision would serve to undermine beneficial incidents to employ-
ment such as vacations, rest periods, etc., stated as follows :
I am sorry to disagree with the Senator, but it seems to me that
it is perfectly clear what is intended. It is intended to make it
an unfair labor practice for a man to say, "You must have 10
musicians, and if you insist that there is room for only 6, you must
pay for the other 4 anyway." That is the nature of an exaction
from the employer for services which he does not want, does not
need, and is not even willing to accept 15
Of course this section does not affect such industrial practices,
as such activities are done at an employer's request and for
valuable consideration incident to the employment itself. The
use of the words "in the nature of an exaction" make it quite clear
that what is prohibited is extortion by labor organizations or their
agents in lieu of providing services which an employer does not
want. [Emphasis supplied.] 16
Notwithstanding such compelling legislative history, the majority
maintains that statements by Senator Taft 17 and by Senator Ball,18
indicate that the proscription of the statute is inapplicable to the situa-
tion present in this case. The statements to which the majority has
reference generally describe the area of the statutory proscription in
terms of acceptance of "money for people who do not work" and of
forcing "an employer to pay for work which is not performed." The
1E Senator Taft at 93 Cong. Rec. 6603.
'° Senator Taft at 93 Cong. Rec. 7001-7002.
17 Senator Taft, at 93 Cong. Rec. 6598, stated : "However, we did accept one provision
which makes it an unlawful-labor practice for a union to accept money for people who
do not work. That seemed to be a fairly clear case, easy to determine, and we accepted
that additional unfair labor practice on the part of unions, which was not in the Senate
bill." [Emphasis supplied.]
18 Senator Ball, at 93 Cong. Rec. 7683, stated : "There is not a word in that . . . about
'feather bedding.' It says that it is an unfair practice for a union to force an employer
to pay for work which is not performed . . . It [applies] only to situations, for instance,
where the Musicians' Federation forces an employer to hire one orchestra and then to
pay for another stand-by orchestra, which does no work at all." [Emphasis supplied.]
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burden of the majority's argument is that because the Respondent
was insisting that the local orchestra be permitted to provide music,
the Respondent was not requiring payments from Gamble, contrary
to the statute, for "people who do not work," or for "work which is
not performed."
Acceptance of this argument requires a subsidiary determination
that, in speaking of "work" performance, the proponents of the Act
were equating union demands upon employers involving the hire of
persons to perform existing work tasks to demands involving the hire
of persons to perform work tasks which do not already exist as part of
the employer's operations and which are neither needed nor wanted.
I am not prepared, however, to join in such determination, for I be-
lieve it cannot be reconciled with the ldgislative history of Section
8 (b) (6) as a whole and, more particularly, with the specific examples
referred to in the- congressional debates as practical guides for deter-
mining the application of the statute. Thus, in framing Section
8 (b) (6), Congress specifically envisaged that the section would
serve as the means of suppressing certain "standby" 19 hiring practices.
I am of the opinion that congressional concern over these practices
did not turn upon the willingness of the "standby" to make his un-
needed services available to the prospective employer because ' no
distinction was made between the "standby" who intended to do no
work and the "standby" who actually sought to perform unneeded
work. The expressed concern of the legislature was, rather, with the
fact that "standby" hiring practices represented a device for securing
payments to. persons who did not already enjoy employee status and
whose "employment," in the circumstances, would yield no corre-
sponding benefit to the employer. There is, moreover, a further
compelling reason why I cannot accept the majority's construction of
Section 8 (b) (6). Under their construction of the section, unions
can avoid liability in all circumstances by the simple expedient of
insisting upon the performance of nonexistent and unwanted work
tasks. In consequence, the statutory provision becomes a nullity for
all practical purposes.
I believe, for the foregoing reasons, that Congress intended the
statute to be applicable, at least under some circumstances, to union .
hiring demands contemplating payments for the performance of work
tasks which do not already exist as part of the employer's work
structure and which the employer neither "needs nor wants." 20
Accordingly, I would hold that the situation presented in this case
may be reached under Section 8 (.b) (6.) . of the Act.
10 See footnote 18, supra.
20 See Senator Taft's statement at 93 Cong . Rec. 6603.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1537
This view compels me to go one step further than the majority and
pass upon the Trial Examiner's finding that the Respondent did not
use coercive economic pressures in aid of its demands. For reasons
appearing below I do not agree with the Trial Examiner and would
find contrawise.
The long course of dealing between the Respondent and Gamble on
the subject of the hiring of a local orchestra 21 were marked, on
Gamble's part, by adamant resistance to the demands; and on the
Respondent's part, by its effective advertisement to Gamble that such
resistance would result in the Respondent's invocation of the powers
granted to it, under the intraunion scheme of regulations governing
all members of the American Federation of Musicians, to prevent the
"name bands" booked by Gamble from fulfilling their contracts. The
Respondent's clearly coercive threats of reprisal in its dealings pre-
ceding the enactment of the amended Act were not withdrawn during
any of the times material here 22 Indeed, the continuing existence
of the threats and their effective use as a source of pressure upon
Gamble were plainly demonstrated by the "Roy Acuff" incident
detailed more fully in the Intermediate Report 23
It is true, as the Trial Examiner finds, that Gamble's contract with
Roy Acuff incorporated by reference the rules and regulations of the
American Federation of Musicians with which the Respondent was
afliated. The sole importance of that fact is that Gamble was thus
made specifically aware that the Respondent still possessed the power
to render at naught the economic benefits of the agreement 24 For,
whatever the legal effect of Gamble's assent to this provision in the
contract may have upon Gamble's relations with Acuff, such pro-
vision does not inure to the benefit of the Respondent, nor excuse the
Respondent from liability for any matters complained of herein, be-
cause the Respondent was not a party to the contract nor a beneficiary
thereof. The aforesaid contract between Gamble and Acuff did not
express Gamble's waiver of its right to refuse to employ a local
21 During all times material herein Gamble Enterprises , Inc., employed no musicians at
the Palace Theatre. The Respondent ' s dealings with Gamble , therefore , were not predi-
cated upon the existence of any status as bargaining representative entitled to affirmative
protection and recognition under the Act. There is a marked difference between the
pressures which a union possessing such status may be entitled to use and those which
a union not the representative of any employees of the employer , such as the Respondent
herein, may use. The Respondent ' s dealings with Gamble can in no sense be regarded
as statutory "collective bargaining."
22 Compare Americana Newspaper Publishers Association, 86 NLRB 951 , 952-954.
"There can be little question on the record that Roy Acuff 's failure to fulfill its per-
formance contract with Gamble was attributable to the Respondent 's refusal to grant its
consent to Acuff's appearance.
24 See footnote 4, supra.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orchestra,25 nor did it grant to the Respondent a license to use coercive
tactics to prevent Gamble from employing the services of a traveling
band without simultaneously employing a local orchestra. In my
opinion, this provision of the contract between Gamble and Acuff,
at most, excuses Acuff from liability to Gamble in the event that the
respondent invokes its power under the union rules to prevent Acuff
from fulfilling its scheduled engagement at the Palace Theatre.
Contrary to the Trial Examiner's view, I find nothing in the Board's
decision in the Conway's Express case 26 which requires a contrary
conclusion. The Conway's Express case involved the legal effect of a
contract between parties to a collective bargaining relationship where-
under the employer had voluntarily agreed to restrict certain of its
legal privileges. The conduct of the contracting union which was
the subject of the complaint therein involved pressure by the union
upon the employer to honor its specific contractual commitments.
The facts of the instant case plainly are not analogous to those in the
Conway's Express case. -
Under all the circumstances, I would find that the Respondent, by
applying coercive pressures upon Gamble in order to obtain the latter's
agreement to employ and pay a local orchestra whenever Gamble
contracted for the services of a traveling band, engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (b) (6) of the Act.
CHAIRMAN HERZOG and MEMBER HOUSTON took no part in the con- .
sideration of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
John H. Garver , Esq., for the General Counsel.
"Herschel Eriger, Esq ., Canton , Ohio, for the Respondent.
Leo M. Rappaport , Esq., Indianapolis , Inc., for Gamble Enterprises, Inc.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Gamble Enterprises , Inc., Akron, Ohio,
herein called . the Employer or the Theatre Management , the General Counsel
of the National Labor Relations Board, ' by the Regional Director of the Eighth
Region ( Cleveland Ohio ), issued his complaint, dated January 3, 1950 , against
American Federation of Musicians , Local No. 24, of Akron , Ohio , herein called
the Respondent or the Union , alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
25 Compare Tide Water Associated Oil Company , 85 NLRB 1096, 1098, where the Board
noted that it will not infer a waiver-by -contract of legal rights otherwise entitled to pro-
tection under the Act in the absence of "clear and unmistakable " language in the contract
expressing such intent.
2e.Henry Rabouin, d/b/a Conway 's Express, 87 NLRB 972.
The General Counsel and his representative at the hearing will be called ' herditi the
General Counsel ; the National Labor Relations Board, the Board.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1539
of Section 8 (b) (6), and Section 2 ( 6) (7) of the National Labor Relations Act,
49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the charge and the complaint , together
with notice of hearing, were duly served upon the parties.
With respect to unfair labor practices , the complaint alleged in substance
that during February 1949, and at all times since, the Respondent has violated
Section 8 (b) (6) of the Act, in that it has :
(1) Insisted , demanded and requested that the Employer pay for a local
orchestra whenever a traveling band or stage show is presented at the
Theatre, notwithstanding the Employer does not need , does not want, and
cannot use such local orchestra ;
(2) Insisted , demanded , and requested that the Employer pay for "stand-
by" musicians at the Theatre ;
(3) Insisted , demanded , and requested an agreement or understanding
that the Employer pay local musicians for services not used or not to be
used at the Theatre ; and
(4) Interfered with, prevented , and induced orchestras , bands, and stage
shows to not perform for the Employer at the Theatre unless and until
provision would be made for payment to local musicians for services not
used or not to be used.
In its duly filed answer the Respondent denied the commission of the alleged
unfair labor pracC'ees.
_ Pursuant to notice a hearing was held at Akron , Ohio, on March 14 , 15, 16, 1950,
before William E . Spencer , the undersigned Trial Examiner duly designated by
the Chief Trial Examiner . All parties were represented by counsel and partici-
pated in the hearings where full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
to each . Ruling was reserved on Respondent 's motion , made at the close of the
General Counsel 's case-in-chief and renewed at the close of the hearing, to dismiss
the complaint because of failure of proof . That motion is disposed of by the
findings made below . There was oral argument before the Trial Examiner at
the close of the hearing , and the Respondent and the Employer have availed
themselves of the opportunity afforded all parties to file briefs with the
undersigned.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following.:
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS OF THE EMPLOYER
The following are stipulated facts :
Gamble Enterprises , Inc., a Washington corporation , with its principal office
in New York City, operates 2 theatres in Ohio , 1 of which is the Palace Theatre
in Akron, and 2 theatres in Pennsylvania . It also holds 50 percent of the stock
of Standard Theatres Corporation , which operates 26 theatres in Wisconsin. It
also holds 50 percent of the stock of Greater Indianapolis Amusement Company,
which operates 4 theatres in Indianapolis , Indiana.
During the year 1948 , the Palace Theatre in Akron ( the situs of the dispute
involved herein) paid film rentals in the amount of $140,570.85, and in 1949 to
May 19 , 1949, it has paid a film rental of $46 ,001.27. All films for the Palace
Theatre are rented through the Cleveland branch -offices of nine 'national distribu-
tors, including among others Columbia Pictures Corp., Paramount Pictures, Inc.,
RKO Radio Pictures , Inc., and Republic Pictures Corp. Each of these distribu-
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors has branches in various cities of the United States. The money paid for
film rental represents approximately 30 percent of the Palace Theatre' s gross
income. .
During the year 1947, the Palace Theatre presented 15 stage shows, consisting
of traveling bands and other talent, for which the sum of $73,024.21 was paid,
and in 1946 the theatre presented 19 stage shows , for which the sum of $89,556.04
was paid.
During the year 1948, the Palace Theatre purchased supplies, such as advertis-
ing materials and equipment, from outside the State of Ohio, in the amout of
$4,478.37, and during 1949. to May 19, 1949, such purchases from outside the
State totalled $958.79. These purchases represent approximately 50 percent
of all purchases for such materials made by the theatre.
Gamble Enterprises, Inc., pays annual film rentals for all of its theatres to
national distributors in an amount in excess of $1,500,000. It acquired the
Palace Theatre in March 1947.
In addition to the foregoing stipulated facts, the credited testimony of Ronald
W. Gamble, manager of the Palace Theatre in Akron, establishes that Gamble
Enterprises, Inc., in addition to the 4 theatres which it owns in Ohio and
Pennsylvania, exclusively directs and operates the 26 Wisconsin theatres of
Standard Theaters Corporation, and jointly with the Fourth Avenue Amusement
Company of Louisville, Kentucky, directs and operates 4 theatres in Indianapolis,
Indiana. Ted R. Gamble, with his office in New York City, is in charge of labor
relations and policy matters relating to the theatres directed and operated by
Gamble Enterprises, Inc.
While the various theatres owned and/or controlled and operated by Gamble
Enterprises, Inc., do not represent as close knit and integrated a chain as is
represented by the Balaban and Katz chain of theatres over which the Board
assumed jurisdiction in Case 8-RC-509, and consequently the Palace Theatre
of Akron, Ohio, is not integrated in • a national system to the degree that
obtained in this earlier case, nevertheless ultimate control over its labor rela=
tions rests in the New York office of Gamble Enterprises, Inc., and the policies
which govern its operation, such as the character of the entertainment which
it is to offer, are determined there. I am therefore unable to regard it as such
a predominantly local enterprise that the Board should, as a matter of policy,
refuse to assert jurisdiction over it.
I find that Gamble Enterprises, Inc., is engaged in commerce within the
meaning of the Act, and I recommend that the Board assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Musicians, Local No. 24 of Akron, Ohio, is a labor
organization affiliated with the American Federation of Musicians.
III. THE UNFAIR LABOR PRACTICES
A. Background2
At all times material herein, the Palace Theatre of Akron, Ohio, was engaged
in the showing of motion pictures , with an occasional appearance on its stage
2 The matters set forth under this title, occurring in a period prior to the enactment
of the Labor Management Act of 1947,' or in a period more than 6 months prior to the
filing of a charge in this case on May 16, 1949, are recited solely as background and no
findings of unfair labor practices are predicated thereon. Tennessee Knitting Mills, Inc.,
88 NLRB 1103 ; Florida Telephone Corporation, 88 NLRB 1429 ; Axelson Mfg . Co.., 88
NLRB 761.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1541
of a traveling or "name" band-i. e., an orchestra or band of national reputation.
For at least several years prior to July 1947, it employed a local orchestra of
nine musicians on all occasions when a name band played an engagement at the
theatre. During this period the local orchestra held regular rehearsals at the
theatre, held itself available to the theatre for such services as might be required
of it, but only on rare occasions did it actually provide music for the theatre.'
It was for the most part what is now commonly known as a "standby orchestra."
By this is meant that whenever a name band played engagements at the theatre,
the members of the local orchestra were paid for the duration of the engage-.
ment although they did not actually provide music for the theatre. The records
of the theatre show that the last engagement for which payment was made to the
local orchestra was on July 2,. 1947. All local musicians thus employed by the
theatre were members of, the Union, and paid into the Union's treasury tax on
all wages received from the theatre.
Though no further payments were made to the local orchestra for engagements
after July 2, 1947, there were seven performances of name bands . on the
stage of the theatre between that date and the week ending November 12,
1947 ° During this period until late October, the Union made no objection to
the appearance and performance of the traveling orchestras, and made no de-
islands on the theatre relative to the employment of local musicians. In Oc-
tober, Logan O. Teagle, secretary and business manager of the Union, called
at the office of Ronald W. Gamble, directing manager of the Palace Theatre and
requested that he employ a "house"- or "pit" orchestra for the theatre at such
times as the theatre employed the services of a name band. At that time the
theatre had scheduled the appearance on its stage on November 20 of the
Ray Eberle hand. Gamble asked Teagle what services the local orchestra could
render the theatre on such occasions, and the latter suggested that it could play
intermissions, overtures, and "chasers."' Gamble testified:
I pointed out to him [Teaglel that the. theatre had had a policy of paying
for stand-by musicians for a good many years, and to my knowledge, and
in such time as we had operated the theatre, even though we had paid for
such services, and that we were entitled to them, that we had never used
them ; that we had no need for them ; that actually they would be an inter-
ference in the operation of our theatre.
Teagle insisted on the employment of the local orchestra and stated to Gamble
that the theatre. would not be permitted to engage any further traveling name
bands unless an agreement was reached on the employment of local musicians.
Gamble referred to the scheduling of the Ray Eberle band on November 20, and
told Teagle that if this band was allowed to play, the theatre would contract for
no further engagements of traveling orchestras until an agreement could be
reached with him. Teagle replied that this would not be acceptable to the Union.
Gamble was later advised by the agency through which he had booked the
Ray Eberle band, that the agency had been advised by the office of James C.
Petrillo, president of the American Federation of Musicians, with which the
s Respondent's brief : "However, it seems clear that in the several years prior to the
Act [Act as amended], they actually played only infrequently."
* In this connection it is noted that the Labor Management Relations Act, 1947, was
enacted on June 23, 1947, effective August 22, 1947.
Gamble's testimony : "At that time, his [Teagle's] suggestion and recommendation
was that we employ an orchestra to be in the pit to play overtures and intermissions.
That is, a small musical prologue before the actual stage show went on, and some music
after the show while the people were tiling in and out of their seats."
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union is affiliated,. that the Eberle show would not be allowed to fill its engage-
ment at the Palace Theatre. The following is a telegram, dated November 18,
1947, and signed by James C. Petrillo, addressed to General Artists Corpora-
tion, New York City :
AS PER TELEPHONE CONVERSATION RAY EBERLY AND HIS OR-
CHESTRA CANNOT APPEAR AT THE PALACE THEATRE IN AKRON
OHIO UNTIL THIS THEATRE HAS REACHED AN AGREEMENT WITH
LOCAL 24 OF THE AMERICAN FEDERATION OF MUSICIANS.
The Ray Eberle show did not fill its scheduled engagement at the Palace
Theatre.'
B. 1949 negotiations, first-period
Following the incident of the Ray Eberle show, there were no further meetings
between Gamble and Teagle until late 1948 or early 1949. Early in 1949, Gamble
met with Teagle on a number of occasions at the latter's office and attempted
to get Teagle's consent to the booking of name bands with accompanying vaude-
ville acts. Teagle's position, articulated in the 1947 conferences, remained un-
changed ; i. e. his consent to the booking of name bands was conditioned on the
employment of the local orchestra. By letter dated February 24, 1949, Teagle
extended to Gamble an invitation to appear before the Respondent's executive
board, presumably for the purpose of affording Gamble an opportunity to state
his position before this board, but Gamble did not appear. By letter dated
April 22, 1949, Leo M. Rappaport, attorney for Gamble Enterprises, Inc., in-
formed Teagle that his law firm had been employed "to institute proceedings
before the National Labor Relations Board, charging unfair labor practices,
in the event the controversy cannot be settled by negotiation," and offered to
meet with Teagle. A meeting of representatives of the parties occurred on
May 8 at Teagle's office.
At the May 8 meeting, the Respondent's representatives made several alter-
nate suggestions for the employment of a local orchestra. One suggestion, previ-
ously advanced, was that the local orchestra be employed to supplement the
name band by playing an overture or "curtain-raiser," during intermissions, and
a "shirt-tail" or "chaser" after the name band had completed its performance.
For such an engagement the name band would perform on the stage while
the local band would play in the orchestra pit. Another suggestion was that
when a name band was employed which provided vaudeville acts not an inte-
gral part of its own ensemble,? the local orchestra be employed to provide the
music for such acts.' A third suggestion was that the local orchestra perform
from the stage, in the same manner as a traveling or name band, with accompany-
ing vaudeville acts which the management would book into the theatre. Still
another proposal was that a local or "pit" orchestra be employed 50 percent of the
6 Findings under this title of negotiations between Gamble and Teagle are based on the
credited testimony of Gamble. Teagle 's recollections of these earlier meetings was so
meagre as to afford no proper basis for findings.
7 The distinction is made between what is commonly called a "unit show," consisting of
a traveling band which carries vaudeville acts as an integral and regular part of its per-
formances , and a traveling band ( usually a dance band ) which engages vaudeville acts tem-
porarily for the purpose of one or more theatre engagements.
" Findings on the May 8 meeting are based on a reconciliation of the testimony of
Teagle, Reginald Light, Gamble, and Rappaport . It is not clear in all instances that the
testimony relied on was restricted to the May 8 meeting, but if all the proposals related
were not made at the May 8 meeting they were , in any event , made during the 1949 period
of negotiations.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1543
times that traveling or name bands were engaged. The position of the theatre
management, in brief, was that the local orchestra had no drawing power, and
that its performance in the pit simultaneously with a name band, not only would
be lacking in entertainment value but would actually constitute an interference
with the performance of the name band. The theatre management did, however,
agree, with certain reservations, to the employment of the local orchestra to
furnish music for vaudeville acts independently booked by the theatre, and at
the conclusion of the meeting the following memorandum was prepared and
initialed by Teagle and Rappaport :
Provided a satisfactory scale of wages is agreed upon between the parties,
the Palace Theatre will employ local musicians whenever it produces a
show on its stage for which it hires talent or acts other than traveling instru-
mental bands or orchestras and when such acts do not constitute a part of
an assembled unit which will include a traveling band or orchestra and such
unit is contracted for by the Palace Theatre as a unit.
The Palace Theatre is unable to give any guarantee of the number of such
employment or to agree that any given percentage of stage attractions will
fall within the classifications of shows for which local music will be em-
ployed, because it is unable to obtain such guarantees from booking offices
selling such talent.
No local musicians will be employed in connection with any stage attraction
composed either of instrumental music alone or of instrumental music with
acts which are bought by the theatre as a complete unit, regardless of
where such unit may be assembled.
It was the testimony of the General Counsel's witnesses, Gamble and Rappa-
port, that this memorandum represented an agreement among the representatives
of the parties and was initialed as such. Respondent's witnesses, Teagle and
Reginald Light, Respondent's president, testified that the memorandum merely
Incorporated management's offer and denied that there was an agreement on its
terms. Admittedly, if there was agreement on the matter set forth in the
memorandum it was merely tentative on the part of Respondent's representa-
tives, and definitive and final agreement was never reached. It is clear from
the testimony of both Teagle and Light, that the despondent was seeking a
contract of definite duration which would contain so a guarantee of the number
or percentage of engagements of the local orchestra, whereas it was the position
of the theatre management that no such guarantee could be given because of
the uncertainties accompanying the booking of vaudeville acts.
By letter dated June 24, Gamble advised the Respondent that the theatre
management would resume its former practice of engaging "traveling bands, and
accompanying acts, forming what is known as a package unit, to appear from
time to time on our stage at the Palace Theatre in Akron, Ohio." Continuing, the
latter stated :
We furthermore hereby notify you that we intend, if possible, to engage
vaudeville acts, unaccompanied by any travelling stage band, for appearance
on our stage at the Palace Theatre, and in that event, to employ local musi-
cians to furnish the music accompanying such vaudeville acts. For that pur-
pose, we are willing to negotiate a contract with you for a reasonable number
of men, at a reasonable scale of pay, and reasonable working conditions,
covering employment of your members for such vaudeville acts. Because
of the impossibility of getting commitments on any fixed number of such
vaudeville shows, we cannot make a commitment for any definite number
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such appearances. In connection with such a contract, if you care to enter
into it, we must have your assurance that you will not insist upon employ-
ment when we have travelling stage bands and accompanying acts. Such
a contract should be made for the usual period of one, two or three years.
We are ready to negotiate immediately, but prolonged delay in such nego..
tiations will not prevent us from engaging travelling stage bands, as stated
in this letter.
The Respondent replied to this communication by letter dated July 1, 1949, in
which it agreed to meet with representatives of the theatre management for the
purpose of "collective bargaining and negotiation of a collective bargaining
agreement. . . ." Other material portions of the letter follow :
Incidental to such negotiations, our position is that the same should
cover all phases of the relationship between your concern and our members
and the union, and to that end we are willing to bargain collectively to
the end that understanding may be reached on all issues. We regret that
you state "in connection with such a contract, if you care to enter into it,
we must have your assurance that you will not insist upon employment when
we have travelling stage bands and accompanying acts" and that you further
state such a contract "should be made for the usual period of one, two or
three years." The matter of frequency of employment of local musicians
and the conditions thereof is properly a subject for collective bargaining, and
your prefacing your willingness to enter into collective bargaining with the
condition that we must relinquish our right to bargain on one of the issues
that may arise between us obviously is in itself an unfair labor practice
within the meaning of the Labor Management Relations Act. Furthermore,
the length of the period of contract likewise is a subject for collective bar-
gaining, and cannot be stipulated unilaterally in advance by either party.
By letter dated July 20, 1949, Gamble reiterated the willingness of the theatre
management to negotiate with the Respondent on a contract, and stated, inter
alia : "Our position is the same as yours in that said negotiations should cover
all phases of the relationship between our concern and your members and the
Union." Teagle replied to this communication by letter dated August 6, 1949,
but in the interim the there management had contracted for the engagement
of a name band.
C. The Roy Acuff incident
On July 26, 1949, the theatre management executed a contract with a Chicago
booking agency for the appearance at its Palace Theatre in Akron on August 18,
1949, for an engagement of 4 days, of "Roy Acuff and His Grand Ole Opry,"
with the following accompanying acts :
Pop And His Jug Band
Rachael And Her Bashful Brother Oswald
Smoky Mountain Boys
Radio Dot & Smoky
Joe Zankins & Lannie
Tommy Magness
Fat Boy Wilson
Uncle Dave Mason
Sam & Kirk McGee
Cackle Sisters
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1545
Gamble informed Teagle of this booking and filed with him a copy of the
contract which he had executed with Acuff 's agent. The booking agent's
signature was not affixed to this copy of the contract, but a completed contract
was received by Teagle directly from the booking agent with letter of trans-
mission dated August 3. Teagle also received a phone call and a telegram from
the manager of 'the Acuff shows, inquiring if it would be satisfactory for the
show to fill its engagement at the Palace Theatre in Akron. In each instance
Teagle replied that no agreement had been consummated between the Respondent
and the theatre management.
A few days after Gamble had advised Teagle of this booking, Acuff's booking
agent called Gamble and advised him that the Acuff show would not fill its
engagement at the Palace Theatre inasmuch as a letter had been received from
Petrillo which had the effect of cancelling the engagement. Petrillo's letter,
addressed to the booking agent and dated August 4, 1949, has the following text:
We have been advised that you contemplate booking Roy Acuff into a
theatre in Akron, Ohio. The local there advises us that no agreement has
been reached between the theatre and our local union.
Under the circumstances, Federation members are not permitted to play
there until negotiations for an agreement are consummated.
The Roy Acuff show did not fill its engagement at the,Palace Theatre.
D. 1949 negotiations , second period
By letter dated August 17, 1949, Gamble requested the Respondent to submit
a "draft of an Agreement concerning possible employment of musicians at the
Palace Theatre ." In his reply to this letter, dated September 14, Teagle stated
that it did not appear "practical" for Respondent to submit a draft of a con-
tract "in view of the adamant position which you heretofore have take on some
issues and your later apparent modification of such positions ." By letter to
Teagle dated October 13 , Gamble reiterated his willingness to negotiate with the
Respondent , and stated , inter ilia:
I do not know just what you mean by saying that I have heretofore taken
"an adamant position," and that I have later modified my position . The only
point on which I have been firm is that our Theatre cannot afford to hire
musicians for which it has no use , and that, therefore , we would not enter
into a contract containing such a requirement . We are perfectly willing
to negotiate with you for a contract for the services of the members of your
Union when we have use for the same , but, of course , any contract entered
into must be upon a basis of scale and working conditions which we can
afford.
Teagle, by letter dated October 24, 1.949, replied : "I have carefully studied the
matters contained in your letter and am rather dismayed that you continue firm
on your position relative to hiring of our local union members." After reiterat-
ing Respondent's willingness "to discuss all matters of mutual interest," the
letter continues : "But, we further state that such discussion must include all
matters between us which are the proper .subject of collective bargaining and
must not be tied down by prior conditions asserted by you."
Subsequent to this exchange of letters, on or about December 1949, Gamble
approached Teagle with reference to contracting for the engagement of a vaude-
ville unit which was then scheduled to appear at a Youngstown, Ohio, theatre. He
proposed to engage the services of the local orchestra to accompany this vaude-
929979-51-vol. 92-99
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
ville unit, provided the Respondent would permit him also to book a traveling
name band without the local orchestra, for a separate engagement. Gamble
testified concerning this proposal that vaudeville units were then available for
local bookings. "We had had no experience with them," he testified, "but we
were perfectly willing to try them. It would fulfill his [Teagle's] demand to
give the local musicians work, something to do, that if they [the Union] would
untie our hands insofar as any guarantees were concerned, that we would be
perfectly willing to try one. He [Teagle] was unwilling to try to untie my
hands as far as any extended period was concerned, but did agree that I could
bring in a show. I pointed out to him that he had already made me a better
offer-than that, that I could bring in a show for a show ; that at least if I started
off with this one, I should be allowed to bring in two, both this one from Youngs-
town and then a traveling name band." Gamble's proposal was agreed upon, it
being understood that both shows would appear within a period of 60 days, but
when Gamble submitted his proposal to his own New York office it was rejected.
There appear to have been no further negotiations of moment between the
Respondent and the theatre management.
D. The issues; conclusions
During the first 2 or 3 decades of this century theatres in this country
could be roughly classified in three groups : Vaudeville houses which offered
independent and separate vaudeville acts, usually accompanied by a local
orchestra ; the "legitimate" theatre where the spoken drama was performed ;
and motion picture houses where local orchestras were frequently employed
to furnish background music for the then silent motion pictures. In time, the
popularity of motion pictures began to crowd vaudeville "off the scene," and
there developed what was then called combination houses, showing partly vaude-
ville acts and partly motion pictures. With the advent of sound or talking
motion pictures, the popularity of vaudeville suffered a further decline, and
inasmuch as sound pictures provided their own musical background it was no
longer profitable, in the case of many theatres, to employ a local orchestra.
Many theatres which had previously operated as vaudeville or combination
houses, now adopted a straight picture policy and, in order to give variety to
their offerings, engaged traveling stage bands of national reputation for limited
engagements. The tenure of employment of local orchestras, precarious from
the advent of motion pictures, became increasingly strained and presently the
personnel of many local theatre orchestras throughout the country were faced
with unemployment.
It was this general situation, with many involvements which it is not prac-
ticable to discuss here, that gave rise to the so-called stand-by orchestra, a
device by which nonperforming musicians were paid for "standing by" while
another group of musicians, who were paid for their actual services, performed.
It is clear that such an arrangement existed at the Palace Theatre in Akron
prior to the summer of 1947, although there had been no written contract of
employment between the local orchestra and that theatre for a period of at
least 15 years. It is equally clear from the legislative history of the Labor
Management Relations Act, 1947, that Congress intended to restrict stand-by
practices when it adopted Section 8 (b) (6) of the amended Act.
The House version of this section (H. R. 3020) was modeled on the Lea Act
(Section 506 of Title V of the Communications Act, as amended) which, in
turn, was designed to outlaw certain stand-by practices in the radio industry.
The original Senate bill (S. 1126) contained no corresponding provision, and
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1547
the bill as it was agreed on in conference and enacted into law, contained a
modified version of the House proposal.' Senator Taft, speaking in the Senate
on the conference agreement, stated :
The provisions in the Lea Act from which the House language was taken
are now awaiting determination by the Supreme Court, partly because of
the problem arising from the term "in excess of the number of employees
reasonably required". Therefore, the conferees were of the opinion that
general legislation on the subject of featherbedding was not warranted at
least until the joint study committee proposed by this bill could give full
consideration to the matter. Since the matter of exacting money for serv-
ices not to be performed borders definitely on extortion, the conferees agreed
to the insertion of a paragraph ( sec. 8 ( b) (6)) which makes it an unfair
labor practice to cause or attempt to cause employers to pay money under
such circumstances. (93 Cong. Rec. 6601.)
In illustrating the scope and application of Section 8 (b) (6), Senator Taft
stated :
It is intended to make it an unfair labor practice for a man to say, "You
must have 10 musicians, and if you insist that there is room for only 6,
you must pay for the other 4 anyway." That is in the nature of an
exaction from the employer for services which he does not want, does not
need, and is not even willing to accept. ,(93 Cong. Rec. 6603.),
Senator Ball, one of the proponents of the bill, speaking on the proposed amend-
ment in opposition to the Presidential vetoes, had this to say :
There is not a word in that, Mr. President, about "feather bedding."
It says that it is an unfair practice for a union to force an employer to
pay for work which is not performed. In the colloquy on this floor between
the Senator from Florida and the Senator from Ohio, before the bill was
passed, it was made abundantly clear that it, did not apply to rest periods,
it did not apply to speedups or safety provisions, or to anything of that
nature ; it applied only to situations, for instance, where the Musicians'
Federation forces an employer to hire one orchestra and then to pay for
another stand-by orchestra, which does not work at all. (93 ,Gong. Rec.
7683.)
Now, there is nothing in the language of this section which renders it illegal
for an employer voluntarily to contract for the engagement of a stand-by
orchestra and payment for services not rendered . It is only when a labor
organization "causes or attempts to cause" an employer to engage , or to agree
to engage ," in such practices that a violation occurs. Furthermore , the Board
9 Section 8 ( b) (6) provides:
It shall be an unfair labor practice for a labor organization or its agents-to cause
or attempt to cause an employer to pay or deliver or agree to pay or deliver any money
or other thing of value, in the nature of an exaction, for services which are not per-
formed or to be performed.
10 It is interesting to note that by the explicit language "or agree to engage", Congress
distinguished between the act of paying or delivering , and the agreement to pay or deliver,
and thereby made the causing or attempt to cause the agreement, and the Act itself
which would normally flow from the agreement, equally violative of the statute. Compare
Section 8 ( b) (2) of the Act , with its "to cause or attempt to cause an employer ro
discriminate," but which omits the equivalent language , "or agree to discriminate." It
would appear therefrom that Congress intended to give a broader application to Section
8 (b). (6) than was intended in Section 8 (b) (2). See, however , The Great Atlantic and
Pacific Tea Co., 81 NLRB 1052.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has construed the language "cause or attempt to cause" as meaning something
more "than an insistent demand in collective bargaining ." The following is
the Board 's rationale for this construction , quoted from its decision in the
International Typographical Union case, 86 NLRB 115:"
The House bill, from which Section 8 (b) (6) was derived , proscribed
only union activities in the form of a "strike or other concerted interference
with an employer's operations." Although the Conference bill substituted
for these words "cause or attempt to cause," it also added the words, "in
the nature of an exaction." The legislative history shows no disposition,
on the part of the Senate at least, to broaden the provisions of the House
bill with respect to the prohibited form of activity. It discloses instead that
what Congress was concerned with were practices in the nature of "extor-
tion." Clearly, a demand made at a bargaining table cannot be deemed
"extortion," especially where that demand is for an item which has tradi-
tionally been regarded as part of the compensation to be paid to the employ-
ees in the unit as a group. To hold otherwise is to say that any demand
in negotiations for an item which an employer or labor union does not want,
but to which it accedes, however reluctantly, in order to reach a settlement
on other issues , is "in the nature of an exaction ." [The discussion is here
continued in a footnote.] The words "cause or attempt to cause" also
clearly imply something more than a bargaining demand. It is noteworthy
that the words, "persuade or attempt to persuade," were used in Section
8 (b) (2) in the Senate bill as originally passed, but were changed in con-
ference to "cause or attempt to cause." In explaining this substitution,
Senator Taft said that the House conferees had objected to the Senate
language "on the ground that it seemed inconsistent with the provisions
guaranteeing all parties freedom of expression."
Turning now to the factual situation of the case at bar, it is necessary to
determine whether or not . the Respondent, in its 1949 negotiations with the
Palace Theatre, attempted to cause the latter "to pay or deliver or agree to
pay or deliver any money or other thing of value in the nature of an exaction,
for services which are not performed or to be performed." This involves two
considerations ; the nature of its proposals and, if it is found that such pro-
posals contemplated payment for services "not performed or to be performed,";
whether or not it attempted to cause the effectuation of these proposals within
the meaning of the Act.
It is noted at the outset that the Respondent was primarily interested in the
employment of its members by the theatre management. Its members were ready
and willing to provide music for the Palace Theatre if management of the theatre
would contract for their services. The Respondent made several proposals
as to the character and scope of the proffered services, and each of these
appeared to contemplate actual performance. At no time did the Respondent
propose, in so many words, that the local orchestra be paid for services not
rendered. It did propose, however, and insist, that whenever a traveling band
played the theatre, the local orchestra should be employed also, or, as an alterna-
tive, that the local orchestra should be employed for a number of engagements
equal to half the number of engagements of the traveling band.
11 The practices complained of in the International Typographical Union case related
to a species of "make-work" programs in connection with total employment in which
actual services were rendered. I do not consider that the decision in that case is
determinative of the issues present here.
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1549
As to the first proposal, I am of the opinion that this was nothing more or
less than a proposal for a stand-by engagement. Such proffer of "services"
was not, in my opinion, a proffer of real services at all, inasmuch as the employ-
ment of the local orchestra in the pit on occasions when a name band was per-
forming from the stage, was undesirable from the viewpoint of the theatre
management, added nothing to the drawing power of its attractions, and, in
fact, as stated by Gamble, constituted a positive interference with the presen-
tation of its stage attraction. It may be assumed that in all comparable situa-
tions, the stand-by orchestra is willing enough to give actual performances ;
musicians, being human, had no doubt rather play than not to play; but the
services offered are not real services because they afford no actual considera-
tion for the payment of "any money or other thing of value." Such a proposal,
if accompanied by an "attempt to cause" its effectuation, " is in the nature of
an exaction from the employer for services which he does not want, does not
need, and is not even willing to accept." (See Senator Taft's statement, supra.)
The alternate proposal that the local orchestra be employed for 50 percent
of the total number of engagements of traveling bands, as well as various
other proposals which have been set forth in detail above, all have the same
vice : They are in the nature of a proffer of services which the theatre manage-
ment did not want, did not need, and was not willing to accept. Also, I believe
there was implicit in all of Respondent's proposals the requirement, that whether
they were acceptable to management or not, in any event the theatre manage-
ment should employ and pay the local orchestra for at least half as many
engagements as it contracted for with traveling bands, even though the local
orchestra did not actually play any performances. True, this was never stated
in so many words, but the persistence with which the Respondent insisted that
the theatre management bargain on the employment of the local orchestra
simultaneously with the appearance of traveling bands, discloses the true intent.
Thus, when in his June 24 letter Gamble stated that in negotiating a contract
with the local orchestra, "we must have your assurance that you will not insist
upon employment when we have traveling stage bands and accompanying acts,"
Teagle replied that Respondent's position was that a contract should "cover all
phases of the relationship between your concern and our members and the union,"
and, further, that the Respondent "regretted" Gamble's position as articulated
in his statement quoted above. Again, when Gamble, in, answer to Teagle's
accusation that the theatre management had taken an adamant position, stated
in his .letter of October 13, "The only point on which I have been firm is that our
Theatre cannot afford to hire musicians for which it has no use, and that,
therefore, we would not enter into a contract containing such a. requirement,"
Teagle replied that he was "rather dismayed that you continue firm on your
position relative to hiring of our local union members."
In the closing negotiations of December 1949, it appeared that the parties
might reach at least a limited agreement on the employment of the local or-
chestra, without stand-by requirements, but this collapsed when the theatre man-
agement refused to confirm Gamble's offer to provide an engagement for the local
orchestra to furnish music for independently procured vaudeville acts. Ob-
viously, such an agreement contemplated the actual performance of services.
From this it may be argued, as it is argued generally by Respondent's counsel,
that all the Respondent sought throughout the negotiations was the employment
of the local orchestra for actual performances within the theatre. If it were
possible to view the final unsuccessful attempt to reach an agreement in isola-
tion from the entire course of negotiations, such a conclusion. might appear to
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be a reasonable one. In proper perspective , however , the tentative offer made
by Gamble in December 1949, is seen as a final effort on the part of the local
theatre management to meet the Union's bargaining requirements short of
capitulating to its demand for stand-by pay. This does not obscure the fact
that there was operative throughout the negotiations the Union's thinly camou-
flaged requirement that whether or not the theatre management wanted, or
intended to use, the services of the local orchestra , it should nevertheless contract
with it for a number of engagements which would constitute at least one-half as
many as the total number of engagements of a traveling band. Stripped to its
essentials , it was as if the Respondent had said to the theatre management, "The
members of our union are offering to play in your theatre, and want to play,
but, in any event, whether you use their services or not, you must pay them
for at least half as many engagements as you give to traveling bands." Such
proposals, in my opinion, contemplated the effectuation of precisely such
stand-by practices as Congress intended to restrict , and, if accompanied by such
force, or threat of force, as to amount to an "attempt to cause," constituted a
violation of Section 8 (b) (6).
None of the usual manifestations on which an "attempt to cause" is commonly
based , is present here. There was no . strike nor threat of strike ; no picketing
nor threat of picketing ; no withholding by the local orchestra of its services
which the theatre management wished to procure . The coercive element essen-
tial to a finding of an "attempt to cause," if , it exists at all in' the instant
situation , lies in the fact that lacking the consent of the Respondent , the theatre
management was unable to bring into its theatre certain name or traveling bands
for whose services it had contracted . By withholding its consent to the appear-
ance at the local theatre of a name band , it is argued , the Respondent "attempted
to cause" the ' effectuation of its proposals . It is arguable , of course , whether
the Respondent can be required under any circumstances to give its consent
to the appearance on the stage of the local theatre of a traveling band, but a
,determination of the issue here rests on a much narrower base.
The Roy Acuff band , and presumably every other name band with which the
theatre contracted , was affiliated with the American Federation .of Musicians,
not named as a party respondent in this case , and the contract of its booking
agent with the theatre management provided , inter alia:
It is agreed that all the rules, laws and regulations of the American Fed-
eration of Musicians , and all the rules , laws and regulations of the Local
in whose jurisdiction the musicians - perform , insofar as they are not in
conflict with those of the Federation , are made part of this contract.
Section 3 , of Article 18 of the Federation 's constitution and bylaws provides :
Traveling members appearing in acts with vaudeville units or presenta-
tion shows are not permitted to play for any other acts on the bill without
the consent of the Local.
Section 4 provides :
Traveling members cannot , without the consent of a Local , play any
presentation performances in its jurisdiction unless a local house orchestra
is also employed.
From the foregoing it is seen that when the Palace Theatre contracted for the
services of the Acuff band , it agreed that if no contract had been consummated
between it and the Respondent for the employment of the local orchestra,
Respondent's consent for the Acuff band to appear would be required. That
AMERICAN FEDERATION OF MUSICIANS, LOCAL NO. 24 1551
such consent would be withheld in the absence of an agreement between the
local orchestra and the theatre management, is implicit in the terms of the Acuff
contract. The theatre having voluntarily agreed to the procedure which resulted
in the failure of the Acuff band to appear, it is difficult to see how the effectuation
of this agreement constituted an attempt on the part of the local union "to cause"
the theatre management to pay or deliver any money or other thing of value, in
the nature of an exaction. The sole action taken by this Respondent, insofar
as it is revealed by the record of this proceeding, in the matter of the Acuff band,
was to notify the American Federation of Musicians and the booking agent who
contracted with the Palace Theatre for the engagement of the Acuff band, that
no agreement had been consummated between it, the Respondent, and the
Palace Theatre. The actual cancellation of the engagement was made by
Petrillo when he notified the booking agent that Federation members would
not be permitted to play an engagement at the Palace Theatre until negotiations
between it and the local union had been "consummated." Therefore, if pressure
to a degree to amount to an "attempt to cause" was exerted in the instant
situation, it was exerted by the American Federation of Musicians and by virtue
of a contract which, as far as is shown here, was voluntarily accepted by the
theatre management. The contract itself is not placed in issue under the plead-
ings of this case, but if it were, and it were found that the incorporation by
reference of the Federation's constitution and bylaws operated to perpetuate the
practice of stand-by orchestras, there still would be lacking proof that the theatre
management's assent to it was involuntary." I am constrained to hold, there-
fore, that the evidence before me fails to establish that the Respondent attempted
to cause an employer "to pay or deliver or agree to pay or deliver any money
or other thing of value, in the nature of an exaction, for services which are not
performed or to be performed," and, therefore, that under the pleadings of this
case there is a failure of proof to establish a violation of Section 8 (b) (6) of
the Act. Accordingly, I shall recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAw
1. Gamble Enterprises, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Respondent, American Federation of Musicians, Local No. 24 of Akron,
Ohio, has not engaged in, and is not engaging in, any of the alleged unfair labor
practices within the meaning of the Act.
[Recommended Order omitted from publication.in this volume.]
"International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Local 294, A. F. of L., 87 NLRB 972.