Philadelphia Orchestra Association

National Labor Relations Board - Board Decisions

Dec 14, 1951

97 N.L.R.B. 548 (N.L.R.B. 1951)

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory employees, and coordinators ,4 employed in departments 70, 71,
72, 73, 74, and 77 of the Employer's Poughkeepsie, New York, plant,
excluding the leader-methods engineer, all production and mainte-
nance employees, cafeteria employees, office and clerical employees,
executives, guards, professional employees, all other employees at the
plant, and all supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 The parties agreed that one coordinator, employed in the tool-design department, should
be included as a technical employee. They disagreed as to the status of the other coordi-
nator, assigned to the time-study department, who the Employer contends is a professional
employee. As the record does not show that the second coordinator differs in any respect
from the tool-design coordinator, admittedly a technical employee, or that he has higher
qualifications than other time-study employees found not to be professionals, both coordi-
nators are included in the unit.
PHILADELPHIA ORCHESTRA ASSOCIATION and I. RAYMOND KREMER
PHILADELPHIA MUSICAL SOCIETY, LOCAL 77, AMERICAN FEDERATION OF
MUSICIANS and I. RAYMOND KREMER. Cases Nos. 4-CA-219 and
4-CB-35. December 14, 1951
Decision and Order
On April 25, 1951, Chief Trial Examiner William R. Ringer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent Union had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent Association had not engaged in and was not engaging in the
unfair labor practices alleged in the complaint and recommended that
the complaint against the Respondent Association be dismissed.
Thereafter I. Raymond Kremer, the charging party, and the General
Counsel filed exceptions and briefs. The Respondent Association filed
a brief opposing the exceptions of the General Counsel and of Kremer.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case.,
The Respondent Union's request for oral argument is hereby denied as the record, and
the exceptions and brief, in our opinion, adequately present the issues and the position of
the parties.
97 NLRB No. 80.
PHILADELPHIA ORCHESTRA ASSOCIATION 549
The Respondent Association is a nonprofit corporation engaged in
operating and maintaining the Philadelphia Symphony Orchestra.
During its regular 1949 season, the Respondent Association received
about $328,000 for 72 concerts*given by the orchestra within the Com-
monwealth, and about $252,000 for 59 concerts given outside the Com-
monwealth. Also during 1949, the orchestra broadcast 8 concerts over
the national network of the Columbia Broadcasting System, for which
the Respondent Association received $20,000. These broadcasts were
not sponsored by a commercial firm but were featured as public service
broadcasts by the Columbia Broadcasting System. For several years
the orchestra has made recordings in Philadelphia for Columbia Rec-
ords, Inc. During 1949 the Respondent Association received approxi-
mately $160,000 in royalties on recordings, of which approximately
$10,000 were attributable to records made during 1949.
While we are of the opinion that under recent court decisions the
Board may constitutionally assert jurisdiction in this matter,' we are
not convinced that it would effectuate the purposes of the Act to do so.
The effect on interstate commerce of the activities of a nonprofit or-
ganization like the Respondent Association, devoted to the presenta-
tion of musical performances of artistic merit, is too remote to warrant
taking jurisdiction in a field where we have not previously asserted it.3
Accordingly, we shall dismiss the complaint against both Respondents.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the Respondents,
Philadelphia Orchestra Association and Philadelphia Musical So-
ciety, Local 77, American Federation of Labor, be, and it hereby is,
dismissed.
Intermediatp Report
STATEMENT OF THE CASE
This proceeding arises under Sections 8 (a) (3) and 8 (a) (1) and Sections
8 (b) (2) and 8 (b) (1) of the Labor Management Act of 1947,' herein called
the Act.
On April 4, 1949, I. Raymond Kremer, as attorney for Clarence 0. Karella,
filed with the Regional Director for the Fourth Region of the National Labor
Relations Board , herein called the Board, a charge in Case No . 4-CA-219 alleg-
ing that Philadelphia Orchestra Association, herein called the Orchestra, had
violated Section 8 (a) (3) and 8 ( a) (1) of the Act, and a charge in Case No.
s liuardella v. Chandler, 172 F. 2d 402 ( C. A. 2, 1949 ) ; Ring v. Spina, 148 F 2d 641
(C. A. 2, 1945).
a See The Trustees of Columbia University in the City of New York, 97 NLRB 424
1 The National Labor Relations Act as amended by Public Law 101 , Chapter 120, 80th.
Congress , let Sess.
986209-52-vol. 9T--36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4-CB-35, alleging that Philadelphia Musical Society, Local 77, herein called the
Union, American Federation of Musicians , herein called the Federation, had
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. On September 13,
1949, the two cases were consolidated and on said date the General Counsel of the
Board by said Regional Director issued a complaint in the consolidated cases
alleging violations of Section 8 (a) (3) and 8 (a) (1) by the Orchestra and of
Sections 8 (a) (2) and 8 (b) (1) (A) by the Union.
The complaint, after alleging the corporate nature of the Orchestra, the inter-
state character of the Orchestra's business of conducting orchestral concerts, and
the status of the Union as a labor organization particularly, alleged the com-
mission of unfair labor practices as follows :
1. By the Orchestra, violation of Section 8 (a) (3) by, on or about April 24,
1949, terminating the employment of Clarence O. Karelia and not thereafter
reinstating him, for the reason "that he was not, did not become, and was not
accepted as, a member in good standing of the Union" ;
2. By the Orchestra, violation of Section 8 (a) (1), by such termination of
employment and nonreinstatement ;
3. By the Union, violation of Section 8 (b) (2), by, since September 20, 1948,
coercing, threatening, and inducing the Orchestra to terminate the employment
of Karelia and not to reinstate him, thereby attempting to cause and causing
the Orchestra to discriminate against Karelia in violation of Section 8 (a) (3) ;
4 By the Union, violation of Section 8 (b) (1) (A), by, since September 20,
1948, directing , instructing , and threatening Karelia against continuing in the
employ and performing services for the Orchestra.
The answer of the Orchestra denied any tendency of the alleged unfair labor
practices to lead to labor disputes burdening or obstructing commerce and- the
free flow of commerce, admitted that the Union "threatened and attempted to
coerce" the Orchestra to terminate Karelia's employment, denied that the
Orchestra was thereby caused to terminate such employment, denied that
Karella's employment was terminated but alleged that it expired by the terms
of his contract at the end of the season and that a new contract was not entered
into by the Orchestra with Karelia for the reason that "his services as a member
of the Philadelphia Orchestra were not satisfactory to its director."
The answer of the Union denied substantial tendency to interfere with inter-
state commerce, denied in substance the allegations affecting it, and alleged that
Karelia ' s termination was the result of expiration of his contract and was not
induced by the Union.
Pursuant to notice, a hearing was held in Philadelphia, Pennsylvania, on Oc-
tober 11, 13, and 14, 1949, before William R. Ringer, the undersigned Trial
Examiner, duly designated to conduct such hearing. Each party was represented
by counsel who participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence pertinent to
the issues was afforded all parties . Opportunity was afforded for oral argument
and for filing briefs with the Trial Examiner . Oral argument was made by
counsel for each party , and all parties waived the filing of briefs.
Upon the entire record in the case and from his observation of the witnesses;
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATION
The Philadelphia Orchestra 'Association is a nonprofit corporation, 'organized
and existing under the laws of the 'Commonwealth of Pennsylvania , with its
principal office and place of business in the city of Philadelphia, Pennsylvania.
PHILADELPHIA ORCHESTRA ASSOCIATION 551
At all times involved in this case it has been engaged in maintaining , conducting,
and operating an orchestra. During the period involved in this case the Orchestra
consisted of 102 musicians under the musical direction of Eugene Ormandy. It
has a schedule of concerts during the regular season commencing in October
.and ending in April and ordinarily has some postseason tours in the United
States. During the summer of 1949, it traveled to England in May and June.
During the years the Orchestra has built up a schedule of concerts in Phila-
delphia, and other cities, and regularly returns each year to these cities. During
the season of 1948-1949, the Oichestra gave 66 concerts in Philadelphia, 6 con-
certs in Pennsylvania outside of Philadelphia, and 59 concerts in States other
than Pennsylvania during the regular season. The record does not show exact
figures as to receipts from these various concerts, but approximately the amount
received from concerts in the State of Pennsylvania is $328,000 and from con-
certs outside Pennsylvania, $252,000. On the tours of the Orchestra the entire
personnel ordinarily travels from Philadelphia to the various cities taking with
them their paraphernalia.
The headquarters, as above indicated, of the Orchestra are in Philadelphia,
and most of its expenses, other than relating to its tours, arise and are paid in
that State. These expenses include the purchase of musical scores, occa-
sional purchase of instruments, printing of tickets, and advertising for the con-
certs in Philadelphia. Programs and posters for concerts are produced under
an arrangement whereby a Philadelphia company pays the expenses and retains
all receipts from advertising. During the 1948-1949 season, approximately
$1,000 was paid for telegram and long-distance communications relating to
concerts.
During the season in question, the Orchestra received $20,000 from the Colum-
bia Broadcasting Company for eight 1-hour broadcasts from Philadelphia. These
broadcasts were over the Columbia Broadcasting Company's national network.
For many years the Orchestra has each year, under an arrangement with
Columbia Records, Inc., made recordings in Philadelphia under an arrange-
ment for receipt of royalties upon sale of records so produced. The receipts
each year of such royalties are from the sales of all records previously made by
the Orchestra. The royalties in any particular year, received from records made
that year, vary from 0 to $10,000. The Orchestra received during the 1948-49
season royalties of approximately $160,000 from the sale by Columbia Records,
Inc., of records previously made by the Orchestra. Obviously, such sales were
made not only in Pennsylvania, but also in other States.
It is contended by the Respondent Orchestra and the Respondent Union that
the Orchestra is not subject to the Act on account of being a noprofit cor-
poration. The undersigned finds no merit in this contention.2 It is also con-
tended that the type of product furnished by the Respondent Orchestra is not
commerce within the meaning of the Act. The earlier cases relied on with respect
to baseball, vaudeville, and musical performances tend to support. this conten-
tion. 'It is the view of the undersigned, however, that under the more recent
attitude of the courts the facts in this case bring the Respondent Orchestra
within the jurisdiction of the Board e It is clear that within the season of
1948-49, the Orchestra received approximately $252,000 for performances out-
side the Commonwealth of Pennsylvania. The legislative history with respect
to the "featherbedding" section of the Act indicates that Congress had in mind
jurisdiction of the Federation and the Union as within the Board's jurisdiction.4
2 Polish National Alliance , 42 NLRB 1375, enfd . 136 F. 2d 175, affirmed 332 U. S. 643.
s See Gardella v. Chandler, 172 F. 2d 402.
Legislative History of the Labor Management Relations Act (1948), pp. 316, 549, 584,
813, and 1639.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned is of the opinion and finds that it will effectuate the policies
of the Act for the Board to exercise jurisdiction in this case 6 -
II. THE LABOR ORGANIZATION INVOLVED
Philadelphia Musical Society, Local 77, American Federation of Musicians,
,is a labor organization within the meaning of Section 2 (5) of the Act, admitting
to membership employees of the Orchestra.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The Union is the Philadelphia Local of the American Federation of Musicians.
For many years it has had annual contracts with the Orchestra relating to em-
ployment, salaries, and working conditions of musicians in the Orchestra. Indi-
vidual annual contracts of employment have also been regularly entered into be-
tween the Orchestra and its musicians. In the contracts involved in this case both
the trade agreements between the Union and the Orchestra and the employment
agreement between the Orchestra and Karella, contain provisions incorporating
by reference all applicable provisions of the other.
The trade agreement between the Union and the Orchestra for the season of
1948-49 contained a provision, the same as in the contract for the previous
season, that all rules, regulations, and conditions not mentioned therein were to
be in accordance with the rules and regulations of the American Federation of
Musicians. The bylaws of the Federation, effective at all times here involved,
contained provisions relating to the transfer of a member of one Local to a Local
where the member desires to play. These bylaws will be considered in detail
hereinafter.
As background in considering the facts in this case, it should be noted that all
musicians in the Orchestra are members of the Federation and that Harl
McDonald, the manager of the Orchestra, Eugene Ormandy, the conductor, and
Henry W. Schmidt, personnel manager, are members of the Federation and of the
Local In addition, it has been the practice and has been recognized as the prac-
tice by the Orchestra, the Federation, the Union, and the musicians employed
by the Orchestra, that all musicians employed by the Orchestra shall be members
of the Federation and the Union.
The Orchestra employs one tubist. For many years the tubist had been one
Donatelli. Early in 1948, Donatelli was notified that his annual contract would
not be renewed for the season of 1948-49 but that he would be given a pension.
This action was taken on account of Donatelli 's age. He was to be permitted
to continue through the balance of the 1947-48 season. Donatelli indicated
his unwillingness to retire at the end of the season. The Orchestra notified the
Union of the situation and requested of the Union an audition for candidates for
the position of tubist for the following season. The Union declined to consent
to such audition, claiming that Donatelli's position would not be vacant.
During the spring of 1948, Donatelli was on occasions ill and a substitute was
necessary on concerts using a tuba player. Torchinsky, a tubist in the NBC
orchestra, was first used but because of commitments to the NBC orchestra, he
could not continue to substitute and another tubist was necessary. At that time
Karella was suggested to McDonald who arranged, with the consent of the Union,
for him to come to Philadelphia . Karella played in several concerts. He was
a inenlber of Local 10 of the Federation, in Chicago.
17
The result of his satisfactory performances was an offer for probational em-
ployment as tubist for the 1948-49 season. A contract was sent to him at his
5 Stanislaus Implement , 91 NLRB 618.
PHILADELPHIA ORCHESTRA ASSOCIATION 553
home in Chicago, was signed and returned to the Orchestra The contract was
dated April 21, 1948, and in the usual form for "the concert season of 1948-1949
(1-year probation as per trade agreement)." The trade agreement referred to
was the trade agreement for the current year and its expected ontinuation for
the season 1948-49. The trade agreement provided for prof ational employ-
ment for the first year of a new employee and specifically stated that conditions
governing automatic renewal of contracts should not apply during the first year
of employment as a member of the Orchestra. The concert season of 1948-49
referred to in Karella's contract was recognized by the parties as expiring on
April 24, 1949, which date was treated as the end of the regular season. Further
concerts were regularly considered as postseason tours.
The 1948-49 season opened with a concert in Philadelphia on October 1.
The first rehearsal was scheduled for September 27. Karelia came to Philadel-
phia shortly before the first rehearsal and reported to McDonald. It is apparent
that on September 13 he obtained from the secretary of Local 10 at Chicago a
transfer card indicating that he was a member in good standing of that Local.
He brought such transfer card with him to Philadelphia.
The bylaws of the Federation in effect in 1948 are contained in Article 14.
Section 1 of that Article provides that members wishing to locate in another
jurisdiction shall upon application to their local secretary be issued a transfer
card if a member in good standing Section 2 provides that any local upon
presentation to it by a member of a properly executed transfer card and upon
presentation by such member of his membership card in the local which issued
him the transfer card showing good standing and on the payment of current
quarterly dues, shall issue to the holder of such card a local membership card
and place his name upon the role of membership, which shall entitle such member
to all the privileges of the Local except voting rights, sick or death benefits,
or full membership until the full amount of initiation fees has been paid. Sec-
tion 3 provides that a member may deposit his transfer card with any local in
the jurisdiction of which he has established a bona fide residence, which transfer
card shall be kept on file by the secretary of the local in which it is deposited.
Section 8 provides as follows : "A member cannot, before depositing his transfer
card with a local and before obtaining the quarterly due card from the secretary
of same, solicit, accept or fill an engagement in the jurisdiction of the local unless
it is otherwise provided for by the laws of the Federation."'
Section 25 of said Article is as follows : "If it can be proven that in the interim
between arrival and the presentation of card, a member has violated any of the
Local or the Federation laws, the member shall, after trial and conviction by the
Executive Board of the Local in whose jurisdiction the offense was committed,
be fined not to exceed the sum of one hundred dollars ($100). The fine is to be
paid into the treasury of the Federation."
Karelia on a date shortly before September 21, went to the Academy of Music
in Philadelphia to determine whether his tuba had been delivered there and
found that an audition was in progress. He talked with Mr. Liuzzi, the president
of the Union and chairman of its executive board. He had not previously known
Liuzzi. According to Karelia, Liuzzi asked him if he was Karelia and asked him
what he was doing there. Karella stated that he was to play in the Orchestra
and Liuzzi said that he would not accept his transfer. Liuzzi's version does not
substantially differ. According to him, he told Karelia that as a member of the
Chicago Local he should know that the Philadelphia Local had power to refuse
a transfer if a musician comes into the jurisdiction with an engagement "in his
pocket," and testified that he told Karelia that he would save time not to come
to the Local to present his transfer because it would be turned down. He testified
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that his executive board had directed him not to accept any transfers of members
coming into the jurisdiction with an engagement contract.
The same day Karelia talked to Schmidt, personnel manager of the Orchestra.
Schmidt advised him to deposit his transfer card with Liuzzi and if he was not
accepted to deliver the transfer to McDonald, the manager of the Orchestra.
The next day or within the next few days, Karelia went to Liuzzi's office and
presented the transfer card. There is no dispute that Liuzzi refused to accept
the deposit of the transfer card.
Karelia then reported to McDonald that Liuzzi had refused to accept his
transfer card and asked his advice. According to Karelia, McDonald advised him
not to worry and stated he would take care of the matter. McDonald testified
that he told Karelia that the Orchestra had entered into a contract with him and
that he should continue to play and that the Orchestra expected to go through
with his contract. It is clear from the testimony of McDonald and Karelia that
McDonald advised Karelia to submit to the Union his transfer card and his
check for a year's dues in the Union. This Karelia did on October 2 and received
a reply dated October 4 from Liuzzi stating that he had talked with Mr.
McDonald and had told him that he was in no position to accept the transfer
at that time. He further wrote that McDonald had been advised that he, Liuzzi,
would "take the `tuba matter' up with my Executive Board at its next meeting."
On October 13, the next regular meeting of the executive board of the Union,
the "tuba matter" was considered. It is apparent that Karelia went to the union
office. He testified that he had thought it was to be "an interrogation board" but
that the secretary informed him that the board had decided that he should leave
the Orchestra immediately. Karelia asked the secretary to put the decision in
writing and took the statement to McDonald, who told him not to worry, that
the Orchestra would take care of any fines and that he should continue to play.
Karelia testified credibly to a conversation during this period before a rehearsal
in which he was approached by Schmidt and one Tomei, a former president of the
Union, who played in the Orchestra. It will be recalled that Schmidt, a member
of the Union, was also personnel manager of the Orchestra. Schmidt stated to
Tomei that he wanted him to hear the conversation. Schmidt told Karelia that
he had two conflicting orders to give him, one from Liuzzi to tell Karelia "to get
off the stage" and one from McDonald to continue to play. He stated that his
direction to Karelia not to play was by reason of Liuzzi's instruction to Schmidt
as a union member. The direction from McDonald was through Schmidt as
personnel manager.
On October 13, 1948, after the meeting of the executive committee of the Union,
the Union sent a telegram to McDonald as manager of the Orchestra, as follows :
"Be advised that Executive Board Local 77 has found Karelia guilty of entering
our Jurisdiction contrary to our national laws and therefore has been instructed
to leave Philadelphia Orchestra engagement immediately." Upon receipt of this
telegram, McDonald referred it to the attorneys for the Orchestra, who on October
18 wrote Liuzzi a vigorous letter stating that such instructions to Karelia to leave
the Orchestra were an unfair labor practice under the Act and indicating that
the Orchestra would resist such pressure to the extent of filing charges with the
Board, seeking an injunction and possibly bringing an action for damages. It is
apparent from Karella's testimony that these pressures by the Union on Karelia.
and the Orchestra were taking place shortly before the scheduled concert at.
Richmond, Virginia, on October 18. Karelia credibly testified that shortly before
that concert Schmidt informed him that Liuzzi had asked Schmidt to call Liuzzi
and tell him if Karelia performed on the Richmond concert and that in that
event the Orchestra members would probably be called off the performance. In,
PHILADELPHIA ORCHESTRA ASSOCIATION 555
Richmond, according to Karelia, McDonald called him at his hotel and told him
that he should not worry, that the attorneys for the Orchestra had instructed the
Union that they were not to interfere with the concert that night. Karelia
played and there was no strike.
In the management of the Orchestra, Eugene Ormandy, the conductor, con-
centrates on the musical aspects of performance and is shielded by McDonald
from annoyances and disturbance with respect to business and other nonmusical
problems. Both McDonald and Ormandy testified with respect to Ormandy's
judgment concerning Karella's measuring up to the standards of performance of
the Orchestra. It is clear that this matter of judgment is one left to Ormandy.
Sometime in November 1948, according to McDonald, Ormandy told him that
Karella was a very capable technician but that he was not fitting into the brass
section. Ormandy testified that many brilliant technicians lack the flexibility
enabling them to fit into the playing of a whole orchestra, many of whose mem-
bers may be less brilliant in individual performance. Ormandy at that time
felt that Karelia was not so fitting in. McDonald advised him to be patient.
A few weeks later, according to McDonald, Ormandy advised that he was not
having any better success in discovering in Karella the flexibility and adjustment
that he desired.
Sometime in November 1948, Karella saw Liuzzi at the Academy of Music and
asked him how things were working out. According to Karelia whom the under-
signed credits, Liuzzi said, "We are going to throw the book at you."
On December 28, 1948, Ormandy dictated to his secretary and sent to McDonald
a memorandum referring to several matters and including the following, "For
the time being the ones who are to be let out are Snader and Karelia."
January 15, 1949, was the date fixe$ by the general contract by which either
the Association or an employee should notify the other party as to renewal for
the following season. On January 3, Ormandy sent to McDonald a memo-
randum, as follows : "This is to inform you that Mr. Clarence Karella, the tuba
player, has not measured up to my satisfaction and since he is here on a one-
year probationary contract, he should be notified that his contract will not be
renewed for.the Season, 1949-1950." Between January 3 and January 6, the
executive committee of the Orchestra approved Ormandy's recommendation
that Karella's contract not be renewed.
On January 6, 1949, McDonald wrote to Karella as follows :
As you know, all contracts for newcomers to the Orchestra are made on
a one-year probationary basis.
I very much regret to have to notify you that we cannot renew your
contract for the Season, 1949-1950.
The whole of the Union controversy has been unfortunate and you are,
of course, not to blame for the confusion that has resulted. Under the
circumstances, however, our Board feels that it would be inadvisable to
attempt an extension of your contract beyond the current season. Most
sincerely.
Both McDonald and Karella agree in their testimony that there was con=
versation between them regarding the letter of January 6. McDonald did not
recall that Karella called him on the telephone. His recollection is that Karelia
spoke to him at the Academy of Music saying that he had the letter and that he
was in a disturbed state. Karella 's testimony is that he immediately called
McDonald and asked him what the letter meant. According to him, McDonald
said in effect that they had to live with union organizations. According to
Karella, he sympathized with McDonald but said, "You can't let me down this
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way. After all, you have put me in jeopardy." Karella testified that he asked
McDonald for permission to publish the letter on account of the wrong being done
him, said to McDonald, "If it's true that you were pushed into this decision,
I want it known by the public that that is the way I lost my job, to keep my
professional standing." According to him, McDonald said, "Don't go off half-
cocked. I will call you back." Karella further testified that in this conversation
he asked McDonald when the season would end and whether he was to go to
England as part of the season, that McDonald told him that the season ran to
June 23 and that he was to go on the English tour He further testified that
McDonald called him later, and told him not to worry about everything and
that everything was all right. I credit Karella's account, and hereinafter find
that McDonald was attempting to cushion the blow-the fact that Karella was
not sasisfactory to Ormandy.
Late in January or early February, Karella went to Liuzzi's office and dis-
cussed his union situation. It is clear that at this time Karella was disgusted
and was considering leaving the Orchestra in Philadelphia According to Liuzzi,
Karella came to his office and discussed his difficulties and indicated that he
should leave. Karella then suggested that he might leave the Orchestra after
playing in Chicago, Karella's home. Apparently shortly before this meeting
Karella asked his attorney, Mr. Kremer, to try to work the matter out with Mr.
Moldawer, attorney for the Union After Karella talked with Liuzzi about
leaving only after playing a concert in Chicago, Liuzzi and Moldawer insisted
that lie resign immediately and Karella told him that "the whole deal is off."
On February 17, 1949; the Union wrote McDonald as follows : "The Exec-
utive Board of Local 77, A. F. of M. has instructed me to notify you that since
the tubist Clarence Karella is not a member of this Local and has not had his
transfer accepted by this Local, all the other members of the Philadelphia
Orchestra will be advised that they may not perform with the said Karella on
or after March 7, 1949." McDonald credibly testified that verbal statements to
the same effect were made over the telephone by either Liuzzi or Scola, secretary
of the Union. It is entirely clear that the Union was threatening to call its
musicians on strike against the Orchestra if Karella continued to perform after
March 7. Thereafter and before March 3, 1949, Liuzzi conferred with Orville
H. Bullitt, president of the Orchestra, with respect to the threatened strike.
Bullitt suggested that the dispute be arbitrated.
There followed an arbitration proceeding iri which a decision dated March 7,
1949, was issued. The Orchestra selected a Mr. Drinker, the Union a Mr. Ingber,
and the two chose Judge WinneW It is not clear from the record exactly what
issues were presented to the arbitration board. There was no formal agreement
for arbitration. From a reading of the arbitration decision -there can be no
doubt that the matter of retention of Karella was involved. McDonald testified
that he was present representing the Orchestra and that the matter to be arbi-
trated arose from the Union's demand that the Orchestra hold an audition to
select a tubist, McDonald testified that the Orchestra was willing to have such
an audition only if Ormandy would be the judge. It is thus apparent that after
the February 17 threat to strike, there was an attempt to solve the problem by
suggesting that an audition be held to determine whether Karella or another
musician should fill the position of tubist and that the Union and the Orchestra
were not able to agree on who should judge the audition. From the evidence it
is clear that the arbitration as conducted and decided covered the more basic
issue, whether Karella should be permitted to play.
PHILADELPHIA ORCHESTRA ASSOCIATION 557.
The decision reads as follows :
We recognize the rules of the Union which/aim at giving preference of
employment to local musicians where talent is equal.
Clarence Karella, of Chicago, was hired for the 1948-49 season at a time
when the management of the Orchestra concluded that there was not avail-
able a tuba player acceptable to the musical director.. An audition should
have been made In failing to arrange, neither side was without fault.
We are now faced with the fact that to terminate Karella's employment
at this time might impair the high standards of the Orchestra. There is no
local man acceptable to the musical director before April 23, 1949.
We are, therefore, of the opinion that the employment of Karelia should
terminate on April 23, 1949, at which time a local man acceptable to the
musical director will be available for the tour of the Orchestra both abroad
and in this country.
We commend the parties for continuing the concerts pending the decision
of the dispute by arbitration.
This arbitration decision, of course, did not pass in any way upon the funda-
mental dispute between the Union and the Orchestra which was.whether Karella
should be allowed to play when his transfer card had been refused by the Union.
On April 8, 1949, McDonald wrote Karelia a letter stating that his contract
was the usual one-season probationary contract, commenced on September 27,
1948, and would terminate on April 24, 1949.
Karella's contract was not renewed.
B. The Philadelphia Orchestra Association
As indicated above, the Orchestra is alleged to have discriminated against
Clarence O. Karelia by terminating his employment on or about April 24, 1949,
for the reason that he was not a member in good-standing of the Union. The
discrimination claimed as termination relates to the failure to employ Karella
beyond April 24, 1949, when his probational contract for the season of 1948-49
expired. The issue is whether the Orchestra failed to'continue his employment
on•account of his not being a member of the Union or because he had not measured
tip to the standards of performance of the Orchestra.
The chronology of events set out above sheds light on this issue, but makes its
difficulty apparent. In the first place, there is very little conflict in the evidence
as to the relations between Karelia and the Union and between Karelia and the
Orchestra during the period involved It is my opinion that the witnesses were
substantially credible.
There are circumstances tending strongly to indicate that the union difficulties
Karella was having would cause the Orchestra to wish to relieve itself of an
annoying situation by not renewing Karella's contract. There was difficulty
with respect to his playing from the time he reported for the 1948-49 season.
The Union resented the execution of a contract between Karelia and the Orches-
tra for the season without Karelia having previously deposited his transfer.
Section 8 of the bylaws of the Federation clearly prohibits such a contract, but
the express right in Section 2 to deposit a transfer card is nowise qualified by
Section 8. I am of the opinion that the bylaws of the Federation could not legally ,
justify the Union in refusing to accept Karella's deposit of his transfer card.
The Union took the position that it was so justified and throughout the season
pressed both Karella and the Orchestra for Karella not to play . Such pressure is
hereinafter found to be a violation of the Act.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
It must be kept in mind that McDonald, manager , and Schmidt, personnel
manager, were members of, the Union and were desirous of working out the
difficulty within union objectives to the satisfaction of the Union as well as of the
Orchestra. Karelia himself was a member of the Chicago Local, and was
interested in working out the problem in some way whereby he would be per-
mitted to deposit his transfer card and play in the Orchestra without being on bad
terms with the Union.
McDonald several times told Karelia that he should not worry and that things
would work out. It seems clear that Karelia was genuinely surprised when he
received McDonald's letter of January 6, stating his contract would not be
renewed, particularly in view of the last paragraph. This paragraph unques-
tionably gives the union controversy as the reason for not renewing the contract.
It first says that "the whole of the Union controversy has been unfortunate, and
you are, of course, not to blame for the confusion that has resulted." It then
follows with the statement that the Orchestra feels "that under the circumstances
it would be inadvisable to attempt an extension of your contract beyond the
current season ." (Emphasis supplied.) This letter, written by McDonald on
behalf of the Orchestra, certainly says to Karelia that his contract will not be
.renewed because of the union controversy and the resulting confusion. It implies
that the union would continue to resist his employment. In the usual discrimina-
tion case in a commercial or manufacturing business a finding that the employee
was discriminated against would seem entirely appropriate in such a situation.
The nature of the product involved in the concert activities of the Orchestra-
near perfect orchestral music-and the relationship of its musical director in
bringing such a product out of a group of employees require further consideration.
I am satisfied from the record that Ormandy, as musical director of an,orchestra
that is considered by him to be one of the very few finest in the world, is extremely
interested in the quality of performance of each member of the Orchestra and in
'determining whether to continue a probational employee for the following year
decides the matter on its musical merits. It is also apparent that Ormandy is
largely shielded by McDonald from business and administrative problems and
annoyances and left to devote his time and attention to the directorship of the
more than 100 musicians. The record is clear that Ormandy, within several weeks
after the opening of the season, was troubled about the quality of Karella's play-
ing. He testified that it was not a question of whether Karelia played excellently,
for he did, but that he did not seem to merge into the playing of the Orchestra with
the degree of coordination that is necessary for the high standard of performance
of the Orchestra. He told McDonald of his incomplete satisfaction, but gave some
leeway in hope that Karelia would develop. In any event, having entered into a
contract for the season, he decided to continue to hope that he could bring out such
improvement as he felt necessary. He later told McDonald that he was not
succeeding.
I am satisfied and find that Ormandy carne to the conclusion that Karelia should
not be continued beyond the season for the reason that in Ormandy' s musical
judgment, Karelia did not measure up in performance to the standard Ormandy
'felt necessary and that Ormandy's recommendation to the executive board was
not on account of the union difficulty.
It is true that McDonald in notifying Karelia gave him the union difficulty as
the reason . He testified, in effect, that he did not wish to hurt Karella's standing
'as a tuba player by putting in the letter the fact that he had not proved satisfac-
'tory to Ormandy and felt that the union reason would harm Karelia far less in
seeking connections with other musical organizations in the future . Karelia
credibly testified that when he went to McDonald immediately after receiving the
PHILADELPHIA ORCHESTRA ASSOCIATION 559
letter of January 6 and asked McDonald what the meaning was, McDonald said
that they "had to live with union organizations." McDonald was not frank with
]Karelia in this connection. It is my opinion and I find that he was avoiding the
unpleasant fact of Ormandy 's dissatisfaction by blaming the Union . McDonald's
.explanation of including the paragraph in the letter is accepted. It is found that
he was unwilling not only to put in writing but also to tell Karelia that the real
reason was his failure to measure up to the Orchestra standard.
The undersigned is satisfied from the record and has found that Ormandy's
recommendation was based upon his judgment of the quality of Karella's
playing, and that such judgment was not affected by the Union difficulty. I
further find that without the approval of the musical director the contract of
Karelia would not have been renewed. Accordingly, it is my judgment that
the union difficulty was not a substantial cause of the nonrenewal of Karella's
contract and that the Respondent Orchestra did not discriminate against Karelia
in regard to his tenure.
Since the interference, restraint, and coerciot alleged in the complaint de-
pends upon the alleged discrimination with respect to the termination of Karelia,
it likewise has not been proved, and the undersigned finds that the Respondent
Orchestra has not interfered with, restrained, or coerced its employees in ter-
minating Karella's employment.
C. Philadelphia Musical Society, Local 77
The Union is alleged in the complaint to have attempted to cause and caused
the Orchestra to discriminate against Karelia in violation of Section 8 (a) (3)
of the Act. Since I have found that the Orchestra did not terminate Karelia on
account of his nonmembership in the Union, the allegation that the Union
caused such termination in violation of Section 8 (a) (3) must fall. It is
accordingly found, for the reasons above set out, that the Union has not caused
such discrimination by the Orchestra against the employee.
The situation is quite different, however, as to the allegation that the Union
attempted to cause the Orchestra to discriminate against Karelia in violation
of Section 8 (a) (3). The evidence is overwhelming and substantially not
denied that the Union repeatedly attempted to cause the Orchestra not to permit
Karelia to play. It is unnecessary to go through the evidence in that respect
as heretofore set out, wherein it clearly appears that the Union, in writing
and orally, asked Karelia not to play, asked the Orchestra not to permit him
to play, and threatened, in writing and verbally, to cause the other employees
,of the Orchestra to refuse to play, in the event that Karelia should play. There
can be no doubt of this factual situation.
It is contended by counsel for the Union that since a necessary element of
the allegation of attempting to cause the discrimination is that such discrimina-
tion should be in violation of Section 8 (a) (3), there is included the element
of encouraging or discouraging a labor organization. The Union contends that
there can be no finding and conclusion of 8 (b) (2) in this case since termina-
tion of Karelia could not reasonably have encouraged membership in the Union
and unquestionably could not have discouraged membership in any labor organi-
zation. I agree that there does not appear any aspect of discouragement which
would result from Karella's termination under pressure from the Union, but
the same is not true with reference to encouragement. The Board passed upon
the same problem in the American Pipe and Steel Corporation and International
Brotherhood of Boiler Makers, etc., 93 NLRB 54. There it was contended that
a discharge or suspension would not violate Section 8 ( a) (3) and 8 (b) (2)
because the employee was already a union member and such discharge or sus-
pension would not encourage membership in a labor organization but would
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only encourage the acceptance of a membership obligation, in that instance,
hiring through a hiring hall by one already a member. The Board did not agree
with the contention and held that the enforcement of an alleged obligation of
membership by causing or attempting to cause the employer to discharge the
employee would strengthen the position of the local and forcibly demonstrate
to the employees that membership in as well as adherence to the rules of that
organization was desirable. So, in this case, I am of the opinion and find that
enforcement of the requirement of transfer would have the effect of encouraging
membership in the Union e
On the basis of the entire record, I find that the Union attempted to cause
the Orchestra to discriminate against its employee, Clarence O. Karella, in
violation of Section 8 (a) (3) of the Act.
The complaint also alleged that the Union directed, instructed, and threatened
Karelia against continuing in the employ and performing any services for the
Orchestra. Findings have already been made which cover this issue. It is
unnecessary to repeat in detail the evidence of the written and oral instruc-
tions to Karelia that he should leave his employment with the Orchestra. This
was clearly interference with his right to employment with the Orchestra
without engaging in union activities including transfer to or membership in
the Union. Actually the threats to the Orchestra that the other union members
would be called off stage if Karella played were threats and directions to
Karelia as well. It is found that the Union directed and instructed and
threatened employee Karelia against continuing in the employ of and performing
services for the Orchestra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring
in connection with the operations of the Respondent Orchestra, described in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent Union has vigorously attempted
to cause the Respondent Orchestra to discriminate against an employee and
has interfered with, restrained, and coerced the employee in the exercise of
the rights guaranteed in Section 7 of the Act, it will be recommended that the
Respondent Union cease and desist from such illegal activities. These activities
strike at the primary objectives of the Act and manifest a purpose to defeat
employees in the exercise of the rights guaranteed thereunder. In order to
make effective the guarantees of Section 7 of the Act, it will be recommended
that the Respondent Unioix cease and desist from in any manner infringing
upon the rights guaranteed by the Act.
CONCLUSIONS OF LAW
On the basis of the foregoing and upon the entire record in the case, the
undersigned makes the following conclusions of law:
1. Philadelphia Orchestra Association is-engaged in commerce and activities
which affect commerce within the meaning of Section 2 (6) and (7) of the
Act.
E Accord : The Radio Officers' Union of the Commercial Telegraphers Union, AFL, 92
NLRB 1266.
PHILADELPHIA ORCHESTRA ASSOCIATION 561
2. Philadelphia Musical Society , Local 77, American Federation of Musicians,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
- 3. By attempting to cause the Respondent Orchestra to discriminate against
its employee , Clarence O. Karella , on account of his nonmembership in the
Respondent Union, the Respondent Union engaged in and is now engaging in
unfair labor practices within the meaning of Section 8 ( b) (2) of the Act.
4. By restraining and coercing Clarence O . Karella, an employee of the
Respondent Orchestra , in the exercise of rights guaranteed in Section 7 of the
Act, the Respondent Union engaged in and has continued to engage in unfair
labor practices within the meaning of Section 8 ( b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
6. The Respondent Orchestra , in connection with its nonrenewal of the con-
tract of Clarence O. Karella, did not engage in and is not now engaged in an
unfair labor practice within the meaning of Section 8 ( a) (3) or 8 (a) (1)
of the Act. ,
7. The Union , in connection with its insistence that Clarence O. Karella be
terminated , did not cause the Respondent Orchestra to terminate said Karella
in violation of Section 8 (a) (3) of the Act and did not engage in and is not
now engaged in an unfair labor practice within the meaning of Section 8 (b)
(2) of the Act.
[Recommended Order omitted from publication in this volume.]
Appendix A
NOTICE TO ALL MEMBERS OF PHILADELPHIA MUSICAL SOCIETY , LOCAL 77, AMERICAN
FEDERATION OF MUSICIANS , AND TO ALL EMPLOYEES OF PHILADELPHIA ORCHESTRA
ASSOCIATION , PHILADELPHIA , PENNSYLVANIA :
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE, PHILADELPHIA MUSICAL SOCIETY, LOCAL 77, AMERICAN FEDERATION OF
MUSICIANS , WILL NOT attempt to cause PHILADELPHIA ORCHESTRA ASSOCIA-
TION, its officers , agents, successors , or assigns , to terminate or otherwise
discriminate against employees in regard to their hire or tenure of employ-
ment, or any term or condition of employment in violation of Section 8 (a)
(3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees of PHILA-
DELPHIA ORCHESTRA ASSOCIATION , its successors or assigns , in the exercise
of the right to refrain from engaging in any or all of the concerted activities
guaranteed in Section 7 of the Act.
PHILADELPHIA MUSICAL SOCIETY, LOCAL
77, AMERICAN FEDERATION OF MUSICIANS,
Union.
By --------------------------------------------------
(Representative ) ( Title)
Dated --------------------
i
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.