American Federation Of Musicians; Miami Federation Of Musicians, Local 655 (Royal Palm Dinner Theatre, Ltd.)

National Labor Relations Board - Board Decisions

Jun 13, 1985

275 N.L.R.B. 677 (N.L.R.B. 1985)

MUSICIANS (ROYAL PALM THEATRE)
American Federation of Musicians ; Miami Federa-
tion of Musicians ,. Local 655 (Royal Palm
Dinner Theatre , Ltd.) and National Association
of Orchestra Leaders . Case 12-CB-2626
13 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 February 1985 Administrative Law Judge
Hutton S. Brandon issued the attached' decision.
The Respondents jointly filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief. ' '
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions and to adopt the recommended Order:
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and.orders ,that the Respondents, American
Federation of. Musicians and Miami Federation,of
Musicians, Local 655, their officers, agents, and
representatives, shall take the action 'set forth in the
Order.
1 In adopting the judge' s decision , we have noted and corrected eer-
tain inadvertent errors which do not affect our agreement with his con-
clusions -
DECISION
STATEMENT OF THE CASE -
HUTTON S. BRANDON, : Administrative Law Judge.
This case was heard at Miami, Florida, on November 5-
6, 1984. The charge was filed on April 2, 1984, by Na-
tional ' Association of Orchestra Leaders- (the Charging
Party) and the complaint issued on May. 17, 1984, alleg-
ing' a violation of Section 8(b)(1)(B) of the' National
Labor Relations Act (the Act)t by the American Federa-
tion of Musicians (Respondent International or the Iiiter-
national) and the Miami Federation of Musicians, Local
655 (Respondent Local, the Local, or, jointly with the
International, Respondents) by filing, considering, and
fining John Klingberg, an employee of Royal Palm
Dinner Theatre, Ltd. (the Theatre), because the Theatre
did not have a collective-bargaining agreement with Re-
spondent International or Respondent Local. The pri-
mary issues are whether: (a) the charge was timely
i Sec 8 (b)(1)(B) of the Act provides that "it shall be an unfair labor
practice for a labor organization or its agents to restrain or coerce
an employer in the selection of his representatives for the purposes
of collective bargaining or the adjustment of grievances "
677
within the meaning of Section 10(b). of the Act;' (b)
Klingberg was a supervisor within the meaning of Sec-
tion 2(11) of the 'Act, at all material times; and (c)
whether Respondents' coerced or restrained the Theatre
in its selection of a collective-bargaining representative
by their actions with respect-to Klingberg. '
On the entire record including my observation of the
demeanor of the witnesses and after' due consideration of
the briefs filed by the General Counsel, the Charging
Party, and Respondents, I make the following
FINDINGS OF FACT
'I. JURISDICTION
The Theatre is and has been at all material times a
Florida partnership with its -principal office and place of
business located in Boca Raton, Florida, where it is and
has been engaged in the business of operating a dinner
theatre presenting live theatrical productions and a full
course dinner. During the -fiscal year preceding issuance
of the complaint,•the Theatre, in the course and conduct
of its business, operations, - derived gross revenues in
excess of $500,000 and during the same period of time
purchased and received at its Boca Raton, Florida facili-
ty goods and materials valued, in excess of $50,000 direct-
ly from suppliers. located • outside the State of Florida.
.Based on the foregoing commerce information which
Respondents -admit, I conclude.that the Theatre is, and
has been at all material times, . an employer engaged in
commerce within the•;meaning ,of Section 2(2), (6), and
(7) of the Act. , . , .
.
The complaint alleges, Respondents admit, and I find
that' each is a' labor organization within the meaning of
Section 2(5) of'the'Act.3
2 Sec 10(b) of the Act provides "that no complaint shall issue based
upon -any unfair labor practice occurring more than six months'prior to
the filing of the charge with the - Board and the service of a copy thereof
on the person against whom'such charge is made •4 "
3 Respondent International denies that it was served with a copy of a
charge filed against it contending that during the investigative stage it
was not,advised by the General Counsel that it was a respondent in the
case and , further,'there was nothing on the face of the charge to lead it
to believe that it was in fact a'respondenf I find no ment to'this conten-
tion The formal papers clearly reflect that a copy of the charge was
sewed - upon Respondent -International on Apnl. 2, 1984 , and was received
by Respondent on April (5, 1984 It is clear that the name of the charged
party set forth in the -charge is §uffciently broad to include Respondent
International It is likewise clear'that Respondent International participat-
ed in the investigation of the charge and was aware of its involvement in
the fining of Klingberg which is the predicate for the complaint herein
Also the complaint clearly naming the International as the Respondent
was duly served upon Respondent on May 17, 1984 As the General
Counsel's brief points out citing Kern's Bakeries, Inc, 227 NLRB 1329
(1977), it is the complaint and not the charge which gives Respondent
notice of the specific unfair labor practices for which a remedial order is
sought The complaint here served to resolve any ambiguity of the
charge regarding who the respondent or respondents were, and there was
no fundamental unfairness practiced against the International since it was
served with a copy of the charge when it was, filed The addresses of
both the Local and the International were on the face of the charge Re-
spondent International has shown no prejudice here Moreover, the
Board has long held that even a misnomer of a respondent in the charge
provides no basis for quashing the complaint where the respondent has
actual notice of the charge See Peterson Construction Co, 106 NLRB 850
(1953)
275 NLRB No. 97
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Material Facts
Klingberg was employed by the' Theatre as its music
director for over 2 years prior to-the hearing in this case.
Klingberg, a salaried employee, testified that he was re-
sponsible for all music at the Theatre whether it was re-
lated to, a show production or some other aspect of the
Theatre's operation. It was the Theatre's practice to use
tape-recorded music in connection with its musical show
productions rather than live musicians. It was Kling-
berg's function and responsibility to arrange for the pro-
duction of the tape-recorded music, and he did so by ar-
ranging for a recording studio and contacting a musician
contractor to supply the number and type of musicians
necessary for the particular musical production to be
presented at the Theatre. Klingberg's activities in this
regard in the production of a tape recording for use in
the musical "The Student Prince" to be staged at the
Theatre in April 19834 provides the predicate for Re-
spondent's actions against Klingberg which is the basis of
the complaint herein. While Klingberg was a member of
a Local of the International, neither of Respondents rep-
resented any of the Theatre's employees.
In early April, in preparation for the production of
"The Student Prince" by the Theatre, having determined
budget limitations for making prerecorded tapes through
discussions with Jan McArt, a partner in the Theatre and
an executive producer of the • Theatre, Klingberg ar-
ranged a recording session at a recording' studio then
known as Audio Image Studios. He contacted Robert
Rodriguez, a musician contractor, to provide the neces-
sary musicians for the recording session. It. was the, first
time.Klingberg had.used Rodriguez as musician contrac-
tor. The testimony of Klingberg and Rodriguez, who
also testified herein, is in agreement that the two dis-
cussed the number of musicians that' Klingberg would
use for the taping session, the type- of instruments re-
quired, whether certain musicians would be required to
"double up" and play more than one instrument, the
length of the recording session, and any cost incidental
to cartage of certain musical instruments. It is undisputed
that Klingberg did not specify any particular musicians
to Rodriguez by name. However, when Rodriguez men-
tioned two harpists among his list of available musicians,
Klingberg did state his preference for one of those names
over the other. A flat rate for production of all the' musi-
cians for the session was agreed on between Klingberg
and Rodriguez with specific provisions for-any additional
costs as a result of overtime beyond the- originally esti-
mated time required to complete' the recording. Kling-
berg's only specified condition for the musicians to-be
used for the session was that they be able to "sight read"
music. '
. The, recording session was held on April 8, 1983.
Klingberg, the only representative' of the Theatre at the
taping session, directed the musicians in'their seating ar-'
rangements and conducted the musicians., during the
taping session. Through -his conducting of the music,
Klingberg articulated retards, crescendos, staccatos, and
4 All dates hereinafter are in 1983 unless otherwise stated
tempos 'and generally gave his artistic interpretation to
the music in the interest of the production for the Thea-
tre. At times Klingberg demonstrated, through the use of
a piano, certain effects he wanted to achieve. In keeping
with a previously established understanding with Rodri-
guez, Klingberg granted d-a specified- amount of time for
breaks during the recording session but personally deter-
mined exactly when the breaks would be taken. Al-
though Klingberg had initially determined that 3 hours
would be. sufficient for the recording session, during the
session he determined that an additional hour would be
necessary and thus went into 1 hour of overtime. Beyond
the actual recording of music, Klingberg's responsibilities
at the studio extended to editing and mixing of the music
recorded.,
At the conclusion of the recording session, Rodriguez
was paid in cash and he, in turn, paid the musicians di-
rectly by check. It is undisputed that the arrangement
between: Klingberg and Rodriguez did not provide for
any type of-withholdings from the pay of the musicians
and it is clear that the Theatre made no such withhold-
ings. Moreover, it appears that the Theatre made no
withholdings for any musicians employed by it at the
Theatre itself. Such musicians at the Theatre are normal-
ly utilized either in the Theatre's cocktail lounge or for
show rehearsals. They are always paid in cash. The re-
hearsal musician, usually a pianist, is generally hired and
used on' a day-to-day basis. -
Following completion of the recording, Klingberg uti-
lized the recording for rehearsal of "The Student
Prince" production as well as for the actual production.
The production opened on April 42 and ran for a period
of about 9 weeks. -
On April 20, 1983, Gerald C. Storm, trustee of Re-
spondent Local, filed a charge with Respondent Interna-
tional alleging violations of article 22, sections 1, 2, and
4, and article 13, section 26, of the bylaws of the Interna-
tional by Klingberg 5 The charges were based on Kling'
berg's employment at the April.8 recording session at the
Audio Image . Studio Klingberg' was advised of the
charges by J. Martin Emerson, secretary-treasurer of Re-
spondent International, by letter dated April 27, 1983.
Emerson's letter offered Klingberg•an opportunity to re-
spond and he did so by a letter dated June 3, 1983, in
which he contended that he was a supervisor and that
any effort to discipline him violated the Act. Storm filed
,-5 Art 22, sec 1, prohibited members of the Union from engagements
or employment in making sound tracks for recordings unless the person,
firm, or corporation providing the engagement or employment "shall
have previously entered into a written agreement with the Federation re-
lating thereto " Sec -2 provided that members were required to report
any employment or engagement which would result in the production of
recordings to the Union in whose jurisdiction the engagement for em-
ployment was scheduled to 'take place Sec 3(a) provided that no
member could perform services "for the-.purpose of producing,' editing,
or dubbing recorded music except where expressly authorized andi cov-
ered by a contract with the Federation or when expressly authorized by
the Federation " Art 13, sec 26, provided that "no member of the Fed-
eration shall perform in any establishment which uses, or permits the use
of, music reproduced on records, transcriptions, tapes, wires, or any type
of mechanical or electronic device as background for, accompaniment of,
or in connection with any live performance (variety or musical), except
with the explicit permission of, and on such conditions as may 'be im-
posed by the Federation " .
- MUSICIANS (ROYAL PALM THEATRE) 679
a rebuttal with Respondent International dated -June 13
to which Klingberg replied by letter dated July 12. • In
his July letter, he reemphasized his supervisory status
and his contention that the effort- to discipline him was
unlawful.,
On March 4, 1984, Klingberg was advised by Emerson
that Respondent international's executive board had
found him guilty of violation of article 22, section 1,- of
the bylaws and fined him. $450. In the same communica-
tion, Klingberg was advised that the other allegations of
the charge by Respondent Local had been dismissed.
Klingberg • was further advised that unless the fine was
paid by April 2, 1984, his name would be.suspended
from the.membership list and that a reinstatement fee
might be exacted for any subsequent reinstatement.
B. Arguments and Conclusions
1. The 10(b)' issue
-Respondents' initial defense is an affirmative one pre-
mised on the argument that the charge was untimely and
that the complaint was therefore precluded under Sec-
tion 10(b) of the Act. In this regard Respondents con-
tend that the board's decision in Postal Service Marina
Center, 271 NLRB 397 (1984), controls here. In the cited
case' the Board, reversing precedent which had not, re-
ceived court enforcement, 6 held that the 10(b) period
runs 'from the time an employee receives unequivocal
notice of an adverse employment action rather than from
the' time the adverse action becomes effective. Thus, a
charge is untimely if filed more than 6 months after
notice by an employer to an employee that the employee
will be discharged on a date certain even if the charge is
filed within 6 months from the date of the discharge. Re-
spondents, by extension of this holding, argue here that
the 10(b) period began to run when Klingberg received
notice about April 27, 1983, of the charges filed against
him by the Local and not on the date' that he received
notice, about March 2, 1984, of the fine imposed on him
as a result of the Local's charges. '
The General Counsel- argues, in effect, that 'the ration-
ale in Postal-Service, supra, does not extend to cases in-
volving union discipline, and, alternatively, that t "un-
equivocal notice of adverse action" was not received by
Klingberg until he received word of the fine. The 'charge
was clearly timely with respect to the fine 's imposition
and the finding of a violation based on the fine is not
precluded under Section 10(b), according to the General
Counsel.-The Charging • Party's argument on this issue is
in accord with that of the General Counsel.
I concur in the position of the General, Counsel. I find
that Postal -Service, supra, is distinguishable. That case
was made applicable only to situations where the opera-
tive decision to discharge-an employee which is the basis
for an alleged -,violation of the Act is made , and an-
nounced in advance of a specific date for effectuation of
6 Roman Catholic Diocese of Brooklyn, 222 NLRB 1052 (1976), ,enf
denied in relevant part sub nom Nazareth Regional High School v NLRB,
549 F 2d 873 (2d Cir 1977), California School of Professional Psychology,
227 NLRB 1657 (1977), enf denied 583 F 2d 1099 (9th Cir 1978). See
also Mack Trucks,'230 NLRB 993 (1977), enfd .573 F 2d 1302 (3d Cir
1978), cert denied 439 U S. 825 (1978) - •
the decision. In that situation, it is appropriate to "focus
on the date of the unlawful act, rather than the date its
consequences become effective." In the instant case, the
filing of the internal union charges against Klingberg
may have been independently violative- had a timely
charge been filed but, unlike the situation contemplated
in Postal Service, it cannot be said that the imposition of
the fine was based on an operative decision made and an-
nounced outside the 10(b) period. The fine cannot -be
viewed-as a delayed but inevitable consequence of the in-
ternal union charges. Certain of the charges filed against
Klingberg were dismissed by the International's execu-
tive board. The imposition of the fine was- not simply a
benign act. Rather, imposition of the fine, although a
consequence of a charge, constituted an independent
action giving force to the charge. In addition, the Board
in Postal Service limited its application to the facts before
it and specifically declined to "consider or discuss what,
if any, implications it may have in contexts not before
us." Accordingly, it-cannot-be concluded that the Board
sought to ' overrule prior' Board and court law in union
discipline cases which holds'that the 10(b) period does
not begin to run until notice to the affected individual
that a fine has been imposed 'and has become finally ef-
fective. See Musicians Local 66 (Civic Music Assn.), 207
NLRB 647, 649 (1973), enf. denied on other grounds 514
F.2d 988 (2d Cir. 1975); Carpenters New Mexico Council
(A. S. Horner), 176. NLRB 797, 799 (1969), enfd.' 454
F.2d 1116 (10th Cir. 1972); Longshoremen ILWU Local
30 (U. S. Borax (jorp.), 223-NLRB 1257 (1976), enfd. 549
F.2d 698 (9th Cir. 1977). Indeed, that the Board did not
intend to depart from the principles of these cases in
Postal Service is evidenced by the fact that the court's de-
cision in U. S. Borax was cited in Postal Service as sup-
portive of the result reached there. I, therefore, conclude
that the notice to Klingberg of the imposition of.the fine
initiated the running of a new 10(b) period independent
of any 10(b) period which may, have begun based on the
Local's institution o£ internal union charges against
Klingberg. Accordingly, I find the charge. was clearly
timely under Section 10(b) with respect to the notice of
the imposition of the fine. On the other hand, to the
extent ,-that- the complaint. independently alleges that the
filing, and notice to. Klingberg of the internal union
charges was unlawful, I find, in agreement with the con-
tention of. Respondents, - that the charge was' untimely
since it was, filed, almost a year after those- events.
The, Local makes the. further; argument that it may not
be. held responsible in. this, case -for= its actions, since .the
internal charges filed against -Klingberg :were filed by. the
Local's'. trustee. during.' the- period : from .. November- 9,
1982,• to December. 5,, 1983, .when the Local was,under
trusteeship. As I concluded above,, however, the applica-
tion .of Section 10(b).precludes the finding of a violation
based, on the Local's. filing-of. the charges -against Kling-
berg , in any _ event. r Nevertheless, - the Local- may. not
escape. responsibility., for ' imposition • of the- fine because
the action which- resulted in -the fine was maintained- by
the Local and the fine was imposed after the trusteeship
terminated, all within the 10(b) period. The record pro-
vides no basis for concluding that the Local (assuming,
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arguendo, that it was in fact and law not responsible by
virtue of the trusteeship imposed upon it) was powerless
to withdraw the charges-against Klingberg or otherwise
preclude the imposition • of the fine based upon such
charges after the trusteeship was terminated. According-
ly, I find no merit to the Local's defense in this regard.
2. The supervisory issue
Section 8(b)(1)(B) of the Act makes it^ an unfair, labor
practice for a labor organization to restrain or coerce an
employer in the selection of its representatives for the
purposes of collective - bargaining or the adjustment of
grievances . On the merits of the alleged violation here,
the General Counsel argues that Klingberg was at all
times material a supervisor within the meaning of the
Act and a representative of. the Theatre for collective
bargaining and grievance adjustment within the meaning
of Section 8(b)(1)(B). - Countering , an argument an-
nounced at hearing by Respondents that , the musicians
utilized in, the April 8 -taping sessions were independent
contractors , the General Counsel argues that such musi-
cians ' were employees under Klingberg 's supervision.
And assuming , arguendo , that they were not , the Gener-
al Counsel asserts that a finding of a violation - is - not
thereby precluded because Respondents' actions against
Klingberg would nevertheless impact upon his superviso-
ry duties at the Theatre.
Further , with regard to Klingberg 's supervisory status;
the General Counsel argues that in conducting at the
taping session 'Klingberg was performing a component
part of his supervisory duties for the Theatre and was
thus acting in a 'supervisory capacity . Alternatively, it is
argued that even if Klingberg was not performing super-
visory 'work at the taping session , such work consumed
only a 'minimal amount of his worktime viewed in the
context of the overall time Klingberg spent in superviso-
ry duties . Examination of Klingberg 's overall functions,
the General Counsel contends, shows that Klingberg's'
work in conducting at- the' taping session was minimal
and should not operate to preclude ' the application of
Section ' 8(b)(1)(B) -here : The - Charging- Party's' brief
largely parallels the arguments of the General Counsel.
Respondents' initial defense on the merits of the' case
sub- judice is based on the argument -that ;Klingberg did
not perform supervisory work for the "Theatre at the
taping session on April 8 . Here , Respondents -rely''essen-
tially on two contentions : First , in this ' regard , Respond=
ents contend that the musicians were- independent Con;.
traotors • and` not employees • of the Theatre -so, that Kling-
berg had no employees to supervise at the taping session
and 'could not have been acting in a supervisory capac-
ity: Secondly," Respondents argue • that , in any event, in
conducting' the music during r the' taping 'session-,.- Kling--
berg was doing rank-and-file - work ,,-. not supervisory -
work . ' Since , performance 'of such work . provided the
basis for Klingberg 's fine ; the. fine did not result frdm his, t
supervisory work and, thus, ., could not have,. in any- way,
impacted on his supervisory functions . . ' ,,c . - .
Respondents - do not argue that Klingberg was 'not -a
statutory supervisor in regard to his work performed at
the Theatre . The record fully substantiates the conclu-
sion , which I hereby'reach ,- that Klingberg -- was a : super-
visor within the meaning of Section 2(11) of the Act-
which defines the term supervisor. Thus, -McArt testified
Klingberg.. hired actors, actresses, and musicians at the
Theatre. He set their pay within certain limits and sched-
uled their hours of work. He had complete authority to
fire employees, reprimand them, grant them time-off, and
replace them-if necessary according to McArt's uncon-
tradicted testimony which I credit. F_ urther,'according to
McArt, Klingberg had authority to adjust employee
complaints. - -
Whether Klingberg was performing in a supervisory
function in the taping session is another issue. If his work
at such session was limited to waving a baton before a
group of musicians some doubt is raised as to whether he
was performing supervisory work. In several representa-
tion case decisions, the Board has included conductors
and leaders of musicians in bargaining units. See Alliance
of Television Producers, 126 NLRB 54 (1960); Batjac En-
terprises, 126 NLRB 1281 (1960); Cavendish Record Mfg.
Co., 124 NLRB 1161 (1959). On the other hand, such de-
cisions do, not necessarily dictate that all individuals
bearing the title "conductor" or "band leaders" perform
nonsupervisory work. And in two other cases cited. in
the General Counsel's brief, Independent Motion Picture
Producers Assn., 123 NLRB 1942 (1,959), and Edward .
Small Productions, 127 NLRB 283 (1960), the Board per-
mitted conductors and leaders to vote in a representation
election subject to challenge because there was an issue
of the supervisory status of the persons occupying those
positions . However , in neither case did the Board ,de-
scribe the duties of the conductors involved or suggest
what factors it might consider significant in assessing
their supervisory status. Conductors and leaders are
somewhat analogous to directors and choreographers
whose primary, ,function concerns artistic direction. In
Musical Theatre Assn., 221 NLRB 872 (1975), the Board
observed that the artistic direction and instruction of per-
formers by a . director or choreographer is in the, nature
of professional direction and is not to be equated with
the exercise of supervisory authority in the. employer's;
interest. By analogy , it must be concluded that some au-
thority-beyond that exercised by-a conductor in his "pro-
fessional artistic direction " is necessary to, constitute him.
a supervisor. . .
-In the recording session, Klingberg, exercised, all the
attributes of professional musical direction , including es-
tablishing the seating arrangements , the selection of the
types of instruments ,to be used, and the demonstration of
desired methods to obtain a result consistent with his ar-
tistic interpretation of the music . But his functions went
beyond simply, conducting, leading; or waving a _baton. ,
They extended to scheduling the session, determining the
hours to, be worked, deciding whether - additional time,
i.e.; • overtime, was necessary .and would be paid for by
the Theatre, and deciding the overall- amount that, the
Theatre; would 'underwrite for the session. His direction
and, involvement extended. to direction of the. technical
aspects of the recording process including mixing and
editing. Klingberg was present at all times during the
session and, in fact, was 'the. only representative of the
Theatre present. No other persons engaged in .any kind
MUSICIANS (ROYAL PALM THEATRE)
of supervision or direction. It is , therefore, evident that
the entire session and its end product was subject to
Klingberg's independent discretion and artistic taste. At
no time before, after, or during the session did he di-
vorce himself from the authority he possessed as a super-
visor and representative for the Theatre.
Respondents would equate Klingberg's work in the
taping session to the work of an individual employed in
the building and construction industry who may work as
a Section 2(11) supervisor on one job but as a rank-and-
file employee on another, even for the same employer. In
making this argument, Respondents rely on the Board's
decision in Electrical Workers IBEW Local 340 (Nutter,
Inc.), 271 NLRB 995 (1984). There, in considering an
8(b)(1)(B) allegation, the Board found that a union fine
against a supervisor while working for 29 percent of his
worktime, as a rank-and-file employee for his employer
on one job with the balance of his time spent in a super-
visory capacity on another job for the employer was not
unlawful. Notwithstanding the fact that the supervisor
continued to receive his foreman's pay while performing
the rank-and-file work, it was clear in Nutter that the in-
dividual had no supervisory authority at the job location
where he performed the rank-and-file work. The union's
action against the supervisor was found not unlawful be-
cause such action was- not imposed for any work of the
supervisor on a jobsite other than the one where he per-
formed the rank-and-file work. I find the Nutter case in-
apposite. In Nutter, there was no functional integration
between the work performed by the supervisor on the
two jobs. There is in the instant case. In Nutter the su-
pervisor was working in the rank-and-file capacity to
"keep a paycheck coming in."_ The performance - of the
rank-and-file work had no relationship to the individual's
functions at the jobsite where he held supervisory status:
In the case sub judice, Klingberg's work at the taping
session was directly related to his supervisory functions
at the Theatre. In -fact, such work was attendant to and
part of such supervisory functions. Moreover, in the
Nutter case, the employer had other supervisors on, the
jobsite where the fined supervisor was performing rank-
and-file work, and these supervisors could fulfill the re-
sponsibilities in the interest of,the employer. Here, how-
ever, Klingberg was the only employer representative at
the taping session and , as such, he necessarily had re-
sponsibilities beyond performance of rank-and-file, work
even if one concludes that Klingberg performed rank-
and-file work in conducting the musicians. Finally, a
quantitative distinction may be drawn between the
Nutter case and the instant case , for there the supervisor
admittedly spent 29 percent of his time on the nonsuper-
visory job. Here, however, although it is difficult to
glean from the record on a percentage basis the exact
time Klingberg spent on the recording session as com-
pared with his other work, the estimate set forth in the
General . Counsel's brief of 3 percent cannot be far
wrong, and I accept it as-a general approximation. Thus,
assuming again that Klingberg did rank-and-file work in
the recording session , it was sufficiently incidental and
insubstantial as, to. have no effect on his supervisory
status for 8(b)(1)(B) purposes.
681
I conclude that Nutter in no way detracts from a con-
clusion here that Klingberg acted as a supervisor in the
recording session. Rather, I find Klingberg's authority as
a supervisor for the Theatre, which is.manifest, extended
into his conduct of the session.
Considering next Respondents' argument that Kling-
berg did not act as a supervisor at the recording session
because the musicians were independent contractors
rather than employees, the parties appear to acknowl-
edge that the Board applies a "right to control" test in
determining whether individuals are employees or inde-
pendent contractors This test is based upon common
law principles of agency. NLRB v. United Insurance Co.,
390 U.S. 254 (1968). The test, as recently set forth in
Daily Mining Gazette, 273 NLRB 350, 351-352 (1984),
"provides that where the one for whom a service is per-
formed retains the right to control the manner and means
by which the desired result is accomplished, the person
performing the service is an employee, but if control is
reserved only over the end result, the person performing
the service is an independent contractor." In deciding
the issue, each case must turn on its own facts. A. S.
Abell Publishing Co., 270 NLRB 1200 (1984).
In arguing their side of this issue , Respondents assert
that the musicians utilized were picked on their ability to
sight-read music so that they could rely on their own
skill and ability so that little direction would be neces-
sary. They further point to the fact that the musicians
were hired through a contractor, that they were hired
for only a few hours, that they were not paid directly by
the Theatre, and that they were not subject to withhold-
ings and received no fringe benefits. To be sure, such
factors,, do suggest independent contractor status. The
General Counsel would discount these factors as insignif-
icant and would emphasize instead Klingberg's "absolute
control over the musicians in the recording session to
the extent of directing not only the result to be achieved
but also the details in producing the result.
The issue presented is -a close one. Research has dis-
closed no cases exactly.on all fours although a number of
cases have found musicians in circumstances somewhat
different from those of the instant case to be independent
contractors. ,Thus, in Musicians Local 16 (Bow & Arrow
Manor), 206 NLRB 581 (1973), musicians employed by
an orchestra leader who contracted the services of the
orchestra to a restaurant were found to be independent
contractors rather than employees of the restaurant even
though the orchestra had been used by the restaurant for
several . years, and the restaurant, which reserved . the
right to, set and change hours, of operation, had directed
that certain kinds of music not be played, that the musi-
cians maintain a certain, appearance, and that certain
standards of behavior be followed.
In American Broadcasting Co., 117 NLRB 13 (1957),
musical. composers .were found to be independent-, con-
tractors because the dictates of their work related princi-
pally to the effects to be produced by the music, and the
company -for which the work was done did not control
the manner in which the effects were to be achieved.
Similarly, in Alamo .Co., 129. NLRB 1093. (1960), musi-
cians utilized by a company which had contracted with
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
producers of- a motion picture to score the picture were
held to be independent contractors and not employees of
the producers because all details of the score were left to
the 'contracting: company. On the other hand; "lounge
musicians" were found by the Board to be employees
rather than independent contractors in Nevada-Resort
Assn., 250 NLRB 626 (1980), where considerable empha-
sis leading to this- result was placed on the existence of
"true, control" over the- exercise of the means of per-
formance of the musicians with less emphasis on manner
of payment and the absence of instances of overt control
of the musicians as opposed to the existence- of the right
to control. In some cases the issue of.employee status, of
musicians is largely determined by the existence of serv-
ice contracts signed by the producer of the music even
though the musicians may be more directly employed.by
a composer/conductor enterprise pursuant to an agree-
ment with the producer. See Reno Musicians Local 368,
170 NLRB 271 (1968); Edward Small Productions, 127
NLRB 283 (1960). See also Independent Motion Picture
Producers, supra.
The parties in their briefs herein have cited other cases
involving independent contractor issues related not to
musicians but to individuals in the entertainment indus-
try. See Radio City Music Hall v. U.S., 135 F.2d 715 (2d
Cir. 1943); Comedy Store, 265 NLRB 1422 (1982); Centu-
ry Broadcasting Corp., 198 NLRB 923 (1972); Strand Art
Theatre, 184 NLRB 667 (1970). The decisions reached in
these cases, -as well as those involving', musicians, turn
again on the existence of control by the ultimate user of
the services or product over the individuals claimed to
be either individual contractors or employees. '
Considering the instant' case in light of the foregoing
precedent, I am persuaded, as urged by 'the General
Counsel, that the musicians used in the recording session
were employees" of the Theatre, not independent contrac-
tors.- That the individual musicians were not selected by
Klingberg, that they were paid through Rodriguez, the
contractor, with' no withholdings by the Theatre, and
that'they were utilized for only a few hours, with no real
likelihood of future use, are` significant factors detracting
from their employee status. These' factors, indicate a lack
of control by the Theatre over the means by which the
recorded music was to be produced. However, in 'my
view, these factors are outweighed by Klingberg 's selec-
tion of the number and type of iiistruments to be used,
his selection of the time and place for the session, his se-
lection of music to be played;'his direction of every note
played by 'the musicians, his demonstration of how the.
music- was 4 to'be played, his decision regarding the'time
necessary' for rehearsal 'before actual-recording, his deci-
sion-regarding the necessity for additional time , his'deci-
sionk^ regarding 'seating arrangements of 'the musicians,
and his decisions regarding the time-when -breaks were to
be • taken; These factors- all fully establish that he had
complete 'control 'over not only the recording to be' pro=
diiced but'the rnanner'and means by which it would be
produced. See Reno Musicians, supra. In • producing j the
recording; the musicians were under the continuous.su-
pervision and-exercised control of Klingberg and subject
to ,his complete'. discretion and artistic interpretation and
-taste . It is "difficult to perceive 'how Klingberg could
have exercised more control over the manner and means
of making the recording. I find then that the musicians in _
the recording session were employees. To hold otherwise
would render meaningless the "right to control" test.
- Considering the foregoing, I conclude that Klingberg
was a supervisor within the meaning of-the Act in con-
ducting the recording session and directing all phases of
the taped music. -
3. The restraint or coercion
Respondents, citing Florida Power & Light v. Electrical
Workers IBEW Local 641, 417 U.S. 790 (1974); and
American Broadcasting Cos. v. Writers Guild, 437 U.S. 411
(1978), argue that the discipline imposed on Klingberg
did not constitute restraint or coercion against the Thea-
tre in violation of Section 8(b)(1)(B) because it was based
on Klingberg's work in a nonsupeivisory capacity and it
had no effect on any collective bargaining or grievance
handling tasks. The General Counsel, also citing Ameri-
can Broadcasting Cos., argues to the contrary and asserts
that Klingberg's fine might'adversely impact upon Kling-
berg's functions at the Theatre in connection with griev-
ance or complaint handling of actor employees some of
whom are represented by Actors Equity.
I have already concluded above that Klingberg was
acting as a supervisor for the Theatre during the record-
ing session and was - not doing rank-and-file work. In
view of that conclusion, as well as the fact that he also
worked in a supervisory capacity at the Theatre and in
fact handled employee complaints or grievances' at the
Theatre, I reach the further conclusion that Klingberg
was an 'employer representative within the purview of
Section '8(b)(1)(B).8 It follows, and I. find and conclude,
that the fining of Klingberg for conduct in the perform-
ance of his supervisory duties for the Employer had'a
tendency to restrain or coerce the Theatre within the
intent of Section 8(b)(1)(B).
Respondents argue finally that they did not violate
Section 8(b)(1)(B) because -they did not represent em-
ployees,of the Theatre and no evidence was produced to
establish' that they had a desire to represent any of the
Theatre's employees. In taking this position, Respondents
rely on NLRB v. ' Electrical Workers IBEW Local 73
(Chewelah Contractors), 621 F.2d 1035 (9th Cir. 1980),
denying enf. 231 NLRB 809 (1977). In the Board's deci-
sion in the cited case , the Board found a violation of
7 In Norwalk Typographical 529 (Hour'Publrshtng), 241 NLRB 310, 315
(1979), the Board held that "the distinction between contractual griev-
ances and personal grievances 'has no relevance to the construction of
the broad term "grievances " as used in Sections 2(11) and 8(b)(1)(B),
and that it must be uniformly construed as including both personal
grievances and contractual grievances
8 Even if there were no evidence herein that Klingberg'had grievance
handling functions , the same result would be dictated by application of
the Board 's "reservoir doctrine" which holds that all supervisors within
the meaning of Sec 2(11) of the-Act are representatives of the employer
within the meaning of Sec 8 (b)(1)(B) even in the absence of evidence
that the supervisor in'issue is vested with specific authority to act for the
employer in collective bargaining or grievance adjustment See Sheetme-
tal Workers Local 85 (Suburban Sheet Metal), 273 NLRB 523 (1985),
Teamsters Local 296 (Northwest Publications), 263 NLRB 778, 779 fn 6
(1982), Carpenters Wisconsin River Valley Council (Skippy Enterprises), 211
NLRB 222 (1974)
MUSICIANS (ROYAL PALM THEATRE)
Section 8(b)(1)(B) based on a union 's discipline of a su-
pervisor-member for working for a company not having
a contract with the union. The effect of the- discipline,
the Board concluded, was to altogether deprive the
Company of its grievance adjuster or bargaining repre-
sentative The court refused to enforce in the absence of
a showing that the union either represented the compa-
ny's employees or even had _a desire to represent them.,
The Court reasoned" that without such a showing, there
was no incentive for the union to either influence the
company's choice of bargaining representative • or affect
the supervisor's loyalty to the company.
The Board has not to date accepted and applied - the
Court's reasoning -in Chewelah in subsequent cases in-
volving Section 8(b)(1)(B). It thus still appears to be
Board policy to find an 8(b)(1)(B) violation in cases
where a union's action would tend to deprive an employ-
er of a collective-bargaining representative or grievance
adjuster without regard to whether the union represents
or desires to represent the employer's employees See
Plumbers Local 364 (West Coast Contractors), 254 NLRB
1122 (1981). With due respect to the court in Chewelah, I
am bound to follow Board precedent until reversed by
the Board or the Supreme Court. Consolidated Casinos
Corp, 266 NLRB 988 (1983); Lenz Co., 153 NLRB 1399
(1965); Iowa Beef Packers, 144 NLRB 615 (1963)
Considering all the foregoing, I conclude that Re-
spondents, by maintaining charges against Klingberg and
by fining him for performing supervisory work for the
Theatre, violated Section 8(b)(1)(B) of the Act.
CONCLUSIONS OF LAW
1. Respondents are each labor organizations within the
meaning of Section 2(5) of the Act.
2. Royal Palm Dinner Theatre, Ltd. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. John Klingberg is, and has been at all times material
herein, a supervisor within the meaning of Section 2(11)
of the Act selected by Royal Palm Dinner Theatre, Ltd.
for the purpose, inter alia, of collective bargaining and
the adjustment of grievances within the meaning of Sec-
tion 8(b)(1)(B) of the Act.
4. By maintaining charges against John Klingberg and
fining him, Respondents restrained and coerced Royal
Palm Dinner Theatre, Ltd. in the selection and retention
of its representatives for the purposes of collective bar-
gaining and the adjustment of grievances, and thereby
has engaged in unfair labor practices within the meaning
of Section 8(b)(1)(B) of the Act.
5 -The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. -
THE REMEDY
- Having found that Respondents engaged in the above
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act More par-
ticularly, having, found that Respondents unlawfully
fined John Klingberg, I shall recommend that Respond-
683
ents be ordered to rescind the fine and to remove all
records of the disciplinary action and fine. The notice to
Klingberg of the fine being levied carried with it a threat
of suspension from membership in the absence of pay-
ment of the fine. The record does not establish whether
the fine was paid or whether Klingberg was suspended.
Accordingly, I shall recommend an Order encompassing
the eventuality of membership suspension as well as par-
tial fine payment.
On these findings of fact and conclusions of law and,
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondents, American Federation of Musicians
and Miami Federation of Musicians, Local 655, Miami,
Florida, their officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining and coercing Royal Palm Dinner Thea-
tre, Ltd. in the selection of its representatives for the
purpose of collective bargaining or the adjustment of
grievances
(b) Maintaining charges against , fining, or otherwise
disciplining John Klingberg or any other supervisor of
Royal Palm Dinner Theatre, Ltd. for acts performed in
execution of their supervisory duties for the Theatre.
(c) In any like or related manner restraining or coerc-
ing Royal Palm Dinner Theatre Center, Ltd. in the se-
lection of its representative for the purpose of collective
bargaining or the adjustment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and remove all records or charges and
fines based thereon levied against John Klingberg for
performing supervisory duties while employed as a su-
pervisor for Royal Palm Dinner Theatre, Ltd., and reim-
burse Klingberg, with interest, for any sum paid toward
a fine
(b) Restore John Klingberg to membership in good
standing with all attendant rights and privileges.
(c) Notify John Klingberg in writing that they have
taken the action required in paragraphs 2(a) and (b)
above.
(d) Post at their offices and any place where their
meetings are customarily held copies of the attached
notice marked "Appendix."10 Copies of the notice, on
forms provided by the Regional Director for Region ,12,
after being signed by-the Respondents' authorized repre-
sentative, shall be posted by the Respondents , immediate-
ly upon receipt and maintained for, 60 1 consecutive days
in conspicuous places including all places where notices
to members are customarily, posted. Reasonable steps
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be, deemed waived for all pur-
poses '
10 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals- Enforcing an Order of the Natidn-
al Labor Relations Board " -
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be taken by the Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
,(e) Furnish the Regional Director for Region 12
signed copies of such notices for posting by Royal Palm
Dinner Theatre, Ltd., if willing, at its Boca Raton, Flori-
da place of business where notices to employees are cus-
tomarily"posted.
(f) Notify the Regional- Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor-Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to' post and abide by-this-notice. -
WE WILL NOT, restrain or coerce Royal Palm Dinner
Theatre, Ltd. in the selection of its representatives for
the purpose of collective bargaining or the adjustment of
grievances by maintaining charges against, fining, or oth-
erwise disciplining supervisors for acts .performed in exe-
cution of their duties for the Theatre.
WE WILL NOT in any like or related manner restrain or
coerce Royal Palm Dinner Theatre, Ltd. in the selection
of its representatives for the purpose of collective bar-
gaining or the adjustment of grievances.
WE WILL rescind and 'expunge all records of charges
and fines based thereon levied against John Klingberg
for performing supervisory duties while employed as a
supervisor by.Royal Palm Dinner Theatre, Ltd., and WE
WILL reimburse John Klingberg, with interest, for any
amounts paid on such a fine, restore him to membership
in good standing with all- attendant rights and privileges,
and advise him in writing that this action has been taken.
AMERICAN FEDERATION OF MUSICIANS;
MIAMI FEDERATION OF MUSICIANS, LOCAL
`_ •655