Verve Records, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1960

127 N.L.R.B. 1045 (N.L.R.B. 1960)

VERVE RECORDS, INC. 1045
Verve Records , Inc. and Francis L. (Joe ) Howard and Musicians
Mutual Protective Association , Local 47, American Federation
of Musicians of the United States and Canada, AFL-CIO.'
Cases Nos. 21-CA-3463 and 21-CB-1299. June 7, 1960
DECISION AND ORDER
On July 27, 1959, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in any unfair labor practice alleged
in the complaint and recommending that the complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, Francis L. (Joe) Howard, the Charging Party, and the
General Counsel filed exceptions to the Intermediate Report, and the
General Counsel filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations contained in the Intermediate Report only to the extent
that they are consistent herewith.
The facts, essentially as found by the Trial Examiner and as in-
dicated in the record, are as follows.
In February 1959, Verve Records, Inc., a music recording company,
herein called Verve, made an arrangement with Russ Garcia, an
orchestra leader, for the production of a musical recording. Garcia
selected a "contractor," David Klein, a member of the Union, and
furnished him a list of musicians whom Garcia desired to play the
music to be recorded by Verve. The name of Howard, the Charging
Party, appeared on the list. Klein's name was also on the list as
"orchestra manager." 2 Klein's office 3 notified the musicians of their
selection to make a Verve recording to take place on February 21, 1959,
and furnished a list of the musicians' names to the Union. At the time
of such notification by telephone, Howard indicated his "availability"
for the j ob.
At all times material hereto, the Union had a quota system, adopted
by its membership, regulating the number of recording sessions which
1 Herein called the Union
2 The record does not disclose any other details as to the relationship between the leader
and the contractor. The function of a union contractor, such as Klein, is to make the
hiring arrangements for the musicians and to see that union requirements are met in
connection with the recording of the musical composition.
3 Klein was ill during the period in question and died on February 21, 1959, the date on
which the recording in question was made. His secretary acted in his behalf during this
period
127 NLRB No. 129.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rcould be played during any week by its members." Under the quota
system, Howard, as an otherwise regularly employed musician, was
permitted to play two recording sessions each week. In order to assure
that its quota regulations are enforced, the Union required that a
contractor-member, such as Klein, submit to it 48 hours before a re-
cording session a list of musicians designated to play the recording
to determine whether the musicians involved are eligible for such
employment. It was in compliance with this rule that Klein submitted
the list to the Union.
On receipt of the list from Klein"s office, an official of the Union,
Ward Archer, who was in charge of administering the Union's quota
regulations, checked the names listed and discovered that Howard had
played two recording sessions in the week during which the Verve
recording session was scheduled, and that, if he was allowed to par-
ticipate in the Verve recording session, he would exceed the quota.
The Union promptly so notified Klein's office.,' Klein's office then told
Howard "that his name was being struck from the leader's list." Upon
being advised of this situation, Garcia selected another musician in
lieu of Howard and, on February 21, 1959, when the recording was
made, Howard did not participate in the recording session.'
4 All musicians involved herein including Howard and Garcia, as well as Klein, were
members of the Union.
'The record shows that, on February 20, 1959, the union representative called Klein's
office and told his secretary that "Joe Howard was over the quota for that particular
week and that [Klein] would have to take him off the Verve date for 'Mr. Garcia "
0 There appears in the record a contract, dated February 21, 19;19, which was admitted
in evidence without objection On a printed form prepared by the Union, it purports to
be a contract for the services of musicians between Verve, as "employer," and 18 musi-
cians, including a leader , whose names are listed therein as "employees ." The contract
provided, in pertinent part.
. That the employer hires the employees as musicians severally on the terms and
conditions below . The leader represents that the employees already designated have
agreed to be bound by said terms and conditions . Each employee yet to be chosen
shall be bound by said terms and conditions upon agreeing to accept his employment.
Each employee may enforce this agreement The employees severally agree to render
collectively to the employer services as musicians in the orchestra under the leader-
ship of Russ Garcia as follows :
Name and Address of Place of Employment
Date( s) of Employment
Hours of Employment :
Type of Engagement.
Capitol Towers
Hollywood, Cal
2/21/59
3 20 P M. to 6 •20 P.M
Russ Garcia Album
Recording for phonograph
records only
The contract further provided as follows :
If any employees have not been chosen upon the signing of this contract , the leader
shall , as agent for the employer and under his instructions , hire such persons and
any replacements as are required for persons who for any reason do not perform any
or all services The employer shall at all time have complete control over the serv-
ices of employees under this contract, and the leader shall, as agent for the employer,
enforce disciplinary measures for just cause, and carry out instructions as to selec-
tion and manner of performance.
The contract also contained a union -security provision and incorporated union bylaws,
rules, and regulations as part of the contract. However, the Union is not a party to the
contract. It purports to be signed for Verve by Garcia and for Garcia by Klein. It is
VERVE RECORDS, INC. 1047
The complaint alleged in substance that, on or about February 20,
1959, the Union violated Section 8(b) (1) (A) and (2) of the Act by
demanding that Verve terminate the employment of Howard by rea-
son of the fact that such employment was in violation of the Union's
quota system, and that Verve violated Section 8 (a) (1) and (3) of the
Act by terminating Howard's employment by reason of the Union's
aforesaid demand.
As indicated above, the Trial Examiner recommended dismissal of
the entire complaint. He found that Klein, as a union contractor,
acted as agent for both Verve and the Union. The Trial Examiner
further found, in substance, that, in acting for Verve, Klein was
not in a position to offer employment to Howard until after the list of
musicians selected to play had been submitted to, and approved by,
the Union and, until this occurred, there was no application for em-
ployment by Howard. The Trial Examiner reasoned that the tele-
phone call from Klein to Howard "was to determine his availability
and to put him on notice that, subject to clearance by the Union, he
was selected for the engagement," and that such "notification did not
and could not ripen into an actual offer of employment until after the
list had been submitted to the Union." Based essentially on his find-
ing that at no time did Howard achieve employee status, the Trial
Examiner concluded, in effect, that Verve did not discriminate against
Howard, and thus did not violate the Act. Relying on Columbia
Broadcasting, 119 NLRB 810, the Trial Examiner further concluded
that the Union, acting as an employment agency, did no more than
refuse to refer Howard for employment, and thus did not violate the
Act.
We do not agree. In our opinion, both Verve and the Union
violated the Act as alleged in the complaint.
Having been designated by Garcia, Verve's agent, to make arrange-
ments with designated musicians for playing at the recording, Klein
was, in effect, a subagent of Verve. We thus agree with the Trial
Examiner that Klein acted as an agent of Verve. However, we do
not agree with the Trial Examiner that Howard did not achieve em-
ployee status and could not be discriminated against in violation of
the Act. Garcia selected Howard as one of the 18 musicians to play
at Verve's recording session to be held on February 21, 1959. Klein
notified IToward that he had been so designated, and Howard informed
Klein that he, Howard, was available for the engagement. Under the
circumstances, we think it clear, and we find, that Verve's designation
of I-Toward for the engagement, through Garcia and Klein, and
not signed by the Union or any of the other musicians Although Howard's name
originally appeared on the contract form, it was thereafter deleted and the name of
another musician substituted Apart from the foiegoing, so far as appears, there was no
collective-bargaining contract between the Union and either Verve, Garcia, or Klein, and
there was no direct dealing between Howard and Verve.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard's statement of availability for the engagement, constituted an
offer and acceptance of employment, respectively, which established
an employment relationship between Howard and Verve within the
meaning of the Act. Moreover, even assuming that Howard thereby
achieved only the status of an applicant for employment, he was
thereby entitled to statutory protection against discrimination 7
In light of the foregoing, we do not agree with the Trial Examiner
that Columbia Broadcasting 8 is controlling here with respect to the
Union's liability. In that case, where the only respondent was a
union, the facts were as follows : CBS had been requesting the union
to supply stagehands under an oral nonexclusive hiring arrangement.
A union member, Kanaga, without applying to CBS, requested the
union to refer him to CBS for a job as a stagehand. The union re-
fused Kanaga's request because of his nonpayment of a fine. On these
facts, the Board dismissed a complaint, alleging a violation of Section
8 (b) (1) (A) and (2), against the union. There, unlike here, the union
took no step to influence CBS not to hire Kanaga. Here, the Union's
agent, Ward Archer, told Klein to remove Howard's name from the
list of musicians designated to play at the February 21 engagement.
There, unlike here, it was impossible to tell whether, if Kanaga had
applied to CBS, CBS would have refused to hire him without clear-
ance. Here, we are satisfied that Howard had been selected by the
employer for the job and would have had the work but for the
Union's veto.
It is unlawful for an employer to terminate the employment of an
employee, or to deny employment to an applicant therefor, because
he is not sponsored by a union." Here, because of the Union's demand,
based upon its quota system, that Howard not be employed on Febru-
ary 21, 1959, Verve terminated Howard's employment for the playing
engagement of February 21, 1959, or would have hired Howard for
that engagement but for the Union's demand. Discrimination aimed
at compelling obedience to union rules embodying a job-rotation prin-
ciple encourages membership in a labor organization.` Here, the
purpose of the Union in causing discrimination by Verve was to en-
courage union members to perform obligations or supposed obliga-
tions of membership, and such encouragement of union membership
was a natural and foreseeable consequence of Verve's discrimination
against Howard at the request of the Union.
Accordingly, we find that, by terminating Howard's employment
or by denying him employment because he lacked the endorsement of
7 Phelps Dodge Corp. v. N.L.R B., 313 U.S. 177.
8 The respondent in that case was International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United States and Canada, Local No 409.
9 Radio Officers' Union, etc (A. H. Bull Steamship Company) v. N L R B., 347 U S. 17;
Phelps Dodge Corp. v. N.L.R.B., cited footnote 7, supra.
10 Turner Construction Company, 110 NLRB 1860.
VERVE RECORDS, INC. 1049
the Union, Verve discriminated against Howard in violation of Sec-
tion 8(a) (3) and (1) of the Act; 11 that by asserting its opposition to
Howard's employment because of its job-quota system, the Union
attempted to and did cause Verve to violate Section 8(a) (3) ; and
that, by such conduct, the Union violated Section 8 (b) (2) and (1) (A)
of the Act.
Although properly served with a copy of the complaint and notice
of hearing thereon, Verve did not file an answer to the complaint.
Prior to the hearing herein, the General Counsel filed a "Motion for
Summary Judgment" against Verve, which was referred to the Trial
Examiner for disposition. Verve did not appear at the hearing. At
the hearing, the Trial Examiner reserved ruling on the General
Counsel's motion for summary judgment, and denied it in his Inter-
mediate Report because, in his opinion, the evidence established no
violation of the Act. Contrary thereto, we have found above that both
Verve and the Union violated the Act as alleged in the complaint.
In any event, Section 102.20 of the Board's Rules and Regulations,
Series 7, as amended, provided as follows :
The respondent shall, within 10 days from the service of the
complaint, file an answer thereto. The respondent shall specifi-
cally admit, deny, or explain each of the facts alleged in the
complaint, unless the respondent is without knowledge, in which
case the respondent shall so state, such statement operating as a
denial. All allegations in the complaint, if no answer is filed, or
any allegation in the complaint not specifically denied or explained
in an answer filed, unless the respondent shall state in the answer
that he is without knowledge, shall be deemed to be admitted to
be true and shall be so found by the Board, unless good cause to
the contrary is shown.
The notice of hearing served upon Verve specifically stated that
unless an answer was filed to the complaint within 10 days from the
service thereof, "all the allegations in the Consolidated Complaint
shall be deemed to be admitted to be true and may be so found by the
Board." Verve did not file an answer to the complaint within 10 days
from the service of the complaint, or at any other time. No good cause
to the contrary having been shown, in accordance with the rule set
forth above, the allegations in the complaint against Verve are deemed
to be admitted to be true, and we find that they are true. Accordingly,
independently of our findings and conclusions based on the evidence
in this proceeding, we find as true all the allegations of the complaint
against Verve.
"Member Bean does not reach and therefore does not pass on the merits of the case
to determine Verve's liability as he finds Verve responsible for the unfair labor practices
alleged in the complaint against it by reason of its failure to file an answer , as hereinafter
more fully set forth.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of the Respondent Employer, 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.
TIIE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, the Board will order them to cease and desist therefrom and
to take affirmative action designed to effectuate the policies of the Act.
It has been found that on or about February 21, 1959, the Respond-
ent Verve discriminated against Francis L. (Joe) Howard, thereby en-
couraging membership in the Respondent Union and interfering with,
restraining, and coercing Howard in the exercise of rights guaranteed
by the Act.
Having found that both Respondents are responsible for the dis-
crimination against Howard, the Board will order that they jointly
and severally make him whole for any loss of pay he may have
suffered by payment to him of a sum of money equal to the amount
he would have earned during the period of discrimination against him,
less his net earnings during that period." As the discrimination in
this case was limited to the playing engagement of February 21,
1959, we shall not order the Respondent Verve to offer reinstatement
or employment to Howard. However, we shall require that the Union
notify Verve in writing that the Union has no objection to future
employment of Howard. It will also be ordered that Verve make
available to the Board, upon request, payroll and other records to
facilitate the determination of backpay.
CONCLUSIONS OF LAw
1. Musicians Mutual Protective Association, Local 47, American
Federation of Musicians of the United States and Canada, AFI^-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Francis L. (Joe) Howard, thereby encouraging membership
in the Respondent Union, the Respondent Verve has engaged in and
is engaging in unfair labor practices within the meaning of Section
8(a) (3) of the Act.
3. By interfering with, restraining, and coercing Francis L. (Joe)
Howard in the exercise of rights guaranteed by Section 7 of the Act,
12 For the manner of computing net earnings, see Crosscti Znnnbei Compalty, 8 NLRB
440, 4913.
VERVE RECORDS, INC. 1051
the Respondent Verve has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. By causing the Respondent Verve to discriminate against Francis
L. (Joe) Howard in violation of Section 8(a) (3) of the Act, the
Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (2) of the Act.
5. By restraining and coercing Francis L. (Joe) Howard in the
exercise of the rights guaranteed in Section 7 of the Act, the Respond-
ent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent, Verve Records, -Inc., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Musicians Mutual Protective As-
sociation, Local 47, American Federation of Musicians of the United
States and Canada, AFL-CIO, or in any other labor organization of
its employees, by discharging employees or refusing to hire employees
unless they have been cleared or approved by the Respondent Union,
or by discrimination against them in any other manner in regard to
their hire or tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(b) In any other related manner interfering with, restraining, or
coercing its employees or prospective employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
by Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. 'Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to an
analysis of the amount of bac'kpay due in accordance with this Order.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'(b) Post at its place of business in Los Angeles, California, copies
-of the notice attached hereto marked "Appendix A." 13 Copies of the
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall be posted by the Respondent Verve immediately upon
their receipt, after being duly signed by an official representative of
Verve. When posted, they shall remain posted for 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent Verve to insure that these notices are not
altered, defaced, or covered by any other material.
(c) Post at the same places and under the same conditions as set
forth in (b), above, as soon as they are forwarded by the Regional
Director, copies of the notice attached hereto marked "Appendix B."
(d) Mail to the Regional Director for the Twenty-first Region
copies of the notice attached hereto marked "Appendix A" for posting
by the Respondent Union in its business office and meeting halls in
Los Angeles, California, in places where notices to members are cus-
tomarily posted. Copies of said notice, to be furnished by the Regional
Director, shall, after being signed as provided above, be forthwith
returned to the Regional Director for such posting.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
B. The Respondent, Musicians Mutual Protective Association,
Local 47, American Federation of Musicians of the United States and
Canada, AFL-CIO, its officers, representatives, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Verve, its
officers, agents, successors, or assigns, to discriminate against em-
ployees or prospective employees in violation of Section 8 (a) (3) of the
Act, as amended.
(b) In any other related matter restraining or coercing employees
or prospective employees of the Respondent Verve in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in Los Angeles,
California, copies of the notice attached hereto marked "Appendix
is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
VERVE RECORDS, INC. 1053
B." 14 Copies of the notice, to be furnished by the Regional Director
of the Twenty-first Region, shall be posted by the Respondent Union
immediately upon their receipt, after being duly signed by an official
representative of the Union. When posted, they shall be maintained
by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent Union to
insure that these notices are not altered, defaced, or covered by any
other material.
(b) Post at the same places and under the same conditions as set
forth in (a) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix A."
(c) Mail signed copies of the notice attached to this Decision
marked "Appendix B" to the Regional Director for the Twenty-first
Region for posting by the Respondent Verve at the place of business
of the Respondent Verve in Los Angeles, California, in the places
where notices to employees are customarily posted. Copies of the
notice, to be furnished by the Reigonal Director for the Twenty-first
Region as the agent of the Board, shall be returned forthwith to the
Regional Director, after they have been signed by an official repre-
sentative of the Respondent Union, for such posting.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
C. The Respondent Verve and the Respondent Union, and their
respective officers, agents, successors, and assigns, shall jointly and
severally and in the manner set forth in the Section of this Decision,
entitled "The Remedy," make whole Francis L. (Joe) Howard for
any loss of pay he may have suffered because of the discrimination
against him.
MEMBERS RoDGERS and FANNING took no part in the consideration
of the above Decision and Order.
"See footnote 13.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in Musicians Mutual
Protective Association, Local 47, American Federation of Mu-
sicians of the United States and Canada, AFL-CIO, or in any
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization of our employees, by discharging em-
ployees or by refusing to hire employees unless they have been
cleared or approved by a labor organization, or by discriminating
against employees or prospective employees in any other manner
in regard to their hire or tenure of employment or any term or
condition of employment, except to the extent permitted by Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
VVE WILL NOT in any other related manner interfere with, re-
strain, or coerce our employees or prospective employees in the
exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL make Francis L. (Joe) Howard whole for any loss
of pay he may have suffered by reason of the discrimination
against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement authorized by Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
VERVE RECORDS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF MUSICIANS MUTUAL PROTECTIVE ASSO-
CIATION, LOCAL 47, AMERICAN FEDERATION OF MUSICIANS OF THE
UNITED STATES AND CANADA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT cause or attempt to cause Verve Records, Inc., its
officers, agents, successors, or assigns, to discriminate against its
employees or prospective employees within the meaning of Sec-
tion 8 (a) (3) of the Act.
VERVE RECORDS, INC. 1055
WE WILL NOT in any other related manner restrain or coerce
employees or prospective employees of the above Company, its
successors or assigns, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL make Francis L. (Joe) Howard whole for any loss
of pay he may have suffered as a result of the discrimination
practiced against him.
MUSICIANS MUTUAL PROTECTIVE ASSOCIA-
TION, LOCAL 47, AMERICAN FEDERATION
OF MUSICIANS OF TIIE UNITED STATES
AND CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner in Los
Angeles, California , June 8, 1959 , on the complaint of the General Counsel of the
National Labor Relations Board, herein called the Board , and answer of Musicians
Mutual Protective Association , Local 47, American Federation of Musicians of the
United States and Canada , AFL-CIO, herein called the Union . Verve Records, Inc.,
herein called Verve or Employer , filed no answer and did not participate in the
hearing.I The issue litigated was whether the Union violated Section 8(b) (1) (A)
and (2 ) of the National Labor Relations Act, 61 Stat . 136, herein called the Act,
by causing Verve to discharge its employee , Francis L . (Joe) Howard , because
Howard's employment by Verve was iri violation of the Union 's quota system. After
the evidence had been taken the General Counsel 's representative at the hearing
argued orally upon the record . No briefs were filed.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Verve is a Delaware corporation with its principal place of business in Beverly
Hills, California, where it is engaged in the manufacture of phonograph records.
It annually ships products valued in excess of $50,000 directly to points outside
California.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint herein involves the application and enforcement of a quota system
by which this Union has for some 20 years endeavored to accomplish an equitable
1 The General Counsel moved for summary judgment with respect to Verve. See foot-
note 5, infra
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution of employment among the 15,000 musicians it represents in the Los
Angeles area. Professional musicians in this geographical area not members of a
labor organization are probably as rare as the Trumpeter Swan and therefore the
impingement of this complaint is upon a whole community of performing artists,
although only one person is named in the complaint.
The material facts of the case are undisputed.
In February 1959, Verve contracted for the employment of 18 musicians, including
a "leader," for a recording session to occur on February 21. The contract was
negotiated by David Klein, known in the trade as a contractor. The personnel to
perform under the contract were selected by Russ Garcia, an orchestra leader, known
in the trade as a leader, referred by him to the contractor, and the contactor in turn
notified the persons so selected of their designation. The contractor also submitted
a list of the designated personnel to the Union. The Union's rules require the sub-
mission of such a list at least 48 hours prior to the recording date, though in practice
the notification may come as late as 24 hours prior to the performance. The Union
checks such lists to determine whether the employees thus selected are eligible for
employment under the Union's rules and regulations, and posts the lists on its
bulletin board.
The procedure followed with respect to the February 21 recording engagement
appears to be the usual method by which recording artists are obtained through the
Union, though there may be minor variations. Where the number of recording
artists is small, the leader may himself act as contractor. On occasions the selection
of personnel may be made by the contractor, with the consultation and approval of
the leader. Cancellation of an engagement is permissible by either the contractor
or the artist selected by the leader up to within 24 hours of the scheduled performance.
- Included on the leader's list of personnel to fill the February 21 recording engage-
ment was Francis L. (Joe) Howard, a trombone player. Klein's office notified
Howard of his selection about a week prior to the recording date and Howard
indicated his availability. When the Union received this list some 48 hours prior
to the recording date, it discovered that Howard had had two prior recording engage-
ments in that same week and to allow him to fill another engagement on February
21 would be to abrogate its quota regulations. The Union thereupon called Klein's
office, advised it that a February 21 recording session would put Howard over his
quota for that week, and Klein's office then called Howard and informed him that
his name was being struck from the leader's list. The leader upon being advised of
the situation selected another recording artist to substitute for Howard.
Both the leader and the contractor are members of the Union and are bound by
the Union's rule on quotas.2 They act in a dual capacity, now as agents of the
Employer, now as agents of the Union, and it is not easy always to determine in
precisely what capacity they are acting, but there is no question that the contractor
is the Union's agent in "policing" the performance of the contract, and it is equally
clear that the contractor has no carte blanche authority in the designation of per-
sonnel to fill an engagement. The following letter from the Union, dated January
23, 1959, served upon all leaders and contractors, illustrates the point:
The following resolution was adopted by the Board of Directors of Local 47
in meeting January 21, 1959:
"Moved and seconded that Contractors, who knowingly engage quotaed
musicians, be subject to fine and other actions by the Trial Board and/or the
Board of Directors."
Please govern yourself accordingly.
It is the position of the General Counsel, as I understand it, that the Union in the
enforcement of its quota regulations caused Verve to discriminate against Howard,
and Verve knowingly discriminated against him, for reasons that fall outside the
proviso to Section 8(a)(3). The Union's quota system is thus placed in issue, and
as far as I can determine from the pleadings and the General Counsel's oral argument
at the close of the hearing, that is the sole issue to be determined here. There is no
question that the quota regulations were applied to Howard, a member of the Union
for some 20 years and now a member in good standing, and that Verve in the sense
that the contractor acted on its behalf, had full knowledge of the circumstances under
which Howard's name was removed from the employment list. It is equally clear
that the quota regulations were applied to Howard in a completely nondiscriminatory
manner. Admittedly, for him to have filled the February 21 recording engagement
would have been to exceed the two recording sessions a week allowed him under the
2 This is true of the leader as well as the contractor because the former on occasion
acts in the capacity of a contractor, and is one of the 18 musicians required under Verve's
contract with the Union.
VERVE RECORDS, INC. 1057
Union's quota system, and it was for that reason and that reason alone that his
name was removed from the leader's list and the name of another recording artist
substituted.
In 1958 the Union's quota system , in existence for some 20 years, was extended
to cover recording engagements. This was done by a majority vote taken at a pub-
licized general membership meeting in the summer of 1958. The quota regulations
so adopted provide, as quoted in paragraph 5 of the complaint:
1. Four 3-hour record sessions shall constitute the quota for sidemen and
contractors.
2. Any musician employed in a quotaed field, but not quotaed under existing
quota laws is entitled to play three 3-hour record sessions.
3. A musician quotaed under existing quota regulations is entitled to work
two 3-hour record session.
NoTE.-Musicians quotaed by working four 3-hour record sessions as per
No. 1 are still entitled to perform two additional record sessions as per No. 3.
Howard, who holds a staff position as trombonist with the National Broadcasting
Company, was because of that position, I presume, a "musician quotaed under
existing quota regulations," and, accordingly was allowed to work two recording
sessions in a week. In any event, there is no dispute that for him to have filled the
February 21 engagement would have exceeded his quota for that week.
Approaching the issue, a few preliminary observations may serve to narrow and
clarify it. We are not concerned here with a collective-bargaining contract made
by an employer and a labor organization acting in its capacity as exclusive repre-
sentative of employees in an appropriate unit. Nor are we concerned with an
exclusive hiring-hall arrangement and therefore the Mountain Pacific Chapter of the
Associated General Contractors, Inc. et al. (119 NLRB 883) line of cases has no
proper application to the facts of this case. Earlier cases such as A. B. Swinerton,
et at., d/b/a Swinerton and Walberg Company, 94 NLRB 1079, and Thomas
Rigging Company, 102 NLRB 65, involving similar issues , also do not constitute
precedents governing this case. The Verve contract was for a single engagement
lasting from 3:20 to 6:20 p.m., and there is nothing in it which would prevent Verve
from hiring any number of musicians from any source of its own choosing. There
is no showing that the Union in any way blocked, or attempted to block, or in any
way sought to qualify the employment of any person or persons other than the 18
musicians called for in the Verve contract. The Verve contract itself has certain
features peculiar to the trade which are not illuminated by the record in this case 3
But it is amply clear, I think, that this contract was made by the Union for the
benefit of the 18 recording artists required by Verve, and that the Union in supplying
these 18 musicians acted as an employment agency for its members. Therefore we
do not have the situation that is encountered in the Swinerton and Walberg line of
cases where an individual applicant for employment qualifies for a job in the open
market and is denied it because of the intervention of a labor organization. It is
obvious that members of the Union were fully aware of the Union's practices
in clearing them for employment, were aware of the democratically adopted quota
system, and had subjected themselves to and acquiesced in these practices by con-
tinuing their union affiliation. Howard would have received no notice of the record-
ing engagement except that this name came to be submitted on a list prepared by
the leader. Nevertheless, it is the General Counsel's position, as I understand it,
that when the leader initially selected Howard's name as one of the 18 recording
artists for the February 21 engagement, and the contractor notified Howard that
he had been so designated, and Howard voiced his availability for the engagement,
Howard had been offered employment by Verve and had accepted it and this offer
and its acceptance gave him employee status with Verve.
The position is plausible enough if we view the leader in his initial designation
of Howard, and the contractor in his notification of Howard that he had been
designated, as agents solely of the Employer, and if we view the initial notification
by the contractor as having the definiteness and finality of an offer of employment.
To take this view, however, it is necessary to ignore the peculiar dual-agency char-
acter of the leader and the contractor. As previously stated, both are members
It appears to run between Verve and the 18 musicians selected for the February 21
engagement and is executed by the signatures of Garcia for Verve, and Klein for the
leader, Garcia. However, it is a printed form, obviously supplied by the Union, bearing
the Union's designation at its top, and containing various union terms and conditions
governing the duties and responsibilities of the leader and the contractor as well as the
artists named in the contract
560940-61-vo1. 127-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union and in the designation of personnel are bound by the rules and regu-
lations of the Union , including the Union 's quota system . Neither the leader nor
the contractor therefore has the authority in his choice of personnel to ignore the
Union's quota system . It seems to me to follow that in their selection of personnel
they are agents of the Union at least up to the time the leader 's list is submitted to
the Union for its approval , and has been cleared by it. Then, and only then, is the
contractor in position to act for the Employer in making a binding offer of employ-
ment. Indeed, it is only after the list has been submitted to the Union and the
Union has cleared it that there are any actual applicants for employment, for
nothing is clearer in this case than that the performing artists do not make individual
applications to an employer but that they apply for and obtain employment through
the agency of the Union . That this is true is indicated by the fact that 48 hours
prior to a recording engagement the contractor , or the leader acting as contractor,
is required to submit a list of selected personnel to the Union , obviously for the
purpose of allowing the Union to determine if its rules and regulations governing
the employment of its members have been observed , and by the further fact that
up to within 24 hours of the engagement , any person designated may be removed
from the list of performers . Clearly, I think, the initial notification of Howard
was to determine his availability and to put him on notice that, subject to clearance
by the Union , he was selected for the engagement . The notification did not and
could not ripen into an actual offer of employment until after the list had been
submitted to the Union . Howard, as well as the contractor , was well aware of this
procedure and therefore must have known that the designation was tentative and
that any time up to within 24 hours of the engagement his name might be removed
from the list, just as he must have known that to fill the engagement in question
would be to exceed his quota for the week and therefore , under the regulations of
the Union which he had authorized to represent him in such matters, he was in-
eligible for the engagement . In short, it is my opinion that at no time did Howard
achieve employee status with Verve for the recording session of February 21, and
that his statement of his availability is not properly construed , on the facts of this
case, as an application for employment .4
The Union, acting as an employment agency for its members, either directly or
through the medium of a leader-contractor combination , like any other employment
agency or bureau, has not only the right but the responsibility to see that properly
qualified personnel are named to fill engagements under its contracts with em-
ployers , and I see no reason why, in acting as an employment agency , it has not the
Tight also to make and enforce such rules and regulations governing its offering of
personnel as it reasonably believes will promote the general welfare of its members.
Such an agreement may properly be said to encourage membership in the Union
but that does not ipso facto render the agreement invalid. Any contract any em-
ployer makes with any labor organization may be said to encourage membership
in the labor organization . In Columbia Broadcasting System , Inc., 119 NLRB 810,
the union had an oral agreement with the employer to furnish a total of some 18
stagehands on a certain job, and refused the request of 1 of its members to be re-
ferred for work on the job because he had not paid a fine assessed against him. The
Trial Examiner , with the Board 's approval , found that there being no evidence that
by its agreement with the union the employer relinquished its right to hire em-
ployees independently of the union , there was no violation of the Act in the union's
refusal to clear the member in question . Would the legal posture of the case have
been any different if there had been some "middleman" in the case , representing
now the employer and now the union , who had indicated that the member refused
clearance by the union was acceptable to the employer' I think not . In fact, I can
see no material and substantial distinction between that case and the case at bar.
Accordingly , I must recommend dismissal of the complaint.5
4 Floward ' s testimony on direct examination that he was "engaged " for the Verve re-
-cording session has no probative weight It was in response to a leading question and
represents a conclusion of the witness. The Trial Examiner was in error in allowing the
question over objection On cross-examination he testified that he received a call from
Klein ' s office " to be available."
5 Verve having filed no answer to the complaint and not having appeared at the hearing,
the General Counsel very properly moved for a judgment on the pleadings with respect
to it . Except that this is a consolidated complaint , and the evidence taken shows the
entire transaction between Verve and the Union alleged to be tainted with illegality, the
motion would be granted as a matter of course With the evidence before me despite
Verve's default, and convinced as I am that it establishes no violation of the Act, I see
no equitable alternative to dismissal of the entire complaint and for that reason and that
reason alone deny the General Counsel's motion
DRIVERS AND CHAUFFEURS LOCAL UNION NO. 816, ETC. 1059
CONCLUSIONS OF LAW
1. The operations of the Respondent Employer constitute and affect trade, traffic,
and commerce among the several States and foreign countries , within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondents have not engaged in the unfair labor practices alleged in the
complaint herein to have been committed by them.
[Recommendations omitted from publication.]
Drivers and Chauffeurs Local Union No. 816, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Montgomery Ward and Co ., Incorpo-
rated. Case No. 2-CC-525. June 7, 1960
DECISION AND ORDER
On February 23,1960, Trial Examiner John F. Funke issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
.set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent, the Charging Party, and the General
Counsel filed exceptions to the Intermediate Report. Briefs were filed
by the Charging Party and the General Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings,' conclusions, and recom-
mendations 2 of the Trial Examiner.
i In addition to the evidence set forth in the Intermediate Report establishing induce-
ment, we note that Brusco, a driver for Gilbert Carrier, a neutral trucking company,
testified without contradiction that when he appeared at Ward 's delivery entrance to make
a pickup on September 2, 1959, he was told by Wesley , one of the pickets , "Don't pick
up; we on [sic ] strike ." The General Counsel and the Charging Party except to the Trial
Examiner 's finding that the symbol F/AC meant "for the account of" rather than "for
account. " The record supports this interpretation , and we correct the Intermediate
Report accordingly.
2 The General Counsel and the Charging Party also except to that portion of the recom-
mended notice reading "when we do not represent a majority of such employees in an
appropriate unit." We find merit in this exception and shall substitute for the quoted
portion the following statutory language : "unless and until we are certified as the repre-
sentative of such employees pursuant to the provisions of Section 9 of the Act."
127 NLRB No. 130.
I