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MCLEOD EX REL. NLRB v. ASSOCIATED MUSICIANS OF GRE

April 8, 1968

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AFM-AFL-CIO, Respondent


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

This petition for a preliminary injunction pursuant to Section 10(l) of the National Labor Relations Act, 29 U.S.C.A. Section 160(l) presents the question whether there is reasonable cause to believe that the respondent-labor union has engaged in, and engaging in, "unfair labor practices", as that term is defined in the National Labor Relations Act.

 The Court grants the petition. The findings of fact and the conclusions of law which constitute the grounds of the Court's action (Fed.R.Civ.P. 52(a)) and the reasons for the issuance of the preliminary injunction (Fed.R.Civ.P. 65(d)) are set forth in this opinion.

 The Regional Director of the Second Region of the National Labor Relations Board (herein called the Board), acting pursuant to Section 10(l) of the National Labor Relations Act, 29 U.S.C.A. Section 160(l) (herein called the Act), has filed a petition for a temporary injunction pending the final adjudication of the Board with respect to the matters involved herein now before the Board on a charge filed by the National Association of Orchestra Leaders (Exh. 1 attached to the petition). The charge is that respondent, Associated Musicians of Greater New York, Local 802, AFM-AFL-CIO (herein called the union) has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A), of the Act, 29 U.S.C.A. Section 158(b)(4)(i) and (ii)(A), which prohibits certain conduct by a labor organization to force or require an employer to join any labor organization.

 The above-cited statutory provision contained in Section 8 of the Act relevantly defines "unfair labor practice" in the following terms:

 
"(b) It shall be an unfair labor practice for a labor organization or its agents -
 
* * *
 
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is -
 
(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;
 
* * *."

 At the center of the controversy is an orchestra leader named Joseph Carroll, who does business as Joe Carroll Orchestras. The union and Carroll have been litigating with each other for the past seven years. The present proceeding is another battle in that war.

 The petition (dated February 26, 1968) is predicated on petitioner's conclusion that there is reasonable cause to believe that the union has engaged in the unfair labor practices charged and that a complaint of the Board based on the charge should issue.

 The hearing on the petition was brought on by an order to show cause (filed March 1, 1968) returnable on March 5, 1968. Upon counsel's request, the Court set the matter down for an evidential hearing. A hearing was held on March 8, 1968. The transcript of that hearing runs to 242 pages. *fn1"

 FINDINGS OF FACT

 1. Petitioner is Regional Director of the Second Region of the Board, an agency of the United States. He has filed the petition herein for and on behalf of the Board.

 2. On January 3, 1968, the National Association of Orchestra Leaders, pursuant to provisions of the Act, filed a charge with the Board alleging, inter alia, that respondent, a labor organization, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act.

 3. The aforesaid charge was referred to petitioner as Regional Director of the Second Region of the Board.

 4. There is, and petitioner has reasonable cause to believe that:

 (a) Respondent, an unincorporated association, is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

 (b) Respondent maintains its principal office in New York City. At all times material herein, respondent has been engaged within this judicial district in transacting business and in promoting and protecting the interests of its employee members.

 (c) Joseph Carroll is an individual proprietor doing business under the trade name and style of "Joe Carroll Orchestras". He maintains his office and principal place of business in New York City. Carroll is engaged in the business of providing orchestras, bands, musical entertainment and related services to night clubs, country clubs, restaurants, hotels and other business and commercial enterprises and to private individuals. During the year 1967, Carroll had gross revenue from single engagements in excess of $200,000, of which more than $30,000 was derived from engagements performed within the State of New York for business and commercial clients engaged in interstate commerce. Excess of $50,000 was derived by Carroll from engagements performed outside the State of New York.

 (d) Carroll is the sole owner and operational head of Joe Carroll Orchestras. He actively controls the formulation and implementation of decisions and policy with respect to fiscal and all other business matters as well as labor relations of Joe Carroll Orchestras. In addition, he acts on many occasions, as the orchestra or band leader of orchestras and bands furnished by him in the course of his business operations.

 It is undisputed in this case that Carroll is an employer.

 (e) Carroll employs over 200 musicians a year. For more than twenty years, all of the musicians employed by him have been members of respondent except for a few who were expelled from respondent because they played in bands which were conducted by Carroll.

 (f) At all times material herein, respondent has had in effect a by-law prohibiting its members from performing in or with a band or orchestra which is led or conducted by a non-member of respondent, or in which a non-member of respondent plays an instrument or performs any other work of a musician, irrespective of ...


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