National Labor Relations Bd. v. Associated Musicians

• Decision Date: 03 November 1955
• Docket Number: Docket 23550.,No. 35,35
• Citation: 226 F.2d 900
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS, AFL, and Al Manuti, its agent, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

226 F.2d 900 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED MUSICIANS OF GREATER NEW YORK, LOCAL 802, AMERICAN FEDERATION OF MUSICIANS, AFL, and Al Manuti, its agent, Respondents.

No. 35, Docket 23550.

United States Court of Appeals Second Circuit.

Argued October 5, 1955.

Decided November 3, 1955.

COPYRIGHT MATERIAL OMITTED

Samuel M. Singer, Atty., N. L. R. B., Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

David I. Ashe, New York City (Ashe & Rifkin, New York City, on the brief), for respondents.

Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.

CLARK, Chief Judge.

This is a petition by the National Labor Relations Board for enforcement of its order directing respondent musicians' union and its president and agent, Manuti, to desist from certain unfair labor practices. The Board found that respondents had violated § 8(b)(4)(A) of the Act, 29 U.S.C. § 158(b)(4)(A), by inducing and encouraging employees of New York Yankees, the Parkway Sporting Club, Inc., and various employers doing business with the Yankees and Parkway to engage in strikes, an object of which was to force or require these employers to cease doing business with Gotham Broadcasting Corporation.

The basic facts, as found by the Board on report of its trial examiner, 110 N.L.R.B. No. 269, are not seriously in dispute. We summarize them as follows: Gotham Broadcasting Corporation owns and operates Radio Broadcasting Station WINS, with offices and studios located at 28 West 44th Street in New York City. The transmitter of WINS, which is connected by telephone circuit to the studio, is located in Lyndhurst, New Jersey. WINS broadcasts, at a power of 50,000 watts, commercial and sustaining programs to audiences in New York and surrounding states and also furnishes programs which are broadcast from radio stations in other states. During 1953 Station WINS, then owned by Gotham's predecessor, Crosley Broadcasting Corporation, furnished services valued at more than $900,000 to various enterprises, approximately half of which were engaged in interstate commerce.

The musicians employed by WINS were represented by the union, respondent in this case. On April 1, 1954, as a result of a dispute over the number of musicians to be employed by Gotham at the radio studio, the union went on strike and commenced to picket at the studio.

WINS carries the broadcast descriptions of baseball games played by the New York Yankees at Yankee Stadium. The broadcasting rights to Yankee games are owned by River Operating Corporation, which furnishes its own announcers for broadcasts of the games and which purchases time from Gotham for the broadcasts. Game broadcasts are made from Yankee Stadium, where they are relayed by telephone circuit to the WINS studio and thence to the transmitter in New Jersey. In connection with the broadcasts from Yankee Stadium, Gotham provides a portable amplifier, portable microphones, and one engineer (not a member of respondent union) who goes to the Stadium the morning before the broadcast and remains until after its completion. Gotham derives about ten per cent of its revenue from the Yankee Stadium broadcasts and an additional ten per cent from pre- and post-game broadcasts made from the studio.

The American League franchise for the New York Yankees is owned by a partnership which leases the Yankee Stadium, and which also employs the players and certain other clerical and promotional employees who work there. The partnership has a contract with River Operating Company, Inc., whereby River operates and manages the Stadium. River, in turn, employs a superintendent, ticket sellers, clerks, and others who work at the Stadium. River also has a contract with Allied Maintenance Corporation, whose employees perform various service functions connected with the baseball games and who work at the Stadium. There are, in addition, two other concessionaires who furnish refreshments, and whose employees work at the Stadium. On game days, employees of various news disseminating agencies, such as radio, television, telegraph, and newspapers, are employed at the Stadium. The musicians employed by Gotham did not, however, work there.

On April 1, 1954, when the strike against Gotham began, respondent union sent a telegram to one of the co-owners of the Yankees requesting that he use his "good offices and influence" in effecting a settlement between the union and Station WINS. On April 10, 1954, the union began to picket Yankee Stadium around its entire perimeter, with the result that picketing covered employee and delivery, as well as public, entrances. Picketing continued on game days until May 24 and was enjoined on May 27, 1954. Douds v. Associated Musicians of Greater New York, Local 802, D.C.S.D. N.Y., 123 F.Supp. 798. The picketing commenced each day after a majority of the employees of the concessionaires and other employers had entered the Stadium and coincided with the opening of the gates to the general public.

The regular baseball season was scheduled to begin on April 15, 1954, with traditional ceremonies, including the playing of the National Anthem by the Seventh Regiment Band, whose members belong to the respondent union. The Band is under the direction of Francis W. Sutherland, a retired Army Major, who books its engagements, employs and pays its musicians, and leads its playing. On April 13 and 14, 1955, there were two telephone conversations between respondent Manuti and Major Sutherland regarding the possibility of picketing at Yankee Stadium on April 15. Sutherland stated that as a union member he could not cross the picket line. On the appointed day, the Band assembled at the Seventh Regiment Armory in preparation for its engagement at Yankee Stadium. But when it failed to receive word of a strike settlement by 10:45 a. m., Major Sutherland dismissed it and it did not play at the ceremonies.

Between April 12 and April 14, Edwin B. Fisher, Director of Promotion of the Yankees, had three telephone conversations with respondent Manuti, during which Fisher attempted to persuade Manuti to allow the Band to play. Fisher offered to have the Gotham microphone removed from the Stadium while it was playing if this action would make the engagement acceptable to the union. Manuti, however, indicated that such a removal would not be sufficient and suggested instead that the Yankee management use its influence to have Gotham reach a settlement. He made it clear that without such a settlement the Band would not be permitted to play.

Gotham Broadcasting Corporation (Station WINS) was also under contract with the Parkway Sporting Club, Inc., operating the Eastern Parkway Rink in Brooklyn, New York, to broadcast accounts of boxing exhibitions given at the Rink each Monday night. In connection with these broadcasts Gotham provides at the Rink a portable amplifier, portable microphones, an engineer, and sportscasters. Parkway also leases food, refreshment, and other concessions at the Rink to various firms, whose employees work there. But no musicians from WINS are there employed.

Between 6:00 and 7:00 p. m. on April 12, 1954, respondent union began to picket at the Rink in front of the main entrance, which is used by most of the employees of Parkway and of the concessionaires operating inside the Rink, as well as by patrons. On the evening of April 12 during the time that respondent union was engaged in picketing, some of the employees of Parkway and of the concessionaires were arriving for work.

Shortly after commencement of the picketing it came to the attention of certain members of the management of Parkway, who immediately communicated by telephone with officials of the union. Upon being informed that the reason for the picketing was that fight broadcasts were going out over Gotham facilities, the Parkway management agreed to submit a letter promising to prevent Gotham from broadcasting and to order the removal of its equipment from the Rink until the settlement of the dispute between Gotham and the union. After delivery of the letter to a representative of the union the pickets were withdrawn before 8:00 p. m. No further broadcasts were made from the Rink until May 31, 1954, or after the injunction against picketing by respondent union had issued.

The picket signs at both the Yankee Stadium and the Rink read: "Musicians of Radio Station WINS Are on Strike, Local 802, American Federation of Musicians, Affiliated with the American Federation of Labor." The picketing at both locations was peaceful. None of the employees at either location actually engaged in a strike as a result of the picketing.

There is substantial evidence on the record considered as a whole to support the finding of the Board that an object of the picketing was to bring about a strike or concerted refusal to work on the part of employees at Yankee Stadium and at the Eastern Parkway Rink; we therefore accept it. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The union makes the claim that the only purpose of the picketing was to publicize its dispute with Gotham. But the evidence shows that at least one of its objectives was to apply pressure to the secondary employers for the purpose of causing them, in turn, to threaten Gotham with loss of business unless it came to terms with the union. The urgings to the Yankee management to "talk sense into their the Gotham management's heads" and to "use their good offices" clearly indicate the purpose of the picketing at the Stadium. At the Rink the fact that picketing immediately ceased when Parkway promised to keep Gotham off the premises makes the purposes of that picketing quite clear. Requests and threats addressed by respondents to employers, even though not...