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Glasser v. National Labor Relations Board

decided: May 13, 1968.


Friendly and Smith, Circuit Judges, and Gignoux, District Judge.*fn*

Author: Gignoux


Don Glasser and George Doerner, orchestra leaders and members of the American Federation of Musicians, petition for review of a decision and order of the National Labor Relations Board dismissing portions of an unfair labor practice complaint which had issued upon petitioners' charges.*fn1 Their petition presents three questions: (1) whether the Federation violated Sections 8(b)(1)(A) and 8(b) (2) of the National Labor Relations Act, as amended, 29 U.S.C. ยง 151 et seq. (1964), by processing charges filed by its member locals against petitioners for alleged violations of Federation bylaws requiring orchestra leaders to employ only Federation members in good standing; (2) whether the Board erred in failing to issue a remedial order against the Federation's Local 80 on its finding that Local 80 was guilty of an unfair labor practice by filing such a charge against petitioner Doerner; (3) whether the Federation is in violation of the above-mentioned statutory provisions by maintaining and enforcing bylaws which prohibit Federation members from playing with non-members.

Section 8(b) of the Act provides in pertinent part:

It shall be an unfair labor practice for a labor organization or its agents -- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . .

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)

(3) . . . .*fn2

Petitioners Glasser and Doerner are engaged in the business of providing musical entertainment at dances, parties, nightclubs, banquets and similar occasions primarily on a "single engagement" basis.*fn3 Like most orchestra leaders in the United States, they are members of the Federation, the membership of which is composed of both orchestra leaders and performing musicians.

At the time of the events here involved,*fn4 the bylaws of the Federation contained the following provisions:

Article 13, Section 5. A member of the Federation cannot play with suspended or expelled members or with nonmembers in the jurisdiction of a local or of the Federation on competitive engagements unless it be with the consent of the Federation or in cases wherein the laws of the Federation provide otherwise.

Article 16, Section 3. Leaders of orchestras or bands playing traveling engagements shall only employ members who are in good standing in the Federation. Any person performing with an orchestra is prohibited from using any kind of contraption or device that lends background rhythm to the rendition of an orchestra, unless he or she holds a membership card in the American Federation of Musicians. A fine of not less than $10.00 nor more than $500.00 shall be imposed for each violation.

Article 16, Section 4. A member to be in good standing must produce a membership card or receipt showing payment of the current quarterly dues in the local in which he holds membership. If a member cannot produce a membership card or a receipt for the current quarterly dues, he must in addition to his arrearage in dues pay a fee of $5.00 to place himself in good standing. Leaders of traveling orchestras or bands shall be responsible for failure of sidemen to abide by this law and shall be fined $10.00 for each violation thereof.

Sanctions for violations of these bylaws are invoked by the Federation's Executive Board.*fn5

The events that led to the present controversy may be briefly stated. In February 1965, petitioner Glasser and his orchestra were playing at a ballroom in Edelstein, Illinois, when a representative of the Federation's Peoria local "checked the cards" of Glasser's musicians and informed him that four of them did not have union cards. Subsequently, the Peoria local filed charges against Glasser alleging violation of Article 16, Section 4 of the bylaws. On August 19, 1965, these charges were dismissed by the Executive Board of the Federation. In May 1965, at Concordia, Kansas, Glasser hired a substitute musician who was not a member in good standing of the Federation's Salina local, which had jurisdiction in the ...

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