Seattle Opera Assn.,

333 NLRB No. 37 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Seattle Opera Association and American Guild of Musical Artists, AFL–CIO. Case 19–CA–27288 February 8, 2001 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND HURTGEN Pursuant to a charge filed on December 8, 2000, the General Counsel of the National Labor Relations Board issued a complaint on December 13, 2000, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 19–RC–13939. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint. On January 4, 2001, the Acting General Counsel filed a Motion for Summary Judgment. On January 5, 2001, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain, but attacks the validity of the certification on the basis of the Board’s unit determination in the representa- tion proceeding that auxiliary choristers are not statutory employees. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a State of Washington corporation, with offices and a place of business in Seattle, Washing- ton, where it is engaged in the business of producing grand operas. The Respondent, during the 12-month period preceding the issuance of the complaint, in the course and conduct of its business operations, had gross sales of goods and services valued in excess of $1 mil- lion and purchased and caused to be transferred and de- livered to its facility within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State, or from suppliers within the State, which in turn obtained such goods and materi- als from sources outside the State. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held between October 17 and 24, 2000, by secret-mail ballot, the Union was certified on November 14, 2000, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit:1 All alternate and auxiliary choristers employed by Re- spondent, EXCLUDING all other persons. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since November 20, 2000, the Union has requested the Respondent to bargain, and, since November 30, 2000, the Respondent has declined. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after November 30, 2000, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and 1 On May 3, 2000, the Regional Director for Region 19 issued a De- cision and Direction of Election, which provided for a self- determination election among all alternate choristers employed by the Respondent excluding all other persons (the unit). Thereafter, the Union filed a request for review of the Regional Director’s decision that auxiliary choristers are volunteers and not statutory employees under WBAI Pacifica Foundation, 328 NLRB No. 179 (1999). On August 24, 2000, the Board, in Seattle Opera Assn., 331 NLRB No.148, subsequently reversed the Regional Director’s Decision and Direction and Election, holding that auxiliary choristers are employees within the meaning of Sec. 2(3) of the Act, and remanded the case to the Regional Director for further appropriate action, including consid- eration of the issue related to casual employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Seattle Opera Association, Seattle, Wash- ington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with American Guild of Musi- cal Artists, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All alternate and auxiliary choristers employed by Re- spondent, EXCLUDING all other persons. (b) Within 14 days after service by the Region, post at its facility in Seattle, Washington, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 19 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the 2 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 30, 2000. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 8, 2001 John C. Truesdale, Chairman Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with American Guild of Musical Artists, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All alternate and auxiliary choristers employed by us, EXCLUDING all other persons. SEATTLE OPERA ASSOCIATION