Lancaster Symphony Orchestra

361 NLRB No. 101 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. Lancaster Symphony Orchestra and The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL–CIO. Case 04–CA–082327 November 12, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND JOHNSON On August 21, 2012, the National Labor Relations Board issued a Decision and Order in this proceeding, which is reported at 358 NLRB No. 104 (2012). There- after, the Respondent filed a petition for review in the United States Court of Appeals for the District of Co- lumbia Circuit, and the General Counsel filed a cross- application for enforcement. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by the Union on June 4, 2012, the then-Acting General Counsel1 issued the complaint on June 19, 2012, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in case 04–RC–021311.2 The Re- spondent filed an answer admitting in part and denying in part the allegations in the complaint. On July 6, 2012, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support of Motion. On July 10, 2012, the Board issued an order transferring the proceeding to the Board and a Notice to 1 Although some actions in this proceeding were taken by the then- Acting General Counsel, this case is being currently being litigated by the General Counsel. Therefore, all further references are to the Gen- eral Counsel. 2 357 NLRB No. 152 (2011). Official notice is taken of the record 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). 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 The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the grounds that the certified unit includes only independent contractors and not employees within the meaning of Section 2(3) of the Act. 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).3 Accordingly, we grant the Motion for Summary Judg- ment.4 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has provided live musical performances and educational outreach programs in Lancaster, Pennsylvania. During the 12-month preceding issuance of the com- plaint, the Respondent, in conducting its business opera- tions described above, received gross revenues, exclud- ing contributions unavailable for use for operating ex- penses, in excess of $1 million and purchased and re- ceived in excess of $5000 directly from points outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 Member Johnson did not participate in the underlying representa- tion proceeding and expresses no opinion whether it was correctly decided. He agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. 4 The Respondent’s request that the complaint be dismissed in its entirety is therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held by mail bal- lot from February 15, 2012, through February 29, 2012, the Union was certified on March 13, 2012, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: Included: All full-time and regular part-time musicians employed by Respondent (musicians who performed in at least one program in the prior season and at least one program in the current season, or those who performed in a total of at least three programs during those sea- sons). Excluded: CEO, Music Director, Development Direc- tor, Artistic Administrator, Director of Education, Sub- scription Manager, office clerical employees, manag- ers, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain On about March 20, 2012, the Union, by letter, re- quested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. Since about March 20, 2012, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of the unit. We find that the Respondent’s failure and refusal to recognize and bargain with the Union con- stitutes a violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about March 20, 2012, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in an un- fair labor practice affecting commerce within the mean- ing 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 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); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Lancaster Symphony Orchestra, Lancaster, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL–CIO, as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment, and if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time musicians employed by Respondent (musicians who performed in at least one program in the prior season and at least one program in the current season, or those who performed in a total of at least three programs during those sea- sons). Excluded: CEO, Music Director, Development Direc- tor, Artistic Administrator, Director of Education, Sub- scription Manager, office clerical employees, manag- ers, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Lancaster, Pennsylvania, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es including all places where notices to employees are 5 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.” LANCASTER SYMPHONY ORCHESTRA 3 customarily posted. In additional to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since on or about March 20, 2012. (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. November 12, 2014 Mark Gaston Pearce, Chairman Kent Y. Hirozawa, Member Harry I. Johnson, III, 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL–CIO, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. 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 fol- lowing unit: Included: All full-time and regular part-time musicians employed by Respondent (musicians who performed in at least one program in the prior season and at least one program in the current season, or those who performed in a total of at least three programs during those sea- sons). Excluded: CEO, Music Director, Development Direc- tor, Artistic Administrator, Director of Education, Sub- scription Manager, office clerical employees, manag- ers, guards and supervisors as defined in the Act. LANCASTER SYMPHONY ORCHESTRA The Board’s decision can be found at www.nlrb.gov/case/04-CA-082327 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.