NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
The Raymond F. Kravis Center for the Performing Arts and International Alliance of Theatrical Stage Employees and Moving Picture Technicians and Allied Crafts of the United States, Its Territories and Canada, IATSE, AFL–CIO, Local 623. Case 12–CA–21361
September 28, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Kirsanow
This case presents the question of whether, in light of the Supreme Court’s decision in NLRB v. Financial Institution Employees of America Local 1182 (Seattle-First), 475 U.S. 192 (1986), the Board should modify its standard for determining under what circumstances a union merger or affiliation may relieve an employer of its obligation to recognize and bargain with the incumbent union. In view of the Court’s decision, we have determined that an employer is not relieved of its bargaining obligation merely because the merger or affiliation is accomplished without due process safeguards.
i. background
The Respondent, The Kravis Center for the Performing Arts,
is a theatrical performance complex located in
In March 1998, the parties entered into a second agreement, which lasted through June 30, 2000. This agreement provided that the Respondent would use the hiring hall exclusively for its own productions in the facility’s concert hall, but that the Respondent could use other sources of labor in addition to the hiring hall for stagehand work at other theaters in the complex, or for productions by outside companies.
On April 27, 2000, the Respondent notified Local 623 that it was terminating the collective-bargaining agreement on its expiration date. The Respondent failed to notify the Federal Mediation and Conciliation Service (FMCS) of its intention as required by Section 8(d)(3) of the Act.
The parties began negotiating for a successor agreement in
late May. Approximately 3 months later,
on September 11, the Respondent declared impasse and unilaterally implemented
the terms of its final bargaining proposal, which included use of the hiring
hall on a nonexclusive basis, the right to subcontract stagehand work at the Respondent’s
discretion, and the application of the collective-bargaining agreement only to
those workers referred from the hiring hall.
The Respondent withdrew recognition from the
On February 1, 2002, several days before the hearing in this case began, Local 623 merged with five other south Florida IATSE locals to form Local 500. The merger was conducted in accordance with the International Union’s constitution;[1] however, members of Local 623 were not given an opportunity to vote on the merger. The General Counsel contends that as a result of the merger, Local 500 is the successor of Local 623 and has inherited the right to represent the Respondent’s employees.
ii. the judge’s decision[2]
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing terms and conditions of employment without
first having given notice to the FMCS as required under Section 8(d)(3) of the
Act. The judge further found that the
Respondent violated Section 8(a)(5) and (1) by declaring impasse over a change
in the scope of the unit, and by withdrawing recognition from Local 623. He also found that the Respondent violated
Section 8(a)(3) and (1) by discharging unit employees who were classified as
department heads, and by refusing to use the
Applying current Board law, the judge rejected the General Counsel’s contention that Local 500 was the successor to Local 623. Accordingly, the judge found that the Respondent had no obligation to recognize and bargain with Local 500, and that any bargaining obligation the Respondent had with Local 623 was terminated as of the date of the merger. He therefore ordered that any remedy due the alleged discriminatees as a result of the Respondent’s unilateral changes should be cut off as of the merger date.
iii. discussion
A. The Unfair Labor Practices
We affirm the judge’s findings of the violations, except as discussed below.[3]
First, we agree with the judge that the Respondent violated
Section 8(a)(5) and (1) by implementing changes to terms and conditions of
employment, including the refusal to use the hiring hall, without having given
prior notice to FMCS pursuant to Section 8(d)(3).[4] See Days
Hotel of
Second, we affirm the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by declaring impasse in September 2000. As explained more fully in the judge’s decision,
the Respondent insisted to impasse that, inter alia, the collective-bargaining
agreement would apply only to those workers referred from the
Third, we affirm the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from Local 623. The applicable standard here for determining whether the withdrawal of recognition was lawful is that set forth in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359, 361 (1998).[7] Pursuant to that standard, an employer may not lawfully withdraw recognition from a union unless the employer demonstrates that it had a good-faith reasonable doubt or uncertainty as to the union’s majority support at the time of withdrawal.
The Respondent does not contend that it withdrew recognition
from Local 623 because it had a good-faith doubt or uncertainty that the
Finally, we find it unnecessary to pass on the judge’s
findings that the Respondent violated Section 8(a)(3) and (1) by discharging employees
who were classified as department heads, and by refusing to utilize the hiring
hall. Because both actions constituted
unilateral changes in violation of Section 8(a)(5), as discussed above, the
additional findings would not materially affect the remedy. See, e.g., 675
B. The Union Merger
1. The due process issue
The judge concluded that Local 500 was not the successor
to Local 623 because the members of Local 623 had not been given the opportunity
to vote on the merger, and the merger had therefore not been conducted with the
appropriate “due process” safeguards as required under Board law.[11] The
As set forth in the judge’s decision, the Board has traditionally
applied a two-prong test, examining both continuity of representation and “due
process,” when a union’s representational status has been challenged following
a union merger or affiliation.[12] The
a. The Supreme Court’s decision in Seattle-First
In Seattle-First, the Supreme Court held that the Board had exceeded its statutory authority by denying a union’s postaffiliation petition to amend its certification, based on the union’s failure to comply with a Board rule requiring that all bargaining unit members, including nonunion members, be allowed to vote on the affiliation. The Court rejected the Board’s argument that the rule was a reasonable means of protecting the right of unit employees to select a bargaining representative under Section 7 of the Act. Rather, the Court found that, under the system for employee representation prescribed by the Act, “the Board cannot discontinue [a certified union’s] recognition without determining that the affiliation raises a question of representation and, if so, conducting an election to decide whether the certified union still is the choice of a majority of the unit.”[14]
The Court further found that the Act “authoriz[es] the Board to conduct a representation election only where affiliation raises a question of representation. Conversely, where affiliation does not raise a question of representation, the statute gives the Board no authority to act.”[15] Thus, the Court concluded that the Board’s rule “upsets the accommodation drawn by the statute by effectively decertifying the reorganized union even where affiliation does not raise a question of representation.”[16] Finding that the Board’s rule also violated congressional policy against outside interference in union decisionmaking, the Court stated:
[T]he Act establishes a specific election procedure to decide whether the employees desire a change in a certified union’s representative status. While the Board is charged with responsibility to administer this procedure, the Act gives the Board no authority to require unions to follow other procedures in adopting organizational changes.[[17]]
The Court cited the Board’s acknowledgment that the union’s failure to allow nonunion employees to vote in the affiliation election was insufficient to present a question of representation.[18] Because no question of representation was raised, the Court found that by refusing to order the employer to bargain with the union, “the Board effectively circumvented the decertification procedures provided for by statute.”[19]
b. Seattle-First’s impact on the Board’s traditional
“due process” test
The rule held invalid in Seattle-First is not precisely the rule at issue in the present case.[20] Nevertheless, we find that the Court’s reasoning in Seattle-First is persuasive here. Seattle-First’s rationale was not based on a distinction between union members and nonmember unit employees voting on affiliations.[21] Rather, the Court’s essential holding was that the Board cannot discontinue an employer’s obligation to recognize a union based on the union’s affiliating with another union unless the Board determines that the affiliation raises a question concerning representation. Thus, it is clear that under the Act, as explicated in Seattle-First, an employer’s duty to recognize an incumbent union following affiliation cannot be discontinued on the basis that union members were not allowed to vote on the affiliation, unless the Board determines that depriving union members of an opportunity to vote raises a question concerning representation.
c. Does the absence of a vote of union members
on a merger or affiliation raise a question
concerning representation?
The Court in Seattle-First addressed the circumstances in which a union affiliation may raise a question concerning representation:
[A] new affiliation may substantially change a certified union’s relationship with the employees it represents. These changed circumstances may in turn raise a “question of representation,” if it is unclear whether a majority of employees continue to support the reorganized union. . . . In many cases, [however,] a majority of employees will continue to support the union despite any changes precipitated by affiliation.[[22]]
A majority of employees often will continue to support the union because, as the Court noted:
The Board has recognized that “affiliation does not directly involve the employment relation. The status of wages, working conditions, benefits, and grievance procedures is unaffected by the affiliation vote; the collective-bargaining agreement between the union and the employer remains effective until the stated expiration date.”[[23]]
More generally, a question concerning representation in relation to an incumbent union is presented when the employer has a good-faith reasonable uncertainty whether a majority of unit employees continues to support the union.[24] Evidence to show such uncertainty can include antiunion petitions signed by unit employees, statements by employees concerning personal opposition to the union, employees’ statements regarding other unit employees’ antiunion sentiments, and employees’ statements expressing dissatisfaction with the union’s performance as the bargaining representative.[25]
We find that the lack of a membership vote concerning union affiliation is insufficient to raise a question concerning representation, that is, to make it “unclear whether a majority of employees continue to support the reorganized union.”[26] A membership vote reveals employees’ sentiments on an issue. By the same token, when there is no vote, the employees’ sentiments remain unstated. Thus, unlike antiunion petitions or other expressions of employee dissatisfaction with the union, the absence of a vote indicates nothing about employee sentiment regarding support for the incumbent union.
Further, even if held, a vote limited to union members would not necessarily reflect the sentiment of a majority of the bargaining unit employees because the bargaining unit employees may not all be union members. Indeed, in some cases, only a small portion of the bargaining unit belongs to the union. When only a portion of unit employees are union members, there is less reason to think that their vote regarding affiliation would be indicative of the sentiments of the bargaining unit employees as a whole.[27] Thus, the fact that not all unit employees—and, sometimes, very few—are union members further reinforces our conclusion that the absence of a vote solely of union members on affiliation can raise no question concerning representation.[28]
Moreover, the other prong of the Board’s standard regarding union affiliations—that the employer’s duty to recognize the union does not continue when the organizational changes are so dramatic that the postaffiliation union lacks substantial continuity with the preaffiliation union—remains intact.[29] Thus, if it is determined that the postaffiliation union lacks substantial continuity with the preaffiliation union, a question concerning representation is thereby raised and the employer’s obligation to recognize the union ceases. In such an instance, the due process prong of the Board’s standard—requiring that union members vote on the affiliation—becomes irrelevant because a question concerning representation is raised regardless of such a vote.
In cases in which there is substantial continuity between the preaffiliation and postaffiliation union, the postaffiliation union is largely unchanged from the preaffiliation entity—i.e., nothing has happened to the union that would lead one reasonably to think that the employees no longer support it. Thus, when there is substantial continuity, the absence of a vote of the union members on the affiliation would not seem to render unit employee support for the union unclear, as the union has remained largely the same. Accordingly, no question concerning representation would be raised.
In sum, the absence of a vote of union members on a union affiliation does not raise a question concerning representation. Further, the requirement that union members vote on a union affiliation serves no useful purpose in light of the Board’s separate requirement that the preaffiliation union and the postaffiliation union have substantial continuity.
Accordingly, we have decided to abandon the Board’s due process requirement for union affiliations in light of the Supreme Court’s decision in Seattle-First. We therefore overrule our prior law and hold that, when there is a union merger or affiliation, an employer’s obligation to recognize and bargain with an incumbent union continues unless the changes resulting from the merger or affiliation are so significant as to alter the identity of the bargaining representative.
2. Substantial continuity
For the reasons discussed above, we reject the judge’s finding that Local 500 was not the successor of Local 623 because the merger was conducted without a vote of the members. Because the judge found that the Board’s due process requirement had not been met, he found it unnecessary to reach the question of whether lack of substantial continuity between the premerger and postmerger unions, Local 623 and Local 500, was shown.[30] We find that it was not.[31]
In determining whether there is a lack of continuity of representation after a merger or affiliation, the Board considers whether the merger or affiliation resulted in a change that is “sufficiently dramatic” to alter the union’s identity. May Department Stores, 289 NLRB 661, 665 (1988), enfd. 897 F.2d 221 (7th Cir. 1990). This may occur where “the changes are so great that a new organization comes into being—one that should be required to establish its status as a bargaining representative through the same means that any labor organization is required to use in the first instance.” Western Commercial Transport, Inc., 288 NLRB 241, 217 (1988). In assessing continuity, the Board considers the totality of the circumstances. Mike Basil Chevrolet, Inc., 331 NLRB 1044 (2000).
Applying those principles here, we find that the evidence does not show that there was a lack of continuity of representation between Local 623 and Local 500, as discussed below.
Upon the merger, members of Local 623 became members of Local 500 without having to pay any initiation or transfer fees. Referral fees remained the same as they had before the merger, and there was no change in members’ status concerning their place on the work list, their date of hire, or their date of membership. Although postmerger dues were adjusted to reflect the average dues of several of the former locals, this adjustment resulted in only a $10 increase for members of former Local 623.[32]
The hiring hall/referral system is administered in the same manner as it had been before the merger.[33] Members who had served on Local 623’s hiring hall/referral committee serve on Local 500’s referral committee, which is made up of two representatives from each of the former locals’ respective hiring hall committees.
Former Local 623 business agent John Dermody continues to
serve in that role, which includes negotiating contracts, handling grievances,
and servicing unit members. Dermody also
continues to be the contact person for employers, and he is a member of Local
500’s hiring hall procedures committee.
Dermody maintains his home office as he had before the merger, but also
operates out of Local 500’s office in
At the time of the hearing, International Representative
Louis Falzarano was in charge of Local 500’s day-to-day operations. Both before and after the merger, Falzarano
assisted Local 623 with organizing and contract negotiations. Falzarano testified that a constitution and bylaws
for Local 500 had been drafted and were awaiting approval by International President
Thomas Short. Once approved, the constitution and bylaws would be subject to
approval by a vote of the membership, and an election of officers would be
held.[34] Pursuant to the constitution and bylaws, each
of the crafts would have a representative vote on an executive board and a
delegate to the
Finally, employers continue to make benefit contributions
to the
We conclude from this evidence that merger did not result
in such a dramatic change to the
Amended Remedy
Having found that Local 500 is the successor to Local 623,
we shall order the Respondent to recognize and bargain with Local 500 as the
representative of its employees in the unit set forth in the Order. We adhere to the view, for the reasons fully
set forth in Caterair International,
322 NLRB 64 (1996), that an affirmative bargaining order is “the traditional,
appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining
representative of an appropriate unit of employees.” The United States Court of Appeals for the
An affirmative bargaining order here vindicates the
Section 7 rights of the unit employees who were denied the rights of collective
bargaining by the Respondent’s unlawful withdrawal of recognition. An affirmative bargaining order, with its
attendant bar to challenging the
The affirmative bargaining order also serves the policies
of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s incentive
to delay bargaining in the hope of further discouraging support for the
A cease-and-desist order without a temporary decertification bar would be inadequate to remedy the Respondent’s violations because it would permit a decertification petition to be filed before the Respondent had afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement. Such a result would be particularly unfair in circumstances such as those presented here, where the Respondent’s unfair labor practices are of a continuing nature and are likely to have a continuing effect.
Having unlawfully declared impasse over a change in the
scope of the bargaining unit, the Respondent made numerous unilateral changes,
including the elimination of certain unit positions and the refusal to utilize
the
For these reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the violations in this case.
We shall also order the Respondent to rescind any unilateral changes made after September 11, 2000, including the elimination of the department head positions and the refusal to use the hiring hall, and to make employees whole for any loss of wages or benefits that they may have suffered as a result of those changes. See, e.g., Strand Theatre of Shreveport Corp., supra. Whatever backpay is found to be due the former department heads and the stagehands who likely would have been hired from the Union’s hiring hall in the absence of the Respondent’s unfair labor practices shall be calculated in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Backpay resulting from other unilateral changes in terms and conditions of employment shall be calculated as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Interest on backpay shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).
We shall leave to compliance the task of determining the identity of those individuals who likely would have been referred to the Respondent had it continued to utilize the hiring hall in accordance with the 1998–2000 agreement.
ORDER
The National Labor Relations Board adopts the recommended Order
of the administrative law judge as modified and set forth in full below, and orders
that the Respondent, The Raymond Kravis Center for the Performing Arts,
1. Cease and desist from
(a) Refusing
to recognize and bargain in good faith with the Union, International
Alliance of Theatrical Stage Employees and Moving Picture Technicians and
Allied Crafts of the United States, its Territories, and Canada, IATSE, AFL–CIO,
Local 500, as the exclusive collective-bargaining representative of its employees
in the following appropriate
unit:
All employees
performing work described in Article I, Section B of the collective-bargaining
agreement between the Respondent and the
(b)
Unilaterally ceasing the application of the terms and conditions set out in the
1998–2000
collective-bargaining agreement to unit employees, including the elimination of
the department heads and the refusal to use the Union’s hiring hall, without
complying with the requirements of Section 8(d)(3) and without having first
lawfully bargained to impasse with respect to the terms and conditions of employment
that were implemented.
(c)
Insisting on changing the scope of the bargaining unit as a condition of
reaching a collective-bargaining agreement.
(d)
In any like or related manner interfering with, restraining, 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)
Within 14 days from the date of this Order, restore the terms and conditions of
employment that were in effect and applicable to employees in the bargaining
unit before the Respondent unilaterally changed the terms and conditions of
employment on September 11, 2000, including the exclusive use of the Union’s
hiring hall and restoration of the department head positions.
(b)
Make whole all unit employees for losses suffered as a result of the unlawful
changes in the manner set forth in the amended remedy section of this decision.
(c) Within 14 days from the
date of this Order, offer reinstatement to the department head positions to the
following employees: John LeBlance, Bob Davis, Daniel McMenamin, Russ Baron,
Rick Hearth, and Maureen Pena.
(d)
Recognize and, on request, bargain in good faith with the Union as the
exclusive collective-bargaining representative of unit employees with respect
to wages, hours, and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a signed agreement.
(e)
Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security
records, timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of this Order.
(f)
Within 14 days after service by the Region, post at its
(g)
Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities.
We will not
refuse to recognize and bargain
in good faith with the Union, International Alliance of Theatrical
Stage Employees and Moving Picture Technicians and Allied Crafts of the United
States, its Territories, and Canada, IATSE, AFL–CIO, Local 500, as the exclusive
collective-bargaining representative of our employees in the following appropriate
unit:
All employees performing
work described in Article I, Section B of our collective-bargaining agreement
with the
We will not unilaterally cease the application
of the terms and conditions set out in the 1998–2000 collective-bargaining
agreement to unit employees, including the elimination of the department heads
and the refusal to use the Union’s hiring hall, without complying with the requirements
of Section 8(d)(3) of the Act, and without having first lawfully bargained to
impasse with respect to the terms and conditions of employment that were implemented.
We will not insist on changing the scope
of the bargaining unit as a condition of reaching a collective-bargaining
agreement.
We will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise of the
rights listed above.
We will, within 14 days from the
date of the Board’s Order, restore the terms and conditions of employment that
were in effect and applicable to employees in the bargaining unit before we
unilaterally changed the terms and conditions of employment on September 11,
2000, including the exclusive use of the Union’s hiring hall and restoration of
the department head positions.
We will make whole all unit
employees for losses suffered as a result of our unlawful changes in the manner
set forth in the amended remedy section of the Board’s decision.
We will, within 14 days from the
date of the Board’s Order, offer reinstatement to the department head positions
to the following employees: John LeBlance, Bob Davis, Daniel McMenamin, Russ
Baron, Rick Hearth, and Maureen Pena.
We will recognize and, on request,
bargain in good faith with the Union as the exclusive collective-bargaining
representative of unit employees with respect to wages, hours, and other terms
and conditions of employment and, if an understanding is reached, embody such
understanding in a signed agreement.
The
Karen Thornton, Esq., Jennifer Burgess-Solomon, Esq., and Hector Nava, Esq., for the General Counsel.
Robert J. Janowitz, Esq., Jeffrey Pheterson, Esq., and Kimberly Seten, Esq., for the Respondent.
Mathew J. Mierzwa Jr., Esq., for the
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. This case was tried
before me in
The charge was filed on March 7, 2001, and the
complaint was issued on August 31, 2001.
In substance, the complaint alleges as
follows:
1. That the
All department heads and theatrical stage employees, (including riggers, electricians, carpenters, lighting technicians, sound technicians, fitters, loaders, unloaders, and other technicians performing work in connection with sets, props, costumes, wardrobes, audio visuals, motion pictures, radio broadcasts, commercials and rehearsals) involved in presentations at Dreyfoos Hall.
2. That the Respondent and the
3. That during the above described
negotiations, the Respondent:
(a) Insisted that it was not required to
bargain about the assignment of bargaining unit to persons outside the unit.
(b) Insisted on the elimination of the
exclusive hiring hall provision while taking the position that employees not
referred by the hiring hall would not be part of the bargaining unit.
(c) Insisted on changing the scope of the
unit.
(d) Declared an impasse when no valid impasse
had occurred.
(e) Engaged in surface bargaining with no
intention of reaching an agreement.
4. That on or about September 11, 2000, the
Respondent implemented its final proposal and made unilateral changes including
the elimination of performance pay, premium pay, guaranteed minimum pay, turnaround
pay, meal penalty allowance, overtime pay for hours worked over 8 during 1 day,
fringe benefit contributions and the use of the Union’s referral system, and
changes in timekeeping, breaktimes, and holiday pay.
5. That on or about September 11, 2000, the
Respondent eliminated certain unit classifications, including department heads,
truck loaders, and truck unloaders.
6. That since on or about September 24, 2000,
the Respondent transferred and/or assigned bargaining unit work from stage
employees and department heads to other employees and/or independent
contractors.
7. That since on or about September 24, 2000,
the Respondent has failed and refused to use theatrical stage employees and
department heads referred by the
8. That since on or about September 24, 2000,
the Respondent withdrew recognition from the
9. That since September 24, 2000, the
Respondent has changed terms and conditions of employment, has made changes in
the assignment of workers and has refused to hire people referred by the
The complaint alleges that the changes made
above, were both violations of Section 8(a)(3) and (5), as being not merely
unilaterally implemented, but also discriminatorily motivated.
On the entire record, including my observation
of the demeanor of the witnesses, and after considering the briefs filed, I
make the following
Findings of Fact
i. jurisdiction
There is no dispute and I find that the
Respondent, the Raymond F. Kravis Center for the Performing Arts, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Nor is there is a dispute that up until
January 30, 2002, International Alliance of Theatrical State Employees and
Moving Picture Technicians and Allied Crafts of the
At the hearing, all parties were notified that
Local 623 and various other local unions of IATSE were merged by the International
The Respondent denied that Local 500 is a
labor organization within the meaning of the Act. It also denied that Local 500 has any rights
to represent its employees. The Respondent’s
argument is that the procedure by which Local 623 and the other five locals
were merged into Local 500, did not provide for notice to their memberships or
for an opportunity to vote on the issue.
In order to maintain the continuity of this
story line, I will deal with the merger issue later in the decision. Suffice it to say at this point, that if it
is concluded that Local 500 is not the “successor” to Local 623, then upon the
latter’s cessation of business, there would be no prospective bargaining order
even if it is concluded that the Respondent violated Section 8(a)(5) of the
Act.
ii. alleged unfair labor practices
A. Background
The
Nevertheless, the agreement was never
challenged by the filing of any unfair labor practice charge within 6 months of
its execution and under Board law that agreement no longer can be challenged
under either Section 8(a) or (b) of the Act as being unlawful because not
supported by majority employee support at the time it was made. Route
22 Auto Sales, 337 NLRB 84 (2001). As such, the agreement, which may have originally
been built on a pile of sand, has matured into a 9(a) collective-bargaining
relationship pursuant to which the Employer may not withdraw recognition, in
the absence of a Board election, without a showing that the Union no longer
represents a majority of the employees who are covered by the agreement. Levitz Furniture Co of the Pacific, 333
NLRB 717 (2001).
At the time that the initial agreement was
executed in September 1992, there existed plans to construct additional venues
for the
The original contract, which ran from
September 1, 1992, to August 31, 1997, provided for an exclusive hiring hall to
provide various categories of backstage employees to Dreyfoos Hall. But although the Respondent seems to argue
that the agreement, and its successor agreement, covered only those people who
Local 623 referred for employment that is not how I read the contract. The initial contract covers certain job classification
and work descriptions within a defined geographic space, and in this sense is
typical of most labor contracts. It also
provides for an exclusive hiring hall arrangement by which those jobs will be
filled as the need arises. But the fact
that a contract contains such a mechanism for manning jobs, hardly means that
it covers only those people who are referred to those jobs and there is nothing
in either the original contract or its successors which suggest otherwise.
The agreement covers the categories of
carpenters (making and/or assembling sets), electricians (dealing with sound
and light), loaders (who unload and unload trucks), flymen/riggers (dealing
with the operation of sets and scenery during a performance), props (dealing
with relatively small objects used by performers during a show), and wardrobe
(self-explanatory). All of these people,
as opposed to front of house people, such as ushers, box office people, ticket
takers, are covered by the agreement.
The original and successor agreement cover
essentially two types of people. The
agreement provides for utilization of six department heads, one for each of the
above noted categories. The department
heads, although they originally got their jobs through Local 623’s hiring hall,
have in fact evolved into regular part-time employees who worked on a steady
basis at the
All other stagehands, during the period before
2001, had been sent from Local 623’s hiring hall and none hade any expectation
of regular employment at this particular venue. They may work 1 day, a year, or
many days a year depending on the luck of the draw. In fact, they are sent to many other theatres
and concert halls within the
The season for
Local 623, as noted above, operated a hiring
hall but not all of the people it refers for employment were union members. Indeed because
With respect to the hiring hall, Local 623 had
a group of about 300 people who are placed on an A list, a B list, and a C list. The A list consists of persons who have
worked at least 2000 hours within the craft and jurisdiction of Local 623
during a preceding 2-year period. These
people, of whom there are about 100, are referred to jobs first. The B
list consists of persons who have worked at least 1000 hours within the craft
and jurisdiction of Local 623 during the same period. This group, which consists of about 30
people, is referred after the A list
is exhausted. The C list consists of everyone else who applies
and who has shown qualifications for one or more of the job classifications
covered. The C list people are referred after the A and B lists are exhausted.
It should be noted that there also exist a
number of nonunion companies who contract with theaters and concert halls in
During the term of the first 5-year contract between Kravis and Local 623, the Cohen Pavilion was finished in or