Lancaster Symphony Orchestra

National Labor Relations Board - Board Decisions

Nov 12, 2014

361 NLRB No. 101 (N.L.R.B. 2014)

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 BOARD2
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.