Musical Arts Ass'n v. National Labor Relations Board
Musical Arts Ass'n v. National Labor Relations Board
Opinion of the Court
JUDGMENT
This case was considered upon the record from the agency and the briefs of the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. R. 34(j). The court has afforded full consideration to the issues presented and has determined that they do not warrant a published opinion. See D.C.Cir. R. 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the petition for review be denied and the cross-application for enforcement be granted.
The Musical Arts Association operates the Cleveland Orchestra. Its musicians are members of the American Federation of Musicians, an international labor union, and Local No. 4, a subsidiary thereof. The National Labor Relations Board found that the unions—parent and local—are joint collective-bargaining representatives for the musicians. The Board further concluded that the Association violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (5), by refusing to recognize or bargain with the Federation. MUSICAL ARTS ASS’N, 356 N.L.R.B. No. 166, 2011 WL 2561382, at *30-31 (June 28, 2011).
Contrary to the Association’s contentions, two or more unions may serve as joint collective-bargaining representatives for a single unit of employees. NLRB v. Nat’l Truck Rental Co., 239 F.2d 422, 425 (D.C.Cir. 1956); see also 29 U.S.C. § 159(a). Those representatives can divide—either expressly or in practice—their bargaining duties in order to accommodate local and national interests. Radio Corp. of Am., 135 N.L.R.B. 980, 983 (1962); see also Reynolds Metal Co., 310 N.L.R.B. 995, 999 (1993). If a “workable pattern of bargaining” exists, Radio Corp., 135 N.L.R.B. at 983, an employer may violate § 8(a)(5) “by attempting to deal separately with loeal[ unions] on matters which are properly the subject of national negotiations,” M & M Transp. Co., 239 N.L.R.B. 73, 76 (1978).
The central issue in this case is whether substantial evidence supports the Board’s findings that (1) the Federation jointly represents the musicians, and (2) a workable pattern of bargaining exists. In reaching its conclusions, the Board looked to the parties’ contracts, their bargaining history, their past interactions, and general industry practices. See MUSICAL ARTS ASS’N, 356 N.L.R.B. No. 166, 2011 WL 2561382, at *20-30. A brief review of the record indicates that each of those considerations
The Association makes much of the fact that its bargaining relationship with the Federation arose in the context of multiemployer bargaining. While participation in multi-employer bargaining is voluntary, withdrawal from such arrangements does not affect the presumption of majority status that attaches to unions recognized therein. Holiday Hotel & Casino, 228 N.L.R.B. 926, 928 (1977). The Association also contends that it did not waive its right to negotiate with a single bargaining representative. The claim is as factually dubious as it is irrelevant. The waiver principle that the Association attempts to invoke allows “a union [to] waive a member’s statutorily protected rights,” so long as the waiver is clear and unmistakable. Metro. Edison Co. v. NLRB, 460 U.S. 693, 705, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983) (emphasis added); see also Plumbers & Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744, 751 (D.C.Cir. 1992). Section 9(a), moreover, protects the musicians’ right to choose their bargaining representatives; the Association fails to explain how it could possibly restrict that right via a waiver doctrine. See 29 U.S.C. § 159(a).
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.
Reference
- Full Case Name
- MUSICAL ARTS ASSOCIATION v. NATIONAL LABOR RELATIONS BOARD, Respondent American Federation of Musicians of the United States and Canada, AFL-CIO, Intervenor
- Status
- Published