Ben Culter OrchestrasDownload PDFNational Labor Relations Board - Board DecisionsSep 27, 1974213 N.L.R.B. 740 (N.L.R.B. 1974) Copy Citation 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ben Cutler Orchestras , Joe Carroll Orchestras,' Em- ployer Petitioners and Associated Musicians of Greater New York Local 802, American Federation of Musicians of the United States and Canada, AFL-CIO. Case 2-RM-1669 September 27, 1974 DECISION AND ORDER DISMISSING PETITION Upon a petition 2 duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Ralph Wink- ler on May 3, 1973. Thereafter, the Regional Director for Region 2 issued an order transferring this proceed- ing to the National Labor Relations Board. On Sep- tember 10, 1973, the National Labor Relations Board, through the office of the Executive Secretary, issued an Order Reopening Record and Remanding Pro- ceeding to Regional Director. Pursuant to said order further hearings were held on October 15, November 26 and 27, 1973, and March 11, 1974, before Hearing Officer Don T. Carmody. Thereafter, the Regional Director for Region 2 issued an order transferring this proceeding to the National Labor Relations Board. The Union filed a brief with the Board, and the Peti- tioners filed a statement. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, the Na- tional Labor Relations Board finds: 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to repre- sent certain employees of the Employers. 3. No question affecting commerce exists concern- ing the representation of employees of the Employers within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reasons: An employer may raise a question of representation under Section 9(c)(1)(B) of the Act if he shows that the union has claimed representative status in an appro- priate unit and the Employer has rejected or otherwise questioned that status.' Here the Petitioners and Lo- cal 802 agree that Local 802 is the recognized bargain- ing agent for the employees of the Petitioners. The dispute lies in whether Local 802 claims to represent the employees when they are performing outside the Local's territorial jurisdiction. In the interim between the original and the re- opened hearings, the Petitioners individually signed a collective-bargaining agreement with Local 802.1 The contract provides that the Employer recognizes Local 802 as the bargaining representative for sidemen in the single engagement club date field within the terri- torial jurisdiction of the Local. However, it also pro- vides that the Local recognizes the Employer as the employer of all sidemen for all jobs emanating within the territorial jurisdiction of the Local. In addition the agreement requires the employer to contribute to the pension and welfare fund "per engagement per- formed within the territorial jurisdiction of the UNION, or any other place as directed by the EM- PLOYER." The contract further provides for mileage fees and per diem to be paid by the Employer for engagements outside the territorial jurisdiction of Lo- cal 802. The Parties stipulated that Ben Cutler's testi- mony would be the same as Carroll's. The Petitioners, by entering into a collective-bar- gaining agreement which recognized Local 802 and provided coverage to employees while working out- side the geographical jurisdiction of the Local, take a position wholly inconsistent with their attempt to es- tablish that a question of representation presently ex- ists.s The dispute herein is, thus, not one which is resolvable through a representation proceeding. ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. ° Emp Exh 25, a copy of the agreement between Local 802 and Joe Carroll Orchestras, was marked for identification but neither accepted nor rejected pending submission of the original The original was not produced As the uncontradicted testimony of Joe Carroll identified the exhibit as a true copy of the contract , we hereby accept it into evidence 5 Ward Trucking Corp, 160 NRLB 1190 (1966) 1 The names of the Petitioners appear as amended at the hearing A motion was granted removing Bill Harrington Orchestras as a Petitioner 2 The petition was thrice amended prior to hearing , and was amended again during the hearing 5 United States Gypsum Company, 157 NLRB 652, 654 (1966) 213 NLRB No. 109 Copy with citationCopy as parenthetical citation