Ben Culter Orchestras

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 740 (N.L.R.B. 1974)

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