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Raymond F. Kravis Center for the Performing Arts, Inc. v. National Labor Relations Board

December 30, 2008

THE RAYMOND F. KRAVIS CENTER FOR THE PERFORMING ARTS, INC., PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT



On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

The opinion of the court was delivered by: Kavanaugh, Circuit Judge

Argued October 24, 2008

Before: ROGERS, GARLAND, and KAVANAUGH, Circuit Judges.

This case arises out of a labor dispute between the Raymond F. Kravis Center for the Performing Arts in West Palm Beach, Florida, and Local 623 of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians and Allied Crafts. Kravis and the union entered into collective bargaining agreements that established an exclusive hiring hall arrangement: Kravis would use only employees referred by Local 623 to perform all stagehand work at Kravis's Dreyfoos Hall. After the agreements expired, Kravis declared impasse during contract renegotiations, withdrew recognition from the union, and did not request further referrals from it.

The National Labor Relations Board ruled that Kravis violated §§ 8(a)(5) and (1) of the National Labor Relations Act by, among other things, unilaterally changing the scope of the bargaining unit and withdrawing recognition from Local 623. The Board also determined that, as a result of a union merger, Local 500 was the successor union to Local 623. It ordered Kravis to recognize and bargain with Local 500 as the exclusive representative of Kravis's stagehand employees. Kravis filed a petition for review in this Court. We deny the petition for review and grant the Board's cross-application for enforcement.

I.

The Kravis Center for the Performing Arts is a concert hall and theater complex in West Palm Beach, Florida. In 1992, Kravis and Local 623 of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians and Allied Crafts entered into a five-year collective bargaining agreement. The agreement provided for an exclusive hiring hall arrangement under which Local 623 would provide the stagehand employees at Kravis's concert venue, Dreyfoos Hall, as the need arose -- specifically, carpenters, electricians, flymen and riggers, props, and wardrobe employees. In 1998, the parties renewed the contract for two more years, effective until June 2000.

In April 2000, Kravis notified Local 623 of its intent to terminate the 1998 agreement upon its expiration. The parties negotiated from May to September 2000. After various proposals were bandied back and forth, Kravis submitted its final bargaining proposal on September 9, 2000. The proposal included discretionary use of Local 623 referrals, an unfettered right to subcontract stagehand work, and contract terms that would apply only to Local 623-referred workers, not to other stagehand workers at Dreyfoos Hall.

On September 11, 2000, Kravis declared impasse and unilaterally implemented its final proposal. On September 24, 2000, Kravis withdrew recognition from Local 623, and thereafter requested no further referrals from Local 623 for stagehand employees at Dreyfoos Hall.

In March 2001, Local 623 filed unfair labor practice charges. After an investigation, the NLRB's General Counsel filed a complaint.

Meanwhile, in February 2002, Local 623 merged with five other local theater-employee unions in south Florida to form a new Local 500. Local 623 members did not vote on the union merger.

After a hearing on the General Counsel's complaint, an administrative law judge found that Kravis violated §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act by, among other things, unilaterally changing the scope of the bargaining unit to exclude non-referred stagehands and by withdrawing recognition from Local 623. However, the ALJ concluded that Local 623 ceased to exist as a result of the 2002 merger that formed Local 500 and that Kravis's bargaining obligation had ended on that date. All parties filed exceptions.

The Board affirmed the finding that Kravis violated §§ 8(a)(5) and 8(a)(1). It reasoned that the parties' relationship, based on the agreements in effect since 1992, constituted a § 9(a) collective bargaining relationship, rendering unlawful Kravis's unilateral change to the bargaining unit and withdrawal of recognition from the union. The Board also rejected the ALJ's determination that the 2002 union merger terminated Kravis's bargaining obligation. Overruling its traditional due process requirement for union mergers in response to the SupremeCourt's decision in NLRB v. Financial Institution Employees of America, Local 1182 (Seattle-First), 475 U.S. 192 (1986), the Board concluded that Local 500 was the successor to Local 623 notwithstanding the absence of a vote by Local 623 members. Accordingly, the Board ordered Kravis to recognize and bargain with Local 500 as the representative of its stagehand employees.

Kravis has petitioned for review, and the Board has filed a cross-application for enforcement. We review the Board's decision to determine whether its factual findings are supported by substantial evidence and whether the Board otherwise acted arbitrarily and capriciously. See Beverly ...


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