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September 2, 2014IM -
by Jennifer Garner, AFM Counsel
On March 14, I filed a charge against the Saint Paul Chamber Orchestra with Region 18 of the National Labor Relations Board (NLRB), alleging unlawful interference with the administration of a labor organization. The unfair practice arose subsequent to the employer’s appointment of a musician in the orchestra to the position of senior director of artistic planning. The participation of this upper-level manager in meetings of the bargaining unit had a chilling effect on the exercise of rights guaranteed under the National Labor Relations Act.
Attorneys for both sides submitted position statements on the issue in dispute, namely the circumstances under which an employer could be held liable for the intraunion conduct of its managerial employee. In May, the regional director referred the case to the NLRB Office of the General Counsel, Division of Advice, for further consideration. On August 8, the Division of Advice recommended the issuance of a complaint against the Saint Paul Chamber Orchestra, unless the employer agrees to a settlement to be proposed by Region 18.
This decision was based upon the Board’s analysis in the landmark case referred to as Power Piping Company, 291 NLRB 494 (1988). In accordance with Power Piping, the considerations that serve as a guide in determining the lawfulness of supervisory participation in internal union affairs include: 1) the nature of the supervisory position and how completely the responsibilities of the particular position identify the holder with management; 2) the apparent permanence of the supervisory position and how high it is in the management hierarchy; 3) the extent to which the supervisory position is properly included or excluded from the bargaining unit; and 4) the nature of the supervisor’s participation in internal union affairs. This list is nonexhaustive, and other relevant circumstances may be considered as well.
Applying these factors to the Saint Paul Chamber Orchestra, the general counsel’s office found that the senior director of artistic planning is clearly a permanently employed, upper-level manager who is aligned with the employer, that his participation in orchestra meetings interfered with the administration of the union and the employer acquiesced, and that the union had tried to reach a reasonable compromise, but management’s insistence on having unfettered access to orchestra meetings was unreasonable. Under the totality of circumstances, the employer’s conduct has been unfair.
Region 18 will draft a settlement agreement for the parties in the hope that further administrative and judicial proceedings can be avoided. The settlement will be conditioned upon the absolute right of the AFM and Local 30-73 (St. Paul-Minneapolis, MN) to determine the circumstances and extent to which the senior director of artistic planning may participate in orchestra meetings. If the settlement conditions are not accepted by the employer, a complaint is to be issued.