American Opera Musical Theatre

National Labor Relations Board - Board Decisions

Jan 8, 2001

332 N.L.R.B. 1627 (N.L.R.B. 2001)

AMERICAN OPERA MUSICAL THEATRE 1627
American Opera Musical Theatre Company and As-
sociated Musicians of Greater New York, Local
802, AFM. Case 2–CA–32154
January 8, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On March 1, 2000, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions, a brief in support of exceptions, and a
reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board orders that the
Respondent, American Opera Musical Theatre Company,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

1 The Respondent has excepted, inter alia, to the judge’s failure to
find that the Union never identified to the Respondent any geographical
boundaries for its proposed bargaining unit. The judge found in the
remedy and the recommended Order that a unit comprised of the Re-
spondent’s musicians is an appropriate unit. The unit found appropriate
by the judge is the unit that the Union sought. Indeed, the record shows
that the Respondent did not challenge the Union’s demand for recogni-
tion in a unit of its musicians at the time the demand was made.
Member Hurtgen sets forth the following views regarding the com-
position of the unit. Prior to the withdrawal of recognition, the Re-
spondent had recognized the Union as the representative of all of its
musicians. There were nine such musicians. The General Counsel
alleged that the appropriate unit included musicians, contractors, and
librarians. There is no evidence that the Respondent employs librari-
ans. At the time of recognition, one of the nine musicians was a con-
tractor, i.e., she was in charge of seeking out musicians for hire. There
is no contention that she was a supervisor. On a different issue, al-
though the Respondent’s answer denied the appropriateness of the unit,
it appears that such denial was intended to reflect the Respondent’s
position that the unit should not include “student-musicians” who are
retained when the Respondent’s opera company travels to other cities.
Even assuming that those persons are employees, the recognition did
not cover them, and the Union does not seek them. Thus, the unit in-
volved here does not cover them. Finally, although the Respondent
now takes the position that the “student musicians” must be a part of an
appropriate unit, it points to no evidence to support this view.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.

Mindy Lando, Esq., for the General Counsel.
Neil Capobianco, Esq. (Vedder, Price, Kaufman & Kammholz),
for the Respondent.
Harvey Mars, Esq. (Liebowitz & Mars), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard by me in New York, New York, on December
1, 1999. The complaint here, which issued on July 30, 1999,
and was based on an unfair labor practice charge that was filed
on April 26, 1999, by Associated Musicians of Greater New
York, Local 802, AFM, the Union, alleges that American Opera
Musical Theatre Company, the Respondent, withdrew recogni-
tion from the Union as the exclusive bargaining representative
of its employees on about December 11, 1998,1 in violation of
Section 8(a)(5) of the Act.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it has been engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
The Union represents approximately 11,000 professional
musicians in the New York metropolitan area. There is no
doubt, and I find, that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE FACTS
The Respondent is engaged in the operation of a small
chamber opera company. It was formed in 1995 for the pur-
pose of giving singers and musicians experience in a field
where it is difficult to obtain professional experience. For its
performances, the Respondent usually hired singers and ob-
tained musicians from local music schools. The procedure that
was followed by the Respondent and, apparently, other similar
groups was to hire a contractor and she/he then chooses the
musicians that the company will use for the performances. The
Respondent was scheduled to perform La Boheme at Staten
Island College in Staten Island, New York, on the evening of
October 31 and the afternoon of November 1; the contractor for
this job was Marcia Havivi. On October 28, the college noti-
fied Diana Corto, the Respondent’s artistic director (the indi-
vidual who initiated and operates the Respondent) that it was
canceling the October 31 performance because of poor ticket
sales. Timothy Dubnau, the Union’s director of organizing,
testified that at the end of October (sometime between October
28 and 31) he received a call from Havivi, a member of the
Union, saying that some of the musicians at the Staten Island
job2 were complaining about the pay and working conditions at
the job. At about that time he called Corto, but she did not
1 Unless indicated otherwise, all dates referred to relate to 1998.
2 All the musicians on the job were union members at the time.
332 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1628
return his call until shortly before the Staten Island performance
was to take place. In this call, Dubnau told Corto that “several
of the musicians had complaints and we were interested in
coming up with an agreement for the upcoming performance at
the College of Staten Island.” He also told her that all the mu-
sicians were union members, and that they were complaining
about the low pay, and that the cancellation of one performance
reduced their pay even more “and I wondered if we could work
out an agreement where we got some of the pay restored, and
also having some pension and health benefits paid on the per-
formance that was about to take place at Staten Island.” Corto
responded that she had an extremely small company and did
not have any more money to spend. Because of the late date:

I gave her another idea, an alternative, which was basically
we would agree to have the job go on completely nonunion
for not one more penny in wages . . . and that in exchange, for
that she would sign a recognition agreement and she’d agree,
when we both had more time, since this was such a last min-
ute thing, to actually sit down and negotiate.

Corto told him that she was angry at Havivi and the musicians
for calling him and that she would not hire some of them again.
In light of this statement, Dubnau insisted on a primary hiring
list to ensure that the musicians were not punished for calling
him. He told her that since she was a small company the Union
had a procedure to deal with such companies that was fair to
the companies, the musicians, and the Union:

Since so many of our members make a living in the major
halls, if we allowed one employer to come in for less than
scale wages there it would be damaging to us because it
would create a precedent and ultimately you would have a
downward pressure on wages for so many musicians who
make a living there.

So I basically explained to her what we call a fair competition
clause, which essentially carves out the major halls3 and says
that the employer agrees to pay the freelance promulgated
Local 802 wage rates for the halls. And in exchange for that
agreement I told her that we would be willing to be extremely
flexible in the smaller halls where I understood she did most
of her work.

He also told her that the musicians at the Staten Island job were
prepared to refuse to work unless there was an agreement with
the Union. Corto told him that there was no way that she could
increase the pay for the Staten Island performance, but she
agreed to fax him a statement saying that she recognized the
Union, that she would place the musicians at that job on a pri-
mary hiring list, and that she would enter into negotiations soon
after the performance was over. Dubnau told Corto that she
had to respond by 9 a.m. on October 31. Dubnau then faxed
the following letter, dated October 30, to Corto:

This will confirm our conversation today that no later than
9AM on October 31, 1998, you will fax a letter to Local 802,
which agrees to the following:

3 For example, Carnegie Hall, Lincoln Center, and Town Hall are
considered “major halls.”
1) That no later than November 30, 1998 you will
agree to enter into good faith negotiations with Local 802
for a collective bargaining agreement with respect to all
terms and conditions or employment, including wages and
benefits.

2) That all 9 musicians (excluding the conductor) who
are performing on the engagement on November 1, 1998,
will be given the right of first refusal for all future work,
and shall be placed on a Primary Hiring List for that pur-
pose.

Local 802 understands that your group may not have the
funds sufficient to pay normal union scale; we look forward to
entering into meaningful and amicable negotiations with you
for your future work.

Apparently, sometime on November 1, Corto faxed to Dubnau
an undated letter stating:

I shall be very pleased to continue negotiations I have already
begun with Local 802 to enter into a collective bargaining
agreement.

The musicians who are performing on the engagement on
November 1, 1998, will be placed on a primary hiring list for
future work, and their names, addresses and telephone num-
bers should be provided to me so that I have means of con-
tacting them.

Thank you for your consideration. I look forward to meeting
you soon.

By letter dated November 6, Dubnau wrote to Corto:

Pursuant to our agreement articulated in your letter faxed on
November 1, 1998, Local 802 would like to schedule a meet-
ing with you to begin negotiations for a collective bargaining
agreement. Please let me know when you would like to meet.
I understand you are busy producing a concert in Kingston,
NY on November 21st, so we can meet soon after.

I look forward to reaching an agreement with your organiza-
tion in the near future. I look forward to your response.

Corto testified that she first heard from Dubnau at about 6
p.m. on October 31, while at the College of Staten Island re-
hearsing for the opera scheduled for the following day. He said
that he was a representative of the Union and that the musicians
at the Staten Island job were going to strike the next day be-
cause the Saturday performance was canceled and they were
not paid for the day. She told him that the college had canceled
the performance and she was negotiating with the college to get
some money for the canceled performance. She also said that it
would not be fair for them to strike because it would put the
Company out of business as they needed the proceeds from the
November 1 performance to cover their expenses for their up-
coming tour. Dubnau told her that he was going to send a fax
to her home and “If I don’t have it back to me by 9:00 the next
morning the musicians are going out on strike.” She said:
“Look, you’re not giving me any time, we’re not going to finish
here until midnight and I have to have time to consult with
people.” Dubnau repeated that unless her response was on his
AMERICAN OPERA MUSICAL THEATRE 1629
desk by 9 a.m. she would not have a performance the next day
and that he wanted it returned exactly the way that he had writ-
ten it. Corto testified that in this telephone conversation, Dub-
nau did not say that he represented a majority of the musicians
and never said that he wanted her to recognize the Union.
Corto testified further that she returned home that evening after
midnight and Dubnau’s fax was in her machine. She made
some changes and returned it to Dubnau, as set forth above.
In explaining her use of the words “continue negotiations”
Corto testified, “I referred back to a meeting I had in 1996, to
the man I had met at the union at that time, which I considered,
in my understanding is a type of negotiation.” In this regard,
she testified that in June 1996, a representative of the Union
approached her:

[He] said he had seen our review in the New York Times and
that he wanted me to look at some materials from Local 802.
And if ever I were in a position to enter into an agreement
with them, I should call him and he’d try to work something
out that would be affordable for me. And that was the end of
it.

Corto testified that in her understanding, a primary list contains
numerous names for the employer to choose the ones that are
best for a particular job. “A primary list is not an exclusive list,
and I never would have agreed to an exclusive list.” For that
reason, in her November 1 fax to Dubnau, she agreed to place
the musicians on a primary list, and that is why she eliminated
the right of first refusal requested in Dubnau’s fax. Further, she
testified that in the telephone conversation with Dubnau she
told him that she would give them two performances near the
New York area: “More future work, not all future work.”
Shortly after the Staten Island performance, Respondent had
scheduled performances in Kingston, New York, Maryland,
and some other further locations. Dubnau testified that Corto
gave the right of first refusal to the Staten Island musicians on
the primary hiring list for the Kingston and Maryland perform-
ances. Some of these musicians complained to him about the
low pay and the lack of transportation to these performances.
He had “amicable” discussions with Corto about these subjects
and recollects that she agreed to supply a van to transport the
musicians to the performances and to provide hotel rooms, two
musicians to a room. He also testified that they agreed on the
wages that the musicians were to be paid. Corto testified that
Dubnau called him after the Staten Island performance and said
that the musicians wanted $200 a performance and their hotel
and travel costs paid for the Kingston performance; they agreed
that she would pay them $100 a performance and pay the hotel
and transportation, but that was it, she would not use these mu-
sicians again, and Dubnau made no objection. Dubnau testified
that she never said that to him. She testified that she did not
want to use the Staten Island musicians at any subsequent per-
formance because “they were horrible. I mean I was so embar-
rassed.” Dubnau told her that she had to use them, and she
decided to use them for Kingston and Maryland, and “that’ll be
the end of it” and she would not use them again. She used
some of the Staten Island musicians and “the result was a series
of disastrous performances.”
Dubnau testified that the Union’s bargaining position with
Corto was identical to its position with other small musical
companies:

[B]asically, we wanted to protect the integrity of our scales at
the major halls, and we didn’t want one employer to get a bet-
ter deal than another employer. We wanted to maintain an
even playing field with the major halls, and in exchange for
that we would be extremely flexible on nonmajor halls.

He testified, for example, that the Union’s proposal had a low
scale together with low payments for health and welfare bene-
fits, as the Union’s opening proposal. Joseph Eisman, an or-
ganizer for the Union, and Mikael Elsila, senior organizer for
the Union, represented the Union at a bargaining session with
Corto on about December 8. Eisman testified that Elsila de-
scribed the process of collective bargaining to Corto—that each
side began with their opening proposals and responded to each
of the other parties’ proposals. Elsila gave Corto a copy of the
Union’s “boilerplate collective bargaining agreement” in line
with Dubnau’s testimony stated above. Elsila then went over
the contract “point by point.” Corto said that she was not a
well-financed group and could not afford some of the terms in
the contract, and Elsila said on a number of occasions that these
were just their opening proposals. Corto did not make any
counterproposals and said that she would get back to them and
left. Elsila testified that at this meeting he explained the Un-
ion’s proposal point by point to Corto and said that he would
welcome a counterproposal. He said that the fair competition
clause (referred to in Dubnau’s testimony) and the primary
hiring list were of special importance to the Union, but the
Union would offer her a low freelance scale, and he stressed
that this was their opening proposal. Corto left without making
a counterproposal.
Corto testified that when she returned from the tour she had a
couple of messages from Elsila asking her to come to the Union
“for a meeting and just to meet with us.” He then called her
and asked her to come for just 10 minutes so they could meet
and have a cup of coffee, and she agreed to go. Elsila testified,
“That does not sound like something I said . . . I could not
imagine saying that.” When she got to the meeting she was
surprised because “It was anything but a casual meeting.” El-
sila, Eisman, and some musicians were there and they handed
her a contract and read it to her. Elsila then asked her, “Would
you be prepared to sign it now?” She said that the contract was
in conflict with the company’s mission of training musicians, it
was above their budget, and she would not enter into an agree-
ment without consulting a lawyer. She asked them if they ex-
pected her to pay the same rates as the Metropolitan Opera and
the New York Philharmonic, because that was absurd, and El-
sila said that there was no flexibility in those rates. They told
her that they knew that she was going to perform in Town Hall
and that they wanted her to pay the contract rates there, al-
though Elsila testified that, at that time, he does not believe that
he knew that she had a Town Hall concert scheduled. She said
that she had a contract to perform there and there was no way
that she could afford to pay those rates, and she left.
Elsila testified that the next thing he heard from Corto was
messages that she left on his voice mail, which he played for

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1630
Dubnau. The first one on December 9 said that she could not
afford the freelance rates, the first call list was unacceptable,
and that she would not negotiate further with those provisions.
Corto testified that she would not have used the terms “first call
list” or “freelance rate.” The next message on the following
day said that she was so nervous that she broke her foot and
“was not in a position to negotiate with the Union.” She was
struggling to pay her bills, and that Havivi and Tara Chambers,
another musician, were troublesome people. She was suspend-
ing further negotiations; she does not have the money. She
testified that what she said about Havivi and Chambers was that
they were antagonistic people and that she does not remember
saying that she was suspending negotiations. On December 14
her message said that she would rather close down than deal
with the Union.

On December 10, Corto sent the following fax, inter alia, to
Elsila:

I was not aware that you invited me to a meeting where musi-
cians and other staff would be present. I would have appreci-
ated knowing that in advance of my arrival to meet with you.

Preliminarily, there is a matter that requires clarification. Tim
Dubnau insisted that I give him a letter, upon threat he would
call a strike, in which I would give the Staten Island musicians
priority for the dates that were forthcoming in Kingston and
Rockville. Tim, in fact, dictated the letter that he insisted I
submit to him. I gave the musicians priority for those dates
only.4

Other terms you proposed would force us to close our doors.
We could not operate under your proposals.

We are not in a position to enter into a Collective Agreement
and I can consider this only for a later date in the future. Un-
der no conditions will I meet with musicians from Staten Is-
land again, and I shall not be able to attend any meeting in
January. We lack the budget and resources at this time.

Dubnau testified that in February 1999 he learned from his
members that the Respondent had a concert scheduled for
Town Hall, a major hall under the Union’s contracts, for Febru-
ary 28, 1999, and that the Staten Island musicians who he
claims were placed on the primary hiring list by Corto were not
hired for that job. He sent representatives to the theatre to
speak to the musicians who were hired and threatened to strike
the performance. As the performance was coproduced by the
Respondent and Town Hall, he discussed the matter with repre-
sentatives of Town Hall, and they settled the dispute. Town
Hall gave the Union a check for $1950;5 the nine musicians on
the Respondent’s primary hiring list were to receive $150 each
and the musicians performing on February 28, 1999, were to
receive $75 each of this amount. The Union agreed not to
strike the February 28 performance and Town Hall agreed to
use its best efforts to have the Respondent continue negotia

4 Dubnau testified that Corto never proposed that limitation nor did
he ever agree to it.
5 The Respondent paid $1000 of this amount.
tions with the Union for all future work and to advise the Re-
spondent that unless it enters into a contract with the Union, the
Union will strike all upcoming performances by the Respon-
dent at Town Hall.
The Respondent had another concert scheduled at Town Hall
in April; prior to that date, the representatives of Town Hall
told Corto that they wanted her to meet with the Union before
they would publicize the concert, and the parties met sometime
in March. Present for the Union were Dubnau, Eisman, and the
Union’s attorney; present for the Respondent were Corto and
her attorney. Dubnau testified that at this meeting he said that
the major halls rates had to be paid in order to protect their
members, but they were very flexible about the nonmajor hall
rates. He also insisted that she go back to using the musicians
on the primary hiring list. He does not remember the Respon-
dent making any counterproposals, and the meeting ended.
Eisman testified that at the beginning of this meeting the Union
notified Corto that its position was that she was required to
employ the musicians on the primary hiring list unless the par-
ties could come to an agreement that would affect this issue,
but they never did. Corto testified that there was a “strenuous
discussion” about the primary hiring list at this meeting. The
Union insisted that she use all the musicians on the list and she
said that she would not use incapable musicians. They asked
whether she was claiming that none of them was capable and
she said that perhaps one was capable. The Union was initially
insistent that she use these musicians and then proposed that
she use half of them for each performance. She was not agree-
able to this and the meeting ended without an agreement.

By letter dated April 28, 1999, Respondent’s counsel wrote
to the Union’s counsel:

Although we do not consider Diana Corto’s fax to Tim Dub-
nau on November 1, 1998 to have been a conferral of recogni-
tion upon Local 802 of the American Federation of Musi-
cians, to the extent it may be deemed such a conferral, it is
hereby withdrawn on the grounds that American Opera Musi-
cal Theatre Company, Inc. currently employs no musicians or
other employees in view of the fact that Sunday’s opera pro-
duction is over.
IV. ANALYSIS
There are some credibility issues that need to be resolved be-
tween certain testimony of Dubnau and Elsila and the testimony
of Corto on the same subject. I have no difficulty in resolving
this conflict in favor of Dubnau and Elsila. They appeared to
be testifying in an honest and direct manner and appeared to be
willing to admit to facts not helpful to their case. Corto, on the
other hand, was hesitant to make any admissions that would
assist the General Counsel or the Charging Party. In addition,
on cross-examination, she attempted to explain everything,
often going on and on, rather than simply answering the ques-
tion. Finally, much of the testimony of Eisman, Elsila, and
Dubnau, especially regarding the negotiations, was reasonable.
It would be perfectly understandable for the Charging Party, in
negotiations, to insist upon maintaining the rate that is paid to
the musicians who appear in the major halls in order to protect
these wages, while having a lot of flexibility in negotiations
AMERICAN OPERA MUSICAL THEATRE 1631
with a small employer, for other halls. Additionally, I do not
credit Corto’s testimony wherein she attempts to explain her
use of the words “continue negotiations I have already begun
with Local 802” by relating it to an incident that allegedly oc-
curred in 1996 when she met a representative of the Union who
gave her some union material and told her that if she was ever
able to enter into a contract with the Union, she should call him
and he would try to work out an affordable contract for her.
Initially, I note that Corto’s fax to Dubnau states, inter alia: I
shall be very pleased to continue negotiations I have already
begun with Local 802 to enter into a collective bargaining
agreement.” Even if I were to credit Corto’s testimony about
meeting the Union’s representative in 1996, that meeting only
involved a general discussion of possible future action, not
negotiations and, by no means, negotiations “to enter into a
collective bargaining agreement.” I should also note that
Corto’s testimony about this meeting with a union representa-
tive in 1996 does not sound like the approach that this Union
would use, in leaving it up to the employer to call them when it
is ready to enter into a contract. If it were, I doubt that the Un-
ion would have such a large membership. Rather, I find that
the more likely and reasonable interpretation of her words
“continue negotiations” in the November 1 fax referred to the
discussions the night before between Dubnau and Corto. These
discussions were extensive enough to be considered negotia-
tions to be continued, pursuant to Corto’s fax.
By fax to the Union on December 10, Corto notified them
that she would no longer meet with the Union. By letter dated
April 28, 1999, counsel for the Respondent notified the Union
that it does not feel that it recognized the Union, but if its ac-
tions are deemed to constitute recognition, such conferral is
withdrawn. After conferring recognition and engaging in col-
lective bargaining, a respondent is forbidden under Section
8(a)(5) and (d) of the Act from withdrawing recognition and
refusing to bargain with the union; it must bargain for a reason-
able time during which the relationship can be given a fair
chance to succeed. Franks Bros. Co. v. NLRB, 321 U.S. 702,
705 (1944). The ultimate issue herein is therefore whether the
Respondent recognized the Union on about October 31; if it
did, its subsequent withdrawal of recognition was unlawful.
The Respondent defends that there was never a proper demand
here because the Union never specifically said that it wanted
the Respondent to recognize it as the representative of its em-
ployees, and never demonstrated to the Respondent its majority
status among the unit employees.
As for the initial defense, the Respondent defends that there
was no proper request for recognition because of the lack of the
word “recognize” and because proof of majority status was
never proffered to Corto. I reject this defense for a number of
reasons. The Board has often stated, as it did in Al Landers
Dump Truck, Inc., 192 NLRB 207, 208 (1971):

The Board and the Courts have repeatedly held that a valid
request to bargain need not be made in any particular form, or
in haec verba, so long as the request clearly indicates a desire
to negotiate and bargain on behalf of the employees in the ap-
propriate unit concerning wages, hours and other terms and
conditions of employment.

The Supreme Court, in Columbian Enameling & Stamping Co.
v. NLRB, 306 U.S. 292, 297–298 (1939), stated:

Since there must be at least two parties to a bargain and to any
negotiations to bargain, it follows that there can be no breach
of the statutory duty by the employer . . . without some indica-
tion given to him by them or their representatives of their de-
sire or willingness to bargain. In the normal course of transac-
tions between them, willingness of the employees is evi-
denced by their request, invitation, or expressed desire to bar-
gain, communicated to their employer.

Further, Marysville Travelodge, 233 NLRB 527, 533 (1977),
states: “Thus, where an employer becomes aware, through di-
rect or indirect means, that a third person purporting to act with
the authority of the employees intends to bargain on their be-
half, the test is met.” Although Dubnau could have made his
intention clearer to Corto in his initial conversation and fax to
her, he did ask her to sign a recognition agreement and to sit
down and negotiate with the Union. Corto was obviously
aware of Dubnau’s intentions, because her fax to him states that
she will negotiate with the Union to enter into a collective-
bargaining agreement. Further proof that she was aware of the
Union’s intention is that she attended a bargaining session with
the Union in December, at which time she was given a copy of
the Union’s proposed contract, which contained, inter alia, the
unit covered, a recognition clause, and a union-security clause.
There could have been no doubt in Corto’s mind at that time of
the Union’s intention. In Nantucket Fish Co., 309 NLRB 794,
795 (1992), the Board stated: “A commitment to enter into
negotiations with the union is also an implicit recognition of the
union. Once the original commitment to bargain is made, the
employer cannot unilaterally withdraw its recognition and to do
so is a violation of the Act.”
The remaining issue is the alleged lack of communication by
the Union to Corto of its majority status. I have credited Dub-
nau’s testimony that he told Corto that the musicians were Un-
ion members, and the evidence establishes that they were Un-
ion members at the time. There, apparently, was little if any
doubt in Corto’s mind about this because she never questioned
the Union about its majority status among these employees.
Counsel for the Respondent, in his brief, contends that for rec-
ognition to be lawful a union must first prove its majority
status. In this regard, he alleges that a union must have a “de-
monstrable showing of majority status.” I agree, but a demon-
strable showing of majority status is very different from requir-
ing a union to demonstrate its majority status. As the Board
stated in Windsor Place Corp., 276 NLRB 445 fn. 1 (1985),
citing Ladies Garment Workers v. NLRB, 366 U.S. 731, 739–
740 (1960):

We disavow the judge’s finding that a union must demon-
strate its majority status before an employer can recognize it.
Rather, an employer can recognize a union without such a
demonstration, but risks 8(a)(2) liability for recognizing a un-
ion supported by a minority of the unit employees.

Having found that the Respondent recognized the Union on
about November 1, I find that by withdrawing its previously
granted recognition of the Union on December 10 and April 28,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1632
1999, and by refusing to bargain further with the Union, the
Respondent violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) of the Act by
withdrawing its recognition of the Union on December 10,
1998, and April 28, 1999, and by refusing to negotiate with the
Union subsequent to that time.
THE REMEDY
Having found that the Respondent unlawfully withdrew its
earlier recognition and refused to bargain with the Union as the
exclusive representative of its employees in an appropriate unit,
I shall recommend that it be ordered to cease and desist there-
from and, on request, to bargain collectively with the Union
concerning wages, rates of pay, hours of employment and other
terms and conditions of employment.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, American Opera Musical Theatre Com-
pany, New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with As-
sociated Musicians of Greater New York, Local 802, AFM as
the exclusive collective-bargaining representative of its musi-
cians, regarding wages, rates of pay, hours of employment, and
other terms and conditions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of its musicians concerning terms and conditions of

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Post at its office in New York, New York, and mail to
each musician it has employed since December 10, 1998, a
copy of the attached notice marked “Appendix.”7 Copies of the
notice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region, attesting to the steps that it
has taken to comply with this decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT refuse to bargain collectively concerning
wages, rates of pay, hours of employment, and other terms and
conditions of employment with Associated Musicians of
Greater New York, Local 802, AFM (the Union) as the exclu-
sive bargaining representative of our musicians.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WE WILL bargain, on request, with the Union as the exclu-
sive bargaining representative of our musicians and shall em-
body in a signed agreement any understanding reached.
AMERICAN OPERA MUSICAL THEATRE
COMPANY

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”