New Mexico Symphony Orchestra

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 896 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
New Mexico Symphony Orchestra, Inc. and Musi-
cians Association of Albuquerque, Local 618,
American Federation of Musicians, AFL–CIO.
Case 28–CA–13596
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
The issue presented in this case is whether the Re-
spondent, New Mexico Symphony Orchestra, Inc., vio-
lated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act by unilaterally changing the terms and condi-
tions of unit employees by failing and refusing to make
timely and full payroll payments. Based on the parties’
stipulation of facts, we find that the Respondent violated
the Act as alleged.
Procedural History
The Union filed an unfair labor practice charge on
March 11, 1996. By letter dated April 30, 1996, the Re-
gional Director for Region 28 deferred the dispute to the
parties’ grievance and arbitration procedures under Dubo
Mfg. Corp., 142 NLRB 431 (1963). By letter dated Feb-
ruary 27, 1997, the Regional Director revoked the defer-
ral of the charge and reopened the investigation. There-
after, on March 31, 1997, the Regional Director issued a
complaint and notice of hearing. The Respondent filed a
timely answer, admitting in part and denying in part the
allegations in the complaint. In particular, the Respon-
dent denied that it had engaged in unfair labor practices.
On January 22, 1998, the General Counsel, the Re-
spondent, and the Charging Party filed a stipulation of
facts and a joint motion to transfer proceedings directly
to the Board. The parties agreed that the charge, the letter
from the Regional Director approving the partial with-
drawal of the charge, the answer, and the stipulation of
facts with attachments would constitute the entire record
before the Board. The parties waived a hearing, the mak-
ing of findings of fact and conclusions of law by an ad-
ministrative law judge, and agreed to submit this case
directly to the Board for findings of fact, conclusions of
law, and a Decision and Order.
On March 19, 1998, the Executive Secretary, by direc-
tion of the Board, issued an order granting the motion,
approving the stipulation, and transferring the proceeding
to the Board. Thereafter, the Respondent filed a motion
to dismiss the complaint and a supporting brief and the
General Counsel filed a brief. The Charging Party filed
an answering brief to the Respondent’s motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New Mexico corporation, incorpo-
rated as a domestic, nonprofit corporation, maintains a
principal place of business in Albuquerque, New Mex-
ico. At all material times, the Respondent has engaged in
business as a symphony orchestra. During the 12-month
period preceding the execution of the stipulation, the
Respondent derived gross revenues in excess of $1 mil-
lion exclusive of contributions that, because of limita-
tions by grantors, are not available for use for operating
expenses. During the same period, the Respondent pur-
chased goods valued in excess of $50,000 from suppliers
located within the State of New Mexico which purchased
and received such goods and materials directly from
points outside the State of New Mexico.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We further find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Since 1993, the Respondent and the Union have been
parties to a series of collective-bargaining agreements
covering a unit of the Respondent’s employees consist-
ing of all the musicians in the orchestra. Under Article
13 of the contract,1 unit members are paid the total of
their personal service agreement in 20 equal payments,
made twice monthly, over a 10-month period. Unit
members also have the option of electing to be paid in 24
equal payments, made twice monthly, over a 12-month
period. In either case, the contract requires that the Re-
spondent make wage payments twice monthly on the
15th and 30th/31st day of each month. During the 6
months preceding the filing of the charge, from Septem-
ber 11, 1995 to March 11, 1996, the Respondent, with
few exceptions, failed to make payroll or was late or be-
hind in making part or all of its payroll obligations to
unit employees. During this period, the Respondent was,
at times, up to two payments behind in making the con-
tractually required wage payments. Continuing through
March 31, 1997, the date on which the complaint issued,
the Respondent was chronically late in making full con-

1 The most recent contract was effective by its terms from September
1, 1995 to August 31, 1996. On March 31, 1997, the date on which the
charge was filed, the parties were operating under a 1-year extension of
the contract, which was effective by its terms through August 31, 1997.
335 NLRB No. 72
NEW MEXICO SYMPHONY ORCHESTRA 897
tractual wage payments. On each occasion that the Re-
spondent failed to make the contractually required pay-
roll payments, the failure was due to a lack of sufficient
funds to cover operating expenses.
The contract contains a grievance and arbitration
clause providing for binding arbitration.2 Each time the
Respondent failed to timely make the payroll payment,
the Union filed a grievance. In response to each griev-
ance, the Respondent admitted that it had failed to com-
ply with the terms of the contract by either failing to
make the contractually required wage payment or making
the payment late as alleged in the grievance. In some of
its responses, the Respondent would indicate either the
date on which the delinquent payroll was paid and de-
clare that the grievance was satisfied3 or predict the date
on which the payment would be made.4 In other re-
sponses, the Respondent would warn of another impend-
ing failure to make payroll or indicate its “hope” that
employees would be paid “as soon as possible.”5
By letter dated November 1, 1995, the Union’s presi-
dent informed the Respondent that “it is the Union’s po-
sition that no musician is obliged to work when payrolls
are not being met in full and in a timely manner” and that
no musician “may be properly disciplined or discharged
for making the decision that he or she will not work” as
long as the payroll was not being met. By letter dated
November 8, 1995, the Respondent’s Executive Director
Paul Bunker admitted its failure to make timely payment
on “a number of payrolls,” but noted that the contractual
grievance and arbitration procedure is the exclusive
mechanism for resolving disputes under the contract.
Bunker also noted that the no-strike clause prevents the
Union and unit employees from striking to protest the
late payments.
The Union did not elect to take any of the grievances
to arbitration. As of the date of the stipulation, the Re-
spondent had paid unit employees all the back wages due
them and its payroll was current.
B. The Parties' Contentions
The General Counsel contends that the Respondent's
repeated and habitual failure to pay employees in accor-
dance with the terms of the contract is a unilateral change
in the existing wage structure and violates Section

2 Art. 22.2 requires that disputes or disagreements “arising out of or
in any way involving the interpretation or application of [the contract]”
be submitted to the arbitration procedures. Art. 22.8 provides that the
arbitrator “shall limit his or her decision strictly to an interpretation of
the language of [the contract].”
3 Letters dated November 28, December 10, 1995, and January 17,
1996.
4 Letters dated November 13, 1995, February 22, and March 5, 1996.
5 Letters dated November 13, 1995, January 18, and February 22,
1996.
8(a)(1) and (5) of the Act. The General Counsel further
contends that deferral to arbitration is inappropriate, not-
ing that the Union’s resort to the contractual grievance
and arbitration procedure is and has been futile, and that
a determination by the Board of the merits of the alleged
unfair labor practice is critical to the assessment of the
unit employees’ right to engage in a work stoppage or
other actions protected by Section 7.
The Respondent argues that the Regional Director
erred in revoking the deferral of this case and that the
Board should dismiss the complaint. The Respondent
further argues that the parties’ contract places the burden
of initiating arbitration on the aggrieved party and that
the Union has consistently failed to submit its grievances
to arbitration. Finally, the Respondent admits that it
failed to make the required payroll payments but con-
tends that it lacked sufficient funds to cover operating
expenses and its inability to make all of its payrolls in a
timely manner is an unintended and unavoidable breach
of the contract.
The Charging Party argues that deferral is inappropri-
ate because the Respondent has admitted that it did not
comply with the contract and therefore interpretation or
application of the contract is not in dispute.
C. Discussion
It is well established that the failure to make timely con-
tractually required payments without consent of the Union
constitutes a unilateral modification of the terms of the
collective-bargaining agreement in violation of Section
8(a)(1) and (5) of the Act. See, R.T. Jones Lumber Co.,
313 NLRB 726 (1994), and cases cited therein. In the
instant case, Article 13.13 of the parties’ contract requires
the Respondent to make wage payments on the 15th and
30th/31st day of each month and the Respondent has ad-
mitted that it has not complied with the contract.
We find no merit in the Respondent’s assertion that de-
ferral to arbitration is appropriate.6 In the instant case,
the admitted breach of the contract does not involve a
question of contract interpretation or require the special
competence of an arbitrator. R.T. Jones Lumber Co.,
supra at 727. Article 13.13 of the parties’ contract is
clear and unambiguous on its face and the Respondent
admits that it failed to make the contractually required
wage payments. The Respondent does not assert that the
contract gives it the right unilaterally to alter the timing
and amount of wage payments. No construction of the
contract is relevant for evaluating the only reason as-
serted by the Respondent for failing to make its payroll,
6 Accordingly, we dismiss the Respondent’s motion to dismiss.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
namely the lack of sufficient funds to cover operating
expenses.7
We also reject the Respondent’s assertion that this case
involves only “an unintended and unavoidable breach” of
the contract. It is well settled that the Respondent’s as-
sertion that it lacked sufficient funds to cover its operat-
ing expenses is not an adequate defense to an allegation
that it has unlawfully failed to abide by the provisions of
its collective-bargaining agreement. Stevens & Associ-
ates Construction Co., 307 NLRB 1403 (1992). Further,
the Board has recognized that wage provisions are “per-
haps the most important element of the many in the em-
ployment relationship which Congress remitted to the
mandatory process of collective bargaining under the
Act.” Oak Cliff-Golman Baking Co., 207 NLRB 1063,
1064 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974), cert.
denied 423 U.S. 826 (1975). Thus, the Board’s jurisdic-
tion under the Act clearly encompasses not only the au-
thority but the obligation to protect the statutory process
of collective bargaining against conduct so disruptive to
one of its principal functions—the establishment and
maintenance of a viable agreement on wages.8
Here the Respondent admits that it has consistently
failed to make timely and full wage payments. For ex-
ample, as noted above, during the 6 months preceding
the filing of the charge, the Respondent, with few excep-
tions, failed to make or was late in making part or all of
its bimonthly payroll obligations. The parties also stipu-

7 Although stating that he does not reach the deferral issue, our dis-
senting colleague suggests that the contractual grievance and arbitration
procedure may adequately redress the Respondent's failure to make
timely and full wage payments. However, the Union filed a grievance
each time the Respondent failed to make timely payroll and, in many
instances, the Respondent negated the grievance by making a late pay-
ment. Despite these grievances, the Respondent continued to be
chronically late in making full contractual wage payments. Only after
repeated failure to gain redress through the grievance and arbitration
mechanism did the Union come to the Board. To be sure, the Union's
grievances were successful in securing payment of the delinquent pay-
roll. The grievances did not, however, end the Respondent's chronic
lateness in making contractually required payroll payments.
8 Id. The possibility that other remedies exist as suggested by our
dissenting colleague does not displace the Board’s authority to adjudi-
cate and remedy an unfair labor practice. Sec. 10(a) of the Act pro-
vides that the Board’s authority to prevent unfair labor practices is “not
affected by any other means of adjustment or prevention that has been
or may be established by agreement, law or otherwise. . . .” The Board
is not trespassing on forbidden territory when it inquires whether nego-
tiations have produced a bargain which an employer refuses to honor.
The proper business of the Board is to remedy conduct, such as that in
the instant case, that amounts to the repudiation of an obligation under
the collective-bargaining relationship.
Our dissenting colleague also suggests that the Respondent might
not make a timely wage payment pursuant to our Order. We are
unwilling to assume that the Respondent will fail to comply with the
Board's Order once it is enforced. Further, we are confident that if the
Respondent does not comply, the courts will take appropriate action.
lated that, throughout the term of the collective-
bargaining agreement and continuing through March 31,
1997, the date the complaint issued, the Respondent was
chronically late in making full contractual wage pay-
ments. In these circumstances, the Respondent's conduct
is more than a de minimis failure to abide by the contrac-
tually mandated terms and conditions of employment.
Zimmerman Painting & Decorating, 302 NLRB 856
(1991).9
Accordingly, in view of the Respondent's admitted
failure to make timely and full payroll payments, we find
that the Respondent has violated Section 8(a)(1) and (5)
of the Act.
CONCLUSION OF LAW
By failing and refusing to make timely and full payroll
payments, the Respondent has committed unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to make the unit employees whole for any
losses they may have suffered as a result of the Respon-
dent’s unlawful failure to make timely and full payroll
payments, with such amounts to be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).10
ORDER
The National Labor Relations Board orders that the
Respondent, New Mexico Symphony Orchestra, Inc.,
Albuquerque, New Mexico, its officers, agents, succes-
sors, assigns shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union, by
failing and refusing to make timely and full payroll pay-
ments to unit employees.
9 In finding no violation, our dissenting colleague cites his own prior
dissenting opinion in another case, as well as the dissenting opinions of
other Board Members in Zimmerman and other cases, thereby effec-
tively conceding that his position is contrary to Board precedent. Our
dissenting colleague further suggests that the collective-bargaining
process can provide adequate redress for the Respondent’s misconduct.
However, a similar contention was also rejected in Zimmerman, 302
NLRB at 857, and we likewise reject our colleague’s suggestion here.
10 The parties have stipulated that, as of the date of the stipulation,
the Respondent had paid unit employees all back wages due them and
that its payroll is current. To the extent the Respondent has made the
contractually required wage payments, those amounts shall be deducted
from any backpay that may be due.
NEW MEXICO SYMPHONY ORCHESTRA 899
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Make timely and full payroll payments as required
by the collective-bargaining agreement and make whole
unit employees for any losses they may have suffered as
a result of the Respondent’s unlawful failure to make
timely and full payroll payments, in the manner set forth
in the remedy section of this decision.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of payment due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facility in Albuquerque, New Mexico, copies of the
attached notice marked “Appendix.”11 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent's au-
thorized representative shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
11, 1995.
(d) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

MEMBER HURTGEN, dissenting.
My colleagues find that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to pay its unit employees
in a timely fashion, as required under its collective-

11 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."
bargaining agreement with the Union.1 In so doing, they
reject the Respondent’s arguments that its failure, on
various occasions, to pay its employees on time was an
unintended contract breach caused by insufficient funds,
and was not a violation of the Act. Alternatively, they
reject the Respondent’s argument that such a contract
breach should be deferred to the parties’ grievance-
arbitration procedure.
I disagree with my colleagues. I find that the tardiness
of Respondent’s payments was not unlawful under Sec-
tion 8(a)(5). The parties stipulated that the tardiness was
“occasioned by a lack of sufficient funds to cover operat-
ing expenses and for no other reason.” The issue is
whether the Respondent has terminated or modified the
contract in violation of Section 8(a)(5) and 8(d), as dis-
tinguished from committing a contract breach. Clearly,
Respondent has not engaged in the former conduct. It
has not repudiated the contract or sought to avoid its
terms. It simply has been financially unable to pay at
various times. At most, this is a breach of contract, not a
violation of Sections 8(a)(5) and 8(d) of the Act.2
I disagree with my colleagues’ conclusion that the con-
tractual grievance and arbitration procedure has been
inadequate to deal with contract breaches. My col-
leagues say that Respondent’s subsequent wage pay-
ments have “negated” the grievances. In fact, those
grievances prompted Respondent to tender the payments
or provide written explanations as to when payments
would be made. The Union had the option of accepting
this as a settlement or pursuing the grievance further.
Those grievances—if pursued—would provide the Union
with the opportunity to recoup from the Respondent any
additional moneys or other applicable remedies or penal-
ties provided for under the contract and much more ex-
peditiously than any relief the Board will provide. The
Union, as the aggrieved party, had the right to pursue
these grievances to arbitration. It chose not to do so.
In sum, the fact that there is no 8(a)(5) violation here
does not mean that there are no ways to redress the prob-
lem. There is a grievance-arbitration mechanism; there is
Section 301 of the Act to enforce arbitral awards; and
there can be collective bargaining to find ways to redress
the problem. With particular respect to collective bar-
gaining, for example, the Union and the Respondent
could agree to a bond that would be the source of prompt
payment of wages if the Respondent did not pay in a
timely fashion.
1 Although several paychecks were not provided to employees on
time, all pay owing to the employees had been tendered at the time that
the parties presented this case to the Board on a stipulated record.
2 See my dissenting position in Endicott Forging & Mfg., 328 NLRB
69, 71 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
The majority implies that I have found the Respon-
dent’s failure to make timely wage payments to be “de
minimus.” They misconstrue my position. I do not
minimize the importance to employees of receiving
timely pay. Nor do I seek to diminish the Respondent’s
contractual obligation to make those payments. How-
ever, the late payments here were unintended and were
driven solely by lack of funding. The Respondent has
demonstrated its ongoing willingness to work with the
Union to redress the problem of late payments. The Re-
spondent is willing to apply the contractual grievance-
arbitration mechanisms to its breach. In these circum-
stances, I find that the dispute is best resolved in that
manner rather than through Section 8(a)(5).
My colleagues misconstrue my position in another re-
spect as well. I am not saying that the Board lacks the
power to redress unfair labor practices. Clearly, under
Section 10(a) the Board has the power do so. However,
as discussed infra, I do not believe that there has been
Section 8(d) and 8(a)(5) contract modification. Further,
even if there were, the Board has discretion to allow
other tribunals to resolve the dispute (e.g., Collyer defer-
ral).
Finally, I stress that there is no need to turn this dis-
pute into a full-blown NLRB case. The Board is a busy
agency, with many cases on its plate. I see no need to
spend time and money (taxpayer and party money) on a
case such as this one. Even if successful, 8(a)(5) litiga-
tion will not solve the problem. After extended litigation
(ALJD, Board decision, court decree), this case will re-
sult only in an order that Respondent make timely pay-
ments. Let us assume arguendo that the conduct is re-
peated, i.e., Respondent, for financial reasons, is unable
to make a timely payment. I suggest that a court would
not find it “clear and convincing” that Respondent should
be held in contempt. The practice of punishing debtors
ended in this country in the 19th Century. Thus, one
wonders why all the time and money has been spent on
the litigation of the instant case.3 I therefore would dis-
miss the complaint.4

3 Contrary to my colleague's assertion, I am not suggesting that the
Respondent would disobey a Board order. I simply suggest that even if
Respondent is financially unable to comply, contempt sanctions would
be unlikely.
4 In an otherwise meritorious case, the Board may defer under Col-
lyer. In a case without merit, the Board dismisses.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with Musicians As-
sociation of Albuquerque, Local 648, American Federa-
tion of Musicians, AFL-CIO, the exclusive collective-
bargaining representative of our employees in an appro-
priate unit, by failing and refusing to make timely and
full payroll payments. The appropriate unit is:

All employees employed by the New Mexico Sym-
phony Orchestra, Inc. performing work covered by the
classifications set forth in Article 2 of the collective-
bargaining agreement, but excluding guards and super-
visors as defined by the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make timely and full payroll payments as
required by the collective-bargaining agreement and WE
WILL make whole unit employees for any losses they
may have suffered as a result of the our failure to make
timely and full payroll payments, with interest.

NEW MEXICO SYMPHONY ORCHESTRA,
INC.