The Academy of Magical Arts, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 10, 2017

31-CA-166705 (N.L.R.B. Jan. 10, 2017)

JD(NY)-52-16
Hollywood, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE ACADEMY OF MAGICAL ARTS, INC.
and Case No. 31–CA–166705
AMERICAN FEDERATION OF MUSICIANS, LOCAL 47
Rudy Sandoval, Esq., Counsel for the General Counsel.
Jon McNutt, Esq., Musick, Peeler & Garrett LLP, Counsel for the Respondent.
Lewis Levy, Esq., Counsel for the Charging Party.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: On December 6, 2016 the parties
submitted a Joint Motion to Transfer Proceedings to Division of Judges, Stipulation of Facts,
Statement of Issues Presented, and Parties Brief Statement of Position. This motion waives a
hearing before an administrative law judge and seeks findings of fact, conclusions of law and an
appropriate order based upon the stipulation of facts and briefs submitted by the parties. On
December 7, 2016, Associated Chief Administrative Law Judge Gerald Etchingham issued an
Order approving the Joint Motion and Stipulation of Facts, assigned the case to me, and set a
date for the filing of briefs. The parties stipulated to the following:
(a) The charge in this proceeding was filed by the Charging Party on December 22,
2015, and a copy was served on Respondent by U.S. mail on or about December 28, 2015.
(b) At all material times, Respondent has been a corporation with an office and place of
business in Hollywood, California, Respondent's facility, and has been a private club operating a
restaurant, entertainment venue, and bar engaged in the retail sale of food and entertainment.
(c) In conducting its operations during the calendar year ending December 31, 2015,
Respondent derived gross revenues in excess of $500,000. During the calendar year ending
December 31, 2015, Respondent in conducting its operations described above in paragraph (b),
purchased and received at its Hollywood, California facility goods valued in excess of $5,000
directly from points outside the State of California.
(d) At all material times, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
(e) At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
(f) At all material times, Eddie Villanueva held the position of Respondent's Controller
and has been an agent of Respondent within the meaning of Section 2(13) of the Act.
(g) The following employees of Respondent ("the Unit") constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act:
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Included: All individuals who conduct musical performances through the Employer's
instrument, known as the Irma. These employees shall be referred to herein as the
"Musician" or "Musicians"
Excluded: All other employees, independent contractors, intermittent and casual
employees, confidential employees, managerial employees, guards and supervisors
within the meaning of the National Labor Relations Act.
(h) Since at least 2010, AMA has recognized the Union as the exclusive collective
bargaining representative of the Unit.
(i) Since at least 2010, based on Section 9(a) of the Act, the Union has been the
exclusive collective bargaining representative of the Unit.
(j) On June 22, 2015, the parties entered into a Master Agreement specific to AMA which
replaced the predecessor Area Standards Agreement (ASA). The Master Agreement, which
makes reference to and incorporates an AMA Employee Handbook, became effective from July
1, 2015, through June 30, 2018 (Master Agreement). A copy of the Master agreement is
attached hereto as Jt. Exh. 1, a copy of the Employee Handbook is attached hereto as Jt. Exh.
2, and a copy of the predecessor ASA agreement is attached hereto as Jt. Exh. 3.
(k) The Master Agreement, at Article III Section B, entitled "Scheduling and Reporting,"
reads: "Changes to Shifts: The Employer retains the sole and exclusive right to assign shifts or
work schedules for Musicians. Changes to work schedules may be made by the Employer-at
any time, so long as it has notified the Musicians at least 24 hours prior to the change."
(I) The Master Agreement, at Article IV, entitled "Compensation," references and
incorporates "Addendum A" which reflects wage scales and shift durations applicable to Unit
employees. The shift durations noted in Addendum A reflect shift lengths that had been in place
at AMA for at least five years preceding the parties' execution of the Master Agreement.
(m) The Master Agreement, at Article VI, Section A, entitled "Working Conditions" reads:
"Employee Handbook: Except as specifically set forth in this Agreement, Musicians' working
conditions and work rules will be set forth in the Employer's Employee Handbook and other
employee policies, which may be revised by the Employer with or without notice, from time to
time. Musicians are required to abide by the rules set forth in the Employer's Employee
Handbook including, but not limited to, the Employer's policies on, timekeeping, meal and rest
breaks, reporting tips and gratuities, immigration and work authorization, housekeeping
smoking, and all other requirements not dictated by this Agreement. The Employer will provide a
copy of the Employer's Employee Handbook to the Local upon execution of this agreement and
when updated version are implemented for the Musicians."
(n) The Master Agreement, at Article IX, Section A, entitled "Miscellaneous" reads
"Employer's Rights: The Employer retains, solely and exclusively, all the rights, powers, and -
authority which it exercised or possessed prior to the execution of this Agreement, except as
specifically abridged by this Agreement. Without limiting the generality of the foregoing, the
rights, powers, and authority retained solely and exclusively by the Employer include, but are
not limited to the following: To manage, direct and maintain the efficiency of its operations and
personnel; to manage and control its departments and facilities; to create, change, combine or
abolish positions and jobs, departments and facilities in the whole or in part, to subcontract or
discontinue functions and activities, to direct its staff; to increase or decrease its staff and
determine the number of employees; to hire, transfer, promote, demote, suspend, discharge,
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maintain the discipline and efficiency of its employee; to lay off employees; to establish work
standards and rules, schedules of operation and workloads; to specify and assign work
requirements and require overtime; to assign work and decide which employees are qualified to
perform work; to schedule and change working hours, shifts and days off; to adopt rules of
conduct and safety rules, and penalties for violations thereof; to determine the methods,
processes, means and places of providing services; to determine the location and relocation of
facilities; and to effect technological changes. The Musicians shall at all times conduct
themselves in accordance with all applicable laws and shall observe professional decorum in
the performance of their duties. The Musicians shall also adhere to such reasonable rules and
code of conduct as the Employer may promulgate"
(o) On December 31, 2015, Unit employees did not receive premium pay (premium pay
is considered double pay) for work performed by Unit employees on New Year's Eve (December
31). For at least the five years preceding the parties' execution of the Master Agreement, Unit
employees had received premium pay for working on New Year's Eve at AMA. Premium pay
relates to wages, terms, and conditions of employment of Unit employees.
(p) The AMA changed "Shift I" and "Shift VIII" (both noted in Addendum A to the Master
Agreement) as follows:
1. Shift I, Beginning in November 2015 the AMA changed Shift 1 for Thursdays from
6:00 p.m.-12:00 a.m. (midnight) to 5:00 p.m.- 9:30 p.m. and created a second shift from
9:30 p.m.-1:30 a.m. Starting February 2016, those hours were changed to 5:00 p.m.-
9:00 p.m. and 9:00 p.m.- 1:00 a.m., respectively.
2. Shift VIII, Beginning in November 2015, the AMA changed Shift VIII for Sundays from
5:30 p.m.- 11:30 p.m. to 5:00 p.m.- 9:30 p.m. and created a second shift from 9:30 p.m. -
1:30 a.m. Starting February 2016, those hours were changed to 5:00 p.m. — 9:00 p.m.
and 9:00 p.m.- 1:00 a.m., respectively.
3. Shift I, Beginning in February 2016, the AMA changed Shift I for Wednesdays from
6:00 p.m. — 12:00 a.m. (midnight) to 5:00 p.m. to 9:00 p.m. and created a second shift
from 9:00 p.m. to 1:00 a.m.
4. Prior to making the shift changes noted above, the AMA provided at least 24 hours'
notice to the Unit employees pursuant to Article III Section B of the Master Agreement.
After July 1,2015, the date the Master Agreement went into effect, AMA did not provide
notice to the Union prior to making the shift changes noted above.
5. Shifts as noted herein worked by Unit employees relate to their hours, terms, and
conditions of employment.
6. Regardless of the shift worked as noted in Addendum A, Unit employees' hourly
wages remained the same as set forth in Addendum A to the Master Agreement.
(q) For reasons set forth in its position noted below, AMA did not pay premium
(considered double pay) pay to Unit employees who worked this past New Year's Eve,
December 31, 2015. For reasons set forth in its position noted below, AMA did not provide
notice to the Union nor was there bargaining over non-payment of premium pay to Unit
employees who worked this past New Year's Eve, December 31, 2015.
(r) During bargaining for the new Master Agreement, AMA was represented by Eddie
Villanueva, Joe Furlow, and Jon C. McNutt and the Union was represented by John Acosta and
Rick Baptist. During this bargaining, the parties discussed the AMA's potential desire to make
changes to Unit employees' shifts and the Union's proposal that Unit employees not take a pay
cut as a result of the implementation of the Master Agreement. The parties' subsequent
resolution and agreement on those issues was memorialized in Article III, Section B, entitled
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"Changes to Shifts." Relevant emails between the parties on bargaining on the issues at hand
are attached hereto as Jt. Exh. 4.
(s) During bargaining for the Master Agreement, the parties did not specifically discuss
AMA's paying premium pay to Unit employees working New Year's Eve, however, the parties
discussed the application of the Employee Handbook as to all working conditions except as
directed by the Master Agreement.
(t) It is understood that by signing this Joint Motion for a Stipulated Record, the Parties
do not waive the right to make the arguments set forth in their respective position
statements/briefs, or any other arguments.
(u) This Stipulation is made without prejudice to any objection that any party may have
as to the relevancy of any facts stated herein, including facts contained in the documents
submitted/attached through this Stipulation of Facts.
STATEMENT OF ISSUES PRESENTED
The Parties agree the issues in this matter to be:
I. Whether Respondent violated Section 8(a)(1) and (5) of the Act by making unilateral
changes to Unit employees' length of shifts.
2. Whether Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally
eliminating its practice of providing premium pay/double pay to employees who work on
New Year's Eve.
STATEMENTS OF POSITION
I. AMA's position is that it was privileged to make the shift changes as described
above in paragraph 5(p) pursuant to (i) the "Employer's Rights" clause contained in Article IX,
(ii) Section A of the Parties' Master Agreement, and (iii) the "Changes to Shifts" clause
contained in Article III, Section B of the Parties' Master Agreement, all of which established a
clear and unmistakable waiver of the Union's right to bargain over changes to shifts. The
General Counsel and Charging Party's position is that such "Employer's Rights" clause did not
privilege AMA to make such changes in that Charging Party did not clearly and unmistakably
waive Charging Party's right to bargain over said shift changes.
2. As to AMA's non-payment of premium/double pay to Unit employees who worked this
past New Year's Eve December 31, 2015 without providing notice or an opportunity to bargain
as described above in paragraph 5(o), the AMA's position is that no such notice nor bargaining
was required in that it was privileged to take unilateral action based on the Master Agreement,
including, but not limited to, language in Article VI, referencing and incorporating the Employee
Handbook and because the Union and the AMA had agreed that the AMA Employee Handbook
would dictate all "working conditions and work rules", including holiday pay, except as otherwise
directed by the Master Agreement. The General Counsel and Charging Party's position is that
the Charging Party did not clearly and unmistakably waive its right to bargain over changes to
premium pay.
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Relevant Contractual Provisions
Article IIIB of the Master Agreement effective July 1, 2015 through June 30, 2018,
states: “Changes to Shifts: The Employer retains the sole and exclusive right to assign shifts or
work schedules for Musicians. Changes to work schedules may be made by the Employer at
any time, so long as it has notified the Musicians at least 24 hours prior to the change.” Article
V.A., Wages, states:” Payment of Wages shall be made in accordance with the Employer’s
normal pay practices.”
The Respondent’s 2015 Employee Handbook lists New Year’s Day, but not New Year’s
Eve, as a paid holiday.
Additionally, in December 2015 there were emails between the Union and the
Respondent regarding New Year’s Eve premium pay. Rick Baptist, Vice President of the Union
wrote to Eddie Villanueva, Respondent’s Controller, that New Year’s Eve scale has been an
industry standard for thirty years and that all of their contracts provide for double scale for New
Year’s Eve work. Villanueva responded that neither the contract nor the Respondent’s
Handbook provide for premium pay for New Year’s Eve, which is not a recognized holiday for
the Respondent’s employees.
Article IX of the Master Agreement, Employer’s Rights, states, inter alia, that the
Employer retains the “sole and exclusive right…to schedule and change working hours, shifts
and days off…” Further, Addendum A of the Master Agreement states:
Wage Scale for Musicians First Employed on or before the Execution of This
Agreement:
Musician Lead (currently Richard Allen):
Shift I Mondays through Thursdays from 6:00 p.m. to 12:00 a.m. - $50 per hour
Shift II, Fridays from 12:00 p.m. to 2:00 p.m. - $50 per hour
Shift III, Saturdays and Sundays from 10:30 a.m. 3:00 p.m. - $67 per hour
Shift IV, Fridays from 5:30 p.m. to 9:30 p.m. - $75 per hour
Shift V, Fridays from 9:30 p.m. to 1:30 a.m. - $75 per hour
Shift VI, Saturdays from 5:30 p.m. to 9:30 p.m. - $75 per hour
Shift VII, Saturdays from 9:30 p.m. to 1:30 a.m. - $75 per hour
Shift VIII, Sunday from 5:30 p.m. to 11:30 p.m. $50 per hour
Musician:
Shift I, Mondays through Thursdays from 6:00 p.m. to 12:00 a.m. - $42 per hour
Shift II. Fridays from 12:00 p.m. to 2:00 p.m. - $42 per hour
Shift III, Saturdays and Sundays from 10:30 a.m. 3:00 p.m. - $55 per hour
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Shift IV, Fridays from 5:30 p.m. to 9:30 p.m. - $63 per hour
Shift V, Fridays from 9:30 p.m. to 1:30 a.m. - $63 per hour
Shift VI, Saturdays from 5:30 p.m. to 9:30 p.m. - $63 per hour
Shift VII, Saturdays from 9:30 p.m. to 1:30 a.m. - $63 per hour
Shift VIII, Sunday from 5:30 p.m. to 11:30 p.m. $42 per hour
Wage Scale for Musicians First Employed After the Execution of This Agreement:
Musician:
Shift I, Mondays through Thursdays from 6:00 p.m. to 12:00 a.m. - $30 per hour
Shift II, Fridays from 12:00 p.m. to 2:00 p.m. - $30 per hour
Shift III, Saturdays and Sundays from 10:30 a.m. to 3:00 p.m. - $30 per hour
Shift IV, Fridays from 5:30 p.m. to 9:30 p.m. - $30 per hour
Shift V, Fridays from 9:30 p.m. to 1:30 a.m. - $30 per hour
Shift VI, Saturdays from 5:30 p.m. to 9:30 p.m. - $30 per hour
Shift VII, Saturdays from 9:30 p.m. to 1:30 a.m. - $30 per hour
Shift VIII, Sunday from 5:30 p.m. to 11:30 p.m. $30 per hour
Analysis
The initial issue is whether the Respondent violated Section 8(a)(1)(5) of the Act by
unilaterally changing the unit employees’ shift lengths. During the bargaining that resulted in the
June 22, 2015 Master Agreement, the parties discussed the Respondent’s desire to change the
unit employees’ shifts, and that these discussions resulted in Article III, Section B of the
Agreement, entitled "Scheduling and Reporting," reads: "Changes to Shifts: The Employer
retains the sole and exclusive right to assign shifts or work schedules for Musicians. Changes to
work schedules may be made by the Employer-at any time, so long as it has notified the
Musicians at least 24 hours prior to the change." Further, the Master Agreement, at Article IX,
Section A, provides that the Respondent retained sole and exclusive right ‘to schedule and
change working hours, shifts and days off.” Paragraph (p) of the stipulation spells out the
changes in Shifts I and VIII, and states that prior to making these changes, the Respondent
gave the unit employees at least twenty four hours’ notice of the change pursuant to Article III,
Section B of the Master Agreement, although it did not notify the Union of the shift changes. As
the Respondent conformed to the terms of the Master Agreement that it entered into with the
Union, I see no unilateral change as regards the unit employees’ shift changes, and I therefore
recommend that this allegation be dismissed.
It has long been settled law that when employees are represented by a union their
employer may not make unilateral changes in their terms and conditions of employment, such
as wages. NLRB v. Katz, 369 U.S. 736, 747 (1962). In addition, the duty to maintain the status
quo imposes an obligation on the employer not only to maintain what he has already given his
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employees, but also to “implement benefits which have become conditions of employment by
virtue of prior commitment or practice.” Alpha Cellulose Corp., 265 NLRB177, 178 fn. 1 (1982).
The stipulation provides that during at least the prior five years the unit employees had received
premium pay for working on New Year’s Eve and that they were not paid premium pay for
working on the evening of December 31, 2015, without prior notice to the Union. At the
negotiations the Union discussed its desire that the employees not suffer a pay cut as a result of
the Master Agreement and there was no discussion of New Year’s Eve pay during the
bargaining. Unlike the change in the employee shift lengths discussed above, there is no
contractual language contravening this past history, and there is no clear and unmistakable
evidence that the Union waived its right to bargain about this subject, Provena Hospitals, 350
NLRB 808 (2007); ABB, Inc., 355 NLRB No. 2 (2010); in fact, the Union made it clear that it
didn’t want the employees to suffer a pay cut as a result of the Master Agreement. As they were
not given Premium Pay for New Year’s Eve work on December 31, 2015, they did suffer a pay
cut. This change therefore violated Section 8(a)(1)(5) of the Act.
Conclusions of Law
1. The Respondent has been an employer 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 meaning of Section 2(5) of the
Act.
3. The following employees of the Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
Included: All individuals who conduct musical performances through the Employer’s
instrument, known as the Irma. These employees shall be referred to herein as the
“Musician” or “Musicians.”
Excluded: All other employees, independent contractors, intermittent and casual
employees, confidential employees, managerial employees, guards and supervisors
within the meaning of the Act.
4. The Respondent violated Section 8(a)(1)(5) of the Act by unilaterally ceasing to pay its
unit employees premium pay for work performed on the evening of December 31, 2015.
5. The Respondent did not violate the Act as further alleged in the Complaint.
The Remedy
Having found that the Respondent violated Section 8(a)(1)(5) of the Act by failing to pay
its bargaining unit employees premium pay for working on the evening of December 31, 2015, I
recommend that the Respondent be ordered to pay these employees the difference between
premium pay and the amount that they were paid for that evenings work.
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Upon the foregoing facts contained in the Stipulated Record, I hereby issue the following
recommended1
ORDER
The Respondent, The Academy of Magical Arts, Inc., its officers, agents, successors
and assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing the terms and conditions of employment of its bargaining unit
employees by failing to pay its employees premium pay for working on the evening of December
31, 2015, New Year’s Eve, without prior notice to or consent of the Union.
(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 effectuate the policies of the Act:
(a) Reimburse its unit employees who worked on New Year’s Eve, December 31, 2015,
for the difference between what they were paid and Premium Pay, which they were entitled to
be paid.
(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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at its facility in Los Angeles,
California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being signed by the Respondent’s
authorized 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 altered, 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 facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 1, 2016.

1 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
purposes.
2 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(d) 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
the Respondent has taken to comply.
(e) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., January 10, 2017.
__________________
Joel P. Biblowitz
Administrative Law Judge
'Atli i Aitio
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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT unilaterally change your terms and conditions of employment by failing to pay
you premium pay for working on New Year’s Eve, without prior notice to or consent of the
Union.
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 reimburse those of you who worked on the evening of December 31, 2015 (New
Year’s Eve) for the difference between what you were paid and what you should have received,
Premium Pay.
The Academy of Magical Arts, Inc.
(Employer)
Dated____________ By________________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-166705 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 310-235-7123.