365 NLRB No. 101 (N.L.R.B. 2017)

The Academy of Magical Arts, Inc.

National Labor Relations Board - Board DecisionsJun 29, 2017

365 NLRB No. 101 (N.L.R.B. 2017)

365 NLRB No. 101 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. The Academy of Magical Arts, Inc. and American Federation of Musicians, Local 47. Case 31–CA– 166705 June 29, 2017 DECISION AND ORDER BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN On January 10, 2017, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Re- spondent filed an answering brief, and the General Coun- sel filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 1 There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to pay unit employees premium pay for their work on the evening of December 31, 2015. 2 We adopt the judge’s finding that the Respondent did not violate Sec. 8(a)(5) and (1) by shortening the length of unit-employee shifts, and creating new shifts with the remaining hours, in November 2015 and February 2016. As found by the judge, the Respondent’s conduct conformed to the terms of the parties’ Master Agreement, which au- thorizes the Respondent “to schedule and change working hours, shifts and days off.” See generally United Technologies Corp., 300 NLRB 902, 902 (1990), where the Board found that an employer did not vio- late Sec. 8(a)(5) by unilaterally changing the length of a particular shift because the contract gave the employer the right “to determine . . . shift schedules and hours of work.” The cases cited by the General Counsel do not warrant a contrary re- sult. One of those cases, Airo Die Casting, Inc., 354 NLRB 92 (2009), was an invalid two-member Board decision. See New Process Steel v. NLRB, 560 U.S. 674 (2010). The other cases cited by the General Counsel are distinguishable because they do not contain contract lan- guage similar to that authorizing the Respondent to “change working hours” and “shifts.” See KIRO, Inc., 317 NLRB 1325, 1328 (1995) (employer’s contractual right “to schedule and assign and to establish production standards” “lack[ed] the degree of specificity required to constitute a clear and unmistakable waiver of the Union’s right to bar- gain over” an increase in working hours or workload); Gratiot Commu- nity Hospital, 312 NLRB 1075, 1079, 1083–1085 (1993) (employer’s contractual right to “decide the number of assignments and the work areas” under a particular shift did not authorize the employer to reduce the number of hours in that shift to zero), enf. denied in relevant part 51 F.3d 1255, 1260–1261 (6th Cir. 1995); Control Services, Inc., 303 NLRB 481, 483–485 (1991) (employer’s contractual right “to schedule hours of employment . . . [or] to relieve employees of duties because of lack of work” did not authorize the employer’s unilateral reduction in the number of hours to be worked by unit employees). Accordingly, we adopt the judge’s finding that the Master Agreement privileged the Respondent’s changes to unit-employee shifts. ORDER The National Labor Relations Board orders that the Respondent, The Academy of Magical Arts, Inc., Holly- wood, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing the terms and conditions of employment of its unit employees. (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) Rescind the change in the terms and conditions of employment for its unit employees that was unilaterally implemented on December 31, 2015. (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Ameri- can Federation of Musicians, Local 47, as the exclusive collective-bargaining representative of employees in the following unit: Included: All individuals who conduct musical per- formances through the Employer’s instrument, known as the Irma. These employees shall be referred to herein as the “Musician” or “Musicians” Chairman Miscimarra agrees with his colleagues that the cases cited by the General Counsel—KIRO, Inc., 317 NLRB 1325 (1995); Gratiot Community Hospital, 312 NLRB 1075 (1993); and Control Services, Inc., 303 NLRB 481 (1991)—are distinguishable. He expresses no view as to whether those cases were correctly decided or whether the con- tractual language at issue may have authorized one or more of the re- spondent employers in those cases to act unilaterally under either the Board’s “clear and unmistakable waiver” standard, see Provena St. Joseph Medical Center, 350 NLRB 808, 811 (2007), or the “contract coverage” standard applied by some courts of appeals, see, e.g., De- partment of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992); Chicago Tribune Co. v. NLRB, 974 F.2d 933, 936–937 (7th Cir. 1992); Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14, 25 (1st Cir. 2007). 3 We amend the judge’s remedy to provide that backpay for any loss of earnings and other benefits suffered by unit employees as a result of the Respondent’s unilateral change shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). Additionally, we shall order the Respondent to compensate affected employees for any adverse tax consequences of receiving lump-sum backpay awards and to file a report with the Regional Director for Region 31 allocating backpay to the appropriate calendar years in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). We shall modify the judge’s recommended Order and substitute a new notice to conform to the remedy as amended and to the Board’s standard remedial language. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 Excluded: All other employees, independent contrac- tors, intermittent and casual employees, confidential employees, managerial employees, guards and supervi- sors within the meaning of the National Labor Rela- tions Act. (c) Make unit employees whole for any loss of earn- ings and other benefits suffered as a result of the unilat- eral change, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (d) Compensate affected employees for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Re- gion 31, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year for each employee. (e) 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, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Hollywood, California facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If 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 em- ployees and former employees employed by the Re- spondent at any time since December 31, 2015. 4 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.” (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. June 29, 2017 ______________________________________ Philip A. Miscimarra, Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT unilaterally change your terms and con- ditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. ACADEMY OF MAGICAL ARTS, INC. 3 WE WILL rescind the change in your terms and condi- tions of employment that was unilaterally implemented on December 31, 2015. WE WILL, before implementing any changes in your wages, hours, or other terms and conditions of employ- ment, notify and, on request, bargain with American Federation of Musicians, Local 47, as the exclusive col- lective-bargaining representative of employees in the following unit: Included: All individuals who conduct musical per- formances 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 contrac- tors, intermittent and casual employees, confidential employees, managerial employees, guards and supervi- sors within the meaning of the National Labor Rela- tions Act. WE WILL make unit employees whole for any loss of earnings and other benefits suffered as a result of our unlawful unilateral change, plus interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Di- rector for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year for each employee. THE ACADEMY OF MAGICAL ARTS, INC. The Board’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, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Rudy Sandoval, Esq., 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 Decem- ber 6, 2016, the parties submitted a joint motion to transfer proceedings to Division of Judges, stipulation of facts, state- ment of issues presented, and parties brief statement of posi- tion. 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, as- signed 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 Re- spondent 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 end- ing December 31, 2015, Respondent derived gross revenues in excess of $500,000. During the calendar year ending Decem- ber 31, 2015, Respondent in conducting its operations de- scribed above in paragraph (b), purchased and received at its Hollywood, California facility goods valued in excess of $5000 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 organi- zation 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 Respond- ent 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 bar- gaining 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, in- termittent 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 representa- tive 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, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 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 Joint Exhibit 1, a copy of the employee handbook is attached hereto as Joint Exhibit 2, and a copy of the predecessor ASA agreement is attached hereto as Joint Ex- hibit 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 “Compensa- tion,” references and incorporates “Addendum A” which re- flects wage scales and shift durations applicable to Unit em- ployees. 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 require- ments not dictated by this Agreement. The Employer will pro- vide a copy of the Employer’s Employee Handbook to the Lo- cal 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 fa- cilities; to create, change, combine or abolish positions and jobs, departments and facilities in the whole or in part, to sub- contract 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, dis- charge, 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 viola- tions thereof; to determine the methods, processes, means and places of providing services; to determine the location and relo- cation 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 Em- ployer 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 5 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., re- spectively. 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. (mid- night) 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 pur- suant 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 em- ployees 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 nonpayment 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 Agree- ACADEMY OF MAGICAL ARTS, INC. 5 ment. The parties’ subsequent resolution and agreement on those issues was memorialized in article III, section B, entitled “Changes to Shifts.” Relevant emails between the parties on bargaining on the issues at hand are attached hereto as Joint Exhibit 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 dis- cussed the application of the employee handbook as to all working conditions except as directed by the Master Agree- ment. (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 state- ments/briefs, or any other arguments. (u) This stipulation is made without prejudice to any objec- tion that any party may have as to the relevancy of any facts stated herein, including facts contained in the documents sub- mitted/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 pre- mium pay/double pay to employees who work on New Year’s Eve. STATEMENTS OF POSITION 1. 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 unmis- takable 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 nonpayment 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 Agree- ment, including, but not limited to, language in article VI, ref- erencing and incorporating the employee handbook and be- cause the Union and the AMA had agreed that the AMA Em- ployee Handbook would dictate all “working conditions and work rules,” including holiday pay, except as otherwise di- rected 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 chang- es to premium pay. Relevant Contractual Provisions Article IIIB of the Master Agreement effective July 1, 2015, through June 30, 2018, states: “Changes to Shifts: The Employ- er 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 pre- mium 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 Respond- ent’s employees. Article IX of the Master Agreement, Employer’s Rights, states, inter alia, that the Employer retains the “sole and exclu- sive 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 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6 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 Execu- tion 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 employ- ees’ 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 exclu- sive 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 24-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 repre- sented 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 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 premi- um 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 con- tractual 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 13 (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 com- merce 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 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, in- termittent 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 em- ployees 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. Upon the foregoing facts contained in the stipulated record, I hereby issue the following recommended1 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ACADEMY OF MAGICAL ARTS, INC. 7 ORDER The Respondent, the Academy of Magical Arts, Inc., its of- ficers, agents, successors and assigns, shall 1. Cease and desist from (a) Unilaterally changing the terms and conditions of em- ployment of its bargaining unit employees by failing to pay its employees premium pay for working on the evening of Decem- ber 31, 2015, New Year’s Eve, without prior notice to or con- sent 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 effec- tuate 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 enti- tled to be paid. (b) Preserve and, within 14 days of a request, or such addi- tional 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 rec- ords, 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 fa- cility 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 con- spicuous 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 employ- ees employed by the Respondent at any time since January 1, 2016. (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 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 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.” 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 no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties 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, re- strain, 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 re- ceived, Premium Pay. THE ACADEMY OF MAGICAL ARTS, INC. 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.