The NYT reports that the American Guild of Musical Artists, the union for City Opera’s singers, dancers, stage managers, and directors, has filed a charge with the National Labor Relations Board (NLRB) alleging that the proposed move out of Lincoln Center is an unfair labor practice, a move designed to break labor contracts. In addition, AGMA says they’ll seek an injunction from a federal court barring the move.
We haven’t found a copy of the complaint–we’ll keep checking–but for now, some preliminary comments. (One of us works in the legal profession.)
First, this case is similar to another one that has made the headlines lately: the NLRB’s complaint against Boeing for opening a second assembly line for the 787 Dreamliner at a non-union facility in South Carolina, rather than the unionized facility currently assembling the 787 in Washington State. The NLRB argues that the move was designed primarily to retaliate against the Washington union members and chill their future union activity. Labor law professionals call this a “runaway shop.” Right-wing commentators and members of Congress have been livid, calling the NLRB’s complaint “tyrannous.” (No ruling yet.)
Those right-wingers claim that the NLRB complaint against Boeing is an unprecedented infringement on a business’s ability to conduct its affairs without interference. This is wrong: old and venerable law says that an employer may not move its facility just to bust a union, and every student in a labor law class is familiar with the doctrine.* The right-wingers may not like the law, but it’s wrong to say that it’s unprecedented. (They claim that they’re trying to stop a totally new development, but they’re really trying to change the law and overrule precedent.)
Second, some explanations. The “runaway shop” doctrine depends on whether the employer transferred operations out of a unionized facility in order to evade its obligations to negotiate with the union. But if the employer had “valid economic considerations” aside from labor issues for the move, and otherwise satisfies its duty to bargain with the union, then the employer did not violate the law. (In other words, it’s actually very easy for an employer to win these kinds of cases, which means that the right-wing outrage over Boeing is really a sideshow meant to discredit the NLRB and the labor movement.) Employers are also liable for threatening to move operations during a union recognition drive. Finally, the law holds that proposed relocation of operations is a mandatory subject of bargaining if a recognized union exists.
Apparently AGMA’s NLRB complaint alleges that City Opera failed to bargain with it regarding the proposed relocation, and thus violated the employer’s duty to bargain over mandatory topics. In other words, AGMA doesn’t appear to be complaining about the move itself, since it hasn’t happened yet; AGMA’s complaining about the failure to negotiate over it. Filing a complaint won’t accomplish anything in itself–the NLRB can’t act now–which is why AGMA says it’s also going to federal court for an injunction to block the move.
Can’t say whether AGMA’s complaint has any merit, or how it will impact City Opera. We’ll have more when we get our hands on the actual complaint.
* A quick rundown of the law that apparently escapes the right-wingers hating on the Boeing action: “Runaway shops” are attempts to interfere with, restrain, or coerce employees exercising their right to organize, and thus are “unfair labor practices” under §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. See, e.g., Microimage Display Div. of Xidex Corp. v. NLRB, 924 F.2d 245 (D.C. Cir. 1991) (threat to move work to non-union plant an unfair labor practice); Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983) (threat to transfer operations to Hong Kong an unfair labor practice). Proposed relocations are a mandatory subject of bargaining, and refusal to bargain over such relocations violates § 8(a)(5) of the Act. See, e.g., United Food & Commercial Workers Int’l Union, Local No. 150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993); Cooper Thermometer v. NLRB, 376 F.2d 684 (2d Cir. 1967).