Columbus Symphony Orchestra, Inc.

COLUMBUS SYMPHONY ORCHESTRA 350 NLRB No. 49 523 Columbus Symphony Orchestra, Inc. and The Inter- national Alliance of Theatrical, Stage Employees and Moving Picture Technicians, Artists and Al- lied Crafts of the U.S. and its Territories and Canada, AFL–CIO and its Local 12, Petitioner. Case 9–RC–18137 August 6, 2007 DECISION ON REVIEW AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On April 12, 2007, the Regional Director for Region 9 issued a Decision and Direction of Election, in which he found that an election should be held in a unit of all full- time, regular part-time, and casual stage and production employees. To determine which of the unit employees was eligible to vote in the election, the Regional Director substantially modified the standard formula set out in Davison-Paxon Co., 185 NLRB 21 (1970). The Davi- son-Paxon formula states that a unit employee is eligible to vote “if the employee regularly averages 4 or more hours of work per week for the last quarter prior to the eligibility date.” Davison-Paxon, supra at 23–24 (em- phasis added). See also Wadsworth Theatre Mgmt., 349 NLRB 122, 123 (2007), citing Steppenwolf Theatre Co., 342 NLRB 69, 71 (2004). Here, however, the Regional Director modified the standard formula to provide that unit employees were eligible to vote if they worked an average of 4 hours a week during the 13-week summer component of the Employer’s 2006 season. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Employer filed a timely request for review, asserting that the Regional Director erred in modifying the Davi- son-Paxon formula to provide for a different eligibility time frame. The Petitioner filed an opposition. On May 16, 2007, the Board granted review solely with respect to the Regional Director’s eligibility determination.1 Thereafter, the Employer and the Petitioner filed briefs on review.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having carefully considered the entire record in this proceeding, including the briefs on review, we find, con- trary to the Regional Director, that the traditional Davi- 1 The Board denied review of the Regional Director’s findings that the petitioned-for unit is appropriate and that the casual production employees are not jointly employed or leased by the Employer and the Petitioner. The election was conducted as scheduled on May 8, 2007, and the ballots were impounded. 2 The Employer’s request for oral argument is denied as the record and briefs adequately present the issues and the positions of the parties. son-Paxon voting eligibility formula, unmodified in any way, should be used in this case. Facts The Employer (Orchestra) is a professional symphony orchestra based in Columbus, Ohio. The Petitioner seeks to represent the Employer’s full-time, part-time, per diem, and casual production employees, a unit that the Regional Director found is appropriate.3 The Orchestra performs live concerts throughout the calendar year, and presented more than 170 performances in 2006. The Orchestra plays a 39-week schedule from September to May (winter component) and a 7-week schedule of ap- proximately 12 performances from June to August (summer component). The winter concerts are held pri- marily at the Ohio Theater in Columbus, with perhaps 10 additional “run-out”concerts held in community venues such as schools. The summer performances are held in a tent set up on the lawn of a corporate sponsor. The Employer employs two full-time production em- ployees: Production Manager Bill Lutz, a stipulated su- pervisor who also performs substantial production work, and Production Assistant Art Silva. When the Orchestra performs at the Ohio Theater, stagehands who are em- ployed by the Columbus Association for the Performing Arts, which operates the Theater, assist Lutz and Silva in production work.4 When additional stagehands are needed at the Ohio Theater or to assist Lutz and Silva at other venues, the Employer seeks referrals (casual em- ployees) through the Petitioner’s hiring hall or contacts particular stagehands directly. The Employer typically hires a few casual employees for the run-out concerts and for its December “Holiday Pops” concert series. The Employer hires the majority of its casual employees to work several days at the begin- ning and end of its summer schedule to set up and take down the performance tent. For example, in 2005 and 2006, the Employer hired 10-15 casual employees to set up the tent and the same number to take the tent down. Only a few casual employees worked both the set up and take down of the tent. In addition to these casual employees, the Employer typically hires one casual employee to directly assist Silva with summer concert production work. The Em- ployer prefers to hire only one person for this position and routinely hires for this position from a “pool” of four stagehands with previous experience working for the Employer: Kevin Campbell, Earl Hinch, Michael Doo- ley, and Philip Maher. In the summer of 2005, Campbell 3 The approximately 60 musicians in the orchestra are represented by the Columbus Federation of Musicians. 4 These stagehands are already represented by the Petitioner. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 was hired for the position and worked about 200 hours over the course of the summer performance schedule, while Hinch worked 19 hours, Dooley worked 12 hours, and Maher worked 15 hours. In the summer of 2006, when no single casual employee from the “pool” was available for the entire summer, Dooley worked 140 hours, Hinch worked 63 hours, Maher worked 56 hours, and Campbell worked 37 hours.5 In 2005, the Em- ployer’s casual employees, as a whole, worked approxi- mately 500 hours during the entire year, while in 2006, they worked approximately 600 hours. Regional Director’s Decision Despite the Orchestra’s year-round performance schedule, the Regional Director found that the use of an outdoor venue for summer performances and the Em- ployer’s reliance on casual employees to perform a sig- nificant percentage of the summer production work were “special circumstances” that warranted the application of a modified Davison-Paxon formula. The Regional Di- rector stated that a straight-forward application of the Davison-Paxon formula would be too restrictive and “would virtually disenfranchise all the casual employees” who had a “pattern of regular seasonal employment.” The Regional Director found that the Employer’s routine and repeated hiring of casuals from the same employee pool, its practice of hiring the same four individuals to directly assist Silva, and the fact that these individuals did the same work and shared the same supervision as Silva, showed that “a percentage” of the casuals hired had a reasonable expectation of future employment with the Employer and that they possessed a continuing inter- est in the Employer’s terms and conditions of employ- ment. Therefore, instead of the standard election eligibil- ity period—which in this case would be the payroll pe- riod directly preceding the May 8, 2007 election—the Regional Director fashioned a formula that took into ac- count the number of hours that unit employees worked during the summer component of the Employer’s 2006 season, which the Regional Director considered as the “limited period of time . . . during which the casual stage and production employees are expected to work.” Analysis Contrary to the Regional Director, we perceive no ba- sis for deviating from the Board’s traditional Davison- Paxon voting eligibility formula in this case. The Board’s election eligibility formulas are designed “to permit optimum employee enfranchisement and free choice, without enfranchising individuals with no real 5 In the summer of 2006, there were two run-out concerts in addition to the performances at the tent. Only Hinch and Dooley worked addi- tional, non-summer hours in 2005 and 2006. continuing interest in the terms and conditions of em- ployment offered by the employer.” Trump Taj Mahal Casino, 306 NLRB 294, 296 (1992), enfd. 2 F.3d 35 (3d Cir. 1993) (emphasis added). Typically, casual employ- ees lack such a real interest because they do not work a sufficient number of hours with sufficient regularity. The Board has indicated that permitting such employees to vote for a collective-bargaining representative, despite their lack of substantial interest, might well permit the selection of a representative by employees who will be only remotely and insubstantially affected by the activi- ties of that representative. H.P. Wasson and Co., 105 NLRB 373, 374 (1953). The Board’s longstanding and most widely used for- mula to determine voting eligibility for part-time or on- call employees is the Davison-Paxon formula, under which an employee is considered to have a sufficient regularity of employment to demonstrate a community of interest with unit employees if that employee regularly averages 4 or more hours of work per week for the last quarter prior to the election eligibility date. Davison- Paxon, 185 NLRB at 23–24; Steppenwolf Theatre, 342 NLRB at 71. The Board has made it clear that the Davi- son-Paxon formula should be followed absent a showing of special circumstances. Trump Taj Mahal Casino, 306 NLRB at 295. The Board has found special circum- stances in cases involving the entertainment industry where irregular patterns of employment may exist, and has fashioned eligibility formulas to meet those circum- stances. For example, in Julliard School, 208 NLRB 153 (1974), the employer—an undergraduate and graduate school of music, drama, and dance—staged productions for educational, rather than commercial purposes. Fur- ther, unlike commercial productions, the employer staged relatively few productions per year, and those produc- tions averaged three to four performances each. Under those facts, the Board determined that the eligibility for- mula should encompass employees who had worked on at least two productions for a total of 5 days over 1 year, or at least 15 days over a 2-year period.6 The Board in recent years, however, has consistently applied the standard Davison-Paxon formula to enter- tainment industry employers that operate on a year-round basis. In Steppenwolf Theatre, the employer was a pro- fessional theater company with a year-round season in 6 See also DIC Entertainment, LP, 328 NLRB 660 (1999), enfd, 238 F.3d 434 (D.C. Cir. 2001) (employees eligible who worked on at least two productions for at least 5 working days during last 12 months, or who worked at least 15 days in those 12 months); American Zoetrope Productions, 207 NLRB 621 (1973) (employees eligible where they worked two productions during the past year); and Medion, Inc., 200 NLRB 1013 (1972) (employees eligible where they worked two pro- ductions for 5 days over 1 year). COLUMBUS SYMPHONY ORCHESTRA 525 which it performed 14 different shows during 48-50 weeks. The employer hired casual employees from an informal pool of employees who previously worked for the employer, some of whom worked 1-2 days and then were not needed for a period of time, whereas others worked more hours per week or on a more frequent ba- sis.7 The Board reversed the Regional Director’s applica- tion of the Juilliard School formula, supra, finding no special circumstances warranting a departure from the Davison-Paxon formula. The Board emphasized the theater’s “regular and constant” schedule of 500 per- formances over the course of a year, and the fact that the theater’s permanent full-time staff members performed a substantial majority (70 percent) of the production work. The Board concluded that the application of the Juilliard School “special circumstances” voting eligibility formula was “overly inclusive, including those with only the most peripheral interest in the [e]mployer’s terms and condi- tions of employment.” Steppenwolf Theatre, 342 NLRB at 72. The Board again applied the standard Davison-Paxon formula in Wadsworth Theatre Management, reversing the Regional Director’s application of the Juilliard School formula. The employer was a professional thea- tre company with a regular, consistent schedule of annual productions. The Board reiterated that the Davison- Paxon formula is the “standard formula” for determining the voting eligibility of part-time and on-call employees, and found no special circumstances warranting a depar- ture from the application of Davison-Paxon. Wadsworth Theatre Mgmt., 349 NLRB 122, 123. In light of this well-established precedent, we find that the Regional Director erred in not applying the tradi- tional Davison-Paxon formula in this case. The Em- ployer is a professional performing symphony orchestra with a year-round, 46-week schedule of performances, 7 The Board pointed out that the employer’s payroll records showed “a wide variance in both the frequency of work and the total number of hours worked by part-time employees.” Steppenwolf Theatre, 342 NLRB at 70 fn. 3 (2004). including performances during the summer. That the Orchestra performs at an outdoor venue during the sum- mer is no more a “special circumstance” than are its per- formances at venues other than the Ohio Theater during other times of the year. Furthermore, although the ma- jority of casual employees do, in fact, work during the summer, the Employer hires on-call employees, as nec- essary, throughout its entire performance season. More- over, the Employer’s full-time production employees perform the vast majority of the annually-required pro- duction work. Further, the employment pattern over the past several years does not establish that the stagehands who worked during the summer of 2006 could reasonably expect that they would be employed in the summer of 2007. Mi- chael Dooley testified that he had no idea if he would be called to work as Silva’s assistant in the summer of 2007. Dooley stated that his chance of employment was strictly theoretical, as it depended on whether some other stage- hand committed to the job as Silva’s assistant, in which case any expectation of employment for the other three stagehands disappeared. Furthermore, even when the four named stagehands were employed over the past sev- eral years, they worked on an irregular and intermittent basis. Under these circumstances, we find no special circum- stances that would warrant deviating from the standard Davison-Paxon eligibility formula in this case. Nor do we find a logical basis for the Regional Director’s use of the summer of 2006 as the eligibility period for an elec- tion to be held in 2007. Accordingly, we reverse the Regional Director’s use of a modified Davison-Paxon eligibility formula, and we direct that the traditional Davison-Paxon formula be used. ORDER This proceeding is remanded to the Regional Director for appropriate action consistent with this Decision and Order.