Kansas City Repertory Theatre, Inc.

KANSAS CITY REPERTORY THEATRE, INC. 147 Kansas City Repertory Theatre, Inc. and Kansas City Federation of Musicians, Local 34–627, A.F.M., Petitioner. Case 17–RC–12647 November 16, 2010 DECISION ON REVIEW AND ORDER1 BY MEMBERS BECKER, PEARCE, AND HAYES On December 28, 2009, the Regional Director for Re- gion 17 issued a Decision and Direction of Election (per- tinent portions are attached). He found that the peti- tioned-for unit of musicians was an appropriate unit for collective bargaining. In determining voter eligibility, the Regional Director applied the Juilliard eligibility formula. 2 Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employer filed a timely request for review. The Employer contends that the musicians are not eligible to vote because the re- quested unit consists entirely of temporary or irregularly employed casual employees who do not have any estab- lished pattern of regular employment or any reasonable or substantial expectation of continued or future em- ployment, and thus no eligibility formula is appropriate. On May 24, 2010, the Board granted the Employer’s request for review. The Employer filed a brief on re- view. After carefully reviewing the entire record, includ- ing the brief on review, we have decided to affirm the Regional Director’s decision. To begin, the Employer’s request for review relies solely on cases that hold that temporary or intermittent employees cannot vote in an election taking place in a unit including full-time or regular part-time employees with whom the temporary or intermittent employees do not share a community of interest.3 The cases cited by the Employer are inapposite here because all of the em- ployees in the petitioned-for unit work intermittently, and the Employer does not argue that they do not share a community of interest with one another. The logical consequence of the Employer’s argument is that tempo- rary or intermittent employees cannot exercise the rights vested in employees by Section 9 of the Act. However, no such exclusion appears in the definition of employees 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Juilliard School, 208 NLRB 153, 155 (1973). Under this formula, all musicians employed by the Employer on two productions for a total of 5 working days over a 1-year period or 15 days over a 2-year period would be included in the unit. 3 See Columbus Symphony Orchestra, Inc. 350 NLRB 523 (2007); Wadsworth Theatre Management, 349 NLRB 122 (2007); Steppenwolf Theatre Co., 342 NLRB 69, 71 (2004); Marian Medical Center, 339 NLRB 127, 128 (2003); and Trump Taj Mahal Casino, 306 NLRB 294 (1992), enfd. 2 F.3d 35 (3d Cir. 1993). or elsewhere in the Act. Although the employees in the petitioned-for unit work intermittently, in many indus- tries employees with little or no expectation of continued employment with a particular employer engage in stable and successful collective bargaining—for example, ac- tors and construction workers, to name just two such groups.4 We believe the Act vests in such employees, rather than in the Board, the decision whether they will benefit from collective bargaining. See Management Training Corp., 317 NLRB 1355 (1995). Accordingly, we find that the employees in the petitioned-for unit had a right to petition and the Regional Director properly processed that petition. The only issue remaining is whether the Regional Di- rector applied a proper eligibility formula. Here, the request for review does not argue that a different eligibil- ity formula should be applied. Rather, the request for review merely contends that the petitioned-for unit con- sists of temporary employees who are not eligible to vote under any of the Board’s eligibility formulas. Thus, we find that the Employer has not shown that the Regional Director’s use of the Julliard formula was unreasonable under the circumstances presented. For all of the above reasons, we conclude that the Re- gional Director applied an appropriate eligibility formula to determine whether the employees in the petitioned-for unit were eligible to vote. Accordingly, the Regional Director’s Decision and Direction of Election is af- firmed. ORDER This proceeding is remanded to the Regional Director for further appropriate action, including the opening and counting of the ballots cast in the January 22, 2010 mail ballot election. 4 Our dissenting colleague relies exclusively on DIC Entertainment, L.P., 328 NLRB 660, 660 (1999), enfd. 238 F.3d 434 (D.C. Cir. 2001), and American Zoetrope Productions, Inc., 207 NLRB 621, 622 (1973). However, in both of those cases, like here, the Board adopted eligibility formulas reasonably calculated to permit those employees to vote who shared a community of interest given the particular nature of their em- ployment. In other words, in both of those cases, the Board issued or declined to review the issuance of a direction of election. Neither the Employer nor our dissenting colleague cites any case in which a peti- tion for an election was dismissed solely on the grounds that the em- ployees seeking representation were temporary employees. Moreover, in the two cases cited in the dissent, the only evidence that employees had an “expectancy of future employment” was that some employees were rehired by the employer within a reasonable period of time. Simi- larly here, although the Employer does not maintain a recall list, there is evidence that some employees have been hired for multiple produc- tions and one employee was hired during more than one production season. Finally, although some musicians may work only on one pro- duction, the productions here include 25–45 performances and run approximately 1 to 2 months. 356 NLRB No. 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148 MEMBER HAYES, dissenting. I would reverse the Regional Director and dismiss the petition seeking a unit of only the Employer’s musicians. In the entertainment industry, where, as here, petitioned- for units may consist entirely of employees that have an irregular or sporadic pattern of employment, the Board devises formulas that deem eligible to vote those em- ployees that have a “real continuing interest in the terms and conditions of employment offered by the employer.” DIC Entertainment, L.P., 328 NLRB 660, 660 (1999), enfd. 238 F.3d 434 (D.C. Cir. 2001) (quoting Trump Taj Mahal Casino Resort, 306 NLRB 294, 296 (1992)). That is, employees in these circumstances are eligible to vote only if they “have a reasonable expectancy of future em- ployment with the Employer.” American Zoetrope Pro- ductions, Inc., 207 NLRB 621, 622 (1973). The evidence here fails to establish that the petitioned- for musicians have a reasonable expectation of future employment with the Employer. Rather, the evidence shows that the number of productions requiring musi- cians is limited and few musicians have ever performed in more than one of these productions. The Employer puts on seven to eight productions each season. During the past three seasons, it has only required the use of mu- sicians during one production each season. The styles and skill sets required of these musicians vary from pro- duction to production. Indeed, only one musician has ever performed in more than one season. During the current season, although the Employer, for the first time, put on back-to-back productions requiring musicians, only a few musicians appeared in both productions. Moreover, the Employer lacks a single, standardized means for recruiting musicians, such as a call or hiring list of previously employed musicians. Given this mini- mal evidence of rehire, even those few musicians who happened to have performed during two productions this season cannot reasonably expect to work in the future for the Employer. Contrary to the Regional Director, there is thus no reason to apply an eligibility formula here. The term “temporary employee” is somewhat confus- ing here. Such an employee is hired on a date certain with the understanding that the job will end on a date certain, or at least at some time in the foreseeable future. In some instances, a person may have a reasonable ex- pectation of being hired again and again on the same temporary basis, i.e., each job period is for a limited term. That pattern of reemployment is not unusual in certain industries, including the entertainment industry. This was, in fact, the employment pattern of the “per diem” employees in The Juilliard School, 208 NLRB 152 (1974). In Juilliard, the Board stated that “the rec- ord shows that many of these employees work for peri- ods of time which indicate repetitive employment and which permit them reasonably to anticipate reemploy- ment in the near or foreseeable future. The Employer hires from the same labor market and some of these ‘per diems’ work for as long as 35 weeks. Although it uses no rehire list, we find that the Employer makes a practice of hiring employees who are experienced with the facili- ties at Juilliard and have proven through past perfor- mance their capacity to perform their job functions.” Id. at 154. In the factual context of Juilliard, a bargaining unit consisting entirely of “temporary employees” is viable, and an appropriate formula can be applied to determine who among the group of recurring hires worked often enough to be deemed eligible to vote. The temporary employees in the present case are of a different kind, however. Virtually all of the live musicians work once, for a limited time on a particular stage production, and never return to work for the Employer again. Their sta- tus is no different from temporary employees in many other industries who have no expectation of reemploy- ment with a particular employer, no community of inter- ests with permanent employees of that employer, and no continuing community of interest among themselves relative to that employer’s workplace. I question whether parties can engage in stable and successful collective bargaining for a unit consisting solely of such employ- ees. Thus, under these circumstances, I would dismiss the petition. APPENDIX DECISION AND DIRECTION OF ELECTION . . . . I. DECISION For the reasons detailed herein, I conclude that the nature of the Employer’s operations warrants the use of an alternative eligibility formula as set forth in The Julliard School, 208 NLRB 153 (1974), and pursuant to that formula, a bargaining unit of musicians employed by the Employer does constitute an appropriate unit for the purpose of collective-bargaining. Accordingly, the following employees of the Employer con- stitute a unit appropriate for the purpose of collective bargain- ing with in the meaning of Section 9(b) of the Act: All musicians employed by the Kansas City Repertory Thea- tre, Inc. at its venues located at 4949 Cherry, Kansas City, MO 64110 and 1 HR Block Way, Kansas City, MO 64105, on two productions for a total of five working days over a one-year period, or 15 days over a two-year period, but EXCLUDING the artistic director, music director, administra- tive and/or managerial employees, and supervisors as defined by the Act, and all other employees. KANSAS CITY REPERTORY THEATRE, INC. 149 II. ISSUE The Petitioner seeks a bargaining unit of all musicians cur- rently employed by the Employer for the 2009–2010 season. The Petitioner maintains that the petitioned-for employees con- stitute an appropriate unit through the use of the Board’s tradi- tional eligibility formula set forth in Davison-Paxon Co., 185 NLRB 21 (1970), or the alternative formula established in The Julliard School, 208 NLRB 153 (1974), due to the “unique conditions” found within the Employer’s industry. The Em- ployer asserts that the requested unit is inappropriate, regardless of the eligibility formula utilized, because the petitioned-for unit consists of temporary or irregularly casual employees who have no reasonable expectation of continued employment. At the close of the hearing the parties were invited to submit briefs on the issues raised herein. III. OVERVIEW OF OPERATIONS The Employer, a Missouri corporation, operates two theatres in Kansas City, Missouri at which it provides live professional theatrical performances. The Employer’s Spencer Theatre is located at 4949 Cherry on the campus of the University of Mis- souri-Kansas City and its Copaken Stage is located in the Pow- er & Light District in downtown Kansas City. The Employer’s staff operates year-round planning and producing shows. Since at least its 2006–2007 season, the Employer puts on 7 to 8 pro- ductions each year covering a 9–1/2 to 10-month period. Each season is different from the previous one with presentations of new performances. Each production includes approximately 25 to 45 performances. In addition to its performances, the Em- ployer also holds actor forums, meetings with creative teams, educational activities with student talk-backs with audience members, and special event nights. The Employer has a board of directors, with an artistic direc- tor that serves as the head of the theatre. Under the artistic director are the managing director, who supervises all adminis- trative employees, and the producing director, who supervises the production employees. The Employer utilizes anywhere between 30 to 60 employees on its production side to put on a show, depending on the size of the production. This includes, but is not limited to, directors, writers, actors, performers, stagehands, set directors, costume personnel, and backstage help. During each performance season of 2006–2007, 2007–2008, and 2008–2009, the Employer conducted one musical produc- tion in which it hired musicians. In the current 2009-2010 sea- son, the Employer has conducted two such musical shows. Into the Woods ran from September 11 through October 14, 2009. A Christmas Story, the Musical (hereafter referred to as Christ- mas Story), began on November 15, 2009 and is scheduled to end on January 3, 2010. The Employer also plans on perform- ing a third musical this season, Venice, scheduled to run from April 9, 2010 to May 9, 2010. The Employer hires musicians on an “as needed” basis, be- cause not all of its productions require the use of musicians. For example, a show might be a nonmusical production or the Employer might utilize recorded music or music provided by the show’s actors. The Employer uses a number of methods in determining whether to hire musicians and which musicians to hire. The Employer has used a creative team (the individuals who created the musical piece), local auditions, recommenda- tions from the musical director, and consultants in order to identify musicians that compliment a particular musical compo- sition. The styles and skill sets required of its musicians varies from show to show. The Employer does not give preferences or maintain a hiring list of those musicians it has hired for pre- vious performances. It uses both local musicians as well as musicians from around the country. For the 2009–2010 performance season, the Employer hired musicians for Into the Woods and Christmas Story and antici- pates hiring two musicians for Venice. The Employer hired 10 musicians to perform for the duration of Christmas Story until its scheduled closing date of January 3, 2010. Those musicians are Tom Aber, Stephanie Bryan, Daniel Doss, Jeff Harshbarger, Ron Hathorn, Stephen Molloy, Don Strom, Charles Wines, Sam Wisman, and Andrew Yates.2 These individuals were hired pursuant to letters of understanding signed by each musi- cian and the Employer’s general manager. Each letter of un- derstanding sets forth the musician’s part or instrument in Christmas Story, the specific duration of employment for Christmas Story beginning November 15, 2009 and terminating on January 3, 2010, rehearsal and performance schedules,3 and the terms and conditions of the musician’s employment while employed by the Employer for that designated period of time. Of the ten musicians hired for Christmas Story, only Daniel Doss, Jeff Harshbarger, and Stephen Molloy have previously been employed by the Employer as a musician in one of its performances. Harshbarger and Molloy worked on Into the Woods from September 7 through October 11, 2009 and Doss worked on the same production beginning August 18, through October 11, 2009. Harshbarger had also been previously hired by the Employer as a musician in A Marvelous Party between February 22, 2008 and March 23, 2008. Although the Employ- er anticipates hiring two musicians for the upcoming produc- tion of Venice, it does not plan on hiring any of the current musicians performing in Christmas Story as Venice is a “hip- hop” production and will require a keyboard and drum skill set, which are a different skill set than those possessed by the musi- cians currently performing in Christmas Story. As of the date of the hearing, the Employer is considering 40 to 50 titles for its 2010–2011 season, but has not made any decisions on particu- lar shows to be conducted, musical or otherwise. However, it does know that it will not have a repeat performance of Christ- mas Story next season. IV. ANALYSIS The Board’s most widely used formula for determining voter eligibility for on-call or part-time employees was set forth in Davison-Paxon Co., 185 NLRB 21, 23–24 (1970). See Step- penwolf Theatre Co., 342 NLRB 69 (2004); Wadsworth Thea- tre Management, 349 NLRB 122 (2007); Columbus Symphony 2 The parties stipulated at hearing that these named individuals are not supervisors under Section 2(11) of the Act. 3 The letters of understanding provided by the Employer at hearing in Employer’s Exhibit 1 reference an enclosed rehearsal and perfor- mance schedule for Christmas Story. However, the schedules were not included as a part of the exhibit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150 Orchestra, 350 NLRB 523 (2007). Under Davison-Paxon, “an employee is deemed to have a sufficient regularity of employ- ment to demonstrate a community of interest with unit employ- ees if the employee regularly averages 4 or more hours of work per week for the last quarter prior to the eligibility date.” Da- vison-Paxon at 23–24. However, the Board has also fashioned alternative eligibility formulas to fit unique conditions of par- ticular industries where special circumstances exist in order “to permit optimum employee enfranchisement and free choice, without enfranchising individuals with no real continuing inter- est in the terms and conditions of employment offered by the employer.” Trump Taj Mahal Casino, 306 NLRB 294, 296 (1992), enfd. 2 F.3d 35 (3d Cir. 1993); DIC Entertainment, L.P., 328 NLRB 660 (1999), enfd. 238 F.3d 434 (D.C. Cir. 2001). The Board has found that “special circumstances” in- clude irregular employment patterns, specifically within the entertainment industry. See The Julliard School, 208 NLRB 153 (1974) (employees were eligible to vote where they had worked on two productions for a total of 5 days over a 1 year period or at least 15 days over a 2-year period); American Zoe- trope Productions, 207 NLRB 621 (1973) (employees worked two productions over a 1-year period); DIC Entertainment, L.P., supra (two productions totaling 5 days in a single year or at least 15 days over a 1-year period). The Petitioner takes the position that special circumstances exist here to warrant the application of the kind of formula found in The Julliard School, but believes the traditional Da- vison-Paxon standard is more appropriate because it would “permit optimum employee enfranchisement and free choice.” Although the Petitioner believes a literal reading of Julliard’s 2-year standard would allow for all 10 of the current petitioned- for employees to be eligible to vote, it believes that this would unquestionably be the case under the Davison-Paxon formula. The Employer, in addition to its position that the petition should be dismissed because the Petitioner seeks a unit of tem- porary or casual employees who have no reasonable expecta- tion of continued employment, asserts that neither Julliard nor Davison-Paxon is appropriate. With respect to Julliard, the Employer argues that this case is distinguishable because (1) Julliard involved a “degree granting, educational corporation” and not a “professional theatre; (2) Julliard’s productions did not run for weeks at a time and involved large, highly experi- enced casts; (3) Julliard held few productions each year and each production consisted of 3 or 4 performances as opposed to the instant case where each production involves 25 to 40 per- formances; in Julliard, the union sought to represent the “entire stage department” and here it seeks only a unit of 10 musicians; (4) the unit in Julliard included 5 full-time employees and there are no such employees in the instant petitioned-for unit; (5) the record in Julliard indicated that many of the petitioned-for employees worked for periods of time which indicate repetitive employment and permitted them to reasonably anticipate future employment with the Employer; and (6) Julliard hired employ- ees from the same labor market and some employees worked for as many as 35 weeks when the musicians in the current case are hired from all over the country and none of them have worked for the Employer for more than a month and a half. With respect to the use of the Davison-Paxon formula, the Em- ployer submits that none of the current ten musicians would be eligible to vote because the Board excludes employees where they work on an “intermittent, sporadic basis for a temporary period of time.” Davison-Paxon at 23. I find that the facts of this case shows a “special circum- stance” more aligned with that of Julliard School and that the formula set forth within that decision is appropriate and appli- cable. The Employer is correct that the Board has previously rejected alternative formulas in cases such as Columbus Sym- phony Orchestra, 350 NLRB 523 (2007), Wadsworth Theatre Management, 349 NLRB 122 (2007), and Steppenwolf Theatre Co., 342 NLRB 69 (2004). But as with every case, whether special circumstances exist and warrant a different formula than Davison-Paxon requires a fact-driven analysis. A critical con- sideration in such an analysis is the employment pattern that is the result of the length and number of relevant productions put on by the employer as well as the extent that the employer re- lies on on-call or per diem employees to perform its work. Steppenwolf at 71–72. For example, in Columbus Symphony Orchestra, 350 NLRB 523 (2007), an alternative formula was not found appropriate because the employer had a year-round, 46-week schedule of productions for the petitioned-for unit, involving a full-time staff alongside a complement of on-call, as-needed employees. In Wadsworth Theatre Management, 349 NLRB 122 (2007), the petitioned-for employees performed in at least four productions lasting 4 weeks each, in addition to other regularly scheduled weekly and special events. It is not disputed that the Employer in the instant case performs 7 to 8 productions per season with each production generating 25 to 40 separate performances. However, those numbers account for all of the Employer’s productions. The productions that are relevant are those in which the Employer hired and utilized musicians. The record evidence established that dating back to its 2006–2007 season, the Employer has retained musicians for one musical production each season, with that number increas- ing to three musical shows during the current 2009–2010 sea- son. Musicians are not hired for the season, but for single pro- ductions and can result in a varying number of actual hires. For example, ten musicians are employed for Christmas Story while only two are anticipated for Venice. In Julliard, special cir- cumstances were found to exist because the employer in that case conducted relatively few events each year with three or four performances at the most and they relied predominantly on per diem employees. The spirit of Julliard allows for the opti- mum employee enfranchisement and free choice that is sought by the Board in just this type of case: an entertainment industry employer with a group of employees who, but for an irregular employment pattern, would otherwise constitute an appropriate unit for the purpose of collective bargaining. Although the Petitioner submits that the Davison-Paxon formula is more appropriate, I disagree. Use of the 4-hour average over the previous quarter is a more restrictive eligibility formula. While all of the petitioned-for employees are currently eligible under Davison-Paxon, use of that formula would serve to disenfran- chise those employees whom, notwithstanding their irregular employment pattern have a real continuing interest in the terms and conditions of employment offered by the Employer. Therefore, I find that application of the alternative formula set KANSAS CITY REPERTORY THEATRE, INC. 151 forth in Julliard is warranted because of the special circum- stances created by the infrequency of its musical productions and the irregular hiring pattern of musicians. Accordingly, I find, consistent with The Julliard School, 208 NLRB 153 (1974), that musicians employed by the Employer on two pro- ductions for a total of 5 working days over a 1-year period, or 15 days over a 2-year period have a community-of-interest warranting their inclusion in the voting unit.4 4 The testimony set forth at hearing did not establish a sufficient ba- sis for limiting the unit to only those musicians employed by the Em- ployer for the 2009–2010 performance season.