THE WANG THEATRE INC. d/b/a CITI PERFORMING CENTER

368 NLRB No. 107 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 Wang Theatre, Inc. d/b/a Citi Performing Arts Center and Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL–CIO. Case 01–CA–179293 October 30, 2019 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN AND KAPLAN This case is on remand from the United States Court of Appeals for the First Circuit. On January 5, 2016, Charg- ing Party Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL– CIO (the Union) filed a petition in Case 01–RC–166997 seeking to represent a unit of approximately 16 local mu- sicians employed by the Respondent. The Acting Re- gional Director issued a Decision and Direction of Elec- tion on January 28, 2016. Among other things, the Acting Regional Director rejected the Respondent’s contention that the petition should be dismissed because the Respond- ent was not the local musicians’ sole employer and had very little control over the local musicians’ terms and con- ditions of employment. The Respondent thereafter filed a request for review, and the Union filed an opposition. On June 3, 2016, the Board denied review in an unpublished order. In the meantime, pursuant to a majority vote in the election, the Union was certified on March 30, 2016, as the exclusive collective-bargaining representative of the local musicians. The Union thereafter filed an unfair labor practice charge in the instant case, alleging that the Respondent re- fused to recognize and bargain with the Union in the cer- tified unit in violation of Section 8(a)(5) of the Act. In its answer to the complaint, the Respondent admitted that it refused to recognize the Union. The Board granted a mo- tion for summary judgment on November 10, 2016, order- ing the Respondent to recognize and bargain with the Un- ion. The Wang Theatre, Inc. d/b/a Citi Performing Arts Center, 364 NLRB No. 146 (2016). On February 14, 2017, the Board denied the Respondent’s motion for re- consideration. The Wang Theatre Inc. d/b/a Citi Perform- ing Arts Center, 365 NLRB No. 33 (2017). The Board 1 Official notice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d); Frontier Hotel, 265 NLRB 343 (1982). 2 We take administrative notice that the venue has since been renamed The Boch Center. See https://www.bochcenter.org/about-us/news/2016/ citi-performing-arts-center-to-be-renamed-the-boch-center. subsequently petitioned the First Circuit for enforcement of its order. On January 18, 2018, the Deputy Associate General Counsel filed a motion seeking remand of the case “for reconsideration in light of the Board’s recent decision” in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). The Court granted the motion and remanded the case to the Board on January 31, 2018. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has carefully considered the record1 in light of the court’s remand. For the reasons that follow, we re- affirm our finding that the Respondent has violated Sec- tion 8(a)(5) for refusing to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of the petitioned-for local musicians. Facts The Respondent operates the Citi Performing Arts Cen- ter2 in Boston, Massachusetts, which includes a perfor- mance venue used for theatrical productions. The Re- spondent does not produce its own performances, but con- tracts with other producers to bring theatrical productions to the venue. Depending on the production, the Respond- ent will act as either lessor or promoter.3 The producer of the show decides whether it will use live or recorded mu- sic, and for productions involving live music, the producer may ask the Respondent to hire local musicians to supple- ment whatever musicians travel with the production. The record confirms that the Respondent (or its agent) hires local musicians, and that the local musicians receive their wages and benefits from the Respondent (although the Respondent may be reimbursed for such expendi- tures). The record also confirms that the local musicians perform under the direction of the producers’ conductors, who exert artistic control over the local musicians (i.e., what music is performed and how it is played). The record is otherwise silent as to who controls the local musicians’ other terms and conditions of employment, but these terms are ultimately determined by the contract negotiated be- tween the Respondent and a given producer.4 The Re- spondent and the Union were once parties to a collective- bargaining relationship covering local musicians, but the last contract between them expired in 2007. The Respond- ent’s sole witness admitted that the Respondent’s way of 3 When the Respondent acts as lessor, the producer assumes all ex- penses and profits from the production; when the Respondent acts as pro- moter, it advertises the production and shares in costs and revenue. 4 The record contains several examples of such contracts, but here too they contain little information concerning the terms and conditions of the local musicians, save that the Respondent is responsible for securing their services. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD doing business with producers had not changed since 2007. Discussion In the underlying representation case, the Board found that the Respondent is an employer of the local musicians within the meaning of Section 2(2) of the Act and the pe- titioned-for single employer unit is presumptively appro- priate under the Act. The Respondent argued, among other things, that the producers are the local musicians’ “primary” employers. Provided that the requisite em- ployer-employee relationship exists, however, the Board has long maintained that if a petitioner seeks the employ- ees of an employer, it will not require the naming of all potential joint employers and the litigation of their poten- tial relationship with the named employer. See Chelms- ford Food Discounters, 143 NLRB 780, 781 (1963). These findings and principles are not implicated by the court’s remand, and we therefore decline to reconsider them. The Respondent has subsequently called into questions whether it has a joint employer relationship with the pro- ducers. Based on the foregoing, however, there is also no need to reconsider the case in light of any joint-employer precedent, including the since-vacated Hy-Brand Indus- trial Contractors. Hy-Brand purported to overrule the standard for finding joint-employer status set forth in Browning-Ferris Industries, 362 NLRB 1599 (2015). Following the court’s remand in this case, the Board va- cated Hy-Brand, as a result of which the overruling of Browning-Ferris was of no force or effect. Hy-Brand In- dustrial Contractors, Ltd., 366 NLRB No. 26 (2018). The Board is currently engaged in rulemaking concerning the proper standard for finding joint employment,5 but regard- less of the applicable standard joint-employer status is simply not relevant here. Unlike the instant case, Hy- 5 The Standard for Determining Joint-Employer Status, 83 Fed. Reg. 46681 (Sep. 14, 2018). 6 The Respondent’s citation of cases involving situations in which a petitioned-for unit includes employees who are both singly-employed by a user employer and employees who are jointly-employed by the user and a supplier employer are inapposite, as there is no contention here that the petitioned-for unit of local musicians contains both singly- and jointly-employed employees. See Miller & Anderson, 364 NLRB No. 39 (2016); Oakwood Care Center, 343 NLRB 659 (2004); M. B. Sturgis, Inc., 331 NLRB 1298 (2000); Greenhoot, 205 NLRB 250 (1973). Like- wise, the Respondent’s citation of Northwestern University, 362 NLRB 1350 (2015), is unavailing. There, the Board declined to assert jurisdic- tion over a petitioned-for unit of Northwestern University football play- ers who received grant-in-aid scholarships. Without passing on whether the football players were statutory employees, an issue that the Board found “does not have an obvious answer,” the Board held that in light of the control exercised by sports leagues over the individual teams and fact that the overwhelming majority of Northwestern’s competitors were public colleges and universities over which the Board cannot assert ju- risdiction, it would not promote stability in labor relations to assert Brand was an unfair labor practice case in which the Gen- eral Counsel alleged joint-employer status as part of the complaint, and Browning-Ferris involved a petition that named both alleged employing entities as joint employer. Again, under Chelmsford Food Discounters, when a peti- tion seeks to bargain with only one employer, there is no need to inquire into the existence of other possible joint employers.6 Aside from the fact that no joint-employer precedent has a bearing on this case, our review of the record in the underlying representation case establishes that the Re- spondent did not raise any joint-employer argument to the Acting Regional Director or to the Board. Rather, the Re- spondent cited Browning-Ferris and other cases implicat- ing joint-employer principles only by way of analogy in service of its argument that the petition should be dis- missed because the Respondent is not the sole employer of the petitioned-for local musicians. Indeed, the Re- spondent’s Request for Review expressly stated that the Respondent “does not claim that a joint-employer unit is appropriate” and commented that joint-employer status was “entirely irrelevant.”7 Thus, by the Respondent’s own admission, no joint-employer argument was placed before the Board in the representation proceeding.8 To the extent that the Respondent subsequently has asserted that the Board should have engaged in a joint-employer analysis, it accordingly waived the argument by failing to raise it in the representation proceeding. In sum, no joint-employer argument was properly raised to the Board in the underlying representation proceeding, and even if it had been properly raised, under well-estab- lished precedent the existence of potential joint employers is not relevant where, as here, the record establishes that the petitioned-for employer is an employer of the peti- tioned-for employees. As the petitioned-for unit in Case jurisdiction in that case. Those circumstances are not present here. Moreover, the Board was emphatic that its reasoning and holding in Northwestern was limited to the particular facts of that case. See id. at 1350, 1352, 1355. Chairman Ring and Member Kaplan agree that Miller & Anderson, supra, is distinguishable for the reasons stated above. They do not pass on whether it was correctly decided and would be open to reconsidering it in a future appropriate case. 7 Further, the Respondent’s Request for Review even agreed with the Acting Regional Director’s finding that the Respondent had not estab- lished the existence of any joint-employer relationship. 8 For this reason, the Deputy Associate General Counsel’s motion for remand incorrectly stated that Hy-Brand had “eliminate[d] the basis for the Board’s analysis, and rejection, of the [Respondent’s] joint-employer defense.” The Respondent raised no such defense in the representation case, so the issue was not before the Board. And again, even if the issue had been raised to the Board, denial of review was warranted because, under Chelmsford Food Discounters, supra, there is no joint-employer “defense” in these circumstances. THE WANG THEATRE, INC. D/B/A CITI PERFORMING ARTS CENTER 3 01–RC–166997 was properly certified, the Respondent’s refusal to bargain violated Section 8(a)(5) of the Act. Accordingly, we reaffirm our previous Order in this case. ORDER The National Labor Relations Board affirms its Deci- sion and Order issued in this proceeding on November 10, 2016 (reported at 364 NLRB No. 146), and orders that the Respondent, The Wang Theatre, Inc. d/b/a Citi Perform- ing Arts Center, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth therein. Dated, Washington, D.C. October 30, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Lauren McFerran, Member _____________________________________ Marvin E. Kaplan, Member (SEAL) NATIONAL LABOR RELATIONS BOARD