Walt Disney Parks and Resorts, U.S., Inc.

373 NLRB No. 99 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. Walt Disney Parks and Resorts, U.S., Inc. and Ameri- can Guild of Variety Artists Petitioner. Case 21– RC–306324 September 11, 2024 DECISION ON REVIEW AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On July 21, 2023, the Regional Director issued a Deci- sion and Direction of Election in which he concluded that the petitioned-for specialty performers do not share a com- munity of interest with the employees in the existing unit and that a self-determination election accordingly is not appropriate; he instead directed an election in a standalone unit of specialty performers. In accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, on August 25, 2023, the Petitioner filed a timely request for review, contending that the specialty performers share a community of interest with the em- ployees in the existing unit and that the specialty perform- ers should have been given the opportunity to vote on whether to join the existing unit. The Employer filed an opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Petitioner’s request for review is granted as it raises substantial issues warranting review. Having carefully considered the entire record, including the request for re- view and the opposition, we find that the specialty per- formers share a community of interest with employees in the existing unit. Accordingly, we reverse the Regional Director and conclude that the specialty performers should be given the opportunity to vote on whether they wish to be included in the existing unit. I. PROCEDURAL HISTORY The Petitioner represents an existing bargaining unit of performers who work for Walt Disney Parks and Resorts, U.S., Inc. (the Employer) at Disneyland Resort in Ana- heim, California. On October 31, 2022, the Petitioner filed a petition seeking a self-determination election to as- certain whether the Employer’s specialty performers wish to join the existing unit. The Employer contended that a self-determination election is not appropriate because the specialty performers do not share a community of interest with the performers in the existing unit. On July 21, 2023, the Regional Director issued his decision in which he con- cluded that the specialty performers do not share a com- munity of interest with the existing unit members and that, 1 As of the hearing, held December 6–9, 2022, the most recent col- lective-bargaining agreement was effective from January 31, 2018, through January 30, 2023. therefore, a self-determination election is inappropriate. The Regional Director determined that the Petitioner could, however, proceed to an election to represent the specialty performers in a standalone unit. The Petitioner prevailed in the election, and, in the absence of objections or determinative challenges, the Regional Director issued a Certification of Representative on August 22, 2023. The Petitioner then timely filed a request for review, and the Employer filed an opposition. II. FACTS Disneyland Resort is composed of two individual and separately ticketed theme parks, Disneyland and Disney California Adventure (DCA). Disneyland and DCA are connected by an esplanade that takes approximately 10 minutes to traverse. The Petitioner represents an existing unit of performers which, according to the unit description in the most recent collective-bargaining agreement be- tween the parties,1 includes “singers, ice skaters, dancers, comedians, chorus and principal/featured performers, ac- robats, exotics, and circus performers.” According to a Side Letter of Agreement executed by the parties in 2020, the existing unit also includes the classification of high in- tensity stunt performer. The performers in the existing unit perform in shows throughout Disneyland Resort, in- cluding The Musical Tale of the Lion King, Disneyland Forever (the nighttime fireworks show), Castle Fantasy Faire, the Dapper Dans, and Tomorrowland Terrace Dance Party in Disneyland; Avengers Assemble and Spi- der-Man Encounter at DCA; and Doctor Strange, Guard- ians of the Galaxy, Citizens of Buena Vista, Sarge and the Green Army Men, and First Officer at unspecified loca- tions within Disneyland Resort. The petitioned-for specialty performers perform in a show called Fantasmic!, which takes place on Tom Saw- yer Island in Disneyland. At the time the petition was filed, none of the cast members in Fantasmic! were repre- sented by the Petitioner. The show lasts approximately 27 minutes and runs twice a night, at 9 and 10:30 p.m. It runs 7 days a week during busy seasons (such as the summer and winter holidays) and from Friday through Sunday at other times. The show stars Mickey Mouse and involves both special effects (such as lights and projections on wa- ter) and live performers on boats. The boats sail past the audience while the cast members on the boats perform scenes related to classic Disney movies, such as The Lion King, Beauty and the Beast, and The Jungle Book. The petitioned-for specialty performers perform on the pirate ship Columbia, which is designed to look like the Black Pearl ship from Disney’s Pirates of the Caribbean movie. The Columbia passes by the audience approxi- mately 10 minutes into Fantasmic! During the ship’s pass, which lasts about 3 and 1/2 minutes, five specialty DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 performers perform on the Columbia: one as Captain Jack Sparrow; one as Lizzie; and the others as Pirates One, Two, and Three. Jack and Lizzie lip sync to prerecorded dialogue while embodying the mannerisms of their char- acters, and all five specialty performers perform various acrobatic activities, including rappelling down, climbing up, and swinging on ropes; hanging upside-down; swing- ing over the water on the side of the ship; doing “slides for life;”2 engaging in choreographed swordplay; being cata- pulted into the air on bungee cords; bouncing on trampo- lines and diving boards; running on highwires; and per- forming “flights,” which entail being lifted by a pulley system. The specialty performers also perform general choreography such as pretending to be stabbed or kicked, flailing helplessly, and executing generic “pirate choreog- raphy.” For certain parts of the performance, the specialty performers do not use safety gear.3 During the show, two stunt technicians work with the specialty performers to co- ordinate and assist with the performance. Before the show, the specialty performers clock into the Wishes Building, an area of Disneyland that is not acces- sible to the general public, around 7 or 7:30 p.m. The spe- cialty performer acting as lead for the night checks in with the stage manager, while those performing the roles of Jack and Lizzie go to hair and makeup. Then, all the per- formers travel to Tom Sawyer Island and board the Co- lumbia. They have approximately 45 minutes to warm up before the performance begins. During this time, the spe- cialty performer acting as lead for the night sets up some of the performance apparatuses on the boat. Both the lead and the other specialty performers conduct safety inspec- tions of the equipment on the boat before each perfor- mance. Between shows, the specialty performers stay to- gether on the Columbia and reinspect the show elements for the second show. After the second show, they return to the Wishes Building to clock out. Regardless of actual worktime, Pirates One, Two, and Three are paid a minimum of 5 hours per shift. Lizzie and Jack are paid a minimum of 5-1/2 hours per shift. (The additional minimum is due to the time spent in hair and makeup.) The lead for each night is paid a minimum of 8 hours per shift. Specialty performers are paid between $25 and about $34 per hour and are considered part-time employees. Operations Manager Chris Jakwerth testified that the existing unit also includes casual and/or part-time employees. Most of the specialty performers have day jobs, such as working as an accountant or doing stunt work 2 A slide for life is a slide down an anchored rope from one point to a lower point. When executing a slide for life, the specialty performers use a circus loop (a safety precaution that keeps a performer’s hand se- cured to a rope) on the rope and brake using their hands. 3 For example, Pirate One bounces off a diving board and swings over the water on the side of the ship using only his grip strength to hold onto the rope. If he loses his grip, he will fall into the water, and the show will have to be stopped for safety reasons. in other live shows outside of Disneyland Resort,4 in TV productions, or in films. The internal job posting for specialty performers states that they must have “gymnastic abilities and experience in the following: rope climb (30’), high falls (30’), slide for life, rope swings, high wire, mini-tramp and gymnastics bungee.” The job requirements also include live stage ex- perience and willingness to work in all weather condi- tions. Those applying to work as a specialty performer on Fantasmic! must submit a stunt reel, headshot, and re- sume; those who are called back for an audition are ex- pected to climb a rope without the use of their lower bod- ies, execute a rope swing, execute a slide for life, perform some trampoline work, carry out swordfight choreogra- phy, and read a few lines of dialogue for either Jack or Lizzie. The four specialty performers who testified at the hearing have backgrounds in gymnastics; two also have backgrounds in martial arts, although that is not a require- ment of the position. Three of the specialty performers who testified at the hearing worked on other shows at Disneyland before Fan- tasmic! For most of those shows, the specialty performers worked in classifications not in the existing unit (nor oth- erwise represented by the Petitioner). In 2015, however, one of the petitioned-for specialty performers performed in Aladdin: A Musical Spectacular (Aladdin), in which the entire cast was represented by the Petitioner. The Aladdin show, which has since been discontinued, lasted approxi- mately 45 minutes and was performed at the Hyperion Theater in DCA. The specialty performer who was in Aladdin stated that her roles in Aladdin involved singing, dancing, tumbling, and face/body acting. The show also included some stage combat and work with harnesses or wires, such as when Aladdin performed a flight across the stage, and when Jafar was hoisted onto the stage in a giant snake puppet. The specialty performers who testified indicated that they do not usually interact with other cast members in Fantasmic! or with any of the other performers in the ex- isting unit. In this regard, Steve Rosen—the Petitioner representative who manages the existing unit and negoti- ated the most recent collective-bargaining agreement— testified that it is unusual for unit members performing in one show to interact with unit members performing in other shows, because many performers in the existing unit perform in only one show at a time. Operations Manager Jakwerth agreed that, as a general matter, performers in the existing unit do not interact with other unit members 4 Most notably, more than three of the petitioned-for specialty per- formers have previously performed in stunt/stage fight shows at Knott’s Berry Farm (another nearby amusement park), including the Wild West Stunt Show and/or The Hanging. At least three of the high intensity stunt performers in the existing unit have previously performed in those shows as well. WALT DISNEY PARKS AND RESORTS, U.S., INC. 3 (apart from those who are performing in the same show) in the course of their duties. Although the existing unit includes performers in a wide variety of shows and performances, the evidence at the hearing focused mostly on the high intensity stunt per- formers in the Avengers Assemble5 show, which is per- formed at the Avengers Campus section of DCA. Avengers Assemble takes place on the outside of a build- ing designed to look like the Avengers’ headquarters, with the audience standing at street level, about 30 feet away. The premise of the show is that superheroes Black Widow and Black Panther are fighting three villains (Taskmaster, Task Force Male, and Task Force Female), who are at- tempting to steal Vibranium6 from the Avengers. The high intensity stunt performers perform actions such as rappelling down and climbing up the building using har- nesses; performing a “ratchet pull” where the high inten- sity stunt performer is yanked backward through the air with a harness; and engaging in tightly choreographed fight sequences, involving both weapons and hand-to- hand combat. As with Fantasmic!, stunt technicians help to set up the show and assist with stunts. There are six performances of Avengers Assemble throughout the day. Nineteen high intensity stunt per- formers, all represented by the Petitioner in the existing unit, cover the performances throughout the week. Each character is represented by one full-time performer, who works 4 days a week, and by one part-time performer, who works 2 or 3 days a week. The remaining performers are substitutes, working about 1 or 2 days a week. All high intensity stunt performers are paid a minimum of 8 hours per shift and earn $33.62 per hour. They generally clock in at 9 a.m. and clock out at 4:30 p.m. Each day, one high intensity stunt performer is designated as the stunt captain, who oversees the safety of the stunts happening in the show and uses a checklist to check the integrity of the safety gear. The high intensity stunt performers generally clock in at DCA, but they can clock in at Disneyland. Af- ter clocking in, they have about 15 minutes to warm up before they perform a “fight call”—in which they run the full show—to get used to their stunt partners for the day. Finally, they head to the green room to get ready, which includes putting on their costumes (for everyone) and make-up (for Black Widow only). The job description for high intensity stunt performers requires “previous theatrical stunt experience and training, ability to uphold Character Standards, [and] skills in acro- batics or gymnastics.” It also states that high intensity stunt performers “must be able to complete the required strength test,” must have the “ability to retain acrobatic 5 The Avengers are a group of superheroes from the Marvel Cine- matic Universe, a movie franchise based on characters from Marvel comic books. 6 Vibranium is a fictional metal. Within Marvel mythology, it is rare and has extraordinary abilities to absorb, store, and release large amounts of kinetic energy. Vibranium is associated with the superheroes Black choreography and creative direction in a timely manner,” and “must maintain strength and skill level required for the show.” Applicants must submit a stunt reel, and callback auditions involve a choreographed fight with a bo staff,7 doing squats and pushups, and performing lines of dialogue. The one high intensity stunt performer who testified at the hearing has a background in gymnastics, as well as in boxing and karate. She has worked in several Petitioner- represented shows at Disneyland Resort, including Leg- ends of Frontierland (an improv show with guests) in 2014; Jingle Jangle Jamboree (a scripted melodrama with minimal singing and dancing) in 2014; Olaf’s Snow Fest (a singing and acting show) in 2014–2015; and the Jedi Training Academy (a scripted comedy with stage combat) from 2015–2018. This high intensity stunt performer joined Fantasmic! as a specialty performer in 2019, and she later started performing in Avengers Assemble when it first opened in June 2021. The parties stipulated that, at the time of the hearing, there were five high intensity stunt performers in Avengers Assemble who had formerly worked as specialty perform- ers in Fantasmic!, including the high intensity stunt per- former who testified at the hearing. Two of the petitioned- for specialty performers auditioned for roles as high inten- sity stunt performers in Avengers Assemble and were not offered the positions. Operations Manager Jakwerth tes- tified that they were not offered the positions because they did not have the skills for the roles, although he acknowl- edged that he had not reviewed their auditions and did not personally know what skills they lacked. Conversely, one of the specialty performers who was not offered a role in Avengers Assemble testified that she was not given a rea- son for why she did not get the position and that she would be “surprised” if it was because she did not have the nec- essary skills, as she was capable of performing all the stunts in the Black Widow part. Both the specialty performers and the high intensity stunt performers bear some risk of injury when performing in Fantasmic! and in Avengers Assemble. Both Fantas- mic! and Avengers Assemble have multiple safety checks throughout the show: if the performers indicate that they are not ready to perform a specific action, or if there is a problem at the last minute, there are contingencies so that they can perform alternative movements. The specialty performers and high intensity stunt performer who testi- fied all stated that, when performing in both Fantasmic! and Avengers Assemble, they need to carefully time, per- form, and coordinate their actions with the other perform- ers to avoid injury. As one of many examples, one Panther (who wears a suit of Vibranium) and Captain America (who bears a shield made of Vibranium and steel alloy). 7 According to the Employer, “[a] bo staff is a long stick that, in the context of combat, is used for blocking, striking, trapping, and pushing amongst other things.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 specialty performer explained that mistiming the “shackle drop” in Fantasmic! could result in the specialty per- former hitting the mast of the ship and possibly suffering a concussion or whiplash.8 One of the specialty performers testified that, prior to the COVID-19 pandemic, the specialty performers had al- ways been referred to as “stunts.”9 However, the Em- ployer’s stunt and special performance designer, Eric Mi- randa, testified that there is no industrywide definition of what qualifies as a “stunt”—usually, it is the stunt coordi- nator on any given production who makes that determina- tion. Miranda provided his own definition, explaining that he looks at the risk associated with the activity. Thus, if there is a likelihood that performing the activity might re- sult in an injury requiring medical attention, despite at- tempts to mitigate that risk, then Miranda considers that activity to be a stunt. In contrast, if the action creates the illusion of danger but has little actual risk to the performer, Miranda considers that activity a “specialty performance.” Miranda described the performance in Avengers Assem- ble as involving stunts due to the potential for injury—for example, a performer in Avengers Assemble could acci- dentally hit another performer while performing stage combat. In contrast, the specialty performers in Fantas- mic! do not perform stunts, per Miranda’s definition, be- cause (in his view) they perform more “basic” athletic moves (such as climbing, bouncing, and swinging) that re- quire athleticism and strength but are not inherently risky due to the safety mitigations in place. Miranda also testi- fied that the Employer’s hazard reports for Fantasmic! and Avengers Assemble, which he did not write but had re- viewed, reflect a level of risk for both performances that is consistent with his testimony (i.e., they reflect more risk for Avengers Assemble and less risk for Fantasmic!). In contrast to Miranda’s testimony, the high intensity stunt performer who testified at the hearing stated that, in her personal opinion and based on her performance in both shows, the odds of critical injury happening due to a mis- take in Avengers Assemble are lower than the odds of a critical injury happening due to a mistake in Fantasmic! The Petitioner also introduced evidence concerning inju- ries suffered by specialty performers while performing in and rehearsing Fantasmic!, including broken bones (from a failed slide for life), torn abdominal muscles, whiplash, and cuts requiring stiches. One specialty performer testi- fied to at least seven occasions when specialty performers were injured during performances or rehearsals of Fantas- mic!, but indicated that there were more incidents than that 8 According to the Petitioner, in performing the shackle drop, a “per- former wears ankle straps, hooks webbing and bungees to the ankle straps, jumps backwards off a yardarm (pieces of wood on the Columbia that are horizontal to the masts), and hangs upside down by his or her ankles for about forty to forty-five seconds.” 9 To corroborate this testimony, the Petitioner introduced two emails from 2017 (one relating to a callback audition and the other providing the “stunt calendar” to the specialty performers) that refer to the specialty (although the other incidents involved less severe injuries, such as splinters and sprains). That said, Operations Man- ager Jakwerth testified that there have been no injuries during performances of Fantasmic! in the past 2 years, and none of the other witnesses rebutted that specific state- ment (either because the injuries discussed occurred in 2019 or earlier, or because the testimony did not establish when the injuries discussed occurred). The record contains relatively minimal detail with re- spect to the content of other shows currently or previously performed by the performers in the existing unit. In the Spider-Man Encounter show currently performed at DCA, Spider-Man, a unit employee, performs parkour (free run- ning), including flipping, jumping, and rolling over obsta- cles, climbing down walls, and hanging off ledges.10 One specialty performer testified that Spider-Man uses har- nesses and wires to perform the show. The existing unit also includes Tinkerbell’s performer in Disneyland For- ever, Disneyland’s nightly fireworks show, during which Tinkerbell “flies” over Sleeping Beauty Castle on a zip line, about 130 feet in the air. Tinkerbell’s pass lasts ap- proximately one minute, and a technician assists her. Fi- nally, in Castle Fantasy Faire, two comedian singer-danc- ers, who are represented by the Petitioner in the existing unit, perform in an old-time variety and story-time show. Petitioner representative Steve Rosen also described sev- eral past productions at Disneyland Resort in which the performers did “stunts” and were represented by the Peti- tioner, including the Aladdin show discussed above; a pi- rate stunt show on Tom Sawyer Island (which included slides for life and stage combat); Aladdin’s Oasis (which included stage combat on the rooftops); An Amazement (which included slides for life); and Lights, Camera, Chaos (a stunt show with acrobatics and parkour). The petitioned-for specialty performers in Fantasmic! report directly to Senior Entertainment/Entertainment Manager Jessica Lester, who is also the production stage manager (PSM) overseeing the day-to-day performances of Fantasmic! The specialty performers who testified at the hearing indicated that they view the PSMs as their frontline supervisors and that Lester has the authority to issue discipline. Lester reports to Area Manager Chris Smith, who reports to Jakwerth, the operations manager for entertainment. Dana Barnes, the PSM for the Castle Fantasy Faire show, reports to Jakwerth as well, although it is unclear whether she does so directly.11 Jakwerth tes- tified that he currently oversees certain shows at Disney- land, including Fantasmic!, Castle Fantasy Faire, and the performers as being stunt performers. The specialty performers also re- ceived a different “stunt rehearsal calendar,” via email, in 2019. 10 Miranda testified that, in his view, Spider-Man Encounter involves stunts because Spider-Man could fall off a high ledge. 11 Although the Employer introduced an organizational chart into the record, it shows the supervisory structure for only the high intensity stunt performers in Avengers Assemble and the specialty performers in Fan- tasmic! The chart does not include the supervisory hierarchy for any other performers in the existing unit. WALT DISNEY PARKS AND RESORTS, U.S., INC. 5 Lion King show, and that he reports to upper-level manag- ers on the Disneyland side of the supervisory structure. Prior to the COVID-19 pandemic, Jakwerth used to over- see all the shows at Disneyland, including the Dapper Dans, the Tomorrowland Terrace Dance Party, and Dis- neyland Forever (all of which include at least some unit performers), but he no longer oversees those specific shows. The high intensity stunt performers report to their own PSM, who is in a reporting chain with managers who over- see productions at DCA, all the way up to Vice President of Disney California Adventure Park Brent Davies. Brent Davies reports to Senior Vice President of Operations Pat- rick Finnegan, which is where the Disneyland and DCA entertainment branches meet. The specialty performers and high intensity stunt performers are both five or six lev- els of supervision away from Finnegan. The record contains little information about the depart- mental organization of the specialty performers or of the classifications in the existing unit. It appears that the pe- titioned-for specialty performers are in Disneyland’s pa- rade department, along with some of the performers in Sarge and the Green Army Men who perform in the Christmas parade (but that only the Sarge character is part of the existing bargaining unit). Some green army men, who are not in the parades department at Disneyland, work at DCA and are seemingly unrepresented. The high inten- sity stunt performers are in an unidentified department at DCA. All the Employer’s employees, including the specialty performers and the existing unit performers, are subject to the same employee handbook. Furthermore, all the em- ployees go through the same initial training videos, using an Employer site called the Hub. Employees can also view paycheck stubs on the Hub or use the Cast Life phone application. All regular part-time employees are eligible for ACA Consumer’s Choice, a health savings account, wellness rewards, an employee assistance program, com- muter assistance, paid time off for things such as child bonding and jury duty, Disney Aspire (an educational re- imbursement program), a main entrance pass, periodic complementary tickets, discounts on experiences and mer- chandise, and employee-exclusive events. III. ANALYSIS An Armour-Globe self-determination election12 is the proper method by which a union may add unrepresented employees to an existing unit. The Board will direct such an election where the petitioned-for employees share a community of interest with the unit employees and where the petitioned-for employees constitute an identifiable, distinct segment that is an appropriate voting group. See Warner-Lambert Co., 298 NLRB 993, 995 (1990). The 12 See Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamping Co., 3 NLRB 294 (1937). Board considers the following factors in determining whether employees share a community of interest: whether the employees are organized into a separate de- partment; have distinct skills and training; have distinct job functions and perform distinct work, including in- quiry into the amount and type of job overlap between classifications; are functionally integrated with the [e]mployer’s other employees; have frequent contact with other employees; interchange with other employ- ees; have distinct terms and conditions of employment; and are separately supervised. United Operations, Inc., 338 NLRB 123, 123 (2002). Here, there is no dispute that the petitioned-for specialty performers constitute an identifiable, distinct segment that constitutes an appropriate voting group; the only dispute is whether they share a community of interest with the ex- isting unit performers. In finding that the specialty per- formers and existing unit performers do not share a com- munity of interest, the Regional Director relied heavily on certain differences between the petitioned-for specialty performers and the high intensity stunt performers. The Regional Director found that the specialty performers and high intensity stunt performers are not functionally inte- grated and do not interchange with one another; that they perform different functions, using different skillsets, be- cause they perform different shows with distinct choreog- raphy, and because the high intensity stunt performers per- form “stunts” (using specialty equipment) while the spe- cialty performers do not; and that the specialty performers and high intensity stunt performers are in different divi- sions of the Employer’s operations, with the specialty per- formers operating on the Disneyland side of the organiza- tion and the high intensity stunt performers operating on the DCA side. The Regional Director acknowledged that the specialty performers and high intensity stunt perform- ers have similar terms and conditions of employment— including the rate of pay, benefits, working environment, and the auditions process—and that the factor of supervi- sion is neutral because the specialty performers share some third-level supervision with unit performers. How- ever, the Regional Director concluded that these similari- ties are outweighed by the differences between the two groups, and that, accordingly, a self-determination elec- tion is not warranted. Contrary to the Regional Director, we conclude that the petitioned-for specialty performers share a community of interest with the existing unit performers and therefore may appropriately be included in the unit, should they so desire. To begin, there are two significant errors with the Re- gional Director’s overall approach to the community-of- interest analysis. First, when analyzing the differences DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 between the petitioned-for specialty performers and the high intensity stunt performers, the Regional Director mostly relied on cases that apply a much more stringent standard than the one that is applicable here. More specif- ically, the Regional Director primarily cited cases in which a nonpetitioning party contended that additional classifications must be added to the petitioned-for unit in order to make it appropriate.13 In such cases, it is not enough for the nonpetitioning party to show that the addi- tional employees share a community of interest with the petitioned-for employees; rather, “the test is whether the community of interest [the additional employees] share with the [petitioned-for] employees is so strong that it re- quires or mandates their inclusion in the unit.”14 No party has argued that this more stringent standard applies here, nor should it.15 In self-determination cases like this one, rather, the standard is simply whether the petitioned-for employees share a community of interest with the existing unit employees.16 By focusing on inapposite cases, the Regional Director gave too much weight to relatively mi- nor differences between the petitioned-for specialty per- formers and the performers in the existing unit. Second, the Regional Director erred by largely limiting his analysis to the similarities and differences between the petitioned-for specialty performers in Fantasmic! and the high intensity stunt performers in Avengers Assemble, without considering the highly relevant, additional con- text—namely, that the existing unit contains a diverse ar- ray of performers in many different productions. In this regard, the Board has made clear that although the diver- sity of an existing unit is not itself a community-of-interest factor, such diversity “may be relevant to consider gener- ally.”17 13 See, e.g., Casino Aztar, 349 NLRB 603 (2007); J.C. Penney Co., 328 NLRB 766 (1999); Brand Precision Services, 313 NLRB 657 (1994); Phoenician, 308 NLRB 826 (1992); Executive Resources Asso- ciates, 301 NLRB 400 (1991). 14 Engineered Storage Products Co., 334 NLRB 1063, 1063 (2001). See also American Steel Construction, Inc., 372 NLRB No. 23, slip op. at 4, 6 (2022) (explaining that the Board has historically applied a height- ened community-of-interest standard under circumstances where a non- petitioning party contends that additional classifications must be in- cluded in a petitioned-for unit for the unit to be appropriate). 15 As we explained in American Steel, above, “Sec[.] 9(b) of the Act states that the Board’s unit determinations must assure employees’ ‘full- est freedom’ in pursuing their rights under the Act,” and the Supreme Court accordingly has observed that the Act “implies that the initiative in selecting an appropriate unit resides with the employees.” 372 NLRB No. 23, slip op. at 5 (quoting American Hospital Assn. v. NLRB, 499 U.S. 606, 610 (1991)). These principles apply in self-determination election cases, where employees seek to join an existing bargaining unit. 16 See Alaska Communications Systems Holdings, Inc. v. NLRB, 6 F.4th 1291, 1294 (D.C. Cir. 2021) (“The Board’s approval of a self-de- termination election is contingent on, among other things, a determina- tion that the voting group and the preexisting unit share a ‘community of interest.’”); NLRB v. Raytheon Co., 918 F.2d 249, 251 (1st Cir. 1990) (“[A]n Armour-Globe election permits employees sharing a community of interests with an already represented unit of employees to vote whether to join that unit.”). Compare Engineered Storage Products Co., 334 NLRB at 1063 (“[C]ontrary to the [e]mployer’s contentions, the fact Turning to the individual community-of-interest fac- tors, we find that the factors of job functions, skills and training, and terms and conditions of employment weigh in favor of including the specialty performers in the unit, and that those factors outweigh the factors that weigh against finding a community of interest. To start, although the Regional Director misstated the test for functional integration, we agree with his conclu- sion that this factor weighs against finding a community of interest between the petitioned-for specialty performers and the existing unit. Contrary to the Regional Director’s overly broad characterization, functional integration is present when employees must work together and depend on each other in order to accomplish their overall duties.18 Nevertheless, the evidence here does not establish func- tional integration: as the Regional Director correctly ob- served, the specialty performers in Fantasmic! do not rely on performers in the existing unit19 to put on their show; nor do unit performers rely on specialty performers. The factors of department and contact are neutral. With respect to department, although there is some testimony suggesting that both the specialty performers and at least one existing unit employee in Sarge and the Green Army Men are in the Disneyland “parades” department, the rec- ord contains little evidence about the specific depart- mental organization of the petitioned-for specialty per- formers and existing unit performers. But because the ex- isting unit contains performers in multiple departments under both the Disneyland and the DCA supervisory hier- archies, any difference in department between the spe- cialty performers and the unit performers is entitled to less weight than it might receive in other contexts.20 For sim- ilar reasons, we find that the factor of contact is neutral: that the jointly employed employees supplied by Tandem Staffing may share a community of interest with the petitioned-for employees does not mean that they must be included in the unit or that the petitioned-for unit is inappropriate.”) (emphasis added). 17 Public Service Co. of Colorado, 365 NLRB 1017, 1017 fn. 4 (2017); see also MV Transportation, Inc., 373 NLRB No. 8, slip op. at 7 (2023). 18 See, e.g., MV Transportation, Inc., above, slip op. at 5; WideOpen- West Illinois, LLC, 371 NLRB No. 107, slip op. at 7 fn. 16 (2022) (citing cases). 19 The stunt technicians—who work with the specialty performers in Fantasmic! and work with unit performers on other productions—are not represented by the Petitioner. 20 See Public Service Co. of Colorado, 365 NLRB at 1017 fn. 4 (self- determination election appropriate where “most of the planners work in the same departments as unit maintenance employees, and all of the plan- ners are more broadly part of the energy supply area”); see also MV Transportation, above, slip op. at 6 (observing that “the parties agreed to a diverse unit straddling two departments, and the unit placement of the maintenance supervisors should be assessed in the context of that diver- sity”). Because this is a self-determination case where the existing unit already includes employees spread across several departments, it is dis- tinguishable from Bergdorf Goodman, 361 NLRB 50, 52 (2014), and K&N Engineering, Inc., 365 NLRB 1392, 1394 (2017), where the Board found that petitioned-for units lacked a community of interest, in part, because the petitioned-for units did not track any of the employer’s or- ganizational or functional lines. WALT DISNEY PARKS AND RESORTS, U.S., INC. 7 although the petitioned-for specialty performers do not in- teract with employees in the existing unit during the course of their duties, in the context of this case that fact is entitled to little or no weight given the general lack of contact between unit performers in different produc- tions.21 The factors of supervision and interchange provide some support for finding a community of interest between the specialty performers and the existing unit, albeit only slightly. As the Regional Director observed, the specialty performers in Fantasmic! share third-level supervision with unit performers in Castle Fantasy Faire and the Lion King show in the person of Chris Jakwerth.22 And, with respect to interchange, there are five high intensity stunt performers who used to work as specialty performers in Fantasmic!, which constitutes evidence of permanent in- terchange between the two groups. In this regard, we acknowledge that, when considering whether two groups of employees must be represented in the same unit, the Board usually gives less weight to evidence of permanent (as opposed to temporary) interchange.23 However, when considering whether two groups of employees may be rep- resented in the same unit, permanent interchange can sup- port a community-of-interest finding.24 Although there are only five examples of permanent transfers here, those five transfers are nevertheless entitled to greater weight because both productions operate with relatively small casts (approximately 16 specialty performers for Fantas- mic! and 19 high intensity stunt performers for Avengers Assemble).25 And, although there is no evidence of tem- porary interchange between the specialty performers and the existing unit performers in different productions, this 21 See, e.g., Metropolitan Life Insurance Co., 181 NLRB 814, 819 (lack of contact between insurance consultants and other unit employees did not support excluding the consultants from the unit where many unit classifications did not have regular contact with each other). 22 See Huckleberry Youth Programs, 326 NLRB 1272, 1274 (1998) (“While they do not share common immediate supervision, secondary and overall supervision is the same.”); Warner-Lambert, 298 NLRB at 995 (observing that, although the unrepresented employees had separate immediate supervision from the represented employees, the employer had placed the represented and unrepresented employees “in one depart- ment under the same general supervis[ion]”). Further, the lack of shared supervision between the specialty performers and existing unit classifi- cations does not necessarily negate a community of interest between the two groups, especially where the current unit performers do not share supervision among themselves. See Southern California Permanente Medical Group, 209 NLRB 106, 108, 109 (1974). 23 See, e.g., Red Lobster, 300 NLRB 908, 911 (1990). 24 See, e.g., Sperry Rand Corp., 190 NLRB 488, 488–489 & fn. 2 (1971) (self-determination election, but not accretion, appropriate where there had been two instances of permanent interchange). 25 Compare Bashas, Inc., 337 NLRB 710, 711 fn. 7 (2002) (no signif- icant interchange where there were 50 instances of permanent inter- change among 17 different stores). We note, furthermore, that in Bashas the Board was evaluating whether a multifacility unit was appropriate, not whether a self-determination election was appropriate. 26 See MV Transportation, Inc., above, slip op. at 6–7 (“[W]e agree with the [p]etitioner that the lack of evidence of interchange between maintenance supervisors and included classifications is entitled to little lack of temporary interchange is entitled to only minimal weight, because, due to the nature of the existing unit’s work, performers in different productions cannot easily (and do not regularly) fill in for one another.26 Overall, the evidence of permanent interchange counterbalances the lack of temporary interchange and, on these facts, weighs slightly in favor of finding a community of interest between the two groups.27 Regarding job functions and skills and training, we find—contrary to the Regional Director—that these fac- tors weigh in favor of finding a community of interest be- tween the specialty performers and the performers in the existing unit. With respect to job functions, we observe that the existing unit comprises a diverse group of per- formers who (depending on the show) perform functions such as dancing, singing, performing choreography, wear- ing costumes, embodying the mannerisms of Disney char- acters, and engaging in various acrobatic and physical feats, including flights, work with harnesses, and stage combat. The petitioned-for specialty performers perform functions that are either broadly consistent with or exactly the same as the functions performed by unit members in both current productions and prior productions: the spe- cialty performers lip-synch, perform choreography, em- body the mannerisms of Disney characters, engage in ac- robatics and stage swordplay, perform on heights with and without harnesses, and more. Even accepting Miranda’s testimony that the specialty performers engage in “spe- cialty performances,” while the high intensity stunt per- formers perform “stunts” with a higher level of risk, we do not find this distinction analytically significant:28 there is no indication that all unit performers perform “stunts,” weight given that there is no evidence of interchange between any of the included classifications.”). 27 We disavow the Regional Director’s statement that interchange is a “critical” factor in the self-determination context. Executive Resources Associates, cited by the Regional Director, was not a self-determination case, but involved the distinct question of whether the employees at one location shared a community of interest with employees at a second lo- cation, 35 miles away; the Board observed that the lack of interchange was a “strong indicator” that employees at the second location did not share a community of interest with the petitioned-for employees, but the Board did not accord this factor any more inherent weight than the other factors. See 301 NLRB at 403. The Board, in Executive Resources As- sociates, did cite a court case that referred to interchange as a “critical factor,” 301 NLRB at 403 fn. 10 (citing Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1015 (9th Cir. 1981)), but the court’s actual ref- erence in Spring City Knitting was to “employees who work in separate plants,” 647 F.2d at 1015 (emphasis added), and the separate plants at issue in Spring City Knitting were 140 miles apart. The material facts here are simply not comparable to those of either Executive Resources Associates or Spring City Knitting. And, although interchange and su- pervision are “critical” factors in the Board’s accretion analysis—see Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1271 (2005)— the Petitioner is not seeking to accrete the petitioned-for specialty per- formers into the existing unit here. 28 Accordingly, we need not reach the Petitioner’s arguments that the “hazard assessments” relied on by Miranda represent hearsay and/or cir- cumstantial evidence; that the Regional Director engaged in prejudicial error by declining to strike Miranda’s testimony and by revoking the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 and in fact it appears that many types of unit performers (such as dancers, singers, and comedians) do not perform “stunts”. In any event, the relevant question here is whether the specialty performers perform functions that are generally similar to those of the unit performers, not whether the two groups perform completely identical or interchangeable functions.29 And, based on the record be- fore us, the specialty performers clearly do perform func- tions that are similar to those performed by the existing unit performers. We also find that the factor of skills and training weighs in favor of finding a community of interest between the specialty performers and the existing unit performers. There are many similarities between the specialty per- formers and the high intensity stunt performers in Avengers Assemble: the specialty performers and high in- tensity stunt performers have similar backgrounds in gym- nastics and martial arts; performers in both groups have performed stunts in television and film, and they have even performed in the same shows at Knott’s Berry Farm; the job descriptions and auditions process for both spe- cialty performers and high intensity stunt performers con- tain many of the same elements; and both Fantasmic! and Avengers Assemble do, in fact, require many of the same skills, as evidenced by the fact that five specialty perform- ers have gone on to perform in Avengers Assemble.30 Even assuming the high intensity stunt performers possess more specialized skills because they perform “stunts,” this minor difference does not negate the otherwise significant similarity in skills between the two groups, especially in the context of an existing unit that encompasses perform- ers with a wide variety of skills and specializations. Finally, we agree with the Regional Director that the factor of terms and conditions of employment weighs in favor of finding a community of interest. The existing unit contains many performers who, like the specialty perform- ers, are part-time and/or casual employees and who have the same benefits. The specialty performers also have the same hourly wage structure and general wage range as the unit performers in Avengers Assemble, and the two sets of performers have the same general working conditions in terms of clocking in, designating leads, going to hair and make-up, etc. All the Employer’s employees, including those in the existing unit, are subject to the same employee handbook, go through the same initial training videos, and use the “Hub” website. In sum, applying the correct standard, we conclude that there are sufficient similarities between the petitioned-for Petitioner’s subpoena duces tecum seeking the hazard reports; and that the Regional Director erred in deferring to Miranda’s testimony. 29 See, e.g., IKEA Distribution Services, Inc., 370 NLRB No. 109, slip op. at 11 (2021) (“[T]he fact that both classifications perform the same basic function makes this factor weigh slightly in favor of finding that the maintenance technicians and power equipment technician share a community of interest.”). Notably, IKEA Distribution Services was a case in which the employer argued that additional employees had to be specialty performers and the existing unit performers to warrant a self-determination election. The specialty per- formers and the unit performers perform broadly similar functions, using broadly similar skills; there is some evi- dence of permanent interchange between the two groups; the specialty performers share third-level supervision with some unit performers; and the specialty performers share many terms and conditions of employment with the per- formers in the existing unit, including general working conditions. To the extent that there are differences be- tween the specialty performers and the existing unit per- formers—most significantly, in terms of department, tem- porary interchange, and contact—those differences also exist among the performers in the existing unit, and there- fore they weigh (at most) only minimally against finding a community of interest between the two groups.31 Fi- nally, although the factor of functional integration more clearly weighs against finding a community of interest, the overall balance of the factors nevertheless establishes that the specialty performers share a community of interest with the unit performers. Accordingly, we shall remand this case to the Regional Director to conduct a second election. Because the spe- cialty performers have already voted that they wish to be represented by the Petitioner, the second election need only resolve the question of whether the specialty per- formers wish to be included in the existing unit (as op- posed to being separately represented, as they are now). If the specialty performers vote to join the existing unit, the Regional Director shall revoke the existing certification of representative for the stand-alone unit of specialty per- formers and shall issue a new certification adding the spe- cialty performers to the existing unit. If the specialty per- formers do not vote to join the existing unit, the existing certification of representative will not be disturbed. ORDER The Regional Director’s Decision and Direction of Election is reversed. The case is remanded to the Regional Director for Region 21 for further appropriate action con- sistent with this Decision on Review and Order. Dated, Washington, D.C. September 11, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ included in the petitioned-for unit, and it therefore required an even higher showing of shared interests than what is required here. 30 Although two of the specialty performers were not offered positions in Avengers Assemble, the testimony (as described above) does not es- tablish that they were denied roles because they did not possess the rele- vant skills. 31 See MV Transportation, Inc., above, slip op. at 6. WALT DISNEY PARKS AND RESORTS, U.S., INC. 9 David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD