292 F.3d 757 (D.C. Cir. 2002), 01-1127, Seattle Opera v. N.L.R.B.

Docket Nº:01-1127
Citation:292 F.3d 757
Party Name:Seattle Opera v. N.L.R.B.
Case Date:June 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 757

292 F.3d 757 (D.C. Cir. 2002)

SEATTLE OPERA, Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

American Guild of Musical Artists, AFL-CIO, Intervenor.

No. 01-1127.

United States Court of Appeals, District of Columbia Circuit

June 11, 2002

Argued Feb. 21, 2002.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Richard L. Cys argued the cause for the petitioner. Thomas A. Lemly was on brief.

Usha Dheenan, Attorney, National Labor Relations Board, argued the cause for the respondent. Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Attorney, National Labor Relations Board, were on brief.

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Melissa J. Auerbach argued the cause for the intervenor. Michael Hill Holland entered an appearance.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge RANDOLPH.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The Seattle Opera (Opera) petitions for review of a February 8, 2001 decision and order of the National Labor Relations Board (Board or NLRB). See Seattle Opera Ass'n & Am. Guild of Musical Artists, Case 19-CA-27288 (Feb. 8, 2001). In the order, the Board held that the Opera's refusal to bargain with the American Guild of Musical Artists (Union)—after the Union was certified as the collective bargaining representative of an allegedly appropriate unit of the Opera's employees—constituted an unfair labor practice (ULP) under section 8(a)(5) and (1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(5), (1). On review, the Opera does not dispute that it refused to bargain with the Union. Instead, it contests the Board's conclusion that the Opera's auxiliary choristers are "employees" under the Act and that, as employees, they were properly included in the bargaining unit. In the alternative, the Opera argues that, even if the auxiliaries are employees, they are casual employees lacking a sufficient community of interest with other Opera employees to be included in the bargaining unit. The Opera's contentions are without merit; we therefore deny its petition for review and grant the NLRB's cross-application for enforcement of its order.

I.

The Union represents a bargaining unit of choristers, dancers, stage managers, assistant stage managers and assistant stage directors of the Opera. The collective bargaining agreement between the Opera and the Union sets forth several categories of choristers—regular choristers, temporary regular choristers, alternate choristers and auxiliary choristers. The Opera produces approximately five operas per season and employs 36 regular choristers to fill its basic seasonal chorus requirement. Regular choristers are required to perform in at least half of the operas offered per season and, in order to maintain their regular-chorister status, must undergo periodic auditions and evaluations. Under the agreement, each regular chorister is paid at least $160 "for any single performance" and $16 per hour "for each hour of rehearsal or fraction thereof." Joint Appendix (JA) 83. They are eligible to receive a parking reimbursement of $5 per performance or rehearsal if they submit an expense reimbursement form with "available receipts." JA 90.

The Opera has a pool of 100 to 200 auxiliary choristers who audition before a musical committee. From the pool of auxiliaries, the Opera selects up to 16 "alternate choristers" to fill additional openings in the chorus when a production requires more than 36 regulars or when regulars are unavailable. If a regular takes a leave of absence, his replacement is designated a "temporary regular chorister." Alternate choristers are given a right of first refusal to perform as temporary regulars. When alternates perform as "alternate choristers," they receive $20 for each rehearsal and performance; when they perform as "temporary regular choristers," they are paid at the higher regular-chorister rate described above and, like regulars, are eligible to receive a parking reimbursement of $5 per rehearsal or performance if they

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submit an expense reimbursement form with "available receipts." JA 90.

Like alternates, those auxiliaries who have not been selected as alternates may yet be called upon to perform when a production requires more than 36 choristers.1 Moreover, if the Opera cannot fill the temporary regular chorister positions with alternates, it often relies on auxiliaries to fill the empty slots. Once selected for a given production, an auxiliary signs a letter of intent agreeing to be available for all rehearsals and performances; he also signs a letter of understanding by which he agrees to adhere to the attendance and decorum requirements spelled out in a handbook provided by the Opera. The auxiliary receives a flat fee of $214 for the production, whether he incurs expenses or not; he is not required to submit any receipts or forms to receive the full fee. The Opera originally considered the $214 fee an "honorarium" but now calls it a "transportation expense" reimbursement.

All choristers performing in a given production—be they regulars, temporary regulars, alternates or auxiliaries—are listed together in the program under the heading of "Chorus." Auxiliaries share dressing facilities and receive makeup instructions and costume fittings with the other choristers. Also, during the production, auxiliaries often perform with regular choristers in "small group" performances. At least half of the current regular choristers began with the Opera as auxiliaries.2

On March 30, 2000 the Union petitioned for a self-determination election among the Opera's alternate and auxiliary choristers,3] in an effort to add the alternates and auxiliaries to the bargaining unit. The Opera agreed that the alternates could be included in the unit but objected to the inclusion of the auxiliaries, protesting that they are not employees under the Act.

On May 3, 2000 the Board's Regional Director for Region 19 agreed that the auxiliaries are not employees under the Act and therefore could not be included in the bargaining unit. See Seattle Opera Ass'n & Am. Guild of Musical Artists, Case 19-RC-13939 (May 3, 2000). On August 24, 2000 the Board reversed the Regional Director, holding that the auxiliaries are employees under the Act. See Seattle Opera Ass'n & Am. Guild of Musical Artists, Case 19-RC-13939 (Aug. 24, 2000). The Board remanded to the Regional Director the unresolved question whether the auxiliaries are casual employees. On September 20, 2000 the Regional Director issued a supplemental decision holding that the auxiliaries are not merely casual employees and that adding them to the bargaining unit would be appropriate. See Seattle Opera Ass'n & Am. Guild of Musical Artists, Case 19-RC-13939 (Sept. 20, 2000). He directed an election in which the auxiliaries were to decide "whether or not they desire to be represented for collective bargaining purposes by [the Union]." JA 15. The Board then conducted an election by secret mail ballot. The Union won the election and the Board certified it on November 14, 2000 as "the exclusive collective-bargaining representative

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of the employees in the following appropriate unit: All alternate and auxiliary choristers employed by [the Opera]." JA 25.

After its certification, the Union requested that the Opera bargain with it over the auxiliaries' terms of employment. The Opera refused and the Union filed a ULP charge. On December 13, 2000 the Regional Director issued a complaint alleging that the Opera's refusal to bargain violated the Act. The Opera filed an answer admitting its refusal to bargain but also challenging the validity of the Union's certification. The Regional Director moved for summary judgment and the Opera responded to the motion by claiming that the auxiliaries are not employees under the Act. On February 8, 2001 the Board issued the order under review. The Board found that "[a]U representation issues raised by the [Opera] were or could have been litigated in the prior representation proceeding," JA 25; accordingly, it affirmed its August 24, 2000 holding that the auxiliaries are employees under the Act. Thus, because the auxiliaries were properly included in the bargaining unit, the Board concluded that the Opera had violated section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. It ordered the Opera to cease and desist from engaging in similar ULPs; to recognize and bargain with the Union upon request; to embody in a signed agreement any understanding reached; and to post copies of a remedial notice.

II.

The Opera asks us to grant its petition and reinstate the Regional Director's initial decision because, it claims, the auxiliaries are not employees within the Act's coverage. In the alternative, the Opera argues that the auxiliaries are merely casual employees lacking a sufficient community of interest with other Opera employees to be included in a bargaining unit. In addressing the Opera's contentions, we do not undertake a de novo inquiry. See Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492, 496-97 (D.C. Cir. 1980) (en banc) ("Whether a particular individual is an employee depends upon the facts. The task of decision on the facts of each case . . . has been assigned primarily to [the Board,] the agency created by Congress to administer the Act." (quotations omitted)); see also 29 U.S.C. § 160(e) ("The findings of the Board with respect to questions of fact if...

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