Blue Man Vegas, LLC v. National Labor Relations Board
Argued October 18, 2007; Decided June 10, 2008 (2008)
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Rule of Law:
A proposed bargaining unit is appropriate if the employees within it share a community of interest. An employer's challenge to such a unit will fail unless it can show that excluded employees share an overwhelming community of interest with included employees, thereby making the proposed unit 'truly inappropriate'.
Facts:
- Blue Man Vegas, LLC (BMV) produces the 'Blue Man Group' show in Las Vegas, which utilizes a stage crew divided into seven departments: audio, carpentry, electrics, properties, video, wardrobe, and Musical Instrument Technicians (MITs).
- From 2000 to 2005, while at the Luxor Hotel, BMV directly employed the MITs, while the Luxor Hotel employed the other six stage crew departments.
- This dual-employer structure resulted in different terms of employment: MITs reported to BMV's Production Manager, were paid a salary, and used a separate sign-in sheet, whereas other crews reported to Luxor and were paid hourly.
- In October 2005, BMV moved to the Venetian Hotel and began directly employing the entire stage crew.
- Despite the change, BMV carried over several distinctions for the MITs, including their direct supervision under the Production Manager (bypassing the new management structure for other crews), their salaried status for veteran employees, and their separate sign-in sheet.
- Additional differences existed: MITs had separate substitutes, possessed distinct skills, performed different 'cue tracks,' did not 'swing' into other crew roles, and interacted primarily with musicians rather than other stage crew members.
Procedural Posture:
- The Union petitioned the National Labor Relations Board (NLRB) for a representation election in a unit composed of BMV's stage crew employees, excluding the Musical Instrument Technicians (MITs).
- BMV objected to the proposed unit, arguing the MITs should be included.
- After a hearing, the NLRB's Regional Director determined the proposed unit was appropriate and ordered an election.
- The Board denied BMV's petition for review of the Regional Director's decision.
- The Union won the election and was certified as the exclusive bargaining representative.
- BMV refused to bargain with the Union.
- The NLRB's General Counsel issued a complaint alleging BMV committed an unfair labor practice, and the Board granted summary judgment for the General Counsel.
- BMV (petitioner) petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the Board's final order, and the Board (respondent) cross-applied for enforcement.
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Issue:
Does the National Labor Relations Board err in certifying a bargaining unit that excludes certain employees if those excluded employees do not share an overwhelming community of interest with the included employees?
Opinions:
Majority - Ginsburg
No. The National Labor Relations Board's certification of the bargaining unit was proper because the unit is appropriate if its members share a 'community of interest,' and an employer can only defeat it by showing the excluded employees share an 'overwhelming community of interest' with the included employees. Here, BMV failed to meet that high burden. The Board correctly applied a two-step analysis: first, it determined the proposed unit of stage crew members shared a community of interest, making it prima facie appropriate. Second, it evaluated whether the exclusion of the MITs rendered the unit 'truly inappropriate.' Substantial evidence, including differences in supervision, compensation methods, sign-in procedures, skills, and daily interactions, supported the Board's conclusion that the MITs did not share an 'overwhelming' community of interest with the other stage crew members. Therefore, their exclusion was permissible, and the Board was not required to select the 'most' appropriate unit, only 'an' appropriate one.
Analysis:
This decision solidifies the NLRB's two-step analytical framework for determining the appropriateness of a bargaining unit. It reinforces the principle that a union's proposed unit is presumptively valid if a 'community of interest' exists among its members. The case sets a high bar for employers seeking to challenge a proposed unit, requiring them to demonstrate that excluded employees share an 'overwhelming community of interest' with included ones, effectively making the exclusion irrational. This gives the Board and petitioning unions significant latitude in defining bargaining units, confirming that multiple appropriate units can exist in a single workplace.
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