Blue Man Vegas, LLC v. National Labor Relations Board ( 2008 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2007 Decided June 10, 2008
No. 06-1328
BLUE MAN VEGAS, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND
ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES,
CANADA, LOCAL 720, AFL-CIO,
INTERVENOR
Consolidated with
06-1341
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Lawrence D. Levien argued the cause for petitioner.
With him on the briefs was Edward P. Lazarus.
2
Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Assistant
General Counsel, and Jill A. Griffin, Supervisory Attorney.
Ruth E. Burdick, Attorney, entered an appearance.
Michael A. Urban argued the cause and filed the brief for
intervenor.
Before: GINSBURG, BROWN, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Blue Man Vegas, LLC
(BMV) petitions for review of the National Labor Relations
Board’s decision that it engaged in unfair labor practices by
refusing to bargain with the International Alliance of
Theatrical Stage Employees, Moving Picture Technicians,
Artists & Allied Crafts of the United States, Its Territories &
Canada, AFL-CIO (the Union), elected to represent certain of
its employees. BMV argues the Board erred in holding the
bargaining unit proposed by the Union was appropriate. We
deny Blue Man’s petition and grant the Board’s cross-
application for enforcement.
I. Background
BMV manages and produces the Las Vegas production
of the Blue Man Group, a theatrical show in which men
wearing blue grease paint on their faces and heads and
dressed entirely in black perform a series of skits and dance
routines involving music, props, and videos. On stage with
the “Blue Men” are seven musicians. The Blue Men and the
3
musicians are assisted by a stage crew comprising seven
departments: audio; carpentry; electrics; properties (props);
video; wardrobe; and musical instrument technicians (MITs),
who maintain the musical instruments, many of which are
unique to Blue Man Group productions. There are also a
handful of so-called “swings,” who BMV explains are
“trained in numerous departments to provide coverage ... as
needed due to vacation or illness.” During a performance,
each of the seven stage crews performs its own “cue tracks,”
which are series of carefully planned actions. For example, a
carpentry crew’s cue tracks might involve placing and
moving scenic backdrops at specified times.
From 2000 through most of 2005, BMV performed at the
Luxor Hotel and Casino. During that time, BMV employed
the MITs directly, but the Luxor employed the members of
the other stage crews, as to whom it entered into a collective
bargaining agreement with the Union. As a result, there were
differences in the terms and conditions of employment of the
MITs and of the other crews. The MITs reported to BMV’s
Production Manager, John McInnis, whereas the other stage
crews reported to the Luxor; the MITs were paid a salary
whereas the others were paid an hourly wage; and the MITs’
pre-performance sign-in sheet was separate from the sign-in
sheet for the others.
In September 2005, BMV left the Luxor and reopened a
month later at the Venetian Hotel and Casino. Incident to the
move, BMV decided to employ the entire stage crew directly.
To handle its many new stage crew employees, BMV erected
a new management structure. A department head would
supervise the employees in each of the six departments that
previously reported to the Luxor, and the “technical
supervisor” would supervise the six new department heads
and report to McInnis.
4
Although the employees in all seven stage crew
departments were now employed directly by BMV, several
differences between the MITs and the other crews were
carried over from the Luxor to the Venetian. First, whereas
the others were separated from McInnis, the production
manager, by two levels of supervision (a department head and
the technical supervisor), the MITs continued to report
directly to McInnis. Second, the two MITs who had been
with BMV at the Luxor were still paid a salary, whereas the
members of the other crews were paid a wage, as they had
been at the Luxor. (The four MITs hired after BMV left the
Luxor were paid a wage, however.) Finally, the MITs’ sign-
in sheet remained separate from the sign-in sheet for the other
crews.
In March 2006, the Union petitioned the Board for a
representation election in a unit comprising all stage crew
employees except the MITs. BMV objected that the MITs
should be included in the bargaining unit. After a hearing, the
Board’s Regional Director (RD) determined, pursuant to
§ 9(b) of the National Labor Relations Act, 29 U.S.C. §
159(b), that the unit proposed by the Union was an
appropriate unit and ordered a representation election. The
RD found significant the differences between the MITs and
the other stage crews that stemmed from the prior unit’s
bargaining history, namely, those relating to supervision,
form of payment, and sign-in sheets. He also found
significant a number of differences that cannot be attributed
to BMV’s time at the Luxor: The MITs have separate
substitutes during days off and vacations, “skills separate
from the other stage crew members,” and different cue tracks;
they “do not ‘swing’ to other stage crew positions”; and they
“work in different areas” and “interact[]” primarily “with
musicians, not stage crew members.” The Board denied
BMV’s petition for review of the RD’s decision.
5
The Union won the ensuing representation election by a
vote of 20-14 and the RD duly certified the Union as the
exclusive bargaining representative. About a month later, the
RD issued a complaint against BMV alleging it had refused to
bargain with the Union, in violation of § 8(a)(1) and (5) of the
NLRA, 29 U.S.C. § 158(a)(1) & (5). BMV argued it was not
required to bargain because the exclusion of the MITs
rendered the unit inappropriate. Finding BMV had raised or
could have raised all issues relating to representation in the
prior unit determination hearing and BMV did not proffer any
previously unavailable evidence, the Board granted summary
judgment for the General Counsel. BMV then petitioned for
review in this court and the Board cross-applied for
enforcement of its decision.
II. Analysis
BMV challenges the Board’s decision that its refusal to
bargain was an unfair labor practice on the ground that the
unit was not appropriate. See Terrace Gardens Plaza v.
NLRB, 91 F.3d 222, 225 (D.C. Cir. 1996) (“Judicial review
[of an order directing a representation election] is available
only if the employer refuses to bargain and is found, in a final
order of the Board, to have violated § 8(a)(5)” of the NLRA).
“This court will uphold an NLRB bargaining unit
determination unless it is arbitrary or not supported by
substantial evidence in the record.” Country Ford Trucks,
Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000).
BMV advances three arguments: The Board applied the
wrong standard to determine whether the proposed unit was
appropriate; the unit determination was not supported by
substantial evidence; and the exclusion of the MITs from the
proposed unit created a “disfavored residual unit.” None is
persuasive.
6
A. The Unit Determination Standard
BMV’s primary argument is that the Board applied a
standard for the unit determination that conflicts with the
NLRA and has been, for that reason, rejected by the Fourth
Circuit. BMV’s position, although superficially plausible, is
based upon a misapprehension of the framework governing
unit determinations.
The Board’s principal concern in evaluating a proposed
bargaining unit is whether the employees share a “community
of interest.” NLRB v. Action Auto., Inc., 469 U.S. 490, 494
(1985); see also Agri Processor Co., Inc. v. NLRB, 514 F.3d
1, 8-9 (D.C. Cir. 2008). “There is no hard and fast definition
or an inclusive or exclusive listing of the factors to consider
[under the community-of-interest standard]. Rather, unit
determinations must be made only after weighing all relevant
factors on a case-by-case basis.” Country Ford Trucks, 229
F.3d at 1190-91 (quotation marks, citations, and ellipsis
omitted). Those factors include whether, in distinction from
other employees, the employees in the proposed unit have
“different methods of compensation, hours of work, benefits,
supervision, training and skills; if their contact with other
employees is infrequent; if their work functions are not
integrated with those of other employees; and if they have
historically been part of a distinct bargaining unit.” Trident
Seafoods, Inc. v. NLRB, 101 F.3d 111, 118 n.11 (D.C. Cir.
1996); see also Agri Processor, 514 F.3d at 9 (collecting
factors); NLRB v. Lundy Packing Co. (Lundy II), 68 F.3d
1577, 1580 (4th Cir. 1995) (listing factors). And, although
the NLRA provides “the extent to which the employees have
organized shall not be controlling,” 29 U.S.C. § 159(c)(5), the
Supreme Court has held that the extent of their organization
may be “consider[ed] ... as one factor” in determining
whether a proposed unit is appropriate. NLRB v. Metro. Life
Ins. Co., 380 U.S. 438, 442 (1965).
7
Decisions of the Board and of the courts in unit
determination cases generally conform to a consistent analytic
framework. If the employees in the proposed unit share a
community of interest, then the unit is prima facie
appropriate. In order successfully to challenge that unit, the
employer must do more than show there is another
appropriate unit because “more than one appropriate
bargaining unit logically can be defined in any particular
factual setting.” Country Ford Trucks, 229 F.3d at 1189(quotation marks omitted). Rather, as the Board emphasizes,
the employer’s burden is to show the prima facie appropriate
unit is “truly inappropriate.” Id. at 1189; Dunbar Armored,
Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999) (“clearly
inappropriate”) (quotation marks omitted); see also
Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 236
(D.C. Cir. 1996) (the Board “need only select an appropriate
unit, not the most appropriate unit”) (quotation marks
omitted).
A unit is truly inappropriate if, for example, there is no
legitimate basis upon which to exclude certain employees
from it. That the excluded employees share a community of
interest with the included employees does not, however, mean
there may be no legitimate basis upon which to exclude them;
that follows apodictically from the proposition that there may
be more than one appropriate bargaining unit. If, however,
the excluded employees share an overwhelming community
of interest with the included employees, then there is no
legitimate basis upon which to exclude them from the
bargaining unit. We held in Trident Seafoods, for example,
the Board’s unit determination was “irrational” and
“unsupported by substantial evidence” because the employer
had adduced unrebutted evidence showing that “the
functional integration of and the overwhelming similarities
between the [excluded] and [included employees] are such
that neither group can be said to have any separate
8
community of interest justifying a separate bargaining unit.”
101 F.3d at 120; see also Jewish Hosp. Ass’n, 223 N.L.R.B.
614, 617 (1976) (unit limited to service employees
inappropriate because of “overwhelming community of
interest” with maintenance employees); Lodgian, Inc., 332
N.L.R.B. 1246, 1255 (2000) (RD required inclusion in unit of
employees who “share an overwhelming community of
interest with the employees whom the [union] seeks to
represent”).
A Venn diagram may
clarify these principles. Each
rectangle represents the interests
of a group of identically situated
employees. The region in
which two or more rectangles
overlap represents the degree to
which those groups have
common interests. In Figure 1,
Rectangles A, B, and C all
overlap because all the groups
have a community of interest
with each other. Consequently, any combination of the
groups – AB, AC, BC, or ABC – is a prima facie appropriate
bargaining unit. Note, however, that Rectangles A and B
overlap almost completely; this indicates they have an
overwhelming community of interest. Any unit that includes
one but excludes the other is “truly inappropriate.”
Therefore, the only units that could be deemed appropriate in
the face of a challenge are AB and ABC.*
*
This framework complements the Board’s accretion policy.
“The term ‘accretion’ ... means the addition of employees into a
unit without an election.” Frontier Tel. of Rochester, 344 N.L.R.B.
1270, 1270 n.3 (2005). Typically, an employer seeks an accretion
9
BMV contends the Board applied the wrong standard in
making its unit determination, effectively “accord[ing]
controlling weight to the Union’s extent of organization,” in
violation of § 9(c)(5) of the NLRA. According to BMV, the
Board erred in basing its decision upon Lundy Packing Co.
(Lundy I), 314 N.L.R.B. 1042, 1043-44 (1994), in which the
Board upheld the unit proposed by the union, thereby
“fail[ing] to heed” the Fourth Circuit’s subsequent refusal to
enforce that decision, which BMV says rested on the ground
that the overwhelming-community-of-interest standard
unlawfully gives controlling weight to the union’s extent of
organization.
BMV’s reading of Lundy II and of the Board’s decision
in this case reflect a misapprehension of the governing
framework just described, as well as a misreading of the
when it has added a new department and wants to include the new
employees in a pre-existing bargaining unit. See id. at 1270-71. “It
is the policy of the Board to find accretions only when the
additional employees have little or no separate group identity ... and
when the additional employees share an overwhelming community
of interest with the preexisting unit to which they are accreted.”
Giant Eagle Mkts. Co., 308 N.L.R.B. 206, 206 (1992) (quotation
marks omitted). The decision to permit an accretion thus reflects “a
legal conclusion that two groups of employees constitute one
bargaining unit.” Northland Hub, Inc. & Gen. Teamsters Local
959, 304 N.L.R.B. 665, 665 (1991). “In determining ... whether the
requisite overwhelming community of interest exists to warrant an
accretion, the Board considers many of the same factors relevant to
unit determinations in initial representation cases, i.e., integration
of operations, centralized control of management and labor
relations, geographic proximity, similarity of terms and conditions
of employment, similarity of skills and functions, physical contact
among employees, collective bargaining history, degree of separate
daily supervision, and degree of employee interchange.” Frontier
Tel., 344 N.L.R.B. at 1271.
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Fourth Circuit’s opinion. In effect, BMV contends that, as
long as the MITs had a community of interest to any degree
with the other stage crews, they could not be excluded from
the bargaining unit. That view is obviously at odds with the
principles discussed above.
Lundy II, on the other hand, is consistent with the
framework set out above. The Fourth Circuit there objected
to the combination of the overwhelming-community-of-
interest standard and the presumption the Board had
employed in favor of the proposed unit: “By presuming the
union-proposed unit proper unless there is ‘an overwhelming
community of interest’ with excluded employees, the Board
effectively accorded controlling weight to the extent of union
organization.” Lundy II, 68 F.3d at 1581. As long as the
Board applies the overwhelming community-of-interest
standard only after the proposed unit has been shown to be
prima facie appropriate, the Board does not run afoul of the
statutory injunction that the extent of the union’s organization
not be given controlling weight.
Here, the Board correctly applied the overwhelming-
community-of-interest standard; it did not presume the
Union’s proposed unit was valid, as it had done in Lundy I.
Rather, the RD first determined “[t]he record ... establishes
that the petitioned-for unit, which excludes MITs, is an
appropriate unit for collective bargaining”; indeed, he noted,
“the parties have never contended” otherwise. The RD then
went on to apply the overwhelming-community-of-interest
standard to determine whether BMV had shown the exclusion
of the MITs rendered the proposed unit truly inappropriate.
As the Board says, the RD cited Lundy I to support the
generally correct proposition that “a unit need not be an all-
inclusive unit in order to be an appropriate unit,” and then
looked to that decision for guidance as to the “factors” to be
considered in deciding whether the two groups of employees
11
have an overwhelming community of interest. The Board’s
use of the overwhelming-community-of-interest standard,
therefore, did not give controlling weight to the extent of the
Union’s organization.
B. Substantial Evidence
BMV contends the Board’s finding that the proposed
bargaining unit was appropriate was not supported by
substantial evidence. As discussed above, the Board based its
finding upon the many differences between the terms and
conditions under which the MITs and the other stage crews
worked. In attempting to refute the Board’s finding, BMV
contends there are few if any relevant differences between the
MITs’ terms and conditions of employment and those of the
other crews. BMV also contends the Board’s finding
conflicts with precedent. In response, the Board argues the
differences between the MITs and the employees included in
the bargaining unit were sufficiently substantial that the unit
could “constitute a distinct and appropriate unit separate and
apart from the MITs,” and that its decision was consistent
with precedent. We agree with the Board.
BMV launches its challenge to the evidence upon which
the Board relied by isolating the differences that “are
holdovers from the Luxor,” namely, the different supervisory
structure, separate sign-in sheets, and salary versus wage
compensation. BMV characterizes these differences as
matters of “bargaining history,” and then ties the bargaining
history to the “extent of organization,” thus: “The Regional
Director reache[d] beyond the parties in this case and relie[d]
on an IATSE contract with a completely different employer
[i.e., the Luxor]. This bargaining history is not relevant to
this analysis except to demonstrate the Union’s extent of
organization.”
12
We need not decide whether BMV correctly equates
bargaining history with extent of organization in the
circumstances of this case because this line of argument still
would fail for two reasons. First, the differences between the
MITs and the other stage crew employees that are “holdovers
from the Luxor” are not merely of historical interest; they are
present facts the Board could reasonably conclude
differentiate the employment interests of the MITs from those
of the other crews. As the Board rather forcefully puts it, “the
... suggestion ... that the Board should have ignored the terms
and conditions of employment that [BMV] intentionally
carried over from the Luxor is absurd.” Second, in light of
the numerous differences that are not “holdovers from the
Luxor,” the Board cannot be said to have given controlling
weight to bargaining history nor, if it is the same thing on the
present facts, to the Union’s extent of organization.
As for those differences that do not stem from the Luxor
era, BMV maintains they do not distinguish the MITs from
the employees in the other stage crews as a group, but rather
distinguish the employees in each crew from the employees in
every other crew. For example, BMV observes that, although
the MITs have separate substitutes, so do the other stage
crews because “[s]ubs do not work for more than one
department.” BMV makes a similar point with respect to the
MITs’ technical skills, cue tracks, use of swings, work space,
and lack of interaction with other stage crew employees
during the show. Thus, BMV argues, the Board acted
arbitrarily by excluding the MITs from the unit on the basis of
certain differences between the MITs and the other stage
crews while at the same time ignoring the same types of
differences among the various crews that were included in the
unit.
We need not decide whether that would be an arbitrary or
otherwise unlawful decision because that is not what the
13
Board did. Rather, as discussed above, the Board recognized
the MITs also differ from the employees in the other crews in
ways that are “holdovers from the Luxor” and are therefore
unique to the MITs, namely, in terms of supervision, form of
payment, and sign-in sheets. The Board did not act arbitrarily
by treating the MITs differently from the other stage crew
employees in light of those differences.
Moreover, the Board’s finding that the proposed unit was
appropriate without the MITs was certainly reasonable and
supported by substantial evidence in view of the analytic
framework set out above. A unit comprising all the non-MIT
stage crews is prima facie appropriate because,
notwithstanding the differences among them, those
employees share a community of interest. It may well be that
a unit comprising all the stage crews, including the MITs,
would also be prima facie appropriate because the MITs also
share a community of interest with the other stage crew
employees, but that does not necessarily render the unit
comprising only the non-MIT stage crews “truly
inappropriate.” Indeed, both the differences that are unique to
the MITs and the differences that can be found among all the
stage crews stand in BMV’s way: The MITs lack an
overwhelming community of interest with the other stage
crews (just as each of the non-MIT crews may lack an
overwhelming community of interest with each of the other
non-MIT crews).
To illustrate, in Figure 2 Rectangle M represents the
interests of the MITs, while Rectangles X and Y represent the
interests of the employees in any two other departments. The
shaded regions represent interests relating to subs, technical
skills, cue tracks, swings, work space, and interaction with
members of other stage crews during the show, that is, factors
with respect to which each department has (we assume)
different interests. The spotted regions represent interests
14
relating to
supervision, sign-in
sheets, and form of
payment, that is,
factors carried over
from the Luxor, which
distinguish the MITs
from the employees in
all the other stage
crew departments.
The Board in effect
found Unit XY
appropriate. As the
diagram shows, the Board was justified in doing so, though it
could also have found Unit XYM appropriate because all
three rectangles overlap, reflecting a community of interest
among them, as represented by the cross-hatched region.
Unlike Rectangles A and B in Figure 1, however, Rectangle
M does not have a nearly complete overlap with any other
rectangle, reflecting the MITs’ lack of an overwhelming
community of interest with any of the other stage crews.
Consequently, the exclusion of Rectangle M from a unit
comprising Rectangles X and Y – that is, the exclusion of the
MITs from the unit comprising the other stage crew
employees – does not render that unit “truly inappropriate,”
notwithstanding the substantial differences among the stage
crew employees, as represented by the shaded and spotted
regions.
Turning from the facts to the law, BMV claims the
Board’s finding that the MITs do not share an overwhelming
community of interest with the other stage crews conflicts
with the Fourth Circuit’s analysis in Lundy II and with the
Board’s analysis in Studio 54, 260 N.L.R.B. 1200 (1982). As
BMV notes, “the Board cannot ignore its own relevant
precedent but must explain why it is not controlling.”
15
Lemoyne-Owen College v. NLRB, 357 F.3d 55, 60 (D.C. Cir.
2004) (quotation marks omitted). We find the Board’s
decision consistent with both Lundy II and Studio 54 because
neither case involved differences as extensive as here.
In Lundy II, the excluded employees differed from the
included employees “in a few respects: (1) the method for
calculating their earnings; (2) supervision; and (3) a lack of
interchangeability with” the included employees. 68 F.3d at
1580. Rejecting the Board’s approval of the proposed unit,
the court remarked, “The exclusion of ... employees based on
such meager differences is, to say the least, problematic.” Id.
at 1581. Here, according to BMV, “the MITs were excluded
from the bargaining unit based on nearly the same ‘meager
differences’ – different second line supervision, partly
different pay structure, and separate sign-in sheets.” The
Board responds that, “[i]n contrast [to Lundy II], here, the
Board did not fragment a traditionally appropriate unit.” We
think the Board’s decision here was consistent with Lundy II
for a more basic reason: Even if those differences in
supervision, pay structure, and sign-in sheet are too “meager”
on their own to justify the exclusion of the MITs from the
bargaining unit, they are only a fraction of the differences
upon which the Board relied. The sum of those differences
was sufficient to justify the Board’s decision that the MITs do
not share an overwhelming community of interest with the
other stage crew employees.
BMV’s comparison of this case to Studio 54 is similarly
flawed. Studio 54 strove “to create an ambiance through
music, lights, props, scenery, and ... the participation of many
employees in an evening’s festivities.” Studio 54, 260
N.L.R.B. at 1200. The union had proposed a bargaining unit
of all employees except “stagehands,” including “disc
jockeys, house board light operators, disco light board
operators, flymen, and preset men.” Id. The employer raised
16
no threshold question whether the proposed unit was prima
facie appropriate; the issue it raised was whether the
exclusion of the stagehands rendered the unit inappropriate.
Despite a difference in supervision between the stagehands
and the other employees, the Board concluded that, in light of
the “interchange of job functions” between them, the
stagehands did “not possess a community of interest so
separate and distinct from [that of the included] employees as
to warrant separate representation.” Id. From this decision
BMV extracts the rule that “minor supervisory differences
should not be determinative.”
Be that as it may, we agree with the Board that Studio 54
does not conflict with the Board’s decision here because of
the panoply of other differences that separate the MITs from
the other stage crew departments. Further, as the Board
notes, the functional integration of Studio 54’s employees
“far exceeded anything in BMV’s show.” For example, non-
stagehands at Studio 54 “occasionally perform[ed] stagehand
work,” “[a]t least two stagehands ... occasionally work[ed] on
non-stage electrical equipment and perform[ed] general
maintenance,” and “[n]on-stagehands and stagehands alike
often mingle[d] and/or dance[d] with patrons[,] ... help[ing] to
create the festive atmosphere [Studio 54] desire[d].” Studio
54, 260 N.L.R.B. at 1200. The only evidence of functional
interchange BMV offers is that, when the company performs
at a location other than the Venetian, “[t]he entire crew will
work together to pack up the needed equipment and gear, load
it, transport it, and set it up at the outside site ... with little
differentiation between the segments of the stage crew.” But
whether BMV performs at the Venetian or offsite, it appears
that each stage crew department remains solely responsible
for the technical tasks ordinarily within its domain; nothing
suggests the MITs perform tasks ordinarily assigned to, say,
the wardrobe crew. Therefore, though certainly relevant to
this case, Studio 54 is not “so inconsistent with the [RD’s]
17
decision so as to mandate reversal here.” Int’l Union of
Operating Eng’rs v. NLRB, 595 F.2d 844, 850 (D.C. Cir.
1979); see Overnite Transp. Co., 325 N.L.R.B. 612, 612-13
(1998) (holding unit need not include mechanics in light of
their separate work area and supervision, different uniforms,
special skills, and lack of significant functional interchange).
In summary, we see no reason to disturb the Board’s
finding that the proposed unit was not rendered “truly
inappropriate” by the exclusion of the MITs. The Board was
justified in considering the ways in which the terms and
conditions under which the MITs work differed from those
under which the other stage crews work, including the
differences that stem from BMV’s time at the Luxor and
therefore are unique to the MITs. The Board was also
justified in considering the differences that do not stem from
the Luxor era but distinguish each crew from every other
crew. The Board reasonably concluded that whatever
interests the MITs shared with the employees in the unit were
not overwhelming in light of those numerous differences.
C. Residual Unit
Finally, BMV contends the Board’s decision is arbitrary
and capricious because it creates an allegedly “disfavored
residual unit.” According to BMV, a residual unit consists of
excluded employees “sharing a community of interest with
the [included] employees.” Thus, BMV argues, because the
MITs “shar[e] an obvious community of interest” with the
other stage crew departments, the Board improperly created a
residual unit of MITs by excluding them from the unit.
BMV’s supposed rule against residual units is
misconceived. It implies that all employees who share a
community of interest must be included in the same unit,
which proposition conflicts with the principle that more than
18
one bargaining unit may be appropriate in any particular
setting. See, e.g., Country Ford Trucks, 229 F.3d at 1189-91(holding that although “broader unit encompassing all parts
and service department employees at both facilities” may
have been appropriate, Board not “required” to include all
such employees in unit in light of differences between
facilities). In any event, the Board’s residual unit policy has
no bearing upon this case because it relates only to whether a
proposed residual unit is appropriate, not to whether a
proposed initial unit is appropriate. See Carl Buddig & Co.,
328 N.L.R.B. 929, 930 (1999).*
III. Conclusion
In sum, we hold the Board applied the correct legal
standard to determine whether the proposed bargaining unit
was appropriate. The Board’s determination that the MITs
may be excluded from the bargaining unit because they do not
share an overwhelming community of interest with the stage
crew employees included in the unit is supported by
substantial evidence and does not conflict with precedent or
the Board’s residual unit policy. We therefore deny BMV’s
petition for review and grant the Board’s cross-application for
enforcement.
So ordered.
*
BMV’s other arguments are sufficiently lacking in merit as
not to warrant consideration in a published opinion. Also, we deny
BMV’s motion that the court “take judicial notice of several artistic
reviews of the Blue Man Group show that aptly describe the unique
and highly unusual experience of attending a Blue Man Group
performance.” See Pa. Transformer Tech., Inc. v. NLRB, 254 F.3d
217, 225 n.4 (D.C. Cir. 2001).