Musical Theatre Association

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 872 (N.L.R.B. 1975)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Musical Theatre Association and Society of Stage
Directors and Choreographers , Inc., Petitioner
Council of Stock Theatres and Managers and Society
of Stage Directors & Choreographers , Inc., Peti-
tioner. Cases 29-RC-2898 and 29-RC-2905
November 26, 1975
DECISION AND DIRECTION OF
ELECTIONS
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, the
Regional Director for Region 29 issued an order
consolidating the above cases and a hearing was held
before Hearing Officer Richard Roth. Following the
hearing,' and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, the case was transferred to the Board for
decision. Briefs were filed by Musical Theatre
Association and the Council of Stock Theatres and
Managers, herein referred to as the Employers; the
Society of Stage Directors and Choreographers, Inc.,
herein referred to as the Petitioner; 2 and the Actors'
Equity Association, herein referred to as the Interve-
nor.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in the case, the Board
makes the following findings:
1. We find that the Employers are engaged in
commerce within the meaning of Section 2(6) of the
Act and it will effectuate the purposes of the Act to
assert jurisdiction herein.
i Following the hearing held in February and March 1975, the Petitioner
and Intervenor undertook to furnish evidence documenting the history of
employment of directors and choreographers to be used as a basis for
determining voting eligibility if an election was directed. Cross-challenges as
to the accuracy and completeness of the records submitted caused the
Regional Director to reopen the hearing on July 21, 1975.
2 The Petitioner, by letter, has since filed a copy of the recent decision in
Jay Julien v. Society of Stage Directors and Choreographers, Inc, 68 Civ 5120
(D.C.N.Y, Oct. 6, 1975), wherein the court after trial found the directors
and choreographers employed under the Petitioner's collective-bargaining
agreement with the League of New York Theatres not to be independent
contractors but employees of the producers, entitled to claim the labor
exemption as a defense to alleged antitrust violations.
3 The parties have stipulated that the Intervenor is a labor organization
but disagree over the status of the Petitioner partly because it was not
organized under New York statute as a labor organization and normally
deals with fees and royalties rather than wages. As the record evidences that
221 NLRB No. 120
2. The Petitioner and Intervenor are labor organi-
zations and claim to represent certain employees of
the Employers.3
3. A question affecting commerce exists concern-
ing the 'representation of certain employees of the
Employers within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.4
4. ` Petitioner seeks to represent directors and
choreographers employed by the Employers' several
stock theaters. The Employers argue that the direc-
tors and choreographers exercise independent judg-
ment and responsibly direct actors and dancers and
thus are supervisors within the meaning of the Act or
are so closely aligned with management that they
should be excluded from the protection of the
statute. The Intervenor, while advancing the same
contentions, also asserts that the disputed individuals
are independent contractors.
A stock theater presents several different plays or
musicals within a period, of a few months. The
producer, decides upon the specific production to be
presented, sets the budget, hires,the theater company,
and determines both the rehearsal and the perfor-
mance schedule. After hiring all the actors and
dancers, or sometimes immediately after deciding
what play he wants to produce, which is often a
revival of a financially successful Broadway "hit,"
the producer hires a director and, if the production is
a musical, a choreographer. These two are primarily
responsible for reviewing and studying the script and
giving artistic instructions to actors and dancers
which may include instructions concerning voice
projection or not to "block" other performers or
other direction related to the quality of the acting or
dancing. As they are employed only from the
beginning of rehearsals until the night of the first
performance, a period of 8 to 10 days, a brief period
compared to the Broadway theaters, their work is
essentially limited to directing the artistic aspects of
the performers' work.
It is contended that the directors and choreogra-
phers have supervisory authority in hiring, firing,
settling grievances, and reprimanding actors and
the Petitioner currently represents employees of employers in handling
grievances and for the purpose of collective bargaining over wages , hours,
and conditions of employment and that employees participate in its
activities , we find the Petitioner is a labor organization within the meaning
of Sec. 2(5) of the Act. See N L.RB. v. Cabot Carbon Company and Cabot
Shops, Inc, 360 U.S 203 (1959).
4 The parties disagree over whether the impact of the Employers'
business on interstate commerce warrants asserting jurisdiction . In view of
the stipulation that the Employers' gross revenues meet the monetary
standards requisite for asserting jurisdiction on either a retail or a nonretail
basis, that the Employers are a group of stock theaters located throughout a
region covering several States, that employees are frequently required to
perform services out of state, and that productions move between States as
instruments of commerce, we conclude that this segment of the theater
industry has a substantial impact on interstate commerce. See The League of
New York Theatres, Inc., 129 NLRB 1429 (1961).
MUSICAL THEATRE ASSOCIATION 873
dancers. In our view, the record does not support this
position. Concerning hire, there are various ways a
director or choreographer may have some role in
choosing the performers. At times the director and a
well known actor hired by the producer for a lead
role will attend an audition with the producer and
advise him of their individual preferences on a talent
assessment basis. At other times the director or
choreographer will, alone, decide on a group of
preferred performers who will audition for the
producer. It is quite clear from this record that
producers have rejected performers recommended by
directors and choreographers, have asked for a
second group to audition, or have hired actors or
dancers suitable to the producer's concept of the
production without consulting, and even against the
wishes of, the director or choreographer; that, the
selection process is totally within the producer's
discretion; 5 and that the producer makes the final
decision, does the hiring, and signs the contract with
the performer.6
Performers are seldom discharged from a stock
theater company. By the nature of the industry, such
action would be taken only under the most unusual
circumstances . Stock theaters operate on a very
sparse budget provided and controlled solely by the
producer and total rehearsal time is but a few days.
Once rehearsals begin, the producer is generally
required to pay a performer full salary upon
discharge. Consequently, not only will a replacement
have to be quickly found and quickly rehearsed, but
will most likely require the expenditure of a second
full salary.? On the rare occasions when discharge
occurs, the record is clear, however, that it is the
producer who, having signed the contract with the
performer, is keenly aware of the budgetary impact
and actually discharges the cast member. Normally
the producer rejects such a course of action even in
the face of stiff opposition from a director or
choreographer. As Intervenor observes in its brief,
the producer will follow a director's recommendation
to discharge an actor based upon the latter's
inability, but this we view as a professional assess-
ment.
While a production is being rehearsed, the settling
of grievances and disciplining of performers are
responsibilities shared by the stage manager and the
Equity deputy.8 The stage manager in stock is hired
by the producer before the director or choreographer
is chosen and in the producer's absence is considered
to be his representative or agent. He not only handles
grievances which may involve housing, transporta-
tion to rehearsals, or the condition of the stage floor
and dressing rooms, but in practice, and by virtue of
both the collective-bargaining agreement and the
union work rules , he unlike anyone else is designated
as responsible for maintaining discipline during
rehearsals. The director and choreographer of course
have authority to reprimand for artistic
"misbehavior."
The deputy also has authority to discipline and
reprimand individual performers. The Intervenor
requires that all of its members fulfill their contractu-
al obligations including on-time arrivals at rehears-
als, answering all entrance cues , taking proper care of
costumes, maintaining "the directed performance,"
and observing all the producer's rules not in conflict
with union work rules. Failure to fulfill contractual
obligations may result in a reprimand from the
deputy and could lead to charges against the
performer being filed with the union by the stage
manager or the deputy, and lead, to a fine or
suspension .9
In view of the prescribed duties of the stage
manager and deputy to - handle grievances and
discipline; and the hire and discharge function of the
producer, we conclude that the Employers' supervi-
sory structure does not include the directors and
choreographers whose function concerns artistic
direction and covers only a brief timespan. In our
view, the artistic direction and instruction of,per-
formers by a director or choreographer is in the
nature of professional direction and is- not to be
equated with the exercise of supervisory authority in
the Employers' interest .'0 Accordingly, we find that
5 Before the final selection is made, the producer may leave the
preliminary screening of performers to a casting director or an advance
man, rather than to the director or choreographer
6 There are times when a producer will hire a performer without
auditioning him, generally Imuted to occasions when the actor's skill is well
reputed or he has performed the role in past productions or where a dancer
is familiar with the,choreographer 's style. There is no evidence that on these
apparently few occasions the 'director or choreographer does the actual
hiring. We read the record as showing that the producer negotiates the
salary, agrees to lure the performer , and arranges the signing of the contract
only after he is satisfied that the particular person meets his own casting
expectations for the production.
7 A performer ' signs a contract for each theater the production is going to
play in. The record indicates that the collective-bargaining agreement
requires that the producer buy out these contracts before discharging an
actor and then pay any replacement `at least the same salary paid the
discharged performer
8 As required by the collective-bargaming agreement, the deputy is
elected by his fellow performers in an election usually conducted by the
stage manager soon after rehearsals begin Neither the director nor the
choreographer votes in the election , of the deputy, whose responsibilities are
much like that of a union steward , including ' the obligation to insure that
performers abide by all the rules of the union.
9 It appears , as Intervenor contends , that only very limited forms of
discipline are available in the stock situation and anything beyond a
reprimand usually means filing charges against the actor with the union.
15 See General Dynamics Corporation, Convair, Aerospace Division, San
Diego Operations, 213 NLRB 851 (1974).
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the directors and choreographers are not supervisors
within the meaning of-Section 2(11).11
The Intervenor has over a 15-year period represent-
ed all the actors, dancers, choreographers, and
directors employed, by the Employers. It opposes
severing these directors and choreographers from the
presently recognized bargaining unit primarily, be-
cause these employees ;do not work exclusively for
these Employers; covering about 42 stock theaters,
but also work for other stock theater owners and
associations not involved in this proceeding. While
choreographers and directors may work for other
employers over a period of years; we do not consider
that circumstance a sound basis for dismissing the
subject petitions involving these specific Employers.
The theater industry exclusive of stock has tradition-
ally been split along the lines sought by the Petitioner
here. The Petitioner exclusively represents directors
and choreographers in 'every major, sector of, the
legitimate theater industry both on and off Broad-
way, while the Intervenor has traditionally represent-
ed actors and dancers in those theaters. Despite this
industry' practice' the Intervenor has by historical
accident represented both the directors and-choreog'-
raphers, as well as the actors and dancers, in stock
theaters.'It appears this resulted from the practice in
the early years of stock when directors also acted and
choreographers were often dancers. Now, however,
the distinguishing function of each in stock is much
more clear, with directors and choreographers often
doing the same work as on Broadway. Unlike other
theater personnel,, their function is to teach and
instruct performers and to coordinate all the artistic
elements , of the production, including acting and
dancing, as well as costumes, lighting, and scenery.
This requires years of, experience and training and at
times graduate study. The fact that the requested
employees, unlike other members of the theater
company; work only until the night of the first
performance, 'are not paid overtime, receive royalties
for as long as the production runs, and receive a
higher wage underscores their separate interests and
identity as a group. The prohibition against either the
director or choreographer serving as company
deputy, or voting in the deputy's election, or even
attending the balloting, - evidences an awareness in
the industry- that the disputed -individuals lack a
community of interest with actors and dancers` such
as to require their continued inclusion in the contract
units.
Negotiations between the .Petitioner. and the
Intervenor for transfer of stock directors ' and
choreographers from the jurisdiction of the Interve-
nor to that of the Petitioner have been conducted `for
years. There is no dispute as 'to that. At one time it
reached the point where an election, later canceled,
was to be conducted giving these employees the
opportunity to"decide whether jurisdiction over them
as directors or choreographers would be transferred
to Petitioner. Neither is it disputed'that the directors
and choreographers consider themselves greatly
outnumbered by the actors that make up most of the
18,000 people the Intervenor represents and have
actively sought and petitioned for the Intervenor's
agreement to the transfer. This was motivated by the
desire not-only to secure more adequate representa-
tion but to terminate the dual membership practice
affecting most of them as members of the, Petitioner
required to pay the Intervenor's initiation fee and
dues when working in stock theaters under contract
with the Intervenor.
After reviewing all these factors, we are convinced
that the units requested are appropriate and that
these employees should have the opportunity to
choose whether they wish to be represented by a
Union which exclusively represents directors and
choreographers. In view of the apparent discordant
effect on collective bargaining and the relationship
between the two theatrical unions involved, the
opportunity of a Board election to adjust- the
bargaining units to reflect employee groups histori-
cally associated in the theater industry seems
desirable.
Accordingly, we, find the following units appropri-
ate for collective bargaining:
Unit A
All employees who direct or choreograph stock
shows for theatres in the Musical Theatre Associ-
ation, excluding actors, dancers, stage managers,
assistant stage managers, supervisors, and guards
as defined by the Act.
Unit B
All employees who direct or choreograph stock
shows for theatres in the Council of Stock
Theatres and Managers, excluding actors, danc-
ers, stage managers, assistant stage managers,
supervisors, and guards as defined in the Act.
5. The Petitioner has suggested ,a specific formula
by which to determine voting eligibility. It contends
that as the stock theaters operate primarily in the
11 It is clear that these employees do not formulate, determine , and equally evident that these employees perform their duties under the
effectuate the Employers ' business policies and should not be excluded from continuous scrutiny of the producer or his representative and are subject to
the protection of the Act as managerial employees NLRB v Bell the producer 's discretion and artistic taste, thus removing any basis for
Aerospace Company, Division of Textron, Inc, 416 U S 267 ( 1974). It is concluding that these individuals are independent contractors.
MUSICAL THEATRE ASSOCIATION 875
summer months and as the employees work for
different employers throughout the industry a
lengthy eligibility period is warranted. The Interve-
nor suggests none. The Employers, after an initial
appearance, did not participate in the hearing and
their briefs are not addressed to the eligibility issue.
To insure a truly representative vote from directors
and ; choreographers who have both a continuing
interest in the conditions of employment, and a
reasonable expectancy of .future employment, Peti-
tioner proposes that all directors and choreographers
who have worked for one production for both
Employers or two productions for either Employer,
over a period of time commencing on April 1, 1969,
should be eligible to vote, an. eligibility period
coinciding with the time covered by the list of stock
directors and choreographers submitted in evidence
by the Intervenor.
After reviewing the record and upon consideration
of the unusual employment pattern "of directors and
choreographers in this- industry, we shall accord
eligibility to all directors and choreographers who
have been employed for two productions over a
period commencing April 1, 1969, whether by one or
both Employers.
[Direction of Elections and Excelsior footnote
omitted from publication.]
[On January 26, 1976, the Board issued an Order
Clarifying Decision and Direction of Elections in
answer to the question raised by the Regional
Director concerning application of the eligibility
formula. The Board stated:
The formula set out in', our Decision and
Direction does not specify the unit ,in which an
employee is to vote; or whether he may, vote in
both units 2 It was, the Board's intent that a
director or choreographer who, since April 1969,
has worked for at least two productions in a
theatre of the Council of Stock Theatres and
Managers be eligible to vote in the Council of
Stock Theatres and Managers election and that a
director or choreographer who, since April 1,
1969, has worked for at least two productions in a
theatre : of the Musical Theatre Association be
eligible to vote in the Musical Theatre Associa-
tion election. Directors and choreographer's,who
have worked at least twice for both Employers
during the designated period would of course be
eligible to vote in both units.
It was not the intent of the Board to accord
eligibility to vote in both elections-to a director or
choreographer who since April 1;, '1969,, has
worked only once for each Employer, although
that was suggested by the Petitioner.
2 The Region has also inquired whether working for an Employer
who was not a member of either association at the time the work
occurred would count . So long as the work upon which eligibility is
based occurred after April ,1, 1969, we do not think it material whether
the employer was then a member of MTA,'or of COST, as the ease may
be.]