Seattle Opera v. National Labor Relations Board

III. Conclusion

Because the decision of Commission supported by and is substan-

is reasonable evidence, petition for re-

tial EchoStar’s

view is

Denied. OPERA,

SEATTLE Petitioner/Cross-

Respondent,

v.

NATIONAL LABOR RELATIONS

BOARD, Respondent/Cross-

Petitioner. Artists,

American Guild of Musical

AFL-CIO, Intervenor.

No. 01-1127. Appeals,

United States Court of

District of Columbia Circuit.

Argued Feb. 2002.

Decided June Cys argued

Richard L. the cause for the Lemly petitioner. Thomas A. was on brief. Dheenan, Attorney,

Usha National La Board, argued bor Relations the cause for Rosenfeld, respondent. Arthur F. Jr., Counsel, Higgins, E. General John Counsel, Fergu John H. Deputy General Counsel, son, Aileen A. Associate General Armstrong, Deputy Associate General Gaines, Counsel, Margaret A. Attor: Board, ney, National Labor Relations were on brief. I. the cause argued Auerbach

Melissa J. Hill Michael Holland for the intervenor. represents bargaining The Union unit appearance. entered dancers, choristers, stage managers, as- stage managers stage and assistant sistant HENDERSON, RANDOLPH Before: Opera. directors of the The collective bar- ROGERS, Judges. Circuit gaining agreement Opera between the categories sets forth several Union of by filed Circuit Opinion for the court choristers, regular temporary choristers — Judge HENDERSON. choristers, regular alternate choristers and auxiliary Opera produces choristers. The Dissenting opinion filed Circuit approximately operas per five season and Judge RANDOLPH. employs regular to fill its choristers requirement. Regu- chorus basic seasonal HENDERSON, KAREN LeCRAFT required perform lar choristers are in at Judge: Circuit operas per least half of the offered season (Opera) petitions for The Seattle and, regular- in order to maintain their February of a 2001 decision and review status, undergo periodic chorister must au- of the National Labor Relations order agree- ditions and evaluations. Under the NLRB). (Board Op- See Seattle ment, paid regular each chorister is Artists, Am. Musical era Ass’n & Guild of any single performance” least “for $160 2001). (Feb. 8, In the Case 19-CA-27288 per hour “for each hour of re- $16 order, Opera’s the Board held that Appen- hearsal or fraction thereof.” Joint the American bargain refusal with (JA) They eligible dix are to receive a (Union) Artists Guild of Musical —after parking per perfor- of reimbursement $5 as the collective the Union was certified they if an mance or rehearsal submit ex- an bargaining representative allegedly pense- form reimbursement with “available appropriate Opera’s employ- unit of the receipts.” JA 90. ' practice an unfair ees—constituted labor pool The' has a of 100 to 200 (ULP) 8(a)(5) (1) under section auxiliary audition before a choristers who (Act), 29 National Labor Relations Act pool musical committee. From the of aux- (1). review, 158(a)(5), On U.S.C. iliaries, up to 16 “alter- selects dispute that it refused to Opera does not openings nate choristers” to fill additional Instead,

bargain with the it con- Union. production requires in chorus when a Op- the Board’s conclusion that the tests regulars than or when regulars more auxiliary “employees” are era’s choristers regular If a takes a leave are unavailable. that, employees, Act and as under the absence, replacement designated a his in they properly were included the bar- “temporary regular chorister.” Aternate alternative, Op- unit. In the gaining right first refusal given are a that, argues era even if the auxiliaries are temporary regulars. perform as When employees, they employees are casual choris- perform as “alternate alternates community of interest lacking sufficient ters,” rehearsal they receive for each Opera employees with other to be included they perform when performance; Opera’s con- bargaining choristers,” unit. The they “temporary regular merit; tentions .are without we therefore higher regular-chorister rate paid at the and, deny petition grant regulars, for review and are eli- described above like cross-application gible parking NLRB’s for enforcement to receive a reimbursement if per performance rehearsal or of its order. of $5 choristers,3 auxiliary alternate and expense reimbursement form submit in an to add the alternates and receipts.” JA 90. effort with “available unit. bargaining auxiliaries to the alternates, auxiliaries who those Like Opera agreed that the alternates could be may alternates not been selected as have objected unit to the included but perform when a upon called yet be auxiliaries, protesting that inclusion of the than 36 choris- requires more production employees under the Act. Moreover, fill if cannot ters.1 positions regular chorister temporary May On 2000 the alternates, it often relies on auxilia- with Region agreed Director for empty slots. Once selected ries to fill the auxiliaries are not auxiliary signs a given production, for a not included in Act and therefore could be agreeing to be available for letter of-intent bargaining unit. See Seattle performances; all rehearsals and he also Artists, Am. Musical Ass’n & Guild of understanding by signs a letter of which 2000). 3, (May Au- Case 19-RC-13939 On agrees he to adhere to the attendance 24, gust 2000 the Board reversed the Re- in a requirements spelled out decorum Director, holding that the auxiliaries gional by Opera. The provided handbook employees under the Act. See Seattle auxiliary receives a flat fee of for the Opera Ass’n & Am. Guild Musical Art- production, expenses-or he incurs whether 2000). ists, (Aug. Case 19-RC-13939 not; required any is not to submit he Di- Regional The Board remanded to the receipts the full fee. or forms receive question the unresolved whether the rector Opera originally considered the $214 employees. Sep- are casual On auxiliaries fee an “honorarium” but now calls it a Regional 2000 the Director is- tember “transportation expense” reimbursement. supplemental holding sued a decision that performing given pro-

All in a merely choristers the auxiliaries are not casual em- they regulars, temporary reg- duction—be ployees adding that them to the bar- ulars, alternates or auxiliaries —are listed gaining appropriate. unit would be See together program heading Am. Musi- Seattle Ass’n & Guild of dressing Auxiliaries share “Chorus.” Artists, (Sept. cal Case 19-RC-13939 makeup facilities and receive instructions 2000). He directed an election which fittings and costume with the other choris- the auxiliaries were to decide “whether or Also, during production, ters. auxilia- represented for col- desire be perform regular ries often with choristers purposes by bargaining [the lective Un- group” performances. in “small At least 15. ion].” JA The Board then conducted regular half of the current choristers be- by an election secret mail ballot. The gan with the as auxiliaries.2 won the election and the Board Union it on November 2000 as “the petitioned On March 2000 the Union certified collective-bargaining representa- a among for self-determination election exclusive example, sung previous productions,” JA 1. For if 53 are needed for in two choristers given production, pool supported a of 16 alternates further its conclusion that auxilia- chorus, employees. will not suffice to round out the ries assuming regulars all 36 and all 16 alternates production. are available unrep- 3.A self-determination election allows employees to decide whether or not resented existing bargain- "performing found want to added to an 2. The Board the fact that be auxiliary ing generally Mary’s as an chorister counts unit. See St. Duluth toward satis- fying employment Sys., WL prerequisite as a Clinic Health chorister, i.e., 15, 2000). (N.L.R.B. general applicant Dec. Opera’s In following ap- gaining addressing unit. tive contentions, auxiliary we do not undertake a de All alternate and unit: propriate inquiry. Physicians See Nat’l Opera].” JA novo employed [the Fanning, v. 642 F.2d House Ass’n Staff (D.C.Cir.1980) (en banc) 492, 496-97 certification, the Union re- After (“Whether particular individual is an Opera bargain with quested employee depends upon the facts. The employment. the auxiliaries’ terms over task of on the facts of case decision each filed a Opera refused and the Union assigned primarily ... to [the has been 13, 2000 the charge. On December ULP Board,] agency by Congress created complaint alleg- Director issued a Regional (quotations the Act.” omit- administer bargain refusal ing 160(e) (“The ted)); see also U.S.C. filed an an- the Act. The violated findings respect of the Board with bargain but admitting its refusal to swer supported by fact if questions of substan- validity challenging the of the Union’s also tial evidence on the record as a considered Director certification.' conclusive.”). Rather, whole shall be we summary judgment Op- and the moved for must ask whether the “Board’s determina- by claiming responded to the motion era ‘employees’ tion that [the auxiliaries] un- employees auxiliaries are not ... in under Act has warrant [the] 8, February Act. On 2001 der the record and a reasonable in law.” basis the order under review. The Board issued Am. v. Allied Chem. & Alkali Workers of representation that is- “[a]ll Board found Co., 157, Pittsburgh Plate Glass 404 U.S. by [Opera] were or could sues raised (1971) 383, 30 341 92 S.Ct. L.Ed.2d litigated prior representa- in the have been omitted). that it (quotations We conclude 25; accordingly, it proceeding,” JA tion does. holding that August its 2000 affirmed employees auxiliaries are A. Thus, because the auxiliaries were Act. respect to the first unit, With bargaining

properly included employ are not claim—that auxiliaries had concluded that the the Board inquiry 8(a)(5) (1) purview ees within the Act’s Act of the violated section —“our that from the fundamental canon It starts by refusing bargain to with the Union. statutory interpretation begins with and desist ordered the to cease ULPs; Butler v. recog- language of the statute itself.” engaging in similar from (D.C.Cir.1999) West, 634, 639 upon 164 F.3d bargain with the re- nize and Union omitted). The relevant statuto (quotation embody signed agreement in a quest; reached; ry text states: any understanding post and to of a remedial notice. copies any “employee” shall include The term to the shall not be limited employee, and

II. particular employer, un- of a employees oth- subchapter explicitly states grant this The asks us less erwise, any individual Di and shall reinstate the petition and include claims, consequence because, has ceased as a it whose work initial decision rector’s with, of, any in current within or connection employees auxiliaries are unfair alternative, any dispute or In the . labor because coverage. the Act’s not obtained practice, and who has the auxiliaries are labor Opera argues substantially any regular other lacking a suffi merely casual not in- employment, but shall equivalent with other community cient of interest ag- an employed as any in a clude individual employees to be included bar- 762 (1995), laborer, provides or in the S.Ct. 133 L.Ed.2d domestic

ricultural family person necessary interpretive or at his assistance: any service of employed by his home, any individual or ordinary dictionary definition of any individual hav- spouse, or parent or “person who “employee” any includes independent con- of an ing the status for another in return for financial works tractor, employed as a any or individual compensation.” American Her- or other any employed individual supervisor, or (3d ed.1992). Dictionary See itage subject Railway to the employer an (6th Dictionary 525 also Black’s Law Act, from as amended time Labor (an ed.1990) employee “person is a time, person who is not by any other or any under con- the service another defined. employer as herein hire, express implied, tract oral or or 152(3) added). written, employer has the (emphasis where the 29 U.S.C. power right to control and direct the statutory definition is While employee in details of how the material unhelpful, we are not without somewhat performed”). the work is to be NLRB, Sure-Tan, Inc. v. guidance; in phrasing of the Act ... reiterate[s] 104 S.Ct. 81 L.Ed.2d U.S. ordinary dictionary of the defi- breadth (1984), Supreme States Court the United says “[t]he nition term ‘em- [when] made clear any employee.” ployee’ shall include 2(3)’s §of definition is breadth [t]he (emphasis origi- Id. at 116 S.Ct. 450 squarely applies Act striking: nal). assigned Given that the Court has “any only limitations employee.” weight plain meaning such to the exemptions agricultural specific “employee,” term it is clear that —where laborers, workers, individuals domestic specifically he is not excluded from cover- spouses parents, or employed by their 152(3)’s age by one of section enumerated employed independent as individuals exemptions person asserting statuto- supervisors, contractors or and individu- —the employee if ry status does have such status employed by person als a who is not an (1) statutory employer he works for a in employer the [Act]. under compensation, return for financial or other (emphasis Id. at 104 S.Ct. 2803 add- Found., id.; see see also WBAI Pacifica ed). Opera Because the does not claim (N.L.R.B. Aug.26, 1999 WL at *3 any fall within of sec- that the auxiliaries 1999) “presence of form of (requiring some 152(3)’sspecific exemptions, tion resolution relationship employ- economic the between Opera’s petition provi- of turns on the the er and the individual held to have statuto- ‘employ- “The term opening sion’s words: ” (2) status”); ry employee statutory the any employee.... ee’ shall include See employer power right to control has the or Co., id.; see also Sunland Constr. person in and direct the the material de- (1992) (“Under N.L.R.B. the performed, tails of how such work is to be statutory principle well settled of construc- Elec., Country see Town & 516 U.S. at expressio unius est exclusio alteri- tion— 116 S.Ct. 450. only these enumerated classifications us— concedes that auxilia are excluded from the definition of ‘em- ” (footnote omitted)). ry choristers receive a flat sum of ployee.’ Although $214 particular production.4 It hopelessly circu- their work a might appear the words however, lar, in argues, in NLRB v. that the fee “is not the Court’s decision Town Electric, Inc., ‘compensation’ in return Country & 516 U.S. 116 tended to be WBAI, single distinguishes nonemployee 4. This fact the auxiliaries from the individuals in a incur). Second, auxiliaries are entitled the ... rather but performed services or labor expenses if no at incur an to the costs fee pocket of for out a reimbursement opera the house or if walk to (e.g., all in connection incur” likely to [auxiliary] is off). Third, drops them while if a friend perfor- attending rehearsals with “transportation the fee the labels facts at 17. Several Br. of Pet’r mances. reimbursement,6 First, the auxiliaries expense” otherwise. suggest in the record expense reim- required to submit and are not $214, more no receive auxiliaries receipts to receive the forms or any of bursement the amount less, regardless no Indeed, did not full sum.7 and other miscella- parking transportation, at the Board how it arrived explain to the note the they incur. We expenses neous expense” set-off— “transportation auxilia- regard between in this contrast parking evidence of present much less non- the one hand ries on traveled —bolsters or distances youth costs “supernumeraries”5 employee remuneration other; true the latter are choristers on conclusion for the auxilia- compensation as qualifies at all no they receive fee in that volunteers Nothing JA 10. they ries’ work.8 See expenses the amount (regardless trav- inconsequential parking, [because] is Board claims the dissent which the decision merely to be an dissenting op. intended el neglected, reimbursement erroneously see has parking costs for just 2; approximation of travel and WBAI were "unpaid staff” in at WBAI, [ajuxiliary, and Seattle typical WL unpaid. See that — compen the administrative it is not worth ("Unpaid do not receive staff decided at *4-5 time, process Al cost to collect station.... effort and at the for their work sation Br. of at least one forms.” receipts evidence that and reimbursement though there is reim the Board ne- travel It contends that received unpaid staff member Pet’r at bursement, "cost-efficiency reasoning” wide han- to be a appear glected it does Thus, purported em it did. Id. spread practice.”). dling payment to auxiliaries relationship 13; lacked in WBAI Even if id. at 17-18. ployer-employee see also exists, cost-efficiency element that were relevant requisite reasons Opera's economic fee, however, 152(3) in the That the noth- widespread, inquiry, here. and is to the section estimation, grand to "the presented amounts suggests that it ing dissent's record mini per and is below $2.78 hour” "extraordi- sum of to the those reasons 773, no dissenting op. at wage, doing it from prevented mum nary circumstances” 152(3) analysis. York, The bearing on the section v. Corp. New Inc. Hyatt Mgmt. so. of a 140, (D.C.Cir.1987) can marshal only support NLRB, the dissent 2 143 817 F.2d n. Walling Ter v. Portland contrary proposition, (where raise issue before failed to petitioner 639, 148, Co., 91 67 S.Ct. 330 Board, raising minal U.S. it in a from was "barred all; Walling (1947), support at is no review, L.Ed. 809 'extraordinary cir- absent petition for Stan the Fair Labor interpretation of involves clearly pres- not [were] which cumstances’ Rela National Labor the 160(e))). dards Act. Under 29 U.S.C. (quoting ent” Act, (as the opposed to the amount tions mathematical to the seeks fill 8.The dissent of) compensation is irrelevant. mere fact numerous Opera offers gap by the left analogous "extras” to Supernumeraries are 5. given a auxilia- how much suppositions about performers with they simply in a per trip. See film— or ry might per hour make parts. nonspeaking instance, the For dissenting op. at 773-74. being com- from that —far calculates dissent evidentiary to credence 'We decline lend 6. performance their work pensated for —auxil- that, label, until given the fact especially this full reim- receive iary will not even the fee Opera referred to flat recently, the expenses unless for their travel bursement an "honorarium.” miles day job within 9.2 "they or have live the For all Id. 774. "[wjhether Opera House.” at of the argues [a]ux- Opera that 7. knew, Opera reimbursement, given that the or Board request the iliary must however— the calculations proffered neither expenditures for travel proof of provide justifies disturbing the record our conclusion.9 should, any why they evidence dissent offers nor about dis- A: I don’t know if it’s expenses. tances traveled—all of the auxiliaries lived reimbursement for Q: opera right No. If the house. Whether NLRB is ... and within 9.2 miles not, "employee” means the same in the Tax the dissent’s calculations are accurate or Code as it does in the National obligation weigh Labor no evi- Board has Act, they put Relations then have presented dence not to it. See Allied Chem. & people in violation of Workers, the federal income 404 U.S. at Alkali S.Ct. 383 taxes, they penal- tax and owe back with (court uphold "employee” will deter- ties. mination if it "has in the record and a warrant mean, go A: I I would have to back if— added)). (emphasis in law” reasonable basis accept in court—if this Court does not supposes The dissent also that if the auxilia position, go our we'd have to back and Act, employees are in fact under the ries certainly look at that. But it is a de Opera are in of the federal violation money. minimis amount of payroll” tax laws "are not on the because (Oral 13-15); Arg. at 767-69 Tr. at see Infra any and “no sort are withheld taxes from (Oral 24-25, Arg. also at 770-72 atTr. infra Dissenting op. $214.” their at 776. Howev 36). dissenting The conclusion that our col- er, does take issue with the league sponte raised the tax issue sua at oral omitting Board's to consider the tax treat argument surprising thereby the Board and — payments. $214 ment of the While " 'waiver,' precluding "suggesting] it from states in its taxes are brief no withheld inevitable, dissenting op. at. 776 n.5'—seems payments, explains legal from the it never especially given that the record contains no significance of fact. Br. See of Pet’r at (1) regarding Op- evidence whatsoever Accordingly, by failing to raise the reporting era’s tax pay- treatment of the argument appeal, adequately tax on ments; (2) reporting or the auxiliaries' Legal has waived it. See Wash. Clinic failing report properly any payments (D.C.Cir. Barry, Homeless v. 107 F.3d taxing federal and state authorities. 1997) (litigant argue does not issue ad argue decision not to the tax fashion”); dressing "cursory Ry. it in Labor unsurprising any issue is event. As counsel Executives’ Ass’n v. United States R.R. Ret. correctly for the argu stated at oral Bd., (D.C.Cir. 1984) 749 F.2d 859 n. 6 ment, the fact that the auxiliaries were not (declining to decide issue "on the basis of given W-2 the[y] forms "doesn't mean that briefing only which consisted of three sen Act,” employees aren't at 771 infra tences ... and no discussion of the... relevant (Oral 25); Arg. Tr. at the tax treatment of the law"). case assertion that we dissent’s payments analytical significance is of little "unfairly]” have declined to consider the tax where reasonably "the Board [can] conclude issue, n.5, dissenting op. surprising at 776 status,” employee that ... various indicia of least; say party purport for a control, that had compensation right like and a edly argument "made the tax in its "outweigh brief not suggesting those factors other wise,” (by merely stating including once but three times” tax treatment. NLRB v. Am Serv., id., Inc., withheld”), Delivery ber fact that "no taxes are 651 F.2d 61-62 (1st Cir.1981) J.) (Breyer, (package argument caught delivery decidedly oral was drivers found to be off-guard by under section dissenting colleague's inqui our 152(3) though company made no deduc ries: unemployment, tions compen workmen's sation, security Q: social insurance or income they give [D]id [the W-2 auxiliaries] taxes); NLRB, Huizinga Cartage see J. Co. v. forms? (7th Cir.1991) (same, 941 F.2d 620 ob did, A: I don't believe but I can't serving employer that "if an could confer you tell for sure that that is in the record. [i.e., independent non-employee] contractor Q: Okay. That’s not the record. through payroll status the absence of deduc question A: I’m not sure that was asked employees falling tions there would be few [before the Board].... Act”); protection of the NLRB v. Q: "employee” [I]f means the same un- Floors, Inc., 560, 561, Keystone 306 F.2d 563 der the Internal Revenue Code that it (3d Cir.1962) (salesmen employ found to be NLRB, every does under the then one of 152(3) though compa ees under section even these 150 [auxiliaries] has violated the ny security made no deductions for social federal tax laws. tax). income that, A: I'm not sure I follow Your Hon- or. ... 9. While the dissent makes much of the Re- Q: They report— calculations, gional didn't dissenting Director's see part the whole sing must their lest that ríes Moreover, shows record production suffer.11 right to control possesses material de facts, auxiliary choristers as well as light foregoing In leeway” the Board “degree legal of Auxiliaries are performance. tails of their governing interprets its possesses “when understanding of to letters required sign statute, likely Congress particularly where to the at to adhere agreeing intent and labor rela- understanding of intended an requirements decorum tendance and Town guide application,” to the Act’s tions by the provided in a spelled out handbook Elec., Country at S.Ct. & U.S. auxilia requires the Opera.10 say the Board exceeded its cannot we time, arrive, at on sign in ries to when auxiliary that the authority concluding performance. and every and rehearsal each the mean- employees are within choristers handbook, auxiliaries to the Pursuant 152(3). reach of 29 U.S.C. ing and expected artistic feedback receive B. direction musical and dramatic to follow undergo auxiliaries stage. on while al reject as well We make-up fittings and the same costume auxiliary choris claim—that the ternative choris and alternate regular lacking as a suffi instruction ters casual with other choristers, community of interest short, auxilia- cient In like all ters. n.3, auxiliary in the mate to control conclusion & Director's op. at 773-75 Dissenting performance. let of their only to rial details "sufficient that the amount is acknowledges, roughly op. with out-of- at 776. The itself dissent an individual break however, on mere con expenses,” JA was based can should pocket travel, parking "employ and meal speculation about the law definition sider the common “average” auxiliary 152(3) chorister analy expenses that the performing a section ee” when testimony ignored 775-76; that might incur and in fact Mut. Ins. See id. at Nationwide sis. expenses 322-23, at all. Darden, no auxiliaries incurred some 112 S.Ct. U.S. Co. v. ("[W]hen (1992) Con 117 L.Ed.2d 581 requires understanding 'employee' an without gress 10. The letter of has used term it, following by signature: auxiliary defining [clearly] affirm the have concluded we Congress the convention intended to describe "Auxiliary read the Seattle I have relationship as understood al master-servant my I un- provided for benefit. Handbook” doctrine.”). agency by common-law including requirements, derstand these finding that arbitrarily in act Board did not decorum, addressing attendance and those here; relationship a master-servant there was being agree comply as a condition opera is an that an dissent's observation I Auxiliary If an Chorister. considered as enterprise” in which especially "collective that I can any questions, I understand have time," sing the same "[ejveiyone Coordinator Chorus contact the Personnel 776, only bolsters dissenting op. at clarification. or the Music Coordinator Indeed, the Board had conclusion. comply with I understand failure over Opera's of control ignored the amount my may dismissal guidelines lead these auxiliaries, law neglect the common production, Auxiliary from this an Chorister ' decision rendered its could have definition my consideration as removal from & Coun arbitrary capricious. See Town any opera. Auxiliary future Chorister from ("In Elec., S.Ct. 450 try 516 U.S. added). (emphasis JA 13 cases, about may question there be some the com departure from whether the agitato molto 11. The dissent —delivered —be- interpreta agency renders its ... mon law of silly” Board or for "outright for the lieves unreasonable.”). power tion Opera has the us to consider (D.C.Cir.2000) (“Because Opera employees to be included company did argument] [its raise in the unfair bargaining proper- it is not labor unit —because practice proceeding, the Board was enti- ly before us. abandoned.”). tled to treat Act [it] contrary Its assertions to the notwith- provides objection that “[n]o that has not 15-17, standing, Reply Br. of Pet’r at see urged been before the Board ... shall be Opera preserve failed to for review its court, [reviewing] considered unless employee argument. casual Upon con- neglect urge objec- the failure or such cluding supplemental in his decision that tion shall be excused because of extraordi- employees, not casual auxiliaries are 160(e). nary § circumstances.” 29 U.S.C. explicitly Director advised the allege does not that extraordi- right, pursuant of its to 29 C.F.R. nary According- circumstances exist here. 102.67, § request ly, to file a of his review we do not employee consider casual argument. findings. never filed such a 102.67(f), therefore, request. Section III. precluded would have the Board from con- reasons, For the foregoing Opera’s sidering employee casual claim petition for review is denied and the if proceeding ULP cross-application NLRB’s for enforcement claim, attempted had to raise the which it February of its granted. 2001 order is 102.67(f); did not. 29 C.F.R. see Alois NLRB, Box Co. v. 216 F.3d So ordered. a “Volun- they receive party”; dissenting: “volunteers Judge,

RANDOLPH, Circuit Pass”; and—critical Rehearsal teer Dress to volunteers case important is an This paid are thinking they Board’s — organi- country and throughout perfor- last after the flat amount estimate, more By one they assist. zations and travel for reimbursement mance as freely in 1998 Americans million than 109 expenses. parking help in energy and time gave their health, education, humanities, in arts and definition a rose A rose is environment, so development, youth Act, an Labor Relations in the National Independent SectoR, The New forth. See 29 U.S.C. “employee.” is “employee” (2001). in Brief Almanao circle, Board 152(3). NONPROFIT To break payments receive nominal Some volunteers “employees.” are not holds that volunteers Na- Now the expenses. defray their Found., 328 N.L.R.B. See WBAI Pacifica Board, at insti- Relations Labor tional 1999). (Aug. 1999 WL No. regular em- representing a union gation have should led The WBAI decision volunteers has decided ployees, auxiliary choris- to declare Board to bar- are entitled “employees” also To “work employees. ters were wages, hours over collectively gain WBAI, “is hire,” ruled em- of “law” The rule working conditions. or ser- for labor compensation receive if this: is Board’s decision bedded Court, Supreme at *4. Id. vices.” to reim- a flat amount paid volunteers Committee a House approval quoting with is payment expenses, them burse ‘employ- “An same: much the report, said “em- become volunteers and the “wages” dictionaries, all standard ee,’ according to deci- view, my In ployees.” have courts as the to the law according ma- and ridiculous. arbitrary sion universal it, according to the stated the Board’s compounds only opinion jority ... everyone understanding of almost dissent. I therefore errors. for another works for who means someone organi- non-profit is a Seattle v. Workers & Alkali Chem. hire.” Allied old, specializing forty years zation, nearly 157, Co., 404 U.S. Plate Pittsburgh Glass On Wagner. Richard operas of (1971). L.Ed.2d 341 30 92 S.Ct. more Opera needs the occasions infrequent auxiliary choristers are the By no stretch its 86 than production for a choristers services, they or are their paid for being and their alternates. choristers regular or other financial “in return working for , aon Opera draws the gap, the To fill (emphasis at 762 Maj. op. compensation.” “auxiliary of volunteers —the contingent is the added). fact telling The most known. volunteers,” they are as chorister they receive. amount voice, individuals, in who trained are These ex- is auxiliary chorister average, an On If Opera. the to their services volunteer (each rehearsals 7 music attend pected to audition, added to they are the they pass hours), rehearsals stage 7 lasting for auxiliary choristers. list of some the hours), perfor- (each for 4 lasting them, upon Opera calls if When In length). in (about 3 hours mances 1/2 conse- without to decline free they are rather wages words, were if the $214 other for a agree volunteer they If to quence. aux- expenses for than reimbursement up must show they course production, making grand were iliary choristers perfor- for evening rehearsals for Di- Regional per hour. sum of $2.78 unison. and in mances, tune sing in calculations, making the same rector, after chorister efforts, volunteer each For their trivi- is amount received right had Opera’s end-of-the-season is invited —“the al”; it represents “only an amount suffi- retroactively trainees at per the rate of $4 day cient (this to let an for their roughly training period individual break trans- lates into per roughly in day $32 even with current out-of-pocket expenses” dollars). The Court held despite probably enough accomplish payment, the trainees were not “employ- that; reality’ “the ‘economic nobody is that subject ees” to the wage minimum law can functioning be auxiliary primari- as an because being were not compensated ly for gain.” immediate financial performed. work In language that rejected The Board Di- applies equally the auxiliary analysis rector’s for this reason: “to find and other throughout volunteers the coun- individuals not to be because try, the Court refused to sweep within the compensated at less than the who, law “each person without promise or minimum wage, or because compen- their expectation compensation, solely but sation is less living than a wage, contra- personal his purpose pleasure or worked venes the stated principles of the Act.” activities carried on persons other ei- Ass’n, Seattle Opera 331 N.L.R.B. No. ther for pleasure or profit.” 330 at U.S. 2000). 2000 WL (Aug. *3 67 S.Ct. 639.1 Of course this very assumes issue— than simply Rather assuming that represents compensation $214 represented wages, the Board should rather than expenses. reimbursement for have tested its through thesis elementary And exactly “principles what Act” mathematics. parking lots near the does the Board (so have mind? is of House are coin operated There no receipts given). course no For a principle that rehearsal volunteers have .a performance, parking would cost right about bargain collectively $4. wages. over Given the average number of rehearsals paid Volunteers are not wages. But to (22), and performances this amounts to $88 take the logic, might one well in parking fees. Under the collective bar- say that because volunteers receive no gaining agreement reimburses compensation labor, for their that is all the union some members for transportation more reason principles “the of the Act” expenses at the rate of 31 per cents mile. give right them a bargain collectively For auxiliary choristers from driving their for some compensation. any rate, At to the Opera home House and back for all Board’s “reasoning” hesitate to call —I 22 rehearsals performances, and this flatly contradicts the leading case of that — comes the handsome total per of $2.86 Walling v. Co., Portland Terminal 330 ($214 trip 44). less $88 divided At 31 U.S. 67 S.Ct. (1947), 91 L.Ed. 809 per mile, cents these volunteers will re- on which Regional the Director In relied. ceive full reimbursement for their travel Walling, a gave railroad training pro- expenses only if they live or day job a have spective paid brakemen and successful within 9.2 miles of Opera the House.2 majority 1. The dismisses Supreme the Court's auxiliary cisión that the choristers were not decision in Portland ground Terminal on the employees, part in on the basis that he relied that it under arose the Fair Labor Standards on the Fair Labor Standards See Act. Seattle Maj. op. Act. at 763 n.4. But the Ass’n, Board's 331 N.L.R.B. No. 2000 WL opinion WBAI relied on the treatment of vol- 1224905, at *3 n. 4. unteers under the Fair Labor Standards Act no found evidence 2. majority The individuals states that for "all the Board there would be considered "employees.” is, ... knew all of the auxiliaries”—that all ' WBAI, 328 N.L.R.B. No. WL 1999 200 of them —“lived within 9.2 miles of the case, *5 n. 3. Yet in this opera the Maj. op. house.” at 763 n.8. The disregarded Board the absurdity de- Director’s supposition of this probably why is

775 defray ex- payments that unless ing did not opera the of phantom the Maybe report expense an preceded by are penses in modern but expenses commuting have wages. must be payments receipts, everyone else does.3 society most witnesses testified The own irra- Board’s with the content Not of ex- approximation an represented $214 of up one tionalities, majority makes payments reimbursement Flat penses. auxiliary that an supposes It own. (Consider per fairly are common. to all rehearsals walk might chorister receive many employees payment diem no incur travel and thus performances, travel, payment a on official they are when is the Maj. op. at What expenses. employee if wages not considered to the walks someone That because point? See, expenses. equivalent not incur did auxiliary does? Hall, every chorister Inc., Group, F.3d Excel Berry v. e.g., or two a chorister because it that Or is Cir.2002).) (5th save payments Flat driv- Hall without get to might to those bookkeeping are fair on the singing be auxiliary choristers must ing, all Con- up their time. freely giving are who impressed majority also is The wages? it amend- when as much recognized gress auxiliary of that none the fact with As the Act.4 Standards Fair Labor ed the expense to submit required crossing stated, “a volunteer report Senate at 763-64. Maj. op. receipts. or reports ‘employee’ be- an not become does guard propounded It too. Board was The a uniform allow- he or receives she cause ... “auxiliaries sequitur: following non S.Rep. No. expenses.” travel ance and/or receipts or to submit required not (1985), Cong. & 99-159, U.S.Code at 14 receive remu- reports, expense short at 662. Admin.News at the end in amount neration to the paid matter is the $214 they incur or not whether production aof reim- with is auxiliary choristers consistent auxiliaries’ find the we Therefore costs. entirely in- it is expenses; bursement for their compensation to be remuneration wages. with consistent Ass’n, 381 N.L.R.B. Seattle work.” many analysis is flawed 1224905, at Where 148, 2000 WL No. *3- just a few. I mention respects. will other from? There come “Therefore” does law definition common applying In law, none the at least labor rule of is no these does Board identified, employee, hold- anyone else Act, Standards the Fair Labor 4. Under majority indulge in it. Board did "employ- seq., defines § 201 et which charged U.S.C. Opera was forget that the seems National as the manner the same much ee” in practices. The committing labor unfair with Act, public aat volunteer a Relations general counsel Labor the Board's was on burden merely employee 160(c), not become agency does U.S.C. charges, see 29 prove those reason- "expenses, person paid the because carried without not be which could burden benefits, U.S.C. 29 fee.” or a nominal were auxiliary choristers able that the proving the volun- 203(e)(4). is whether evidentiary This true Any § Act. "employees” receives expenses or receipts for Opera. the submits favor of teer in militated gap therefore of those amount “approximate" the instead 553.106(b). can One dis- § 29 C.F.R. costs. did not says the Board majority that 3. The volunteers tinguish between I have set computations the to consider have only "by Act Labor Standards Fair the under no "the Board text because in forth the payments of amount examining the total presented weigh not obligation to evidence benefits, fees) context the in (expenses, made computa- But the n.8. Maj. op. at 762 it.” particular of the realities the economic of al- reasoning evidence from represent tions 553.106(f). This is C.F.R. 29 situation.” record, reasoning that it is ready in the do. refused the Board what precisely decision. missing from the Board's 776 Elec.,

cases, Country see v. Town NLRB & The Board majority the sig- find it Inc., 85, 94, 516 nificant in determining U.S. 116 S.Ct. 133 whether the auxil- iary choristers are employees (1995), rather than L.Ed.2d 371 it should have taken volunteers Opera that the power “has the into account the tax treatment of auxil right to control and person direct the in iary choristers’ See Nationwide $214. the material of details how such work is to Darden, Mut. Ins. Co. v. 318, 324, 503 U.S. performed.” be Maj. op. at 762. This is (1992), S.Ct. 117 L.Ed.2d 581 outright silly. Are suppose we to that quoting Community Creative Non-Vi firefighters volunteer or volunteer rescue Reid, olence v. 730, 751-52, 490 U.S. workers “employees” become because (1989). S.Ct. 104 L.Ed.2d 811 fire chief or the head of squad the rescue Opera’s officials testified without contra directs them? case, As to this the Board diction that auxiliary choristers are not seems to have forgotten that are deal- we on the 'payroll and that no any taxes of ing with a Auxiliary choir. join sort are withheld from their If $214. singers perform other musical works. I payments these in wages, were fact as the can imagine more enterprise. no collective Board supposed, the auxil —and Everyone sing has to at the same time. iary violating choristers —were the federal (a Unlike a supernumerary non-singing ex- tax probably laws and state laws as well. tra) performance could miss a with- —who I am willing any assume such thing out much missing singers affect effect — and I do not think the Board any had the balance of the choir between the vari- doing business so either.5 parts. ous voice Rehearsal cannot be done 5. majority thinks "the tax treatment of quite wrong. and it is made the payments is of analytical signifi- little argument tax in its brief not once but three cance,” citing appeals opinions. some court of times. The suggested Board never even Maj. op. knew, at 765 n.8. Supreme But the "waiver” Court because it better than the Nationwide, 324-25, majority, argument 503 U.S. at that S.Ct. had indeed been preserved presented. decided after the appeals court of On deci- the basis of mentions, ample testimony majority sions the subject about in the held that in "de- agency proceedings, termining Opera argued whether party a hired to us: employ- is an "The Seattle general ee does not under consider the agency, law of common travel wages reimbursement to be we no consider ... the tax treatment hired taxes are (Italics withheld.” Brief party." added.) for Petitioner at See Community also emphasized It point again, arguing Reid, Creative Non-Violence v. 490 U.S. that "such 730, 753, reimbursement is not considered 109 S.Ct. 104 L.Ed.2d 811 wages” withheld,” because "no taxes are (1989) id. (relying purported on the employer’s 22; see light id. at 27. also It inwas failure to deduct taxes indicating as a factor arguments these subject naturally the individual was employee). not an up argument. came in oral The Court in pointed Nationwide also out that Furthermore, hardly the Board could have past, when the NLRB twice deviated surprised been that the matter tax with- from the common law of employee, definition holding only would be discussed. Not did the "Congress amended the statute so construed Opera argue point, but also the to demonstrate that the usual common-law Director, determining treat- principles keys were the meaning.” Id. at volunteers,” ed the "auxiliaries as relied on 324-25, 112 S.Ct. 1344. See also Willmar the fact that withholding "[n]o is taken” out Serv., NLRB, Elec. Inc. v. 968 F.2d $214. majority While the believes the (D.C.Cir.1992). record "no subject contains evidence” on the dissent, response In majority this withholding, n.8, of tax maj. op. at 765 claims any argument "waived” see, evidence is there for all to as is the about tax withholding. Maj. op. at 763. n.8. directly factual finding Director’s on counsel, This is Opera, unfair to the point, and to its finding a the Board never upset. depend must now precedent this awaits need members Choir independently. rehearing petition for words, inevitable upon the only the notes not know to- en banc. their voices blend also they must but pro- allWe single sound. into a

gether differently from a little e’s a’s and

nounce it is therefore this context In

one another. treat control

nothing irrational but a vol- distinguishing a feature as

direction “employee.” from an

unteer its auxilia- never treated Opera has

The volunteers, but anything ry choristers DELIVERY EXPRESS CORPORATE themselves viewed have never Petitioner, SYSTEMS, revealing. very title Their otherwise. v. auxiliary, ladies with the familiar Most to be group used volunteer type of as one RELATIONS LABOR NATIONAL choris- such gives each called. BOARD, Respondent. Volunteer “Auxiliary Chorister ter Brotherhood season, International of the the end At Handbook.” Teamsters, Union Local the volunteers invitation to an addition 886, Intervenor. No. receives auxiliary chorister party, each thanking director Opera’s from letter No. 01-1058. stating “contributions” their them Appeals, Court States United achievements none Circuit. un- of Columbia “without District possible have been would Opera Volun- of Seattle support dying 1, 2002. Argued Feb. teers.” 11, 2002. June Decided all a this was the Board According to auxiliary Opera paid charade. wage, minimum less than the

choristers Standards Fair Labor in violation of - their taxes from not withhold

Act. It did tax the federal in violation

“paychecks,” transactions, phony engaged It

laws. auxiliary reimburse

pretending to actually while expenses, It work. their them for

compensating when volunteers auxiliaries

called treat- And really employees.

were the Seattle employees, them as

ing Act. Relations Labor the National

violated Board, thinks the deluded

Everyone was itself. the Board except that is

everyone Some- opposite. is the truth plain case. in this terribly wrong gone

thing to correct decisions review

Courts did not bad we Too aberrations.

such fate today. What function

perform

Case Details

Case Name: Seattle Opera v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 11, 2002

Citation: 292 F.3d 757

Docket Number: 01-1127

Court Abbreviation: D.C. Cir.