Yesterday, a federal court ruled that blue men are not exempt from labor laws.

The Court of Appeals for the D.C. Circuit ordered Blue Man Group to bargain with six of seven stage crew departments that support the group’s shows in Las Vegas.  Blue Man Vegas v. NLRB (No. 06-1328).   The departments voted in favor of the union but Blue Man refused to recognize the election because it said a seventh group had been unfairly excluded.

Background

Blue Man Group is a popular performing troupe of blue-painted men who do comedic skits and pound very loudly on a variety of percussion instruments.  Blue Man Vegas manages the Group’s shows at the Venetian Hotel in Las Vegas.

The blue men and several accompanying musicians are assisted by stage crew in seven departments:  audio, carpentry, electronics, props, video, wardrobe and musical instrument technicians (MITs).  The International Alliance of Theatrical Stage Employees (IATSE) won an election to represent the first six departments.  Blue Man refused to bargain with IATSE, contending that the MITs share a “community of interest” with the other departments and should have been included. 

IATSE filed an unfair labor practice petition with the National Labor Relations Board (NLRB).  NLRB agreed with IATSE and Blue Man appealed.

The Court’s Decision

The court of appeals sided with the union, applying the following “analytic framework”:

• If employees in the proposed unit share a community of interest, the unit is appropriate.
• Factors to consider include supervision, compensation, hours, benefits, training, skills, contact with other employees, integration with other functions and bargaining unit history.
• To challenge a unit, the employer must show more than that there is “another appropriate unit.”  Instead, it must show that the proposed unit is “truly inappropriate” because the excluded employees share an “overwhelming community of interest” with the included employees.

The court found no “overwhelming community of interest” due to differences in supervision, pay, skills and responsibilities plus the fact that the MITs primarily interact with the stage musicians and not the included employees.

What does this mean for employers?

The framework used by the court can be a helpful tool for employers in deciding whether to challenge a particular bargaining unit or election.  The employer must show more than the mere existence of another appropriate unit — it must show that the proposed unit is “truly inappropriate.”  If you can’t demonstrate an “overwhelming community of interest,” the challenge might not be worth it.

This entry was posted on Wednesday, June 11th, 2008 at 6:16 am and is filed under Employment Law News, Unions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.