Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Jeff Bosley and Colin Wells
• Publication year: 2017
• Citation: Vol. 31 No. 6

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Finds Arena Scoreboard Workers Are Employees, Not Independent Contractors

Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (Aug. 18, 2017)

In a 2-1 decision, the National Labor Relations Board (Board) held that workers who control audio-visual content on a scoreboard display during professional basketball games are employees under the National Labor Relations Act (Act). The majority reversed a Regional Director's determination that the individuals were independent contractors under the 10-factor test articulated in FedEx Home Delivery, 361 NLRB No. 55 (2014), notwithstanding the D.C. Circuit's refusal to enforce that decision. Members Pearce and McFerran wrote for the majority; Chairman Miscimarra dissented.

The union filed a petition to represent the scoreboard crewmembers in 2016. The Regional Director dismissed the petition, finding that the crewmembers were independent contractors. The Board reversed, holding that "under the FedEx formulation, the evidence fails to establish that crewmembers are independent contractors rather than employees." The majority agreed with the Regional Director that the length of time the crewmembers had worked at games, and the fact that the vast majority of equipment used during the work was supplied by the team was indicative of employee status. The majority, however, disagreed with the Regional Director on three other key factors which favored employee status. First, they found that the crewmember's work was part of the regular work of the employer, because the employer was in the business of selling advertising and marketing, which is done in part through the use of the screen. Second, they found that the employer was in the business of producing audio-video content for the screen. Finally, they found that the crewmembers have no proprietary interest in the work they produce and little control over production. Based on these findings, the majority found the crewmembers were statutory employees.

Chairman Miscimarra wrote, in dissent, that he agreed with the Regional Director that a majority of the FedEx factors favored independent contractor status. In a point-by-point rebuttal of the majority's reasoning, Miscimarra pointed out that the employer lacked control over the crewmembers because the only person directing them during the games is the director, who is himself a crewmember and not an employee of the employer. "With all due respect to my colleagues, I believe that they have missed the forest for the trees. The relevant issue is whether [the team] controls 'the details of the work'." He also reasoned that the method of payment favored independent contractor status, because there was evidence that at least one crewmember negotiated per-game pay separately, and that the employer was willing to negotiate over aspects of pay with the other crewmembers. Finally, he wrote that the crewmembers had control over their schedule, including the ability to turn down working games whenever they wanted, and that there was no minimum or maximum number of games they had to work.

Board Finds Pre-Petition Inquiry Concerning Employee Complaints Unlawful

Mek Arden,...