## Facts

- Blue Man Vegas, LLC (BMV) managed and produced a Las Vegas show using a stage crew divided into departments, including audio, carpentry, electrics, props, video, wardrobe, and musical instrument technicians (MITs).
- At the prior venue (Luxor Hotel and Casino), most stage-crew departments were employed by the venue under a union contract, while BMV directly employed only the MITs.
- MITs maintained specialized and often unique instruments used in the production and primarily interacted with musicians.
- MITs historically had distinct employment terms and administration, including different supervision, separate sign-in procedures, and (for the incumbent MITs) salaried pay.
- After moving to a new venue (Venetian Hotel and Casino), BMV decided to employ the entire stage crew directly, but MITs continued to have differences in pay structure and reporting lines compared to other crew.
- The union petitioned for an NLRB representation election in a unit consisting of stage-crew employees excluding MITs; BMV contended the MITs had to be included.
- The NLRB approved the petitioned-for unit, the union won the election, and BMV refused to bargain based on its challenge to the unit’s appropriateness.

## Issues

1. Whether the NLRB properly applied the “overwhelming community of interest” standard in approving a stage-crew bargaining unit that excluded MITs.
2. Whether substantial evidence supported the NLRB’s findings that MITs were sufficiently distinct in supervision, skills, functions, and employment terms to permit their exclusion.
3. Whether excluding MITs improperly created a disfavored “residual unit” outside collective bargaining representation.

## Decision

- The court denied BMV’s petition for review and granted the NLRB’s cross-application for enforcement.
- The court held the NLRB applied the correct legal standard and acted within its discretion in approving the petitioned-for unit excluding MITs.
- The court held substantial evidence supported the Board’s conclusion that MITs did not share an overwhelming community of interest with the other stage-crew employees.
- The court rejected the claim that the decision impermissibly created a disfavored residual unit.

## Legal Principles

- The NLRB has broad discretion to determine an appropriate bargaining unit, and a reviewing court asks whether the Board applied the correct standard and whether its findings are supported by substantial evidence.
- When a union’s proposed unit is prima facie appropriate, the employer bears the burden to show that excluded employees share an “overwhelming community of interest” with included employees such that exclusion would be improper.
- Differences in supervision, skills and job functions, terms and conditions of employment (including pay structure), and employee interchange are relevant factors in assessing community of interest and whether the employer has carried its burden.
- A unit is not invalid merely because some employees are left outside it; a “residual” group is not impermissible where the approved unit is coherent and the exclusions rest on supported distinctions rather than arbitrary line-drawing.

## Conclusion

The D.C. Circuit enforced the NLRB’s order requiring BMV to bargain with the union, holding that the Board reasonably approved a stage-crew bargaining unit excluding musical instrument technicians because the employer failed to show an overwhelming community of interest and the decision was supported by substantial evidence.


Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008)