United States Court of Appeals, District of Columbia Circuit
David Saxe Productions, LLC and Vegas! The Show, LLC and David Saxe Productions, LLC and Fab Four Live, LLC, Petitioners
National Labor Relations Board, Respondent
January 18, 2018
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
Melissa A. Murphy-Petros argued the cause for petitioners.
With her on the briefs was Bruno W. Katz.
J. Isbell, Attorney, National Labor Relations Board, argued
the cause for respondent. On the brief were Richard F.
Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, Julie B. Broido, Supervisory Attorney, and Kyle A.
Before: Henderson, Rogers, and Kavanaugh, Circuit Judges.
Rogers, Circuit Judge
National Labor Relations Board found that three companies
(hereinafter, "the Company") producing shows in Las
Vegas, Nevada violated Section 8(a)(1) of the National Labor
Relations Act. The Company petitions for partial review.
Because the Board seeks a remand of certain of its findings
and the Company does not challenge others, what remains for
the court to decide is whether the Board's finding that a
dancer was discharged for engaging in protected concerted
activity is supported by substantial evidence in the record
considered as a whole. On the current record, the answer to
that question is not straightforward.
Wright Line, 251 NLRB 1083 (1980), the Board found
the decision to discharge the dancer was motivated by her
protected concerted activity but divided on the question
whether the Company had met its burden to show, by a
preponderance of evidence, the same action would have been
taken even in the absence of her protected activity. A
majority of the Board found pretext but functionally rejected
a key credibility finding by the administrative law judge
("ALJ") without acknowledging that it was doing so.
How the Board reconciled its conclusion on pretext and the
credibility finding is unclear. The Board also appears not to
account for evidence detracting from its finding of pretext.
Both circumstances render unclear whether the Board
adequately responded to the analysis by the dissenting
Member. Accordingly, we remand for clarification by the Board
of its treatment of the ALJ's credibility finding and the
Company's evidence that the contract decisions were
non-pretextual. Otherwise, we deny the petition for review
save for the issues on which the Board, without objection by
the company, has requested a remand.
National Labor Relations Act provides in Section 7 that
employees shall have "the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively . . ., and to engage in other concerted
activities." 29 U.S.C. § 157. Section 8(a)(1) of
the Act provides, in turn, that it is an "unfair labor
practice for an employer . . . to interfere with, restrain,
or coerce employees in the exercise of [these] rights."
Id. § 158(a)(1). Where an employer claims to
have discharged an employee for reasons unrelated to the
employee's protected activity, the Board applies the
two-part test of Wright Line to determine whether
the discharge was an unfair labor practice. See NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393, 400-04 (1983). First,
"the General Counsel [of the Board] is required to
'make a prima facie showing sufficient to
support the inference that protected conduct was a
'motivating factor' in the employer's
decision' to take adverse action." Chevron
Mining, Inc. v. NLRB, 684 F.3d 1318, 1327 (D.C. Cir.
2012) (quoting Wright Line, 251 NLRB at 1089). If
that case is made, then, second, "[t]he burden . . .
shifts to the employer to show, by a preponderance of the
evidence, that it would have taken the same action even if
the employees had not engaged in protected activity."
Id. (citing Wright Line, 251 NLRB at 1089).
This second prong of the Wright Line test is at
issue here. David Saxe Prods., LLC, et al., 364 NLRB
No. 100, at *6 (2016) ("Dec."); id. at *10
(Miscimarra, M., dissenting in part).
2010, Carter signed a six-month contract to dance in
Vegas! The Show, which was produced by David Saxe,
owner of David Saxe Productions, LLC. He continued her
contract twice. Also, in spring 2011, Carter began dancing
part-time in the BeatleShow, produced by Fab Four
Live, LLC, co-owned by Saxe and Mitch McCoy; she did not have
an employment contract for this show. In December 2011,
Carter was informed her employment for both shows would not
evidence at the hearing before an ALJ showed that after the
first few months of observing Carter in Vegas! The
Show, the choreographer, Tiger Martina, was dissatisfied
with the lack of versatility in Carter's performance
because the show required dancers to portray different
dancing and acting styles, and he asked the dance captains to
work with her. Those efforts were unsuccessful. When
Carter's initial contract neared completion in December
2010, Martina recommended to Saxe that Carter's contract
not be renewed: Carter's dance performance was too wooden
for the show and her behavior backstage, including
criticizing other dancers' performance, upset other cast
members. Saxe nonetheless renewed Carter's contract
because he is "very loyal and tr[ies] to keep
people" and wanted to give her another chance to improve
her performance. Hr'g Tr. 499 (Oct. 18, 2012). When this
contract was set to expire on April 26, 2011, Saxe extended
it to January 2, 2012.
November 2011, Martina and Saxe held auditions for new
dancers for Vegas! The Show. Martina was
"looking for a replacement for Anne Carter" and had
made this clear to Saxe. Hr'g Tr. 676 (Dec. 12, 2012).
Martina thought Carter's dancing "was no different
from day one . . . [in that] it was still the same stiff
uninterested performance, " even while "the show
had become much more established, we were getting a great
deal of interest, even from other cities, people were
starting to write to us and . . . we were getting
[applications from] some pretty great dancers."
Id. at 677. Martina concluded Saxe "was
starting to see what was happening from [Martina's]
standpoint." Id. Nevertheless, they
"decided to let the contract ride out."
evidence showed that Martina was not alone in his concerns
about Carter's performance and attitude. Dance captain
Ryan Kelsey told Saxe and Martina that Carter would usually
become defensive when she received feedback on her
performance, and he told Martina that Carter's
performance did not match the style required for the show.
Additionally, Kelsey and dance captain Claudia Mitria were
troubled by Carter's negative attitude backstage, which
caused other cast members to complain. Toward the end of
2011, Kelsey shared his concerns with Saxe about Carter's
negativity, which involved not only criticizing other
dancers' performances but also complaining about paid
leave, scheduling, and accommodations for injuries. Kelsey
told Martina and Saxe that Carter's "negativity