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David Saxe Productions, LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 4, 2018

David Saxe Productions, LLC and Vegas! The Show, LLC and David Saxe Productions, LLC and Fab Four Live, LLC, Petitioners
v.
National Labor Relations Board, Respondent

          Argued January 18, 2018

          On 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.

          Kellie 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. deCant, Attorney.

          Before: Henderson, Rogers, and Kavanaugh, Circuit Judges.

          OPINION

          Rogers, Circuit Judge

         The 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.

         Applying 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.

         I.

         The 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).

          In May 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 be continued.

         The 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.

         In 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." Id.

         Other 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 ...


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