Minnesota Timberwolves Basketball, LP,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Minnesota Timberwolves Basketball, LP and International Alliance of Theatrical Stage Employees, Petitioner. Case 18–RC–169231

August 18, 2017

DECISION ON REVIEW AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE

AND MCFERRAN

The issue in this case is whether individuals in the unit (crewmembers) who produce electronic content that is displayed on a four-sided video display apparatus (center-hung board or board) during professional basketball games are employees covered under Section 2(3) of the National Labor Relations Act or independent contractors.¹

The Employer, Minnesota Timberwolves Basketball, LP, owns and operates two professional basketball teams—the Minnesota Timberwolves of the NBA and the Minnesota Lynx of the WNBA—both of which play home games at Target Arena in Minneapolis, Minnesota. On game days, the center-hung board, which is suspended above the basketball court, displays live basketball game footage, replay footage, real-time game statistics, advertisements, other graphics and fonts, and some preproduced video material. Crewmembers produce the content that is displayed on the center-hung board. Petitioner International Alliance of Theatrical Stage Employees filed a petition to represent the crewmembers on February 8, 2016, contending that they are employees within the meaning of the Act. The Employer contends that crewmembers are independent contractors excluded from the Act’s coverage.

On March 3, 2016, the Regional Director for Region 18 issued a Decision and Order in which he found that the petitioned-for crewmembers are independent contrac

¹ The parties stipulated to the following appropriate unit if an election were directed:

All regular part-time freelance technicians, including Directors, Technical Directors, Audio/Tape Operators, Engineers in Charge, Engineers, Camera Operators (including stationary, mobile and remotely operated), Font Operators, Thunder Operators, Replay Operators, Utilities and others in similar technical positions performing preproduction, production and post-production work in connection with closed circuit telecasts displayed on the in-house video system within the Employer’s home arena, including such telecasts of Minnesota Timberwolves games, Minnesota Lynx games, pre-game shows and post-game shows; excluding all other employees, office clerical employees and guards, professional employees and supervisors as defined in the Act.

tors and not statutory employees. Accordingly, he dismissed the petition. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Petitioner filed a timely request for review. The Employer filed an opposition.

On July 19, 2016, the Board granted the Petitioner’s request for review.² The Petitioner and the Employer each filed a brief on review.

The Board has carefully considered the entire record in this proceeding, including the briefs on review. For the reasons set forth below, we find, contrary to the Regional Director, that the crewmembers are statutory employees. Accordingly, we reinstate the petition and remand this case to the Regional Director for further appropriate action.

1. FACTS

   The Employer’s basketball teams play a combined total of approximately 60 home games per season at Target Arena.³ For each game, the Employer fills the following 16 crewmember positions: three utilities; three camera operators; three replay operators; one engineer in charge; one engineer; one font operator; one Thunder⁴ operator; one audio/tape operator; one technical director; and one director. For purposes of filling these positions, the Employer maintains a roster, currently listing 51 individuals, which includes notations signifying which positions each individual is qualified to fill. Many crewmembers are qualified to work in several of the video-production classifications within the crew, and the roster reflects this.⁵

   If an individual tells the Employer that he no longer wants to be considered for positions within the crew, the Employer will remove his name from the roster. In one instance, the Employer received complaints from members of the crew alleging that a certain individual was

   ² The three-member panel of the Board that granted review consisted of then-Chairman Pearce, Member McFerran, and then-Member Hirozawa.

   ³ Target Arena is owned by the City of Minneapolis. Under the Employer’s lease agreement with the city, however, the Employer operates the arena and all of the technical equipment and appliances it contains—including the center-hung board and multiple other televisions showing the game, advertisements, and other visual content— along with other equipment and instrumentalities it owns or leases itself.

   ⁴ Thunder is a brand of computer. The Employer loads preproduced content onto the Thunder computer such as graphics (e.g., stills and animations) and the crewmember working in the Thunder operator classification may in turn cause that content to be displayed on the center-hung board.

   ⁵ For example, the roster shows that crewmember JoAnn Babic is qualified to work as director and technical director; crewmember Jackie Gambaiani is qualified to work as technical director, font operator, Thunder operator, or utility; and crewmember Jason Wiltse is listed as qualified to work as camera operator, although Wiltse testified that he is also qualified to work as a utility or audio operator.

   “not professional enough” and “can’t work here anymore.” The Employer responded by removing that individual’s name from the roster.

   Before the start of the basketball season, the Employer’s Senior Broadcast Production Manager (SBPM), Erik Nelson, sends a schedule of games to crewmembers and asks them to specify their availability for the season’s upcoming games. The Employer does not require that crewmembers be available for a minimum number of games, nor does it limit the number of games crewmembers may work per season. Occasionally, the number of crewmembers available to work a particular game exceeds the Employer’s need. In those instances, the SBPM determines who will work based on his order of preference. The SBPM also determines which classification an available crewmember is assigned, given that many are qualified to work in multiple classifications.

   Once a crewmember commits to work a particular game, he does not need advance approval from the Employer if he later decides not to work that game. But he is required to find his own replacement. Beginning with the 2015–2016 Timberwolves season, the Employer implemented a new requirement that if a crewmember is unable to work a game for which he was initially available, he or she must find a suitable replacement from the roster and notify the SBPM of the change. Provided that they obtain replacements, there is no evidence that negative repercussions—such as removal from the roster or relegation to a lower-paid classification—befall crewmembers who change their availability after committing to work.

   Regarding work hours, the NBA and WNBA set the tipoff times for games, but the Employer sets the call times for crewmembers to report to Target Arena and begin preparing for the game. Call times vary by classification. For example, pursuant to the Employer’s instructions, cameras 2 and 3 report 1.25 hours prior to the tipoff time, utilities report 1.5 hours prior to the tipoff, and camera 4 reports 3 hours prior to the tipoff.

   The Employer provides virtually all of the equipment crewmembers use to produce content on the center-hung board, such as cameras, cables, headsets, instant replay machines, sound equipment, and equipment used to display fonts and graphics on the board. The sole exception is that Engineer-in-Charge Sean Nottingham brings a bag of his own tools for his own use, and sometimes other crewmember use Nottingham’s tools. The content of Nottingham’s tool bag varies, but it will generally include minor hand tools such as screw drivers and wrenches and some engineering-related tools like those used to terminate cables.

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   According to SBPM Nelson’s uncontradicted testimony, the Employer’s director of live programming (DLPE), currently Chad Folkestad, is the person in charge of all the various programming and events that occur at Target Arena during basketball games. For each game, the DLPE creates a “rundown,” essentially a script listing key events that will take place and be electronically recorded during the game.⁶ SBPM Nelson explained that the crew’s director works closely with the DLPE to ensure that the production on the center-hung board is of a quality and content that satisfy the Employer’s standards.⁷ More specifically, on the day of a game, the director arrives at Target Arena before the rest of the crew and meets with the DLPE.⁸ During these pregame meetings, the DLPE and the director discuss what the crewmembers will do during the game, including during “nongame times.”⁹ The DLPE will sometimes conduct a rehearsal before the game starts with certain crewmembers, in which they review the rundown and events that will occur during nongame times. For example, during rehearsal the DLPE may tell camera operators where Crunch, the Timberwolves’ mascot, is expected to be at certain times and what types of camera shots should be used so that the audience will be able to see Crunch clearly. The crew’s adherence to the DLPE’s rundown is not absolute because, as noted below, live calls by the director or the DLPE during a game take precedence over the rundown.

   At some point shortly before tipoff, the director, along with some crewmembers, reports to the...