THE WANG THEATRE INC. d/b/a CITI PERFORMING CENTER,

• Docket Number: 01-CA-179293

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.

The Wang Theatre, Inc. d/b/a Citi Performing Arts Center and Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL–CIO. Case 01–CA–179293

February 14, 2017

ORDER DENYING MOTION

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

The Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 364 NLRB No. 146 (2016) is denied. The Respondent has not identified any material error or demonstrated extraordinary circumstances warranting reconsideration under Section 102.48(d)(1) of the Board’s Rules and Regulations. Dated, Washington, D.C. February 14, 2017

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Mark Gaston Pearce Member

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Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

ACTING CHAIRMAN MISCIMARRA, concurring.

This case originated with a representation petition filed by Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL–CIO (Union), seeking to represent local musicians employed in various musical productions. The petition identified the Respondent—The Wang Theatre, Inc. d/b/a Citi Performing Arts Center (the “Theatre”)—as the employer. I write separately because I believe substantial questions exist regarding whether the Theatre can properly be regarded as the employer of local musicians who perform in productions that take place at the Theatre. However, the Board presently is considering a motion for reconsideration, and this posture of the case, as explained below, does not permit the Board to address the merits of these questions. Therefore, I concur with my colleagues’ denial of Respondent’s motion for reconsideration.

Background

On January 28, 2016, the Board’s Acting Regional Director issued a Decision and Direction of Election (DDE) that provided for an election among local musicians “employed” by the Theatre.¹ However, the DDE noted that the Theatre hosted 22 productions in 2015, none of which involved the employment of any musicians; and the Theatre hosted 21 productions in 2014, of which only two required the hiring of local musicians. In those two productions combined, a total of 17 local musicians worked between 19 and 105 hours. The Theatre requested review of the DDE, and a three-member panel of the Board denied review on June 3, 2016.² I was not a member of the panel that denied review.

In the ensuing election, the Union prevailed, and the Theatre refused to bargain, which is the only way an employer can obtain court review of decisions rendered by the Board in representation cases. These are commonly referred to as “test-of-certification” cases. In such a case, the employer’s refusal to bargain prompts the filing of an unfair labor practice charge with the Board, resulting in the issuance of a complaint against the employer alleging that its refusal to bargain violates Section 8(a)(5) of the Act, and the Board grants summary judgment against the employer because no facts regarding the employer’s refusal to bargain are disputed. Significantly, when deciding whether to grant summary judgment in a test-ofcertification case, the Board does...