Blue Man Vegas, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2007 Decided June 10, 2008

No. 06-1328

BLUE MAN VEGAS, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE

EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND

ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES,

CANADA, LOCAL 720, AFL-CIO,

INTERVENOR

Consolidated with

06-1341

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Lawrence D. Levien argued the cause for petitioner.

With him on the briefs was Edward P. Lazarus.

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Amy H. Ginn, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Assistant

General Counsel, and Jill A. Griffin, Supervisory Attorney.

Ruth E. Burdick, Attorney, entered an appearance.

Michael A. Urban argued the cause and filed the brief for

intervenor.

Before: GINSBURG, BROWN, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: Blue Man Vegas, LLC

(BMV) petitions for review of the National Labor Relations

Board’s decision that it engaged in unfair labor practices by

refusing to bargain with the International Alliance of

Theatrical Stage Employees, Moving Picture Technicians,

Artists & Allied Crafts of the United States, Its Territories &

Canada, AFL-CIO (the Union), elected to represent certain of

its employees. BMV argues the Board erred in holding the

bargaining unit proposed by the Union was appropriate. We

deny Blue Man’s petition and grant the Board’s cross-

application for enforcement.

I. Background

BMV manages and produces the Las Vegas production

of the Blue Man Group, a theatrical show in which men

wearing blue grease paint on their faces and heads and

dressed entirely in black perform a series of skits and dance

routines involving music, props, and videos. On stage with

the “Blue Men” are seven musicians. The Blue Men and the

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musicians are assisted by a stage crew comprising seven

departments: audio; carpentry; electrics; properties (props);

video; wardrobe; and musical instrument technicians (MITs),

who maintain the musical instruments, many of which are

unique to Blue Man Group productions. There are also a

handful of so-called “swings,” who BMV explains are

“trained in numerous departments to provide coverage ... as

needed due to vacation or illness.” During a performance,

each of the seven stage crews performs its own “cue tracks,”

which are series of carefully planned actions. For example, a

carpentry crew’s cue tracks might involve placing and

moving scenic backdrops at specified times.

From 2000 through most of 2005, BMV performed at the

Luxor Hotel and Casino. During that time, BMV employed

the MITs directly, but the Luxor employed the members of

the other stage crews, as to whom it entered into a collective

bargaining agreement with the Union. As a result, there were

differences in the terms and conditions of employment of the

MITs and of the other crews. The MITs reported to BMV’s

Production Manager, John McInnis, whereas the other stage

crews reported to the Luxor; the MITs were paid a salary

whereas the others were paid an hourly wage; and the MITs’

pre-performance sign-in sheet was separate from the sign-in

sheet for the others.

In September 2005, BMV left the Luxor and reopened a

month later at the Venetian Hotel and Casino. Incident to the

move, BMV decided to employ the entire stage crew directly.

To handle its many new stage crew employees, BMV erected

a new management structure. A department head would

supervise the employees in each of the six departments that

previously reported to the Luxor, and the “technical

supervisor” would supervise the six new department heads

and report to McInnis.

4

Although the employees in all seven stage crew

departments were now employed directly by BMV, several

differences between the MITs and the other crews were

carried over from the Luxor to the Venetian. First, whereas

the others were separated from McInnis, the production

manager, by two levels of supervision (a department head and

the technical supervisor), the MITs continued to report

directly to McInnis. Second, the two MITs who had been

with BMV at the Luxor were still paid a salary, whereas the

members of the other crews were paid a wage, as they had

been at the Luxor. (The four MITs hired after BMV left the

Luxor were paid a wage, however.) Finally, the MITs’ sign-

in sheet remained separate from the sign-in sheet for the other

crews.

In March 2006, the Union petitioned the Board for a

representation election in a unit comprising all stage crew

employees except the MITs. BMV objected that the MITs

should be included in the bargaining unit. After a hearing, the

Board’s Regional Director (RD) determined, pursuant to

§ 9(b) of the National Labor Relations Act, 29 U.S.C. §

159(b), that the unit proposed by the Union was an

appropriate unit and ordered a representation election. The

RD found significant the differences between the MITs and

the other stage crews that stemmed from the prior unit’s

bargaining history, namely, those relating to supervision,

form of payment, and sign-in sheets. He also found

significant a number of differences that cannot be attributed

to BMV’s time at the Luxor: The MITs have separate

substitutes during days off and vacations, “skills separate

from the other stage crew members,” and different cue tracks;

they “do not ‘swing’ to other stage crew positions”; and they

“work in different areas” and “interact[]” primarily “with

musicians, not stage crew members.” The Board denied

BMV’s petition for review of the RD’s decision.

5

The Union won the ensuing representation election by a

vote of 20-14 and the RD duly certified the Union as the

exclusive bargaining representative. About a month later, the

RD issued a complaint against BMV alleging it had refused to

bargain with the Union, in violation of § 8(a)(1) and (5) of the

NLRA, 29 U.S.C. § 158(a)(1) & (5). BMV argued it was not

required to bargain because the exclusion of the MITs

rendered the unit inappropriate. Finding BMV had raised or

could have raised all issues relating to representation in the

prior unit determination hearing and BMV did not proffer any

previously unavailable evidence, the Board granted summary

judgment for the General Counsel. BMV then petitioned for

review in this court and the Board cross-applied for

enforcement of its decision.

II. Analysis

BMV challenges the Board’s decision that its refusal to

bargain was an unfair labor practice on the ground that the

unit was not appropriate. See Terrace Gardens Plaza v.

NLRB, 91 F.3d 222, 225 (D.C. Cir. 1996) (“Judicial review

[of an order directing a representation election] is available

only if the employer refuses to bargain and is found, in a final

order of the Board, to have violated § 8(a)(5)” of the NLRA).

“This court will uphold an NLRB bargaining unit

determination unless it is arbitrary or not supported by

substantial evidence in the record.” Country Ford Trucks,

Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000).

BMV advances three arguments: The Board applied the

wrong standard to determine whether the proposed unit was

appropriate; the unit determination was not supported by

substantial evidence; and the exclusion of the MITs from the

proposed unit created a “disfavored residual unit.” None is

persuasive.

6

A. The Unit Determination Standard

BMV’s primary argument is that the Board applied a

standard for the unit determination that conflicts with the

NLRA and has been, for that reason, rejected by the Fourth

Circuit. BMV’s position, although superficially plausible, is

based upon a misapprehension of the framework governing

unit determinations.

The Board’s principal concern in evaluating a proposed

bargaining unit is whether the employees share a “community

of interest.” NLRB v. Action Auto., Inc., 469 U.S. 490, 494

(1985); see also Agri Processor Co., Inc. v. NLRB, 514 F.3d

1, 8-9 (D.C. Cir. 2008). “There is no hard and fast definition

or an inclusive or exclusive listing of the factors to consider

[under the community-of-interest standard]. Rather, unit

determinations must be made only after weighing all relevant

factors on a case-by-case basis.” Country Ford Trucks, 229

F.3d at 1190-91 (quotation marks, citations, and ellipsis

omitted). Those factors include whether, in distinction from

other employees, the employees in the proposed unit have

“different methods of compensation, hours of work, benefits,

supervision, training and skills; if their contact with other

employees is infrequent; if their work functions are not

integrated with those of other employees; and if they have

historically been part of a distinct bargaining unit.” Trident

Seafoods, Inc. v. NLRB, 101 F.3d 111, 118 n.11 (D.C. Cir.

1996); see also Agri Processor, 514 F.3d at 9 (collecting

factors); NLRB v. Lundy Packing Co. (Lundy II), 68 F.3d

1577, 1580 (4th Cir. 1995) (listing factors). And, although

the NLRA provides “the extent to which the employees have

organized shall not be controlling,” 29 U.S.C. § 159(c)(5), the

Supreme Court has held that the extent of their organization

may be “consider[ed] ... as one factor” in determining

whether a proposed unit is appropriate. NLRB v. Metro. Life

Ins. Co., 380 U.S. 438, 442 (1965).

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Decisions of the Board and of the courts in unit

determination cases generally conform to a consistent analytic

framework. If the employees in the proposed unit share a

community of interest, then the unit is prima facie

appropriate. In order successfully to challenge that unit, the

employer must do more than show there is another

appropriate unit because “more than one appropriate

bargaining unit logically can be defined in any particular

factual setting.” Country Ford Trucks, 229 F.3d at 1189

(quotation marks omitted). Rather, as the Board emphasizes,

the employer’s burden is to show the prima facie appropriate

unit is “truly inappropriate.” Id. at 1189; Dunbar Armored,

Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999) (“clearly

inappropriate”) (quotation marks omitted); see also

Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 236

(D.C. Cir. 1996) (the Board “need only select an appropriate

unit, not the most appropriate unit”) (quotation marks

omitted).

A unit is truly inappropriate if, for example, there is no

legitimate basis upon which to exclude certain employees

from it. That the excluded employees share a community of

interest with the included employees does not, however, mean

there may be no legitimate basis upon which to exclude them;

that follows apodictically from the proposition that there may

be more than one appropriate bargaining unit. If, however,

the excluded employees share an overwhelming community

of interest with the included employees, then there is no

legitimate basis upon which to exclude them from the

bargaining unit. We held in Trident Seafoods, for example,

the Board’s unit determination was “irrational” and

“unsupported by substantial evidence” because the employer

had adduced unrebutted evidence showing that “the

functional integration of and the overwhelming similarities

between the [excluded] and [included employees] are such

that neither group can be said to have any separate

8

community of interest justifying a separate bargaining unit.”

101 F.3d at 120; see also Jewish Hosp. Ass’n, 223 N.L.R.B.

614, 617 (1976) (unit limited to service employees

inappropriate because of “overwhelming community of

interest” with maintenance employees); Lodgian, Inc., 332

N.L.R.B. 1246, 1255 (2000) (RD required inclusion in unit of

employees who “share an overwhelming community of

interest with the employees whom the [union] seeks to

represent”).

A Venn diagram may

clarify these principles. Each

rectangle represents the interests

of a group of identically situated

employees. The region in

which two or more rectangles

overlap represents the degree to

which those groups have

common interests. In Figure 1,

Rectangles A, B, and C all

overlap because all the groups

have a community of interest

with each other. Consequently, any combination of the

groups – AB, AC, BC, or ABC – is a prima facie appropriate

bargaining unit. Note, however, that Rectangles A and B

overlap almost completely; this indicates they have an

overwhelming community of interest. Any unit that includes

one but excludes the other is “truly inappropriate.”

Therefore, the only units that could be deemed appropriate in

the face of a challenge are AB and ABC.*

*

This framework complements the Board’s accretion policy.

“The term ‘accretion’ ... means the addition of employees into a

unit without an election.” Frontier Tel. of Rochester, 344 N.L.R.B.

1270, 1270 n.3 (2005). Typically, an employer seeks an accretion

9

BMV contends the Board applied the wrong standard in

making its unit determination, effectively “accord[ing]

controlling weight to the Union’s extent of organization,” in

violation of § 9(c)(5) of the NLRA. According to BMV, the

Board erred in basing its decision upon Lundy Packing Co.

(Lundy I), 314 N.L.R.B. 1042, 1043-44 (1994), in which the

Board upheld the unit proposed by the union, thereby

“fail[ing] to heed” the Fourth Circuit’s subsequent refusal to

enforce that decision, which BMV says rested on the ground

that the overwhelming-community-of-interest standard

unlawfully gives controlling weight to the union’s extent of

organization.

BMV’s reading of Lundy II and of the Board’s decision

in this case reflect a misapprehension of the governing

framework just described, as well as a misreading of the

when it has added a new department and wants to include the new

employees in a pre-existing bargaining unit. See id. at 1270-71. “It

is the policy of the Board to find accretions only when the

additional employees have little or no separate group identity ... and

when the additional employees share an overwhelming community

of interest with the preexisting unit to which they are accreted.”

Giant Eagle Mkts. Co., 308 N.L.R.B. 206, 206 (1992) (quotation

marks omitted). The decision to permit an accretion thus reflects “a

legal conclusion that two groups of employees constitute one

bargaining unit.” Northland Hub, Inc. & Gen. Teamsters Local

959, 304 N.L.R.B. 665, 665 (1991). “In determining ... whether the

requisite overwhelming community of interest exists to warrant an

accretion, the Board considers many of the same factors relevant to

unit determinations in initial representation cases, i.e., integration

of operations, centralized control of management and labor

relations, geographic proximity, similarity of terms and conditions

of employment, similarity of skills and functions, physical contact

among employees, collective bargaining history, degree of separate

daily supervision, and degree of employee interchange.” Frontier

Tel., 344 N.L.R.B. at 1271.

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Fourth Circuit’s opinion. In effect, BMV contends that, as

long as the MITs had a community of interest to any degree

with the other stage crews, they could not be excluded from

the bargaining unit. That view is obviously at odds with the

principles discussed above.

Lundy II, on the other hand, is consistent with the

framework set out above. The Fourth Circuit there objected

to the combination of the overwhelming-community-of-

interest standard and the presumption the Board had

employed in favor of the proposed unit: “By presuming the

union-proposed unit proper unless there is ‘an overwhelming

community of interest’ with excluded employees, the Board

effectively accorded controlling weight to the extent of union

organization.” Lundy II, 68 F.3d at 1581. As long as the

Board applies the overwhelming community-of-interest

standard only after the proposed unit has been shown to be

prima facie appropriate, the Board does not run afoul of the

statutory injunction that the extent of the union’s organization

not be given controlling weight.

Here, the Board correctly applied the overwhelming-

community-of-interest standard; it did not presume the

Union’s proposed unit was valid, as it had done in Lundy I.

Rather, the RD first determined “[t]he record ... establishes

that the petitioned-for unit, which excludes MITs, is an

appropriate unit for collective bargaining”; indeed, he noted,

“the parties have never contended” otherwise. The RD then

went on to apply the overwhelming-community-of-interest

standard to determine whether BMV had shown the exclusion

of the MITs rendered the proposed unit truly inappropriate.

As the Board says, the RD cited Lundy I to support the

generally correct proposition that “a unit need not be an all-

inclusive unit in order to be an appropriate unit,” and then

looked to that decision for guidance as to the “factors” to be

considered in deciding whether the two groups of employees

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have an overwhelming community of interest. The Board’s

use of the overwhelming-community-of-interest standard,

therefore, did not give controlling weight to the extent of the

Union’s organization.

B. Substantial Evidence

BMV contends the Board’s finding that the proposed

bargaining unit was appropriate was not supported by

substantial evidence. As discussed above, the Board based its

finding upon the many differences between the terms and

conditions under which the MITs and the other stage crews

worked. In attempting to refute the Board’s finding, BMV

contends there are few if any relevant differences between the

MITs’ terms and conditions of employment and those of the

other crews. BMV also contends the Board’s finding

conflicts with precedent. In response, the Board argues the

differences between the MITs and the employees included in

the bargaining unit were sufficiently substantial that the unit

could “constitute a distinct and appropriate unit separate and

apart from the MITs,” and that its decision was consistent

with precedent. We agree with the Board.

BMV launches its challenge to the evidence upon which

the Board relied by isolating the differences that “are

holdovers from the Luxor,” namely, the different supervisory

structure, separate sign-in sheets, and salary versus wage

compensation. BMV characterizes these differences as

matters of “bargaining history,” and then ties the bargaining

history to the “extent of organization,” thus: “The Regional

Director reache[d] beyond the parties in this case and relie[d]

on an IATSE contract with a completely different employer

[i.e., the Luxor]. This bargaining history is not relevant to

this analysis except to demonstrate the Union’s extent of

organization.”

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We need not decide whether BMV correctly equates

bargaining history with extent of organization in the

circumstances of this case because this line of argument still

would fail for two reasons. First, the differences between the

MITs and the other stage crew employees that are “holdovers

from the Luxor” are not merely of historical interest; they are

present facts the Board could reasonably conclude

differentiate the employment interests of the MITs from those

of the other crews. As the Board rather forcefully puts it, “the

... suggestion ... that the Board should have ignored the terms

and conditions of employment that [BMV] intentionally

carried over from the Luxor is absurd.” Second, in light of

the numerous differences that are not “holdovers from the

Luxor,” the Board cannot be said to have given controlling

weight to bargaining history nor, if it is the same thing on the

present facts, to the Union’s extent of organization.

As for those differences that do not stem from the Luxor

era, BMV maintains they do not distinguish the MITs from

the employees in the other stage crews as a group, but rather

distinguish the employees in each crew from the employees in

every other crew. For example, BMV observes that, although

the MITs have separate substitutes, so do the other stage

crews because “[s]ubs do not work for more than one

department.” BMV makes a similar point with respect to the

MITs’ technical skills, cue tracks, use of swings, work space,

and lack of interaction with other stage crew employees

during the show. Thus, BMV argues, the Board acted

arbitrarily by excluding the MITs from the unit on the basis of

certain differences between the MITs and the other stage

crews while at the same time ignoring the same types of

differences among the various crews that were included in the

unit.

We need not decide whether that would be an arbitrary or

otherwise unlawful decision because that is not what the

13

Board did. Rather, as discussed above, the Board recognized

the MITs also differ from the employees in the other crews in

ways that are “holdovers from the Luxor” and are therefore

unique to the MITs, namely, in terms of supervision, form of

payment, and sign-in sheets. The Board did not act arbitrarily

by treating the MITs differently from the other stage crew

employees in light of those differences.

Moreover, the Board’s finding that the proposed unit was

appropriate without the MITs was certainly reasonable and

supported by substantial evidence in view of the analytic

framework set out above. A unit comprising all the non-MIT

stage crews is prima facie appropriate because,

notwithstanding the differences among them, those

employees share a community of interest. It may well be that

a unit comprising all the stage crews, including the MITs,

would also be prima facie appropriate because the MITs also

share a community of interest with the other stage crew

employees, but that does not necessarily render the unit

comprising only the non-MIT stage crews “truly

inappropriate.” Indeed, both the differences that are unique to

the MITs and the differences that can be found among all the

stage crews stand in BMV’s way: The MITs lack an

overwhelming community of interest with the other stage

crews (just as each of the non-MIT crews may lack an

overwhelming community of interest with each of the other

non-MIT crews).

To illustrate, in Figure 2 Rectangle M represents the

interests of the MITs, while Rectangles X and Y represent the

interests of the employees in any two other departments. The

shaded regions represent interests relating to subs, technical

skills, cue tracks, swings, work space, and interaction with

members of other stage crews during the show, that is, factors

with respect to which each department has (we assume)

different interests. The spotted regions represent interests

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relating to

supervision, sign-in

sheets, and form of

payment, that is,

factors carried over

from the Luxor, which

distinguish the MITs

from the employees in

all the other stage

crew departments.

The Board in effect

found Unit XY

appropriate. As the

diagram shows, the Board was justified in doing so, though it

could also have found Unit XYM appropriate because all

three rectangles overlap, reflecting a community of interest

among them, as represented by the cross-hatched region.

Unlike Rectangles A and B in Figure 1, however, Rectangle

M does not have a nearly complete overlap with any other

rectangle, reflecting the MITs’ lack of an overwhelming

community of interest with any of the other stage crews.

Consequently, the exclusion of Rectangle M from a unit

comprising Rectangles X and Y – that is, the exclusion of the

MITs from the unit comprising the other stage crew

employees – does not render that unit “truly inappropriate,”

notwithstanding the substantial differences among the stage

crew employees, as represented by the shaded and spotted

regions.

Turning from the facts to the law, BMV claims the

Board’s finding that the MITs do not share an overwhelming

community of interest with the other stage crews conflicts

with the Fourth Circuit’s analysis in Lundy II and with the

Board’s analysis in Studio 54, 260 N.L.R.B. 1200 (1982). As

BMV notes, “the Board cannot ignore its own relevant

precedent but must explain why it is not controlling.”

15

Lemoyne-Owen College v. NLRB, 357 F.3d 55, 60 (D.C. Cir.

2004) (quotation marks omitted). We find the Board’s

decision consistent with both Lundy II and Studio 54 because

neither case involved differences as extensive as here.

In Lundy II, the excluded employees differed from the

included employees “in a few respects: (1) the method for

calculating their earnings; (2) supervision; and (3) a lack of

interchangeability with” the included employees. 68 F.3d at

1580. Rejecting the Board’s approval of the proposed unit,

the court remarked, “The exclusion of ... employees based on

such meager differences is, to say the least, problematic.” Id.

at 1581. Here, according to BMV, “the MITs were excluded

from the bargaining unit based on nearly the same ‘meager

differences’ – different second line supervision, partly

different pay structure, and separate sign-in sheets.” The

Board responds that, “[i]n contrast [to Lundy II], here, the

Board did not fragment a traditionally appropriate unit.” We

think the Board’s decision here was consistent with Lundy II

for a more basic reason: Even if those differences in

supervision, pay structure, and sign-in sheet are too “meager”

on their own to justify the exclusion of the MITs from the

bargaining unit, they are only a fraction of the differences

upon which the Board relied. The sum of those differences

was sufficient to justify the Board’s decision that the MITs do

not share an overwhelming community of interest with the

other stage crew employees.

BMV’s comparison of this case to Studio 54 is similarly

flawed. Studio 54 strove “to create an ambiance through

music, lights, props, scenery, and ... the participation of many

employees in an evening’s festivities.” Studio 54, 260

N.L.R.B. at 1200. The union had proposed a bargaining unit

of all employees except “stagehands,” including “disc

jockeys, house board light operators, disco light board

operators, flymen, and preset men.” Id. The employer raised

16

no threshold question whether the proposed unit was prima

facie appropriate; the issue it raised was whether the

exclusion of the stagehands rendered the unit inappropriate.

Despite a difference in supervision between the stagehands

and the other employees, the Board concluded that, in light of

the “interchange of job functions” between them, the

stagehands did “not possess a community of interest so

separate and distinct from [that of the included] employees as

to warrant separate representation.” Id. From this decision

BMV extracts the rule that “minor supervisory differences

should not be determinative.”

Be that as it may, we agree with the Board that Studio 54

does not conflict with the Board’s decision here because of

the panoply of other differences that separate the MITs from

the other stage crew departments. Further, as the Board

notes, the functional integration of Studio 54’s employees

“far exceeded anything in BMV’s show.” For example, non-

stagehands at Studio 54 “occasionally perform[ed] stagehand

work,” “[a]t least two stagehands ... occasionally work[ed] on

non-stage electrical equipment and perform[ed] general

maintenance,” and “[n]on-stagehands and stagehands alike

often mingle[d] and/or dance[d] with patrons[,] ... help[ing] to

create the festive atmosphere [Studio 54] desire[d].” Studio

54, 260 N.L.R.B. at 1200. The only evidence of functional

interchange BMV offers is that, when the company performs

at a location other than the Venetian, “[t]he entire crew will

work together to pack up the needed equipment and gear, load

it, transport it, and set it up at the outside site ... with little

differentiation between the segments of the stage crew.” But

whether BMV performs at the Venetian or offsite, it appears

that each stage crew department remains solely responsible

for the technical tasks ordinarily within its domain; nothing

suggests the MITs perform tasks ordinarily assigned to, say,

the wardrobe crew. Therefore, though certainly relevant to

this case, Studio 54 is not “so inconsistent with the [RD’s]

17

decision so as to mandate reversal here.” Int’l Union of

Operating Eng’rs v. NLRB, 595 F.2d 844, 850 (D.C. Cir.

1979); see Overnite Transp. Co., 325 N.L.R.B. 612, 612-13

(1998) (holding unit need not include mechanics in light of

their separate work area and supervision, different uniforms,

special skills, and lack of significant functional interchange).

In summary, we see no reason to disturb the Board’s

finding that the proposed unit was not rendered “truly

inappropriate” by the exclusion of the MITs. The Board was

justified in considering the ways in which the terms and

conditions under which the MITs work differed from those

under which the other stage crews work, including the

differences that stem from BMV’s time at the Luxor and

therefore are unique to the MITs. The Board was also

justified in considering the differences that do not stem from

the Luxor era but distinguish each crew from every other

crew. The Board reasonably concluded that whatever

interests the MITs shared with the employees in the unit were

not overwhelming in light of those numerous differences.

C. Residual Unit

Finally, BMV contends the Board’s decision is arbitrary

and capricious because it creates an allegedly “disfavored

residual unit.” According to BMV, a residual unit consists of

excluded employees “sharing a community of interest with

the [included] employees.” Thus, BMV argues, because the

MITs “shar[e] an obvious community of interest” with the

other stage crew departments, the Board improperly created a

residual unit of MITs by excluding them from the unit.

BMV’s supposed rule against residual units is

misconceived. It implies that all employees who share a

community of interest must be included in the same unit,

which proposition conflicts with the principle that more than

18

one bargaining unit may be appropriate in any particular

setting. See, e.g., Country Ford Trucks, 229 F.3d at 1189-91

(holding that although “broader unit encompassing all parts

and service department employees at both facilities” may

have been appropriate, Board not “required” to include all

such employees in unit in light of differences between

facilities). In any event, the Board’s residual unit policy has

no bearing upon this case because it relates only to whether a

proposed residual unit is appropriate, not to whether a

proposed initial unit is appropriate. See Carl Buddig & Co.,

328 N.L.R.B. 929, 930 (1999).*

III. Conclusion

In sum, we hold the Board applied the correct legal

standard to determine whether the proposed bargaining unit

was appropriate. The Board’s determination that the MITs

may be excluded from the bargaining unit because they do not

share an overwhelming community of interest with the stage

crew employees included in the unit is supported by

substantial evidence and does not conflict with precedent or

the Board’s residual unit policy. We therefore deny BMV’s

petition for review and grant the Board’s cross-application for

enforcement.

So ordered.

*

BMV’s other arguments are sufficiently lacking in merit as

not to warrant consideration in a published opinion. Also, we deny

BMV’s motion that the court “take judicial notice of several artistic

reviews of the Blue Man Group show that aptly describe the unique

and highly unusual experience of attending a Blue Man Group

performance.” See Pa. Transformer Tech., Inc. v. NLRB, 254 F.3d

217, 225 n.4 (D.C. Cir. 2001).