Blue Man Vegas, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 18, 2008

28-CA-021126 (N.L.R.B. Jul. 18, 2008)

JD(SF)-29-08
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BLUE MAN VEGAS, LLC
and Cases 28-CA-21126
28-CA-21235
28-CA-21439
INTERNATIONAL ALLIANCE OF THEATRICAL 28-CA-21776
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS
OF THE UNITED STATES AND ITS TERRITORIES
AND CANADA, LOCAL 720, AFL-CIO
John Giannopoulos, Atty., Counsel for the General Counsel,
Region 28, Phoenix, Arizona.
Lawrence D. Levien and Elizabeth Cyr, Akin Gump Strauss Hauer & Feld, LLP,
Counsel for Respondent, Washington, DC.
Michael A. Urban, Laquer, Urban, Clifford & Hodge LLP,
Charging Party, Las Vegas, Nevada.
DECISION
I. Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Las Vegas on
March 11 through 12 and April 29, 2008.1 On February 25, 2008, the Regional Director of
Region 28 (the Regional Director) of the National Labor Relations Board (the Board) issued an
Order Consolidating Cases (the Complaint), which consolidated for hearing the Second
Consolidated Complaint and Notice of Hearing (Second Consolidated Complaint) and the
Complaint and Notice of Hearing (28-CA-21776 Complaint). The Second Consolidated
Complaint and the 28-CA-21776 Complaint were issued, respectively, on August 29 and
February 25, 2008 by the Regional Director based upon charges filed by International Alliance
of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the
United States and its Territories and Canada, Local 720, AFL-CIO (the Union). The Complaint
alleges Blue Man Vegas, LLC (the Respondent or Blue Man) violated Sections 8(a)(1), (3), (4),
and (5) of the National Labor Relations Act (the Act).2 Respondent essentially denied all
allegations of unlawful conduct.

1 All dates herein are 2006 unless otherwise specified.
2 At the hearing, the General Counsel amended the Second Consolidated Complaint to delete Lisa
Embs and Tammy Unglesbee from Paragraph 4 and to allege the Respondent’s refusal on January 19,
2007 to employ or to consider for employment Marielle Thorne. The General Counsel moved to amend
the Second Consolidated Complaint to allege the unlawfulness of the third provision of page 1 of the
Respondent’s 2007 Employee Handbook, which motion was denied. In his post-hearing brief, Counsel
for the General Counsel requests reconsideration of the denial, which request is also denied.
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II. Issues
1. Did the Respondent independently violate Section 8(a)(1) of the Act by the following
conduct: threatening employees by informing them that they were being denied work
opportunities because they engaged in union activities and because the Union had filed
charges concerning them with the Board; maintaining in its Employee Handbook
provisions relating to Confidentiality, No Solicitation/No Distribution, and Press
Events/Opportunities that interfere with, restrain, and coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act?
2. Did the Respondent violate Section 8(a)(3) and (1) by refusing to transfer employee
Marielle Thorne to the position of substitute employee because of her union activities
and the union activities of other employees.
3. Did the Respondent violate Section 8(a)(3) and (4) by denying employee Marielle
Thorne the opportunity to work as a substitute employee because of her union activities
and because she was the subject of an unfair labor charge filed by the Union with the
Board?
4. Did the Respondent violate Section 8(a)(1) and (5) of the Act by announcing and
granting a $1.00 wage increase to certain unit employees and by changing its
compensation policy of Short Turnaround Pay Premium for unit employees?
5. Did the Respondent violate Section 8(a)(5) of the Act by failing and refusing to furnish the
Union with information requested by the Union that is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collective-bargaining representative of
unit employees?
III. Jurisdiction
At all relevant times, the Respondent, a Delaware corporation, has been engaged in the
business of providing live entertainment with an office and place of business in Las Vegas,
Nevada (the Respondent’s facility).3 During the 12-month period ending December 18, in
conducting its business operations, the Respondent derived gross revenues in excess of
$500,000 and purchased and received at its facility goods valued in excess of $5,000, directly
from points located outside the State of Nevada. I find Respondent has at all relevant times
been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act. Respondent admits, and I find, the Union has at all relevant times been a labor
organization within the meaning of Section 2(5) of the Act.
IV. Findings of Fact
A. History of Union Representation
Blue Man Productions (BMP), located in New York City, is the umbrella entity for all Blue
Man Group production companies, each of which stages unique musical and theatrical
experiences revolving around three bald, blue men and combining live music, video imagery,
and audience participation to create a distinctive, multi-sensory audience experience.4 The Blue

3 Unless otherwise explained, findings of fact herein are based on party admissions, stipulations, and
uncontroverted testimony. Counsel for the General Counsel’s unopposed post-hearing motion to correct
the transcript and to substitute the complete declaration of Troy Poe for the incomplete document marked
as Respondent’s Exhibit No. 21 is granted. The motion and corrections are received as ALJ exhibit 1.
4 The Respondent’s post-hearing motion that judicial notice be taken of five magazine articles
descriptive of the Blue Man Show is denied.
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Man Group production companies perform in multiple venues nationally and internationally with
the Respondent being the Las Vegas production. The Respondent opened at the Las Vegas
Luxor Hotel in 2000 and in 2005 transferred the production to the Venetian Hotel. Upon
relocation to the Venetian Hotel in 2005, the Respondent employed stagehands and wardrobe
employees, all of whom were unrepresented by any Union.
In December 2005, the employees began organizing a union at the company. The
Respondent sought to have musical instrument technicians (MIT) including in any appropriate
unit. Following a representation hearing, the Regional Director found, contrary to the
Respondent’s position, that the following unit of the Respondent’s employees (the Unit) was
appropriate:
All full-time and regular part-time stagehands and wardrobe employees,
excluding all other employees, office-clerical employees, guards and supervisors
as defined in the Act.
On May 25, the Board conducted a representation election among employees in the
Unit, in which 20 votes were cast for the Union and 14 against. On June 5, the Board certified
the Union as the exclusive collective-bargaining representative of the Unit under Section 9(a) of
the Act, and on September 14, the Board ordered the Respondent to bargain with the Union.5
The Respondent refused to bargain with the Union and petitioned the Washington D.C. Court of
Appeals for review of the Board’s order in order to test certification. Success of the
Respondent’s appeal would require a new representation election.6 On June 10, 2008, the
Court denied the Respondent’s petition for review and granted the Board’s cross-application for
enforcement.7
B. Alleged Violations of Section 8(a)(5) of the Act
In mid September, Respondent unilaterally announced and implemented a $1.00 pay
raise for unit employees. On October 9, the Respondent changed its compensation policy of
Short Turnaround Pay Premium (Pay Premium Policy), which eliminated the 3-hour minimum
pay for employees who were not given an 8-hour rest period between work calls.
By letter dated April 25, 2007 the Union requested 24 specific items of information
relevant to the Respondent’s unit employees. The information sought covered personnel
information, breakdown of benefits, wage rates and wage history by employee classification,
copies of all employee benefit plans along with cost breakdown, actuarial reports and asset
description of any retirement plans, paid time-off information, copies of evaluations and merit
pay increases, copies of disciplinary actions within the last two years, information about the
current workers’ compensation carrier, information about safety training and procedures,
breakdown of current staffing patterns and work schedules, copies of dress code, drug/alcohol,

5 Blue Man Las Vegas, LLC, 348 NLRB No. 10 (2006).
6 By memorandum dated January 30, 2007 the Respondent informed employees, in pertinent part,
that should a new election be directed, “crew members employed at the time of [the] new vote [would] get
to vote,” including substitute employees.
7 Blue Man Vegas, LLC v. N.L.R.B, __F.3d __ (C.A.D.C. 2008).
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and leaves of absence policies with usage details for the latter policies, and copies of employee
equipment complaints along with complaint actions taken by the Respondent. The Respondent
did not reply to the Union’s request.8
C. Alleged Violations of Section 8(a) (3), (4) and (1) of the Act
1. Denial to Marielle Thorne of Opportunity
to Work as Substitute Employee
At all relevant times the following employees held the positions set forth opposite their
respective names and have been supervisors of the Respondent within the meaning of Section
2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act:
Phil Stanton - Owner and Founder
Dan Boesch - Head of Props Department
Troy Poe - Human Resources Manager
Kori Prior - Production Supervisor
Thomas Studer - Technical Supervisor
The Respondent’s Las Vegas Employee Handbook, version 9/05 (Employee
Handbook)9 addresses, inter alia, the following subjects:
UNPAID LEAVES OF ABSENCE (pages 36-37)
One of the unique characteristics about [the Respondent] is the number of company
members with additional artistic/career interests. To continue to support company
members’ ability to grow professionally both within and beyond the organization, [the
Respondent] offers a leave of absence option. A leave of absence is any absence longer
than the amount of [personal time off] the requesting company member has accrued.10
Upon one (1) year of continuous employment, company members in good standing
(meeting job expectations, no disciplinary actions active) may apply for a maximum of 12
weeks leave of absence without pay…The request may be denied if, in the judgment of
management, a company member’s absence would be detrimental to the
company…Management reserves the right in its sole discretion to deny a leave of
absence.
HOLIDAY SEASON MORATORIUM (page 36)
Due to the intense Holiday Schedule, all company members directly connected with the
running or production of the show may not request or take [personal time off] during the
week of Thanksgiving or from mid-December through the first week in January.11 All

8 In its post-hearing brief, the Respondent represents that since the Court’s ruling, the Respondent
has recognized the Union as the collective-bargaining representative of the Unit and has begun to
respond to the Union’s request for information.
9 The parties stipulated that the Employee Handbook was in effect during Ms. Thorne’s employment.
10 Personal, or paid, time off is an amalgamation of paid sick and vacation leave, which are benefits
not generally available to substitute employees. Although, according to Ms. Prior, substitute employees
may have been permitted to take leaves of absence the policy was written specifically for full-time
employees.
11 The moratorium applied to both full-timers and substitutes although substitutes generally receive
no benefits including personal time off. By Memorandum dated September 21, 2006, the Respondent
notified Crew Department Heads of the moratorium period for 2006.
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company members should submit requests to the HR Generalist four (4) weeks in
advance for specific performances off.12
FULL TIME COMPANY MEMBERS (page 6)
…
Substitutes
Substitutes play an integral part in [the Respondent’s] employment structure. Because of
the intense number of performances scheduled per week, Substitutes ensure that the
performance schedule is covered when company members are on vacation, performing
an outside gig, or are unable to perform for other reasons. Substitute members are
company members who are trained to perform the duties required of a full-time company
member but do not work the equivalent of a full-time schedule on a regular basis. In
order to stay current with the production, Substitutes must work a minimum number of
shows per week.13 Show minimums vary according to position…If a substitute is
consistently unavailable to cover in cases of schedule changes, it may lead to changes in
his/her employment status, up to and including termination.14
Marielle “Apple” Thorne (Ms. Thorne or Apple) began working for the Respondent in July
2005 as a production assistant.15 In September 2005, Ms. Thorne took a position with the
props run crew in the properties department where she prepared and maintained props for the
show under the supervision of Dan Boesch (Mr. Boesch) head of the props department and Kori
Prior (Ms. Prior), Production Supervisor. When Ms. Prior offered the position to Ms. Thorne,
she told Ms. Thorne the position was a non-union job because the company wanted to able to
cross-departmentalize among the crew, which the Union would not allow.
In December 2005, Ms. Thorne became involved with the union organization effort at the
Respondent. Ms. Thorne’s union support was common knowledge, and on more than one
occasion she told Ms. Prior she was a union supporter.
On May 23, two days before the union election, Ms. Prior held a parts department
meeting in which she discussed the Respondent’s existing disciplinary policy, stating that
although the company had a three-step progressive discipline procedure—oral warning, written
warning, termination—they also had the flexibility to give multiple oral or written warnings before
terminating an employee. Ms. Prior warned that under a union contract, the company would be
required to follow the discipline steps strictly. Ms. Thorne said her understanding was that
under a union contract, the company could still work with an individual employee by giving
multiple warnings before termination. According to Ms. Thorne, Ms. Prior said, “Why would I
want to work with you if you went union?” Ms. Thorne replied that Ms. Prior’s response was
frightening to hear and was part of the reason many employees supported the Union. Kris
Kennell (Mr. Kennell) and Justin Lex (Mr. Lex), current props department employees of the

12 While working as a sub, Mr. Lex was off work from approximately December 8-21 while he
performed in “The Nutcracker.” He thereafter returned to work but took the 2006-2007 New Year Holiday
off when Mr. Boesch offered him the option. Although Ms. Prior was aware Mr. Lex was performing in
“The Nutcracker,” she did not “micromanage that situation.”
13 Although the minimum number was unspecified, Ms. Prior said substitutes were expected to work
at least one show every week, which might be extended to every two weeks. The important factor was
that the interval be “regular.”
14 During the period relevant to the Complaint, the Respondent had three substitutes dedicated to the
properties department each of whom typically worked two days a week.
15 Production assistants run errands, shop for show items, pick up orders for rigging, electrical and
other equipment and supplies, supply refreshments, deliver paychecks, etc.
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Respondent, corroborated Ms. Thorne’s testimony, recalling that Ms. Prior asked employees at
the meeting why, if they went union, she would want to work with them.16 I give weight to
Ms. Thorne, Mr. Kennell, and Mr. Lex’s testimony. Not only did I find all three to be persuasive
witnesses, I note that at the time of the hearing the latter two witnesses were still employed by
the Respondent, and as current employees their testimony is likely to be reliable when, as here,
they have testified adversely to their current employer.17
In November, the Respondent issued Ms. Thorne a laudatory work evaluation
accompanied by a 3.5% merit wage increase.18 At about the same time, Mr. Boesch
recommended Ms. Thorne for employment as head of properties with Troika Entertainment
(Troika), which was planning a national tour (the Troika tour).19 The Troika tour would last six-
seven months with several intermittent breaks of two weeks or more.
On about November 12 Ms. Thorne applied for a six month leave of absence (LOA) from
the Respondent in order to join the Troika tour. Ms. Thorne’s immediate supervisor, Tom
Studer (Mr. Studer), rejected the request as being beyond the leave-of-absence parameters set
by the employee handbook. Mr. Studer told Ms. Thorne the Respondent had denied her
application for a LOA, but, as he did not want to lose her as a crewmember, he suggested they
talk to Human Resources Manager, Troy Poe (Mr. Poe) about other options. Mr. Studer,
Mr. Poe, and Ms. Thorne discussed ways of preserving her employment with the Respondent
while permitting her to join the Troika tour. The three considered the possibility of Ms. Thorne’s
accepting a demotion to a position as a substitute and working as a substitute during the Troika
tour breaks (transfer to substitute plan). Mr. Poe said the plan would probably work as long as
the affected department heads were willing to work around Ms. Thorne’s tour and break
schedule, but he first needed to get approval from Andrea Rupp (Ms. Rupp) Human Resources
manager in BMP who had supervisory responsibility over him, as he had never before made
such an arrangement.
On the same day, Mr. Poe telephoned Ms. Rupp and asked whether Ms. Thorne could
transfer to a substitute position.20 Ms. Rupp told Mr. Poe that such transfers occurred regularly.
A short time later, Mr. Poe told Ms. Thorne he had received approval from New York and
that she only needed to sign a document voluntarily accepting demotion to a substitute position.
It was specifically understood that upon transfer to a substitute position, Ms. Thorne would no
longer receive benefits or guarantee of hours. Mr. Poe cautioned Ms. Thorne to understand it
was completely up to the department heads whether or not they would call her in at all during
Troika tour breaks.
At about this same time, the following persons exchanged the following email
communications, as set forth in pertinent part:

16 The Respondent argues that the employees misunderstood a lawful question posed by Ms. Prior:
“Why would the company deviate from a bargaining contract if it had one?” Mr. Kennell, whose testimony
I found to be clear, direct, and reliable, credibly testified that although Ms. Prior initially asked why the
company should deviate from the terms of a future collective-bargaining contract, she additionally asked
employees, “Why would we work with you, if you went union?”
17 See Advocate South Suburban Hospital, 346 NLRB 209 FN1 (2006), citing Flexsteel Industries,
316 NLRB 745 (1995).
18 At the hearing, Mr. Boesch described Ms. Thorne as a “totally competent stage technician” and her
performance as “great.”
19 The tour involved a Broadway musical revue entitled “Chita Rivera” or “The Dancer’s Life.”
20 Mr. Poe testified he did not specifically name Ms. Thorne in this conversation with Ms. Rupp, but
Mr. Studer’s email of November 14 (Email B below) makes it clear that Ms. Rupp was aware the transfer-
to-substitute had been devised for Ms. Thorne when she approved it.
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• Email A:
Sent November 13, 5:03 PM
Mr. Poe to Mr. Studer and Ms. Thorne
[Ms. Thorne’s tour] is a done deal….. unless Apple decides she will miss us too much and
stays! We will change employment status to Sub as of 12/3/06.
• Email B:
Sent November 14, 12:09 PM
Mr. Studer to Ian Pool,21 Ms. Prior and Mr. Poe, copying Ms. Rupp, Barbara Hodgen,22
and Mr. Boesch:
After discussions with [Ms. Thorne, Mr. Poe and Mr. Pool] we have moved forward
regarding [Ms. Thorne’s] desire to go on a non-Blue Man tour. I told her that we could not
grant an LOA and hold her position because the request was too long and went over the
holiday moratorium. I told her that I couldn’t promise her anything, but I would be
interested in hiring her as a Sub when she got back. She was fine with that and we went
to talk to [Mr. Poe] about how to quit and work out the logistics. [During the ensuing
discussion regarding changing Ms. Thorne’s status to part-time, Mr. Poe] explained that
[Ms. Thorne] would no longer receive benefits and no guarantee of hours. She was quite
satisfied with that option. [Mr. Poe] took that back to Andrea [Rupp] and everyone was
amenable.
So, effective 12/3/06, her employment status will change from full-time Crew to part-time
Sub. [Mr. Poe] will get documentation from her that indicates she is requesting this
voluntarily. Her last work day as a full-timer will be 11/30/06…Her Sub rate will reflect her
merit increase. She will be available as a Sub during a month lay-off from the tour which
will be mid January to mid February. She will let us know when she is available after the
tour’s end, which should be early June.
Ms. Prior received Mr. Studer’s November 14 email while enroute to the airport in New
York City. She decided she could not support the arrangement he and Mr. Poe had made with
Ms. Thorne regarding a change to substitute status, and the decision would have to be
reversed. Ms. Prior felt that permitting Ms. Thorne to transfer put the company in a situation
where Ms. Thorne was dictating her availability and her schedule, which the company did not
permit unless it was a day here or a day there very specifically outlined. In Ms. Prior’s view,
unavailability for weeks at a time was not appropriate.
Ms. Thorne completed a reassignment request on November 15, as suggested by
Mr. Poe, after which she signed an employment contract with Troika. The reassignment request
read as follows:
REASSIGNMENT REQUEST
I am requesting reassignment from my position as Props Crew to Props Sub effective
December 3, 2006. I am aware of and understand this change in employment status and
its effect on my employment relationship with Blue Man Vegas.
At some point between November 15 and 20, Ms. Prior telephoned Mr. Studer and
Mr. Pool. Although Ms. Prior told Mr. Pool why she was upset with the transfer-to-substitute
plan, there is no specific evidence as to what she said to the two managers. The conversation
apparently resulted in a determination that approval of the plan should be withdrawn. Ms. Prior
thought the situation was “muddled” because, in her words, “[W]e had said that something was

21 Ian Pool, production manager of the Respondent until early 2007, reported to Ms. Prior.
22 Barbara Hodgen was the Respondent’s company manager.
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okay and then we were going to change our minds.” The three agreed they would have to
“convene” on the issue when Ms. Prior returned to Las Vegas.
On the morning of November 20, a weekly human resources telephone conference call
was held among Mr. Poe, Ms. Rupp, Ms. Prior, Suzanne Wackamoto (BMP Human Resource
Director to whom Ms. Rupp reported), and Mr. Studer, who was included in the call since he had
been an integral part of Ms. Thorne’s transfer-to-substitute plan. Although the group discussed
the transfer-to-substitute issue “at length,” no specific evidence was provided as to what the
participants said regarding the plan. Some general information was proffered: During the call,
Ms. Prior asked to revisit Ms. Thorne’s request to transfer to a substitute position. Ms. Prior told
the conferees she thought it was in the company’s best interest to reverse the decision
regarding Ms. Thorne’s transfer because it contravened clear and necessary company policies,
i.e., the Holiday Moratorium and Leave of Absence policies. Although Ms. Prior testified she did
not “push” the conferring group or tell them the decision had to be reversed, she acknowledged
she was “upset” with the decision, and she agreed that if she had not “presented the facts which
were our policies,” the Respondent would have accepted Ms. Thorne’s transfer to a substitute
position. No other manager reported having a problem with the arrangement.23 After Ms. Prior
presented her objections, the group agreed to deny Ms. Thorne’s request to transfer. Following
the conference call, additional email communications were exchanged:
• Email C:
Sent November 20, 5:04 PM
Mr. Poe to Ms. Rupp and Ms. Prior
She will not be on our payroll after Dec 3 unless we use her at some point…which
may/may not happen.
• Email D:
Sent November 20, 9:15 PM
Ms. Rupp to Mr. Poe
Subject:RE: Apple
Since we do not grant LOAs longer than 12 weeks this is considered a resignation. She
could contact us when she returned. At that point she could reapply…and we could go
through the employment process with her if we so choose…I need to talk with Larry
[Levien, the Respondent’s attorney] to see how we explain the form she signed.24
We rarely have employees sign anything…In light of the union situation we need to be
very careful about our communication.
• Email E:
Sent November 21, 1:45 PM
Ms. Prior to Ms. Rupp
Subject: FW: Apple’s LOA request and forwarding Mr. Studer’s Email B to Ian Pool,
Ms. Prior and Mr. Poe

23 Mr. Poe testified that Ms. Prior was the only one to raise objections about the plan. Although
Ms. Prior testified that during the conference call Mr. Studer said that he did not think [the transfer] was a
good idea, I cannot accept her testimony in that regard, as it is inconsistent with her later testimony that
“nobody informed [her] that they had a problem with [Ms. Thorne becoming a Sub].”
24 Mr. Poe understood “the form” to refer to the reassignment request Ms. Thorne had signed.
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This is the last thing as Tom knows it. I still have to talk to Troy. Kori25
• Email F:
Sent November 21, 3:08 PM
Ms. Rupp to Ms. Prior
Re:Apple’s LOA request
This sounds like this is what Tom wanted. I’m so confused.
After receiving Ms. Rupp’s response (Email F), Ms. Prior telephoned her on the same
day. Ms. Prior did not relate the substance of her November 21 conversation with Ms. Rupp but
said the two agreed that Ms. Rupp would speak to Mr. Poe and Ms. Prior would speak to
Mr. Studer to make sure everyone was clear about the Respondent’s processes and how they
were going to move forward. Ms. Rupp did not testify regarding the exchange. Mr. Poe did not
testify about any follow-up conversation with Ms. Rupp, and Mr. Studer did not testify at all.
Mr. Poe thereafter sent the following email:
• Email G:
Sent November 21, 5:41 PM
Mr. Poe to Ms. Rupp and Suzanne Wakamoto
There was some discussion after our call regarding Apple. It has fallen to me to handle
the situation with her (no problem) but wish I would have known the circumstances
initially….
2. Refusal to Reemploy Marielle Thorne
or to Consider her for Reemployment
On November 21 without explanatory preamble, Mr. Poe informed Ms. Thorne that the
Respondent would not honor the previously agreed-upon transfer-to substitute arrangement and
that she would have to resign her Blue Man employment if she wanted to do the Troika tour.26
Ms. Thorne tendered her written resignation to the Respondent and began her employment with
Troika on December 4.
After his conversation with Ms. Thorne, Mr. Poe notified the managers involved of his
contact with Ms. Thorne:
• Email H:
Sent November 24, 9:37 PM
Mr. Poe to Adrian [Fisher, Managing Director of the Respondent], Ms. Rupp, Mr. Pool,
Ms. Prior, and Mr. Studer.
I talked to Apple today and explained that her employment will end when she leaves. She
understood and submitted a letter of resignation.

25 Ms. Prior agreed that she forwarded Mr. Studer’s November 14 email to Ms. Rupp on the day after
the conference call. Her explanation as to what prompted Email E was, if not incomprehensible, at least
unclear: Ms. Prior: Well, I was speaking specifically to process. I realize that it doesn’t necessarily
indicate that there, but [Ms. Rupp] and I had spoken on the conference call about generally—generally
about to make sure that—we have to make sure that this doesn’t happen again, meaning our
miscommunication on the issues like these, and so, I went back to make sure that there was no e-mail in
between, and essentially, Tom was being inconsistent between what he was telling me verbally and what
this e-mail said, so I was trying to clear that up with [Ms. Rupp].
26 Ms. Thorne agreed that Mr. Poe may have given her three options: continue her employment with
the Respondent, resign and go on the Troika tour, or limit her request to a 12-week leave of absence
during a period outside the holiday moratorium. In any event, Ms. Thorne could only undertake the Troika
tour if she resigned from the Respondent.
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She explained that she would like to work during the periods in which she is home from
the tour, if possible. I told her I did not know. She will be going to Tom to discuss that. I
presume that leaves it under the discretion of Tom/Kori whether or not to do that, as would
normally be the case.
On December 18, the Union filed an unfair labor practice charge with Region 28 alleging
the Respondent had violated Sections 8(a)(1) and (3) of the Act by discriminating against
Ms. Thorne.
Beginning on January 14 or 15, 2007, Ms. Thorne had a four-week break from the Troika
tour, which she spent in Las Vegas. Mr. Boesch had previously told Ms. Thorne he would like to
have her work when she was back in town, and a few days after January 14 or 15 Ms. Thorne
went to the Blue Man production area in the Venetian Hotel. As she visited with her former co-
workers, Mr. Boesch drew Ms. Thorne into the privacy of a stairwell and told her he had been
trying to bring her back into employment with Blue Man, but he had heard she had filed a
lawsuit against the company, and he would not be able to bring her back.27
The only evidence relating to the Respondent’s substitute hiring in mid-January 2007
was Mr. Boesch’s testimony that the Respondent had not hired a replacement for Ms. Thorne
and his observation: “We were constantly bringing in people. We had also brought in some new
subs to the department and…this was actually kind of an ongoing thing as far as scheduling
goes.”
D. Alleged Independent Violations of Section 8(a)(1) of the Act
1. Alleged Threat
On December 18, the Union filed an unfair labor practice charge with Region 28 alleging
the Respondent had violated Sections 8(a)(1) and (3) of the Act by discriminating against
Ms. Thorne. As detailed above, in mid January 2007 Mr. Boesch told Ms. Thorne he would not
be able to reemploy her at the Respondent, as she had filed a lawsuit against the company.
2. Alleged Maintenance of Unlawful Employee Handbook Provisions
The Respondent maintains and issues to employees an employee handbook entitled
Blue Man Group Company Member Handbook, the last revision of which was effected August 1.
The following provisions are in issue:
CONFIDENTIALITY [at pages 28-29]
While employed by BMG, company members may have access to, receive, and/or
develop information that is confidential and proprietary in nature. This confidential

27 Mr. Boesch, although no longer employed by the Respondent, was called as a witness by the
Respondent. He testified that he absolutely did not tell Ms. Thorne she could not return to the
Respondent after filing a charge against the company. However, the substance of his testimony suggests
otherwise:
Mr. Boesch: I wanted to find out [if] she’d actually filed a suit or a wrongful dismissal, you know,
charge against Blue Man…because up until that point…I had every intention of actually having her
come back to work with me.
…
Mr. Boesch: Up until that point I had every intention of bringing her back if it was possible, if there was
work available and I was really surprised when I had learned that there were, in fact, charges
pending.
Mr. Boesch’s testimony corroborates Ms. Thorne’s account, and I credit her testimony.
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information includes customer lists, price data and price lists, group sales information,
trade secrets, financial and strategic information, operations and manuals, personnel
data, records, pay rates, personnel corrective action or performance information, and
computer programs. BMG requires company members to refrain from sharing
confidential information with other company members or with anyone not employed by
BMG. Occasionally, there are exceptions made regarding this confidentiality policy,
including sharing information with other productions regarding Group Sales; BMG
reserves the right to decide when these exceptions are made.
Except to the extent consistent with a company member’s employment by BMG, s/he
may not at any time, whether during his/her employment or after the termination of
his/her employment with BMG, permit any person to examine or make copies of any
documents which may contain or be derived from confidential information.
It is very important for all of us to recognize much of the information learned about our
fellow company members (e.g., performance evaluations, salary information, and
corrective actions) should be kept confidential between the Company and the particular
company member. This is especially applicable to those who are in a supervisory or
managerial capacity and who have access to this kind of information regularly. Please
respect the concerns of each company member regarding any information which should
remain private, and as a courtesy to other company members refrain from engaging in
discussions about such information.
If a company member is unsure whether or not information is confidential in nature, s/he
should ask a supervisor, the HR representative, or company management. Failure to
comply with this policy may result in corrective action up to and including termination.
NO SOLICITATION/NO DISTRIBUTION POLICY [page 33]
In the interest of maintaining a professional environment and to prevent interference with
work and/or inconvenience to others, company members may not distribute literature or
printed materials of any kind, sell merchandise, solicit financial contributions, or solicit for
any other cause during working time or non-working time in areas where it will disturb
other company member who are working, or in any performance areas open to the public.
The Respondent defined “performance areas” as locations the public has access to: the
Respondent’s lobby, restrooms, retail store (the Blue Man Store), elevator area, and the theater
itself, where employees occasionally spent break time when no performance was going on.
PRESS EVENTS/OPPORTUNITIES [page 33]
It is important to BMG that all matters regarding the media be coordinated through a
central contact; therefore, all inquiries from the press, reviewers, or other media
representatives must be referred to the local marketing representative or to the Managing
Director. No one should respond to inquiries from media representatives in any other
fashion.
No one should initiate contact with media representatives with respect to BMG.
Furthermore, company members may not use, authorize the use of, or make any
reference to the name or images of BMG, the name BMP, any variation of those names, or
any comparable or similar names that would tend to cause confusion, in connection with
any matter not directly connected with BMG, without the prior approval of the local
marketing representative or the Managing Director.
BMG must be allowed to decide when, where, and how BMG is represented. Any
connection to BMG in the press, or any participation of a company member in a non-BMG
event, wherein the company member is listed/noted as a member of BMG, must be
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approved by the Managing Director or the local marketing representative at least four
weeks in advance. This includes workshops, sponsorships, any publicity/press for gigs, or
any public statements, verbal or written, made to the press under the auspices of BMG.
Please note this does not include mentioning BMG as a current or previous employer in an
individual biography for programs/playbills or on a resume.
V. Discussion
A. Violations of Section 8(a)(5) and (1) of the Act:
Unilateral Changes and Refusal to Furnish Information
In mid September, Respondent unilaterally announced and implemented a $1.00 pay
raise for unit employees. On October 9, 2006, the Respondent unilaterally changed its
compensation policy of Short Turnaround Pay Premium (Pay Premium Policy).
Since April 25, 2007, the date of the Union’s request, the Respondent has refused to
provide the Union with the following information, all of which is presumptively relevant to the
Respondent’s unit employees: personnel information, breakdown of benefits, wage rates and
history by employee classification, copies of all employee benefit plans along with cost
breakdown, actuarial reports and asset description of any retirement plan, paid time-off
information, copies of evaluations and merit pay increases, copies of disciplinary actions within
the last two years, information about the current workers’ compensation carrier, information
about safety training and procedures, breakdown of current staffing patterns and work
schedules, copies of dress code, drug/alcohol, and leaves of absence policies with usage
details for the latter policies, and copies of employee equipment complaints along with
complaint actions taken by the Respondent.
In its post-hearing brief, the Respondent did not defend its above-described unilateral
changes or its refusal to furnish the information requested by the Union, merely stating that as a
result of the Court decision, the Respondent has recognized the Union as the collective
bargaining representative of its stage crew employees and has begun to respond to the Union’s
April 25, 2007 information request. There being no basis for finding that the Respondent’s
unilateral changes and its failure to provide information were lawful, I find the Respondent
violated Section 8(a)(5) and (1) of the Act by instituting the above-described unilateral changes
in terms and conditions of employment and by failing and refusing to furnish the Union with the
information outlined above.
B. Violations of Sections 8(a)(3), (4) and (1) of the Act
1. Denial to Marielle Thorne of Opportunity
to Work as Substitute Employee
The question of whether the Respondent violated the Act by withdrawing its approval of
Ms. Thorne’s transfer-to-substitute plan rests on its motivation. The Board established an
analytical framework for deciding cases turning on employer motivation in Wright Line.28 To
prove an employee was discharged in violation of Section 8(a)(3), the General Counsel must
first persuade, by a preponderance of the evidence, that an employee’s protected conduct was
a motivating factor in the employer’s decision. If the General Counsel is able to make such a

28 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
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showing, the burden of persuasion shifts “to the employer to demonstrate that the same action
would have taken place even in the absence of the protected conduct.” Wright Line, supra at
1089; United Rentals, Inc., 350 NLRB No. 76 (2007); Donaldson Bros, Ready Mix, Inc., 341
NLRB 958, 961 (2004).
The elements of discriminatory motivation are union activity, employer knowledge, and
employer animus. Verizon and Its Subsidiary Telesector Resources, 350 NLRB No. 53 (2007);
Group Farmer Bros. Co., 303 NLRB 638, 649 (1991). The General Counsel has established all
three elements in the instant matter. Ms. Thorne openly championed the Union’s organizational
drive, and Ms. Prior, who was pivotal in the Respondent’s ultimate disapproval of Ms. Thorne’s
transfer-to-substitute plan, knew she did. Finally, Ms. Prior revealed union animus when she
warned adverse consequences would follow unionization by asking employees at a pre-union
election meeting, “Why would I want to work with you if you went union?”29
Ms. Prior posed her May 23 question during a discussion of rigid application of
prospective union contract terms versus existing managerial flexibility. The reasonable
inference to be drawn from Ms. Prior’s words is that she would curtail erstwhile managerial
magnanimity toward individual employees if employees selected the Union. Shortly thereafter,
the employees did just that. While Ms. Prior’s expressed animosity predated the Respondent’s
final action on Ms. Thorne’s transfer-to-substitute plan by six months, there is no evidence
Ms. Prior’s antagonism subsided. Although the Union had won the May 25 election, the union
representation issue was very much alive at Blue Man. The Respondent had refused to bargain
with the Union and was in the process of challenging the Board’s certification of the Union. As
indicated by its January 30, 2007 memorandum to employees, the Respondent actively hoped a
new election would be directed. In the absence of ameliorative evidence, it is reasonable to
conclude that Ms. Prior’s disinclination to “work with” employees who selected the Union
continued unabated and that her animosity could motivate a refusal to interpret or modify
company rules for the benefit of a represented employee. Of the Respondent’s managers,
Ms. Prior alone raised objections to the already approved transfer-to-substitute plan, and she
alone persuaded other managers to reject it. Accordingly, the Wright Line analysis must focus
on Ms. Prior’s motivation.
Ms. Prior’s explanation for her opposition to the transfer-to substitute plan is that the plan
put the company in a situation where Ms. Thorne was dictating her work availability and
schedule. Such is a hyperbolic assessment of the plan if not a deliberately inaccurate one. The
plan called for Ms. Thorne to notify the Respondent of her Troika break schedule, but it was
entirely up to the department heads whether or not they would call her in to work at all during
the breaks. Such an arrangement cannot reasonably be called a dictation of availability and
schedule, and Ms. Prior’s opposition to the plan reasonably supports an inference that she
intended to apply company rules inflexibly. Of itself, such intent is not unlawful; the Board does
not second-guess an employer’s business decisions. But the Board is charged with determining
whether business decisions are motivated by union animus. See Real Foods Company, 350
NLRB No. 32 (2007). During the union campaign, Ms. Prior had threatened managerial
inflexibility if employees selected the Union, and, by overthrowing the transfer-to-substitute plan,
she delivered inflexibility. Ms. Prior’s justification for obstructing the plan (i.e. curbing employee
autonomy) parallels her earlier threat that managerial responsiveness to individual employee

29 Although Ms. Prior’s threat occurred outside the Section 10(b) period, it can be considered as
background evidence of animus towards union activity. See Wilmington Fabricator, Inc., 332 NLRB 57, 60
fn. 6 (2000), and Kaumograph Corp., 316 NLRB 793, 794 (1995).
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problems would cease upon their selection of the Union. Overall, the circumstances
surrounding the plan’s demise provide a perceptible nexus between Ms. Prior’s union animosity
and her opposition to the plan.30
The Respondent argues that its overall benign treatment of known employee union
members and supporters and the lack of specific animosity toward Ms. Thorne must vitiate the
impact of any bygone animosity. In the absence of acknowledgment and correction of
expressed animosity, however, the animosity must necessarily form the context for correlative
adverse action. As Ms. Prior’s expressed animosity closely correlates to her overthrow of the
transfer-to-substitute plan, I find the General Counsel has met his initial burden by “making a
showing sufficient to support the inference” that Ms. Thorne’s union support or the combined
union support of a majority of unit employees, was a motivating factor in Ms. Prior’s successful
opposition to the transfer-to-substitute plan.31 The burden of persuasion therefore shifts to the
Respondent to show it would have taken the same action even if Ms. Thorne had not been an
open supporter of the Union and/or if the Respondent’s employees had not selected the Union
as their collective-bargaining representative.
The Respondent maintains that two provisions of the Employee Handbook prohibited the
transfer-to-Substitute plan: (1) the Holiday Season Moratorium, which required all employees to
be available during holidays and (2) the Substitute provision, which required substitutes to work
an unspecified minimum number of shows per week. The Respondent contends that Mr. Studer
and Mr. Poe erred in devising and approving the transfer-to-substitute plan and that by later
correcting their error, Ms. Prior reasonably applied the Employee Handbook provisions.
Irrespective of Ms. Thorne or any other employee’s union activity, the Respondent asserts,
Ms. Prior would justifiably have taken whatever steps were necessary to ensure that valid
Employee Handbook provisions were observed.
No one disputes that the transfer-to-substitute plan devised for Ms. Thorne went beyond
the parameters established by the Holiday Moratorium and the Substitute provisions. Although
the Respondent apparently waived the Holiday Moratorium provision in 2006-2007 for substitute
employee, Mr. Lex, who took the 2006-2007 New Year Holiday off, there is no evidence the
Respondent regularly disregarded the rules. However, the Respondent does not meet its
shifted burden merely by showing that it possessed a legitimate reason for declining to proceed
with the transfer-to-substitute plan. The Respondent must show that Ms. Prior would have
scotched the plan even if Ms. Thorne were not an open union supporter or even if employees
had not selected the Union to represent them. See Tower Industries, 349 NLRB No. 117 Slip
Op. 4 (2007).
Emails exchanged by the Respondent’s managers regarding Ms. Thorne’s situation
show that as of November 14, Mr. Studer, Mr. Poe, and Ms. Rupp had fully agreed to the
transfer-to-substitute plan. Only Ms. Prior was “upset” with the plan. During the November 20

30 Although causal nexus between union animus and adverse employment action is not an
evidentiary burden of proof element under Wright Line, the Board and the circuit courts of appeal have
sometimes added it as an independent fourth element. Frye Electric, Inc., 352 NLRB No. 53 FN 2 (2008).
In light of my conclusion regarding Ms. Prior’s animus, it is unnecessary to consider the General
Counsel’s additional theory that by refusing to transfer Ms. Thorne to a substitute position, the
Respondent hoped to reduce its pool of prounion employees in the case of a court-ordered second
election.
31 See Wright Line at 1089. In light of my finding that the Respondent demonstrated union animus in
its dealings with Ms. Thorne, I find it unnecessary to address Counsel for the General Counsel’s
argument that the Respondent’s handbook provisions, bargaining stance, and refusal to consider
Ms. Thorne for reemployment also evidence animus.
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telephone conference among Mr. Poe, Ms. Rupp, Ms. Prior, Suzanne Wackamoto, and
Mr. Studer, Ms. Prior asked to revisit the issue, telling the other conferees that she thought it
was in the company’s best interest to reverse the transfer decision. Ms. Prior testified she did
not “push” a decision during the conference call and only presented the facts and reviewed the
Respondent’s policies with the group, but there is no specific evidence of the group’s
discussion, even though their consideration of the transfer-to-substitute plan continued, in
Ms. Prior’s words, “at length.” The gap in evidence is further emphasized by Mr. Poe’s
November 21 email to Ms. Rupp and Suzanne Wakamoto (Email G), in which Mr. Poe states:
“[I] wish I would have known the circumstances [behind the transfer-to-substitute plan] initially.”
The record fails to detail either the substance of the conference call discussion or the
“circumstances” to which Mr. Poe was not initially privy.
Adding to the vagueness of what transpired in the conference call was a post-
conference exchange of emails between Ms. Prior and Ms. Rupp. Ms. Prior forwarded to
Ms. Rupp Mr. Studer’s November 14 email (Email B) in which Mr. Studer outlined the approved
transfer-to-substitute plan. Upon receipt of that information, Ms. Rupp responded with an
implied query (Email F): “This sounds like this is what [Mr. Studer] wanted. I’m so confused.”
Ms. Rupp’s email indicates that Ms. Rupp, at least, had not been aware Mr. Studer had
approved the transfer-to-substitute plan and that the preceding conference call discussion was
not as simple or straightforward as Ms. Prior’s abbreviated testimony of it suggested. If
Ms. Rupp’s confusion was allayed by Ms. Prior’s ensuing telephone conversation with her, the
clarification did not, unfortunately, extend to the record. Ms. Prior failed to recount any specifics
of the conversation, and the record remains devoid of evidence as to managerial discussions
that might have explicated the reasoning behind the Respondent’s withdrawal of plan approval.
In its post-hearing brief, the Respondent acknowledges that its response to Ms. Thorne’s
approved transfer-to-substitute request was “muddled and awkward” and that the company's
“communication with Ms. Thorne throughout this process was poorly managed.” The
Respondent points out that its muddled, awkward, and poor management of the matter “does
not demonstrate anti-union motivation.” That is true, and I have not considered the
Respondent’s enigmatic handling of the situation as evidence of animus. However, the burden
of persuasion has shifted from the General Counsel to the Respondent, and I must examine the
evidence to determine whether or not the Respondent’s proffered explanations support the
Respondent’s contention that “numerous significant business justifications” compelled its denial
of Ms. Thorne’s request to transfer.
In the absence of clear and specific evidence of the concerns or arguments Ms. Prior
presented to management in opposing the transfer-to-substitute plan, it is difficult, if not
impossible, to weigh or balance the factors the Respondent’s managers relied on in withdrawing
approval of the plan. It is likewise impossible to find that the Respondent has demonstrated it
would have taken the same action even in the absence of Ms. Thorne’s or the employees’ union
advocacy. Since the Respondent’s defense evidence is equivocal at best, it is insufficient to
satisfy the Respondent's evidentiary burden. The Respondent having failed to meet its shifted
burden of proof, the evidence shows that the Respondent violated Section 8(a)(3) and (1) of the
Act by denying Ms. Thorne the opportunity to work as a substitute employee.
2. Refusal to Employ Marielle Thorne
About a month before Ms. Thorne’s four-week Troika tour break began in mid-January
2007, the Union filed an unfair labor practice charge alleging the Respondent had unlawfully
denied substitute work to Ms. Thorne. Having previously told Blue Man managers she hoped
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the company would reemploy her during the break, Ms. Thorne went to the Blue Man theater
area in the Venetian Hotel at the beginning of it. During her visit, Mr. Boesch told her he had
been trying to bring her back into employment with Blue Man, but he had heard she had filed a
lawsuit against the company, and he would not be able to.
Section 8(a)(3) of the Act provides, in relevant part, that it is “an unfair labor practice for
an employer by discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.” Section
8(a)(4) of the Act provides that it is an unfair labor practice for an employer “to discharge or
otherwise discriminate against an employee because he has filed charges or given testimony
under this Act.” Conduct violating either or both of these provisions discourages employees'
Section 7 rights and derivatively violates Section 8(a)(1) of the Act.
Whether Mr. Boesch’s conduct constituted a discriminatory refusal either to employ
Ms. Thorne or to consider Ms. Thorne for employment in violation of Section 8(a)(3) and (4) of
the Act depends on the outcome of the analysis set forth in FES.32
Regarding discriminatory refusals to hire, under the analytic framework in FES the
General Counsel must show: (1) that the Respondent was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; (2) that the applicants had experience or training
relevant to the positions available for hire, and (3) that antiunion animus contributed to the
decision not to hire the applicants.33
The General Counsel has met his burden of proof as to elements two and three of the
FES analysis, i.e., the qualifications of Ms. Thorne and the Respondent’s animus toward her
exercise of her rights protected under the Act. Whether the General Counsel has proven the
first element in the FES refusal-to-hire analysis is a more difficult question.
As its first element, FES requires the General Counsel to show the Respondent was
hiring or had concrete plans to hire substitutes for work Ms. Thorne was qualified to perform at
the time Ms. Thorne was available during her Troika break. The General Counsel must prove
this FES element at the hearing; the proof cannot be deferred to the compliance stage.34 While
it does not follow that the proof must consist of evidence that a substitute employee who met
Ms. Thorne’s employment constraints was actually hired during the relevant time, the evidence
must show that such an opening was at least available or that a concrete plan existed to create
one.
The Respondent argues that the General Counsel has not shown Ms. Thorne applied for
employment during the relevant time period. The evidence shows Ms. Thorne intended to seek
Blue Man employment during her Troika breaks, and the Respondent’s managers, notably
Mr. Boesch, knew it. In fact, Mr. Boesch repeatedly told Ms. Thorne he hoped to reemploy her.
By informing Ms. Thorne that he would not reemploy her because she had filed a lawsuit

32 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). I have
considered both the 8(a)(3) and (4) allegations under an FES analysis, as Ms. Thorne’s protected activity
is protected by an overlap of the two sections. By cooperating with the Union’s unfair labor practice
charge, Ms. Thorne both engaged in union activities as covered by Section 8(a)(3) and gave testimony as
contemplated by Section 8(a)(4). See also Toering Electric Company, 351 NLRB No. 18, FN 18 (2007)
(8(a)(3) antidiscrimination protection logically consistent and coextensive with the express protections
provided in 8(a)(4)). The same evidence supports both the 8(a)(3) and 8(a)(4) allegations and same
remedy applies.
33 FES, at 12.
34 See Sproule Construction Company, 350 NLRB No. 65 slip op. 2 (2007); FES at 14.
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against the company, Mr. Boesch preempted any application she might have made. The Board
does not require an individual to perform a futile act.35 Therefore, Ms. Thorne’s failure to make
formal application for a specific position does not abrogate the General Counsel’s prima facie
case.
The Respondent also argues the General Counsel has not shown the Respondent was
hiring in relevant substitute positions or had concrete plans to do so at the time of Ms. Thorne’s
Troika break. Mr. Boesch provided the only evidence of substitute hiring at the time of the
break, testifying the Respondent was “constantly bringing in people. [The Respondent] had also
brought in some new subs to the department [which] was actually…an ongoing thing as far as
scheduling goes.” Mr. Boesch’s testimony provides evidence of general ongoing, albeit
unstructured, contemporaneous substitute employee hiring.36 His testimony does not, however,
provide evidence that an opening for a temporary, short-term (i.e. four-week or less) substitute
position was available during the four-week period commencing mid-January 2007. Mr. Boesch
hoped to employ Ms. Thorne during her four-week Troika break, “if it was possible [and] if there
was work available,” but his expressed “hope” suggests his plan was merely tentative if not
speculative and for fruition depended on something beyond his wishes, The General Counsel
bears the burden of showing the Respondent was hiring or had concrete plans to hire for the
type of short-term substitute position for which Ms. Thorne was available. There is no evidence
of such an opening during the relevant period, and Mr. Boesch’s hope of employing Ms. Thorne
cannot be described as a concrete plan. The General Counsel has not, therefore, met his
burden, and I shall dismiss the complaint allegations relating to the Respondent’s refusal to
employ Ms. Thorne on January 19, 2007.
3. Refusal to Consider Marielle Thorne for Employment
The FES analysis regarding discriminatory refusals to consider for hire differs somewhat
from the refusal-to-hire analysis, and a discriminatory refusal to consider may violate the Act
even when no hiring is occurring.37 In order to establish a discriminatory refusal to consider
under FES, the General Counsel bears the burden of showing (1) that the respondent excluded
the applicant from a hiring process; and (2) that antiunion animus contributed to the decision not
to consider the applicant for employment. Once this is established, the burden will shift to the
respondent to show that it would not have considered the applicant even in the absence of
union activity or affiliation.38
The first element in the refusal-to-consider analysis requires the General Counsel to
show the Respondent excluded Ms. Thorne from a hiring process in effect at the time of her
four-week Troika break. The Respondent argues that no hiring process existed at the time.
Although no details have been provided, Mr. Boesch’s testimony demonstrates that some

35 Abilities and Goodwill, Inc., 241 NLRB 27 (1979).
36 Although the Respondent, citing to transcript pages 174-75 in its post-hearing brief, states that
Mr. Boesch testified his department had full coverage at that time and did not need additional employees,
a review of the transcript shows no such testimony. The closest Mr. Boesch came to claiming full
employee coverage was at transcript page 176: “[N]umerous departments were…sharing subs. So, at
the time obviously we were able to carry on with the day-to-day functions because [Ms. Thorne] didn’t, in
fact…come back.” Mr. Boesch’s testimony that the Respondent made do with existing employee
resources provides no basis for concluding the Respondent had a full complement of employees in
January 2007.
37 FES at 15. See also Suburban Electrical Engineers/Contractors, Inc., 351 NLRB No. 1, slip op. 5-6
(2007).
38 FES at 15.
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description of hiring process existed when Ms. Thorne began her four-week Troika break, as the
Respondent was “constantly bringing in people.” Mr. Boesch intended to use the process to
reemploy Ms. Thorne during her breaks. Mr. Boesch ceased to consider Ms. Thorne for
reemployment or to make efforts to secure her reemployment when he learned of her inclusion
in the Union’s unfair labor practice charge, informing her that since she had filed a lawsuit
against the company, he would not be able to reemploy her. Mr. Boesch thereby excluded
Ms. Thorne from any hiring process because she had exercised her protected rights under the
Act. The General Counsel having established both applicant exclusion from a hiring process
and animus, the burden shifts to the Respondent to show it would not have considered
employing Ms. Thorne even in the absence of her protected activity.
The Respondent defends against the failure to consider allegations by arguing that
Ms. Thorne was not eligible to work as either a substitute or full-time employee because of her
limited availability. Although the period of Ms. Thorne’s proposed employment term was limited
to four weeks, given Mr. Boesch’s description of the company’s hiring fluidity, it cannot be
presumed the Respondent would decline to extend employment for that reason. No evidence
was adduced to show the Respondent never hired substitutes for short-term employment. The
burden of showing that Ms. Thorne would not have been employed for a four-week period in any
circumstances is the Respondent’s, and the Respondent has failed to carry that burden.39
Accordingly, the evidence establishes that by refusing to consider Ms. Thorne for employment
during her four-week Troika break in mid-January 2007 because she was the subject of a union-
filed unfair labor practice charge, the Respondent violated Sections 8(a)(3), (4) and (1) of the
Act.
C. Independent Violations of Section 8(a)(1) of the Act
1. Threat of Refusal to Hire
In mid January 2007 Mr. Boesch told Ms. Thorne he would not be able to reemploy her
at the Respondent, as he had heard she had filed a lawsuit against the company. Mr. Boesch’s
statement constitutes a threat not to hire individuals who participate in the Board’s processes,
which violates Section 8(a)(1) of the Act. See Eastern Energy Services, LLC, 349 NLRB No. 53
(2007).
2. Maintenance and Promulgation of Employee Handbook Provisions
a. Confidentiality Provision
Under the Confidentiality provision of its handbook the Respondent prohibits its
employees from discussing their salary, pay rates, and performance evaluations. Specifically,
the Confidentiality provision handbook reads, in pertinent part:

39 Ironically, the absence of specific hiring practice evidence, which defeats the complaint allegation
regarding the Respondent’s refusal to employ Ms. Thorne, also subverts the Respondent’s defense of the
alleged refusal to consider Ms. Thorne for employment.
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While employed by BMG, company members may have access to, receive,
and/or develop information that is confidential and proprietary in nature. This
confidential information includes . . . pay rates, personnel corrective action or
performance information . . . BMG requires company members to refrain from
sharing confidential information with other company members or with anyone not
employed by BMG. . . .
[I]nformation learned about our fellow company members (e.g., performance
evaluations, salary information, and corrective actions) should be kept
confidential between the Company and the particular company member. . . .
Please…refrain from engaging in discussions about such information. . . . Failure
to comply with this policy may result in corrective action up to and including
termination.
The Respondent contends that the Confidentiality provision is, at worst, ambiguous as to
whether Section 7 rights are implicated by the policy. Even if the policy is deemed to prohibit
protected conduct, the Respondent argues that it has demonstrated a substantial and legitimate
basis for any infringements on employee rights, which business justifications outweigh minimal
interference with employee rights.
The Board, in considering similar language in The NLS Group, 352 NLRB No. 89 Slip
Op. 3 (2008), applied the Lutheran Heritage Village-Livonia40 standard for determining whether
an employer's maintenance of a work rule violates Section 8(a)(1). If the rule explicitly restricts
Section 7 activity, it is unlawful. If the rule does not explicitly restrict Section 7 activity, it is
nonetheless unlawful if (1) employees would reasonably construe the language of the rule to
prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7 rights. In applying these principles, the
Board refrains from reading particular phrases in isolation, and it does not presume improper
interference with employee rights. The Board determined that the NLS Group confidentiality
provision was unlawful because employees reasonably would construe it to prohibit activity
protected by Section 7.
The same result applies here. Although the Respondent contends the Confidentiality
Provision speaks only to proprietary information and not personnel information protected by
Section 7, the language of the provision unambiguously prohibits employees from discussing
pay rates, personnel corrective action (discipline) or performance evaluations with other
company members or anyone not employed by the Respondent upon pain of discipline
including termination. Employees would reasonably understand the language of the
Confidentiality Provision as prohibiting discussions of compensation, discipline or evaluations
with each other and with union representatives.41
The Respondent argues that the competitive and creative business environment in
which it operates provides a sufficient business justification for its confidentiality restrictions.
However, the Respondent has not shown why it cannot adequately protect proprietary
information without infringing on employees’ Section 7 right to discuss terms and conditions of

40 343 NLRB 646 (2004).
41 Employees have a protected right to discuss among themselves and with their union
representative the terms and conditions of their employment. Infringement of that right violates the Act.
Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004).
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employment with each other and/or with union representatives. Accordingly, the Respondent’s
prohibition of employee discussion of pay rates, discipline, or performance evaluations with
other employees or with anyone not employed by the Respondent violates Section 8(a)(1) of the
Act.
b. No Solicitation/No Distribution Policy
The solicitation and distribution provision of the Respondent’s handbook prohibits
employees from distributing materials or soliciting fellow employees “during working time or non-
working time in areas where it will disturb other company members who are working, or in any
performance areas open to the public.” Performance areas, as defined by the Respondent, are
the lobby, restrooms, retail store (the Blue Man Store), elevator area, and the theater itself.
An employer has a right to impose some restrictions on employees' statutory right to
engage in union solicitation and distribution. Such restrictions, however, must be clearly limited
in scope so as not to interfere with employees' right to solicit their coworkers on their own time
or to distribute literature on their own time in non-work areas. Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945): Our Way, Inc., 268 NLRB 394 (1983).
The Board addressed a rule comparable to the Respondent’s no solicitation/no
distribution provision in Crowne Plaza Hotel42 and concluded that to the extent the rule
prohibited off-duty employee solicitation and distribution in customer and public areas, it was
unlawfully overbroad. The no solicitation/no distribution provision herein is likewise overbroad.
While the Respondent may prohibit active solicitation/distribution in the sales area of the Blue
Man Store even during employee nonwork time because it might disrupt the store's business,43
the Respondent may not maintain a general ban on protected activity in areas “where it will
disturb other company members who are working” or “in any performance areas open to the
public.” As to the former restriction, it might reasonably be read to restrict lawful activity in any
circumstances where employees who are working might hear or observe the activity even if the
activity took place in customary break areas or areas utilized by employees for both work and
nonwork activity. As to the latter restriction, “performance areas open to the public” is a broadly
encompassing description which, as testimony demonstrated, includes even those areas which,
during nonperformance times, may be used by nonworking employees. As such, it is
overbroad. See Santa Fe Hotel & Casino, 331 NLRB 723, 729 (2000); Flamingo Hilton-
Laughlin, 330 NLRB 287, 288 (1999)
The Respondent’s valid wish to maximize audience enjoyment of the Blue Man’s unique
multi-sensory theatrical experience does not entitle it to prohibit protected activity in nonwork
areas because the activity might “disturb” working employees or to designate nearly all public
areas as “performance areas” in which off-duty employees cannot exercise their Section 7 rights
under any circumstances, including when audience members are not present. Accordingly, the
Respondent’s prohibition of employee solicitation/distribution during non-working time in areas
where it will disturb other company members who are working, or in any performance areas
open to the public violates Section 8(a)(1) of the Act.
c. Press Events/Opportunities
In pertinent part, the Press Events/Opportunities provision of the Respondent’s
handbook prohibits employees from contacting the media:

42 352 NLRB No. 55 (2008).
43 See J.C. Penney Co., 266 NLRB 1223 (1983); Marshall Field & Co., 98 NLRB 88 (1952).
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[A]ll inquiries from the press, reviewers, or other media representatives must be
referred to the local Marketing Representative or to the Resident General
Manager. No one should respond to inquiries from media representatives in any
other fashion.
No one should initiate contact with media representatives with respect to BMG.
Any connection to BMG in the press, or any participation of a company member in
a non-BMG event, wherein the company member is listed/noted as a member of
BMG, must be approved by the Managing Director or the local marketing
representative at least four weeks in advance.
The Respondent’s stated purpose behind the Press Events/Opportunities provision is to
coordinate Blue Man media reports through a central management contact in order to control
“when, where, and how Blue Man Group is represented.” That is a legitimate interest.
However, the restrictions are broad enough to encompass media coverage of a labor walk-out
or strike, an employee rally, or other protected union or employee activity. “A rule that prohibits
employees from exercising their Section 7 right to communicate with the media regarding a
labor dispute is unlawful.” Crowne Plaza Hotel, supra. The Board instructs that the critical
inquiry into employer rules regarding employee media contact is “whether the rule prohibits
employees from communicating with the news media about [protected matters] or merely states
that employees cannot speak on behalf of the Respondent in response to media inquiries about
such matters.”
The Respondent’s Press Events/Opportunities provision unqualifiedly restricts all
employee communications with the media in all circumstances. No reasonable construction of
the language can be made to support the Respondent’s argument that the provision clearly
applies only to statements to the media purporting to be on behalf of the Respondent. The
reasonable interpretation of the provision is that it includes Section 7 activity in its broad
prohibition. Although the Respondent has a substantial legitimate business interest in seeing
that media coverage of its popular and unique theatrical presentation is uniformly positive, that
interest cannot outweigh employees’ Section 7 right to address labor dispute or other protected,
concerted issues with the media. The Press Events/Opportunities provision is facially
overbroad, and the Respondent’s maintenance of it violates Section 8(a)(1) of the Act. See Ibid.
Conclusions of Law
1. Blue Man Vegas, LLC (the Respondent) is and has been at all times material an employer
engaged in commerce and in a business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists
and Allied Crafts of the United States and its Territories and Canada, Local 720, AFL-CIO
(the Union) is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
(a) Maintaining the following work rules that restrain and coerce employees in the exercise of
their Section 7 rights: the Confidentiality rule, the Solicitation and Distribution Rule, and the
Press Events/Opportunities rule.
(b) Threatening an employee that the employee was denied work opportunities because the
employee engaged in union activities and because the Union had filed charges concerning
the employee with the Board.
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4. The Respondent violated Section 8(a)(3) and (1) by denying employee Marielle Thorne the
opportunity to work as a substitute employee because of her union activities and the union
activities of other employees.
5. The Respondent violated Section 8(a)(3), (4), and (1) by refusing to consider employee
Marielle Thorne for employment because of her union activities and because she was the
subject of an unfair labor charge filed by the Union with the Board.
6. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally announcing and
granting a $1.00 wage increase to certain Unit employees and by unilaterally changing its
compensation policy of Short Turnaround Pay Premium for Unit employees.
7. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish
the Union with information requested by the Union that is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collective-bargaining representative of the
Unit.
8. The unfair labor practices set forth above affect commerce within the meaning of Sections
8(a)(1), (3), (4) and (5) and Sections 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully denied employee Marielle Thorne the opportunity to
transfer to a position as a substitute employee on November 21, 2006, it must offer her
immediate and full instatement to the position of substitute employee insofar as it has not
already done so, or, if that position no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privileges that would exist but for its
unlawful actions and make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from the date of denial of opportunity to date of proper offer of instatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
In light of the above instatement and backpay order for Ms. Thorne, it is unnecessary to
order further remedy for the Respondent’s January 2007 failure to consider Ms. Thorne for
employment, as the latter remedy is subsumed by the broader former remedy. See Dial One
Hoosier Heating & Air Conditioning, 351 NLRB No. 48, FN 20 (2007), citing Jobsite Staffing, 340
NLRB 332, 333 (2003).44
The recommended Order will also provide that Respondent bargain in good faith with the
Union as the exclusive collective bargaining representative of the following unit:
All full-time and regular part-time stagehands and wardrobe employees,
excluding all other employees, office-clerical employees, guards and supervisors
as defined in the Act.

44 The customary refusal-to-consider remedy consists of: A cease and desist order; an order
to place the discriminatee in the position she would have been in, absent discrimination, for
consideration for future openings and to consider her for openings in accordance with
nondiscriminatory criteria; and an order to notify the discriminatee, the charging party, and the
Regional Director of future openings in positions for which the discriminatee applied or
substantially equivalent positions.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended45
ORDER
The Respondent, Blue Man Vegas, LLC, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining those portions of the following work rules that restrain and coerce employees
in the exercise of their Section 7 rights: the Confidentiality rule, the Solicitation and
Distribution Rule, and the Press Events/Opportunities rule.
(b) Threatening any employee with denial of work opportunities for engaging in union
activities and because the Union filed charges with the Board.
(c) Denying any employee the opportunity to work as a substitute employee because of
union activities and/or the union activities of other employees.
(d) Refusing to consider employees for employment because of union activities and because
they were the subject of an unfair labor charge filed by the Union with the Board.
(e) Failing and refusing to bargain in good faith with International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States
and its Territories and Canada, Local 720, AFL-CIO, as the collective bargaining
representative of its employees in the above unit by unilaterally announcing and granting
a $1.00 wage increase to certain Unit employees, by unilaterally changing its
compensation policy of Short Turnaround Pay Premium for Unit employees, and by failing
and refusing to furnish the Union with the information requested by the Union in its letter
dated April 25, 2007 that is necessary for, and relevant to, the Union’s performance of its
duties as the exclusive collective-bargaining representative of the Unit.
(f) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the United States and its
Territories and Canada, Local 720, AFL-CIO as the exclusive representative of
the employees in the above unit concerning terms and conditions of employment
and if requested by the Union (1) rescind the unilateral $1.00 wage increase paid
to certain Unit employees, (2) rescind the unilateral change of compensation
policy of Short Turnaround Pay Premium for unit employees.
(b) Make employees whole, with interest, for any loss of earnings or benefits suffered
as a result of the unilateral changes described in subparagraph (a).

45 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(c) Rescind from the Employee Handbook those portions of the Confidentiality rule,
the Solicitation and Distribution Rule, and the Press Events/Opportunities rule
found to be unlawful and inform employees in writing that such portions of the
rules are no longer in force or effect.
(d) Furnish the Union with the information requested by the Union in its letter dated
April 25, 2007.
(e) Within 14 days from the date of this Order, insofar as it has not already done so, offer
employment to Marielle Thorne as a substitute employee, or if that job no longer exists,
to a substantially equivalent position, without prejudice to the seniority or any other rights
or privileges she would have enjoyed had she not been unlawfully denied the opportunity
to work as a substitute employee.
(f) Make Marielle Thorne whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of
the decision.
(g) Remove from its files any reference to the unlawful denial to Marielle Thorne of
opportunity to work as a substitute employee and the unlawful refusal to consider
Marielle Thorne for employment and thereafter notify her in writing that this has been
done and that the unlawful actions will not be used against her in any way.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of
such records if stored in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada
copies of the attached notice marked “Appendix.”46 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being signed by Respondent's
authorized representative, shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent at any time since
November 21, 2006.
(j) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that Respondent has taken to comply.

46 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated: Washington, D.C. July 18, 2008
Lana H. Parke
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT refuse to bargain in good faith with International Alliance of
Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United
States and its Territories and Canada, Local 720, AFL-CIO (the Union) as the collective
bargaining representative of our employees in the appropriate unit by unilaterally announcing
and granting a $1.00 wage increase to unit employees and by unilaterally changing our
compensation policy of Short Turnaround Pay Premium for unit employees. The unit is:
All full-time and regular part-time stagehands and wardrobe employees,
excluding all other employees, office-clerical employees, guards and supervisors
as defined in the Act.
WE WILL NOT refuse to furnish the Union with information requested by the Union that is
necessary for the Union’s performance of its duties as the collective-bargaining representative
of the unit.
WE WILL NOT deny any employee the opportunity to work as a substitute employee because
of the employee’s union activities and/or the union activities of other employees.
WE WILL NOT refuse to consider any employee for employment because of the employee’s
union activities and/or because the employee was the subject of an unfair labor practice charge
filed by the Union with the National Labor Relations Board.
WE WILL NOT maintain or enforce rules prohibiting employees from engaging in union or other
protected solicitation or distribution during nonwork time and in nonwork areas or restricting
protected employee communications with each other, with the Union, and with the media.
WE WILL NOT threaten employees with denial of work opportunities because they engaged in
union activities and/or because the Union filed charges with the National Labor Relations Board.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.
WE WILL, on request by the Union, rescind our $1.00 wage increase to unit employees
and the change in our compensation policy of Short Turnaround Pay Premium for unit
employees, and we will bargain with the Union regarding any such changes.
WE WILL make employees whole, with interest, for any loss of earnings or benefits
suffered as a result of the changes.
WE WILL furnish the Union with the information requested by the Union in its April 25,
2007 letter.
WE WILL offer Marielle Thorne a job as a substitute employee or, if such a job no longer exists,
to a substantially equivalent position, without prejudice to the seniority or any other rights or
privileges she would have enjoyed but for our unlawful actions.
WE WILL make Marielle Thorne whole for any loss of earnings and other benefits resulting from
our refusal to transfer her to a position as a substitute employee and our refusal to consider her
for employment.
WE WILL remove from our files any reference to our unlawful refusal to transfer Marielle Thorne
to a position as a substitute employee and our unlawful refusal to consider her for employment,
and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the
refusals will not be used against her in any way.
WE WILL remove from the Employee Handbook those portions of the Confidentiality rule, the
Solicitation and Distribution Rule, and the Press Events/Opportunities rule found to be unlawful
and inform employees in writing that the unlawful portions of the rules are no longer in force or
effect.
Blue Man Vegas, LLC
(EMPLOYER)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.