David Saxe Productions, LLC and Vegas! The Show, LLC, Joint Employers

National Labor Relations Board - Administrative Judge Opinions

May 7, 2013

28-CA-075461 (N.L.R.B. May. 7, 2013)

JD(SF)–18-13
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DAVID SAXE PRODUCTIONS, LLC and
VEGAS! THE SHOW, LLC, Joint/Single Employers
and Case 28-CA-075461
DAVID SAXE PRODUCTIONS, LLC, and
FAB FOUR LIVE, LLC, Joint/Single Employers
and Case 28-CA-084151
ANNE TRACY CARTER, an Individual
Patricia Fedewa, Esq., for the General Counsel.
Bruno W. Katz, Esq. (Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP for the Respondent.
DECISION
STATEMENT OF THE CASE
Eleanor Laws, Administrative Law Judge. This case was tried in Las Vegas, Nevada on
October 16–18 and December 11–12, 2012.1 Anne Tracy Carter (the Charging Party or Carter)
filed the charge in Case 28–CA–075461 on February 27, 2012 and the Acting General Counsel
issued the complaint on June 28, 2012. The Charging Party filed the charge in Case 28–CA–
084151 on June 28, 2012 and the Acting General Counsel issued a consolidated amended
complaint on August 23, 2012.
The issue before me is whether David Saxe Productions, LLC, Vegas! The Show, LLC,
and/or Fab Four Live, LLC (the Respondents) violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by maintaining and enforcing overly-broad and discriminatory rules,
interrogating employees about their protected concerted activities, prohibiting employees from
engaging in protected concerted activities, disparaging and threatening employees with discharge
and unspecified reprisals for engaging in protected concerted activities, and discharging the
Charging Party because of her protected concerted activities. At the hearing, the Acting General
Counsel amended the complaint to allege additional individuals were supervisors and to allege
the Respondents are a single employer. The Respondents filed a timely answer denying any

1 The hearing was held on these separate dates because witness Tiger Martina was working on a
cruise ship and unavailable to testify prior to December 12.
JD(SF)–18-13
2
unfair labor practice occurred. In addition, the Respondents deny they are a joint and/or single
employer and assert that certain individuals are not supervisors under the National Labor
Relations Act (the Act).
On the entire record, including my observation of the demeanor of the witnesses, and 5
after considering the briefs filed by the Acting General Counsel and the Respondents, I make the
following
FINDINGS OF FACT
10
I. JURISDICTION
The Respondents engage in various aspects of providing live shows in Las Vegas,
Nevada, and admit that at all material times each entity has met the Board’s jurisdictional
standards.2 The Respondents admit, and I find, that they are employers engaged in commerce 15
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Respondents’ Operations20
This case primarily concerns two live shows, Vegas! The Show and the BeatleShow.3
David Saxe (Saxe) is the owner and managing member of Vegas! The Show, LLC, the corporate
entity for Vegas! The Show.4 Vegas! The Show, which Saxe produces, pays homage to the
entertainers that made Las Vegas famous from the 1940s to the 1970s, and features the talent of 25
singers and showgirl dancers. Saxe and Terry “Mick” McCoy (McCoy) are equal co-owners of
Fab Four Live, LLC, the BeatleShow’s corporate entity. 5 The BeatleShow stars four men who
portray the Beatles. There are other side characters, including an Austin Powers character, a
hippie character, a beefeater character and a couple of dancers. The dancing aspects of Vegas!
The Show are far more rigorous and central to the performance than in the BeatleShow.30
Saxe is the owner and CEO of David Saxe Productions, LLC (DSP). For public relations
purposes, Saxe sometimes refers to “David Saxe” the individual and “David Saxe Productions”
interchangeably. (Tr. 27– 28).6 In addition to Vegas! The Show, LLC, Fab Four Live, LLC and

2 The Respondents stipulated that each entity met the jurisdictional standards following a discussion
about outstanding subpoena requests the Acting General Counsel had made in order to establish
jurisdiction.
3 The BeatleShow is repeatedly referred to erroneously in the transcript as the Beetles Show.
4 Vegas! The Show, LLC and Vegas! The Show are referred to interchangeably in this decision. It is
understood that the former is the corporate entity of the latter.
5 The BeatleShow was previously called Fab Four Live.
6 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for Acting General Counsel’s exhibit; “GC Br.” for the Acting General Counsel’s
brief; “R Br. for the Respondents’ brief. Although I have included several citations to the record to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited, but rather are based my review and consideration of the entire
record.
JD(SF)–18-13
3
DSP, Saxe also has an ownership in several other companies. Saxe Management, LLC, is the
management company for Saxe’s various companies. (GC Exh. 3). DSP performs the “office
stuff” for Saxe’s companies. (Tr. 45). Saxe does not separately bill his time to his various
enterprises.
5
All the entities Saxe has an ownership or management interest in share the same mailing
address on South Commerce Street. The facility at South Commerce encompasses traditional
offices, production offices, a dance studio, and a screen room. There are no offices specifically
dedicated for Vegas! The Show or The BeatleShow (or their respective corporate entities) at
South Commerce or elsewhere. Documents and records concerning both shows are kept at the 10
South Commerce offices. Likewise, neither show has its own separate phone number or e-mail
server. Supervisors use DavidSaxe.com as their e-mail tag regardless of which entity employs
them. (GC Exh. 8).
Robert Smith is the chief financial officer (CFO) of DSP. The finance department 15
handles the administrative functions for all the companies under David Saxe Productions. (Tr.
421). Managed Pay, an outside payroll services firm, handled payroll for DSP and Vegas! The
Show prior to January 2012.7 (Tr. 414). Thereafter, DSP accounting employee Janien Robertson
(Robertson) took over processing payroll and accounts payable. (Tr. 45, 426). McCoy handles
payroll for Fab Four Live, LLC but sends the payroll information to DSP for processing. (Tr. 20
253-255, 610; GC Exhs. 28–29). For purposes of insurance and workers’ compensation policies,
Smith pools the companies to get a better rate. (Tr. 415–16, 611).
Neither Vegas! The Show, LLC nor Fab Four Live, LLC has an in-house human
resources department. (Tr. 415). DSP oversees human resources services for all of Saxe’s 25
companies. DSP’s executive vice president and general manager Matthew Resler (Resler) or
Robertson signs paperwork for terminations involving Vegas! The Show and processes other
employment information. (Tr. 593–595; GC Exhs. 33, 35, 37–41, 49). Legal issues concerning
the shows are referred to DSP. (Tr. 611). DSP administers COBRA benefits for Vegas! The
Show. (GC Exh. 26; Tr. 127-128).30
Nicole Tanner, who worked as a legal secretary in Saxe’s office, is listed as the registered
agent for Vegas! The Show, LLC. (GC Exh. 7). DSP and Vegas! The Show, LLC, are parties to
a marketing and consulting agreement. (GC Exh. 10). DSP bills Vegas! The Show for services
performed under the agreement. There is no similar agreement between DSP and Fab Four Live, 35
LLC. DSP performs marketing and public relations functions for Vegas! The Show and the
BeatleShow. (Tr. 262–63). Employees from DSP handle the Vegas! The Show website and the
BeatleShow website. (Tr. 609-611).
The shows are performed at the Saxe Theater in the Miracle Mile Mall inside Planet 40
Hollywood. The legal entity Saxe Theater Group leases the space. Pursuant to an agreement
between DSP and Saxe Theater Group, DSP promotes shows that play in the Saxe Theater. A
runner from DSP routinely goes to the Saxe Theater. The BeatleShow was previously performed

7 Smith terminated Managed Pay’s services because they continued to get the various companies
confused. (Tr. 419– 420).
JD(SF)–18-13
4
at the V Theater, which is leased by V Theater Group. Saxe has an 89-percent interest in V
Theater Group.
The performers in Vegas! The Show occasionally rehearse at the South Commerce
facility. The BeatleShow performers auditioned at the South Commerce facility and have held a 5
couple of rehearsals there. DSP did not bill either entity.
Performers in Vegas! The Show and the BeatleShow are paid an agreed upon rate per
show regardless of how well the show does. Saxe would not permit dancers to sell photos of
themselves in costume after the shows. (Tr. 74). Dancers cannot lease or subcontract their 10
positions in the BeatleShow. (Tr. 77). Dancers in the BeatleShow consider their work as part-
time, and they received 1099 forms documenting their pay.
Performers bring issues or concerns about the BeatleShow to McCoy. (Tr. 329). McCoy
signs the paychecks for the BeatleShow. (Tr. 435). Nobody at DSP, other than Saxe, makes 15
decisions about work schedules, hiring, termination, rules, supervision or how many people
perform in the BeatleShow. (Tr. 625). Likewise, nobody at DSP, other than Saxe, controls the
dancers’ hours, time off or anything to do with work schedules, number of dancers per show, or
any rules involving dancers in Vegas! The Show.
20
B. Vegas! The Show Casting and Early Stages
Initial rehearsals for Vegas! The Show went from late April to mid-June and took place at
the South Commerce facility. (Tr. 89-90). Carter learned about the auditions through a website,
VegasAuditions.com. (Tr. 88). Tiger Martina (Martina) is choreographer and director of Vegas! 25
The Show. In that capacity, he directs the dancers’ moves, style and mannerisms. (Tr. 286, 641).
Saxe and Martina ran the auditions and selected the dancers. (Tr. 471, 643).
The dancers initially selected, including Carter, signed 6-month employment contracts
referred to as artist agreements. (Tr. 473). On May 10, 2010 Carter signed her agreement with 30
Vegas! The Show, LLC to perform in Vegas! The Show. Saxe signed as Vegas! The Show,
LLC’s authorized representative that same date.8 (GC Exh. 14). The initial artist agreements,
including Carter’s, were for a 6-month term, and required full-time dancers to perform 12 shows
per week. The contracts also covered things other than dancing, such as meet-and-greets with
the audience, promoting the show, coming to the show before the performance, and staying after 35
it ends.9 Following some initial compensated rehearsals, uncompensated follow-up rehearsals
and costume fittings totaling less than 4 hours per week were also part of the agreement. Vegas!
The Show, LLC maintained the right to terminate the contract with 2 weeks’ notice and
employees could terminate with 30 days’ notice. Paragraph 15 of the contact states: “NON-
DISCLOSURE. Employee agrees not to disclose the terms of this Agreement to third parties or 40
fellow employees without the Company’s prior written consent.” Paragraph 16 states, “NON-
UNION. Employee acknowledges the Show is not under the jurisdiction of any labor union.”
Paragraph 10c states: “Company shall have the right to terminate this Agreement without notice

8 Carter had a contract with another show while she worked in Vegas! The Show. (Tr. 166).
9 The initial contracts required the dancer to be present ½ hour prior to the show, but the subsequent
contracts required them to be present an hour prior to the show.
JD(SF)–18-13
5
in the event of breach by the employee of any covenant contained herein or for insubordination.”
That provision further warns the artist of potential monetary liability for the costs incurred in
replacing him or her in the event of a breach. (GC Exhs. 14, 31). The dancers understand there
is no requirement for a company to renew an agreement after its expiration. (Tr. 140-141, 208,
241-242, 270-271, 297).5
The dancers were required to attend an orientation meeting at a company called Managed
Pay to go over administrative and human resources matters such as signing up for insurance,
watching a sexual harassment video, and learning about disability accommodations. Employees
also learned about and acknowledged V Theater Group’s open door policy, which describes the 10
chain of command for reporting employee concerns.10 The meeting, which Carter attended on
April 27, 2010, lasted a few hours. (Tr. 90, 148, 222-23; GC Exh. 22; R. Exhs. 1, 2). Saxe
repeatedly told the dancers they should contact him with any concerns or questions and he posted
his e-mail address and phone number at the theater. (Tr. 150).
15
Vegas! The Show had a “soft” opening in June, and the grand opening was August 5,
2010. Dancers work on a schedule rotation performing 2 shows a night, 6 nights per week. (Tr.
93–95). The show starts at 7:00 and 9:00 p.m. and lasts about an hour and 20 minutes. There are
generally 10 female dancers in the show, but it can run with 8 if dancers need time off. (Tr. 288-
89, 334). A couple of “swing” dancers know multiple parts and can fill in as necessary. (Tr. 20
333).
After the initial dancers were cast, DSP continued to hold periodic auditions. Audition
notices usually specified they were for Vegas! The Show, but sometimes the notices were written
more broadly in an effort to find talent that may also fit other shows. (Tr. 676, 681; GC Exh. 46).25
The female dancers are required to do “vanities” before the show, which entail one
dancer getting ready at a pretend dressing room in the audience’s view. This vanities last for
about 10 minutes and are on a rotating schedule. The dancers, both male and female, also must
do “meet and greets” after the show, which entail one male and one female dancer talking to 30
audience members, posing for pictures with them, etc. Meet-and-greets also are on a rotating
schedule and last about 10-20 minutes.
Darlene Ryan (Ryan) was the company manager and production manager for Vegas! The
Show from its opening until her termination in November 2011. In that capacity, she took care 35
of scheduling and payroll. She also addressed any issues or concerns the performers had. (Tr.
97– 98). Vegas! The Show has two dance captains, Ryan Kelsey (Kelsey) and Claudia Mitria
(Mitria). Initially Kelsey was the only dance captain, but about 6 months into the show, Mitria
was added. Since that time, Kelsey has been the male dance captain as well as the dance captain
for the entire show and Mitria has been the female dance captain.11 The dance captains’ job 40
involves maintaining the integrity of the show. (Tr. 287– 88). After Ryan’s departure, Kelsey

10 Both the disability accommodation policy and open door dispute resolution policy are from the V
Theater Group, not Vegas! The Show, LLC. (R. Exh. 1–2).
11 Kelsey can make decisions for the entire cast, but generally Mitria handles the females and he
handles the males.
JD(SF)–18-13
6
and Mitria took over scheduling as well as responsibility for addressing dancers’ concerns or
questions. They can also recommend personnel actions. (Tr. 296, 319, 367, 372).
Martina is very specific about the dancing he wants for Vegas! The Show, and expects
the dancers to conform to his style. (Tr. 141). He explained that the style and movement of the 5
dancers is expected to change from scene to scene as the show moves through the different eras
it portrays. The dancers are expected to act the part as well as dance it. (Tr. 648). If a dancer
performs a move incorrectly from a technical standpoint, the dance captains are charged with
correcting it. Martina, on the other hand, makes artistic or style adjustments. (Tr. 319, 337, 366).
Martina and the dance captains provide the dancers with so-called “notes” before and after the 10
shows. The notes, which dancers receive regularly, delineate where the dancers’ performance
can improve. (Tr. 290, 326). In addition, Saxe routinely reviews photos from the show and
instructs Martina and the dance captains on how to improve it.12 (Tr. 492, 655–656; R. Exs. 4–7,
9–14).
15
After observing the dancers the first few months into the show, Martina thought Carter
did not have a strong grip of the show’s style and believed she appeared stiff and not very
versatile. He instructed the dance captains to continue to work with her to improve. (Tr. 652–
653). Martina thought Carter smiled and had consistent energy, but noticed she did not change
much between one character or scene and the next, which is typical of some shows, but not what 20
he was looking for in Vegas! The Show. (Tr. 671, 688–689).
C. Carter’s First Contract Renewed and Extended
When contracts are approaching expiration, the dance captains give input to Saxe and 25
Martina regarding whether a dancer should be renewed. (Tr. 299, 348–349, 479). Martina gives
his input to Saxe. When Carter’s first contract came up for renewal, Martina told Saxe that she
did not do some of the choreography correctly and she did not have the right style. He also
mentioned her attitude backstage and said he wanted to let her contract expire. (Tr. 479, 653–
654; 673). Saxe decided to keep her and try to get her to improve and cooperate. (Tr. 480, 499, 30
653–654).
Carter was retained and signed a new contract on December 26, 2010. It contained the
following provision at paragraph 9:
35
NONDISCLOSURE/NONDISPARAGEMENT. Artist agrees not to disclose the
terms of this Agreement to third parties or fellow Artists without Company’s prior
written consent. Once again, Artist may not disclose Artists compensation or solicit
information regarding anyone else’s compensation or other terms of their agreements.
If this occurs, Company shall not have the right to immediately terminate this40
agreement and collect damages as set forth in section 6 of this agreement. Artist shall

12 Numerous photos were introduced at the hearing depicting Carter and other dancers in Vegas! The
Show. The pictures were admitted into evidence with the express limitation that they are illustrative of
the types of photos Saxe and Martina reviewed, but these specific photos were not relied upon at the time
the decision was made to let Carter’s contract expire. Accordingly, I do not rely on any of the photos
specifically in deciding this case.
JD(SF)–18-13
7
agree not to disparage each other to any person in the media or any manor during the
terms of this agreement and continuing for ten (10) years thereafter.
Paragraph 10 states: “NON-UNION. Artist acknowledges that the Show is not under the
jurisdiction of any labor union.”13 Paragraph 6c states: “Company shall have the right to 5
terminate this Agreement without notice in the event of breach by Artist of any covenant
contained herein or for insubordination.” Paragraph 15 warns the artist of potential monetary
liability for the costs incurred in replacing him or her in the event of a breach. (GC Exh. 15).
Matthew Resler, DSP’s general manager, signed the contract on behalf of Saxe. (Tr. 168).
10
Carter did not recall having conversations with Martina near the expiration of the first
contract, but she did recall him raising style concerns at some point. (Tr. 157). She did not recall
Martina or anyone else raising concerns about a negative attitude. (Tr. 157, 171).
When Kelsey gave notes to Carter, he observed she would usually get defensive rather 15
than make the adjustment and try to adapt. (Tr. 292). Mitria observed that other dancers also
sometimes did not react well when getting notes. (Tr. 348). Kelsey raised concerns about
Carters’ reaction to notes with Saxe and Martina. He also told Saxe and Martina that he thought
Carter was a negative influence backstage. Over time, Kelsey noticed that Carter’s dancing style
did not align with the style Martina directed. (Tr. 294–95). Kelsey relayed his opinions about 20
Carter having a negative attitude to Ryan, and he testified that Resler and Ryan addressed
attitude with Carter during a meeting at the end of 2010. He was not present when this meeting
ostensibly occurred. (Tr. 316-17). Martina recalled reminding Resler and Ryan to speak to
Carter about her performance and attitude, but he was not at the meeting. (Tr. 678). Carter did
not recall Resler and Ryan ever counseling her. (Tr. 171). 25
Carter signed an extension of her December 2010 contract on April 26, 2011, with
expiration date of January 2, 2012. (GC Exh. 16).
D. Carter Joins the BeatleShow30
In the spring of 2011, Ryan informed the dancers, including Carter, that Saxe had decided
to use dancers from Vegas! The Show for the BeatleShow. A few of the dancers volunteered,
and Ryan later informed Carter and Monteece Mask (Mask) they would be dancing in the
BeatleShow. Mitria and Sara Short were chosen as swings for the BeatleShow, meaning they 35
would be called in if needed. Two female dancers from the original cast remained. (Tr. 101–102,
330). Martina conducted brief rehearsals for the BeatleShow at DSP. Once the new dancers
were added, they initially worked out scheduling among themselves. Carter generally performed
in the BeatleShow 2–3 days per week. The show, which runs a little over an hour, starts at 5:30
each night. Dancers are required to be there by 5:00, and their part of the show lasts 10–15 40
minutes.14 There are no employment contracts for dancers in the BeatleShow.

13 Other dancers signed agreements with these same provisions. (GC Exh. 32; Tr. 72).
14 The dancers who perform in the BeatleShow are not required to attend the 6:00 meeting for Vegas!
The Show. (Tr. 105).
JD(SF)–18-13
8
For the most part, the BeatleShow is choreographed but there are some places where the
dancers can dance freestyle. (Tr. 331). The dancers are required to move a large arrow that is
part of the set. Carter thought it was a safety issue for the dancers to move the arrow, so she
asked a stagehand to move it for her. Carter voiced her concern about this to Ryan. According
to Carter, McCoy instructed her to move the arrow herself. (Tr. 112–13). Anna Van Samback, 5
who became the dance captain for the BeatleShow around October 2011, observed that a few
other dancers were unhappy about moving the arrow. Van Samback ultimately took over
scheduling for the BeatleShow. Carter asked to be scheduled 4 days per week, but Van Samback
had contrary instructions. (Tr. 275–76; 443–445).
10
E. Fall/Winter 2011 Events and Carter’s Non-Renewal
Martina wanted to replace Carter in Vegas! The Show prior to her contract’s January
2012 expiration. Martina believed he was “fighting a losing battle” because Carter’s
performance issues were the same as they had been all along. He also noted that as the show 15
gained traction, he was getting more interest from dancers. (Tr. 677).
Saxe testified that in October 2011 he made the decision to keep Carter until her contract
expired but not to renew it. DSP held an audition on November 18, 2011 to get new dancers and,
according to Saxe and Martina, replace Carter.15 (Tr. 506, 541, 676–677). Saxe recalled a 20
conversation with Martina, Mitria and Kelesy about upcoming contract renewals and how many
new dancers they should look to hire prior to the audition. (Tr. 541, 546). The advertisement for
the audition stated that DSP was auditioning for female dancers with strong technique and a
Broadway-jazz influence. (R. Exh. 8). Martina testified it was his decision not to renew Carter,
but it was Saxe’s role to convey this decision to Carter.16 Martina’s primary reason for wanting to 25
let Carter’s contract expire was based on her performance. (Tr. 677–679).
With Ryan’s departure from Vegas! The Show in November 2011, many of the dancers
had concerns about who they should approach with problems or issues. (Tr. 226, 304–05, 388).
On December 11, they requested a meeting with Saxe through his assistant, Armando Macias. 30
On December 13, Saxe came into the women’s dressing room after the show to talk with the
cast.17 Though specific accounts vary slightly, the following summarizes the gist of the meeting.
Carter affirmed Saxe’s statement that cast morale was low, noting Ryan’s recent termination.
She told him the dancers wanted someone in the chain of command to whom they could voice
issues and concerns. Saxe asked their concerns and dancer Natacha Boychoure (Boychoure) 35
inquired about the potential for incentives for the dancers who had been there from the
beginning, rehearsal and holiday pay.18 (Tr. 116, 228). Saxe asked why they were bitching and
asked (apparently rhetorically) whether the contract provided for these things. Boychoure said
they weren’t bitching, and stated that they were supposed to be paid time and a half for nights

15 Saxe said if he could find four really amazing dancers at the audition, he would potentially not
renew the contracts of his four lowest dancers. (Tr. 541).
16 On one occasion Martina terminated a performer in Vegas! The Show without first consulting Saxe.
(Tr. 678).
17 Saxe did not remember the date of the meeting, but thought it was “the 20th or something.” (Tr.
546).
18 Carter wasn’t sure if other dancers who had expressed some similar concerns spoke during the
meeting. (Tr. 176-77).
JD(SF)–18-13
9
they only do one show and they never received that pay. Carter asked if they could get paid for
rehearsals when a new item was introduced, and noted that the contract said it was up to Saxe’s
discretion. According to Carter, Saxe responded, “All you do is bitch, bitch, bitch. I give you a
job and all you do is bitch.”19 (Tr. 117). Dancer Amanda Nowak (Nowak) said they were not
bitching, they just wanted open communication.20 (Tr. 228). Carter also stated they were not 5
bitching, they loved their jobs, but they had some concerns. Saxe asked what the concerns were
and Carter said the requirement to dance six nights a week did not leave sufficient time to attend
to injuries. Carter also mentioned that the first show often started late, which decreased the time
between the shows and provided insufficient time to prepare and stretch. She further complained
that doing the vanities before the show cut into time to prepare.21 Saxe said he understood, he 10
would try to work on scheduling issues so that there would be coverage if a dancer got injured,
but he didn’t want all this bitching. (Tr. 118, 230). Among the dancers, Carter spoke up the most
at the meeting. (Tr. 245).
Carter recalled the dancers were sitting at their station during the meeting. Carter’s 15
station was in the back corner, with a wall to her left and a wall behind her. (Tr. 701; GC Exh.
47). According to Saxe, dancers Jennaia Roussel and Nicole Hamilton were directly behind
Carter making faces and rolling their eyes when Carter was voicing certain complaints. After the
meeting they told him Carter was “awful” and she ruins the mood in the dressing room.22 (Tr.
517-19). 20

Toward the end of 2011, Kelsey and Mitria informed Saxe about Carter’s backstage
negativity when providing input into whether to renew her contract. (Tr. 300, 349, 506). As an
example, Carter had asked to have Thanksgiving off but was required to work. Mask told Kelsey
that Carter’s handling of the situation ruined her Thanksgiving. (Tr. 300–301). Kelsey believed 25
Carter’s backstage negativity was outweighing any benefit they were getting from her on stage.
(Tr. 308). Some of this negativity centered around holiday pay, scheduling, injuries, and meet-
and-greets. (Tr. 314, 361). Mitria also recommended that Carter’s contract not be renewed. She
believed Carter’s attitude, not her dancing ability, was the main concern. (Tr. 349–350).
30
A week after the meeting, Carter saw Saxe in the theater after the show discussing
contract renewals with some of the dancers. She had meet-and-greet, so was unable to speak
with him. The next day, December 21, at 6:54 p.m., Carter sent Saxe the following email
message: “Hi David, I didn’t get a chance to talk to you yesterday, I was wondering if there will
be another time to do that or if I can schedule a time? Thanks, Anne Carter.” At 7:59 p.m., Saxe 35
sent Carter the following email message:

19 Nowak’s recollection is that Boychoure asked about holiday pay and Saxe noted it wasn’t in their
contracts and stated, “All you guys do is bitch, bitch, bitch.” (Tr. 228).
20 Nowak was one of the original dancers in Vegas! The Show. She left the show voluntarily in
October 2010, and then performed in it on an on-call basis as a swing dancer and later on a part-time basis
(Tr. 225, 237; GC Exh. 32). Dancer Jennaia Roussel did not think Nowak was present for the meeting.
(Tr. 392).
21 She also voiced these complaints to Ryan and the dance captains.
22 Saxe testified they asked him to stay. (Tr. 516). Roussel recalled that Saxe initiated the discussion.
(Tr. 380).
JD(SF)–18-13
10
Hi Anne, Due to your constant negative attitude and lackluster performance I will not be
renewing your contract for Vegas! The Show. Your contract ends January 2. I hope that
you are professional enough to finish your contract and I would appreciate it of your
could cease all of the complaining in the dressing room. Your fellow cast members would
really appreciate it. Constant complaining and negativity just can’t be tolerated anymore.5
Thank you for all of the good things you have done in the past. Call or email me any
questions you might have. I tried to talk to you in person but you left last night.
David Saxe
(GC Exh. 20). Carter received the email during the middle of the first show, and continued with10
second show.
Carter called Saxe around December 23, and expressed that she felt blindsided.
According to Carter, Saxe stated that he knows Carter’s “type” and did not expect someone like
her to understand. He reiterated that all she does is bitch, she’s the most negative person in the 15
dressing room, other cast members can’t stand her, and Martina thinks she’s a pain in the ass.
Carter informed Saxe that she got along with the other dancers, they were all at her Christmas
party, and her performance was not lackluster. Carter assured Saxe that, as a professional, she
would complete her contract. (Tr. 122–123). Carter said she was very upset but stated she did not
yell at Saxe. Saxe conveyed that Martina did not think her dancing skills were very good, which 20
Carter disputed. (Tr. 211–212).
Saxe thought he initiated a telephone call to Carter about her contract not being renewed
on December 21st and then followed up with an e-mail. (Tr. 546–547, 552–554). According to
Saxe, he called her and was very nice and said would not be renewing her contract. (Tr. 519). 25
He later testified he sent the e-mail either the day of the conversation, the day after the
conversation, or days after the conversation. In his affidavit during the investigation he stated,
“After we got off the phone, I sent Anne Carter an e-mail.” (Tr. 584–585). Ultimately, Saxe
testified that employee complaints about Carter did not factor into the decision not to renew her
contract. (Tr. 591–592).30
Saxe called McCoy to see if he still wanted her in the BeatleShow and he said he did not.
In addition to concerns about her attitude, McCoy did not think she was the best match for the
BeatleShow show because he wanted the dancers to have more of a pretty girl-next-door look
than a Vegas showgirl look. Because of this, he had previously asked Van Samback to only 35
schedule Carter a couple days a week. (Tr. 443–445). Saxe called Carter back to ask if she
would be finishing out her contact in Vegas! The Show, and informed her that she was no longer
in the BeatleShow. (Tr. 212, 547–548).
A couple days later, Carter ran into Mitria and expressed her concern that she was not 40
warned anything was wrong. Mitria said she had voiced any concerns she had to Ryan, and
stated she was sorry. Carter also spoke with Kelsey and expressed some of the same concerns.
According to Carter, Kelsey said her performance was great. Carter acknowledged that she is
outspoken and said tried to phrase thing in a positive way for the greater good of the cast and
show. Carter recalled Kelsey saying, “Unfortunately David flies off the handle and doesn’t like 45
it when people talk back to him.” (Tr. 124–125.)
JD(SF)–18-13
11
Carter sent Saxe an email on December 27 recounting the phone conversations they had.
Carter expressed that she was blindsided by the non-renewal of her contract and her dismissal
from the BeatleShow. She also requested a copy of her contract and inquired about workers’
compensation. (GC Exh. 21). According to Carter, aside from notes and some routine
instructions, she had never been warned her performance was not satisfactory and had not been 5
counseled about her attitude. (Tr. 169–174). According to Saxe, he witnessed Resler formally
writing Carter up for her behavior around June 2011 and said there were multiple written
counselings but he did not know where they were. (Tr. 81, 588).
F. Perceptions about Carter10
Van Samback started dancing in Vegas! The Show in July 2011. She observed that Carter
complained a lot so she tried to keep her distance from her. Van Samback thought there was
frequent of complaining backstage which caused people to be unhappy. (Tr. 278). Van
Samback believed that Carter was the main person contributing to the tension backstage. (Tr. 15
278-79). Roussel began dancing in Vegas! The Show in late 2010. She perceived that Carter
always found something to complain about. (Tr. 374). She believed Carter negatively impacted
the mood in the dressing room, and told Saxe it is harder to have positive energy with Carter in
the room. (Tr. 376, 381). Roussel and Mitria perceived Carter was the most vocal about work
concerns among the employees. (Tr. 365, 389).20
Tara Palsha, a dancer with Vegas! The Show since its beginning, perceived Carter as a
very hard worker, but also thought she complained about even “miniscule” things on a regular
basis. She found it hard to be positive and upbeat in the dressing room because of Carter’s
complaints. (Tr. 405–06). Some dancers informed Kelsey that Carter was constantly 25
complaining. (Tr. 296). McCoy perceived Carter as confrontational. (Tr. 441).
Martina perceived that Carter had a negative attitude backstage that upset others and
affected morale and the outcome of the performance. He received complaints from the dance
captains, Palsha, as well as wardrobe employees who voiced that she was demanding with the 30
dressers and backstage workers. (Tr. 679–680).
Nowak observed that Carter was well-liked. (Tr. 234). Several coworkers, including
Mitria and Kelsey, attended Carter’s 2012 Christmas party.
35
III. DECISION
A. Threshold Issues
Before turning to the substance of the complaint allegations, I will address the threshold 40
issues of employer status and supervisory status.
1. Joint/Single Employer
The Acting General Counsel asserts that DSP, Vegas! The Show, LLC and Fab Four 45
Live, LLC are joint employers or, in the alternative are a single employer.
JD(SF)–18-13
12
A joint employer relationship exists where companies amounting to independent legal
entities have chosen to handle jointly important aspects of their employer-employee relationship.
It is not necessary to demonstrate that the various entities form a single integrated enterprise. See
NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122-23 (3d Cir. 1982). The standard in a
joint employer finding is two entities exert significant control over the same employees, and 5
where it can be shown that these two entities share or co-determine matters governing their
essential terms and conditions of employment. See Capitol EMI, 311 NLRB 997, 999 (1993);
Marcus Management, 292 NLRB 251, 259 (1989). A joint employer must meaningfully affect
matters relating to employment such as hiring, firing, discipline, supervision and direction.
Riverdale Nursing Home, 317 NLRB 881, 881 (1995); Browning –Ferris Industries, supra at 10
1123.
A single employer exists when two or more business entities maybe be considered one.
Parklane Hosiery Co., 203 NLRB 597 (1973). To determine whether two or more entities are
sufficiently integrated to be considered a single employer, the Board examines four principal 15
factors: (1) common ownership; (2) common management; (3) interrelation of operations; and
(4) centralized control of labor relations. Waterbury Hotel Management, LLC, 333 NLRB 482,
523 (2001). Not all of these criteria need be present to establish single-employer status, which
ultimately depends on all the circumstances of the case, but a highly significant factor is the
absence of an “arm’s length relationship found amongst unintegrated companies.” Denart Coal 20
Co., 315 NLRB 850, 851 (1994); Herbert Industrial Relations Co., 319 NLRB 510, 524 (1995);
Emsing’s Supermarket, Inc., 284 NLRB 302, 303 (1987), enfd. 872 F.2d 1279, 1289 (7th Cir.
1989). The Board regards the common control of labor relations as an important factor and
weighs common ownership less heavily. Naperville Ready Mix, 242 F. 3d 744, 752 (7th Cir.
2001) (citing Fedco Freightlines, Inc., 273 NLRB 399). 25
I will first analyze whether the Acting General Counsel has met the burden of proof to
establish single employer status. I find DSP, Vegas! The Show, LLC, and Fab Four Live, LLC,
satisfy the common ownership factor. Saxe is the owner of both DSP and Vegas! The Show. He
is 50-percent owner of Fab Four Live, LLC, which is sufficient to meet the common ownership 30
factor. Bolivar-Tees, Inc., 349 NLRB 720, 722 (2007), enfd. 551 F.3d 722 (8th Cir. 2008). I
also find the common management factor is satisfied. Saxe Management, LLC is the
management company for Saxe’s various companies. Saxe himself is the manager of DSP and
makes managerial decisions across his various companies. Saxe hires and fires employees for
Vegas! The Show. He is listed organizationally as the head of each company. (GC Exhs. 9, 43; 35
R Exh. 15). While McCoy handles all performers’ issues or concerns about the BeatleShow,
Ryan supervised employees for both shows until her termination in late 2011. Saxe determined
that he would use dancers from Vegas! The Show for the BeatleShow. In short, Saxe exercises
“overall control of critical matters at the policy level.” Emsing’s Supermarket, supra at 302.
40
The operations among DSP, Vegas! The Show, LLC, and Fab Four Live, LLC, are
sufficiently interrelated to satisfy the third prong of the test. Saxe does not separately bill his
time to his various enterprises. There are no offices designated for a specific show, and all the
entities share the same mailing address. Documents and records concerning both shows are kept
at the same offices at the South Commerce facility. Both Vegas! The Show and the BeatleShow 45
use the South Commerce facility for auditioning and rehearsals. DSP does not bill either entity
for use of the space. Neither show has its own separate phone number or e-mail server—
JD(SF)–18-13
13
supervisors use DavidSaxe.com as their e-mail tag regardless of which entity employs them.
Moreover, the finance department handles the administrative functions for all the companies
under DSP. All the companies are pooled by the CFO for purposes of workers’ compensation
and other insurance. Further, DSP performs the “office stuff” for Saxe’s various companies and
oversees human resources matters for all of Saxe’s companies. DSP performs marketing and 5
public relations function for Vegas! The Show and the BeatleShow. Additionally, employees
from DSP handle the Vegas! The Show and BeatleShow’s websites. Legal issues concerning the
shows are referred to DSP. DSP agents sign termination papers involving Vegas! The Show
employees and process other employment information. DSP administers COBRA benefits for
Vegas! The Show. Although DSP and Vegas! The Show are parties to a marketing and 10
consulting agreement DSP bills Vegas! The Show for services rendered, neither the specific
nature of the services nor the price of the services is described in the agreement. DSP and Fab
Four Live, LLC do not have a similar agreement even though DSP performs marketing and
public relations functions for the BeatleShow.
15
Finally, as previously noted, DSP, Vegas! The Show, LLC, and Fab Four Live, LLC,
maintain centralized control of labor relations. Saxe controls the labor relationship of both
employees of the BeatleShow and the Vegas! The Show. It was Saxe who decided to use
dancers from Vegas! The Show to perform in the Beatleshow, and Saxe who informed Carter of
her discharge from both. DSP employees sign artist agreements for Vegas! The Show 20
employees. In addition, DSP employees process payroll and deal with any legal issues that arise
with respect to the dancers’ employment.
Based on the foregoing, I find the Acting General Counsel has established single
employer status among the companies at issue.25
2. Supervisory Status
The Acting General Counsel amended the complaint to allege that Mirtria and Kelsey are
statutory supervisors. Because none of the issues in this case turn on the supervisory status of 30
either individual, I find it unnecessary to determine whether or not they fall within the definition
of supervisor under Section 2(11) of the Act.
B. Alleged Section 8(a)(1) Violations
35
The various substantive allegations concern violations of Section 8(a)(1) of the Act.
Under Section 8(a)(1), it is an unfair labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights
guaranteed in Section 7 include the right “to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted 40
activities for the purpose of collective bargaining or other mutual aid or protection . . .”
1. Contract Provisions
Section 4(a) of the Complaint alleges that the Respondents DSP and Vegas! The Show 45
violated Section 8(a)(1) by maintaining overly-broad and discriminatory contract provisions, i.e.
a non-disclosure clause and a non-union clause.
JD(SF)–18-13
14
The Acting General Counsel has the burden to prove, by preponderant evidence, that a
rule or policy violates the Act. In determining whether a work rule violates Section 8(a)(1), the
appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise
of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd 203 F.3d 52 5
(D.C. Cir. 1999). Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), if the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the
violation is dependent upon a showing of one of the following: (1) employees would reasonably
construe the language 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.” Id. at 10
847. A rule does not violate the Act if a reasonable employee merely could conceivably read it as
barring Section 7 activity. Rather, the inquiry is whether a reasonable employee would read the
rule as prohibiting Section 7 activity. Id. The question of whether a rule or policy is on its face a
violation of the Act requires a balancing between an employer's right to implement certain
legitimate rules of conduct in order to maintain a level of productivity and discipline at work and 15
the right of employees to engage in Section 7 activity. Firestone Tire & Rubber, 238 NLRB
1323, 1324 (1978).
a. Non-Disclosure Clause
20
The non-disclosure clause, set forth above, explicitly prohibits disclosure of
compensation and other terms of employment. The Board has consistently found confidentiality
provisions “that expressly prohibit employees expressly prohibit employees from discussing
among themselves, or sharing with others, information relating to wages, hours, or working
conditions, or other terms and conditions of employment, restrain and coerce employees in 25
violation of the Section 8(a)(1) of the Act, regardless of whether the rule was unlawfully
motivated, or ever enforced.” The Roomstore, 357 NLRB No. 143, slip op at 25 (2011). As such,
the non-disclosure provision is unlawful under Lutheran Heritage. See Waco, Inc, 273 NLRB
746, 748 (1984); Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004).
30
b. Non-Union Clause
The clause at issue is a one-line acknowledgement that Vegas! The Show is not under the
jurisdiction of a labor union. As the Respondents point out, this is a statement of fact that does
not set forth the employer’s opinion of unions. The provision does not expressly restrict Section 35
7 activity, nor was evidence presented that it was promulgated in response to it, or that it was
applied to restrict the exercise of Section 7 rights. As such, I must determine whether it would
reasonably be construed as prohibiting protected activity. For the reasons set forth below, I find
that it would.
40
The Acting General Counsel asserts that the clause is a “yellow dog” provision, i.e. a
promise to abstain from union activity. To support this contention, the Acting General Counsel
points to Leather Center, Inc., 312 NLRB 521, 528–529 (1993). In that case, a provision of the
employee manual stated: “Our Company is union free, and we intend to lawfully remain this
way. We believe your needs and ours are best met by avoiding the addition of an outside third 45
party to come between us.” Id. at 525. The employer required the employees to sign an
agreement promising to comply with the manual under threat of discipline including discharge,
JD(SF)–18-13
15
and the signed agreement was placed in the employees’ respective personnel files. Similarly, the
Acting General Counsel relies on La Quinta Motor Inns, Inc., 293 NLRB 57, 60–61 (1989),
where there was a similar provision along with an acceptance form stating the employees agreed
to abide by the employer’s policies and procedures as a condition of continued employment. In
both cases, the Board found that employees would reasonably believe they were subject to 5
discipline for violating the employer’s anti-union policy in violation of Section 8(a)(1) of the
Act. The threat of discipline was a key factor both cases; absent the accompanying threat, the
handbook provisions would be protected employer speech under Section 8(c) of the Act. See
also, Heck’s Inc., 293 NLRB 1111 (1989); Matheson Fast Freight, Inc., 297 NLRB 63 (1989);
Noah’s New York Bagels, Inc., 324 NLRB 266 (1997).10
The provision at issue here does not go as far in that it does not explicitly express the
Respondent’s opinion or its desire to forever remain non-union. Particularly in light of the non-
union provision’s juxtaposition with the non-disclosure clause, along with the threat of contract
termination and/or a financial penalty for breach of any provision or for insubordination, 15
however, I find the clause is coercive. The contract requires the dancer to acknowledge that
Vegas! The Show is non-union as a term of employment. If dancers organized, they would no
longer be acknowledging the show is non-union, and would reasonably believe they faced
termination and/or a monetary penalty.
20
The Respondents, citing to a couple of federal sector Equal Employment Opportunity
Commission decisions, argue that the clause must be given its plain meaning and I may not infer
some unexpressed intention. The law cited, however, is from a different forum governed by
different laws, and I am bound by the Board’s standards as applied above. Accordingly, I find
the Non-Union clause violates Section 8(a)(1) of the Act. 25
2. Saxe’s Comments at the December 13 Meeting
The Complaint allegations at paragraph 4(c) concern Saxe’s conduct at the December 13,
2011, meeting with employees. Specifically, the Complaint alleges that Saxe: (1) interrogated 30
employees about their concerted activities; (2) prohibited employees from engaging in concerted
activities; (3) disparaged employees because they engaged in concerted activities; (4) threatened
employees with unspecified reprisals because of their concerted activities; (5) impliedly
threatened employees with discharge for engaging in concerted activities; and (6) promulgated
an overly-broad and discriminatory rule prohibiting employees from complaining about wages 35
and hours.
a. Credibility
Before addressing the specific allegations, I will address credibility. As noted above, 40
Saxe could not recall the specific date of the meeting, and his testimony repeatedly strayed from
the specifics of what was said at the meeting (Tr. 510–15). Kelsey could not specifically recall
whether profanity was used but recalled that the conversation got “heated” and noted that Saxe
had said to him previously that rather than “bitch” about problems he would prefer to find
productive solutions. Mitria noted that Saxe got “defensive” when Boychoure complained, but 45
other than that her testimony about the meeting was rambling and non-specific. (Tr. 353–355).
Roussel described the meeting as “laid back” and “fair” but did not give specific testimony about
JD(SF)–18-13
16
what was said. (Tr. 379). To the extent the accounts of the meeting differ, I find Carter and
Nowak’s testimony regarding the meeting are highly corroborative and far more specific and
credible than Saxe’s recollection. Nowak, who still works for the show, testified in a calm and
open-ended manner and appeared sincere. Because Nowak is testifying against her own
pecuniary interests, I find her testimony to be particularly reliable. Gold Standard Enterprises, 5
234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961); Gateway
Transportation Co., Inc., 193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of Unarco
Industries, Inc., 197 NLRB 489, 491 (1972).
b. Legal Standards10
The Board's well-established test to determine if there has been a violation of Section
8(a)(1) of the Act is whether the employer engaged in conduct which might reasonably tend to
interfere with the free exercise of employee rights under Section 7 of the Act. American
Freightways Co., 124 NLRB 146 (1959).15
Because the complaints regarding the December 13 meeting relate to concerted activity,
and because a finding that Carter engaged in protected concerted activity is a necessary element
of some later complaint allegations, I will make a threshold determination regarding whether the
complaints, including Carter’s, were concerted. The Board has held that activity is concerted if it 20
is “engaged in with or on the authority of other employees, and not solely by and on behalf of the
employee himself.” Meyers Industries (Meyers I), 268 NLRB 493 (21984), revd. sub nom Prill
v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers
Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted activity also includes 25
“circumstances where individual employees seek to initiate or to induce or to prepare for group
action” and where an individual employee brings “truly group complaints to management’s
attention.” Meyers II, 281 NLRB at 887. An individual employee’s complaint is concerted if it is
a “logical outgrowth of the concerns of the group.” Every Woman’s Place, 282 NLRB 413
(1986); Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038 (1992), after remand, 3 10 NLRB 831 30
(1993), enfd., 53 F.3d 261 (9th Cir. 1995).
The record is replete with testimony that many of the dancers, including Carter, were
concerned about working conditions following Ryan’s termination. The meeting was held to
address such concerns, and at least two dancers other than Carter voiced concerns about wages, 35
scheduling and other working conditions. I find, therefore that Carter and the dancers who spoke
at the December 13 were engaged in concerted protected activity.
c. Paragraph 4(c)(1): Alleged Interrogation
40
The employees requested the meeting with Saxe to express concerns they had about the
workplace following Ryan’s departure. Saxe asked what their concerns were. This is not an
interrogation. In closing brief, the Acting General Counsel combined the alleged interrogation
and alleged prohibition from engaging in concerted activities into a single paragraph, citing to
Orbit Lightspeed Courier Systems, Inc., 323 NLRB 380, 394 (1997); and Domsey Trading Corp., 45
310 NLRB 777, 793 (1993), 16 F.3d 517 (2d Cir. 1994). The portions of those cases cited do not
JD(SF)–18-13
17
discuss unlawful interrogations. As I find no support for this allegation, I recommend its
dismissal.
d. Paragraph 4(c)(2) and (3): Alleged Prohibition and Disparagement
5
The Respondents contend generally that Saxe is open to feedback and the dancers feel
comfortable approaching him. Whether or not this is generally true, the feedback he gave on
December 13 in response to concerted complaints violated the Act. Specifically, I credit the
corroborated testimony, detailed above, that Saxe bemoaned the dancers’ “bitching” about topics
involving pay, hours, and other working conditions.23 10
Though not an outright or explicit prohibition of concerted activity, Saxe used degrading
language when he told the dancers he didn’t want “all this bitching”. As the Board noted in
Orbit, supra, even if degrading language is common in the workplace, it becomes unlawful when
“coupled with disparaging remarks about protected activity.” I find here, like in Orbit, the 15
disparaging language directed at protected activity would reasonably tend to discourage and
interfere with concerted activities, and it therefore violates the Act as alleged. See also Domsey
Trading Corp., 310 NLRB 777, 793 (1993), enfd. 16 F.3d 517 (2d Cir. 1994).
e. Paragraph 4(c)(4) and (5): Alleged Threats20
When determining if statements amount to threats of retaliation, the Board applies the test
of “whether a remark can reasonably be interpreted by an employee as a threat.” The actual
intent of the speaker or the effect on the listener is immaterial. Smithers Tire, 308 NLRB 72
(1992); See also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry under 25
Sec. 8(a)(1) is an objective one which examines whether the employer's actions would tend to
coerce a reasonable employee). The “threats in question need not be explicit if the language used
by the employer or his representative can reasonably by construed as threatening.” NLRB v. Ayer
Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board considers the totality of the
circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled threat 30
to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
I find Saxe’s repeated comments that he didn’t want to hear any bitching, particularly in
the context of a meeting where he was ostensibly present to address known morale issues, would
tend to coerce a reasonable employee and constitute an implied threat. I credit Carter’s 35
testimony that Saxe stated words to the effect of “I give you a job and all you do is bitch.” This
explicit reminder of who is in charge is not necessary to establish a threat, however, as the record
establishes the employees clearly knew Saxe controlled the show, and specifically the contract
renewals. Considering the totality of the evidence, including the contract provisions prohibiting
the dancers from disclosing their wages and working conditions and threatening to discipline 40
them for violations, I find Saxe’s comments could reasonably be construed as threatening.
In assessing the totality of the circumstances, I have considered Saxe’s opinion, shared by
some of the performers, that he is accessible to and open with his cast. In the context of the

23 Saxe’s tendency toward using this term is apparent from the transcript. In addition, Saxe himself
referred to Boychoure’s requests for holiday pay as an “attack”. (Tr. 511).
JD(SF)–18-13
18
December 13 meeting, however, he clearly did not welcome complaints, and became upset and
disparaging when presented with them. Accordingly, I find the Acting General Counsel has met
his burden with regard to the complaint allegations in paragraph 4(c)(4) and (5).
f. Paragraph 4(c)(6): Promulgation of Rule Prohibiting Complaints5
I see no meaningful difference between the allegation set forth in Complaint paragraph
4(c)(2) that Saxe prohibited concerted activity and the allegation that he promulgated an overly
broad and discriminatory rule prohibiting complaints about wages and hours. The concerted
complaints were about wages, hours, and working conditions. The prohibition and the rule are 10
one in the same.
3. Carter’s Vegas! The Show Contract Non-Renewal and Related Allegations
Because the remainder of the allegations are inextricably linked to Carter’s discharge, 15
they will be discussed in that context.
a. Carter’s Status and Standing
The Respondents assert that Carter was not discharged from Vegas! The Show. Instead, 20
her finite contract was simply allowed to expire in line with industry standards, and she had no
reasonable expectation of renewal.
Though recognizing the Board is not bound by state law, the Respondents point to
Touchstone Television Production v. Superior Court, 208 Cal.App.4th 676 (2012), as instructive. 25
The court in Touchstone held that the plaintiff, an actress, had no tort-based cause of action for
wrongful termination against public policy based on non-renewal of her contract. The court
held, however, the actress’s allegations of retaliation for complaining about unsafe working
conditions, a statutory claim, raised a viable cause of action. There is no tort-based assertion
regarding Carter’s non-renewal, and therefore I will proceed to analyze her statutory claim on the 30
merits. See Saipan Hotel Corp., 321 NLRB 116 (1996).24
b. Vegas! The Show Contract Non-Renewal
Paragraph 4(e) of the complaint alleges that Carter was discharged from Vegas! The 35
Show for her protected concerted activities in violation of Section 8(a)(1) of the Act. To prove
an adverse action violates Section 8(a)(1), the Acting General counsel must establish the
following elements: (1) the activity must be concerted; (2) the employer must know of the
concerted nature of the activity; (3) the activity must be protected by the Act, and (4) the adverse
action taken against the employees must be motivated by the activity. Meyers Industries, 268 40
NLRB 493, 497 (1984); Triangle Electric Co., 335 NLRB 1037, 1038 (2001). If the General

24 The remainder of the Respondents’ arguments on this point go to the merits of the claim. To the
extent the Respondents argue that a cause of action for non-renewal may be based on retaliation for union
activity but not retaliation for concerted protected activity, such a contention has no basis in the law. It is
well-established that Retaliation claims may rest on union activity (Section 8(a)(1) and (3)) and/or
protected concerted activity (Section 8(a)(a)) alike.
JD(SF)–18-13
19
Counsel is able to make such a 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, 251 NLRB 1083, 1089 (1980); See also Signature Flight Support, 333
NRLB 1250, (2001) (applying Wright Line in context of discharge for protected concerted
activity).5
As set forth above, Carter engaged in concerted protected activity when she and other
employees voiced complaints to Saxe about working conditions at the December 13 meeting.
The real issue is the motivation behind the decision to let Carter’s contract expire.
10
Under Board precedent, improper motivation may be inferred from several factors,
including pretextual and shifting reasons given for the employee's discharge, the timing between
an employee's protected activities and the discharge, and the failure to adequately investigate
alleged misconduct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica Health
Systems, Inc., 343 NLRB 1351, 1361 (2004). Discriminatory motive may also be established by 15
showing departure from past practice or disparate treatment. See JAMCO, 294 NLRB 896, 905
(1989), aff’d mem., 927 F.2d 614 (11th Cir. 1991), cert. denied 502 U.S. 814 (1991); Naomi
Knitting Plant, 328 NLRB 1279, 1283 (1999).
The Acting General Counsel asserts the e-mail Saxe sent on December 21, 2011, 20
informing Carter of her non-renewal is direct evidence of unlawful motivation. The e-mail, sent
in response to Carter asking for a meeting to discuss her contract renewal, states:
Hi Anne, Due to your constant negative attitude and lackluster performance I will not be
renewing your contract for Vegas! The Show. Your contract ends January 2. I hope that 25
you are professional enough to finish your contract and I would appreciate it of your
could cease all of the complaining in the dressing room. Your fellow cast members would
really appreciate it. Constant complaining and negativity just can’t be tolerated anymore.
Thank you for all of the good things you have done in the past. Call or email me any
questions you might have. I tried to talk to you in person but you left last night. David 30
Saxe
(GC Exh. 20). While I agree that Carter’s complaining is clearly stated as a reason for her non-
renewal, Saxe cites her “constant complaining” in the dressing room and references the effect on
her coworkers. It is clear, therefore, that the e-mail relies on some “complaining and negativity” 35
other than the concerted complaints Carter voiced at the December 13 meeting.
The coworkers’ concerns, detailed above, were that Carter created a negative mood in the
dressing room by her frequent complaining. The Acting General Counsel asserts that the dancers
who testified about Carter’s complaints were generally not believable because they appeared 40
nervous and they work for Saxe, who was present throughout the hearing. I did not find Palsha
to be nervous during her testimony, and I found her to be a credible witness. Her demeanor was
straightforward, and she did not appear to embellish her testimony. I also found Van Samback to
be a credible witness based both on her calm and open demeanor and the fact that her testimony
was corroborated by Palsha and other dancers who testified. I likewise credit Kelsey’s testimony 45
regarding the complaint from the dancer who said Carter’s attitude had ruined her
JD(SF)–18-13
20
Thanksgiving.25 The record is replete with testimony that dancers and the dance captains
informed Saxe of Carter’s proclivity to complain in the dressing room.26 In addition to coworker
complaints, the e-mail refers to Carter’s “lackluster performance”. Unlike NLRB v. Ferguson,
257 F.2d 88, 92 (5th Cir. 1958) or NLRB v. John Langenbacher Co., 398 F.2d 459, 463 (2d Cir.
1968), upon which the Acting General Counsel relies, the December 21 e-mail, on its face, cites 5
reasons for Carter’s non-renewal other than her protected concerted activity. Accordingly, I find
the e-mail is evidence of mixed motivation.
The Respondents assert that Martina and Saxe decided not to renew Carter’s contract
based on her performance and her attitude. (R. Br. 4). Turning first to Saxe’s testimony, his 10
stated rationale for Carter’s non-renewal is somewhat of a moving target. Initially he testified
that he talked with Mitria, Kelsey and Martina and then did an investigation by asking other
dancers about Carter after his conversation with Roussel and Hamilton following the December
13 meeting. Specifically, after learning Carter’s negative attitude was adversely affecting the
other dancers, he called Carter and, in an effort to protect the other dancers, simply and politely 15
told her he was not renewing her contract. (Tr. 519). When recalled to the witness stand after the
hearing reconvened, he testified the decision to non-renew Carter was made in October and
employee concerns about Carter’s complaining did not motivate this decision. (Tr. 591–592).
Saxe’s testimony about Carter’s non-renewal is also problematic for other reasons. When 20
discussing the November 18 rehearsals to replace Carter, Saxe stated he had decided in October
to let Carter’s contract expire, and by that time had already spoken to Kelsey and Mitria and
received their recommendations supporting this decision. Kelsey, however, recalled that the talk
about whether to renew Carter’s contract occurred after the December 13 meeting.27 (Tr. 307).
Moreover, Mitria testified that Carter’s dance ability was not in question, but rather her attitude 25
was the main concern. (Tr. 349–350). Much of Saxe’s testimony about the December 13
meeting likewise cannot be credited, as set forth above. In addition, as the Acting General
Counsel points out, he testified that Roussel and Hamilton were sitting behind Carter and rolling
their eyes, but the evidence shows that Carter was sitting with her back to a wall.
30
Saxe’s testimony regarding alleged counseling Carter received for her performance and
attitude presents further credibility problems. First, the testimony alone, aside from any
credibility determination, shows that Saxe viewed Carter’s “attitude” and not just her
performance, as problematic. Saxe then testified there were several “write-ups” yet none could
be located. Carter specifically recalled meeting with Resler and Ryan at DSP to sign her new 35
contract, but testified she was not counseled on her performance or attitude. Resler, a current
employee, was not called as a witness at the hearing. See International Automated Machines,
285 NLRB 1122, 1123 (1987) (adverse inference appropriate when party fails to call witness

25 I consider this testimony not for the truth of the matter asserted, but as an example Kelsey
conveyed regarding the problems other employees were having with Carter backstage.
26 At least some Carter’s complaints in the dressing room were concerted, as is clear from Palsha’s
testimony that some of the other dancers “would go along with it” and Roussel’s testimony that “there
were times when she did have valid – valid points, and there were complaints made by her and other
people as well . . ..” (Tr. 375, 405). It has not been established, however, that Saxe knew the concerted
nature of the complaints in the dressing room.
27 He relayed the complaint from the dancer whose Thanksgiving was ruined to Saxe, which
obviously occurred after October.
JD(SF)–18-13
21
who “may reasonably be assumed to be favorably disposed to the party”). Accordingly, I find
Carter was not disciplined prior to her non-renewal, and I credit her testimony that nobody
counseled her about her attitude.
Saxe’s testimony about how he conveyed the non-renewal to Carter likewise fails to 5
withstand scrutiny. He was not certain about the precise chain of events, but thought he had
called Carter before sending her the December 21 e-mail. His e-mail, however, references a
failed attempt to talk to Carter in person the previous night, but does not reference a telephone
conversation earlier that day. Carter’s version of events, that she learned of her non-renewal
from the e-mail, is credited both because her testimony was unequivocal and is more inherently 10
plausible. Saxe’s testimony that Carter screamed into the phone and was so loud that Smith
overheard him is likewise not credited. Smith, who was called as a witness, did not testify about
this incident. See Colorflo Decorator Products, 228 NLRB 408, 410 (1977) (an adverse
inference is appropriate where respondent failed to question its own witness about matters which
would normally be thought reasonable). Moreover, Saxe’s testimony that he feared Carter would 15
do something violent based on her tone during the conversation does not square with his
undisputed request that she finish out her contract.28
The timing of events makes it clear that the decision to allow Carter’s contract to expire
was not finalized until after the December 13 meeting. Saxe solicited feedback from the dance 20
captains regarding whether to renew Carter’s contract after this meeting, an action he would not
have taken if the decision was a fait accompli.29
Carter also recalled telling Kelsey that she knows she is outspoken but tries to voice
concerns in a positive manner. Kelsey responded by stating, “Unfortunately David flies off the 25
handle and doesn’t like it when people talk back to him.” (Tr. 125, 215). Kelsey, who was
called as a witness, did not deny making this statement, and I therefore credit Carter’s testimony.
See Colorflo, supra.
Finally, I have considered the contract provision, noted above, prohibiting dancers from 30
discussing their wages and working conditions, and threatening contract termination and
monetary sanctions for any contract violation. This evidence, along with Saxe’s description of
the complaints the dancers voiced as “bitching,” shows the Respondents take a dim view of
protected concerted activity among the dancers.
35
Based on the foregoing, I find Carter’s protected concerted complaints were a motivating
factor in the decision to let her contract expire. Webco Industries, 334 NLRB 608, fn. 3 (2001).
As such, the burden of persuasion shifts to the Respondent to show that Carter’s contract would

28 The Acting General Counsel also notes that Saxe’s desire to have Carter finish out her contract
casts doubt on the Respondents’ claim that the Martina held the November 18 audition in part to replace
Carter. No evidence was adduced to determine whether the audition resulted in any dancers deemed to be
a good fit for the show, however. Without this evidence, I cannot draw such a conclusion.
29 The Acting General Counsel also notes that the contract may be terminated with two-weeks’ notice
and Martina had taken unilateral action in terminating dancers mid-contract in the past. I do not find this
discredits Martina’s testimony regarding his concerns about Carter’s dance style. He did not point to
anything drastic about her performance that would render suspicious his absence of immediate unilateral
action, particularly considering he does not usually terminate dancers.
JD(SF)–18-13
22
not have been renewed even absent her protected concerted activity. See DirecTV U.S. DirecTV
Holdings, LLC, 359 NLRB No. 54, slip op. at 4 fn. 18 (2013); Signature Flight Support, supra.
As noted above, the Respondents assert two reasons for Carter’s termination: her dance
style and her attitude. Saxe’s testimony after the hearing was reconvened, i.e. that Carter’s 5
complaining did not factor into the decision to let her contract expire, comports with that of
Martina, who also testified when the hearing reconvened. As set forth in the statement of facts,
Martina’s primary concern with Carter was her dance style and her performance in the show. He
also had concerns about her attitude and ability or willingness to take instruction and had
recommended letting Carter’s initial contract expire. According to Martina, he again informed 10
Saxe he wanted to replace Carter in October or November 2011; Saxe agreed, but decided to let
her contract expire rather than give her notice and terminate her at the time. I found Martina to
be a very credible witness based his thoughtful and forthright demeanor as well as the detailed
and consistent quality of his testimony. Though Martina is the choreographer for some of Saxe’s
shows, I do not find he is beholden to Saxe in the same way a subordinate employee would be. 15
He is not present at Vegas! The Show on a regular basis, and he choreographs shows other than
Saxe’s.
My belief of Martina’s testimony, coupled with the serious credibility problems of Saxe’s
testimony, presents a conundrum. On the one hand, I do not discredit Martina only because 20
Saxe’s testimony changed to better align with Martina’s recollection of events. Saxe’s testimony
in general was often equivocal, imprecise, and uncertain.30 As noted, I found Martina to be
credible and I believe his desire to replace Carter in Vegas! The Show was based on legitimate
concerns about her dance style and her attitude. On the other hand, Martina had recommended
Carter’s non-renewal in the past to no avail. Despite Martina’s testimony that it was his decision 25
not to renew Carter’s last contract, Saxe was plainly the ultimate decision-maker, regardless of
what he may have told Martina or led him to believe. While I do not doubt that Saxe valued
Martina’s input, it was clearly not the only thing he considered.
The only one way to square Saxe’s internally inconsistent testimony with the other 30
evidence, including the timing of events, the contents of the December 21st e-mail, and witness
testimony, is to discredit Saxe’s later version of events.31 More pointedly, Saxe’s testimony that
he did not consider the input he received about Carter’s complaints and the atmosphere she
fostered backstage is unworthy of credence in light of all the evidence. As noted, I credit the
testimony from Carter’s coworkers and the dance captains that her pervasive complaining 35
created a negative atmosphere backstage. The dance captains both specifically recalled
informing Saxe about Carter’s attitude and its impact on the other dancers when giving input to
him, in late 2011, during a discussion of whether or not to renew Carter’s contract. Martina also
relayed this information to Saxe, along with his reiterated concerns about her dance style.
Though Saxe’s testimony is inconsistent, the testimony from the witnesses who provided input 40
into the decision to let Carter’s contract expire is not.32

30 At various points in the trial, Saxe noted his ADHD, medication for allergy/sinus problems were
impacting his concentration.
31 I also consider here the concerns the Acting General Counsel raises about the audition, including
the non-specific nature of the advertisement and the fact that Saxe did not know who replaced Carter.
32 Though I do not pass on whether Kelsey or Mitria are statutory supervisors, their testimony that
they provided input to Saxe regarding whether or not to renew dancers’ contracts is undisputed.
JD(SF)–18-13
23
The Acting General Counsel argues that Mitria and Kelsey’s testimony is inconsistent,
pointing to the discrepancy between Martina and Kelsey’s testimony about Carter having
problems with her dance style and Mitria’s testimony that Carter’s dance ability was not an issue.
As noted in the statement of facts, Martina is responsible for the dancers’ artistic and stylistic 5
performance while dance captains’ are concerned with the technical aspects of the dancers’
performance. Martina noted that Carter provided good and consistent energy and believed her
dance style may be well suited for other shows, just not one that required the adaptations Vegas!
The Show requires. It is not material that Kelsey noticed some of the style concerns that
troubled Martina. Given the facts of this case, I do not find this testimony inconsistent.10
As noted above, Roussel and Hamilton directly told Saxe about their problems with
Carter’s negativity in the dressing room after the December 13 meeting. While I discredit Saxe’s
testimony about where the dancers were sitting when they were rolling their eyes as Carter
voiced complaints, Rousel’s testimony that she met with Saxe after the meeting and informed 15
him that Carter created a negative backstage environment is unrefuted.33 That many of the
dancers also were bothered by Carter’s negativity backstage, regardless of whether or not they
liked her personally, is clear from the testimony of Roussel, Van Samback, Palsha, Mitria and
Kelsey. While some of the negativity resulted from complaints about working conditions shared
by dancers other than just Carter, the message conveyed up the chain was that of frustration 20
because of the environment Carter fostered backstage by the pervasiveness and perceived minor
nature of many of her individual complaints. Though it is a fine line, coworker complaints about
a fellow employee’s constant complaining about work and working conditions can be a
legitimate consideration. See Good Samaritan Hosp., 265 NLRB 618, 627 (1982); Desert
Construction, 308 NLRB 923 (1992). Particularly considering the context of this case is a live 25
show, I find such complaints are a legitimate consideration.
Carter spoke the most at the December 13 meeting. Boychoure, however, requested
holiday pay and incentive pay, and Nowak also spoke up at the meeting. Though Saxe perceived
Boychoure’s concerns as an “attack” and their exchange was described tense, no negative action 30
was taken against her. I find that Carter’s concerted complaints at the December 13 meeting,
without more, would not have resulted in non-renewal of her contract. While I find the
complaints did not endear Carter to Saxe, I also find that Martina’s issues with Carter’s dance
style, when combined with the input from the dancers and dance captains about her attitude and
its impact on the backstage environment, would have led to her non-renewal even had she not 35
engaged in protected concerted activity.
Contrary to the arguments of the Acting General Counsel, I do not find Respondent
condoned Carter’s poor performance and attitude. Under well-established Board precedent, the
“doctrine of condonation” applies where there is clear and convincing evidence that the 40
employer has agreed to forgive the misconduct, to ‘wipe the slate clean,’ and to resume or
continue the employment relationship as though no misconduct occurred.” United Parcel
Service, 301 NLRB 1142, 1143 (1991) (footnote omitted); Fineberg Packing Co., 349 NLRB
294, 296–297 (1989). “[C]ondonation may not be lightly presumed from mere silence or
equivocal statements, but must clearly appear from some positive act by an employer indicating 45

33 It is also supported by Palsha’s testimony that there was a lot of eye-rolling. (Tr. 405).
JD(SF)–18-13
24
forgiveness and an intention of treating the guilty employees as if their misconduct had not
occurred.” Fineberg Packing, supra, (quoting PlastiLine, Inc. v. NLRB, 278 F.2d 482, 487 (6th
Cir. 1960)). Here, the record is insufficient to establish, by clear and convincing evidence, that
the Respondents intended to condone Carter’s performance. Though her contract was renewed
and then extended, she was given notes from the dance captains about how to improve and 5
Martina had spoken to her about her dance style. I likewise do not find hiring Carter for the
BeatleShow was condonation. It does not follow that problems with Carter’s dance style in
Vegas! The Show would result in failure to consider her for the BeatleShow, as the dancing in
the two shows is very different.34 There was nothing concrete Carter did that was forgiven and
then used against her, and I find the doctrine of condonation has not been established by clear 10
and convincing evidence.
Assessing the evidence in this case was not an easy task, largely due to the nature of
Saxe’s testimony. That Saxe, the ultimate decision-maker, has provided inconsistent testimony
as to his reasons for failing to renew Carter’s contract is very troubling. Were I to rest my 15
decision solely on Saxe’s testimony weighed against Carter’s, the outcome would favor Carter.
In the end, however, I am persuaded by the evidence that Saxe based his decision on input from
Martina, Mitria and Kelsey, and the other dancers, whose testimony I credit. I find the
preponderant evidence shows that without this input, Carter would not have been terminated for
her protected concerted complaints.20
Based on the foregoing, I recommend dismissal of complaint paragraph 6(e).
c. Alleged Overly-Broad Rule
25
The complaint, at paragraph 4(d)(1), alleges that Saxe’s December 21 e-mail
promulgated and enforced an overly-broad and discriminatory rule prohibiting employees from
engaging in concerted activities. The e-mail instructs Carter to “cease all of the complaining in
the dressing room.” Because I have found at least some of Carter’s complaints in the dressing
room were concerted in nature, I find the e-mail violates the Act as alleged.30
d. Alleged Threat of Non-Renewal
Paragraph 4(d)(2) of the complaint alleges that Saxe’s December 21 e-mail threatens
employees that concerted activity will result in non-renewal of employees’ contracts, resulting in 35
their discharge. The Acting General Counsel makes no argument in support of this allegation.
Though I have found Carter’s discharge does not violate the Act, I find that the directive to
“cease all complaints in the dressing room” in the context of a letter stating Carter’s contract is
not being renewed would reasonably construed as a threat. Accordingly, I find the Respondents
violated the Act as alleged. 40
4. Carter’s Discharge from the BeatleShow
Complaint paragraph 4(f) alleged that Carter was discharged from the BeatleShow in
violation of Section 8(a)(1) of the Act. 45

34 As McCoy noted, dancing is not really critical in the BeatleShow. (Tr. 441).
JD(SF)–18-13
25
a. Employee or Independent Contractor
The Respondents assert that Carter’s status at the BeatleShow was that of an independent
contractor, and she therefore lacks standing to assert her discharge was unlawful. As the 5
Respondents seek to exclude Carter from the Act’s protection, it is their burden to prove she was
an independent contractor. BKN, Inc., 333 NLRB 143, 144 (2001).
To determine whether an individual is an independent contractor or an employee, the
Board applies the common-law test of agency, assessing “all of the incidents of the relationship . 10
. . with no one factor being decisive.” NLRB v. United Ins. Co., 390 U.S. 254, 258 (1968), enfg.
154 NLRB 38 (1965). Factors relevant to this determination include: (1) whether the putative
employer has the right to control the manner and means of performance of the job; (2) whether
the individual is engaged in a distinct occupation or business; (3) whether the individual bears
entrepreneurial risk of loss and enjoys entrepreneurial opportunity for gain; (4) whether the 15
employer or the individual supplies the instrumentalities, tools, and place of work; (5) the skill
required in the particular occupation; (6) whether the parties believe they are creating an
employment relationship; (7) whether the work is part of the employer's regular business; (8)
whether the employer is “in the business”; (9) the method of payment, whether by time or by the
job; and (10) the length of time the individual is employed. Lancaster Symphony Orchestra, 357 20
NLRB No. 152, at slip op. at 4 (2011). In Lancaster Symphony Orchestra, the Board concluded
that an employer-employee relationship existed between an orchestra and its musicians. Id. at 9.
The Board so held, applying the aforementioned factors, finding that the orchestra possessed the
right to control the manner and means by which the performances were accomplished by
choosing the music, deciding how it would be played, when and how the performance would be 25
rehearsed, and how the musicians would appear on stage. The Board also noted that musicians
did not bear any entrepreneurial risk of loss or enjoy any opportunity for entrepreneurial gain—
the musician’s services were a part of the orchestra’s routine business with the musicians paid on
an hourly basis. Id.
30
In the instant case the Respondent exercises rights to control the manner and the means of
performance. Dancers have no control over the start time of the show and must be at the theater
at a certain time prior to the show. The dancers are not permitted to sell photos of themselves to
customers after the show. They cannot lease or subcontract out their positions in the BeatleShow
Also, dancers wear provided costumes and are required and instructed to move props. See Prod. 35
Indus., Inc., 178 NLRB 707, 708–709 (1969) (entertainers were independent contractors based
on large sums of money they spent on costuming and advertising; autonomy of performance).
Unlike in Prod. Indus., Inc., the BeatleShow dancers were not required to pay for their own
costuming or promotional material. Additionally, the dancers bear no entrepreneurial risk.
Performers, including Carter, are paid an agreed upon rate per show regardless of how well the 40
show does. The Respondent provides the place of work and the practice space and audition
space. Clearly, the work is part of the Respondent’s regular business. Finally, it is important to
note that while the dancers had one portion of the BeatleShow where they could dance freestyle,
the majority of the show was choreographed. Martina—the choreographer and director of
Vegas! The Show—also conducted auditions for the BeatleShow and was consulted regarding45
choreography and make-up style. Finally, while dancers in the BeatleShow receive 1099 forms
documenting their pay, the term of employment with the BeatleShow is indefinite.
JD(SF)–18-13
26
The Respondents contend the “right-to-control” test supports the conclusion that Carter is
an independent contractor rather than an employee. I do not agree. The evidence establishes that
the Respondents reserve the right to control the end results to be achieved and the means by
which it is achieved, as described above. Thus, under the right-to-control test, it is apparent that 5
Carter was an employee rather than an independent contractor. Nevada Resort Ass’n, 250
NLRB 626, 642 (1980) (noting an independent contractor relationship is found to exist when the
employer reserves only the right to control the end results to be achieved but does not control the
means by which it is to be achieved). The Respondent contends that the dancers in the
BeatleShow are allowed to freestyle and do not have set routines. The further assert the manner 10
in which the dancers are managed indicates minimal control and supervision. However, as noted
in Nevada Resort Ass’n, it is not the actual exercise of the control but the right to exercise control
which is the governing consideration. Id. at 645. Thus, the range of control actually exercised by
the Respondents is not outcome determinative. In any event, only a small part of the dancing
was freestyle, with the majority choreographed. Finally, the Respondents’ contention that the 15
dancers are allowed to work other jobs is equally unpersuasive in finding that Carter was an
independent contractor. See Lancaster Symphony Orchestra, supra. slip op. at 7 (2011). Based
on the foregoing, I find Carter was an employee in the BeatleShow.
b. Carter’s Discharge20
Carter’s discharge from the BeatleShow followed from her Vegas! The Show contract not
being renewed. The Wright Line analysis applies.
In addition to the protected concerted activity detailed above, I find that Carter engaged 25
in protected concerted activity when she complained about moving the arrow on the BeatleShow
set. McCoy testified that he first spoke with Carter in connection with her refusal to move the
arrow across the stage. Carter was not the only person who complained about moving the arrow,
which had fallen on Van Samback. I find, however, that the complaint about the arrow is
attenuated from the decision to discharge Carter from the BeatleShow. 30
By the time Saxe informed McCoy that Carter was not being renewed for Vegas! The
Show, McCoy had already decided to limit her schedule in the BeatleShow. McCoy’s stated
reason was that he thought some of the other dancers had more of the pretty girl-next-door look
he wanted. The Acting General Counsel asserts that this rationale is suspect, because McCoy 35
saw her during rehearsals and did not raise this as a concern. McCoy never asserted that Carter
was unqualified for the BeatleShow and he did not exaggerate his testimony regarding her look.
The evidence shows he found her suitable for the show but preferred some of the other dancers. I
credit his testimony, as it was consistent and clear, and is not refuted.
40
The Acting General Counsel further asserts that I should draw an adverse inference based
on Martina’s failure to testify about his evaluation of Carter during rehearsals for the
BeatleShow. Neither McCoy nor Saxe raised issues with Carter’s dancing in the BeatleShow,
however, and McCoy noted Carter was a “qualified dancer.” (Tr. 441). McCoy is the visionary
behind the BeatleShow, and therefore Martina’s failure to find Carter’s look was not the best fit 45
for the show does not warrant an adverse inference. It is clear that Carter’s non-renewal for
Vegas! The Show spurred the decision to discharge her from the BeatleShow. However, because
JD(SF)–18-13
27
I do not find her non-renewal for Vegas! The Show was retaliation based on her protected
concerted activities there, and I do not find McCoy independently retaliated against her, I find
the discharge did not violate the Act as alleged. Accordingly, I recommend dismissal of this
complaint allegation.
5
CONCLUSIONS OF LAW
1. The Respondents are a single employer engaged in commerce and in business
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
10
2. The Respondents violated Section 8(a)(1) of the Act by maintaining overly broad
and discriminatory clauses in its employment contracts requiring wages and other terms and
conditions of employment to remain confidential and requiring employees to acknowledge their
employment is non-union with penalties for breach of any contract provision.
15
3. The Respondents violated Section 8(a)(1) of the Act by prohibiting employees
from engaging in protected concerted activities and threatening and demeaning employees for
engaging in protected concerted activities as set forth herein.
4. The Respondents did not engage in any other of the unfair labor practices alleged 20
this consolidated proceeding.
5. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
25
REMEDY
Having found the Respondent has engaged in certain unfair labor practices, I find they
must be ordered to cease and desist and to take certain affirmative action, including the posting
of the customary notice, designed to effectuate the policies of the Act. 30
Having unlawfully promulgated and maintained a contract provision prohibiting
employees from discussing wages or working conditions, the Respondents will be ordered to
rescind the provision and cease and desist from enforcing it.
35
Having unlawfully promulgated and maintained a contract provision requiring employees
to acknowledge they are not under the jurisdiction of a union and threatening penalties for
breach, the Respondents will be ordered to rescind the provision and cease and desist from
enforcing it.
40
Having engaged in unlawful prohibition of employees from engaging in protected
concerted activities and threatening and demeaning of employees engaged in protected concerted
activities, the Respondent will be ordered to cease and desist from these actions.
I will order that the employer post a notice in the usual manner, including electronically 45
to the extent mandated in J. Picini Flooring, 356 NLRB No. 9 slip op. at 5-6 (2010). Also in
accordance with that decision, the question as to whether a particular type of electronic notice is
JD(SF)–18-13
28
appropriate should be resolved at the compliance stage. Id, slip op. at p. 3. See, e.g., Teamsters
Local 25, 358 NLRB No. 15 (2012).
Accordingly, on the above findings of fact and conclusions of law and on the entire
record, I issue the following recommended355
PROPOSED ORDER
The Respondents, David Saxe Productions, LLC, Vegas! The Show, LLC, and Fab Four
Live, LLC, Las Vegas, Nevada, its officers, agents, successors, and assigns shall:10
1. Cease and desist from:
(a) Enforcing the contract provision prohibiting employees from discussing their wages
and working conditions with each other. 15
(b) Enforcing the contract provisions requiring employees to acknowledge they are non-
union and threatening penalties for breach.
(c) Prohibiting employees from engaging in protected concerted activities.20
(d) Threatening employees with adverse consequences for engaging in protected
concerted activities.
(e) Demeaning employees for engaging in protected concerted activities.25
(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:30
(a) Rescind any contract provision prohibiting employees from discussing their wages
and working conditions with each other.
(b) Rescind the contract provisions requiring employees to acknowledge they are non-35
union and threatening penalties for breaching this requirement.
(c) Within 14 days after service by the Region, post at its Las Vegas, Nevada facilities,
including South Commerce Street and the Saxe Theater, copies of the attached notice marked
“Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 28, 40
after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to physical posting of paper

35 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.
JD(SF)–18-13
29
notices, notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the 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, the Respondent has gone out of business or closed the facility 5
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since September 27, 2011.
(d) Within 21 days after service by the Region, filed with the Regional Director for 10
Region 28 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it alleges
violations of the Act not specifically found.15
Dated, Washington, D.C. May 7, 2013
_____________________20
Eleanor Laws
Administrative Law Judge
APPENDIX
Notice To Employees and Members
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 on your behalf with your employer
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 threaten or demean you for engaging in protected concerted activities,
including complaining to us about your wages, hours, and working conditions by requesting pay
for rehearsal time, days off, holiday pay, time and half pay for nights when one show is
performed, loosening “meet and greet” requirements in order to allow employees to properly
stretch and take a break in between shows, and requesting additional assistance by hiring more
full-time understudy employees as opposed to part-time or swing employees.
WE WILL NOT prohibit you for engaging in these activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of rights guaranteed by Section 7 of the Act.
DAVID SAXE PRODUCTIONS, LLC and
VEGAS! THE SHOW, LLC, Single Employer
(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