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

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 100 (N.L.R.B. 2016)

364 NLRB No. 100
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
David Saxe Productions, LLC and Vegas! The Show,
LLC, Joint/Single Employers and Anne Tracy
Carter
David Saxe Productions, LLC and Fab Four Live,
LLC, Joint/Single Employers and Anne Tracy
Carter. Cases 28–CA–075461 and 28–CA–084151
August 26, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On May 7, 2013, Administrative Law Judge Eleanor
Laws issued the attached decision. The General Counsel
filed exceptions and a supporting brief, and the Respond-
ents filed an answering brief. The Respondents filed
cross-exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions only to the extent consistent with this Deci-
sion and Order, and to adopt the recommended Order as
modified and set forth in full below.2
I. INTRODUCTION
At issue in this case are the Respondents’ statements to
employees at a meeting where the employees, including
Charging Party Anne Carter, raised concerns about their
terms and conditions of employment, the Respondents’
statements to Carter in a subsequent email, and the dis-
charges of Carter from two of the Respondents’ produc-
tions. David Saxe is the CEO and owner of Respondent
David Saxe Productions, LLC. Saxe also has ownership

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
We note that DirecTV U.S. DirecTV Holdings, 359 NLRB No. 54
(2013), cited by the judge, was reaffirmed in 362 NLRB No. 48 (2015).
In addition, we do not rely on Teamsters Local 25, 358 NLRB 54 (2012),
cited by the judge.
2 We shall amend the judge’s conclusions of law and remedy to con-
form to our findings. We shall also modify the judge’s recommended
Order to conform to our findings, to the Board’s standard remedial lan-
guage, and in accordance with our decision in Don Chavas, LLC d/b/a
rights in two Las Vegas shows, Vegas! The Show and The
BeatleShow. Saxe is the owner and managing member of
Respondent Vegas! The Show, LLC, the corporate entity
for Vegas! The Show. He serves as the producer for Ve-
gas! The Show, which pays homage to the entertainers that
made Las Vegas famous from the 1940s to the 1970s and
features singers and showgirl dancers. In addition, Saxe
and Terry “Mick” McCoy are equal co-owners of Re-
spondent Fab Four Live, LLC, the corporate entity for The
BeatleShow.3 The BeatleShow stars four men who portray
the Beatles and includes a number of other characters and
dancers. Anne Carter is a dancer in both Vegas! The Show
and The BeatleShow. Carter signed an initial contract with
Vegas! The Show in May 2010, a second contract in De-
cember 2010, and an extension of her second contract in
April 2011. Although there are no employment contracts
for dancers in The BeatleShow, Carter consistently per-
formed as a dancer in that production from spring 2011 to
December 2011.4
As found by the judge, and discussed more fully below,
on December 13, 2011,5 Saxe held a meeting with the Ve-
gas! The Show dancers where Carter and other dancers
raised a number of issues regarding their terms and condi-
tions of employment. On December 21, Saxe, by email,
notified Carter that he would not be renewing her contract
with Vegas! The Show when it ended on January 2, 2012,
effectively discharging her from the production. Shortly
thereafter, in a telephone conversation, Saxe informed
Carter that she had been taken off the schedule for The
BeatleShow. Thereafter, Carter did not perform work in
either production.
We agree with the judge, for the reasons she states, that
the Respondents violated Section 8(a)(1) during the De-
cember 13 meeting by prohibiting employees from engag-
ing in protected concerted activity and by disparaging em-
ployees, impliedly threatening them with discharge, and
threatening them with unspecified reprisals because they
engaged in protected concerted activity. We also agree
Tortillas Don Chavas, 361 NLRB No. 10 (2014). In addition, we shall
substitute a new notice to conform to the Order as modified and in ac-
cordance with our decision in Durham School Services, 360 NLRB No.
85 (2014).
3 The judge found that Respondents David Saxe Productions, LLC,
Vegas! The Show LLC, and Fab Four Live, LLC are a single employer.
The Respondents do not except to this finding. We therefore find it un-
necessary to pass on the General Counsel’s contention that these three
entities are also joint employers, as such a finding would not materially
affect the remedy. See Turtle Bay Resorts, 353 NLRB 1242, 1242 fn. 5
(2009), incorporated by reference in 355 NLRB 706 (2010), enfd. 452
Fed.Appx. 433 (5th Cir. 2011).
4 The Respondents do not except to the judge’s finding that Carter was
an employee of The BeatleShow.
5 Unless otherwise noted, all dates are 2011.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
with the judge’s dismissal of the allegation that the Re-
spondents violated Section 8(a)(1) during the December
13 meeting by promulgating and enforcing an overly
broad and discriminatory rule prohibiting employees from
complaining about wages, hours, and terms and conditions
of employment. In addition, we agree with the judge that
the Respondents violated Section 8(a)(1) in the December
21 email by threatening that failure to cease engaging in
protected activity would result in discharge.6 Further, we
agree with the judge that the Respondents violated Section
8(a)(1) by maintaining the “non-union” provision in their
employment agreements, requiring employees to
acknowledge that their employment is not under the juris-
diction of any union, with penalties for breaching this pro-
vision.7 For the reasons discussed below, however, we
find, contrary to the judge, that the Respondents violated
Section 8(a)(1) by discharging Carter from Vegas! The
Show and The BeatleShow for engaging in protected con-
certed activity.8
II. FACTS
A. Carter’s Background with Vegas! The Show and
The BeatleShow
Auditions for Vegas! The Show were held from late
April until mid-June 2010. Together with Saxe, Tiger
Martina, the show’s choreographer, selected the initial
cast of four men and eight women. One of those women
was Carter, who signed an initial contract in May 2010
and performed with the show until her contract was not
renewed in December 2011. During this time, Carter per-
formed approximately 12 shows per week. Among the
dancers, Carter was perceived to be hardworking but as
frequently “complaining” in the dressing room about top-
ics ranging from boyfriends to working conditions.
According to Martina, a few months into the show, he
developed concerns about Carter. Specifically, he did not
feel that Carter was a good fit because she did not have a
strong grip on the show’s style, she appeared stiff, and she
was not versatile. Martina directed dance captains Ryan
Kelsey and Claudia Mitria to work with Carter. When

6 The judge found that Saxe’s December 21 email to Carter, instruct-
ing her to cease all complaining in the dressing room, in the context of
telling her that her contract would not be renewed, constituted an unlaw-
ful threat that failing to cease engaging in protected activity would result
in discharge. Unlike our dissenting colleague, we adopt the judge’s find-
ing of the violation. The Respondents’ exceptions to this finding are lim-
ited to challenging the judge’s credibility determinations. As stated
above at fn.1, the Respondents’ arguments in this regard are without
merit. By ordering the Respondents to cease and desist making any sim-
ilar instructions in the future, we fully remedy the violation, regardless
of whether those instructions take the form of a threat or a work rule.
Therefore, we need not and do not pass on the judge’s additional finding
that Saxe’s comments in the December 21 email also constituted the
promulgation of an unlawful work rule.
Carter’s contract first came up for renewal in December
2010, Martina told Saxe that he wanted to let Carter’s con-
tract expire because she did not do some of the choreogra-
phy correctly and had attitude issues backstage. In addi-
tion, in October or November 2011, Martina again in-
formed Saxe that he wanted to replace Carter because of
her performance and attitude issues. Likewise, Kelsey be-
gan expressing concerns to Saxe and Martina about
Carter’s performance and attitude in approximately De-
cember 2010. As dance captain, Kelsey was tasked with
providing the dancers “notes” about their performance and
what they could improve. According to Kelsey, Carter
was defensive in receiving the notes and was also a nega-
tive influence backstage. Despite these concerns, Carter
was never disciplined for her performance or counseled
about her backstage attitude. Moreover, although aware
of the concerns, Saxe overruled them and offered Carter a
new contract for Vegas! The Show in December 2010 and,
in April 2011, extended her contract until December 2011.
In spring 2011, Saxe decided to use dancers from Ve-
gas! The Show in The BeatleShow. Carter was informed
that she would dance with The BeatleShow 2–3 days per
week, in addition to her work on Vegas! The Show. Ac-
cording to McCoy, who co-owned The BeatleShow’s cor-
porate entity with Saxe, Carter was a “qualified dancer,”
but was “confrontational.” As evidence of her confronta-
tional attitude, McCoy testified about Carter raising a con-
cern, shared by other dancers, about the requirement to
move a large prop across the stage, as the prop had previ-
ously fallen on a dancer. Carter initially asked a stagehand
to move the prop for her, but ultimately, at McCoy’s di-
rection, agreed to move it herself. McCoy apparently also
did not believe Carter possessed the “look” he thought best
for The BeatleShow. As a result, in the months before
Carter’s discharge, he limited Carter’s performance
schedule in The BeatleShow.
7 Our dissenting colleague offers a non-coercive interpretation of the
“non-union” provision, based on his understanding of employment prac-
tices in the entertainment industry. The Respondent, however, does not
advance such an argument, nor is there support in the record for it. In
any case, under the circumstances here (including the penalties set forth
in the employment agreement for breaching the “non-union” provision),
we find that employees would reasonably construe the provision as co-
ercive, even if a noncoercive interpretation, like that advanced by our
colleague, were conceivable.
8 In the absence of exceptions, we adopt the judge’s finding that the
Respondents violated Sec. 8(a)(1) by maintaining the non-disclosure
clause in their employment contracts and the judge’s dismissal of the al-
legation that the Respondents violated Sec. 8(a)(1) during the December
13 meeting by interrogating employees about their protected activity.
DAVID SAXE PRODUCTIONS, LLC 3
B. Saxe’s December 13 Meeting with the Vegas! The
Show Dancers
Following the November 2011 termination of Darlene
Ryan, company and production manager for Vegas! The
Show, many of the dancers had concerns about who they
should approach with problems or issues with the show.
On December 13, at the dancers’ request, Saxe went to the
women’s dressing room after the show to speak with them
about this matter. Carter, who took the lead in responding,
began by noting Ryan’s recent termination and stating that
cast morale was low. She told Saxe that the dancers
wanted someone in the chain of command to whom they
could voice issues and concerns. Dancer Natacha Boy-
choure inquired about the potential for incentives for
dancers who had been with the show from the beginning,
as well as rehearsal and holiday pay.
In response, Saxe asked why the dancers were “bitch-
ing” and, apparently rhetorically, asked whether their em-
ployment contracts provided for these things. Boychoure
assured Saxe that they were not “bitching,” but instead had
legitimate concerns about their working conditions.
Carter then reiterated the request for rehearsal pay, noting
that the dancers’ employment contracts stated the matter
was within Saxe’s discretion. Saxe responded, “All you
do is bitch, bitch, bitch. I give you a job and all you do is
bitch.” Carter and dancer Amanda Nowak again assured
Saxe that they were not bitching and just wanted open
communication and to have their concerns addressed.
Carter then raised several issues, including that the re-
quirement to dance 6 nights per week did not leave suffi-
cient time to attend to injuries, the first show often started
late leaving insufficient time to prepare and stretch for the
second show, and doing “vanities”9 before the show cut
into the dancers’ preparation time. Saxe told the dancers
that he understood and would try to work on scheduling
issues, but stated that he did not want “all this bitching.”10
Following the December 13 meeting, two dancers ap-
proached Saxe and complained about Carter’s attitude in
the dressing room. Some time thereafter, Saxe solicited
feedback from Martina and the dance captains about
Carter’s performance. Martina and Kelsey recommended
that Carter’s contract not be renewed, reiterating the same
performance and attitude concerns they had been express-
ing since May 2010 and December 2010, respectively.
Mitria recommended that Carter’s contract not be renewed
based on her attitude issues alone.

9 The female dancers are required to do “vanities” before the show,
which entail one dancer getting ready in a pretend dressing room in the
audience’s view. The vanities last for about 10 minutes and are on a ro-
tating schedule.
10 As stated, we adopt the judge’s findings that Saxe’s comments at
the December 13 meeting violated Sec. 8(a)(1) by prohibiting employees
About a week after the December 13 meeting, Carter
noticed Saxe meeting with the other dancers about their
contracts. On December 21, she emailed Saxe stating that
she had not had a chance to speak with him and asking if
she could schedule a time to do so. Saxe responded with
an email entitled “Not renewing you,” which stated:
Hi Anne,
Due to your constant negative attitude and lackluster
performance I will not be renewing your contract for Ve-
gas The Show. Your contract ends January 2. I hope that
you are professional enough to finish your contract and
I would appreciate it of [sic] you could cease all of the
complaining in the dressing room. Your fellow cast
members would really appreciate it. Constant complain-
ing and negativity just cant [sic] 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 Saxe
Around December 23, Carter called Saxe to say that she
felt blindsided by her discharge. According to Carter,
Saxe said that he knew her “type,” that all she did was
bitch, that she was the most negative person in the dress-
ing room, that none of the other dancers could stand her,
and that Martina thinks she’s a “pain in the ass.” After
this conversation with Carter, Saxe called McCoy to see if
McCoy still wanted Carter in The BeatleShow. McCoy
said that he did not. At the hearing, McCoy testified that
he told Saxe that Carter was “problematic” and that he
wanted to see other dancers in The BeatleShow. Saxe then
called Carter back, asked if she would be finishing out her
contract in Vegas! The Show, and informed her that she
would no longer be performing in The BeatleShow. A
couple of days later, Carter ran into Mitria and expressed
her concern that she had not been warned that anything
was wrong. Carter also spoke with Kelsey, expressing
some of the same concerns. Carter recalled Kelsey saying,
“Unfortunately David flies off the handle and doesn’t like
it when people talk back to him.”
III. DISCUSSION
The judge dismissed the allegations that the Respond-
ents unlawfully discharged Carter from Vegas! The Show
and The BeatleShow because of her protected concerted
from engaging in protected concerted activity, disparaging employees
for engaging in protected concerted activity, threatening employees with
unspecified reprisal for engaging in protected concerted activity, and im-
pliedly threatening employees with discharge for engaging in protected
concerted activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
activity. For the reasons discussed below, we find merit
in the General Counsel’s exceptions to these dismissals.
A. Carter’s Discharge from Vegas! The Show
Our analysis of Carter’s discharge from Vegas! The
Show is governed by Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under that
framework, the General Counsel has the initial burden to
prove that an employee’s Section 7 activity was a motivat-
ing factor in the employer’s action against the employee.
The elements commonly required to support the General
Counsel’s initial showing are union or other protected
concerted activity by the employee, employer knowledge
of that activity, and animus on the part of the employer.
See, e.g., Libertyville Toyota, 360 NLRB No. 141, slip op.
at 4 (2014), enfd. 801 F.3d 767 (7th Cir. 2015). If the
General Counsel makes the required initial showing, the
burden shifts to the employer to prove by a preponderance
of the evidence that it would have taken the same action
even in the absence of the protected concerted activity. Id.
The employer does not meet its burden merely by estab-
lishing that it had a legitimate reason for its action; rather,
it must demonstrate that it would have taken the same ac-
tion in the absence of the protected conduct. See, e.g.,
Bruce Packing Co., 357 NLRB 1084, 1086–1087 (2011),
enfd. in pertinent part 795 F.3d 18 (D.C. Cir. 2015). If the
evidence establishes that the proffered reasons for the em-
ployer’s action are pretextual—i.e., either false or not ac-
tually relied upon—the employer fails by definition to
show that it would have taken the same action for those
reasons, regardless of the protected conduct. See Golden
State Foods Corp., 340 NLRB 382, 385 (2003), citing
Limestone Apparel Corp., 255 NLRB 722 (1981).
The judge found, the Respondents do not dispute, and
we agree that the General Counsel met his initial burden
of showing that Carter’s protected concerted activity was
a motivating factor in her discharge. Carter engaged in
protected concerted activity at the December 13 meeting
when she, together with other dancers, raised concerns to
Saxe about their working conditions. Specifically, Carter
addressed the lack of rehearsal pay and asserted that the
show’s schedule provided only limited preparation time
between performances and did not leave sufficient time
for the dancers to attend to injuries. Saxe was clearly
aware of Carter’s protected activity, as he was present at
the December 13 meeting and engaged with Carter on the
issues she raised. In addition, the Respondents’ animus is
well supported in the record. As the judge found, Saxe’s
decision not to renew Carter’s contract occurred soon after
the December 13 meeting. The Board has long held that
the timing of an adverse action shortly after an employee
has engaged in protected activity will support a finding of
unlawful motivation. See Real Foods Co., 350 NLRB
309, 312 (2007); Davey Roofing, Inc., 341 NLRB 222, 223
(2004). In addition, the judge pointed to the Respondents’
numerous contemporaneous Section 8(a)(1) violations, in-
cluding Saxe’s characterization of the dancers’ concerns
about pay and injury as “bitching” and the existence of
unlawful provisions in the dancers’ contracts, and found
that they showed that the Respondents took “a dim view
of protected concerted activity among the dancers.” It is
well established that proof of an employer’s discrimina-
tory motivation may be based on evidence of the em-
ployer’s contemporaneous commission of other unfair la-
bor practices. See, e.g., Amptech, Inc., 342 NLRB 1131,
1135 (2004), enfd. 165 Fed.Appx. 435 (6th Cir. 2006).
Furthermore, although not relied on by the judge, we infer
the Respondent’s animus from evidence that establishes
that the reasons it offered for Carter’s discharge were pre-
textual. See Fluor Daniel, Inc., 304 NLRB 970, 971
(1991), enfd. mem. 976 F.2d 744 (11th Cir. 1992). As ex-
plained below, Saxe offered shifting reasons for Carter’s
discharge and claimed to have relied on performance and
attitude problems that other witnesses, credited by the
judge, established had been present throughout Carter’s
employment. Taking into account all of the foregoing
considerations, we find that the General Counsel made a
strong showing of discriminatory motivation. See Alter-
native Energy Applications, Inc., 361 NLRB No. 139, slip
op. at 4 (2014).
Under Wright Line, the burden then shifts to the Re-
spondents to demonstrate that they would have discharged
Carter even absent her protected activity. Faced with the
General Counsel’s strong showing of unlawful motiva-
tion, the Respondent’s rebuttal burden is substantial. See
id. at 5 and cases cited therein. We find, contrary to the
judge, that the Respondents have not carried that burden.
The judge found that Saxe was the “ultimate decision-
maker” regarding Carter’s discharge, but that his stated ra-
tionale for her discharge was “a moving target” and his
testimony on the subject was “very troubling.” At the
hearing, Saxe initially testified that he made the decision
to discharge Carter after the December 13 meeting, based
on his discussions with Martina, Kelsey, Mitria, and other
dancers about Carter’s negative attitude. After being re-
called to the witness stand, however, Saxe testified that he
made the decision not to renew Carter’s contract much
earlier, in October, and did not base his decision on con-
cerns about Carter’s complaining in the dressing room.
The judge acknowledged that Saxe’s testimony regarding
the reasons for Carter’s discharge suffered from serious
DAVID SAXE PRODUCTIONS, LLC 5
credibility issues.11 Nevertheless, she credited Saxe’s in-
itial testimony because it was consistent with the testi-
mony of Martina, Mitria, and Kelsey, all of whom the
judge found to be credible. Thus, the judge found that
Martina, Mitria, and Kelsey credibly testified that they had
expressed concerns about Carter’s performance and atti-
tude to Saxe; she then found that those concerns would
have led Saxe not to renew Carter’s contract even absent
her protected concerted activity at the December 13 meet-
ing. We disagree. Although Martina, Mitria, and Kelsey
expressed concern about Carter’s performance and atti-
tude, we find, for reasons not considered by the judge, that
the circumstances of this case warrant a conclusion that
Saxe seized upon these concerns as pretext for discharging
Carter for her protected activity at the December 13 meet-
ing.
To be sure, the record reflects that Saxe sought input
from Martina and the dance captains regarding whether to
keep Carter in the days following the December 13 meet-
ing and that they all said that her contract should not be
renewed. Their input in this regard, however, was no dif-
ferent than it had been throughout Carter’s tenure with Ve-
gas! The Show. Carter’s purported performance and atti-
tude issues had been problems virtually since the begin-
ning of her employment. As noted, Kelsey had been ex-
pressing concerns about Carter’s “negativity backstage”
for nearly a year and Martina had been expressing his con-
cerns about Carter’s dancing for more than 18 months and
had previously recommended not renewing her contract.
Saxe overruled these concerns, however, and offered
Carter a new contract in December 2010 and an extension
of her contract in April 2011. In these circumstances, in
light of the judge’s finding that Saxe’s decision not to re-
new Carter’s contract was made only after, and shortly af-
ter, Carter’s protected activity at the December 13 meeting
and Saxe’s failure to explain why Carter’s performance
and attitude issues suddenly became a concern to Saxe af-
ter that meeting, we find that Saxe’s proffered reasons for
Carter’s discharge were pretextual.12

11 In discrediting Saxe’s testimony, the judge described his testimony
as a “moving target,” “inconsistent,” “problematic,” “fail[ing] to with-
stand scrutiny,” “equivocal, imprecise, and uncertain,” “very troubling,”
and “unworthy of credence.” Based on her view of Saxe, the judge stated
that were she to rest her decision solely on Saxe’s testimony, “the out-
come would favor Carter.”
12 See, e.g., Diversified Bank Installations, 324 NLRB 457, 476
(1997) (employer failed to meet rebuttal burden where it tolerated an em-
ployee’s employment shortcomings until employee engaged in protected
concerted and union activities); see also MDI Commercial Services, 325
NLRB 53, 75 (1997) (“Where an employer has tolerated less than ideal
performance, it hardly can reverse direction after a union enters the scene
and begin penalizing that union’s sympathizers for conduct which has
Our conclusion is supported by the judge’s finding that
Saxe provided shifting reasons for Carter’s discharge.
When an employer provides inconsistent or shifting rea-
sons for its actions, a reasonable inference can be drawn
that the reasons proffered are mere pretexts designed to
mask an unlawful motive. See GATX Logistics, Inc., 323
NLRB 328, 335 (1997), enfd. mem. 165 F.3d 32 (7th Cir.
1998) (published in full 160 F.3d 353 (7th Cir. 1998));
Trader Horn of New Jersey, Inc., 316 NLRB 194, 199
(1995); Dumbauld Corp., 298 NLRB 842, 848 (1990).
Here, Saxe offered two very different explanations for
Carter’s discharge. He first testified that, following the
December 13 meeting, he spoke with several dancers and
learned that Carter’s negative attitude was adversely af-
fecting them. Saxe then stated that he got the input of
Martina, Kelsey, and Mitria and investigated the com-
plaints raised by the dancers and that those were the rea-
sons for Carter’s discharge. The second time he testified,
however, Saxe stated that the decision not to renew
Carter’s contract was made in October, that an audition
was held in November to find a replacement for Carter,
and that employee complaints were “not at all” a factor in
the decision not to renew Carter’s contract. Saxe’s con-
flicting testimony leads us to the reasonable inference that
his proffered reasons for Carter’s discharge were pre-
textual, offered in an attempt to mask his actual, unlawful
motive for discharging Carter.
Having found that the proffered reasons for Carter’s dis-
charge were pretextual, we find that the Respondents nec-
essarily fail to meet their rebuttal burden and thus that
Carter’s discharge was unlawful.13 In so finding, we note
that the Act protects all employees from adverse action by
their employer based on their protected activity. In any
given case, it is the Board’s task to determine whether the
alleged discriminatee was indeed discharged because of
her protected activity, using the Board’s well-established
analytical tools. The Respondents here may have had le-
gitimate reasons for wanting to discharge Carter. But, un-
der the Act, given the clear evidence of unlawful motive,
that is not enough. See Bruce Packing, 357 NLRB at
been allowed beforehand.”), enfd. in relevant part 175 F.3d 621 (8th Cir.
1999).
13 That other employees spoke up at the December 13 meeting, as the
judge found, and were not discharged does not weigh against our finding.
See Graphic Communications Local 1-M (Bang Printing), 337 NLRB
662, 675 (2002) (“[U]nlawful motivation is not somehow disproved by
the fact that a respondent did not retaliate against each and every em-
ployee engaged in statutorily protected activities.”). Cf. McKee Electric
Co., 349 NLRB 463, 464 fn. 9 (2007) (“‘[A] discriminatory motive, oth-
erwise established, is not disproved by an employer’s proof that it did
not weed out all union adherents.’”), quoting Nachman Corp. v. NLRB,
337 F.2d 421, 424 (7th Cir. 1964). In any event, every witness who tes-
tified about the meeting agreed that Carter took the most prominent role
in articulating the employees’ concerns.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
1086–1087. Rather, the Respondents were required to
show that they actually would have discharged Carter ab-
sent her protected activity. Because the Respondents have
failed to do so, we find that Carter’s discharge was unlaw-
ful.14
B. Carter’s Discharge from The BeatleShow
Having found that the Respondents violated Section
8(a)(1) by discharging Carter from Vegas! The Show, we
find, contrary to the judge, that the Respondents also vio-
lated Section 8(a)(1) by discharging Carter from The Beat-
leShow. Like her discharge from Vegas! The Show,
Carter’s discharge from The BeatleShow is properly ana-
lyzed using the Wright Line framework. The judge found
it “clear” that Carter’s discharge from Vegas! The Show
“spurred the decision” to discharge her from The Beat-
leShow. In these circumstances, we find Carter’s dis-
charge from The BeatleShow, like her unlawful discharge
from Vegas! The Show, to be discriminatorily motivated.
Further, we find that the Respondents have failed to
prove that Carter would have been discharged from The
BeatleShow even absent her protected concerted activity.
In finding Carter’s discharge from The BeatleShow to be
lawful, the judge appears persuaded that the Respondents
would have discharged her regardless of her protected ac-
tivity because of McCoy’s testimony that he did not like
Carter’s “look” and, as a result, had already decided to
limit her performance schedule in The BeatleShow. As
explained above, under Wright Line, it is the Respondents’
rebuttal burden to establish that Carter would have been
terminated from The BeatleShow even absent her pro-
tected concerted activity. The Respondents have not car-
ried that burden. Carter was not discharged from The
BeatleShow until she was unlawfully discharged from Ve-
gas! The Show. The evidence easily satisfies us that this
prior, unlawful discharge was the decisive factor in the
second discharge. McCoy had already taken action with
respect to Carter’s “look” by limiting her performance
schedule in The BeatleShow, not by discharging her. Ac-
cordingly, we find that the Respondents violated Section
8(a)(1) by discharging Carter from The BeatleShow.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 4 and renum-
ber the subsequent paragraphs accordingly.
4. On or about December 21, 2011, the Respondents
violated Section 8(a)(1) by discharging employee Anne

14 In agreement with the judge, our dissenting colleague is not per-
suaded that either the timing of the decision to discharge Carter, or the
fact that Carter’s alleged performance problems were long-known and
long-tolerated, supports a conclusion that the Respondents’ proffered
reasons for her discharge were pretextual. We reject his position essen-
tially for the same reasons that we reverse the judge.
Carter from Vegas! The Show and The BeatleShow for en-
gaging in protected concerted activity.
AMENDED REMEDY
Having found that the Respondents have engaged in un-
fair labor practices, we shall order them to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Specifically, having found that the Respondents vio-
lated Section 8(a)(1) by discharging Anne Carter from Ve-
gas! The Show and The BeatleShow, we shall order the
Respondents to offer her full reinstatement to her former
job or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed, and to
make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her.
Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). In addition, we shall order
Respondents to compensate Carter for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award
and to file a report with the Social Security Administration
allocating the backpay to the appropriate calendar quar-
ters. We shall also order Respondents to remove from
their files any reference to Carter’s unlawful discharges
and to notify her in writing that this has been done and that
the unlawful discharges will not be used against her in any
way.
In accordance with our recent decision in King Soopers,
Inc., 364 NLRB No. 93 (2016), we shall also order the Re-
spondents to compensate Carter for her search-for-work
and interim employment expenses regardless of whether
those expenses exceed interim earnings. Search-for-work
and interim employment expenses shall be calculated sep-
arately from taxable net backpay, with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.15
ORDER
The National Labor Relations Board orders that the Re-
spondents, David Saxe Productions, LLC, Vegas! The
Show, LLC, and Fab Four Live, LLC, Las Vegas, Nevada,
their officers, agents, successors, and assigns shall
1. Cease and desist from
15 For the reasons stated in his separate opinion in King Soopers, su-
pra, slip op. at 9–16, our dissenting colleague would adhere to the
Board’s former approach, treating search-for-work and interim employ-
ment expenses as an offset against interim earnings.
DAVID SAXE PRODUCTIONS, LLC 7
(a) Maintaining the “Non-Union” provision in their em-
ployment agreements, requiring employees to
acknowledge that their employment is not under the juris-
diction of any union, with penalties for breaching this pro-
vision.
(b) Maintaining a non-disclosure clause in their employ-
ment agreements, which prohibits employees from dis-
cussing their wages and working conditions with other
employees.
(c) Prohibiting employees from engaging in protected
concerted activities.
(d) Disparaging employees for engaging in protected
concerted activities.
(e) Threatening employees with unspecified reprisals
because they engaged in protected concerted activities.
(f) Impliedly threatening employees with discharge for
engaging in protected concerted activities.
(g) Instructing employees that their failure to cease
complaining about protected activity will result in the non-
renewal of their employment contracts and thereby result
in discharge.
(h) Discharging or otherwise discriminating against em-
ployees for engaging in protected concerted activities.
(i) In any like or related manner interfering with, re-
straining, 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 ef-
fectuate the policies of the Act.
(a) Rescind the “Non-Union” provision in their employ-
ment agreement, requiring employees to acknowledge that
their employment is not under the jurisdiction of any un-
ion and threatening penalties for breaching this require-
ment.
(b) Rescind the non-disclosure provision in their em-
ployment agreement prohibiting employees from discuss-
ing their wages and working conditions with each other.
(c) Within 14 days from the date of this Order, offer
Anne Carter full reinstatement to her former job at Vegas!
The Show or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
(d) Within 14 days from the date of this Order, offer
Anne Carter full reinstatement to her former job at The
BeatleShow or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
(e) Make Anne Carter whole for any loss of earnings
and other benefits she has suffered as a result of her un-

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
lawful discharges from Vegas! The Show and The Beat-
leShow, in the manner set forth in the remedy section of
this decision, plus reasonable search-for-work and interim
employment expenses.
(f) Compensate Anne Carter for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
(g) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful discharges
of Anne Carter and, within 3 days thereafter, notify Carter
in writing that this has been done and that the discharges
will not be used against her in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll record, social
security payment records, timecards, personnel records
and report, and all other records, including an electronic
copy of the records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of
this Order.
(i) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 28, after be-
ing signed by the Respondents’ authorized representa-
tives, shall be posted by the Respondents 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 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 in question cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced, or
covered by any other material. If any Respondent has
gone out of business or closed the facility involved in
these proceedings, that Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by that Re-
spondent at any time since September 27, 2011.
(j) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official of each respective Respondent on
a form provided by the Region attesting to the steps that
that Respondent has taken to comply.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. August 26, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
My colleagues find, among other things, that the Re-
spondents violated Section 8(a)(1) of the National Labor
Relations Act (NLRA or Act) by (1) maintaining a “non-
union” provision in its employment contracts, (2) dis-
charging employee Anne Carter from her employment as
a dancer in two Las Vegas shows, and (3) threatening, in
the email discharging Carter, that engaging in protected
concerted activity would result in discharge. As explained
below, I disagree with these findings.1
1. “Non-Union Acknowledgment” Clause in Employee
Agreement. The Employee Agreement is a document con-
taining 18 numbered paragraphs, including the following
one-sentence paragraph 10: “NON-UNION. Artist
Acknowledges that the Show is not under the jurisdiction
of any labor union.” Unlike my colleagues and the judge,
I do not believe the Board should find this one-sentence
acknowledgment constitutes unlawful interference with
protected activity in violation of Section 8(a)(1). I do not
think this sentence reasonably constitutes a commitment
that would prevent employees from exercising their right
to become represented by a union. The judge effectively
acknowledged that this case is distinguishable from other
decisions dealing with unlawful promises to abstain from
union activity. Compare Noah’s New York Bagels, 324
NLRB 266, 272–273 (1997) (dismissing alleged viola-
tion) with Heck’s, Inc., 293 NLRB 1111, 1119–1120
(1989) (finding violation) and La Quinta Motor Inns, 293
NLRB 57 (1989) (finding violation). In finding paragraph

1 I agree with my colleagues that, given the judge’s unchallenged sin-
gle-employer finding, it is unnecessary to pass on the General Counsel’s
contention that the Respondents are also joint employers. I also join my
colleagues in adopting the judge’s findings that, during a December 13,
2011 meeting, the Respondents violated Sec. 8(a)(1) by prohibiting em-
ployees from engaging in protected concerted activity and disparaging
them for doing so. In light of those two findings, well-tailored to the
Respondents’ statements at the meeting, I find it unnecessary to pass on
10 unlawful, the judge relied on its proximity to an unlaw-
ful nondisclosure provision (prohibiting the sharing of in-
formation about compensation and other terms of the
agreement, as to which the Respondents filed no excep-
tions) and on the Respondents’ right to terminate employ-
ment “in the event of breach by Artist of any covenant
contained herein or for insubordination.” As to the
judge’s first reason, mere proximity to an unlawful provi-
sion does not render the “non-union acknowledgement”
provision unlawful. As to her second reason, I believe the
“non-union acknowledgement” provision is merely an ac-
knowledgment that the “Show” to which the agreement
applies is “not under the jurisdiction” of a labor union, and
the provision is not a “covenant” that prospectively pre-
vents employees from exercising their right to union rep-
resentation.
In the performing arts, dancers and other performers
may be represented by unions such as the American Guild
of Musical Artists (AGMA), Actors’ Equity, the Ameri-
can Guild of Variety Artists (AGVA), the Screen Actors
Guild (SAG), and the American Federation of Television
and Radio Artists (AFTRA), which are collectively known
as SAG-AFTRA. Under a common industry practice,
many productions from the outset are mounted with the
expectation that they will be “union” shows—even though
no performers have yet been hired, which means no em-
ployees exist who can express a desire for or against union
representation. Unlike in the construction industry, where
“pre-hire” agreements are permitted under NLRA Section
8(f), the NLRA does not permit the entertainment industry
to have “pre-hire” union agreements. Pragmatically, how-
ever, performers need to know whether a production is be-
ing mounted as a “union” show because (i) unions repre-
senting performing artists often have provisions in their
constitutions and bylaws or collective-bargaining agree-
ments dealing with union jurisdiction, (ii) many of these
unions have overlapping jurisdiction over certain types of
performers, (iii) the unions generally discourage or pro-
hibit represented performers from appearing in produc-
tions in which other performers are not represented, and
(iv) at the time of casting, performers usually seek infor-
mation about what union will have jurisdiction so that they
can determine whether they already belong to the appro-
priate union or whether they need to make arrangements
to join another union.
the judge’s largely redundant findings, which my colleagues adopt, that
the Respondents also threatened unspecified reprisals and impliedly
threatened discharge during that meeting. I agree with my colleagues,
however, that the judge properly dismissed the allegation that the Re-
spondents promulgated and enforced during that meeting an overly broad
and discriminatory rule prohibiting employees from complaining about
their working conditions.
DAVID SAXE PRODUCTIONS, LLC 9
Consistent with the above considerations, it is apparent
from the Employee Agreement that it relates to a produc-
tion that has not yet opened. The Agreement (GC Exh.
14) was dated April 27, 2010, and signed May 7, 2010,
and the preamble to the Agreement states that it relates to
a stage show “tentatively scheduled to open June 14,
2010.” Since the production had not yet commenced, and
given the context outlined above—a common industry
practice where many productions are mounted with the ex-
pectation they will be “union” shows, and where perform-
ers generally wish to know whether a production is ex-
pected to be a “union” show and, if so, which union will
have jurisdiction—I believe employees would regard the
one-sentence “acknowledgment” in paragraph 10 as a pre-
sent-tense indication that the yet-to-be-staged production
was not expected to be mounted as a “union” show, virtu-
ally all performers would want this information before
signing a contract to perform in the show, and I do not
believe the performers would regard this “acknowledg-
ment” as a restriction on future protected activity, includ-
ing potential future union organizing.
2. Discharge of Anne Carter. I disagree with the ma-
jority’s finding that the Respondents discharged em-
ployee-dancer Anne Carter in violation of Section 8(a)(1)
of the Act. My colleagues reverse the judge’s decision in
this regard, disagreeing with the judge’s finding that
Carter was lawfully discharged for reasons unrelated to
her protected activity. Contrary to my colleagues, I agree
with the judge’s detailed analysis in support of her finding
that the Respondents met their Wright Line2 defense bur-
den to prove that Carter’s contract would not have been
renewed even in the absence of her protected conduct, and
accordingly that the nonrenewal of her contract for “Ve-
gas! The Show” and her related discharge from the “Beat-
leShow” were lawful. Employment decisions in the per-
forming arts industry involve a high degree of subjective
artistic judgment, and this is an area where I believe the
Board should afford substantial deference to the judge’s
credibility determinations and factual findings.
I am unpersuaded by my colleagues’ reliance on the
timing of the Respondents’ decision not to renew Carter’s
contract, which my colleagues emphasize was made
shortly after the December 13, 2011 meeting at which
Carter joined other employees in raising concerns about
some employment-related matters, together with the fact
that Carter’s shortcomings as both a dancer and a negative
backstage presence had been tolerated for some time. The

2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 My colleagues find it unnecessary to pass on whether the email also
promulgated and enforced an overly broad and discriminatory rule. I
would find no rule was promulgated. Carter was the only person who
timing of the December 21, 2011 decision not to renew
her contract is not itself suspicious. Her contract was set
to expire on January 2, 2012, so the final decision would
reasonably be made just before that date. Moreover, the
fact that Carter had been given an opportunity to improve
in the past does not mean that the Respondents were obli-
gated to disregard Carter’s shortcomings indefinitely.
Choreographer and Director Tiger Martina testified that
he held auditions in November 2011 looking for a replace-
ment for Carter and that Saxe had agreed around that time
that Carter’s contract should not be renewed when it ended
on January 2, 2012. That decision may not have been fi-
nalized until late December 2011, but the record estab-
lishes that Carter’s non-renewal was under serious consid-
eration before she engaged in protected concerted activity
on December 13. In my view, the judge appropriately
evaluated certain inconsistencies in Saxe’s testimony, and
she properly relied on the testimony of Martina regarding
Carter’s shortcomings as a dancer and her inability or un-
willingness to take instruction, as well as that of several
witnesses whose testimony established that her fellow per-
formers were fed up with the environment Carter fostered
backstage, to find that Carter’s contract for “Vegas! The
Show” would not have been renewed (and relatedly, that
Carter would have been discharged from the “Beat-
leShow”) even if she had not engaged in protected con-
certed activity. In sum, I would adopt the judge’s dismis-
sal of these allegations.
3. Alleged Threat Contained in the Email Advising
Carter of Her Discharge. I also disagree with my col-
leagues’ finding that Saxe’s December 21, 2011 email ad-
vising Carter of the nonrenewal of her contract—which,
among other things, stated that Saxe would “appreciate it”
if Carter “could cease all of the complaining in the dress-
ing room”—constituted an unlawful threat to discharge
employees for engaging in protected activity. The email
could not have been a threat to discharge Carter—since
the email itself informed Carter that she was discharged,
i.e., that her contract, expiring in a matter of days, was not
being renewed—and there is no evidence that any other
employee saw the email. Thus, I believe the Board cannot
reasonably find that the email unlawfully threatened em-
ployees in violation of Section 8(a)(1) for engaging in pro-
tected activities.3
Accordingly, as to these issues, I respectfully dissent.
Dated, Washington, D.C. August 26, 2016
saw the email. Thus, the message in the email to “cease all of the com-
plaining in the dressing room” was “never repeated to any other em-
ployee as a general requirement.” Flamingo Las Vegas Operating Co.,
360 NLRB No. 41, slip op. at 1 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain the “Non-Union” provision in
our employment agreements, requiring you to
acknowledge that your employment is not under the juris-
diction of any union, with penalties for breaching this pro-
vision.
WE WILL NOT maintain a non-disclosure clause in our
employment agreements, which prohibits you from dis-
cussing your wages and working conditions with other
employees.
WE WILL NOT prohibit you from engaging in protected
concerted activities.
WE WILL NOT disparage you for engaging in protected
concerted activities.
WE WILL NOT threaten you with unspecified reprisals
because you engaged in protected concerted activities.
WE WILL NOT impliedly threaten you with discharge for
engaging in protected concerted activities.
WE WILL NOT instruct you that your failure to cease
complaining about protected activity will result in the non-
renewal of your employment contracts and thereby result
in your discharge.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the “Non-Union” provision in our em-
ployment agreements, requiring you to acknowledge that
your employment is not under the jurisdiction of any un-
ion and threatening penalties for breaching this require-
ment.
WE WILL rescind the non-disclosure provision in our
employment agreements prohibiting you from discussing
your wages and working conditions with each other.
WE WILL, within 14 days from the date of the Board’s
Order, offer Anne Carter full reinstatement to her former
job at Vegas! The Show or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously
enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Anne Carter full reinstatement to her former
job at The BeatleShow or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Anne Carter whole for any loss of earn-
ings and other benefits resulting from her discharges, in
the manner set forth in the remedy section of this decision,
plus reasonable search-for-work and interim employment
expenses.
WE WILL compensate Anne Carter for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the appro-
priate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Anne Carter, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and
that the discharges will not be used against her in any way.
DAVID SAXE PRODUCTIONS, LLC, VEGAS! THE
SHOW, LLC, AND FAB FOUR LIVE, LLC, SINGLE
EMPLOYER
The Board’s decision can be found at www.nlrb.gov/case/28-
CA-075461 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Room 5011, Washington, D.C. 20570, or by calling
(202) 273–1940.
DAVID SAXE PRODUCTIONS, LLC 11
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 Re-
spondents) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by maintaining and enforcing overly-broad
and discriminatory rules, interrogating employees about their
protected concerted activities, prohibiting employees from en-
gaging in protected concerted activities, disparaging and threat-
ening employees with discharge and unspecified reprisals for en-
gaging 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 unfair labor practice occurred. In ad-
dition, the Respondents deny they are a joint and/or single em-
ployer and assert that certain individuals are not supervisors un-
der the National Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the Acting General Counsel and the Respondents, I make the fol-
lowing
FINDINGS OF FACT
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 within the meaning of Section 2(2), (6), and (7) of
the Act.

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.
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 tran-
script as the Beetles Show.
4 Vegas! The Show, LLC and Vegas! The Show are referred to inter-
changeably in this decision. It is understood that the former is the cor-
porate entity of the latter.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Respondents’ Operations
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 en-
tity for Vegas! The Show.4 Vegas! The Show, which Saxe pro-
duces, pays homage to the entertainers that made Las Vegas fa-
mous from the 1940s to the 1970s, and features the talent of sing-
ers and showgirl dancers. Saxe and Terry “Mick” McCoy
(McCoy) are equal coowners of Fab Four Live, LLC, the Beat-
leShow’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 charac-
ter 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.
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” in-
terchangeably. (Tr. 27–28.)6 In addition to Vegas! The Show,
LLC, Fab Four Live, LLC and DSP, Saxe also has an ownership
in several other companies. Saxe Management, LLC, is the man-
agement 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.
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 South Commerce offices. Likewise,
neither show has its own separate phone number or email 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 handles the administrative functions for all
the companies under David Saxe Productions. (Tr. 421.) Man-
aged 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 (Rob-
ertson) 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. 253–
5 The BeatleShow was previously called Fab Four Live.
6 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for Acting Gen-
eral 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 em-
phasize that my findings and conclusions are based not solely on the ev-
idence specifically cited, but rather are based my review and considera-
tion of the entire record.
7 Smith terminated Managed Pay’s services because they continued to
get the various companies confused. (Tr. 419– 420).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
255, 610; GC Exhs. 28–29.) For purposes of insurance and work-
ers’ 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 over-
sees human resources services for all of Saxe’s 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 in-
formation. (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.)
Nicole Tanner, who worked as a legal secretary in Saxe’s of-
fice, 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,
LLC. DSP performs marketing and public relations functions
for Vegas! The Show and the BeatleShow. (Tr. 262–263.) Em-
ployees 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 Hollywood. The legal entity Saxe The-
ater 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 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 audi-
tioned at the South Commerce facility and have held a 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 them-
selves in costume after the shows. (Tr. 74.) Dancers cannot
lease or subcontract their 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 Beat-
leShow. (Tr. 435.) Nobody at DSP, other than Saxe, makes de-
cisions about work schedules, hiring, termination, rules, super-
vision, 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.

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.
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 cho-
reographer and director of Vegas! 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 danc-
ers. (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
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 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 employ-
ees 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 fellow
employees without the Company’s prior written consent.” Par-
agraph 16 states, “NON-UNION. Employee acknowledges the
Show is not under the jurisdiction of any labor union.” Para-
graph 10c states: “Company shall have the right to terminate this
Agreement without notice 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 expi-
ration. (Tr. 140–141, 208, 241–242, 270–271, 297.)
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 disabil-
ity accommodations. Employees also learned about and
acknowledged V Theater Group’s open door policy, which de-
scribes the chain of command for reporting employee concerns.10
The meeting, which Carter attended on April 27, 2010, lasted a
few hours. (Tr. 90, 148, 222–223; 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.)
Vegas! The Show had a “soft” opening in June, and the grand
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.)
DAVID SAXE PRODUCTIONS, LLC 13
opening was August 5, 2010. Dancers work on a schedule rota-
tion performing 2 shows a night, 6 nights per week. (Tr. 93–95.)
The show starts at 7 and 9 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. 288–289, 334.).
A couple of “swing” dancers know multiple parts and can fill in
as necessary. (Tr. 333.).
After the initial dancers were cast, DSP continued to hold pe-
riodic 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.)
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 audience mem-
bers, 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 produc-
tion manager for Vegas! The Show from its opening until her
termination in November 2011. In that capacity, she took care
of scheduling and payroll. She also addressed any issues or con-
cerns 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, Kel-
sey has been the male dance captain as well as the dance captain
for the entire show and Mitria has been the female dance cap-
tain.11 The dance captains’ job involves maintaining the integ-
rity of the show. (Tr. 287–288.) After Ryan’s departure, Kelsey
and Mitria took over scheduling as well as responsibility for ad-
dressing dancers’ concerns or questions. They can also recom-
mend 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 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 cap-
tains 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 shows. The notes, which dancers receive
regularly, delineate where the dancers’ performance can im-
prove. (Tr. 290, 326.) In addition, Saxe routinely reviews pho-
tos from the show and instructs Martina and the dance captains
on how to improve it.12 (Tr. 492, 655–656; R. Exhs. 4–7, 9–14.)
After observing the dancers the first few months into the

11 Kelsey can make decisions for the entire cast, but generally Mitria
handles the females and he handles the males.
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
show, Martina thought Carter did not have a strong grip of the
show’s style and believed she appeared stiff and not very versa-
tile. 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 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 cap-
tains give input to Saxe and 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 ex-
pire. (Tr. 479, 653–654; 673.) Saxe decided to keep her and try
to get her to improve and cooperate. (Tr. 480, 499, 653–654.)
Carter was retained and signed a new contract on December
26, 2010. It contained the following provision at paragraph 9:
NONDISCLOSURE/NONDISPARAGEMENT. Artist
agrees not to disclose the terms of this Agreement to third par-
ties 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
have the right to immediately terminate this agreement and col-
lect damages as set forth in section 6 of this agreement. Artist
shall agree not to disparage each other to any person in the me-
dia or any manor [sic] 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 Par-
agraph 6c states: “Company shall have the right to 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 in-
curred in replacing him or her in the event of a breach. (GC Exh.
15.) Matthew Resler, DSP’s general manager, signed the con-
tract on behalf of Saxe. (Tr. 168.)
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 Mar-
tina 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 than make the adjustment and try to
adapt. (Tr. 292.) Mitria observed that other dancers also some-
times did not react well when getting notes. (Tr. 348.) Kelsey
raised concerns about Carters’ reaction to notes with Saxe and
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.
13 Other dancers signed agreements with these same provisions. (GC
Exh. 32; Tr. 72.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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. 294–295.) Kelsey relayed his opinions about
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 osten-
sibly occurred. (Tr. 316–317.) Martina recalled reminding Res-
ler and Ryan to speak to Carter about her performance and atti-
tude, but he was not at the meeting. (Tr. 678.) Carter did not
recall Resler and Ryan ever counseling her. (Tr. 171.)
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 BeatleShow
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 would be
called in if needed. Two female dancers from the original cast
remained. (Tr. 101–102, 330.) Martina conducted brief rehears-
als 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, and their part
of the show lasts 10–15 minutes.14 There are no employment
contracts for dancers in the BeatleShow.
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. 112–113).
Anna Van Samback, who became the dance captain for the Beat-
leShow 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 in-
structions. (Tr. 275–276; 443–445.)
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

14 The dancers who perform in the BeatleShow are not required to
attend the 6:00 meeting for Vegas! The Show. (Tr. 105.)
15 Saxe said if he could find four really amazing dancers at the audi-
tion, he would potentially not renew the contracts of his four lowest danc-
ers. (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.)
“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 gained traction, he was getting more interest from danc-
ers. (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 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 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, 304–305, 388.) On
December 11, they requested a meeting with Saxe through his
assistant, Armando Macias. 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 summa-
rizes 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) 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 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 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
18 Carter wasn’t sure if other dancers who had expressed some similar
concerns spoke during the meeting. (Tr. 176–177.)
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.)
DAVID SAXE PRODUCTIONS, LLC 15
the first show often started late, which decreased the time be-
tween 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
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 bitch-
ing. (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 station was in the back corner, with a wall
to her left and a wall behind her. (Tr. 701; GC Exh. 47.) Accord-
ing 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 dress-
ing room.22 (Tr. 517–519.).
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 exam-
ple, 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
Carter’s backstage negativity was outweighing any benefit they
were getting from her on stage. (Tr. 308.) Some of this negativ-
ity 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.)
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 fol-
lowing 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 sent Carter the following email message:
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 appre-
ciate it of your could cease all of the complaining in the dress-
ing 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 Saxe
(GC Exh. 20.) Carter received the email during the middle of the
first show, and continued with 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 dressing room, other cast members can’t

21 She also voiced these complaints to Ryan and the dance captains.
stand her, and Martina thinks she’s a pain in the ass. Carter in-
formed Saxe that she got along with the other dancers, they were
all at her Christmas party, and her performance was not lacklus-
ter. Carter assured Saxe that, as a professional, she would com-
plete 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 Carter
disputed. (Tr. 211–212.)
Saxe thought he initiated a telephone call to Carter about her
contract not being renewed on December 21 and then followed
up with an email. (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.) 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 investiga-
tion 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.)
Saxe called McCoy to see if he still wanted her in the Beat-
leShow 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. Be-
cause of this, he had previously asked Van Samback to only
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 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 perfor-
mance 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, “Unfortu-
nately David flies off the handle and doesn’t like it when people
talk back to him.” (Tr. 124–125.)
Carter sent Saxe an email on December 27 recounting the
phone conversations they had. Carter expressed that she was
blindsided by the nonrenewal 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.) Ac-
cording to Carter, aside from notes and some routine instruc-
tions, she had never been warned her performance was not satis-
factory and had not been 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 Carter
Van Samback started dancing in Vegas! The Show in July
2011. She observed that Carter complained a lot so she tried to
22 Saxe testified they asked him to stay. (Tr. 516.) Roussel recalled
that Saxe initiated the discussion. (Tr. 380.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
keep her distance from her. Van Samback thought there was fre-
quent of complaining backstage which caused people to be un-
happy. (Tr. 278.) Van Samback believed that Carter was the
main person contributing to the tension backstage. (Tr. 278–
279.) 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 con-
cerns among the employees. (Tr. 365, 389.)
Tara Palsha, a dancer with Vegas! The Show since its begin-
ning, 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. 405–406.) Some dancers
informed Kelsey that Carter was constantly complaining. (Tr.
296.) McCoy perceived Carter as confrontational. (Tr. 441.)
Martina perceived that Carter had a negative attitude back-
stage that upset others and affected morale and the outcome of
the performance. He received complaints from the dance cap-
tains, Palsha, as well as wardrobe employees who voiced that she
was demanding with the 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.
III. DECISION
A. Threshold Issues
Before turning to the substance of the complaint allegations, I
will address the threshold issues of employer status and supervi-
sory status.
1. Joint/Single employer
The Acting General Counsel asserts that DSP, Vegas! The
Show, LLC and Fab Four Live, LLC are joint employers or, in
the alternative are a single employer.
A joint employer relationship exists where companies
amounting to independent legal entities have chosen to handle
jointly important aspects of their employer-employee relation-
ship. It is not necessary to demonstrate that the various entities
form a single integrated enterprise. See NLRB v. Browning-Fer-
ris Industries, 691 F.2d 1117, 1122–1123 (3d Cir. 1982). The
standard in a joint employer finding is two entities exert signifi-
cant control over the same employees, and 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 Mgmt., 292 NLRB
251, 259 (1989). A joint employer must meaningfully affect mat-
ters relating to employment such as hiring, firing, discipline, su-
pervision and direction. Riverdale Nursing Home, 317 NLRB
881, 881 (1995); Browning–Ferris Industries, supra at 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 suf-
ficiently integrated to be considered a single employer, the Board
examines four principal factors: (1) common ownership; (2)
common management; (3) interrelation of operations; and (4)
centralized control of labor relations. Waterbury Hotel Mgmt.,
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 signif-
icant factor is the absence of an “arm’s length relationship found
amongst unintegrated companies.” Denart Coal 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 im-
portant factor and weighs common ownership less heavily. Na-
perville Ready Mix, 242 F. 3d 744, 752 (7th Cir. 2001) (citing
Fedco Freightlines, Inc., 273 NLRB 399).
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, sat-
isfy 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
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 var-
ious companies. Saxe hires and fires employees for Vegas! The
Show. He is listed organizationally as the head of each company.
(GC Exhs. 9, 43; R. Exh. 15.) While McCoy handles all per-
formers’ issues or concerns about the BeatleShow, Ryan super-
vised 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 Super-
market, supra at 302.
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 spe-
cific 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 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 num-
ber or e-mail server—supervisors use DavidSaxe.com as their
email 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 insur-
ance. Further, DSP performs the “office stuff” for Saxe’s vari-
ous companies and oversees human resources matters for all of
Saxe’s companies. DSP performs marketing and public relations
function for Vegas! The Show and the BeatleShow. Addition-
ally, 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 in-
formation. DSP administers COBRA benefits for Vegas! The
DAVID SAXE PRODUCTIONS, LLC 17
Show. Although DSP and Vegas! The Show are parties to a mar-
keting and 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.
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 employees. In addition, DSP employees process pay-
roll 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.
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 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 8(a)(1) Violations
The various substantive allegations concern violations of Sec-
tion 8(a)(1) of the Act. Under Section 8(a)(1), it is an unfair la-
bor 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 collec-
tively through representatives of their own choosing, and to en-
gage in other concerted 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 violated Section 8(a)(1) by maintain-
ing overly-broad and discriminatory contract provisions, i.e. a
non-disclosure clause and a nonunion clause.
The Acting General Counsel has the burden to prove, by pre-
ponderant evidence, that a rule or policy violates the Act. In de-
termining whether a work rule violates Section 8(a)(1), the ap-
propriate 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 (D.C.
Cir. 1999). Under the test enunciated in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646 (2004), if the rule explicitly re-
stricts Section 7 rights, it is unlawful. If it does not, “the violation
is dependent upon a showing of one of the following: (1) em-
ployees would reasonably construe the language to prohibit Sec-
tion 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 847. A rule does not violate the Act if
a reasonable employee merely could conceivably read it as bar-
ring Section 7 activity. Rather, the inquiry is whether a reasona-
ble employee would read the rule as prohibiting Section 7 activ-
ity. 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 the
right of employees to engage in Section 7 activity. Firestone Tire
& Rubber, 238 NLRB 1323, 1324 (1978).
a. Nondisclosure Clause
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 ex-
pressly prohibit employees expressly prohibit employees from
discussing among themselves, or sharing with others, infor-
mation relating to wages, hours, or working conditions, or other
terms and conditions of employment, restrain and coerce em-
ployees in 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 1690, 1714 (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).
b. Nonunion 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 7 activity, nor was evidence pre-
sented 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 prohibit-
ing protected activity. For the reasons set forth below, I find that
it would.
The Acting General Counsel asserts that the clause is a “yel-
low 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 party to come between us.” Id. at 525. The
employer required the employees to sign an agreement promis-
ing to comply with the manual under threat of discipline includ-
ing discharge, and the signed agreement was placed in the em-
ployees’ respective personnel files. Similarly, the Acting Gen-
eral 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 discipline for vi-
olating 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Act. See also, Heck’s Inc., 293 NLRB 1111 (1989); Matheson
Fast Freight, Inc., 297 NLRB 63 (1989); Noah’s New York Ba-
gels, Inc., 324 NLRB 266
(1997).
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 nonunion. 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, however, I
find the clause is coercive. The contract requires the dancer to
acknowledge that Vegas! The Show is nonunion as a term of em-
ployment. If dancers organized, they would no longer be ac-
knowledging the show is nonunion, and would reasonably be-
lieve they faced termination and/or a monetary penalty.
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 differ-
ent 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.
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
employees about their concerted activities; (2) prohibited em-
ployees 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) promul-
gated an overly-broad and discriminatory rule prohibiting em-
ployees from complaining about wages and hours.
a. Credibility
Before addressing the specific allegations, I will address cred-
ibility. As noted above, 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. 510–515.) Kelsey
could not specifically recall whether profanity was used but re-
called 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 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 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 rec-
ollection. 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 Enter-
prises, 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 In-
dustries, Inc., 197 NLRB 489, 491 (1972).
b. Legal Standards
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 em-
ployer engaged in conduct which might reasonably tend to inter-
fere with the free exercise of employee rights under Section 7 of
the Act. American Freightways Co., 124 NLRB 146 (1959).
Because the complaints regarding the December 13 meeting
relate to concerted activity, and because a finding that Carter en-
gaged in protected concerted activity is a necessary element of
some later complaint allegations, I will make a threshold deter-
mination regarding whether the complaints, including Carter’s,
were concerted. The Board has held that activity is concerted if
it is “engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” Meyers
Industries, 268 NLRB 493 (1984), 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, 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 “circum-
stances where individual employees seek to initiate or to induce
or to prepare for group action” and where an individual em-
ployee brings “truly group complaints to management’s atten-
tion.” Meyers Industries, 281 NLRB at 887. An individual em-
ployee’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 (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 fol-
lowing Ryan’s termination. The meeting was held to address
such concerns, and at least two dancers other than Carter voiced
concerns about wages, scheduling, and other working condi-
tions. 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
The employees requested the meeting with Saxe to express
concerns they had about the workplace following Ryan’s depar-
ture. Saxe asked what their concerns were. This is not an inter-
rogation. 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., 310 NLRB 777, 793 (1993), 16 F.3d
517 (2d Cir. 1994). The portions of those cases cited do not dis-
cuss unlawful interrogations. As I find no support for this alle-
gation, I recommend its dismissal.
d. Paragraph 4(c)(2) and (3): Alleged Prohibition
and Disparagement
The Respondents contend generally that Saxe is open to feed-
back 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
DAVID SAXE PRODUCTIONS, LLC 19
above, that Saxe bemoaned the dancers’ “bitching” about topics
involving pay, hours, and other working conditions.23
Though not an outright or explicit prohibition of concerted ac-
tivity, 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 disparag-
ing language directed at protected activity would reasonably tend
to discourage and interfere with concerted activities, and it there-
fore 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 Threats
When determining if statements amount to threats of retalia-
tion, the Board applies the test of “whether a remark can reason-
ably 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 Sec.
8(a)(1) is an objective one which examines whether the employ-
er'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 circum-
stances in assessing the reasonable tendency of an ambiguous
statement or a veiled threat 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 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 them for
violations, I find Saxe’s comments could reasonably be con-
strued as threatening.
In assessing the totality of the circumstances, I have consid-
ered Saxe’s opinion, shared by some of the performers, that he
is accessible to and open with his cast. In the context of the De-
cember 13 meeting, however, he clearly did not welcome com-
plaints, 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).

23 Saxe’s tendency toward using this term is apparent from the tran-
script. In addition, Saxe himself referred to Boychoure’s requests for
holiday pay as an “attack”. (Tr. 511.)
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
f. Paragraph 4(c)(6): Promulgation of Rule Prohibiting
Complaints
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 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, they will be discussed in that con-
text.
a. Carter’s Status and Standing
The Respondents assert that Carter was not discharged from
Vegas! The Show. Instead, her finite contract was simply al-
lowed 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. Supe-
rior Court, 208 Cal.App.4th 676 (2012), as instructive. 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 nonrenewal of her contract. The court held, however,
the actress’s allegations of retaliation for complaining about un-
safe working conditions, a statutory claim, raised a viable cause
of action. There is no tort-based assertion regarding Carter’s
nonrenewal, and therefore I will proceed to analyze her statutory
claim on the 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 dis-
charged from Vegas! The Show for her protected concerted ac-
tivities in violation of Section 8(a)(1) of the Act. To prove an
adverse action violates Section 8(a)(1), the Acting General coun-
sel must establish the following elements: (1) the activity must
be concerted; (2) the employer must know of the concerted na-
ture 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 NLRB 493,
497 (1984); Triangle Electric Co., 335 NLRB 1037, 1038
(2001). If the General 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 pro-
tected concerted activity).
of action for nonrenewal 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 (Sec. 8(a)(1) and (3)) and/or protected concerted activ-
ity (Sec. 8(a)(a)) alike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
As set forth above, Carter engaged in concerted protected ac-
tivity 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.
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 em-
ployee'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 showing departure from past practice or dis-
parate 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 email Saxe sent on
December 21, 2011, informing Carter of her nonrenewal is direct
evidence of unlawful motivation. The email, 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 you are
professional enough to finish your contract and I would appre-
ciate it of your could cease all of the complaining in the dress-
ing 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 Saxe
(GC Exh. 20.) While I agree that Carter’s complaining is clearly
stated as a reason for her nonrenewal, Saxe cites her “constant
complaining” in the dressing room and references the effect on
her coworkers. It is clear, therefore, that the email relies on some
“complaining and negativity” other than the concerted com-
plaints 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 danc-
ers who testified about Carter’s complaints were generally not
believable because they appeared 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 Kel-
sey’s testimony regarding the complaint from the dancer who
said Carter’s attitude had ruined her Thanksgiving.25 The record

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 con-
certed, 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
is replete with testimony that dancers and the dance captains in-
formed Saxe of Carter’s proclivity to complain in the dressing
room.26 In addition to coworker complaints, the email 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 email, on its face, cites
reasons for Carter’s non-renewal other than her protected con-
certed activity. Accordingly, I find the email 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 atti-
tude. (R. Br. 4.) Turning first to Saxe’s testimony, his stated ra-
tionale for Carter’s nonrenewal is somewhat of a moving target.
Initially he testified that he talked with Mitria, Kelsey and Mar-
tina and then did an investigation by asking other dancers about
Carter after his conversation with Roussel and Hamilton follow-
ing the December 13 meeting. Specifically, after learning
Carter’s negative attitude was adversely affecting the other danc-
ers, he called Carter and, in an effort to protect the other dancers,
simply and politely 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 nonrenew Carter was
made in October and employee concerns about Carter’s com-
plaining did not motivate this decision. (Tr. 591–592.)
Saxe’s testimony about Carter’s nonrenewal is also problem-
atic for other reasons. When discussing the November 18 re-
hearsals to replace Carter, Saxe stated he had decided in October
to let Carter’s contract expire, and by that time had already spo-
ken 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 De-
cember 13 meeting.27 (Tr. 307.) Moreover, Mitria testified that
Carter’s dance ability was not in question, but rather her attitude
was the main concern. (Tr. 349–350.) Much of Saxe’s testi-
mony about the December 13 meeting likewise cannot be cred-
ited, as set forth above. In addition, as the Acting General Coun-
sel 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.
Saxe’s testimony regarding alleged counseling Carter re-
ceived for her performance and attitude presents further credibil-
ity problems. First, the testimony alone, aside from any credi-
bility 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 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
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 estab-
lished, 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.
DAVID SAXE PRODUCTIONS, LLC 21
Machines, 285 NLRB 1122, 1123 (1987) (adverse inference ap-
propriate when party fails to call witness who “may reasonably
be assumed to be favorably disposed to the party”). Accord-
ingly, I find Carter was not disciplined prior to her nonrenewal,
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 withstand scrutiny. He was not certain
about the precise chain of events, but thought he had called
Carter before sending her the December 21 email. His email,
however, references a failed attempt to talk to Carter in person
the previous night, but does not reference a telephone conversa-
tion earlier that day. Carter’s version of events, that she learned
of her non-renewal from the email, is credited both because her
testimony was unequivocal and is more inherently 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 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 De-
cember 13 meeting. Saxe solicited feedback from the dance cap-
tains 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 out-
spoken but tries to voice concerns in a positive manner. Kelsey
responded by stating, “Unfortunately David flies off the 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 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.
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).

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 2-weeks’ notice and Martina had taken unilateral action
in terminating dancers mid-contract in the past. I do not find this dis-
credits Martina’s testimony regarding his concerns about Carter’s dance
As such, the burden of persuasion shifts to the Respondent to
show that Carter’s contract would not have been renewed even
absent her protected concerted activity. See DirecTV U.S. Di-
recTV 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
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 rec-
ommended letting Carter’s initial contract expire. According to
Martina, he again informed 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 cho-
reographer for some of Saxe’s shows, I do not find he is beholden
to Saxe in the same way a subordinate employee would be. He
is not present at Vegas! The Show on a regular basis, and he cho-
reographs 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 Saxe’s
testimony changed to better align with Martina’s recollection of
events. Saxe’s testimony in general was often equivocal, impre-
cise, 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
nonrenewal in the past to no avail. Despite Martina’s testimony
that it was his decision 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 tes-
timony with the other evidence, including the timing of events,
the contents of the December 21 email, 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 back-
stage is unworthy of credence in light of all the evidence. As
noted, I credit the testimony from Carter’s coworkers and the
style. He did not point to anything drastic about her performance that
would render suspicious his absence of immediate unilateral action, par-
ticularly considering he does not usually terminate dancers.
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 nonspecific nature of the advertisement
and the fact that Saxe did not know who replaced Carter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
dance captains that her pervasive complaining created a negative
atmosphere backstage. The dance captains both specifically re-
called 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. Mar-
tina also relayed this information to Saxe, along with his reiter-
ated concerns about her dance style. Though Saxe’s testimony
is inconsistent, the testimony from the witnesses who provided
input into the decision to let Carter’s contract expire is not.32
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, Mar-
tina is responsible for the dancers’ artistic and stylistic perfor-
mance 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 re-
quired the adaptations Vegas! The Show requires. It is not ma-
terial that Kelsey noticed some of the style concerns that troubled
Martina. Given the facts of this case, I do not find this testimony
inconsistent.
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 testi-
mony that she met with Saxe after the meeting and informed him
that Carter created a negative backstage environment is unre-
futed.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 Sam-
back, 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 because of the environment Carter
fostered backstage by the pervasiveness and perceived minor na-
ture 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 legiti-
mate consideration. See Good Samaritan Hospital, 265 NLRB
618, 627 (1982); Desert Construction, 308 NLRB 923 (1992).
Particularly considering the context of this case is a live show, I
find such complaints are a legitimate consideration.
Carter spoke the most at the December 13 meeting. Boy-
choure, 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 de-
scribed tense, no negative action was taken against her. I find
that Carter’s concerted complaints at the December 13 meeting,
without more, would not have resulted in nonrenewal of her con-
tract. While I find the complaints did not endear Carter to Saxe,

32 Though I do not pass on whether Kelsey or Mitria are statutory su-
pervisors, their testimony that they provided input to Saxe regarding
whether or not to renew dancers’ contracts is undisputed.
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 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 ev-
idence that the employer has agreed to forgive the misconduct,
to ‘wipe the slate clean,’ and to resume or continue the employ-
ment relationship as though no misconduct occurred.” United
Parcel Service, 301 NLRB 1142, 1143 (1991) (footnote omit-
ted); 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 pos-
itive act by an employer indicating 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
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 Ve-
gas! 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 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 trou-
bling. Were I to rest my 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 prepon-
derant evidence shows that without this input, Carter would not
have been terminated for her protected concerted complaints.
Based on the foregoing, I recommend dismissal of complaint
paragraph 6(e).
c. Alleged Overly-Broad Rule
The complaint, at paragraph 4(d)(1), alleges that Saxe’s De-
cember 21 email promulgated and enforced an overly-broad and
discriminatory rule prohibiting employees from engaging in con-
certed activities. The email 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 email violates the Act as alleged.
33 It is also supported by Palsha’s testimony that there was a lot of eye-
rolling. (Tr. 405.)
34 As McCoy noted, dancing is not really critical in the BeatleShow.
(Tr. 441.)
DAVID SAXE PRODUCTIONS, LLC 23
d. Alleged Threat of Non-Renewal
Paragraph 4(d)(2) of the complaint alleges that Saxe’s Decem-
ber 21 email threatens employees that concerted activity will re-
sult in non-renewal of employees’ contracts, resulting in their
discharge. The Acting General Counsel makes no argument in
support of this allegation. Though I have found Carter’s dis-
charge 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 vio-
lated the Act as alleged.
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.
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 Respond-
ents 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 con-
tractor or an employee, the Board applies the common-law test
of agency, assessing “all of the incidents of the relationship . . .
with no one factor being decisive.” NLRB v. United Insurance
Co., 390 U.S. 254, 258 (1968), enfg. 154 NLRB 38 (1965). Fac-
tors relevant to this determination include: (1) whether the puta-
tive 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 op-
portunity for gain; (4) whether the 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 pay-
ment, whether by time or by the job; and (10) the length of time
the individual is employed. Lancaster Symphony Orchestra, 357
NLRB 1761, 1764 (2011). In Lancaster Symphony Orchestra,
the Board concluded that an employer-employee relationship ex-
isted between an orchestra and its musicians. Id. at 9. The Board
so held, applying the aforementioned factors, finding that the or-
chestra possessed the right to control the manner and means by
which the performances were accomplished by choosing the mu-
sic, deciding how it would be played, when and how the perfor-
mance would be 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 entre-
preneurial gain—the musician’s services were a part of the or-
chestra’s routine business with the musicians paid on an hourly
basis. Id.
In the instant case the Respondent exercises rights to control
the manner and the means of performance. Dancers have no con-
trol 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 in-
structed to move props. See Production Industries, Inc., 178
NLRB 707, 708–709 (1969) (entertainers were independent con-
tractors based on large sums of money they spent on costuming
and advertising; autonomy of performance). Unlike in Produc-
tion Industries, Inc., the BeatleShow dancers were not required
to pay for their own costuming or promotional material. Addi-
tionally, the dancers bear no entrepreneurial risk. Performers,
including Carter, are paid an agreed upon rate per show regard-
less of how well the 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 di-
rector of Vegas! The Show—also conducted auditions for the
BeatleShow and was consulted regarding 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.
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
Carter was an employee rather than an independent contractor.
Nevada Resort Association, 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 in which the dancers are managed
indicates minimal control and supervision. However, as noted
in Nevada Resort Association, 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 ex-
ercised 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’ conten-
tion that the dancers are allowed to work other jobs is equally
unpersuasive in finding that Carter was an independent contrac-
tor. 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 Discharge
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 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
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 dis-
charge Carter from the BeatleShow.
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 Coun-
sel asserts that this rationale is suspect, because McCoy 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 con-
sistent and clear, and is not refuted.
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 “qual-
ified 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 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 Beat-
leShow. However, because I do not find her non-renewal for
Vegas! The Show was retaliation based on her protected con-
certed 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 com-
plaint allegation.
CONCLUSIONS OF LAW
1. The Respondents are a single employer engaged in com-
merce and in business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondents violated Section 8(a)(1) of the Act by
maintaining overly broad and discriminatory clauses in its em-
ployment contracts requiring wages and other terms and condi-
tions of employment to remain confidential and requiring em-
ployees to acknowledge their employment is non-union with
penalties for breach of any contract provision.
3. The Respondents violated Section 8(a)(1) of the Act by
prohibiting employees from engaging in protected concerted ac-
tivities 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 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.
REMEDY
Having found the Respondent has engaged in certain unfair

35 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
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.
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.
Having unlawfully promulgated and maintained a contract
provision requiring employees to acknowledge they are not un-
der 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.
Having engaged in unlawful prohibition of employees from
engaging in protected concerted activities and threatening and
demeaning of employees engaged in protected concerted activi-
ties, the Respondent will be ordered to cease and desist from
these actions.
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, slip op. at 15–16 (2010). Also in ac-
cordance with that decision, the question as to whether a partic-
ular type of electronic notice is appropriate should be resolved at
the compliance stage. Id, slip op. at p. 3. See, e.g., Teamsters
Local 25, 358 NLRB No. 54 (2012).
Accordingly, on the above findings of fact and conclusions of
law and on the entire record, I issue the following recom-
mended35
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:
1. Cease and desist from
(a) Enforcing the contract provision prohibiting employees
from discussing their wages and working conditions with each
other.
(b) Enforcing the contract provisions requiring employees to
acknowledge they are nonunion and threatening penalties for
breach.
(c) Prohibiting employees from engaging in protected con-
certed activities.
(d) Threatening employees with adverse consequences for en-
gaging in protected concerted activities.
(e) Demeaning employees for engaging in protected concerted
activities.
(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 effectu-
ate the policies of the Act.
(a) Rescind any contract provision prohibiting employees
from discussing their wages and working conditions with each
other.
DAVID SAXE PRODUCTIONS, LLC 25
(b) Rescind the contract provisions requiring employees to
acknowledge they are nonunion 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 “Appen-
dix.” Copies of the notice, on forms provided by the Regional
Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper 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 Respond-
ent 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 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 Region 28 a sworn certification of a re-
sponsible 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 dis-
missed insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 7, 2013
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 no-
tice.
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 activi-
ties.
WE WILL NOT do anything that interferes with these rights.
More particularly
WE WILL NOT threaten or demean you for engaging in pro-
tected 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” re-
quirements in order to allow employees to properly stretch and
take a break in between shows, and requesting additional assis-
tance 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, re-
strain, or coerce you in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
DAVID SAXE PRODUCTIONS, LLC AND VEGAS! THE
SHOW, LLC