Seattle Opera Association

National Labor Relations Board - Board Decisions

Aug 24, 2000

331 N.L.R.B. 1072 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
Seattle Opera Association and American Guild of
Musical Artists, AFL–CIO, Petitioner. Case 19–
RC–13939
August 24, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 3, 2000, the Regional Director for Region 19
issued a Decision and Direction of Election finding that
the Employer’s auxiliary choristers are not employees as
defined in Section 2(3) of the Act, but rather are volun-
teers. The Petitioner filed a timely request for review of
the Regional Director’s decision, and the Employer filed
a brief in opposition to the request for review.
On May 25, 2000, the Board granted the Petitioner’s
request for review. Thereafter, the Petitioner filed a brief
on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, includ-
ing the Petitioner’s brief on review, we conclude, con-
trary to the Regional Director, that the auxiliary choris-
ters are employees within the meaning of Section 2(3) of
the Act.
Facts
The Employer is a not-for-profit opera company en-
gaged in producing approximately five operatic produc-
tions per year in Seattle, Washington.
The Petitioner currently represents a unit of choristers,
dancers, stage managers, assistant stage managers, and
assistant stage directors. The most recent agreement
(AGMA agreement) is effective until July 31, 2002.
Choristers fall into several categories including regular
choristers and temporary regular choristers. The AGMA
agreement also defines the positions of alternate and aux-
iliary choristers, although such positions are not covered
by the contract and are not included in the currently rep-
resented unit. By its petition, the Petitioner seeks to add
alternate and auxiliary choristers to the existing unit by
means of a self-determination election. The parties agree
that alternate choristers are statutory employees and are
properly included in the appropriate voting group. They
disagree as to the status of the auxiliary choristers.
There are 36 regular choristers who are named every
other year following biannual open chorus auditions be-
fore the general director. To become a regular chorister,
an individual must pass the open chorus audition, agree
to perform at least 50 percent of the operas offered in a
season, and have sung in two previous Seattle Opera
productions or two other professional productions. Per-
forming as an auxiliary chorister counts toward the regu-
lar choristers’ requirement of singing in two previous
productions. When there are vacancies among the regu-
lar choristers, temporary regular choristers fill those posi-
tions.
Alternate choristers are chosen from the auxiliary
ranks and, pursuant to the AGMA agreement, are given
first right of refusal for temporary regular chorister posi-
tions when regular choristers are on leave or absent.
Alternates are compensated at a rate of $20 for each re-
hearsal and performance in which they participate. The
AGMA agreement allows the Employer to name up to 16
alternate choristers for a production.
Auxiliary choristers are used when a production re-
quires more than 36 choristers. Auxiliary choristers
audition, along with alternates, before a musical commit-
tee. At any given time there are 100–200 auxiliary cho-
risters in the Employer’s database. Once engaged for a
production, auxiliary choristers are required to sign a
“Letter of Intent” agreeing to be available for all rehears-
als and performances for the production.1 Auxiliary cho-
risters receive a handbook and sign a “Letter of Under-
standing” agreeing to comply with attendance and deco-
rum requirements “as a condition of being considered as
an auxiliary chorister.” The auxiliary choristers are ex-
pected to sign in at rehearsals on the same attendance
sheet as all other choristers. Auxiliary choristers also
share dressing rooms with other choristers and receive
makeup instruction and costume fittings with the other
choristers. Supernumeraries2 and the children’s chorus,
designated as volunteers by the Employer, use different
dressing rooms from those used by the rest of the choris-
ters. During a performance, auxiliaries sing with other
choristers and sometimes sing in small groups with regu-
lar choristers. All choristers, including auxiliaries, are
listed alphabetically in the production program under the
heading, “Chorus,” whereas supernumeraries and the
children’s chorus are listed under their specific volunteer
positions.
The majority of the Employer’s currently employed
regular choristers sang with the Seattle Opera first as
auxiliaries. The AGMA agreement provides that alter-
nates are designated from among the auxiliary ranks.
Even though the AGMA agreement does not require it,
normal practice is for the Employer to choose an auxil-
iary if no alternate is available to perform as a temporary
regular chorister.
Auxiliary choristers are paid $214 for each production
in which they perform, and, in addition, receive two tick-
ets to the orchestra dress rehearsal of that show and two
tickets to each of four dress rehearsals the following sea-
son. Whereas other choristers and volunteers are re-
quired to submit an expense report or receipts to receive
reimbursement for their expenses, auxiliary choristers
automatically receive $214 at the end of the production,

1 There are six to eight musical rehearsals, seven to nine staging re-
hearsals, and six to eight performances per production.
2 Supernumeraries are performers with nonspeaking parts.
331 NLRB No. 148
SEATTLE OPERA ASSN. 1073
whether they incur expenses or not. Deductions are not
taken from auxiliaries’ checks, but the Employer’s work-
ers’ compensation insurance covers auxiliary choristers.
Analysis
Relying on WBAI Pacifica Foundation, 328 NLRB
1273 (1999), and Tony & Susan Alamo Foundation v.
Secretary of Labor, 471 U.S. 290 (1985), the Regional
Director found that auxiliary choristers are not statutory
employees, but are volunteers, based on the absence of a
sufficient economic relationship with the Employer. The
Regional Director acknowledged that auxiliary choristers
receive monetary payment from the Employer, but con-
cluded that one could not function as an auxiliary choris-
ter primarily for immediate financial gain.3 We find,
contrary to the Regional Director, that auxiliary choris-
ters are employees under Section 2(3) of the Act.
Like the Regional Director and the parties, we look to
our recent decision in WBAI to provide the framework
for our analysis.4 In WBAI, we found that the radio sta-
tion’s unpaid staff were volunteers, and not statutory
employees, because there was no economic aspect to
their relationship with the employer. Looking to the Su-
preme Court’s definition of employee as stated in NLRB
v. Town & Country Electric, 516 U.S. 85, 90 (1995), we
found that the Court’s definition is “bounded by the
presence of some form of economic relationship between
the employer and the individual held to have statutory
employee status.” WBAI, supra. The Board stressed that
to work for hire means, “to receive compensation for
labor or services.” Id. At the very least, the Board stated,
where statutory employee status is found, there is a “ru-
dimentary economic relationship, actual or anticipated,
between employee and employer.” Id.
Applying these teachings of the Court and Board, we
find, under Town & Country and WBAI, that auxiliary
choristers are employees as defined in Section 2(3) of the
Act. Central to our analysis is that there is an economic
relationship with the Employer. Auxiliary choristers
receive monetary remuneration. The Employer argues
that the auxiliaries’ remuneration is intended to defray
transportation and parking costs incurred while auxilia-
ries attend rehearsals and performances. However, auxil-
iaries, unlike other individuals whose expenses are reim-
bursed by the Employer, are not required to submit re-
ceipts or expense reports, and they receive remuneration
in the amount of $214 at the end of a production whether

3 The Regional Director calculated that auxiliaries are compensated
at “roughly” $3 per hour for each production, including rehearsal and
performance time.
4 The other case cited by the Regional Director, Tony & Susan
Alamo Foundation, supra, involved employee status under the Fair
Labor Standards Act, 29 U.S.C.A. § 203 (1938), not the National Labor
Relations Act. In that case the Supreme Court relied on the definition
of “wage” under the FLSA as specifically including nonmonetary bene-
fits and found the employer’s associates were employees since they
depended on their employer for food, shelter, clothing, and medical
benefits.
or not they incur costs. Therefore we find the auxilia-
ries’ remuneration to be compensation for their work.5
The unpaid staff in WBAI, unlike the auxiliary choristers,
received no wages or fringe benefits, and in fact raised
money for or contributed money to the radio station. The
Board noted that any “compensation” received by the
unpaid staff was nonmonetary and in the form of per-
sonal satisfaction in providing a service to the commu-
nity and ensuring the continued existence of the station.
Like the unpaid staff in WBAI, auxiliary choristers pro-
vide a service to the community and presumably derive
pleasure and satisfaction in performing, as do all choris-
ters. Unlike in WBAI, however, auxiliary choristers also
receive some monetary compensation for their work.
Additionally, auxiliary choristers are clearly in an em-
ployment relationship with the Employer. By signing a
letter of intent and signing in at each rehearsal, auxilia-
ries agree to attend rehearsals and performances on time,
at times designated by the Employer. They are given
explicit instructions on decorum and conduct and are
expected to comply with conditions set forth in a hand-
book developed specifically for them. Moreover, auxil-
iary choristers audition with alternates and, according to
their handbook, receive feedback and are subject to nor-
mal expectations of performing the music and staging.
Unpaid staff in WBAI, on the other hand, worked inde-
pendently once the program they produced was ap-
proved.
Auxiliary choristers are critical to the Employer’s pro-
ductions. The AGMA agreement provides that if a regu-
lar chorister or temporary regular chorister is on leave, or
a production requires more than 36 choristers, the Em-
ployer look to its alternates to fill the positions. As noted
above, alternates are auxiliaries designated to be alter-
nates by the Employer. In the event that there are not
enough alternates for particular singing parts, auxiliary
choristers are used. When auxiliaries become alternates
or temporary regular choristers they receive compensa-
tion for their work for the Employer and are considered
paid staff for the entire production.
Further supporting our finding of employee status is
that performing as an auxiliary chorister may lead to be-
coming an alternate, and then a regular, chorister. In
fact, performing as an auxiliary chorister counts toward
satisfying the prerequisite for employment as a general
chorister, i.e., that the applicant has sung in two previous
productions. In addition, it is clear that the majority of
current regular choristers were once auxiliaries. Fur-
thermore, auxiliaries benefit from sharing rehearsals,
makeup instruction, costume fittings, and dressing rooms
with other choristers, in learning their trade. The Board
in WBAI found, in marked contrast to this case, that un-
5 Like most other choristers, auxiliaries do earn supplemental in-
come at different jobs during the day. That they have additional em-
ployment, as other employees also may have, does not affect the auxil-
iaries’ employee status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
paid staff positions were not paths or stepping stones to
paid positions.
Finally, auxiliary choristers are treated differently than
the Employer’s supernumeraries and children’s chorus.
As noted above, supernumeraries and the children’s cho-
rus have separate dressing rooms, are listed separately in
the opera program under their volunteer positions, are
required to present receipts or expense reports, and are
reimbursed per rehearsal and performance. Auxiliary
choristers, on the other hand, share dressing rooms with
regular choristers, are listed in the opera program along
with all other choristers under the general heading “Cho-
rus,” do not present receipts or expense reports, and re-
ceive the same compensation at the end of each produc-
tion.
As our decision in WBAI indicates, at the heart of the
Supreme Court decisions considering whether disputed
individuals are employees within the meaning of Section
2(3), is the principle that employee status must be deter-
mined against the background of the policies and pur-
poses of the Act. We specifically found in WBAI that the
Act addresses the “fundamentally economic relationship”
between employers and employees, and states as policy
that equality of bargaining power in this relationship,
through collective bargaining, “safeguards commerce
from the harm caused by labor disputes.” 328 NLRB
1273. Importantly, to find individuals not to be employ-
ees because they are compensated at less than the mini-
mum wage, or because their compensation is less than a
living wage, contravenes the stated principles of the Act.
For all these reasons, we conclude that auxiliary cho-
risters are employees within the meaning of Section 2(3)
of the Act.6
ORDER
IT IS ORDERED that this matter be remanded to the
Regional Director for further appropriate action.

6 Before the Regional Director, the Employer contended that even if
auxiliary choristers are considered statutory employees, they are casual
employees and therefore lack a sufficient community of interest with
the other choristers in the unit. Because the Regional Director found
the auxiliary choristers were not employees, he did not address this
issue. We find that this issue should first be considered by the Regional
Director and express no opinion as to it.