Steppenwolf Theatre Co.

National Labor Relations Board - Board Decisions

Jun 18, 2004

342 N.L.R.B. 69 (N.L.R.B. 2004)

STEPPENWOLF THEATRE CO.
342 NLRB No. 7
69
Steppenwolf Theatre Company and Theatrical Stage
Employees Union, Local No. 2, I.A.T.S.E. and
United Scenic Artists, Local USA-829,
I.A.T.S.E., Joint Petitioners. Case 13–RC–20942
June 18, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 3, 2003, the Regional Director for Region 13
issued a Decision and Direction of Election in the above-
entitled proceeding. She found that a unit of all full-time
and regular part-time production employees including
carpenters, electricians, scenic artists, properties employ-
ees, sound employees, costume/wardrobe employees, and
running crew employees, employed by the Employer, is an
appropriate unit and that, applying the eligibility formula
articulated by the Board in Juilliard School, 208 NLRB
153 (1974), part-time employees who have worked on at
least two productions for a total of 40 hours during the
year prior to the eligibility date or who have worked a total
of 120 hours during the past 2 years are eligible to vote.
She also found that the Employer’s department heads are
supervisors as defined in Section 2(11) of the Act.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
Joint Petitioner Local 2 (the Union) filed a timely request
for review, maintaining that the Regional Director erred
in applying the Juilliard School eligibility formula and
that the proper formula to apply is the formula articulated
by the Board in Davison-Paxon Co., 185 NLRB 21
(1970).1 The Union also maintained that the Employer’s
department heads are not supervisors as defined in Sec-
tion 2(11) of the Act.
By Order dated May 7, 2003, the Board granted the
Union’s request for review solely with respect to the Re-
gional Director’s application of the Juilliard School eli-
gibility formula.2 The election was conducted as sched-
uled on May 6, 2003, and the ballots were impounded.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 The Davison-Paxon formula allows any unit employee who has
averaged 4 hours per week in the 3-month period preceding the Deci-
sion and Direction of Election to be eligible to vote.
2 The Board also found that the Union’s request for review raised
substantial issues with regard to the Regional Director’s finding that the
Employer’s department heads are supervisors as defined in Sec. 2(11)
of the Act. The Board concluded, however, that the issue could best be
resolved through use of its challenge procedure. Accordingly, the
Regional Director’s Decision was amended to permit the Employer’s
department heads McGarvie, Lichon, and Lederle to vote under chal-
lenge and the Union’s request for review was denied in this respect.
Having carefully considered the entire record in this
proceeding with respect to the issue on review, we find,
contrary to the Regional Director, that the proper eligibil-
ity formula to apply in this case is the Davison-Paxon
formula.
Facts
Steppenwolf Theatre Company (the Employer) is a
prominent nonprofit regional theater company located in
Chicago, Illinois. Committed to the principle of ensem-
ble performance through the collaboration of a company
of actors, directors and designers, the Employer produces
an annual season that runs 12 months with performances
taking place 48 to 50 weeks per year. In 2002, the Em-
ployer produced 14 different shows staged in three dif-
ferent theaters. The Mainstage Theatre, a 510-seat
venue, hosts five productions a season, each running
eight performances a week for 8 to 9 weeks. The Studio
Theatre seats 180 persons and hosts four productions a
season that run for at least 4 weeks each. With a seating
capacity of 100, the Garage Theatre is the Employer’s
smallest venue and hosts up to four productions a season
that run 4 to 5 weeks each. In addition, the Employer
stages two productions per year that are educational in
nature for its Arts Exchange program for high school
students. Arts Exchange shows run about 4 to 5 weeks
and are performed in the Mainstage Theatre.
The Mainstage and Studio Theatres are located at the
Employer’s 1650 N. Halstead Street location, which also
includes the Company’s box office and telemarketing
operations. The Garage Theatre is located in a parking
facility a few blocks away at 1624 N. Halstead Street.
The Employer’s administrative offices and rehearsal hall
are located at 758 West North Avenue.
The Employer operates on a budget of $10 million per
year, $6 million of which is generated by ticket sales, and
the remainder of which is derived from charitable contri-
butions. The theater currently enjoys a base of some
23,000 subscribers who purchase tickets for an entire
season of performances.
In order to keep up with the workload generated by 14
annual productions totaling some 500 performances, the
Employer employs a permanent, full-time production
staff of 19 employees. This full-time staff is spread
across seven different departments: carpentry, scenic
artists, properties, wardrobe/costumes, electrics, sound,
and “running crew,” and performs the bulk (70 percent)
of the work necessary to produce the technical elements
of each production. The functions of each department as
they relate to the theatrical productions are essentially
implicit in their titles. The carpentry department is re-
sponsible for building the sets for each production. The
scenic artists paint the sets. The property department is

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
responsible for obtaining and/or building the props nec-
essary for rehearsals and performances. The wardrobe
department is responsible for costumes during the per-
formances, including any quick costume changes. The
electrical department is responsible for hanging and fo-
cusing lights in the theaters. The sound department sets
and adjusts the sound in the theaters. The running crew
is responsible for moving scenery and working lights,
sound, and stage carpentry during performances.
The Employer builds and produces each element of its
theatrical productions in an “assembly line” fashion. The
creation of the physical elements of a production begins
with the construction of the set at its 67,000 square foot
shop facility at 1010 North Kolmar Avenue. At the same
time, the properties department builds or acquires the
props needed for the production. Sets take between 2 to
6 weeks to build, depending on which performance space
the production will occupy. The completed sets and all
accompanying physical elements of the stage, lighting,
sounds, props, costumes, and scenery are then installed
in the theater. This process is referred to as “load-in.”
Lights are hung and focused by electricians, the sound
department employees set and adjust the sound equip-
ment to create the soundscape of the production, props
are brought into the theater, and the wardrobe department
begins to set up their use of the stage. Immediately prior
to a load-in, production employees must “strike” and
“load-out” all of the physical elements from the show
previously occupying the space. The Employer carefully
times strikes and load-ins so that they never occur in
more than one production space at a time.
Due to budgetary constraints that prevent a larger full-
time staff and because of the numerous tasks involved in
the various productions, the Employer utilizes the assis-
tance of part-time employees (also referred to as “over-
hires”) to supplement its regular workforce. Part-time
employees are drawn from an informal pool of employ-
ees that have previously worked for the Employer.
These part-time employees perform about 30 percent of
the work necessary to produce the technical elements of a
production. Some part-time employees work 1 or 2 days
and then are not needed for a period of time, while others
may work more hours per week or are used on a more
frequent basis.3
Part-time employees are used frequently during the
strike and load-in processes. In the electrics department,
part-time employees are used to strike and rehang lights,
and then to perform light focus for newly installed
shows. Typically, four to eight part-time employees are

3 The payroll records submitted by the Employer show a wide vari-
ance in both the frequency of work and the total number of hours
worked by part-time employees.
called in for these tasks, which occur on 2 to 3 days over
the course of a week. The work call (shift) for the elec-
tricians is generally between 8 and 10 hours. Also util-
ized regularly for set strikes and load-ins are part-time
carpenters. Typically, two part-time carpenters will work
for about 2 weeks at a time on a strike and load-in. The
work call for the carpenters is generally between 10 and
12 hours. Part-time employees also serve as “running
crew.”4 Crew members work the entire run of a show.
There are between two and eight crew members for each
show, depending on the size of the production. The run-
ning crew begins work an hour and a half before the cur-
tain rises and works approximately 4 hours. A
Mainstage production performs eight shows a week.
Thus, a member of the running crew on a Mainstage
show works approximately 32 hours a week for the run
of the show—8 weeks. A Studio or Garage production
performs five shows per week. Thus, a member of the
running crew there works at least 20 hours a week for 4
to 5 weeks at a time.
Other departments also use part-time employees. The
properties department uses part-time employees only
occasionally, when a special project requires it or when
there is an unusually large load-in or strike. It has never
used more than one part-time employee at a time during
the last 3 years. By contrast, the scenic arts department
only employs part-time employees. They typically work
30 to 40 hours a week, but not necessarily 52 weeks a
year. The same two persons have worked as part-time
employees in the scenic arts department for the last sev-
eral years. Occasionally, depending on the workload,
additional scenic artists work for a short period of time.
Finally, in addition to those carpenters engaged solely for
load-ins and strikes, the workload in the carpentry de-
partment requires the presence of two other part-time
carpenters for 48 to 50 weeks per year. These carpenters
work 40 hours a week, 30 to 35 weeks per year.
The record shows that many part-time employees re-
peatedly work for the Employer and that part-time em-
ployees have filled vacancies on the full-time staff.5 The
part-time employees work with the full-time employees
in the same locations, do the same jobs, utilize the same
skills, and use the same tools and materials as the full-
time employees.
Analysis
In devising eligibility formulas to fit the unique condi-
tions of any particular industry, the Board seeks “to permit
optimum employee enfranchisement and free choice, with-

4 The Employer does not employ any full-time running crew em-
ployees. It hires its running crew on a production-by-production basis.
5 At least nine of the Employer’s current full-time production em-
ployees initially worked for the Company in a part-time capacity.

STEPPENWOLF THEATRE CO. 71
out enfranchising individuals with no real continuing inter-
est in the terms and conditions of employment offered by
the employer.” Trump Taj Mahal Casino, 306 NLRB 294,
296 (1992), enfd. 2 F.3d 35 (3d Cir. 1993); DIC Entertain-
ment, L.P., 328 NLRB 660 (1999), enfd. 238 F.3d 434 (D.C.
Cir. 2001). The Board’s longstanding and most widely used
formula for voting eligibility for part-time or on-call em-
ployees is the Davison-Paxon formula, under which an em-
ployee is deemed to have a sufficient regularity of employ-
ment to demonstrate a community of interest with unit em-
ployees if the employee regularly averages 4 or more hours
of work per week for the last quarter prior to the eligibility
date. Davison-Paxon Co., 185 NLRB 21, 23–24 (1970).
In the instant case, the Employer maintains that the
Regional Director did not err in applying the Juilliard
formula because use of the formula affords the right to
vote to those employees with a reasonable expectancy of
future employment. The Union, on the other hand, ar-
gues that the Juilliard formula is overly inclusive and
that application of it in this case enfranchises employees
who lack a sufficient ongoing interest in the terms and
conditions of employment at the Employer to be permit-
ted an equal say with the Employer’s much more regular
employees as to whether they will be represented for the
purposes of collective bargaining. It proposes that the
appropriate eligibility formula is the Davison-Paxon
formula.
It is well established that the Davison-Paxon formula
is normally applied to determine eligibility of part-time
or on-call employees, absent a showing of special cir-
cumstances.6 Irregular patterns of employment in the
entertainment industry have sometimes presented special
circumstances, leading the Board to create various eligi-
bility formulas suited to those unique conditions.7 Con-

6 See, e.g., South Coast Hospice Inc., 333 NLRB 198 fn. 3 (2001);
Saratoga County Chapter NYSARC, 314 NLRB 609 (1994); Trump Taj
Mahal Casino, supra.
7 See, e.g., DIC Entertainment, supra (employees eligible where they
worked two productions for a total of 5 days over 1 year, or at least 15
days over a 1 year period); Juilliard School, supra (employees eligible
where they worked two productions for a total of 5 days over 1 year, or
at least 15 days over a 2 year period); American Zoetrope Productions,
207 NLRB 621 (1973) (employees eligible where they worked two
productions during the past year); Medion, Inc., 200 NLRB 1013
(1972) (employees eligible where they worked two productions for 5
days over 1 year).
No party argues that any of these eligibility formulas crafted by the
Board in other entertainment cases are applicable in this case. Those
cases are, in any event, factually distinguishable. In Medion, Inc.,
supra, the employer, unlike the present case, had no permanent staff
and hired crews by the production, sometime only for 1 day’s work and
then laid them all off. Similarly, in American Zoetrope Productions,
supra, the employer, whose business consisted almost exclusively of
the productions of commercials, employed most of the petitioned-for
employees typically for only 1 or 2 days at a time. In DIC Entertain-
ment, supra, unlike the instant case, the record was devoid of the details
trary to the Regional Director, we do not believe that the
record establishes special circumstances warranting de-
viation from the standard Davison-Paxon formula in this
case.
In choosing to apply the Juilliard formula, the Re-
gional Director relied on the fact that in both Juilliard
and the present case the employers produce theatrical
productions and have units composed of a core of per-
manent production employees (electricians, props em-
ployees, carpenters, etc.) who are supplemented by per-
diem part-time employees. Additionally, she relied on
the fact that the part-time production employees in both
cases are called in as needed on a project-by-project basis
from a fairly steady pool of employees and work along-
side the full-time employees. In light of these facts, the
Regional Director found that the formula found appro-
priate in Juilliard would also be appropriate in the pre-
sent case.
However, on examining the record, we find that the
critical consideration of the Board in Juilliard—“the
number and length of the employer’s stage productions
and the employment pattern resulting therefrom,”—is
very different in this case. Juilliard School, supra at 155.
Because the Employer is a professional theater company
and not an educational institution, its production sched-
ule is much more regular and constant than was the Juil-
liard School’s.8 Although the Board’s decision in Juil-
liard does not disclose the number of productions staged
by the school, it describes it as “relatively few.” Id. at
154. By contrast, the Employer mounts 14 productions a
season, totaling some 500 performances over the course
of 48 to 50 weeks during the year. Moreover, while Juil-
liard’s productions ran for three to four performances
each, the Employer’s productions typically run five to
eight performances a week for up to 8 weeks. Further-
more, the vast majority of Juilliard’s staff consisted of
on-call “per-diem” employees. Juilliard had a permanent
staff of only five employees who were assisted by a
group of up to approximately 155 “per-diem” employees,

of the employment history of the employees or any general employ-
ment pattern, in terms of the number of days, weeks, or months em-
ployees work on particular projects and the frequency with which they
returned to work for the Employer. Consequently, in the absence of
record evidence, the Regional Director modified the Medion formula to
best suit the circumstances in the television animation industry.
8 The Juilliard School is a degree-granting educational corporation
engaged in the teaching of music, drama, and dance to undergraduate
and graduate students, and its productions functioned as a training
vehicle for students. The Employer, on the other hand, is a professional
theater company. While the theater is involved in educational outreach
through its arts exchange program, its mission is to advance the vitality
and diversity of American theater by nurturing artists, encouraging
repeatable creative relationships, and contributing new works to the
national canon.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
retained on an as-needed basis. These “per-diem” em-
ployees worked in the various production departments
and performed the bulk of the work needed to produce
the technical elements of Juilliard’s productions.9 Thus,
it is clear that Juilliard relied almost exclusively on per-
diem employees. By contrast, a substantial majority (70
percent) of the Employer’s bargaining unit work is per-
formed by permanent full-time staff members.
Because the Regional Director considered the Em-
ployer’s industry to be the most significant factor in ap-
plying the Juilliard formula,10 she failed to consider the
Employer’s substantially greater size and the regularity
of its operations, the use of full-time staff to perform the
vast majority of work, and the much higher number of
hours worked by many individuals in its part-time staff,
all factors rendering the formula applicable to the small
infrequent operations of the Juilliard School inappropri-
ate in the present case.11 Applied here, the Juilliard for-
mula is overly inclusive, including those with only the
most peripheral interest in the Employer’s terms and
conditions of employment.12

9 There were between 1 and 60 employees in the costume shop; be-
tween 1 and 12 employees in the properties department; between 1 and
20 employees in the electrics department; between 1 and 60 employees
in the carpentry department scene shop; and between zero to six scenic
painters. Juilliard School, 208 NLRB at 153–154.
10 The fact that both the Employer and Juilliard operate theaters is
not conclusive. Contrary to the Employer’s contentions, the Board did
not announce in Juilliard a formula to be used in all future theater
cases, but rather explicitly tailored a formula to the unique facts of that
case.
11 The Regional Director also contrasted the Employer’s operations
with a retail sales operation (the business at issue in Davison-Paxon)
that was relatively continuous. In retail sales, the need for supplemen-
tal “on-call” employees varies from time to time but was possible to
occur at any given time. According to the Regional Director, the Em-
ployer’s need for part-time employees could only occur during certain
periods of time, and can vary by department and scale of the show. We
recognize that the Employer’s need for part-time employees can vary
depending on the size and scale of the show and that part-time employ-
ees are used most often during the strike and load-in phase. However,
we find that, similar to retail sales and other industries requiring part-
time supplemental staff, the Employer’s operations are continuous, as it
produces 14 productions over the course of 48 to 50 weeks per year,
and its need for part-time employees may occur at any given time. The
two part-time carpenters who work continuously in the scene shop
exemplify this need.
12 The Juilliard formula would permit part-time employees to vote
who have worked as few as 40 hours during the entire year, or less than
2 percent of the hours worked by the permanent full-time staff. The
facts here do not justify such an expansive formula.
The Employer provides a few isolated examples of employees who
worked on several productions throughout the course of a year but will
be disenfranchised as a result of the application of the Davison-Paxon
formula. However, “[a]n election necessarily occurs at a single mo-
ment in an employer’s otherwise fluid work force history.” Steiny &
Co., 308 NLRB 1323, 1325 (1992). We recognize, as the Board did in
one of its earliest decisions establishing an eligibility formula, that
As mentioned above, the Employer employs a substan-
tial permanent, full-time staff, supplemented in part with a
corps of part-time employees who themselves work fre-
quent, substantial hours, and supplemented further with
additional part-time employees who tend to work only a
few days a year. These latter employees have no real con-
tinuing interest in the terms and conditions of employment
at the Employer. The Davison-Paxon formula allows for
optimum employee enfranchisement by distinguishing
between these two groups of part-time employees, allow-
ing only the former to vote in the election.
Accordingly, we reverse the Regional Director’s appli-
cation of the Juilliard formula and remand this proceed-
ing to the Regional Director for application of the Davi-
son-Paxon formula.13
ORDER
This proceeding is remanded to the Regional Director
for appropriate action consistent with this Decision and
Order.

“absolute accuracy [in determining eligibility] is probably unattainable
here.” Alabama Drydock Co., 5 NLRB 149, 156 (1938).
13 Chairman Battista notes that Davison-Paxon is the formula that is
used for on-call employees, absent special circumstances. See the
discussion, supra. This formula has been applied in cases involving the
entertainment industry. See Trump Taj Mahal Casino, supra. It is far
from clear what “special circumstances” will warrant a departure from
Davison-Paxon. Indeed, in the entertainment industry cases cited in n.7
supra (in which Davison-Paxon was not applied), the Board does not
even mention Davison-Paxon. Perhaps, this is because the issue in
those cases was not Davison-Paxon vs. a special formula. Rather, it
was which of two special formulas to use. By contrast, the instant case
does raise the issue of Davison-Paxon vs. a special formula. For the
reasons set forth in this decision, Chairman Battista is satisfied that
there are no special circumstances herein warranting a departure from
Davison-Paxon. He does not pass on whether there were special cir-
cumstances in the cases cited in fn. 7.