Steven Scott Entertainment

National Labor Relations Board - Board Decisions

Mar 19, 2009

353 N.L.R.B. 1078 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 115
1078
SS1 Entertainment, LLC d/b/a Steven Scott Enter-
tainment and Associated Musicians of Greater
New York, Local 802, AFL–CIO. Case 29–AO–
00001
March 19, 2009
ADVISORY OPINION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
Pursuant to Sections 102.98 and 102.99 of the Board’s
Rules and Regulations, on January 5, 2009, the New
York State Employment Relations Board (NYSERB)
filed a petition for an Advisory Opinion as to whether the
Board would assert jurisdiction over the operations of
SS1 Entertainment, LLC d/b/a Steven Scott Entertain-
ment (the Employer) on the basis of its current standards.
In pertinent part, the petition alleges as follows:
1. An unfair labor practice proceeding (SU-60122) is
currently pending before the NYSERB.
2. Associated Musicians of Greater New York, Local
802 (the Union) and the Employer have taken opposing
positions concerning whether the Board has jurisdiction
over the Employer. The NYSERB seeks an advisory
opinion as to whether the NLRB will assert jurisdiction
over the Employer under the facts presented by the Em-
ployer.
3. The Employer is a New York corporation engaged
in the business of providing bands, orchestras, and re-
lated entertainment to corporate and individual clients.
In June 2002, the Employer purchased the name Steven
Scott Entertainment, the telephone number, and the web-
site address from Steven Scott Orchestras. According to
the Employer, various bands and orchestras submit mar-
keting materials to it. When the Employer receives an
inquiry from a customer seeking musical entertainment,
whether an individual or corporation, the Employer
meets with the customer to discuss the type of entertain-
ment required. The Employer will show the bands’ pro-
motional materials. After the customer picks a band, the
Employer will contract with the customer to provide the
entertainment. The Employer does not guarantee that the
band will be available and may request that the customer
select an alternate band. If the band is available, the Em-
ployer and the band enter into a contract for the event,
and agree on a dollar amount. The Employer pays the
band leader after the performance.
4. During the 12 months preceding September 29,
2008, the Employer had gross revenues in excess of
$500,000. Almost $60,000 of that revenue comes from
services performed outside the State of New York. In
addition, the Employer receives revenues exceeding
$125,000 from commercial clients in New York, some of
which would meet the NLRB’s jurisdictional standards.
5. The foregoing commerce data have been neither de-
nied nor admitted by the Union nor have they been con-
sidered by the NYSERB.
6. There are no representation or unfair labor practice
proceedings involving the Employer pending before the
Board.
7. Although all parties were served with a copy of the
petition for Advisory Opinion, no response was filed.
8. The Employer and the Union have filed position
statements with the NYSERB. The Employer contends,
inter alia, that the retail standard applies to its operation,
that the standard for asserting jurisdiction over a retail
enterprise is a gross volume of business over $500,000,
and that its operations satisfy that criterion. Therefore,
the Employer asserts that the Board should find that it
would assert jurisdiction over the Employer. The Union
contends that the appropriate jurisdictional standard to be
applied to a musical booking agency was articulated by
the Board in American Federation of Musicians (Penza
Theatrical Agency, Inc.), 177 NLRB 842 (1969), in
which the Board determined that “for jurisdictional pur-
poses the determinative amount is [the employer’s] in-
come rather than the value of the contracts booked by
him[.]” Id. at 842 fn. 1. Thus, the Union contends, the
Employer must undergo an audit to determine whether its
gross revenues, properly understood, meet that standard.
Having duly considered the matter, the Board1 is of the
opinion that, inasmuch as the Employer has gross annual
revenue in excess of $500,000 and direct inflow in ex-
cess of $50,000, the Employer would satisfy either the
Board’s retail or nonretail standards.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We find the facts set forth here distinguishable from those in Penza
Theatrical Agency, supra. In that case, the booking agency’s customers
paid the orchestras and bands directly, so the employer’s “gross volume
of business” consisted only of its commissions for brokering the ser-
vices, and fell below the Board’s jurisdictional standards. Here, the
Employer collects the fees from the customers and pays the orchestras
and bands itself. Thus, the “gross volume of business” need not be
limited to the Employer’s commissions for brokering the services.
STEVEN SCOTT ENTERTAINMENT 1079
Accordingly, the parties are advised that, based on the
allegations incorporated into the petition, the Board
would assert jurisdiction over the Employer under the
current standards.