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Pennsylvania Interscholastic Athletic Association, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 14, 2019

Pennsylvania Interscholastic Athletic Association, Inc., Petitioner
v.
National Labor Relations Board, Respondent Office and Professional Employees International Union, Intervenor

          Argued November 16, 2018

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Maurice Baskin argued the cause for petitioner. With him on the briefs was Tony W. Torain.

          William E. Quirk was on the brief for amicus curiae National Federation of State High School Associations in support of petitioner.

          Eric Weitz, Attorney, National Labor Relations Board, was on the brief for respondent. With him on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

          Melvin S. Schwarzwald argued the cause for intervenor in support of respondent. With him on the brief was Timothy Gallagher.

          George N. Davies was on the brief for amicus curiae Association of Minor League Umpires, OPEIU Guild 332, in support of respondent.

          Before: Garland, Chief Judge, and Griffith and Pillard, Circuit Judges.

          OPINION

          GRIFFITH, CIRCUIT JUDGE:

         This case asks whether lacrosse officials working for the Pennsylvania Interscholastic Athletic Association (PIAA) are employees subject to the National Labor Relations Act (NLRA) or independent contractors exempt from its protections. "[T]here is no shorthand formula or magic phrase that can be applied to find the answer . . . ." NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968). Rather, we must evaluate all aspects of the relationship using several factors from the common law of agency as a guide. Because the weight of the evidence demonstrates that the officials are independent contractors, we grant PIAA's petition.

         PIAA develops and administers rules and procedures for 20 sports for more than 1,600 junior high and high schools in 12 geographic districts throughout Pennsylvania. It also selects officials to referee these sports. Officials must meet certain criteria to join and, once hired, must comply with certain rules to remain PIAA officiators.

         In 2015, the Office and Professional Employees International Union (the "Union") filed a petition with the National Labor Relations Board (NLRB) seeking to represent approximately 140 individuals who officiate lacrosse games in Districts VII and VIII. PIAA contested the Union's right to hold an election on three grounds. First, PIAA claimed that it is a political subdivision of Pennsylvania, not an "employer," and is exempt from the NLRA. See 29 U.S.C. §§ 152(2), 158. Second, PIAA argued that the lacrosse officials are independent contractors, rather than "employees," and thus not protected by the Act. See id. §§ 152(3), 157. Finally, PIAA contended that even if it is an employer and the officials are employees, the officials were not eligible for certification as a bargaining unit because of the sporadic nature of their work.

         The Regional NLRB Director rejected PIAA's arguments and directed that a Union election take place. PIAA petitioned the Board for review of the Regional Director's conclusions that it is an employer and the officials are employees. While that petition was pending, the Union conducted its election.

         The Board took up only the issue of whether the officials are employees or independent contractors. PIAA and Office & Prof'l Emps. Int'l Union, 365 NLRB No. 107, at 1 n.2 (July 11, 2017); see J.A. 745 (explaining that the Regional Director's conclusion that PIAA was not a political subdivision did not raise "a substantial issue warranting review"). Two members voted to affirm the Regional ...


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