United States Court of Appeals, District of Columbia Circuit
Pennsylvania Interscholastic Athletic Association, Inc., Petitioner
National Labor Relations Board, Respondent Office and Professional Employees International Union, Intervenor
November 16, 2018
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
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.
S. Schwarzwald argued the cause for intervenor in support of
respondent. With him on the brief was Timothy Gallagher.
N. Davies was on the brief for amicus curiae Association of
Minor League Umpires, OPEIU Guild 332, in support of
Before: Garland, Chief Judge, and Griffith and Pillard,
GRIFFITH, CIRCUIT JUDGE:
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
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.
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.
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.
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 ...