United States Court of Appeals
                         For the First Circuit


No. 20-1157

                   NATIONAL LABOR RELATIONS BOARD,

                               Petitioner,

                                     v.

                           WANG THEATRE, INC.,

                               Respondent.


               APPLICATION FOR ENFORCEMENT OF ORDERS OF
                  THE NATIONAL LABOR RELATIONS BOARD


                                   Before*

                          Lynch, Circuit Judge,
                       and Saris**, District Judge.


     Jared D. Cantor, with whom Usha Dheenan was on brief, for
Petitioner.
     Arthur Gershon Telegen, with whom Seyfarth Shaw LLP was on
brief, for Respondent.




     *    Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's decision.    The remaining two panelists
therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
     **   Of     the    District     of      Massachusetts,   sitting   by
designation.
November 30, 2020
            LYNCH,    Circuit    Judge.     The   NLRB   petitions   for

enforcement of its October 30, 2019 order reinstating its November

10, 2016 decision, which found that respondent Wang Theatre, Inc.

(WTI) committed labor relations violations by failing to bargain

with the Boston Musicians' Association (BMA).        We agree with WTI

that the Board made errors of law and fact in certifying a

bargaining unit which had no employees and deny enforcement of the

petition.       Because we see no point in remanding, we vacate the

Board's October 30, 2019 and November 16, 2016 orders.

                                I. Background

            On January 5, 2016, BMA petitioned the Board to become

the union representative for musicians employed by WTI.1             WTI

operates the Wang Theatre, part of the Citi Performing Arts Center

(or Boch Center) in Boston.         BMA petitioned to represent local

Boston-area musicians "sourced" by WTI to perform in shows brought

to the Wang Theater by independent producers.

            On January 12, 2016, WTI submitted a letter to the

Regional Director, arguing BMA's petition should be dismissed.       It



            1  Section 9 of the NLRA permits the Board to conduct
elections and certify a union representative for a "bargaining
unit" of employees. See 29 U.S.C. § 159. Once a unit is certified
and a union representative is elected the employer must bargain
with the union in good faith.

the employer fails
to do so, the Board may find the employer has committed an unfair
labor violation and petition this court for an enforcement order.

3 -
stated, "WTI has not employed any musicians since 2014."            WTI also

argued that in any event the producers, not WTI, controlled the

musicians' terms of employment, and WTI had no control over the

topics over which BMA wished to negotiate.

           The NLRB Acting Regional Director held a representation

hearing on January 13, 2016.            WTI's general manager, Michael

Szcepkowski, and BMA's Secretary-Treasurer, Mark Pinto, testified

at the hearing and the parties submitted a number of exhibits.

The exhibits included a list of the performances at WTI in the two

years before the hearing, the number of hours worked by musicians

in the past two years, wage scales for sourced musicians, examples

of   contracts   between   WTI   and   show   producers,   WTI    and   BMA's

collective bargaining agreement which expired in 2007, examples of

collective bargaining agreements between other venues and BMA, and

a work history report of the work certain musicians performed at

WTI.   Both parties also submitted post-hearing briefing.

           At the hearing, WTI argued again that there were no

current employees in the proposed bargaining unit.               Szcepkowski

stated that in 2014 producers for two travelling Broadway musicals,

Annie and White Christmas, asked WTI to source local musicians.

WTI recruited eight musicians for the production of Annie and

thirteen for White Christmas.          In 2015 WTI hosted the traveling

Broadway musical Elf, but did not source any musicians.                   The

producers of Elf contracted directly with the American Federation


                                  - 4 -
of Musicians to hire local musicians for that production, and WTI

had no involvement in that process.       Szcepkowski also stated WTI

had agreed to host another traveling Broadway musical, The Wizard

of Oz, in 2016.    The contract was not yet finalized at the time of

the hearing, but WTI had as yet received no request to source local

musicians for that production either.        WTI now informs us that

Annie and White Christmas were the last productions to ask it to

source musicians.    It has not done so in over six years and has no

plans to do so in the future.

          Szcepkowski also testified about a bargaining agreement

between BMA and WTI that was in place between 2004 and 2007.         He

stated the agreement lapsed because "[WTI] reached a point where

. . . [it] felt that [it] could not bargain over things that [it]

didn't control."

          WTI     reiterated   its   arguments   in   its   post-hearing

briefing, stating, among other things, "no musicians would be

eligible [to vote in a union election] . . . under any prior-

applied [eligibility] formula."

          The Acting Regional Director rejected WTI's objections

and ordered a union election.        She first found that WTI was the

sole employer of the sourced musicians.      She accepted that WTI had

not sourced local musicians in over a year and found "[WTI] could

not predict when local musicians would be hired for a performance

at the Wang."     In light of these findings, it is uncontested that


                                 - 5 -
under the Board's standard Davison-Paxon test for membership in a

bargaining unit, WTI is correct that there were no voting-eligible

employees in the proposed unit.    

(1978).   But the

Regional Director instead applied the more expansive Julliard

School test.    

(1974).   She stated, "the facts of

this case show a 'special circumstance' aligned with that of

Julliard School . . . . [because] [t]he petitioned-for musicians

work irregular employment patterns."

             Under the Julliard School test, musicians who performed

in the 2014 production of Annie and White Christmas were eligible

to vote in the union election for the bargaining unit.       Finding

that WTI employed the sourced musicians -- and that there were

current employees in the unit under the expansive Julliard School

standard -- the Board ordered a union election.    Any musician "in

the unit who worked for [WTI] on two productions for a total of

five working days over a one-year period preceding January 22,

2016, or a total of fifteen days over a two-year period preceding

January 22, 2016" was eligible to vote.

             WTI timely filed a request for review of the Acting

Regional Director's decision with the Board.       WTI argued again

that the she erred by certifying a bargaining unit that had no

employees.     It also challenged her finding that WTI employed the

sourced musicians, and stated "there has been no work in the




                                 - 6 -
putative unit in over a year."         The Board denied WTI's request for

review in a one-line order.

                While WTI's request for review was pending, BMA was

elected union representative for the sourced musicians who worked

in the 2014 productions of Annie and White Christmas.             After the

election it attempted to bargain with WTI.           WTI responded that it

was "at a total loss as to what we could possibly bargain over at

this time.       As you know, there has not been a single employee in

the unit since 2014.          As you also know, the producers have been

hiring their own musicians. . . .             There does not appear to be

anything for the BMA and WTI to negotiate about."

               BMA then filed a charge with the Board, alleging WTI

committed an unfair labor practice under Section 8(a)(1) and (5)

by refusing to bargain.2          The Board's general counsel issued a

complaint.       WTI timely responded, raising the same arguments it

presented to the Acting Regional Director at the representation

hearing, along with additional arguments that its refusal to

bargain was reasonable even if the unit was properly certified.

               The general counsel then moved for summary judgment

because WTI "admit[ted] its refusal to bargain with [BMA]."              The

Board       granted   the   general   counsel's   motion,   rejecting   WTI's


        2 Section 8(a)(5) makes it "an unfair labor practice for
an employer . . . to refuse to bargain collectively with the
representatives of his employees, subject to the provisions of
section 159(a) of this title." 29 U.S.C. § 158.


                                      - 7 -
arguments on the grounds that they had been raised and rejected at

the representation hearing.           Because WTI's refusal was not in

dispute, the Board granted the general counsel's motion for summary

judgment and ordered WTI to "cease and desist, to bargain on

request with the Union, and, if an understanding is reached, to

embody the understanding in a signed agreement."

           WTI moved for reconsideration.             The Board denied this

motion   because   WTI   had    not    shown   that    one   of   the   limited

circumstances    where   reconsideration       is   permissible     under   the

NRLB's procedural rules was present.           Acting Chairman Miscimarra

wrote separately to emphasize the narrow grounds on which the

Board's decision rested.         He agreed with WTI that there was a

"reasonable   question   regarding       whether    the   Theatre   currently

employs any musicians."        And he stated, "[o]n the one hand . . .

I agree that the project-by-project employment that often occurs

among musicians and other employees in the performing arts warrants

specialized     evaluation     of     questions     regarding     appropriate

bargaining units and voter eligibility.               Conversely, the Board

cannot appropriately conduct an election when the bargaining unit

consists of no employees."          But because the issues could only be

raised at the representation hearing, he concluded, "[a]t this

juncture, [WTI's] arguments challenging 'employer' status can only

legitimately be raised before a court of appeals if [WTI] decides

to appeal the Board's test-of-certification order."


                                      - 8 -
             In 2017, the Board first petitioned this court for an

enforcement order.       Before we heard argument, however, the Board

moved to remand for consideration of whether its then-recent

decision in Hy-Brand Industrial Contractors, Ltd., 365 N.L.R.B.

No. 156 (2017) changed the standard for determining whether a joint

employment relationship existed in this case.               We remanded the

case.   On October 30, 2019, the Board affirmed its original

decision and reissued its original cease and desist order.                In

this second order the Board gave several reasons why the joint

employer issue did not change its original analysis and reinstated

its original November 10, 2016 order.            The Board now petitions a

second time for an enforcement order.

                                II. Discussion

             We review both the enforcement orders and the underlying

representation proceeding for the purpose of "enforcing, modifying

or setting aside in whole or in part the order of the Board."             29

U.S.C. § 159(d).       "The Board must prove that the employer refused

to bargain with the representative of a unit of 'employees' . . .

that was properly certified."           N.L.R.B. v. Ky. River Cmty. Care,

Inc., 

, 712 (2001) (citations omitted).

             Because    "the    Board    is   primarily     responsible   for

developing     and   applying    a   coherent    national    labor   policy,"

N.L.R.B. v. Ne. Land Servs., Ltd., 

, 478 (1st Cir.

2011) (quoting N.L.R.B. v. Bos. Dist. Council of Carpenters, 80


                                     - 9 -
F.3d 662, 665 (1st Cir. 1996)),      "[a] Board order must be enforced

if the Board correctly applied the law and if its factual findings

are supported by substantial evidence on the record."

§ 160(e),(f); Yesterday's Children, Inc. v. N.L.R.B.,

, 44 (1st Cir. 1997)).          We consider the record as it

was before the Board at the time of the hearing.             Telemundo de

P.R., Inc., v. N.L.R.B., 

, 277 (1st Cir. 1997).

            But this court does not "simply 'rubber stamp' the

decisions of the Board."     Yesterday's Children, 

. "We review the Board's conclusion[s] of law de novo."           Posadas

de P.R. Associates, Inc. v. N.L.R.B., 

, 90 (1st Cir.

2001) (citing N.L.R.B. v. Beverly Enters.-Mass., Inc., 

, 22 (1st Cir. 1999)); see also N.L.R.B. v. Int'l Broth. Of

Teamsters, Local 251, 

, 55 (1st Cir. 2012) (quoting

same).   Importantly, "[t]he Board is not free to ignore its own

precedent."     Yesterday's Children, 

n.15.

"[T]he   NLRB   cannot   depart   from   its   own   precedent    unless   it

articulates reasons for the departure."          Good Samaritan Medical

Center v. N.L.R.B., 

, 640 (1st Cir. 2017) (citation

omitted).

            WTI argues the Board erred as a matter of law and fact

in certifying a bargaining unit of sourced musicians at WTI for a




                                  - 10 -
number of reasons.3   We address only its first argument that there

were no employees in the bargaining unit because WTI had not

sourced musicians since 2014 and had no plans to and had not been

requested to do so for any future production.   We agree the Board

misapplied the law and its own case law in certifying a no-employee

bargaining unit.4     The Board has not adequately explained this

departure from its own case law.

          Prior precedent of the Board has set out the fundamental

requirements for certifying a collective bargaining unit.        A

collective bargaining unit must consist of at least two employees.



     3    WTI also argues that (1) when WTI did source musicians,
they were employed by the producers, or at least jointly employed
by both the producers and WTI, so it was inappropriate to certify
a unit with WTI as the sole employer; (2) WTI has no control over
the topics over which BMA wishes to negotiate; and (3) BMA is
attempting to use the bargaining process for an unlawful purpose.
     4    The Board argues that our decision in Massachusetts
Society For Prevention of Cruelty to Children v. N.L.R.B., 

, 45 (1st Cir. 2002), requires us to give considerable
deference to the Board's "selection of an appropriate bargaining
unit." But Massachusetts Society does not require us to defer to
the Board's legal conclusions or permit it to disregard its own
precedents.   Posadas de P.R. Associates, 

;
Yesterday's Children, 

n.15. Moreover, the
issue WTI raises in this appeal regarding whether there were any
members of the proposed bargaining unit was not raised in
Massachusetts Society. There, we deferred to the Board's judgment
as to whether each facility that the employer operated should be
a separate bargaining unit or whether the bargaining unit should
encompass similar employees at different 

. We did not reach the question of the deference we give to the
Board's formula for calculating the number of eligible employees
in the units it has selected.


                               - 11 -
Foreign Car Center, Inc., 

, 320 (1960).      "[T]he

principle of collective bargaining presupposes that there is more

than one eligible person who desires to bargain."

not bargain with a single- or no-employee bargaining unit if

it "does not need or intend to hire . . . [additional workers]."

Westinghouse Electric Corp., 

, 289 (1969).

          The Board's "longstanding and most widely used test" to

determine the membership of a bargaining unit at any given time is

the Davison-Paxon formula.   Trump Taj Mahal Assocs., 

, 295 (1992) (citing Davison-Paxon 

).

The Board has repeatedly endorsed the Davison-Paxon test.       See

Columbus Symphony Orchestra, Inc., 

, 524 (2007)

("The Board has made it clear that the Davison-Paxon formula should

be followed absent a showing of special circumstances." (citations

omitted)); Trump Taj Mahal 

("[N]o

single eligibility formula must be used in all cases, [but] the

Davison-Paxon formula . . . is the one most frequently used, absent

a showing of special circumstances.").      Under this test, any

employee who "regularly averages 4 hours [of work] or more per

week for the last quarter prior to the eligibility date [in a

particular bargaining unit]" is a member of that unit.    Davison-

Paxon 

.   It is undisputed that none of the

musicians met this eligibility test.




                              - 12 -
          In "special circumstances" the Board has applied a more

expansive standard.          The Julliard School formula is one such

special test.    In Julliard School the Board certified a bargaining

unit of stage hands and other theater staff who worked at the

Julliard School theater.        The Board certified a bargaining unit

comprising of "all employees of who have been employed by . . .

[the Julliard School] during two productions for a total of 5

working days over a 1-year period, or who have been employed by .

. . [Julliard] for at least 15 days over a 2-year period" -- the

same criteria the Board applied in this 

.

              In Julliard School the Board stated it used this more

expansive test because "the record show[ed] that many of the[]

[Julliard] employees work for periods of time which indicate

repetitive     employment     and   which    permit     them     reasonably    to

anticipate reemployment in the near or foreseeable future."

  The Julliard School relied on up to 155 stage hands,

including dozens of employees in its props, costume, and makeup

departments.

      But   because   it    staged   fewer

productions    than   commercial    theaters      and   generally    had   lower

production values than commercial productions, all stage hands

(including carpenters, painters, and electricians), maintenance

staff, and employees in the costume, makeup, and props departments,

were employed on a per diem basis.

      The total number


                                    - 13 -
of per diem employees ranged from 0 to 155 depending on the time

of year.

hands were nonetheless longstanding

employees of the Julliard School.          Julliard "ma[de] a practice of

hiring employees who [were] experienced with the facilities at

Julliard and ha[d] proven through past performance their capacity

to perform their job functions."

      These stage hands

were essential to Julliard's core function as a teaching theater.

            The     Board   stated   Julliard's     unique    situation    as   a

training theater made it "not comparable" to the commercial New

York City theater industry.

    "Julliard's theatrical

productions [were] not extravagant commercial undertakings which

may run for many weeks and which employ large, highly experienced

casts."

of that case the Board

found that a permissive unit eligibility standard was appropriate.

       The key consideration was that Julliard employed a

large, stable number of "per diem" workers who reasonably expected

to work in the future.

            In Kansas City Repertory the Board upheld the Regional

Director's use of the Julliard School formula to certify a unit of

musicians    who    performed   at   the   Kansas   City     Repertory.5    356




     5    In reviewing the Regional Director's decision, the Board
never reached the issue of whether the Davison-Paxon formula would
have been more appropriate, because the Repertory argued only that


                                     - 14 -
N.L.R.B. 147, 147 (2010).       The Repertory produced and staged

approximately seven or eight productions a year.

  The

performance season ranged from nine and a half to ten months each

year.

musicians "as needed" for the

subset of productions that required live music.

staged musical productions each season, although the

type of music and the musicians it employed might vary.

employees there was a foreseeable expectation of future

employment. Notably, in Kansas City Repertory all of the employees

petitioning for union representation would have been eligible

under the Davison-Paxon test.

  Indeed, the musicians

seeking union representation in Kansas City Repertory argued in

favor of applying the Davison-Paxon formula.

that the Regional Director "properly processed" the petition.

The Regional Director applied the Julliard School standard

to avoid the risk that Davison-Paxon would exclude other eligible

employees who worked at the Repertory less frequently because of

the seasonal nature of the work, and the fact that the types of

musicians who were employed might vary somewhat based on the

artistic decisions the Repertory made for a given year.

   As in Julliard School, at the representation hearing the

Regional Director recognized "[a] critical consideration in such


no formula was appropriate when all of the employees in a proposed
bargaining unit are part-time or 

.


                                - 15 -
an analysis is the employment pattern that is the result of the

length and number of relevant productions put on by the employer

as well as the extent that the employer relies on on-call or per

diem employees to perform its work."

            In other cases, the Board has declined to extend the

Julliard School formula.     In Columbus Symphony Orchestra the Board

reversed a representation hearing decision applying the Julliard

School formula to part-time stage-hands who assisted with seasonal

productions at a professional 

.        The

Board noted that "in recent years . . . it has consistently applied

the    standard   Davison-Paxon    formula   to    entertainment    industry

employers that operate on a year-round basis."

    In

Columbus Symphony Orchestra, the fact that per diem workers worked

at sporadic events, like summer outdoor venue performances, and

supplemented a large permanent workforce year-round, was not a

special circumstance justifying departure from the Davison-Paxon

formula.

   Of particular importance to the Board, "the

employment pattern over the past several years d[id] not establish

that   stagehands   who   worked   during    the   summer    of   2006   could

reasonably expect they would be employed in the summer of 2007."

reversed the Regional Director's decision

to apply the Julliard School formula in Steppenwolf Theatre Co.,

, 71 (2004).          In Steppenwolf the Board stated


                                   - 16 -
"[b]ecause [Steppenwolf] is a professional theater company and not

an educational institution, its production schedule is much more

regular    and    constant    than   was    the   Julliard      School's."

    Board,   "[b]ecause     the      Regional     Director

considered the Employer's industry to be the most significant

factor in applying the Julliard formula, 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."

    In Wadsworth

Theatre Mgmt., 

, 123 (2007) the Board again held

that the Julliard School formula should not be applied to a

professional theater that used part-time or per diem workers for

only a small portion of its operations.

            The    Acting    Regional      Director's   decision     to    use   the

Julliard    School    formula    here      is   contrary   to    each     of   these

precedents.6      The NLRB decisions since Julliard School make clear

that the Board's decision in that case rested on the particular

facts of that case.         See, e.g., Columbus Symphony 

.          WTI is not factually similar to Julliard.



     6    In its brief, WTI further argues "Congress has rejected"
the approach the Board took at the representation hearing. Because
we find that the Board failed to adequately justify its approach
under its own precedents, we do not reach the statutory question
WTI raises.


                                     - 17 -
WTI is a professional theater that does not produce its own shows,

and it exercises no artistic control over the performances at the

theater.          Julliard was a non-profit teaching theater, producing

and    staging       student-run    performances.        Importantly,       Julliard

employed a stable group of per diem workers who were critical to

Julliard's mission.           Julliard 

.                 It

could       not    function   as   a   teaching      theater    without     regular,

experienced stagehands and costume, props, and makeup departments.

        In contrast, to the extent WTI employed musicians at

all, it did so as an added service for producers who brought shows

to    the    Wang.      Sourced    musicians     were   not    central      to    WTI's

operations -- and, in fact, it has continued to operate for over

six years without them.            Nor could sourced musicians reasonably

expect       future    employment      with   WTI.      At     the   time    of     the

representation hearing WTI had not sourced musicians in over a

year and had no specific plans to do so in the future.                    The Acting

Regional Director did not address any of these factual differences

when deciding to apply the Julliard School formula.

                  Further, the Acting Regional Director did not conduct

any analysis of the "critical consideration . . . of the length

and number of relevant productions put on by the employer as well

as the extent that the employer relies on on-call or per diem

employees to perform its work."               See Kansas City 

.         Sourced musicians played only a tangential role


                                        - 18 -
in WTI's overall operations, and WTI employed them, if at all,

only sporadically.         An analysis of this "critical" issue would

have weighed strongly against applying the Julliard standard to

WTI.

            Instead,   the    Acting   Regional   Director     focused    on   a

consideration that is not a "special circumstances" warranting

departure    from    the   Davison-Paxon     formula   under    the   Board's

existing case law.         The Acting Regional Director stated "[t]he

Board has found that 'special circumstances' include irregular

employment patterns within the entertainment industry."                  Yet in

Steppenwolf Theatre and Columbus Symphony Orchestra the Board

reached the opposite conclusion -- stating that Davison-Paxon

remained the usual test for part-time employment in entertainment

; 350 N.L.R.B. at 524.

            The Acting Regional Director also appeared to give great

weight to the fact that WTI and BMA had reached a bargaining

agreement in 2004, even though that agreement expired nearly ten

years   prior   to   the    representation    hearing.       She   relied      on

Szcepkowski's testimony that the division of authority between

producers and WTI had not changed since 2007, when the prior

bargaining agreement lapsed. Yet Szcepkowski stated at the hearing

that agreement lapsed because WTI felt that it no longer controlled

the topics over which BMA wished to negotiate.               Nothing in the

record indicates that the business had not changed between 2004,


                                   - 19 -
when WTI entered into the bargaining agreement, and 2016, when the

representation hearing occurred.

              By applying the Julliard School formula in this case,

the Board disregarded its precedents.                 It did not consider the

factual differences between Julliard School and this case, or the

"critical consideration" identified in Kansas City Repertory, or

its   decisions     in    Steppenwolf      Theatre     and   Columbus    Symphony

Orchestra,     which     found   that    the     Davison-Paxon   formula   should

ordinarily apply to part-time workers in the music industry.                    And

it gave no reasons for departing from its own well-established law

in this area.     See Good Samaritan Medical 

.

We conclude it was a legal error, and contrary to the Board's own

precedents, not to apply the Davison-Paxon formula in this case.

              Under the appropriate formula, certifying the bargaining

unit clearly violated the prohibition against empty bargaining

units set out in Foreign Car Center, 

.

It is uncontested that no one would have been eligible to vote in

the   union    election     under   the    Davison-Paxon      formula,     so   the

bargaining unit -- properly defined -- did not contain a single

member.7      For that reason, the Board has not met its burden to


      7   The Board claims that by stating that it has not sourced
musicians in over six years "[WTI] . . . seeks to draw the Court's
attention to alleged factual developments outside the hearing
record, which impermissibly shifts the focus from the record
evidence as it existed before the Board." See Telemundo de P.R.,

(court of appeals may not consider evidence


                                        - 20 -
"prove that the employer refused to bargain with the representative

of a unit of 'employees' . . . that was properly certified."       Ky.

River Cmty. Care, 

.

          Accordingly,   we    deny     the   Board's   petition   for

enforcement.    Because there is no dispute that there were no

employees at the time of certification in the BMA bargaining unit

under the appropriate formula, we see no point in remand.          See

N.L.R.B. v. Wyman-Gordon Co., 

, 766-67 n.6 (1969).      We

vacate the Board's October 30, 2019 and November 10, 2016 orders

without further proceedings.   Costs are awarded to Respondent Wang

Theatre, Inc.




not in the record before the Board at the time of the hearing).
Our decision does not rest on the fact that no musicians have
worked in the BMA bargaining unit in over six years. At the time
of the hearing it was apparent that there were no employees
currently working and no employees with a reasonable expectation
of future employment.


                               - 21 -