In this case, the Writers Guild of America, East (Petitioner) sought to represent certain employees of A+E Factual Productions, LLC (Employer) for the purposes of collective bargaining. The primary legal issues before the National Labor Relations Board (NLRB) Regional Director were: (1) whether A+E Factual Productions, LLC was a statutory employer of the petitioned-for employees under Section 2(2) of the National Labor Relations Act (NLRA), and (2) whether certain disputed classifications—Co-Executive Producers, Post Supervising Producers, Supervising Producers, and Field Supervising Producers—were statutory supervisors under Section 2(11) of the NLRA, and if not, whether they shared a sufficient community of interest with the stipulated appropriate bargaining unit.

The Regional Director first addressed the employer status. A+E Factual Productions argued that its staffing provider, Atrium Staffing, LLC, was the sole employer of record, citing a Master Services Agreement (MSA) that designated Atrium as an "independent contractor" and "Employer of Record" with exclusive control over the manner and means of performing services. However, the NLRB has long held that contractual language does not solely determine employer status; rather, it is the actual control over the employment relationship that matters. Applying this principle, the Regional Director found that A+E Factual Productions exercised sufficient control over material terms and conditions of employment to be considered a statutory employer. This control included aspects of employee selection and terms of employment, wages, paid holidays, and the authority to request the cessation of an assignment, which demonstrated control over continued work. Furthermore, the petitioned-for employees were subject to A+E Factual Productions' personnel policies. While Atrium handled some administrative functions, the MSA’s disclaimers of Atrium’s responsibility for the "conduct of Referred Workers" and their "performance of Referred Worker Assignment duties" were inconsistent with A+E Factual Productions' claims of Atrium's independent supervision. Therefore, the Regional Director concluded that A+E Factual Productions was an employer within the meaning of Section 2(2) of the Act.

Next, the Regional Director analyzed the supervisory status of the contested classifications. The burden of proof rested on A+E Factual Productions to demonstrate supervisory status by a preponderance of the evidence, requiring evidence of individuals possessing statutory supervisory authority exercised with independent judgment.

Regarding Supervising Producers, Field Supervising Producers, and Post Supervising Producers, the Regional Director found insufficient evidence to establish supervisory status. There was no proof of authority to hire, transfer, suspend, lay off, recall, promote, discharge, reward, discipline, adjust grievances, or effectively recommend such actions. While the Employer argued they assigned work and responsibly directed others, the evidence was lacking. For assigning work, the record did not demonstrate authority to designate employees to specific places, shifts, or significant overall duties, nor did it show independent judgment in decisions like authorizing overtime. For responsible direction, the evidence of delegating tasks was generalized and lacked specific examples or accountability for the delegated work. The testimony that the "Supervising Producer" title was sometimes nominal due to tenure further undermined the claim of supervisory authority. Consequently, these classifications were not found to be statutory supervisors.

Concerning Co-Executive Producers, the Employer argued they held supervisory authority. The Regional Director found that Co-Executive Producers did possess and exercise authority to hire or effectively recommend hires. Testimony indicated they generally made hiring decisions and provided input that was routinely followed. While the Senior Executive Producer had, on rare occasions, overridden these decisions, this did not negate the effectiveness of the recommendation, as he did not conduct independent investigations of candidates. However, the record did not sufficiently establish that Co-Executive Producers possessed authority to transfer, suspend, lay off, recall, promote, discharge, reward, discipline, or adjust grievances, or to effectively recommend such actions. While they delegated tasks, the evidence did not demonstrate independent judgment in deciding who would perform specific tasks or that they had the authority to take corrective action or were subject to adverse consequences for the performance of their subordinates. Despite the lack of evidence for other supervisory indicia, the authority to hire or effectively recommend hires was deemed sufficient to exclude Co-Executive Producers from the bargaining unit as statutory supervisors.

Finally, the Regional Director addressed the community of interest for the Supervising Producer, Field Supervising Producer, and Post Supervising Producer classifications, which were not found to be supervisors and were therefore eligible for inclusion in the bargaining unit. The parties had stipulated to an appropriate unit of various producer roles, but not these specific classifications. The Regional Director applied several factors: organizational grouping favored inclusion as they worked on specific television series alongside other producers. Distinct skills and job functions weighed against inclusion as their duties differed from other producers, and their skills were not clearly demonstrated to align with other producers. Functional integration favored inclusion, as they worked on different aspects of television production and had daily contact with other unit employees during remote meetings. Interchange weighed against inclusion due to limited evidence of temporary assignments between groups. Terms and conditions of employment, including being subject to the same A+E policies and having similar fringe benefits, weighed in favor of inclusion. Common supervision by the Showrunner, Line Producer, and Co-Executive Producer also supported inclusion. On balance, the Regional Director concluded that these classifications shared a sufficient community of interest with the other employees in the petitioned-for unit to be included.

In conclusion, the Regional Director directed an election in an appropriate unit that included the Supervising Producer, Field Supervising Producer, and Post Supervising Producer, but excluded Co-Executive Producers due to their supervisory status. The election would be conducted by mail ballot.

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