Blockbuster Pavilion

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 129 (N.L.R.B. 1994)

129
314 NLRB No. 27
BLOCKBUSTER PAVILION
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that in sec. II,C, of his decision, the judge erroneously
attributed certain statements made to employee Katherine Canady in
1992 to Crew Chief McKinney rather than Crew Chief Panter. This
error does not affect our adoption of the judge’s finding.
In adopting the judge’s finding that the Respondent’s crew chiefs
were statutory supervisors, we find it unnecessary to rely on the
crew chiefs’ purported evaluation authority.
In adopting the judge’s analysis and findings with respect to the
Union’s majority status at the time it made a valid demand for rec-
ognition in 1991, we note that the Union had obtained majority sta-
tus even if, as the Respondent alleges, Katherine Canady, Jim
McManus, and Janice Lorenz should not be counted as 1991 em-
ployees. We note in this connection that, contrary to the Respond-
ent’s assertion, the judge did not include Susan Lorenz in the unit
nor count her authorization card in determining the Union’s majority
status.
2 In adopting the judge’s conclusions that the Respondent discrimi-
nated against James Shumaker in 1991 and Katherine Canady in
1992 in violation of Sec. 8(a)(3) and (1) of the Act but did not vio-
late Sec. 8(a)(3) when it stopped assigning Michael Kelly in 1991,
we note that, although the judge does not explicitly refer to Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), his analysis is consistent with that
decision. Further, we adopt the judge’s conclusion that the Respond-
ent violated Sec. 8(a)(3) by using Canady more sparingly after July
16, 1992, than it had before that time. In so doing, we note that,
although the judge refers to testimony at the hearing regarding
Canady’s work performance, the Respondent has at no point in this
proceeding relied on any work-related problems concerning Canady
in defending its alleged action and instead simply denies that it
failed to call her.
In adopting the judge’s dismissal of the 8(a)(3) allegation with re-
spect to Kelly, we note that the record evidence establishes that
Kelly’s overtime complaints had no connection with the Union and
concerned only himself. They therefore did not constitute concerted
activity under Sec. 7.
Finally, in adopting the judge’s conclusion that the Respondent did
not violate Sec. 8(a)(3) with respect to employees Larry Carter, Bob
Donnell, and Jim Duncan, we rely on the General Counsel’s failure
to establish that they were interested in and available for reemploy-
ment, in light of the judge’s discrediting of their asserted reasons for
not attending the March 3, 1992 meeting and the absence of evi-
dence that they had attempted to apply.
3 In adopting the judge’s recommended Order, we shall delete his
reference to the 1993 season, and we leave to the compliance stage
of this proceeding the determination of the manner in which the Re-
spondent should make whole and offer employment to the 20 former
employees it failed to consider for reemployment in 1992.
4 Member Cohen does not necessarily agree that events subsequent
to the commission of the unfair labor practices can never be relevant
to the Gissel issue. However, he agrees in this case that the subse-
quent events, as alleged, are insufficient to preclude the entry of a
Gissel order.
Charlotte Amphitheater Corporation d/b/a Block-
buster Pavilion and International Alliance of
Theatrical Stage Employees and Moving Pic-
ture Machine Operators, Local 322. Cases 11–
CA–14684, 11–CA–14898, and 11–CA–14996
June 27, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On April 28, 1993, Administrative Law Judge Don-
ald R. Holley issued the attached decision.
The Respondent filed exceptions, a supporting brief,
a reply brief, an answering brief, and a motion to re-
open the record. The Charging Party filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
The Respondent has moved to reopen the record to
introduce evidence that in 1993 it placed on its ‘‘active
work roster approximately thirteen of the twenty Union
adherents who were identified as bona fide complain-
ants’’ in this case and that ‘‘over sixty percent of the
alleged discriminatees’’ are now working for the Re-
spondent. In these circumstances, the Respondent ar-
gues that a remedial bargaining order issued under
NLRB v. Gissel Packing Co., 395 U.S. 575, 614
(1969), is no longer warranted. For the following rea-
sons, we disagree and we deny the motion to reopen.
The Board continues to adhere to the view that the
determination whether a Gissel bargaining order is
warranted in a given case should be made on an eval-
uation of the circumstances at the time the unfair labor
practices were committed. Action Auto Stores, 298
NLRB 875 (1990), enfd. mem. 951 F.2d 349 (6th Cir.
1991), citing Highland Plastics, 256 NLRB 146, 147
(1981).4 Thus, evidence of the employment of
discriminatees subsequent to the unfair labor practice
hearing, such as that proffered by the Respondent, is
not relevant to a determination of the propriety of
issuing a bargaining order. In any event, even assum-
ing the accuracy and relevance of the proffer, we find
no reason for vacating the bargaining order. The viola-
tions committed by the Respondent were numerous, se-
rious, and affected a large number of employees, as the
judge correctly noted. That the Respondent has placed
a number of the discriminatees on its 1993 work roster
will not necessarily reassure all the employees exposed
to the Respondent’s strong expressions of animus, in-
cluding threats of closure, that they would risk nothing
in supporting the Union in any renewed organizing
campaign. Further, the asserted fact that the Respond-
ent offered employment in 1993 to employees who
were discriminated against in 1992, without making
them whole for the period of discrimination, is hardly
an assurance to those employees that they can engage
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless otherwise indicated.
in protected activity without suffering adverse con-
sequences. In short, in the words of Gissel, we find
that even assuming circumstances as represented in the
Respondent’s proffer, ‘‘the possibility of erasing the
effects of past practices and of assuring a fair election
. . . by the use of traditional remedies . . . is slight,’’
and the ‘‘employee sentiment once expressed through
[authorization] cards would, on balance, be better pro-
tected by a bargaining order.’’ Id. at 614–615.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Charlotte Amphitheater
Corporation d/b/a Blockbuster Pavilion, Charlotte,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Make whole employees James Shumaker, Kath-
erine Canady, and the 20 employees named in the rem-
edy section of the decision for loss of earnings they
suffered as a result of the discrimination against them,
with interest, and offer immediate employment as
stagehands to the 20 employees whose names are set
forth herein.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT inform employees they were denied
work opportunities because they engaged in union ac-
tivities.
WE WILL NOT threaten you with discharge if you en-
gage in union activity.
WE WILL NOT threaten to burn our facility before al-
lowing the Union to represent employees.
WE WILL NOT interrogate you concerning your union
sentiments and the union sentiments of other employ-
ees.
WE WILL NOT deny you work opportunities because
you join or support the Union.
WE WILL NOT refuse to consider former employees
for employment in order to undermine the strength and
majority standing of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole employees James Shumaker,
Katherine Canady, Amanda Ayers, Bob Bergen, John
Broadus, Dean Burchett, Laura Carter, Byron Fleming,
Bruce Grier, Karl Hoffman, Benjamin Howe, P. W.
Jenkins, Mike Kelly, Michael Mariette, Mike Murphy,
Michael Neely, Sharon Redmond, James Shumaker,
David Stevens, Craig Taylor, Carl Welch, and James
Holman, with interest, and offer those employees who
were not considered for employment in 1992 imme-
diate employment as stagehands.
WE WILL recognize and, on request, bargain in good
faith with International Alliance of Theatrical Stage
Employees and Moving Picture Operators, Local 322
as the exclusive collective-bargaining representative of
the employees in the appropriate bargaining unit set
forth below and, if an understanding is reached, reduce
the agreement to writing and sign it. The appropriate
unit is:
All riggers, spot light operators, loaders, forklift
operators, stage craft and wardrobe employees
employed by Respondent at its Charlotte, North
Carolina facility excluding all other employees,
guards and supervisors as defined in the Act.
CHARLOTTE AMPHITHEATER CORPORA-
TION D/B/A BLOCKBUSTER PAVILION
Jasper C. Brown Jr., Esq., for the General Counsel.
Ralph J. Zatzkis, Esq. and Stephen J. Roppolo, Esq.
(McGlinchey, Stafford, Cellini & Lang), of New Orleans,
Louisiana, for the Respondent.
Joseph Arnold, Esq., of Miami, Florida, for the Respondent.
Joel A. Smith, Esq. (Kahn, Smith & Collins), of Baltimore,
Maryland, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On an
original charge filed in Case 11–CA–14684 by International
Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators, Local 322 (the Union) on October 16,
1991,1 amended on November 29, and an original charge
filed in Case 11–CA–14898 on March 4, 1992, amended on
April 30, 1992, the Regional Director for Region 11 of the
National Labor Relations Board issued an order consolidating
cases and a complaint on April 30, 1992, which alleged that
Charlotte Amphitheater Corporation d/b/a Blockbuster Pavil-
ion (Respondent) had engaged in, and was engaging in, con-
duct which violates Section 8(a)(1) and (3) of the National
Labor Relations Act. Respondent filed timely an answer de-
nying that it had violated the Act as alleged. Thereafter, the
charge in Case 11–CA–14996 was filed on May 11, 1992,
and on June 6, 1992, the Region consolidated that case with
the above-mentioned cases and issued an amended complaint,
which realleged the matter set forth in the earlier complaint
and additionally alleged that Respondent had engaged in, and
131BLOCKBUSTER PAVILION
2 At the outset of the hearing, the General Counsel was permitted
to amend the complaint to: add to par. 8(h) an allegation that Dun-
can unlawfully interrogated employees on May 31, 1992; allege as
par. 8(i) that Jack Panter threatened employees with loss of employ-
ment because they engaged in union activity on July 10, August 12
and 14, 1992; allege as par. 8(j) that Panter orally promulgated a
rule prohibiting employees from engaging in discussion of the Union
on August 12, 1992; withdraw the names of Michael Andrews and
Kenny Love from par. 10 of the complaint; change the date of al-
leged discrimination against Katherine Canady from March 3 to July
16, 1992; change the name of Amanda Mayers in par. 10 of the
complaint to Amanda Ayers.
3 Respondent’s tardy motion to file a reply memorandum, which
is opposed by General Counsel, is denied.
4 Respondent is 100 percent owned by Amphitheater Entertainment
Corporation, which is 50 percent owned by Zev Buffman and 50
percent owned by Blockbuster Amphitheater Corporation. Block-
buster Amphitheater Corporation is a wholly owned subsidiary of
Blockbuster Entertainment Corporation, a New York stock exchange
company. Charging Party requests in its brief that Amphitheater En-
tertainment Corporation be noted as a party herein because it and
Respondent constitute a single employer and/or alter egos. In the ab-
sence of appropriate complaint allegations, I deny the request.
5 At times, the road act or independent contractors will perform
wardrobe and other functions.
was engaging in, conduct which violates Section 8(a)(5) of
the Act. Respondent filed timely answer denying that it had
violated the Act as alleged in the amended complaint.
The case was heard at Kannapolis and Charlotte, North
Carolina locations during the period October 26 to December
3, 1992. All parties appeared and were afforded the oppor-
tunity to participate.2 On the entire record, including careful
consideration of posthearing briefs filed by the parties,3 and
from my observation of the demeanor of the witnesses who
appeared to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation authorized to do busi-
ness in Florida, has a facility in Charlotte, North Carolina,
where it is engaged in the operation of an outdoor amphi-
theater for public entertainment. During the 12-month period
preceding issuance of the original complaint, it derived gross
revenues exceeding $500,000 and it purchased goods valued
in excess of $5000 directly from points located outside the
State of North Carolina. It is admitted, and I find, that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that International Alliance of
Theatrical Stage Employees and Moving Picture Machine
Operators, Local 322 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Charlotte Amphitheater Corporation4 opened a
new outdoor entertainment pavilion in Charlotte, North Caro-
lina, on July 4, 1991. In advertisement, Respondent is billed
as Blockbuster Pavilion. The facility was designed to accom-
modate approximately 20,000 patrons, but its seating capac-
ity is considerably less. Some 22 events were staged at the
facility in 1991, and 29 were staged in 1992. Weather per-
mitting, the season extends from April to November.
When events are staged at Respondent’s pavilion, it ob-
tains and employs the stagehands who unload and load the
trucks, perform the electrical work, carpentry, rigger func-
tions, sound work, prop work, and wardrobe work necessary
to present the event.5 Employees who unload the trucks and
assist in the performance of work which must be performed
before the show begins work what is called the ‘‘in.’’ Those
who operate spotlights, change scenery, or perform other
work during the production do work what is called the
‘‘show.’’ Those who remove equipment from the stage and
reload the trucks after the performance do work what is
called the ‘‘out.’’ Robert (Rusty) Vernon, who was hired as
Respondent’s general manager in December 1991, estimated
the size of the stagehand pool in the Charlotte, North Caro-
lina area to be 250–300. Few of the area stagehands work
continuously for a given employer. Instead, they work at dif-
ferent facilities as shows or events are staged, and stagehands
are needed. In addition to Respondent, some of the facilities
in the Charlotte area which employ stagehands are the Char-
lotte Coliseum, the Charlotte Convention Center, Ovens Au-
ditorium, and Carolina’s Palladium Amphitheater.
Leslie Sprinkle, Local 322’s business agent, credibly testi-
fied that in 1991, Respondent provided most of the summer-
time employment enjoyed by his stagehand members. Re-
spondent’s season began on July 4, 1991, and the record re-
veals it obtained experienced stagehands by employing a
number of stagehands who belonged to Local 322 and made
that known by noting their membership and/or affiliation on
the employment applications which they completed for Re-
spondent. The record further reveals that Respondent hired
stagehands throughout the 1991 season.
At or about the time that Respondent opened the Charlotte
facility, the Union’s International office contacted Respond-
ent’s corporate attorney, Joel Arnold, in an attempt to obtain
voluntary recognition of the Union. Simultaneously, the sig-
natures of employees working Respondent’s events were so-
licited, and on August 28, 1991, the Union filed the petition
in Case 11–RC–5796. When Arnold agreed to meet with
union principals at the facility on October 4, 1991, the peti-
tion was withdrawn as International Official John Petrofessa
advised the local officials that voluntary recognition might be
forthcoming. At some point, Sprinkle prepared a proposal
placed in the record as the General Counsel’s Exhibit 62.
The document proposed hourly rates for stagehands during
1991 and 1992 of $10 to $16.50, with the rate for stewards
varying from $12 to $18. Overtime after 8 hours and a 5-
percent wage increase in 1993 were proposed. During 1991
and 1992, the hourly rate paid by Respondent for stagehands
varied from $8 to $12.50.
On October 4, 1991, Respondent and union principals met
at the Charlotte facility. Present for the Union were: John
Petrofessa; Tom Weeks, an international representative; Tom
Howard, the Local’s president; and for Respondent were:
Joel Arnold and Alan Flexer, chief operating officers. Re-
spondent’s part-owner, Buffman, was in the facility but
chose not to attend the meeting.
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arnold’s description of the meeting was brief. He claimed
the union people indicated during the meeting that they
would like to get work at the facility like they got it at the
Charlotte Coliseum—without a contract. He claimed Re-
spondent agreed to give them work whenever it fit into their
plans. Arnold denied that the subject of recognition came up
during the meeting. Union President Howard gave the most
complete and most credible account of the meeting. He testi-
fied that, after some preliminary discussion, Arnold asked
Sprinkle if he wanted a signed contract, and that when Sprin-
kle said yes, Arnold said there was no way Blockbuster
would ever sign a collective-bargaining agreement; they
would not be the first shed in the country to sign one. How-
ard claims Arnold then asked Sprinkle if he wanted a rela-
tionship in which Blockbuster called the Union for hands and
the Union sent hands out there. He recalled that Sprinkle said
yes. According to Howard, Flexer then made some remarks
about alleged unfair labor practices, and he asked whether
the Union had a majority and had the cards there. The union
representatives indicated they represented a majority and the
cards had been given to the Board. Howard recalled that
Sprinkle gave Flexer a copy of the basic rate sheet Petrofessa
had previously given to Arnold, and Flexer said they would
look it over and get back to him.
Respondent’s 1991 season ended with the Tom Petty show
on October 15, 1991. The Union picketed the show, and
Sprinkle indicated it picketed Respondent continuously dur-
ing the 1992 season.
On February 26 and March 3, 1992, Respondent met with
individuals who were to comprise its list of stagehands who
were to work for it during the 1992 season.
The complaint alleges, and the General Counsel contends,
that subsequent to the time the Union commenced its organi-
zation campaign at Respondent in August 1991, Respondent,
through the conduct of its crew chiefs, Sean McKinney and
Jack Panter, and its production manager, Gerry Duncan, vio-
lated Section 8(a)(1) of the Act in numerous respects. Addi-
tionally, the complaint alleges that employees Michael Kelly
and James Shumaker were discriminatorily denied employ-
ment during the 1991 season, and that Respondent
discriminatorily refused to hire the employees named in para-
graph 10 of the complaint during the 1992 season. Finally,
the complaint alleges that the Union has represented a major-
ity of Respondent’s employees since August 28, 1991, and
that by refusing to recognize it as the bargaining agent of its
employees, Respondent violated Section 8(a)(5) of the Act.
Additionally, the General Counsel contends the unfair labor
practices committed by Respondent were sufficiently serious
as to warrant the issuance of a bargaining order. The indi-
vidual allegations are treated below.
B. The Alleged 8(a)(1) Conduct
1. The status of crew chiefs
Most of the alleged 8(a)(1) conduct described in the com-
plaint is attributed to Respondent’s 1991 crew chief, Sean
McKinney, and its 1992 crew chief, Jack Panter. Although
Respondent originally admitted in its answers to the com-
plaints that McKinney and Panter were supervisors within
the meaning of Section 2(11) of the Act and were agents of
Respondent within the meaning of the Act, it amended its
answer at the conclusion of the General Counsel’s case to
deny that McKinney and Panter were supervisors. Similarly,
it denied that they were authorized agents of Respondent.
As indicated, supra, the size of the stagehand pool in the
Charlotte area is 250–300 individuals. During the 1991 sea-
son, approximately 97 members of the pool filed employ-
ment applications with Respondent and they were placed on
its call list, which was placed in the record as Joint Exhibit
1(b). During the 1992 season, the stagehand call list con-
tained some 115 names. Respondent’s general manager,
Vernon, indicated during his testimony that approximately 28
stagehands are usually needed for the average show. He fur-
ther indicated that the actual number needed is specified by
the contract which Respondent executes with the performing
group. More precisely, the group’s needs are normally set
forth in a technical rider to the contract.
The record fails to reveal that crew chiefs participate in
the formulation of contracts, including technical riders, which
are negotiated by Respondent and any given performing
group. Vernon claimed during his testimony that the crew
chiefs take no part in deciding which employees are placed
on the call list. Crew Chief Panter’s testimony, coupled with
that of employee Susanne McCown, indicates otherwise.
Thus, McCown credibly testified that in early 1992 Panter
urged her to complete an employment application so he
could hire her as a stagehand during the 1992 season. She
testified that on March 18, 1992, she, accompanied by one
Thomas Lynn, visited Panter at his home and, while there,
she and Lynn both filled out employment applications and
other forms, including W–4 Employee Withholding Allow-
ance Certificates. (See C.P. Exhs. 10, 11, 37, 38, 39, 41, 42,
and 43.) Panter claimed during his testimony that McCown
and Lynn actually visited his home at some unknown time
in February 1992 rather than on March 18, 1992, and he fur-
ther claimed he handed in McCown and Lynn’s paperwork
at a meeting held at the Hilton Hotel on February 26, 1992,
together with his own W–4 form and his NC–4 form. His
claim is belied by several factors. First, he admitted he ini-
tialed Lynn’s application at the top immediately above the
date ‘‘03–18–92’’; that he wrote the words ‘‘stagehand’’ and
‘‘loader’’ on the document and he admitted that the dates on
the documents were not altered after being placed on them.
Next, during cross-examination, Panter’s W–4 and NC–4
forms, which were allegedly turned over to Respondent on
February 26, 1992, were placed in evidence and they were
dated March 4, 1992. McCown and Lynn were both placed
on the call list for 1992, and McCown testified, without con-
tradiction, that she worked frequently during the 1992 season
and that Lynn also worked. In sum, the record clearly reveals
that Panter caused McCown and Lynn’s names to be placed
on the 1992 call list, and his actions led to the employment
of those individuals in 1992.
Through the testimony of Panter, Duncan, and Vernon,
Respondent sought to establish that, although the crew chief
selected the employees who would be called to fill Respond-
ent’s need for stagehands at any given time, the crew chief
exercised little discretion or independent judgment when dis-
patching or filling such quotas. In this vein, they claimed that
the skill of the various individuals and their availability de-
termined whether they received a call to work a show. Panter
indicated during his testimony, however, that he favored cer-
tain employees when deciding who he would call for work.
Thus, he admitted that he called employees John Taylor, Ann
133BLOCKBUSTER PAVILION
Taylor, and Michael Andrews for virtually every show be-
cause they were skilled and ‘‘they needed work.’’ Similarly,
he testified that Fowler informed him he would only work
if he was given assignments longer than the 3-hour min-
imum, and he accommodated Fowler by scheduling him to
work with both the ‘‘in’’ and the ‘‘out’’ so he would work
longer than 3 hours. Clearly, Panter, while in the crew chief
position, had and exercised complete discretion when calling
persons from the call list to fill the stagehand quota for any
given production. Patently, when performing the so-called
dispatching function, he exercised marked independent judg-
ment.
The record reveals that when those employees who were
chosen by the crew chief to work a given function arrived
at the facility, the crew chief noted their time of arrival.
Vernon, Duncan, and Panter all claimed during their testi-
mony that when stagehands reported for work, the crew chief
would merely tell them which road person they would be
working for, and that persons with the road group or Duncan
would provide all of their immediate supervision while they
were at the facility. In point of fact, the record reveals that
the crew chief actually supervises stagehands to a certain ex-
tent, he is responsible for keeping accurate records of the
time they work, and, to a certain extent, the crew chief deter-
mines how long employees will work.
With respect to the crew chief’s supervision of the work
of stagehands, employees Katherine Canady and Susanne
McCown described an incident which occurred on July 10,
1992. On that date, the two employees were assigned to per-
form work on stage beneath two riggers who were in the
process of lowering equipment that was located above the
stage. Canady testified that while a motor was being lowered,
she and McCown stepped away from their work because of
the danger posed by the overhead work. When Panter ob-
served the two stagehands cease work, he approached them
and told them to get to work. McCown walked away and
Canady explained to Panter that she had temporarily ceased
work because she did not feel it was safe to work under the
riggers at that time. Canady testified Panter yelled at her
when she turned and walked away. Later in the day, Canady
claims Panter called her off to the side, shook his finger in
her face, and told her he was aware she was a union mem-
ber; that he would determine what was safe and unsafe for
her; that he was her boss and he could fire her at any point.
Panter, as well as numerous employee witnesses, indicated
during their testimony that the crew chief maintained the
records which revealed the time worked by each stagehand
during any given production or event. While Vernon and
Duncan claimed that road crew personnel decided when a
stagehand’s work was completed, the record reveals, and
Panter admitted, that after the stagehands completed their
production related work, the crew chief, particularly during
McKinney’s reign, required them to remain at the facility for
one-half hour or so, during which time the crew chief
critiqued their performance and discussed safety matters with
them. Apparently, what the crew chiefs covered during such
meetings was left to their complete discretion.
McKinney was not called as a witness by Respondent.
When the personnel files of the stagehands who had worked
during the 1991 season were produced, Charging Party’s
counsel extracted performance evaluations which were placed
in the record as Charging Party’s Exhibits 20–35 in evidence.
The parties stipulated such documents were performance
evaluations for stagehands who worked during the 1991 sea-
son. Duncan, who supposedly provided immediate super-
vision for stagehands, testified the performance evaluations
were not prepared by him; that the writing looked like
McKinney’s. In the absence of evidence to the contrary, I
find the described performance evaluations were prepared by
McKinney.
In sum, the record reveals that Respondent’s crew chiefs,
acting entirely independently, decide which stagehands on
Respondent’s call lists will work events. Moreover, the
record reveals that crew chiefs participate meaningfully in
employee recruitment; that they are solely responsible for
maintaining time records; that they discipline employees; and
that, at least until charges were filed here, they prepared em-
ployee evaluations which were made a part of the employ-
ees’ personnel files. I find that crew chiefs exercise consider-
able independent judgment in the performance of their duties
and that they are, as alleged, supervisors within the meaning
of Section 2(11) of the Act.
2. Unlawful conduct attributed to Sean McKinney
Paragraph 8(a) of the complaint alleges that on or about
September 12, 1991, McKinney informed an employee he
had not been assigned work opportunities because of his
union activities. The General Counsel sought to prove the al-
legation through the testimony of employee Michael Kelly.
Kelly testified that he and some 10 or so employees
worked the first show at Respondent on July 4, 1991, and
that after the show McKinney met with them and told them
they had done a good job and that he would consider them
as a core group that would work every show. He indicated
that he was thereafter called to work the next 10 shows as
were many in the so-called core group. Kelly testified Re-
spondent ceased to call him to work shows after August 16,
1991, and that when he went to pick up his paycheck for
August work on September 12, 1991, he discussed the matter
with McKinney by asking why he was not getting a call any
more. He recalled McKinney told him he tried to do the core
group thing but something did not work out and Gerry Dun-
can was making some of the calls now; and then he said,
‘‘But just between you and me it might have something to
do with that logo you’re wearing on your tee-shirt.’’ Kelly
indicated he was wearing a T-shirt with a union logo on it
at the time.
McKinney did not testify, so Kelly’s testimony stands
unrefuted. Accordingly, I find, as alleged, that by telling an
employee he had been denied work opportunities because he
engaged in union activities, Respondent violated Section
8(a)(1) of the Act.
Paragraphs 8(b) through 8(e) of the complaint allege that
during the course of an employee meeting held on August
24, 1991, McKinney:
Threatened employees with discharge if they informed
the Union of statements made at an employee meeting;
threatened employees that if they joined the Union they
would not receive work because of the Union; threat-
ened employees that Respondent’s owners would de-
stroy the property before they would allow a union to
organize its employees; threatened employees that any
employee who signed a union authorization card would
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be terminated; and threatened employees that all
stagehands employed by Respondent who signed au-
thorization cards would be terminated and replaced.
The General Counsel sought to prove the allegations through
testimony given by employees James Holman, Michael
Neely, John Broadus, David Stevens, and James Shumaker.
Collectively, their unrefuted testimony reveals that at the
conclusion of the ‘‘out’’ on August 24, 1991, McKinney re-
leased all the stagehands he knew to be affiliated with the
Union, and he told the remaining 20–24 stagehands he want-
ed to meet with them in the breakroom. He started his meet-
ing by observing the union people were gone and by stating
that, if any of those attending the meeting repeated what was
said to the Union, he would know where it came from and
he would fire all of them. McKinney then told the employees
it would cost them $600 to $700 to join the Union; that they
would be tested and many would fail; and that the Union
might strike and starve them to death. He told them that
Blockbuster would burn the building before they would let
the Union get in, and he said that if all 82 stagehands filled
in cards, Blockbuster would fire them all and hire 82 new
stagehands. At some point during the meeting, McKinney or
Panter stated that the Union referred by seniority and new
members would get little work.
As indicated, supra, McKinney did not appear to give tes-
timony during the hearing. While Panter appeared and indi-
cated McKinney frequently met with stagehands for approxi-
mately 30 minutes at the conclusion of the shows, he did not
seek to describe what occurred on August 24, 1991. It is
clear, and I find, that McKinney threatened those employees
attending the meeting with discharge if they engaged in
union activity, and he threatened that Respondent would burn
its building before it allowed the Union to represent its em-
ployees. By engaging in such conduct, through the actions of
McKinney, Respondent violated Section 8(a)(1) of the Act as
alleged.
3. Unlawful conduct attributed to Gerry Duncan
Paragraph 8(g) of the complaint alleges that on or about
September 12, 1991, Gerry Duncan threatened an employee
with loss of work assignment if he joined the Union. The
General Counsel sought to prove the allegation through the
testimony given by employee James Shumaker.
Shumaker testified that on September 12, 1991, McKinney
told him Duncan wanted to discuss his ‘‘union stance’’ with
him backstage. He indicated he found Duncan backstage on
the loading dock and the following conversation ensued:
Mr. Duncan stated that if I went with my stance on
the union card, we were going to be working approxi-
mately 70 shows next season, whereas I had worked al-
most every show the ‘91 season at Blockbuster. That I
would be low priority on the calls if a union call was
in effect. I wouldn’t work nearly as many hours. I’d ba-
sically lose money because of having a union stance.
I stated that I was glad to have the authorization
card. I just wanted to finish my season. I didn’t know
whether a vote was going to take place, how any of this
was going to happen. I didn’t care to discuss it further.
I just wanted to finish my obligated season at Block-
buster. I said that I hoped that he would rehire me for
next year.
When he was asked if he recalled speaking with an em-
ployee about the Union on September 12, 1991, Duncan tes-
tified he recalled having such a conversation but could not
recall who it was with. His recollection of the incident was
as follows (Tr. 1080):
I recall having a conversation, I’m not sure who it
was with. I recall having a conversation and the em-
ployee asked me did I know anything about the Union.
And I said the only thing I know about them is that
they work on a seniority system and new people get
placed on the list and that they take from the top of the
list, and the people on the bottom may not get called
at all. Strictly on a seniority system. That’s all I said
to them.
Duncan testified he had no recollection of any conversation
with Shumaker, and he denied he told any employee he
would not work at Blockbuster if he joined the Union.
Noting that McKinney was not produced as a witness by
Respondent, employee Shumaker’s claim that the crew chief
told him that Duncan wished to discuss his union stance with
him is unrefuted. I credit Shumaker and do not credit Dun-
can’s claim that he could not recall talking with Shumaker
and his inference that Shumaker initiated a discussion with
him by asking if he knew anything about the Union. Never-
theless, it is apparent that the impact of Duncan’s September
12 remarks to Shumaker was merely that if employees were
referred to work at Respondent by the Union in 1992, new
union members might not get as much work as they received
in 1991 because the Union referred by seniority. Absent a
showing that Duncan knowingly misrepresented the manner
in which the Union refers members to employment, I find
that the General Counsel has failed to prove that Respondent,
through Duncan’s September 12, 1991 comments, violated
Section 8(a)(1) of the Act as alleged.
Paragraph 8(h) of the complaint alleges that Duncan inter-
rogated employees concerning their union activities and con-
cerning the union activities of others on or about March 3
and May 31, 1992. The General Counsel sought to prove the
allegation through testimony given by employees Janice
Lorenz and Katherine Canady.
Lorenz testified that she attended a meeting at Blockbuster
on March 3, 1992, to update her 1991 employment informa-
tion. As she was leaving the facility, she claims that Duncan
pulled her aside and asked if she was affiliated with the
IATSE. When she replied she had worked with them for the
past 11 years, she recalled Duncan asked, ‘‘Well, didn’t you
tell me last year that you were not a card holder?’’ Lorenz
testified that she said ‘‘yes,’’ and Duncan then asked, ‘‘How
about those other girls in the cafeteria?’’ The employee
asked ‘‘Who?’’ and Duncan replied, ‘‘The one in black.’’
Lorenz indicated Duncan was referring to Ann Taylor and
that she informed him, ‘‘Yes, she’s the Financial Secretary
for the Union.’’ She recalled Duncan then said, ‘‘She a card
holder, isn’t she,’’ and that the conversation ended when she
said, ‘‘Yes, she is.’’
Canady, Lorenz’ daughter, indicated during her testimony
that, while working at Respondent’s facility on May 31,
1992, she wore her union identification card on a chain
135BLOCKBUSTER PAVILION
around her neck. She claimed that Panter approached her,
asked if he could look at her card, and that he fingered the
card. She testified Panter then walked over to Duncan who
was on the loading dock, and that the two men then ap-
proached her. Canady testified Duncan asked her if she was
a union member, and she replied she was. She claims he then
asked if her two brothers and her mother were members of
the Union. She replied her brothers, who were employed by
Respondent, were not members, but her mother was.
Duncan acknowledged during his testimony that he ob-
served employees Lorenz and Taylor at the March 3, 1992
meeting. He did not seek to refute Lorenz’ description of the
conversation they had that day. Similarly, Duncan did not
seek to refute employee Canady’s version of the May 31,
1992 incident. With respect to Canady, he simply denied that
he ever observed her wearing a union laminate. When he ap-
peared as a witness, Panter denied that he ever fingered
Canady’s union identification laminate, and he denied that he
or Duncan questioned Canady about her union membership
or that of her brothers and mother. Panter impressed me as
being the most insincere witness who attended the hearing.
I credit Lorenz and Canady.
While the Board held in Rossmore House, 269 NLRB
1176 (1984), that an employer does not necessarily violate
Section 8(a)(1) of the Act by questioning open and active
union supporters about their union sentiments, it indicated a
violation will be found if ‘‘either the words themselves or
the context in which they are used . . . suggest an element
of coercion or interference.’’
Here, the record clearly reveals that the March 3, 1992
meeting attended by employees Lorenz and Taylor was con-
ducted to determine which employees would be placed on
Respondent’s call list for 1992. Lorenz’ description of her
conversation with Duncan reveals that Duncan did not know
the employee to be an open and active supporter of the
Union and, in any event, by asking the union sentiments of
Taylor, Duncan placed Lorenz in a position in which she
could logically fear that the inquiries were being undertaken
pursuant to a plan to deny employment to her and Taylor.
I find that by interrogating Lorenz about her union member-
ship and the union sentiments of Taylor, Duncan engaged in
conduct which violates Section 8(a)(1) of the Act. See Kona
60 Minute Photo, 277 NLRB 867 (1985).
Similarly, the context in which the Canady interrogation
was conducted causes me to conclude that Duncan’s actions
reasonably tended to coerce Canady in the exercise of her
right to join and support the Union. Thus, it appears that
Canady was not known by Duncan to be an open supporter
of the Union until Panter approached Duncan immediately
after he had fingered the employee’s union card. Immediately
thereafter, Duncan engaged the employee in a conversation
which was other than a casual conversation seeking general
information. Indeed, he asked her to reveal her union senti-
ments and the sentiments of her brothers and her mother. In
the circumstances which existed at the time, including the
fact that many, if not most, of the union members who
worked at Respondent during 1991 were not utilized by it in
1992, Canady could have reasonably feared Duncan was
making his inquiries with an object of initiating action
against her, her brothers, and her mother. I find that through
Duncan’s interrogation of Canady, Respondent violated Sec-
tion 8(a)(1) of the Act as alleged.
4. Unlawful conduct attributed to Jack Panter
Paragraph 8(i) of the complaint alleges that on July 10 and
August 12 and 14, 1992, Crew Chief Panter threatened em-
ployees with loss of employment because they engaged in
union activities. Paragraph 8(j) of the complaint alleges that
on August 12, 1992, Respondent orally promulgated a rule
prohibiting employees from engaging in discussions about
the Union. The allegations will be treated together as they
involve actions taken by Panter against employee Katherine
Canady.
As noted, above, on May 31, 1992, Panter fingered
Canady’s union identification card, asking if she was a union
member. Subsequently, Duncan approached her and asked
whether she, her brothers, and her mother were members of
the Union.
Subsequently on July 10, 1992, while working the Indigo
Girls concert, Canady was assigned to perform certain work
on the stage of the facility. Riggers were working overhead
at the time. At a point when the riggers were dropping a
point with the aid of ropes and a motor, Canady and her
work companion, Suzanne McCown, ceased work. Canady
explained they did so because the riggers had previously
dropped items and she did not feel safe working under them
while they were dropping a point. Panter approached the em-
ployees and instructed them to resume work. Both employees
walked off while Panter was yelling. Later in the evening,
Panter took Canady aside, pointed his finger in her face, told
her he was aware she was a union member; that he would
determine what was safe and unsafe for her; that he was her
boss and could fire her at any time; that she was to perform
any job any place he wanted her to; and that they were wast-
ing their time at the picket line because no one noticed and
no one cared.
Canady testified that after the July 10 incident, she worked
the Iron Maiden show on July 12 as she had been called for
both the July 10 and 12 shows at the same time.
Although there were three shows at Respondent’s facility
between July 12 and August 12, 1992, Canady was not
called to work any of the shows. She testified she called
Panter on August 12 and asked why she had not been receiv-
ing any calls. She claims he said he did not like her union
attitude; he didn’t appreciate her speaking of the Union. Con-
tinuing, Canady testified Panter told her he was the one who
made the calls and determined who did and did not get them,
and if she did not quit promoting the Union to the employ-
ees, she would not receive calls.
Canady was called to work the Elton John show on Au-
gust 14, 1992. During the show, she claims Panter took her
aside to inform her that Blockbuster was going to buy the
old Coliseum; that the Union would not be in that venue; and
that she would not have a job. Canady testified that she
worked the Lollapalooza Tour on August 25, 1992, and re-
ceived no calls after that during Respondent’s 1992 season.
Employee McCown testified that she, like Canady, refused
to work while riggers were overhead on July 10, 1992. She
testified that about 3 weeks after the incident, Panter called
her and told her she should chose her friends more carefully,
and that during the discussion he told her his reasons for dis-
liking unions.
During his testimony, Panter acknowledged that he as-
signed Canady and McCown to perform a lighting task on
the stage of the facility on July 10, 1992. He claimed that
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when he observed that Canady was not performing the work,
he told her she had to get back on her job and do what he
had asked her to do. He denied that riggers were performing
any work over Canady and McCown at the time. While Pant-
er admitted he and Canady subsequently discussed the inci-
dent on the loading dock, he denied that he pointed his fin-
ger at her and claimed he merely apologized when she ac-
cused him of being rude. Panter did not seek to fully de-
scribe what was said during the loading dock incident.
Panter did not seek to controvert Canady’s description of
their August 12, 1992 telephone conversation. Instead, when
asked what statements he made to her concerning a rule that
she should not talk at work, he testified that he separated
Canady and her brother A.G. when they were fussing at each
other and told them to stay away from each other.
With respect to the conversation concerning Respondent’s
possible purchase of the old Charlotte Auditorium, Panter
testified he made no statements about that matter directly to
Canady, but, instead, simply participated in general conversa-
tion about the matter with the crew on the dock. He testified
the Union was not mentioned in relation to the old Charlotte
Auditorium.
Employees Canady and McCown testified in a straight-
forward manner, and both appeared to be attempting to com-
pletely describe what occurred during given incidents. Panter,
on the other hand, testified in fragmentary fashion and he
failed to admit or deny many of the remarks attributed to
him by Canady. Moreover, I gained the distinct impression
that he willingly tailored his testimony to meet the needs of
Respondent’s defense. I credit Canady and McCown where
their testimony conflicts with that of Panter.
In sum, the testimony which I credit reveals that on July
10, 1992, while referring to Canady’s union membership and
the futility of picketing, Panter threatened that he could fire
the employee at any time; and that on August 12, 1992, he
told the employee that she had not received calls because of
her union attitude, and, if she did not quit promoting the
Union, she would not receive calls. Through Panter’s de-
scribed conduct, I find that Respondent violated Section
8(a)(1) of the Act as alleged on July 10 and August 12,
1992. Accepting Canady’s version of the conversation in-
volving the old Charlotte Auditorium and/or Coliseum, I find
that testimony to be vague and insufficient to establish a vio-
lation of Section 8(a)(1) of the Act. Similarly, accepting
Canady’s description of Panter’s admonition that she should
refrain from talking about the Union if she wanted to receive
calls, I find such testimony fails to prove that Respondent
promulgated a rule which prohibited employees from talking
about the Union or about August 12, 1992.
C. The Alleged 8(a)(3) Violations
1. The complaint alleges that Respondent failed to assign
employees Mike Kelly and James M. Shumaker work on
stated dates in 1991 because they engaged in union or other
protected concerted activity. Additionally, it alleges, and the
General Counsel contends, that Katherine Canady was denied
work calls subsequent to July 16, 1992.
The facts relied on by the General Counsel to prove that
Kelly was discriminatorily denied employment by Respond-
ent from August 16, 1991, through the end of the 1991 sea-
son are set forth, supra. Briefly recapitulated, those facts,
which were not rebutted, reveal: that Kelly was promised
continuous employment as part of a core group at the outset
of the 1991 season; that from August 16, 1991, forward, he
received no calls; that he encountered McKinney on Sep-
tember 12, 1991, and inquired why he had received no calls;
that McKinney told him Duncan was making some of the
calls, ‘‘But just between you and me it might have some-
thing to do with that logo you are wearing on your tee-
shirt’’; that Kelly had on his union T-shirt at the time; and
that Kelly thereafter telephoned McKinney to advise him he
remained available for work, but he was not called for work
during the remainder of the 1991 season.
While the above-related facts, standing alone, might war-
rant an inference that Kelly was denied employment after
August 16 because he had made his union sentiments known,
other record evidence convinces me such an inference is not
warranted. Thus, employee James Holman testified that, dur-
ing one of his meetings with the stagehands, McKinney in-
formed those present that Kelly had called to the Labor
Board to ask about Blockbuster not paying overtime after 40
hours and he said, ‘‘If you do that you’re a troublemaker and
that that guy was out of here.’’ In addition to the fact that
Holman’s testimony strongly suggests that Kelly was not
called after August 16 because he either voiced or threatened
to voice a complaint over Respondent’s failure to pay him
time and one-half for overtime hours, I note that the record
reveals that numerous employees revealed their union affili-
ation during the 1991 season by noting their affiliation on
their employment applications and by wearing T-shirts with
union logos to work. With exception of Kelly and employee
Shumaker, there is no claim that any of those employees suf-
fered discriminatory treatment after revealing their union sen-
timents. Indeed, the record reveals that at some point during
the 1991 season, McKinney obtained his riggers through an
arrangement with the Union.
In sum, I am convinced that Respondent ceased to call
Kelly for shows after August 16, 1991, because he contested
their failure to pay him time and one-half for hours worked
over 40 hours. I find that the General Counsel has failed to
prove that the employees’ participation in union and/or pro-
tected concerted activities was a motivating factor in Re-
spondent’s decision to refuse him employment.
The record reveals that employee Shumaker signed a
union authorization card on August 10, 1991 (G.C. Exh. 22).
He testified without contradiction that on September 8, 1991,
McKinney indicated in conversation with him and Charlie
Fisher that he could not believe how many people were
going to side with the union stand on authorization cards;
that a lot of people were going to lose work the following
year because of it. He testified he told McKinney at that
point, ‘‘Look, I’m one of those people that signed an author-
ization card, you probably don’t want to be talking to me
about this.’’ Shumaker testified that although he had been
called to work every show at Respondent’s facility up to the
time of the above conversation, he was not called to work
a show held on September 12, 1991. On that date, he at-
tended the Foreigner Show, and, at McKinney’s urging, dis-
cussed his ‘‘union stance’’ with Duncan, as indicated, supra.
Shumaker testified that after missing the Foreigner Show on
September 12, 1991, he received calls to work the remaining
shows during the 1991 season. He did not work the final
show, the Tom Petty show on October 15, 1991, because he
honored the Union’s picket line.
137BLOCKBUSTER PAVILION
6 See G.C. Exhs. 1–28, 30–33, 35–39, 41, 43–46, 48, and 50–67.
All the alleged discriminatees except Byron Fleming, P. W. Jenkins,
and Eric Wickstrom signed authorization cards. 7 G.C. Exh. 61.
I find that the facts summarized above warrant an infer-
ence that Shumaker’s participation in union activity was a
‘‘motivating factor’’ in Respondent’s decision to refrain from
calling him to work the Foreigner Show on September 12,
1991. Respondent offered no evidence to prove that it would
have denied Shumaker work on September 12, 1991, in the
absence of his participation in union activity. Accordingly, I
find, as alleged, that by failing to call James M. Shumaker
to work the Foreigner Show on September 12, 1991, Re-
spondent violated Section 8(a)(3) of the Act as alleged.
The evidence offered by the General Counsel to prove that
employee Katherine Canady was refused work after July 16,
1992, is set forth, supra. Briefly recapitulated, the record re-
veals that McKinney told the employee on July 10 that he
was aware she was a union member, and he could fire her
at any time if she failed to do what he told her to do; and
that on August 12, when she called McKinney to ask why
she had not received further calls after July 12, 1992, he told
her: he did not like her union attitude; he did not appreciate
her speaking of the Union; he made the calls and determined
who did and did not get them; and if she did not quit pro-
moting the Union to the employees, she would not receive
calls. Finally, Canady testified that subsequent to July 10,
1992, the only work calls she received were for July 12 and
August 14 and 25, 1992. Interestingly, her normal working
companion, McCown, who was admonished by Panter to
choose her friends more carefully about the end of July, tes-
tified she worked regularly through the 1992 season.
The evidence outlined above causes me to conclude that
the General Counsel has adduced sufficient evidence to war-
rant an inference that Canady’s support of the Union was a
motivating factor in Respondent’s decision to use her serv-
ices sparingly after July 10, 1992.
As noted, supra, Crew Chief Panter denied that he made
any remarks to Canady about her union sentiments or activi-
ties on July 10 and August 12, 1992. I have not credited
those denials. While he indicated during his testimony that
he felt Canady had been insubordinate on July 10, 1992, he
claimed he had received complaints that she was not pulling
her weight, and he had observed her talking for extended pe-
riods, he failed to affirmatively indicate why he called her
only two times after July 10, 1992, and why he failed to call
her at all after August 25, 1992.
In sum, I find that Respondent failed to prove that it
would have limited Canady’s work opportunities after July
16, 1992, in the absence of her participation in protected
conduct.
2. The complaint alleges that Respondent refused to hire
the employees named in paragraph 10 of the complaint dur-
ing 1992 because they engaged in union or other protected
activities while employed by it in 1991.
1. The General Counsel’s case
The record reveals that the Union commenced an organi-
zational campaign at Respondent’s facility in early August
1991. By the end of August 1991, approximately 56 employ-
ees had signed authorization cards.6 Many of the employees
who signed authorization cards were already members of the
Union, and solicitation was conducted openly, mainly in Re-
spondent’s parking lot before and after work. The Union
conducted an open rather than a secretive campaign, and
union members and/or adherents, including Amanda Ayers,
Bruce Grier, Ben Howe, Larry Carter, P. W. Jenkins, and
Michael Kelly, testified they regularly wore T-shirts which
were decorated with the Union’s logo to work. A number of
employees indicated their union affiliation on the employ-
ment applications filed with Respondent.
As indicated, supra, Respondent’s crew chief, McKinney,
excused those stagehands he knew to be union members on
August 24, 1991, and he thereafter sought to persuade the
stagehands who were not known to be union members or
supporters to refrain from joining or supporting the Union.
During the meeting, he committed numerous violations of the
Act described, supra. As indicated, supra, the Union filed its
first petition for an election with Region 11 on August 28,
1991.7 Thereafter, at a meeting described, supra, which was
held on October 4, 1991, Respondent was informed that the
Union represented a majority of Respondent’s stagehands. As
noted, supra, Respondent Attorney Arnold told the union rep-
resentatives there was no way Blockbuster would ever sign
a collective-bargaining agreement; they would not be the first
shed in the country to sign one.
While the record reveals that the relationship between Re-
spondent and the Union was somewhat amicable until the
October 4 meeting was held, the friendliness disappeared
thereafter. Thus, on October 15, the Union picketed the facil-
ity during the Tom Petty Show with signs which stated:
‘‘Charlotte Amphitheater does business as Blockbuster Am-
phitheater does not have a contract with or employ members
of IATSE Local 322.’’ The following day, October 16, the
Union refiled its representation petition with Region 11. On
the same date, it filed the original charge in Case 11–CA–
14684 alleging that Respondent had discriminatorily refused
to hire 18 named union members since October 4, 1991.
In February 1992, Respondent spread the news by word of
mouth that it was to hold a meeting to hire stagehands for
the 1992 season on February 26, 1992. The meeting was held
at the University Hilton in Charlotte, North Carolina, and ap-
proximately 135 applicants attended. Respondent’s general
manager, Robert (Rusty) Vernon, who had been hired in De-
cember 1991 after the close of the 1991 season, testified that
management was represented at the meeting by: Gerry Dun-
can, production manager; Patrick Leahey, assistant manager;
Truman Nail, comptroller; Pat Harmeson, office adminis-
trator, and himself; Vernon described his opening remarks at
the meeting as follows (Tr. 893):
I opened the meeting by defining the meeting as a
meeting for new employees. I asked if there were any
previous employees present. Some indicated that they
were. I told them that this was a meeting for new em-
ployees, that they didn’t need to fill out all the paper-
work that would be duplicative, that they should leave,
they didn’t need to do that, however, they were wel-
come to stay, and that was it.
Oh, I did tell them that there would be a subsequent
meeting with a notice to them where they would come
in and reapply.
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Among those attending were alleged discriminatees Burchett,
Larry Carter, Holman, Howe, Neely, Shumaker, Stevens, Grier, Dun-
can, Hoffman, Broadus, and Fowler.
9 Fowler was offered work but testified he refused because of dis-
agreement over pay.
10 See C.P. Exh. 12. Carter completed the top portion of the card,
indicating his new address and his phone number. He was not of-
fered employment during 1992.
11 While Duncan was positive the March 3 date had been agreed
on before he went on vacation, when Vernon was asked during
cross-examination if he had announced the March 3 meeting date to
those present at the February 26 meeting, he replied, ‘‘No, sir, I
didn’t. In fact, it may have been that that decision was made at that
time.’’ At various points Vernon gave misleading testimony such as
that described.
12 Employee Paul Jenkins testified he did not receive the card
mailed to him until March 4, 1992.
13 Duncan’s claim that family obligations prevented him from
meeting with 1991 employees after 11 a.m. on March 3 is not con-
vincing. I credit Bergen’s testimony fully and conclude that Duncan
falsely claimed he did not attend the U–2 event on March 3, 1992.
In my view, both he and Vernon tailored their testimony regarding
the March 3 meeting to fit the needs of Respondent’s defense.
The record reveals that some 20–25 former employees were
in attendance at the meeting.8 Although the 1991 employees
were invited to leave, the record reveals that most, if not all,
remained while employment applications were distributed to
persons seeking employment for the first time. A limited
number of former employees, including John Fowler, Mike
Andrews, Kenny Love, Bill Ellwood, and Darrin Gilmore,
obtained and completed new employment applications during
the meeting. Vernon credibly testified that those individuals
either worked or were offered employment during the 1992
seasons.9 Most of the previous year’s stagehands followed
Vernon’s instructions and refrained from completing what he
had described as duplicative paperwork. One employee,
Larry Carter, requested an application form so he could indi-
cate his address had changed since he had worked for Re-
spondent in 1991.10 In addition to completing employment
applications during the February 26 meeting, those attending
were given information concerning Respondent’s operation
and the jobs they might be performing. Significantly, al-
though Vernon and Duncan had decided, before Duncan
went on a brief vacation from February 19 to February 25,
that Duncan would hold a reapplication/reprocessing meeting
with 1991 employees on March 3, 1992, that fact was not
announced at the February 26 meeting.11
By postcards mailed on Friday, February 28, 1992, Re-
spondent informed former 1991 stagehands that their re-
application session would be held on March 3, 1992.12 A
sample card was placed in evidence as the General Counsel’s
Exhibit 60. It states the following:
BLOCKBUSTER PAVILION
Tuesday, March 3, 1992
9:30 am.–11:00 a.m.
Administration Offices
Reorientation and reprocessing for
previously employed stagehands
Reapplications accepted at the above times only.
Employment list for 1992 will be closed after
11:00 a.m.
We look forward to seeing you again!
The record reveals that two major entertainment events
were scheduled to occur in Charlotte, North Carolina, on
March 3, 1992. The first was a rock concert by a group
known as U–2. The event was to be held at the Charlotte
Coliseum. The second was a trade show which was to be
held at the Charlotte Convention Center. Union Business
Agent Sprinkle testified the U–2 concert had been widely ad-
vertised for more than a month prior to March 3. Vernon and
Duncan admitted they were aware when they scheduled the
March 3 reapplication meeting for 1991 employees that the
U–2 concert was scheduled for March 3, and that it was a
big show which required many stagehands. Vernon testified
that while he was aware it was to occur, the U–2 concert
was not a matter of concern to him when he scheduled the
reapplication meeting for March 3, 1992.
Sprinkle testified the Union supplied the U–2 group ap-
proximately 60 stagehands, and on the same day, March 3,
he provided the trade show at the Convention Center ap-
proximately 24 stagehands. The General Counsel witnesses
Ayers, Berger, Broadus, Burchett, Laura Carter, Hoffman,
Howe, Jenkins, Kelly, Mariette, Murphy, Neely, Redmond,
Shumaker, Stevens, Taylor, Welch, Larry Carter, Donnell,
Duncan, Fleming, and Holman all testified they were work-
ing at either the U–2 concern (the in) or at the trade show
at the Convention Center during the hours 9:30 to 11 a.m.
on March 3, 1992, and they could not appear at Respond-
ent’s facility to register for employment for that reason. Em-
ployee Grier, who evidenced an interest in 1992 employment
by attending the February 26 meeting, testified he was in At-
lanta, Georgia, on vacation on March 3, 1992, and was pre-
cluded from attending the reapplication meeting for that rea-
son. Alleged discriminatees Bradley, Bogdan, Griffin,
Hunter, McDougald, and Wickstrom did not appear at the
hearing to give testimony.
Employees Bergen, Stevens, and Holman testified they
saw Duncan at the U–2 concert during the afternoon on
March 3. Duncan testified he went to the Charlotte Coliseum
to say hello to some friends who worked on the Van Halen
crew on Friday, February 28, 1992, but that although he
knew some people on the U–2 crew, he did not go to the
Coliseum on March 3. Bergen testified he worked at the
Charlotte Convention Center in downtown Charlotte until 3–
4 p.m. on March 3, and he then went to the Coliseum to
work the U–2 out. He placed Duncan at the U–2 concert in
a spontaneous manner as he was asked by counsel for Charg-
ing Party if he had occasion to speak with Duncan further
after discussing his employment status with him in May
1992. The employee replied, ‘‘The only time I saw him was
at the U2 concert, but that wasn’t even in the summer. That
was in March. I said hi to him and that was it.’’ When coun-
sel for Charging Party pursued the matter, Bergen indicated
he saw Duncan backstage at approximately 6 or 7 p.m.; that
he said hi and asked Duncan ‘‘what’s up’’; and he recalled
Duncan said he was just visiting some friends on the tour.13
The record reveals that those employees who completed
applications at the February 26 and March 3, 1992 meetings,
and employees McCown and Lynn attended an orientation
session at the Respondent on March 30, 1992. Thereafter,
139BLOCKBUSTER PAVILION
14 It is undisputed that Respondent hired stagehands throughout the
season in 1991.
15 When Duncan was asked to explain why the meeting was held
on March 3 from 9:30 to 11 a.m., he became hopelessly confused
and answered:
Traditionally I went to Camden on Mondays, Wednesdays and
Fridays. I told him I was available on Monday morning, because
my wife had me doing some work for her and that particular
week I could not make it to the—down to Camden on Friday,
because again, I had to do something with my children and I
had to go to Camden on Monday, Wednesday and Thursday. So,
Tuesday morning was the only available date to me.
they all received or were offered work at the facility during
the 1992 season.
The record reveals that alleged discriminatees Laura
Carter, Bergen, Welch, Stevens, Neely, Kelly, Shumaker,
Murphy, Burchett, Redmond, and Howe filed employment
applications with Respondent during March, April, and May
1992. Indeed, Laura Carter testified she filed such an appli-
cation as early as March 4, 1992. A number of employees,
including Robert Bergen, Carl Welch, David Stevens, Mi-
chael James Holman, and Michael Murphy, testified after
they filed applications for employment in 1992, they called
Duncan to ascertain their status and he told them they had
been put on a waiting list and/or he would know if they
would be given work after a hearing which was to be held
in June 1992. None of the named employees received work
at Respondent during calendar year 1992.14
Summarized, the record reveals the following. Respondent
hired stagehands throughout the 1991 season, and that it ob-
tained its riggers directly from the Union during a portion of
the season. It reveals the Union commenced an organization
drive in August 1991, and that all the named alleged
discriminatees except Bryon Fleming, P. W. Jenkins, and
Eric Wickstrom signed union authorization cards. Respondent
admittedly was aware its employees were seeking to orga-
nize, and after the Union filed its original petition for an
election, Respondent was advised the Union enjoyed majority
support and desired a contract. Respondent indicated it would
not be the first ‘‘shed’’ in the country to sign a contract. As
found, supra, Respondent, through the actions of its crew
chief, McKinney, exhibited marked antiunion animus by tell-
ing stagehands that those who engaged in union activity
would be fired, and by threatening that Respondent would
burn its facility before it accepted the Union. After terminat-
ing all its employees at the end of the 1991 season, Respond-
ent held a meeting on February 26, 1992, for the purpose of
obtaining employment applications, tax forms, and other in-
formation from individuals who had not worked for it in
1991. Former employees who attended the meeting were told
they should not file new applications because Respondent al-
ready had their applications, and they were told they could
leave. Two days later on Friday, February 28, Respondent
sent postcards to all 1991 employees informing them they
could reapply/reregister for 1992 employment at the facility
between the hours of 9:30 and 11 a.m. on March 3, 1991.
The notifications indicated Respondent’s employment list for
1992 would be closed after 11 a.m on March 3, 1992. The
record reveals a widely advertised rock concert which would
employ a large number of stagehands was scheduled to be
held on March 3, 1992. Many of the alleged discriminatees
claimed they accepted work at either the U–2 concert or at
a trade show which was in progress on March 3 and their
work commitment prevented them from appearing at Re-
spondent to reapply and/or reregister for employment. As
found, supra, Respondent’s production manager continued to
engage in violative conduct during the March 3 meeting as
he unlawfully interrogated employees concerning their union
sentiments and the union sentiments of other employees. Ad-
ditionally, its crew chief denied an employee work because
of her support of the Union. Finally, former Respondent em-
ployees who filed applications for employment after March
3, 1992, were not considered for employment by Respondent
during the 1992 season although Respondent had hired
stagehands throughout the 1991 season.
I find the above-related facts establish, prima facie, that in
1992 Respondent conducted its stagehand hiring procedure in
a fashion which was intended to deprive its former
stagehands of 1992 employment. In my view, the facts set
forth warrant an inference that the union-related activities of
Respondent’s 1991 stagehands was a ‘‘motivating factor’’ in
its decision to attempt to deny them employment with it dur-
ing the 1992 season.
2. Respondent’s defense
Vernon testified that in late February and early March
1992, he and his staff of six were working 14 to 18 hours
a day to accomplish the numerous tasks required by the ap-
proaching 1992 season. He indicated it was in that context
that a meeting was scheduled for February 26 at the Hilton
Hotel in Charlotte for individuals who desired to work as
stagehands for Respondent in 1992, but had not worked for
it in 1991. As noted, supra, Vernon ascertained that some
former employees appeared at the meeting, and he admittedly
told them the meeting was for new employees and that they
did not have to complete applications as that would merely
be duplicative. While 20–25 former employees attended the
meeting and their reapplication/reregistration process would
only take a short time, no reason was given for failing to
have them update their paperwork at the February 26 meet-
ing. Instead, Vernon testified he told such individuals a meet-
ing would be held for them later.
Vernon indicated during his testimony that he was aware
when the March 3 meeting date was set that the U–2 rock
group was to perform on that date, and he admitted he knew
a large number of stagehands would work the show. He
claimed, however, that he gave little consideration to the
scheduling of the U–2 concert when he decided on the date
and time for the March 3 meeting. With regard to the timing
of that meeting, he testified his main concern was that he
wanted Duncan to conduct the meeting as he would be su-
pervising the stagehands, and Duncan had indicated he would
be available in early March only during the morning hours
of March 3.15 Vernon added that he decided the meeting
should be held in early March as he wanted to complete the
employee application process about a month before the sea-
son started.
Respondent contends in its brief that it would have been
difficult, if not impossible, for it to choose a day for
reapplication/reregistration of 1991 employees which would
not have been found to be objectionable by the Union as en-
tertainment events were scheduled for almost every weekday
in late February and early March. In support of that claim,
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The General Counsel contends in his brief that no events were
scheduled for Monday, March 2, 1992. The record reveals the trade
show at the Charlotte Convention Center started that date and Sprin-
kle testified he referred some 24 stagehands to that event.
17 Respondent sought, through testimony of its controller, Nail, to
establish that McCown and Lynn’s employment application were not
received by Respondent after March 3, 1992. His testimony is incon-
clusive as he did not know what documents were used to obtain the
names and addresses of individuals who were asked to attend a
March 30, 1992 orientation meeting.
18 The record reveals that Holman did seek work at Respondent in
1992 by attending the February 26, 1992 meeting and by filing an
application for employment with it during the spring of 1992.
it placed Respondent’s Exhibits 11 and 17 in the record.
Generally described, the documents reveal some events re-
quiring the use of stagehands were scheduled during most
workdays, particularly during the last week of February and
the first week of March 1992.16
When he was asked why Respondent closed its 1992 em-
ployee call list at 11 a.m. on March 3, rather than continue
to accept employment applications thereafter, Vernon
claimed that was done because his small staff was too busy
to accept applications and Respondent did not hire a recep-
tionist until April 1, 1992.
While the General Counsel and Charging Party rely heav-
ily on testimony given by employee McCown, which was to
the effect that she and employee Lynn executed employment
applications at Panter’s home on March 18, 1992, Respond-
ent observes that it was stipulated near the close of the hear-
ing that if one Rocky Scarfone, the owner of a nightclub
called Rocky’s, appeared to testify, he would testify that
Panter was at his club from early evening hours to 3 a.m.
on both March 17 and 18, 1992. In view of the described
stipulation, I am not inclined to find that McCown and Lynn
visited Panter’s home on March 17 or 18, 1992.17
Referring to Respondent’s Exhibit 1, a union document
which reveals who worked the in, the show, and the out dur-
ing the U–2 concert, Respondent observes in brief that, con-
trary to their testimony, employees Larry Carter, Donnell,
Duncan, and Holman did not work the U–2 in. Inspection of
the document reveals Respondent’s contention is accurate.
Accordingly, in the absence of any explanation, I find that
Carter, Donnell, Duncan, and Holman have failed to indicate
why they could not have appeared at Respondent’s facility
to reapply and/or reregister for employment on March 3,
1992, if they desired 1992 employment.18
In addition to seeking to establish that the above-named
employees could have attended the March 3 meeting if they
desired 1992 employment, Respondent observed that alleged
discriminatees, Bradley, Bogdan, Fleming, Griffin, Hunter,
McDougald, and Wickstrom, did not appear at the hearing to
give testimony. In the situation described, Respondent sub-
mits the record fails to reveal they were interested in em-
ployment with it in 1992, and, in any event, the record fails
to establish they were unable to attend the March 3, 1992
meeting. In the same vein, Respondent observes that the
record fails to reveal that any individual contacted it prior to
the March 3 meeting to indicate they could not attend the
meeting and/or wanted to make a different arrangement for
updating their employment application.
3. Conclusions
Respondent contends the record reveals its 1992 hiring
procedures were facially neutral, were evenhandedly applied,
and were, therefore, lawful. Citing NLRB v. Community
Shops, 301 F.2d 263 (7th Cir. 1962), it contends that since
its hiring policy was facially neutral, the General Counsel
must show a specific unlawful intention on the part of the
employer to discriminate in order to prevail.
Contrary to Respondent, I find for the reasons set forth
below that Respondent’s 1992 hiring procedures were not, in
the circumstances revealed by the instant record, applied
evenhandedly.
As revealed, supra, Respondent’s 1992 hiring procedures
commenced with the conduct of a meeting on February 26,
1992, the record reveals some 20–25 experienced stagehands
who had been employed in 1991 attended the meeting. Pat-
ently, by attending the meeting, the former employees were
evidencing a desire to obtain employment with Respondent
during the 1992 season. While the record reveals that such
employees could have updated their personnel records in a
very short period of time, Respondent discouraged them from
completing any paperwork and told them the meeting was for
individuals who had never worked for it before.
During the February 26 meeting, Vernon informed the
1991 former employees that a meeting would be held for
them in the future. No date was specified even though Dun-
can credibly testified he and Vernon had decided prior to the
time he went on vacation on February 19 that the meeting
for 1991 employees would be held on March 3 during the
hours 9:30 to 11 a.m. I infer that Vernon did not tell the
former employees on February 26 that their meeting would
take place on March 3 because he did not want them to
know the date of the meeting that far in advance.
I turn now to consideration of the March 3, 1992 meeting
for former employees. Vernon claimed during his testimony
that the date of March 3 was chosen because he wanted Dun-
can to conduct the meeting, and the hours of 9:30 to 11 a.m.
were selected because Duncan had family commitments
which prevented him from devoting more time to the meet-
ing. Significantly, while Vernon admitted he knew the U–2
concert, which required many stagehands, would be held at
the Charlotte Coliseum on March 3, he denied that had any-
thing to do with the date or time chosen for the meeting.
As noted, supra, Duncan became somewhat incoherent
when he was asked to explain how the date and time of the
March 3 meeting were decided on. In the end, he claimed
the date was selected because it was the only date he was
available in early March, and he claimed the time was lim-
ited to 1-1/2 hours because he had family commitments that
afternoon. When he was asked if he visited the Charlotte
Coliseum the afternoon, he denied he had. As noted, supra,
credible employee testimony reveals that Duncan did visit
the Coliseum on the afternoon of March 3.
In sum, I conclude that Duncan tailored his testimony to
a significant extent to explain why the March 3 date and
times were chosen for the meeting with former employees.
In the circumstances revealed by the record, I do not credit
Vernon’s claim that the scheduled U–2 concert had nothing
to do with the selection of the date for the meeting, and, in
the absence of corroboration, I do not credit Duncan’s claim
that he had family obligations to fill on March 3.
141BLOCKBUSTER PAVILION
Patently, by limiting the former employees’ opportunity to
qualify for employment with it in 1992 to the hours 9:30 to
11 a.m. on March 3, 1992, Respondent engaged in conduct
which was not evenhanded. As noted, supra, the record re-
veals that Respondent accepted and acted on employment ap-
plications throughout the 1991 season. In an attempt to sup-
ply a business-related reason for ceasing to consider further
employees for inclusion on the 1992 call list after 11 a.m on
March 3, 1992, Vernon testified Respondent had no clerical
help to accept applications between March 3 and April 1
when it hired a receptionist, and that he wanted to complete
the hiring procedures about a month prior to the opening of
the season. Quite apart from the fact that Respondent knew
before setting the described time limits that the U–2 group
was to play in Charlotte on March 3, it, by giving what must
be described as a ‘‘last minute’’ notice of the March 3 meet-
ing date, could necessarily anticipate that a number of the
invitees would be unable to attend the meeting on such short
notice due to prior commitments. I infer that such a result
was intended, and I find that by limiting the time during
which 1991 employees could qualify for placement on its
1992 call list to 1-1/2 hours on March 3, 1992, Respondent
was not acting evenhandedly.
In sum, the following indicia, coupled with the 8(a)(1) vio-
lations committed by McKinney, Duncan, and Panter, which
are set forth supra, cause me to conclude that Respondent re-
fused to rehire stagehands who had worked for it in 1991 in
1992 pursuant to a plan to dissipate the Union’s majority
standing among its employees: (1) the refusal to permit the
20–25 former employees attending the February 26, 1992
meeting to update their employment information; (2) the fail-
ure to announce on February 26, 1992, the previously sched-
uled meeting for 1991 employees on March 3, 1992; (3) the
intentional scheduling of a meeting for former employees on
a day when a large concert attended by numerous stagehands
was scheduled; (4) the posting of a last-minute notification
that a meeting would be held for former employees on
March 3, 1992; (5) the limitation of acceptance of employ-
ment data from former employees to a 1-1/2-hour period on
March 3, 1992; and, (6) unlike the practice in 1991, the re-
fusal to accept employment information from former employ-
ees after 11 a.m on March 3, 1992.
With respect to Respondent’s claim that the General Coun-
sel must show that Respondent had a specific intent to dis-
criminate against its 1991 employees when it engaged in the
described actions at the February and March meetings, I find
the record contains sufficient evidence of purpose to estab-
lish discriminatory intent. Specifically, the 8(a)(1) violations
found in the statements and actions of Supervisors McKin-
ney, Panter, and Duncan and the on 8(a)(3) discrimination
underlying the refusals to call employees Shumaker and Can-
ady to work support the conclusion that antiunion animus
pervaded the Respondent’s refusal to consider former em-
ployees for 1992 employment after March 3, 1992. More-
over, noting that all the alleged discriminatees except Flem-
ing, Jenkins, and Wickstrom have been shown to have exe-
cuted authorization cards for the Union while employed by
Respondent in 1991, I find that by refusing to consider mem-
bers of that group for employment during the pendency of
a petition for an election among Respondent’s stagehand em-
ployees, Respondent engaged in conduct which was ‘‘inher-
ently destructive’’ of important employee rights. In such situ-
ations, no proof of antiunion motivation is needed and the
Board can find an unfair labor practice even if an employer
introduces evidence that the conduct was motivated by busi-
ness considerations. Borg Warner Corp., 245 NLRB 513
(1979); NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
For the reasons stated, I find that Respondent has failed
to establish that it would have refused to hire its former em-
ployees who failed to supply it with updated employment in-
formation prior to the March 3, 1992 deadline in the absence
of their participation in protected activity and/or their support
of the Union. By engaging in such action, I find that Re-
spondent violated Section 8(a)(1) and (3) of the Act. I spe-
cifically find that Respondent unlawfully refused to consider
the following named employees for employment in 1992:
Amanda Ayers, Bob Bergen, John Broadus, Dean Burchett,
Laura Carter, Byron Fleming, Bruce Grier, Karl Hoffman,
Benjamin Howe, P. W. Jenkins, Mike Kelly, Michael
Mariette, Mike Murphy, Michael Neely, Sharon Redmond,
James Shumaker, David Stevens, Craig Taylor, Carl Welch,
and James Holman.
Respondent contends in brief that General Counsel did not
prove that it discriminatorily refused to hire (1) the alleged
discriminatees who did not appear at the hearing to give tes-
timony and (2) those employees who falsely testified they
were unable to attend the March 3 meeting because they
were working the in at the U–2 concert. I agree in part.
The alleged discriminatees named in paragraph 10 of the
complaint who did not appear to give testimony during the
proceeding are Freedom, Bradley, Joe Bogdan, Ernest Grif-
fin, Calvin Hunter, Gerald McDougald, and Eric Wickstrom.
As the General Counsel failed to establish that the named in-
dividuals remained available for employment in the Char-
lotte, North Carolina area during 1992, and that they desired
employment at Respondent, I recommend that the complaint
be dismissed as to them.
The alleged discriminatees who failed to establish that
they were prevented from attending the March 3, 1992 meet-
ing because they were working the in at the U–2 concert are
Larry Carter, Bob Donnell, Jim Duncan, and James Holman.
As the record reveals the first three named individuals were
in the Charlotte, North Carolina area on March 3, 1992, and
they failed to give a truthful reason for not attending Re-
spondent’s March 3, 1992 meeting for former employees. I
find that the General Counsel failed to establish that they
were denied employment by Respondent in 1992 for dis-
criminatory reasons. I recommend the complaint be dis-
missed as to them. With respect to Holman, the record re-
veals that he sought 1992 employment with Respondent by
attending the February 26, 1992 meeting and by filing an ap-
plication for employment during the spring of 1992. He, to-
gether with other employees, was denied consideration for
employment pursuant to Respondent’s plan to dissipate the
Union’s majority status. Accordingly, I find that by denying
Holman consideration for employment in 1992, Respondent
violated Section 8(a)(1) and (3) of the Act.
D. The Request for a Gissel Remedy
1. The appropriate bargaining unit
Paragraph 12 of the complaint alleges the following to be
a unit appropriate for bargaining within the meaning of Sec-
tion 9(b) of the Act:
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Ayres, Bass, Fish, Fuller, Golden, Hatley, Hellman, Hill,
Jamison, Dan Jones, Mariette, Martin, Massachi, McCabe, P. Mur-
phy, Perry, Raisbeck, Redden, Reed, Roark, Schochet, Sheldrick,
Sparks, Stinson, Vandervort, and Williford.
All riggers, spot light operators, loaders, forklift op-
erators, stage craft and wardrobe employees employed
by Respondent at its Charlotte, North Carolina facility
excluding all other employees, guards and supervisors
as defined in the Act.
Respondent contends any unit found to be appropriate
should include crew chiefs and maintenance employees and
should exclude wardrobe employees and independent con-
tractors.
The instant record reveals that Respondent has treated
stagehand employees as a separate and distinct group
throughout the 1991 and 1992 seasons. Thus, it reveals that
stagehands have been hired by Respondent’s crew chief after
attending meetings held for stagehand applicants only; that
stagehands perform work only on days when entertainment
is presented; that the work of stagehands is solely related to
the presentation of entertainment; that stagehands are super-
vised by both Respondent supervisory personnel and per-
sonnel of various entertainment groups; that stagehands are
identified as a separate employee group as they wear black
T-shirts while working; that such employees’ earnings are
determined by the segments of the show which they work
and that they are paid a minimum call of 4 hours, but receive
no premium pay for overtime hours worked; and the work
of stagehands is critiqued at meetings held for stagehands
only after their work during a given event is completed.
As noted in the briefs filed by the General Counsel and
Charging Party, the Board has long recognized that
stagehands have a separate and identifiable community of in-
terest apart from other employees by virtue of the specialized
nature of their job functions, and it has found such units of
employees to be appropriate units for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act. Six Flags Over Georgia, 215 NLRB 809, 810 (1974);
American Zoetrope Productions, 207 NLRB 621 (1973). Cit-
ing Broadway Catering Corp., 260 NLRB 1200 (1982), the
Respondent contends that its crew chief and the maintenance
employees employed by it during the 1991 share a sufficient
community of interest with stagehands as to require their in-
clusion in any unit found to be appropriate.
With respect to maintenance employees, the record reveals
that, at different times during the 1991 season, Respondent
employed five such employees. In support of the contention
that they share a community of interest with stagehands, Re-
spondent observes that General Manager Vernon testified
that maintenance employees frequently work on stage with
stagehands performing electrical work on house wiring; they
use the same restrooms, lunchroom, and facility entrance;
they are both hourly paid; and that, as general manager, Ver-
non is responsible for supervising the entire staff of the facil-
ity, including maintenance and stagehand employees. While
the described areas of commonality do exist, the record re-
veals that, unlike stagehands who work only on days when
entertainment is presented, maintenance employees are em-
ployed throughout the workweek from the beginning of the
season until shortly before Christmas. Unlike the hands, the
maintenance employees take no active part in presentation of
entertainment; they are hired by someone other than the crew
chief; and they receive their immediate supervision from the
general manager or his assistant rather than from the crew
chief, the production managers, or show personnel. Finally,
the record fails to reveals that there is any interchange be-
tween the stagehand and the maintenance personnel.
In sum, I find that the record reveals that stagehands are
a separate and distinct group and that Respondent has failed
to establish that maintenance employees share sufficient
community of interest with stagehands to require their inclu-
sion in any unit found to be appropriate. I have considered
the Board’s decision in Broadway Catering Corp., supra,
cited by Respondent and find that case to be distinguishable
as the unique nature of the employer’s business which ex-
isted in that case has not been shown to exist in the instant
case.
As I have found, supra, that Respondent’s crew chiefs are
supervisors within the meaning of Section 2(11) of the Act,
I find they should be excluded from the unit.
Noting that wardrobe employees participate meaningfully
in the preparation and presentation of entertainment events
by performing wardrobe unloading and unpacking; accom-
plishing sewing repairs and pressing of garments; assisting in
the dressing, changing, and undressing of performers; and ac-
complishing repacking of garments and wardrobe, I find that
wardrobe employees who are placed on Respondent’s payroll
are properly included in the unit. I find that independent con-
tractors who participate in the presentation of entertainment
at Respondent’s facility, who are engaged by the entertaining
group, are not properly included in the unit. Insufficient evi-
dence was adduced to establish whether contractors em-
ployed by Respondent are employees or independent contrac-
tors.
For the reasons stated, I find the following to be an appro-
priate unit for collective bargaining within the meaning of
Section 9(b) of the Act:
All riggers, spot light operators, loaders, forklift op-
erators, stage craft and wardrobe employees employed
by Respondent at its Charlotte, North Carolina facility
excluding all other employees, guards and supervisors
as defined in the Act.
2. The Union’s majority status
Joint Exhibits 1(a) and (b), stipulated to be a listing of
stagehands employed by Respondent during the 1991 season,
reveals Respondent employed 97 stagehands during the 1991
season. Review of Joint Exhibit 1(b), which is a summary of
Joint Exhibit 1(a), together with Respondent’s Exhibit 14,
payroll information, reveals that 26 of the 97 employees
worked only one show during the 1991 season.19
In Medion Inc., 200 NLRB 1013 (1972), the Board consid-
ered a situation wherein employees, as in the instant case,
sometimes worked for only a day and were then laid off
without any promise of reemployment. When work was
available again, the employer recalled those who had proved
satisfactory in the past. The formula chosen by the Board in
Medion was to give a vote to any employee employed by
Medion on at least two productions for a minimum of 5
working days during the year preceding the issuance of the
Board’s decision, if they had not quit or been terminated for
143BLOCKBUSTER PAVILION
20 Long ago, in Transfilm, Inc., 100 NLRB 78 (1952), and in Inde-
pendent Motion Picture Producers Assn., 123 NLRB 1942 (1959),
the Board found that a single day’s employment is too casual to es-
tablish the bargaining interest of a prospective voter.
21 Mariette, Bergen, Hoffman, Duncan, Donnell, Ruth Taylor,
Laura Carter, Janice Lorenz, Broadus, Grier, Welch, Michael Kelly,
Stevens, Neely, Canady, Holman, Shumaker, Jenkins, Michael Mur-
phy, Phillip Murphy, Williams, Kawamoto, Miller, Lawrence Carter,
McManus, Andrews, Patrick Kelly, Lewis, Millsap, Severs, Smith,
Yancy, Weslie Taylor, Fowler, Howe, Barbee, Fleming, Hawk,
Hunter, Letto, McDougald, Reber, Winkler, Stimson, Cook, Bogdan,
Ayers, Susan Lorenz, Martin, and Curry.
22 Charging Party urges me to compare employee Jerry Lee Cur-
ry’s card signature (G.C. Exh. 67) with his W–4 form signature
(G.C. Exh. 68) and receive the card in evidence. I refrain from so
doing as Charging Party failed to establish that the W–4 form in
question constituted a record kept by Respondent in the ordinary
course of business.
23 Respondent claims Redmond’s card is not valid because she
originally placed another employee’s name on the card. The card
now designates ‘‘Blockbuster Pav’’ as the employer and indicates
Redmond worked as a ‘‘stagehand.’’ I find the card, which contains
no ambiguities, to be valid.
24 R. Exh. 16.
cause. Subsequently, in American Zoetrope Productions, 207
NLRB 621 (1973), the Board applied the general approach
it had taken in Medion and found eligible to vote employees
who had worked on at least two productions as it appeared
most unit jobs lasted only 1 or 2 days as opposed to 5 days
as in Medion.20 I find the instant situation to be substantially
like the situation which existed in American Zoetrope Pro-
ductions, and, accordingly, find that authorization cards of
employees who worked on two or more productions during
Respondent’s 1991 season should be counted to ascertain
whether the Union represented a majority of employees in
the appropriate bargaining unit on October 17, 1991. See also
Transfilm, Inc., supra, and Independent Motion Picture Pro-
ducers, supra.
As indicated, supra, the Union filed a petition in Case 11–
RC–5796 on August 28, 1991. The unit set forth in the peti-
tion was identical to the one I have found to be an appro-
priate unit, supra. Thereafter, at the October 4, 1991, meet-
ing, the Union claimed to represent a majority of Respond-
ent’s stagehands, and it indicated it desired that Respondent
enter a contract with it regarding those employees. Respond-
ent refused. I find that by filing the described petition and
taking the October 4, 1991 action, the Union made a valid
demand for recognition as the bargaining agent of employees
in an appropriate unit.
During the hearing, the General Counsel amended the
complaint to allege that the Union has enjoyed majority sta-
tus since August 28, 1991, and continuing thereafter, and
more particularly since October 17, 1991. My review of the
record reveals that on or before August 28, 1991, 50 Re-
spondent employees had signed authorization cards.21 Five of
those employees worked for Respondent only 1 day during
the 1991 season, and their authorization cards cannot prop-
erly be counted. They are: Mariette, Murphy, Williford,
Stimson, and Susan Lorenz. Thus, on August 28, 1991, I find
that the Union represented 45 employees by virtue of their
execution of valid authorization cards.22 As the number of
employees in the unit as of that date was 71, the Union en-
joyed majority status as of August 28, 1991. By October 17,
1991, five additional employees had executed valid author-
ization cards (Burchett, Fulbright, Redmond, Bradley, and
Griffin).23 It is clear that the Union, which then had 51 valid
authorization cards signed, represented a majority of the em-
ployees in the appropriate unit.
3. Appropriateness of a bargaining order
The General Counsel and Charging Party contend a bar-
gaining order should issue in the case under the teachings of
NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969). In
making this argument, they contend the unfair labor practices
committed by Respondent fell within the second category of
cases outlined in Gissel, i.e., cases where the unfair labor
practices are less pervasive than those outlined in the first
Gissel category, but still so serious or egregious that the pos-
sibility of erasing the effects of such practices by the use of
traditional remedies is so slight as to render uncertain the
possibility of a fair election and making reliance on union
authorization cards a more reliable basis for determining
union majority status. I agree.
Here, the record reveals that shortly after the employees
began their organizing activities on behalf of the Union, Re-
spondent embarked on a course of conduct designed to un-
dermine the Union’s strength. Thus, Crew Chief McKinney
informed 20–25 employees on August 24, 1991, that Re-
spondent would fire them if they signed union authorization
cards, and that it would burn the facility before it would per-
mit it to be unionized. The Board has held, with court ap-
proval, that threats of plant closure and discharge are ‘‘hall-
mark’’ violations which are ‘‘among the most flagrant’’ of
unfair labor practices. Action Auto Stores, 298 NLRB 875
(1990) (citing Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d
1292, 1301–1302 (6th Cir. 1988), enfg. 287 NLRB 796
(1987)). After engaging in the above-described activity,
McKinney intimidated an employee in violation of Section
8(a)(1) and Respondent violated Section 8(a)(3) by refusing
to call an employee for a show because of his ‘‘union
stance.’’
Respondent, observing that the Union is claimed to have
attained majority status despite the commission of unfair
labor practices, argues that unfair labor practices committed
by Respondent in 1991 would not warrant issuance of a bar-
gaining order. I agree, but hasten to observe that Respondent
continued its efforts to undermine the Union’s strength in
1992. Thus, as found, supra, during February and March, it
conducted its hiring procedures for the 1992 season in a
manner which violated Section 8(a)(3) and deprived 20
former employees who had signed authorization cards for the
Union of employment at its facility in 1992. During the same
months, it hired some 101 stagehand employees, only 23 of
which had worked for it in 1991.24 Finally, it continued to
intimidate employees in violation of Section 8(a)(1) by inter-
rogating them concerning their union sentiments and the sen-
timents of other employees, and by continuing to violate Sec-
tion 8(a)(3) by refusing to call an employee to work shows
because she engaged in union activities.
Considering all the foregoing, including, in particular, the
fact that Respondent practically replaced the 1991 stagehand
crew lock, stock, and barrel in 1992, I conclude the possi-
bility of erasing the effect of Respondent’s unfair labor prac-
tices and ensuring a fair election by use of traditional rem-
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
edies is slight. Accordingly, I conclude that employee senti-
ment expressed through authorization cards would be better
protected by issuance of a bargaining order in this case. As
the Board said in Brenal Electric, 271 NLRB 1557, 1558
(1984), ‘‘To hold otherwise in this case would allow Re-
spondent to benefit from its unlawful conduct.’’ Accordingly,
I find the Respondent violated Section 8(a)(5) of the Act by
refusing the Union’s request for recognition and bargaining
on October 4, 1991. Consistent with the Board’s policy as
set forth in Trading Port, 219 NLRB 298 (1975), I rec-
ommend issuance of a bargaining order applied retroactively
to October 4, 1991, the date of the Union’s request for bar-
gaining, and following the date on which Respondent em-
barked on its unfair labor practice campaign.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All riggers, spot light operators, loaders, forklift op-
erators, stage craft and wardrobe employees employed
by Respondent at its Charlotte, North Carolina facility
excluding all other employees, guards and supervisors
as defined in the Act.
4. Commencing about August 28, 1991, and continuing
thereafter, the Union was designated by a majority of Re-
spondent’s employees in the bargaining unit described above
as the exclusive collective-bargaining representative.
5. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by informing employ-
ees they were denied work opportunities because they en-
gaged in union activities; threatening employees with dis-
charge if they engaged in union activity; threatening to burn
its facility before allowing the Union to represent its employ-
ees; interrogating employees concerning their union senti-
ments and the union sentiments of other employees; and
threatening not to give work to employees who promoted the
Union.
6. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by refusing
to call James Shumaker to work a show on September 12,
1991; by refusing Katherine Canady work after July 16,
1991; and by refusing to consider for employment during the
1992 season the 20 employees named below in the the rem-
edy section of this decision.
7. By refusing to recognize and bargain with the Union as
the exclusive bargaining representative of its employees in
the appropriate unit set out above on and after October 4,
1991, while engaging in serious and egregious unfair labor
practices set out above, Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) of the Act.
8. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily refused to
call employee James Shumaker to work a show on Sep-
tember 12, 1991, and having found that it discriminatorily
limited employee Katherine Canady’s work opportunities
after July 16, 1992, during its 1992 season, I shall rec-
ommend that it be required to make the named employees
whole for any loss of earnings they may have suffered by
reason of the discrimination against them, with interest. Hav-
ing found that Respondent discriminatorily refused to con-
sider the 20 employees named below for employment during
the 1992 season, I shall recommend that it be required to
offer them immediate employment as stagehands, at the start
of the 1993 season and that it be required to make them
whole for any loss of earnings they may have suffered as a
result of the discrimination against them, with interest. Back-
pay is to be computed in accordance with the formula pro-
vided in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent violated Section 8(a)(5)
of the Act and that a bargaining order is appropriate in the
circumstances of this case, consistent with the Board’s policy
set forth in Trading Port, supra, and applied in Donelson
Packing Co., 220 NLRB 1043 (1975), enfd. 569 F.2d 430
(6th Cir. 1978), I shall recommend that the bargaining order
shall be made effective from October 4, 1991, the date of the
Union’s request for recognition and bargaining after Re-
spondent had commenced its unfair labor practices and after
the Union had obtained its majority status on August 28,
1991.
Charging Party requests in its brief that Respondent be re-
quired, in addition to posting a notice to employees at its fa-
cility, to mail signed copies of the notice to all employees
on the Respondent’s call list during the 1991 and 1992 sea-
sons. I find, instead, that the same general purpose can be
accomplished by providing the Union with signed copies of
the notice to employees for posting at its union hall if it is
willing to do so.
The employees unlawfully denied consideration for em-
ployment during the 1992 season are Amanda Ayers, Bob
Bergen, John Broadus, Dean Burchett, Laura Carter, Byron
Fleming, Bruce Grier, Karl Hoffman, Benjamin Howe, P. W.
Jenkins, Mike Kelly, Michael Mariette, Mike Murphy, Mi-
chael Neely, Sharon Redmond, James Shumaker, David Ste-
vens, Craig Taylor, Carl Welch, and James Holman.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
145BLOCKBUSTER PAVILION
26 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Charlotte Amphitheater Corporation d/b/a
Blockbuster Pavilion, Charlotte, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees they were denied work opportu-
nities because they engaged in union activities.
(b) Threatening employees with discharge if they engage
in union activity.
(c) Threatening to burn its facility before allowing the
Union to represent employees.
(d) Interrogating employees concerning their union senti-
ments and the union sentiments of other employees.
(e) Threatening not to give work to employees who pro-
mote the Union.
(f) Denying employees work opportunities because they
join or support the Union.
(g) Refusing to consider former employees for employ-
ment in order to undermine the strength and majority stand-
ing of the Union.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole employees James Shumaker, Katherine
Canady, and the 20 employees named in the the remedy sec-
tion of this decision for loss of earnings they suffered as a
result of the discrimination against them, with interest, and,
at the beginning of the 1993 season, offer immediate em-
ployment as stagehands to the 20 employees whose names
are set forth herein.
(b) Recognize and, on request, bargain in good faith with
International Alliance of Theatrical Stage Employees and
Moving Picture Operators, Local 322, as the exclusive col-
lective-bargaining representative of the employees in the ap-
propriate bargaining unit set forth below, and, if an under-
standing is reached, reduce the agreement to writing and sign
it. The appropriate unit is:
All riggers, spot light operators, loaders, forklift op-
erators, stage craft and wardrobe employees employed
by Respondent at its Charlotte, North Carolina facility
excluding all other employees, guards and supervisors
as defined in the Act.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this recommended
Order.
(d) Post at Respondent’s Charlotte, North Carolina facility
copies of the attached notice marked ‘‘Appendix.’’26 Copies
of the notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s authorized
representative, shall be posted immediately upon receipt and
be maintained by Respondent for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material. Signed cop-
ies of such notice to employees shall be mailed to the Union
for posting, if it desires to do so.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.