FleetBoston Pavilion

FLEETBOSTON PAVILION 655 DLC Corp. d/b/a FleetBoston Pavilion and Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Technicians and Allied Crafts of the United States and its Territories and Canada, Petitioner. Case 1–RC–21210 March 16, 2001 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election held on August 28, 2000, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Elec- tion issued by the Regional Director on July 24, 2000. The tally of ballots shows 29 for and 0 against the Peti- tioner, with 1 challenged ballot, which was insufficient to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs, and adopts the hearing officer’s rec- ommendations1 only to the extent consistent with this Decision and Certification of Representative. 1. The Employer operates an outdoor entertainment venue in Boston, Massachusetts, known as the FleetBos- ton Pavilion (Pavilion). The Employer and the Peti- tioner’s Local 11 are parties to a collective-bargaining agreement covering half the stagehands working at any given time at the Pavilion. The election was held in a unit of all the Employer’s stagehands. In Objection 1, the Employer contends that it was ob- jectionable conduct for the Petitioner to promise during its campaign, to negotiate a collective-bargaining agree- ment that would base entitlement to work on the amount of time the employee had worked for the Employer at the Pavilion. We agree with the hearing officer that the Peti- tioner’s conduct was not objectionable and that the Em- ployer’s reliance on Alyeska Pipeline Service Co., 261 NLRB 125 (1982), to support its argument that Objection 1 be sustained, is misplaced. However, we do not agree with his distinguishing of Alyeska from this case on the basis that Alyeska involved “intra-unit discrimination.” The Board has held that Employees are generally able to understand that a un- ion cannot obtain benefits automatically by winning an election but must seek to achieve them through collec- tive bargaining. Union promises . . . are easily recog- nized by employees to be dependent on contingencies beyond the Union’s control and do not carry with them the same degree of finality as if uttered by an employer who has it within his power to implement promises or benefits. [Smith Co., 192 NLRB 1098, 1101 (1971).] 1 In the absence of exceptions, we adopt pro forma the hearing offi- cer’s recommendation to overrule the Employer’s Objections 2 and 4. Alyeska represents a limited exception to this general rule. In Alyeska, the union controlled “all access to con- struction jobs in Alaska” for the employees participating in the election.2 Therefore, when the union suggested that the only way employees could obtain a union card was by voting for the union in the upcoming election, and that “those fortunate enough to possess a Local 1547 membership card would be in an extremely favorable priority position [when it came to hiring] compared with those lacking a card,”3 it was clear not only that the union was promising to grant members an advantage over nonmembers in obtaining jobs, but also that the union had the power to effectuate that promise. In Station Op- erators, Inc., 307 NLRB 263 fn. 1 (1992), the Board made clear that the holding in Alyeska was tied to its special facts: In Alyeska Pipeline, the Board found that a union en- gaged in objectionable conduct by suggesting during an election campaign that members would have an advan- tage over nonmembers in obtaining jobs through the union’s exclusive hiring hall. The situation here is not akin to the hiring hall context[] in [Alyeska], where the union controlled access to jobs. In addition, the Peti- tioner’s letter does not promise to represent or treat members differently from nonmembers, but rather sets forth the benefits that allegedly could be obtained from collective bargaining and union membership. Such statements do not exceed the bounds of privileged campaign propaganda. Here, unlike Alyeska, the Union does not maintain ex- clusive control of staffing and referrals. Rather, hiring procedures for the Pavilion would be subject to the col- lective-bargaining process. In addition, the Union’s promise was made to all employees without reference to union membership or support. Under these circum- stances, we agree with the hearing officer that Objection 1 should be overruled. 2. Objection 3 alleges that the Petitioner’s designation of Local 11 President Robert P. Volosevich as the Peti- tioner’s election observer was objectionable because he was (1) not an employee of the Employer and (2) respon- sible for referring eligible voters for work at FleetBoston Pavilion and other venues where Local 11 supplies em- ployees. 2 261 NLRB at 127. 3 Id. at 126. 333 NLRB No. 79 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 We agree with the hearing officer that Volosevich’s serving as the Petitioner’s observer during the election did not constitute objectionable conduct.4 First, Vo- losevich had worked frequently for the Employer until about 4 years ago when he sustained a back injury on the job. Indeed, Volosevich is scheduled to undergo surgery in the near future which, if successful, will allow him to resume the work he had performed for the Employer. In view of Volosevich’s employment history with the Em- ployer, he was capable, as election observers must be, of properly identifying the employees who came to vote. Further, contrary to the Employer’s contention, the evidence established that Volosevich played no role in the hiring hall’s referral of employees for work and that there was no opportunity for him to exert potential or actual coercion over the voting preferences of the em- ployees in the unit. It is the duty of Local 11’s business manager, not its president, to operate the hiring hall and to assign work. The only evidence the Employer could offer to show that Volosevich had any control over the hiring hall or assignment of work was a vague statement in the Local’s constitution that the president is obligated to “see that all officers perform their respective duties.” From this single statement, the Employer asserts that because Volosevich was responsible to see that other officers, including the business manager, performed their duties he was ultimately responsible for the business manager’s assignment of work. This falls far short of establishing that Volosevich controlled the assignment of work to unit employees. Finally, there is no contention that Volosevich engaged in any misconduct or electioneering during his tenure as the Petitioner’s election observer, and there is no evi- dence that Volosevich’s participation as an observer re- sulted in any prejudice to the fairness of the election. For all these reasons, we agree with the hearing officer that Objection 3 should be overruled. 3. The hearing officer found, in agreement with the Regional Director in her Decision and Direction of Elec- tion, that the Employer’s contract with Local 11 was an unlawful members-only agreement.5 On that basis alone, he recommended that the election be set aside and a new election directed. We reverse. Contrary to the hearing officer, we find that the Employer’s contract with Local 4 In agreeing with the hearing officer that Objection 3 should be overruled, we do not rely on fn. 11 of the hearing officer’s report. 5 The Regional Director found that the contract between Local 11 and the Employer was an “unlawful ‘members only’ agreement” and as such was not a bar to an election where the International is the Peti- tioner. In denying the Employer’s request for review of the Regional Director’s decision, the Board found it unnecessary to decide if the “members only” contract was an unlawful agreement because “in either event it does not constitute a bar to the instant petition.” 11 is not a proper basis on which to set this election aside. First, The Employer did not object to the election based on the hiring hall relationship between Local 11 and the Employer. Therefore, the issue was not before the hearing officer. As the Board stated in Precision Products Group, 319 NLRB 640, 641 (1995), a hearing officer lacks authority to “consider issues that are not reasonably encompassed within the scope of the objec- tions that the Regional Director set for hearing.” In Iowa Lamb Corp., 275 NLRB 185 (1985), the hearing officer asserted that “the absence of a specific objection did not foreclose considering the conduct as objectionable,” and the Board responded as follows: The Petitioner did not allege that the statement was ob- jectionable, the Regional Director did not identify it as an issue in his order directing hearing, and at the hear- ing the hearing officer did not inform the parties he would consider it in his report. Further, based on our review of the record, we find that the issue was not fully litigated. We therefore conclude that the hearing officer erred in considering an issue that was not liti- gated and was wholly unrelated to the issues set for hearing. As in Iowa Lamb, the Employer did not allege the hir- ing hall arrangement between Local 11 and the Employer as an objection and, in fact, maintained throughout the hearing and in its briefs that its historic bargaining rela- tionship with Local 11 was lawful.6 In her order direct- ing hearing, the Regional Director did not identify the hiring hall relationship as an issue to be addressed at the hearing. The hearing officer did not inform the parties at the hearing that he intended to consider the hiring hall relationship in his report. We further find that the lawfulness or unlawfulness of the Employer’s historic bargaining relationship with Lo- cal 11 is unrelated to the issues set for hearing by the Regional Director. The fact that some evidence admitted in support of Objection 1 (the International’s promises on job referral) and Objection 3 (the International’s ob- server) may have peripherally touched on the hiring hall arrangement does not mean that the historic hiring hall relationship is “sufficiently related to the objections set for hearing,” as the hearing officer found. To the con- trary, we find that the legality of the arrangement is not reasonably encompassed within the scope of the objec- tions set by the Regional Director for hearing. 6 Further, in its exceptions to the hearing officer’s report, the Em- ployer admits that “the hearing officer’s decision to set aside the elec- tion [because of the hiring hall relationship between the Employer and Local 11] was seriously flawed.” FLEETBOSTON PAVILION 657 In addition, as in Iowa Lamb, the issue on which the hearing officer recommended setting aside the election was not fully litigated. In fact, the hearing officer limited the evidence on the hiring hall to that which would aid in a determination of whether the then-current hiring hall system was different from the system “promised” by the International in its campaign literature, and whether Lo- cal 11 President Volosevich had any role in assigning work through the hall. The hearing officer did not admit evidence on whether the hiring hall arrangement was lawful or unlawful. The matter, therefore, cannot serve as the basis for setting the election aside. The hearing officer’s reliance on American Safety Equipment Corp., 234 NLRB 501 (1978), is misplaced. That case involves the duty of a Regional Director to consider evidence pre- sented to him during the administrative investigation of the objections. As the Board made clear in its subse- quent decisions in Iowa Lamb and Precision Products, once the objections are at the hearing stage, the parties are entitled to fair notice of the matters that can serve as the basis for setting the election aside. Accordingly, we shall issue a certification of representative. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for the International Alliance of Theatri- cal Stage Employees and Moving Picture Technicians and Allied Crafts of the United States and its Territories and Canada, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time, regular part-time, and on-call stage hands, stage electricians, stage carpenters, dimmer board per- sons, stage riggers, property persons, loaders and unloaders, spotlight operators, cue persons, and sound persons employed by the Employer at its FleetBoston Pavilion in Boston, Massachusetts, but excluding all other employees, guards, and supervisors as defined in the Act.