Blockbuster Pavilion

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1274 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
Charlotte Amphitheater Corporation d/b/a Block-
buster Pavilion and International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators, Local 322. Cases 11–CA–
14684, 11–CA–14898, and 11–CA–14996
August 25, 2000
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 27, 1994, the National Labor Relations Board
issued a Decision and Order1 in this proceeding finding
that the Respondent violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act. The Respondent’s
violations, which occurred during a union organizing
campaign,2 included informing employees that they were
denied work opportunities because they engaged in union
activities; threatening employees with discharge if they
engage in union activity; threatening to burn its facility
before allowing the Union to represent employees; inter-
rogating employees concerning their union sentiments
and the union sentiments of other employees; threatening
not to give work to employees who promote the Union;
denying employees work opportunities because they join
or support the Union; and refusing to consider former
employees for employment in order to undermine the
strength and majority standing of the Union. Because of
the severity of the unfair labor practices, the Board found
that a bargaining order was appropriate under the test set
forth in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).
The Respondent filed a petition for review with the
United States Court of Appeals for the District of Co-
lumbia Circuit, and the Board filed a cross-application
for enforcement. In an opinion issued on April 30,
1996,3 the court enforced the Board’s unfair labor prac-
tice findings, commenting that “[w]e do not question that
the Company’s unfair labor practices were numerous and
serious,”4 but the court remanded the case to the Board
solely for consideration of whether other traditional
remedies would be adequate to erase the effects of the
unfair labor practices and for consideration of evidence
bearing on the propriety of the bargaining order in light
of changed circumstances.
On July 30, 1996, the Board advised the parties that it
had decided to accept the court’s remand and invited
statements of position. Thereafter, the Union filed a
statement of position, and the Respondent filed a state-
ment of position with an affidavit in support of its con-
tentions with respect to changed circumstances. On Feb-
ruary 4, 1997, the Board issued an order reopening re-
cord and remanding proceeding for further hearing be-
fore an administrative law judge to allow the parties to
present relevant evidence in light of the court’s opinion.

1 314 NLRB 129 (1994).
2 The Union twice filed petitions with the Board for a representation
election. The first petition, which was filed on August 28, 1991, was
withdrawn on October 4, 1991 (Case 11–RC–5796); the second peti-
tion, which was filed on October 16, 1991, is pending. (Case 11–RC–
5813.)
3 Blockbuster Pavilion v. NLRB, 82 F.3d 1074 (D.C. Cir. 1996).
4 Id. at 1080.
On September 25, 1997, Administrative Law Judge
John H. West issued the attached supplemental decision
recommending that the Gissel bargaining order be af-
firmed.
The Respondent filed exceptions, a supporting brief,
and a motion to reopen the record.5
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered its original decision, the
judge’s supplemental decision, and the record in light of
the court’s remand, which the Board accepted as the law
of the case,6 and the parties’ statements of position, ex-
ceptions, and brief, and has decided to affirm the judge’s
rulings, findings,7 and conclusions only to the extent con-
sistent with this Decision and Order. We reverse the
judge’s recommended Order, delete the bargaining order
from the original Decision and Order in this proceeding,
and substitute the attached Order for that of the judge.
Contrary to the judge, we find that, in light of the sub-
stantial passage of time since the Gissel bargaining order
was originally issued in this case on June 27, 1994, a
bargaining order likely would be unenforceable. The
Board has recognized that an excessively long delay of
proceedings at the Board may render a bargaining order
unenforceable.8 Here, approximately 6 years have
5 In light of our decision reversing the judge’s recommendation to
affirm the Gissel bargaining order, the Respondent’s motion to reopen
the record to admit newly available evidence relating to the reinstate-
ment of employees is denied as moot.
6 Although we have accepted the court’s remand as the law of the
case here, we note that the Board traditionally assesses the validity of a
bargaining order based on an evaluation of the situation as of the time
the unfair labor practices were committed. See, e.g., Salvation Army
Residence, 293 NLRB 944, 945 (1989), enfd. mem. 923 F.2d 846 (2d
Cir. 1990).
7 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
8 See Regal Recycling, Inc., 329 NLRB 355 (1999) (the Board re-
versed a Gissel bargaining order and directed a second election based
on the “excessively long delay” of over 5 years since the administrative
law judge recommended the issuance of a bargaining order). See also
Wallace International de Puerto Rico, 328 NLRB 29 (1999) (the Board
declined to issue a Gissel bargaining order and instead directed a sec-
ond election because the unjustified delay of the case at the Board for
almost 4 years had likely rendered the recommended bargaining order
unenforceable).
331 NLRB No. 165
BLOCKBUSTER PAVILION 1275
passed since the Gissel bargaining order was issued.
Further litigation and delay over the propriety of the bar-
gaining order at issue would not serve the interests of the
employees.9 An election was never held in this case.
But as we noted above, a representation petition, filed on
October 16, 1991, is pending.10
Although we reverse the judge’s recommendation in
his supplemental decision to affirm the Gissel bargaining
order, we find that several special remedies are necessary
to dissipate as much as possible any lingering effects of
the Respondent’s “numerous and serious”11 unfair labor
practices, and to ensure that, if the pending representa-
tion petition results in an election being held, the election
can occur in an environment free of these effects. The
delay in this case, although unfortunate, was neither the
fault of the Union nor of the employees who were sub-
jected to the Respondent’s unfair labor practices. Fur-
ther, the special remedies described below will afford the
Union “an opportunity to participate in [the] restoration
of employee rights by engaging in further organizational
efforts, if it so chooses, in an atmosphere free of further
restraint and coercion.”12
In considering whether to provide special remedies, we
note that the Board has broad discretion to fashion “just”
remedies to fit the circumstances of each case it con-
fronts.13 Further, in its remand instructions, the court
specifically instructed the Board to explain why “other
remedies [besides the bargaining order] are not ade-
quate.”14
Here, while we have found that a Gissel bargaining or-
der likely would be unenforceable in this case, we do
find the following special remedies are essential to ensur-
ing that employees may freely exercise their Section 7
rights. First, we shall order the Respondent to supply the
Union, on its request made within 1 year of this Decision
and Order, the names and addresses of its current unit
employees.15 We do not agree with our dissenting col-

9 The employees who sought representation are stagehands, many of
whom work for a variety of employers on a seasonal basis as the need
arises.
10 See fn. 2.
11 Blockbuster Pavilion v. NLRB, supra at 1080.
12 Regal Recycling, supra, (quoting United Dairy Farmers Coopera-
tive Assn., 242 NLRB 1026, 1029 (1979), enfd. in relevant part 633
F.2d 1054 (3d Cir. 1980)).
13 Maramount Corp., 317 NLRB 1035, 1037 (1995).
14 Blockbuster Pavilion, supra, 82 F.3d at 1078.
15 The Board has previously ordered this remedy in cases where it
found that remedial measures in addition to the traditional remedies for
unfair labor practices were appropriate. See, e.g., Audubon Regional
Medical Center, 331 NLRB No. 42, slip op. at 5–6 (2000); Regal Recy-
cling, Inc., supra; Comcast Cablevision of Philadelphia, 328 NLRB
487 (1999); Monfort of Colorado, 298 NLRB 73, 86 (1990), enfd. in
relevant part 965 F.2d 1538 (10th Cir. 1992); Haddon House Food
Products, 242 NLRB 1057, 1060 (1979), enfd. in relevant part sub
nom., Teamsters Local 115 v. NLRB, 640 F.2d 392 (D.C. Cir. 1981),
cert. denied 454 U.S. 827 (1981).
league’s contention that this remedy “goes too far” be-
cause it provides rights beyond those afforded by the
names and addresses rule set forth in Excelsior Under-
wear, 156 NLRB 1236 (1966). The latter rule, which is
not designed to remedy unfair labor practices, only ap-
plies at the time that an election has been agreed to or
ordered. NLRB Casehandling Manual (Part Two) Rep-
resentation Proceedings, Section 11312.1 (employer
must file list of the names and addresses of eligible vot-
ers “within 7 days after the approval of the election
agreement or 7 days after the Regional Director or the
Board has directed an election. . . .”). Our remedy is not
so limited for the quite practical reason that it is aimed at
restoring the conditions that are a necessary prelude to a
free and fair election among the Respondent’s employ-
ees. The employees’ prior organizational efforts were
aborted by the Respondent’s coercive tactics calculated
to make employees afraid to associate themselves with
the Union. If there is to be a free and fair election in the
future, the Union must mount a new organizing cam-
paign among the current employees, who, based on their
employer’s past conduct, would have reason to fear dis-
cussing unionization in the workplace. Our names and
addresses remedy “will enable the Union to contact all
employees outside the [workplace] and to present its
message in an atmosphere relatively free of restraint and
coercion.” Loray Corp., 184 NLRB 557, 559 (1970). In
this way, our remedy removes obstacles to free choice
that foreseeably result from the Respondent’s violations
and affords employees a full opportunity to exercise their
Section 7 rights.
Unlike our colleague, we do not regard our names and
addresses remedy as affording the Union an unwarranted
advantage in organizing; our remedy rather attempts to
level a playing field that has been tilted against the em-
ployees’ organizational rights by the Respondent’s nu-
merous and serious unfair labor practices. See J. P. Ste-
vens & Co. v. NLRB, 417 F.2d 533, 540–541 (5th Cir.
1969) (if the names and addresses remedy makes orga-
nizing easier, that result is appropriate where the em-
ployer’s unfair labor practices have obstructed organiz-
ing and the remedy serves to neutralize those unfair labor
practices).16

This remedy is in addition to the Union’s right to have access to a
list of voters and their addresses under Excelsior Underwear, supra, in
the event of a representation election.
16 To the extent that Decaturville Sportswear Co. v. NLRB, 406 F.2d
886, 889 (6th Cir. 1969), relied on by our colleague, is inconsistent
with our decision today, as well as the more recent Board and court
decisions, cited above, we respectfully disagree with that court’s deci-
sion. We find that the property and privacy interests invoked by that
court and our colleague are outweighed by the need to redress a serious
injury to the employees’ organizational rights by ensuring that, in the
event of a future organizing campaign, employees will be assured of a
means of communication with the union that is “insulated from dis-
criminatory reprisal” (J. P. Stevens & Co. v. NLRB, supra, 417 F.2d at
541).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
Second, we shall order the Respondent, in addition to
posting copies of the attached notice marked “Appendix”
at its Charlotte, North Carolina facility, to mail copies of
the notice to all its present employees and to all employ-
ees on its payroll since August 24, 1991, when the Re-
spondent began its unlawful conduct. As stated by our
colleague concurring with us on this point, this remedy is
particularly appropriate to the work situation of the unit
employees, who work on a seasonal basis for a variety of
employers. We note, in addition, that “[t]he mailing of
the notice will also insure that employees who are sick,
on vacation, or otherwise absent when the notice is read
will have an opportunity to be adequately informed of
the Respondent’s intention to refrain from engaging in
unfair labor practices.” Loray Corp., supra, 184 NLRB
at 558.
Third, we shall order the Respondent to convene dur-
ing working time all unit employees at its Charlotte,
North Carolina facility, and have a responsible manage-
ment official of the Respondent read the notice to em-
ployees, or at the Respondent’s option, permit a Board
agent, in the presence of a management official of the
Respondent, to read the notice to the employees. We
note that “[t]he public reading of a notice is an ‘effective
but moderate way to let in a warming wind of informa-
tion and, more important, reassurance.’”17
Fourth, we shall order the Respondent, on the Union’s
request, to grant the Union and its representatives rea-
sonable access to its bulletin boards and all places where
notices to employees are customarily kept. This remedy
will provide the employees “with reassurance that they
can learn about the benefits of union representation, and
can enlist the aid of union representatives, if they desire
to do so, without fear of” being subjected to severe unfair
labor practices.18 We do not agree with our dissenting
colleague that the numerous and serious unfair labor
practices committed by the Respondent did not affect the
employees’ ability to freely communicate with the Un-
ion. As previously discussed, the employees’ prior or-
ganizational efforts were aborted by the Respondent’s
coercive tactics calculated to make employees afraid to

17 United States Service Industries, 319 NLRB 231, 232 (1995),
enfd. 107 F.3d 923 (D.C. Cir. 1997) (quoting in part J. P. Stevens &
Co. v. NLRB, 417 F.2d at 540. Our dissenting colleague argues that
even the option of having a Board agent read the notice in the presence
of management officials is unduly demeaning to those management
officials. We disagree. As a consequence of its having been found to
have committed numerous and serious unfair labor practices, the Re-
spondent is now subject to a court-enforced remedial order that imposes
on its management officials the responsibility to ensure that the order’s
terms are honored in the workplace. Where, as here, the violations to
be remedied are numerous and serious, we think that the presence of a
responsible management official when a government official informs
employees of the terms of that remedial order is not demeaning, but
only a minimal acknowledgment of the obligations that have been
imposed by law. The employees are entitled to at least that much as-
surance that their organizational rights will be respected in the future.
18 United States Service Industries, supra, 319 NLRB at 232.
associate themselves with the Union, and if there is to be
a free and fair election in the future, the Union must
mount a new organizing campaign among the current
employees. The limited bulletin board access remedy
that we order is well designed to reduce the obstacles to
free union-employee communication that were created
by the Respondent’s prior coercive conduct. United
States Service Industries, supra, 319 NLRB at 232; Three
Sisters Sportswear Co., 312 NLRB 853, 880 (1993),
enfd. mem. 55 F.3d 684 (D.C. Cir. 1995), cert. denied
516 U.S. 1093 (1996). The limited bulletin board access
remedy also serves to offset the Respondent’s numerous
and serious unfair labor practices by reassuring the em-
ployees “that the Union has a legitimate role to play in
their decision whether to seek union representation.”19
The bulletin board access remedy discussed above shall
apply for a period of 2 years from the date of the posting
of the notice provided by the Order herein or until the
Regional Director has issued an appropriate certification
following a free and fair election, whichever comes
first.20
We emphasize that our decision is limited to the spe-
cific factual circumstances presented in this case and,
specifically, the narrow scope of the court’s remand.
Accordingly, we shall delete the Gissel bargaining order
from our original Order, and substitute the following
Order for the recommended order contained in the
judge’s supplemental decision and order.21
ORDER
The National Labor Relations Board orders that para-
graph 2(b) be deleted from the Board’s Decision and
Order reported at 314 NLRB 129 (1994).
IT IS FURTHER ORDERED that the Respondent, Charlotte
Amphitheater Corporation d/b/a Blockbuster Pavilion,
Charlotte, North Carolina, its officers, agents, successors,
and assigns, shall take the following affirmative action
necessary to effectuate the policies of the Act:
(a) On request made within 1 year of the date of this
Supplemental Decision and Order, furnish the Union
with the full names and addresses of its current unit em-
ployees.
(b) Immediately on request, for a period of 2 years
from the date on which the notice is posted or until the
Regional Director has issued an appropriate certification
following a fair and full election, whichever comes first,
grant the Union and its representatives reasonable access
to the Respondent’s bulletin boards and all places where
19 Avondale Industries, 329 NLRB 1064, 1068 fn. 15 (1999).
20 Avondale Industries, supra, 329 NLRB at 1068; United States Ser-
vice Industries, supra, 319 NLRB at 232; Three Sisters Sportswear Co.,
supra, 312 NLRB at 880.
21 It is not necessary to reaffirm our prior Order of June 27, 1994,
because, as noted above, the court of appeals, except for the bargaining
order provision, enforced it in all respects.
BLOCKBUSTER PAVILION 1277
notices are customarily posted in its Charlotte, North
Carolina facility.
(c) Within 14 days after service by the Region, post at
its Charlotte, North Carolina facility copies of the at-
tached notice marked “Appendix.”22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Mail copies of the notice to all its present employ-
ees and to all employees on the Respondent’s payroll
since August 24, 1991, when the Respondent began its
unlawful conduct.
(e) Convene all unit employees during working time at
the Respondent’s Charlotte, North Carolina facility, and
have a responsible management official of the Respon-
dent read the notice to the employees or at the Respon-
dent’s option, permit a Board agent, in the presence of a
responsible management official of the Respondent, to
read the notice to the employees. The Board shall be
afforded a reasonable opportunity to provide for the at-
tendance of a Board agent at any assembly of employees
called for the purpose of reading such notice by an offi-
cial of the Respondent.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER BRAME, concurring in part and dissenting in
part.
I agree with my colleagues that the significant length
of time—approximately 6 years—that has passed since
the Gissel bargaining order was issued in this case war-
rants reversing the judge’s recommendation, in his sup-
plemental decision, to affirm the issuance of the bargain-
ing order.1 I emphasize, too, that, as the court stated in
its remand instructions, a bargaining order is an “ex-
traordinary remedy,”2 and “in order to ensure that a bar-
gaining order is issued only in those exceptional circum-
stances that warrant it [the Board must] adequately ex-

22 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 My colleagues observe that the Board has traditionally assessed the
validity of a bargaining order based on an evaluation of the situation as
of the time the unfair labor practices were committed. Although this is
an accurate statement of the Board’s traditional approach toward bar-
gaining order cases, I find it unnecessary to pass here on its soundness.
2 Blockbuster Pavilion v. NLRB, 82 F.3d 1074, 1077 (D.C. Cir.
1996).
plain its need in each case, taking into consideration the
employees’ [S]ection 7 right to freedom of choice.”3
However, based on an independent analysis of whether
special remedies are warranted here, I can only agree that
one of the special remedies my colleagues impose on the
Respondent is justified. Although the Board has “broad
discretion”4 in fashioning remedies, they must be reme-
dial and not punitive.5 Thus, “a proposed remedy [must]
be tailored to the unfair labor practice it is intended to
redress,” and “the relief which the statute empowers the
Board to grant is to be adapted to the situation which
calls for redress.”6
Specifically, I agree with my colleagues that the Re-
spondent should be required to mail copies of the notice
to all of its present employees and to all employees on
the its payroll since August 24, 1991, when the Respon-
dent began its unlawful conduct. The unit employees are
stagehands who work on a seasonal basis for a variety of
employers. Therefore, mailing the notice to these em-
ployees who—given the seasonal and generally unpre-
dictable nature of their work may not even return to work
at the Respondent’s facility—is an appropriate remedy.
The same cannot be said for the other special remedies
my colleagues deem necessary to erase any lingering
effects of the Respondent’s unfair labor practices com-
mitted approximately 6 years ago. Consistent with the
court’s remand instruction to explain why traditional
remedies would be inadequate in this case, special reme-
dies are necessary only if it can be demonstrated that the
Board’s traditional remedies will not adequately elimi-
nate the effects of unfair labor practices and ensure a fair
election. There is no such showing here. First, the spe-
cial remedy requiring the Respondent to supply the Un-
ion, on request made within 1 year of the date of this
Supplemental Decision and Order, with the full names
and addresses of its current unit employees goes too far.
In light of the fact that an election petition is pending in
this case, under Excelsior Underwear, 156 NLRB 1236
(1966), the Respondent will be required to supply the
Union with an eligibility list containing names and ad-
dresses in the event of a representation election.7
3 Id. at 1080.
4 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984).
5 See, e.g., Consolidated Edison Co. of New York v. NLRB, 305 U.S.
197, 236 (1938).
6 Sure-Tan, Inc. v. NLRB, supra at 900 (quoting in part NLRB v.
MacKay Radio & Telegraph Co., 304 U.S. 333, 348 (1938)).
7 The NLRB Casehandling Manual (Part Two) Representation Pro-
ceedings, Sec. 11312.1 states, in pertinent part:
On approval of an election agreement . . . or on issuance of a
Direction of Election . . . the employer should be requested to
prepare a list of the full names and addresses of eligible voters as
of the last payroll period ending before the approval of the agree-
ment or the Direction of Election. The employer must file the eli-
gibility list with the Regional Director within 7 days after the ap-
proval of the election agreement or 7 days after the Regional Di-
rector or the Board has directed an election.
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
Second, the special remedy requiring the Respondent
to convene all its unit employees during working time
and have a responsible management official or a Board
agent read the notice to these employees is also unneces-
sary. The record reflects that none of the management-
level employees responsible for perpetrating the unfair
labor practices continue to work for the Respondent. So,
to the extent this extraordinary remedy serves to set a
new “corporate tone” by having a management official
present while the notice is read, we have no evidence that
a new “corporate tone” does not already exist at the Re-
spondent’s facility. Such a remedy is “unnecessarily
embarrassing and humiliating”8 to an employer regard-

If there is an issue as to an unusual eligibility date, i.e., the
use of a date other than the payroll period ending before the ap-
proval of the agreement or the Direction of the Election, because
of a current labor dispute, seasonality of operations, the pending
of the petition because of unfair labor practices, etc., the Board
agent making the election arrangements . . . or conducting the
hearing . . . should obtain the information necessary for a resolu-
tion of this issue [citations omitted].
The majority asserts that this special remedy provides information
before it becomes available pursuant to the Excelsior list. To the extent
that, as my colleagues’ argue, there is an interim period before the
provision of the Excelsior list, I find that this special remedy is unwar-
ranted. Contrary to my colleagues, unless the record establishes that
the Union possessed such a list prior to the unfair labor practices, this
remedy, instead of helping to restore the status quo, alters the status quo
ante to favor the Union. By requiring the Respondent to provide the
Union with the names and addresses of employees before such informa-
tion would be provided under Excelsior, the Union is now entitled to
information that “would normally have been unavailable at the outset of
the organizing campaign,” thus giving the Union “a substantially
greater right than it would have had originally.” Decaturville Sports-
wear Co. v. NLRB, 406 F.2d 886, 889 (6th Cir. 1969) (in light of the
employer’s severe unfair labor practices, the court approved a notice-
mailing remedy and access remedies, but refused to enforce a names
and addresses remedy). Although this special remedy seemingly has
“but one principal objective, that is, to assist the Union in its organizing
campaign to unionize the employees[,] [s]uch is not an authorized
function of the Board within the policy and intendment of the Act.” J.
P. Stevens & Co. v. NLRB, 406 F.2d 1017, 1029 (4th Cir. 1968) (Judge
Boreman, concurring in part and dissenting in part). Additionally,
requiring the Respondent to provide the Union with the names and
addresses of employees infringes on the Respondent’s property rights
and right to privacy as well as employees’ “right to privacy and free-
dom from harassment at home.” Decaturville Sportswear Co., supra,
406 F.2d at 890. Employees may find themselves exposed, as a result
of the imposition of this special remedy, to the organizing efforts of
“trained, professional organizers to contact them in the privacy of their
homes, to annoy and harass them by repeated telephone calls, personal
letters, and in other conceivable ways during a heated campaign for
union support.” J. P. Stevens & Co. v. NLRB, supra, 406 F.2d at 1030
(Judge Boreman, concurring in part and dissenting in part). Further-
more, because the Respondent’s unfair labor practices did not interfere
with the Union’s ability to communicate with employees, my col-
leagues have not sufficiently justified their imposition of this special
remedy on the Respondent.
8 NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869
(5th Cir. 1966). Cf. Conair Corp. v. NLRB, 721 F.2d 1355, 1401 (D.C.
Cir. 1983), cert. denied 467 U.S. 1241 (1984), in which then-Judge
Ginsburg, in dissenting from the majority’s decision to enforce a Board
remedy requiring a named individual to read the notice, stated that “[a]
forced, public confession of sins, even by an owner-president who has
acted outrageously, is a humiliation this court once termed incompati-
less of the fact that a Board agent will read the notice.
And, in any event, the traditional posting of the notice
requirement, in conjunction with the special mailing re-
quirement discussed above, will effectively inform em-
ployees about the Respondent’s unfair labor practices.
Finally, I find that the special remedy requiring the
Respondent immediately on request to grant the Union
and its representatives reasonable access to its bulletin
boards and all places where notices to employees are
kept is unsupportable. “In granting access as a remedial
measure . . . a burden lies upon the Board to substantiate
its conclusion that access is necessary to offset the con-
sequences of unlawful employer conduct.”9 And, “the
critical inquiry is whether the employer conduct is of
such a nature that access is needed to offset harmful ef-
fects that have been produced by that conduct. If union
access is needed to dissipate those effects, access may be
granted even though the union has alternative means of
communicating with employees.”10
Although the Respondent’s unfair labor practices were
“numerous and serious,”11 I do not believe that my col-
leagues have adequately demonstrated that the extraordi-
nary 2-year remedy granting the Union and its represen-
tatives reasonable access to the Respondent’s bulletin
boards and all places where notices to employees are
customarily posted is necessary in this case. Beyond
summarizing the coercive effects of the Respondent’s
unfair labor practices, my colleagues have not shown
how the allegedly “limited” access remedy they impose
will ameliorate these unfair labor practices, none of
which specifically obstructed the Union’s access to em-
ployees.
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.

ble with the democratic principles of the dignity of man.” (Judge Gins-
burg, dissenting in part) (internal quotation marks and citations omit-
ted). The humiliating effects of this special remedy will not be dissi-
pated merely because a Board agent may read the notice in the presence
of a management official who must stand silently by as employees
listen to the words of a notice that has already been posted in a con-
spicuous place for their examination and mailed to them.
9 Steelworkers v. NLRB, 646 F.2d 616, 639 (D.C. Cir. 1981).
10 Id. at 638.
11 Blockbuster Pavilion v. NLRB, supra, 82 F.3d at 1080.
BLOCKBUSTER PAVILION 1279
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL supply the Union, on request made within 1
year of the date of this Supplemental Decision and Order,
the full names and addresses of current unit employees.
WE WILL, immediately on request, for a period of 2
years from the date on which the notice is posted or until
the Regional Director has issued an appropriate certifica-
tion following a fair and full election, whichever comes
first, grant the Union and its representatives reasonable
access to our bulletin boards and all places where notices
to employees are customarily posted at our facility in
Charlotte, North Carolina.
WE WILL mail copies of this notice to all our present
employees and to all employees on our payroll since Au-
gust 24, 1991.
WE WILL convene during working time all unit em-
ployees at our Charlotte, North Carolina facility, and
have a responsible management official read the notice to
the employees or, at our option, permit a Board agent, in
the presence of a responsible management official, to
read this notice to the employees. The Board shall be
afforded a reasonable opportunity to provide for the at-
tendance of a Board agent at any assembly of employees
called for the purpose of reading such notice by an offi-
cial of the company.
CHARLOTTE AMPHITHEATER CORPORATION
D/B/A BLOCKBUSTER PAVILION
Jasper Brown, Esq., for the General Counsel.
Cheri A. Masdea and Ralph J. Zatkis, Esqs. (Fisher & Phillips),
of New Orleans, Louisiana, for the Respondent.
SUPPLEMENTAL DECISION
JOHN H. WEST, Administrative Law Judge. During the pe-
riod October 26 to December 3, 1992, Administrative Law
Judge Donald Holley held a hearing in this matter. That judge
issued a decision on April 28, 1993, finding that Charlotte Am-
phitheater Corporation d/b/a Blockbuster Pavilion (Respon-
dent), which owns and operates an outdoor entertainment pavil-
ion in Charlotte, North Carolina, (1) violated Section 8(a)(1) of
the National Labor Relations Act (the Act) by informing em-
ployees that they were denied work opportunities because they
engaged in union activities, by threatening employees with
discharge if they engaged in union activity, by threatening to
burn the facility before allowing the Union to represent its em-
ployees, by interrogating employees concerning their union
sentiments and the union sentiments of other employees, and by
threatening not to give work to employees who promoted the
Union, (2) violated Section 8(a)(3) and (1) of the Act by refus-
ing to call a named employee to work a show on September 12,
1991, by refusing a named employee work after July 16, 1991,
and by refusing to consider for employment during the 1992
season 20 named employees, and (3) violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain with the
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators, Local 322 (the Union) as the
exclusive representative of its employees in an appropriate unit
while engaging in serious and egregious unfair labor practices.
The judge ordered, among other things, a make-whole remedy
for the loss of earnings the named employees suffered and he
ordered Respondent at the beginning of the 1993 season to
offer immediate employment as stagehands to the 20 named
employees.
As here pertinent, Respondent filed exceptions and a motion
to reopen the record. The National Labor Relations Board (the
Board) in Blockbuster Pavilion, 314 NLRB 129 (1994),1 af-
firmed the judge’s rulings, findings, and conclusions and
adopted his recommended Order, except with respect to the
1993 season in that the Board left to the compliance stage the
determination of the manner in which the Respondent should
make whole and offer employment to the 20 former employees
it failed to consider for reemployment in 1992. The Board
ordered that Respondent make whole 22 employees for the loss
of earnings they suffered as a result of the discrimination
against them, with interest, and offer immediate employment as
stagehands to the 20 named employees. As noted above, Re-
spondent moved to reopen the record. It wanted to introduce
evidence that in 1993 it placed on its “active work roster ap-
proximately 13 of the 20 Union adherents who were identified
as bona fide s’complainants” in this case and that “over sixty
percent of the alleged discriminatees’ are now working for the
Respondent.” The Board denied the motion pointing out that it
continues to adhere to the view that the determination whether
a Gissel2 bargaining order is warranted in a given case should
be made on an evaluation of the circumstances at the time the
unfair labor practices were committed. The Board went on to
indicate that even assuming the accuracy and relevance of the
proffer, there was no reason for vacating the bargaining order
since the violations committed by Respondent were numerous,
serious, and affected a large number of employees and even if
Respondent has placed a number of the discriminatees on its
1993 work roster, that will not necessarily reassure all the em-
ployees exposed to Respondent’s strong expressions of anti-
union animus that they would not be at risk if they supported
the Union in any renewed organizing campaign. The Board
went on to point out that the proffer, without making the em-
ployees who were discriminated against whole, is hardly an
assurance to those employees that they can engage in protected
activity without suffering adverse consequences. Finally the
Board found that even assuming circumstances as represented
in the Respondent’s proffer, in the words of Gissel,3 “the possi-
bility 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 [authori-
zation] cards would, on balance, be better protected by a bar-
gaining order.”
In Blockbuster Pavilion v. NLRB, 82 F.3d 1074, 1079–1080
(D.C. Cir. 1996), the court, in its decision of April 30, 1996,
upheld the Board’s unfair labor practice findings but remanded

1 The decision was issued on June 27, 1994.
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
3 Id. at 614–615.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
the remedy part of the Board’s decision because, according to
the court, the Board failed to provide the requisite explanation
for its bargaining order. The court’s decision contains the fol-
lowing:

Circumstances . . . may change during the interval be-
tween the occurrence of the employer’s unfair labor prac-
tices and the Board’s disposition of the case. There is,
therefore, the obvious danger that a bargaining order that
is intended to vindicate the rights of past employees will
infringe upon the rights of the current ones to decide
whether they wish to be represented by a union. There-
fore, we have repeatedly instructed the Board to determine
the appropriateness of a Gissel bargaining order in light of
the circumstances existing at the time it is entered. [Cita-
tions omitted.]
. . . .
Moreover, we have insisted, and we continue to insist,
that '[b]efore we will enforce a category II order, we must
find that substantial evidence supports three findings,'
among them the finding that

the possibility of erasing the effects of past prac-
tices and of insuring a fair rerun election by the use
of traditional remedies is slight and that employee
sentiment once expressed in favor of the Union
would be better protected by a bargaining order.

Avecor, [Inc. v. N.L.R.B.] 931 F.2d [924] at 934 [(D.C.
Cir. 1991)] (quoting St. Francis Fed’n of Nurses & Health
Professionals v. NLRB, 729 F.2d 844, 854–55 (D.C. Cir.
1984). We have also emphasized that that finding must be
supported by a reasoned explanation that will enable the
reviewing court to determine from the Board’s opinion (1)
that it gave due consideration to the employees’ section 7
rights, which are, after all, one of the fundamental pur-
poses of the Act, (2) why it concluded that other purposes
must override the rights of employees to choose their bar-
gaining representatives and (3) why other remedies, less
destructive of employees’ rights, are not adequate.
Peoples Gas System, 629 F.2d [35] at 46 [(D.C. Cir.
1980)].
. . . .
We have repeatedly called the Board to task for its intran-
sigent refusal to accept and act upon our instructions that
the appropriateness of a bargaining order must be assessed
as of the time it is issued. See, e.g. Avecor, 931 F.2d at
936–937; Pedro’s, Inc., 652 F.2d [1005] at 1012 (D.C. Cir
1981)]
. . . .
We do not question that the Company’s unfair labor
practices were numerous and serious; nor do we doubt that
the mere reinstatement of the discriminatees might be in-
sufficient to erase the effects of Blockbuster’s anti-Union
actions. The Board, however, has given no indication that
it has taken the employees’ section 7 rights into considera-
tion. Nor has it explained why the requirement that the
Company reinstate the unlawfully discharged employees
with back pay, when combined with the other traditional
remedies at its disposal, are not enough to mitigate the ef-
fects of Blockbuster’s actions.
. . . .
III. CONCLUSION
We affirm the Board’s substantive conclusions and en-
force the Board’s remedial order insofar as it requires the
Company to cease and desist all unfair labor practices, to
post notices, and to make whole and offer employment to
the individuals named in the Decision and Order. Never-
theless, in order to ensure that a bargaining order is issued
only in those exceptional cases that warrant it, we insist
that the Board adequately explain its need in each case,
taking into consideration the employees’ section 7 right to
freedom of choice. The Board having failed in this obliga-
tion, we remand the case to the Board to consider whether
the use of its traditional remedies would be adequate to
ensure a fair election. Furthermore, if the Board is still in-
clined to issue a bargaining order, the order must be justi-
fied at the time of its issuance. The Board is instructed to
allow Blockbuster to proffer any evidence that the passage
of time or a change in circumstances might mitigate the
need for one. [Emphasis added.]

By Order dated February 4, 1997, the Board indicated that it
had accepted the court’s remand and that the Charging Party
and the Respondent had filed position statements with the
Board. The Board ordered the record in this proceeding to be
reopened and directed that a further hearing be held for the
purpose of taking evidence in accord with the court’s remand.
The remand hearing was held in Charlotte on May 15 and
16, 1997. On the second day the hearing was continued to
allow counsel for the General Counsel to seek subpoena en-
forcement before a U.S. District Court regarding a subpoena
Respondent had served on its former stage manager, Calvin
Hunter. Counsel for the General Counsel filed a motion to
close hearing, dated May 29, 1997, indicating that the parties
agreed that the record should be closed and a date set for the
receipt of briefs; and that upon being instructed to file a motion
to close the hearing, counsel for Respondent advised that he
had no objection to the filing of the motion. After the period
for filing a reply to the motion had passed, an order was issued
on June 20, 1997, which order indicates that no objections had
been received, and grants the motion. On the entire record thus
made, including my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by the
General Counsel and the Respondent on July 25, 1997, I make
the following.
FINDINGS OF FACT
Respondent called two witnesses on the first day of the fur-
ther hearing. Robert Klaus testified that he works for Pavilion
Partners; that at the time of the remand hearing here he had two
titles, viz, executive director at Walnut Creek Amphitheater in
Raleigh, North Carolina, and regional vice president for Pace
Facilities Group in the southeastern United States; that when
the Blockbuster Pavilion opened in 1991 he was not employed
by it in Charlotte at the time; that he did know that in 1991
Blockbuster Pavilion in Charlotte was owned by Charlotte Am-
phitheater Corporation which was a subsidiary of Blockbuster
Entertainment; that Charlotte Amphitheater Corporation oper-
ated Blockbuster Pavilion through the fall of 1993; that in No-
vember 1993 Pavilion Partners began operating the facility and
its ownership group are subsidiaries of Pace Entertainment,
Sony Music, and Viacom Entertainment; that ownership of the
Blockbuster Pavilion changed in April 1994 when the facility
was acquired by Pavilion Partners; that the managing partner of
BLOCKBUSTER PAVILION 1281
the Pavilion Partners is the Pace Facilities group and as man-
ager at the facility he reported to the Pace Facilities Group; that
Pace Facilities Group managed Blockbuster Pavilion beginning
in November 1993; that in November 1993 he became the gen-
eral manager with Blockbuster Pavilion; that Rusty Johnson,
and Jim Doyle, the former general manager and the director of
marketing, respectively, of Blockbuster Pavilion were released;
that Production Manager Jerry Duncan was replaced by Bob
Morel in March 1994; that Shaun McKinney and Jack Painter
have not worked at Blockbuster Pavilion since he started work-
ing there; that in November 1993 or in the first 6 months of
1994 people who had not worked previously at the facility were
brought in to be sales director, director of marketing, director of
operations, director of finance, and box office manager; that in
1994 they had two events staff managers, namely Bill Tullick
until about July 1994 and then Mary Kegley, who had previ-
ously held part-time positions as an usher and a volunteer coor-
dinator at Blockbuster Pavilion at Charlotte; that in March 1994
Nina Pearson was hired as community affairs manager for the
Blockbuster Pavilion in Charlotte; that Pearson had previously
been the box office manager and the manager of ushers at
Blockbuster Pavilion and in those positions she did not have
any role in hiring or supervising stagehands; that Respondent’s
Exhibit 1 are the applications of persons interested in working
in the stage crew department in 1993; that Respondent’s Exhib-
its 2, 3, 4, 5, and 6 are the show call reports, which are listings
of stagehands who worked individual productions and a tally of
their hours for each production, from 1993 through the first
productions of the 1997 season, respectively, at Blockbuster
Pavilion; that Respondent’s Exhibit 7 is a roster of stagehands
from the 1991 season at the facility; that Respondent’s Exhibit
8 is a summary of the 1993 applications that were in Respon-
dent’s records and it shows that 23 employees from the 1991
season presented applications for the 1993 season, 14 of the 23
had signed union authorization cards, 8 were found to be dis-
criminatees in the underlying Board proceeding and 21 percent
of the 1993 applications were from persons who worked at the
facility in 1991; that Respondent’s Exhibit 9 is a summary of
the employees who worked as stage crew in the 1993 season
and it shows that 18 of the people who worked at the facility in
1991 worked there in 1993, 6 were found to be discriminatees
in the prior Board proceeding, 9 were card signers, there was a
total of 84 on the stage crew and 21 percent of the 1993 stage-
hands worked at the facility in 1991; that 22 shows were held in
1993; that as Production Manager Morel is responsible for all
elements of the production, including the supervision of stage-
hands through the stage manager; that Blockbuster Pavilion in
1994 hired Hunter, who he—Klaus—thought was in the Union
at the time, to be stage manager; that Hunter’s responsibilities
were to recruit the stage crew for that years productions, as-
semble a roster, evaluate the experience of the stagehands, and
then on an event-by-event basis call them and schedule them
for work once he was directed by the production manager re-
garding the number of stagehands needed for an individual
production; that the stagehands reported to Hunter when they
came to work and Hunter prepared the show call reports; that
Hunter monitored the stagehands’ performance and based on
input or direction from the touring group or Morel he would
make assignments; that Hunter telephoned the stagehands to
tell them to report to work and what they would be doing; that
he told Hunter with respect to hiring that they wanted an ex-
perienced crew and to recruit in an open and fair manner with
no restrictions; that Hunter decided the people who would be
called for work with availability factored in; that Hunter was
told that on his job assignments at other facilities in the Char-
lotte area he should tell union members that he came in contact
with that Respondent had a “welcome and open invitation to
Union members to come and apply”; that Respondent also or-
ganized a job fair in March 1994 to publicize the beginning of
the hiring process for all seasonal positions at the facility; that
Respondent’s Exhibit 10 are the flyers, etc., advertising the job
fair; that Respondent’s Exhibit 11 is a summary he personally
prepared in July 1994 to check whether the 1991 and 1992
discriminatees were part of Respondent’s stage crew and to
confirm that Respondent had an open and well publicized effort
and that Respondent “had welcomed back all stagehands in the
community including IATSE members”; that he told Morel to
contact the persons listed on Respondent’s Exhibit 11 and Mo-
rel discussed it with Hunter and based on Hunter’s notes and
discussions he had with Hunter, he—Klaus—prepared Respon-
dent’s Exhibit 11;4 that Respondent’s Exhibit 12 are the appli-
cations and employment records from the stage crew in the
1994 season; that Respondent’s Exhibit 13 is a three-page sum-
mary of the 1994 employment applications showing that 144
individuals applied, 13 were discriminates, and 23 were on the
1991 roster for the facility; that Respondent’s Exhibit 14 is a
listing of all the stage crew personnel that worked in the 1994
season at the Pavilion and it shows that 131 stagehands were
employed at the facility in 1994, 14 were discriminatees identi-
fied by the Board, 29 had worked at the facility in 1991 and 21
of those were card signers; that during the 1994 season Morel
kept an office and regular office hours at the facility and he
would start the application process for walk in applicants and
send the applicants to Hunter; that to recruit stagehands in 1995
and 1996, applications were kept in the front administration
lobby and the applicants were sent to Hunter; that while in 1995
and 1996 Hunter was responsible for assembling Respondent’s
stage crew, Respondent did not have a stage manager in 1995
and 1996; that Respondent used Hunter in 1995 and 1996 to
recruit stagehands because he was providing stagehands at
other facilities and Respondent believed that Hunter could as-
semble a more experienced and larger stage crew for the events
it had coming; that in 1995 and 1996 Hunter organized the
crew, set the show calls, made the telephone calls to the stage
crew and he supervised the crew under the direction of Morel,
who, among other things, set the hours of the stagehands; that
Hunter told him and Morel at an early point in the 1995 season
that he, Hunter, had a conversation with officials with IATSE
Local 322 and he, Hunter, was no longer able to recruit union
members to be part of Respondent’s stage crew because they
were being prohibited from returning for work at the Pavilion;5
that in 1995 some management positions were filled and only
one of those chosen to occupy these positions worked at the in
1991–1993, namely Alan Barnhardt, who became assistant box
office manager and previously was a ticket taker; that Respon-
dent’s Exhibit 15 is a roster of stage crew members for the
1995 season which shows that there were a total of 129 stage-

4 The exhibit lists 21 names and various things specified under the
column heading “Status.” The following appears next to the name of
Bruce Grier: “Contacted but not interested, is current IATSE book-
keeper.”
5 This testimony was elicited after one of counsel for Respondent in-
dicated “[w]e’re going to present Mr. Hunter tomorrow to testify about
what [the] actual conversation was about.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
hands employed in 1995, 7 of those had worked at the facility
in 1991, 1 was a discriminatee identified by the Board, and 4
were card signers; that in 1996 some of the management posi-
tions at the facility were restaffed; that Hunter was primarily
responsible for recruiting stagehands in 1996 and he was the
person who was scheduling and making the calls to stagehands
to work at the Pavilion in 1996; that in 1996 Hunter recruited
stagehands in that “he was very active at other facilities so he
travelled in production circles and . . . I think he had an ongo-
ing recruitment effort”; that in 1996 Respondent also continued
to distribute applications from its administrative office and it
would forward those people to Hunter; that Respondent’s Ex-
hibit 16 is a roster of stage crew members from the 1996 season
which shows that 157 stagehands were employed by Respon-
dent in 1996, 1 was a discriminatee identified by the Board, 10
had worked at the facility in 1991, and 4 were card signers; that
in 1997 there were management changes at the facility with
respect to the positions of executive director, director of mar-
keting, box office manager, and Respondent created the posi-
tion of regional director of marketing; that Respondent’s Ex-
hibit 17 is a turnover analysis among the stagehands for the
1994–1996 seasons which shows that 75, 61, and 70 percent of
the stagehands, respectively, were new; that Respondent’s Ex-
hibit 18 is a turnover analysis among the seasonal or part-time
event staff for the 1997 and 1996 seasons which shows that 53
and 62 percent of these, respectively, were new; that with the
first event of the 1997 season Respondent entered into a service
agreement with TBA which is responsible for assembling the
stage crew at the Pavilion for the 1997 season and providing a
stage manager, D. J. White; that White does not call the stage-
hands but rather Genene Edwards calls the stagehands to see if
they are available to work and she puts the roster together for
individual productions; that Edwards has worked for Respon-
dent since 1991 holding such positions as parking staff, usher,
production assistant, and administrative assistant; that Edwards
serves as a part-time production assistant on event days; that
Respondent held a job fair in March 1997 to, as here pertinent,
recruit stagehands; that Respondent’s Exhibit 19 are documents
which relate to the 1997 job fair and the recruitment of stage-
hands for the 1997 season; that Respondent recruits for all posi-
tions on an ongoing basis; that Respondent’s Exhibit 20 is a list
of individuals who worked as part of the stage crew for the first
three productions of the 1997 season which shows that a total
of 57 stagehands were employed, none were the discriminatees
identified by the Board, 2 were formerly on the 1991 roster at
the facility, and 2 were card signers; that Respondent’s Exhibit
21 is a list of 21 discriminatees and it charts their participation
in show calls from 1993 through 1997;6 that Respondent’s Ex-
hibit 22 is a list of card signers which shows the number of
shows worked for the seasons 1993 through 1997 at the Pavil-
ion; and that Respondent attempts to comply with the court
order concerning the reinstatement of certain 1991 employees

have included on a season to season basis, having an on-
going, open application process. A process that literally
continues from the beginning of the job fair through the
entire season. We also have, through personal contacts
such as Calvin Hunter and Bob Morel, sought to commu-
nicate to Union members in the community and, you

6 The evidence shows 6 discriminatees worked shows in 1993, 14
worked shows in 1994, 1 worked shows in 1995 and 1996, and none
worked shows in 1997.
know, experienced stagehands in general our openness and
the interest that we have in them being part of out stage
crew at the Pavilion.

Klaus also testified that Blockbuster Pavilion is willing to offer
reinstatement to the discriminatees in connection with the 1997
season. On cross-examination Klaus testified that in 1991 and
1992 Blockbuster Pavilion was owned by Charlotte Amphithea-
ter which was owned by a company called Amphitheater Enter-
tainment which was a subsidiary of Blockbuster Entertainment;
that presently Pavilion Partners is the owner of the facility; that
Blockbuster Entertainment was purchased by Viacom and Via-
com is one of the owners of Pavilion Partners; that Blockbuster
Entertainment remains a viable corporation which is owned by
Viacom; that the change in ownership of the facility involved
an exchange of assets between Pace Entertainment, Sony Mu-
sic, and Blockbuster Entertainment in that each of the groups
had an interest in Amphitheaters across the country and they
combined the group to form Pavilion Partners; that none of the
managers from the 1991–1992 season at the facility remain
with the employer at the present time; that he did not send the
Union any correspondence inviting it to attend the job fairs in
1994 through 1997; that in April 1995 Hunter told him that the
Union instructed its members not to apply in 1995 and 1996;
that Hunter did not tell him who in the Union told Hunter this;
that he could not comment one way or the other about fact that
the Respondent’s records show that Carl Welsh, a union mem-
ber, did apply and work for the Company in 1995 and in 1996;
that after the 1994 season only one employee who was an
original discriminatee actually worked for the Company; that
Respondent’s attempts to hire any of the other discriminatees
were purely through having an open application process and a
well publicized hiring event; that while Respondent stands
ready to offer reinstatement to the alleged discriminatees, it has
not make an official offer of reemployment through the Union
or to the alleged discriminatees; and that Respondent has not
made any offers of backpay. Subsequently Klaus testified that
Respondent’s Exhibit 21 is the best synopsis of Respondent’s
efforts to contact the 21 discriminatees regarding their rein-
statement and he prepared that exhibit based on discussions
with Hunter.
Morel testified that he was hired by Klaus in spring 1994 as
seasonal production manager and held that position when he
testified here; that prior to 1994 he was an independent produc-
tion manager for several major promoters around the southeast
and he had no prior relationship with Blockbuster Pavilion or
Charlotte Amphitheater; that he received numerous stage hand
applications after the 1994 job fair and the application process
goes on year round; that he saw members of IATSE Local 322
at other auditoriums in 1994–1996 and he told them to come
out to the Blockbuster Pavilion because he could always use
good experienced help, “come on out an apply for a job and
we'll put you on”; that with respect to hiring members of Local
322, he told Hunter to get them to come out and work for us we
could use all the good help we could get; that on average 18 to
20 stagehands work a show; that applications for stagehands
were solicited at a 1997 job fair at Blockbuster Pavilion; that
applications for stagehand jobs were accepted after the job fair;
and that Respondent’s Exhibit 23 is a roster of the 1997 stage-
hands which Edwards and White, who makes some calls, use to
make calls when they pick out people to come to work and it
shows that five of the people were also on the 1991 roster, three
BLOCKBUSTER PAVILION 1283
signed cards and none of the discriminatees identified by the
Board are on the list. On cross-examination Morel testified that
he could not remember any particular person that he spoke with
at other auditoriums about applying at Blockbuster Pavilion, he
spoke “just in general to everybody”; that he did not send a
letter to the Union about the job fair; and that he believed that
the average show in 1991–1992 would use about 20 stage-
hands.
On the second day of the hearing Respondent called Klaus to
testify about the matter of subpoenaing Hunter, Respondent’s
Exhibits 24 and 25. Respondent also called the business agent
for Local 322, Bruce Grier, who testified that Hunter was ex-
pelled from the Union because he supplied crews at the Char-
lotte Convention Center where the Union supplies crews, with-
out the Union’s knowledge and “behind . . . [its] back”; that a
charge was filed against Hunter in April 1995; that he has been
a member of the Union for 7 years and he worked at Block-
buster Pavilion in 1991 but not after that; that he encouraged
members to work for Blockbuster Pavilion during the period
1993–1997; that neither he nor any other officer or member of
Local 322 spoke with members of Local 322 to discourage
them from working at Blockbuster Pavilion; that there was a
membership discussion about working or not working at Block-
buster Pavilion during the period 1993–1997; that when this
topic was discussed in 1994 under general business he was
present and the understanding was that union members would
go out to Blockbuster Pavilion and seek employment; that he
was aware of the 1994 job fair at Blockbuster Pavilion; that he
was aware that there was a change in ownership of Blockbuster
Pavilion in 1994 and Pace Management has been operating the
facility since 1994; and that in July 1994 he wrote Klaus, Gen-
eral Counsel’s Exhibit 3, seeking full compliance with the
Board’s Order in this proceeding but there has no compliance.
On cross-examination Grier testified the Union was not notified
by Respondent about the job fairs; that he was not requested to
attend these job fairs; that with respect to Respondent’s Exhibit
11, which purports to be a status sheet on the 21 discriminatees,
while, as indicated above, the sheet indicates “Bruce Grier
Contacted but not interested, is current IATSE bookkeeper,” he
never told anyone from the Respondent that he was not inter-
ested and he was never called for a specific job since 1991; that
neither he nor any other union official ever told Hunter or made
a statement to the effect that the union members were not al-
lowed to apply with Blockbuster Pavilion; and that most of the
discriminatees are still in the Charlotte area and are available
for work.
Contentions
On brief Respondent contends that the General Counsel has
not produced any evidence as to what effects, if any, remain
from Respondent’s past practices so as to render the possibility
of ensuring a “fair rerun election” to be only slight;7 that the
General Counsel has given no explanation as to why, in light of
the new ownership, management, and work force, traditional
remedies are not adequate to ensure that a “fair rerun election”
may be held; that present conditions at the Pavilion ensure the
possibility of a “fair rerun election” and do not justify an in-
fringement on the self-determination rights of the present work
force; that traditional remedies are adequate to ensure a “fair
rerun election” under present conditions at the Pavilion; that a

7 R. Br. 10.
substantial time has elapsed since the unfair labor practices
were committed; that Charlotte Amphitheater no longer has any
ownership in the Pavilion; that the managers employed at the
time the unfair labor practices occurred are no longer employed
at the Pavilion; that the stagehands employed when the unfair
labor practices were allegedly committed are no longer working
at the Pavilion; and that a bargaining order will unnecessarily
disenfranchise the current work force and impinge on its right
of self-determination.
The General Counsel, on brief, argues that the statement that
Klaus attributes to Hunter as a reason for Respondent’s failure
to hire union members is implausible for several reasons,
namely Klaus could not identify which union official made the
statement, Klaus did not attempt to verify the statement with
the Union, Grier denied that he or any other union official ever
made the statement or that the Union discouraged its members
form working for the Respondent, Morel did not corroborate
Klaus and Respondent failed to produce Hunter to testify; that
in these circumstances a finding is required that if Hunter had
been called to testify by Respondent his testimony would have
been adverse to its case; that Repondent’s failure to produce
Hunter and the failure of Morel to corroborate Klaus on this
crucial issue warrants a finding that Klaus’ testimony is unreli-
able and, therefore, not credible; that Klaus’ assertion that he
attempted to comply with the court’s order is further called into
question by his admission that Respondent failed to notify the
Union concerning its job fairs and it has failed to offer rein-
statement or backpay to the Union or any of the discriminatees;
that Respondent has made no affirmative effort to comply with
the Board or court orders in this matter; that with respect to
changes in management, the evidence reflects that with the
hiring of Hunter as stage manager, Respondent has continued
with the same course of conduct as it did during the 1991 and
1992 seasons; that we have Klaus testifying about a status sheet
regarding the discriminatees, indicating that he was relying on
what he was told by Hunter, when the status sheet indicates one
thing about Grier and Grier testifies the entry is not true; that
while the unit has expanded some, the evidence reflects that the
expansion is due to the increase of the number of shows per
season and Respondent continues to hire the same number of
stagehands per show as it did in 1991 and 1992; that the pas-
sage of time in this case, to a large extent, can be attributed to
the normal course of litigation and thus should not result in a
benefit to the Respondent which is the wrongdoer; that more-
over, the Board has long held that the mere passage of time
does not negate the need for a bargaining order, where the em-
ployer has engaged in numerous and serious misconduct which
has affected a large number of employees as has been found
here, Highland Plastics, 256 NLRB 146 (1981); that with re-
spect to changes in the composition of the bargaining unit, the
evidence indicates that in 1995 and 1996 Respondent hired only
1 discriminatee each year, in 1997 Respondent has failed to hire
a single discriminatee and, therefore, the evidence shows that
Respondent has continued the same pattern of unlawful conduct
it engaged in during 1991 and 1992; that the Board in its Deci-
sion indicated “the asserted fact that the Respondent 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 in protected activity without suffering adverse
consequences”; that Respondent admits that it has not even
offered to make any of the discriminatees whole for its unfair
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
labor practice violations; that the concern expressed by the
court regarding the possibility that disapproval of the Union by
the one who calls the stagehands listed on the roster would
stifle union activities and interfere with a fair election were
realized with Respondent hiring only 1 discriminatee during the
past two and one-half seasons and its admitted failure to make
whole the 20 discriminatees; that with respect to employee
turnover, it should be noted that the turnover has been caused
by the unfair labor practices that are sought to be remedied
herein; that Respondent cannot rely on vacancies created by its
own refusal to recall 20 discriminatees; that as pointed out by
Judge Holley Respondent “replaced the 1991 stagehand crew
lock, stock and barrel in 1992” and it now seeks to benefit from
its past misconduct; and that it would defy reason to permit an
employer to deflect a Gissel bargaining order on the grounds of
employee turnover when the turnover has resulted from the
Employer’s unlawful discharges and its unlawful refusal to
recall a substantial portion of the unit.
Analysis
In my opinion a bargaining order should issue in this case.
The first area of concern expressed by the court in this pro-
ceeding is summarized by it in Blockbuster Pavilion v. NLRB,
82 F.3d 1074 at 1078 of its opinion where it indicates:

There is, therefore, the obvious danger that a bargaining
order that is intended to vindicate the rights of past em-
ployees will infringe upon the rights of current ones to de-
cide whether they wish to be represented by a union.

Id. at 1077 and 1078 the court indicates:

While a bargaining order may be imposed in order to deter
employer misconduct, the Court [in NLRB v.Gissel Pack-
ing Co., 395 U.S. 575 (1969)] emphasized that in a cata-
gory II case, “effectuating ascertainable employee free
choice becomes as important a goal as deterring employer
misbehavior.” Id. at 614, 89 S.Ct. at 1940.

The full sentence in Gissel, supra at 614, from which this lan-
guage is quoted reads:

The Board’s authority to issue such an order on a lesser
showing of employer misconduct is appropriate, we
should reemphasize, where there is also a showing that at
one point the union had a majority; in such a case, of
course, effectuating ascertainable employee free choice
becomes as important a goal as deterring employer misbe-
havior.

The “ascertainable employee free choice” the Court was refer-
ring to in this language in Gissel, supra, was the showing that at
one point the union had a majority. In Gissel, supra at 611,
612, and 613 the following appears:

The employers argue that . . . the bargaining order is an
unnecessarily harsh remedy that needlessly prejudices em-
ployees’ section 7 rights solely for the purpose of punish-
ing or restraining an employer. Such an argument ignores
that a bargaining order is designed as much to remedy past
election damage32 as it is to deter future misconduct. If an
employer has succeeded in undermining a union’s strength
and destroying the laboratory conditions necessary for a
fair election, he may see no need to violate a cease-and-
desist order by further unlawful activity. The damage will
have been done, and perhaps the only fair way to effectu-
ate employee rights is to re-establish the conditions as they
existed before the employer’s unlawful campaign.33 There
is, after all, nothing permanent in a bargaining order, and
if, after the effects of the employer’s acts have worn off,
the employees clearly desire to disavow the union, they
can do so by filing a representation petition.
__________
32 The employers argue that the Forth Circuit correctly ob-
served that, “'in the great majority of cases, a cease-and-desist or-
der with the posting of appropriate notices will eliminate any un-
due influences upon employees voting in the security of anonym-
ity” NLRB v. Logan Packing Co., 386 F.2d at 570. It is for the
Board and not the courts, however, to make that determination,
based on its expert estimate as to the effects on the election proc-
ess of unfair labor practices of varying intensity. In fashioning its
remedies under broad provisions of section 10(c) of the Act (29
U.S.C. section 160(c)), the Board draws on a fund of knowledge
and expertise all its own, and its choice of remedy must therefore
be given special respect by reviewing courts. See Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). “[I]t is
usually better to minimize the opportunity for reviewing courts to
substitute their discretion for that of the agency.” Consolo v.
FMC, 383 U.S. 607, 621 (1966).
33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. See Lesnick, [Establishment
of Bargaining Rights Without an NLRB Election, 65 Mich. L
.Rev. 851, 861–862 (1967)] supra, n. 17, at 862. Any effect will
be minimal at best, however, for there “is every reason for the un-
ion to negotiate a contract that will satisfy the majority, for the
union will surely realize that it must win the support of the em-
ployees, in the face of a hostile employer, in order to survive the
threat of a decertification election after a year has passed.” Bok,
The Regulation of Campaign Tactics in Representation Elections
Under The National Labor Relations Act, 78 Harv. L. Rev. 38,
135 (1964).
In Intersweet, Inc., 321 NLRB 1 (1996), the Board indicated.
The Respondent contends the changed circumstances
since the time of the events at issue render a bargaining
order inappropriate. We disagree. Our well-established
rule is hat the validity of a bargaining order depends on an
evaluation of the circumstances as of the time the unfair
labor practices were committed. Yerger Trucking, 307
NLRB 567 (1992). The Board adheres to this position
largely on the grounds that consideration of changed cir-
cumstances after the unfair labor practices were committed
would reward, rather than deter, an employer who engaged
in unlawful conduct during an organizational campaign.
Highland Plastics, 256 NLRB 146, 147 (1981). This ra-
tional is particularly applicable here, where the Respon-
dent reacted to the first hint of a union campaign by termi-
nating the entire bargaining unit and failing to recall most
of the union supporters. In addition, regardless of changed
circumstances, a bargaining order in reality has a minimal
effect on employee free choice, because employees are free
to reject continued union representation after a reason-
able period has elapsed even if a bargaining order has
been imposed. [So the United States Supreme Court and
the Board apprecriate this fact.] See Poole Foundry &
Machine Co., 95 NLRB 34, 36 (1951), enfd. 192 F.2d 740,
BLOCKBUSTER PAVILION 1285
742 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952).
[Emphasis added.]8

Anyone reviewing the facts of a case such as this one should
be careful in giving too much weight to turnover because it is
very easy for the employer to manipulate. Here the Employer
practically replaces the crew lock, stock, and barrel, and refuses
to reinstate employees notwithstanding a court order directing it
to so. Expressions of a willingness to do something but not
doing it although directed to amount, in my opinion, not just to
a failure but a refusal. Hunter did not testify so Grier’s testi-
mony is not challenged. Grier was not contacted.9 And Klaus’
testimony about what Hunter told him about what the Union
told Hunter is not credited since contrary to what Respondent
stated at the hearing here, it did not take those actions which
would have had Hunter testify here. Also Morel did not cor-
roborate Klaus, Grier, a credible witness, denied this assertion,
and a union member did work for Respondent during the time
in question. So with respect to the rights of employees to de-
cide whether they wish to be represented, we have the United
States Supreme Court entertaining this argument, made there by
employers, and concluding that this is nothing to be concerned
about because the practicalities of the situation will themselves
resolve that matter. In Gissel, supra, the Court was concerned
with whether the union had a majority. Here no one contests
that the Union had a majority. Here we have Respondent ma-
nipulating turnover and it is now arguing that the turnover
(which it manipulated) should be relied on to grant it the relief
it seeks both in terms of the Section 7 rights of the current em-
ployees and in terms of an alleged lack of awareness on the part
of the current employees regarding the numerous and serious
unfair labor practices. In view of Gissel and in view of Re-
spondent’s manipulation of the turnover, I could not and I
would not rely on such an argument. There is no infringement
on the rights of current employees many of whom would not be
current employees if Respondent had acted lawfully and if Re-
spondent had not manipulated turnover.
The next area of concern expressed by the court in Block-
buster Pavilion v. NLRB, 82 F.3d 1074 at 1080, of its opinion
here is whether substantial evidence supports a finding that
the possibility of erasing the effects of past practices and
of insuring a fair rerun election by the use of traditional
remedies is slight and that employee sentiment once ex-
pressed in favor of the Union would be better protected by
a bargaining order.
Avecor, [Inc. v. N.L.R.B.] 931 F.2d [924] at 934 [(D.C.
Cir. 1991)] (quoting St. Francis Fed’n of Nurses & Health
Professionals v. NLRB, 729 F.2d 844, 854–855 (D.C. Cir.
1984).
To a degree, the court itself supplies an answer to this concern
when id. at 1080 it indicates:
We do not question that the Company’s unfair labor
practices were numerous and serious; nor do we doubt that

8 In the instant proceeding Respondent did not terminate the entire
bargaining unit but as indicated by Judge Holley, Respondent practi-
cally replaced the 1991 stagehand crew lock, stock, and barrel in 1992.
9 R. Exh. 11 allegedly was based on what Hunter told Klaus. Hunter
did not testify. Grier’s testimony is credited. Grier impressed me as
being a credible witness. R. Exh. 11, except to the extent that it is
supported by other reliable evidence of record, i.e., the show call re-
ports, will not be given any weight.
the mere reinstatement of the discriminatees might be in-
sufficient to erase the effects of Blockbuster’s antiunion
actions. The Board, however, has given no indication that
it has taken the employees’ section 7 rights into considera-
tion. Nor has it explained why the requirement that the
Company reinstate the unlawfully discharged employees
with back pay, when combined with the other traditional
remedies at its disposal, are not enough to mitigate the ef-
fects of Blockbuster’s actions.
The employees’ Section 7 rights have been considered above.
Since the Respondent refuses to reinstate the discriminatees and
since the Respondent refuses to give the discriminatees the
backpay they are owed, this requirement by both the Board and
the court here has, until contempt proceedings are initiated,
become meaningless, except for the message Respondent is
sending to the current employees, viz, that it will “thumb its
nose” at both the Board and the courts, that it will refuse to
comply with their lawful orders—unless and until it is forced
to—to keep active union supporters from being reinstated and
receiving the backpay to which they are entitled. This is a
strong message and Respondent, in my opinion, fully appreci-
ates this.
Also as indicated in Gissel, supra at 614 and 615:

If the Board finds that the possibility of erasing the effects
of past practices and of ensuring a fair election . . . by the
use of traditional remedies, though present, is slight and
that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining or-
der, then such an order should issue [see fn. 32, supra].

Footnote 32 is set forth above. In the circumstances extant here
it bears repeating. It reads as follows:

32 The employers argue that the Forth Circuit correctly ob-
served that, “in the great majority of cases, a cease and desist or-
der with the posting of appropriate notices will eliminate any un-
due influences upon employees voting in the ecurity of anonym-
ity.” NLRB v. Logan Packing Co., 386 F.2d at 570. It is for the
Board and not the courts, however, to make that determination,
based on its expert estimate as to the effects on the election proc-
ess of unfair labor practices of varying intensity. In fashioning its
remedies under broad provisions of section 10(c) of the Act (29
U.S.C. section 160(c)), the Board draws on a fund of knowledge
and expertise all its own, and its choice of remedy must therefore
be given special respect by reviewing courts. See Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). “[I]t is usu-
ally better to minimize the opportunity for reviewing courts to
substitute their discretion for that of the agency.” Consolo v.
FMC, 383 U.S. 607, 621 (1966).

The next concern expressed by the court here, Blockbuster
Pavilion, supra at 1078, is as follows:

We have also emphasized that that finding [that the
possibility of erasing the effects of past practices and of
insuring a fair . . . election by the use of traditional reme-
dies is slight and that employee sentiment once expressed
in favor of the Union would be better protected by a bar-
gaining order] must be supported by a reasoned explana-
tion that will enable the reviewing court
to determine from the Board’s opinion (1) that it gave
due consideration to the employees’ section 7 rights,
which are, after all, one of the fundamental purposes of
the Act, (2) why it concluded that other purposes must
override the rights of employees to choose their bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
gaining representatives and (3) why other remedies,
less destructive of employees’ rights, are not adequate.

As noted above, the employees’ Section 7 rights have been duly
considered. The Court in Gissel, supra, spoke to the concern of
the court here as set forth in “(2)” in the immediately preceding
paragraph when it stated at 395 U.S. 612 and 613, as set forth
above:

The employers argue that . . . the bargaining order is an
unnecessarily harsh remedy that needlessly prejudices em-
ployees’ section 7 rights solely for the purpose of punish-
ing or restraining an employer. Such an argument ignores
that a bargaining order is designed as much to remedy past
election damage32 as it is to deter future misconduct. If an
employer has succeeded in undermining a union’s strength
and destroying the laboratory conditions necessary for a
fair election, he may see no need to violate a cease-and-
desist order by further unlawful activity. The damage will
have been done, and perhaps the only fair way to effectu-
ate employee rights is to re-establish the conditions as they
existed before the employer’s unlawful campaign.33 There
is, after all, nothing permanent in a bargaining order, and
if, after the effects of the employer’s acts have worn off,
the employees clearly desire to disavow the union, they
can do so by filing a representation petition.
__________
32 The employers argue that the Forth Circuit correctly ob-
served that, “'in the great majority of cases, a cease-and-desist or-
der with the posting of appropriate notices will eliminate any un-
due influences upon employees voting in the security of anonym-
ity” NLRB v. Logan Packing Co., 386 F.2d at 570. It is for the
Board and not the courts, however, to make that determination,
based on its expert estimate as to the effects on the election proc-
ess of unfair labor practices of varying intensity. In fashioning its
remedies under broad provisions of section 10(c) of the Act (29
U.S.C. section 160(c)), the Board draws on a fund of knowledge
and expertise all its own, and its choice of remedy must therefore
be given special respect by reviewing courts. See Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). “[I]t is
usually better to minimize the opportunity for reviewing courts to
substitute their discretion for that of the agency.” Consolo v.
FMC, 383 U.S. 607, 621 (1966).
33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. See Lesnick, [Establishment
of Bargaining Rights Without an NLRB Election, 65 Mich. L.
Rev. 851, 861–862 (1967)] supra, n. 17, at 862. Any effect will
be minimal at best, however, for there “is every reason for the un-
ion to negotiate a contract that will satisfy the majority, for the
union will surely realize that it must win the support of the em-
ployees, in the face of a hostile employer, in order to survive the
threat of a decertification election after a year has passed.” Bok,
The Regulation of Campaign Tactics in Representation Elections
Under The National Labor Relations Act, 78 Harv. L. Rev. 38,
135 (1964).

As pointed out by the Court in Gissel, supra, the other purposes
are not overriding the rights of the employees to choose their
bargaining representatives. Those rights remain. For those of a
mind to, they can be exercised in terms of decertification. Ad-
ditionally, as noted above, the union had a majority. But for
Respondent’s unlawful “cleaning of its house,” its refusal to
reinstate and its manipulation of the turnover there would most
likely be no question as to which employees rights we should
be concerned with. One must ask should we be concerned with
the rights of the employees who would still be there if Respon-
dent had acted lawfully. Or should we be concerned with the
rights of the employees who are there because the Respondent
has engaged in unlawful conduct? Are the rights of one such
group mutually exclusive of the rights of the other group? The
Court in Gissel, supra, has already resolved this. No rights are
being lost or overridden. At most, with respect to those who do
not want to be represented, they are being delayed. And until
the employee situation is sorted out those who were unques-
tionably in the majority should be given the benefit of any
doubt. To do otherwise would be to reward the benefit of any
doubt to the party who, through its unlawful conduct, created
the situation in the first place. Regarding the court’s concern as
expressed in “(3)” as set forth above, the bargaining order, for
the reasons set forth above, is not destroying employees’ rights.
It has become obvious that the Respondent, for its own pur-
poses, is refusing to make the discriminatees whole and, in my
opinion, it is refusing for the time being, to reinstate the dis-
criminatees.10 Other remedies are not adequate.
The next concern expressed by the court here in Blockbuster,
supra at 1079 reads as follows:

We have repeatedly called the Board to task for its intran-
sigent refusal to accept and act upon our instructions that
the appropriateness of a bargaining order must be assessed
as of the time it is issued. See, e.g. Avecor, 931 F.2d at
936–937; Pedro’s, Inc., 652 F.2d [1005] at 1012 (D.C. Cir
1981)]

Pursuant to the court’s instructions the bargaining order in this
proceeding is assessed at the time it is issued. With respect to
the “intransigent refusal” language used by the court, this is a
matter between the Board and the court.11

10 If the Board in this case is required to assess the bargaining order
and justify it at the time of its issuance, then surely it can consider
conduct by Respondent which occurs up to the time of the issuance of
the bargaining order. That being the case, one must wonder whether
conduct engaged in by Respondent between the time of the Board’s
original decision and the remand hearing, if it is indeed possible, can
convert a category II situation into a category I situation.
11 However, from the perspective of an administrative law judge who
occasionally hears a case in the jurisdiction of a United States court of
appeals which does not agree with the Board law which is applied in
the matter, I can only note that I am required to apply only established
Board and Supreme Court precedents as opposed to precedents of that
circuit court of appeals, Ford Motor Co., 230 NLRB 716, 718 fn. l2
(1977), enfd. 571 F.2d 993, 996–1002 (7th Cir. 1978), affd. 441 U.S.
488, 493 fn. 6 (1979). Also it should be noted that Sec. 10(f) of the Act,
29 U.S.C. § 160(f), provides that
any person aggrieved by a final order of the Board may obtain a re-
view of such order in any United States court of appeals in the circuit
wherein the unfair labor practice in question was alleged to have been
engaged in or wherein such person resides or transacts business, or in
the United States Court of Appeals for the District of Columbia
And Sec. 10(e) of the Act, 29 U.S.C. § 160(e), provides, as here pertinent,
[u]pon the filing of the record with it [the circuit court of appeals] the
jurisdiction of the court shall be exclusive and its judgement and de-
cree shall be final, except that the same shall be subject to review by
the Supreme Court of the United States.
The Board, unlike a district judge, does not know which circuit court of
appeals will review its decision and, as noted above, the Board’s deci-
sions are not appealable to one court of appeals alone. Also one circuit
has held that if an agency adopts the law of another circuit as its na-
BLOCKBUSTER PAVILION 1287
And finally the court here concludes, as here pertinent, as
follows:

Nevertheless, in order to ensure that a bargaining order is
issued only in those exceptional cases that warrant it, we
insist that the Board adequately explain its need in each
case, taking into consideration the employees’ section 7
right to freedom of choice. The Board having failed in this
obligation, we remand the case to the Board to consider
whether the use of its traditional remedies would be ade-
quate to ensure a fair election. Furthermore, if the Board
is still inclined to issue a bargaining order, the order must
be justified at the time of its issuance. The Board is in-
structed to allow Blockbuster to proffer any evidence that
the passage of time or a change in circumstances might
mitigate the need for one. [Emphasis added.]

The Board has accepted the remand in this case and, therefore,
the court’s decision as the law of this case. Obviously such
acceptance does not constitute acquiescence in the court’s insis-
tence that the Board in each case take into consideration the
employees’ Section 7 right to freedom of choice, except as
required by the Court in Gissel, supra. We all are dealing with
this one case. For the reasons given above, here traditional
remedies are not adequate to ensure a fair election. Also as
noted above, the bargaining order will, in this proceeding, in
which the Board has accepted remand be justified as of the time
of its issuance. Respondent has been allowed to proffer any
evidence that the passage of time or a change in circumstances
might mitigate the need for a bargaining order.
With respect to the passage of time it is noted that the
Board’s decision issued June 1994 or about 18 months after the
hearing on the unfair labor practices had concluded.12 Since
then what has occurred occurred because of Respondent’s ar-
guments which were made while it still engaged in machina-
tions. Any delay after June 1994 must be laid squarely at Re-
spondent’s doorstep and no one else’s. While as noted above, a
respondent has the right to seek judicial review of a final Board
order, surely the court, in view of its position on the require-
ment that a bargaining order be justified as of the time of its
issuance, would not preclude the consideration of the conduct
of the respondent while it is seeking judicial relief. In other
words one who does not keep his hands clean while delaying
the finality of an order should not receive the benefit of that
delay. Under the circumstances of this case, the passage of 18
months is reasonable and in my opinion the passage of time in
this proceeding does not mitigate the need for a bargaining
order. Even if this approach is not taken, as pointed out by the
General Counsel on brief (1) the passage of time in this case, to
a large extent can be attributed to the normal course of litiga-
tion, and thus should not result in a benefit to the Respondent,
which is the wrongdoer, and (2) the Board has long held that

tionwide policy solely on the grounds of acquiescence in that circuit’s
law, the agency loses any claim that it might otherwise have had to
another circuit’s deferring to an experienced agency’s construction of
its own governing statute. Atchison, Topeka & Santa Fe RR v. Pena, 44
F.3d 437, 442–443, 445–447 (7th Cir. 1994) (en banc), affd. 116 S. Ct.
595 (1996). NLRB v. Gas Utility District, 402 U.S. 600, 603–604
(1971), the Act is Federal legislation, administered by a national
agency, intended to solve a national problem on a national scale. In
these circumstances, it appears that the Board’s course of action is the
proper one.
12 The unfair labor practices were committed in 1991 and 1992.
the mere passage of time does not negate the need for a bar-
gaining order, where the employer has engaged in numerous
and serious misconduct which has affected a large number of
employees as has been found here.
With respect to change in circumstances, Respondent cites
the above-described change in ownership, the turnover in man-
agement personnel and the turnover in the stagehand work
force. The last factor is treated above. Regarding the fact that
each of the managers who was the subject of an unfair labor
practice has not been employed at the Pavilion since the com-
pletion of the 1993 season, as pointed out by the General Coun-
sel, the evidence of record reflects that with the hiring of
Hunter as stage manager, Respondent continued with the same
course of conduct as it did during the 1991 and 1992 seasons.
Grier testified that Hunter never asked him about the recruit-
ment of union members for work at the Pavilion nor was he,
Grier, ever personally contacted for work despite having previ-
ously worked for Respondent in 1991. Hunter did not testify
although he was subpoenaed by Respondent and so Grier’s
testimony is not challenged. Grier impressed me as being a
credible witness. His testimony is credited. Klaus is not, in my
opinion, a credible witness. His credibility was placed into
question when Grier testified that the Union did not tell union
members that they should not work at Blockbuster Pavilion.
Morel did not corroborate Klaus on this point and at least one
union member worked at the Pavilion in 1995 and 1996. Re-
spondent did not pursue subpoena enforcement with respect to
Hunter. Respondent had to appreciate the fact that Klaus’
credibility was in question. One must wonder whether Re-
spondent really intended to call Hunter to the stand in that
while on the first day of the hearing Respondent said Hunter
was going to testify, Respondent had Klaus give an in depth
account of Hunter’s job duties etc, testimony that one would
normally expect to come from the person himself if he was in
fact going to testify.
As pointed out by Judge Holley, in October 1991, Respon-
dent’s corporate attorney, Joel Arnold, told union representa-
tives that there was no way Blockbuster would ever sign a col-
lective-bargaining agreement; they would not be the first shed
in the country to sign one. Amazingly even after the credibility
of Klaus’ testimony was placed into question, Respondent was
willing to rely on his testimony13 to establish that a change in
ownership occurred; none of the documentation which brought
about this change in ownership was introduced here. Respon-
dent had the burden of proof with respect to this aspect of the
case. The court instructed the Board to allow Blockbuster to
proffer any evidence that a change in circumstances might
mitigate the need for a bargaining order. Respondent did not
even call a representative of the seller to testify about who ac-
tually owned Blockbuster Pavilion at the time of the sale, the
terms of the sale as far as the seller was concerned and what
role, if any, the seller might continue to play regarding Block-
buster Pavilion. Klaus was not even on the scene in 1991 and
1992. And so one is not given the opportunity to see the writ-
ten terms of the change of ownership and one can not determine
if it was an arm’s-length transaction and what role Blockbuster
Entertainment actually continues to play. Interestingly, al-
though he has changed law firms, Respondent presently has the
same attorney in this proceeding as Respondent had in 1992
13 What Grier understood carries no weight since it was not shown
he was privy to any change.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
before Judge Holley. The sum and substance of Klaus’ testi-
mony about the asserted change in ownership is set forth above.
If one were willing to accept Klaus’ testimony at face value
regarding the change of ownership—and I could not, I would
not and I do not—Blockbuster Entertainment was involved in
an exchange of assets with respect to the change of ownership,
and Blockbuster Entertainment’s owner, Viacom, now has an
interest in Blockbuster Pavilion.14 This is hardly the kind of

14 Does Viacom hold an equal interest with its two partners or does
Viacom hold a 90-percent interest with Pace Entertainment holding 5
percent and Sony Music holding 5 percent? Even if one were willing to
accept Klaus’ understanding of the change in ownership, it is just that.
Even a validly held understanding can, in fact, be a misunderstanding.
evidence of a change in ownership which would engender con-
fidence in a reasonable person that someone else is now in-
volved and the same things will not continue to happen. As the
General Counsel points out, the same things have been happen-
ing.
The bargaining order entered in the Board’s original Deci-
sion and Order is an appropriate remedy. It was appropriate
then. It is appropriate now.
[Recommended Order omitted from publication.]

Is there some reason why Respondent failed to introduce the documen-
tation? Respondent has the burden of proof on this issue. It has not
met its burden of proof.