DLC Corp.,d/b/a/ Tea Party Concerts and/or Live Nation

National Labor Relations Board - Board Decisions

Mar 31, 2009

353 N.L.R.B. 1292 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 130
1292
DLC Corp., d/b/a Tea Party Concerts and/or Live
Nation and International Alliance of Theatrical
Stage Employees, Moving Picture Technicians,
Artists and Allied Crafts of the U.S. and Can-
ada, Local 11, AFL–CIO. Case 1–RC–22162
March 31, 2009
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The National Labor Relations Board has considered
objections to an election held June 13 and 14, 2008, and
the hearing officer’s report recommending disposition of
them.1 The election was conducted pursuant to a Deci-
sion and Direction of Election dated January 16, 2008.
The tally of ballots shows 48 for and 53 against the Peti-
tioner, with 2 challenged ballots, an insufficient number
to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has decided to adopt the hearing
officer’s findings and recommendations only to the ex-
tent consistent with this Decision and Direction of Sec-
ond Election.
In its Objection 2, the Petitioner alleged that the Em-
ployer interfered with the election by offering a benefit, 4
hours’ pay, to off-duty employees in exchange for their
participation in the voting process. The hearing officer
found that the Employer in fact made such an offer, but
concluded that it was not objectionable conduct.
Consistent with the Petitioner’s exceptions, we find
that the Employer’s conduct was objectionable. Accord-
ingly, we reject the hearing officer’s recommendation to
certify the election results, and we will direct the Re-
gional Director to conduct a new election.2
Background
The Employer is DLC Corp., d/b/a Tea Party Concerts,
a subsidiary of Live Nation, Inc. It promotes, stages, and
presents music concerts at venues including the Tweeter

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Petitioner filed seven election objections. Objection 4 was
withdrawn at the hearing. Because we sustain Objection 2, we find it
unnecessary to consider the hearing officer’s recommendations to over-
rule Objections 1 and 7. In the absence of exceptions, we adopt pro
forma the hearing officer’s recommendations to overrule Objections 3,
5, and 6.
Center, a summer-season facility located in Mansfield,
Massachusetts.
The Petitioner seeks to represent the Employer’s stage-
hands working at Tweeter Center. It filed an election
petition on December 4, 2007. The Regional Director
designated election dates in June 2008 because of the
seasonal nature of the stagehands’ work at Tweeter Cen-
ter.
In a letter to all eligible voters dated May 6, 2008, the
Employer explained some of the procedures for the up-
coming June election and reviewed its position opposing
the Petitioner on several campaign issues. In addition,
the letter stated:
If you are not on a call either of the two voting days,
we would encourage you to come and vote (you will be
paid for a 4-hour call if you vote and are not on a call
either of those days.)
IT IS VERY IMPORTANT THAT EVERYONE
VOTES SINCE EVERY VOTE COUNTS!3
The May 6 mailing enclosed two other documents: one
raising a list of questions about the Petitioner’s campaign
that, in the Employer’s view, should concern the stage-
hands, and the other identifying dates and times of up-
coming meetings where the Employer’s representatives
would be available to discuss campaign issues.
Fifty-six eligible voters were not assigned a call at
Tweeter Center on either of the election dates. Ten of
these off-duty employees requested and received 4 hours’
pay for voting in the election. As indicated above, the
Petitioner lost the election by five votes.
In Objection 2, the Petitioner contended that both the
offer to the stagehands in the May 6 letter and the actual
payments to 10 of them were objectionable. The hearing
officer identified Sunrise Rehabilitation Hospital, 320
NLRB 212 (1995), as relevant case law: a full-Board
decision concluding that an employer’s offer to off-duty
employees of 2 hours’ pay in return for voting was objec-
tionable conduct. The hearing officer then discussed at
length the weaknesses he perceived in the Sunrise deci-
sion in view of other of the Board’s rules and policies
underlying appropriate preelection campaign conduct.
He concluded that the rights protected by Section 8(c) of
the Act require that an employer be allowed to pay an
employee for the time spent voting in a Board election,

3 A “call” is a work assignment at Tweeter Center. The Employer’s
stagehands receive a minimum of 4 hours’ pay when they work a call.
Thus, consistent with the stagehands’ wage rates at the time of the
election, the Employer’s “4-hour call” offer to off-duty employees
represented a range of potential payments between $40 and $95.
TEA PARTY CONCERTS 1293
whether the employee is on duty or off. Accordingly, he
recommended overruling Objection 2.
In its exceptions, the Petitioner argues that the Em-
ployer’s payment offer to off-duty stagehands is not dis-
tinguishable in any significant way from Sunrise and
Board decisions following it. The Petitioner contends
that the hearing officer erred by ignoring the applicable
precedent and substituting his own policy preference for
the standard established by the Board.
In its answering brief, the Employer contends that its
offer of 4 hours’ pay was a matter of legitimate reim-
bursement consistent with its established practice. It
argues accordingly that the offer was not objectionable
under the Sunrise standard.
Discussion
Sunrise Rehabilitation Hospital, supra, is current law
and is controlling.4 Pursuant to Sunrise, a party engages
in objectionable conduct by paying employees to attend
the election unless the payment is for the reimbursement
of actual transportation expenses. Cf. Good Shepherd
Home, 321 NLRB 426 (1996), enfd. 145 F.3d 814 (6th
Cir. 1998) (good-faith effort to reimburse an off-duty
employee’s actual transportation expenses for attending
election not objectionable).
In the present case, the Employer explicitly offered to
provide off-duty stagehands with 4 hours’ pay in ex-
change for coming in to the polling location to vote. As
in Sunrise, the offer was substantial; it was not linked to
reimbursement for travel or other costs; and the number
of employees potentially affected was not de minimis.5
In its answering brief, the Employer contends that the
“4-hour call” offer was consistent with its established
practice of paying stagehands for a minimum of 4 hours
when they are present at Tweeter Center “under any cir-

4 Member Schaumber did not participate in Sunrise Rehabilitation
Hospital, supra. However, he recognizes Sunrise and its progeny as
extant Board precedent, and applies it here for institutional reasons. At
the appropriate time, Member Schaumber would revisit the area of
union/employer reimbursement of travel and lost wage expenses in
connection with representation elections in order to foster participation
in Board elections and provide greater clarity and uniformity in the
applicable standards. See Durham School Services LP, 353 NLRB
1288 fn. 2 (2009).
5 While there was no explicit “vote no” message in the Employer’s
offer, there was an implicit one. The May 6 letter, the two enclosures
with it, and the Employer’s campaign positions generally, all made
clear the Employer’s opposition to the Petitioner’s campaign. In any
event, decisions following Sunrise have not required a linkage between
the offer and an antiunion message to find objectionable conduct. See
Lutheran Welfare Services, 321 NLRB 915 (1996); Perdue Farms, 320
NLRB 805 (1996).
cumstances.” The Employer also argues that the offer
represented no more than fair reimbursement for the ex-
pense of travelling to Tweeter Center, and/or for lost
work opportunities at other concert venues if off-duty
stagehands chose to vote.6
We are unpersuaded by the Respondent’s reimburse-
ment argument. The May 6 letter made no reference to
reimbursement for off-duty employees’ expenses in par-
ticipating in the election. Rather, the Employer simply
offered 4 hours’ pay in exchange for showing up to vote.
Thus, the Employer’s reimbursement argument presents
a post-hoc rationale.7 In any event, the Employer has
failed to substantiate this rationale.8
We therefore conclude that the Employer’s May 6 of-
fer to pay off-duty stagehands in return for voting inter-
fered with the employees’ freedom of choice in the elec-
tion. Accordingly, we sustain Objection 2, and we will
order a new election.
[Direction of Second Election omitted from publica-
tion.]

6 The Employer cites Allen’s Electric Co., 340 NLRB 1012 (2003),
in support of its arguments. Allen’s is distinguishable. In that case, the
union offered to reimburse on-duty employees for actual wages lost
because of their time spent in voting in the Board election. No offer
was made to off-duty employees in exchange for voting. Id. at 1013 fn.
8.
7 See Rite Aid Corp., 326 NLRB 924 fn. 1 (1998) (Board rejected as
a post-hoc rationale employer’s assertion that payments were reim-
bursement for transportation costs of attending election).
8 There is no evidence that the Employer maintained a practice of
paying for a minimum 4-hour call whenever a stagehand was present at
the Tweeter Center. Such payments were available only when stage-
hands were required to go to the facility pursuant to a work assignment.
Voting in a Board election does not meet this standard. Moreover, the
Employer did not establish that 4 hours’ pay represented a reasonable
estimate of off-duty stagehands’ transportation expenses and financial
losses due to lost work opportunities caused by coming in to vote.