Medieval Knights, LLC

National Labor Relations Board - Board Decisions

Jun 28, 2007

350 N.L.R.B. 194 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 17
194
Medieval Knights, LLC and Actors’ Equity Associa-
tion and Local 632, International Alliance of
Theatrical and Stage Employees, Joint Peti-
tioner. Case 22–RC–12727
June 29, 2007
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY MEMBERS SCHAUMBER, KIRSANOW,
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on September 22, 2006, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 16 for and 18 against
the Joint Petitioner, with 2 challenged ballots, an insuffi-
cient number to affect the election results.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs,2 and contrary to the hearing offi-
cer’s recommendation, has decided to overrule Peti-
tioner’s Objection 5 and to certify the results of the elec-
tion.
Objection 5 alleges that at a meeting held during the
critical period, the Employer advised employees that
“should the Union win the election, the Employer would
drag out negotiations for at least a year,” thus threatening
employees that electing the Union as their bargaining
representative would be futile. As explained below, we
find that under the circumstances of this case, the Em-
ployer’s conduct was not objectionable.
I. BACKGROUND
The Employer’s business involves staging performances
of medieval events such as jousting and swordplay. On
August 9, 2006,3 Actors’ Equity and IATSE Local 632
filed a joint petition seeking to represent a unit of “show”

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations to overrule Petitioner’s Objections 2, 3, and 6.
The Petitioner withdrew Objections 1 and 4 before the hearing.
2 In its posthearing brief, the Petitioner raised an “additional objec-
tion.” The hearing officer found that the allegation was not sufficiently
related to the Petitioner’s Objections identified by the Regional Direc-
tor’s order directing a hearing in this case. In addition, he found that
the issue was not fully litigated. He therefore recommended that the
objection not be considered on its merits. The Petitioner has excepted
to that recommendation. We adopt the hearing officer’s recommenda-
tion and deny the Petitioner’s exception.
3 All dates are 2006, unless otherwise indicated.
employees at the Employer’s Lyndhurst, New Jersey facil-
ity. The petitioned-for unit included Knights, Squires, and
the show cast (musicians and stable hands).
The record reflects that sometime near the end of Au-
gust, the Employer hired labor consultants Peter List and
James Hulsizer to “educate” employees and management
about the election process. Witnesses stated that List and
Hulsizer were introduced to the employees on or about
August 24, and they came to the “castle” several days a
week up to the day of the election. During that time, they
were generally available to employees to answer questions
about the campaign and other labor relations issues. In
addition, they held scheduled meetings on Thursdays and
Fridays with separate groups of Knights, Squires, and
members of the show cast to discuss specific aspects of the
election process and union representation.
At meetings held on September 14 and 15, the week
before the election, List conducted an exercise on collec-
tive bargaining in which he described the process and
used a flip chart with columns listing bargaining issues
important to hypothetical employees, unions, and em-
ployers. During the presentation, List stated, among
other things, that an employer did not have to agree to
any specific proposals, that all negotiations were differ-
ent, and that the bargaining process could take weeks,
months, or even more than a year. According to credited
testimony, List said that during negotiations, “an em-
ployer, by giving into lesser items or addendums on the
contract, would be able to stall out the negotiations be-
cause they would still be bargaining in good faith but not
really agreeing to anything, agreeing to things like a bul-
letin board for the union at the jobsite, agreeing to re-
stricted bargaining unit work, things like that, that would
make them show they were bargaining in good faith but
not really getting anything done.” Although witnesses
could not remember List’s exact words or whether he
said that the fictional company “could” or “would” en-
gage in such bargaining tactics, it was undisputed that
List’s presentation was about a hypothetical employer,
and at no time did he say that Medieval Knights would
engage in any particular bargaining conduct.
II. DISCUSSION
The Board has consistently held that, absent threats or
promise of benefits, an employer may explain the advan-
tages and disadvantages of collective bargaining in order
to convince employees that they would be better off
without a union. See, e.g., Langdale Forest Products
Co., 335 NLRB 602 (2001) (employer’s newsletter, not-
ing that employees at its nonunion facilities received
greater wage increases than employees at its union facil-
ity, did not violate Sec. 8(a)(1)). In this case, the evi-
dence does not support a finding that the Employer
MEDIEVAL KNIGHTS, LLC 195
threatened employees or suggested that electing the Un-
ion as their bargaining representative would be futile, as
alleged.
As noted above, it is undisputed that List’s remarks
were made during an exercise involving hypothetical
bargaining parties, and there is no evidence that List
threatened or suggested that the Employer would engage
in the bargaining conduct described in the exercise. On
the contrary, List stated that all negotiations are different
and that the bargaining process could take a week, a
month, or a year. See Manhattan Crowne Plaza, 341
NLRB 619, 620 (2004). Employees attending the meet-
ing could recognize that it was an exercise and not a de-
piction of Medieval Knights’ actual bargaining strategy.
The Board has found that employees can distinguish be-
tween a hypothetical exercise about bargaining and an
employer’s description of its actual or planned bargain-
ing strategy. See Days Inn Management Co., 299 NLRB
735, 740 (1990) (noting that employees understood that a
skit depicting a bargaining session was merely an encap-
sulation of a longer and more complex process), enfd. in
relevant part, enf. denied on other grounds 930 F.2d 211
(2d Cir. 1991).4
In addition, witnesses testified that they could not re-
member the exact words List used during the presenta-
tion to describe the hypothetical employer’s bargaining
conduct. As the hearing officer noted, Petitioner’s wit-
ness Steve Mellifont could not remember whether List
said a company “could” or “would” seek to extend nego-
tiations. We are unable, therefore, to rely without ques-
tion on the exact words of Mellifont’s recollection of
List’s statements.
The Board has generally found that descriptions such
as List’s bargaining scenario merely point out “the possi-
ble pitfalls for employees of the collective-bargaining
process.” Standard Products Co., 281 NLRB 141, 163
(1986), enfd. in part, enf. denied in part on other grounds
824 F.2d 291 (4th Cir. 1987) (quoting Coach & Equip-
ment Sales Corp., 228 NLRB 440 (1977)). In Manhattan
Crowne Plaza, supra, the employer informed employees,
1 week before the election, that union members at an-
other hotel were fired and replaced when the parties
failed to reach an agreement after over a year of negotia-
tions. The Board found that the employer’s conduct was
not unlawful because it merely provided employees with
a concrete example of a potential negative outcome to
electing a union.5 Similarly, in Standard Products Co.,

4 Our dissenting colleague believes that “it is not likely” that em-
ployees can make such a distinction. Like previous Boards, we dis-
agree.
5 In Manhattan Crowne Plaza, the Board specifically rejected the
Regional Director’s claim that the employer “clearly implied” that it
supra at 162, the employer’s plant manager told employ-
ees that, if the union won the election, he would “be sit-
ting at the bargaining table and everything that is asked, I
can say no, no, no.” The Board affirmed the judge’s
finding that the manager’s remarks did nothing more
than portray the pitfalls for employees of the collective-
bargaining process. Id. at 163. We find that the state-
ments attributed to List and relied on by the hearing offi-
cer are similar to these statements that the Board has
found to be unobjectionable.6
In light of the above, we find that the Employer’s
statements in this case were not objectionable. We there-
fore overrule Petitioner’s Objection 5. Accordingly, as
the Petitioner failed to secure a majority of the valid bal-
lots cast, we certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Joint Petitioner Actors’ Equity Associa-
tion and Local 632, International Alliance of Theatrical
and Stage Employees, and that it is not the exclusive
representative of these bargaining-unit employees.
MEMBER WALSH, dissenting.
I would adopt the hearing officer’s finding that the
Employer created the impression that it would be futile
for the employees to select the Union. Accordingly, I
would set aside the election.
The facts are not in dispute. One week before the elec-
tion, the Employer’s labor consultant, Peter List, held a
meeting with some unit employees to conduct an “exer-
cise” concerning collective bargaining. List told the em-
ployees that, during negotiations,
an employer, by giving into lesser items or addendums
on the contract, would be able to stall out the negotia-
tions because they would still be bargaining in good

would engage in the same conduct as that of the other hotel’s employer.
Similarly, we reject our dissenting colleague’s speculation that the
“clear implication” of List’s bargaining exercise was that Medieval
Knights would engage in the same bargaining conduct as the hypotheti-
cal employer. That the employer in Manhattan Crowne Plaza related
what another employer had done, whereas List spoke of what a hypo-
thetical employer might do, is a distinction without a difference. In
both cases, the employer told a story about an employer’s conduct. In
Manhattan Crowne Plaza, the Board declined to infer that the employer
thereby implied that it would do likewise. We also decline to draw a
similar inference here. In addition, because List did not state or imply
that the Employer would adopt any particular bargaining strategy, he
had no duty, as the dissent suggests, to expressly state that the Em-
ployer would “eschew the bargaining approach he laid out.”
6 It is undisputed that List made no statements, promises, or predic-
tions about the Employer’s actual bargaining strategy We do not pass
on our dissenting colleague’s contention that List’s hypothetical de-
scribed “sham bargaining.” As noted above, List did not imply, and we
do not infer, that the Employer would engage in the same bargaining
conduct as described in the exercise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD196
faith but not really agreeing to anything, agreeing to
things like a bulletin board for the union at the job site,
agreeing to restricted bargaining unit work, things like
that, that would make them show that they were bar-
gaining in good faith but not really getting anything
done.
List’s statement was widely disseminated among the
unit employees. The Union lost the election, 16 to 18,
with 2 challenged ballots.
Contrary to my colleagues, I agree with the hearing of-
ficer that List’s statement was objectionable. In essence,
List told the employees that an artful employer could
make an effective show that it was negotiating in good
faith but in fact frustrate bargaining and ensure that the
parties never reached agreement. The clear implication
of List’s statement was that if the employees selected the
Union, the Employer would engage in, and get away
with, sham bargaining. The hearing officer therefore
properly found, and I agree, that the Employer effec-
tively told the employees that it would be futile for them
to vote for the Union.
Reasoning otherwise, my colleagues emphasize that
List’s statement was made “during an exercise involving
hypothetical bargaining parties,” that the remarks merely
described the “possible pitfalls of the collective-
bargaining process,” and that List told the employees that
“all negotiations are different.” My colleagues therefore
find that the employees would recognize that List’s
statement was not a forecast of the Employer’s actual
bargaining strategy, and therefore did not convey a
threat.
But the majority’s findings and conclusions do not ring
true. List is an experienced antiunion consultant; his
audience consisted of laypersons. And List said nothing
to indicate that the Employer would eschew the bargain-
ing approach he laid out. In the circumstances, it is not
likely that the employees would regard List as speaking
about “possible pitfalls” and “hypothetical bargaining
parties.” Rather, it is more reasonable that the employ-
ees would consider the statement within the context of
their own employment, and infer that, should they reject
List’s antiunion campaign and vote for union representa-
tion, the Employer would nevertheless rely on this strat-
egy to avoid ever coming to terms.
The cases cited by the majority do not support its con-
clusion. In Days Inn Management Co., 299 NLRB 735
(1990), the Board did not find that the skit depicting col-
lective bargaining was lawful simply because, as the ma-
jority asserts, “the employees understood that [the] skit . . .
was merely an encapsulation of a longer and more com-
plex process.” Rather, the skit was lawful primarily be-
cause it “show[ed] the [r]espondent bargaining in good
faith . . . .” Id. at 740. For that reason, the judge con-
cluded that the skit was neither expressly nor impliedly
threatening.1 Similarly, in Standard Products Co., 281
NLRB 141 (1986), enfd. in part, enft. denied in part on
other grounds 824 F.2d 291 (4th Cir. 1987), where the
employer stated that it would engage in hard bargaining if
the union won the election, the Board deemed the state-
ment unobjectionable because hard bargaining is lawful;
sham bargaining is not. Id. at 163. Finally, although I
dissented in Manhattan Crowne Plaza, 341 NLRB 619
(2004), that case, too, is different: the employer’s state-
ment there, describing what had happened in collective
bargaining at another hotel was, at least, factually accurate.
By contrast, List’s remarks described a sham bargaining
strategy that is patently unlawful. Contrary to the major-
ity, no speculation is necessary to conclude that the em-
ployees would make the connection between the strategy
outlined by their employer’s consultant and their own em-
ployment.2
In sum, in widely disseminated remarks, employer
consultant List set forth a strategy for the Employer’s
“stall[ing] out” negotiations and “not . . . getting any-
thing done,” with impunity. The employees would rea-
sonably infer that List was talking about their own work-
place, and therefore understand that List was telling them
that selecting union representation would be futile. Ac-
cordingly, in agreement with the hearing officer, I would
set aside the election.

1 My colleagues assert that, in Days Inn, the Board found that “em-
ployees can distinguish between a hypothetical exercise about bargain-
ing and an employer’s description of its . . . planned bargaining strat-
egy.” But the Board made no such blanket statement. Rather, in light
of all the circumstances in that case–including the entry into the record
of the complete script of the skit–the Board found that those employees
“attending this skit understood that it was a brief encapsulation of a
[longer] process . . . .” (Emphasis added.) It is quite a leap from that
statement to the majority’s claim here, that employees presented a skit
by their employer depicting sham bargaining would understand that the
employer did not intend to pursue such a strategy.
2 In my dissent in Manhattan Crowne Plaza, I concluded that the
employer’s statement, that “each set of negotiations is different,” did
not neutralize the threat directly preceding it. Id. at 620. That conclu-
sion is equally apt here.