SFX Target Center Arena Management, LLC

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 725 (N.L.R.B. 2004)

SFX TARGET CENTER ARENA MANAGEMENT, LLC
342 NLRB No. 71
725
SFX Target Center Arena Management, LLC and
International Alliance of Theatrical Stage Em-
ployees Local 13. Case 18-CA-15930-1
July 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On April 9, 2002, Administrative Law Judge William
J. Pannier III issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings, and conclusions2
and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, SFX Target Center Arena
Management, LLC, Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Joseph H. Bornong, for the General Counsel.
Andrew M. Herzig (Akin, Gump, Strauss, Hauer & Feld,
L.L.P.), of New York, New York, for the Respondent.
Matt Rice, of Minneapolis, Minnesota, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I heard this
case in Minneapolis, Minnesota, on October 2, 2001. On June
27, 2001, the Regional Director for Region 18 of the National
Labor Relations Board (the Board) issued a complaint and notice

1 The General Counsel concedes in its answering brief that SFX was
not a “perfectly clear” successor, as found by the administrative law
judge. In any event, we find it unnecessary to pass on this finding.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
3 Members Schaumber and Meisburg observe that it is Federal labor
policy to reduce legal barriers to the disposition of business assets of
employing entities, in order to encourage commerce and investment.
To that end, a successor employer is generally permitted to set new
initial terms and conditions of employment. Here, if the Respondent
wished to increase its flexibility regarding the performance of certain
bargaining unit work by third parties such as contractors, it could have
set new initial terms and conditions permitting this. However, the
Respondent did not simply set new initial terms and conditions; instead
it unilaterally determined that the incumbent union would no longer
have the right to bargain on behalf of certain categories of bargaining
unit employees. This the Respondent could not lawfully do.
of hearing, based upon an unfair labor practice charge filed on
March 7, 2001, and amended on June 6, 2001, alleging violations
of Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act). All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based upon the entire record, upon the
briefs that were filed, and upon my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This somewhat unusual situation presents, at root, a unit is-
sue in an alleged successor-employer context. It arose at a
public arena where, over the course of each calendar year, vari-
ous relatively short-term events are staged and presented for
public consumption. In connection with each event employees,
referred to herein as stagehands, must assemble, operate, dis-
mantle and rig whatever facilities and equipment are necessary
for each event to be staged and presented. As must be obvious,
those employees do not work day-by-day, week-by-week at the
arena. Instead, they work there only whenever events are
scheduled for performance and only from initiation of assembly
through completion of disassembly. Therefore, stagehand work
at the arena is essentially irregular and part time.
As a general proposition, the threshold question presented is
whether or not a new employer of those stagehands, working
periodically at that arena, is a successor-employer, within the
meaning of the Act, to predecessor-employers who had em-
ployed stagehands during the period when each of them had
been responsible for management of events staged and pre-
sented at the arena. The next question is whether or not that
new employer was free to unilaterally delete from a historical
bargaining unit, in which stagehands had been represented by
an exclusive collective-bargaining representative, within the
meaning of Section 9 of the Act, certain categories that had
been included in the historical unit, thereby excluding employ-
ees in those categories from representation and from coverage
under any collective-bargaining contract negotiated between
their exclusive representative and the new employer.
The facts are not disputed in any significant respect. Given
the setting underlying the complaint’s allegations, and the ar-
guments for and against violation of the Act, however, a some-
what prolonged, and sometimes tedious, description of those
facts is required. Based upon those facts, and the principles
applied to them under the Act, I conclude that a preponderance
of the evidence establishes that there was a successor-employer
who did voluntarily recognize the stagehands’ exclusive repre-
sentative, seemingly because it was perfectly clear that a major-
ity of the predecessors’ stagehands would be employed at the
public arena. However, that successor-employer chose to ex-
tend recognition only for most, but not all, of the historical
bargaining unit. In short, the successor-employer unilaterally
eliminated from the historical unit some categories represented
historically by the now-incumbent bargaining agent. Justifica-
tions were advanced for pursuing that course. As concluded in
section II, infra, however, I conclude that those justifications do
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
not suffice to overcome the unlawful unilateral modification of
the historical bargaining unit made by the successor-employer.
Therefore, I conclude that the evidence establishes a violation
of Section 8(a)(5) and (1) of the Act.
B. Operations at Target Center Arena
The complaint’s allegations arise from events involving Tar-
get Center Arena, an indoor arena located in Minneapolis. It
opened in 1990. At all times then, and since then, the arena has
been owned by Minneapolis Community Development Agency.
Various types of publicly attended events have been staged and
presented there: professional basketball and hockey, wrestling
matches, ice shows and circuses, concerts, political rallies,
family shows, and graduations. So far as the record discloses,
the arena is dark between events.
Various types of employees are needed to stage and present
those events: maintenance and custodial employees, box office
ticket sellers, ticket-takers and ushers, changeover employees
and employees who set up and dismantle facilities and equip-
ment needed to stage and present each particular event, and
employees who operate equipment—sound, lighting, projec-
tors—during events. So far as the evidence discloses, none of
those employees work at Target Center Arena between events.
Moreover, none of them have ever been employed by Minnea-
polis Community Development Agency, the arena’s owner.
For staging and production of events, and for operations in
conjunction with those events, Minneapolis Community Devel-
opment Agency has always contracted with privately owned
firms. From the arena’s 1990 opening until June 2, 2000,1 there
were separate contracts with Ogden Entertainment Services,
Inc. (Ogden Entertainment) and Ogden Concessions. Appar-
ently, there was, or still may be, some relationship between
those two firms. But, the record is not clear regarding the exact
relationship. In any event, whatever that relationship may be, it
is not significant for resolution of issues presented in this pro-
ceeding. The significant point is that Ogden Concessions han-
dled the food and beverage concessions at Target Center Arena,
employing only the food and beverage employees.
All other employees at that arena were employed from 1990
to mid-2000 by Ogden Entertainment. Pursuant to management
contract with Minneapolis Community Development Agency, it
served as manager for events conducted at Target Center
Arena. That is, Ogden Entertainment scheduled events, ar-
ranged for employment of personnel needed to stage and pro-
duce them, and oversaw installation, operation, and dismantling
of facilities and equipment in connection with each event.
Both Ogden companies were replaced by two separate
Aramark firms on June 2. Again, the exact relationship be-
tween those two companies was left undeveloped in the record.
But, again, whatever the exact relationship, it is not significant
for resolution of issues presented in this proceeding. One
Aramark firm replaced Ogden Concessions in handling food
and beverage concessions. The other, Aramark Entertainment,
replaced Ogden Entertainment as manager for Target Center
Arena events. It is undisputed that Aramark Entertainment

1 Unless stated otherwise, all dates occurred during 2000.
performed the same role in that respect as had Ogden Enter-
tainment.
The Aramark firm responsible for food and beverage conces-
sions was continuing to do so as of the date of the hearing in
the instant proceeding. In contrast, Aramark Entertainment
experienced a quite short-term duration as arena manager. On
September 21, slightly over 3 months after becoming arena
manager, it was replaced by Respondent, SFX Target Center
Arena Management, LLC. It is part of a national entertainment
company conducting operations throughout the United States.
More specifically, at all material times Respondent has been a
Delaware corporation, with an office and place of business in
Minneapolis. It admits that since September 21 it has been
engaged in providing services, equipment and materials in-
volved in production of entertainment events, such as concerts
and sporting events, at Target Center Arena. Furthermore, in
conducting those business operations during the latter part of
calendar year 2000, Respondent admittedly earned gross reve-
nues in excess of $1 million and, further, admittedly sold goods
and services valued in excess of $50,000 directly to customers
located outside of the State of Minnesota. Therefore, at all
material times, as it admits, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Under its management contract with Minneapolis Commu-
nity Development Agency, Respondent acknowledges that it
plays the same manager’s role, for staging and presenting
events at Target Center Arena, as had Aramark Entertainment
and, before it, Ogden Entertainment. That is, Respondent
serves as manager for the same facility—Target Center
Arena—as did Aramark Entertainment and, before it, Ogden
Entertainment. It schedules the same types of events—
basketball and hockey games, wrestling matches, ice shows and
circuses, concerts, etc.—as had Aramark Entertainment and,
before it, Ogden Entertainment. It employs the same types of
employees—maintenance and custodial employees, box-office
personnel, ushers and ticket-takers, employees who install, rig,
operate, and dismantle facilities and equipment for events—as
had Aramark Entertainment and, before it, Ogden Entertain-
ment.
Furthermore, each of those three firms employed, as its assis-
tant executive director of operations, Jack Larson. Until he left
Respondent approximately a month before the hearing in the
instant matter, to become vice president of operations for Min-
nesota Hockey Ventures Group, Larson had served as day-to-
day manager successively for Ogden Entertainment, Aramark
Entertainment and Respondent. Respondent admits that at all
material times, at least from September 21, 2000, until some-
time in September 2001, Larson had been a statutory supervisor
and its agent.
C. History of Bargaining Relationships
Under Ogden Concessions and, then, Aramark the food and
beverage concession employees have been represented, seem-
ingly continuously, by a labor organization identified during the
hearing as Hotel and Restaurant Employees Local 17. In like
vein, maintenance techs and custodial crew, changeover crew,
and ushers and ticket-takers have been represented, seemingly
SFX TARGET CENTER ARENA MANAGEMENT, LLC 727
continuously, by a labor organization identified during the hear-
ing only as Teamsters. A third group of employees—suite
attendants, box office ticket sellers, and security guards—has
been, apparently continuously, unrepresented by any labor or-
ganization since the arena’s 1990 opening. So far as the record
shows, historically those three groups of employees have been
dealt with separately from the group of employees at issue in
this proceeding. That is, regardless of by whom employed over
time, so far as the evidence shows, none of the employees in
any of those three groups have been represented in the histori-
cal bargaining unit of employees, described below, at issue in
this proceeding. Their representation or lack of representation,
respectively, has not been shown to have any effect on the
separate identity of employees at issue in this proceeding.
From 1990 the employees at issue have been represented by
the Union, International Alliance of Theatrical Stage Employ-
ees Local 13, a labor organization within the meaning of Sec-
tion 2(5) of the Act. The Union and Ogden Entertainment en-
tered into a collective-bargaining contract for a stated effective
period of “the first day of October, 1990 to the 31st day of July,
1993, and from year to year thereafter unless and until either
party gives to the other party a written notice sixty (60) days
prior to July 31st, 1993 or any subsequent calendar year of a
desire to amend, modify or terminate this agreement.” Article
I, section 1.01 of that contract sets forth the bargaining unit in
which the Union was recognized as the exclusive collective-
bargaining agent:

[E]mployees that perform the functions customarily within
the jurisdiction of the Union, including, by way of illustration
but not limitation, the installation, operation, dismantling and
rigging of temporary and permanent sound equipment, light-
ing equipment, band gear, projection screens, projection
equipment, videotape equipment and any related audio/visual
equipment, temporary staging, properties, scenery, drops and
drapery; fork-lift operation; wardrobe; the loading and
unloading of trucks carrying equipment described in this Sec-
tion 1.01 and various other duties incidental or related to the
preparation or rendition of events, including the carrying of
television lighting equipment and installation of such equip-
ment. [Underscoring and emphasis added.]

As will be seen, the underscored portions of that bargaining
unit have been brought into issue by Respondent’s actions and
the allegations concerning them. The italicized portion is sig-
nificant only in connection with an arbitration decision, dis-
cussed below.
Before moving to description of what occurred during Sep-
tember, several aspects of the bargaining history—between the
Union and Ogden Entertainment and then, briefly, between the
Union and Aramark Entertainment—must be described.
First, as the unit description indicates, the work covered by
the bargaining unit encompasses bringing facilities and equip-
ment for an event into the arena, installing it, operating what-
ever equipment necessary during the event, dismantling facili-
ties and equipment following an event, and storing or, alterna-
tively, loading them onto trucks for transportation to the event’s
next location, depending on the type of event—basketball game
versus circus, for example—being staged and presented.
Under the first of the two underscored portions of the above-
quoted bargaining unit, included in the unit were employees
who installed, rigged, operated, and dismantled large projection
screens, now so common in indoor arenas and outdoor stadiums
and ballparks, and equipment relating to them. For example, at
athletic events, those screens are utilized to display replays and,
perhaps, to simultaneously display the ongoing flow of play.
For concerts, and probably other events occurring on a stage,
those screens are utilized to display the ongoing performance,
thereby enhancing ability of less-favorably-situated audience
members to see what is occurring on stage. The work involved
in connection with those screens involves bringing the equip-
ment, such as cameras and screens, into the arena from storage
areas or unloading it from trucks, depending on the type of
event, installing it where it needs to be placed in the arena,
setting it up for operation, connecting the cables and whatever
else is necessary for operation, and, at event’s conclusion, dis-
assembling and restoring or reloading all of that equipment.
Second, during 1990 and thereafter, various restrictions were
placed on the scope of work performed by unit employees. For
example, article I, section 1.01 of the above-mentioned 1990–
1993 contract provided, “This Agreement shall not apply to the
computerized in-house lighting system.” Moreover, as opera-
tions progressed under that contract’s term, a dispute arose
concerning a Nordstrom’s commercial produced at Target Cen-
ter Arena. It would lead to an addition in the succeeding col-
lective-bargaining contract between the Union and Ogden En-
tertainment.
For that commercial, installation, operation, dismantling
work was performed by employees of the contractor producing
the commercial, as opposed to employees retained by Ogden
Entertainment. That contractor had not been producing the
commercial for Target Center Arena, nor for Ogden Entertain-
ment. Rather, the arena was no more than the site for produc-
ing a commercial pursuant to contract with the Minnesota Tim-
berwolves of the National Basketball Association, the arena’s
primary tenant. Thus, Ogden took the position that it was not
the employer of the employees performing the disputed work
and, accordingly, article I, section 1.01 of the collective-
bargaining contract was inapplicable. Eventually, that type of
dispute was resolved through collective bargaining.
Despite its stated 1990–1993 term, the initial contract pro-
vided for year-to-year renewal, under the terms quoted above.
Apparently it was allowed to renew automatically until 1997,
when the Union and Ogden Entertainment negotiated the only
other contract produced during the hearing. At least, former
Assistant Executive Director of Operations Larson referred to
that later contract as “the second contract,” and it has a stated
terms of “the 3rd day of March, 1997 to the 2nd day of March
2000,” with automatic renewal provided as in the 1990–1993
contract.
The language of article I, section 1.01 in the 1997–2000 con-
tract is identical to the above-quoted language in that same
article and section of the 1990–1993 contract. However, added
to article I of that “second contract,” testified Larson, was sec-
tion 1.05, intended to resolve the Nordstrom’s-type of dispute.
Section 1.05 states:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
The provisions of Sections 1.01, 1.011 and 1.02 notwithstand-
ing, customers and users of the Target Center, including their
employees and contractors, may load, unload, move in, in-
stall, operate and take out video recording equipment and
other visual recording equipment and accompanying portable
lighting equipment for purposes of shooting a commercial.

In the end, however, that addition did not eliminate disputes
over application of article I, section 1.01 to stagehands’ work
being performed at Target Center Arena.
Third, “in 1998,” Larson testified, a McDonald’s commercial
was being produced at Target Center Arena, apparently pursu-
ant to agreement with a customer or user of the arena. The
Union voiced, he further testified, “[a] similar claim that they
should be doing the setup and take down work of,” in this in-
stance, “the lighting equipment,” and, possibly also, cables and
connections for equipment. “I can’t remember exactly how it
ended up,” testified Larson, but “we didn’t get a final answer
on that.” There is no evidence that the McDonald’s dispute
ever proceeded to arbitration. However, that did occur when
the World Figure Skating Championships (WFSC) were per-
formed at Target Center Arena from March 22 through April 5,
1998.
In connection with that performance, several issues were
eventually presented for arbitration. Only one involved actual
interpretation of the 1997–2000 contract’s article I, section 1.01
which, as pointed out two paragraphs above, repeats the bar-
gaining unit description of the 1990–1993 contract’s same arti-
cle and section. A second issue did not involve interpretation
of that article and section. Yet, its resolution does provide
some insight regarding how carefully one must approach inter-
pretation of the stagehands’ work at Target Center Arena.
That second arbitration issue centered on upgrading the
arena’s power supply, by laying electrical power feeder cable
from a temporary power generator, supplied by Ogden Enter-
tainment and located outside of the arena, to a power discon-
nect on a catwalk within the arena. Ogden Entertainment had
assigned that work to two of its employees represented by
Teamsters and to outside contractor Ziegler and Design Group
(Ziegler). Ziegler used two of its own employees and two per-
sons for whose services Ziegler had contracted. The Union did
not contend that the work was literally encompassed by article
I, section 1.01, but argued that employees it represented had
customarily performed that work.
Arbitrator Laura Cooper decided against the Union on that
point. In the process, she made several points that show how
finely distinctions can be drawn in this industry when resolving
disputes about work performed by stagehands at Target Center
Arena. Thus, she pointed to distinctions between “the pulling
of lighting cable and . . . the pulling of electrical cable”; be-
tween “the running of power cable from an outside generator
. . . [and] the running of cable from a disconnect to lights or
sound”; between “electrical or power cable, and, if power ca-
ble, whether it was cable from an outside generator”; and, be-
tween “pull[ing] cable from an outside generator supplied by
Ogden, rather than one supplied by a [musical or wrestling]
show.” Indeed, the arbitrator pointed out, Ogden Enterprises
acknowledged that the Union’s contractual unit embraced
“pulling electrical cable from a generator supplied by a musical
or other act,” and, in addition, “the running of cable from a
disconnect to lights or sound, work [Ogden Entertainment]
agrees is within the Union’s jurisdiction,” though not the sub-
ject of the grievance she was addressing. These distinctions
and Ogden Entertainment’s acknowledgements serve as some
warning to those not conversant with the details of this industry
that care must be exercised when evaluating disputes which
arise. Over-generalized interpretations of the contractual bar-
gaining unit need to be avoided.
The article I, section 1.01 determination which the arbitrator
did make is pertinent to this proceeding, not only because it
involves an interpretation of the contractual provision which
Respondent changed, but also because the arbitrator’s resolu-
tion is advanced by Respondent as partial justification for hav-
ing made that change. At issue was ABC-TV employed and
hired personnel who, states the arbitrator, “performed television
support work for the [WFSC], including the handling of televi-
sion equipment and cabling, including the loading, unloading
and installation of television equipment, cameras and monitors
and laying and pulling of television cables connecting such
equipment.” It should be noted that this situation differs from
the above-described one involving Nordstrom’s and McDon-
ald’s.
Those were situations where Target Center Arena was no
more than a site being utilized for producing commercials to be
shown elsewhere. No audience was present in the arena.
WFSC was an actual event being performed in Target Center
Arena. Audiences had paid and were present in the arena for
WFSC performances. Not only were those performances seem-
ingly being shown on the large screens within the arena, to the
audiences present for performances, but those performances
were also being televised to audiences outside the arena. As
the arbitrator stated, “The question is whether the Union’s ju-
risdiction includes handing equipment for broadcast as well as
for internal video.”
The Union based its claim to this work squarely on article I,
section 1.01 of the 1997–2000 contract. It argued that the work
being performed by ABC-TV employees and hirees was en-
compassed by “the installation, operation, dismantling and
rigging of . . . projector screens, projection equipment, video-
tape equipment and any related audio/visual equipment” por-
tion of that article and section. In the end, however, the arbitra-
tor did not interpret, or even attempt to interpret, that portion of
article I, section 1.01.
Instead, she looked to “the carrying of television lighting
equipment and installation of such equipment” portion of arti-
cle I, section 1.01—the italicized portion at the end of the
above-quoted contractual bargaining unit. That language, Arbi-
trator Cooper concluded, qualified through “the specific term
‘television’ . . . the more general terms ‘videotape’ and ‘au-
dio/visual,’ suggesting [the parties] were seeking to draw a
distinction between the two categories of work.” For, she con-
tinued, “there would be no need specifically to reference televi-
sion lighting if television lighting were already included in the
more general reference earlier in” section 1.01 to “lighting
equipment.” In short, “the parties understood the Union’s ju-
risdiction over television equipment to be limited to lighting
SFX TARGET CENTER ARENA MANAGEMENT, LLC 729
equipment,” leaving other television-related projection, video-
tape, etc., work outside the contractual bargaining unit. “I
therefore find that the explicit language of Section 1.01 does
not grant the Union jurisdiction over television support work
other than the handling of television lighting equipment,” Arbi-
trator Cooper concluded. Even as to that work, however, her
conclusion was not absolute.
Both in connection with upgrading the arena’s power supply
and the handling of television equipment and cabling used in
connection with televising WFSC, she stated that the Union
argued that it had “performed television support work (other
then lighting) for . . . three WCW Monday Night Nitro TNT
professional wrestling events.” (Footnote omitted.) Because
those wrestling events had all occurred after WFSC, the arbitra-
tor concluded that “they cannot define what was customary at
the time of the WFSC.” Nonetheless, the fact that union-
represented employees had done that work is some indication
that stagehands whom it represented were not excluded, in
practice, from doing at least some “television support work
other than the handling of television lighting equipment.” No
clear demarcation line is revealed by the evidence presented
during this proceeding.
Furthermore, Arbitrator Cooper also pointed out that Ogden
Entertainment did “not dispute that pulling electrical cable from
a generator supplied by a musical or other act is within the
Union’s jurisdiction, as was the case in the wrestling events.”
(Footnote omitted.) In addition, she noted that “the running of
cable from a disconnect to lights or sound” was work that
Ogden Entertainment acknowledged to be embraced by the
historical bargaining unit. All else aside, these portions of her
decision show that determinations regarding the historic stage-
hand bargaining unit are ones that should be approached with a
scalpel, rather than a meat ax.
Fourth, as must be apparent from what has already been said,
the need for stagehands at Target Center Arena was not an on-
going, daily one; need arose only whenever an event was to be
staged and presented there. Moreover, numbers of stagehands
needed varies from event to event. Less would be needed for a
graduation, for example, than for an ice show or circus.
“They’ll vary from one or two up to 130,” testified stagehand
and Union Business Agent Matt Rice. Nevertheless, there
seems to have been a certain continuity in identities of stage-
hands who worked at Target Center Arena for Ogden Enter-
tainment and, then, Aramark Entertainment.
Article I, section 1.02 of both the 1990–1993 and 1997–2000
collective-bargaining contracts provided that, “Whenever the
Employer needs employees to perform any work as outlined in
Section 1.01, the Union shall exclusively furnish such employ-
ees.” Of course, only Ogden Entertainment had been an em-
ployer-party to those contracts. However, it is undisputed that,
during its brief 3-month tenure as arena manager, Aramark
Entertainment had followed the provisions of the 1997–2000
contract, including, so far as the record shows, the hiring hall
provisions of section 1.02. In consequence, for over a decade
there had been a common source of stagehands for work per-
formed at Target Center Arena, though their numbers varied
from event to event staged and presented there, as might the
types of skills needed for different types of events. Neverthe-
less, there likely was an ongoing identity of many of the stage-
hands working there from event to event.
According to Rice, there were approximately 1400 persons
registered on the Union’s referral or dispatch list. From that
pool, the Union dispatched stagehands in response to requests
made by Ogden Entertainment and, then briefly, to Aramark
Entertainment, as well as to other employers with whom the
Union has collective-bargaining contracts: at Excel Center,
Orchestra Hall, State and Orpheum Theaters, for example. Of
course, were the Union to exhaust the referral list before again
dispatching a once-dispatched stagehand, then there would be a
variance in identities of stagehands dispatched over the course
of a year’s events at Target Center Arena. However, exhaus-
tion of the list is not the Union’s practice.
No one disputed Rice’s testimony that “we don’t rotate all
the way through, we just--each event you start over at the top of
the list,” when referring stagehands for calls. Thus, subject to
events elsewhere and individual skills, the same stagehands
were being dispatched to Ogden Entertainment and, then, to
Aramark Entertainment prior to September 21. Even as to vari-
ances in individual stagehands’ skills, moreover, those possess-
ing the same skills likely were dispatched regularly to Target
Center Arena whenever their particular skills were required in
connection with events being staged and presented at the arena.
That would follow from the Union’s start-at-the-top procedure
followed for each dispatch-request. Even so, there is one ca-
veat, based upon what has already been said, that must be con-
sidered in connection with that start-at-the-top dispatch proce-
dure.
The Union is party to 14 collective-bargaining contracts.
Apparently, it is the exclusive source of stagehands under each,
or at least most, of those contracts. Thus, over the course of
any calendar year, it would be dispatching stagehands to more
than one site, whenever events are being staged and presented
at more than one location where the Union has a contract cover-
ing stagehands. In those situations, testified Rice, if particular
stagehands were already working at one of those sites, “and a
show comes in from the Target Center we skip over those peo-
ple. We don’t move them out of another job.” Given that fact,
there is at least an inherent potential for variance among identi-
ties of stagehands working at Target Center Arena over the
course of a calendar year, depending on the number of differing
events being staged and presented at various sites covered by
the Union’s collective-bargaining contracts with employers of
stagehands at those sites.
Yet, there has been no showing that, over the course of time,
there had been a significant number of situations where a call
was made for Target Center Arena at a time when union-
dispatched stagehands, who ordinarily were dispatched to that
arena, were already working at other sites covered by one or
more of the Union’s collective-bargaining contracts. Common
sense dictates that there must have been at least some such
situations. But, there is no showing that they are significant in
number. And there is no showing that, whenever that had oc-
curred, stagehands dispatched to Target Center Arena had not
been ones who had worked there before, in response to prior
calls. In fact, no one contested Rice’s estimate that, for Target
Center Arena, “probably the first 100 people [on the referral
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
list] would be repeat employees.” As a result, over time, there
had been a relatively high identity of stagehands dispatched to
the arena, in response to calls placed with the Union by Ogden
Entertainment and, then briefly, by Aramark Entertainment,
though some variances in numbers and identities takes place
event-by-event over the course of any calendar year.
D. Respondent Becomes Manager for Target
Center Arena
On September 21 Respondent succeeded Aramark Enter-
tainment as manager of Target Center Arena. As such, it was
manager of same arena at the same location as had been
Aramark Entertainment and, before it, Ogden Entertainment.
Its work involved the same types of events—basketball and
hockey games, wrestling matches, concerts, etc.—as had been
the fact when the arena manager had been Aramark Entertain-
ment and, before it, Ogden Entertainment. The arena’s cus-
tomers—whether viewed as the public attending events at the
arena or, alternatively, the producers of events being staged and
presented there—were of the same type as when the arena had
been managed by Aramark Entertainment and, before it, Ogden
Entertainment. It hired, and for almost the entire first year
employed, as its day-to-day manager, Jack Larson, assistant
executive director of operations, as had occupied that position
for Aramark Entertainment and, before it, for Ogden Enter-
tainment.
Even before becoming the arena’s manager, Respondent had
obviously given thought to how it intended to conduct opera-
tions. By letter to Rice, dated September 18, Respondent gave
notice that it had “entered into a contract to assume the man-
agement of the Target Center on September 21, 2000.” The
letter continues by stating that Respondent “will need to hire
personnel to perform stagehand work at the arena, and it is
interested in negotiating a collective bargaining agreement with
your union. We will consider and respond to any contract pro-
posals that you offer. In the meantime, we will continue to
look to your organization for stagehands to perform work at the
Target Center.” Inasmuch as Respondent offers to negotiate a
collective-bargaining agreement and invites proposals from the
Union, its September 18 letter essentially recognizes the Union
as the bargaining agent for stagehands whom it would be em-
ploying at Target Center Arena. Respondent does not contend
to the contrary.
That probably is not a particularly surprising course—
voluntary recognition—for Respondent to have followed, given
the circumstances of employing stagehands in the Twin Cities
area. So far as the evidence shows, Respondent, though a na-
tional entertainment company, as pointed out in subsection B
above, was apparently not prepared to portage stagehands from
other locations to Target Center Arena each time that an event
was to be staged and presented there. Indeed, given the rela-
tively short duration of each event, such a course would have
been impractical, at least so far as the record shows. Further,
there is no evidence that any pool of local stagehands existed,
other than ones registered with the Union, from which Respon-
dent could draw to supply its need for stagehands in connection
with staging and presenting events at Target Center Arena.
Thus, while its September 18 letter states that Respondent “will
hire and utilize such stagehands [dispatched by the Union from
its referral list] only when [Respondent] decides that it is neces-
sary,” there is no evidence sufficient to infer that Respondent
had contemplated obtaining any significant number of stage-
hands, for the arena’s events after September 21, from sources
other than the Union’s referral list.
The September 21 letter continues by stating that it “sets
forth the terms and conditions of employment under which
[Respondent] will hire such stagehands,” but adds that stage-
hands’ “work will be performed under the terms and conditions
of employment set forth in the Union’s expired collective bar-
gaining agreement with Ogden, as clarified by this letter.” That
said, however, Respondent did announce some changes in its
September 18 letter—changes that allegedly narrowed the
scope and composition of the historical bargaining unit, as set
forth in the 1990–1993 and 1997–2000 collective-bargaining
contracts:

The Company intends to hire such stagehands to perform the
following work: (1) the installation, operation, dismantling
and rigging of temporary and permanent sound equipment,
lighting equipment, band gear, temporary staging, properties,
scenery, drops, and drapery; (2) fork-lift operations; (3) the
loading of trucks carrying equipment described in this para-
graph; and (4) other duties incidental or related to the prepara-
tion or rendition of events, including the carrying of television
lighting equipment and installation of such equipment.

Larson denied expressly that it had been Respondent’s intention
to take any projection screen work away from Union-
represented stagehands. Nevertheless, asked if the September
18 letter made “changes . . . to what had been the recognition
clause under the expired Ogden agreement,” Larson conceded,
“Yes, there was,” and he further acknowledged that the letter
made “some changes in Section 1.01 regarding recognition.”
More specifically, Larson testified that, “Regarding projector
screens, projection equipment, videotape equipment and any
related audio/visual equipment was taken out.” No question,
therefore, that from the outset Respondent eliminated that por-
tion of the historical bargaining unit which stated, “projector
screens, projection equipment, videotape equipment and any
related audio/visual equipment.” That change was an already
implemented one. And that was not the sole portion of the unit
eliminated as a result of the September 18 letter. Respondent
does not contest that also removed was the “wardrobe” portion
from the historical bargaining unit.
As to “wardrobe,” Respondent contends that its elimination
had been inadvertent—that it never intended to remove the
wardrobe portion of the historical bargaining unit. In fact, re-
moval of that classification from the bargaining unit served no
purpose in connection with Respondent’s explanation for re-
moval of the projection, videotape, and related audio/visual
equipment portion of the historical bargaining unit description.
To the contrary, it is uncontested that, when the omission was
brought to its attention, Respondent promptly explained that
omission of wardrobe had been inadvertent and, then, promptly
restored that classification to its subsequent proposals. It would
be difficult to attribute bad faith bargaining to a party for a
mistake. The mistaken omission had no adverse effect upon the
SFX TARGET CENTER ARENA MANAGEMENT, LLC 731
parties’ ensuing negotiations, so far as the evidence reveals.
Therefore, I shall recommend that the allegation pertaining to
omission of wardrobe, from the September 18 letter and initial
bargaining, be dismissed.
Insofar as projection, videotape, and related audio/visual
equipment are concerned, their omission from the September
18 work-enumeration did not escape the Union’s notice. In an
undated letter, seemingly sent on September 22, Rice stated that
he was “not sure [of] the intent of your statements in your let-
ter,” but that “all work as described in Article 1.1 [sic] is to be
done by IATSE Local 13 and only Local 13.” Counsel for
Respondent replied, by letter dated September 25. He stated
that Respondent was not adopting the expired 1997–2000 col-
lective-bargaining contract between the Union and Ogden and,
moreover, asserted that Respondent would hire stagehands
dispatched by the Union “only when the Company decides that
it is necessary, not when the Union decides that it is necessary.”
In that letter, counsel makes no mention of the bargaining
unit. But, he did suggest five October dates for conducting
negotiations, a suggestion that further reinforces Respondent’s
earlier voluntary recognition of the Union as bargaining agent
for the stagehands who would be working at Target Center
Arena.
Eventually the parties agreed to meet on October 25. In an-
ticipation of that meeting, under cover letter dated October 23,
Respondent transmitted to the Union “a binder that includes”
several documents: a copy of the expired 1997–2000 collective-
bargaining contract between the Union and Ogden; “a ‘red-
lined’ document that compares the expired agreement to the
terms and conditions of employment that are currently in ef-
fect” (emphasis added); Respondent’s “proposal for a new
collective bargaining agreement”; “a red-lined document that
compares [Respondent’s] proposal to the terms and conditions
of employment that are currently in effect” (emphasis added);
and, copies of certain correspondent already exchanged be-
tween Respondent and the Union.
The “red-lined documents,” referred to in the immediately
preceding paragraph, omit from the bargaining unit the phrase
“projector screens, projection equipment, videotape equipment
and any related audio/visual equipment,” from the bargaining
unit description of article I, section 1.01. Also deleted in its
entirety is article I, section 1.05, the provision added to the
1997–2000 contract to correct the dispute that had arisen during
filming of the Nordstrom’s commercial, as described in subsec-
tion C above. The underscored “currently in effect” portion of
Respondent October 25 make plain that Respondent was not
inviting bargaining about deletion of “projector screens, projec-
tion equipment, videotape equipment and any related au-
dio/visual equipment” from the historical bargaining unit.
Rather, that phrase makes plain that, even before commencing
negotiations with the Union, Respondent had actually imple-
mented a change in that bargaining unit. Indeed, Respondent
freely concedes as much. For example, during cross-
examination, Respondent was satisfied with an affirmative
answer elicited from Rice—“Yes”—in response to the question
about Respondent’s October 23 proposal having been “created
after the initial terms and conditions were implemented by”
Respondent. (Emphasis added.)
During the October 25 bargaining session, Rice testified,
“[b]asically we didn’t want to discuss changing the recognition
of the [U]nion,” and “we basically refused to negotiate the rec-
ognition.” Larson agreed that Rice “indicated that he didn’t
want any change to Section 1.01, that we’d be taking work
away if we did that,” though Rice had not made “any reference
to any specific work that he was talking about.” Given the
evidence reviewed in this and the immediately preceding two
paragraphs, there can be no doubt that Respondent had actually
changed the historical bargaining unit even before commencing
negotiations with the Union. There is no room for any argu-
ment that Respondent had been doing no more than simply
attempting to bargain about a change in that historical bargain-
ing unit.
By letter to the Union dated November 28, Respondent ad-
vanced the first of two modifications that it would offer to that
already-implemented change in the bargaining unit. It contin-
ued to regard “projector screens, projection equipment, video-
tape equipment and any related audio/visual equipment” as no
longer in the bargaining unit for which it had recognized the
Union as the exclusive collective-bargaining representative.
But, in that letter, it proposed adding “projector screens, projec-
tion equipment, videotape equipment and related audio visual
equipment for display to the entire live audience during the
course of a show’s performance.” Under that proposal, there-
fore, the bargaining unit would become, in pertinent part:

employees that perform the functions customarily within the
jurisdiction of the Union, including, by way of illustration but
not limitation, the installation, operation, dismantling and rig-
ging of temporary and permanent sound equipment, lighting
equipment, band gear, temporary staging, properties, scenery,
drops and drapery; fork-lift operation; wardrobe; projector
screens, projection equipment, videotape equipment and re-
lated audio visual equipment for display to the entire live au-
dience during the course of a show’s performance; the load-
ing and unloading of trucks carrying equipment described in
this Section 1.01 and various other duties incidental or related
to the preparation or rendition of events, including the carry-
ing of television lighting equipment and installation of such
equipment.

Thus, Larson explained, the underscored and bold-faced addi-
tion would pertain to the video- screen-operation, but only to
the extent that screens were being used to enhance shows for
live audiences in the arena.
The Union continued to oppose any change in the historical
bargaining unit’s description. For example, Rice testified that
during meetings on January 3 and 4, the Union had “refused to
discuss any of the recognition,” though there was movement
“with other issues, wages, benefits, pensions, . . . rigging,” but
“we refused to discuss Article [I].” Mediation was requested
by Respondent during the January 4 meeting. But, the parties
stipulated that, during an ensuing meeting with a mediator,
neither side changed its position concerning the unit. Follow-
ing that meeting, Larson invited Rice to lunch, in an effort to
break what was becoming, if it had not already become, an
impasse in the negotiations. During that meeting, testified
Rice, without contradiction, Larson had been “willing to make
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
concessions on premium time provisions and that kind of stiff if
we would make concessions in the recognition,” but Rice was
not willing to do so.
Larson took a second stab at modifying its already-
implemented unit change, in a letter to Rice dated February 1,
2001. He proposed that “[t]he parties specifically incorporate
the arbitration decision of Arbitrator Laura Cooper . . . into the
Agreement for purposes of determining certain work that is not
within the Union’s jurisdiction.” Then, Respondent “may, in
the future, assign such work to the Union,” and “also may sug-
gest that clients of the Target Center utilize Union members
and the Union referral system for such work,” with the under-
standing that “the Union’s performance of such work shall not
transform such work into the Union’s jurisdiction,” and that the
Union would make no claim that such work was “a custom or
practice or, in any other way, restricts [Respondent’s] rights
under Article 1.02 [sic].”
In that letter Larson also offered to submit to disputes resolu-
tion, following discussions between the parties, whether par-
ticular productions can be regarded as “locally originated and
small-in-scope attraction[s].” Finally, he proposed that when-
ever work at the arena was to be “performed by persons work-
ing for other than” Respondent—apparently the category of
work covered by article I, section 1.05 of the 1997–2000 con-
tract in response to the Nordstrom’s dispute, but deleted by
Respondent from its proposals—“such persons shall be paid no
less that the compensation (wages plus economic cost of bene-
fits) paid to employees pursuant to the Agreement,” accompa-
nied by provisions designed to verify such payments.
By letter dated February 9, 2001, Respondent, in effect, re-
newed those proposals made in Larson’s letter of February 1,
2001. The Union continued to rebuff Respondent’s efforts to
contractually-change the historical bargaining unit. However, it
does not dispute Larson’s testimony that, “as a result of imple-
mentation” (emphasis added) of the September 18 changes, its
members had not lost any work. In fact, Larson agreed that the
Union had not made any claim since November 28 that there
had been any loss of work by stagehands whom it represented.
Inherently, that situation raises an eyebrow about why Respon-
dent made the unit changes that it had admittedly made by Sep-
tember 18. Moreover, it is not clear whether the Union would
have lost work after November 28, had Respondent not been
attempting to protect itself from any remedial backpay order as
a result of failure to apply existing terms and conditions of
employment to persons which it was excluding from the his-
torical bargaining unit.
II. DISCUSSION
As stated in section I.A., supra, Respondent denies that it is a
successor-employer to Aramark Entertainment and, before it,
Ogden Entertainment. In fact, there is one aspect of its re-
placement of those employers, as manager of Target Center
Arena, which could provide some question as to successor
status. But, as will be seen, that aspect is not significant in the
factual setting provided here.
“The overriding policy of the [Act] is ‘industrial peace.’
Brooks v. NLRB, 348 U.S. at 102,” the Supreme Court reaf-
firmed in Fall River Dyeing & Finishing Corp., 482 U.S. 27, 38
(1987). As the Court made plain in that decision, that policy is
of no less concern whenever there has been a change in the
employing entity. “If the employees find themselves in essen-
tially the same jobs after the employer transition and if their
legitimate expectations in continued representation by their
union are thwarted, their dissatisfaction may lead to labor un-
rest.” (Citation omitted.) 442 U.S. at 43–44. To avoid that, the
Court highlighted the importance of “presumptions of [ongo-
ing] majority support” (at 38), extended under the Act to in-
cumbent collective-bargaining representatives. “The upshot of
the presumptions is to permit unions to develop stable bargain-
ing relationships with employers, which will enable the unions
to pursue the goals of their members, and this pursuit, in turn,
will further industrial peace.” 442 U.S. at 38–39.
Those presumptions of continued majority support for a his-
torical bargaining agent, and the bargaining obligations existing
as a consequence of them, are “not limited to a situation where
the union in question has been recently certified. Where . . . the
union has a rebuttable presumption of majority status, this
status continues despite the change in employers” (442 U.S. at
41), so long as the new employer is a successor to its predeces-
sor under the Act. After all, “[v]oluntary recognition is a fa-
vored element of national labor policy.” NLRB v. Broadmoor
Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978). “Bargaining
obligations are the same whether the union is certified by the
Board or voluntarily recognized by the employer.” (Citations
omitted.) NLRB v. Hudson River Aggregates, Inc., 639 F.2d
865 (2d Cir. 1981).
Careful reading of the Courts opinions in Fall River Dyeing
& Finishing supra, and in NLRB v. Burns Security Services,
406 U.S. 272 (1972), as well as in Golden State Bottling Co. v.
NLRB, 414 U.S. 168 (1973), leave no doubt that successorship
determinations are governed, in general, by examination of the
comparative employing enterprises and, secondly, by examina-
tion of the comparative employee complements. Here, there
can be no question that, during 2000, there had been a continu-
ity of employing enterprise, from Ogden Entertainment to
Aramark Entertainment to Respondent, at Target Center Arena.
All three managed the same facility in the same location. They
all managed presentation and staging of the same types of
events—basketball and hockey games, wrestling matches and
ice shows, and concerts and circuses, etc. They all dealt with
the same producers, or types of producers, of those events. All
of those events were staged and presented to audiences consist-
ing of the general public though, to be sure, different segments
of the public might attend one type of event, but not another.
The same individual, then-assistant executive director of opera-
tions, Jack Larson, successively supplied day-to-day manage-
ment for Ogden Entertainment, then for Aramark Entertainment
and, finally for Respondent.
Respondent has pointed to no aspect of Target Center Arena
operations that were changed after it began managing opera-
tions there for Minneapolis Community Development Agency.
Therefore, a preponderance of the evidence shows that there
was continuity of employing enterprise for the Target Center
Arena manager throughout 2000: from Ogden Entertainment to
Aramark Entertainment to, finally, Respondent.
SFX TARGET CENTER ARENA MANAGEMENT, LLC 733
A somewhat more complicated situation could have been
presented by the factor of comparative employee complements.
The ordinary successor situation is one where a given comple-
ment of employees has worked day-by-day, week-by-week for
the alleged predecessor and, then, the alleged successor hires an
employee-complement that works day-by-day, week-by-week
for it. Thus, identity of employee-complement can be ascer-
tained by simple comparison of who worked before the change
in employer, with the identities of whoever began working for
the successor. In turn, that supplies a ready answer to the ques-
tion of whether or not a majority of a substantial and represen-
tative complement of the alleged successor’s employees had
been employees of the alleged predecessor.
Here, however, there is no ongoing employment of stage-
hands at Target Center Arena. They are employed there only
whenever an event is staged and presented at the arena. In
between events, at least so far as the record shows, no stage-
hands are employed there. So, stagehands’ employment at the
arena is irregular, sometimes being more frequent—whenever a
series of events are scheduled back-to-back-to-back—while
being less frequent during periods when only a relatively mini-
mal number of events are scheduled during a given time period.
Furthermore, from event to event, the numbers of stagehands
will vary, such that a relatively large number of stagehands will
be needed for some events, but not for others.
That situation could have become further complicated by the
fact that stagehands are dispatched to Target Center Arena from
a referral list consisting of approximately 1400 registrants.
Usually, someone referred from such a list can, again, have
his/her name registered for another referral only by re-
registering at the bottom of the list, after having completed the
job to which referred. So, ordinarily such referral lists are ex-
hausted before any particular registrant can again be referred.
Were that procedure followed here, for example, any given
stagehand would not again be referred to Target Center Arena
until all stagehands above him/her, at the time of re-registering,
had been dispatched to jobs. Moreover, given that the Union
has contracts with 14 employers, all of whom seemingly utilize
the Union’s referral list for their stagehands, a re-registered
employee would not be assured of another referral to the same
employer as the one to whom he/she had previously been dis-
patched, depending on the scheduling of events by each one of
those 14 employers.
In fact, existence of referral from a hiring hall presents an
inherent unique potential twist. Registrants cannot under the
Act be confined to union-members where a hiring hall is the
exclusive source of employees for employers contractually-
bound to resort to that hall for new hires. Indeed, since an ex-
clusive hiring hall is the only means for employees to obtain
employment with employers contractually-obliged to utilize
that hall, registration there does not necessarily mean that the
registrant even wants to be represented by the union operating
the hall. Rather, registration at an exclusive hiring hall can be
inferred to mean no more than that the registrant wants to work
and, accordingly, registers as one means of obtaining a job.
The considerations enumerated in the preceding three para-
graphs could present potential difficulty when evaluating the
factor of identity of employee-complement in situations where
employees are obtained from an exclusive hiring hall for jobs
which irregularly occur, which vary in numbers of employees
needed on a job-by-job basis, and which are of short-term dura-
tion. In the circumstances presented here, however, that situa-
tion need not be addressed and can be left for consideration on
a later day.
At the outset, Respondent has raised no issue concerning on-
going support for the Union by stagehands dispatched to events
at Target Center Arena after September 21. That is, it has not
asserted any doubt regarding the desires of those employees for
continued representation by the Union, much less shown lack
of continuing support of the Union by a majority of them.
Thus, the considerations raised two paragraphs above are not
ones that need be addressed in the circumstances presented
here. So far as the evidence shows, at least a majority of the
stagehands who worked at Target Center Arena for Respondent
continued to desire representation by the Union. Certainly,
there is no evidence showing that a majority of them, working
on any one event or working on the totality of events staged
and presented since September 21, did not want continued rep-
resentation by the Union. In fact, as discussed further below,
Respondent voluntarily recognized the Union as the exclusive
collective-bargaining representative of stagehands working for
it at Target Center Arena—an action that obliterates completely
any challenge to the Union’s representative status among
stagehands working there.
Beyond that, the fact that an alleged predecessor and an al-
leged successor have regularly drawn their employees from the
same common pool of employees, even though particular em-
ployees might not be working on all or even most projects for
both employers, is inherently some indication of continuity of
employee complement. After all, employees from that com-
mon pool of employees will, over time, “find themselves in
essentially the same jobs after the employer transition,” Fall
River Dyeing & Finishing Corp. v. NLRB, supra, 482 U.S. at
43–44. For, as concluded above, Respondent operated at Tar-
get Center Arena as the same employing entity as had Aramark
Entertainment and, before it, Ogden Entertainment. Stagehands
dispatched to the arena before and after September 21 per-
formed the same work, at the same location, for the same pub-
licly-presented and -staged events, under the same day-to-day
management. No change in any of those factors has been
shown to have occurred after Respondent replaced Aramark
Entertainment—nor, for that matter, after Aramark Entertain-
ment replaced Ogden Entertainment.
From that premise, it follows that, even had the exact same
stagehands not been dispatched throughout 2000 for every
event, or even most events, at Target Center Arena, the fact that
all of them came from a common pool of registrants would
naturally lead all, or at least the majority of, stagehands in that
pool to continue expecting that they would be represented by
the Union whenever working there. Thus, no less than in situa-
tions where an identical majority of the alleged successor’s
employees had been employed by the predecessor, if the pool
of registrants’ “legitimate expectations in continued representa-
tion by their union are thwarted, their dissatisfaction may lead
to labor unrest.” Id. Such employee-unrest naturally under-
mines the very industrial peace sought by the overriding policy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
of the Act. Id., 482 U.S. at 38. Given those considerations, one
should not lightly conclude that no successorship can occur
whenever employment in a particular industry is performed by
employees dispatched from a common pool of employees, on
an event-by-event or project-by-project basis, instead of there
being a set number of employees, whose identities are the same
when the new employer commences operations as they had
been under the old employer. In any event, however, it is not
truly necessary to resolve that pristine question, given two con-
siderations present in the instant case.
First, Respondent admits, in its brief, that the Union’s
“members had performed all video screen work historically
performed since Respondent’s assumption of Target Center
operations, and continued to perform all such work afterward.”
Moreover, as pointed out in section I.C., above, it is uncon-
tested that, under the Union’s start-at-the-top dispatching pro-
cedure, the first 100, of the 1400 total, people registered on its
referral list had been repeatedly referred to Target Center
Arena, whether managed by Ogden Entertainment, Aramark
Entertainment or Respondent. Thus, even given disparities in
numbers and skills of stagehands required for staging and pres-
entation of particular events at the arena, over time the same
stagehands returned there to work, event after event. Just as it
is presumed under the Act that already-represented employees
of an employer continue to support continued representation by
an incumbent bargaining agent, so, also, it can be presumed that
those approximately 100 regularly-returning employees would
continue to support representation by the Union and, beyond
that, would continue to support employment under terms and
conditions set by collective-bargaining between the Union and
their employer, whether it be Ogden Entertainment, Aramark
Entertainment or Respondent. Certainly, labor unrest could
result were that more-specific group of 100 regularly-
dispatched stagehands to discover that “their legitimate expec-
tations in continued representation by their union [were being]
thwarted, Id., 482 U.S. at 43–44.
Second, ordinarily a successor is confronted with a demand
for recognition by an incumbent bargaining agent. That did not
occur here because, as pointed out in section I,D., supra, from
the outset Respondent voluntarily recognized the Union. Thus,
in its September 18 letter, it gave notice that it was interested in
negotiating a collective-bargaining contract with the Union and
invited the latter’s proposals. Later, it suggested five possible
October dates for bargaining and, in fact, did meet with the
Union on one of those dates, after having submitted to the Un-
ion its own proposals for a collective-bargaining contract. Sub-
sequent bargaining sessions occurred during 2000 and through-
out early 2001. Given those facts, it would be difficult to con-
clude other than that Respondent had extended voluntary rec-
ognition to the Union. The absence of a demand for recogni-
tion by the Union, of itself, does not undermine that conclusion.
“Voluntary recognition is a favored element of national labor
policy.” NLRB v. Broadmoor Lumber Co., supra. Underlying
its letter of September 18, Respondent seemingly recognized
that the vast majority of its stagehands would be dispatched to
Target Center Arena by the Union. It has not contended—
much less, shown—that a majority of those post-September 18-
dispatched stagehands no longer desired representation by the
Union. In such a context, it would be absurd—virtually Byzan-
tine—logic to conclude that the absence of a bargaining de-
mand by the Union somehow prevents Respondent’s voluntary
recognition from being accorded the natural weight to which it
is entitled under the Act.
In sum, a preponderance of the evidence establishes that
there had been a substantial continuity of the enterprise, when
Respondent succeeded Aramark for production of operations at
Target Center Arena. Moreover, a preponderance of the evi-
dence establishes that there was a substantial identity of stage-
hands dispatched to and employed at the arena from Ogden
Entertainment to Aramark Entertainment to Respondent. In
fact, Respondent followed the course that the Act expects suc-
cessor-employers to follow: it accepted its successorship status
by voluntarily recognizing the Union, even before the latter had
a chance to demand recognition. However, its recognition of
the Union was limited.
As set forth in subsection I,C., supra, the historical bargain-
ing unit had included “installation, operation, dismantling, and
rigging of . . . projector screens, projection equipment, video-
tape equipment and any related audio/visual equipment.” But,
from the outset, Respondent refused to continue including in
the unit the projection, videotape, and related audio/visual
equipment portion of that historical unit, as described in section
I,D., supra. Now, that was a significant step for an employer to
take under the Act. “Units with extensive bargaining history
remain intact unless repugnant to Board policy or interfere with
rights guaranteed by the Act.” (Footnote omitted.) P. J. Dick
Contracting, 290 NLRB 150, 151 (1988). After all, bargaining
history is “evidence of natural groupings of employees,” Inter-
national Assn. of Tool Craftsmen v. Leedom, 276 F.2d 514, 516
(D.C. Cir. 1960), cert. denied 364 U.S. 815, and perpetuation of
such historical “natural groupings” advances the policy of in-
dustrial stability and industrial peace.
That conclusion is no less applicable whenever one employer
succeeds another as the employer of employees who have been
represented in a historical bargaining unit. That is, “mere
change in [employer] should not uproot bargaining units that
have enjoyed a history of collective bargaining unless the units
no longer conform reasonably well to other standards of appro-
priateness.” Indianapolis Mack Sales, 288 NLRB 1123 fn. 5
(1988). Accord: Trident Seafoods, Inc., 318 NLRB 738 (1995);
NLRB v. Joe B. Foods, Inc., 935 F.2d 287 (7th Cir. 1992).
Respondent has not shown any change, following September
20, that left the historical bargaining unit, existing under Ogden
Entertainment and under Aramark Entertainment, no longer
conforming to other standards of appropriateness. Nor is there
evidence of post-September 20 changes in operations and or-
ganizational structures at Target Center Arena that served to
undermine the ongoing stability of the historical bargaining
unit, arising from inclusion of “projector screens, projection
equipment, videotape equipment and any related audio/visual
equipment” in that unit. Absent such a showing, a successor
employer is not free to sort through a historical bargaining unit,
picking and choosing to what extent it will continue recogniz-
ing an incumbent bargaining representative.
It should escape the notice of no one that, by modifying the
historical bargaining unit, Respondent effectively deprived
SFX TARGET CENTER ARENA MANAGEMENT, LLC 735
now-excluded employees of representation to which they are
entitled under Section 9 of the Act and, concomitantly, effec-
tively deprived those now-excluded employees from coverage
under any collective-bargaining contract eventually negotiated
with the Union. To say that their exclusion is of no conse-
quence, accordingly, is simply inaccurate, especially viewing
the changes from the now-excluded employees’ perspective.
Fall River Dyeing & Finishing Corp. v. NLRB, supra, 482 U.S.
at 43. As a result of the deletions, those employees lost their
representation and any contractual benefits that their now-lost
representative could negotiate for employees whom Respon-
dent was willing to continue including in the historical bargain-
ing unit.
It also should escape no one’s notice that what occurred here
was not simply a party’s proposal for changes in an established
bargaining unit. Parties are free to propose unit changes and to
voluntarily bargaining about them. See discussion, Bridon
Cordage, Inc., 329 NLRB 258, 264 (1999). But, parties cannot
be compelled to bargain about changes in bargaining units and,
surely, no such bargaining can be pursued to impasse. “Unit
scope is not a mandatory bargaining subject,” Bozzuto’s, Inc.,
277 NLRB 977 (1985), nor is “the composition of the bargain-
ing unit.” Newspaper Printing Corp. v. NLRB, 625 F.2d 956,
964–965 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981).
Were they mandatory bargaining subjects, “an employer could
use its bargaining power to restrict (or extend) the scope of
union representation in derogation of employees’ guaranteed
right to representatives of their own choice.” (Footnote omit-
ted.) Idaho Statesman v. NLRB, 836 F.2d 1396 (D.C. Cir.
1988). Thus, adherence to a historical and fixed bargaining
unit “is central to Congress’ purpose of stabilizing labor-
management relations in interstate commerce.” (Citation omit-
ted.) NLRB v. United Technologies Corp., 884 F.2d 1569 (2d
Cir. 1989).
Respondent points out in its brief that it had not bargained to
impasse about elimination of “projector screens, projection
equipment, videotape equipment and any related audio/visual
equipment” from the historical bargaining unit. That is quite
accurate. Instead of bargaining about elimination of that por-
tion of the historical bargaining unit, or even offering to bargain
about it, Respondent simply deleted that portion of the histori-
cal bargaining unit. Thus, as portions of Respondent’s corre-
spondence, Larson’s testimony, and a question put to Rice dur-
ing cross-examination, quoted and underscored in section I,D.,
supra—”currently in effect”, “implemented”, “implementa-
tion”—demonstrate, Respondent had already made those dele-
tions from the historical bargaining unit, before even undertak-
ing any negotiations with the Union. The unit-deletions were
unilateral. In the face of those unilateral deletions, the Union
was forced to attempt to recover representation of that portion
of the historical bargaining unit, through negotiations.
In sum, Respondent was a successor employer who recog-
nized the historical bargaining agent, but in the process unilat-
erally changed the historical bargaining unit for which that
bargaining agent had been the historical representative. In view
of the principles discussed above, such conduct violates Section
8(a)(5) and (1) of the Act. However, Respondent has advanced
several defenses, in an effort to avoid such an ultimate conclu-
sion and any remedial obligations that naturally follow as a
consequence of it.
First, pointing primarily to the Supreme Court’s decision in
NLRB v. Burns Security Services, supra, it argues that, by delet-
ing the projection and videotape portions of the historical bar-
gaining unit, it had done no more than “set initial terms on
which it [would] hire the employees of a predecessor,” which
the Court held that a successor-employer was allowed to do
under the Act. 406 U.S. at 294. However, that is not a satisfac-
tory defense to deletions from a historical bargaining unit. A
careful reading of the Court’s opinion reveals that it did not
intend, by that portion of its decision, to grant free rein for suc-
cessor-employers to sort through historical bargaining units,
picking and choosing which employees encompassed by those
units it would be allowed continued representation by their
historical bargaining agent.
The Court made clear that successor-employers would be
permitted to “set initial terms” only to the extent encompassed
by Section 8(d) of the Act. Thus, only “wages, hours, and other
terms and conditions of employment” are covered by the “ini-
tial terms” which successor-employers can set. As discussed
above, scope and composition of bargaining units are not man-
datory subjects of bargaining. That is so because unit scope
and composition are not embraced by “wages, hours, and other
terms and conditions of employment,” within the meaning of
Section 8(d) of the Act. Accordingly, the “set initial terms”
allowance of Burns does not extend to unilateral adjustments of
historical bargaining units, at least not to the extent that prede-
cessors’ operations are continuing under successor-employers.
To the contrary, the Court has held explicitly that preservation
of work traditionally performed is “[a]mong the primary pur-
poses protected by the Act,” NLRB v. Longshoremen, 447 U.S.
490, 504 (1980). It hardly promotes industrial peace to allow
successor-employers to sort and sift through historical bargaining
units of employees, whom those employers are continuing to
employ under the same circumstances, picking and choosing the
extent to which they will recognize and not recognize the histori-
cal bargaining agent as the exclusive collective-bargaining repre-
sentative of historically-represented employees.
To be sure, the Court in Burns expressed concern about
situations where “[a] potential employer may be willing to take
over a moribund business only if he can make changes in cor-
porate structure, composition of the labor force, work location,
task assignment, and nature of supervision.” 406 U.S. at 287–
288. Yet, those are subjects that are accommodated by the
meaning of “initial terms” of employment. Inherently, contin-
ued viability of the historical bargaining unit is a quite distinct
subject. There is no basis for concluding that unilateral adjust-
ments to historical bargaining units would somehow promote
revival of moribund businesses and the Court did not so hold.
In any event, the instant case does not present a situation for
addressing that consideration. So far as the record discloses,
Respondent did not “take over a moribund business” at Target
Center Arena. Indeed, there is no evidence showing that it
made any changes, including its unilateral elimination of a
portion of the historical bargaining unit, as a means of reviving
or, even, improving operations at that arena. Consequently,
there is no basis in the record for inferring—much less, con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
cluding—that there had been a need to remove “projector
screens, projection equipment, videotape equipment and any
related audio/visual equipment” from the historical bargaining
unit, to revive or improve operations at Target Center Arena.
Beyond that, there is a separate reason for concluding that
the Court’s allowance for “set[ting] initial terms” is not appli-
cable to the situation presented by the instant case. The Court
excepted from that allowance situations where “it is perfectly
clear that the new employer plans to retain all of the employees
in the unit”; it held that in such situations, “it will be appropri-
ate to have him initially consult with the employees’ bargaining
representative before he fixes [those initial] terms.” Id. As
pointed out in section I,D., above, in its September 18 letter,
Respondent gave notice that it planned to “continue to look to
[the Union] for stagehands to perform work at the Target Cen-
ter.” In fact, there is no evidence that Respondent planned to
look to any other source—hires off the Twin Cities’ streets,
temporary transfers from other locations throughout the United
States—for any significant numbers of stagehands, if any at all,
to be employed at that arena. Accordingly, as concluded above,
the vast majority, if not all, stagehands employed at Target
Center Arena by Respondent would be ones previously em-
ployed there by Aramark Entertainment and, before it, by
Ogden Entertainment. There is no evidence that would support
a conclusion that Respondent had any belief to the contrary.
Furthermore, there is no evidence whatsoever that would
support a conclusion that, chronologically, Respondent had
decided upon its unilateral eliminations from the historical
bargaining unit before it had realized that the vast majority, if
not all, stagehands that it would be hiring for arena-work would
be obtained from the Union’s referral list. To the contrary, its
willingness to continue recognizing the Union was a decision
quite obviously made because it anticipated that its primary, if
not sole, source of stagehands would be the same referral list as
had been resorted-to by Aramark Entertainment and, before it,
Ogden Entertainment. Thus, its attention to the historical bar-
gaining unit set forth in the 1990–1993 and 1997–2000 collec-
tive-bargaining contracts. In consequence, so far as the evi-
dence shows, by the time that Respondent planned and imple-
mented its elimination of the above-quoted portion from the
historical bargaining unit, it was “perfectly clear” to Respon-
dent that it would be continuing to obtain the vast majority, if
not all, of its stagehands for Target Center Arena from the Un-
ion’s referral list. That being the fact, Respondent was not
allowed by Burns to set initial terms without first conferring
with the Union and, surely, not to eliminate a portion of the
historical bargaining unit—not a subject embraced by Section
8(d) of the Act—without first obtaining the Union’s agreement
to any such elimination.
As a second defense, Respondent points to the historical bar-
gaining unit and, then, argues in essence that it had done no
more in September than remove particular work assignments—
”installation, operation, dismantling, and rigging of . . . projec-
tor screens, projection equipment, videotape equipment and any
related audio/visual equipment”—from that unit. In fact, unit
principles have evolved to the point where there is a well-
recognized distinction among the concepts of unit classifica-
tion, work assignments and union jurisdiction. See, e.g., Boise
Cascade Corp. v. NLRB, 860 F.2d 471 fns. 11, 12 (D.C. Cir.
1988); Newport News Shipbuilding Dry Dock Co. v. NLRB, 602
F.2d 73, 77–78 (4th Cir. 1979). Those distinctions cannot sim-
ply be characterized as “meaningless.” Unit classification is
not a mandatory subject of bargaining. But, work assignments
are mandatory subjects of bargaining. The circuit courts have
recognized—in fact, taken the lead in formulating—distinction
among them. As a result, problems arise where, as here, the
unit description is phrased, in whole or in part, in terms of work
performed.
In Antelope Valley Press, 311 NLRB 459 (1993), the Board
addressed those situations, holding that employers may bargain
about and insist on transferring work described in those units.
But, the Board holds, they may do so only so long as those
employers first bargain to impasse about such transfers, do not
change the unit descriptions, and, finally, do not “insist that
nonunit employees to whom the work is transferred will remain
outside the unit.” Bremerton Sun Publishing Co., 311 NLRB
467, 470 (1993). A review of the facts set forth in section I,D.,
above, disclose that Respondent engaged in conduct which
satisfied not one of those three conditions.
Respondent did not first bargain about removing “projector
screens, projection equipment, videotape equipment and any
related audio/visual equipment” from the historical bargaining
unit. Instead, from the outset during September, it admittedly
“implemented” removal of that portion of the historical bar-
gaining unit and declared that the now-reduced bargaining unit
was “currently in effect,” leaving the Union to somehow try to
recover representation of employees whom the Union had his-
torically represented. Obviously, elimination of that phrase did
operate as a change in the historical bargaining unit. Employ-
ees formerly encompassed within the bargaining unit would no
longer be guaranteed that they were included in the bargaining
unit. They would no longer be contractually-guaranteed repre-
sentation by their historical bargaining agent. They would no
longer be contractually guaranteed the benefits of any collec-
tive-bargaining contract negotiated by Respondent and the Un-
ion. They were left in the cold, as a result of Respondent’s
unilateral removal of that portion of the historical bargaining
unit which had previously covered them. Such a result “is not
conducive to industrial peace.” Fall River Dyeing & Finishing
Corp. v. NLRB, supra, 482 U.S. at 39–40.
Finally, the “implemented” removal of that portion of the
unit, so far as the evidence shows, left no room to restoration to
the bargaining unit of employees who would be performing that
work. Despite the two subsequent modifications, discussed in
section I,D., supra, and below, Respondent continued to adhere
to its already-implemented deletion of the above-quoted lan-
guage from the historical bargaining unit. So, the only terms
upon which a collective-bargaining contract could be negoti-
ated between Respondent and the Union, would be ones that
excluded that portion of the historical bargaining unit. To that
extent, Respondent was insisting that employees, historically
covered by that portion of the bargaining unit, be placed per-
manently outside of the bargaining unit.
To be sure, no evidence contradicts the evidence that, as of
the hearing date, no members of the Union had actually lost any
work, including projection and videotape equipment, and re-
SFX TARGET CENTER ARENA MANAGEMENT, LLC 737
lated work, which they had performed historically at Target
Center Arena. On the other hand, since March 7, 2001, there
has been an unfair labor practice charge pertaining to Respon-
dent’s elimination of part of the historical bargaining unit.
Even before that date, Respondent, represented by experienced
counsel, could fairly anticipate that it might be facing an unfair
labor practice charge, as a result of its unilateral elimination of
that portion of the historical bargaining unit and the Union’s
voiced opposition to that elimination. So, there is some objec-
tive basis for inferring that Respondent might well have de-
cided to proceed with care in connection with work assign-
ments embraced by the deleted portion of that historical unit.
In any event, past is not necessarily prologue. Were it to be
determined that Respondent no longer had to recognize the
Union as the exclusive bargaining agent of employees covered
by that eliminated portion of the unit, then Respondent would
be free to deal as it wished with whomever it chose to perform
that work. Those employees would become shorn of future
representation. Respondent would be free to deal individually
with them, formulating whatever employment terms and condi-
tions it chose to apply to them.
Respondent’s third argument is that it eventually did make
two modifications, described in section I,D., supra, and that
those modifications reinforce its position that it had eliminated
some of the historical bargaining unit for no reason other than
conforming the unit to what had been the practice under
Aramark Entertainment and, more particularly, under Ogden
Entertainment. But, there simply is no basis for concluding that
absolute elimination of “projector screens, projection equip-
ment, videotape equipment and any related audio/visual equip-
ment” somehow conformed the unit to practice under those two
preceding employers. Respondent has adduced no evidence
showing that, in practice, unit employees had not performed
any of that work for Aramark Entertainment and, before it, for
Ogden Entertainment.
True, the two modifications—“for display to the entire live
audience during the course of a show’s performance” and “incor-
porate the arbitration decision of Arbitrator Laura Cooper . . . into
the Agreement for purposes of determining certain work that is
not within the Union jurisdiction”—would have been legitimate
proposals for eventual modification of a historical bargaining
unit. Here, however, Respondent put the cart before the horse. It
had already eliminated that now-disputed portion of the historical
bargaining unit. In consequence, the Union was being forced to
try to recover that portion of its historical bargaining unit.
Against that background, the modifications represented no more
than an effort by Respondent to prevent the Union from achiev-
ing full recovery of representation of the historical bargaining
unit. In short, whatever modifications Respondent eventually
proposed, the context of their proposal was one in which unilat-
eral changes had already been made and the Union was being
forced to knee-pad in an effort to recover representation of em-
ployees whom it had been historically representing in a bargain-
ing unit established, until Respondent chose to unilaterally elimi-
nate portions of it.
The fact is that, even with the modifications, the evidence
will not support a conclusion that the already-implemented unit
eliminations conformed to the situation as it existed under
Aramark Entertainment and, before it, Ogden Entertainment.
No question that unit employees had not historically been per-
forming some of the disputed work whenever events were
broadcast from the arena. Yet, as Arbitrator Cooper pointed
out in her decision, Ogden Entertainment acknowledged that
stagehands in the historical bargaining unit were entitled to
“pull electrical cable from a generator supplied by a musical or
other act,” and, also, to “run[ ] the cable from a disconnect to
lights or sound,” apparently without regard to presence or ab-
sence of a television crew employed by a network or local
broadcaster.
More significantly, Arbitrator Cooper’s decision involved
only “television support work” for a single event, the 1998
WFSC. At no point did she purport to render a decision that
would apply to every possible televised or broadcast-event. To
the contrary, while she found it not relevant to the 1998 WFSC-
event, she pointed out that bargaining unit stagehands had
“brought electrical cable from an outside generator to a discon-
nect” for three WCW Monday Nitro TNT professional wres-
tling events and, in addition, for an NBA All-Star Game.
Clearly, therefore, her decision shows that there had not been a
firm and rigid demarcation line between “installation, operation,
dismantling and rigging of . . . projector screens, projection
equipment, videotape equipment and related audio/visual equip-
ment,” whenever Target Center Arena events were being broad-
cast and when they were not being broadcast. That is, the arbitra-
tion decision shows that there had not truly been a hard and fast
practice of confining that work by unit employees to situations
where only “display to the entire live audience during the course
of a show’s performance” had been involved. It further shows
that there had some situations, albeit without firm description in
the arbitration decision of precise parameters, when unit employ-
ees performed at least some of that work even when events were
being telecast or broadcast to audiences outside the arena. In
sum, even were the bargaining situation to be evaluated from the
perspective of its totality—the unilateral elimination of a portion
of the historical bargaining unit, followed by one proffered modi-
fication and, then, another—it has not been established by the
evidence that Respondent’s ultimate change, as modified, would
conform the unit to historic practice.
Respondent’s fourth argument is more practically rooted. It
pertains to the facial ambiguity of the portion it eliminated from
the historical bargaining unit and the asserted “multiplicity of
disputes over the scope of the Union’s jurisdiction” which had
been “endured” by its “predecessors.” At the outset, that argu-
ment overstates the actual history of bargaining. The record
shows that there had been no more than three disputes—the
Nordstrom’s commercial, the McDonald’s commercial, and the
1998 WFSC—over the course a decade’s bargaining relation-
ship. So relatively few a number of disputes over so relatively
prolonged period hardly seems, on its face, to rise to the level
of characterization as “multiplicity.” In fact, as described in
section I,C., supra, the circumstances leading to the Nord-
strom’s dispute were clarified by Ogden Entertainment and the
Union’s agreement to add section 1.05 to article I in their
1997–2000 collective-bargaining contract. The fact that Re-
spondent unilaterally eliminated, as well, that very section from
its proposals raises some suspicion regarding its now-advanced
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
argument that it had been attempting to do no more than clarify
the bargaining unit, for simplicity of application to operations
at Target Center Arena.
In any event, a party—be it employer or labor organiza-
tion—hardly is allowed under the Act to justify unilateral
elimination of contractual provisions, especially those describ-
ing bargaining units, on the basis of a simplicity argument.
After all, in the end, countenancing such an argument for uni-
lateral action would essentially endorse unilateral elimination
of all more-than-simply-stated provisions of collective-
bargaining contracts. Such endorsement would promote unilat-
eral action and generate the very industrial unrest that the pol-
icy of the Act seeks to prevent. When applied to historical
bargaining units, such endorsement would not only naturally
generate industrial unrest, but it would operate to deprive em-
ployees in unilaterally-eliminated unit positions of representa-
tion of their own choosing. Such a result would effectively
erase the very employee-right to choose representation which
the Act explicitly guarantees to employees.
Whenever bargaining units are ambiguous, employers and
labor organizations are afforded various avenues for eliminat-
ing or, at least, mitigating those ambiguities. They can attempt
to bargain to accomplish clarity of application, as did Ogden
Entertainment and the Union when they negotiated the addition
of section 1.05 to article I of their 1997–2000 collective-
bargaining contract. They can petition the Board for unit clari-
fication whenever a dispute arises. They can pursue their dis-
putes to arbitration, as did Ogden Entertainment and the Union
regarding the 1998 WFSC. True, arbitration can be expensive
and time-consuming. But, there is no basis for concluding on
this record that, over its decade-long representation of Target
Center Arena stagehands, the Union had been disposed to resort
to ongoing arbitrations, as a means for resolving unit-related
disputes. One time in a decade is hardly a “multiplicity.” Fur-
thermore, it should not escape notice that the Supreme Court
has endorsed arbitration, as a process favored by Federal pol-
icy. See, e.g., Moses H. Cone Memorial Hospital v. Mercury
Construction, 460 U.S. 1, 24 (1983), and EEOC v. Waffle
House, Inc., 534 U.S. 279 (2002). Against that background,
unilateral elimination of a portion of a historical bargaining unit
can hardly be justified by arguing that it avoids occasional dis-
putes resolution leading to arbitration.
CONCLUSION OF LAW
SFX Target Center Arena Management, LLC has committed
unfair labor practices affecting commerce by unilaterally elimi-
nating the underscored portion of an appropriate historical bar-
gaining unit of:

employees that perform the functions customarily within the
jurisdiction of the Union, including, by way of illustration but
not limitation, the installation, operation, dismantling, and
rigging of temporary and permanent sound equipment, light-
ing equipment, band gear, projector screens, projection
equipment, videotape equipment and any related audio/visual
equipment; temporary staging, properties, scenery, drops and
drapery; fork-lift operation; wardrobe; the loading and
unloading of trucks carrying equipment described in this Sec-
tion 1.01 and various other duties incidental or related to the
preparation or rendition of events, including the carrying of
television lighting equipment and installation of such equip-
ment

represented by International Alliance of Theatrical Stage Em-
ployees Local 13, and by failing and refusing to restore that
bargaining unit to its historical scope and composition, thereby
refusing to bargain collectively with that labor organization as
the exclusive collective-bargaining representative of all em-
ployees in that appropriate historical bargaining unit, in viola-
tion of Section 8(a)(5) and (1) of the Act. However, no viola-
tion of the Act occurred as a result of the inadvertent omission
of “wardrobe” from that unit in its initial description and pro-
posal describing the collective-bargaining unit.
REMEDY
Having concluded that SFX Target Center Arena Manage-
ment, LLC engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and,
further, that it be ordered to take certain affirmative action to
effectuate the policies of the Act. With respect to the latter, it
shall be ordered to recognize and, upon request, bargain with
International Alliance of Theatrical Stage Employees Local 13,
as the exclusive collective-bargaining representative of all em-
ployees in the appropriate historical bargaining unit described
above in conclusions of law and, should an understanding be
reached, embody that understanding in a signed agreement.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record and pursuant to Section 10(c) of the
Act, I issue the following recommended2
ORDER
The Respondent, SFX Target Center Arena Management,
LLC, Minneapolis, Minnesota, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with Interna-
tional Alliance of Theatrical Stage Employees Local 13, as the
exclusive collective-bargaining representative of all employees
of SFX Target Center Arena Management, LLC in the appro-
priate bargaining unit set forth in paragraph 2(a) below, by
eliminating “projector screens, projection equipment, videotape
equipment and any related audio/visual equipment” from that
unit.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SFX TARGET CENTER ARENA MANAGEMENT, LLC 739
(a) On request, bargain in good faith with International Alli-
ance of Theatrical Stage Employees Local 13 as the exclusive
collective-bargaining representative of the employees in the
following appropriate bargaining unit and, if an understanding
is reached, embody the understanding in a signed agreement:

All employees of SFX Target Center Arena Management,
LLC who perform the functions customarily within the juris-
diction of International Alliance of Theatrical Stage Employ-
ees Local 13, including, by way of illustration but not limita-
tion, the installation, operation, dismantling and rigging of
temporary and permanent sound equipment, lighting equip-
ment, band gear, projector screens, projection equipment,
videotape equipment and any related audio/visual equipment,
temporary staging, properties, scenery, drops and drapery;
fork-lift operation; wardrobe; the loading and unloading of
trucks carrying equipment described in Section 1.01 of the
1997-2000 collective-bargaining contracts between the above-
named Union and Ogden Entertainment Services, Inc. and
various other duties incidental or related to the preparation or
rendition of events, including the carrying of television light-
ing equipment and installation of such equipment.

(b) Within 21 days after service by the Region, post at its
Minneapolis, Minnesota office and place of business, and at
Target Center Arena, copies of the attached notice marked
“Appendix.”3 Copies of the notice on forms provided by the
Regional Director for Region 18, after being signed by its duly
authorized representative, shall be posted by SFX Target Center
Arena Management, LLC 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 to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, it has gone out of business, or
no longer has a contract for managing events staged and pre-
sented at Target Center Arena, SFX Target Center Arena Man-
agement, LLC shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by it at the Target Center Arena at any time since
September 21, 2000.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps it has
taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found
herein.

3 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.”
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
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT fail and refuse to bargain in good faith with In-
ternational Alliance of Theatrical Stage Employees Local 13 as
the exclusive collective-bargaining representative of all em-
ployees in the appropriate collective-bargaining unit set forth
below, by eliminating “projector screens, projection equipment,
videotape equipment and any related audio/visual equipment”
from that unit. The appropriate bargaining unit is:

All employees of SFX Target Center Arena Manage-
ment, LLC who perform the functions customarily within
the jurisdiction of International Alliance of Theatrical
Stage Employees Local 13, including, by way of illustra-
tion but not limitation, the installation, operation, disman-
tling, and rigging of temporary and permanent sound
equipment, lighting equipment, band gear, projector
screens, projection equipment, videotape equipment and
any related audio/visual equipment, temporary staging,
properties, scenery, drops and drapery; fork-lift operation;
wardrobe; the loading and unloading of trucks carrying
equipment described in Article I, Section 1.01 of the 1997-
2000 collective-bargaining contract between that Union
and Ogden Entertainment Services, Inc. and various other
duties incidental or related to the preparation or rendition
of events, including the carrying of television lighting
equipment and installation of such equipment.

WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed you
by the Act.
WE WILL, on request, bargain collectively in good faith with
International Alliance of Theatrical Stage Employees Local 13
in the appropriate collective-bargaining unit set forth above
and, if an agreement is reached, embody that agreement in a
written document and sign it.

SFX TARGET CENTER ARENA MANAGEMENT, LLC