368 NLRB No. 26 National Hot Rod Association and International Alli
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NOTICE: This opinion is subject to formal revision before publication in the modified below and to adopt the recommended Order as bound volumes of NLRB decisions. Readers are requested to notify the Ex- 3 ecutive Secretary, National Labor Relations Board, Washington, D.C. modified and set forth in full below. 20570, of any typographical or other formal errors so that corrections can The judge found, and we agree, that during a union or- be included in the bound volumes. ganizing campaign, the Respondent violated Section National Hot Rod Association and International Alli- 8(a)(1) by soliciting employee grievances and impliedly ance of Theatrical Stage, Employees, Moving promising to remedy them,4 and by advising employees Picture Technicians, Artists and Allied Crafts of that they could not be rehired for the following year until the United States, its Territories and Canada, after the union election, and possibly even longer if the AFL–CIO, CLC. Cases 02–CA–185569, 22–CA– Union won. We also agree with the judge’s decision to 190221, 22–CA–192686, and 22–RC–186622 overrule the Respondent’s objections to the election.5 July 29, 2019 The judge also found that the Respondent violated Section 8(a)(1) by creating the impression that employ- DECISION, ORDER, AND CERTIFICATION OF ees’ union activities were under surveillance, and Section REPRESENTATIVE 8(a)(3) and (1) when it discharged employee Nathan BY CHAIRMAN RING AND MEMBERS KAPLAN AND Hess. For the reasons explained below, we reverse the EMANUEL judge’s decision in relevant part and dismiss these allega- On November 9, 2018, Administrative Law Judge tions. Additionally, because we find the discharge of Benjamin W. Green issued the attached decision. The Hess lawful, we sustain the challenge to Hess’s ballot. Respondent filed exceptions and a supporting brief, and We therefore certify International Alliance of Theatrical the General Counsel and Charging Party Union filed an- Stage Employees, AFL–CIO as the exclusive bargaining 6 swering briefs. The General Counsel filed limited excep- representative of the unit employees. tions and a supporting 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 exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as 3 We shall modify the judge’s conclusions of law and recommended Order to conform to the violations found, and we shall substitute a new notice to conform to the Order as modified. 4 We observe that there is nothing unlawful in the Respondent send- ing a human resources official to the workplace when its employees engage in unionizing activity to meet with employees and attempt to persuade them against unionizing. Here, however, the Respondent did 1 No party excepts to the judge’s dismissal of the allegation that the more: during the on-site meetings, Vice President of Human Resources Respondent threatened employees with unspecified reprisals by saying Marleen Gurrola asked employees for “an opportunity to fix issues,” “there are consequences” to selecting union representation. and the Respondent then followed through with its implied promise by 2 The Respondent has excepted to some of the judge’s credibility remedying employee James Dean’s per diem complaint. In these cir- findings. The Board’s established policy is not to overrule an adminis- cumstances, we agree that the Respondent violated the Act. trative law judge’s credibility resolutions unless the clear preponder- 5 In its objections, the Respondent contended that the Region’s han- ance of all the relevant evidence convinces us that they are incorrect. dling of the mail ballot election deprived eligible voters of an adequate Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 opportunity to vote. We agree with the judge that the Respondent (3d Cir. 1951). We have carefully examined the record and find no presented insufficient evidence to support its claims of Board agent basis for reversing the findings. misconduct in the handling of the mail ballot election. We note, how- In addition, some of the Respondent’s exceptions allege that the ever, that the facts of this case—namely, the difficulties encountered by judge’s rulings, findings, and conclusions demonstrate bias and preju- a few employees in timely receiving mail ballots—illustrate one reason dice. On careful examination of the judge’s decision and the entire why manual elections are, and should be, preferred. In saying as much, record, we are satisfied that the Respondent’s contentions are without however, we do not mean to suggest that a mail-ballot election was merit. inappropriate here. On May 17, 2018, counsel for the General Counsel moved to seal R. 6 On October 20, 2016, the Union filed a representation petition. Exh. 10 to protect the privacy of employee addresses. We grant this Pursuant to a stipulated election agreement, a mail ballot election was motion and order that R. Exh.. 10 be placed under seal. We also grant conducted between November 15 and 30, 2016. Following an agree- the General Counsel’s May 21, 2018 motion to correct transcript. ment of the parties regarding certain challenged ballots, the Regional In affirming the judge’s decision as modified, we do not rely on Director issued a revised tally of ballots on August 16, 2017, showing Baptista’s Bakery, Inc., 352 NLRB 547 (2008), or Flamingo Las Vegas 35 votes in favor of the Union and 34 against. Hess’s ballot was the Operating Co., LLC, 359 NLRB 873 (2013), cited by the judge, as last remaining challenged ballot. Because all of the challenged ballots those decisions were invalidated as a result of the Supreme Court’s have now been resolved, with no change to the August 16, 2017 revised decisions in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), and tally of ballots, the Union has prevailed in the election. Accordingly, NLRB v. Noel Canning, 573 U.S. 513 (2014), respectively. we will issue a certification of representative. 368 NLRB No. 26 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DISCUSSION the production crew. During this meeting, Gurrola dis- cussed the organizing campaign and stated, “I know that A. The 8(a)(1) impression of surveillance allegation some of you have been approached and talked to about The Respondent is a racing association that stages drag perhaps going in the union.” The judge found that, by race events, including the Mello Yello series for profes- Gurrola’s comment at the September 16 meeting, the sional drag-racing drivers at the highest skill level. The Respondent violated Section 8(a)(1) by creating the im- Mello Yello series consists of 24 events a year. Prior to pression among employees that their union activity was 2016, the Mello Yello series was produced for television under surveillance. Specifically, the judge found Gur- by ESPN. In 2016, the Respondent began televising the rola’s statement unlawful because she did not explain Mello Yello racing series in-house, led by Executive how the Respondent acquired this information. For the Producer Kenneth Adelson. Adelson hired Producer following reasons, we reverse the judge’s finding. Peter Skorich, Technology Executive Michael Rokosa, In determining whether an employer has unlawfully and Director Jim Sobczak to round out the leadership of created the impression of surveillance, the Board asks the in-house production team. “whether employees would reasonably assume from the 7 In August 2016, Union Representative John Culleeny statement in question that their union activities have been heard that the Respondent’s production employees were placed under surveillance.” United Charter Service, 306 dissatisfied and began to conduct an organizing cam- NLRB 150, 150 (1992). In applying this test, a relevant paign. Culleeny held an organizing meeting on August 6 consideration is whether the employer’s statement re- in Seattle, Washington, attended by six employees, all of veals detailed knowledge of specific activities. Id. at whom signed union authorization cards. Culleeny held 151. Gurrola’s statement did not do so. The statement another organizing meeting during the weekend of Au- disclosed a general awareness of organizing activities, gust 18–21 in Brainerd, Minnesota, and two meetings not knowledge of who had been talked to or approached, between August 31 and September 5 in Indianapolis, or when, or what was said. Cf. ibid. (finding that man- Indiana. The meetings in Washington and Minnesota ager created an impression of surveillance when were held offsite. The meetings in Indianapolis were he “went into detail about the extent of the [union] activi- held at the hotel where production employees were stay- ties and the specific topics [employees] discussed”). ing, along with some members of management. Moreover, the record indicates that employees were On Sunday, September 4, Creative Director Brian Stoll open about the existence of an organizing campaign. informed Adelson that he had overheard the production Hess testified that he spoke about the Union in the pro- employees at his hotel talking about a union. Adelson duction truck and television compound, places where informed Rokosa, who had heard the same information. managers and supervisors were present along with poten- Rokosa informed the Respondent’s General Counsel, tial unit employees. And during the Indianapolis race Linda Louis. At subsequent races, the Respondent’s weekend, the employees attended union meetings at the Vice President of Human Resources, Marleen Gurrola, same hotel where some of the Respondent’s supervisors engaged in discussions and gave speeches urging em- were staying. In fact, the employees held one such meet- ployees not to unionize. She met with groups of em- ing in a room adjacent to the hotel bar and were seen ployees, asked whether they had any complaints, re- leaving the meeting by Director Sobczak.9 quested that employees “give us an opportunity to fix The employees were not conducting their union activi- issues,” and wrote down their responses.