American Girl Place New York

National Labor Relations Board - Board Decisions

Aug 13, 2010

355 N.L.R.B. 479 (N.L.R.B. 2010)

AMERICAN GIRL PLACE NEW YORK
355 NLRB No. 84
479
American Girl Place, Inc. d/b/a American Girl Place
New York and Actors’ Equity Association. Case
2–CA–37791
August 13, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On August 10, 2007, Administrative Law Judge Ste-
ven Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and cross-exceptions
with a supporting brief. The Charging Party filed cross-
exceptions and a brief in support of its cross-exceptions
and in opposition to the Respondent’s exceptions. The
Respondent filed a reply brief and an answering brief to
the General Counsel’s and Charging Party’s cross-
exceptions.
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,2 and conclusions, as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.
The judge found, among other things, that the Respon-
dent unlawfully suspended the process of considering a
wage increase for its employees. For the reasons set
forth below, we adopt the judge’s finding of a violation,
but we will modify the judge’s remedy to accord with the
circumstances of the case.
The facts are fully set forth in the judge’s decision.
Several weeks before any union activity in 2006, adult
actors performing in shows staged at the Respondent’s
New York retail store spoke to their supervisor, Artistic
Director Heather de Michele, about an increase in the
wage paid actors for each show. De Michele said she
would bring the matter to her superiors’ attention. De
Michele immediately addressed the actors’ request with
her supervisor, Director of Theatre Scott Davidson. Sev-

1 The parties have excepted to the judge’s failure to consider GC
Exhs. 8, 9, and 10 in his decision, based on his finding that they are
arguably subject to the attorney-client privilege and the attorney work-
product doctrine. We find it unnecessary to pass on those exceptions.
We have reviewed the disputed exhibits, and they would not materially
alter our understanding of the facts.
2 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
eral phone conversations and emails were exchanged
among de Michele, Davidson, and Director of Human
Resources Christine Warman. Those communications
explored possible increases in the per show rate of the
adult actors. De Michele’s last email message to David-
son and Warman concerning the wage increase, dated
May 7, contained a chart listing the “current” and the
“proposed change” in the rate. In the “proposed change”
category, each of the actors was listed as receiving a $6-
per-show raise.
Meanwhile, on May 3, the Union sent the Respon-
dent’s president, Ellen Brothers, a letter requesting rec-
ognition as the representative of the Respondent’s adult
actors at the New York store. Around the first or second
week of May, Employee Relations Manager Dawn
Levenick became aware of the Union’s request. About
the same time, Warman informed Levenick that there
were ongoing discussions concerning a wage rate in-
crease for the actors in New York. Levenick instructed
Warman not to increase the rate until legal counsel was
obtained. Levenick also set up a management team and
secured counsel. The management team decided to post-
pone any more discussion or decisions about a wage in-
crease until the matter of representation was resolved. It
also decided that de Michele and Director of Human Re-
sources for New York Patricia Keating would meet with
the adult actors to inform them of the decision to post-
pone further consideration of an increase.
De Michele and Keating met with the New York adult
actors on June 18. During this meeting, de Michele told
the actors that the Respondent had been “completing the
process” of the wage increase when the Union appeared
on the scene. De Michele further stated that even though
the wage increase had been previously discussed and
agreed on, it was not final due to one missing signature,
and that once the Respondent received the letter from the
Union, everything was put on hold. Neither of the Re-
spondent’s officials gave any assurance to the actors that
the process of considering a wage increase would resume
regardless of the outcome of the Union’s campaign. Nor
did they say that the process had been halted for the sole
reason of avoiding the appearance of a bribe to influence
the employees’ choice on union representation. To the
contrary, de Michele referred to the union T-shirts the
actors were wearing and said, “now that we see where
your loyalties lie, we are no longer going to be able to
give you a raise.”
Based on these facts, the judge found that the Respon-
dent’s suspension of its consideration of the wage in-
crease was unlawful, because the Respondent acted in
response to the Union’s request for recognition, cited
employee support for the Union as the reason, and gave
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
no assurances to the actors that consideration of the wage
increase would resume regardless of the outcome of the
Union’s campaign. The judge also found that, in the
absence of a final signature, the proposed wage raise
could still have been denied in its entirety. Accordingly,
his remedy directed the Respondent to resume the proc-
ess of considering a wage increase and, if it decided that
it would have granted an increase, to make whole all
employees who would have received it.
For the reasons set forth in the judge’s decision, we
agree that the Respondent violated Section 8(a)(1) of the
Act by suspending consideration of the wage increase.3
However, as discussed below, we will modify the judge’s
remedy in order to better place the employees in the posi-
tion they would have been in absent the Respondent’s
unfair labor practice.
Although the Respondent had not completed every
administrative step needed to implement the wage in-
crease, Artistic Director de Michele, who was specifi-
cally designated to communicate with the actors about
this matter, informed the actors that the increase had
“been agreed upon” but had not been finalized due to one
missing signature.4 In these circumstances, we find that
the evidence warrants the presumption that, absent the
employees’ protected activities and the Respondent’s
unlawful conduct, the Respondent would have approved
and granted the actors a $6-per-show increase. We there-
fore find that the appropriate remedy is for the Respon-
dent to place the employees in the position they would
have been in absent the unfair labor practice, including
granting them the backpay they would have earned had
the wage increase been awarded, unless the Respondent
can demonstrate, at the compliance stage of this proceed-
ing, that it would not have granted that increase, but in-
stead would have granted a wage increase of a different
amount or no increase at all.5 Accordingly, we shall
amend the judge’s remedy as set forth below.6

3 We find it unnecessary to pass on whether the suspension also vio-
lated Sec. 8(a)(3), because it would not materially affect the remedy.
4 Several employees who attended the meeting with de Michele testi-
fied specifically concerning her statements, and the contemporaneous
notes taken by two of the employees confirm the same.
5 Contrary to our colleague’s view, providing make-whole relief for
the Respondent’s violation of Sec. 8(a)(1) in these circumstances is
consistent with Board precedent. See, e.g., G.C. Murphy Co., 223
NLRB 604, 610 (1976). Similarly, Board precedent supports placing
the burden on the Respondent to show that it would not have granted
the $6 per show increase. See Planned Building Services, 347 NLRB
670, 676 (2006) (placing burden on respondent employer in successor-
ship-avoidance case to demonstrate, in compliance proceeding, that it
would not have agreed to monetary provisions of predecessor’s collec-
tive-bargaining agreement). Here, as in Planned Building Services,
placing the burden of proof on the Respondent is “both equitable (the
[employer] is the wrongdoer) and practical (the [employer] has superior
access to the relevant evidence).” Id. at 676 (footnote omitted). In
AMENDED REMEDY
Having found that the Respondent unlawfully sus-
pended its consideration of the $6-per-show wage in-
crease, we shall order the Respondent to resume process-
ing that increase. The Respondent shall make whole all
employees for any increase they would have received
had the $6-per-show wage increase been implemented at
the time its consideration was unlawfully discontinued,
unless the Respondent establishes in compliance pro-
ceedings that it would have granted a wage increase of a
different amount or that it would not have granted a wage
increase at all. Backpay shall be computed as prescribed
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).

addition, “it is appropriate to utilize the compliance proceeding ‘as a
means of tailoring the remedy to suit the individual circumstances’” of
this case. Id. at 676 fn. 25, quoting Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 902 (1984).
In Member Schaumber’s view, Planned Building Services is inappo-
site. The violations in that case were the unlawful avoidance of a suc-
cessorship obligation, based on virulent antiunion animus, by refusing
to consider or hire the employees of the predecessor, and the subse-
quent improper unilateral imposition of new terms and conditions of
employment. The Board held there that the appropriate analytical
analysis was Wright Line and that the successor was guilty both of
8(a)(3) and (5) violations, the latter because of the unilateral changes.
In such a situation, “the Board’s traditional remedy is to ‘restore as
nearly as possible the situation that would have prevailed but for the
unfair labor practices,’” which obviously requires restoration of prior
terms and conditions of employment. See id. at 674 (quoting State
Distributing Co., 282 NLRB 1048 (1987)). By contrast, the violation
being found here is simply an 8(a)(1) failure to continue to consider a
possible wage increase. Thus, a make-whole restoration remedy is
inappropriate.
6 Member Schaumber concurs in finding that the Respondent’s sus-
pension of consideration of a wage increase was unlawful. However,
he agrees with the judge’s finding that, absent a final approval, the
Respondent could still have decided not to give any raise. He rejects,
as unsupported by the record as a whole, his colleagues’ characteriza-
tion of the status of the wage increase at the time of de Michele’s
statement. As the record shows, the wage increases were merely pro-
posed by de Michele, and had not been vetted or approved by upper
management. Nothing in the email or other documentary exchanges
with management regarding the proposals suggests that approval of the
wage proposals was merely an administrative matter or that the increase
would have been fixed at $6. De Michele may have exaggerated to
make her point, and we have found a violation based on her statements,
but that does not convert her representation into a fact. Thus, he dis-
agrees with his colleagues’ amended remedy, which shifts the burden to
the Respondent of proving in compliance that it would not have given a
raise in the amount recommended by de Michele. Member Schaumber
would instead adopt the judge’s remedy, which placed the burden on
the General Counsel to prove in compliance that the amount of in-
crease, if any, decided by the Respondent on completion of the resumed
wage consideration process would have been different but for the
unlawful suspension of the process.
AMERICAN GIRL PLACE NEW YORK 481
ORDER
The National Labor Relations Board orders that the
Respondent, American Girl Place, Inc. d/b/a American
Girl Place New York, New York, New York, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that they did not receive
wage increases because they supported the Union.
(b) Threatening its employees with more onerous
working conditions if they selected the Union as their
collective-bargaining representative.
(c) Suspending its process of considering a wage in-
crease for its employees because of the Union’s presence.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Resume processing the wage increase for unit em-
ployees that was under consideration on May 7, 2006.
(b) Make whole any employees who would have re-
ceived the wage increase but for the suspension of con-
sideration of that increase, in the manner set forth in the
amended remedy section of this decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-

7 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.”
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 18,
2006.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated 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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT tell you that you did not receive wage in-
creases because you supported Actors’ Equity Associa-
tion (the Union).
WE WILL NOT threaten you with more onerous working
conditions if you select the Union as your collective-
bargaining representative.
WE WILL NOT suspend our process of considering a
wage increase for you because of the Union’s presence.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL resume processing the wage increase that was
under consideration on May 7, 2006.
WE WILL make you whole for any loss of earnings you
may have suffered by reason of our suspension of that
process.

AMERICAN GIRL PLACE, INC. D/B/A AMERICAN
GIRL PLACE NEW YORK

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
Olga C. Torres, Esq., for the General Counsel.
Michael F. McGahan, Tracyee Klein, and Donald S. Krueger,
Esqs. (Epstein, Becker & Green, P.C.), of New York, New
York, for the Respondent.
Samantha Dulaney and Nicole Perez, Esqs. (Spivak, Lipton,
Watanabe, Spivak, Moss & Orfan, LLC), of New York,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge and an amended charge filed by Actors’ Equity Associa-
tion (Union) on July 25 and September 21, 2006, respectively, a
complaint was issued on November 30, 2006, against American
Girl Place, Inc., d/b/a American Girl Place New York (Respon-
dent or Employer).
The complaint, as amended at the hearing, alleges essentially
that on about June 18, 2006, the Respondent, in violation of
Section 8(a)(1) of the Act (a) told its employees that they did
not receive wage increases because they supported the Union,
(b) threatened its employees with more onerous working condi-
tions if they selected the Union as their collective-bargaining
representative, and (c) made statements equating support for the
Union to disloyalty to the Respondent. The complaint also
alleges that on about a date between May 1 and June 18, 2006,
the Respondent, in violation of Section 8(a)(1) and (3), denied a
wage increase for its employees and, as an alternative thereto,
the Respondent suspended its process of considering a wage
increase for its employees because they assisted the Union and
engaged in concerted activities.
The Respondent’s answer denied the material allegations of
the complaint and on May 21–23, 2007, a hearing was held
before me in New York, New York. On the entire record, in-
cluding my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Wisconsin corporation having a facility
located at 609 Fifth Avenue, New York, New York, has been
engaged in the business of the retail sale of girls’ goods and
apparel. Annually, the Respondent derives gross revenues in
excess of $500,000 and purchases and receives at its New York
facility goods and materials valued in excess of $5000 directly
from suppliers located outside New York State. Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent operates a retail store in Manhattan in which
it sells products relating to girls ages 9 to 12, and operates a
theater in which live productions are presented by adult and
child actors. The actors include “primary” actors who are the
main performers and “cover” actors commonly known as un-
derstudies.
A show entitled American Girls Review employing eight
adult actors (including four primary actors and four cover ac-
tors) was performed for most of 2006 until September 4, 2006.1
It was replaced by a production called Circle of Friends which
began on about September 22, 2006, and was still playing at the
time of the hearing.
Each of the actors has an employment agreement with the
Respondent which provides that the primary actor must per-
form in a minimum of 7 shows per week in weeks with 8 to 11
shows scheduled, and 75 percent of all shows scheduled in all
other weeks. The cover actors perform the remaining 25 per-
cent of shows, and other shows the primaries do not perform
due to absence from work for vacation, sick, or personal rea-
sons. The agreement also provides for:

(a) The actor’s per show pay. During the time at issue
here, the starting rate for the actors was $44.00 per show.
Primary actors Matthew Sanders and Stephanie Tennill
earned $44.00 per show. Calandra Hackney earned
$46.00, and Roseanne Ciparick earned $48.00.
(b) An hourly rate paid for rehearsals which is the
same amount paid for sick pay, personal time off, and va-
cation pay. The hourly rate was based on the show rate for
the individual actor and varied from $13.79 to $17.60 per
hour.
(c) A $200 per week stipend payment for 26 specified
“slow” weeks between September and May when no per-
formances are held, totaling $5200 per year.
(d) Other benefits including eleven paid holidays,
401(k) if eligibility requirements were met, vacation, sick
leave, life insurance and accidental death and disability,
short term and long term disability, tuition reimbursement,
stock investment plan, health, dental and vision benefits,
employee discount, and transit benefit program.

At least since 2004, the actors received a pay raise of $2 per
show per year. For example, the contract between the Em-
ployer and actor Roseanne Ciparick for the period March 2004
to March 2005, provided for a per show rate of $44. The con-
tract for the period March 2005 to March 2006, provided for a
per show rate of $46. The contract beginning March 2006 (the
show and Ciparick’s employment ended in September 2006),
provided for a per show rate of $48. As Ciparick testified,
contractually she could expect no further per show raise during
the term of those contracts other than what was provided for in
those agreements.
2. The Union contacts the Respondent and the actors
request an increase in show pay and additional weekly
stipends in June 2006
In early February 2006, Flora Stamatiades, the Union’s na-
tional director of organizing, sent a letter to the Employer’s
Wisconsin headquarters addressed to its president, Ellen Broth-

1 All dates herein are in 2006, unless otherwise stated.
AMERICAN GIRL PLACE NEW YORK 483
ers. The letter stated that inasmuch as the Respondent pre-
sented live theatrical performances at locations in New York,
Chicago, and expected to do so in Los Angeles, it should enter
into a national collective-bargaining agreement with the Union
covering the actors performing in such productions. Stama-
tiades offered to meet with Brothers. On February 13, Stama-
tiades sent another copy of the letter to Brothers.
On February 24, Menzi Behrnd-Klodt, in-house counsel to
the Respondent wrote Stamatiades saying that the Employer
was not interested in signing an agreement with the Union. In
March, the Union met for the first time with the employees of
the Respondent.
The four primary actors usually had monthly meetings with
their immediate supervisor, Heather de Michele, the Respon-
dent’s artistic director. In late March 2006, they met with her
and discussed the upcoming summer schedule and stipends.
As set forth above, a $200 per week stipend was given for
weeks in which there were no shows. No stipends were given
in the months of June through August. At the March meeting,
the actors told de Michele that usually June is a slow month for
the production, and they requested a $200 stipend for 3 weeks
in June. They also asked for a raise in the per show rate.2 De
Michele told the actors that she would communicate their re-
quests to “corporate” and let them know the result. According
to Ciparick, de Michele said that a pay raise would be “diffi-
cult.”
Within a few days, de Michele addressed the actors’ requests
with her supervisor, Scott Davidson, the director of the three
theaters. Several phone conversations and emails between
them sought “ways that we might be able to remedy the con-
cerns.”
At that time, the starting per show rate was $44 and the ac-
tors’ per show rates ranged from $44 to $48. De Michele’s
email of April 29 to Davidson outlined the cost if the actors
received per show wages of $50 or $54. The email ended with
the following recommendation: raise the per show rate to $50
and pay a $200 per week stipend for the entire year—52 weeks
at $200 per week, or $10,400. At that time, the actors received
a $200 stipend for only 26 weeks, or $5200. It was contem-
plated that the stipend would be limited to the primary actors
and not the covers, but de Michele and Davidson did not dis-
cuss whether any pay raise would be so limited. She asked for
Davidson’s thoughts on the matter. Davidson wrote back the
same day asking her to put her memo into a spreadsheet for a
meeting with Christine Warman, the director of human re-
sources for retail stores.
On May 2, de Michele sent an email to Davidson and War-
man outlining “pay options and figures” which they discussed
by phone later that day. The outline listed the total amount of
money payable to the actors assuming 470 average adult pri-
mary actor performances, a stipend of $5200 per year, and pay

2 Whether Ciparick alone approached de Michele requesting an addi-
tional stipend for 3 weeks in June as testified by de Michele, or all four
actors raised that matter and the issue of pay raises in a meeting with de
Michele as they testified, need not be resolved. It is clear from de
Michele’s testimony that all four actors raised concerns regarding their
pay rate and an additional stipend for June and that she addressed these
“concerns” with her superiors.
per show at $44 (their current starting rate), and at “proposed”
increases of $50 and $54 per show. During their conversation,
Warman approved an additional weekly stipend of $200 for 3
weeks in June for the four primary actors because that period of
time was slow, and because Warman believed that granting it
was “fair, reasonable” and constituted a small expenditure. De
Michele immediately informed Matthew Kiely, the theater
manager, that the additional 3-week stipend for June was ap-
proved.3
The actors testified that when de Michele informed them that
they would be receiving their requested $200 stipend for the
first 3 weeks in June, she said that she was still speaking to
“corporate” about a pay raise and that no decision had been
made as to that matter. According to employee Sanders, de
Michele said that the requested pay raise was “under considera-
tion.”
On May 3, Stamatiades sent another letter to Respondent’s
president, Brothers, informing her that a majority of the adult
actors at the Manhattan location designated the Union as their
collective-bargaining representative. She requested an oppor-
tunity to meet with her and demonstrate such support.
On May 4, de Michele sent an email to Davidson and War-
man outlining the rehearsal rates and show rates for the child
and adult actors in the theaters located in New York, Chicago,
and Los Angeles. She took an existing document which
showed the current rates for those cities and inserted rates of
$50, $52, and $54 to the current New York rates which were
$44, $46, and $48. She included cities other than New York in
order to present an “overview” of the various rates nationally.
De Michele testified that when she sent this email there had
been no approval to make changes in the actors’ pay rates, and
that she had no authority to approve wage raises for actors. She
noted that nothing in the document states whether the raises
apply to primary or cover actors.
On May 7, de Michele sent an email with an attached chart
to Davidson and Warman. The chart listed the current and
“proposed” changes in per show rate and stipends for the pri-
mary and cover actors for the period June 1 to September 4,
2006, when the American Girls Review production ended, and
for the period September 22 to December 31, 2006, during the
run of the Circle of Friends show.
In the “proposed change” category for the then current
American Girls Review, the starting per show rate was listed as
$50, up from $44, and each of the primary actors was listed as
receiving a $6 per show increase. Thus, Ciparick’s proposed
per show rate was listed as $54, raised from $48, Hackney was
$52, increased from $46, and the rates for Sanders and Tennill
were $50, up from $44. The additional stipend increase of
$200 per week for 3 weeks in June was also listed. Similar $6
raises were provided for the named cover actors.

3 In this respect, I cannot credit the actors’ testimony that they were
informed in late April that the additional stipend was approved. De
Michele’s testimony concerning the timing of the approval and support-
ing emails support a finding that they were informed of the additional
stipend in early May. It is unlikely that de Michele would have told
them of the additional stipend in advance of its approval.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
Identical $6 per show raises for the “primary” and “cover”
actors were also set forth for the Circle of Friends show,
scheduled to open on September 22. However, the names of
those actors were not set forth in the chart. No additional sti-
pend was proposed. With respect to both shows, although not
set forth on the chart, the rehearsal rates for all the actors would
have increased with the increases in the per show rate.
De Michele’s email described the chart as Davidson’s and
Warman’s requested “breakdown of current and proposed adult
actor expenses. The two lines at the bottom . . . show that even
with the changes enacted, we will come in $3000 ahead at the
end of the year! Good news! I have a meeting (previously
scheduled) with the adult actors Thursday [May 11] and would
love to share any information then, if possible.”
Dawn Levenick, the Respondent’s employee relations man-
ager, testified that in early to mid-May, she was told by Super-
visor Sandy Anderson that the Union sent a letter dated May 3
stating that it sought to represent the adult actors in the Re-
spondent’s New York store. Levenick denied being aware of
the February correspondence between the Union and Respon-
dent’s counsel, Behrnd-Klodt, until after the May 3 letter was
received.
Levenick stated that at about the time she learned of the Un-
ion’s May letter she was told by Director of Human Resources
Warman that the Respondent had an “idea” to change the per
show rate paid the actors. Levenick advised Warman not to act
on that idea until legal counsel was obtained. Levenick gave
such advice because she knew that changing the terms and
conditions of employees’ employment while “under an active
organizing campaign” violates the law.
Levenick retained legal counsel and pursuant to counsel’s
advice and recommendations decided to “just postpone any
more discussions or decisions about any changes in the show
rate until the matter of representation was resolved.” She made
this decision because the Respondent did not want to give the
“appearance to our actors that we were trying to persuade them
to not join Equity because they were going to get a benefit or a
pay increase.”
Not having received a response to her May 3 letter, Stama-
tiades wrote again to President Brothers on May 17 and 31,
requesting a meeting. On June 13, Levenick wrote to Stama-
tiades addressing the May 3 letter. The letter advised that the
Respondent did not believe that the Union represented a major-
ity of employees in an appropriate unit and suggested that the
Union file a petition for an election with the Board.
Separately, Levenick directed de Michele and Pat Keating,
the Respondent’s director of human resources, to meet with the
actors and tell them that the Respondent would “postpone any
further consideration of any pay increase or change in the show
rate until the matter of representation was resolved.” Levenick
testified that no further action was taken with respect to the
“proposal” for a per show wage increase—“it’s just been sitting
out there doing nothing.”
3. The Union’s T-shirt campaign and the June 18 meeting
On June 14, Stamatiades met with primary actors Ciparick,
Hackney, Sanders, and Tennill and told them that a “T-shirt
campaign” would be the next step in seeking recognition. T-
shirts were distributed to them which prominently displayed the
Union’s name and logo and the words “Support Equity Theatre
UNITE.” They were instructed to, and did enter and leave the
theater in a group wearing the shirts, and also wore the shirts
during vocal warmups in the theater. The Respondent’s offi-
cials acknowledged observing them wearing the shirts.
The actors were advised that a meeting would be held on
June 18, which would be attended by de Michele and Keating.
Stamatiades was notified by the employees that a meeting with
Keating, who they never met, was unprecedented. She advised
them to take notes at the meeting.
Employees Ciparick, Hackney, Sanders, and Tennill wore
their union shirts at the June 18 meeting with de Michele and
Keating. Hackney testified that at the meeting de Michele told
them that the Union sent the Respondent a letter on May 3, and
that the Employer replied that it was not interested in signing a
union contract at that time, but instead suggested that the Union
seek an election with the Board. Hackney and Sanders stated
that de Michele told them that the Employer prided itself on
maintaining a safe, nonunion work environment.
Hackney, essentially corroborated by Ciparick and Sanders,
testified that de Michele said that “if Equity were to come in
everything would change. There would be a lack of flexibility.
There would be a lot of rigidness toward things such as covers
having to be at every show. There would be a lack of flexibil-
ity with having other jobs. And there would also be a lack of
flexibility with such issues such as vocal rest.” Ciparick quoted
de Michele as saying “if we were to be an Equity theater, we
would not be able to be as flexible with certain issues such as
vocal rest—it would be a more rigid working environment.”
Ciparick testified that de Michele used examples of the Re-
spondent’s flexibility such as being able to grant vocal rest, and
that the covers did not have to be present all the time. How-
ever, Hackney denied that de Michele used examples of how
the Employer had been flexible in the past in accommodating
the employees’ other jobs and their need for vocal rest. She
quoted de Michele as saying that “if Equity came in there
would be lack of flexibility and rigidness” in that covers would
have to be there at every show, a lack of flexibility with other
jobs, and with vocal rest. Hackney denied that de Michele said
that the Union’s rules would “get in the way” and cause a lack
of flexibility, but admitted that de Michele mentioned that such
changes would occur “if American Girl had an Equity con-
tract.”
Ciparick stated that perhaps de Michele said that the work-
place would be a “more rigid working environment” if a mid-
dleman was involved. However, Hackney did not recall de
Michele discussing the Union organizing the employees in the
context that it would be a “middleman” coming between man-
agement and the employees.
Hackney further stated that de Michele gestured toward their
union shirts and said that “now that we see where your loyalties
lie, we are no longer going to be able to give you that raise that
we had discussed earlier.” Hackney’s written note, which she
acknowledged was more accurate than her recollection, was
identical to Sanders’ testimony regarding de Michele’s com-
ment after gesturing to their union shirts—“we’re not going to
be able to offer you the pay raise we discussed earlier,” thus
AMERICAN GIRL PLACE NEW YORK 485
omitting the phrase to which she testified: “we are no longer
going to be able to give you that raise that we had discussed
earlier.” Hackney also stated that de Michele said that although
the wage raise was discussed and “agreed upon,” the matter
was out of her hands and everything has been put on hold.
Hackney and Sanders denied that de Michele said that consid-
eration of the raise was deferred pending the resolution of the
representation matter.4 Sanders testified that de Michele said
that the Employer would be “unable to offer us the pay raise
that they had discussed . . . earlier.” Ciparick testified that de
Michele told them “we’ve been informed by our counsel that
we can no longer offer you (or can’t give you) the show pay
increase because it would appear on our part like bribery.”
Ciparick added that de Michele said that the Employer was
“ready to sign off on the budget increase, which would include
the show pay increase for the adult actors, and that they were
one signature away” at which point the Employer received the
letter from the Union and she then contacted counsel who told
her that to avoid the payment appearing to be bribery, the show
pay increase should not be given.
Employee Sanders then interjected, as follows: “Let me get
this straight. Because we are interested in joining the Union,
you’re not going to be offering us this raise that you were con-
sidering?” As de Michele began to answer, Sanders quoted
Keating as interrupting, as follows. “Guys, you have to realize
that if we were to make changes in your contract at this point, it
would appear to be bribery or manipulation on our part.” Sand-
ers stated that de Michele said that the raise “was something
that had been agreed upon . . . it was one signature short of
being finalized” or “approved.” He denied that de Michele said
that the raise was “put on hold.” De Michele was quoted as
telling the actors that the Employer was advised by counsel that
the raise “would not be implemented because they were con-
cerned it would look like they were bribing the actors.”
De Michele told the actors that all the contractual payments
due them would be paid. She then asked the actors to raise any
concerns they had. Hackney offered that they did not make a
“livable” wage because of the high cost of living in New York.
Keating asked them what they believed an appropriate pay rate
would be for an actor appearing in the Respondent’s theater, or
a theater for young audiences. Hackney replied that such an
actor would earn up to $800 per week. On this point, Sanders’
testimony differed from Hackney’s. He quoted de Michele as
saying that the salary would probably be the same. Sanders
agreed, but noted that the actors would not be required to do 20
or more shows per week.
The actors mentioned that they did not receive the stipend
due them 2 weeks before, and that Tennill did not receive her
regular pay the past week. Keating said that she would look
into it. The payments which were due were made thereafter.
Hackney testified that although she and the other three actors
knew that their employment with the Respondent would be
ending in early September 2006, when their show ended, she

4 Hackney also answered a two-part leading question from the Re-
spondent’s counsel which implied that de Michele told the actors that
consideration of the raise was deferred, but I credit Hackney’s specific
denial that de Michele made that statement.
was concerned with de Michele’s comments that there would
be less flexibility with second jobs and vocal rest if the Union
was successful in representing them. Thus, the issues of “vocal
rest” and flexibility with a second job were important to her for
the remainder of her tenure there. She explained that because
the actors use their voices extensively in their jobs they must
take time off from work, sometimes weeks at a time, to rest
their voices. In addition, they needed to have second jobs to
support themselves. At hearing, the actors conceded that there-
after there were no changes in their contract, work environ-
ment, or flexibility for vocal rest or a second job.
De Michele’s account of what she told the employees at the
meeting is recounted here based on a compilation of her (a)
written notes taken before the meeting in which she rehearsed
what she would say. She stated that those notes were not “ver-
batim” of what she actually said but followed the “general
idea” of what she expected to say (GC Exh. 8), (b) the notes she
wrote as to what occurred at the meeting written the same day
or the day following the meeting (GC Exh. 9), and (c) typewrit-
ten notes of the handwritten notes of what occurred at the meet-
ing (GC Exh. 10). The Respondent’s arguments that these
documents were privileged from disclosure pursuant to the
attorney-client privilege and/or work product doctrine will be
discussed below.
De Michele told the four actors that the Union informed the
Respondent that it sought to represent them. She said that the
Employer told the Union that it did not believe that it needed a
union coming between it and the actors inasmuch as it offers a
safe, fair working environment, and further believed that the
Union’s involvement would make the work place more “rigid.”
De Michele told the employees that the Employer advised the
Union that if it wanted to pursue the matter it could ask the
Board to hold an election. De Michele then said that she was
aware that they had spoken about changing their per show pay
rate, and as she was “completing the process this all came up.”
She noted that although it was clear by their wearing the union
shirts where their loyalties are, the Respondent could not make
any unscheduled changes in their contract because it could look
like it is trying to sway them or buy their vote.
De Michele told them that she brought their concerns about
pay to the Respondent’s human resources department and that
they were “in the process of being reviewed but that since it
was apparent (gesture to total group in [union] shirts) where
their loyalties were we could not follow through with any
changes to their contract as that would look as though we were
trying to buy their vote. Until this was settled we could not
make any contractual changes, but we would still, of course, be
true to anything in their current contract—annual increases,
show count bonuses, etc.” De Michele noted that since the pay
raises were “almost finalized,” but had not been “finalized” at
the time the Respondent received the Union’s letters, the pay
raises were “on hold” or “delayed” until resolution of the Un-
ion’s representation matter. She added, however, that the Re-
spondent would honor its contracts with the actors. Sanders
said “so you won’t pay us what we deserve because the [Union]
is involved?” De Michele answered that the pay raise was “al-
most finalized when all this came up.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486
Following the meeting, Hackney met with Sanders and Tennill
and they discussed together what was said. Hackney compiled
their recollections into an email which she sent to Stamatiades the
following day. Essentially the email is the same as her testi-
mony, but the email stated that regarding the pay raise, de Mich-
ele said that “even though it had been previously discussed and
‘agreed upon’ it was not finalized due to one signature that was
missing but because the letter was sent from Equity everything
has been ‘put on hold.’”
No pay increase was received by the actors pursuant to their
request. The employees engaged in a strike on August 3 and 4.
On August 10, the Union filed a petition to represent the actors,
and on November 17 an election was held.
ANALYSIS AND DISCUSSION
I. THE RESPONDENT’S ATTORNEY-CLIENT AND WORK
PRODUCT PRIVILEGE ASSERTION
Certain documents were subpoenaed from the Respondent by
counsel for the General Counsel. The Respondent asserted that
they were privileged due to the attorney-client and attorney work
product doctrines, and I examined them in camera. I ruled that
certain documents were privileged and others were not. I will
discuss those documents that I found not privileged which I di-
rected to be disclosed to the General Counsel over the Respon-
dent’s objections:
1. A 3-page handwritten document prepared by de Michele in
which she put into her own words the advice given to her by the
Respondent’s counsel on June 7 as to what to say at the June 18
meeting (GC Exh. 8). By writing the document she rehearsed her
thoughts in preparation for the meeting. She testified that her
comments at the meeting conformed generally with these notes.
In material part, the notes state that the Respondent did not be-
lieve that it needed a union coming between it and the actors, and
it believed that the Union’s involvement would make the work
place more rigid. The notes further stated that it was clear, by the
employees’ wearing the union shirts, where their loyalties are,
and that no unscheduled changes in their contract could be made
since it may appear that the Employer was trying to sway or buy
their vote.
2. Two handwritten pages of a 6-page document prepared by
de Michele consisting of her notes of what was said at the June
18 meeting written shortly after the meeting (GC Exh. 9). The
Respondent represented that de Michele took these notes at the
direction of counsel. In material part, the notes state that there
was a “potential” change in wages but since the change was not
finalized when the Union wrote to the Respondent, the matter of
a pay raise was on hold or delayed until a resolution of the matter
since it may look as if the Employer was trying to buy the em-
ployees’ votes.
3. A 3-page typewritten email prepared by de Michele con-
sisting of a summary of the notes she took at the June 18 meeting
(GC Exh. 10). She sent the document to Kim Gohata, the Re-
spondent’s in-house counsel, and to other Respondent officials.
Counsel represents that this document was created at the direc-
tion of counsel after the charge was filed on July 25. In material
part, the notes state that de Michele told the actors that since it
was apparent through their wearing the union shirts where their
loyalties were, the Employer could not follow through with any
changes to their contract as it would look like it was trying to buy
their vote. Until “this” was settled the Employer could not make
any contractual changes.
All the above documents relate to advice the Respondent’s at-
torney gave to de Michele concerning her meeting with employ-
ees on June 18. General Counsel Exhibit 8 relates to counsel’s
advice as to what she should say and reflects her “rehearsal”
notes. General Counsel Exhibit 9 is her handwritten notes taken
at the meeting at the direction of counsel, and General Counsel
Exhibit 10 is her typewritten notes of that meeting.
Central Telephone Co. of Texas, 343 NLRB 987, 988 (2004),
is particularly helpful in deciding this issue. In that case, the
employer’s attorney, Prophete, directed its official, Hindman, to
conduct an interview and take notes at the interview with em-
ployees who were suspected of improperly remaining at work
later than their usual hours upon the union’s direction. Hindman
took notes during the interview and prepared a written summary
thereof. She reported the results of the interview to Prophete.
The union requested Hindman’s investigation notes for its use in
an arbitration proceeding. The employer’s refusal to provide
them was alleged as an unfair labor practice. The Board found
no violation in the employer’s refusal to provide the notes since
they were privileged pursuant to the attorney work product doc-
trine and were prepared in anticipation of litigation.
The Respondent argues that all three documents constitute at-
torney work product since the notes were written at the direction
of counsel in anticipation of litigation, and also contends that
General Counsel Exhibit 9 should not have been disclosed be-
cause of the attorney-client privilege.
Some question may be raised as to whether General Counsel
Exhibit 8 was made in anticipation of litigation, as argued by the
Respondent, or was prepared in the ordinary course of business.
The work product privilege “protects from disclosure written
material prepared by a party or his representative in anticipation
of litigation or for trial. The strong public policy underlying the
work product doctrine is to aid the adversarial process by provid-
ing a certain degree of privacy to a lawyer in preparing for litiga-
tion.” Central Telephone, above.
Although the June 18 meeting may have been one of the regu-
larly scheduled meetings between de Michele and the actors, the
meeting itself was unusual, as recognized by the employees,
since Keating, a senior official of the Respondent was present.
By June 18, no litigation had begun and there was no testimony
that the Respondent contemplated that litigation would be
brought against it. However, it is not necessary that a lawsuit
actually have been brought. It is enough for the party to have had
a “subjective belief that litigation was a real possibility and that
belief must have been objectively reasonable.” Central Tele-
phone, above, citing Sealed Case, 146 F.3d 881, 884 (D.C. Cir.
1998). It is certainly clear that experienced labor counsel could
reasonably anticipate litigation upon de Michele’s announcement
to the employees that the raise they had requested and which they
were told was being considered could not be given or was now
on hold because of the presence of the Union.
Accordingly, General Counsel Exhibit 8, de Michele’s notes of
her conversation with counsel concerning what to say to the em-
ployees appears to contain her mental impressions and interpreta-
AMERICAN GIRL PLACE NEW YORK 487
tions of counsel’s advice as she put his advice into her own
words, and was probably privileged as attorney work product
and/or attorney client privilege.
Some question could be raised as to whether General Counsel
Exhibits 9 and 10 were privileged in that they simply contain de
Michele’s notes, essentially taken in a clerical capacity, of her
meeting with the employees consisting of what she said to the
actors and what they said to her. However, she was directed by
counsel to take those notes, she sent them to counsel for review,
and they too appear to be taken in anticipation of litigation. Cen-
tral Telephone, above.
I find that the three documents are arguably subject to the at-
torney-client privilege and the work product doctrine. Accord-
ingly, I have not relied on them in making my findings regarding
the alleged violations herein. Accordingly, although the three
documents perhaps were privileged from disclosure, I do not
believe that the Respondent has been prejudiced by their disclo-
sure to the General Counsel and their receipt in evidence. I have
not relied on them in making my findings herein.
II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) OF THE ACT
The complaint alleges that the Respondent (a) told its employ-
ees that they did not receive wage increases because they sup-
ported the Union (b) threatened its employees with more onerous
working conditions if they selected the Union as their collective-
bargaining representative and (c) made statements equating sup-
port for the Union to disloyalty to the Respondent.
All three allegations arise out of the June 18 conversation, set
forth above, as to which I credit the employee witnesses. Their
testimony about the meeting was consistent and essentially the
same. As noted, de Michele did not deny their testimony and
Keating did not testify. The test to determine whether a supervi-
sor’s statement violated Section 8(a)(1) is “whether under all the
circumstances the remark reasonably tends to restrain, coerce, or
interfere with the employee’s rights guaranteed under the Act.”
Exterior Systems, 338 NLRB 677, 678 (2002).
A. Informing Employees that They did not Receive Wage
Increases Because of Their Support for the Union
The complaint alleges that on June 18 the Respondent told its
employees that they did not receive wage increases because they
supported the Union.
As set forth above, de Michele gestured at the Union shirts
worn by the four employees and said “now that we see where
your loyalties lie” the Employer would not give them the raise
that had been discussed. Whether she said that the raise would
not be provided or that it had been put on hold or that considera-
tion of the raise was being postponed is irrelevant for a determi-
nation of this issue.
The important point is that de Michele identified the actors’
wearing of the shirts as the reason that consideration of the raise
was no longer being pursued. It was unnecessary for de Michele
to have made the connection between the shirts and the wage
raise. It was irrelevant where their loyalties lied. According to
the Respondent, consideration of the raise was being postponed
because the Union appeared on the scene. By personalizing the
matter, saying in effect that since you have identified yourselves
with the Union our decision has been put on hold, the Respon-
dent made an unnecessary but nevertheless coercive remark
blaming the employees’ union activity in wearing the shirts as the
reason for the postponement of the decision on the raise. It is
true that in the course of the conversation de Michele also said
that consideration of the raise was postponed because the Re-
spondent did not want it to appear that it was bribing employees,
but in referring to the shirts she identified the employees’ loyalty
to the Union as being the reason for the delay in reaching a deci-
sion as to the raise.
Contrary to the Respondent’s argument, de Michele did more
than simply remark about the employees’ obvious loyalty to the
Union. She made a connection between their loyalty to the Un-
ion and the fact that consideration of the wage increase would be
postponed.
“The Board has long held that an employer violates Section
8(a)(1) if it advises employees that it will withhold wage in-
creases or accrued benefits because of union activities.” Invista,
346 NLRB 1269, 1270 (2006), where the Board found that an
employer’s threat that there would be no more pay raises as long
as the union was trying to get in was an unlawful threat which
placed the blame on the union for the employees’ not receiving a
pay raise. See Earthgrains Baking Cos., 339 NLRB 24, 28
(2003); Grass Valley Grocery Outlet, 322 NLRB 1449, 1451
(2000).
In Sacramento Recycling & Transfer Station, 345 NLRB 564,
564–565 (2005), an employer told its employees that it had con-
sidered granting a raise but could not do so because it would be
considered a bribe to defeat the Union. The Board found that the
statement violated Section 8(a)(1) because the employer attrib-
uted the withholding of the raise to the petition, unlawfully plac-
ing the onus for the denial of that benefit on the union.
Under these circumstances, it is clear and I find that de Mich-
ele’s remarks reasonably tended to restrain, coerce, or interfere
with the employees’ rights guaranteed under the Act to have their
wage raise considered or granted regardless of whether they sup-
port the Union.
I accordingly find and conclude that the Respondent unlaw-
fully informed its employees that they would not receive a pay
raise or that such a pay increase would be postponed because of
their support for the Union.
B. The Threat of More Onerous Working Conditions
The complaint alleges that the Respondent threatened its em-
ployees with more onerous working conditions if they selected
the Union as their collective-bargaining representative.
As set forth above, de Michele told the employees that if the
Union organized the employees “everything would change”—
there would be a lack of flexibility regarding granting time for
vocal rest and employees’ holding second jobs, benefits which
they enjoyed at that time and a “more rigid working environ-
ment.” Such statements violate Section 8(a)(1) of the Act. Top-
side Construction Inc., 329 NLRB 886, 891 (1999); Allegheny
Ludlum Corp., 320 NLRB 484, 484 (1995). Even though the
employees were open union supporters, de Michele’s comments
were clearly coercive. Seton Co., 332 NLRB 979, 981 (1999).
The Respondent correctly notes that Section 8(c) of the Act
permits an employer to express any views or opinion to employ-
ees if such expression “contains no threat of reprisal or force or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488
promise of benefit.” De Michele’s comments went much farther
than simply expressing the Employer’s view of how union repre-
sentation would affect the relationship between the employees
and the Respondent. As set forth above, her remarks constituted
a threat that if the Union represented the employees they would
be subject to an adverse change in their working conditions.
The Respondent points to the testimony of Hackney who said
that de Michele remarked that the changes would take place pur-
suant to the terms of a union contract. However, de Michele did
not support her statement by showing a union contract to the
employees, and no contract was offered in evidence here to refute
de Michele’s implication that under a union contract the actors’
working conditions would be less flexible or more rigid or that
they would lose the benefits of vocal rest and second job oppor-
tunities they then enjoyed. Schaumburg Hyundai, Inc., 318
NLRB 449, 450 (1995).
“Although an employer can legitimately make a prediction . . .
regarding the precise effects of unionization, the prediction must
be carefully made on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond its control.” NLRB v. Gissel Packing Co., 395 U.S. 575,
618 (1969). De Michele’s statement that the Union’s contract
would result in the employees being adversely impacted was not
sufficient to constitute objective evidence of such an event. As
the Respondent argues, an employer may advise employees, in a
manner which is moderate in tone, of the possible consequences
of unionization. Tri-Cast, Inc., 274 NLRB 377, 378 (1985).
However, de Michele’s comments went far beyond that deemed
permissible. Her remarks were direct threats that if the Union
succeeded in organizing the actors there would be less flexibility
and more rigidity concerning matters which were vitally impor-
tant to them—vocal rest and working second jobs.
I accordingly find and conclude that, as alleged, the Respon-
dent unlawfully threatened its employees with more onerous
working conditions if they selected the Union as their collective-
bargaining representative.
C. The Alleged Statements Equating Support for the Union
to Disloyalty to the Respondent
The complaint alleges that the Respondent made statements
equating support for the Union to disloyalty to the Respondent.
This relates to de Michele’s gesture to the union shirts worn by
the actors and her remark that “now that we see where your loy-
alties lie” the Employer would not give them a raise.
Apart from the allegation that this comment violated the Act
because it served to inform the employees that their union activ-
ity played a role in their not receiving a raise, this is alleged as an
independent violation. The General Counsel argues that de
Michele’s comment equated support for the Union with disloy-
alty to the Respondent, implying that if they were loyal to the
Union they were not loyal to the Employer, citing Medicare As-
sociates, Inc., 330 NLRB 935, 941–942 (2000), where the Board
found that an employer unlawfully equated loyalty to the em-
ployer with opposition to the union by telling an employee that
she must takes sides in a union campaign and was needed on the
employer’s side. “Statements equating union activity with dis-
loyalty to the employer constitute coercion in violation of Section
8(a)(1).” HarperCollins San Francisco v. NLRB, 79 F.3d 1324,
1330 (2d Cir. 1996).
I do not agree with the General Counsel’s theory. The Board
cases require a “direct reference equating protected activity with
disloyalty to the employer.” Sea Breeze Health Care Center, 331
NLRB 1131, 1132 (2000). There must be some evidence that the
employee was accused of disloyalty to the employer. Ferguson-
Williams, Inc., 322 NLRB 695, 699 (1996), where the employer
was “greatly offended by [an employee’s] disloyalty”; House
Calls, Inc., 304 NLRB 311, 313 (1991), where the employees
were “ingrates who were hitting him when he was down.”
In contrast, de Michele did not expressly or impliedly accuse
the employees of such disloyalty. Rather, she remarked only that
the employees’ loyalties lie with the Union. Her observation that
the actors were open and obvious loyal union supporters because
they wore union shirts was not unlawful. No violation was found
where an employer told an employee that he had hurt his feelings
and was disappointed in him because he was distributing union
material. Oklahoma Installation Co., 309 NLRB 776 (1992).
I accordingly will recommend that this allegation be dis-
missed.
III. THE ALLEGED VIOLATIONS OF SECTION 8(a)(3) OF THE ACT
The complaint alleges that the Respondent denied a wage in-
crease for its employees and, as an alternative thereto, the Re-
spondent suspended its process of considering a wage increase
for its employees because they assisted the Union and engaged in
concerted activities.
It is the Board’s longstanding principle that:

[A]n employer faced with a union organizing drive is re-
quired to proceed with an expected wage or benefit adjust-
ment as if the union were not on the scene. However, “[a]n
employer may postpone such a wage or benefit adjustment
so long as it ‘[makes clear]’ to employees that the adjust-
ment would occur whether or not they select a union and
that the “sole purpose” of the adjustment is to avoid the ap-
pearance of influencing the election’s outcome.” Sam’s
Club, 349 NLRB 1007, 1012–1013 (2007); Atlantic Forest
Products, 282 NLRB 855, 858–859 (1987); Uarco, Inc.,
169 NLRB 1153, 1154 (1968).

In announcing the postponement, the employer may not attrib-
ute its failure to implement the “expected wage or benefit ad-
justment to the presence of the union or by disparaging or un-
dermining the union by creating the impression it impeded the
granting of the adjustment.” Earthgrains Baking Cos., 339
NLRB 24, 28 (2003); see Grouse Mountain Lodge, 333 NLRB
1322, 1324 (2001); Atlantic Forest, above; Uarco, above.
A. The Alleged Denial of a Wage Increase
The first question which must be answered is whether the
wage raise was approved at the time of the June 18 meeting. The
General Counsel argues that it was approved and the Respondent
claims that it was not.
The General Counsel’s credited evidence consists essentially
of what the employees were told at the June 18 meeting. The
most that the General Counsel may rely on was de Michele’s
remark that the pay raise was “agreed upon,” and that the Em-
AMERICAN GIRL PLACE NEW YORK 489
ployer was ready to sign off on the raise but was one signature
away, and the increase therefore was “not finalized or approved.”
The General Counsel cites SNE Enterprises, 347 NLRB 472
(2006), for the proposition that the Respondent approved the
raise. In that case the Board found that the respondent decided,
pursuant to its established policy of conducting wage reviews, to
grant a wage increase. Here, in contrast, the Respondent had no
established policy of granting mid-contract pay raises, and there
was no credible evidence that it had, in fact, approved the raise or
decided to grant it. Rather, the evidence supports a finding that
the raise was still under consideration at the time of the June 18
meeting.
The Respondent’s evidence establishes that the raise was un-
der active consideration as of June 18. On May 7, de Michele
prepared a chart for the Respondent’s officials with “proposed”
changes in the show rate which set forth a pay raise of $6 per
show. At about that time, Manager Levenick learned that the
Respondent had an “idea” to raise the actors’ show rate and that
the Union sought to represent them. She advised that further
discussions or decisions concerning changes in the show rate be
postponed. Accordingly, there is no evidence that a pay raise had
been approved. Nor is there any evidence that the actors were
told that they would be receiving pay raises, or that a definite
sum and date of implementation had been given to them.
I note that when the Respondent decided to grant a $200
weekly stipend increase for June that decision was announced
immediately to the actors. Assuming that the Respondent would
have followed the same procedure, it appears that if a decision
had been made to grant a per show raise, an announcement con-
cerning the raise would have been made to the actors at once.
That they were not notified of a pay raise by June 18 is some
evidence that no decision had been made to grant the raise.
Clearly, de Michele proposed an increased wage rate and on
June 18 the raise appeared to be well on its way to complete ap-
proval, but lacked one signature. If that last signatory decided
not to approve the wage raise it would not have been granted.
The wage raise was either approved or not approved. Here, there
was no credible evidence that it had been approved. It could not
have been approved but for one signature. If approval lacked one
signature it may not be found that it was approved. Since the
Respondent did not approve a pay increase it could not have
denied such a raise. Thus, no increase was “determined, prom-
ised, scheduled or announced.” American Mirror Co., 269
NLRB 1091, 1094 (1984).
Accordingly, I cannot find that the Respondent had decided to
grant the employees a per show wage increase, and I will rec-
ommend that the allegation that the Respondent denied a wage
raise be dismissed.
B. The Alleged Suspension of the Process
of Considering a Wage Increase
The above principles may be applied to the General Counsel’s
alternative theory that even if the wage raise was lawfully not
granted, the Respondent’s suspension of the process of consider-
ing a wage increase was unlawful. Thus, the Respondent was
actively considering granting a raise to the actors but postponed
its deliberation because of the Union’s claim to represent its em-
ployees.
According to the above principles, the Respondent was re-
quired to act as if the Union was not on the scene by continuing
its process of considering a wage raise. Russell Stover Candies,
Inc., 221 NLRB 441 (1975). It did not do so, and instead sus-
pended its deliberations on the increase. It could have lawfully
deferred its study of the raise if it “made clear” (a) to its employ-
ees that its continued deliberation on the issue would occur
whether or not they select a union, and (b) that the “sole purpose”
of the postponement was to avoid the appearance of influencing
the election’s outcome, and if it avoided putting the onus on the
Union for the postponement. Atlantic Forest; Earthgrains,
above.
The Respondent did not meet its obligations in this regard.
Under the first standard, the Employer was obligated to inform
the actors that it would continue to consider the raise regardless
of the Union’s claim to represent them and regardless of how
they voted in the election. The Respondent was required to as-
sure them that it would continue its deliberations whether or not
they selected the Union. At no time, not on June 18 or thereafter,
did the Respondent tell its employees that it would continue its
process of considering the raise whether or not they selected the
Union or regardless of the outcome of the campaign. In fact,
according to Levenick’s testimony at the June 2007 hearing,
consideration of the pay raise was still deferred.
In addition, the Respondent did not, at any time, make clear to
its employees that the “sole purpose” of the postponement was to
avoid the appearance of influencing the outcome of the Union’s
campaign to represent the employees. Although the Respondent
did tell the actors that it did not want to make any changes in
their pay because it would appear to be bribery, de Michele also
referred to their union shirts as the reason why a pay raise would
not be given. Thus, she said that “now that we see where your
loyalties lie, we are no longer going to be able to give you that
raise. . . .” Accordingly, de Michele did not say that the sole
purpose of the postponement was to avoid the appearance of
influencing of any representation matter. Rather, she expressly
referred to their union affiliation as being the reason for the post-
ponement of its consideration of the raise. In doing so, the Re-
spondent attributed its postponement to the presence of the Union
and to the employees’ support for it. Earthgrains Baking Cos.,
339 NLRB 24, 28 (2003).
In SNE Enterprises, above at 472, 473, the Board found that
the employer violated Section 8(a)(3) by departing from its pol-
icy of conducting wage reviews because of the union’s organiz-
ing activity. In that case, the Board found a violation because the
employer claimed that “as a result of the union filing the petition
for election we didn’t even consider granting a general wage
increase” and it did not conduct a wage review toward that end.
Similar to the instant case, that employer made no decision as to
whether to grant a wage raise, but did not undertake a wage re-
view which may have led to pay raises. Such conduct was found
unlawful because it was based on the employees’ union activities.
Here, although the Respondent had no policy of considering a
pay raise during the term of the employees’ contracts, neverthe-
less, it did undertake to consider an increase in the show rate
midterm. Whether or not the Respondent had a policy of consid-
ering a pay increase during the term of its contract with the ac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
tors, it was prohibited from basing employment decisions on the
employees’ union activities. SNE, above.
Under either analysis, Atlantic Forest or SNE, the Respon-
dent’s action in suspending the process of considering a wage
raise was unlawful.
Under an analysis based on Wright Line, 251 NLRB 1083
(1980), the General Counsel must prove that animus toward un-
ion or protected activity was a substantial or motivating factor in
the adverse employment action. The elements commonly re-
quired to support such a showing are union or other protected
activity by the employee, Respondent’s knowledge of that activ-
ity, and union animus on the part of the Respondent. See Wil-
lamette Industries, 341 NLRB 560, 562 (2004). If the General
Counsel makes the required initial showing, the burden then
shifts to the Respondent to prove, as an affirmative defense, that
it would have taken the same action even in the absence of the
employee’s protected activity. See Manno Electric, 321 NLRB
278, 280 fn. 12 (1996). To establish this affirmative defense, the
respondent must persuade by a preponderance of the evidence
that the same action would have taken place even in the absence
of the protected activity.” W. F. Bolin Co., 311 NLRB 1118,
1119 (1993).
Here, the evidence establishes that the employees engaged in
activity on behalf of the Union by wearing union shirts. In addi-
tion, the Union sent a letter to the Respondent on May 3 claiming
to represent them. The Respondent was aware of these activities,
and suspended its consideration of a wage raise because of the
presence of the Union. In this respect, a finding of union animus
is supported by de Michele’s remark that because of their loyal-
ties toward the Union they would not be receiving a pay raise. A
finding of union animus is also supported by the violations of
Section 8(a)(1) above, specifically that the Respondent told its
employees that they did not receive wage increases because they
supported the Union, and threatened its employees with more
onerous working conditions if they selected the Union as their
collective-bargaining representative.
Accordingly, I find that the General Counsel has made a prima
facie showing that the Respondent’s failure to continue consider-
ing a wage raise was motivated by their union activity. The Re-
spondent has not met its burden of showing that it would have
taken the same action even in the absence of the employees’
union activity. It cannot do so because it argues that it postponed
its consideration of the raise precisely because of the employees’
union activity.
The Respondent’s reliance on Village Thrift Store, 272 NLRB
572 (1983), and Hovey Electric, 302 NLRB 482 (1991), is mis-
placed. The Board, while recognizing that the employer faced
with the appearance of a union has a “Hobson’s choice” of grant-
ing or withholding benefits and being subject to a charge if it
chose either course, in both cases noted that the employer is per-
mitted to postpone benefits where it makes clear that the purpose
in doing so is to avoid the appearance of interference. Here, the
Respondent went beyond that simple statement of neutrality and
attributed the postponement of its decision on the raise to the
employees’ support for the Union and the Union’s campaign.
Grouse Mountain Lodge, above.
I therefore find and conclude that the Respondent violated Sec-
tion 8(a)(3) of the Act by postponing its consideration of a wage
increase for its employees.
CONCLUSIONS OF LAW
1. By telling its employees that they did not receive wage in-
creases because they supported the Union, the Respondent vio-
lated Section 8(a)(1) of the Act.
2. By threatening its employees with more onerous working
conditions if they selected the Union as their collective-
bargaining representative, the Respondent violated Section
8(a)(1) of the Act.
3. By suspending its process of considering a wage increase
for its employees because they assisted the Union and engaged in
concerted activities, the Respondent violated Section 8(a)(3) and
(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act.
Inasmuch as I have found that the Respondent unlawfully sus-
pended its process of considering a wage increase for its employ-
ees, I shall recommend that it shall continue its process of con-
sidering the wage increase, and if it decides that it would have
granted a wage increase, to make whole all employees who
would have received such an increase but for the Respondent’s
unlawful failure to continue its process of considering the wage
raise. SNE Enterprises, above at 472, 473. The exact amount of
the wage increases, if any, due employees shall be determined in
compliance proceedings, and shall be computed as prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). At the compliance
stage, the Respondent shall be given the opportunity to establish
that it would not have granted a wage increase. SNE, above.
The employees covered by the recommended Order herein
shall be primary and cover actors. Inasmuch as de Michele’s May
7 email set forth “proposed change[s]” for both categories of
actors, a remedial order should include primary and cover actors.
In addition, the period of time within which pay increases
should be paid, if wage increases are decided on, shall be the
period from June 1 to September 4, 2006, for those actors appear-
ing in the American Girls Review, and for the period September
22 to December 31, 2006, for those actors appearing in the Circle
of Friends show. Those dates are consistent with de Michele’s
May 7 email which set forth the proposed changes for such peri-
ods of time.
[Recommended Order omitted from publication.]