Capitol EMI Music

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 997 (N.L.R.B. 1993)

997
311 NLRB No. 103
CAPITOL EMI MUSIC
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 On August 28, 1991, Administrative Law Judge William N.
Cates issued the attached decision. The Respondents filed exceptions
and supporting briefs. The National Association of Temporary Serv-
ices also filed an amicus brief in opposition to the judge’s decision.
3 Respondent Capitol has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
4 We affirm the judge’s conclusions that Respondent Capitol vio-
lated Sec. 8(a)(1) of the Act by: coercively interrogating employees;
unlawful creating the impression that its employees’ union activities
were under surveillance; promulgating a no-talking rule to interfere
with its employees’ protected rights; more closely monitoring its em-
ployees’ work activities in order to interfere with their efforts to en-
gage in union or protected activities; threatening its employees with
discharge because of their union activities; soliciting employee com-
plaints and grievances and making implied promises related thereto;
threatening its employees with loss of benefits if they selected the
Union as their collective-bargaining representative; threatening its
employees that it would be futile for them to select the Union as
their collective-bargaining representative; granting wage and other
benefit increases to discourage its employees from selecting the
Union as their collective-bargaining representative; and threatening
not to hire employees permanently unless they voted against the
Union.
In adopting these conclusions, we find it unnecessary to rely on
the judge’s finding that Capitol’s warehouse manager, McLean, un-
lawfully interrogated employee Cummings; the judge found other in-
stances of unlawful interrogation that warrant this part of his rec-
ommended remedial Order.
We also affirm the judge’s findings that Respondent Capitol vio-
lated Sec. 8(a)(5) and (1) of the Act by its refusal to recognize and
bargain with the Union after August 17, 1990, and by conduct
amounting to the unilateral institution of new or different policies af-
fecting wages, hours, and working conditions.
Finally, we agree with the judge, for the reasons stated in his deci-
sion, that the election conducted on October 12, 1990, should be set
aside and that a Gissel bargaining order is warranted here. In agree-
ing with the judge that a Gissel bargaining order is appropriate in
this case, Member Oviatt finds this case distinguishable from Som-
erset Welding & Steel, 304 NLRB 32 (1991), in which he dissented
from the issuance of a bargaining order. Unlike the instant case, that
case did not involve a large number of egregious violations. The
only 8(a)(3) violation was a denial of a wage increase to one em-
ployee, a less serious violation than the discriminatory discharge in-
volved in the instant case. Nor were the threats of plant closure dis-
seminated to large numbers of employees. Here the Respondent not
only committed a serious 8(a)(3) violation, but it also engaged in al-
most every type of 8(a)(1) violation, including ‘‘hallmark’’ viola-
tions. Some of the 8(a)(1) violations were widely disseminated, in-
cluding a substantial wage and benefit increase given to employees
to discourage support for the Union. Under such circumstances, I
agree with the issuance of a bargaining order.
Capitol EMI Music, Inc. and Chauffeurs, Teamsters
and Helpers Local 391, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO1
Graham & Associates Temporaries, Inc., and Cap-
itol EMI Music, Inc. and Chauffeurs, Team-
sters and Helpers Local 391, affiliated with
International Brotherhood of Teamsters, AFL–
CIO. Cases 11–CA–14106, 11–CA–14152, 11–
CA–14300, and 11–RC–5723
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
Exceptions filed to the administrative law judge’s
decision in this case2 present the question, inter alia,
whether the judge correctly decided that Respondent
Graham & Associates Temporaries is jointly liable
with Respondent Capitol EMI Music for the discharge
of employee A. V. Harris, solely on the basis of Gra-
ham’s joint employer relationship with Capitol.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,3 and conclusions4 only to the extent con-
sistent with this Decision and Order.
This case concerns, inter alia, the circumstances
under which we will deem both employers in a joint
employer relationship to have committed a violation of
Section 8(a)(3) and (1) of the Act when only one of
those employers took the unlawful action in question.
In particular, we must decide whether Respondent Gra-
ham & Associates, a temporary employment agency,
may properly be found to have violated Section 8(a)(3)
and (1) of the Act solely on the basis of evidence that
Respondent Capitol EMI Music, Inc. terminated a
Graham-supplied employee for unlawful reasons. Cap-
itol is a client employer to which Graham had referred
A. V. Harris, the employee in question. We reverse
the judge’s finding that Capitol’s unlawfully motivated
termination of Harris can, under the circumstances, be
imputed to Graham, and we thus dismiss the complaint
against Graham. As explained below, however, our
holding is a narrow one, dependent on the nature of
the particular joint employer relationship and the ab-
sence of evidence suggesting that Graham either knew,
or should have known, of Capitol’s unlawful motives.
I. THE FACTS
Capitol distributes recording products to retail and
intracompany facilities from its Greensboro, North
Carolina facility. It operates with its own permanent
employees as well as temporary employees referred by
employment agencies. Graham is in the business of re-
ferring temporary employees to clients in both the pub-
lic and private sector. The alleged discriminatee, A. V.
Harris, registered for temporary employment with
Graham and was assigned to a temporary position with
Capitol.
The record presents the following picture of Gra-
ham’s and Capitol’s relationship and their differing
connections to the referred employees. Graham and
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is no dispute that Graham removed Harris from his assign-
ment at Capitol in response to Capitol’s request.
6 Graham later terminated Harris. This latter termination by
Graham is not the subject of the complaint here.
7 We agree with the judge, for the reasons stated in his decision,
that Capitol violated Sec. 8(a)(3) by having Harris removed from his
job at Capitol. See fn. 21, infra. We also agree that Capitol and
Graham are joint employers of Harris.
8 269 NLRB 971 (1984), rev. in pertinent part sub nom. Carrier
Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985).
In Pacemaker, the Board had adopted an administrative law
judge’s decision in which one employer (Pacemaker) was held liable
for the actions of another employer (Carrier Corporation) simply on
the basis that the two were joint employers.
9 The court described the General Counsel as arguing on behalf of
the Board that ‘‘Pacemaker was not a wholly innocent party because
it ‘acquiesced without protest’ in Carrier’s decision to close down
[the terminal in which an organizing campaign had commenced].’’
Graham also notes C. R. Adams Trucking, 262 NLRB 563 (1982),
enfd. 718 F.2d 869 (8th Cir. 1983), but argues that in that case of
joint employer liability for an 8(a)(3) violation it does not appear
that the ‘‘innocent’’ employer argued against vicarious liability.
Capitol do not have common ownership or common fi-
nancial control, nor is there a written agreement be-
tween them. They do, however, share and codetermine
essential terms and conditions of employment. Thus,
Graham negotiated the wage rates of its temporary em-
ployees assigned to Capitol. The temporary employees,
in turn, kept their own records of their hours, and they
received wages and benefits from Graham.
Capitol’s personnel assigned all work and directly
supervised the temporary employees referred to them
by Graham. Capitol also effectively disciplined these
temporary employees by taking corrective actions re-
lated to its day-to-day instructions to them. Indeed,
Capitol could effectively fire any or all these tem-
porary employees by simply requesting that Graham
remove them from Capitol’s operations. Graham al-
ways honored such requests. There is no indication in
the record that these temporary employees were held
out to the public to be anything other than Capitol em-
ployees.
Graham’s removal of Harris from Capitol was
prompted by two telephone calls by two different Cap-
itol officials to two different representatives of
Graham. All four persons involved in these two con-
versations testified that Harris’ union activities at Cap-
itol were not mentioned, and the two Graham rep-
resentatives also testified that they were not otherwise
aware of such activity.5
A Graham manager, LaDonna McGhee, testified that
she told Harris:
Exactly what Ruth Garrison [of Capitol] had told
me, that . . . he was not doing what he had been
asked to do. He was not being cooperative with
the supervisors . . . [and] . . . about the
breakroom where they would find him at 3:00
when he didn’t really check out until 3:30.
McGhee also testified that Harris said he understood
exactly where they were coming from and asked about
other assignments.
After Harris was removed from his Capitol assign-
ment, he was offered assignments with two different
companies by Graham. Although Harris accepted the
assignments, he did not report for work at either as-
signment.6
II. THE JUDGE’S DECISION
Having concluded that Capitol was unlawfully moti-
vated in making the request to Graham to remove Har-
ris and that Capitol and Graham are joint employers,7
the judge turned to the question of whether Graham
should be held vicariously liable for the unlawful act
of Capitol. In addressing this question, the judge spe-
cifically pointed out that there was ‘‘no argument or
evidence of culpability on the part of Graham apart
from [its] being a joint employer with Capitol.’’
Relying on the Board’s decision in Pacemaker Driv-
er Service,8 the judge concluded that Graham was vi-
cariously liable for the unlawful removal of Harris
from Capitol on the sole basis of their joint employer
status. The judge observed that the vicarious liability
aspect of Pacemaker was reversed on appeal, but held
that he was bound by Board precedents until the Board
or the Supreme Court overrules them.
Having so held, the judge proceeded to note, in
agreement with Graham’s counsel, that there is no
showing of any kind that Graham ‘‘knowingly partici-
pated’’ or even ‘‘acquiesced without protest’’ in any
‘‘unfair labor practices of Capitol related to Harris’ re-
moval from Capitol’s operations.’’
III. POSITIONS OF THE PARTIES
Graham contends that a mere finding that it is a
joint employer with Capitol is not an adequate basis
for imputing to it Capitol’s unlawful motivation for a
discharge decision when, as Graham argues, it had no
knowledge of that motivation and no control over that
type of decision, i.e., Capitol’s decisions to terminate
Graham-supplied employees. Its only option when a
client employer terminates such an employee, it ar-
gues, is to reassign the employee elsewhere, as it
sought to do with Harris.
Graham further argues that Pacemaker, supra, on
which the judge relied, is not a sound authority, both
because the Board’s decision was denied enforcement
by the court of appeals and because, according to the
court’s decision, it appears that the Board defended its
Order in terms suggesting that it recognized that one
joint employer could not be found liable for an action
taken solely by the other joint employer in the absence
of evidence of some knowledge of the latter’s unlawful
motivation.9 Graham points to the judge’s finding here
999CAPITOL EMI MUSIC
10 Wolf Trap Foundation, 287 NLRB 1040 (1988); Toledo World
Terminals, 289 NLRB 670, 672–673 (1988).
11 Although Capitol excepted to the judge’s joint employer finding
and to the finding that its termination of Harris was unlawfully moti-
vated, it has made no arguments to the Board regarding the propriety
of holding Graham vicariously liable.
12 Compare NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), with NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
No one contends the discharge at issue here is like the sorts of ac-
tions discussed in Great Dane, where the inference of motivation
may be drawn from the nature of the conduct itself.
13 E.g., W. W. Grainger, Inc., 286 NLRB 94 (1987), enf. denied
on other grounds 860 F.2d 244 (7th Cir. 1988).
14 Pacemaker Driver Service, supra; C. R. Adams Trucking, supra.
15 C. R. Adams Trucking, supra, see fn. 8
16 Southern California Gas Co., 302 NLRB 456, 462–463 (1991)
(even assuming joint employer relationship, no liability for termi-
nation of janitors imputable to employer that had no connection with
the termination decision); Food & Commercial Workers (R & F
Grocers), 267 NLRB 891, 893 fn. 7 (1983) (‘‘joint employers are
not liable for unfair labor practices committed by one of them in
conducting independent operations that are not encompassed by the
joint employer relationship’’).
Member Raudabaugh argues that those cases are inapposite be-
cause in the present case, unlike in those, the discriminatory ac-
tion—here the termination of Harris by Capitol—is within the scope
of the joint employer relationship. But his contention that the termi-
nation decision was within the scope of that relationship depends on
characterizing as a ‘‘request’’ something that was clearly a demand
which Graham had no contractual basis for resisting. As noted in
fns. 17 and 18 infra, this does not at all reflect the realities of the
customer-supplier relationship presented here.
that it was not even aware that Harris had engaged in
any union activities or harbored any union sentiments,
let alone that Capitol had terminated him for those rea-
sons.
Finally, Graham urges the Board to follow the line
of reasoning it has used recently in determining wheth-
er to hold employers vicariously liable for violations in
the operation of union hiring halls from which they ob-
tain employees, i.e., to require a finding that the party
to whom liability is to be imputed knew or should
have known about the unlawful action committed by
the other party.10
The National Association of Temporary Services
(NATS), appearing as amicus curiae, contends that the
judge’s decision, if allowed to stand, would have a se-
rious adverse impact on the temporary help industry,
and it argues that the theory of vicarious liability em-
ployed by the judge is inconsistent with the approach
adopted by courts and agencies under certain other
statutes with respect to the liability of temporary help
agencies for worksite safety violations and violations
of requirements for structuring worksites to accommo-
date the disabled.11
IV. DISCUSSION
It is undisputed here that the 8(a)(3) violation
charged in this case is a violation that must rest on
proof of antiunion motive.12 The question is whether
knowledge of a motive harbored by one employer
should be imputed to the other simply because they are
the joint employers of the same work force. In the cir-
cumstances of this case, we find that it should not.
Joint employers are businesses that are entirely sepa-
rate legal entities except that they both ‘‘take part in
determining essential terms and conditions’’ of a group
of employees. Manpower, Inc., 164 NLRB 287, 288
(1967). Accord: NLRB v. Browning-Ferris Industries,
691 F.2d 1117, 1122–1123 (3d Cir. 1982), and cases
there cited. Where such codetermination of terms and
conditions of employment of an appropriate unit of
employees is shown, the Board finds that the joint em-
ployers share an obligation to bargain with a properly
designated employee bargaining representative.13 As
Graham observes, however, we are referred to only
two cases where the Board has found a violation of
Section 8(a)(3) by two joint employers by imputing the
motive of one to the other.14 In neither case did the
Board articulate any specific rationale for such vicari-
ous liability, and, as Graham also correctly notes, it is
not even clear that the Board considered the issue in
one of those cases.15 Furthermore, to the extent those
cases suggest that a joint employer is automatically lia-
ble even for actions in matters over which the other
employer possesses exclusive authority, they are incon-
sistent with Board precedent concerning the determina-
tion of the scope of a joint employer relationship.16 In
sum, if we are going to impute Capitol’s unlawful mo-
tive in the termination of Harris to Graham, it is im-
perative that we supply some reasoned basis for doing
so.
It is conceivable that joint employers might perceive
a mutual interest in warding off union representation
from the jointly managed employees. In such cases,
one joint employer, by its unlawful conduct, might rea-
sonably be regarded as acting in the ‘‘interest’’ of its
coemployer by chilling the union activity of the em-
ployees. In these circumstances, we might preclude a
seemingly ‘‘innocent’’ joint employer from reaping the
‘‘benefits’’ of its coemployer’s wrongful conduct by
holding the ‘‘innocent’’ joint employer vicariously lia-
ble. Such a solution is especially reasonable in the
‘‘traditional’’ joint employer relationship where each
joint employer has representatives at the worksite, even
if only on an occasional basis, and shares the super-
vision of the jointly employed employees. In these cir-
cumstances, each joint employer is in a position to
hear of, inquire into, and investigate reports of its co-
employer’s unlawful actions. Ascribing vicarious liabil-
ity to the joint employer in these circumstances re-
quires it to undo or otherwise remedy unlawful actions
of which it is in the best position to know and from
which it might gain advantage.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The action of Capitol, as a dissatisfied customer of a labor sup-
plier, in terminating Harris would appear directly contrary to Gra-
ham’s financial advantage. The United States Court of Appeals for
the Sixth Circuit relied on a similar consideration in denying en-
forcement of the Board’s Order holding Pacemaker jointly liable for
satisfying the backpay remedy in Carrier Corp. v. NLRB, 768 F.2d
at 783. It appears that Pacemaker challenged only the remedy and
not the finding of a violation against it, so the court had no occasion
to rule on that broader issue. But the court’s logic would appear to
support a finding that Pacemaker should not have been held liable
at all for the unlawful decision by Carrier which ‘‘caused Pacemaker
to lose its only client in Knoxville,’’ at least in the absence of Pace-
maker’s knowing involvement in Carrier’s unlawful decision. Id.
18 Contrary to our dissenting colleague, we do not agree that prin-
ciples of agency law properly apply to the statutory liability issue
here. But even assuming they do, we do not believe they dictate a
finding that the unlawful action of Capitol must, as a matter of law,
be imputed to Graham. As the section in the Restatement, on which
our colleague relies, makes clear, ‘‘members of a partnership are lia-
ble as principals . . . for the acts of a partner which are authorized
and those which bind them because the act is within the agency
power of the partner.’’ Restatement 2d, Agency § 14A (1958) (em-
phasis added). Capitol’s discrimination against Harris was not ‘‘au-
thorized’’ by Graham, although Graham had no choice but to accept
Harris’ termination, because it had no power to force Capitol to re-
tain employees Capitol did not want. Similarly, although this action
was within the power of Capitol, it was not within Capitol’s ‘‘agen-
cy power,’’ because Capitol was in no sense acting as an agent of
Graham in refusing to retain an employee whom Graham had re-
ferred. In other words, the termination was outside the scope of the
joint employer relationship. See Southern California Gas Co., supra;
Food & Commercial Workers (R & F Grocers), supra.
Member Devaney agrees with the majority that principles of agen-
cy law do not properly apply to the statutory liability issue here. Ac-
cordingly, he finds it unnecessary to reach the issue of whether, as
Member Raudabaugh asserts in his dissent, Capitol’s discharge of
Harris was ‘‘within the scope of the agency.’’
19 Cf. Wolf Trap Foundation, supra, 287 NLRB at 1041.
20 The Board already imposes an evidentiary burden on the party
with the best access to the proof of motivation in cases alleging
8(a)(3) misconduct, the respondent. See Wright Line, 251 NLRB
1083 at 1087–1088 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 1989 (1982).
21 To the extent that this rule is inconsistent with the holdings of
Pacemaker Driver, supra, and C. R. Adams Trucking, supra, regard-
ing the liability of joint employers for violations of Sec. 8(a)(3) and
(1), we overrule them.
22 With respect to the joint employer finding, we note that this
case is distinguishable from Flav-O-Rich, Inc., 309 NLRB 262
(1992), in which the Board adopted a finding that an employment
service (the Job Shop) and the employer to which it had supplied
temporary employees (Flav-O-Rich) were not joint employers. In de-
termining that the Job Shop was the sole employer of the temporary
employees, the administrative law judge relied on his finding that
Flav-O-Rich exercised no control over the employees’ terms and
conditions of employment beyond very limited and routine direction
of their work. In the present case, by contrast, Capitol’s supervision
of Graham-supplied employees goes well beyond routine direction of
work. Among other things, Capitol exercises the right to discipline
them.
Of course, even in the absence of a joint employer relationship,
an employer is properly held liable for its own deliberate actions that
affect an individual’s employment status with another employer.
Thus, an employer that successfully requests the termination of an
employee for discriminatory reasons violates the Act and can be re-
quired to make the employee whole for loss of pay, even if it is not
that employee’s employer. Flav-O-Rich, Inc., supra, 309 NLRB at
265–266 (liability of Flav-O-Rich). The entity acquiescing in the re-
quest would not be guilty of an unfair labor practice, however, if
it were not aware of the motive behind the request. Id. at 266 (liabil-
ity of Job Shop).
This is not the case, however, where one joint em-
ployer merely supplies employees to its coemployer17
and otherwise takes no part in the daily direction of
the employees, does not participate in their oversight,
and has no representatives at the worksite. In this situ-
ation, joint employers are not in a position that would
allow them to learn, even with the expenditure of rea-
sonable efforts, of their coemployer’s unilateral unlaw-
ful actions.18 Consequently, in joint employer relation-
ships in which one employer supplies employees to the
other, we will find both joint employers liable for an
unlawful employee termination (or other discriminatory
discipline short of termination) only when the record
permits an inference (1) that the nonacting joint em-
ployer knew or should have known that the other em-
ployer acted against the employee for unlawful reasons
and (2) that the former has acquiesced in the unlawful
action by failing to protest it or to exercise any con-
tractual right it might possess to resist it.19
Because a joint employer has, by definition, volun-
tarily shared its management of a work force with an-
other employer, and because such employers are in the
best position to produce evidence of their knowledge
of a particular action taken by the other,20 we adopt
the following allocation of burdens. The General
Counsel must first show (1) that two employers are
joint employers of a group of employees and (2) that
one of them has, with unlawful motivation, discharged
or taken other discriminatory actions against an em-
ployee or employees in the jointly managed work
force. The burden then shifts to the employer who
seeks to escape liability for its joint employer’s unlaw-
fully motivated action to show that it neither knew, nor
should have known, of the reason for the other em-
ployer’s action or that, if it knew, it took all measures
within its power to resist the unlawful action.21
Applying this standard here, we find for the reasons
described by the judge that the General Counsel car-
ried his initial burden of showing that Capitol violated
Section 8(a)(3) by having Harris removed from his job
at Capitol and that Capitol and Graham are joint em-
ployers.22 Thus, the burden shifts to Graham to show
that it neither knew nor should have known of Cap-
itol’s unlawful discharge of A. V. Harris.
1001CAPITOL EMI MUSIC
23 If the reason given had suggested a violation, or if no reason
had been given, Graham would have had the burden of presenting
some evidence of its efforts to ascertain the reason for Harris’ re-
moval.
24 In deciding this case we have not relied on case law, cited by
amicus NATS, developed under statutes relating to workplace safety
and the restructuring of worksites to accommodate the disabled. In
our view those cases are not helpful analogues for resolving the
question of vicarious liability for discriminatory employment deci-
sions. We note that cases under Title VII of the Equal Employment
Opportunity Act, 42 U.S.C. § 2000 et seq., do not support a rule of
vicarious liability imposed on the basis of joint employer status
alone. Thus, when two employers are shown to be a single employer
under the Board’s four-part test, an act of discrimination by one will
be imputed to the other. See, e.g., McKenzie v. Davenport-Harris
Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987), and cases there
cited. When two employers are separate entities, however, the courts
seek to determine whether the entity seeking to escape liability exer-
cised some control over the discriminatory act or policy (EEOC v.
Sage Realty Corp., 87 F.R.D. 365, 371 (S.D.N.Y.1980)), or whether
the two entities ‘‘acted in concert’’ to discriminate against an indi-
vidual. Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir.
1983).
1 Pacemaker Driver Service, 269 NLRB 971 (1984), revd. in perti-
nent part sub nom. Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir.
1985); C. R. Adams Trucking, 262 NLRB 563 (1982), enfd. 718
F.2d 869 (8th Cir. 1983).
2 Contrary to the suggestion of my colleagues, I do not suggest
that Graham shared Capitol’s unlawful motive. Rather I conclude
Continued
We are satisfied that Graham has here met this bur-
den because the undisputed evidence shows that Cap-
itol did not tell Graham that it was requesting Harris’
removal because of his union activity and that Graham
was not otherwise aware of this reason. Indeed, ac-
cording to the credited testimony of the two Graham
representatives contacted by Capitol regarding Harris,
the only reasons given for Harris’ removal were plau-
sible and legitimate on their face—that Harris had not
been obeying supervisors’ directives or otherwise co-
operating with them and that he had been found sev-
eral times in the breakroom when he was supposed to
be working. Further, according to Graham Manager
LaDonna McGhee’s credited testimony, when she re-
counted those nondiscriminatory reasons to Harris, he
did not dispute them. Finally, there is no evidence of
any information conveyed to Graham that would have
put it on notice of an unlawful motive underlying Cap-
itol’s termination of Harris. That would have required
Graham to check further on Capitol’s reasons for re-
questing Harris’ removal.23 Accordingly, we conclude
that Graham is not liable for Capitol’s unlawful dis-
charge of employee A. V. Harris.
Finally, as noted at the outset, the rule we have an-
nounced applies only to joint employer relationships of
the kind involved here—in which one employer sup-
plies employees to work in the business of another—
and to unfair labor practices dependent on findings of
unlawful motive. We leave open the possibility that a
finding of vicarious liability might be appropriate in
cases involving different forms of joint employer rela-
tionships and different categories of unfair labor prac-
tices.24
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cap-
itol EMI Music, Inc., Greensboro, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete in its entirety the portion of the Order di-
rected at ‘‘The Company, Graham & Associates Tem-
poraries, Inc., its officers, agents, successors and as-
signs . . . .’’
2. Delete Appendix B.
MEMBER RAUDABAUGH, dissenting.
My colleagues have found that Capitol and Graham
were joint employers of employee Harris. They have
further found that Harris was terminated for discrimi-
natory reasons. They impose a remedial order on one
of the joint employers (Capitol), but they decline to
impose any remedial order on the other (Graham).
They overrule two Board decisions to reach this result.
I would apply these precedents and find Graham joint-
ly liable for the unlawful conduct.
Each of the two Companies was responsible for a
significant aspect of the employment relationship.
Graham hired Harris, referred him to Capitol, set Har-
ris’ wages and benefits, paid Harris, made the appro-
priate deductions, and paid the payroll taxes and work-
ers’ compensation. In return for these services, Capitol
paid Graham a sum of money agreed on by the two
Companies. Capitol directed and supervised Harris at
work. Capitol could request that Graham reassign an
employee, and Graham would acquiesce in that re-
quest. That is what happened in this case—Capitol
asked that Harris be reassigned, and Graham acqui-
esced.
The joint employment of Harris was mutually bene-
ficial to both Employers. Capitol secured the services
of an employee, without being saddled with the admin-
istrative obligations and other expenses that are nor-
mally attendant to a traditional employment relation-
ship. Graham derived a profit for its services. In a real
sense, Graham hired the employee and ‘‘loaned’’ him
to Capitol, in exchange for a sum of money.
As my colleagues appear to concede, the Board’s
case law imposes joint liability in just such joint em-
ployer situations.1 The case law does so even if one
of the joint employers is wholly innocent of the unfair
labor practice committed by the other.2
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that, under the principles discussed here, Graham can be held liable
for the unlawful conduct of Capitol.
3 Restatement 2d, Agency § 14A (1958).
4 59A Am.Jur.2d, Partnership § 250.
5 In denying enforcement in Pacemaker, the Sixth Circuit relied on
the principle that an independent contractor cannot be held respon-
sible for the unlawful acts of the person retaining him, absent in-
volvement or knowledge on the part of the independent contractor.
I agree, but the liability here rests on principles of agency law.
6 For these same reasons, the cases cited by my colleagues in fn.
16 of their opinion are inapposite. In Southern California Gas Co.,
302 NLRB 456 (1991), the termination was effectuated solely by
one employer. In Food & Commercial Workers (R & F Grocers),
267 NLRB 891 (1983), the Board said that a joint employer is not
liable for the unlawful conduct of the other ‘‘with respect to matters
that are not encompassed by the joint employer relationship.’’ As
shown, the termination here was carried out within the terms of the
relationship. Finally, contrary to the view of my colleagues, the Re-
statement supports liability here, for the termination was within the
scope of the joint employer relationship.
7 My colleagues seek to soften the impact of their holding by stat-
ing that they would impose liability on the nonacting joint employer
if: (1) that employer knew or should have known of the unlawful
reasons for the action of the other employer, and (2) the nonacting
employer acquiesced in the action. In my experience, parties rarely
proclaim the unlawful reasons for their actions. Rather, as here, they
assert lawful reasons for their conduct.
1 All dates are 1990 unless I specify otherwise.
2 All of the charges were, at various times thereafter, amended. I
find it unnecessary to set forth dates of the various amendments.
3 Although Capitol has other locations, the Greensboro facility is
the only facility involved herein.
This case law is wholly consistent with general prin-
ciples of agency law. My colleagues do not quarrel
with the proposition that Capitol and Graham, as joint
employers, were partners in the employment of Harris.
Under principles of agency law, one partner is consid-
ered to be the agent of the other.3 As such, that partner
is liable for the acts of his copartners.4 Applying these
principles to the two partners in a joint employer rela-
tionship, one joint employer is the agent of the other
with respect to matters concerning their employment
relationship with the employee.5
My colleagues seek to avoid the imposition of joint
liability by asserting that the termination of Harris was
not in the interests of Graham. I assume arguendo that
this is so. However, the test of liability is not whether
the act of one partner can be shown to be in the inter-
ests of the other. The test is whether the act is within
the scope of the agency created by the partnership ar-
rangement.
My colleagues contend that the termination of Harris
was outside the scope of the joint employer relation-
ship. The fact is that the termination was clearly within
the scope of that relationship. Indeed, the termination
was accomplished pursuant to the terms of the arrange-
ment between the two joint employers. Under the
terms of that arrangement, a termination is accom-
plished when one employer (Capitol) asks the other
(Graham) to take the employee back. When the other
employer (Graham) acquiesces, the joint employer re-
lationship between Capitol/Graham and the employee
is at an end. In these circumstances, I disagree with
my colleagues that the termination was not within the
scope of the joint employer relationship. To the con-
trary, the termination was contemplated by the arrange-
ment between the two employers and was effectuated
pursuant to that arrangement.
My colleagues assert that Capitol could demand of
Graham that Harris be terminated. Assuming arguendo
that the arrangement between Capitol and Graham was
such that Capitol had the power to make such a de-
mand, the exercise of the power would be within the
scope of the arrangement and thus within the scope of
the joint employer relationship.6
In sum, my colleagues have reversed Board prece-
dent. Further, they have done so without cause, for
such precedent is wholly consistent with traditional
principles of agency and partnership law. In addition,
they have diminished the Board’s remedial arsenal.
Many concerned observers believe that the Board
should be adding to its remedial arsenal. Finally, they
have done so in the context of a case involving the
contingency work force, a growing and important area
of our economy. I therefore dissent.7
Donald Gattalaro, Esq., for the General Counsel.
Don T. Carmody, Esq. (Carmody & Goldstein), of New
York, New York, for Capitol EMI Music, Inc.
Martin Erwin, Esq. (Smith, Helms, Mulliss & Moore), of
Greensboro, North Carolina, for Graham & Associates
Temporaries, Inc.
R. W. Brown, Business Agent, of Kernersville, North Caro-
lina, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. Chauf-
feurs, Teamsters and Helpers Local 391, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (the Union) filed
unfair labor practice charges against Capitol EMI Music, Inc.
(Capitol), in Cases 11–CA–14106, 11–CA–14152, and 11–
CA–14300 on October 29, 1990,1 November 27, 1990, and
March 8, 1990, respectively.2 The Union also charged
Graham & Associates Temporaries, Inc. (Graham), with un-
fair labor practices in Case 11–CA–14152. After inves-
tigating, the Regional Director for Region 11, as an agent of
the Board’s General Counsel, issued a second order consoli-
dating cases, consolidated complaint and notice of hearing
(the complaint), on March 22, 1991. I heard the cases in trial
on April 8, 9, 10, and 11, 1991.
In substance, the complaint alleges that Capitol and Gra-
ham are joint employers of certain temporary employees pro-
vided by Graham to Capitol at the latter’s Greensboro, North
Carolina facility.3 It is also alleged that Capitol, through cer-
tain of its agents and supervisors, engaged in various acts
1003CAPITOL EMI MUSIC
4 The specific allegations are set forth elsewhere in this Decision.
5 The unit description is:
All regular full-time warehouse employees, including promotions
department, computer department, order department, and ship-
ping and receiving department, and group leaders employed at
the Respondent Capitol’s Beechwood Drive, Greensboro, North
Carolina, facility; excluding all other employees, office clerical
employees, and guards and supervisors as defined in the Act.
6 The facts set forth in this overview are either admitted,
uncontradicted, or stipulated.
7 The relationship between Capitol and Graham is detailed else-
where in this decision.
that interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed them by Section 7 of the
National Labor Relations Act.4 It is further alleged that Cap-
itol and Graham violated Section 8(a)(3) of the Act in dis-
charging employee Anthony V. Harris (A. V. Harris), on or
about October 22. It is further alleged that since on or about
August 17, a majority of Capitol’s employees in an appro-
priate unit5 selected the Union as their collective-bargaining
representative and that since that date the Union has re-
quested, and continues to request, Capitol to recognize and
bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment of the unit employees. It is alleged Capitol has,
since on or about August 22, refused to recognize and bar-
gain with the Union in that it, on or about January 19, 1991,
unilaterally, without notice to or bargaining with the Union,
(1) distributed an employee handbook that affected wages,
hours, and working conditions; (2) altered its past practice
regarding the awarding of jobs; (3) altered its past practice
regarding attendance; (4) instituted a ‘‘Levels of Discipline’’
policy; (5) instituted a peer review process; (6) instituted a
layoff and recall policy; (7) established three new paid holi-
days; (8) instituted a time-off policy; and, (9) established
production quotas in violation of Section 8(a)(5) of the Act.
It is asserted in the complaint that Capitol’s acts and conduct
alleged to be in violation of Section 8(a)(1) and (3) of the
Act are so serious and substantial in character that the possi-
bility of erasing the effects of these alleged unfair labor prac-
tices and of conducting a fair rerun election by the use of
traditional remedies is slight and that employee sentiments
regarding representation, having been expressed through au-
thorization cards, would, on balance, be better protected by
issuance of a bargaining order.
In a second report on objections and challenges and third
order consolidating cases, the Regional Director for Region
11, on April 5, 1991, consolidated certain of the Union’s
(Petitioner’s) objections to conduct affecting the results of
the election (held on October 12) in Case 11–RC–5723 with
the above-referenced unfair labor practice cases.
Capitol and Graham timely filed answers to the complaint
in which they admitted certain allegations but denied they are
joint employers or that they committed any wrongdoings.
I have carefully reviewed the trial record and have studied
the posttrial briefs filed by counsel for the General Counsel,
Capitol, and Graham. I have been influenced by my assess-
ments of the witnesses as they testified. Based on the above,
and as explained below, I find Capitol and Graham to be
joint employers of certain temporary employees utilized at
Capitol and that they violated the Act substantially as out-
lined in the complaint. Accordingly, I have recommended
certain remedial action, including, among other things, the
posting of notices, the reinstatement with backpay of A. V.
Harris, and that Capitol bargain in good faith with the Union
regarding wages and other terms and conditions of employ-
ment of the employees in the above-described unit.
FINDINGS OF FACT
I. JURISDICTION
Capitol is, and at material times herein has been, a Dela-
ware corporation with a facility located at Greensboro, North
Carolina, where it is engaged in the distribution of records,
compact discs, and vinyl recordings to retail and
intracompany facilities. During the 12 months preceding
issuance of the complaint, Capitol sold and shipped products
valued in excess of $50,000 from its Greensboro facility di-
rectly to points outside the State of North Carolina. The
complaint alleges, the parties admit, and I find, Capitol is,
and at times material herein has been, an employer engaged
in a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Graham is, and at material times herein has been, a North
Carolina corporation with a facility located at Greensboro,
North Carolina, where it is engaged in the operation of an
employment agency. During the 12 months preceding
issuance of the complaint herein, Graham, in the course of
its business operations, provided services valued in excess of
$50,000 to enterprises in the State of North Carolina, includ-
ing Capitol, which, as noted above, is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, the parties admit, and I find, Graham
is, and at times material herein has been, an employer en-
gaged in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes, and I find, the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Overview6
Capitol operates its business utilizing its own permanent
employees as well as some temporary employees that were
hired by Graham and assigned to Capitol by Graham.7 Cap-
itol is free at any time to hire any or all of the temporary
employees Graham assigns to it.
On or about August 12, Capitol employee Kevin
Cummings (Cummings) and approximately 15 fellow work-
ers decided to seek help from a union. On or about August
13, employees Dale Walen, Thomas Kent Brown (T. K.
Brown), and Cummings met with Union Business Agent
Rubin William Brown (R. W. Brown or Business Agent
Brown). Business Agent Brown provided union membership
cards to the employees and told them if they could secure
a 70-percent showing of interest, the Union would demand
recognition from Capitol and if Capitol refused, the Union
would file a representation petition with the Board to seek
a Board-conducted election. On August 15, certain employ-
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Other activities that took place on August 15 and 16 at Capitol
that are intertwined with or impact on the above facts are detailed
elsewhere in this decision. The facts set forth above are simply in-
tended to be a general overview.
9 Counsel for the General Counsel in his posttrial brief moved to
have the original report on objections and challenges received in evi-
dence as G.C. Exh. 1(jj). I hereby grant his unopposed motion.
10 The Regional Director recommended the challenge to the ballots
of the following 17 individuals be sustained on the basis they com-
menced working at Capitol 1 day after the eligibility cutoff date:
Tonya Winston, Linda K. Jones, Marcus Marcellus, Anthony Okoro,
Dawn Stewart, Maxine Cannady, Regina McCormick, Peggy King,
Florita Atkins, Anthony Brown, Derek Wilson, Belinda Cottingham,
Shelia Nicholson Lee, Sophia Jones, Jeannett Bass, Aaron McKin-
ney, and Charles Blackstock.
11 The three the Director recommended be opened and counted
were Sandra Thomasson, Yolanda Joyner, and Mark Schiavone.
12 Objections 1, 2, 3, 5, 6, 7, 9, 10, 12, and 13 allege, inter alia,
that Capitol ‘‘threatened its employees that it would bargain from
zero’’ if they selected the Union as their collective-bargaining rep-
resentative; created the impression among its employees that it
would be futile for them to select the Union as their collective-bar-
gaining representative; threatened its employees with loss of wages
and benefits if they selected the Union as their collective-bargaining
representative; interrogated its employees concerning their union ac-
tivities, sympathies, and desires; threatened its employees with dis-
charge because of their union activities; created among its employees
the impression that their union activities were under surveillance; en-
gaged in surveillance and recorded, by means of video camera and
recorder, its employees while they were engaged in union activities
with union officials; promulgated and threatened to enforce a ‘‘no-
talking’’ rule in the work area in order to dissuade employees from
engaging in union activity; threatened its employees with unspecified
reprisals for engaging in union activity; interfered with its employ-
ees’ right to freely engage in union activity by more closely moni-
toring their work activity; and, promised to remedy its employees’
grievances in an effort to discourage union activity.
13 The Union (Petitioner) withdrew Objections 4, 8, 11, 14, 15,
and 16, and the Regional Director recommended that Objection 17
be overruled.
14 Capitol asserts it filed exceptions to the Regional Director’s Sec-
ond report on April 18, 1991, and further asserts its exceptions are
currently pending before the Board.
15 Capitol also asserts the same actions by counsel for the General
Counsel constitute ‘‘rulemaking’’ without compliance with the Ad-
ministrative Procedures Act.
ees began soliciting their fellow workers to sign union mem-
bership cards. After completing work on the first shift on
August 16, Cummings and other employees took some 50-
plus signed union membership cards to the union hall.8 On
August 17, Union Business Agent Brown demanded in writ-
ing that Capitol recognize and bargain with the Union as the
representative of its unit employees. Capitol admits receiving
the demand letter on August 20, and thereafter denied the
Union’s request. On August 20, Business Agent Brown con-
ducted a union meeting for Capitol employees at which ap-
proximately 40 such employees signed initial union member-
ship cards or signed a second such card. Also on August 20,
the Union filed a representation petition in Case 11–RC–
5723.
Pursuant to a stipulated election agreement approved on
September 13, the Board held a secret ballot election at Cap-
itol on October 12 with the following results.9
Approximate number
of eligible voters:
97
Number of void
ballots:
0
Number of votes cast
for Petitioner:
36
Number of votes cast
against Petitioner:
38
Number of valid
votes counted:
74
Number of
challenged ballots:
20
Number of valid
votes counted plus
challenged ballots: 94
On October 18, the Union (Petitioner) filed timely objections
to conduct affecting the results of the election. After an in-
vestigation, the Regional Director for Region 11 issued his
report on objections and challenges recommending that 17 of
the challenged ballots be sustained10 and that the three re-
maining determinative challenged ballots be opened and
counted.11 In his report, the Regional Director also con-
cluded that 1012 of the 1713 objections raised by the Union
(Petitioner) were coextensive with issues in Case 11–CA–
14106 in which he had issued a complaint on December 4.
Accordingly, the Regional Director recommended the three
challenged ballots in question be opened and counted and if
the revised tally of ballots showed the Union (Petitioner) had
received a majority of the valid votes cast, a certification of
representative should issue; however, if the Union (Peti-
tioner) did not receive a majority of the valid votes counted,
then the Union’s (Petitioner’s) objections should be consoli-
dated with Case 11–CA–14106 for trial.
On or about January 3, 1991, Capitol filed with the Board
exceptions to the Regional Director’s report. On April 2,
1991, the Board, in an unpublished Decision and Order,
adopted the Regional Director’s report. On April 5, 1991,
following an opening and counting of the 3 challenged bal-
lots referenced above, a revised tally of ballots was issued
which shows that 36 votes were cast for the Union (Peti-
tioner) with 41 votes cast against the Union (Petitioner). On
April 5, 1991, the Regional Director for Region 11 issued a
second report on objections and challenges and third order
consolidating cases in which he consolidated the Union’s
(Petitioner’s) pertinent objections with the complaint. The
Regional Director’s second report was served upon Capitol
at the commencement of the trial herein.14
The chronology of the representation and related unfair
labor practice cases has been detailed to the above extent be-
cause Capitol, at trial and at length in its posttrial brief, ar-
gues it has been denied due process and equal protection of
the law15 by the General Counsel issuing a complaint in the
unfair labor practice cases (in which it is noted a bargaining
order remedy would be sought) prior to counting the deter-
minative challenged ballots in the representation case.
Capitol’s lengthy contentions appear to be that it was un-
fairly subjected to having to choose between expending
1005CAPITOL EMI MUSIC
16 In its posttrial brief, Capitol states ‘‘the record shows that Cap-
itol did not undertake the preparation of a defense of the Gissel com-
plaint before the challenged ballot count. Having made the decision
that it could not lawfully be put in the position by the Board of hav-
ing to defend itself against a complaint which might never come to
fruition.’’
17 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
18 According to Ratliff, Kirk made other comments that are cov-
ered elsewhere in this decision.
19 Kirk was no longer employed by Capitol at the time of the trial
herein; however, it appears he was still in the general area. Capitol’s
counsel stated he had spoken with, and subpoenaed, Kirk but that
Kirk was ‘‘reluctant’’ to come to court other than at a time conven-
ient to himself.
20 Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).
21 The Bourne test has been cited with approval by various cir-
cuits. For a partial listing of those circuits, see Teamsters Local 633
v. NLRB, 509 F.2d 490 fn. 15 (D.C. Cir. 1974).
funds to prepare its defense to the unfair labor practice alle-
gations, which allegations might have changed after the chal-
lenged ballots were counted, and doing nothing in the way
of preparation until it saw exactly what it was up against.16
Stated differently, Capitol argues it did not know until the
challenged ballots were opened on Friday before trial com-
menced on Monday ‘‘whether it would actually be necessary
to defend the Gissel allegations in the complaint.’’
Capitol’s constitutional and/or Administrative Procedures
Act defenses are without merit. First, the Gissel17-type com-
plaint paragraph does not add unfair labor practice allega-
tions against Capitol, it simply places Capitol and all parties
on notice that the General Counsel will seek a specific rem-
edy for the unfair labor practice allegations already set forth
in the complaint. Second, the unfair labor practice allegations
had been set forth for an extended time prior to trial of the
instant case. Thus, Capitol can hardly be heard to complain
it did not know what it might be called upon to defend
against. Third, even if the Union (Petitioner) had won the
election, there is nothing beyond mere speculation to indicate
that counsel for the General Counsel would have altered the
unfair labor practice allegations of the complaint in any man-
ner as a result thereof. While it is true that if the Union (Pe-
titioner) had won the election after the three challenged bal-
lots were opened and counted, a certification would have
issued and counsel for the General Counsel would not have
sought a Gissel bargaining order remedy. However, such
changes would not have placed counsel for the General
Counsel in the position of having to change any of the unfair
labor practice allegations already set forth in the complaint.
I am persuaded Capitol was on notice regarding what it
needed to defend against and its choice to follow the course
of action it did was a risk it knowingly took and as such it
was not denied due process or equal protection under the
law. Nor did any of the General Counsel’s actions herein
constitute rulemaking.
B. The Alleged 8(a)(1) Violations
I shall treat the 8(a)(1) allegations against Capitol on a su-
pervisor-by-supervisor basis.
1. Alleged violations attributed to Warehouse
Supervisor Mike Kirk
a. Interrogation
It is alleged at paragraph 13(e) of the complaint that Ware-
house Supervisor Kirk on or about late August, early to mid-
September, and October 12, interrogated employees con-
cerning their union activities, sympathies, and desires.
Employee Sherry Ratliff, who works as a ‘‘bolt rigger’’
under the supervision of Don McLean, testified that in Au-
gust, Supervisor Kirk approached her in the warehouse and
‘‘asked me why I felt I needed a union and . . . why I felt
. . . we needed a union.’’18 Ratliff said that although she at
a later time openly supported the Union, she had not done
so at the time Kirk spoke with her.
Bulk picker Mary Sue Potts testified Supervisor Kirk
asked her in mid-September ‘‘what [she] thought about a
union and what it could do for the Company, for the employ-
ees there.’’ Potts told Kirk she ‘‘didn’t have any idea what
a union could do’’ and added ‘‘[a]ll [she] knew was that the
management hadn’t shown [the employees] anything.’’ Ac-
cording to Potts, Kirk said he had been in a union at a pre-
vious job and a ‘‘union wouldn’t do us any good.’’ Potts
said she had not openly supported the union at the time of
this conversation with Kirk.
Former employee Frederick Townsend testified that in the
warehouse in October, Supervisor Kirk ‘‘asked me how I
intend[ed] to vote and how would I pay union dues.’’ Town-
send told Kirk he was neutral on the union matter. Townsend
said Kirk then ‘‘told me . . . he knew anybody that was vot-
ing for the Union except . . . the last two people . . . or
something like that.’’
Supervisor Kirk was not called as a witness nor was his
absence adequately explained.19
I find no basis to discredit the undisputed testimony of
employees Ratliff and Potts, and former employee Townsend
regarding Supervisor Kirk’s various conversations with them
as outlined above. Accordingly, I credit the above-outlined
testimony.
I shall review the allegations of interrogation that are
based on the above-credited testimony in light of the Board’s
decision in Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). In Rossmore House, the
Board held the lawfulness of questioning by employer agents
about union sympathies and activities turns on the question
of whether ‘‘under all circumstances, the interrogation rea-
sonably tends to restrain or interfere with the employees in
the exercise of rights guaranteed by the Act.’’ The Board in
Rossmore House noted the Bourne20 test was helpful in mak-
ing such an analysis. The Bourne test factors are as follows:
(1) The background, i.e., is there a history of em-
ployer hostility and discrimination?
(2) The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
(3) The identity of the questioner, i.e., how high was
he in the company hierarchy?
(4) Place and method of interrogation, e.g., was em-
ployee called from work to the boss’s office? Was there
an atmosphere of ‘‘unnatural formality’’?
(5) Truthfulness of the reply.21
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kirk, at material times herein, was the management rep-
resentative in charge of warehouse operations. In his con-
versation with employee Ratliff, Kirk not only asked about
her union sympathies but also about the union sentiments of
other employees. Kirk did not assure Ratliff that Capitol
would not take any adverse actions against her or the other
employees regardless of her answers or even whether she an-
swered at all. As will be hereinafter more fully set forth,
Kirk made other comments in his conversations with Ratliff
that I find violated the Act. Kirk advanced no valid reason
to Ratliff or others for his inquiries. When employee Potts
responded to Kirk’s inquiry about what a union could do for
her or the other employees, Kirk told her he knew from ex-
perience the Union would not do the employees any good.
Kirk did not suggest to Potts any valid reason for his ques-
tions. I note that neither Ratliff nor Potts had openly ex-
pressed or demonstrated their union sentiments at the time
Kirk interrogated them. When Kirk questioned former em-
ployee Townsend before the Board-conducted election re-
garding how he was going to vote, Kirk did not express to
Townsend any valid reason for his inquiry.
In light of all the above, I find Capitol, through its super-
visor and agent, Kirk, violated Section 8(a)(1) of the Act as
alleged at paragraph 13(e) of the complaint.
b. Impression of surveillance
It is alleged at paragraph 13(g) of the complaint that Su-
pervisor Kirk, on or about September 11 and 12, and October
12, created among employees the impression their union ac-
tivities were under surveillance.
Employee Cheryl Cole (Cole) testified without contradic-
tion that Supervisor Kirk approached her and employees
Shelia Pemberton and Angela Dumas in their work area on
September 11, and ‘‘said that the Company would know how
the employees voted in the union, . . . they would know
whether they went yes or no’’ and then walked away. Cole
further testified, without contradiction, that the following
day, September 12, Kirk approached her and employees Tab-
itha Stilwell, Felicia Green, Eleanor Austin, and Randy Jones
and stated ‘‘the Company would know how each employee
voted in the election, whether they voted yes or no’’ and
again walked away.
As noted elsewhere in this decision, Supervisor Kirk asked
employee Townsend in October how he intended to vote in
the election and how he would pay union dues. Townsend
testified, without contradiction, Kirk also told him in the
same conversation that ‘‘he knew how many people—he
knew any body that was voting for the union except two.’’
Kirk’s above-outlined comments that Capitol knew how
many employees would be voting for the Union (with two
possible exceptions) in the election clearly conveyed the im-
pression and employees could reasonably assume that their
union activities were under surveillance. Such statements vio-
late Section 8(a)(1) of the Act and I so find. Cf. Keystone
Lamp Mfg. Corp., 284 NLRB 626 at 627 (1987).
c. The no-talking rule and more closely
monitoring employees
It is alleged at paragraph 13(i) of the complaint that Super-
visor Kirk promulgated a rule prohibiting employees from
engaging in conversations in their work areas in an effort to
dissuade them from engaging in union activities. It is further
alleged at paragraph 13(k) of the complaint that Kirk inter-
fered with employees’ attempts to engage in union activity
by more closely monitoring their work.
Employee Potts testified that prior to the advent of the
Union, the employees ‘‘could talk and work together.’’ In
fact, she said it was essential for employees to speak with
each other in order to effectively perform their job assign-
ments as ‘‘bulk pickers.’’ Bulk pickers assemble orders of
records and tapes and in locating such they share a single
computer. Potts testified employees could accomplish their
tasks quicker simply by asking each other where stock was
located rather than waiting in line to use the one warehouse
computer. Potts said that after the Union came on the scene,
Supervisor Kirk, among other supervisors, told them not to
talk and contrary to past practice followed the bulk pickers
as they performed their tasks. Potts said Supervisor Kirk
asked the ‘‘bulk pickers’’ what they were talking about each
time they stopped and then ordered them back to work. Potts
said that prior to the union campaign, she seldom, if ever,
saw Kirk in the aisles of the warehouse but after the union
campaign started he appeared every time a bulk picker
stopped. Potts said Kirk told her ‘‘[i]f we were talking about
the union, we would be terminated.’’
Employee Ratliff testified that prior to the union cam-
paign, Capitol did not ‘‘like us to talk to each other that
much’’ but that no employees had ever been disciplined for
doing so. She testified that about 1 week before the Board-
conducted election, Supervisor Kirk told her ‘‘not to be talk-
ing to anyone’’ that she was ‘‘harassing people into the
union’’ and that she would be disciplined if she didn’t stop
doing so. Ratliff stated that prior to the union campaign, they
‘‘didn’t see the supervisors at all’’ but that after the cam-
paign got underway they saw the supervisors ‘‘[a]ll the
time.’’
Employee Dumas testified that prior to the union cam-
paign, the Company had no rule regarding employees talking
as they worked.
I am persuaded that Capitol, through Supervisor Kirk and
others, promulgated a rule prohibiting conversations between
employees in the work areas in order to dissuade them from
engaging in union activities rather than to maintain produc-
tion or discipline. The prohibition coincided with the advent
of union activities and there was no showing that the long
practice of allowing employees to talk to each other had sud-
denly become a disciplinary problem. Furthermore, the only
focus of Supervisor Kirk’s enforcement of the rule was
against union activities. The Board has long held that rules
or restrictions violate the Act when such are promulgated to
interfere with employees’ rights to self-organization rather
than to maintain production or discipline. See, e.g., Horton
Automatics, 289 NLRB 405 at 409 (1988).
I further conclude Capitol, through Supervisor Kirk, un-
lawfully interfered with its employees union activities by
more closely monitoring its employees’ work activities. As
testified to by employees Ratliff and Potts, supervisors were
seldom seen in the warehouse aisles before the advent of the
Union but after that time supervisors were seen in the aisles
‘‘all the time.’’ That this extra monitoring was aimed at the
employees’ union activities is demonstrated, for example, by
the fact employees who were observed talking as a result of
the extra monitoring were asked if they were talking about
1007CAPITOL EMI MUSIC
22 On cross-examination, Brown stated Gordon said Capitol could
say no, no, no.
23 It appears from Capitol Exh. 13 that Gordon was referring to
Bendix Corp. v. NLRB, 400 F.2d 141 (6th Cir. 1968).
the Union and were told they would be terminated or dis-
ciplined for doing so.
d. Threat of discharge
It is alleged at paragraph 13(f) of the complaint that Su-
pervisor Kirk, on or about September 15, threatened employ-
ees with discharge because of their union activities.
Forklift operator Cummings, one of the employees that ini-
tially contacted the Union and secured many of the union
membership cards, testified that in October Kirk approached
him on the only occasion that he wore a union T-shirt and
said ‘‘even if the Union does win the election or the Union
does get in, that he and the Company would still have the
power or right to see who stays and leaves.’’ I credit
Cummings’ uncontradicted testimony.
Kirk’s comments to known union activist Cummings in
the midst of the union campaign that even if the campaign
was successful, the Company would still decide who stayed
as employees or who lost their employment constitutes an
unlawful threat to discharge employees for their union activi-
ties and I so find.
e. Alleged promise to remedy grievances
It is alleged at paragraph 13(l) of the complaint that Super-
visor Kirk promised to remedy employees’ grievances in an
effort to discourage their union activities.
As noted elsewhere in this decision, Supervisor Kirk asked
employee Ratliff, in August, why she as well as other em-
ployees ‘‘needed a union’’ and then told her ‘‘he thought the
Company could make things better’’ and asked ‘‘what [she]
thought would help the situation’’ and ‘‘that if [she] had any
questions, he would be willing to sit down and talk with
[her] one on one.’’
I am persuaded, in agreement with counsel for the General
Counsel, that in the context of unlawfully interrogating
Ratliff, Kirk also sought to have her identify problems and/or
grievances she or other employees might have with the Com-
pany, real or perceived, and then stated he thought Capitol
could make things better. Kirk even offered to make himself
available one on one for Ratliff to identify what she (or oth-
ers) thought would improve things at Capitol.
Absent a previous practice of doing so (no such practice
was established herein) the solicitation of grievances during
an organizational campaign accompanied by a promise, ex-
pressed or implied, to remedy such grievances violates the
Act. I note it is the promise, expressed or implied, to remedy
the grievances that constitutes the essence of the violation.
I further note that the solicitation of grievances in the midst
of a union campaign inherently constitutes an implied prom-
ise to remedy the grievances. Furthermore, the fact an em-
ployer’s representative does not make a commitment to spe-
cifically take corrective action does not abrogate the anticipa-
tion of improved conditions expectable for the employees in-
volved. Although the inference that an employer is going to
remedy the same when it solicits grievances in a preelection
setting is a rebuttable one, nothing was offered in the instant
case on which to base any such rebuttal. Accordingly, I am
persuaded Kirk’s remarks to Ratliff, as outlined above vio-
lated Section 8(a)(1) of the Act. See Columbus Mills, Inc.,
303 NLRB 223, 227–228 (1991), and the cases cited therein.
2. Alleged violations attributed to Shipping, Receiving
and Traffic Supervisor Michael Gordon
a. Alleged threats of a loss of wages and benefits and
of advising employees it would be futile for them to
select the Union as their collective-bargaining
representative
It is alleged at paragraphs 13(a) and (b) of the complaint
that, on or about early September and October, Supervisor
Gordon threatened employees with loss of wages and bene-
fits if they selected the Union as their collective-bargaining
representative by informing employees bargaining would
start from zero and advising employees it would be futile for
them to select the Union as their collective-bargaining rep-
resentative.
Warehouse employee Anthony M. Harris (A. M. Harris)
testified he and fellow employee T. K. Brown had a con-
versation with Supervisor Gordon in Gordon’s office in early
September. Harris testified Gordon said:
that negotiations would start at ground zero, move to
minimum wage, and then it would go to what we were
making now and then they wouldn’t bargain in good
faith any more.
On cross-examination, Harris testified Gordon said Capitol
‘‘would just sit back and say no’’ when asked to negotiate
wages in excess of the hourly wage ($6.75) paid before the
union campaign started. Harris testified Gordon said ‘‘after
[Capitol] reached the $6.75 mark . . . they would not go any
higher than that.’’
Employee T. K. Brown testified A. M. Harris asked Gor-
don about negotiations if the union represented the employ-
ees. Brown testified Gordon said all Capitol ‘‘had to do was
keep saying no, no, no22 . . . and could just keep putting it
off by saying that.’’ Brown further testified Gordon said ne-
gotiations would ‘‘begin at zero.’’
Shipping, Receiving, and Traffic Supervisor Gordon de-
nied telling A. M. Harris and/or T. K. Brown that zero meant
there would be no wages and that negotiations would move
up to minimum wage and then up to the wages they were
earning but that Capitol would not thereafter bargain in good
faith. Gordon further testified in part on direct examination
as follows:
I had a conversation with Anthony Harris and Thomas
K. Brown in my office about wages and benefits. The
reference that I used when I said—when I talked to
them about bargaining from zero was a reference from
the Bendix case23 which we had been given to in one
of our presentations. I also spoke with them about—that
the Company would bargain in good faith.
Gordon further testified:
I remember explaining to them that there was a letter
presented to the Bendix company and that it was said
that in the letter that on negotiations because everything
was negotiated, salary, wages and benefits—that all
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The remaining 8(a)(1) allegations involving Supervisor Gordon
will be addressed in the portion of this decision related to the dis-
charge of employee A. V. Harris.
items were to be negotiated which meant that they start-
ed at zero which is what the letter said.
On cross-examination, Gordon acknowledged he didn’t
have any ‘‘documents’’ with him when he spoke with Harris
and Brown and he said he had not memorized the content
of the Bendix case. Gordon then explained his understanding
of the Bendix case as follows:
Basically from what I understand it was to be a land-
mark case that referenced using the starting from zero
bargaining.
. . . .
Basically saying that if you start . . . if you bargain,
wages, benefits, and salary that you’re starting from
nothing.
In view of Gordon’s demeanor, I am persuaded all his testi-
mony must be carefully examined to see if it is supported
by any other means. With regard to his testimony about the
A. M. Harris/T. K. Brown meeting, I note that from his di-
rect testimony, it could be concluded he may have attempted,
as he asserts he did, to explain the Bendix case. However,
when asked on cross-examination if he had and/or used any
notes in that meeting (he had not) and then asked to state
his understanding of the Bendix case, his stated under-
standing persuades me his comments at the meeting were as
testified to by Harris and Brown. Both Harris and Brown ap-
peared generally candid and impressed me as attempting to
testify truthfully. Accordingly, I credit their versions of Gor-
don’s comments.
The Board, for an extended period, has been dealing with
the ‘‘bargaining from zero [scratch, nothing, clean sheet of
paper, etc.]’’ type explanations of the give and take in the
collective-bargaining process. As Administrative Law Judge
Michael O. Miller noted in Shaw’s Supermarkets, 289 NLRB
844 at 848 (1988):
Of such statements, the Board has held:
As the Board and the courts have recognized in other
cases, in the course of organizational campaigns,
statements are sometimes made of a kind that may
or may not be coercive, depending on the context in
which they are uttered [fn. omitted.] ‘‘Bargaining
from scratch’’ is such a statement. In order to derive
the true import of these remarks, it is necessary to
view the context in which they are made.
Wagner Industrial Products Co., 170 NLRB 1413
(1968). See also Campbell Soup Co., 225 NLRB 222,
229 (1976), and cases cited therein. Statements that
‘‘accurately reflect the obligations and possibilities of
the bargaining process . . . which do not contain any
threats that Respondent will not bargain in good faith
or that only regressive proposals will result’’ will not
be found violative. Clark Equipment Co., 278 NLRB
498 (1986). Statements that ‘‘effectively threaten em-
ployees with the loss of existing benefits and leave
them with the impression that what they may ultimately
receive depends in large measure upon what the Union
can induce the Employer to restore’’ are objectionable
(and violative of Sec. 8(a)(1)), Plastronics, 233 NLRB
155, 156 (1977), and cases cited therein; Belcher Tow-
ing Co., 265 NLRB 1258, 1268 (1982).
I am persuaded Supervisor Gordon’s remarks exceeded mere
expressions of opinion as to the natural and normal hazards
of collective bargaining. The clear import of Gordon’s com-
ments appears to be that Capitol would start negotiating
wages only after current wages were eliminated and would
only negotiate back to the level of pay employees already en-
joyed prior to negotiations and would, at that point, cease to
bargain in good faith. I find Supervisor Gordon’s remarks to
A. M. Harris and T. K. Brown in early September violated
Section 8(a)(1) of the Act. See Shaw’s Supermarkets, supra
at fn. 3.
b. Interrogation
It is alleged at paragraph 13(e) of the complaint that Su-
pervisor Gordon, on or about October 12, interrogated em-
ployees concerning their union activities, sympathies, and de-
sires.24
Former employee Townsend testified that on October 12,
the day of the Board-conducted election, Supervisor Gordon
handed out ‘‘Vote No’’ buttons. Townsend said Gordon
asked how he intended to vote in the election. Townsend re-
sponded he was neutral. Thereupon, Supervisor Gordon of-
fered Townsend a ‘‘Vote No’’ button which Townsend re-
fused.
Supervisor Gordon was not questioned specifically about
this conversation but he denied ever asking any employee
how they intended to vote in the union election. Gordon stat-
ed that in management meetings, he had been told he could
not interrogate employees about their union sentiments.
I credit Townsend’s above-outlined testimony.
I conclude the above set forth interrogation was coercive
and, as such, violated Section 8(a)(1) of the Act. The ques-
tioning took place on the very day of the Board-conducted
election and was undertaken by the head of shipping and re-
ceiving. No valid purpose was expressed to Townsend for
the questioning. Gordon did not give Townsend any assur-
ance against reprisals if he supported the Union. Finally, as
noted throughout this decision, Gordon engaged in various
unlawful acts.
3. Alleged violations attributed to Human Resources
Manager Rich Garrison
It is alleged at paragraphs 13(a), (b), and (c) of the com-
plaint that Capitol, through its supervisor and agent, Garri-
son, in early October threatened employees with loss of
wages and benefits by informing them that if they selected
the Union as their collective-bargaining representative, bar-
gaining would start from zero and such action on their part
would be futile.
Employee Rita Niles testified she attended a group meet-
ing conducted by Manager Garrison and Supervisor Gordon.
Niles testified:
Rich Garrison told us that they would bargain in good
faith, but they would not deal with the Union. He also
told us that bargaining would start from zero which
1009CAPITOL EMI MUSIC
25 Potts testified slides were not shown at the time these comments
were made.
26 Brown could not recall which employee asked the question.
27 Brown stated no slides were shown during this employee meet-
ing.
28 The materials were made a part of the record herein as Capitol
Exhs. 12 and 13.
would include—we could lose our wages that we cur-
rently had; we could lose benefits that we had and ben-
efits the Company provided.
Niles testified slides were shown at the meeting but not at
the time Garrison made the above comments and she added
he was not reading from a script.
On cross-examination, Niles was questioned about whether
anyone asked Garrison what he meant by saying Capitol
would bargain in good faith but would not deal with the
Union. Although Niles could not recall who did so, she said
Garrison was asked ‘‘how come [Capitol] would not deal
with the Union.’’ Niles said there was total silence to that
question.
Employee Ratliff testified that she, along with approxi-
mately 15 other employees, attended an employee group
meeting in October and that Manager Garrison ‘‘started the
meeting off and told us that we were all starting at zero and
that everything was negotiable, the insurance benefits, every-
thing was on the line.’’ Ratliff said Garrison also ‘‘told us
that [Capitol] wouldn’t negotiate with us so we would have
to go on strike and when we did we would be replaced.’’
When asked on cross-examination exactly what Garrison told
the employees about bargaining at zero, Ratliff testified Gar-
rison said ‘‘if we brought in the Union, we would start at
zero.’’ She further testified:
He told us that we were starting at zero, ground zero,
which means that we would have nothing; everything
would be wiped away and we would start new, includ-
ing insurance and all benefits.
Ratliff testified Garrison was not referring to a script nor
showing slides at the time he talked with the employees.
Employee Potts testified she attended an employee meet-
ing held in early October that was conducted by Garrison
and Distribution Center Manager Charles Alexander. Potts
testified:
They was talking about the bargaining . . . that if they
had to bargain or negotiate with the Union, that they
would have to listen, but they didn’t have to bargain,
and if they did that everything would start from zero.25
Employee T. K. Brown testified he attended an employee
group meeting around the first of October along with 8 to
10 other employees and that Manager Garrison ‘‘told us that
negotiations with the Union would start at zero.’’ Brown fur-
ther testified ‘‘the question was asked26 if zero bargaining
meant zero as in what we have now or as in nothing and
Richard Garrison’s statement was zero or nothing.’’27
Employee Cummings said he attended an employee meet-
ing along with approximately six or seven other employees
in October at which Manager Garrison and Supervisor Gor-
don presided. Cummings testified ‘‘they said that wages —
as far as wages were concerned, bargaining or whatever
would start out at zero and we would be—it would start from
there, we could be making less.’’ Cummings testified he at
that point asked Supervisor Gordon ‘‘are you sure that bar-
gaining starts at zero, and [Gordon] said, yes.’’ Cummings
further testified they said Capitol would bargain in good faith
‘‘but they wouldn’t have to agree to anything and that bar-
gaining could go on for a long time.’’ Cummings testified
that neither Supervisor Gordon nor Manager Garrison read
from a script when they talked about bargaining. Cummings
also said that when they told the employees bargaining
would start at zero and that they could be making less, they
did not mention anything about the possibility that employ-
ees could be making more.
Employee Dumas testified she attended three employee
group meetings at which management discussed the Union.
She said the meetings took place in late September or early
October. Dumas testified:
They discussed what the Union could do or did we
know what the Union could do for us and . . . that
. . . if the Union was to come in and . . . the Union
called a strike that we would have to go and if it was
to go anywhere that bargaining would start at zero.
Dumas was not asked, nor did she voluntarily identify, who
‘‘they’’ of management were.
Employee A. M. Harris testified he attended an employee
group meeting in October at which Manager Garrison ‘‘said
that bargaining would start at zero.’’ Harris said he asked
Garrison, ‘‘do you mean zero as in no money?’’ According
to Harris, Garrison responded, ‘‘no, that zero meant that ev-
erything that we had was frozen, that the $6.75—they would
have to start negotiating at $6.75.’’
Former employee Townsend testified he attended an em-
ployee meeting in October 1990, at which Garrison said that
at the bargaining table ‘‘everything would begin at ground
zero.’’ Townsend said Garrison also stated the employees
‘‘didn’t need a third party and that we would lose—that we
could lose what we already had.’’
Employee Cole testified she attended an employee group
meeting on October 10, and that Manager Garrison said that
‘‘if we were to win the election and the Union was in the
Company . . . that didn’t necessarily mean that our wages
and benefits would increase and that we would negotiate at
zero.’’
Human Resources Manager Garrison testified Capitol man-
agers were supplied ‘‘prepared’’ training materials28 by a
‘‘management consulting firm’’ but that they only used ‘‘bits
and pieces’’ of the materials ‘‘at different times.’’ Garrison
denied telling employees at any point in October they would
lose wages or benefits if they selected the Union as their col-
lective-bargaining representative. Garrison also denied telling
employees in October that it would be futile for them to
choose the Union as their collective-bargaining representa-
tive.
Notwithstanding Garrison’s denials, I am persuaded the
witnesses called by counsel for the General Counsel testified
truthfully. While the campaign materials provided to Capitol
managers, including Garrison, do not appear to contain in-
structions, suggestions, or statements that fall outside the
protection of Section 8(c) of the Act such does not establish
Garrison did not make unlawful coercive statements to em-
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 The record does not establish that the comments testified to by
employee Dumas about the group meeting she attended were made
by Human Resources Manager Garrison.
ployees at group meetings. In that regard, I noted the cred-
ited testimony establishes Garrison did not read from any
prepared materials when he made the comments attributed to
him. Furthermore, the fact some of counsel for the General
Counsel’s witnesses did not testify to coercive statements at
the meeting they attended does not alter my conclusion that
he did so at other employee group meetings.
It is clear the comments Garrison made at the meeting
Ratliff attended were coercive and unlawful. Garrison told
that group of employees bargaining would start at zero and
that meant the employees ‘‘would have nothing,’’ ‘‘every-
thing would be wiped away,’’ ‘‘including insurance and all
benefits.’’ Clearly, Garrison threatened the employees with
loss of their existing benefits and left the employees with the
impression all they could hope to ultimately receive would
depend upon what the Union could induce Capitol to restore.
Garrison told employees Capitol ‘‘wouldn’t negotiate’’ and
they would have to go on strike and be replaced. The clear
import of his comments was that it would be futile for the
employees to select the Union as their collective-bargaining
representative inasmuch as Capitol would not negotiate with
their selected representative.
The statements Garrison made at the employee group
meeting Potts attended were also coercive and unlawful. At
that meeting, Garrison threatened Capitol might be forced to
go to the bargaining table where ‘‘they would have to listen’’
but ‘‘they didn’t have to bargain and that everything would
start from zero.’’ These bargaining from zero comments of
Garrison, when coupled with his other threats of futility
and/or threats not to bargain at all, take on a coercive nature
and as such violate the Act.
At the employee meeting attended by some 8 to 10 em-
ployees, including T. K. Brown, Garrison was asked what he
meant when he said negotiations would start at zero. Garri-
son told the employees it did not mean starting with what
they had but rather meant starting with nothing at all. Such
comments constitute a threat not to bargain in good faith but
rather to engage in regressive bargaining.
Garrison’s comments at the group meeting attended by,
among others, Cummings were coercive. Garrison told that
group not only that bargaining would start at zero of which
he was sure but that Capitol wouldn’t have to agree to any-
thing and that bargaining could go on for a long time. The
overall tenor of his comments suggests he was not attempt-
ing to explain the facts of industrial life and bargaining but
rather to leave the impression the employees would lose by
choosing the Union as their collective-bargaining representa-
tive and that bargaining with Capitol would be a time con-
suming futile act.
Garrison’s comments at the employee group meeting at-
tended by former employee Townsend were also coercive. In
context, Garrison told the employees that in bargaining, ‘‘ev-
erything would begin at ground zero’’ that the employees
‘‘didn’t need a third party’’ and they ‘‘would’’ ‘‘could’’ lose
what they already had. Such comments leave the impression
the Company would engage in regressive bargaining.
It does not appear, based on the testimony of Niles, A. M.
Harris, and Cole,29 that Garrison made coercive comments to
the employees at the group meetings these employees at-
tended. Such conclusion does not impact on my findings that
Garrison did in fact make unlawful coercive statements at
other such meetings. In this regard, I note Garrison did not
use notes or follow a script and as such I find it very prob-
able and believable that he did not make the exact same
comments at each of the many employee group meetings he
conducted.
4. Alleged violations attributed to Distribution Center
Manager Charles Alexander
a. No-talking rule and related threats
It is alleged at paragraph 13(i) of the complaint that Cap-
itol, through Manager Alexander, promulgated a rule prohib-
iting its employees from engaging in conversations in their
work areas in an effort to dissuade them from engaging in
union activity.
Employee Potts testified Center Manager Alexander told
she and others at a group meeting at the timeclock on Octo-
ber 1, ‘‘that he had been informed of the Union and that he
was fully against it and that he forbidded anybody to talk
union in any way and if he caught anybody doing it, that
they would be terminated.’’ Potts said that prior to the ad-
vent of the Union, employees talked freely while working.
Employee Niles testified Alexander said ‘‘anyone found talk-
ing during working hours about the Union would be dealt
with severely.’’ Niles likewise stated there had been no such
rule prior to Alexander’s announcement on October 1.
Former employee Townsend testified Alexander said ‘‘any-
body caught talking about the Union in the warehouse would
be . . . severely dealt with.’’
Center Manager Alexander denied ever telling employees
that if they talked about the Union, they would be disciplined
or terminated.
I credit Potts’, Niles’, and Townsend’s above-outlined tes-
timony. I do not find their somewhat different versions of
what Alexander said to detract from the overall reliability of
their testimony. I specifically discredit Alexander’s denials.
Alexander was a particularly disingenuous witness.
It is clear that before the union campaign started, employ-
ees were free to talk and, in fact, as is set forth elsewhere
in this decision, it was, helpful in the performance of their
various job assignments for them to freely talk among them-
selves. It is just as clear that Alexander’s prohibitions related
to talking were specifically instituted to inhibit and/or inter-
fere with the employees’ union activities. Such violates Sec-
tion 8(a)(1) of the Act and I so find. See Turnbull Cone Bak-
ing Co., 271 NLRB 1320 at 1358–1359 (1984), enfd. 778
F.2d 292, 296 (6th Cir. 1985). Alexander’s threats to deal se-
verely with anyone found to be talking about the Union dur-
ing working hours or in the warehouse also constitutes an
independent violation of Section 8(a)(1) of the Act and I so
find.
b. Granting a wage and other benefits increase
It is alleged at paragraph 13(d) of the complaint that Cen-
ter Manager Alexander, on or about August 16, granted em-
ployees an increase in wages and benefits in order to dis-
courage them from selecting the Union as their collective-
bargaining representative.
1011CAPITOL EMI MUSIC
30 Alexander acknowledged that such a meeting took place at ap-
proximately 1:30 p.m. on August 16 and that he told the employees
at that meeting there would be no wage increases until October 1. 31 Gordon testified employee Cummings gave him the card.
It is undisputed that Capitol informed its hourly employees
orally and in writing at 3:30 p.m. on August 16, that their
wages were being immediately increased by 10 percent and
the increase would be retroactive to June 1. The employees
were also informed they would receive an additional 5-per-
cent performance increase effective October 1. The employ-
ees were notified ‘‘we are changing our annual increase date
for hourly employees from October 1 of each year to June
1.’’ At the same time, the employees were also notified that
‘‘effective immediately’’ Capitol had expanded its holiday
schedule to include ‘‘three extra paid holidays.’’ Additionally
the employees were notified (via a separate memorandum
dated the same day) that ‘‘effective immediately’’ they
would be allowed to ‘‘observe two (2) fifteen-minute paid
break periods during scheduled 8-hour work days.’’
Employee A. M. Harris testified without contradiction that
at least from April to August 16, he and other employees had
been told by Center Manager Alexander, among others, that
there would be no wage increases for the hourly employees
until October. Employee Ratliff testified that ‘‘right after
lunch’’ on August 16, District Center Manager Alexander,
Warehouse Manager Gallagher, and Human Resources Man-
ager Garrison conducted a meeting for all hourly paid em-
ployees in the conference room.30 Ratliff testified:
Well, they told us that they had gone to area businesses
and they checked out how much, you know, they were
making there, what kind of benefits they had and we
were comparable to all of those.
. . . .
Well, we asked them when we would get a raise and
he [Alexander] said probably in October but he wasn’t
sure at the time.
District Center Manager Alexander testified he held sev-
eral employee meetings between March and August at which
wage increases were discussed. He said that on each occa-
sion he told the employees that any increases in wages that
came about would be in October pursuant to the ‘‘Com-
pany’s philosophy’’ of giving increases at that time. Alex-
ander explained that a majority of the employees had been
hired around October 1, 1989, and were told that wage in-
creases would be granted around October 1, 1 year later.
Alexander testified a representative, Mr. Solomon, from
the Company’s Los Angeles, California, office visited the
Greensboro, North Carolina facility perhaps in May and dis-
cussed wage increases with the employees. He said the time-
frame of June for wage increases came up during these dis-
cussions. According to Alexander, Capitol was attempting to
prepare a wage program for its employees and that Human
Resources Manager Garrison was responsible for doing so.
Human Resources Manager Garrison testified he was em-
ployed by Capitol on June 26. He said he immediately insti-
tuted discussions with representatives of other area compa-
nies regarding their wage scales. Garrison said he attended
a meeting of Piedmont Associated Industries (PAI) on Au-
gust 10 and at that meeting learned for the first time that PAI
conducted wage studies and that one had been provided to
Capitol for 1989. He said PAI had not completed its 1990
area wage survey at the time of the August 10 meeting. Gar-
rison said that immediately after he returned from the PAI
meeting, he located Capitol’s copy of PAI’s 1989 wage sur-
vey. He said he reviewed the survey and that Capitol there-
after took the action it did on August 16.
Garrison testified he first attended employee meetings
sometime after he was hired on June 26. He said employees
had always been concerned about when they would get pay
raises. He testified that management had, prior to his arrival,
been telling employees they would get an increase on Octo-
ber 1. He explained that Capitol had hired a number of em-
ployees on June 1 and asserts those employees had been told
when they were hired they would get a wage increase after
1 year of employment. He said it was necessary in August
to clear up the confusion that existed regarding when wage
increases would be granted because some of the employees,
particularly those hired in June, felt ‘‘they were being cheat-
ed by the Company’’ by having to wait until October 1 for
a wage increase.
Garrison testified he and Capitol President Russ Bach,
Senior Director of Field Operations and Human Resources
Jim Harrington, and Center Manager Alexander were the
ones who made the decision with respect to the wages and
other benefits increases that were announced on August 16.
Center Manager Alexander testified that between the 1:30
and 3:30 p.m. employee meetings on August 16, he and Gar-
rison spoke via telephone with Los Angeles-based Senior Di-
rector of Field Operations and Human Resources Harrington.
Alexander said Harrington initiated the call. Harrington told
Alexander and Garrison he had spoken with President Bach
and they were authorized to institute pay raises at the North
Carolina location. Alexander testified that following the con-
ference call, he and Garrison prepared a written summary of
Harrington’s instructions with sufficient copies so that each
employee could have written notification of the wages and
other benefits increases. Alexander testified there was a sense
of urgency about the wages and benefits increases in that
Capitol ‘‘needed to get this resolved now’’ ‘‘prior to people
leaving’’ work that day (August 16) because it ‘‘was such
a hot issue at that time.’’ Alexander testified Harrington spe-
cifically asked if he and Garrison could make the announce-
ment on the increases before the end of the workday. Alex-
ander said he was instructed to also read the announcement
to the employees.
Alexander testified he had no ‘‘personal’’ knowledge of
the Union’s organizing campaign until Monday, August 20.
Garrison testified the first time he was ‘‘personally’’ aware
of any union activities was on August 17. Shipping and Re-
ceiving Supervisor Gordon testified that prior to September,
he worked as a receiving group leader in the warehouse and
that on August 15, he signed an application card for mem-
bership in Local Union No. 391.31 Gordon said that upon
signing the union membership card, he immediately told then
Shipping and Receiving Supervisor Paul Lilley ‘‘there was a
union drive starting and we would be signing union cards.’’
Counsel for the General Counsel contends the wages and
benefits increases were ‘‘hastily announced’’ ‘‘to dissuade
employees from supporting the Union and to assure the an-
nouncement was made before a petition was filed.’’ Counsel
for the General Counsel emphasizes that Capitol, through
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shipping and Receiving Supervisor Lilley, knew on August
15 of the Union’s organizational drive and the momentum it
was generating. Counsel for Capitol, on the other hand, ar-
gues the wages and other benefits increases were not an-
nounced or granted for the purpose of restraining the em-
ployees in the free exercise of their choice of whether or not
to unionize but rather was done simply to clear up employee
confusion regarding when wage increases would be granted.
Counsel for Capitol asserts the ‘‘urgency’’ surrounding the
situation was based on the fact the employees were con-
stantly asking about wage increases.
The law on this point is clear, to promise or grant benefits
to employees in order to dissuade them from supporting a
union violates Section 8(a)(1) of the Act. See, e.g., Mack’s
Supermarkets, 288 NLRB 1082 at 1099 (1988). The an-
nouncement and/or grant of wages or other benefits increases
is legally permissible if it can be shown that an employer
was following its past practice regarding such increases or
that the increases were planned and settled upon before the
advent of union activity.
The facts and circumstances herein fully justify the con-
clusion, which I make, that Capitol’s actions were, as con-
tended by counsel for the General Counsel, for the purpose
of dissuading employees from supporting the Union. Man-
agement learned on August 15 that union activity had started
at its facility. The fact that neither Alexander nor Garrison
claimed to have personal knowledge of any such activities at
the time of the announcement is of no moment because man-
agement otherwise knew inasmuch as Shipping and Receiv-
ing Supervisor Lilley had been so informed. The PAI wage
survey Capitol contends formed the basis for the increases
had been in its possession since 1989. Garrison even ac-
knowledged being aware of the survey for approximately a
week before the announcement was made. Even armed with
the information contained in the 1989 PAI wage survey, Gar-
rison and Alexander told employees at 1:30 p.m. on August
16, that raises were not immediately justified because Capitol
had checked the wages and benefits paid at other local com-
panies and Capitol’s benefits were in line with those of other
area employers. What caused Capitol’s sudden change be-
tween 1:30 and 3:30 p.m. on August 16, regarding wages
and benefits for its employees? The answer appears to be the
advent of union activity including the signing of union mem-
bership cards by a large number of employees. Furthermore,
the haste with which Capitol acted suggests something more
than just clearing up when future wage increases would take
place. I note in this regard that Capitol acknowledged it
acted hastily because it was a hot issue. The evidence sug-
gests the heat that prompted the haste was the employees’
union activities. Furthermore, Capitol went beyond just clear-
ing up any misunderstanding among its employees regarding
future pay increases by announcing retroactive increases
along with additional paid holidays and daily break periods.
All the above supports the inescapable conclusion that Cap-
itol took the actions it did in order to nip in the bud the
union activities of its employees. Capitol failed to dem-
onstrate any past practice with respect to the increases it an-
nounced. In fact, Capitol’s written announcement given to
the employees reflects it was changing its past practice. The
announcement reads in part, ‘‘we are changing our annual in-
crease date for hourly employees from October 1 of each
year to June 1.’’ Capitol also failed to demonstrate its actions
had been planned and/or settled upon before the advent of
the Union. I note that in fact Capitol, through Alexander and
Garrison, were still announcing up until 2 hours before the
change that October 1 would be the date for the next wages
and benefits increases.
In summary, I conclude and find Capitol violated Section
8(a)(1) of the Act as alleged in paragraph 13(d) of the com-
plaint when, on August 16, it granted its employees increases
in wages and benefits in order to discourage them from se-
lecting the Union as their collective-bargaining representa-
tive.
5. Alleged video taping
It is alleged at paragraph 13(h) of the complaint that Cap-
itol, through an unknown official, on October 15, engaged in
surveillance of the union activities of its employees.
Business Agent Brown testified he handbilled on October
5, at the east entrance to Capitol’s parking lot. Brown testi-
fied, ‘‘while I was handbilling, there was a gentleman with
a camera just outside the breakroom door—it’s an area with
tables there—and he was facing me and then about 20 min-
utes later . . . I saw him in the parking lot which was quite
a bit closer and then he returned back to that area where the
tables were.’’ Brown said the person’s dress was casual and
that he utilized a video-type camera. Brown said he answered
employees’ questions as he handbilled on that occasion.
Brown estimated the parking lot to be about 40 feet from
where he handbilled and that the patio break area where the
tables were was approximately 300 feet away. Brown did not
recognize the individual with the video camera nor did he
even know if the individual was employed by Capitol.
Brown observed the individual for a total of approximately
5 minutes.
Counsel for the General Counsel urges that the unknown
Capitol official violated the Act when he photographed
workers talking with and receiving handbills from Business
Agent Brown. It is well established that absent legitimate
justification, an employer’s photographing of its employees
while they are engaged in protected concerted activities con-
stitutes unlawful surveillance. See, e.g., Certainteed Corp.,
282 NLRB 1101 at 1114 (1987), and 15th Avenue Iron
Works, 279 NLRB 643 at 654 (1986). Even if the union
agent was the focus of the photographing, that would not
minimize the intimidating effect on employees. Furthermore,
if the video camera was without film or otherwise inoper-
ative, the coercive effect of the ostensible picture taking
would still be present. However, in the instant case, one crit-
ical bit of evidence on which to base a finding is missing—
counsel for the General Counsel failing to establish that the
video camera operator was an official and/or agent of Cap-
itol. It would be mere speculation on my part to conclude
the camera operator was an official, agent, or supervisor of
Capitol. This is especially so in light of the camera opera-
tor’s casual dress and the almost universal ownership of hand
held video recorders. Accordingly, I shall dismiss the allega-
tions of paragraph 13(h) of the complaint.
6. Alleged violations attributed to Warehouse
Operations Manager Don McLean
It is alleged at paragraph 13(e) of the complaint that Cap-
itol, through Manager McLean, on or about August 23, inter-
1013CAPITOL EMI MUSIC
32 Capitol’s failure to call McLean as a witness was not explained
in any manner. Capitol’s counsel stated on the record that he had
met with McLean during the second day of trial. The failure of
McLean to testify is significant only in evaluating the reliability of
Cummings’ testimony.
33 Capitol operates a facility in Los Angeles, California, which is
unionized.
34 Graham services clients primarily in three North Carolina cities,
namely, Greensboro, High Point, and Winston-Salem.
35 Owner Graham explained rates are negotiated only after review-
ing the clients’ facilities including the actual work areas and after
developing an understanding of the type work to be performed.
rogated employees concerning their union activities, sym-
pathies, and desires.
Employee Cummings credibly testified, without contradic-
tion,32 that ‘‘around the end of August’’ McLean came out
of an office and wanted to know if the Union or Capitol’s
Los Angeles, California facility33 had any type of attendance
policy that he needed ideas for something he was working
on. Cummings told McLean he didn’t know of anything at
that facility or that the Union had.
In agreement with counsel for the General Counsel, I con-
clude McLean’s interrogation of Cummings was coercive in-
terference and as such violated Section 8(a)(1) of the Act. In
so concluding, I note McLean was the second shift ware-
house operations manager at the time. His inquiry took place
as he was leaving a plant office thus suggesting to
Cummings his inquiry was also made on behalf of the high-
est levels of management. McLean had no valid reason for
asking Cummings about Capitol’s unionized facility in Los
Angeles, inasmuch as he could have obtained information of
that nature through Capitol itself. Thus, the inference is war-
ranted that McLean’s inquiry was an attempt to have
Cummings express his union sentiments. Furthermore, no as-
surances were given to Cummings that any reply he might
make, or even if he decided not to reply at all, would not
result in any reprisals being taken against him.
C. The Discharge of Anthony V. Harris on
October 22, 1990
It is alleged at paragraphs 14 and 15 of the complaint that
Capitol and Graham on October 22, discharged and thereafter
failed and refused to reinstate A. V. Harris because of his
union and concerted protected activities in violation of Sec-
tion 8(a)(1) and (3) of the Act.
Inasmuch as Capitol and Graham both are charged with
violating the Act in the discharge of A. V. Harris, I shall not
only trace his employment relationship with both employers,
but I shall also examine the relationship between the two em-
ployers. I shall address the latter—the relationship between
Capitol and Graham—before I examine Harris’ employment
history with both employers. This approach will facilitate un-
derstanding what happened to Harris and why.
Owner Gary Graham testified his company is in the ‘‘busi-
ness of referring temporary employees’’ to clients in ‘‘pri-
vate industry, chamber of commerce, the government, manu-
facturing companies, banking, and financial institutions.’’
Owner Graham said his company has approximately 150 to
200 clients at any given time and has approximately 8000 to
9000 temporary employees on its registers.34 In any typical
week, Graham will have ‘‘400 to 600’’ temporary employees
on assignment with approximately ‘‘50 to 100’’ clients.
Graham has approximately 26 employees on its permanent
staff. In 1990, Graham filed approximately 3000 W-2 forms
with the Internal Revenue Service.
Anyone wishing to be assigned as a temporary employee
through Graham must visit one of Graham’s three locations
‘‘and fill out an application’’ as well as provide information
and identification necessary for ‘‘I-9’’ forms and authorize
Graham to ‘‘check referrals’’ and ‘‘do a police check on
them.’’ Applicants with Graham are asked to indicate the
kinds of positions they are looking for, the rates of pay,
hours, and shifts they’ll work, what companies they prefer
working for, and the types of assignments they will not ac-
cept. Applicants are required to review Graham’s ‘‘Rules and
Regulations’’ and safety policy. Applicants are required to
view an orientation film. Owner Graham testified applicants
are then given an ‘‘overview on how they’re paid, how to
fill out their time card’’ and ‘‘if they go on assignment what
is expected of them.’’ According to Owner Graham, appli-
cants are also told ‘‘when they should get in touch with the
Company if there’s problems on the job.’’
Graham alone decides whether to hire an applicant without
any input from Capitol or any of the other clients it services.
According to owner Graham, a client has no control over
those originally assigned to the client as temporary employ-
ees. He said that after Graham receives a ‘‘job order’’ from
a client for temporary employees, it matches the ‘‘skills’’
and ‘‘qualifications’’ the client seeks with those listed on its
registers of temporary employees. When the skills and quali-
fications sought are matched with the applicants on Gra-
ham’s registers, the tentatively selected employees are asked
‘‘if they are interested in the assignment.’’ After Graham has
determined those interested in the assignment, their names
are then forward to the client.
Owner Graham testified his company charges its clients
for the services of the temporary employees at a rate nego-
tiated between each client and Graham.35 Graham then pays
the temporary employees at a rate agreed on between
Graham and the temporary employees. Graham pays all stat-
utory taxes, worker’s compensation charges, payroll taxes,
and the like for the temporary employees with the remainder
going to cover Graham’s ‘‘overhead and operating ex-
penses’’ as well as Graham’s profits. Owner Graham testified
that after a temporary employee is assigned to a client, one
of its permanent staff members telephones the client on the
first and second day to ensure the temporary employee has
reported for work and at the proper place and time. If the
assignment is long term, a Graham staff member will there-
after check on the temporary employee each Friday. Owner
Graham testified that in case of clients using large numbers
of temporary employees, such as Capitol, it assigns a specific
staff member known as the project manager to the account.
The Graham project manager coordinates with the client ‘‘to
make sure that we have the necessary number of people
there’’ and,
To make sure they’re doing satisfactory work . . .
make sure everyone’s there on time . . . brings them
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Temporary employees fill out their own time records on Graham
provided forms which are then given to a designated Graham rep-
resentative or to the Graham project manager assigned to that client
as is the case with Capitol. The payroll records are also signed by
a representative of the client.
37 Harris said Gordon told him Capitol was going to hire a number
of people and he was pretty sure he would be among those hired.
38 Harris testified on cross-examination he told Gordon he (Gor-
don) was lying about overhearing him talk about the Union because
he had not had anything to do with the Union.
39 Harris said Gordon repeated the same things he had said to him
to his mother.
40 Harris’ mother, employee Terrie McLaurin, corroborated his tes-
timony and stated:
I sort of begged him to keep [Harris] on and he told me that
if I would see to it that [Harris] didn’t associate with anyone
that had anything to do with the Union or talk to those guys
or have any remarks to say about the Union that he would keep
him on on my say so.
their paychecks . . . 36 checks them in on the first and
second shift . . . goes around routinely and asks them
how they’re doing, if they’re having any problems . . .
makes sure everything’s going smooth.
Owner Graham testified the project manager does not per-
form any supervisory functions over the temporary employ-
ees at the client’s jobsite. All supervision of temporary em-
ployees on the job is performed by the client’s supervisory
staff.
Owner Graham testified his company administers dis-
cipline related to temporary employees. He said if a client
is unhappy with a temporary employee ‘‘and they want them
removed from the assignment we will remove them.’’ Owner
Graham testified ‘‘we don’t argue with the [client].’’ Owner
Graham said his company reassigns to some other account
any temporary employee that a client has requested be re-
moved from their job.
Graham’s clients do not provide any benefits to the tem-
porary employees. However, the clients are free to hire Gra-
ham’s employees as their own after utilizing them for a spec-
ified time. Clients using large numbers of temporary employ-
ees, such as Capitol, are free to hire any or all of the tem-
porary employees at any time without having to otherwise
pay a predetermined penalty to Graham for doing so.
There is no written agreement between Graham and Cap-
itol.
A. V. Harris first made application with Graham in March
1989 and was at different times thereafter employed on var-
ious job assignments. Harris filed a second application with
Graham on August 7. Harris was thereafter told by a Graham
representative that positions were open at Capitol and was
asked if he would like to work there. On August 16, Harris
was assigned to Capitol as a temporary employee in the ship-
ping department where he worked for Shipping and Receiv-
ing Supervisor Gordon and Leadperson Clark Thompson.
A. V. Harris testified that before the Board-conducted
election was held at Capitol that Supervisor Gordon told him
he could be hired as a permanent employee on second shift
but he would ‘‘have to vote no for the Union.’’37 Harris tes-
tified he told Gordon he didn’t have anything to do with the
Union that he was working temporary and trying to find a
permanent job ‘‘and the Union wasn’t even [his] concern.’’
According to A. V. Harris, Gordon responded ‘‘that he didn’t
want anyone working for him that was going to vote yes for
the Union.’’
A. V. Harris said he had a good work record at Capitol
in that he did more than his share of work and that Gordon
had told him at least twice a week he was doing a good job.
Harris said that although his job only involved wrapping
skids, he ‘‘learned how to drive all their machines, fill out
their shipping forms, [and] pick orders.’’ In that regard, Har-
ris testified everyone was helpful, that Supervisor Gordon
showed him how to operate the ‘‘bulk picking machine’’ and
that A. M. Harris showed him how to fill out shipping forms.
A. V. Harris testified that:
About a week before the election [Supervisor Gordon]
approached me and he told me he was going to have
to let me go because he overheard me and another em-
ployee talking about that I wanted to join the Union
and he was going to have to let me go.38
A. V. Harris explained:
[Supervisor Gordon] called me in the break room and
he just said he overheard me saying I wanted to join
the Union and he was going to have to let me go. Then,
my mother [Terrie McLaurin] came in shortly after-
wards.39
A. V. Harris said that after his mother came into the area,
he told her what had happened and that Gordon again stated
he didn’t want anybody working for him that was going to
join the Union and he was letting Harris go. Harris testified
his mother told Supervisor Gordon that he really needed his
job and she would try to keep him away from T. K. Brown
and A. M. Harris and anyone else she thought might vote
‘‘yes’’ for the Union.40 Supervisor Gordon asked for a few
minutes to think about the situation. A. V. Harris testified
that in the meantime, he telephoned for someone to take him
home but that about 10 minutes later Supervisor Gordon
came back in and told him to return to work.
It is undisputed that A. V. Harris was thereafter discharged
on October 22. Harris testified ‘‘that Monday morning [Su-
pervisor Gordon] just came up to me and told me I wasn’t
working out and said he was going to have to let me go.’’
Harris testified a Graham representative also notified him
that evening that Capitol would not be needing him any
more. Harris told Graham’s representative he had already
been told by his Capitol supervisor earlier that afternoon.
McLaurin testified that she was not at work the second
time Supervisor Gordon spoke with her son. She said the
next day when she arrived at work, everyone wanted to
know what had happened to her son. She said she spoke with
Supervisor Gordon who told her ‘‘he had overheard [Harris]
talking about the Union and that he just wasn’t going to
work out and that he had to let him go.’’ McLaurin testified
she ‘‘begged’’ Gordon to take her son back, that he really
needed a job, but that Gordon told her he had enough people
working there that thought they could do whatever they
wished. Gordon also told McLaurin he was not going to hire
A. V. Harris back ‘‘and it made him feel good to let [Harris]
go.’’
Shipping and Receiving Supervisor Gordon testified A. V.
Harris worked for him as a ‘‘shrink-wrap person’’ in ship-
1015CAPITOL EMI MUSIC
41 Floyd testified Gordon made no mention, nor was she otherwise
aware of, any union activities on A. V. Harris’ part.
ping and receiving. He said Harris’ job involved wrapping
and loading skids onto trucks for shipment. Gordon said
Shipping and Receiving Team Leader Thompson ‘‘identified
[Harris] as a good worker’’ that Capitol could put on as a
‘‘permanent’’ employee. Gordon said he brought Harris and
Thompson to his office during the first part of October and
told Harris that ‘‘he was a good worker’’ and he would prob-
ably recommend he be permanently employed by Capitol.
Gordon testified that approximately 2 weeks later he ob-
served A. V. Harris driving a piece of equipment known as
a ‘‘bulk picker’’ that he was not authorized to drive. Gordon
told Leadperson Thompson that they ‘‘needed to have a talk
with [Harris] because he was not supposed to be on that
equipment.’’ Gordon then brought Harris to his office and
told him if he had completed his assigned tasks he should
see Leadperson Thompson to find out what else they wanted
him to do. According to Gordon, Harris said he had been
told by employee T. K. Brown that he could help out by op-
erating the ‘‘bulk picker.’’ Gordon said he told Harris he was
‘‘doing a good job’’ and was being considered for a perma-
nent position with Capitol but that when he needed addi-
tional work assignments he was to see Leadperson Thomp-
son. Gordon said that ended their conversation.
Gordon testified that after he had talked with A. V. Harris,
Harris’ mother told him she had heard he had counseled Har-
ris and that she really wanted her son to work at Capitol and
that she had spoken to him and that Capitol shouldn’t have
any more problems with him. Gordon told Harris’ mother he
didn’t normally counsel with temporary employees but had
done so in Harris’ case on her behalf. Gordon testified Har-
ris’ mother told him ‘‘you know that I’m going to vote No’’
and added ‘‘my son has no Union sentiments either.’’ Gor-
don testified he had not said anything to cause Harris’ moth-
er to make the above comments and he said he did not re-
spond thereto. Gordon said the conversation ended with Har-
ris’ mother saying she would again speak to Harris and that
Capitol would not have any more problems with him.
Gordon testified that approximately 3 days later he again
observed Harris operating the same ‘‘bulk-picker’’ equipment
he had spoken to him about earlier. After bringing Harris to
his (Gordon’s) office, Gordon told him he was going to dis-
miss him. Gordon ‘‘escorted’’ Harris to the breakroom where
Harris ‘‘pleaded his case’’ stating ‘‘he really wanted to work
there . . . and . . . knew he could do the job.’’ Gordon told
Harris he wasn’t doing what he had been asked so he was
going to have to let him go.
Supervisor Gordon testified Harris’ mother, employee
McLaurin, thereafter came to the breakroom and ‘‘pleaded’’
with him to let Harris keep his job. Gordon told McLaurin
he had given Harris more chances than he usually gave tem-
porary employees, that he had already talked to Harris and
he was going to let him go. Gordon said no reference was
made to the Union in his second conversation with
McLaurin.
Supervisor Gordon testified A. V. Harris had never at any
time mentioned that he was involved in any union activities.
Gordon denied ever telling Harris that if he voted no in the
Board-conducted election, he would receive a permanent po-
sition with Capitol. Gordon did not recall ever overhearing
Harris and any employee(s) talking about the Union.
Human Resources Manager Garrison testified Supervisor
Gordon had decided to terminate Harris and had already in-
formed Harris before he, Garrison, became involved. Garri-
son testified Gordon told him Harris was ‘‘not working out’’
that he was ‘‘being uncooperative’’ in that by the afternoon
hours ‘‘it was difficult to find’’ him. Garrison could not re-
call Gordon saying anything about Harris operating equip-
ment he was not supposed to. Garrison testified he tele-
phoned Graham’s High Point, North Carolina manager,
LaDonna McGhee, and told her A. V. Harris ‘‘was not work-
ing out’’ and ‘‘was to be replaced.’’ Garrison said he did not
mention to McGhee anything about any union activity on
Harris’ part.
Supervisor Gordon testified he also contacted someone at
Graham and spoke with an individual named ‘‘Misty.’’ Gor-
don told ‘‘Misty’’ Harris was ‘‘not working out,’’ ‘‘not co-
operating with his group leader,’’ and Capitol ‘‘didn’t need
him . . . any more.’’ Gordon said he told ‘‘Misty’’ that Har-
ris had been driving equipment in an area where he wasn’t
supposed to be. Gordon said he did not mention anything
about any union activity on Harris’ part to ‘‘Misty’’ nor did
he explain his request that Harris be replaced in any greater
detail than is set forth above.
Graham’s customer service representative, Misty Lynn
Floyd, testified she took a telephone call from Capitol’s su-
pervisor, Gordon, on October 22, in which he asked that
Graham end Harris’ assignment at Capitol. Harris’ personnel
file reflected Gordon had indicated Harris ‘‘was not working
out,’’ ‘‘not being cooperative with his supervisors,’’ and had
been ‘‘caught several times in the breakroom when he was
supposed to be working.’’41
Graham’s High Point, North Carolina manager, LaDonna
McGhee, testified she received a telephone call on October
22, from Capitol’s human resources manager, Garrison, con-
cerning A. V. Harris. McGhee testified Garrison told her that
Supervisor Gordon wanted Harris’ assignment with Capitol
ended because Harris had not been doing what he had been
told, had not been cooperative, and had been caught him in
the breakroom several times when he was supposed to have
been in the warehouse working. She said Garrison made no
mention of any union activity on Harris’ part. McGhee also
stated she was not otherwise aware of any union activities
on Harris’ part. McGhee said she telephoned Harris at home
that night and told him his assignment with Capitol was
over. McGhee testified she told Harris:
Exactly what Rich Garrison had told me, that . . . he
was not doing what he had been asked to do. He was
not being cooperative with the supervisors . . . [and]
. . . about the break room where they would find him
at 3:00 when he didn’t really check out till 3:30.
McGhee testified Harris said he understood exactly where
they were coming from and asked about other work assign-
ments. McGhee told Harris to call Graham’s office the next
day and stated that was the last contact she had with A. V.
Harris. She said no mention was made of the Union in her
conversation with Harris.
Graham Representative Floyd testified, with supporting
documentation, that after A. V. Harris was removed from his
assignment at Capitol, he was offered, and accepted, assign-
ments at Hyundai Furniture on October 25, and Omega Stu-
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 Harris could not recall being offered these jobs.
43 I note in crediting Harris’ testimony that the same day Gordon
made these comments to Harris, Capitol offered employment to cer-
tain temporary employees.
44 I find, as alleged at par. 13(m) of the complaint, that Gordon’s
comments constitute an unlawful threat in violation of Sec. 8(a)(1)
of the Act.
45 I find the above-outlined comments constitute a threat to dis-
charge employees observed talking about the Union as well as cre-
ating an impression that employees’ union activities are under sur-
veillance and that Capitol would refuse to hire anyone known to
have talked about the Union.
46 I make this finding based on the testimony of Graham’s rep-
resentatives as well as on supporting documentation notwithstanding
Harris’ contrary protestation.
dios on October 29, but did not report for work at either as-
signment.42
Graham’s customer service representative, Laura Scott,
testified, with supporting documentation, that she terminated
A. V. Harris’ employment with Graham on October 29, due
to his work history. She said he had failed to report for a
job assignment that day with Omega Studios. She stated she
terminated Harris solely on his record and said she had no
contact with him on that occasion. Scott testified that no one
from Capitol ever discussed Harris’ work performance with
her and that no one at Graham or Capitol ever mentioned
any union activities on Harris’ part.
Before ascertaining if counsel for the General Counsel es-
tablished a prima facie showing sufficient to support the in-
ference that protected conduct was a motivating factor in
Capitol’s requesting that Graham remove Harris from his as-
signment at its operations, it is necessary to make certain
credibility resolutions. I am persuaded A. V. Harris and his
mother, McLaurin, testified truthfully regarding their ex-
changes with Supervisor Gordon. As alluded to elsewhere in
this Decision, Gordon did not impress me as a believable
witness. Accordingly, I do not credit his account of his ex-
changes with Harris and McLaurin regarding Harris’ removal
from Capitol. In discrediting Gordon, I note his account of
the conversations do not withstand close scrutiny. For exam-
ple, he claims it was McLaurin who raised the subject of the
Union in one of their two meetings by telling him she was
going to vote against the Union and that her son had no
union sentiments. However, he placed the date of these al-
leged comments as having been on or about October 19,
some 7 days after the Board had already conducted the rep-
resentation election at Capitol. It is simply unbelievable that
McLaurin would have made the comments attributed to her
by Gordon especially after the representation election had al-
ready been held.
Based on the credited facts, I find counsel for the General
Counsel established a prima facie case under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
That Harris’ future with Capitol was directly related to his
response to the union’s campaign is borne out by Supervisor
Gordon’s comments to Harris made approximately 1 week
before the Board-conducted election that he could be hired
as a permanent employee43 but he would have to vote ‘‘no’’
with respect to the Union.44 Only after McLaurin promised
Supervisor Gordon that she would see to it that her son, A.
V. Harris, did not associate with or talk to anyone that had
anything to do with the Union that Gordon allowed Harris
to continue working at Capitol. However, 1 week later, Su-
pervisor Gordon told Harris he was not working out and he
was going to have to let him go. That Harris’ not ‘‘working
out’’ was related to the Union is established by Supervisor
Gordon’s response to Harris’ mother’s inquiry regarding
‘‘what had happened’’ to Harris. Supervisor Gordon told
Harris’ mother he had overheard Harris talking about the
Union and he just was not going to work out and he was
letting Harris go.45 Gordon thereafter did take the necessary
steps to have Harris removed from his assignment at Capitol.
Having concluded, based on the evidence outlined above,
that counsel for the General Counsel established the requisite
elements for a prima facie case, I shall now consider whether
Capitol met its burden of demonstrating that Harris would
have been removed from his job even in the absence of any
union activities (real or perceived) on his part. Capitol clear-
ly failed to make such a showing. Supervisor Gordon’s con-
tention that Harris was discharged for twice operating a piece
of equipment he was not authorized to use simply is not
borne out in this record. Harris credibly testified Supervisor
Gordon ‘‘showed [him] how to run the bulk picking ma-
chine.’’ Gordon acknowledged Harris was a good worker and
further acknowledged he had told Harris he would rec-
ommend he be considered for permanent employment with
Capitol. That Harris was a good worker is also borne out by
the fact he had not only been praised by Supervisor Gordon,
but by Leadperson Thompson as well as by certain of his fel-
low workers. Having found that the asserted reason for Har-
ris’ removal from the job was false, I find Capitol failed to
demonstrate Harris would have been removed in the absence
of any protected conduct on his part. Accordingly, I find
Capitol violated Section 8(a)(3) and (1) of the Act by having
him removed from his job.
Next, consideration must be given to whether Graham vio-
lated Section 8(a)(3) and (1) of the Act by its actions related
to A. V. Harris. First, there is no dispute that Graham rep-
resentatives removed Harris from his assignment at Capitol
in response to Capitol’s request. The evidence is unrefuted
that Graham was simply following its normal practice of re-
moving an employee from an assignment where the em-
ployer utilizing the employee requested such action. It was
not Graham’s policy and it did not, in the instant case, dis-
charge the employee that its client had requested be removed
from its operation, rather, it simply reassigned the employee.
Second, the evidence is clear that Graham was not aware of
Harris’ union sentiments or of any union activities on his
part. Third, Graham offered Harris other job assignments
which he accepted but never reported for work at.46
Before addressing the ultimate question of whether
Graham can be held responsible for Capitol’s decision to re-
quest Harris’ reassignment in light of the fact Capitol was
unlawfully motivated in making the request, it is necessary
to determine, among other things, if the two are joint em-
ployers. It is alleged at paragraph 10 of the complaint that
they are joint employers of all temporary employees pro-
vided by Graham to Capitol.
The determination of whether Capitol and Graham are
joint employers ‘‘is essentially a factual issue.’’ Boire v.
Greyhound Corp., 376 U.S. 473 at 481 (1964). The Board
continues to adhere to the standards set out in NLRB v.
1017CAPITOL EMI MUSIC
47 In so holding, I am not unmindful that the Board appears to be
moving away from holding employers strictly liable in other situa-
tions such as in the use of hiring halls. See, e.g., Wolf Trap Founda-
tion, 287 NLRB 1040 (1988), and Toledo World Terminals, 289
NLRB 670 (1988).
Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982), to
determine whether separate business entities constitute joint
employers. See, e.g., Lucky Service Co., 292 NLRB 1159
(1989). The standards are essentially ‘‘whether two or more
employers share or co- determine those matters governing the
essential terms and conditions of employment.’’ Did Capitol
and Graham both exert significant control over the temporary
employees assigned to Capitol by Graham such that they
constitute ‘‘joint employers’’ within the meaning of the Act?
I am persuaded Capitol and Graham are joint employers of
the temporary employees. It is clear they both shared and co-
determined the essential terms and conditions of employment
of the temporary employees on a day-to-day basis. Capitol’s
personnel assigned all work to and directly supervised the
temporary employees Graham assigned to it. Capitol’s per-
sonnel effectively disciplined the temporary employees in
that Capitol’s supervisors gave day-to-day instructions to the
temporary workers and as needed took corrective actions re-
lated thereto. Capitol was free at any time to hire any or all
of the temporary employees as its own permanent employees.
Although the temporary employees kept their own time
records, derived their benefits from, and were paid by
Graham, Graham negotiated their wage rates with Capitol.
There is no indication in the record that the temporary em-
ployees were held out to be anything other than Capitol em-
ployees. Although Graham actually hired the temporary em-
ployees, Capitol could effectively fire any or all of them by
simply requesting that Graham remove any or all of them
from its operations. Graham always honored such requests.
Although there is no common ownership or common finan-
cial control between Graham and Capitol, such is insufficient
to defeat or offset the cumulative effect of the evidence that
they are joint employers. In light of all the above, I find
Graham and Capitol to be joint employers for the purposes
of the Act.
Having concluded that Graham and Capitol are joint em-
ployers does not, however, resolve the question of whether
Graham should be held vicariously liable for the unlawful
acts of Capitol. There is no argument or evidence of culpa-
bility on the part of Graham apart from being a joint em-
ployer with Capitol. In Pacemaker Driver Service, 269
NLRB 971 (1984), revd. in pertinent part sub nom. Carrier
Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985), the Board
adopted an administrative law judge’s decision in which one
employer was held liable for the actions of another simply
on the basis the two were joint employers. However, as indi-
cated above, that portion of the Pacemaker decision was re-
versed on appeal. In reversing on that specific point, the
court held:
The evidence in the case did not demonstrate that Pace-
maker ‘‘knowingly participated’’ in the effectuation of
the unfair labor practices . . . under the circumstances
Pacemaker cannot be held monetarily responsible for
violations it did not commit. The Board’s order shall
therefore be modified to remove Pacemaker’s joint li-
ability for backpay to the employees.
Stated differently, the court decided one joint employer could
not be held monetarily responsible for violations of the Act
committed by the other joint employer in the absence of evi-
dence that the employer knowingly participated in effec-
tuation of the unfair labor practices. That is, however, what
counsel for the General Counsel is asking that I do herein,
in that he urges I conclude Graham is vicariously liable for
the unlawful actions of Capitol on the sole basis of their joint
employer status. I note, in agreement with Graham’s counsel,
that there is no showing of any kind that Graham ‘‘know-
ingly participated’’ or even ‘‘acquiesced without protest’’ to
the unfair labor practices of Capitol related to Harris’ re-
moval from Capitol’s operations. Notwithstanding all the
above, I am persuaded Counsel for the General Counsel’s
position must prevail. The Board has never modified nor oth-
erwise overruled its Pacemaker holding. I am bound by
Board precedence until the Board or Supreme Court over-
rules such. Iowa Beef Packers, 144 NLRB 615 (1963). Ac-
cordingly, I conclude Graham and Capitol are joint employ-
ers jointly and severally liable for the actions taken herein
related to Harris’ removal from Capitol’s operations on or
about October 22.47
D. The Bargaining Order
Counsel for the General Counsel argues that a bargaining
order is warranted in light of Capitol’s conduct and the
Union’s established majority status.
As the Board noted in Pembrook Management, 296 NLRB
1226, 1227 (1989):
It is well settled that the Board will issue a bar-
gaining order when: (1) the union has obtained valid
authorization cards from a majority of the employees in
the bargaining unit and thus is entitled to represent the
employees for collective-bargaining purposes; and (2)
the employer’s refusal to bargain with the union is mo-
tivated not by a good-faith doubt of the union’s major-
ity status, but by a desire to gain time to dissipate that
status, as evidenced by the commission of substantial
unfair labor practices during its antiunion campaign ef-
forts to resist recognition. NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969).
In Gissel, supra, the Supreme Court set forth certain stand-
ards relating to bargaining orders as follows: (1) a bargaining
order may be granted where an employer’s unfair labor prac-
tices are ‘‘outrageous’’ and ‘‘pervasive’’; (2) a bargaining
order may be granted ‘‘in less extraordinary cases marked by
less pervasive unfair labor practices which nonetheless still
have a tendency to undermine majority strength’’; and (3) a
bargaining order is not appropriate in cases involving minor
or less extensive unfair labor practices ‘‘which, because of
their minimal impact on the election machinery, will not sus-
tain a bargaining order.’’ The Board will not burden itself
with deciding whether an employer’s unfair labor practices
fall within the first or second category for the issuance of a
bargaining order as delineated by the Gissel court if regard-
less of the category the unfair labor practices clearly are suf-
ficient to warrant a bargaining order. See, e.g., International
Door, 303 NLRB 582 (1991).
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 The authorization cards contain clear and unambiguous language
that reflects a signer is making ‘‘application for membership in
Local Union No. 391’’ and designates the Union as the signer’s
‘‘representative for purposes of collective bargaining.’’ Capitol’s
contention that certain authorizations cards should be disqualified on
the basis the signers were ‘‘group leaders’’ is without merit. ‘‘Group
leaders’’ were specifically included in the unit and voted unchal-
lenged in the Board-conducted election. Counsel for the General
Counsel offered for introduction into evidence two validly signed au-
thorization cards for certain employees. At trial I rejected a second
card where a card for that individual had already been received into
evidence on the basis of duplicate cards. A review of the record,
however, reflects the cards are not duplicates but rather two sepa-
rately signed cards with the second card being executed approxi-
mately 3 to 5 days after the first card was signed. I am persuaded
the rejected cards should be accepted and made a part of the record
herein. Accordingly, I am removing from the rejected exhibit file
and making a part of the record herein G.C. Exhs. 104, 105, 108,
110, 112, 113, 114, 115, 122, 123, 125, 126, 130, 134, 139, 141,
142, 144, 145, 146, 149, 150, 152, 153, 154, 155, and 157.
49 See, e.g., NLRB v. Jamaica Towing, 632 F.2d 208 (2d. Cir.
1980).
I agree with counsel for the General Counsel that a bar-
gaining order is necessary.
First, the complaint alleges the Union achieved majority
status on August 17, and on that same date demanded rec-
ognition. On August 22, Capitol denied the Union’s demand.
As of August 19, Capitol employed 72 bargaining unit em-
ployees. The Union had 58 valid, signed authorization cards
as of August 17.48 Thus, it is clear an uncoerced majority
of Capitol’s unit employees designated and selected the
Union as their collective-bargaining representative on or be-
fore August 17.
As the Board did in International Door, supra, I find it un-
necessary to determine whether Capitol’s unfair labor prac-
tices are within the first or second category for the issuance
of a bargaining order as delineated by the Gissel court be-
cause it is quite clear the unfair labor practices are sufficient
to warrant a bargaining order regardless of the category. As
detailed elsewhere in this decision, the record reveals numer-
ous and far-reaching unfair labor practices on the part of
Capitol spanning the course of the union election campaign
and thereafter. Capitol countered the Union’s organizational
campaign by (1) coercively interrogating various employees
about their union activities and how they intended to vote;
(2) created the unlawful impression that its employees’ union
activities were under surveillance; (3) promulgated a no talk-
ing rule to interfere with its employees protected rights; (4)
interfered with its employees’ efforts to engage in union ac-
tivities by more closely monitoring their work activities; (5)
threatened its employees with discharge because of their
union activities; (6) solicited grievances; (7) threatened its
employees with loss of benefits if they selected the union as
their collective-bargaining representative; (8) threatened it
would be futile for the employees to select the Union as their
collective-bargaining representative; (9) granted wages and
other benefits increases to discourage its employees from se-
lecting the Union as their collective-bargaining representa-
tive; (10) threatened not to permanently hire an employee un-
less the employee voted against the Union; and, (11) dis-
charged an employee based on union considerations. Cap-
itol’s unfair labor practices include examples of what are re-
ferred to as ‘‘hallmark violations’’49 such as threats to dis-
charge and not hire and an actual discharge. Further, I note
that immediately after the Union began its organizing cam-
paign, Capitol announced and granted a substantial retro-
active wage and other benefits increase. Capitol acknowl-
edged wages were ‘‘a hot issue’’ with the employees at the
time it made its announcement. As the Board noted in
Pembrook Management, supra, quoting from Tower Records,
182 NLRB 382, 387 (1970), enfd. 79 LRRM 2736 (9th Cir.
1972), that ‘‘it is a fair assumption that in most instances
where employees designate a union as their representative, a
major consideration centers on the hope that such representa-
tive may be successful in negotiating wage increases.’’ The
Board went on to note that where an employer unilaterally
grants a wage increase after a union campaign has started,
it is difficult to conceive of conduct more likely to convince
employees that with an important part of what they were
seeking in hand, union representation might no longer be
needed. This is particularly so in the instant case in that Cap-
itol knew wages and other benefits were ‘‘hot issues’’ among
its employees, however, it took no actions related thereto
until it learned of union activity and then the very next day
hastily altered its past practice regarding wage increases by
announcing not only a 10-percent wage increase but that the
increase would be retroactive. Capitol also added new paid
holidays at the same time. Inasmuch as it is not the Board’s
policy to require that unilaterally granted benefits be re-
scinded, it is difficult to remedy such by traditional means.
This difficulty is exacerbated by Capitol’s threats of loss of
benefits and futility. Capitol’s actions and policy of reward-
ing company support and punishing union support creates an
atmosphere in which it is difficult to find that free choice
could be exercised in a second election. See Pembrook Man-
agement, supra. Furthermore, the fact employees were mon-
itored more closely and prohibited from engaging in work
area conversations in order to dissuade them from supporting
the Union further renders it unlikely that employee sentiment
can be freely expressed in a second election. In light of the
Union’s majority status and the fact that Capitol’s pervasive
unfair labor practices render it unlikely that employee senti-
ment can be freely expressed in a second election, I find
Capitol was obligated to bargain with the Union from August
17, the date the Union requested recognition, and I so order.
Having found that Capitol’s bargaining obligation com-
menced on August 17, I find it further violated the Act by,
on or about January 19, 1991, changing its employees’ terms
and conditions of employment as alleged at paragraph 22 of
the complaint. Specifically, Capitol unilaterally, and without
notice to or bargaining with the Union, distributed an em-
ployee handbook that affected the wages, hours, and working
conditions of its employees by changing past practices and/or
policies and instituting different and new policies that estab-
lished factors in addition to seniority upon which employees
would be evaluated for the awarding of jobs; that established
a progressive disciplinary system for tardiness; by instituting
a ‘‘Levels of Discipline’’ policy—a formal progressive dis-
ciplinary system; that instituted a peer review process; that
instituted a layoff and recall policy; that established three
new paid holidays; that instituted a time off policy for per-
sonal leave; and that established production quotas. I find
Capitol’s actions violated Section 8(a)(5) and (1) of the Act.
1019CAPITOL EMI MUSIC
50 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
E. The Objections to the Election in Case 11–RC–5723
Having found support in the record for certain of the ob-
jections to the conduct affecting the results of the election
filed by the Union (Petitioner) in Case 11–RC–5723, namely
Objections 1, 2, 3, 5, 6, 7, 9, 10, 12, and 13 and having also
concluded that such conduct violated Section 8(a)(1) of the
Act, I conclude Capitol has interfered with the exercise of
employee free choice in the election conducted on October
12. I recommend that election be set aside.
CONCLUSIONS OF LAW
1. Capitol EMI Music, Inc. is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Graham & Associates Temporaries Inc. is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Capitol EMI Music, Inc. and Graham & Associates
Temporaries, Inc. are joint employers of the temporary em-
ployees provided by Graham to Capitol at Capitol’s Greens-
boro, North Carolina facility.
4. Chauffeurs, Teamsters and Helpers Local 391, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
5. All regular full-time warehouse employees, including
promotions department, computer department, order depart-
ment, and shipping and receiving departments, and group
leaders employed at Capitol’s Beechwood Drive, Greensboro,
North Carolina facility; excluding all other employees, office
clerical employees, and guards and supervisors as defined in
the Act constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
6. Since on or about August 17, 1990, the Union has been
the exclusive collective-bargaining representative of all em-
ployees employed in the above appropriate unit for the pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
7. By engaging in the following conduct, Capitol violated
Section 8(a)(1) of the Act by: coercively interrogating em-
ployees; creating the unlawful impression that its employees’
union activities were under surveillance; promulgating a no-
talking rule to interfere with its employees protected rights;
more closely monitoring its employees work activities in
order to interfere with its employees’ efforts to engage in
union or protected activities; threatening its employees with
discharge because of their union activities; soliciting em-
ployee complaints and grievances and making implied prom-
ises related thereto; threatening its employees with loss of
benefits if they selected the Union as their collective-bar-
gaining representative; threatening its employees it would be
futile for them to select the Union as their collective-bar-
gaining representative; granting wages and other benefits in-
creases to discourage its employees from selecting the Union
as their collective-bargaining representative; and, threatening
not to permanently hire employees unless they voted against
the Union.
8. By discharging its employee Anthony V. Harris on or
about October 22, 1990, and thereafter refusing to reinstate
him because of his union, concerted and protected activities,
Capitol and Graham engaged in unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act.
9. By engaging in the following conduct, Capitol violated
Section 8(a)(5) and (1) of the Act:
(a) Refusing on and after August 17, 1990, to recog-
nize and bargain with the Union as the collective bar-
gaining representative of the employees in the above
appropriate unit.
(b) Instituting different and/or new policies that af-
fected wages, hours, and working conditions, unilater-
ally altering its past practice regarding the awarding of
jobs; altering its past practice regarding attendance; in-
stituting a formal progressive disciplinary system; insti-
tuting a peer review process; instituting a layoff and re-
call policy; establishing three new paid holidays; insti-
tuting a time off policy that provides for personal leave;
and, establishing production goals with disciplinary en-
forcement procedures without giving the Union notice
and/or an opportunity to bargain.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Capitol engaged in violations of Section
8(a)(1), (3), and (5) of the Act, and that Graham engaged in
acts that violate Section 8(a)(3) and (1) of the Act, I shall
recommend that both be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Capitol and Graham discriminatorily
discharged employee Anthony V. Harris, I shall recommend
Harris be offered immediate and full reinstatement to his
former position of employment with Capitol or, if his former
position of employment no longer exists, to a substantially
equivalent position without prejudice to his seniority or other
rights and privileges previously enjoyed, and that he be made
whole for any loss of earnings he may have suffered by rea-
son of the discrimination against him with interest. Backpay
shall be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest, as computed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).50 I also recommend that Capitol and Graham be or-
dered to expunge from all files any reference to Harris’ dis-
charge and notify him in writing that this has been done and
that evidence of the unlawful actions will not be used as a
basis for any future personnel actions against him.
Inasmuch as I have found that Capitol breached its bar-
gaining obligations under the Act by refusing to recognize
and bargain with the Union and by instituting unilateral
changes affecting wages, hours, and terms and conditions of
employment, I recommend Capitol be ordered to recognize
and bargain with the Union and take certain affirmative ac-
tion including the rescission of the new and/or different poli-
cies or work rules unilaterally implemented in January 1991,
and return to the status quo ante with respect to the enforce-
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 See preceding Board’s Order of this case for modification.
52 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
53 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ment of any old rules and/or policies that may have existed
at that time.
Finally, I recommend Capitol and Graham be ordered to
post separate appropriate notices to employees, copies of
which are attached hereto as ‘‘Appendix A’’ and ‘‘Appendix
B,’’ for a period of 60 days in order that employees may be
apprised of their rights under the Act and Capitol’s and Gra-
ham’s obligation to remedy the unfair labor practices. I have
recommended separate notices in order to better address each
employer’s specific violations.51
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended52
ORDER
The Respondent, Capitol EMI Music, Inc., Greensboro,
North Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their membership in, or activities on be-
half of, the Union or because they engaged in other protected
concerted activities.
(b) Coercively interrogating employees as to their own or
other employees’ union activities or union support.
(c) Creating among its employees the impression that their
union activities are under surveillance.
(d) Promulgating no-talking rules to interfere with employ-
ees’ protected rights.
(e) Interfering with its employees’ attempts to engage in
union activity by more closely monitoring their work activ-
ity.
(f) Threatening its employees with discharge because of
their union activities.
(g) Soliciting employee grievances and promising to rem-
edy same in an effort to discourage its employees’ union ac-
tivities.
(h) Threatening its employees with loss of benefits if they
selected the Union as their collective-bargaining representa-
tive.
(i) Threatening it would be futile for the employees to se-
lect the Union as their collective-bargaining representative.
(j) Granting wages and other benefits increases to discour-
age its employees from selecting the Union as a collective-
bargaining representative.
(k) Threatening not to permanently hire employees unless
they voted against union representation.
(l) Refusing to recognize and bargain with its employees’
designated bargaining agent for the appropriate unit of em-
ployees.
(m) Unilaterally instituting new work rules and/or policies
without notice to and opportunity for bargaining with its em-
ployees’ designated bargaining agent for the appropriate unit
of employees.
(n) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Chauffeurs,
Teamsters and Helpers Local 391, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO as the exclusive bar-
gaining representative of its employees in the appropriate
unit and if an agreement is reached as to wages, hours, and
other terms and conditions of employment, embody the un-
derstanding in a signed, written document. The appropriate
unit is:
All regular full-time warehouse employees, including
promotions department, computer department, order de-
partment, and shipping and receiving departments, and
group leaders employed at Capitol’s Beechwood Drive,
Greensboro, North Carolina, facility; excluding all other
employees, office clerical employees, and guards and
supervisors as defined in the Act.
(b) Rescind the new and/or different work rules or policies
unilaterally implemented in January 1991, and return to the
status quo ante with respect to the enforcement of old rules
and/or policies that may have existed prior to that time.
(c) Offer Anthony V. Harris immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of its unlawful conduct in the manner
set forth in the remedy section of this decision and expunge
any reference to his discharge from his work record.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Greensboro, North Carolina facility copies
of the attached notice marked ‘‘Appendix.’’53 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1021CAPITOL EMI MUSIC
APPENDIX A
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities
WE WILL NOT discharge employees because of their activi-
ties on behalf of the Union.
WE WILL NOT coercively interrogate our employees as to
their own or other employees’ union activities or support.
WE WILL NOT create the impression that our employees’
union activities are under surveillance.
WE WILL NOT promulgate a no-talking rule in order to
interfere with our employees’ protected rights.
WE WILL NOT interfere with our employees’ attempts to
engage in union activity by more closely monitoring their
work activities.
WE WILL NOT threaten our employees with discharge be-
cause of their union activities.
WE WILL NOT solicit and promise to remedy our employ-
ees’ grievances in an effort to discourage their union activi-
ties.
WE WILL NOT threaten our employees with loss of benefits
if they select the Union as their collective-bargaining rep-
resentative.
WE WILL NOT threaten our employees that it would be fu-
tile for the them to select the Union as their collective-bar-
gaining representative.
WE WILL NOT grant wages and other benefits increases in
order to discourage our employees from selecting the Union
as their collective-bargaining representative.
WE WILL NOT threaten our employees that they will not
be permanently employed unless they vote against the Union.
WE WILL NOT refuse to recognize and bargain with our
employees’ designated bargaining agent for the appropriate
unit of employees and WE WILL NOT unilaterally institute
new and/or different work rules or policies without notice to
and bargaining opportunity being afforded to their bargaining
agent.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with Chauf-
feurs, Teamsters and Helpers Local 391, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO as the exclusive bar-
gaining representative of our employees in the appropriate
unit and, if an agreement is reached as to wages, hours, and
other terms and conditions of employment, embody the un-
derstanding in a signed, written document. The appropriate
unit is:
All regular full-time warehouse employees, including
promotions department, computer department, order de-
partment, and shipping and receiving departments, and
group leaders employed at Capitol’s Beechwood Drive,
Greensboro, North Carolina, facility; excluding all other
employees, office clerical employees, and guards and
supervisors as defined in the Act.
WE WILL rescind the new and/or different work rules or
policies unilaterally implemented in January 1991, and return
the status quo ante with respect to the enforcement of old
rules or policies if any existed prior to that time.
WE WILL offer Anthony V. Harris immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of our unlawful conduct, with inter-
est.
WE WILL notify Anthony V. Harris that we have removed
from our files any reference to his discharge and that the dis-
charge will not be used against him in any way.
CAPITOL EMI MUSIC, INC.