David Saxe Productions, LLC & V Theater Group, LLC, Joint Employers

National Labor Relations Board - Administrative Judge Opinions

Aug 27, 2019

28-CA-219225 (N.L.R.B. Aug. 27, 2019)

JD(SF)–25–19
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
DAVID SAXE PRODUCTIONS, LLC and
V THEATER GROUP, LLC, Joint Employers
Cases 28–CA–219225
28–CA–223339
28–CA–223362
28–CA–223376
28–CA–224119
28–RC–219130
and
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE
TECHNICIANS, ARTISTS, AND ALLIED
CRAFTS OF THE UNITED STATES AND
CANADA, LOCAL 720, AFL–CIO
Sarah S. Demirok and Rodolfo Martinez, Esqs.,
for the General Counsel.
Gregory J. Kamer and Nicole Young, Esqs.,
(Kamer Zuker Abbott), for the Respondent.
Caren P. Sencer, Lisl R. Soto and Carolyn N .Cohen, Esqs.
(Weinberg Roger & Rosenfeld, LLP), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case over the course of
22 days between September 11 and November 13, 2018, in Las Vegas, Nevada. The case was
tried following the issuance of an order further consolidating cases, consolidated complaint, and
notice of hearing (the complaint) by the Regional Director for Region 28 of the National Labor
Relations Board on August 20, 2018. The complaint was based on a number of original and
amended unfair labor practice charges, as captioned above, filed by Charging Party International
Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied
Crafts of the United States and Canada, Local 720, AFL–CIO (Charging Party, the Union or
Local 720), as well as on post-election objections filed by Charging Party.
The General Counsel alleges that admitted joint employer David Saxe Productions, LLC
(Respondent DSP) and V Theater Group, LLC (Respondent V Theater) (collectively,
Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et. seq. (the Act), inter alia, by discharging employees involved in an
JD(SF)–25–19
2
organizing campaign. The Union filed a petition for an election on April 26, 2018.1 The Board
conducted an election on May 17, pursuant to a Stipulated Election Agreement. The Union lost
the election by a vote of 22 to 19. Seven ballots were cast by discriminatees in this matter, each
of whom is alleged by the General Counsel to have been unlawfully discharged. On May 24, the
Union filed 14 post-election objections, including one based on the discharges. 5
The General Counsel contends that Respondent’s alleged unlawful discharge of union
adherents warrants the opening and counting of contested ballots cast by those individuals; it is
alternately contended that additional objectionable conduct by Respondent warrants setting aside
the election. The General Counsel also seeks, in a separate unit of employees, a Gissel 10
bargaining order based on Respondent’s alleged unlawful conduct. Respondent filed a timely
answer to the complaint denying the commission of any wrongdoing.
At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to
present any relevant documentary evidence, to argue their respective legal positions orally, and 15
to file post-hearing briefs.2 Post-hearing briefs were filed by each party and have been carefully
considered. Accordingly, based upon the entire record herein, including the post-hearing briefs
and my observation of the credibility of the witnesses, I make the following.
20
FINDINGS OF FACT
I. JURISDICTION
Respondent engages in various aspects of providing live shows in Las Vegas, Nevada, and 25
admittedly meets the Board’s jurisdictional standards. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I
additionally find that Local 720 Union is a labor organization within the meaning of Section 2(5)
of the Act.
30
Based on the foregoing, I find that this dispute affects commerce and that the National Labor
Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the Act.
II. THE ALLEGATIONS
35
This case involves concerns actions taken in response to organizing campaigns among two
distinct groups of employees: theater department employees and warehouse workers employed
by Respondent. The majority of allegations concern the former group, a number of whom
Respondent discharged following the onset of their union organizing activity.
40

1 Unless otherwise noted, all dates herein refer to the year 2018.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for
General Counsel’s Exhibit; “R Exh. ” for Respondent’s Exhibit; “U Exh.” for the Union’s
Exhibit; “Jt. Exh.” for Joint Exhibit; “ALJ Exh.” for administrative law judge exhibits; “GC Br.
at for the General Counsel’s post-hearing brief; “R Br. at” for Respondent’s post-hearing brief;
and “U Br.” for the Union’s post-hearing brief.
JD(SF)–25–19
3
It is also alleged that Respondent retaliated against union adherents through various means,
including issuing discipline, reducing work hours and promoting an antiunion employee, in each
case, to discourage employees from engaging in union or other protected activity. Respondent’s
managers are also alleged to have committed various independent 8(a)(1) violations, including
engaging in the surveillance of employees, creating the impression of surveillance, soliciting 5
employee complaints and grievances, threatening employees with discharge and unspecified
reprisals, interrogating employees and promulgating and maintaining unlawful rules.
Numerous of Respondent’s actions—including the discharges—are alleged to constitute both
unfair labor practices, as well as conduct that objectively interfered with the employees’ exercise 10
of free choice in the representation election. Accordingly, depending on the violations found, the
appropriate remedy in this case may include an order that any wrongfully discharged employees’
ballots be opened and counted and/or that a rerun election be conducted.3
The General Counsel also alleges that, following the mass discharge of theater department 15
employees, Charging Party achieved majority status among a different group of (Respondent’s
warehouse technicians) under circumstances (including the discharge of a lead union adherent)
rendering appropriate the issuance of a Gissel bargaining order.
III. SUMMARY OF FINDINGS20
As a general matter, I find that Respondent violated the Act as alleged, with certain
exceptions discussed throughout this decision. With respect to the General Counsel’s adverse
action allegations, I find that Respondent unlawfully discharged 10 employees in response to
union organizing; eight of these discharges occurred under the guise of a “restructuring.” 25
Because seven of the discharged employees subsequently voted subject to challenge at the
representation election, I will recommend that the proceedings in Case 28–RC–219130 be
severed and remanded to the Regional Director and that he be directed to open and count those
ballots in the election held in that case and issue a revised tally of ballots. Should such revised
tally of ballots show that a majority of the valid votes cast at the election were cast for the 30
Charging Party, I will, by my order, recommend that Charging Party be certified.
I have also found merit to certain of Charging Party’s objections (Objections 4, 7, and 14).
In light of these findings, I will further recommend that, should the revised tally of ballots show
that Union did not receive a majority of the ballots cast, the Regional Director shall set aside the 35
election and conduct a new election. With respect to the General Counsel’s request for a Gissel
bargaining order with respect to Respondent’s warehouse employees, I decline to recommend
such an order, but rather determine that a notice reading and explanation of rights are sufficient
to remedy Respondent’s unfair labor practices.
40
IV. SEQUESTRATION ORDER
At the outset of trial, on a motion by the General Counsel, I issued a sequestration order
pursuant to Rule 615 of the Federal Rules of Evidence. See Unga Painting Corp., 237 NLRB

3 See, e.g., Franklin Preparatory Academy, 366 NLRB No. 67 (2018).
JD(SF)–25–19
4
1306 (1978). This order, based on the Board’s model Greyhound language,4 provided that, with
certain enumerated exceptions, provided that “no witness may discuss with any other potential
witnesses either the testimony that they have given or that they intend to give” and also
that “counsel for a party may not in any manner, including the showing of transcripts,
inform a witness about the contents of testimony given by a preceding witness without my 5
express permission.” (Tr. 7–9.) As the Board has observed, the practice of sequestering
witnesses is preventative and intended “. . . to minimize fabrication and combinations to
perjure as well as mere inaccuracy.” Unga Painting Corp., 237 NLRB at 1307.
The proper remedy for a violation of a sequestration order is a matter within the discretion of 10
the trial court. See United States v. Ortega-Chaves, 687 F.2d 1086 (1982). In Board practice,
the most common remedy for such a violation is to apply “stricter scrutiny of the tainted
testimony,” without striking the testimony of that witness. Medite of New Mexico, Inc., 314
NLRB 1145, 1149 (1994), enfd. 72 F.3d 780 (10th Cir. 1995). Nevertheless, violating a
sequestration order “may warrant striking the tainted testimony if it can be demonstrated that a 15
party was prejudiced by the violation of the rule.” Suburban Trails, 326 NLRB 1250 fn. 1
(1998); see also Gossen Co., 254 NLRB 339, 342–344 (1981).
During the course of the hearing, counsel for the General Counsel and Respondent’s counsel
each brought to my attention potential violations of this order. My conclusions regarding these 20
allegations are set forth at pertinent sections of this decision. Where appropriate, I have applied
stricter scrutiny to testimony I consider tainted by a particular violation; for the reasons stated
herein, I decline to strike the testimony of any particular witness.
V. GENERAL FACTUAL BACKGROUND25
The events underlying this case largely occurred at Respondent’s Las Vegas showrooms (i.e.,
theaters)—the V Theater and the Saxe Theater—which are situated within a shopping arcade
referred to as the “Miracle Mile shops.” The V Theater is actually comprised of four separate
showrooms, including three working theaters referred to as VI, V2, and V3, as well as a theater 30
used as a dance studio and audition space. The Saxe Theater is located approximately 1,000 feet
from the V Theater showrooms, and it is not uncommon for workers to be assigned to more than
one showroom. (Tr. 54–56, 3428, 3439–3440.)
A. Respondent’s Workforce 35

Respondent’s theater operation employs ushers, box office employees, wardrobe employees,
porters, stagehands, lighting technicians, and audio technicians. Lighting technicians (or
“lighting techs”) are responsible for operating consoles to create lighting effects during
performances; they also run spotlights. Audio technicians (“audio techs”) repair, maintain and 40
program audio equipment, operate audio decks to play computer recorded tracks, as well as to
control the sound levels during the show. They are also responsible for running monitors, which
are used by performers to hear the playback from the stage. (Tr. 58–60, 1889, 1984–1985.)

4 See Greyhound Lines, 319 NLRB 554, 554 (1995) (adopting model statement to be used at the
outset of a hearing where sequestration has been requested).
JD(SF)–25–19
5
Stagehands (sometimes referred to as “stage techs”) are responsible for moving props
onstage based on established cues, as well as setting props and equipment for shows, and
removing props and equipment after shows. Each stagehand is assigned a designated set of cues
or moves, called a “track” for the show to which they are assigned. Outside of performances,
certain of Respondent’s employees, referred to as “day crew,” are responsible for general theater 5
maintenance, including repairing and maintaining props and equipment. Stagehands who are
assigned to work a show are sometimes also employed as day-crew employees. (Tr. 61–62, 93–
94, 1022, 1143, 1515, 1741, 1974.)
Respondent also employs individuals at a separate headquarters/warehouse facility located 10
approximately 15 minutes away from the theaters (the Oquendo facility). The warehouse portion
of the building is the location of Respondent’s maintenance and repair operation, where the
warehouse technicians work. This building also contains a dance studio, a call center operation
and various administrative operations, including employees performing accounting, legal, IT,
sales, and marketing functions. (Tr. 78, 3545.)15
B. Respondent’s Officers, Managers, and Supervisors
1. Respondent’s upper management team
20
Respondent’s owner, president and CEO is David Saxe (Saxe). Until February 21, 2018,
Saxe’s second-in-charge was Production Manager Jason Pendergraft (Pendergraft), who was
responsible for overseeing all technical production aspects of shows, including lights, sound,
wardrobe, and stage. Around the same time that Respondent’s theater employees began
their organizing campaign, Respondent discharged Pendergraft for embezzlement and other 25
transgressions. Following his departure, his managerial duties were absorbed by Production
Coordinator Tiffany DeStephano (DeStefano), who had previously served as his assistant. Like
several individuals working in Respondent’s theater operation, DeStefano has a background in
theater; since 2014, she has been performing in community theater, regularly auditions for roles,
and is occasionally paid for her work. (Tr. 53–54, 137, 2759, 3427–3428, 3441–3442.) 30
Saxe and DeStefano, as well as other upper management and human resources employees,
work a daytime schedule and are officed at the Oquendo facility, where they spend the majority
of their time. Also working at the Oquendo facility is Respondent’s human resources manager,
Takeshia Carrigan (Carrigan). During the relevant time period, Office Manager Jasmine Hunt 35
(Hunt) was in charge of supervising employees at the Oquendo facility, including warehouse
employees. It appears that Hunt resigned in sometime between June and August. (Tr. 74–75,
77–79, 319, 708–709, 2174, 2565–2566, 2831–2834, 3646.)
2. Respondent’s stage management team40
The stagehands at the Saxe Theater are supervised by Stage Manager Thomas Estrada, Sr.
(Estrada). Estrada is an admitted supervisor pursuant to Section 2(11) of the Act. Two other
stage managers, Stephen Sojak (Sojak) and Dan Mecca (Mecca), are assigned to the V1 and V3
JD(SF)–25–19
6
theaters, respectively. The General Counsel alleges, and Respondent denies, that Mecca and
Sojack are supervisors under Section 2(11) of the Act.5
a. Facts
5
As a preliminary matter, Respondent’s business records indicate that the duties of admitted
Estrada are essentially the same as those of Mecca and Sojack. They are each in charge of all
aspects of a performance and ultimately responsible for the show’s quality, as well as ensuring
the safety to the performers and the stagehands. They are also responsible for assigning cues
tracks to individual stagehands to perform during shows. There is no evidence, however, that 10
these assignments are based on an independent evaluation of their skills and experience. During
shows, the stage managers also serve as stagehands (i.e., setting, striking and moving props and
set pieces). That said, as discussed infra, their assigned stagehand “track”—cue calling—is more
complex and challenging than the other tracks, as it involves ordering stagehands when to
perform individual tasks and relaying information between the stagehands, lighting and sound 15
techs, and the show’s cast and band stage crew. (Tr. 781–783, 1648, 3165–3168, 3178–3180,
3195, 3203–3205, 3208–3209; GC Exh. 13.)
The General Counsel adduced no evidence that either Mecca or Sojack have ever hired, fired,
transferred, suspended, recalled, promoted, or adjusted the grievances of, any employee. 20
However, as DeStefano explained, when she is off-property during the evenings (when shows
are actually performed), the stage managers are responsible for monitoring employee compliance
with Respondent’s policies and procedures, including attendance, job performance and safety
standards, just as she would during the day. As she testified, they each also regularly
recommended discipline for employees, and she typically follows those recommendations 25
without conducting any independent investigation of the underlying events. (Tr. 73–76, 84, 627,
3164–3165, 3191.)
Stage managers, who have offices at the theaters, also perform certain non-stagehand duties
outside of performances, including maintaining or “up keeping” the stage (i.e., maintaining show 30
pieces, sets and props), making necessary repairs in the theater, keeping inventory, creating
employee work schedules, designing cue tracks, interacting with the show’s cast and or band and
running rehearsals. Unlike stagehands, the stage managers attend “stage managers’ meetings,”
which include the heads of the various departments (i.e., lighting, audio, wardrobe, etc.). (GC
Exh. 13 at 5; Tr. 79, 226, 3194–3195, 3211, 3214).35

b. Analysis
Section 2(11) of the Act defines “supervisor” as
40
any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct

5 See GC Exh. 1(aq). Although both Mecca and Sojack are also alleged to be agents under
Sec. 2(13) of the Act, the General Counsel makes no argument in support of these allegations; I
therefore consider them abandoned.
JD(SF)–25–19
7
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing, the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
5
An individual need possess only one of the enumerated indicia of authority in order to be a
statutory supervisor, so long as the exercise of such authority is carried out in the interest of the
employer and requires the use of independent judgment. See Sheraton Universal Hotel, 350
NLRB 1114, 1115 (2007) (citations omitted). The burden of proving supervisory status rests
with the party asserting it. See id. (citing NLRB v. Kentucky River Community Care, Inc., 532 10
U.S. 706, 711–712 (2001)).
The General Counsel argues that Mecca and Sojack are supervisors because they effectively
recommend discipline. I agree. The authority to effectively recommend means that “the
recommended action is taken without independent investigation by superiors, not simply that the 15
recommendation is ultimately followed.” Children’s Farm Home, 324 NLRB 61, 61 (1997).
Thus, the Board will find supervisory status where the party asserting it proves, by the
preponderance of the evidence, that an individual makes recommendations to discipline
employees and that such recommendations are typically accepted by upper management without
further investigation. See Sheraton Universal Hotel, 350 NLRB 1114, 1116 (2007); 20
Mountaineer Park, Inc., 343 NLRB 1473, 1474–1475 (2004); Progressive Transportation
Services, 340 NLRB 1044 (2003); Beverly Health & Rehabilitation Services, 335 NLRB 635,
669 (2001), enfd. in pertinent part 317 F.3d 316 (D.C. Cir. 2003).
This, DeStefano admitted, is precisely what occurs at Respondent’s theaters, which are 25
essentially left in the stage managers’ hands following her pre-show departure each day. Indeed,
she was unequivocal that, in issuing discipline, she regularly relied upon the recommendations of
Sojack and Mecca without conducting any independent investigation before doing so. Sojack
and Mecca’s supervisory status is corroborated by secondary indicia; both managers attend
“stage manager meetings” and maintain offices at the theaters. Thus, Respondent treat and hold 30
them out to others as supervisors. As such, I find that Sojack and Mecca are each supervisors
within the meaning of Section 2(11) of the Act.6
C. Respondent’s “Camera Culture”
35
By Saxe’s own admission, approximately 140 cameras are located throughout the theaters,
and an additional 60–70 additional cameras operate throughout the Oquendo facility. As Hill
testified, other than a few, selected spots such as bathrooms and changing areas, “[t]here wasn’t a
single spot that you could go to in the theater where you wouldn’t be seen on a camera . . .” The
cameras record events and also send live streams to video monitors in Saxe’s office, which 40
allows him to observe hundreds of separate feeds at any given time in order to observe show

6 I do not find, as urged by the General Counsel, that Sojack and Mecca’s supervisory status is also
established by their assignment of work or direction of stagehands during shows. There is simply no
evidence that these functions involve a degree of discretion that rises above the routine or clerical. See
Lynwood Manor, 350 NLRB 489, 490 (2007); see also Dean & Deluca New York, Inc., 338 NLRB 1046,
1048 (2003) (lack of evidence is construed against the party asserting supervisory status).
JD(SF)–25–19
8
productions, as well as the employee conduct. Both he and DeStefano are also able to monitor
the feeds through a smart phone application. Certain of the cameras installed throughout
Respondent’s facilities have microphones and capture audio, although Respondent’s witnesses
claimed that the audio they record is very difficult to discern. The cameras have been in place
for several years, and there is no allegation that they were installed for the purpose of surveilling 5
employees’ union or other protected conduct. (Tr. 80–83, 420, 591–593, 596, 601–602, 606–
607, 1035–1038, 1297–1299, 1365, 1784–1787, 2413–2414, 2467, 3498–3501, 3636.)
D. Respondent’s Disciplinary Practices
10
As Carrigan explained, Respondent employs a progressive discipline system, whereby an
employee is issued an increasing level of discipline for an infraction of the same sort. In other
words, to progress through the steps (verbal warning, written warning, final written warning,
suspension and discharge), an employee must commit the same type of offense (i.e., attendance,
cell phone use, etc.). Respondent elicited testimony from several employees that they believed, 15
despite this progressive discipline system, that Saxe was in the habit of firing people arbitrarily
or on a whim and without warning or progressive discipline. (R. Exh. 64, Tr. 1321–1323, 1554,
1715–1716, 2853–2854.) I give only limited weight to this testimony, however, because it
appeared largely subjective and without foundation.
20
E. Pendergraft’s departure and DeStefano’s ascension in February 2018
Complicating the facts of this case is the management upheaval that occurred close in time to
the onset of the union organizing. As production manager, Pendergraft had been responsible for
overseeing all the technical production aspects of shows, including supervising the theater 25
employees. Respondent contends that, in addition to embezzling from Respondent and
engaging in other misconduct, Pendergraft also shielded underperforming employees from
receiving discipline, in some cases, directly in contravention of Saxe’s directives. (Tr. 257–258,
295, 302–303, 3441–3443.)
30
Within a day or two of Pendergraft’s discharge, Saxe informed DeStefano that she was to
take over his duties. Thus, in mid-February, she became responsible for supervising all of
Respondent’s stagehands, audio and lighting techs, spotlight operators and wardrobe employees.
As Saxe admitted, however, DeStefano had actually, if unofficially, taken over some of
Pendergraft’s job responsibilities prior to his discharge, and, by early February, was 35
consulting directly with Saxe and Carrigan about how to run the department. The starkest
example of this took place on February 6, 2018, when she sent Carrigan a series of three emails
in which she ranked Respondent’s audio techs, stagehands and day crew employees,
respectively, according to their “reliability, attitudes, etc.” (R. Exh. 36; Tr. 258, 319, 2775–
2776, 3467–3468, 3472.) 40
DeStefano’s rankings (which occurred prior to Respondent’s first knowledge of the
organizing campaign, are illuminating in their own right. Among the 21 stagehands, she gave
relatively high rankings to three of the employees who would be approximately 6 weeks later
(second, fifth and seventh). Of the 5 day-crew employees, she ranked two additional future 45
dischargees second and third. (R. Exhs. 30, 31; GC Exh. 84.)
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9
RESPONDENT’S ALLEGED UNLAWFUL HANDBOOK RULES
Respondent maintains certain written handbook policies challenged by the General Counsel
as overly broad and discriminatory. See GC Exh. 1(am) at ¶ 5(b). Until approximately 5
September 2017, the handbooks were issued to new hires in hard copy; after that time, they were
made available to employees via Respondent’s intranet-based payroll system, Paycom.
According to Carrigan’s unrebutted testimony, no employee has ever been disciplined as a result
of any of these policies. Neither Carrigan, or any other witness, testified as to Respondent’s
business purpose or other rationale for implementing any of the rules. (GC Exh. 99; Tr. 2254–10
2255, 2883–2884, 2926–2928.)
A. Restrictions on Employee Blogging [Compl. ¶ 5(b)(2)]
1. Facts15
Respondent’s handbook policy titled, “Blogging” states in relevant part:
Blogging by employees, whether using V Theater Group, LLC’s
property and systems or personal computer systems, is also subject 20
to the terms and restrictions set forth in this Policy. Limited and
occasional use of V Theater Group’s systems to engage in
blogging is acceptable, provided that it is done in a professional
and responsible manner, does not otherwise violate V Theater
Group’s policy, is not detrimental to V Theater Group’s best 25
interests[.]
. . . .
Employees shall not engage in any blogging that may harm or 30
tarnish the image, reputation and/or goodwill of V Theater Group,
LLC and/or any of its employees. Employees are also prohibited
from making any discriminatory, disparaging, defamatory or
harassing comments when blogging[.]
35
(GC Exh. 99 at 27–28, 75.)
2. Analysis
Section 7 provides employees with the right to self-organization and collective bargaining, as 40
well as the right to act together for their mutual aid or protection. These rights have long been
interpreted to “necessarily encompass[] the right effectively to communicate with one another
regarding self-organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 491
(1978). This includes employee communications regarding their terms and conditions of
employment. Central Hardware Co. v. NLRB, 407 U.S. 539, 542–543 (1972); Parexel 45
International, LLC, 356 NLRB 516, 518 (2011) (citing Aroostook County Regional
Ophthalmology Center, 317 NLRB 218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996)).
JD(SF)–25–19
10
The lawfulness under Section 8(a)(1) of a facially neutral rule, such as Respondent’s
“blogging” policy, is evaluated based on the balancing test announced in Boeing Company, 365
NLRB No. 154 (2017). Under this test, it must first be determined whether the rule is one that
the employees would reasonably interpret as “potentially interfer[ing] with the exercise of NLRA 5
rights.” If the answer to that question is affirmative, the Board will next evaluate whether the
“nature and extent of the potential impact on NLRA rights” outweighs any “legitimate
justifications associated with” the rule. Id. at 3–4 and 16.
As a preliminary matter, I find that employees would reasonably interpret the policy 10
restricting communications—via “blog”—that would be detrimental to their employer’s “best
interest” or that may “harm or tarnish” its “image, reputation and/or goodwill” as forbidding
communications that amount to the exercise of core Section 7 rights, such as advocating for their
right to collectively bargain with Respondent. Respondent essentially argues that its rule would
be reasonably understood by employees merely to require “professional” and “civil” blogging, a 15
form of restriction considered in William Beaumont Hospital, 363 NLRB No. 162 (2016), and
characterized by the Boeing Board as a lawful “Category 1” rule under its new test. I disagree.
While portions of Respondent’s prohibition arguably target “uncivil” conduct (i.e.,
discriminatory or harassing comments), unlike the William Beaumont rule, the blogging 20
restriction by its terms captures civil and protected Section 7 conduct, such as blogging criticism
of Respondent’s labor policies. See Southern Maryland Hospital, 293 NLRB 1209, 1222 (1989)
(unlawful to ban “derogatory attacks” on employer representatives; such prohibition necessarily
encompasses protected conduct “such as an assertion that an employer overworks or underpays
its employees”), enfd. in relevant part 916 F.2d 932, 940 (4th Cir. 1990). Thus, violations of the 25
purported “civil blogging” rule would include an employee blogging politely yet publicly, in a
manner that discredits and embarrasses Respondent by accusing it of committing unfair labor
practices. For example, no matter how politely or civilly an employee blogged an accusation
that Respondent was engaging in rampant unfair labor practices, she would reasonably
understand herself to be in violation of the rule. 30
The next inquiry is whether evaluate whether the “nature and extent of the potential impact
on NLRA rights” outweighs any “legitimate justifications associated with” the rule. In this
regard, Respondent—by its post-hearing brief—argues that the blogging restrictions were
“designed to protect employees from unlawful harassment and discrimination” and “other 35
harmful comments.” (R. Br. at 98.) The problem with this defense is obvious: while protecting
employees from harassment and discrimination are laudable goals, they are in no way served by
a rule banning communications that “detrimental” or “tarnishing” to Respondent’s own interests.
Because the rule so squarely disallows civil, courteous blogging that the Act protects, I find that
it cannot be rationalized on the grounds offered by Respondent.40
Accordingly, I conclude that the rule set forth at paragraph 5(b)(2) of the complaint is
unlawful under the Boeing balancing test.
JD(SF)–25–19
11
B. Email and Electronic Communications Policy [Compl. ¶ 5(b)(1)]
The General Counsel also alleges Respondent have violated the Act by barring employees
from customizing their signature blocks on their company-provided email accounts. I disagree.
5
1. Facts
Respondent maintains an “acceptable use” policy regarding employee use of company-
provided computer equipment and systems. This policy provides that:
10
Some casual personal use of the Company’s e-mail and Internet
connection is acceptable with prior approval provided that personal
usage does not become excessive or interfere with the employee’s
productivity. Further, an employee’s company email address is to
be used solely for work related correspondence only. Personal 15
email may be performed via an employer’s third party ISP web mail
or other means, so long as it does not interfere with the Company
email or computer operations.
(GC Exh. 99 at 25, 72) (emphasis added).20
This policy also states, in relevant part:
The following non-inclusive list contains examples of
inappropriate materials that should NOT be sent or received via e-25
mail or Internet Access:
. . .
 Customized signature lines containing personalized quotes, 30
personal agendas, solicitations, etc., (only information
pertaining to name, job title, and contact information
should be included).
2. Analysis35
The General Counsel contends that Respondent’s ban on customized email signature blocks
is unlawful pursuant to the Board’s recently announced Purple Communications presumption. It
is further argued that, separate from this presumption, the ban is discriminatory, because it
singles out “the display of messages or insignia, including protected ones . . .” (GC Br. at 96.) I 40
disagree.
By its Purple Communications decision, the Board overruled its prior ruling in Register
Guard,7 and established a new presumption used to evaluate an employer’s restriction of

7 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing
v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).
JD(SF)–25–19
12
employees’ use of its email system. See 361 NLRB 1050, 1063 (2014). The Board’s decision
was based, in part, on its acknowledgement of the central role email has taken on as workplace
communication mechanism. Id. at 1057 (“[i]n many workplaces, email has effectively become a
‘natural gathering place,’ pervasively used for employee-to-employee conversations”) (citation
omitted). Under the Purple Communications standard, the Board presumes that employees who 5
have been granted access to their employer’s email system in the course of their work have a
right to use that system for statutorily protected Section 7 communications during their
nonworking time. An employer may rebut this presumption by demonstrating that its email
restriction on employees’ rights is justified by “special circumstances” necessary to maintain
production and discipline. Id. at 1063. 10
I find that Respondent’s restriction on customized email signatures does not violate the Act.
It is true that an employee’s including a slogan to her work-provided email signature block
certainly constitutes “use” of that employer’s system for purposes of applying the Purple
Communications presumption. See California Institute of Technology Jet Propulsion 15
Laboratory, 360 NLRB 504, 516 (2014) (customizing company-provided email signature to
include commentary on or criticism of employer constitutes conduct protected by Sec. 7 of the
Act). However, the threshold for the Purple Communications presumption to apply is that the
employer has authorized employees to use their company email addresses to send personal
messages, which Respondent has not. For the same reason, I reject the General Counsel’s 20
contention that Respondent’s restriction is discriminatory in nature; Respondent has effectively
inoculated itself from such a claim by flatly prohibiting employees’ personal use of the
company-provided email system.
As such, I recommend that the allegation stated in paragraph 5(b)(1) of the complaint be 25
dismissed.
F. Non-solicitation/Distribution Policy [Compl. ¶ 5(b)(3)]
1. Facts30
Respondent also maintains a Non-Solicitation/Distribution policy, which includes various
prohibitions on employee conduct and further states that both solicitation and distribution by
non-employees on Respondent’s premises is prohibited at all times. The policy also contains the
following language:35
Requests from outside people or organizations to sell merchandise,
solicit contributions, distribute literature, arrange displays, or use
Company facilities should be referred to the Human Resources
Representative. 40
(GC Exh. 99 at 31–32, 79–80.)
2. Analysis
45
It is well established that employees have a right to solicit during non-working time and
distribute literature during non-working time in non-working areas. Stoddard-Quirk Mfg. Co.,
JD(SF)–25–19
13
138 NLRB 615 (1962). The Board’s decision in Boeing does nothing to disturb this
longstanding precedent, “which already strikes a balance between employee rights and employer
interests.” See UPMC, 366 NLRB No. 142, slip op. at 1 fn. 5 (2018). As the General Counsel
correctly states, it is also unlawful for an employer to require its employees to report, or obtain
permission for, engaging in solicitation or distribution during non-working time. Cardinal Home 5
Products, Inc., 338 NLRB 1004, 1005–1006 (2003); Teletech Holdings, Inc., 333 NLRB 402
(2001); Norris/O'Bannon, 307 NLRB 1236, 1245 (1992); Brunswick Corp., 282 NLRB 794, 795
(1987).
The Board has long recognized that an employer’s request that employees report contact with 10
outside union organizers are unlawful, in that it has the potential dual effect of encouraging
employees to report the identity of union solicitors and of correspondingly discouraging union
solicitors in their protected organizational activities. W. F. Hall Printing Co., 250 NLRB 803
(1980); see also C.O.W. Industries, 276 NLRB 960 (1985); J. H. Block & Co., 247 NLRB 262
(1980).15
Respondent, which offers no justification for its “referral” requirement, assert that it is
merely a lawful restriction on the conduct of outside organizations and therefore has no adverse
impact on employees’ Section 7 conduct. I find that this too narrow a reading. The requirement
is contained within a broader non-solicitation/distribution policy that very clearly governs 20
employee conduct and which also makes clear that Respondent have already banned solicitation
and distribution by third parties on their premises. As such, an employee would reasonably
understand the reporting requirement to mandate that they disclose any third-party (i.e., union)
attempt to enlist them to solicit in order to sidestep Respondent’s announced third-party ban.
This would effectively dictate that an employee recruited as a union card solicitor inform 25
Respondent’s human resources of that fact or face discipline. Based on the Board’s above-cited
authority, I find this rule—for which Respondent offer no valid business justification—infringes
on core employee organizational rights and is therefore abhorrent to the Act.
30
THE THEATER EMPLOYEES’ UNION ORGANIZING CAMPAIGN
The organizing campaign that is the subject of this proceeding was initiated by a former
member of Respondent’s management team, David Devito (Devito). Devito happened to be
close with two theater employees—Steve Urbanski (Urbanski), who was his roommate, and 35
Nathanial Franco (Franco), his personal friend. In mid-February, Devito reached out (both
online and offline) to them, as well as another employee, Zach Graham (Graham), and pitched
them on the idea of meeting with representatives of the Union. (Tr. 117, 1282, 1284, 2262–
2263.)
40
In mid-February, Urbanski, who is a current lighting tech, spoke with several of his
coworkers, including stagehand and day-crew employee Leigh Ann Hill (Hill). Devito then
enlisted Hill to talk to the other stagehands about the Union. Approximately a week later, Hill
spoke to approximately 10 stagehands, either in the theater’s parking lot/smoke break area or in
the theaters themselves. Spotlight operator Jasmine Glick (Glick) became involved; she spoke 45
with at least five of her coworkers at the theaters, to see if they were interested in unionizing.
(Tr. 1024–1025, 1368–1369, 1518, 2261.)
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A. February 19: the Facebook Group Chat
Devito initiated a Facebook group chat on February 19, to which he electronically “invited” a
number of Saxe employees, including Urbanski, Glick, Franco, Zachary Graham (Graham),
Taylor Bohannan (Bohannan), to participate in the online discussion. DiVito used the chat 5
format to encourage the employees to meet (in person) with representative of the Union, in order
to organize for a contract and job security. On February 21, Devito invited Hill to the chat; she
enthusiastically accepted, posting, “I’m pro union always!” Within minutes, Hill, in turn, added
five more individuals to the chat. Fatefully, two of her invitees were Stage Manager Mecca and
stagehand Courtney Kostew, who happened to be Stage Manager Estrada’s girlfriend. This 10
meant that they each gained access to the entire online discussion as of that date. Mecca
admitted that, even though he did not accept the invitation, he was able to see the discussion,
which piqued his interest.8 As he explained, he saw a “few familiar names” and “kind of caught
on that there was some drama happening . . .” and that the gist of the discussion was that
employees were complaining about Respondent and “having issues.” Notably, Mecca did not 15
deny telling upper management what he had seen in the Facebook group chat. (Tr. 859–860,
889–890, 1027, 1203, 1284–1285, 1365, 1649, 1935, 3172–3173, 3184–3186; Jt. Exh. 2 at 1–4).
Two days later, one member of the group chat set up an online poll whereby employees
could vote on the following question: “Vote to unionize [S]axe?” In response, Bohannan, 20
Urbanski, Hill, Franco, Kostew, Graham, along with six other employees, voted “yes.” The
employees then discussed setting up a meeting with Local 720 representatives, and, at
Bohannan’s suggestion, decided that a representative from each sub-department of the theater
(i.e., stage, lighting, sound, tech) should attend, as well as anyone else who was interested. Glick
was selected to act as the “liason” to the lighting techs, and Urbanski the tech workers. Notably, 25
Kostew hung back and gave another employee her “permission” to represent the stagehands. (Jt.
Exh. 2 at 7–9, 15–17, 18; Tr. 1284–1285.)

The employees then planned to meet at 3:30 p.m. on March 1 at “Elara,” a restaurant located
near the theaters. The time and venue were chosen so that employees could get to work by 5 30
p.m. for that evening’s performance. (Id. at 21; Tr. 1204.)9
B. Theater management holds “policies and procedures” meetings
Beginning on February 12 and continuing through February 28, Pendergraft and DeStefano 35
held small group meetings with the Saxe Theater stagehands, techs and wardrobe employees.
Attendees were provided with a single-page handout entitled, “Policies and Procedures
Meeting,” which included bullet points detailing various work requirements, such as abiding by
schedules and call-out policies. The handout emphasized that management had an “open door
policy” with respect to any issues affecting employees. (R. Exh. 7; Tr. 1344–1345, 2577.)40

8 Mecca claimed that he was invited to the group chat by Devito, not Hill, but he was
impeached by the transcript of the chat on this point. (Jt. Exh. 2.)
9 Originally, there was an abandoned effort to schedule the meeting for February 28, which
explains why some witnesses testified that it was held that day. The online discussion, however,
makes it clear that the meeting was rescheduled to March 1. (See Jt. Exh. 2.)
JD(SF)–25–19
15
The bullet point handout closed with a warning that failure to abide by the various bulleted
rules could result in disciplinary action, followed by the following message:
Everything discussed in the meeting today is a good thing!
Efficiency, teamwork, ownership, and accountability are a must, so 5
we can all come to work and enjoy it! We have a lot of new
projects coming in and we want a fun, positive work environment!
Be proud of what you do and take pride in your work! Here’s to a
fun and successful future!
10
(R. Exh. 7.) As one attendee described it, the general theme of the meeting was that
management was intending to follow its policies and procedures, even if it had not done so in the
past. (Tr. 1244.) Notably, there is no evidence of similar meetings having been held in the past.
DeStefano offered two explanations for these meetings being held: first, she testified that 15
Pendergraft set them up in response to her concerns about employee policy violations; then, she
claimed that there had been complaints about a certain employee’s hygiene, and the meeting was
held as a pretext to communicate this single point without embarrassing that person. (Tr. 635,
2577.) As to was become a habit, DeStefano simply piled on too many innocent explanations for
Respondent’s conduct; I find it significantly more likely that Respondent rolled out the 20
meetings—reiterating work rules, reminding employees of the “open door policy,” and putting a
positive spin on workplace morale— as an early preemptive response to a nascent organizing
campaign.
C. Management Observes Zack Graham Handing Out Union Authorization Cards25
Numerous witnesses, including Saxe and DeStefano, testified about the activity Respondent
claims constituted its first notice of the organizing campaign. This was card soliciting activity by
one of the original members of the organizing group—Graham—that was reported to Estrada.
Specifically, a day-crew employee told told Estrada that he had observed Graham in the Saxe 30
Theater parking garage (which serves as an employee break/smoking area) handing out union
cards. After observing Graham himself, Estrada called DeStefano and reported the situation.
DeStefano told him to leave Graham along and that she would “take care of it.” DeStefano then
relayed Estrada’s report to Saxe, who concluded, “oh, no, maybe they are unionizing.” (Tr. 666,
697–698, 2614, 3473.) 35
While Respondent’s knowledge of Graham’s card soliciting is undisputed, DeStefano and
Saxe insisted that Estrada only observed and reported it in early April (i.e., after Graham and
other union adherents had been discharged). Inconveniently, however, both Estrada and the
reporting day-crew employee credibly contradicted this, establishing that the event occurred 40
earlier, in late February. I therefore do not credit the testimony of Saxe and DeStefano10 and

10 While generally laid back and genial in his demeanor, Saxe appeared uncharacteristically
focused on ‘sticking his landing’ when placing this event in April; DeStefano, for her part,
oversold the narrative that Graham had been a former employee when he was observed,
mentioning this fact multiple times.
JD(SF)–25–19
16
instead find that Graham was observed circulating union cards not following his discharge, in
April, but rather prior to his discharge, in late February. (Tr. 994–995, 3101–3104.)
My conclusion is supported by further evidence that Graham’s card soliciting had come to
management’s attention by late February/early March when he indirectly confronted an 5
employee about it. On the occasion in question, Graham pitched future stagehand Alansi
Langstaff (Langstaff) on the idea of signing a union card while they were walking out the theater
doors to the parking garage/break area (i.e., the same place Estrada had earlier observed him
passing out cards). Langstaff indicated he was willing to sign the card, and Graham referred him
Glick to obtain one. During this exchange, Langstaff noticed Estrada observing them. When 10
Graham walked away, Estrada and Langstaff reentered the theater; holding the door for
Langstaff, Estrada told him, “I’d be careful being seen talking to [Graham] if I were you.” (Tr.
1825–1827, 1872.)11 This statement is alleged by the General Counsel to constitute a threat,
creation of the impression of surveillance and the promulgation and maintenance of an overly
broad directive. See Compl. ¶ 5(c). 15
I agree with the General Counsel as to the first two, but not the third, allegation. There is
little doubt that, considering the timing and context of Estrada’s comments, that a reasonable
employee in Langstaff’s shoes would understand that his union activities had been observed and
think twice about following through with his plan to sign a union card. Q-1 Motor Express, Inc., 20
308 NLRB 1267, 1276 (1992) (supervisor’s statement that he knew union cards were being
circulated and employee should “stay away” from employees involved constituted threat and
impression of surveillance). In this regard, I note that Estrada’s warning indicated more than a
general awareness of organizing activities, see, e.g., National Hot Rod Assn., 368 NLRB No. 26,
slip op. at 2 (2019); based on the sequence of events, what he imparted to Langstaff was that 25
Graham in particular was a pro-union employee whose card soliciting was being monitored by
management. As such, I find that Respondent, by Estrada, violated the Act as set forth in
paragraphs 5(i) and (ii) of the complaint.
That said, I do not agree that Estrada promulgated an unlawful rule. As the Board has found, 30
a remark such as Estrada’s made to a single employee, does not constitute the promulgation of a
rule of general applicability sufficient to violate the Act. Food Services of America, Inc., 360
NLRB 1012, 1016 fn. 11 (2014) (no unlawful rule based on supervisor advising employee to stay
away from recently discharged employee). Accordingly, I recommend that complaint paragraph
¶ 5(iii) be dismissed.35
D. Organizing employees approach Stage Managers about the Union
During the last week of February, Glick also spoke with stage manager Dan Mecca and asked
if he would be interested in attending the upcoming union meeting and “joining the campaign.” 40
Mecca responded that he did not want to get involved. In a pattern he was to repeat throughout
his testimony, Mecca partially acknowledged such a conversation, claiming instead that he had

11 I credit Langstaff’s account. He clearly had a sharp recall of the interaction, and that he
initially struggled to recall Estrada’s precise language in my view enhanced, rather than detracted
from, his credibility. By contrast, Estrada’s denial was awkward and he appeared uncomfortable
discussing conversations he may have had with Langstaff. (Tr. 843.)
JD(SF)–25–19
17
received a text from Glick, asking him if he was interested in getting paid more at work, to which
he responded that he did not want any part “of whatever’s going on.” (Tr. 1025–1027, 1118,
3175; Jt. Exh. 2 at 3.)
Stage Manager Sojack was approached by an employee about the campaign around the same 5
time. On approximately February 26, stagehand Joshua Prieto (Prieto) approached Sojack
backstage at the V Theater and asked what he thought of unions. Sojack responded that he
believed that workers had the right to organize, and Prieto informed him that a group of
Respondent’s employees was going to meet with union representative.12 Called as Respondent’s
witness, Sojack did not rebut this testimony, and further admitted that, at some point “during the 10
spring,” he became aware of the organizing campaign, when he overheard Prieto discussing the
Union with audio tech Bryce Petty and stagehand Darnell Glen backstage discussing the Union
and specifically mentioning “people they were talking to about organizing.” (Tr. 1938–1941,
3202, 3235–3236.)
15
E. Events of March 1
As noted, the first, in-person organizing meeting was scheduled for 10:00 p.m. on March 1.
Earlier in that day, however, drama ensued—both in the workplace and within the organizing
group. The main players were employees Hill and Kostew, as well as DeStefano.20
1. Hill complains to DeStefano about pay and working conditions
Hill was hired in mid-August and considered a talented and conscientious employee, as
evidenced by DeStefano ranking her 2nd of Respondent’s day crew employees on February 5. As 25
discussed, supra, Hill was an early, vocal and enthusiastic supporter of the employees’
organizing effort who reached out to over a dozen employees either in person or online regarding
the Union. At the end of her shift on March 1, Hill approached DeStefano to ask for 2 days off
so that she could work a 4–day “gig” for another employer (a relatively common occurrence at
the theaters). She assured Stefano that she had already worked out coverage with other 30
stagehands, to which to DeStefano stated that there was no problem with her request and
instructed her to put it through Paycom (Respondent’s online scheduling program). (Tr. 1022–
1028, 3201; GC Exh. 84; R. Exh. 32; Jt. Exh. 2 at 1–4.)
Hill then told DeStefano that morale at the theaters was really low and that employees were 35
unhappy with their pay. DeStefano responded by telling Hill to be patient and that
improvements were coming. Hill became angry and, in a raised voice, peppered her complaints
with salty language; for example, she referred to being underpaid as “bullshit” and “unfair.” At
this point, Respondent’s Director of Operations Michael Moore (Moore) intervened, whereupon
Hill apologized and left the office. (Tr. 675, 1027–1029, 1084–1086.)40
DeStefano’s version of the meeting was quite different. Hill, she claimed, did not merely
request 2 days’ leave, but rather announced that she was taking on another job that might conflict
with her work schedule at the theater. Then, according to DeStefano, the two women had

12 Prieto testified as a current employee and was especially credible. He had a good memory
for details, came across as balanced and not prone to exaggeration.
JD(SF)–25–19
18
another conversation “a few days later” in which Hill, “in a complete rage,” screamed at her.
DeStefano could not recall if Hill complained about wages during this exchange, but she was
careful to note that she “felt very cornered” by Hill and “did not want to be in there alone with
her.” Notably, Moore was not called by Respondent to corroborate any part of DeStefano’s
account. (Tr. (Tr. 325–326, 507–508, 675.)5
I credit Hill’s version of this exchange. She presented as an intense individual, but also very
precise in relating events and not prone to embellishment. In response to efforts by
Respondent’s counsel to get her to admit that she resigned her employment during the meeting,
she remained calm, factual and non-combative.13 10
2. Hill falls out with Kostew online
After leaving work, Hill logged on to the Facebook organizing chat, where she got into an
online argument with Kostew. Essentially, Kostew accused Hill of being “good friends” with 15
DeStefano and even suggested that Hill may have informed her about the group’s organizing
efforts. After multiple posts back and forth, Kostew announced to the group, “I’m tapping out to
avoid further aggravation and unnecessary bullshit.”14 At hearing, she explained that she decided
to part ways with the group because, in her words, “I needed to work . . . and didn’t want to be
involved anymore, risk losing my job.” Kostew’s concern about losing her job in fact resulted 20
from a conversation she had had with Estrada, in which he warned her that supporting the Union
might result in mass discharges. As she later admitted to Prieto:
I was all about it but I think I’m gonna tap out. [Estrada] said the
other few times there have been union possibilities everyone 25
involved was fired and I really cannot afford to lose this job.
On March 2, Hill removed Kostew from the group chat. (Tr. 859, 872–873, 876–877, 1029–
1032; GC Exh. 58; Jt. Exh. 2.)
30
3. The union meeting and notice to management
On the night of the first, in-person organizing meeting (March 1), Graham dropped by the
theater and spoke with Estrada about the campaign and the benefits of unionizing. Estrada’s
response was blunt: he said he was not interested. I credit Graham’s account; Estrada, who 35
described Graham as his personal friend, nonetheless denied ever discussing the union campaign
with him. (Tr. 820.) While I found Estrada at times to be a credible (if forgetful) witness, this
particular denial was noticeably forced and awkward and I do not credit it.

13 That Hill did not tender her resignation on March 1 is further evidenced by a Facebook
message she posted later that very night, in which she refers to resisting the temptation to quit
and instead “hanging on” in the hopes of furthering the employees’ organizing effort. (Jt. Exh. 2
at 26.)
14 As Kostew’s accusation appeared to be wholly fabricated, it is reasonable to infer that she
contrived it as an excuse to bow out of the online discussion while simultaneously deflecting
attention from her own connection to Estrada.
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19
Approximately 10 employees attended the first organizing meeting, including Urbanski,
Graham, Bohannon and Glick, as well as Devito and two Local 720 representatives. The group
discussed a plan for the Union to represent various departments (i.e., lighting, sound, stage) at
the theatres. Following the meeting, Prieto told Sojack about it, Sojack asked how it had gone,
and Prieto relayed what the union representatives had said to the employees. (Tr. 1204, 1367–5
1368, 1650–1651, 1938–1941, 1979, 2264.) I credit Prieto as to this conversation, whose
testimony went undenied by Sojack.15
RESPONDENT’S INITIAL RESPONSE TO EMPLOYEE ORGANIZING
10
The General Counsel alleges that, during March, Respondent undertook certain unlawful
actions in response to the organizing activity, including: discharging Hill; soliciting stagehands
to work at the Saxe Theater on the same night as a second, in-person organizing meeting was
scheduled; granting employees a retroactive, across-the-board wage increase; interrogating
employees; and making coercive statements.15
A. Hill’s March 2 Discharge [Compl. ¶ 5(f)]
1. Factual background
20
March 2 was to be Hill’s last day of employment. According to DeStefano, she called Saxe
that day and informed him about her confrontation with Hill, and they decided to discharge her.
The decision, she testified, was based on Hill reporting to her that she had chosen to take on
outside work and was refusing to commit to scheduling that work around her hours at the theater.
Saxe initially testified that he was not involved in the decision to discharge Hill, but he later 25
switched his story to jibe with that of DeStefano. DeStefano also claimed that she consulted
with Carrigan about the rationale for discharging Hill. This Carrigan flatly denied, twice
testifying that the only person she spoke with about discharging Hill was Saxe himself, who
ordered her to inform Hill that she was being “terminated for restructuring and for retaining other
employment,” which she did. (Tr. 87, 94–98, 322, 675–676, 719, 1032–1033, 2111.)30
DeStefano and Saxe offered multiple reasons to justify Hill’s discharge—she had been a
problem employee “for quite some time,” “constantly violated policies,” was “not a good
worker,” and was lazy (“almost never working”). They further claimed to have considered
discharging her months earlier, insisting (as was to become a common theme in explaining the 35
timing of Respondent’s discharge decisions). This storyline, however, was significantly
undercut by Hill’s direct supervisor, Stage Manager Sojack, who testified that, far from
displaying performance issues, Hill “performed well” and was “conscientious.” (Tr. 98–99,
325–327, 3201, 3480–3481.)
40
Hill’s discharge documentation, a form Respondent refer to as a “PAF” (i.e., “personnel
action form”), was not completed until 3 days following her discharge and makes no specific
mention of her inability to commit to her schedule. Instead, under the form’s section entitled,
“Termination Reason,” it simply states, “Violation of Company policies, poor attitude.” On the

15 Prieto testified as a current employee and was especially credible. He had a good memory
for details, came across as balanced and not prone to exaggeration.
JD(SF)–25–19
20
day Carrigan approved the PAF, she emailed DeStefano that she “needed statements” from her
regarding Hill, because she had “nothing on her” except that she had a “bad attitude” and was
“rude.” In response, DeStefano forwarded a lengthy diatribe recounting Hill’s alleged history of
misdeeds; she also used this occasion to explain the dearth of prior documentation on Hill,
claiming that, under Pendergraft’s reign, she had not been allowed to inform Carrigan regarding 5
Hill’s performance problems and moreover had “never been able to document” them. The result,
she lamented, was that Hill “on paper seemed like the perfect employee.” (GC Exhs. 17, 18; Tr.
2064, 2113.)
After receiving a trial subpoena that sought, inter alia, Hill’s discharge paperwork, DeStefano 10
made a last-minute effort to shore up the rationale for her discharge. As Carrigan testified, she
observed DeStefano, during the process of gathering documents responsive to the subpoena, add
a handwritten entry to Hill’s discharge PAF in the “termination reason” section, so that, after the
“poor attitude” entry, it then stated, “+ secondary employment.” (GC Exh. 78; Tr. 2124–2127.)
15
2. Hill’s alleged sequestration order violations
After I issued the sequestration order, several discriminatees then present in the courtroom
were excused pursuant to the order, whereupon a number of them, including Hill,16 set out for a
more enjoyable venue—the Fremont Casino and Bar in Downtown Las Vegas (the Fremont). 20
While at the Fremont event, it appears that discriminatee Hill engaged in some “smack talk”
about her old nemesis, Kostew, in the presence of several others, recounting the online argument
she had with Kostew the night before she was discharged. She and Michaels also reminisced
about a prior incident regarding Kostew in January. Respondent urges me to apply stricter
scrutiny to the testimony of Hill, and the other employees present, based on this.25
I decline to do so. I do not find that the general gossip among employees regarding the
historical animosity between Kostew and Hill, tainted any witness’ testimony on a relevant fact
in dispute in this matter, such that it could have prejudiced Respondent, nor has Respondent
identified any such testimony. There is no dispute that the two women did not get along, and 30
their online argument is set forth in a joint exhibit of the parties. As such, I decline to find that
the discussion at the Fremont event regarding Kostew and Hill’s falling out violated the
protective order in any meaningful way.
3. Analysis35
The complaint, at paragraph 5(f), alleges that Respondent discharged Hill based on her
protected, concerted activities in violation of Section 8(a)(3) and (1) of the Act. Specifically, it
is contended that, around March 1, Hill concertedly complained about employees’ working
conditions by informing DeStefano that Respondent’s employees were unhappy with their pay, 40
and that Respondent was additionally aware that Hill was an open and active participant in the
organizing campaign. (See GC Exh. 1(am) ¶ 5(a), (f).) I find, as discussed, infra, that the
General Counsel has established, by a preponderance of the evidence, that Respondent did in fact
discharge Hill in retaliation for her union and other protected, concerted activities.

16 According to the General Counsel, this group consisted of discriminatees S’uapaia,
Michaels, Franco, Graham, Glenn, Gasca, Bohannon, Glick, Hill, and Langstaff. (Tr. 771.)
JD(SF)–25–19
21
a. The statutory framework
Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. 29 5
U.S.C. § 158(a)(1). Rights guaranteed by Section 7 include the right to engage in union
activities and “concerted activities for the purpose . . . of mutual aid or protection.” The concept
of “mutual aid or protection” focuses on the goal of concerted activity; chiefly, whether the
employee or employees involved are seeking to improve terms and conditions of employment or
otherwise improve their lot as employees. Fresh & Easy Neighborhood Market, 361 NLRB 151, 10
153 (2014). Concerted activity includes activity that is engaged in with or on the authority of
other employees, but also activity where an individual employee brings truly group complaints to
the attention of management. See Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I),
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985), supplemented Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. 15
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Section
8(a)(3) provides that it is an unfair labor practice for an employer “by discrimination in regard to
hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3).
20
The applicable framework for cases that turn on employer motivation, such as this one, was
established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under that framework, the General Counsel must prove by a
preponderance of the evidence that an employee’s protected concerted activity was a motivating
factor (in whole or in part) for the employer’s adverse employment action. This burden is 25
typically met by showing the employee engaged in protected activity, employer knowledge of
that activity, and animus on the part of the employer towards protected activity. Cayuga Medical
Center, 366 NLRB No. 170, slip op. at 1 and 30 fn. 1 (2017); Dish Network, 363 NLRB No. 141,
slip op. at 1 fn. 1 (2016); Libertyville Toyota, 360 NLRB 1298, 1301 (2014). Proof of such
unlawful motivation may be based on direct evidence or may be inferred from circumstantial 30
evidence based on the record as a whole. Robert Orr/Sysco Food Services, 343 NLRB 1183,
1184 (2004), enfd. 184 Fed.Appx. 476 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB
846, 848 (2003).
If the General Counsel makes this initial showing, the burden shifts to the employer to 35
demonstrate by a preponderance of the evidence that the same action would have taken place
even in the absence of the protected conduct. See Shamrock Foods Co., 366 NLRB No. 117, slip
op. at 26–27 (2018), and cases cited therein. In this regard, it is not sufficient for the employer
merely to produce a legitimate basis for the adverse employment action or to show that the
legitimate reason factored into its decision. T. Steele Construction, Inc., 348 NLRB 1173, 1184 40
(2006). Instead, it “must persuade that the action would have taken place absent protected
conduct by a preponderance of the evidence.” Weldun International, 321 NLRB 733
(1996) (internal quotations omitted), enfd. in relevant part 165 F.3d 28 (6th Cir. 1998); see NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983) (approving Wright Line and rejecting
employer’s claim that its burden in making out an affirmative defense is met by demonstration of 45
a legitimate basis for the adverse employment action).
JD(SF)–25–19
22
That said, under the Wright Line framework, as part of his initial showing, the General
Counsel may also offer proof that the employer’s reasons for the personnel decision were
pretextual. Con-Way Freight, Inc., 366 NLRB No. 183, slip op. at 2–3 (2018) (citing Pro-Spec
Painting, Inc., 339 NLRB 946, 949 (2003)); National Steel & Shipbuilding Co., 324 NLRB
1114, 1119, fn. 11 (1997)). Indeed, where the employer’s proffered reason is shown to be 5
pretextual, “the factfinder may not only properly infer that there is some other motive, but ‘that
the motive is one that the employer desires to conceal—an unlawful motive.. . .’” Id. (quoting
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (citation omitted); see
also David Saxe Productions, 364 NLRB No. 100, slip op. at 4 (2016); Boothwyn Fire Co. No. 1,
363 NLRB No. 191, slip op. at 7 (2016); Rood Trucking, 342 NLRB 895, 898 (2004); Golden 10
State Foods, 340 NLRB 382, 385 (2003); Hays Corp., 334 NLRB 48, 49 (2001); Frank Black
Mechanical Services, 271 NLRB 1302, 1302 fn. 2 (1984); Limestone Apparel Corp., 255 NLRB
722 (1981).
b. Hill’s discharge violated Section 8(a)(3) and (1) of the Act15
For the following reasons, I find that the General Counsel has met his initial burden of
establishing that Hill’s union and other concerted conduct were substantial or motivating factors
for Respondent’s decision to suspend her, and additionally find that the reason proffered by
Respondent for Hill’s discharge is pretextual and therefore Respondent cannot demonstrate that 20
it would have discharged Hill absent her protected conduct.
The General Counsel has established a prima facie case with respect to Hill. Her protected
conduct took two forms: first, on the day prior to her discharge, she sounded off to DeStefano
about the theater employees’ low morale and dissatisfaction with their wages; second, she—25
along with several other future discriminatees—engaged in substantial union organizing
activities, both at the theater and online. As Hill’s enthusiastic approach to organizing led her to
grant Mecca access to the employees’ online organizing group chat, Respondent was also on
notice that she was one of the group chat’s initial members.17 Circumstantial evidence further
supports a finding that Respondent were aware of Hill’s pro-union stance; indeed, Respondent’s 30
characterization of Hill as a “problem employee,” considering her high ranking by DeStefano
and praise from Sojack, suggests that this was a veiled reference to her union conduct. See Hertz
Corp., 184 NLRB 445, 446 (1970) (manager’s characterization of employee as “troublemaker”
could only have referred to her suspected union activities given that she was considered one of
the best employees), enfd. 449 F.2d 711, 714 (5th Cir. 1971); see also Smithfield Foods, Inc., 347 35
NLRB 1266, 1274 (2006) (supervisor’s statement that employee was a “problem person” was a
veiled reference to employee’s union activity); Diversified Bank Installations, Inc., 324 NLRB
457, 471–472 (1997) (president’s statement that employee caused “problems” or “trouble” was a
euphemism for union activity).
40
I also find that the General Counsel has proven that Respondent harbored animus toward
Hill’s protected activity. Her original discharge paperwork (before DeStefano added a reference
to “secondary employment”) simply stated, “Violation of Company policies, poor attitude.” As

17 As Mecca did not deny telling upper management about the group chat, I impute his
knowledge to Respondent. See State Plaza, Inc., 347 NLRB 755, 757 (2006); Dobbs
International Services, 335 NLRB 972, 973 (2001).
JD(SF)–25–19
23
the Board has recognized, references to an employee’s “attitude” may function as euphemism for
her union activity. See, e.g., Blue Star Services, 328 NLRB 638, 639 (1999) (term “bad attitude”
constitutes code for union activities); Schaumburg Hyundai, 318 NLRB 449, 458 (1995)
(owner’s statement that employee did “not work well with his team and had a bad attitude” was a
euphemism for union animus); Boyer Ford Trucks, Inc., 254 NLRB 1389, 1395 (1981) 5
(statements by owner and manager that employee was discharged for a “bad attitude” and being
a “disruptive influence” were euphemisms or code words for union activity). As the facts of this
case make clear, Hill—like the majority of dischargees—was explicitly referred to as having
problems with their “attitude,” leading me to believe that this term functioned as a reference for
holding a pro-union stance.10
An employer’s improper motivation may also be inferred from several factors, including the
timing between an employee’s protected activities and the discharge. Indeed, “timing alone may
suggest antiunion animus as a motivating factor in an employer’s action.” Cell Agricultural Mfg.
Co., 311 NLRB 1228, 1232 (1993); Trader Horn, supra; NLRB v. Rain-Ware, Inc., 732 F.2d 15
1349, 1354 (7th Cir. 1984); Sawyer of Napa, 300 NLRB 131, 150 (1990). Such is the case here.
That Hill, who was considered a good performer and conscientious worker, was summarily
discharged 1 day after complaining to DeStefano about employees’ morale and wages to is
“stunningly obvious” timing, NLRB v. Long Island Airport Limousine Service, 468 F.2d 292, 295
(2d Cir. 1972), providing substantial evidence of antiunion motivation. Trader Horn of New 20
Jersey, Inc., 316 NLRB 194, 198 (1995); Knoxville Distribution Co., 298 NLRB 688, 696
(1990).
Animus may also be inferred based on an employer providing pretextual and/or shifting
reasons given for a discharge. Here, Respondent’s scramble to prop up its decision to discharge 25
Hill with shifting and unsupported explanations strongly indicates an unlawful motive and is also
highly suggestive of pretext. Carrigan informed Hill that she was being terminated for
“restructuring” and failed to mention her alleged outside employment in her discharge PAF,
which DeStefano attempted to cure by doctoring the form before producing it to the government.
See Shamrock Foods, 366 NLRB No. 117, slip op. at 27–28, and cases cited there (employer’s 30
shifting, false, or exaggerated reasons for an adverse action are evidence of unlawful motive);
Inter-Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007) (finding that “an employer’s
shifting explanation for a discharge, or . . . its post hoc attempt to rationalize such a decision, are
suggestive of a pretext”). Then, at hearing, Respondent’s witnesses gratuitously piled on the
previously well-regarded (and highly ranked) Hill, labeling her as lazy and claiming that her 35
performance had suffered for some time before her discharge. See Con-Way Freight, Inc., 366
NLRB No. 183, slip op. at 3 (finding pretext based on unsupported claim in termination
documents that employee “did not work well with customers and others”); Harrison Steel
Castings Co., 262 NLRB 450, 479 (1982) (finding that employer’s defense “bore all the
trappings of pretext” where it involved “exaggeration, implausibility, and contradiction”), enfd. 40
in relevant part 728 F.2d 831 (7th Cir. 1984).
Having found that the General Counsel has proven that Hill’s concerted conduct and union
activity were motivating factors for her discharge, the burden shifts to Respondent to offer a
legitimate, nondiscriminatory explanation for its conduct. Moreover, given the General 45
Counsel’s strong showing of unlawful motivation, Respondent’s rebuttal burden is “substantial.”
A.S.V. Inc. a/k/a Terex, 366 NLRB No. 162, slip op. at 1 fn. 4 (2018); Vemco, Inc., 304 NLRB
JD(SF)–25–19
24
911, 912 (1991). Respondent missed the mark widely. As indicated earlier, I simply do not
credit DeStefano’s testimony that Hill declared herself unable to adhere to her work schedule.
Rather, I believe that DeStefano and Saxe fictionalized this account based on Hill’s request
(made the same day as her tirade about low pay and bad morale) to take a few days off. This
conclusion is supported by DeStefano and Carrigan’s belated effort to paper up their “outside 5
work” rationale and even to add “+ outside work” to Hill’s PAF before producing it to the
General Counsel. Taken together with Respondent’s outsized focus on Hill’s “attitude” problem,
the timing of the discharge decision, as well as the piling on of additional, unsupported reasons
for Hill’s discharge urges a finding that Respondent’s proffered defense is pretextual; it has thus
failed by definition to show that it would have suspended Hill absent her union and other 10
protected conduct.
Accordingly, I find that Respondent discharged Hill based on her union and other protected,
concerted conduct, in violation of Section 8(a)(3) and (1) of the Act.
15
B. Fallout from Hill’s Discharge and Estrada’s Threat to End the Union Campaign
Shortly following her discharge, Hill posted to the Facebook chat, “David [S]axe has
restructured my position effective immediately.” She encouraged the group to keep up the
organizing effort and deleted Stage Manager Mecca from the group (meaning that, from that 20
point on, he could not access any new posts). Hill’s discharge appears to have spurred the group
into high gear. Less than a minute after Hill removed Mecca, Graham posted, “perhaps we
should act sooner rather than later” and the employees began discussing the logistics of gathering
authorization cards. (Jt. Exh. 2 at 30–32.)
25
Approximately 10 days following Hill’s discharge, Estrada let at least one employee know
that he was onto the group’s activities. On March 10 or 11, stagehand Prieto ran across Estrada
as they both entered the Saxe Theater parking garage/smoking area; as they exited the stage
doors to the break area, Estrada bluntly stated that he was “going to put to an end to this union
shit.” This testimony by long-term, current employee Prieto was detailed and credible. He had a 30
good memory for dates and details, was cooperative on cross-examination and did not present as
prone to exaggeration; Estrada denied making the remark, but appeared extremely agitated
whenever questioned on the subject, leading me to believe it struck a nerve. (Tr. 821–824, 843,
845, 1569, 1943–1944, 3114, 3137.)
35
C. March 13–14: Saxe Solicits Employees to Work
the Same Night as the Second Organizing Meeting [Compl. ¶ 6(s)]
1. Factual background
40
The second, in-person organizing meeting was scheduled to take place on March 13 after the
evening’s show was over (at approximately 10:30 p.m.) at a local restaurant/bar about 10
minutes away from the theaters. Two days before the meeting, Prieto tried to get Kostew back in
the fold, texting her that there was going to be a “vote or ballot thing” about the Union on the
night in question. Kostew demurred, claiming that she was still worried about getting fired and 45
about her dispute with Hill. The following day, Prieto invited Sojack to attend the meeting;
JD(SF)–25–19
25
according to Prieto, Sojack indicated that he might go (he did not). (Tr. 1206, 1370, 1650–1651,
1938–1941, 2406–2407; GC Exh. 58.)
On the 13th, Saxe held a production meeting, which was attended by Saxe, DeStefano,
members of Respondent’s production team, as well as Stage Managers Sojack, Mecca, and 5
Estrada,18 which, as noted, was highly unusual. At this meeting, Saxe ordered that there would
be a “work call” at the Saxe Theater following that evening’s performance to perform repairs on
the Saxe Theater stage. (A “work call” is an announcement that workers are needed to perform a
specific project outside of a performance, such as cleaning, painting or repairs). Saxe himself is
usually not involved in planning work calls, but rather leaves this task to Estrada or DeStefano. 10
(Tr. 78–79, 102, 204–205, 226–227, 361–362, 494–495, 1207, 1371, 3214–3215.)
At 11:25 a.m., Kostew announced the work call via a group text message to eight theater
employees, stating, “Hey guys, [Estrada’s] in a production meeting and asked me to send out a
group text . . .” She then continued, “[T]o anyone who wants to get hours and stay tonight and 15
Bondo19 the stage, here’s your heads up. David Saxe wants us to do that tonight so feel free to
volunteer.” In addition to her initial group message, she called and texted individual employees
about the work call. That night, Estrada encouraged employees to stay after the show for the
work call, and Kostew even tried to talk S’uapaia, who was off duty and actually an audience
member that night, into remaining for the work call. (He declined and in fact ended up at the 20
union meeting). (GC Exh. 59; Tr. 1459–1462, 1521.)
Repairing the stage had been an ongoing project and the subject of at least 2 prior work calls,
the last one held a month earlier. As such, Respondent’s witnesses testified that the timing of the
March 13 work call was simply a continuation of that project and wholly unrelated to the fact 25
that the employees had planned to meet that night. Once again, Pendergraft was invoked, with
Saxe claiming that he had ignored a prior directive to get the repairs completed. Following
Pendergraft’s departure, Saxe testified, he received reports of dancers suffering injuries due to
the stage being uneven and rough. As was usually the case, DeStefano offered an alternate, more
dramatic version: during the February 13 production meeting, she testified, Dance Captain 30
Alejandro Domingo (Domingo) unexpectedly appeared to complain that the stage was still
uneven. (Tr. 2749–2750, 3242–3543.)
Although not alleged as such, Respondent’s scheduling the work call to overlap with the
already scheduled union meeting operated as a de facto poll of employees’ union sympathies by 35
“outing” union adherents, including future dischargees Graham, Michaels, Glick, S’uapaia,
Franco and Bohannon, who each opted for the meeting in lieu of working call. Indeed, events
suggest that management was acutely aware of which employees were refusing the call.
Notably, Graham visited the Saxe Theater shortly before the second in-person organizing

18 Sojack placed Estrada at the meeting, and I do not credit Estrada’s testimony that he did
not attend; based on his demeanor, I find that, as was often the case, he simply attempted to edit
himself out of significant events underlying this case.
19 “Bondo” is an automotive body filler and a brand name used by 3M for a line of American-
made products for automotive, marine and household repairs. See https://www.3m.com/
3M/en_US/bondo-us/. Respondent’s plan was apparently to use it to fill in cracks and gaps in
the stage’s surface. (Tr. 894.)
JD(SF)–25–19
26
meeting, in an effort to convince workers to attend. When he arrived, the last-minute work call
was underway, and two of those he tried to recruit were Estrada20 and Kostew. Declining,
Estrada cited the work call. Later, another employee, Michaels told Estrada he was leaving the
work call early because he had “something to do”; Estrada responded by giving him a surprised
look and saying “oh.” (Tr. 1207, 1286, 1300, 1521–1523, 1655–1656, 1947, 1979.)5

2. The March 13 work call did not violate Section 8(a)(3) of the Act
The General Counsel alleges that, by announcing (through Kostew) that a voluntary work
call would take place on the same night as the employees’ second in-person organizing meeting, 10
Respondent violated Section 8(a)(3) of the Act. I do not agree.
As the Board recently reminded, under Wright Line, a finding of discriminatory conduct
under Section 8(a)(3) requires a predicate determination that an employer took an adverse action,
that is, changed—for the worse—a “‘legally cognizable term or condition of employment…’” 15
See East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 3, fn. 3 (2018) (citing Bellagio,
LLC, 362 NLRB No. 175, slip op. at 2–3 (2015) and Northeast Iowa Telephone Co., 346 NLRB
465, 476 (2006)), enf. denied 854 F.3d 703, 709–710 (D.C. Cir. 2017)). Here, there is ample
evidence that Respondent, aware that a union meeting was to be held the night of March 13,
deliberately placed employees in a position of having to decide (openly) between attending or 20
responding to the work call. That said, there is no evidence that Respondent actually directed
any employee the task of repairing the stage. Thus, there is no predicate for a violation under
Section 8(a)(3). Compare Tufo Wholesale Dairy, Inc., 320 NLRB 896, 903 (1996) (finding
8(a)(1) violation where employer purposely scheduled a mandatory meeting to prevent
employees from attending a union meeting). I therefore recommend that paragraph 6(s) of the 25
complaint be dismissed.21
D. March 14: as Employees Attend the Second Meeting
Saxe Grants a Retroactive, Across-the-Board Wage Increase [Compl. ¶ 6(r)]
30
1. Factual background
Shortly after midnight on March 14, while most of the theater employees were either
repairing the Saxe Theater stage or attending the second organizing meeting, Saxe sent an email
to his head of payroll, Delois Fonder (Fonder). He listed 19 theater employees (as well as 14 35
employees from the theaters’ wardrobe department), accompanied by an old and new pay rate for
each, stating, “please pay the following people on THIS payroll (so their new rate went in last
week . . .” Later the same day (at 10:57 a.m., he emailed Fonder another list of employees with a
new rate for each; this time, he added names of warehouse and telemarketing employees.
Carrigan, as directed, implemented the wage increase retroactively, so that employees received, 40
in their next paycheck, an increase effective March 5. Based on her testimony, it appears that

20 I again credit Graham, finding Estrada’s denial again awkward and forced.
21 I note that the work call was not alleged to constitute an independent violation of Sec.
8(a)(1) as either an unlawful poll or a favorable conduct reasonably calculated to impinge upon
employees’ freedom of choice for or against unionization.
JD(SF)–25–19
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she was so rushed that Respondent actually incurred a monetary penalty in to order to implement
Saxe’s second request. (Tr. 211–212, 758, 761; GC Exh. 15,16, 97.)
On either the 14th or the 15th, Hardin and DeStefano assembled the Saxe theater stagehands
(as well as wardrobe employees) for a meeting before that evening’s show and announced that 5
the employees would each receive a $2 per hour wage increase. Notably, Estrada testified that
he had been given no notice, prior to the night of the announcement, that a wage increase was in
the works. As he testified, “it was crazy” and “happened all at once…” (Tr. 831–832, 833,
1828–1829, 1834.)
10
At hearing, Saxe struggled to explain the timing of the pay raise, and his testimony on this
subject was markedly evasive. Eventually, he settled on a familiar account: Pendergraft was to
blame, as he had been paying his employee-friends (whom Saxe identified as Hill, Devito, and a
day-crew lead named Jordan Rodrigo) at a higher rate than others. According to Saxe, he had
“conversations” with Pendergraft about this issue in January “and probably before” and 15
instructed him to “fix” the situation by standardizing employees’ wages. As he later admitted,
however, Pendergraft had in fact submitted a proposal (in December 2017) that would have
standardized wages by compressing the range of hourly rates for theater department employees,
but Saxe did not act on it at that time. (Tr. 206–208, 3471, 3494–3497, 3619–3620; R. Exh. 76.)
Ultimately, Saxe failed to explain why it took nearly a month after Pendergraft’s departure to 20
implement the pay raise, how an across-the-board $2 increase acted to “standardize” employees’
wages or why it was necessary to grant a raise to warehouse and box office employees, over
whom Pendergraft, during his tenure, had no authority.
Carrigan’s testimony further muddied Respondent’s storyline; she testified that she, along 25
with former Vice President of Operations Karlo Pizarro (Pizarro), had been charged since
October or November 2017 with conducting a review of Respondent’s pay standards in various
departments, with an eye towards standardizing them. Despite this, there is no indication that
Saxe consulted with either her or Pizarro before implementing his wage increase. Further
complicating things, it appears that, approximately a week prior to the wage increase, Saxe was 30
also considering switching the theater employees’ pay from an hourly to a “per-show” rate. (Tr.
755–756; GC Exh. 13, 98.) Thus, it appears that, prior to March 2019, Saxe may have been
vaguely considering different ways of reformulating Respondent’s pay structure and had settled
on none of them.
35
2. Saxe’s retroactive wage increase violated Section 8(a)(3) of the Act
By its post-hearing brief, the General Counsel argues that, by granting employees a wage
increase on the night of the second, in-person organizing meeting, Respondent unlawfully
granted a benefit to interfere with employees’ protected activity, a violation of Section 8(a)(3) of 40
the Act. I agree.
It is well established that an employer may dissuade employees’ protected conduct by means
more subtle than taking action directly against their immediate interests. As the Supreme Court
has explained, “well-timed increases in benefits” serve to remind employees of their employer’s 45
economic leverage over them and may therefore be violative of the Act. See NLRB v. Exchange
Parts, 375 U.S. 405, 460 (1964). Where such conduct is asserted to have violated Section
JD(SF)–25–19
28
8(a)(3), the Board employs its Wright Line analysis. See, e.g., Hogan Transports, Inc., 363
NLRB No. 196, slip op. at 4 fn. 9 (2016); Donaldson Bros. Ready Mix, 341 NLRB 958, 961–
962 (2004). Thus, it must be determined whether the record evidence as a whole, including any
proffered legitimate reason for the wage increase, supports an inference that the offer was
motivated by an unlawful purpose to coerce or interfere with such conduct. See, e.g., Royal 5
Manor Convalescent Hospital, 322 NLRB 354, 361 (1996), enfd. mem. 141 F.3d 1178 (9th Cir.
1998). Where an employer grants benefits during an organizing campaign without showing a
legitimate business reason, the Board will infer such a motive. Vista Del Sol Healthcare, supra;
ManorCare Health Service-Easton, 356 NLRB 202, 222 (2010), enfd. 661 F.3d 1139 (D.C. Cir.
2011).10
Such an inference is wholly appropriate here. First, there is ample evidence that, when Saxe
decided to increase employees’ wages, Respondent was aware that theater employees were
organizing in support of the Union. A few examples of such knowledge:
15
- Stage Manager Mecca gained access to the employees’ Facebook organizing
group chat on February 21, in which employees openly expressed pro-union
sentiments, planned their organizing strategy, planned in-person meetings and
“voted” in a poll to unionize Respondent’s theaters;
20
- In late February, Estrada observed and reported to upper management that
Graham was circulating union cards, causing Saxe to conclude “they’re
unionizing”;
- Shortly afterwards, Estrada attempted to derail Graham’s card solicitation efforts 25
by warning Langstaff to stay away from him after the latter had agreed to sign a
card;
- In late February, pro-union employees approached Mecca and Sojack and
attempted to pitch them on the benefits of unionization;30
- Throughout February, Respondent rolled out unprecedented “open door”
meetings in which employees were reminded about workplace rules and
management encouraged “teamwork” and a “positive work environment”; and
35
- Two to three days before the wage increase was announced, Estrada was
overheard threatening to “put an end to this union shit.”
In the face of this evidence, I find the blanket denials of knowledge by Saxe and DeStefano to
lack credence and conclude that Respondent granted employees a retroactive, across-the-board 40
pay increase while aware of an actual organizing campaign by the theater employees.
Second, the evidence strongly supports an inference that the organizing campaign was in fact
what motivated Respondent’s decision to increase wages. As was the case with Hill’s discharge,
I rely on the relatively “astonishing timing” of Saxe’s decision to raise employees’ wages. See 45
Fiber Products, 314 NLRB 1169, 1186 (1994). Two weeks earlier, Hill had reported to
DeStefano that morale was low and, specifically, that employees were unhappy with their wages.
JD(SF)–25–19
29
While Saxe had previously tinkered with the idea of reformulating Respondent’s pay structure,
the idea of a retroactive, across-the-board $2 per-hour increase came out of the blue on the very
night that a sizable group of employees opted out of Respondent’s last-minute work call in order
to attend the second, in-person organizing meeting, a meeting to which Estrada had been
explicitly invited. As such, the record suggests that, having determined that the organizing 5
campaign had survived Hill’s discharge, Saxe trotted out a “carrot” to remind the employees of
his economic power over them.
Respondent claims that the wage increase had been in the works for months—as part of an
effort to “standardize” wages—but this position does not withstand scrutiny. Indeed, Saxe had 10
failed to act on Pendergraft’s December 2017 proposal to do just that, and according to Carrigan,
had commissioned her to study the issue. Then, rather than consult with her on her progress,
Saxe instead rushed through a retroactive, across-the-board $2 per-hour increase that, by
definition, failed to standardize anything.22 Thus, Respondent failed to offer a credible
explanation for the unexpected, unprecedented and, in Estrada’s estimation, “crazy” decision to 15
increase employees’ wages. See Hogan Transports, Inc., 363 NLRB No. 196, slip op. at 4 fn.
9 (2016) (timing of increase permitted an inference of unlawful motive, and employer failed
to establish that the decision to grant wage increases had been made in the absence of union’s
presence); Donaldson Bros. Ready Mix, 341 NLRB 958, 961–962 (2004) (unscheduled pay
raise during union organizing campaign violated Sec. 8(a)(3) when employer failed to offer a 20
credible explanation for the timing of pay raise).
Based on the foregoing, I find that the March wage increase, made retroactive to March 5,
violated Section 8(a)(3) of the Act as alleged in complaint paragraph 6(r).
25
E. Mid-March: Mecca Questions Stagehand Darnell Glen
About the Second Organizing Meeting and Estrada
tells stagehands that he has lined up replacements for them
1. Mecca’s questioning of Glen30
A few days after the second union organizing meeting, Stage Manager Mecca approached
Glen working backstage at the V3 Theater and asked him whether he “knew anything about this
union meeting.” Glen replied that, yes, he had attended the recent meeting, and was wondering
if Mecca was interested in attending one. Mecca responded that he wanted no part of the Union, 35
because he had had a bad experience with it in the past. Mecca denied this conversation or ever
discussing the Union with Glen. (Tr. 1892–1893, 3175–3176.)
Mecca’s remarks are alleged by the General Counsel as an unlawful interrogation about
employees’ union activities in violation of Section 8(a)(1).23 I agree. In Rossmore House, the 40
Board eschewed a per se approach and held that “an employer’s questioning of open and active
union members about their union sentiments, in the absence of threats or promises [did not]

22 Respondent alternately claims that the wage increase was motivated by economic
necessity, but the record contains no evidence that this was the case.
23 On October 3, 2018, counsel for the General Counsel successfully moved to amend the
complaint to add this allegation. (See Tr. 1931–1932.)
JD(SF)–25–19
30
necessarily” interfere with, restrain, or coerce employees in violation of Section 8(a)(1) of the
Act. Instead, the Board stated, each case would be determined on its facts. Factors to be
considered included the background, the nature of the information sought, the identity of the
questioner and the place and method of the interrogation. 269 NLRB 1176, 1177–1178 (1984),
enfd. 760 F.2d 1006 (9th Cir. 1985).5
As a preliminary matter, I credit Glen’s account of the conversation over that of Mecca.24 I
further find that Mecca’s question went to the heart of Glen’s involvement in a core protected
activity (attending a union meeting). That said, as the General Counsel concedes, several factors
(including Mecca’s relatively low-level of supervisory authority, the everyday workplace setting 10
and Glen’s unhalting—and honest—reply) argue against a finding of coercion. Moreover, the
record indicates that, at the time Mecca questioned him, Glen was an open union supporter.25
Were Mecca’s questioning limited to Glen’s own union activities, this circumstances may well
dictate a finding of no coercion, but this is not the case.
15
Instead of merely asking if Glen had attended the meeting, Mecca probed whether he knew
“anything” about the meeting, implicitly calling on Glen to disclose what had occurred at that
meeting, which would in turn reveal other employees’ attendance and participation. This latter
aspect of Mecca’s inquiry—seeking information about the union activities of other employees—
rendered his questioning coercive and unlawful. Thus, even assuming that Glen was an open 20
union supporter at the time of their discussion, Board law does not countenance Mecca’s attempt
to elicit from Glen information regarding the union activities of his coworkers; I therefore find
that, under all the circumstances, Mecca’s question would reasonably tend to restrain, coerce or
interfere with statutory rights, and therefore constituted an unlawful interrogation in violation of
Section 8(a)(1) of the Act. See Valley Special Needs Program, Inc., 314 NLRB 903, 912 (1994) 25
(asking open union supporter about union activities of other employees coercive) (citations
omitted); see also Prineville Stud Co., 227 NLRB 1845, 1848 (1977) (unlawful for manager to
ask employee if he “knew anything about a union meeting,” even where employee responded
honestly). I therefore find that Mecca’s questioning of Glen constituted an unlawful
interrogation as alleged.30
2. Estrada’s remarks to stagehands [Compl. ¶ 5(d)]
The General Counsel also asserts that, at some point in March, Estrada violated Section
8(a)(1) of the Act by telling an assembled group of stagehands that he was “tired of hearing their 35
complaints” and had “15 people lined up ready to take your jobs.” (Tr. 1525–1526, 1560.) By
Estrada’s first comment, it is alleged, Respondent promulgated and maintained an overly broad
directive or rule not to engage in protected concerted activities. His second remark, it is alleged,
constituted an unlawful threat.
40

24 Glen was a cooperative witness, who presented with the same low-key demeanor both on
direct and cross-examination. While Mecca was generally also a cooperative, matter-of-fact
witness, he appeared visibly uncomfortable when discussing this conversation.
25 As discussed, supra, Glen was overheard by Sojack talking with other employees about
their collective organizing effort; it is not clear, however, whether this occurred prior to Mecca’s
questioning.
JD(SF)–25–19
31
Only one employee—Michaels—testified in support of these allegations, which were denied
by Estrada. I found Estrada’s denial as to having made such comments somewhat coached;
however, even crediting Michaels, I do not find merit to these allegations. As Michaels himself
explained, Estrada’s remarks were made in direct response to complaints made by certain
stagehands that other stagehands were lazy and slacking off at work; there was no showing, 5
however, that any these complaints were concerted in nature. See Quicken Loans, Inc., 367
NLRB No. 112, slip op. at 3 (2019) (concerted activity does not include griping or activities of a
purely personal nature that do not envision group action) (quoting Mushroom Transportation Co.
v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)). Given the context, I believe that a reasonable
employee would take Estrada’s remarks as a benign directive to stop in-fighting between 10
employees, as opposed to a directive not to engage in protected conduct, or a threat of discharge
for doing so, and therefore find the evidence is insufficient to sustain a violation. See Alliance
Rubber Co., 286 NLRB 645, 657 (1987) (no violation where foreman’s comments were susceptible
of two interpretations, only one of which involving protected conduct, particularly in view of the
context in which the statement was made). I will therefore recommend that paragraph 5(d) of the 15
complaint be dismissed.
THE MARCH/APRIL MASS DISCHARGE ALLEGATIONS
20
While not coercive, Estrada’s comment about replacing employees was certainly prescient.
By the evening of March 19, Respondent had discharged union adherents Glick, Bohannon,
Graham, Gasca, Langstaff, Franco, and S’uapaia, and additionally determined to discharge an
additional employee, Michaels (who would be actually terminated weeks later, after a
replacement had been trained for his position). As DeStefano reported to Saxe that night, “[a]ll 7 25
have been completed.” (GC Exh. 12.) At the heart of this case is the series of events and
circumstances that led to these actions, which are alleged to violate Sections 8(a)(3) and (1) of
the Act.
There was no historical precedent for a mass discharge in Respondent’s ongoing theater 30
operation.26 Although Carrigan is usually charged with reviewing employee discipline
(including discharge) for fairness and consistency among the work force, her role in the
discharge decisions at issue was limited to processing paperwork and informing several of the
individual dischargees that they were being fired. (Tr. 130–131, 677, 740, 742–744, 2830–2833,
2835–2836, 2929–2930.)35
A. The Mass Discharge Decision
The plan to discharge a group of employees appears to have been formulated between March
14 and 15; as DeStefano testified, she discussed the idea with both Estrada and Saxe at that time. 40
(Tr. 472.) At 4:24 p.m. on March 15, DeStefano texted Saxe as follows:
I don’t wanna bug you anymore tonight

26 It does appear that, at some unspecified time, Respondent discharged a group of employees
in connection with closing down an entire department. (Tr. 748–749.)
JD(SF)–25–19
32
I’m almost home and I’ll get started on emails if you need anything
else please let me know
Minutes later, she added:
5
And I hope deciding not to bother you earlier didn’t cost me your
trust in me. I thought it meant nothing. I promise I have no clue or
involvement.
I love this company and my job and I respect to more than you 10
know and I adore you as a boss. And I hope you can still trust me.
(GC Exh. 3.) Given the events of the prior 2 weeks, DeStefano’s denial of any “clue or
involvement” (which went without any other credible explanation) suggest the very motive for
which the actions on which she was about to “get started.”27 15
DeStefano then proceeded to send Saxe a series of emails, each of which concerned an
employee who would be discharged. Between 11:26 p.m. and 1:21 a.m., she sent emails about
Glick, S’uapaia, Bohannon, Langstaff, Michaels, and Gasca. Notably, the most common theme
in these emails was DeStefano’s concern with various employees’ “attitude” and the concern that 20
it might “spread.” Glick, for example, was “badmouthing the Company and people above
her…” and was “a bit of a cancer around here with her attitude and mouth,” which DeStefano
worried would “spread[] to other employees.” She voiced nearly identical concerns about
Langstaff (“I am concerned with . . . his attitude spreading”); Michaels (“[h]is attitude has been
the problem . . . I have a feeling that this is ‘just the job’ to him and the attitude bleeds into the 25
others down there”); and Gasca (“he has once [sic] of the worst attitudes of anyone I ever
worked with. Constantly complaining about his pay and his hours and all the times he has
‘busted his ass’ for this company with no appreciation . . . I cannot have that kind of behavior
and attitude spreading and making other employees uncomfortable.” In one of her emails,
DeStefano appeared, in coded language, to disclose what had suddenly motivated Respondent to 30
clean house: “[i]n trying to fix moral[e], I can’t have people being rude toward management and
doing what they want.” (GC Exhs. 4–9.)
Saxe, throughout his testimony, conspicuously attempted to distance himself from the mass
discharge decision, initially claiming that he had no idea what moved DeStefano to email him 35
complaints about six employees on the same night. He then testified that he simply approved a
list presented to him by DeStefano of “people she wanted to fire and why.” Finally, he took a
more proactive tack; casting himself as the conscientious executive, he claimed that he in fact
had discussed the discharge decisions with DeStefano (and perhaps Estrada as well) and
instructed DeStefano to document the reasons why she wanted to discharge certain employees. 40
As he explained, he was concerned with having a “good reason” for each discharge—“[y]ou
have to have write-ups or things in writing.” That said, it does not appear that he actually read

27 Abandoning his typically insouciant manner, Saxe insisted that he understood DeStefano to
refer to Pendergraft’s transgressions, as opposed to the union organizing campaign; based on his
demeanor, I discredit this testimony.
JD(SF)–25–19
33
DeStefano’s emails prior to the employees being discharged. (Tr. 89–93, 107–109, 119–120,
130–131, 136–137, 183–184, 261–268, 278–279, 2578.)
Integral to Respondent’s defense is DeStefano’s oft-repeated claim that Pendergraft’s
departure marked the first time she was ever granted the authority to discipline employees, or 5
even to document their performance problems. Quite frankly, DeStefano oversold this storyline.
Appearing at times to draw on her skills as a thespian, she recounted the horrors of working
under Pendergraft, testifying that “it was a fight every day,” that Pendergraft screamed at her
“every time” she tried to do “anything” and—most relevant to Respondent’s case—that she was
effectively forbidden from documenting any issues she had with employees’ performance. (Tr. 10
424, 2567, 2576; see also Tr. 2813 “It was [Pendergraft] who never let me do anything. I was a
little puppy dog.”)
Moreover, Respondent’s own business records undercut her claims. For example, effective
December 27, 2017, DeStefano issued a written warning to Bohannon over Pendergraft’s express 15
objection. Moreover, while DeStefano claimed that she was forced to “sneak around” to address
employee issues (“I didn’t want to get yelled at any more than I already was”), she also
appears, at least by late January, to have engineered a “work around” whereby she was
taking orders directly from Saxe and human resources without involving him and was also
actively working to undermine him, suggesting to Carrigan that there was no need for both 20
she and he to run the theater operation. (GC Exh. 32.) Based on this, it appears that, while
DeStefano and Pendergraft had a somewhat dysfunctional professional relationship, I do not
credit her claims that she was forbidden from creating the documentation that would typically
proceed any of the discharges at issue in this proceeding. Rather, I find that Pendergraft’s
supposed “gag order” on DeStefano was a mere contrivance designed to excuse the near 25
complete lack of contemporaneous documentation of the dischargees’ alleged misdeeds.
B. Individual Dischargees’ Background Facts
As discussed in more detail, infra, Respondent claims that the decision to discharge seven 30
employees in March and April was unrelated to their union organizing and instead grew out of a
plan to “restructure” Respondent’s theater operation. As Respondent’s witnesses explained,
however, employees were selected for deselection in this process based on their merits.
Accordingly, what follows is a discussion of each dischargees’ work history, as well as a
summary of the events surrounding and/or relied on by Respondent for each discharge action.35
1. Jasmine Glick
Jasmine Glick had a relatively long history with Respondent. She worked for a year starting
in 2015, and then resigned for family reasons. After being rehired in April 2017, she was 40
subsequently discharged in June 18, 2017, for excessive no-call/no-shows. Then, in September
2017, she was rehired once again. Her last position was lighting board operator and spotlight
operator in both the Saxe Theater and V3 Theater. As noted, Glick was heavily involved in the
organizing effort from its inception, was selected early on to act as the Union’s “liason” to the
lighting techs and engaged in workplace recruiting of numerous employees to join the effort. 45
She made her support for the Union explicitly known to Stage Manager Mecca during the last
JD(SF)–25–19
34
week of February when she invited him to join the campaign. (Tr. 1025–1027, 1118, 1362,
1363, 1365, 1368–1369, 1421,1518, 3175; Jt. Exh. 2 at 15–17.)
DeStefano’s first emailed discharge recommendation on March 15 pertained to Glick.
Blaming Pendergraft for failing to discipline Glick in the past, she reported that she was “lazy” 5
and “a problem” and “constantly” on her cell phone. As noted, supra, however, the bulk of her
recommendation, however, focused on Glick’s poor attitude, her “bad mouthing the company
and people above her” and expressed the concern about “her attitude spreading to other
employees. . .” (GC Exh. 4.) After returning home from work on March 17, Glick received a
call from DeStefano, who told her that Respondent was “going to be going in a different 10
direction with things, doing some restructuring” and hiring through a third party. According to
Glick, she also mentioned that someone had been reviewing camera footage and that old policies
had not been enforced. Confused, Glick said, “wait, so you’re telling me I’m fired right now?”
to which DeStefano replied, “yes, I’m sorry.” During her testimony, Glick was adamant that
DeStephano made no specific mention of her performance, tardiness, or cell phone usage.28 15
During next 2 days, she sent DeStefano three text messages asking why she had been fired, but
she received no response. (Tr. 343, 1362, 1371–1372, 1383, 1424, 2699; GC Exh. 63.)
At hearing, Saxe and DeStefano were unsuccessful in settling on a single, coherent
explanation as to why they discharged Glick. According to Saxe, there were no problems with 20
Glick’s performance in terms of how she ran the lights during shows. DeStefano appeared to
agree, at least as of February 6, when she ranked the lighting department employees in order of
“reliability, attitudes, etc.”—she ranked Glick third of five employees (ahead of two employees
who were not discharged in March). At hearing, however, DeStefano changed course, claiming
that Glick did have “performance issues,” had missed cues “plenty of times” and had even 25
generated complaints from cast members, including a complaint that her missing cues was a
safety concern. This safety complaint was not corroborated by any witness or documentary
evidence. The record is similarly muddled as to the decisional process that led to Glick’s
discharge. According to Saxe, DeStefano reported that Glick had attendance problems, and was
“just hanging out” at the theater when not on the clock. DeStefano, by contrast, claimed that, 30
approximately a week before Glick’s discharge, she told Saxe something quite different: that
Glick was late to performances, “extremely disrespectful” and “on her phone constantly.”29
Notably, Estrada, who directly supervised Glick, testified that he had no knowledge as to why
she was discharged and that he had never discussed her performance with DeStefano or Saxe.
(GC Exh. 83; Jt. Exh. 1; Tr. 104–107, 341, 416–420, 824, 827, 2152–2154, 2693.)35
Littered throughout Saxe and DeStefano’s attempts to explain discharging Glick were
references to her poor attitude. Indeed, despite taking no issue with Glick’s technical
performance, Saxe nonetheless claimed to have long considered her a “terrible employee” who

28 I found Glick to be credible. She appeared to listen carefully to questions, had a good
recall of specifics and presented as a matter-of-fact, noncombative witness on cross-examination.
Her boyfriend is current employee Darnell Glen, further lending to her credibility.
29 Glick admitted to using her cell phone while at work and even during shows, as did
numerous other employees. This problem was apparently so wide-spread that, on several
occasions, management sent reminders to the theater workers about it. (Tr. 1453; R. Exhs. 8–
11.)
JD(SF)–25–19
35
was “insubordinate” and “immature” and who should not have been rehired after her first (June
2017) discharge. He further claimed that he only learned of her subsequent rehire in January
2018, at which point he and Pendergraft agreed that she would be discharged again, but this
never occurred. I find Saxe’s claims in this regard thoroughly implausible. Essentially, he
would have me conclude, despite the dozens of cameras throughout the theaters and his habit of 5
monitoring them on a regular basis, he failed to notice Glick was still in his employ, despite the
fact he was admittedly familiar with her appearance.30 DeStefano also took particular issue with
Glick’s “attitude,” describing her as “probably one of the rudest people I ever met in my
life.” This histrionic spin simply did not square with Glick in person, who came across as
an intelligent and inquisitive person who was cooperative both on direct and cross-10
examination. (Tr. 105, 108–109, 340–342, 416–417, 420–421.)
Two days after Glick was discharged, Carrigan approved a PAF documenting the decision
which referred to her “long history of insubordination and attitude” but made no mention of her
supposed tardiness or safety complaints. As with several other discharged employees, 15
Respondent engaged in an after-the-fact effort to “boost” the rationale for Glick’s discharge. On
April 10, DeStefano drafted a typewritten statement accusing Glick of having arrived late to
work on “numerous occasions . . . causing the cast and crew to panic,” a claim uncorroborated by
any other witness. (According to Glick, she had in fact come to work late four times during the
last month of her employment. Each time, however, she texted DeStefano and let her know). 20
DeStefano then listed four times Glick had arrived late in the final month of her employment.
The statement also amplified her claims regarding Glick’s cell phone usage, noting that, by using
her cell phone, she “could” have missed cues and upset performers. The same day, DeStefano
sent Carrigan an email in which she further attempted to “pad” the record regarding Glick’s
tardiness by detailing instances of her reporting late starting in January 2018. (GC Exh. 34 at 2; 25
Tr. 81, 82, 1432–1433.)
2. Taylor Bohannon
Bohannon, an audio technician, was hired on November 1, 2017; along with several others to 30
be discharged in March and April, she was among the group of workers Devito first invited to
join his online organizing chat group. She “voted” in an online poll to unionize the theaters and
devised the group’s strategy of selecting a single “liason” employee from each department to
recruit more people to join the campaign. She later attended both in-person organizing meetings,
electing to skip the March 13 work call. (GC Exh. 6; Jt. Exh. 2 at 1–4, 7–9; Tr. 1204–1205, 35
1206–1207.)
Bohannon had received some minor discipline prior to her discharge. Around December 27,
2017, she received a written warning31 for exceeding her scheduled breaktime and had also been

30 Saxe testified that, in 2017, he observed (on his video monitor) Glick and Glen at the
theater engaged in intimacy while Glen was working. There is no evidence that Glick was
disciplined for this, but it certainly demonstrates that Saxe could easily recognize her on his
video feeds. (Tr. 168–170.)
31 While Bohannan denied receiving any “written discipline” during her tenure with
Respondent, I do not believe she understood this to include written warnings, and therefore do
not believe she was intentionally deceptive on this point. (Tr. 1212.)
JD(SF)–25–19
36
verbally warned not to use her cell phone during a show, and not to hang out backstage during a
work call. Overall, however, Bohannon was considered a competent, if inexperienced, audio
tech. Indeed, DeStefano described her on March 1 as a “great audio tech,” and 3 days later,
stated, “show wise she is great.” On March 17, DeStefano called Bohannon at 11:14 p.m. and
left a voice mail. When Bohannon called her back the following day, DeStefano said she was 5
sorry, but her position was going to be “terminated due to restructuring” based on how she had
run a show. (Tr. 330–331, 1200, 1208–1209, 1214, 1238–1239, 2609–2610, 3170–3171; GC
Exhs. 13, 19; R. Exh. 36.)
According to Saxe, he had received a call in late February or early March from Gerry 10
McCambridge (McCambridge), the star of a show at the V Theater, who complained about
Bohannon “ruining his show” by continuously messing up audio cues, and that the problem was
so bad that he had been forced to run the audio for the show himself from a PowerPoint on his
laptop. Respondent introduced an undated, handwritten note from Saxe to Carrigan purporting
to be the notes of his telephone conversation with McCambridge. Following the telephone call, 15
Saxe set about conducting “an investigation,” which appears to have involved him speaking with
two other performers with whom Bohannon had worked.32 Neither of these individuals testified.
DeStefano attempted to corroborate Saxe’s claims, testifying that she was “shocked” to learn of
the complaints, herself spoke with all three performers and “confirmed that it was true.” (Tr.
110–111, 331, 3474, 3476–3477; R. Exh. 82.) I found this testimony particularly histrionic 20
(even for DeStefano) and do not credit it.
McCambridge—who was called as a witness for Respondent—did not corroborate either
Saxe’s testimony or his handwritten notes. He did admit to having a short conversation with
Saxe about Bohannon, whom he accused of being unqualified, but credibly denied that he had 25
complained that his show had been ruined or that he had been forced to run his cue track by
himself. His only complaint about Bohannon, he testified, was that she was inexperienced and
would therefore need to consult with another tech if a problem arose. As he explained,
Respondent provided him with techs of varying skill levels, and if he lacked confidence in a tech,
he would run the cues himself by operating a remote mouse from the stage. Bohannon, he was 30
clear, was not such an employee, and he had no recollection of having to run the cues himself
when she was his assigned tech. (Tr. 3144–3145, 3153–3157, 3159.) I found McCambridge’s
testimony highly credible, in particular because he is currently engaged as a performer at one of
Respondent’s theaters; I have, however, subjected his testimony (as well as that of Bohannon
herself) to stricter scrutiny based on an exchange between the two after I issued the sequestration 35
order in this proceeding.
On the first day of hearing, while attending the Fremont event, Bohannon electronically
forwarded McCambridge the document Saxe claims to be his notes from the performer’s
telephonic complaint about her (she had requested a copy of it from Nevada state unemployment 40
agency). She then proceeded to question him about whether he had, in fact, told Saxe that she
had “ruined” his show or that he had been forced to take over her cues. In response,
McCambridge essentially previewed for her the testimony he would later give on the subject

32 Saxe was vague as to whether he contacted these two performers as part of his
“investigation” or whether they contacted him in the days following his conversation with
McCambridge. I find the former scenario far more plausible. (Tr. 112, 3474–3476.)
JD(SF)–25–19
37
(i.e., his complaints about other techs and concern that she was not experienced). (See R. Exhs.
81, 82; Tr. 3146–3147.)
I am troubled by Bohannon’s conduct. By contacting McCambridge, she gained prior
knowledge, before testifying herself, of what he would potentially say under oath about his 5
complaint to Saxe. Under the circumstances, I agree with Respondent that the potential for
prejudice to its case was real, but I do not find the violation so extreme as to render Bohannon’s
testimony incredible as a matter of law. Rather, I have applied strict scrutiny to testimony
adduced by the General Counsel regarding the McCambridge complaint, including testimony
given by McCambridge himself on cross-examination. See U.S. v. Fike, 538 F.2d 750, 757 (7th 10
Cir. 1976), cert. denied 429 U.S. 1064 (1977) (where witnesses discussed certain aspects of their
testimony prior to trial, such conduct is a proper subject for impeachment on cross-examination).
3. Alansi Langstaff
15
Langstaff worked as a Saxe Theater stagehand for approximately 1 year until his discharge
on March 18. Langstaff did not participate in the Facebook chat, nor is there any evidence that
he attended any of the in-person organizing meetings. However, as discussed supra, in late
February, Langstaff was observed by Estrada agreeing to sign a union authorization card, after
which he was immediately warned by Estrada to not be seen consorting with Graham, who had 20
offered him that card. He was also among the employees DeStefano, by her March 15–16 email
blitz, recommended be discharged in part, due to their “attitude” problems. (Tr. 1825–1827,
1887; GC Exh. 2; R. Exh. 43.)
Approximately a month before his discharge, Langstaff did have a confrontational exchange 25
with DeStefano, in which he complained that Kostew being assigned cue calling duties
constituted favoritism, given her relationship with Estrada. According to Langstaff, DeStefano
said the decision had been hers, and the conversation ended with DeStefano suggesting that she
would look into getting Langstaff more hours. DeStefano’s version of the conversation was
markedly different; Langstaff, she claimed, had “cornered her,” gotten “in her face” and yelled at 30
her. I credit Langstaff’s version.33 DeStefano was prone to embellishment and exaggeration
throughout her testimony regarding Langstaff,34 and appeared intent on presenting a dramatized
account of this exchange in particular (i.e., “when somebody that tall and that big is in your face,
it’s overwhelming”). While Langstaff is somewhat physically imposing (at nearly 6’5” and 290

33 Respondent claims that Langstaff violated my sequestration order by discussing with
fellow dischargee Graham (at the Fremont event) testimony that Saxe had given in a prior Board
proceeding. I disagree; by its terms, my order applies only to testimony given by witnesses in
the instant proceeding. Nor do I discredit him, as Respondent urges, based on his testimony
regarding a conversation between his girlfriend and DeStefano on a matter unrelated to his
discharge. There was no true discrepancy between his recollection and DeStefano’s account of
the conversation in question; rather, it appears that he may have missed hearing part of the
conversation. (Tr. 1834–1835; 2672, 2801–2802.)
34 For example, she insisted, without any personal knowledge, that Langstaff had “thrown” a
prop at Barerra; on another occasion, she claimed to have counseled Langstaff about a particular
work-related issue “a thousand times” before reigning this in to a more plausible, “multiple times
per week.” (Tr. 375–376, 407, 2666–2667.)
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38
pounds), I found his overall demeanor extremely low key and pointedly nonconfrontational.
(Tr. 375–378, 381–382, 1830–1832, 1851, 1856, 3288.)

The only other instance of Langstaff being accused of aggressive behavior at work took place
in August 2017, when he got into a work-related dispute with another stagehand, Ivan Barrera 5
(Barrera). Essentially, Barrera complained that Langstaff had transferred a rolling prop to him
too forcefully, hurting his hands. Langstaff countered that he had performed properly and
accused Barrera of attempting to micromanage him. The two argued verbally before
management broke them up, but no physical contact was involved. (Tr. 1852–1854, 1860–1865,
3289–3290, 3293, 3314–3315.)10
Shortly after midnight on March 16, DeStefano sent Saxe her email recommendation that
Langstaff be among those discharged. She began by stating that there had been problems with
Langstaff “for a while now,” including his “timeliness, work ethic, attitude and work
performance.” She mentioned that stagehands had complained about Langstaff directly to her, 15
referenced his past falling out with Barrera and claimed that he was often late to report to work.
She then said (without reference to his supposedly aggressive tone), “[h]e even pulled me aside
complaining of favoritism from the stage manager. . . .” DeStefano concluded her email:
I personally want the most eager people on these shows and the 20
ones that are the best we have and I can rely on. I am concerned
with [Langstaff] and his attitude spreading as well as the fact that
he doesn’t seem to care about what we do here or our audiences.
(GC Exh. 2.) Two days later, Langstaff received a call from Carrigan, who told him that he was 25
being discharged as part of a “revamp” whereby they were “restructuring the stagehands and
bringing in an outside source.” Approximately an hour later, Langstaff spoke with DeStefano,
who echoed this explanation. Carrigan approved Langstaff’s PAF the day the next day, in which
DeStefano noted that he had “a very poor attitude.” (Tr. 733, 1836–1837; GC Exh. 34 at 5.)
30
At hearing, Respondent’s witnesses offered competing rationales for Langstaff’s discharge.
According to Carrigan, Saxe told her Langstaff was being discharged for being repeatedly tardy
to work. Langstaff, however, denied having a chronic tardiness problem, and there is no credible
evidence that he had ever been disciplined for being late (or anything else) prior to his
discharge.35 In fact, he appears to have been historically granted flexibility in his reporting time35
in order to accommodate his family obligations. DeStefano alternately claimed that, a few
months before Langtaff’s discharge, Barerra had again accused him of bullying conduct, and that
Pendergraft had prevented her from discharging him at that time. Barrera testified, but notably
did not corroborate this claim. DeStefano further offered that she had consulted with Estrada
about Langstaff, who confirmed that Langstaff was “abusive to everybody, verbally, just 40
yelling, screaming, tossing things.” Like Barrera, Estrada failed to corroborate

35 I do not believe that DeStefano issued Langstaff a January 26 discipline for showing up
late at work. Presented with this document (as R. Exh. 26), he appeared sincerely never to have
seen it before and appeared to closely examine it during a break in the record. (Tr. 1878; R. Exh.
45.)
JD(SF)–25–19
39
DeStefano’s account. (Tr. 370–372, 407–408, 462, 729–730, 797–799, 1838–1839, 1876–
1877, 2659, 3306; R. Exh. 85.)
Although Langstaff’s PAF contained no reference to his August 2017 altercation with
Barrera, approximately a month following his discharge, DeStefano and Carrigan attempted to 5
remedy this, enlisting Kostew was enlisted to provide an “eyewitness account” of the incident, in
which she claimed that the two men had argued outside the theater “for a good 2 hours,” and
Langstaff had “forcibly thrown” a prop at Barerra. Each of these claims were contradicted by
multiple witnesses, including Langstaff and Barerra themselves. DeStefano (who testified that
she “could not recall” why Kostew had sent her this email) immediately forwarded it to Carrigan 10
and Saxe. (GC Exhs. 26, 76; Tr. 411, 2078–2080.)
4. Nathanial Franco
Franco was hired as an audio tech in December 2017. Significantly, he was a personal friend 15
of Devito, a fact Saxe himself admitted he “may” have known. As one of the original invitees to
Devito’s Facebook group chat, Franco was involved in the early stages of the organizing effort
and “voted” in support of the Union in an online poll. He also attended the second in-person
organizing meeting on March 13, the night of Saxe’s last-minute work call. (Tr. 117, 1281,
1283, 1287–1288, 1307; Jt. Exh. 2 at 9.)20
Franco was hired despite the fact that he had no prior experience as an audio tech. He was
initially mentored by Devito and trained on several shows, which involved him “shadowing” the
show’s assigned audio tech. After Devito’s departure, however, Franco began struggling at his
position. As he testified, as soon he began to learn the cues for a particular show, he would be 25
transferred to a different one. Around the winter holidays, Franco’s training period ended and he
was assigned to run his own shows, including “Vegas! The Show” in the Saxe Theater and a
different show in the V2 Theater. Franco readily admitted that he made mistakes during these
productions,36 and it is undisputed that DeStefano coached him about hitting his cues on time.
There is no evidence, however, that Franco was ever disciplined for these mishaps. (Tr. 1283–30
1284, 1292–1293, 1307–1310, 1356–1357.)
On March 9, Franco repeatedly played the wrong music during a performance of “Vegas!
The Show,” which he admitted was disruptive to the performance and noticeable to the audience.
This mistake, according to DeStefano, generated emailed complaints from both the dance captain 35
and Company Manager Hardin (who was responsible for producing “Vegas! The Show”) that
lead directly to Franco’s discharge. Asked specifically whether she had received the emails in
question prior to discharging Franco, DeStefano responded unequivocally, “yes.” These emails
were not introduced, nor was DeStefano’s claim corroborated by Hardin (who testified) or
the dance captain (who did not). Saxe and DeStefano’s text messages reveal that they decided 40
to discharge Franco shortly before 8:30 p.m. on March 14, and had even selected a discharge
date—Monday the 19. They apparently disagreed over how to characterize the discharge;
DeStefano suggested to Saxe that the action would be “just an elimination of position,” which

36 It is precisely because Franco was so willing to admit to his performance problems that I found him
an extremely credible witness.
JD(SF)–25–19
40
Saxe nixed, twice reminding her that Franco was being discharged “because he screwed up the
show.” (Tr. 87, 114, 344–346, 461, 1292–1293, 1308–1309, 3410–3411; GC Exh. 10.)
Two hours later, DeStefano, in the midst of her blitz of emails seeking Saxe’s “advice” about
the dischargees, sent him one about Franco. Referencing the March 9 performance, she 5
concluded, “I am concerned with his work performance overall. I have tried every option in this
theater to use his talents, so I would like to know where to go from here.” The following day,
March 15, Saxe responded, noting that he, too, had received complaints about Franco “from
multiple show producers and performers”; he then instructed DeStefano, “[p]lease terminate his
employment as soon as you have a suitable replacement.” Later that evening, DeStefano replied, 10
forwarding another complaint about Franco and adding:
[a]s of Monday 3/19/2018 I have coverage for this and if we would
let him go so our shows do not suffer anymore.
15
Please let me know your thoughts on this.
(GC Exh. 29.) Neither Saxe nor DeStefano offered any explanation as to why, on March 15,
they went through the effort of “recreating” via email the decision to discharge Franco they had
reached the day prior. (Tr. 343, 1288–1290, 2658; Jt. Exh. 2 at 32–34.) 20
Two months following Franco’s discharge, DeStefano scrambled together documentation of
Franco’s conduct, emailing Hardin and the dance captain who had supposedly complained about
him. In an urgent tone, she stated:
25
Per the text messages I sent you last night, I need those statements
on Nathan Franco ASAP please. [Carrigan] and [Saxe] need them
right away.
If you can please send them over we would really appreciate it.30
(GC Exh. 20.) Within the next half hour, Hardin and the dance captain each provided a brief
email appraisal of Franco’s performance. Neither one referred to having made a prior complaint
about Franco, and the dance captain’s email took a decidedly formal tone, including him
introducing himself to DeStefano by name and title. Most notably, each of the emails echoed 35
generic complaints about Franco (missed cues, playing the wrong music, etc.), but neither
specifically referred to the March 9 performance issues that Respondent claims led to his
discharge. Id.
5. Michael Gasca40
Gasca was discharged on March 19. He had originally begun working as a part-time
stagehand for Respondent in August 2016. Until his discharge, the only discipline Gasca
received was a verbal warning for absenteeism in September 2017. Gasca was among the group
that DeStefano recommended for discharge on the evening of March 15, but, unlike the other 45
dischargees, he was not involved in the union organizing campaign that is the main focus of this
proceeding. (R. Exhs. 53, 54, 83; Tr. 1172–1174.)
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41
Gasca had, however, previously made his pro-union stance known to management. In
October 2017, he told Estrada that he had been offered an opportunity to pursue an
apprenticeship with another union, Teamsters Local 631, with the lengthy application process set
to begin the following January. Estrada instructed him to submit a written request for 5
Pendergraft to review; Gasca complied, providing a letter that mentioned that he had a history of
working union jobs through Local 631. Shortly before January, Gasca asked Pendergraft about
the status of his request. Demurring, Pendergraft said he was busy; Gasca testified that his tone
and demeanor suggested that he was displeased. Ultimately, however, Pendergraft agreed to
make Gasca an “on call” employee, which allowed him to pursue the apprenticeship and 10
continue to work for Respondent at the same time. (Tr. 1143–1152.)
As an on-call employee, Gasca was called in to work shows and consistently did so.
Between January and February, he successfully completed the Local 631’s application process
and was accepted into its apprenticeship program. At some point in February, DeStefano called 15
Gasca and asked if he would be willing to go back to part-time status and he declined, stating
that the on-call status was working well for him. Shortly thereafter, Gasca informed Sojack,
Estrada, and Mecca that he would be starting the Local 631 program on March 9. He then told
DeStefano that, because the apprenticeship was unpaid, he wanted to work extra hours at the
theater if possible. DeStefano said she would get back to him; she did so later that night, but 20
Gasca was already asleep and missed the call. When he approached her the following day, she
demanded to know why he had not returned her call the night before and said she had been
calling to discharge him. Gasca asked why, to which she stated that he was a bad worker, had a
bad attitude and no backstage experience. She then said that he was not the only one being fired,
and there were about 11 others. Gasca asked if he could say goodbye to his coworkers; 25
DeStefano refused his request and showed him the door. As had Glick, Gasca later attempted to
get written documentation of the reason he had been let go, but DeStefano never responded to his
request. (Tr. 1152, 1155–1161, 1169–1170, 1178, 1191.)
I credit Gasca’s version of these events. I found him to be an earnest witness, who worked 30
hard to answer questions, including asking for clarification of complex, longer queries. He
presented with a consistent demeanor on both direct and cross-examination. I also reject
Respondent’s suggestion that I should discredit his testimony because he denied actively
participated in the September 1st Freemont Bar conversation with Bohannon alleged to have
violated the sequestration order. Gasca did freely disclose what he recalled of the discussion, 35
and his testimony on the topic leads me to believe that, in the bustle of the bar scene, he honestly
considered himself a witness, but not a participant, in this discussion and in any event did not
understand the discussion to violate my order. (Tr. 1174–1178.)
Respondent’s witnesses appeared to cast around for reasons why Gasca was discharged. As 40
Counsel for the General Counsel’s first 611(c) witness, Saxe claimed that he had received reports
that Gasca was not dependable and not “available,” but the only lack of availability on Gasca’s
part was his approved on-call status. DeStefano later attempted to portray Gasca as a troubled
employee who frequently messed up shows, and whose performance had seriously fallen off
once he became an on-call employee; this was contradicted by Mecca, who critiqued Gasca as45
JD(SF)–25–19
42
“spacey,” but consistently so.37 As with the majority of the dischargees, Gasca’s alleged
performance problems were never documented, and, until the day of his discharge, he had never
received any performance-based discipline. Once again, Estrada had apparently been left in the
dark; he testified that he had no idea why Gasca was discharged. At hearing, DeStefano offered a
final, “Hail Mary” rationale for Gasca’s discharge: she had determined to eliminate “on call” 5
positions. Her testimony on this point was muddled beyond the point of being credible (“I mean
the position was eliminated, but I didn’t want that as the reason because that wasn’t the
reason I was going to fire him”). (Tr. 132, 433, 826, 3182.)
On the whole, the evidence suggests that, rather than a sudden decline in his performance, 10
Gasca—whose union apprenticeship overlapped with the theater employees’ organizing
campaign—had developed an “attitude” problem. In recommending to Saxe that he be
discharged, De Stefano reported that Gasca “has one of the worst attitudes of anyone I have ever
worked with . . .” She further warned, “I cannot have that kind of behavior and attitude
spreading and making other employees uncomfortable.” At hearing, DeStefano in fact admitted 15
that what she meant by this was that she did not want other employees to start “complaining”
like Gasca. Mecca likewise admitted that, while Gasca’s performance remained relatively
consistent, at a certain point before his discharge, it was his “attitude” that changed. Even
Gasca’s discharge paperwork focused on this rationale for discharge, stating, “[w]henever he was
in the building his attitude was awful and he was always complaining about hours/pay.” (Tr. 20
425–428, 442, 3169, 3195; GC Exhs. 9 & 34 at 6.)
6. Chris S’uapaia
S’uapaia, who had worked as a stagehand since October 2017, was discharged on March 19. 25
He had become involved in the organizing campaign in late February. As noted, above, he
overtly rejected Kostew’s personal invitation that he participate in the March 13 work call and
attend the union meeting instead. Two days later, DeStefano included S’uapaia in the group of
employees recommended for discharge, reporting in her late-night email to Saxe that she did not
think he was “a good fit” for the theater operation. There is no evidence that, prior to his 30
discharge, S’uapaia had received any discipline. (Tr. 1456–1457; GC Exh. 5; R. Exh. 52.)
At hearing, Respondent’s witnesses contradicted each other as to how and why S’uapaia was
discharged. DeStefano claimed that she and Saxe made the decision to discharge after
consulting with Carrigan, and that “[h]e was discharged for his attendance and his timeliness 35
and his neglect to the schedule.” Carrigan, however, denied being involved in the decision.
DeStefano also claimed that, 2 weeks before the discharge, Estrada had reported that he
had failed to report to work, stating that he “just didn’t feel like coming in” and “he had
other things to do.” DeStefano further testified that she had consulted with Estrada, who had
confirmed that they were “on the same page” regarding the problems with S’uapaia’s schedule 40
adherence. Estrada flatly contradicted this; indeed it appears that he had a history of tolerating
S’uapaia’s absences, once even holding his job open for a week while the latter was incarcerated

37 Contrary to the claims of Respondent’s witnesses, Gasca credibly denied that he ever
“threatened to walk out” during shows. These rather incredible accusations were supported by
no written evidence. (Tr. 1179.)
JD(SF)–25–19
43
(something he apparently informed DeStefano of).38 Saxe likewise failed to corroborate
DeStefano’s testimony regarding S’uapaia. Rather than being part of the decision making, he
claimed to have merely been “informed” of the decision to discharge S’uapaia. According to
Saxe, DeStefano reported to him that S’uapaia was unreliable, had a bad attitude and had missed
shows because he was incarcerated. (Tr. 87, 128–131, 351–352, 355, 801–804, 2104, 2704–5
2705, 2783–2784.)
On March 19, DeStefano discharged S’uapaia in person, telling him that Stage Manager
Sojack had complained about him, specifically because he was unable to move backwards due to
a leg injury. It is true that, ever since he began working for Respondent, S’uapaia had been 10
physically limited in his ability to walk backwards at speed while carrying something. It is
likewise true that, until March 19, Respondent had consistently accommodated this limitation
(either by reassigning him or allowing him to get assistance from coworkers), and he was
therefore able to perform his duties without issue.39 Significantly, although Sojack testified, he
did not corroborate DeStefano’s claim that he had complained about accommodating S’uapaia, 15
testifying instead that he had merely raised the issue of accommodating him. (Tr. 1463–1468,
1492–1493, 3211–3212.)
7. Zack Graham40
20
Graham worked as a stagehand from August 2014 until his discharge on March 21. During
the last 3 months of his employment, Graham also called cues. By all accounts, Graham was
considered a talented, dependable worker who knew multiple tracks. Estrada, who referred to
Graham as his “right hand man,” clearly considered him a talented stagehand; as he explained,
Graham was able to perform two tracks at the same time, which is “very rare.” At least as of 25
February 6, DeStefano apparently agreed with Estrada’s assessment; she ranked Graham fifth of
21 stage hands in her “reliability, attitudes, etc.” rankings. There is no evidence that, prior to his
discharge, Graham had ever been disciplined. On February 21, Graham broke his arm in an
accident unrelated to his work for Respondent; he alerted Estrada that day and said he was going
to be off work while recovering. On February 24, DeStefano texted him, “[s]o sorry to hear 30
you’re hurt” and requested that he email her a scanned copy of his “doctor’s note.” Two days
later, Graham complied, emailing her a “Work Release Form” indicating that he could return to
work but only with restrictions, including no heavy lifting. Graham received no response or
followup from DeStefano about his leave, either by text or telephone. (Tr. 397, 653, 847, 1647,
1648, 1654, 1663, 1664, 1706, 1728–1729, 3098–3099; GC Exhs. 23, 34, 66, 84; R. Exhs. 18, 35
41.)

38 Estrada became visibly uncomfortable when questioned about his role in S’uapaia’s
discharge and, denied having any idea why this decision was made.
39 I found S’uapaia to be a credible witness. He presented as somewhat nervous, but had a
very detailed recollection of events, and in particular of this conversation. I do not credit
DeStefano’s testimony that she, in fact, informed him that he was being discharged for
repeatedly being unavailable for work. As noted, infra, this “reason” was not corroborated by
any management witness and, appears to have been crafted after the fact.
40 As set forth, supra, I have rejected Respondent’s claims that Graham’s discussion with
Langstaff at the Fremont event violated my sequestration order.
JD(SF)–25–19
44
Despite his medical leave, Graham remained active in seeking to convince his coworkers to
join the organizing campaign; he appeared at the Saxe Theater on at least a weekly basis to visit
with his coworkers, discuss the Union, and publicize upcoming organizing meetings. As I have
found, Estrada, DeStefano, and Saxe became aware in late February that Graham was circulating
union authorization cards, and, during the same month, Estrada expressly warned another 5
employee—Langstaff—to steer clear of him. As discussed, on March 1, Graham also solicited
Estrada directly (if unsuccessfully) to join the union cause, unperturbed by the latter’s negative
reaction. Later that same day, he discussed his need for medical leave with DeStefano, who
assured him that his job was safe and would be waiting for him. (Tr. 1517–1518, 1651–1653,
1718, 1825–1827, 1872.)10
During the next 3 weeks, Graham continued on his leave, and heard nothing from DeStefano.
On March 21, however, she texted him with a tone of urgency, asking “[c]an you get on your
Paycom??” (referring to Respondent’s online payroll system). A few hours later, she texted him,
“I’ve been trying to reach you for weeks unsuccessfully through calls and texts”; Graham 15
responded, via text, that he had logged into Paycom and had received no calls or texts from her.
Approximately 15 minutes later, DeStefano sent Saxe an email recounting her purported
attempts to contact Graham. Making no mention of the “Work Release Form” Graham had
submitted on February 26, she stated that she had decided to discharge him on March 1, but had
been unable to reach him to inform him of the fact. She specifically noted that, as of March 1, 20
she had made “multiple attempts to contact him” about his medical documentation, as had
human resources, Estrada and other stagehands.41 DeStefano closed her email with a request that
Saxe advise her how to proceed. Saxe and DeStefano then spoke (apparently by phone) and, as
Saxe testified, concluded that Graham’s conduct constituted job abandonment. Saxe instructed
DeStefano to discharge him. (GC. Exh. 11; Tr. 85–86, 134, 188–189, 253, 2065, 3478–3479.)25
Approximately 1 hour and 20 minutes after her email to Saxe, DeStefano responded to
Graham’s last text as follows:
On February 22nd, 2018 you informed me that you broke your arm 30
and would not be able to work. I asked you to provide a doctors
[sic] note but you never did and you did not respond to any of my
repeated calls or text, until now, a month later! Anyways, you
were termed a while ago for job abandonment and failure to
comply with the company policies & procedures.35
(Tr. 1664, 1710, 1727; GC Exh. 66.) Two days later, DeStefano completed a PAF indicating
that Graham had been discharged on March 1 (the day he unsuccessfully solicited Estrada to join
the union and DeStefano assured him that his job was safe). Notably, Estrada—Graham’s
supervisor—was not involved in the discharge decision or even given advance warning that it 40
was going to happen. Testifying that he disagreed with the decision, he said he was shocked to

41 I do not credit DeStefano’s uncorroborated testimony that she, in fact, attempted numerous
times to contact Graham; it does appear that, during this period, Estrada and Kostew did attempt
to contact Graham “a couple of times” and left messages (i.e., asking “what’s going on?” and
“how’s your arm?”), but there is no evidence that they put Graham on notice that he needed to
provide further medical documentation to preserve his position. (Tr. 1653–1654, 3120.)
JD(SF)–25–19
45
learn that Respondent had discharged his top performing stagehand. (Tr. 397, 807–808; GC Exh.
34 at 8.)
8. Kevin Michaels
5
Michaels was discharged on April 2, after a relatively long (2-1/2 year) tenure as a
stagehand. DeStefano had recommended him for discharge shortly after midnight on March 15,
as part of her barrage of emails to Saxe, but, because Michaels performed a particularly
challenging track, it took time to train somebody to replace him. Prior to his discharge, Michaels
had never received discipline and was a well-regarded employee; the record contains numerous 10
instances of him taking the initiative in improving the quality of theater productions. In her
February 6 rankings of the stagehands, Michaels was ranked seventh out of 21. (Tr. 358–360,
466–467, 514–1515, 1528–1529, 1570–1571, 2616, 2774–2775; GC Exh. 84; R. Exh. 38.)
Michaels became involved in the organizing campaign during the week of March 12, when 15
Graham sent him a text about the March 13 union meeting. Michaels did not have a Facebook
account, so was not involved in the group chats, but Glick kept him abreast of the online
organizing effort. Michaels also spoke with Graham about the Union during the latter’s visits to
the theaters during his medical leave and, in turn, relayed Graham’s updates to coworkers.
Along with Glick, he was instrumental in planning the date and venue for the March 13 meeting 20
and informed a number of employees about the meeting once it was scheduled. As discussed, he
conspicuously departed early from the last-minute work call on the 13th (to Estrada’s apparent
consternation) in order to attend that meeting. (Tr. 397, 1647, 1516–1522, 1549.)
Three days later, when DeStefano emailed Saxe her discharge recommendations, Michaels 25
was the second one she sent. While acknowledging that he was a hard worker, she noted, “[h]is
attitude has been the problem as well as following my schedule.” Without elaborating, she then
mentioned that Michaels had “disregarded” a work call and that Estrada had complained that he
had a bad attitude and only being willing to perform his assigned track. Mentioning Michaels’
“attitude” a total of four times, she concluded, “[i]n trying to fix moral [sic], I can’t have people 30
being rude toward management and doing what they want.” In fact, it appears that management
had long permitted Michaels wide latitude as to when he clocked in and out, in relation to his
official scheduled hours. Indeed, he readily admitted to diverging from his assigned hours on
multiple occasions and frequently clocking in early to set up the stage for the show. This
practice appears to have been implicitly condoned by Estrada, and there is no credible evidence4235
that, prior to Michaels’ discharge, it ever resulted in him receiving any discipline or counseling.
(Tr. 1567, 1580–1582; GC Exh. 8.)
Having secured Saxe’s approval of the discharge, DeStefano called Carrigan and arranged
for her to deliver the news. As Carrigan testified, DeStefano told her that Michaels was to be 40

42 I do not credit DeStefano’s claims that she spoke with Michaels multiple times in January
about his schedule adherence. This testimony appeared rehearsed and vague. Instead, I credit
Michaels, who testified that the only time he ever spoke with her about schedules was when he
complained that her scheduling was inefficient, because it did not permit him to get required
work calls completed. (Tr. 1567.) He presented as a low-key, genuine witness not prone to
exaggeration, listened carefully to questions, and was cooperative on cross-examination.
JD(SF)–25–19
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discharged for not showing up for work, only being willing to perform his assigned track and
refusing to do anything else, and, as she put it, “not really being a team player.” On April 2,
Michaels received a voice mail message from Carrigan that he was to call her in human
resources before he next reported to work. The next day, he reached Carrigan, who informed
him that he had been discharged for insubordination, bad work attitude and poor work 5
performance; she also documented these reasons in his PAF. (Tr. 735, 1527–1528, 2161; GC
Exh. 34 at 9.)
Respondent’s witnesses struggled to present a consistent or credible story that explained
Michaels’ discharge. DeStefano claimed that both Estrada and Saxe were involved in the 10
decision. Estrada, she testified, agreed with her that Michael’s schedule adherence was a
problem and that he should be discharged. Estrada, who had supervised Michaels for 2 years,
initially testified that he only learned of his discharge on the day it occurred; as with other
discriminatees, he appeared eager to distance himself from the decision, stating that he had no
idea what had happened. Saxe likewise initially denied being involved in the decision to 15
discharge Michaels, stating that DeStefano simply informed him of the decision. Later, each of
them half-heartedly reversed course, claiming that they had, in fact been involved in the
decision, with Estrada offering that, “probably” a couple of months earlier, he had complained to
DeStefano about Michaels. Saxe, for his part, claimed that DeStefano had reported that
Michaels was “lazy” and shown up late for work, something no other witnesses had mentioned. 20
(Tr. 86–87, 136–137, 358–359, 788–794, 3120–3121.)
C. Alleged Sequestration Order Violations Regarding the Discharge Decisions
Saxe served throughout the hearing as Respondent’s Fed. R. Evid. 615(c) designated 25
representative and, as such, was explicitly exempted from the sequestration order. However,
during the week of October 15, he provided certain transcripts from this proceeding to
DeStefano, delegating to her the task, assigned to him by his in-house attorney, of reviewing
these transcripts.43 Saxe initially testified that the stack of transcripts was an inch high, but then
(after DeStefano testified that it was about 6 inches) revised his testimony, claiming that it was 30
approximately 3 inches. (Tr. 2527–2530, 2533, 3071–3072.)
DeStefano testified that the transcripts Saxe assigned her to review contained the testimony
of Prieto, Petty and Gasca, as well as her own testimony. Specifically, she recalled reviewing
one of these employees’ testimony regarding Respondent’s posting of election-related notices, as 35
well as Gasca’s testimony regarding his request for a leave of absence. According to DeStefano,
she spent “maybe a couple of hours” reviewing the transcripts. After reviewing the transcripts,
she was called by Respondent to testify in its case.44 During this testimony, DeStefano appears
to have made no substantive reference to the subject of Respondent’s notice postings, nor to any
subject of Prieto’s testimony. She made only a passing reference to Petty (claiming that his 40
show-call schedule around the time she changed Tupy and Glenn’s hours). Gasca, however, was
a different matter; over the objection of counsel for the General Counsel, Respondent’s counsel
examined DeStefano extensively regarding the circumstances of, and Respondent’s various

43 There is no evidence indicating that any counsel representing Respondent intentionally
caused DeStefano to review any witness transcript.
44 See Tr. 2540–2827.
JD(SF)–25–19
47
rationales for, discharging him. (Tr. 2540–2827, 2535–2536, 2550–2552, 2577–2578, 2709–
2723, 3072, 3080, 3087.)
There is no avoiding the conclusion that Saxe and DeStefano’s overtly partisan conduct
constituted a violation of the sequestration order, which clearly forbade providing a witness such 5
as DeStefano with transcripts during the course of the hearing. Moreover, her review of Gasca’s
transcript certainly taints her subsequent testimony on the subject of his discharge. It is less
clear, however, what remedy the General Counsel seeks for this conduct, in that no motion to
strike was filed with respect to any particular testimony.45 Under the circumstances, I find it
appropriate to apply stricter scrutiny to DeStefano’s testimony given following her transcript 10
review on the subject of Gasca’s employment and Respondent’s proffered rationales for
discharging him.
D. Legal Analysis of Theater Department Mass Discharge Allegations
15
1. The legal standard
Where, as here, an employer is shown to have engaged in a mass discharge for the purpose
discouraging employees from engaging in union activity, or retaliating against them for such
activity, the General Counsel need not establish each individual employee’s union activity and 20
knowledge, or that all union adherents were laid off. Delchamps, Inc., 330 NLRB 1310, 1317
(2000); Weldun International, 321 NLRB 733, 734 (1996), enfd. mem. in part 165 F.3d 28 (6th
Cir. 1998). As one court of appeals has explained, “[t]he rationale underlying this theory is that
general retaliation by an employer against the workforce can discourage the exercise of section 7
rights just as effectively as adverse action taken against only known union supporters.” Birch 25
Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985). Thus, instead of
showing a specific correlation between each dischargee’s union activity and his discharge,
instead, the General Counsel’s burden is to establish that the mass discharge was implemented to
discourage union activity or in retaliation for the protected activity of some of the employees.
Hudson Moving & Storage Co., 322 NLRB 1028, 1033 (1997); We Can, Inc., 315 NLRB 170 30
(1994); Davis Supermarkets, 306 NLRB 426 (1992); ACTIV Industries, 277 NLRB 356, 356 fn.
3 (1985); Pyro Mining Co., 230 NLRB 782 fn. 2 (1977).
2. The General Counsel established a prima facie case of discriminatory mass discharge
35
The credible evidence overwhelmingly establishes that Respondent discharged eight
employees shortly after learning that a union organizing campaign was underway at the theaters,
in retaliation for the protected conduct of at least some—if not all—of them. The Board has
consistently held, in a mass discharge case, such timing itself raises a strong inference of both
knowledge and animus. See, e.g., Gunderson Rail Services, LLC, 364 NLRB No. 30, slip op. at 40
30 (2016) (citing Best Plumbing Supply, 310 NLRB 143, 144 (1993)).

45 The General Counsel’s post-hearing brief instead appears to argue that, based on
Respondent’s failure to produce video evidence to the contrary, I should make an adverse
inference that DeStefano in fact reviewed additional transcripts. I find such an inference
unjustified, considering that there is no definitive proof that such video evidence would have
actually disclosed which documents she reviewed.
JD(SF)–25–19
48
Here, there is ample evidence that Respondent learned of specific evidence of employee
organizing shortly before Saxe and DeStefano determined to discharge a group of union
adherents. Half of the dischargees (Glick, Bohannon, Graham and Franco) were members of
Devito’s online organizing group chat, to which Mecca had access.46 Management learned mere 5
weeks before the discharges that Graham was soliciting cards for the Union, and both Graham
and Prieto discussed union meetings with managers. After Graham invited Estrada to the March
13 organizing meeting, it could not have gone unnoticed that Graham, Glick, S’uapaia, Franco,
and Bohannon skipped the work call scheduled for the same night, and Estrada appeared visibly
upset that Michaels left the work call early. Under these circumstances, the “dramatic timing” of 10
the mass discharge “hard on the heels” of Respondent’s learning of the organizing campaign,
“strongly supports an inference of animus and discriminatory motivation.” Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009); see also American Wire Products, Inc., 313
NLRB 989, 994 (1994) (citing Mini Togs, Inc., 304 NLRB 644, 648 (1991); Vemco, Inc., 304
NLRB 911, 912 (1991)).15
I also find that the General Counsel has proven that Respondent harbored animus toward the
dischargees’ organizing activity. The most striking evidence of this fact is mathematical: of
those discharged, 100 percent were union adherents. The Board, supported by the courts, has
long held that, absent a reasonable explanation, the disproportion between the number of union 20
adherents versus other employees may constitute persuasive evidence of discrimination. Meyers
Transport, 338 NLRB 958, 972 (2003); Huck Store Fixture Co., 334 NLRB 119 (2001); Glenn’s
Trucking, 332 NLRB 880 (2000); American Wise Products, 313 NLRB 989, 994 (1994); Camco,
Inc., 140 NLRB 361, 365, enfd. in part 349 F.2d 803, 810 (5th Cir. 1965); see also Power, Inc. v.
NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994); Ballou Brick Co. v. NLRB, 798 F.2d 339, 343 (8th Cir. 25
1986), NLRB v. Nabors, 196 F.2d 272, 375–376 (5th Cir. 1982); Hedison Mfg. Co., 249 NLRB
791, 804 (1980); NLRB v. Chicago Steel Foundary, 142 F.2d 306, 308 (7th Cir. 1944).
Here, Respondent would have me find that the 100 percent union adherent composition of
the discharged group is simply coincidental. As the Board has noted in rejecting a similar claim, 30
“[w]hile it may be theoretically possible that the Respondent may have fortuitously selected for
termination only those employees active in the Union, common sense and the laws of
mathematical probability indicate that such fortuity was highly improbable.” Camco, Inc., 140
NLRB at 365. I find a similar conclusion is appropriate here and specifically find Respondent’s
selection of a homogeneously pro-union discharge group to be “very persuasive evidence of 35
discrimination.” NLRB v. Chicago Steel Foundary, 142 F.2d at 308.
I also note that the record is rife with evidence of animus against the employees’ organizing
activity, including 8(a)(1) violations by Estrada, Mecca, and Saxe himself. Dynasteel Corp., 346
NLRB 86, 88 (2005) (“Respondent’s numerous 8(a)(1) violations provide evidence of its anti-40
union animus”). Moreover, while unalleged, other conduct strongly suggests an anti-union
motive. This includes Estrada’s vow to “put an end to this union shit”—made only 5 days before

46 Mecca did not deny reporting to upper management his knowledge of the employees’
online discussion; therefore, I find that his knowledge of the Facebook group chat is properly
imputed to Respondent. See State Plaza, Inc., 347 NLRB 755, 757 (2006); Dobbs International
Services, 335 NLRB 972, 973 (2001).
JD(SF)–25–19
49
the mass discharge decision. Stoody Co., 312 NLRB 1175, 1182 (1993) (animus can be based on
unalleged conduct, and on conduct that does not necessarily violate of the Act); Gencorp, 294
NLRB 717 fn. 1 (1989) (conduct not found to be a violation may still be used to show animus).
Finally, Respondent’s unlawful motivation is further evidenced by its outsized concern over the
individual dischargees’ poor “attitudes” and potential contagion of the wider workforce—a 5
classic euphemism for union organizing activity. See Blue Star Services, 328 NLRB 638, 639
(1999); Schaumburg Hyundai, 318 NLRB 449, 458 (1995); Boyer Ford Trucks, Inc., 254 NLRB
1389, 1395 (1981). This is especially so with respect to especially high performing employees,
such as Graham and Michaels. See Hertz Corp., 184 NLRB 445, 446 (1970) (manager’s
characterization of employee as “troublemaker” could only have referred to her suspected union 10
activities given that she was considered one of the best employees), enfd. 449 F.2d 711, 714 (5th
Cir. 1971).
Finally, the strong inference that Respondent acted out anti-union motivation is further
validated by the abrupt and slap-dash manner in which the discharges were carried out. 15
Respondent offered no plausible explanation for DeStefano’s rush to provide Saxe with a series
of late-night emails seeking his “advice” on how to deal with an apparent rash of employee
shortcomings and misdeeds, or for leaving both Carrigan (of human resources) and Estrada (who
supervised several of the discharges) out of the decisionmaking process. In addition, the record
reveals that DeStefano, Saxe, and Carrigan engaged in deliberate, 11th-hour (and, at times, after-20
the-fact) efforts to “paper up” individual discharge decisions with ex post facto documentation.
These post-discharge attempts to “document” employees’ alleged poor performance (such as
those attributed to Glick, Langstaff and Franco) are additional evidence that Respondent’s
proffered reasons for discharging the employees are pretext fabricated to disguise an unlawful
motive. 25
Moreover, further evidence of animus is found in the conspicuous lack of a convincing
rationale for the discharge actions. Prior to being discharged, Langstaff, Franco, S’uapaia,
Graham, and Michaels had never been disciplined. Graham and Michaels were highly ranked in
terms of “performance and attitude” by DeStefano in early February. Gasca and Bohannon had 30
received only minor discipline, and Bohannon was considered “great” at her job. While Glick
had been previously discharged for absenteeism, she was subsequently rehired. Against this
backdrop, many of the proffered explanations for the discharges were revealed at trial to be
transparent fabrications. These include Bohannon’s supposedly “ruining” a show (a claim
denied by the performer, McCambridge) and Langstaff’s violent conduct (uncorroborated by his 35
alleged “victim,” Barrera). In other cases, Respondent’s claimed that the discharge decision was
motivated by conduct that it had long condoned. This was the case with both Graham (who was
on an approved medical leave of absence) and Michaels (who had historically been granted
leeway as to when he reported for work).
40
Respondent’s witnesses also struggled throughout the hearing to agree on a consistent
rationale for selecting individual employees for their “restructuring,” including Glick (missed
cues vs. attendance vs. cell phone use); Langstaff (attendance/timeliness vs. laziness vs. bullying
conduct vs. physical violence); Gasca (lack of backstage experience vs. lack of availability vs.
elimination of on-call positions); and S’uapais (physical limitations vs. attendance/timeliness 45
issues vs. laziness).
JD(SF)–25–19
50
Board law teaches that when an employer shifts defenses for a discharge, it is reasonable and
justifiable to conclude that none of its rationales is the real reason but that the termination was in
fact the result of an unlawful motive. See Approved Electric Corp., 356 NLRB 238 (2010)
(“[t]he Board commonly recognizes such shifting rationales as evidence that an employer’s
proffered reasons for discharging an employee are pretextual”); City Stationery, Inc., 340 NLRB 5
523, 524 (2003); Jacee Electric. Co., 335 NLRB 568 (2001) (“the Respondent’s varying
rationales for its conduct lead to the inference that the real reason for the layoff is not among
those asserted by the Respondent”), enfd. 56 Fed.Appx. 102 (3d Cir. 2003); GATX Logistics,
Inc., 323 NLRB 328, 335 (1997) (“[w]here . . . an employer provides inconsistent or shifting
reasons for its actions, a reasonable inference can be drawn that the reasons proffered are mere 10
pretexts designed to mask an unlawful motive”).
Based on the foregoing, I find the General Counsel has established that Respondent’s
antiunion animus was a motivating factor in the decision to discharge employees Glick,
Bohannon, Graham, Gasca, Langstaff, Franco, S’uapaia, and Michaels.4715
3. Respondent’s “restructuring” defense fails
Based on the above, the burden shifts to the Respondent to prove it would have discharged
Glick, Bohannon, Graham, Gasca, Langstaff, Franco, S’uapaia, and Michaels even in the 20
absence of union activity. In this regard, Respondent urges me to find that the mass discharge
that occurred in the midst of an ongoing organizing campaign in fact grew out of plan to
“restructure” its theater operation that was hatched in January (i.e., before the onset of the
campaign). As a preliminary matter, Respondent’s business records do not support this version
of events; indeed, the only documentary evidence of a “restructuring” operation being considered 25
prior to March was a proposal to eliminate unnecessary hours and convert certain full-time
positions to part-time that would have eliminated only one position (in Respondent’s wardrobe,
not theater, department). (Tr. 130–131, 193–194, 464, 479, 480, 677, 2579; R. Exh. 29; GC
Exh. 32.)
30
Notably, Respondent’s witnesses could not agree on when—and how—the “restructure”
came to be. As Saxe testified, in January, he and DeStefano decided to compile a list48 of
employees to be discharged (or, as he put it, as “shit list of who sucks”). He further testified that
a “handful”—but not all—of the discharges were decided that month. Saxe never credibly

47 I decline to find, as the General Counsel urges, that the presence of numerous cameras
throughout Respondent’s facilities warrants an inference that it was aware of employees’ onsite
organizing activities. As discussed in more detail, infra in connection with my analysis of the
Union’s Objection 10, I find insufficient record evidence to make such an inference, such as
actual video footage of employees engaging in such activities. As the Supreme Court has
cautioned the Board, presumptions of fact “must rest on a sound factual connection between the
proved and inferred facts.” NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 787 (1979) (citing Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 804–805 (1945)).
48 According to Saxe and DeStefano, the process involved Estrada and DeStefano making
discharge recommendations and there was no actual, physical list; Estrada, to the contrary,
claimed to have provided a handwritten list to DeStefano of his recommendations. No list was
introduced into evidence. (Tr. 131, 479, 791–793, 834–835.)
JD(SF)–25–19
51
explained why, having supposedly determined to discharge employees in January, Respondent
failed for approximately 3 months to carry through with this plan. Pendergraft was vaguely
blamed; Saxe claimed that the former manager had “lied and said he was handling things,” but
never actually asserted that those “things” included discharging a group of employees. (Tr. 258–
260.) 5
DeStefano contradicted Saxe’s version of events. According to her, the “restructure” was a
plan she devised to eliminate positions after Pendergraft’s departure. (Tr. 457–458, “I found a
way to restructure . . . I could run it with less people.”; “Jason left. I finally put paper to pen and
started figuring out how to restructure.”) She was adamant that, although she wanted to give 10
Saxe the names of employees she felt should be discharged (who happened to include Hill,
Glick, Tupy, Michaels, Gasca, Langstaff, and Franco), Pendergraft had this, and she and Saxe
therefore only discussed the fate of individual employees in mid-March after Pendergraft had
been fired.
15
At hearing, DeStefano attempted to “Bondo” the cracks in Respondent’s restructuring story,
offering a tempered version of Saxe’s “January” story that accommodated her own claims to
have had her hands tied by Pendergraft during that period. Saxe, she claimed, “had wanted to
restructure for a while” and had been “talking about it” before Pendergraft’s departure and in
January, after Pendergraft rejected her proposal to discharge employees, she emailed Saxe 20
“behind [Pendergraft’s] back,” reporting—without naming individual employees—that certain
theater employees were poor performers with poor attitudes. No such email was introduced.
Later, DeStefano ramped up her effort to synch her story with Saxe’s, claiming that he had
mentioned restructuring in production meetings as early as November 2017. I found this
testimony, which was corroborated only by Saxe, highly coached and unconvincing. (Tr. 457–25
458, 475–479, 2570–2571, 2770, 3468–3469.)
Saxe and DeStefano’s efforts resulted in a thoroughly untenable narrative whereby they, for
months, secretly schemed to overhaul Respondent’s workforce by identifying poor performers
(without contemporaneously documenting these individuals’ apparently varied and multiple 30
shortcomings and without arranging for any employees to replace them) and then, approximately
two weeks after learning that these very employees were organizing for representation,
summarily discharged them amid a flurry of backdated documentation. Blaming Pendergraft for
everything but the weather was necessary but ultimately insufficient to explain Respondent’s
conduct, including discharging employees DeStefano had only weeks before the organizing 35
campaign as ranked highly in terms of reliability and attitude. Ultimately, in the face of the
General Counsel’s substantial prima facie case, Respondent’s claimed storyline—which bore all
the hallmarks of being constructed for the courtroom—simply collapsed under its own weight. I
find that Respondent therefore failed to meet its burden under Wright Line,49 and that the General

49 I note that, separately and independently, the proven false and pretextual nature of
Respondent’s proffered rationales for each of the discharges, coupled with the ample additional
evidence of Respondent’s discriminatory intent, resolves the Wright Line with respect to each
discharge by rendering impossible Respondent’s effort to rebut the General Counsel’s case. See
David Saxe Productions, 364 NLRB No. 100, slip op. at 4 (2016); Frank Black Mechanical
Services, 271 NLRB 1302, 1302 fn. 2 (1984). For this reason, I do not consider or address
Respondent’s proffered “comparator” evidence in support of certain individual discharges.
JD(SF)–25–19
52
Counsel has established that Respondent discharged Glick, Bohannon, Graham, Gasca,
Langstaff, Franco, S’uapaia, and Michaels, in each case, based on their union activities, in
violation of Section 8(a)(3) of the Act.
As discussed, supra, the Union ultimately lost a Board-conducted election on May 17, in 5
which the ballots of Hill, Michaels, Glick, Graham, Bohannon, Franco, and Langstaff were
challenged. As the vote tally indicates that these challenged ballots would have been
determinative in the election results, I will recommend that the Regional Director be ordered to
open and count them and prepare a revised tally of ballots. Should that revised tally of
ballots show that the Union has received a majority of the valid ballots cast, the Regional 10
Director should then issue a certification of representative.
E. Kostew is Assigned Cue Calling Duties [Compl. ¶ 6(u)]
The General Counsel alleges that, in mid-April, Respondent rewarded anti-union employee 15
Kostew, in violation of Section 8(a)(3) of the Act, by assigning her cue calling duties.
1. Facts
As indicated earlier, calling cues amounts to a “track,” albeit one more complex and 20
challenging than the other tracks, as it involves acting as a liason between the stage crew and the
performers, as well as coordinating the other stagehand tracks and ensuring that they are
performed according to plan. Cue calling is typically the responsibility of a stage manager, and
there was consensus among the employee-witnesses that, for a stagehand, it is considered a
prestigious assignment. In the case of the Saxe Theater, the track was typically performed by 25
Estrada, although stagehand Graham took over the role when Estrada was off. Employees
testified that Kostew’s assignment was widely interpreted as a sign that she was on track for a
promotion to management, and employees even started referring to her as “boss” and “new
boss.” As Franco testified, he assumed that Kostew “linked to management,” because “she was
in a romantic relationship with the stage manager and was taking on responsibilities that were 30
above a spotlight operator.” (Tr. 781–783, 920, 932, 1351, 1648, 1729–1730, 2327–2328, 3165–
3168, 3178–3180, 3203–3205; GC Exh. 61.)
Following Graham’s March 21 discharge, Estrada announced to the Saxe theater stagehands
that Kostew was going to be the new cue caller. According to Kostew’s Facebook posts, it 35
appears that she began training for the track in early April and started running it solo on April
22.50 Prior to receiving this assignment, Kostew had been a stagehand and occasionally filled in
for the spotlight operating track; according to Saxe, the job of operating a spotlight is an “easier,”
more “entry-level” position at his theaters. DeStefano, who selected Kostew for the assignment,

50 DeStefano claimed to have selected Kostew to take over for Graham earlier, in February, when he
initially began his medical leave. This testimony is inconsistent with Kostew’s Facebook posts, and,
given DeStefano’s propensity to embellish and even outright fabricate on behalf of Respondent’s case, I
do not credit it. DeStefano also claimed that she selected an additional stagehand, Joseph Slezak, to fill in
for Estrada. (Tr. 2753–2754.) As discussed, infra, even assuming the accuracy of this claim, I do not find
it material to my analysis, as the record contains no evidence as to this individual’s union sympathies (or
lack thereof).
JD(SF)–25–19
53
had ranked her harshly in early February: 15th out of 21 stagehands. (R. Exhs. 30, 31; GC Exh.
84.) (GC Exhs. 60, 61; Tr. 61, 914, 920–921, 926, 1830, 3095–3096.)
DeStefano struggled to explain why she selected Kostew for the cue calling track. First, she
testified, she selected Kostew because of her “reliability” and ability to run multiple tracks; when 5
confronted with the low ranking she had assigned to Kostew in February, she claimed that, while
Kostew’s skills had remained level, her “attitude” improved when Pendergraft left, convincing
DeStefano that she deserved the assignment. Estrada was evasive when questioned about
Kostew’s cue calling duties, insinuating that she had been only temporarily assigned to replace
Graham as his (Estrada’s) backup and was no longer performing the track. He also downplayed 10
the number of times she had performed the track, claiming that she only called cues “a couple”
of times, later revising this to three or more times over the course of “as couple of weeks.”
Kostew, however, testified that she was still performing the track, often times when Estrada was
himself at the theater. (Tr. 921, 2786–2789, 3096, 3134.)
15
2. Analysis
While conduct alleged as violative of Section 8(a)(3) typically consists of an adverse action51
taken against a union adherent, an employer may also be guilty of discriminatory conduct where
it takes a positive action with respect to an anti-union employee for the purpose of rewarding and 20
encouraging that individual’s anti-union views or conduct. The Board’s Wright Line case
applies, the only difference being that the alleged unlawful motivation to be proven is the
encouragement of anti-union activity, as opposed to the discouragement of pro-union activity.
See Miramar Hotel Corp., 336 NLRB 1203, 1211 (2001); General Clay Products Corp., 306
NLRB 1046, 1052–1053 (1992).25
Accordingly, in the case of Kostew’s April assignment, the General Counsel’s threshold
burden is to establish by a preponderance of the credible evidence that Kostew’s anti-union
views and/or activities were in fact motivating factors in Respondent’s decision. I find that this
burden has been met. As a preliminary matter, proof of Respondent’s anti-union animus is 30
contained throughout the record, and I will not re-recite it here. The General Counsel has also
established that Kostew, who briefly participated in Devito’s online organizing chat, withdrew
from the employees’ effort and began to work actively against it.
Specifically, on March 1, two hours after Graham informed the group that Stage Manager 35
Estrada (Kostew’s significant other) was not interested in the organizing effort, Kostew posted
her own misgivings about unionizing the theaters. In an online exchange to which stage manager
Mecca had access, she then attempted to sow discord among the group’s members, warning them
that they might be getting set up for discharge and suggesting that Hill was in cahoots with
DeStefano, a claim that appears to have been manufactured out of whole cloth. Finally, she 40
dramatically declared that she was “tapping out” of the organizing effort and continued
antagonizing Hill until the latter removed her from the group chat. Notably, Stage Manager

51 It is undisputed that, by receiving the backup cue caller assignment, Kostew did not receive
an increase in wages; however, the Board has held that changing an employee’s job duties may
itself be actionable under Sec. 8(a)(3) of the Act. See, e.g., Stafford Ambulance Assn., 351
NLRB No. 78 (2007).
JD(SF)–25–19
54
Mecca had access to this entire exchange. Kostew later overtly signaled her anti-union stance by
recruiting employees to forgo the second in-person union meeting and instead respond to Saxe’s
stage repair “work call.”
Both the timing and circumstances of Kostew being assigned the cue calling track are5
suspect. She was selected for the assignment as a replacement for Graham, who—along with
other pro-union employees—had recently been discharged. In DeStefano’s estimation, she was
not considered an especially talented stagehand, as evidenced by her low performance ranking,
and she had previously been assigned the lower-level task of spotlight operator. Under all the
circumstances, I find that Kostew’s cue calling assignment was intended to demonstrate to the 10
theater employees that those who supported the Union would be punished and those who
opposed it would be rewarded. As such, I find that the General Counsel has made out a prima
facie case that the assignment to Kostew of cue calling duties was motivated by her anti-union
stance.
15
The burden therefore shifts to Respondent to establish that it would have taken the same
action it did, even in the absence of Kostew’s position with respect to the organizing campaign.
This Respondent has failed to do. Ultimately, even DeStefano was forced to admit that she
selected Kostew not because her less-than-steller performance had improved, but rather because
she experienced a positive change in her “attitude.” As the Board has recognized, references to 20
an employee’s “attitude” may in fact serve as euphemisms for that employee’s leanings, union-
wise. See Blue Star Services, 328 NLRB 638, supra; Schaumburg Hyundai , 318 NLRB 449,
supra; Boyer Ford Trucks, Inc., 254 NLRB 1389, supra. That DeStefano explicitly identified the
majority of the discharged employees as having problems with their “attitude,” leads me to
believe that her use of the same term to describe the basis for Kostew’s new assignment was 25
essentially an admission that the decision was made based on her non-union stance. As such, I
find that Respondent has failed to demonstrate a legitimate, non-pretextual reason for assigning
Kostew cue calling duties.52
Accordingly, I find that, by assigning Kostew cue calling duties, Respondent violated Section 30
8(a)(3) of the Act as alleged in paragraph 6(u) of the complaint.
F. The April 26 Petition for Election and Respondent’s Initial Response
On April 26, the Union filed a petition for election, seeking to represent a unit of employees 35
consisting of:
All full-time and regular part-time Stagehands, Lighting
Technicians, Audio Technicians, Spotlight Operators, and
Wardrobe Technicians employed by [respondent’s] at the Saxe 40
Theater and V Theater facilities in Las Vegas, Nevada.

52 As noted, I reject Respondent’s claim that the apparent assignment of cue calling duties to
stagehand Slezak is evidence of its lack of antiunion animus. Slezak failed to testify and
therefore I cannot assume that his attitude towards the Union was any different from that of
Kostew herself.
JD(SF)–25–19
55
(GC Exh. 1(o).) Saxe was served with the petition on April 27, after which he texted DeStefano,
“Union is official” and told her he would be holding meetings with employees. (Tr. 3473; GC
Exh. 35.)
1. Respondent holds captive-audience meetings5
On May 15, the employee-voters attended 2–3 hour mandatory meetings on the subject of the
upcoming vote. The meeting took place in two segments, with a 15-minute break in between;
the first segment was led by a consultant hired by Respondent with only employees (excluding
Kostew) in attendance. Vocal during this portion of the meeting were future discriminatees 10
Raymond Tupy (Tupy) and Scott Leigh (Leigh). Each of them openly challenged the
consultant’s claims, with Tupy stating that he had been a union steward for the Union53 and that
what the consultant was saying was untrue. (Tr. 1006, 1743–1750, 1897–1898, 2052; GC Exh.
39.)
15
After a 15-minute break, the employees were called to return to the meeting; at this point,
various managers and supervisors joined the meeting, including Saxe, DeStefano, and Estrada.
Kostew also joined the meeting at this time. Saxe addressed the group; apologizing for not
paying attention to the theaters and the employees, he promised to try to be around more often.
Growing emotional, he then said he hoped that they would give him another chance to try to 20
make things better. The Union, he said, could make things difficult, and employees might
therefore regret voting for representation. Tupy testified that he and two other people asked
questions, but he could not recall what. Saxe admitted to delivering remarks during the meeting
and failed to deny the statements attributed to him. (Tr. 1750–1751, 1899, 1952–1953, 3534,
3540.)25
2. Saxe singles out Tupy and Glen for a private discussion [Compl. ¶ 5(j)]
Following the meeting, Saxe approached Tupy and Glen at the V3 Theater’s audio booth,
where they were preparing for that evening’s show. During the conversation that ensued, 30
according to the General Counsel, Saxe gave the two men the impression that their union
activities were under surveillance.
According to Glen, testified that Saxe began the conversation by stating, “you know, I know
you guys. . . are both pro-union,” and added that he was not going to hold that against them. 35
Tupy’s recollection was similar, but not identical; he testified that Saxe said that he knew he had
“lost” both of them,54 and that they should think about how they were going to vote and consider
not voting for the Union. Saxe then told Glen, “I know you’re pro-union, because of your
girlfriend, Jasmine [Glick].” Tupy intervened and engaged Saxe, stating that he “didn’t start this
whole union thing” but had been a union member for years and was going to vote for the Union. 40

53 Tupy was open about his pro-union stance, which he made known to management prior to
his hire. (Tr. 1743.)
54 While Tupy’s recollection of Saxe’s opening remark was different than that of Glen, he
understood it to mean essentially the same thing. (Tr. 1756; “I just thought he meant that we
were going to vote for the Union and that he lost us”).
JD(SF)–25–19
56
He then told Saxe he expected to get fired once the vote was completed; Saxe responded that he
could not fire (or hire) anyone, because of a “union freeze.” (Tr. 1745, 1752–1753, 1901–1902.)
While Saxe did not deny that this exchange occurred, his version was different in key
aspects. In his iteration, he approached the booth and was immediately “attacked” by Tupy, who 5
accused him of not answering a question during that evening’s meeting. Then, he claimed, Glen
engaged him, demanding to know why Glick had been discharged. By Saxe’s telling, he was
conciliatory and measured in his response to the two men, telling Tupy he had “no problem”
with him being pro-union and assuring Glen that he had “issues” in the past with Glick, but could
not violate her confidentiality. (Tr. 3541, 3623.)10
The General Counsel alleges that Saxe’s comments amounted to creating the impression of
surveillance by (a) telling employees that he knew they supported the Union, and (b) telling
employees he knew they were going to vote yes for the Union. I agree. As a preliminary matter,
I credit the employees’ version of this meeting, as opposed to Saxe’s rather obviously sanitized, 15
self-serving version, which appeared tailored to explain why he had chosen to seek out Tupy,
who had been vocally pro-union in the preceding group meeting.
It is well settled that an employer creates an impression of surveillance by indicating to
employees that it is aware of their union activity without disclosing the source of that 20
information, “because the ‘employees are left to speculate as to how the employer obtained the
information, causing them reasonably to conclude that the information was obtained through
employer monitoring.’” Charter Communications, LLC, 366 NLRB No. 46, slip op. at 4–5
(2018) (quoting Stevens Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1296 (2009), affd. and
incorporated by reference in 357 NLRB 633 (2011), enfd. 498 Fed.Appx. 45 (D.C. Cir. 2012)) 25
(emphasis in original). Such is the case where a supervisor tells employees, as Saxe did, that he
knows how they will vote in an upcoming election. Capitol EMI Music, 311 NLRB 997, 1006
(1993). While Tupy was known to be pro-union and had been vocally so during the group
meeting that night, there is no evidence that Glen had done so as well. By stating that he knew
Glen, by virtue of his relationship with Glick, was pro-union and would vote “yes,” Saxe 30
indicated that he knew that Glick was herself pro-union but did not explain the source of his
information. As such, I find that this statement violated the Act as alleged in paragraph ¶ 5(j) of
the complaint.
3. Saxe speaks with Prieto one-on-one [Compl. ¶ 5(h)]35
Saxe also spoke with Prieto following the meeting backstage at the V Theater, and, according
to the General Counsel, created the impression that his union activities were under surveillance
and additionally promised him increased benefits and terms of employment by soliciting his
complaints and grievances. According Prieto, Saxe approached him as he was working and said 40
that he had heard that he was a “very good worker” and did a “great job” and also that he was
“pro-union.” He then said he didn’t think he would be able to change Prieto’s mind “on
anything” but hoped that, no matter the outcome of the vote, it did not “cause a rift” between
them. Prieto said thanks in response, at which point Saxe asked him if had ever tried to contact
him about anything, including “any changes.” Prieto responded that he had tried to convince 45
management to give him a raise for his work on a specific aerial act, to which Saxe responded
that he had not heard anything like that. (Tr. 1953–1956, 1975.)
JD(SF)–25–19
57
Once again, Saxe attempted to portray a rosier version of events; in his version, he told Prieto
that he had learned from a performer (whom he identified) that Prieto had been badmouthing
Saxe and saying that he was “going to get the Union in here and F me up and stuff like that.”
Only then, according to Saxe, did he tell Prieto that he knew he was pro-union, that it was 5
“okay” and that he did not want Prieto to feel uncomfortable or at odds with anyone. (Tr. 3536–
3538.) This portion of Saxe’s testimony stood out as particularly rehearsed, and I do not credit
it.
As he had previously with Tupy and Glen, Saxe unlawfully created the impression of 10
surveillance with Prieto by stating he knew he was “pro-union” without explaining the source of
this knowledge. See Greater Omaha Packing Co., 360 NLRB 493, supra at 496. In addition, by
asking Prieto if had ever tried to contact him about “any changes,” Saxe unlawfully solicited
grievances. Absent a previous practice of doing so, the solicitation of grievances during an
organizational campaign, accompanied by a promise expressed or implied to remedy such 15
grievances, violates the Act. See Center Service System Division, 345 NLRB 729, 730 (2005);
Amptech, Inc., 342 NLRB 1131, 1136–1138 (2004), enfd. 165 Fed.Appx. 435 (6th Cir. 2006);
Maple Grove Health Care Center, 330 NLRB 775, 775 (2000) (citing Capitol EMI Music, 311
NLRB 997 (1993), enfd. mem. 23 F.3d 399 (4th Cir. 1994)). “[T]he fact an employer’s
representative does not make a commitment to specifically take corrective action does not 20
abrogate the anticipation of improved conditions expectable for the employees involved.” Maple
Grove Health Care Center, 330 NLRB at 775.
In this case, Saxe implicitly solicited grievances from Prieto by asking whether he had ever
tried to contact him about “any changes.” While subtle, this remark was reasonably understood 25
to signal to Prieto that Saxe was receptive to hearing what Prieto, whom he considered pro-
union, wanted to see changed in his work life. Significantly, their exchange came on the heels of
Saxe’s captive audience speech, in which he had apologized for not being more present at the
theater and promised to change his ways and “make things better” if given a chance, essentially
indicating that, going forward, he would be more available and receptive to employees’ requests 30
and concerns, obviating any credible past-practice argument. As such, I find that Saxe implicitly
promised to address Prieto’s grievance in violation of Section 8(a)(1) of the Act.55
Accordingly, I find that Respondent, by Saxe, violated Section 8(a)(1) of the Act as alleged
in paragraph 5(h) of the complaint.35

55 I find the Board’s decision in Airport 2000 Concessions, 346 NLRB 958 (2006), relied on
by Respondent, to be distinguishable. In that case, the employer successfully rebutted a
supervisor’s implied promise to remedy complaints where, following employees’ stating their
grievances, the supervisor “proceeded to equivocate, temporize, and ultimately outright deny”
that these grievances would actually be addressed. Saxe did no such thing; if anything, his
response that he had never heard that Prieto wanted a raise, continued to suggest his
receptiveness.
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G. DeStefano Arranges for a Shuttle Bus to Transport Employees
to the Polls and “Reminds” Tupy and Glen to Show Up [Compl. ¶ 5(k)]
The secret ballot election was scheduled to take place on May 17 at the Board’s Las Vegas
resident office. Days before the election, DeStefano announced to employees that there would 5
be a shuttle bus available at one of the theaters to transport them to the Board office, even if they
were not scheduled for work that day. On May 16–17, DeStefano also texted employees,
reminding them when the bus would leave. On the day before the election, DeStefano sent
individual text messages to Glen and Tupy (who had been singled out by Saxe following the
captive audience meetings). Both men were scheduled off at the time of the work call, and Tupy 10
had already informed DeStefano that he would be not be taking the shuttle bus. Nonetheless, she
asked each of them to confirm whether or not they wanted to take advantage of Respondent’s
offer to transport them to the polls. (Tr. 556–557, 712, 1960–1961, 1990, 2754–2755; GC Exh.
40, 41, 71; CP Exh. 3.)
15
Under established Board law, an employer may provide transportation to and from a polling
station, provided that the benefit is offered on a nondiscriminatory basis, and the employees are
free to accept or reject the offer. See Heintz Mfg. Co., 103 NLRB 768 (1953). The General
Counsel, however, argues that the “reminder” text messages DeStefano sent to Glen and Tupy
the day before the election violated the Act, in that they constituted both surveillance of union 20
activities and creation of the impression of surveillance. I agree with the General Counsel that,
based on the Board’s decision in B&K Builders, Inc., 325 NLRB 693, 694 (1998), DeStefano’s
texts did, in fact, create the impression of surveillance, in that a reasonable employee, having
received such a message, would understand that management was monitoring their voting plans.
I disagree, however, that DeStefano’s texts constituted “surveillance” as understood by Board 25
law; the General Counsel cites no authority for this proposition, and I have found none.56
Accordingly, I find that Respondent, by DeStefano, violated Section 8(a)(1) of the Act as alleged
in paragraph 5(k)(ii) of the complaint, and further recommend that paragraph 5(k)(i) of the
complaint be dismissed.
30
THE MAY 17 ELECTION AND RESPONDENT’S ALLEGED OBJECTIONABLE CONDUCT
On May 17, the vote took place. Present as the Union’s designated observer was Urbanski;
Kostew served as Respondent’s observer. As of the date of the election, Charging Party had35
filed unfair labor practice charges alleging that Hill, S’uapaia, Michaels, Glick, Graham,
Bohannon, Franco, Gasca, and Langstaff had been unlawfully discharged. Seven of these
employees, all but Gasca and S’uapaia, voted subject to challenge at the election. The Union lost
by a vote of 22 to 19, rendering those challenged ballots determinative. (Tr. 662–663, 1054–
1055, 1210, 1300, 1381, 1532, 1841, 2266–2267, 2327, 2504, GC Exhs. 1(a), 54.)40
On May 24, 2018, the Union filed 14 post-election objections, including one based on the
discharge of union adherents, arguing that Respondent, by and through their supervisors and
agents, engaged in conduct that objectively interfered with the employee-voters’ exercise of free

56 It does appear that DeStefano, by her texts, was attempting to gauge whether Tupy and Glen were
in fact pro-union (as Saxe had surmised), but the complaint fails to allege her conduct as unlawful polling.
JD(SF)–25–19
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choice. As discussed, supra, I have already concluded that, because a determinative number of
ballots were cast by employees discharged in violation of the Act, those ballots should be
reopened and counted, and a revised tally of ballots should issue. Should, however, this revised
tally of ballots demonstrate that the Union has not received a majority of the ballots cast, the
Union argues that Respondent’s objectionable conduct warrants setting aside the election and 5
directing a re-run election. I agree.
A. The Board’s Framework Governing Objections
Under well-established Board doctrine, for conduct to be objectionable, it must normally 10
occur during the critical period, which begins on the date the petition is filed, and runs through
the date of the election, during which “laboratory conditions” must be maintained. Ideal Electric
Mfg. Co., 134 NLRB 1275 (1961); Dal-Tex Optical Co., 137 NLRB 1782 (1962). Generally,
conduct that occurs prior to the critical period is not considered objectionable. Ideal Electric,
supra; Data Technology Corp., 281 NLRB 1005, 1007 (1986). Exceptions to this general rule 15
exist, however. For example, prepetition conduct found to be truly egregious or likely to have a
“significant impact” on the election may nonetheless be considered objectionable. See, e.g.,
Servomation of Columbus, 219 NLRB 504, 506 (1975) (violence or threats thereof). Similarly,
where prepetition conduct “adds meaning and dimension to related post-petition conduct,”
Dresser Industries, 242 NLRB 74 (1979), it may be found objectionable. The critical period for 20
purposes of Charging Party’s objections began on April 26, when the petition was filed.
The Board applies a different standard to allegedly objectionable conduct, depending on
whether it has also been found to constitute an unfair labor practice. Specifically, unfair labor
practice conduct that occurs during the critical period prior to an election is, a fortiori, conduct 25
that interferes with the results of the election unless it is so de minimis that it is “virtually
impossible to conclude that [the violation] could have affected the results of the election.”
Intertape Polymer Corp., 363 NLRB No. 187 (2016); see also Pacific Coast Sightseeing Tours &
Charters, Inc., 365 NLRB No. 131, slip op. at 10 (2017); Super Thrift Market, Inc., 233 NLRB
409, 409 (1977); Dal-Tex Optical Co., supra, at 1786. In determining whether the unlawful 30
conduct is de minimis, the Board considers a number of factors, including the number of
incidents, their severity, the extent of dissemination, and the size of the unit. Super Thrift
Market, supra, at 409.
On the other hand, when alleged allegedly objectionable conduct does not also constitute an 35
unfair labor practice, the Board will evaluate whether that conduct, taken as a whole, warrants a
new election because it has “the tendency to interfere with employees’ freedom of choice” and
“could well have affected the outcome of the election.” Cambridge Tool & Mfg. Co., 316 NLRB
716 (1995); Metaldyne Corp., 339 NLRB 352 (2003). In making this determination the Board
examines several factors, including: (1) the number of incidents; (2) the severity of the incidents 40
and whether they are likely to cause fear among employees in the bargaining unit; (3) the number
of employees in the bargaining unit subjected to the misconduct; (4) the proximity of the
misconduct to the election; (5) the degree to which the misconduct persists on the minds of the
bargaining unit employees; (6) the extent of dissemination of the misconduct among the
bargaining unit employees; (7) the effect, if any, of misconduct by the opposing party to cancel 45
out the effects of the original misconduct; (8) the closeness of the final vote; and, (9) the degree
JD(SF)–25–19
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to which the misconduct can be attributed to the party. Cedars-Sinai Medical Center, 342 NLRB
596, 597 (2004); Taylor Wharton Division, 336 NLRB 157 (2001).
B. Analysis of Individual Objections
5
1. Pre-petition conduct [Objections 1, 3 and 11]
Charging Party contends that certain of Respondent’s conduct occurring before the Union’s
representation petition was filed constitute objectionable conduct warranting overturning the
election results. Specifically, these actions include the unlawful discharges of Hill, Glick, 10
Franco, Bohannon, Langstaff, Gasca, S’uapaia, Graham, and Michaels, the March 15 wage
increase and Kostew’s warning Prieto about discharging union adherents. I disagree. Charging
Party has failed to establish that this misconduct, while serious, qualifies for an exception to the
Board’s rule that objectionable conduct take place during the critical period, and decline to so
find. See Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961); see also Kokomo Tube Co., 280 15
NLRB 357 (1986). I therefore recommend that they be overruled.57
2. Unlawful Handbook Rules [Objection 14]
I have found that two of Respondent’s handbook rules, each maintained during the critical 20
period, to be unlawful: the first is a restriction on employee blogging content that is
“detrimental” to Respondent’s interests or “tarnishing” to its reputation; the second is a
requirement that employees refer to management all requests from “outside people or
organizations” to solicit or distribute literature on Respondent’s premises at any time. There is
no evidence that either of these rules, which were disseminated via Respondent’s employee 25
handbooks, have ever been enforced against any employee. Nor is there any evidence that either
of the rules operated to chill protected conduct.
Such evidence, however, is not required to deem these rules objectionable. As the Board has
held, “[i]t is well settled that, absent evidence of a rule’s chilling effect, “the maintenance of an 30
unlawful rule is objectionable conduct sufficient to warrant setting aside an election.” IRIS
U.S.A., Inc., 336 NLRB 1013, 1013, fn. 4 (2001); see also Jurys Boston Hotel, 356 NLRB 927
(2011) (evidence of a rule’s chilling effect not required because “employees could reasonably
construe the provision as a directive from their employer that they refrain from engaging in
permissible Section 7 activity”) (quoting Pacific Beach Hotel, 342 NLRB at 373–374).35
As I have found each of these rules to violate Section 8(a)(1) during the critical period, they
will be deemed objectionable unless they are deemed so de minimis that it is “virtually
impossible” to conclude that their maintenance could have affected the results of the election.
See Intertape Polymer Corp., 363 NLRB No. 187, supra. I would characterize neither of these 40
rules as de minimus. They are each aimed at core Section 7 rights: critiquing Respondent’s
employment practices and requiring employees to report attempts to solicit or distribute literature

57 Objection 11 also included an allegation that, within the critical period, employees were
threatened with job loss and closure of theater shows. I found the evidence in support of this
exception (a single employee’s testimony) to lack credibility and would therefore recommend
overturning Objection 11 on this ground as well. See Tr. 1899–1900.
JD(SF)–25–19
61
by “outside organizations” such as unions. Considering this direct impact on protected rights, as
well as the rules’ wide dissemination throughout Respondent’s work force (accompanied by a
warning that violating them could result in discharge), I cannot conclude that it is “virtually
impossible” that these rules could have affected the results of the election. Indeed, should the
Regional Director’s retally of results, after counting the ballots of the seven unlawfully 5
discharged employees, evidence another defeat for the Union, it is a distinct possibility
(depending on the margin of defeat) that Respondent’s maintenance of these unlawful rules
during the critical period may have directly accounted for such loss.
As such, I find that the Union’s Objection 14, insofar as it is based on the allegations in 10
paragraphs 5(b)(2) and (3) to have merit and therefore sustain it.
3. Reduction in Glen’s work hours [Objection 13]
In May, Glen worked a part-time schedule of approximately 22 hours per week. According 15
to Charging Party, effective May 6, Respondent reduced his hours to 11 hours per week. The
testimony in support of this objection took the form of Glen’s somewhat vague testimony that,
during this time period, “I stopped doing or stopped getting called in for work calls which were like
around 4 p.m., 4 to 5 p.m.” DeStefano testified, however, this change to Glen’s schedule was part of
an across-the-board action that impacted numerous employees. Specifically, she explained, in early 20
May, she and Saxe decided to stop announcing work calls for all part-time employees, such as Glen.
(Tr. 1904, 2723–2731.) This testimony went unrebutted, nor was there any evidence that Respondent
undertook the schedule change as a means of targeting Glen personally. As such, I recommend that
Objection 13 be overturned.
25
4. Kostew’s conduct as Respondent’s alleged agent [Objections 4 and 9]
The General Counsel alleges that Kostew is an agent of Respondent pursuant to Section
2(13) of the Act. While she is not alleged to have committed any unfair labor practice, Kostew’s
agency status is relevant for purposes of supporting certain of Charging Party’s objections to the 30
election. Specifically, Kostew is alleged to have intimidated voters, engaged in surveillance and
unlawfully polled an employee on the morning of the election to determine his position on
unionization. Charging Party argues that Kostew’s agency status arose based on her relationship
with Stage Manager Estrada, her promotion to the “cue caller” track and her designation as
Respondent’s election observer.58 35
a. Facts
Kostew has, for at least 2 years, worked as a stagehand at the Saxe Theater, which is
managed by Estrada. Estrada and Kostew began dating in early 2017 and began living together 40
in April or May of the following year. Their relationship is common knowledge among
Respondent’s work force. As discussed, infra, Kostew was, in April, assigned a prestigious role
at work typically performed by a manager (an assignment I have found to constitute an unlawful

58 I note that Charging Party does not contend that Respondent unlawfully attempted to
interfere with the conduct of the election by appointing Kostew as its observer. See, e.g., B-P
Custom Building Products, 251 NLRB 1337 (1980).
JD(SF)–25–19
62
reward for her anti-union stance). Kostew also joined the April 15 captive audience meeting
only at its mid-point (when she arrived with Respondent’s managers and supervisors) and served
as Respondent’s observer at the union election. (Tr. 379, 830–831, 854, 861, 2481, 3106.)
The evidence indicates that Kostew has occasionally acted as a liason between management 5
and her fellow stagehands. As discussed, supra, she did so on at least one occasion as part of
Respondent’s response to the employees’ organizing campaign, when she, on behalf of Estrada
and Saxe, solicited employees to a last-minute “work call” scheduled the same night as an
organizing meeting. On another occasion, Kostew relayed an employment offer from Estrada to
a prospective employee. At hearing, Kostew and Estrada each downplayed Kostew’s role as a 10
liason to the theater employees, claiming that Estrada also regularly asked other employees to
pass along information. (GC Exh. 59; Tr. 896–897, 1474, 3097–3098.) No such “other
employee,” however, corroborated this testimony.
Charging Party’s Objection 4 (intimidating voters and engaging in surveillance) is based on 15
Kostew’s conduct the night before the vote. Between 9 and 11 p.m., Estrada called a meeting
among the Saxe Theater stagehands. Kostew testified that the purpose of the meeting was to get
everyone “on the same page” about the next day’s vote. Approximately 10 stagehands and 2
audio techs were in attendance. With Estrada present, Kostew told the employees that they
should “vote no” in the next day’s election; she also delivered a short set of remarks, including 20
the following:
whether you’re for or against the Union, I would like you to keep
DSP union free . . . if you want a union gig, go join a union and
work the gigs that they give you. This company has been fine 25
without it . . . and if you’re that dead set on a union, just go join
one. And it’s Vegas; they get conventions and stuff all the time, so
it’s easy to get union work. But keep this not unionized.
After Kostew spoke, two other anti-union employees chimed in, agreeing with her. No one 30
spoke up in favor of the Union. (Tr. 2497–2499, 2502, 2507–2508.)
Kostew also shared her “vote no” message with each of the Saxe Theater stagehands who
was not present but was on the payroll as of that day; she testified that these exchanges happened
in person and “maybe, probably” via text message and/or Facebook messenger. At 2 a.m. on the 35
day of the vote, she also sent audio tech Petty a Facebook message containing a single word,
“Bryyyyyyce!” He did not respond. (CP Exh. 6; Tr. 2409–2411.) This text, according to
Charging Party, amounted to unlawful polling by Kostew (Objection 9).
b. Analysis40
The Board’s test for determining whether an employee is an agent of the employer is
whether, under all of the circumstances, employees would reasonably believe that the employee
in question was reflecting company policy and speaking and acting for management.
Albertson’s, Inc., 344 NLRB 1172 (2005). The Board considers the position and duties of the 45
employee in addition to the context in which the behavior occurred. Jules V. Lane, 262 NLRB
JD(SF)–25–19
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118, 119 (1982). The Board’s standard is derived from the common law on apparent authority,
which results from:
a manifestation by the principal to a third party that creates a
reasonable basis for the latter to believe the principal has 5
authorized the alleged agent to perform the acts in question. Either
the principal must intend to cause the third person to believe the
agent is authorized to act for him, or the principal should realize
that his conduct is likely to create such a belief.
10
Mastec North America, Inc., 356 NLRB 809, 809–810 1–2 (2011) (citations omitted).
Over the years, the Board has given consideration, in applying this standard, to whether the
alleged agent has regularly been used by the employer as a conduit of information to its
workforce and could thus reasonably viewed by employees as speaking on the employer’s 15
behalf. See, e.g., B-P Custom Building Products, 251 NLRB 1337, 1338 (1980) (agent “relayed
information from management to employees and had been placed by management in a strategic
position where employees could reasonably believe he spoke on its behalf”); Einhorn
Enterprises, 279 NLRB 576 (1986) (agent “relayed confidential information obtained from
management to rank-and-file employees”); Southern Bag Corp., 315 NLRB 725 (1994) (agent 20
was “an authoritative communicator of information on behalf of management”); Roskin Bros.,
274 NLRB 413, 421 (1985) (rank-and-file employee who was perceived by other employees as
manager’s “right-hand man” relaying instructions to employees was employer’s agent).
Applying these principles here, I find that Kostew delivered her election-eve speech as 25
Respondent’s agent. A month earlier, Respondent had actively enlisted her in its effort to
frustrate the organizing effort, and was explicitly charged publicizing that Saxe personally
wanted employees to volunteer for the last-minute work call scheduled at the same time as a
union meeting. As discussed, this rather ham-fisted maneuver effectively outed those employees
who declined the work call in in lieu of the meeting. Notably, in this instance, Kostew acted 30
with specific, actual authority, see Acme Bus Corp., 320 NLRB 458, 458 (1995), which she
announced to employees, stating that Estrada had asked her to relay Saxe’s message.
A month later, Respondent rewarded Kostew’s loyalty by announcing that she would receive
a plum work assignment, which employees viewed as a stepping stone to a management position. 35
Finally, on the eve of the election, employees were ordered to listen to Kostew—flanked by her
significant other, Stage Manager Acosta—deliver a “vote no” speech that echoed the message
delivered earlier in Respondent’s own meetings. Notably, Respondent themselves were
explicitly forbidden, under established Board law, from conducting such a mandatory speech
within 24 hours before the scheduled time for an election. See Peerless Plywood Co., 107 40
NLRB 427, 429 (1954). Thus, by using Kostew to deliver the message they could not,
Respondent unmistakably held her out as aligned with their interests and thus a reliable conduit
for echoing their anti-union message, which employees had heard from Saxe and his consultant
hours earlier. Beverly California Corp., 326 NLRB 232, 234–235 (1998) (statements by anti-
union employees during captive audience meeting coercive when manager present expressly 45
called upon them to express their views), enfd. in relevant part 227 F.3d 817 (7th Cir. 2000). I
JD(SF)–25–19
64
therefore find that the Union’s Objection 4, insofar as it is based on Kostew intimidating voters,
to have merit and sustain it.59
Conversely, I find that Objection 9, alleging that Kostew unlawfully polled Petty on the
morning of the election, is not supported by the record. Here, the record evidence shows that, 5
while she may have ultimately admitted that her brief and failed attempt to contact him was in
fact aimed to learn how he planned to vote, her single-word message was not coercive on its
face. I therefore recommend that Objection 9 be overruled.
5. Objections involving compliance with stipulated election agreement10
On May 9, the parties entered into a stipulated election agreement that was approved by the
Regional Director for Region 28 the same day (the stipulation). Several of Charging Party’s
objections are based on Respondent’s alleged failure to adhere to the terms of the stipulation,
including failing to provide an appropriate voter eligibility list and failing to properly post and 15
distribute Board notices.
a. Alleged defects in the voter eligibility list [Objection 2]
The parties’ stipulation contains standard language requiring Respondent to provide a voter 20
list (commonly referred to as an “Excelsior list”) listing contact information for “eligible voters,”
including home addresses, available personal email addresses,60 and available home and personal
cellular telephone numbers. (See GC Exh. 1(j).) The stipulation does not, however, specifically
address whether individuals permitted to vote subject to challenge must be included in the list.
25
On May 11, Respondent served its list on the Union. The list did not contain the names or
contact information for the discharged employees who were entitled to vote subject to challenge
and contained personal email addresses for only 29 of the 48 employees listed. (CP Exh. 7; Tr.
2441–2442.) Charging Party asserts that these omissions constitute objectionable conduct.
Respondent counters that nothing in the parties’ stipulation required it to list subject-to-challenge 30
voters, and that Charging Party failed to demonstrate that it omitted personal email addresses of
which it was aware.
In determining whether an incomplete Excelsior list warrants setting aside an election, the
Board has emphasized that the rule is not to be “mechanically applied.” Telonic Instruments, 35
173 NLRB 588, 589 (1969); General Time Corp., 195 NLRB 343, 344 (1972); Program Aids
Co., 163 NLRB 145, 146 (1967); Thrifty Auto Parts, 295 NLRB 1118 (1989). Typically,
“substantial compliance” will suffice; a finding that the employer has acted in bad faith,
however, precludes a finding of substantial compliance. See Woodman’s Food Markets, 332
NLRB 503, 504 fn. 9 (2000) (citing Bear Truss, Inc., 325 NLRB 1162, 1162 fn. 3 (1998)). 40
With respect to the failure to list employees’ personal email addresses, I agree with Respondent
that Charging Party has failed to establish that it actually withheld email addresses of which it

59 Charging Party fails to explain how Kostew’s conduct constituted “surveillance” as
alleged, and I decline to so find.
60 An employer is not required to provide workplace email addresses. Trustees of Columbia
University, 350 NLRB 574, 576 (2007).
JD(SF)–25–19
65
was aware. Indeed, there is no evidence that Respondent was in possession of, but failed to
disclose, any employee’s personal email address.
I also agree with Respondent that, pursuant to the parties’ stipulation, it was not obligated to
list the subject-to-challenge voters. The Board’s Rules governing Excelsior lists make it clear 5
that, in addition to listing eligible voters:
[t]he employer shall also include in a separate section of that list
the same information for those individuals whom the parties have
agreed should be permitted to vote subject to challenge . . .10
Rules & Regulations Secs. 102.62(d) (emphasis added). Here, Charging Party agreed to, and the
Regional Director approved, a stipulation that failed to identify agreed upon, subject-to-
challenge voters. I find this omission unambiguous and therefore binding on Charging Party.
See Carl’s Jr., 285 NLRB 975, 975 fn. 1 (1987) (the Board will accept stipulations of parties 15
unless they are contrary to record evidence, the Act, or Board policy). Accordingly, I find no
merit to Objection 2 and recommend that it be overruled.
b. Alleged failure to properly post the Notice of Petition for Election [Objection 5]
20
Since 2014, the Board’s Rules and Regulations have provided that, following the filing of an
representation petition, the Board’s regional office will serve on the parties a “Notice of Petition
for Election,” which must be posted within 2 business days “in conspicuous places, including all
places where notices to employees are customarily posted” and remain posted until it is replaced
by a Notice of Election. See Rules Sec. 102.63(a)(1) and (2). Charging Party contends that the 25
election should be overturned not because Respondent failed to post the Notice of Petition for
Election, but rather because it was not posted “in all applicable break rooms and conspicuous
places visible to eligible voters.” (See Objection 5.) I disagree.
The evidence indicates that this notice was posted in compliance with the stipulation’s 30
requirement. Saxe testified that, when he received a packet from the Region including the
“Notice of Petition for Election,” he immediately ordered his managers to ensure that “they all
got posted,” and later confirmed that this was the case. He also personally observed numerous
postings throughout the facility on bulletin boards alongside other notices to employees during
the relevant time period. This was corroborated by Charging Party’s own evidence, which 35
includes photographs of the notices posted on bulletin boards. (Tr. 3609, 3511–3513, 3518; CP
Exhs. 2, 5.)
In support of its contention that the postings were insufficient, Charging Party offered the
testimony of Tupy and Prieto. Tupy photographed a timeclock lacking the posting; Prieto 40
photographed a second timeclock with no posting. Each of these photographs appear to show a
timeclock flanked not by notices to employees, such as EEOC and OSHA disclosures, but by
instructions on clocking in and out procedures. Prieto further testified that one of the postings
was placed behind a locked door not accessible by all employees, and that this door was only
unlocked a week later. The same posting, he testified, was placed near management offices, 45
such that an employee reading it would risk being observed. (CP Exh. 1; Tr. 1792, 1947–1951,
2438–2441.)
JD(SF)–25–19
66
Nothing in the record in this case indicates that Respondent’s posting of the “Notice of
Petition for Election” was inadequate. Charging Party alleges no delay in the posting and did not
rebut Saxe’s testimony that the notice was placed conspicuously throughout the facility at places
where notices to employees are typically placed. The stipulation certainly does not mandate that 5
a notice be posted next to every timeclock in Respondent’s facility. Nor am I convinced that the
posting of a single notice within the vicinity of management offices destroys the laboratory
conditions necessary for a fair election.
As such, I find no merit to Objection 5 and recommend that it be overruled.10
c. Alleged interference with posting of Board Notice of Petition for Election
[Objection 6]
Respondent also agreed, per the stipulation, to post copies of a Board Notice of Election at 15
least 3 full working days prior to the day of the election. See Section 102.67(k) of the Board’s
Rules and Regulations. Charging Party alleges that Respondent committed objectionable
conduct by “surrounding the Notice of Elections with ‘vote no’ signs and other anti-union
propaganda.” (CP Br. at 3.) Charging Party offered into evidence two photographs of Notices of
Elections in which anti-union postings also appear. The messages in these non-Board postings, 20
which are presented in different font and color than the Board notices, include “VOTE NO” in
large font, informational flyers about dues checkoff and the Board’s election process, and contact
information for organizations such as the National Right to Work Foundation. (CP Exhs. 2, 5.)
I agree with Respondent that these postings do not provide a basis for overturning the 25
election. As a preliminary matter, Charging Party adduced no evidence that Respondent—as
opposed to anti-union employees—were in fact responsible for the non-Board postings. Even
assuming this to be the case, however, nothing contained any coercive statements or otherwise
strayed from what the Board considers “legitimate propaganda.” Nash-Finch Co., 117 NLRB
808, 810–811 (1957). Moreover, based on the documents’ placement and appearance, I 30
conclude that employees would not likely have been confused as to whether they contained
views endorsed or approved by the Board. See id.
Based on the foregoing, I recommend that Objection 6 be overruled.
35
d. Alleged failure to distribute Board Notice of Election [Objection 7]
The stipulation further provides that Respondent “distribute the Notice of Election
electronically, if the Employer customarily communicates with employees in the unit
electronically.” Consistent with the Board’s Rules, the stipulation specifically provides that, 40
“[f]ailure to post or distribute the Notice of Election as required shall be grounds for setting aside
the election whenever proper and timely objections are filed.” Id.; see Section 102.67(k). The
Board’s Notice of Election “contains important information with respect to employee rights
under the Act” which must be conveyed to employees such that they are adequately apprised of
their rights in advance of the election. Smith’s Food & Drug, Inc., 295 NLRB 983, 983 fn. 45
1(1989). Notably, the notice in this case served an important additional purpose in this case:
alerting employees that there were individuals (i.e., dischargees) who had the right to vote
JD(SF)–25–19
67
subject to challenge, because their eligibility had not yet been determined. (See Rules Sec.
102.67(b).)
Since at least early 2017, Respondent have maintained an email system, whereby employees
are issued email addresses with the “@davidsaxe.com” domain name. Management uses these 5
email addresses to inform employees of their weekly schedule, as well as to provide other work-
related announcements, and maintains a policy requiring employees to check their company
email accounts as a condition of employment. Employees Prieto, Glen and Urbanski each
testified that, although they regularly receive work-related communications from management
via their work (i.e. David Saxe-issued) email addresses, they did not receive a copy of the Notice 10
of Election via this means. (Tr. 698–699, 1300, 1920, 1961, 2334–2335; R Exh. 62(a).)
Respondent presented no evidence to the contrary, nor did any eligible voter testify that they did
receive an emailed copy of the notice. Nor did Respondent offer any valid reason for failing to
email the Notice of Election to eligible voters. As such, I find Objection 7 to have merit and
therefore sustain it.15
6. Changes to employee schedules [Objections 8 and 12]
As an additional basis for overturning the election results, Charging Party claims that, on the
April 15 and 17 (respectively), DeStefano manipulated employees’ schedules in order to make 20
them available for captive-audience meetings and for Respondent’s bus transport to the polls.
With respect to the former objection, DeStefano herself admitted that she changed certain
employees’ schedules (those scheduled to work Mondays) to ensure that every employee
attended one of Respondent’s meetings; this was corroborated by Tupy and Glen, whose
schedules were changed. The testimony regarding scheduling around the election transportation 25
is far more limited, essentially consisting of Prieto’s conjecture that DeStefano moved up his
start time by 30 minutes on the day of the election to ensure that he would be able to board the
bus on time. (Tr. 705, 1959–1960.)
While this conduct occurred undeniably occurred close to the election itself, I find that it fails 30
to rise to the level of conduct that warrants overturning the election. The party challenging an
election has the “burden of showing by specific evidence at the hearing that 1) improprieties
occurred, and 2) that they interfered with the employees’ exercise of free choice to such an
extent materially to have affected the election results.” Bell Foundry Co. v. NLRB, 827 F.2d
1340, 1343 (9th Cir. 1987) (citing NLRB v. Krafcor Corp., 712 F.2d 1268 (8th Cir. 1983)); see 35
also NLRB v. Mattison Machine Works, 365 U.S. 123 (1961) (burden of proof upon objecting
party to show prejudice to the fairness of the election).
As Respondent notes, it is well settled that an employer does not engage in objectionable
conduct by requiring employees to attend captive-audience meetings. See R. Br. at 194 (citing 40
Fontaine Converting Works, Inc., 77 NLRB 1386, 1387 (1948). Charging Party adduced
evidence of only two employees’ schedules being affected by DeStefano’s attempt to
accommodate the meetings, and it appears that was because their regularly schedules would not
have permitted them to attend a meeting. Nor is there any evidence that they suffered any
economic deprivation as a result of the schedule changes. I find this conduct to be de minimis 45
and no basis for overturning the election results. Absent shutting down its operations, an
employer attempting to present its employees with its view on an upcoming election will by
JD(SF)–25–19
68
necessity be forced to schedule meetings outside of some employees’ working hours. Indeed, the
alternative would have been for Respondent to disallow certain employees from attending any
meeting or single them out for a meeting separate from their coworkers, arguably a more
coercive action. Likewise, I find that changing the reporting time of openly pro-union Prieto by
30 minutes thereby making it easier for him to vote would simply not have a tendency to 5
interfere with his freedom of choice in a manner that could have affected the election’s outcome.
Caron International, 246 NLRB 1120 (1979) (even if conduct is violative of the Act, under the
circumstances it may be of such a de minimis nature as to not affect the results of the election).
Accordingly, I find no merit to Charging Party’s Objections 8 and 12 and therefore 10
recommend that they be overruled.
7. Surveillance of union meetings [Objection 10]
Charging Party alleges that Respondent engaged in objectionable conduct by surveilling 15
union meetings. It is undisputed that Respondent maintain numerous surveillance cameras
throughout its facilities, which are used to monitor employee performance and provide
supporting documentation for discipline. That said, there is no record evidence of any kind to
support a finding that Respondent actually captured video and/or audio footage of any “union
meeting” as alleged. Nonetheless, citing no authority, the Union urges me to find that the very 20
extent of Respondent’s surveillance constitutes “sufficient evidence that [Respondent were]
watching employees who spent time discussing the union while at work.” (CP Br. at 25.) This I
decline to do.
As the Supreme Court has cautioned the Board, its presumptions of fact “must rest on a 25
sound factual connection between the proved and inferred facts.” NLRB v. Baptist Hospital, Inc.,
442 U.S. 773, 787 (1979) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 804–805
(1945)). The Court described this connection in NLRB v. Curtin Matheson Scientific, Inc., 494
U.S. 775 (1990), as one in which “proof of one fact renders the existence of another fact ‘so
probable that it is sensible and timesaving to assume the truth of [the inferred] fact … until the 30
adversary disproves it.”’ Id. at 788–789 (quoting E. Cleary, ed., McCormick on Evidence § 343,
at 969 (3d ed. 1984)). The Union asks me to presume that “union meetings” were surveilled via
Respondent’s camera system, but there is simply no evidence that any such meetings were held
within view of such cameras. The burden was on Charging Party, presumably armed with
knowledge of specific instances of such union meetings, to offer such evidence as the basis for 35
any presumption of fact that they were surveilled and/or recorded. Absent such evidence (direct
proof of which would appear to have been easy to obtain), I am unwilling to accept the Union’s
contention that this objection warrants setting aside the election.
Accordingly, I find no merit to Charging Party’s Objection 10 and therefore recommend that 40
it be overruled.
ADVERSE ACTIONS FOLLOWING THE ELECTION
Following the election, Saxe remained hyper-vigilant about employee organizing; according 45
to DeStefano, he believed that “almost anything could be connected to union activity.” (Tr. 679–
680.) The General Counsel alleges that this animus towards the Union resulted in Respondent’s
JD(SF)–25–19
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retaliating against pro-union employees Glen and Tupy, as well as election observer Urbanski.
Specifically, it is alleged that Respondent reduced Glen and Tupy’s hours, issued Tupy an
unwarranted discipline, denied Urbanski requested light duty after he suffered a work-related
injury and imposed more onerous and rigorous terms and conditions of employment on him
when he returned to full-time status, in each case in violation of Section 8(a)(3) of the Act.5
A. Reduction in Glen and Tupy’s Hours [Compl. ¶ 6(k), ¶ 6(o)]
1. Facts
10
Prior to June 1, audio techs Glen and lighting tech Tupy regularly reported for a 7:30 p.m.
“show call.” Tupy, who also works as a day-crew employee, often arrived even earlier to
perform repair and maintenance work unrelated to the evening’s production. He was granted
wide discretion in setting his own day-crew hours, and for this reason would generally ignore the
written schedule.61 Effective June 1, DeStefano moved up both men’s reporting time until 15
8 p.m. This left less time, before the audience door opened at 8:15 p.m., to run equipment
checks, update cues, make repairs, program and synchronize the lighting and audio systems and
run an 8 p.m. sound check with the show’s live band and performers. (Tr. 1759–1762, 1906–
1908)
20
When Glen questioned the new clock-in time on June 1, DeStefano stated quizzically,
“[t]here was a restructure and everyone is coming in at certain times now.” DeStefano claims
that she informed Tupy of his new show-call time on June 1, but he could not recall any such
conversation.62 Indeed, for a period of time following June 1, Tupy continued to clock-in for
performances at 7:30 p.m. (GC Exh. 72; Tr. 1806.) 25
2. Analysis
Reduction in an employees’ hours based on his union or protected concerted activities
violates the Act. See, e.g., Sysco Grand Rapids, LLC, 367 NLRB No. 111 (2019). Here, I find 30
that the General Counsel has established a prima facie case that the reduction in Tupy and Glen’s
hours was discriminatory.
Tupy had been an outspoken critic of the positions taken by Respondent’s “consultant” at a
captive audience meeting.63 Interestingly, he had also been recommended for discharge by 35
DeStefano back in March when she emailed Saxe about the other dischargees; it appears that he
was only spared because, by the time a replacement was found for him, Saxe had forbidden her
from undertaking any more discharges. (Tr. 466–467, 473–475; GC Exh. 31.) Glen, for his part,
was known to be romantically involved with union adherent and discriminatee Glick, whom

61 It appears that Tupy was afforded this flexibility in part to accommodate his need to take
intermittent leave for medical treatments. (Tr. 1796–1797, 1975–1797, 1806.)
62 I credit Tupy on this matter; he was cooperative and non-combative on cross examination
and had a very specific recollection of the only conversation he did have with DeStefano
concerned his day-crew work, not his reporting time for show calls. (Tr. 1808.)
63 See Prescott Industrial Products Co., 205 NLRB 51 (1973) (challenging management
representative’s statements at captive audience meeting constitutes protected conduct).
JD(SF)–25–19
70
Respondent discharged based on her organizing activity. Moreover, Saxe had exhibited animus
against both men on the eve of the election, when he told them that he knew he had “lost” their
votes. The timing of the reduction in hours—2 weeks following the election—further suggests a
discriminatory motive, as did DeStefano’s description of the change as a “restructure,” the same
lingo she repeatedly used to describe the purge of union adherents that had taken place in March 5
and April.
Based on this evidence of a prima facie violation, the burden shifts to Respondent to
demonstrate that it would have reduced Tupy and Glen’s hours even in the absence of their status
as union supporters. Respondent, relying on the testimony of DeStefano, failed to meet this 10
burden. Without providing any corroborating evidence, she claimed that Tupy and Glen had not
been singled out, but that she had “shifted” the show call time for a number of theater employees
(including main audio, lighting and spotlight operators) to 7:45 p.m. at the same time.
Respondent failed to present either testimonial or documentary evidence to corroborate this
claim. In her typical fashion, DeStefano offered a “bonus” rationale for having reducing Glen 15
and Tupy’s hours, citing a prior instances when Respondent ceased issuing work calls to theater
employees. Logically, however, this fails to explain moving up Glen and Tupy’s reporting time
for show calls. As such, I find that Respondent failed to adduce credible evidence to support its
Wright Line defense and therefore conclude that, by reducing Glen and Tupy’s hours in June,
Respondent violated Sections 8(a)(3) of the Act, as alleged.20
B. Tupy’s Discipline [Compl. ¶ 6(n)]
1. Facts
25
As noted, Tupy was not notified of the change to his work schedule and, after June 1,
continued to clock-in at 7:30 p.m. Approximately 3 weeks later, DeStefano began documenting
Tupy’s early arrivals. On June 18, DeStefano sent Carrigan an email captioned, “For the record
for [Tupy],” stating that she had addressed the issue three times previously with him. (Tupy,
however, credibly denied ever having such conversations). DeStefano then noted that she was 30
waiting on Saxe to provide “specific wording” for a “write up” she planned to issue Tupy. On
June 19, Carrigan approved a PAF with a June 1 effective date indicating that DeStefano had
issued him a written warning on that date for clocking in early. As Carrigan admitted, however,
this document was never provided to Tupy. (Tr. 1794–1796, 1799–1800.)
35
On June 20, DeStefano sent Tupy a text message stating that his start time had been changed
to 8 p.m. as of June 1, and that he would be receiving discipline for coming in early. Tupy
protested that this would not allow him sufficient time to prepare for the show; after a back-and-
forth exchange during which Tupy explained the technical aspects of preparing for the show,
DeStefano ultimately agreed to move his start time to 7:45 p.m. Nonetheless, Tupy was issued a 40
“written warning” PAF later that night for failing to adhere to his now-defunct 8 p.m. start time.
This warning made no mention of the 7:45 p.m. accord. (GC Exh. 47, 48, 50, 70; R. Exhs. 59,
60; Tr. 608–609, 1764–1765, 1803, 1806, 2738.)
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71
2. Analysis
As discussed, infra, the General Counsel has established that Tupy was vocally pro-union at
the meeting held by Respondent’s “consultant” and that Saxe openly accused him of being a
union supporter later that day. This evidence, plus the timing of his discipline—approximately a 5
month following the election—suggest animus, establishing the General Counsel’s prima facie
case.64 The burden shifts, therefore, to Respondent to demonstrate that Tupy would have been
disciplined in the absence of his pro-union stance. This I find Respondent failed to do.
As a basic matter, Respondent’s conduct was inconsistent with its claimed concern over 10
Tupy adherence to his new start time. An employer so motivated would not “lay in wait” for
three weeks while Tupy—who had followed his posted schedule—continued to show up early, or
pad his personnel file with a backdated written warning that was never presented to him.
Respondent’s conduct on the whole leads me to believe that DeStefano deliberately set up Tupy
for discipline in retaliation for his outspoken support for the Union.15
C. Allegations Surrounding Urbanski’s Return from Medical Leave [Compl. ¶ 6(l), ¶ 6(m)]
1. Facts
20
Current employee Urbanski, who served as the Union’s observer during the election, works
as a day-crew employee responsible for repairing and maintaining lighting equipment, as well as
performing other cleaning and maintenance work. The General Counsel alleges that, between
June 4 and June 21, Respondent refused and failed to offer Urbanski the opportunity to work on
light duty. It is further alleged that, between July 8 through July 22, Respondent imposed more 25
onerous and rigorous terms and conditions of employment on Urbanski by subjecting him to
closer supervision, requiring him to obtain written consent before performing tasks and assigning
him more arduous work assignments.
Hired in late 2016, Urbanski is a relatively long-term employee. He was afforded a 30
significant degree of independence in conducting his work; typically, he would report to work,
review the show reports65 for the lighting section and prioritize what needed to be done first
without consulting any supervisor. He also directly responded to repair requests from coworkers
and performers and was not required to get permission to do so, unless the repair required an
outlay of money for materials. His schedule was Sunday through Thursday, 9:15 a.m. to 5:45 35
p.m. (Tr. 569, 2288, 2300–2301, 2324, 2338–2339, 2345–2346; R. Exh. 71.)

64 Considering the overwhelming evidence of antiunion animus throughout the record, I do
not agree with Respondent that Tupy’s known ties to the Union at the time of his hire establishes
a lack of animus against him, especially considering that he significantly ramped-up his pro-
union campaigning shortly before the election. See Tradesman International, Inc., 351 NLRB
579, 581 fn. 14 (2007) (citation omitted).
65 A “show report” is generated for each show to document problems occurring during the
production, as well as to identify equipment (i.e., such as lighting equipment) in need of repair.
(Tr. 964–967, 2761.)
JD(SF)–25–19
72
As noted, supra, Urbanski was the first of Respondent’s employees to participate in the
Winter/Spring organizing campaign and was known to be close with Devito; in February,
DeStefano noticed that Urbanski’s “attitude” had “dropped way low” following Devito’s
departure. That same month, Urbanski recruited a number of his coworkers to join the
organizing cause and was active in the Facebook group chat access by Mecca. Most notably, 5
Urbanski served as the Union’s election observer on May 17, a fact of which Saxe was
admittedly aware. (Tr. 1024, 2261; GC Exh. 84.)
a. Urbanski’s medical leave and light duty request
10
In early April, Urbanski injured his hand at work, and he originally attempted to work light
duty. Saxe initially discouraged Urbanski from performing light duty, but then agreed to allow
him to perform some inventory work at Respondent’s corporate warehouse. His schedule shifted
somewhat; during this period, he worked 9 a.m. to 5:30 p.m., Monday through Friday. In the
course of training for his light duty, Saxe mentioned that he knew that Urbanski was roommates 15
with former manager Devito, but that he wasn’t going to hold it against him.66 Around April 20,
Urbanski’s effort at light duty ultimately failed, with Saxe criticizing his work output and
Urbanski opting to return to work after having surgery later that month. (Tr. 2270–2271, 2273,
2284, 2289.)
20
As noted, Urbanski served as the Union’s election observer on May 17. Saxe admitted that
he learned of this fact shortly after the election (between 1 day and a week). Both before and
after the election, Urbanski stayed in communication with Carrigan, who repeatedly offered him
light duty, which he consistently declined. On May 24, Urbanski emailed Carrigan stating that
he expected to be released to return to work on June 4, at which time he would be able to use his 25
left hand “somewhat.” Until then, he said, “I’m going to choose to deny light duty until I can
return to work on June 4.” On June 1, Urbanski emailed Carrigan:
Do you have the new modified worksheet I can sign so I can return
to the theater on Monday [June 4]?30
As Carrigan explained, the “modified worksheet” to which he referred was the paperwork
(alternately referred to as a “light duty form” or “modified duty form”) that she had previously
told him was required for his return to work. Carrigan admittedly did not respond to Urbanski’s
June 1 email or otherwise provide him with this form; she failed at hearing to explain why this 35
was the case. (GC Exhs. 89 at 1, 6; Tr. 233, 249, 2216, 2325–2326, 2348.)
On June 19, Carrigan emailed Urbanski, claiming that she was unclear as to whether he
intended to work light duty or delay his return to work until his restrictions were cleared. She
then set forth a lengthy, detailed recitation of his failed prior attempt to return to work and 40
accused him of refusing to accept light duty. She then stated that Respondent had light duty
work available to him and that she hoped to see him the following day at 8:30 a.m. (GC Exhs.
90, 91.)

66 I credit Urbanski as to this conversation; a current employee at the time he testified, he
listened carefully to questions and testified consistently as to Saxe’s remark both on direct and
on cross-examination. Saxe, for his part, did not deny making the statement.
JD(SF)–25–19
73
b. Urbanski’s return to work
Urbanski did not accept Carrigan’s offer to work light duty beginning on June 20; 2 days
later, however, Carrigan emailed him that she had received a note from his doctor releasing him 5
to full duty as of June 21. She instructed him to report to work the following Monday, June 25.
(GC Exs. 90, 91.)
For approximately a week following Carrigan’s offer of full duty, she and Urbanski debated
the terms of his return to work, with Carrigan insisting that he return to the site of his prior light-10
duty assignment (i.e., the corporate warehouse) and Urbanski protesting that this constituted
“retaliation” against him. Around the same time, Saxe and DeStefano discussed Urbanski via
email; referring to him (along with Tupy and Petty) as a “trouble maker employee,” Saxe told
DeStefano that he planned to have an “intervention” with Urbanski upon his return and issue him
a “final verbal warning” for his “blatant insubordination.” (GC Exhs. 90–92.) At hearing, 15
neither DeStefano nor Saxe explained what this insubordination entailed.
Ultimately, on June 27, Urbanski won the debate with Carrigan and ended up returning to his
original schedule and position at the theaters. Urbanski ended up returning to work on July 8,
back at the theaters on full duty. It is undisputed that he was no longer reporting to his prior 20
manager, who had stopped working for Respondent during Urbanski’s leave and not yet been
replaced. DeStefano, who was traveling out of town, sent Urbanski an email the night before his
return, detailing the tasks he was to work on, including painting props and sets, cleaning tech
booths and installing fans. Notably, these were tasks similar to those he had performed prior to
his leave. Throughout the day, Urbanski kept DeStefano apprised of his progress throughout the 25
day. (Tr. 564–565, 2221–2222, 2345, 2881–2882; GC Exhs. 42, 43, 93, 94.)
After completing his shift, Urbanski received an email from Saxe, stating that Urbanski
would be reporting directly to him (Saxe). He then stated:
30
Remember, do not work on anything other than what [DeStefano]
or I assigned to you in writing. If anyone else asks you to handle
something, he must get it approved first by either of us in writing.67
Urbanski responded that he had not been able to finish his assigned tasks and then questioned 35
why he had been assigned certain tasks.68 For the next 3 days, he and Saxe exchanged a flurry of
emails in which Saxe continuously demanded that Urbanski update him on the progress of each
of the tasks he had been assigned. According to Urbanski, this pattern continued for 2 weeks; his
account was corroborated by the documentary evidence, which included additional emails from

67 Saxe claimed that he imposed this “written approval” requirement only after warning
Urbanski to perform only his assigned tasks. This is belied by Respondent’s own records, which
demonstrate that Saxe’s directive was in fact his first communication with Urbanski upon the
latter’s return from leave. (See Tr. 244–245; GC Exh. 44 at 3.)
68 There is no indication that the tasks Urbanski was assigned upon his return from leave
were more physically demanding than those he had previously performed. (Tr. 2324, 2339–
2340.)
JD(SF)–25–19
74
DeStefano during this period, detailing the tasks to which he was assigned. After that period,
Urbanski reverted to his pre-medical leave practice of consulting the show notes for the lighting
section and prioritizing his own work. (GC Exhs. 42, 44, 45, 100, 101, 570–571; Tr. 2325.)
2. Analysis5
According to the General Counsel, by refusing to provide Urbanski his requested “light duty
form,” Carrigan in effect denied him light duty between June 1 (when he requested it) and June
21. I agree but find that the period of denial was actually June 4 (when he made himself
available for light duty) to June 20 (when Carrigan accepted his light-duty offer). The General 10
Counsel also alleges that Respondent discriminated against Urbanski upon his return to work by
subjecting him to closer supervision, requiring him to obtain written consent before performing
tasks and assigning him more arduous work assignments. I agree with the first two, but not the
third, of these allegations.
15
a. Denial of light duty
Urbanski’s extensive union activity, culminating in his appearance as the Union’s election
observer, is well documented throughout the record. Saxe’s remark to about not holding
Urbanski’s ties to Devito against him, coupled with his characterization of him as a “trouble 20
maker employee” strongly suggests that he was well aware, and took a dim view of, Urbanski’s
association with the Union. As noted, supra, an employer’s reference to “trouble” against the
backdrop of union organizing frequently signals animus towards that activity, and “trouble
employee” may function as a veiled reference for union supporter. See, e.g., Mardi Gras
Casino, 359 NLRB 895 (2013) (employee “getting herself into trouble” veiled reference to her 25
union activity), reaffd. 361 NLRB 679 (2014); Smithfield Foods, Inc., 347 NLRB 1266, 1274
(2006) (“problem person” euphemism for employee’s union activity); Diversified Bank
Installations, Inc., 324 NLRB 457, 471–472 (1997) (employee causing “trouble” euphemism for
union activity). Saxe’s animus against Urbanski is also evident from his initial attempt to
discourage him from working light duty and plan to subject him to a disciplinary “intervention” 30
upon his eventual return to work.69
The General Counsel has established an impressive prima facie case regarding Urbanski. As
such, it falls to Respondent to explain why, when he offered to return to work, Carrigan abruptly
broke off communication, failing to provide him with the “light duty form” he clearly believed 35
was necessary for his return. At hearing, however, Respondent offered no plausible explanation
for Carrigan’s inaction, or for her self-serving email 3 weeks later, in which she attempted to
portray Urbanski as having refused the very light duty he had plainly requested. The timing of
Carrigan’s conduct (a mere 2 weeks following Urbanski’s serving as the Union’s election
observer), combined with Respondent’s total failure to explain her actions, suggest that, but for 40
his status as a union supporter, Urbanski would not have been denied light duty.

69 Respondent suggests that Carrigan’s ongoing engagement with Urbanski regarding his
return to work demonstrates Respondent’s lack of animus towards him. I cannot agree. That
Carrigan at least initially kept in touch with a workers’ compensation-injured employee to
determine whether and when he was able to return to work does little to overcome the significant
evidence of animus as expressed by Saxe.
JD(SF)–25–19
75
Accordingly, I find that, by denying Urbanski light duty between June 4 and June 20,
Respondent violated Section 8(a)(3) and (1) of the Act.
b. Urbanski’s working conditions upon return to work5
The General Counsel alleges that Respondent discriminated against Urbanski upon his return
to work by, inter alia, subjecting him to closer supervision and requiring him to obtain written
consent from management before performing any tasks not already in writing. In particular, it is
argued, while he had previously been granted wide leeway in determining his own assignments 10
based on show reports, Saxe and DeStefano more closely supervised him by repeatedly checking
in with him and demanding updates on his progress throughout the day. I agree.
As the General Counsel notes, the Board will find an adverse action where employees are
subject to closer supervision based on their union activity. See Consolidated Bus Transit, Inc., 15
350 NLRB 1064, 1085–1086 (2007); Riley-Beaird, Inc., 259 NLRB 1339, 1349 (1982). In this
case, as discussed, the General Counsel adduced significant evidence of animus by Saxe against
“trouble maker”/known election observer Urbanski, including his plan to have a disciplinary
intervention with him upon his return to work based on unspecified “insubordination.” While it
is understandable that, initially, Saxe and DeStefano may have unintentionally double-teamed 20
Urbanski based on DeStefano being out of town, Saxe continued for days to harangue him with
update requests even once this issue had been resolved and, by his tone and intensity, appeared
intent on goading him into some actual insubordination. In addition, because Urbanski had
previously been permitted to assist his coworkers with their repair requests, curtailing this
freedom also served to make an open example of him as the Union’s election observer. As such, 25
I find that Respondent’s treatment of Urbanski upon his return to work amounted to a
substantive, adverse change to his working conditions for which Respondent must provide a non-
pretextual rationale.
This Respondent failed to do. There was no credible evidence of a recent downturn in 30
Urbanski’s performance that would warrant closer scrutiny of his work; indeed, except for his
appearance as the Union’s election observer, he had been absent from work for weeks. While a
degree of monitoring a recently returned-to-work employee would appear legitimate, Saxe
clearly went overboard; indeed, the sheer volume of emails between the two suggests that, if
anything, Saxe’s incessant demands for updates and explanations actually hindered Urbanski in 35
completing his work. By its post-hearing brief, Respondent suggests that imposing increased
monitoring and a “written permission” requirement on Urbanski was the result of changes to
Respondent’s business structure that had occurred during his absence, such as management
turnover and the elimination of other day-crew positions. On its face, however, this fails to
explain Respondent’s conduct; assuming that Urbanski was expected to perform the entire day-40
crew operation, requiring him to obtain written permission for specific tasks and constantly
haranguing him with requests for updates hardly seems consistent with allowing him to focus on
his work. Instead, Saxe, who had determined to conduct a disciplinary “intervention” with
Urbanski, appears to have subject him to a gratuitous hazing aimed to aggravate him enough to
either quit or push back hard enough to justify such an action. 45
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For these reasons, I reject Respondent’s asserted Wright Line defense and find instead that,
but for Urbanski’s union conduct, he would not have been subjected to increased supervision or
required to receive written permission in order to perform tasks.70
5
THE WAREHOUSE UNIT ALLEGATIONS
As discussed, the administrative and supervisory portion of Respondent’s operation is housed
at a building known as the “Oquendo facility,” which is located approximately 15 minutes away
from the theaters. In April 2018, Scott Leigh (Leigh), who worked in the warehouse at the 10
Oquendo facility, solicited signatures from several of his coworkers at the facility, in support of
the Union. According to the General Counsel, as of April 11, Leigh successfully solicited
authorization cards from a majority of an appropriate unit of warehouse workers. It is further
alleged that, 2 days later, Saxe unlawfully interrogated Leigh about his union activity and created
the impression that his union activity was under surveillance. A week later, Leigh was 15
discharged. (Tr. 2187, 3647.)
No petition for representation of the warehouse employees was filed, but the General
Counsel alleges that, based on Respondent’s unfair labor practices, the appropriate remedy for
Respondent’s conduct is the issuance of a Gissel bargaining order with respect to those 20
employees. The purpose of a remedial bargaining order is “to remedy past election damage
[and] deter future misconduct.” NLRB v. Gissel Packing Co., 395 U.S. 575, 612 (1969). The
Supreme Court has sanctioned the issuance of such a bargaining order “where an employer has
committed independent unfair labor practices which have made the holding of a fair election
unlikely or which have in fact undermined the union’s majority. . .” Gissel, 395 U.S. at 610. 25
In the Gissel case, the Supreme Court approved the issuance of a bargaining order in two
categories of cases: “exceptional cases marked by outrageous and pervasive unfair labor
practices” (“Category I”) and “less extraordinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine majority strength and impede the election 30
processes” (“Category II”). 395 U.S. 575, 613–614 (1969) (internal quotations omitted). In the
instant case, the General Counsel contends that Respondent’s violations fell within Category II.
In such a case, a bargaining order may issue only if: (1) a majority of employees have shown
support for the union; (2) the employer’s unfair labor practices undermined the majority strength
of the union; and (3) the “possibility of erasing the effects of past practices and of ensuring a fair 35
election (or a fair rerun) by the use of traditional remedies, though present, is slight and [ ]
employee sentiment once expressed through cards would, on balance, be better protected by a
bargaining order.” Id. at 614–615.

Respondent argues that that the General Counsel has failed to establish that Local 720 40
enjoyed a majority in an appropriate unit. Respondent further argues that, to the extent it
committed any unfair labor practices, they have not been shown to have undermined the Union’s

70 Contrary to the General Counsel’s contention, I do not find that, upon his return to work,
Urbanski was assigned more difficult or physically arduous tasks than he had previously
performed, or that he was assigned a higher volume of work. I therefore recommend dismissal
of this specific allegation (set forth at par. 6(m)(iii) of the complaint).
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majority support and in any event were of such a nature that their coercive effects can be
eliminated by the application of traditional remedies, rendering a bargaining order inappropriate.
Specifically, it is contended that there is insufficient evidence that Respondent’s unfair labor
practices were aimed at, or disseminated among, a sufficient number of employees to preclude a
fair election.5
A. The Warehouse Operation and the Alleged Gissel Unit
In support of its claim that the Union had at one time in the warehouse tech unit, the General
Counsel relies on evidenced adduced at trial that five warehouse techs in a nine-person unit 10
signed union authorization cards between April 10–11. Respondent asserts that the smallest
appropriate unit must include additional positions (runner, electrician, and porter), thereby
destroying the Union’s card majority. Respondent alternately argues that the only appropriate
unit in which a bargaining order may issue is the unit of theater employees stipulated to by the
parties in Case 28–RC–219130.15
1. Facts
a. The “warehouse technician” position
20
As noted, employees working in Respondent’s warehouse are generally responsible for
fabricating, building, repairing, and upkeeping props and set pieces for the theaters’ shows.
They also perform general facilities maintenance work, including the cleaning and upkeep of the
Oquendo facility. In addition, they have also been responsible for remodeling the Oquendo
facility, including building out offices and fabricating office furniture. Between late 2017 and 25
early 2018, they also built a stage at the Oquendo facility, which is rented out for rehearsals and
auditions. They use various tools and equipment, including saws, power tools, forklifts, and a
scissor lift. (Tr. 1597, 1625–1626, 1642–1643, 2177–2178, 2185, 2188–2189, 3798.)
As of April 11 (the date on which the Union is alleged to have achieved majority status30
among the warehouse employees), there were nine individuals working in this capacity: Leigh,
David Montelongo (Montelongo), Marck Capella (Capella), Blake Scott (Scott), Lamar Rayner
(Rayner), Brandon Duran (Duran), Dwuane Thomas (Thomas), Kendrick Dotson (Dotson), and
Mario Stumpf (Stumpf) (the warehouse technicians). Outside of their general job duties, certain
of the warehouse technicians are assigned more specialized tasks. Leigh, for example, spends 35
the majority of his time welding. Scott is chiefly responsible for performing electrical work.71
Montelongo and Capella work mainly on carpentry projects. (Tr. 1596–1597, 1615, 1617, 2176–
2177, 2255, 2258, 3240, 3801, 3907–3908.)
During April 2018, the warehouse technicians were supervised by Hunt, received their daily 40
assignments via a “SmartSheet” (a computer-generated task list) and were expected to attend a

71 I give little weight to Leigh’s testimony that, during meetings with the warehouse
employees, Saxe indicated that Scott was not to perform any warehouse work other than
electrical work. This sheds little light on Scott’s actual job duties, of which Leigh was
admittedly unaware. According to Carrigan, Scott, in addition to his electrical work, performed
work similar to that performed by the other warehouse techs. (Tr. 2258–2259, 3828.)
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daily morning briefing with Hunt to review their assignments and progress. During 2018, the
warehouse techs were all paid by the hour (between $13 and $20), were eligible for the same
benefits and worked the same schedule. (Tr. 1598, 1627–1628, 1630–1631, 2174, 2184–2185,
2257–2258, 3562–3566, 3830.)
5
b. Runners
The “runner” position was held by Dominic Antonelli (Antonelli) during April 2018. Unlike
the warehouse techs, Antonelli spent approximately 75 percent of his time on the road, picking up
and delivering (via a company-provided truck or van) various items to either the theaters and the 10
Oquendo Facility. In this capacity, he, like the warehouse techs, reported to Hunt and generally
received his assignments via SmartSheets. He spent the bulk of his remaining time on an
entirely different task, editing videos in an office on the second floor of the Oquendo facility for
Respondent’s marketing department, as overseen by an individual in that department. (Tr. 3545,
3589, 3802–3803, 3822, 3860–3863, 3866, 3869–3870, 3876–3877, 3880–3881, 3885–3886.)15
Antonelli’s main contact with the warehouse techs occurred when he delivered supplies and
other items to the warehouse. This contact was very limited; typically, he remained in his
vehicle while the warehouse techs unloaded his truck. Antonelli also testified that, on occasion,
he would provide an “extra set of hands” to assist the warehouse techs in their work, but, unlike 20
the techs, he did not operate saws, power tools, forklifts or the scissor lift used by the techs.
Antonelli earned approximately $13.50 per hour and, like the warehouse techs, was not required
to wear a uniform. (Tr. 3876, 3928–3929.)
Rather than being integrated into any particular project or day’s work performed by the 25
warehouse techs, Antonelli’s assistance was typically ad hoc (for example, handing a tool to a
warehouse tech working up on a platform) and not the result of an officially assignment. He
played no role in the warehouse tech’s larger projects, such as building the Oquendo facility
stage or the renovating of its facility’s office space. He occasionally stocked vending machines
(as did at least one of the warehouse techs) but did not assist with cleaning at the warehouse. 30
(Tr. 3821–3823, 3868, 3873, 3883, 3927.)
c. Porters
As of April 11, Respondent employed between six and nine individuals with the job title, 35
“porter.” Porters do not work at the Oquendo facility, but rather at Respondent’s theaters, where
they perform custodial duties, such as cleaning, sweeping, and vacuuming. They may also act as
ushers and bar backs, when necessary. Porters are supervised by Saxe and the theater managers
and work shifts different from those of the warehouse techs. They earn between $10 and $17 per
hour. Unlike the warehouse techs, porters have contact with the public, may work part time and 40
are required to wear uniforms. (Tr. 3554–3555, 3561–3563, 3564, 3566–3567, 3570, 3647–
3648, 3798–3799.)
There is no indication that porters and warehouse technicians work together or have regular
contact. Porters do not share equipment or cleaning supplies with the warehouse technicians, the 45
only exception being that the two groups of employees do share the use of a large upholstery
cleaning machine that is transferred between their work locations, as needed. (Tr. 3649–3650.)
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2. Analysis
As noted, the General Counsel must show that, as of April 11, the Union had majority
support in an appropriate unit. Respondent contends that the smallest appropriate unit on April 5
11 must have also included electrician Scott, runner Antonelli and a number of porters, thereby
destroying the Union’s majority support. For the reasons set forth below, I agree with
Respondent that Scott must be included in any appropriate unit that existed as of April 11, but
that the runner (Antonelli) and porter positions are properly excluded.72
10
a. The legal standard
In a case such as this, in which an employer argues that the smallest appropriate unit includes
individuals not included in the General Counsel’s alleged unit, the Board applies a multi-factor
test that assesses:15
whether the employees are organized into a separate department;
have distinct skills and training; have distinct job functions and
perform distinct work, including inquiry into the amount and type
of job overlap between classifications; are functionally integrated 20
with the Employer’s other employees; have frequent contact with
other employees; interchange with other employees; have distinct
terms and conditions of employment; and are separately
supervised.
25
PCC Structurals, Inc., 365 NLRB No. 160, slip op. at 6 (2017) (citing United Operations, Inc.,
338 NLRB 123 (2002)).
b. Evaluation of specific factors
30
Separate department/separate supervision: The porters are clearly organized into a separate
department and reported not to Hunt, but to Saxe and the theater managers, arguing against their
inclusion in the unit. Scott, by contrast, clearly worked in the same department as the warehouse
employees and, like them, reported to Hunt, which argues for his inclusion. Antonelli chiefly
worked in the same department as the warehouse employees but was supervised 25 percent of 35
the time by a member of Respondent’s marketing department, rendering this factor neutral as to
him.
Skills and training/job functions and work: During the vast majority of the time, the
warehouse techs, the runner and porters performed very different types of work, arguing for a 40
warehouse tech-only unit. It is clear that the primary function of the warehouse techs remained
at all times the performance of construction and maintenance work in the warehouse. According

72 Because, for purposes of a Gissel bargaining order remedy, the General Counsel must
demonstrate majority status in an appropriate unit as of April 11, I apply these standards to the
makeup of Respondent’s work force as of that date.
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to Carrigan’s unrebutted testimony, these tasks were also regularly performed by Scott, despite
his “electrician” moniker. The incidence of job overlap between the warehouse techs and the
runner, who spent the majority of his time driving a company-provided vehicle making pickups
and deliveries, was negligible. While both warehouse techs and porters appear to have
performed cleaning tasks, this appears to be the only type of work they had in common. There is 5
scant record evidence of any specific skills or training required for warehouse techs, runners or
porters, rendering this factor largely neutral.
Functional integration: There is no significant functional integration between the warehouse
techs and the porters, who work at the theaters on a completely different schedule. Based on 10
Carrigan’s testimony, however, there was significant functional integration between the
warehouse techs and Scott, who either performed warehouse tech duties or electrical work that
was connected to and essential to the building projects undertaken by the warehouse techs.
There is some evidence of functional integration of the runner position, in that Antonelli
regularly delivered materials and supplies to the warehouse techs. Overall this factor weighs in 15
favor of including Scott and excluding the non-warehouse tech positions.
Other contact: The warehouse techs had regular, work-related contact with each other. They
attended morning meetings, which were also attended by Scott, but not the porters or the runner.
There is no further evidence of contact between the warehouse techs and the porters. The 20
warehouse techs have occasion to observe the runner when he delivers or picks up items from the
warehouse, but there is no evidence that this contact extends beyond pleasantries. Over all, this
factor supports a warehouse tech-only unit.
Interchange: There is no evidence of interchange (i.e., either temporary or permanent 25
transfers) between the warehouse techs, the runner position or the porters during the relevant
time period, arguing for the exclusion of non-warehouse tech positions.
Terms and conditions of employment: The warehouse techs share personnel policies and
employee benefit programs with porters and the runner. Warehouse techs and porters earn a 30
similar range of hourly pay, while the runner position pays significantly less. Furthermore, it is
uncontroverted that the warehouse techs (and Scott) attended regular, morning meetings with
their supervisor, at which time they received their work assignments. No porter or runner was
required to attend similar meetings. Overall, this factor weighs, albeit slightly, in favor of
including Scott and excluding the non-warehouse tech positions.35
c. Analysis
As described above, the substantial majority of factors supports a finding that the warehouse
techs (including Scott) share a community of interest with each other that is distinct from the 40
interests of other employees, including the porters and runner. As such, I find that the
appropriate unit on April 11 included Leigh, Montelongo, Capella, Scott, Rayner, Duran,
Thomas, Dotson, and Stumpf.
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d. Respondent’s remaining arguments regarding the appropriate unit lack merit
As noted, Respondent argues that the only appropriate unit in which a bargaining order may
issue is the unit of theater employees stipulated to by the parties in Case 28–RC–219130, and
that the General Counsel is effectively estopped from seeking such an order with respect to the 5
warehouse techs. The cases cited by Respondent, however, stand for the proposition that a party
will be bound to the terms of an unambiguous unit description contained within a stipulated
election agreement insofar as that unit is concerned. They do not in any way limit the General
Counsel from alleging additional units for the purpose of seeking Gissel relief. Put differently,
Respondent would have me find that election stipulations are not only generally binding as to 10
unit composition, but rather that they present a one-time opportunity for the parties to agree on a
unit (or units) of employees appropriate for representation. This is simply not the case.
Accordingly, I reject this as a rationale for refusing to recommend a bargaining order.
Respondent also appears to argue that the General Counsel’s request for a Gissel remedy for 15
the warehouse techs is somehow procedurally flawed. Citing no authority, Respondent argues
that, when the Region amended the complaint 7 days before the hearing to request this remedy, it
improperly failed to give “special notice to the parties” or seek my “permission” to do so. It is
well established that, prior to the opening of the record, the Region is not required to seek my
permission to amend the complaint for any reason and due process entitles Respondent to 14 20
days’ notice to answer. Accordingly, I find this argument by Respondent to lack merit.
B. Leigh’s Solicitation of Union Authorization Cards
I have found that, as of April 11, an appropriate unit of nine warehouse techs existed. 25
Accordingly, no bargaining order remedy may issue without a showing that, as of that date, at
least five of these individuals had expressed a desire for representation by the Union. As
discussed, infra, counsel for the General Counsel presented five signed authorization cards.
While Respondent does argue that the cards’ language is ambiguous as to the signatory’s
authorization, but rather contends that two of the five cards should be excluded for purposes of 30
determining the Union’s majority status, because they were obtained by misrepresentation. I
disagree.
1. Facts
35
Scott Leigh, who began working in Respondent’s warehouse in the spring of 2017, emerged
as a supporter of the Union around the very time that management learned about the theater
employees’ organizing campaign. During a work-related conversation in early March 7, Saxe
asked Leigh about his “involvement” with the Union. Leigh responded that he had “worked a
few gigs with them,” which he had enjoyed. Saxe then asked, “what are the benefits for us going 40
union?” Leigh responded that it would enable Saxe to obtain skilled labor through the Union’s
hiring hall on an as-needed basis, instead of taking on individual employees full time. (Tr.
1596, 1603–1604.)
Within the next week, prompted by Devito, Leigh spoke to various warehouse employees, 45
including Montelongo, about the Union; he used the same pitch with each of them, first asking
what they thought of unions in general and then explaining to them that, if employees working at
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the warehouse “went union,” they would be able to bargain with Respondent and have a say in
their working conditions. He also specifically said that there were training classes available if
they were interested. According to Leigh, each of the individuals he spoke with expressed their
willingness to sign a card for the Union. Between April 9 and 11, he solicited signatures from
warehouse employees Montelongo, Rayner, Duran, and Thomas, each of whom signed in his 5
presence. (Tr. 1606–1609; GC Exh. 65.)
Two of the card signers—current employees Montelongo and Thomas—testified, each
claiming that Leigh never mentioned that signing the card had anything to do with the Union.
According to Montelongo, Leigh initially asked whether he wanted to get some “special 10
training” to be certified to work a side job doing rigging, he said he was interested. Then, he
claimed, a couple of days later, Leigh “confronted” him while he was sitting in his car, presented
him with a card and said, “here you go. This is where you can sign up for the training.”
Montelongo then quickly signed the card (without reading it), and Leigh “grabbed it right away.”
Presented with his original, signed card, Montelongo claimed not to recognize it, while 15
admittedly recognizing the signature and the handwritten date on the card as his own.
Montelongo testified that the physical address, email address and telephone number listed on the
card were not his. I note, however, that the handwriting on these portions of the card appears
similar to the exemplar Montelongo provided at hearing. (Tr. 1598–1601, 3240, 3243–3245,
3247–3248, 3253–3255, 3267; ALJ Exh. 2.) 20
Leigh did not dispute Montelongo’s account for the most part, but as noted, testified that he
had previously pitched him on training as part of bringing the Union in to represent the
warehouse workers. I credit Leigh, whom I generally found to be a plain-spoken witness not
prone to embellishment, on this point.73 25
Thomas testified that he had only a single interaction with Leigh about signing the card;
according to him, Leigh simply said that he could get free welding training if he signed a card, to
which he immediately agreed, signing the card without reading it. By contrast, Leigh testified
that he specifically explained to Thomas that the purpose of the card was to bring the Union into 30
the warehouse operation and that this would result in training being made available. (Tr. 1602,
1607; 3333–3334, 3807–3808.) I credit Leigh, whose recollection was specific and unforced,
over Thomas, who recited his version in a hurried and over-rehearsed manner. Nor do I credit
Thomas’ testimony as to what happened after he signed his card. Essentially, he claimed to have
attempted to revoke his card after family members put pressure on him to do so. He was visibly 35
anxious to get to this part of his story, the details of which simply did not add up.74

73 Montelongo, as a current employee, was clearly uneasy testifying and so eager to distance
himself from association with the Union that he reflexively denied recognizing the card he
obviously signed. He also embellished his account in a manner to suggest that Leigh somehow
“strong armed” him into signing (by “confronting” him and then “grabbing” the signed card).
74 He claimed, for example, to have done an internet search that led him to a web page
showing the Union’s office information, including whether it was open, but then testified that he
did not call the number immediately because it was evening, and the office “probably” was
closed. (Tr. 3335–3340; 3346–3348, 3808.)
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2. Analysis
The Supreme Court in Gissel approved the Board’s Cumberland Shoe doctrine,75 finding that
employees will generally be held responsible for their acts and therefore bound by the clear,
unambiguous language of the card they sign. 395 U.S. at 606. An exception exists, however, 5
where that language is “deliberately and clearly cancelled by a union adherent with words
calculated to direct the signer to disregard and forget the language above the signature.” Id.
Demonstration of a qualifying misrepresentation must be established “on the basis of what the
employees were told, not on the basis of their subjective state of mind when they signed the
cards.” Aero Corp., 149 NLRB 1283, 1290 (1964). 10
An employer’s burden to prove such a “cancellation” is a steep one. Indeed, even where it is
undisputed that an employee did not read the card’s language, he will be bound by it unless the
employer offers clear and convincing evidence that the card solicitor expressly indicated that the
card “would be used only for a different, more limited, purpose than that stated on the card.” 15
Photo Drive Up, 267 NLRB 329, 364 (1983) (citing Gissel) (emphasis added). Thus, a
signatory’s unambiguous authorization will stand despite it having been solicited by a
representation that the employee’s signature will result in something different to its stated
purpose, as long as that different purpose is not presented as the sole purpose. Compare
Warehouse Groceries Mgmt., Inc., 254 NLRB 252, 254 (1981) (finding valid card solicited on 20
representation that “if a certain number of people signed the cards, the Union ‘would come in
and investigate and ... look around.’”) with Sambo’s Restaurant, 269 NLRB 1187, 1188 (1984)
(finding invalid cards solicited on representation that “the only purpose of signing the card was
to have an election”).
25
Here, I find that the credible evidence establishes that Leigh told both Montelongo and
Thomas that the purpose of the card was to sign up for free vocational training, and that he also
mentioned that the card was associated with union representation. Therefore, his statements to
the effect that the signing the cards would result in free training were not inconsistent with the
stated representative purpose of the card and did not negate the card’s written language and did 30
not amount to a directive that they should disregard that language. Consequently, that
Montelongo and Thomas signed their cards based on such representations provides no basis for
disregarding the expression of intent manifested in the card’s clear language.76
In conclusion, I agree with the General Counsel that the cards signed by Montelongo and 35
Thomas are valid and should be counted; I therefore find that the General Counsel has
established that, as of April 11, the Union enjoyed majority status (five cards in an appropriate,
nine-person unit) as of April 11.

75 Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965).
76 I note that Respondent does not argue that either Montelongo’s or Thomas’ card should be deemed
invalid pursuant to NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), and therefore do not consider this as
an additional basis for discounting them for purposes of establishing the Union’s majority status.
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C. Saxe Interrogation and Creation of the Impression of Surveillance [Compl. ¶ 5(e)]
The General Counsel alleges that, shortly following Leigh’s collection of authorization cards,
he was confronted by Saxe. During the conversation that ensued, it is alleged that Saxe
unlawfully interrogated Leigh about his union membership, activities and sympathies, as well as 5
that of other employees, and also created the impression that his union activities were under
surveillance. I agree.
1. Facts
10
At the end of his work shift on April 13, as Leigh clocked out and began to exit the
warehouse; at that point, warehouse tech Duran alerted him that Saxe was looking for him.
Leigh stopped and waited for Saxe, who approached him and asked Leigh to follow him into a
conference room. Once they arrived there, Saxe asked Leigh if he was signing people up for free
union training. Leigh dodged the question, stating, “nothing in life is free” to which Saxe 15
responded by furling his brow and telling Leigh to go. Saxe did not deny that this conversation
occurred, but rather offered a sanitized version of it. According to him, after repeatedly warning
Leigh about letting other workers weld at work, he confronted him and asked (without mention
of the Union), “why is everybody else welding for you, and why are you offering training,
welding?” (Tr. 1609–1611, 3492–3493.)20
I credit Leigh’s version of this exchange; it was specific, and he related it without
embellishment. Saxe, by contrast, appeared rather deliberately to omit the reference to “union”
training from his account; as I have noted elsewhere in this decision, Saxe’s visibly focused
countenance when recounting such editorialized versions of events was notably distinct from his 25
otherwise relaxed, forthcoming manner of testifying.
2. Analysis
a. Unlawful interrogation30
The Board recognizes that the lawfulness of particular questioning must be considered under
all the circumstances and there are no particular factors “to be mechanically applied in each
case.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985); Westwood Health Care Center, 330 NLRB 935, 939 (2000). That said, consideration 35
may be given to the following: whether the employee is an open and active union supporter;
whether there is a history of employer antiunion hostility or discrimination; the nature of the
information sought (especially if it could result in action against individual employees); the
position of the questioner in the company hierarchy; the place and method of interrogation; and
the truthfulness of the reply. The Board also considers the timing of the interrogation and 40
whether other unfair labor practices were occurring or had occurred. See Rossmore House,
supra; see also Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); RHCG Safety Corp., 365 NLRB
No. 88, slip op. at 1–2 (2017); See Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 17
(2016). Ultimately, the “task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is directed so 45
that he or she would feel restrained from exercising rights protected by Section 7 of the
Act.” Westwood Health Care Center, 330 NLRB 935, 940 (2000).
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In this case, these factors strongly support a finding of unlawful interrogation. Saxe,
Respondent’s president and CEO, literally summoned Leigh back to the warehouse after his shift
had ended to grill him about offering his coworkers “union training.” This, given the breadth of
Respondent’s other unfair labor practice violations and the fact that Leigh felt compelled to 5
deflect (rather than answer) Saxe’s query, argue in favor of an interrogation violation.
Moreover, Saxe’s questioning was clearly aimed to determine Leigh’s role in soliciting on behalf
of the Union, as well as to elicit whether or not Leigh had spoken to other employees about the
union. As such, I do not find the fact that Leigh had previously disclosed his pro-union leanings
to Saxe to privilege the highly coercive nature of his questioning. See Far West Fibres, Inc., 331 10
NLRB 950, 951 (2000) (questioning aimed at determining individual employee’s role in union
conduct constitutes unlawful interrogation); Valley Special Needs Program, Inc., 314 NLRB
903, 912 (1994) (asking open union supporter about union activities of other employees
coercive) (citations omitted).
15
b. Impression of surveillance
As the Board has held, an employer violates the Act when it gives employees the impression
that “members of management are peering over their shoulders, taking note of who is involved in
union activities, and in what particular ways.” Fred’k Wallace & Son, Inc., 331 NLRB 914, 91420
(2000). The Board has found that the impression of surveillance is created where an employer
tells employees that it is aware of their union activities but fails to tell them the source of that
information. North Hills Office Services, 346 NLRB 1099, 1103 (2006). The coercive quality of
such an ‘unsourced’ statement is based on its tendency to cause employees “to speculate as to
how the employer obtained its information, causing them reasonably to conclude that the 25
information was obtained through employer monitoring.” Id.
Saxe’s statements to Leigh were more than enough to put the latter on notice that Saxe was
wise to his card soliciting activity. By not revealing the source of his information, Saxe left
Leigh to speculate as to how it was obtained. Especially considering the sheer volume of 30
cameras placed throughout the warehouse facility where Leigh worked, Saxe’s failure to reveal
his source would more likely than not cause a reasonable employee in Leigh’s shoes to conclude
that his activity had been monitored via video.
Accordingly, I find that, by asking Leigh whether he had been offering free union training to 35
his coworkers, Saxe violated the Act as alleged in paragraphs 5(e)(i) and (ii) of the complaint.
D. Leigh’s Discharge [Compl. ¶ 6(j)]
Four days after his conference room chat with Saxe about “signing people up,” Leigh was 40
discharged. The General Counsel alleges, and I agree that this action was taken in retaliation for
his Union activity.
1. Facts
45
Leigh was not actually at work on April 17, having “called out” to care for an elderly family
member. For warehouse employees, “calling out” involves calling an established “callout line,”
JD(SF)–25–19
86
identifying himself and stating his reason for not coming in. It is undisputed that Leigh followed
these procedures. (Tr. 1614.) As discussed, infra, Leigh was informed that he was discharged
by Carrigan via telephone, and there is no evidence that he ever returned to the workplace or
otherwise had contact with any of his former coworkers.
5
According to Saxe, Leigh was fired for absenteeism, poor performance, “bad attitude” and
insubordination. Leigh’s insubordination, according to Saxe, involved him training other
employees to weld instead of doing welding himself. Curiously, Saxe supposedly learned about
this around the very time that Leigh was, in fact, pitching his coworkers on union provided
welding training.77 Leigh, for his part, readily admitted to showing employees how to weld but 10
denied that Saxe ever told him to stop doing so. Saxe also claimed that Leigh was frequently
AWOL at times when Saxe was looking for him.78 Finally, at hearing, Saxe added another
rationale for discharging Leigh, claiming that, 3 months prior to his discharge, he had been
accused of “confrontational” conduct by female office workers at the facility, who had
complained to Saxe that Leigh was “abusive,” a “bad guy” and “doing bad things.” (Tr. 140–15
141, 1613, 1640.) This testimony went uncorroborated.
Leigh admitted to occasionally reporting to work late, also to calling out from work. He
credibly denied, however, that anyone in management had spoken to him about these instances.
It does appear that, in January, Carrigan had emailed him about his tardiness and absences. As 20
she testified, typically, two absences in a single week is considered excessive and typically
generates disciplinary action. Carrigan’s email indicates that, on January 3 and 4, Leigh “called
out,” presumably triggering her email. The email indicates that it is constituted a “final warning”
that Leigh could be terminated for tardiness and/or absenteeism. (R. Exh. 67; Tr. 1638–1639,
2865–2866.)25
Shortly after Leigh began talking with his coworkers about the benefits of unionizing and
Saxe questioned him about his “involvement” with the Union, Respondent engaged in a flurry of
activity, documenting alleged problems with his performance. This consisted of Carrigan
approving a series of PAFs generated by Hunt, none of which were presented to Leigh for his 30
signature. These included:
- a March 30 “second verbal warning” for refusing to complete tasks as
assigned;
- an April 13 “third verbal warning” for using a personal cell phone during 35
work hours; and
- an April 16 “fourth verbal warning” for “for “leaving metal outside where it
could be ruined.”

77 Saxe, who admitted on cross examination that he received such reports in April, later tried
to backdate them, claiming that the issue actually arose months earlier. I found this attempt to
change the timeline unconvincing. (Tr. 138–140, 3490–3491, 3628–3631.)
78 I do not credit this (mainly hearsay) testimony, but rather find that Leigh credibly denied
ever leaving work while clocked in, except to go to one of Respondent’s theaters. (Tr. 139,
1641.)
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Each of the PAFs notes that Leigh had been verbally warned not to repeat the conduct in
question; however, Leigh credibly denied this ever happened, and his denials went unrebutted.
(R. Exh. 63, 64, 66; Tr. 1639–1640, 2855–2856, 2861.)
Respondent also began documenting Leigh’s absences. On April 12—the day before Saxe 5
confronted Leigh about signing his coworkers up for union training—Carrigan’s human
resources department generated a listing of the five times Leigh had called out so far that year.
Four days later, on April 16, Saxe sent Carrigan an email with the subject line, “[Leigh] write
ups,” in which he stated, “[l]et’s meet this morning to go over [Leigh’s] infractions.” Carrigan
recalled no such meeting having actually occurred. However, approximately 45 minutes later, 10
Saxe sent her an additional email, this time purporting to summarize his interaction with Leigh
on April 13 (when he accused him of signing his coworkers up for union-provided training).
According to Saxe’s email, Leigh during the conversation “admitted” to training Kendrick,
Lamar, Dwuane, and Justin (all card signers) to weld, concluding “[l]et’s talk with him one more
time today and let him know how important it is for him to simply do his job or he will be 15
termed.” (GC Exhs. 87, 88; Tr. 2198–2202.)
Around noon on April 17, Carrigan called Leigh and said that his employment was being
terminated because he was unreliable, had excess absences and had a poor attitude. Leigh asked
if he needed to come in and pick up his last check, and she said no, that his last paycheck would 20
be mailed. At hearing, Carrigan was adamant that, despite Saxe’s emails of the day prior
regarding Leigh’s “welding training” and contrary to his testimony regarding Leigh’s alleged
insubordination, he was in fact discharged for “excessive tardies and absences.” (Tr. 1613, 1645,
2202, 2871; R. Exh. 70.)
25
After Carrigan’s conversation with Leigh, Respondent, via emails and PAFs, attempted to
recreate the series of events leading to his discharge. At 1:52 p.m., Hunt sent Carrigan (with a
copy to Saxe) stating that Leigh had called out again “with no good reason,” stated that she had
“done several write ups” regarding Leigh and ended with a dramatic flair:
30
I, as well as others at the office have asked for this for so long yet
[Saxe] keeps on refusing to allow us to term him, even though he
agrees Scott is terrible at his job. Please allow me to term him
today.
35
At the time he was discharged, Leigh’s entire disciplinary file consisted of verbal warnings
generated during the prior 6 weeks but not presented to him. Less than an hour after receiving
Hunt’s email, Carrigan approved an additional discipline for Leigh’s file—this time, a written
warning—for refusing to complete his assigned tasks. This warning specifically accused Leigh
of not moving certain items in the warehouse as instructed and attached what purports to be 40
photographic documentation of the items in question. (R. Exh. 65, 69.)
2. Analysis
The General Counsel has established a strong prima facie case with respect to Leigh’s 45
discharge. Saxe’s conversations with Leigh make it clear that he had a good grasp on the latter’s
card soliciting activities among the warehouse employees and was not pleased that, through
JD(SF)–25–19
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Leigh, the Union had opened another front in its attempt to organize Respondent’s operations.
Indeed, at first blush, it appears that Saxe’s consternation with Leigh’s providing “welding
training,” was a quasi-admission—the credible evidence in fact establishes that Leigh was using
the offer of such training to solicit on behalf of the Union. This, combined with the fact that
Carrigan, a human resources professional, assiduously “scrubbed” this rationale from her version 5
of the discharge decision, leads me to believe that Leigh’s card solicitation is precisely what
motivated his discharge.
That Leigh’s discharge followed on the heels of Respondent’s multiple other unfair labor
practices, including the mass discharge of union adherents, is further proof of its discriminatory 10
motivation. See David Saxe Productions, 364 NLRB No. 100, slip op. at 5 (citing Amptech, Inc.,
342 NLRB 1131, 1135 (2004), enfd. 165 Fed.Appx. 435 (6th Cir. 2006). Further evidence of
animus is found in the timing of Respondent’s intensive effort to document Leigh’s supposed
performance failings, which coincided squarely with his protected conduct. As noted, supra,
“[t]he Board has long held that the timing of an adverse action shortly after an employee has 15
engaged in protected activity will support a finding of unlawful motivation.” See David Saxe
Productions, 364 NLRB No. 100, slip op. at 5 (citing Real Foods Co., 350 NLRB 309, 312
(2007); Davey Roofing, Inc., 341 NLRB 222, 223 (2004)). Further evidence of animus against
Leigh is found in Respondent’s creation of a secret narrative of his supposed misconduct in the
form of never-issued PAFs (both before and after Carrigan had fired him), as well as staging the 20
discharge decision after the fact, complete with an email from Hunt imploring Saxe and Carrigan
to “allow” her to discharge Leigh, who had actually been discharged hours earlier. See Lord
Industries, Inc., 207 NLRB 419, 422 (1973) (failure to present discharged employees with copies
of written disciplines contained in their personnel files supports finding of pretext).
25
Taking into account all of the foregoing considerations, I find that the General Counsel made
a strong showing of discriminatory motivation. Accordingly, under Wright Line, the burden then
shifts to Respondent to demonstrate that it would have discharged Leigh even absent his
protected activity. Faced with the General Counsel’s strong showing of unlawful motivation,
Respondent’s rebuttal burden is substantial. See Alternative Energy Applications, Inc., 361 30
NLRB 1203, 1207 (2014) (citing cases). While Leigh did apparently receive a prior discipline
for absenteeism in January, Respondent’s clumsy effort to shift the focus from his
“insubordination” (i.e., offering welding training) to his schedule adherence, coupled with the
absence of testimony by Hunt, on whose credibility the absenteeism rationale ultimately rests,
leads me to believe that this, nor any of Respondent’s other proffered rationales were the real 35
reason for his termination. See Approved Electric Corp., 356 NLRB 238 (2010) (“[t]he Board
commonly recognizes such shifting rationales as evidence that an employer’s proffered reasons
for discharging an employee are pretextual”); Shamrock Foods, 366 NLRB No. 117, slip op. at
27–28 (employer’s shifting, false, or exaggerated reasons for an adverse action are evidence of
unlawful motive); Inter-Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007) (finding that 40
“an employer’s shifting explanation for a discharge, or . . . its post hoc attempt to rationalize
such a decision, are suggestive of a pretext”).
Based on the above, I find that Respondent failed to demonstrate that they would have
discharged Leigh even absent his protected activity, in that the proffered reasons for his 45
discharge were pretextual. Accordingly, I find that, by discharging Leigh, Respondent violated
Section 8(a)(3) and (1) of the Act.
JD(SF)–25–19
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E. Gissel Bargaining Order
As discussed herein, I have determined that the General Counsel has demonstrated that, as of
April 11, the Union enjoyed majority support in an appropriate unit. These factors are necessary, 5
but certainly not sufficient, to warrant the issuance of a bargaining order.
Under Gissel, a bargaining order is appropriate where an employer’s unfair labor practices of
have so decreased the chance of a fair election that the already expressed desires of employees
for representation (here, the employees’ authorization cards) are a more reliable indication of 10
free choice than an election would be. 395 U.S. 599, 603 (1969) (“cards, though admittedly
inferior to the election process, can adequately reflect employee sentiment when that process has
been impeded. . . .”). Specifically, the question is whether the unfair labor practices are such that
they leave only a slight chance that they can be remedied with traditional remedies in a manner
that will ensure a fair re-run election, or rather, on balance, would a bargaining order based on 15
the Union’s demonstrated card majority provide a better expression of employee sentiment.
Gissel, 395 U.S. at 614. In making this determination it is appropriate to examine: (1) the
seriousness of the violations, (2) the number of employees directly affected by the violations, (3)
the size of the unit, (4) the extent of dissemination among the employees, and (5) the identity of
the perpetrator of the unfair labor practice. Milum Textile Services Co., 357 NLRB 2047, 2055 20
(2011); Holly Farms Corp., 311 NLRB 273, 281 (1993) (citing FJN Mfg., 305 NLRB 656, 657
(1991)).
In this case, the first, third and fifth factors weigh strongly in favor of a bargaining order.
The Board and courts have recognized that the unlawful discharge of a union adherent such as 25
Leigh constitutes flagrant interference with employees’ rights under the Act and are have the
potential to cause long-lasting damage to election conditions because they have a tendency to
reinforce employees’ fear that they will lose their employment if union activity persists.
A.P.R.A. Fuel Oil, 309 NLRB 480, 481 (1992), enfd. 28 F.3d 103 (2d Cir. 1994). Accord:
Michael’s Painting, 337 NLRB 860, 861 (2002), enfd. 85 Fed.Appx. 614 (9th Cir. 2004); NLRB 30
v. Wilhow Corp., 666 F.2d 1294, 1304 (10th Cir.1981); NLRB v. Jamaica Towing, Inc., 632 F.2d
208, 212-213 (2d Cir. 1980). The small size of the warehouse tech unit and the fact that Saxe
himself was involved in the discharge decision similarly support the issuance of a Gissel order.
As the Board has held, “[w]hen the antiunion message is so clearly communicated by the words
and deeds of the highest levels of management, it is highly coercive and unlikely to be 35
forgotten.” Consec Security, 325 NLRB 453, 455 (1998), enfd. mem. 185 F.3d 862 (3d Cir.
1999).
It is the two remaining factors—the number of employees directly affected by the unfair
labor practices and the extent of dissemination of them—that present a problem. Where a 40
substantial percentage of employees in the bargaining unit is directly affected by an employer’s
serious unfair labor practices, the possibility of holding a fair election decreases, supporting the
issuance of a bargaining order. Cogburn Healthcare Center, 335 NLRB 1397, 1399 (2001).
Likewise, even where the unfair labor practices have no widespread effect, unit-wide, their broad
dissemination may itself warrant a Gissel order, in that the employer’s conduct has created a 45
“legacy of coercion” that would likely poison the atmosphere in which any new election would
take place. See Garvey Marine, Inc., 245 F.3d 819, 827 (D.C. Cir. 2001), enfg. 328 NLRB 991
JD(SF)–25–19
90
(1999). Conversely, where the employer’s unfair labor practices neither affect or are
disseminated to a significant portion of the bargaining unit, a bargaining order will be deemed
unnecessary and therefore inappropriate. Desert Toyota, 346 NLRB 118 (2005) (with exception
of unlawful no-solicitation rule, none of unfair labor practices occurred on a unit-wide basis,
only two employees directly affected by them and no evidence of dissemination); Cardinal 5
Home Products, 338 NLRB 1004, 1011 (2003) (no threats of plant closure, and with exception of
unlawful no-solicitation rule, virtually all unfair labor practices occurred in one-one-one
situations, did not affect significant portion of bargaining unit, and were not disseminated); see
also Stern Produce Company, Inc., 368 NLRB No. 31, slip op. at 4–5 (2019) (along with passage
of time, lack of widespread dissemination of hallmark violations renders bargaining order 10
inappropriate).
I find that there is insufficient evidence of dissemination of the conduct that would support a
Gissel order (i.e., the conduct that occurred after a majority of unit employees signed
authorization cards)79 These actions were Leigh’s discharge, Saxe’s interrogation of him and 15
creation of the impression of surveillance of his union activities, and Respondent’s continued
maintenance of two unlawful handbook rules. Only the rules had any direct effect on any
employee other than Leigh, and there is no evidence of dissemination throughout the unit of
either the fact of his discharge or Saxe’s coercive statements to Leigh. As such, despite
Respondent’s unfair labor practices being serious, the record does not establish that they 20
impacted a significant portion of the unit such that traditional remedies would be inadequate to
ensure a fair election. Nor is there a factual basis on which to conclude that these actions would
likely have been disseminated throughout the unit. Compare Garvey Marine, Inc., 328 NLRB at
1016 (1999) (concluding that news of suspension of union adherent, in dramatic fashion
involving police presence, would be disseminated). Under the circumstances, I decline to 25
recommend the imposition of a Gissel bargaining order remedy.
As discussed, infra, I do find, however, that certain special remedies are warranted in light of
Respondent’s extensive and serious unfair labor practices in response to its employees’ union
organizational efforts. These additional remedies should serve to dissipate as much as possible 30
any lingering effects of the Respondent’s unfair labor practices.
CONCLUSIONS OF LAW
35
1. David Saxe Productions, LLC and V Theater Group, LLC, which collectively
comprise Respondent, are joint employers, and are jointly and severally liable for the violations
found herein.

79 While there is ample evidence of Respondent’s serious unfair labor practices among the theater
unit, this occurred before a majority of warehouse techs signed authorization cards. In the absence of
evidence that the warehouse techs only learned of this conduct (the mass discharges, etc.) after expressing
their support for representation, there no logical way to attribute an erosion in the union’s majority
support to these actions. See Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, 1121–
1122 (2004).
JD(SF)–25–19
91
2. David Saxe Productions, LLC and V Theater Group, LLC are individually, and
as joint employers, employers engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. Charging Party International Alliance of Theatrical Stage Employees and Moving 5
Picture Technicians, Artists, and Allied Crafts of the United States and Canada, Local 720, AFL–
CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act.
4. By maintaining the following rules in their respective employee handbooks,
Respondent has engaged in unfair labor practices affecting commerce within the meaning of 10
8(a)(1) of the Act:
a. A rule that prohibits employees from blogging in a manner that is detrimental to
Respondent’s best interests or tarnishes Respondent’s image, reputation and/or
good will; and15
b. A rule requiring employees to refer to Respondent’s human resources
representative requests from “outside people or organizations” to engage in
solicitation or distribution.
5. By engaging in the following conduct, Respondent violated Section 8(a)(1) of the 20
Act:
a. Threatening employees with unspecified reprisals for engaging in union activities;
b. Interrogating employees about their union membership, activities and sympathies
and the union membership, activities and sympathies of other employees;25
c. Creating the impression among employees that their union activities were under
surveillance by Respondent; and
d. Promising employees increased benefits and improved terms and conditions of
employment if they refrained from union activity by soliciting employee
complaints and grievances.30
6. By discharging the following employees because of their support for the Union or
engaging in other protected concerted activities, Respondent violated Section 8(a)(3) and (1) of
the Act:
35
a. Leigh-Ann Hill
b. Jasmine Glick
c. Nathaniel Franco
d. Taylor Bohannon
e. Alanzi Langstaff40
f. Michael Gasca
g. Chris S’uapaia
h. Zachary Graham
i. Kevin Michaels
j. Scott Leigh45
JD(SF)–25–19
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7. By engaging in the following conduct, Respondent violated Section 8(a)(3) and (1) of
the Act:
a. Granting employees a retroactive wage increase;
b. Assigning employee Courtney Kostew “cue calling” duties;5
c. Reducing the work hours of employees Darnell Glen and Scott Tupy (Tupy);
d. Denying employee Stephen Urbanski (Urbanski) light duty;
e. Imposing more onerous and rigorous terms and conditions of employment on
Urbanski; and
f. Issuing Tupy written discipline.10
8. The foregoing unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY15
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
20
Specifically, having found that Respondent violated Section 8(a)(3) and (1) of the Act by
discharging employees Leigh-Ann Hill, Jasmine Glick, Nathaniel Franco, Taylor Bohannon,
Alanzi Langstaff, Michael Gasca, Chris S’uapaia, Zachary Graham, Kevin Michaels, and Scott
Leigh (the discharged employees), I recommend that it be ordered to offer them, to the extent it
has not already done so, immediate and full reinstatement to their former jobs, or, if those jobs25
no longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and to make them whole for any loss of earnings
and other benefits suffered as a result of the unlawful discrimination against them. Having found
that Respondent violated Section 8(a)(3) and (1) of the Act by reducing the hours of employees
Darnell Glen and Scott Tupy and by denying light duty to Stephen Urbanski, Respondent must 30
make them whole for any loss of earnings and other benefits suffered as a result of the unlawful
discrimination against them. Having found that Respondent violated Section 8(a)(3) and (1) of
the Act by assigning Courtney Kostew cue calling duties, Respondent must cease assigning her
such duties.
35
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017),
Respondent must compensate each of the discharged employees for their search-for-work and 40
interim employment expenses regardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be calculated separately from taxable
net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra. In addition, Respondent must compensate
the discharged employees, as well as Darnell Glen, Scott Tupy and Stephen Urbanski, for any 45
adverse tax consequences of receiving a lump-sum backpay award and to file, within 21 days of
the date the amount of backpay is fixed, either by agreement or Board order, a report with the
JD(SF)–25–19
93
Regional Director for Region 28 allocating the backpay awards to the appropriate calendar years
for each employee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
Because Respondent promulgated and maintained certain unlawful workplace rules, I shall
recommend that Respondent be ordered to rescind and cease giving effect to their handbook 5
rules regarding email and communications activities, blogging and non-solicitation/distribution,
insofar as they prohibit blogging that is detrimental to Respondent’s best interests or that may
harm or tarnish its image, reputation and/or goodwill, or require employees to refer to
Respondent’s human resources representative any request from “outside people or organizations”
to solicit and/or distribute literature at any of Respondent’s facilities.10
I will recommend that Respondent be ordered to post a notice in the usual manner, including
electronically to the extent mandated in J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In
accordance with J. Picini Flooring, the question as to whether an electronic notice is appropriate
should be resolved at the compliance phase. In addition to traditional notice posting, the General 15
Counsel has requested several special remedies, including: (a) an explanation of rights, (b) a
reading of this document, as well as the Board notice and (c) a broad cease-and-desist order. I
find each of these remedies appropriate here.80
An explanation of rights accompanying the Board notice is warranted considering the nature 20
and pervasiveness of Respondent’s unfair labor practice violations. In addition to the language
in a standard notice, the explanation of rights sets out the employees’ core rights under the Act,
coupled with clear general examples that are specifically relevant to the unfair labor practices
found in this case. See Pacific Beach Hotel, 361 NLRB 709, 714 (2014). This is designed to
help undo the likely impact of the violations on employees and help remedy the chilling effect of25
Respondent’s conduct. I therefore recommend that Respondent be ordered to post an
explanation of rights as described in the attached appendix to be provided by the Regional
Director for Region 28.
Likewise, a public reading of the notice, along with the Explanation of Rights, will serve to 30
reassure employees that that their employer and its managers are bound by the Act’s
requirements. Respondent, a recidivist violator of the Act,81 has committed multiple and
pervasive violations of the Act, suggesting that employees not be appropriately informed by a
notice posting. Reassurance to employees that their rights under the Act will not be violated by
Respondent is particularly important because Respondent’s owner, Saxe, was directly involved 35
in nearly every instance of unlawful conduct. Stern Produce Company, Inc., 368 NLRB No. 31,
slip op. at 5 (citing North Memorial Health Care, 364 NLRB No. 61, slip op. at 1 (2016) (notice-
reading appropriate in part due to participation of high-ranking responsible management officials
in unfair labor practices), enfd. in relevant part 860 F.3d 639 (8th Cir. 2017)); see also Federated

80 The General Counsel also requests that I order Respondent to reimburse discriminatees for
consequential economic harm incurred by them as a result of its unlawful conduct, a remedy not
traditionally included in Board orders. See Operating Engineers Local 513 (Long Construction
Co.), 145 NLRB 554 (1963). As I am obligated to following existing Board precedent, I decline
to recommend this remedy. See Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco,
Inc., 273 NLRB 746, 749 fn. 14 (1984).
81 See David Saxe Productions, LLC, 364 NLRB No. 100 (2016).
JD(SF)–25–19
94
Logistics & Operations, 340 NLRB 255, 258 (2003), review denied 400 F.3d 920, 930 (D.C. Cir.
2005).
Accordingly, I recommend that Respondent be ordered, during the time the required notice
and explanation of rights is posted, to convene its employees and have David Saxe (or, if he is no 5
longer the owner, a high-ranking management official), in the presence of Tiffany DeStefano,
T.C. Carrigan, Thomas Estrada, Sr., Dan Mecca and Steve Sojack, a Board agent and an agent of
the Union, if the Region and/or the Union so desire, read the notice aloud to employees, or, at
Respondent’s option, permit a Board agent, in the presence Saxe, to read the notice to the
employees. I recommend that the Board agent then read the explanation of rights aloud to 10
employees. See Bozzuto’s, Inc., 365 NLRB No. 146, slip op. at 5 (2017).
In addition, I find that the egregiousness of Respondent’s unfair labor practices and
Respondent’s status as a recidivist violator of the Act warrants a broad order requiring
Respondent to cease and desist “in any other manner” from interfering with, restraining, or 15
coercing its employees in the exercise of their Section 7 rights. See Hickmott Foods, 242 NLRB
1357 (1979).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8220
ORDER
Respondent, a joint employer, which consists, inter alia, of David Saxe Productions, LLC 25
and V Theater Group, LLC of Las Vegas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
30
(a) Maintaining an overly broad blogging policy that unlawfully interferes with
employees’ use of computer systems for Section 7 purposes;
(b) Maintaining an overly broad non-solicitation/distribution policy that requires
employees to refer to Respondent’s human resources department any third-party 35
request to solicit or distribute on Respondent’s property;
(c) Creating the impression that employees’ union or protected conduct;
(d) Threatening employees with unspecified reprisals for engaging in union or other 40
protected conduct;

82 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–25–19
95
(e) Interrogating employees about their union and other protected activities, and the
union and other protected activities of other employees;
(f) Promising employees increased benefits and improved terms and conditions of
employment if they refrain from union activity by soliciting employee complaints 5
and grievances;
(g) Discharging employees, issuing them discipline or reducing their work hours,
because they engaged in union or other protected activities, including supporting
International Alliance of Theatrical Stage Employees and Moving Picture 10
Technicians, Artists, and Allied Crafts of the United States and Canada, Local 720,
AFL–CIO (the Union).
(h) Denying employees light duty, or imposing more onerous and rigorous terms and
conditions of employment on them, because they engaged in union or other 15
protected activities, including supporting the Union;
(i) Granting employees a wage increase to discourage them from engaging in Union
and other protected activities;
20
(j) Assigning employees cue calling duties to encourage them to engage in anti-union
conduct, or to reward them for engaging in such conduct; and
(k) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Leigh-Ann Hill, Jasmine
Glick, Nathaniel Franco, Taylor Bohannon, Alanzi Langstaff, Michael Gasca,
Chris S’uapaia, Zachary Graham, Kevin Michaels, and Scott Leigh, to the extent it 30
has not already done so, full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order, make Leigh-Ann Hill, Jasmine 35
Glick, Nathaniel Franco, Taylor Bohannon, Alanzi Langstaff, Michael Gasca,
Chris S’uapaia, Zachary Graham, Kevin Michaels, Scott Leigh, Darnell Glen,
Scott Tupy and Stephen Urbanski whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the manner set forth in the
remedy section of the decision.40
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful terminations of Leigh-Ann Hill, Jasmine Glick,
Nathaniel Franco, Taylor Bohannon, Alanzi Langstaff, Michael Gasca, Chris
S’uapaia, Zachary Graham, Kevin Michaels, and Scott Leigh, and the unlawful 45
discipline of Scott Tupy, and within 3 days thereafter notify them in writing that
JD(SF)–25–19
96
this has been done and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 5
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
10
(e) Within 14 days after service by the Region, post at its facilities in Las Vegas,
Nevada, copies of the attached notice marked “Appendix A” and the attached
explanation of rights marked “Appendix B.” Copies of the notice and explanation
of rights, on forms provided by the Regional Director for Region 28, after being
signed by Respondent’s authorized representative, shall be posted by Respondent 15
and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to physical
posting, the notice and explanation of rights shall be distributed electronically,
such as by email, posting on an intranet or an internet set, and/or other electronic
means, if Respondent customarily communicates with its employees by such 20
means. Reasonable steps shall be taken by Respondent to ensure that the notices
and explanation of rights are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, Respondent
has gone out of business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy of the notice and 25
explanation of rights to all current employees and former employees employed by
Respondent at any time since January 10, 2018.
(f) Within 14 days after service by the Region, hold a meeting or meetings, scheduled
to ensure the widest possible attendance, at which the “Notice to Employees” is to 30
be read to the employees by Respondent’s owner, David Saxe or at Respondent’s
option, by a Board agent in the presence of Saxe. If Saxe is no longer an owner or
officer of the Respondent, then the Respondent shall designate another owner or
officer to conduct or be present for the reading.
35
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 28–RC–219130 be, and it hereby is, severed from 40
Cases 28–CA–219225, 28–CA–223339, 28–CA–223362, 28–CA–223376, and 28–CA–224119
and that it be, and it hereby is, remanded to the Regional Director; that the challenges to the
ballots cast in a representation election conducted in said case on May 17, 2018, be, and they
hereby are, overruled; and that the Regional Director be, and he hereby is, directed to open and
count said challenged ballots and to prepare and serve upon the parties a revised tally of ballots. 45
If the Petitioner receives a majority of the votes cast, the Regional Director shall issue a
certification of representative. In the event that the Petitioner does not receive a majority of the
JD(SF)–25–19
97
votes cast, according to the revised tally, it is further ordered that the election held on January 12,
1978, among the warehouse employees of the Respondent be set aside and that the Regional
Director be directed to conduct a second election at such time as he deems that circumstances
permit the free choice of a bargaining representative.
5
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C., August 27, 2019
Mara-Louise Anzalone
Administrative Law Judge
JD(SF)–25–19
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 violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT maintain a handbook rule that prohibits you from blogging that is detrimental to our
best interests or that tarnishes our image, reputation or goodwill.
WE WILL NOT maintain a handbook rule that requires you to refer to our human resources department
any request from “outside people or organizations” to engage in solicitation or distribution.
WE WILL NOT threaten you with unspecified reprisals should you engage in union activities and/or
protected concerted activities.
WE WILL NOT ask you about your union membership, activities or how you feel about unions.
WE WILL NOT coercively interrogate you about your union activities and sympathies, or the union
activities and sympathies.
WE WILL NOT create the impression that your union activities are under surveillance.
WE WILL NOT solicit employee complaints and grievances and promise you increased benefits and
improved terms and conditions of employment to encourage you to refrain from union organizational
activities.
WE WILL NOT discharge employees or impose any disciplinary measures on employees because of
their activities on behalf of or support for International Alliance of Theatrical Stage Employees and
Moving Picture Technicians, Artists, and Allied Crafts of the United States and Canada, Local 720, AFL–
CIO (IATSI Local 720), or any other union or because they engaged in other protected concerted activity.
WE WILL NOT grant a wage increase in order to discourage you from union membership.
WE WILL NOT assign you a more prestigious job assignment to encourage you to campaign against
IATSI Local 720 or any other labor organization, or to reward you for doing so.
WE WILL NOT reduce your work hours because of your activities on behalf of or support for a union or
because you engage in other protected concerted activity.
JD(SF)–25–19
WE WILL NOT deny you light duty or impose more onerous and rigorous terms of conditions of
employment on you because of your activities on behalf of or support for a union or because you engage
in other protected concerted activity.
WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL modify our employee handbook by rescinding: (a) the provision that prohibits you from
blogging in a manner that is detrimental to our best interests or tarnishes our image, reputation and/or
good will; and (b) the provision that requires you to refer to human resources any request from an outside
person or organization to engage in solicitation or distribution.
WE WILL, within 14 days of the Board’s Order, insofar as we have not already done so, offer our
below-named former employees immediate and full reinstatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent jobs, without prejudice to their seniority or any other rights or
privileges previously enjoyed: Leigh-Ann Hill, Jasmine Glick, Nathaniel Franco, Taylor Benavente
Bohannon, Alanzi Langstaff, Michael Gasca, Chris S’uapaia, Zachary Graham, Kevin Michaels, and
Scott Leigh.
WE WILL make the employees named above, as well as Darnell Glen, Scott Tupy and Stephen
Urbanski, whole for any earnings and other benefits suffered as a result of our unlawful discrimination
against them, with interest.
WE WILL, within 14 days of the Board’s Order, remove from our files any references to our unlawful
discharge of the employees named above, and WE WILL, within 3 days thereafter, notify them, in
writing, that this has been done and that our unlawful actions will not be used against any of them in any
way.
WE WILL, within 14 days of the Board’s Order, restore the work schedules of Darnell Glen and Scott
Tupy to reflect their pre-June 1, 2018 “show call” time.
WE WILL, within 14 days of the Board’s Order, remove from our files all references to the June 20,
2018 discipline issued to Scott Tupy and notify him in writing that this has been done and that the
discipline will not be used against him in any way.
DAVID SAXE PRODUCTIONS, LLC and V
THEATER GROUP, LLC, Joint Employers,
__________________________________
(Employer)
Dated_______________ By: __________________________
(Representative) (Title)
JD(SF)–25–19
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-219225 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 602-640-2146
JD(SF)–25–19
APPENDIX B
EXPLANATION OF RIGHTS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
Employees covered by the National Labor Relations Act have the right to join together to improve their
wages and working conditions, including by organizing a union and bargaining collectively with their
employer, and also the right to choose not to do so. This Explanation of Rights contains important
information about your rights under this Federal law.
The National Labor Relations Board has ordered your employer, David Saxe Productions, LLC and its
Joint Employer V Theater Group, LLC, to provide you with this Explanation of Rights to describe your
rights and to provide examples of illegal behavior.
Under the National Labor Relations Act, you have the right to:
• Organize a union to negotiate with your employer concerning your wages, hours, and working
conditions.
• Support your union in negotiations.
• Discuss your wages, benefits, other terms and conditions of employment, and collective-
bargaining negotiations with your coworkers or your union.
• Take action with one or more coworkers to improve your working conditions.
• Choose not to do any of these activities.
It is illegal for your employer to take any adverse action against you because you formed, joined, assisted
or supported International Alliance of Theatrical Stage Employees and Moving Picture Technicians,
Artists, and Allied Crafts of the United States and Canada, Local 720, AFL–CIO (IATSI Local 720),
expressed support for unions in general, or took action with one or more coworkers to improve your
working conditions, or to discourage you from doing so. Prohibited adverse actions include:
discharge
discipline
reduction of wages
reduction of work hours
denial of light duty
imposition of more onerous work conditions
It is also illegal for your employer to:
• Threaten you with adverse consequences, if you form, join, assist or support a union.
• Interrogate you about your union membership, activities and sympathies, or the union
membership, activities and sympathies of other employees.
• Give you the impression that your union activities are under surveillance.
• Implicitly promise you increased benefits for not engaging in union or other protected concerted
activities.
• Reward you with more prestigious job assignments for refraining from supporting the Union.
JD(SF)–25–19
Illegal conduct will not be permitted. The National Labor Relations Board enforces the Act by
prosecuting violations. If you believe your rights or the rights of others have been violated, you should
contact the NLRB promptly to protect your rights, generally within 6 months of the unlawful
activity. You may ask about a possible violation without your employer or anyone else being informed
that you have done so. The NLRB will conduct an investigation of possible violations if a charge is filed.
Charges maybe filed by any person and need not be filed by the employee directly affected by the
violation.
You can contact the NLRB’s regional office, located at:
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160
For more information about your rights and about the National Labor Relations Board and the Act, visit
the Agency's Website: http://www.nlrb.gov.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-219225 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146