National Hot Rod Association (NHRA)

National Labor Relations Board - Administrative Judge Opinions

Nov 9, 2018

02-CA-185569 (N.L.R.B. Nov. 9, 2018)

JD(NY)-16-18
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NATIONAL HOT ROD ASSOCIATION
and
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS,
ARTISTS AND ALLIED CRAFTS
OF THE UNITED STATES, ITS TERRITORIES
AND CANADA, AFL-CIO, CLC
Cases 02-CA-185569
22-CA-190221
22-CA-192686
22-RC-186622
Evamaria Cox, Esq. and Marcia Adams, Esq., for the General Counsel.
Daniel Murphy, Esq. (Constangy, Brooks, Smith & Prophete, LLP), for the Respondent.
Adrian D. Healy, Esq. (IATSE), for the Petitioner/Charging Party.
DECISION
STATEMENT OF THE CASE
Benjamin W. Green, Administrative Law Judge. A trial was conducted in this matter on
December 7, February 27, 28, March 1, 2, 5, 13, 2018, in Brooklyn, New York.1 The complaint,
as amended on the first day of trial, alleged that the Respondent violated Section 8(a)(3) and/or
(1) of the Act by discharging or declining to extend employment to employees Nathan Hess,
James Dean, Timothy Glass and Joshua Piner because of their protected activities. The
complaint further alleged that the Respondent violated Section 8(a)(1) of the Act by soliciting
employee grievances and impliedly promising to fix them to discourage union support,
threatening employees with unspecified reprisals by telling them there would be consequences
to forming a union, creating the impression among employees that their union activity was under
surveillance, and informing employees that union representation would delay job offers for the
2017 racing season. The Respondent has denied the substantive allegations.
By a September 8, 2017 order of the Regional Director of Region 22, the complaint was
consolidated for hearing with certain objections, filed by the Respondent on December 9, 2016,
to a mail-ballot election conducted from November 15 to December 2, 2016 in representation
Case 02-RC-186622. The Respondent’s objections included a contention that four employees
were denied the opportunity to vote due to election irregularities caused by the Region.2 The
Regional order also consolidated with the complaint the disposition of the challenged ballots of
alleged discriminatees Hess and Piner. The Respondent contended that Hess and Piner were

1 All dates refer to 2016, unless stated otherwise.
2 The December 9, 2016 objections include additional objections that the Respondent did not argue
in support of at trial or in its post-hearing brief. I do not independently find merit to any of these
unsupported objections and do not address them further herein.
JD(NY)-16-18
2
not eligible to vote because they were lawfully discharged for cause before the election. The
Regional order overruled and did not consolidate for hearing certain additional objections filed
by the Respondent on August 23, 2017 to the same election. The complaint allegation
concerning the Respondent’s separation of Glass was resolved prior to trial. After the record
opened, the Union and the Respondent entered into non-Board settlements that resolved the 5
allegations concerning the separations of Dean and Piner.3
As discussed at length below, I find merit to all the unfair labor practice allegations
except the threat of unspecified consequences. I do not find the Respondent’s objections to
have merit as a basis for ordering a rerun election. Finally, since I find that Hess was 10
discharged unlawfully, I recommend that the challenge to his ballot be overruled.
Post-hearing briefs were filed by the General Counsel, the Respondent, and the Union.
On the entire record, including my observation of the demeanor of the witnesses, I make 15
the following findings, conclusions of law, and recommendations.
JURISDICTION
The Respondent is a California corporation with an office and place of business located 20
in Glendora, California, and is engaged in the business of sanctioning and producing drag
racing events for telecast. During the 12-month period prior to the issuance of the complaint,
the Respondent in the course and conduct of its business operation derived gross revenues in
excess of $500,000 and performed services valued in excess of $50,000 in states other than the
State of California.25
At all material times, the Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a labor
organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that
this dispute affects commerce and that the Board has jurisdiction over this case, pursuant to 30
Section 10(a) of the Act.
35
40
45

3 With regard to the Section 8(a)(3) allegations of Dean and Piner, I approve the General Counsel’s
withdrawal of the charge and dismiss the appropriate portions of the complaint (i.e., paragraphs 11, 12
and 14 as they pertain to Dean and Piner). Pursuant to the settlement of the Piner allegation, the
Petitioner/Charging Party union (the Union) agreed to keep Piner’s ballot sealed and exclude it from the
ballot count in Case 02-RC-186622. Accordingly, I do not address the challenge to Piner’s ballot herein.
JD(NY)-16-18
3
UNFAIR LABOR PRACTICES
FINDINGS OF FACT4
The Respondent’s Operation5
The Respondent is a racing association that produces thousands of drag race events
each year, including the Mello Yello Drag Racing Series and Lucas Oil Drag Racing Series.
The Respondent’s events consist of various vehicle classifications and participant skill levels
with drivers racing head-to-head side-by-side down a quarter mile track. The Mello Yello series 10
is for professional drivers at the highest skill level who complete for significant prize money.
The Locas Oil series is the “Pro/Sportsman” series immediately below Mello Yello.
The Mello Yello racing series consists of 24 events from February to November. Prior to
2016, Mello Yello was produced for television by ESPN. Hess worked for ESPN on these 15
productions in various positions between 2006 and 2016. He was a pit producer for the entire
2014 season and about half the 2015 season. From about July 2015 to the end of the 2015
season (about 11 or 12 races), Hess worked as the tape producer. Dean worked for ESPN as
an EVS operator from about 2007 to 2016.5
20
In 2015, the Respondent prepared to take the Mello Yello television production in-house
for broadcast of the 2016 season on FOX channels. On September 1, 2015, the Respondent
retained Chief Accounting Officer and Executive Producer Kenneth Adelson to lead the
transition. Adelson reported to Peter Clifford, the Respondent’s CEO. Adelson hired producer
Peter Skorich, technology executive Michael Rokosa, and director Jim Sobczak. In taking the 25
telecast production in-house, the Respondent created an entirely new operation.
Adelson testified that he wanted someone for the tape producer position with significant
experience on major live events. Accordingly, he went through a long deliberative process of
finding someone suitable. The first two experienced candidates he attempted to recruit for the 30
position of tape producer turned it down. Adelson initially spoke to Hess in 2015 about staying
on from ESPN as a pit producer (not knowing Hess worked the second half of the season as the
tape producer). When Adelson found out Hess worked as the ESPN tape producer (having
been unsuccessful recruiting someone else), he offered Hess the position. However, Adelson
did not immediately offer Hess the wage rate typically associated with the tape producer 35
position. Rather, Adelson offered Hess the lower pit producer rate because Hess did not have
much experience as a tape producer. Adelson promised to reevaluate the issue of Hess’s pay
midway through the season at some point during the summer of 2016.

4 My factual findings are based in part on credibility determinations and, in this decision, I have
credited some but not all of the testimony of certain witnesses. Credibility findings need not be all-or-
nothing propositions and, indeed, it is common in judicial proceedings to believe some, but not all, of a
witness’s testimony. Daikichi Sushi, 335 NLRB 622 (2001). A credibility determination may rely on a
variety of factors, including the context of the testimony, the witness’s demeanor, and the weight of the
respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that
may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003).
5 EVS operators are also referred to as tape or replay operators.
JD(NY)-16-18
4
Marleen Gurrola, the Respondent’s Vice President of Human Resources, testified that
the Respondent employs a core group of personnel consisting of about 165 full-time and 20
part-time employees. The Respondent also employs about 1600 to 1800 event workers who
work one or more events throughout the year. Gurrola works at the Respondent’s headquarters 5
in Glendora, California, but attends some racing events. Gurrola testified that, when she
attends races, it is her practice to walk around and talk to event workers she does not have an
opportunity to see on a regular basis. According to Gurrola, in talking to employees, she
attempts to determine whether she can help with anything and takes notes of the employees’
comments.610
Each competition is held over the course of a weekend from Thursday to Sunday or
Monday (for large events held over a long weekend). The initial days of racing consist of
qualifying heats to determine which drivers will compete in the final day of elimination racing on
Sunday or Monday. Among the 24 Mello Yello events, the most prestigious is the Chevrolet 15
Performance U.S. Nationals held in Indianapolis, Indiana over Labor Day weekend.
Preparations for televising Mello Yello events generally begin on Wednesday when
production trucks arrive at the track and fiber optic cables are laid by a small utility crew. The
Respondent uses two 53-foot tractor-trailer sized mobile unit trucks as production studios. The 20
remainder and bulk of the production crew arrive on Thursday to set up the cameras and the
trucks. Each day of racing is televised. In 2016, racing was televised by FOX on its national
channel and FS1.
During the 2016 season, the Respondent rented its two mobile production trucks from 25
F&F Productions, LLC (F&F). These mobile units were designated truck A and truck B. F&F
also provided two engineers to maintain the trucks. The F&F engineer-in-charge was William
West and the other F&F engineer was Kevin Pingel.
Truck A was divided into two sides by a large wall of monitors that could swing open to 30
allow people access from one side of the truck to the other. This monitor wall was generally
kept ajar so people could walk through. The production side in the front of truck A had three
rows of seats, including seats for Adelson, Skorich, Rokosa, and Sobczak. Skorich and
Sobczak sat in the first row (closest to the monitors), Adelson sat in the second row, and
Rokosa sat in the third row (closest to the front of the truck and farthest from the monitors). The 35
“tape side” in the back of truck A included seats for Hess, Dean, and West.7 Hess sat in front of
a smaller wall of monitors and equipment which was perpendicular to the primary wall of
monitors that divided the truck. Hess testified that Skorich sat about five feet from him. Two
EVS operators sat on either side of Hess and three more EVS operators sat in a row on the
other side of the monitors in front of Hess. Hess identified Dean, Dave Slain, Paul Lasky and 40
Bob Brackens as EVS operators who routinely worked with him (among others who worked on a
more sporadic basis). Dean was the lead EVS operator.
The equipment in the tape room of truck A included five EVS devices (also referred to as
replay machines) and a device called the Xfile 3. The EVS devices function as the primary 45

6 Although it was not entirely clear, I understood Gurrola to state that this has been her practice
before, during and after the 2016 racing season.
7 Although “tape” is a word still used to describe video and sound recordings, such content is no
longer stored on analog tape. Rather, it is stored digitally.
JD(NY)-16-18
5
computer server for storing video content and feeding it out for broadcast. Video content can be
loaded onto an EVS from various sources, including a live feed from cameras or pre-produced
clips (i.e., not live) stored and uploaded from a UBS drive.8 A UBS drive with pre-produced
content is plugged into the Xfile 3 so the Xfile 3 can convert the video file to a format compatible
with EVS software. The converted file can then be saved to a designated path location on an 5
EVS. Dean was primarily responsible for operating the Xfile 3.
Hess testified that the Xfile 3 was a “touchy system” which had problems about three or
four times throughout the first half of the 2016 season. The initial demo unit that came with
truck A failed during an event in early-February and F&F had to be swap it out for a new one. In 10
particular, the Xfile 3 would not always convert files into the EVS format. Hess found that mp4
files always converted to the EVS format, but other files did not. Therefore, when they had a
conversion problem, Hess used his own computer to convert the file to mp4 before, in turn,
using the Xfile 3 to convert the mp4 file to the EVS format. Hess and Dean testified that this
worked until September 5 (as described more fully below).15
Truck B housed equipment for graphics (among other things) and graphics coordinator
Piner was stationed there. Truck B also contained equipment called master control. Hess
testified that truck B was generally positioned about 10 or 15 feet from truck A.
20
The anticipated sequence of each show was prepared and plotted by the Respondent on
a document called the “rundown.” The rundown included a description of each segment of the
telecast, when the segment was expected to air, and the estimated duration.
On each day of broadcast, the Respondent held a morning production meeting attended 25
by the on-air talent and the mobile unit production crew. At these meetings, Adelson generally
reviewed certain key story lines and reminded the crew to capture the feeling and energy of the
event. Skorich then walked through the rundown line by line. Each member of the production
crew received a hard copy of the rundown to follow and use during the telecast.
30
During the actual show, Skorich called out directions for each segment through the
communication system. Production crew members listened to Skorich with their headsets, but
also looked ahead on the rundown to anticipate and be ready for each segment as the show
progressed. Nevertheless, unanticipated events occur on live broadcasts (e.g., a car crash) and
adjustments have to be made quickly. Hess was responsible for listening to Skorich’s direction, 35
monitoring the rundown, and cueing the EVS operators to play pre-produced clips or replays.
The Respondent hired local employees to work at events, but many employees travelled
to races from other locations. The Respondent compensated employees for their time in transit,
provided lodgings, and paid employees a per diem. Managers generally stayed in one hotel 40
while production employees stayed in another. However, during the entire 2016 season,
Sobczak and Brian Stoll, the Creative Director, stayed in the production crew hotel (instead of
the hotel with other managers).
The transition from ESPN was accompanied by a number of employee complaints45
regarding their working conditions. Production employees expressed dissatisfaction with the

8 Pre-produced content includes features and B-roll or filler. A feature is a lengthy clip which is
central to a narrative of the telecast, while B-roll is supporting material (such as pictures of the crowd or a
sunset over the track). For each event in 2016, a folder was created on an EVS for “on site features.”
JD(NY)-16-18
6
number, quality and variety of meals that were provided. Among several employees, Hess and
Dean complained to management about the food at the first race of the season in Pomona,
California. Skorich told Hess that lunch would not be provided. Hess responded that this was a
problem and Skorich needed “to fix that.”9 The Respondent also received complaints from
production employees about such things as their uniforms (employees wanted to wear shorts 5
due to the heat), the per diem, sharing rental cars, and certain safety issues (e.g., personnel
proximity to the track). Dean testified that he complained to Gurrola about the per diem at the
Charlotte, North Carolina race (held September 16-18) and that the per diem policy was
changed as of the next race in St. Louis, Missouri (held September 23-25).10
10
Gurrola testified that she attended the first race of the 2016 season in Pomona,
California (about a 15-minute drive from the Respondent’s headquarters in Glendora). At this
race, as others, she walked around and asked employees whether everything was alright and if
anyone needed assistance. Gurrola did not attend another event until the race in Charlotte,
North Carolina held September 16-18. Nevertheless, Gurrola testified that she learned of 15
employee complaints (referenced above) early in the season (during the first few months) from
managers who reported those complaints to her. Gurrola attended the last six races of the 2016
season beginning with the Charlotte race.
During the first half of the season, Hess had a few discussions with Skorich about 20
receiving the potential wage raise Adelson referred to when Hess was hired. In about early-
April, Skorich told Hess he wanted a few things done differently before they would be willing to
give him the raise. In particular, Skorich wanted more fan friendly “bumps to break” and shots
of driver access to fans (e.g., drivers signing autographs). In about early-June, Skorich told
Hess he would work on getting him the raise because Hess had done everything he was asked 25
to do in April. At the Denver race held July 22 to 24, Skorich told Hess “everything looked good”
for him to receive a raise from $50 per hour to $55 per hour effective August 1.
A job memo dated August 1, from Adelson to Hess, indicates that Hess was to receive a
pay raise from $50 to $52.50 per hour. Hess was given and signed this job memo on 30
September 1. The pay raise was not made retroactive to August 1. Adelson testified that he
considered Hess’s performance to be adequate as of the date Hess received the raise.
The Union Organizing Campaign
35
In early-August, Union representative John Culleeny learned from a friend that the
Respondent’s production employees were unhappy. Accordingly, Culleeny began to organize
them. On August 6, during the weekend of a race in Seattle, Washington, Culleeny held a
meeting at a restaurant near the hotel where production employees were staying. Six
employees attended the meeting, including Hess and Dean. All six employees signed 40
authorization cards.
Thereafter, Culleeny gave Dean and Hess blank authorization cards to distribute to other
employees. The Union also created an electronic link to a blank authorization card. Hess did

9 Dean testified that he complained about the food at races in Houston, Texas (April 29-May 1) and
Epping, New Hampshire (June 3-5). According to Hess, almost all the employees complained about one
particularly poor meal at the Houston race.
10 The Respondent also changed its policy of prohibiting camera operators from wearing shorts, but
the record evidence does not indicate when this change occurred.
JD(NY)-16-18
7
not distribute paper cards, but did send the electronic link to about four employees by text. The
record contains one such text exchange between Hess and freelance EVS operator Paul Kent.
Culleeny held a second organizing meeting during the weekend (August 18-21) of the
race in Brained, Minnesota and about 20 employees attended. This meeting was held at a 5
restaurant after work and was not particularly close to the production crew hotel. In fact,
employees had to take a boat to the meeting.

Culleeny held two more organizing meetings over Labor Day weekend (August 31-
September 5) at the drag race nationals in Indianapolis. These Union meetings were held on 10
Saturday (September 3) and Sunday (September 4) after work at the hotel where production
employees were staying. More specifically, the meetings were held in a party room off to the
side of the hotel bar. About 20 employees attended each meeting with people coming and
going throughout. The party room was situated about 20 feet from the bar and could only be
accessed or exited by walking past the bar. Culleeny, Dean and Piner testified that Sobczak 15
was sitting at the bar while the meeting was being held and in a position to see people walking
in and out. Piner testified that Sobczak nodded toward employees in acknowledgment as they
left the meeting. Hess attended both the Union meetings in Indianapolis, but did not testify that
he saw Sobczak at the bar.
20
Throughout the organizing campaign, Hess invited employees to Union meetings and
spoke up in support of the Union at those meetings. Hess also spoke to employees in support
of the Union in individual conversations with other employees. According to Hess, he had these
conversations “a little bit of everywhere,” including the hotel, in the car on the way to work, the
production truck, and the television compound. Hess did not testify that any manager, 25
supervisor or other agent of the Respondent was present at the Union meetings or was
otherwise in a position to overhear him talking about the Union. Likewise, the record contains
no direct evidence that any agent of the Respondent saw the text messages Hess sent to
employees with links to the Union authorization card or was otherwise in a position to witness
any other union activity engaged in by Hess. 30
On the morning of Sunday, September 4, Stoll told Adelson he overheard production
employees at the hotel talking about a union. Adelson asked Stoll for more information,
including who was involved. However, Stoll was vague and did not say anything more. Adelson
immediately told Rokosa, who happened to be waiting to tell Adelson he had heard the same 35
thing.11 Adelson directed Rokosa to notify Linda Louis, the Respondent’s General Counsel, and
Rokosa did so at about 1 p.m.
The Events of Labor Day, Monday, September 5
40
On Monday, September 5, the final day of racing at the U.S. nationals in Indianapolis,
the crew came in early (about 7 or 7:30 a.m.) for a production meeting. However, the trucks
were still locked from the night before. Normally, Hess would notify Skorich if there were any
problems with a segment on the rundown (e.g., a clip was unavailable). However, Hess did not
have access to any information on September 5 because the trucks were locked. 45

11 Rokosa testified that he learned about potential union activity among the employees third hand
from Frank Wilson of FOX. Wilson told Rokosa he heard this from FOX colleague Greg Oldham, who in
turn heard it from Stoll.
JD(NY)-16-18
8
The rundown for September 5 included the following segments:
Page Segment Estimated Duration Time
5.2 Visitor’s Guide to Indianapolis Feature 1:15 minutes 1:45:22 PM
7.3 Mello Yello in the Spotlight – JR Todd
and Crampton Workout Feature
2:00 minutes 2:07:24 PM
7.13 Del Worsham’s Mello Yello Car Feature 1:30 minutes 2:15:49 PM
10/6 Tony P Races Worsham in Toyota
Feature
1:05 minutes 2:55:41 PM
Adelson testified that segment 7.13, Del Worsham’s Mello Yello Car Feature, was
particularly important because it was about a special car designed to run in the race by the 5
Respondent’s primary sponsor.12 Rokosa testified that, on September 5, he was not aware that
the Mello Yello feature was especially important, but “came to find out later.”
Hess testified that, shortly after 10 a.m., on September 5, he attempted to load certain
video content onto the EVS system using the Xfile 3, but the Xfile 3 would not convert the video 10
to the EVS format. Dean was normally the person who operated the Xfile 3, but he was on a
meal break. Hess went to find Dean and had him try to load the video, but Dean was
unsuccessful. Hess then attempted to use his own computer to convert the file to an mp4
format before using the Xfile 3 to convert the file (as he had done successfully in the past), but
this failed as well. Hess and Dean notified West, but West was unable to load the content. 15
Hess walked to the front of the truck and told Adelson, Skorich and Rokosa (who happened to
be standing together) what happened. Rokosa immediately walked back toward the tape room.
Adelson and Skorich did not react as though the matter was of significant concern. Hess did not
recall the substance of the clips that were not converted or how many there were. According to
Hess, Stoll was ultimately able to load one or two of the clips on the system using the master 20
control in truck B, but the other clips were lost.
Dean testified that, on the morning of September 5, the Xfile 3 was unable to convert
video files to the EVS format. According to Dean, he notified Hess and West of the problem
around 8 or 9 a.m. Hess attempted to convert the files to an mp4 format before loading them 25
into the Xfile 3, but this did not work. West attempted to bypass the Xfile 3 by running a line to a
different source computer, but this failed as well. According to Dean, he told Skorich about the
problem and Skorich would have known because he sat so close to them. Dean recalled
Rokosa asking whether there was anything he could do. Dean did not know of anything Rokosa
could do since Rokosa was not an Xfile expert.30
Adelman and Rokosa denied they were made aware that clips were unavailable before
those clips were scheduled to air. Adelman and Rokosa also denied they were aware on
September 5 that the Xfile 3 had a problem converting the missing clips to an EVS format.
Adelson testified that, without prior notice, four clips (segments 5.2, 7.3, 7.13 and 10.6) were not 35
played on September 5. Rokosa testified that he was only aware of the missing Mello Yello clip
and did not know three other clips were missing. Skorich was not called as a witness.

12 The segment was referred to on the record as the Mello Yello clip.
JD(NY)-16-18
9
Among the Respondent’s managers, only Rokosa provided details as to what allegedly
happened in truck A when a clip failed to air on September 5. Rokosa testified that Skorich
called for a two-minute clip to be played and there was panic when someone reported that the
clip was unavailable. Rokosa did not know what the problem was or why the clip was missing.
Further, Rokosa did not recall Hess telling Skorich that the clip could not be played because of 5
an equipment malfunction. However, in an affidavit Rokosa provided during the Regional
investigation, he stated, “Skorich asked Hess to play a clip during the live air show. Hess could
not produce the clip. Hess told Skorich it was a hardware problem.” At the end of the day,
associate director Katie Stoll told Rokosa that the “clip existed.” Rokosa asked Stoll what she
meant, and she told him the Mello Yello clip was on the server. Rokosa asked Stoll to show him 10
where and she played it for him.13
The General Counsel introduced an F&F technical report completed by West for the race
in Indianapolis, which states in part as follows:
15
X-File 3 was not able to upload or download a MP-4 file we could trans code a
MOV file both ways, thinking that we may need to re-install the trans coding
software will talk with EVS in Charlotte Tac-12 Fiber cables we ripped apart by
sweeper (note Rokosa wants to keep damaged fiber).
20
During the trial, Rob Hedrick, the Respondent’s Director of Broadcasting Operations and
Post-Production Supervisor, printed screen-shots of portions of the computer folder referred to
as a “melt.” According to Hedrick, a “melt” is essentially a highlight reel of the best clips of the
day in a single piece that is sent to headquarters. I understood Hedrick to say that the particular
screen-shots in evidence show a list of segments in the melt for September 5 and the time the 25
Xfile 3 was used to convert and upload each segment onto the system. The list contains about
31 segments with times that range from 8:22 to 8:50 a.m., about 59 segments with times that
range between 10:13 and 11:44 a.m., and about 31 segments with times that range between
12:57 and 1:04 p.m. However, the list does not indicate any segments with times in the range
of 8:50 to 10:13 a.m. or the range of 11:44 a.m. to 12:57 p.m. Further, the list does not contain 30
the Mello Yello clip which failed to air on September 5.
Hedrick testified that Hess prepared the melt after each race. However, his basis for this
statement is not clear and a position statement submitted to the Region during the investigation
indicates that “Dean did ‘melts’ of video clips at the end of each weekend.”35
The Respondent’s Discharge of Hess
On about September 7 or 8, Rokosa received a call from Adelson and Skorich, who told
Rokosa that four clips did not air on September 5. Rokosa said at least one of the clips was on 40
the server and, for that clip, it was not a failure of the equipment.
In about the following week, Adelson and Skorich called Rokosa again and said they had
made the decision to discharge Hess. Adelson and Skorich wanted Rokosa to notify Hess of
the decision, but Rokosa demurred. Rokosa thought Adelson or Skorich should notify Hess45

13 The parties’ respective witnesses were not entirely consistent with regard to the events of
September 5. Hess and Dean appeared to have opposite recollections as to which one of them initially
attempted unsuccessfully to load the clips on the server and told the other. Meanwhile, unlike Rokosa,
Adelson did not testify that there was any panic in the production truck when the clips could not be
played. Indeed, Adelson did not otherwise evince a strong recollection of the events of September 5.
JD(NY)-16-18
10
because they supervised him and he did not. Rokosa testified that he was on the phone call as
a witness while Skorich notified Hess of the discharge.
On Wednesday, September 14, the day before Hess was scheduled to leave for the race
in Charlotte, he received a call from Skorich. According to Hess, Rokosa was not on the call. 5
Hess described the conversation as follows:
He called me and he said, hey, Nate, this is Pete. I said, hey, what's going on?
He said, I hate to do this, but we're going in a different direction as far as the tape
producer position. I said, effective when? He said, effective immediately. I 10
replied, you are aware the Xfile went down and that's why we didn't have the
video we needed for the Indy race? He said, yeah, but there were some other
issues on Friday and Saturday. And they felt things could have been organized
better. I said, okay. He said, again, I hate to do this, but this is the way we're
going. And said that he wasn't sure about getting paid for that weekend because 15
it was last minute. But that Rokosa and/or Marleen would be in touch, and we
would get that worked out.
On September 14, management had the following email exchange regarding Hess’s
discharge:20
On Sep 14, 2016, at 7:16 AM, Pete Skorich wrote:
Hello Team,
25
Mike and I tried to conference in Nate this morning but were unsuccessful in our
initial attempt to gain phone access with him. Mike subsequently left him a
voicemail and then I successfully got him on the phone at 6:05am solo.14
I told him that I had some bad news to deliver to him. After our struggles in Indy 30
with the tape room we have decided that we are going to make a change and
unfortunately he is no longer part of our future, He asked effective when? I told
him effectively immediately. He said "you do know we had a major equipment
malfunction on Sunday morning”, I told him that I was aware of that but our
difficulties were present as early as Friday, things were not able to be found, 35
there was a lack of organization and we never want to go through that again.
I told him he could follow up with Mike and or Marleen with any questions.
He seemed very calm about the situation, almost like he knew it was coming. 40
The call lasted about three minutes.

14 This email corroborates Hess’s testimony that Rokosa was not on the call when Skorich notified
him that he was being discharged. It would be less surprising to me if Rokosa failed to recall the phone
call than for him to “recall” a conversation in which he did not participate. His testimony in this regard
makes me question the accuracy of Rokosa’s testimony about the events of September 5 to the extent
his testimony was not corroborated by other managers. Likewise, although Hess and Dean were not
completely consistent in their testimony regarding the events of September 5, I find their accounts more
credible than then testimony of Adelson and Rokosa.
JD(NY)-16-18
11
From: Ken Adelson
Date: Wed, 14 Sep 2016 07:29:59 -0700
To: Pete Skorich
Cc: Mike Rokosa, Marleen Gurrola, Linda Louie
Subject: Re: NATE HESS5
Thanks Pete. I'll follow up with you later.
From: Ken Adelson 10
Date: Wed, 14 Sep 2016 07:46:26 -0700
To: Pete Skorich
Cc: Mike Rokosa, Marleen Gurrola, Linda Louie
Subject: Re: NATE HESS
15
For Marlene and Linda, FYI, I spoke with Frank Wilson from Fox last night and
we have his support on this as well.
From: Ken Adelson 20
Date: 9/14/16 10:48 AM -(6MT-05:00)
To: Mike Rokosa
Subject: FW: NATE HESS
Did anything new happen on Sunday? Beyond what we know about the X files 25
from earlier in the weekend? And also, Frank mentioned, Steve Onosku (sp)
was not happy about something, can you please find out.
30
From: Mike Rokosa
Sent: Wednesday, September 14, 2016 10:50 AM
To: Ken Adelson
Subject: RE: NATE HESS
35
No just the XFile. I will call Steve.
In an affidavit provided during the Regional investigation, Adelson stated that he “was
not aware of any problems with the Xfile 3 during Indianapolis.” At trial, Adelson’s testimony
was less clear. However, upon being presented with this email exchange, Adelson did appear 40
to say that he was aware of a problem with the Xfile 3 during the Indianapolis weekend.
According to Adelson, Hess’s failure to have certain clips available for airing “was out of
norm” and, in his 35 years of experience, had never happened before. Although hearsay,
Adelson testified that Clifford advised him that the primary sponsor (Mello Yello) was very upset.45
Dean was not disciplined or discharged in September and he worked for the remainder
of the 2016 season.
JD(NY)-16-18
12
Hess was replaced by Kent. Kent was a freelance EVS operator who worked in 2016 for
both the Respondent on racing events and for FOX on Detroit Piston games. Kent had no prior
experience as a tape producer before he replaced Hess.
The record does not clearly indicate how many races Kent worked for the Respondent in 5
2016. Adelson testified that Kent worked as an EVS operator “for most of the year,” but Hess
did not identify Kent as one of the EVS operators who worked for the Respondent on a regular
basis. Kent was promoted to tape producer for the race in Charlotte, North Carolina (held
September 16-18) and worked in the capacity the next two races before returning to FOX for the
Piston broadcasts.15 The record does not indicate who replaced Kent as tape producer for the 10
last three races of the 2016 season.
The Respondent’s Response to the Union Organizing Campaign
Gurrola attended the race in Charlotte. On the morning of September 16, a large 15
meeting was convened in the meal tent and was attended by about 150 event workers,
including the production crew. Clifford and the event management team also attended. Gurrola
gave a speech at this meeting and it was recorded by Dean. Gurrola’s comments included the
following:
20
I wanted to come out … and find out really how . . . it all the works and I ‘ll try to
do my best. I’ll be here till Sunday to get an opportunity to do that. But I also
wanted to talk about another really important thing that has come up and that is
the union ‘cause I know that some of you have been approached and talked to
about perhaps going in the union and I wanted to have the opportunity to tell you 25
what we think about it . . . .
You all have every right, and I don’t want to make any qualms about it, you have
every right to talk to a union rep, to engage in conversations with them and
[unintelligible] and even vote the union if that is what you chose to do. But . . . I 30
want to tell you what NHRA thinks about it or what I think about it as a matter of
fact in human resources. We don’t feel it is . . . a productive thing to a
relationship to get into. For starters . . . there are consequences, okay?
A lot of you may or may have not been asked to sign a card to join the union, and 35
by doing so, you should know a couple of things. One is that you are giving them
the right to represent you whether there is a vote or not a vote.
And we don’t want you to sign the card. We don’t feel there’s a need to do that.
Once you entered into – once there’s a union, there’s now a third party in our 40
relationship. If I right now, if you have issues or anything you wanted to discuss,
you can come to me. Bring them to our attention and we’ll . . . look into it. . . .
That’s what I do. You know, we’ve been . . . in existence for 65 years. We built
this business without a union. . . . [Y]ou can contact me via . . . my office phone,
email, I'll get back to you confidentially. I mean, give us an opportunity to fix 45
issues. . . . [W]e have good practices, good policies in place to help the

15 After Charlotte, Kent worked as the tape producer for the Dodge NHRA Nationals in Reading,
Pennsylvania held September 29 to October 2 and the AAA Insurance NHRA Midwest Nationals in St.
Louis, Missouri held September 23 to 25.
JD(NY)-16-18
13
employees, that's what my job is. I'm a hundred percent for you guys out there.
To make this a good working relationship between the two of us. When you bring
the union in, that model goes out the door. Just so you know.
There's a lot of you that are here, that may have been in a union at some point 5
and if so, you know, talk to your peers and find out whether a union worked for
them or not. There's a reason only seven percent of the private sector has unions
representing them. You know, do you really want to pay them to . . .
If they're making promises to you, get them in writing. Because . . . you wanna 10
know what are they going to do for you for the money you're going to pay them. I
mean that's how they stay in business, with dues, and you know, I guess back in
the olden days and in some industries, perhaps unions played a part in it and that
is back in the personnel days when you just sign papers. Now, we have a very
interactive process, and I want you to know that. I wanted to make sure you 15
know... I'm not going to remember all of you by name other than some of my
employees that I have, you know, full time that I know you know, talk to me. I'll be
around if you have anything privately you want to talk about or you wanna corner
me somewhere, I'm around. . . . That's one of the reasons why I came out. I
typically go to Indy but I had surgery, couldn't do it. Now, here this weekend . . . 20
and that's what 'I wanted to tell you. I really wanted to come in and communicate
that message to all of you . . . that you know what our position was on that and . .
. . to thank you for all of your hard work and doing a tremendous, tremendous job
and working very hard.
25
After she gave this speech, Gurrola walked around and met with groups of
employees. She asked employees whether they had any complaints and took notes on
their responses. According to Gurrola, she did not ask employees about the Union, but
did write down what employees said about a union if they mentioned it. Gurrola
attended the last six races of the 2016 season and took notes of her conversations with 30
employees at each one. The notes contain certain references to a union.
On October 20, the Union filed a representation petition in Case 22-RC-186622.
In addition to in-person speeches and discussions, Gurrola sent emails to 35
employees on October 25, November 7, 10, and 15, which urged employees not to
unionize. The Respondent also produced an antiunion video at some point in which
Gurrola and Kent appeared.
The Representation Case40
As noted above, on October 20, the Union filed a representation petition.
On November 3, a stipulated election agreement was approved and described the
bargaining unit as follows:45
All broadcast technicians employed by the [Respondent] including technical directors
(TD Technical Director), associate directors (AD Associate Director, AD Satellite Feed),
assistant producers (PRD Pit Producer, PRD Video Board), camera operators (HC Hard
Camera, HH Handheld Camera), audio technicians (A1 Audio Lead), audio 50
assists/assistants (A2 Audio Assist, SUB Sub Mixer), replay producers, videotape
JD(NY)-16-18
14
operators, digital recording device operators (EVS Replay Operator), video technicians
(V1 Senior Video, V2 Video Operator), video technician assistants (Video Assist),
graphics operators (VIZ Graphics Operator), graphics coordinators (GPSC Graphics
Coordinator), bug operators (Bug Operator), runners (RNR Runner), and utility
technicians (UTE Utility) performing work in connection with telecasting of live or 5
recorded racing events at remote locations; but excluding all office clerical employees
and professional employees, guards, and supervisors as defined in the Act, and all other
employees.
An employee in a unit classification was eligible to vote if he/she was employed during 10
two events for a total of 40 or more working hours over the 2016 racing season. The voter list
prepared by the Respondent contained the names of 99 employees. The Respondent did not
include Hess on the list because he had been discharged.
A letter dated November 8 from the Regional Director of Region 22 to Adelson contained 15
copies of the official Corrected Notice of Election. This contained “instructions to employees
voting by U.S. Mail,” and the following paragraph regarding ballots not received by employees:
Those employees who believe that they are eligible to vote and did not receive a
ballot in the mail by Tuesday, November 22, 2016, should communicate 20
immediately with the National Labor Relations Board by either calling the Region
22 Office at (973) 645-2100 or our national toll-free line at 1-866-667-NLRB (1-
866-677-6572).
The notice also included the following paragraph regarding the due date of ballots and 25
whether they would be counted:
All ballots will be commingled and counted at the Region 22 Office on Friday,
December 2, 2016 at 10:00 a.m. In order to be valid and counted, the returned
ballots must be received in the Region 22 Office prior to the counting of the 30
ballots.
On November 15, the NLRB mailed ballots to the production crew by United States mail.
Rokosa Email Regarding Hiring for the 201735
On November 15, Rokosa sent an email to the production crew which stated as follows:
Thank you for your work on NHRA TV during 2016!
40
The 2016 season was a new beginning for our sport. We created a strategic
plan and our number one goal was to improve TV. A big part of that plan was for
a team of NHRA employees to produce NHRA's TV, instead of an outside party.
You all came through and produced great TV this year. Thank you.
45
Now, we’re talking about 2017. We've learned so much this year and we want to
make next year even better. It is a jigsaw puzzle to schedule people for events
based on availability, needs, regions of the country, etc. The first step is your
availability.
50
JD(NY)-16-18
15
By November 23, 2016 (if you haven't done so already), please tell us by e-mall
to me (mrokosa@nhra.com) your availability for work next year, by event, or
simply say "all events" if that is the case (see our 2017 schedule here:
http://www.nhra.comi/schedules/2017.aspx).
5
If we do not receive an email with your availability by November 23, 2016, we will
understand that you do not want to work for NHRA in 2017.
Because we are In the midst of a union election, our hands are tied as far as
making offers for 2017. Once the votes are counted on December 2, if NHRA 10
wins the election, we will be able to let you know promptly when we can
schedule you to work during 2017, based on your availability and our needs. We
will also be able to confirm new terms for 2017. If the union wins the election, we
will be obligated to bargain certain terms for the 2017 season and we do not
know how long that might take. 15
When we are able to provide specific offers, we will do our best to make clear the
specific expected schedule of travel days and work days so that everyone can
plan accordingly.
20
Have a fantastic holiday season and again, thank you for all of your great work.
The Mail Ballot Election
Hess was not named on the voter list the Respondent prepared for the election and did 25
not immediately receive a ballot. On about November 21, Culleeny sent an email to employees,
including Hess, indicating that they should call the Region if they did not receive a ballot. This
email included the Region’s main telephone number - (973-645-2100). Accordingly, on
November 21, Hess called the Region and requested a ballot. Phone records indicate that this
call took two minutes. He subsequently received the ballot and mailed it back. Since Hess’s 30
name was not on the voter list, his ballot was challenged.
On December 2, the Region counted the mail ballots and prepared a tally of ballots.
This original tally of ballots showed 33 votes for the Union and 22 votes against representation.
An additional 17 ballots were challenged. Thus, 72 ballots were cast.35
On August 16, 2017, pursuant to an agreement of the parties as to the resolution of
challenged ballots, 14 of the previously challenged ballots were counted and an amended tally
of ballots was prepared. The amended tally of ballots showed 35 votes for the Union and 34
against representation. 40
In support of its objections, the Respondent called unit employees Todd Veney, Robert
Logan and Paul Kent to testify regarding troubles they had with their mail ballots. Although
Patrick Ward did not testify, the Respondent relies on records from the Board in asserting that
Ward was denied an adequate opportunity to vote as well.45
50
JD(NY)-16-18
16
Todd Veney
Veney did not receive his ballot from the Region until he returned from traveling after the
Thanksgiving weekend.16 On November 28 at 1:48 p.m., Veney mailed his ballot to the Region 5
by two-day priority mail and received a receipt with a tracking number. The receipt reflects a
“(USPS Tracking #) (9505 5126 7092 6333 0382 96)” and designates the “(Expected Delivery
Day)” as “(Thursday 12/01/2016).” The ballot was not stamped received by the Region until
December 5 and it was not counted. The record does not indicate that Veney or anyone else
attempted to use the postal service tracking number to track the parcel and determine when it 10
was actually delivered to the Region. Veney’s ballot was not counted.
Patrick Ward
Board records indicate that Ward requested replacement ballots on November 22 and 15
29, and the Region mailed replacement ballots to him on November 22 and 29. Ward’s return
ballot was postmarked December 1 and stamped received by the Region on December 9. The
ballot was not counted.
Robert Logan20
On about November 7, Logan was among a group of employees who received an email
from Gurrola regarding the process of the election. This email indicated, among other things,
that ballots would be mailed by the Board on November 15 and that “[b]allots received in New
Jersey later than November 30, 2016 will not be counted.” (emphasis in original.) 25
Logan was aware that ballots were being mailed by the Region on November 15 and
testified as follows with regard to his failure to receive one:
November 15th. And I waited about four of five days. And the weekend came, 30
and I still hadn't received my ballot. And when I found the number that they
provided us, I called the number and left a voicemail. And I was hoping that
somebody would respond. And then we got into the holiday season. And in
Detroit, I'm very busy with the parades and, you know, the Lions football game.
And then Friday and Saturday, I have high school championship games. I 35
cover four or five of the regional Fox sports. And so I finally called again on
Monday.
Phone records show that Logan called the Region’s main number twice on Wednesday,
November 23 at 11:31 and 11:55 a.m. (1 and 3-minute calls, respectively) and once on Friday,40
November 25 at 3:21 a.m. (2-minute call). According to Logan, these calls went directly to voice
mail and he left voice mail messages each time indicating he had not received a ballot.
Logan emailed Gurrola and Culleeny to inform them that he had not received his ballot.
On Saturday, November 26, Gurrola emailed Logan and suggested he “try emailing it AND 45
sending it to them via email so hopefully your vote will count. If you could mail it 2 day priority it
would be best.” Gurrola also prepared and included in her email to Logan a draft email from
Logan to Board agents Frank Flores and Eric Pomianowski (with the email addresses of those

16 The record does not indicate when Veney left to go on this trip.
JD(NY)-16-18
17
agents). The draft email indicated that Logan had not received his ballot, but wanted to vote
against Union representation. Logan did not send the email to the Board agents as Gurrola
suggested.
Logan later received an email from Culleeny with the direct number of Flores. On about 5
Monday, November 28, Logan called Flores. Logan claims that Flores told him the voice mail
associated with the telephone number Logan called on November 23 and 25 was not monitored
and that the Board was having problems getting ballots out nationally to the right people
because “addresses were messed up.” Flores told Logan he would send out a new ballot.
Board records indicate that the Region mailed a replacement ballot to Logan on November 28.17 10
Logan testified that he did not receive the first ballot until December 5 and the second
ballot until December 7. Logan did not testify that he returned those ballots and Board records
do not indicate the receipt of any ballot from Logan. Logan resides with his wife and daughter.
15
Paul Kent

By the time of the election, Kent had left the Respondent’s employ and returned to work
for FOX on the Detroit Piston productions. According to Kent, he was not paying attention to the
receipt of his ballot until he heard from other people in Detroit that they had received their 20
ballots and returned them. Kent contacted Skorich and Skorich suggested he email or phone
the Board. Skorich gave Kent the email address of Pomianowski and a phone number.
According to Board records, Kent left Pomianowski the following voice mail message on Friday,
November 25, 2016 at 11:32 a.m.:
25
Hey Eric my name is Paul Kent and, ah, I did not receive a ballot of the
NHRA union. I was hoping you could overnight me one [TEXT REDACTED IN
ORIGINAL] so again my name is Paul Kent. I'm sure you have all the information
but I did not receive my ballot for the NHRA union vote so I need one hopefully in
the mail today and I can either get it tomorrow or Monday and sent it right back 30
out Monday, so my phone is [TEXT REDACTED IN ORIGINAL].
Thank you.
Kent testified that he also sent Pomianowski an email requesting a replacement ballot.
35
Between November 25 and December 4, Kent was travelling away from home. His
neighbor generally collects his mail when he is not home.
Board records indicate that a replacement ballot was mailed to Kent on November 29.
40
Kent was home from December 4 to 6 and claims he did not receive the replacement
ballot during that time. He went back on the road December 6 and returned home on December
9. When he returned home, the ballot was among his mail. Kent mailed the ballot out on
December 10, but the ballot was not counted.
45

17 Logan initially testified that he called Flores on November 28, but subsequently testified that he
called him on November 30. Logan’s phone records for this time period were introduced into evidence,
but he did not attempt to identify on those phone records the call he placed to Flores. Since a
replacement ballot was mailed to Logan on November 28, I find it likely that he called Flores that day.
JD(NY)-16-18
18
ANALYSIS AND CONCLUSIONS
8(a)(1) Allegations
Gurrola Speech on September 155
1. Solicitation of Employee Grievances and Implied Promise to Fix Them
The General Counsel contends that the Respondent began soliciting employee
grievances during the Union organizing campaign and impliedly promised to fix them. I agree. 10
The mere solicitation of grievances during an organizing campaign is not unlawful and the
“Board will not draw an inference of implicit promise where solicitations are simply a
continuation of an ongoing established practice of soliciting employee grievances.” Manor Care
of Easton, PA, LLC, 356 NLRB 202, 220–21 (2010). However, the Board has rejected such a
defense in the following situations:15
The Board has ruled in the following situations that an employer cannot rely
on past practice to justify solicitation of employee grievances where the employer
significantly alters its past manner and methods of solicitation: soliciting
grievances more frequently than regularly done in the past, Grede Foundries, Inc. 20
(Milwaukee), 205 NLRB 39 (1973); searching out grievances more carefully than
before, Rotek, Incorporated, 194 NLRB 453 (1971); initiating group discussions of
employee grievances where the employer had merely discussed grievances on an
individual basis previously, Flight Safety, Inc., 197 NLRB 223 (1972); and the
installation of a suggestion box where one had not previously been located, H. L. 25
Meyer Company, Inc., 177 NLRB 565 (1969).
“The Board has long held that the essence of the violation in solicitation of grievances is
not the solicitation itself but the inference that the employer will redress problems.” Ace
Hardware Corp., 271 NLRB 1174 (1984). Thus, “[c]rucial to a conclusion of implied redress is a 30
finding that the employer interfered with, restrained, and/or coerced employees in their union
activities, which is manifested by such factors as change in past practice, announcement of new
policy, and timing and context of such change.” Id. Further, “an employer is not free during a
union campaign — regardless of its past solicitation practice — to solicit new grievances and tell
employees as to their grievances, ‘they would try to fix them;’ ‘[t]hey were going to try and solve 35
them in a timely manner’; ‘[t]hey were going to come up with solutions for these’; that some
issues ‘would not be fixed overnight’ but ‘[o]ther things, they were going to try to fix.’” Manor
Care of Easton, PA, LLC, 356 NLRB 202, 220–21 (2010).
Here, the totality of the circumstances warrant a finding that the Respondent unlawfully 40
solicited grievances and impliedly promised to correct them. However, preliminarily, I do not
agree with the General Counsel’s factual assertion that the Respondent began an entirely new
practice of soliciting grievances at the race in Charlotte, North Carolina. Gurrola testified that it
was her practice to walk around at events and ask employees whether she could be of
assistance. According to Gurrola, she always did this at events, including the first race of the 45
2016 season in Pomona (prior to the Union organizing campaign).
Nevertheless, the manner in which the Respondent addressed employee concerns in
response to the organizing campaign was considerably different than anything it had done in the
past. Gurrola gave a speech to all the event workers with CEO Clifford and other managers 50
present. The evidence does not indicate she has done this before or that Clifford previously
JD(NY)-16-18
19
came with her to events. The sudden appearance of the CEO and the Vice President of Human
Resources, who asked employees to “give us an opportunity to fix issues,” in the context of an
antiunion speech, would suggest to employees that the Respondent was taking their complaints
more seriously as a result of the organizing drive. Indeed, employees raised complaints about
their working conditions early in the season and the Respondent did not seek to address those 5
complaints until the Union arrived on the scene months later. Gurrola only came to one (the
first) of the first 18 races from February to September, but came to the last six races after
learning that employees might unionize. Further, after Dean complained to Gurrola about the
per diem policy (at the race Charlotte), the Respondent changed that policy as of the next race
in St. Louis. Under these circumstances, a reasonable employee would understand the 10
Respondent to be signaling a more receptive approach to resolving employee complaints if they
rejected the Union as their bargaining representative.
Based on the foregoing, I find that the Respondent violated Section 8(a)(1) of the Act by
soliciting employee grievances and impliedly promising to fix them.15
2. Threat of Unspecified Reprisals
The General Counsel contends that the Respondent unlawfully threatened employees
with unspecified reprisals by telling them there would be consequences if they joined the Union. 20
I do not agree. The broader context of Gurrola’s comment about “consequences” are as
follows:
You all have every right, and I don’t want to make any qualms about it, you have
every right to talk to a union rep, to engage in conversations with them and 25
[unintelligible] and even vote the union if that is what you chose to do. But . . . I
want to tell you what NHRA thinks about it or what I think about it as a matter of
fact in human resources. We don’t feel it is . . . a productive thing to a
relationship to get into. For starters . . . there are consequences, okay? Once
you entered into – once there’s a union, there’s now a third party in our 30
relationship. If I right now, if you have issues or anything you wanted to discuss,
you can come to me.
Gurrola expressly assured employees that they have the right to unionize before
mentioning that there would be consequences for doing so – i.e., the introduction of a third party 35
into the relationship between the Respondent and its employees. The consequences were not
unspecified and, as defined by Gurrola, did not constitute an unlawful threat. Gurrola did
proceed to unlawfully solicit grievances as a carrot for not unionizing, but did not suggest that
unionizing would be met with a retaliatory stick. Quite the contrary, as noted above, she
assured employees that they could talk to Union representatives and vote for the Union. 40
Accordingly, I will dismiss the allegation that the Respondent violated Section 8(a)(1) of the Act
by threatening employees with unspecified reprisals if they unionized.
3. Impression of Surveillance
45
The General Counsel contends, and I agree, that the Respondent created the
impression among employees that their union activity was under surveillance when Gurrola
made the following comments (emphasizing portions in italics):
I wanted to come out … and find out really how . . . it all the works and I ‘ll try to 50
do my best. I’ll be here till Sunday to get an opportunity to do that. But I also
JD(NY)-16-18
20
wanted to talk about another really important thing that has come up and that is
the union ‘cause I know that some of you have been approached and talked to
about perhaps going in the union and I wanted to have the opportunity to tell you
what we think about it . . . .
5
You all have every right, and I don’t want to make any qualms about it, you have
every right to talk to a union rep, to engage in conversations with them and
[unintelligible] and even vote the union if that is what you chose to do. But . . . I
want to tell you what NHRA thinks about it or what I think about it as a matter of
fact in human resources. We don’t feel it is . . . a productive thing to a 10
relationship to get into. For starters . . . there are consequences, okay?
A lot of you may or may have not been asked to sign a card to join the union, and
by doing so, you should know a couple of things. One is that you are giving them
the right to represent you whether there is a vote or not a vote. And we don’t 15
want you to sign he card. We don’t feel there’s a need to do that.
“The Board’s test for determining whether an employer has created an impression of
surveillance is whether an employee would reasonably assume from the statement in question
that his or another employee’s union activities had been placed under surveillance.” Flamingo 20
Las Vegas Operating Co., LLC, 359 NLRB 873 (2013) citing Mountaineer Steel, Inc., 326 NLRB
787, 787 (1998), enfd. 8 Fed. Appx. 180 (4th Cir. 2001) and United Charter Service, 306 NLRB
150 (1992).
The primary comment at issue is Gurrola’s statement, “I know that some of you have 25
been approached and talked to about perhaps going in the union . . . .”18 The comment is
troublesome absent an explanation from the Respondent as to how it learned this to be so.
Significantly, at the previous race in Indianapolis, employees walked in and out of a meeting
with Culleeny and saw Sobczak sitting at the bar. The General Counsel does not contend that
Sobczak was engaged in unlawful surveillance. However, employees could reasonably believe 30
from Gurrola’s comments and Sobczak’s presence outside the most recent Union meeting that
their activity was under surveillance. Under these circumstances, the onus was on the
Respondent to explain how it knew employees had been approached and talked to about going
union. United Charter Service, Inc., 306 NLLRB 150, 151 (1992) (employer did not explain to
the employees or show at the hearing that it ever was voluntarily given or had lawfully obtained 35
knowledge of union activity). It failed to do so and, accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act by creating the impression among employees that their union
activity was under surveillance.
Email from Rokosa to Crew40
The General Counsel contends that the Respondent acted unlawfully when Rokosa stated
in a November 15 email to the production employees that offers of reemployment for the 2017
season would not be made until that status of the union representation was resolved. The
relevant portion of the email reads as follows:45

18 In my opinion, the subsequent comment that “[a] lot of you may or may have not been asked to
sign a card to join the union” does little to add to the General Counsel’s case since it is speculative and
does not necessarily reflect something the Respondent knew.
JD(NY)-16-18
21
Because we are In the midst of a union election, our hands are tied as far as
making offers for 2017. Once the votes are counted on December 2, if NHRA
wins the election, we will be able to let you know promptly when we can
schedule you to work during 2017, based on your availability and our needs. We
will also be able to confirm new terms for 2017. If the union wins the election, we 5
will be obligated to bargain certain terms for the 2017 season and we do not
know how long that might take.
The Respondent contends that the statement by Rokosa is compatible with Board law,
but I disagree. The email indicates that the Respondent could not send 2017 job offers to 10
employees who worked during the 2016 season until the election was conducted and, if the
Union won, bargaining was concluded. However, the Respondent was legally entitled to make
job offers whenever it desired upon employees’ previous terms and conditions of employment.
The email as written would give employees the false impression that they could not be rehired
immediately because the Union petitioned for an election and, if the Union won, they would be 15
subject to an additional indefinite delay. In my opinion, this is a powerful and inaccurate
antiunion message. Accordingly, I find the that the Respondent violated Section 8(a)(1) of the
Act by advising employees that they could not be rehired for the 2017 season until the election
was held and, if the Union won the election, bargaining was completed. See Atlantic Forest
Products, 282 NLRB 855, 857-859 (1987) cited with approval in Lake Mary Health Care 20
Associates, LLC, 345 NLRB 544, 548 (2005).
8(a)(3) Allegation - Hess Discharge
The General Counsel contends that the Respondent discharged Hess because of his 25
union activities. I agree.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), “the General Counsel must prove that antiunion animus was a
substantial or motivating factor in the employment action. If the General Counsel makes the 30
required initial showing, the burden then shifts to the employer to prove by a preponderance of
the evidence that it would have taken the same action even in the absence of employee union
activity.” Baptistas Bakery, Inc., 352 NLRB 547, 549 fn.6 (2008). The elements of the General
Counsels initial burden “are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer.” Auto Nation, Inc., 360 NLRB 1298, 35
1301 (2014). Circumstantial evidence may be used by the General Counsel to meet its burden
of showing employer knowledge and animus. Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999); Montgomery Ward & Co., 316 NLRB 1248, 1253-1254 (1995), enfd. 97 F.3d 1448 (4th
Cir. 1996). Such circumstantial evidence may include the timing of alleged discriminatory
action, general knowledge of and animus toward employees’ union activities, failure to follow 40
past practice, disparate treatment of discriminatees, shifting or irrational explanations for the
treatment of discriminatees, and other contemporaneous unfair labor practices. Kitsap Tenant
Support Services, Inc., 366 NLRB No. 98, slip op. at 14 (May 31, 2018); Novato Healthcare
Center, 365 NLRB No. 137 (Sep. 29, 2017); Lucky Cab Co., 360 NLRB 271, 274 (2014).
45
Here, the record contains significant evidence that Hess engaged in union activity,
including the solicitation of support for the Union at meetings and elsewhere, the distribution by
text of electronic links to a Union authorization cards, and the dissemination of information
regarding Union meetings.
50
JD(NY)-16-18
22
The record also contains significant circumstantial evidence that the Respondent knew
of Hess’s union activity and discharged him on that basis.19 Initially, I note that the Respondent
admittedly wanted to identify employees who were engaged in union activity. When Adelson
learned from Stoll at the Indianapolis race that employees were discussing a union, he asked
Stoll which employees were involved. We also know the Respondent did not want its 5
employees to unionize and made certain comments to employees which exceeded the bounds
of legality. These facts tend to support a finding of knowledge and animus.
The timing of the Respondent’s discharge, shortly after it learned of the union organizing
campaign, also suggests knowledge and a discriminatory motive. The Respondent learned 10
about the organizing campaign on about September 4 and made the decision to discharge Hess
about a week later.
The timing is particularly suspicious because the discharge was implemented in an
abrupt and rushed manner without significant investigation. Adelman testified that the failure to 15
play four clips on September 5 was an extraordinary event that upset the Respondent’s primary
sponsor. Accordingly, it is reasonable to conclude that the Respondent would want to avoid this
ever happening again. Nevertheless, the Respondent did not talk to Hess, Dean or West about
what happened. Adelman and Rokosa summarily dismissed any concerns about mechanical
(as opposed to human) error without much explanation and despite the fact that they knew there 20
was a problem with the Xfile 3 over the weekend. That Rokosa allegedly found the Mello Yello
clip on the server after the conclusion of the show on September 5 does little to explain the
Respondent’s response to the situation.20 Three other clips which did not air were not found on
the server and no attempt was made to determine when the Melo Yello clip was uploaded or
how.21 Hess testified to his understanding that one or two of the missing clips were ultimately 25
uploaded through master control in truck B instead of the Xfile 3 in truck A. Even at trial,
Adelson and Rokosa were unable to explain exactly what happened to the missing clips on

19 I do not find it appropriate to, as the General Counsel urges, apply the Board’s “small plant
doctrine” for the purpose of attributing knowledge of Hess’s union activity to the Respondent. The drag
races were staffed by a large number of event employees dispersed throughout the track and Hess
engaged in most of his union activity outside the production truck (or away from the event entirely). The
truck was a small space that housed a small staff, but the record contains little information regarding
Hess’s protected activity inside the truck. Hess did not testify how often he spoke to people inside the
truck, to whom, and/or whether he did so openly without concern about the presence of management.
Although I do conclude herein that the totality of the circumstances warrant a finding that the Respondent
was aware of Hess’s union activity and discharged him on that basis, I do not rely on the small plant
doctrine to do so. BLT Enterprises of Sacramento, Inc., 345 NLRB 564, 575 (2005); Synergy Gas Corp.,
290 NLRB 1098, 1102 (1988); Aim Distribution System, 282 NLRB 485, 492 (1986); Volt Information
Sciences, 274 NLRB 308, 311 (1985).
20 It is notable, particularly in light of other questions I already have regarding Rokosa’s credibility,
that the Mello Yello clip was not on the list or “melt” of segments uploaded from the Xfile 3 to the EVS
server before the show on September 5. However, I do not find Rokosa’s testimony to be significantly
exculpatory even if it is credited.
21 Screen shots of the melt, which were obtained by the Respondent during the trial, indicate that
content was not loaded from the Xfile 3 to the EVS system from 8:50 to 10:13 a.m. This is about the time
period that, according to Hess and Dean, they had trouble with the Xfile 3. Admittedly, the same
document indicate that content resumed, sporadically, being loaded from the Xfile 3 to the EVS system
after 10:13 a.m. However, the Respondent did not even look at this information until the discharge of
Hess was being litigated. Accordingly, the Respondent did not determine what actually happened and
consider whether those facts warranted discharge in the first place.
JD(NY)-16-18
23
September 5. The Respondent’s rush to discharge Hess without a reasonable investigation of
the incident, shortly after it learned of an unwanted union organizing campaign, strongly
suggests knowledge of his union activity and a discriminatory motive for doing so.
Given that the Respondent was so rushed to be rid of Hess, it is not particularly 5
surprising that it failed to provide Hess with a contemporaneous reason for the discharge that
was consistent with its defense at trial. Skorich called Hess on September 14 and did not
contest Hess’s explanation that there was a major equipment malfunction. Rather, Skorich
ambiguously attributed the discharge to a lack of organization and an inability to find “things”
earlier in the weekend. Internal management emails following this call indicate that Adelman 10
and Rokosa were aware of a problem with the Xfile 3 at some point during the Labor Day
weekend. West’s event report also stated that there was a problem with the Xfile 3 during the
Indianapolis race. Yet, at trial, the Respondent attributed Hess’s discharge to his failure to play
the clips and rejected (without significant explanation) the issue of equipment malfunction. The
Respondent’s inconsistent and shifting reasons for discharging Hess are strong evidence of 15
pretext and, in turn, its knowledge of and animus toward Hess’s union activity.
The abrupt and ill-explained discharge of Hess is all the more suspicious given his
replacement – i.e., Kent. Adelson testified that, before the 2016 season, he took considerable
time to try to hire an experienced tape producer and considered Hess relatively inexperienced 20
even though he (Hess) spent half the previous year as tape producer on the same production
for ESPN. Adelson only hired Hess as the tape producer after two more experienced
individuals turned down the job. Therefore, it is considerably surprising that Hess was so
quickly replaced by Kent, who was an EVS operator with no tape producer experience. And
although Adelson testified that Kent was familiar with the Respondent’s operation, the record 25
failed to indicate how many shows Kent worked for the Respondent in advance of the Charlotte
race (when he replaced Hess). Hess did not identify Kent as an EVS operator who worked
regularly on the show. Moreover, Kent was only available to work as the tape producer for three
out of the last six events of the 2016 season because he returned to work for FOX. That the
Respondent suddenly promoted a person with no tape producer experience and limited30
availability, without having thoroughly investigated the incident which purported to disqualify
Hess for the tape producer position, is confounding and suggestive of pretext.22
I credit the testimony of Hess and Dean in their testimony that they notified management
of the Xfile 3 malfunction early in the day. First, the Respondent did not call Skorich to testify 35
and offered no explanation for its failure to do so. Its failure to explain the absence of a critical
corroborating witness undermines the credibility of the witness it did call and, in turn, suggests
that the Respondent has presented a pretextual defense. Automated Business Machines, 285
NLRB 1122, 1123 (1987).
40
However, one need not determine that Adelson testified in an intentionally false manner
to determine that the General Counsel’s theory of the facts is more likely. Adelson did not
appear confident in his recollection that Hess failed to provide advance notice of the missing
clips and did not specifically describe when or how he learned the clips were missing. Adelson
may simply have a poor recollection of this subject because he did not take significant note of 45
the problem at the time. This would be consistent with Hess’s testimony that Adelson did not
appear concerned when he was told about the missing clips and the Respondent’s failure to

22 It is also noteworthy that the Respondent did not offer the position to Dean (an alleged
discriminatee in the original complaint and participant in the organizing campaign) as Dean was the lead
EVS operator.
JD(NY)-16-18
24
mention the missing clips in explaining to Hess the reason for his discharge. Rokosa also
testified that he was unaware, on September 5, that the Mello Yello feature was especially
important and that three other clips were missing. Indeed, the evidence suggests that the
Respondent has attempted to elevate what, at the time, was a relatively minor incident that did
not warrant significant investigation into a dramatic act of misconduct for purposes of presenting 5
a pretextual defense at trial.
Based upon the foregoing, I find that that the General Counsel established a prima facie
case that the Respondent was aware of Hess’s union activity and discharged him on that basis.
This conclusion is warranted given the timing of the discharge shortly after the Respondent 10
learned of the organizing campaign, the abrupt nature of the discharge without significant
investigation, the sudden promotion of an EVS operator with no tape producer experience and
limited availability, the failure to offer a consistent explanation for discharging Hess, and other
evidence of pretext.
15
Having found that the General Counsel established a prima facie case, I consider and
reject the Respondent’s Wright Line defense. Adelson admitted that Hess’s performance was
adequate as of September 1, when Hess was granted a wage increase. The record does not
specifically indicate that Hess did anything wrong from September 1 to 5 other than, arguably,
his failure to air the missing clips. However, the Respondent cannot successfully claim it would 20
have discharged Hess because of the missing clips, regardless of his union activity, since the
Respondent did not actually attribute his discharge to those clips at the time. Rather, the
uncontested evidence indicates that, both internally and in talking to Hess, the Respondent
accepted Hess’s explanation that the clips were missing because of an equipment malfunction.
The Respondent is also, admittedly, in a difficult position to establish that its treatment of Hess 25
was consistent with prior discharges since the operation was new. Nevertheless, the
Respondent has the burden of establishing a Wright Line defense. Moreover, the second step
of a Wright Line analysis is not necessary if the Respondent’s stated reason for discharging the
discriminatee, as found above, has been rejected as pretextual. Parkview Lounge, LLC, 366
NLRB No. 71 (Apr. 26, 2018); K-Air Corp., 360 NLRB 143, 144 (2014).30

Based on the foregoing, I find that the Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Hess because of his union support and/or activities.
Respondent’s Objections35
The Respondent contends in its objections that four employees were denied the
opportunity to cast timely votes due to election irregularities caused by the Region and that the
election should be set aside because the disenfranchised employees were sufficient in number
to effect the election.23 More specifically, the Respondent contends that the Region’s mail intake 40
process failed since Veney sent his ballot by two-day priority mail on November 28 and it was
not stamped received by the Region until December 5. The Respondent also contends that the
Region failed to send replacement ballots to Logan and Kent in a timely manner even though

23 The Board’s rule on late mail ballots permits the counting of ballots that arrive after the due date
and before the ballot count, but excludes mail ballots that arrive after the count is conducted. Classic
Valet Parking Inc., 363 NLRB No. 23 (Oct. 23, 2015). The Board has acknowledged that this may result
in the exclusion of determinative ballots. Id. In its brief, the Respondent cites Board decisions which
have held that certain challenged ballots have been counted. However, this case involves objections (not
challenges) and a request for a rerun election with everything that a rerun election entails, including the
expungement of all ballots and additional delay.
JD(NY)-16-18
25
the employees attempted to contact the Region regarding their missing ballots. Finally, the
Respondent objects to the Regions handling of requests by Ward (who did not testify) for
replacement ballots. As discussed below, I reject the Respondent’s objections as a basis for
ordering a rerun election.
5
In Waste Management of Northwest Louisiana, Inc., 326 NLRB 1389 (1998), the Board
stated as follows:
It is well established that when the conduct of a party to the election causes an
employee to miss his opportunity to vote, the Board will set aside the results of 10
the election if the employee’s vote would have been determinative of the
outcome of the election. [Versail Mfg., 212 NLRB 592, 593 (1974); Sahuaro
Petroleum, 3066 NLRB 5886, 586-587 (1992).] When an employee does not
vote for reasons that are beyond the control of a party or the Board, however, the
failure to vote is not a basis for setting aside the election. [Versail Mfg., supra.]15
The burden is on the objecting party, in this case the Employer, to come forward
with evidence in support of its objection. [Sahuaro Petroleum, supra at 587.]
An employee, having been advised of the procedure and timing of the vote, maintains
some responsibility for overcoming obstacles and casting a ballot. Versail Mfg., Inc., 212 NLRB 20
592, 593 (1974). Thus, in Waste Management of Northwest Louisiana, Inc., supra, the
employer instructed an employee who was returning to work from disability to arrive for work at
8 a.m. (even though an election was scheduled to end at 7:30 a.m.). The employee arrived at
7:40 a.m., too late to vote. Nevertheless, the Board found that the employer was not to blame
for disenfranchising the employee because its sole obligation was to post the election notice. 25
The employer was not responsible for the employee’s failure to arrive earlier than 7:30 a.m. in
order to vote. In Visiting Nurses Association of Metropolitan Atlanta, Inc., 314 NLRB 404
(1994), an employee arrived at the voting site 15 minutes before the close of the polls (after
returning from work away from the facility). Before the employee could vote, she was called in
for a brief discussion with her supervisor. The Board found that the employee was not30
disenfranchised by the employer because she did not make every effort to proceed directly and
expeditiously from her brief conversation with her supervisor to the polling area. The Board has
long reasoned that there “must be some degree of finality to the results of an election, and there
are strong policy considerations favoring prompt completion of representation proceedings.”
Versail Mfg., Inc., 212 NLRB 592, 593 (1974).35
Veney
The record contains no evidence that the Region failed to mail Veney’s ballot on
November 15 and we do not know when the ballot was delivered to Veney’s house (since we do 40
not know when he left home to travel for Thanksgiving). We only know the ballot was waiting for
Veney when he returned home on November 28.
The evidence does suggest that either the U.S. postal service or the Region erred in its
handling of Veney’s ballot. Either the postal service took more than two days to deliver the 45
ballot to the Regional office or the Region failed to process the ballot in a timely manner.
Interestingly, the evidence failed to establish that Veney or the Respondent attempted to use
the tracking number on the postal receipt to track the package and determine when the ballot
was delivered to the Regional office. I do not note this to establish an inference that the ballot
was received by the Region, as stamped, on December 5. However, the burden of proving that 50
an employee was disenfranchised by the Board is on the objecting party and we do not have
JD(NY)-16-18
26
evidence that could be expected to resolve the matter (or, at least, some discussion on the
record as to why such evidence is missing). Under the circumstances, I do not find that the
Respondent met its burden of establishing that the Board’s mail intake process was the reason
that Veney’s ballot was not counted and I will not order a rerun election on that basis.
5
Logan
The evidence indicates that Logan was notified and aware of the time period allotted for
the Region’s receipt of mail ballots. The election notice specifically directed employees to call
the Board if they did not receive their ballots by November 22 and provided two phone numbers 10
for doing so. One was the Regional phone number which Logan first called on November 23
and the other was a national number that Logan did not call. Logan did not explain why he did
not call the national phone number. Likewise, Logan did not email two Board agents directly
after he was given their email addresses by Gurrola on November 26. Nevertheless, the
Region did mail Logan a replacement ballot on November 28. Logan testified that he became 15
busy around Thanksgiving because of work.
I do not find it optimal that Logan left voice mail messages for the Region on
Wednesday, November 23 and Friday, November 25, and a replacement ballot was not mailed
until Monday, November 28. However, Hess was able to successfully place a 2-minute call to 20
the same Regional phone number Logan used and receive a replacement ballot in time for him
to vote. Given Logan’s knowledge of the deadline for voting and the directive that employees
call for a replacement ballot if the original ballot was not received by December 22, it is hard to
argue that he could not have made additional efforts to reach the Board. Further, the Region
did mail a replacement ballot to Logan on November 28 in advance of the ballot count on 25
December 2. Under the circumstances, I do not believe that Logan’s failure to vote can be
attributed to the Board, and any issue regarding his failure to do so is outweighed by the interest
in a prompt completion of the representation proceeding.
Kent30
It is my opinion and I find that the same rational which applies to Logan applies to Kent
in that the situation required Kent to make more than a single call and send a single email to
obtain a replacement ballot. Like Logan, Kent did not attempt to call both numbers listed for the
Board on the election notice. As with Logan, although Kent was busy with work on a trip 35
between November 25 and December 4, it is hard to believe he had no opportunity to place an
additional call or calls to the Board during this time period. Further, since the evidence does not
indicate that Kent was making arrangements to obtain his mail between November 25 and
December 4, it does not appear that Kent would have been able to mail a timely ballot for
receipt before the December 2 count (even if a replacement ballot was mailed to him much 40
earlier). Finally, the Region did mail a replacement ballot to Kent on November 29 in advance
of the ballot count on December 2. Under the circumstances, I do not believe that Kent’s failure
to have his vote counted can be attributed to the Board, and any issue regarding his failure to
do so is outweighed by the interest in a prompt completion of the representation proceeding.
45
Ward
Ward requested replacement ballots on November 22 and 29, and the Region
immediately mailed ballots on those same dates. Ward did not testify and the record is silent as
to when he received the ballots or why he failed to mail a ballot earlier than December 1. 50
Although it does seem somewhat odd that the Region did not receive the ballot until December
JD(NY)-16-18
27
9, the delay cannot be attributed to the Board. Further, the lengthy period between the ballot
being postmarked (December 1) and being stamped received (December 9) matters little since
it is highly unlikely that a ballot mailed on December 1 would arrive at the Regional office in time
for the count on December 2. Accordingly, I do not find the evidence sufficient to establish that
the Board disenfranchised Ward and I will not order a rerun election on that basis.5
Conclusions of Law
1. The Respondent, National Hot Rod Association, is an employer within the meaning of
Section 2(2), 2(6), and (7) of the Act.10
2. The Respondent engaged in the following unfair labor practices within the meaning of
Section 8(a)(1) of the Act:
a. Solicited employee grievances during a union organizing campaign and impliedly 15
promised to fix them.
b. Created the impression among its employees that their union activity was under
surveillance.
20
c. Advised employees they could not be rehired for the 2017 season until the election
was held and, if the Union won the election, bargaining was conducted and
completed.
3. The Respondent engaged in an unfair labor practice within the meaning of Section 25
8(a)(3) and (1) of the Act by, on September 14, discharging Nathan Hess because of his union
support and/or activity.
4. The unfair labor practices committed by the Respondent affect Commerce within the
meaning of Section 2(6) and (7) of the Act.30
5. The Respondent’s election objections are rejected and do not constitute a basis for
rerunning the election conducted in Case 29-RC-186622.
6. Since Hess was unlawfully discharged, his challenged ballot should be counted.35
Remedy
Having found that the Respondents has engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist therefrom and to take certain affirmative action 40
designed to effectuate the policies of the Act.
The Respondent, having unlawfully discharged Nathan Hess, must offer him
reinstatement to his former job or if his job no longer exists, to a substantially equivalent position
without prejudice to his seniority or any other rights or privileges enjoyed. 45
The Respondent shall make Hess whole for any loss of earnings and other benefits
suffered as a result of his discriminatory discharge. The make whole remedy 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 50
JD(NY)-16-18
28
Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with King Scoopers, Inc.,
364 NLRB No. 93 (2016), the Respondent shall compensate Hess for his search-for-work and
interim employment expenses regardless of whether those expenses exceed his 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, and 5
compounded daily as prescribed in Kentucky River Medical Center, supra. In accordance with
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondent shall
compensate Hess for the adverse tax consequences, if any, of receiving a lump sum backpay
award, and, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of backpay is fixed either by 10
agreement or Board order, file with the Regional Director for Region 22 a report allocating
Hess’s backpay to the appropriate calendar year. The Regional Director will then assume
responsibility for transmission of the report to the Social Security Administration at the
appropriate time and in the appropriate manner.
15
The Respondent will be required to remove from its files any reference to the unlawful
discharge of Hess and notify him in writing that his unlawful discharge will not be used against
him in any way.
The Respondent shall be ordered to post the notice attached hereto as “Appendix.” 20
As I have found that the Respondent unlawfully discharged Hess, who cast a
determinative challenged ballot, I will recommend that the challenge to his ballot be overruled
and that it be opened and counted.
25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
Order
The Respondent, National Hot Rod Association, Glendora, California, its officers, 30
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for engaging in union 35
activity and/or supporting the International Alliance of Theatrical Stage Employees, Moving
Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada,
AFL-CIO, CLC (Union) or any other union.
(b) Creating the impression among employees that their union activity is under 40
surveillance.
(c) Advising employees that they could not be rehired for the 2017 season until the
election was held and, if the Union won the election, bargaining was conducted and completed.
45

24 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(NY)-16-18
29
(d) In any like or related manner interfering, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
5
(a) Within 14 days from the date of this Order, offer Hess reinstatement to his former
position or, if his position no longer exists, to a substantially equivalent position, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Hess whole for any loss of earnings and other benefits suffered as a result of 10
the discrimination against him in the manner set forth in the remedy section of this decision.
(c) Compensate Hess for search-for-work and interim employment expenses regardless
of whether those expenses exceed their interim earnings.
15
(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 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 20
Order.
(e) Within 14 days after service by the Region, post at its Glendora, California facility
copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by the Respondent’s authorized 25
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps 30
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business or closed, or are otherwise
prevented from posting the notice at the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since September 14, 2016.35
40

25 If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)-16-18
30
(f) Within 21 days after service by the Region, file with the Regional Director for Region
22 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
5
Dated: Washington, D.C. November 9, 2018
_____________________10
Benjamin W. Green
Administrative Law Judge
JD(NY)-16-18
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW UNDER SECTON 7 OF THE NATIONAL LABOR RELATIONS ACT 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge you for engaging in union activities and/or supporting the International
Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of
the United States, Its Territories and Canada, AFL-CIO, CLC (Union) or any other union.
WE WILL NOT solicit your grievances during a union organizing campaign and impliedly promise
to fix them.
WE WILL NOT create the impression that your union activities are under surveillance.
WE WILL NOT falsely advise you that you cannot be rehired for the next racing season until an
election is conducted among employees to determine whether you will be represented by the
Union or any other union, or falsely advise you that, if a union wins the election, you cannot be
rehired for the next racing season until bargaining is conducted and completed.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Nathan Hess full reinstatement to his
former job or, if his job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Hess whole for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest compounded daily.
WE WILL compensate Hess for the adverse tax consequences, if any, of receiving a lump-sum
backpay award and WE WILL file with the Regional Director for Region 22 within 21 days of the
date the amount of backpay is fixed, either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Hess and WE WILL, within 3 days thereafter, notify him in writing that this
has been done and that his discharge will not be used against him in any way.
JD(NY)-16-18
National Hot Rod Association
(Employer)
Dated By
(Representative) (Title)
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.
20 Washington Place
5th Floor
Newark, NJ 07102
Phone: 973-645-2100
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-185569 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, (862) 229-7055.