Sound One Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1995

317 N.L.R.B. 854 (N.L.R.B. 1995)

854
317 NLRB No. 125
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d. Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In sec. II,A,3, of his decision, the judge stated that the Respond-
ent’s general manager, Koch, informed Tejral of his layoff on De-
cember 10, 1991. Koch, however, notified Tejral of his layoff on
January 22, 1992. We correct the judge’s inadvertent error and find
that it does not affect our decision.
2 The Order and notice have been modified to conform to the
judge’s findings.
Contrary to the General Counsel’s request, we do not find that a
broad cease-and-desist order is warranted in this case. See Hickmott
Foods, 242 NLRB 1357 (1979).
Sound One Corporation and Motion Picture Studio
Mechanics, Local 52, International Alliance of
Theatrical Stage Employees, AFL–CIO and
Union Local 306, Motion Picture Projectionists,
Video Technicians and Allied Crafts, Inter-
national Alliance of Theatrical Stage Employ-
ees, AFL–CIO, Party to the Contract. Cases 2–
CA–25528, 2–CA–25656, and 2–CA–26121
June 14, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On February 7, 1995, Administrative Law Judge D.
Barry Morris issued the attached decision. The General
Counsel and Charging Party filed briefs supporting the
judge’s decision. The Respondent filed exceptions and
a supporting brief and the General Counsel filed an an-
swering brief. The General Counsel and Charging
Party filed cross-exceptions and supporting briefs, and
the Respondent filed a brief in opposition to the cross-
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order, as
modified.2
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) by refusing to bargain with
Motion Picture Studio Mechanics, Local 52, Inter-
national Alliance of Theatrical Stage Employees, AFL–
CIO (Local 52) until it withdrew its unfair labor prac-
tice charges against the Respondent. Without resolving
whether the Respondent’s vice president, Birnbaum,
stated on December 30, 1991, that the Respondent
would not negotiate until the charges were dropped—
which statement Birnbaum denied—the judge con-
cluded that because negotiations began in April 1992
without the charges being withdrawn, the General
Counsel failed to establish by a preponderance of the
evidence that the Respondent had unlawfully refused
to negotiate. The General Counsel and Charging Party
except, claiming that the Respondent unlawfully re-
fused to negotiate during the 4 months between
Birnbaum’s statement and the onset of bargaining.
We agree with the judge that the Respondent did not
violate Section 8(a)(5) as alleged. Even assuming that
Birnbaum stated that the Respondent would not bar-
gain until Local 52 withdrew its charges, the evidence
does not establish that the Respondent delayed negotia-
tions because of the charges. Indeed, on April 2, 1992,
the Respondent wrote Local 52 accusing it of making
little effort to ‘‘find an opportune time for us to sit
down to discuss the new contract.’’ In these cir-
cumstances, we agree with the judge that the General
Counsel failed to establish that the Respondent unlaw-
fully conditioned bargaining on Local 52’s withdrawal
of its charges or unlawfully delayed bargaining be-
cause of the charges.
Finally, we adopt the judge’s finding that the Re-
spondent did not unlawfully insist as a condition of
reaching agreement that maintenance employees be re-
moved from the Local 52 bargaining unit. Based on
the negotiations cited by the judge, as well as the June
26, 1992 bargaining session and the Respondent’s Sep-
tember 23 and October 8, 1992 letters to the Union,
we find that the evidence does not establish that the
Respondent insisted as a condition of reaching agree-
ment that maintenance employees be excluded from
the unit.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sound One Corporation,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Threatening its employees with discharge and
other unspecified reprisals and discharging its employ-
ees for activities protected by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
855SOUND ONE CORP.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with dis-
charge or other unspecified reprisals or discharge our
employees for activities protected under Section 7 of
the Act.
WE WILL NOT recognize or bargain with Union
Local 306, Motion Picture Projectionists, Video Tech-
nicians and Allied Crafts, International Alliance of
Theatrical Stage Employees, AFL–CIO (Local 306) as
the exclusive collective-bargaining representative of
the employees described below, unless and until Local
306 has been certified by the National Labor Relations
Board as the exclusive bargaining representative of any
such employees in an appropriate bargaining unit. The
employees are, as follows:
All of our employees not now members of an
IATSE Local who are working on, are capable of
or are authorized to work on an interchangeable
basis on the following functions: projection, dub-
bers, transfers, machine room operators as begin-
ners, apprentices or full scale journeymen (collec-
tively known as post production technicians).
WE WILL NOT give effect to the recognition agree-
ment and collective-bargaining agreement entered into
by us and Local 306 on August 21, 1991.
WE WILL NOT support and assist Local 306 or any
other labor organization by soliciting employees to
join, or distributing applications to join any such labor
organization, conducting meetings on company prem-
ises in support of such labor organizations and paying
employees for time spent and providing food and bev-
erages at such meetings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
WE WILL offer James Marchione immediate and full
reinstatement to his former position or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority rights and privileges,
and make Marchione and Andrew Tejral whole for any
loss of earnings, with interest.
WE WILL remove from our files any reference to the
discharge and layoff of Marchione and Tejral, respec-
tively, and notify them in writing that this has been
done and that the discharge and layoff, respectively,
will not be used against them in any way.
WE WILL withdraw and withhold all recognition
from Local 306 as the representative of the employees
described above unless and until it has been certified
by the National Labor Relations Board as the exclusive
representative of any such employees.
SOUND ONE CORPORATION
Burt Pearlstone, Esq., for the General Counsel.
Perry Heidecker, Esq. (Marshall M. Miller Associates), of
Lake Success, New York, for the Respondent.
Nicholas F. Lewis, Esq. and Lauren Esposito, Esq. (Lewis,
Greenwald, Kennedy, Lewis, Clifton & Schwartz, P.C.), of
New York, New York, for Local 52.
Jesse Strauss, Esq. (Reitman Parsonet), of Newark, New Jer-
sey, for Local 306.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City during 16 days of
hearing commencing December 6, 1993, and ending June 15,
1994. Upon several charges, the first of which was filed on
January 15, 1992, a consolidated complaint was issued on
April 2, 1993, alleging that Sound One Corporation (Re-
spondent) violated Section 8(a)(1), (2), (3), and (5) of the
National Labor Relations Act (the Act). Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
The parties were given full opportunity to participate, to
produce evidence, to examine and cross-examine witnesses,
to argue orally, and to file briefs. Briefs were filed by the
parties on August 29, 1994.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in New York City, has been engaged in
providing postproduction services to the film industry. Annu-
ally Respondent provides services valued in excess of
$50,000 at its facility for firms located outside the State of
New York. Respondent admits, and I so find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. In addition, it has been ad-
mitted, and I find, that Motion Picture Studio Mechanics,
Local 52, International Alliance of Theatrical Stage Employ-
ees, AFL–CIO (Local 52) and Union Local 306, Motion Pic-
ture Projectionists, Video Technicians and Allied Crafts,
International Alliance of Theatrical Stage Employees, AFL–
CIO (Local 306) are labor organizations within the meaning
of Section 2(5) of the Act.
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1991 unless otherwise specified.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Recognition and support of Local 306
Respondent has been engaged in providing postproduction
services to the film industry for over 20 years. On August
21, 1991,1 Respondent signed a recognition agreement with
Local 306 covering Respondent’s machine room operators,
effective from September 1 through December 31, 1996.
Sean Squires was employed at Respondent from August
1988 to June 1992 as a machine room operator. He appeared
to me to be a credible witness. He credibly testified that dur-
ing the week of November 4, Jeremy Koch, Respondent’s
vice president and general manager, told him that Koch had
signed an agreement with Local 306 and ‘‘they were forcing
him to hire all union employees.’’ Koch further told Squires
that ‘‘he had no choice and that I had to sign with Local 306
in order for him to continue to employ me.’’ Koch showed
him a document entitled, ‘‘Memorandum of Agreement’’ be-
tween Sound One and Local 306 and handed Squires a Local
306 authorization card. Squires then spoke to other members
of the machine room staff and they agreed to meet the fol-
lowing week. The machine room operators met on November
12 at which time they agreed to draft a letter to Koch re-
questing a meeting to discuss their dissatisfaction with the
Local 306 agreement. On November 18, the machine room
staff met with Koch. William Nisselson, studio manager, was
also present. Nisselson stated that he was ‘‘surprised’’ that
the machine room operators were unhappy with the Local
306 agreement and told the employees that they could have
their own copy of the agreement once they ‘‘signed with
Local 306.’’
On November 22, Squires was talking to several other em-
ployees about Local 52 and Squires mentioned that he
thought the Local 52 agreement was better than the Local
306 agreement. At that time Elisha Birnbaum, vice president
of Respondent, appeared. Squires credibly testified that
Birnbaum said ‘‘Local 52 was a weak union and that they
couldn’t do anything to help us.’’ Birnbaum continued ‘‘that
he thought that Doug Murray was the leader of the opposi-
tion of the employees to management and that Doug had
stabbed him in the back.’’ On the same day Peter Riley, ma-
chine room supervisor, handed Squires and Murray envelopes
containing Local 306 applications. Squires and Murray re-
fused to sign the applications. Squires then contacted the
Local 52 office and asked whether he was required to sign
a Local 306 application. After being told that he was not re-
quired to sign, Squires gave that information to James
Marchione, another machine room operator. During the week
of November 18, Squires joined Local 52. Around the same
time Marchione, Murray, and two other machine room opera-
tors, Harry Higgins and Andrew Tejral, also joined Local 52.
On December 4, Respondent distributed a memorandum to
the machine room staff advising them that Steve D’Inzillo,
a representative of Local 306, had requested a meeting with
the employees in Koch’s office. The meeting was scheduled
for December 5. The memorandum informed the employees
that overtime would be paid and that a sandwich platter and
sodas would be available during the meeting. Squires
credibly testified that at the meeting D’Inzillo stated that
‘‘certain pricks had gone to Local 52 and were causing trou-
ble.’’ Several of the employees asked questions about the
pay scale in the Memorandum of Agreement and ‘‘Mr.
D’Inzillo crossed out certain of the wages and increased
them by $50.’’
2. Discharge of Marchione
Marchione began his employment with Respondent on
March 3, 1989. From the fall of 1989 until his discharge he
was a machine room operator. On November 22, Riley left
an application for Local 306 on Marchione’s desk and told
him that it had to be signed before the meeting that evening
with D’Inzillo. Marchione did not sign the application. Later
that day Marchione told other machine room operators that
they were not required to sign the Local 306 application.
Riley then asked Marchione if ‘‘I knew what I was doing’’
and Marchione replied ‘‘the International’s now involved.’’
Riley then said ‘‘something to the effect of it’s your career.’’
Later that evening, as Marchione was preparing to leave the
facility, Riley told him that ‘‘there was a meeting upstairs to
which I was expected to attend, with Steve D’Inzillo of
Local 306.’’ Marchione replied, ‘‘I know about the meeting
and I’m not going.’’ At that point Marchione left the facility.
During the week of November 25, Nisselson told
Marchione that he wanted to talk with him. Marchione went
to Nisselson’s office and Nisselson told him ‘‘you know
Sound One is going union and that you’ll be required to join
Local 306 or else you won’t be permitted to work here.’’
Marchione told Nisselson that ‘‘I wasn’t planning on join-
ing.’’ The following week, again in Nisselson’s office,
Nisselson reminded Marchione that D’Inzillo had requested
a meeting with the machine room staff and told Marchione
that ‘‘you and this cabal are making a big mistake with this
lawyer thing and in the end it’s not going to matter any-
way.’’
On December 1, Nisselson telephoned Marchione at home
and told him that he had accrued many weeks of vacation
and that he was required to take it ‘‘effective immediately.’’
Marchione told Nisselson that it was unfair to require him
to take the vacation on such short notice and Nisselson re-
plied that he could start the vacation beginning December 9.
Marchione was accustomed to working out at a gym which
was down the street from the facility and he kept his gym
clothes in the machine room. On December 12, while
Marchione was on vacation, he came into the machine room
and changed his clothes. At the time, Ulysses Rivers, another
machine room operator, was in the room. On December 13,
Riley telephoned Marchione at home and told him that there
had been a complaint. Marchione replied, ‘‘what the fll
are you talking about?’’ Riley said that Rivers complained
that Marchione had ‘‘stripped in front of him.’’ Marchione
replied ‘‘he’s full of shit. I was changing into my gym
clothes. And that I had done so many times before.’’ After
some additional conversation Marchione told Riley ‘‘asshole,
bother me about this when I come back.’’ On December 23,
Marchione asked Riley about his Christmas bonus. Riley re-
plied that Respondent had sent him a letter and that ‘‘I’ll
need your keys.’’ Marchione credibly testified that the next
day Birnbaum told him ‘‘I believe that you’re telling the
truth about the events that took place’’ when he changed into
his gym clothes. Birnbaum continued to say that Marchione
857SOUND ONE CORP.
2 Citing pp. 1586–1587 of the transcript, Respondent’s brief main-
tains that Koch offered Tejral reinstatement on December 1, 1992.
Koch testified that on December 1 he told Tejral ‘‘I wanted to bring
you back.’’ This did not constitute a valid offer of employment. It
is well-settled that ‘‘an offer of employment must be specific,
uniquivocal, and unconditional in order to toll backpay and satisfy
a respondent’s remedial obligation.’’ Holo-Krome Co., 302 NLRB
452, 454 (1991).
3 Under all the circumstances, I do not believe that Koch’s ques-
tion to Marchione if he was doing this ‘‘of your own free will’’ con-
stitutes unlawful interrogation. See Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local
11 v. NLRB, 706 F.2d 1006 (9th Cir. 1985). In addition, General
Counsel maintains that Koch asked Marchione if he could hold him
responsible, and this constituted unlawful interrogation. The record,
however, does not show the statement to be a question. Instead,
Marchione testified that Koch told him ‘‘that means I can hold you
completely responsible’’ (Tr. 203). Rather than unlawful interroga-
tion, I have found this statement to be a threat of reprisal. Accord-
ingly, the allegation that Respondent engaged in unlawful interroga-
tion is dismissed.
‘‘had angered a lot of people by my actions on November
22 and that was the reason why I was terminated.’’
3. Layoff of Tejral
Tejral began his employment with Respondent in July
1987. From the fall of 1987 until his termination he was a
machine room operator. On November 22, Riley handed
Tejral a Local 306 application. Later in the day, when Riley
came to pick up the application, he noticed that Tejral had
not signed it, at which point Riley told Tejral ‘‘I hope you
know what you are doing.’’ Tejral had already signed an ap-
plication for Local 52 on November 21 and was sworn in on
December 10. Tejral credibly testified that on December 10,
Melvin Zelniker, Respondent’s chief engineer, had a con-
versation with Tejral in which he expressed his concern
‘‘that I had not signed Local 306 application for membership
[and] that he would hate to see something happen to me be-
cause I didn’t sign the application for 306.’’ At 5 p.m. that
same day Tejral was called to Koch’s office. Koch told
Tejral ‘‘I’m sorry, but we are going to have to lay you off.’’
Koch said that ‘‘business was declining’’ and that there was
‘‘nothing wrong with my work.’’ Tejral was offered rein-
statement on February 1, 1993.2
4. Maintenance classification
Respondent’s written proposal for a successor agreement
excluded the classification of maintenance men although this
classification was in the expired agreement. At the first bar-
gaining session held on April 26, 1992, Respondent’s rep-
resentative said that the classification was eliminated because
the maintenance men had never been in the Union. At the
session on June 26, 1992, the Local 52 representative asked
whether Respondent had changed its mind about maintenance
men. Koch replied ‘‘we were waiting for you, we have a
whole set of proposals, we were waiting for you to respond
to it.’’ At the next negotiating session which took place on
August 21, 1992, there was no discussion of the maintenance
classification. On October 8, 1992, Lawrence Milman, coun-
sel for Respondent, wrote to Edward Quinlan, counsel for
Local 52, that he believed that the negotiations were stale-
mated and that ‘‘the company will be implementing the
terms and conditions contained in its last contract proposal.’’
The final negotiating session took place on November 19,
1992. Again, there was no discussion of the maintenance
classification.
B. Discussion and Conclusions
1. Threats and interrogation
The complaint alleges that Respondent threatened employ-
ees with discharge if they did not support Local 306 and it
interrogated employees about their union activities. I credit
the testimony of Squires, Marchione, and Tejral, which was
largely corroborated by Koch, that in early November Koch
called them into his office one by one. Koch showed each
of the machine room operators a copy of the collective-bar-
gaining agreement with Local 306 which had been signed on
their behalf and a ‘‘collective-bargaining authorization.’’
Koch told the employees that they had to ‘‘sign with Local
306 in order for him to continue’’ to employ them. I find
that such conduct constitutes unlawful solicitation and a
threat to discharge employees in violation of Section 8(a)(1)
and (2) of the Act. See Jayar Metal Corp., 297 NLRB 603,
608 (1990); Montfort of Colorado, 256 NLRB 612 (1981),
affd. 683 F.2d 305 (9th Cir. 1982). During the week of No-
vember 11, the machine room operators sent Koch a letter
requesting a meeting to discuss their concerns. Koch asked
several of the employees if they knew about the letter and
asked Marchione if he was doing this ‘‘of your own free
will.’’ After Marchione replied in the affirmative, Koch said
‘‘that means I can hold you completely responsible.’’ I find
this constituted a threat of reprisal if Marchione continued to
oppose Local 306, in violation of Section 8(a)(1) of the Act.3
See Tubari Ltd., 287 NLRB 1273, 1281 (1988). In addition,
Squires credibly testified that on November 22 while he was
having a conversation with several employees, Birnbaum
came up to him and said ‘‘Local 52 was a weak union and
that they couldn’t do anything to help us.’’ Birnbaum contin-
ued to say that ‘‘he thought that Doug Murray was the leader
of the opposition of the employees to management and that
Doug had stabbed him in the back.’’ I find this statement to
be a threat in violation of Section 8(a)(1) of the Act.
2. Discharge of Marchione
After the machine room staff sent a letter to Koch request-
ing a meeting to discuss their concerns with Local 306, on
November 14 Koch questioned Marchione whether the letter
requesting the meeting was of Marchione’s ‘‘own free will.’’
After Marchione answered in the affirmative Koch told him
‘‘that means I can hold you completely responsible.’’ On
November 22, Marchione refused to sign the Local 306 ap-
plication and made it clear that he would not attend the
meeting with D’Inzillo. Local 52’s initial unfair labor prac-
tice charge was filed on November 25. On December 5,
Nisselson told Marchione ‘‘you and this cabal are making a
big mistake with this lawyer thing.’’ Indeed, I have credited
Marchione’s testimony that subsequent to his termination,
Birnbaum told him that he had ‘‘angered a lot of people by
my actions on November 22 and that was the reason why I
was terminated.’’
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In addition, on March 2, 1992, Respondent distributed letters
from D’Inzillo to Squires, Higgins, and Murray. These letters, which
were sent by interoffice mail or hand-delivered by Riley, advised the
(1982), the Board requires that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established the burden shifts to the em-
ployer to demonstrate that the ‘‘same action would have
taken place even in the absence of the protected conduct.’’
Marchione was terminated on December 19 just several
weeks after he refused to sign the Local 306 application and
refused to attend the meeting with D’Inzillo. Two weeks ear-
lier Nisselson had told him that he and ‘‘this cabal are mak-
ing a big mistake.’’ In fact, after the termination, Birnbaum
told him that he had ‘‘angered a lot of people’’ by his ac-
tions on November 22 and that was the reason why he was
terminated. I find that General Counsel has made a prima
facie showing sufficient to support the inference that pro-
tected conduct was a motivating factor in Respondent’s deci-
sion to terminate Marchione.
Respondent contends that Marchione was discharged be-
cause he changed clothes in front of another employee and
because of his language to his supervisor in a phone con-
versation the day after the incident. Marchione’s gym was
near the facility and Marchione credibly testified that for ap-
proximately a year-and-a-half prior to the discharge,
Marchione would regularly change into his gym clothes at
the facility approximately three times a week. He was never
warned about doing that or told not to do it. When Riley
called him the day after the incident Marchione stated that
‘‘I was pretty mad and I said, asshole bother me about this
when I come back’’ from vacation. The record is replete
with testimony that profanity was commonly used at the fa-
cility. Squires credibly testified that he told his supervisor,
Riley, ‘‘fl you,’’ and was not disciplined for that. I find
Respondent’s reasons for the termination to be pretextual.
See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982); Arthur Young & Co., 291
NLRB 39 (1988).
Riley testified that he had problems with Marchione going
back a year-and-a-half prior to his termination. The problems
consisted of lateness, absences, and insubordination. Riley
testified that for a long period of time Marchione was ‘‘real-
ly abusive’’ he would ‘‘tell me go fl myself.’’ Similarly,
Zelniker testified that Marchione was unsatisfactory from the
time he began his employment with Respondent. Yet, it was
not until soon after Marchione refused to sign the application
for Local 306 and refused to attend the meeting with
D’Inzillo that he was terminated. I find that Respondent has
not satisfied its burden under Wright Line, supra, of dem-
onstrating that the ‘‘same action would have taken place
even in the absence of the protected conducted.’’ Accord-
ingly, Respondent’s termination of Marchione violated the
Act.
3. Layoff of Tejral
On November 22, Tejral refused to sign the Local 306 ap-
plication given to him by Riley. The day before, Tejral had
signed an application with Local 52. Riley admitted that
prior to Tejral’s layoff he was aware that Tejral had not
signed with Local 306. In addition, Local 52 sent a letter to
Birnbaum on December 30 listing five persons who were ad-
mitted into membership in Local 52. The list included
Tejral’s name. I have credited Tejral’s testimony that in De-
cember Zelniker expressed his concern that Tejral had not
signed the Local 306 application and told him that ‘‘he
would hate to see something happen to me because I didn’t
sign the application for 306.’’ Based on the above, I find that
under Wright Line, supra, General Counsel has made a prima
facie showing sufficient to support the inference that pro-
tected conduct was a motivating factor in Respondent’s deci-
sion to lay off Tejral.
Respondent contends that Tejral was laid off pursuant to
a plan to lay off several employees because of a slowdown
in business. I credit Riley’s testimony that beginning in the
fall of 1991 there was a decrease in work at Respondent be-
cause of a producer boycott of New York City filmmaking.
Nisselson and Koch corroborated this testimony. With re-
spect to why Tejral was selected for layoff, however, Re-
spondent offers conflicting reasons. Thus, Riley testified that
while Tejral was a ‘‘good and efficient’’ worker he rec-
ommended Tejral’s layoff because Tejral had been telling
him that he wanted to get into a different area of the film
business, namely video. Similarly, Koch testified that Tejral
was laid off because he had an ‘‘attitudinal problem’’ and
that he was saying he ‘‘didn’t want to be there.’’ Yet,
Nisselson testified that among the reasons why Tejral was se-
lected for layoff was that he ‘‘wasn’t exceptional’’ and that
he was ‘‘grim.’’ When asked whether the fact that Tejral was
not ‘‘interested in working in a machine room in Sound One
for a long time’’ was a factor in Nisselson’s decision to lay
off Tejral, Nisselson replied ‘‘no, not at all.’’ The Board has
long expressed the view that ‘‘when an employer vacillates
in offering a rational and consistent account of its actions,
an inference may be drawn that the real reason for its con-
duct is not among those asserted.’’ Aluminum Technical
Extrusions, 274 NLRB 1414, 1418 (1985); F. W. I. L. Lundy
Bros. Restaurant, 248 NLRB 415, 428 (1980). Such an infer-
ence is warranted here. I find that Respondent has not satis-
fied its burden under Wright Line, supra, of demonstrating
that the layoff of Tejral ‘‘would have taken place even in the
absence of the protected conduct.’’ Accordingly, I find that
Respondent’s layoff of Tejral on January 22, 1992, violated
the Act.
4. Support and recognition of Local 306
The complaint alleges that Respondent rendered assistance
to Local 306 and granted recognition to, and entered into a
collective-bargaining agreement with, Local 306 notwith-
standing that it did not represent an uncoerced majority of
the unit employees. In early November 1991, Koch person-
ally distributed collective-bargaining authorizations on behalf
of Local 306 to the machine room operators. He told the em-
ployees that they ‘‘had to sign with Local 306 in order for
him to continue to employ’’ them. It is well established that
an employer violates Section 8(a)(1) and (2) of the Act by
soliciting its employees to sign authorization cards on behalf
of the Union. See Shenandoah Coal Co., 305 NLRB 1071,
1072–1073 (1992); Famous Castings Corp., 301 NLRB 404,
407 (1991). Similarly Riley’s solicitation of the machine
room staff to sign Local 306 union applications on Novem-
ber 22, 1991, constitutes unlawful assistance in violation of
Section 8(a)(1) and (2) of the Act.4
859SOUND ONE CORP.
recipients that unless they applied to join Local 306 by March 23,
1992, ‘‘this union will have no alternative but to require your em-
ployer to discharge you . . . .’’ I find that Respondent’s distribution
of these letter constituted unlawful assistance, in violation of Sec.
8(a)(1) and (2) of the Act.
5 These included James Marchione, Andrew Tejral, Sean Squires,
Douglas Murray, Harry Higgins, Terrance Laudermilch, Robert
Johanson, Ulysses Rivers, Roberto Fernandez, Paul Coburn, and
Kerry Kelly.
Respondent sponsored two meetings on its premises on
November 22 and December 5, 1991, where D’Inzillo met
with the machine room operators. Both meetings took place
in Koch’s office, they were announced by memos from man-
agement, management provided food and beverages free of
charge and employees attending were paid by Respondent for
the time spent at the meetings. These actions constituted as-
sistance and support of Local 306 in violation of Section
8(a)(1) and (2) of the Act. See Safeway Stores, 276 NLRB
944 fn. 2 (1985); Famous Castings Corp., supra, 301 NLRB
at 406–407; Kosher Plaza Supermarkets, 313 NLRB 74, 85
(1993).
Respondent recognized Local 306 as the exclusive bar-
gaining representative of the unit of machine room operators
at a time when Local 306 did not have the support of a ma-
jority of the unit. The record establishes that there were 11
machine room operators employed by Respondent during the
months of August, September, and October 1991.5 Of these
11, I credit the testimony of the 6 employees who testified
that they did not authorize any Union to represent them prior
to the time in which Koch told them that if they did not sign
they would face discharge. The record indicates that Kerry
Kelly never signed an authorization for Local 306. Thus, the
record establishes that at least 7 of the 11 machine room op-
erators did not support Local 306 at the time of the recogni-
tion in late 1991. Thus, Respondent recognized Local 306 as
the exclusive bargaining representative of its machine room
operators at a time when the Union did not represent a ma-
jority of the employees in that unit in violation of Section
8(a)(1) and (2) of the Act. See Ladies Garment Workers v.
NLRB, 366 U.S. 731 (1961); Jayar Metal Corp., supra, 297
NLRB at 608. In addition, the collective-bargaining agree-
ment entered into by Respondent with Local 306 contains a
union-security provision requiring covered employees to join
and remain members of Local 306 in order to retain their
jobs. It is well-settled Board law that such conduct violates
the Act, even if the union-security provision is never en-
forced. See American Tempering, Inc., 296 NLRB 699, 707
(1989).
5. Refusal to meet
The complaint alleges that Respondent refused to meet
with Local 52 for purposes of bargaining collectively for a
successor agreement unless the Union withdrew its unfair
labor practice charges. Robert Reilly and Frank Schulz, rep-
resentatives of Local 52, testified that on December 30
Birnbaum told them that ‘‘he would not negotiate with us
until we dropped our NLRB charges.’’ Birnbaum denied that
he made such a statement. In fact, negotiations began without
the charges having been withdrawn. I find that General
Counsel has not shown by a preponderance of the evidence
that Respondent refused to meet with Local 52 unless it
withdrew its unfair labor practice charges. Accordingly, the
allegation is dismissed.
6. Maintenance men classification
The complaint alleges that Respondent insisted as a condi-
tion of reaching any collective-bargaining agreement that
Local 52 agree to a contract proposal which removed mainte-
nance men from the existing unit. The first negotiation ses-
sion was held on April 26, 1992. Respondent’s initial set of
proposals deleted any mention of the maintenance employ-
ees. Quinlan, Local 52’s representative, mentioned that main-
tenance men were not in the proposal. Milman, Respondent’s
representative, replied that maintenance men had never been
in the Union and he would like the contract to ‘‘represent
reality.’’ Koch credibly testified that Quinlan asked whether
Respondent was refusing to bargain regarding the mainte-
nance men. Koch replied ‘‘we are not refusing to bargain
about it, we would like them out, but we have got a lot of
issues on the table.’’ Quinlan then said ‘‘we can’t go any
further, that will be all. You will be hearing from us.’’ At
the meetings held on August 21 and November 19, 1992,
there were no discussions of the maintenance classification.
There were no further meetings after the November 1992
meeting. I find that General Counsel has not shown by a pre-
ponderance of the evidence that Respondent insisted, as a
condition of reaching a collective-bargaining agreement, that
Local 52 agree to a contract proposal which removed mainte-
nance men from the existing unit. Accordingly, the allegation
is dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Sound One Corporation, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 52 and Local 306 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By threatening employees with discharge if they engage
in protected activities, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
4. By discharging James Marchione and by laying off An-
drew Tejral for their union activities, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. By rendering assistance and support to Local 306, Re-
spondent has engaged in unfair labor practices in violation of
Section 8(a)(1) and (2) of the Act.
6. By granting recognition to and entering into a collec-
tive-bargaining agreement with Local 306, notwithstanding
that Local 306 did not represent a majority of the unit, Re-
spondent has engaged in unfair labor practices in violation of
Section 8(a)(1) and (2) of the Act.
7. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent did not violate the Act in any other manner
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Tejral had been offered reinstatement on February 1, 1993.
7 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C § 6621.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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.’’
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged James Marchione and hav-
ing laid off Andrew Tejral in violation of the Act, I find it
necessary to order Respondent to offer Marchione full rein-
statement to his former position,6 or if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make whole Marchione and Tejral for any loss of earnings
that they may have suffered from the time of their respective
discharge and layoff to the dates of Respondent’s offers of
reinstatement. Backpay shall be computed in accordance with
the formula approved in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).7 In addition, Re-
spondent having rendered unlawful assistance to Local 306,
Respondent must cease recognizing and bargaining with it.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Sound One Corporation, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge and discharg-
ing its employees for activities protected by Section 7 of the
Act.
(b) Recognizing or bargaining with Local 306 as the ex-
clusive collective-bargaining representative of the employees
described below unless and until Local 306 has been certified
by the National Labor Relations Board as the exclusive bar-
gaining representative of any such employees in an appro-
priate bargaining unit. These employees are, as follows:
All of Respondent’s employees not now members of
an IATSE Local who are working on, are capable of
or are authorized to work on an interchangeable basis
on the following function: projection, dubbers, transfers,
machine room operators as beginners, apprentices or
full scale journeymen (collectively known as post pro-
duction technicians).
(c) Giving effect to the recognition agreement and collec-
tive-bargaining agreement entered into by Respondent and
Local 306 on August 21, 1991.
(d) Supporting and assisting Local 306 or any other labor
organization by soliciting employees to join, or distributing
applications to join any such labor organization, conducting
meetings on company premises in support of such labor or-
ganization and paying employees for time spent in providing
food and beverages at such meetings.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer James Marchione immediate and full reinstate-
ment to his former position, or if such position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges and make
Marchione and Andrew Tejral whole for any loss of earn-
ings, with interest, in the manner set forth in the remedy sec-
tion above.
(b) Remove from its files any reference to the unlawful
discharge and layoff of Marchione and Tejral, respectively,
and notify them in writing that this has been done and that
the discharge and layoff, respectively, will not be used
against them in any way.
(c) Withdraw and withhold all recognition from Local 306
as the representative of the employees described above un-
less and until it has been certified by the National Labor Re-
lations Board as the exclusive representative of any such em-
ployees.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amounts owing under the terms of this Order.
(e) Post at its facility in New York, New York, copies of
the attached notice marked ‘‘Appendix.’’9 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that those allegations as to which
no violations have been found are dismissed.