December 12, Inc.

DECEMBER 12, INC 1 December 12, Inc. and Harold D. Alexander. Case 31-CA-12661 30 November 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 5 June 1984 Administrative Law Judge Rich- ard J. Boyce issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel and the Charging , Party filed answering briefs. The National Labor Relations Board has 'delegat- ed its authority - in this proceeding to a , three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings;-' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative 'law judge and orders that the Respondent, December 12, Inc., Beverly Hills, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Ridge. This matter was tried in Los Angeles, California, on July 6 and 7, 1983. The charge was filed on December 1, 1982, by Harold D. Alexander, acting in his individual capac- ity (Alexander) The complaint issued on March 23, 1983, and alleges that December 12, Inc.' (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by discharging Alexander about October, 1, 1982.2 I The Company's name and the caption are as amended during the trial 2 Sec 8(a)(1) states that "It shall be an unfair labor practice for an em- ployer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 " Sec 7 states in relevant part "Employees shall have the right to self-organization, to forth, Join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities fcii- the purpose of collective bargaining or other mutual aid or prOtection FINDINGS OF FACT I JURISDICTION Respondent, located in Beverly Hills, California, is the corporate entity -formed around the vocalist Dionne Warwick (Warwick). She is its president and board chairperson Its annual revenues exceed $500,000, of which over $50,000 derives from performances else- where rthan in California:- - ,Respondent is an .employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act . -II. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts „From January 1980 until discharged on September 30, 1982, 'Alexander, a percussionist, Was one of six musi- cians providing instrumental accompaniment for War- wick: All six 'belonged to the American Federation of Musicians, Local 47 (AF of M); and, in Alexander's words, they looked to the AF of M "as the organization which determine[d] the conditions and terms under which [they] work[ed]." Respondent, however, was not signatory to a collective-bargaining agreement with the AF .of M at any relevant time. On September 29, 1982, Alexander returned to Los Angeles following a 49-day tour of Australia and the Orient' as part of the Warwick entourage.' On September 30, Respondent's accountant, Michael Donner, informed him by telephone' 'that Respondent was eliminating the payment to each 'musician of $75 for every travel day on Which there was no performance. The record indicates that such payments, designed to compensate the musi- cians for being precluded by travel from taking alterna- tive engagements, 3 were not universal in the industry; and is inconclusAie whether AF of M standards mandat- ed them. Donner further told Alexander that those to whom this was unacceptable no longer would work for Respondent. The other musicians received a similar mes- sage froth -Donner 4 Alexander responded to Donner that, while he would need some time to decide if this was acceptable, he thought it "unfair and . . . outrageous to suggest cuts in pay" when he had yet to reCeive a raise in almost 3 years- With Respondent and had "witnessed extremely ex- travagant spending of money by Ms. Warwick." He elaborated that, on the just-concluded tour, Warwick had piirchased an $800 ring as a gift for a Hilton Hotels offi- cial, in Australia, had bought cognac in Baccarat crystal at $200 to' $300 per bottle, and had spent $800 to fly excess baggage from Singapore to Bangkok Donner re- plied that' he had "been trying to tell [Warwick] to cool the spending." Later on September 30, Warwick received word from Marie Byars, Respondent's corporate secretary, that Al- 3 Respondent's musicians did not work exclusively for Respondent 4 Some, stopping over in Hawaii on their return from the tour, did not receive word until later Donner was acting on instructions from War- wick, transmitted from Hawaii 273 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exander had told Donner he did not "wish to contribute to [Warwick's] extravagance" by taking a pay cut. War- wick then called Donner, who told her that Alexander "was irate" at the prospect of a pay cut, and had said he did not "want to contribute to" her extravagance War- wick reacted: "Listen, if that's the way he feels about it you can call him and tell him that he's part of my ex- travagance and'I no longer need his services." With that, Donner called Alexander again, telling him that his "services were no longer needed" Alexander an- swered that he "did not accept being fired by"IDonner; that, if he "were indeed to be terminated," he wanted it in writing from Warwick. Warwick obliged with this letter, dated October 1: Harold: In lieu of the fact that you do not wish , to contrib- ute to my extravagances, the first cut in my, extrava- gances will be you. , Your services are no longer needed nor reqUired. Sincerely December 12, Inc /s/DW Dionne Warwick Alexander had served as "contractor" for the ,musi- cians during -the tour to Australia and the Orient. That entailed, among other things, preparing and submitting standard AF of M `:personal service" ,contracts on their behalf, which set forth their wage and fringe-benefit enti- tlements for specified radio and television appearances on the tour, And seeing that the contracts were honored.5 Alexander had been designated for this role, with the evident approval of the other musicians, by Respondent's musical director, Robert (Joe) KloeSs. The tour was not without incident for Alexander, as contractor. On August. 16, in anticipation of an appear- ance that day on the Don Lane television show in Mei- bourne, 8 Warwick called a meeting of the band in her Melbourne hotel suite During the meeting, directing most of her remarks to Alexander as "spokesman for the group," she asked that the musicians do her "a favor" and accept Australian scale, rather than the substantially higher U.S. scale, for the appearance. Alexander an- swered that that would mean "go[ing] against our uniOn" and the contract he , had "filled out" concerning that show Warwick rejoined that they were in Australia, that they could not "get United States scale when [they were] out of the country," and that all they would be able to get "is Australian tv scale." Alexander' replied that the AF of M was "aware of what [they] were -doing," inasmuch as he had "already filed" copies_ of the contracts with it, and that he and the others consequent- 5 These contracts. one of which is in evidence, were not between the musicians and Respondent, but rather between them and the producers. so called, of the performances The contract in evidence thus was be- tween the musicians, each of whom is named, and one 'Peter Gromotka, acting for the Sydney Hilton, a hotel, and concerns a 1-hour radio broad- cast on a program called "FM Radio Australia' 6 Alexander testified that the Don Lane Show is a ,"talk/variety show similar to the Johnny Carson show" ly "Could get fined" if they accepted less than the con: tracts called for Warwick, pointing a finger at Alexan- der, exclaimed that "the union stuff had to go" be- cause it was causing her too much "grief", that Alexan- der "had nerve" to protest Australian scale since she did not even need a percussionist; and _that, if he did .not "drop" his insistence of AF of M scale, he could find himself on a plane home—"the plane flies both ways" About , then, Wade Short, the -bassist, interjected that Alexander "was just doing what he had been asked to do" as contractor, and that they _"were subject to fines and suspensions . from the union if [they] didn't comply with [its] rules." Similarly, Steven Sullivan,' the keyboard player, remarked. "All he's doing is' . _his job, that's all That's why he's' so adamant " Warwick re- plied, "Fine, that's why I'm talking to [Alexander] During the meeting, as Well, Warwick thanked -three of the six, who had' indicated a willingness 4,3 accept Australian "scale, "for helping her out," observing - that she, "knew who her friends were" The meeting ended without -resolution otherwise. As Alexander _put it, it was decided to "do the show and continue the conversation at another time." A followup meeting was held the next day, August 17, in Warwick's hotel suite in Sydney. The atmosphere, "as recalled by Short,. was "much more amicable" , than',in the previous meeting _Warwick began by apolOgizing' to Alexander for her harsh words in Melbourne,- explaining that she had not understood "the position" the musicians "were in" with the AF of M, and that she now realized that he was only doing what he "had to do, or had been asked to do." 7 Alexander expressed acceptance of the apology, and it was settled that the musicians—including those who had agreed to a lesser scale—would receive AF of M scale for the entire tour, including the August '16 Don Lane' Show. The discussion then turned to a forthcoming ttip Europe. Warwick or Joe Grant, her personal manager, asked if there were some way "to get around" the AF of M as concerns overseas work, such as not filing copies of the contracts Alexander and Kloess answered that this "would probably be impossible, because those television shows are monitored so Well." Grant asked that Alexan- der supply him with an AF of M wage schedule _for the European tour; and the meeting ended, according to Short, with matters "up in the air" whether there would .be sufficient funding for that tour.8 Further with regard to the apology, Warwick testified "I [had been] made aware of the fact that, not only could a fine be levied, but the guys could be blackballed from the union They ,could. Just in, general, lose their livelihoods 8 The description of the Augiist 16 meeting derives from an amalgam of the unconflicting and credible testimony of Alexander, Short, and Sul- livan That concerning the August 17 meeting is based on their testimo- ny, plus that of Warwick Warwick testified variously that she could not recall a Melbourne meeting, that, she could remember only one meeting, that she "thought both of the meetiligs were in Sydney", and that, if there were two meetings, both were in Sydney Alexander, Short. and Sulltvan not only were eminently believable that there. ,was an August 16 meeting in Melbourne. but Warwick's testimony about the August ,17 meeting, particularly with respect to her apology, would ,have made no sense had there not been a prior meeting DECEMBER 12, INC 3 Alexander provided Grant with the requested informa- tion `a few days later" Nothing of note occurred thereafter until September 23, in Manila, when Warwick presented Alexander with a carved-wood hand depicting that gesture of contempt commonly known as "the finger" A card accompanying it, in Warwick's writing, stated. To Harold Let your finger do the talking. From Dionne Warwick testified that she "gave gifts to all of the members of [her] group," and that she chose this for Al- exander "because it was apropos to" him. She elaborated that it was given "in jest," both Alexander and she haVing "a warped sense of humor." She also explained that Alexander "received the finger because he always gave [her] the finger." 9 • Asked the reason for Alexander's discharge, Warwick testified that "she had no more use for his expertise." She enlarged that -he "was a luxury"; that "the kind of show that [she does] does not .necessarily require a per- cussionist"; and that "percussionists are available" on an as-needed basis. She later testified that the remark report- edly made by Alexander to Donner about not wishing to contribute to her extravagance was "typically Harold", that she "didn't need that around [her]—a negativity"; that she does not "function well around negative action"; and that, she consequently "felt that it was time to elimi- nate that." Regarding the timing of the discharge decision, War- wick initially testified that it was made while she "was still in Australia"—whether before or after the Don Lane Show she could not be sure—incidental to a telephone conversation with- Donner in Los Angeles in which he impressed upon her' "the kind's of dollars [she] was spending" and that "the extravagance of the payroll . had gotten beyond control" She testified elsewhere that the decision was made October :1—the day she composed the termination letter As earlier set forth, she instructed Donner on September 30 to tell Alexander he no. longer would be needed Warwick averred that Alexander's stand in Australia concerning AF of M scale had "nothing whatsoever [to do] with [her] firing him." With respect to those encoun- ters, she testified I believe he was doing something he felt absolutely right to do. Harold is a union person . . . [T]hat was established inside the group when he first joined it . He was making me aware of the ac- tuality of it all. He was not going to perform under any other circumstances, -other than what the union said he had to perform under That's what he, was doing. Asked by Respondent's counsel what other economies had been effected in the fall of 1982, besides terminating 9 Warwick testified that she meant this Itterally, i e, that Alexander indeed had made the Physical gesture to her at times She was unable, however, to recall a specific Instance Alexander and eliminating the $75 allowance for nonper- formance travel days, Warwick testified that she reduced the salaries of Respondent's office staff, cut the amounts spent on herself "drastically," and discharged her full- time lighting technician, giving those duties to her road. manager. To counsel's question if there were any other discharges, she testified, "I can't think of anybody else." Then, led by counsel, she asserted that she also released her sound man and her wardrobe man; and later,_ ques- tioned by counsel for the General Counsel, she testified that she let her makeup lady and her hair stylist go, as well. Except for that of the lighting technician, Respond- ent did not supply precise dates or other details of these several alleged discharges Respondent has used percussionists from time to time, but not regularly, since Alexander's discharge Warwick testified that he was hired specifically for an "Earth, Wind, and Fire" medley; and that, after the discharge, "we did not do that particular medley any longer." B. Conclusion and Reasons In Wright Line, 251 NLRB 1083, 1089 (1980), the Board stated: [We] shall henceforth employ the following causa- tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning On employer motivation First, we shall require that the General Counsel Make a prima facie showing suffi- cient to support the inference that protected con-, duct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.' ° It is concluded that the General Counsel has made the requisite prima facie showing Thus: (a) Alexander's insistence during the Melbourne and Sydney meetings that AF of M scale be paid, asserted in his role as contractor on behalf of the several musicians, was an.activity protected by the Act (b) Warwick resented that' activity mightily, as wit- nessed, by her remarks to Alexander On August 16 that "the union stuff . . had to go," that Alexander "had nerve" to protest Australian scale since she did not even need a percussionist, 'and that he could find himself on a plane home if he did not "drop" his insistence on AF of M scale (c) Despite Warwick's August 17 apology to Alexan- der, her resentment of his protected activity persisted, as is shown by her bestowal on him of the carved-wood "finger," together with the let-your-finger-do-the-talking note, more than a month after the Melbourne and 1 ° This formulation received Supreme Court approval in NLRB v Transportation Management Corp. 462 U S 393 (1983) " That Alexander's activities occurred outside the United States did not render them any less protected Cf American President Lines, 267 NLRB 1198 (1983) DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sydney meetings and about a week before the dis- charge.'2 (d) Resolution of the pay issue for purposes of the tour then in progress did not remove Alexander as a likely future irritant on the subject. In-the Sydney meeting, Re- spondent was still looking for ways "to get around" AF of -M scale on the coming European tour; and Warwick, aware that Alexander "was not going to perform under any other circumstances, other than what the union said he had' to perform under," doubtless viewed him as an impediment to that objective.' (e) Warwick_ admitted at one point that the discharge decision was made while she "was still in Australia", and her additional testimony that she was not sure if it was before or after the Don Lane Show indicates probable nexus between the decision and Alexander's protected activity on August 16 and 17 As concerns Respondent's burden, -the discharge seem- ingly was triggered by, the report to- Warwick on Sep- tember 30 that Alexander had protested to Donner that he did not want to "contribute to [her] extravagance"—a protest that hardly can be said to have been protected, '3 Then there was Warwick's testimony that the decision was prompted by Donner's call to her in, Australia that "the extravagance of the payroll . had gotten beyond control"; and, elswhere, that Alexander was discharged because she "felt that it was time.to eliminate" his "nega- tivity.'! - It is concluded, on consideration of these elements, that Respondent has failed to overcome the General Counsel's prima facie showing that protected conduct was a motivating factor in the discharge; and, therefore, that the discharge did violate Section 8(a)(1) as alleged. The reasons for Respondent's failure are these: (a) Warwick's admission that the discharge decision was made in Australia reveals that the September 30 report was seized on as a pretext; or, at the very least, would not have provoked the action without the impetus of the earlier, protected activity (b) Warwick's later testimony that the decision was made October 1, apart from the harm done generally to her credibility, undermined her assertion that the deci- sion was grounded on Donner's call to her in Australia about an untoward economic situation. (c) The economic defense suffered additional damage from the unconvincing character of Warwick's recital— in terms of both demeanor and testimonial content— about the several discharges and other steps supposedly effected in the name of frugality." (d) Finally, Warwick's testimony that Alexander was discharged because of his "negativity" further detracted from economics as the motivation That testimony came across, moreover, as an allusion to Alexander's protected insistence that AF of M standards be observed no less than to his comment about not wanting to contribute to 12 Warwick's testimony that Alexander "received the finger because he always gave [her) the finger" belied her testimony, elsewhere, that she gave him the carving "in Jest" 13 See Meyers Industries. 268 NLRB 493 (1984) 14 Warwick is believed that the lighting - technician was discharged Her testimony about other discharges, Alexander excluded, was vague, heavily dependent on leading, and thus unconvincing Warwick's extravagance Indeed, Warwick's depiction of Alexander's comment about her extravagance as "typi= cálly Harold" reveals that more was involved than that one comment.'5 CONCLUSION OF LAW By discharging Alexander on September 30, 1982, as found herein, Respondent violated Section 8(a)(1) of the Act. - On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, December 12, Inc, Beverly Hills, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against employees for insisting on behalf of themselves -and their coworkers that Respondent observe pay scales and other' terms and conditions of employment in conformity with the standards of the American Federation of Musicians. (b) In any like or related manner interfering Ninth', re- straining,' or coercing employees in the' exercise of the rights gnarariteed them by Section 7 'of the Act' 2. Take , the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Offer to Harold D. Alexander immediate and full reinstatement to his former job or, if that job no, longer exists, to a substantially equivalent job, without prejudice. to his seniority or any other rights or privileges, and make him whole for any loss of earnings and other bene- fits suffered as a result of the unlawful discharge of.him, with interest on lost earnings 17 (b) Expunge from its files any reference to -the dis- charge of Alexander which occurred September 30, 1982, and notify him in writing that this has been done and that 'evidence of that unlawful discharge will not be used as a basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll' records, social security payment records, timecards,' personnel records and reports, and all other records neê- essary to analyze the amount of backpay due under the terms of this Order. 15 In Winn-Dixie Greenville, 157 NLRB 657, 662 (1966), the Board found a management reference to a dischargee's "negative attitude" to be an indirect reference to the dischargee's union activity In Virginia Metal- crafters. 158 NLRB 958, 962 (1966), the Board found a like correlation with respect to a dischargee's supposed "bad attitude" 16 All outstanding motions inconsistent with this recommended- Order are denied If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended 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 " Backpay is to be computed in accordance with F W Woolworth Go, 90. NLRB 289 (1950), with Interest to be computed as set forth in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) DECEMBER -12, INC 5 (d) Post at its offices in Beverly Hills, California, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tioilal Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board 'S 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. 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 protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against employees for insisting on behalf of themselves and their coworkers that we observe pay scales and other terms and conditions of employment in conformity with the standards of the American Federation of Musi- cians. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Harold D. Alexander immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or any other rights or privi- leges, and WE WILL make him whole for any loss of earnings and other benefits suffered as a result of the un- lawful discharge of him, with interest on lost earnings. WE WILL expunge from our files any reference to the discharge of Alexander which occurred September 30, 1982, and WE WILL notify him in writing that this has been done and that evidence of that unlawful discharge will not be used as a basis for futute personnel action against him. DECEMBER 12, INC.