American Girl Place New York

AMERICAN GIRL PLACE NEW YORK 355 NLRB No. 84 479 American Girl Place, Inc. d/b/a American Girl Place New York and Actors’ Equity Association. Case 2–CA–37791 August 13, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER On August 10, 2007, Administrative Law Judge Ste- ven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and cross-exceptions with a supporting brief. The Charging Party filed cross- exceptions and a brief in support of its cross-exceptions and in opposition to the Respondent’s exceptions. The Respondent filed a reply brief and an answering brief to the General Counsel’s and Charging Party’s 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 decided to affirm the judge’s rulings,1 findings,2 and conclusions, as modified, and to adopt the recommended Order as modi- fied and set forth in full below. The judge found, among other things, that the Respon- dent unlawfully suspended the process of considering a wage increase for its employees. For the reasons set forth below, we adopt the judge’s finding of a violation, but we will modify the judge’s remedy to accord with the circumstances of the case. The facts are fully set forth in the judge’s decision. Several weeks before any union activity in 2006, adult actors performing in shows staged at the Respondent’s New York retail store spoke to their supervisor, Artistic Director Heather de Michele, about an increase in the wage paid actors for each show. De Michele said she would bring the matter to her superiors’ attention. De Michele immediately addressed the actors’ request with her supervisor, Director of Theatre Scott Davidson. Sev- 1 The parties have excepted to the judge’s failure to consider GC Exhs. 8, 9, and 10 in his decision, based on his finding that they are arguably subject to the attorney-client privilege and the attorney work- product doctrine. We find it unnecessary to pass on those exceptions. We have reviewed the disputed exhibits, and they would not materially alter our understanding of the facts. 2 The parties have excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administra- tive law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. eral phone conversations and emails were exchanged among de Michele, Davidson, and Director of Human Resources Christine Warman. Those communications explored possible increases in the per show rate of the adult actors. De Michele’s last email message to David- son and Warman concerning the wage increase, dated May 7, contained a chart listing the “current” and the “proposed change” in the rate. In the “proposed change” category, each of the actors was listed as receiving a $6- per-show raise. Meanwhile, on May 3, the Union sent the Respon- dent’s president, Ellen Brothers, a letter requesting rec- ognition as the representative of the Respondent’s adult actors at the New York store. Around the first or second week of May, Employee Relations Manager Dawn Levenick became aware of the Union’s request. About the same time, Warman informed Levenick that there were ongoing discussions concerning a wage rate in- crease for the actors in New York. Levenick instructed Warman not to increase the rate until legal counsel was obtained. Levenick also set up a management team and secured counsel. The management team decided to post- pone any more discussion or decisions about a wage in- crease until the matter of representation was resolved. It also decided that de Michele and Director of Human Re- sources for New York Patricia Keating would meet with the adult actors to inform them of the decision to post- pone further consideration of an increase. De Michele and Keating met with the New York adult actors on June 18. During this meeting, de Michele told the actors that the Respondent had been “completing the process” of the wage increase when the Union appeared on the scene. De Michele further stated that even though the wage increase had been previously discussed and agreed on, it was not final due to one missing signature, and that once the Respondent received the letter from the Union, everything was put on hold. Neither of the Re- spondent’s officials gave any assurance to the actors that the process of considering a wage increase would resume regardless of the outcome of the Union’s campaign. Nor did they say that the process had been halted for the sole reason of avoiding the appearance of a bribe to influence the employees’ choice on union representation. To the contrary, de Michele referred to the union T-shirts the actors were wearing and said, “now that we see where your loyalties lie, we are no longer going to be able to give you a raise.” Based on these facts, the judge found that the Respon- dent’s suspension of its consideration of the wage in- crease was unlawful, because the Respondent acted in response to the Union’s request for recognition, cited employee support for the Union as the reason, and gave DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480 no assurances to the actors that consideration of the wage increase would resume regardless of the outcome of the Union’s campaign. The judge also found that, in the absence of a final signature, the proposed wage raise could still have been denied in its entirety. Accordingly, his remedy directed the Respondent to resume the proc- ess of considering a wage increase and, if it decided that it would have granted an increase, to make whole all employees who would have received it. For the reasons set forth in the judge’s decision, we agree that the Respondent violated Section 8(a)(1) of the Act by suspending consideration of the wage increase.3 However, as discussed below, we will modify the judge’s remedy in order to better place the employees in the posi- tion they would have been in absent the Respondent’s unfair labor practice. Although the Respondent had not completed every administrative step needed to implement the wage in- crease, Artistic Director de Michele, who was specifi- cally designated to communicate with the actors about this matter, informed the actors that the increase had “been agreed upon” but had not been finalized due to one missing signature.4 In these circumstances, we find that the evidence warrants the presumption that, absent the employees’ protected activities and the Respondent’s unlawful conduct, the Respondent would have approved and granted the actors a $6-per-show increase. We there- fore find that the appropriate remedy is for the Respon- dent to place the employees in the position they would have been in absent the unfair labor practice, including granting them the backpay they would have earned had the wage increase been awarded, unless the Respondent can demonstrate, at the compliance stage of this proceed- ing, that it would not have granted that increase, but in- stead would have granted a wage increase of a different amount or no increase at all.5 Accordingly, we shall amend the judge’s remedy as set forth below.6 3 We find it unnecessary to pass on whether the suspension also vio- lated Sec. 8(a)(3), because it would not materially affect the remedy. 4 Several employees who attended the meeting with de Michele testi- fied specifically concerning her statements, and the contemporaneous notes taken by two of the employees confirm the same. 5 Contrary to our colleague’s view, providing make-whole relief for the Respondent’s violation of Sec. 8(a)(1) in these circumstances is consistent with Board precedent. See, e.g., G.C. Murphy Co., 223 NLRB 604, 610 (1976). Similarly, Board precedent supports placing the burden on the Respondent to show that it would not have granted the $6 per show increase. See Planned Building Services, 347 NLRB 670, 676 (2006) (placing burden on respondent employer in successor- ship-avoidance case to demonstrate, in compliance proceeding, that it would not have agreed to monetary provisions of predecessor’s collec- tive-bargaining agreement). Here, as in Planned Building Services, placing the burden of proof on the Respondent is “both equitable (the [employer] is the wrongdoer) and practical (the [employer] has superior access to the relevant evidence).” Id. at 676 (footnote omitted). In AMENDED REMEDY Having found that the Respondent unlawfully sus- pended its consideration of the $6-per-show wage in- crease, we shall order the Respondent to resume process- ing that increase. The Respondent shall make whole all employees for any increase they would have received had the $6-per-show wage increase been implemented at the time its consideration was unlawfully discontinued, unless the Respondent establishes in compliance pro- ceedings that it would have granted a wage increase of a different amount or that it would not have granted a wage increase at all. Backpay shall be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). addition, “it is appropriate to utilize the compliance proceeding ‘as a means of tailoring the remedy to suit the individual circumstances’” of this case. Id. at 676 fn. 25, quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984). In Member Schaumber’s view, Planned Building Services is inappo- site. The violations in that case were the unlawful avoidance of a suc- cessorship obligation, based on virulent antiunion animus, by refusing to consider or hire the employees of the predecessor, and the subse- quent improper unilateral imposition of new terms and conditions of employment. The Board held there that the appropriate analytical analysis was Wright Line and that the successor was guilty both of 8(a)(3) and (5) violations, the latter because of the unilateral changes. In such a situation, “the Board’s traditional remedy is to ‘restore as nearly as possible the situation that would have prevailed but for the unfair labor practices,’” which obviously requires restoration of prior terms and conditions of employment. See id. at 674 (quoting State Distributing Co., 282 NLRB 1048 (1987)). By contrast, the violation being found here is simply an 8(a)(1) failure to continue to consider a possible wage increase. Thus, a make-whole restoration remedy is inappropriate. 6 Member Schaumber concurs in finding that the Respondent’s sus- pension of consideration of a wage increase was unlawful. However, he agrees with the judge’s finding that, absent a final approval, the Respondent could still have decided not to give any raise. He rejects, as unsupported by the record as a whole, his colleagues’ characteriza- tion of the status of the wage increase at the time of de Michele’s statement. As the record shows, the wage increases were merely pro- posed by de Michele, and had not been vetted or approved by upper management. Nothing in the email or other documentary exchanges with management regarding the proposals suggests that approval of the wage proposals was merely an administrative matter or that the increase would have been fixed at $6. De Michele may have exaggerated to make her point, and we have found a violation based on her statements, but that does not convert her representation into a fact. Thus, he dis- agrees with his colleagues’ amended remedy, which shifts the burden to the Respondent of proving in compliance that it would not have given a raise in the amount recommended by de Michele. Member Schaumber would instead adopt the judge’s remedy, which placed the burden on the General Counsel to prove in compliance that the amount of in- crease, if any, decided by the Respondent on completion of the resumed wage consideration process would have been different but for the unlawful suspension of the process. AMERICAN GIRL PLACE NEW YORK 481 ORDER The National Labor Relations Board orders that the Respondent, American Girl Place, Inc. d/b/a American Girl Place New York, New York, New York, their offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling its employees that they did not receive wage increases because they supported the Union. (b) Threatening its employees with more onerous working conditions if they selected the Union as their collective-bargaining representative. (c) Suspending its process of considering a wage in- crease for its employees because of the Union’s presence. (d) In any like or related manner interfering with, re- straining, 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. (a) Resume processing the wage increase for unit em- ployees that was under consideration on May 7, 2006. (b) Make whole any employees who would have re- ceived the wage increase but for the suspension of con- sideration of that increase, in the manner set forth in the amended remedy section of this decision. (c) 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 desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the at- tached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- 7 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- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since June 18, 2006. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT tell you that you did not receive wage in- creases because you supported Actors’ Equity Associa- tion (the Union). WE WILL NOT threaten you with more onerous working conditions if you select the Union as your collective- bargaining representative. WE WILL NOT suspend our process of considering a wage increase for you because of the Union’s presence. 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 resume processing the wage increase that was under consideration on May 7, 2006. WE WILL make you whole for any loss of earnings you may have suffered by reason of our suspension of that process. AMERICAN GIRL PLACE, INC. D/B/A AMERICAN GIRL PLACE NEW YORK DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482 Olga C. Torres, Esq., for the General Counsel. Michael F. McGahan, Tracyee Klein, and Donald S. Krueger, Esqs. (Epstein, Becker & Green, P.C.), of New York, New York, for the Respondent. Samantha Dulaney and Nicole Perez, Esqs. (Spivak, Lipton, Watanabe, Spivak, Moss & Orfan, LLC), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Based on a charge and an amended charge filed by Actors’ Equity Associa- tion (Union) on July 25 and September 21, 2006, respectively, a complaint was issued on November 30, 2006, against American Girl Place, Inc., d/b/a American Girl Place New York (Respon- dent or Employer). The complaint, as amended at the hearing, alleges essentially that on about June 18, 2006, the Respondent, in violation of Section 8(a)(1) of the Act (a) told its employees that they did not receive wage increases because they supported the Union, (b) threatened its employees with more onerous working condi- tions if they selected the Union as their collective-bargaining representative, and (c) made statements equating support for the Union to disloyalty to the Respondent. The complaint also alleges that on about a date between May 1 and June 18, 2006, the Respondent, in violation of Section 8(a)(1) and (3), denied a wage increase for its employees and, as an alternative thereto, the Respondent suspended its process of considering a wage increase for its employees because they assisted the Union and engaged in concerted activities. The Respondent’s answer denied the material allegations of the complaint and on May 21–23, 2007, a hearing was held before me in New York, New York. On the entire record, in- cluding my observation of the demeanor of the witnesses, and after considering the briefs filed by all parties, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a Wisconsin corporation having a facility located at 609 Fifth Avenue, New York, New York, has been engaged in the business of the retail sale of girls’ goods and apparel. Annually, the Respondent derives gross revenues in excess of $500,000 and purchases and receives at its New York facility goods and materials valued in excess of $5000 directly from suppliers located outside New York State. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background The Respondent operates a retail store in Manhattan in which it sells products relating to girls ages 9 to 12, and operates a theater in which live productions are presented by adult and child actors. The actors include “primary” actors who are the main performers and “cover” actors commonly known as un- derstudies. A show entitled American Girls Review employing eight adult actors (including four primary actors and four cover ac- tors) was performed for most of 2006 until September 4, 2006.1 It was replaced by a production called Circle of Friends which began on about September 22, 2006, and was still playing at the time of the hearing. Each of the actors has an employment agreement with the Respondent which provides that the primary actor must per- form in a minimum of 7 shows per week in weeks with 8 to 11 shows scheduled, and 75 percent of all shows scheduled in all other weeks. The cover actors perform the remaining 25 per- cent of shows, and other shows the primaries do not perform due to absence from work for vacation, sick, or personal rea- sons. The agreement also provides for: (a) The actor’s per show pay. During the time at issue here, the starting rate for the actors was $44.00 per show. Primary actors Matthew Sanders and Stephanie Tennill earned $44.00 per show. Calandra Hackney earned $46.00, and Roseanne Ciparick earned $48.00. (b) An hourly rate paid for rehearsals which is the same amount paid for sick pay, personal time off, and va- cation pay. The hourly rate was based on the show rate for the individual actor and varied from $13.79 to $17.60 per hour. (c) A $200 per week stipend payment for 26 specified “slow” weeks between September and May when no per- formances are held, totaling $5200 per year. (d) Other benefits including eleven paid holidays, 401(k) if eligibility requirements were met, vacation, sick leave, life insurance and accidental death and disability, short term and long term disability, tuition reimbursement, stock investment plan, health, dental and vision benefits, employee discount, and transit benefit program. At least since 2004, the actors received a pay raise of $2 per show per year. For example, the contract between the Em- ployer and actor Roseanne Ciparick for the period March 2004 to March 2005, provided for a per show rate of $44. The con- tract for the period March 2005 to March 2006, provided for a per show rate of $46. The contract beginning March 2006 (the show and Ciparick’s employment ended in September 2006), provided for a per show rate of $48. As Ciparick testified, contractually she could expect no further per show raise during the term of those contracts other than what was provided for in those agreements. 2. The Union contacts the Respondent and the actors request an increase in show pay and additional weekly stipends in June 2006 In early February 2006, Flora Stamatiades, the Union’s na- tional director of organizing, sent a letter to the Employer’s Wisconsin headquarters addressed to its president, Ellen Broth- 1 All dates herein are in 2006, unless otherwise stated. AMERICAN GIRL PLACE NEW YORK 483 ers. The letter stated that inasmuch as the Respondent pre- sented live theatrical performances at locations in New York, Chicago, and expected to do so in Los Angeles, it should enter into a national collective-bargaining agreement with the Union covering the actors performing in such productions. Stama- tiades offered to meet with Brothers. On February 13, Stama- tiades sent another copy of the letter to Brothers. On February 24, Menzi Behrnd-Klodt, in-house counsel to the Respondent wrote Stamatiades saying that the Employer was not interested in signing an agreement with the Union. In March, the Union met for the first time with the employees of the Respondent. The four primary actors usually had monthly meetings with their immediate supervisor, Heather de Michele, the Respon- dent’s artistic director. In late March 2006, they met with her and discussed the upcoming summer schedule and stipends. As set forth above, a $200 per week stipend was given for weeks in which there were no shows. No stipends were given in the months of June through August. At the March meeting, the actors told de Michele that usually June is a slow month for the production, and they requested a $200 stipend for 3 weeks in June. They also asked for a raise in the per show rate.2 De Michele told the actors that she would communicate their re- quests to “corporate” and let them know the result. According to Ciparick, de Michele said that a pay raise would be “diffi- cult.” Within a few days, de Michele addressed the actors’ requests with her supervisor, Scott Davidson, the director of the three theaters. Several phone conversations and emails between them sought “ways that we might be able to remedy the con- cerns.” At that time, the starting per show rate was $44 and the ac- tors’ per show rates ranged from $44 to $48. De Michele’s email of April 29 to Davidson outlined the cost if the actors received per show wages of $50 or $54. The email ended with the following recommendation: raise the per show rate to $50 and pay a $200 per week stipend for the entire year—52 weeks at $200 per week, or $10,400. At that time, the actors received a $200 stipend for only 26 weeks, or $5200. It was contem- plated that the stipend would be limited to the primary actors and not the covers, but de Michele and Davidson did not dis- cuss whether any pay raise would be so limited. She asked for Davidson’s thoughts on the matter. Davidson wrote back the same day asking her to put her memo into a spreadsheet for a meeting with Christine Warman, the director of human re- sources for retail stores. On May 2, de Michele sent an email to Davidson and War- man outlining “pay options and figures” which they discussed by phone later that day. The outline listed the total amount of money payable to the actors assuming 470 average adult pri- mary actor performances, a stipend of $5200 per year, and pay 2 Whether Ciparick alone approached de Michele requesting an addi- tional stipend for 3 weeks in June as testified by de Michele, or all four actors raised that matter and the issue of pay raises in a meeting with de Michele as they testified, need not be resolved. It is clear from de Michele’s testimony that all four actors raised concerns regarding their pay rate and an additional stipend for June and that she addressed these “concerns” with her superiors. per show at $44 (their current starting rate), and at “proposed” increases of $50 and $54 per show. During their conversation, Warman approved an additional weekly stipend of $200 for 3 weeks in June for the four primary actors because that period of time was slow, and because Warman believed that granting it was “fair, reasonable” and constituted a small expenditure. De Michele immediately informed Matthew Kiely, the theater manager, that the additional 3-week stipend for June was ap- proved.3 The actors testified that when de Michele informed them that they would be receiving their requested $200 stipend for the first 3 weeks in June, she said that she was still speaking to “corporate” about a pay raise and that no decision had been made as to that matter. According to employee Sanders, de Michele said that the requested pay raise was “under considera- tion.” On May 3, Stamatiades sent another letter to Respondent’s president, Brothers, informing her that a majority of the adult actors at the Manhattan location designated the Union as their collective-bargaining representative. She requested an oppor- tunity to meet with her and demonstrate such support. On May 4, de Michele sent an email to Davidson and War- man outlining the rehearsal rates and show rates for the child and adult actors in the theaters located in New York, Chicago, and Los Angeles. She took an existing document which showed the current rates for those cities and inserted rates of $50, $52, and $54 to the current New York rates which were $44, $46, and $48. She included cities other than New York in order to present an “overview” of the various rates nationally. De Michele testified that when she sent this email there had been no approval to make changes in the actors’ pay rates, and that she had no authority to approve wage raises for actors. She noted that nothing in the document states whether the raises apply to primary or cover actors. On May 7, de Michele sent an email with an attached chart to Davidson and Warman. The chart listed the current and “proposed” changes in per show rate and stipends for the pri- mary and cover actors for the period June 1 to September 4, 2006, when the American Girls Review production ended, and for the period September 22 to December 31, 2006, during the run of the Circle of Friends show. In the “proposed change” category for the then current American Girls Review, the starting per show rate was listed as $50, up from $44, and each of the primary actors was listed as receiving a $6 per show increase. Thus, Ciparick’s proposed per show rate was listed as $54, raised from $48, Hackney was $52, increased from $46, and the rates for Sanders and Tennill were $50, up from $44. The additional stipend increase of $200 per week for 3 weeks in June was also listed. Similar $6 raises were provided for the named cover actors. 3 In this respect, I cannot credit the actors’ testimony that they were informed in late April that the additional stipend was approved. De Michele’s testimony concerning the timing of the approval and support- ing emails support a finding that they were informed of the additional stipend in early May. It is unlikely that de Michele would have told them of the additional stipend in advance of its approval. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484 Identical $6 per show raises for the “primary” and “cover” actors were also set forth for the Circle of Friends show, scheduled to open on September 22. However, the names of those actors were not set forth in the chart. No additional sti- pend was proposed. With respect to both shows, although not set forth on the chart, the rehearsal rates for all the actors would have increased with the increases in the per show rate. De Michele’s email described the chart as Davidson’s and Warman’s requested “breakdown of current and proposed adult actor expenses. The two lines at the bottom . . . show that even with the changes enacted, we will come in $3000 ahead at the end of the year! Good news! I have a meeting (previously scheduled) with the adult actors Thursday [May 11] and would love to share any information then, if possible.” Dawn Levenick, the Respondent’s employee relations man- ager, testified that in early to mid-May, she was told by Super- visor Sandy Anderson that the Union sent a letter dated May 3 stating that it sought to represent the adult actors in the Re- spondent’s New York store. Levenick denied being aware of the February correspondence between the Union and Respon- dent’s counsel, Behrnd-Klodt, until after the May 3 letter was received. Levenick stated that at about the time she learned of the Un- ion’s May letter she was told by Director of Human Resources Warman that the Respondent had an “idea” to change the per show rate paid the actors. Levenick advised Warman not to act on that idea until legal counsel was obtained. Levenick gave such advice because she knew that changing the terms and conditions of employees’ employment while “under an active organizing campaign” violates the law. Levenick retained legal counsel and pursuant to counsel’s advice and recommendations decided to “just postpone any more discussions or decisions about any changes in the show rate until the matter of representation was resolved.” She made this decision because the Respondent did not want to give the “appearance to our actors that we were trying to persuade them to not join Equity because they were going to get a benefit or a pay increase.” Not having received a response to her May 3 letter, Stama- tiades wrote again to President Brothers on May 17 and 31, requesting a meeting. On June 13, Levenick wrote to Stama- tiades addressing the May 3 letter. The letter advised that the Respondent did not believe that the Union represented a major- ity of employees in an appropriate unit and suggested that the Union file a petition for an election with the Board. Separately, Levenick directed de Michele and Pat Keating, the Respondent’s director of human resources, to meet with the actors and tell them that the Respondent would “postpone any further consideration of any pay increase or change in the show rate until the matter of representation was resolved.” Levenick testified that no further action was taken with respect to the “proposal” for a per show wage increase—“it’s just been sitting out there doing nothing.” 3. The Union’s T-shirt campaign and the June 18 meeting On June 14, Stamatiades met with primary actors Ciparick, Hackney, Sanders, and Tennill and told them that a “T-shirt campaign” would be the next step in seeking recognition. T- shirts were distributed to them which prominently displayed the Union’s name and logo and the words “Support Equity Theatre UNITE.” They were instructed to, and did enter and leave the theater in a group wearing the shirts, and also wore the shirts during vocal warmups in the theater. The Respondent’s offi- cials acknowledged observing them wearing the shirts. The actors were advised that a meeting would be held on June 18, which would be attended by de Michele and Keating. Stamatiades was notified by the employees that a meeting with Keating, who they never met, was unprecedented. She advised them to take notes at the meeting. Employees Ciparick, Hackney, Sanders, and Tennill wore their union shirts at the June 18 meeting with de Michele and Keating. Hackney testified that at the meeting de Michele told them that the Union sent the Respondent a letter on May 3, and that the Employer replied that it was not interested in signing a union contract at that time, but instead suggested that the Union seek an election with the Board. Hackney and Sanders stated that de Michele told them that the Employer prided itself on maintaining a safe, nonunion work environment. Hackney, essentially corroborated by Ciparick and Sanders, testified that de Michele said that “if Equity were to come in everything would change. There would be a lack of flexibility. There would be a lot of rigidness toward things such as covers having to be at every show. There would be a lack of flexibil- ity with having other jobs. And there would also be a lack of flexibility with such issues such as vocal rest.” Ciparick quoted de Michele as saying “if we were to be an Equity theater, we would not be able to be as flexible with certain issues such as vocal rest—it would be a more rigid working environment.” Ciparick testified that de Michele used examples of the Re- spondent’s flexibility such as being able to grant vocal rest, and that the covers did not have to be present all the time. How- ever, Hackney denied that de Michele used examples of how the Employer had been flexible in the past in accommodating the employees’ other jobs and their need for vocal rest. She quoted de Michele as saying that “if Equity came in there would be lack of flexibility and rigidness” in that covers would have to be there at every show, a lack of flexibility with other jobs, and with vocal rest. Hackney denied that de Michele said that the Union’s rules would “get in the way” and cause a lack of flexibility, but admitted that de Michele mentioned that such changes would occur “if American Girl had an Equity con- tract.” Ciparick stated that perhaps de Michele said that the work- place would be a “more rigid working environment” if a mid- dleman was involved. However, Hackney did not recall de Michele discussing the Union organizing the employees in the context that it would be a “middleman” coming between man- agement and the employees. Hackney further stated that de Michele gestured toward their union shirts and said that “now that we see where your loyalties lie, we are no longer going to be able to give you that raise that we had discussed earlier.” Hackney’s written note, which she acknowledged was more accurate than her recollection, was identical to Sanders’ testimony regarding de Michele’s com- ment after gesturing to their union shirts—“we’re not going to be able to offer you the pay raise we discussed earlier,” thus AMERICAN GIRL PLACE NEW YORK 485 omitting the phrase to which she testified: “we are no longer going to be able to give you that raise that we had discussed earlier.” Hackney also stated that de Michele said that although the wage raise was discussed and “agreed upon,” the matter was out of her hands and everything has been put on hold. Hackney and Sanders denied that de Michele said that consid- eration of the raise was deferred pending the resolution of the representation matter.4 Sanders testified that de Michele said that the Employer would be “unable to offer us the pay raise that they had discussed . . . earlier.” Ciparick testified that de Michele told them “we’ve been informed by our counsel that we can no longer offer you (or can’t give you) the show pay increase because it would appear on our part like bribery.” Ciparick added that de Michele said that the Employer was “ready to sign off on the budget increase, which would include the show pay increase for the adult actors, and that they were one signature away” at which point the Employer received the letter from the Union and she then contacted counsel who told her that to avoid the payment appearing to be bribery, the show pay increase should not be given. Employee Sanders then interjected, as follows: “Let me get this straight. Because we are interested in joining the Union, you’re not going to be offering us this raise that you were con- sidering?” As de Michele began to answer, Sanders quoted Keating as interrupting, as follows. “Guys, you have to realize that if we were to make changes in your contract at this point, it would appear to be bribery or manipulation on our part.” Sand- ers stated that de Michele said that the raise “was something that had been agreed upon . . . it was one signature short of being finalized” or “approved.” He denied that de Michele said that the raise was “put on hold.” De Michele was quoted as telling the actors that the Employer was advised by counsel that the raise “would not be implemented because they were con- cerned it would look like they were bribing the actors.” De Michele told the actors that all the contractual payments due them would be paid. She then asked the actors to raise any concerns they had. Hackney offered that they did not make a “livable” wage because of the high cost of living in New York. Keating asked them what they believed an appropriate pay rate would be for an actor appearing in the Respondent’s theater, or a theater for young audiences. Hackney replied that such an actor would earn up to $800 per week. On this point, Sanders’ testimony differed from Hackney’s. He quoted de Michele as saying that the salary would probably be the same. Sanders agreed, but noted that the actors would not be required to do 20 or more shows per week. The actors mentioned that they did not receive the stipend due them 2 weeks before, and that Tennill did not receive her regular pay the past week. Keating said that she would look into it. The payments which were due were made thereafter. Hackney testified that although she and the other three actors knew that their employment with the Respondent would be ending in early September 2006, when their show ended, she 4 Hackney also answered a two-part leading question from the Re- spondent’s counsel which implied that de Michele told the actors that consideration of the raise was deferred, but I credit Hackney’s specific denial that de Michele made that statement. was concerned with de Michele’s comments that there would be less flexibility with second jobs and vocal rest if the Union was successful in representing them. Thus, the issues of “vocal rest” and flexibility with a second job were important to her for the remainder of her tenure there. She explained that because the actors use their voices extensively in their jobs they must take time off from work, sometimes weeks at a time, to rest their voices. In addition, they needed to have second jobs to support themselves. At hearing, the actors conceded that there- after there were no changes in their contract, work environ- ment, or flexibility for vocal rest or a second job. De Michele’s account of what she told the employees at the meeting is recounted here based on a compilation of her (a) written notes taken before the meeting in which she rehearsed what she would say. She stated that those notes were not “ver- batim” of what she actually said but followed the “general idea” of what she expected to say (GC Exh. 8), (b) the notes she wrote as to what occurred at the meeting written the same day or the day following the meeting (GC Exh. 9), and (c) typewrit- ten notes of the handwritten notes of what occurred at the meet- ing (GC Exh. 10). The Respondent’s arguments that these documents were privileged from disclosure pursuant to the attorney-client privilege and/or work product doctrine will be discussed below. De Michele told the four actors that the Union informed the Respondent that it sought to represent them. She said that the Employer told the Union that it did not believe that it needed a union coming between it and the actors inasmuch as it offers a safe, fair working environment, and further believed that the Union’s involvement would make the work place more “rigid.” De Michele told the employees that the Employer advised the Union that if it wanted to pursue the matter it could ask the Board to hold an election. De Michele then said that she was aware that they had spoken about changing their per show pay rate, and as she was “completing the process this all came up.” She noted that although it was clear by their wearing the union shirts where their loyalties are, the Respondent could not make any unscheduled changes in their contract because it could look like it is trying to sway them or buy their vote. De Michele told them that she brought their concerns about pay to the Respondent’s human resources department and that they were “in the process of being reviewed but that since it was apparent (gesture to total group in [union] shirts) where their loyalties were we could not follow through with any changes to their contract as that would look as though we were trying to buy their vote. Until this was settled we could not make any contractual changes, but we would still, of course, be true to anything in their current contract—annual increases, show count bonuses, etc.” De Michele noted that since the pay raises were “almost finalized,” but had not been “finalized” at the time the Respondent received the Union’s letters, the pay raises were “on hold” or “delayed” until resolution of the Un- ion’s representation matter. She added, however, that the Re- spondent would honor its contracts with the actors. Sanders said “so you won’t pay us what we deserve because the [Union] is involved?” De Michele answered that the pay raise was “al- most finalized when all this came up.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486 Following the meeting, Hackney met with Sanders and Tennill and they discussed together what was said. Hackney compiled their recollections into an email which she sent to Stamatiades the following day. Essentially the email is the same as her testi- mony, but the email stated that regarding the pay raise, de Mich- ele said that “even though it had been previously discussed and ‘agreed upon’ it was not finalized due to one signature that was missing but because the letter was sent from Equity everything has been ‘put on hold.’” No pay increase was received by the actors pursuant to their request. The employees engaged in a strike on August 3 and 4. On August 10, the Union filed a petition to represent the actors, and on November 17 an election was held. ANALYSIS AND DISCUSSION I. THE RESPONDENT’S ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGE ASSERTION Certain documents were subpoenaed from the Respondent by counsel for the General Counsel. The Respondent asserted that they were privileged due to the attorney-client and attorney work product doctrines, and I examined them in camera. I ruled that certain documents were privileged and others were not. I will discuss those documents that I found not privileged which I di- rected to be disclosed to the General Counsel over the Respon- dent’s objections: 1. A 3-page handwritten document prepared by de Michele in which she put into her own words the advice given to her by the Respondent’s counsel on June 7 as to what to say at the June 18 meeting (GC Exh. 8). By writing the document she rehearsed her thoughts in preparation for the meeting. She testified that her comments at the meeting conformed generally with these notes. In material part, the notes state that the Respondent did not be- lieve that it needed a union coming between it and the actors, and it believed that the Union’s involvement would make the work place more rigid. The notes further stated that it was clear, by the employees’ wearing the union shirts, where their loyalties are, and that no unscheduled changes in their contract could be made since it may appear that the Employer was trying to sway or buy their vote. 2. Two handwritten pages of a 6-page document prepared by de Michele consisting of her notes of what was said at the June 18 meeting written shortly after the meeting (GC Exh. 9). The Respondent represented that de Michele took these notes at the direction of counsel. In material part, the notes state that there was a “potential” change in wages but since the change was not finalized when the Union wrote to the Respondent, the matter of a pay raise was on hold or delayed until a resolution of the matter since it may look as if the Employer was trying to buy the em- ployees’ votes. 3. A 3-page typewritten email prepared by de Michele con- sisting of a summary of the notes she took at the June 18 meeting (GC Exh. 10). She sent the document to Kim Gohata, the Re- spondent’s in-house counsel, and to other Respondent officials. Counsel represents that this document was created at the direc- tion of counsel after the charge was filed on July 25. In material part, the notes state that de Michele told the actors that since it was apparent through their wearing the union shirts where their loyalties were, the Employer could not follow through with any changes to their contract as it would look like it was trying to buy their vote. Until “this” was settled the Employer could not make any contractual changes. All the above documents relate to advice the Respondent’s at- torney gave to de Michele concerning her meeting with employ- ees on June 18. General Counsel Exhibit 8 relates to counsel’s advice as to what she should say and reflects her “rehearsal” notes. General Counsel Exhibit 9 is her handwritten notes taken at the meeting at the direction of counsel, and General Counsel Exhibit 10 is her typewritten notes of that meeting. Central Telephone Co. of Texas, 343 NLRB 987, 988 (2004), is particularly helpful in deciding this issue. In that case, the employer’s attorney, Prophete, directed its official, Hindman, to conduct an interview and take notes at the interview with em- ployees who were suspected of improperly remaining at work later than their usual hours upon the union’s direction. Hindman took notes during the interview and prepared a written summary thereof. She reported the results of the interview to Prophete. The union requested Hindman’s investigation notes for its use in an arbitration proceeding. The employer’s refusal to provide them was alleged as an unfair labor practice. The Board found no violation in the employer’s refusal to provide the notes since they were privileged pursuant to the attorney work product doc- trine and were prepared in anticipation of litigation. The Respondent argues that all three documents constitute at- torney work product since the notes were written at the direction of counsel in anticipation of litigation, and also contends that General Counsel Exhibit 9 should not have been disclosed be- cause of the attorney-client privilege. Some question may be raised as to whether General Counsel Exhibit 8 was made in anticipation of litigation, as argued by the Respondent, or was prepared in the ordinary course of business. The work product privilege “protects from disclosure written material prepared by a party or his representative in anticipation of litigation or for trial. The strong public policy underlying the work product doctrine is to aid the adversarial process by provid- ing a certain degree of privacy to a lawyer in preparing for litiga- tion.” Central Telephone, above. Although the June 18 meeting may have been one of the regu- larly scheduled meetings between de Michele and the actors, the meeting itself was unusual, as recognized by the employees, since Keating, a senior official of the Respondent was present. By June 18, no litigation had begun and there was no testimony that the Respondent contemplated that litigation would be brought against it. However, it is not necessary that a lawsuit actually have been brought. It is enough for the party to have had a “subjective belief that litigation was a real possibility and that belief must have been objectively reasonable.” Central Tele- phone, above, citing Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). It is certainly clear that experienced labor counsel could reasonably anticipate litigation upon de Michele’s announcement to the employees that the raise they had requested and which they were told was being considered could not be given or was now on hold because of the presence of the Union. Accordingly, General Counsel Exhibit 8, de Michele’s notes of her conversation with counsel concerning what to say to the em- ployees appears to contain her mental impressions and interpreta- AMERICAN GIRL PLACE NEW YORK 487 tions of counsel’s advice as she put his advice into her own words, and was probably privileged as attorney work product and/or attorney client privilege. Some question could be raised as to whether General Counsel Exhibits 9 and 10 were privileged in that they simply contain de Michele’s notes, essentially taken in a clerical capacity, of her meeting with the employees consisting of what she said to the actors and what they said to her. However, she was directed by counsel to take those notes, she sent them to counsel for review, and they too appear to be taken in anticipation of litigation. Cen- tral Telephone, above. I find that the three documents are arguably subject to the at- torney-client privilege and the work product doctrine. Accord- ingly, I have not relied on them in making my findings regarding the alleged violations herein. Accordingly, although the three documents perhaps were privileged from disclosure, I do not believe that the Respondent has been prejudiced by their disclo- sure to the General Counsel and their receipt in evidence. I have not relied on them in making my findings herein. II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) OF THE ACT The complaint alleges that the Respondent (a) told its employ- ees that they did not receive wage increases because they sup- ported the Union (b) threatened its employees with more onerous working conditions if they selected the Union as their collective- bargaining representative and (c) made statements equating sup- port for the Union to disloyalty to the Respondent. All three allegations arise out of the June 18 conversation, set forth above, as to which I credit the employee witnesses. Their testimony about the meeting was consistent and essentially the same. As noted, de Michele did not deny their testimony and Keating did not testify. The test to determine whether a supervi- sor’s statement violated Section 8(a)(1) is “whether under all the circumstances the remark reasonably tends to restrain, coerce, or interfere with the employee’s rights guaranteed under the Act.” Exterior Systems, 338 NLRB 677, 678 (2002). A. Informing Employees that They did not Receive Wage Increases Because of Their Support for the Union The complaint alleges that on June 18 the Respondent told its employees that they did not receive wage increases because they supported the Union. As set forth above, de Michele gestured at the Union shirts worn by the four employees and said “now that we see where your loyalties lie” the Employer would not give them the raise that had been discussed. Whether she said that the raise would not be provided or that it had been put on hold or that considera- tion of the raise was being postponed is irrelevant for a determi- nation of this issue. The important point is that de Michele identified the actors’ wearing of the shirts as the reason that consideration of the raise was no longer being pursued. It was unnecessary for de Michele to have made the connection between the shirts and the wage raise. It was irrelevant where their loyalties lied. According to the Respondent, consideration of the raise was being postponed because the Union appeared on the scene. By personalizing the matter, saying in effect that since you have identified yourselves with the Union our decision has been put on hold, the Respon- dent made an unnecessary but nevertheless coercive remark blaming the employees’ union activity in wearing the shirts as the reason for the postponement of the decision on the raise. It is true that in the course of the conversation de Michele also said that consideration of the raise was postponed because the Re- spondent did not want it to appear that it was bribing employees, but in referring to the shirts she identified the employees’ loyalty to the Union as being the reason for the delay in reaching a deci- sion as to the raise. Contrary to the Respondent’s argument, de Michele did more than simply remark about the employees’ obvious loyalty to the Union. She made a connection between their loyalty to the Un- ion and the fact that consideration of the wage increase would be postponed. “The Board has long held that an employer violates Section 8(a)(1) if it advises employees that it will withhold wage in- creases or accrued benefits because of union activities.” Invista, 346 NLRB 1269, 1270 (2006), where the Board found that an employer’s threat that there would be no more pay raises as long as the union was trying to get in was an unlawful threat which placed the blame on the union for the employees’ not receiving a pay raise. See Earthgrains Baking Cos., 339 NLRB 24, 28 (2003); Grass Valley Grocery Outlet, 322 NLRB 1449, 1451 (2000). In Sacramento Recycling & Transfer Station, 345 NLRB 564, 564–565 (2005), an employer told its employees that it had con- sidered granting a raise but could not do so because it would be considered a bribe to defeat the Union. The Board found that the statement violated Section 8(a)(1) because the employer attrib- uted the withholding of the raise to the petition, unlawfully plac- ing the onus for the denial of that benefit on the union. Under these circumstances, it is clear and I find that de Mich- ele’s remarks reasonably tended to restrain, coerce, or interfere with the employees’ rights guaranteed under the Act to have their wage raise considered or granted regardless of whether they sup- port the Union. I accordingly find and conclude that the Respondent unlaw- fully informed its employees that they would not receive a pay raise or that such a pay increase would be postponed because of their support for the Union. B. The Threat of More Onerous Working Conditions The complaint alleges that the Respondent threatened its em- ployees with more onerous working conditions if they selected the Union as their collective-bargaining representative. As set forth above, de Michele told the employees that if the Union organized the employees “everything would change”— there would be a lack of flexibility regarding granting time for vocal rest and employees’ holding second jobs, benefits which they enjoyed at that time and a “more rigid working environ- ment.” Such statements violate Section 8(a)(1) of the Act. Top- side Construction Inc., 329 NLRB 886, 891 (1999); Allegheny Ludlum Corp., 320 NLRB 484, 484 (1995). Even though the employees were open union supporters, de Michele’s comments were clearly coercive. Seton Co., 332 NLRB 979, 981 (1999). The Respondent correctly notes that Section 8(c) of the Act permits an employer to express any views or opinion to employ- ees if such expression “contains no threat of reprisal or force or DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488 promise of benefit.” De Michele’s comments went much farther than simply expressing the Employer’s view of how union repre- sentation would affect the relationship between the employees and the Respondent. As set forth above, her remarks constituted a threat that if the Union represented the employees they would be subject to an adverse change in their working conditions. The Respondent points to the testimony of Hackney who said that de Michele remarked that the changes would take place pur- suant to the terms of a union contract. However, de Michele did not support her statement by showing a union contract to the employees, and no contract was offered in evidence here to refute de Michele’s implication that under a union contract the actors’ working conditions would be less flexible or more rigid or that they would lose the benefits of vocal rest and second job oppor- tunities they then enjoyed. Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995). “Although an employer can legitimately make a prediction . . . regarding the precise effects of unionization, the prediction must be carefully made on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond its control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). De Michele’s statement that the Union’s contract would result in the employees being adversely impacted was not sufficient to constitute objective evidence of such an event. As the Respondent argues, an employer may advise employees, in a manner which is moderate in tone, of the possible consequences of unionization. Tri-Cast, Inc., 274 NLRB 377, 378 (1985). However, de Michele’s comments went far beyond that deemed permissible. Her remarks were direct threats that if the Union succeeded in organizing the actors there would be less flexibility and more rigidity concerning matters which were vitally impor- tant to them—vocal rest and working second jobs. I accordingly find and conclude that, as alleged, the Respon- dent unlawfully threatened its employees with more onerous working conditions if they selected the Union as their collective- bargaining representative. C. The Alleged Statements Equating Support for the Union to Disloyalty to the Respondent The complaint alleges that the Respondent made statements equating support for the Union to disloyalty to the Respondent. This relates to de Michele’s gesture to the union shirts worn by the actors and her remark that “now that we see where your loy- alties lie” the Employer would not give them a raise. Apart from the allegation that this comment violated the Act because it served to inform the employees that their union activ- ity played a role in their not receiving a raise, this is alleged as an independent violation. The General Counsel argues that de Michele’s comment equated support for the Union with disloy- alty to the Respondent, implying that if they were loyal to the Union they were not loyal to the Employer, citing Medicare As- sociates, Inc., 330 NLRB 935, 941–942 (2000), where the Board found that an employer unlawfully equated loyalty to the em- ployer with opposition to the union by telling an employee that she must takes sides in a union campaign and was needed on the employer’s side. “Statements equating union activity with dis- loyalty to the employer constitute coercion in violation of Section 8(a)(1).” HarperCollins San Francisco v. NLRB, 79 F.3d 1324, 1330 (2d Cir. 1996). I do not agree with the General Counsel’s theory. The Board cases require a “direct reference equating protected activity with disloyalty to the employer.” Sea Breeze Health Care Center, 331 NLRB 1131, 1132 (2000). There must be some evidence that the employee was accused of disloyalty to the employer. Ferguson- Williams, Inc., 322 NLRB 695, 699 (1996), where the employer was “greatly offended by [an employee’s] disloyalty”; House Calls, Inc., 304 NLRB 311, 313 (1991), where the employees were “ingrates who were hitting him when he was down.” In contrast, de Michele did not expressly or impliedly accuse the employees of such disloyalty. Rather, she remarked only that the employees’ loyalties lie with the Union. Her observation that the actors were open and obvious loyal union supporters because they wore union shirts was not unlawful. No violation was found where an employer told an employee that he had hurt his feelings and was disappointed in him because he was distributing union material. Oklahoma Installation Co., 309 NLRB 776 (1992). I accordingly will recommend that this allegation be dis- missed. III. THE ALLEGED VIOLATIONS OF SECTION 8(a)(3) OF THE ACT The complaint alleges that the Respondent denied a wage in- crease for its employees and, as an alternative thereto, the Re- spondent suspended its process of considering a wage increase for its employees because they assisted the Union and engaged in concerted activities. It is the Board’s longstanding principle that: [A]n employer faced with a union organizing drive is re- quired to proceed with an expected wage or benefit adjust- ment as if the union were not on the scene. However, “[a]n employer may postpone such a wage or benefit adjustment so long as it ‘[makes clear]’ to employees that the adjust- ment would occur whether or not they select a union and that the “sole purpose” of the adjustment is to avoid the ap- pearance of influencing the election’s outcome.” Sam’s Club, 349 NLRB 1007, 1012–1013 (2007); Atlantic Forest Products, 282 NLRB 855, 858–859 (1987); Uarco, Inc., 169 NLRB 1153, 1154 (1968). In announcing the postponement, the employer may not attrib- ute its failure to implement the “expected wage or benefit ad- justment to the presence of the union or by disparaging or un- dermining the union by creating the impression it impeded the granting of the adjustment.” Earthgrains Baking Cos., 339 NLRB 24, 28 (2003); see Grouse Mountain Lodge, 333 NLRB 1322, 1324 (2001); Atlantic Forest, above; Uarco, above. A. The Alleged Denial of a Wage Increase The first question which must be answered is whether the wage raise was approved at the time of the June 18 meeting. The General Counsel argues that it was approved and the Respondent claims that it was not. The General Counsel’s credited evidence consists essentially of what the employees were told at the June 18 meeting. The most that the General Counsel may rely on was de Michele’s remark that the pay raise was “agreed upon,” and that the Em- AMERICAN GIRL PLACE NEW YORK 489 ployer was ready to sign off on the raise but was one signature away, and the increase therefore was “not finalized or approved.” The General Counsel cites SNE Enterprises, 347 NLRB 472 (2006), for the proposition that the Respondent approved the raise. In that case the Board found that the respondent decided, pursuant to its established policy of conducting wage reviews, to grant a wage increase. Here, in contrast, the Respondent had no established policy of granting mid-contract pay raises, and there was no credible evidence that it had, in fact, approved the raise or decided to grant it. Rather, the evidence supports a finding that the raise was still under consideration at the time of the June 18 meeting. The Respondent’s evidence establishes that the raise was un- der active consideration as of June 18. On May 7, de Michele prepared a chart for the Respondent’s officials with “proposed” changes in the show rate which set forth a pay raise of $6 per show. At about that time, Manager Levenick learned that the Respondent had an “idea” to raise the actors’ show rate and that the Union sought to represent them. She advised that further discussions or decisions concerning changes in the show rate be postponed. Accordingly, there is no evidence that a pay raise had been approved. Nor is there any evidence that the actors were told that they would be receiving pay raises, or that a definite sum and date of implementation had been given to them. I note that when the Respondent decided to grant a $200 weekly stipend increase for June that decision was announced immediately to the actors. Assuming that the Respondent would have followed the same procedure, it appears that if a decision had been made to grant a per show raise, an announcement con- cerning the raise would have been made to the actors at once. That they were not notified of a pay raise by June 18 is some evidence that no decision had been made to grant the raise. Clearly, de Michele proposed an increased wage rate and on June 18 the raise appeared to be well on its way to complete ap- proval, but lacked one signature. If that last signatory decided not to approve the wage raise it would not have been granted. The wage raise was either approved or not approved. Here, there was no credible evidence that it had been approved. It could not have been approved but for one signature. If approval lacked one signature it may not be found that it was approved. Since the Respondent did not approve a pay increase it could not have denied such a raise. Thus, no increase was “determined, prom- ised, scheduled or announced.” American Mirror Co., 269 NLRB 1091, 1094 (1984). Accordingly, I cannot find that the Respondent had decided to grant the employees a per show wage increase, and I will rec- ommend that the allegation that the Respondent denied a wage raise be dismissed. B. The Alleged Suspension of the Process of Considering a Wage Increase The above principles may be applied to the General Counsel’s alternative theory that even if the wage raise was lawfully not granted, the Respondent’s suspension of the process of consider- ing a wage increase was unlawful. Thus, the Respondent was actively considering granting a raise to the actors but postponed its deliberation because of the Union’s claim to represent its em- ployees. According to the above principles, the Respondent was re- quired to act as if the Union was not on the scene by continuing its process of considering a wage raise. Russell Stover Candies, Inc., 221 NLRB 441 (1975). It did not do so, and instead sus- pended its deliberations on the increase. It could have lawfully deferred its study of the raise if it “made clear” (a) to its employ- ees that its continued deliberation on the issue would occur whether or not they select a union, and (b) that the “sole purpose” of the postponement was to avoid the appearance of influencing the election’s outcome, and if it avoided putting the onus on the Union for the postponement. Atlantic Forest; Earthgrains, above. The Respondent did not meet its obligations in this regard. Under the first standard, the Employer was obligated to inform the actors that it would continue to consider the raise regardless of the Union’s claim to represent them and regardless of how they voted in the election. The Respondent was required to as- sure them that it would continue its deliberations whether or not they selected the Union. At no time, not on June 18 or thereafter, did the Respondent tell its employees that it would continue its process of considering the raise whether or not they selected the Union or regardless of the outcome of the campaign. In fact, according to Levenick’s testimony at the June 2007 hearing, consideration of the pay raise was still deferred. In addition, the Respondent did not, at any time, make clear to its employees that the “sole purpose” of the postponement was to avoid the appearance of influencing the outcome of the Union’s campaign to represent the employees. Although the Respondent did tell the actors that it did not want to make any changes in their pay because it would appear to be bribery, de Michele also referred to their union shirts as the reason why a pay raise would not be given. Thus, she said that “now that we see where your loyalties lie, we are no longer going to be able to give you that raise. . . .” Accordingly, de Michele did not say that the sole purpose of the postponement was to avoid the appearance of influencing of any representation matter. Rather, she expressly referred to their union affiliation as being the reason for the post- ponement of its consideration of the raise. In doing so, the Re- spondent attributed its postponement to the presence of the Union and to the employees’ support for it. Earthgrains Baking Cos., 339 NLRB 24, 28 (2003). In SNE Enterprises, above at 472, 473, the Board found that the employer violated Section 8(a)(3) by departing from its pol- icy of conducting wage reviews because of the union’s organiz- ing activity. In that case, the Board found a violation because the employer claimed that “as a result of the union filing the petition for election we didn’t even consider granting a general wage increase” and it did not conduct a wage review toward that end. Similar to the instant case, that employer made no decision as to whether to grant a wage raise, but did not undertake a wage re- view which may have led to pay raises. Such conduct was found unlawful because it was based on the employees’ union activities. Here, although the Respondent had no policy of considering a pay raise during the term of the employees’ contracts, neverthe- less, it did undertake to consider an increase in the show rate midterm. Whether or not the Respondent had a policy of consid- ering a pay increase during the term of its contract with the ac- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490 tors, it was prohibited from basing employment decisions on the employees’ union activities. SNE, above. Under either analysis, Atlantic Forest or SNE, the Respon- dent’s action in suspending the process of considering a wage raise was unlawful. Under an analysis based on Wright Line, 251 NLRB 1083 (1980), the General Counsel must prove that animus toward un- ion or protected activity was a substantial or motivating factor in the adverse employment action. The elements commonly re- quired to support such a showing are union or other protected activity by the employee, Respondent’s knowledge of that activ- ity, and union animus on the part of the Respondent. See Wil- lamette Industries, 341 NLRB 560, 562 (2004). If the General Counsel makes the required initial showing, the burden then shifts to the Respondent to prove, as an affirmative defense, that it would have taken the same action even in the absence of the employee’s protected activity. See Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). To establish this affirmative defense, the respondent must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119 (1993). Here, the evidence establishes that the employees engaged in activity on behalf of the Union by wearing union shirts. In addi- tion, the Union sent a letter to the Respondent on May 3 claiming to represent them. The Respondent was aware of these activities, and suspended its consideration of a wage raise because of the presence of the Union. In this respect, a finding of union animus is supported by de Michele’s remark that because of their loyal- ties toward the Union they would not be receiving a pay raise. A finding of union animus is also supported by the violations of Section 8(a)(1) above, specifically that the Respondent told its employees that they did not receive wage increases because they supported the Union, and threatened its employees with more onerous working conditions if they selected the Union as their collective-bargaining representative. Accordingly, I find that the General Counsel has made a prima facie showing that the Respondent’s failure to continue consider- ing a wage raise was motivated by their union activity. The Re- spondent has not met its burden of showing that it would have taken the same action even in the absence of the employees’ union activity. It cannot do so because it argues that it postponed its consideration of the raise precisely because of the employees’ union activity. The Respondent’s reliance on Village Thrift Store, 272 NLRB 572 (1983), and Hovey Electric, 302 NLRB 482 (1991), is mis- placed. The Board, while recognizing that the employer faced with the appearance of a union has a “Hobson’s choice” of grant- ing or withholding benefits and being subject to a charge if it chose either course, in both cases noted that the employer is per- mitted to postpone benefits where it makes clear that the purpose in doing so is to avoid the appearance of interference. Here, the Respondent went beyond that simple statement of neutrality and attributed the postponement of its decision on the raise to the employees’ support for the Union and the Union’s campaign. Grouse Mountain Lodge, above. I therefore find and conclude that the Respondent violated Sec- tion 8(a)(3) of the Act by postponing its consideration of a wage increase for its employees. CONCLUSIONS OF LAW 1. By telling its employees that they did not receive wage in- creases because they supported the Union, the Respondent vio- lated Section 8(a)(1) of the Act. 2. By threatening its employees with more onerous working conditions if they selected the Union as their collective- bargaining representative, the Respondent violated Section 8(a)(1) of the Act. 3. By suspending its process of considering a wage increase for its employees because they assisted the Union and engaged in concerted activities, the Respondent violated Section 8(a)(3) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as I have found that the Respondent unlawfully sus- pended its process of considering a wage increase for its employ- ees, I shall recommend that it shall continue its process of con- sidering the wage increase, and if it decides that it would have granted a wage increase, to make whole all employees who would have received such an increase but for the Respondent’s unlawful failure to continue its process of considering the wage raise. SNE Enterprises, above at 472, 473. The exact amount of the wage increases, if any, due employees shall be determined in compliance proceedings, and shall be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). At the compliance stage, the Respondent shall be given the opportunity to establish that it would not have granted a wage increase. SNE, above. The employees covered by the recommended Order herein shall be primary and cover actors. Inasmuch as de Michele’s May 7 email set forth “proposed change[s]” for both categories of actors, a remedial order should include primary and cover actors. In addition, the period of time within which pay increases should be paid, if wage increases are decided on, shall be the period from June 1 to September 4, 2006, for those actors appear- ing in the American Girls Review, and for the period September 22 to December 31, 2006, for those actors appearing in the Circle of Friends show. Those dates are consistent with de Michele’s May 7 email which set forth the proposed changes for such peri- ods of time. [Recommended Order omitted from publication.]