Domino's Pizza LLC

National Labor Relations Board - Board Decisions

Dec 16, 2019

368 N.L.R.B. 142 (N.L.R.B. 2019)

368 NLRB No. 142
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Domino’s Pizza LLC and Local 91, United Crafts &
Industrial Workers Union, Petitioner. Case 29–
RC–214227
December 16, 2019
DECISION AND ORDER REMANDING
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
Pursuant to a Stipulated Election Agreement, an elec-
tion was held on March 16, 2018. The tally of ballots
showed 26 votes for the Petitioner and 11 against repre-
sentation, with 7 challenged ballots. The Employer there-
after filed timely objections alleging, inter alia, that certain
supervisors’ prounion conduct constituted objectionable
conduct under Harborside Healthcare, Inc., 343 NLRB
906 (2004). The Regional Director directed a hearing on
28 of the objections. Following the hearing, the hearing
officer recommended overruling the objections, and the
Employer filed exceptions. On September 14, 2018, the
Regional Director issued a Decision and Certification of
Representative (pertinent portions of which are attached)
overruling the Employer’s objections and certifying the
Petitioner as the employees’ bargaining representative.
Thereafter, in accordance with Section 102.69(c)(2) of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review.1 The Pe-
titioner filed an opposition.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
For the reasons stated below, the Employer’s request for
review is granted as it raises a substantial issue warranting
review with respect to whether Supervisor Radwon
Hussin’s prounion conduct, including express threats of
job loss, constituted coercive conduct that interfered with
employees’ free choice in the election. Upon review, we
find that the election must be vacated and a second elec-
tion directed. In all other respects, the request for review
is denied.
The Employer specifically alleged in Objection 2 that,
during the critical period before the election, supervisory
Assistant Manager Radwon Hussin threatened employees
with discharge or job loss. At the hearing, witnesses

1 The Employer requested review of the disposition of the following
20 objections, which the Regional Director grouped by type: Objection
1; Objection 2; Objections 3, 5, 13 and 39; Objections 7, 8, 10, 14, 15,
19 and 27; Objections 12 and 24; Objections 22 and 23; Objection 28;
Objection 32; and Objection 36.
2 To the extent that certain then-recent cases seemed to suggest oth-
erwise and had caused “confusion,” the Harborside Board “disa-
vow[ed]” the language in those cases. See id. at 906, 909 (citing cases).
testified that Hussin told three employees that, if the Peti-
tioner lost the election, employees would lose their jobs,
and told a fourth employee that if the Petitioner won the
election, employees would not have jobs. The Hearing
Officer credited the testimony that Hussin made those
statements and discredited Hussin’s denials of the same.
The Regional Director accepted the hearing officer’s cred-
ibility resolutions and factual findings, but nevertheless
overruled Objection 2. As described more fully below, we
conclude that the Regional Director erred in overruling
Objection 2.
In Harborside, supra, the Board formulated a two-step
inquiry to apply in cases involving objections to an elec-
tion based on prounion supervisory conduct. The first step
considers whether the supervisor’s prounion conduct “rea-
sonably tended to coerce” or interfere with the employees’
exercise of free choice in the election, including consider-
ation of the “nature and degree” of supervisory authority.
343 NLRB at 909. The second step considers whether the
conduct interfered with freedom of choice to the extent
that it materially affected the outcome of the election. Id.
In setting forth this inquiry, the Board—subject to instruc-
tions from the United States Court of Appeals for the Sixth
Circuit—was concerned primarily with clarifying that
prounion supervisory conduct need not be accompanied
by an explicit threat or promise in order to be deemed co-
ercive under the first prong.2 Consistent with prior prece-
dent, the Board stated that some objectionable conduct
may involve “the more subtle question” of whether a pro-
union supervisor’s conduct “amounted to implicit threats
or coercion.” Id. at 909 (quoting NLRB v. Regional Home
Care Services, 237 F.3d 62, 69 (1st Cir. 2001)). Specifi-
cally, the Board held that a prounion supervisor’s solicita-
tion of authorization-card signatures from his or her sub-
ordinates is “inherently coercive,” absent mitigating cir-
cumstances. Id. at 906. Given the “nature and degree” of
authority that some supervisors have over their subordi-
nates, the Board reasoned, an employee may feel an “im-
plied threat” or “pressure” to sign a card or otherwise sup-
port the union, even without an express threat or promise.
Id. at 907, 909.3 However, as discussed more fully below,
the Harborside decision did not purport to alter Board
precedent regarding whether a supervisor’s explicit threat
may be coercive.
3 See also Madison Square Garden CT, LLC, 350 NLRB 117, 121
(2007) (where prounion supervisors had disciplinary authority, employ-
ees whom they supervised could “reasonably fear” that refusing to sign
a card “would make them more vulnerable to a disciplinary write-up,”
even though the supervisors in that case did not expressly threaten disci-
pline in connection with the solicitation).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the Harborside case itself, the supervisor in question
(a charge nurse) not only solicited authorization card sig-
natures but also stated that employees could lose their jobs
if they did not vote for the union. The Board observed that
the charge nurse had authority effectively to recommend
discharge, presumably in order to underscore that her sub-
ordinates could “reasonably believe” they would be dis-
charged if they did not vote for the union. 343 NLRB at
910–911, 913.4 Strictly speaking, however, this observa-
tion may have been unnecessary dictum, given that the
Board ordinarily finds express supervisory threats to be
objectionable (or to constitute unfair labor practices) with-
out requiring a showing that the supervisor possesses the
specific indicium of authority that a given threat might im-
plicate. In this regard, it is well settled that employers are
responsible for the statements of supervisors as their
agents and that, even from the mouth of a prounion super-
visor, an express threat of antiunion retaliation is objec-
tionable. See, e.g., Ace Heating and Air Conditioning Co.,
364 NLRB No. 22, slip op. at 2 (2016) (citing cases);5
Waste Management, Inc., 330 NLRB 634 (2000) (super-
visor’s threat of discharge deemed objectionable despite
the employer’s argument that the supervisor did not have
authority to discharge employees). Harborside did not
purport to disturb these principles and must be read as con-
sistent with them. Therefore, although Harborside’s first
prong considers the “nature and degree” of supervisory
authority in assessing whether card solicitation would rea-
sonably tend to coerce employees via an implied threat,
we do not believe the same analysis is required when as-
sessing whether express threats are coercive. In fact, else-
where in the Harborside opinion, the Board acknowl-
edged that express threats of job loss are “highly coercive
and one of the most serious forms of election misconduct.”
343 NLRB at 913 (citing Waste Management, 330 NLRB
at 634 fn. [2], and Lakehaven Nursing Home, 325 NLRB
250, 251 (1997)). In sum, although Harborside’s discus-
sion of supervisory authority in the first prong focused on
the concerns in that case regarding implied threats, we
clarify here that a supervisor’s express threat is coercive
under the first prong, whether or not the supervisor pos-
sesses the specific authority to effectuate the threat.

4 See also Millard Refrigerated Services, Inc., 345 NLRB 1143, 1146
(2005) (in the face of a supervisor’s express threat of discharge, the
Board noted his authority to effectively recommend discharge in con-
cluding that employees could “reasonably believe” they would be dis-
charged).
5 In Ace Heating itself, a prounion supervisor told employees that the
company’s owner said he would close the plant if they voted for the un-
ion. The Board held the employer liable for the supervisor’s threat as a
supervisor and agent under Sec. 2(11) and (13) of the Act, regardless of
whether the threat was specifically “authorized” by the employer, and
Turning to the case at hand, Objection 2 alleges in part
that, during the critical period, Hussin told three employ-
ees that employees would lose their jobs if the Petitioner
lost the election and told a fourth employee that they
would not have jobs if the Petitioner won. In overruling
Objection 2, the Regional Director relied primarily on the
lack of evidence that Hussin had the authority to discharge
employees or to recommend their discharge in finding that
his statements were not coercive. The Regional Director
distinguished Hussin from the supervisors in Harborside
and Millard Refrigerated Services, whose authority to rec-
ommend discharge underscored (perhaps unnecessarily)
the findings that their respective threats of job loss were
coercive. In doing so, the Regional Director essentially
assumed the reverse—that Hussin’s lack of authority to
recommend discharge meant that employees would not
reasonably be coerced by his predictions of job loss. But
as explained above, although the assessment of a supervi-
sor’s specific authority might be necessary to find implied
coercion under the first prong of Harborside, it is not re-
quired for finding that an express threat is coercive. To
the contrary, as discussed above, express threats of job
loss are considered “highly coercive.” See, e.g., Harbor-
side, 343 NLRB at 913; Waste Management, 330 NLRB
at 634 fn.2. It follows that even if a prounion supervisor
does not possess the authority to discharge employees, ex-
press statements that employees will lose their jobs based
on the election result cannot be construed as anything but
highly coercive attempts to induce employees to vote for
the union. Accordingly, we conclude, contrary to the Re-
gional Director, that Hussin’s express threats of job loss
were coercive under the first prong of Harborside.
Having found that Hussin’s threats were coercive, we
now consider their effect on the election’s outcome under
Harborside’s second prong. In connection with other ob-
jections, the Regional Director found that only 3 employ-
ees were subject to Hussin’s other coercive conduct.6 Ap-
plying the second prong of Harborside, she concluded that
Hussin’s conduct did not materially affect the outcome of
the election because the number (3) was smaller than the
regardless of the supervisor’s motivation or prounion “sympathies.” See
id., slip op. at 2.
6 Specifically, Hussin solicited card signatures from two employees
(Objection 1); expressly told a third employee (Asifuo Islam) to vote for
the Petitioner (Objection 12); and remained silent when a former general
manager told Islam that, if the Petitioner won the election, the Employer
would eventually discharge employees (Objection 23). Islam may also
have been subjected to the threats of discharge which we find to be co-
ercive in connection with Objection 2, but for purposes of counting the
total number of employees here, we obviously do not count Islam twice.
DOMINO’S PIZZA LLC 3
number of votes needed to shift the election result,7 and
because the Employer’s “extensive” antiunion campaign
and “disavowals” of Hussin’s conduct effectively miti-
gated any coercive effect. However, based on our conclu-
sion that 4 additional employees were subject to coercive
conduct as alleged in Objection 2, we find that a total of 7
employees were subject to his conduct—i.e., more than
the 4-vote shift needed to change the outcome in this case.
Harborside, 343 NLRB at 913. Moreover, there is no ev-
idence that the Employer disavowed Hussin’s specific
threats encompassed in Objection 2 by reassuring employ-
ees they would not be discharged based on their vote in
the election. See Madison Square Garden, 350 NLRB at
122 (insufficient mitigation where the employer did not
disavow the supervisors’ specific prounion conduct in-
cluding card solicitations). We therefore conclude, con-
trary to the Regional Director, that the totality of Hussin’s
conduct interfered with employees’ freedom of choice to
the extent that it materially affected the election’s outcome
and was not sufficiently mitigated by the Employer’s cam-
paign or partial disavowals.
Accordingly, we reverse the Regional Director’s Deci-
sion and Certification of Representative in this case, va-
cate the results of the election, and remand the case to the
Regional Director to conduct a second election.
Dated, Washington, D.C. December 16, 2019
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
Even assuming that the Employer’s supervisor engaged
in objectionable prounion conduct,1 the majority errs in
setting aside the election. That step unfairly permits the
Employer to take advantage of supervisory misconduct
that it condoned, contrary to Board and judicial prece-
dent.2 As the majority notes, the Employer was aware of,

7 The Regional Director inadvertently stated that an 8-vote shift was
needed to change the election result. Assuming that all 7 challenged bal-
lots were cast against representation, the Petitioner’s margin of victory
would 8 votes, and only a 4-vote shift would change the result.
1 Because I would not set aside the election here in any case, I do not
address the majority’s debatable interpretation of Harborside
Healthcare, Inc., 343 NLRB 906 (2004), with respect to whether a pro-
union supervisor’s explicit threat can be coercive even if the supervisor
lacks authority to carry out the threat. Harborside is explicit that in eval-
uating supervisory prounion conduct, the Board’s “inquiry includes …
but did not disavow, Supervisor Radwon Hussin’s threats
that employees would be discharged based on their vote in
the election. The Employer engaged in an active antiunion
campaign, and it had many opportunities to address
Hussin’s actions, yet it never did so. Accordingly, the
Board should certify the Union as employees’ representa-
tive.
Dated, Washington, D.C. December 16, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to Section 102.69 of the Board’s Rules, I have con-
sidered the exceptions filed by Domino’s Pizza LLC, herein
called the Employer, to the hearing officer’s report recommend-
ing disposition of objections filed to an election held on March
16, 2018.1 The election was conducted pursuant to a Stipulated
Election Agreement. The Tally of Ballots shows 26 ballots cast
for Local 91, United Crafts and Industrial Workers Union (herein
called the Petitioner or the Union) and eleven ballots cast against
the participating labor organization with seven challenged bal-
lots, a number insufficient to affect the results. The Employer
filed timely objections to the election.
On April 4, the undersigned issued a Report on Objections and
Notice of Hearing. The April 4 Report directed that a hearing be
held on Objections 1, 2, 3, 5, 7, 8, 10, 12, 13, 14, 15, 19, 20, 22,
23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 39 (alleging that
assistant told employees to attend Union meetings via text mes-
sage), and 40. The remainder of the Employer’s objections were
overruled in the April 4 Report. Pursuant to the April 4 Report,
a hearing was held before a hearing officer on April 16 through
April 20.
On June 4, the hearing officer issued a Report in which she
recommended that the Employer’s objections be overruled. As
described more fully below, the Employer filed exceptions re-
lated to the Hearing Officer’s Report and Recommendations to
overrule its objections and a brief in support thereof. Thereafter,
the Petitioner filed a brief in opposition.
I find that the Hearing Officer’s rulings made at hearing are
free from prejudicial error and are hereby affirmed. I have
consideration of the nature and degree of supervisory authority possessed
by those who engage in prounion conduct.” Id. at 909.
2 See B.J. Titan Service Co., 296 NLRB 668, 668 (1989); Republic
Electronics, 266 NLRB 852, 853 (1983); NLRB v. Columbia Cable TV
Co., 856 F.2d 636, 639 (4th Cir. 1988); NLRB v. Manufacturer’s Pack-
aging Co., 645 F.2d 223, 226 (4th Cir. 1981). See also Laguna College
of Art & Design, 362 NLRB 965, 965 fn. 3 (2015) (personal statement of
Member McFerran).
1 All dates hereinafter are 2018, unless otherwise indicated.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reviewed and considered the evidence and the arguments pre-
sented by the parties and, as discussed herein, I agree with the
Hearing Officer that the Employer’s objections should be over-
ruled. Accordingly, I am issuing a Certification of Representa-
tive.
.
. . . .
II. WHETHER THE PRO-UNION CONDUCT OF ASSISTANT MANAGERS
RADWON AND SAMAD WARRANTS SETTING ASIDE THE ELECTION
As noted above, the Employer takes exception to the hearing
officer’s finding that the conduct of Assistant Managers Radwon
and Samad was not objectionable.
Background
The facility at issue (the Howard Beach Store or Store 3597),
opened about 3 years before the instant hearing. Bablu Rahman
(Bablu), was the first general manager of the Howard Beach
store. Bablu was terminated by the Employer about the last week
of December 2017. The Howard Beach store did not have a gen-
eral manager from the last week of December 2017 until January
8. On about January 8, Corina Cojocaru became the general
manager of the Howard Beach store.
The petition in the instant case was filed on February 2, 2018.
On about February 19, Nadia Rahman replaced Cojocaru as
General Manager.
An election by secret ballot was conducted on March 16
among employees in the stipulated unit.19
Assistant Manager Role/Duties and Prounion Conduct
Assistant Manager Role/Duties
Each Domino’s store operates with one general manager and
three to five assistant managers. With regard to the Howard
Beach store, the evidence shows that during the critical period
there were five assistant managers, i.e., Radwon, Samad, Dan-
ielle Gravesand, Vijai Vissesar and Mohammed Islam.20 The
general manager works 52 hours a week; assistant managers
work shifts throughout the day; shifts run from about 8 a.m. to 2
or 3 a.m. Thus, in general, there are many hours that the store
operates without a general manager present.21
Assistant managers “maintain the business of the store.” This
includes tasks such as dispatching deliveries to the delivery ex-
perts, herein also called drivers, assigning tasks to team mem-
bers, keeping the store clean, taking phone calls, dealing with
customer complaints, and inspecting and evaluating the store.
They also help out when necessary making pizzas, cleaning and
working the cash registers. Further, assistant managers in gen-
eral may have involvement in interviewing job applicants, as-
signing shifts, offering employees overtime22 and they may issue

19 The election was initially scheduled for March 2 but was resched-
uled due to weather.
20 Islam transferred to the Howard Beach store on February 12.
21 The record indicates that during the critical period there was an in-
creased presence of higher management at the store as discussed below
in connection with the Employer’s campaign.
22 The evidence shows assistant managers do not have the authority to
require an employee to work overtime.
23 With regard to verbal warnings, if an employee is out of uniform or
over fifteen minutes late, an assistant manager has some discretion on
verbal warnings for not being in uniform or for being late.23
They approve employee discounts, promotional discounts and
the reimbursement of expenses for additional mileage to drivers
for non-pizza deliveries or for having to make a return trip for
the same delivery, and they are subject to being evaluated by a
Domino’s inspector in an Operations Evaluation Report if they
are the manager in charge of the store at the time of an inspec-
tion.
Assistant Managers’ Prounion Conduct
The hearing officer credited testimony showing the following
assistant manager prounion conduct24
Solicitation of Union Authorization Cards by Assistant Man-
ager Radwon (Objection 1)
The hearing officer credited evidence that in about December
2017 and January 2018, Assistant Manager Radwon spoke to
drivers Forhad Hussain and Shaek Farid, respectively, about
signing cards for the Union.
More specifically, in December 2017, during a phone conver-
sation, Radwon told Hussain that the Union was coming. Rad-
won spoke about signing some papers. Hussain told Radwon
that he was not sure; he had to make up his mind and he would
let him know another time. Thereafter, on an unspecified date,
Radwon tried to give driver Hussain a paper from the Union, but
Hussain refused to take it.
Further, in January 2018, Radwon told driver Farid that if he
wanted a card, he would bring it to him and he could sign it.25
Radwon told Farid that the other employees from Sylhet, Bang-
ladesh already signed cards and that he was the only employee
from Sylhet that had not signed. The evidence does not show
whether Radwon spoke to Farid again about signing or whether
he actually brought Farid a card.
The hearing officer also credited evidence that during the crit-
ical period, in February, Radwon told employees that 30 employ-
ees signed cards.
Threats of Discharge by Assistant Manager Radwon
(Objection 2)
Driver Asifuo Islam testified that he had conversations with
Assistant Manager Radwon when he was driving him home after
work after their shift. On an unspecified date, Assistant Manager
Radwon told Islam that if the Union did not win, people would
get fired. The record contained no further details about this con-
versation. There is no evidence that Islam told other employees
about Radwon’s statement.
On February 25 or 26, Assistant Manager Radwon told driver
Delwar Hossen and two other drivers, Nezid Ulhassan and Shaid
Palit, that if the Union lost the election, Radwon and other
whether to issue a verbal warning, which is recorded on the Employer’s
computer. However, the record does not establish that such discipline
lays the foundation for further personnel action.
24 The conduct engaged in is encompassed by the objection number(s)
noted.
25 Farid testified that he had two conversations with Radwon about the
Union; the evidence shows that this solicitation took place during the
second conversation.
DOMINO’S PIZZA LLC 5
employees would lose their jobs, but if the Union won the elec-
tion, Hossen would need his permission to work in the store.
About 2 weeks before the election,26 Radwon told driver
Mohin Uddin that employees would not have jobs if the Union
won.
Attended Union Meetings and Encouraged Attendance at Union
Meetings (Objections 3, 5, 13 and 39)
In late February and early March, Assistant Manager Radwon
attended at least two Union meetings.27 Additionally, Radwon
also spoke to or texted employees about attending union meet-
ings. Radwon told driver Asifuo Islam to attend a meeting but
Islam never went to the meeting.
Promised Benefits (Objections 7, 8, 10, 14, 15, 19 and 27)
The hearing officer credited multiple witnesses that before
and during the critical period, Radwon told employees they
would get better benefits, including higher wages, vacation and
medical benefits, job security and assistance finding other work
if the Union won the election. Assistant Manager Radwon told
driver Farid that the Union could get him a job if he did not want
to work for Domino’s any longer.
More specifically, on February 25 or 26, Radwon told three
drivers, Hossen, Ulhassan and Palit, that the Union would give
them a starting rate of $18.50 per hour, medical benefits, vaca-
tion benefits, and a job guarantee. In January or February, Rad-
won told driver Farid that if the Union came in, employees’
wages would go up to $18 per hour and they would get additional
benefits, including medical benefits and job security.28 Radwon
also told Farid that he would be able to work whenever he wanted
and that the Union could help employees obtain jobs outside of
Domino’s if they wished. Three other drivers testified about
similar promises by Radwon.
Told Employees to Vote for the Union (Objections 12 and 24)
On an unspecified date, Assistant Manager Radwon told
driver Asifuo Islam that he should vote for the Union.
Assistant Manager Radwon Called a Former General Manager
to Speak to an Employee About the Union (Objections 22 and
23)
One night prior to the initially scheduled date for the election
(March 2), driver Asifuo Islam asked Radwon about the Union
when he was driving Radwon home. At that point, Radwon
called former general manager Bablu Rahman (herein Bablu),
who was “close” with Islam, on speakerphone. Bablu told Islam
that if Domino’s won the election, they would send some drivers
to another store and they could be subject to discipline, including
termination. Bablu told Islam that “You are my people so. . . you
should understand” about voting for the Union. Islam testified
that he did not ask any other questions. The evidence does not
indicate any participation by Radwon in this conversation.
Sought to Undermine the Employer’s Position on the Union

26 Uddin indicated that this statement was made by Radwon before the
March 2 election was cancelled.
27 No employee testified about seeing Radwon at a Union meeting.
Nor is there any evidence of his conduct at the meetings.
28 This was not the same day Radwon asked Farid if he wanted
(Objection 28):
On February 8, the Employer’s Program Leader/Market
Trainer, Ashrahfuz Mutlib was visiting in the store late night
with Manager of Corporate Operations MD Islam. Assistant
Manager Radwon approached Trainer Mutlib; Assistant Man-
ager Samad was with Radwon. About six or seven employees
were present in the store at the time. Radwon told trainer Mutlib
that the Employer could have meetings about the Union, but that
employees would listen to him. Mutlib asked if there was any-
thing he could do to stop the Union activity and Radwon told him
that the Employer could not stop the activity. Mutlib testified
that the Employer was holding its campaign meetings prior to
this incident and that employees would have known the Em-
ployer wanted them to vote against the Union.
When Mutlib posted the Notices of Election in front of eight
or nine employees, Radwon said that employees should vote
“yes” for the company and “no” for the Union. Mutlib immedi-
ately corrected Radwon in front of the employees.
After a “ride along,”29 General Manager Nadia Rahman was
in a car discussing the Union with two drivers. General Manager
Rahman told the employees that they should not support the Un-
ion because someone else told them to do so. Radwon then
joined the group. Radwon told General Manager Rahman that
she should not discuss the Union or any “pro-company thing”
with employees. General Manager Rahman told Radwon that
she would continue to talk the employees.
The Hearing Officer noted that after each of these three inci-
dents, the Employer’s higher managers immediately disavowed
Radwon’s statements in the presence of employees.
Allegation That Assistant Managers Showed Favor to Certain
Employees in Assignments (Objection 32)
Objection 32 alleges that the Employer’s supervisor(s) gave
more favorable assignments to employees who expressed their
support for the Union and gave unfavorable assignments to em-
ployees who did not express support for the Union. The hearing
officer credited as truthful driver Hossen’s testimony that Assis-
tant Manager Radwon sometimes “showed favors” to four driv-
ers and that two of these drivers were Union supporters.
Hossen’s testimony did not provide specific testimony about
what “favors” were shown to these employees. The credited tes-
timony of both Assistant Manager Vissesar and General Man-
ager Nadia Rahman shows that certain employees complained
that deliveries were being dispatched in an unfair manner, that
there were claims that Union supporters were favored. Further
the Hearing Officer credited Assistant Manager Vissesar’s testi-
mony that Assistant Manager Radwon allowed more experi-
enced drivers to make deliveries within the last thirty minutes of
their shift; that he asked Radwon why he made such assignments
and Radwon responded that they were quick drivers and they
would be back before the end of their shift. The record does not
indicate any examples where these drivers returned after the end
Radwon to bring him a card.
29 On a ride-a-long, management would accompany a driver on a de-
livery. Ride-a-longs were part of the Employer’s campaign to advise
employees of its stance that they did not need a Union, as discussed be-
low.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of their shifts requiring premium pay.
The Employer’s Campaign
The credited evidence shows that after the petition was filed
on February 2, the Employer engaged in a substantial campaign
to advise employees of its opinion that the Union was not neces-
sary in its operations. The Employer advised the general man-
ager that she could not force employees to vote for the company
and provided guidelines on how to express the Employer’s opin-
ion on the Union. Assistant managers were advised that they
were supervisors and agents of the company, that they could not
assist the Union and that they could not express an opinion that
was favorable to the Union because they were not allowed to
work against the company.30 The Employer’s campaign directed
at unit employees included mandatory meetings with employees
off premises one or two times per week, posting at least ten no-
tices in the store and going on “ride alongs” with drivers every
night. There was an increased management presence at the store
during the critical period for campaign purposes.
More specifically, the Employer held one or two meetings per
week off-premises between February 5 and March 16 to let the
employees know its position on the Union. All employees who
were on the clock at the time of the meetings were required to
attend.31 On February 7, Director of Corporate Operations Rob-
ert Machim32 ran a mandatory meeting at a hotel. Machim told
employees that the Employer did not need a third party to com-
municate with its employees; that a third party was not necessary
in its business. The record shows employees were also shown
movies or picture projections on a screen at meetings. Employee
testimony indicates that each meeting lasted one or two hours.
The record indicates estimates of at least 20 employees at each
meeting.33
With regard to ride-alongs, the evidence shows that during the
critical period, five members of management, including Director
of Corporate Operations Machim, General Manager Rahman,
Manager of Corporate Operations Islam34 and Lead Manager of
Corporate Operations Aurora Albright,35 conducted ride alongs,
where the manager accompanied a driver on a delivery and
talked with the driver. These ride alongs were conducted almost
every night. The number of drivers who were accompanied by
managers varied from two to twelve per night. According to em-
ployee testimony, during various ride alongs, managers ex-
plained that Domino’s already gave employees certain benefits;
that the Union’s chief executive officer went to jail; that

30 On February 15, the Employer met with the five assistant managers
who worked at the Howard Beach store. The meeting took place in a
small training room at another store. Further, Assistant Managers Samad
Hussan and Radwon Hussin signed a document entitled, “Domino’s
Pizza, LLC, Basic Guidelines For Lawful Communications Regarding
Unions: “FOE” and “TIPS.” This document advised the assistant man-
agers that they could share facts, opinions and experiences regarding the
Union, but could not threaten, interrogate promise or surveil employees.
Facts cited in this document included that unions only represent 6.4% of
all employees, that unions can charge employees for dues, initiation fees,
fines, assessments and other hidden charges, and that paying union dues
does not protect employees’ jobs when business declines. Opinions cited
in the document include that flexibility and teamwork were keys to Dom-
ino’s success, that during contract negotiations, a union could push for
work rules and other changes that could hurt individual employees, that
employees did not need a Union; that they should make up their
own minds and “you shouldn’t just go for it because somebody
tells you.”
With regard to the Employer’s postings, the evidence shows
that there were at least ten postings related to the Union during
the Employer’s campaign. These postings notified employees of
the Employer’s position that the Union was not needed in the
Employer’s operations.
The evidence also shows that during the critical period, Gen-
eral Manager Rahman spoke to employees about the Union al-
most every other day inasmuch as they approached her on the
subject. Further, the evidence shows that General Manager Rah-
man and Program Leader/Market Trainer Mutlib spoke to em-
ployees individually or in groups of two at a nearby Dunkin Do-
nuts.
Employee testimony shows that employees were aware that
the Employer did not want employees to vote for the Union.
Management testimony also shows that employees present for
certain conversations between the Employer and Assistant Man-
ager Radwon would know Radwon and management had a dif-
ferent position on the Union situation.
Discussion
Board Law
The legal standard to be applied in cases involving objections
to an election based on supervisory prounion conduct, stated by
the Board in Harborside Healthcare Inc., 343 NLRB 906 (2004)
is as follows:

When asking whether supervisory prounion conduct upsets the
requisite laboratory conditions for a fair election, the Board
looks to two factors.
(1) Whether the supervisor's prounion conduct reasonably
tended to coerce or interfere with the employees' exercise of
free choice in the election.
This inquiry includes: (a) consideration of the nature and de-
gree of supervisory authority possessed by those who engage
in the prounion conduct; and (b) an examination of the nature,
extent, and context of the conduct in question.
(2) Whether the conduct interfered with freedom of choice to
the extent that it materially affected the outcome of the election,
based on factors such as (a) the margin of victory in the elec-
tion; (b) whether the conduct at issue was widespread or iso-
lated; (c) the timing of the conduct; (d) the extent to which the
“we just don’t need a union here,” that the Employer cared about em-
ployees and believed in working with each other not fighting with each
other. The Hearing Officer’s Report cited further examples of manage-
ment’s instructions as to what assistant managers could tell employees
and requests to tell employees that the Union was not good.
31 Employees were paid for the time they attended the meetings. The
Employer assigned managers and supervisors to fill in at the store while
employees attended the meetings.
32 Machim is in charge of running several corporately owned stores.
33 Other estimates placed about 30, 35, 40 and 50 employees present.
34 The first name of the Manager of Corporate Operations is reported
on the record as “Indy” and “MD.”
35 Albright testified that she directly supervised five Managers of Cor-
porate Operations.
DOMINO’S PIZZA LLC 7
conduct became known; and (e) the lingering effect of the con-
duct.
Further, under the first prong of the Harborside standard, in
examining the nature, extent and context of the supervisor’s con-
duct, the Board held that with respect to the solicitation of au-
thorization cards, absent mitigating circumstances, such solicita-
tions have an inherent tendency to interfere with the employees’
freedom of choice to sign a card or not and thus may be objec-
tionable. Id. at 910.
Application of Board Law to Facts
As discussed more fully below, I find that Radwon’s conduct
in connection with soliciting two employees to sign Union au-
thorization cards, telling an employee he should vote for the Un-
ion and remaining silent when a former general manager told an
employee his view of what would happen if Domino’s won the
election could reasonably tend to coerce or interfere with em-
ployee free choice, in the absence of mitigating circumstances.
However, I further find that Radwon’s conduct did not interfere
with employees’ exercise of free choice to the extent that it ma-
terially affected the outcome of the election under the applicable
Harborside standard.36
(1) Whether Radwon’s conduct reasonably tended to coerce or
interfere with employee free choice37
a. The nature and degree of Radwon’s supervisory authority
As set forth above, I have found that the Petitioner is bound to
the Stipulated Election Agreement wherein it agreed that the as-
sistant managers at the Howard Beach store were supervisors
within the meaning of the Act.
The record shows that the assistant managers are relatively
low level supervisors within the company. They are subordinate
to the general manager in the store, and there are further layers
of corporate managers, including the manager of corporate oper-
ations, the lead manager of corporate operations and the director
of corporate operations.
While the assistant managers have authority in performing the
tasks required to maintain the business of the store, the credited
evidence shows that their authority is limited. Assistant manag-
ers are expected to follow set company policies in most aspects
of maintaining the business of the store and they are monitored
by higher management in setting forth the Employer’s policies
and procedures. In this regard, the record indicates that assistant
managers may use some discretion in offering overtime and as-
signing deliveries, i.e., assigning two orders to one driver if there
were an insufficient number of drivers or assigning certain

36 The hearing officer overruled Objections 20, 26, 29, 30, 31, 33, and
34 inasmuch as no evidence was offered in support of said objections.
The Employer takes exception to the Hearing Officer’s recommendation
to overrule Objections 20, 26, 29, 30, 31, 33, and 34 but does not provide
support. Accordingly, I overrule Objections 20, 26, 29, 30, 31, 33, and
34.
37 The Hearing Officer found there was no credible evidence that As-
sistant Manager Samad engaged in the conduct alleged to be objectiona-
ble. After careful review of the record, I find no basis for reversing the
hearing officer’s credibility determinations.
38 The hearing officer credited Assistant Manager Vissesar’s testi-
mony that Assistant Manager Radwon allowed more experienced drivers
drivers a delivery less than 30 minutes prior to the end of their
shift.38 However, the unit employees are aware of the limits to
the authority of the assistant managers. Indeed, the evidence
shows that employees made complaints to higher managers, in-
cluding the general manager, about the assistant managers’ dis-
patch of deliveries in conflict with the Employer’s set proce-
dures.39 And, an assistant manager cannot require an employee
to work overtime. Further, while assistant managers have the
authority to verbally warn employees regarding lateness and not
being in uniform, there is no record evidence that such verbal
warnings lay the foundation for further discipline and there is no
evidence that assistant managers possess the authority to dis-
charge or recommend the discharge of other employees.
However, assistant managers are the immediate supervisors of
the unit employees. Further, they are the only supervisor in the
store and the manager in charge of the store for hours at a time
every day during the work week. Thus, I do not ignore that as
such, they can impact unit employees' work lives on a daily ba-
sis. See, e.g., Madison Square Garden, Ct. LLC., 350 NLRB 117
(2007); SNE Enterprises, Inc., 348 NLRB 1041 (2006).
b. Nature, extent and context of Radwon’s prounion conduct
Radwon’s conduct included soliciting two employees to sign
Union authorization cards, telling employees they could lose
their jobs if the Union lost the election, attending two Union
meetings, telling an employee to attend a Union meeting, inform-
ing employees about Union meetings, telling an employee he
should vote for the Union, attempting to interfere with the Em-
ployer’s message against Union representation and remaining si-
lent when a former general manager told an employee his view
of what would happen if the Employer won the election. Rad-
won’s conduct was directed at employees who were under his
continuing direct supervision.
(i)The solicitation of cards (Objection 1)
In connection with Objection 1, the credible evidence shows
that Radwon talked to employees about signing cards; he told
employees that 30 employees had signed cards. Further, before
the critical period, Radwon solicited drivers Hussain and Farid
to sign cards; these two employees worked with Radwon on the
same shift. The fact that Radwon told driver Farid that Farid
was the only employee from Sylhet, Bangladesh that did not sign
a card would give Farid reason to believe that Radwon would
know whether he ultimately signed a card. While the evidence
does not show that these employees actually took a card from
Radwon, their subjective reaction to Radwon’s conduct is not
considered in determining whether his conduct reasonably
to make deliveries within the last 30 minutes of their shift; that he asked
Radwon why he made such assignments and Radwon responded that
they were quick drivers and they would be back before the end of their
shift. The record does not indicate any examples where these drivers
returned after the end of their shifts requiring premium pay. Also, the
hearing officer noted many witnesses reported that the more senior em-
ployees were getting better delivery assignments.
39 Employee complaints also alleged that assistant managers were
making more favorable delivery assignments to certain drivers who sup-
ported the Union and less favorable assignments to drivers who did not
support the Union.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tended to coerce or interfere with the employees’ exercise of free
choice. Inasmuch as Radwon directly solicited two employees
who were under his immediate supervision, such conduct has an
inherent tendency to interfere with these employees’ freedom to
choose to sign a card or not and thus may be objectionable in the
absence of mitigating circumstances. See Harborside
Healthcare, supra. And, while the solicitation of the two em-
ployees took place outside of the critical period, it is noted that
the Board in Harborside Healthcare found that while the solici-
tation of cards may be conduct outside the critical period, such
would not necessarily mean that the conduct is not objectionable
inasmuch as a supervisor’s solicitation would ordinarily con-
tinue to be felt during the critical period.
The second prong of the Harborside standard, i.e., whether
this conduct interfered with freedom of choice to the extent that
it materially affected the outcome of the election, will be ad-
dressed below.
(ii) Assistant Manager Radwon’s Call to a Former General
Manager to Speak to an Employee About the Union (Objec-
tions 22 and 23) and Telling an Employee to Vote for the Un-
ion (Objections 12 and 24)
In connection with the conduct encompassed by Objections 22
and 23, as noted above, the credited evidence shows that during
the critical period, driver Asifuo Islam asked Radwon about the
Union when he was driving Radwon home. Radwon initiated a
call to former general manager Bablu, who was “close” with Is-
lam, on speakerphone. Bablu told Islam that if Domino’s won
the election, they would send some drivers to another store and
they could be subject to discipline, including termination. Bablu
told Islam that “You are my people so...you should understand”
about voting for the Union. Islam testified that he did not ask
any other questions. The evidence does not indicate any partic-
ipation by Radwon in this conversation.
I find that employees would not reasonably believe that this
former general manager reflected company policy and was
speaking on behalf of the Employer. 40 In this regard, Bablu was
not employed by the Employer at the time Radwon called Bablu,
who both men apparently had a relationship with outside of
work, for his input.
However, I acknowledge, as the Employer points out, that As-
sistant Manager Radwon, a current supervisor, initiated the call
to Bablu, was present during the speakerphone conversation, and
that there is no evidence that he disavowed Bablu’s statements.41
Whether Radwon’s silence on these matters would likely be in-
terpreted as the Employer condoning Bablu’s statements is dis-
cussed in the section below related to mitigating factors in-
volved. Thus, I find Radwon’s conduct in staying silent when
Bablu told a driver that if the Employer won, they would send
some drivers to another store where they would be subject to dis-
cipline, would reasonably tend to interfere with employee free
choice in the absence of mitigating circumstances.

40 The record shows Bablu was discharged by the Employer. Driver
Islam testified that he was “close” with Bablu.
41 The Employer excepts to the hearing officer’s finding that Bablu’s
comments were unobjectionable third-party comments that did not create
an atmosphere of fear and reprisal that would render a free election im-
possible under Westwood Horizons Hotel, 270 NLRB 802 (1982). The
The second prong of the Harborside standard, i.e., whether
the conduct interfered with freedom of choice to the extent that
it materially affected the outcome of the election, will be ad-
dressed below.
In connection with conduct encompassed by Objections 12
and 24, the hearing officer credited evidence that on an unspeci-
fied date, Assistant Manager Radwon told driver Asifuo Islam
that he should vote for the Union. Further details of the conver-
sation were not provided. There is no evidence that the statement
was accompanied by a threat or promise. However, in the ab-
sence of the Employer taking a stance to the contrary, such a
statement by a supervisor could imply that the Employer wanted
employees to vote for Union. Thus, this statement by Radwon
would reasonably tend to interfere with employee free choice in
the absence of mitigating circumstances.42
(iii)Threats of Job Loss, Attendance at Union Meetings, Prom-
ises of Benefits
In connection with threats encompassed by Objection No. 2,
the credible evidence shows that assistant manager Radwon told
one employee that people would get fired if the Union lost the
election. The evidence does not establish that Radwon’s state-
ment was disseminated. However, Radwon made statements
about job loss to another four employees. In this regard, during
one conversation, he told three drivers that employees43 would
not have jobs if the Union lost; he told one of these employees
that that the employee would need his permission to work if the
Union won. Radwon also told another employee that employees
would not have jobs if the Union won. A prounion supervisor’s
threats of job loss if the Union loses the election may be coercive.
See e.g., Harborside Healthcare, Inc., supra (where prounion
supervisor who had the ability to retaliate against employees re-
peatedly threatened several employees with the prospect of job
loss if the union lost the election, such conduct was found coer-
cive); Millard Refrigerated Services, Inc., 345 NLRB 1143
(2005) (where a prounion supervisor had the authority to effec-
tively recommend the discharge of employees, his repeated or
similar threats to his crew that, “[I]f the union does not get in,
everybody will probably be fired,” was found coercive). While
the record shows that assistant managers have the authority to
verbally warn employees regarding lateness and not being in uni-
form, there is no record evidence that such verbal warnings lay
the foundation for further discipline. Further, there is no conten-
tion or evidence that assistant managers possess the authority to
discharge or effectively recommend the discharge of other em-
ployees. Thus, employees in these circumstances would not rea-
sonably be coerced by Radwon’s statements. Compare Millard
Refrigerated Services, supra. I note that the record does not es-
tablish that the two employees who Radwon asked to sign cards
were subjected to these threats. Further, I agree with the hearing
officer that Radwon’s remark to one employee that if the Union
won, he would need Radwon’s permission to work is not the type
Employer asserts that because Radwon did not refute or disavow Bablu’s
comments, he tacitly acknowledged their validity.
42 The second prong of the Harborside standard, i.e., whether the
conduct interfered with freedom of choice to the extent that it materially
affected the outcome of the election, will be addressed below.
43 He included himself in this group.
DOMINO’S PIZZA LLC 9
of conduct which would reasonably interfere with or coerce an
employee to vote for the Union. Accordingly, Objection No. 2 is
overruled.
In connection with conduct encompassed by Objections 3 5,
13, and 39, the credited evidence shows that Radwon attended at
least two Union meetings and spoke or texted employees about
attending Union meetings. The hearing officer also found that
Radwon encouraged one employee to go to a Union meeting. A
prounion supervisor’s attendance at a union meeting, standing
alone, does not establish coercion or interference under Harbor-
side’s first prong. See, e.g., Northeast Iowa Telephone Com-
pany, 346 NLRB 465 (2006) (where the Board found no coercion
or interference even though managers attended union meetings,
participated in discussions at those meetings, signed authoriza-
tion cards in front of employees and mentioned some of the is-
sues that a union could help resolve, such as the fairness of
scheduling, overtime and layoffs). See also Stevenson Equip-
ment Co., 174 NLRB 865, 866 (1969) (where supervisors told
employees about union meetings, attended union meetings and
the supervisors and employees signed cards at the meetings, such
conduct was not found objectionable). There is no evidence that
Radwon spoke about the Union or solicited cards at the meetings.
Further, the credited evidence does not establish that Radwon re-
quired employees to attend Union meetings. Thus, I find Rad-
won’s attendance at two Union meetings, texting employees
about one Union meeting and encouraging an employee to attend
a Union meeting would not reasonably interfere with or coerce
employees in their free choice. See e.g., Northeast Iowa Tele-
phone Company, supra. In light of the foregoing, Objections 3,
5, 13 and 39 are overruled.
In connection with conduct encompassed by Objections 7, 8,
10, 14, 15, 19 and 27, the hearing officer credited multiple wit-
nesses that Radwon told employees they would get better bene-
fits, including higher wages, vacation and medical benefits, job
security and assistance finding other work if the Union won the
election. Further, assistant manager Radwon told driver Farid
that the Union could get him a job if he if did not want to work
for Domino’s any longer. The evidence does not establish that
the statements mentioning job security as a benefit of unioniza-
tion would reasonably be construed as a threat of loss of contin-
ued employment if the employee does not vote for the Union.44
The Board has found that statements by a prounion supervisor
advising employees of potential benefits of collective bargaining
do not reasonably interfere with or coerce employees’ freedom
of choice in an election. See e.g. SNE Enterprises, Inc., 348
NLRB 1041 (2006) (where a first-line prounion supervisor who
solicited employees to sign authorization cards also told employ-
ees that the union would help them get better benefits and treat-
ment from the employer, the Board found such conduct was not
objectionable). See also, North East Iowa Telephone Company,
supra. Accordingly, I do not find that Radwon’s conduct related
to the promises of potential benefits of unionization would

44 As noted above, there is no evidence that Radwon has the ability to
discharge or effectively recommend the discharge of employees. Nor
does the credited evidence establish that Radwon’s supervisory authority
included the ability to increase employees’ hourly wage rate, or provide
vacation or medical benefits.
reasonably coerce or interfere with employee free choice and
Objections 7, 8, 10, 14, 15, 19 and 27 are overruled.
(iv) Other Conduct-Objection Nos. 28, 32 and 36
In connection with the conduct encompassed by Objection
No. 28, alleging that the Employer’s supervisors undermined the
Employer’s position on the Union, the credited evidence shows
there were three separate incidents involving higher members of
management and Radwon in connection with the Union after the
petition was filed on February 2. First, on February 8, the Em-
ployer’s program leader/market trainer, Ashrahfuz Mutlib, was
in the store late night with the Employer’s manager of corporate
operatons, MD Islam, when about six or seven employees were
present in the store. Radwon told trainer Mutlib that the Em-
ployer could have meetings about the Union, but that employees
would listen to him. Mutlib asked if there was anything he could
do to stop the Union activity and Radwon told him no.45 As
pointed out by the hearing officer, the evidence does not clearly
establish that the employees heard the conversation.
The second incident occurred before the originally scheduled
election date (March 2). When Mutlib posted the Notices of
Election in front of eight or nine employees, Radwon said that
employees should vote “yes” for the company and “no” for the
Union. Mutlib immediately corrected Radwon in front of the
employees.
The third incident occurred after a ride-along when General
Manager Rahman was in a car discussing the Union with two
drivers. The general manager was telling the employees that
they should not support the Union because someone else told
them to do so. Radwon joined them and told General Manager
Rahman that she should not discuss the Union or any “pro-com-
pany thing” with employees. General Manager Rahman told
Radwon that she would continue to talk the employees.
As noted by the hearing officer, after each of these three inci-
dents, the Employer’s higher managers immediately disavowed
Radwon’s statements in the presence of employees. Thus, I find
that these three incidents do not establish that Radwon’s conduct
interfered with the employees’ free choice by eroding the Em-
ployer’s position as alleged.46 Accordingly Objection No. 28 is
overruled.
Turning to Objection No. 32, the Employer alleges that its su-
pervisor(s) gave more favorable assignments to employees who
expressed their support for the Union and gave unfavorable as-
signments to employees who did not express support for the Un-
ion.
The gravamen of an allegation that an employer’s supervisors
discriminated against employees in assigning favorable/unfavor-
able work assignments based on the employees’ support or lack
of support for the Union would require a finding that the super-
visors’ conduct constituted violations of Section 8(a)(3) of the
Act, and such allegations must be decided in an unfair labor prac-
tice proceeding. See, Texas Meat Packers, Inc., 130 NLRB 279
(1961). Indeed, the case cited by the Employer in its brief in
45 Mutlib testified that the Employer was holding its campaign meet-
ings prior to this incident and that employees would have known the Em-
ployer wanted them to vote against the Union.
46 I will discuss the higher managers’ disavowals further below when
considering the second prong of the Harborside analysis.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
connection with the conduct encompassed by Objection 32,
Trailmobile Trailer, LLC47 involved an election being set aside
based upon post-petition unfair labor practice conduct, including
the transfer of employees to more onerous positions because of
their union activity. Where, as in the instant case, the conduct
alleged to have interfered with the election can only be held to
be such interference upon an initial finding that an unfair labor
practice has been committed, it is the Board’s policy not to in-
quire into such matters in the guise of considering objections to
an election. Here, the Employer alleges that its supervisors en-
gaged in discriminatory conduct by favoring Union supporters.
However, there are no pending charges related to such conduct.48
In the absence of a charge alleging that the Employer, by its su-
pervisors, assigned more favorable assignments based on sup-
port for the Union in violation of the Act, the Board will presume
the assignments to be lawful. Texas Meat Packers, Inc., supra.
Therefore, I find no merit to Objection No. 32 and overrule this
objection.
Finally, turning to Objection No. 36, the Employer takes ex-
ception to the hearing officer’s recommendation to overrule Ob-
jection No. 36, alleging that the Union, through its agents and
representatives acting on its behalf or with its implied endorse-
ment, campaigned in such a way to inflame racial and/or ethnic
prejudice of employees, deliberately seeking to overemphasize
or exacerbate racial and/or ethnic feelings by irrelevant, inflam-
matory appeals.
The hearing officer found the Employer did not present evi-
dence on this objection. The Employer points to the testimony
of driver Shaek Farid as evidence that supports this objection. In
this regard, the hearing officer credited the testimony of driver
Farid that when Radwon solicited a card from him in January, he
told Farid that the other employees from Sylhet, a city in Bang-
ladesh, had already signed cards. 49 The record does not specif-
ically establish that Radwon told Farid that he and other employ-
ees from the same region in Bangladesh “needed to stick together
in support of the Union.”
The Board has held that it would set aside elections when a
party embarks on a campaign which seeks to overstress and ex-
acerbate racial feelings by irrelevant, inflammatory appeals.
Sewell Manufacturing Co., 138 NLRB 66 (1962). In Sewell, the
Board found a sustained course of conduct, deliberate and calcu-
lated in intensity, to appeal to racial prejudice. Assuming that the
Sewell standard applies to Radwon’s conduct, the single conver-
sation in this case was not inflammatory in character, setting race
against race, or appealing to animosity rather than to considera-
tion of economic and social conditions and circumstances and of
possible actions in response to them. Record evidence does not
establish that the campaign was calculated to inflame racial

47 343 NLRB 95, 98 (2004).
48 For example, an employee can file an unfair labor practice charge
alleging favoritism by an employer in its assignments based on support
or lack of support for a union. However, it is noted that an employer is
not necessarily responsible for the unlawful conduct of a supervisor un-
less employees have reason to believe that the supervisor is acting for
and on behalf of the employer.
49 At the time, Farid was a new employee in the Howard Beach store,
as he recently transferred from another store. I note that Radwon’s so-
licitation of two employees to sign Union authorization cards is being
hatred or engender conflict between employees of different eth-
nic backgrounds. I find that in the circumstances of this case,
Radwon’s single statement, about 3 months before the election
did not rise to the level of a sustained appeal to racial prejudice
of the type condemned in Sewell and its progeny. Therefore,
Objection No. 38 is overruled. See e.g., Lichtenberg & Co., 296
NLRB 1302 (1989) (where appeals, among other things, to em-
ployees to stick together were not found objectionable).
In light of the foregoing analysis, I find that there is sufficient
evidence to meet the first prong of Harborside on certain con-
duct, i.e., that Radwon, by soliciting authorization cards from his
direct subordinates, telling an employee that he should vote for
the Union and his conduct in connection with a speakerphone
conversation with a former general manager, engaged in conduct
that reasonably tended to coerce or to interfere with employee
free choice.
(2) Whether Radwon’s conduct materially affected the election
outcome
As set forth above, I have found that Radwon’s prounion con-
duct in connection with soliciting authorization cards from his
direct subordinates, telling an employee that he should vote for
the Union and the speakerphone conversation with former Gen-
eral Manager Bablu satisfied the first prong of the Harborside
analysis. However, I find that there is insufficient evidence to
establish that Radwon’s conduct interfered with freedom of
choice to the extent that it materially affected the outcome of the
election. In analyzing Harborside’s second prong, I consider:
(a) the margin of victory in the election; (b) whether the conduct
at issue was widespread or isolated; (c) the timing of the conduct;
(d) the extent to which the conduct became known; and (e) the
lingering effect of the conduct.
With regard to the margin of the election, the tally of ballots
in the election shows 26 ballots were cast for the Union and
eleven ballots were cast against the Union, and there were seven
challenged ballots. Viewing the record evidence in the light
most favorable to the objecting party, I will assume that the seven
challenged ballots were cast against the Union, thus bringing the
Union’s margin of victory to eight. Thus, a shift of at least eight
votes would be necessary to change the election results. The
Employer has not shown that Radwon’s conduct affected eight
or more voters. Rather, viewing the record in the light most fa-
vorable to the Employer, three employees, Forhad Hussain,
Sheak Farid, and Asifuo Islam50 were affected by Radwon’s pro-
union conduct, not a critical number of employees relative to the
Union’s margin of victory.
With regard to whether the conduct at issue was widespread
or isolated, the credited record evidence does not establish that
considered in connection with the Employer’s objections that Radwon,
as a supervisor and agent of the Employer, engaged in objectionable pro-
union conduct. This objection alleges that Radwon was acting on behalf
of the Union when he made the statement at issue.
50 The credited evidence shows Radwon solicited Union authorization
cards from Hussain and Farid. Islam was in the car with Radwon when
Radwon initiated the conversation with Bablu, Radwon also told Islam
he should vote for the Union. The credited evidence does not establish
that any of these three employees told any other employee about Rad-
won’s aforementioned conduct.
DOMINO’S PIZZA LLC 11
Radwon’s card solicitations were widespread. The conversation
with Bablu was an isolated incident. The credited evidence
shows one incident of Radwon telling an employee he should
vote for the Union.
With regard to the timing of the conduct, I recognize that with
regard to the solicitation of cards, the Board has held that the
mere passage of three months between card solicitations and the
election does not mitigate the inherent coercion involved. SNE
Enterprises, Inc., 348 NLRB 1041 (2006). Thus, the timing is
not a mitigating factor here.
With regard to the extent to which the conduct at issue became
known, while Radwon’s prounion conduct in general was well
known, the credited evidence does not show that knowledge of
his solicitation of cards was widespread. Further, the credited
evidence does not show other supervisors solicited employees to
sign cards. Further the conversation with former General Man-
ager Bablu and the conversation wherein Radwon made the
statement on how an employee should vote were directed to-
wards one employee, and the record does not indicate that the
content of the conversations were disseminated.
With regard to whether Radwon’s solicitation of cards would
have a lingering effect, the evidence does not establish that either
of the two employees who Radwon solicited actually accepted a
card from Radwon. It is noted that while the subjective reaction
of employees to the prounion conduct is not considered in deter-
mining whether the conduct would reasonably tend to interfere
with freedom of choice in the election, here it is relevant to
whether the conduct materially affected the outcome of the elec-
tion. In this regard, one employee refused the card that was of-
fered and the testimony of the other employee indicated only that
Radwon asked if the employee if he wanted him to bring him a
card. In circumstances where an employee does not take a card
that is offered, the concerns that there is a false portrait of em-
ployee support for the Union or that the employee would feel
obligated to carry through on their stated intention to support the
Union do not exist. Accordingly, the instant case is distinguish-
able from cases where supervisors solicited cards/signatures on
a petition and employees, reasonably being concerned that the
“right” response will be viewed with favor, and a “wrong” re-
sponse with disfavor, respond by taking the card and/or signing
the petition. Accordingly, I find that the circumstances herein
do not warrant a finding that there is a lingering effect associated
with Radwon’s solicitation of cards.
Finally, with regard to the Employer’s antiunion stance, as set
forth more fully above, the credited record evidence shows that
the Employer engaged in an extensive campaign to advise em-
ployees of its stance against the Union. Indeed, high level man-
agers conducted one or two mandatory meetings a week during
the critical period, i.e., from six to twelve meetings. Director of
Corporate Operations Machim led meetings and told the employ-
ees that they did not need the Union. The meetings lasted one to
two hours. Credited employee testimony indicates high em-
ployee attendance at the Employer’s meetings. Indeed, the Em-
ployer admits managers filled in for unit employees in the store
during the meetings and all employees on the clock were re-
quired to attend. The Employer also posted at least ten notices
containing their message that employees did not need the Union.
Five higher managers conducted “ride alongs” with drivers;
almost every night, two to twelve ride alongs occurred. On ride
alongs, a higher manager spoke directly with a driver on an indi-
vidual basis, topics discussed included that Domino’s already
gave employees certain benefits; that the Union’s chief executive
officer went to jail; that employees did not need a Union; that
they should make up their own minds and “you shouldn’t just go
for it because somebody tells you.”
Further, after Radwon engaged in the conduct encompassed
by Objection No. 28, i.e., attempts to undermine the Employer’s
antiunion stance, higher managers’ immediately disavowed Rad-
won’s support for the Union, indicating the Employer’s opposi-
tion to the Union’s campaign.
Taking into consideration the Employer’s antiunion stance,
employees would likely conclude that Assistant Manager Rad-
won was not speaking or acting on behalf of management when
he engaged in the conduct at issue. Indeed, employee testimony
shows that employees were aware that the Employer did not
want employees to vote for the Union. Management testimony
also confirms that employees present for certain conversations
between the higher managers and Assistant Manager Radwon
would know Radwon and management had a different position
on the Union situation. Thus, I find that the Employer’s exten-
sive campaign against the Union and its higher managers’ imme-
diate specific disavowals of Radwon’s support for the Union
noted above, would mitigate the conduct at issue, i.e., his solici-
tations for two employees to sign cards, his telling an employee
he should vote for the Union and his silence during an em-
ployee’s conversation with former general manager Bablu. See
e.g., Terry Machine Co., 356 NLRB No. 120 (2011) (where an
employer’s extensive antiunion campaign along with explicit
disavowals of area coordinators support for the union disavowed
the area coordinators’ widespread solicitation of employee sig-
natures on a showing of interest petition and a second petition
seeking commitments from employees to vote for the union);
Northeast Iowa Telephone Co., 346 NLRB 465 (2006) (where a
general manager made clear to the employees that the union was
not necessary, such antiunion stance mitigated a supervisor’s
statements that could have been viewed as prounion).
In these circumstances, while Radwon’s prounion conduct in
connection with the solicitation of union authorization cards, his
telling an employee he should vote for the Union and his silence
during the Bablu conversation satisfied the first prong of the
Harborside analysis, I find that the evidence presented does not
indicate that such coercive conduct materially affected the out-
come of the election under the second prong of the Harborside
analysis. Thus, I find there is insufficient evidence to establish
objectionable conduct and I overrule the Employer’s remaining
objections.